The wall of separation must not be breached

Parliamentary and legislative supremacy in their spheres of functioning should be respected under a sovereign constitution

Charles Bradlaugh was elected to England’s Parliament in the year 1880. He was an atheist, and refused to take oath as a Member of Parliament in the name of god. The Serjeant of Parliament, one Mr Gossett, refused to seat him in Parliament. Bradlaugh appealed to the courts. The courts said they could do nothing. The House of Lords, in Bradlaugh vs Gossett, held that the actions of the Serjeant at Arms were subject to the sole jurisdiction of the House. The courts had no power of review over them.

A certain Keshav Singh was sentenced to a week’s imprisonment in 1964 for breach of privilege of the Uttar Pradesh Legislative Assembly. Subsequently, a petition filed by him was listed before the Lucknow bench of the Allahabad High Court. When the case was called out, the government advocate was not present. The petition was admitted, and as the sentence was only one week, Singh was directed to be released on bail during the pendency of the case. The assembly took umbrage to this. The order of stay passed by the bench of two judges was regarded as a breach of their privilege. Soon thereafter, the assembly made an order directing the Marshal of the assembly to arrest the two judges and produce them before the Bar of the House. These judges approached the full bench of the Allahabad High Court, which protected them from arrest. According to Shanti Bhushan’s recollections, Justice Nasirullah Beg, who had been ordered to be arrested and confined by the marshals of the UP Legislative Assembly, was waiting with a loaded gun, ready to shoot down the marshals and protect the honour of the Allahabad High Court.

At this stage, the President of India made a presidential reference to the Supreme Court on the relative powers of legislative assemblies and constitutional courts. The Supreme Court, answering the reference, held that there is a broad separation of essential powers of each organ of the State. However, the court went on to hold that a judge who entertains a petition challenging any order of the legislature imposing any penalty on the petitioner for its contempt “…does not commit contempt of the said legislature and the legislature is not competent to initiate proceedings against that judge.”

Ever since, it has generally been a “hands-off” position as far as the courts interfering in the workings of legislative assemblies or Parliament is concerned. The sole exception is under the anti-defection law -- after a final order of disqualification has been passed. This is because the Supreme Court in Kihoto Hollohan’s case in 1994 held that the Speaker acting in disqualification matter acts as a tribunal and is subject to judicial review.

It is in this light that Wednesday’s order of the Supreme Court in the Karnataka legislature’s case must be seen. The court has said that “Constitutional principles should not receive an exhaustive enumeration by the court unless such an exercise is inevitable and unavoidable to resolve the issues that may have arisen in any judicial proceeding.” Even so, it has sought to put in a via media. It has ostensibly refused to give any directions to the Speaker in the matter of deciding upon the resignations. However, in the facts of this particular case, it made a seemingly careful, but surprising inroad.

It made clear that “the 15 members of the assembly ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same.” This direction effectively emasculates any whip that the legislative parties may issue to the party concerned. The anti-defection law that is contained in the 10th schedule of the Constitution is predicated upon disqualification on disobedience of a binding whip upon members. If members are free to disobey the whip, the heart and soul of the anti-defection law is lost.

The Supreme Court by an interim order has effectively protected the Aya Rams and Gaya Rams of the Karnataka Assembly. This is a precedent which will continue to haunt the body politic for a long time to come, and will invite judicial intervention in the future from the high courts and Supreme Court into the internal workings of Parliament and legislative assemblies in matters of defections.

The walls of separation between constitutional organs, once breached, cannot be then repaired against future intrusions. Even under a sovereign constitution, parliamentary and legislative supremacy in their spheres of functioning should be respected. As Portia said: “Twill be recorded for a precedent, and many an error by the same example will rush into the state: it cannot be”.

Sanjay Hegde is senior advocate, Supreme Court

The views expressed are personal