Advocate KV Dhananjay argues that a recent decision of the Karnataka high court in one of his cases amounts to a rewriting of the Constitution of India, which is without parallel or precedent in the constitutional history of India, with not even the 1993 Judge’s decision of the Supreme Court coming close.
First and foremost, this is a case that I had argued for at the High Court of Karnataka. I clearly lost this case. So, I invite the reader to keep the ‘sour grape’ factor in mind at each and every turn. Having said so much, let’s begin.
This is a very simple constitutional case and has attracted massive public attention in Karnataka.
The theme of this case:
The then Hon’ble Governor of Karnataka, HR Bharadwaj had knowingly and deliberately defied the authority of the Hon’ble President of India. However, when his actions were challenged in a court, in a judgment without any precedent, the Hon’ble High Court of Karnataka has rewritten a constitutional provision and has validated the said defiant act of the Governor.
Brief statement of the law:
Article 317(1) of the Constitution states that only the President of India could remove any member of a Public Service Commission (PSC) on ground of ‘misbehaviour’ and that too, only after he first makes a reference to the Supreme Court of India for its opinion on whether to remove that person on the ground of his alleged ‘misbehaviour’ and the Supreme Court next reports that the President could remove that member for his ‘misbehaviour’.
Article 317(2) next says that a Governor of a State may however, suspend a member of a State Public Service Commission (SPSC) only after the President had first made a reference to the Supreme Court – such an order of suspension would be valid until the President finally passes an order after receipt of opinion from the Supreme Court. Watch out next for how a Governor of a State went on to defy the authority of the President of India.
The fact not in dispute – plain and simple:
In the case of a member of the Karnataka State Public Service Commission, Dr Mangala Sridhar who was incidentally identified with a political party that is a rival to that which is currently in administration in Karnataka, the then Governor of Karnataka, HR Bharadwaj went on to suspend her from Karnataka PSC even when he clearly knew that the President of India had never made any reference to the Supreme Court in respect of her alleged ‘misbehavior’ - surprisingly, just two days before the results were declared with respect to the elections to the Lok Sabha.
The Governor had, in inexplicable haste, suspended her on 14 May 2014 while election results were due to be announced on 16 May 2014.
Constitutional status of Public Service Commission members:
Public Service Commissions are accorded a constitutional status under Article 315 of the Constitution of India.
Article 316 speaks of the mode of appointment of members and chairman to these commissions. Article 317 speaks of removal and suspension of such members. Your attention is first invited to Article 317. Read it carefully the first time and read it again after that:
317. Removal and suspension of a member of a Public Service Commission:
(1) Subject to the provisions of clause (3), the Chairman or any other member of a Public Service Commission shall only be removed from his office by order of the President on the ground of misbehavior after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under Article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed.
(emphasis supplied)
(please also read the bold portion only, on second reading)
As you just read in the above, the President of India alone could remove a member of a Public Service Commission (PSC) on the ground of ‘misbehaviour’ and that too, only after the Supreme Court has opined, on a reference made to it by the President that the member facing the allegation of ‘misbehaviour’ could be removed for such ‘misbehaviour’.
Essentially, this means that no less than the Supreme Court of India would itself conduct an enquiry and hearing over the alleged misbehaviour of a member of the PSC and express its opinion to the President and it is only after the receipt of such an opinion that the President could remove the member in question on the ground of proven ‘misbehaviour’.
This, our Supreme Court, says, puts members of Public Service Commissions into greater protection than is conferred upon Judges of the Supreme Court, Judges of the High Courts, the Comptroller and Auditor General of India and the Chief Election Commissioner of India.
The interesting part:
Now comes the interesting part. I invite your careful attention to Article 317(2) of the Constitution. Read it carefully. It says:
(2) The President, in case of the Union Commission or a Joint Commission, and the Governor in the case of a State Commission, may suspend from office the Chairman or any other member of the Commission in respect of whom a reference has been made to the Supreme Court under clause (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference.
(emphasis supplied)
(please also read the bold portion only, on second reading)
In plain English, Article 317(2) says that the Governor of a State may suspend a member of his State PSC only after the President of India has already made a reference to the Supreme Court in respect of the alleged ‘misbehaviour’ of that PSC member […member of the Commission in respect of whom a reference has been made to the Supreme Court under clause (1)…].
Such an order of suspension passed by the Governor would be valid until the President passes a final order after he receives the opinion of the Supreme Court of India. You may see in both Articles 317(1) and 317(2) that there is nothing really to interpret at all as it is all in plain English and the words therein are capable of bearing one meaning only.
The task of interpretation arises only when words expressed in a statute are capable of bearing more than one meaning. The words in Article 317(2) do not and cannot bear more than one meaning.
The drama begins two days before the election result:
Just two days before the results were to be declared with respect to the elections to the Lok Sabha, the Governor proceeds to, in inexplicable haste, wrongly and unconstitutionally suspend Dr Mangala Sridhar, a Karnataka PSC member on 14 May 2014 while the election results were due to be announced on 16 May 2014.
The Governor fully knew that the President had never made any reference to the Supreme Court as mandated by Article 317(2).
First, the Governor went on to first pass a defiant internal order on the following terms:
“…After examination of this case, I order that on the basis of the result of investigation against her, a reference under Article 317 be made to the Supreme Court and she may be placed under suspension pending reference and orders passed by the Supreme Court…”
(emphasis supplied)
That is, the Hon’ble Governor of Karnataka had in fact decided that it is for him to decide on the making of a reference to the Supreme Court. It is a mystery as to what prompted the Governor of Karnataka to altogether express such contempt for the authority of the office of the President of India.
Finally, two days before the D-day, the Governor went on to suspend Dr Mangala Sridhar with full knowledge that the President had never made any reference to the Supreme Court with respect to her alleged ‘misbehaviour’. The said Notification dated 14 May 2014, in pertinent part, says:
“NOW, therefore, I, Hansraj Bharadwaj, Governor of Karnataka, in exercise of the powers vested in me under clause (2) of Article 317 of the Constitution of India do hereby suspend Dr Mangala Sridhar from office of the member of Karnataka Public Service Commission with immediate effect and until an order is passed by the Hon’ble President”.
(emphasis supplied)
Dr Mangala Sridhar approaches the High Court of Karnataka:
As one would expect in such an event, Dr Mangala Sridhar immediately thereafter approached the Hon’ble High Court of Karnataka. A learned Single Judge who heard this case recused himself at the very inception. Then, the Hon’ble Chief Justice allotted the matter to a different judge.
The Judgment – changing times means a judge must change the Constitution:
Finally, the judgment is out. I would say that the High Court has rewritten the Constitution of India by knocking off the role of both the President of India and of the Supreme Court of India from Article 317(2) of the Constitution and has validated the said defiant act of the Governor. That is, notwithstanding what Article 317(2) has in fact said, the High Court has considered changed times as an invitation to it to rewrite the Constitution for the present. This judgment is beginning to stoke substantial public and academic debate over judicial overreach.
And with great respect, I would say that the said judgment is very thoroughly wrong and got the whole law of ‘interpretation of a written constitution’ completely off the mark.
But before you go there, you might want to first read our written arguments, which are here.
Courts are not the final authority on the Constitution when they go beyond ‘interpretation’ and rewrite it the way they like it:
After you have read both, you are invited to read this representation that I made later to the President of India, Prime Minister, Union Law Minister and the Union DOPT Minister (State) asking them to take the defiant act of the Governor seriously enough to reject his recommendation and to put Dr Mangala Sridhar on a fast-track trial that she has been persistently asking for, to disprove the charges against her – the only KPSC member in recent decades to ask for a trial of her corruption charges.
Of course, I have reviewed the evidence against her and my view is that there is simply no prospect of her conviction and the only likely outcome of the said trial might be a monumental embarrassment to both the State Government and the State police.
Does one support corruption if one opposes a judicial rewriting of the Constitution in order to eradicate corruption?
Here’s my piece on ‘corruption within KPSC’ in the Deccan Chronicle some time earlier and my lament on the fact that nobody from the KPSC has ever been convicted yet on the ground of corruption.
Our written argument will show that I was in fact, calling for the conviction of my client should the charges against her be true.
The Parliament is likely to take notice of what just happened:
Several support groups have now come to the aid of Dr Mangala Sridhar and are in fact, sending out my aforesaid representation to the several members of the Parliament of India.
So, if this judgment is going to be seen as an affront to the authority of the Parliament of India by the Members of the Parliament, the continuing debate over judicial overreach is only going to intensify further.
The fact also that Dr Mangala Sridhar is a ‘scheduled tribe’ woman has simply worsened the anguish in her supporters as they tend to think that things might not have been so harsh to her if not for the fact that she was born as a ‘scheduled tribe’ girl. There is also a move by her supporters to specifically address the members of the Parliament who belong to the Scheduled Castes and Scheduled Tribes with a view to convey their anguish over what just happened.
Finally, the High Court got it completely wrong:
Finally, the High Court got it completely wrong when it said that increasing ‘corruption’ is a judicial invitation to remodel the Constitution to these ‘changing times’. Well, all that the High Court did have before it is a mere ‘perception of corruption’ and if a ‘bogey of corruption’ is all it takes for any person to re-read his powers under the constitution, this country is in for a very rough and wild time ahead.
A concluding shocker:
Let’s have one here as well. Article 361 of the Constitution grants immunity to a Governor from arrest during his tenure. While the State had argued in court that the Governor’s actions, even in defiance of the Constitution, are not open to judicial review in view of what is said in the earlier part of Article 361, I had posed a question to the High Court on these lines – “Well, if a Governor is not going to be too much concerned with what this written Constitution says, I would guess, he shouldn’t mind if some police officer too would want to ignore the provision against his arrest in that very Article of the Constitution and would proceed to arrest him on an ‘allegation of corruption’; I don’t think that a Governor would be too pleased to hear a police officer tell him that an allegation of ‘corruption’ is the police officer’s defence to violate the constitutional bar against a Governor’s arrest.
“At that hypothetical point, I am very sure that such a Governor who once thought of nothing before violating the Constitution would want to seriously regret or even atone for his deed. The problem however is, when a country would reach such a point of constitutional failure, if the experience of more than half of all countries of the world is anything to go by, it would be too late to make any amend or to restore order into chaos.
“And, a constitutional court shouldn’t put itself to wonder or even regret later whether its misplaced enthusiasm to rewrite the Constitution had any part in emboldening that police officer to violate the terms of a written Constitution”.
Obviously, nothing that was argued as aforesaid finds any mention in the judgment. So has a lot of what was stated in our written argument gone unnoticed in the judgment.
The judgment is one that I hold, however, in great respect though I thoroughly disagree with it.
Exciting or troubling?
Time will tell about what will be the future of this judgment. There are of course many who are already cheering it and they would like to certainly see this country move in a direction in which powers or immunities under the Constitution would readily yield to whoever would so demand on the pretext of cleansing ‘corruption’.
On the other hand, any constitutional jurist out there must be screaming already in panic!
KV Dhananjay is an advocate of the Supreme Court based in Bangalore.
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The judgment may be grossly wrong, but there is a legal remedy available against it.
I mean every aggrieved litigant/litigator may well then have their own blogs and post their criticisms of the judgment which went against them, instead of taking recourse to the legal remedy.
Of course we have always had legal/scholarly articles being written against judgments, but the advocate who argued the matter himself writing a criticism of that judgment is something I find a little problematic.
As one would expect in such event, Dr.Mangala Sridhar immediately thereafter
approached the Hon’ble High Court of Karnataka. A learned Single Judge who heard
this case recused himself at the very inception. Then, the Hon’ble Chief Justice
allotted the matter to a different judge. A word about this later judge – this judge
brings great majesty to the Bench and is considered by the Bar as a judge with
exceptional knowledge and understanding of the law. On 21-Jul-2014, this learned
Judge reserved the matter for judgment after according to both sides, a completely
satisfactory and comprehensive opportunity to present their case.
So, the High Court might be actually pleased to read all this. The judge might be greatly pleased to elicit a comment like that. A judge rejects a lawyer's argument and yet the lawyer says that the judge brings great majesty to the Bench and the judge is exceptionally well learned!
I see tremendous courage in the author to tell the world that he has lost a significant case. Very few people ever do that. I don't see gripe anywhere in the piece. In fact, he starts by asking the reader to be mindful of the 'sour grape'. That alone makes the piece worth a read. Let's criticize him after we know that he was legally unjustified in writing this. That is, after the reader is satisfied that the judgment is proper and correct.
Cheers.
It would be a complete fallacy to say that only a lawyer based in Delhi is entitled to call himself as a Supreme Court lawyer. Any person who would readily accept a brief to argue at the Supreme Court is entitled to say that he is a Supreme Court lawyer and there are such persons across every High Court in this country. Nobody is demeaning the Karnataka High Court when they do not exclusively identify with it if they also would accept briefs at the SC and call themselves also as a Supreme Court lawyer. As to legitimising, what is there to ligitimise by calling oneself as a Supreme Court lawyer? India is a uni-bar country and you can choose to practice in whichever court of the country you choose to. It is just your misplaced perception that a person is prodding himself up when he calls himself as a SC lawyer. He might only be conveying where all he goes and nothing more.
If the criminal justice system gets more efficient in the coming days in India and the high and the mighty too are put to trials and tribulations, you will see lawyers who readily take up trials add to their business cards that they do conduct trials as well. Get practical pal.
Seeing however is believing to a limited extent. The land encroachment case at Court 1 is a case in point. Court 1 is the largest court hall and whenever there is the land encroachment case there, the court becomes jam packed and when he finishes and leaves the court proceeding is halted for some time because more than half of the audience leaves when he leaves.
It is nice to see that he just lost big time. That makes him just like the rest of us. There's nothing remarkable about he losing and why should his loss make news when nobody cares to know the victories of ordinary mortals?
The judgment of the High Court is against corruption and even if the judgment could be criticized by constitutional lawyers let us all take time to thank that we still have judges who will go against authority to curb corruption. Let nobody say that the Single judge should have gone soft on corruption. Salute to the judge! We need more of them. The judgment is morally and socially right. Corruption is cancer! Kudos to the judge.
The author’s last paragraph says:
I leave here with an honest belief that I have discharged my obligation as a concerned citizen of my country to protest a serious effort to damage the working of our Constitution.
So, he did not think that it was enough to merely stop with arguments in court. Let us appreciate him for going the extra distance that we might never even have imagined. His version is very serious indeed. He says:
But, what about the President making any reference to the Supreme Court in the first place? In other words, did the Hon’ble Governor even first write to the President of India and request him to initiate steps for removal of Dr.Mangala Sridhar? Of course, the President himself would have been powerless under the Constitution to remove a member of a PSC on ground of ‘misbehavior’ unless the Supreme Court had already expressed its opinion that a certain member be so removed. Further, did the Hon’ble Governor receive any information if the Hon’ble President had in fact, made a reference to the Hon’ble Supreme Court in respect of Dr.Mangala Sridhar? Well, for some inexplicable reason, these constitutional mandates were totally disregarded in Karnataka on those crucial days in this matter. In fact, the office of the President acknowledged the receipt of papers concerning Dr.Mangala Sridhar only on 22-May-2014. So, irrespective of what the Hon’ble President of India would have chosen to do in the matter, the Hon’ble Governor of Karnataka seemed to have readily decided that he will take the Constitution of India into his own hands. He had thereby arrogated to himself, an unfounded and a non-existent power in our Constitution. On 14-May-2014, the date of passage of the suspension order, the Hon’ble Governor of Karnataka clearly knew but had disregarded the fact that:
i. the papers concerning Dr.Mangala Sridhar had not even reached the office of the President at Delhi. These papers reached the President only much later;
ii. when the Hon’ble President of India had not even received any paper concerning the alleged corruption by Dr.Mangala Sridhar, the President could not have even applied his mind to it let alone make a reference to the Hon’ble Supreme Court of India urging it to form an opinion on whether it would be desirable to remove her from service on the ground of her alleged corruption. Article 317(2) of the Constitution clearly meant that the Governor of Karnataka could not have derived any authority to suspend Dr.Mangala Sridhar until the President had first made a reference to the Supreme Court against her. Disturbingly, these aspects, though plainly mandated under our Constitution, just did not matter at all to the then Hon’ble Governor of Karnataka, Sri H.R.Bharadwaj.
So, in an unprecedented act of defiance by the Governor of a State of the authority of the President of the Union, the Hon’ble Governor of Karnataka, Sri H.R.Bharadwaj, went on to order suspension of Dr.Mangala Sridhar in an utter and blatant violation of Article 317(2) of the Constitution on 14-May-2014.
He is merely requesting the President and the Parliament to take serious note of the defiant act of Mr.H.R.Bharadwaj. There’s absolutely no contest on that.
Finally, hoping that the concern surrounding the corruption allegation against Dr.Mangala Sridhar has been addressed to the satisfaction of a reasonable person, I only ask here that our Constitution not be jeopardized in the manner that has been done in Karnataka. I am a concerned citizen of my country. I am writing here to preserve our Constitution. Our Constitution cannot be preserved if only the Hon’ble President of India would not seriously note the act of a Governor of a State who knowingly, intentionally and deliberately defies the authority and prerogative of the President of the Union in the manner that has been done in Karnataka. Should the President process and act on the file relating to Dr.Mangala Sridhar, he would have undoubtedly encouraged the said defiance and thereby laid the foundation for more of such defiance in the future. That clearly would be opposed to our constitutional ideals. I request the Hon’ble President of India to return to the Hon’ble Governor of Karnataka and to the Government of Karnataka, the files relating to Dr.Mangala Sridhar on the ground of such egregious defiance of his constitutional authority.
He has also explained the impact from the judgment in his letter and that gives complete justification for his act of openly discussing about this case on Legallyindia. Why should such a responsible act of a concerned lawyer trouble anybody? Read about the impact here:
Since the judgment of the learned Single Judge was pronounced, a number of ministers and politicians have been resoundingly cheering it privately and the KPSC members are greatly fearing that they now find it simply impossible to resist interferences by ministers, politicians, movie-stars, judges, businessmen, power-brokers and whoever else is keen to push their own men and women into the State public service – thanks to the said judgment. After all, the case of Dr.Mangala Sridhar had involved the case of a candidate repeatedly calling a KPSC member and then levelling an allegation after receiving lesser marks that she was asked to pay a bribe for higher marks and as she had refused to pay a bribe, she got far lesser marks than she had deserved. All it takes to repeat another Mangala Sridhar incident is for a candidate to repeatedly call a KPSC member and what after all does it take to call someone endlessly? Nothing. So, KPSC members are justifiably worrying over what fate awaits them should they snub any interference by someone in power – they too could be called a dozen times, face an allegation of bribery and be suspended just as it all happened in the case of Dr.Mangala Sridhar; also the KPSC members have independently worried for a very long time that allegations of corruption can always be manufactured out of thin air against them should only the Government in power want to. In a State where allegations of KPSC corruption continue to regularly rule the news-cycle and still nobody ever got convicted in the past two decades, Dr.Mangala Sridhar would be easily counted as the only KPSC member to insist on the conduct of a corruption trial against her. That should speak to her moral strength, assuming that even corruption accused could in law and society; assert their moral strength and standing.
Mr.K.V.Dhananjay, you have done a right thing by not leaving the Constitution of this country only with the courts. Parliament and the Executive too have a stake in protecting and preserving it and you have rightly asked for their serious attention and indulgence. Salute your courage and conviction.
7.Nevertheless, the investigation ensued and a charge sheet came to be filed against Dr.Mangala Sridhar. Essentially, I would say here that there is nothing in the charge sheet to support the charge against Dr.Mangala Sridhar and in fact, there is ample evidence instead to support the alternative theory that it was the London doctor herself who was trying to bribe and intimidate Dr.Mangala Sridhar in return for higher marks. Of course, I have acted as a lawyer for Dr.Mangala Sridhar and I might very well be biased here. So, the reader is instead invited to assume that Dr.Mangala Sridhar is simply, a very corrupt member of the Karnataka Public Service Commission. Please retain that assumption throughout hereinafter. But, please do not forget even for a moment that it is just an assumption and not the truth. What happened next must be noted.
17.Of course, when the Government of Karnataka had argued at the High Court that the Governor had to simply suspend Dr.Mangala Sridhar because of her alleged corruption, one could not help but be amazed at it. She is not the Queen of England! Meaning, if she indeed is corrupt as alleged, she should have been arrested, tried and convicted under the provisions of the Prevention of Corruption Act, 1988 and not dealt with so lightly and that too, by perversely misreading the Constitution. The impugned order of suspension was both improper and unconstitutional and we had pointed to the High Court that the court itself did not have any authority to excuse the impugned act. After all, to excuse an executive violation of the Constitution, a court must receive some form of authority beyond the Constitution and who or what instrument anyway, has conferred any authority to any court of law in India to excuse an executive violation of a constitutional provision? Should a constitutional court in India derive its lawful authority from the Constitution of India, it would inherently be powerless to excuse an executive violation of a constitutional provision unless that court could also arrogate to itself, a power higher than what the Constitution could possibly confer to it. There is no other instrument of conferment.
The judge could have expressed all such concern independently without rewriting the constitution. If only the judge wanted Article 317(2) to be changed, the judge could have suggested that the same be considered for modification and the suggested end-form too could have been provided in the judgment itself. What has happened, however, is that the court has altogether encroached upon the lawful domain of the Parliament by rewriting a constitutional provision. This is not to be done.
Lord Krishna to Dhananjaya;
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Karmanye Vadhikaraste, Ma phaleshou kada chana – You have the right to perform your actions,but you are not entitled to the fruits of the actions.
Ma Karma Phala Hetur Bhurmatey Sangostva Akarmani – Do not let the fruit be the purpose of your actions, and therefore you won’t be attached to not doing your duty.
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Sincerely
Expand The Debate
Parliament of India should note this encroachment into their domain.
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