Brokering Justice in Uttarakhand

The Supreme Court seemed to have carved out a previously unheard procedure, wherein while it sat in appeal over a decision, it deemed fit to enforce its outcome, without pronouncing upon the impugned decision itself.

Supreme Court. Credit: Shome Basu

Supreme Court. Credit: Shome Basu

The controversy on the dissolution of the Uttarakhand assembly by invoking Article 356 appears to have settled after the recently conducted floor test and the reinstated the ousted government. However, no one seems to have noticed or commented upon the way the Supreme Court went about dealing with the Centre’s appeal against the decision of the Uttarakhand high court. The apex court seemed to have carved out a previously unheard procedure, wherein while it sat in appeal over a decision, it deemed fit to enforce its outcome, without pronouncing upon the impugned decision itself.

President’s rule in Uttarakhand

To begin with, it is important to not lose sight of the fact that the high court’s pronouncement on the proclamation of President’s rule culminated in an order requiring the floor test (or the ‘trust vote’) to be conducted immediately. Therefore, when the Centre approached the Supreme Court in appeal, the question of conducting the floor test was ‘directly and centrally in issue,’ which in ordinary course should have been decided by the apex court by way of a judgment. However, the  Supreme Court preferred to negotiate with the attorney general on the possibility of holding a floor test, and in the course of this back and forth, the Centre did actually change its mind on the issue. However, this conduct begs a worrying question – is that the way a court of appeal functions? There is nothing in the law that permits the appellate courts to enforce the outcome of a judgement (upon which it sits appeal) even before formally upholding it. The Supreme Court could have first upheld the high court’s verdict and then gone about conducting the floor test. How would it make the position any different from what ultimately happened in a reversed way? It would not, but the question is a principled one. It was a deviation from legal procedure which one cannot expect from the Supreme Court, which is certainly not envisaged anywhere and one which is a severe blow to procedural fairness. By enforcing the outcome of the impugned decision, this conduct has robbed the ‘to-be’ judgment of any perception of neutrality, given that the legality of holding the floor test was the exact issue in appeal to be adjudicated upon. It is a travesty in that sense – only multiplied since it comes from the Supreme Court of India.

Floor test

This therefore raises an important question – could the apex court have ordered a floor test without deciding the appeal in the first place? In fact, the reverse was done. The President’s rule was temporarily lifted to conduct the Supreme Court ordered floor test, and after the ousted government was reinstated, the Supreme Court later decided to pronounce on merits of the appeal.  After this adventure with legal procedure, what credibility would the final judgment have in terms of objective fairness? Does the very fact that the floor test was ordered without formally upholding the high court’s verdict, not reveal the predisposition of the bench? I do not intend to say that the decision would now not have any credibility whatsoever – it would certainly be the law as declared by the Supreme Court, having sound precedential value. However, the argument is on the perception of neutrality expected from the Supreme Court while it pronounces its judgment. This is a perception which maintains that the Supreme Court’s siding with either of the parties speaks through its judgment, and does not precede it. Now, when the Supreme Court has already enforced the outcome of the impugned decision even before pronouncing its judgment, any talk about a procedural perception of neutrality, goes for a six. Further, the lapse of procedure here has an obvious casualty – it has rendered the ‘to-be’ judgment a mere formality.

I understand that it is tempting to call the Supreme Court’s actions as merely an interim relief, however, that postulation would ignore the fact that an interim relief was already provided when the stay was granted against the Uttarakhand high court’s verdict (which could have continued till the time a judgment was delivered in a fast track manner), and therefore brokering the floor test itself was an action outside the legal framework of interim reliefs. To call a spade a spade, the apex court enforced the high court’s verdict, and rendered to it a justifiable legal validity as well. The only thing that was missing was a judgment on the point – which is the usual way courts uphold decisions of the lower courts, instead of negotiations with the other party preceding the judgment.

Article 356 and Uttarakhand

At this stage, it might also not serve us the purpose to argue that a distinction can be drawn between the original proclamation under Article 356 and the subsequent revocation of the same, to say that till the time the floor test was conducted, the proclamation was justified. This argument, however, is problematic at multiple levels. It ignores the reality that the proclamation tried to avoid the floor test in the first place (since the same was scheduled just a day after the proclamation was issued), which the high court ultimately ordered, making it a question directly in appeal before the apex court, to be adjudicated upon. Therefore, the circumventing of the floor test was inextricably linked to the issue of the proclamation, making this distinction fall flat.

Those familiar with the legal tools evolved to facilitate judicial activism, would argue that enforcing outcomes through orders and reserving the judgment only till the point by when the desired corrective measures have already been undertaken under the supervision of the Supreme Courts, is not a new phenomenon, and indeed where executive action shows utter disregard for individual liberty, these have been welcome steps. I can recount the latest example of this approach from the Delhi high court’s monitoring of the provision of relief materials to the slum/JJ cluster dwellers affected by demolition of the Shakur Basti by the railways during the merciless winters of Delhi, which made headlines only few months back.

There, however, is a distinction in the above kind of cases and the one being discussed here. Enforcement of individual rights through routine judicial orders, keeping the judgment in abeyance, has usually been a resort in PILs or those WPs where the high court or the Supreme Court hears the issue as a first instance one, and not in appeal from a detailed judgment of a lower court. The enforcement of ‘would-be’ outcomes by a court deciding an appeal, without formally upholding/overturning the impugned judgment, can at best be described as a serious oversight, certainly not expected from the highest court of the land.

It might be tempting for us to set aside the principled objections, after all how does it matter whether the justice was ‘brokered’ or not, as long as it was served? The answer lies in the kind of premium we place on the fidelity to the rule of law. One does not need to be a legal expert, or even a law student, to point out that an ends justifying the means argument may work well with extra-legal authorities not bound by a written constitution – but such an argument does not augur well for the Supreme Court (or any court for that matter) which is bound to protect and apply a set of rules binding it. And while I am a fan of judicial activism myself, that is not what the Uttarakhand fiasco was about. Hence, in principle the argument has been made against the serious lapse in procedure.

The crux of the Supreme Court’s approach, in that light, can best be described as that of brokering the floor test in Uttarakhand since by the time it does not discharge its duty to decide the impugned judgment one way or the other, there can be nothing legal in its actions which practically uphold the impugned judgment without formally pronouncing upon it. Amusingly, the Supreme Court has now expressly stated that it will ‘independently’ decide the issue on merits – which at best, may accommodate procedure in its adventures with the Constitution.