Courts can’t be final solution in a democracy

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. 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 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 CM. 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 saids that would make the Governor’s office 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 majority — 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 HC, 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 CJI M.M. Punchhi directed a composite floor test on February 26. Both Mr Singh and Mr Pal sat as CMs on the designated day and Mr Singh emerged victorious. It was a unique incident in which the SC recognised two CMs 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. There is no provision for it. Obviously, it was done under Article 142, which empowers the SC. But this jurisdiction cannot be exercised superseding constitutional provisions.

Later, in Jharkhand case (Anil Kumar Jha vs Union of India, 2005), the Supreme Court gave a direction on how the floor test in the Jharkhand Assembly would be conducted though it has no 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 SC 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 to find whether the 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, is not entitled to enter the Assembly without Speaker’s permission.

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

In 1984, the AP government headed by N.T. Rama Rao was dismissed in a brazen manner. Rao lost the confidence of the House but he did not move the court. He came to Delhi with his MLAs and held a huge meeting at Ramlila Maidan.

Ultimately, his government was reinstated under public pressure. In Uttarakhand, Mr Rawat got a reprieve from the court but was humbled in elections. The tendency to rush to the court reflects distrust of democratic institutions.

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