Loan waiver may still face judicial scrutiny

NEW DELHI. Chief Justice K G Balakrishnan on Monday scotched an attempt to initiate public interest litigation (PIL) on the proposed farm loan waiver even before Parliament had an opportunity to discuss the Budget. The PIL filed on the very first working day after the presentation of Budget sought to launch a concurrent debate on the loan waiver in the apex court. The move has been thwarted — but only for the time being. While declining to give an out-of-turn hearing to the PIL filed by advocate M L Sharma, Justice Balakrishnan pointed out that the farm waiver was only a "budget proposal" which cannot be legally challenged till it attains finality. "We don't want to take up a matter that is going to be discussed in Parliament," he said. The CJI has in effect reiterated the first principles of the Constitution under which judicial review can arise only after the proposal crystallizes either as an executive order or as legislation. In the given case, there can be no cause for litigation till the government, strictly speaking, works out a mechanism to give effect to its proposed one-time loan waiver. But the PIL may yet resurface even as Parliament is seized of the Budget. For the CJI's refusal to give an early hearing actually delays the PIL only by a few days. It is anyway due to come up for hearing in the normal course this very month. Going by Justice Balakrishnan's reasoning, the PIL should not be entertained till at least the proposal is pending in Parliament. In other words, it should be dismissed outright. But since it could come up before any of the benches, there is no predicting the outcome of the PIL. Barely two years ago, a bench headed by Justice Arijit Pasayat entertained a PIL on another contentious issue, Mandal II, even before the Bill concerned was introduced in Parliament. And when the Bill was subsequently introduced, Justice Pasayat stretched the system to the extent of telling Parliament not to proceed with it till the court decided its validity. It was only after the government's counsel protested that the judiciary could not interfere with legislative functioning, Justice Pasayat toned his order down to saying that a copy of the parliamentary standing committee's report on the Bill should be "placed in a sealed cover before this court." In the event, the sealed cover was rendered meaningless as the government gave the report to the court only after it was tabled in Parliament. The general rule, however, is that since a Bill is merely a proposal and not legislation, it falls outside the domain of the courts. This is because a Bill has no legal force and is liable to be changed or even dropped by Parliament. The question of challenging the validity of its provisions arises only after the Bill becomes an Act - that is, after it is passed by both Houses and receives the President's assent. The Constitutional right of judicial review applies to Acts, which affect the rights of people one way or the other. The only departure from this rule has been on very rare occasions when the Supreme Court had been called upon by the President to exercise its advisory jurisdiction and give a "report" — opposed to a binding judgment — on some vexatious issue. On some of those occasions, the President referred a Bill to SC for its opinion as an input to Parliament. For instance, the Special Courts Bill meant to deal expeditiously with Emergency excesses was referred to SC in 1978 to avoid charges of political vendetta. Once SC gave the go-ahead, Parliament passed the Bill into law under which leaders like Indira Gandhi and Sanjay Gandhi were tried. Though "nothing that we say in this opinion can deter Parliament from proceeding with the Bill or dropping it," the seven-judge bench headed by then CJI Y V Chandrachud clarified in 1978 that "no court will issue a writ or order restraining Parliament from proceeding with the consideration of a Bill pending before it." It is a sage advice that other judges would do well to remember whenever they are faced with a PIL challenging a Bill or any other proposal pending in Parliament. Times of India; 7 Mar 2008, Manoj Mitta , TNNmanoj.mitta@timesgroup.com