In a previous piece on the crisis in Uttarakhand, I had hoped that the Supreme Court would not squander the cause of constitutionalism through pusillanimity or passivity. In the series of orders passed last week directing the conduct of a Floor Test for the Uttarakhand State Legislative Assembly, the Court seems to have learnt from its failure in the Arunachal case, and gone ahead to do the right thing in the circumstances.
Save for the befuddling misstep of staying the Uttarakhand’s judgment, on the grounds that it had not seen it (something that epistemologists will spend years trying to make sense of), the Supreme Court’s actions in the last week have been otherwise on the right track.
In agreeing with the Uttarakhand High Court judgment and directing the floor test, the Supreme Court has only followed the principle laid down by the nine judge bench of the apex court in the Bommai case. The detailed directions it has given as to the manner in which the floor test was to be held was also not entirely unprecedented. In Jagdambika Pal and Anil Kumar Jha the Supreme Court had passed detailed directions on what could be done and how things had to be done in the course of the floor test. In both cases, the floor test took place peacefully and matters were put to rest for a while. Though, in fairness, they weren’t as detailed and minute as the orders in this case.
One nagging question, though, cannot be wished away: Should the courts really be concerning themselves with the nitty gritty and the minutiae of what goes on inside legislative assemblies?
To be fair, the Supreme Court’s intervention in the running of the legislature have been few and far between, and have come in exceptional circumstances. In directing the manner and process through which a floor test should be held, it was doing something quite different from the more routine striking down of legislation or hearing challenges to unconstitutional decisions of the Speaker. Any criticism of the former should not be conflated with criticism of the latter. Whereas the latter fall squarely within the ambit of the judicial function in a constitutional democracy, where it is the Court’s duty to ensure that the laws of the legislature and decisions of constitutional authorities meet constitutional standards, it can genuinely be doubted if the Court’s constitutional function requires it to dictate the minutiae of how a floor test should be conducted.
The principled way might have been for the court to take a complete hands off approach to the process. The success or failure of the floor test, that is the manner in which it was conducted should have been left to the Speaker and if chaos or instability resulted, it was not for the court to fix. The pragmatic approach, and one which the Supreme Court has adopted in the Uttarakhand case, is to oversee the procedure so that neither party can complain that the ultimate outcome, regardless of the result of the floor test, was not based on the prejudices or biases of the Speaker or the state government. When parties consent (or are brought around by the Court to consent) to the pragmatic order of the Court to oversee the floor test, one feels the dissatisfaction of a constitutional adjudication descending to the level of a panchayat mediation.
In the circumstances, it may perhaps have been the better thing for the Court to oversee the conduct of the floor test rather than let a vitiated procedure take place to lead to further dispute and deadlock.
Abdicating legislature and executive
When assessing the wisdom of the court’s actions in the Uttarakhand case, we can’t lose sight of the state of the legislature. When Arun Jaitley spoke (in a completely different context) of the judiciary destroying "step by step, brick by brick, the edifice of India’s legislature", perhaps it would not be amiss to examine how much the legislature has itself been devalued from within. Whether it is in the form of disruptions, lack of serious debate on legislation, or of partisan Speakers faithfully toeing the party line, it would seem that much of the damage has been caused to the legislature from within.
The fact that both the parties consented to the Supreme Court’s order directing the manner of the conduct of floor test is a reflection of their sorry inability to work out these issues within the legislative institutions themselves.
In any healthy democracy, institutional disagreement and conflict is inevitable. It would be more worrying if the judiciary were to give full deference to the legislature or if the legislature accepted judicial overreach without murmur. It is not always possible, and it may even be inadvisable to draw institutional boundaries too rigidly and finely. In principle, the Supreme Court’s detailed order directing the manner of floor test in the Uttarakhand may have been a step beyond its institutional domain. Pragmatically though, in light of the circumstances and the state of affairs, it may have been driven to do so by necessity.