Opinion - Editorials   

RESTORING THE BALANCE

THE CONCERN EXPRESSED by the Conference of Presiding Officers of Legislative Bodies convened by the Speaker of the Lok Sabha, Somnath Chatterjee, over court orders that tended to "disturb the delicate balance of power" between the legislature and the judiciary represents an attempt to roll back the dominant role courts have come to play in national affairs. Coming in the wake of the happenings in Goa and in Jharkhand, the call to respect the legislature's right to manage its own proceedings as provided in the Constitution may be dismissed, in some quarters, as seeking a licence for partisan presiding officers to subvert constitutional governance. The larger issue, however, will still remain: the dramatic shift in the balance of power from both the executive and the legislature to the judiciary over the last three decades. In 1964, the Uttar Pradesh Assembly could imagine that it was within its powers to order that two judges of the Lucknow Bench of the Allahabad High Court, who released on bail a person sentenced to imprisonment for contempt of the House, be taken into custody and produced before it — a move that is inconceivable in the present context. It is a measure of how far the balance has shifted that the Supreme Court could, in the Jharkhand case, direct that its own order be taken as notice for the Assembly session that was advanced; put legislators on notice of good behaviour; order the video recording of the proceedings to be produced before it for review; and, contrary to the usual order of business in a new House, direct that the vote of confidence be taken up before any other business including the election of the Speaker.

Over the years, the jurisdiction of courts has seen a continual expansion, but it has not been through institutional self-aggrandisement. The transgressions and defaults of governments and legislatures and the general failure to observe constitutional conventions have forced the courts to step in amidst public applause, often for the good but at times unnecessarily too. In case a government was not serious about investigating a corruption charge or if a legislature claiming sky high powers ordered the arrest of an individual in the name of exercising its privileges, courts have set things right. On the other hand, the higher judiciary has appropriated for itself the power of appointment of judges, even if it be to remedy a situation of gross misuse by the executive of the power vested in it by the Constitution. It has also gone into such areas as pollution control that are difficult to manage judicially.

In the constitutional scheme, legislatures are allowed to devise their own procedures and manage their proceedings without intervention by courts. Yet if a Speaker were to abandon all scruple and through the device of disqualification or other sleight of hand convert a minority into a majority, what will be the remedy? In such a situation, the courts have a clear duty to intervene but they also need to fashion the remedies in a way that is sensitive to the powers and position of the legislature and not treat it as just another litigant. It was this sensitivity that was missing in the Jharkhand order although its flaws were overshadowed by the enormity of the Governor's wrong and the stalling of the floor test. If the courts then need to rethink the intrusive role they have come to play, the legislatures, which have much to answer for, must demonstrate through their conduct that they are worthy of the confidence placed in them by the Constitution. Were the courts merely to step back without the legislatures and the presiding officers showing a greater commitment to fairness and constitutional norms, the country will find itself in a situation far worse than the constitutional imbalance created by judicial overreach.

Printer friendly page  
Send this article to Friends by E-Mail

Opinion

News: Front Page | National | Tamil Nadu | Andhra Pradesh | Karnataka | Kerala | New Delhi | Other States | International | Opinion | Business | Sport | Miscellaneous | Engagements |
Advts: Classifieds | Employment | Updates: Breaking News |

Stories in this Section

RESTORING THE BALANCE
NO SAVINGS FOR SENIOR CITIZENS
On improving the quality of democracy
Warped reality of the occupiers
Legislature & judiciary
Visa row
Challenge to sovereignty

Copyright © 2005, The Hindu. Republication or redissemination of the contents of this screen are expressly prohibited without the written consent of The Hindu