Restoring trust

SC does well to circumscribe Karnataka governor. It must define boundaries of gubernatorial discretion

Written by UPENDRA BAXI | Published: May 18, 2018 11:59:35 pm

The present events in Karnataka poignantly demonstrate what has been repeatedly shown in Independent India’s history.

The present uses to which the Constitution is put remain bewildering to a lay citizen. Bommai v Union of India (1994) held explicitly that in situations where there is a hung assembly (where no political party has obtained a clear majority of seats), the final decision rests not with the various feuding parties but with the concerned legislature through a “floor” test (voting on a confidence vote. This means that the governor’s discretion is always a triggering act that enables the legislature to decide the matter. The gubernatorial discretion is an aspect of trusteeship; the final powers vest with the concerned legislature. But it may not be used to defeat or to deny the constitutional provisions like that of anti-defection in the Tenth Schedule.

Constitutional “good faith” requires an “informed” act of discretion resting on “sound basis,” aiming to provide a “stable” government. Further, all three considerations have to be applied with (in President Abdul Kalam’s words echoing the Sarkaria Commission Report) a duty to “rise above day-to-day politics and override compulsions emanating from the central system or the state system” (regardless of a pre-poll or post-poll alliance).

Courts, commissions, and academic commentators have reiterated the pivotal role of governors in creating an expeditious floor test, within 48 hours or a week (though the maximum period is 15 days). But while impartiality is theoretically prescribed, it has always proved to be a difficult virtue. Governors are appointed on sheer political expediency; the courts remind them repeatedly of their constitutional position and role. But ultimately, it is the responsibility of legislatures to conduct themselves constitutionally. What can be said in favour of the decision taken by Vajubhai Vala? The chosen legal experts (whose names are not in the public domain) probably advised him that there were no fixed parameters for the exercise of discretionary powers. In addition, there were two diametrically opposed views that thrived on the cultivated confusion between “mandate” and the appropriate method of calling a “majority” party to form a government.

The mandate idea has been extensively discussed in Kesavananda and cannot be explored here but it is well known that a larger voting percentage share does not necessarily translate into a higher number of seats in our electoral system. What is relevant to the governor’s exercise of discretion is not the popular mandate but assignation of the prerogative to form the government to a single majority party. Precedents of gubernatorial discretion are varied, and the governor may decide according to each situation. However, it is settled that the floor test should be done expeditiously within 48 hours or a week. The outright grant of 15 days is an open invitation for “ideological realignment”— a term that conceals buying and selling of legislator’s party preferences. The governor, as it happens, did not check fully the evidence of prima facie majority, although he was aware that the post-poll coalition had 116 members against the claim of the BJP 104 seats. The BJP’s act of political hope that it will manage to rise somehow to the required majority from its 104 seats should have been closely examined to avoid the allegation that action was undertaken without due diligence.

The present events in Karnataka poignantly demonstrate what has been repeatedly shown in Independent India’s history. As Udai Raj Rai says, political institutions “work by natural play of political forces, and not by decorative, though irritating, discourses and platitudinous discussions”. In other words, what matters is the acquisition, distribution, exchange, and consumption of the power to rule, although it is dressed on all sides by appeals to democratic ideals and constitutional faith.

But the interpretation of norms and their development are judicial duties. Unlike political actors who pursue politics of interest, courts perform the politics of values (not what we desire but what we ought to). Power may conscript the values of the Constitution to its own ends, but constitutional courts do not act in self-interested ways. The trick consists in retooling the law and jurisprudence as an “enterprise” (to use Lon Fuller’s words); there is no guarantee that the enterprise will always succeed but is it a reason to altogether abandon the quest?

The late midnight sitting of the Supreme Court of India on May 16/17 suggested some grounds for hope. While declaring itself unable to stay the early morning swearing in of B S Yeddyurappa, the SC asked him to file an appearance and to share the two letters handed to the governor claiming majority for the BJP. It also described as “preposterous” the argument of the attorney general that the defection law “will not apply before the elected Member is sworn as an MLA”.

Continuing the hearing on May 18, the same Bench comprising Justices A K Sikri, S A Bobde and Ashok Bhushan, took the view that a floor test was the most “practical option” and overruling the Karnataka counsel, ordered a floor test on Saturday at 4 pm. The Court was also assured that no member of the Anglo-Indian community will be appointed for now and the pro tem speaker shall conduct the proceedings. Some controversy has already arisen on the choice of K G Bopaiah (not the seniormost member of the legislature) as pro term speaker. The substantive proceedings in the next 10 weeks will hopefully settle the nature and scope of gubernatorial discretion. The SC should also develop its powers of suggestive jurisprudence to reinforce the Sarkaria and Puncchi commission reports. It should resolutely negate the Law Commission draft white paper (from April 17, which recommends simultaneous elections to the Lok Sabha and the assemblies from 2019) which problematically suggests the relaxation of provisions of the Tenth Schedule in the case of a hung Parliament or assembly.

The Supreme Court’s revival of democracy will for long be applauded, and it must continue its quest to augment constitutional discipline, regardless of the political events today. To ensure an agenda of effective norms that arrest the abuse of discretion and power from all our political institutions is a Herculean task, but one that alone justifies judicial review powers.

The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi

Source: indianexpress

Why the attempt to deny Dalit status to Rohith Vemula is a shocking ignorance of the law

Opinion

Or a deliberate misrepresentation. Apart from being extremely undignified, it is indicative of the high stakes involved.

Anup Surendranath  · Today · 07:30 pm

The political pressure arising out of Rohith Vemula’s suicide is evident from the wide range of unsavoury responses we have seen over the last few days. Amongst the worst of those responses has been the attempt to deny Rohith Vemula his Scheduled Caste status after his death.

One of the arguments being put forth to not treat Rohith Vemula’s suicide as a Dalit issue is that he cannot be considered a Dalit in the first place.

Apart from being extremely undignified, it is a response that demonstrates a shocking ignorance of the law.

The argument is that since his father belonged to the Vaddera caste (Other Backward Classes or OBC in Andhra Pradesh) and his mother to the Mala caste (Scheduled Caste or SC in Andhra Pradesh), Rohith Vemula takes on the caste of his father and not his mother.

That argument reflects an extremely problematic position in Hindu personal law that has long been abandoned by the constitutional jurisprudence developed by the Supreme Court in the context of determining social disadvantage.

Judicial discourse

The judicial discourse on determining caste status arising out of inter-caste marriages is now well-settled but has followed two trajectories in the past. However, for the purposes of establishing social disadvantage, neither of those two trajectories endorsed the position in Hindu personal law that a child born out of an inter-caste marriage assumed the caste of the father.

These questions have come to the Supreme Court in circumstances where an individual’s membership in a beneficiary group has been under challenge under a variety of circumstances relating to reservations in representative bodies, education and public employment.

In adjudicating these disputed claims about caste status arising out of inter-caste marriages, the Supreme Court early on in cases like Chatturbhuj Jasani (1954) and Jahan Ara Jaipal Singh (1972) adopted an approach that focused on the assimilation of the concerned person within the beneficiary group and her acceptance by other members of the beneficiary group.

It will be noted that even within this approach the Supreme Court refused to adhere to the rule that the person assumes the caste of her father.

The Supreme Court started doubting the above approach in Valsamma Paul (1996) while still upholding the position that the father/ husband’s caste in an inter-caste marriage could not automatically determine caste status of the child/ wife.

The disagreement with the approach developed in Jasani and Jahan Ara was over the role attributed to assimilation within the beneficiary group and the acceptance of the concerned person within that group. In Valsamma Paul, the Supreme Court took the view that the relevant consideration would be the life experience of the individual.

However, the decision in Valsamma Paul was by a two-judge bench whereas the decisions in Jasani and Jahan Ara were by three-judge benches. The approach that considered the life experience of the individual as the determinative factor received the approval for a three-judge bench of the Supreme Court in Sobha Devi (2005). In a decision from January 2012, the Supreme Court settled the position in favour of the approach in Valsamma Paul.

The Supreme Court in Rameshbhai Naika (2012) was confronted with a judgment from the Gujarat High Court that upheld the decision of a local authority to cancel the appellant’s Scheduled Tribe’s certificate on the ground that the appellant had to necessarily inherit his father’s forward caste status and not his mother’s Scheduled Tribe status.

The Supreme Court held that a mechanical application of the position in Hindu personal law that a child born out of an inter-caste marriage inherits the caste of the father is constitutionally invalid as far as determining beneficiaries of reservations is concerned. In the context of inter-caste marriages, the court took the view that it must be the individual experience that must be established to determine the membership in a beneficiary group.

Missing the point

Similarly in Rohith Vemula’s case the argument that he was not a Dalit based on his father’s OBC status misses the entire point of the constitutional jurisprudence that the court has attempted to develop.

When dealing with inter-caste marriages, the Supreme Court has adopted the sensible constitutional position that a mechanical application of Hindu personal law cannot determine social disadvantage. It is futile and incorrect to argue that Rohith Vemula’s caste status is determined by his father’s caste.

The attempt to misrepresent the constitutional position on this issue is indicative of the stakes involved.

As a society we collectively failed in protecting his dignity in life and the least we can now do is to zealously guard his dignity in death.

Anup Surendranath’s doctoral work at the University of Oxford was on reservation policies in India and he currently teaches constitutional law at National Law University, Delhi. The legal issue in this article was discussed in an earlier blog post on ‘Law and Other Things’ in January 2012.

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Source: scrollin