The Hindu Business Line : Scylla, Charybdis and Somnathda

EVEN as a Test Match was played in Mohali, a different tussle — `judiciary versus legislature' — engaged our lawmakers. And while our cricketers are plotting their strategy for Kolkata, Lok Sabha Speaker, Mr Somnath Chatterjee, is preparing for the Speakers' conference due on March 20, to discuss what the NDA has called an "unwarranted" controversy.

It is quite likely that all the heat and sound may end with a faint whimper, given the realities of Indian politics. The air is thick with calls of boycott of the conference, and exhortations to Speakers of the States for a show of "statesmanship with a constitutional vision before attending the conference, and assisting the Speaker to pursue an agenda which can be harmful to Indian democracy." And the Opposition is keeping a long fuse alive by threatening a no-confidence motion against the Speaker. It is high time, therefore, that we know what the crisis is about.

To begin from zero base, let's visit the site of the First Citizen, where http://presidentofindia.nic.in/govern.html explains that there are "three distinct but interrelated branches: legislative, executive, and judicial." With three players, there can be three combinations, but what is of immediate interest is the one that involves the legislature and the judiciary.

Among the `dramatic institutional battles in the Indian polity' is the continual "struggle between elements wanting to assert legislative power to amend the Constitution and those favouring the judiciary's efforts to preserve the Constitution's basic structure," as the President's page sums up the combat. In the Constitution, `The Union Judiciary' (Chapter IV, Part V) provides for the independence of the judicial branch. Chapter II, titled `Parliament', defines how the Constitution plays the role of a match referee. For instance, Article 121 of the Constitution on `Restriction on discussion in Parliament', stipulates that no discussion with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties shall take place in Parliament, except upon a motion for presenting an address to the President for the removal of a judge.

Similarly, Article 122 mandates that courts are not to inquire into proceedings of Parliament, stating that "validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure" and that "no officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers".

Part VI on `The States' has analogous checks. Article 211 stipulates that no discussion shall take place in the legislature of a State with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties. And Article 212 states that courts are not to inquire into proceedings of the legislature; so, "validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure." Also, as per Article 212(2), "No officer or member of the legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers".

These were the Articles that found mention in the sound bytes that caught our attention when some MPs felt that the apex court's opinion in l'affaire Munda was hitting them where it hurt, even as others said that the court was playing the role of a white knight in shining armour. It is necessary to appreciate that `separation of powers' is not only for maintaining the `fine Constitutional balance' but also a cardinal principle of control and audit because it won't be eggheadedness to put all eggs in one basket.

"We are therefore placed in two difficult positions," said B. R. Ambedkar when addressing the Constituent Assembly on `due process' of law and the relationship between the legislature and the judiciary. One position was "to give the judiciary the authority to sit in judgement over the will of the legislature and to question the law made by the legislature on the ground that it is not good law, in consonance with fundamental principles".

And the alternative, as he put it, was that the legislature ought to be trusted not to make bad laws. "It is very difficult to come to any definite conclusion. There are dangers on both sides," he conceded.

Then comes an interesting portion of his speech: "For myself I cannot altogether omit the possibility of a legislature packed by party men making laws, which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad." And then he gave up: "It is rather a case where a man has to sail between Charybdis and Scylla and I therefore would not say anything. I would leave it to the House to decide in any way it likes."

A research paper on www.arts.cornell.edu titled "Activism, Separation of Powers and Development," by T. C. A. Anant and Ajit Mishra cites the above quote and argues that activism can potentially raise welfare of a society but can also undermine the doctrine of separation of powers.

They define activism as "an institution extending its mechanism of decision-making, on the grounds of privilege, into problems that are the forte of some other institution".

While the role of the judiciary has been lauded when there is "failure of other institutions like the Parliament and the government machinery", there is the risk of falling into the trap of the "general perception that judiciary is supposed to play such an active role on a regular basis". A limited activism "reduces the cost of achieving collusion-proofness and raises welfare," but as the authors rue, there can be the worrying trend of looking for ways to enlarge the scope of judicial activism "rather than focusing on how to improve working of other institutions". When activism becomes the in-thing, and more a rule than an exception across institutions, as a countermeasure to corruption, there will be no guarantee that it will always be benevolent `seeking to maximise social welfare'.

As for Somnathda's conference, it won't be a bad idea to debate the issue once again.

ZeroBase@TheHindu.co.in

D. Murali

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