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Confrontation with Judiciary building up

	August 29, 2005

With an unprecedented observation by the Chief Justice of India expressing the Supreme Court’s displeasure over the Centre and others criticising the recent apex court judgement abolishing Government quotas and reservation in private unaided educational institutions, events are fast moving towards a confrontation between the Legislature and the Executive on the one hand, and the Judiciary on the other.



A three-judge bench headed by Chief Justice R.C. Lahoti, took strong exception to the “unwanted” criticism of its decision on quotas in private educational institutions. The court said if the Government is so intolerant of judicial verdicts, it could take steps to close down the courts.



“Tell us, we will wind up the courts and then do whatever you want,” visibly hurt Chief justice R.C. Lahoti told Attorney General Milon K. Banerjee.



The Bench, also comprising Justices G.P. Mathur and P.K. Balasubramanyam, said the criticism had been uncalled for as the seven-judge Bench a few days ago iterated the ruling of an 11-judge Bench given years ago to bring a piece of legislation to enforce reservation policy in private, unaided professional colleges.



Stopping short of saying that the Government had not understood the import of the recent seven-judge verdict, the Bench said : “We said please come with a piece of legislation, you are talking about a confrontation. We are told it is a confrontation... you must advise your people (government) to exercise self-restraint.”



The Supreme Court, continuously criticised by the Legislature and the Speaker of the Lok Sabha ever since it intervened in the controversy relating to the formation of a Government in Jharkhand, gave vent to its displeasure during the hearing on a PIL, seeking scheduled caste status for Dalit Christians.



What prompted the normally unflappable CJI to lose his cool was the AG’s remark minutes after the court had granted him an adjournment on extending reservation to Dalits who converted to non-Hindu religions. “We are grateful to the court for not precipitating the matter,” the AG said.



A barrage of strong remarks by CJI followed : “You do not understand our judgements. Yet time and again you criticise them. Eleven judges, five judges and now seven judges of this court have all said that the Government should come out with a law on this. Yet, when this (August 12 judgement) goes out, you say it is confrontation,” he said.





MPs assert Parliament’s right to frame laws



The Supreme Court outburst against the Government on August 23 drew sharp reactions from Members in the Lok Sabha the next day (August 24) with several of them describing the court’s remarks as uncalled for and very unfortunate. Speaker Somnath Chatterjee and the Government spoke of avoiding a confrontation with the Judiciary, but asserted Parliament’s power to frame laws.



The Speaker allowed an impromptu discussion on the Chief Justice’s remarks, ticking off the Government for critically commenting on the Supreme Court’s recent judgement, ruling out Government reservation in private, unaided educational institutions.



Taking umbrage at the CJI’s remarks, he said the Judiciary should “not cross the Lakshman Rekha” while holding that they were not for any confrontation between the Legislature and the Judiciary.



The Speaker was against creating an “avoidable controversy”, but made it clear that Parliament was “not giving up its rights to make laws.”



Chatterjee said : “A legislative body has its own rights and Parliament, as the supreme legislative body, surely will act according to its rights under the Constitution. Similarly, the courts have their own rights to function in their own sphere without any interference.”



The Speaker, however, acknowledged that it was the “undoubted right” of the court to “construe” the laws passed by Parliament.



Chatterjee pointed out that several pieces of legislation passed by Parliament had been declared “ultra vires” by courts. “What is important is that there should be a harmonious relationship between major constitutional bodies like the Legislatureand the Judiciary and nothing should be done or said which may create an avoidable controversy.”



Leader of the House Pranab Mukherjee said : “There has been no confrontation of any kind and there is no occasion to express anguish on account of any legislative action.”



Mukherjee said as far as the Government’s stand was concerned, he would like to make it clear that “the independence of the judiciary is the foundation of our democracy and rule of law.” He added : “We also recognise that the legislature has to perform its duties to translate into action the programmes of the government.”





Constitution amendment mooted to overturn SC ruling



An all party meeting was held last week on Tuesday night to discuss the situation arising from the Supreme Court judgement quashing reservation in private unaided institutions. It was decided that the SC ruling will be overturned through a Constitution amendment, if needed. Opinion was in favour of a constitution amendment rather than a simple Act which could be scrutinised by the courts more easily. It was decided to set up a small political committee to take a decision on the form of legislation to be enacted.



Political leaders emerging out of the three hour meeting, called by Union Human Resource Development Minister Arjun Singh, said the legislature was not looking for a confrontation with the judiciary. He said : “I have been authorised by political parties to state that an attempt should be made to frame a central law to provide social justice, eliminate commercialisation of education and protect minority rights as enshrined in Article 30 of the Constitution.” Asked whether the legislation would be brought during the Winter Session of Parliament, Singh said, “efforts will be made towards that.”



The decision came within hours of the top court giving vent to its anguish over the “unwanted criticism” that it faced over its ruling on reservations.





Judges to keep watch on judges : UPA Government



The UPA Government is understood to have written to the Chief Justice of India proposing the formation of an eleven-member National Judicial Council (NJC) to probe allegations of judicial misconduct. In a departure from the plan proposed by the previous National Democratic Alliance Government, the Manmohan Singh Government has proposed that all eleven members of the Council should be drawn from the Judiciary. The NDA plan provided that the Law Minister and a nominee of the Prime Minister should be on the council.



The National Judicial Council proposal has been based on the institutional framework for judicial accountability existing in countries like the United States and Canada. Details of the proposal are awaiting comment from the Chief Justice of India.



The NJC is intended to form a part of a wider Judicial Accountability Bill. Officials say that once the office of the CJI clears the proposal, the Law Ministry will decide whether the 1968 Judges (Inquiry) Act will be repealed and then send the proposal for clearance to the Union Cabinet.



CJI will be Chairman of the Council which will include four senior most judges of the Supreme Court and four Chief Justices (in order of seniority) as well as two other “senior most” High Court judges.



NJC will get three months to complete its inquiry following which it can take away work, transfer, ask for resignation or recommend impeachment. In case there is a complaint against one of the members of NJC, that judge shall be excluded from the proceedings. Anyone who files a “mala fide” complaint will be punished by the Council with imprisonment which may range from one to three years and a fine of upto Rs. 40,000.