You may well ask ‘So what”? The Supreme Court of the United Kingdom, Lady Hale and 10 fellow justices have struck down Prime Minister Boris Johnson’s suspension of Parliament. By ruling that Mr. Johnson acted unlawfully — and doing so in such stark language — the court asserted its right to curb a government that obstructed Parliament’s ability to “carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.” This is an extraordinary intervention by the judiciary into a political dispute and herein lies the problem.
Stephen Tierney, a professor of constitutional theory at Edinburgh University, said it was “astonishing” that the court had ruled decisively that it “can review something as fundamental as that, done by Her Majesty, as unlawful.” He further opined “The court is getting involved in what was largely seen as the internal workings of Parliament and its supreme power.”
In the United States, the courts have intervened regularly to challenge actions of the Trump administration, such as its ban on visitors from predominantly Muslim countries. The Supreme Court routinely exercises judicial review by actively interpreting the American Constitution.
Britain, however, relies on a partly unwritten set of traditions and conventions that have treated a sovereign Parliament as the supreme power in the land. Once the courts venture into the political sphere and begin to pass judgment on Parliament’s actions, some legal analysts say, there is no going back. The judiciary is now cementing a new constitutional principle: parliamentary accountability or the right of lawmakers to scrutinize the workings of government.
When Mr. Boris Johnson prorogued Parliament for 3 weeks he was exercising his executive privilege. A section of his parliament accused him of avoiding scrutiny and debate on the contentious issue of Brexit. Invariably the issue was challenged in the courts and two conflicting judgments were obtained. The Scottish court held that the executive decision was illegal and the English High Court ruled that it was beyond its competence to pronounce judgement on Parliamentary decisions. With this in the backdrop when you read the Supreme Court’s judgment, there is undeniably an air of judicial activism in it.
Why does it bother us in India? It does so because our parliamentary democracy has shaped itself in the British Westminster mould and we have a habit of doing things today what they did yesterday. If a section of people in U.K. succeed in finding a judicial route to overturn Brexit, that was voted by the people of that country, be rest assured popularly elected governments in India will too have to face judicial interference on contentious issues in days to come. Intellectuals have long believed that an independent judiciary is duty bound to clip the wings of the executive and this decision of the British court gives them the required oxygen.
So long as you and I elect strong majority governments the judiciary may not try any misadventure but minority and coalition governments will remain at their mercy and judiciary will become the final arbiter of politics. Even today when the parliamentary numbers are stacked hopelessly against them, the opposition banks on the judiciary to veto the government. Political debates in parliament sound like legal proceedings when the opposition puts forward its views thus implying that legal precedents are sacrosanct and the legislature is duty bound to follow them. If the parliament keeps on doing the same things then how can they be innovative, try newer options, and respond to newer challenges?
While I am least bothered by what happens to the British Prime Minister, or his government, or Brexit, what bothers me is the tendency of our guys to imitate the British system. What they have to realize is that the Brits can get it wrong once in a while!
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