An avoidable political-judicial tussle in Uttarakhand

The crisis in Uttarakhand, which has arisen as a result of the dismissal of the democratically-elected government, led by Harish Rawat, has many points of significance, none of which is healthy for India’s body politic. What was a political crisis has turned into a legal and a constitutional anomaly, in the sense that the judiciary has had to step into the domain of the legislature, something that is not in consonance with the constitutional tenet of the separation of powers.

The Centre had precipitated the problem by dismissing the state government a day before it was to prove it had the support of the assembly. In the Centre’s view the constitutional machinery had broken down after nine Congress MLAs had withdrawn support to the government. And it had also cited the governor’s report, which had talked of horse-trading being caught on a spy camera. None of these is very convincing and it was the governor himself who had ordered the floor test.

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When broken into some of its constituent elements, the whole episode throws up contradictory pictures. The fact that the Uttarakhand high court has not stayed the presidential order of dismissal and yet ordered a floor test in the assembly (now stayed by a division bench) means a dismissed chief minister has been asked to prove his majority. This is no doubt bewildering. If in a subsequent judicial decree the president’s action is called into question, it will be another blow to the constitutional arrangement because any action taken by the president in his official capacity should be outside judicial scrutiny (the same applies in the case of the governor).

Second, without invalidating the Speaker’s order of disqualifying nine rebel MLAs, the court has allowed them to participate in the trial of strength. In this situation the anti-defection law very clearly works against the rebel MLAs because together they do not total two-thirds of the Congress legislature party. If they vote against the diktat of the party high command they will be disqualified. And if because of their vote Mr Rawat loses the floor test, then logically he should be allowed to take a floor test once again in view of the changed composition of the assembly. That would amount to just piling on the agony. As of now, all the three sides — the Centre, Congress and rebel MLAs — have gone to court or are planning to do so.

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In 2006, when the Supreme Court issued notice to then Lok Sabha Speaker Somnath Chatterjee after some MPs were expelled on charges of bribery, Mr Chatterjee sent it back to the court without replying to it on the grounds that “no court had jurisdiction in the matter”. But 10 years after that both the legislature and the executive are seeking legal relief related to issues that they should have been able to sort out themselves by just following the procedure. This is unfortunate.