#dnaEdit: Bending the rules

The Bihar political crisis apart from taking the proverbial twists and turns has also spilled over into the legal domain, and there appears a gridlock on that front. A division bench of Patna high court has declared that there would be no “legal consequences” of the letter issued by the secretary of the state legislature on the speaker’s “instruction”. The letter is recognition of Nitish Kumar as leader of the legislative party of the Janata Dal (United). The court has said, “We intend to examine the legal applicability of the letter.”

The question that arises is whether the court can intervene in a matter pertaining to the legislature, where the speaker’s word is deemed final. Common sense would indicate that the court cannot interfere in the rules and procedures evolved to handle the business of the House by the legislators. It is the speaker who gives recognition to parties and its leaders and notification in the House record is part of the rules and proceedings of the House. 

It looks like Speaker Uday Narayan Choudhary, a member of the JD (U) and also affiliated to the majority supporting Nitish Kumar seems to have overplayed the hand in issuing the letter. It is a procedural norm which he could have followed after Kumar has won the majority test in the House. The JD (U) was keen to establish that Kumar as leader of Janata Dal (United) Legislature Party has a legitimate claim to form the government and Governor Kailash Nath Tripathi, a BJP appointee, should honour it. It seemed that the JD (U) believed that the letter would strengthen Kumar’s claims. The truth is it does not.   

The fact is that the speaker once he or she becomes a speaker cannot be seen to be acting in a partisan matter. Second, the governor, though a BJP appointee, a party which is a bitter rival of the JD (U) in the fractious state politics, should not give scope for suspicion that he is willing to use his discretionary powers to needle JD (U) and Kumar. By issuing the letter, the speaker showed unnecessary haste. The governor instead of asking for Kumar to prove his majority seems to be taking shelter behind the need to seek legal opinion before acting in the matter. What should be a simple procedure is made into a mind-boggling legal tangle.

A simple case of factional friction is elevated to the level of constitutional deadlock because the Constitution does not recognise the party, the majority party in the legislature or the leader of the legislature party. But the Chief Minister is the leader of the party that has a majority in the legislature, and the Chief Minister as leader of the legislature is deemed to command the confidence of the House. These issues are considered as constitutional conventions, which are honoured as much as those aspects explicitly stated in the text of the Constitution. The court can legitimately claim that under powers of judicial review it is bound to interpret the Constitution as well as its conventions. What is apparent is that the intent of the Constitution is not casuistry but fair and just conduct of legislative and executive business. It is this simple test that the speaker, the governor and other political players, including the central government, are failing today.