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  Opinion   Columnists  22 Mar 2017  Courts can’t be the final solution in a democracy

Courts can’t be the final solution in a democracy

The writer is a senior TV journalist and author
Published : Mar 22, 2017, 2:29 am IST
Updated : Mar 22, 2017, 6:15 am IST

The tendency to rush to the court reflects on the distrust of democratic institutions.

Supreme Court of India.
 Supreme Court of India.

Of the many institutions atrophied by the loss of credibility, the office of governor is the foremost. Since many governors have allowed themselves to be used as hatchet persons of the Centre, it is easy to besmirch them as partisan. It gives the judiciary a chance to intervene even where it has no jurisdiction. Political parties are quite dotty about moving the court when in Opposition, but decry this tendency when in power. In Goa’s case, the leader of the Congress legislature party moved the Supreme Court asking it to stall the swearing-in of Manohar Parrikar as chief minister of Goa. Showing restraint, the court rejected this plea, but advanced the floor test from 15 days to 48 hours. Surprisingly, the Congress demanded the composite floor test, which is nowhere provided in the Constitution. The court rightly quipped that it would make the office of governor redundant.

However, it is pertinent to remember that it was the Supreme Court which passed the unprecedented order to hold the composite floor test in Jagdambika Pal vs Union Of India And Ors (1999) to ascertain as to who enjoyed the majority support — Kalyan Singh or Jagdambika Pal. The state government headed by Mr Singh was dismissed on February 21, 1998 by governor Romesh Bhandari, who had appointed Mr Pal as CM. Mr Singh moved the Allahabad high court, which reinstated his government on February 23 holding the dismissal unconstitutional. Mr Pal challenged it in the Supreme Court. On February 24, a bench headed by chief justice M.M. Punchhi directed to hold a composite floor test on February 26. Both Mr Singh and Mr Pal sat as chief ministers on the designated day and the floor test was conducted in which Mr Singh emerged victorious. It was a unique incident in which the apex court recognised two chief ministers of state at a time. The court should have upheld or set aside the decision of the high court, but it preferred to keep mum on the main issue and ordered for the composite floor test which is not provided in the Constitution. There is no provision for it, which would make the office of the governor superfluous. Obviously, it was done under Article 142, which empowers the apex court to “pass such decree or make such order as is necessary for doing complete justice in any matter or cause pending before it”, but this jurisdiction cannot be exercised superseding constitutional/statutory provisions.

Later, in Jharkhand case (Anil Kumar Jha vs Union of India, 2005), the Supreme Court gave a detailed direction as to how the floor test in the Jharkhand Legislative Assembly would be conducted though it has no such jurisdiction. It was a game changer judgment that altered the relations between the judiciary and the legislature for good.

In the Uttarakhand case (Union of India vs Harish Chandra Singh Rawat, 2016), adjudicating the legality of the President’s Rule, the Supreme Court created a constitutional void for three hours by asking the Centre to lift it for three hours on May 10, 2016 for conducting the floor test whether the unseated Harish Rawat government enjoyed confidence of the House. It debarred the Speaker from presiding over the proceedings. Instead it appointed principal secretary, legislative and parliamentary affairs, state of Uttarakhand and secretary, Legislative Assembly, for the purpose. It may be noted that the principal secretary, legislative and parliamentary affairs, was not entitled to enter the premise of the Legislative Assembly without Speaker’s permission.

There was no government for this period in the state as there was neither the state government nor the Central rule. Thus, the President’s Rule was converted into curfew, which was lifted for some time so that people could buy essential items.

It is in flagrant violation of Article 212 of the Constitution which mandates that the validity of any proceedings in the legislature of a state shall not be called in question on the ground of any alleged irregularity of procedure, and no officer or member of the legislature of a state in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

This time, the Supreme Court did not go overboard and only advanced the trial of strength. But the parties must realise that in a democracy, they have to appeal to the people’s constituency.

Courts, like painkillers, can provide instant relief, but the permanent relief can be obtained from people’s court only.

In 1984, the Andhra Pradesh government headed by N.T. Rama Rao was dismissed in a most brazen manner. Though Rao was dismissed illegally, he did not move the court. He came to Delhi with the flock of his MLAs and held a huge public meeting at Ramlila Maidan, which was addressed by leaders of major political parties.

Ultimately, his government was reinstated under people’s pressure. In Uttarakhand, Mr Rawat got a reprieve from the court but was humbled in the elections. The relief was shortlived.

The tendency to rush to the court reflects on the distrust of democratic institutions.

It is true that most of the institutions like that of governor and Speaker have become partisan, but the remedy lies in strengthening these institutions by making public opinion. Constitutional morality is more important than constitutional legality. Let people punish those subverting these institutions.

Tags: manohar parrikar, kalyan singh, supreme court, democracy