Confrontation b/w Judiciary and Legislature in 2006

New Delhi, Dec 27: The year 2006 will be remembered as the year of confrontation between the judiciary and the legislature.

The judiciary pressed for enforcement of 'rule of law' while the legislature protested against judiciary crossing the 'Lakshman Rekha' by encroaching in the domain of the executive and the legislature.

The stand-off started with Lok Sabha Speaker Somnath Chatterjee refusing to submit to the jurisidiction of the courts in the matter of expulsion of 11 MPs after they were caught taking money for raising questions in Parliament while the Supreme Court decided to examine whether the Speaker has the power to expel a sitting member of Lok Sabha or the Chairman of Rajya Sabha has power to do the same to the sitting member of the upper house.

The five-judge constitution bench headed by Chief Justice of India Y K Sabharwal is due to deliver its verdict on the issue before January 14 next year when the present Chief Justice retires.

Speaker has taken the stand that the action of the Speaker can not be challenged in a court of law as Speaker enjoys privilege and immunity for his actions taken in the house.

It is not the only case where the two organs of the state power found themselves pitted against each other but throughout the year the government in a number of cases invited the wrath of the apex court as well as some High Courts for trying to nullify the directions of the court through notifications and laws solely aimed at upsetting and nullifying the orders and directions of the courts.

During the hearing of the sealing matter, the court severly pulled up the government for issuing notifications and bringing in laws to override the directions of the apex court and in its judgment dated September 29 made it clear that legislature lacked competence if the purpose of a notification or enactment was to nullify the judgments of the courts.

The nine-judge constitution bench headed by Chief Justice Y K Sabharwal is also going to deliver its verdict before January 14 next year on the issue of parameters within which a legislation can be put in Ninth Schedule to avoid and escape the judicial review and scrutiny. The court is also examining the issue whether the powers of Parlaiment under Ninth Schedule of Article 31 A of the Constitution are unfettered and whether a law struck down by the court as unconstitutional can be revalidated by the government from backdoor simply by putting the same in Ninth Schedule if it violated the basic structure of the Constitution. A 13-judge bench in Keshvananda Bharti case has already laid down that if an enactment of law violated basic structure of the Constitution or damaged the same that it can be examined by the courts even if the same had been placed in Ninth Schedule.

The apex court delivered another blow to the vote bank policies of the parties in power when a five-judge constitution bench in N. Nagaraj case on October 19 ruled that the state was not bound to provide reservations to the SC/STs in promotions and if it decides to do so it must give compelling reasons for doing so and held that creamy layer among SC/STs are not entitled to the benefits of the policy of reservation. The ruling again led to a lot of hue and cry with the government finally deciding not to exclude creamy layer from the benefits of reservation policy in clear violation of the judgment of the apex court.

The apex court dealt another crippling blow to public servants both politicians and bureaucrats who are facing allegations of corruption when in its judgment in Parkash Singh Badal case delivered on December 6 the court laid down the law that the protection of provisions of sanction was not available to those public servants who are facing allegations of bribe taking or corruption by misusing their official status as corruption can not have any nexus with official discharge of official duty.

The apex court made it clear that the provisions of sanctions were introduced only to protect honest and upright public servants from undue harassment by unscrupluous elements for the actions taken by them in bonafide discharge of their official duty and not for shielding the corrupt and bribe-takers. The judgment again raised lot of dust with legislators again finding the verdict unpalatable and protesting loudly against the judgment of far- reaching consequence which was a decisive bid made by the Supreme Court to cleanse the system by excluding the corrupt from the purview of the provisions of sanctions.

The reaction of Chief Justice Y K Sabharwal and Union Law Minister H R Bhardwaj, was, however, a bit strange when the Supreme Court Bar Association (SCBA) president M N Krishnamani raised the issue of corruption in judiciary in his Law Day speech on November 26. Mr Bhardwaj virtually fell out with SCBA chief publicly.

On the issue of detection and deportation of illegal Bangladeshi migrants who have infiltrated into the border state of Asom and have virtually changed the demographical structure of the states with natives of the state being reduced to minority, the apex court again came down heavily on the Union government for deliberately not complying with the orders of this court and also accused the government of lacking political will to check the problem of illegal migrants which according to the apex court amounted to external aggression.

The Supreme Court also ruled in 2006 that arbitrary use of powers of clemency coferred on the President of India and the state governnors for granting pardon or showing mercy to the convicts shall attract judicial review. The ruling of the five judge constitution bench will have far reaching consequencies for the convicts like Mohamed Afzal facing death sentence in Parliament attack case, who has filed mercy petition with President A P J Abdul Kalam.

The apex court also made it clear that so far as the interpretation of any statutory law is concerned the judiciary has the final word.

In the case of Disqualification of 6 Haryana MLAs by the state assembly speaker under the anti-defection law while upholding the decision of the Speaker, the apex court requested Parliament to consider if it think proper whether the issue of disqualification of a sitting member of Parliament or the state legislature should be decided by the Election Commission in view of the increasing incidents of accusing fingers being raised against the impartiality of the Speaker. The case of 37 UP MLAs who had defected from BSP to the ruling party in the state in 2003 is also being heard by the five-judge constitution bench of the apex court.

The national flag was hoisted in the lawns of the Supreme Court on Independence Day by the Chief Justice of India in a function organised by SCBA.

UNI