Saturday 15 December 2018

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Full Marks For Uttarakhand Judgement

 

The open court remarks are worth placing on record. “there is no king or absolutism. Howsoever high you are, the law is above you. Legitimacy of relevant inference drawn from the material that is placed before president is open to judicial review’.


The Uttarakhand High Court and particularly the bench headed by the chief justice deserves full marks. This has never happened before in our judicial history. We do not have a single government brought back to life after a court order as the judgements come after a long time and at a time when the public has forgotten the events. In Uttarakhand, it was an extraordinary situation and the Uttarakhand High Court provided an unprecedented remedy. It set aside the proclamation imposing President’s rule and ordered restoration of status quo ante. It was expected that after elaborate arguments over the imposition of President’s rule, the bench would reserve the verdict. It was feared that before passing of the judgement, the central government would revoke President’s rule and install a BJP government, thus making the entire judgement infructuous. Taking into account the seriousness, the Uttarakhand High court has set aside the President’s rule. The court gave no time for the central government to manipulate. 

What was coming was known from the tone and tenor of the utterances of the bench. The bench earlier told the central government not to provoke them into passing the judgement. It was only seeking an assurance that the central government would let the court decide and not present a case of fait accompli after the President’s rule was revoked and a new government brought in place. The open court remarks are worth placing on record. “there is no king or absolutism. Howsoever high you are, the law is above you. Legitimacy of relevant inference drawn from the material that is placed before president is open to judicial review’. The court was dealing with the government’s case of ‘political wisdom’. The court was clear people can go wrong be the present or the judges.  But they are all subject to judicial review.

The BJP’s agenda of Congress-Mukt Bharat is having its toll on the federal structure of this country. It was Arunachal Pradesh where despite the matter being heard before the Hon’ble Supreme Court in the matter of imposition of President’s rule the governor swore in a BJP supported chief minister, making the Supreme Court hearing infructuous.

The Uttarakhand High Court was hearing the issue over the imposition of the President’s rule one day before the floor test ordered by the Governor. The Arunachal case must have been fresh in the minds of the judges in the Uttarakhand High Court. it was in that context that the court sought an assurance from the central government. When the Central law officer refused to give an undertaking that such a course would not be adopted and as the media reports showed that the BJP was inching towards formation of the government, the two-judge bench headed by the chief K. M. Joseph with V. K. Bist J. acted swiftly, decisively and saved the honour of the court. They did not allow the government to waylay the court and or the judgement by manipulating behind the closed doors. The chief justice’s bench has provided its mettle. It is such judges that has kept our democracy in place.

 

Earlier a single judge had refused to stay the disqualification  of 9 MLAS under the anti-defection law. The bench took up with the alacrity it deserved and brought it to a logical conclusion. Even the case of S. R. Bommai and thereafter in the case of Rameshwar Prasad (Bihar dissolution case) the Supreme Court judgements came only after fresh elections were held. Let us only hope that in this case the Supreme Court decides the matter with the same alacrity shown by the Uttarakhand High Court.

There can be no doubt that the Speakers have managed to manipulate majorities in favour of the state. But after the change in the anti-defection law whereby the ‘split’ was done away with the Speaker’s decision making power is curtailed  to the extent that the only way to save from the clutches of the anti-defection law is 2/3rds for a merger. In any case both in Arunachal and Uttarakhand it was not the case of merger. It was a clear case of the central government acting with its avowed objectives of providing a Congress-Mukt Bharat by displacing opposition-ruled governments.

In the matter of S. R. Bommai the Supreme Court dealt with all possible issues in the matter of imposition of President’s rule. Nine-member bench laid down the law and one judge even called upon the government to produce material on the basis of which President acted. The court had said ‘if the fabric of pluralism and pluralist democracy and the unity and the integrity of the country are to be deserved, judiciary in the circumstances is the only institution which can act as a saviour of the system and after nation’. The court ordained that whether the chief minister has lost majority in support of Assembly has to be decided not in the governor’s chamber but on the floor of the House.

It must be noted that the BJP now and BJP earlier are no different. Even after S. R. Bommai case, the BJP government recommended the imposition of President’s rule in Bihar much to the disapproval of then President K. R. Narayanan. Due to lack of majority in the Rajya Sabha, Rabri Devi had to be brought back as the chief minister upon revocation of the President’s rule. The story of Jagdambika Pal and Kalyan Singh sitting on both the sides of the speak to have a composite floor test was another novel way of dealing with an unprecedented situation precipitated  by  the  Governor Ramesh Bhandari.

It was felt that after a huge mandate in Lok Sabha in 2014, the central government would concentrate on issues of governance leaving the state to look after its test. But the objective of bringing about the Congress-Mukt Bharat has made the government act exactly in the same manner as Indira Gandhi dealt with the opposition.  




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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

 

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