GS-2, Indian Polity, Public Admin 2, Uncategorized

A test for judicial review in India

Context

  • The United Kingdom Supreme Court in its judgment has decided that the prorogation of parliament by the Queen of England, acting on the advice of the Privy Council, was unlawful on the grounds of parliamentary sovereignty and democratic accountability.
  • By doing so, the U.K. Supreme Court asserted its majesty in the constitutional framework and functioned as the true guard.

Similar instances in India

  • There have been at least two key executive actions in 2019 that have undermined parliamentary processes: Reservation for Economically Weaker Sections and the Bills passed around Jammu and Kashmir (J&K).
  • The Constitutional (One Hundred and Third) Amendment Act 2019 providing reservation for Economically Weaker Sections was brought for consideration of Parliament in less than 48 hours from the time the decision was taken by the Centre. By doing so, the government ensured that there was insufficient time for Parliament scrutiny.

Violation of rules

  • The Monsoon Session of Parliament was originally scheduled to end on July 26 but was extended to August 7 by the government.
    • On August 5, the Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 was suddenly introduced to the ‘Parliamentary List of Business’.
    • When the Rajya Sabha convened, Home Minister Amit Shah, moved the Statutory Resolution proposing to nullify all clauses in Article 370 apart from Clause (1). Copies of the Bill and the Resolution were not provided to MPs until it was presented by the Home Minister.
  • The conventional practice is that legislative documents are provided at least a few days before they are tabled. This is done for the MPs to understand the contents of the legislation, seek views and formulate their positions better.
  • The manner in which both these Bills were introduced in Parliament was also in direct violation of the Rules of Procedure and Conduct of Business.
    • In Rajya Sabha, specifically, Rule 69 talks about ‘Motions after Introduction of Bills’ and ‘Scope of Debate’.
    • According to the proviso of Rule 69, there is discretion given to the Chairman in exceptional situations.
    • But, every discretionary power does require that the Chairman must exercise it judiciously and with proper application of mind.
    • There has been no cogent or detailed explanation given by those presiding our Houses of Parliament as to why the government has been allowed to flout parliamentary rules and convention on more than one occasion.

Issue Area

  • Such actions of the government in Britain and India have revealed a complete disregard for established parliamentary processes. This has placed democratic institutions in the peril of being weakened.

Lessons for India

  • The principle of judicial duty stands reiterated: “… the courts have the responsibility of upholding the values and principles of our constitution and making them effective: And it is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits.”
  • In habeas corpus writ petitions challenging the detentions of political leaders and others in Kashmir, the Supreme Court refused to examine the legality of the matter immediately.
    • On the constitutional questions that have been raised by the abrogation of Jammu and Kashmir’s special status, the court does not seem to think this is a matter urgent enough for a swift hearing. It has scheduled a hearing for October.
    • Regardless of the merits of the petitions, the Court did not show much sense of urgency in dealing with them.
    • A Court conscious of its constitutional duties would have given a decision either ways, at least in the habeas corpus petitions, by now. The approach of the Supreme Court in these matters has unfortunately been evasive
  • Another remarkable feature of the UK Courts’ hearing was its openness and transparency.
    • The hearings were completely live streamed. The written submissions of the parties were uploaded in the website.
    • Also, important updates about the case were announced through the official twitter handle of the UK Supreme Court.
    • This is a significant gesture underlining the democratic nature of the Court. It sends out a warm signal that the Court is not an elitist or exclusivist institution which shuns public participation. Encourage public engagement with judicial process makes it more meaningful.
    • In India, the Supreme Court had given green signal for live streaming of court proceedings in its September 2018 decision. Live-streaming of court proceedings will effectuate the “public right to know” and bring in more transparency in judicial proceedings, the court said. Even after a year, the decision has not seen implementation.

Conclusion

  • As the highest constitutional court, the Supreme Court has the discretion to decide what matter needs its urgent attention.
  • But this discretion must be exercised with public good as the driving force. In this, the UK court has set an example that the Indian judiciary would do well to emulate.

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