Parliament versus Courts: Episode Three

The quota controversy between the courts and Parliament is no less important than the property and parliamentary sovereignty controversies of the Nehru and Mrs Gandhi eras. Battle lines have been drawn

There is a distinction between ‘being controversial’ and ‘being involved in a controversy’. Is the relationship between judges and the government controversial? Or have they simply been drawn into controversies? India’s mild mannered prime minister has told the judges that they should not overreach themselves. Chief Justice Balakrishnan’s reply was both diplomatic as well as insightful in welcoming some degree of tension between the government and the courts. Perhaps this goes to the core of the inevitable polarity between the rule of law (of which the judges are custodians) and democracy (whom politicians represent). The people do not really figure in all this — even though both sides claim to represent the cause of “We the People”.

The tension between Parliament and the courts falls into three phases. Since 1950, judges and politicians have been embroiled in three major controversies. In Nehru’s time the controversy over property rights continued from 1951 to 1964. Faced with constitutional amendments, the Supreme Court backed down. In Mrs Gandhi’s first reign the controversies from 1967-1975 were over parliamentary sovereignty and other matters. The court refused to back down. In 1973, the court curtailed the power of amendment itself. In Mrs Gandhi’s second reign (1980-84), the court was a little more resilient and accommodative on constitutional amendments and the basic structure.

We are now in the midst of the third major battle between Parliament and the courts. This started in 1992 and continues till Justice Pasayat’s interim order of April 2007 and beyond. The sequence of events is important. In 1992, the Mandal decision allowed OBC quotas but not for promotions. Constitutional amendments in 1995 reversed the Supreme Court on accelerated seniority. Following the TMA Pai and Inamdar cases (2002-2005), a constitutional amendment in 2005 enabled reservation in private educational institutions.

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The parliamentary debates on these amendments are of poor quality. Each amendment was consciously passed hurriedly amidst party consensus. Even so, the quota controversy between the courts and Parliament is no less important than the property and parliamentary sovereignty controversies of the Nehru and Mrs Gandhi eras. It is being handled less contentiously but the battle lines have been drawn.

Politicians are wary of the courts for personal as well as public reasons. Court decisions on politicians may not affect political careers but tarnish reputations. Nehru had no difficulty in responding to court and parliamentary notices for contempt. He did so with grace, submitting to the rule of law. Chief Ministers P.C. Sen in 1969 and E.M.S. Namboodiripad in 1970 accepted Supreme Court decisions finding them guilty of contempt. But Mrs Gandhi in 1975 changed the Constitution and called an Emergency (1975-77) to evade the decision of the Allahabad High Court unseating her as an MP. Since then, courts make news every time they hear a matter whether it relates to Sanjay Gandhi’s bail, the Bofors case, Jayalalithaa’s cases, the Sankaracharya affair, the MPs’ bribery case, Hawala, the Mayawati trapezium story, Lalu Prasad or Mulayam Singh or others. Public corruption is a big issue in the courts. Politicians do not know how to submit to the rule of law.

The second major area of discontent is the public interest posture of the courts which appoint commissions and make policy decisions outside their domain. We may be grateful for CNG-run traffic in India. But can the Supreme Court clean the Ganga and Yamuna? Can a case concerning forests go on for years — with decision-making shared with an amicus and a Supreme Court created committee that holds hearings with pride and prejudice as if it were a consultative wing of the Supreme Court. The Delhi sealing orders cost the Congress the election. Encroachments may be a matter for the court, but land use planning is a policy issue. In my view, the Supreme Court seems to have a promethean view of its unlimited right to lay down a due process on arrest in D.K. Basu’s case. It reached the outer edges of its power when it actually legislated a code on sexual harassment in 1997. But, its decision on reordering the working of the police in 2006 was a policy decision of the Constitution.

The third major area of discontent is that in recent years, the courts have taken over judicial appointments in high courts and the Supreme Court in an arbitrary and non-transparent way. In the past year or so, Justices Vijendra Jain’s and Bhalla’s transfers as chief justices of high courts have made the public curious about what goes on behind the scenes. President Kalam had returned files in these cases. A right to information plea about the ‘Bhalla’ case invites us to ask for transparency. There is much in the judicial arena which appears arbitrary, suggests overreach and needs investigation for corruption. There is smoke. Is there a fire? The remedy of a Judicial Commission needs immediate attention.

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Fourthly, we enter the most contentious area of quotas. No doubt, this issue is bathed in electoral politics. It revels in caste-based politics. But it also raises ideological issues which go to the root of the purposes of the Constitution. There is a very major concern whether the right to equal opportunity for self advancement in education and government jobs implies that empowerment is reserved only for the rich. The TMA Pai decision (2002) left everything to the market — leaving the government to cater for over 70 per cent of the population? The Mandal decision (1992) brokered a peace but left loose ends to create future controversies with Parliament making major quota amendments to the Constitution. These are both peoples’ vote issues as well as ideological confrontations. There is an ideological divide on the meaning of the Constitution.

Under our Constitution, judges are custodians of the juristic texts of the Constitution and the rule of law; politicians are the custodians of the political texts and democracy. Justice Pasayat’s interim order that the government has not done enough homework to enable OBC reservation for educational institutions has shaken the establishment. The government’s face-saving answer is that it will place matters before the courts and let them decide. In recent Constitution Benches, the courts have backed off, but left the government in knots. We are in the midst of a controversy as big and complex as the property and sovereignty controversies of the Nehru and Mrs Gandhi eras. The government seems courageous without being gutsy.

The writer is a constitutional expert