On Thursday (December 21), Biju Janata Dal (BJD) MP Sasmit Patra made a strong case for Parliament’s independence in drafting legislation, saying that the Supreme Court cannot dictate the legislative powers of Parliament. The BJD MP said that no five-judge bench of the Supreme Court can represent 140 crore Indians.
In his speech during the discussion on the Bharatiya Nyaya (Second) Sanhita 2023; Bharatiya Nagarik Suraksha (Second) Sanhita 2023; and Bharatiya Sakshya (Second) Bill 2023 in Rajya Sabha, BJD MP Sasmit Patra said, “I want to tell the parliament about a special topic, it is not merely about the three laws…I don’t know how many of us have gone to the Supreme Court’s court number one and stood among lawyers there…when a constitutional bench was formed on same-sex marriage issue then as an intervenor I was appointed to present my side. I noticed an interesting aspect there…some advocates there opined that the Parliament may pass the bills and make laws but here we can challenge and strike it down, what will the Parliament do (Sansad kya ukhaad lega)? This is the mindset.”
Welcoming the proposed bills (now passed) BJD MP went on to emphasise the importance of parliamentary sovereignty. “The constitution is supreme, it is a fact. Just the way we don’t go into the judiciary and make judicial pronouncements and the way we legislate in the parliament our [MP’s] rights should also remain intact,” Patra said.
He further discussed the legislative competence in the context of the same-sex marriage issue saying that if such a major change is to be brought about, and a five-judge bench decides it and imposes on the population of 140 crore Indians will there be same-sex marriages in every household, or states or cities. Patra said that he argued that the matter be handed over to the Parliament.
“The Parliament reflects the true conscience and mandate of the people of this country. We [MPs] have come here with the support of 140 crore citizens. Many a time when MPs are briefed by the law department, the Kesavananda Bharti case is mentioned to emphasise that the Parliament has no right of the basic structure… we [MPs] cannot legislate on that…” Patra said.
The BJD MP then quoted Vice President Jagdeep Dhankhar’s address during the 83rd All India Presiding Officers Conference about the basic structure, separation of powers and parliamentary sovereignty. “We are Members of Parliament, making laws for the country is our duty. But today Judiciary is undertaking the legislation and after sending the legislation we say this is pending in court….so what? The court will do its job and we will do ours. Will Parliament rely on the Judiciary? This needs to be discussed,” Patra stressed.
Quoting Vice President Dhankar’s speech, Patra said democracy blossoms when the legislature, executive and judiciary act in tandem and fructify the constitutional goals and fulfil the aspirations of the country. He highlighted that the three pillars of democracy should not intervene and perform functions of one another. Patra, thus, asserted that bringing up Kesavananda Bharti case to raise questions over the Parliament’s rights to legislate over certain matters is wrong as both the houses of the Parliament – the Lok Sabha and the Rajya Sabha have the complete rights to legislate. “This clarity should be there.”
Notably, the Kesavananda Bharti Vs State of Kerala, 1973 case verdict founded the Basic structure doctrine of the Indian Judiciary which meant that some basic features of the Indian constitution could not be altered even by means of amendment under article 368.
Furthermore, he questioned how can the Parliament or its legislations stand in contempt of court. “Can the courts give us rights and directives? What’s this fear? We [MPs] are relinquishing our rights that is why they are going there [to the Judiciary]” Patra said concluding his fierce speech reiterating that the Judiciary, the Legislature and the Executive are three equal parts of the basic structure of power with the Constitution at the helm.
As reported earlier, three momentous Bills to replace the Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act were passed by the Rajya Sabha on Thursday. Replying to the debate in Rajya Sabha on bills that seek to replace the Indian Penal Code (IPC) of 1860, the Code of Criminal Procedure (CrPC) and the Indian Evidence Act, Union Home Minister Amit Shah said the implementation of new criminal laws will ensure an end to ‘tareekh pe tareekh’ era and justice will be given in three years.
The House earlier took up discussion on the Bharatiya Nyaya (Second) Sanhita, 2023, the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 and the Bharatiya Sakshya (Second) Bill, 2023. The three bills were passed by Lok Sabha on December 20.
