Adhere to Lakshman Rekha : Vanam Jwala Narasimha Rao

Adhere to Lakshman Rekha

Vanam Jwala Narasimha Rao

Telangana Today (05-05-2018)

              The Telangana State Legislative Assembly through a unanimous resolution expelled two Members of the Legislative Assembly belonging to Congress party in its budget session. The House made it abundantly clear that they shall not continue as MLAs. In response to an appeal by the expelled members, the single bench High Court of Hyderabad in a judgement struck down the decision of House and directed that their membership be restored. It’s however debatable as to who should implement these orders-the executive represented by the Telangana Government? Or the Legislature? In case the High Court directions or not adhered to by the Legislature then on whom the responsibility lies is also debatable. It’s further debatable whether once the Legislature in its judicial capacity gives a decision can be subjected to judicial purview in accordance with the provisions of Constitution and whether the Court is within its limits to decide against the decision of Legislature? The three Constitutional wings namely the Executive, Legislature and Judiciary are expected to function within the limits as defined in the Constitution under the fundamental principle that one is not superior over the other.

Pros and Cons

Meanwhile 12 MLAs of TRS Party approached the division bench of High Court against the single bench judgement and the final decision is awaited on this. This may not end at this stage and this might go even up to Supreme Court Constitutional Bench also. Against this background it is interesting to analyze the pros and cons of this matter.

There has been a heated and scholarly debate ever since the Indian Constitution has come in to existence with regards the supremacy of Legislature or the judiciary over the other. The debate in fact is not limited to India. It has exercised the minds of legislators, jurists, politicians and professionals the world over.

Supporters of absolute independence of judiciary argue that in the absence of an impartial, independent and sovereign judiciary, democracy has no meaning. However, the other school of thought opine that, the Legislature which represents the will of the majority of people through the elected representatives is supreme in every aspect and its decision shall be final. The fact is that the selection of Judges is done by the executive which is the Government where as the Legislative members are directly elected by majority of people. They are the true representatives of people.

Independent Yet Together

In India which has a written constitution, both the legislative and judicial organs are supreme for the proper functioning of the largest democracy of the world. At some point we may think that neither legislature nor judiciary can claim supremacy in isolation. Both should work in co-operation with each other, avoiding conflict or collision. While this is so, can the judiciary find fault with the decision of Legislature? When the Constitution stipulates that both these wings should play their role within their limits, how can one attempt to dominate the other? This is certainly debatable.

           Has the judiciary got over-riding power over Legislature and say “no” to the House unanimous decision? For instance, within the constitutional framework, if the Legislature takes some revolutionary decisions for the betterment of socio-economic conditions of oppressed and downtrodden people can the courts strike it down it? If so, is it not challenging the democratic spirit? Does it not amount to hurting the feelings of majority of people? We follow the parliamentary principles of British system which is considered to be the mother of parliamentary democracies and where parliament is supreme. There the Constitution means decision of parliament only.

Natural Justice

            The decision of the Telangana Legislative Assembly to expel the two members was unanimously taken by the House which has 119 members representing the will of crores of people. Can such a decision be reversed by one single judge? It was observed that the expulsion of members was against natural justice. Then was the decision of single judge against the decision of majority people also not against natural justice? This needs vibrant debate. Supremacy of Legislature means respecting the basic principles of democracy because the Legislature is a sacrosanct place representing the majority will of the people. It can take any decision, and no one has power to override it.

            Past Cases

            On December 12, 2005, in a sting operation on Aaj Tak TV Channel, 11 MPs-ten from the Lok Sabha and one from the Rajya Sabha-were shown being paid for raising a question in parliament. Parliament responded quickly by expelling all these eleven MPs. Based on the report of special committees constituted for this purpose, both the houses expelled the tainted members and terminated their membership by a motion of each house. The motion was passed on December 23, 2005-the last day of the winter session.

One expelled member challenged the decision of the Lok Sabha speaker Somnath Chatterjee in the Supreme Court following which the Supreme Court served a notice on the Lok Sabha speaker on January 16, 2006. The court also referred the matter to a constitutional bench of five judges.

Somnath Chatterjee called an all-party meeting on January 20, 2006. It was unanimously decided in the meeting that it was the privilege of the house to take disciplinary action against its own members. The expulsion from the house was very much within that disciplinary action. It was further held that the Speaker of the Lok Sabha was the sole custodian of the rights and privileges of the house and, hence, not answerable to the judiciary for his role in that capacity.

Briefing the media, Chatterjee said that “the Constitution was clear on the jurisdictions of the pillars of democracy” and suggested, “Let us keep within our Lakshman Rekha”. Articles 105 and 122 of the Indian constitution clearly restrict the judiciary from intervention in the business of the legislature.

Judiciary too can Err

It may be mentioned here that an opinion was expressed by the Supreme Court of India in January 2011 wherein it has admitted that the Apex Court’s decision during the Emergency was erroneous and violated the Fundamental Rights of a large number of people in the country. This means that the highest judicial authority too may commit a mistake. Then why not there is a possibility that the lower courts too err?

The bench referred to the majority decision of the Constitution Bench of Supreme Court in 1976, which became infamous as the Habeas Corpus case, in which four judges went with the then Congress Government view that even right to life stood abrogated during Emergency.

The bench also pointed out that it was Justice Khanna who rightly gave a dissenting judgment by holding that issue of writs of Habeas Corpus by High Courts is an integral part of the Constitution and no power has been conferred upon any authority in the Constitution for suspending the power of the High Court in this regard.

The Supreme Court of India, the highest judicial body established by the Constitution is the guardian of the Constitution and the highest court of appeal. For seeking justice, the citizen of India finally approaches the Supreme Court. However, it is debatable whether justice is done always. Under these circumstances, can anyone definitely say that the decision of a single bench judge too could not have been erroneous?

For good governance and for the survival of democracy for ever and ever, both judiciary and legislature should work in cooperation with each other avoiding conflict and collision within the broad framework of constitutional checks and balances, without finding fault with the other body.