Why the Presidential Reference Ruling Marks a Bad Day For the Republic
November 20 has turned out to be a bad day for the Republic. Not because a regional leader has manoeuvred and manipulated the electoral system to take oath as chief minister of Bihar for the tenth time, but because the Supreme Court of India appears to have soaked the significance of the political momentum behind the Patna event and has ended up lending its imprimatur to an unhealthy imbalance in our federal equation.
A constitution bench has reversed the court’s own, a two-judge bench, judgment of April 11, in the State of Tamil Nadu vs. Governor of Tamil Nadu, whereby Justice J.B. Pardiwala and Justice R. Mahadevan had ruled that the governor and the president could not indefinitely sit on a Bill passed by a state legislature/parliament.
The matter had come before the court because of a seemingly intractable clash between the Union government-appointed governor and the democratically elected government in Tamil Nadu. This clash was a politically inspired stand-off. Since 2014, the Union government has steadily been assuming the role of a head-master, treating the states, particularly the opposition-ruled states, as rowdy children in need of a good spanking , rather than as constitutionally-constituted bodies.
The Bharatiya Janata Party (BJP)-led Union government has insisted on a presidential reference, precisely because the Pardiwala-Mahadevan ruling had loosened up a key nut in the ruling party’s control and command mechanism. The Centre had encouraged and instigated Raj Bhavans to become active source of controversy and contrariness against non-BJP state governments. And, the governors vigorously exploited any ambiguity. The so-called pocket veto became the norm of the day in non-BJP states.
The constitutional bench’s central argument in over-ruling the April 11 verdict flows from a very strict textual reading. The bench has sought to disabuse the idea that the apex court was itching to take on an activist role, and that it was not prepared to try to correct the political excesses of the legislature or executive. The very fact of the unanimous judgment seems to suggest that the court will not like to get involved in the politicians’ quarrels.
There can be no quarrel with this self-restraint; but, in the process the court appears to have abandoned its institutional obligation to play an active role in ensuring that a spirit of constitutional equilibrium informs the Republic and its polity.
This new approach carries with it a faint echo of textual purity that found expression in the majority opinion in the ADM Jabalpur case. The polity has evolved significantly since then and the judicial fraternity has moved beyond that unfortunate Emergency-era ruling. Indeed, world over the judiciary is still thought as an effective antidote to executive overlordship, even when conforming to the letter of the constitution of the land.
Even in our neighbouring Pakistan, a judge of the Supreme Court, Justice Syed Mansoor Ali Shah, in his letter of resignation from the court, observed:
"Nations that prosper are those that place the rule of law at the heart of their governance and preserve judicial independence as a sacred trust. When justice is shackled, nations do not merely falter – they lose their moral compass. History bears witness: when courts fall silent, societies descend into darkness.”
Justice Shah found himself unable to abide by the majority of the court that had opted to acquiesce in the field marshal Munir Khan-directed constitutional amendments.
In its presidential reference opinion the court has now re-activated a constitutional trick that the Union government finessed over the years, converting Raj Bhavans into rival centers of power, even sites of intrigues, in the non-BJP-ruled states. Though the constitutional bench has categorically stated that the governors cannot act as super chief ministers and there cannot be two executives within a state, the ruling inspires no confidence that a maliciously determined political executive at the Centre can be made to abide by the “spirit of the constitution.” Who will decide when a hostile governor was withholding assent “inordinately”? At what time will a governor’s action constitute “unexplained delay” in giving assent?
When there is bad political faith, the best of the constitutional institutions end up lacking the resilience to protect that Jeffersonian sense of equipoise, without which there is no democratic vitality. Donald Trump’s America offers a painful lesson in how a wilful executive can impose its maximalist definition of presidential powers – with or without the American judiciary’s silent consent.
The Indian constitution is embodiment of the original political compact, based on a number of commitments, concessions, and compromises; it is an efficacious instrument, forged by wise men and women, to impose a fair and firm order in a land of diversities and differences. The constitution obliges all stake-holders to play by the rules of the game.
The Indian polity is at its creative best when it is able to achieve a semblance of institutional equilibrium – a healthy balance between the state and the citizens; a reasonable and fair balance between the majority and the minorities; a just playing space for private industry, without being unmindful of public good; and, a robust partnership between the Union and the states. A vibrant federalism is sine qua non for a functioning democracy.
Over the last seven decades we have repeatedly been made to learn and re-learn a simple lesson in statecraft: institutional lopsidedness produces only bad choices and costly dividends. In the absence of wise political leadership, it falls to the judiciary to minimise the imbalances. On that count, the Presidential Reference ruling fails to inspire confidence.
Harish Khare was editor of The Tribune.
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