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| Sunday, 22 January 2006 |
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Courting trouble Between the Lines by Kuldip Nayar It is ironical that the biggest challenge to the Indian constitution has come in January, the month in which the country introduced it as far back as 1950 to become a republic. Unfortunately, the challenge is developing into some sort of a confrontation between the legislature (Parliament) and the judiciary (the Supreme Court). Both are creatures of the constitution which has delineated their respective territory. Yet, both look like transcending the limits and going relentlessly towards a point where both can burn their fingers, one probably more than the other. It all began over the expulsion of 11 Lok Sabha members from parliament because they had accepted money for raising questions in the house. Through a sting operation, a TV network had shown them taking the bribe. The Lok Sabha Speaker, Somnath Chatterjee, constituted an all-party inquiry committee which recommended their expulsion. The Speaker implemented the decision to the public applause. For the first time, the prestige of parliament went up in the eyes of people. The members, however, knocked at the court's door. The conflict with parliament began when the Supreme Court referred the matter to a constitution bench to examine whether parliament had the powers to expel its members. The Supreme Court took all the care not to disturb the Speaker's sensitivity by observing that it was not concerned about "the merit of the case." Nor did the court give a stay which would have resulted in restoring the members' right to sit in the Lok Sabha. Still, the Speaker took umbrage to the Supreme Court's admission of the members' petition. The Speaker has said that his stand "remains the same." That is, "I cannot help anyone from going to court. But, according to me, the courts have no jurisdiction at all in the matter. Any order is not binding on me." I appreciate the Speaker's touchiness. Indeed, parliament, elected by people, is supreme. But a judicial review is the basic structure of the constitution. The case of expelled members does not relate to the question who has the last word - whether parliament or the Supreme Court. The point at issue is if the Supreme Court is correct in examining the extent to which parliament can go in punishing a member. It is apparent that the Supreme Court has been quite circumspect in its brief order: "The notices to the respondents are to assist the court in adjudication of the matter." The words used are "to assist." There is not even a whiff of suggestion that the Speaker has been put in the dock. The order merely seeks his help to interpret the constitutional provision on the disqualification of a member. The Supreme Court is at pains to explain that "we are not on the merits of the case, we are only on the constitutional provision whether Article 105, setting out the privileges of members of parliament, encompassed the power (in parliament) to expel a member." Article 105 which defines powers and privileges of the members does not say much. Nothing has been "defined." Until it takes place, parliament follows the House of Commons in the UK. Not a compliment to the Indian parliament which has not codified its privileges and powers for more than five decades. It is obvious that it does not want to do so because the undefined territory is any day better and larger than the defined one. But the big difference between the UK and India is that former does not have a written constitution while the latter has. One depends on vague precedents and the other on cold provisions. Chatterjee's stand, however democratic and laudable, cannot be above the constitution which is supreme. The question is not about the expelled members but that of the constitution's interpretation. This is the court's job. As far back as 1803, the US Supreme Court upheld in the Malburry vs Madison case that a judicial review is in order even after what the US Congress had decided. In India itself, there is one judgment by the Madhya Pradesh High Court which is in favour of the Speaker's stand and another by the Punjab and Haryana High Court that is against it. In 1957, a UP journalist was punished by the Allahabad High Court and all the 29 judges on the bench endorsed it. The right to appeal was also extinguished. However, the Supreme Court said that it was the final authority and let the journalist free. In the days of Jawaharlal Nehru, there was a similar case in the Lok Sabha. A member was caught taking a bribe for asking a question in the house. Before the resolution to expel him was adopted, he resigned. At that time, the question had taken the shape of morality, whether such a thing behoved a member and parliament. This was probably because the ethos of independence struggle denoting high moral standards had not dimmed then. This time the constitutional aspect has come to the fore. None has mentioned the word, "moral." I do not know what shape the crisis will take. But the Supreme Court has to carry out its job, however controversial and onerous. This is an issue which is bound to be raised in the years to come. It is better it is out of the way now. In no way should the prestige of the Supreme Court lessen. The manner in which the government has handled the Bofors guns scam, simmering for the last 20 years, does not indicate that New Delhi is conscious of the scant respect it has shown to the Supreme Court. It has ordered not to defreeze the Rs. 20 crore accounts of Ottavio Quattrocchi in London banks. Defence Minister Pranab Mukerhjee argues on behalf of the government that India has no jurisdiction over foreign banks. This remark is meant to scoff at the Supreme Court. Of course, everyone knows what Mukherjee has said. The question that arises is why the government sent additional solicitor general to defreeze the account when the case against Quattrocchi was pending before the Delhi High Court. More than that, when the Supreme Court directed the CBI on January 16 to ensure that Quattrocchi did not withdraw the money, the latter sends the order four days later. The British authorities went on saying that they were awaiting the Government of India's fresh request to "refreeze" the bank accounts. No authorisation was given to the Crown Prosecution Service to approach the British courts. Who is to blame? Surprisingly, Quattrocchi withdrew money on January 11 and it turns out that New Delhi knew about it. Why the CBI did not tell the court about it? It's more than a coincidence that a television network broke the story that very evening. Whoever gave it information made sure that Quattrocchi had withdrawn the "kickbacks." Any bets who could have done it? |
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