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Call for Presidential reference to Supreme Court on separation of powers

Friday 11 March 2005, by VYAS*Neena

NEW DELHI, MARCH 10. There was near-consensus today among the leaders of political parties, barring the Bharatiya Janata Party, that the Government should make a Presidential Reference to the Supreme Court under Article 143 of the Constitution to seek its opinion on the issue of separation of the powers of the judiciary and the legislature while maintaining the "fine Constitutional balance" for the democratic functioning of the State.

The immediate provocation was the Supreme Court order in the Jharkhand case as most political parties felt that the Court had "transgressed" its jurisdiction and "encroached" on that of the legislature by directing the legislature to take a trust vote on a particular date, record the proceedings and report back to the Court.

The suggestion that the Government should seek a presidential reference on the important Constitutional issue was reportedly made by the Rajya Sabha MP and jurist, Fali Nariman, at a meeting of the party leaders called by the Speaker, Somnath Chatterjee, here this evening. This was endorsed by a majority of the party leaders and later, a statement suggesting that this should be done was issued by the Speaker.

Barring the Bharatiya Janata Party — its leaders walked out of the meeting called by the Speaker — all parties, including those of the National Democratic Alliance, went along with the decision that the Speaker should make a statement on the crucial issue related to Constitutional jurisdiction.

As the leaders left the meeting at the Parliament House library, several members said that the parties had endorsed the decision that the Speaker is the custodian of the House and would make a statement.

Mr. Chatterjee said: "In view of the order of the Honourable Supreme Court in the Jharkhand case, I felt that certain matters are to be considered by the legislatures because of several clear provisions in the Constitution relating to the relation between the legislature and the judiciary ... I will soon make a statement on the issue ... "

BJP walks out

Earlier, mid-way through the meeting all three BJP leaders who attended the meeting — the Leader of the Opposition in the Rajya Sabha, Jaswant Singh, the Deputy Leader in the Upper House, Sushma Swaraj, and the Deputy Leader of the BJP in the Lok Sabha, V.K. Malhotra — walked out. They said they did not want to be party to any statement, motion or resolution on the issue inside or outside the House.

None of the leaders of the allied parties of the National Democratic Alliance left before the meeting ended. Those who attended the meeting from the NDA included Prabhunath Singh (Janata Dal-United), Yerran Naidu (Telugu Desam Party) and B.K. Tripathi (Biju Janata Dal). One member who attended the meeting said: "Only the BJP members walked out ... none of their NDA partners left ... that tells you whether the allies are with the BJP or not with the BJP on this."

Although Mr. Jaswant Singh said that he had been informed about the meeting a mere 10 minutes earlier, the Speaker told the press that this morning it was Mr. Malhotra who had suggested that a meeting of party leaders be called to discuss the issue. "And I called a meeting," Mr. Chatterjee said. Apparently, by afternoon it was decided to include members of the Rajya Sabha.

`Partisan role’

Briefing the press, Mr. Singh said that a ruling party should not take umbrage when a court order goes against it. "Anyone who sits in the chair has to learn to swallow the bitter pills." He said that the Jharkhand Governor had played "a partisan role" by giving the Soren Government too much time to take a trust vote. When asked whether the outer limit of such time was 13 days, which was given to the Vajpayee Government in 1996, he said: "There is no outer limit." Was the BJP in favour of fixing the outer limit by law? His response was that there could not be a law for everything.

"My appeal to the Speaker on an important issue like this is, please do not divide the House." The BJP wished to "preserve the viability of the legislature, the functioning of the executive and the judiciary," he said. Mr. Singh was also asked whether he thought the 1996 Vajpayee Government and the 2000 Nitish Kumar Government in Bihar had done wrong by filling the nominated members vacancies reserved for Anglo-Indians. "That was done under the law, the numbers at that time were not crucial to deciding who would win or lose the trust vote."

When asked whether the BJP felt the courts had overstepped their limit by ordering video-recording of the trust vote in Jharkhand and asking the State Speaker to report the decision, Mr. Singh said he would not like to comment on a court order.

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