As Supreme Court’s Arunachal Order Shows, Constitutional Procedure Is Paramount

The court’s rejection of the recent use of Article 356 is a reminder that there is no alternative to strictly adhering to the constitutionally laid down procedures.

Supreme Court of India. Credit: PTI

Supreme Court of India. Credit: PTI

The Supreme Court judgement declaring Arunachal Pradesh Governor J.P. Rajkhowa’s actions as illegal and unconstitutional comes as a morale booster for those who had begun to feel that India was potentially regressing to the 1970s, when Article 356 was used 21 times in a matter of just five years by the Congress and the Janata Party to dismiss legitimately elected state governments. Unfortunately, some of the arrogance, bitterness and combativeness that had characterised the politics of that era exists today. It has become a matter of grave concern for right thinking individuals across the political and social spectrum as to where this combative politics is heading.

It will be totally narrow and limiting to view the Supreme Court verdicts in the case of Uttarakhand and Arunachal Pradesh as a blow to the BJP and a victory for the main opposition, the Congress. In fact these verdicts, seen together, represent something more profound. They come as a relief to all Indians who have contributed to the hard-won political battles through the ballot box, which have led to the progressive cementing of our democratic values and traditions. Of course, such freedoms cannot be taken for granted and cracks do appear from time to time, caused by regressive forces that pretend to fully abide by the constitution but may be tempted to run other subterranean agendas. Political scientist Partha Chatterjee has spoken of the dangerous temptation of replacing “fair procedure” with a “fair person” in a constitutional democracy. This temptation may occur from time to time before sanity returns. There is no substitute for fair constitutional procedure and we have all seen how “fair persons” degenerate into megalomaniacs, in the past as well as the present.

So in a sense, the apex court’s verdicts rejecting the use of Article 356 in Uttarakhand and Arunachal Pradesh are reminders to all that there is absolutely no alternative to strictly adhering to the constitutionally laid down procedures. For all we know, Congress leader Nabam Tuki, now restored to the chief minister’s post, may not win the floor test, given the fractious nature of Arunachal politics. That will in now way lessen the legal and moral weight of the judgement. At least the matter would have been legitimately settled within the assembly through a floor test and not arbitrarily in some banquet hall where a patently biased governor calls a hurried meeting of the assembly to dismiss the chief minister and speaker. The Supreme Court has made scathing observations against the governor for showing undue interest in the politics within the assembly when he was simply expected to be neutral observer and allow such disputes to be resolved in the appropriate constitutional forums. After all, the 14 Congress MLAs dismissed by the speaker did go to the Gauhati high court and were given the necessary relief. The apex court also severely indicted Rajkhowa for advancing the legislative assembly session from January 14, 2016, to December 16, 2015. The constitutional bench said the governor could not direct the speaker on how the proceedings should be conducted and fix the agenda for the house, such as the dismissal of the speaker as the first item. The governor should have gone entirely by the advice of the state council of ministers on summoning the assembly. Such basic tenets and procedures were thrown to the wind by a governor who was obviously not acting on his own. There is no doubt that the BJP leadership was in remote control. Indeed, the sheer abrasiveness of the governor’s actions merely reflected the attitude often displayed by the BJP leadership on numerous other occasions, including in Uttarakhand where the remote controllers could not wait even 48 hours for a floor test in the assembly.

A crisis for the BJP

The Modi government’s instinctive – read combative – first response to the scathing Supreme Court judgement in the Arunachal case was to formally seek some clarifications from the same bench. This would have been disastrous, to say the very least. Then, some saner counsel prevailed and the Centre decided to keep quiet and wait for the floor test, which should happen in due course. Perhaps, the BJP leadership chose to let incumbent chief minister Kalikho Pul be disrespectful to the Supreme Court by saying it could not decide who forms a government. But the apex court can definitely decide who forms the government by following a legal-constitutional procedure. The political class must never forget that.

The court’s intervention has certainly created a crisis of sorts for the BJP leadership, however much it may pretend otherwise. Parliament reconvenes next week and the opposition parties will come at the government with renewed vigour. Parallelly, the relationship between the Modi government and the higher judiciary has been worsening in recent times. Prime Minister Nadrendra Modi bringing in a new law minister during the recent reshuffle is an acknowledgement of this fact. There is consensus among top jurists that the Centre has bungled its negotiations with the Supreme Court on the constitution and composition of the National Judicial Appointments Commission. When the Chief Justice T.S. Thakur’s eyes welled up recently in the presence of the prime minister, they were tears of anger and frustration at the way the government was doing brinkmanship on filling vacancies in the higher judiciary.

The most recent provocation from the Centre is to propose a new set of procedures for the appointment of chief justice of India where the seniority principle need not be the sole consideration. This is clearly aimed at creating differences among the top three or four judges. But this may not work. Indeed, it may have the opposite effect, going by the current mood of the judiciary. There is also a dangerous suggestion to rely more formally on Intelligence Bureau (IB) reports on the appointment of top judges. Do remember the manner in which half-baked IB findings were leaked to the media about eminent advocate Gopal Subramanian, who was specially invited and short-listed by Chief Justice R.M. Lodha to become a judge of the Supreme Court just after the NDA came to power. The NDA was bent on scuttling Subramanian’s chances because he was the court-appointed amicus who assisted the court in the Sohrabuddin fake encounter case, in which Amit Shah was then the main accused.

In fact, if truth be told, the NDA has had an uneasy relationship with the Supreme Court from day one. The BJP, which hailed the Supreme Court as a saviour of institutions during UPA II, suddenly started finding the apex court’s activism unpalatable. Of late, senior cabinet ministers are taunting the court’s judges by suggesting they should fight elections and join the executive rather than make policy from the courtroom. Where this confrontation is heading one does not know. What one knows for sure is that the Supreme Court has stood up to uphold constitutional values and procedures in the face of constant assault on them by the ruling formation. For this the citizens must be ever so thankful.