India's Supreme Court's 'power grab' tarnishes democracy

The court should exercise restraint and confine its decisions to areas where it has authority.

By Sandeep Gopalan (Legal Tangle)

Published: Sat 19 May 2018, 9:27 PM

Last updated: Sat 19 May 2018, 11:29 PM

The world's most activist court - the Indian Supreme Court - has exceeded the boundaries of its powers again in ordering Karnataka Chief Minister Yeddyurappa to prove his majority via a floor test. Friday's order - after theatrical hearings past midnight earlier, more suited to an extreme national emergency - marks another milestone in the Court's power grab. It has a long record of legislating on all manner of matters reserved by the constitution to Parliament - typically with public approval because of political ineptitude. It is not clear that this taking over of powers expressly conferred on the Governor of the state will win it much acclaim because the governor was exercising his powers lawfully.
The order is a clear violation of the principle of separation of powers and checks and balances. The Supreme Court is a coequal branch of government - not superior to the Executive and Legislative branches under the constitution. So, where does it get its authority to issue such an order?
First, a recap on what the SC ordered. First, it reversed the Governor's decision and ordered a very short-time frame of two days for the BJP to prove its majority. Second, it barred the Governor from nominating any member from the Anglo-Indian community as a member of the House. Third, it mandated Yeddyurappa not to take any major policy decisions until his majority is established. And finally, it ordered the Director General of Police to provide adequate security measures for holding the vote.
The problem is that the Supreme Court does not have the power to make these orders under the Indian constitution. The power to summon the House is specifically conferred on the Governor and not the Supreme Court under article 174: "The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit ."
In contexts involving the convening of the legislature to prove a chief minister's majority, the Punchhi Commission on Centre-State Relations' 2010 report endorsed the Sarkaria Commission's previously articulated view of constitutional requirements. The 2010 report stated that the Governor should "advise the Chief Minister to summon the Assembly as early as possible." In the event that the CM does not act on the Governor's advice, "the Governor may, summon the Assembly for specific purpose of testing the majority of the Ministry."
The 2010 report also endorses the Sarkaria Commission's view on the time-frame for convening the House for proving majority: "The Assembly should be summoned to meet early within a reasonable time. What is 'reasonable' will depend on the circumstances of each case. Generally, a period of 30 days will be reasonable, unless there is very urgent business to be transacted ."
Clearly, these are powers vested in the Governor of a state. He alone can summon the Assembly and determine what time is reasonable for a chief minister to prove his majority. The two commissions on centre-state relations seemed to indicate a much longer timeframe than two days and they were not oblivious to the possibilities for horse-trading. They recognised that determining when to convene the house entailed discretion reserved to the governor.
Notably, the 2010 report does not envisage a role for the Supreme Court in government formation even in situations involving a hung assembly.
This is not surprising - it merely echoes the fact that the Supreme Court has not been provided with a say in government formation under our constitution. That is for good reason - the power to appoint a chief minister is specifically conferred on the political branches of government. For the Supreme Court to ignore the clearly demarcated zones of constitutional power and encroach on areas where it has been specifically excluded is an ultra vires act.
The court should exercise restraint and confine its decisions to areas where it has authority. It should remember that in a system based on the rule of law, it can only act under the authority of law. In other words, going where specific authority has not been conferred is extra-legal. It is disrespectful of the other co-equal branches and violates the constitution.
Sandeep Gopalan is the pro vice-chancellor for academic innovation and a professor of law at Deakin University

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