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Finance Minister Arun Jaitley, the ruling party’s most prominent national face after Prime Minister Narendra Modi and President Amit Shah, and arguably also its most polished and articulate parliamentarian, is disappointed at the way the political scenario has been unraveling in the two years since his party has been in power. This was strikingly evident as the Uttarakhand imbroglio backfired on the BJP last week. Jaitley made an impassioned plea in parliament urging members to ensure that there is no more judicial incursion into the territory reserved for the legislature under the separation of powers doctrine inherent in the constitution.

Vindicated! Uttarakhand CM Harish Rawat speaks to the press after winning the assembly floor test on May 11
Vindicated! Uttarakhand CM Harish Rawat speaks to the press after winning the assembly floor test on May 11

He was referring clearly to a unique event in the history of independent India: a floor test conducted in a state legislative assembly to prove the government’s majority under the direct supervision of the Supreme Court. In other words, the Supreme Court, in effect, was directly monitoring a legislative process usually consigned to the Speaker or the governor.

In all my years of analyzing and reporting on governance, I have never seen a sharper judicial slap delivered to the face of a ruling party at the center. It shamed even the irrepressible Subramanian Swamy. The Supreme Court not only overturned President’s rule in Uttarakhand imposed by the Modi government but also became a participant in managing the final outcome of that controversial decision which had rattled the Indian state and sent constitutional experts and legal minds into a tizzy. Is Jaitley right in pointing to the dangers of the usurpation of governance—including the legislative process—by the judiciary? According to a strict construction of the constitution, he is.

Judicial overkill and gratuitous activism does pose a danger to the founding principles of the republic. There would be political mayhem if the functioning of legislatures were to be stymied by the whimsical meddling of judges. The very concept of rule of law would suffer egregious harm if judges become rulers.

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But what if the executive—which is really indistinguishable from the legislature in the Indian system’s Westminster style parliamentary democracy—usurps power not given to it or muscles into fields not within its purview, or refuses to take purposeful action in the public interest? What then? Does the republic simply wait and watch as governance degenerates into executive dictatorship and mismanagement or should there be a corrective mechanism?

Mercifully, there is. It is the judiciary and, above all, the Supreme Court which is duty bound to protect the constitution, safeguard fundamental rights and act a brake on the arbitrary exercise of executive privilege.
Ideally, this should happen in the rarest of rare occasions. But when the rare turns into the frequent in a functioning democracy, it is usually because a judicial shock-and-awe action has become necessary to restore balance into the system.

In other countries such as the US, far-reaching social and economic reform such as racial desegregation, equality in education, equal employment opportunities, anti-trust issues, the right to freedom of speech, abortion, gay rights and privacy issues have been enforced and implemented through judicial activism in the form of court orders and “declaratory injunctions” when the executive and legislature have been foiled by political considerations.

It is now becoming apparent that judicial activism—even in semi-“failed states” like Pakistan—increases in direct proportion to the degree of misgovernance or lack of governance. India has seen its share of this phenomenon. The judiciary has taken the lead in tackling environmental issues such as compulsory CNG buses and mining in the Aravalis and the Ganga clean-up; corruption such as the 2G spectrum, and BCCI, and directly monitoring CBI probes; black money eradication; education, such as suspending the Medical Council of India. And most recently… the supervision of the Uttarakhand floor test in the state assembly which has caused Jaitley so much legislative angst.

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Surely, the Finance Minister doth protest too much. What else did he expect? The old adage that those who do not learn from history are doomed to repeat it could not have been truer than in this case. The misuse of Article 356 of the constitution by the center to eject popularly elected governments in the states has been endemic. The worst abuser—starting with Nehru’s dismissal of Namboodiripad’s Communist government in Kerala in 1958—was the Congress.

Historically, the abuse of this constitutional provision (which originated from a 1935 British law), has been used to destabilize smaller political parties which play an important role in reinforcing the idea of cooperative federalism reflecting this nation’s huge social and linguistic diversities. It is only natural for voters entering and participating in the competitive political system to identify with familiar groups. They serve as ladders for social upward mobility. Congress’s Big Brother attitude towards regional groupings and parties earned it their hostility and suspicion. And now the BJP has stepped into the Congress’ shoes.

It came as no surprise, then, that regional parties starting with allies like the Shiv Sena and the Akali Dal publicly criticized the ruling BJP after the Arunachal coup. It sent warning shivers down the political spines of states like Manipur, Himachal Pradesh and Uttaranchal.

No Longer a Divided House: The Uttarakhand legislative assembly recently witnessed a historical moment
No Longer a Divided House: The Uttarakhand legislative assembly recently witnessed a historical moment

Given the history of Article 356 and the existence of the anti-defection law, the BJP leadership would have been wise not to carry the toppling strategy from Arunachal to Uttarakhand. Where once it dominated the social media space, the BJP was losing out to its critics and concerns mounted over the legal see-saw in Uttarakhand after declaration of President’s Rule a day before the floor test.

The floor test is the gold standard for gubernatorial intervention. The importance of this to establish the validity and legitimacy of a government was spelled out by a constitution bench in the Bommai case and in Rajasthan vs Union Of India. Of course, the judiciary would have to step in! Judicial review of such cases was clearly upheld in the Bommai judgment. As The Indian Express rightly said, Jaitley and other party leaders failed to convince the political class, ordinary citizens, and the courts that there was a constitutional breakdown in Uttarakhand (the only valid reason for imposition of President’s Rule).

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In other words, Jaitley’s concern that the courts are stepping into the legislative branch’s shoes—at least in this case where history should have been a teacher—does not carry sufficient weight. It seems, in the public perception, that the government itself ceded this territory to the courts because of high-handed action.

And the courts came marching in, step by step, undoing the damage. Finally, the direct judicial supervision of the floor test was the sharpest message delivered in recent years by the apex court that it did not have faith in the central government’s or its state agents’ ability to conduct a fair and impartial voting exercise within the legislative chamber.

Any government, no matter how large its majority in the Lok Sabha would be well to learn from history. And some of that history is in writing—in the form of analyses and recommendations made by the Venkatachaliah Commission set up by the Vajpayee’s NDA government in 2000 “to review the working of the Constitution”. Relevant portions of this seminal work—based partly on the earlier Sarkaria Commission which reviewed center-state relations 1983-1988—are reproduced in the box that appears after this editorial.

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