Members of Parliament (MP) and legislators are seen to be exceedingly powerful these days, measured by the number of laws they can break with impunity. But in reality, they are unknowingly on the back foot, with the Supreme Court, the Election Commission and even the executive eroding their privileged position. Last week, the Central Bureau of Investigation which some Supreme Court judges recently dubbed as a "caged parrot", uttered naughty words in the courtroom such as "autonomy" which it might have picked up from the civil society marketplace.
Politicians suffered a series of setbacks from the Supreme Court last fortnight. The court asked the Election Commission to frame guidelines for election manifestos as part of its model code of conduct for political parties. It noted that manifestos promising freebies such as television sets and bags of rice undoubtedly influenced voters though they are not "corrupt practices" under the Representation of the People Act. This, and other directions in the judgment, S Subramaniam vs Government of Tamil Nadu, has roiled politicians.
Another judgment that singed them and provoked a call for change in the existing law is the one which says that people convicted of crime cannot contest elections (CEC vs Jan Chaukidar). There have been more knee-jerk reactions on the scrapping of caste-based reservation in the super-specialty faculties of medical and engineering colleges and cancellation of common entrance test for medical colleges. Meanwhile, the Bill to amend the Right to Information Act to exclude major political parties from the definition of "public authority" is in the Parliament. This is to surmount a ruling in June by the Central Information Commission which had held that they are public authorities who should answer queries from the public.
When the government loses a case, the normal practice is to file a review petition. This is not quite reliable since the same bench decides the review petition in chambers, without an open hearing. The scope of a review petition is only to correct "errors apparent on the face of the record". Review petitions can at best stall the impact of a judgment for some time and enrich lawyers.
Therefore, the government thinks that an amendment to law is a more expedient course. But this could land the government before the judges once again and provoke another public debate on conflict with courts. There are plenty of public interest petitioners cynically waiting in the wings these days. An exasperated Congress MP wailed in the House last week: "I want to know whether the future of the country will be decided by five people or by Parliament, which represents the people."
The populist method of amending laws to overcome judicial impediments was tried in the Vodafone tax case, only to find that a ministerial committee could stall the budgetary law. It is even more difficult to change goalposts when it plays with the judiciary.
The law laid down by courts in such cases do not help the government. There is a series of judgments that bar changes in law to outwit courts. One such judgment was delivered in 1978 in Madan Mohan Pathak vs Union of India. The Calcutta High Court directed the Life Insurance Corporation of India (LIC) to pay cash bonus to its lower staff in terms of a labour agreement. To protect the LIC, the central government passed a law. A seven-judge bench of the Supreme Court quashed it, observing that legislation could not usurp the role of judiciary and citizens' rights could not be taken away in an indirect fashion.
The Supreme Court has sustained this view in more recent times. A few years go in PUCL vs Union of India the court declared that a voter has a right to know the antecedents of the candidates. The political class squirmed and rose against the ruling. An ordinance was passed with extreme urgency, and a law was passed with rare unanimity, seen only when MPs give unto themselves a salary increase. This law was struck down by the court. So now we know that 1,460 lawmakers, including 150 parliamentarians, have a criminal background and 306 crorepati MPs want us to live on Rs 32 a day. The government faced a similar situation in the controversial "single directive" case (Vineet Narain vs Union of India), which required prior permission of the government to start investigation against top bureaucrats.
When the Karnataka government tried to neutralise the impact of the judgment in the Cauvery Water Disputes Tribunal case in 1993, the Supreme Court set aside the law, observing: "It would be unfair to adopt a legislative procedure to undo a settlement which had become the basis of a decision of the court... the object of the Act was in effect to take away the force of the judgement. Such an act on the part of the legislature amounts to exercising judicial power of the state and to functioning as an appellate court or tribunal." In another case of outwitting the judiciary (P Sambamurthy vs State of AP), the court said that if the power of judicial review can be set at naught by the state government by overriding the decisions given against it, "it would sound the death knell of the rule of law."