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Lok Sabha to debate ‘judicial activism’

	December 11, 2006

Upset over what some politicians think to be judicial ‘over-activism’, the Lok Sabha decided on Thursday, Dec. 7 to discuss the need for harmonious functioning of the three organs of the state, the Legislature, the Judiciary and the Executive. Gurudas Dasgupta of the CPI raised the matter as a calling attention motion. With many members wanting to speak on the subject, Speaker Somnath Chatterjee granted a lengthy discussion possibly under Rule 193.



The discussion on the issue will be scheduled after the matter is gone into by the Business Advisory Committee.







During the debate on the calling attention motion on December 7, MPs, cutting across party lines, spoke of what they called the judiciary’s increasing tendency to encroach on the constitutionally demarcated domains of the legislature and the executive.



Vijay Kumar Malhotra (BJP) said the Prime Minister should first call an all-party meeting to evolve a consensus on the issue.



Law and Justice Minister H. R. Bharadwaj said the powers of the three organs were provided in the Constitution and there were built-in checks and balances.



“The checks and balances are functioning in harmony for the common goal of the good of the people, who are the framers of the Constitution. After coming into force of the Constitution, all the three organs have, by and large, functioned within their determined sphere demarcated by the Constitution. It is a matter of pride for all of us that our democracy is vibrant and alive.”



Describing the statement as “lame duck,” Dasgupta said, it did not reflect the problems facing the country. No organ of the State should act in an arbitrary fashion. Parliament, by virtue of being elected by the people and having the most representative character, enjoyed a pre-eminent position in the power structure.



To buttress his point, the CPI member quoted a statement made by Jawaharlal Nehru in the Constituent Assembly in 1949: “We shall honour our pledge within our limits. No judge, nor Supreme Court, can itself make a Third Chamber. No Supreme Court, no judiciary can stand on judgment over the sovereign will of Parliament, representing the will of the entire community. If we go wrong here and there, it can point out that to us.”



With 11 members having given fresh notice to make brief interventions, the Speaker suggested that the calling attention motion be turned into a discussion under Rule 193.





Speaker’s rulings subject to review



Even as the Lok Sabha was discussing Legislature-Judiciary relations, the Supreme Court on Thursday, Dec. 7, brushed aside arguments that the actions of the Speaker of the legislature are above judicial scrutiny. Such a proposition is not possible as the Speaker cannot be considered to be absolutely impartial, since he does not sever his relationship with the political party on whose ticket he was elected to the House, a five-member Constitution Bench said. “Unlike in other countries, a legislator, after being elected Speaker, does not resign from the party from which he was elected to the House, so the argument cannot be sustained.”







The Bench’s observations came during the marathon hearing of arguments on the constitutional validity of the split engineered by 37 MLAs of the BSP in Uttar Pradesh to facilitate Mulayam Singh Yadav to form a government in August 2003.



Senior counsel Ashok Desai, appearing for the state government, argued that the Speaker of the House, by virtue of his constitutional status, is held in high esteem and hence, his actions cannot be questioned in any court.



After holding the Speaker’s decision improper, the Allahabad High Court had on February 28 referred the matter back to the Assembly for a fresh appraisal of the disqualification demand made by BSP Mayawati.



Arguments by senior lawyers like Soli Sorabjee, Harish Salve, Desai and Rakesh Dwivedi - representing the UP Government and defected MLAs - have centred on the point that the split was valid irrespective of the “installments” in which it was effected.



On Friday, Dec. 8, there were calls for the legislature and

the judiciary to have increased tolerance and to strike a delicate balance so that all organs of the state could work in harmony, rather than discord. The occasion was the function organised by the International Press Institute’s India Chapter in New Delhi where the Indian Express received the 2006 award for excellence in journalism and furtherance of public interest. Former Chief Justice of India A.S. Anand said, “the function of the judiciary is not to set itself in opposition to the policy and politics of the majority rule, but to test the validity and constitutionality of the actions of the state.” He advised courts to avoid over-stepping their limits and to show proper restraint while exercising their power of judicial review. Lok Sabha Speaker Somnath Chatterjee said, “Democracy is not a war, but is a well-thought out system where institutions have to work together to take the country forward.”