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TMI Blog2007 (1) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent : None JUDGMENT Y.K. Sabharwal, C.J. Factual Backgrounds 1. 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. 2. 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 Commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect from same date. In the Writ Petitions/Transfer Cases, the expelled MPs have challenged the constitutional validity of their respective expulsions. 4. 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 defense 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. 5. The Report of the Ethics Committee was adopted by Rajya Sabha concurring with the recommendation of expulsion and on the same date i.e. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 8. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution. Contentions 10. 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 throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning 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 superi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy 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 defense 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, arb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate 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 AIR1973SC1461 , 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 [1981] 1 SCR 206 , Sub-Committee on Judicial Accountability v. Union of India AIR1992SC320 , I. Manilal Singh v. H . Borobabu Singh [1993]1 SCR 769, Union of India v. Assn. for Democratic Reforms [2002]3 SCR 696 , Special Reference No. 1 of 2002, In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-rule (2) of Article 83. 20. 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 center. The relations between the Union and the States are controlled by the provisions contained in Part XI of the Constitution. 21. The Constitution permits, through Article 118 and Article 208, the Legislature at the center 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leges 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. 28. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slature 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, 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. 34. 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 legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim. 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 supremacy over the ordinary courts of justice which was enjoyed by the undivided High Court of Parliament. The supremacy of Parliament, consisting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 40. 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. 41. The term 'privilege in law' is defined as immunity or an exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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]. 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. 44. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 45. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lts even though there is no precedent of the offence". 48. 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 consuetude parliament [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 recognized "privileges. As has been noticed earlier, the historic origin of the doctrine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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. 51. 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 v. 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". 52. 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 ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 54. 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 55. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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". 58. 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. 59. 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 Ir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttacker. 62. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing 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. 64. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 65. 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 Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 69. 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 Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 honorable Friends in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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) 73. 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. 74. 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 Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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. 75. Dr. B.R. Ambedkar, Chairman of the Dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dom 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 emphasize 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Clause (3). (Emphasis supplied) The above quoted observations squarely apply to the corresponding clauses of Article 105 of the Constitution. 85. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons at the relevant time? (Emphasis supplied) 88. 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 89. Before we consider the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulsion, 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 provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 AIR 2006 SC 918 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 91. 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 det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bered 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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. 99. 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. 100. 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Scheduled Castes & Scheduled Tribes and the Anglo Indian community. 104. 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. 105. 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. 106. 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. 107. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Constitution, this power cannot be claimed even, or least of all, through the channel of Articles 105(3) or 294(3). 110. 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. 111. 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. 112. 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 disqualificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etude 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. 116. 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. 117. Anson in 'The Law and Custom of the Constitution' [Fifth edition (1922), Volume I, Chapter IV] deals with the privileges of the House of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnate throughout the continuance of a Parliament. (Emphasis supplied) 120. 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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. 122. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cet 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a disqualification to sit and vote in the House, he remains capable of re-election. 126. 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, misappropriati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow-a-days, unless the member was charged with crime or with some very gross miss-behavior 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. 129. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tempt 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. 133. 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. 134. "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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Doncaster, on whose conduct a committee of privileges had reported adversely. The House declared him guilty of dishonorable conduct in having disclosed to a newspaper information that had come to him at a private and confidential party meeting. And (d) Formerly the House claimed from the reign of Elizabeth and exercised the right to determine questions of disputed election,.... 135. 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 misdemeanor 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. 136. 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. 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 behavior 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. 140. 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 Cock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 147. 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. 148. Thus, the questions that need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sive 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 conclusion... that the powers and privileges of Commons House of Parliament whether obtained by the lex et consuetude 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) 153. 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 Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Article 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 observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 159. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 161. 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 pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference, 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 emphasize 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 Article 143(1). (Emphasis supplied) 167. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rather, the above-quoted passage shows that such power had been accepted by the Court. The issue decided concerned the non-review ability 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. XXX 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 172. 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 takin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Crown to perform. This is the principle which governs all legal incidents. "Qunado Lex aliquid concedit, conceder 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 contempt's 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 180. 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 busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontempt. Principle of necessity 183. 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. 184. 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. 185. 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 188. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory 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. 192. 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 Septemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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. 194. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentary 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 Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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. xxx 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. 197. 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 jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 2005 to expel the petitioners from the membership of the two Houses. 200. 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. 201. 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 202. Having held that the power of expulsion can be claimed by Indian legislature as one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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}. 207. 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.) 208. Stephen J., at page 278, was categorical in his view that "the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 recognizing the validity of such general warrants, Judges have frequently observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgments 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).... 212. 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. 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. 215. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 218. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 emphasized, 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) 221. In the case of UP Assembly, this Court observed that the general issue as to the relevance and applicability of all the fundamental ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CR 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) 223. The hollowness of the proposition of total immunity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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? 226. He also referred to the judgment of Canada Supreme Court in the case of Harvey v. 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 pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imple 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. 229. 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 establishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us 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 [1981] 1 SCR 206 the fundamental rights and directive principles are held to be the conscience of the Constitution and disregard of either would upset the equivalence 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 arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 233. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Honorable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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) 237. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iffusion (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duce him in rank shall be final. 241. Construing the expression "finality" in the aforesaid provision, this Court in Union of India v. Tulsiram Patel (1985)IILLJ206SC , 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)... 242. 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". 243. Tenth Schedule was added to the Constitution by the Constitution (52nd Amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authorizes 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) 244. The following observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions in that capacity are amenable to judicial review. (Emphasis supplied) 245. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 248. The learned Additional Solicitor General has referred to Tej Kiran Jain v. N. Sanjiva Reddy [1971] 1SCR 612. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 [1952] 1 SCR 1020 , (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 [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. 250. 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 Parlia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings 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 pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 257. 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings, 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. 262. 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. 263. 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. 264. The learned Counsel for the petitioners, on the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh v. State of Punjab [1983]1 SCR 145a . 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) 268. It has been submitted by the petitioners that sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 273. The Ld. Counsel for Union of India concluded his submissions stating that in any exercise of judicial scrutiny o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether 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) 274. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arium Chemicals Ltd. v. Company Law Board [1967] 1 SCR 898 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 challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idity 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odies also because allowance is always to be given to the fact that the legislature is the best Judge in such matters. 289. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the impugned actions on the ground that the settled procedure and mechanism for bringing about cessation of the membership were by-passed. 294. 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. 295. 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 sufficie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 and Ors. [ AIR2007SC590 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. 300. We out rightly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 303. 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. 304. We are of the considered view that the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 310. 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 leveled against them and notifications expelling them as members of Parliament. 311. 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. 312. The Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccinctly explained by Sir Erskine May thus; The distinctive mark of a privilege is its ancillary 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 320. 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 center 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasis supplied) 323. 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 doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 325. 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. 326. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 331. 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) 332. 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. 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 334. The legal position under the Constitution of Canada is different to some extent. Section 18 of the Constitution of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e". The Trial Judge granted the claim which was upheld in appeal. The Speaker approached the Supreme Court. 337. 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 & E1 : 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. 338. 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 Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other. 342. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 344. 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 behavior has made them unfit to remain as members. ... The right of expulsion on these two grounds -- discipline and unfit behavior -- is a matter of parliamentar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke 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". Emphasizing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 349. 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. 350. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. 353. 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. 354. 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 punis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 356. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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]. 359. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 [Articles 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 [Articles 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 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. 361. 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 ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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) 362. Mr. Andhyarujina, Sr. Advocate appearing for Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Weymouth and Melcombe Regis) Persuaded his brother William and Reginald Marriott, a Treasury Official, falsely to endorse o?=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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 might) 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 o?=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 o?=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 attem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddlesex 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 o?=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 o?=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 rumors 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 rumors of the defeat and death of Napoleon Buonaparte in order to boost share prices). 16th Februa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 365. 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 'derogato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 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 367. 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.* 368. The first case which came to be decided by the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication. 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. 371. 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. 372. 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 peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niously and in 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 this country. But when, as in 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 reference is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognized 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 Article 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 Article 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 entiret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 justifiable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. That broadly stated, is, the position of powers and privileges claimed by the House of Commons. 373. Construing Article 212 in its proper perspective and drawing distinction between 'irregularity' and 'illegality', the Court stated; Article 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. Article 212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 and Ors. AIR1967MP95 , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases. 378. 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 reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liament 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 benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 200-the 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 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 384. 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 [1978]2SCR1 , and in P.V. Narasimha Rao v. State 1998CriLJ2930 . But what has been held is that such decision of Parliament/State Legislature is not 'final and conclusive'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. 385. 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 386. The petitioners also submitted that the law relating to disqualification and vacation of seats has been laid down in Articles 101 to 104 (and 190-193) read with Schedule X to the Constitution and of the Representation of the People Act, 1951. Those provisions are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, 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 388. 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 scru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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) [See also Kihoto Hollohan v. Zachillhu and Ors. [1992]1SCR686 ]. 391. 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. 392. 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'. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 395. 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]2SCR621 ; Kihoto Holohan and other decisions. 396. So far as principle of law is concerned, it is well-settled and cannot be disputed and is not challenged. In my opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 footag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpt's 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 recognized 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 emphasize 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. Continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defense 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 defense 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious 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 respondent to it in a manner which behaves 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted 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. 401. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 405. 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misused. 408. In State of Rajasthan v. Union of India [1978]1 SCR 1 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 AIR 2005 SC 4217 ]. 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 409. I have already held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinue 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. R.V. 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 412. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey 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).' 417. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. 419. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether 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 : 421. 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: 422. 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 Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mocratic 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 v. State of Kerala AIR 1973 SC 1461, it was observes that the Constitution being supreme, all the organs owe their existence to it. Each organ has to function within the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to matters not expressly provided in the latter statute, and which are compatible with the express provisions of the latter statute. 424. 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]1SCR371 ]. Lord Esher M.R. stated the effect of incorporation in Clarke v. 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. 425. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contemnors 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 429. In Re. the C.P. and Berar Sales of Motor Spirit & Lubricants Taxation Act, 1938 -- the Central Provinces case, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 432. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rresponding provisions in regard to the State Legislatures are found in Articles 168, 170, 171, 172, 174, 173, 191, 190 and 192 of the Constitution. 435. 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. 436. 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 Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 438. We have referred in detail to the various provisions to demonstrate that as far as the Indian Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 442. In the case of Members of Parliament, the Constitution has consciously used the word disqualification, both for 'being chosen as a member' and for ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter 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. 446. 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 : 447. 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 mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 451. 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 1998CriLJ2930 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. 452. I am, therefore, of the considered view that there is no power of expulsion in the Parliame ..... X X X X Extracts X X X X X X X X Extracts X X X X
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