Legislature or Judiciary: No room for supremacy

The political heat and dust over the suspension of YSR Congress Party MLA R K Roja has died down as the Assembly is now not in session. But, the legal wrangle over it continues. The political impulses still remain.

The parameters of judicial review against the decisions/resolutions in the legislative assembly are very limited and unless the court comes to a conclusion that the action of the legislature is not valid, no order can be passed.

This also infers that the legislative proceedings are also not absolutely immune to judicial review. The beauty of the Indian Constitution is the inherent checks and balances to prevent any arbitrary exercise of power by any organ of the democracy

Leaving aside the political cacophony over it, the issue has certainly raised certain pertinent constitutional questions on the sensitive relationship between two important pillars of democracy – legislature and judiciary.

Both the single and the division benches of High Court acted in extreme caution to ensure that the issue does not snowball into a constitutional impasse. Both the orders touch upon some of the significant aspects of this delicate constitutional relationship.

The Constitution of India sanctions separation of powers. The Supreme Court included it to be an aspect of the basic structure of the Indian Constitution. Thus, the Constitution of India accords distinct roles for both the institutions.

Political sagacity is required to understand the maturity of this constitutional provision. Therefore, these orders require a closer reading to understand the question called for.

The Single Judge of High court in his order granting interim relief to the MLA made the following preliminary observation that is vital for understanding the scope of judiciary to intervene in the proceedings of legislature: “…

The motion to suspend the Member of the House beyond the session while invoking Rule 340 of the Rules is, in my opinion, prima facie, a case of substantial Illegality but not a mere irregularity coming within the purview of Article 212 of the Constitution of India.”

This observation infers that the courts cannot intervene in the proceedings of the house on the question of their irregularity as the Constitution of India provides the legislature with that privilege.

But, the court can review if a particular proceeding of the legislature is a case of substantial illegality. To understand it further, let us look at what the Article 212 of the Constitution says:

Courts not to inquire into proceedings of the Legislature
1. The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure

2. No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

The single judge felt that the suspension of the MLA for a period of one year beyond the scope of the cited Rule 340 is a question of illegality while the division bench has set aside the single judge order after coming to an opinion that the rule was wrongly quoted and, therefore, it is only an irregularity.

The court, therefore, cannot intervene. However, the Constitutional position explained above still remains – Illegality versus irregularity.
It is also pertinent here to quote Section (3) of the Article 194 of the Constitution to understand that the legislature decides its procedures from time to time.

The said article reads as follows:
“… powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law…”

Legislative privileges envisaged in Article 194 are sacrosanct and legislature is ultimate authority to enforce its privileges. The valid exercise of the power vested under Article 194 (3) of the Constitution of India cannot be subject to judicial review.

The parameters of judicial review against the decisions/resolutions in the legislative assembly are very limited and unless the court comes to a conclusion that the action of the legislature is not valid, no order can be passed.

This also infers that the legislative proceedings are also not absolutely immune to judicial review. The beauty of the Indian Constitution is the inherent checks and balances to prevent any arbitrary exercise of power by any organ of the democracy.

For breach of the powers, privileges and immunities contemplated under Article 194 (3) of the Constitution, a House of the Legislature can initiate/take action against its members. The powers, privileges and immunities of House under the Article 194 of the Constitution cannot be either curtailed or restricted.

The Minister while moving the motion for the suspension of the member referred to Rule 340. As per this rule, a member can be suspended for a period not exceeding the remainder of the session. R K Roja precisely questioned the legality of her suspension on this ground.

But, PP Rao, the learned Senior Counsel for the appellant, submitted that merely because the Minister for Legislative Affairs committed mistake in quoting Rule 340 of the Rules while moving the resolution, does not mean that one can overlook powers, privileges and immunities of the House as contemplated under Articles 212 and 194 of the Constitution of India.

The single judge declined to accept this plea at the stage of hearing while the division bench accepted it. Thus mere quoting of wrong rule or a provision does not prevent the legislature from acting as per the powers and the privileges it enjoys.

Such a situation is a mere irregularity and the courts cannot therefore interfere, as per the Article 212 of the Constitution. Thus, the courts can interfere in the proceedings of legislature only in regard to a case of grave illegality but not in the case of procedural irregularity.

Thus the concept of separation of powers enshrined in the Constitution should be understood in its proper perspective. Neither the legislature nor the judiciary is supreme. The Constitution alone is supreme.

Both the organs of democracy should act accordingly and enjoy the powers bestowed on them by the Constitution. The wrong reference to the power under which an action is taken by the House would not per se vitiate the action, if it is otherwise justifiable under some other provisions/power which the House could lawfully take.

In H L Mehra case (supra), the Supreme Court observed that it is well-settled that “when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision, if it can be shown to be within its power under any other provision.

If the power is otherwise established, the fact that the source of the power has been incorrectly described in the order would not make it invalid.” The Supreme Court also placed reliance upon, in support of this proposition, its judgment in P Balakotiah v. the Union of India and Afzal Ullah v. State of Uttar Pradesh.

The following observations made by the Supreme Court in Ben Hiraben Manilal (supra) are also relevant: “It is well-settled that the exercise of a power, if there is indeed a power, will be referable to a jurisdiction, when the validity of the exercise of that power is in issue, which confers validity upon it and not to a jurisdiction under which it would be nugatory, though the section was not referred, and a difference or a wrong section of different provisions was mentioned.”

This point has again been reiterated by this Court in the case of Humumchand Mills Ltd. v. State of M.P.[(1964) 52 ITR 583] where it was observed that it is well-settled that a wrong reference to the power under which action was taken by the government would not per se vitiate that action if it could be justified under some other power under which the government could lawfully do that act.

The judgment of the Constitution Bench of the Supreme Court dated 30-09-1964 in Special Reference No.1 of 1964 [15] is also relevant here. The President of India had made a reference under Article 143 (1) of the Constitution in which the whole dispute was pertaining to the constitutional relationship between the High Court and the State Legislature including the questions on the facts of the case from which the reference was made. The relevant observations made by the Supreme Court in this reference judgment, read thus:

“In coming to the conclusion that the content of Art.194 (3) must ultimately be determined by courts and not by the legislatures, we are not unmindful to the grandeur and majesty of the task which has been assigned to the Legislatures under the Constitution.

It is necessary to remember that the status, dignity and importance of these two respective institutions, the Legislature and the Judicature are derived primarily from the status, dignity and importance of these two respective causes that are assigned to their charge by the Constitution.

These two august bodies as well as the Executive which is another important constituent of a democratic State, must function not in antinomy nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres.”