LAW RESOURCE INDIA

The legislature’s limits

Posted in CONSTITUTION, DEMOCRACY, ELECTION LAW, FUNDAMENTAL RIGHTS, LEGISLATURE, UNCATEGORIZED by NNLRJ INDIA on April 29, 2010

BY MANEESH CHIBBER IN THE INDIAN EXPRESS

While deciding on former Punjab Chief Minister Captain Amarinder Singh’s appeal challenging his expulsion from the Punjab assembly for “breach of privilege”, the Constitution Bench of the Supreme Court has once again demarcated the spheres of influence of different branches of the state, particularly the legislature.

In this case, the legislature had initiated an inquiry by a House panel against Amarinder for an act that he allegedly committed when he was the chief minister in the previous House. Once the probe panel, comprising mainly members of the ruling alliance — Shiromani Akali Dal-BJP — had pronounced on allegations that he granted illegal exemption to certain developers causing a loss of over several crores to the exchequer, the House took the unprecedented step of expelling him on September 3, 2008 for the remaining term of the House, which at that time was over three-and-a-half years. It also asked the Election Commission to initiate steps to hold fresh elections to the constituency that Amarinder represented in the assembly. Amarinder and his supporters in the Congress cried vendetta, accusing the government of having masterminded the entire operation to oust him from the House on flimsy grounds.

While the Punjab and Haryana high court didn’t deem it proper to interfere in the decision of the House, the Supreme Court felt otherwise, holding the expulsion illegal. It also expressed disapproval of the assembly’s action, saying it would set a bad precedent for every new government or assembly to dredge up alleged criminal actions of the previous incumbent and resort to expulsions.

But apart from the fact that the judgment upholds Amarinder’s contention against being denied his right to represent the Patiala constituency in the assembly despite being elected, its importance also lies in the fact that it fixes once and for all, one hopes, the boundaries within which the legislature can and should function.

It would also go a long way in curbing the tendency of political parties, especially those ruling the state, to resort to such steps to get rid of their opponents.As Amarinder’s lawyer Atul Nanda told the court, this was the first time in India that an MLA had been expelled in such circumstances, “not for alleged breach of privilege or contempt of the House but for alleged acts of criminality ‘found’ by a committee of the state legislature.”Could the legislature take upon itself the function assigned under the Constitution to the government/ executive, which is to inquire into an action not connected to the House or with the functioning of the House? Also, could the House have then exercised its punitive powers to punish a member on such a count? Simply put, what the Punjab legislature did was to assume the power and jurisdiction to find a man guilty under law, pre-judge his case and direct the investigative machinery of the government to recover “the ill-gotten wealth”.

As the Supreme Court judgment shows, the House acted beyond the purview of Article 194, which deals with the powers, privileges and immunities relating to the assembly and House committees constituted by it. The punitive power of the assembly is limited to punishment for contempt or for breach of privilege in the capacity of a member. The action of the assembly was also in violation of Articles 190 and 191 of the Constitution, which deal with the specific circumstances in which the seat of an MLA can be declared vacant.

The Constitution Bench judgment would go a long way in ensuring that no ruling party, acting on the premise of the brute majority enjoyed by it in the legislature, would try to expel members of the opposition through such means and declare their constituencies vacant. If such a thing was allowed, the legislatures could well be reduced to tools in the hands of the vengeful governments of the day. After all, but for this landmark judgment, the UPA government, instead of politically fighting the opposition within and outside Parliament, may take the easy way out: appoint a probe panel to go into alleged irregularities committed by important opposition MPs and use its majority to oust them from the House on the basis of indictment by the committee. Or the Karunanidhi government in Tamil Nadu, if it feels threatened by J. Jayalalithaa, could decide to get the House to pass a resolution to oust her from the assembly for “illegally” owning more sarees and shoes than her income allowed.

maneesh.chibber@expressindia.com

http://www.indianexpress.com/news/the-legislatures-limits/612702/0

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