There are two events that have been a matter of great concern over the past few months. One of them is in the realm of jurisprudence relating to public property and the other relates to the bizarre political drama and the intervention of the Supreme Court in the unforeseen developments in the context of formation of Government in Karnataka.
There has been a tendency amongst persons in power to provide perquisites for themselves out of public funds. The system (either through the executive instructions or through law) permits a special treatment to some Chief Ministers regarding accommodation and staffs, etc., when they have already demitted office.The principle that was almost accepted could be better put by the following statement: “All men are equal, but some are more equal than others.”
In the first week of May 2018, the Supreme Court struck down a law of the Uttar Pradesh, permitting provision of free house and staff to the Chief Minister even after he ceases to hold office and these facilities were also run for life. A Bench of Justices Ranjan Gogoi and R Banumathi held that such a provision of law would be against the principles of equality and is based on no intelligible criteria to provide the foundation of a valid “classification”. Interestingly, the Government of Adityanath Yogi, speaking in this case, for the Government of Uttar Pradesh, stated, “Former Chief Ministers were a class by themselves.”
This proposition was repelled by the Supreme Court in the case of lok Prahari.
The court said, “A special class of citizens is abhorrent to the Constitutional ethos.” There are States which do not have such a facility given to the former Chief Ministers, the most important being Tamil Nadu. The provision by the Central Government for housing for former Presidents, Vice-Presidents and PMs could now be questioned.
Though this judgment admits of security and related perceptions, it does not fully accept the facility to go to the extent of free housing and free staffing for life. The Supreme Court had, in an earlier litigation relating to government housing in Delhi, not found fault with allocation of houses for former Presidents and others. Attempts of a renewed challenge are likely to be made in view of the latest judgment. This apprehension is reasonable.
The judgment inter alia states: “Natural resources, public lands and public goods like government bungalows/official residence are public property that belongs to the people of the country.
The doctrine of equality, which emerges from the concepts of justice and fairness, must guide the State in the distribution/allocation of the same.” The court further went on to observe, “The Chief Minister, once he/she demits the office, is on a par with the common citizen though by virtue of the office held, he/she may be entitled to security and other protocols.
Allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the Constitutional principle of equality.” The court further said, “Bungalows constitute public property, which by itself is scarce and meant for use of current holders of public offices.”
The court still further observed that it was necessary that public servants must act in a manner which reflected that “ultimate authority is vested in the citizens” and they were eventually accountable to the people. The petitioner had challenged the Constitutional validity of the Uttar Pradesh Ministers (Salaries and Allowances and Miscellaneous Provisions) Amendment Act of 2016 and the Allotment of Houses under Control of the Estate Department of 2016.
The other matter of concern, over the last month, has been the manner in which the high Constitutional functionaries have dealt with their sacred public duties over the formation of Government in Karnataka.
There have been two views expressed by the Supreme Court without unnecessary overruling the earlier one. The first is regarding the single-majority party (not necessarily enjoying absolute majority) has a right of precedence to be called upon to prove its majority on the floor of the House.
The second is regarding an arrangement made post-electoral result and the feasibility of a stable Government to be provided by an alternate group of legislators as permissible under the Constitution. Without going into the fine aspects that should go into formation of “opinion” by the Governor, it is elementary to say that there must be prima facie material so as to satisfy the Governor that a stable Government could be formed in conformity with the provisions of the Constitution. Subsequent events of midnight episodes in the Supreme Court have brought forth the fact that there was hardly any material before the Governor so as to cause a satisfaction in law regarding feasible stability of the gGovernment in a hung Assembly.
The Supreme Court displayed its exceptional ability to rise to the occasion; and in the early hours of morning before the swearing-in, the court inter alia passed orders of a historic character to ensure that democracy is not derailed by human design. were available.
The restraints placed by the Supreme Court on the Chief Minister-designate of Karnataka (Yedyurappa) appear to be ingenuous and appropriately anticipate the game of horse-trading that was to ensue.
The figures that have been quoted as rates adopted in horse-trading have excelled the hitherto quoted figures. Money power and mining power have been combined requiring the grassroots of politics to be given a dose of antibiotics by the judiciary and, that too, at highest level. In this domain of jurisprudence, when enormous power is exercised at the personal discretion of the Governor, unaided by any advice of the Council of Ministers, the process of decision-making can also be subject to judicial review if it violates the norms of the Constitutional validity.
The principles of law enunciated in this regard by lord Denning in several judgments (including Padfield) permit sufficient judicial review both in terms of illegality, fatal procedural infirmity irrationality and malafide exercise of power. We must thank ourselves our system and our judicial system that we are saved from the catastrophy of events like what unfolded in Karnataka.
It is for the youth power, who are largest in number amongst the voters, to understand the level of lack of principles and morality in public power/ life which we are following.
Power can corrupt as experience has taught us. The situation has been saved with the active concern of one and all. It is time to save our “institutions” from being debased and demoralised. It is our sacred duty to protect the democratic fabric; and we can then be proud of being the largest democracy in the world.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)