Court vs parliament in India

By Sanjoy Majumder
BBC News, Delhi

Nearly one quarter of Indian MPs face criminal charges

A row has broken out in India between the judiciary and parliament over whether the courts have the right to overturn laws passed by parliament.

It comes after several recent judgements by the country's Supreme Court which overturned government decisions on the grounds that they were against the constitution.

Politicians argue that laws passed by parliament should be protected from judicial review since MPs are the people's representatives.

But this is being challenged especially after a recent report showed that nearly a quarter of Indian parliamentarians are facing criminal charges.

Heart of matter

The row is splitting apart two of the pillars of Indian democracy - parliament which has more than 500 directly elected representatives in the lower house and the judiciary which has earned a justifiable reputation for independence.

If a law violates the spirit of the constitution then it cannot be protected Subhash Kashyap constitutional expert

At the heart of the matter is the question of who has a right to finally determine what becomes law under India's constitution, which was drawn up more than 50 years ago.

In recent months, India's Supreme Court has challenged a number of government decisions saying they are unconstitutional.

Earlier this month, the court ruled that affirmative action quotas for disadvantaged groups should be capped at 50% and that prosperous members of these groups should be excluded from benefiting.

And the court has also made a number of rulings which have struck down moves by the government to protect illegal businesses and ordered that their premises be demolished.

Political hurt

The court's interventions have been applauded by many Indians who see it as a way of keeping the government in check.

These decisions, and other similar ones, have been opposed by the country's political parties who are concerned that it could hurt them politically.

Quotas are an area where the Supreme Court has intervened

The government has responded by bringing some of these laws under a special section of the constitution, the ninth schedule, which protects them from judicial review.

Already there is a move to bring other laws, including ones which seek to increase job quotas beyond the permitted level, under it as well

The ninth schedule was originally created in 1951 to protect radical but unpopular laws, such as land reforms, from vested interests who could use the courts to block the legislation.

Now many believe that the government is misusing this provision to push through laws which only serve their interest.

Criminal charges

When it was first created, the ninth schedule had 13 laws - now it has 284, all of them protected from the courts.

There are some who believe that the courts should have the final say.

"If a law violates the spirit of the constitution, then it cannot be protected even by the ninth schedule," constitutional expert Subhash Kashyap told the BBC.

But there is another reason why many believe that parliament's role should be checked.

A recent study by an independent watchdog, the Public Affairs Centre, revealed that some 23% of India's MPs are facing criminal charges ranging from murder to extortion and even rape.

It's a figure that is corroborated even by the country's independent election commission.

Many are questioning whether it is right for these MPs to be given the responsibility of creating laws.