Parsa Venkateshwar Rao Jr | SC wades into uncertainty in bid to check Modi govt

At a time when Prime Minister Nare-ndra Modi’s government seems to be the monarch of all it surveys, and there is no check on its impudent and imprudent arbitrariness, the Supreme Court is slowly evolving into a tribune of the people, expressing the anguish of ordinary citizens as the political Opposition across the nation is scattered. In the hearing before the apex court over the role played by former Maharashtra governor Bhagat Singh Koshyari in the fall of Uddhav Thackeray’s MVA coalition government last year, Chief Justice D.Y. Chandrachud last week during the hearing stage criticised political meddling by governors, a rap on the knuckles of the governors and of the Narendra Modi government by implication. It should send out a strong message to the country that the constitutional office-holders like governors are abandoning propriety to bat for the ruling party at the Centre. It is a rap on the knuckles of the Modi government about the people chosen to be governors.

In two of its earlier decisions, the Supreme Court had stepped in to check the Modi government’s inaction in one case, and lack of transparency in the other. The first is the appointment of a court-nominated committee to report on how the citizen-investor can be protected from manipulated market volatility; the second is the court-directed framework in choosing the chief election commissioner and the two election commissioners. The display of authoritarianism in the approach and attitude of the Narendra Modi government has been both nonchalant and impudent because it is based on its 300-plus plus strength in the Lok Sabha and the increasing numerical strength of the ruling coalition in the Rajya Sabha.

It is, however, necessary to look a little closely whether the apex court’s intervention is adequate in the case of the committee appointed by it to look into market volatility and the safety of people’s investments in the stock market, and whether it is right for the court to say how election commissioners are to be appointed. These involve both legal and constitutional aspects.

In the first case, the issue came up before the court because of the sharp fall in the share price of the Adani group of companies after the Hindenburg Report, which said that the Adani conglomerate violated laws by propping up shell companies in Mauritius to transfer funds and hype their market value. The court should have addressed the issues arising out of the Hindenburg Report on the Adani group. Instead, the court has approached it tangentially in talking about protecting the interests of investors in cases of manipulated market manipulation. The court expects the committee to suggest safeguards against manipulated bounce and fall in the share prices of companies. It tries to skirt the Adani question.

Why did the court feel that it was not right to address the Adani issue directly? It could be that the court felt that it cannot take cognisance of the report of a New York-based short-seller whose motive was to make profits, and the manipulation had happened in shell companies operating in Mauritius. Had the court ordered an inquiry into the charge of the Adani group manipulating the markets to leverage the share value of their companies, it would have been interpreted that the court was chasing the Adanis’ wrongdoing, when it is the duty of the Securities and Exchange Board of India (Sebi) to do so. There seems to be no provision for the Supreme Court to ask Sebi to submit a report on the Adani companies in the wake of the Hindenburg Report and the beating that the Adani companies’ shares got, which involved the loss of investments of thousands of investors.

The Narendra Modi government has indeed tried to dissuade the court from going into the issue of market volatility and the losses suffered by investors. It also tried to pressure the court by saying that it would suggest the names of those who should be members of the committee, who would then inquire into the matter of market volatility. But Chief Justice Chandrachud fended off the government’s ploy.

The Adani question is the proverbial elephant in the room and there was no way of avoiding it. As the Supreme Court sees its role more in terms of a constitutional court, it would have been embarrassing for the highest court in the land to probe the Adani affairs. Perhaps the Supreme Court could have asked a lower court to inquire into the issue.

The apex court laying down the method for choosing the CEC and the two election commissioners, comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha or of the largest Opposition party, and the Chief Justice of India, raises more questions than it answers. Is this a recommendation to Parliament to make a suitable law to uphold the independence of the Election Commission, or it is a direction that has to be followed? Asking Parliament to enact a suitable law passes muster in a sense but it is for Parliament to decide whether it should bring in such a law.

The second option of the government following the ruling of the court as to how election commissioners are to be appointed raises questions about who should be doing what in a constitutional framework based on the three distinct wings of the legislature, the executive and the judiciary.

The other key issue is whether the Supreme Court can declare a ruling by the Election Commission as invalid? While laws passed by Parliament and all decisions and orders of the government can come under judicial review, the rulings of the Election Commission can also be called into question. And they will relate to a particular decision or ruling.

The Supreme Court should not be saying how an election commissioner is to be appointed, but it can say that a particular decision of the Election Commission violates the constitutional principle of free and fair election, a line of argument adopted by Justice K.M. Joseph in his judgment.

The general mood, however, seems to be that this is not the time to scrutinise the merits of these two decisions of the Supreme Court because they provide a measure of relief from the arbitrary decisions of an executive that enjoys untrammelled power because of its huge parliamentary majority.

The writer is a Delhi-based commentator and analyst