"In the light of what may await the nation after the upcoming Lok Sabha elections, the Supreme Court's direction for the 'Big Two' national parties, namely, the BJP and the Congress, to revert if they could/would join hands to form a government in Delhi State, assumes greater significance and immediate relevance. The court has since given both parties two weeks' time to come back with their views. However, the chances of their seeking more time until after the last round of parliamentary polls are over, lest any decision on their part should confuse their cadres, supporters and sympathisers alike, cannot be ruled out.
The Supreme Court's suggestion, made by a Bench comprising Justices R M Lodha and Kurian Jospeph, followed outgoing Chief Minister and AAP leader Arvind Kejriwal's petition, challenging the imposition of President's rule in the State after he had quit after being in power 49 days. In line with the historic Supreme Court judgment in the 'S R Bommai case' (1994), the imposition of President's rule needed to be ratified by the judiciary, pending which the State legislature had to be kept in suspended animation - and, not dissolved, as used to be the case earlier. Incidentally, Justice Lodha is next in the order of seniority when Chief Justice P Sathasivam retires on 26 April.
Speculation is rife about the state of things to come at the national-level post-poll. Should it lead to a 'hung Parliament', as has often been predicted by pollsters and politicians alike, and should a deadlock ensue, would the 'Big Two', namely, consider the possibility now proposed by the highest judiciary for Delhi State? If they were to revert to the court in between with an 'yes' for an answer in Delhi, would they consider extending the same to the national scene, as well?
As much as in their answer to the court query, the nation would be interested in the terms of any such agreement even in the case of the Delhi State. The Congress, for instance, had begun with extending 'unconditional support' to AAP, but converted it into 'issue-based support' en route without the other possibly not halting to understand and assimilate the difference between the two, and act accordingly. Or, did the AAP want it this way, and it was the Congress that had played into its hand?
Imaginative extension
The question also arises, if in the absence of an affirmative answer from either of the two national parties, or both, in the 'Delhi case', what options would the Supreme Court have in the matter? Can the judges direct the two parties to consider forming a government together in Delhi? It is not the kind of advice, leave alone direction, that the courts, including the topmost one in the country, is normally used or expected to give in the course of the legal and judicial process that they are generally habituated to engage in.
Courts in the country, particularly in the past, had taken judicial initiatives of the kind to lay down the law of the land, where either the laws, including the Constitution, are subject to multiple interpretations, or silent, or had either been wantonly or otherwise mis-interpreted, misused and/or abused at times, starting with the 'State'. But can such a course as has been successfully and usefully adopted in empowering such other independent institutions as the Election Commissions, the CVC and the CAG, be extended to cover what is essentially the 'political duty' of the incumbent to a gubernatorial office under the Constitution?
For the 'Delhi President's rule case', the Supreme Court's direction in the 'Bommai case' should hold good. In the case, pertaining to Karnataka, where sacked Chief Minister, the late S R Bommai, contested the imposition of President's rule and accompanying dissolution of the State Assembly, the judges laid down that the 'majority of a government' could be tested/proved only in the legislature, and not on the lawns of the Raj Bhavan.
Considering that the verdict came about years after the actual sacking of the Bommai Government, and also the fact fresh elections had been conducted to the Karnataka Assembly afterward, the Bench ordered that in all future cases of the kind, the Supreme Court would have to confirm the imposition of President's rule. Pending the confirmation, the State Assembly would be held in suspended animation, with the facility/possibility to revive the same in case the Apex Court found no justification for the imposition of President's rule in the State.
Subsequently in the case of 'Nitish Kumar vs Buta Singh' (2006), the Supreme Court restored the sacked Bihar Chief Minister to office, indicting the Governor of the day, reviving the State Assembly that had been kept in suspended animation, in terms of the 'Bommai case' verdict. In context, the present initiative of the Supreme Court may be an 'imaginative extension' - may be timely (?) -- of the 'Bommai case' order on keeping the Assembly in 'suspended animation'.
In this case, the court's query pertains exclusively to holding the Delhi State Assembly in 'suspended animation' - this too an equally imaginative extension of the 'Bommai case' verdict, which focussed mainly on sacked Chief Ministers. Kejriwal has moved the court, demanding the dissolution of the Assembly and fresh polls.
Under the law laid down in the 'Bommai case', the Lt-Governor cannot dissolve the State Assembly until the Supreme Court had disposed of the present case. Media reports have now quoted Kerjiwal's lawyer as telling the Supreme Court Bench that the Lt Governor could be asked to review his decision - which incidentally need not be his objective decision, in the light of the 'Bommai case' verdict.
Arrogating gubernatorial authority?
The letter and spirit of the Constitution mandates that institutions and instruments of the State, starting with political hierarchies, should not ordinarily interfere with the inherent right, responsibility and authority of the legislature in the matter. As the interpreter and watch-dog of the Constitution, the Supreme Court has both inherent and codified powers that go beyond the ordinary.
The relatively early creation of the 'Basic Structure' concept in the 'Kesavananda Bharti case' as far back s 1973, less than 25 years after the Republic came into being, should be a case in point. Earlier, on such sensitive issues as the 'Madras State reservations' issue and 'preventive detention', again pertaining to Madras State, the Apex Court had constructively interpreted the Constitution, whose possibilities the Founding Fathers had not foreseen.
The question would now arise if the court's current direction for the BJP and the Congress to revert with their views on forming an alternate government in Delhi, amount to the judiciary arrogating to itself the authority otherwise inherently resting in the office of the Lt-Governor in this case, but otherwise that of a State Governor.
The current political/electoral scene is not without possibilities, though. The court having held in 1971 (U N R Rao vs Indira Gandhi) that there has to be a Council of Ministers to 'aid and advice' the President in the conduct of government business, and the Forty-Second Amendment having incorporated the same in the Constitution, post-poll now, a situation should not arise where a new government becomes impossible, going by the numbers.
Global necessity, too
In the past, after every election and every change of government, the Governor would invite legislative group leaders, in the order of their higher numbers, to ask if they would want and would be able to form a government. After the 'Bommai case' verdict, Governors would also ask such legislative party leaders to prove their majority on the floor of the House, within a stipulated period.
The court's initiative now raises political questions in the context of the Delhi situation. The Congress, coming third in last year's Assembly elections, having extended support to the Aam Adhmi Party (AAP), which had come second without acquiring an absolute majority, did not withdraw support to the Kerjiwal Government, as often used to be the case. Here, the Chief Minister submitted the resignation of his Government to Lt-Governor Najeeb Jung over a policy issue pertaining to 'Jan Lokpal', the party's pet pre-poll promise to Delhi voters.
Taken to its logical conclusion, and answer from the 'Big Two' in Indian politics have the potential for post-poll future. If they were to say 'yes' to the court's suggestion, even if half-heartedly, then they would have made a beginning in re-arranging the nation's political landscape in ways that none, starting with themselves, is prepared for. Even if they were to leave it to the highest court of the land to decide and the court too were to propose a 'coalition government' between the two in Delhi, it would/could be a revolutionary precedent - whether or not, it became a success, too.
(The writer is a Senior Fellow at Observer Research Foundation, Chennai Chapter)
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