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Constitutionally off-track

Judges sometimes talk too much, on all manner of subjects, in the course of court hearings. Unsurprisingly, their sharpest and most colourful observations are grist to the news mill; and there is nothing that rules out publication of such content. At times, the news media project these oral observations — which, not being even obiter dicta, are not part of the court record, have zero weight in law, and cannot be cited in any meaningful way — in a manner that fails to distinguish between what is relevant and binding in court proceedings and what is not. Oral observations may reveal the mind of the court — or may just be letting off steam. But while having no standing in law, they may colour the public mind and have an impact in the political sphere. Senior Supreme Court Judge B.N. Agrawal’s outburst in open court on what might need to be done, constitutionally and politically, in Tamil Nadu during the course of hearing the AIADMK’s version of what was happening in the State on October 1 cannot be justified in terms of either sound judicial procedure or any standard of justice under the Constitution of India.

According to news reports, when the allegation was made by the AIADMK’s counsel that the Supreme Court’s restraint order on a bandh on the Sethusamudram issue in Tamil Nadu was not being obeyed “in letter and spirit,” Justice Agrawal responded: “If what you say is true, then there is [a] complete breakdown of the constitutional machinery in the State. We will recommend to the President to dismiss the DMK government in Tamil Nadu.” He also breezily observed that “if this is the attitude of the DMK government…a strong ally of the UPA government at the Centre,” the latter “should not feel shy to dismiss the State government.” No seeking the facts on the ground, no patience in hearing the other side — a pre-emptive leap to an extreme provisional conclusion, even if this was qualified by a couple of ‘ifs.’

There is serious concern today over judicial over-reach and even high-handedness. This concern has been reflected in the strong media and public protest over the shocking illiberalism and intolerance shown by the Delhi High Court in sentencing four Mid Day journalists to imprisonment for contempt of court on totally untenable grounds. It is true that a 1998 Supreme Court judgment [in CPI(M) versus Bharat Kumar & Ors], which upheld a Kerala High Court ruling of 1997, held all ‘bandhs’ — as distinct from ‘general strikes’ and ‘hartals’ — to be unconstitutional on the grounds that they “trampled upon the rights of the citizens of the country protected by the Constitution” and were “not in the interests of the nation,” tending to “retard the progress of the nation by leading to national loss of production.” Since then, numerous general strikes, hartals, and bandhs have taken place across the length and breadth of India, involving a plethora of political players and issues, with nobody in a position to make the fine academic distinctions that the Kerala High Court and the Supreme Court formulated in their judgments.

For example, in recent years the Bharatiya Janata Party and the saffron brigade have called for, conducted, and got away with several attempted bandhs. A case in point is the August 27, 2007 Hyderabad bandh protesting against the terror strike at Lumbini Park and Gokul Chat. And what about other forms of protest actions? Will the Supreme Court rule on what kind of constitutional animal is a ‘rail roko,’ of the kind the BJP State unit staged in Hyderabad in September 2007 against the Sethusamudram project? Does it fall under the definition of a general strike or a hartal or a bandh? Is it constitutional? As political leaders have observed, the logical consequence of the Supreme Court’s unevenly implemented ban on bandhs will be a ban on all protest actions and the right to strike. If that happens, the highest court in the land will itself be responsible for the trampling on fundamental rights that its 1998 judgment warns against.

Even more disturbing is the implication of Justice Agrawal’s remarks about dismissing a duly elected State government and imposing President’s Rule, especially in the light of what the Supreme Court has ruled in the Bommai case. In that historic March 1994 judgment, a nine-judge bench, reviewing the scandalous misuse of the knife of Article 356 of the Constitution, largely by Congress-run Central governments, over four decades, laid down new guidelines and standards for the constitutional exercise of that power. Thanks to that sagacious judicial intervention, Article 356 fraud has become much more difficult to commit, although still not impossible (as is evidenced by the cases of Bihar and Jharkhand in recent years).

Bommai full-throatedly asserted the power of judicial review over Article 356(1) proclamations, which can be struck down by the higher judiciary if they are found to be mala fide or based on wholly irrelevant or extraneous grounds. Nowhere does the Constitution or the Bommai judgment envisage any role for the Supreme Court in triggering the invocation of Article 356. Justice Agrawal’s oral observation, that the Supreme Court might “recommend” to the President dismissal of the DMK government, is shockingly unjust to Bommai. It is also constitutionally off-track, considering that there would be a flagrant conflict of interest between such pre-emptive, anti-democratic recommendation and the power of judicial review. The Central government has done well to make it instantly clear that nothing can be further from its mind than an unconstitutional course such as the dismissal of the DMK government.

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