'We Find It Disturbing' : Supreme Court Stays Andhra High Court's Attempt To Examine 'Constitutional Breakdown' In AP

The Supreme Court on Friday stayed the order of the Andhra Pradesh High Court whereby it had decided to examine if there is a "constitutional breakdown" in the State of AP.

"We find it disturbing", commented the Chief Justice of India SA Bobde about the High Court order.

The bench issued notice on the petition. The matter will be listed after Christmas vacations.

The development comes after a High Court Division Bench led by Justice Rakesh Kumar rejected an application filed by the State Government seeking recall of the said order.

The State of Andhra Pradesh approached the top court challenging the order passed by the High Court on December 14 refusing to recall the October 1 order passed by the bench to examine the breakdown of constitutional machinery in the state.

"I'm not allowing anyone to challenge my order in front of me…one may go to Supreme Court," the Justice Rakesh Kumar had remarked during the course of hearing of the State's recall application.

The Advocate General, Subrahmanyam Sriram, complained that the bench had proceeded to reject the application without providing him adequate opportunity to present the case. He submitted that he wanted to cite certain precedents that allows a Judge to recall his own order but the Court did not allow him to complete his submissions.

The AG had raised objection regarding the jurisdiction of the Court to deal with the question of "constitutional breakdown" and urged the bench to treat it as a preliminary issue.

On October 1, the bench, also including Justice Uma Devi, had converted the hearing on a batch of habeas corpus petitions and petitions alleging police excesses as a hearing on the issue whether there is a "constitutional breakdown" in the State of Andhra Pradesh.

It had directed the government counsel to make submissions on whether the court can record a finding that there is Constitutional breakdown "in the light of the circumstances which are prevailing in the State of AP."

Responding to this, the State had filed an application for recall, while highlighting that in the absence of any pleadings in the writ petition, the court may not examine the issue regarding failure of constitutional breakdown in the state.

Rejecting the application on Monday, the bench observed :

"On 1/10/2020 when the present PIL was taken up with other 16 cases the Court noted that on a number of occasions there was "illegal picking up of persons by police" and after filing habeas corpus either they were being remanded or released.

The Court had summoned the DGP who gave assurance that instructions will be given to the Police personnel to follow all the guidelines laid down by the Supreme Court in DK Basu case and other amendments that followed the pronouncement.

Though assurance was given by the DGP, rampantly such excesses by police were going on and this court also noticed that after passing the judicial order, the High Court was attacked on social media by number of persons including one member of Parliament belonging to the party in power…

This court had asked that State counsel may come prepared on the point as too whether in the circumstances which are prevailing, court can record a finding whether there is Constitutional breakdown.

The State counsel participated on number of days in present proceedings, even thereafter no objection was raised and now the present IA is filed with prayer to recall the earlier order (dated October 1).

This Court is of the view that if a party is aggrieved by an order of the court, it cannot be allowed to question the same before the same court. There was no embargo on the State to approach the superior court, but they continued to appear before us only with a view to drag the matter. Therefore, we reject the present application for recall."

At this juncture, Government Pleader, Senior Advocate SS Prasad pointed out that it was wrong to say that he dragged the matter for several days as on each of the hearing, the Court had recorded that proceedings were subject to hearing on the question of constitutional breakdown.

SS Prasad argued that correct facts and docket proceedings are not being recorded.

Govt contests court's power to suo moto examine constitutional breakdown

Govt Pleader SS Prasad submitted that the Court lacks jurisdiction to consider the suo moto question regarding constitutional breakdown of the State machinery. He submitted that the term 'constitutional breakdown of State machinery' used in Article 356 is not defined and as per previous judgments, the same occurs when there is political turmoil, judicial anarchy or legislative failure in the State.

Prasad also submitted that the present petition does not raise any question regarding breakdown of state machinery and the Court should refrain from expanding the scope of hearings. Reliance was placed on AIR 1988 SC 1883, Kehar Singh v. State of Delhi, where it was held as under:

"This Court has frequently emphasized that the decision of the Court should be confined to the narrow points directly raised before it. There should not be any exposition of the law at large and outside the range of facts of the case. There should not be even obiter observations in regard to questions not directly involved in the case. These principles are more relevant particularly when we are dealing with constitutional questions. I should not transgress these limits."