Separation of powers: Don't mess with it

Critic Martin Esslin had coined the term “Theatre of the Absurd” in 1960 to describe the plays written after the Second World War, which left people baffled. Unlike traditional dramas, these plays had hardly any plot or human character that presented completely unmotivated actions. Such a play expressed what happens when human existence is bereft of any meaning or purpose, and thus there was a breakdown of all communications. Politics has been pilloried as an amoral game since time immemorial, but now after further degradation it too resembles a “theatre of the absurd”.

The Uttarakhand political crisis is no different, but has come to a finale with the Harish Rawat government being reinstated after winning the vote of confidence held at the behest of the Supreme Court under its own monitoring. Though the judicial intervention prevented politics from sinking further it raises serious questions about the doctrine of separation of powers embedded in the Constitution of India and recognised by the SC itself in Indira Nehru Gandhi vs Raj Narain (1975) as a basic feature of the Constitution.

This is the first time that President’s Rule has been revoked because of judicial intervention. In the Bihar Dissolution case, the SC, in its short judgement on October 7, 2005, declared the dissolution of the Bihar Assembly unconstit-utional but did not revive it, and allowed the poll process to go on. The detailed judgement was pronounced on January 24, 2006. A short order was delivered earlier as the poll process was on and there was uncertainty all around.

The drama of Uttarakhand began with a group of nine Congress MLAs revolting against the state government, followed by the Speaker disallowing the demand for division of votes and declaring the appropr-iation bill passed, and the Centre imposing President’s Rule one day before the floor test was due to be held. The Congress challenged the imposition of President’s Rule in the Uttarakhand HC.

It quashed it and made scathing remarks not only against the Centre but also against the President. A judge is expected to be poker faced, but the way Uttarakhand Chief Justice K.M. Joseph made stinging obser-vations, the outcome of the case was a foregone conclusion. He said the President could go horribly wrong. He is right and its biggest example is the signing of the proclamation of Emergency by then President Fakhruddin Ali Ahmed.

Then Prime Minister Indira Gandhi went to Ahmed with Siddhartha Shankar Ray, who was not a member of her Cabinet, but the Chief Minister of West Bengal, and the President signed instantly on the dotted line. But it is equally true of the court also, which is not infallible either. Its most glaring example is the Habeas Corpus case in which the Supreme Court ruled that people did not have any right to life during the Emergency.

Another absurdity came to the fore when an impetuous Harish Rawat assumed the reins of power suo moto after the HC pronounced its order, though he did not even have the certified copy of the judgement. He should have acquired the copy first and then made it over to the governor for onward transmission to the President, with a request to revoke President’s Rule. The Centre moved the SC against the decision of the HC. The court asked the government whether President’s Rule could be lifted for two hours for conducting the floor test.

The question arises who was holding the reins of the government during those two hours, and if the chief minister was not reinstated, then whose trial of strength it was? The Constitution does not envisage a situation without a government even for a moment. Further, the SC gave detailed guidelines on how the floor test would be conducted, reducing the Speaker of the Assembly to a virtual nonentity even though the Assembly is directly under his control.

Procedural matters are decided solely by the Speaker, who controls the the House. But the precedent of giving direction for conducting the floor test and the modalities to be observed was set in March 2005 when the SC gave instructions to the pro-tem Speaker of the Jharkhand Assembly to hold the floor test as governor Syed Sibtey Razi appointed Shibu Soren CM, who did not have a majority. This time the SC went one step further by keeping the Speaker out of the proceedings. The Constitution envisages a balance of powers. It is the guiding principle of the constitutions of modern democratic states. This principle of separation of powers must, therefore, be respected by all institutions in this country.