The interpretation of Article 105 of Constitution of India is in issue in these matters. The question is whether in exercise of the powers, privileges and immunities as contained in Article 105, are ...
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CASE NO.:
Writ Petition (civil) 1 of 2006
PETITIONER:
Raja Ram Pal
RESPONDENT:
The Hon'ble Speaker, Lok Sabha & Ors
DATE OF JUDGMENT: 10/01/2007
BENCH:
SABHARWAL, Y.K. (CJI) & BALAKRISHNAN, K.G. (J) & THAKKER, C.K.(J) & R.V. RAVEENDRAN (J) &
JAIN, D.K. (J)
JUDGMENT:
J U D G M E N T
With
TC (C) Nos. 82/2006, 83/2006, 84/2006, 85/2006, 86/2006, 87/2006,
88/2006, 89/2006, 90/2006 and WP (C) No. 129/2006.
Y.K. Sabharwal, CJI.
Factual Backgrounds
The interpretation of Article 105 of Constitution of India
is in issue in these matters. The question is whether in
exercise of the powers, privileges and immunities as contained
in Article 105, are the Houses of Parliament competent to
expel their respective Members from membership of the
House. If such a power exists, is it subject to judicial review
and if so, the scope of such judicial review.
The unfortunate background in which the aforesaid
questions have arisen is the allegation that the Members of
Parliament (MPs) indulged in unethical and corrupt practices
of taking monetary consideration in relation to their functions
as MPs.
A private channel had telecast a programme on 12th
December, 2005 depicting 10 MPs of House of People (Lok
Sabha) and one of Council of States (Rajya Sabha) accepting
money, directly or through middleman, as consideration for
raising certain questions in the House or for otherwise
espousing certain causes for those offering the lucre. This led
to extensive publicity in media. The Presiding Officers of each
Houses of Parliament instituted inquiries through separate
Committees. Another private channel telecast a programme
on 19th December, 2005 alleging improper conduct of another
MP of Rajya Sabha in relation to the implementation of
Member of Parliament Local Area Development Scheme
('MPLAD' Scheme for short). This incident was also referred to
a Committee.
The Report of the inquiry concluded, inter alia, that the
evidence against the 10 members of Lok Sabha was
incriminate; the plea that the video footages were
doctored/morphed/edited had no merit; there was no valid
reason for the Committee to doubt the authenticity of the
video footage; the allegations of acceptance of money by the
said 10 members had been established which acts of
acceptance of money had a direct connection with the work of
Parliament and constituted such conduct on their part as was
unbecoming of Members of Parliament and also unethical and
calling for strict action. The majority report also recorded the
view that in case of misconduct, or contempt, committed by its
members, the House can impose punishment in the nature of
admonition, reprimand, withdrawal from the House,
suspension from service of House, imprisonment, and
expulsion from the House. The majority Report recorded its
deep distress over acceptance of money by MPs for raising
questions in the House and found that it had eroded the
credibility of Parliament as an institution and a pillar of
democracy in this country and recommended expulsion of the
10 members from the membership of Lok Sabha finding that
their continuance as Members of the House would be
untenable. One member, however, recorded a note of dissent
for the reasons that in his understanding of the procedure as
established by law, no member could be expelled except for
breach of privileges of the House and that the matter must,
therefore, be dealt with according to the rules of the Privileges
Committee.
On the Report of the Inquiry Committee being laid on the
table of the House, a Motion was adopted by Lok Sabha
resolving to expel the 10 members from the membership of
Lok Sabha, accepting the finding as contained in the Report of
the Committee that the conduct of the members was unethical
and unbecoming of the Members of Parliament and their
continuance as MPs is untenable. On the same day i.e. 23rd
December, 2005, the Lok Sabha Secretariat issued the
impugned notification notifying the expulsion of those MPs
with effect from same date. In the Writ Petitions/Transfer
Cases, the expelled MPs have challenged the constitutional
validity of their respective expulsions.
Almost a similar process was undertaken by the Rajya
Sabha in respect of its Member. The matter was referred to
the Ethics Committee of the Rajya Sabha. As per the majority
Report, the Committee found that the Member had accepted
money for tabling question in Rajya Sabha and the plea taken
by him in defence was untenable in the light of evidence before
it. However, one Member while agreeing with other Members
of the Committee as to the factual finding expressed opinion
that in view, amongst others, of the divergent opinion
regarding the law on the subject in judgments of different High
Courts, to which confusion was added by the rules of
procedure inasmuch as Rule 297(d) would not provide for
expulsion as one of the punishments, there was a need for
clarity to rule out any margin of error and thus there was a
necessity to seek opinion of this Court under Article 143(1) of
the Constitution.
The Report of the Ethics Committee was adopted by
Rajya Sabha concurring with the recommendation of
expulsion and on the same date i.e. 23rd December, 2005, a
notification notifying expulsion of the Member from
membership of Rajya Sabha with immediate effect was issued.
The case of petitioner in Writ Petition (C) No.129/2006
arises out of different, though similar set of circumstances. In
this case, the telecast of the programme alleged improper
conduct in implementation of MPLAD Scheme. The
programme was telecast on 19th December, 2005. The Report
of the Ethics Committee found that after viewing the unedited
footage, the Committee was of the view that it was an open
and shut case as Member had unabashedly and in a
professional manner demanded commission for helping the so-
called NGO to set up projects in his home state/district and to
recommend works under MPLAD Scheme. The Committee
came to the conclusion that the conduct of the Member
amounts to violations of Code of Conduct for Members of
Rajya Sabha and it is immaterial whether any money changed
hands or not or whether any commission was actually paid or
not. It found that the Member has not only committed gross
misdemeanor but by his conduct he also impaired the dignity
of the House and its Member and acted in a manner which is
inconsistent with the standards that the House is entitled to
expect of its Members. Since the conduct of the Member has
brought the House and its Member into disrepute, the
Committee expressed the view that the Member has forfeited
his right to continue as Member and, therefore, recommended
his expulsion from the membership of the House. The Rajya
Sabha accepted the recommendations of the Ethics Committee
and Motion agreeing with the recommendation was adopted on
21st March, 2006 thereby expelling the Member from the
membership bringing to an end his membership. On the same
date notification was issued by Rajya Sabha Secretariat.
The two Members of Rajya Sabha have also challenged
the constitutional validity of their expulsions.
Article 105 reads as under :
"105. Powers, privileges, etc. of the
Houses of Parliament and of the
members and committees thereof.--(1)
Subject to the provisions of this
Constitution and the rules and standing
orders regulating the procedure of
Parliament, there shall be freedom of
speech in Parliament.
(2) No member of Parliament shall be
liable to any proceedings in any court in
respect of anything said or any vote given
by him in Parliament or any committee
thereof, and no person shall be so liable
in respect of the publication by or under
the authority of either House of
Parliament of any report, paper, voles or
proceedings.
(3) In other respects, the powers,
privileges and immunities of each House
of Parliament, and of the members and
the committees of each House, shall be
such as may from time to time be defined
by Parliament by law, and, until so
defined, shall be those of that House and
of its members and committees
immediately before the coming into force
of section 15 of the Constitution (Forty-
fourth Amendment) Act 1978.
(4) The provisions of clauses (1), (2) and
(3) shall apply in relation to persons who
by virtue of this Constitution have the
right to speak in, and otherwise to take
part in the proceedings of, a House of
Parliament or any committee thereof as
they apply in relation to members of
Parliament."
There is identical provision as contained in Article 194
relating to powers, privileges and immunities of State
legislature. Article 194 reads as under :-
"194.Powers, privileges, etc., of the
House of Legislatures and of the
members and committees thereof.--(1)
Subject to the provisions of this
Constitution and to the rules and
standing orders regulating the procedure
of the Legislature, there shall be freedom
of speech in the Legislature of every Slate.
(2) No member of the Legislature of a
State shall be liable to any proceedings in
any court in respect of anything said or
any vote given by him in the Legislature
or any committee thereof, and no person
shall be so liable in respect of the
publication by or under the authority of a
House of such a Legislature of any report,
paper, votes or proceedings.
(3) In other respects, the powers,
privileges and immunities of a House of
the Legislature of a State, and of the
members and the committees of a House
of such Legislature, shall be such as may
from time to time be defined by the
Legislature by law, and, until so defined,
shall be those of that House and of its
members and committees immediately
before the coming into force of section 26
of the Constitution (forty-fourth
Amendment) Act, 1978.
(4) The provisions of clauses (1), (2) and
(3) shall apply in relation to persons who
by virtue of this Constitution have the
right to speak in, and otherwise to take
part in the proceedings of a House of the
Legislature of a State or any committee
thereof as they apply in relation to
members of that Legislature."
Article 105(3) underwent a change in terms of Section 15
of the Constitution (44th Amendment) Act, 1978. In Article
105(3), the words "shall be those of the House of Commons of
the Parliament of the United Kingdom, and of its members and
committees at the commencement of this Constitution" were
substituted by the words "shall be those of that House and of
its members and committees immediately before the coming
into force of Section 15 of the Constitution (fourty-fourth
Amendment) Act, 1978". The similar changes were also
effected in Article 194(3) of the Constitution. These
amendments have no relevance for determining the
interpretation of Article 105(3) since the amendments clearly
seem to be only cosmetic for the purpose of omitting the
reference of the House of Commons in these articles.
Before the amendment in 1978, clause (3) of Article 105
read as under :-
"(3). In other respects, the powers,
privileges and immunities of each House
of Parliament, and of the members and
the committees of each House, shall be
such as may from time to time be defined
by Parliament by law, and, until so
defined, shall be those of the House of
Commons of the Parliament of the United
Kingdom, and of its members and
committees, at the commencement of this
Constitution."
Contentions
The petitioners submit that all the powers,
privileges or immunities, as vested on the date of
commencement of the Constitution of India, in the House of
Commons of the Parliament of United Kingdom had not been
inherited by the legislatures in India under Article 105(3) of
the Constitution.
The main contention urged is that power and privilege of
expulsion was exercised by the House of Commons as a facet
of its power of self-composition and since such power of such
self-composition has not been given by the Constitution to
Indian legislature, it did not inherit the power to expel its
members. The contention is that expulsion is necessarily
punitive in nature rather than remedial and such power vested
in House of Commons as a result of its power to punish for
contempt in its capacity as a High Court of Parliament and
since this Status was not accorded to Indian Legislature, the
power to expel could not be claimed by the Houses of
Parliament under Article 105(3). It is also their contention
that power to expel cannot be asserted through Article 105(3)
also for the reason that such an interpretation would come in
conflict with other constitutional provisions. A grievance has
also been made about denial of principles of natural justice in
the inquiry proceedings and it is contended that there are
gross and patent illegalities which are not protected from
judicial review by Article 122 on plea of procedural
irregularities. The contention of the petitioners further is that
even the plenary powers of the legislature are controlled by the
basic concepts of the Constitution and, therefore, it has to
function within the circumscribed limits. The submission is
that this Court is the final arbiter on the constitutional issues
and the existence of judicial power in such behalf must
necessarily and inevitably postulate the existence of a right in
the citizen to move the Court for protection of fundamental
rights and for due adherence to the constitutional provisions
and scheme in absence of which the power conferred on the
judicial organ would be rendered meaningless. The contention
also is that the extent and scope of power conferred on each
branch of the State, limits on the exercise of such power under
Constitution and any action of any branch that transgresses
such limit is for the judiciary to determine as the final
interpreter of the Constitution. Petitioners submit that the
constitutional and legal protection accorded to the citizens
would become illusory if it were left to the organ in question to
determine the legality of its own action. They further submit
that it is also a basic principle of rule of law permeating every
provision of the Constitution, rather forming its very core and
essence, that the exercise of power by the Executive or any
other authority must not only be conditioned by the
Constitution but also be in accordance with law in which
context it is primarily the function of the judiciary alone to
ensure that the law is observed and there is compliance with
the requirement of the constitutional provisions which is
performed through patent weapon used as power of judicial
review.
On the plea that this Court has the jurisdiction to
exercise the power of judicial review in a case of this nature
where another coordinate organ of the State has asserted and
claimed a power and privilege on the strength of a
Constitutional provision seemingly also claiming "exclusive
cognizance", meaning immunity from judicial interference, the
contentions of the petitioners can be summarized thus:-
(i)The power of judicial review is an incident of and flows
from the concept that the fundamental and higher laws
are the touchstone of the limits of the powers of the
various organs of State which derive power and authority
under the Constitution of which the judicial wing is the
interpreter;
(ii)Unlike in England where Parliament is sovereign, in a
federal State with a written Constitution like India is, the
supremacy of the Constitution is fundamental to its
existence, which supremacy is protected by the authority
of the independent judicial body that acts as the
interpreter thereof through the power of judicial review to
which even the Legislature is amenable and cannot claim
immunity wherefrom;
(iii)The legislative supremacy being subject to the
Constitution, Parliament cannot determine for itself the
nature, scope and effect of its powers which are,
consequently, subject to the supervision and control of
judicial organ;
(iv)The petitioners would also point out that unlike the
Parliament of England, the status of Legislature in India
has never been that of a superior court of record and that
even privileges of Parliament are subject to limits which
must necessarily be ascertainable and, therefore, subject
to scrutiny by the Court, like any other right;
(v)The validity of any proceedings even inside a legislative
chamber can be called in question before the Court when
it suffers from illegality and unconstitutionality and there
is no immunity available to Parliament from judicial
review.
It is the petitioners' contention that the Houses of
Parliament had no power of expulsion of a sitting member.
They plead that the petitioners could not be debarred from
membership of the House by or under the impugned
notifications pursuant to proceedings consequent upon the
media reports inasmuch as substantive and adjectival law had
been disregarded and the Constitutional inhibition placed on
the exercise of power of debarment had been defeated. On the
case that the Indian legislatures cannot claim the power of
expulsion of their members, the contentions are stated thus:-
(i)The Legislature has no power to expel its member since
the Parliament has not enacted any law which provides
for expulsion of a member in a specified circumstance, in
terms of enabling power to legislate on the subject as
available in Article 105(3) of the Constitution;
(ii)The expulsions are illegal, arbitrary and unconstitutional,
being violative of the provisions of Articles 83, 84 and
101 to 103, 105 and 190 to 193 of the Constitution;
(iii)There is no provision either in the Constitution of India
or in the Rules of Procedure and Conduct of Business of
the Houses of Parliament for expulsion of a member by
adoption of a motion and thus the impugned acts were
beyond the jurisdiction of Parliament;
(iv)The expulsion of the petitioners from the Legislature
through a motion adopted by simple majority was a
dangerous precedent which would give dictatorial powers
to the ruling majority in the Legislatures in future and
thus be prone to further abuse;
(v)The Constitutional law governing the democracies the
world over, even in other jurisdictions governed by
written Constitutions, would not allow the power of
exclusion of the elected members unto the legislative
chamber.
Claiming that they were innocent and had been falsely
trapped, by the persons behind the so-called sting operation
who had acted in a manner actuated by mala fides and greedy
intent for cheap publicity and wrongful gains bringing the
petitioners into disrepute, the Petitioners question the
procedure adopted by the two Houses of Parliament alleging
that it suffered from gross illegality (as against procedural
irregularity) calling for judicial interference. In this respect, the
petitioners submit that the enquiries conducted by the two
Houses were unduly hurried; were neither fair nor impartial
and have resulted in gross violation of rules of natural justice
which were required to be followed inasmuch as the action
that was contemplated would entail civil consequences; the
Petitioners had not even been treated as ordinary offenders of
law and deprived of basic opportunity of defending themselves
through legal counsel and opportunity to explain; the evidence
in the form of videography etc. had been relied upon without
opportunity being given to them to test the veracity of such
evidence, specially in the face of their defence that the video
clippings had been doctored or morphed which plea had not
been properly examined or enquired into and the evidence of
such nature had been relied upon in violation of the settled
law; the expulsions are illegal, arbitrary and unconstitutional,
being violative of the provisions of Articles 14 & 21 of the
Constitution; the petitioners claim that as a consequence of
the impugned decisions they had suffered irreparable loss and
their image and prestige had been lowered in the eyes of the
electorate.
The two Houses of Parliament, through their respective
secretariats, have chosen not to appear in the matter. The
impugned decisions are, however, sought to be defended by
the Union of India. The contention urged on behalf of Union of
India is that the conduct of accepting money for tabling
questions and raising matters in the House was considered by
the respective Houses of Parliament as unbecoming of
members of the House rendering them unfit for being
members of the respective Houses. The actions of expulsions
are matters within the inherent power and privileges of the
Houses of Parliament. It is a privilege of each House to
conduct its internal proceedings within the walls of the House
free from interference including its right to impose disciplinary
measures upon its members. The power of the Court to
examine the action of a House over outsider in a matter of
privilege and contempt does not extend to matters within the
walls of the House over its own members. When a member is
excluded from participating in the proceedings of the House, it
is a matter concerning the House and the grievance of
expulsion is in regard to proceedings within the walls of
Parliament and in regard to rights to be exercised within the
walls of the House, the House itself is the final judge. The
expulsion of these members has been rightly carried out by
respective Houses in exercise of their powers and privileges
under Article 105(3) of the Constitution which power and
privilege of expulsion has been exercised by the Houses of
Parliament in the past as well. The expulsion does not create
any disability to be re-elected again as a member of the House.
We have heard learned Senior Advocates Mr. Ram
Jethmalani, Mr. P.N. Lekhi for the petitioners as also Dr. K.S.
Chauhan, Advocate and other learned counsel appearing for
the petitioners. For the respondents, we have heard Mr. Gopal
Subramanian, learned additional Solicitor General appearing
on behalf of Attorney General for India and Mr. T.R.
Andhyarujina, learned Senior Advocate on behalf of Union of
India.
Constitutional Scheme
To appreciate the contentions, it is necessary to first
examine the constitutional scheme.
That the Constitution is the Supreme lex in this Country
is beyond the pale of any controversy. All organs of the State
derive their authority, jurisdiction and powers from the
Constitution and owe allegiance to it. This includes this Court
also which represents the judicial organ. In the celebrated
case of Kesavananda Bharati v. State of Kerala [(1973) 4
SCC 225], this Court found certain basic features of the
Constitution that include, besides supremacy of the
Constitution, the republican and democratic form of
Government, and the separation of powers between the
Legislature, the Executive and the Judiciary. The principle of
supremacy of the Constitution has been reiterated by this
Court post Kesavananda Bharati in case after case
including, to name just some of them, Indira Nehru Gandhi
v. Raj Narain [1975 (Suppl) SCC 1], Minerva Mills Ltd. v.
Union of India, [(1980) 3 SCC 625], Sub-Committee on
Judicial Accountability v. Union of India [(1991) 4 SCC
699], I. Manilal Singh v. H . Borobabu Singh (Dr), [1994
Supp (1) SCC 718], Union of India v. Assn. for Democratic
Reforms,[(2002) 5 SCC 294], Special Reference No. 1 of
2002, In re (Gujarat Assembly Election matter) [(2002) 8
SCC 237], People's Union for Civil Liberties (PUCL) v. Union
of India,[(2003) 4 SCC 399], Pratap Singh v. State of
Jharkhand, [(2005) 3 SCC 551], Rameshwar Prasad (VI) v.
Union of India, [(2006) 2 SCC 1], Kuldip Nayar vs. Union of
India, [(2006) 7 SCC 1].
That the parliamentary democracy in India is
qualitatively distinct from the one in England from where we
have borrowed the Westminster model of Government, is also
well settled. In this context, before proceeding further on this
premise, we may quote the following observations of the
Constitution Bench (7 Judges) appearing at page 444 in
Special Reference No. 1 of 1964, [(1965) 1 SCR 413] (UP
Assembly case) :-
"In dealing with this question, it is
necessary to bear in mind one
fundamental feature of a Federal
Constitution. In England, Parliament is
sovereign; and in the words of Dicey, the
three distinguishing features of the
principle of Parliamentary Sovereignty are
that Parliament has the right to make or
unmake any law whatever; that no
person or body is recognised by the law of
England as having a right to override or
set aside the legislation of Parliament,
and that the right or power of Parliament
extends to every part of the Queen's
dominions [Dicey, The Law of the
Constitution 10th ed. Pp.xxxiv, xxxv]. On
the other hand, the essential
characteristic of federalism is "the
distribution of limited executive,
legislative and judicial authority among
bodies which are coordinate with and
independent of each other". The
supremacy of the constitution is
fundamental to the existence of a federal
State in order to prevent either the
legislature of the federal unit or those of
the member States from destroying or
impairing that delicate balance of power
which satisfies the particular
requirements of States which are
desirous of union, but not prepared to
merge their individuality in a unity. This
supremacy of the constitution is
protected by the authority of an
independent judicial body to act as the
interpreter of a scheme of distribution of
powers. Nor is any change possible in the
constitution by the ordinary process of
federal or State legislation [Ibid p.Ixxvii].
Thus the dominant characteristic of the
British Constitution cannot be claimed by
a Federal Constitution like ours."
In the constitutional scheme that has been adopted in
India, the Legislatures play a significant role in pursuit of the
goals set before the nation and command the position of
grandeur and majesty. The Legislatures undoubtedly have
plenary powers but such powers are controlled by the basic
concepts of the written constitution and can be exercised
within the legislative fields allotted to their respective
jurisdiction under the Seventh Schedule. They have the
plenary legislative authority and discharge their legislative
functions by virtue of the powers conferred on them by the
relevant provisions of the Constitution. But, the basis of that
power is the Constitution itself. In this context, it would be
fruitful to also take note of the following observations
appearing at page 445 of the afore-mentioned judgment in UP
Assembly case :-
".Besides, the legislative supremacy
of our legislatures including the
Parliament is normally controlled by the
provisions contained in Part III of the
Constitution. If the legislatures step
beyond the legislative fields assigned to
them, or acting within their respective
fields, they trespass on the fundamental
rights of the citizens in a manner not
justified by the relevant articles dealing
with the said fundamental rights, their
legislative actions are liable to be struck
down by courts in India. Therefore, it is
necessary to remember that though our
legislatures have plenary powers, they
function within the limits prescribed by
the material and relevant provisions of
the Constitution."
The judicial organ of the State has been made the final
arbiter of Constitutional issues and its authority and
jurisdiction in this respect is an important and integral part of
the basic structure of the Constitution of India. Before coming
in grips with the complex Constitutional questions that have
been raised, we would well remind ourselves, more than we do
everyone else, of the following further observations made at
page 447 :-
"In this connection it is necessary to
remember that the status, dignity and
importance of these two respective
institutions, the legislatures and the
Judicature, are derived primarily from
the status, dignity and importance of the
respective causes that are assigned to
their charge by the Constitution. These
two august bodies as well as the
Executive which is another important
constituent of a democratic State, must
function not in antinomy nor in a spirit of
hostility, but rationally, harmoniously
and in a spirit of understanding within
their respective spheres, for such
harmonious working of the three
constituents of the democratic State
alone will help the peaceful development,
growth and stabilisation of the
democratic way of life in this country."
The issues involved are required to be examined bearing
in mind the basic ethos of our Constitutional scheme in the
above light.
The Constitution of India provides through Chapter II of
Part V for Union Legislature, called the "Parliament".
Parliament consists of, besides the President, two Houses
known respectively as the Council of States (Rajya Sabha) and
the House of the People (Lok Sabha). Article 80 deals with the
matter of composition of Rajya Sabha. Article 81, on the
other hand, provides for composition of Lok Sabha. In terms
of Article 83, Rajya Sabha is a permanent body, not subject to
dissolution, its continuance being ensured by replacements of
one third of the members who retire on the expiration of every
second year. Lok Sabha, on the other hand, is given a fixed
term of five years, unless sooner dissolved or unless its term is
extended in situation of emergency as provided in the proviso
to sub-rule (2) of Article 83.
In the loose federal structure that India has adopted for
itself, wherein India is an indestructible Union of destructible
units, there is a provision for State Legislature in Chapter III of
Part VI governing the States, almost similar to the set up at
the Centre.
The relations between the Union and the States are
controlled by the provisions contained in Part XI of the
Constitution.
The Constitution permits, through Article 118 and Article
208, the Legislature at the Centre and in the States
respectively, the authority to make rules for regulating their
respective procedure and conduct of business "subject to the
provisions of this Constitution".
Since we are concerned mainly with the Houses of
Parliament in these proceedings, it may be mentioned that
each House in exercise of its powers under Article 118 has
framed detailed rules of procedure which are called "Rules of
Procedure and Conduct of Business in Lok Sabha" and Rules
of Procedure and Conduct of Business in the Council of
States".
Conscious of the high status of these bodies, the
Constitution accorded certain powers, privileges and
immunities to the Parliament and State Legislatures and their
respective members. For this purpose, specific provisions were
included in the Constitution in Articles 105.
For the present, it may only be noticed that sub-Article
(1) of Article 105 and Article 194 respectively confers on the
Members of Parliament and the State Legislatures respectively
"freedom of speech" in the Legislature, though "subject to the
provisions" of the Constitution and "subject to the rules and
orders regulating the procedure" of Parliament or of the
Legislatures, as the case may be.
Sub-Article (2) of both the said Articles grants, inter alia,
absolute immunity to members of the Legislatures from "any
proceedings in any Court in respect of anything said or any
vote given" by them in the Legislatures or any Committee
thereof. Sub-Article (3) of Article 105 and Article 194 declares
that "the powers, privileges and immunities" of each House of
the Legislatures and the members and Committees thereof, "in
other respects" shall be "such as may from time to time be
defined" by the Parliament or the State Legislature, as the case
may be, "by law" and, "until so defined", to be those as were
enjoyed by the said Houses or members of the Committees
thereof immediately before coming into force of the
amendment in 1978.
Article 122 is of great import in the context of, amongst
others, Article 105, since it seems to restrict the jurisdiction of
the Courts in relation to "proceedings of Parliament". It reads
as under:-
"122. Courts not to inquire into
proceedings of Parliament.(1) The
validity of any proceedings in Parliament
shall not be called in question on the
ground of any alleged irregularity of
procedure.
(2) No officer or member of Parliament in
whom powers are vested by or under this
Constitution for regulating procedure or
the conduct of business, or for
maintaining order, in Parliament shall be
subject to the jurisdiction of any court in
respect of the exercise by him of those
powers."
There is a similar provision in relation to State
Legislature.
Having given our anxious considerations to the myriad
issues that have been raised on both sides of the divide, we
have found that the primordial questions that need to be
addressed by the Court can be formulated as under :-
1. Does this Court, within the constitutional scheme, have
the jurisdiction to decide the content and scope of
powers, privileges and immunities of the Legislatures and
its members?
2. If the first question is answered in the affirmative, can it
be found that the powers and privileges of the
Legislatures in India, in particular with reference to
Article 105, include the power of expulsion of their
members?
3. In the event of such power of expulsion being found, does
this Court have the jurisdiction to interfere in the
exercise of the said power or privilege conferred on the
Parliament and its members or Committees and, if so, is
this jurisdiction circumscribed by certain limits?
In our approach to these issues of great importance, we
have followed the advice of Thomas Huxley in the following
words :-
"It is not who is right, but what is right,
that is of importance"
In our quest, again borrowing the words of Thomas
Huxley, we must
"learn what is true in order to do what is
right".
The need, if any, to take up for consideration, the
grievances expressed by the petitioners in relation to the
manner of exercise of the power and privilege asserted by both
Houses of Parliament to expel their respective members would
arise in light of decision on the two first-mentioned cardinal
questions.
Court's Jurisdiction to decide on the scope of Article
105(3)
There was virtually a consensus amongst the learned
counsel that it lies within the powers and jurisdiction of this
Court to examine and determine the extent of power and
privileges to find out whether actually power of expulsion is
available under Article 105(3) or not.
Having regard to the delicate balance of power
distributed amongst the three chief organs of the State by the
Constitution of India and the forceful assertions made
particularly with regard to the limitation on court's
jurisdiction, we decided not to depend upon mere concession
of the learned counsel as to our jurisdiction. We thought it
prudent to examine it fully even in the context of primary
question about the judicial authority to go into the question of
existence of a particular power or privilege asserted and
claimed under Article 105, so as to reassure ourselves that we
were not in any manner intruding into a zone which is out-of-
bounds for us.
Fortunately, the subject at hand is not a virgin territory.
There have been occasions in the past for this court to go into
these issues, though in somewhat different fact situations.
Similarly, we have the benefit of opinion on these questions,
expressed by at least three High Courts, though that happens
to be a divided opinion.
As can be seen from the language employed in Article
105, the Parliament is empowered to define, by law, the
powers, privileges and immunities of each House and of their
Members and Committees in respects other than those
specified in the Constitutional provisions. Though some part
of the arguments advanced on behalf of the petitioners did try
to refer to certain statutory provisions, for example, provisions
contained in Sections 8 to 11 of the Representation of People
Act 1951, as referable to the enabling power given to the
Parliament in the first part of Article 105(3) but for present
purposes, we would assume that Parliament has not yet
exercised the said enabling power in as much as there is no
law enacted till date that can be referred as cataloging the
powers, privileges and immunities of each House of Parliament
and of their members and committees. This consequence
leads to continuity of the life of the second part of Article
105(3) in as much as that part of the provision was designed
to come to an end as soon as the Parliament defined by law its
powers, privileges and immunities. Therefore, powers,
privileges and immunities not having been defined, the
question is what are those powers which were enjoyed by
House of Commons at the commencement of our Constitution
as that will determine the powers, privileges and immunities of
both Houses of Indian Parliament.
The history of the subject of Parliamentary privileges
indicates numerous instances where the effort at tracing the
dividing line between the competence of courts and the
exclusive jurisdiction of the legislature threw up complex
Constitutional questions giving rise to divergent opinions and
decisions even in England, more importantly, in connection
with the House of Commons. These questions included the
abstract question whether the law of Parliament in such
regard was a "particular law" or "part of the common law" in
its wide and extended sense and the practical question
whether the House of Commons was to be the sole judge of a
matter of privilege claimed by it even when the rights of third
parties were involved or whether in such cases the issues
could be decided in the courts. The next question arising from
the last mentioned issue naturally concerned the extent of the
power of the judges that is to say if they were bound to accept
and apply the parliamentary interpretation of the law or were
free to form their own view in such regard.
The dust has since settled even in England which
jurisdiction since concedes the jurisdiction of the court to
decide all questions of privilege, except those concerning
exclusive jurisdiction of the legislative chamber over its own
internal proceedings.
The works of English and Commonwealth authors have
always been treated as the most authoritative references for
determining the source of a Privilege or power exercised by the
House of Commons. They include Halsbury's Laws of England,
Maitland, Wade and Phillips, Keir & Lawson, Sir Barnett
Cocks, Ridges on Constitutional Law, and Sir William Anson's
"The Law and Custom of the Constitution". Sir Thomas
Erskine May was a clerk of the House of Commons (1871-
1886). His work "Parliamentary Practice", hereinafter referred
to as "May's Parliamentary Practice", is universally regarded
as an authoritative exposition of this branch of law.
The following extract from page 183 in chapter 11
"Jurisdiction of Courts of Law in Matters of Privilege" as
appearing in Erskine May's Parliamentary Practice, 20th
Edition reflects the prevalent law in United Kingdom:-
"The problem thus became one of
reconciling the law of privilege with the
general law. The solution gradually
marked out by the courts is to insist on
their right in principle to decide all
questions of privilege arising in litigation
before them, with certain large
exceptions in favour of parliamentary
jurisdiction. Two of these, which are
supported by a great weight of
authority, are the exclusive jurisdiction
of each House over its own internal
proceedings, and the right of either
House to commit and punish for
contempt. While it cannot be claimed
that either House to commit or formally
acquiesced in this assumption of
jurisdiction by the courts, the absence
of any conflict for over a century may
indicate a certain measure of tacit
acceptance."
The learned counsel for all sides have referred to
Bradlaugh v. Gosset [1884 12 QBD 271]. Charles
Bradlaugh, the plaintiff in that case before Queen's Bench
Division had been elected a Burgess to serve in the House of
Commons and was entitled to take oath by law prescribed to
be taken by the members of the said chamber of legislature
and to sit and vote in the House as an elected representative.
This resolution was explained in due course by Speaker to
mean that the exclusion of Bradlaugh from the House would
continue "until he should engage not to attempt to take the
oath in disregard of the resolution of the House now in force".
The issues that were raised before the court included the
question whether the House of Commons had a right to pass
such a resolution forbidding the member of the House within
the walls of the House itself from doing something which by
the law of the land he had a right to do so and whether the
court could inquire into the said right and allow an action to
be maintained by a member of the House. Reliance has been
placed on certain observations made in the judgment that was
rendered in the said fact situation. At page 275, Lord
Coleridge, C.J. observed as under:-
"Alongside, however, of these
propositions, for the soundness of which I
should be prepared most earnestly to
contend, there is another proposition
equally true, equally well established,
which seems to me decisive of the case
before us. What is said or done within
the walls of Parliament cannot be
inquired into in a court of law. On this
point all the judges in the two great cases
which exhaust the learning on the
subject Burdett v. Abbott [14 East, 1,
148] and Stockdale v. Hansard [9 Ad. &
E. 1.]; - are agreed, and are emphatic.
The jurisdiction of the House over their
own members, their right to impose
discipline within their walls, is absolute
and exclusive. To use the words of Lord
Ellenborough, "They would sink into utter
contempt and inefficiency without it." [14
East, at p. 152]"
The learned counsel then referred to the Privy Council
decision in Richard William Prebble v. Television New
Zealand Ltd. [1994 (S) WLR 970]. It arose out of a
defamation action by a former Minister of the Government of
New Zealand where proceedings in Parliament were
questioned. The issue of infringement of parliamentary
privilege was raised in the context of Article 9 of the Bill of
Rights 1689 which declared that the freedom of speech and
debates or proceedings in Parliament "ought not to be
impeached or questioned in any court or place out of
Parlyament". The Privy Council observed as under at page
976:-
"In addition to article 9 itself, there is a
long line of authority which supports a
wider principle, of which article 9 is
merely one manifestation, viz. that the
courts and Parliament are both astute to
recognize their respective constitutional
roles. So far as the courts are concerned
they will not allow any challenge to be
made to what is said or done within the
walls of Parliament in performance of its
legislative functions and protect on of its
established privileges. Burdett v. Abbot
(1811) 14 East 1; Stockdale v. Hansard
(1839) 9 Ad. & EI. 1; Bradlaugh v.
Gossett (1884 12 QBD 271; Pickin v.
British Railways Board [(1974) AC 765;
Pepper v. Hart 1993] AC 593. As
Blackstone said in his Commentaries on
the Laws of England, 17th ed. (1830),
vol.1, p. 163:
"the whole of the law and custom of
Parliament has its original from this
one maxim, 'that whatever matter
arises concerning either House of
Parliament, ought to be examined,
discussed, and adjudged in that
House to which it relates, and not
elsewhere.'"
Further, the views formulated in Prebble v. Television
New Zealand Ltd. were expressed at page 980 thus:
"Parties to litigation, by whomsoever
commenced, cannot bring into question
anything said or done in the House by
suggesting (whether by direct evidence,
cross-examination, inference or
submission) that the actions or words
were inspired by in proper motives or
were untrue or misleading. Such matters
lie entirely within the jurisdiction of the
House, subject to any statutory exception
such as exists in New Zealand in relation
to perjury under Section 108 of the
Crimes Act 1961."
The learned counsel would then refer to the law that has
been evolved in India, the case of M.S.M. Sharma v. Sri
Krishna Sinha [1959 Supp (1) SCR 806], hereinafter
referred to as case of Pandit Sharma (I), being perhaps the
first in a series of such cases on the subject.
Pandit Sharma, the petitioner in that case was editor of
an English Daily Newspaper "Searchlight" of Patna. He invited
the wrath of the legislative assembly of Bihar by publishing
extracts from proceedings of the legislative assembly including
certain parts which had been ordered to be expunged by the
Speaker. In this context, the Speaker had referred the matter
to the Privileges Committee of the assembly which in turn
issued a show cause notice to him. Pandit Sharma brought
writ petition in this court under Article 32 of the Constitution
of India alleging that the proceedings initiated by the
legislative assembly had violated his fundamental right of
speech and expression under Article 19 (1) (a) as also the
fundamental right of protection of his personal liberty under
Article 21. The case was decided by a Constitution Bench (five
Judges), with main focus on two principal points; namely, the
availability of a privilege under Article 194(3) of the
Constitution to the House of a legislature in India to prohibit
entirely the publication of the publicly seen and heard
proceedings that took place in the House or even to prohibit
the publication of such part of the proceedings as had been
directed to be expunged and as to whether the privilege of the
legislative chamber under Article 194(3) prevailed over the
fundamental right of a citizen under Article 19 (1) (a).
Noticeably, no specific objection as to the jurisdiction of the
court in examining the issue of existence and availability of
the particular privilege was raised at any stage.
It may be mentioned here that the writ petition of Pandit
Sharma was dismissed on the basis of majority view, inter alia,
holding that the legislatures in India were vested with the
power or privilege of prohibiting the publication of debates or
proceedings that took place in the House, of even a true and
faithful report, as indeed of an inaccurate or garbled version
thereof. It was further held that the powers, privileges and
immunities available in terms of Articles 105(3) and 194(3)
stood in the same supreme position as the provisions of Part
III of the Constitution and could not be affected by Article 13
and, therefore, the principle of harmonious construction
required to be adopted. The court concluded that the
fundamental right of free speech and expression under Article
19 (1)(a) being general in nature must yield to Article 194(1)
and the latter part of Article 194(3) which are special
provisions. The challenge to the proceedings under Article
194(3) on the basis of Article 21 was also repelled on the
ground of it being "in accordance with the procedure
established by law" in as much as the rules framed by the
legislative assembly under Article 208 laid down the
procedure.
The case of Pandit Sharma did not end there.
Subsequently, the legislative assembly of Bihar came to be
prorogued several times and the committee of privileges was
also reconstituted. This led to a fresh notice being issued to
Pandit Sharma in the wake of which he brought another writ
petition under Article 32 of the Constitution, substantially
raising the same questions and contentions as had been
agitated in the earlier proceedings by him before this court.
This writ petition was dismissed by the Constitution Bench
(eight Judges). The judgment is reported as M.S.M. Sharma
v. Shree Krishna Sinha [(1961) 1 SCR 96], hereinafter
referred to as case of Pandit Sharma (II).
In Para 10 of the Judgment, this Court observed thus:-
"10. . It was contended that the
procedure adopted inside the House of
the Legislature was not regular and not
strictly in accordance with law. There are
two answers to this contention, firstly,
that according to the previous decision of
this Court, the petitioner has not the
fundamental right claimed by him. He is,
therefore, out of Court. Secondly, the
validity of the proceedings inside the
Legislature of a State cannot be called in
question on the allegation that the
procedure laid down by the law had not
been strictly followed. Article 212 of the
Constitution is a complete answer to this
part of the contention raised on behalf of
the petitioner. No Court can go into those
questions which are within the special
jurisdiction of the Legislature itself,
which has the power to conduct its own
business. Possibly, a third answer to this
part of the contention raised on behalf of
the petitioner is that it is yet premature
to consider the question of procedure as
the Committee is yet to conclude its
proceedings. It must also be observed
that once it has been held that the
Legislature has the jurisdiction to control
the publication of its proceedings and to
go into the question whether there has
been any breach of its privileges, the
Legislature is vested with complete
jurisdiction to carry on its proceedings in
accordance with its rules of business.
Even though it may not have strictly
complied with the requirements of the
procedural law laid down for conducting
its business, that cannot be a ground for
interference by this Court under Article
32 of the Constitution. Courts have
always recognised the basic difference
between complete want of jurisdiction
and improper or irregular exercise of
jurisdiction. Mere non- compliance with
rules of procedure cannot be a ground for
issuing a writ under Article 32 of the
Constitution vide Janardan Reddy v.
State of Hyderabad [1951 SCR 344]."
By far, the advisory opinion given by a Constitution
Bench comprising of seven Judges of this court in UP
Assembly case is the most elaborate discourse on the subject
of powers, privileges and immunities of the legislatures under
the Constitution of India. The matter had arisen out of a
Reference by the President of India under Article 143(1) of the
Constitution seeking opinion of this court on certain issues,
the genesis of which was traceable to certain unfortunate
developments concerning the legislative assembly of the State
of Uttar Pradesh and the Lucknow Bench of the High Court at
Allahabad. The legislative assembly of Uttar Pradesh had
committed one Keshav Singh, who was not one of its
members, to prison for its contempt. The warrant of
committal did not contain the facts constituting the alleged
contempt. Keshav Singh moved a petition, inter alia, under
Article 226 of the Constitution through his advocate
challenging his committal as being in breach of his
fundamental rights. A division bench of the High Court sitting
at Lucknow gave notice to the Government counsel and on the
appointed day proceeded to hear the application for bail. At
that stage, the Government Counsel did not appear. The
division bench heard the application and ordered release of
Keshav Singh on interim bail pending decision on his writ
petition. The legislative assembly found that Keshav Singh
and his advocate in moving the High court and the two Judges
of the High Court in entertaining the petition and granting bail
had committed contempt of the legislative assembly. The
assembly passed a resolution that all of them, including the
two High Court Judges, be produced before it in custody. The
High Court Judges and the advocate in question thereupon
filed writ petitions before the High Court at Allahabad. A full
bench of the High Court admitted the writ petitions and
ordered the stay of execution of the assembly's resolution
against them. Subsequently, the legislative assembly passed a
clarificatory resolution modifying its earlier stand and asking
the Judges and the advocate to appear before the House and
offer their explanation. It was against this backdrop that the
President made a reference under Article 143(1) of the
Constitution seeking opinion mainly as to the Constitutional
relationship between the High Court and the State Legislature
in matters of the powers and privileges of the latter. The
contours of the main controversy were summarized by this
court at page 439 in the report in the following words:-
"27. . Is the House the sole
and exclusive judge of the issue as to
whether its contempt has been
committed where the alleged contempt
has taken place outside the four walls of
the House? Is the House the sole and
exclusive judge of the punishment which
should be imposed on the party whom it
has found to be guilty of its contempt?
And, if in enforcement of its decision the
House issues a general or unspeaking
warrant, is the High Court entitled to
entertain a habeas corpus petition
challenging the validity of the detention of
the person sentenced by the
House?..........."
It is clear from the opinion rendered in UP Assembly
case that the State legislature, though participating in the
hearing, expressed reservations as to the jurisdiction of this
court in any manner in respect of the area of controversy
covered by the questions, insisting that "the question about
the existence and extent of the powers, privileges and
immunities of the House, as well as the question about the
exercise of the powers and privileges were entirely and
exclusively within the jurisdiction of the House; and whatever
this Court may say will not preclude the House from deciding
for itself the points referred to us under this Reference",
referring in this context, inter alia to the fact that there was no
lis before the court which was therefore not exercising "its
judicial function" while dealing with a reference under Article
143 (1).
After examining the issue of absolute immunity of the
proceedings of the House in such matters from challenge in
the court, in light of various Constitutional provisions and
tracing the development of the law on the subject in England
with the help, amongst others, of May's Parliamentary
Practice, this Court summarized the legal position as obtaining
in United Kingdom, at page 467, as under:-
"83. In regard to punishment for
contempt, a similar process of give and
take by convention has been in operation
and gradually a large area of agreement
has, in practice, been evolved.
Theoretically, the House of Commons
claims that its admitted right to
adjudicate on breaches of privilege
implies in theory the right to determine
the existence and extent of the privileges
themselves. It has never expressly
abandoned this claim. On the other
hand, the courts regard the privileges of
Parliament as part of the law of the land,
of which they are bound to take judicial
notice. They consider it their duty to
decide any question of privilege arising
directly or indirectly in a case which falls
within their jurisdiction, and to decide it
according to their own interpretation of
the law [May's Parliamentary Practice, p.
172]. Naturally, as a result of this
dualism the decisions of the courts are
not accepted as binding by the House in
matters of privilege, nor the decisions of
the House by the courts; and as May
points out, on the theoretical plane, the
old dualism remains unresolved. In
practice, however, "there is much more
agreement on the nature and principles
of privilege than the deadlock on the
question of jurisdiction would lead one to
expect" and May describes these general
conclusions in the following words:
(1)It seems to be recognized that, for
the purpose of adjudicating on
questions of privilege, neither House
is by itself entitled to claim the
supermacy over the ordinary courts
of justice which was enjoyed by the
undivided High Court of Parliament.
The supremacy of Parliament,
consisting of the King and the two
Houses, is a legislative supremacy
which has nothing to do with the
privilege jurisdiction of either House
acting singly.
(2)It is admitted by both Houses that,
since either House can by itself add
to the law, neither House can by its
own declaration create a new
privilege. This implies that privilege
is objective and its extent
ascertainable, and reinforces the
doctrine that it is known by the
courts.
On the other hand, the courts
admit:
(3) That the control of each House over its
internal proceedings is absolute and
cannot be interfered with by the
courts.
(4) That a committal for contempt by
either House is in practice within its
exclusive jurisdiction, since the
facts constituting the alleged
contempt need not be stated on the
warrant of committal [May's
Parliamentary Practice, p. 173].
84. It is a tribute to the remarkable
English genius for finding pragmatic ad
hoc solutions to problems which appear
to be irreconcilable by adopting the
conventional method of give and take.
The result of this process has been, in the
words of May, that the House of
Commons has not for a hundred years
refused to submit its privileges to the
decision of the courts, and so, it may be
said to have given practical recognition to
the jurisdiction of the courts over the
existence and extent of its privileges. On
the other hand, the courts have always,
at any rate in the last resort, refused to
interfere in the application by the House
of any of its recognized privileges [May's
Parliamentary Practice, pp. 173-74]. That
broadly stated, is the position of powers
and privileges claimed by the House of
Commons."
Sarkar J. in his separate judgment in the same case was
ad idem with the majority opinion in this context. Rejecting
the contentions based on the observations in Bradlaugh, he
observed at page 508 as under:-
"This passage should suffice to illustrate
the nature of the dispute. It will not be
profitable at all, and indeed I think it will
be 'mischievous', to enter upon a
discussion of that dispute for it will only
serve to make it turbid, by raking up
impurities which have settled down, a
stream which has run clear now for
years. Furthermore that dispute can
never arise in this country for here it is
undoubtedly for the courts to interpret
the Constitution and, therefore, Article
194(3). It follows that when a question
arises in this country under that article
as to whether the House of Commons
possessed a particular privilege at the
commencement of the Constitution, that
question must be settled, and settled
only, by the Courts of law. There is no
scope of the dreaded "dualism" appearing
here, that is, courts entering into a
controversy with a House of a legislature
as to what its privileges are. I think what
I have said should suffice to explain the
nature of the privileges for the purposes
of the present reference and I will now
proceed to discuss the privileges of the
Assembly that are in question in this
case, using that word in the sense of
rights ancillary to the main function of
the legislature."
(Emphasis supplied)
His conclusions to above effect were steeled in view of the
legal position in England, as is clear from the observations at
page 522 of his Judgment, which read as under:-
"All privileges of the House of Commons
are based on law. That law is known as
Lex Parliamenti. Hence privileges are
matters which the House of Commons
possesses as of right. In Stockdale v.
Hansard [112 E. R. 1112] all the Judges
held that the rights of the House of
Commons are based on lex Parliamenti
and that law like any other law, is a law
of the land which the courts are entitled
to administer."
The case State of Karnataka v. Union of India [(1977)
4 SCC 608] decided by a Constitution Bench (seven Judges) of
this court finally clinched the issue beyond the pale of any
doubts. The case had arisen against the backdrop of
appointment by the Central Government of a Commission of
Inquiry against the then Chief Minister of Karnataka. The
State of Karnataka filed a suit in this court, inter alia, for a
declaration that the appointment of the Commission was
illegal, in as much as the terms of reference of the Inquiry
Commission covered matters falling exclusively within the
sphere of the State's legislative and executive power on which
basis, amongst others, it was contended that the federal
structure implicit and accepted as an inviolable basic feature
of the Constitution was being abridged. Some arguments in
the context of this controversy were founded on the powers
and privileges of the legislature of the State under Article 194
of the Constitution. Examining these arguments, Beg CJ. in
his judgment observed as under:-
"63. Now, what learned Counsel for the
plaintiff seemed to suggest was that
Ministers, answerable to a Legislature
were governed by a separate law which
exempted them from liabilities under the
ordinary law. This was never the Law in
England. And, it is not so here. Our
Constitution leaves no scope for such
arguments, based on a confusion
concerning the "powers" and "privileges"
of the House of Commons mentioned in
Articles 105(3) and 194(3). Our
Constitution vests only legislative power
in Parliament as well as in the State
Legislatures. A House of Parliament or
State Legislature cannot try anyone or
any case directly, as a Court of Justice
can, but it can proceed quasi-judicially in
cases of contempts of its authority and
take up motions concerning its
"privileges" and "immunities" because, in
doing so, it only seeks removal of
obstructions to the due performance of
its legislative functions. But, if any
question of jurisdiction arises as to
whether a matter falls here or not, it has
to be decided by the ordinary courts in
appropriate proceedings."
(Emphasis supplied)
In view of the above clear enunciation of law by
Constitutional Benches of this court in case after case, there
ought not be any doubt left that whenever Parliament, or for
that matter any State legislature, claims any power or privilege
in terms of the provisions contained in Article 105(3), or Article
194(3) as the case may be, it is the court which has the
authority and the jurisdiction to examine, on grievance being
brought before it, to find out if the particular power or privilege
that has been claimed or asserted by the legislature is one that
was contemplated by the said constitutional provisions or, to
put it simply, if it was such a power or privilege as can be said
to have been vested in the House of Commons of the
Parliament of United Kingdom as on the date of
commencement of the Constitution of India so as to become
available to the Indian legislatures.
Historical perspective from England
To find out the basis of House of Commons possessing
the right of expulsion of its members, it is necessary to
examine the historical perspective of preliminary powers and
privileges and immunities. For finding out the roots of powers,
privileges and immunities of House of Commons, it is
necessary to refer to the views of constitutional authors
mentioned hereinbefore.
The term 'privilege in law' is defined as immunity or an
exemption from some duty, burden, attendance or liability
conferred by special grant in derogation of common right. The
term is derived from an expression 'privilegium' which means
a law specially passed in favour of or against a particular
person.
May, in his "Parliamentary Practice", has defined
parliamentary privilege as "the sum of the peculiar rights
enjoyed by each House collectively as a constituent part of the
High Court of Parliament, and by members of each House
individually, without which they could not discharge their
functions, and which exceed those possessed by other bodies
of individuals". Thus, privilege, though not part of the law of
the land, is to a certain extent an exemption from the ordinary
law.
Rutledge, in his "Procedure of the House of Commons"
[Volume I, page 46], defined privileges as "the sum of the
fundamental rights of the House and of its individual members
as against the prerogatives of the Crown, the authority of the
courts of law, and the special rights of the House of Lords".
The origin of parliamentary privileges is inextricably
intertwined with the specific history of the institution of
Parliament in England, and more specifically with the battle
between Parliament and the English Monarch for political
control in the 17th century. An understanding of the manner
in which the concept of parliamentary privilege developed,
therefore, requires a sound understanding of the institutional
history of Parliament in the United Kingdom.
Parliament in the United Kingdom emerged in the
Thirteenth Century. By 14th century, Parliament had begun to
exercise a small measure of judicial power. It took on the role
of a court in relation to treason and related matters. In 1376,
Parliament, specifically the Commons, had taken upon itself
the power of impeachment of the King's servants. Thus, the
lords could hear appeals of treason and Bills of Attainder
where the accuser was the King. The long struggle of the
British subjects to bring about a parliamentary democracy
involved royal concessions, people's resistance, claims against
Crown prerogatives, execution of Monarchs and restoration of
Parliament, struggles, advances and retreats, and it is through
these turbulent times that the House of Commons emerged as
a representative form of government.
The origin of some of the Parliamentary privileges
preceded Parliament itself and was part of the King's peace,
common to all his subjects, but in special measure shared by
his servants. The privilege of freedom of speech eventually
came to be statutorily recognized by Article 9 of the Bill of
Rights Act, 1688.
May [23rd edn., pp.78, 79, 83, 89, 90] describes the
historical development of privileges as follows:-
"At the commencement of every
Parliament it has been the custom for the
Speaker, in the name, and on the behalf
of the Commons, to lay claim by humble
petition to their ancient and undoubted
rights and privileges; particularly to
freedom of speech in debate, freedom
from arrest, freedom of access to Her
Majesty whenever occasion shall require;
and that the most favourable
construction should be placed upon all
their proceedings..
Freedom of Speech - The first claim in the
Speaker's petition is for freedom of
speech in debate. By the latter part of
the fifteenth century, the Commons of
England seems to have enjoyed an
undefined right to freedom of speech, as a
matter or tradition rather than by virtue
of a privilege sought and obtained
FREEDOM FROM ARREST The second
of the Speaker's customary petitions on
behalf of the Commons at the beginning
of a Parliament is for freedom from arrest.
The development of this privilege is in
some ways linked to that of other
privileges. Arrest was frequently the
consequence of the unsuccessful
assertion of freedom of speech, for
example.
FREEDOM OF ACCESS The third of the
Speaker's petitions is for freedom of
access to Her Majesty whenever occasion
shall require. This claim is medieval
(probably fourteenth century) in origin,
and in an earlier form seems to have been
sought in respect of the Speaker himself
and to have encompassed also access to
the Upper House..
FAVOURABLE CONSTRUCTION The
final petition which the speaker makes is
that the most favourable construction
should be placed upon all the House's
proceedings
PRIVILEGE WITH RESPECT TO THE
CONSTITUTION OF THE HOUSE It is a
privilege of the House of Commons to
provide for its own proper constitution as
established by law. The origins of this
privilege are to be found in the sixteenth
century."
In the UP Assembly Case, while dealing with questions
relating to Powers, Privileges and Immunities of State
Legislatures, it was observed as under:-
"69 Parliamentary privilege,
according to May, is the sum of the
peculiar rights enjoyed by each House
collectively as a constituent part of the
High Court of Parliament, and by
members of each House individually,
without which they could not discharge
their functions, and which exceed those
possessed by other bodies or individuals.
Thus privilege, though part of the law of
the land, is to a certain extent an
exemption from the ordinary law. The
particular privileges of the House of
Commons have been defined as "the sum
of the fundamental rights of the House
and of its individual Members as against
the prerogatives of the Crown, the
authority of the ordinary courts of law
and the special rights of the House of
Lords". There is a distinction between
privilege and function, though it is not
always apparent. On the whole, however,
it is more convenient to reserve the term
"privilege" to certain fundamental rights
of each House which are generally
accepted as necessary for the exercise of
its constitutional functions. The
distinctive mark of a privilege is its
ancillary character. The privileges of
Parliament are rights which are
"absolutely necessity for the due
execution of its powers". They are enjoyed
by individual Members, because the
House cannot perform its functions
without unimpeded use of the services of
its Members; and by each House for the
protection of its Members and the
vindication of its own authority and
dignity [May's Parliamentary Practice, pp.
42-43]."
According to May, origin of the modern Parliament in
England consisted in its judicial functions. It was Maitland
who was the first to point out in his introduction to the
Parliament Roll of 1305 that Parliament at that time was the
King's "Great Court" and thus, inter alia, the highest Court of
royal justice. It is now generally accepted that a strong
judicial streak in the character of the earliest Parliament was
noticeable throughout the earlier period of English history,
reflected by the fact that dispensation of justice was one of its
chief functions in the eyes of the subjects of the realm, aside
from the political and economic business.
Out of the two chambers of Parliament of United
Kingdom, the House of Lords has continued till the present
times as the Court of Judicature, as part of which function it
has the power to sit as a Court during prorogation and
dissolution. The final appellate jurisdiction vests in the Lords
and, in matters of impeachment, the Lords are the sole judges
of the crime in proceedings that involve the other chamber, the
House of Commons, as the accusers or advocates.
While the House of Lords would claim its powers and
privileges on the basis of theory of inheritance and Divine
Right of Kings, the House of Commons was constrained to
wage a fierce struggle against the prerogatives of the Crown
and of the House of Lords to assert and claim its rightful
place. It was almost a fight for its existence in which the
House of Commons was pitted against not only the Crown and
the House of Lords, but also the judicature which was
regarded as a creature of the King and which wing was
subordinate to the House of Lords that happened to be the
main opponent of the House of Commons.
The dust raised by the bitter struggle waged by the
House of Commons to assert its privileges finally settled when
equilibrium was reached in the 19th century with limits of
privileges being prescribed and accepted by Parliament, the
Crown and the courts in England. The position that emerged
against this backdrop has been noticed by this court in the
following words in the UP Assembly Case:-
"The two Houses are thus of equal
authority in the administration of a
common body of privileges. Each House,
as a constituent part of Parliament,
exercised its own privileges independently
of the other. They are enjoyed, however,
not by any separate right peculiar to
each, but solely by virtue of the law and
custom of Parliament. Generally
speaking, all privileges properly so called,
appertain equally to both Houses. They
are declared and expounded by each
House; and breaches of privilege are
adjudged and censured by each; but
essentially, it is still the law of Parliament
that is thus administered. It is significant
that although either House may expound
the law of Parliament, and vindicate its
own privileges, it is agreed that no new
privilege can be created. This position
emerged as a result of the historic
resolution passed by the House of Lords
in 1704. This resolution declared "that
neither House of Parliament have power,
by any vote or declaration, to create to
themselves new privileges, not warranted
by the known laws and customs of
Parliament". This resolution was
communicated by the House of Lords to
Commons and assented to by them
[May's Parliamentary Practice, p.47].
Thus, there can be no doubt that by its
resolutions, the House of Commons
cannot add to the list of its privileges and
powers."
The resolution of 1704, mentioned in the passage
extracted above, had been adopted by the House of Lords in
answer to an earlier resolution passed by the House of
Commons declaring its intent to treat the conduct of any
person in moving the court for relief in matters mentioned by
the resolution of the House of Commons as amounting to its
contempt.
The main privileges which are claimed by the House of
Commons were noticed at length at page 462 of the judgment
in the UP Assembly Case, as under:-
"72...Freedom of speech is a
privilege essential to every free council or
legislature, and that is claimed by both
the Houses as a basic privilege. This
privilege was from 1541 included by
established practice in the petition of the
Commons to the King at the
commencement of the Parliament. It is
remarkable that notwithstanding the
repeated recognition of this privilege, the
Crown and the Commons were not
always agreed upon its limits. This
privilege received final statutory
recognition after the Revolution of 1688.
By the 9th Article of the Bill of Rights, it
was declared "that the freedom of speech,
and debates or proceedings in
Parliament, ought not to be impeached or
questioned in any court or place out of
Parliament [May's Parliamentary Practice,
p. 52]".
73. Amongst the other privileges are: the
right to exclude strangers, the right to
control publication of debates and
proceedings, the right to exclusive
cognizance of proceedings in Parliament,
the right of each House to be the sole
judge of the lawfulness of its own
proceedings, and the right implied to
punish its own Members for their
conduct in Parliament [ibid, p. 52-53].
74. Besides these privileges, both Houses
of Parliament were possessed of the
privilege of freedom from arrest or
molestation, and from being impleaded,
which was claimed by the Commons on
ground of prescription"
The privilege of freedom of speech under Article 9 of the
Bill of Rights includes the freedom of the member to state
whatever he thinks fit in debate, howsoever offensive it may be
to the feelings, or injurious to the character, of individuals. He
is protected by his privilege from any action for libel, as well as
from any question or molestation [May's Parliamentary
Practice, 23rd edn., pp 96-97]. The privilege of freedom from
arrest has never been allowed to interfere with the
administration of criminal justice or emergency legislation.
In early days of its struggle the House of Commons would
assert a claim to all kinds of privileges for itself and its
members but in the course of time many of such privileges
either fell into disuse or faded out of existence or came to be
controlled by legislation. Examples in this context can be
given of the privilege of freedom from being impleaded,
limitation put by the Parliamentary Privilege Act, 1770 on the
freedom from arrest and the privilege of exemption from jury
service. What is important for purposes at hand is that the
major privileges properly described as privileges essential for
the efficient functioning of the House still continue in force.
As per May's Parliamentary Practice [23rd edn., pp. 128]
contempt came to be defined as "any act or omission which
obstructs or impedes either House of Parliament in the
performance of its functions or which obstructs or impedes
any member or officer of such House in the discharge of his
duty, or which has a tendency, directly or indirectly, to
produce such results even though there is no precedent of the
offence".
Power to punish and commit for contempt is one of the
privileges asserted by both Houses of Parliament in United
Kingdom. In the context of power to punish for contempt, this
court found in the UP Assembly Case (at page 461) as under:-
"..Since the decision of the Privy
Council in Kielley v. Carson [4 Moore P.C.
63] it has been held that this power is
inherent in the House of Lords and the
House of Commons, not as a body with
legislative functions, but as a descendant
of the High Court of Parliament and by
virtue of the lex et consuetudo parliamenti
[May's Parliamentary Practice, p.44].
Historically, as originally the weaker
body, the Commons had a fiercer and
more prolonged struggle for the assertion
of their own privileges, not only against
the Crown and the courts, but also
against the Lords. Thus the concept of
privilege which originated in the special
protection against the King began to be
claimed by the Commons as customary
rights, and some of these claims in the
course of repeated efforts to assert them
hardened into legally recognised
"privileges".
As has been noticed earlier, the historic origin of the
doctrine of privileges of the legislature in England is founded
on its judicial functions. The House of Lords has always
claimed itself to be a Court of Record and as such having the
inherent authority and power not only to imprison but also to
impose fines in matters of contempt. But then, its position as
a Court of Record does not inure, according to Lord Kenyon,
"when exercising a legislative capacity". According to May's
Parliamentary practice, the House of Commons at one point of
time in the history had also claimed to be a Court of Record,
but this position has never been finally determined. Be that
as it may, as observed in the UP Assembly Case (at pp. 465-
466), on the authority of May's Parliamentary Practice, the
genesis of the power of commitment, "the key stone of
Parliamentary privileges", as possessed by the House of
Commons, arises out of "the medieval inability to conceive of a
constitutional authority otherwise than as in some sense a
court of justice".
The medieval concept of Parliament in England primarily
as a court of justice, the 'High Court of Parliament' gave rise to
the firm belief that in order to defend the dignity of Parliament
against disrespect and affronts, there must vest in it a power
to commit, without which the privileges of Parliament would
not exist. On the penal jurisdiction of the House arising from
this, May in his "Parliamentary Practice" [23rd edn. pp. 91-92]
would observe as follows:-
"The Lords derived an independent power
to punish from their original membership
of the Curia Regis. Immemorial
constitutional antiquity was not similarly
available to the Commons, and indeed its
possession of penal jurisdiction was
challenged on this ground as late as the
nineteenth century, and has been
defended by arguments which confused
legislative with judicial jurisdiction. The
difficulties the Commons experienced in
proving its case to be a court of record
(see p 161) an issue never determined
at law were connected with these
problems. Yet whatever the legal or
constitutional niceties, in practice the
House on many occasions in the
sixteenth and seventeenth centuries
exercised its power to impose fines (see p
161) and imprison offenders. These
offenders might include Members of the
House itself or non-members, the latter
comprising sheriffs, magistrates and even
judges of the superior courts."
Almost to ensure that there be not any doubts
entertained in this behalf in any quarter, while asserting its
right to commit offenders on the same terms as the House of
Lords, it was said in the House of Commons in 1593 as
under:-
"This court for its dignity and highness
hath privilege, as all other courts have.
And, as it is above all other courts, so it
hath privilege above all other courts; and
as it hath privilege and jurisdiction too,
so hath it also Coercion and Compulsion;
otherwise the jurisdiction is nothing in a
court, if it hath no Coercion."
The House of Lords would eventually concede this power
in favour of House of Commons at the conference between the
two Houses as noticed in the case of Ashby vs. White [L.J.
(1701-05), 714]. This has ever since been consistently
recognized even by the courts of law in England. The origin of
this power of commitment for contempt, judicial in its nature,
is thus traceable to the conception of Parliament as primarily
a court of justice the "High Court of Parliament".
In matters concerning import of powers and privileges of
the House of Commons unto the legislature in India, while
examining the issue, albeit from the limited concern of the
availability to State legislature under Article 194(3) of the
power of commitment for contempt, this court in the UP
Assembly Case had administered a note of caution that must
hold good even for purposes at hand. At page 591 of the
judgment, it was observed thus:-
"121. In this connection, it is essential to
bear in mind the fact that the status, of a
superior Court of Record which was
accorded to the House of Commons, is
based on historical facts to which we
have already referred. It is a fact of
English history that the Parliament was
discharging judicial functions in its early
career. It is a fact of both historical and
constitutional history in England that the
House of Lords still continues to be the
highest Court of law in the country. It is a
fact of constitutional history even today
that both the Houses possess powers of
impeachment and attainder. It is obvious,
we think, that these historical facts
cannot be introduced in India by any
legal fiction. Appropriate legislative
provisions do occasionally introduce legal
fictions, but there is a limit to the power
of law to introduce such fictions. Law can
introduce fictions as to legal rights and
obligations and as to the retrospective
operation of provisions made in that
behalf, but legal fiction can hardly
introduce historical facts from one
country to another."
(Emphasis supplied)
In the UP Assembly Case, it was settled by this court
that a broad claim that all the powers enjoyed by the House of
Commons at the commencement of the Constitution of India
vest in an Indian legislature cannot be accepted in its entirety
because there are some powers which cannot obviously be so
claimed. In this context, the following observations appearing
at page 448 of the judgment should suffice:-
".Take the privilege of freedom of
access which is exercised by the House of
Commons as a body and through its
Speaker "to have at all times the right to
petition, counsel, or remonstrate with
their Sovereign through their chosen
representative and have a favourable
construction placed on his words was
justly regarded by the Commons as
fundamental privilege" [Sir Eskine May's
Parliamentary Practice (16th ed.) p.86]. It
is hardly necessary to point out that the
House cannot claim this privilege.
Similarly, the privilege to pass acts of
attainder and impeachments cannot be
claimed by the House. The House of
Commons also claims the privilege in
regard to its own Constitution. This
privilege is expressed in three ways, first
by the order of new writs to fill vacancies
that arise in the Commons in the course
of a parliament; secondly, by the trial of
controverted elections; and thirdly, by
determining the qualifications of its
members in cases of doubt [ibid, p. 175].
This privilege again, admittedly, cannot
be claimed by the House. Therefore, it
would not be correct to say that all
powers and privileges which were
possessed by the House of Commons at
the relevant time can be claimed by the
House."
The historical background of parliamentary privileges in
India is to be understood with reference to history of England
and the Constitutional history of the Constitution of India.
Indian Constitutional History
The East India Company Act, 1784 formed the basis of
the Indian Constitution till 1858. It created Commissioners
for the affairs of India to be appointed at home by the King.
This was followed by the Charter Act, 1833 that provided for a
legislative authority. In this dispensation, the meetings of the
Governor-General's Council for law-making were distinguished
from the meetings of the Council for discharging other, i.e.,
executive functions. Macaulay, as Law Member of the
Governor General Council, against the backdrop of the
insistence by the Executive Councilor of the Governor
General's Council that all the drafts of laws should be fully
considered by the Executive Council before they were laid
before the Legislative council for final passage, in his speech of
13th June, 1835, described the deliberative chamber as the
"supreme Legislative Council", and said "when the Parliament
gave us the power of legislating it gave us also, by necessary
implication, all the powers without which it is impossible to
legislate well", referring in this context particularly to power
"to correspond directly with the subordinate Governments";
"directly call for information from any public functionary"; and
"require the attendance of the military or financial secretary".
An expansion of the Legislative Council of India was provided
by the Charter Act of 1853, followed by certain further
additions by the Acts of 1854 and 1861.
The period 1915-1950 indeed marks a definite advance in
the history of the development of parliamentary privilege in
India. By the Government of India Act 1915, the entire
position of Parliamentary privilege that obtained before that
time was consolidated. The Government of India Act, 1915,
provided in Section 63 that the Indian Legislature shall consist
of the Governor-General and "two chambers, namely, the
Council of State and the Legislative Assembly".
Section 67 of the Act related to the business and
proceedings of the Indian Legislature. Sub-Section (1) enabled
provision to be made by rules, inter alia, "for regulating the
course of business and the preservation of order in the
chambers of the Indian legislature"; "as to the persons to
preside at the meetings of the Legislative Assembly in the
absence of the president and the deputy president"; for
"quorum"; and "for prohibiting or regulating the asking of
questions on, and the discussion of any subject specified in
the rules". Sub-Section (6) allowed "Standing orders" to be
made providing for the conduct of business and the procedure,
to be followed in either chamber of the Indian legislature in so
far as these matters are not provided for by rules made under
this Act. Sub-Section (7) declared "Subject to the rules and
standing orders affecting the chamber" that there shall be
"freedom of speech in both chambers of the Indian legislature";
and that no person shall "be liable to any proceedings in any
court by reason of his speech or vote in either chamber, or by
reason of anything contained in any official report of the
proceedings of either chamber".
The Government of India Act 1919 brought about
material changes in the Government of India Act 1915. The
legislature now ceased to be part of the Executive and stood
on its own. It was no longer an expanded Governor-General's
Council with additional members. The Governor General and
the Executive Councilor ceased to be ex-officio members of the
Legislative Council. The bicameral Indian Legislature would
consist of both nominated and elected members.
Section 65 of the Government of India Act 1915, as
amended in 1919, provided for the powers of the Indian
Legislature, subject to the specific prohibition that it shall not
have the powers, inter alia, to make laws "unless expressly so
authorized by Act of Parliament (of United Kingdom)", amongst
others, "affecting the authority of Parliament, or any part of
the unwritten laws or constitution of the United Kingdom of
Great Britain and Ireland whereon may depend in any degree
the allegiance of any persons to the Crown of the United
Kingdom, or affecting the sovereignty or domination of the
Crown over any part of British India". The powers of legislation
of the local legislatures were defined more or less similarly in
Section 80 A.
'Parliamentary Privilege in India' by Prititosh Roy (1991),
in Chapter-4, titled 'Historical Background of Parliamentary
Privilege in India (1915-1950)' mentions, at page 53, about the
Report dated 3rd December 1924 of the Reforms Inquiry
Committee under the chairmanship of Sir Alexander
Muddiman (the Home Member), which included as members
Sir Tej Bahadur Sapru and Mr. Jinnah, which had examined
the issue of powers of the Indian Legislature and gave vent to
the hope and aspiration of bringing legislatures in India "at
par with the House of Commons" and that "eventually no
doubt similar provision will be made in the Constitution of
British India". On the basis of the Report, the Indian
Legislature passed the Legislative Members Exemption Act,
1925 (Act XXIII of 1925) which granted two new parliamentary
privileges; viz. the privilege of exemption of the legislator from
jury service and the privilege of freedom from arrest. Theses
new privileges would be reflected in the Code of Criminal
procedure 1898 by incorporation in Section 323 and insertion
of Section 135A respectively.
Prititosh Roy mentions in "Parliamentary Privilege in
India" [p-55], the Legislative Assembly created under
Government of India Act, 1919 witnessed a number of
instances wherein the privileges of a legislative body were
asserted. These include the adjournment motion moved on
21st January 1927 by Pt. Motilal Nehru to discuss the conduct
of the Government in detaining Shri Satyendra Chandra Mitra,
an elected member of the House, on the ground it
tantamounts to a breach of the Privileges of the House and the
adjournment motion in the Legislative Assembly moved by
Shri Gaya Prasad Singh on 4th September, 1928 against the
Editor of the Times of India having made an attack on the
President of the House, though disallowed but with the
President having held that it is the inherent right of any
assembly to defend itself against outside attacks and it is
perfectly open in a proper cause for the House to table a
substantive motion and pass a vote of censure or
condemnation on the attacker.
Prititosh Roy also mentions at Page 56 an interesting
episode involving the Indian Press Act, 1931 that was enacted
on 13th February, 1932. In its context, a question arose before
the Legislative Assembly under Government of India Act, 1919
regarding breach of the privileges upon a notice of motion
having appeared in the Press given by a member.
Acknowledging that there was a convention in the House of
Commons against release by a member to the Press for
publication questions for resolutions before they are admitted
by the chair and that breach thereof was treated as a serious
breach of the privilege of the House of Commons which had
ample powers to deal with the member in question, the
President of Indian Legislative Assembly noted that
"unfortunately neither this House nor the Spokesmen have
such powers" and commended that "this well established
convention, which is observed in the House of Commons
should also be observed as one of the conventions of this
House".
Prititosh Roy refers at Pages 58-59 to Debates of Indian
Legislative Assembly [22nd January, 1935, p. 81 ff], which
quote yet another incident that needs to be taken note of. Shri
N.C. Bardaloi had raised an issue about the conduct of the
Government in preventing Mr. Sarat Chandra Bose, an elected
Member of the House, from attending to his duties as Member
and thereby seriously infringing the privileges of the House.
Sir N.N. Sircar, the then Law Member of the Government of
India replied stating that the House had no power to punish
for its breach of privilege.
The Government of India Act, 1935 came into force on 1st
April, 1937 and was operative till 14th August, 1947. Sections
28 and 71 of the Government of India Act, 1935 dealt with the
subject of Privileges etc. of members of Federal Legislature and
Provincial Legislatures respectively.
The provision in Sub-Section (1) of Section 71 extended
the freedom of speech and immunity to speech or vote even in
the Committees of the Legislature and also covering
publication under the authority of a Chamber of the
Legislature of the House. Sub-Section (1) of Section 71, inter
alia, declared that "Subject to the provisions of this Act and to
rules and standing orders regulating the procedure of the
Legislature there shall be freedom of speech in every Provincial
Legislature" and that every member shall be entitled to
immunity from "any proceedings in any court in respect of
anything said or any vote given by him in the Legislature or
any committee thereof".
Sub-Section (2) of Section 71 of the Government of India
Act, 1935, for the first time, empowered the Provincial
Legislature to pass an Act to define the other privileges of the
members and, pending such legislation, the pre-existing
privileges were confirmed. Some of the Provincial Legislatures
did legislate or attempt to legislate on this subject. Sub-
Section (2) of Section 71 was on lines similar to present Article
194 (3). It read as follows:-
"71.(2) In other respects the privileges of
members of a Chamber of a Provincial
legislature shall be such as may from
time to time be defined by Act of the
Provincial Legislature, and, until so
defined, shall be such as were
immediately before the commencement of
this Part of this Act enjoyed by members
of the Legislative Council of the Province."
Sub-Section (3) of Section 71 watered down the powers
and privileges of Indian Legislatures under Government of
India Act, 1935. It ran as follows:-
"71.(3) Nothing in any existing Indian
Law, and, notwithstanding anything in
the foregoing provisions of this Section,
nothing in this Act, shall be construed as
conferring, or empowering any
Legislature to confer, on a chamber
thereof or on both Chambers sitting
together or any Committee or officer of
the Legislature, the status of a court, or
any punitive or disciplinary powers other
than the power to remove or exclude
persons infringing the rules or standing
orders, or otherwise behaving in a
disorderly manner."
Clearly, the intendment was to restrict the powers and
privileges of Indian Legislatures to remedial action for
unobstructed functioning, severely restricting, or rather
forbidding, the exercise of punitive powers by a House of
Legislature.
Similar provisions, mutatis mutandis, were made for the
Central Legislature, called the Federal Legislature, under
Section 28 which, however, never came into force since Part II
of the Act of 1935 concerning the Federation of India never
became operative. Sub-Section (1) of Section 28 of the
Government of India Act, 1935, inter alia, declared that there
shall be "freedom of speech" in the Federal Legislature
"Subject to the provisions of this Act and to the rules and
standing orders regulating the procedure", and that "no
member of the legislature shall be liable to any proceedings in
any court in respect of anything said or any vote given by him
in the Legislature or any Committee thereof".
Sub-Section (2) of Section 28 of the Government of India
Act, 1935, for the first time, empowered the Federal
Legislature to pass an Act to define the other privileges of the
members and again, pending such legislation, the pre-existing
privileges were confirmed. Its language has a resonance of
what is employed in present Article 105 (3). It stated as
follows:-
"28. (2). In other respects, the privileges
of members of the Chambers shall be
such as may from time to time be defined
by Act of the Federal Legislature, and,
until so defined, shall be such as were
immediately before the establishment of
the Federation enjoyed by members of the
Indian legislature."
Sub-Section (3) of Section 28 was designed to restrict the
powers and privileges of Indian Federal Legislature to remedial
action for unobstructed functioning. While preventing the
legislature from exercising the powers of the Court for any
punitive or disciplinary powers, it allowed the limited
jurisdiction to remove or exclude the person infringing the
rules or standing orders or otherwise behaving in a disorderly
manner. It read thus:-
"28. (3). Nothing in any existing Indian
Act, and, notwithstanding anything in the
foregoing provisions of this section,
nothing in this act, shall be construed as
conferring, or empowering the Federal
legislature to confer, on either Chamber
or on both Chambers sitting together, or
on any committee or officer of the
Legislature, the status of the Court, or
any punitive or disciplinary powers other
than a power to remove or exclude
persons infringing the rules or standing
orders, or otherwise behaving in a
disorderly manner."
It is also necessary to take note of sub-Section (4) of
section 28 of Government of India Act, 1935 since it made the
intention clear that for punitive action in certain matters the
Legislature would have to go before a court. It provided as
follows:-
"28. (3). Provision may be made by an Act
of the Federal Legislature for the
punishment, on conviction before a court,
of persons who refuse to give evidence or
produce documents before a committee of
a Chamber when duly required by the
Chairman of the Committee to do so.
Provided that any such Act shall have
effect subject to such rules for regulating
the attendance before such committees of
persons who are, or have been, in the
service of the Crown in India, and
safeguarding confidential matter from
disclosure as may be made by the
Governor General exercising his
individual judgment."
Prititosh Roy at Page 71 mentions that the above
mentioned provisions were found by the Legislatures to be
ineffective and inadequate for upholding the dignity and
prestige of the legislature in India and for safeguarding the
right and privileges of Members and officers thereof. This
became subject matter of grievance conveyed in a
Memorandum by the President of the Indian Legislative
Assembly to the Reforms Commissioner of the Government of
India on 29th January, 1938, raising a demand that the
Central as well as provincial legislature in India should have
among other privileges also "the power to proceed in contempt
like the High Court and inflict punishment on any person who
violates the privileges of the House and of the members
thereof, or tries to bring the House or the President or the
Speaker into contempt" and for a request to be made to the
Government of India to take immediate steps to get Sections
28 and 71 of the Government of India Act, 1935 amended so
as to secure for the Central and Provincial Legislatures and
the officers and members thereof "all the powers and privileges
which are held and enjoyed by the Speaker and members of
the British House of Commons".
The Indian Independence Act 1947, which brought
freedom from alien rule, made India a full fledged Dominion of
the Commonwealth of Nations. The Act conferred, through
Section 6(2), sovereign legislative power on the Indian
dominion abrogating the Imperial doctrine of Repugnancy in
the following terms:-
"No law and no provision of any law made
by the Legislature of either of the new
Dominions (India and Pakistan) shall be
void or inoperative on the ground that it
is repugnant to the law of England, or to
the provisions of this or any existing or
future Act of Parliament of the United
Kingdom, or to any order, rule or
regulation made under any such Act."
The Governor General of India issued an Adaptation
Order by which, amongst others, the provisions of Section 28
of the Government of India Act, 1935, excepting the sub-
Sections (3) and (4), were brought into force for the first time
for purposes of dominion legislature,. As a result, aside from
the "freedom of speech in the legislature", the law provided
that "in other respects the privileges of the members of the
domain legislature" shall be such as may from time to time be
defined by dominion legislature and, until so defined, should
be such as were immediately before the establishment of the
dominion enjoyed by the members of the Indian legislature
The omission of sub-Section (3) and sub-Section (4) of Section
28 indicated that the restrictions on the exercise of punitive
and disciplinary powers by the legislature were being removed.
As a result of the omission of sub-Sections (3) & (4) of
Section 28 by the Order, the Central legislature became
entitled to pass any Act on the subject of privileges under sub-
Section (2) without any restriction and assume punitive and
disciplinary powers similar to those invested in the House of
Commons in England. But then, the Central Legislature did
not pass any law on privileges in exercise of the enabling
powers under Section 28 (2) of Government of India Act, 1935,
as adapted after Independence.
Dr. Ambedker, the Chairman of the Drafting Committee
of the Constitution, while mooting for the Parliamentary
system similar to the one obtaining in England noted, in the
course of debates in the Constituent Assembly, that in the
latter jurisdiction, the parliamentary system relies on the daily
assessment of responsibility of the executive by members of
parliament, through questions, resolutions, no-confidence
motions and debates and periodic assessment done by the
electorate at the time of election; unlike the one in the United
States of America a system far more effective than the periodic
assessment and far more necessary in a country like India.
India thus adopted parliamentary Constitutional traditions.
The concept of parliamentary privileges in India in its
modern form is indeed one of graft, imported from England.
The House of Commons having been accepted by the
Constituent Assembly as the model of the legislature, the
privileges of that House were transplanted into the draft
Constitution through Articles 105 and 194.
Article 85 of the Draft Constitution, which corresponds to
present Article 105, contained the following provision with
respect to parliamentary privileges:-
"85.(1) Subject to the rules and standing
orders regulating the procedure of
Parliament, there shall be freedom of
speech in Parliament.
(2) No member of Parliament shall be
liable to any proceedings in any court in
respect of any thing said or any vote
given by him in Parliament or any
committee thereof, and no person shall
be so liable in respect of the publication
by or under the authority of either House
of Parliament of any report, paper, votes
or proceedings.
(3) In other respect, the privileges and
immunities of member of the Houses
shall be such as may from time to time be
defined by Parliament by law, and until
so defined, of Commons of the Parliament
of the United Kingdom at the
commencement of this Constitution
(4) The provisions of clause (1), (2), and
(3) shall apply in relation to persons who
by virtue of this Constitution have the
right to speak in, and otherwise take part
in the proceedings of, a House of
Parliament as they apply in relation to
members of Parliament."
The reference to the House of Commons of the Parliament
of the United Kingdom provoked comment and intense debate.
As is seen from the Constituent Assembly Debates (Volume 8
of 19.5.1949 page 143-149), Shri H.V. Kamath suggested that
draft article 85 should truly rely upon our own precedents, our
own traditions and no importation must be attempted. While
commending reference to be made instead to privileges "as
were enjoyed by the members of the Dominion Legislature of
India immediately before commencement" of the Constitution,
he spoke thus:-
"Sir, my knowledge of the various
Constitutions is not as vast or as
profound as that of Dr. Ambedkar, but
relying on my meager knowledge of these
constitutions, I venture to state that this
is the first instance of its kind where
reference is made in the Constitution of a
free country to certain provisions
obtaining in the constitution of another
State. I see no valid reason why this
should be done. It may be that the rights
and privileges which we are going to
confer upon the Members of Parliament
of free India will be identical with, or
more or less similar to, those enjoyed by
the Members of the House of Commons in
the United Kingdom. But may I ask, Sir,
in all humility "Is it necessary or is it
desirable, when we are drafting our own
constitution that we should lay down
explicitly in an article that the provisions
as regards this matter will be like those of
the House of Commons in England?"
It may be argued in support of this
proposition that there is nothing
derogatory to the dignity of our
Constitution or of our State in making
reference to the United Kingdom. It may
be further reinforced by the argument
that now we have declared India as a full
member of the Commonwealth, certainly
there should be no objection, or any sort
of compunction in referring to the House
of Commons in England. But may I
suggest for the serious consideration of
the House as to whether it adds it may
not be derogatory, or detract from the
dignity of the Constitution but does it
add to the dignity of the Constitution?
We say that such and such thing should
be what it is in the United Kingdom or in
America. Will it not be far better, far
happier for us to rely upon our own
precedents, or our own traditions here in
India than to import something from
elsewhere and incorporate it by reference
in the Constitution? Is it not sufficient to
say that the rights and privileges and
immunities of Members shall be such as
have been enjoyed by the Members of the
Constituent Assembly or Dominion
Legislature just before the
commencement of this Constitution?
Personally, I think, Sir, this would be far
better. I venture to hope that my
honourable Friends in this House will be
inclined to the same view that instead of
quoting or citing the example of the
United Kingdom it would be far better for
us to rely upon the tradition we have
built up here. Surely, nobody will
dispute the fact that the privileges and
immunities enjoyed by us here today are
in no way inferior to, or worse than, those
enjoyed by members of the House of
Commons in the United Kingdom.
As a matter of fact, I think most of
us do not know what are the privileges of
the members of the House of Commons.
We know very well what our privileges at
present are. Therefore, Sir, it is far better
to build on our own solid ground, rather
than rely on the practices obtaining in
other countries. .."
Similar views were expressed in the course of the debate,
amongst others, by Shri Jaspat Roy Kapoor, Prof. K.T. Shah,
Prof. Shibban Lal Saxena, Mr. Narizuddin Ahmad, Dr. P.S.
Deshmukh. Prof. K.T. Shah had also proposed insertion of
clause (5) in draft Article 85 in the following form:-
"In all matters of the privileges of the
House of Parliament or of members
thereof the House concerned shall be the
sole Judge and any order, decree or
sentence duly passed by that House shall
be enforced by the officers or under the
authority thereof".
Sir Alladi Krishnaswamy Iyer, while replying to the
criticism, stated thus:-
"Sir, in regard to the article as it stands,
two objections have been raised, one
based upon sentiment and the other
upon the advisability of making a
reference to the privileges of a House in
another State with which the average
citizen or the members of Parliament here
may not be acquainted with. In the first
place, so far as the question of sentiment
is concerned, I might share it to some
extent, but it is also necessary to
appreciate it from the practical point of
view. It is common knowledge that the
widest privileges are exercised by
members of Parliament in England. If the
privileges are confined to the existing
privileges of legislatures in India as at
present constituted, the result will be
that a person cannot be punished for
contempt of the House. The actual
question arose in Calcutta as to whether
a person can be punished for contempt of
the provincial legislature or other
legislatures in this country. It has been
held that there is no power to punish for
contempt any person who is guilty of
contempt of the provincial or even the
Central Legislature, whereas the
Parliament in England has the inherent
right to punish for contempt. The
question arose in the Dominions and in
the Colonies and it has been held that by
reason of the wide wording in the
Australia Commonwealth Act as well as
in the Canadian Act, the Parliament in
both places have powers similar to the
powers possessed by the Parliament in
England and therefore have the right to
punish for contempt. Are you going to
deny to yourself that power? That is the
question.
I will deal with the second objection.
If you have the time and if you have the
leisure to formulate all the privileges in a
compendious form, it will be well and
good. I believe a Committee constituted
by the Speaker on the legislative side
found it very difficult to formulate all the
privileges, unless they went in detail into
the whole working of parliamentary
institutions in England and the time was
not sufficient before the legislature for
that purpose and accordingly the
Committee was not able to give any
effective advice to the Speaker in regard
to this matter. I speak subject to
correction because I was present at one
stage and was not present at a later
stage. Under these circumstances I
submit there is absolutely no question of
infra dig. We are having the English
language. We are having our Constitution
in the English language side by side with
Hindi for the time being. Why object only
to reference to the privileges in England?
The other point is that there is
nothing to prevent the Parliament from
setting up the proper machinery for
formulating privileges. The article leaves
wide scope for it. "In other respects, the
privileges and immunities of members of
the Houses shall be such as may from
time to time be defined by Parliament by
law and, until so defined, shall be such
as are enjoyed by the members of the
House of Commons of the Parliament of
the United Kingdom at the
commencement of this Constitution."
That is all what the article says. It does
not in any way fetter your discretion. You
may enlarge the privileges, you may
curtail the privileges, you may have a
different kind of privileges. You may start
on your own journey without reference to
the Parliament of Great Britain. There is
nothing to fetter the discretion of the
future Parliament of India. Only as a
temporary measure, the privileges of the
House of Commons are made applicable
to this House. Far from it being infra dig,
it subordinates the reference to privileges
obtained by the members of Parliament in
England to the privileges which may be
conferred by this Parliament by its own
enactments. Therefore, there is no infra
dig in the wording of clause (3). This
practice has been followed in Australia, in
Canada and in other Dominions with
advantage and it has secured complete
freedom of speech and also the
omnipotence of the House in every
respect. Therefore we need not fight shy
of borrowing to this extent, when we are
borrowing the English language and
when we are using constitutional
expressions which are common to
England. You are saying that it will be a
badge of slavery, a badge of serfdom, if we
say that the privileges shall be the same
as those enjoyed by the members of the
House of Commons. It is far from that.
Today the Parliament of the United
Kingdom is exercising sway over Great
Britain, over the Dominions and others.
To say that you are as good as Great
Britain is not a badge of inferiority but an
assertion of your own self-respect and
also of the omnipotence of your
Parliament. Therefore, I submit, Sir, there
is absolutely no force in the objection
made as to the reference to the British
Parliament. Under these circumstances,
far from this article being framed in a
spirit of servility or slavery or subjection
to Britain, it is framed in a spirit of self-
assertion and an assertion that our
country and our Parliament are as great
as the Parliament of Great Britain."
(Emphasis supplied)
Dr. Ambedkar when invited by the President to speak,
expressed satisfaction with the reply already given by Mr.
Alladi by saying "Mr. Alladi and others have already given the
reply, and I will be saying mostly the same thing, probably in a
different way".
The amendment moved by Prof. Shah was negatived by
the Constituent Assembly on 19th May 1948. After adoption of
a minor amendment, for including the Committees of the
Houses of Parliament, Draft Article 85 (present Article 105)
was adopted and added to the Constitution.
Article 169 of the Draft Constitution, which corresponds
to present Article 194, contained similar provision with respect
to privileges of the State Legislatures and came up for
discussion before the Constituent Assembly on 3rd June 1949.
The speeches made on the occasion are available at pages
578-584 of the Constituent Assembly Debates (Volume 8).
Shri H.V. Kamath took exception in the following words:-
"Mr. President, I shall, by your leave, say
a few words with respect to clause (3) of
this article. I do not propose to repeat
what I said on an earlier occasion when
we were discussing the corresponding
clause relating to the privileges of
members of the Central Parliament. But
I should like to invite the attention of Dr.
Ambedkar and also of the House to the
reaction among the people as well as in
the Press to the clause that we adopted
on that occasion. I have no doubt in my
own mind that Dr. Ambedkar keeps his
eyes and ears open, and cares to read
some of the important papers daily or at
least has them read to him daily. Soon
after this clause relating to the privileges
of members of Parliament was adopted in
this House, most of the Press was critical
of the way in which we had dealt with the
matter. .. Britain, as the
House is aware, has an unwritten
Constitution though this particular
measure may be written down in some
document. .. Many of the
Members here who spoke on that
occasion remarked that they did not
know what the privileges of the Members
of the House of Commons were,
.. They could have at least
drafted a schedule and incorporated it at
the end of the Constitution to show what
the privileges of the members of the
House of Commons were. That was not
done, and simply a clause was inserted
that the privileges obtaining there will
obtain here as well. Nobody knows what
those are, and a fortiori nobody knows
what privileges we will have. Our
Parliament presided over by Mr.
Mavalankar has adopted certain rules of
business and procedure tentatively, and
has also appointed or is shortly going to
appoint a Committee of Privileges. I
wonder why we could not have very
usefully and wisely adopted in our
Constitution something to this effect, that
whatever privileges we enjoy as members
of the Central Parliament will be enjoyed
by members of the Legislature in the
States. If at all there was a need for
reference to any other Constitution. I
think it was very unwise on the part of
the Drafting Committee to refer to an
unwritten Constitution, viz., the
Constitution of Great Britain. There is the
written Constitution of the U.S.A., and
some of us are proud of the fact that we
have borrowed very much from the
American Constitution. May I ask Dr.
Ambedkar whether the privileges of the
Members of the House of Commons in the
United Kingdom are in any way superior
to or better than the privileges of the
members of the House of Representatives
of the United States? If they are, I should
like to have enlightenment on that point.
If they are not, I think the reference to an
unwritten Constitution is not at all
desirable. ..If necessary let us put in
a schedule to our Constitution, and say
here in this article that the privileges and
rights are as specified in the Schedule at
the end. I would any day prefer a
definite schedule in the Constitution
showing what privileges shall be enjoyed
by members of the Legislatures and of
Parliament. This particular clause, to my
mind, should be recast. We have passed
one clause on an earlier occasion, but
that is no reason why we should
perpetrate the same mistake over and
over again. I would, therefore beg of Dr.
Ambedkar and his wise team of the
Drafting Committee and the House to
revise this clause, and if necessary, to go
back to the other clause, if they are
convinced of the wisdom of this course,
and revise that also accordingly, and
proceed in a saner and a wiser manner."
Dr. B.R. Ambedkar, Chairman of the Drafting Committee,
trying to allay doubts, answered the criticism in the following
manner:-
"Sir, not very long ago this very matter
was debated in this House, when we were
discussing the privileges of Parliament
and I thought that as the House had
accepted the article dealing with the
privileges and immunities of Parliament
no further debate would follow when we
were really reproducing the very same
provision with regard to the State
legislature. But as the debate has been
raised and as my Friend Mr. Kamath said
that even the press is agitated, I think it
is desirable that I should state what
exactly is the reason for the course
adopted by the Drafting Committee,
especially as when the debate took place
last time I did not intervene in order to
make the position clear.
I do not know how many Members
really have a conception of what is meant
by privilege. Now the privilege which we
think of fall into two different classes.
There are first of all, the privileges
belonging to individual members, such as
for instance freedom of speech, immunity
from arrest while discharging their duty.
But that is not the whole thing covered by
privilege.
XXXXXXXXXXXXXXX
.. It is not easy, as I said, to define
what are the acts and deeds which may
be deemed to bring Parliament into
disgrace. That would require a
considerable amount of discussion and
examination. That is one reason why we
did not think of enumerating these
privileges and immunities.
But there is not the slightest doubt
in my mind and I am sure also in the
mind of the Drafting Committee that
Parliament must have certain privileges,
when that Parliament would be so much
exposed to calumny, to unjustified
criticism that the Parliamentary
institution in this country might be
brought down to utter contempt and may
lose all the respect which parliamentary
institutions should have from the citizens
for whose benefit they operate.
I have referred to one difficulty why
it has not been possible to categorise.
Now I should mention some other
difficulties which we have felt.
It seems to me, if the proposition
was accepted that the Act itself should
enumerate the privileges of Parliament,
we would have to follow three courses.
One is to adopt them in the Constitution,
namely to set out in detail the privileges
and immunities of Parliament and its
members. I have very carefully gone over
May's Parliamentary Practice which is the
source book of knowledge with regard to
the immunities and privileges of
Parliament. I have gone over the index to
May's Parliamentary Practice and I have
noticed that practically 8 or 9 columns of
the index are devoted to the privileges
and the immunities of Parliament. So
that if you were to enact a complete code
of the privilege and immunities of
Parliament based upon what May has to
say on this subject, I have not the least
doubt in my mind that we will have to
add not less than twenty or twenty five
pages relating to immunities and
privileges of Parliament. I do not know
whether the Members of this House
would like to have such a large
categorical statement of privileges and
immunities of Parliament extending over
twenty or twenty five pages. That I think
is one reason why we did not adopt that
course.
The other course is to say, as has
been said in many places in the
Constitution, that Parliament may make
provision with regard to a particular
matter and until Parliament makes that
provision the existing position would
stand. That is the second course which
we could have adopted. We would have
said that Parliament may define the
privileges and immunities of the members
and of the body itself, and until that
happens the privileges existing on the
date on which the Constitution comes
into existence shall continue to operate.
But unfortunately for us, as honourable
Members will know, the 1935 Act
conferred no privileges and no
immunities on Parliament and its
members. All that it provided for was a
single provision that there shall be
freedom of speech and no member shall
be prosecuted for anything said in the
debate inside Parliament. Consequently
that course was not open, because the
existing Parliament or Legislative
Assembly possesses no privilege and no
immunity. Therefore we could not resort
to that course.
The third course open to us was the
one which we have followed, namely, that
the privileges of Parliament shall be the
privileges of the House of Commons. It
seems to me that except for the
sentimental objection to the reference to
the House of Commons I cannot see that
there is any substance in the argument
that has been advanced against the
course adopted by the Drafting
Committee. I therefore suggest that the
article has adopted the only possible way
of doing it and there is no other
alternative way open to us. That being so,
I suggest that this article be adopted in
the way in which we have drafted it."
(Emphasis supplied)
Dr. Ambedkar thus reiterated the justification given by
Mr. Alladi earlier, adding that the cataloguing of all powers
and privileges would have added to the volume of the
Constitution and that the course of adopting the powers and
privileges of the existing legislature under Government of India
Act, 1935 was inadvisable as that body had hardly any rights
available. The draft Article 169 (corresponding to present
Article 194) was adopted after the above mentioned
explanation and made part of the Constitution.
The Constitution thus adopted through Articles 105 and
194, for the Parliament and the State Legislatures respectively,
the same powers, privileges and immunities as vested at the
commencement of the Constitution in the House of Commons
of the Parliament of United Kingdom, until they were "defined
by law". From this perspective, the learned Additional Solicitor
General is not wrong when he says that the establishment of
privileges in India at par with those existing in the House of
Commons was not reflective of a colonial legacy but, it was an
assertion of the truly sovereign nature of the Indian
Parliament.
The above discussion shows that the reference to the
privileges of the House of Commons was justified on grounds
of self-assertion that free India and its Parliament are as great
as the Parliament of Great Britain. The replies above quoted
also show that the drafting committee was more concerned
about giving to the Parliament the widest privileges as
exercised by members of Parliament in England, including the
power to punish for contempt of the House. Full fledged
provisions listing out the powers and privileges was not
possible as there was not sufficient time or the leisure to
formulate all of them in a compendious form, as had been
found by a Committee constituted by the Speaker on the
legislative side. That is why a wide scope and unfettered
discretion was being left for the future Parliament of India to
set up the proper machinery for formulating privileges, which
could be enlarged or curtailed. The adoption of the powers and
privileges of the House of Commons was only as a temporary
measure, following the practice that had been followed in
Australia, in Canada and in other Dominions with advantage
to secure complete freedom of speech and also the
omnipotence of the legislature in every respect.
We would like to dispose of here itself a small argument
put across by learned Counsel for the Petitioners. The
argument is that the fact that the provisions of Article 105
were amended by the Constitution (44th Amendment) Act,
1978, thereby deleting the reference to the House of Commons
with effect from 20th June 1979, the subject of powers and
privileges are to be construed and pegged to that date and
further that since the House of Commons had not exercised
the power of expulsion after 1947, such power, even if it
existed in the House of Commons in 1947 has become
obsolete and non-existing. While arguing that such power has
not been inherited by the Indian Parliament, counsel would
also refer to certain recent developments in United Kingdom,
in particular Parliamentary Privilege-First Report, published
on 30.03.1999, in the wake of which a recommendation has
been made that "the Parliament's power to imprison person
whether member or not, who are in contempt of Parliament
should be abolished" and further that, "the power of the House
of Lords to suspend its members should be clarified and
confirmed".
We are not impressed with any of these arguments. The
amendment brought into force in 1979 does not turn the clock
ahead. The powers and privileges of the House of Commons of
the Parliament of the United Kingdom as on the date of
commencement of the Constitution of India were the powers
and privileges available to the Parliament before the
amendment and that is the package which continues to be
available post-amendment. Use of a particular power in 1947
would rather make it closer in terms of time to the crucial date
of commencement of Indian Constitution. Its disuse in later
period is of no consequence. In this view, we are also not
concerned with subsequent developments.
We are, thus, back at the issue of powers and privileges
of the House of Commons of the Parliament of the United
Kingdom as on the date of commencement of the Constitution
of India.
Powers, Privileges and Immunities - generally
As already noticed, Articles 105 and 194 employ almost
identical language. Article 194 was at the core of the
controversy in the UP Assembly Case.
Dealing with the provisions contained in Clause (1) of
Article 194, this Court observed thus:-
".. Clause (1) makes it clear that
the freedom of speech in the legislature of
every State which it prescribes, is subject
to the provisions of the Constitution, and
to the rules and standing orders,
regulating the procedure of the
legislature. While interpreting this clause,
it is necessary to emphasise that the
provisions of the Constitution to which
freedom of speech has been conferred on
the legislators, are not the general
provisions of the Constitution but only
such of them as relate to the regulation of
the procedure of the legislature. The rules
and standing orders may regulate the
procedure of the legislature and some of
the provisions of the Constitution may
also purport to regulate it; these are, for
instance, Articles 208 and 211. The
adjectival clause "regulating the
procedure of the legislature" governs both
the preceding clauses relating to "the
provisions of the Constitution" and "the
rules and standing orders". Therefore,
clause (1) confers on the legislators
specifically the right of freedom of speech
subject to the limitation prescribed by its
first part. It would thus appear that by
making this clause subject only to the
specified provisions of the Constitution,
the Constitution-makers wanted to make
it clear that they thought it necessary to
confer on the legislators freedom of
speech separately and, in a sense,
independently of Article 19(1)(a). If all
that the legislators were entitled to claim
was the freedom of speech and
expression enshrined in Article 19(1)(a), it
would have been unnecessary to confer
the same right specifically in the manner
adopted by Article 194(1); and so, it
would be legitimate to conclude that
Article 19(1)(a) is not one of the
provisions of the Constitution which
controls the first part of clause (1) of
Article 194."
(Emphasis supplied)
Taking note of Pandit Sharma (I), it was reiterated in the
UP Assembly Case that clause (1) of Article 194 no doubt
makes a substantive provision of the said clause subject to the
provisions of the Constitution; but in the context, those
provisions cannot take in Article 19(1)(a), because latter article
does not purport to regulate the procedure of the legislature
and it is only such provisions of the Constitution which
regulate the procedure of the legislature which are included in
the first part of Article 194(1)
On the provisions of clause (2) of Article 194, this is what
the Court found:-
"It is plain that the Constitution-makers
attached so much importance to the
necessity of absolute freedom in debates
within the legislative chambers that they
thought it necessary to confer complete
immunity on the legislators from any
action in any court in respect of their
speeches in the legislative chambers in
the wide terms prescribed by clause (2).
Thus, clause (1) confers freedom of
speech on the legislators within the
legislative chamber and clause (2) makes
it plain that the freedom is literally
absolute and unfettered."
(Emphasis supplied)
In the context of the all important clause (3) of Article
194, the Court observed thus:-
" The Constitution-makers
must have thought that the legislatures
will take some time to make laws in
respect of their powers, privileges and
immunities. During the interval, it was
clearly necessary to confer on them the
necessary powers, privileges and
immunities. There can be little doubt that
the powers, privileges and immunities
which are contemplated by clause (3), are
incidental powers, privileges and
immunities which every legislature must
possess in order that it may be able to
function effectively, and that explains the
purpose of the latter part of clause (3)."
(Emphasis supplied)
The above quoted observations squarely apply to the
corresponding clauses of Article 105 of the Constitution.
In the context of the noticeable omission in other clauses,
including clause (3), of the expression "Subject to the
provisions of this Constitution" as used in clause (1) of Article
194, this Court felt:
".all the four clauses of Article
194 are not in terms made subject to the
provisions contained in Part III. In fact,
clause (2) is couched in such wide terms
that in exercising the rights conferred on
them by clause (1), if the legislators by
their speeches contravene any of the
fundamental rights guaranteed by Part
III, they would not be liable for any action
in any court. Nevertheless, if for other
valid considerations, it appears that the
contents of clause (3) may not exclude
the applicability of certain relevant
provisions of the Constitution, it would
not be reasonable to suggest that those
provisions must be ignored just because
the said clause does not open with the
words "subject to the other provisions of
the Constitution". In dealing with the
effect of the provisions contained in
clause (3) of Article 194, wherever it
appears that there is a conflict between
the said provisions and the provisions
pertaining to fundamental rights, an
attempt will have to be made to resolve
the said conflict by the adoption of the
rule of harmonious construction"
(Emphasis supplied)
The argument that though Article 194(3) had not been
made subject to the provisions of the Constitution, it does not
necessarily mean that it is not so subject, and that the several
clauses of Article 194 should not be treated as distinct and
separate provisions but should be read as a whole and that, so
read, all the clauses should be taken as subject to the
provisions of the Constitution which, of course, would include
part III of the Constitution had been earlier rejected by this
Court through unanimous view on the subject in Pandit
Sharma (I).
It is incumbent in view of Article 105 (3) to trace the
power of expulsion with reference to the powers, privileges and
immunities recognized as vesting in the House of Commons of
Parliament of United Kingdom as on the date of
commencement of the Constitution of India, that is 26th
January 1950. If such a power or privilege vested in the said
legislature, the question would arise as to whether it could be
part of the inheritance for Indian legislatures in the face of the
provisions of its written Constitution.
It is settled that out of entire bouquet of privileges and
powers which the House of Commons claimed at the time of its
bitter struggle for recognition during the 17th through 19th
centuries, all have not survived the test of time. Some were
given up. Some others faded out by desuetude. In this context,
this Court in UP Assembly Case opined thus:-
". in every case where a power is
claimed, it is necessary to enquire
whether it was an existing power at the
relevant time. It must also appear that
the said power was not only claimed by
the House of Commons, but was
recognised by the English Courts. It
would obviously be idle to contend that if
a particular power which is claimed by
the House was claimed by the House of
Commons but was not recognised by the
English courts, it would still be upheld
under the latter part of clause (3) only on
the ground that it was in fact claimed by
the House of Commons. In other words,
the inquiry which is prescribed by this
clause is: is the power in question shown
or proved to have subsisted in the House
of Commons at the relevant time?"
(Emphasis supplied)
The argument of availability of all the powers and
privileges has been rejected in UP Assembly Case with
reference to illustrations of some powers claimed by the House
of Commons as mentioned in May's Parliamentary Practice
(pages 86 & 175 in 16th Ed.), but which cannot be claimed by
the Indian legislatures, including the privilege of freedom of
access which is exercised by the House of Commons as a body
and through its Speaker "to have at all times the right to
petition, counsel, or remonstrate with their Sovereign through
their chosen representative and have a favourable
construction placed on his words was justly regarded by the
Commons as fundamental privilege"; the privilege to pass acts
of attainder and impeachments; and the privilege in regard to
its own Constitution which is expressed in three ways, first by
the order of new writs to fill vacancies that arise in the
Commons in the course of a parliament; secondly, by the trial
of controverted elections; and thirdly, by determining the
qualifications of its members in cases of doubt.
Plea of negation by other Constitutional provisions
Before we consider the question whether the power of
expulsion can be read within Article 105(3) or not, it is
necessary first to decide the question : will reading such a
power under Article 105(3) violate any other provisions of the
constitution. In other words, whether power of expulsion
would be inconsistent with other provisions of the
Constitution of India.
According to the Petitioners the power of expulsion is
inconsistent with the following provisions of the Constitution:-
(i)The provisions relating to vacancy and disqualifications
[Articles 101 - 103];
(ii)The provisions relating to salaries and allowances of
members and their right to hold office till the end of the
term [Article 106 and Article 82(3)];
(iii)Citizen's right to vote and right of representation of their
constituency in Parliament ; and
(iv)The fundamental rights of the MPs.
(i) Provisions relating to vacancy and disqualification:
The Petitioners have relied on Articles 101, 102 and 103
of the Constitution in support of their contention. The
submission is that these Articles (relating to vacancy and
disqualification) are exhaustive regarding the termination of
membership of the Parliament and that no additional ground
can exist based on which the membership of a sitting Member
of Parliament can be terminated. Articles 101, 102 and 103
appear under the sub-heading "Disqualifications of Members"
in Chapter II of Part V of the Constitution.
Learned counsel for the Petitioners submit that since the
Parliament can create an additional disqualification by law, it
was open to it to pass a law seeking to disqualify from
continuing the membership of such members as are guilty of
conduct unworthy of a member. Such a law not having been
passed, the petitioners submit, the termination of membership
cannot take place through a resolution of the House
purporting to act under Article 105(3). Articles 190 and 191
which pertain to the vacation of seats and disqualifications for
membership of State legislatures, correspond to, and are on
identical terms as, Articles 101 and 102.
It is necessary to understand the exact import of the
terms 'vacancy', 'disqualification' and 'expulsion'.
These terms have different meanings and they do not
overlap. Disqualification strikes at the very root of the
candidate's qualification and renders him or her unable to
occupy a member's seat. Expulsion, on the other hand, deals
with a person who is otherwise qualified, but in the opinion of
the House of the legislature, unworthy of membership. While
disqualification operates to prevent a candidate from re-
election, expulsion occurs after the election of the member and
there is no bar on re-election. As far as the term 'vacancy' is
concerned, it is a consequence of the fact that a member
cannot continue to hold membership. The reason may be any
one of the several possible reasons which prevent the member
from continuing membership, for example disqualification,
death or expulsion.
In view of above, it is not possible to accept the
submission that the termination of membership can be
effected only in the manner laid down in Articles 101 and 102.
While these articles do speak of qualifications for and
continuation of membership, in our view they operate
independently of Article 105(3). Article 105(3) is also a
constitutional provision and it demands equal weight as any
other provision, and neither being 'subject to the provisions of
the constitution', it is impossible to accord to one superiority
over the other. We cannot accept the submission that the
provisions in Articles 101 or 102 restrict in any way the scope
of 194(3). There is no reason for them to do so. Though
disqualification and expulsion both result in the vacancy of a
seat, there is no necessity to read one in a way that restricts
the scope of the other. The expulsion on being found unfit for
functioning within the House in no way affects the
qualifications that a member must fulfill, and there is no
reason for the latter to affect expulsion. Both of the provisions
can operate quite harmoniously. We fail to see any
inconsistency between the two. Nor do we find any reason to
support the claim that provisions under Articles 101 and 102
are exhaustive and for that reason, Article 105(3) be read as
not to include the power of expulsion. Further, death as a
cause for vacancy of a seat is also not mentioned in the
relevant provisions. Similarly, it is not necessary for expulsion
to be mentioned, if there exists another constitutional
provision that provides for such a power. It is obvious that
upon expulsion, the seat of the member is rendered vacant
and so no specific recognition of this provision is necessary
within the provision relating to vacancy. Thus, the power of
expulsion cannot be held to be inconsistent with these
provisions.
While interpreting Article 194, three High Courts have
rightly rejected similar contentions {Yashwant Rao
Meghawale v. Madhya Pradesh Legislative Assembly [AIR
1967 MP 95], Hardwari Lal [ILR (1977) 2 P&H 269 (FB)], K.
Anbazhagan v. TN Legislative Assembly [AIR 1988 Mad.
275]. An almost identical question was raised in an
Australian case of Armstrong v. Budd [(1969) 71 SR 386
(NSW)]. The question in that case was whether Section 19 of
the Constitution Act which provided for circumstances of
vacation of seats of Legislative Councillors was exhaustive so
as to prevent the power of expulsion. The Court rejecting the
argument that section 19 was exhaustive stated:-
"..but cannot be argued that s. 19
constitutes a complete code for the
vacation of a seat or contains the only
criteria upon which a vacancy can
occur"
Thus, we are unable to accept the Petitioners' contention
that Articles 101 and 102 are exhaustive with respect to
termination of membership. Therefore, power of expulsion
cannot be said to be inconsistent with these provisions.
In connection with this issue, the Petitioners have also
relied on two other provisions. First, they would submit that
sections 7-10A of the Representation of Peoples Act, 1951 lay
down exhaustive provisions on disqualification, implying that
all disqualifications must be made by law. Indeed, there is no
quarrel with this position. In fact, it has been held by this
Court in Shrikant v. Vasantrao [(2006) 2 SCC 682] that "it
is not possible to add to or subtract from the disqualifications,
either on the ground of convenience, or on the grounds of
equity or logic or perceived legislative intention". However, as
discussed earlier, disqualification and expulsion are two
different concepts altogether, and recognizing the Parliament's
power to expel under Article 105(3) does by no means amount
to adding a new ground for disqualification.
The other provision that the Petitioners have relied upon
is Article 327 of the Constitution. This article enables the
Parliament, subject to the other provisions of the Constitution,
to make provisions by law for "all other matters necessary for
securing the due constitution of the House". They would also
refer to Entry 74 of List I of the Seventh Schedule which
confers upon the Parliament the competence to legislate on the
power, privileges and immunities of the Houses of Parliament.
The argument is that the Parliament can only claim additional
powers by making a law. However, we are unable to accept
this contention, since Article 105(3) itself provides the power
to make a law defining powers and privileges and further the
position that all the privileges of the House of Commons vest
in the Parliament until such a law is passed. Article 327
pertains to the constitution of the House insofar as election
matters, etc. are concerned. It does not refer to privileges that
the Parliament enjoys.
Thus, we find that the power of expulsion is not negated
by any of the above constitutional or statutory provisions.
(ii)Provisions relating to salary etc. and the right to a
fixed term:
It was further argued by the Petitioners, that provisions
in the constitution relating to salary and the term for which
they serve in the House are constitutional rights of the
members and the power of expulsion, by terminating their
membership violates these constitutional rights.
The relevant provisions in the constitution are Article 106
on the subject of salaries and Article 83(2) in relation to the
duration of the Houses of Parliament.
The Petitioners have relied on these above constitutional
provisions and submitted that an expulsion of a Member of
Parliament would result in the violation of the above rights
guaranteed to him. The claim of the other side is that the
decision to expel does not violate these rights. Firstly, it has
been argued that the article laying down the duration of the
House does not guarantee a term for the member. Various
circumstances have been pointed out under which the term
held by a member can be much less than five years, regardless
of what is stated in Article 83(2). Secondly, it has been argued
that Article 106, which lays down provisions for the salary of
the member, is dependent upon the person's membership. It is
only as long as the person continues to be a member that he
can draw the salary. When the membership terminates, the
provisions of Article 106 become inapplicable.
Similar arguments were made in the case of K. Anandan
Nambiar v. Chief Secretary, State of Madras [AIR 1966 SC
657]. In that case, certain members of Parliament were
detained by the Government of Madras and one of the grounds
on which they challenged their detention was the violation of
their constitutional rights. In support of this contention, the
Petitioners relied on various provisions relating to members
and proceedings of the Parliament including Articles 79, 85,
86 and 100. They claimed that they continued to exercise all
the 'constitutional rights' that flow from membership unless
the member is disqualified. The contention was that "if a
Member of Parliament incurs a disqualification, he may cease
to be such member, but if he continues to be qualified to be a
member, his constitutional rights cannot be taken away by
any law or order". This Court rejected this argument holding
that:-
".they are not constitutional rights in
the strict sense, and quite clearly, they
are not fundamental rights at all"
(Emphasis supplied)
Although this case involved detention and the arrest of
the members of Parliament, which are matters relating to field
distinct from that of the rights claimed in the cases at hand,
we are of the view that the logic in the case applies equally to
the present situation. In this case certain provisions regarding
members and their functioning within the Parliament were
held not to create independent rights which could be given
supremacy over a legal detention. Similarly, in the present
case, where there is a lawful expulsion, the members cannot
claim that the provisions relating to salaries and duration of
the House create such rights for the members that would have
supremacy over the power of expulsion of the House.
With specific reference to the power of expulsion, a
similar argument with respect to the duration of the
Legislative Assembly of a State was rejected by the Madras
High Court in the K. Anbazhagan (supra). The High Court
rightly held that such a provision could not negate the power
of expulsion. It stated:-
"Therefore, it cannot be said that merely
because Article 172 provides for a period
of five years to be the duration of the
Legislative Assembly each member must
necessarily continue to be a member for
five years irrespective of the other
provisions of the Constitution".
As far as the provision for the duration of the House is
concerned, it simply states that the normal duration of a
House is to be five years. It cannot be interpreted to mean that
it guarantees to the members a term of five years. The
Respondents have correctly pointed out that a member does
not enjoy the full five-year term under various circumstances;
for example when he or she is elected mid-term, when the
term of the House is cut short by dissolution, when the
member stands disqualified or the seat is rendered vacant. We
find that a correct view in this regard has been taken in K.
Anbazhagan, in line with the view expressed by this Court in
K. Anandan Nambiar. If the provisions mentioned by the
petitioners were actually to create rights in respect of
members, then each of the above situations would be liable to
be challenged for their violation. This quite obviously is not
what is intended by the Constitution. Expulsion is only an
additional cause for the shortening of a term of a member.
Further, as far as the provision relating to the salary of
the member is concerned, it is quite absurd to claim that
because the Constitution makes a provision for salaries, the
power of the House to expel is negated since the result would
be that the member would no longer be paid. Salaries are
obviously dependent upon membership, and the continuation
of membership is an independent matter altogether. The
termination of membership can occur for a variety of reasons
and this is at no point controlled by the fact that salaries are
required to be paid to a member.
Thus, in our view, the above provisions do not negate the
power of expulsion of the House, and there is no inconsistency
between the House's power of expulsion and the said
provisions.
(iii)The right of the constituency to be represented and
the right to vote:
The next contention of behalf of the Petitioners has been
that in the democratic set-up adopted by India, every citizen
has a right to vote and to be duly represented. It was argued
that expelling a member who has been elected by the people
would violate the democratic principles and the constituency
would go unrepresented in the Parliament. They submit that
the right to vote ought to be treated as a fundamental right
and that the power of expulsion violates various democratic
principles. On the other hand, the learned Counsel for Union
of India submitted that the right to be represented is not an
absolute right, and that expulsion does not create a bar for re-
election.
We are unable to accept the contentions of the
petitioners. In this regard, it is first important to note that the
right to vote has been held to be only a statutory right, and
not a constitutional or a fundamental right (see Shrikant v.
Vasantrao [(2006) 2 SCC 682] and Kuldip Nayar v. Union
of India [(2006) 7 SCC 1].
While it is true that the right to vote and be represented
is integral to our democratic process, it must be remembered
that it is not an absolute right. There are certain limitations to
the right to vote and be represented. For example, a citizen
cannot claim the right to vote and be represented by a person
who is disqualified by law or the right to be represented by a
candidate he votes for, even if he fails to win the election.
Similarly, expulsion is another such provision. Expulsion is
related to the conduct of the member that lowers the dignity of
the House, which may not have been necessarily known at the
time of election. It is not a capricious exercise of the House,
but an action to protect its dignity before the people of the
country. This is also an integral aspect of our democratic set-
up. In our view, the power of expulsion is not contrary to a
democratic process. It is rather part of the guarantee of a
democratic process. Further, expulsion is not a decision by a
single person. It is a decision taken by the representatives of
the rest of the country. Finally, the power of expulsion does
not bar a member from standing for re-election or the
constituency from electing that member once again.
Thus, we hold that the power of expulsion does not
violate the right of the constituency or any other democratic
principles.
(iv)Fundamental rights of the member:
Lastly, it has been contended by the Petitioners that the
power of expulsion violates the fundamental rights of the
member. It was argued that the power of expulsion violates
Article 19(1)(g), which guarantees the right to 'practise any
profession, or to carry on any occupation trade of business'. It
was submitted that this right can only be curtailed by a law in
the interest of general public and that producing the same
result by a resolution of the House is impliedly barred. It was
also contended that Article 21, which includes the right to
livelihood was violated, since it can only be restricted by a
'procedure established by law'.
We are not impressed with any of these contentions of
the petitioners. Even if it were to be assumed these rights
apply, we do not believe that they could prevent reading the
power of expulsion within Article 105(3).
First, it is to be remembered that 105(3) is itself a
constitutional provision and it is necessary that we must
construe the provisions in such a way that a conflict with
other provisions is avoided. We are of the view that where
there is a specific constitutional provision as may have the
effect of curtailing these fundamental rights if found
applicable, there is no need for a law to be passed in terms of
Article 19(6). For example, Article 102 relating to
disqualifications provides that members who are of unsound
mind or who are undischarged insolvents as declared by
competent courts are disqualified. These grounds are not
mentioned in the Representation of Peoples Act, 1951. Though
this provision would have the effect of curtailing the rights
under Article 19(1)(g), we doubt that it can ever be contended
that a specific law made in public interest is required.
Similarly, if Article 105(3) provides for the power of expulsion
(though not so expressly mentioned), it cannot be said that a
specific law in public interest is required. Simply because the
Parliament is given the power to make law on this subject is
no reason to say that a law has to be mandatorily passed,
when the Constitution itself provides that all the powers of the
House of Commons vest until such a law is made. Thus, we
find that Article 19(1)(g) cannot prevent the reading of power of
expulsion under Article 105(3).
Finally, as far as Article 21 is concerned, it was
submitted that the 'procedure established by law' includes the
rules relating to the Privileges Committee, etc., which were not
followed and thus the right was violated. In our view, this does
not prevent the reading of the power to expel in Article 105(3).
It is not possible to say that because a 'procedure established
by law' is required, it will prevent the power of expulsion
altogether and that every act of expulsion will be contrary to
the procedure established by law. Whether such a claim is
maintainable upon specific facts of each case is something
that will have to be considered when the question of judicial
review is taken up. At this stage, however, a blanket ban on
the power of expulsion based on Article 21 cannot be read in
the Constitutional provisions. This is an issue that may have a
bearing on the legality of the order. But, it cannot negate the
power of expulsion.
In the light of the above discussion, we hold that the
power of expulsion does not come into conflict with any of the
constitutional provisions and thus cannot be negated on this
basis.
Let us now consider the argument in relation to the
power of self composition of House of Commons.
Power of self composition
The history of England is replete with numerous
instances wherein the power of expulsion was exercised by the
House of Commons. It has been strenuously argued by
Mr.Jethmalani and Mr.Lekhi that all the powers and privileges
of the House of Commons have not been inherited by the
legislative organ under the Constitution of India and power of
expulsion is one such power. To consider this contention, it is
necessary to find out the true nature and character of the
power of expulsion claimed by the House of Commons.
It is true that certain privileges of the House of Commons
are not available to any legislative body in India, whether at
the Union level or in the States, even under clauses (3) of
Articles 105 or 194 of the Constitution.
The case of the petitioners is that the House of Commons
derives the power to expel its members solely from its privilege
of regulating its composition, and from no other source. In
other words, they submit that the power of expulsion has
always been claimed and exercised by the House of Commons
as one that stems from the power of the House of Commons to
determine its own composition including the fitness of elected
members to remain members. Power of expulsion is a facet of
and is part & parcel of this basic privilege of the House of
Commons to provide for and regulate its own Constitution.
The House of Commons has always claimed an unrestricted
and un-canalized power of expelling anyone of its members for
historical reasons and as an adjunct of the ancient and
peculiar privilege of determining its own composition. It has
resorted to this power of expulsion in numerous cases which
have not the remotest relevance to either a breach of privilege
or to the commission of contempt or as a measure of
punishment for ordinary crimes.
The argument is that since the Parliament of India does
not have the power to provide for or regulate its own
constitution, power of expulsion cannot be found conferred by
Article 105 on the Houses of Parliament. In this respect, the
petitioners would place reliance on the conclusion, reached,
with reference to May's Parliamentary Practice [16th ed.,
p.175], in the UP Assembly Case (at page 448) to the effect
that the legislature in India cannot claim privilege of the
House of Commons "in regard to its own Constitution" which
is "expressed in three ways, first by the order of new writs to
fill vacancies that arise in the Commons in the course of a
parliament; secondly, by the trial of controverted elections;
and thirdly, by determining the qualifications of its members
in cases of doubt ".
That the legislatures established under the Constitution
of India do not have the power of self composition cannot be a
subject matter of controversy. It was clearly so observed in UP
Assembly Case.
The Legislative organs in India, both Parliament and the
State legislatures, are completely subservient to, and controlled
by, the written provisions of the Constitution of India in regard
to the composition and the regulation of the membership
thereof and cannot claim the privilege of providing for or
regulating their own constitution. This can be demonstrated by
even a cursory look at the various provisions of the
Constitution which we may presently do.
India is an indestructible Union of destructible units.
Article 3 and Article 4 of the Constitution together empower
Parliament to make laws to form a new State by separation of
the territory from any State or by uniting two or more States or
parts of States or by uniting any territory to a part of any State,
and in so doing to increase or diminish the area of any State
and to alter its boundaries and further to give effect through
measures to provide for the representation in the Legislatures
of State or States affected by such law by varying the compo-
sition, the numerical strength thereof or even affecting the very
existence of a State Legislature.
Article 79 provides for the Constitution of Parliament i.e.
the Union Legislature which consists of the President and two
Houses known respectively as the Council of States and the
House of the People. Article 81 deals with the composition of
the House of the People and inter alia provides for the
maximum numerical strength (not more than five hundred
and thirty members from the States and not more than twenty
members to represent the Union Territories), the manner of
election (direct) and the nature of constituencies in the States
(territorial), allotment thereof to the different States on the
basis of ratio between the number of seats and the population
of the State, with Article 82 taking care of the readjustment of
allocation of seats and the division of each State into territorial
constituencies after each census. Article 83 provides for the
duration of each House of Parliament, making the council of
States a permanent body with one-third of the members
thereof retiring on the expiration of every second year, thereby
giving to each of them tenure of six years. It declares the term
of the House of the People to be five years, unless sooner
dissolved, extendable for a period not exceeding one year at a
time in the event of proclamation of emergency.
Article 84 prescribes the qualifications for membership of
Parliament, spelling out two main qualifications, leaving the
discretion to prescribe the others by law to the Parliament.
The qualifications necessary as per the constitutional
provisions include the citizenship of India and a minimum age.
Article 102 prescribes certain disqualifications which
operate as disqualifications at the time of Election or may
become supervening qualifications subsequent to the election.
As per the mandate in this constitutional provision a person is
disqualified for being chosen as or for being a member of
Parliament if he holds an office of profit (other than such
offices as are declared by Parliament to be exempt from such
consequences); if he is of unsound mind and so declared by a
competent court; if he is an undischarged insolvent; if he is
not a citizen of India or has voluntarily acquired citizenship of
a foreign state or is under any acknowledgement of allegiance
or adherence to a foreign state and if he is so disqualified by or
under any law made by parliament. The question of
disqualification is decided on the basis of opinion of the
Election Commission by the President, in terms of the power
vested in him by Article 103. Article 102(2) also refers to
disqualification as a result of enforcement of the provisions of
the Tenth Schedule on account of defection.
Article 101 makes provision on the subject of vacation of
seats in the Houses of Parliament. A person cannot be a
member of both Houses at the same time and if chosen as a
member of both Houses he is required to vacate his seat in one
or the other House. Similarly a person cannot be a member
both of the Parliament and of a House of the Legislature of a
State. If so elected to both the said bodies, he is required to
resign one seat and in case of default at the expiration of
period specified in the Rules made by the President, the seat
in Parliament is rendered vacant. Article 101(4) empowers the
House to declare the seat of a member vacant if such member
remains absent from all meetings of the House for a period of
sixty days without permission of the House. Article 101(3)
declares that on a member being found disqualified under
Article 102, his seat in the Parliament becomes vacant. In
addition to these various modes of vacation of seats,
resignation of the seat by writing under the hand of the
member results in the seat becoming vacant upon acceptance
of the resignation.
Article 99 requires every Member of Parliament to make
and subscribe the oath or affirmation prescribed in the Third
Schedule, before taking the seat. Article104 prescribes a
penalty for sitting and voting in the Parliament before making
oath or affirmation or when not qualified or in the event of
being rendered disqualified. ,
Article 330 and Article 331 make special provision for
reservation of seats in the House of the People for the
Scheduled Castes & Scheduled Tribes and the Anglo Indian
community.
Article 85 vests in the President the power to summon
each House of Parliament for periodical sessions, the period
between two sittings whereof cannot exceed six months. The
said Article also vests in the President the authority to
prorogue either House or dissolve the House of the People.
The above mentioned are some of the provisions of the
Constitution that collectively show that the privilege of
regulating own composition is not available to the Parliament.
Part XV of the Constitution of India makes detailed
provisions on the subject of Elections to the Parliament and
State Legislatures. Article 326 makes adult suffrage as the
norm for these elections. The mandate of Article 324 is that it is
the Election Commission that controls the superintendence,
direction and control of elections. There is no power in any
legislature to fill its own vacancies or to issue writs for the
holding of by-elections etc.
Articles 168 and 169 provide for the constitution of the
State Legislatures, with Parliament being vested with power to
substantially alter the very composition of the State
Legislatures by providing procedure following which bicameral
Legislature of a State may be altered to a unicameral one, or
vice versa. Article 170 and Article 171 deal with the
composition of the Legislative Assemblies and the Legislative
Councils respectively in the States. The maximum and the
minimum number of members are prescribed by law and the
ratio between the population of each constituency within the
State with the number of seats allotted to it being also
regulated by constitutional provisions, even the matter of re-
adjustment of the territorial constituencies being controlled by
such authority (Delimitation Commission) and in such manner
as Parliament is to determine by law. The normal tenure of five
years for a State Legislative Assembly is prescribed by Article
172. The duration of the State Assembly and the mode and
manner of its dissolution are matters controlled by
constitutional prescriptions. Articles 173 and 191 prescribe the
qualifications and disqualifications for the membership of the
State Legislature; Article 174 creates a constitutional obligation
on the State Legislatures to meet at least once within a space of
six months, the power to summon the State legislature having
been given not to the House(s) but to the Governor
Articles 327 and 328 empower the Parliament and the
State Legislatures, in that order, to make laws in connection
with the preparation of the electoral rolls, the delimitation of
constituencies and all other matters necessary for securing the
due constitution of the State Legislatures. Article 333 to 334
provide for the reservation of seats for the Scheduled Castes
and other communities in the State Legislatures again dealing
with the subject of composition and the character of the
membership thereof.
Article 329 does bar the jurisdiction of courts but only in
matters of delimitation of constituencies or allotment of seats
thereto and reserves the jurisdiction to deal with election
disputes in favour of the authority prescribed by law, which
incidentally is High Court as per the Representation of People
Act, 1951.
It must, therefore, be held as beyond the pale of all doubts
that neither Parliament nor State Legislatures in India can
assert power to provide for or regulate their own constitution in
the manner claimed by the House of Commons in United
Kingdom. Having regard to the elaborate provision made
elsewhere in the Constitution, this power cannot be claimed
even, or least of all, through the channel of Articles 105 (3) or
294 (3).
The question that immediately arises is as to whether the
power of expulsion is referable exclusively, or solely, to the
power of the House of Commons to determine its own
composition including the fitness of elected members to
remain members.
The Union of India has argued that there is no authority
for the proposition that the House of Commons derived its
power to expel a member only from its privilege to provide for
its own Constitution or composition. It is the stand taken by
the learned Counsel that at the highest it may be stated that
the expulsion of a member by the House of Commons can also
be a manifestation of its power to control its own composition
in addition to the privilege to control its own proceedings
including disciplining a member in a fit case by his expulsion.
On the other hand, seeking support from commentaries
on Constitutional law of England, the petitioners point out that
the subject of expulsion is dealt with by all authorities as
inextricably linked with the determination of the legal
qualifications or disqualifications for the membership of the
House of Commons, that is the peculiar right to judge upon the
fitness or unfitness of anyone of its members to continue as a
legislator. This power, they submit, is essentially derived from
the privilege to provide for its own constitution and from no
other source.
The petitioners submit that a holistic reading of the
works of English and Commonwealth authors reveals that all
of them treat expulsion solely as an expression of the 'Privilege
of Regulating Due Composition of the House', and not as part
of privilege of regulating own proceedings or as an
independent penal power for punishing contempt. In fact, they
submit, the right of the House of Commons to regulate its own
proceedings was nothing more than a right of exclusive
cognizance of matters concerning the House to the exclusion
of the Courts' jurisdiction. It was merely a jurisdictional bar,
and had nothing to do with the source of power that could be
legitimately exercised in Parliament. The argument is that if
the power to expel does not reside in the House of Commons
independent of the power to constitute itself, it would
naturally not be available to the Indian Legislatures.
Mr. Andhyarujina and Mr.Subramanian, however,
submitted that the privilege of the House of Commons "to
provide for its own proper constitution" has a meaning with
regard to its privileges in the matter of elections to it, as
explained by May in three ways as noticed by this Court in UP
Assembly Case as mentioned above and which include
"determining the qualifications of its members in cases of
doubt". Referring to May's 20th ed. Chapter 2 on elections p.
34 and Chapter 3 on Qualifications p. 520, it is argued that
this privilege is essentially related to electoral matters
including disqualifications to be elected. The "qualifications"
referred to are the qualifications of a member elected but
whom the House considers as not qualified to stand for
elections and sit in Parliament e.g. insolvents, minor, lunatics,
aliens, those charged with treason, peers etc. The House has a
right to determine the qualifications "in case of doubt" which
clearly shows that this statement does not mean unfitness to
be a member by conduct.
The debate on the subject took the learned counsel to the
interpretation and exposition of law of Parliament as is found in
the maxim lex et Consuetudo Parliamenti as the very existence
of a parliamentary privilege is a substantive issue of
parliamentary law and not a question of mere procedure and
practice.
The petitioners seek to draw strength from the
observations of this Court in UP Assembly Case referring to
the privilege of the House of Commons in regard to its own
constitution "expressed in three ways" that cannot be
claimed by the Indian Legislature. In this context,
however, questions have been raised as to whether the
privilege in regard to its own constitution is expressed by
the Commons only in the three ways mentioned above or
the three ways enumerated are merely illustrative of the
various other ways in which the House of Commons might
have expressed, claimed or enjoyed the said privilege.
Reference has been made to a distinct fourth way of
expression mentioned by Anson (in "Law and Custom of the
Constitution") with counter argument that the said fourth
way is a mere extension of the three ways and is really a
part thereof and not independent of the same.
Anson in 'The Law and Custom of the Constitution' [Fifth
edition (1922), Volume I, Chapter IV] deals with the privileges of
the House of Commons, dividing them broadly into two classes;
namely (i) privileges which are specifically asserted and demanded
of the Crown at the commencement of every Parliament and (ii)
the undoubted privileges of the House of Commons regarding
which no formal demand or request is made by the Speaker to the
Crown and which nevertheless are regularly asserted and enforced
by the House. The instances of the first category include the
privileges of free speech, of access to the Crown and of having the
most favourable construction put upon all their proceedings. The
instances of the second category include the fundamental privilege
claimed by the House of Commons to provide for and regulate its
own Constitution.
At page 154, Anson makes the following observations:-
"But there are other privileges not
specifically mentioned on this occasion
though regularly asserted and enforced
by the House. These are the right to
provide for the due constitution of its own
body, the right to regulate its own
proceedings, and the right to enforce its
privilege by fine or imprisonment or in
the case of its own Members by
expulsion."
While dealing with the privilege of the House of Commons
to provide for and regulate its own Constitution, Anson sub-
divides the mode and manner of its exercise into four parts, the
first three of which correspond to what is expounded by May
(20th Edition). He deals in great detail (5th ed., p. 182) with
expulsion on account of unfitness to serve as the fourth sub-
heading under the main heading of 'Right to provide for its
proper Constitution' stating as under:-
"Unfitness to serve, a cause of
expulsion, Case may arise in which a
member of the House, without having
incurred any disqualification recognised
by law, has so conducted himself as to be
an unfit member of a legislative assembly.
For instance, misdemeanour is not a dis-
qualification by law though it may be a
disqualification in fact, and the House of
Commons is then compelled to rid itself of
such a member by the process of
expulsion. But expulsion, although it
vacates the seat of the expelled member,
does not create a disqualification; and if
the constituency does not agree with the
House as to the unfitness of the member
expelled, they can re-elect him. If the
House and the constituency differ
irreconcilably as to the fitness of the
person expelled, expulsion and re-election
might alternate throughout the
continuance of a Parliament."
(Emphasis supplied)
Under the same sub-heading Anson also deals in detail
with the cases of expulsion of John Wilkes (1769) and
Walpole (1712). The case of Wilkes is cited to bring out the fact
that expulsion did not have the effect of creating a
disqualification. In spite of repeated expulsions by the House of
Commons, which even proceeded to declare his election void
thereby seeking to arbitrarily create a new disability depending
on its own opinion of his unfitness to be a member of this body,
Wilkes was elected to serve in the new Parliament and "took his
seat without question".
From the passage extracted above, the petitioner
wants to infer that when expulsion is resorted to by the
House of Commons to rid itself of a member who may be
fully qualified but is found to be unfit to continue as a
member of the House, it is so done in exercise of the
privilege of the Commons to constitute itself. The petitioner
has stressed that such action can only be taken on a
member having been convicted for misdemeanor.
But then, one cannot lose sight of the words "for
instance" that precede the particular illustration of
exercise of power of expulsion by the House of Commons
in Anson. Clearly, what Anson seeks to convey is only that
it is within the power of the House of Commons to get rid
of such member as is considered to be unfit to continue to
be its member on any ground other than of conviction for
misdemeanor.
It is the argument of the Petitioners that Anson treats
expulsion exclusively as a facet of the privilege of the House of
determining its own composition, and under no other head.
Anson explains (5th ed., p. 188) the nature and character of
this power, under the heading 'Power of inflicting punishment
for breach of Privilege' in the following words:-
"But expulsion is a matter which concerns
the House itself and its composition, and
amounts to no more than an expression of
opinion that the person expelled, is unfit
to be a member of the House of Commons.
The imposition of a fine would be an idle
process unless backed by the power of
commitment. It is, then the right of
commitment which becomes, in the words
of 'Sir E. May, 'the keystone of
Parliamentary privilege'. It remains to
consider how it is exercised and by what
right."
What Anson seems to indicate here is that expulsion is
a sanction that goes beyond mere imposition of fine backed
by the power of commitment in case of default and also that
expulsion undoubtedly affects the composition of the
House. He does not state that expulsion only concerns the
composition of the House. He is talking of possible
sanctions for gross misdemeanour against members and
not the qualifications requisite to become a member.
Further, Anson mentions the details of the privilege of the
right to constitute itself (5th ed., p. 177). He states, under a
separate heading "Right to provide for its proper
Constitution", as follows:-
"One of these privileges is the right to
provide for the proper constitution of
the body of which it consists by issue of
writs when vacancies occur during the
existence of a parliament, by enforcing
disqualification for sitting in parliament,
and until 1868 by determining disputed
elections."
Noticeably, in this context, Anson would not mention
expulsion as one of the facets of the power of the House of
Commons to constitute itself.
At the same time, one cannot lose sight of the fact that
the power of inflicting punishment for breach of privilege
has been separately dealt with even by Anson (5th ed., p.
177 onwards). The punishments which are awarded to
members or non-members are dealt with by Anson under
separate headings such as "admonition", "reprimand",
"commitment", "fine", and "expulsion". The discussion
under the last mentioned item in Anson starts with the
following passage (5th ed., p. 187): -
"In the case of its own members the
House has a stronger mode of
expressing its displeasure. It can by
resolution expel a member."
The resolution of expulsion as an expression of
displeasure takes it beyond the realm of power of self
constitution. These paragraphs unmistakably show that
expulsion is not considered by Anson as exclusively arising
from the privilege of the House to provide for its own
Constitution.
Halsbury in his "Laws of England" deals with the subject
of the "Privileges peculiar to the House of Commons". The
Petitioners argue that the power of expulsion is dealt with
directly as a facet of the privilege of determining due
composition of the House by Halsbury as well. This
conclusion, they submit, is fortified by the fact that Halsbury
deals with 'Penal Jurisdiction of the House' distinctly in
paragraphs 909-913. While express reference is made to
reprimand, admonition, committal etc, expulsion is
conspicuous by its absence. Arguing that the privilege of the
House of Commons to provide for its own Constitution is "in
addition" to possessing complete control over its proceedings
including punishing its own members, reliance is placed, on
the other hand, by Mr. Andhyarujina, learned counsel for
Union of India on the following observations in Halsbury's Law
of England (Fourth Edition, Vol.34, Para 1019):-
"1019. Privilege of the House of
Commons in relation to its
constitution. In addition to possessing a
complete control over the regulation of its
own proceedings and the conduct of its
members, the House of Commons claims
the exclusive right of providing, as it may
deem fit, for its own proper constitution."
The petitioners, in reply, submit that no such
significance can be attached to the words "In addition". They
argue that the paragraph, when viewed in the context of the
other paragraphs under Chapter 2 namely 'Privileges etc
claimed', it becomes clear that the opening words 'In addition
to' make no addition to the Respondent's case. Paragraph
1007 deals with the right of the House of Commons to regulate
its own proceedings as 'Exclusive cognizance of proceedings'.
Bradlaugh also relied upon by the Union of India as part of
this argument is cited in this part. The scope of this privilege
is explained in the words, "This claim involves the exclusion of
review by any court or other external body of the application of
the procedure and practice of either House to the business
before it".
The petitioners submit that the right of the House to
regulate its own proceedings, of which expulsion is being
claimed an incident, is nothing more than a jurisdictional bar,
and not a positive source of any power. It is in this context
that Para 1019 opens with the words, "in addition to
possessing complete control over the regulation of its
proceedings and the conduct of its members". It refers only to
the exclusive jurisdiction exercised by the House of Commons
to the exclusion of the Courts. These words, according to the
petitioners, in no manner locate a new source of expulsion
power in the privilege of regulating its internal affairs. It is the
argument of the petitioners that Expulsion is explicitly dealt
with in paragraph 1026, which describes expulsion as being a
facet exclusively of the privilege of determining due
composition of the House.
Para 1019 of Halsbury's Law of England quoted above
corresponds to Para 905 in its third edition of Volume 28 (Part
7, Section 2), also under the heading "Privileges peculiar to the
House of Commons". As is seen in that edition, after making
particular reference to the claim of the House of Commons to
the exclusive right of providing as it deems fit "for its own
proper constitution", Halsbury would mention the "Power of
expulsion" in the succeeding Para, as is noticeable in the
following extract:-
"906. Power of expulsion. Although the
House of Commons has delegated its right
to be the judge in controverted elections,
it retains its right to decide upon the
qualifications of any of its members to sit
and vote in Parliament.
If in the opinion of the House, therefore, a
member has conducted himself in a
manner which renders him unfit to serve
as a member of Parliament, he may be
expelled from the House, but, unless the
cause of his expulsion by the House
constitutes in itself a disqualification to
sit and vote in the House of Commons, it
is open to his Constituency to re-elect
him.
The expulsion of a member from the
House of Commons is effected by means
of a resolution, submitted to the House
by means of a motion upon which the
question is proposed from the chair in the
usual way."
The petitioners seek to argue that Halsbury, in a later part
in its third edition of Volume 28 (Part 7, section 3), dealing with
the "Penal Jurisdiction of the two Houses" in matters of
"Breaches of Privileges and Contempts", made express mention
of the sanctions that included reprimand, admonition and the
power to commit to imprisonment for contempt but omitted
reference to power of expulsion. The submission made is that
this omission renders doubtful the plea that expulsion from the
House of Commons is also within its penal jurisdiction and is
imposed as a measure of punishment for contempt.
But then, it is pertinent to mention here that Para 906 of
the third edition has been omitted in the fourth edition. The
subject of "Privilege of the House of Commons in relation to its
constitution" is followed by narration in separate Para (1020)
on the subject of "Power to fill vacant seat while the House of
Commons is sitting" and then by another Para (1021) on the
subject of "Power to fill vacant seat during prorogation or
adjournment" which appeared in earlier edition as Para
numbers 907 & 908 respectively.
The subject of the power of expulsion claimed by the
House of Commons stands shifted in the Fourth edition to a
later sub-part (3) under the heading "Jurisdiction of
Parliament" mainly dealing with the Penal jurisdiction, and
after narrating the position generally on the subject of
"Proceedings against offenders" and then referring to the "Power
to commit", "Period of imprisonment" and two other sanctions
namely "Reprimand and admonition", deals specifically with the
subject of power of expulsion of the House of Commons in Para
1026, which reads as under:-
"1026. House of Commons' Power of
expulsion. Although the House of
Commons has delegated its right to be the
judge in controverted elections (see para
1019 note 2 ante), it retains its right to
decide upon the qualifications of any of its
members to sit and vote in Parliament.
If in the opinion of the House a
member has conducted himself in a
manner which renders him unfit to serve
as a member of Parliament, he may be
expelled, but, unless the cause of his
expulsion by the House constitutes in
itself a disqualification to sit and vote in
the House, he remains capable of re-
election."
Noticeably, the contents of Para 1026 of the Fourth
Edition are virtually the same as were reflected in Para 906 of
the Third Edition, the last sub-Para of the latter (relating to
the means adopted for effecting expulsion) being one major
omission. What is significant, however, is the shifting of the
entire subject from close proximity to the privilege of the
House of Commons in relation to its Constitution, (as was the
position in earlier edition) to the mention of power of expulsion
now amongst the various sanctions claimed by the said
legislature as part of its penal jurisdiction. The footnotes of
Para 1026 borrow from the elaboration made through
footnotes relatable to erstwhile Para 906 and clarify that the
jurisdiction formerly exercised by the House of Commons in
controverted elections has been transferred since 1868 to the
Courts of law and further that, as mentioned in May's
Parliamentary Practice, members have been expelled from the
House of Commons upon various grounds, such as being
rebels, or having been guilty of forgery, perjury, frauds and
breaches of trusts, misappropriation of public money,
corruption in the administration of justice or in public offices
or in the execution of their duties as members of the House, or
of contempts and other offences against the House itself.
Undoubtedly, the words "In addition" with which Para
1019 opens do relate to the House of Commons possessing "a
complete control over the regulation of its own proceedings"
but that is not the end of the matter. The words are
significant also in the context of the second limb of the
opening clause of the said Para, that is to say the words "and
the conduct of its members". We are therefore, unable to
accept the contention of the petitioners that Halsbury narrates
the power of expulsion as a power originating from the power
of the House of Commons to regulate its own proceedings only.
Rather, the new arrangement in the Fourth edition shows that
Halsbury treats the power of expulsion more as a power
arising out of the penal jurisdiction than from the power of self
composition.
The "Constitutional History of England" by Professor F.W.
Maitland (first edition 1908 - reprinted 1941), based on his
lectures, is divided chronologically. In the last and most
contemporary 'Period V' titled "Sketch of Public Law at the
Present Day (1887-8)", he deals with the House of Commons in
Part III. It has been opined by him that the earlier exercise of
privileges from the 14th to the 18th century may have fallen into
utter desuetude and indeed may furnish only an example of an
arbitrary and sometimes oppressive exercise of uncanalised
power by the House. After mentioning the membership and the
qualification of the voters as also principles and the mode of
election and dealing with the power of determining disputed
elections by the House of Commons, one of the facets of the
privilege of the House of Commons to provide for and regulate
its own Constitution, in the context of the vacation of seats in
the House by incurring disqualifications, he refers in sub-Para
(6) to the power of expulsion. His words may be extracted:-
"The House has an undoubted power of
expelling a member, and the law does not
attempt to define the cases in which it
may be used. If the House voted the
expulsion of A.B. on the ground that he
was ugly, no court could give A.B. any
relief. The House's own discretion is the
only limit to this power. Probably it would
not be exercised now-a-days, unless the
member was charged with crime or with
some very gross miss-behaviour falling
short of crime, and in general the House
would wait until he had been tried and
convicted by a court of law. In 1856 a
member who had been indicted for fraud
and who had fled from the accusation was
expelled."
Though Maitland also discusses expulsion along with the
other constituent elements of the House's Privilege of
determining its own composition, we are unable to accept the
argument of the Petitioners that this exposition by Professor
Maitland shows that the power of expulsion was claimed by the
House of Commons it being only a part and parcel of its basic
privilege to control its own composition. During the course of
lectures, which is the format used here, Maitland referred to
expulsion alongside the privilege of the House of Commons to
control its own composition. But his narration reflects it was
the penal jurisdiction which was being highlighted in the
context of sanction of expulsion of members for misconduct.
Reference has also been made to the "Constitutional Law"
(Seventh edition) by Professors Wade and Phillips. On the
subject of the privileges of the House of Commons (Chapter 10),
while elaborating the undoubted privilege to control its own
proceedings and to provide for its own proper Constitution,
reference is made to the power of the House to determine the
disputed elections also indicating it to be inclusive of the power
of expulsion. The authors write as under:-
"Expulsion: The House of Commons still
retains the right to pronounce upon legal
qualifications for membership, and to
declare a seat vacant on such ground. The
House may, however, as in the case of
Mitchel [(1875), I.R. 9C.L. 217] refer such
a question to the Courts. The House of
Commons cannot, of course, create
disqualifications unrecognised by law, but
it may expel any member who conducts
himself in a manner unfit for
membership. A constituency may re-elect
a member so expelled, and there might, as
in the case of John Wilkes, take place a
series of expulsions and re-elections.
Expulsion is the only method open to the
House of dealing with a member convicted
of a misdemeanour."
It has been argued by the petitioners that Professors Wade
and Phillips plainly treat expulsion as inextricably linked with
privilege of determining own composition or as an inevitable
consequence, where the House takes the view that a member
has conducted himself in such a manner as to be unworthy of
membership of the legislature, an act not explainable as
expulsion by way of a measure of punishment for the offence of
contempt.
We are unable to agree. Wade & Phillips have treated the
subject of expulsion from different angles, not necessarily
leading to the conclusion that this power would always be
traceable to the power of self composition alone. Expulsion on
account of conviction for misdeamonour refers to disciplinary
control and therefore part of penal jurisdiction which
undoubtedly is distinct from the power of the House to provide
for its own constitution.
Professors Keir and Lawson in their work "Cases in
Constitutional Law" (fifth edition), while dealing with cases of
Parliamentary privileges (page 263) mention first the exclusive
jurisdiction over all questions which rise within the walls of the
House except perhaps in cases of felony, referring in this
context to case of Bradlaugh, and then to the personal
privileges (freedom of debate, immunity from civil arrest, etc.)
which attach to the members of Parliament, and lastly the
punitive power for contempt indicated in the following words at
page 268:-
"(iii) The power of executing decisions in
matters of privilege by committing
members of Parliament, or any other
individuals, to imprisonment for contempt
of the House. This is exemplified in the
case of the Sheriff of Middlesex."
The petitioners seek to point out that expulsion of a
member is not included in the penal powers of the House of
Commons. To our mind, default in this regard by the author
does not lead to the conclusion that expulsion was not one of
the sanctions available against a member to the House as part
of its disciplinary control in as much as other authorities on
the subject demonstrate it to be so.
"Constitutional Law" by E.W. Ridges (Eighth edition,
p.65), as part of the discourse on the rights exercisable by the
House of Commons as flowing from its basic privilege of
providing for its due composition sets out the classification as
under:-
"The Right to provide for its Due
Composition.
This comprises:
(a) The right of the Speaker to secure the
issue of a new writ on a vacancy occurring
during the existence of a Parliament either
by operation of some disqualification or on
the decision of a member elected in more
than one place which seat he will accept.
If in session, the writ is issued in
accordance with the order of the House. If
not in session, the procedure is regulated
by certain statutes.;
(b) The right to determine questions as to
the legal qualifications of its own
members, as in Smith O Brien's case
(1849), O' Donovan Rossa's case (1870),
Mitchel's case (1875), Michael Davitt's
case (1882) and AA Lynch's Case (1903),
these persons being disqualified as
undergoing sentence in consequence of
conviction for felony or treason.
In Mitchel's Case the House declared
the seat vacant, but on his being elected a
second time they allowed the courts to
determine the question, and it was held
that the votes given to Mitchel were
thrown away and his opponent at the
election duly elected in consequence. In
Michael Davitt's case the House resolved
that the election was void, and a new writ
was accordingly issued.
(c) The right to expel a member although
subject to no legal disqualification. So, in
1621, Sir R. Floyd was expelled merely
because he was a holder of the monopoly
of engrossing wills. Thus a member guilty
of misdemeanour does not forfeit his seat,
but may be expelled, thus vacating his
seat. Or the House may itself decide that
a member's acts merit expulsion, as in the
case of Sir R. Steele's pamphlet, The
Crisis, in 1714, and of Wilkes' North
Briton (No. 45) in 1763. In Wilkes' Case
(1769), Wilkes having been expelled and
re-elected, the House passed a resolution
declaring his election void, and the
member next on the poll duly returned. In
1782 the House declared this resolution
void, as being subversive of the rights of
the electors, and the proceedings in
connection with the election were
expunged from the journals. The proper
course in such a case would therefore be
for the House to expel the member a
second time, if so disposed. In Upper
Canada Mr. Mackenzie was thus four
House times expelled in the Parliament
from 1832. In October, 1947, the House
expelled Mr. Garry Allighan, the member
for Gravesend, after a committee of
privileges had declared him to be guilty of
gross contempt of the House in publishing
scandalous charges against other
members, such charges being, to his
knowledge, unfounded and untrue. At the
same time the House also reprimanded
Mr. Evenlyn Walkden, the member for
Doncaster, on whose conduct a committee
of privileges had reported adversely. The
House declared him guilty of
dishonourable conduct in having
disclosed to a newspaper information that
had come to him at a private and
confidential party meeting. and
(d) Formerlythe House claimed from
the reign of Elizabeth and exercised the
right to determine questions of disputed
election,"
It is clear from the above extract that E.W. Ridges, though
referring to the power of expulsion under the heading "The
Right to Provide for its Due Composition", does not restrict it as
a power sourced from the right to provide for its own
composition but refers at length to cases where the power of
expulsion was used by the House of Commons in cases of
criminal conduct, gross misdemeanour and even in matters of
contempt. We are therefore unable to subscribe to the
inference that the power of expulsion according to Ridges is
traceable only to the privilege of self composition.
Indeed, as pointed out by the Editor Sir Barnett Cocks
(also a former Clerk of the House of Commons) in the preface to
the 18th Edition (1971) of May in Parliamentary Practice, this
work would deal with the subject under various headings
including 'Elections', 'Disqualification for Membership of Either
House' etc. leading to overlapping. Be that as it may, while
discussing the subject of disqualification for the membership of
the House of Commons in Chapter III, it has been mentioned
that a person convicted of a misdemeanour is not thereby
disqualified for election or for sitting and voting, but when a
member is so convicted, the House might decide to expel him,
but such expulsion does not in itself create a disability or
prevent a constituency from re-electing the expelled member.
After having referred to this aspect of the expulsion, the editor
would make a cross-reference for further discussion on the
subject at page 130 included in Chapter IX of the work which
pertains to the penal jurisdiction of the House of Parliament
and their powers to inflict punishment for contempt.
It has been argued by the learned Counsel for Union of
India that the exposition of law by May shows that the power of
expulsion was not sourced only from the power of the House of
Commons to provide for its own composition but also out of its
penal jurisdiction dealing with breaches of privileges and
contempt. He would refer in this context to observations at
page 127 that in cases of contempt committed in the House of
Commons by its members, the penalties of suspension from the
House and expulsion were also available and in some cases
they had been inflicted cumulatively.
The exposition by May in Chapter 8 titled "Other privileges
claimed for the Commons" (20th Edn.) under the heading
"Privilege of the House of Commons with respect to its own
constitution", according to the petitioners, treated expulsion as
an example of the power of the House of Commons to regulate
its own constitution, relatable to the matters of disqualification
for membership. Though he would deal with the subject of
expulsion at length with other punitive powers of the House, in
as much as the results are equally grave and adverse to a
sitting member, the petitioners argue that, May would
categorically explain that expulsion is neither disciplinary nor
punitive but purely a remedial measure intended to rid the
house of persons who in its opinion are unfit for its
membership.
The petitioners refer to the testimony given by Sir Barnett
Cocks during inquiry before a Committee of the House of
Commons. He had been specially called by the Committee of
Privileges of the House of Commons in the case of Rt. Hon.
Quintin Hogg, Lord President of the Council and Secretary of
State for Education and Science and examined about the
essence and the real nature of this parliamentary Privilege. The
Report dated 16th June 1964 of the Committee indicates that
when questioned by the Attorney General as to the nature of
power exercised by the House of Commons treating the
behaviour of Asgill as either a contempt of the House or a
breach of privilege he agreed that the House of Commons
having complete control over its own membership was merely
exercising its said power. He referred to Erskine May wherein it
is illustrated as one of the privileges of the House to control its
own membership and to expel members who are unworthy of
membership, to control its own composition.
When the Chairman Mr. Salwyn Llyod, referred to case of
Garry Allignan's and asked for clarity as to whether there could
be a situation of expulsion simply for disreputable conduct
having nothing to do with privilege or contempt but because the
House regarded one of its members as unfit to sit in it, Sir
Barnett Cocks opined, "I think a Member can be expelled for
conduct which need not be related to one of three or four
existing Privileges", this in answer to query from Sir Harold
Wilson wherein he had mentioned other Privileges, one being
the power to determine its own membership.
The Petitioners have submitted that the above mentioned
opinion rendered by Sir Barnett Cocks in House of Commons
also demonstrates that he would also regard the power of
expulsion essentially as another facet of the basic
parliamentary privilege of the House of Commons to provide for
its own constitution and determine its membership, which had
been used by that legislature to expel members for undefined
and unspecified reasons completely and wholly unrelated to
any breach of its privilege or its contempt and thus not as a
punitive measure of express punishment for contempt of the
House.
May, in 20th Edition dealt with the "Penal Jurisdiction of
the Houses of Parliament" in separate chapter (Chapter 9), and
after dealing with the power to inflict punishment for contempt
and referring to various sanctions including that of
commitment, fine, reprimand & admonition, talked about the
power of "Expulsion by the Commons" at page 139, where he
would state thus:-
"The purpose of expulsion is not so much
disciplinary as remedial, not so much to
punish Members as to rid the House of
persons who are unfit for membership. It
may justly be regarded as an example of
the House's power to regulate its own
constitution. But it is more convenient to
treat it among the methods of punishment
at the disposal of the House."
In the 23rd Edition of May's Parliamentary practice, the
discourse on the subject of "Privilege of the House of
Commons with respect to its own constitution" has been
shifted to Chapter 5 titled "The privilege of Parliament" and
appears at page 90 onwards. As noticed earlier, the paragraph
appearing in the 20th Edition wherein it was mentioned that
the privilege to provide for its proper constitution was
expressed in three ways by the House of Commons has been
omitted. It is significant that the power of expulsion is
mentioned even in the 23rd Edition, elaborately in Chapter 9
that deals with "Penal Jurisdiction of both Houses", alongside
the other such powers of punishment including committal,
fines, reprimand and admonition. The observation that the
purpose of expulsion is "not so much disciplinary as remedial,
not so much to punish Members as to rid the House of
persons who are unfit for membership" is also missing.
We are unable to accept the contentions of the petitioners
that the source of Power of Expulsion in England was the
privilege of the House of Commons to regulate its own
constitution or that the source of the power is single and
indivisible and cannot be traced to some other source like
independent or inherent penal power.
The right to enforce its privileges either by imposition of
fine or by commitment to prison (both of which punishments
can be awarded against the members of the House as well as
outsiders) or by expulsion (possible in case of members only)
is not a part of any other privilege but is by itself a
separate and independent power or privilege. To enforce a
privilege against a member by expelling him for breach of
such privilege is not a way of expressing the power of the
House of Commons to constitute itself.
Though expulsion can be, and may have been, resorted
to by the House of Commons with a view to preserve or
change its constitution, it would not exclude or impinge
upon its independent privilege to punish a member for
breach of privilege or for contempt by expelling him from
the House. Expulsion concerns the House itself as the
punishment of expulsion cannot be inflicted on a person
who is not a member of the House. As a necessary and
direct consequence, the composition of the House may be
affected by the expulsion of a member. That would not,
however, necessarily mean that the power of expulsion is
exercised only with a view, or for the purpose of regulating
the composition of the House. One of the three ways of
exercising the privilege of the Commons to constitute itself
as mentioned by May (in 20th Edition) can undoubtedly, in
certain circumstances, be expressed by expelling a
member of the House. But this does not mean that the
existence and exercise of the privilege of expelling a
member by way of punishment for misconduct or contempt
of the House stands ruled out. The power of self
composition of the House of Commons is materially
distinct and meant for purposes other than those for
which the House has the competence to resort to
expulsion of its members for acts of high misdemeanour.
The existence of the former power on which expulsion can
be ordered by the House of Commons cannot by itself
exclude or abrogate the independent power of the House to
punish a member by expelling him, a punishment which
cannot be inflicted on a non-member.
Expulsion being regarded as "justly as an example of the
privilege of the House of Commons to regulate its own
Constitution" by May does not mean that the power to expel is
solely derived from the privilege to regulate its own
Constitution or that without the privilege of providing for its
own Constitution, the House could not expel a member. The
latter view would be contrary to the established position that
the House has a right as part of its privilege to have complete
control over its proceedings including the right to punish a
member by expulsion who by his conduct interferes with the
proper conduct of Parliament business.
Power to punish for Contempt
The next question that we need to decide is whether the
Indian parliament has the power of expulsion in relation to the
power to punish for contempt. It is the contention of the
petitioners that the Parliament cannot claim the larger
punitive power to punish for contempt.
It has been argued on behalf of the Petitioners that the
power to punish for contempt is a judicial power enjoyed by
the House of Commons in its capacity as a High Court and,
therefore, the same power would not be available to the
legislatures in India. According to the Petitioners, this position
has already been laid down in the case of UP Assembly. In
addition, they would also place reliance on various decisions
from other jurisdictions which make a distinction between
punitive contempt powers - essentially judicial in nature and
powers for self-protection - incidental to every legislative body.
According to the Petitioners, the full, punitive power of the
House of Commons is not available; rather the legislatures in
India can exercise only limited remedial power to punish for
contempt.
On the other hand, the Respondents have argued that
the power to punish for contempt is available to the
Parliament in India as they are necessary powers. It was
submitted that the power to punish for contempt is a power
akin to a judicial power and it is available to the Parliament
without it being the High Court of Record. Further, it was
submitted that the Parliament has all such powers as are
meant for defensive or protective purposes.
Thus, the questions that need to be addressed are as to
whether the legislatures in India have the power to punish for
contempt and, if so, whether there are any limitations on such
power.
The powers, privileges and immunities of Parliament
under Clause 3 of Article 105 are other than those covered by
earlier two clauses. Since powers thus far have not been
defined by Parliament by law, they are such as vested in the
House of Commons at the commencement of the Constitution.
The first question, therefore, is whether this source itself
incorporates any restrictions. Article 105(3) in this respect
seems plain and unambiguous. Upon a reading of the clause,
it seems clear that the article itself envisages no restrictions
regarding the powers that can be imported from the House of
Commons. It only states that the powers of the Indian
parliament are those of the House of Commons in the United
Kingdom without making any distinction regarding the nature
of the power or its source. Hence the argument on behalf of
the respondents that it would be alien to the Constitution to
read qualifying words into this article that are not present in
the first place and not intended to be included.
The respondents have referred to the evolution of the
jurisprudence on the subject in other jurisdictions, in
particular where there have been legislated provisions in
respect of colonial legislatures, in which context it has been
held that such legislative bodies enjoy all the powers of the
House of Commons, including those the said House had
enjoyed in its capacity as a Court of Record.
Through an enactment establishing a Colonial
Constitution, the parliament of the Colony of Victoria was
empowered to define the privileges and powers it should
possess, which were declared not to exceed those possessed at
the date of the enactment by the British House of Commons.
The case of Dill v. Murphy [1864 (15) ER 784] revolved
around the powers of the Legislative Assembly of Victoria.
Such powers were held to include the power to punish for
contempt and in the light of the enactment the distinction
between the powers of the House of Commons as a legislative
body and those as a High Court was not applied to weed out
the 'judicial powers', this position being upheld in an appeal to
the Privy Council. Williams J. held:-
"On a closer investigation of all the
authorities and considering the
comprehensive nature of the 35th section,
no restriction as the House of
Commons as a deliberative Assembly, but
of the House of Commons generally, I am
led to the conclusionthat the powers
and privileges of Commons House of
Parliament whether obtained by the lex et
consuetudo Parliamenti or not, whether
as a deliberative Assembly or as a
component part of the Highest Court in
the realm are claimable by the Legislative
Assembly in this Colony."
(Emphasis supplied)
Section 20 of the law establishing the Nova Scotia House
of Assembly provided it with all the powers of the House of
Commons and Section 30 provided that it shall have the same
powers of a Court of Record. The case of Fielding v. Thomas
[1896 AC 600] involved issues concerning the powers of the
said legislature conferred upon it through statutory provisions.
In this case, holding that the House of Assembly's action was
legal based only on section 20, it was held:-
"If it was within the powers of the Nova
Scotia Legislature to enact the provisions
contained in s.20, and the privileges of
the Nova Scotia Legislature are the same
as those of the House of Commons of the
United Kingdom as they existed at the
date of passing of the British North
America Act, 1867, there can be no doubt
that the House of Assembly had complete
power to adjudicate that the respondent
had been guilty of a breach of privilege
and contempt and to punish that breach
by imprisonment. The contempt
complained of was a willful disobedience
to a lawful order of the House to attend."
(Emphasis supplied)
The principle that has been followed in the cases
mentioned above is that where the legislature has the power to
make an enactment and it chooses to have the powers of the
House of Commons, all the powers of the House of Commons,
regardless of which capacity they were enjoyed in, transfer
unto the legislature. This is to say that once there is an
express grant of such powers, there is no justification for
excluding certain powers.
Rooting for the case that the extent of powers
incorporated in the Constitution is of wide amplitude, reliance
has been placed on the following observations of this Court in
the case of Pandit Sharma (I):-
"It is said that the conditions that
prevailed in the dark days of British
history, which led to the Houses of
Parliament to claim their powers,
privileges and immunities, do not now
prevail either in the United Kingdom or in
our country and that there is, therefore,
no reason why we should adopt them in
these democratic days. Our Constitution
clearly provides that until Parliament or
the State Legislature, as the case may be,
makes a law defining the powers,
privileges and immunities of the House,
its members and Committees, they shall
have all the powers, privileges and
immunities of the House of Commons as
at the date of the commencement of our
Constitution and yet to deny them those
powers, privileges and immunities, after
finding that the House of Commons had
them at the relevant time, will be not to
interpret the Constitution but to re-make
it. Nor do we share the view that it will
not be right to entrust our Houses with
these powers, privileges and immunities,
for we are well persuaded that our
Houses, like the House of Commons, will
appreciate the benefit of publicity and will
not exercise the powers, privileges and
immunities except in gross cases."
(Emphasis supplied)
Reading this judgment and constitutional provisions, it
does appear that the Constitution contains in Article 105(3) an
express grant that is subject to no limitations on the powers of
the Parliament. The petitioners, however, contend that the
argument of availability of all the powers and privileges has
already been authoritatively rejected in UP Assembly Case by
this Court and reliance is placed on the following
observations:-
"Mr. Seervai's argument is that the latter
part of Art. 194(3) expressly provides that
all the powers which vested in the House
of Commons at the relevant time, vest in
the House. This broad claim, however,
cannot be accepted in its entirety,
because there are some powers which
cannot obviously be claimed by the
House.. Therefore, it would not
be correct to say that all powers and
privileges which were possessed by the
House of Commons at the relevant time
can be claimed by the House."
(Emphasis supplied)
It does not follow from rejecting the broad claims and
holding that there are some powers of House of Commons
which cannot be claimed by Indian legislatures, that the power
of expulsion falls in that category. A little later we will show
the circumstances which led to UP Assembly case and its
ratio on the point in issue.
On the specific issue of the power to punish for
contempt, learned Counsel have relied on various observations
made in the aforementioned case in support of the proposition
that the legislatures in India are not a Court of Record. It has
been submitted that, relying on the logic of case of UP
Assembly, any privilege that is found to be part of the 'lex et
consuetudo parliamenti' would be unavailable to the Indian
legislatures, because the Indian legislatures cannot claim to be
Courts of Record. In line with the same reasoning, it has been
argued that all that the Indian Legislatures can claim is a
limited power to punish for contempt.
Reliance has been placed on several English cases,
namely Keilley v. Carson [(1842) 4 Moo. PC 63], Fenton v.
Hampton [(1858) 11 MOO PCC 347], Doyle v. Falconer
[1865-67) LR 1 PC 328], and Barton v. Taylor [(1886) 11
App Cases 197]. These cases refer to the distinction between
the punitive powers of contempt and the self-protection
powers. Significantly, while the first two cases related to
conduct of outsiders, the latter two cases related to the
conduct of sitting members. These four cases hold that the
other legislatures, that is to say bodies other than the House
of Commons, can only claim the protective powers of the
House. This distinction has been explained in Doyle as
follows:-
"It is necessary to distinguish between a
power to punish for a contempt, which is
a judicial power, and a power to remove
any obstruction offered to the
deliberations or proper action of a
Legislative body during its sitting, which
last power is necessary for self-
preservation."
It has been submitted on behalf of the petitioners that
Parliament can only claim the protective, limited power to
punish for contempt, that also if committed ex facie. It has
been argued that this limited self-protective power can never
include power of expulsion, as expulsion is not necessary for
the protection of the House. A distinction between expulsion
and exclusion is sought to be brought out to argue that the
measure of exclusion would be sufficient for the protection of
the dignity of the House.
On the other hand, for the respondent it was submitted
that the Privy Council cases referred to above are irrelevant in
as much as they laid down the powers of subordinate or
colonial legislatures, whereas Parliament in India is the
supreme legislative body and the limitations that bind such
subordinate bodies as the former category cannot bind the
latter.
The petitioners, in answer to the above argument, have
referred to the decision of US Supreme Court in the case of
Marshall v. Gordon [243 U.S. 521, 541 (1917)]. The case
related to the contempt powers of the US Congress. The
Congress had charged a District Attorney for contempt. The
question before the Court was as to whether Congress had the
power to do so without a trial and other legal requirements.
The Court held that the US Congress did not have the
'punitive' power of contempt. At page 887, the US Supreme
Court observed:-
"There can be no doubt that the ruling in
the case just stated upheld the existence
of the implied power to punish for
contempt as distinct from legislative
authority and yet flowing from it. It thus
becomes apparent that from a doctrinal
point of view the English rule concerning
legislative bodies generally came to be in
exact accord with that which was
recognized in Anderson v. Dunn, supra, as
belonging to Congress, that is, that in
virtue of the grant of legislative authority
there would be a power implied to deal
with contempt in so far as that authority
was necessary to preserve and carry out
the legislative authority given."
.
"Without undertaking to inclusively
mention the subjects embraced in the
implied power, we think from the very
nature of that power it is clear that it
does not embrace punishment for
contempt as punishment, since it rests
only upon the right of self-preservation,
that is, the right to prevent acts which in
and of themselves inherently obstruct or
prevent the discharge of legislative duty
or the refusal to do that which there is an
inherent legislative power to compel in
order that legislative functions may be
performed."
Placing reliance on the above case, it was also argued by
the petitioners that unless India tends to be "terribly
arrogant", one cannot place the Indian Parliament on a higher
footing than the Congress of the United States. In our view,
there is no place here for arguments of sentiments. It is not
the comparative superiority of the Indian parliament with
respect to either the Colonial Legislatures or the US Congress
that determines the extent of its powers. We would rather be
guided by our constitutional provisions and relevant case law.
The respondents have referred to the case of Yeshwant
Rao v. MP Legislative Assembly [AIR 1967 MP 95], decided
by the Madhya Pradesh High Court. This case involved the
expulsion of two members of the State Legislative Assembly for
obstructing the business of the House and defying the Chair.
This expulsion was challenged in the High Court. It was
argued that the House had no power to expel as the power to
expel in England was part of the power to regulate its own
constitution, which was not available to the House in India. It
was also argued by the Petitioners in that case that the
resolutions expelling them were passed without giving them an
opportunity to explain the allegations. The High Court
dismissed the petition holding that it had the limited
jurisdiction to examine the existence of the power to expel and
found that the House did in fact have this power.
Noticeably, in this case, the High Court did not look into
the power to punish for contempt. It held the Legislative
Assembly's power to expel its member to be an inherent power
for "its protection, self-security and self-preservation and for
the orderly conduct of its business." The High Court was of the
view that:-
"The House of Commons exercises the
power of expelling a member not because
it has the power to regulate its own
constitution but because it finds it
necessary for its proper functioning,
protection and self-preservation to expel a
member who has offered obstruction to
the deliberations of the House during its
sitting by his disorderly conduct or who
has conducted himself in a manner
rendering him unfit to serve as a member
of the Parliament."
The case of Hardwari Lal v. Election Commission of
India etc. [ILR (1977) P&H 269] decided by a full bench of
Punjab & Haryana High Court also related to expulsion of a
sitting member from the legislative assembly of the State of
Haryana. The majority decision in that case held that the
Legislative Assembly does not have the power to expel. The
ratio in that case was identical to the arguments of the
petitioners before us in the present case. The minority view in
the case was, however, that the Legislative Assembly did have
the power to expel as well as the power to punish for
contempt. This view has been commended by the respondents
to us as the correct formulation of law. With respect to the
power to punish for contempt, the minority view has
distinguished the case of UP Assembly on the ground that it
dealt only with non-members and held that the fact that the
power to punish for contempt was sourced from the judicial
functions of the House of Commons is wholly irrelevant. The
minority view says:
"Indeed the source from which the House
of Parliament derives a power to punish
for its contempt may not be in dispute at
all, but it must be remembered that
"House of Parliament" and "House of
Commons' are not synonyms. As already
stated the House of Parliament consists
of the House of Commons, the House of
Lords and the King Emperor (or the
Queen as the case may be). Be that as it
may, if we were to go to the source from
which the Commons derive any particular
power or privilege and then to decide
whether that particular source is or is not
available to the Indian Legislatures in
respect of that privilege, it would be
adopting a course which is wholly foreign
to the language of Article 194(3). Such an
enquiry would be relevant only if we were
to read into Article 194(3) after the words
"at the commencement of this
Constitution", the words "other than
those which are exercised by the
Commons as a descendant of the High
Court of Parliament". There is no
justification at all for reading into Article
194(3) what the Constituent Assembly
did not choose to put therein. Adopting
such a course would, in my opinion, not
be interpreting clause (3) of Article 194,
but re-writing it."
(Emphasis supplied)
The case of K. Anbashagan v. Tamil Nadu Legislative
Assembly [AIR 1988 Mad 275] had similar dispute
concerning powers of the State legislative assembly in Tamil
Nadu. The view taken by the Madras High Court is similar to
the one in Yeshwant Rao decided by the Madhya Pradesh
High Court and the minority view in the Hardwari Lal
decided by Punjab & Haryana High Court. It was held by
Madras High Court that the power of expulsion is available as
a method of disciplining members. However, at no point did
the Court examine the power to punish for contempt. The
Court upheld the power of expulsion independently of the
contempt jurisdiction.
The petitioners referred to the case of UP Assembly,
particularly the passages quoted hereinafter:-
"In considering the nature of these
privileges generally, and particularly the
nature of the privilege claimed by the
House to punish for contempt, it is
necessary to remember the historical
origin of this doctrine of privileges. In this
connection, May has emphasised that the
origin of the modern Parliament consisted
in its judicial functions."
.
"In this connection, it is essential to bear
in mind the fact that the status of a
superior Court of Record which was
accorded to the House of Commons, is
based on historical facts to which we
have already referred. It is a fact of
English history that the Parliament was
discharging judicial functions in its early
career. It is a fact of both historical and
constitutional history in England that the
House of Lords still continues to be the
highest Court of law in the country. It is a
fact of constitutional history even today
that both the Houses possess powers of
impeachment and attainder. It is obvious,
we think, that these historical facts
cannot be introduced in India by any
legal fiction. Appropriate legislative
provisions do occasionally introduce legal
fiction, but there is a limit to the power of
law to introduce such fictions. Law can
introduce fictions as to legal rights and
obligations and as to the retrospective
operation of provisions made in that
behalf; but legal fiction can hardly
introduce historical facts from one
country to another."
.
"The House, and indeed all the Legislative
Assemblies in India never discharged any
judicial function and constitutional
background does not support the claim
that they can be regarded as Courts of
Record in any sense. If that be so, the
very basis on which the English Courts
agreed to treat a general warrant issued
by the House of Commons on the footing
that it was a warrant issued by a superior
Court of Record, is absent in the present
case, and so, it would be unreasonable to
contend that the relevant power to claim
a conclusive character for the general
warrant which the House of Commons,
by agreement, is deemed to possess, is
vested in the House. On this view of the
matter, the claim made by the House
must be rejected."
(Emphasis supplied)
It has been argued that in the face of above-quoted view
of this Court, it cannot be allowed to be argued that that all
the powers of the House of Commons that were enjoyed in its
peculiar judicial capacity can be enjoyed by the legislatures in
India. In our considered view, such broad proposition was
neither the intended interpretation, nor does the judgment
support such a claim.
In above context, it is necessary to recognize the special
circumstances in which case of UP Assembly arose. It
involved the resolutions of the Legislative Assembly in Uttar
Pradesh finding that not only had Keshav Singh committed
contempt of the House, but even the two Judges of the High
Court, by admitting Keshav Singh's writ petition, and indeed
his Advocate, by petitioning the High Court, were guilty of
contempt of the legislature. The resolution further ordered the
Judges of the High Court to be brought before the House in
custody. In response to this resolution, petitions were filed by
the Judges under Article 226. In the wake of these unsavoury
developments involving two organs of the State, the President
of India decided to make a reference to the Supreme Court
under Article 143(1) formulating certain questions on which he
desired advice.
Significantly, the scope of the case was extremely narrow
and limited to the questions placed before the Court. The
Court noticed the narrow limits of the matter in following
words:-
"During the course of the debate, several
propositions were canvassed before us
and very large area of constitutional law
was covered. We ought, therefore, to
make it clear at the outset that in
formulating our answers to the questions
framed by the President in the present
Reference, we propose to deal with only
such points as, in our opinion, have a
direct and material bearing on the
problems posed by the said questions. It
is hardly necessary to emphasise that in
dealing with constitutional matters, the
Court should be slow to deal with
question which do not strictly arise. This
precaution is all the more necessary in
dealing with a reference made to this
Court under Art. 143(1)."
(Emphasis supplied)
The question of the power to punish for contempt was
never even seriously contested before the court. Rather, while
discussing the various contentions raised before it, the Court
noted:-
"It is not seriously disputed by Mr.
Setalvad that the House has the power to
inquire whether its contempt has been
committed by anyone even outside its
four-walls and has the power to impose
punishment for such contempt; but his
argument is that having regard to the
material provisions of our Constitution, it
would not be open to the House to make
a claim that its general warrant should be
treated as conclusive."
(Emphasis supplied)
Thus, in the case of UP Assembly the Court was mainly
concerned with the power claimed by legislature to issue
general warrant and conclusive character thereof. There was
no challenge in that case to the power to punish for contempt,
much less the power to expel, these issues even otherwise
being not inherent in the strict frame of reference made to the
Court.
Indeed, the thrust of the decision was on the examination
of the power to issue unspeaking warrants immune from the
review of the Courts, and not on the power to deal with
contempt itself. A close reading of the case demonstrates that
the Court treated the power to punish for contempt as a
privilege of the House. Speaking of the legislatures in India, it
was stated:-
"there is no doubt that the House has the
power to punish for contempt committed
outside its chamber, and from that point
of view it may claim one of the rights
possessed by a Court of Record"
(Emphasis supplied)
Speaking of the Judges' power to punish for contempt,
the Court observed:-
"We ought never to forget that the power
to punish for contempt large as it is,
must always be exercised cautiously,
wisely and with circumspection. Frequent
or indiscriminate use of this power in
anger of irritation would not help to
sustain the dainty or status of the court,
but may sometimes affect it adversely.
Wise Judges never forget that the best
way to sustain the dignity and status of
their office is to deserve respect from the
public at large by the quality of their
judgments, the fearlessness, fairness and
objectivity of their approach, and by the
restraint, dignity and decorum which
they observe in their judicial conduct. We
venture to think that what is true of the
Judicature is equally true of the
Legislatures."
(Emphasis supplied)
It is evident, therefore, that in the opinion of the Court in
case of UP Assembly, legislatures in India do enjoy the power
to punish for contempt. It is equally clear that the while the
fact that the House of Commons enjoyed the power to issue
unspeaking warrants in its capacity of a Court of Record was
one concern, what actually worried the Court was not the
source of the power per se, but the 'judicial' nature of power to
issue unspeaking warrant insofar as it was directly in conflict
with the scheme of the Constitution whereby citizens were
guaranteed fundamental rights and the power to enforce the
fundamental right is vested in the Courts. It was not the power
to punish for contempt about which the Court had
reservations. Rather, the above-quoted passage shows that
such power had been accepted by the Court. The issue
decided concerned the non-reviewability of the warrant issued
by the legislature, in the light of various constitutional
provisions.
Last, but not the least, there are many differences
between the case of UP Assembly and the one at hand. The
entire controversy in the former case revolved around the
privileges of the House in relation to the fundamental rights of
a citizen, an outsider to the House. The decision expressly
states that the Court was not dealing with internal
proceedings, nor laying down law in relation to members of the
House. In the words of the Court:-
"The obvious answer to this contention is
that we are not dealing with any matter
relating to the internal management of
the House in the present proceedings. We
are dealing with the power of the House
to punish citizens for contempt alleged to
have been committed by them outside the
four-walls of the House, and that
essentially raises different
considerations."
XXXXXXX
"In conclusion, we ought to add that
throughout our discussion we have
consistently attempted to make it clear
that the main point which we are
discussing is the right of the House to
claim that a general warrant issued by it
in respect of its contempt alleged to have
been committed by a citizen who is not a
Member of the House outside the four-
walls of the House, is conclusive, for it is
on that claim that the House has chosen
to take the view that the Judges, the
Advocate, and the party have committed
contempt by reference to the conduct in
the habeas corpus petition pending
before the Lucknow Bench of the
Allahabad High Court."
(Emphasis supplied)
In the light of the above, we are of the opinion that the
ratio of case of UP Assembly, which was decided under
significantly different circumstances, cannot be interpreted to
have held that all the powers of the House of Commons
enjoyed in its capacity as a Court of Record are unavailable to
the Indian parliament, including the power to punish for
contempt.
The view that we are taking is in consonance with the
decisions of this court in the two cases of Pandit Sharma. In
Pandit Sharma (I), this Court upheld the privilege of the
legislative assembly to prevent the publication of its
proceedings and upheld an action for contempt against a
citizen. This decision was reiterated by a larger bench of this
Court in Pandit Sharma (II), when it refused to re-examine
the issues earlier answered in Pandit Sharma (I). The cases
involved contempt action by the legislature against an outsider
curtailing his fundamental rights, and yet the Court refused to
strike down such action.
This view finds further strength from the case of State of
Karnataka v. Union of India [(1977) 4 SCC 608]. This case
involved a challenge to the appointment of a commission of
enquiry against the Chief Minister and other Ministers of
Karnataka. In this context, the Court examined the 'powers' of
the state in relation to Article 194 (3). It would be fruitful to
extract the relevant portions of the decision. They are as
follows:-
"But, apart from an impeachment,
which has become obsolete, or
punishment for contempts of a House,
which constitute only a limited kind of
offences, the Parliament does not punish
the offender. For establishing his legal
liability recourse to ordinary courts of law
is indispensable."
"It is evident, from the Chapter in which
Article 194 occurs as well as the heading
and its marginal note that the "powers"
meant to be indicated here are not
independent. They are powers which
depend upon and are necessary for the
conduct of the business of each House.
They cannot also be expanded into those
of the House of Commons in England for
all purposes. For example, it could not be
contended that each House of a State
Legislature has the same share of
legislative power as the House of
Commons has, as a constituent part of a
completely sovereign legislature. Under
our law it is the Constitution which is
sovereign or supreme. The Parliament as
well as each Legislature of a State in
India enjoys only such legislative powers
as the Constitution confers upon it.
Similarly, each House of Parliament or
State Legislature has such share in
Legislative power as is assigned to it by
the Constitution itself. The powers
conferred on a House of a State
Legislature are distinct from the
legislative powers of either Parliament or
of a State legislature for which, as already
observed, there are separate provisions in
our Constitution. We need not travel
beyond the words of Article 194 itself,
read with other provisions of the
Constitution, to clearly reach such a
conclusion."
"There is, if we may say so, considerable
confusion still in the minds of some
people as to the scope of the undefined
"powers, privileges and immunities" of a
House of a State Legislature so much so
that it has sometimes been imagined that
a House of a State legislature has some
judicial or quasi-judicial powers also,
quite apart from its recognised powers of
punishment for its contempts or the
power of investigations it may carry out
by the appointment of its own
committees."
".A House of Parliament or State
Legislature cannot try anyone or any
case directly, as a Court of Justice can,
but it can proceed quasi-judicially in
cases of contempts of its authority and
take up motions concerning its
"privileges" and "immunities" because,
in doing so, it only seeks removal of
obstructions to the due performance of
its legislative functions. But, if any
question of jurisdiction arises as to
whether a matter falls here or not, it has
to be decided by the ordinary courts in
appropriate proceedings. For example,
the jurisdiction to try a criminal offence,
such as murder, committed even within
a House vests in ordinary criminal
courts and not in a House of Parliament
or in a State legislature."
(Emphasis supplied)
The passage quoted above makes it further clear that the
only limitation the Court recognizes in the power of the
legislatures to punish for contempt is that such contempt
powers cannot be used to divest the ordinary courts of their
jurisdiction. This is in tune with the decision in the case of UP
Assembly. More over, when the Court spoke of the use of
contempt power to remove obstructions to the functioning of
the House, it did not read into it any limitations on the power
to punish for contempt. Rather, the general purpose of its
invocation was recognized.
Thus, we are unable to accept the contention that the
power to punish for contempt is denied to the Indian
legislatures as they are not Courts of Record. However, we
would like to emphasize that the power to punish for contempt
of the House of Commons is a very broad power,
encompassing a variety of other powers. The case of UP
Assembly examined only one aspect of that power to issue
unspeaking warrants and held that such a power is
unavailable under our constitution. What we are presently
examining in the cases at hand is another aspect of this broad
contempt power the power to expel a sitting member. While
we hold that the power to punish for contempt in its totality
has not been struck down by decision in UP Assembly, we do
not intend to rule on the validity of the broad power to punish
for contempt as a whole. The different elements of this broad
contempt power will have to be decided on an independent
scrutiny of validity in appropriate case. We would restrict
ourselves to the power to expel a member for contempt
committed by him. Having found, however, that there is no bar
on reading the power to punish for contempt in Article 105(3),
it is possible to source the power of expulsion through the
same provision.
There is no contest whatsoever to the plea that the House
of Commons did in fact enjoy the power of expulsion at the
commencement of the Constitution. A number of instances
have been quoted even by the petitioners, including those
occurring around the time of the commencement of the
Constitution. To mention some of them, notice may be taken
of case of member named Horatio Bottomley, expelled in 1922
after he was convicted for fraudulent conversion of property;
case of Gary Allighan, expelled in 1947, for gross contempt of
House after publication of an article accusing members of the
House of insobriety and taking fees or bribe for information;
and, the case of Peter Baker, expelled in 1954 from the House
after being convicted and sentenced for forgery.
Although the examples of expulsion in this century by
the House of Commons are few, the relevant time for our
purposes is the date of the commencement of the Constitution.
The last two cases occurring in 1947 and 1954 clearly
establish that the power to expel was in fact a privilege of the
House of Commons at the commencement of our Constitution.
Thus, from this perspective, the power of expulsion can be
read within Article 105(3). We have already held that this
power is not inconsistent with other provisions of the
Constitution.
We may also briefly deal with the other possible sources
of the power of expulsion.
Plea of limited remedial power of Contempt
The next scrutiny concerns the anxiety as to whether the
Parliament possesses only a limited remedial power of
contempt and, if so, whether it can source therefrom the
power of expulsion.
There has been great debate around the cases of Keilley,
Fenton, Doyle and Barton mentioned earlier. We would,
therefore, notice the relevant portions of the decisions
rendered in the said cases.
The case of Keilley arose out of the imprisonment of the
appellant, who allegedly used threatening and insulting
language against a member of the Legislative Assembly of
Newfoundland. His conduct was held to be a breach of
privilege by the Assembly and their powers came up for
scrutiny before the Privy Council. It was found by the court
that the Legislative Assembly of Newfoundland did not have
the power to punish for contempt. The judgment was
delivered by Mr. Baron Parke, who held:-
"The whole question then is reduced to
this,whether by law, the power of
committing for a contempt, not in the
presence of the Assembly, is incident to
every local Legislature. The Statute Law
on this subject being silent, the Common
Law is to govern it; and what is the
Common Law, depends upon principle
and precedent.
Their Lordships see no reason to think,
that in the principle of the Common Law,
any other powers are given them, than
such as are necessary to the existence of
such a body, and the proper exercise of
the functions which it is intended to
execute. These powers are granted by the
very act of its establishment, an act
which on both sides, it is admitted, it was
competent for the Crown to perform.
This is the principle which governs all
legal incidents. "Qunado Lex aliquid
concedit, concedere et illud, sine quo res
ipsa esse non potest." In conformity to
this principle we feel no doubt that such
as Assembly has the right of protecting
itself from all impediments to the due
course of its proceeding. To the full extent
of every measure which it may be really
necessary to adopt, to secure the free
exercise of their Legislative functions,
they are justified in acting by the
principle of the Common Law. But the
power of punishing any one for past
misconduct as a contempt of its
authority, and adjudicating upon the fact
of such a contempt, and the measure of
punishment as a judicial body,
irresponsible to the party accused,
whatever the real facts may be, is of a
very different character, and by no means
essentially necessary for the exercise of
its functions by a local Legislature,
whether representative or not. (234-35)
But the reason why the house of
Commons has this power, is not because
it is a representative body with legislative
functions, but by virtue of ancient usage
and prescription; the lex et consuetude
Parliamenti, which forms a part of the
Common Law of the land, and according
to which the High Court of Parliament,
before its division, and the Houses of
Lords and Commons since, are invested
with many peculiar privileges, that of
punishing for contempt being one. (235)
Nor can the power be said to be incident
to the Legislative Assembly by analogy to
the English Courts of Record which
possess it. This assembly is no Court of
Record, nor has it any judicial functions
whatever' and it is to be remarked, that
all these bodies which possess the power
of adjudication upon, and punishing in a
summary manner, contempts of their
authority, have judicial functions, and
exercise this as incident to those which
they possess, except only the House of
Commons, whose authority, in this
respect, rests upon ancient usage." (235)
(Emphasis supplied)
The above case was followed in Fenton. This action
against the Speaker of the Legislative Assembly of Van
Dieman's Island arose from the allegedly unlawful assault,
seizure and imprisonment of the respondent. The judgment
was pronounced by Lord Chief Baron Pollock on 17th
February, 1858. The case followed Keilley, observing that in
that case:-
"they held that the power of the House of
Commons in England was part of the 'Lex
et consuetudo Parliamenti'; and the
existence of that power in the Commons
of Great Britain did not warrant the
ascribing it to every Supreme Legislative
Council or Assembly in the Colonies. We
think we are bound by the decision of the
case of Keilley v. Carson."
The next case was that of Doyle. This case involved the
power of the Legislative Assembly of Dominica to punish its
member for his conduct in the Assembly. This case followed
Keilley and Fenton holding that the Assembly had no power
to punish for contempt. The judgment was delivered by Sir
James Colvile. It was observed:-
"Keilley v. Carsonmust here be taken to
have decided conclusively that the
Legislative Assemblies in the British
Colonies have, in the absence of express
grant, no power to adjudicate upon, or
punish for, contempts committed beyond
their walls. (339)
The privileges of the House of Commons,
that of punishing for contempt being one,
belong to it by virtue of lex et consuetude
Parliamenti, which is a law peculiar to
and inherent in two Houses of Parliament
of the United Kingdom. It cannot
therefore, be inferred from the possession
of certain powers by the house of
Commons, by virtue of that ancient usage
and prescription, that the like powers
belong to Legislative Assemblies of
comparatively recent creation in the
dependencies of the Crown. (339)
Again, there is no resemblance between a
Colonial House of Assembly, being a body
which has no judicial functions, and a
Court of Justice, being a Court of Record.
There is, therefore, no ground for saying
that the power of punishing for contempt,
because it is admitted to be inherent in
the one, must be taken by analogy to be
inherent in the other." (339)
Is the power to punish and commit for
contempts committed in its presence one
necessary to the existence of such a body
as the Assembly of Dominica, and the
proper exercise of the functions which it
is intended to execute? It is necessary to
distinguish between a power to punish
for a contempt, which is a judicial power,
and a power to remove any obstruction
offered to the deliberations or proper
action of a Legislative body during its
sitting, which last power is necessary for
self-preservation. If a Member of a
Colonial House of Assembly is guilty of
disorderly conduct in the House whilst
sitting, he may be removed, or excluded
for a time, or even expelled; but there is a
great difference between such powers and
the judicial power of inflicting a penal-
sentence for the offence. The right to
remove for self-security is one thing, the
right to inflict punishment another." (340)
Finally, in Barton, it involved the suspension of a
member from the Legislative Assembly of New South Wales.
The power of suspension for an indefinite time was held to be
unavailable to the Legislative Assembly as it was said to have
trespassed into the punitive field. The judgment was delivered
by the Earl of Selborne. Referring to the cases of Keilley and
Doyle, the Court observed:-
"It results from those authorities that no
powers of that kind are incident to or
inherent in a Colonial Legislative
Assembly (without express grant), except
'such as are necessary to the existence of
such a body, and the proper exercise of
the functions which it is intended to
execute'.
Powers to suspend toties quoties, sitting
after sitting, in case of repeated offences
(and, if may be, till submission or
apology), and also to expel for aggravated
or persistent misconduct, appear to be
sufficient to meet even the extreme case
of a member whose conduct is habitually
obstructive or disorderly. To argue that
expulsion is the greater power, and
suspension the less, and that the greater
must include all degrees of the less,
seems to their Lordships fallacious. The
rights of constituents ought not, in a
question of this kind, to be left out of
sight. Those rights would be much more
seriously interfered with by an
unnecessarily prolonged suspension then
by expulsion, after which a new election
would immediately be held."
(Emphasis supplied)
The Court went on to examine what is necessary and
found that an indefinite suspension could never be considered
necessary.
The learned Counsel for the petitioners have relied on the
above distinction and submitted that the limited power does
not envisage expulsion and can only be used for ex facie
contempts.
We are not persuaded to subscribe to the propositions
advanced on behalf of the petitioners. Even if we were to
accept this distinction as applicable to the Indian parliament,
in our opinion, the power to expel would be available.
Firstly, the case of Barton, which allows only a limited
power to punish for contempt, finds that even though the
Legislative Assembly does not have the power to indefinitely
suspend, as that was punitive in nature, the Assembly would
have the power to expel, considering expulsion a non-punitive
power. Secondly, the objection that the limited power could
only deal with ex facie contempt, is not tenable.
In the above context, reference may be made to the case
of Hartnett v. Crick [(1908) AC 470]. This case involved the
suspension of a member of the Legislative Assembly of New
South Wales until the verdict of the jury in the pending
criminal trial against the Member had been delivered. The
suspension was challenged. When the matter came up before
the Privy Council, the Respondents argued that:-
"The Legislative Assembly had no
inherent power to pass [the standing
order]. Its inherent powers were limited to
protective and defensive measures
necessary for the proper exercise of its
functions and the conduct of its
business. They did not extend to punitive
measures in the absence of express
statutory power in that behalf, but only
to protective measures.The fact that a
criminal charge is pending against the
respondent does not affect or obstruct the
course of business in the Chamber or
relate to its orderly conduct."
This argument was rejected and the House of Lords
allowed the appeal. Lord Macnaghten, delivering the judgment,
initially observed that:-
".no one would probably contend that
the orderly conduct of the Assembly
would be disturbed or affected by the
mere fact that a criminal charge is
pending against a Member of the House"
(475)
But he found that certain peculiar circumstances of the
case deserved to be given weight. The Court went on to hold
thus:-
"If the House itself has taken the less
favourable view of the plaintiff's attitude
[an insult and challenge to the house],
and has judged that the occasion justified
temporary suspension, not by way of
punishment, but in self-defence, it seems
impossible for the Court to declare that
the House was so wrong in its judgment,
and the standing order and the resolution
founded upon it so foreign to the purpose
contemplated by the Act, that the
proceedings must be declared
invalid."(476)
(Emphasis supplied)
The above case thus establishes that even if the House of
legislature has limited powers, such power is not only
restricted to ex facie contempts, but even acts committed
outside the House. It is open to the assembly to use its power
for "protective" purposes, and the acts that it can act upon are
not only those that are committed in the House, but upon
anything that lowers the dignity of the House. Thus, the
petitioners' submission that House only has the power to
remove obstructions during its proceedings cannot be
accepted.
It is axiomatic to state that expulsion is always in respect
of a member. At the same time, it needs to be borne in mind
that a member is part of the House due to which his or her
conduct always has a direct bearing upon the perception of
the House. Any legislative body must act through its members
and the connection between the conduct of the members and
the perception of the House is strong. We, therefore, conclude
that even if the Parliament had only the limited remedial
power to punish for contempt, the power to expel would be
well within the limits of such remedial contempt power.
We are unable to find any reason as to why legislatures
established in India by the Constitution, including the
Parliament under Article 105 (3), should be denied the claim to
the power of expulsion arising out of remedial power of
contempt.
Principle of necessity
Learned Counsel for Union of India and the learned
Additional Solicitor General also submitted that the power of
expulsion of a sitting member is an inherent right of every
legislature on the ground of necessity. The argument is that
'necessity' as a source of the power of expulsion, is also
available to a House for expulsion of one of its members, as
such power is 'necessary' for the functioning of the House.
The petitioners, on the other hand, argued that expulsion can
never be considered 'necessary' or a 'self protective' power and,
therefore, it cannot be claimed by the House.
In view of our interpretation of Article 105(3) of the
Constitution, it is not essential to determine the question
whether 'necessity' as an independent source of power, apart
from the power of the House to punish for contempt, by
expulsion of a member, is available or not. We may note that
number of judgments were cited in support of the respective
view points.
Further, the Petitioners have also relied on the fact that
Australia has passed a law taking away the power of
expulsion. It is true that Section 4 of the Parliamentary
Privileges Act, 1987 removed the power to expel from the
Houses of the Commonwealth Parliament in Australia. The
Act was passed on the recommendation of the Parliament's
Joint Select Committee on Parliamentary Privilege. Enid
Campbell, the eminent authority on Australian Parliamentary
privilege writes, "The Committee so recommended because of
the potential abuse of the power, because of the specific
provisions in the federal Constitution on disqualification of
members, 'and on the basic consideration that it is for the
electors, not members, to decide on the composition of
Parliament'."
Odger's Australian Senate Practice further clarifies
the basis for the Joint Select Committee's recommendation :
"The 1984 report of the Joint Select
Committee on Parliamentary Privilege
recommended that the power of a House
to expel its members be abolished. The
rationale of this recommendation was
that the disqualification of members is
covered by the Constitution and by the
electoral legislation, and if a member is
not disqualified the question of whether
the member is otherwise unfit for
membership of a House should be left to
the electorate. The committee was also
influenced by the only instance of the
expulsion of a member of a House off the
Commonwealth Parliament, that of a
member of the House of Representatives
in 1920 for allegedly seditious words
uttered outside the House. This case had
long been regarded as an instance of
improper use of the power (see, for
example, E. Campbell, Parliamentary
Privilege in Australia, MUP, 1966, pp.104-
05 (Odger's Australian Senate Practice
11th Edition, 56-57).
The Australian Joint Committee Report itself weighs the
dangers of misuse of expulsion against any potential need for
expulsion and definitively recommends its abolition :
"This danger [i.e. misuse by the majority]
can never be eradicated and the fact that
the only case in federal history when the
power to expel was exercised is a case
when, we think, the power was
demonstrably misused is a compelling
argument for its abolition. But the
argument for abolition of the power to
expel does not depend simply on the
great potential for abuse and the harm
such abuse can occasion. There are
other considerations. Firstly, there are
the detailed provisions in the
Constitution. In short, we already have
something approaching a statutory code
of disqualification. Secondly, it is the
electors in a constituency or in a State
who decide on representation. In
principle, we think it wrong that the
institution to which the person has been
elected should be able to reverse the
decision of his constituents. If expelled
he may stand for re-election but, as we
have said, the damage occasioned by his
expulsion may render his prospects of re-
election negligible. Thirdly, the Houses
still retain the wide powers to discipline
Members. Members guilty of a breach of
privilege or other contempt may be
committed, or fined These sanctions
seem drastic enough. They may also be
suspended or censured by their House."
The aforesaid approach adopted in Australia is entirely
for the Parliament to consider and examine, if so advised. In
so far as this Court is concerned, since India does not have a
law that codifies the privileges of the Parliament, nothing
turns on the basis of the Australian legislation.
Argument of Parliamentary practice
During the course of arguments it was brought out that
since the date of commencement of the Constitution of India
there have been three occasions when the Houses of
Parliament have resorted to expulsion of the sitting Member.
Out of these three occasions, two pertained to Members of Lok
Sabha.
The first such case came on 8th June 1951 when the 1st
Lok Sabha resolved to expel Mr. H.G. Mudgal for having
engaged himself in conduct that was derogatory to the dignity
of the House and inconsistent with the standard which
Parliament is entitled to expect from its members. The second
occasion of expulsion came in 6th Lok Sabha, when by a
resolution adopted on 19th December 1978, it resolved to agree
with the recommendations and findings of the Committee of
Privileges and on the basis thereof ordered expulsion of Mrs.
Indira Gandhi along with two others (Mr. R.K. Dhawan and
Mr. D. Sen) from the membership of the House having found
them guilty of breach of privilege of the House. The third case
pertains to Rajya Sabha when expulsion of Mr. Subramanium
Swamy was ordered on 15th November 1976.
The above-mentioned three instances of expulsion from
the Houses of Parliament have been referred to by the learned
counsel for Union of India in support of his argument that
expulsion of a Member of Parliament has not been ordered for
the first time and that it is now part of Parliamentary practice
that the Houses of Parliament can expel their respective
members for conduct considered unfit and unworthy of a
Member. On the other hand, the learned counsel for the
petitioners would refer to these very instances to quote certain
observations in the course of debates in the Parliament to
buttress their plea that the Parliamentary practice in India is
against resort to the extreme penalty of expulsion from
amongst the sanctions that may be exercised in cases of
breach of privileges by the House of Commons.
The facts of the case of expulsion of Mr. Subramaniam
Swamy from Rajya Sabha are narrated by Subhash C.
Kashyap in his 'Parliamentary Procedure' (Vol. 2, p. 1657). It
appears that Rajya Sabha adopted a motion on 2nd September
1976 appointing a Committee to investigate the conduct and
activities of the said member, within and outside the country,
including alleged anti-India propaganda calculated to bring
into disrepute Parliament and other democratic institutions of
the country and generally behaving in a manner unworthy of a
member. The Committee presented report on 12th November
1976 recommending expulsion as his conduct was found to be
derogatory to the dignity of the House and inconsistent with
the standards which it was entitled to expect from its
members. On 15th November 1976, a motion was adopted by
Rajya Sabha expelling the member.
Coming to the cases of expulsion from Lok Sabha, the
facts of the case of Mr. H.G. Mudgal have been summarized at
page 262 in Practice and Procedure of Parliament by Kaul and
Shakder (5th Edn.). Mr. H.G. Mudgal was charged with having
engaged himself in "certain dealings with the Bombay Bullion
Association which include canvassing support and making
propaganda in Parliament on problems like option business,
stamp duty etc. and receipt of financial or business
advantages from the Bombay Bullion Association" in the
discharge of his duty in Parliament. On 8 June, 1951, a
motion for appointment of a Committee to investigate the
conduct and activities of the member was adopted by Lok
Sabha. The Committee, after inquiry, held that the conduct of
the member was derogatory to the dignity of the House and
inconsistent with the standard which Parliament was entitled
to expect from its members. In pursuance of the report of the
Committee, a motion was brought before the House on 24
September, 1951, to expel Mr. Mudgal from the House. The
member, after participating in the debate, submitted his
resignation to the Deputy Speaker.
When the report of the Committee was being debated, Pt.
Jawahar Lal Nehru, the then Prime Minister of India, spoke at
length on the subject. His speech rendered in Parliament on
24th September 1951 dealt with the facts of the case as also
his views on the law on the subject. After noticing that in the
Constitution of India no particular course is laid down in
regard to such matters inasmuch as Article 105(3) refers one
back to the practice in the British House of Commons, this is
what he had to say :-
".. this House as a sovereign
Parliament must have inherently the
right to deal with its own problems as it
chooses and I cannot imagine anybody
doubting that fact. This particular article
throws you back for guidance to the
practice in the British House of
Commons. There is no doubt as to what
the practice in the House of Commons of
the Parliament in the U.K. has been and
is. Cases have occurred from time to
time there, when the House of Commons
has appointed a Committee and taken
action
..
So there is no doubt that this House
is entitled inherently and also if reference
be made to the terms of article 105 to
take such steps according to the British
practice and expel such a Member from
the House.
The question arises whether in the
present case this should be done or
something else. I do submit that it is
perfectly clear that this case is not even a
case which might be called a marginal
case, where people may have two
opinions about it, where one may have
doubts if a certain course suggested is
much too severe. The case, if I may say
so, is as bad as it could well be. If we
consider even such a case as a marginal
case or as one where perhaps a certain
amount of laxity might be shown, I think
it will be unfortunate from a variety of
points of view, more especially because,
this being the first case of its kind coming
up before the House, if the House does
not express its will in such matters in
clear, unambiguous and forceful terms,
then doubts may very well arise in the
public mind as to whether the House is
very definite about such matters or not.
Therefore, I do submit that it has become
a duty for us and an obligation to be
clear, precise and definite. The facts are
clear and precise and the decision should
also be clear and precise and
unambiguous. And I submit the decision
of the House should be after accepting
the finding of this report, to resolve that
the Member should be expelled from the
House. Therefore, I beg to move:
'That this House, having considered
the Report of the Committee
appointed on the 8th June, 1951 to
investigate into the conduct of Shri
H.G. Mudgal, Member of Parliament,
accepts the finding of the Committee
that the conduct of Shri Mudgal is
derogatory to the dignity of the
House and inconsistent with the
standard which Parliament is
entitled to expect from its Members,
and resolves that Shri Mudgal be
expelled from the House'."
On 25th September 1951, the House deprecated the
attempt of the member to circumvent the effect of the motion
and unanimously adopted an amended motion that read as
follows:-
"That this House, having considered the
Report of the Committee appointed on the
8th June, 1951, to investigate the conduct
of Shri H.G. Mudgal, Member of
Parliament, accepts the findings of the
Committee that the conduct of Shri
Mudgal is derogatory to the dignity of the
House and inconsistent with the
standard which Parliament is entitled to
expect from its members, and resolves
that Shri Mudgal deserved expulsion from
the House and further that the terms of
the resignation letter he has given to the
Deputy Speaker at the conclusion of his
statement constitute a contempt of this
House which only aggravates his offence".
The facts of the matter leading to expulsion of Mrs. Indira
Gandhi and two others are summarized at page 263 in
Practice and Procedure of Parliament by Kaul and Shakder (5th
Edn.). On 18th November 1977, a motion was adopted by the
House referring to the Committee of Privileges a question of
breach of privilege and contempt of the House against Mrs.
Indira Gandhi, former Prime Minister, and others regarding
obstruction, intimidation, harassment and institution of false
cases by Mrs. Gandhi and others against certain officials.
The Committee of Privileges were of the view that Mrs.
Indira Gandhi had committed a breach of privilege and
contempt of the House by causing obstruction, intimidation,
harassment and institution of false cases against the
concerned officers who were collecting information for answer
to a certain question in the House. The Committee
recommended that Mrs. Indira Gandhi deserved punishment
for the serious breach of privilege and contempt of the House
committed by her but left it to the collective wisdom of the
House to award such punishment as it may deem fit.
A resolution was moved to inflict the punishment of
committal and expulsion. In the course of debate on the
motion, Mr. C.M. Stephen, Leader of the Opposition, inter alia,
inviting attention to the full Bench decision of Punjab &
Haryana High Court in the case of Hardwari Lal [ILR (1977)
2 P&H 269] stated that the proposal to expel was "not
countenanced by the Constitution" and the House had no
power to expel an elected member. Mr. K.S. Hegde, the
Speaker, acknowledged the importance of the constitutional
arguments advanced by Mr. C.M. Stephen. On 19th December
1978, the House adopted a motion resolving that Mrs. Indira
Gandhi be committed to jail till the prorogation of the House
and also be expelled from the membership of the House for the
serious breach of privilege and contempt of the House
committed by her.
What was done by the 6th Lok Sabha through the
resolution adopted on 19th December 1978 was undone by the
7th Lok Sabha. It discussed the propriety of the earlier
decision. Certain speeches rendered in the course of the
debate have been relied upon, in extenso, by the learned
counsel and may be taken note of. Mr. B.R. Bhagat spoke
thus:-
"They have committed an error. I am not
going into the morality of it, because I am
on a stronger ground. It is illegal because
there is no jurisdiction.
Coming to the third point the
determination of guilt and adjudication
they are judicial functions in many
countries and, therefore question of
breach of privilege, contempt of the
House, punishment etc. are decided in
the courts of law in them. Only we have
followed the parliamentary system the
Westminster type. In the House of
Commons there the House itself deals
with breach of its privileges, and we have
taken it from them. Therefore, here the
breach of privilege is punished by the
House. But in many other countries
almost all other countries if I may say so,
any breach of privilege of the House is
punished by the courts and therefore, the
point I am making is that the procedure
followed in the Privilege Committee is
very important. The law of privileges, as I
said is a form of criminal law and I was
making this point that excepting the
House of Commons and here we have
taken the precedents and conventions
from the House of Commons in regard
to all other Parliaments this offence or
the contempt of the House or the breach
of privilege of the House is punished by
the courts and therefore, essentially the
law of privileges is a form of criminal law
and often a citizen and his Fundamental
Rights may clash with the concepts of the
dignity of the House and the Legislatures,
their committees and Members. The
essence of criminal law is that it is easily
ascertainable. The law of privileges on the
other hand is bound to remain vague and
somewhat uncertain unless codified. And
here, it has not been codified except in
Rule 222. Whereas in India following the
British practices the House itself judges
the matter it is important to ensure that
the strictest judicial standards and
judicial procedures are followed. This is
very important because my point is that
in the Privileges Committee the
deliberations were neither judicial nor
impartial nor objective, and they did not
follow any established rules of procedure
for even the principles of equity and
natural justice. They were not applied in
dealing with this matter in the case of
Mrs. Gandhi and the two officers and the
principal that justice should not only be
done but also seem to have been done is
totally lacking in this case. Nothing that
smacks of political vendetta should be
allowed to cloud a judgment as even the
slightest suspicion of the Committee of
Privileges of the House acting on political
consideration or on the strength of the
majority party etc. may tend to destroy
the sanctity and value of the privileges of
the Parliament.
Now, I am dealing only with the
deliberations of the Committee. When the
matter comes before House, then I will
come with it separately. In that, political
vendetta governed the Members of the
Committee. If you take the previous
precedents either here in this Parliament,
or in the House of Commons or in other
Parliaments, you will find that the
decisions of the Privileges Committee
were unanimous. They are not on party
lines. But in this particular case, not
only the decisions were on party lines,
but there were as many as 6 or 7 Notes
many of them were votes of dissent
though they were not called as such
because this is another matter which I
want to refer quoting: "Under the
Directions of the Speaker" 'there shall be
no Minute of Dissent to the report of a
parliamentary committee this is a
parliamentary committee 'except the
select committee'. In a Select Committee
or a Joint Select Committee Minutes of
Dissent are appended. In other
parliamentary committees the Privileges
Committee is a parliamentary committee
under Direction 68(3), "There shall be
no minute of dissent to the report".
The idea is that the deliberations in
these committees should be objective,
impartial and should not be carried on
party or political lines. In this matter
there are as many as six notes they are
called 'notes' because they cannot be
minutes of dissent and four of them have
completely differed, totally different with
the findings of the Committee. Seven
Members were from the ruling party. This
reflects the composition of the
Committee. They have taken one line. I
will come to that point later when I deal
with the matter, how the matter was
adopted in the House. How it was taken
and how political and party
considerations prevailed. That is against
the spirit and law of Parliamentary
Privileges. In the Committee too, Mrs.
Gandhi said that the whole atmosphere is
political and partisan, the Members o the
Privileges Committee, the Members of the
ruling party, the Janata Party have been
totally guided by a vindictive attitude, an
attitude of vendetta or vengeance or
revenge to put her in prison or to punish
her."
Xxxxxxxxxxxxxxx
"Rule 72 of the Rules of Procedure is
only, as I said earlier, an enabling
provision inasmuch as the Committee of
Privileges may administer an oath or
affirmation to a witness. It does not mean
that every witness is bound to take an
oath. In any case, it does not apply to an
accused. Every accused must be given
the fullest opportunity of self-defence. He
should be allowed to be represented
before the Committee by a counsel of his
or her choice to lead evidence and to
cross-examine witnesses and, further, the
benefit of doubt must go to an accused.
This is the law.
Earlier, in the Mudgal case, we have
a precedent. The Committee of the House
gave an opportunity to the accused. He
was allowed the services of a counsel, to
cross-examine witnesses, to present his
own witnesses and to lead his defence
through his counsel. The Committee was
also assailed by the Attorney-General
throughout the examination of the
matter. This was not given to Mrs. Indira
Gandhi. This also clearly indicates the
motivations in the Privileges Committee.
Again, the punishment for a breach
of privileges in recent times, this
maximum punishment, this double
punishment of expulsion and
imprisonment, is unheard of an
unprecedented. The recent trend all over
the world is that the House takes as few
cases of privilege as possible. The
minimum punishment is that of either
reprimand or admonition. In this matter
also, the majority decision of the
Privileges Committee showed a bias or
rather a vendetta."
Mr. A.K. Sen, in his speech was more concerned about
the fairness of the procedure that had been adopted by the
Committee on Privileges before ordering expulsion of Mrs.
Gandhi and others. He stated as under :-
"I remember when Charles the First was
arraigned before the court which was set
up by the Cromwell's Government, at the
end of the trial, he was asked whether he
had anything to plead by way of defence.
The famous words he uttered were these.
I do not think I can repeat them word by
word, but I would repeat the substance.
He said "To whom shall I plead my
defence? I only find accusers and no
Judges". So this is what happened when
Mrs. Gandhi appeared before this august
Committee. Excepting a few who had the
courage to record their notes of dissent,
the minds of the rest had already been
made up. This is very clear from the
utterances which came from them
outside the Parliament, before and after
the elections and from the way they were
trying to manipulate the entire matter."
xxxxxxxxxxxxxxxxxxx
"Sir, the Supreme Court in a series of
decisions started from Sharma's case laid
down very clearly that the privileges
cannot violate the Fundamental rights of
a citizen. Therefore, if a citizen has the
right not to be a witness against a sin or
not to be bullied into cross-examination,
then that right cannot be taken away in
the name of a privilege. You can convict
her or you can verdict him by only
evidence, but not by her own hand. Our
law forbids a person to be compelled to
drink a cup of poison. The Plutonic
experiment would not be tolerated under
our laws. No accused can be said: 'You
take the cup of poison and swallow it.' He
has to be tried and he has to be
sentenced according to the law."
Mr. Jagan Nath Kaushal also referred to the case of
Hardwari Lal and then said :-
"When Mrs. Gandhi's case was before the
Parliament, that judgment was in the
field. But nobody just cared to look at
that. The reason is obvious, and the
reason has been given by the friends who
have spoken. The reason is, we had a
pre-determined judge who was not in a
mood to listen to any voice of reason and
I say it is a very sad day when we have to
deal with pre-determined judges. I can
understand a judge not knowing the law,
but it is just unthinkable that a judge
should come to the seat of justice with a
pre-determined mind to convict the
person who is standing before him in the
capacity of an unfortunate accused. It is
the negation of notions of justice.
Therefore, what happened at that time
was that not only Mrs. Gandhi was
punished with imprisonment, but she
was also expelled."
The resolution adopted on 19th December 1978 by the 6th
Lok Sabha was rescinded on 7th May 1981 by the 7th Lok
Sabha that adopted the following resolution:-
"(a) the said proceedings of the
Committee and the House shall not
constitute a precedent in the law of
parliamentary privileges;
(b) the findings of the Committee and the
decision of the House are inconsistent
with and violative of the well-accepted
principles of the law of Parliamentary
privilege and the basic safeguards
assured to all enshrined in the
Constitution; and
(c) Smt. Indira Gandhi, Shri R.K. Dhawan
and Shri D. Sen were innocent of the
charges leveled against them.
And accordingly this House:
Rescinds the resolution adopted by the
Sixth Lok Sabha on the 19th December,
1978."
It is the argument of the learned counsel for petitioners
that the resolution adopted on 7th May 1981 by Lok Sabha
clearly shows that resort to expulsion of a sitting elected
member of the House was against parliamentary rules,
precedents and conventions and an act of betrayal of the
electorate and abuse by brute majoritarian forces. In this
context, the learned counsel would point out that reference
was made repeatedly in the course of debate by the Members
of Lok Sabha, to the majority view of Punjab & Haryana High
Court in the case of Hardwari Lal. The learned counsel
would submit that Lok Sabha had itself resolved that the
proceedings of the Privileges Committee and of the House in
the case of expulsion of Mrs. Gandhi shall not constitute a
precedent in the law of parliamentary privileges. They argue
that in the teeth of such a resolution, it was not permissible
for the Parliament to have again resolved in December 2005 to
expel the petitioners from the membership of the two Houses.
In our considered view, the opinion expressed by the
Members of Parliament in May 1981, or for that matter in
December 1978, as indeed in June 1951 merely represent
their respective understanding of the law of privileges. These
views are not law on the subject by the Parliament in exercise
of its enabling power under the second part of Article 105(3). It
cannot be said, given the case of expulsion of Mudgal in 1951,
that the parliamentary practice in India is wholly against
resort to the sanction of expulsion for breach of privileges
under Article 105.
On the question whether power of expulsion exists or
not, divergent views have been expressed by learned members
in the Parliament. These views deserve to be respected but on
the question whether there exists power of expulsion is a
matter of interpretation of the constitutional provisions, in
particular Article 105(3) and Article 194(3) on which the final
arbiter is this Court and not the Parliament.
Judicial Review Manner of Exercise Law in England
Having held that the power of expulsion can be claimed
by Indian legislature as one of the privileges inherited from the
House of Commons through Article 105(3), the next question
that arises is whether under our jurisprudence is it open to
the court to examine the manner of exercise of the said power
by Parliament as has been sought by the petitioners.
The learned counsel for Union of India, as indeed the
learned Additional Solicitor General, were at pains to submit
that the matter falls within the exclusive cognizance of the
legislature, intrusion wherein for purposes of judicial review of
the procedure adopted has always been consistently avoided
by the judicature in England from where the power of
expulsion has been sourced as also expressly prohibited by
the constitutional provisions.
The principal arguments on behalf of the Union of India
and of the learned Additional Solicitor General on the plea of
ouster of the court's jurisdiction is that in essence, the
position with regard to justiciability of exercise of
Parliamentary privilege is exactly the same in India as what
exists in England. As seen in Bradlaugh v. Gossett, Courts in
England have recognized the Parliamentary Privilege of
exclusive cognizance over its own proceedings, whereby Courts
will examine existence of a privilege but will decline to interfere
with the manner of its exercise.
The contention of the petitioners, on the other hand, is
that the arguments opposing the judicial review ignore both
the impact in the Indian context of existence of a written
Constitution, as well as the express provisions thereof. It has
been submitted that the English decisions, including
Bradlaugh, cannot be transplanted into the Indian
Constitution and are irrelevant as the position of Parliament in
the United Kingdom is entirely different from that of the Indian
Parliament which is functioning under the Constitution and
powers of which are circumscribed by the Constitution, which
is supreme and not the Parliament.
Against the backdrop of challenge to the jurisdiction of
the court to examine the action of the legislature in the matter
arising out of its privilege and power to punish for contempt,
this court in the case of UP Assembly took note of the law laid
down in a series of cases that came up in England during the
turbulent years of struggle of House of the Commons to assert
its privileges. {Earl of Shaftesbury (86 E.R. 792), Ashby v.
White [(1703-04) 92 E.R. 129], R. v. Paty [(1704) 92 E.R.
232], Case of Murray (95 E.R. 629), Case of Brass Crosby
(95 E.R. 1005), Case of Sir Francis Burdett (104 E.R. 501),
Cases of Stockdale (1836-37), Howard v. Sir William
Gosset (116 E.R. 139) and Bradlaugh v. Gossett [(1884)
L.R. 12 Q.B.D. 271]}.
The learned counsel for Union of India quoted extensively
from the judgment in Bradlaugh, mainly the passages
mentioned hereinafter.
Lord Colridge CJ observed at page 275 thus:-
"------------there is another proposition
equally true, equally well established,
seems to be decisive of the case before us.
What is said or done within the walls of
Parliament cannot be inquired into in a
court of law. On this point all the judges
in the two great cases which exhaust the
learning on the subject, - Burdett v.
Abbott (14 East, 1, 148) and Stockdale v.
Hansard (9 Ad. & E.I); - are agreed, and
are emphatic. The jurisdiction of the
Houses over their own members, their
right to impose discipline within their
walls, is absolute and exclusive. To use
the words of Lord Ellenborough, "They
would sink into utter contempt and
inefficiency without it".(14 East, at
p.152.)"
Stephen J., at page 278, was categorical in his view that
"the House of Commons is not subject to the control of her
Majesty's courts in its administration of that part of the
statute law which has relation to its own internal
proceedings" and referred in this context to the following:-
"Blackstone says (1 Com.163): "The whole
of the law and custom of Parliament has
its original form this one maxim, 'that
whatever matter arises concerning either
House of Parliament ought to be
examined, discussed, and adjudged in
that House to which it relates, and not
elsewhere." This principle is re-stated
nearly in Blackstone's words by each of
the judges in the case of Stockdale v.
Hansard. (9 Ad. & E.1.)"
Then, at page 279, Stephen J. copiously quoted from
Stockdale as under:-
"Lord Denman says (9 Ad. & E. at p. 114)
"Whatever is done within the walls of
either assembly must pass without
question in any other place." Littledale,
J. says (At p.162) : "It is said the House of
commons is the sole judge of its own
privileges; and so I admit as far as the
proceedings in the House and some other
things are concerned." Patteson, J. said
(at p.209) "Beyond all dispute, it is
necessary that the proceedings of each
house of Parliament should be entirely
free and unshackled that whatever is said
or done in either House should not be
liable to examination elsewhere." And
Coldridge, J. said (at p.233) : " That the
House should have exclusive jurisdiction
to regulate the course of its own
proceedings and animadvert upon any
conduct there in violation of its rules or
derogation from its dignity, stands upon
the clearest grounds of necessity."
Further, at page 285 Stephen J. observed thus:-
"I do not say that the resolution of the
House is the judgment of a Court not
subject to our revision; but it has much
in common with such a judgment. The
House of Commons is not a Court of
Justice; but the effect of its privilege to
regulate its own internal concerns
practically invests it with a judicial
character when it has to apply to
particular cases the provisions of Acts of
Parliament. We must presume that it
discharges this function properly and
with due regard to the laws, in the
making of which it has so great a share.
If its determination is not in accordance
with law, this resembles the case of an
error by a judge whose decision is not
subject to appeal."
(Emphasis supplied)
On the basis of appraisal of the law in the
aforementioned series of cases, this court summarized the
position in the law of England on the question of jurisdiction
of the court in matters arising out of contempt jurisdiction of
the legislature, in the following words at page 482:-
"108. Having examined the relevant
decisions bearing on the point, it would,
we think, not be inaccurate to observe
that the right claimed by the House of
Commons not to have its general
warrants examined in habeas corpus
proceedings has been based more on the
consideration that the House of
Commons is in the position of a superior
Court of Record and has the right like
other superior courts of record to issue a
general warrant for commitment or
persons found guilty of contempt. Like
the general warrant issued by superior
courts of record in respect of such
contempt, the general warrants issued by
the House of Commons in similar
situations should be similarly treated. It
is on that ground that the general
warrants issued by the House of
Commons were treated beyond the
scrutiny of the courts in habeas corpus
proceedings. In this connection, we ought
to add that even while recognising the
validity of such general warrants, Judges
have frequently observed that if they were
satisfied upon the return that such
general warrants were issued for frivolous
or extravagant reasons, it would be open
to them to examine their validity."
(Emphasis supplied)
The case of Prebble has been mentioned earlier. The
observations of Privy Council (at page 976 and 980 of the
judgment) have been extracted in earlier part of this judgment.
They have been referred to by the learned counsel for Union of
India for present purposes as well. The principle of law and
practice that the courts will not allow any challenge to be
made to what is said or done within the walls of Parliament in
performance of its legislative functions and protection of its
established privileges was reiterated in this case on the basis
of, amongst others, the cases of Burdett, Stockdale and
Bradlaugh.
Learned counsel for Union of India and learned
Additional Solicitor General, submit that in the case of UP
Assembly, this court was dealing mainly with the powers of
the courts under Article 32 and 226 of the Constitution of
India to entertain petitions challenging legality of committal for
contempt of State legislature on the grounds of breach of
fundamental rights of non-members. The learned counsel
drew our attention to certain observations made, at page 481-
482 of the judgment, which read as under:-
"Mr. Seervai's argument was that though
the resolution appeared to constitute an
infringement of the Parliamentary Oaths
Act, the Court refused to give any relief to
Bradlaugh, and he suggested that a
similar approach should be adopted in
dealing with the present dispute before
us. The obvious answer to this
contention is that we are not dealing with
any matter relating to the internal
management of the House in the present
proceedings. We are dealing with the
power of the House to punish citizens for
contempt alleged to have been committed
by them outside the four walls of the
House, and that essentially raises
different considerations."
(Emphasis supplied)
The submission of the learned counsel is that the
view in Bradlaugh that matters of internal management
were beyond the purview of judicial scrutiny had been
followed. This, according to the learned counsel, has been
the consistent view of this court, as can be seen from the
cases of Indira Nehru Gandhi v. Raj Narain [1975 Supp
SCC 1] and P.V. Narasimha Rao v. State (CBI/SPE)
[(1998) 4 SCC 626]. Both the judgments referred to the law
in Bradlaugh, the case of P.V. Narsimha Rao also quoted
with approval Stockdale. In the case of Indira Nehru
Gandhi, the court took note, in Para 70, of the law in
Bradlaugh, in the following words:-
"..It was held that the Court
had no power to restrain the executive
officer of the House from carrying out the
order of the House. The reason is that the
House is not subject to the control of the
courts in the administration of the
internal proceedings of the House."
Learned counsel for Union of India also sought strength
from the following observation appearing at page 468:-
"On the other hand, the courts
have always, at any rate in the last
resort, refused to interfere in the
application by the House of any of its
recognized privileges (May's
Parliamentary Practice, pp. 173-
74)"
In our view, the above observation of this court in the
case of UP Assembly, paraphrasing the position of law and
practice in England on the authority of May's Parliamentary
Practice, refers to enforcement by the legislature of privileges
which had been recognized by the courts. The observation has
no relevance on the question under consideration in these
matters since the law in England of exclusive cognizance has
no applicability in India which is governed and bound by the
Constitution of India.
Parliamentary privileges vis-`-vis Fundamental Rights
Before considering judicial review in Indian context, it is
appropriate to first examine this aspect. In the face of
arguments of illegalities in the procedure and the breach of
fundamental rights, it has been strongly contended on behalf
of the Union of India that Parliamentary privileges cannot be
decided against the touchstone of other constitutional
provisions, in general, and fundamental rights, in particular.
In this context, again it is necessary to seek
enlightenment from the judgments in the two cases of Pandit
Sharma as also the UP Assembly case where breach of
fundamental rights had been alleged by the persons facing the
wrong end of the stick.
In the case of Pandit Sharma (I), one of the two
principal points canvassed before the Court revolved around
the question as to whether the privilege of the Legislative
Assembly under Article 194 (3) prevails over the fundamental
rights of the petitioner (non-member in that case) under
Article 19(1)(a). This contention was sought to be supported
on behalf of the petitioner through a variety of arguments
including the plea that though clause (3) of Article 194 had
not, in terms, been made "subject to the provision of the
Constitution" it would not necessarily mean that it was not so
subject, and that the several clauses of Article 194, or Article
105, should not be treated as distinct and separate provisions
but should be read as a whole and that, so read, all the
clauses should be taken as subject to the provisions of the
Constitution which would include Article 19(1)(a). It was also
argued that Article 194 (1), like Article 105 (1), in reality
operates as an abridgement of the fundamental rights of
freedom of speech conferred by Article 19(1) (a) when exercised
in Parliament or the State Legislature, as the case may be, but
Article 194 (3) does not purport to be an exception to Article
19(1) (a). It was then submitted that Article 19 enunciates a
transcendental principle and confers on the citizens of India
indefeasible fundamental rights of a permanent nature while
the second part of Article 194 (3) was of the nature of a
transitory provision which, from its very nature, could not
override the fundamental rights. Further, the contention
raised was that if in pursuance of Article 105 (3), Parliament
were to make a law under entry 74 in List I to the Seventh
Schedule defining the powers, privileges and immunities of the
Houses of Parliament and if the powers, privileges and
immunities so defined were repugnant to the fundamental
rights of the citizens, such law will, under Article 13, to the
extent of such repugnancy be void and this being the intention
of the Constitution-makers and there being no apparent
indication of a different intention in the latter part of the same
clause, the powers & privileges of the House of Commons
conferred by the latter part of clause (3) must also be taken as
subject to the fundamental rights.
The arguments of the petitioner to above effect, however,
did not find favour with the Court. It was, inter alia, held that
the subject matter of each of the four clauses of Article 194
(which more or less correspond to Article 105) was different.
While clause (1) had been expressly made subject to the
provisions of the Constitution, the remaining clauses had not
been stated to be so subject, indicating that the Constitution
makers did not intend clauses (2) to (4) to be subject to the
provisions of the Constitution. It was ruled that the freedom of
speech referred to in clause (1) was different from the freedom
of speech and expression guaranteed under Article 19 (1) (a)
and the same could not be cut down in any way by any law
contemplated by Article 19 (2). While agreeing with the
proposition that a law made by Parliament in pursuance of the
earlier part of Article 105 (3) would not be a law made in
exercise of constituent power but would be one made in
exercise of ordinary legislative powers under Article 246 read
with the relevant entries of the Seventh Schedule and that
consequently if such a law takes away or abridges any of the
fundamental rights, it would contravene the peremptory
provisions of Article 13 (2) and would be void to the extent of
such contravention, it was observed that this did not lead to
the conclusion that if the powers, privileges or immunities
conferred by the latter part of the said Article are repugnant to
the fundamental rights they must also be void to the extent of
repugnancy. It was pointed out that it "must not be
overlooked that the provisions of Article 105 (3) and Article
194 (3) are constitutional laws and not ordinary laws made by
Parliament or the State Legislatures and that, therefore, they
are as supreme as the provisions of Part III". Interestingly, it
was also observed in the context of amenability of a law made
in pursuance of first parts of Article 105(3) and Article 194(3)
to the provisions of Article 13(2) that "it may well be that that
is perhaps the reason why our Parliament and the State
Legislatures have not made any law defining the powers,
privileges and immunities .."
On the basis of conclusions so reached, this Court
reconciled the conflict between fundamental right of speech &
expression under Article 19(1)(a) on one hand and the powers
and privileges of the Legislative Assembly under Article 194(3)
on the other by holding thus:-
"The principle of harmonious
construction must be adopted and so
construed, the provisions of Art.19(1)(a),
which are general, must yield to
Art.194(1) and the latter part of its cl. (3)
which are special"
Pandit Sharma had also invoked Article 21 to contend
that the proceedings before the Committee of Privileges of the
Legislative Assembly threatened to deprive him of personal
liberty otherwise than in accordance with the procedure
established by law. This Court, however, found that the
Legislative Assembly had framed rules of procedure under
Article 208 and, therefore, if the petitioner was eventually
deprived of his personal liberty as a result of the proceedings
before the Committee of Privileges, such deprivation would be
in accordance with the procedure established by law and,
therefore, a complaint of breach of fundamental rights under
Article 21 could not be made. The Court then proceeded to
examine the case to test the contention that the procedure
adopted by the Legislative Assembly was not in accordance
with the standing orders laying down the rules of procedure
governing the conduct of its business made in exercise of
powers under Article 208.
It is not possible to overlook developments in law post
Pandit Sharma, including UP Assembly case.
In the course of addressing the issues raised in the case
of UP Assembly, this court had the occasion to examine both
parts of clause (3) of Article 194. Article 194 (1) provides
"freedom of speech" in the legislature, though subject to
provision of the Constitution and to the rules and standing
orders regulating the procedure of the House in question.
Article 194 (2) creates an absolute immunity, in favour of
members of the legislature, against liability to any proceedings
in any court in respect of anything said or any vote given by
them in the legislative body or any committees thereof. The
first part of the clause (3) empowers the legislature to define
"by law" the powers, privileges and immunities of the House,
its members and the committees thereof, in respect other than
those covered by the earlier two clauses of Article 194.
While construing the effect of the expression "subject to
the provisions of this Constitution and to the rules and
standing orders regulating the procedure of the legislature" as
used in Clause (1) of Article 194 which has been omitted in the
remaining clauses of the said Article, at page 443 this court
observed as under:-
"It will thus be seen that all the 4 clauses
of the Article 194 are not in terms made
subject to the provisions contained in
Part III. In fact, clause (2) is couched in
such wide terms that in exercising the
rights conferred on them by cl.(1), if the
legislators by their speeches contravene
any of the fundamental rights guaranteed
by Part III, they would not be liable for
any action in any court. Nevertheless, if
for other valid considerations, it appears
that the contents of cl.(3) may not
exclude the applicability of certain
relevant provisions of the Constitution, it
would not be reasonable to suggest that
those provisions must be ignored just
because the said clause does not open
with the words "subject to the other
provisions of the Constitution." In
dealing with the effect of the provisions
contained in cl. (3) of Art. 194, wherever
it appears that there is a conflict between
the said provisions and the provisions
pertaining to fundamental rights, an
attempt will have to be made to resolve
the said conflict by the adoption of the
rule of harmonious construction"
(Emphasis supplied)
Reiterating the view taken in Pandit Sharma (I), it was
observed at page 452 as under:-
"..It is true that the power to make
such a law has been conferred on the
legislatures by the first part of Article
194(3); but when the State Legislatures
purport to exercise this power, they will
undoubtedly be acting under Article 246
read with Entry 39 of List II. The
enactment of such a law cannot be said
to be in exercise of a constituent power,
and so, such a law will have to be treated
as a law within the meaning of Article 13.
That is the view which the majority
decision expressed in the case of Pandit
Sharma [(1959) Supp. 1 SCR 806], and
we are in respectful agreement with that
view."
This was reiterated yet again at page 497 of the said
judgment in the following words:-
"-----------------that is one reason why the
Constitution-makers thought it necessary
that the legislatures should in due course
enact laws in respect of their powers,
privileges and immunities, because they
knew that when such laws are made,
they would be subject to the fundamental
rights and would be open to examination
by the courts in India. Pending the
making of such laws, powers, privileges
and immunities were conferred by the
latter part of Article 194(3). As we have
already emphasised, the construction of
this part of the article is within the
jurisdiction of this Court, and in
construing this part, we have to bear in
mind the other relevant and material
provisions of the
Constitution."
(Emphasis supplied)
In the case of UP Assembly, this Court observed that the
general issue as to the relevance and applicability of all the
fundamental rights guaranteed by Part III had not been raised
in the case of Pandit Sharma inasmuch as contravention of
only Article 19 (1) (a) and Article 21 had been pleaded,
therefore, it had not become necessary to consider the larger
issue as to whether the latter part of Article 194 (3) was
subject to the fundamental rights in general. It was held that
in view of the majority opinion in case of Pandit Sharma (I),
"it could not be said that the said view excluded the
application of all fundamental rights, for the obvious and
simple reason that Article 21 was held to be applicable and the
merits of the petitioner's argument about its alleged
contravention in his cases were examined and rejected." The
following observations appearing at p.451 in the case of UP
Assembly are instructive and need to be taken note of:-
"Therefore, we do not think it would be
right to read the majority decision as
laying down a general proposition that
whenever there is a conflict between the
provisions of the latter part of Article
194(3) and any of the provisions of the
fundamental rights guaranteed by Part
III, the latter must always yield to the
former. The majority decision, therefore,
must be taken to have settled that Article
19(1)(a) would not apply, and Article 21
would."
(Emphasis supplied)
The Court proceeded to examine the applicability of
Article 20 to the exercises of power and privilege under Article
194 (3) and the right of the citizen to approach this Court for
redressal under Article 32. In this context, in Para 125 (at
pages 492-93), it was held:-
"..If Article 21 applies, Article
20 may conceivably apply, and the
question may arise, if a citizen complains
that his fundamental right had been
contravened either under Article 20 or
Article 21, can he or can he not move this
Court under Article 32? For the purpose
of making the point which we are
discussing, the applicability of Article 21
itself would be enough. If a citizen moves
this Court and complains that his
fundamental right under Article 21 had
been contravened, it would plainly be the
duty of this Court to examine the merits
of the said contention, and that inevitably
raises the question as to whether the
personal liberty of the citizen has been
taken away according to the procedure
established by law. In fact, this question
was actually considered by this Court in
the case of Pandit Sharma [(1959) Supp.
1 SCR 806]. It is true that the answer
was made in favour of the legislature: but
that is wholly immaterial for the purpose
of the present discussion. If in a given
case, the allegation made by the citizen is
that he has been deprived of his liberty
not in accordance with law, but for
capricious or mala fide reasons, this
Court will have to examine the validity of
the said contention, and it would be no
answer in such a case to say that the
warrant issued against the citizen is a
general warrant and a general warrant
must stop all further judicial inquiry and
scrutiny. In our opinion, therefore, the
impact of the fundamental constitutional
right conferred on Indian citizens by
Article 32 on the construction of the
latter part of Article 194(3) is decisively
against the view that a power or privilege
can be claimed by the House, though it
may be inconsistent with Article 21. In
this connection, it may be relevant to
recall that the rules which the House has
to make for regulating its procedure and
the conduct of its business have to be
subject to the provisions of the
Constitution under Article 208(1)."
(Emphasis supplied)
The hollowness of the proposition of total immunity of the
action of the legislatures in such matters is brought out vividly
in the following words:-
"..It would indeed be strange that
the Judicature should be authorised to
consider the validity of the legislative acts
of our legislatures, but should be
prevented from scrutinising the validity of
the action of the legislatures trespassing
on the fundamental rights conferred on
the citizens."
(Emphasis supplied)
Referring to the above observations the learned
Additional Solicitor General submitted that this observation
may be relevant to Article 21 in the limited context but cannot
be applied to all the fundamental rights. It is the contention of
the learned counsel for Union of India and the learned
Additional Solicitor General that the case of UP Assembly was
restricted to the consideration of the exclusiveness of the right
of the Legislative Assembly to claim a general warrant issued
by it in respect of its contempt alleged to have been committed
by a citizen who was not a member of the House outside the
four-walls of the House and to the jurisdiction of the High
Court to entertain a Habeas Corpus petition on the allegations
of breach of fundamental rights of the said citizen. The learned
counsel would point out that the majority judgment in the
course of setting out its conclusions pre-faced its answer with
the observation that "the answer is confined to cases in
relation to contempt alleged to have been committed by a
citizen who is not a member of the House outside the four-
walls of the legislative chamber". The submission of the
learned counsel is that the Court in the said case had
deliberately omitted reference to infringement of privileges and
immunities of the Legislature other than those with which it
was concerned in the said matter and, therefore, the views
taken with regard to applicability of Article 20 or Article 21
could not be taken as law settled.
The learned counsel for Union of India further submitted
that in exercise of the privileges of the House to regulate its
own proceedings including the power to expel a member, it
does not engage Article 14 or Article 19. He referred to the
judgment of Canada Supreme Court in New Brunswick
Broadcasting Corporation v. Nova Scotia Speaker [1993
(1) SCR 391], in particular, the observations (page 373) to the
following effect:-
"It is a basic rule, not disputed in this
case, that one part of the Constitution
cannot be abrogated or diminished by
another part of the Constitution:
Reference re Bill 30, An Act to amend the
Education Act (Ont.), [1987] 1 SCR 1148.
So if the privilege to expel strangers from
the legislative assembly is constitutional,
it cannot be abrogated by the Charter,
even if the Charter otherwise applies to
the body making the ruling. This raises
the critical question: is the privilege of the
legislative assembly to exclude strangers
from its chamber a constitutional power?"
He also referred to the judgment of Canada Supreme
Court in the case of Harvey vs. New Brunswick [1996 (2)
SCR 876] and referred in particular to observations at pages
159 and 162 as under:-
"This is not to say that the courts have
no role to play in the debate which arises
where individual rights are alleged to
conflict with parliamentary privilege.
Under the British system of
parliamentary supremacy, the courts
arguably play no role in monitoring the
exercise of parliamentary privilege. In
Canada, this has been altered by the
Charter's enunciation of values which
may in particular cases conflict with the
exercise of such privilege. To prevent
abuses cloaked in the guise of privilege
from trumping legitimate Charter
interests, the courts must inquire into
the legitimacy of a claim of parliamentary
privilege. As this Court made clear in New
Brunswick Broadcasting, the courts may
properly question whether a claimed
privilege exists. This screening role
means that where it is alleged that a
person has been expelled or disqualified
on invalid grounds, the courts must
determine whether the act falls within the
scope of parliamentary privilege. If the
court concludes that it does, no further
review lies."
Xxxxxxxxxxxxxxxxxxxx
"The authorities establish that expulsion
from the legislature of members deemed
unfit is a proper exercise of parliamentary
privilege. Regarding the British House of
Commons, Erskine May, supra, wrote
that,"[n]o power exercise by the
Commons is more undoubted than that
of expelling a member from the house, as
a punishment for grave offences" (p.58).
In Canada, J. G. Bourinot, in
Parliamentary Procedure and Practice in
the Dominion of Canada (2nd Ed. 1892),
at pp. 193-94, affirmed the same rule."
(Emphasis supplied)
We may note that observations made by Canadian
Supreme Court in House of Commons v. Vaid [(2005) 1 SCR
667] show that even in Canada, the approach is on change.
In Vaid, it is observed that "over the years, the assertion of
parliamentary privilege has varied in its scope and content".
Further, the court comments that much more recently the
Speaker in Canada stated "In my view, parliamentary privilege
does not go much beyond the right of free speech in the House
of Commons and the right of a member to discharge his duties
as a member of the House of Commons" (page 682). Be that
as it may, in our considered opinion, the law laid down by the
Supreme Court of Canada has to be construed in the light of
Constitutional and statutory provisions in vogue in that
jurisdiction and have no relevance here in as much as it has
already been settled in the aforementioned cases by this Court
that the manner of enforcement of privilege by the legislature
can result in judicial scrutiny on the touch-stone of Articles 20
or 21, though subject to the restrictions contained in the other
Constitutional provision, for example Article 212 (1) in the
case of legislative assembly of the State (corresponding to
Article 122 in the case of Parliament).
We are unable to accept the argument of the learned
Counsel for Union of India for the simple reason that what this
Court "deliberately omitted" to do in the case of UP Assembly
was consideration of the powers, privileges and immunities
other than the contempt jurisdiction of the Legislature. The
views expressed as to the applicability of Article 20 and Article
21 in the context of manner of exercise of the powers and
privileges of the Legislative Assembly are of general import and
cannot be wished away. They would hold good not merely
against a non-member as was the case in that Reference but
even against a member of the Legislature who also is a citizen
of this country and entitled to the protection of the same
fundamental rights, especially when the impugned action
entails civil consequences.
In the light of law laid down in the two cases of Pandit
Sharma and in the case of UP Assembly, we hold that the
broad contention on behalf of the Union of India that the
exercise of Parliamentary privileges cannot be decided against
the touchstone of fundamental rights or the constitutional
provisions is not correct. In the case of Pandit Sharma the
manner of exercise of the privilege claimed by the Bihar
Legislative Assembly was tested against the "procedure
established by law" and thus on the touchstone of Article 21.
It is a different matter that the requirements of Article 21, as
at the time understood in its restrictive meaning, were found
satisfied. The point to be noted here is that Article 21 was
found applicable and the procedure of the legislature was
tested on its anvil. This view was followed in the case of UP
Assembly which added the enforceability of Article 20 to the
fray.
When the cases of Pandit Sharma and UP Assembly
were decided, Article 21 was construed in a limited sense,
mainly on the strength of law laid down in A.K. Gopalan v.
State of Madras [1950 SCR 88], in which a Constitution
Bench of this Court had held that operation of each Article of
the Constitution and its effect on the protection of
fundamental rights was required to be measured
independently. The law underwent a total transformation
when a Constitution Bench (11 Judges) in Rustom Cavasjee
Cooper v. Union of India [(1970) 1 SCC 248] held that all the
provisions of the Constitution are required to be read
conjointly as to the effect and operation of fundamental rights
of the citizens when the State action infringed the rights of the
individual. The jurisprudence on the subject has been
summarized by this Court in Para 27 of the judgment in
Ashok Kumar Gupta v. State of U.P. [(1997) 5 SCC 201], in
the following words :-
"27. In A.K. Gopalan v. State of Madras
[1950 SCR 88], per majority, the
Constitution Bench had held that the
operation of each article of the
Constitution and its effect on the
protection of fundamental rights is
required to be measured independently
and not in conjoint consideration of all
the relevant provisions. The above ratio
was overruled by a Bench of 11 Judges in
Rustom Cavasjee Cooper v. Union of India
[(1970) 1 SCC 248]. This Court had held
that all the provisions of the Constitution
conjointly be read on the effect and
operation of fundamental right of the
citizens when the State action infringes
the right of the individual. In D.T.C. case
[1991 Supp (1) SCC 600] (SCC at
pp. 750-51, paras 297 and 298) it was
held that:
"It is well-settled constitutional law
that different articles in the chapter
on Fundamental Rights and the
Directive Principles in Part IV of the
Constitution must be read as an
integral and incorporeal whole with
possible overlapping with the
subject-matter of what is to be
protected by its various provisions
particularly the Fundamental
Rights.
... The nature and content of the
protection of the fundamental rights
is measured not by the operation of
the State action upon the rights of
the individual but by its objects. The
validity of the State action must be
adjudged in the light of its operation
upon the rights of the individuals or
groups of individuals in all their
dimensions. It is not the object of
the authority making the law
impairing the right of the citizen nor
the form of action taken that
determines the protection he can
claim; it is the effect of the law and
of the action upon the right which
attract the jurisdiction of the court
to grant relief. In Minerva Mills Ltd.
v. Union of India [(1980) 3 SCC 625]
the fundamental rights and directive
principles are held to be the
conscience of the Constitution and
disregard of either would upset the
equibalance built up therein. In
Maneka Gandhi case [(1978) 1 SCC
248] it was held that different
articles in the chapter of
fundamental rights of the
Constitution must be read as an
integral whole, with possible
overlapping of the subject-matter of
what is sought to be protected by its
various provisions particularly by
articles relating to fundamental
rights contained in Part III of the
Constitution do not represent
entirely separate streams of rights
which do not mingle at many points.
They are all parts of an integrated
scheme in the Constitution. Their
waters must mix to constitute that
grand flow of unimpeded and
impartial justice; social, economic
and political, and of equality of
status and opportunity which imply
absence of unreasonable or unfair
discrimination between individuals
or groups or classes. The
fundamental rights protected by
Part III of the Constitution, out of
which Articles 14, 19 and 21 are the
most frequently invoked to test the
validity of executive as well as
legislative actions when these
actions are subjected to judicial
scrutiny. Fundamental rights are
necessary means to develop one's
own personality and to carve out
one's own life in the manner one
likes best, subject to reasonable
restrictions imposed in the
paramount interest of the society
and to a just, fair and reasonable
procedure. The effect of restriction
or deprivation and not of the form
adopted to deprive the right is the
conclusive test."
(Emphasis supplied)
The enforceability of Article 21 in relation to the manner
of exercise of Parliamentary privilege, as affirmed in the cases
of Pandit Sharma and UP Assembly has to be understood in
light of the expanded scope of the said fundamental right
interpreted as above.
It is to be remembered that the plenitude of powers
possessed by the Parliament under the written Constitution is
subject to legislative competence and restrictions of
fundamental rights and that in case a member's personal
liberty was threatened by imprisonment of committal in
execution of Parliamentary privilege, Article 21 would be
attracted.
If it were so, we are unable to fathom any reason why the
general proposition that fundamental rights cannot be invoked
in matters concerning Parliamentary privileges should be
accepted. Further, there is no reason why the member, or
indeed a non-member, should not be entitled to the protection
of Article 21, or for that matter Article 20, in case the exercise
of Parliamentary privilege contemplates a sanction other than
that of committal.
Judicial Review Effect of Article 122
It is the contention of the learned Counsel for Union of
India that it should be left to the wisdom of the legislature to
decide as to on what occasion and in what manner the power
is to be exercised especially as the Constitution gives to it the
liberty of making rules for regulating its procedure and the
conduct of its business. He would refer to Article 122 (1) to
argue that the validity of proceedings in Parliament is a matter
which is expressly beyond the gaze of, or scrutiny by, the
judicature. It has been the contention on behalf of the Union
of India that the principle of exclusive cognizance of
Parliament in relation to its privileges under Article 105
constitutes a bar on the jurisdiction of the Court which is of
equal weight as other provisions of the Constitution including
those contained in Part III and, therefore, the manner of
enforcement of the privilege cannot be tested on the
touchstone of other such constitutional provisions, also in
view of the prohibition contained in Article 122.
The issue of jurisdiction was one of the principal
concerns of this court in the case of UP Assembly, under the
cover of which the Uttar Pradesh Legislative Assembly had
asserted its right to commit Keshav Singh for contempt and
later had taken umbrage against the entertainment of a
petition for habeas corpus in the High Court under Article
226. The main controversy in that case squarely lay in the
question as to whether the legislature was "the sole and
exclusive judge" of the issue of contempt and of the
punishment that deserved to be awarded against the
contemnor, as against the jurisdiction claimed by the High
Court to entertain a writ challenging the validity of the
detention of the alleging contemnor.
In the case of Pandit Sharma (II), while dealing with the
questions raised as to the regularity of the procedure adopted
by the House of the legislature, this court inter alia observed
as under at page 105:-
".the validity of the proceedings
inside the Legislature of a State cannot
be called in question on the allegation
that the procedure laid down by the law
had not been strictly followed. Article 212
of the Constitution is a complete answer
to this part of the contention raised on
behalf of the petitioner. No Court can go
into those questions which are within the
special jurisdiction of the Legislature
itself, which has the power to conduct its
own business."
(Emphasis supplied)
The question of extent of judicial review of Parliamentary
matters has to be resolved with reference to the provision
contained in Article 122 (1) that corresponds to Article 212
referred to in Pandit Sharma (II). On a plain reading, Article
122 (1) prohibits "the validity of any proceedings in
Parliament" from being "called in question" in a court merely
on the ground of "irregularity of procedure". In other words,
the procedural irregularities cannot be used by the court to
undo or vitiate what happens within the four walls of the
legislature. But then, 'procedural irregularity' stands in stark
contrast to 'substantive illegality' which cannot be found
included in the former. We are of the considered view that this
specific provision with regard to check on the role of the
judicial organ vis-`-vis proceedings in Parliament uses
language which is neither vague nor ambiguous and,
therefore, must be treated as the constitutional mandate on
the subject, rendering unnecessary search for an answer
elsewhere or invocation of principles of harmonious
construction.
Article 122 corresponds to Draft Article 101 which was
considered by the Constituent Assembly on 23rd May 1949.
Though the marginal note of the Article "Courts not to enquire
into proceedings of Parliament" clearly indicates the import of
the provision contained therein, Mr. H.V. Kamath introduced
an amendment that the words "in any court" be inserted after
the words "called in question" in Clause I. Answering to the
debate that had followed, Dr. B.R. Ambedkar intervened and
clarified as under:-
"The Honourable Dr. B.R. Ambedkar :
Sir, with regard to the amendment of Mr.
Kamath, I do not think it is necessary,
because where can the proceedings of
Parliament be questioned in a legal
manner except in a court? Therefore the
only place where the proceedings of
Parliament can be questioned in a legal
manner and legal sanction obtained is
the court. Therefore it is unnecessary to
mention the words which Mr. Kamath
wants in his amendment.
For the reason I have explained, the
only forum where the proceedings can be
questioned in a legal manner and legal
relief obtained either against the
President or the Speaker or any officer or
Member, being the Court, it is
unnecessary to specify the forum. Mr.
Kamath will see that the marginal note
makes it clear."
(Emphasis supplied)
The above indeed was a categorical clarification that
Article 122 does contemplate control by the courts over legality
of Parliamentary proceedings. What the provision intended to
prohibit thus were cases of interference with internal
Parliamentary proceedings on the ground of mere procedural
irregularity.
That the English cases laying down the principle of
exclusive cognizance of the Parliament, including the case of
Bradlaugh, arise out of a jurisdiction controlled by the
constitutional principle of sovereignty of Parliament cannot be
lost sight of. In contrast, the system of governance in India is
founded on the norm of supremacy of the Constitution which
is fundamental to the existence of the Federal State. Referring
to the distinction between a written Federal Constitution
founded on the distribution of limited Executive, Legislative
and Judicial authority among bodies which are coordinate
with and independent of each other on the one hand and the
system of governance in England controlled by a sovereign
Parliament which has the right to make or unmake any law
whatever, this Court in the case of UP Assembly concluded
thus in Paras 39 and 40:-
"39. Our legislatures have undoubtedly
plenary powers, but these powers are
controlled by the basic concepts of the
written Constitution itself and can be
exercised within the legislative fields
allotted to their jurisdiction by the three
Lists under the Seventh Schedule; but
beyond the Lists, the legislatures cannot
travel. They can no doubt exercise their
plenary legislative authority and
discharge their legislative functions by
virtue of the powers conferred on them by
the relevant provisions of the
Constitution; but the basis of the power
is the Constitution itself. Besides, the
legislative supremacy of our legislatures
including the Parliament is normally
controlled by the provisions contained in
Part III of the Constitution. If the
legislatures step beyond the legislative
fields assigned to them, or acting within
their respective fields, they trespass on
the fundamental rights of the citizens in a
manner not justified by the relevant
articles dealing with the said
fundamental rights, their legislative
actions are liable to be struck down by
courts in India. Therefore, it is necessary
to remember that though our legislatures
have plenary powers, they function within
the limits prescribed by the material and
relevant provisions of the Constitution.
40. In a democratic country governed by
a written Constitution, it is the
Constitution which is supreme and
sovereign. It is no doubt true that the
Constitution itself can be amended by the
Parliament, but that is possible because
Article 368 of the Constitution itself
makes a provision in that behalf, and the
amendment of the Constitution can be
validly made only by following the
procedure prescribed by the said article.
That shows that even when the
Parliament purports to amend the
Constitution, it has to comply with the
relevant mandate of the Constitution
itself. Legislators, Ministers, and Judges
all take oath of allegiance to the
Constitution, for it is by the relevant
provisions of the Constitution that they
derive their authority and jurisdiction
and it is to the provisions of the
Constitution that they owe allegiance.
Therefore, there can be no doubt that the
sovereignty which can be claimed by the
Parliament in England cannot be claimed
by any legislature in India in the literal
absolute sense."
(Emphasis supplied)
The submissions of the learned counsel for Union of
India and the learned Additional Solicitor General seek us to
read a finality clause in the provisions of Article 122 (1) in so
far as parliamentary proceedings are concerned. On the
subject of finality clauses and their effect on power of judicial
review, a number of cases have been referred that may be
taken note of at this stage.
The case of Sub-Committee on Judicial Accountability
v. Union of India [(1991) 4 SCC 699], pertained to
interpretation of Articles 121 and 124 of the Constitution and
of the Judges (Inquiry) Act, 1968. One of the contentions
raised in that case pertained to the issue as to whether the
question if a motion had lapsed or not was a matter pertaining
to the conduct of the business of the House of Parliament of
which the House was taken as the sole and exclusive master.
It was contended that no aspect of the matter was justiciable
before a Court since Houses of Parliament are privileged to be
the exclusive arbiters of the legality of their proceedings.
Strong reliance, in this context, was placed on the decision in
Bradlaugh which, it was noted, arises out of a jurisdiction
where exclusiveness of Parliamentary control was covered by a
Statute. In this context, the majority view was expressed in
the following words by this Court:-
"61. But where, as in this country and
unlike in England, there is a written
Constitution which constitutes the
fundamental and in that sense a "higher
law" and acts as a limitation upon the
legislature and other organs of the State
as grantees under the Constitution, the
usual incidents of parliamentary
sovereignty do not obtain and the concept
is one of 'limited government'. Judicial
review is, indeed, an incident of and flows
from this concept of the fundamental and
the higher law being the touchstone of
the limits of the powers of the various
organs of the State which derive power
and authority under the Constitution and
that the judicial wing is the interpreter of
the Constitution and, therefore, of the
limits of authority of the different organs
of the State. It is to be noted that the
British Parliament with the Crown is
supreme and its powers are unlimited
and courts have no power of judicial
review of legislation.
63. But it is the duty of this Court to
interpret the Constitution for the
meaning of which this Court is final
arbiter.
65. The rule in Bradlaugh v.
Gossett[(1884)12 QBD 271 : 50 LT 620]
was held not applicable to proceedings of
colonial legislature governed by the
written Constitutions Barton v. Taylor
[(1886)11 AC 197 : 2 TLR 382] and
Rediffusion (Hong Kong) Ltd. v. Attorney
General of Hong Kong [(1970) AC 1136 :
(1970)2 WLR 1264].
66. The principles in Bradlaugh [(1884)12
QBD 271 : 50 LT 620] is that even a
statutory right if it related to the sphere
where Parliament and not the courts had
exclusive jurisdiction would be a matter
of the Parliament's own concern. But the
principle cannot be extended where the
matter is not merely one of procedure but
of substantive law concerning matters
beyond the parliamentary procedure.
Even in matters of procedure the
constitutional provisions are binding as
the legislations are enforceable. Of the
interpretation of the Constitution and as
to what law is the courts have the
constitutional duty to say what the law
is. The question whether the motion has
lapsed is a matter to be pronounced upon
the basis of the provisions of the
Constitution and the relevant laws.
Indeed, the learned Attorney General
submitted that the question whether as
an interpretation of the constitutional
processes and laws, such a motion lapses
or not is exclusively for the courts to
decide."
The touchstone upon which Parliamentary actions within
the four-walls of the Legislature were examined was both the
constitutional as well as substantive law. The proceedings
which may be tainted on account of substantive illegality or
unconstitutionality, as opposed to those suffering from mere
irregularity thus cannot be held protected from judicial
scrutiny by Article 122 (1) inasmuch as the broad principle
laid down in Bradlaugh acknowledging exclusive cognizance
of the Legislature in England has no application to the system
of governance provided by our Constitution wherein no organ
is sovereign and each organ is amenable to constitutional
checks and controls, in which scheme of things, this Court is
entrusted with the duty to be watchdog of and guarantor of
the Constitution.
Article 217(3) vests in the President of India the
jurisdiction to decide the question as to the age of a Judge of a
High Court, after consultation with the Chief Justice of India
and declares that the said decision of the President shall be
final. Interpreting this finality clause relatable to the powers of
the President, this Court in the case of Union of India v.
Jyoti Prakash Mitter [(1971) 1 SCC 396] observed in Para
32 as under:-
"The President acting under Article 217(3)
performs a judicial function of grave
importance under the scheme of our
Constitution. He cannot act on the advice
of his Ministers. Notwithstanding the
declared finality of the order of the
President the Court has jurisdiction in
appropriate cases to set aside the order, if
it appears that it was passed on collateral
considerations or the Rules of natural
justice were not observed, or that the
President's judgment was coloured by the
advice or representation made by the
executive or it was founded on no
evidence."
Article 311 relates to the dismissal, removal etc. of
persons employed in civil capacities under the Union or a
State. The second proviso to Article 311(2) empowers the
President or the Governor, as the case may be, to dispense
with the enquiry generally required to be held, upon
satisfaction that in the interest of the security of the State it is
not expedient to hold such enquiry. Article 311(3) gives
finality to such decision in the following manner:-
"If, in respect of any such person as
aforesaid, a question arises whether it is
reasonably practicable to hold such
inquiry as is referred to in clause (2), the
decision thereon of the authority
empowered to dismiss or remove such
person or to reduce him in rank shall be
final."
Construing the expression "finality" in the aforesaid
provision, this Court in Union of India v. Tulsiram Patel
[(1985) 3 SCC 398], in Para 138, observed as under:-
"..The finality given by clause (3) of
Article 311 to the disciplinary authority's
decision that it was not reasonably
practicable to hold the inquiry is not
binding upon the court. The court will
also examine the charge of mala fides, if
any, made in the writ petition. In
examining the relevancy of the reasons,
the court will consider the situation
which according to the disciplinary
authority made it come to the conclusion
that it was not reasonably practicable to
hold the inquiry. If the court finds that
the reasons are irrelevant, then the
recording of its satisfaction by the
disciplinary authority would be an abuse
of power conferred upon it by clause
(b)."
Article 191 relates to disqualifications for membership of
the State Legislature. The authority to decide the questions
arising as a result is vested in the Governor whose decision,
according to Article 192(1), "shall be final".
Tenth Schedule was added to the Constitution by the
Constitution (52nd Amendment) Act 1985 with effect from 1st
March 1985, to provide for detailed provisions as to
disqualification on the ground of defection with reference, inter
alia, to Article 102(2) that deals with "disqualifications for
membership" of Parliament. Paragraph 6(1), amongst others,
vests the authority to take a decision on the question of
disqualification on ground of defection unto the Chairman of
Rajya Sabha or the Speaker of Lok Sabha, as the case may be.
This provision declares that the decision of the said authority
"shall be final". Interestingly, Para 6 (2) states that all the
proceedings relating to decision on the question of
disqualification on the ground of defection "shall be deemed to
be proceedings in Parliament within the meaning of Article
122".
Paragraph 7 of Tenth Schedule contains an express bar
of jurisdiction of courts. It reads as under:-
"Bar of jurisdiction of courts.
Notwithstanding anything in this
Constitution, no court shall have any
jurisdiction in respect of any matter
connected with the disqualification of a
member of a House under this Schedule."
It was in the context of these provisions that questions
relating to the parameters of judicial review of the exercise of a
constitutional power in the face of constitutional bar on the
jurisdiction of the Court arose before a Constitution Bench of
this Court in the case of Kihoto Hollohan v. Zachillhu [1992
Supp (2) SCC 651]. The matter was examined by this Court
with reference, amongst others, to the immunity under Article
122, exclusivity of the jurisdiction vested in the authority
mentioned in the Tenth Schedule and the concept of "finality",
in addition to an express bar making it a non-justiciable area.
Construing the word "finality" and referring, inter alia, to
interpretation of similar finality clause in Article 217(3) in the
case of Jyoti Prakash Mitter and in Article 311(3) as
construed in Tulsiram Patel, this Court held that the
determinative jurisdiction of the Speaker or the Chairman in
the Tenth Schedule was a judicial power and it was
inappropriate to claim that it was within the non-justiciable
legislative area. The Court referred to the case of Express
Newspaper (P) Ltd. v. Union of India [AIR 1958 SC 578]
and quoted the exposition as to what distinguishes a judicial
power from a legislative power in Australian Boot Trade
Employees Federation v. Whybrow & Co. [(1910) 10 CLR
266] by Issacs, J. as under:-
"If the dispute is as to the relative rights
of parties as they rest on past or present
circumstances, the award is in the nature
of a judgment, which might have been the
decree of an ordinary judicial tribunal
acting under the ordinary judicial power.
There the law applicable to the case must
be observed. If, however, the dispute is as
to what shall in the future be the mutual
rights and responsibilities of the parties
in other words, if no present rights are
asserted or denied, but a future rule of
conduct is to be prescribed, thus creating
new rights and obligations, with
sanctions for non-conformity then the
determination that so prescribes, call it
an award, or arbitration, determination,
or decision or what you will, is essentially
of a legislative character, and limited only
by the law which authorises it. If, again,
there are neither present rights asserted,
nor a future rule of conduct prescribed,
but merely a fact ascertained necessary
for the practical effectuation of admitted
rights, the proceeding, though called an
arbitration, is rather in the nature of an
appraisement or ministerial act."
(Emphasis supplied)
The following observations in the judgment in Kihoto
Hollohan need to be quoted in extenso:-
"96. The fiction in Paragraph 6(2),
indeed, places it in the first clause of
Article 122 or 212, as the case may be.
The words "proceedings in Parliament" or
"proceedings in the legislature of a State"
in Paragraph 6(2) have their
corresponding expression in Articles
122(1) and 212(1) respectively. This
attracts an immunity from mere
irregularities of procedures.
99. Where there is a lis an
affirmation by one party and denial by
another and the dispute necessarily
involves a decision on the rights and
obligations of the parties to it and the
authority is called upon to decide it,
there is an exercise of judicial power.
That authority is called a Tribunal, if it
does not have all the trappings of a
Court. In Associated Cement Companies
Ltd. v. P.N. Sharma, (1965) 2 SCR 366,
this Court said: (SCR pp. 386-87)
"... The main and the basic test
however, is whether the
adjudicating power which a
particular authority is empowered to
exercise, has been conferred on it by
a statute and can be described as a
part of the State's inherent power
exercised in discharging its judicial
function. Applying this test, there
can be no doubt that the power
which the State Government
exercises under Rule 6(5) and Rule
6(6) is a part of the State's judicial
power.... There is, in that sense, a
lis; there is affirmation by one party
and denial by another, and the
dispute necessarily involves the
rights and obligations of the parties
to it. The order which the State
Government ultimately passes is
described as its decision and it is
made final and binding."
101. In the operative conclusions we
pronounced on November 12, 1991 we
indicated in clauses (G) and (H) therein
that judicial review in the area is limited
in the manner indicated. If the
adjudicatory authority is a tribunal, as
indeed we have held it to be, why, then,
should its scope be so limited? The
finality clause in Paragraph 6 does not
completely exclude the jurisdiction of the
courts under Articles 136, 226 and 227 of
the Constitution. But it does have the
effect of limiting the scope of the
jurisdiction. The principle that is applied
by the courts is that in spite of a finality
clause it is open to the court to examine
whether the action of the authority under
challenge is ultra vires the powers
conferred on the said authority. Such an
action can be ultra vires for the reason
that it is in contravention of a mandatory
provision of the law conferring on the
authority the power to take such an
action. It will also be ultra vires the
powers conferred on the authority if it is
vitiated by mala fides or is colourable
exercise of power based on extraneous
and irrelevant considerations. While
exercising their certiorari jurisdiction, the
courts have applied the test whether the
impugned action falls within the
jurisdiction of the authority taking the
action or it falls outside such jurisdiction.
An ouster clause confines judicial review
in respect of actions falling outside the
jurisdiction of the authority taking such
action but precludes challenge to such
action on the ground of an error
committed in the exercise of jurisdiction
vested in the authority because such an
action cannot be said to be an action
without jurisdiction. An ouster clause
attaching finality to a determination,
therefore, does oust certiorari to some
extent and it will be effective in ousting
the power of the court to review the
decision of an inferior tribunal by
certiorari if the inferior tribunal has not
acted without jurisdiction and has merely
made an error of law which does not
affect its jurisdiction and if its decision is
not a nullity for some reason such as
breach of rule of natural justice. [See:
Administrative Law, H.W.R. Wade, (6th
edn.), pp. 724-26; Anisminic Ltd. v.
Foreign Compensation Commission,
[1969] 1 All ER 208; S.E. Asia Fire Bricks
v. Non-Metallic Mineral Products
Manufacturing Employees Union, [1980]
2 All ER 689 (PC)].
109. In the light of the decisions referred
to above and the nature of function that
is exercised by the Speaker/Chairman
under Paragraph 6, the scope of judicial
review under Articles 136, and 226 and
227 of the Constitution in respect of an
order passed by the Speaker/Chairman
under Paragraph 6 would be confined to
jurisdictional errors only viz., infirmities
based on violation of constitutional
mandate, mala fides, non-compliance
with rules of natural justice and
perversity.
111. In the result, we hold on
contentions (E) and (F):
That the Tenth Schedule does not,
in providing for an additional grant
(sic ground) for disqualification and
for adjudication of disputed
disqualifications, seek to create a
non-justiciable constitutional area.
The power to resolve such disputes
vested in the Speaker or Chairman
is a judicial power.
That Paragraph 6(1) of the Tenth
Schedule, to the extent it seeks to
impart finality to the decision of the
speakers/Chairmen is valid. But the
concept of statutory finality
embodied in Paragraph 6(1) does not
detract from or abrogate judicial
review under Articles 136, 226 and
227 of the Constitution insofar as
infirmities based on violations of
constitutional mandates, mala fides,
non-compliance with Rules of
Natural Justice and perversity, are
concerned.
That the deeming provision in
Paragraph 6(2) of the Tenth
Schedule attracts an immunity
analogous to that in Articles 122(1)
and 212(1) of the Constitution as
understood and explained in Keshav
Singh case to protect the validity of
proceedings from mere irregularities
of procedure. The deeming
provision, having regard to the
words 'be deemed to be proceedings
in Parliament' or 'proceedings in the
legislature of a State' confines the
scope of the fiction accordingly.
The Speakers/Chairmen while
exercising powers and discharging
functions under the Tenth Schedule
act as Tribunal adjudicating rights
and obligations under the Tenth
Schedule and their decisions in that
capacity are amenable to judicial
review." (Emphasis supplied)
In answer to the above submissions, the learned counsel
for Union of India would argue that the actions of Houses of
Parliament in exercise of their powers and privileges under
Article 105 cannot be subjected to the same parameters of
judicial review as applied to other authorities. He would
submit that it was clarified in the case of Kihoto Hollohan
that the authority mentioned in the Tenth Schedule was a
Tribunal and the proceedings of disqualification before it are
not proceedings before the House and thus the decision under
Para 6(1) of the Tenth Schedule is not a decision of the House
nor is it subject to the approval of the House and rather
operates independently of the House. He would submit that
the decision of the House in regulating its own proceedings
including in the matter of expulsion of a member for breach of
privilege cannot be equated to the decision of such authority
as mentioned in the Tenth Schedule and the House in such
proceedings is not required to act in a quasi-judicial manner.
He would, in the same breath, concede that the House does
act even in such matters in conformity with rules of natural
justice.
In our considered view, the principle that is to be taken
note of in the aforementioned series of cases is that
notwithstanding the existence of finality clauses, this court
exercised its jurisdiction of judicial review whenever and
wherever breach of fundamental rights was alleged. President
of India while determining the question of age of a Judge of a
High Court under Article 217 (3), or the President of India (or
the Governor, as the case may be) while taking a decision
under Article 311 (3) to dispense with the ordinarily
mandatory inquiry before dismissal or removal of a civil
servant, or for that matter the Speaker (or the Chairman, as
the case may be) deciding the question of disqualification
under Para 6 of the Tenth Schedule may be acting as
authorities entrusted with such jurisdiction under the
constitutional provisions. Yet, the manner in which they
exercised the said jurisdiction is not wholly beyond the judicial
scrutiny. In the case of Speaker exercising jurisdiction under
the Tenth Schedule, the proceedings before him are declared
by Para 6 (2) of the Tenth Schedule to be proceedings in
Parliament within the meaning of Article 122. Yet, the said
jurisdiction was not accepted as non-justiciable. In this view,
we are unable to subscribe to the proposition that there is
absolute immunity available to the Parliamentary proceedings
relating to Article 105(3). It is a different matter as to what
parameters, if any, should regulate or control the judicial
scrutiny of such proceedings.
In the case of UP Assembly, the issue was authoritatively
settled by this Court, and it was held, at pages 455-456, as
under:-
"Art.212(1) seems to make it possible for
a citizen to call in question in the
appropriate court of law the validity of
any proceedings inside the legislative
chamber if his case is that the said
proceedings suffer not from mere
irregularity of procedure, but from an
illegality. If the impugned procedure is
illegal and unconstitutional, it would be
open to be scrutinized in a court of law,
though such scrutiny is prohibited if the
complaint against the procedure is no
more than this that the procedure was
irregular."
(Emphasis supplied)
With reference to the above-quoted observations
recognizing the permissibility of scrutiny in a court of law on
allegation that the impugned procedure was illegal or
unconstitutional, the learned Additional Solicitor General
submitted that these observations need to be clarified and the
expression "illegality" must necessarily mean
"unconstitutionality", that is violation of mandatory
constitutional or statutory provisions.
The learned Additional Solicitor General has referred to
Tej Kiran Jain v. N. Sanjiva Reddy [(1970) 2 SCC 272].
This was a matter arising out of a suit claiming damages for
defamatory statement made by the respondent in Parliament.
The suit had been dismissed by the High Court of Delhi in
view of the immunity from judicial redress as stated in Article
105(2). In this court, the contention urged was that the
immunity granted under Article 105(2) was confined to
"relevant Parliament business" and not to something which is
utterly irrelevant. This contention was rejected by
Hidayatullah, C.J. through observations in Para 8 that read as
under:-
"8. In our judgment it is not possible to
read the provisions of the article in the
way suggested. The article means what it
says in language which could not be
plainer. The article confers immunity
inter alia in respect of "anything said ...
in Parliament". The word "anything" is of
the widest import and is equivalent to
"everything". The only limitation arises
from the words "in Parliament" which
means during the sitting of Parliament
and in the course of the business of
Parliament. We are concerned only with
speeches in Lok Sabha. Once it was
proved that Parliament was sitting and its
business was being transacted, anything
said during the course of that business
was immune from proceedings in any
Court this immunity is not only complete
but is as it should be. It is of the essence
of parliamentary system of Government
that people's representatives should be
free to express themselves without fear of
legal consequences. What they say is only
subject to the discipline of the rules of
Parliament, the good sense of the
members and the control of proceedings
by the Speaker. The Courts have no say
in the matter and should really have
none."
The Ld. Additional Solicitor General has also placed
reliance on certain observations of this court in Indira Nehru
Gandhi vs. Raj Narain [1975 Suppl. SCC 1], in the context
of application of Article 122 on the contentions regarding
unconstitutionality of the Constitution (30th Amendment) Act
1975. Beg J. in the course of his judgment in Paras 506 &
507 observed as under:-
"506.Article 122 of the Constitution
prevents this Court from going into any
question relating to irregularity of
proceedings "in Parliament".
XXXXXXXXXXXXXXXX
507.What is alleged by the election
petitioner is that the opposition members
of Parliament, who had been detained
under the preventive detention laws, were
entitled to get notice of the proposed
enactments and the Thirty-ninth
Amendment, so as to be present "in
Parliament", to oppose these changes in
the law. I am afraid, such an objection is
directly covered by the terms of Article
122 which debars every court from
examining the propriety of proceedings
"in Parliament". If any privileges of
members of Parliament were involved, it
was open to them to have the question
raised "in Parliament". There is no
provision of the Constitution which has
been pointed out to us providing for any
notice to each member of Parliament.
That, I think, is also a matter completely
covered by Article 122 of the
Constitution. All that this Court can look
into, in appropriate cases, is whether the
procedure which amounts to legislation
or, in the case of a constitutional
amendment, which is prescribed by
Article 368 of the Constitution, was gone
through at all. As a proof of that,
however, it will accept, as conclusive
evidence, a certificate of the Speaker that
a Bill has been duly passed. (see: State of
Bihar v. Kameshwar(AIR 1952 SC 252,
266: 1952 SCR 889)"
(Emphasis supplied)
In the same case construing the effect of the judgment in
the case of Pandit Sharma (II), Beg J. observed as under in
para 508:-
"508. Again, this Court has held, in
Sharma v. Sri Krishna(AIR 1960 SC 1186,
1189: (1961) 1 SCR 96) that a notice
issued by the Speaker of a Legislature for
the breach of its privilege cannot be
questioned on the ground that the rules
of procedure relating to proceedings for
breach of privilege have not been
observed. All these are internal matters of
procedure which the Houses of
Parliament themselves regulate."
The submission of the Ld. Additional Solicitor General is
that the court recognized the inhibition against judicial
scrutiny of internal matters of procedure in which the Houses
of Parliament can rightfully assert the exclusive power to self-
regulate.
In our considered view, the question before the court in
the case of Indira Nehru Gandhi essentially pertained to the
lawfulness of the session of Parliament that had passed the
constitutional amendment measure. The concern of the court
did not involve the legality of the act of the legislative body. As
regards the views based on the holding in the case of Pandit
Sharma, it has already been observed that it was rather
premature for the court to consider as to whether any illegality
vitiated the process of the legislative assembly.
The prohibition contained in Article 122 (1) does not
provide immunity in cases of illegalities. In this context,
reference may also be made to the case of Smt. S.
Ramaswami vs. Union of India [1992 Suppl. (1) SCR 108].
The case mainly pertained to Article 124 (4) read with Judges
(Inquiry) Act 1968. While dealing, inter alia, with the
overriding effect of the rules made under Article 124(5) over
the rules made under Article 118, this court at page 187 made
the following observations:-
"We have already indicated the
constitutional scheme in India and the
true import of clauses(4) and (5) of article
124 read with the law enacted under
Article 124(5), namely, the Judges
(Inquiry) Act, 1968 and the Judges
(Inquiry) Rules, 1969, which, inter alia
contemplate the provision for an
opportunity to the concerned Judge to
show cause against the finding of 'guilty'
in the report before the Parliament takes
it up for consideration along with the
motion for his removal. Along with the
decision in Keshav Singh has to be read
the declaration made in Sub-Committee
on Judicial Accountability that 'a law
made under Article 124(5) will override
the rules made under Article 118 and
shall be binding on both the Houses of
Parliament. A violation of such a law
would constitute illegality and could not
be immune from judicial scrutiny under
Article 122(1)'. The scope of permissible
challenge by the concerned Judge to the
order of removal made by the President
under Article 124(4) in the judicial review
available after making of the order of
removal by the President will be
determined on these
considerations........."
(Emphasis supplied)
The learned counsel for petitioners would refer, in the
above context, to a number of decisions rendered by different
High Courts adopting a similar approach to construe Article
122 or provisions corresponding thereto in other enactments.
Article 122(1) thus must be found to contemplate the
twin test of legality and constitutionality for any proceedings
within the four walls of Parliament. The fact that the case of
UP Assembly dealt with the exercise of the power of the House
beyond its four-walls does not affect this view which explicitly
interpreted a constitutional provision dealing specifically with
the extent of judicial review of the internal proceedings of the
legislative body. In this view, Article 122(1) displaces the
English doctrine of exclusive cognizance of internal
proceedings of the House rendering irrelevant the case law
that emanated from courts in that jurisdiction. Any attempt to
read a limitation into Article 122 so as to restrict the court's
jurisdiction to examination of the Parliament's procedure in
case of unconstitutionality, as opposed to illegality would
amount to doing violence to the constitutional text. Applying
the principle of "expressio unius est exclusio alterius"
(whatever has not been included has by implication been
excluded), it is plain and clear that prohibition against
examination on the touchstone of "irregularity of procedure"
does not make taboo judicial review on findings of illegality or
unconstitutionality.
Parameters for Judicial review Re: Exercise of
Parliamentary privileges
Learned Additional Solicitor General submitted that
having regard to the jurisdiction vested in the judicature
under Articles 32 and 226 of the Constitution on the one hand
and the tasks assigned to the legislature on the other, the two
organs must function rationally, harmoniously and in a spirit
of understanding within their respective spheres for such
harmonious working of the three constituents of the
democratic State alone will help the peaceful development,
growth and stabilization of the democratic way of life in the
country. We are in full agreement with these submissions.
The Additional Solicitor General has further submitted
that while having regard to the importance of the functions
discharged by Parliament under the Constitution and the
majesty and grandeur of its task, it being the ultimate
repository of the faith of the people, it must be expected that
Parliament would always perform its functions and exercise its
powers, privileges and immunities in a reasonable manner, the
reasonableness of the manner of exercise not being amenable
to judicial review. His submission is that if Parliament were to
exercise its powers and privileges in a manner violative or
subversive of, or wholly abhorrent to the Constitution, a
limited area of judicial scrutiny would be available, which
limited judicial review would be distinct from the area of
judicial review that is available when administrative exercise of
power under a statute falls for consideration. His argument is
that such limited judicial review is distinct from the exercise of
powers coupled with a purpose and also distinct from judicial
scrutiny on the ground of mala fides. It is his contention that
the courts of judicature in India have the power of judicial
review to determine the existence of privilege but once privilege
is shown to exist, the exercise of that privilege and the manner
of exercise that privilege must be left to the domain of
Parliament without any interference. Further, learned
Additional Solicitor General submits that while what takes
place within the walls of the Parliament is not available for
scrutiny and even when the Parliament deals with matters
outside its walls, in a matter supported by an acknowledged
privilege, there would be little scrutiny and very limited and
restricted judicial review.
We find substance in the submission that it is always
expected, rather it should be a matter of presumption, that
Parliament would always perform its functions and exercise its
powers in a reasonable manner. But, at the same time there
is no scope for a general rule that the exercise of powers by the
legislature is not amenable to judicial review. This is neither
the letter nor the spirit of our Constitution. We find no reason
not to accept that the scope for judicial review in matters
concerning Parliamentary proceedings is limited and
restricted. In fact this has been done by express prescription
in the constitutional provisions, including the one contained in
Article 122(1). But our scrutiny cannot stop, as earlier held,
merely on the privilege being found, especially when breach of
other constitutional provisions has been alleged.
It has been submitted by the learned Additional Solicitor
General that judicial review is the ability of the courts to
examine the validity of action. Validity can be tested only with
reference to a norm. He argues that where judicially
manageable standards, that is normative standards, are not
available, judicial review must be impliedly excluded. He has
submitted that Parliament is not a body inferior to the courts.
An administrative tribunal in whom statutory jurisdiction has
been vested can certainly be subjected to judicial review to
discover errors of fact or errors of law within its jurisdiction,
but Parliament cannot be attributed jurisdictional errors.
We find the submissions substantially correct but not
entirely correct. Non-existence of standards of judicial review
is no reason to conclude that judicial scrutiny is ousted. If
standards for judicial review of such matters as at hand are
not yet determined, it is time to do so now. Parliament indeed
is a coordinate organ and its views do deserve deference even
while its acts are amenable to judicial scrutiny. While its acts,
particularly of the nature involved here ought not to be tested
in the same manner as an ordinary administrative action
would be tested, there is no foundation to the plea that a
Legislative body cannot be attributed jurisdictional error.
The learned Additional Solicitor General would further
argue that the exercise of powers and privileges must not be
treated as exercise of jurisdiction, but in fact exercise of
constituent power to preserve its character. He stated that the
Constitution did not contemplate that the contempt of
authority of Parliament would actually be tried and punished
in a Court of Judicature. He submitted that the frontiers of
judicial review have now widened in that illegality, irrationality
and procedural impropriety could be causes, but such
principles have absolutely no basis in judging Parliament's
action.
While we agree that contempt of authority of Parliament
can be tried and punished nowhere except before it, the
judicial review of the manner of exercise of power of contempt
or privilege does not mean the said jurisdiction is being
usurped by the judicature. As has been noticed, in the
context of Article 122(1), mere irregularity of the procedure
cannot be a ground of challenge to the proceedings in
Parliament or effect thereof, and while same view can be
adopted as to the element of "irrationality", but in our
constitutional scheme, illegality or unconstitutionality will not
save the Parliamentary proceedings.
It is the submission of the learned Additional Solicitor
General that the proceedings in question were proceedings
which were entitled to protection under Article 105(2). In
other words, in respect of proceedings, if a member is offered
immunity, Parliament too is offered immunity. The actions of
Parliament, except when they are translated into law, cannot
be questioned in court.
We find the argument to be founded on reading of Article
105(2) beyond its context. What is declared by the said clause
as immune from liability "to any proceedings in any court" is
not any or every act of the Legislative body or members
thereof, but only matters "in respect of anything said or any
vote given" by the members "in Parliament or any Committee
thereof". If Article 105(2) were to be construed so broadly, it
would tend to save even the legislative Acts from judicial gaze,
which would militate against the constitutional provisions.
The learned Additional Solicitor General would urge that
to view Parliament as a body which is capable of committing
an error in respect of its powers, privileges and immunities
would be an indirect comment that Parliament may act
unwarrantedly. There is every hope that the Indian
Parliament would never punish one for 'an ugly face', or apply
a principle which is abhorrent to the constitution.
The learned counsel for the petitioners, on the other
hand, have submitted that upon it being found that the
plenitude of powers possessed by the Parliament under the
written Constitution is subject to legislative competence and
restrictions of fundamental rights; the general proposition that
fundamental rights cannot be invoked in matters concerning
Parliamentary privileges being unacceptable; even a member of
legislature being entitled to the protection of Articles 20 & 21
in case the exercise of Parliamentary privilege; and Article
122(1) contemplating the twin test of legality and
constitutionality for any proceedings within the four walls of
Parliament, as against mere procedural irregularity, thereby
displacing the English doctrine of exclusive cognizance of
internal proceedings of the House, the restrictions on judicial
review propagated by learned Additional Solicitor General do
not deserve to be upheld.
We are of the view that the manner of exercise of the
power or privilege by Parliament is immune from judicial
scrutiny only to the extent indicated in Article 122(1), that is
to say the Court will decline to interfere if the grievance
brought before it is restricted to allegations of "irregularity of
procedure". But in case gross illegality or violation of
constitutional provisions is shown, the judicial review will not
be inhibited in any manner by Article 122, or for that matter
by Article 105. If one was to accept what was alleged while
rescinding the resolution of expulsion by the 7th Lok Sabha
with conclusion that it was "inconsistent with and violative of
the well-accepted principles of the law of Parliamentary
privilege and the basic safeguards assured to all enshrined in
the Constitution", it would be partisan action in the name of
exercise of privilege. We are not going into this issue but
citing the incident as an illustration.
Having concluded that this Court has the jurisdiction to
examine the procedure adopted to find if it is vitiated by any
illegality or unconstitutionality, we must now examine the
need for circumspection in judicial review of such matters as
concern the powers and privileges of such august body as the
Parliament.
The learned Counsel for petitioners have submitted that
the expanded understanding of the fundamental rights in
general and Articles 14 and 21 in particular, incorporates
checks on arbitrariness. They place reliance on the case of
Bachan Singh v. State of Punjab [(1982) 3 SCC 24].
In the case of Bachan Singh, this court, inter alia, held,
that "Article 14 enacts primarily a guarantee against
arbitrariness and inhibits State action, whether legislative or
executive, which suffers from the vice of arbitrariness" and
that "Article 14 . was primarily a guarantee against
arbitrariness in State action". It was held in the context of
Article 21 that :-
"17. The third fundamental right which
strikes against arbitrariness in State
action is that embodied in Article 21.
.
Article 21 affords
protection not only against executive
action but also against legislation and
any law which deprives a person of his
life or personal liberty would be invalid
unless it prescribes a procedure for such
deprivation which is reasonable, fair and
just. The concept of reasonableness, it
was held, runs through the entire fabric
of the Constitution....
..Every facet of the law which
deprives a person of his life or personal
liberty would therefore have to stand the
test of reasonableness, fairness and
justness in order to be outside the
inhibition of Article 21."
(Emphasis supplied)
It has been submitted by the petitioners that since the
validity of the procedure followed in enforcement of the
privilege by the Houses of Parliament is to be tested on the
touchstone of Article 20 and Article 21, the aforesaid tests of
reasonableness, non-arbitrariness, non-perversity, fairness
and justice come into play even in relation to the action of the
Legislature.
On the other hand, learned Additional Solicitor General
submits that the full effect of judicial review with reference to
Article 21 in matters involving claim of privileges by the
legislature was not examined in the cases of Pandit Sharma
or the case of UP Assembly. He further submits that the
expanded understanding of Article 21, taking into account its
inter-relationship with Articles 14 and 19 pertains to
developments subsequent to the aforementioned cases relating
to privileges of the legislature and that while scrutinizing the
exercise of power by Parliament it would not be possible to
employ either the test of "fair, just and reasonable" or the
principle of reasonableness in administrative action.
The submission further is that the only principle which
can afford judicial review is to examine whether the rule of the
Constitution which pre-supposes the underlying foundation of
separation of powers has not been infringed and a manifest
intrusion into judicial power vested in courts of justice has not
taken place. To put slightly differently, according to the
learned Additional Solicitor General, the limited judicial review
would involve an inquiry as to whether the Parliament has not
exercised privileges which are really matters covered by a
statute and whose adjudication would involve the exercise of
judicial power conferred by a statute or the Constitution.
According to the learned Additional Solicitor General, the
discussion with reference to Article 21 in the case of Pandit
Sharma (I) proceeded upon a demurrer and, therefore, there
was no scope for a full-fledged discussion on the amenability
of the latter part of article 105(3) or Article 194(3) to the
restrictions contained in Article 21.
In above context, he would refer to the case of Jatish
Chandra Ghosh v. Hari Sadhan Mukherjee [(1961) 3 SCR
486]. In that case, Dr. Ghosh, a member of the legislative
assembly, had published in a journal certain questions which
he had put in the assembly but which had been disallowed by
the Speaker. The questions disparaged the conduct of the
respondent who filed a criminal complaint against him and
others alleging defamation. Dr. Ghosh pleaded privileges and
immunity under Article 194 as a bar to criminal prosecution.
This claim was negatived, inter alia, on the grounds that the
matter fell clearly outside the scope of Article 194(1) and
Article 194(2) not being applicable since the publication was
not under the authority of the legislature nor could be termed
as something said or vote given in the legislature. The claim
for immunity under Article 194(3) was also repelled for the
reason the immunity enjoyed by a member of House of
Commons is clearly confined to speeches made in Parliament
and does not extend to the publication of the debate outside.
It was held as under:-
"There is no absolute privilege attaching
to the publication of extracts from the
proceedings in the House of Commons
and a member, who has absolute
privilege in respect of his speech in the
House itself, can claim only a qualified
privilege in respect of it if he causes the
same to be published in the public
press."
The Ld. Counsel for Union of India concluded his
submissions stating that in any exercise of judicial scrutiny of
acts of the legislature, there would always be a presumption
raised in favour of legitimate exercise of power and no motive
or mala fide can be attributed to it. In this context, he would
place reliance on observations of this court in the cases of K.
Nagaraj v. State of A.P. [(1985) 1 SCC 523] and T. Venkata
Reddy v. State of A.P. [(1985) 3 SCC 198].
In the case of Nagaraj, this court observed in Para 36 as
under:-
"36. The argument of mala fides
advanced by Shri A.T. Sampath, and
adopted in passing by some of the other
counsel, is without any basis. The burden
to establish mala fides is a heavy burden
to discharge. Vague and casual
allegations suggesting that a certain act
was done with an ulterior motive cannot
be accepted without proper pleadings and
adequate proof, both of which are
conspicuously absent in these writ
petitions. Besides, the Ordinance-making
power being a legislative power, the
argument of mala fides is misconceived.
The Legislature, as a body, cannot be
accused of having passed a law for an
extraneous purpose. Its reasons for
passing a law are those that are stated in
the Objects and Reasons and if, none are
so stated, as appear from the provisions
enacted by it. Even assuming that the
executive, in a given case, has an ulterior
motive in moving a legislation, that
motive cannot render the passing of the
law mala fide. This fund of "transferred
malice" is unknown in the field of
legislation."
(Emphasis supplied)
In the case of T. Venkata Reddy, the relevant
observations in Para 14 read thus:-
"14. . . the question is whether
the validity of an Ordinance can be tested
on grounds similar to those on which an
executive or judicial action is tested. The
legislative action under our Constitution
is subject only to the limitations
prescribed by the Constitution and to no
other. Any law made by the Legislature,
which it is not competent to pass, which
is violative of the provisions in Part III of
the Constitution or any other
constitutional provision is ineffective.
.. While the courts can declare
a statute unconstitutional when it
transgresses constitutional limits, they
are precluded from inquiring into the
propriety of the exercise of the legislative
power. It has to be assumed that the
legislative discretion is properly
exercised. The motive of the Legislature in
passing a statute is beyond the scrutiny
of courts. Nor can the courts examine
whether the Legislature had applied its
mind to the provisions of a statute before
passing it. The propriety, expediency and
necessity of a legislative act are for the
determination of the legislative authority
and are not for determination by the
courts. An Ordinance passed either
under Article 123 or under Article 213 of
the Constitution stands on the same
footing. . It cannot be treated
as an executive action or an
administrative decision."
(Emphasis supplied)
On the question of mala fide, in the case of Pandit
Sharma (I), it was noticed that allegations in that nature had
been made against the Privileges Committee of the Legislative
Assembly. This Court observed "the Committee of Privileges
ordinarily includes members of all parties represented in the
House and it is difficult to expect that the Committee, as a
body, will be actuated by any mala fide intention against the
petitioner". In the case of U.P. Assembly, after finding that
Article 20 and Article 21 would apply, this Court in Para 125
recognized the permissibility of judicial review in the face of
the impugned action being vitiated on account of caprice or
mala fides, in the following words:-
"If in a given case, the allegation made by
the citizen is that he has been deprived of
his liberty not in accordance with law,
but for capricious or mala fide reasons,
this Court will have to examine the
validity of the said contention, and it
would be no answer in such a case to say
that the warrant issued against the
citizen is a general warrant and a general
warrant must stop all further judicial
inquiry and scrutiny."
The learned counsel for Union of India conceded that
there would be a marginal power of correcting abuse and,
therefore, for judicial intervention but this necessity would
arise only in most outrageous or absurd situations where the
power had been abused under the guise of exercise of
privilege. He again referred in this context to the judgment of
Canada Supreme Court in the case of Harvey vs. New
Brunswick [1996 (2) SCR 876] in particular to observations
at pages 159 as under:-
"This is not to say that the courts have
no role to play in the debate which arises
where individual rights are alleged to
conflict with parliamentary privilege.
To prevent abuses
cloaked in the guise of privilege from
trumping legitimate Charter interests, the
courts must inquire into the legitimacy of
a claim of parliamentary privilege.
.."
(Emphasis supplied)
While we have already rejected the reliance on the case
mentioned above in support of the plea of exclusive cognizance
vesting in the Legislature, and restriction of judicial review to
the extent of finding the privilege, we find support to the case
set up by the petitioners from constitutional provisions and
debates thereupon which show that it is the duty of the Court
to inquire into the legitimacy of the exercise of the power.
Dr. B.R. Ambedkar has described Article 32 as the very
soul of the Constitution very heart of it most important
Article. That the jurisdiction conferred on this court by Article
32 is an important and integral part of the basic structure of
the Constitution of India and that no act of parliament can
abrogate it or take it away except by way of impermissible
erosion of fundamental principles of the constitutional scheme
are settled propositions of Indian jurisprudence.
In the case of State of Rajasthan v. Union of India
[(1977) 3 SCC 592], while dealing with the issues arising out
of communication by the then Union Home Minister to the
nine States asking them to advise their respective Governors
to observe the legislative assemblies and seek therefore
mandate from the people, this court observed in Para 40 as
under:-
"This Court has never abandoned its
constitutional function as the final Judge
of constitutionality of all acts purported
to be done under the authority of the
Constitution. It has not refused to
determine questions either of fact or of
law so long as it has found itself
possessed of power to do it and the cause
of justice to be capable of being
vindicated by its actions. But, it cannot
assume unto itself powers the
Constitution lodges elsewhere or
undertake tasks entrusted by the
Constitution to other departments of
State which may be better equipped to
perform them. The scrupulously
discharged duties of all guardians of the
Constitution include the duty not to
transgress the limitations of their own
constitutionally circumscribed powers by
trespassing into what is properly the
domain of other constitutional organs.
Questions of political wisdom or executive
policy only could not be subjected to
judicial control. No doubt executive policy
must also be subordinated to
constitutionally sanctioned purposes. It
has its sphere and limitations. But, so
long as it operates within that sphere, its
operations are immune from judicial
interference. This is also a part of the
doctrine of a rough separation of powers
under the Supremacy of the Constitution
repeatedly propounded by this Court and
to which the Court unswervingly adheres
even when its views differ or change on
the correct interpretation of a particular
constitutional provision."
(Emphasis supplied)
We reaffirm the said resolve and find no reason why in
the facts and circumstances at hand this court should take a
different view so as to abandon its constitutional functions as
the final judge of constitutionality of all acts purported to be
done under the authority of the Constitution, though at the
same time refraining from transgressing into the sphere that is
properly the domain of the Parliament.
Learned Additional Solicitor General submits that in the
case of UP Assembly, the court had placed reliance on Articles
208 and 212 which contemplate that rules can be framed by
the legislature subject to the provisions of the Constitution
which in turn implies that such rules are compliant with the
fundamental rights guaranteed by Part III. He submits that if
the rules framed under Article 118 (which corresponds to
Article 208) are consistent with Part III of the Constitution
then the exercise of powers, privileges and immunities is
bound to be a fair exercise and Parliament can be safely
attributed such an intention.
While it is true that there is no challenge to the Rules of
Procedure and Conduct of Business in Lok Sabha and Rules of
Procedure and Conduct of Business in the Council of States,
as made by the two Houses of Parliament in exercise of
enabling powers under Article 118 (1), we are of the opinion
that mere availability of Rules is never a guarantee that they
have been duly followed. What we are concerned with, given
the limits prescribed in Article 122(1), is not "irregularity of
procedure" but illegalities or unconstitutionalities.
In the context of the discretionary power conferred on the
Central Government by Section 237(b) of the Companies Act,
1956 to order an investigation into the affairs of a company in
the event of the Government forming an opinion that
circumstances exist suggesting, inter alia, that the business of
the company is being conducted with intent to defraud its
creditors, this Court in the case of Barium Chemicals Ltd.
vs. Company Law Board [AIR 1967 SC 295] held that the
scope for judicial review of the action would be "strictly
limited". While no difficulty would arise if it could be shown
that no opinion had been formed, it was observed that:-
".there is a difference between not
forming an opinion at all and forming an
opinion upon grounds, which, if a court
could go into that question at all, could
be regarded as inapt or insufficient or
irrelevant."
It was further observed that:-
"No doubt the formation of opinion is
subjective but the existence of
circumstances relevant to the inference
as the sine qua non for action must be
demonstrable."
(Emphasis supplied)
It was observed in Para 60 of the judgment as under:-
"Though an order passed in exercise of
power under a statute cannot be
challenged on the ground of propriety or
sufficiency, it is liable to be quashed on
the ground of mala fides dishonesty or
corrupt purpose. Even if it is passed in
good faith and with the best of intention
to further the purpose of the legislation
which confers the power, since the
Authority has to act in accordance with
and within the limits of that legislation,
its order can also be challenged if it is
beyond those limits or is passed on
grounds extraneous to the legislation or if
there are no grounds at all for passing it
or if the grounds are such that no one
can reasonably arrive at the opinion or
satisfaction requisite under the
legislation. "
(Emphasis supplied)
In the case of Rohtas Industries Ltd. v. S.D. Agarwal
[(1969) 1 SCC 325], facing similar issues in the context of
same statutory provisions, this Court followed the principle
laid down in the case of Barium Chemicals and held that in
the event of existence of requisite conditions being
challenged:-
"..the courts are entitled to examine
whether those circumstances were
existing when the order was made. In
other words, the existence of the
circumstances in question are open to
judicial review though the opinion formed
by the Government is not amenable to
review by the Courts."
(Emphasis supplied)
Holding that there must be a real exercise of the power
by the authority, it was further observed that:-
"authority must be exercised
honestly and not for corrupt or ulterior
purposes. The authority must form the
requisite opinion honestly and offer
applying its mind to the relevant
materials before it."
XXXXXXXXXXX
"It 'must act reasonably and not
capriciously or arbitrarily' and that if it
were established that there were no
materials on which requisite opinion
could be formed, the Court could
legitimately 'infer that the authority did
not apply its mind to the relevant facts'."
(Emphasis supplied)
The case of S.R. Bommai v. Union of India [1994 (3)
SCC 1] had given rise to challenge to the constitutional validity
of the proclamation under Article 356 issued by the President,
inter alia, ordering dissolution of the Legislative Assembly of a
State, assuming to himself the functions of the Government of
the State, upon declaration of satisfaction that a situation had
arisen in which government of the said State cannot be carried
on in accordance with the provisions of the Constitution. The
matter had given rise to questions about the scope of judicial
review of the satisfaction recorded by the President in such
behalf. It was held through majority by the Constitution
Bench (9 Judges) of this Court that the exercise of power by
the President under Article 356(1) to issue such a
proclamation is subject to judicial review at least to the extent
of examining whether the conditions precedent to the issuance
of the proclamation have been satisfied or not. For purposes
of such examination, the exercise would necessarily involve
"the scrutiny as to whether there existed material" for such a
satisfaction being arrived at. It was held that it was not "any
material" but material "which would lead to the conclusion"
requisite for such proclamation and therefore, "the material in
question has to be such as would induce a reasonable man to
come to the conclusion in question". The Court held that
although "the sufficiency or otherwise of the material cannot
be questioned, the legitimacy of inference drawn from such
material is certainly open to judicial review." The following
observations appearing in Para 96 of the judgment in the case
of S.R. Bommai need to be quoted in extenso:-
"Democracy and federalism are the
essential features of our Constitution and
are part of its basic structure. Any
interpretation that we may place on
Article 356 must, therefore help to
preserve and not subvert their fabric. The
power vested de jure in the President but
de facto in the Council of Ministers under
Article 356 has all the latent capacity to
emasculate the two basic features of the
Constitution and hence it is necessary to
scrutinise the material on the basis of
which the advice is given and the
President forms his satisfaction more
closely and circumspectly. This can be
done by the courts while confining
themselves to the acknowledged
parameters of the judicial review as
discussed above, viz., illegality,
irrationality and mala fides. Such
scrutiny of the material will also be
within the judicially discoverable and
manageable standards."
(Emphasis supplied)
Ramaswamy, J. in his separate judgment in the case of
S.R. Bommai observed in Para 255 as under:-
"Judicial review is a basic feature of the
Constitution. This Court/High Courts
have constitutional duty and
responsibility to exercise judicial review
as sentinel on the qui vive. Judicial
review is not concerned with the merits of
the decision, but with the manner in
which the decision was taken."
(Emphasis supplied)
In Para 256, Ramaswamy, J. clarified that:-
"Judicial reveiw must be distinguished
from the justiciability by the court. The
two concepts are not synonymous. The
power of judicial review is a constituent
power and cannot be abdicated by
judicial process of interpretation.
However, justiciability of the decision
taken by the President is one of exercise
of the power by the court hedged by self-
imposed judicial restraint. It is a cardinal
principle of our Constitution that no one,
howsoever lofty, can claim to be the sole
judge of the power given under the
Constitution. Its actions are within the
confines of the powers given by the
Constitution."
(Emphasis supplied)
At the same time he circumscribed the limits by
observing, in Para 260, as under:-
"The traditional parameters of judicial
review, therefore, cannot be extended to
the area of exceptional and extraordinary
powers exercised under Article 356. The
doctrine of proportionality cannot be
extended to the power exercised under
Article 356 .."
In Para 215, he held that:-
"The doctrine that the satisfaction
reached by an administrative officer
based on irrelevant and relevant grounds
and when some irrelevant grounds were
taken into account, the whole order gets
vitiated has no application to the action
under Article 356. Judicial review of the
Presidential Proclamation is not
concerned with the merits of the decision,
but to the manner in which the decision
had been reached. The satisfaction of the
President cannot be equated with the
discretion conferred upon an
administrative agency, of his subjective
satisfaction upon objective material like
in detention cases, administrative action
or by subordinate legislation. ."
(Emphasis supplied)
Jeevan Reddy and Agrawal, JJ., in their separate but
concurring judgment, held that:-
"..the truth or correctness of the
material cannot be questioned by the
court nor will it go into the adequacy of
the material. It will also not substitute its
opinion for that of the President. Even if
some of the material on which the action
is taken is found to be irrelevant, the
court would still not interfere so long as
there is some relevant material sustaining
the action. The ground of mala fides
takes in inter alia situations where the
Proclamation is found to be a clear case
of abuse of power, or what is sometimes
called fraud on power cases where this
power is invoked for achieving oblique
ends. This is indeed merely an
elaboration of the said ground."
(Emphasis supplied)
They also recognized, in Para 375, the need in such
matters for regard being had to the effect that what was under
the scanner before the adjudicator was the exercise of power
vested in highest constitutional authority. They held as
under:-
"It is necessary to reiterate that the court
must be conscious while examining the
validity of the Proclamation that it is a
power vested in the highest constitutional
functionary of the Nation. The court will
not lightly presume abuse or misuse. The
court would, as it should, tread wearily,
making allowance for the fact that the
President and the Union Council of
Ministers are the best judges of the
situation, that they alone are in
possession of information and material
sensitive in nature sometimes and that
the Constitution has trusted their
judgment in the matter. But all this does
not mean that the President and the
Union Council of Ministers are the final
arbiters in the matter or that their
opinion is conclusive."
(Emphasis supplied)
Jeevan Reddy and Agrawal, JJ., concurred with
Ramaswamy J., by observing, in Para 373, as under:-
"So far as the approach adopted by this
Court in Barium Chemicals is concerned,
it is a decision concerning subjective
satisfaction of an authority created by a
statute. The principles evolved then
cannot ipso facto be extended to the
exercise of a constitutional power under
Article 356. Having regard to the fact that
this is a high constitutional power
exercised by the highest constitutional
functionary of the Nation, it may not be
appropriate to adopt the tests applicable
in the case of action taken by statutory or
administrative authorities nor at any
rate, in their entirety."
(Emphasis supplied)
A controversy similar to the one in the case of S.R.
Bommai arose before this Court in Rameshwar Prasad v.
Union of India [2006(2) SCC 1]. The questions raised once
again concerned the validity of the subjective satisfaction of
the President under Article 356 for issue of proclamation.
Following the spirit of the judgment of S.R. Bommai, with due
deference to the exceptional character of the power exercised
by the President under Article 356 which cannot be treated on
a par with an administrative action and so the validity whereof
cannot be examined by applying the grounds available for
challenge of an administrative action, this Court held that the
power is not absolute but subject to checks & balances and
judicial review.
Summary of the Principles relating to Parameter of
Judicial Review in relation to exercise of Parliamentary
Provisions
We may summarize the principles that can be culled out
from the above discussion. They are:-
a. Parliament is a co-ordinate organ and its views
do deserve deference even while its acts are
amenable to judicial scrutiny;
b. Constitutional system of government abhors
absolutism and it being the cardinal principle
of our Constitution that no one, howsoever
lofty, can claim to be the sole judge of the
power given under the Constitution, mere co-
ordinate constitutional status, or even the
status of an exalted constitutional
functionaries, does not disentitle this Court
from exercising its jurisdiction of judicial
review of action which part-take the character
of judicial or quasi-judicial decision;
c. The expediency and necessity of exercise of
power or privilege by the legislature are for the
determination of the legislative authority and
not for determination by the courts;
d. The judicial review of the manner of exercise of
power of contempt or privilege does not mean
the said jurisdiction is being usurped by the
judicature;
e. Having regard to the importance of the
functions discharged by the legislature under
the Constitution and the majesty and grandeur
of its task, there would always be an initial
presumption that the powers, privileges etc
have been regularly and reasonably exercised,
not violating the law or the Constitutional
provisions, this presumption being a
rebuttable one;
f. The fact that Parliament is an august body of
co-ordinate constitutional position does not
mean that there can be no judicially
manageable standards to review exercise of its
power;
g. While the area of powers, privileges and
immunities of the legislature being exceptional
and extraordinary its acts, particularly relating
to exercise thereof, ought not to be tested on
the traditional parameters of judicial review in
the same manner as an ordinary
administrative action would be tested, and the
Court would confine itself to the acknowledged
parameters of judicial review and within the
judicially discoverable & manageable
standards, there is no foundation to the plea
that a legislative body cannot be attributed
jurisdictional error;
h. The Judicature is not prevented from
scrutinizing the validity of the action of the
legislature trespassing on the fundamental
rights conferred on the citizens;
i. The broad contention that the exercise of
privileges by legislatures cannot be decided
against the touchstone of fundamental rights
or the constitutional provisions is not correct;
j. If a citizen, whether a non-member or a
member of the Legislature, complains that his
fundamental rights under Article 20 or 21 had
been contravened, it is the duty of this Court
to examine the merits of the said contention,
especially when the impugned action entails
civil consequences;
k. There is no basis to claim of bar of exclusive
cognizance or absolute immunity to the
Parliamentary proceedings in Article 105(3) of
the Constitution;
l. The manner of enforcement of privilege by the
legislature can result in judicial scrutiny,
though subject to the restrictions contained in
the other Constitutional provisions, for
example Article 122 or 212;
m. Articles 122 (1) and Article 212 (1) displace the
broad doctrine of exclusive cognizance of the
legislature in England of exclusive cognizance
of internal proceedings of the House rendering
irrelevant the case law that emanated from
courts in that jurisdiction; inasmuch as the
same has no application to the system of
governance provided by Constitution of India
n. Article 122 (1) and Article 212 (1) prohibit the
validity of any proceedings in legislature from
being called in question in a court merely on
the ground of irregularity of procedure;
o. The truth or correctness of the material will
not be questioned by the court nor will it go
into the adequacy of the material or substitute
its opinion for that of the legislature;
p. Ordinarily, the legislature, as a body, cannot
be accused of having acted for an extraneous
purpose or being actuated by caprice or mala
fide intention, and the court will not lightly
presume abuse or misuse, giving allowance for
the fact that the legislature is the best judge of
such matters, but if in a given case, the
allegations to such effect are made, the Court
may examine the validity of the said
contention, the onus on the person alleging
being extremely heavy
q. The rules which the legislature has to make for
regulating its procedure and the conduct of its
business have to be subject to the provisions
of the Constitution;
r. Mere availability of the Rules of Procedure and
Conduct of Business, as made by the
legislature in exercise of enabling powers
under the Constitution, is never a guarantee
that they have been duly followed;
s. The proceedings which may be tainted on
account of substantive or gross illegality or
unconstitutionality are not protected from
judicial scrutiny;
t. Even if some of the material on which the
action is taken is found to be irrelevant, the
court would still not interfere so long as there
is some relevant material sustaining the
action;
u. An ouster clause attaching finality to a
determination does ordinarily oust the power
of the court to review the decision but not on
grounds of lack of jurisdiction or it being a
nullity for some reason such as gross illegality,
irrationality, violation of constitutional
mandate, mala fides, non-compliance with
rules of natural justice and perversity;
It can now be examined if the manner of exercise of the
power of expulsion in the cases at hand suffers from any such
illegality or unconstitutionality as to call for interference by
this Court.
Examination of the individual cases of the Petitioners
It is the contention of the petitioners that the impugned
action on the part of each House of Parliament expelling them
from the membership suffers from the vice of mala fide as
decision had already been taken to expel them. In this context
they would refer, inter alia, to the declaration on the part of
the Hon'ble Speaker, Lok Sabha on the floor of the House on
12th December 2005 that "nobody would be spared". The
contention is that the inquiries were sham and the matter was
approached with a pre-determined disposition against all the
basic cannons of fair play & natural justice.
On the other hand, it has been argued by Shri
Andhyarujina that no mala fide or ulterior motive can be
attributed to the Houses of Parliament also for the reason that
the impugned decisions were taken by the Houses as a whole,
with utmost good faith in the interest of safeguarding the
standing and reputation of Parliament. Learned counsel
would also submit that no member of either House had
disputed the findings of misconduct and it was not open to
anyone to question anything said or done in the House by
suggesting that the actions or words were inspired by
improper motives.
As already observed in earlier part of this judgment, the
Legislature cannot ordinarily be accused of having acted for an
extraneous purpose or being actuated by caprice or malafide
intention. The Court would not lightly presume abuse or
misuse of authority by such august bodies also because
allowance is always to be given to the fact that the legislature
is the best Judge in such matters.
In our considered view, conclusions cannot be drawn so
as to attribute motive to the Houses of Parliament by reading
statements out of the context. The relevant part of the speech
of the Hon'ble Speaker made on the floor of the House on 12th
December 2005 has been extracted in the counter affidavit
filed on behalf of the Union of India. It is pertinent to note that
before stating that nobody would be spared, the Speaker had
exhorted the members of the House to rise to the occasion and
to see to it that such an event does not occur ever in future
and commended that "if anybody is guilty, he should be
punished". It is clear that when he stated that no body would
be spared he was not immediately passing a judgment that the
petitioners were guilty. He was only giving vent to his feeling
on the subject of the proper course of action in the event of
inquiry confirming the facts that had been projected in the
telecast. The finding of guilt would come later. The fact that he
had constituted an Inquiry Committee with members drawn
also from parties in opposition rather goes to show that the
resolve at that stage was to find the truth.
In these circumstances, we are unable to accept the
allegation of malafide on the ground that decision had already
been taken to expel them. Even otherwise, it cannot be
ignored that the dissent within the respective Committees of
the two Houses essentially pertained to the procedure
adopted. Nothing less and nothing more. Further, the reports
of the Committees having been adopted by the respective
chambers of Parliament, the decision of the Committee got
merged into that of the Legislative chamber which being
collective body, it is difficult to attribute motive thereto, in
particular, in the face of the fact that the resolutions in
question were virtually unanimous as there was no demand at
any stage from any quarter for division of votes.
It has been contended by the petitioners that the
circumstances did not warrant the exercise by the Houses of
Parliament of the power of expulsion inasmuch as the persons
behind the sting operations were driven by motives of pelf and
profit. In this context, the learned counsel for petitioners
would refer repeatedly to the evidence, in particular, of Mr.
Aniruddha Bahal as adduced before the Inquiry Committee of
Lok Sabha wherein he would concede certain financial gains
on account of arrangements with the television channels for
telecast of the programme in question.
We are unable to subscribe to this reasoning so as to find
fault with the action that has been impugned before us. We
are not concerned here with what kind of gains, financial or
otherwise, those persons made as had conceived or engineered
the sting operations leading to the material being brought into
public domain through electronic media. This was not an area
of anxiety even for the Houses of Parliament when they set
about probing the matter resulting ultimately in expulsions.
The sole question that was required to be addressed by the
Inquiry Committees and the Legislative chambers revolved
around the issue of misconduct attributed to the individual
members bringing the House in disrepute. We, therefore, reject
the above contention reiterating what we have already
concluded, namely, that the expediency and necessity of
exercise of such a power by the Legislature is for
determination by the latter and not by the Courts.
The petitioners have questioned the validity of the
impugned actions on the ground that the settled procedure
and mechanism for bringing about cessation of the
membership were by-passed.
In the above context, reference was first made to the
procedure prescribed in Article 103 and the Tenth Schedule.
But then, we have already found that the purposes of the
procedure prescribed in both the said provisions of the
Constitution are entirely different. While Article 103 relates to
disqualifications prescribed in Article 102, the tenth schedule
pertains to the disqualification on account of defection. These
provisions have no nexus whatsoever with the exercise of
power of expulsion claimed as a privilege available to the
Houses of Parliament under Article 105(3). This argument,
therefore, cannot cut any ice in favour of the petitioners.
The main thrust of the submissions of the petitioners in
the context of avoidance of settled procedure and mechanism,
however, was on the fact that the machinery of Privileges
Committee for which provision exists in the Rules of Procedure
and Conduct of Business for each of the two Houses was not
resorted to. It has been contended that the matters were
referred, for no just or sufficient reason, to Inquiry Committees
other than the Privileges Committees, in the case of Lok Sabha
to a Committee specially set up for the purpose. This, as per
the arguments vociferously advanced on behalf of the
petitioners, should be held as sufficient to vitiate the whole
process. Mr. Ram Jethamalani, Senior Advocate went to the
extent of suggesting that the procedure followed was ad-hoc
procedure and, therefore, it could not be claimed by anyone
that the established procedure had been complied with.
We find no substance in the abovesaid grievances of the
petitioners. The matters pertaining to the two Members of
Rajya Sabha were referred to the Committee on Ethics which
is also a mechanism provided by the Rules of Procedure and
Conduct of Business in the said House. While it is correct that
the matters pertaining to the Members of Lok Sabha were
referred to a Committee specially constituted for the purpose
but nothing turns on that fact. It may be observed that under
circumstances in question the composition of the Committee
itself is sufficient to show that it was not a partisan
Committee. The terms of reference for the Committee required
it to make investigation into the allegations.
The conclusions reached by the Inquiry Committee and
recommendations made have been accepted by passing of
resolutions by the two Houses that have adopted the reports of
the respective Committees.
Article 118 empowers each House of Parliament to make
rules for regulating its procedure. The rules of the procedure
of both Houses permit constitution of Committees. There is no
illegality attached to constitution of a Special Committee by
the Speaker, Lok Sabha for purposes of investigation into the
allegations against members of the said House. The argument
of ad-hoc procedure, therefore, does not appeal to us.
The petitioners' case is that the procedures adopted by
the Committees of the two Houses were neither reasonable nor
fair. Further, they contend that the entire inquiry was
improper and illegal inasmuch as rules of natural justice were
flouted. In this context, the grievances of the petitioners are
manifold. They would state that proper opportunity was not
given to them to defend themselves; they were denied the
opportunity of defending themselves through legal counsel or
to give opportunity to explain; the request for supply of the
material, in particular the un-edited versions of videography
for testing the veracity of such evidence was turned down and
doctored or morphed video-clippings were admitted into
evidence, the entire procedure being unduly hurried. As
already noted the scope of judicial review in these matters is
restricted and limited. Regarding non-grant of reasonable
opportunity, we reiterate what was recently held in Jagjit
Singh v. State of Haryana & Ors. [WP (C) No. 287 of 2004
decided on 11.12.2006] that the principles of natural justice
are not immutable but are flexible; they cannot be cast in a
rigid mould and put in a straitjacket and the compliance
thereof has to be considered in the facts and circumstances of
each case.
We outrightly reject the argument of denial of reasonable
opportunity and also that proceedings were concluded in a
hurry. It has become almost fashionable to raise the banner of
"Justice delayed is justice denied" in case of protracted
proceedings and to argue "Justice hurried is justice buried" if
the results are quick. We cannot draw inferences from the
amount of time taken by the Committees that inquired the
matters as no specific time is or can be prescribed. Further
such matters are required to be dealt with utmost expedition
subject to grant of reasonable opportunity, which was granted
to the petitioners.
As has been pointed out by the learned counsel on behalf
of the Union of India, basing his submissions on the main
report of the Inquiry Committee of Lok Sabha, the request for
supply of full-footage of video recordings and audio tapes or
extension of time or representation through counsel for such
purposes did not find favour with the Inquiry Committee
mainly because the Committee had offered to the concerned
Members of Lok Sabha an opportunity to view the relevant
video-footage that was available with the Committee and point
out the discrepancies therein, if any, to the it. But, as is
mentioned in the report copy of which has been made
available by the Union of India to us, the petitioners
themselves chose to turn down the said offer. The situation
was almost similar to the one in Jagjit Singh's case.
We agree with the submissions of the learned counsel for
Union of India that the Inquiry Committee in the face of the
refusal on the part of the concerned members was fully
justified in not giving any credence to the objections that the
video-clippings were doctored or morphed. The Committee in
these circumstances could not be expected but to proceed to
draw conclusions on the basis of the available material.
The reports of the Inquiry Committee of Lok Sabha and
the Committee on Ethics of Rajya Sabha indicate that both of
the said Committees had called for explanations from each of
the Members in question and had given due consideration to
the same. The submissions of the learned counsel for Union of
India that the proceedings of the respective Committees were
open to one and all, including these petitioners who actually
participated in the proceedings could not be refuted.
Therefore, it is not permissible to the petitioners to contend
that evidence had been taken behind their back. The reports
further show that the Committees had taken care not to
proceed on the edited versions of the video recordings. Each of
them insisted and procured the raw video-footage of the
different sting operations and drew conclusions after viewing
the same. As pointed out by the learned counsel for Union of
India, the evidence contained in the video recordings
indicating demand or acceptance of money was further
corroborated in two cases by the admissions made by the two
Members of Rajya Sabha. Dr. Chhattrapal Singh Lodha had
sought to attribute the receipt of money to a different
transaction connected with some organization he was heading.
But this explanation was not believed by the Committee on
Ethics that unanimously found his complicity in unethical
behavior on account of acceptance of money for tabling
questions in Rajya Sabha. Dr. Swami Sakshiji Maharaj, on the
other hand, went to the extent of expressing his regrets and
displaying a feeling of shame for his conduct even before the
Committee on Ethics.
It is the contention of the petitioners that the evidence
relied upon by the two Houses of Parliament does not inspire
confidence and could not constitute a case of breach of
privilege. Their argument is that the decision of expulsion is
vitiated since it violated all sense of proportionality, fairness,
legality, equality, justice or good conscience, and it being bad
in law also because, as a consequence, the petitioners have
suffered irreparable loss inasmuch as their image and prestige
had been lowered in the eyes of the electorate.
We are of the considered view that the impugned
resolutions of Lok Sabha and Rajya Sabha cannot be
questioned before us on the plea of proportionality. We are not
sitting in appeal over the decision of the Legislative chambers
with regard to the extent of punishment that deserved to be
meted out in cases of this nature. That is a matter which must
be left to the prerogative and sole discretion of the legislative
body. All the more so because it is the latter which is the best
Judge in exercise of its jurisdiction the object of which is self-
protection. So long as the orders of expulsion are not illegal or
unconstitutional, we are not concerned with the consequences
for the petitioners on account of these expulsions.
In these proceedings, this Court cannot not allow the
truthfulness or correctness of the material to be questioned or
permit the petitioners to go into the adequacy of the material
or substitute its own opinion for that of the Legislature.
Assuming some material on which the action is taken is found
to be irrelevant, this Court shall not interfere so long as there
is some relevant material sustaining the action. We find this
material was available in the form of raw footage of video
recordings, the nature of contents whereof are reflected in the
Inquiry reports and on which subject the petitioners have not
raised any issue of fact.
On perusal of the Inquiry reports, we find that there is no
violation of any of the fundamental rights in general and
Articles 14, 20 or 21 in particular. Proper opportunity to
explain and defend having been given to each of the
petitioners, the procedure adopted by the two Houses of
Parliament cannot be held to be suffering from any illegality,
irrationality, unconstitutionality, violation of rules of natural
justice or perversity. It cannot be held that the petitioners
were not given a fair deal.
Before concluding, we place on record our appreciation
for able assistance rendered by learned counsel for the parties
in the matter.
In view of above, we find no substance in the pleas of the
petitioners. Resultantly, all the Petitions and Transferred
Cases questioning the validity of the decisions of expulsion of
the petitioners from the respective Houses of Parliament, being
devoid of merits are dismissed.
===============================================================
RAVEENDRAN J.,
"Those three great institutions the Parliament, the Press
(Media) and the Judges are safeguards of justice and liberty,
and they embody the spirit of the Constitution."
- Lord Denning
I have had the privilege of reading the exhaustive and erudite
judgment of the learned Chief Justice and the illuminating concurring
judgment of learned Brother Thakker J., upholding the expulsion of ten
members of Lok Sabha and one member of Rajya Sabha. I respectfully
disagree.
Factual Background :
2. On 12.12.2005, a TV News Channel - Aaj Tak showed some video-
footage of some persons, alleged to be members of Parliament accepting
money for tabling questions or raising issues in the House, under the caption
'operation Duryodhana' ("Cash for Questions"). On the same day when the
House met, the Hon'ble Speaker made the following statement :-
"Hon. Members, certain very serious events have come to my
notice as also of many other Hon. Members. It will be looked
into with all importance it deserves. I have already spoken to
and discussed with all Hon. Leaders of different parties,
including the Hon. Leader of the Opposition, and all have
agreed that the matter is extremely serious if proved to be
correct. I shall certainly ask the Hon. Members to explain what
has happened. In the meantime, I am making a personal request
to all them 'please do not attend the Sessions of the House until
the matter is looked into and a decision is taken' I have no
manner of doubt that all sections of the House feel deeply
concerned about it. I know that we should rise to the occasion
and we should see that such an event does not occur ever in
future and if anybody is guilty, he should be punished. Nobody
would be spared. We shall certainly respond to it in a manner
which behaves us. Thank you very much."
On the same day, at about 6 P.M., the Hon'ble Speaker made another
statement on the issue, announcing the constitution of an Enquiry Committee
consisting of five Parliamentarians. Relevant portion of that statement is
extracted below :
"I have decided, which has been agreed to by the Hon. Leaders,
that all the concerned Members will be asked to submit their
individual statements/explanations regarding the allegations
made against them today on the TV Channel Aaj Tak before
10.30 a.m. on 14th December, 2005. The
statements/explanations given by those members will be placed
before the Enquiry Committee consisting of the following Hon.
Members -
1. Shri Pawan Kumar Bansal (Chairman)
2. Prof. Vijay Kumar Malhotra
3. Md. Salim
4. Prof. Ram Gopal Yadav
5. Thiru C. Kuppusami
The Committee is requested to give its Report by 4 p.m. on 21st
December, 2005. The Committee is authorized to follow its
own procedure. The Report will be presented before the House
for its consideration.
4. The Lok Sabha Secretariat sent communications dated 12.12.2005 to
the ten members calling for their comments in regard to the improper
conduct shown in the video footage. They were also instructed not to attend
the sitting of the House till the matter was finally decided. The members
submitted their responses and denied any wrong doing on their part. The
Speaker secured VCDs containing the video footage showing 'improper
conduct' from the News Channel. The ten members were supplied copies
thereof. The Enquiry Committee examined on oath Shri Aniruddha Bahl,
Ms. Suhasini Raj and Shri Kumar Badal of the Portal "Cobrapost.Com" who
had carried the sting operation. The Committee viewed all the VCDs
containing the relevant video footage as also the unedited raw video footage
and perused the transcripts. The ten members alleged that the video tapes
were morphed/manipulated, but, however, refused to view the video
clippings in the presence of the Committee and point out the portions which
according to them were morphed/manipulated. They were not given any
opportunity to cross-examine the sting operators, nor granted copies of the
entire unedited video footage and other documents requested by them.
5. After considering the said material, the committee submitted its report
dated 22.12.2005 to the Speaker. It was tabled in the House on the same day.
The said report contained the following findings :
a) The representatives of the Portal "Cobrapost.com"
namely Shri Aniruddha Bahal, Ms. Suhasini Rajand and
Shri Kumar Badal approached the members posing as
representatives of the fictitious company, through a
number of middlemen, some of whom were working as
Private Secretaries/Personal Assistants of the members
concerned. They requested the members to raise
questions in Lok Sabha and offered them money as
consideration. Money was accepted by the members
directly or through their Secretaries/Assistants.
Acceptance of money by the ten members was thus
established.
b) The plea put forth by the ten members that the video
footages were morphed/manipulated has no merit. Their
conduct was unbecoming of members of Parliament,
unethical and called for strict action.
c) Stern action also needs to be taken against the
middlemen, touts and persons masquerading as Private
Secretaries of members since they are primarily
responsible for inducting members of Parliament into
such activities.
The Committee was of the view that in the case of misconduct by the
members or contempt of the House by the members, the House can impose
any of the following punishments : (i) admonition; (ii) reprimand; (iii)
withdrawal from the House; (iv) suspension from the House; (v)
imprisonment; and (vi) expulsion from the House. The Committee
concluded that continuance of the ten persons as members of Lok Sabha was
untenable and recommended their expulsion.
On 23.12.2005, the Leader of the House moved the following Motion in the
House :
"That this House having taken note of the Report of the
Committee to inquire into the allegations of improper conduct
on the part of some members, constituted on 12th December,
2005, accepts the finding of the Committee that the conduct of
the ten members of Lok Sabha namely, Shri Narendra Kumar
Kushawaha, Shri Annasaheb M. K. Patil, Shri Manoj Kumar,
Shri Y. G. Mahajan, Shri Pradeep Gandhi, Shri Suresh Chandel,
Shri Ramsevak Singh, Shri Lal Chandra Kol, Shri Rajaram Pal
and Shri Chandra Pratap Singh was unethical and unbecoming
of members of Parliament and their continuance as members of
Lok Sabha is untenable and resolves that they may be expelled
from the membership of Lok Sabha."
An amendment to the Motion for referring the matter to the Privileges
Committee, moved by a member (Prof. Vijay Kumar Malhotra), was
rejected. After a debate, the Motion was adopted by voice vote. As a
consequence on the same day, a notification by the Lok Sabha Secretariat
was issued notifying that 'consequent on the adoption of a Motion by the
Lok Sabha on the 23rd December, 2005 expelling the ten members from the
membership of the Lok Sabha', the ten members ceased to be members of
the Lok Sabha, with effect from the 23rd December, 2005 (afternoon).'
7. Similar are the facts relating to Dr. Chhattrapal Singh Lodha, Member
of Rajya Sabha. On 12.12.2005, the Chairman of the Rajya Sabha made a
statement in the House that the dignity and prestige of the House had
suffered a blow by the incidents shown on the TV Channel, that it was
necessary to take action to maintain and protect the integrity and credibility
of the House, and that he was referring the episode to the Ethics Committee
for its report. On the same day, Ethics Committee held a meeting and took
the view that the member had prima facie contravened Part V of the Code of
Conduct which provided :
"Members should never expect or accept any fee, remuneration or benefit
for a vote given or not given by them on the floor of the House, for
introducing a Bill, for moving a resolution or desisting from moving a
resolution, putting a question or abstaining from asking a question or
participating in the deliberations of the house or a Parliamentary
Committee."
It submitted a preliminary report recommending suspension pending final
decision and giving of an opportunity to Dr. Lodha to explain his position.
The said report was accepted. By letter dated 13.12.2005. Dr. Lodha was
required to give his comments by 1 P.M. on 15.12.2005. Thereafter the
Committee gave a report holding that the member had contravened Part V of
the Code of Conduct and had acted in a manner which seriously impaired the
dignity of the House and brought the whole institution of Parliamentary
democracy into disrepute. The Committee recommended Dr. Lodha to be
expelled from the membership of the House. On 23.12.2005, the Chairman
of the Ethics Committee moved that its final report be accepted. After
debate, the House agreed with the recommendation in the report by voice
vote. As a consequence, the Secretary General of Rajya Sabha issued a
notification dated 23.12.2005 declaring that Dr. Lodha had ceased to be a
member of the Rajya Sabha with effect from that date.
The Issue :
8. The petitioners contend that there can be cessation of membership of
either House of Parliament only in the manner provided in Articles 101 and
102; and that cessation of membership by way of expulsion is alien to the
constitutional framework of Parliament. It is submitted that a person can be
disqualified for being a member of Parliament on the ground of corruption,
only upon conviction for such corruption as contemplated under section 8 of
Representation of People Act, 1951 read with clause (1)(e) of Article 102. It
is submitted that there can be no additions to grounds for cessation of
membership under Articles 101 and 102, unless it is by a law made by
Parliament as contemplated under Article 102(1)(e), or by an amendment to
the Constitution itself. It is further submitted that reading the power of
expulsion, as a part of parliamentary privilege under Article 105(3) is
impermissible. It is, therefore, submitted that Parliament has no power of
expulsion (permanent cessation of membership). On the other hand, the
Union of India and the Attorney General assert that Parliament has such
power. The assertion is based on two premises. First is that Article 101
relating to vacancies is not exhaustive. The Second is that the power of
Parliament to expel a member is a part of the powers, privileges and
immunities conferred on the Parliament, under Article 105(3), and it is
distinct and different from 'disqualifications' contemplated under Article
102.
9. When the incident occurred, the response of the Hon. Speaker and the
Parliament, in taking prompt remedial action, against those who were seen
as betraying the confidence reposed by the electors, showed their concern to
maintain probity in public life and to cleanse Parliament of elements who
may bring the great institution to disrepute. But, howsoever bonafide or
commendable the action is, when it is challenged as being unconstitutional,
this Court as the interpreter and Guardian of the Constitution has the delicate
task, nay the duty, to pronounce upon validity of the action. There is no
question of declining to or abstaining from inquiring into the issue merely
because the action is sought to be brought under the umbrella of
parliamentary privilege. The extent of parliamentary power and privilege,
and whether the action challenged is in exercise of such power and privilege,
are also matters which fall for determination of this Court. In this context, I
may usefully refer to the words of Bhagwati, J. (as His Lordship then was)
in State of Rajasthan v. Union of India [AIR 1977 SC 1361]:
"But merely because a question has a political complexion, that by
itself is no ground why the Court should shrink from performing
its duty under the Constitution if it raises an issue of constitutional
determination. , the Court cannot fold its hands in despair and
declare "Judicial hands off." So long as a question arises whether
an authority under the constitution has acted within the limits
of its power or exceeded it, it can certainly be decided by the
Court. Indeed it would be its constitutional obligation to do so.
This Court is the ultimate interpreter of the Constitution and to
this Court is assigned the delicate task of determining what is the
power conferred on each branch of Government, whether it is
limited, and if so, what are the limits and whether any action of
that branch transgresses such limits. It is for this Court to uphold
the constitutional values and to enforce the constitutional
limitations. That is the essence of the rule of law."
Where there is manifestly unauthorized exercise of power
under the Constitution, it is the duty of the Court to intervene.
Let it not be forgotten, that to this Court as much as to other
branches of Government, is committed the conservation and
furtherance of democratic values. The Court's task is to identify
those values in the constitutional plan and to work them into life in
the cases that reach the Court.. The Court cannot and should not
shirk this responsibility"
[emphasis supplied]
10.The question before us is not whether the petitioners are guilty of
having taken money for asking questions, or raising issues in the Parliament.
The question is, irrespective of whether they are guilty or not, Parliament
has the power to expel them, thereby effecting permanent cessation of their
membership. On the contentions raised, the questions that therefore arise for
consideration are :
(i)Whether Article 101 and 102 are exhaustive in regard to the
modes of cessation of membership of Parliament; and whether
expulsion by the House, not having been specified as a mode of
cessation of membership, is impermissible.
(ii)If the answer to the above question is in the negative, whether
the Parliament has the power to expel its members (resulting in
permanent cessation of membership) as a part of its powers,
privileges and immunities under Article 105(3).
Relevant Principles :
11.I may first refer to the basic principles relevant for the purpose of
constitutional interpretation in the context of the first question.
I. Unlike British Parliament, Indian Parliament is not sovereign. It
is the Constitution which is supreme and sovereign and
Parliament will have to act within the limitations imposed by the
Constitution :
12.There is a marked distinction between British Parliament and the
Indian Parliament. British Parliament is sovereign. One of the hallmarks of
such sovereignty is the right to make or unmake any law which no court or
body or person can set aside or override. On the other hand, the Indian
Parliament is a creature of the Constitution and its powers, privileges and
obligations are specified and limited by the Constitution. A legislature
created by a written Constitution must act within the ambit of its power as
defined by the Constitution and subject to the limitations prescribed by the
Constitution. Any act or action of the Parliament contrary to the
constitutional limitations will be void.
13.In re Art. 143, Constitution of India and Delhi Laws Act [AIR 1951
SC 332], this Court observed thus :
"There is a basic difference between the Indian and the British
Parliament in this respect. There is no constitutional limitation to
restrain the British Parliament from assigning its powers where it
will, but the Indian Parliament qua legislative body is fettered
by a written constitution and it does not possess the sovereign
powers of the British Parliament. The limits of the powers of
delegation in India would therefore have to be ascertained as a
matter of construction from the provisions of the Constitution
itself."
[emphasis supplied]
In Special Reference No.1 of 1964 UP Assembly Case [1965 (1) SCR 413],
a Bench of seven Judges observed thus :
"In England, Parliament is sovereign; and in the words of Dicey,
the three distinguishing features of the principle of Parliamentary
Sovereignty are that Parliament has the right to make or unmake
any law whatever; that no person or body is recognized by the law
of England is having a right to override or set aside the legislation
of Parliament; and that the right or power of Parliament extends to
every part of the Queen's dominion. On the other hand, the
essential characteristic of federalism is "the distribution of limited
executive, legislative and judicial authority among bodies which
are co-ordinate with and independent of each others". The
supremacy of the constitution is fundamental to the existence
of a federal State in order to prevent either the legislature of the
federal unit or those of the member States from destroying or
impairing that delicate balance of power which satisfies the
particular requirements of States which are desirous of union, but
not prepared to merge their individuality in a unity. This
supremacy of the constitution is protected by the authority of
an independent judicial body to act as the interpreter of a
scheme of distribution of powers."
"Therefore, it is necessary to remember that though our
Legislatures have plenary powers, they function within the limits
prescribed by the material and relevant provisions of the
Constitution. In a democratic country governed by a written
Constitution, it is the Constitution which is supreme and sovereign.
. Therefore, there can be no doubt that the sovereignty which
can be claimed by the Parliament in England, cannot be claimed by
any Legislature in India in the literal absolute sense. We feel no
difficulty in holding that the decision about the construction of
Article 194(3) must ultimately rest exclusively with the Judicature
of this country. "
"Article 212(1) seems to make it possible for a citizen to call in
question in the appropriate court of law the validity of any
proceedings inside the legislative chamber if his case is that the
said proceedings suffer not from mere irregularity of procedure,
but from an illegality. If the impugned procedure is illegal and
unconstitutional, it would be open to be scrutinized in a court of
law, though such scrutiny is prohibited if the complaint against the
procedure is no more than this that the procedure was irregular."
[emphasis supplied]
In Kesavananda Bharati vs. State of Kerala [1973(4) SCC 225], it was
observes that the Constitution being supreme, all the organs owe their
existence to it. Each organ has to function within the four corners of the
constitutional provisions. The doctrine of parliamentary sovereignty as it
obtains in England does not prevail in India except to the extent provided by
the Constitution. The judiciary is entrusted the task of construing the
provisions of the Constitution and safeguarding the fundamental rights.
Subsequently, in State of Rajasthan (supra), this Court reiterated :
"It is necessary to assert in the clearest terms, particularly in the
context of recent history, that the Constitution is supreme lex,
the paramount law of the land, and there is no department or
branch of Government above or beyond it. Every organ of
Government, be it the executive or the legislature or the
judiciary, derives its authority from the Constitution and it has
to act within the limits of its authority."
[emphasis supplied]
In Sub-Committee on Judicial Accountability vs. Union of India [1991 (4)
SCC 699], a Constitution Bench of this Court held :
"But where, as in this country and unlike in England, there is a
written Constitution which constitutes the fundamental and in that
sense a "higher law" and acts as a limitation upon the legislature
and other organs of the State as grantees under the constitution, the
usual incidents of parliamentary sovereignty do not obtain and the
concept is one of 'limited government'. Judicial Review is, indeed,
an incident of and flows from this concept of the fundamental and
the higher law being the touchstone of the limits of the powers of
the various organs of the State which derive power and authority
under the Constitution and that the judicial wing is the interpreter
of the Constitution and, therefore, of the limits of authority of the
different organs of the State. It is to be noted that the British
Parliament with the Crown is supreme and its powers are unlimited
and courts have no power of judicial review of legislation."
"In a federal set up, the judiciary becomes the guardian of the
Constitution The interpretation of the Constitution as a legal
instrument and its obligation is the function of the Courts."
II.When a Statute, having made specific provisions for certain
matters, also incorporates by reference an earlier statute, to avoid
reproduction of the matters provided for in the earlier statute,
then what is deemed to be incorporated by such reference, are
only those provisions of the earlier statute which relate to matters
not expressly provided in the latter statute, and which are
compatible with the express provisions of the latter statute.
14.The legislative device of incorporation by reference is a well-known
device where the legislature, instead of repeating the provisions of a
particular statute in another statute, incorporates such provisions in the latter
statute by reference to the earlier statute. It is a legislative device adopted for
the sake of convenience in order to avoid verbatim reproduction of the
provisions of the earlier statute into the later. [See Mary Roy v. State of
Kerala 1986 (2) SCC 209]. Lord Esher M. R. stated the effect of
incorporation in Clarke vs. Bradlaugh [1881 (8) QBD 63] thus :-
"If a subsequent Act brings into itself by reference some of the clauses of
a former Act, the legal effect of that, as has often been held, is to write
those sections into the new Act as if they had been actually written in it
with the pen, or printed on it."
15.In U.P. Assembly case (supra), this Court while considering Article
194(3), identical in content to Article 105(3) of the Constitution, referred to
referred to its scope thus :
"Mr. Seervai's argument is that the latter part of Art. 194(3)
expressly provides that all the powers which vested in the House of
Commons at the relevant time, vest in the House. This broad claim,
however, cannot be accepted in its entirety, because there are some
powers which cannot obviously be claimed by the House. Take the
privilege of freedom of access which is exercised by the House of
Commons as a body and through its Speaker "to have at all times
the right to petition, counsel, or remonstrate with their Sovereign
through their chosen representative and have a favourable
construction placed on his words was justly regarded by the
Commons as fundamental privilege." It is hardly necessary to point
out that the House cannot claim this privilege. Similarly, the
privilege to pass acts of attainder and the privilege of impeachment
cannot be claimed by the House. The House of Commons also
claims the privilege in regard to its own Constitution. This
privilege is expressed in three ways, first by the order of new writs
to fill vacancies that arise in the Commons in the course of a
Parliament; secondly, by the trial of controverted elections; and
thirdly, by determining the qualification of its members in cases of
doubt. This privilege again, admittedly, cannot be claimed by the
House. Therefore, it would not be correct to say that all power and
privileges which were possessed by the House of Commons at the
relevant time can be claimed by the House."
16.In Chhabildas Mehta v. The Legislative Assembly, Gujarat State
[1970 Guj.LR 729], a Division Bench of Gujarat High Court speaking
through Chief Justice Bhagwati (as he then was) held :
"The problem before us is whether the privilege can be read in
Article 194(3). It is no answer to this problem to say 'read the
privilege in Article 194(3) and then harmonise it with the other
provisions'. If the privilege is inconsistent with the scheme of
the Constitution and its material provisions, it cannot and
should not be read in Article 194(3). The presumed intention of
the Constitution-makers in such a case would be that such a
privilege should not belong to the House of the Legislature."
[Emphasis supplied]
17.In Hardwari Lal v. The Election Commission of India [1977 (2) Punj.
& Har. 269], the validity of expulsion of a member of legislature came up
for consideration. After an elaborate discussion, the majority found that the
power of British House of Commons, to expel any of its members, flowed
from its privilege to provide for and regulate its own constitution. It was
held that such power of expulsion was not available to the Indian Parliament,
having regard to the fact that the written constitution makes detailed
provision for the constitution of the Parliament, elections, vacation of seats
and disqualifications for membership. Sandhawalia, J. (as he then was)
speaking for the majority of the Full Bench observed thus :
"It was submitted that in view of the language of Article 194(3)
each and every parliamentary privilege enjoyed by the House of
Commons without any exception whatsoever must be deemed as if
it were in fact written with pen and ink into the Constitution itself.
According to the respondents, one must at the outset unreservedly
read every power, privilege and immunity of the House of
Commons within clause (3) and consequently exercisable by the
State Legislatures in India as well. However, having done that, one
should thereafter proceed to scrutinize the remaining provisions of
the Constitution and if some power, privilege or immunity directly
conflicts with or contravenes some express or special provision
thereof then the same may be eroded on the ground that it is not
possible for the House to exercise the same. Nevertheless it was
dogmatically stated that even in the case of a direct or
irreconciliable conflict, the privilege must be read into the
Constitution and should not be deemed as necessarily deleted or
excluded therefrom. In short, the learned Advocate-General for a
while canvassed for the acceptance of what may be conveniently
called as 'pen and ink theory' for the construction of Article 194(3)
of the Constitution.
(237)On the other hand, the petitioner forthrightly argued that
some of the parliamentary privileges of the House of Commons by
their very nature are so inherently alien to our Republican
Constitution that they can never possibly be deemed to be part
thereof. It was submitted that the only reasonable and
consistent canon of construction in this situation was that all the
parliamentary privileges of the House of Commons which in their
very essence and by their intrinsic nature were patently
contradictory to the Indian Constitution, then these must
necessarily be excluded therefrom at the very threshold.
(238)I believe, that the fallacy of the argument on behalf of the
respondent is highlighted, the moment one particularizes the same
and refers to some of the well-known and admitted privileges of
the House of Commons. It was conceded before us that not one but
innumerable parliamentary powers and privileges of the House of
Commons were inextricably linked with the Sovereign, that is,
King or Queen of England, as the case may be. Can one imagine
that the word 'King' or 'Queen' mentioned therein should be
deemed to have been written in pen and ink in our Constitution
also when its very preamble solemnly declares that the people of
India have constituted themselves into a Sovereign, Socialist
Secular Democratic Republic ? In particular, one may consider the
accepted parliamentary privilege of the freedom of access to the
Sovereign including a right at all times to petition, counsel or
remonstrate with the King through their chosen representatives.
This is admitted on all hands to be a parliamentary privilege which
was considered fundamental by the House of Commons and
undoubtedly enjoyed by it. Can one for a moment conceive that the
Republican Constitution of India would incorporate this privilege
for its State Legislatures. How can even one imagine that the
founding fathers in the Constituent Assembly had intended to write
such a privilege also into our Constitution and to deem it as part
and parcel thereof? If so, to whom were the State Legislatures
supposed to petition and with whom were they to counsel or
remonstrate with through their chosen representatives in the
obvious absence of even the institution of the Monarchy herein ?
(239)Similarly not one but there are tens of parliamentary
privileges of the House of Commons which are closely linked with
the hereditary House of Lords in England. In particular the power
of the House of Lords to punish the contemners of the House by
passing judgment as a Court was undoubted. Can one read or even
imagine a House of Lords within our polity when the very
Constitution itself disapproves even a reference to any titles on the
basis of heredity and blood alone? Other examples of this nature
could perhaps be multiplied ad infinitum but it would perhaps
suffice to mention two other undoubted privileges of the House of
Commons. It is not in dispute that the said House had a relatively
unrestricted power of impeachment whereby it acted as the
prosecutor whilst the House of Lords was the final Court or
adjudicator for the same. Would it be possible to assume within
our Constitution any such general parliamentary privilege of
impeachment (apart from those which the Constitution in terms
confers) or by analogy to place the Rajya Sabha in the peculiar
historical position which the House of Lords as the final Court in
England? Again closely inter-related to this general power of
impeachment in the House of Commons was the privilege to pass
Acts or Attainder which in terms and effect meant an unrestricted
right to pass judgment during the course of impeachment. Can one
for a moment read such a power or privilege in favour of the State
Legislatures in India?
(240)I am of the view that it is essentially tautologous to first
read something into the Constitution and in the next breath to
proceed to erase the same. This exercise becomes inevitable, if, as
suggested on behalf of the respondents, one is to first read the
King, the Queen, the House of Lords or the Acts of Attainder into
the Constitution and thereafter to proceed to nullify them on the
plain ground that by the very nature of things they cannot form part
of a Republican Constitution. The pen and ink theory, therefore, in
effect becomes indeed a pen, ink and India Rubber theory whereby
one first writes something entirely alien to the Constitution within
it and the next moment proceeds to rub it off. It is well-settled
that when a statute includes something in it by a reference to
another provision then only that can be deemed to be included
which is compatible with the parent provision. To my mind,
therefore, the plain method of construing Article 194(3) is the
usual and the settled one of not reading something into it which
is glaringly anomalous, unworkable and irrational."
[emphasis supplied]
III. Decisions of foreign courts, though useful to understand the
different constitutional philosophies and trends in law, as also
common law principles underlying Indian Statutes, are of limited
or no assistance in interpreting the special provisions of Indian
Constitution, dissimilar to the provisions of foreign constitutions.
19.Constitution of India differs significantly from Constitutions of
other countries. It was made in the background of historical, social and
economic problems of this country. Our Constitution-makers forged
solutions and incorporated them. They made exhaustive provisions relating
to Executive, Legislature, and Judiciary with checks and balances. While
making specific and detailed provisions regarding Parliament, the
Constitution also earmarked the areas where further provisions could be
made by the Parliament by law. On the other hand, the Constitution of
England is unwritten and flexible. The distribution and regulation of exercise
of governmental power has not been reduced to writing. Further British
Parliament was, at one time, also the highest court of justice and because of
it, regarded as a superior court of record, with all its attendant trappings.
United States has a short and rigid Constitution, expounded considerably by
courts. Indian Constitution is exhaustive and sufficiently expounded by the
Constitution makers themselves. In fact, with 395 Articles and 12 Schedules,
it is the longest among world's Constitutions.
20.In Re. the C.P. and Berar Sales of Motor Spirit & Lubricants Taxation
Act, 1938 -- the Central Provinces case [AIR 1939 FC 1], the Federal Court
observed thus :
"for in the last analysis the decision must depend upon the words
of the Constitution which the Court is interpreting and since no
two Constitutions are in identical terms, it is extremely unsafe to
assume that a decision on one of them can be applied without
qualification to another. This may be so even where the words or
expressions used are the same in both cases, for a word or phrase
may take a colour from its context and bear different senses
accordingly."
In M.P.V. Sundaramier & Co. v. State of Andhra Pradesh (AIR 1958 SC
468), this Court cautioned :
"the threads of our Constitution were no doubt taken from other
Federal Constitutions but when they were woven into the fabric of
our Constitution their reach and their complexion underwent
changes. Therefore, valuable as the American decisions are as
showing how the question is dealt with in sister Federal
Constitution great care should be taken in applying them in the
interpretation of our Constitution."
The note of caution was reiterated in Atiabari Tea Co. Ltd. v. State of Assam
(AIR 1961 SC 232) and Automobile Transport Ltd. v. State of Rajasthan
(AIR 1962 SC 1406), U.P.Assembly case (supra), and several other
subsequent decisions.
Provisions of Indian Constitution :
21.Chapters I, II and IV of Part V relate to Executive, Parliament and
Union Judiciary. Detailed reference is necessary to the provisions of Chapter
II dealing with Parliament.
21.1)Article 79 relates to Constitution of Parliament and provides that there
shall be a Parliament for the Union which shall consist of the President and
two Houses to be known respectively as the Council of States and the House
of the People. Article 80 provides that the composition of Council of States
shall be made up of twelve members nominated by the President and not
more than 238 representatives of the States and Union Territories. It also
provides that the representatives of each State in the Council of States shall
be elected by the elected members of the Legislative Assembly of the State.
Article 81 relates to composition of Lok Sabha and provides that Lok Sabha
shall consist of not more than 530 members chosen by direct election from
territorial constituencies in the States and not more than 20 members to
represent the Union Territories, chosen in such manner as Parliament may
by law provide. Article 83 prescribes the duration of Houses of Parliament.
Relevant portions thereof are extracted below :
"83. Duration of Houses of Parliament.- (1) The Council of States shall
not be subject to dissolution, but as nearly as possible one-third of the
members thereof shall retire as soon as may be on the expiration of every
second year in accordance with the provisions made in that behalf by
Parliament by law.
(2) The House of the People, unless sooner dissolved, shall continue for
[five years] from the date appointed for its first meeting and no longer and
the expiration of the said period of [five years] shall operate as a
dissolution of the House. :
Article 85 provides for the sessions of Parliament, prorogation of the Houses
and dissolution of the House of the people.
21.2)Article 84 enumerates the qualifications for membership of
Parliament. Article 102 deals with disqualifications for membership. Clause
(1) of Article 102 provides that a person shall be disqualified for being
chosen as, and for being, a member of either House of Parliament :
a) if he holds any office of profit under the Government of India or
the Government of any State, other than an office declared by
Parliament by law not to disqualify its holder;
b) if he is of unsound mind and stands so declared by a competent
court;
c) if he is an undischarged insolvent;
d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgement of
allegiance or adherence to a foreign State;
e) if he is so disqualified by or under any law made by Parliament.
Clause (2) of Article 102 provides that a person shall be disqualified for
being a member of either House of Parliament, if he is so disqualified under
the Tenth Schedule.
21.3)Article 101 deals with vacation of seats. Clause (1) thereof bars a
person being a member of both Houses of Parliament, and requires the
Parliament to make a provision by law for the vacation by a person who is
chosen as member of both Houses, of his seat in one House or the other.
Clause (2) bars a person from being a member both of Parliament and of a
House of the Legislature of a State. It provides that if a person is chosen as a
member both of Parliament and of a House of the Legislature of a State, then
at the expiry of such period as may be specified in the rules made by the
President, that person's seat in Parliament shall become vacant unless he
has previously resigned his seat in the Legislature of the State. Clause (3),
which is relevant, reads thus :
(3) If a member of either House of Parliament
a) becomes subject to any of the disqualifications mentioned in clause (1) or clause
(2) of Article 102; or
b) resigns his seat by writing under his hand addressed to the Chairman or Speaker,
as the case may be, and his resignation is accepted by the Chairman or the
Speaker, as the case may be,
his seat shall thereupon become vacant.
Clause (4) provides that if for a period of 60 days, a member of either House
of Parliament is without permission of the House absent from all meetings
thereof, the House may declare his seat vacant.
21.4)Article 103 relates to decision on questions as to disqualifications of
members. It is extracted below :
"103. Decision on questions as to disqualifications of members :
(1) If any question arises as to whether a member of either House of
Parliament has become subject to any of the disqualifications mentioned in
clause (1) of article 102, the question shall be referred for the decision of
the President and his decision shall be final.
(2) Before giving any decision on any such question, the President shall
obtain the opinion of the Election Commission and shall act according to
such opinion.
Corresponding provisions in regard to the State Legislatures are found in
Articles 168, 170, 171, 172, 174, 173, 191, 190 and 192 of the Constitution.
21.5)It is to be noted expulsion is not mentioned as a mode of cessation of
membership of the Parliament under the Constitution. Nor does it give rise
to a vacancy.
21.6)Article 105 deals with powers, privileges, etc., of the Houses of
Parliament and of the members and committees thereof. Clauses (1) to (3)
which are relevant, extracted below :
"105. Powers, privileges, etc., of the Houses of Parliament and of the
members and committees thereof.- (1) Subject to the provisions of this
Constitution and to the rules and standing orders regulating the procedure
of Parliament, there shall be freedom of speech in Parliament.
(2)No member of Parliament shall be liable to any proceedings in any
court in respect of anything said or any vote given by him in Parliament or
any committee thereof, and no person shall be so liable in respect of the
publication by or under the authority of either House of Parliament of any
report, paper, votes or proceedings.
(3)In other respects, the powers, privileges and immunities of each
House of Parliament, and of the members and the committees of each
House, shall be such as may from time to time be defined by Parliament
by law, and, until so defined, shall be those of that House and of its
members and committees immediately before the coming into force of
section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.
The corresponding provision in regard to State Legislatures and its members,
is Article 194. The words "shall be those of the House and of its members
and Committees immediately before coming into force of section 15 of
Constitution (Forty Forth Amendment) Act, 1978" in clause (3) of Articles
105 and 194 have replaced the earlier words "shall be those of the House of
Commons of Parliament of the United Kingdom, and of its members and
Committees, at the commencement of the Constitution". The position even
after amendment is the same as the position that existed at the
commencement of the Constitution.
21.7)The other provisions of Chapter II, relating to Parliament also require
to be noticed. Article 106 relates to salaries and allowances of members.
Articles 86 to 88 relate to the rights of the President, Ministers and Attorney
General to address the Houses. Articles 89 to 98 relate to the officers of
Parliament. Article 99 provides for oath of office and Article 100 provides
for voting in Houses. Articles 107 to 111 relate to legislative procedure.
Article 107 contains the provisions as to introduction and passing of Bills.
Article 108 relates to joint sitting of both Houses in certain cases. Article
109 relates to special procedure in respect of Money Bills. Article 110
defines "Money Bills". Article 111 requires the presentation of Bills passed
by the Houses of Parliament to the President for his assent. Articles 112 to
117 relate to the procedure in financial matters. Article 112 relates to annual
financial statement. Article 113 relates to the procedure with respect to
estimates. Article 114 relates to appropriation bills. Article 115 relates to
supplementary, additional or excess grants. Article 116 relates to votes on
account, votes of credit and exceptional grants. Article 117 contains special
provisions as to financial bills. Articles 118 to 122 govern the rules of
procedure generally to be adopted by the Houses of Parliament. Article 118
enables each House of Parliament to make rules for regulating, subject to the
provisions of the Constitution, its procedure and the conduct of its business.
Article 119 relates to regulation by law of procedure in Parliament in
relation to financial business. Article 120 relates to the language to be used
in Parliament. Article 121 places a restriction on discussion in Parliament (in
regard to the conduct of any Judge of the Supreme Court or of a High Court
in the discharge of his duties except upon a motion for presenting an address
to the President praying for the removal of the Judge). Article 122 bars
courts from inquiring into proceedings of Parliament and it is extracted
below :
"122. Courts not to inquire into proceedings of Parliament.(1) The
validity of any proceedings in Parliament shall not be called in question on
the ground of any alleged irregularity of procedure.
(2) No officer or member of Parliament in whom powers are vested by or
under this Constitution for regulating procedure or the conduct of
business, or for maintaining order, in Parliament shall be subject to the
jurisdiction of any court in respect of the exercise by him of those
powers."
22.We have referred in detail to the various provisions to demonstrate
that as far as the Indian Constitution is concerned, Chapter II of Part V is a
complete Code in regard to all matters relating to Parliament. It provided for
every conceivable aspect of Parliament. It contains detailed provisions in
regard to the constitution of Parliament, composition of Parliament, sessions,
prorogation and dissolution of Parliament, Officers of Parliament, duration
of the Houses of Parliament, qualifications for membership, disqualifications
for being chosen as, and for being members, vacancies of seats, decision on
questions of disqualification, powers, privileges and immunities of the
Parliament, its Members and Committees, manner of conducting business,
the procedure to be adopted by the Parliament in regard to the enactment of
laws, persons who can address the Parliament, the language to be used, and
the Officers of the Parliament. The entire field in regard to the legislature is
covered fully in the following manner :
Subject
(Parliament)
Articles
(State
Legislature)
Articles
Constitution & Composition of
Houses and election/nomination
of members
79 to 82
168 to 171
Duration of Houses and Tenure
of Office of Members
83
172
Sessions, Prorogation and
dissolution
85
174
Qualification for Membership
84
173
Cessation of membership
(Disqualifications for being
chosen as, and for being a
member, and vacancies) and
decision on questions of
disqualification
102, 101 & 103
192, 190 & 192
Powers, privileges and immunities
of the Legislature, members and
Committees, and salaries &
allowances
105, 122 & 106
194, 212 & 195
Restriction on Powers
121
211
Offices of Legislature
89 to 98
178 to 187
Rules of Procedure and Language
118, 119 & 120
208, 209 & 210
Legislative Procedure and Conduct
of Business
107 to 111
112 to 117
99 & 100
196 to 201
202 to 207
188 & 189
Persons who can address the
Parliament
86 to 88.
175 to 177
23.The Constitution also makes express provisions for cessation of tenure
of office or removal of every constitutional functionary referred to in the
Constitution. I will refer to them briefly :
(i)Article 61 refers to the procedure for impeachment of President.
Clause (4) of Article 61 provides that if the resolution is passed by
a majority of not less than two-third of the Members of the House
declaring the charge against the President has been sustained, such
resolution shall have the effect of removing the President from the
office.
(ii)Clause (b) of Article 67 deals with the term of office of Vice
President and provides for removal of Vice President from office
by a resolution of Council of States passed by majority of all the
then members of the Council and agreed to by the House of
People.
(iii)Article 75(2), Article 76(4) and Article 156(1) refer to the
Ministers, Attorney General and Governor holding office during
the pleasure of the President.
(iv)Article 124 provides that no Judge of Supreme Court shall be
removed from his office except by an order of President passed
after impeachment. Articles 148 and 324 provide that the
Comptroller & Auditor General of India and the Chief Election
Commissioner shall not be removed from their office except in like
manner and on like grounds of a Judge of the Supreme Court.
(v)Article 315 read with Article 317 provides how a Chairman or a
Member of a Public Service Commission can be removed from
office.
Similarly provisions are made in regard to cessation/termination of tenure of
office or removal of all constitutional functionaries with reference to the
States. Article 156(1) relates to Governor, Article 164(1) relates to
Ministers, Article 165(3) relates to Advocate General, Article 179 relates to
Speaker and Deputy Speaker, Article 183 relates to Chairman and Deputy
Chairman of Legislative Council, Articles 190 to 192 relate to Members of
Legislatures and Article 217 relates to High Court Judges.
Whether Articles 101 and 102 are exhaustive of the circumstances in
which there will be cessation of membership ?
24.The word 'disqualified' means to 'make ineligible' or debarred. It also
means divested or deprived of rights, powers or privileges. The term 'expel'
means to deprive a person of the membership or participation in any 'body'
or 'organization' or to forcibly eject or force a person to leave a building
premises etc. The enumeration of disqualifications is exhaustive and
specifies all grounds for debarring a person from being continuing as a
member. The British Parliament devised expulsion as a part of its power to
control its constitution, (and may be as a part of its right of self-protection
and self-preservation) to get rid of those who were unfit to continue as
members, in the absence of a written Constitutional or statutory provision
for disqualification. Historically, therefore, in England, 'expulsion' has been
used in cases where there ought to be a standing statutory disqualification
from being a Member. Where provision is made in the Constitution for
disqualifications and vacancy, there is no question of exercising any inherent
or implied or unwritten power of 'expulsion'.
25.A person cannot be disqualified unless he suffers a disqualification
enumerated in Article 102. Article 102 refers to 6 types of disqualifications :
i) If he holds any office of profit, vide Article 102(1)(a);
ii)If he is of unsound mind and stands so declared, vide Article
102(1)(b);
iii)If he is an undischarged solvent, vide Article 102(1)(c);
iv)If he is not a citizen of India, vide Article 191(1)(d);
v) If he is disqualified by or under any law made by Parliament.
vi)If he is disqualified under the Tenth Schedule, vide Article 102(2).
Disqualifications have also been prescribed by the Parliament in the
Representation of People Act, 1951 as contemplated under Article 102(1)(e).
The grounds of disqualifications under the said Act are :
(i) if he is convicted and sentenced for any offence as
provided/enumerated in Section 8 of the Act;
(ii) if he is found guilty of corrupt practices by an order
under Section 99 of the Act vide Section 8-A of the Act;
(iii) if he is dismissed for corruption or for disloyalty to
the State, vide Section 9 of the Act;
(iv) if he has a subsisting contract with the appropriate
Government for the supply of goods to or for the
execution of any works, vide Section 9-A of the Act;
(v) if he is a managing agent, manager or secretary of any
company or corporation, in which the appropriate
Government has a share, vide Section 10 of the Act;
(vi) If he is a person who has been declared as
disqualified by the Election Commission, vide Section
10-A of the Act."
The Constitution thus expressly enumerates certain grounds of
disqualification (sub-clauses (a) to (d) of clauses (1) and (2) of Article 102).
It has also permitted the Parliament to add disqualifications, by making a
law. Passing a resolution by one House, is not of course, making a law.
26.In the case of Members of Parliament, the Constitution has
consciously used the word disqualification, both for 'being chosen as a
member' and for 'being a member'. That means that when a member
becomes disqualified as mentioned in Article 102, he becomes disentitled to
continue as a Member of the House.
27 Article 101 specifically provides the circumstances in which a seat of
Member of Parliament becomes vacant
(a)when a person is member of both Houses of Parliament;
(b)when a person is elected both as a Member of Parliament and also as a
Member of the State Legislature, and does not resign his seat in the
legislature of a State within the time specified;
(c)when a person becomes subject to any of the disqualifications
mentioned in clause (1) or clause (2) of Article 102;
(d)when he resigns his seat and his resignation is accepted.
(e)when a member is absent from all meetings for a period of 60 days
without permission of the House and the House declares his seat as
vacant.
28.An analysis of Article 101 shows that the Constitution makers
provided specifically for three types of vacancies :
(i) Occurrence of vacancies, for reasons specifically stated in the
Constitution itself (vide clauses (2) and (3) of Article 101).
(ii) Occurrence of vacancies, to be provided by a law made by the
Parliament (vide clause (1) of Article 101).
(iii) Occurrence of vacancy, on a declaration by the House (vide
clause (4) of Article 101).
If the Constitution makers wanted a vacancy to occur on account of
'expulsion' on a decision or declaration by the House, they would have
certainly provided for it, as they have provided for vacancy on the ground of
unauthorized absence, arising on a declaration by the House under clause (4)
of Article 101. The Constitution makers did not contemplate or provide for
any cause, other than those mentioned in Article 101, for giving rise to a
vacancy. Thus a seat held by a Member of Parliament does not become
vacant, in any manner, other than those stated in Article 101.
29.One argument advanced to contend that Article 101 cannot be
considered as exhaustive as to the circumstances in which vacancy occurs in
respect of a seat in the Parliamentary, was that it does not provide for
vacation of seat by death of a Member. Article 101 refers to vacation of seat
by a 'person' who is a member of the House, that is, a person who is alive.
When a person is dead, obviously he is not a Member of the House. It would
be absurd to contend that a person even after death will continue to hold the
seat. The obvious effect of death did not require to be stated and therefore
the non-mention of death as a ground for vacancy does not make Article 101
any less exhaustive.
30.Articles 102 and 101 together include all circumstances in which a
membership comes to an end and the seat becomes vacant. The Constitution
does not contemplate or provide for the membership of an MP coming to an
end in any manner other than what is specifically provided in Articles 101
and 102. Therefore there cannot be cessation of membership, de hors
Articles 101 and 102, by 'expulsion' or otherwise.
Conclusions :
31.The Constitution-makers have made detailed and specific provisions
regarding the manner in which a person becomes a Member of Parliament
(elected/nominated), the duration for which he continues as a member and
the manner in which he ceases to be a member and his seat becomes vacant.
Therefore neither the question of election or nomination, nor tenure, nor
cessation/termination of membership of the House covered by the express
provisions in the Constitution, can fall under 'other powers, privileges and
immunities' of the House mentioned in Article 105(3).
32.We have also noticed above that the Constitution makes express
provisions for election/appointment and removal/cessation of service of the
Executive (President and Vice-President), Judiciary (Judges of the Supreme
Court and High Court) and all other constitutional functionaries (Attorney
General, Auditor and Comptroller General, Chief Election Commissioner
etc.). It is therefore inconceivable that the Constitution-makers would have
omitted to provide for 'expulsion' as one of the methods of cessation of
membership or consequential vacancy, if it intended to entrust such power to
the Parliament.
33.In view of the express provisions in the Constitution, as to when a
person gets disqualified to be a member of either House of Parliament (and
thereby ceases to be a member) and when a consequential vacancy arises, it
is impermissible to read a new category of cessation of membership by way
of expulsion and consequential vacancy, by resorting to the incidental
powers, privileges and immunities referred to in Article 105.
34.Clause (3) of Article 105 opens with the words 'in other respects'.
The provision for 'powers, privileges and immunities' in clause (3) occurs
after referring to the main privilege of freedom of speech in Parliament, in
clause (1) of Article 105, and the main immunity against court proceedings
in clause (2) of Article 105. Therefore, clause (3) is intended to provide for
'non-main' or 'incidental' or miscellaneous powers, privileges and
immunities which are numerous to mention. Two things are clear from
clause (3). It is not intended to provide for the matters relating to
nomination/election, term of office, qualifications, disqualification/cessation,
for which express provisions are already made in Articles 80, 81, 83, 84, 101
and 102. Nor is it intended to provide for important privilege of freedom of
speech or important immunity from court proceedings referred to in Clause
(1) and (2) of Article 105. This Court in U.P. Assembly referred to this
aspect :
"There can be little doubt that the powers, privileges and
immunities which are contemplated by clause (3) are incidental
powers, privileges and immunities which every Legislature must
possess in order that it may be able to function effectively, and that
explains the purpose of the latter part of clause (3)."
[emphasis supplied]
By no stretch of imagination, the power to expel a member can be
considered as an 'incidental' matter. If such a power was to be given, it
would have been specifically mentioned.
35.The appropriate course in case of allegation of corruption against a
Member of Parliament, is to prosecute the member in accordance with law
(The immunity under Article 105(2) may not be available, as the decision in
P.V.Narasimha Rao v. State [1998 (4) SCC 626] recognizes immunity to a
member who is a bribe taker only where the 'bribe' is taken in respect of a
'vote' given by him in Parliament and not otherwise). Such cases can be fast
tracked. Pending such criminal proceedings, the member can be suspended
temporarily, if necessary, so as to prevent him from participating in the
deliberations of the Houses. On being tried, if the member is convicted, he
becomes disqualified for being or continuing as a Member under Article
102(1)(e). If he is acquitted, he is entitled to continue as a member. Though
it may sound cumbersome, that apparently is what the Constitution intends.
36.I am, therefore, of the considered view that there is no power of
expulsion in the Parliament, either inherent or traceable to Article 105(3).
Expulsion by the House will be possible only if Article 102 or Article 101 is
suitably amended or if a law is made under Article 102(1)(e) enabling the
House to expel a member found unworthy or unfit of continuing as a
member. The first question is thus answered in the affirmative. Therefore the
second question does not survive for consideration.
37.In view of the above, I hold that the action of the two Houses of
Parliament, expelling the petitioners is violative of Articles 101 to 103 of the
Constitution and therefore invalid. Petitioners, therefore, continue to be
Members of Parliament (subject to any action for cessation of their
membership). Petitions and transferred cases disposed of accordingly.
C.K. THAKKER, J.
I have had the benefit of reading the erudite
judgment prepared by my Lord the Chief Justice. I am in
agreement with the final order dismissing the petitions.
Keeping in view, however, the issue in these matters
which is indeed of great public importance having far-
reaching consequences to one of the largest democracies
of the world, I intend the consider it in detail.
In these 11 petitions (9 by members of Lok Sabha
and 2 by members of Rajya Sabha), the petitioners have
challenged the proceedings initiated against them by
Parliament, the reports submitted by the Committees
constituted by Parliament holding them guilty of the
charges levelled against them and notifications expelling
them as members of Parliament.
The 'unfortunate background' of the case has been
dealt with by the learned Chief Justice and I do not
intend to repeat it. Suffice it to say that it was alleged
against the petitioners that they accepted money for
tabling questions/raising issues in Parliament.
Committees were appointed to inquire into the
allegations and conduct of Hon'ble Members. The
allegations were found to be correct and pursuant to the
reports submitted by the Committees, the Members were
expelled by Parliament. Those Members have challenged
the impugned action of expulsion.
The Court had been ably assisted by the learned
counsel for the parties on the central question of
Parliamentary privileges, the power of the House to deal
with those privileges and the ambit and scope of judicial
review in such matters.
At the outset, I wish to make it clear that I am
considering the controversy whether Parliament has
power to expel a member and whether such power and
privilege is covered by clause (3) of Article 105 of the
Constitution. I may clarify that I may not be understood
to have expressed final opinion one way or the other on
several questions raised by the parties and dealt with in
this judgment except to the extent they relate or have
relevance to the central issue of expulsion of membership
of Parliament.
PARLIAMENTARY PRIVILEGES : MEANING
An important as also a complicated question is :
What do we understand by 'parliamentary privileges'?
"Nothing", said Dicey, "is harder to define than the
extent of the indefinite powers or rights possessed by
either House of Parliament under the head of privilege or
law and custom of Parliament".
Though all the three expressions, powers, privileges
and immunities are invariably used in almost all
Constitutions of the world, they are different in their
meanings and also in contents.
'Power' means 'the ability to do something or to act
in a particular way'. It is a right conferred upon a person
by the law to alter, by his own will directed to that end;
the rights, duties, liabilities or other legal relations either
of himself or of other persons. It is a comprehensive word
which includes procedural and substantive rights which
can be exercised by a person or an authority.
'Privilege' is a special right, advantage or benefit
conferred on a particular person. It is a peculiar
advantage or favour granted to one person as against
another to do certain acts. Inherent in the term is the
idea of something, apart and distinct from a common
right which is enjoyed by all persons and connotes some
sort of special grant by the sovereign.
'Immunity' is an exemption or freedom from general
obligation, duty, burden or penalty. Exemption from
appearance before a court of law or other authority,
freedom from prosecution, protection from punishment,
etc. are immunities granted to certain persons or office
bearers.
Sir Erskin May, in his well-known work 'Treatise on
The Law, Privileges, Proceedings and Usage of
Parliament', (23rd Edn.); p. 75 states;
"Parliamentary privilege is the sum of the
peculiar rights enjoyed by each House
collectively as a constituent part of the High
Court of Parliament, and by Members of each
House individually, without which they could
not discharge their functions, and which
exceed those possessed by other bodies or
individuals. Thus privilege, though part of the
law of the land, is to a certain extent an
exemption from the general law. Certain rights
and immunities such as freedom from arrest
or freedom of speech belong primarily to
individual Members of each House and exist
because the House cannot perform its
functions without unimpeded use of the
services of its Members. Other such rights
and immunities such as the power to punish
for contempt and the power to regulate its own
constitution belong primarily to each House as
a collective body, for the protection of its
Members and the vindication of its own
authority and dignity. Fundamentally,
however, it is only as a means to the effective
discharge of the collective functions of the
House that the individual privileges are
enjoyed by Members".
In Halsbury's Laws of England, (4th Edn.; Reissue,
Vol. 34; p. 553; para 1002); it has been stated;
"Claim to rights and privileges. The House of
Lords and the House of Commons claim for
their members, both individually and
collectively, certain rights and privileges which
are necessary to each House, without which
they could not discharge their functions, and
which exceed those possessed by other bodies
and individuals. In 1705 the House of Lords
resolved that neither House had power to
create any new privilege and when this was
communicated to the Commons, that House
agreed. Each House is the guardian of its own
privileges and claims to be the sole judge of
any matter that may arise which in any way
impinges upon them, and, if it deems it
advisable, to punish any person whom it
considers to be guilty of a breach of privilege or
a contempt of the House".
In the leading case of Powers, Privileges and
Immunities of State Legislatures, Article 143, Constitution
of India, Re, (1965) 1 SCR 413 : AIR 1965 SC 745,
Sarkar, J. (as His Lordship then was) stated; "I would like
at this stage to say a few general words about "powers,
privileges and immunities" of the House of Commons or
itsmembers. First I wish to note that it is not
necessary forour purposes to make a distinction
between "privileges", "powers" and "immunities". They are
no doubt different in the matter of their respective
contents but perhaps in no otherwise. Thus the right of
the House to have absolute control of its internal
proceedings may be considered as its privilege, its right
to punish one for contempt may be more properly
described as its power, while the right that no
member shall be liable for anything said in the House
may be really an immunity".
In 'Parliamentary Privilege First Report' (Lord
Nicholas Report), it was observed;
Parliamentary privilege consists of the
rights and immunities which the two Houses
of Parliament and their members and officers
possess to enable them to carry out their
parliamentary functions effectively. Without
this protection members would be
handicapped in performing their parliamentary
duties, and the authority of Parliament itself in
confronting the executive and as a forum for
expressing the anxieties of citizens would be
correspondingly diminished.
RAISON D'ETRE FOR PRIVILEGES
The raison d'etre for these privileges is again
succinctly explained by Sir Erskine May thus;
"The distinctive mark of a privilege is its
ancilliary character. The privileges of
Parliament are rights which are 'absolutely
necessary for the due execution of its powers'.
They are enjoyed by individual Members,
because the House cannot perform its
functions without unimpeded used of the
services of its Members; and by each House for
the protection of its Members and the
vindication of its own authority and dignity.
Elected representatives, however, are not placed
above the law by way of parliamentary privileges; they are
simply granted certain advantages and basic exemptions
from legal process in order that the House may function
independently, efficiently and fearlessly. This is in the
interest of the nation as a whole.
PARLIAMENT : WHETHER POSSESSES POWER TO
EXPEL MEMBERS
The basic and fundamental question raised by the
petitioners in all these petitions is the power of
Parliament to expel a member. Other incidental and
ancillary questions centre round the main question as to
authority of a House of Legislature of expulsion from
membership. If the sole object or paramount
consideration of granting powers, privileges and
immunities to the members of Legislature is to enable
them to ensure that they perform their functions,
exercise their rights and discharge their duties effectively,
efficiently and without interference of outside agency or
authority, it is difficult to digest that in case of abuse or
misuse of such privilege by any member, no action can
be taken by the Legislature, the parent body.
I intend to examine the question on principle as well
as on practice. It would be appropriate if I analyse the
legal aspects in the light of constitutional provisions of
India and of other countries, factual considerations and
relevant case law on the point.
AMERICAN LAW
So far as the United States of America is concerned,
the Constitution itself recognizes such right. Section 5 of
Article 1 of the Constitution of the United States confers
such right on each House of the Legislature. Sub-section
(2) reads thus;
"(2) Each House may determine the rules
of its proceedings, punish its members for
disorderly behavior, and, with the
concurrence of two-thirds, expel a
member."(emphasis supplied)
Leading Authors on the Constitution have also
stated that each House possesses the power to expel a
member in appropriate cases.
Cooley in his well-known work 'Treatise on the
Constitutional Limitations', (1972 Edn., p. 133); states;
Each House has also the power to punish
members for disorderly behaviour, and other
contempts of its authority, and also to expel a
member for any cause which seems to the body
to render it unfit that he continue to occupy one
of its seats. This power is sometimes conferred
by the constitution, but it exists whether
expressly conferred or not. It is a necessary
and incidental power, to enable the house to
perform its high functions and is necessary to
the safety of the State. It is a power of
protection. A member may be physically,
mentally, or morally wholly unfit; he may be
affected with a contagious disease, or insane,
or noisy, violent and disorderly, or in the habit
of using profane, obscene, and abusive
language. And independently of parliamentary
customs and usages, our legislative houses
have the power to protect themselves by the
punishment and expulsion of a member and
the Courts cannot inquire into the justice of
the decision, or look into the proceedings to
see whether opportunity for defence was
furnished or not."
(emphasis supplied)
Another well-known authority on the point is
Willoughby, who in his work "Constitutional Law of the
United States", (Second Edn.; p. 256); says;
"This right of expulsion is to be sharply
distinguished from the right to refuse to admit
to membership. In the latter case, as has been
seen, the questions involved are, in the main,
the perhaps exclusively, those which relate to
the Constitutional qualifications of those
persons presenting themselves for admission
or to the regularity and legality of the elections
at which such persons have been selected or
appointed. In the former case, that is, of
expulsion, these matters may be considered,
but, in addition, action may be predicated
upon the personal character or acts of the
parties concerned; and, as to his last matter,
as will presently be seen, the chief point of
controversy has been whether the acts of
which complaint is made should be only those
which have occurred subsequent to election
and have a bearing upon the dignity of
Congress and the due performance of its
functions.
In determining whether or not a member of
congress has been guilty of such acts as to
warrant his expulsion the House concerned
does not sit as a criminal trial court, and is not,
therefore, bound by the rules of evidence, and
the requirements as the certitude of guilt which
prevail in a criminal character, but only as to
unfitness for participation in the deliberations
and decisions of congress."
(emphasis supplied)
Dealing with the question of expulsion by the House
and the power of Courts, Pritchett in his book 'American
Constitution' (Third Edn., p. 146); observed;
"Expulsion and Censure : Congressmen are not
subject to impeachment, not being regarded as
'civil officers' of the United States. The
constitution does not provide, however, that
each House may expel its members by a two
third vote, or punish them for 'disorderly
behaviour'. Congress is the sole judge of the
reasons for expulsion. The offence need not be
indicatable. In 1797 the Senate expelled
William Blount for conduct which was not
performed in his official capacity not during a
session of the Senate nor at the seat of
government. The Supreme Court has recorded
in a dictum in understanding that the
expulsion power 'extends to all cases where the
offence is such as in the judgment of the Senate
is inconsistent with the trust and duty of a
member".
(emphasis supplied)
In 'American Jurisprudence', (Second Edn., Vol. 77,
p. 21); it has been stated;
"The power of either House of Congress to
punish or expel its members for cause is
recognized in the Constitution which provides
that each House may punish its members for
disorderly behaviour, and, with the
concurrence of two-thirds, expel a member.
Punishment for misbehaviour may in a proper
case be by imprisonment and may be imposed
for failure to observe a rule for preservation of
order. In the case of the Senate, the right to
expel extends to all cases where the offence is
such as in the judgment of the body is
inconsistent with the trust and duty of a
member (Chapman Re, (1896) 166 US 661 : 41
L Ed 1154)".
Attention of the Court was also invited to certain
decisions of the Supreme Court of the United States. In
Chapman, Re, 166 US 661 (1891) : 41 L Ed 2nd 1154, the
Supreme Court before more than a century, recognized
the power of the Senate to expel a member where an act
of the Member was such as in the judgment of the Senate
was inconsistent with the 'trust and duty' of a member.
Reference was made to William Blount, who was expelled
from the Senate in July, 1797, for 'a high misdemeanor
entirely inconsistent with his public trust and duty as a
senator.' It was also stated that in July, 1861, during
civil war, fourteen Senators and three Representatives
were expelled.
In Julion Bond v. James Sloppy Floyd, 385 US 116
(1966) : 17 L Ed 2nd 235, William Bond, a Negro, duly
elected representative was excluded from membership
because he attacked policy of Federal Government in
Vietnam. The US Supreme Court held that Bond had
right to express free opinion under the first amendment
and his exclusion was bad in law.
In Powell v. McCormack, 395 US 486 (1969) : 23 L
Ed 2nd 491, the applicant was held entitled to declaratory
judgment that action of exclusion of a member of a
House was unlawful. The allegation against the applicant
was that he deceived the House Authorities in connection
with travel expenses and made certain illegal payments
to his wife. Referring to Wilkes and the Law in England,
the Court observed that "unquestionably, Congress has
an interest in preserving its institutional integrity, but in
most cases that interest can be sufficiently safeguarded
by the exercise of its power to punish its members for
disorderly behaviour and in extreme cases, to expel a
member with the concurrence of two-thirds."
In H. Snowden Marshall v. Robert B. Gordon, 243 US
521 (1917), a Member of the House of Representatives
levelled serious charges against District Attorney of the
Southern District of New York with many acts of
misfeasance and nonfeasance. The Select Committee
submitted a report holding him guilty of contempt of the
House of Representatives of the United States because he
violated its privileges, its honor and its dignity.
Dealing with the case and referring to Kielley v.
Carson, (1842) 4 MOO PC 63 : 13 ER 225, the Court
observed that when an act is of such a character as to
subject it to be dealt with as a contempt under the
implied authority, Congress has jurisdiction to act on the
subject. Necessarily results from that the power to
determine in the use of legitimate and fair discretion how
far from the nature and character of the act there is
necessity for repression to prevent immediate recurrence,
that is to say, the continued existence of the interference
or obstruction to the exercise of the legislative power.
Unless there is manifest and absolute disregard of
discretion and a mere exertion of arbitrary power coming
within the reach of constitutional limitations, the exercise
of the authority is not subject to judicial interference.
I may also refer to a leading decision in United
States v. Daniel Brewster, 408 US 501 : (1972) 33 L Ed
2nd 507. Keeping in view ground reality that privileges
conferred on Members of Parliament are likely to be
abused, Burger, CJ stated;
"The authors of our Constitution were
well aware of the history of both the need for
the privilege and the abuses that could flow
from too sweeping safeguards. In order to
preserve other values, they wrote the privilege
so that it tolerates and protects behaviour on
the part of the Members not tolerated and
protected when done by other citizens, but the
shield does not extend beyond what is
necessary to preserve the integrity of the
legislative process". (emphasis supplied)
From the above cases, it is clear that in the United
States, the House possesses the power of observance of
discipline by its members and in appropriate cases, such
power extends to expulsion. It is also clear that such
power has been actually exercised for disorderly behavior
in the House as also outside the House, where the House
was satisfied that the member was 'unfit' physically,
mentally or morally even if such conduct could not be a
'statutable offence' or was not committed by him in his
official capacity or during House in Session or at the seat
of Government.
AUSTRALIAN LAW
The provisions relating Parliamentary privileges
under the Constitution of Australia were similar to our
Constitution. Section 49 declared powers, privileges and
immunities of the Senate and of the House of
Representatives and its Members. It was as follows;
"The powers, privileges, and immunities of the
Senate and of the House of Representatives,
and of the Members and the Committees of
each House, shall be such as are declared by
the Parliament, and until declared shall be
those of the Commons House of Parliament of
the United Kingdom, and of its members and
committees, at the establishment of the
Commonwealth." (emphasis supplied)
Enid Campbell in his book 'Parliamentary Privilege
in Australia', dealing with 'Expulsion', states;
"At common law, the House of Commons
is recognized to have power to expel a member
for misconduct unfitting him for membership
even where that misconduct is not such as to
disqualify him from parliamentary office. There
is no doubt that those Australian Houses of
Parliament invested by statute with the powers
and privileges of the House of Commons enjoy
the same power, but the position with regard
to other Houses is not so clear. At common
law, Colonial Legislatures do not possess
punitive powers, though there is dictum in
Barton v. Taylor to the effect that they do have
power to expel for aggravated or persistent
misconduct on the ground that this may be
necessary for the self protection of the
legislature. Where a member is expelled, his
seat thereupon becomes vacant. He is not,
however, disqualified from being again elected
and returned to parliament".
Discussing powers of Colonial Assemblies, the
learned author states that though such Assemblies do
not possess 'punitive' powers, it is inconceivable that
they cannot make rules for the orderly conduct of
business. Even if they have no authority to expel a
member in absence of specific provision to that effect,
they may suspend disorderly members in appropriate
cases.
"The dignity of a Colonial Parliament acting
within its limits, requires no less than that of the
Imperial Parliament that any tribunal to whose
examination its proceedings are sought to be
submitted for review should hesitate before it
undertakes the function of examining its
administration of the law relating to its internal
affairs". (emphasis supplied)
It may also be stated that Odger in his 'Australian
Senate Practice', (11th Edn.; p.57) observes;
"The recommendation, and the
consequent provision in section 8 of the 1987
Act, was opposed in the Senate. It was argued
that there may well be circumstances in which
it is legitimate for a House to expel a member
even if the member is not disqualified. It is not
difficult to think of possible examples. A
member newly elected may, perhaps after a
quarrel with the member's party, embark upon
highly disruptive behaviour in the House, such
that the House is forced to suspend the
member for long periods, perhaps for the bulk
of the member's term. This would mean that a
place in the House would be effectively vacate,
but the House would be powerless to fill it.
Other circumstances may readily be
postulated. The House, however, denied
themselves the protection of expulsion".
Lumb and Ryan (''The Constitution of the
Commonwealth of Australia'; 1974 Edn.) stated that each
House of the Federal Parliament has the right to suspend
a member for disorderly conduct. The power is exercised
to punish persistent interjectors or for refusal to
withdraw an offensive remark. "In extreme cases a
member may be expelled". (emphasis supplied)
In 1920, Hugh Mahon, Federal Member of Kalgoorlie
was expelled from the House of Representatives for
making a 'blistering' public speech against British Rule in
Ireland.
It is no doubt true that pursuant to the report of the
Joint Select Committee on Parliamentary Privilege (1984),
a specific Act has been enacted, known as the
Parliamentary Privileges Act, 1987 (Act 21 of 1987).
Section 8 of the said Act expressly bars a House to expel
any of its members. It reads:
"A House does not have power to expel a
member from membership of a House".
It is, therefore, clear that only recently, the power to
expel a member from the House has been taken away by
a specific statute.
CANADIAN LAW
The legal position under the Constitution of Canada
is different to some extent. Section 18 of the
Constitution of the Dominion of Canada, 1867 states;
"The privileges, immunities, and powers
to be held, enjoyed, and exercised by the
Senate and by the House of Commons, and by
the members thereof respectively, shall be
such as are from time to time defined by Act of
the Parliament of Canada, but so that any Act
of the Parliament of Canada defining such
privileges, immunities, and powers shall not
confer any privileges, immunities, or powers
exceeding those at the passing of such Act held,
enjoyed, and exercised by the Commons House
of Parliament of the United Kingdom of Great
Britain and Ireland, and by the members
thereof."
(emphasis supplied)
It is thus clear that unlike India, in Canada, the
Legislature could not enlarge its privileges by enacting a
law investing in it the privileges enjoyed by British
Parliament. There is no such limitation under Section 49
of the Australian Constitution nor under Article 105(3) or
Article 194(3) of the Indian Constitution.
In spite of the above provision in the Constitution,
the right of the House to expel a member has never been
challenged. Sir John George Bourinot, in his work
'Parliamentary Procedure and Practice in the Dominion of
Canada', (4th Edn., p.64), states;
"The right of a legislative body to suspend
or expel a member for what is sufficient cause
in its own judgment is undoubted. Such a
power is absolutely necessary to the
conservation of the dignity and usefulness of a
body. Yet expulsion, though it vacates the seat
of a member, does not create any disability to
serve again in Parliament".
The learned counsel for the parties also drew our
attention to certain cases from Canada. We may notice
only few recent decisions.
In Speaker of the House of Assembly v. Canadian
Broadcasting Corporation, (1993) 1 SCR 319, the
Broadcasting Corporation made an application to the
Nova Scotia Supreme Court, Trial Division for an order
allowing it "to film the proceedings of the House of
Assembly with its own cameras". The application was
based on the Canadian Charter of Rights and Freedoms
which guaranteed freedom of expression and freedom of
press. The Corporation claimed that it was possible to
film the proceedings from the public gallery with modern
equipments. The Speaker, however, declined permission
on the ground that Corporation's proposal would
interfere with "the decorum and orderly proceedings of
the House". The Trial Judge granted the claim which was
upheld in appeal. The Speaker approached the Supreme
Court.
One of the questions raised before the Supreme
Court was as to whether the House could exercise
privilege by refusing access to the media. Lamer, CJ
discussed the doctrine of privilege in detail in the light of
the doctrine of necessity. Referring to Stockdale v.
Hansard, (1839) 9 Ad & E 1 : 112 ER 1112 (QB), he
stated that parliamentary privilege and immunity are
founded upon necessity. 'Parliamentary privileges' and
the breadth of individual privileges encompassed by that
term were accorded to members of the Houses of
Parliament and the Legislative Assemblies because they
were considered necessary for the discharge of their
legislative functions.
Mc Lachlin, J. (as she then was) agreed with the
learned Chief Justice and observed that Canadian
legislative Assemblies could claim as inherent privileges
those rights which were necessary to their 'capacity to
function as legislative bodies'. Necessity was thus the
test. Referring to Kielley v. Carson (1842), 4 MOO PC 63 :
13 ER 225, it was observed that though the Privy Council
held that a Colonial Assembly had no power to commit
for a contempt like House of Commons of the United
Kingdom, it did not dispute that such powers "as are
necessary to the existence of such body and the proper
exercise of the functions which it is intended to execute"
were bestowed with the very establishment of the
Newfoundland Assembly.
The Court also considered the ambit and scope of
judicial review and exercise of parliamentary privilege.
Referring to Sir Erskine May that "after some three and a
half centuries, the boundary between the competence of
the law courts and the jurisdiction of either House in
matters of privilege is still not entirely determined", the
Court observed that originally the Houses of Parliament
took the position that they were the exclusive judges of
their privileges. They claimed to be 'absolute arbiters' in
respect of parliamentary privileges and took the stand
that their decisions were not reviewable by any other
Court or Authority. The Courts, on the other hand,
treated lex parliamentis to be part of the 'law of the land'
and as such, within their judicial control. Judiciary
exercised the power particularly when issues involved the
rights of third party. According to Courts, their role was
to interpret the law of Parliament and to apply it.
Holding the test of 'necessity' for privilege as
'jurisdictional test', the learned Judge stated; "The test of
necessity is not applied as a standard for judging the
content of a claimed privilege, but for the purpose of
determining the necessary sphere of exclusive or absolute
'parliamentary' or 'legislative' jurisdiction. If a matter falls
within this necessary sphere of matters without which the
dignity and efficiency of the House cannot be upheld,
courts will not inquire into questions concerning such
privilege. All such questions will instead fall to the exclusive
jurisdiction of the legislative body.
(emphasis supplied)
Keeping in view important roles of different
branches of Government, it was observed;
"Our democratic government consists of
several branches: the Crown, as represented by
the Governor General and the provincial
counterparts of that office; the legislative body;
the executive; and the courts. It is fundamental
to the working of government as a whole that all
these parts play their proper role. It is equally
fundamental that no one of them overstep its
bounds, that each show proper deference for
the legitimate sphere of activity of the other".
Reference was also made to Fred Harvey v. Attorney
General for New Brunswick, (1996) 2 SCR 876. In that
case, a Member of provincial Legislature was convicted of
illegal practice and was expelled from legislature pursuant
to provincial elections legislation. The allegation proved
against him was that he had induced a 16-year old female
to vote in the election, knowing fully well that she was not
eligible to vote. He was also disqualified for a period of five
years from contesting any election. The Court of Appeal
dismissed the appeal of the appellant. The aggrieved
Member approached the Supreme Court.
Dismissing the appeal and upholding the order of the
Court of Appeal, the Supreme Court held that there was
no question that the appellant's actions amounted to an
attack on the integrity of the electoral process which was
at the heart of a free and democratic society and
constituted a breach of trust deserving of censure.
Dealing with Parliamentary privileges and
jurisdiction of Courts, Mc Lachlin, J. stated;
If democracies are to survive, they must
insist upon the integrity of those who seek and
hold public office. They cannot tolerate corrupt
practices within the legislature. Nor can they
tolerate electoral fraud. If they do, two
consequences are apt to result. First, the
functioning of the legislature may be impaired.
Second, public confidence in the legislature
and the government may be undermined. No
democracy can afford either.
When faced with behaviour that undermines
their fundamental integrity, legislatures are
required to act. That action may range from
discipline for minor irregularities to expulsion
and disqualification for more serious
violations. Expulsion and disqualification
assure the public that those who have corruptly
taken or abused office are removed. The
legislative process is purged and the legislature,
now restored, may discharge its duties as it
should.
(emphasis supplied)
It was, however, added that it was not to say that
the courts have no role to play in the debate which arises
where individual rights are alleged to conflict with
parliamentary privilege. Under the British system of
parliamentary supremacy, the courts arguably play no
role in monitoring the exercise of parliamentary privilege.
In Canada, that has been altered by the Charter of 1926.
To prevent abuses cloaked in the guise of privilege from
trumping legitimate Charter interests, the courts must
inquire into the legitimacy of a claim of parliamentary
privilege. As clarified in Canadian Broadcasting
Corporation, the courts may question whether a claimed
privilege exists. This screening role means that where it
is alleged that a person has been expelled or disqualified
on invalid grounds, the courts must determine whether
the act falls within the scope of parliamentary privilege. If
the court concludes that it does, no further review lies.
(emphasis supplied)
It was also stated that British Jurisprudence makes
distinction between privileges asserted by resolution and
privileges effected automatically by statute. In respect of
privileges asserted by resolution, British Courts have
developed a doctrine of necessity, enabling them to
inquire whether the action taken by resolution is
necessary to the proper functioning of the House. The
'necessity inquiry' does not ask whether the particular
action at issue was necessary, and hence does not
involve substantive judicial review. It rather asks whether
the dignity, integrity and efficiency of the legislative body
could be maintained if it were not permitted to carry out
the type of action sought to be taken, for example to
expel a member from the Legislature or disqualify a
person from seeking office on ground of corruption.
A question was raised as to whether Parliament
could expel any of its members. Upholding such right,
the Court stated;
"The power of Parliament to expel a member is
undoubted. This power has been repeatedly
exercised by the English and Colonial
Parliaments, either when members have been
guilty of a positive crime, or have offended
against the laws and regulations of the House,
or have been guilty of fraudulent or other
discreditable acts, which proved that they were
unfit to exercise the trust which their
constituents had reposed in them, and that
they ought not to continue to associate with
the other members of the legislature.
Expulsion may be justified on two grounds: to
enforce discipline within the House; and to
remove those whose behaviour has made them
unfit to remain as members.
The right of expulsion on these two grounds --
discipline and unfit behaviour -- is a matter of
parliamentary privilege and is not subject to
judicial review". (emphasis supplied)
The Court concluded;
"This protection is now accepted, in Canada as
in Britain, as a fundamental tenet of
parliamentary privilege. The point is not that
the legislature is always right. The point is
rather that the legislature is in at least as good
a position as the courts, and often in a better
position, to decide what it requires to function
effectively. In these circumstances, a dispute
in the courts about the propriety of the
legislative body's decision, with the delays and
uncertainties that such disputes inevitably
impose on the conduct of legislative business,
is unjustified".
Very recently, in House of Commons v. Satnam Vaid,
(2005) 1 SCR 667, a chauffeur of a Speaker in spite of an
order in his favour, was not reinstated in service. He
made a complaint to the Canadian Human Rights
Commission to investigate into the matter. The
Commission accepted the complaint of the employee and
referred the matter to the Tribunal. The Speaker
challenged the jurisdiction of the Tribunal contending
that it was his power of 'hire and fire' and there was no
review. The Tribunal dismissed the challenge. The
Federal Court upheld the Tribunal's decision. When the
matter reached the Supreme Court, the question as to
applicability of privileges was raised. It was held that
within categories of privilege, Parliament was the sole
judge of the occasion and manner of its exercise and
such exercise was not reviewable by the courts. However,
the existence and scope of the privileges could be
inquired into by Courts.
Binnie J. stated; "It is a wise principle that the
courts and Parliament strive to respect each other's role
in the conduct of public affairs. Parliament, for its part,
refrains from commenting on matters before the courts
under the sub judice rule. The courts, for their part, are
careful not to interfere with the workings of Parliament.
None of the parties to this proceeding questions the pre-
eminent importance of the House of Commons as 'the
grand inquest of the nation'. Nor is doubt thrown by any
party on the need for its legislative activities to proceed
unimpeded by any external body or institution, including
the courts. It would be intolerable, for example, if a
member of the House of Commons who was overlooked
by the Speaker at question period could invoke the
investigatory powers of the Canadian Human Rights
Commission with a complaint that the Speaker's choice
of another member of the House discriminated on some
ground prohibited by the Canadian Human Rights Act, or
to seek a ruling from the ordinary courts that the
Speaker's choice violated the member's guarantee of free
speech under the Charter. These are truly matters
'internal to the House' to be resolved by its own
procedures. Quite apart from the potential interference
by outsiders in the direction of the House, such external
intervention would inevitably create delays, disruption,
uncertainties and costs which would hold up the nation's
business and on that account would be unacceptable
even if, in the end, the Speaker's rulings were vindicated
as entirely proper".
Emphasising on resolution of conflict between
Parliament and Courts in respect of 'legitimate sphere of
activity of the other', the Court observed;
"Our democratic government consists of
several branches: the Crown, as represented
by the Governor General and the provincial
counterparts of that office; the legislative body;
the executive; and the courts. It is
fundamental to the working of government as
a whole that all these parts play their proper
role. It is equally fundamental that no one of
them overstep its bounds, that each show
proper deference for the legitimate sphere of
activity of the other".
ENGLISH LAW
English Constitution was neither established by any
single action nor on any particular day. It has grown
from the political institutions of people who respected
monarchy but equally insisted for democracy and
parliamentary institution. The origins of parliamentary
privileges are thus inextricably interwined with the
history of Parliament in England; and more specifically,
the battle between English Monarch and Parliament;
between the House of Commons and House of Lords as
also between Parliament and Courts.
Parliament emerged in the thirteenth century.
English legal history traces its roots in Magna Carta.
Magna Carta had been described as a 'constitutional
myth' because it was a document which came into
existence on account of grievances of feudal magnates
(barons) (Ann Lyon : 'Constitutional history of the United
Kingdom, (2003); p.39). The Magna Carta declared that
the King was not above the law.
In its creative sense, in England the House did not
sit down to build its edifice of the powers, privileges and
immunities of Parliament. The evolution of English
Parliamentary institution has thus historical
development. It is the story of conflict between Crown's
absolute prerogatives and Commons' insistence for
powers, privileges and immunities; struggle between high
handed actions of Monarchs and People's claim of
democratic means and methods. Parliamentary privileges
are the rights which Houses of Parliament and members
possess so as to enable them to carry out their functions
effectively and efficiently. Some of the parliamentary
privileges thus preceded Parliament itself. They are,
therefore, rightly described by Sir Erskine May as
'fundamental rights' of the House as against the
prerogatives of the Crown, the authority of ordinary
Courts of Law and the special rights of the House of
Lords.
Initially, the House simply claimed privilege. They
neither made request to the Crown for their recognition
nor to Courts for their enforcement. Parliamentary
privileges in that sense are outside the law, or a law unto
themselves. For instance, the House would not go to
Crown or to Court for release of its member illegally
detained. It would also not pray for a writ of habeas
corpus. It would simply command the Sergeant-at-Arms
with the ceremonial mace to the prison and get the
Member released on its own authority.
As Holdsworth ('A History of English Law', Second
Edition; pp.92-93), stated; "It was the privilege of the
House which enabled it to act freely, to carry on the
controversy with the King in a Parliamentary way, and
thus to secure a continuous development of
constitutional principles. It is, therefore, not surprising to
find that the earliest controversies between James I and
his Parliaments turned upon questions of privilege, and
that these same questions were always in the forefront of
the constitutional controversies all through this period".
He also added that Parliament asserted and used its
privileges to win for itself the position of a partner with
the King in the work of governing the State.
Sir Edward Coke was in favour of 'High Court of
Parliament' having its law and was of the view that the
matters decided in Parliament were not part of Common
Law. He observed that it was not for a Judge to judge any
law, custom or privilege of Parliament. The laws,
customs, liberties and privileges of Parliament are better
understood by precedents and experience than can be
expressed by a pen.
As Lord Tennyson stated;
"A land of settled government,
A land of just and old renown,
Where Freedom slowly broadens down,
From precedent to precedent."
Let us consider the view points of learned authors,
jurists and academicians on this aspect.
In Halsbury's Laws of England, (Fourth Edn.;
Reissue : Vol. 34; p. 569; para 1026); it has been stated;
House of Commons' power of expulsion.
Although the House of Commons has
delegated its right to be the judge in
controverted elections, it retains its right to
decide upon the qualifications of any of its
members to sit and vote in Parliament.
If in the opinion of the House a member
has conducted himself in a manner which
renders him unfit to serve as a member of
Parliament, he may be expelled, but unless the
cause of his expulsion by the House
constitutes in itself a disqualification to sit and
vote in the House, he remains capable of re-
election. (emphasis supplied)
From the above statement of law, it is explicitly
clear that the two things, namely, (i) expulsion; and (ii)
disqualification are different and distinct. A member can
be expelled by the Legislature if his conduct renders him
'unfit' to continue as such. It, however, does not ipso
facto disqualify him for re-election. An expelled member
may be re-elected and no objection can be raised against
his re-election, as was the case of John Wilkes in 1769.
O. Hood Phillips also states ('Constitutional and
Administrative Law', Fourth Edition; p. 180) that the
House may also expel a member, who although not
subject to any legal disability, is in its opinion unfit to
serve as a member. This is commonly done when the
Court notifies the Speaker that a member has been
convicted of a misdemeanour. The House cannot prevent
an expelled member from being re-elected, as happened
several times in the case of John Wilkes between 1769
and 1794, but it can refuse to allow him to take seat.
Wade and Phillips also expressed the same opinion.
In 'Constitutional Law', (7th Edition; p.793); it was stated;
"The House of Commons cannot of course
create disqualifications unrecognized by law
but it may expel any member who conducts
himself in a manner unfit for membership".
Sir William Anson in "The Law and Custom of the
Constitution", (Fifth Edn; Vol. I; pp. 187-88) states;
"In the case of its own members, the
House has a stronger mode of expressing its
displeasure. It can by resolution expel a
member, and order the Speaker to issue his
warrant for a new writ for the seat from which
the member has been expelled. But it cannot
prevent the re-election of such a member by
declaring him incapable of sitting in that
Parliament. In attempting to do this, in the
case of Wilkes, the House had ultimately to
admit that it could not create a disqualification
unrecognized by law".
Griffith and Ryle in "Parliament, functions, practice
and procedures", (1989), at p.85 stated;
"The reconciliation of these two claims
the need to maintain parliamentary privileges
and the desirability of not abusing them has
been the hall-mark of the House of Commons
treatment of privilege issues in recent years".
Dealing with the penal powers of the House, the
learned authors proceeded to state: (pp.91-92);
"Laws are meaningless unless there is
power to enforce them by imposing penalties
on those who wreak them. The House does not
rely on the courts but has its own penal
jurisdiction.
The severest and historically most
important power is that of commitment .
Two other punishments can be ordered
for Members who offend the House namely
expulsion, or suspension from the service of
the House for a specified period or until the
end of the session.
Expulsion is the ultimate sanction against
a Member. It is an outstanding demonstration
of the House's power to regulate its own
proceedings, even its composition. The
expulsion of a Member cannot be challenged.
(emphasis supplied)
Consideration of powers, privileges and immunities
of the British Parliament would not be complete if one
does not refer to relevant statements and propositions of
law by Sir Erskine May in his celebrated and
monumental work titled 'Treatise on the Law, Privileges,
Proceedings and Usage of Parliament'. "This work has
assumed the status of a classic on the subject and is
usually regarded as an authoritative exposition of
parliamentary practice".
The attention of the Court was, however, invited to
the changed approach by the Revising Authors on the
power of Parliament to expel a member. It would,
therefore, be appropriate if I refer to both the editions of
1983 and of 2004.
In Twentieth Edition by Sir Charles Gordon (1983),
in Chapter 9 (Penal Jurisdiction of the Houses of
Parliament), it had been stated;
PUNISHMENT INFLICTED ON MEMBERS
In the case of contempts committed
against the House of Commons by Members,
two other penalties are available, viz.
suspension from the service of the House and
expulsion. In some cases expulsion has been
inflicted in addition to committal.
There was a sub-topic as under;
Expulsion by the Commons
The purpose of expulsion is not so much
disciplinary as remedial, not so much to
punish Members as to rid the House of
persons who are unfit for membership. It may
justly be regarded as an example of the
House's power to regulate its own constitution.
But it is more convenient to treat it among the
methods of punishment at the disposal of the
House.
In Twenty-third Edition by Sir William McKay
(2004), Chapter 9 titles (Penal jurisdiction of Both
Houses). The relevant discussion reads thus;
PUNISHMENT OF MEMBERS
In the case of contempts committed
against the House of Commons by Members,
or where the House considers that a Member's
conduct ought to attract some sanction (see
pp. 132-33), two other penalties are available
in addition to those already mentioned :
suspension from the service of the House, and
expulsion, sometimes in addition to committal.
Under sub-topic 'Expulsion', it was stated;
EXPULSION
The expulsion by the House of Commons
of one of its Members may be regarded as an
example of the House's power to regulate its
own constitution, though it is, for convenience,
treated here as one of the methods of
punishment at the disposal of the House.
Members have been expelled for a wide variety
of causes.
On the basis of above, it was submitted by the
learned counsel for the petitioners that the power of
expulsion by Parliament as an independent punishment
has not been recognized by May. It has now remained as
part of power to regulate its own constitution. Since no
such power has been possessed by Indian Parliament, it
cannot expel any member.
I must frankly admit that I am unable to agree with
the learned counsel. The Revising Author refers to
punishment of members and in no uncertain terms
states that if the House considers conduct (misconduct)
of a Member objectionable attracting sanction,
appropriate punishment can be imposed on him. Over
and above other penalties, 'expulsion' has been
specifically and expressly mentioned therein. As will be
seen later on in this judgment, the Framers of our
Constitution have also reserved this right with the
Parliament/State Legislature. The above argument of the
petitioners, in my opinion, therefore, does not carry the
case further.
ILLUSTRATIVE CASES
Though several cases have been cited by the learned
counsel for both the sides in support of their contentions
and submissions, I will refer to the cases which related to
expulsion of membership of Parliament.
Probably, the earliest case was of Mr. Hall. In 1580,
Mr. Hall, a Member of House of Commons published a
book containing derogatory remarks against the Members
of the House. On the basis of a complaint, the matter was
referred to the Privilege Committee which found him
guilty. In spite of apology tendered by him, he was
committed to the Tower of London for six months, was
fined and also expelled.
In a subsequent case in 1707, Mr. Asquill, a Member
of Parliament wrote a book wherein disparaging remarks
on Christian Religion were made. Though nothing was
stated by him against the House or against Members of
the House, Mr. Asquill was expelled being 'unfit' as
Member.
Asquill thus established that the House of Commons
could expel a Member for his actions even outside the
House provided the House finds him unfit to be
continued as a Member of Parliament.
In 1819, Mr. Hobhouse, a Member of House of
Commons wrote a pamphlet making the following
comment;
"Nothing but brute force, or the pressing fear
of it would reform Parliament".
Contempt proceedings were initiated against
Hobhouse and he was imprisoned.
In 1838, Mr. O'Connell, a member of House of
Commons said, outside the house of Parliament;
"Foul perjury in the Torry Committees of
the House of Commonswho took oaths
according to Justice but voted for Party."
He was reprimanded. Mr. Sandham was likewise
admonished in 1930 for levelling allegations against the
Members of the House.
Special reference was made to Bradlough v. Gossett,
(1884) 12 QBD 275. In that case, B, duly elected Member
of Borough was refused by the Speaker to administer
oath and was excluded from the House. B challenged the
action.
It was held that the matter related to the internal
management of the House of Commons and the Court
had no power to interfere.
Lord Coleridge, C.J. stated;
What is said or done within the walls of
Parliament cannot be inquired into in a
court of law The jurisdiction of the
Houses over their own Members, their
right to impose discipline within their
walls, is absolute and exclusive. To use
the words of Lord Ellenborough, "They
would sink into utter contempt and
efficiency without it". (Burdett v. Abbot,
14 East 148, 152).
Dealing with the contention that the House
exceeded its legal process in not allowing B to take oath
which he had right to take, the learned Chief Justice
said; "If injustice has been done, it is injustice for which
the courts of law afford no remedy." An appeal should not
be made to the Court but to the constituencies.
As observed by His Lordship in Stockdale v.
Hansard, (1839) 9 Ad & E 1 : 112 ER 1112 (QB), "the
House should have exclusive jurisdiction to regulate the
course of its own proceedings, and animadvert upon any
conduct there in violation of its rules or derogation from
its dignity, stands upon the clearest grounds of
necessity."
Stephen, J. was much more specific and emphatic.
He said;
"The legal question which this statement
of the case appears to me to raise for our
decision is this:Suppose that the House of
Commons forbids one of its members to do
that which an Act of Parliament requires him
to do, and, in order to enforce its prohibition,
directs its executive officer to exclude him from
the House by force if necessary, is such an
order one which we can declare to be void and
restrain the executive officer of the House from
carrying cut? In my opinion, we have no such
power. I think that the House of Commons is
not subject to the control of Her Majesty's
Courts in its administration of the control of
Her Majesty's Courts in its administration of
that part of the statute-law which has relation
to its own internal proceedings, and that the
use of such actual force as may be necessary
to carry into effect such a resolution as the one
before us is justifiable".
It was further stated; "It seems to follow that the
House of Commons has the exclusive power of
interpreting the statute, so far as the regulation of its
own proceedings within its own walls is concerned; and
that, even if that interpretation should be erroneous, this
Court has no power to interfere with it directly or
indirectly".
His Lordship concluded;
"In my opinion the House stands with
relation to such rights and to the resolutions
which affect their exercise, in precisely the
same relation as we the judges of this Court
stand in to the laws which regulate the rights
of which we are the guardians, and to the
judgments which apply them to particular
cases; that is to say, they are bound by the
most solemn obligations which can bind men
to any course of conduct whatever, to guide
their conduct by the law as they understand it.
If they misunderstand it, or (I apologize for the
supposition) willfully disregard it, they
resemble mistaken or unjust judges; but in
either case, there is in my judgment no appeal
from their decision. The law of the land gives
no such appeal; no precedent has been or can
be produced in which any Court has ever
interfered with the internal affairs of either
House of Parliament, though the cases are no
doubt numerous in which the Courts have
declared the limits of their powers outside of
their respective Houses. This is enough to
justify the conclusion at which I arrive".
One may not agree with the wider observations of
Stephen, J. particularly in the light of written
Constitution and power of Judicial Review conferred on
this Court which has been held to be 'basic feature' of
our Constitution. But it certainly indicates approach of
judiciary while dealing with powers, privileges and rights
of Parliament over its members.
I may also refer to a case which is very much
relevant and was referable to a point in time our
Constitution was about to commence.
One Garry Allingham, a Member of Parliament got
published an article on April 3, 1947 (before few months
of Independence of India) making derogatory remarks
against members of the House. A complaint was made to
the House of Commons. Allingham was called upon to
explain his conduct by the House. Allingham offered
regrets for unfounded imputations against Members and
tendered unconditional apology and said;
"I have humbly acknowledged my
mistake, and nothing could be more
sincere and heart-felt than my remorse
for my action. Having done all that it is
humanly possible to do to put this deeply
regretted affair straight, I am content to
submit myself to this House, confident
that it will act in its traditional spirit of
justice and generosity".
After the close of Allingham's speech a resolution
was proposed holding him guilty of gross contempt of the
House and to 'proceed with utmost severity against such
offender'. A motion was moved to suspend Allingham
from service of the House for six months and to deprive
him of salary for that period. But an amendment to the
motion was sought to the effect that Allingham be
expelled from the House and finally the amended
resolution was passed by the House.
Allingham thus clearly established that on the eve of
British Empire in this country and on the dawn of
Independence of India, one of the powers and privileges
enjoyed by British Parliament was power of expulsion of a
member from Parliament.
Finally, I may refer to a post-Constitution case of
Mr. Peter Arthus David Baker (1954). He was a Member
of House of Commons. A competent Court of Law held
him guilty of forgery and convicted and sentenced him.
The factum of conviction was officially communicated by
the Court to the Speaker of the House. Baker, in his
letter to the Speaker of the House, expressed remorse
about his conduct which was not connected with his
position and status as a member of the House.
He, inter alia, stated;
"I must end as I began, by begging the
House to accept my most sincere apology. I
can only assure you that my regret, remorse
and repentance during the past three months
were doubted by the knowledge that, in
addition to my friends and colleagues
elsewhere, I had also embarrassed my friends
and colleagues in the House of Commons. I
can only ask you and, through you, them to
accept this expression of these regrets."
The entire letter was read out to the House. After
consideration, the following resolution was passed;
"Resolved, that Mr. Peter Arthus David Baker be
expelled from this House."
Baker proved that the House of Commons
possessed and continued to possess power to expel a
Member for his objectionable activity not only in the
House in his capacity as a Member as such but also
outside the House if it is found to be otherwise improper,
or tarnishing the image of the House in public eye or
making him 'unfit' to continue to be a Member of an
august body.
[This case is also relevant inasmuch as the
Constitution (Forty-fourth Amendment) Act, 1978 by
which Article 105(3) has been amended, lays down that
whenever a question of powers, privileges and immunities
of Parliament arises, it will be ascertained whether such
power, privilege or immunity was available to the House
of Commons on the day the Amendment came into force,
i.e. on June 20, 1979].
The petitioners strongly relied upon a decision of
the Judicial Committee of the Privy Council in Edward
Keilley v. William Carson, (1842) : 4 MOO PC 63 : 13 ER
225. K was a District Surgeon and Manager of Hospital
while C was a Member of Assembly of Newfoundland. C
made certain adverse remarks in respect of Hospital
Management by K. K threatened C for criticizing the
management and added; "Your privilege shall not protect
you". C complained to the House. The Committee of
Privilege found K guilty of the breach of privilege of the
House and committed him to the goal.
K thereupon brought an action of trespass and false
imprisonment against the defendants but failed. Before
the Privy Council, one of the questions was as to whether
the Assembly of Newfoundland had power to commit for
breach of privilege, as incident to the House as a
legislative body. According to K, the Assembly did not
possess such power. Drawing the distinction between (a)
conquered colonies, and (b) settled colonies, it was urged
that in the former, the power of the Crown was
paramount, but in the latter, the Colonists carried with
them the great Charter of Liberty (Magna Carta) that "No
man shall be imprisoned but by the lawful judgment of
his peers, or by the law of the land."
The Privy Council held that Newfoundland was a
settled and not a conquered colony and the settlers
carried with them such portion of its Common Law and
Statute Law as was conferred and also the rights and
immunities of British subjects. The Judicial Committee
held that the Crown did not invest upon the Legislative
Assembly of Newfoundland the power to commit for its
contempt.
The Committee then proceeded to consider the
question thus;
The whole question then is reduced to
this,--whether by law, the power of committing
for a contempt, not in the presence of the
Assembly, is incidental to every local
Legislature.
The Statute Law on this subject being
silent, the Common Law is to govern it; and
what is the Common Law, depends upon
principle and precedent.
Their Lordships see no reason to think,
that in the principle of the Common Law, any
other powers are given to them, than such as
are necessary to the existence of such a body,
and the proper exercise of the functions which
it is intended to execute. These powers are
granted by the very act of its establishment, an
act which on both sides, it is admitted, it was
competent for the Crown to perform. This is
the principle which governs all legal incidents.
"Quando lex aliquid concedit, concedere videtur
et illud, sine qua res ipsa esse non potest."W In
conformity to this principle we feel no doubt
that such an Assembly has the right of
protecting itself from all impediments to the
due course of its proceeding. To the full extent
of every measure which it may be really
necessary to adopt, to secure the free exercise
of their Legislative functions, they are justified
in acting by the principle of the Common Law.
But the power of punishing any one for past
misconduct as a contempt of its authority, and
adjudicating upon the fact of such contempt,
and the measure of punishment as a judicial
body, irresponsible to the party accused,
whatever the real facts may be, is of a very
different character, and by no means
essentially necessary for the exercise of its
functions by a local Legislature, whether
representative or not. All these functions may
be well performed without this extraordinary
power, and with the aid of the ordinary
tribunals to investigate and punish
contemptuous insults and interruptions.
These powers certainly do not exist in
corporate or other bodies, assembled, with
authority, to make bye-laws for the
government of particular trades, or united
numbers of individuals. The functions of a
Colonial Legislature are of a higher character,
and it is engaged in more important objects;
but still there is no reason why it should
possess the power in question.
It is said, however, that this power
belongs to the House of Commons in England
and this, it is contended, affords an authority
for holding that it belongs as a legal incident,
by the Common Law, to an Assembly with
analogous functions. But the reason why the
House of Commons has this power, is not
because it is a representative body with
legislative functions, but by virtue of ancient
usage and prescription; the lex et consuetude
Parliamenti, which forms a part of the Common
Law of the land, and according to which the
High Court of Parliament, before its division,
and the Houses of Lords and Commons since,
are invested with many peculiar privileges,
that of punishing for contempt being one. And,
besides, this argument from analogy would
prove too much, since it would be equally
available in favour of the assumption by the
Council of the Island, of the power of
commitment exercised by the House of Lords,
as well as in support of the right of
impeachment by the Assemblya claim for
which there is not any colour of foundation.
Nor can the power be said to be incident
to the Legislative Assembly by analogy to the
English Courts of Record which possess it.
This Assembly is no Court of Record, nor has it
any judicial functions whatever; and it is to be
remarked that all these bodies which possess
the power of adjudication upon, and punishing
in a summary manner, contempts of their
authority, have judicial functions, and exercise
this as incident to those which they possess,
except only the House of Commons, whose
authority, in this respect, rests upon ancient
usage.
Their Lordships, therefore, are of opinion,
that the principle of the Common Law, that
things necessary, pass as incident, does not
give the power contended for by the
Respondents as an incident to, and included in,
the grant of a subordinate Legislature".
(emphasis supplied)
The Council, in the light of above legal position did
not approve the law laid down earlier in Beaumont v.
Barrett, (1836) 1 MOO PC 80, (in which such right was
upheld and it was ruled that Legislative Assembly of
Jamaica had inherent power to punish for contempt of
the Assembly) and overruled it.
It was submitted that distinguished jurists and
eminent judges considered the question in Keilley and
concluded that Assembly of Newfoundland had no power
to commit a person for contempt which was exercised by
the British Parliament. The ratio in Keilley applies with
equal force to Indian Parliament and it must be held that
the position of our Parliament is not different than that of
Newsouthland and it also does not possess such power
claimed and exercised by British Parliament.
I am unable to agree with the learned counsel for
the petitioners. In my judgment, Keilley has no
application inasmuch as it was decided in the light of
factual, political and legal background which was totally
different. For more than one reason, the ratio in Keilley
cannot be pressed in service in the case on hand. Firstly,
India, after 1950, cannot be termed as a 'colonial
country' nor its Legislature Colonial or subordinate.
Secondly, it was not to derive powers, privileges or
prerogatives from the Crown either expressly or
impliedly. Thirdly, after January 26, 1950, it is the
written Constitution which has conferred powers,
privileges and immunities on Parliament/Legislatures
and on their members. Fourthly, provisions of the
Constitution themselves expressly conferred certain
powers, privileges and immunities [Arts.105(1), (2); 194
(1), (2)]. It also allowed Parliament to define them by
making an appropriate law and declared that until such
law is enacted, they would be such as exercised by
British Parliament on January 26, 1950 [Arts. 105(3),
194(3)]. Fifthly, the crucial question, in my opinion is not
the fact that the Assembly of Newsouthland had no right
to commit a person for contempt but whether or not the
British Parliament possessed such power on January 26,
1950. Sixthly, Keilley was not a member of Assembly and
as such the ruling in that case has no direct bearing on
the issue raised before this Court. Finally, Keilley was a
case of committal of a person to jail and keeping in view
the fact situation, the Privy Council decided the matter
which is absent here. For all these reasons, in my
considered opinion, reliance on Keilley is of no assistance
to the petitioners.
In fact, in a subsequent case in Thomas William
Doyle v. George Charles Falconer, (1866) LR 1 PC 328, the
distinction between power to punish for contempt and
power to take other steps had been noted by the Privy
Council. It held that the Legislative Assembly of Dominica
did not have the power to punish for contempt as no
such power was possessed by a Colonial Assembly by
analogy of lex et consuetude Parliamenti which was
inherent in Houses of Parliament in the United Kingdom
as the High Court of Parliament, or in a Court of Justice
as a Court of Record. A Colonial Assembly had no judicial
functions.
The Judicial Committee, however, after referring to
Keilley and other cases, proceeded to state;
If then, the power assumed by the
House of Assembly cannot be maintained by
analogy to the privileges of the House of
Commons, or the powers of a Court of
Record, is there any other legal foundation
upon which it may be rested. It has not, as
both sides admit, been expressly granted.
The learned counsel for the Appellants
invoked the principles of the Common Law,
and as it must be conceded that the
Common Law sanctions the exercise of the
prerogative by which the Assembly has been
created, the principles of Common Law,
which is embodied in the maxim, "Quando
lex aliquid concedit, concedere videtur et
illud, sine qua res ipsa esse non potest,"
applies to the body so created. The
question, therefore, is reduced to this : Is
the power to punish and commit for
contempt for contempts committed in its
presence one necessary to the existence of
such a body as the Assembly of Dominica,
and the proper exercise of the functions
which it is intended to execute? It is
necessary to distinguish between a power to
punish for a contempt, which is a judicial
power, and a power to remove any
obstruction offered to the deliberations or
proper action of a Legislative body during its
sitting, which last power is necessary for
self-preservation. If a Member of a Colonial
House of Assembly is guilty of disorderly
conduct in the House whilst sitting, he may
be removed, or excluded for a time, or even
expelled; but there is a great difference
between such powers and the judicial power
of inflicting a penal sentence for the offence.
The right to remove for self-security is one
thing, the right to inflict punishment is
another. The former is, in their Lordships'
judgment, all that is warranted by the legal
maxim that has been cited, but the latter is
not its legitimate consequence. To the
question, therefore, on which this case
depends, their Lordships must answer in
the negative.
(emphasis supplied)
(See also Broom's Legal Maxims, 10th Edn; p.314)
With respect, the above observations lay down
correct proposition of law.
Again, in Barton v. Taylor, (1886) 11 AC 197, the
Privy Council, approving Doyle drew a practical line
between defensive action and punitive action on the part
of the Assembly to be taken against erring members, and
said; "Powers to suspend toties quoties, sitting after
sitting, in case of repeated offences (and, it may be, till
submission or apology), and also to expel for aggravated
or persistent misconduct, appear to be sufficient to meet
even the extreme case of a member whose conduct is
habitually obstructive or disorderly."
An interesting point of law, which has been raised
before this Court was also raised before the Supreme
Court of New South Wales in Armstrong v. Budd, (1969)
71 SR 386 (NSW). Section 19 of the Constitution Act,
1902 laid down that in certain circumstances, a seat in
the Legislative Council would automatically fall vacant. A
was a member of Legislative Council against whom a suit
was filed. During the course of litigation, he gave
evidence. The evidence was disbelieved by the Court and
in the judgment, certain strictures were passed by the
trial Judge. The Legislative Council, on the basis of
comments and adverse observations, passed a resolution
and expelled A from the Council and declared his seat
vacant. A sought a declaration that the resolution was
ultra vires.
It was contended by A that since his case was not
covered by any of the eventualities enumerated in Section
19, he could not be disqualified. The Court, however,
negatived the contention. It observed that the case did
not fall in any of the clauses (a) to (f) of Section 19 of the
Act but stated that the said section did not constitute a
'complete code' for the vacation of seat.
Herron, C.J. stated.
For there exist well-recognized overriding
common-law principles which enlarge
parliamentary power. As applying to this case
the first or primary essentials may be stated
thus: in the absence of express grant the
Legislative Council possesses such powers and
privileges as are implied by reason of
necessity, the necessity which occasions the
implication of a particular power or privilege is
such as is necessary to the existence of the
Council or to the due and orderly exercise of
its functions.
His Lordship further stated;
This case appears to me to warrant a decision
that in special circumstances there is an area of
misconduct of a Member of Parliament
committed outside the House and disclosed in
curial proceedings which may, in special
circumstances, form a basis for the exercise of
the power of expulsion based upon a finding by
the House that such is necessary to its
existence or to the orderly exercise of its
important legislative functions.
(emphasis supplied)
Wallace, P. agreed with the learned Chief Justice
and observed;
I am of the opinion that the Legislative
Council has an implied power to expel a
member if it adjudges him to have been guilty of
conduct unworthy of a member. The nature of
this power is that it is solely defensivea
power to preserve and safeguard the dignity
and honour of the Council and the power
conduct and exercise of its duties. The power
extends to conduct outside the Council
provided the exercise of the power is solely and
genuinely inspired by the said defensive
objectives. The manner and the occasion of
the exercise of the power are for the decision of
the Counsel. (emphasis supplied)
Sugerman, J. in concurring opinion formulated the
doctrine of necessity in an effective manner by making
the following instructive observations;
"This necessity compels not only the
conceded power to expulsion arising from
disorderly conduct within the Chamber, but
also expulsion arising from conduct outside
the chamber, which, in the opinion of the
Council, renders a man unfit for service and
therefore one whose continued membership of
the Council would disable the Council from
discharging its duty and protecting its dignity
in the sense mentioned. That the proper
discharge of the legislative function by the
Council demands an orderly conduct of its
business is undoubted. That it demands
honesty and probity of its members should be
equally undoubted. Indeed, the need for
removal and replacement of a dishonest
member may be more imperative as a matter of
self-preservation, than that of an unruly
member". (emphasis supplied)
Mr. Andhyarujina, Sr. Advocate appearing for Union
of India placed before this Court particulars of expulsion
of members from the House of Commons in the last three
and half centuries. The particulars are as under;
Date
Member and Constituency
Reason
22nd
November
1667
John Ashburnham (Sussex)
Accepted a bribe
(#500 from
merchants who
wished to import
French wines).
21st April
1668
Hon. Henry Brouncker (New
Romney)
Invented orders from
the Duke of York to
down sail, which
prevented England
capitalising on its
naval victory off
Lowestoft in 1665.
1st
February
1678
Thomas Wancklyn (Westbury)
Corrupt misuse of
the privilege of
Parliament against
arrest of MP's
'menial servants'.
25th
March
1679
Edward Sackville (East
Grinstead)
Denunciation of
Titus Oates as a
'lying rogue' and
disbelief in the
'Popish Plot'.
28th
October
1680
Sir Robert Cann, Bt. (Bristol)
Statement that the
attempt to exclude
the Duke of York
from the succession
was a 'Presbyterian
Plot'.
29th
October
1680
Sir Francis Wythens
(Westminster)
Presented a petition
abhorring the
summons of a
Parliament which
would exclude the
Duke of York from
the succession.
14th
December
1680
Sir Robert Peyton (Middlesex)
Association with the
Duke of York and
alleged complicity in
the 'Meal-Tub Plot'
(attempt to implicate
exclusionists in a
plot to kill the King
and establish a
Commonwealth).
20th
January
1690
Sir Robert Sawyer (Cambridge
University)
Leading the
prosecution of Sir
Thomas Armstrong
for treason in the
Rye House Plot
while Attorney-
General. Armstrong
was convicted,
sentenced to death
and eventually
hanged, but his
conviction was later
ruled a miscarriage
of justice.
16th
March
1695
Sir John Trevor (Yarmouth, Isle
of Wight)
Corruption (Speaker
of the House of
Commons). Paid
1,000 guineas from
the Corporation of
London on passage
of the Orphans Bill.
26th
March
1695
John Hungerford (Scarborough)
Paid 20 guineas
from the Corporation
for his conduct as
Chairman of the
Committee of the
Whole House on the
Orphans Bill.
1st
February
1698
Charles Duncombe (Downton)
Obliged to pay
#10,000 to public
funds, Duncombe
bought Exchequer
Bills at a 5%
discount and
persuaded the seller
(John da Costa) to
endorse them as
though they had
been paid to him for
excise duty. This
allowed him to pay
them in at face value
and keep the
discount himself.
1st
February
1698
John Knight (Weymouth and
Melcombe Regis)
Persuaded his
brother William and
Reginald Marriott, a
Treasury Official,
falsely to endorse
#7,000 of Exchequer
Bills as though they
were paid to settle
tax payments (this
meant that the Bills,
circulated at a 10%
discount, increased
to their face value).
Tried to persuade
Marriott to take the
full blame.
10th
February
1699
James Isaacson (Banbury)
Commissioner of
Stamp Duty; this
office was a
disqualification
under the Lottery
Act of 1694.
13th
February
1699
Henry Cornish (Shaftesbury)
Commissioner in the
Stamp Office
managing Duties on
Vellum, Paper and
Parchment; this
office was a
disqualification
under the Lottery
Act of 1694.
14th
February
1699
Samuel Atkinson (Harwich)
Commissioner for
licensing hawkers
and pedlars; this
office was a
disqualification
under the Lottery
Act of 1694.
14th
February
1699
Sir Henry Furnese (Bramber)
Trustee for
circulating
Exchequer Bills;
acting as Receiver
and Manager of the
subscription of the
new East India
Company. These
offices were
disqualifications
under the Lottery
Act of 1694.
20th
February
1699
Richard Wollaston
(Whitchurch)
Receiver-General of
Taxes for
Hertfordshire; this
office was a
disqualification
under the Lottery
Act of 1694.
19th
February
1701
Sir Henry Furnese (Sandwich)
Trustee for
circulating
Exchequer Bills; this
office was a
disqualification
under the Lottery
Act of 1694.
22nd
February
1701
Gilbert Heathcote (City of
London)
Trustee for
circulating
Exchequer Bills; this
office was a
disqualification
under the Lottery
Act of 1694.
1st
February
1703
Rt. Hon. Earl of Ranelagh
(West Looe)
As Paymaster-
General of the
Army, appropriated
#904,138 of public
funds; had severe
discrepancies in his
accounts, which
were only made up
to March 1692.
18th
December
1707
John Asgill (Bramber)
Indebted to three
creditors (among
them Colonel John
Rice) for #10,000.
Author of a book
which argued that
the Bible proved
man may be
translated from life
on earth to eternal
life in heaven
without passing
through death. The
House held it to be
blasphemous. The
same member was
also expelled from
the Irish Parliament
on 11th October
1703.
15th
February
1711
Thomas Ridge (Poole)
Having been
contracted to supply
the fleet with 8,217
tuns of beer,
supplied only 4,482
tuns from his
brewery and paid
compensation at a
discounted rate for
the non-supplied
beer, thereby
defrauding public
funds.
12th
January
1712
Robert Walpole (King's Lynn)
Corruption while
Secretary at War.
Forage contracts he
negotiated stipulated
payments to Robert
Mann, a relation of
Walpole's, but
Walpole signed for
them and therefore
received the money.
19th
February
1712
Rt. Hon. Adam de Cardonnel
(Southampton)
While Secretary to
the Duke of
Marlborough, he
received an annual
gratuity of 500 gold
ducats from Sir
Solomon de Medina,
an army bread
contractor.
18th
March
1714
Sir Richard Steele
(Stockbridge)
Seditious libel.
Published an article
in The Guardian and
a pamphlet called
The Crisis exposing
the government's
support for French
inaction on the
demolition of
Dunkirk; demolition
was required under
the Treaty of
Utrecht.
2nd
February
1716
Thomas Forster
(Northumberland)
Participation in the
1715 Jacobite
rebellion (he was
General of all the
pretender's forces in
England).
23rd
March
1716
Lewis Pryse (Cardiganshire)
Refused to attend the
House to take oaths
of loyalty after the
Jacobite rebellion.
22nd June
1716
John Carnegie (Forfarshire)
Participation in the
1715 Jacobite
rebellion.
23rd
January
1721
Jacob Sawbridge (Cricklade)
Director of the South
Sea Company.
28th
January
1721
Sir Robert Chaplin, Bt. (Great
Grimsby)
Director of the South
Sea Company.
28th
January
1721
Francis Eyles (Devizes)
Director of the South
Sea Company.
30th
January
1721
Sir Theodore Janssen, Bt.
(Yarmouth, Isle of Wight)
Director of the South
Sea Company.
8th March
1721
Rt. Hon. John Aislabie (Ripon)
Negotiated the
agreement to take
over the national
debt between the
South Sea Company
and the government,
as Chancellor of the
Exchequer; received
#20,000 of South
Sea Company stock;
destroyed evidence
of his share dealings.
10th
March
1721
Sir George Caswall
(Leominster)
Banker of the South
Sea Company;
obtained for his
company #50,000
stock in the South
Sea Company while
the South Sea Bill
was still before
Parliament, and
without paying for it.
8th May
1721
Thomas Vernon (Whitchurch)
Attempt to influence
a member of the
committee on the
South Sea bubble in
favour of John
Aislabie, his brother-
in-law.
15th
February
1723
Viscount Barrington (Berwick-
upon-Tweed)
Involvement in a
Lottery held in
Hanover, but
organized in
London. The House
declared it illegal.
4th
February
1725
Francis Elde (Stafford)
Corrupt attempt to
compromise an
election petition
against him.
16th May
1726
John Ward (Weymouth and
Melcombe Regis)
Involved in a fraud
against the estate of
the late Duke of
Buckingham -
compelled to buy
Alum from Ward's
Alum works, but
which Ward kept
and sold again to
others.
30th
March
1732
John Birch (Weobley)
Fraudulent sale of
the Derwentwater
Estate (escheated to
the Crown by the
Earl of
Derwentwater,
convicted of High
Treason during the
1715 rebellion).
30th
March
1732
Denis Bond (Poole)
Fraudulent sale of
the Derwentwater
Estate (escheated to
the Crown by the
Earl of
Derwentwater,
convicted of High
Treason during the
1715 rebellion).
3rd April
1732
George Robinson (Great
Marlow)
Fraudulent use of the
funds of the
Charitable
Corporation for
speculation.
Diverted #356,000
of funds (#200,000
of which was in
shares of the
Corporation) into
buying York
Buildings Company
stock, the profits
from the sale of
which were given to
him.
4th May
1732
Rt. Hon. Sir Robert Sutton
(Nottinghamshire)
False statement that
the Charitable
Corporation's
authorized capital
had been exhausted,
allowing it to issue
more (and so finance
the corrupt
speculation of other
directors).
5th May
1732
Sir Archibald Grant, Bt.
(Aberdeenshire)
Fraudulent use of the
funds of the
Charitable
Corporation for
speculation.
Arranged for George
Robinson (see
above) to abscond.
20th
January
1764
John Wilkes (Aylesbury)
Absconded to France
after being charged
with libel over issue
no. 45 of the North
Briton.
3rd
February
1769
John Wilkes (Middlesex)
Previous conviction
for libel and
blasphemy, and a
further seditious
libel in the
Introduction to a
letter to Daniel
Ponton (Chairman of
Quarter Sessions at
Lambeth) in the St.
James's Chronicle.
(17th
February
1769
John Wilkes (Middlesex)
Returned despite his
previous expulsion.
The House resolved
that he "was, and is,
incapable of being
elected a Member to
serve in the present
Parliament.")
4th
December
1783
Christopher Atkinson (Hedon)
Convicted of perjury
after swearing that
accusations against
him of fraud were
untrue. The
accusations related
to his dealings with
the Victualling
Board, and were in a
letter printed in the
General Advertiser
on 31st January
1781.
2nd May
1796
John Fenton Cawthorne
(Lincoln)
Convicted by court
martial of fraud and
embezzlement of the
funds of the
Westminster
Regiment of the
Middlesex Militia;
cashiered for
conduct unbecoming
the character of an
officer and a
gentleman.
23rd May
1810
Joseph Hunt (Queenborough)
Absconded to
Lisbon after being
found to have
embezzled public
funds as Treasurer of
the Ordnance.
During his term he
left a deficit of
#93,296.
5th March
1812
Benjamin Walsh (Wootton
Bassett)
Convicted (later
pardoned) of
attempting to
defraud Solicitor-
General Sir Thomas
Plumer. Plumer had
given Walsh a draft
of #22,000 with
which to buy
exchequer bills, but
Walsh used it to play
the lottery, and lost;
he then converted
his remaining assets
into American
currency and set off
for Falmouth to sail
to America, but was
brought back. Walsh
had been expelled by
the Stock Exchange
for gross and
nefarious conduct in
1809.
5th July
1814
Hon. Andrew James Cochrane
(Grampound)
Convicted of
conspiracy to
defraud (circulated
false rumours of the
defeat and death of
Napoleon
Buonaparte in order
to boost share
prices); absconded to
France before
sentence.
5th July
1814
Lord Cochrane (Westminster)
Convicted of
conspiracy to
defraud (circulated
false rumours of the
defeat and death of
Napoleon
Buonaparte in order
to boost share
prices).
16th
February
1857
James Sadleir (Tipperary)
Absconded after
arrest for fraudulent
conversion. He had
abstracted #250,000
of stock from the
Tipperary Joint-
Stock Bank for his
brother's use.
22nd
February
1882
Charles Bradlaugh
(Northampton)
Contempt of orders
of the House of
Commons excluding
him from the
Parliamentary estate.
12th May
1891
Edmund Hope Verney
(Buckingham)
Convicted of
procuring a girl
under the age of 21
(Miss Nellie Maud
Baskett) for an
immoral purpose.
26th
February
1892
Edward Samuel Wesley de
Cobain (Belfast, East)
Absconded to the
United States of
America after a
warrant for his arrest
on charges of
commission of acts
of gross indecency
was issued. On 21st
March 1893 he was
convicted and
sentenced to twelve
months'
imprisonment with
hard labour.
2nd
March
1892
George Woodyatt Hastings
(Worcestershire, Eastern)
Convicted of
fraudulent
conversion. As a
Trustee for property
under the will of
John Brown,
appropriated to
himself over
#20,000 from the
estate.
1st
August
1922
Horatio William Bottomley
(Hackney, South)
Convicted of
fraudulent
conversion. Invited
contributions to the
Victory Bond Club
which were
supposed to be
invested in
government stock,
but were actually
diverted to his own
use.
30th
October
1947
Garry Allighan (Gravesend)
Contempt of the
House of Commons:
breach of privilege
over article in
'World's Press
News' alleging
corruption and
drunkenness among
Members; lying to
the committee
investigating the
allegations.
16th
December
1954
Peter Arthur David Baker
(Norfolk, South)
Convicted of
uttering forged
documents. Forged
signatures on letters
purporting to
guarantee debts in
excess of #100,000
owed by his
companies.
INDIAN LAW : HISTORIAL BACKGROUND
It is no doubt true that the existing law relating to
parliamentary privileges in India is essentially of English
origin. But the concept of parliamentary privileges was
not unknown to ancient India. Prititosh Roy in his work
'Parliamentary Privilege in India' (1991) states that even
during Vedic times, there were two assemblies; Sabha
and Samiti which were keeping check on all actions of the
King. Reference of Sabha and Samiti is found in all
Vedas. In Buddhist India, we find developed
parliamentary system. Members were not allowed to
disobey directions of Assemblies. Offenders were
answerable to Assemblies and after affording an
opportunity to them, appropriate actions used to be
taken against erring officers. It has thus 'rudimentary
features' of parliamentary privilege of today.
In 1600, East India Company came to India
primarily as 'trader'. The British Parliament effectively
intervened into the affairs of the Company by passing the
East India Company Act, 1773 (popularly known as 'the
Regulating Act, 1773'), which was followed by the Act of
1784. The roots of modern Parliamentary system were
laid in various Charter Acts of 1833, 1853, 1854, 1861,
1892, 1909, etc.
During 1915-50, there was remarkable growth and
development of Parliamentary privileges in India. For the
first time, a limited right of freedom of speech was
conferred on the Members of Legislature by the
Government of India Act, 1919 (Section 67). By the
Legislative Members Exemption Act, 1925, two
parliamentary privileges were allowed to Members; (i)
exemption from jury service; and (ii) freedom from arrest.
The Government of India Act, 1935 extended the
privileges conferred and immunities granted. The Indian
Independence Act, 1947 accorded sovereign legislative
power on the Indian Dominion.
CONSTITUTIONAL PROVISIONS
The Constitution of India came into force from
January 26, 1950. Part V contains the relevant
provisions relating to the Union. Whereas Chapters I and
IV deal with the Executive and Judiciary; Chapters II and
III relate to Parliament. Articles 79 to 88 provide for
constitution, composition, duration, etc. of both the
Houses and qualification of members, Articles 89 to 98
make provisions for election of Speaker, Deputy Speaker,
Chairman, Deputy Chairman and their salaries and
allowances. Article 101 deals with vacation of seats and
Article 102 specifies circumstances in which a person is
held disqualified to be chosen as or continued to be a
Member of Parliament. Article 103 attaches finality to
such decisions.
Three Articles are relevant and may be reproduced;
101. Vacation of seats. (1) No person
shall be a member of both Houses of
Parliament and provision shall be made by
Parliament by law for the vacation by a
person who is chosen a member of both
Houses of his seat in one House or the
other.
(2) No person shall be a member both of
Parliament and of a House of the
Legislature of a State, and if a person is
chosen a member both of Parliament and
of a House of the Legislature of a State,
then, at the expiration of such period as
may be specified in rules made by the
President, that person's seat in
Parliament shall become vacant, unless he
has previously resigned his seat in the
Legislature of the State.
(3) If a member of either House of
Parliament
(a) becomes subject to any of the
disqualifications mentioned in clause (1)
or clause (2) of article 102, or
(b) resigns his seat by writing under his
hand addressed to the Chairman or the
Speaker, as the case may be, and his
resignation is accepted by the Chairman
or the Speaker, as the case may be,
his seat shall thereupon become vacant:
Provided that in the case of any
resignation referred to in sub-clause (b), if
from information received or otherwise
and after making such inquiry as he
thinks fit, the Chairman or the Speaker,
as the case may be, is satisfied that such
resignation is not voluntary or genuine,
he shall not accept such resignation.
(4) If for a period of sixty days a member
of either House of Parliament is without
permission of the House absent from all
meetings thereof, the House may declare
his seat vacant:
Provided that in computing the said
period of sixty days no account shall be
taken of any period during which the
House is prorogued or is adjourned for
more than four consecutive days.
102.Disqualifications for membership.
(1) A person shall be disqualified for
being chosen as, and for being, a member
of either House of Parliament
(a) if he holds any office of profit under
the Government of India or the
Government of any State, other than an
office declared by Parliament by law not to
disqualify its holder;
(b) if he is of unsound mind and stands so
declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has
voluntarily acquired the citizenship of a
foreign State, or is under any
acknowledgment of allegiance or
adherence to a foreign State;
(e) if he is so disqualified by or under any
law made by Parliament.
Explanation.For the purposes of this
clause a person shall not be deemed to
hold an office of profit under the
Government of India or the Government of
any State by reason only that he is a
Minister either for the Union or for such
State.
(2) A person shall be disqualified for being
a member of either House of Parliament if
he is so disqualified under the Tenth
Schedule.
103. Decision on questions as to
disqualifications of members. (1) If
any question arises as to whether a
member of either House of Parliament has
become subject to any of the
disqualifications mentioned in clause (1)
of article 102, the question shall be
referred for the decision of the President
and his decision shall be final.
(2) Before giving any decision on any such
question, the President shall obtain the
opinion of the Election Commission and
shall act according to such opinion.
Article 105 provides for powers, privileges and
immunities of the members of Parliament. It is the
most important provision as to the controversy
raised in the present proceedings, and may be
quoted in extenso;
105. Powers, privileges, etc., of the
Houses of Parliament and of the
members and committees thereof.
(1) Subject to the provisions of this
Constitution and to the rules and
standing orders regulating the procedure
of Parliament, there shall be freedom of
speech in Parliament.
(2) No member of Parliament shall be
liable to any proceedings in any court in
respect of any thing said or any vote given
by him in Parliament or any committee
thereof, and no person shall be so liable
in respect of the publication by or under
the authority of either House of
Parliament of any report, paper, votes or
proceedings.
(3) In other respects, the powers,
privileges and immunities of each House
of Parliament, and of the members and
the committees of each House, shall be
such as may from time to time be defined
by Parliament by law, and, until so
defined, shall be those of that House and
of its members and committees
immediately before the coming into force of
section 15 of the Constitution (Forty-fourth
Amendment) Act, 1978.
(4) The provisions of clauses (1), (2) and
(3) shall apply in relation to persons who
by virtue of this Constitution have the
right to speak in, and otherwise to take
part in the proceedings of, a House of
Parliament or any committee thereof as
they apply in relation to members of
Parliament. (emphasis supplied)
Articles 107-22 contain provisions as to
legislative procedure. Article 118 enables both the
Houses of Parliament to make Rules for regulating
procedure and conduct of business. Article 121
puts restriction on discussion in Parliament in
respect of conduct of any Judge of the Supreme
Court or of a High Court in the discharge of his
duties. Article 122 prohibits courts from inquiring
into or questioning the validity of any proceedings
in Parliament on the ground of irregularity of
procedure. It reads thus;
122. Courts not to inquire into proceedings
of Parliament. (1) The validity of any
proceedings in Parliament shall not be called
in question on the ground of any alleged
irregularity of procedure.
(2) No officer or member of Parliament in whom
powers are vested by or under this
Constitution for regulating procedure or the
conduct of business, or for maintaining order,
in Parliament shall be subject to the
jurisdiction of any court in respect of the
exercise by him of those powers.
(emphasis supplied)
EXPULSION OF MEMBERS BY PARLIAMENT
There are certain instances wherein Indian
Parliament has exercised the power of expulsion of its
members.
The first case which came up for consideration
before Parliament was of Mr. H.G. Mudgal, a Member of
Lok Sabha. He suppressed certain material facts as to his
relationship with the Bombay Bullion Association. A
Committee of Enquiry found the charges proved and
came to the conclusion that the conduct of the Hon'ble
Member was 'derogatory of the dignity of the House
inconsistent with the standard which Parliament is
entitled to expect from its members'.
While addressing the House, the then Prime
Minister Pandit Jawaharlal Nehru referred to the work of
Sir Erkskine May, Article 105(3) of the Constitution and
practice in the British House.
But Pt. Nehru, in my opinion, rightly added;
"Apart from that, even if the Constitution had
made no reference to this, this House as a
sovereign Parliament must have inherently the
right to deal with its own problems as it chooses
and I cannot imagine anybody doubting that
fact".
(emphasis supplied)
Regarding approach of House in such cases, he
said;
"Indeed, I do not think it is normally
possible for this House in a sense to convert
itself into a court and consider in detail the
evidence in the case and then come to a
decision. Of course : the House is entitled to do
so : but it is normally not done : nor is it
considered, the proper procedure".
He then stated;
"The question arises whether in the
present case this should be done or something
else. I do submit that it is perfectly clear that
this case is not even a case which might be
called a marginal case, where people may have
two opinions about it, where one may have
doubts if a certain course suggested is much
too severe. The case, if I may say so, is as bad
as it could well be. If we consider even such a
case as a marginal case or as one where
perhaps a certain amount of laxity might be
shown, I think it will be unfortunate from a
variety of points of view, more especially
because, this being the first case of its kind
coming up before the House, if the House does
not express its will in such matters in clear,
unambiguous and forceful terms, then doubts
may very well arise in the public mind as to
whether the House is very definite about such
matters or not. Therefore, I do submit that it
has become a duty for us and an obligation to
be clear, precise and definite. The facts are
clear and precise and the decision should also
be clear and precise and unambiguous. And I
submit the decision of the House should be,
after accepting the finding of this report, to
resolve that the Member should be expelled
from the House".
A motion was then moved to expel Mr. Mudgal
which was accepted by the House and Mr. Mudgal was
expelled.
Likewise, power of expulsion was exercised by
Parliament against Mr. Subramanyam Swami (Rajya
Sabha) and Mrs. Indira Gandhi (Lok Sabha). The power
was also exercised in case of expulsion from Legislative
Assemblies of various States.
Kaul and Shakhder in their book 'Practice and
Procedure of Parliament', (5th Edn., p.262), stated;
Punishment of Members: In the case
of its own members, two other
punishments are also available to the
House by which it can express its
displeasure more strongly than by
admonition or reprimand, namely,
suspension from the service of the House
and expulsion.
EXPULSION OF MEMBERS AND COURTS
Concrete cases have also come before Indian
Judiciary against orders of expulsion passed by the
Legislature. Let us consider leading decisions on the
point.
So far as this Court is concerned, probably this is
the first case of the type and, therefore, is of extreme
importance. Few cases, which had come up for
consideration earlier did not directly deal with expulsion
of membership from Legislature. As already noted above,
though in some cases, Parliament had taken an action of
expelling its members, the aggrieved persons had not
approached this Court?.
The first case which came to be decided by the
Constitution Bench of this Court was M.S.M. Sharma v.
Shri Sri Krishna Sinha & Ors., 1959 Supp (1) SCR 806 :
AIR 1959 SC 395 ('Searchlight' for short). The petitioner,
who was Editor of English daily newspaper 'Searchlight'
published unedited proceedings of the Assembly. The
Legislative Assembly issued a notice for violating privilege
of the House and proposed to take action. The petitioner
challenged the proceedings inter alia contending that
they were in violation of fundamental right of free speech
and expression guaranteed under Article 19 (1)(a) read
with right to life under Article 21 of the Constitution.
Considering Article 194(3) [which is pari materia to
Article 105(3)] of the Constitution, and referring to
English Authorities, Das, CJ observed (for the majority);
The result of the foregoing discussion,
therefore, is that the House of Commons had
at the commencement of our Constitution the
power or privilege of prohibiting the
publication of even a true and faithful report of
the debates or proceedings that take place
within the House. A fortiori the House had at
the relevant time the power or privilege of
prohibiting the publication of an inaccurate or
garbled version of such debates or
proceedings. The latter part of Art. 194(3)
confers all these powers, privileges and
immunities on the House of the Legislature of
the States, as Art. 105(3) does on the Houses
of Parliament.
On the construction of Article 194(3), His Lordship
stated;
Our Constitution clearly provides that until
Parliament or the State Legislature, as the case
may be, makes a law defining the powers,
privileges and immunities of the House of
Commons as at the date of the commencement
of our Constitution and yet to deny them those
powers, privileges and immunities, after
finding that the House of Commons had them at
the relevant time, will be not to interpret the
Constitution but to re-make it. Nor do we share
the view that it will not be right to entrust our
Houses with these powers, privileges and
immunities, for we are well persuaded that our
Houses, like the House of Commons, will
appreciate the benefit of publicity and will not
exercise the powers, privileges and immunities
except in gross cases.
(emphasis supplied)
Harmoniously interpreting and reconciling Articles
194(3) and 19(1)(a), the Court held that in respect of
parliamentary proceedings, Article 19(1)(a) had no
application.
It is thus clear that Searchlight had nothing to do
with expulsion of a member, though it was relevant so far
as construction of Article 194(3) was concerned.
Another leading case of this Court was Powers,
Privileges and Immunities of State Legislatures, Article 143
of the Constitution, Re ('Keshav Singh' for short), (1965) 1
SCR 413 : AIR 1965 SC 745. Though Keshav Singh was
not a case of expulsion of a member of Legislature, it is
important as in exercise of 'advisory opinion' under
Article 143 of the Constitution, a larger Bench of seven
Judges considered various questions, including powers,
privileges and immunities of the Legislature.
In that case, K, who was not a member of the
House, published a pamphlet. He was proceeded against
for contempt of the House and breach of privilege for
publishing a pamphlet and was sent to jail. K filed a
petition for habeas corpus by engaging S as his advocate
and a Division Bench of two Judges of the High Court of
Allahabad (Lucknow Bench) released him on bail. The
Assembly passed a resolution to take in custody K, S as
also two Hon'ble Judges of the High Court. Both the
Judges instituted a writ petition in the High Court of
Allahabad. A Full Court on judicial side admitted the
petition and granted stay against execution of warrant of
arrest against Judges. In the unusual and extraordinary
circumstances, the President of India made reference to
this Court under Article 143 of the Constitution.
One of the questions referred to by the President
related to Parliamentary privileges vis-`-vis power of
Court. It read thus;
(4)Whether, on the facts and
circumstances of the case, it was competent
for the Full Bench of the High Court of Uttar
Pradesh to entertain and deal with the
petitions of the said two Hon'ble Judges and
Mr. B. Solomon, Advocate, and to pass interim
orders restraining the Speaker of the
Legislative Assembly of Uttar Pradesh and
other respondents to the said petitions from
implementing the aforesaid direction of the
said Legislative Assembly.
Before considering the ambit and scope of Article
194(3) and jurisdiction of the Legislature and the power
of judicial review of the High Court under Article 226, the
learned Chief Justice gave a golden advice stating;
In coming to the conclusion that the
content of Art. 194(3) must ultimately be
determined by courts and not by the
legislatures, we are not unmindful of the
grandeur and majesty of the taskwhich has
been assigned to the Legislatures under the
Constitution. Speaking broadly, all the
legislative chambers in our country today are
playing a significant role in the pursuit of the
ideal of a Welfare State which has been placed
by the Constitution before our country, and
that naturally gives the legislative chambers a
high place in the making of history today. The
High Courts also have to play an equally
significant role in the development of the rule
of law and there can be little doubt that the
successful working of the rule of law is the
basic foundation of the democratic way of life.
In this connection itis necessary to remember
that the status, dignity and importance of
these two respective institutions, the
Legislatures and the Judicature, are derived
primarily from 'the status dignity and
importance of the respective causes that are
assigned to their charge by the Constitution.
These two august bodies as well as the
Executive which is another important
constituent of a democratic State, must
function not in antinovel nor in a spirit of
hostility, but rationally, harmoniously and in
spirit of understanding within their respective
spheres, for such harmonious working of the
three constituents ofthe democratic state
alone will help the peaceful development,
growth and stabilization of the democratic way
of life in this country.
But when, asin the present case, a
controversy arises between the House and the
High Court, we must deal with the problem
objectively and impersonally. There is no
occasion to import heat into the debate or
discussion and no justification for the use of
strong language. The problem presented to us
by the present referenceis one of construing
the relevant provisions of the Constitution and
though its consideration may present some
difficult aspects, we must attempt to find the
answers as best as we can. In dealing with
a dispute like the present which concerns the
jurisdiction, the dignity and the independence
of two august bodies in a State, we must
remember that the objectivity of our approach
itself may incidentally be on trial. It is,
therefore, in a spirit of detached objective
enquiry which is the distinguishing feature of
judicial process that we propose to find
solutions to the questions framed for our
advisory opinion. If ultimately we come to the
conclusion that the view pressed before us by
Mr. Setalvad for the High Court is erroneous,
we would not hesitate to pronounce our verdict
against that view. On the other hand, if we
ultimately come to the conclusion that the
claim made by Mr. Seervai for the House
cannot, be sustained, we would not falter to
pronounce our verdict accordingly. In dealing
with problems of this importance and
significance, it is essential that we should
proceed to discharge our duty without fear or
favour, affection or ill-will and with the full
consciousness that it is our solemn obligation to
uphold the Constitution and the laws.
(emphasis supplied)
Then analyzing Article 194(3), the Court stated;
That takes us to clause (3). The first part
of this clause empowers the Legislatures of
States to make laws prescribing their powers,
privileges and immunities; the latter part
provides that until such laws are made, the
Legislatures in question shall enjoy the same
powers, privileges and immunities which the
House of Commons enjoyed at the
commencement of the Constitution. The
Constitution-makers must have thought that
the Legislatures would take some time to make
laws in respect of their powers, privileges and
immunities. During the interval, it was clearly
necessary to confer on them the necessary
powers, privileges and immunities. There can
be little doubt thatthe powers, privileges and
immunities which are contemplated by cl. (3),
are incidental powers, privileges and
immunities which every Legislature must
possess in order that it may be able to function
effectively, and that explains the purpose of
the latter part of clause (3).
This clause requires that the powers,
privileges and immunities which are claimed
by the House must be shown to have subsisted
at the commencement of the Constitution, i.e.,
on January 26, 150. It is well-known that out
of a large number o privileges and powers
which the House of Commons claimed during
the days of its bitter struggle for recognition,
some were given up in course of time, and
some virtually faded out by desuetude; and
so, in every case where a power is claimed, it
is necessary to enquire whether it was an
existing power at the relevant time.It must
also appear that the said power was not only
claimed by the House of Commons, but was
recognised by the English Courts. It would
obviously be idle to contend that if a particular
power which is claimed by the House was
claimed by the House of Commons but was not
recognised by the English courts, it would still
be upheld under the latter part of clause (3)
only on the ground that it was in fact claimed
by the House of Commons. In other words,
the inquiry which is prescribed by this clause
is : is the power in question shown or proved
to have subsisted in the House of Commons at
the relevant time ?
It would be recalled that Art. 194(3)
consists of two parts. The first part empowers
the Legislature to define by law from time to
time its powers, privileges and immunities,
whereas the second part provides that until
the legislature chooses so to define its powers,
privileges and immunities, its powers,
privileges and immunities would be those of
the House of Commons of the Parliament of
the United Kingdom and of its members and
committees, at the commencement of the
Constitution.Mr. Seervai's argument is that
the latter part of Art. 194(3) expressly provides
that all the powers which vested in the House
of Commons at the relevant time, vest in the
House. This broad claim, however, cannot be
accepted in its entirety, because there are
some powers which cannot obviously be
claimed by the House. Take the privilege of
freedom of access which is exercised by the
House of Commons as a body and through its
Speaker "to have at all times the right to
petition, counsel, or remonstrate with their
Sovereign through their chosen representative
and have a favorable construction placed on
his words was justly regarded by the
Commons as fundamental privilege". It is
hardly necessary to point out that the House
cannot claim this privilege. Similarly, the
privilege to pass acts of attainder and the
privilege of impeachment cannot be claimed by
theHouse. The House of Commons also
claims the privilege in regard to its own
Constitution. This privilege is expressed in
three ways, first by the order of new writs to
fill vacancies that arise in the Commons in the
course of a parliament; secondly, by the
trial of controverted elections; and thirdly, by
determining the qualifications of its members
in cases of doubt. This privilege again,
admittedly, cannot be claimed by the House.
Therefore, it would not be correct to say that
an powers and privileges which were possessed
by the House of Commons at the relevant time
can be claimed by the House.
Referring to conflict between two august organs of
the State and complimenting the solution adopted by
them in England, the learned Chief Justice said;
It has been common ground between the
Houses and the courts that privilege depends
on the "known laws and customs of
Parliament", and not on the ipse dixit of either
House. The question in dispute was whether
the law of Parliament was a "particular" law or
part of the common law in its wide and
extended sense, and in the former case
whether it was a superior law which overrode
the common law. Arising out of this question
another item of controversy arose between the
courts and the Parliament and that was
whether a matter of privilege should be judged
solely by the House which it concerned, even
when the rights of third parties were involved,
or whether it might in certain cases be
decided in the courts, and, if so, in what sort
of cases. The points of view adopted by the
Parliament and the courts appeared to be
irreconcilable. The courts claimed the right
to decide for themselves when it became
necessary to do so in proceedings brought
before them, questions in relation to the
existence or extent of these privileges,
whereas both the Houses claimed to be
exclusive judges of their own privileges.
Ultimately, the two points of view were
reconciled in practice and a solution
acceptable to both he parties was gradually
evolved. This solution which is marked out
by the courts is to insist on their right in
principle to decide all questions of privilege
arising in litigation before them, with certain
large exceptions in favour of parliamentary
jurisdiction. Two of these are the exclusive
jurisdiction of each House over its own internal
proceedings, and the right of either House to
commit and punish for contempt. May adds
that while it cannot be claimed that either
House has formally acquiesced in this
assumption of jurisdiction by the courts, the
absence of any conflict for over a century may
indicate a certain measure of tacit acceptance.
In other words, 'the question about the
existence and extent of privilege is generally
treated as justiciable in courts where it
becomes relevant for adjudication of any
dispute brought before the courts.
In regard to punishment for contempt, a
similar process of give and take by convention
has been in operation and gradually a
large area of agreement has, in practice, been
evolved. Theoretically, the House of Commons
claims that its admitted right to adjudicate on
breaches of privilege implies in theory the
right to determine the existence and extent of
the privileges themselves. It has never
expressly abandoned this claim. On the other
hand, the courts regard the privileges of
Parliament as part of the law of the land, of
which they are bound to take judicial
notice. They consider it their duty to decide
any question of privilege arising directly or
indirectly in a case which falls within their
jurisdiction, and to decide it according to their
own interpretationof the law. Naturally, as
a result of this dualism the decisions of the
courts are not accepted as binding by the
House in matters ofprivilege, nor the decision
of the House by the courts; and as May points
out, on the theoretical plane, the old dualism
remains unresolved. In practice, however,
"there is much more agreement on the nature
and principles of privilege than the deadlock
on the question of jurisdiction would lead one
to expect" and May describes these general
conclusions in the following words :
(1) It seems to be recognized
that, for the purpose of
adjudicating on questions of
privilege, neither House is by
itself entitled to claim the
supremacy over the ordinary
courts of justice which was
enjoyed by the undividedHigh
Court of Parliament. The
supremacy of Parliament,
consisting of the King and
the two Houses, is a legislative
supremacy whichhas nothing to
do with the privilege jurisdiction
of either House acting singly.
(2) It is admitted by both
Houses that, since neither House
can by itself add to the law,
neither House can by its own
declaration create a new privilege.
This impliesthat privilege is
objective and its extent
ascertainable, and reinforces the
doctrine that it is known by the
courts.
On the other hand, the courts
admit
(3) That the control of each
House over its internal
proceedings is absolute and
cannot be interfered with by the
courts.
(4) That a committal for
contempt by either House is in
practice within its exclusive
jurisdiction, since the facts
constituting the alleged contempt
need not be stated on the warrant
of committal.
Paying tribute to English genius, the learned Chief
Justice proceeded to observe;
It is a tribute to the remarkable English
genius for finding pragmatic ad hoc solutions
to problems which appear to be irreconcilable
by adopting the conventional method of give
and take. The result of this process has been,
in the words of May, that the House of
Commons has not for a hundred years
refused to submit its privileges to the decision
of the courts, and so, it may be said to have
given practical recognition tothe jurisdiction
of the courts over the existence and extent of
its privileges. On the other hand, the courts
have always, at any rate in the last resort,
refused to interfere in the application by the
House of any of its recognized privileges. That
broadly stated, is, the position of powers and
privileges claimed by the House of Commons.
Construing Article 212 in its proper perspective and
drawing distinction between 'irregularity' and 'illegality',
the Court stated;
Art. 212(1) makes a provision which is
relevant. It lays down that the validity of any
proceedings in the Legislature of a State shall
not be called in question on the ground of any
alleged irregularity of procedure.Art.
212(2) confers immunity on the officers and
members of the Legislature in whom powers
are vested by or under the Constitution for
regulating procedure or the conduct of
business, or for maintaining order, in the
Legislature from being subject to the
jurisdiction of any court in respect of the
exercise by him of those powers. Art. 212(1)
seems to make it possible for a citizen to call in
question in the appropriate court oflaw the
validity of any proceedings inside the
legislative chamber if his case is that the said
proceedings suffer not from mere irregularity
of procedure, but from an illegality. If the
impugned procedure is illegal and
unconstitutional, it would be open to be
scrutinised in a court of law, though such
scrutiny is prohibited if the complaint against
the procedure is no more than this that the
procedure was irregular. That again is another
indication which may afford some assistance
in construing the scope and extent of the
powers conferred on the House by Art. 194(3).
Advisory opinion of this Court in Keshav Singh thus
is of extreme importance. Though it did not deal with the
question of expulsion directly or even indirectly, it
interpreted the relevant and material provisions of the
Constitution relating to the powers, privileges and
immunities of Parliament/State Legislature keeping in
view the powers, privileges and immunities enjoyed by
the British Parliament.
Let us now consider few High Court decisions on
the point which are directly on the point.
In Raj Narain v. Atmaram Govind & Anr., AIR 1954
All 319, the petitioner who was an elected representative
of the Legislative Assembly of Uttar Pradesh wanted to
move a motion in connection with forcible removal by
police of three teachers who were on hunger-strike.
Permission was not granted by the Speaker. The
petitioner, however, continued to 'disturb' proceedings of
the House and by use of 'minimum force', he was
removed from the House. The Committee of Privileges
considered the conduct of the petitioner and resolved to
suspend him. The petitioner challenged the resolution in
the High Court of Allahabad under Article 226 of the
Constitution.
Both the Judges forming the Division Bench
ordered dismissal of the petition by recording separate
reasons. Sapru, J. conceded that withdrawal of a
member form the House even for a brief period was a
serious matter both for the member as well as for his
constituency but disciplinary or punitive action for
disorderly behaviour of a member could be taken.
Mukherji, J. took the same view. His Lordship further
held that 'the House is the sole Judge of its own
privileges'.
In Yeshwant Rao Meghawale v. Madhya Pradesh
Legislative Assembly & Ors., AIR 1967 MP 95, the
petitioner obstructed the proceedings in the House,
jumped on the dias and assaulted the Deputy Speaker.
A motion of expulsion of the petitioner was moved and
was passed. The petitioner challenged the action by
approaching the High Court under Article 226 of the
Constitution.
It was contended on behalf of the petitioner that the
House of Commons has the right to provide for its own
constitution and power to fill vacancies. And it was
because of that power that it could expel a member.
Since the Legislative Assembly of M.P. had no such right,
it could not expel a member.
The Court, however, negatived the contention. It
observed that though Indian Legislature has no right to
provide for its own composition nor for filling of vacancies
in the House, nor to try election disputes, nevertheless it
has power to expel a member for proper functioning,
protection and self-preservation. The Court noted that as
held by the Privy Council, even Colonial Legislatures have
such power.
In my opinion, by holding so, the Division Bench
has not committed any error of law nor the observations
are inconsistent with settled legal position.
I must make mention of a Full Bench decision of the
High Court of Punjab & Haryana in Hardwari Lal v.
Election Commission of India, ILR (1977) 2 P & H 269
(FB). The High Court was expressly and specifically
called upon to decide whether a State Legislature has
power to expel its member. A Bench of five Judges
exhaustively considered the question in detail. Whereas
the majority negatived such right, the minority ruled
otherwise and upheld it. The petitioners heavily relied
upon the reasons recorded and conclusions reached by
Sandhawalia, J. (majority view). The respondents, on the
other hand, strongly adverted to observations and
considerations of Narula, CJ (minority view). It would,
therefore, be appropriate if I deal with both the view-
points.
The learned Chief Justice firstly considered the
scope and applicability of clause (3) of Article 194 [similar
to clause (3) of Article 105] of the Constitution and held
that to determine whether a particular privilege falls in
the exceptional category or not is that as soon as a
particular privilege is claimed by the Legislature and is
disputed or contested, it must be inquired whether such
a privilege was available to the House of Commons on
January 26, 1950, and then to decide whether the said
privilege is or is not compatible or consistent with the
provisions of the Constitution. If it is not inconsistent
with the provisions of the Constitution, it can be claimed
by the Legislature under Article 194(3).
It was, therefore, held that "whenever it is found
that the Commons did enjoy a particular privilege, power
or immunity at the relevant time, it must be deemed to
have been written with pen and ink in clause (3) of Article
194, and it is only when a dispute arises whether in the
nature of things the particular privilege or power can
actually be expressed, claimed or enjoyed that the Court
will scrutinize the matter and without deleting the same
from the list hold that notwithstanding the power or
privilege being there it cannot be exercised, either
because it is humanly impossible to do so or because the
extension of the privilege of the Commons would
contravene some express or special provision of the
Constitution".
Regarding the main question as to the right of the
Legislature to expel a member, it was admitted that
Indian Legislature had no privilege to provide for its own
composition, but it is no ground to deny the right to the
House to expel a member as a means of punishment for
misconduct. Referring to a series of cases, it was held
that "independent of the power and privilege of the House
of Commons to constitute itself it did have and exercised
at the time of coming into force of our Constitution the
power to expel its members by way of punishment for
misconduct or for breach of privilege or for committing
contempt of the House."
The majority, on the other hand, took a contrary
view. Sandhawalia, J., considering historical development
of law as to parliamentary privileges, observed;
In the context of an unwritten
Constitution in England, the House of
Commons has undoubtedly claimed and
enjoyed the privilege of providing for and
regulating its own Constitution from the very
earliest times. This privilege in terms and in
effect implies and includes all powers to
control the composition of the House and to
determine the identity of its membership.
Unfortunately, however, having held so, the
majority adopted an incorrect approach thereafter.
Though this Court in Keshav Singh held that the privilege
enjoyed by the House of Commons in England in regard
to its constitution had been expressed in three ways;
namely;
(i)by the order of new writs to fill vacancies
that arise in the Commons in the course
of a Parliament;
(ii)by the trial of controversial elections; and
(iii)by determining the questions of its
members in cases of doubt;
the High Court (majority) added one more category
(expulsion of a member) stating that the power of
expulsion was another example (fourth category) of the
power to the House to determine its own composition.
Describing ancient English precedents as 'not only
wasteful but dangerous', the majority concluded;
"The uncanalised power of expulsion in
the House of Commons stems from its ancient
and peculiar privileges of determining its own
composition which in turn arises for long
historical reasons and because of the
unwritten Constitution in England."
(emphasis supplied)
With respect, the majority was not right in coming
to the aforesaid conclusion and I am unable to read legal
position as envisaged by Sandhawalia, J.
In K. Anbazhagan & Ors. V. Secretary, Tamil Nadu
Legislative Assembly, Madras & Ors., AIR 1988 Mad 275,
some of the members of Tamil Nadu Legislative Assembly
were expelled for burning the Constitution considering
the conduct as unworthy of members of Legislative
Assembly. The action was challenged in the High Court.
A contention similar to one raised in Yeshwant Rao
was raised that since the Tamil Nadu Legislative
Assembly had no right to provide for its constitution or
composition, it had no right to expel a member since a
right to expel a member flows from a right to provide for
composition of the House.
The Court observed that in Keshav Singh, it was
held by the Supreme Court that Indian Legislatures have
no privilege to provide for its own constitution. But it
rightly proceeded to consider the controversy by
observing that the question was whether the power of
expulsion exercised by the House of Commons was to be
'wholly and exclusively treated as a part of the privilege
in regard to its constitution'. Then considering English
authorities and various other decisions on the point; the
Court held that such power was possessed by the
Legislature and was available in appropriate cases.
In my judgment, the right to expel a member is
distinct, separate and independent of right to provide for
the due constitution or composition of the House and
even in absence of such power or prerogative, right of
expulsion is possessed by a Legislature (even a Colonial
Legislature), which in appropriate cases can be exercised.
I am also supported in taking this view from the
discussion the Constituent Assembly had and the final
decision taken.
When the provisions relating to powers, privileges
and immunities of Parliament and State Legislatures
were considered by the Constituent Assembly, conflicting
views were expressed by the Hon'ble Members. One view
was in favour of making such provisions exhaustive by
incorporating them in the Constitution. The other view,
however, was to include few specific and express rights in
the Constitution and to adopt the rest as were available
to House of Commons in England.
The relevant discussion throws light on different
views expressed by the Members of Assembly. On May
19, 1949, when the matter came up for consideration,
Shri Alladi Krishnaswami Ayyar stated;
Shri Alladi Krishnaswami Ayyar
(Madras : General) : Sir, in regard to the article
as it stands, two objections have been raised,
one based upon sentiment and the other upon
the advisability of making a reference to the
privileges of a House in another State with
which the average citizen or the members of
Parliament here may not be acquainted with.
In the first place, so far as the question of
sentiment is concerned, I might share it to
some extent, but it is also necessary to
appreciate it from the practical point of view.
It is common knowledge that the widest
privileges are exercised by members of
Parliament in England. If the privileges are
confined to the existing privileges of legislature
in India as at present constituted, the result
will be that a person cannot be punished for
contempt of the House. The actual question
arose in Calcutta as to whether a person can
be punished for contempt of the provincial
legislature or other legislatures in this country.
It has been held that there is no power to
punish for contempt any person who is guilty
of contempt of the provincial or even the
Central Legislature, whereas the Parliament in
England has the inherent right to punish for
contempt. The question arose in the
Dominions and the Colonies and it has been
held that by reason of the wide wording in the
Australian Commonwealth Act as well as in
the Canadian Act the Parliament in the both
places have powers similar to the powers
possessed by the Parliament in England and
therefore have the right to punish for
contempt. Are you going to deny to yourself
that power? That is the question.
I will deal with the second objection. If
you have the time and if you have the leisure
to formulate all the privileges in a
compendious form, it will be well and good. I
believe a Committee constituted by the
Speaker on the legislative side found very
difficult to formulate all the privileges, unless
they went in detail into the whole working of
parliamentary institution in England and the
time was not sufficient before the legislature
for that purpose and accordingly the
Committee was not able to give any effective
advice to the Speaker in regard to this matter.
I speak subject to correction because I was
present at one stage and was not present at a
later stage. Under these circumstances I
submit there is absolutely to question of infra
dig. We are having the English language. We
are having our Constitution in the English
language side by side with Hindi for the time
being. Why object only to reference to the
privileges in England?
The other point is that there is nothing to
prevent the Parliament from setting up the
proper machinery for formulating privileges.
The article leaves wide scope for it. "In other
respects, the privileges and immunities of
members of the Houses shall be such as may
from time to time be defined by Parliament by
law and, until so defined, shall be such as are
enjoyed by the members of the House of
Commons of the Parliament of the United
Kingdom at the commencement of this
Constitution". That is all what the article says.
It does not in any way fetter your discretion.
You may enlarge the privileges, you may
curtail the privileges, you may have a different
kind of privileges. You may start on your own
journey without reference to the Parliament of
Great Britain. There is nothing to fetter the
discretion of the future Parliament of India.
Only as a temporary measure, the privileges of
the House of Commons are made applicable to
this House. Far from it being infra dig, it
subordinates the reference to privileges
obtained by the members of Parliament in
England to the privileges which may be
conferred by this Parliament by its own
enactments. Therefore there is no infra dig in
the wording of class (3).
This practice has been followed in
Australia, in Canada and in other Dominations
with advantage and it has secured complete
freedom of speech and also the omnipotence of
the House in every respect. Therefore we need
not fight shy of borrowing to this extent, when
we are borrowing the English language and
when we are using constitutional expressions
which are common to England. You are saying
that it will be the same as those enjoyed by the
members of the House of Commons. It is far
from that. Today the Parliament of the United
Kingdom is exercising sway over Great Britain,
over the Dominions and others. To say that
you are as good as Great Britain is not a badge
of inferiority but an assertion of your own self-
respect and also of the omnipotence of your
Parliament. Therefore, I submit, Sir, there is
absolutely no force in the objection made as to
the reference to the British Parliament. Under
these circumstances, far from this article being
framed in a spirit of servility or slavery or
subjection to Britain, it is framed in a spirit of
self-assertion and an assertion that our
country and our Parliament are as great as the
Parliament of Great Britain.
It is thus clear that when draft Article 85 (Present
Article 105) was considered, different view-points were
before the House. It was also aware of various
Constitutions, particularly, Constitutions of Canada and
Australia. The Members expressed their views, made
suggestions and sought amendments and finally, the
draft Article 85 was approved as amended.
Likewise, when draft Article 169 (Present Article
194) came up before the House on June 3, 1949, again,
the matter was discussed at length.
I would like to refer to in particular the
considerations weighed with the House in the speech of
Hon'ble the President, Dr. B.R. Ambedkar, who said;
The privileges of Parliament extend, for
instance, to the rights of Parliament as against
the public. Secondly, they also extend to rights
as against the individual members. For
instance, under the House of Commons' power
and privileges it is open to Parliament to
convict any citizen for contempt of Parliament
and when such privilege is exercised the
jurisdiction of the court is ousted. That is an
important privilege. Then again, it is open to
Parliament to take action against any individual
member of Parliament for anything that has
been done by him which brings Parliament into
disgrace. These are very grave matters-e.g., to
commit to prison. the right to lack up a citizen
for what parliament regards as contempt of
itself is not an easy matter to define. Nor is it
easy to say what are the acts and deeds of
individual members which bring Parliament
into disrepute. (emphasis supplied)
He further stated;
Let me proceed. It is not easy, as I said,
to define what are the acts and deeds which
may be deemed to bring Parliament into
disgrace. That would require a considerable
amount of discussion and examination. That is
one reason why we did not think of
enumerating, these privileges and immunities.
But there is not the slightest doubt in my
mind and I am sure also in the mind of the
Drafting Committee that Parliament must have
certain privileges, when that Parliament would
be so much exposed to calumny, to unjustified
criticism that the parliamentary institution in
this country might be brought down to utter
contempt and may lose all the respect which
parliamentary institutions should have from
the citizens for whose benefit they operate.
I have referred to one difficulty why it has
not been possible to categorise. Now I should
mention some other difficulties which we have
felt.
It seems to me, if the proposition was
accepted that the Act itself should enumerate
the privileges of Parliament, we would have to
follow three courses. One is to adopt them in
the Constitution, namely to set out in detail
the privileges and immunities of Parliament
and its members. I have very carefully gone
over May's Parliamentary Practice which is the
source book of knowledge with regard to the
immunities and privileges of Parliament. I have
gone over the index of May's Parliamentary
Practice and I have noticed that practically 8
or 9 columns of the index are devoted to the
privileges and immunities of Parliament. So
that if you were to enact a complete code of the
privileges and immunities of Parliament based
upon what May has to say on this subject, I
have not the least doubt in my mind that we
will have to add not less than twenty or
twenty-five pages relating to immunities and
privileges of Parliament. I do not know whether
the Members of this House would like to have
such a large categorical statement of privileges
and immunities of Parliament extending over
twenty or twenty-five pages. That I think is one
reason why we did not adopt that course.
The other course is to say, as has been
said in many places in the Constitution, that
Parliament may make provision with regard to
a particular matter and until Parliament
makes that provision the existing position
would stand. That is the second course which
we could have adopted. We could have said
that Parliament may define the privileges and
immunities of the members and of the body
itself, and until that happens the privileges
existing on the date on which the Constitution
comes into existence shall continue to operate.
But unfortunately for us, as honourable
Members will know, the 1935 Act conferred no
privileges and no immunities on Parliament
and its members. All that it provided for was a
single provision that there shall be freedom of
speech and no member shall be prosecuted for
anything said in the debate inside Parliament.
Consequently that course was not open,
because the existing Parliament or Legislative
Assembly possess no privilege and no
immunity. Therefore we could not resort to
that course.
The third course open to us was the one
which we have followed, namely, that the
privileges of Parliament shall be the privileges
of the House of Commons. It seems to me that
except of the sentimental objection to the
reference to the House of Commons I cannot
see that there is any substance in the
argument that has been advanced against the
course adopted by the Drafting Committee. I
therefore suggest that the article has adopted
the only possible way of doing it and there is
no other alternative way open to us. That being
so, I suggest that this article be adopted in the
way in which we have drafted it.
Thereafter the House decided to approve the
provision relating to powers, privileges and immunities of
State Legislatures.
The aforesaid discussion clearly and unequivocally
indicates that the Members of the Constitution wanted
Parliament (and State Legislatures) to retain power and
privileges to take appropriate action against any
individual member for 'anything that has been done by
him' which may bring Parliament or Legislative Assembly
into 'disgrace'. In my opinion, therefore, it cannot be said
that the Founding Fathers of the Constitution were not
aware or never intended to deal with individual misdeeds
of members and no action can be taken by the
Legislature under Article 105 or 194 of the Constitution.
An authority on the 'Constitutional Law of India',
(H.M. Seervai) pithily puts this principle in one sentence;
"It is clear, therefore, that the privileges of
the British House of Commons were not
conferred on the Indian Legislatures in a fit of
absent mindedness". (emphasis supplied)
(Constitutional Law of India; Third Edn.; Vol. II;
para 20-36)
ORDER OF EXPULSION AND JUDICIAL REVIEW
The history of relationship between Parliament and
Courts at Westminister is also marked with conflict and
controversy.
Sir Erskine May rightly comments; "After some
three and a half centuries, the boundary between the
competence of the law courts and the jurisdiction of the
either House in matters of privilege is still not entirely
determined".
According to the learned author, the earliest
conflicts between Parliament and the Courts were about
the relationship between the lex parliamenti and the
common law of England. Both Houses argued that under
the former, they alone were the judges of the extent and
application of their own privileges, not examinable by any
court or subject to any appeal. The courts, on the other
hand, professed judicial ignorance of the lex parliamenti.
After some time, however, they recognized it, but as a
part of the Law of England and, therefore, wholly within
the judicial notice.
In the middle of the nineteenth century, the conflict,
to the large extent, had been resolved. Out of both the
claims, (i) whether a privilege existed; and (ii) whether it
had been breached, Parliament yielded the first to the
courts. In turn, courts recognized right of the House to
the second.
The question was also considered by Anson ('The
Law and Custom of the Constitution', Fifth Edition; Vol. I;
pp. 190-99). The learned author considered the causes
of conflict between Houses and Courts. He noted that
the House had asserted that 'it is the sole judge of the
extent of its privileges' and the Court had no jurisdiction
in the matter. Courts, on the other hand, took the stand
that 'when privilege conflicts with rights which they have
it in charge of maintain, they will consider whether the
alleged privilege is authentic, and whether it governs the
case before them'.
Then referring to three leading cases, (i)Ashby v.
White, (1704) 14 St Tr 695; (ii) Stockdale v. Hansard,
(1839) 9 Ad & E 1 : 112 ER 1112; and (iii)Bradlaugh v.
Gossett, (1884) 12 QBD 271 : 53 LJQB 200the author
concluded;
On the whole, it seems now to be clearly
settled that the Courts will not be deterred
from upholding private rights by the fact that
questions of parliamentary privilege are
involved in their maintenance; and that, except
as regards the internal regulation of its
proceedings by the House, Courts of Law will
not hesitate to inquire into alleged privilege, as
they would into custom, and determine its
extent and application.
In Halsbury's Laws of England, (4th Edition,
Reissue, Vol. 34; pp. 553-54; paras 1004-05), it has been
stated;
1004. The position of the courts of law. Each
House of Parliament has traditionally claimed
to be the sole and exclusive judge of its own
privilege and of the extent of that privilege.
The courts of law accept the existence of
privileges essential to the discharge of the
functions of the two Houses. In 1939, all the
privileges required for the energetic discharge
of the Commons' trust were conceded by the
court without a murmur or doubt; and over
150 years later, the Privy Council confirmed
that the courts will not allow any challenge to
be made to what is said or done within the
walls of Parliament in performance of its
legislative functions and protection of its
established privileges. On the other hand, the
courts take the view that it is for them to
determine whether a parliamentary claim to
privilege in a particular case falls within that
area where what is claimed is necessary to the
discharge of parliamentary functions or
internal to one or other of the Houses, in
which case parliamentary jurisdiction is
exclusive, or whether it falls outside that area,
especially if the rights of third parties are
involved, where the courts would expect to
form their own judgments.
1005.Limits of agreement regarding
jurisdiction. In spite of the dualism of
jurisdiction between the Houses of Parliament
and the courts of law, the current measure of
agreement on the respective spheres of the two
Houses and the courts has, since the mid-
nineteenth century, prevented the direct
conflicts of earlier years.
Although the Houses have never directly
admitted the claim of the courts of law to
adjudicate on matters of privilege, they appear
to recognize that neither House is by itself
entitled to claim the supremacy which was
enjoyed by the undivided High Court of
Parliament.
For their part the courts of law
acknowledge that the control of each House
over its own proceedings is absolute and not
subject to judicial jurisdiction; and the courts
will not interfere with the interpretation of a
statute by either House so far as the
proceedings of the House are concerned.
Neither will the courts inquire into the reasons
for which a person has been adjudged guilty of
contempt and committed by either House,
when the order or warrant upon which he has
been arrested does not state the causes of his
arrest; for in such cases it is presumed that
the order or warrant has been duly issued
unless the contrary appears upon the face of
it.
Holdsworth, in 'A History of English Law' (Vol. I; pp.
393-94) rightly observed;
There are two maxims or principles which
govern this subject. The first tells us that
"Privilege of Parliament is part of the law of the
land;" the second that "Each House is the
judge of its own privileges." Now at first sight
it may seem that these maxims are
contradictory. If privilege of Parliament is part
of the law of the land its meaning and extent
must be interpreted by the courts, just like
any other part of the law; and therefore neither
House can add to its privileges by its own
resolution, any more than it can add to any
other part of the law by such a resolution. On
the other hand if it is true that each House is
the sole judge of its own privileges, it might
seem that each House was the sole judge as to
whether or no it had got a privilege, and so
could add to its privileges by its own
resolution. This apparent contradiction is
solved if the proper application of these two
maxims is attended to. The first maxim
applies to cases like Ashby v. White; (1704) 14
St Tr 695 and Stockdale v. Hansard; (1839) 9
Ad & E 1 : 112 ER 1112 in which the question
at issue was the existence of a privilege
claimed by the House. This is a matter of law
which the courts must decide, without paying
any attention to a resolution of the House on
the subject. The second maxim applies to
cases like that of the Sheriff of Middlesex;
(1840) 11 Ad & E 273 : 113 ER 419 and
Bradlaugh v. Gosset; (1884) 12 QBD 271 : 53
LJQB 200, in which an attempt was made to
question, not the existence, but the mode of
user of an undoubted privilege. On this matter
the courts will not interfere because each
House is the sole judge of the question
whether, when, or how it will use one of its
undoubted privileges.
We have a written Constitution which confers power
of judicial review on this Court and on all High Courts.
In exercising power and discharging duty assigned by the
Constitution, this Court has to play the role of a 'sentinel
on the qui vive' and it is the solemn duty of this Court to
protect the fundamental rights guaranteed by Part III of
the Constitution zealously and vigilantly.
It may be stated that initially it was contended by
the respondents that this Court has no power to consider
a complaint against any action taken by Parliament and
no such complaint can ever be entertained by the Court.
Mr. Gopal Subramaniam, appearing for the Attorney
General, however, at a later stage conceded (and I may
say, rightly) the jurisdiction of this Court to consider
such complaint, but submitted that the Court must
always keep in mind the fact that the power has been
exercised by a co-ordinate organ of the State which has
the jurisdiction to regulate its own proceedings within the
four walls of the House. Unless, therefore, this Court is
convinced that the action of the House is
unconstitutional or wholly unlawful, it may not exercise
its extraordinary jurisdiction by re-appreciating the
evidence and material before Parliament and substitute
its own conclusions for the conclusions arrived at by the
House.
In my opinion, the submission is well-founded.
This Court cannot be oblivious or unmindful of the fact
that the Legislature is one of three organs of the State
and is exercising powers under the same Constitution
under which this Court is exercising the power of judicial
review. It is, therefore, the duty of this Court to ensure
that there is no abuse or misuse of power by the
Legislature without overlooking another equally
important consideration that the Court is not a superior
organ or an appellate forum over the other constitutional
functionary. This Court, therefore, should exercise its
power of judicial review with utmost care, caution and
circumspection.
The principle has been succinctly stated by Sir John
Donaldson, M.R. in R. v. Her Majesty's Treasury, ex parte
Smedley, 1985 QB 657, 666 thus;
It behoves the courts to be ever
sensitive to the paramount need to refrain
from trespassing on the province of Parliament
or, so far as this can be avoided, even
appearing to do so. (emphasis supplied)
INDIAN PARLIAMENT HAS NO DUAL CAPACITY
It was also urged that Indian Parliament is one of
the three components of the State and it does not have a
'dual capacity' like the British Parliament which is not
only 'Parliament', i.e. legislative body, pure and simple,
but also 'the High Court of Parliament'. Since Indian
Parliament is not a 'Court of Record', it has no power,
authority or jurisdiction to award or inflict punishment
for Contempt of Court nor it can be contended that such
action is beyond judicial scrutiny.
In this connection, I may only observe that in
Searchlight as well as in Keshav Singh, it has been
observed that there is no doubt that Parliament/State
Legislature has power to punish for contempt, which has
been reiterated in other cases also, for instance, in State
of Karnataka v. Union of India, (1977) 4 SCC 608, and in
P. V. Narasimha Rao v. State, (1998) 4 SCC 626. But what
has been held is that such decision of Parliament/State
Legislature is not 'final and conclusive'. This Court in all
earlier cases held that in view of power of judicial review
under Articles 32 and 226 of the Constitution, the
Supreme Court and High Courts have jurisdiction to
decide legality or otherwise of the action taken by State-
authorities and that power cannot be taken away from
judiciary. There lies the distinction between British
Parliament and Indian Parliament. Since British
Parliament is also 'the High Court of Parliament', the
action taken or decision rendered by it is not open to
challenge in any court of law. This, in my opinion, is
based on the doctrine that there cannot be two parallel
courts, i.e. Crown's Court and also a Court of Parliament
('the High Court of Parliament') exercising judicial power
in respect of one and the same jurisdiction. India is a
democratic and republican State having a written
Constitution which is supreme and no organ of the State
(Legislature, Executive or Judiciary) can claim
sovereignty or supremacy over the other. Under the said
Constitution, power of judicial review has been conferred
on higher judiciary (Supreme Court and High Courts).
The said power is held to be one of the 'basic features' of
the Constitution and, as such, it cannot be taken away
by Parliament, even by an amendment in the
Constitution. [Vide Sambamurthy v. State of A.P., (1987)
1 SCC 362 : AIR 1987 SC 663; Kesavananda Bharti v.
State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461;
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 :
AIR 1975 SC 2299; Minerva Mills Ltd. V. Union of India,
(1980) 3 SCC 625 : AIR 1980 SC 1789; L. Chandra
Kumar v. Union of India, (1987) 1 SCC 124 : (1987) 1
SCC 124 : (1987) 1 SCR 435, Kihoto Hollohon v.
Zachilhu, 1992 Supp (2) SCC 651 : AIR 1993 SC 412].
It has, therefore, been held in several cases that an
action of Parliament/State Legislature cannot claim 'total
immunity' from judicial review. In fact, this argument
had been put forward in Keshav Singh which was
negatived by this Court. It was opined that an aggrieved
party may invoke the jurisdiction of the High Court under
Article 226 or of the Supreme Court under Article 32 of
the Constitution. That, however, does not mean that
while exercising extraordinary jurisdiction under the
Constitution, the powers of the courts are absolute,
unlimited or unfettered. The Constitution which
conferred power of judicial review on the Supreme Court
and High Courts, with the same pen and ink provided
that the validity of proceedings in Parliament cannot be
called in question on the ground of 'irregularity in
procedure'. It is, therefore, the duty of this Court to give
effect to the said provision and keeping in view the
limitation, exercise the power of judicial review.
Moreover, in the instant cases, the Court is called
upon to answer a limited question whether Parliament
can expel a member. As I have already discussed in
earlier part of this judgment, even a Colonial Legislature
having limited privileges possesses the power to expel a
member if his conduct is found to be not befitting a
member of Legislature. If it is so, in my opinion, it goes
without saying that Indian Parliament, which has
undoubtedly much more powers than a Colonial
Legislature, can take such action and it cannot be
successfully contended that Parliament does not possess
the power to expel a member. I am, therefore, unable to
uphold the argument of the petitioners.
DISQUALIFICATION AND EXPULSION
The petitioners also submitted that the law relating
to disqualification and vacation of seats has been laid
down in Articles 101 to 104 (and 190-93) read with
Schedule X to the Constitution and of the Representation
of the People Act, 1951. Those provisions are 'full and
complete'. In other words, they are in the nature of
'complete Code' as to disqualification of membership and
vacation of seats covering the field in its entirety. No
power of expulsion de hors the above provisions exists or
is available to any court or authority including
Parliament. The action of Parliament, hence, is without
jurisdiction and is liable to be set aside.
I am unable to uphold the contention. As already
discussed earlier, every legislative bodyColonial or
Supremepossesses power to regulate its proceedings,
power of self-protection, self-preservation and
maintenance of discipline. It is totally different and
distinct from the power to provide the constitution or
composition which undoubtedly not possessed by Indian
Parliament. But every legislative body has power to
regulate its proceedings and observance of discipline by
its members. In exercise of that power, it can suspend a
member as also expel him, if the circumstances warrant
or call for such action. It has nothing to do with
disqualification and/or vacation of seat. In fact, a
question of expulsion arises when a member is not
disqualified, his seat has not become vacant and but for
such expulsion, he is entitled to act as a member of
Parliament.
PARLIAMENT HAS NO CARTE BLANCHE POWER
The counsel for the petitioners submitted that every
power has its limitations and power conferred on
Parliament is not an exception to this rule. It has,
therefore, no absolute right to take any action or make
any order it likes. It was stated that this Court has
accepted this principle in several cases by observing that
absolute power is possible 'only in the moon' [vide
Ahmedabad St. Xavier's College Society & Anr. V. State of
Gujarat & Anr., [(1975) 1 SCR 173 : (1974) 1 SCC 717 :
AIR 1974 SC 1389]. I admit my inability to express any
opinion on the larger issue. But I have no doubt and I
hold that Parliaemnt, like the other organs of the State, is
subject to the provisions of the Constitution and is
expected, nay, bound to exercise its powers in
consonance with the provisions of the Constitution. But I
am unable to hold that the power to expel a member is a
carte blanche in nature and Palriament has no authority
to expel any member. In my view, Parliament can take
appropriate action against erring members by imposing
appropriate punishments or penalties and expulsion is
one of them. I may, however, hasten to add that under
our Constitution, every action of every authority is
subject to law as nobody is above law. Parliament is not
an exception to this 'universal' rule. It is, therefore, open
to an aggrieved party to approach this Court raising
grievance against the action of Parliament and if the
Court is satisfied within the limited parameters of judicial
review that the action is unwarranted, unlawful or
unconstitutional, it can set aside the action. But it is not
because Parliament has no power to expel a member but
the action was not found to be in consonance with law.
PROCEDURAL IRREGULARITY : EFFECT
It was then contended that the impugned actions
taken by Lok Sabha and Rajya Sabha are illegal and
unconstitutional. It was stated that the immunity
granted by clause (1) of Article 122 of the Constitution
('Courts not to inquire into proceedings of Parliament')
has been made expressly limited to 'irregularity of
procedure' and not to substantive illegality or
unconstitutionality. If the action taken or order passed is
ex facie illegal, unlawful or unconstitutional, Parliament
cannot take shelter under Article 122 and prevent
judicial scrutiny thereof. Neither ad hoc Committees have
been contemplated by the Constitution nor such
committees have power to inquire into conduct or
misconduct of Members of Parliament. All proceedings,
therefore, have no legal foundation. They were without
jurisdiction or lawful basis and are liable to be ignored
altogether.
In this connection, the attention of the Court was
invited to Constituent Assembly Debates when draft
Article 101 (present Article 122) was discussed. Mr.
Kamath suggested an amendment in clause (1) of Article
101 by inserting the words "in any court" after the words
"called in question".
Dealing with the amendment and jurisdiction of
Courts, Dr. B.R. Ambedkar stated (CAD : Vol.VIII; pp.
199-201);
With regard to the amendment of Mr.
Kamath, I do not think it necessary, because
where can the proceedings of Parliament be
questioned in a legal manner except in a Court?
Therefore, the only place where the
proceedings of Parliament can be questioned in
a legal manner and legal sanction obtained is
the Court. (emphasis supplied)
Reference was also made to Pandit M.S.M. Sharma v.
Shree Krishna Sinha & Ors. (Pandit Sharma II); (1961) 1
SCR 96 : AIR 1960 SC 1186, wherein a Bench of eight
Hon'ble Judges of this Court held that "the validity of the
proceedings inside the Legislature of a State cannot be
called in question on the allegation that the procedure
laid down by the law had not been strictly followed".
In Keshav Singh also, this Court reiterated the
above proposition of law and stated;
Art. 212(1) makes a provision which is
relevant. It lays down that the validity of any
proceedings in the Legislature of a State
shall not be called inquestion on the ground
of any alleged irregularity of procedure. Art.
212(2) confers immunity on the officers and
members of the Legislature in whom powers
are vested by or under the Constitution for
regulating procedure or the conduct of
business, or for maintaining order, in the
Legislature from being subject to the
jurisdiction of any court in respect of the
exercise by him of those powers. Art. 212(1)
seems to make it possible for a citizen to call in
question in the appropriate court of law the
validity of any proceedings inside the
legislative chamber if his case is that the said
proceedings suffer not from mere irregularity
of procedure,but from an illegality. If the
impugned procedure is illegal and
unconstitutional, it would be open to be
scrutinised in a court of law, though such
scrutiny is prohibited if the complaint against
the procedure is no more than this that the
procedure was irregular. (emphasis supplied)
[See also Kihoto Hollohan v. Zachillhu & Ors., 1992
Supp (2) SCC 651, 711].
The learned counsel for the respondents have, in my
opinion, rightly not disputed the above statement of law
made in the larger Bench decisions of this Court. They,
however, stated that a Committee was appointed by
Parliament, which went into the allegations against the
petitioners. Adequate opportunity had been afforded to
the members and after considering the relevant material
placed before it, a decision was taken holding them
guilty. The said action was approved by the House and as
such, the law laid down in the above decisions has no
application to the fact-situation and no grievance can be
made against it.
In my view, the submission of the respondents
deserves acceptance. Taking into account serious
allegations against some of the members of the House,
Parliament decided to inquire into correctness or
otherwise of the charges by constituting an 'Inquiry
Committee'. The members were asked to offer their
explanation and considering the evidence and material
on record, the Committee appointed by Parliament
decided the matter. It, therefore, cannot be said that the
case is covered by exceptional part of clause (1) of Article
122. It cannot be overlooked that this Court is exercising
power of 'judicial review', which by its nature limited to
serious infirmities of law or patent illegalities. It cannot,
therefore, enter into sufficiency of material before the
authority nor can substitute its own opinion/finding/
decision for the opinion/finding/decision arrived at by
such authority. Hence, even if there is any irregularity in
adopting the procedure or in appreciating evidence by the
Committee or in approving the decision by Parliament, it
squarely falls under the 'protective umbrella' of Article
122(1) of the Constitution and this Court cannot interfere
with the decision in view of the constitutional protection
granted by the said provision.
Neither the Committee appointed by Parliament can
be said to be a 'Court' stricto sensu, nor it is bound by
technical rules of evidence or procedure. It is more in the
nature of 'fact-finding' inquiry. Since the dignity,
decorum and credibility of Parliament was at stake, the
Committee was appointed which was required to act with
a view to restore public faith, confidence and honour in
this august body without being inhibited by procedural
impediments.
In this connection, it is profitable to refer to Mudgal.
In that case also, a Committee was appointed to inquire
into charges leveled against a member of Parliament.
Certain directives were issued to the Committee.
Directive No.2 issued by the Speaker was relevant and
read thus;
"The Committee on the Conduct of a Member
that has been constituted is a Court of Honour
and not a Court of Law in the strict sense of the
term. It is therefore not bound by technical
rules. It has to mould its procedure so as to
satisfy the ends of justice and ascertain the
true facts of the case. In Courts of Law,
excessive cross-examination eventually turns
into a battle of wits and that should not be the
atmosphere of a Court of Honour. Here the
effort should be to simplify the procedure and
to lay down clear rules which ensure
ascertainment of Truth, fairplay and justice to
all concerned. I am, therefore, of opinion that
normally the questions should be put by the
Chairman and the Members but that does not
mean that the counsel appearing in the case is
debarred from putting any questions
whatsoever. It is open to the Committee in the
light of particular circumstances, of which they
alone are the best judges, to permit the
counsel to put questions to a witness with the
permission of the Chairman. I feel that this
should meet the requirements of the present
case."
(emphasis supplied)
OBSERVANCE OF NATURAL JUSTICE
It was also urged that the Committee had not given
sufficient opportunity to the petitioners to defend them
and had not complied with the principles of natural
justice and fair play. It was submitted that the doctrine of
natural justice is not merely a matter of procedure but of
substance and any action taken in contravention of
natural justice is violative of fundamental rights
guaranteed by Articles 14, 19 and 21 of the Constitution.
Reference in this connection was made to Maneka
Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC
597; Kihoto Holohan and other decisions.
So far as principle of law is concerned, it is well-
settled and cannot be disputed and is not challenged. In
my opinion, however, in the facts of the case, it cannot
successfully be contended that there is breach or non-
observance of natural justice by the Committee. Reading
of the Reports makes it clear that adequate opportunity
had been afforded to the petitioners and thereafter the
action was taken. Notices were issued to the members,
CDs were supplied to them, evidence of witnesses was
recorded, defence version was considered and 'findings
and conclusions' were reached.
So far as the Committee constituted by the Lok
Sabha is concerned, it stated;
IV. Findings and Conclusions
32. The Committee viewed the VCDs
comprising the relevant video footage aired on
the 'Aaj Tak' TV Channel on 12 December,
2005, perused the transcripts thereof,
considered the written statements submitted
by each of the said ten members and their oral
evidence and also the oral evidence of Shri
Aniruddha Bahal, Kumar Badal and Ms.
Sushasini Raj of Cobrapost.Com who
conducted the 'Operation Duryodhan'.
33. The Committee note that the
concerned representatives of the Portal
Cobrapost.Com namely Shri Aniruddha Bahal,
Ms. Suhasini Raj and Shri Kumar Badal
approached the members posing as
representatives of a fictitious company,
through a number of middlemen, some of
whom were also working as Private
Secretaries/Personal Assistants of the
members concerned. They requested the
members to raise questions in Lok Sabha and
offered them money as a consideration thereof.
Money was accepted by the members directly
and also through their Private Secretaries.
They deposed on oath that in the money
sequences shown on TV Channel Aaj Tak there
was no misrepresentation. They have also
given to the Committee the raw footage
covering the situation before and after the
scene in question. While the Aaj Tak clippings
have gone through video cleaning and sound
enhancement, corresponding thereto are
extended versions of unedited raw footage of
the tapes to make it apparent that nothing had
been misrepresented. Besides this Shri
Aniruddha Bahal also submitted the "Original
tapes of money acceptance of whatever length
the incident it may be". There are 20-25 tapes
and the total footage pertains to money
acceptance. Each tape is a complete tape
showing the whole incident. In the course of
her evidence Ms. Suhasini Raj has given the
details of the money given to the MPs directly
as also through the middlemen.
34. As against this evidence are the
statements of all the said ten members. The
Committee note that all the members have
denied the allegations leveled against them.
The common strain in their testimony is that
the clippings are morphed, out of context and
a result of 'cut and paste'. The clippings of a
few minutes, they averred, do not present full
picture and they needed full tapes including
the preceding and succeeding scenes to prove
what they termed as the falsehood thereof.
They claimed that the entire exercise was
aimed to trap them and lower the prestige of
the Parliament.
35. The Committee have given serious
consideration to the requests made by the said
members for being provided the full footage of
video recordings, all the audio tapes and their
request for extension of time and being allowed
to be represented through their counsels.
In this context the Committee would like
to bring it on record that all the ten members
while deposing before the Committee were
asked whether they would like to view the
relevant video footage so that they could point
out the discrepancies therein if any. All the
members, refused to view the relevant video
footage. The Committee, therefore, feel that the
requests by the members for unedited and
entire video footage would only lead to delaying
the consideration of the matter and serve no
useful purpose.
36. The Committee having given in-depth
consideration to the evidence and statements
of the representatives of Cobrapost.com and
the members, are of the view that the evidence
against the members is incriminating. The
Committee note that the Cobrapost.com
representatives gave their statement on oath
and would be aware of the consequences of
making any false or incorrect statement. They
have also supplied the unedited copies of
original video situations where money changed
hands. Transcripts of the said videos have also
been supplied. Had the Cobrapost.com been
reluctant in supplying the original unedited
video tapes there could have been scope for
some adverse inference about the authenticity
of the "money sequences" as telecast by Aaj
Tak. But that is not so.
37. The Committee are also of the view
that the plea put forth by the said ten
members that the video footages are
doctored/morphed/edited has no merit. If the
members had accepted the offer of the
Committee to view the relevant footage and
pointed out the interpolated portions in the
tape, there would have been justification for
allowing their plea for more time for
examining the whole tapes. Having seen the
unedited raw footage of the Cobrapost.com
pertaining to some of the members, the
Committee have no valid reason to doubt the
authenticity of the video footages.
38. In view of the totality of the facts and
circumstances of the case, the Committee are
of the opinion that the allegations of accepting
money by the said ten members have been
established. The Committee further note that it
is difficult to escape the conclusion that
accepting money had a direct connection with
the work in Parliament.
39. The Committee feel that such conduct
of the said members was unbecoming of
members of Parliament and also unethical.
The Committee are, therefore, of the view that
their conduct calls for strict action.
40. The Committee feel that stern action
also needs to be taken against the middlemen,
touts and persons masquerading as Private
Secretaries of members since they are
primarily responsible for inducing members to
indulge in such activities.
41. The Committee note that in the case
of misconduct or contempts committed by its
members, the House can impose these
punishments: admonition, reprimand,
withdrawal from the House, suspension from
the service of the House, imprisonment, and
expulsion from the House.
The Committee, according to me, rightly made the
following observations;
V. Observations
42. The Committee feel that credibility of
a democratic institution like Parliament and
impeccable integrity of its members are
imperative for the success of any democracy.
In order to maintain the highest traditions in
parliamentary life, members of Parliament are
expected to observe a certain standard of
conduct, both inside the House as well as
outside it. It is well recognised that conduct of
members should not be contrary to the Rules
or derogatory to the dignity of the House or in
any way inconsistent with the standards which
Parliament is entitled to expect of its members.
43. The Committee wish to emphasise
that ensuring probity and standards in public
life is sine qua non for carrying credibility with
the public apart from its own intrinsic
importance. The waning confidence of the
people in their elected representatives can be
restored through prompt action alone.
Continuous fight against corruption is
necessary for preserving the dignity of the
country. The beginning has to be made with
holders of high public offices as the system is,
and ought to be, based on morality. When the
Committee say so, they are also aware of and
wish to put on record that a large number of
leaders spend their life time in self-less service
to the public.
44. The Committee find it pertinent to
note the following observations made by the
Committee of Privileges of Eleventh Lok Sabha
in their Report on 'Ethics, Standards in Public
Life, Privileges, Facilities to members and
related matters':
"Voicing the constituents' concerns on
the floor of the House is the primary
parliamentary duty of an elected
representative. Any attempt to influence
members by improper means in their
parliamentary conduct is a breach of
privilege. Thus, offering to a member a
bribe or payment to influence him in his
conduct as a member, or any fee or
reward in connection with the promotion
of or opposition to, any Bill, resolution,
matter or things submitted or intended to
be submitted to the House or any
Committee thereof, should be treated as a
breach of Code of Conduct. Further, any
offer of money, whether for payment to an
association to which a member belongs or
to a charity, conditional on the member
taking up a case or bringing it to a
successful conclusion, is objectionable.
Offer of money or other advantage to a
member in order to induce him to take up
an issue with a Minister may also
constitute a breach of Code. Similarly,
acceptance of inducements and
gratification by members for putting
questions in the House or for promotion
of or opposition to any Bill, resolution or
matters submitted to the House or any
Committee thereof involves the privileges
and contempt proceedings.
The privilege implications apart, the
Committee is constrained to observe that
such attempts and acts are basically
unethical in nature."
45. The Committee are, therefore, deeply
distressed over acceptance of money by
members for raising parliamentary questions in
the House, because it is by such actions that
the credibility of Parliament as an institution
and a pillar of our democracy is eroded.
(emphasis supplied)
The Committee accordingly recommended (by
majority of 4 : 1) expulsion of all the ten members from
the membership of Lok Sabha.
The recommendation was accepted by the House
and consequential notification was issued on December
23, 2005 expelling all the members from Lok Sabha with
effect from afternoon of December 23, 2005.
So far as Rajya Sabha is concerned, the Committee
on Ethics recorded a similar finding and observed that it
was convinced that the member had accepted money for
tabling questions in Rajya Sabha and the pleas raised by
him in defence were not well-founded.
The Committee rightly stated;
Parliamentary functioning is the very
basis of our democratic structure upon which
the whole constitutional system rests.
Anything, therefore, that brings the institution
of parliament into disrepute is extremely
unfortunate because it erodes public
confidence in the credibility of the institution
and thereby weaken the grand edifice of our
democratic polity.
The Committee then observed;
The Committee has applied its mind to
the whole unfortunate incident, gave full
opportunity to the Member concerned to make
submissions in his defence and has also
closely examined witnesses from
Cobrapost.Com and Aaj Tak. The Committee
has also viewed the video tapes and heard the
audio transcripts more than once. After taking
all factors into consideration, the
overwhelming and clinching evidence that the
member has, in fact, contravened para 5 of the
code of conduct for members of the Rajya
Sabha and having considered the whole matter
in depth, the committee, with great sadness,
has come to the conclusion that the member
has acted in a manner which has seriously
impaired the dignity of the house and brought
the whole institution of parliamentary
democracy into disrepute. The Committee
therefore recommend that Dr. Chhattrapal
Singh Lodha be expelled from the membership
of the House as his conduct is derogatory to
the dignity of the House and inconsistent with
the code of conduct which has been adopted
by the House.
The Committee thus recommended expulsion of Dr.
Lodha. One member of the Committee suggested
(clarifying that it was not a 'dissent note'), to seek opinion
of this Court under Article 143(1) of the Constitution.
The House agreed with the recommendation and
expelled Dr. Lodha. A notification was issued on
December 23, 2005 notifying that Dr. Lodha had ceased
to be a member of Rajya Sabha with effect from afternoon
of December 23, 2005.
ISSUE : WHETHER PRE-JUDGED
One of the grievances of the petitioners is that the
issue had already been pre-judged even before a
Committee was appointed by Parliament. In support of
the said complaint, the counsel drew the attention of the
Court to a statement by the Hon'ble Speaker of Lok
Sabha on December 12, 2005;
"No body would be spared".
An attempt was made that the Hon'ble Speaker,
even before the constitution of Committee had
proclaimed that the petitioners would not be spared.
Appointment of Committee, consideration of allegations
and recording of findings were, therefore, in the nature of
an 'empty formality' to 'approve' the tentative decision
taken by the Hon'ble Speaker and for that reason also,
the action is liable to be interfered with by this Court.
In my opinion, the contention has no force. The
petitioners are not fair to the Hon'ble Speaker. They have
taken out one sentence from the speech of Hon'ble
Speaker of Lok Sabha and sought to create an impression
as if the matter had already been decided on the day one.
It was not so. The entire speech wherein the above
sentence appears is part of the Report of the Committee
and is on record. It reads thus;
"Hon. Members, certain very serious events
have come to my notice as also of many other
hon. Members. It will be looked into with all
importance it deserves. I have already spoken
to and discussed with all Hon. Leaders of
different Parties, including the Hon. Leader of
the Opposition and all have agreed that the
matter is extremely serious if proved to be
correct. I shall certainly ask the hon. Members
to explain what has happened. In the
meantime, I am making a personal request to
all of them 'please do not attend the Session of
the House until the matter is looked into and a
decision is taken' I have no manner of doubt
that all sections of the House feel deeply
concerned about it. I know that we should rise
to the occasion and we should see that such an
event does not occur ever in future and if
anybody is guilty, he should be punished.
Nobody would be spared. We shall certainly
respnd to it in a manner which behoves as.
Thank you very much."
(emphasis supplied)
It is thus clear that what was stated by the Hon'ble
Speaker was that "if anybody is guilty, he would be
punished. Nobody would be spared". In other words, an
assurance was given by the Hon'ble Speaker to the
members of august body that an appropriate action will
be taken without considering the position or status of an
individual member and if he is found guilty, he will not
be spared. The statement, in my judgment, is a
responsible one, expected of the Hon'ble Speaker of an
august body of the largest democracy. I, therefore, see
nothing in the above statement from which it can be
concluded that the issue had already been decided even
before the Committee was constituted and principles of
natural justice were violated.
CASH FOR QUERY : WHETHER MERE MORAL WRONG
It was also urged that taking on its face value, the
allegations against the petitioners were that they had
accepted money for tabling of questions in Parliament.
Nothing had been done within the four walls of the
House. At the most, therefore, it was a 'moral wrong' but
cannot fall within the mischief of 'legal wrong' so as to
empower the House to take any action. According to the
petitioners, 'moral obligations' can neither be converted
into 'constitutional obligations' nor non-observance
thereof would violate the scheme of the Constitution. No
action, therefore, can be taken even if it is held that the
allegations were well-founded.
I am unable to uphold the contention. It is true that
Indian Parliament is not a 'Court'. It cannot try anyone or
any case directly, as a court of justice can, but it can
certainly take up such cases by invoking its jurisdiction
concerning powers and privileges.
Dealing with 'Corruption or impropriety', Sir Erskine
May stated;
"The acceptance by a Member of either House
of a bribe to influence him in his conduct as a
Member, or of any fee, compensation or reward
in connection with the promotion of or
opposition to any bill, resolution, matter or
thing submitted or intended to be submitted to
either House, or to a committee, is a contempt.
Any person who is found to have offered such
a corrupt consideration is also in contempt. A
transaction of this character is both a gross
affront to the dignity of the House concerned
and an attempt to pervert the parliamentary
process implicit in Members' free discharge of
their duties to the House and (in the case of
the Commons) to the electorate".
Hilaire Burnett, ('Constitutional and Administrative
Law', Fourth Edn.; pp.571-72) also refers to "Cash for
questions", which started in 1993. It was alleged that two
members of Parliament, Tim Smith and Neil Hamilton
received payments/gifts in exchange for tabling
parliamentary questions. Both of them had ultimately
resigned.
The rapidly accelerating and intensifying
atmosphere of suspected corruption-sleaze-in public life
caused the Prime Minister to appoint a judicial inquiry
into standards of conduct in public life.
The author also observed; "The cash for questions
affair also raises issues concerning the press".
The Committee went into the allegations against the
officers of Parliament and recommended punishment. It
criticized the role of the Press as well, but no action had
been taken against the newspaper.
Solomon Commission and Nolan Committee also
considered the problem of corruption and bribery
prevailing in the system and made certain suggestions
and recommendations including a recommendation to
clarify the legal position as to trial of such cases.
I may state that I am not expressing any opinion
one way or the other on the criminal trial of such acts as
also the correctness or otherwise of the law laid down in
P.V. Narsimha Rao. To me, however, there is no doubt
and it is well-settled that in such cases, Parliament has
power to take up the matter so far as privileges are
concerned and it can take an appropriate action in
accordance with law. If it feels that the case of 'Cash for
query' was made out and it adversely affected honesty,
integrity and dignity of the House, it is open to the House
to attempt to ensure restoration of faith in one of the
pillars of democratic polity.
I am in agreement what has been stated by Mc
Lachlin, J. (as she then was) in Fred Harvey, already
referred to;
"If democracies are to survive, they must insist
upon the integrity of those who seek and hold
public office. They cannot tolerate corrupt
practices within the legislature. Nor can they
tolerate electoral fraud. If they do, two
consequences are apt to result. First, the
functioning of the legislature may be impaired.
Second, public confidence in the legislature
and the government may be undermined. No
democracy can afford either".
(emphasis supplied)
DOCTRINE OF PROPORTIONALITY
It was contended that expulsion of a member of
Parliament is a drastic step and even if the House
possesses such power, it cannot be lightly restored to. It
is against the well established principle of
proportionality. According to the petitioners, such a step
would do more harm to the constituency than to the
member in his personal capacity. It was, therefore,
submitted that proper exercise of power for misbehaviour
of a member is to suspend him for the rest of the day, or
at the most, for the remaining period of the session. If a
folly has been committed by some members, the
punishment may be awarded to them but it must be
commensurate with such act which should not be severe,
too harsh or unreasonably excessive, depriving the
constituency having its representation in the House.
Now, it cannot be gainsaid that expulsion of a
member is a grave measure and normally, it should not
be taken. I also concede that Palriament could have
taken a lenient view as suggested by the learned counsel
for the petitioners. But it cannot be accepted as a
proposition of law that since such action results in
deprivation of constituency having its representation in
the House, a member can never be expelled. If
representation of the constituency is taken to be the sole
consideration, no action can be taken which would result
in absence of representation of such constituency in the
House. Such interpretation would make statutory
provisions (the Representation of the People Act, 1951) as
also constitutional scheme (Articles 84, 102, 190, 191,
192, Tenth Schedule, etc.) non-workable, nugatory and
otiose. If a member is disqualified or has been convicted
by a competent court, he has to go and at least for the
time being, till new member is elected, there is no
representation of the constituency in the House but it is
inevitable and cannot be helped.
There is one more aspect also. Once it is conceded
that an action of suspension of a member can be taken
(and it was expressly conceded), I fail to understand why
in principle, an action of expulsion is impossible or
illegal. In a given case, such action may or may not be
lawful or called for, but in theory, it is not possible to
hold that while the former is permissible, the latter is
not. If it is made referable to representation of the
constituency, then as observed in Raj Narain, withdrawal
of a member from the House even for a brief period is a
serious matter both for the member and his
constituency. Important debates and votes may take
place during his absence even if the period be brief and
he may not be able to present his view-point or that of
the group or that of the constituency he represented. It
is, however, in the nature of disciplinary or punitive
action for a specific parliamentary offence, namely,
disorderly behaviour. Moreover, if the House has a right
to expel a member, non-representation of the
constituency is merely a consequence, nothing more. "If
the constituency goes unrepresented in the Assembly as
a result of the act of an elected member inconsistent with
the dignity and derogatory of the conduct expected of an
elected member, then it is the voters who alone will have
to take the blame for electing a member who indulges in
conduct which is unbecoming of an elected
representative".
POSSIBILITY OF MISUSE OF POWER BY PARLIAMENT
Finally, it was strenuously urged that Parliament/
State Legislature should not be conceded such a drastic
power to expel a member from the House. As Maintland
has stated, it is open to Parliament to expel a member on
the ground of 'ugly face'. Even in such case, no Court of
Law can grant relief to him. Considering ground-realities
and falling standards in public life, such an absolute
power will more be abused than exercised properly.
I am unable to accept the submission. Even in
England, where Parliament is sovereign and supreme and
can do everything but 'make woman a man and a man a
woman', no member of Parliament has ever been expelled
on the ground of 'ugly face'. And not even a single
incident has been placed before this Court to
substantiate the extreme argument. Even Maitland
himself has not noted any such instance. On the
contrary, he had admitted that normally, the power of
expulsion can be exercised for illegalities or misconduct
of a serious nature.
Again, it is well-established principle of law that the
mere possibility or likelihood of abuse of power does not
make the provision ultra vires or bad in law. There is
distinction between existence (or availability) of power
and exercise thereof. Legality or otherwise of the power
must be decided by considering the nature of power, the
extent thereof, the body or authority on whom it has been
conferred, the circumstances under which it can be
exercised and all other considerations which are relevant
and germane to the exercise of such power. A provision of
law cannot be objected only on the ground that it is likely
to be misused.
In State of Rajasthan v. Union of India, (1977) 3 SCC
592, 658 : AIR 1977 SC 1361 dealing with an identical
contention, Bhagwati, J. (as His Lordship then was)
stated;
"It must be remembered that merely because
power may some time be abused, is no ground
for denying the existence of power. The wisdom
of man has not yet been able to conceive of a
Government with power sufficient to answer all
its legitimate needs and at the same time
incapable of mischief". (emphasis supplied)
[see also Ajit Kumar Nag v. Indian Oil Corporation,
(2005) 7 SCC 764].
I am reminded what Chief Justice Marshall stated
before about two centuries in Providence Bank v. Alphens
Billings, 29 US 504 (1830) : 7 Law Ed 939;
"This vital power may be abused; but the
Constitution of the United States was not
intended to furnish the corrective for every
abuse of power which may be committed by
the State Governments. The interest, wisdom,
and justice of the representative body, and its
relations with its constituents furnish the only
security where there is no express contract
against unjust and excessive taxation, as well
as against unwise legislation generally."
(emphasis supplied)
CONCLUDING REMARKS
I have already held that the decisions taken, orders
made, findings recorded or conclusions arrived at by
Parliament/State Legislature are subject to judicial
review, albeit on limited grounds and parameters. If,
therefore, there is gross abuse of power by Parliament/
State Legislature, this Court will not hesitate in
discharging its duty by quashing the order or setting
aside unreasonable action.
I am reminded what Justice Sarkar stated in
Keshav Singh;
"I wish to add that I am not one of those who
feel that a Legislative Assembly cannot be
trusted with an absolute power of committing
for contempt. The Legislatures have by the
Constitution been expressly entrusted with
much more important things. During the
fourteen years that the Constitution has been
in operation, the Legislatures have not done
anything to justify the view that they do not
deserve to be trusted with power. I would point
out that though Art. 211 is not enforceable,
the Legislatures have shown an admirable
spirit of restraint and have not even once in all
these years discussed the conduct of Judges.
We must not lose faith in our people, we must
not think that the Legislatures would misuse
the powers given to them by the Constitution
or that safety lay only in judicial correction.
Such correct may produce friction and cause
more harm than good. In a modern State it is
often necessary for the good of the country
that parallel powers should exist in different
authorities. It is not inevitable that such
powers will clash. It would be defeatism to take
the view that in our country men would not be
available to work these powers smoothly and
in the best interests of the people and without
producing friction. I sincerely hope that what
has happened will never happen again and our
Constitution will be worked by the different
organs of the State amicably, wisely,
courageously and in the spirit in which the
makers of the Constitution expected them to
act".
I am in whole-hearted agreement with the above
observations. On my part, I may state that I am an
optimist who has trust and faith in both these august
units, namely, Legislature and Judiciary. By and large,
constitutional functionaries in this country have
admirably performed their functions, exercised their
powers and discharged their duties effectively, efficiently
and sincerely and there is no reason to doubt that in
coming years also they would continue to act in a
responsible manner expected of them. I am equally
confident that not only all the constituents of the State
will keep themselves within the domain of their
authority and will not encroach, trespass or overstep
the province of other organs but will also act in
preserving, protecting and upholding the faith,
confidence and trust reposed in them by the Founding
Fathers of the Constitution and by the people of this
great country by mutual regard, respect and dignity for
each other. On the whole, the situation is satisfactory
and I see no reason to be disappointed for future.
With the above observations and pious hope, I
dismiss the Writ Petition as also all transferred cases,
however, without any order as to costs.
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