The inevitable fall of the troubled Congress-Janata Dal (Secular) coalition government in Karnataka was precipitated after a long-delayed and controversial trust vote. This imminent event occurred after the long-drawn political and legal contest in the state Assembly, the Supreme Court, the media and the public domain in general. After the swearing-in of Bharatiya Janata Party’s (BJP)BS Yediyurappa as CM and ahead of his trust vote, the Karnataka speaker KR Ramesh Kumar disqualified seventeen legislators. This decision has already been challenged in the Supreme Court by one of the rebel MLA.
This crisis mirrors the 25-year-old constitutional battle which led to landmark SR Bommai judgment. It was a prolonged battled which involved the Speaker, the Governor, the ruling party and the Supreme Court. Mr. Bommai was the chief minister of Karnataka but his government was dismissed by the then Governor on the account of withdrawal of support of 19 MLAs. The Supreme Court held the dismissal of government unconstitutional.
HD Kumaraswamy found himself in almost similar circumstances when over 16 MLAs from the ruling alliance offered their resignation to the Speaker holding that they are doing so out of their free will. However, the Speaker, as well as the leaders of the Congress-JD(S) combine, denied the argument. Many alleged that these MLAs were bribed. The ‘rebel’ MLAs of Karnataka argued in the Supreme Court that the Speaker had deliberately delayed the decision on their resignation letters, and therefore violated his duty to act in good faith. The MLAs had requested the Court to issue a directive to the speaker to act in a time-bound manner. The Supreme Court had ruled that the MLAs can’t be forced to take part in the confidence vote and the three-line whip issued by the Congress and JD(S) to vote in favour of the government did not apply to them.
As is clear from Article 190(3)(b) of the Constitution, the acceptance of resignation by the Speaker is not a matter of right of a legislator. It is subject to the Speaker’s discretionary satisfaction about the voluntariness or authenticity of the resignation. The exercise of the wide constitutional powers by the office of Speaker is supposed to be in line with the ‘sacred’ conventions of political neutrality and fairness, but it has been seen over the years that Speakers have repeatedly acted according to partisan motives. Case in point is the conduct of the last Lok Sabha Speaker in certifying Money Bills and refusing to hold votes of confidence.
The whole series of controversies raises a serious question over the sacred neutrality of the post of Speaker which has been questioned time and again in past. This also raises significant concerns about burgeoning judicial supremacy in a Parliamentary democracy which is founded on the principle of separation of powers. Article 212 of the Constitution provides immunity to Legislative procedure form judicial review. The Supreme Court has also affirmed the Legislature’s autonomy in 1959 in the MSM Sharma case, where it held: “No court can go into those questions which are within the special jurisdiction of the Legislature itself which has the power to conduct its own business..Mere non-compliance with rules of procedure cannot be a ground for issuing a writ under Article 32 of the Constitution.”
However, as recently explained by Justice Chandrachud in his dissenting judgment on the issue of the Speaker’s certification of the Aadhaar Bill as Money Bill held that "the validity of proceedings in Parliament or a State Legislature can be subject to judicial review on the ground that there is illegality or a constitutional violation." The idea of constitutional trust in the office of Speaker was also alluded to by the majority judgment in the Aadhaar case, where the Court observed that judicial review of the Speaker’s decision can be allowed in certain circumstance. This is in line with the jurisprudence emanating from the Kihoto Holohan case where the Court had partially allowed the review of Speaker’s decision on the ground of ‘illegality’ and exempted the cases where there was just certain irregularity in the decision of the Speaker.
In the context of the present case of judicial review, it is clear that the Court’s exercise of its role has been in dissonance with the constitutional scheme. However, the Court’s approach is a consequence of the contemporary political situation where constitutional offices have, in fact, violated sacred conventions of fairness.
Thus, the autonomy and dignity of the constitutional office of the Speaker has been subject to judicial review as the degree of discretion envisioned under the Constitution has become subject to political expediencies and choices of the ruling political formation. Therefore, by extension subject to the Executive, which severely affects the separation of powers.
Hence, political conventions have outlived their utility as they have been practiced in their breach. While this has led to judicial intervention in order to enforce these political compromises and arrangements, it has negatively affected the separation of powers. This has also elevated the judiciary to the enviable supreme pedestal of arbiter of power, hence causing institutional imbalance. Thus, there is an urgent need to reorient checks and balances between institutions and to provide for clear legislative and constitutional safeguards against abuse of discretionary powers. The principle of constitutional trust requires meaningful and robust enunciation of our constitutional framework so that the carte blanche of constitutional power is effectively regulated.
(Prannv Dhawan and Bhaskar Kumar are students of NLSIU, Bengaluru)
The views expressed above are the authors' own. They do not necessarily reflect the views of DH.