Citing abuses of President’s Rule, orchestrated defections in legislative assemblies, and arbitrary changes in election rules, Rajeev Dhavan, famous Supreme Court advocate, asks “Can India’s constitutional democracy survive this onslaught?”

His following article was first published on Daily O…

How Governments Manipulate India’s Constitution

By Rajeev Dhavan

A few days ago, Congress lawyer-politician Kapil Sibal approached the Supreme Court pleading that the NOTA option be removed from the Rajya Sabha election in Gujarat. On August 3, the Supreme Court called this effort opportunistic. “When it suited you, you did not come. You came here on the eve of elections,” it said.

Manipulation

The Gujarat Assembly is in turmoil due to defections after six Congress MLAs switched to the BJP camp amidst high drama. The BJP regime has become a symbol for manipulation and intrigue. With President’s rule in Arunachal Pradesh and Uttarakhand (before 2017 Uttarakhand Assembly elections) firmly in mind, along with post-election manoeuvres in Manipur and Goa, the BJP has grown in public imagination as one that will manipulate the Constitution itself to comprehensibly govern India.

In many ways, democracy lies in the fear of all this which is capable of manipulating democratic processes to produce undemocratic results. With Kerala burning over the death of an RSS worker, there is now a demand for President’s Rule in the state, which was infamously a victim of such in 1959 and many times thereafter.

Can India’s constitutional democracy survive this onslaught? Curiously, this onslaught has come from both sides in India’s independent history.

The Indira Gandhi years (1967-77) were massive examples of such manipulation. Now the BJP era from 2014 represents the second high point of manipulated democracy.

Defections are back. President’s Rule is back. Parliament is threatened by majoritarianism. This essay is about the internal manipulation of the Parliament itself.

Recently, the Aadhaar Act, 2016 was passed off as a Money Bill to disempower the Rajya Sabha to make amendments. The example is a telling one as indeed, the issue is of a Money Bill. Why was this done? All Bills require the attention of both Houses. If they disagree, unlike England, a joint session would have to be called (Article 108). Jaitley has often threatened joint sessions, but such thoughts have suffered forbearance.

A joint session would not have been an exercise in constitutionality or to restore matters constitutionally, but using numbers for the Lok Sabha to overwhelm the Rajya Sabha. Such a manipulation should be a last resort. For the Aadhaar Bill, the way out appeared to be to call it a Money Bill, which requires a special procedure (as mentioned in Article 110).

Since the Aadhaar Act contained incidental expenditure in the Consolidated Fund, it was stated to be a Money Bill. Once that is done, the Rajya Sabha can discuss it but not pass amendments binding on the Lok Sabha. That is why this manoeuvre was called the subversion of democracy since it choked up discussion on Aadhaar which does more than using unique identification for service delivery.

Face-off

This created an impasse. Was the Lok Sabha Speaker’s certification that this was a Money Bill final? When the matter went to the Supreme Court, a telling exchange took place between the counsel and the court, with Chief Justice JS Khehar confidently declaring, “If the Speaker says green is blue, we will tell blue is blue.”

Khehar is fond of making off-the-cuff remarks for drama, but does this mean that the Supreme Court is willing to inquire into the speaker’s certification which is part of the parliamentary process into which the Supreme Court does not dare to interfere? If it does, a quarrel of gigantic proportions will be set up between the legislature and the judiciary.

Of course, there is a view that the Supreme Court can, and should step in, to review the speaker’s decision. But this is a big step. It is all very well to say that in defection matters, the speaker’s decision will not be final as in the Kihoto case (1992). But, we can’t have the Supreme Court regulating parliamentary procedures in every finite way.

In such a clash of arms, both institutions will suffer. Indubitably, the Supreme Court has very limited, if any, powers of intervention, while parliamentary proceedings are actually taking place unless Parliament transgresses fundamental rights (as in the UP legislature case (1964) when the Assembly threatened to send High Court judges to jail. Here, as in Cash for-questions case (2007), the Supreme Court will define the privileges of the legislature so that the latter does not become a law unto itself by arrogating unlimited powers to itself. But can the Supreme Court go further?

SC intervention

Take the Money Bill example. While the Bill is going through Parliament (or Assembly), the court cannot interfere. But, after it becomes an Act, can the Supreme Court say that the “procedure” followed was wrong because the Bill could not have been certified as a Money Bill by the Speaker? In the UP Lokayukta case (2014) where I appeared, the court took the traditional view that the speaker’s view was final.

This gets us back to our original dilemma. If the Parliament blatantly cheats on itself by using ramrod procedures to stifle discussion, does it become a law unto itself? The present answer seems “yes it can”. That is a blow to democratic constitutionalism.

We are in danger of the Constitution’s internal procedures being grossly abused, and nothing can be done about it. The people seem helpless. Our Constitution rests on two sets of principles: democratic and constitutional. Democracy cannot override constitutional balances. Nor can these “balances” throttle democratic discourse. Today, the BJP is threatening the very fabric of constitutional governance.

 

This article was first published on Daily O on 7 August 2017.

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