India Follows the U.S.

Unlike compact little England that once ruled them, India and the U.S. are each vast, multiracial, federal democracies that boast supreme courts and written constitutions. Until this month, however, India differed from the U.S. in one vital respect: its constitution was thought to give its legislatures the same freewheeling power as that of Britain's House of Commons--a power to jail critics for contempt with no judicial review whatever.

Now the Indian Supreme Court has changed all that with an historic decision, laying down clear guidelines of court power in a manner reminiscent of the pioneering U.S. Supreme Court under Chief Justice John Marshall in the early 1800s.

As usual, it all started with a prickly rebel. He is Keshav Singh, 40, socialist author of a pamphlet that flatly charged an Uttar Pradesh state legislator with being a crook. Haled before the indignant legislature, Singh proudly turned his back and refused even to give his name. Indignant at such irreverence, the legislature ordered Singh locked up in the Lucknow jail for seven days. He countered by getting two judges of Uttar Pradesh's highest court to spring him on bail pending his petition for a writ of habeas corpus. The legislature countered by rearresting Singh--and holding the two judges in contempt. When the full state court issued a stay on the contempt warrants for their colleagues, the legislature issued warrants for their arrest. By that time, things were getting so hot that India's President could only buck the case to India's Supreme Court. The basic issue: Are India's elected legislatures the sole judges of their own powers, privileges and immunities?

In a 6-1 majority opinion, the Supreme Court ruled that British-style legislative omnipotence cannot be permitted in a federal nation governed by a written constitution, where "it is the constitution which is supreme and sovereign." Not only does the Indian constitution provide "rigid separation of powers," ruled the court, but "there is no doubt that the constitution has entrusted the judicature in this country with the task of construing the provisions of the constitution and of safeguarding the fundamental rights of the citizens." To such rights, which include the right of free speech, the court found no exceptions "by reference to any powers or privileges vesting in the legislatures of this country." In short, an Indian has just as much right to criticize legislators as does an American, even if he has to fight up to the Supreme Court to exercise it.

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