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(This is a Guest Post by Nivedhitha K.)


On 24th September 2019, the UK Supreme Court delivered the judgment in R (Miller) v. The Prime Minister, declaring the prorogation of the UK Parliament unlawful. Apart from the judgment being lauded as a landmark one for its timely and precise intervention, it also involves some important questions of law. In this post, I will attempt to analyse the decision of Miller, and distinguish it with the Indian jurisprudence on the question of “aid and advice.” I will then explain the inadequacy of the Indian jurisprudence on this issue, and propose for its reformation on the lines of Miller.

Facts of Miller’s Case 

A referendum was held in the UK on 23rd June 2016, where the majority voted for leaving the European Union (hereinafter referred to as “EU”). The government has since then been involved with the task of implementing the decision of the majority. Under Article 50 of the EU treaty, for a Member State to withdraw from the Union, it must notify the EU of its intention, and arrive at an agreement on the future relationship between the member state and the EU. In this context, under the EU (Withdrawal) Act 2018 – passed by the UK Parliament – the withdrawal agreement must be approved by the House of Commons, and a legislation incorporating the provisions of the withdrawal agreement must be passed. However, following an extension to the mandatory two-year period that sets into play after an Article 50 Notification, 31st October was decided to be the cut-off date for the UK to exit the EU. Therefore, irrespective of whether or not the UK Parliament was able to approve of a withdrawal agreement, the UK would have to leave the EU on 31st October.

However, an order was passed by the Queen that the UK Parliament would be prorogued from 12th September 2019 to 14th October 2019. In the UK- akin to India- the Queen (the Head of State) acts on the aid and advice of the Prime Minister. The prorogation was challenged in the High Court of England and Wales, and was dismissed on the ground that the issue was non-justiciable. On appeal, the Supreme Court (a bench of eleven) held that the issue was justiciable, and declared the prorogation unlawful.

The issues that were framed by the Court were fourfold: (paragraph 27)

(1) Is the question of whether the Prime Minister’s advice to the Queen was lawful, justiciable in a court of law?

(2) If it is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

(4) If it was not, what remedy should the court grant?

The test laid down in Miller on the justiciability of aid and advice

The bench observed that the advice rendered by the Prime Minister was justiciable. The test that was applied to test the lawfulness of the advice was, “a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.” (paragraph 50)

Though facially it seems to test the validity of the prorogation, in actuality it is a test on the extent of justiciability of the advice rendered by the Prime Minister.  The two-prong test formulated to test the extent of justiciability of the advice rendered by the Prime Minister is: 1) whether the advice in effect violates a constitutional principle (violation test)? 2) Whether the violation is reasonably justified (justification test)?

To identify the sub-facets of the test, it is necessary to look at how the test was applied to the given factual circumstance. The bench rejected the improper motive standard. Therefore, the court did not look into whether the Prime Minister was motivated to violate the Constitutional principles, but rather looked into whether the act effected at the violation of Constitutional principles. In this context, the bench observed that when the house was prorogued for a longer duration- unlike a short prorogation- the constitutional principles of parliamentary sovereignty and parliamentary accountability are violated.

On the question of justification, the bench referred to the documents that had formed the basis of the advice, and held that the violation of the constitutional principles was not ‘reasonably justified’. While the violation test was guided by the ‘effects standard’, the justification test was guided by the ‘proportionality standard’ Though the court did not explicitly refer to the proportionality standard, it can be inferred by the arguments put forth below.

Establishing the proportionality standard

Firstly, not mere justification but reasonable justification was the test evolved. Therefore, the court did not regard all justifications to be reasonable justifications. What is then the standard of reasonableness? The following observations guide us on the court’s standard of reasonableness. In paragraph 60, the bench observed that “the proposal was careful to ensure that there would be some Parliamentary time both before and after the European Council meeting on 17th – 18th October. But it does not explain why it was necessary to curtail what time there would otherwise have been for Brexit related business.” The bench was not convinced by the reasoning that there would be some time; it asked: “why not the otherwise available time?” Therefore, the first test that was used by the court under the proportionality standard was whether the materials had shown relevant reason to authorise the act that had the effect of violating Constitutional principles- in this case, parliamentary sovereignty and accountability by denying the parliamentarians the otherwise available time for discussion on the withdrawal agreement.

Another observation by the bench provides further clarity. The court observed that “the Prime Minister’s wish to end one session of the Parliament and to begin another will normally be enough in itself to justify the short period of prorogation which has been normal in modern practice. It could only be in unusual circumstances that any further justification might be necessary” (paragraph 51). The bench here observed that usually- i.e when a short term prorogation was declared- the wish of the Prime Minister was a justifiable reason. However, when a long term prorogation under an extraordinary situation was declared, it would not be justifiable on the wish of the Prime Minister alone; rather, reasoning proportional to the effect would have to be provided. Therefore, the second test was whether the relevant reasoning was proportional to the effect. The court observed that the effects of a long term prorogation in the given extraordinary situation were graver in comparison to the effects of a short term prorogation, and the court required more convincing reasoning for graver effects.

Lastly, the court in paragraph 60 observed that the reasoning did not differentiate between the process of recess and prorogation. Thus, the third test that was formulated was whether the least restrictive means to achieve the objective was used. On perusal of the documents that had formed the basis of the advice, the objective of the prorogation seemed to be the need to introduce new bills. This objective could have been fulfilled by imposing a short term prorogation (a lesser restrictive means) which would not violate Constitutional principles.   It is clear, therefore, that the court looked into the materials to find a reasonable justification, for which it used the proportionality standard.

Summing up, the test for justiciability of aid and advice evolved in Miller is as follows:

  1. Whether the act (which was guided by the advice) violates a constitutional principle- in effect?
  2. Whether the violation can be reasonably justified through the application of the proportionality standard?

The proportionality standard applied requires the following tests to be fulfilled:

(a) Whether the reasoning has relevance to the effect of the use of prerogative power.

(b) Whether the relevant reasoning is proportional to the effect.

(c) Whether the least restrictive, but equally effective means is used to achieve the objective.

I will now juxtapose Miller’s test with the Indian jurisprudence on aid and advice. Before I make a comparison, two primary differences between the legal systems of India and UK will have to be addressed. First, the UK- unlike India- does not have a written Constitution. Therefore, Indian legal jurisprudence is comparatively more ‘formalist’ in nature. Secondly, Article 74(2) of the Indian Constitution restricts the justiciability of the aid and advice of the Council of Ministers (hereinafter referred to as ‘CoM’). Despite these two differences, the Indian courts will not face any obstacle in applying the UK jurisprudence- laid down in Miller- on the subject matter.

The Indian test on aid and advice

In India, the test on the extent of justiciability of the aid and advice of the CoM/ satisfaction of the President was laid down in the case of S.R Bommai. It was observed that the bar in Article 74(2) – on the justiciability of aid and advice rendered – only excludes the questioning of whether there was advice given, and what advice was given. Further, the court engaged in harmonious construction of Articles 74(2) and 142 and held the materials relied upon by the President for the use of his prerogative power shall be placed before it.

The extent of judicial review of the materials relied upon was held to be as follows: ‘…the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material. It will also not substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action. The ground of mala fides takes in inter alia situations where the proclamation is found to be clear case of abuse of power, or what is sometimes called fraud on power- cases where this power is invoked for achieving oblique ends”. Therefore, unlike the UK jurisprudence, in India, it is sufficient if the material- and not reasoning in the material- is relevant to the prerogative act. However, the Court further observed that the ‘legitimacy of the inference drawn from such material’ can be questioned.

The subsidiary question is how the court could question the legitimacy of the inference drawn from such material, without questioning the subjective satisfaction of the President/Governor. The Supreme Court in the case of BP Singhal held that to test the legitimacy drawn from the material, the “reasonable prudent man’s” test will have to be applied. Therefore, the test in India is as follows:

  1. Is there any relevant material to sustainthe action (‘relevancy test’)?
  2. Will a ‘reasonable prudent man’- given the material before him- be able to arrive at the same conclusion on the use of prerogative power as the President/Governor (‘legitimacy test’)?

There are two issues in the Indian jurisprudence on aid and advice. First, the Indian courts- unlike the UK- focus on the form of the prerogative act instead of its effect. Second, the relevance of the material is deemed sufficient, with no standard for the reasonable prudent man to decide on the legitimacy of the inference.

Form and effect of the prerogative act 

Let me argue that the reliance of the Indian courts on the form instead of the effect, in practicality permits the court to analyse the ‘subjective satisfaction’ of the President/ Governor- something that it says it would not do. Let me explain this through a factual situation. In November 2019, due to the inability of the party with the maximum members in the legislative assembly but with no simple majority to form the government in Maharashtra, the governor sent a report to the President that the Government cannot be formed in accordance with the provisions of the Constitution. Therefore, following the report of the Governor and the recommendation by the CoM, Presidential rule was imposed, with the legislative assembly of the State in suspended animation. Immediately, the Shiv Sena filed a petition in the Supreme Court challenging the imposition of President’s Rule in the State. Let us hypothetically assume that the petition by Shiv Sena challenges the aid and advice of the cabinet that led to the imposition of the President’s rule, keeping aside its argument on unequal and insufficient time given to it for the formation of the government.

Let us presume that the relevancy test has been fulfilled as the court regarded the materials placed before the President to be relevant to the declaration of Presidential rule (i.e the form). Let me will now frame the legitimacy test from the perspective of the form and effect of the prerogative act.

  1. Through the relevant materials placed before a ‘reasonable prudent man’, would he regard the reasons justifiableto declare Presidential rule (i.e the form)?
  2. Through the relevant material placed before a ‘reasonable prudent man’, would he regard the reasons proportional to the suspension of parliamentary democracy (i.e the effect)?

 

There are two issues in the manner in which question A is framed. First, the form, instead of the effect (as in question B) is regarded as the end. Second, it does not prescribe a standard for the ‘reasonable prudent man’ to decide on the legitimacy. As a rough analogy one may imagine A being given the task of choosing the better of two dolls. In the first circumstance, A is asked to choose the better doll between the two, but the dolls are not completely made- they still are in clay form. In the second instance, A is asked to decide the better doll between two dolls- the dolls are completed and painted. The decision of A will be better guided in the second instance because while he looks at the final effect of the dolls, he has something concrete to base his decisions upon. Therefore, the subjective analysis of the judges would ease if the judicial attention is on the effect instead of the form.

It will not be logically sound for the courts to follow the nexus/relevance test while the effects standard is put to use. The ‘nexus’ or the ‘relevance’ standard can only be used when the end is an object or a purpose. When the effects standard is used, it would not matter if the reasoning only has some nexus with the effect. Rather, the question is whether the effect is justified – for which the proportionality standard will have to be put to use.

Summing up, the effects test and proportionality test have been inferred from the decision in Miller. The Indian jurisprudence on aid and advice, specifically on the determination of legitimacy from the material placed is explained to be inadequate. The primacy of form of the prerogative act in the Indian jurisprudence, in comparison to the effect test in the UK has been criticised with the help of an analogy. Finally, the insufficiency of relying on the relevance of the reason for the effects standard was explained. The above reasons led to the suggestion of usage of the proportionality standard (along with the three subsets) to decide the ‘reasonable prudent mans’ legitimacy test.

Proportionality standard and the Presidential rule

Before deciding on the constitutionality of the Presidential rule in Maharashtra by   applying the proportionality, it is necessary to answer a preliminary question that arises – whether on the imposition of the Presidents rule due to ‘breakdown of the Constitutional machinery’ in a State, there is no Constitution in existence for the constitutional principle of parliamentary democracy to be suspended?

The argument is that the declaration of the Presidents’ rule in the State does not necessarily mean that Constitutional principles are abrogated. The jurisprudence of basic structure evolved primarily because of the existence of certain Constitutional principles are beyond the clutches of majoritarian forces. During the Presidents’ rule, there might be suspension of the operation of the Constitutional text, but not the underlying Constitutional principles. However, provisions in the Constitution allow for the suspension of certain fundamental rights during emergency. The question that then arises is: when fundamental rights cannot be enforced, how can certain constitutional principles be enforced? For example, reasonableness that guides the golden triangle (i.e Articles 14, 19 and 21) has been held to be a basic feature of the Constitution (which is also a constitutional principle). However, the crucial point is that the operation of Article 356 differentiates between the imposition of Presidential rule for the reason of secessionist insurgency (eg: Punjab 1980’s) and inability of political party to form the government (eg: Maharashtra on November 2019). When the Presidents’ rule is declared on the reason of insurgency, suspension of enforcement of fundamental rights may be made by an executive order. In such cases, the Constitutional principles guiding the fundamental rights chapter may be suspended but other Constitutional principles would remain enforceable. While Presidents’ rule is imposed due to the inability to form the government, all Constitutional principles are enforceable.

Now, let us apply the proportionality standard that was formulated in Miller to the challenge on the Presidential rule imposed in Maharashtra. Prior to the application of the standard, one would first be required to identify the objective of the use of prerogative power, the means used to achieve the objective, and its effect on Constitutional principles. The objective of the imposition of the Presidential rule was to remedy the breakdown of Constitutional machinery, given that Mr. Devendra Fadnavis –the acting Chief Minister- had resigned on November 8. The means that was employed to meet the objective, was the imposition of Presidential rule in the state. The effect of the means used was that parliamentary democracy was frustrated by limiting the time provided to willing political parties to form the government.

On the application of the proportionality standard to the factual situation of Presidential rules’ in Maharashtra, the court would have to answer the following sub-tests of the proportionality standard: first, whether the material relied on has relevant reasoning on denial of time to political parties for forming the government. The reasoning in the material should not have merely focused on the reasons for the declaration of Presidential rule, but must have provided specific reasoning on the denial of time sought by Shiv Sena since it was willing to form the government.

Secondly, whether the relevant reasoning is proportional to the effect. Under this prong, the court should not settle for the same reasoning for acts that lead to different effects. For example, the reasons for the declaration of a Presidential rule when political parties express the ability to form the government, must be different from the reasons when political parties are unable to form the government.

And thirdly, whether the least restrictive, but equally effective means to achieve the objective was used. The court should test if there are other restrictive but equally effective means to achieve the objective of remedying the breakdown of Constitutional machinery. While deciding on this test, the court shall keep in mind the available Constitutional remedies, the resignation of the acting Chief Minister, and the need to prevent horse-trading.

Indian Jurisprudence on aid and advice, and the proportionality Standard

The closest the Indian courts have come to the UK jurisprudence is when the courts held that repromulgation of ordinances amounted to malafide use of power, where the power is used to achieve oblique ends. In Krishna Kumar II, it was observed ‘repromulgation violates parliamentary sovereignty’. In both D. C Wadhwa and Krishna Kumar II, the court found repromulgation to be manifestly arbitrary that they did not look into the aid and advice theory jurisprudence. Though there had been references to the effect on Constitutional principles, the court held repromulgation to be unconstitutional primarily on the ground of the form– the necessity of placing the ordinances before the house.  

However, the Indian courts are not completely unmindful of the proportionality analysis in the realm of Presidential satisfaction. In B.P Singhal, when the doctrine of pleasure of the President was under question, it was observed, “where a prima facie case of arbitrariness or malafides is made out, the Court can require the Union Government to produce records/materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons. What will constitute good and compelling reasons would depend upon the facts of the case.” This is a very similar analysis to that which was taken in Miller’s decision, provided the court looks at the effect while deciding whether it is a case of malafide use of power. The ‘good and compelling reason’ test is to be determined by the proportionality standard.

Therefore, the Indian jurisprudence on aid and advice would have to be modified on the lines of Miller, to prevent inadvertent prejudicial and subjective satisfaction of the judges while deciding on the satisfaction of the President.