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TEMPERING VIGILANCE WITH RESTRAINT

THE SUPREME COURT'S strong words on the possibility of a fraud on the Constitution in the appointment of Mr. Shibu Soren as Chief Minister of Jharkhand and its direction to advance the floor test to determine his support in the Assembly represent a political setback to the United Progressive Alliance, which has left the Bharatiya Janata Party elated. It was not just that the National Democratic Alliance was within striking distance of a majority, with 36 MLAs of its own against the UPA's 26. Its publicly displayed support of 41 legislators in a House of 81 demonstrated to the nation that the Governor, Syed Sibtey Razi's appointment of Mr. Soren was indefensible. On the other hand, neither the UPA nor the Governor could offer a convincing reason publicly for the choice. In the circumstances, it could be argued with justification that the one month's time given to him originally — it was cut short after the Governor's meeting with the President — to demonstrate his majority support was just to enable him to convert his initial losing position into a majority through pressure and blandishments. Whatever the outcome of the composite floor test in the Assembly, the UPA would seem to have lost out in this round before national public opinion as not quite adhering to fairness and constitutional values.

Beyond the political fall-out are the larger questions touching on institutional relations among the judiciary, the executive, and the legislature. Under the scheme of things, neither the executive nor the legislature can claim supremacy even in their own spheres because it is the Constitution that is supreme. One of the judiciary's functions is to ensure that they stay within the bounds of the Constitution, and it is because of their large-scale violation of the rules that the courts have come to play so large a role in what should legitimately be political questions. Political leaders and parliamentarians are understandably agitated when the judiciary intrudes into the political space, but the issue of the default of the executive and the legislature needs to be addressed side by side with any discussion of the overarching power the judiciary is assuming for itself. In the case of Jharkhand, the Governor's actions were not such as to reinforce confidence that he would be a fair and neutral umpire. In a situation of such desperation and bitterness, when all scruples seem to have been abandoned, there was legitimate doubt whether the voting in the Assembly would be orderly and fair. Some measure of judicial oversight became necessary over both the Governor's actions and the voting in the Assembly if public confidence in democratic institutions and their legitimacy was to be preserved.

The question remains though whether the Supreme Court should have made such strong comments suggesting possible fraud by the Governor at this stage of the hearing; and whether it should have advanced the date of the vote and gone into such minute details of the voting procedure within the Assembly. This is not the first time an order directing a composite floor test has been made — the apex court passed an almost identical order in very different circumstances in 1998, when the Kalyan Singh Ministry had been dismissed and its majority needed to be tested in the Uttar Pradesh Assembly. The procedure the court has laid down may look like a fair and efficient way of testing which of the two contending parties has a majority, but it is not the method of the Assembly's choosing and departs from its usual practice. This raises a troubling question: how much of Article 208, which allows State legislatures to frame rules of procedure for the conduct of business within the House, will remain after such a judicial order is passed? The Supreme Court's decision on the Jharkhand vote will no doubt ensure a fair and orderly resolution of the contentious issue, but it is not without some disquieting implications for relations among the constitutional institutions of the judiciary, the executive, and the legislature.

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