The BJP has only itself to blame for the Uttarakhand fiasco, where Harish Rawat is expected to have won the Supreme Court-monitored trust vote.

While the political loss of face will be forgotten in weeks, the damage done to the more fundamental cause of restraining and rolling back judicial over-reach is incalculable. In this particular case, the Supreme Court has not actually transgressed (yet) into the legislative domain, but having gotten into the game of deciding whether Governors and Speakers and legislators are doing the right thing, effectively the political class has given the judiciary the right to muscle into these areas.

In the Uttarakhand case, the Supreme Court has allowed the Speaker’s decision to disqualify nine Congress MLAs to remain, but tomorrow it could well question the Speaker’s actions in other cases, and legislative votes can end up being decided not within its domain, but in courts. This can be seriously debilitating and unconstitutional – but if the executive and legislature keep ceding space to courts by political stupidity – the courts will be happy to take their powers over.

The story of the executive, legislature and judiciary is similar to the fable of the cats and the money. Two cats are fighting over a cake, and the monkey comes in to mediate, and, by pretending to cut the cake equally, ends up eating the whole cake. The moral: if you can’t sort out your differences yourself, someone else will get into the picture and eat your cake.

In the Uttarakhand and many other contentious issues, the visceral hate political parties have for each other (not just BJP versus Congress, but similar personal hatred between DMK and ADMK, TMC and Left, SP and BSP) ensures that neither executive nor legislature is able to protect itself from judicial encroachment. Even on the issues of judges appointing themselves, the BJP and Congress are unable to come together to protect a law passed nearly unanimously by parliament and 20 states. The monkey is daring the cats to come and get their crumbs of cake, but the cats are still fighting.

In the Uttarakhand case, the State High Court has already overturned a presidential proclamation. That’s one constitutional authority humbled. In the Arunachal case, the High Court almost sent a notice to the Governor – an unconstitutional act averted only at the last minute by wiser counsel. But the Governor’s actions now seem vulnerable to judicial oversight and intervention. Another constitutional authority is now under court lens.

The Supreme Court, while upholding the Uttarakhand Assembly Speaker’s decision to disqualify nine Congress MLAs from voting, effectively told the Speaker how to conduct the trust vote yesterday (10 May). The Assembly may have decided who stays or goes as chief minister, but the announcement will come from the Supreme Court. The constitutional post of Speaker is now much diminished.

To be sure, there is a technical issue still to be decided by courts. The BJP says the Speaker wrongly declared the budget passed without a proper division. If the nine Congress dissidents had voted against the budget, the government would have fallen, and the disqualification by the Speaker would have come later. The Governor could have called a new leader to form a government and seek the trust vote, changing the political dynamics. But the Speaker declared the budget passed, and also disqualified dissidents from voting for defying the party whip. This was the chicken-or-egg question the Supreme Court had to decide, and not the Speaker’s authority. Now, with Congress and BJP remaining at daggers drawn, the courts have gotten into the act.

If the Congress and BJP cannot trust themselves even on issues fundamental to the constitution – like preserving the powers of the executive and legislature, and the supremacy of the Speaker in the legislature – why would the courts not start believing that they have a divine right to get into every domain, even if the constitution says something else? Apart from appointing itself, the judiciary now decides whether diesel cars can be registered, what levies to impose for pollution, what ads issued by governments can contain, and so on. Now it is directly poised to encroach into the domain of the legislature.

The Supreme Court’s constitutional coup could end up becoming an established fact.

It is time for the country’s two major political parties to come to an understanding on constitutional fundamentals – which is the separation and balance of powers. They don’t need to bury all their political hatchets to arrive at this conclusion, but surely they can agree that the courts should be asked to get off their turfs?

The BJP-Congress vitriol should be restricted to politics and policy, not to areas on which both agree – the powers of the executive and the legislature to make laws, and restricting the judiciary to interpreting them for constitutionality and legality.

The cats should come to an agreement among themselves on core constitutional principles that both will fight together or risk losing out to the monkey.

Separation Of Power

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