The conundrum of parliamentary proceedings and judicial review

Parliamentary Democracy

On July 26, 2023, Congress MP Gaurav Gogoi moved a no-confidence motion in the Lok Sabha over Manipur violence. The Lok Sabha speaker, Om Birla, accepted the no-confidence motion moved against the National Democratic Alliance’s government.

Although the Lok Sabha speaker admitted the motion on the same day, he did not right away set aside a specific date(s) for the no-confidence motion to be taken up as on such and such a day or days or part of a day. Instead, the Speaker informed the house that the time and date would be intimated at a later date.

As per the procedure specified in Chapter XVII and Rule 198(2) of The Lok Sabha Rules of Procedure, if the Speaker is of the opinion that the motion is in order, he must read the motion to the house and request the members who are in favour to rise in their places. If at least fifty members of the house rise from their seats, the Speaker would declare that leave is granted and, announce a date on which the motion would be taken up. If less than fifty members rise, the Speaker would decline the request made for motion.

The Lok Sabha Rules of Procedure (Rule 198) also stipulates a limitation of time with respect to the date. The date of motion must be within ten days from the date on which the leave has been moved. While the speaker did not immediately announce the date, the government paid no heed to the opposition’s no-confidence and had passed at least five bills after the acceptance of the motion. The opposition demanded a quick start over the debate on the motion and objected to the manner in which the bills have been passed taking no notice of the no-confidence move.

According to an independent thinktank, Rights & Risk Analysis Group’s report, the ethnic riots between the Meiteis and Kukis in Manipur resulted in the killing of at least 120 persons. So far, around 70,000 people have been displaced from the northeastern state. Out of which, over fifty thousand persons sought refuge in relief camps, over twelve thousand had fled to Mizoram, and as many as three thousand fled to Assam.

A no-confidence motion is an apparatus through which the Council of Ministers can be held collectively responsible for the failure of the government in distressing situations such as the Manipur violence. Article 75(3) of the Indian Constitution grants this right. It states “The Council of Ministers shall be collectively responsible to the House of the People.’

On the appointed date(s) of the no-confidence motion, the Speaker must put forth every question necessary to determine the decision of the house on the subject matter of the motion (Rule 198(4)). Moving a no-confidence motion is a powerful mechanism through which the opposition and the dissenting members of the House can remind the ruling government of its accountability to the citizens of this country. The opposition, at best, can even overthrow the current government through a no-confidence motion by calling for the resignation of the council of ministers.

On one hand, Article 75(3) of the Indian Constitution empowers to call for public accountability of the government, and on the other, Articles 122 and 212 restrict Courts from enquiring into proceedings of Parliament. Both Articles 122 and 212 clearly express that the validity of any proceedings in Parliament and Legislature shall not be called into question on the grounds of any alleged irregularity of procedure.  Also, no officer or member of Parliament or Legislature in whom powers are vested for regulating procedure or the conduct of business, or for maintaining order, in Parliament or Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. Hence, granting immunity to the members, council of ministers, and the Speaker from judicial intervention as well as criminal prosecution.

The age-old doctrine of separation of powers, also termed trias politica, was first developed in ancient Greece. Later, the Roman Republic followed the same concept. This model of tripartite system took birth from centuries of political and philosophical development dividing a kingdom or state into branches or estates and granting them independent powers and responsibilities has been adapted into the Indian Constitution. Technically understood as the system of checks and balances, this model confers certain exclusive powers on each branch and, at the same time, restricts their freedom to intervene in each other’s exercise of duties and responsibilities.

By virtue of the doctrine of separation of powers, the judiciary has been barred from enquiring into matters or questions falling within the special jurisdiction of the Legislature. For instance, in Ramdas Athawale v. Union of India, the question about the adjourned sine die of the winter session of the House of People and the reconvening of the same session after a period of about a month was challenged before the Supreme Court on the ground that it is an irregularity of procedure. The apex Court held that the adjournment of a House of Parliament is a matter relating to the proceedings of the House, and therefore, the reasons for or duration of adjournment cannot be questioned in Courts.

Similarly, in Bachan Singh v. State of Punjab, the landmark judgment that established the Rarest of the Rare doctrine, the five-judge bench headed by the then Chief Justice Y.V. Chandrachud held, “we must leave unto legislature, the things that are legislature’s. The Court further observed that the highest judicial duty is to recognize the limits on judicial power and to permit the democratic process to deal with matters falling outside of those limits.

French political philosopher, Baron De Montesquieu, as he described the doctrine of separation of powers in his writings, had emphasized more on the independence of the judiciary. Montesquieu opined that the judiciary stands as the most important of the three powers (Legislature, Executive, and Judiciary) evaluating the constitutional validity of the decisions taken by governments. In case of legislative action or provisions of the statutes passed by a legislative action happens to be violative of any of the articles of the Constitution, the Court has the power to strike them down.

The underlying reasons for the emergence and expansion of the concept of judicial review can be understood only by analyzing the various judgments delivered by the Supreme Court and the political context of the country at the time. By plain reading, Articles 122 and 212 appear as prescribing an expressed bar forbidding courts from questioning the parliamentary or legislative proceedings. However, it must not be misunderstood as an ‘absolute bar’ but must be noted as a bar limited to irregularity of procedure only. Parallel to Articles 122 and 212, the House also has been restricted in Article 211 from discussing the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties.

In Special Reference No. 1 of 1964, the seven-judge bench of the Supreme Court delved into the parliamentary proceedings and judicial intervention conundrum. The Court observed that Article 212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. The Court held that Article 212 (1) makes it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from a mere irregularity of procedure, but from an illegality.

The Court further held, “If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law.” In a recent judgment in Subhash Desai v. Principal Secretary, the Court observed that to avert a no-confidence motion, the incumbent Government may not advise the Governor to convene a session of the Assembly, and the Speaker may adjourn the sitting of the House to prevent voting for granting leave to move a motion of no-confidence. If the Speaker and the Government attempt to circumvent a no-confidence motion, the Governor would be justified in exercising the power under Article 174 to call for the sitting of the House without the aid and advice of the Council of Ministers. It further held that in the present case, the Governor was not justified in calling upon Mr. Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him, to reach the conclusion that Mr. Thackeray had lost the confidence of the House.

Drawing light on the distinction between irregular procedure and illegal procedure, the Court observed that it must be based on the nature of the procedure which was violated, and the impact of such violation on democratic ideals. An infringement of a procedure would be irregular if the purpose of such procedure is unrelated to democratic ideals and its violation does not go to the root of democratic processes. The Court further emphasized that the distinction is not based on whether the procedure is entrenched in the Constitution but on whether it is crucial for the sustenance of democracy.

Hence, the passing of laws without addressing the core issue of trust in the Council of Ministers when a no-confidence motion has been moved, appears to be undemocratic. This action by the union government bizarrely is a square peg in a round hole failing to uphold democratic principles as well as collective responsibility and public accountability inscribed by the Constitutional makers after much thought, discourse, and deliberations to safeguard the spirit of the Constitution.

Tejaswi Ravinder Battala is an Associate with Versus Law Associates. She holds a Master of Law Degree in Constitutional Law from Osmania University, Hyderabad.


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