A wrong precedent

Most people would not know that someone called Jaidev Singh recently did something that has never been done before in the history of democratic India. Jaidev Singh is a bureaucrat who is currently principal secretary, legislative and parliamentary affairs, government of Uttarakhand. On May 10, he not only entered the chamber of the Uttarakhand Vidhan Sabha, where bureaucrats are not allowed entry, but sat on the sacrosanct chair of the Speaker and conducted the proceedings of the Assembly. In achieving this remarkable feat he has, in my opinion, earned a place for himself in the Guinness Book of Records. He has also ensured that his name figures in any history written henceforth of the legislative functioning of the world’s largest democracy.

Recent political developments in Uttarakhand hardly need recounting. Of relevance is the fact that nine members of the ruling Congress Party in the state were sufficiently seduced by the charm of the BJP to become rebels. When the state budget was to be passed on March 18, these rebels, along with BJP legislators, sought to bring down the government by asking for a division of votes. The Speaker decided to proceed otherwise and declared the budget to have been passed by voice vote. The BJP and its nine newly acquired accessories protested to governor K.K. Paul that the Harish Rawat government has lost its majority. The governor directed the Rawat government to prove its majority on the floor of the House on March 28. Up till this point the script is clear, and Mr Singh would still probably be clueless about his remarkable tryst with destiny a few weeks later.

As expected, the Speaker expelled the nine rebel MLAs under the anti-defection provisions of the Tenth Schedule of the Constitution. To my mind he did the right thing. The anti-defection law was brought in precisely to prevent situations like this, where a handful of MLAs decide to suddenly break away from a party to join the opposite camp, thereby toppling a legitimately elected government. The decision to defect has hardly anything to do with “conscience”. It is mostly the consequence of cynically dangled allurements and unseemly and vulgar horse-trading.

The next series of events nudged Mr Singh’s moment of history closer. With its nine devoted followers having been expelled by the Speaker, the task for the BJP of dislodging a democratically elected government through the back door became more difficult. Hence, a day before the scheduled floor test in the House, the BJP government in New Delhi decided to impose President’s Rule in the state. Now followed a series of appeals to the judiciary that made supposedly responsible legislators look like errant schoolboys.

First, Harish Rawat appealed to the Uttarakhand high court against the decision to impose President’s Rule. The court fixed March 31 as the new date for a floor test, but also said that the nine expelled MLAs could participate. Against this decision, a division bench of the high court stayed the floor test and also stayed further hearings in this matter.

Inevitably, the Supreme Court intervened on April 21 and directed the Rawat government to prove its majority on the floor of the House. Against this, the Central government appealed afresh to the Supreme Court, and the SC directed that President’s Rule be restored in the state. Finally, the SC fixed May 10, 2016 for the floor test. It directed that for this to be held, President’s Rule would be lifted for two hours! The test would be conducted, our highest court pronounced, but not by the Speaker. For the first time ever, a bureaucrat would sit in the Speaker’s august chair to decide who had the majority. Mr Singh’s historic moment had come.

What is the takeaway from this sequence of events? Our Constitution defined a structured balance between the legislature, the judiciary and the executive. In working out this separation of powers, the assumption was that each of the three wings would effectively perform their respective roles. But our Constitution makers could never have foreseen what happened in Uttarakhand. The antics of our legislators, driven by their political masters, literally invited unprecedented judicial intervention. The judiciary, faced with a legislative crisis that refused to resolve itself, converted, in my humble opinion, that intervention to overreach. Article 212 of the Constitution explicitly rules out the jurisdiction of any court on how legislatures conduct their business. In effect, this means that the decision of the Speaker in the House in accordance with the powers conferred on him/her is explicitly beyond the jurisdiction of courts. But in this case the courts did sit in judgment over the Speaker’s actions taken under his legitimate powers within the House.

I believe other options were there. If the court wanted to ensure fair voting in the House, it could ask for the entire proceedings to be video-recorded or telecast live. But to instruct the Speaker to vacate his chair for the secretary who reports to him is clearly unprecedented, and I am afraid about what this portends for the future. The SC would rightly never cede to any legislative authority its judicial powers as stated in the Constitution. Would it allow the court to be presided over by an MP or a bureaucrat, and then allow the judgment to be sent in a sealed envelope to Parliament to be opened? With great respect, how then could it expect the legislature to devalue its presiding officer and allow a bureaucrat to conduct the proceedings of the House?

In the heat and dust of rivalry, political parties forget that what they do in response to the imperatives of the immediate becomes a precedent written in stone for the future. Mr Singh had his 24 hours of fame. My worry is that those 24 hours may continue to cast a dark shadow over the relations between the legislature and the judiciary for years to come.