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Parliament’s Cash-for-Query Scam : Expulsion of MPs upheld

	January 15, 2007

In another important judgement delivered last week, the Supreme Court by a 4-1 ruling upheld the power of the Legislature to sack members whose conduct lowered the dignity of the House. But at the same time the court said, that there was no bar on courts interfering with parliamentary proceedings if there were allegations of “substantive illegality or unconstitutionality.”



Observers say that this leaves open a window for the judiciary to intervene if any citizen feels that his fundamental rights have been violated.



The Constitution Bench, headed by Chief Justice Y.K. Sabharwal, in its verdict on Jan. 10, said that the courts could not go into allegations of procedural irregularity or into the adequacy of the material before the legislature. But any citizen, member or non-member, could approach the court if his fundamental rights are violated.



The court said it has to be initially presumed that the legislature had discharged its functions reasonably, but the presumption was rebuttable. It noted that no “mala fide or ulterior motive” could be attributed to Parliament’s expulsion of 11 MPs in the cash-for-questions scandal in 2005.







Justice R.V. Raveendran, in his dissenting judgement, however, said the action of both Houses of Parliament in expelling their members was violative of constitutional provisions and, therefore, invalid. Unlike the UK, Parliament in India was not sovereign and had to act in accordance with the Constitution, he said.



The majority, however, stressed that “the court will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters.”



The Constitution bench also cleared the way for bypolls to 10 Lok Sabha constituencies, which fell vacant after the December 2005 expulsions. The court had, during the pendency of the proceedings, given the go-ahead for filling up the vacancy in the upper House.



The two Houses of Parliament, through their respective secretariats, had chosen not to appear in the matter but the Centre had defended the action before the court.



The court accepted the Centre’s contention that Parliament could expel a member for “conduct... that lowers the dignity of the House, which may not have been necessarily known at the time of election”.





Reluctant BJP bows to the verdict



The Supreme Court’s affirmation of Parliament’s decision to expel MPs in the cash-on-camera scam forced even the country’s largest opposition party, the BJP, to endorse the ruling, though reluctantly.



The BJP had given a dissent note to the five-member parliamentary probe panel that recommended the MPs’ expulsion. The party’s deputy leader in the Lok Sabha Vijay Kumar Malhotra had objected to Parliament taking a decision based on the probe panel’s suggestion on the ground that proper procedure was not being followed. Party leader L.K. Advani said the quantum of punishment far exceeded the MPs’ crime.



Malhotra, who had given the dissent note on BJP’s behalf, suggested that the government draw up guidelines to act on allegations of corruption against lawmakers.



“It is good that punishment is awarded for corruption, but there should also be rules in place to decide such cases,” he said.





The Congress attacked the BJP for suggesting that guidelines be formulated to set in motion a procedure in cases where MPs are charged with corruption.





According to Congress spokesperson Jayanthi Natarajan, the BJP has displayed a “partisan” attitude by suggesting caveats on the Supreme Court’s order.



“BJP does not respect democratic institutions. They are partisan and given to denigrating even the courts, the Election Commission and other constitutional bodies. They have a tendency to not follow orders issued by these institutions,” said Natarajan.





No friction between the Legislature and Judiciary : CJI



Outgoing Chief Justice of India Y.K. Sabharwal has said that there is no friction between the legislature and the judiciary, only difference of perception which is healthy for democracy. Addressing a news conference before demitting office on Saturday, Jan. 13, he said, at the same time, there cannot be cosy relations between the two wings in the interest of democracy. Cosy relations, the CJI said, might come in the way of taking an independent decision. He, however, agreed that there should be harmonious relationship among various organs of the state.



Asked whether some of the recent judgements led to tension between the judiciary and the legislature, Justice Sabharwal said, “I do not think that there is any tension. Such a perception has been there in the history of courts for 200 years not only in this country but also in England and other countries.”



Asked about the judgements in the ‘cash-for-query scam’ and Ninth Schedule cases, he said: “What we have said is that the Acts of Parliament were amenable to judicial scrutiny. Legislatures have accepted that they lay down the law and judges are entitled to interpret it whenever required. Limits are there in the Constitution but interpretation of law has to be done only by the judiciary.”



Sabharwal described the “sealing case” in the Capital as the most difficult of his career. He said: “The issue of sealing was difficult, as on the one hand it was a question of law and on the other it was the sufferings of people.”



Several things were said about him that he had no compassion, sympathy and that he was not sensitive to humanitarian issues, he recalled. “Laws are equal to all. I had to stick to the law and I cannot make new law. I have to implement the law,” he said.



On the death penalty, he said that as long as the law was in the statute book, it should be implemented in the rarest of rare cases.



Asked about the court rejecting the curative petition filed by Mohd Afzal seeking reconsideration of the death sentence (in the Parliament attack case), he said: “Capital punishment should not be looked at only in the context of Afzal.”



“The debate about the death penalty is going on the world over. In Europe, there is no death penalty but it is there in America. The President [of India] is against it. Personal opinion has no meaning for judges who decide cases within the framework of law. The decision to abolish the death penalty rests with the Government.”





New Chief Justice of India sworn in



Justice K.G. Balakrishnan was sworn in as new Chief Justice of India on January 14. He replaces Justice Y.K. Sabharwal who has demitted office.



Justice Balakrishnan, who is the 37th Chief Justice of India, will have a tenure of nearly three and a half years before his retirement in May 2010. He is the first person belonging to the scheduled castes category to occupy the highest post in the judiciary.



Unlike his predecessor, Y.K. Sabharwal, Justice Balakrishnan is not considered to be an activist judge.



Speaking a day before taking over as the CJI, he said, “under the Constitution, the States are bound to implement the court directions. There may be some practical difficulties in executing the directions. But that cannot be a ground for not implementing the orders.”



On the reported fight between Justice B.J. Sethna and Justice P.B. Majumdar of the Gujarat High Court, he said, “It is an unfortunate incident. We are looking into the report of the Chief Justice of the High Court. Whatever action is required will be taken based on the report.”



Justice Balakrishnan said he would not subscribe to the view that the judiciary was encroaching on the domain of the legislature. “I don’t think there is a confrontation. It is not a serious problem. We are only concerned about the Constitution.”



“They are concerned about the legislation. So many political matters come before the court and they are decided on the basis of the legal principles.” The recent judgements in the Ninth Schedule and cash-for-query cases should not be taken as confrontation.



Asked whether the Supreme Court would yield to the demand for “quotas in the judiciary,” he said, “It is not the business of the Chief Justice to propose quota.”



Top priority would be given to speed up disposal of pending cases, particularly those relating to undertrials, senior citizens and old matters.





Criticism of judicial approach to sealing in Delhi



Speakers at a Debate on Judicial Activism and sealing in Delhi, organised on Jan. 9, were critical of the way in which the sealing issue in the capital was being handled by the Supreme Court. The debate was organised by All India Democratic Lawyers’ Association. Former Chief Justice of India J.S. Verma, speaking during the debate, said, judicial activism did not mean encroaching upon the tasks of the other arms of governance. He said passing orders that could not be implemented would lead to erosion of credibility of the institution.



The former Chief Justice said that all arms of governance must realise that their powers were derived from the same source, the people, and therefore, none of them should feel superior to the other.



Former President of the Supreme Court Bar Association P.H. Parikh said, it was unfortunate that the judiciary was forced to take up functions that were not strictly within its ambit, but a shock treatment was needed to set things right.



Former Supreme Court appointed MCD Court Commissioner Ashok Arora, who had resigned from the job, said, “It would have been better if the court had asked for a blueprint of removing the encroachments in a phased manner.”