And If The Fire Spread...

The failure of Protem Speaker in Jharkhand Assembly to hold the trial of strengthhad created a piquant situation and legal experts were divided on what the Supreme Court could do about thedefiance before the central government moved in to "persuade" thechief minister to resign? What if the Governor or the outgoing chief ministerrefused to resign? What if a central government in such a situation did not wishto impose the president's rule?

While a set of experts feel that in such a case the proceedings of the House are beyond its jurisdiction, another set says if the failure was deliberate, it could invite contempt.

"No action whatsoever, including contempt proceedings could be initiated against either the protem speaker or the legislators by the apex court for today's development in Jharkhand Assembly," said those who opined that the court could do little.

The Protem speaker Pradeep Kumar Balmucchu could claim, they point out, that he tried to conduct the Assembly proceedings which were disrupted by the UPA legislators. However the proceedings of the House including the speech of MLAs being "privileged" it is not possible for judiciary to take any action.

Former Law Minister Shanti Bhushan maintains that any action by the Supreme Court against the Protem Speaker or MLAs for not holding the trust vote as per its directivewould have amounted to breach of privilege of Assembly. The court directions were without jurisdiction as Article 212,he argues, which clearly provides that no court will have jurisdiction against the official of Legislative Assembly or with respect of conduct of MLAs.

Noted constitutional expert P P Rao says the courts are reluctant in initiating contempt proceedings as the Supreme Court in JMM bribery case had made it clear that the speech made in the Houseare privileged and no action could be taken against the MLAs. "This is clear from Article 194 (1) and (2) of the Constitution," he said.

A reputed senior advocate and constitutional expert on condition of anonymitymaintains that "the Jharkhand development has shown that Speaker and Legislators cannot be controlled by the SupremeCourt ... Since it was apparently and ostensibly beyond the control of protem Speaker because of disturbance in the House, the questionthat he disobeyed the orders of the Supreme Court will not arise. The apex court cannot point a figure at Protem Speaker for havingdisobeyed because he will say the matter was beyond his control,"  heargues.

The Speaker and other parties, according to him, had taken the view that the apex court was not justified in interfering with the House as it would affect supremacy and privileges of both Parliament and Assemblies.The result is that the Supreme Court is not likely to repeat what it did on Jharkhandissue, he maintains.

Senior advocate Rajeev Dhavan said that the options left would either be for theapex court to pass further directions and the MLAs might decide to have a full-fledged discussion on a confidence orit would  be a  "constitutional breakdown as it would be premature to say that the dispute would be resolved by a Presidential Reference as suggested by the Speaker of LokSabha."

Former Solicitor General Harish Salve and advocate Prashant Bhushan maintainthat if the failure was genuine, then the court may condone it but if it was deliberate it could consider contempt.