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   Judiciary vs Legislature Judgment Reserved

  The Supreme Court (SC) has reserved its verdict on cash-for-query (CFQ) case and the subsequent judgment will essentially define the scope of the judiciary over Legislature or over the Executive.
 

 

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The Supreme Court (SC) has reserved its verdict on cash-for-query (CFQ) case and the subsequent judgment will essentially define the scope of the judiciary over Legislature or over the Executive. The CFQ scandal rose from a sting operation that exposed several legislators taking bribes to ask loaded questions in the Parliament. The serving activist Speaker, invoking archaic laws that over a century old, suspended the legislators in a non-transparent manner and also ordered questionable actions such as barring their signing the attendance ledger and evicting them from their housing.

The legislators then took their case to the SC pleading that their right to a fair trial and process has been violated. The SC sought clarifications from the infuriate Speaker who refused to even acknowledge the show-cause notice. However, the Cabinet and Parliament Secretariat were asked to respond to the SC notice.

The 11 CFQ accused and suspended legislators say that the Parliament had no power or jurisdiction to terminate their membership and that their disqualification must follow a legal process under the laws and not by a resolution seeking their expulsion. The expelled legislators also argue that unlike restrictions posed by Article 19 (freedom of speech and expression), the Members of Parliament (MP) have unique rights under Article 105 that grants them powers and privileges that would be violated by a resolution based expulsion.

The Federal Government refused to even respond to the claims of the petitioners. Their argument was targeted at the Judiciary’s competence to question the decision of an elected Parliament that is supposed to represent the wishes of the people. It argued that the Parliament had the powers to expel members for behavior and conduct that could offend the Legislature and affect its capacity to perform. Further, it argued that the Parliament had the right to regulate its own affairs, including offering punishment to its members, and especially when the “actions of Parliament, except when they are translated into law, cannot be questioned in court.”

While it is true that the Parliament and Legislative bodies are treated as equals in the Constitution, the Government’s argument was disingenuous at best. Firstly, the Indian democratic system assumes that Parliamentarians are voted power based on their manifesto, arguments, and that it represents the best representative of the people. This is fallible assumption because the person who comes to the Parliament oftentimes because of a divided opposition taking advantage of the lack of a run-off system to determine the true representative.

Secondly, the Government claims that these 11 members caught on hidden camera taking petty bribes compromised the effectives of the House. If that is true, a good portion of the Federal Cabinet need to be expelled as there are running criminal cases of embezzlement, rape, murder, extortion, and gangster activities against them. Investigated by federal agencies, these cases are at various stages of being heard. Further, there are some MPs who have wantonly broke the law by escaping from police custody, evading arrest, possession of illegal firearms, forged identification and government documents, etc. Hence, if a policy of expulsion needs to be applied then there needs to be a codified set of rules and conduct that must be applied. In fact, such a set of regulations does exist but is enforced selectively as tools to settle political vendetta.

Thirdly, because there is a lax and selective enforcement of rules and usually against the opposition, there is no due process or incapacity of the House to manage its own affairs in a transparent and equitable manner. Since the House is incapable of managing its own affairs, there is a need for an extraneous body that needs to arbitrate such disputes.

Fourthly, because of the structure of the Indian democracy, the political party in power can always meet out expulsions with impunity to its political opponents. Since the political system are strict on the “whip” mechanism, dissention, disagreements, and morality based voting is impossible either en masse or in a sub-Committee. Therefore, there is a serious need for an outside party to officiate such decisions.

Hence, while it can be argued that the Judiciary and the Legislature needs to be treated equally, there also needs additional mechanisms with the Parliament that is beyond political interference, compulsions, and necessities. Perhaps, the Parliament Secretariat should create a separate cell chaired by former Supreme Court judges who could then hear such cases with an independent viewpoint.