It was recently pointed out in these columns how the Supreme Court (SC) Order to set up a Special Investigative Team (SIT) headed by retired judges appointed by it to probe the black money scam created panic in the government. The possible exposure of big names protected by the government up till now could perhaps prove fatal for its survival. The government had pleaded that enough time had not been given to the High Level Committee (HLC) set up by it to probe the issue. This argument was deemed pathetic. The government contemplated filing a review petition in SC.
It was conceded that the SC order was unprecedented. Article 50 of the Constitution was recalled to emphasize its insistence upon the separation of powers between the judiciary and the executive. However Article 142 (1) was also recalled as the possible justification by SC to pass its unprecedented order. That Article enabled the Supreme Court to pass such an order “for doing complete justice in any cause or matter pending before it”. However, for the order to be enforceable it had to operate “under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.”
Now the government has changed its plea and has filed a review petition by taking the SC head on. It has claimed that the SC has displayed judicial overreach and violated the Constitutional principle of the separation of powers. Doubtless the SC would have considered all aspects before issuing its order. Hopefully, the court will reject the government’s review petition. If perchance the SC has any hesitation in persisting with its order in the light of the government’s arguments there is another option it can exercise. By doing so it could create history and possibly take the first step to introduce a long overdue change in our political system.
To fully comply with the provisions of Article 142 (1) in letter and spirit the SC can approach the President of India and pray for a Presidential Ordinance that enables the SC order to be enforced. On an issue in which the cabinet and the SC are in dispute the President should neither seek nor receive any advice from the cabinet. The President must decide for herself. The SC in its prayer to the President can draw attention to Article 142 (1) and explain the entire background of the black money case pending before it. If the cabinet attempts to thwart the President from issuing the desired Ordinance the SC will have to decide whether or not the cabinet is acting constitutionally.
Hypothetically if events do move in this fashion President Pratibha Patil would insulate her high office from the taint of a corrupt government and earn the applause of all Indians. This scenario could be the first decisive step to end the grotesque distortion in interpreting our Constitution. Our Constitution by no means suggests the President’s role to be that of a titular head bereft of any substantive responsibility. Rectifying this error could provide the start of political reform that restores accountability and governance to our system.