by Prannv Dhawan and Bhaskar Kumar Jul 25, 2019
The inevitable fall of the troubled Congress-JD(S) coalition government in Karnataka was precipitated after a long-delayed and controversial trust vote on Tuesday. This occurred after the long-drawn political and legal contest in the state Assembly, the Supreme Court, the media and the public domain in general. Even as the respect for elected representatives and the political class nosedived yet again to a degree where the uncharitable monikers of “commodity” etc. were ascribed to them, the slugfest raised pertinent constitutional questions about the vitality of our federated parliamentary democracy.
This crisis in Karnataka mirrors the 25-year-old constitutional battle which led to the landmark SR Bommai judgment. It was a prolonged battled which involved the Speaker, the governor, the ruling party and the Supreme Court. Bommai was the chief minister of Karnataka, but his government was dismissed by the then governor on account of the withdrawal of support of 19 MLAs. The Supreme Court finally held the dismissal of the government unconstitutional.
HD Kumaraswamy found himself in almost similar circumstances when over 16 MLAs from the ruling alliance offered their resignation to the Speaker. Even as the resigning MLAs maintained that they were doing so out of their free will, the Speaker as well as the leaders of the Congress-JDS combine claimed that these MLAs have been bribed. At this juncture, the significant discretion that the office of the Speaker enjoys under Article 190 of the Constitution comes into question. This provision enables the Speaker to reject the resignation if in her view, it is not “voluntary and genuine.” This provision was drafted in the post-colonial context shortly after Independence, when the constitutional convention of the Speaker acting in good faith was practiced in letter and spirit. The exercise of the wide constitutional powers by the office of the Speaker is supposed to be in line with these “sacred” conventions of political neutrality and fairness. But as has been evidenced in the recent past, Speakers have repeatedly acted according to partisan motives. A case in point is the conduct of the last Lok Sabha Speaker in certifying money bills and refusing to hold votes of confidence.
Karnataka Speaker KR Ramesh Kumar. Twitter @ANI
The “rebel” MLAs of Karnataka argued in the Supreme Court that the Speaker had deliberately delayed the decision on their resignation letters, and therefore violated his duty to act in good faith. The legislators have alleged that the Speaker is acting as per the partisan interests of political expediency and survival of the ruling coalition. Essentially, they alluded that he was waiting until the ruling combine issues a three-line whip to its party members, at which point the anti-defection provision under the Tenth Schedule would kick in. The moment the rebel legislators vote against the whip, their resignations will become infructuous, because disqualification will kick in. The MLAs had requested the court to issue a directive to the Speaker to act in a time-bound manner. This raises significant concerns about the burgeoning judicial supremacy in a parliamentary democracy which is founded on the principle of separation of powers.
The court faces a dilemma as its decision will favour one of the political groups over another. But the intervention of courts in these matters presents a deep threat to separation of powers and also enables the court to become the supreme power arbiter, which is in contravention with the fundamental tenets of a parliamentary democracy as well as our constitutional scheme. Article 212 of the Constitution provides immunity to legislative procedure form judicial review. It also stipulates that no officer or member of the legislature who is vested with powers under the Constitution for regulating procedure be subject to the jurisdiction of any court in respect of the exercise by him of those powers. The Supreme Court has also affirmed the legislature’s autonomy in the 1959 MSM Sharma case, where it held that, “No court can go into those questions which are within the special jurisdiction of the legislature itself which has the power to conduct its own business..Mere non-compliance with rules of procedure cannot be a ground for issuing a writ under Article 32 of the Constitution.”
However, as recently exposited by Justice Chandrachud in his dissenting judgment on the issue of the Speaker’s certification of the Aadhar Bill as a Money Bill, “a consistent thread which emerges” from these three cases (Special Reference No.1 of 1964 case, Ramdas Athawale’s case and Raja Ram Pal’s case) is that “the validity of proceedings in Parliament or a State Legislature can be subject to judicial review on the ground that there is an illegality or a constitutional violation.” He further observed that, “a constitutional trust has been vested in the office of the Speaker of the Lok Sabha. By declaring an ordinary bill to be a Money bill, the speaker limits the role of the Rajya Sabha. This power cannot be unbridled or bereft of judicial scrutiny”
The idea of constitutional trust in the office of the Speaker was also alluded to by the majority judgment in the Aadhaar case, where the Court observed that a judicial review of the Speaker’s decision can be allowed in certain circumstances. This is in line with the jurisprudence emanating from the Kihoto Holohan case, where the court had partially allowed the review of the Speaker’s decision on the ground of illegality and exempted the cases where there were just certain irregularities in the decision of the Speaker. Hence, a slew of cases have established the role of the court as an umpire in the manipulative quests for capturing State power in the legislature which, unfortunately, involve the abuse of powers of the office of Speaker.
In exercise of this role, the court has often gone beyond the constitutional scheme in order to ensure “justice” in the comprehensive sense. In the recent case of the Karnataka MLAs, the court directed the Speaker of the Karnataka Legislative Assembly to decide on the resignations of the rebel Congress and JD(S) MLAs within an “appropriate time frame,” while adding that rebel MLAs cannot be compelled to participate in the proceedings of the House. This order was significant as it allowed the MLAs to refrain from attending House proceeding, allowing them to escape the party whip, which is a ground for disqualification under the Tenth Schedule. The court’s order provided the MLAs with a way around the judgment in the Kihoto Holohan case, which held that by operation of paragraph 2(1)(b) of the Tenth Schedule, voting against the whip or abstaining from voting in cases of confidence motions would lead to disqualification. As is clear from the Article 190(3)(b) of the Constitution, the acceptance of resignation by the Speaker is not a matter of right of a legislator. It is subject to the Speaker’s discretionary satisfaction about the voluntariness or authenticity of the resignation.
In context of the present case of judicial review, it is clear that the court’s exercise of its role has been in dissonance with the constitutional scheme. However, the court’s approach is a consequence of the contemporary political situation wherein the constitutional offices have in fact violated sacred conventions of fairness.
Thus, the autonomy and dignity of the constitutional office of the Speaker has been subject to judicial review, as the degree of discretion envisioned under the Constitution has become subject to political expediencies and choices of the ruling political formation and, by extension, the executive. This has had a deleterious effect on the sacrosanct separation of powers which is the hallmark of a parliamentary democracy. Hence, political conventions have outlived their utility as they have been practiced mostly in their breach. This has elevated the judiciary to the pedestal of being an arbiter of power, hence causing institutional imbalance. Thus, there is an urgent need to reorient checks and balances between institutions and to provide for clear legislative and constitutional safeguards against abuse of discretionary powers. The principle of constitutional trust requires meaningful and robust enunciation in our constitutional framework so that the carte blanche of constitutional power is effectively regulated.
The article appeared in the Firstpost on 25 July 2019