#dnaEdit: The legal battle

The division bench comprising Chief Justice KM Joseph and Justice VK Bisht of Uttarakhand High Court has asserted the prerogative of judicial review implied in the Constitution by overturning the central government’s decision to impose President’s Rule in the politically-riven state on Thursday, and ordered that the floor test to decide whether the ruling Congress enjoyed majority in the legislature should be held on April 29. The court had disallowed the Centre’s request to grant a stay on its order, and suggested that it would not stay its own order and asked the central government to approach the Supreme Court. The BJP-led NDA government is sure to approach the Supreme Court, challenging the high court’s decision in the matter.

The case is riveting in terms of the political power struggle at one level, and of constitutional propriety on the other. In terms of the political tussle, it was pretty clear that Chief Minister Harish Rawat had lost majority because of the defection of nine Congress legislators led by former Chief Minister Vijay Bahuguna. But in a knee-jerk response, the central government chose to invoke Article 356 of the Constitution and dismiss the Rawat government a day before the floor test. There was no doubt that the central government had acted in a partisan manner because with the disqualification of the rebels, the Congress was set to win the trust vote. Imposition of the President’s Rule was a desperate political act. The Uttarakhand High Court has merely pointed out that the central government’s order does not withstand judicial scrutiny. 

It has also to be pointed out that the Speaker’s decision to disqualify the rebels was partisan. It seems that the validity of the bona fide of the Speaker’s decision could not be considered because it was not part of the petition that came up before the bench. If the disqualified members decide to challenge the Speaker’s ruling, then the court will have to pronounce in the matter. 

The high court’s verdict while it seems to make judicial sense in the overturning of President’s Rule, raises questions about the judicial competence in setting the date for the floor test in the assembly. That power vests with the governor. It is for him to set the date for the trust vote in order to end political uncertainty. The court cannot assume that executive prerogative. This is not the first time that the courts have tried to give directions to the state legislature. The Supreme Court had done it in the case of the Jharkhand legislature in 2010. But it does raise the important constitutional question as to what extent the judiciary can give directions to a legislature, though courts do enjoy the right to quash the laws passed by a state assembly or by parliament.

While it is imperative to pay close attention to constitutional niceties, which are important in themselves and the temptation to dismiss them out of hand as mere quibbles should be resisted, there is no way of averting one’s gaze from the political problem plaguing the state. Both the major parties — the Congress and the BJP — face this danger of instability because of inner party squabbles and the willingness of the disgruntled members to bring down government for the sake of personal pique makes it a treacherous terrain of shifting party loyalties. There is a need for politicians and parties to stay true to the course even if it means sitting on the opposition benches for five years.