The Prorogation Enigma: A Comparative Perspective of Prorogation in the United Kingdom and India

Akshat Trivedi


The recent decision of the UK Supreme Court in R v. The Prime Minister[i] was a landmark judgement in terms of common law jurisprudence on Parliamentary prorogation and its judicial review. Herein, the Supreme Court was called on to examine the constitutionality of the advice tendered by Prime Minister Boris Johnson to Her Majesty the Queen, to prorogue the British Parliament from 10-24 September 2019, before the very crucial period of the intended Brexit deadline of 31st Oct. This order of Her Majesty was challenged in two different High Courts of the country, leading to an appeal in the Apex Court of the UK. Seeing the volatility of the matter, a full bench of 11 Justices of the UK Supreme Court was summoned to decide the case. This article intends to provide a brief comparative analysis of the rulings of the UK Supreme Court and its entailing repercussions/ comparisons from other common law countries, such as India.

Article 85 of the Indian Constitution lays down the procedure for the prorogation of the Parliament. Under this article, the President is empowered to prorogue the Houses or either House, from “time to time”. Since it is the Council of Ministers who advises the President under Art. 74, the political executive is responsible for such a prorogation. Further, drawing stark similarities, this process is almost congruent to the process adhered to in the United Kingdom. Except there it is the Privy Council which advises Her Majesty to convey order to such extent. And like other common law procedures, this method has been adopted based on previous practices & conventions. So, in both jurisdictions, the Executive, and not either House of the Parliament has a role to play in determining the prorogation.

Moving on to the judgement analysis, the UK Supreme Court framed the following issues for consideration in the matter. Each issue is followed by a legal finding of the UK Supreme Court, accompanied by a comparative example from Indian jurisprudence.

1. Whether the advice tendered by the Prime Minister to Her Majesty to prorogue the Parliament, is justiciable by the Court?

The High Courts were divided in their judgements on this issue.[ii] The Apex Court, however, held that it has had supervisory jurisdiction over the actions of the Government and the Monarch since the inception of judicial intervention, dating as back as 1611. Further, the Court has declared that it has the inherent power to examine the validity of the prerogative of the Executive and the limits of such a prerogative.

The Indian jurisprudence on this aspect has been quite analogous, even when the justiciability of the advice tendered by the Council of Ministers to the President was barred by the introduction of Article 74(2).[iii] The Supreme Court in its interpretation of the said provision in a case[iv] has unanimously held that the Court may scrutinize the material that the President has relied upon to take the impugned action.[v] Therefore, this decision had enlarged the scope of judicial review of the President’s satisfaction based on the advice of the Council of Ministers.

2. If Issue (I) is answered in affirmative, what are the limits of the aforementioned power to advise Her Majesty on this issue?

The UK Supreme Court laid down the “reasonable justification” factor to test the validity of the prorogation. If the prorogation led to unreasonable hindering, frustrating or preventing the Parliament from the performance of its duties, then the prorogation shall be declared void. Further, if the said action was unreasonable, then there came no need for the Court to scrutinize the motive behind the Prime Minister’s actions. Had this principle been laid down two decades earlier, the UK would have found itself with a landmark judgement during the Cash-for-Questions Affairs in 1997.[vi]

India’s judiciary has so far, not provided a comprehensive limit on the power of Prorogation, perhaps due to other exigencies already stymying the Parliament! However, in a politically sensitive matter relating to the then Prime Minister[vii], the Delhi High Court has succinctly analyzed the possibility of a limit to the prorogation power. Herein it was clearly averred that the prorogation is a matter of policy of the executive and the courts may not interfere. However, considering lack of mala fides in the impugned scenario, the Court declined to grant a writ to that extent.

3. Whether the advice tendered to Her Majesty and the decision thereafter had the effect of frustrating or preventing the ability of the Parliament to carry out its constitutional functions, without reasonable justification?

The Court held this issue in the affirmative. It opined that the said action of the Prime Minister amounted to preventing the Parliament from legislating during the final weeks before the crucial Brexit deadline. Further, it was without any reasonable justifications and therefore, was liable to be declared unlawful.

A similar situation has never actually arisen in India. Prorogation of the Parliament has never been challenged by itself[viii]. However, the author feels it is high time, that a comprehensive regulation or set of rules is brought to maintain Parliament functioning regularly.

4. If Issue (III) is answered in the affirmative, then what remedies can the Court grant?

The UK Supreme Court chose to leave it to the Speaker and the Lord Speaker to decide what further course of action is suitable for the Houses. This was after it pronounced, that the action of proroguing the Parliament being unlawful, was void and had no legal effects at all.

Conclusion

The impugned judgement was a remarkable and assiduous postulation by the UK Supreme Court. Not only has it jettisoned a constitutional wrong by the Tories Government, but it has safeguarded the sovereignty of the Parliament from the political executive. Furthermore, the apex Court has provided a succinct and comprehensive precedent on Parliamentary prorogation for other common law jurisdictions like India to follow suit.


[i] [2019] UKSC 41.

[ii] The High Court of England and Wales held that this advice was not justiciable in a court of law. Conspicuously, the Inner House of the Court of Session in Scotland on the same day, pronounced that the issue was justiciable.

[iii] Added by the 42nd Constitutional Amendment, 1976. Courts were barred to examine the validity of the advice given by the Council of Ministers to the President by virtue of Art 74(2).

[iv] S.R. Bommai v. Union of India, 1994 AIR 1918.

[v] Ibid, Ahmadi J [para 33], Verma and Dayal JJ [para 48].

[vi] The Cash-for-Questions Scandal broke out in the UK in 1997. Herein, the then Prime Minister John Major, to circumvent the debate in the House on the Commissioner’s report, prorogued both Houses of the UK Parliament; see Charles B Davison, ‘Prorogation: A Powerful Tool Forged by History’ (2009) 34 LawNow 13.

See also https://www.express.co.uk/news/uk/1162365/brexit-news-john-major-boris-johnson-eu-european-union-prorogue-parliament-spt, last accessed on 12/12/2019.

[vii] Dinesh Chandra Pande v. Chaudhury Charan Singh, AIR 1980 Del 114.

The Court has relied on the majority opinion of Justice M Hidayatullah in State of Punjab v. Sat Pal Dang, 1969 1 SCR 478.

[viii] In the endnote above, the viability of the President to act on the advice of the acting Council of Ministers was challenged, leading to examining the prorogation.


The author is a student at Symbiosis Law School, Pune


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