B L Saraf
August and September , two months of 2019 A.D, witnessed two constitutional developments of far reaching consequences. One has the origin in Indian Parliament, brought about on the prompting of Government and other was the outcome of Queen’s action of prorogation of the British Parliament, initiated on the advice of British Prime Minister, Boris Johnson. Both were epochal in some sense. However, the Queens’s one stands reversed, thanks to the British courts: while as that of the Indian Parliament awaits decision of the Supreme Court which is seized of the matter.
In Britain, three years before voters chose to leave the European Union -EU. Three years down the line they have yet to decide how to come out. Britain has yet to make the exit, but its two Prime Ministers – David Cameron and Theresa May have already exited, in the process. The third one-the incumbent Boris Johnson is in line to bow out. The basic Brexit issue remains unresolved. For Boris Johnson it will be real tragedy to go out as failure to deliver on what was architected by him. Whereas British have made their choice known: i.e to come out of the EU but they are yet to decide how to come out. Indeed, Britain faces unprecedented uncertainty.
Failing to carry it with him, PM Johnson advised Queen to prorogue Parliament from 9th September to 14th October, so that arrangement of leaving EU could be made. Acting upon his advice the Privy Council ordered prorogation of the Parliament. As referred above, this order was challenged before the Supreme Court. All the 11 judges of British SC unanimously quashed the order of Privy Council as being ” unlawful void and of no effect.” The outcome that the “Parliament is not prorogued.” While quashing the order Court ruled that “the extreme effect on the fundamentals of our democracy cannot go unchallenged.” There is view that British SC spotted traces of the ‘ Basic Structure ‘theory, enunciated by our SC in Kashvanand Bharti’s case, in the matter before it and obliquely applied it to upturn the Queen’s action.
It is not the humongous nature of the two constitutional exercises that combines both for a common discussion but the promptitude of British Courts shown in disposal and conciseness of its decision that compels a comparative comment on the positions taken by two different governments ,situated in two different Continents. The Order of Privy Council went through the scrutiny of three British courts , and final decision came from the SC. It took them just 27 days to come to the deliver decision mentioned herein before. Matter requires to be taken note of because, for variety of reasons, it is unthinkable to expect such promptitude from our Courts in disposing matters pending before them.
The Constitutional Bench of the Supreme Court has commenced hearing of the petitions filed to challenge the Constitutional order and the JK Reorganization Act 2019 which materially changed the constitutional and geographic character of the state. Historical settings too stand altered.
Legal experts of some eminence have flagged quite a number of issues in the 5th August Constitutional developments which call for judicial scrutiny. They are ; the modification of Art 367 in so far as it applies to J & K fictionalizes the reference to ” the legislative Assembly of J&K as used in Article 370 to mean the governor of the state and reference to the ‘ Constituent Assembly ” used in the Article 370 to mean ‘Legislative assembly of the state . That, according to the observers, combines in a governor the role of legislature and also of the role of Constituent Assembly. This was ostensibly done to pave way for the Statutory Notification that resulted in the recommendations to dilute the critical caveats Of Article 370.
Then it is said that Presidential order is a colorable exercise of power. In as much it vests in an unelected body -in this case governor – a huge constituent power which in essence strikes a big blow to the federal character of the Constitution. SR Bommie case is referred to make the point. They say federalism is the basic structure of our constitution. Indian Constitution holds out some guarantees which are sacrosanct in nature. They can’t be disregarded to achieve a so called noble end.
Some raise the point that Art 370 cannot be used to amendment itself. Serious challenge to the Constitutionalism is found in both the cases.
It is not our purpose to make a comment on the merits of the case. That will be done by the Apex Court which is seized of the matter. These points are noticed only to evaluate the seriousness of the matter which look to be of equal importance as were before the British Supreme Court. We look forward to the Hon’ble Court to favor the nation by a prompt disposal of the case, as said, leaving nature of the adjudication to its better wisdom .
(The author is former Principal District & Sessions Judge)
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