In Greek mythology, it is said that Lycurgus, the ruler of Sparta, elicited a promise from his subjects, assuring him of the immutability of his laws till he returned from an impending journey. To make his laws immutable, Lycurgus never returned. Seven justices of the Indian Supreme Court on a historic day in 1973 christened themselves as modern-day Lycurguses, seeking to create, in India’s constitutional context, an island of immutability, aptly titled the “basic structure”. Its value, much like Lycurgus’s fundamentally just laws, has been established over time. Most recently, the Supreme Court implicitly relied on it and > struck down the unilateral actions of the Governor of Arunachal Pradesh in summoning an Assembly session and sending messages to the Assembly as unconstitutional.
As in most other cases where a facet of the basic structure doctrine has been pressed into service, the ends sought to be achieved in the Arunachal Pradesh judgment were lofty — upholding the rule of law, safeguarding the power of judicial review and circumscribing the role that an unelected Governor could play in determining the future course of State politics. However, in reaching these unarguably desirable results, the judgment contains some troubling reasoning that has potential consequences for the future of government- judiciary relations in India.
The Governor’s discretion In the lead opinion of Justice J.S. Khehar, three propositions of law are clearly laid down — first, the Governor has no power to unilaterally summon an Assembly session unless the government has, in his view, lost its majority; second, he cannot take steps relating to disqualification of the Speaker; and third, he is barred from unilaterally sending messages to the Assembly on any matter. The underlying justification for each of these is the constitutional role of the Governor as the titular head of the State executive. According to Justice Khehar, the Governor is bound by the “aid and advice” of the elected Council of Ministers as the default rule. While he has the discretion to act on his own in certain matters, those matters must be specified “by or under the Constitution”. Inviting the leader of the majority party to form a government is an example of such a matter since there is no Council on whose aid and advice the Governor can act. On the contrary, calling an Assembly session, dictating its agenda and sending messages to the House are not.
According to Justice Khehar, this understanding concords with the larger scheme of the Constitution pertaining to the role of Governors. Unelected Governors were never envisaged as wielding significant powers relating to State administration. They merely possessed the formal authority of state and could act as a safety valve in case there was a breakdown of constitutional machinery. This view is correct, albeit partially — discretion being vested in Governors was a thorny issue in discussions in the Constituent Assembly. The analogous power of the colonial Governor had created great disaffection leading to a strong sentiment to remove discretion of the Governor altogether.
However, in a seminal speech in the Constituent Assembly on July 15, 1947, Vallabhbhai Patel attempted to strike a balance. While ministerial responsibility would be the fundamental rule, the Governor could exercise his discretion in a few matters which were either widely accepted or necessary in an emergency. It is telling that summoning and dissolving Assemblies was one such matter.
Equally, it would be remiss to not point out that the same scheme of the Constitution never envisaged judicial review to correct any such actions of the Governor. In fact, Article 163 specifically provides that in determining which matters fall within the discretion of the Governor, the Governor’s decision will be final. A literal interpretation of this clause would mean that were there any doubts in the constitutional scheme as to whether a Governor could act on his own accord in relation to a matter or not, such decision would rest with the Governor as the highest constitutional authority in a State. It would not be the domain of the courts.
However, for the Supreme Court, an appeal to the scheme of the Constitution and the basic structure doctrine was sufficient to deny the Governor such discretion. This view is founded on the baseline assumption that judicial review is all-pervasive, irrespective of what the Constitution actually says. There is little doubt that such creativity in interpretation was crucial in this case to strike down the actions of the Governor as unconstitutional, which was unquestionably the right result. However, the bluntness of the tool, combined with the blitheness with which judicial review, a basic feature, was used as an interpretive tool contrary to its original intent, means that larger questions about checks and balances in the constitutional framework must be confronted.
Gubernatorial appointments Any reference to theoretical questions pertaining to checks and balances must necessarily be seen in light of the reality of politicised gubernatorial appointments. There is a marked mismatch between the understanding of the Constitution of the Governor as the dignified head of the State executive and the regular turnover of Governors depending on the party in power at the Centre. This mismatch earlier manifested itself through regular invocations of President’s Rule in States; now that invoking such rule has become onerous owing to strict scrutiny by the Supreme Court, in Arunachal Pradesh the Governor attempted a more direct interference.
The court’s response, acutely cognisant of this history, firmly shuts the door on all such actions. It circumscribes the role of the Governor to an extent that no doubts remain that he is a mere figurehead at the apex of the State administration. While political reality demanded such an interpretation, its definitiveness means that what is lost in the process is any possibility of the Governor acting as a bulwark against abuse of power by an elected State government. The phenomenon of Speakers acting politically, not allowing a no-confidence motion to be tabled and minority governments not summoning the Assembly are not uncommon. In such situations, the Constitution envisaged a restorative power being responsibly exercised by the office of the Governor. However, the propensity of successive governments to hijack such powers for partisan ends trumped this check and balance function. The Supreme Court, by this judgment, has provided its imprimatur against any such role for the Governor in the future.
Changing nature of checks and balances In substitution, the court has itself taken on the mantle of checking constitutional infractions by a government whenever and wherever they might occur. There are two simultaneous trends at play here — first, a circumscribing of the powers of the legislature and executive based on a careful reading of the Constitution; second, a creeping extension of judicial power based on a nebulous understanding of the basic structure coupled with an intrinsic belief about the court’s own good intentions. This interplay is not unique to this case. Variants of it are clearly visible in three of Justice Khehar’s recent and seminal constitutional law opinions — > striking down the National Tax Tribunal Act for being excessively executive-centric; declaring the >National Judicial Appointments Commission unconstitutional for taking away judicial primacy in appointment of judges; widening powers of contempt of court by keeping Subrata Roy incarcerated for any length of time that the court feels is necessary to secure compliance with its orders. The rigour that justifies his views on why the Constitution ought to be interpreted in a manner that keeps the executive and legislature in check is in sharp contrast to the assertions that justify judicial expansionism.
Consequences beyond the case This dissonant understanding of the Constitution has consequences far beyond the facts of this case. First, it reinforces the truly independent nature of the Indian higher judiciary. That the court can so boldly speak truth to power, unseating Chief Ministers and turning back the clock, is testament to the respect accorded to it by the people and governments. Second, it causes a subtle shift in perception of the court from an apolitical institution to an intensely political one. This perception has little to do with the rightness or wrongness of its judgment, but is rather an inevitable by-product of a court that takes its functions of checking and balancing political organs of state very seriously. Third, it adds grist to the clamorous mill demanding greater and more meaningful accountability for judges who exercise such immense power in India’s constitutional framework. With judges using both the basic structure doctrine to strike down constitutional amendments and its facets as tools for interpretation of the Constitution, greater public knowledge on diverse aspects pertaining to their appointments, performance and functioning are going to be continually sought.
Taken together, these tectonic shifts pertaining to government-judiciary relations might ultimately be contested at a fundamental level, questioning the legitimacy of the basic structure doctrine that lies at the heart of the Supreme Court’s current expansionist avatar. If the court continues unabated in this avatar, in a modern-day retelling of Lycurgus’s myth, Lycurgus himself might attempt to return, giving his hitherto immutable laws a timely burial.
Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy, a Delhi-based legal think tank. Views are personal.