A debate in search of Speaker

By saying that he would neither accept nor respond to the Supreme Court notice, Lok Sabha Speaker Somnath Chatterjee may have triggered a ne...

By saying that he would neither accept nor respond to the Supreme Court notice, Lok Sabha Speaker Somnath Chatterjee may have triggered a new round in the tug of war between the legislature and judiciary. The notice was issued to him by the apex court to reply to a petition by expelled BSP MP Raja Ram Pal, challenging the powers of the House to expel a member. Although this is not the first time that a stand off has crystallised between the legislature and judiciary, this is the first time in independent India that a speaker has declined to accept the court notice, that too from the highest court of justice in the land. In other cases, speakers did at least reply to the notices contending that the issue could not be called into question by a court of law. Chatterjee responded to the notice by announcing in an all-party meeting that he would not respond to it.

His stand appears to draw from Article 105 of the Constitution, under which an act of a member of the House inside Parliament and/or that of a House committee could not be called into question by a court of law. The most visible example is the Jharkhand Mukti Morcha JMM bribery case in which the SC had upheld a practice of the House of Commons. India does not have a specific law made by its Parliament on matters relating to calling into question the conduct of the House or an individual member inside the House. Hence, the practice of the House of Commons where the House could expel or suspend a member was upheld in the case. The five-member Constitution bench headed by Justice S.P. Bharucha retired since held in the JMM case that a member who accepted the bribe money and voted in a particular manner could not be called into question by the court, for, he had acted 8216;8216;in a particular manner inside the House8221; and held that a member who accepted the bribe money and did not vote or abstained from voting could be held responsible and answerable. In the same judgment the court held that since there was no law relating to the privileges of a member, the practice of the House of Commons should be followed. Under this practice, a matter is referred to an ethics committee or a regulatory committee and the House can act on its report, including expelling the errant members.

Chatterjee8217;s announcement that he would not even 8220;receive nor respond8221; to the notice may perhaps be supported by the JMM judgment. But he could have at least responded to the notice, as in his own words no 8220;organ of the government is the supreme organ8221; and every organ8217;s independence should be respected. Chatterjee could have replied to the notice detailing the reasons why the judiciary has no jurisdiction over the matter.

For, in sharp focus are several provisions of the Constitution, which the five member full Constitution bench, to be constituted by the apex court would interpret and hear arguments on. Chatterjee should assist the court with his arguments through a senior counsel to establish and settle the law over the judiciary8217;s jurisdiction in such matters. His outright rejection of the court notice will mean that the case would go unassisted by the speaker and Lok Sabha.

Six important provisions of the Constitution come into debate in the instant case: Articles 83, 84, 101, 102, 103 and 105. Under Article 83 the duration of the House is for five years and logically a member8217;s duration is also for five years which the House could not reduce. Article 84 provides that a person has to be a citizen of India to become a member of the House and also provides for 8220;other qualifications8221; to be enacted as law by Parliament. This area is still not defined as there is no law enacted so far. Article 101 provides for 8220;vacation of seats8221; and under 102 a member is disqualified 8220;if he holds any office of profit8221;. Article 103 provides for the reference of disqualification of a member to the president who gives his final verdict after obtaining the opinion of the election commission.

Earlier, in the Hardwari Lal case, the Punjab High Court had held that the expulsion of Lal, a Congress member, was wrong. It quashed the expulsion of the member and the matter remained there as no appeal was made to the SC. The Madhya Pradesh High Court had held a different view: that a court of law could not call into question such functions of the legislature. With conflicting verdicts from different high courts, the apex court had yet to settle the issue. For the first time, perhaps, the issue has come before the SC for a final resolution.

With the stand he has taken, Chatterjee actually misses the opportunity to argue his case that the judiciary has no role in such matters and that the legislative function is supreme and sovereign.