law and justice

Parliament and Judiciary: Conflict over Jurisdiction
Joginder Singh Toor

Should any conflict of jurisdiction between two wings of the State, be debated at all or not, and if so where? India political system faces this dilemma.

The Constituent Assembly debated the issue of jurisdiction between each wing of the State. They were to occupy their respective positions, independent of each other, upholding the sovereignty that lies with the people as per the norms laid in the Constitution and in the event of conflict of jurisdiction or the conflict over observance or non-observance of principles of natural justice who were to decide, was the subject of intense debate.

The expulsion of 10 members of Lok Sabha and one from the Rajya Sabha now under question before the Delhi High Court and the Supreme Court of India has polarised the polity. The notice from the two courts to the speaker has invited sharp reaction. The Speaker of Lok Sabha called an all party meeting on January 20, 2006 and it took the view that the Speaker should not accept the notice or appear in person before the court, maintaining that the move was not "confrontationist" and that the judiciary deserves respect, but there was no super organ (of the State). Each has to be within the jurisdiction defined by the Constitution.

An all-party meeting has unanimously endorsed that the Speaker should neither accept the Supreme Court's notice nor appear before it on the issue of expulsion of MPs in the wake of the cash-for-questions scandal. 25 leaders of all major parties attended the meeting, called by the Speaker. There was near-unanimity on the Speaker's view that the issue was not justiciable and the court should not have entertained any petition challenging the expulsions. The Bharatiya Janata Party took the position that the Speaker should not appear before the court but could send his representative to put across his view. The Speaker asserted that he was the custodian of the rights and privileges of the House and there was no question of his "adopting an attitude of confrontation" with the court but the issue pertained to constitutional rights and obligations. "Even if I go there, the court will not have any jurisdiction. I wish to make it very clear that the purpose is not to create any sort of confrontation with the court."

A stormy petrel of Haryana politics, Hardwari Lal, an elected member of the Haryana Vidhan Sabha faced a privilege notice moved by two members of the Assembly on November 12,1973, for having published two booklets, (1) "A Chief Minister Runs Amuk" (2) "Emergence of Rough and Corrupt Politics in India – Anatomy of a Chief Minister" alleged to contain "derogatory words and phrases" "lowering the dignity of the Speaker, House and the members of the Vidhan Sabha", hindrance in the day to day to day discharge of their duties" "is a breach of privilege and contempt of the House".

The Privileges Committee, returned a unanimous finding that "booklets were written with ulterior motive, to malign and blackmail the members and the Speaker of the House" and recommended his expulsion from the House and his seat to be declared vacant.

The report of Privileges Committee was discussed in the House on January 8, 1975, the motion for expulsion was accepted and the seat was declared vacant. . Hardwari Lal challenged the expulsion in the Punjab and Haryana High Court. A Full Bench of five judges was constituted. The Court's view[ 3 : 2] pronounced that " We allow this writ petition, hold the resolution of Haryana Legislative Assembly dated January 8,1975, expelling the petitioner, to be unconstitutional, illegal and inoperative and as a necessary consequence direct the Election Commission of India not to proceed to fill the vacancy.” The case ended there. No appeal was filed before the apex court.

There is another interesting case from Allahabad where   Keshav Singh, though not a member of the Uttar Pradesh Assembly, was proceeded against by the Assembly, for contempt and breach of privilege, for having published a pamphlet. On being summoned by the Speaker, to receive reprimand, he conducted himself in a way again contemptuous of the House and as such was imprisoned by the House and detained in a Lucknow jail.  An advocate filed a Habeas Corpus petition before the Allahabad High Court that directed the release of Keshav Singh.  The U.P. Assembly passed a resolution on March 21, 1964 directing that the two judges of the High Court, Keshav Singh and the advocate have committed contempt of the House and ordered Keshav Singh to be detained again to undergo remaining imprisonment, and the two judges and the advocate to be brought in custody before the House. The two Judges petitioned the Allahabad High Court challenging the resolution of the House. A full Bench of 28 Judges admitted the petition and issued directions restraining the Speaker from issuing warrants in pursuance of the Assembly Resolution.  The Assembly passed another resolution granting opportunity to the respondents to be heard and till then the earlier resolution was not to be executed.

The President of India made reference under Article 143(1) of the Constitution to the Supreme Court.  The issue related inter alia to the powers of the High Court to entertain a petition of the two Judges and the advocate and the competence of the High Court to pass interim orders. The Supreme Court answered in affirmative that the High Court could do that, but prefixed the condition that the view relates to contempt proceedings by a private person. Answer to other question was again discussed among other points in P.V.Narsimha Rao's case in 1998 where the freedom of speech that is available to members of Parliament under Article 105(1) is wider in amplitude than the right to freedom of speech and expression guaranteed under Article 19(1) (a) since it is not subject to limitations contained in Article 19(2).

Immunity would be confined to liability that arises out of or is attributable to something that has been said or to a vote that has been cast by a member in Parliament, or any Committee thereof.

Two fundamental propositions emerge from the present context. One relates to a larger political framework whether parliament should have the powers to expel duly elected members and thereby arrogate to itself the right to do away basic postulations of elected parliamentary system. A situation could arise when one single party enjoying two third majority decides to expel members of the opposition and thereby establish dictatorship of one party rule without any parliamentary opposition. What checks are there when majority runs amuck?

Second proposition now being hotly being debated in the Indian media and political circles is; whether courts can intervene in any manner when the parliament has expelled some members who were caught on camera for accepting money for asking questions in the two houses of parliament. The political class seems to be wearing around the idea that courts can not question the parliament and its supreme as far its members and their rights are concerned. There is another view that grants parliament the power to amend the constitution, make laws and enforce discipline; yet the courts have jurisdiction to question the acts of parliament. Have the courts not declared ultra virus many acts of parliament?  The courts are to superintend the laws and their implementation and be a check on parliament.

One view is that the speaker instead of rejecting the notices straight as was declared, should respond by sending a representative. But the dominant mood is not to acknowledge any interference of the courts in the working of the parliament as it represents the sovereign will of the people and is above judicial scrutiny.

Questions larger in amplitude and dimensions are disturbing the sensitive minds relate to check on arbitrary powers, by an absolute majority; an ulterior design depriving an innocent but determined opponent not only his rights as member of the House but disfranchising him, disabling him to contest any election or orders like that of U.P. Assembly to produce Judges before the House in custody, or the alike.  Is there any scope for keeping some doors open for inter-se check of each other's powers?

The paramount question is the jurisdiction of the Supreme Court to go into the acts of Parliament while in Session or in a committee with regard to the very membership of the parliament.  Would this amount to supervisory power, which the Parliament feels is not vested in the other wing, the judiciary?