Friday, July 15, 2016

The Court is in the House

In light of the recent verdict of the Supreme Court on the controversial dismissal of the Nabam Tuki government in Arunachal Pradesh by the state's Governor, it is important to think above the silly anti-BJP rhetoric of the Opposition and consider the constitutional crisis that we are in: a crisis in which the Constitution is being re-written, again, by the Supreme Court. For, together with Uttarakhand, we have two state governments in India that are in a minority in their respective Houses, and are not backed by any external political support, but by a court-mandated re-reading of the Constitution.

Consider the judgment of the Court in striking down the actions of the Governor. In interpreting the controversial Article 356 of the Constitution, the Court rightly said that the Governor should not be involved in the political shenanigans that inevitably happen in a divided and sinking party like the Congress. Remember, the original crisis was the rebellion of a large number of Congress MLAs against Tuki, after they were ignored by the High Command in Delhi. However, the Court added a rider: it pointed out that, even if there is a danger of gross impropriety, including horse trading, the Governor should not act, effectively turning the institution of the Governor into a post office. By all means, this was not the original purpose of Article 356, which was to protect the Constitutional order in the states of the Union. And while a majority can only be established on the floor of the House, a majority that is obtained by blatantly corrupt means, the cost of which will ultimately be borne by people of the state, is a questionable majority at best.

A larger question, of course, is whether we should even have Article 356 altogether. It has been greatly abused, with Indira Gandhi using it openly for partisan gains. And the Central Government itself is not immune to the same thing as the states, as was clearly evident in the Cash for Votes scam during the debate on the Indo-US Nuclear Agreement in the Lok Sabha. Article 356 appears to be a poor compromise between Nehru's centrism and Patel's federalism, and its time may be up. However, a greater crisis is the erosion of the original intent of the Constitution at the hands of an activist Supreme Court that has declared that it is above any and all elected representatives of the people.

In the Uttarakhand verdict, the Court told both the Speaker and the Governor how to do their jobs. In Arunachal again, the Court told the Governor how to do their job. It seems nobody is supposed to be an activist except the Court itself, that has inserted itself into a myriad of things that it has absolutely no business being in, by conveniently expanding its view of the fundamental rights. What we get here is the Court dictating a parallel budget, mandating new funds and cesses, a parallel environmental policy, and now, a parallel minority government in the states. As Finance Minister Arun Jaitley warned in Parliament, brick by brick, the edifice of the Indian Constitution is being broken down by an activist Supreme Court. This is certainly a serious issue with dire consequences for the future.

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