`Supreme Court cannot make laws'

Interview with Somnath Chatterjee, Speaker of the Lok Sabha.

"THE disconnect between what you preach and what you practise is one of the greatest maladies of our times. It seems to have seeped into all our institutions and systems. And in the process, we tend to be irresponsible even towards the basic tenets and priorities of our nation," said Lok Sabha Speaker Somnath Chatterjee as he began his interview with Frontline on the issues thrown up by the Supreme Court judgments in the cash-for-query case and on the Ninth Schedule.

Somnath Chatterjee did not point fingers at anybody specifically, but as the interview progressed it was evident that the very context of the interview had made him think aloud. Excerpts:

Two recent Supreme Court judgments - on the cash-for-query case and on the Ninth Schedule - have once again brought the powers and roles of the legislature and the judiciary into focus. In the case of the former, the court upheld the Lok Sabha's decision to expel Members of Parliament who were caught on camera taking bribes, but clearly rejected the contention that it cannot review Parliament's power to expel MPs. The judgment on the Ninth Schedule has seemingly curtailed Parliament's power to keep certain progressive laws outside judicial challenge. How do you perceive these judgments?

The judgments have to be analysed from a broader and larger perspective. I have said that the judgment in the cash-for-query case is a milestone judgment. It has put to rest the doubts that had been raised about the jurisdiction of Parliament to deal with its own members. When I said that Parliament has the right to punish its members who have behaved in a manner inconsistent with the functions, duties and propriety of Members of Parliament, its correctness was questioned in some quarters. The judgment makes it clear that those questions have no relevance.

Having said that, 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. The Court has said that if the proceedings of the legislature are tainted with substantive or gross illegality, or are unconstitutional or are mala fide or have denied natural justice to a person, their proceedings will not be protected. I am sure that such mala fide action or illegality would not dominate given the powers as well as the diversity that members of legislatures have in various Houses, including Parliament.

But an observation like this is open to interpretation. The perceptions about illegality or mala fide or denial of justice could be interpreted differently ...

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.

In the overall context, do you think that the judgments would strengthen the democratic process in the country? Are the differing perceptions of the judiciary and the legislature on various issues to be seen as a sign of robust democracy and part of checks and balances?

I think the cash-for-query judgment has strengthened the democratic process to the extent that it has cleared the doubts about the legislatures' powers to deal with their own issues. When I raised the question of Jharkhand early last year, it was essentially about the Supreme Court's intervention in a matter that is the sole discretion of the legislature. The cash-for-query case judgment has, in many ways, corroborated the position I held.

What about the judgment on the Ninth Schedule?

I have only one comment to make on that. Why was the Ninth Schedule brought in the first place? Unfortunately, I have not been able to find out any discussion on this basic question. So, let us come back to that question. See, the land reform laws were being declared ultra vires of the Constitution. Land reforms were a commitment that the leaders of our national movement gave to the country and its people. If there were interpretations that came in the way of fulfilling this commitment towards the people, these had to be overcome. That is the context in which the Ninth Schedule was brought in. Later privy purse was abolished, banks were nationalised.

All these came into the Ninth Schedule. 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.

The argument is that the Ninth Schedule is getting increasingly misused on account of political considerations.

You should understand what the meaning of politics is. 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.

The parameters of the Supreme Court's position on the Ninth Schedule are apparently dictated by the 1973 Kesavananda Bharati case. Are you happy with the basic structure doctrine as evolved and interpreted by the Supreme Court since?

The question as to what is the basic structure is crucial in this debate. See, Parliament amended the right to hold property. But there are people who believe that this right is an inalienable right of the people. But it has to sub-serve to public good. Now, who will decide this question? I am of the view that judges, with all their good intentions, should not, and have no constitutional authority, to decide this question. The basic structure has to have a constitutional direction. That also includes separation of powers. Now, you say that separation of powers is a basic structure and go on diluting it.

Is the tension between the legislature and the judiciary irreconcilable? Will it have a longstanding negative impact on our democratic system?

If I am not mistaken, we tend to read too much into a situation. Our system is basically directed and dictated by the people. Those who talk in alarmist terms, who try to accuse mala fide on the legislature, should understand that out of the 14 general elections held in this country, six times we have had change of government. So, let us all understand that ultimately the people can strike a decisive blow. Which also means, we should address the larger concerns of the people without falling for elitist perspectives.

There is a stream of thought that the failures of the executive and the legislature have propelled the judiciary into a proactive mode.

There could be any number of failures in the various instruments of the Constitution. Do the poor and underprivileged in our society have comprehensive, free and necessary access to these institutions? Can the poor really afford to fight for their rights in the present structure of the judiciary? All these questions may produce unsatisfactory answers of varying degrees. But all that does not mean that we can forsake the basic direction of our Constitution and the separation of powers it has entailed. If any stream of thought suggests that this constitutional direction can be forsaken, it is undoubtedly wrong and has to be challenged and defeated.