The Civil Writ Petition filed by Supreme Court advocate C.R. Jaya Sukin seeking issual of a writ of mandamus or an appropriate Writ directing President Droupadi Murmu to inaugurate the new parliament building failed to impress the Supreme Court vacation bench of Justices J.K. Maheshwari and P.S. Narasimha, which dismissed it as “withdrawn”.
Sukin, who argued his petition himself, cited Articles 79 and 87 of the constitution to allege that the Lok Sabha Secretariat, arraigned as a respondent, is guilty of violating them in terms of the invites issued for the inauguration of the new parliament building on Sunday, May 28.
Article 79 of the constitution states: “There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People.”
Sukin also referred to Article 87, which he claimed, provides two instances when the president specially addresses both Houses of Parliament. Thus Article 87(1) says that at the commencement of the first session after each general election to the House of the People and at the commencement of the first session of each year, the president shall address both Houses of Parliament assembled together and inform parliament of the causes of its summons.
Sukin argued that the prime minister, as the head of the Executive, has no jurisdiction to inaugurate the new building, as he is only a member of the Lok Sabha. But to a pointed query from the bench as to how he correlates these two provisions to the inauguration of the new building, Sukin could not give a satisfactory answer.
“Not judicially manageable”
Solicitor general Tushar Mehta, who was present, when asked by the bench for his response to the petition, briefly observed that this is not “judicially manageable” meaning, it is not justiciable, because it involves a political question.
As the bench expressed its reluctance to interfere under Article 32 of the constitution dealing with writ jurisdiction, the petitioner sought to withdraw the petition. Mehta, however, opposed the bench’s indulgence to let Sukin withdraw the petition, saying Sukin would then approach the high court with the same petition, unless the bench specifically dismissed it.
Sukin, however, requested the bench to dismiss it as “withdrawn”, as mere dismissal, in his view, would suggest that the court agreed with the executive on this issue.
As suggested by Mehta, the bench then specifically mentioned that it is not inclined to “accept his (Sukin’s) submissions”. “Faced with the said difficulty, the petitioner has sought leave to withdraw this petition,” the bench recorded in its order, so as to convey that the bench considered his submissions and did not find them persuasive, so that the same petition is not entertained by a lower court.
Why a reasoned order was needed
Although the bench refrained from using the phrase suggested by Mehta that the present case is incapable of being dealt with in terms of “judicially manageable standards”, a reasoned order from the bench could have contributed to the public discourse on the controversy, which has divided the political class, with most of the opposition parties deciding to boycott the inaugural ceremony to protest the government’s decision not to invite Murmu.
In Santosh Singh vs Union of India, decided on July 22, 2016, a two-judge bench of the Supreme Court, of the then Chief Justice of India T.S.Thakur and Justice D.Y. Chandrachud, dismissed a writ petition seeking a mandamus for the inclusion of moral science as a compulsory subject in the syllabus of school education from Classes I to XII in order to inculcate moral values and nurture national character in the national interest. The bench reasoned that the petition lacked the ability to unravel the complexities of its contentions, and the answers it proposed. As the solution to the matter does not rest in a legal or constitutional framework, it is incapable of being dealt with in terms of judicially manageable standards, the bench held.
The bench reasoned that the matter before it is a vexed issue, to which more than one solution may appear just. “That is exactly the reason why a resolution of such matters must rest with those who have the responsibility to teach and govern over matters of education,” the bench held.
In Kachchh Jal Sankat Nivaran Samiti vs State of Gujarat (2013), the Supreme Court held that there are no judicially manageable standards for the allocation of water. “A dispute shall not be appropriate for adjudication by this court, when it involves multiple variable and interlocking factors, decision on each of which has bearing on others,” the bench reasoned in this case.
In a recent case, Citizens For Justice and Peace vs Union of India, decided on December 9 last year, a division bench of CJI Chandrachud and Justice P.S. Narasimha had described the reliefs sought by the petitioner as incapable of being dealt with by the application of judicially manageable standards. The petitioner had sought the issual of a writ of mandamus or any other appropriate direction that all processions (religious or any other) should be regulated as per law and settled jurisprudence on routes to be followed, precautions taken and most specifically, not be allowed to pass through areas of other religious denominations, at sensitive times to avoid conflicts.
In Ashish Shelar and Others vs The Maharashtra Legislative Assembly, a three-judge bench of the Supreme Court held on January 28 last year that the fact that parliament is an august body of coordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of power. In this case, the court held that inflicting suspension for a period beyond the period necessary to ensure smooth working/functioning of the House during the session suffers from the vice of being a grossly irrational measure adopted against the erring member, and also substantively illegal and unconstitutional.
In Shivraj Singh Chouhan vs Speaker, Madhya Pradesh Legislative Assembly, the Union government contended before the Supreme Court that the court should be wary of entering the “realm of politics” where no judicially manageable standards can be maintained, and the outcome prescribed by the court is likely to tilt the political balance. The court rejected the submission on the ground that merely because the dispute concerns the conduct of elected representatives, or the remedy sought is a democratic process, does not mean that the court will refuse to consider it.
The court relied on its previous decision in State of Rajasthan vs Union of India (1977) and held:
“Merely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution, if it raises an issue of constitutional determination. Every constitutional question concerns the allocation and exercise of governmental power and no constitutional question can, therefore, fail to be political.”
In view of the non-reasoned order of the Supreme Court in C.R. Jaya Sukin vs Lok Sabha Secretariat on Friday, it is not clear whether the Supreme Court considers the matter of the inauguration of the new parliament building by Prime Minister Modi as incapable of resolution in terms of judicially manageable standards, as laid down by the court in a number of cases.