The Supreme Court ruling on the Eknath Shinde case has given rise to a discussion on a serious threat looming large. Does it open a pandora’s box if a repeat of Maharashtra happens at the Centre orRashtra, putting at stake sovereignty, economy and perhaps the nation itself?Each case has a severe economic cost.

The change of government in Maharashtra saw sudden resumption of big projects that were stalled by the previous MVA government. Now it’s going whole hog at breakneck speed. The projects’ cost in trillions, involve sensitive ecological decisions or the flouting of it and no one is made answerable to the enormous financial cost.The vague approach is serious.

The court said the splinter Shiv Sena group and Eknath Shinde’s appointment as legislature party leader was illegal, slammed Governor BS Koshiyari for committing blunders, including the directive to then Chief Minister Uddhav Thackeray to take the floor test, and found the process lacking legality. But it refused to sack the Shinde government on the plea that Thackeray had resigned.

Sadly, it slipped away from the court’s mind that when Uddhav group approached it for a stay on the Governor seeking immediate trust vote, it had rejected it. So,Uddhav resigned. Now the court finds the Governor at fault. It should have considered this legality and granted stay to Uddhav. Now the blame is being put on him for tendering his resignation.

Technically,the court can absolve itself. People give a mandate for certain welfare and economic goals. The naivety of the court ruling may have changed that. Instead, it should have protected it. The court must look beyond the obvious, the serious, moral, ethical, financial and perceived threats to the nation. That is where Rashtra and Maharashtra matters.

The simplistic issue of majority has more to it than meets the eye. The court can aver that finances are not its concern, as Reserve Bank of India lawyer Jaideep Gupta put before it against the 58 petitions on demonetisation of 6 November 2016. He said, “Judicial review cannot be countenanced in economic policy measure unless found to be unconstitutional. Economically relevant factors in economic policy making are best left to experts”.

Thankfully,the court did not agree on 6 December 2022 and said limited scope of a judicial review in economic policy matters does not mean that court will fold its hands and sit back, observing that the manner in which a decision is taken by the government can always be examined.

The Maharashtra government’s destabilisation has grave financial, economic and other sovereign implications. In June 2022, the Niti Aayog released a report claiming that Rs 24,541.15 crore and 82,060 jobs had been lost due to five cases in which the Supreme Court and the National Green Tribunal temporarily halted or completely banned economic activities (These are not related to Maharashtra). The Aayog here ignored the environmental implications. 

In Maharashtra, a slew of projects that were taken up included destruction of marshes, mangroves and Mumbai protected forests. Apparently, big investors were involved.

It was beyond the prism of the court. But its decision of allowing it to function, raises many critical questions. Yes, Uddhav was at fault for resigning. But did he have much of an option? Had he not resigned he could have been dismissed by the same Governor. The court has onerous and sensitive duty in such situations.

Hypothetically, if a similar coup happens say at the behest of some, may be a motley group or select business cartel, at the Rashtra, Delhi as per the Shinde precedent, would the court again take a view to allow fait accompli! If so, it could be grave miscarriage of justice. It may even be threat to the nation’s security and sovereignty.

Soon after such a formation of government, the new group of defectors, can act to change the Union budget, many defence projects, and other decisions through money bills, which literally are fait accompli. The provision of money bill is debatable. Many non-financial issues have come up as money bills for the purpose of getting these passed without parliamentary sanction. Parliament must mull over such provisions. These can be used for nefarious purposes. Courts can’t ignore.

And, if the political class ignores correction and the Constitution remains vague, the interpretation would have to be done by the court. Allowing fait accompli on the plea that there has to be a government that could deliver is faulted. In this case too, the logic applied by the court in the demonetisation case could have been applied.

Defections, retail or wholesale, have financial considerations. In 1967, Bihar is witness to a Shoshit Dal government that had 22 members, ruled for 22 days and its members made slew of visits across India. The States have the Centre to protect them. Nobody should be allowed to have the advantage of the frailty of the legal process at the Centre as the nation’s wealth may be at stake for vacillating legal approaches.

Sometimes to have an apolitical face, courts avoid a decision. The Uddhav Thackeray case may have been one. It is a lesson, that the court even unwittingly, should not become party to destabilising force. “The court needs to avoid that particular outcome which has a potential to create an adverse effect on employment, growth of infrastructure or economy, or the revenue of the state,” Supreme Court Justices A.K. Sikri and A.M. Sapre, said in a May 2017 ruling overturning a high court decision that shut down a sugar factory because it was too close to another.

This ruling has played a significant role. The top court’s judgment sets precedent as projects worth billions of rupees remain stuck for years in a judicial system that has over 24 million pending cases, including commercial and criminal. India is ranked 130 out of 190 in ease of doing business by the World Bank and 172 in enforcing contracts. The NGT’s mindless ruling on scrapping the 10-year-old vehicles is wrecking individuals and transport industry.

Shinde or Thackeray case is landmark and needs extreme caution. These can make or mar a nation. The court has to restore the rule of law. That is what gets hurt the most if rulings were vague.Economic benefits cannot always be fathomed. These can happen from innocuous political incidents. The court cannot ignore these or avoid for being correct of a different nature.

(INFA)

(The writer is former senior editor, The Financial Express and Professor, Indian Institute of Mass Communication.)