The written Constitution, and the unwritten one

Articles of Faith

There is an important case currently in the Calcutta High Court that has implications for India’s parliamentary democracy. It is an issue that even informed citizens may not know much about -- who should head the Public Accounts Committee of the West Bengal Legislative Assembly?

The Public Accounts Committee is charged with evaluating how the government has spent public money. It ensures the accountability of the executive to the legislature. By convention, it is headed by a member of the Opposition in the legislature. This convention is followed in the Lok Sabha, too, and even the Narendra Modi government, not otherwise known for being a stickler to constitutional propriety and niceties, has followed it: the PAC is currently headed by Congress MP Adhir Ranjan Chowdhury.

Controversy arose when the Speaker of the Bengal Assembly appointed Mukul Roy as chairman of the PAC. While Roy was elected on a BJP ticket in the recent election, he has since defected to TMC, the ruling party. His appointment has been challenged in court by a BJP MLA arguing that this is against constitutional norms and practice. But here’s the thing -- as per Article 212 of the Constitution, courts are not allowed to interfere in the internal matters of legislatures, including the constitution of such committees.

Should the court ignore Article 212 in this case and intervene? Or, should it follow Article 212 and allow a long-standing practice that is in tune with the spirit of the Constitution to be disregarded by the Speaker? Should the court let the PAC be subject to partisanship and thus let that institution collapse?

The arguments are ongoing, but this case tells us something important about our Constitution -- that some of the most important things it requires of us are not actually written down in it! The requirement that the Governor invite the leader of the single largest party to form the government after an election? Found nowhere in the Constitution. The rule that a Chief Justice of India should be the senior-most judge of the Supreme Court? Again, no article mentions this. The power of the High Court and Supreme Court to declare a law unconstitutional? Not written down in so many words.

Yet, all these are integral to our Constitution and to uphold its spirit. If a Governor were to ignore the winner of an election and appoint someone else, we call it unconstitutional. If the Union government were to ignore the senior-most judge of the Supreme Court (as Indira Gandhi did in 1973 and 1976), we call it unconstitutional. If Parliament by law tried to take away the power of the courts to declare laws unconstitutional, we would definitely consider that itself unconstitutional (as the Supreme Court has, in fact, in the past).

These are only some instances of things that we take for granted about the Constitution that are not actually written down in it. The Constitution is not only what has been written down. For the written Constitution to be worked as per the spirit of constitutional morality, as Babasaheb Ambedkar put it, we also have to have conventions, principles and norms that are followed on a daily basis and that are established as accepted practices over time. The Constitution has a written part and an unwritten code of constitutional conduct, and both are just as important.

This is why the dilemma before the Calcutta HC is so acute. Should the court condone the move by the Speaker to appoint Mukul Roy, it is only a matter of time before other state Assemblies, and even Parliament, follow suit -- reducing the PAC to a rubber-stamp of the respective government and making the legislature redundant. We have seen this happen with ‘money bills’. In 2014, the Supreme Court condoned the Akhilesh Yadav government’s use of the ‘money bill’ route for a law that had nothing to do with the Consolidated Fund of the state. The Modi government made it almost a habit during its first term, using it to bypass parliamentary propriety as it pleased.

On the other hand, if the court were to intervene and set aside the Speaker’s decision, it would undermine the authority of the Speaker and the sanctity of the legislature. Once that happens, it is a slippery slope then onwards as every small issue relating to the House will start to be litigated to the bitter end, making Article 212 redundant.

Perhaps it is unfair to put the Calcutta HC in this situation, and maybe the right way out is to remind the Speaker of his constitutional responsibilities and let him revoke Roy’s appointment on his own. The Constitution, after all, is not just for judges and lawyers, but also for the Speaker to follow.