In the Constitutional scheme of things, necessary care has been taken to strike a balance of power among the three organs of the State, namely, the Executive, the Legislature and the Judiciary. However there have been phases during which one organ has dominated the scenario, thereby apparently posing a threat to the balance visualized by the Constitution. During the last decade or so, we have been witnessing the phase of 'judicial activism', wherein judges have allegedly taken to themselves some roles of the Executive and the Legislature. The very recent verdict of the Supreme Court on the expulson of MPs from Parliament has once again brought to the fore question over the extent of judicial power over the functioning of legislatures.

Constitutional position

The Constitution, under various provisions, has clearly drawn the Lakshman Rekha for both the Legislature and the Judiciary to maintain their independence in their respective functioning. Where Articles 121 and 211 forbid the legislature from discussing the conduct of any judge in discharge of his/duties, Articles 122 and 212 on the other hand preclude the courts from sitting in judgement over the internal proceedings of the legislature. Article 105 (2) and 194 (2) protect the legislators from interference of the Courts with regards to his/her freedom of speech and freedom to vote.

Thus, in theory, there is ample provision for each side to maintain its autonomy. But activism of any sort, whether by the judiciary or the legislature, throws up a million-dollar question: what happens when one side does not abide by the separation envisioned in the Constitution? On this, the Constitution is apparently silent, leaving it to the learned and responsible legislators and the judges to themselves ensure that they remain within their bounds. The sad fact, however, is that there have been numerous instances where these rather pious intents of the Constitution have been flouted without check.

Mechanisms like 'contempt of court' and 'breach of privilege' are not effective in maintaining the separation, and merely make passing appearances during individual incidents.

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For example during the phase of stand-off between the Supreme Court and the Delhi government on the issue of converting the public vehicles from diesel to CNG mode in Delhi, the then Chief Minister Ms Sheila Dikshit had lambasted the Apex Court inside the Legislative Assembly. Taking note of this from the media reports, the Apex Court sought explanations from the CM. The CM simply made an affidavit denying the media reports, and there ended the story. Similarly, in another such instance, a Janata Dal (S) MLA of the Karnataka Assembly cast grave aspersions on the integrity of judges who gave a ruling against the State government in the Bangalore-Mysore Infrastructure Corridor project case. On July 19, 2006, presiding over a Bench comprising Justices C.K. Thakkar and P.K. Balasubramanyan, Chief Justice Y.K. Sabharwal reacted with restraint and dignity: "We express our deepest anguish over such statements made on the floor of the House."

Therefore, broadly speaking, insofar as adhering to the separation of powers by different organs of the state is concerned, this can only be done by self-restraint and self-discipline; there is no punitive mechanism in case of violation of the aforesaid provisions. Mechanisms like 'contempt of court' and 'breach of privilege' are not effective in maintaining the separation, and merely make passing appearances during individual incidents.

Judicial intervention in legislative arena

In recent years, there has been gradual but conspicuous flexing of muscles by the judiciary vis-a-vis lawmakers, often in cases involving tests of ruling parties' strengths in the state and central legislatures. In 1998, when there was ugly drama by the contending claimants for the Chief Ministership of Uttar Pradesh - Jagadambika Pal and Kalyan Singh - and the partisan role played by the then Governor Romesh Bhandari, the apex court salvaged the situation by intervening and directing the Speaker to conduct the Composite Floor Test in the State Assembly. A similar situation was repeated in 2005 in the case of the Jharkhand Assembly, where among the competing parties were Sibu Soren and Arjun Munda. The three judge bench of the apex court then directed the Protem Speaker to conduct a Composite Floor Test to ascertain the majority in the House.

Differences in the approaches of the two SC benches to these similar cases largely went unnoticed during the debates of that time. In the first case, when asked if the SC was overseeing the proceedings inside the Assembly, the bench headed by Chief Justice M M Punchhi replied that it was not overseeing the proceedings, but any attempt to create a disturbance would be viewed seriously. But in case of the Jharkhand Assembly, the SC bench went a step further and ordered a video recording of the proceedings to be presented before it! In the event, this direction of the Apex Court was not adhered to by the Jharkhand House, and the matter eventually settled with the resignation of Soren from the post of Chief Minister. Various questions remained, in particular whether since the court had ordered a floor test, any contempt of court had occurred in not holding this test. And if yes, who would be punished: the Protem Speaker who failed to conduct the floor test as per the direction of the court or the MLAs who showed unruly behavior despite the strictures by the court? There were no answers.

It is also noteworthy that while the apex court has been rather straight-forward in disciplining errant members of the State Legislators, it had been more cautious in the case of Parliamentarians. When the JMM bribery case - where Prime Minister Narasimha Rao was accused of buying votes - was before the Constitution bench of the SC in 1998, legal circles were divided on their understanding on how the SC would hear the case since it was an internal matter of the Parliament, and Article 105(2) provides protection to MPs for anything said or any vote given inside the house. On the other hand since it was a corruption case, the court was expected to take an exemplary stand which would have deterred MPs from playing with the faith of the people. However, in a technically fine-tuned judgment, the court weighing each word of Article 105, exempted from punishment the MPs who had taken part in voting inside the House, punishing the ones who had abstained (not taken part) from exercising their vote.

This conservative stand of the Apex Court was frowned upon by the National Commission on Review of the Working of the Constitution which disagreed with the judgement and recommended that necessary amendment need to be done to Article 105 so that nothing should bar the prosecution of a Member of Parliament, in any court of law, for an offence involving receiving or accepting bribes directly or indirectly.

There have been other incidents where courts and legislators found themselves on opposite sides. In 2003, on the issue of the mandatory disclosure of educational qualification, assets/liabilities and the details of criminal antecedents (if any) by candidates filing nominations for elections, there was a series of assertions and counter-actions by Parliament and the apex court, in which the judges finally prevailed in establishing the need for such disclosures. Similarly, the very recent verdicts of the SC on extending the concept of a 'creamy layer' to reservations for Scheduled Castes and Scheduled Tribes, and on invalidating the immunity of legislations (passed after 1973) placed in the Ninth Schedule of the Constitution from judicial review, were not taken well by Parliamentarians who treated these verdicts as usurpation of power by judges.

In some cases, judicial verdicts have included some views that legislators found to their liking, and others that they disagreed with. For instance, in the cash-for-questions case (where MPs were accused of receiving money to raise particular questions in Parliament), the SC upheld the power of Parliament to expel its members. There was much appreciation of this part of the judgement from almost all legislators, including the Speaker Somnath Chaterjee who has been vociferously opposing the alleged over-reaching of the judiciary into the legislative domain. At the same time, another part of that judgement, where the court held that the Legislature cannot claim immunity from judicial scrutiny in respect of their internal proceedings, has created apprehensions in legal and political circles, with some wondering if this rendered Articles 121 and 211 obsolete.

The observation reads "if the proceedings of a legislature are tainted with substantive or gross illegality or unconstitutionality or are mala fide or have denied natural justice to a person, their proceedings would not be protected." By implication, the judicial interference in the internal proceedings of the Legislature, which was previously done as rather occasional responses to rare incidences, has now been formally established through this order. Though the Court observed that "it would make a generous presumption of honesty and good faith in the proceedings of the legislature, and its power of judicial scrutiny would not be the usual type of judicial review over the actions of government", the bottom line is that the Court has assumed the power to judge the manner the house is managed by the legislators.

Rationale for judicial activism

When the SC intervened and ordered floor tests in the UP and Jharkhand assemblies, its intervention was evidently justified because there were visible actions of Constitutional impropriety by the legislators and other Constitutional authorities. Had the apex court not dealt with the matters firmly, there would have been real breakdown of Constitutional democracy in those instances. Thus, despite the fact that such interventions by the SC did amount to disturbing the power balance, those were nevertheless seen as the only remedy available to address the situation and save the Constitution from being taken for a ride. Therefore, they were largely condoned by the media and Constitutional experts, and even the critics of such judgments did admit that the members of legislatures should behave in a way so as to not attract such judicial intervention.

However, in the MPs' expulsion case, the procedures undertaken by the House Committee, the Speaker and finally the House itself in handing down the expulsion order to the tainted MPs were not found to be incorrect by media or by the legal and political experts. Therefore, the justification for the SC sitting in judgement over the procedures followed by the members of Parliament in arriving at the expulsion order, is less convincing. Indeed, the SC bench itself found no impropriety involved in the procedures followed by the lawmakers.

Reaction from different quarters

Opposition to judicial over-reach is increasingly easy to find.

  • In the Conference of Presiding Officers of Legislative Bodies convened by the Speaker of the Lok Sabha, Somnath Chatterjee in 2005, the Presiding Officers expressed concern over court orders that disturbed "the delicate balance of power" between the legislature and the judiciary. They drew attention to the gradual ascendancy of the judiciary over the other two other branches.

  • At the two-day national conference of the Bar Association of India held in New Delhi on 24 March this year, legal experts held that "judicial activism should not degenerate into judicial authoritarianism". Speaking on the occasion, former Attorney General of India Soli Sorabjee said "judges must not instill in themselves that the judiciary can solve all problems".

  • In the conference of Chief Ministers and Chief Justices held in New Delhi recently the Prime Minister cautioned the Courts not to cross their limits. His remarks came in the backdrop of various legislations being struck down by the Courts; the most recent being the stay on the implementation of 27 per cent reservation for Other Backward Castes in Centrally financed elite educational institutions.

  • In an article titled 'With due respect, Lordships', published in The Indian Express, dated 12 March 2007, Pratap Bhanu Mehta, president of the Centre for Policy Research wrote "The evidence of judicial overreach is now too overwhelming to be ignored ... courts are doing things because they can, not because they are right, legal or just".

  • Taking note of increasing criticism of Judicial pronouncements, former Chief Justice of India, J S Verma, giving the Pandit Kunji Lal Dubey Memorial Lecture, 2007 at Jabalpur on 24 March opined that "Judicial activism should be neither judicial ad hocism nor judicial tyranny". He suggested that indeed, strong words on the judiciary from different quarters require urgent circumspection by judges. He went on to say, "there can be no quarrel with the observation that 'the line between appropriate judicial intervention and judicial overreach is often tricky'. For that reason, greater expertise and self-restraint of the judiciary is needed in the borderline cases eschewing personal predilections and emotive responses."

The tenet of 'basic feature of the Constitution' has been famously well established in the India in Keshabananda Bharti vs. State of Kerla, (1973) and by subsequent judgments of the apex court. This view holds that legislatures cannot create laws that violate the basic features of the Constitution, and judges have more or less given to themselves the power to decide which laws may be violating this prohibition. Interesting, this has never been applied to judicial pronouncements; it is never asked whether a particular verdict violates the basic features of the Constitution. The 'separation of powers' too is one such inviolable basic feature, as determined by the judiciary itself (Indira Gandhi v. Raj Narain, AIR 1975 SC 2299), and yet this yardstick does not appear to be much in use when judgements are rendered. Naturally, this has provoked opposition from many fronts.

The question, "are judges over-reaching" should be looked at partly in light of how legislatures might treat the judiciary too. Turning the common argument in reverse, there are several incidents of judicial conduct that may well have been discussed inside legislatures, in the garb of 'public interest'. Some examples of these are the allegations of receipt of favours from the State PSC chief by the HC judges of Punjab in 2002, allegations of solicitation of sexual favours by a judge of Karnataka HC, or very recently the charges of intimidation made against Justice Sesthna of the Gujrat HC by his colleague Justice Majumdar, etc. Should lawmakers take an active interest in addressing these, or should such allegations be left to the judges themselves to sort out?

Instances of self-protectionism by the judiciary are also seen. The statement of the present Chief justice of Supreme Court that "no self respecting judge would like his/her assets to be declared" has raised eyebrows of citizens regarding their right to know what assets public servants have amassed. It is unclear, on what basis the CJI makes a clear distinction between transparency in the case of lawmakers on the one hand, and similar open-ness for judges on the other. The opposition of the highest judiciary to the inclusion of non-judicial members in the proposed National Judicial Council, as well as its wish to be exempted from the Right to Information Act 2006, were also not well received in different quarters.

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