In India everyone believes he/she knows the law.
That there are broadly statutory laws and judicially pronounced laws, are known to the better informed.
That unless the Supreme Court had authoritatively pronounced on an issue, the High Court decision on the issue ought to prevail in that state is known to the legally minded.
That if a decision could be distinguished on certain grounds, the precedents set by the SCI and the HCs could be challenged is known to the lawyers.
If a matter has not yet been decided authoritatively by any court in India then such issues are classified as RES INTEGRA and beg for judicial determination!
Beyond all these is something called CONVENTION, which by common consent over a period of time has come to be accepted as the Law.
In Administrative Law there is a judgement delivered by Lord Greene, in the late forties of the last century, which enunciated certain principles which goes by the name WEDNESBURY PRINCIPLES.
There are three limbs to those principles relating to DISCRETION in administrative law. They are
0. Whether in the decision making process any irrelevant material has been taken into consideration?
0. Whether in the decision making process any relevant material which ought to have been taken into consideration has been left out?
0. Whether the decision is so unreasonable that the decision is UNREASONABLE.
I have been amused at the arguments put forward both in the TV news and sometimes even in the Supreme Court, that I wonder if we as a nation should spend so much time on ‘distinguishing facts’ to overturn the principles enunciated in precedents of force.
Some of the arguments which are laughable are
0. Whether the Anti Defection Law as mentioned in the Tenth Schedule would come into force only after an elected representative had taken oath 😂🤣
0. Which law provides for a person to start executing the office of the Chief Minister, immediately after swearing in, when he doesn’t have the support of 50% of the house. It is a constitutional necessity to be sworn in as a CM before proving his majority, but to start exercising its functions even before the floor test, especially when apparently the numbers are not there, and take administrative decisions is a ludicrous act.
0. Under which law of the land does it say that the largest single party or pre-poll alliance should be called to form a govt. overlooking the reasonable numbers of the post poll formation from the other side?
0. As a convention we have accepted the Goan, Manipuri and Meghalaya models, so it appeared as a convention to me that post poll alliance is also acceptable for consideration by the Governor.
0. Who told that when elections are called for, upon end of the previous term, if the party which was in ruling received fewer seats it has been VOTED OUT? It simply means the same party has not been VOTED TO POWER. Period. This cannot form the grounds for a less than majority party to stake claim that the previous ruling party had been ‘voted out’. Every party is voted to power for a period of five years and thereafter they have to seek a fresh mandate. After four years of Presidentship when a George Bush senior recontested, he was not voted out, he was not voted in for the second term. That’s it. To build grounds for claiming a better right on those grounds appear to attack ‘reasonableness’.
This hogwash of ‘dance of democracy’ of unreasonableness and irrelevant consideration and non consideration of relevant factors have to be stopped in the altar of Conventions.
It would be laudable if the Hon’ble Supreme Court of India came up with its own WEDNESBURY Principles and shorten and sanctify the procedures for determination of whom to call, by the Governors of the various states of India.
May 18, 2018