When expediency outstrips constitutionality the picture is not rosy. That is what is again presented by the Supreme Court order of November 26 in the Maharashtra government formation case.
Certain obvious and settled legal positions may be restated without the need for apology.
There is falsity in the famous extra-curial words of former US Chief Justice Charles Evans Hughes that “the Constitution is what the judges say it is”.
Rather as Justice Krishna Iyer wanted the judges to solemnly remind themselves, “However the Court interprets the Constitution, it is still the Constitution which is the law and not the decision of the Court.”
It is difficult to visualise how the Maharashtra petition is maintainable under Article 32, which is invocable only for the protection of fundamental rights; infraction of what fundamental right was being agitated is incomprehensible.
But a far more fundamental constitutional conundrum is the court’s direction that the floor test be conducted by the pro-tem speaker by 5 pm on November 27.
It is now axiomatic that the test of majority is to be only on the floor of the House and nowhere else. It is necessarily a proceeding of the House.
Constitutional law prescribes the House is ready and competent to transact business only after it has been opened by the head of state with his opening address.
The well-settled constitutional position is: The first meeting of the House takes place on the day on which the opening address under Article 87(1)/176(1) is delivered and the cause of its summons declared; not on any earlier day on which members are summoned to take their oath, as the session is not opened and no public business can be transacted in the House until the opening address is made.
The House is constituted with a notification under the Representation of the People Act. But the first session commences only after the members take their seat by taking oath and the Speaker is elected.
The House is then ready to hear the opening address and to proceed with the initial business of the session.
There can be no legal beginning of a new legislature until then. Before the opening address no member can ask questions or make any comments in exercise of his rights which would commence only after the session has been opened.
The opening address is a mandatory requirement and failure in that regard would be a breach of a mandatory constitutional provision and purported proceedings, if any, in the House would be a nullity.
A vote of confidence is a business of the House where members exercise their rights as members. That is to take place and the confidence or lack of it in the government is to be determined only on the floor of the House as emphasised in the Bommai case that is referred to. But here there is no House yet.
‘Floor of the House’ is a term of art which in law means in the context of our constitutional scheme that it is the House of the legislature duly constituted and constitutionally ready and competent to transact business.
That stage is reached only after it has been opened by the address of the head of state. The direction that the pro-tem speaker conduct the trust vote before the opening address and the consequent vote cannot be deemed to be a proceeding of the House and is a nullity. This is not a procedural irregularity but a substantive illegality.
The court’s direction may have achieved many things desirable, like preventing alleged horse-trading, but the process of achieving good by constitutional adjudication is equally important. Whoever may be the winner, the loser is constitutionalism.
The question is not about the result but of the legitimacy and propriety of the direction. It may have solved an urgent problem but a faint crack has developed in the foundations of our system.
The approach of being pragmatic instead of worrying about theoretical niceties can grow and become a distortion of constitutional government and undermine the neat but delicate constitutional balance.
This is what happened in the earlier cases of Jharkhand and Karnataka and now Maharashtra where the same unconstitutionality has been perpetuated.
The decision becoming infructuous because of the CM’s resignation does not absolve it of the vice of unconstitutionality.
The same result would have been achieved more legitimately by completing the constitutional process of electing the Speaker, delivering the opening address and taking up the vote of trust immediately thereafter. As some have said, the apex court is “an educational body and the Justices are inevitably teachers in a vital national seminar”. But the mandatory constitutional requirement of the opening address was not brought to the Court’s notice nor noted by the Court.
The still larger issue remains. The House is the absolute master of its affairs, agenda, proceedings and the time and manner of conducting them, and this cannot be directed by any court.
Such directions by the court have been complied with and very desirable results have been achieved. But desirability is not the test of power.
Such directions are abided by as a matter of grace and courtesy, not because they are binding and inviolate. The legislature could lawfully ignore them.
As the SC has said, nothing that flows from a law is an evil; and by the same measure nothing that is not permitted by the law can be good! Cobbling together an unholy alliance at an unearthly hour was undoubtedly deplorable.
But two wrongs do not make a right. The court has often observed it is not the only protector of democracy.
As a people we must get away from the fallacy of the “legal solubility” of all problems. It is naive to believe that guardianship is synonymous with democracy. Judicial intervention in the present case is one more unhealthy and undesirable precedent, another instance of defiling the Constitution.
V Sudhish Pai
An expert on the Indian Constitution
Email: vsudhishpai@gmail.com