The Supreme Court’s Order on Uttarakhand is Absurd

What the court ended up doing was restore president’s rule, effectively removing the chief minister, and asking the high court to send the order which it had not seen but blindly suspended

Lawyers confer against the backdrop of the Supreme Court. Credit: Shome Basu

Lawyers confer against the backdrop of the Supreme Court. Credit: Shome Basu

The Supreme Court’s own book Supreme, but not Infallible – published to celebrate its first 50 years – recalls the American adage: “We are not final because we are infallible, we are infallible only because we are final”. Its April 22 order on president’s rule in Uttarakhand illustrates this adage more than aptly. The Supreme Court passed a fallible order, relying on its supremacy to defend it. The concept of supremacy shields the court even when it passes wrong and absurd orders. Of course, its orders are the law of the land and all authorities must obey them. Drawing on this, the Supreme Court also says even its wrong orders must be obeyed until they are corrected by the court. If uncorrected, they are law even if wrong.

The Uttarakhand case concerned the imposition of president’s rule which is destructive of federalism and electoral democracy. The challenge to the imposition of president’s rule on March 27, 2016 took place in the Uttarakhand high court and was keenly argued by the Congress and BJP. In the first stage, the single judge, U.C. Dhyani, ordered a vote of confidence in the assembly. But there were flaws in this order. As long as president’s rule was not set aside, no orders could be passed. The Supreme Court also secured this by saying no quia time (interim) orders could be passed in president rule cases. But Justice Dhyani’s heart was in the right place, in favour of representative democracy. But, being otherwise flawed, the order was set aside and the matter taken over by a division bench.

The division bench told the Centre that imposition of president’s rule could be horribly wrong and was not infallible. After hearing the matter for several days, on April 21, the division bench (K.M. Joseph CJ and V.K. Bist) dictated a reasoned judgment in open court that president’s rule “undermines the foundation of federalism (and)… toppling of a democratically elected government…breeds cynicism in the heart of the citizens who participate in a democratic system.” It called “defection sinful” (which after the 2003 amendment to the “anti-defection law it most certainly is). They ordered a floor test on April 29. Although the judgment was dictated in court, on April 21, it awaited transcription and signature. But no one was in doubt about the order, so Uttarakhand chief minister Harish Singh Rawat was in power subject to facing a floor test on April 29 which he was prepared to do. You can’t be fairer than that.

No ambiguity at all

But the BJP likes flexing its autocratic power and its attorney general, Mukul Rohatgi, gets aggressive about losing. So he went to the Supreme Court without an order which was listed before Justice Dipak Mishra and Shiva Kirti Singh at 3:30pm on April 22. Arguments were flashed with learned authorities on both sides on whether a publicly dictated order in open court was binding. My own analysis can be put in the form of a catechism:

Did the high court decide the issue on 21st April?

Was the order dictated in open court?

Did the court set aside president’s rule and order a floor test?

Was this order known to all, including the state and Central government?

If known, was the impact of the order that Central rule was over and assembly democracy was restored?

Under these circumstances, was it right for Rawat to take charge as chief minister?

Should Rawat have waited for the signed order even though the order was known?
The signing was a formality. But there was no doubt or ambiguity about the order setting aside president’s rule.

However, Narendra Modi and his AG, Rohatgi, were determined not to follow the order on absurd technicalities even though they were aware of the order and moved the Supreme Court because the order was adverse to the Central government. So, the order didn’t exist because it was not signed, but existed for the purpose of appeal to the Supreme Court!

It seems absurd for the AG to ask the court to set aside an order which, according to him, was not there, but the effect of which he knew to be clear. It was even more absurd to file an appeal against an order which the Centre claimed they had not seen but whose import and consequences were known to them. Both the attorney general and the court were either playing with ‘thin air’ or ‘concrete facts’. The “thin air” argument of the AG was there was no order except on hearsay from his lawyers in Nainital. Well if there was no order, what was he asking to be set aside? If the ‘concrete’ order and its consequences were known, then surely it had to be presented to the Supreme Court before it could be even considered. So what was it? The AG was peeved because an unambiguous ‘concrete order’ had been passed and was acted upon. He accepted this was so. He was simply playing with the court and constitutional justice.

The truth is that the court had no business to suspend the order of a high court which it had not seen. Supreme Court justice cannot be made on hypotheticals or oral explanations by the attorney general that the order was both non-existent and existent but bad. Each and every argument of the AG on merits should have been rejected. Rohatgi could not have it both ways: No order, therefore, interfere. Contents of the order known, accept my attack and interfere. The court erred and assumed both that order was not there and that it was there and the contents known. So what did the Supreme Court put in suspension? Was it the order that was there or the order that was not there?

What should the Supreme Court have done? Clearly Harish Rawat had taken over after an order was made in open court. The high court had ordered a democratic floor test on April 29. The Supreme Court’s order effectively restored president’s rule for a suspended period after it had been struck down. What the Supreme Court should have done is (a) accepted that president’s rule had been struck down (admitted by both parties); (b) ordered status quo protecting the Rawat government until the court examined the judgment and made the status quo subject to the result when the court actually examined the issue and passed a considered order; (c) asked the high court to formally sign the judgment. Obviously “status quo” would also mean that president’s rule could neither be imposed or withdrawn in the meanwhile when Rawat would remain chief minister until further orders. This would have accorded respect to the facts, and the high court decision. This would have been the perfect order.

What the court ended up doing was restore president’s rule, effectively removing the chief minister, and asking the high court to send the order which it had not seen but blindly suspended. One part of status quo was protected in that the Centre was told that it could not exercise its power to impose or withdraw president’s rule. This last precaution was necessary as the entire proceedings in the Arunachal case got scuttled because the Modi government revoked president’s rule in that state.

What a farce! What an absurdity! Suspending an order that wasn’t before it. Removing a chief minsiter after one day in power. Ordering the draconian resumption of president’s rule struck down 24 hours earlier. Indeed were that not the case, why suspend the order without looking at its reasoning. Alas! The days of the ruthless use of president’s rule – which had lapsed for many years – have returned thanks to a dictatorial BJP government. There was a time when attorney generals were fair and balanced. Sadly, those days are over too.

Rajeev Dhavan in a senior advocate at the Supreme Court

  • Sujad Syed

    Looks like only 2 Josephs in the higher judiciary can save our country & deliver some justice!

  • Sjsu Maradi

    Great argument!!

  • Gopal Krishna

    very true. meanwhile, Supreme Court’s Constitution Bench is yet to hear the case about illegality of CBI as per Guwahati High Court’s order authored by Justice I A Ansari. also SC is yet to set up Constitutional Bench (despite order of CJI headed 5 judge bench) to hear the Biometric Aadhaar matter. keeps waiting! Suspension of an unwritten order and inaction on written orders serves the cause of justice!

  • Anjan Basu

    So the Supreme Court had yet to see the order of the HC, wanted it to be despatched post- haste, but passed an order on that order nevertheless! What a lovely merry- go -round! Presumably, the SC wishes devoutly that the HC order did not exist, or that, , if it did, it would look somewhat like what the AG and his client would have liked it to. One is reminded of : ” As I was going up the stair, / I met a man who wasn’t there. / He wasn’t there again today. / I do so wish he’d go away.” God’s sure in his heaven and all’s right with the Indian Supreme Court.

    • Mesquite Ice

      You are just trying to complicate a matter where there is none. Any judgment that is not backed up by detailed reasons is liable to be stayed. How can you curb the powers of the president by passionate please instead of a speaking order clearly detailing the provisions of law that have been violated. The HC should have issued the order on the same day instead of whipping passions by using words like defection is sinful.

  • atulatul32

    then what is the need of court judgment copy? only verbal order should be give. waste of paper should be decreased.

  • Raj Kanwar

    I totally agree with Rajeev Dhavan that the suspension of the Nainital High Court judgement quashing the President’s Rule under Article 356 by the Supreme Court was totally unwarranted and legally untenable under the circumstances. In fact, Supreme Court should not have even admitted the appeal filed by the Union government. Interestingly, Attorney General wanted to have the cake and eat it too. The very fact of quashing the proclamation of the President by the Nainital High Court brings into play the doctrine of status quo ante. Thus Rawat government automatically re-assume the office. Our Constitution doesn’t allow any ‘vacuum’.

    • Mesquite Ice

      Shows your intention when you say “Appeal should not have been admitted” in a case where the Judiciary has undermined the power of Executive and may have altered the basic structure of the constitution.

  • Anurag Deep Gorakhpur

    ‘There was a time when great advocates were fair and balanced. Sadly, those days are over too, Dr Rajiv Dhavan jee. Had it been otherwise, like instead of Rawat some BJP CM would have been there, you would ve argued in a different manner saying the SC is great bcz it takes great and unprecedented steps. Be fair in commenting at least. How about writing something on speaker’s behaviour in the UK assembly? How about suggesting on constitutional morality to Rawat who caught red handed on camra for horse trading? sir

  • Thommy Thomas

    It seems that the only silver lining in the cloud, is that the floor test ordered by the High Court on 29th April 2016 may yet go ahead, since the Supreme Court order at the moment is till 27th April 2016.

  • Mesquite Ice

    The Senior Lawyers have again instead of focusing on legal point are focusing on rhetoric. The question in this whole matter is whether there was a whip. If so only one of two things could have happened. either the whip was disregared by rebel MLA’s in which case the Appropriation Bill could not have passed, and claiming that it has passed amounts to breakdown of constitutional machinery. If the MLA have followed the whip and the Appropriation bill was infact passed the disqualification of MLA’s amounted to breakdown of constitutional machinery.

    The HC claiming defection to be sinful is subject to appeal and liable to be debated. IMHO, tenth shedule has taken away the right of Representatives to represent the voice of their voters and are instead forced to follow the voice of the whip. IMHO, it is a distortion waiting to be correct and i am highly critical of any amendment that prevents a representative of lakhs of people from taking a position independant of the party.

    The HC judgement went way beyond what it was supposed to. Instead of interpreting law, the HC was more interested in using strong language than calm reasoning. The HC judgement instead of dousing the political passions and limiting itself to pure legal principles passed remarks claiming “President need not be perfect”, and did nor realise that HC need also not be perfect. When HC made a few statements in National Herald states, all the senior lawyers found fault with the judge for using unnecessary words, but the same people are now very happy when the HC has used much stronger language and undermined the power of the Executive and thereby altered the basic structure of our constitution.