If amendments are needed in ways not available in the Constitution, public support should be sought for them so that they are incorporated democratically.
THE INTERIM Order by the Supreme Court on March 9 concerning Jharkhand has created problems that cannot but affect the Constitution, one way or another. If they are to be addressed effectively, the meaning of certain Articles of the Constitution will have to be given some teeth. Otherwise, the mistakes made in that Order will become precedents for repeating them just as that Order itself used similar errors in a similar Order in 1998 regarding the proceedings of the Uttar Pradesh Assembly.
The issue before the Court in both cases was the legality or otherwise of certain actions of the respective Governors in the matter of the formation of new governments. In both cases, the issue was within the constitutional jurisdiction of the Court. But in both cases, the Court went way beyond this jurisdiction and gave detailed procedural and other instructions on how the two State Legislatures must go about their business and confirm compliance. The tale of such misused "precedents" goes beyond these two cases. If the misuse continues, Articles 122 and 212 of the Constitution which, in the interests of separating judicial and legislative functions, bar intervention by courts into the proceedings of Parliament and State Legislatures, respectively, will become dead letters. Or rather, will remain so.
Fearing such a consequence Fali Nariman, writing immediately after the Jharkhand Order, said in a newspaper article that "the delicate balance of powers in our Constitution has been disturbed." He called the Order "a (disturbing) precedent for Courts - in the future - not only the Supreme Court but also any High Court - to direct how proceedings of the Lok Sabha or Rajya Sabha or State Assemblies should or should not be conducted by their Presiding Officers."
Way back in 1973, the Supreme Court judgment in the Keshavananda case started a quiet struggle over the power to amend the Constitution. The contestants were, on the one hand, "the doctrine of basic features" that the Court had woven out of that judgment, and, on the other hand, Article 368 of the Constitution, better known as the amendment Article. The Article clearly empowers Parliament, when meeting "in the exercise of its constituent power," to amend any part of the Constitution so long as it does so in keeping with the conditions laid down in it . "The doctrine," on the other hand, is that the Court can overrule any amendment that in the opinion of the Court affects what the Court may at any time consider a "basic feature" of the Constitution.
In other words, there can be a judicial veto on an action by Parliament even if the action is in accordance with the Constitution. This possibility and the Jharkhand Order are two different issues but are also inter-related because both of them, and the Uttar Pradesh Order, have a bearing on the role of Central and State Legislatures regarding matters the Constitution has entrusted to them while limiting judicial interference in them.
These implications of "the doctrine" did not attract much attention at the time of Keshavananda, perhaps on account of the momentous events that preceded the case (the Bangladesh war) and followed it (the Emergency, and the historic election in 1977 which overthrew the Congress for the first time ever at the national level.) Perhaps also because Parliament was seen in those days as being strong enough to deal with constitutional challenges without poring over individual phrases of the Constitution. On the other hand, during most of the past decade Parliament has been seen as a helpless spectator of what the judiciary may do even to such powers as the Constitution has clearly conferred upon it.
But whatever the reasons for the lack of adequate attention at that time, the Order in the Jharkhand case has served as a wake-up call to all those who have realised that it crept up on them on the shoulders of earlier decisions by courts, which did not receive the critical attention they merited. Typical of the difference now is the reaction of POs, the Presiding Officers of Legislatures, that is the Speakers of the Lok Sabha and State Assemblies, and the chairmen of the Rajya Sabha and Upper Houses of State Legislatures. They meet periodically to consider such matters. They reacted little to the Uttar Pradesh Order of 1998, but this time they met in an emergency session within days and passed a strongly worded resolution expressing "concern" over "such orders being passed by the Courts repeatedly which tend to disturb the delicate balance of power between Judiciary and Legislature and appear to be a transgression into the independence of the Parliamentary System of our Country."
The pace was set in all this by Lok Sabha Speaker Somnath Chatterjee. He reacted immediately and with such force that the Executive thought it wise to reassure the Supreme Court that no confrontation was intended. For his part, Mr. Chatterjee took the opportunity of other public appearances to stress his view that that the Jharkhand Order had created "a disturbing situation" regarding "the relationship between the Legislature and the Judiciary affecting the concept of Separation of Powers, which is a basic feature of the Constitution, as decided by the Supreme Court itself." He also appealed to the Supreme Court to review the Jharkhand and Uttar Pradesh Orders "and set them aside."
Perhaps that is what led to another difference, which is of absorbing interest. The President who was in office at the time of the Uttar Pradesh Order did not do much to undo the deed done by the Governor. On the other hand, the mess made by the Governor of Jharkhand evoked the subtle political skills President A.P.J. Abdul Kalam has displayed from time to time. Of all our Presidents he was the farthest removed from politics at the time he assumed office. And yet he played a quiet but very effective hand in the days before Manmohan Singh became Prime Minister. He did the same thing at the time of the Jharkhand crisis. Without anyone seeing a drop of blood, he pulled out the poisonous thorn the Governor had inserted into the polity.
Presiding officers’ views
It may have come into public view only now but the issue has been a cause of worry for long to POs and others who are closer to the scene. At a seminar just under a year ago, where the theme was "The Supreme Court versus The Constitution," an interesting example was given by a former, and in his own day very active, Speaker of the Lok Sabha, Purno Sangma. Chairing another periodic session of POs, he invited each of them to say what had been his/her single most difficult problem as PO and, as he told the seminar "Believe me, 100 per cent of them said `judicial activism’!"
Most of the seminar’s time was taken up with just the question how constitutional amendments may be made without the judicial or legislative wings trespassing into each other’s domains, and fully in keeping with the text and meaning of all the provisions of the Constitution, and while in fact reinforcing the supremacy and centrality of the Constitution. In other words how the theme may change from "The Supreme Court versus The Constitution" to the Supreme Court and the Constitution in the service of India’s federal democracy.
A number of specific recommendations came up, from participants who are among the best known names in the country’s public life, whether in law, politics, administration or governance in general. Many of them agreed that some changes might be needed in the Constitution in the light of the many changes that have taken place in the life of the country. But most of them also expressed anxiety over the way a few amendments have come about or have been sought to be brought about or blocked. Therefore a dominant view was that deep thought and introspection were needed.
While it is difficult to go into details in a short article, the essential point about most recommendations was that the Constitution has provided ample room and adequate mechanisms for making amendments, and they are better made through these mechanisms than in ways that might not be fully in keeping with either the democratic or the federal aspects of the Constitution. If amendments were needed in ways not available in the Constitution, public support should be sought for them so that they may also be incorporated in the Constitution democratically.
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