On January 30, at the Kolkata Press Club, the Lok Sabha Speaker, Mr. Somnath Chatterjee, accused the judiciary of taking away, undemocratically and unconstitutionally, the rights of the executive and the legislature. The question it raises is that whether both institutions are clearly overstepping their proper domain. For some years now, the legislature has been on the back foot to redeem its own credibility, and it would be somewhat ironic if the court determined that it did not have the power to do so after all.

The standoff between the Speaker and the court can be considered at different levels. Assuming indeed that parliament is confident of its case and assuming further that it is right to insist on its jurisdiction, was it incumbent upon the Speaker and parliament to react to the court’s notice the way they did in the case of expulsion of members of parliament, which started the confrontation? The whole incidence clearly indicates that the issue at the moment is not simply about upholding the technical validity of parliament’s expulsion of its members. Parliament wants to defend a deeper theory of its jurisdictional autonomy.

The boundary of parliamentary is not decided by the courts, and it is not clear there is a parliamentary prerogative at all, for that prerogative is now mediated through judicial power. The usual way the court defends its encroachment upon legislative prerogative is this. The court is the final authority that decides whether parliament has a right in the first place. But the Speaker’s position seems to be raising a deeper point. By what authority does the court insist that it and it alone, is the final arbiter of what parliament’s rights are? In this instance, an appeal to the Constitution does not help. If both branches are coequal, does not insisting that every legislative prerogative is subject to the court’s jurisdiction in effect make the court supreme over everything.

Indian courts have claimed absolute and exclusive authority to interpret the Constitution. In doing so, the courts have expanded their powers beyond anything that a reasonable reading of the Constitution would warrant. The legislature has ceded power to the court in every instance. Parliament seems to be saying that the very act of admitting a suit is encroaching upon its pow-ers. By admitting any suit, the court is insisting that no issue is immune from judicial scrutiny. But if this is the doctrine then what remains of the legislature’s prerogative over its own matters.

It seems that in relation to the rules of conduct that apply to members of parliament, the legislature must be given more leeway. Indian courts rarely refuse a matter on the ground that it is not within their jurisdiction. This approach has made the doctrine of the separation of powers and the equality of all branches of government. There is no such thing as a transparent Constitution that can settle all disputes about the allocation of power.