The Hindu : The Judiciary and the Legislature

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Tuesday, Apr 01, 2003

Opinion

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The Judiciary and the Legislature — II

By V.R. Krishna Iyer

Our Constitution desires mutual reverence between the two institutions.

A CERTAIN lofty courtesy, innocent of measly rivalry, must inform and illumine the mutuality between the Legislature and the Judiciary. Judge power is central to the constitutional order and the Legislature must deal with reverence towards the Judiciary. Judicial independence and immunity are unassailable. This is fundamental. At the same time, the House in large measure has a representative character and the court can never act as a third chamber of the House, even though it has the power to strike down an unconstitutional legislation and pronounce upon excesses outside the legislative chamber.

Having said this, our law lords must know their limitations. The power to interpret law and adjudicate upon disputes is vested in the courts. This must be unreservedly accepted by the legislators and the Speaker. There is no competitive spirit but fair accommodation by each of that portion of sovereignty which is assigned under the Constitution to the other. When the court addresses the Speaker, great respect must be shown — he should not be commanded to appear in court. The purpose of the judge issuing the summons is not to exercise authority but to give an opportunity. Once this aspect is understood, the Speaker's point of view, if any, may be brought to the notice of the court through the Advocate-General who is a constitutional entity. The Secretary of the Assembly can give the necessary instruction and bring to the notice of the House that its proceedings are altogether beyond court purview. There is an absolute bar to enquiry by the court into the proceedings inside the House.

Likewise, the freedom of speech of the members inside the House is a great guarantee of democracy. Free debate in basic and what is said cannot be censured by any curial process. Judges are protected in their conduct even inside the House since they are beyond the pale of intra-mural criticism. When the conduct of a judge comes under censure in the course of a debate, the Chair must pull up the member and expunge the violative portion of the member's expression. Unfortunately, when this is not done, there is no specific provision in the Constitution to set right the deviant. Can the court intervene when its conduct is debated in violation of the constitutional provision? This is a grey area. Again, it must be noted that what is absolutely protected inside the House is freedom of speech and to vote — nothing beyond. Suppose a member attempts to murder and there is violence in violation of proper conduct, what happens to the offences so committed? I should assume that the Speaker is the supremo and may summon police help but beyond that, the court does not lose its jurisdiction to try a murder merely because the venue is the House. Where lawlessness, departing from the rules of conduct, takes over, the law of the land and the authority entrusted with the administration of justice do not blink at the scene. These are matters which Speakers' Conferences must discuss and take decisions, where judges and jurists must ponder and consider solutions. What our Founding Fathers did not dream of are now becoming vulgar realities. The law of contempt power enjoyed by the House and the court may be pressed into service up to a point, but there is still need to examine the contra-constitutional developments, so that orderly administration of the legislative and judicial business may be ensured as part of our civilised democratic order.

A source of functional confusion relating to the Speaker vis-a-vis the higher judiciary needs specific mention. The Tenth Schedule vests in the Speaker the power to decide on questions of legislators' defection. When he rules under the Schedule, he acts as a tribunal and his finding, if arbitrary, is vulnerable to judicial review. The provisions in Article 6 and 7 notwithstanding, the court can examine the validity of the Speaker's holding. A Division Bench of the Kerala High Court, speaking through Narayana Kurup. J., has eruditely expounded the law:

"By applying these well known and accepted tests of what constitutes a Tribunal, the speaker or the Chairman, acting under paragraph 6 (1) of the Tenth Schedule of the Constitution has been held to be a Tribunal. In Kihota Hollohon v. Zachilhu (AIR 1993 SC 412) the Supreme Court held that the Speaker while exercising powers and discharging functions under the Tenth Schedule acts as Tribunal adjudicating rights and obligations under the Tenth Schedule and his decisions in that capacity are amenable to judicial review. It was also held that the concept of statutory finality embodied in paragraph 6 (1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity are concerned. Therefore, the question relating to the jurisdiction of the High Court to entertain writ petitions challenging the orders of the Speaker now stands concluded by the aforesaid judgment of the Supreme Court in Hihota Hollohon v. Zachilhu (AIR 1993 SC 412 supra) case wherein the provisions of Paragraph 7 of the Tenth Schedule which bars jurisdiction of courts in respect of any matter connected with the disqualification of a member of a House under the Schedule have been held to be unconstitutional and it has been held that the Speaker while passing an order in exercise of his powers under sub-paragraph (1) of paragraph 6 of the Tenth Schedule functions as a "Tribunal' and the order passed by him is subject to judicial review under Arts. 32, 136, 226 and 227 of the Constitution."

The constellation of propositions which crystallises from this long exposition may be presented as pervasive principles which possess constitutional paramountcy. The first fundamental is that judicial independence never bends or bows before the Executive or the Legislature, as laid down by the nine judges' Bench in the Judges Case. This doctrine puts the judges in their forensic performance beyond the contempt power of the Legislature. The judges, in their curial capacity, are not answerable to the House or its officers.

Second, judicial supremacy derived from the Constitution and specified in Articles 32, 142, 136, 226 and 227 empowers the court under public law to decide any case brought by any aggrieved citizen against any order, fiat or ukase emanating from any authority in the House. The legality of such a directive, if it operates from any conduct of a citizen outside the House, is amenable to judicial jurisdiction. However, if the action is taken by the Speaker in the legislative chamber, the court cannot sit in review, the plenary authority being vested in the House. Even here, if what is alleged as the basis of action is a privilege of the House or member, it is open to the court to examine whether such a privilege exists provided that the Assembly's action infringes, prima facie, a fundamental right of the citizen.

Third, whatever is spoken (or voted upon inside the House) is beyond the power of the court to investigate or adjudicate. The member's conduct inside the chamber is immune to judicial scrutiny. Fourth, even if a member, contrary to the express provision of Section 211, does indulge in improper speech, the corrective mechanism is the Speaker, not the court.

Fifth, when the court, in connection with any matter pending before it, requests the Speaker for information (or for the purpose of affording an opportunity for explanation makes a request) it behoves the Speakerto respond in a spirit of cooperation. Sixth, the court shall hold the Speaker and the proceedings of the House in all solemnity. And seventh, when the Speaker decides a matter bearing on the defection law, judicial review is integral to constitutional law. The glory of our Constitution desires mutual reverence between the Legislature and the Judiciary in such a manner that comity and camaraderie become the majestic modus vivendi.

(Concluded)

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