 | | JUDICIARY
The Supreme Court shall have all and every power to ensure attendance before it, call for any document or record and can punish contempt.
FROM ARTICLE 142 (2) | | EXECUTIVE
The council of ministers headed by the prime minister will be the key executive whose advice to the President shall not be enquired into by courts.
FROM ARTICLE 74 (1) AND (2) | | LEGISLATURE
The powers, privileges and immunities of each House and its members shall be decided by Parliament which will make laws to regulate itself.
FROM ARTICLE 105 (3) | | It's a confrontation that is rapidly assuming grave dimensions. Last week's Supreme Court (sc) ruling questioning some aspects of the Government's decision on OBC quotas in educational institutions is merely the latest in a series of similar confrontational issues which has brought the judiciary and the legislature into direct conflict and resulted in a turf war with the executive accusing the judiciary of usurping its powers. The judiciary versus the executive or legislature is a battle which is not new but this time, the confrontation is unprecedented with both the sides taking the demarcation of powers to a flashpoint. The first salvo was fired by Lok Sabha Speaker Somnath Chatterjee who accused the judiciary of interference in legislative matters and stated publicly that "everyone has to remain within the Laxman Rekha of the Constitution." He was referring to the judicial deliberations over the termination of 11 mps in the cash-for-queries scam and has raised the stakes higher by refusing to entertain summons by the Supreme Court.
| | RESERVATION | | JUDICIARY
Aug '05: SC takes private educational institutions out of quota net. June '06: PIL against quota in central institutions. Students call off strike on SC assurance. Oct '06: Apex court asks for bill details in a sealed envelope.
WANTS TO KNOW THE EXACT OBC POPULATION TO DECIDE ON THE QUANTUM OF QUOTA | | LEGISLATURE
Jan '06. Parliament amends Article 16 to enable OBC quota. May '06: Govt forms oversight panel in response to SC assurance. Centre divides the bill in two-private institutions bill to be introduced later
WANTS TO KNOW THE EXACT OBC POPULATION TO DECIDE ON THE QUANTUM OF QUOTA | | The Left has virtually led the anti-judiciary chorus with Brinda Karat, CPI(M) Politburo member, being characteristically scathing in her criticism. "There is increasing interference by the judiciary in matters of legislature," she says. The face-off has blurred the lines between judicial activism and executive power and the tension is palpable. To the legislators, it amounts to interference in the process of legislation itself. The issues involved are contentious and controversial. On the reservation issue, the sc wants to know whether the Bill relies on dependable statistics regarding the caste composition in the country. It comes on the back of the Office-of-Profit Bill and the Delhi Government's run-ins with the judiciary over sealing of illegally commercialised residential properties where judicial pronouncements have irked the executive and legislature like never before. Congress' Parliamentary Affairs Minister Priya Ranjan Dasmunshi has tactically opposed judicial review of the quota bill declaring: "The report of the standing committee will be put in Parliament first which has the authority to make laws." More fireworks are expected. "Laws, as I perceive, are not judge-made but are principles of decisions based on judicial interpretation of laws enacted by Parliament," says Chatterjee. The sc is equally sure that it can review any law made in the land. | | DELHI DEMOLITIONS | | JUDICIARY
Feb 16, '06: SC orders sealing of over 50 per cent commercial properties. Drive begins in March. Aug 1, '06: SC decries ad hoc approach, declines moratorium. Sept 18, '06: Sealing begins, results in 3 deaths. Put off till Jan 1.
WANTS PERMANENT SOLUTION TO RAMPANT COMMERCIALISATION OF RESIDENTIAL AREAS | | EXECUTIVE
Urban Development Ministry proposes mixed land-use law and then six-month moratorium. May 30: Delhi's Spl Provision Act grants one-year relief. Sept 7: Centre amends Masterplan to allow change in land use.
POLITICIANS STAND BY THEIR RIGHT TO LEGISLATE IN FAVOUR OF PEOPLE | | The first wave of judicial intervention in legislative matters came in the mid-1990s when four important interpretations of the Constitution overturned the then existing balance of power. Various high courts reinterpreted Article 356 so that blanket powers of governors to dismiss state governments were curtailed, the power to punish for contempt of court under Article 142 was expanded beyond court rooms and "inherent powers" of the sc was used to cover a wider range of subjects. But the most important change came in the process of appointment of judges under Article 124 and 217 in 1994. Executive's exclusive right was diluted and now the SC's collegium-consisting of Chief Justice of India and four senior-most judges-has the ultimate say. The executive may stall the appointments of those it doesn't want but cannot foist those it wants on the benches. This follows attempts by late prime minister Indira Gandhi to pack the benches with her acolytes that led to infinite pressure on the judiciary. The executive has had to withdraw from transferring of judges. All this may have imparted a sense of security and immunity to the judiciary from political interference but it has also left the politicians insecure. The face-off stems from this insecurity and, more importantly, the steady fall in the standards of administration and governance. This has led to large numbers knocking the doors of courts with cases and has prompted activists to move public interest litigations (PIL) to make the executive answerable. Standard executive practices have come up for judicial review and reproach. Predictably, politicians have bristled at the directions to the administration as they see this as encroachment on their turf. A case in point is the sealing drive in Delhi which is symptomatic of the failure of governance. Residents' welfare associations approached the courts alleging gross violations of land-use norms. The Delhi High Court literally opened a pandora's box when it ordered the municipal corporation to clean up its act and identify illegal buildings. This led to the termination of few engineers on the charges of corruption as more than 80,000 structures were identified as illegal. The court even appointed observers and commissioners to oversee demolitions. The drive threatened to snowball into a major law and order problem as Seelampur locality in north-east Delhi erupted and three people lost their lives. The Government reacted with a post facto retrospective solution through hurried notifications and new norms. These were questioned by the apex court. The result is that even those who wished to abide by the law found themselves caught in the tug of war. "It is unfortunate but the court has even refused to acknowledge the fact that several thousand people had submitted affidavits to voluntarily move out subject to change in law. Now the law is set to change and the ones who had submitted affidavits have become victims," says lawyer Ajay Bahal. Meanwhile, BJP MLA Harkishan Singh Balli, who broke the seals on several establishments, has submitted a different prayer in the sc. He asserts that courts cannot appropriate the function of the executive. "It is the function of the executive to make master plans and implement them, the courts should adjudicate on whether they are right or wrong," he says in his submission. He is supported by former additional solicitor general K.T.S. Tulsi. "Judiciary should go after established wrongs, instead of going after implementation and enforcement. It cannot suddenly become the third chamber of legislature," he says. Has the judiciary transgressed? The answer would vary from issue to issue. Nearly a year after the cash-for-query expose, almost two crore people in 11 parliamentary constituencies remain unrepresented in Parliament thanks to the stand-off on whether the Lok Sabha was within its rights to terminate the memberships of these mps. Former chief justice of India V.N. Khare says, "Under Section 15 of the 44th Amendment, conventions of the British House of Commons are in force and Parliament is well within its rights to suspend or terminate membership of its elected members." Ironically, the mps feel differently. They have approached the courts citing lack of due process and opportunity to present their case. Incidentally in 1951, H.G. Mudgal was expelled from Lok Sabha in the country's first cash-for-query scam. Then too the issue of due process was raised but was laid low by the legendary Speaker G.V. Mavlankar: "The procedure of forming a special committee is a proper one and the House can expel any of its members." Later in 1978, Indira Gandhi was similarly expelled for intimidating officials of Lok Sabha but was taken back after a year. Neither had approached the judiciary for redressal. That now is not the case. Former Madhya Pradesh advocate-general Vivek Tankha, who is appearing for one of the petitioners Ramsevak Singh, believes: "The sc is well within its rights to consider the application. The point of law has to be settled and a precedent created." While the five-member constitutional bench decides the petition by tainted mps, 11 constituencies will remain unrepresented even though the Constitution prescribes elections within six months.
| | | The Bush Boost
Assemblies have had their own share of fireworks
It is not without reason that Uttar Pradesh is called a 'laboratory' where ideas are tested and perfected before others follow them. On March 4, 1964, the Privilege Committee of the state Assembly sentenced to jail one Keshav Singh of Gorakhpur for distributing derogatory pamphlets against legislator Narsingh Narain Pandey that led to contempt of the House proceeding against him. His advocate B. Solomon moved the Allahabad High Court saying the order was illegal and mala fide and a two-judge bench granted him bail. This provoked the Assembly to direct the two judges along with Solomon to be brought before the House for contempt. In turn, a full bench of the high court ordered restraining of the speaker from issuing warrant against judges. Meanwhile, Solomon moved the high court seeking a writ of mandamus against the speaker and others for having committed contempt of the court. As the full bench decided to prohibit the House from moving further, it withdrew the custody order but did not drop the contempt case against the judges. The matter was referred to the president, and then Supreme Court which said that it had the power to review warrants issued by the legislature. Another point of conflict emerged when the anti-defection law was passed in 1985 giving powers to speakers to determine 'defection' cases. From Mizoram to Goa, Nagaland, Manipur and Uttar Pradesh, it has led to many controversies with defectors approaching the court over the decision of the speakers.
-By Farzand Ahmed | |
There is a political angle too. There is fear, albeit hypothetical, that a majoritarian government could well use brute strength and terminate memberships. Although as Tulsi says, "Such an action can be struck down as mala fide which is against the spirit and basic structure of the Constitution" fact is it is not an unreal fear. Inder Singh Namdhari, former speaker of Jharkhand Assembly, had issued notices of suspension to three independent MLAs including Chief Minister Madhu Koda when Arjun Munda's government had run into trouble. The mps' case though is not the only instance of judicial intervention on matters conducted in the House. Various state assemblies and high courts are in a similar face-off in their own orbits. Former Uttar Pradesh Assembly speaker Kesarinath Tripathi had withheld a decision on floor crossing of 40 BSP MLAs almost interminably. Former Madhya Pradesh Assembly speaker Sriniwas Tiwari had similarly dismissed the secretary and appointed 600 new staff members. Tiwari would not respond to court summons claiming legislative immunity. "It's about time there was a unitary response by the legislature to make sure its supremacy is retained," says he.
The changing nature of politics has added to the expanding range of issues. With the dawn of the coalition era, ruling regimes are required to keep more than just their own flock happy and have to create shelves of pelf. The Constitution lays down under Article 102 and 191 that mps and MLAs should not hold any office of profit except the ones expressly exempted. But Parliament and several state assemblies have through amendments virtually diluted the original thought behind the provision: that elected representatives should not look for an office of profit but concentrate on legislation. Earlier this year, Parliament passed a new Office-of-Profit Bill protecting mps cutting across party lines and sanctioned 56 new posts to accommodate various political hues and pressures. Although the President did return the Bill once with queries, it was passed. Now the sc is seized of the matter thanks to a PIL which questions the ad hocism and the legality of the OOP Act. As Congress general secretary Digvijay Singh put it: "There is a petition pending in the Supreme Court against the feasibility of the Bill itself." Incidentally, the Election Commission, which is the constitutional watchdog of the critical Representation of People Act, is yet to articulate a stand on the issue but sources say there is a serious discussion within the commission to view it as a process of circumventing the provision of 15 per cent limit on ministerial offices. Uttaranchal, for instance, has more than 100 individuals with the rank of a cabinet minister. If the court were to strike down the OOP Bill, 40 mps including Chatterjee could face loss of membership. It is not surprising then that this threat has further fuelled the face-off.
| | OFFICE OF PROFIT | | JUDICIARY
March '06: Jaya Bachchan's membership of Rajya Sabha terminated by EC citing court precedents on OoP. SC is considering a PIL on the Constitutional validity of the OoP Bill itself.
ANY LEGISLATION HAS TO CONFORM TO THE CONSTITUTION IN LETTER AND SPIRIT | | LEGISLATURE
March '06: After Sonia Gandhi resigns, negotiations begin to save 12 Left MPs and several MLAs across the political spectrum. May-Aug '06: 56 offices exempted from OoP despite objections from the President.
MPS BELIEVE DEFINING OFFICE OF PROFIT IS THE PREROGATIVE OF PARLIAMENT | | Some conflicts though stem not out of issues of turf but of management of political interests. Take the case of clemency petition. Former Andhra Pradesh governor Sushil Kumar Shinde's decision to grant clemency to Gowru Venkata Reddy, a Congress activist in the state in incarceration, has led to another landmark judgement by the apex court. The power to grant clemency is not absolute and has to be unbiased and reasons have to be explained, the sc says while Shinde seeks shelter under Article 161. "I had exercised my powers under Article 161 which to the best of my knowledge is not questionable," says he. Article 72 (3) says, "Nothing shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force." But a two-judge bench of Justice Pasayat and Justice Kapadia feels it is open to judicial review if the decision is unexplained and is found to be against the basic structure of the Constitution. The "basic structure" theory was enunciated in 1973 in the Keshvanandan Bharti case and has stood the test of time. It prohibits Parliament from tampering with the basic structure of the Constitution both in letter and spirit through amendments or orders. The Reddy case has had an immediate reflection in the Law Ministry's recommendation to the President that there are no visible reasons for grant of clemency to Mohammad Afzal, prime accused in the Parliament-attack case. | | CASH FOR QUERIES | | JUDICIARY
High courts not unanimous over the expulsion of MLAs as exclusive Assembly domain. SC admits expelled MPs' plea on House privilege of self-regulation.
SC BELIEVES IT HAS THE CONSTITUTIONAL MANDATE TO REVIEW THIS DECISION | | LEGISLATURE
Dec '05: 11 MPs caught on camera accepting bribes are expelled after an all-party meeting. Speaker refuses to answer court summons on process of expulsion.
LEGISLATORS CALL THE COURT MOVE UNNECESSARY JUDICIAL INTERFERENCE | | Not everyone is convinced of absolutism though. For instance, the decision of the sc in the quota case is now being questioned. The point being made is that while the courts can review a law, it can be only when the law is completely passed by Parliament and not while it is yet seized of the matter in its standing committee. Former CJI J.S. Verma who created a benchmark with his judgement in the case involving transfer of Central Bureau of Investigation (CBI) chief Joginder Singh in 1997 after which the CBI has been virtually under the apex institution, cautions against indiscreet interference through judicial review. "The power of judicial review is there under schedule IX but it has to be exercised with extreme caution," he says. More so because the quota plank is critical to caste-based regional parties. After all, social engineering is also ballot management. By asking for details in a sealed envelope, the sc has drawn predictable responses. Terming the judgement as an "encroachment on Parliament," a CPI(M) statement says, "The courts can examine the Constitutional validity of a legislation, but, in no case, can they pre-empt and influence its nature or policy." | | CLEMENCY | | JUDICIARY
High courts have rarely questioned the Governor's right to pardon under Article 161. Oct '06: SC curtails the right to pardon in the Gowru Reddy case.
SOUND REASON, NOT CASTE OR RELIGIOUS CONSIDERATION, TO BE BASIS FOR PARDON | | EXECUTIVE
Article 72 & 161 give rights to President and Governor to pardon, reduce court sentences. 40 death row prisoners still await presidential pardon.
RIGHTS ARE ABOVE COURT JUDGEMENTS, HENCE OUTSIDE JUDICIAL REVIEW | | An interesting facet of the face-off is the balance of public opinion and perception. Many see the judiciary as the last post of hope and votaries of judicial activism point out that the rush of PILs is evidence of a crumbling system and vindication of the credibility of the judiciary. "Many remarkable decisions have been pronounced for the benefit of people, otherwise we would still have coal and mining mafia destroying the jungles and the mangroves. CNG would not be a reality," says senior advocate Diljeet Titus who fights dozens of Pro Bono cases every year. Clearly, the political class, caught up in the compulsions of coalition, needs to wake up to the falling standards of governance and restate its belief in the rule of law. The judiciary itself is advised caution by former CJIs like Khare, Verma and A.M. Ahmadi. It cannot start treating itself on a higher pedestal than the one it has been put on by the Constitution. Courts are hearing cases on everything from stray monkeys in Lutyen's zone to who should get which bungalow. The founding fathers of the nation had ordained through the Constitution a clear separation of powers of the three pillars of governance. It is important for the health of the nation that the harmony is restored.
| | GUEST COLUMN: JUSTICE VISHVESHWAR NATH KHARE | | | Constitution Supreme
It's all about public good and not individual or institutional power
 Our Constitution is a very well-built document. It assigns different roles to all three wings of governance-the legislature, the judiciary and the executive. There is no ambiguity about each wing's powers, privileges and duties. Parliament should enact laws, judiciary has to interpret them and the executive has to enforce them. There is supposed to be no overlapping or overstepping. A conflict can, nevertheless, arise as in practical application of statutes there can sometimes be overstepping. Who then is to decide? Who has been entrusted with the responsibility of conflict resolution in such cases? Ultimately it has been left to the judiciary to decide whether indeed there has been a trespass on each other's territories. And while taking the decision, the judiciary has to keep true to the tenets of the Constitution. But what if the verdict oversteps? The decision of the judiciary, while being in consonance with the existing laws, may appear to be against what Parliament thinks. It is then, it has been envisaged that Parliament should enact. It can remove the basis of the judgement itself. Under Article 121, the conduct of a judge cannot be debated in Parliament. There is a procedure for impeachment. Similarly under Article 122, the proceedings of Parliament cannot be questioned by the judiciary-even if a point of order has been given in Parliament which appears contrary to the statutes. Suppose a House committee moves a bill, it can't be challenged in the courts on the grounds that proper procedure has not been followed. Similarly, a bill once passed can't be bad in law simply because some procedures were not followed. The resolution over the President or the governor's address can't come in for judicial scrutiny. The only proviso to all this is what I call the "substantive provisions" of the Constitution. The rights of the legislature are limited only by the book itself. And the book ordained the judiciary to strike down laws passed outside the substantive provisions. Such a breach by Parliament can occur if it happens to legislate on a subject in the state list. The judiciary can then intervene, otherwise there is no intervention in the law-making process itself. The courts cannot call for material related to any bill under consideration, nor question the procedure being adopted. The contents of a bill are also privileged knowledge of those entrusted with moving it. I have heard arguments based on extracts from the Constitution claiming the superiority of one wing over the other over some pretext. This is absurd and misses the point completely. It should be clear to anyone interested in the high ideals of democracy that the Constitution enjoins upon each wing to perform its duties to the best of its ability with a sense of purpose and honesty. The Constitution should be honoured in its letter and spirit at all times. In the end it is about public good and not individual or institutional power.
The author is former Chief Justice of India | | Index
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"Judiciary should go after established wrongs, instead of going after enforcement."
"The point of law in the MPs' expulsion case has to be settled by SC and a precedent created." 
"There is increasing interference by the judiciary in matters of legislature." 
"The report will be put in Parliament first which has the authority to make laws."
