In the past two weeks, Delhi High Court has passed two successive orders which, if not challenged by the legislature, could make it deeply discomfited. In the past two weeks, Delhi High Court has passed two successive orders which, if not challenged by the legislature, could make it deeply discomfited.

Ever since the late Justice P.N. Bhagwati entertained the first Public Interest Litigation case in the Supreme Court in 1979, and the higher courts began to extend their powers of judicial review to oversee the executive actions of the central and state governments, there has been a simmering conflict between the legislature and the judiciary. In the past two weeks, Delhi High Court has passed two successive orders which, if not challenged by the legislature, could make it deeply discomfited.

The threat has arisen out of a seemingly trivial issue that should never even have come before a court of law. The torrential rains in Delhi in July had caused drains to overflow and spread filth and disease over large parts of the city. The outbreak of gastro-intestinal diseases and dengue fever that followed led to the filing of a petition to the Delhi government to examine the causes and remedy them.

This matter was taken up by the petitions committee of the state assembly which asked for a full report from the executive on the state of the drains in the city. In the report, the principal PWD secretary gave lists of drains that had been fully desilted and repaired, and those which were in various stages of repair.

On receiving it, the committee took the unusual step of examining the completed drains. It found that not a single one had been repaired, but that the funds earmarked for the work had already been disbursed. Consequently, it reported the case as one of a misrepresentation of facts to the privileges committee of the legislature, which then summoned the principal PWD secretary, Ashwani Kumar, to appear before it on July 31.

Kumar did so and asked for time. But on the same day he moved Delhi High Court for a stay order to bar the privileges committee from calling him before it. It is at this point that the invasion of parliamentary prerogative began. Not only was the plea heard within hours by the acting chief justice of the high court, Gita Mittal, but she immediately issued the stay order in Kumar’s favour on the grounds that there was a PIL on the subject, filed 12 years ago in 2005, already before the court. This constituted an “overlap of jurisdiction” in which, since the matter had been raised in the high court first, under Rule 201 of NCT of Delhi Rules it was the high court that had to deal with the matter.

Less than a week later, Justice Mittal came to the Delhi High Court, summoned court officials and issued a similar stay order in favour of the chief secretary of Delhi, M.M. Kutty. One of Kutty’s early actions after being appointed by the central government on November 29 last year had been to withhold all payments for advertisements placed by the Delhi administration. He did so as per a directive issued the new lieutenant governor, Anil Baijal, in March to recover Rs 97 crore paid for these advertisements from the Aam Aadmi Party. This action, allegedly taken by the Modi government as a part of its crusade against corruption, would have been more credible had it not spent itself Rs 1,190.53 crore, Rs 200 crore more than in the previous year, on advertising welfare schemes in 2015-16 that are every bit as hard to find as Delhi’s de-silted drains.

One can sympathise with Kutty’s anxiety to avoid being targeted by AAP MLAs for his earlier action. Justice Mittal’s dilemma was also a real one. But her decisions have created a piquant situation on two counts.

First, the high court has made its own inability to dispose of a simple PIL for 12 years an obstacle to prevent another branch of democracy, the legislature, from performing its duty to the people who elected it. Second, and more important, the Delhi High Court’s jurisdiction does not cover only the state legislature but also Parliament, for its powers on matters concerning clashes of jurisdiction with the Lok Sabha are spelt out in exactly the same words. Thus, Justice Mittal’s decision has created a situation in which the fact that a matter is sub judice can bar the Lok Sabha from taking cognisance of a misrepresentation of facts by the bureaucracy or any other person or institution whom it summons for an accounting.

Parliamentary practice had found a way around it by giving the speaker the right to waive conflicts of jurisdiction so that a case could be heard by it and the judiciary at the same time. This happened during the Bofors case, and again in the 2G case. The same waiver rights apply to the Delhi assembly speaker as well. Justice Mittal was either not aware of this or chose to discount it. This is a lacuna that Parliament should move speedily to fill. The fact that previous Lok Sabhas and Vidhan Sabhas have not had a shining record in enforcing accountability on the executive does not mean that they should be denied the opportunity to do so in the future.

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