Arunachal: As Supreme Court restores balance

When later day historians will sit down to write their analytical accounts of democracy in India in the 21st century, they are bound to treat judges, students, teachers as heroes in the saga for enforcing the rule of law and restoring the dignity of the institutions. Politicians, irrespective of their high office and power, and media professionals, with their reach and influence, would figure somewhere in the bottom rungs of a pecking order.

There is a long list of incidents to substantiate this thesis, and given the tendency in the public space to argue all cases involving a play of morality and ethics on the strength of whataboutery with the Congress and the BJP representing the two contending sides, the grim truth is that there are no winners among politicians and media persons. In sum, they are all losers. The latest episode in this sequence is the judgement of the Supreme Court’s constitution bench that has annulled all the actions of the Arunachal Pradesh Governor J P Rajkhowa that led to the imposition of the president’s rule in the state. This decision by itself was not unprecedented. There have been instances in the past wherein the apex court has ruled that the imposition of the president’s rule was unconstitutional. But in both these cases, the dismissed government could not be brought back to life. This time the court also revived the Nabam Tuki led Congress government.

THE latest episode in this sequence is the judgement of the Supreme Court’s constitution bench that has annulled all the actions of the Arunachal Pradesh Governor J P Rajkhowa that led to the imposition of the president’s rule in the state.

This has been a signal service to the cause of democracy and the rule of law. The political colour of the central government in this case is immaterial. The judgement shall have universal implications cutting across party lines as the court has asserted: “it’s not ‘within governor’s realm to embroil himself in any political thicket… The governor must keep clear of any…horse trading, and even unsavoury political manipulations, irrespective of the degree of their ethical repulsiveness. Who should or shouldn’t be leader of a party is a political question to be…resolved by the party itself. The governor cannot make such issues a matter of his concern.” The constitution bench also ruled that the governor has to function at the ‘aid and advice of the council of ministers’ and does not have any discretionary power to summon the legislative assembly. It has reasoned that if the governor summons the assembly on his own discretion, then it would have business, and such a session would not serve any purpose.

With this decision of the Supreme Court, the tendency to use the governor as a political agent of the government at the centre (that is the governor’s appointing authority) would be curbed as all such decisions taken by the governor would come under the court’s scanner. But as well know the presence of a law is never a deterrent enough for those who are convinced of the power of their own invincibility.

It is impossible to disassociate the politics propelling the central government’s decision to impose president’s rule in the states of Arunachal Pradesh and Uttarakhand. It would be a rare chief minister who does not face dissidence within his own party, and like all chief ministers, Nabam Tuki of Arunachal Pradesh and Harish Rawat of Uttarakhand also encountered these problems. It is to insulate chief ministers from such problems and prevent the resultant instability that the anti defection law had been brought on the statute book at the initiative of the then Prime Minister Rajiv Gandhi in the mid-80s. Before that we had been witnessing the ‘Aaya Ram, Gaya Ram’ syndrome wherein members would switch sides many times over on the floor of the house on the same day.

In both Arunachal and Uttarkhand the dissident MLAs from the Congress would not have been successful without the active support and blessings of the BJP leadership. For the power packed saffron leadership, the anti-defection law was not even relevant. The formula worked out by the BJP strategists appeared neat for a bloodless coup. Lure the dissident MLAs, go to town with claims that the chief minister has lost majority, call it a constitutional crisis, with an obliging central government and Rashtrapati Bhawan dismiss the state government, and then with the help of Raj Bhawan install your own puppet government. What is more, blame the Congress for its failure to keep its flock together. If at any time, the cliché killing two birds with one stone had to be put in practice, here was the Shah-Modi combination achieving manifold success. The strategy appeared to have succeeded remarkably when Congress dissident Kalikho Pul was installed as the chief minister in Arunachal Pradesh. The courts did intervene, but did not stop the process. Naturally, this emboldened the Shah of the Congress-Mukt Bharat Abhiyan, and the same strategy was adopted for Uttarakhand. The self- belief in success must have been underwritten by the experience that our courts are slow in deciding matters, and by the time the verdicts come, it is always too later for any meaningful redressal.

But the first surprising blow came in the Uttarakhand case where the Supreme Court ordered a floor test after disqualifying the dissident MLAs. It is here that history was being written with the judges as the heroes. In another context, the erudite lawyer Arun Jaitley has called it the ‘tyranny of the unelected’ and openly resented the judicial verdict on the National Judicial Appointments Commission, but the fact remains that the judges have acted within the ambit of the constitutional scheme of things. In all cases, they have restored the balance, which is the core of the system of checks and balances in our constitution. We cannot overlook the fact that time and again Prime Minister Narendra Modi has said that India First is the religion of his government and the constitution is ‘its holy book.’ So, it is time to wonder as to how can it be the tyranny of unelected when the judges are merely discharging their constitutional function as the constitution does not envisage that the judges should be elected by the people. But that also makes them better heroes for standing up to those who have the power of the people with them.

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