The Uttarakhand case and the suspension of Andhra Pradesh MLA R.K. Roja illustrate the possible consequences of mixing up the functions of the legislature and the judiciary.
On April 27, a bench consisting of Justice Dipak Mishra and Justice Shiva Kirti Singh heard the Uttarakhand case. The bench asked a very direct and specific question to the attorney general, who was appearing on behalf of the Centre. As reported by The Hindu, it was as follows: “The million dollar question is when the Assembly Speaker said the Money Bill was passed on March 18, how did you say it was not?”
Simply speaking, the court wanted to find out how the government in Delhi could comment accurately on the proceedings of Uttarakhand’s legislative assembly, which is in Dehradun. This is an important question, and not just in the context of the ongoing dispute regarding the imposition of President’s rule in states where there is a supposed “failure of the Constitutional machinery”. It is important because it will help answer how far courts can go in their inspection of proceedings in houses of legislature.
While the Uttarakhand controversy was brewing, a separate, but not altogether unconnected controversy was reaching its conclusion in a different courtroom of the Supreme Court. R.K. Roja, an erstwhile film actress and a vocal member of legislative assembly (MLA) in Andhra Pradesh was waiting for the court to decide whether her suspension for a year from the Vidhan Sabha was illegal. Roja is a part of the largest opposition party in the Andhra Pradesh legislative assembly – the YSR Congress. On the December 18, 2015 she was suspended from services of the assembly by the speaker, who issued the order under Rule 340 – one of the many rules that seeks to regulate the behaviour of MLAs in the assembly and also the manner in which the Vidhan Sabha carries out its business.
A member of the Telugu Desam Party (the ruling party) had moved the motion for Roja’s suspension for allegedly making derogatory comments against Chief Minister Chandrababu Naidu in the context of what has become known as the “call money sex scam” in the state.
What is of significance here is that Roja was suspended for a year on the basis of a rule that only permits suspension till the end of the assembly’s session. This rule is not specific to the Andhra Pradesh assembly but is followed in most assemblies and even in the parliament. Therefore, how does the assembly defend an action that is clearly beyond what its rules permit – especially when the transcript of the assembly’s proceedings had recorded the invocation of the rule? (Note: this is not unlike the recording by the Uttarakhand assembly’s speaker that the Appropriation Bill had been passed.)
Maybe the assembly has some inherent powers to which it can source such an action. Maybe that power allows for the suspension of a member beyond the period specified by its rules.
The separation of powers
This is exactly what happened in court – the legislative assembly took the stand that the usage of Rule 340 was a mistake, and what was actually meant to be done was to suspend Roja on the basis of the assembly’s privilege to punish for its own contempt. Privileges, in the context of a legislative assembly, are a set of special powers and entitlements vested with the house (and its members) to facilitate its proper and uninterrupted functioning. The power to punish someone for contempt of the house, is in some cases, similar to the power of a court to punish a person for its contempt. It is used by the by the institution to protect itself. This protection is not simply to ensure the dignity of its membership; more importantly, it is to ensure that the institution is respected by us, the people who give it its power. Lord Morris stated this much more clearly in Attorney General v. Times Newspapers Ltd.,  A.C. 273 when he spoke about the reason behind powers to punish for contempt:
“…it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted.”
What Lord Morris said about courts applies quite neatly to legislatures as well. Our Constitution has established a system where the judiciary and the legislatures are supreme in their respective dominions. Interference of one in the others’ functioning is not a matter of course and is definitely not to be resorted to unless absolutely necessary. The doctrine of separation of powers that is so often cited contemplates a separation that is also a lot more literal than emblematic. The Constitution prohibits the discussion of the conduct of a judge in parliament, and it also prohibits the court to peer into the workings of parliament unless they result in what is described as a “substantial illegality”. This matters, because upholding the dignity of each of these institutions also means keeping them as independent of each other as possible. And it doesn’t mean that courts cannot or should not hold laws made by our legislative assemblies as bad or unconstitutional. It only means that the manner in which these assemblies function cannot be under the scrutiny of our courts, at least not without very good reason.
So the question that the court asked the attorney general in the context of Uttarakhand is not dissimilar to the question that might be asked in Roja’s case: how do you know what actually happened in the assembly that day? And why should the court believe your account of it, rather than the assembly’s record?
As it stands, and rightly so, the proceedings of a house are its own property, with the speaker being the only one authorised to amend them. By asking the court to look behind the plain meaning of the words as they appear in the house’s proceedings, either in Uttarakhand or Andhra Pradesh, the court is actually being asked to re-interpret these records.
Parliamentary procedure and the imposition of president’s rule are areas of law that have been heavily commented upon by the Supreme Court. But this commentary does not tell us conclusively whether courts can actually look beyond the plain meaning of what appears in the record of the proceedings of the House. It does not tell us whether the court can substitute its own understanding of what happened in parliament when the parliament’s records state otherwise. The tone of the judicial pronouncements, however, does indicate that the courts would much rather stay away from such an exercise, and they are right to do so.
The Uttarakhand crisis definitely does not bode well for democracy and Roja’s suspension order is still hanging over her head. But hopefully, the Supreme Court being occupied with both these matters, will rise to the occasion and give us a definitive answer to the scope of its powers relative to the legislature. Hopefully this answer will be decisive enough to quell, at least momentarily, the onslaught of innovative but short-sighted legal strategy on institutions that are meant to endure.
Rohan P. Kothari is a lawyer who works at the Supreme Court of India.