Territorial imperative

In all countries that practise a separation of powers, there is, from time to time, friction between the legislatures and the courts. This usually happens when one steps on the corns of the other.

"None of your business" says the aggrieved party, usually because its amour propre has been hurt. The presumed encroacher replies, and after a while things go back to normal. This seems to be one of those times in India.

Thus, as a result of the Supreme Court advancing the trial of strength in the Jharkhand Assembly by four days and ordering a videography of the proceedings, there was the customary furore in Parliament.

The Speaker of the Lok Sabha, Somnath Chatterjee, called a meeting of all political parties (from which the BJP staged a walk-out). Mr Chatterjee said the court's order had created a "disturbing situation" and suggested that the government make a Presidential reference to seek the court's opinion.

Article 143 of the Constitution allows such references to be made when "a question of law or fact has arisen". The purpose, he said, was to restore the Constitutional balance.

"We cannot discuss the conduct of honourable judges in Parliament. The judiciary is supreme in its own sphere. The Constitution has also provided for the supremacy of the legislature," he said.

He also said that whether the chief secretary or the director general of police could assure attendance of MLAs were issues that were strictly within the jurisdiction of the legislatures.

He then pointed to Articles 122 and 212 of the Constitution, as these denote the supremacy of the legislature within its own sphere. "With all respect to the Supreme Court, we wish to point out that in this case we have grave doubts and we feel greatly disturbed about the nature of the order the Supreme Court has passed," he said.

From the perspective of first principles Mr Chatterjee has a legitimate grievance. Ordinarily, the two organs should (and do) respect each other's territories.

But it is also increasingly obvious that the judiciary is stepping with growing frequency onto turf that is not its own.

In ordering specific executive actions that have nothing to do with the interpretation of the law, and compounding matters by doing nothing when some of those orders are not implemented (indeed some may even be unimplementable), the courts are risking challenge and confrontation.

They would be well advised to take a step back before that happens. What if the Jharkhand legislature had indeed not met on the date that the court ordered, what would the court then have done?

Fortunately, the government in New Delhi chose to avoid the path of confrontation and made amends for the governor's original sin by asking Shibu Soren to resign, since he clearly did not enjoy the confidence of the state legislature.

But the underlying issue remains and a Presidential reference should indeed be made. Governors and politicians need to learn a lesson or two from the Jharkhand episode, but so do the courts.

As for the Jharkhand governor, he should be dismissed for grave impropriety.