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[Opinion] HC rewrites Constitution after Governor defies President’s authority in K’taka PSC ousting

Dhananjay: Dissecting a lost case
Dhananjay: Dissecting a lost case
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.

The judgment is here.

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?

Deccan Chronicle 17 Aug 2014
Deccan Chronicle 17 Aug 2014
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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