Recent months have witnessed many interesting legal developments in India. I hope that some of us who were active earlier can revive this blog. While it was alive, this blog provided a valuable forum to both learn about and discuss the transitions that are currently being experienced by the Indian legal system.
The latest issue of Frontline (Feb 09, 2007) has a cover story called "Judicial Challenge: Supreme Court judgment on Ninth Schedule triggers debate on separation of powers between judiciary and legislature." Though focused on the I.R. Coelho case, it also contains additional commentary on the Raja Ram Pal case, as well as an interview with the Speaker of the Lok Sabha, Somnath Chatterjee, who continues to adopt the combative stance towards the judiciary he has been taking for some time now.
Writing about the Coelho case, V. Venkatesan asserts that it is "disturbing because it emphasises fundamental rights over the directive principles of the Constitution at a time when the neoliberal agenda of the state is being endorsed in various judgments of the Court" To make this claim, Venkatesan cites Indira Jaisingh's analysis on rediff.com that Coelho is a potentially regressive decision.
While Venkatesan's description of the details of the case is helpful, his analysis and conclusions are debatable. For instance, it is not immediately clear why the decision is necessarily anti-progressive. Indeed, one can argue, as Pratap Bhanu Mehta did in his Indian Express article appropriately titled "No dark spaces", that the Court's judgment in Coelho can be interpreted as advancing an ideal of public reason, where no governmental agency or authority can claim that its judgment or actions are the last word in a constitutional democracy. By asserting that the Ninth Schedule is no longer a "hands-off" zone, the Supreme Court is arguably advancing the claim that all public decisions in India must be subjected to rigorous scrutiny and debate. Of course, the obvious problem with this interpretation is that the Supreme Court does not include itself within this paradigm and has, as a result of its recent rulings in Contempt of Court cases, as well as the judicial appointments cases, reserved its own right to have the last word in several matters relating to the judiciary in India.
Somnath Chatterjee's interview has many interesting statements, which showcase his strengths as a lawyer. This following statement builds the case for what is clearly problematic about much of the recent jurisprudence of the Supreme Court:
"You can see that these were all basically people's wishes being given legal shape by the legislatures. That is why legislatures exist. To give expression to, and make laws to channel, the people's wishes. With all humility, let me point out that the Supreme Court cannot make laws.
It would be a total misunderstanding of the Constitution to say that the orders declared by the Supreme Court would be the law of the land. In the process of declaring orders, the Supreme Court cannot create new laws. Nor can it amend laws. If there is some uncertainty about the interpretation of any particular law, it can clarify and come up with a clearer interpretation. But it cannot say that there is uncertainty in such and such a law and hence we are making a new law. And I have great doubts about the monitoring committees that are being set up. With all my respect to the Supreme Court, I wish to say that these are all unnecessary forays into areas that are to be basically defined by the legislature.
I do not know why this is being done when the judiciary has enough problems of its own in the form of huge accumulation of cases. (Emphasis added)."
Note the slight dig at the end, to emphasise the principal argument about democratic or popular sovereignty. Continuing in this vein, Chatterjee asserts:
"One of the primary tasks in politics is to recognise the aspirations of the people and the downtrodden and take steps to give them concrete shape. Make no mistake; legislatures have not been constituted to promote literary debates. As an instrument of the Constitution, the judiciary is also not a centre to promote legal learning. The institution is as much obliged to the people's interests and has to see that it has a justifiable reflection in its functioning. Now, who understands the people's interests better? Who is authorised under the Constitution to advance the interests of the people? It is the legislature. Now, an assumption is being sought to be built up that Parliament, as a whole, does not understand the public interest.
In my humble opinion, the judiciary must accept the legislature's views on the public interest where it has been unambiguously expressed. The judiciary, sitting in ivory towers, is not even supposed to take part in political discussions. I think that this is an unnecessary controversy that is being created. Ultimately, it will not be good for the nation. See, I yield to none in my respect for the judiciary. But I am also a strong proponent of the constitutional provisions of the country."
All these are propositions which are hard to disagree with, and are expressed in reasonable and persuasive terms. However, it is while discussing the MPs exclusion case, that Chatterjee's reasoning becomes less convincing. On that issue, he is broadly supportive of the Court's ultimate decision. Yet, he adds a rider:
"I must also add that the Court has come out with certain disquieting observations too while delivering the judgment. It has been held that legislatures in India cannot claim immunity from judicial scrutiny even in respect of their internal proceedings as such immunity militates against the Constitution. I would like to humbly submit that I do not agree with this. I had not said this earlier and I do not want to make an issue out of this because I am of the firm opinion that the situation that the Court has defined as suitable for judicial scrutiny would never arise. ... ... ...
My humble contention is that no one is above the Constitution. If the Constitution of India has said that no court shall have jurisdiction over the internal proceedings of the legislature, the Court cannot annul it with some sort of interpretation. So, I am hopeful and I believe that the Supreme court, in its wisdom, will not in the future or ever accept any attempt to have such interpretations, which would allow an interfacing supremacy."
The problems with this line of reasoning are clearly set out in A.G. Noorani's searching piece describing and analyzing the January 10 decision of the Supreme Court in Raja Ram Pal, where he analyses the constitutional provisions, the historical context of Parliamentary privileges in India, and the leading cases that had analysed this issue in earlier eras. Noorani concludes that there is no basis for the claim - asserted by Chatterjee among others - that Parliamentary privileges are paramount, and are some kind of an inviolable space. Noorani criticizes the judgment of Chief Justice Sabherwal for, among other things, not clearly setting out that Parliamentary privileges in India are limited and cannot prevail over fundamental rights, especially the right to freedom of speech.
Whatever be one's personal views on these two cases, it seems indisputable that they can justifiably lay claim to being 'landmark' cases.