The Telegraph
Since 1st March, 1999
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Chinks seen in court's armour

New Delhi, March 10: A section of legal experts has cautioned that a perception that the judiciary is stepping into the preserve of the legislature could lead to a situation where elected representatives might be tempted to ignore a court order.

'The (Jharkhand) governor and the legislature may do it (comply with the Supreme Court order) sportingly. But it is inviting a situation wherein legislators could say we will not obey the order and embarrass the court. For, an act of a legislator inside the House could not be called into question by the court,' senior counsel Rajiv Dhavan said.

He felt that the court's directive to construe its order as the notification for convening the Assembly is not conducive to the doctrine of separation of powers.

'Under our Constitution, there is a clear-cut separation of powers for various constitutional authorities. It is not for the Supreme Court to substitute its discretion for that of the governor,' Dhavan added.

The statement issued by Speaker Somnath Chatterjee after an all-party meeting also referred to the subject.

'Separation of powers of the different constitutional organs is a basic feature of our Constitution, giving sustenance to parliamentary democracy,' the Speaker's statement said.

Chatterjee conceded that the judiciary is supreme in its own sphere and as such the conduct of the judges is not permitted to be discussed in any legislature. 'But bona fide views can always be expressed on any order or judgment of even the hon'ble Supreme Court,' his statement said.

Dhavan also addressed a question posed by many: what is the alternative if the governor's action is not giving the impression that he is being neutral' 'If the court felt that the governor was wrong, it could have remanded the matter back to him,' the lawyer said.

The opinion was echoed yesterday by former Supreme Court judge Kuldip Singh, who felt that the bench could have requested the governor, instead of issuing a direct order, to hold the trust vote immediately.

Though the issue has implications that put more than the fate of a government at stake, short-term political gains are standing in the way of a consensus in Parliament.

When jurist Fali S. Nariman, nominated to the Rajya Sabha by the National Democratic Alliance, stood up to speak on the issue today, he was challenged by the BJP, which stands to gain the most from the Jharkhand ruling.

Referring to Sushma Swaraj, who cited conflict of interest saying Nariman was a lawyer in the Goa Assembly case, Nariman said: 'I am afraid her government picked a wrong man and nominated a wrong member.'

Much to the BJP's discomfiture, its allies did not take its cue and boycott the all-party meeting in the evening.

The Janata Dal (United) said though the order on Jharkhand should gladden the party, 'in the long-term interest of parliamentary democracy, we would not support the court interference in the matter'.

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