Jugaad jurisprudence, the Tamil Nadu way

Fri 17 Feb 2017


There are few equivalents in the South Indian languages, or in English for that matter, for that amazing colloquial concept of North India called ‘jugaad’. According to Wikipedia, it is a word “which has various meanings depending on the situation”: “Roughly translated, jugaad is a ‘hack’. It could also refer to an innovative fix or a simple work-around, a solution that bends the rules, or a resource that can be used in such a way. It is also often used to signify creativity, to make existing things work, or to create new things with meagre resources.”

The current political situation in Tamil Nadu, with an officiating Governor having been seen to be seeking to reinstate a caretaker Chief Minister, with the possibility of a “composite” floor test, has smacked of jugaad jurisprudence being applied to circumvent the clear mandate of the Constitution.

Parliamentary principles

We have a parliamentary form of democracy, where the supremacy of the legislature is rarely subject to any other constitutional authority, including the courts. The principle of the old English case of Bradlaugh v Gossett , where courts do not interfere with the internal functioning of Parliament, has continued to be followed by Indian courts to this day. The limited inroad that Indian courts have made is in regard to exercising judicial review over disqualification of defecting members by the Speakers. When acting under the Tenth Schedule to the Constitution, the Speaker has been held to be a tribunal whose decisions can be judicially reviewed. That is the only exception, and courts have otherwise largely stayed away from being embroiled in the political thicket of partisan politics.

Parliamentary practice and procedure speak only of motions of confidence, or of no confidence. The House expresses its confidence in the council of ministers led by the Chief Minister or Prime Minister, leading to the continuance of the ministry. Alternatively, it expresses no confidence in them, leading to the ministry’s resignation. The House is not called upon to make a choice between two incumbent Chief Ministers. Two Chief Ministers simultaneously occupying constitutional office is an abomination which the Supreme Court once sanctified, in unusual circumstances, in Jagadambika Pal.

It happened in 1998

In 1998, Jagadambika Pal was sworn in as Chief Minister of Uttar Pradesh and lasted for three days in February. The previous State government led by Kalyan Singh was dismissed on February 21, 1998 by Governor Romesh Bhandari. Mr. Singh moved the Allahabad High Court, which termed the dismissal of his government unconstitutional on February 23, thereby reinstating the Kalyan Singh government. Mr. Pal appealed to the Supreme Court. On February 24, instead of ruling on the legal issues involved, or deciding which of the two Chief Ministers was the legitimate occupant of the chair, the bench headed by Chief Justice M.M. Punchhi, ordered a composite floor test to be held on February 26. On that day, both Mr. Pal and Mr. Singh sat as Chief Ministers in the U.P. Assembly, while the MLAs had the liberty to vote for either of them. Mr. Singh won the floor test, only to fall on a later day.

The order in the Jagdambika Pal case can only trace its power to Article 142 of the Constitution which authorises the Supreme Court to “pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it”. Orders passed under this article have no precedential value. Students of law and practitioners of serious constitutional law were unenthusiastic about the constitutional underpinnings of the order. Some wags in the corridor of the Supreme Court called the rough and ready measure “Punchhaiti Raj” in an apparent pun on the Chief Justice’s name. In an issue of the Supreme Court Bar Association journal of that time, the late Vinod Bobde, senior advocate of the Supreme Court, cartooned his dissent from the order. In today’s Tamil Nadu situation, where constitutional functionaries have glibly advised the Governor to have a composite floor test, it is necessary to remind ourselves that doubtful precedents must not be resurrected to constitute a recurrent danger to the normal functioning of a parliamentary form of government.

Shakespeare’s the guide

On the proper interpretation of legal precedents the caution administered in a judicial disagreement between Lord Denning and Lord Russell over the construction of a statute is most instructive. In Sydall v Castings Ltd. while overturning Lord Denning’s judgment in the court of appeal, Russell L.J. quoted a passage from Shakespeare in the The Merchant of Venice .

Bassanio: …And I beseech you,/ Wrest once the law to your authority:/ To do a great right, do a little wrong…

Portia: retorted: It must not be; there is no power in Venice/Can alter a decree established:/’Twill be recorded for a precedent/And many an error by the same example/Will rush into the state: it cannot be.

Then said Russell L.J.: “I am a Portia man.”

To my mind, we needed no “Daniel come to judgment” to be a “Portia Man” for Tamil Nadu. A composite floor test of the Jagdambika Pal kind necessarily involves two Chief Ministers being sworn in. It would have been anomalous, to say the least, if the leaders of the two factions had been both sworn in as Chief Ministers, only to resolve an intra-party dispute. The other option of having the caretaker Chief Minister seeking a motion of confidence, solely to be confirmed as a full Chief Minister, would also have been constitutionally improper. He was a constitutional functionary whose resignation had been accepted and continued in office only till a successor was sworn in.

There are no second thoughts available in law after a resignation is accepted. In Satish Chandra’s case, which involved the resignation of a Chief Justice of the Calcutta High Court, a Constitution Bench of the Supreme Court ruled that a resignation once accepted could not be withdrawn. The only way that the caretaker could be asked to seek the confidence of the Assembly once again would have been to swear him in again. But if he had failed to signal two-thirds strength to split the party and avoid disqualification of MLAs, it would have been an exercise in futility.

Beware the secret ballot

The secret ballot that was suggested in recent days as part of the floor test would also violate the anti-defection act. A floor test is not restricted to only members of the ruling party. There is a substantial minority party in the Tamil Nadu Assembly which can side even with the smaller faction of the ruling party in order to defeat the main faction. In this situation, a man invited to seek a vote of confidence could split his legislature party, without even achieving the necessary two-thirds strength.

For a Portia man, the best option in Tamil Nadu has all along been to call the leader of the legislative party, as declared by most legislators of the hitherto ruling party, swear him or her in as Chief Minister and require a vote of confidence to be obtained at the earliest. And clearly, at the end of the day, when jugaad ran out, the Governor really had no other option.

Sanjay Hegde is a senior advocate of the Supreme Court.

[source:TheHindu]

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