Lessons for India from a UK court verdict

The PM’s advice to the President has to be in the public domain as it represents the exercise of constitutional power.

 |  4-minute read |   01-10-2019
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In the past few weeks, UK Prime Minister Boris Johnson made two significant blunders. The first is his belief that he was Prime Minister material and could take Britain out of the European Union unscathed.

The second is that he could suspend Britain’s parliamentary democracy by asking the Queen to prorogue Parliament till mid-October, so he could shake off discussion in Parliament, to whom his government is responsible.

Boris’ hubris

Unlike Queen Victoria, Queen Elizabeth II is politically neutral, even if she may not like a PM, their politics or their unreasonable requests to use her prerogative powers to summon, prorogue or dissolve Parliament.

Of course, this was not always the case. From the Middle Ages (1066 CE to be precise), the English kings claimed both personal and political prerogatives to do whatever they liked and claim massive immunities.

Prerogative comes from praerogo — something demanded in preference to all. In the 17th century, the use of the prerogative to make levies and laws independent of Parliament led to Charles I’s head being lopped off in l649. By the 19th century, it was thought that in politico-legal matters, the ruler could listen, encourage and warn (known as the Bagehot formula).

But when Elizabeth II assumed the throne, even this was diminished. Prime Ministers claimed to bindingly advise the Queen to use her prerogative in foreign relations, domestic matters, parliamentary matters and matters on which Parliament had not passed any law. The question was whether the courts were helpless to examine what was being done in the Queen’s name and under her imprimatur on the advice of the Prime Minister.

boris-690_100119113210.jpgThe Queen has come out unscathed. It is PM Johnson’s unconstitutional advice that was faulty. (Photo: Reuters)

In 1920, courts ruled that prerogative power could not deny compensation for possession. In l977, the ebullient Lord Denning in Laker Airway Ltd v Department of Trade felt that prerogative power could be examined for relevance by judicial review. In yet another case, concerning materials for the Northumbria Police, Court of Appeal was equivocal. The tide turned in a Government Communications case (l996) where three out of five judges were prepared to go further. But in what matters would they interfere?

After PM Johnson’s request and discussion with Conservative Party Privy Counsellors, on August 28, 2019, the Queen prorogued Parliament from September 9 to October 14. Johnson did not want the irritation of an elected House of Commons to whom his government is responsible to discuss Brexit until it was too late, given the October 31 deadline. Effectively, Parliament was gagged by its own PM. England’s Supreme Court saw the notings of Johnson that there was “nothing shocking about this prorogation”. On September 13, the Scottish courts said courts could examine this issue. English courts differed with the Scottish and denied the courts this role.

Misguided Queen

An 11-judge bench of the UK Supreme Court heard the matter over three days to say the issue was justiciable and that PM Johnson’s advice to the Queen to prorogue Parliament was unconstitutional because it prevented Parliament from fulfilling its constitutional duty. All this in 74 paragraphs over 24 pages in record time to confront an urgent crisis. Earlier, British judges had blocked the use of the prerogative where it violated a statute or took property without law.

This new judgment says the prerogative cannot interfere with the effective working of a democratic institution like Parliament to which the Cabinet was responsible and answerable to the people it represents. I would go as far as saying that the prerogative cannot alter the basic structure of Constitution — an over-expansive Indian idea. Maybe its day will come.

The Queen came out unscathed. It is PM Johnson’s unconstitutional advice that was faulty. Before we get over-enthused, this decision does not mean judicial review over matters of foreign policy, declarations, appointments of ambassadors, questions of policy, Brexit and the myriads of even silly advice given to Her Majesty. There, politics will remain supreme and unassailable. But this judgment is a start to weed out arbitrariness.

Takeaways for India

This UK Supreme Court’s decision is an example of judicial courage. We do not have a prerogative in the same sense as Britain. But there are areas of concern. The Bommai verdict (l993) paved the way for judicial examination of President’s Rule. The Supreme Court’s interference in Karnataka’s No-Confidence Motion has much to answer.

The second area of importance is the issuing of ordinances on the excuse that Parliament is not in session. In the Wadhwa decision (l985), Justice Bhagwati deprecated re-issuing of ordinances. In most, if not all cases, there is no emergent need. Courts should examine this as revealed by ‘advice’ papers. Erstwhile President APJ Abdul Kalam’s return of proposals shows a discerning mind. This is rare.

Third, the very concept of non-legislatively authorised power needs review. The Prime Minister’s advice to the President has to be transparently public property in the public domain as it represents the exercise of constitutional power. All constitutional powers must suffer scrutiny to safeguard democracy and the rule of law.

(Courtesy of Mail Today)

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Writer

Rajeev Dhavan Rajeev Dhavan

Supreme Court lawyer.

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