Why Supreme Court's stand in Uttarakhand crisis is baffling
It raises serious questions about the ability of judges of our lower courts in handling constitutional crisis.
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The Supreme Court on April 22 stayed the Uttarakhand High Court order of April 21 revoking President's Rule in the state till April 27. Just the day before, almost after a month-long hearing, the High Court bench that included a chief justice had quashed the Centre's rule upholding the disqualification of nine Congress MLAs and directed former chief minister Harish Rawat to prove majority on the floor of the Assembly on April 29.
The High Court, in its hearing, made scathing remarks about the Union government's handling of the situation:
"Even the President can go wrong" in taking such decisions based on inputs of executive.
“There was no material. We are shocked at that decision-making at the highest level, involving the Cabinet and President… It was a blatant falsehood."
"Absolute power can spoil anybody's mind".
Within a day, Supreme Court stayed the order and made scathing remarks against the High Court:
“What has been happening is a very serious and grievous matter for any state…you don’t revoke President’s rule just like that. Everything has to be looked into…a balance has to be struck.”
“If I were the High Court judge, I would have made my judgment operational only after three or four days when it is signed and ready. It is more on propriety than legality. Governance of a state cannot be left in the lurch.”Former Uttarakhand CM Harish Rawat at a press briefing.
The developments over the past couple of days have left the layperson baffled. What's happening in our country? The highest court is staying the order of the second highest court given by the judge at the highest level of the court. The Supreme Court, by making the above observations, is also hinting that high courts of the country are not capable of dealing with the complex issue. If that's the case, it should pass strictures that such matters can be heard only by the Constitution bench of Supreme Court. If the court was not happy with the way things were being handled by the high court, it should have intervened in the matter suo motto.
This raises bigger concerns about the process of appeal in our country. Each and every judgement of the lower courts has the potential to go through an appeal process and this ensures it takes years for the final order.
The court also made reference to the propriety of the high court judge's action of not providing the final judgement copy. There is no rule to provide the final judgement copy on the same day, this is indeed a lacuna.
If the Supreme Court is concerned about this then it should pass an order to the lower courts to the effect. One line of argument is how can a person file an appeal if he doesn't have the final copy of the order and on what basis? This was sufficient ground to reject the appeal by central government. After all, the order given was not in haste. The high court discussed the matter for close to a month before delivering its final judgement.
The court's reference to governance cannot be left in the lurch is also intriguing. How does this order help the governance of the state? In fact it creates a lot of confusion and adds to the chaotic situation the state is facing for the past one month as shown in the table below.
This is not the only incidence where courts have given flip-flop orders. On March 29, a single-member bench of Uttarakhand High Court had ordered a floor test to be conducted on March 31 without staying the President's Rule based on a plea filed by Harish Rawat. It was hotly debated as to how floor test can happen parallelly with a central rule in the state. The very next day on March 30, a two-member division bench comprising the chief justice stayed the floor test order of the single-member bench.
With the matter in Supreme Court, two things can happen now. Either the Supreme Court allows the state to contiue to be under the President's Rule or agrees with the high court order that the central rule should be quashed. The list of chief ministers of the state would show the following trend in both the cases:
Looking at the above table, does it seem like the Supreme Court order has helped governance? People could argue that we should not question court judgements, but what about our freedom of expression?
If Supreme Court overturns the high court order, it would raise serious questions about the ability of judges of our lower courts in handling matters of constitutional crisis. This brings us to the bigger issue of training of judges and the evolution of an appraisal process, which includes metrics such as orders overturned by higher courts to the total orders issued by the respective judge.
While the judiciary is considered to be the saviour of this country due to activism witnessed in recent years, a lot more trasparency needs to be built into the entire machinery. It needs serious overahaul of its organisation to smoothen the judicial process and deliver quality judgement within a reasonable time frame, which stands the test of all courts in the country.
A similar situation prevailed during the Arunachal crisis - one court overturned another court's order and so on. It is clear that even after the Bommai case and Sarkaria Commission recommendations, the application of President's Rule and its juducial review are very hazy and unclear as witnessed in the Arunachal as well as Uttarakhand crises.
The Supreme Court needs to take a serious look at the current lacunae in the system like the Parliament approval within two months when a government is in minority in the Upper House.
We all look up to you as one of the three pillars of our democracy. However, incidents like this do leave the common man confused about justice. Here you can't blame the police/investigating agencies, its just an application of law.