__________________

If you haven't seen the print edition,
you've 
missed it ALL
send me the print edition
__________________

Judiciary and legislature confrontation – a myth

By Rajindar Sachar

The Milli Gazette Online 

The ugly spectacle of ministry making in Jharkhand coupled with the illegal action of the Governor which the Supreme Court attempted to correct is being unjustifiably projected as a confrontation of judiciary Vs. legislature. 
It should be emphasized that the Court only modified the order of Governor (the Executive Head) and there was no interference with the internal functioning of the Assembly excepting to direct that item of confidence vote should be completed the same day.

There is misconception as if the decision given in the legislature by the Speaker is sacrosanct and untouchable like a dictate of Luis XIV. This fallacy was blown out in Bommai’s case (9 Judges decision) when dealing with vote of confidence in the Meghalya Assembly. In that case the majority supported vote of confidence obtained by the Ministry. But the Speaker illegally disqualified independents thus reducing the Chief Minister to a minority. These 5 MLAs obtained from the Supreme Court an order staying the operation of the Speaker’s order and directing all authorities in the State to comply with the order of the Court. Despite this order the Speaker excluded the vote of those MLAs. The Governor also ignored the Court’s order and acting on Speaker’s decision recommended President’s Rule. Both the Houses of Parliament approved the proclamation. This was struck down by the Supreme Court observing "The unflattering episode shows in unmistakable terms the Governor’s unnecessary anxiety to dismiss the Ministry and dissolve the Assembly and also his failure as a constitutional functionary to realize the binding legal consequences of, and give effect to, the orders of this Court (emphasis supplied). What is worse, the Union Council of Ministers also chose to give advice to the President to issue the Proclamation on the material in question, when prima facie the material before the President was not only irrational but motivated by factual and legal mala fides. The proclamation was, therefore, invalid." No one has treated that judgment as a confrontation with the legislature. 

The Supreme Court in Keshav’s case (1965) was categorical in rejecting the Henry VIII claim of Legislature being unfettered in exercising any power unchecked by Courts, when it said "Art. 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 Jharkand case the Governor was violating the law laid down in Bommai’s case and the Court thus had power to correct it.

Constitutional interpretation by the Courts, Hamilton the American jurist said, does not "by any means suppose a superiority of the judicial over the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in the statutes, stands in opposition to that of the people, declared in the constitution, the Judges ought to be governed by the latter rather than the former".

No one is suggesting that the interpretation that courts may sometimes give are necessarily the ideal ones. Courts always welcome informed criticism of their decisions and have not hesitated if convinced to change their views – courts have no vested interest in persisting in any faulty interpretation. But this criticism necessarily postulates that the good faith of Judges and the courts is never doubted and an inconvenient interpretation, in the opinion of the legislatures and the executive is not characterized as a confrontation. If with all this limitation and judicial self restraint the courts sometimes are compelled to hold some of the action of legislatures as ultra vires, this is not to be taken as an act of confrontation between judiciary and the legislature.

If the Speaker in the name of unrestrained internal working of the legislature pleads for total immunity even when its actions are patently illegal as in Jharkand case grave consequences could arise. Mr. Justice Brennan of Supreme Court of U.S.A. put it succinctly: "nothing rankles more in the human heart than a brooding sense of injustice, illness we can put up with. But injustice, makes us want to pull things down".

If the restraining control of Courts was brushed aside, the result would be that for remedying political skullduggery the only course would be for the party to take to the streets. Had Supreme Court not wisely intervened, the inevitable consequence would have been the street riots – can any one view it with equanimity.  «