PARLIAMENT AND JUDICIARY- THE BELLIGERENT RELATIONSHIP
On July17, 2006, a Supreme Court bench headed by the Chief Justice of India censured the central government for enacting the Delhi Laws (Special Provisions) Act 2006, that put a moratorium on demolitions of unauthorized constructions in the capital for one year. The Court felt that the legislation was “wholly void and illegal”, and was “aimed at overruling the orders of the court”
Almost a year ago, on July 31, 2005, the Lok Sabha Speaker Somnath Chatterjee was echoing similar feelings about the authority of legislature. While inaugurating the 69th conference of the presiding officers of legislatives bodies in India, he expressed concern about the eroding independence of legislatures and said this was a challenge the presiding officers must grapple with. The meeting was being held in the backdrop of developments in the Jharkhand legislature The Delhi Laws (Special Provisions) Act 2006, that provoked such searing observations from the judges, is only one in the series of many such laws passed recently by the government. To give only a few examples, the Office of Profit law was passed with retrospective effect to allow the MPs to retain their offices of profit, disregarding the suggestions even of the President. The Central Vigilance Commission Act of 2003 legalised the Single Directive issued to CBI that was held unconstitutional by the Supreme Court in the Havala case. The Court held the Illegal Migration (Determination by Tribunals) Act, 1983 unconstitutional but the government decided on February 10, 2006 to set up tribunals under the Foreigners Registration Act, 1946, for determination of illegal migrants in Assam.
It is not only the central but also the state governments that have shown similar belligerence in nullifying the judgements of the courts. The two recent examples have been the Bangalore Mysore Infrastructure Corridor Project (BMICP) where the Karnataka Government tried to defy both the High court as well as the Supreme Court and block the implementation of the expressway project by the Nandi Infrastructure Corridor Enterprise (NICE) and the Ulhasnagar case, where the Maharastra Government promulgated an ordinance to regularize 855 illegal buildings that were being threatened with demolition under the orders of the Bombay High Court.
Seeds of what is happening now were sown long ago. In 1951, the Constitution was amended for the first time. Article 31 B was introduced to provide immunity to certain Acts and Regulations specified in the Ninth Schedule to the Indian Constitution from being challenged even if it involved infringement of fundamental rights. The courts were deprived of the power to declare such legislation void. In the beginning, the Schedule consisted of mere 13 items, but now it has as many as 284 laws, with more than 35Acts added during the two years of emergency.
There are some differences between what occurred during the earlier years and what is happening now. One, the stature of members of the legislature in those days was generally much higher than what it is now. There was a galaxy of luminaries in the Parliament during Prime Minister Nehru’s days, who enjoyed public trust. Now the Parliament pales in comparison, with steep decline not only in the standards of debate but also of integrity and honesty of members, with many of them having past criminal records. Criminalisation of politics has led to an enormous loss of people’s confidence in the legislature. A similar loss of faith in the integrity and independence of the judiciary has not occurred, though charges of corruption against even the upper judiciary are occasionally heard. Two, when the legislature enacted laws to undermine or restrict the court’s jurisdiction and powers, action was guided more by public than private or partisan interests. Article 31 B went to the extent of even denying primacy to fundamental rights in the interests of protecting land and agriculture related legislation that was considered highly important from economic and social welfare point of view. Presently, it is mostly the partisan and selfish considerations and false notions of asserting ones supremacy that govern new legislation enacted to invalidate judicial verdicts. Whether it is the legislation preventing the demolition of buildings or allowing its members to enjoy the perks of two or more offices or giving impunity to officers of the rank of Joint Secretary and above from being inquired into in corruption cases or preventing large scale migration from the neighboring country, it is either the selfish considerations of vote bank politics, consolidating party’s power or even of protecting ones lackeys or distributing patronage that has shaped such decisions.
it is the job of the legislature to enact laws, it is for the judiciary to review and interpret them to ensure they are in accordance with the Constitutional provisions. So if the Court declares any law as null and void, any subsequent law passed by the legislature to set aside the impact of the judgement can not be upheld unless it meets the same constitutional or legal norms or standards, the absence of which led to throwing out the earlier law. This must be realized by the legislature; otherwise the rewriting of laws will continue to occur, leading to unnecessary wastage of public resources
In the final analysis, what is happening is more a confrontation between the executive and judiciary rather than the one between the legislature and judiciary. The doctrine of “separation of powers” is based on a clear-cut division of powers between the three arms of governance- executive, legislature and judiciary, where each one acts as a check on the others. In the west minister model of parliamentary democracy that we have adopted, the separation of power is not all that clear. The cabinet that heads the executive is drawn from the legislature. What the legislature passes as laws is what the executive wants them to do and the executive may occasionally be guided by protecting the interests of the party in power. Public interests may not always reign supreme.
Which is sovereign- parliament or judiciary? It is a superficial and hollow question that should never be raised or discussed. All institutions of governance owe their existence and powers to that supreme document- the Constitution of India. One sovereign truth must be realized by all-“Howsoever high you may be, the Constitution is above you.” This is the only way to preserve democracy in this country.
