Sunday, January 6, 2008

Separation of powers

Separation of powers

By Rajeev Dhavan

While the judiciary must step in when necessary, how it does so requires craft and statesmanship. Jharkhand should not become a precedent.

AT A public function on March 6, 2005, Chief Justice R.C. Lahoti made it abundantly clear — and rightly so — that he would resist any move by the Government to bring the higher judiciary under Lok Pal devised for the administration. In fact, there is little danger of this happening because creating a Lok Pal for the Centre seems to have eluded Parliament for almost 40 years. The point at issue was not that oversight machinery should not be created to check maladministration in the judiciary — but that such a mechanism could not be devised for the judiciary as if it were a mere bureaucracy of the state. Chief Justice Lahoti's stance is based on a statement of principle that both the doctrine of separation of powers and independence of judiciary require that neither the executive nor the legislature can interfere with or supervise the working of the judiciary. No Constitution can function if the autonomy of each of the organs of the Government — the legislature, executive and judiciary — is not respected.

Although the tasks of governance cannot be put in watertight compartments, the Indian Constitution respects the comity amongst these great institutions by laying down that the courts cannot inquire into the validity of the proceedings of the legislatures (Articles 122 and 212), the legislatures cannot discuss the conduct of a judge of the High Court or the Supreme Court except in matters of impeachment (Articles 121 and 211), and the President and Governors enjoy immunity from court proceedings (Article 361). The most celebrated example of the breakdown of this constitutional comity was in Uttar Pradesh in 1964 when the State Legislature threatened to imprison two judges for breach of privilege saying they had interfered with an order of arrest issued by it. The Allahabad High Court interfered with these proceedings of the legislature. The deadlock was resolved by an advisory opinion of the Supreme Court which gave the High Courts and the Supreme Court the power to deal with issues of constitutionality but not interfere with the proceedings of the legislature.

Over the years, the balance of emphasis in these matters has shifted with the courts acquiring a greater judicial review over the President, the Governor and the legislatures. While Governors enjoy immunity, unconstitutional acts on their part can be examined by the courts. In recent years, in the Swaran Singh case (1998) the Supreme Court intervened to declare the Governor's pardon of a convict unconstitutional. (A member of the Uttar Pradesh Legislative Assembly was convicted of murder and awarded the life sentence. The Governor remitted the sentence when the convict had served barely two years.) In the celebrated Bommai case (1993), judges claimed the power to review the imposition of President's Rule — even though the minority judges felt that such an exercise was not "judicially manageable." After the anti-defection constitutional amendment of 1985, there have been many cases in which the higher judiciary has examined anti-defection cases even though in the Goa cases (1994), the Court initially took a narrow view of the extent of its power.

In later cases, the courts have exercised a more exacting review of anti-defection cases in the legislature. Since then, there have been many political crises in which the Governor's actions of appointing or dismissing a Chief Minister have been questioned by the High Courts. In the Uttar Pradesh Chief Minister Dismissal case (1998), the High Court rendered the Governor's dismissal of the Chief Minister unconstitutional and the Supreme Court ordered a confidence motion in the legislature. This was an unprecedented action. The better view is that it is not for the High Court or the Supreme Court to interfere with the exercise of the Governor's or the President's discretionary powers unless such an exercise of powers is mala fide or utterly unreasonable. The view may well be that in the Uttar Pradesh Dismissal case, the High Court should have been more circumspect than invalidate the Governor's actions and that the Supreme Court exceeded its powers in not just ordering the legislature to hold a confidence vote but in detailing how the proceedings of the legislature should be conducted in this regard. Unfortunately, this precedent was invoked in the Jharkhand crisis of 2005.

The months of February-March 2005 have tested the working of the separation of powers in India. There can be little doubt that in Goa, Governor S.C. Jamir should not have sacked Chief Minister Manohar Parrikar who had just an hour earlier won a confidence vote. The Chief Minister could have been asked to re-test his majority, but his dismissal seemed overtly unconstitutional. But the case of Jharkhand was different. Governor Syed Sibtey Razi was faced with a dilemma. The National Democratic Alliance claimed the support of 41 in a House of 81. But one vote seemed doubtful since the MLA concerned belonged to a party that supported the United Progressive Alliance which claimed the support of 42 MLAs. The situation was unsettling. The Governor swore in the UPA candidate, Shibu Soren, as Chief Minister and gave him almost 20 days to prove his majority whilst the NDA virtually placed its legislators, who travelled from Jharkhand to Orissa to Delhi to Rajasthan to Jharkhand, in protective political custody.

In my view, the Governor was within the permissible limits of his discretion in choosing a Chief Minister as well as scheduling the confidence vote. The Supreme Court thought otherwise. The Supreme Court can be approached directly only if there is a breach of fundamental right. The right to be Chief Minister is not a fundamental right — not even as part of good governance. However, the Court heard the matter on the basis of a one-sided view of the NDA Chief Ministerial candidate. It assumed that the competing claims were 36 for the NDA and 26 for the UPA; and during proceedings, presumed that there was some kind of constitutional convention that the leader of the largest pre-poll alliance must be invited to become a Chief Minister. No such convention exists in fact. With such one-sided inputs, the Supreme Court passed an ex parte order on March 9, 2005 that prima facie, there may have been a fraud on the Constitution which required immediate rectification. The Supreme Court then proceeded to give six directions: (i) bring forward the vote to March 11 (ii) restrict the agenda of the legislature to the confidence vote (iii) direct that the proceedings of the legislature be peaceful (iv) the pro tem Speaker record the result and report back (v) the police and administration provide safety and protection and (vi) make a video-recording of the proceedings.

This composite direction of the Supreme Court has given rise to considerable controversy. Speakers are concerned that the judiciary should not interfere with the internal proceedings of the House and tell them how to conduct its affairs. Suppose the Chief Minister wanted not just a vote but a full- fledged debate? Indeed Prime Minister Atal Bihari Vajpayee obtained just that for his ill-fated 13 days' Government in 1996. Was it not for the Governor to adjudge whether the House should be called later in the light of various events, including the fact that half the members of the legislature had been physically hijacked by the NDA? Should the agenda of the legislature have been determined by the Supreme Court? Could the administration have been ordered to keep order in the House?

This raises important issues relating to separation of powers. If the Court felt that something needed to be done, it could have asked the Governor to reconsider the matter. Instead, the Court substituted its own discretion for that of the Governor. Earlier cases from the High Courts of Calcutta (1968), Guwahati (1982), Madras (1989) and Patna (1999) suggest that the Governor's discretion be respected. In the Jharkhand case, the Court's directions were constitutionally invasive of the legislature's working. These things are not `judicially manageable.' Suppose the legislature had not carried out these directions, what would the Court have done? As it happens, Mr. Soren resigned. But suppose he had not? Would the Court have held a large number of legislators as well as the pro tem Speaker in contempt?

The famous decision of U.S. Chief Justice John Marshall in the Marbury versus Madison case in 1804 is reputedly an example of judicial craftsmanship in that the Supreme Court asserted its power without risking its orders not being obeyed. The judiciary is the custodian of the Constitution and must prevent it from being abused. But if the principles of comity on which the balanced working of the Constitution depends are upset, the authority of the Constitution and its prime custodian may well be hurt in the process. While the judiciary must step in when necessary, how it does so requires craft and statesmanship. The Supreme Court's orders in the Jharkhand Case should not be treated as a precedent.

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