Adhere to Lakshman Rekha

Both Legislature and Judiciary should work in cooperation with each other, avoiding conflict and collision

By Author Vanam Jwala Narasimha Rao   |   Published: 5th May 2018   12:06 am Updated: 4th May 2018   7:04 pm

The Telangana State Legislative Assembly through a unanimous resolution expelled two Congress MLAs in its Budget session. In response to an appeal by the expelled members, a single-judge bench of the High Court at Hyderabad struck down the decision of the House and directed that their membership be restored.

It is, however, debatable as to who should implement these orders — the Executive represented by the Telangana government or the Legislature? Moreover, if the Legislature gives a decision, can it be subjected to judicial purview in accordance with the provisions of Constitution? Executive, Legislature and Judiciary are expected to function within their limits as defined in the Constitution under the fundamental principle that one is not superior to the other.

Pros and Cons

Meanwhile, 12 MLAs of the TRS have approached the division bench of High Court against the single bench judgement and the final decision is awaited. This may not end here and might go to the Supreme Court. Against this background, it is interesting to analyse the pros and cons of this matter.

The debate with regard to which is superior — Legislature or Judiciary – is as old as the Constitution itself. In fact, it is not limited just to India and has engaged 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 opines that the Legislature, which represents the will of the people through the elected representatives, is supreme in every aspect.

The fact is that the selection of judges is done by the Executive, which is the Government, whereas the Legislative members are directly elected by the people and are the true representatives of the people.

Independent Yet Together

In India, both the Legislature and the Judiciary are supreme and 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 the 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 overriding power over the Legislature and can say ‘no’ to a decision taken unanimously by the House? For instance, within the constitutional framework, if the Legislature takes some revolutionary decisions for the betterment of socio-economic conditions of the oppressed and downtrodden, can the courts strike it down? If so, is it not challenging the democratic spirit? Does it not amount to hurting the feelings of the majority of the people? We follow parliamentary principles of the British system, where parliament is supreme.

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 a single judge? It was observed that the expulsion of members was against natural justice. Then was the decision of a single judge against the decision of majority people also not against natural justice? This needs a vibrant debate.

Past Cases

On December 12, 2005, in a sting operation by a TV channel, 11 MPs — ten from the Lok Sabha and one from the Rajya Sabha — were shown being paid money for raising a question in Parliament. Parliament responded quickly by expelling them and terminating their membership by a motion of each House. The motion was passed on December 23, the last day of the winter session.

One expelled member challenged the decision of Lok Sabha Speaker Somnath Chatterjee in the Supreme Court following which the SC served a notice on the 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. It was unanimously decided that it was the privilege of the House to take disciplinary action against its own members. The expulsion was within that disciplinary action. It was further held that the Speaker was the sole custodian of the rights and privileges of the House and, hence, not answerable to the Judiciary.

Briefing the media, Chatterjee said, “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 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 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.

The bench referred to the majority decision of the constitutional bench of the Supreme Court in 1976, which became infamous as the habeas corpus case, in which four judges went with the then Congress government’s view that even right to life stood abrogated during the Emergency.

The bench also pointed out that it was Justice Khanna, who rightly gave a dissenting judgment by holding that the 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 high court in this regard.

For good governance and for the survival of democracy, the Judiciary and Legislature should work in coordination within the broad framework of constitutional checks and balances, without finding fault with the other body.

(The author is Chief Public Relations Officer to the Chief Minister of Telangana)