Uttarakhand Row: The Sordid Tale of a Govt’s ‘Constitutional Sin’

The judiciary succeeded in undoing the ‘constitutional sin’, committed by the Centre in Uttarakhand.

Much of the problems in Arunachal Pradesh and in Uttarakhand are related to the arrogance of a government at the Centre, which believed that having the numbers enables it to topple elected governments in States.

Apart from going against the very basic feature of federalism, this strategy is based on one basic trick, get members of the ruling party to defect, by guile, by bribe, by lure of ministerial berth. Once that is done, demand a floor test and become the ruling party.

Centre’s Strategy

So how did this strategy adopted by the ruling party at the Centre backfire? It is their desperation to get hold of the government which led them to approach the President to impose President’s Rule, letting the game slip. This was coupled with the proroguing of the Parliament with the stated object of issuing an ordinance to pass an appropriation bill. This too was a first for any ruling party.

Earlier last year, the ruling party attempted something similar by waiting for the Parliament to be prorogued and then issued an Ordinance to amend the Land Acquisition Act. The Ordinance was reissued three times without ever becoming a law. This was done to avoid sending the Bill to the Rajya Sabha. But in the case of Uttarakhand they went one step further – the Centre said that the Parliament was being prorogued to enable the issuance of the Ordinance.

Predictably, both President’s Rule and the Ordinance were challenged, and we all know that the High Court has held that the imposition of President’s Rule was unconstitutional, the effect of this was that the elected government was restored. The Supreme Court has stayed the judgement but on the specific assurance that the President’s Rule will not be lifted.

Did the Centre Jump the Gun?

• The Uttarakhand crisis resulted from the Centre’s now habitual desperation to stake control, in this case by imposing President’s Rule.
  
• Uttarakhand High Court noted that the NDA government has committed a “constitutional sin” , highlighting the abuse of constitutional powers.
  
• In their desire to topple any non-congress government, the Centre is willing to enable the defection of MLAs.
  
• Our courts have proved again that they are creative in their interpretation of the Constitution.
  
• The judiciary has fulfilled its institutional role as keepers of constitutional morality – just what the Uttarakhand High Court has done.

Abuse of Constitutional Powers

The fact remains that the High Court has held that the NDA government has committed a “constitutional sin”, an interesting concept, which for the first time draws attention to the immorality of the abuse of constitutional powers.

The key to understanding the crisis is the chain of events on 18 March, and the strategy of the BJP in the opposition, of getting nine people from the Congress government to defect and vote with the BJP on the appropriation bill. That strategy failed since those nine were clearly liable to be disqualified and hence, they could not have voted with the BJP. They were in fact disqualified and they failed to get a stay on their disqualification. In Arunachal, on the other hand, the disqualified MLAs managed to get a stay on their disqualification.

The sordid tale brings us back to the issue of how majoritarian governments at the centre work. In their desire to topple any non-congress government, they are willing to enable the defection of MLAs and then claim that the Government has lost its majority and must quit. The legal strategy adopted by the Congress team did not allow this to happen, having learnt from the Arunachal experience.

It is a sorry commentary on the manipulation of the Constitution by those charged with the duty to work under the constitutional mandate and not over and above it. This is what the High Court describes as a “constitutional sin”, that is an abuse of power, a pretense of working in tandem with the Constitution while making cynical use of its provisions, such as imposing President’s rule and proroguing the House to pass an Ordinance.

We have never seen a government at the Centre proclaim with pride that the Parliament is prorogued to enable the passing of an ordinance. The power to pass an ordinance is given under the Constitution to meet a genuine emergency when the Parliament is usually not in session, not when the House is prorogued to pass an Ordinance.

Institutional Role of the Judiciary

This is also the first time in legal history when President’s rule has been revoked, enabling an ousted Chief Minister to be back in office. All previous declarations of invalidity have come after the government’s term has in any event concluded.

What is interesting for me is that our judges have been able to meet the challenges of present times. They have also ensured that law evolves to meet these challenges – the hallmark of great judgements. A judge that tends to tread the beaten path neither displays creativity, nor constitutional intelligence. Many can follow precedent, but few can create precedents to meet the challenge of our times.

Our courts have proved again that they are creative in their interpretation of the Constitution, as they have done in the past. What is also very critical to understand is that the judiciary, as an institution, must perform its institutional role of deciding the constitutionality of a government action, and not renege on the role-giving primacy to the Government of the day. They are keepers of constitutional morality and must be aware of that role – that is what the High Court of Uttarakhand has done. However, we await the outcome of the proceedings in the Supreme Court to see how they tackle present remonstrances.

(The writer is a former Additional Solicitor General of India. She can be reached at @IJaising)

Also read:

How Delhi Shot Itself in the Foot in Arunachal Pradesh