The reaction of the leaders of the four political parties to the Supreme Court stay order against the 16-point agreement was restrained—for a good reason. The same leaders had not long ago colluded in the formation of a government under the leadership of a sitting Chief Justice, making a mockery of the hallowed democratic principle of separation of powers. They can hardly complain if the emboldened Supreme Court now believes it can meddle in constitution-making, a purely political process. That, however, does not in any way justify the court's stay order against the 16-point political agreement. Apparently, justice Girish Chandra Lal believes that the sovereign Constituent Assembly is being bypassed by the four parties' decision to entrust the delineation of future federal provinces to a 'Federal Commission'. According to the 16-point accord, the commission's recommendation will then be endorsed by the legislative-parliament which will remain in place following the dissolution of the Constituent Assembly after the promulgation of new constitution. The court rather believes the final federal map should be endorsed by CA proper. This is needless nitpicking.The 16-point accord is an agreement among the four parties that together command over 80 percent seats in the second Constituent Assembly. And since the implementation of the deal will, ipso facto, be through the CA, it is hard to see how it can be unconstitutional. Yes, we too would have liked to see the contours of new federal states settled right now. But that wasn't meant to be. There was a clear choice: either we deferred decisions on certain components of federalism or we would have to continue to wait for consensus on federalism, something that has not been possible in last seven years. But, again, this is a political question and hence beyond the ambit of the judiciary. Its role is interpreting the constitution, not drafting it. The apex court order against the 16-point deal, as such, is a clear case of judicial overreach and the court has needlessly dragged itself into controversy in the process. But there is time to make amends. The court can still acknowledge its mistake by taking up the government offer for a review of its verdict by a larger bench.
The Supreme Court verdict last Friday was all the more baffling because in the recent past the court has made a concerted effort to stay away from politics. It declined to be dragged into controversy over the nomination of the 26 lawmakers or over the issue of reelection of the President and Vice-President. And yet it has decided to play an interventionist role on federalism, the most sensitive constitutional issue. Otherwise, what substantive difference does it make whether the CA or the parliament (with the same set of lawmakers) ultimately decides on federal boundaries? This emphasis of form over substance by an institution entrusted with nuanced interpretation of the constitution is troubling. The verdict is unlikely to affect the ongoing constitutional process being undertaken by representatives of the people chosen through popular mandate. It is the judiciary's independent, apolitical image that could take a beating if the court doesn't correct its course soon.
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