Commentary

Judiciary vs Legislature
A Case of Political Amorality
To interpret the recent political controversy in Jharkhand, when the state governor swore in Shibu Soren as chief minister, as yet another instance of confrontation between the judiciary and the executive, is misleading. As precedents establish, the court is well within its rights to review the actions of the other two wings of the government. It is the amorality of politicians that poses the real danger to democracy.
RAJINDAR SACHAR
he action of the Lok Sabha speaker in calling a conference of presiding officers has unnecessarily reignited an old controversy: that of confrontation between the judiciary and legislature. It is already accepted that despite Shibu Sorens not having a majority in the Jharkhand assembly, the governor instead of ordering an immediate floor test, (as held by the Supreme Court in the Bommai case), swore him in as chief minister, and then gave him three weeks to prove his majority. It was after an admonition from the president himself, that the governor advanced the date of the assembly session by a few days, but allowed Soren to nominate an Anglo-Indian thus artificially increasing his strength. Following this illegality, the Supreme Court passed an order directing the governor (the executive authority) to advance the date of holding the confidence vote. There was no interference with the speakers order because at this stage in the assembly, there was no speaker. At the most the courts directive to film the assembly proceedings on video could relate to the proceedings inside the legislature, but its intentions was to secure authentic information and in no way to interfere with the speakers power. However, the speaker defied the courts order and adjourned the assembly without the confidence vote. Even the centre could not accept this brazen action on the part the governor and the speaker. Its directive to Soren to resign saved the situation somewhat. In that eventuality the apex court showed restraint and dismissed the petition accusing it of interference. So the allegation about the courts interference in the internal proceedings of legislature is without substance and is mere shadow boxing. Over 30 years back, in the Satpal case (1969), the Supreme Court had held that even if the speaker adjourned the assembly, the governor could summon it and direct the assembly to transact only one specified business. If this does not constitute interference by the executive in the domain of the legislatures function, how is the Courts direction in the present instance, directing the governor to merely advance the date of assembly, be considered objectionable. For the legislature, to claim total immunity from the judiciary is to go against the law laid down by the Supreme Court (1965), viz, Article. 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber, if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. In the Jharkand case, it was the governor who was violating the law and the Court had a duty to correct this illegality. In the Bommai case, the centres action, under Article 356, of taking over the state of Meghalaya on the purported ground that the then chief minister had lost the majority, was challenged. Events had come to pass when the assembly speaker had disqualified five MLAs who were supporters of the then chief minister. The Supreme Court by an interim order stayed the speakers order the latter

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Economic and Political Weekly

May 28-June 4, 2005

nevertheless did not allow the disqualified members to vote. A contempt petition was then moved against the speaker. The Supreme Court passed another order affirming that the authorities of the state including the governor must ensure that the courts order permitting members to participate in assembly proceedings be implemented. Despite this, the speaker did not allow four members to vote rather he announced that the confidence vote had been lost, and recommended presidents rule under Article 356. Both houses of Parliament approved the same. The Supreme Court quashed the proclamation observing the unflattering episode shows in unmistakable terms (not only) the governors unnecessary anxiety to dismiss the ministry and dissolve the assembly (but)...also his failure as a constitutional functionary to realise the binding legal consequences of and give effect to the orders of this Court. Thus to believe that it is settled law that whatever happens inside the assembly is sacrosanct and is immune from the courts scrutiny is neither correct in principle nor in precedent. Another jibe thrown the Supreme Courts way is to point to the fact that the courts order could hardly have been implemented if the executive (governor) had refused to implement it. As a refutation, I can do no better than to quote the stinging observation of the Supreme Court. It is a matter of deep regret that the governor of Meghalaya did not think it his constitutional duty to give effect to the orders of this court, not even after a specific direction to that effect. He could not have been unaware of the obligation created by Article 144, viz, the duty of all authorities, civil and judicial, in the territory of India to act in aid of the Supreme Court and its orders. I feel that unwisely the Jharkhand incident is being unnecessarily projected as an intrusion by the judiciary in a domain reserved exclusively for the legislature. This is due to an incorrect understanding of judicial review and the power to exercise this in the actions of the legislature and executive. It is not as if the courts consider themselves superior to the executive or the legislature. But this has been repudiated by the Supreme Court itself by saying that the issue as to who among the three wings of democracy judiciary, legislature and executive is superior is a futile exercise. Neither the legislature nor the executive nor even the judiciary Economic and Political Weekly

is superior. It is the people who are supreme. In the Jharkhand case it is only the restraining hand of the judiciary, which has restored the peoples confidence in the supremacy of the rule of law. For those claiming omnipotent privilege for the legislature, let me quote the memorable words of Lord Coke to King James I nearly 300 years back, when reminding him of the majesty of law the King ought not to be under a man, but under God and law. Politicians need to heed and act seriously on president A P J Abdul Kalams statement to parliamentarians The

arithmetical compulsions of incremental numbers and the alleged tradability of certain legislative seats won perhaps through means allegedly dubious and undemocratic have many a time created doubts about our democratic system in the public eye. As it is, the current antics of the Arjun Munda government in Jharkhand is already turning to be a shoddy repetition of the same wheeling and dealing as displayed by Shibu Soren. It is this amorality of politicians that poses the real danger to democracy not an imagined confrontation between judiciary and legislature. EPW

May 28-June 4, 2005

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