It was perhaps the stickiest constitutional quagmire the United Kingdom had faced in 50 years. British Prime Minister Boris Johnson, in an attempt to evade parliamentary scrutiny of his government’s actions with regards the country’s planned exit from the European Union, had in August advised the Queen – who is the head of state – to prorogue Parliament for three weeks in September.
Johnson’s decision was immediately denounced by politicians across the political spectrum as an attack on democracy and the British tradition of parliamentary supremacy. But the prime minister refused to withdraw his recommendation to the Queen.
A barrage of legal challenges followed. In England, the High Court refused to take up the matter, arguing that it was beyond the purview of the judiciary. But in Scotland, the judges categorically ruled that Johnson’s move was unconstitutional and malafide.
Given the contrasting decisions, the matter was placed before the country’s Supreme Court.
The manner in which the British court dealt with the case offers a great lesson for India’s own Supreme Court, which has failed to rise to the occasion at a time when a majoritarian executive has mounted an unprecedented attack on the country’s institutions and constitutional scheme.
The United Kingdom’s top court listed the matter within a week of the case being filed and formed a 11-judge bench, the largest possible. Dates for arguments were quickly set. The matter was concluded in just over two days. The judgement was delivered on Tuesday, when the court struck the prime minister’s decision down in a brief but powerfully articulated order.
The unprecedented nature of the British situation could be compared to the Bharatiya Janata Party government’s decision on August 5 to hollow out Article 370 of the Constitution. To begin with, the special status for Jammu and Kashmir was removed in a matter of hours. No proper debate was allowed on the matter, strangling the life out of the parliamentary system. In addition, Kashmiris were shackled by severe restrictions on movement and communications, some of which continue even 50 days later. This violation of parliamentary tradition and the trampling of the fundamental rights of a large section of citizens should have forced an immediate, elaborate hearing from the Supreme Court.
This has not happened. In habeas corpus writ petitions challenging the detentions of political leaders and others in Kashmir, the Supreme Courtrefused to examine the legality of the matter immediately. On the constitutional questions that have been raised by the abrogation of Jammu and Kashmir’s special status, the court does not seem to think this is a matter urgent enough for a swift hearing. It has scheduled a hearing for October. Instead, a five-judge bench continues to hear the title suits in the Babri Masjid case, showing great eagerness in completing the arguments.
As the highest constitutional court, the Supreme Court has the discretion to decide what matter needs its urgent attention. But this discretion must be exercised with public good as the driving force. In this, the UK court has set an example that the Indian judiciary would do well to emulate.
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