Dr K L Bhatia
The Division Bench judgment of Jammu Kashmir High Court of 93 pages of May 5, 2020 written incisively as well as intelligently in flawless expression is remarkable and magnum opus of judicial governance. The judgment is a mile stone in the judicial history of Jammu Kashmir since it does complete justice, that is, the legacy of autocratic Darbar Move has no place in constitutional democracy. Therefore, the High Court rings the bell, in my perception, in the historic phrase of Justice Vivian Bose “Flashing the flaming sword of its inspiration” to arrive at just ends by just means.
The practice of working of secretariat move is summer functioning at Srinagar and winter functioning at Jammu should have come to an end with the end of feudalistic culture, but, however, continues for the reasons best known to the political despotic behaviouralism contra to constitutional democracy. This practice does not prevail anywhere in any federal unit of Indian federal structure nor in any constitutional system of the world. The expression Darbar is a Persian term which means the King’s or the Ruler’s noble court or a formal meeting where the King at Emperor’s pleasure held all discussions regarding his State. The expression was used in India while referring to the Ruler’s court or feudal levy as the latter came to be ruled and later administered by foreigners. During British rule in India the expression came to be applied to ceremonial gatherings held as demonstrations of loyalty to the Crown. It discerns that Darbars are relatable to ancient emperors and Kings; its practice in Indian polity has long come to an end with the adoption, enactment and enforcement of the Constitution of India with the sole exception of erstwhile Jammu Kashmir State even in the Union Territory of Jammu Kashmir after the Reorganisation of Jammu Kashmir Act, 2019. Paradox!
The judgment is from the precept of good governance and its relevance to the advancement for societal transformation in the administration of good governance and administration of justice in the new millennia of constitutional democracy. And as such, the court while relying on Anoop M. S. Manelil House v. State of Kerala, 2017 SCC observes: “Good governance, a subset of governance, manages the public resources effectively, efficiently to cater to critical needs of society. True, effective democratic forms of governance rely on public participation, accountability and transparency”.
In the backdrop of this, the court examined in depth the questions in conviviality pertaining to the issue of impending Darbar Move, viz., Can any Government afford the annual expenditure of atleast Rs.200 crore to sustain and perpetuate an arrangement of bi-annual shifting of its Capital two times a year, which originated in 1872 from the discomfort of the then Ruler of Jammu and Kashmir with the harshness of the winter in Kashmir and harshness of summer in Jammu? Is this acceptable in a hopelessly fiscally deprived Union Territory with severe underdevelopment and people deprived of basics which are essential part of their fundamental right to life and personal liberty including human dignity under Article 21 of the Constitution of India? Whether emotional rhetoric of groups of people could override public interest, imperative considerations of efficiency in governance, continuity in administration, concerns of access to justice, and the entitlement to the guaranteed fundamental rights under Part III of the Constitution of India? How to resolve the critical issues related to the origin of this arrangement; its perpetuation; the manner of implementation thereof; the expenditure thereon; its impact on the judiciary, the people, administration and governance; government employees; the human and social cost thereof? Whether emotional rhetoric of groups of people could override public interest, imperative considerations of efficiency in governance, continuity in administration, concerns of access to justice, and the entitlement to the guaranteed fundamental rights under Part III of the Constitution of India? Did the arrangement of Darbar Move originate from considerations of public welfare, good governance or any needs of efficiency in administration?
In the opinion of the court the issues raised certainly impacted Constitutional and basic human rights of the residents of the Union Territory of Jammu Kashmir; its efficacy; the basis of this practice of Darbar Move; its impact on the stakeholders and society; its cost – financial, economic, social, psychological; the resultant non-functioning of the administration to enable the Move as well as the impact on governance in the region from which the Darbar moves.
The court observes that there is neither historical treatise available giving detail of the origin as well as reasons of the Darbar Move nor official document or empirical or heuristic evidence could be traced out regarding the Darbar Move except the fact that the arrangement of the shifting of Government of Maharaja Ranbir Singh reportedly started in 1872. The court has thus observed that clearly, public interest, lending efficiency to administration or facility of governance was no part of the reason of the decision for shifting of the capital. Evidently, at the time of its commencement in 1872, this move of the administration from Srinagar to Jammu and Jammu to Srinagar involved a small number of employees and infrastructure in a few cart loads.
Be that as it may, the present arrangement is bereft of logic, reality and policy and as such Darbar Move entails a crippling disruption of working for several weeks at political elites’ pleasure.
In the backdrop of this, what the judiciary should do? Should the judiciary restraint in making the judicial review of administrative convenience or should it make judicial review of administrative, governmental and secretarial recidivism? The judiciary has to be ‘creative’ in its craftsmanship in the matters like the one under scrutiny where there is no ‘policy guidelines’ in the pandemics of Darbar Move. While exercising the powers of judicial review of administrative or legislative decisions, the judiciary has to maintain the balance of power between executive, legislative and judicial functions ingrained in the Constitution of India inasmuch as the Apex Court has observed in Aravali Golf Club v Chander Hass, (2008): “Under our Constitution, the legislature, the executive and the judiciary all have their own broad spheres of operations. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction. Judges must know their limits and must not try to run the Government. They must have humility, and not behave like emperors. There is broad separation of powers under the Constitution and each organ of the state — the legislature, the executive and the judiciary — must have respect for the other and must not encroach into each other’s domain”.
It is obvious that the judiciary is not representative body; the essential quality of the judiciary is detachment founded on the genesis of independence. Therefore, conscious of their limitations, the DB has handed down the decision as to what the court thinks judiciously regarding the long abandoned practice of Darbar Move and what does it expect from the judicious mind of the Executive to be out of Shakespeare’s enlightening espouse advocacy “to be or not to be”. In the challenging scenario, the DB’s highly informative perspective and instructive justice in its majestic language is: “From the facts placed before us regarding the Darbar Move, the disregard of public interest in its origins and implementations, its adverse effects, the huge fiscal, social and economic costs, amply manifest that the propriety, feasibility and efficacy of the arrangement is one such matter ‘overlooked and forgotten’. It is evident from the facts revealed that the issue, its objective, need, efficiency, feasibility, desirability, impact on administration, governance and public interest have never engaged the attention of the concerned and competent authorities. It appears that an “arrangement” commenced by the Maharaja because of physical discomfort with the Kashmir winters, has simply continued without consideration of the needs of the people of Jammu and Kashmir. The material placed before us manifests that there has been no application of mind to the changed circumstances because of technological and scientific advances. Our judicious conscience compels us to “ring the bell” else we would fail in discharging our judicial duty or to perform our Constitutional function as demanded in the interest of the Nation and the people of Jammu and Kashmir especially its common woman and man, the poor and the weak. We hasten to add that conscious of the limitations of our jurisdiction, we shall confine ourselves to “ringing the bell” without anything more.”
How far a fiscally constrained Union Territory of Jammu Kashmir can afford the expenditure on the Darbar Move? The under mentioned observations in the form of conclusions of the DB must be conceded as sufficient narrative for the concerned authorities to take conscience and realistic action in the advanced as well as progressive scientific and technological scenario to abandon the outmoded and obsolete practice of Darbar Move:
* No reasons or grounds are forthcoming for enabling and supporting considerations of administrative efficiency, legal justification or Constitutional basis for effecting the Darbar Move.
* Both Jammu and Kashmir regions equally require administration and governance round the year without interruption.
* For a period of almost six weeks annually, the entire governance and administration in the Union territory comes to a grinding halt creating a governance deficit.
* Given the modern weather control mechanisms, clearly the consideration of extremities of weather does not hold weight today.
* Valuable documents, sensitive government documents and resources of the Union Territory are put to tremendous risk in their transportation and this practice may have the consequences of imperiling State and National security.
* On account of technological advancements and availability of electronic modes, maintenance of record and communication, there is no need for physical conveyance as assets.
* Information technology integrates disjoint units into single units virtually. Therefore, even if the secretariat and Departments were divided and placed at different locations, they could be virtually unified into a single Secretariat with minimal movement of human resources.
* In view of the large scale logistics involved today, the economic burden of the Darbar Move is not justified by the original considerations of the weather.
* Thousands of Government employees are compelled to live apart from their families for six months at a time resulting in physical and emotional pressure not only on the employees but spouses, parents, children and dependents. This has an exponentially negative impact on emotional health of the employees and their families and would contribute to dejection and lack of interest in assigned tasks of the Darbar Move employees.
* The administrative requirement to effectuate Darbar Move biannually is manifestly arbitrary and is hit by Article 14 of the Constitution of India.
* The Darbar Move places a huge burden on the police, security forces and undesirable cost (of both financial and manpower) to the Nation and to the public exchequer which ought not to be countenanced in public interest.
* Right to life, liberty, dignity, education, health, good environment are adversally affected. Valuable resources of the State — financial and physical — cannot be diverted to completely non-essential usage.
* There is unwarranted disruption of movement of traffic and personnel on the National Highway for four days on each Darbar Move adversely impacting public interest.
* The expenditure involved is in the nature of misutilisation of valuable public resources which are urgently required for public purpose to address COVID-19 issues.
* Looked from any angle, the Darbar Move results in wastage of tremendous amount of time, efforts and energy on inefficient and unnecessary activity. It nurtures inefficiency and leads to lack of governance.
* No reason or justification at all is available for requiring the judiciary to shift with the Darbar Move since it impacts justice dispensation and impedes judicial administration.
* The Darbar Move causes delay in justice dispensation on account of non-availability of government records to the pleaders in either region for six months, which per force compels them to seek repeated adjournments.
* Therefore, rationalisation of the Darbar Move is urgently required that will save money, resources, time, manpower to be utilised towards the welfare and development for the progressive movement of the Union Territory.
Now, it is within the domain of the administration and Executive-Legislature duo (President of India with the aid and advise of his Council of Ministers including the Lt. Governor of the Union Territory of Jammu Kashmir as his representative) , and rightly so, to ring the bell to their best wisdom on the legally and constitutionally impermissible Darbar Move practice within the permissible mandate of the Constitution keeping in view the solemn constitutional duty, the interest of the Union Territory of Jammu Kashmir, the larger interest of its people.
(The author is former Dean Faculty of Law and Founder Director The Law School University of Jammu; Professor National Law University Jodhpur)
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