Judiciary asserts its independence

Judiciary asserts its independence

By Pankaj Vohra | 23 April, 2016

The order of the Uttarakhand High Court reinstating the Congress government in the state and as a consequence ending the controversial President’s Rule has demonstrated that the Indian judiciary was not going to be ever over-awed by the action of the executive and was committed to upholding the Constitution and the rule of law. There may be many opinions on the verdict by a division bench comprising Chief Justice K.M. Joseph and Justice V.K. Bist, which the Centre has challenged in the Apex Court, but there can be no denying that the two distinguished judges, by their order, have asserted the independence of our judiciary. The Supreme Court on Friday gave an interim injunction by staying the High Court order. It clarified that it was keeping in abeyance the judgement of the High Court till the next date of hearing on 27 April as a measure of balance since the copy of the verdict was not made available to the parties.

Nevertheless, the proclamation of the President’s Rule a day ahead of the date set by the state Governor, Dr K.K. Paul for a floor test by the Harish Rawat government had taken everyone by surprise since the act was perceived to be in contravention of the Supreme Court judgement in the S.R. Bommai case. The landmark Bommai judgement had once and for all settled the conditions under which President’s Rule could be imposed in a state and had laid down a framework for the use of Article 356 of the Constitution. It had further made it virtually mandatory that a floor test was the only way of establishing whether an elected government had a majority or not. Any other method was not acceptable. The Union Cabinet’s view, on the developments in Uttarakhand after nine Congress MLAs had apparently turned “rebels” and had allegedly not supported the passing of the Appropriation Bill, was not seen to be consistent with the Bommai judgement, even though the Centre had argued that the “defeat” of the Finance Bill had plunged the hill state into a constitutional crisis.

Sources within the government stated that there was a clear cut difference of opinion within the Cabinet on the issue, where at least two senior ministers opposed the dismissal of the elected government. However, they were overruled before the government decided to go to President Pranab Mukheree recommending the use of Article 356. This was done despite the fact that Governor Paul at no stage had made such a suggestion in writing to the Centre and was seemingly keen to allow the floor test to determine the fate of the Rawat ministry.

Justice Joseph and Justice Bist, by their path breaking judgement, have acted according to the best traditions of democratic practices. India does not have a clear demarcation of separation of powers between the three wings of the government—executive, legislature and judiciary—but observes its objectives in action. The fathers of our Constitution had been inspired by Montesquieu’s theory of separation of powers that resulted in the system of checks and balances, which is prevalent in many countries such as the United States and France.

Eminent French political philosopher Montesquieu was influenced by the ancient Greek and Roman system of demarcating the powers of the three branches so that they did not overstep each other’s jurisdiction and thereby exercised restraint. The system has succeeded in democracies with the presidential system, but is not as effective in countries where the Parliamentary form exists.

In India, for instance, the legislature and the executive are rolled into one, with the Prime Minister being both the executive head of the government as well as the leader of the majority party in the legislature (Parliament). However, the system observes the essence of the objectives. Therefore, the Indian judiciary, time and again, comes out with rulings which are free from the influences of the parties in power and conform to the principles of law and Constitution. Such orders highlight the independence of the judiciary, so important for any democracy.

The High Court order has far reaching ramifications politically and any government at the Centre would ruminate several times before resorting to any kind of political adventurism. It can definitely be discerned as a major setback for the BJP, which was being accused by its opponents of trying to topple governments by engineering defections. The BJP and the political establishment have to comprehend that in a democracy, elections are the only legitimate way of coming to power. The hard- hitting quote by Montesquieu, “there is no crueller tyranny than that which perpetuates under the shield of law and in the name of justice” in this instance is most apt.

The High Court’s actions could have halted plans, if any, of the ruling party to replicate what it did in Uttarakhand and Arunanchal in other states such as Himachal. The Congress is on cloud nine but has to realise that the crisis in Uttarakhand was as much its own creation as it was the political folly of the BJP. The party must get its house in order before accusing its rivals of overthrowing and dislodging its governments. The entire episode of President’s Rule could have been prevented had the Congress taken internal measures to assess the looming threat from its own dissidents. If the Rawat government has got a reprieve it is little thanks to the party leadership. An independent judiciary has saved the day for its government momentarily. The first test it has to pass will be on the floor of the Assembly next Friday. Thereafter, many more arduous tests will follow. Between us.


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