M J Antony: Clouds of confrontation

OUT OF COURT

Earlier the strife hinged on ideologies, now the attempt is to legitimise illegalities.

It has been a week of uneasy relationship between the judiciary, the executive and the legislature. First, the Chief Justice of India remarked that the Delhi Laws (Special Provisions) Act 2006 passed by Parliament was "wholly invalid and void". The observation came even before the government had an opportunity to defend its law. The new law had stopped all demolitions and sealing of property in the capital for a year. The judge observed that Parliament had acted more like an appellate authority over the Supreme Court. "This is a legislation to override court orders," he said.

Two days later, the Supreme Court again confronted apparent defiance of its orders by the Karnataka government. Despite detailed examination of the Bangalore-Mysore Infrastructure Corridor project by the Karnataka High Court and the Supreme Court, the state government has set up a judicial commission to go into the very same issues dealt with by the courts. The judiciary has cleared the project of all allegations of corruption and arbitrariness, but the state government was not satisfied. When the issue was taken to the Supreme Court, it again indicated its mind in strong words. The state then climbed down and submitted that it would not go ahead with the commission.

The matter was vitiated further by the remarks of a ruling party legislator in the house casting aspersions on the integrity of the Supreme Court judges who have just retired. The Chief Justice expressed the court's "deepest anguish" at the remarks made in the legislative assembly where the members enjoy immunity for their actions. It may be recalled that the chief minister of that state had some time ago apologised before the court in person for making statements against it after passing a law contrary to the Supreme Court judgement in the Cauvery water dispute.

Meanwhile, clouds are gathering over the Office of Profit Bill which is scheduled to be discussed in Parliament soon. Only two months ago, the Supreme Court reiterated its stand on the issue in Jaya Bachchan vs Union of India, when the actress-turned-politician was disqualified from the Rajya Sabha for holding an office of profit. The new law will confront the principles laid down in the Shibu Soren case in 2001. According to the court, the expression "office of profit" should be interpreted "with the flavour of reality, bearing in mind the object of Article 102(1)(a) of the Constitution, namely to eliminate or, in any event, to reduce the risk of conflict between the duty and interest among members by ensuring that the legislature does not have members who receive benefits from the executive and may thus be amenable to influence."

Last year, the chief ministers and parliamentarians denounced the judgement of the Supreme Court, which dealt with seat-sharing in unaided private professional educational institutions. The court had ruled that the state could not insist on unaided private educational institutions to reserve seats. In a rare retort, then Chief Justice told the Attorney General: "If this is the attitude of the government to go after a judgement without understanding it, then wind up the courts and do whatever you want." The Attorney General apologised and the Parliamentarians retraced their steps.

However, the law-makers have not heeded to this day the most important part of the judgement, P A Inamdar vs Union of India. It was a call to Parliament and the state legislatures to pass appropriate laws to clear the mess which has been prevailing in the fields of admission and fee structure in professional colleges. The law-makers have so far pretended not to have read the following passage: "It is for the central government, or for the state governments, in the absence of a central legislation, to come out with a detailed, well-thought-out legislation on the subject. Such a legislation is long awaited."

Confrontations between the court and the two other arms of the state are, however, not new. The very first amendment to the Constitution was provoked by two judgements of the Supreme Court. In the first one, Champakam Dorairajan (1951), communal reservation in professional colleges was struck down. In the same year, the Bihar Land Reforms Act was held unconstitutional. The amendment was brought in to override the judgements. Nehru said in Parliament: "No Supreme Court and no judiciary can stand in judgement over the sovereign will of Parliament representing the will of the entire community. If we go wrong here and there, it can point it out, but where the future of the community is concerned, no judiciary can come in the way."

The main objection to the constitutional amendment was that it was meant to bypass the judicial decisions. However, the then government had its way, perhaps because the cause was right. Six decades have changed the political scenario. Now the rulers are trying to defend the indefensible, like regularising illegal constructions, redrawing infrastructure maps to make illegitimate gains and clinging on to offices to make undeserving profit. There should be no doubt in any one's mind where justice lies.