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Separation of power – Judiciary vs Assembly

Separation of power – Judiciary vs Assembly

UPSC CSE Mains Syllabus: GS-2-  Separation of powers between various organs dispute redressal mechanisms and institutions.

Former Rajasthan Deputy Chief Minister’s rebellion against Rajasthan Chief Minister, has landed in the Rajasthan High Court and the Supreme Court of India.

This was seen as contradictory to the principle of separation of power. There is Constitutional history behind judicial reticence, which is normally expected, in matters involving the working of Parliament and legislatures. This history bears some retelling.

British constitution:

  • Charles Bradlaughwas elected to England’s Parliament in 1880.
  • He was an atheist and refused to take oath as a Member of Parliament in the name of god.
  • The format of the parliamentary oath, only provided for swearing in in god’s name.
  • The Serjeant of Parliament, refused to seat Bradlaugh in Parliament without the oath in that form.
  • Bradlaugh appealed to the courts.
  • The courts said they could do nothing.
  • In Bradlaugh vs Gossett (1884), a court held the ‘decision of the House of Commonsin resolving not to allow an elected Member, Bradlaugh, to take the oath, and the actions of the Serjeant at Arms in preventing Bradlaugh from entering the House, were subject to the sole jurisdiction of the House’.

India’s case:

  • In India, one Keshav Singhwas sentenced to a week’s imprisonment in 1964 for breach of privilege of the Uttar Pradesh Legislative Assembly.
  • Subsequently, a petition filed by him was listed before the Lucknow Bench of the Allahabad High Court.
  • The petition was admitted, and as the sentence was only one week, Singh was directed to be released on bailduring the pendency of the case.
  • The Assembly took offenceto this.
  • The order of stay passed by the Bench of two judges was regarded as a breach of their privilege of the Legislative assembly.
  • Soon thereafter, the assembly made an order directing the Marshal of the Assemblyto arrest the two judges and produce them before the Bar of the House.
  • These judges approached the full Bench of the Allahabad High Court, which protectedthem from arrest.
  • According to Shanti Bhushan’s recollections, Justice Nasirullah Beg, who had been ordered to be arrested and confined by the marshals of the U.P. Legislative Assembly, was waiting with a loaded gun, ready to shoot down the marshals and protect the honour of the Allahabad High Court.
  • Supreme Court defining Separation of powers:
  • At this stage, the President of India made a presidential reference to the Supreme Court on the relative powers of legislative assemblies and constitutional courts.
  • The Supreme Court held that there is a broad separation of essential powers of each organ of the State.
  • However, the Court went on to hold that a judgewho entertains a petition challenging any order of the legislature imposing any penalty on the petitioner for its contempt “…does not commit contempt of the said legislature and the legislature is not competent to initiate proceedings against that judge”.

Non-interference as the norm:

  • Ever since, judiciary has maintained non-interference in the workings of legislative assemblies or Parliament is concerned.
  • The sole exception is under the anti-defection law — after a final order of disqualification has been passed.

Anti-defection – Judiciary maintaining a principled distance :

  • A Constitution bench of the Supreme Court in Kihoto Hollohan’s case in 1992 held that the Speaker acting in a disqualification matter acts as a tribunaland is subject to judicial review.
  • However, the same judgment makes it clear that the Court will not intervene at an interim stage.
  • The majority very clearly held: “Having regard to the constitutional scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen; and no quia timet actions are permissible.
  • The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.
  • They are expected to and do take far reaching decisionsin a Parliamentary democracy.”
  • Usually, even in routine petitions against notices of administrative actions, courts are reluctantto review at an interim stage.
  • Almost invariably, the petitioner is told to answer the show cause noticeand to challenge the final action only.

Change of norm – Rajasthan scenario:

  • The Rajasthan High Court however entertained a petition on behalf of 19 MLAs.
  • A mere issuance of a possible disqualification noticeby the Speaker has been contested in constitutional courts, which have not rejected the challenge at the threshold.
  • The Speaker chose to appear before the High Court and argued the merits of the matter.
  • The Rajasthan High Court reserved its judgment, requested the Speaker to defer further proceedings and proceeded to direct him to await judgment.

Constitutional bodies – coequal:

  • The High Court’s direction to the Speaker, led to him moving the Supreme Court, questioning the court’s power to direct a Constitutional authority.
  • The principle of law being urged is that Constitutional authorities cannot issue directions to each other as they are co-equal.

Separation of powers:

  • Constitutional courtshave followed the same principle, in addressing other Constitutional authorities.
  • The Speaker of a House of legislature or Parliament,represents that august body and is the guardian of its privileges.
  • The House cannot be ordered around in its internal working, by any court, no matter how high or supremely infallible it perceives itself to be.
  • Unnecessary conflictbetween organs of state may well invite some Speaker, backed by a solid majority at State and Centre, to defy the courts, when it comes to the internal working of the House of Parliament or legislature.

Politics affecting the separation:

  • Courts are apolitical but keep getting pulled into political thickets, especially in matters of mass defections resulting in regime change.
  • They must therefore be very chary of being turned into a third house of Parliament or legislature.
  • The walls of separation between constitutional organs, once breached, cannot be then repaired against future intrusions.
  • Even under a sovereign Constitution, parliamentary and legislative supremacy in their spheres of functioning should be respected.

Source:”The Hindu”.


The walls of separation between constitutional organs, once breached, cannot be then repaired. Analyse the statement in light of the recent judicial interference on legislative assemblies.