The Jharkhand case: With great respect

1. That the Session of the Jharkhand State Assembly convened for 10th March, 2005, be directed to continue on 11th March, 2005, and on that day the vote of confidence be put to test, and that the order of the Court would constitute notice of the meeting of the Assembly for 11th March and no separate Notice would be required.

2. That the only agenda in the Assembly on 11th March, 2005, would be to have a floor test between the contending political alliances;

3. That the proceedings in the Assembly shall be conducted totally peacefully, “any disturbance, caused would be viewed seriously by the Court”;

4. That the result of the floor test would be announced by the Protem Speaker “faithfully and truthfully”; and

5. That the Chief Secretary and the Director General of Police, State of Jharkhand, would see that all the elected Members of the Legislative Assembly freely, safely and securely attend the Assembly and no interference or hindrance is caused “by anyone therein”.

If the end justifies the means, there is no doubt that it was this firecracker order that prompted the Central Government of the day to withdraw its party support to a minority Chief Minister (who should never have been sworn in by the Governor as the State Chief Minister, in the first place) which in turn prompted Mr Soren to hand in his resignation making way for the majority party in the Assembly to form a Government. We should all be cheering the Court for upholding Good Governance, the Rule of Law and Parliamentary Democracy. Yes. But I have reservations—and I must express them.

I believe that in every branch of human activity—whatever it be, whether it is politics or law or any other—the important thing is for those in charge to think (as the saying goes) two steps ahead of the market. This is where the order of the Supreme Court is (with great respect) to be faulted—the delicate balance of powers in our Constitution has been disturbed. This why Mr Somnath Chatterjee as the acknowledged Head of all Legislative Bodies in the country was right to express his anguish.

The problem, as it appears to me, is that whatsoever the provocation and however justified by events, a coach-and-four has been driven through what I would call the boundary-provisions in our Constitution. To me, the order of March 9 serves as a (disturbing) precedent for Courts—in the future—not only the Supreme Court but also any High Court—to direct how proceedings of the Lok Sabha or Rajya Sabha or State Assemblies should or should not be conducted by its presiding officers. After all, the powers of High Courts to issue writs, orders and directions are co-equal with the powers of the Supreme Court.

Let me explain. Under our Constitutional Scheme, whether we like it or not, the two Houses of Parliament and all Legislative Assemblies in every State are placed on the same exalted footing. Under Articles 122 and 212 of the Constitution, the validity of any proceedings in Parliament or in any State Legislature cannot be called in question (in any Court) on the ground of any alleged irregularity of procedure and no officer or member of Parliament (or of any State Legislature) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, can be made subject to the jurisdiction of any court in respect of the exercise by such officer or member of those powers. That some State Legislatures and their presiding officers do not deserve the immunity prescribed in Article 212 may justify an amendment to that provision; it does not justify a transgression of it.

Theoretically speaking, the order of March 9 is a sufficient precedent for the Courts (the Supreme Court or any High Court) to direct who should administer oath to Members of Parliament, and as to when a session of Parliament should meet and continue meeting, as to what should be the agenda and as to when directions should be issued for a vote (whether a vote of confidence or otherwise) to be taken on the floor of the Lok Sabha. It would also serve as a precedent for the Courts (including the Supreme Court or any High Court) for issuing directions as to when the result of any vote taken inside the House should be announced. Besides, the order of a Court could take the place of the customary summons of the President (to members) as to when the Lok Sabha or Rajya Sabha is to meet and for what purpose. What was done for a Legislative Assembly could obviously be replicated—for Parliament. This is why a Presidential Reference was called for, particularly because the Supreme Court order had (unconsciously) overlooked and ignored binding precedents in landmark cases—Keshav Singh’s case (1975) (Bench of 7 Judges) and in the case of Khoto Hollohan (Bench of 5 Judges): the latter had clearly established that proceedings inside State Legislatures cannot be dictated to by Courts nor called in question by Courts, even when they have not been conducted in accordance with the Rules of Business of the House.

And then, as the saying goes, “What is sauce for the goose is sauce for the gander.” Could the conduct of a judge of the Supreme Court or High Court or their judgments be discussed or criticised inside the House (of a State Legislature or of Parliament). God forbid, no—but why not? Only because of the balancing boundary provision—Article 211 qua State Legislatures and Article 121 qua Parliament (discussion inside the Houses of any judgment or conduct of any Judge of the Superior Judiciary is constitutionally prohibited).

The great organs of the State are by constitutional diktat left supreme in their own respective spheres. That is only because the supreme document of governance—the document that binds Courts, Parliament and State Legislatures is above them all—the Constitution, is on a pedestal (as it were) proclaiming to one and all that “how so ever high you be the Constitution is above you.”

Lastly (and above all), to invite the Court’s attention to the fact that it has overlooked a Constitutional provision (and the Court should correct it) is by no means an invitation to a “confrontation” with the Judiciary. Far from it. After all, it was a Judge of the Supreme Court—a distinguished one at that—who invariably liked to quote in his judgments a sentence from a famous letter of Oliver Cromwell written to the parishioners of the Church of Scotland, which read: “I beseech you, in the bowels of Christ, think it possible you may be mistaken.” Good advice. I may be mistaken, you may be mistaken. Even Judges, howsoever high, may be mistaken.

Professor Goodhart was Editor of that most prestigious English Law Quarterly—the LQR— for 50 long years. On his retirement, Lord Diplock, a senior member of the Judicial Committee of the House of Lords (English’s highest court of appeal) wrote a commemorative little piece. He (Diplock) said that he always thought that Professor Goodhart was on his side, because whenever Diplock’s judgment was commented on (by Professor Goodhart) the remarks were always prefaced with the words: “but with greatest respect”. Diplock thought: “Ah, this must be because Goodhart and I belonged to the same university”.

But when he retired, Prof Goodhart let it be known how he had learned to criticise judgments without appearing to be offensive—he learnt it from Sir Frederick Pollock. The advice of the great Pollock was that if you are doubtful whether the judicial reasoning is wholly unassailable, you preface your comment on the judgment with the words: “with respect”. If the judgment is obviously wrong, you say, “with great respect”. And if it is one of those judgments that have to be seen to be believed, the formula to adopt is: “but with the greatest respect!”