`Supreme Court should rationalise its action'

Fali Nariman speaks on the Jharkand episode.

ONE of India's leading constitutional law experts, Fali S. Nariman has been practising since 1950 when he first enrolled in the Bombay High Court. He became a senior advocate in the Supreme Court in 1971. He was appointed Additional Solicitor-General of India in 1972, but he resigned a day after the Emergency was imposed in June 1975.

Nariman has held a number of important posts, including that of Chairman of the Executive Committee of the International Commission of Jurists and of the President of the Bar Association of India. He was awarded the Padma Bhushan in 1991 in recognition of his distinguished service in the field of jurisprudence. In 1995, the International Bar Association named Nariman a `Living Legend of the Law'. He was awarded the Global Media Laurel at the International Conference of the World Association of Press Councils in Istanbul in 1998. Nariman was nominated to the Rajya Sabha in 1999. He was awarded the 2002 Justice Prize of the Peter Gruber Foundation for what the Foundation has termed "his exceptional leadership in a legal community whose thinkers and doers have inspired the development of a creative jurisprudence that facilitates the binding together of a diverse nation, helps control the exercise of public power and seeks to enable the poor, minorities and the marginalised to claim their basic rights to human dignity."

Nariman spoke at length to Siddharth Narrain on the constitutional issues relating to the recent political developments in Jharkhand. He touched upon the implications of the Supreme Court's order and the roles of the Governor of Jharkhand, the Speaker of the Lok Sabha and the Central government in the context of the constitutional doctrine of separation of powers. Excerpts:

On the action of the Supreme Court:

The Supreme Court did not quash the order of the Governor. If it had done so, it would have been perfectly within its jurisdiction to do so. In extreme circumstances, the Supreme Court could have stayed the Governor's choice of Chief Minister or could have set it aside. But the Supreme Court did not do that. The Supreme Court, by an interim order, said that the House would function in a particular manner with the pro tem Speaker doing particular acts, meet at a particular time, will have a particular agenda such as vote of no confidence. This in my opinion is an interference with what happens inside the House. Just as what happens inside the courts is not to be looked at by the legislature, the events inside the House cannot be prescribed by the courts. That is the constitutional question. Even if the Governor was wrong, there is a way in which the court could have done the same thing, namely, by showing its displeasure at these political gymnastics and striking down the order of the Governor, or recalling or staying the order. The government at the Centre did not do the right thing. It should have requested the Governor to leave. He did something that is not permitted by convention.

On the Lok Sabha Speaker's suggestion that the Central government refer the matter to the Supreme Court:

This constitutional question is what vexed the Speaker of the Lok Sabha. In my opinion, the government would have done well to have formulated a question or two, put it to the Supreme Court, and argued in favour of the interim order if it wanted to. There is nothing to prevent the government from doing this. There is no confrontation with the court such as: "Yes, you are right, sir, but let us have your reason for it." Because in the interim order that was passed, there is no reason given. One way of putting it, perhaps is: "Can the courts interfere, when it is proven to the courts that there is a complete breakdown of constitutional morality, which today is happening all over?"

One great problem that we should consider is whether the framers of our Constitution were right in giving State legislatures the same exalted status that they have given Parliament. Many State legislatures do not function as well as they are expected to. They have appointed Speakers who are not willing to cut their roots with the political parties that appointed them. All these problems have cropped up in the last 50 years. So we should perhaps have a re-look. All this requires a fresh debate. We have a problem on our hands. The only authority that can finally interpret the Constitution is the Supreme Court itself, which can rationalise its order if it wants to. It can say that this was done under extreme circumstances and therefore it thinks that this was a proper exercise of power. There is no difficulty there. Because these are the great organs of state theoretically, even though many State legislatures and courts are not functioning like great organs. Citing one case or the other does not help in this situation. We now have to learn from the rich political experience that we have gained over the past 50 years in the working of our legislatures, which leaves considerable doubt whether the State legislatures are cut out to be in the same exalted position as Parliament.

What is worrying me is that orders like these serve as precedents for High Courts, which have the same jurisdiction as the Supreme Court to interfere and prescribe when a particular legislature should meet or should not meet. One retired Chief Justice has put the point across very well when he says: "Why do politicians approach courts? To solve their problems." There has to be a rationalisation - when courts can prescribe when a particular matter can be discussed and so on. These are matters pertaining entirely to the legislature. Just like the legislature and even Parliament cannot decide what should happen within courts. That is why there is a division of power and in the division of power, the supremacy is ultimately with the Supreme Court because the Supreme Court is the ultimate interpreter of the Constitution. Our Parliament cannot override the interpretation of the Constitution by the Supreme Court. That is why the Speaker of the Lok Sabha, who was anguished, said that this does not appear to be correct because if this can happen, then a High Court can tell the Lok Sabha when to sit, when not to sit, what decisions should be taken, how many members should be present, and what the agenda should be.

The Supreme Court in a rational decision would have made this clear that this was not its intention. But here the Judges were convinced that the whole system of constitutional morality had broken down and this was the only way they could express their displeasure about it. But the Supreme Court order has no real reasoning. It just says that prima facie we are satisfied, therefore we issue the following directions. The question is whether you can issue those directions. If you are satisfied, please strike down the order. But this is also difficult. To say that a Chief Minister who is sworn in should be `unsworn' is a problem. If the court is impressed that the action of the Governor is so monstrous, strike it down. Could it have been done in the first hearing? Why not?

What the Supreme Court could have done instead:

The Supreme Court should have said: "Yes, the Governor has passed a monstrous order. He should never have sworn in a person who, he was convinced, would never have a majority in the House. Therefore we express our great displeasure and for that reason we strike down the order of the Governor." I would have lauded the court if it had done that.

The problem is that it went about it in a different way. It elaborated what the Speaker should do, the House should do, that everyone should attend, that police forces should be there, that the session be videotaped and that the Speaker should declare the result truthfully and faithfully. It is as if it were dealing with some administrative body, and as if it were part of administrative law. Legislature is not part of administrative law. We are not concerned with personalities. We are not concerned with who the Speaker was, how good or wretched he was, or who the Governor was and how good or wretched he was. We are concerned with the institution. If it can happen here, it can happen anywhere else and the High Court has the same power. It will also feel that it can say whether a particular resolution ought to have been passed yesterday or tomorrow, and therefore ask the Speaker to put it to vote. They cannot do that just as State legislatures or Parliament cannot tell the court that it is a very important case so they must hear it on a particular day.

Response to Arun Jaitley's article in Indian Express on March 15 (Jaitley cites Keshav Singh's case which, according to him, interprets Article 212(1) of the Constitution to mean that an appropriate court of law can call in question proceedings in a legislative chamber if the case is that the said proceedings do not suffer from a mere irregularity of procedure but from an illegality):

Keshav Singh's case has no relevance. It was a case dealing with contempt where the court did a balancing act and came to a wise decision. It does not say that what goes on inside the House can be looked at by the court. What I am talking about has nothing to do with irregularity. Of course, the Governor's action was contrary to constitutional norms. The court could have said it was wrong and struck it down. But for it to say that it is rectifying the position, and that the Speaker will sit at 11 o' clock and will continue sitting the next day, that he will only take up on his agenda a no-confidence motion - all that is not within the court's power. By the same logic, Parliament can also say that the Supreme Court should decide a particular case. Can the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha tell the Chief Justice of the Supreme Court to decide a case on a particular day? No. This is the doctrine of separation of powers in a limited sense. Separation, because we want both institutions to go on. We don't want the State legislatures to be superseded. We do not want courts to be abolished. That is why we have to have a balance.

Other precedents:

Yes, there is a 1999 case (Jagadambika Pal) where Justice M.M. Punchi, in a Bench of two Judges, told the Uttar Pradesh Assembly what to do. But that was a wrong order. All these wrong orders keep getting accumulated. In the present case, the court said that these were interim directions. But there was no final case at all because the whole thing was over and the petitioner said that he was satisfied and withdrew the petition. So it was dismissed as infructuous. So when is the Supreme Court going to pronounce on the reason why it passed the order? It cannot do it in another case. It cannot do it in the Goa case, which it has kept pending. It has to do it in the Jharkhand case because the facts pertain to Jharkhand. So that is the problem.

I blame the government of the day. They had to respect the opinion of the Speaker of the Lok Sabha. He is the highest legislative authority of the country and he is a constitutional lawyer himself. The government could have sought the opinion of the court and asked the Attorney-General to support the order of the court. Let the court then decide the matter. What is the difficulty in going to the court? It is not a slap in the face of the court. You are going back to the same court. The court may have very good reason for the order but it should express it.

Our constitutional system can work only if each organ of state has mutual respect for the other organ as an organ. It is an institutional problem that we have to solve. It is a parliamentary system of democracy. There is a necessity for the Supreme Court to rationalise its action and say why it did it. I would accept that as it is the final interpreter of the Constitution. This is a rare case which the court can retain for itself. That is why Justice Subba Rao said in the Golaknath case that the power to overrule prospectively is a power which is reserved to the Supreme Court itself. If a five- or seven-Judge Bench says this, nobody can say it is not the law. There is a certain confidence that the public has in the decisions of the Supreme Court. To retain that confidence, we must have some rationalisation by the court.

My objection is with the present government. They should have respected the Speaker's opinion. But not respecting it, they have also committed a breach of, what I would call, a constitutional convention. The convention is that if the head of the legislatures in the country, that is, the Speaker, says something, you must not ignore it. This is the crisis. There is no confrontation. The Supreme Court can say if it is wrong or right. It is all part of a process of judicial thinking.

This situation has given rise to the question of whether there is a clear division of powers. Can, in extraordinary circumstances, the courts provide how and which matters the legislature should take up? The courts may very well say: "Yes, before the Assembly assembles, the Chief Minister has to get the confidence of the House." Maybe in this little area they can prescribe the actions of the legislature. Remember that Parliament has never faced a situation like this so far. The Supreme Court can tell the President if it thinks there is no need to answer the reference, as in the Ayodhya case. That there is a confrontation is a misconception. Judges can deal with a reference and put down in a well-reasoned order why they did it or what should be done in cases like this.