Issue 7 Vol I, January 15, 2006

Law and justice

India: Parliament and Judiciary Fight over Jurisdiction
Joginder Singh Toor

THE Constitution that the people of India gave unto themselves on January 26, 1950, guaranteed certain Primary rights (not all) as fundamental, so as to have social, economic and political equality. It also ensured separation of powers based on theory of checks and balances that each wing of the State was independent, virtual and effective. All the three wings were provided well defined domains in the sphere of legislation, executive and judicial. Unambiguous jurisdictional lines were drawn after detailed discussion in the Constituent Assembly.

While defining the powers of the Supreme Court in the Constitutional frame work, much time was spent on deliberating (i) How to ensure the guarantee of fundamental rights; (ii) The powers of the highest court in examining the constitutionality of the law falling in the hit of Art. 13(2) to ascertain if the law is against or in conformity with the spirit of the Constitution and if not to declare it null and void. (iii) To inform the executive head The President of India, when so asked, as to the correct legal position on a certain point of law. (iv) To exercise original jurisdiction in the inter-state disputes; (v) and to exercise final check on civil and criminal disputes between private parties or against States or the Central government.

The spheres are clearly defined; the parameters are well laid for the exercise of respective jurisdictions. Still there are areas where encroachment of other wing's jurisdiction is complained of, such as (i) Directions to the executive suo motto or in public interest litigation to do or not to do certain administrative acts; (ii) Direction to the State Assemblies to conduct themselves in a way directed by the court.

The Supreme Court of India has time and again declared laws enacted by the legislature as unconstitutional, or policy of the State as arbitrary or violative of a provision and struck these down. Legislature has rendered the judgments for equally number of times, ineffective by way of legislation in exercise of  respective jurisdictions without much objection.

The most disturbing controversy recently raked up or having arisen is the controversy on the directions issued by the Supreme Court of India to various legislative Assemblies to conduct themselves in a manner advised/directed by the court.   Som Nath Chatterjee Speaker Lok Sabha and a prominent Supreme Court lawyer took strong objection to it, describing it an encroachment on the rights and the way of functioning of the legislatures. He even convened a conference of the Speakers of the State Assemblies in India to discuss the issue where deliberations were hot but serious and resolution though mild in tone yet indicative of strong resentment, the essential out come.

"The Presiding Officers of legislative bodies in India having assembled in their emergent conference in New Delhi on 20^th March, 2005 taking note of the interim order dated 9^th March, 2005 passed by the Supreme Court.......

(i) extending the session of the Jharkhand Legislative Assembly by one day i.e. 11th March,2005, for putting the motion of confidence to the vote of the House on the day;

(ii) emphasizing that the only agenda on 11th March, 2005 would be a floor test between the contending political alliances;

(iii) further emphasizing that the proceedings of the House shall be totally peaceful;

(iv) directing the Speaker, Pro-tem to announce the result of the floor test faithfully and truthfully; and

(v) further directing the Speaker, Pro-tem to have the proceedings of the House video-graphed to guard against foul play;

Also taking note that a similar interim order passed earlier on 24^th February, 1998, in respect of political development in Utter Pradesh, the Supreme Court had directed that......

Further taking note that the High Court of Allahabad, Kerala and Andhra Pradesh have, in the past, passed orders in Keshav Singh's case, R.Sudarsana Babu's case and Eenadu case respectively, touching upon the powers of the House to punish for breach of privileges and contempt of the House and the power of the Presiding Officer to regulate the proceedings of the House,.....

Resolve that there must exist mutual trust and respect between the Legislature and the Judiciary and also an understanding that they are not acting at cross purposes but striving together to achieve the same goal..... It is imperative to maintain harmonious relations between the Legislatures and Judiciary.

The controversy is dogging with the expulsion of 11 members of Parliament on the charge of having accepted money for asking questions in the Parliament. Some of the members having approached the Delhi High Court, the jurisdiction of which has been questioned by the Speaker, Lok Sabha by going to the extent of saying, "I cannot stop anyone from going to court but according to me, the courts have no jurisdiction at all in the matter...Any order is not binding. I am not surrendering or submitting to the jurisdiction of the courts at this issue at all."

The Speaker of Lok Sabha has received notice from Delhi High Court on petition filed by M.P. Lal Chandra Kol. Some other members have also moved the High Court.  The Speaker has called an all parties meeting to discuss the issue. It could take any turn. Who has the ultimate powers to suspend or expel members? Suspension is a routine matter in many state legislatures. But expulsion for rest of the term has not been clearly decided as two high courts have taken different views earlier. In fact, discipline within the assemblies and parliament is the domain of the respective houses. The controversy in this realm of Constitution is critical and deserves the attention of all concerned. Demarcation of respective spheres of all the three wings of the State either needs a re-look or re-appreciation so as to ensure the intended balance in the Constitution by adhering to the checks provided.

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