TMI Blog2007 (1) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Committees. Another private channel telecast a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons/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. 23rd December, 2005, a notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and standing orders regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 through Article 105 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity from judicial interference, the contentions of the petitioners can be summarized thus: (i) The power of judicial review is an incident of and flows from the concept that the fundamental and higher laws are the touchstone of the limits of the powers of the various organs of State which derive power and authority under the Constitution of which the judicial wing is the interpreter; (ii) Unlike in England where Parliament is sovereign, in a federal State with a written Constitution like India is, the supremacy of the Constitution is fundamental to its existence, which supremacy is protected by the authority of the independent judicial body that acts as the interpreter thereof through the power of judicial review to which even the Legislature is amenable and cannot claim immunity wherefrom; (iii) The legislative supremacy being subject to the Constitution, Parliament cannot determine for itself the nature, scope and effect of its powers which are, consequently, subject to the supervision and control of judicial organ; (iv) The petitioners would also point out that unlike the Parliament of England, the status of Legislature in India has never been that of a superior cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reedy 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. To appreciate the contentions, it is necessary to first examine the constitutional scheme. That the Constitution is the Supreme lex in this Country is beyond the pale of any controversy. All organs of the State derive their authority, jurisdiction and powers from the Constitution and owe allegiance to it. This includes this Court also which represents the judicial organ. In the celebrated case of Kesavananda Bharati v. State of Kerala 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]1SCR206 , Sub-Committee on Judicial Accountability v. Union of India AIR1992SC320 , I. Manilal Singh v. H . Borobabu Singh [1993]1SCR769 , Union of India v. Assn. for Democratic Reforms [2002]3SCR696 , Special Reference No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islatures 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to 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 Parliamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers, privileges and immunities of the Legislatures and its members? 2. If the first question is answered in the affirmative, can it be found that the powers and privileges of the Legislatures in India, in particular with reference to Article 105, include the power of expulsion of their members? 3. In the event of such power of expulsion being found, does this Court have the jurisdiction to interfere in the exercise of the said power or privilege conferred on the Parliament and its members or Committees and, if so, is this jurisdiction circumscribed by certain limits? In our approach to these issues of great importance, we have followed the advice of Thomas Huxley in the following words: It is not who is right, but what is right, that is of importance In our quest, again borrowing the words of Thomas Huxley, we must learn what is true in order to do what is right. The need, if any, to take up for consideration, the grievances expressed by the petitioners in relation to the manner of exercise of the power and privilege asserted by both Houses of Parliament to expel their respective members would arise in light of decision on the two first-mentioned cardinal qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as soon as the Parliament defined by law its powers, privileges and immunities. Therefore, powers, privileges and immunities not having been defined, the question is what are those powers which were enjoyed by House of Commons at the commencement of our Constitution as that will determine the powers, privileges and immunities of both Houses of Indian Parliament. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y law prescribed to be taken by the members of the said chamber of legislature and to sit and vote in the House as an elected representative. This resolution was explained in due course by Speaker to mean that the exclusion of Bradlaugh from the House would continue until he should engage not to attempt to take the oath in disregard of the resolution of the House now in force . The issues that were raised before the court included the question whether the House of Commons had a right to pass such a resolution forbidding the member of the House within the walls of the House itself from doing something which by the law of the land he had a right to do so and whether the court could inquire into the said right and allow an action to be maintained by a member of the House. Reliance has been placed on certain observations made in the judgment that was rendered in the said fact situation. At page 275, Lord Coleridge, C.J. observed as under: Alongside, however, of these propositions, for the soundness of which I should be prepared most earnestly to contend, there is another proposition equally true, equally well established, which seems to me decisive of the case before us. What is sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by in proper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House, subject to any statutory exception such as exists in New Zealand in relation to perjury under Section 108 of the Crimes Act 1961. The learned Counsel would then refer to the law that has been evolved in India, the case of M.S.M. Sharma v. Sri Krishna Sinha 1959 Supp (1) SCR 806, hereinafter referred to as case of Pandit Sharma (I), being perhaps the first in a series of such cases on the subject. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es was also reconstituted. This led to a fresh notice being issued to Pandit Sharma in the wake of which he brought another writ petition under Article 32 of the Constitution, substantially raising the same questions and contentions as had been agitated in the earlier proceedings by him before this Court. This writ petition was dismissed by the Constitution Bench (eight Judges). The judgment is reported as M.S.M. Sharma v. Shree Krishna Sinha [1961]1SCR96 , 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 ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d day proceeded to hear the application for bail. At that stage, the Government Counsel did not appear. The division bench heard the application and ordered release of Keshav Singh on interim bail pending decision on his writ petition. The legislative assembly found that Keshav Singh and his advocate in moving the High court and the two Judges of the High Court in entertaining the petition and granting bail had committed contempt of the legislative assembly. The assembly passed a resolution that all of them, including the two High Court Judges, be produced before it in custody. The High Court Judges and the advocate in question thereupon filed writ petitions before the High Court at Allahabad. A full bench of the High Court admitted the writ petitions and ordered the stay of execution of the assembly's resolution against them. Subsequently, the legislative assembly passed a clarificatory resolution modifying its earlier stand and asking the Judges and the advocate to appear before the House and offer their explanation. It was against this backdrop that the President made a reference under Article 143(1) of the Constitution seeking opinion mainly as to the Constitutional relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existence and extent of the privileges themselves. It has never expressly abandoned this claim. On the other hand, the courts regard the privileges of Parliament as part of the law of the land, of which they are bound to take judicial notice. They consider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction, and to decide it according to their own interpretation of the law [May's Parliamentary Practice, p. 172]. Naturally, as a result of this dualism the decisions of the courts are not accepted as binding by the House in matters of privilege, nor the decisions of the House by the courts; and as May points out, on the theoretical plane, the old dualism remains unresolved. In practice, however, there is much more agreement on the nature and principles of privilege than the deadlock on the question of jurisdiction would lead one to expect and May describes these general conclusions in the following words: (1) It seems to be recognized that, for the purpose of adjudicating on questions of privilege, neither House is by itself entitled to claim the supremacy over the ordinary courts of justice which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to interpret the Constitution and, therefore, Article 194(3). It follows that when a question arises in this country under that article as to whether the House of Commons possessed a particular privilege at the commencement of the Constitution, that question must be settled, and settled only, by the Courts of law. There is no scope of the dreaded dualism appearing here, that is, courts entering into a controversy with a House of a legislature as to what its privileges are. I think what I have said should suffice to explain the nature of the privileges for the purposes of the present reference and I will now proceed to discuss the privileges of the Assembly that are in question in this case, using that word in the sense of rights ancillary to the main function of the legislature. (Emphasis supplied) His conclusions to above effect were steeled in view of the legal position in England, as is clear from the observations at page 522 of his Judgment, which read as under: All privileges of the House of Commons are based on law. That law is known as Lex Parliamenti. Hence privileges are matters which the House of Commons possesses as of right. In Stockdale v. Hansard 112 E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Benches of this Court in case after case, there ought not be any doubt left that whenever Parliament, or for that matter any State legislature, claims any power or privilege in terms of the provisions contained in Article 105(3), or Article 194(3) as the case may be, it is the court which has the authority and the jurisdiction to examine, on grievance being brought before it, to find out if the particular power or privilege that has been claimed or asserted by the legislature is one that was contemplated by the said constitutional provisions or, to put it simply, if it was such a power or privilege as can be said to have been vested in the House of Commons of the Parliament of United Kingdom as on the date of commencement of the Constitution of India so as to become available to the Indian legislatures. Historical perspective from England 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 constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a representative form of government. The origin of some of the Parliamentary privileges preceded Parliament itself and was part of the King's peace, common to all his subjects, but in special measure shared by his servants. The privilege of freedom of speech eventually came to be statutorily recognized by Article 9 of the Bill of Rights Act, 1688. May [23rd edn., pp.78, 79, 83, 89, 90] describes the historical development of privileges as follows: At the commencement of every Parliament it has been the custom for the Speaker, in the name, and on the behalf of the Commons, to lay claim by humble petition to their ancient and undoubted rights and privileges; particularly to freedom of speech in debate, freedom from arrest, freedom of access to Her Majesty whenever occasion shall require; and that the most favourable construction should be placed upon all their proceedings.... Freedom of Speech - The first claim in the Speaker's petition is for freedom of speech in debate. By the latter part of the fifteenth century, the Commons of England seems to have enjoyed an undefined right to freedom of speech, as a matter or tradition rather than by virtue of a privileg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivileges of Parliament are rights which are absolutely necessity for the due execution of its powers . They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity [May's Parliamentary Practice, pp. 42-43]. 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 Judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Parliament . This resolution was communicated by the House of Lords to Commons and assented to by them [May's Parliamentary Practice, p.47]. Thus, there can be no doubt that by its resolutions, the House of Commons cannot add to the list of its privileges and powers. The resolution of 1704, mentioned in the passage extracted above, had been adopted by the House of Lords in answer to an earlier resolution passed by the House of Commons declaring its intent to treat the conduct of any person in moving the court for relief in matters mentioned by the resolution of the House of Commons as amounting to its contempt. 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 alwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results even though there is no precedent of the offence . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offenders might include Members of the House itself or non-members, the latter comprising sheriffs, magistrates and even judges of the superior courts. 50. Almost to ensure that there be not any doubts entertained in this behalf in any quarter, while asserting its right to commit offenders on the same terms as the House of Lords, it was said in the House of Commons in 1593 as under: This court for its dignity and highness hath privilege, as all other courts have. And, as it is above all other courts, so it hath privilege above all other courts; and as it hath privilege and jurisdiction too, so hath it also Coercion and Compulsion; otherwise the jurisdiction is nothing in a court, if it hath no Coercion. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to point out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder and impeachments cannot be claimed by the House. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of a parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in cases of doubt [ibid, p. 175]. This privilege again, admittedly, cannot be claimed by the House. Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian legislature in so far as these matters are not provided for by rules made under this Act. Sub-Section (7) declared Subject to the rules and standing orders affecting the chamber that there shall be freedom of speech in both chambers of the Indian legislature ; and that no person shall be liable to any proceedings in any court by reason of his speech or vote in either chamber, or by reason of anything contained in any official report of the proceedings of either chamber . 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herent right of any assembly to defend itself against outside attacks and it is perfectly open in a proper cause for the House to table a substantive motion and pass a vote of censure or condemnation on the attacker. 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 Hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers and privileges of Indian Legislatures under Government of India Act, 1935. It ran as follows: 71.(3) Nothing in any existing Indian Law, and, notwithstanding anything in the foregoing provisions of this Section, nothing in this Act, shall be construed as conferring, or empowering any Legislature to confer, on a chamber thereof or on both Chambers sitting together or any Committee or officer of the Legislature, the status of a court, or any punitive or disciplinary powers other than the power to remove or exclude persons infringing the rules or standing orders, or otherwise behaving in a disorderly manner. Clearly, the intendment was to restrict the powers and privileges of Indian Legislatures to remedial action for unobstructed functioning, severely restricting, or rather forbidding, the exercise of punitive powers by a House of Legislature. 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, inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons who refuse to give evidence or produce documents before a committee of a Chamber when duly required by the Chairman of the Committee to do so. Provided that any such Act shall have effect subject to such rules for regulating the attendance before such committees of persons who are, or have been, in the service of the Crown in India, and safeguarding confidential matter from disclosure as may be made by the Governor General exercising his individual judgment. 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 Hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the enabling powers under Section 28(2) of Government of India Act, 1935, as adapted after Independence. 68. Dr. Ambedker, the Chairman of the Drafting Committee of the Constitution, while mooting for the Parliamentary system similar to the one obtaining in England noted, in the course of debates in the Constituent Assembly, that in the latter jurisdiction, the parliamentary system relies on the daily assessment of responsibility of the executive by members of parliament, through questions, resolutions, no-confidence motions and debates and periodic assessment done by the electorate at the time of election; unlike the one in the United States of America a system far more effective than the periodic assessment and far more necessary in a country like India. India thus adopted parliamentary Constitutional traditions. The concept of parliamentary privileges in India in its modern form is indeed one of graft, imported from England. The House of Commons having been accepted by the Constituent Assembly as the model of the legislature, the privileges of that House were transplanted into the draft Constitution through Articles 105 and 194. 69. Article 85 of the Draft Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esirable, when we are drafting our own constitution that we should lay down explicitly in an article that the provisions as regards this matter will be like those of the House of Commons in England? It may be argued in support of this proposition that there is nothing derogatory to the dignity of our Constitution or of our State in making reference to the United Kingdom. It may be further reinforced by the argument that now we have declared India as a full member of the Commonwealth, certainly there should be no objection, or any sort of compunction in referring to the House of Commons in England. But may I suggest for the serious consideration of the House as to whether it adds - it may not be derogatory, or detract from the dignity of the Constitution - but does it add to the dignity of the Constitution? We say that such and such thing should be what it is in the United Kingdom or in America. Will it not be far better, far happier for us to rely upon our own precedents, or our own traditions here in India than to import something from elsewhere and incorporate it by reference in the Constitution? Is it not sufficient to say that the rights and privileges and immunities of Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lcutta as to whether a person can be punished for contempt of the provincial legislature or other legislatures in this country. It has been held that there is no power to punish for contempt any person who is guilty of contempt of the provincial or even the Central Legislature, whereas the Parliament in England has the inherent right to punish for contempt. The question arose in the Dominions and in the Colonies and it has been held that by reason of the wide wording in the Australia Commonwealth Act as well as in the Canadian Act, the Parliament in both places have powers similar to the powers possessed by the Parliament in England and therefore have the right to punish for contempt. Are you going to deny to yourself that power? That is the question. I will deal with the second objection. If you have the time and if you have the leisure to formulate all the privileges in a compendious form, it will be well and good. I believe a Committee constituted by the Speaker on the legislative side found it very difficult to formulate all the privileges, unless they went in detail into the whole working of parliamentary institutions in England and the time was not sufficient before the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Dominions and others. To say that you are as good as Great Britain is not a badge of inferiority but an assertion of your own self-respect and also of the omnipotence of your Parliament. Therefore, I submit, Sir, there is absolutely no force in the objection made as to the reference to the British Parliament. Under these circumstances, far from this article being framed in a spirit of servility or slavery or subjection to Britain, it is framed in a spirit of self-assertion and an assertion that our country and our Parliament are as great as the Parliament of Great Britain. (Emphasis supplied) 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 corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittee to refer to an unwritten Constitution, viz., the Constitution of Great Britain. There is the written Constitution of the U.S.A., and some of us are proud of the fact that we have borrowed very much from the American Constitution. May I ask Dr. Ambedkar whether the privileges of the Members of the House of Commons in the United Kingdom are in any way superior to or better than the privileges of the members of the House of Representatives of the United States? If they are, I should like to have enlightenment on that point. If they are not, I think the reference to an unwritten Constitution is not at all desirable....If necessary let us put in a schedule to our Constitution, and say here in this article that the privileges and rights are as specified in the Schedule at the end.... I would any day prefer a definite schedule in the Constitution showing what privileges shall be enjoyed by members of the Legislatures and of Parliament. This particular clause, to my mind, should be recast. We have passed one clause on an earlier occasion, but that is no reason why we should perpetrate the same mistake over and over again. I would, therefore beg of Dr. Ambedkar and his wise team of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should enumerate the privileges of Parliament, we would have to follow three courses. One is to adopt them in the Constitution, namely to set out in detail the privileges and immunities of Parliament and its members. I have very carefully gone over May's Parliamentary Practice which is the source book of knowledge with regard to the immunities and privileges of Parliament. I have gone over the index to May's Parliamentary Practice and I have noticed that practically 8 or 9 columns of the index are devoted to the privileges and the immunities of Parliament. So that if you were to enact a complete code of the privilege and immunities of Parliament based upon what May has to say on this subject, I have not the least doubt in my mind that we will have to add not less than twenty or twenty five pages relating to immunities and privileges of Parliament. I do not know whether the Members of this House would like to have such a large categorical statement of privileges and immunities of Parliament extending over twenty or twenty five pages. That I think is one reason why we did not adopt that course. The other course is to say, as has been said in many places in the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re defined by law . From this perspective, the learned Additional Solicitor General is not wrong when he says that the establishment of privileges in India at par with those existing in the House of Commons was not reflective of a colonial legacy but, it was an assertion of the truly sovereign nature of the Indian Parliament. The above discussion shows that the reference to the privileges of the House of Commons was justified on grounds of self-assertion that free India and its Parliament are as great as the Parliament of Great Britain. The replies above quoted also show that the drafting committee was more concerned about giving to the Parliament the widest privileges as exercised by members of Parliament in England, including the power to punish for contempt of the House. Full fledged provisions listing out the powers and privileges was not possible as there was not sufficient time or the leisure to formulate all of them in a compendious form, as had been found by a Committee constituted by the Speaker on the legislative side. That is why a wide scope and unfettered discretion was being left for the future Parliament of India to set up the proper machinery for formulating pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - generally 80. As already noticed, Articles 105 and 194 employ almost identical language. Article 194 was at the core of the controversy in the UP Assembly Case. 81. Dealing with the provisions contained in Clause (1) of Article 194, this Court observed thus: ... Clause (1) makes it clear that the freedom of speech in the legislature of every State which it prescribes, is subject to the provisions of the Constitution, and to the rules and standing orders, regulating the procedure of the legislature. While interpreting this clause, it is necessary to 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 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers, privileges and immunities. There can be little doubt that the powers, privileges and immunities which are contemplated by Clause (3), are incidental powers, privileges and immunities which every legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of Clause (3). (Emphasis supplied) The above quoted observations squarely apply to the corresponding clauses of Article 105 of the Constitution. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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? (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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al terms as, Articles 101 and 102. It is necessary to understand the exact import of the terms 'vacancy', 'disqualification' and 'expulsion'. These terms have different meanings and they do not overlap. Disqualification strikes at the very root of the candidate's qualification and renders him or her unable to occupy a member's seat. Expulsion, on the other hand, deals with a person who is otherwise qualified, but in the opinion of the House of the legislature, unworthy of membership. While disqualification operates to prevent a candidate from re-election, expulsion occurs after the election of the member and there is no bar on re-election. As far as the term 'vacancy' is concerned, it is a consequence of the fact that a member cannot continue to hold membership. The reason may be any one of the several possible reasons which prevent the member from continuing membership, for example disqualification, death or expulsion. In view of above, it is not possible to accept the submission that the termination of membership can be effected only in the manner laid down in Articles 101 and 102. While these articles do speak of qualifications fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the only criteria upon which a vacancy can occur.... Thus, we are unable to accept the Petitioners' contention that Articles 101 and 102 are exhaustive with respect to termination of membership. Therefore, power of expulsion cannot be said to be inconsistent with these provisions. In connection with this issue, the Petitioners have also relied on two other provisions. First, they would submit that Sections 7-10A of the Representation of Peoples Act, 1951 lay down exhaustive provisions on disqualification, implying that all disqualifications must be made by law. Indeed, there is no quarrel with this position. In fact, it has been held by this Court in Shrikant v. Vasantrao AIR2006SC918 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 Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lary. When the membership terminates, the provisions of Article 106 become inapplicable. Similar arguments were made in the case of K. Anandan Nambiar v. Chief Secretary, State of Madras 1966CriLJ586 . In that case, certain members of Parliament were detained by the Government of Madras and one of the grounds on which they challenged their detention was the violation of their constitutional rights. In support of this contention, the Petitioners relied on various provisions relating to members and proceedings of the Parliament including Articles 79, 85, 86 and 100. They claimed that they continued to exercise all the 'constitutional rights' that flow from membership unless the member is disqualified. The contention was that if a Member of Parliament incurs a disqualification, he may cease to be such member, but if he continues to be qualified to be a member, his constitutional rights cannot be taken away by any law or order . This Court rejected this argument holding that: ...they are not constitutional rights in the strict sense, and quite clearly, they are not fundamental rights at all Emphasis supplied) 91. Although this case involved detention and the arrest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution makes a provision for salaries, the power of the House to expel is negated since the result would be that the member would no longer be paid. Salaries are obviously dependent upon membership, and the continuation of membership is an independent matter altogether. The termination of membership can occur for a variety of reasons and this is at no point controlled by the fact that salaries are required to be paid to a member. Thus, in our view, the above provisions do not negate the power of expulsion of the House, and there is no inconsistency between the House's power of expulsion and the said provisions. (iii) The right of the constituency to be represented and the right to vote: The next contention of behalf of the Petitioners has been that in the democratic set-up adopted by India, every citizen has a right to vote and to be duly represented. It was argued that expelling a member who has been elected by the people would violate the democratic principles and the constituency would go unrepresented in the Parliament. They submit that the right to vote ought to be treated as a fundamental right and that the power of expulsion violates various democr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liedly barred. It was also contended that Article 21, which includes the right to livelihood was violated, since it can only be restricted by a 'procedure established by law'. We are not impressed with any of these contentions of the petitioners. Even if it were to be assumed these rights apply, we do not believe that they could prevent reading the power of expulsion within Article 105(3). First, it is to be remembered that 105(3) is itself a constitutional provision and it is necessary that we must construe the provisions in such a way that a conflict with other provisions is avoided. We are of the view that where there is a specific constitutional provision as may have the effect of curtailing these fundamental rights if found applicable, there is no need for a law to be passed in terms of Article 19(6). For example, Article 102 relating to disqualifications provides that members who are of unsound mind or who are undischarged insolvents as declared by competent courts are disqualified. These grounds are not mentioned in the Representation of Peoples Act, 1951. Though this provision would have the effect of curtailing the rights under Article 19(1)(g), we doubt that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed by the House of Commons. It is true that certain privileges of the House of Commons are not available to any legislative body in India, whether at the Union level or in the States, even under Clauses (3) of Articles 105 or 194 of the Constitution. 96. The case of the petitioners is that the House of Commons derives the power to expel its members solely from its privilege of regulating its composition, and from no other source. In other words, they submit that the power of expulsion has always been claimed and exercised by the House of Commons as one that stems from the power of the House of Commons to determine its own composition including the fitness of elected members to remain members. Power of expulsion is a facet of and is part parcel of this basic privilege of the House of Commons to provide for and regulate its own Constitution. The House of Commons has always claimed an unrestricted and un-canalized power of expelling anyone of its members for historical reasons and as an adjunct of the ancient and peculiar privilege of determining its own composition. It has resorted to this power of expulsion in numerous cases which have not the remotest relevance to eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely as the Council of States and the House of the People. Article 81 deals with the composition of the House of the People and inter alia provides for the maximum numerical strength (not more than five hundred and thirty members from the States and not more than twenty members to represent the Union Territories), the manner of election (direct) and the nature of constituencies in the States (territorial), allotment thereof to the different States on the basis of ratio between the number of seats and the population of the State, with Article 82 taking care of the readjustment of allocation of seats and the division of each State into territorial constituencies after each census. Article 83 provides for the duration of each House of Parliament, making the council of States a permanent body with one-third of the members thereof retiring on the expiration of every second year, thereby giving to each of them tenure of six years. It declares the term of the House of the People to be five years, unless sooner dissolved, extendable for a period not exceeding one year at a time in the event of proclamation of emergency. 99. Article 84 prescribes the qualifications for membership of Parl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the resignation. 102. Article 99 requires every Member of Parliament to make and subscribe the oath or affirmation prescribed in the Third Schedule, before taking the seat. Article 104 prescribes a penalty for sitting and voting in the Parliament before making oath or affirmation or when not qualified or in the event of being rendered disqualified. , 103. Article 330 and Article 331 make special provision for reservation of seats in the House of the People for the Scheduled Castes Scheduled Tribes and the Anglo Indian community. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdiction to deal with election disputes in favour of the authority prescribed by law, which incidentally is High Court as per the Representation of People Act, 1951. 109. It must, therefore, be held as beyond the pale of all doubts that neither Parliament nor State Legislatures in India can assert power to provide for or regulate their own constitution in the manner claimed by the House of Commons in United Kingdom. Having regard to the elaborate provision made elsewhere in the Constitution, this power cannot be claimed even, or least of all, through the channel of Articles 105(3) or 294(3). 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elected but whom the House considers as not qualified to stand for elections and sit in Parliament e.g. insolvents, minor, lunatics, aliens, those charged with treason, peers etc. The House has a right to determine the qualifications in case of doubt which clearly shows that this statement does not mean unfitness to be a member by conduct. 115. The debate on the subject took the learned Counsel to the interpretation and exposition of law of Parliament as is found in the maxim lex et consuetude 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 H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though it may be a disqualification in fact, and the House of Commons is then compelled to rid itself of such a member by the process of expulsion. But expulsion, although it vacates the seat of the expelled member, does not create a disqualification; and if the constituency does not agree with the House as to the unfitness of the member expelled, they can re-elect him. If the House and the constituency differ irreconcilably as to the fitness of the person expelled, expulsion and re-election might alternate throughout the continuance of a Parliament. (Emphasis supplied) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he body of which it consists by issue of writs when vacancies occur during the existence of a parliament, by enforcing disqualification for sitting in parliament, and until 1868 by determining disputed elections. Noticeably, in this context, Anson would not mention expulsion as one of the facets of the power of the House of Commons to constitute itself. At the same time, one cannot lose sight of the fact that the power of inflicting punishment for breach of privilege has been separately dealt with even by Anson (5th ed., p. 177 onwards). The punishments which are awarded to members or non-members are dealt with by Anson under separate headings such as admonition , reprimand , commitment , fine , and expulsion . The discussion under the last mentioned item in Anson starts with the following passage (5th ed., p. 187): - In the case of its own members the House has a stronger mode of expressing its displeasure. It can by resolution expel a member. The resolution of expulsion as an expression of displeasure takes it beyond the realm of power of self constitution. These paragraphs unmistakably show that expulsion is not considered by Anson as exclusively arising from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 opens with the words, in addition to possessing complete control over the regulation of its proceedings and the conduct of its members . It refers only to the exclusive jurisdiction exercised by the House of Commons to the exclusion of the Courts. These words, according to the petitioners, in no manner locate a new source of expulsion power in the privilege of regulating its internal affairs. It is the argument of the petitioners that Expulsion is explicitly dealt with in paragraph 1026, which describes expulsion as being a facet exclusively of the privilege of determining due composition of the House. Para 1019 of Halsbury's Law of England quoted above corresponds to Para 905 in its third edition of Volume 28 (Part 7, Section 2), also under the heading Privileges peculiar to the House of Commons . As is seen in that edition, after making particular reference to the claim of the House of Commons to the exclusive right of providing as it deems fit for its own proper constitution , Halsbury would mention the Power of expulsion in the succeeding Para, as is noticeable in the following extract: 906. Power of expulsion. Although the House of Commons has delegated its r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Para 1026, which reads as under: 1026. House of Commons' Power of expulsion. Although the House of Commons has delegated its right to be the judge in controverted elections (see para 1019 note 2 ante), it retains its right to decide upon the qualifications of any of its members to sit and vote in Parliament. If in the opinion of the House a member has conducted himself in a manner which renders him unfit to serve as a member of Parliament, he may be expelled, but, unless the cause of his expulsion by the House constitutes in itself a disqualification to sit and vote in the House, he remains capable of re-election. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provide for and regulate its own Constitution, in the context of the vacation of seats in the House by incurring disqualifications, he refers in sub-Para (6) to the power of expulsion. His words may be extracted: The House has an undoubted power of expelling a member, and the law does not attempt to define the cases in which it may be used. If the House voted the expulsion of A.B. on the ground that he was ugly, no court could give A.B. any relief. The House's own discretion is the only limit to this power. Probably it would not be exercised now-a-days, unless the member was charged with crime or with some very gross miss-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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the House to provide for its own constitution. 132. Professors Keir and Lawson in their work Cases in Constitutional Law (fifth edition), while dealing with cases of Parliamentary privileges (page 263) mention first the exclusive jurisdiction over all questions which rise within the walls of the House except perhaps in cases of felony, referring in this context to case of Bradlaugh, and then to the personal privileges (freedom of debate, immunity from civil arrest, etc.) which attach to the members of Parliament, and lastly the punitive power for contempt indicated in the following words at page 268: (iii) The power of executing decisions in matters of privilege by committing members of Parliament, or any other individuals, to imprisonment for contempt of the House. This is exemplified in the case of the Sheriff of Middlesex. 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 ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proper course in such a case would therefore be for the House to expel the member a second time, if so disposed. In Upper Canada Mr. Mackenzie was thus four House times expelled in the Parliament from 1832. In October, 1947, the House expelled Mr. Garry Allighan, the member for Gravesend, after a committee of privileges had declared him to be guilty of gross contempt of the House in publishing scandalous charges against other members, such charges being, to his knowledge, unfounded and untrue. At the same time the House also reprimanded Mr. Evenlyn Walkden, the member for Doncaster, on whose conduct a committee of privileges had reported adversely. The House declared him guilty of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the matters of disqualification for membership. Though he would deal with the subject of expulsion at length with other punitive powers of the House, in as much as the results are equally grave and adverse to a sitting member, the petitioners argue that, May would categorically explain that expulsion is neither disciplinary nor punitive but purely a remedial measure intended to rid the house of persons who in its opinion are unfit for its membership. 139. The petitioners refer to the testimony given by Sir Barnett Cocks during inquiry before a Committee of the House of Commons. He had been specially called by the Committee of Privileges of the House of Commons in the case of Rt. Hon. Quintin Hogg, Lord President of the Council and Secretary of State for Education and Science and examined about the essence and the real nature of this parliamentary Privilege. The Report dated 16th June 1964 of the Committee indicates that when questioned by the Attorney General as to the nature of power exercised by the House of Commons treating the 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 it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 5 titled The privilege of Parliament and appears at page 90 onwards. As noticed earlier, the paragraph appearing in the 20th Edition wherein it was mentioned that the privilege to provide for its proper constitution was expressed in three ways by the House of Commons has been omitted. It is significant that the power of expulsion is mentioned even in the 23rd Edition, elaborately in Chapter 9 that deals with Penal Jurisdiction of both Houses , alongside the other such powers of punishment including committal, fines, reprimand and admonition. The observation that the purpose of expulsion is not so much disciplinary as remedial, not so much to punish Members as to rid the House of persons who are unfit for membership is also missing. We are unable to accept the contentions of the petitioners that the source of Power of Expulsion in England was the privilege of the House of Commons to regulate its own constitution or that the source of the power is single and indivisible and cannot be traced to some other source like independent or inherent penal power. The right to enforce its privileges either by imposition of fine or by commitment to prison (both of which punishments ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as part of its privilege to have complete control over its proceedings including the right to punish a member by expulsion who by his conduct interferes with the proper conduct of Parliament business. Power to punish for Contempt 145. The next question that we need to decide is whether the Indian parliament has the power of expulsion in relation to the power to punish for contempt. It is the contention of the petitioners that the Parliament cannot claim the larger punitive power to punish for contempt. 146. It has been argued on behalf of the Petitioners that the power to punish for contempt is a judicial power enjoyed by the House of Commons in its capacity as a High Court and, therefore, the same power would not be available to the legislatures in India. According to the Petitioners, this position has already been laid down in the case of UP Assembly. In addition, they would also place reliance on various decisions from other jurisdictions which make a distinction between punitive contempt powers - essentially judicial in nature and powers for self-protection - incidental to every legislative body. According to the Petitioners, the full, punitive power of the Hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exceed those possessed at the date of the enactment by the British House of Commons. The case of Dill v. Murphy 1864 (15) ER 784 revolved around the powers of the Legislative Assembly of Victoria. Such powers were held to include the power to punish for contempt and in the light of the enactment the distinction between the powers of the House of Commons as a legislative body and those as a High Court was not applied to weed out the 'judicial powers', this position being upheld in an appeal to the Privy Council. Williams J. held: On a closer investigation of all the authorities and considering the comprehensive nature of the 35th section, - no restriction as the House of Commons as a deliberative Assembly, but of the House of Commons generally, I am led to the 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 pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the House of Commons had them at the relevant time, will be not to interpret the Constitution but to re-make it. Nor do we share the view that it will not be right to entrust our Houses with these powers, privileges and immunities, for we are well persuaded that our Houses, like the House of Commons, will appreciate the benefit of publicity and will not exercise the powers, privileges and immunities except in gross cases. (Emphasis supplied) Reading this judgment and constitutional provisions, it does appear that the Constitution contains in Article 105(3) an express grant that is subject to no limitations on the powers of the Parliament. The petitioners, however, contend that the argument of availability of all the powers and privileges has already been authoritatively rejected in UP Assembly Case by this Court and reliance is placed on the following observations: Mr. Seervai's argument is that the latter part of 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power can never include power of expulsion, as expulsion is not necessary for the protection of the House. A distinction between expulsion and exclusion is sought to be brought out to argue that the measure of exclusion would be sufficient for the protection of the dignity of the House. 158. On the other hand, for the respondent it was submitted that the Privy Council cases referred to above are irrelevant in as much as they laid down the powers of subordinate or colonial legislatures, whereas Parliament in India is the supreme legislative body and the limitations that bind such subordinate bodies as the former category cannot bind the latter. 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 observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain the allegations. The High Court dismissed the petition holding that it had the limited jurisdiction to examine the existence of the power to expel and found that the House did in fact have this power. Noticeably, in this case, the High Court did not look into the power to punish for contempt. It held the Legislative Assembly's power to expel its member to be an inherent power for its protection, self-security and self-preservation and for the orderly conduct of its business. The High Court was of the view that: The House of Commons exercises the power of expelling a member not because it has the power to regulate its own constitution but because it finds it necessary for its proper functioning, protection and self-preservation to expel a member who has offered obstruction to the deliberations of the House during its sitting by his disorderly conduct or who has conducted himself in a manner rendering him unfit to serve as a member of the Parliament. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by Madras High Court that the power of expulsion is available as a method of disciplining members. However, at no point did the Court examine the power to punish for contempt. The Court upheld the power of expulsion independently of the contempt jurisdiction. 163. The petitioners referred to the case of UP Assembly, particularly the passages quoted hereinafter: In considering the nature of these privileges generally, and particularly the nature of the privilege claimed by the House to punish for contempt, it is necessary to remember the historical origin of this doctrine of privileges. In this connection, May has emphasized that the origin of the modern Parliament consisted in its judicial functions. ... In this connection, it is essential to bear in mind the fact that the status of a superior Court of Record which was accorded to the House of Commons, is based on historical facts to which we have already referred. It is a fact of English history that the Parliament was discharging judicial functions in its early career. It is a fact of both historical and constitutional history in England that the House of Lords still continues to be the highest Court of law in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he wake of these unsavory developments involving two organs of the State, the President of India decided to make a reference to the Supreme Court under Article 143(1) formulating certain questions on which he desired advice. 166. Significantly, the scope of the case was extremely narrow and limited to the questions placed before the Court. The Court noticed the narrow limits of the matter in following words: During the course of the debate, several propositions were canvassed before us and very large area of constitutional law was covered. We ought, therefore, to make it clear at the outset that in formulating our answers to the questions framed by the President in the present Reference, we propose to deal with only such points as, in our opinion, have a direct and material bearing on the problems posed by the said questions. It is hardly necessary to 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 neve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the opinion of the Court in case of UP Assembly, legislatures in India do enjoy the power to punish for contempt. It is equally clear that the while the fact that the House of Commons enjoyed the power to issue unspeaking warrants in its capacity of a Court of Record was one concern, what actually worried the Court was not the source of the power per se, but the 'judicial' nature of power to issue unspeaking warrant insofar as it was directly in conflict with the scheme of the Constitution whereby citizens were guaranteed fundamental rights and the power to enforce the fundamental right is vested in the Courts. It was not the power to punish for contempt about which the Court had reservations. Rather, the above-quoted passage shows that such power had been accepted by the Court. The issue decided concerned the non-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 outsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f enquiry against the Chief Minister and other Ministers of Karnataka. In this context, the Court examined the 'powers' of the state in relation to Article 194(3). It would be fruitful to extract the relevant portions of the decision. They are as follows: ...But, apart from an impeachment, which has become obsolete, or punishment for contempt's of a House, which constitute only a limited kind of offences, the Parliament does not punish the offender. For establishing his legal liability recourse to ordinary courts of law is indispensable. It is evident, from the Chapter in which Article 194 occurs as well as the heading and its marginal note that the powers meant to be indicated here are not independent. They are powers which depend upon and are necessary for the conduct of the business of each House. They cannot also be expanded into those of the House of Commons in England for all purposes. For example, it could not be contended that each House of a State Legislature has the same share of legislative power as the House of Commons has, as a constituent part of a completely sovereign legislature. Under our law it is the Constitution which is sovereign or supreme. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rather, the general purpose of its invocation was recognized. 171. Thus, we are unable to accept the contention that the power to punish for contempt is denied to the Indian legislatures as they are not Courts of Record. However, we would like to emphasize that the power to punish for contempt of the House of Commons is a very broad power, encompassing a variety of other powers. The case of UP Assembly examined only one aspect of that power - to issue unspeaking warrants - and held that such a power is unavailable under our constitution. What we are presently examining in the cases at hand is another aspect of this broad contempt power - the power to expel a sitting member. While we hold that the power to punish for contempt in its totality has not been struck down by decision in UP Assembly, we do not intend to rule on the validity of the broad power to punish for contempt as a whole. The different elements of this broad contempt power will have to be decided on an independent scrutiny of validity in appropriate case. We would restrict ourselves to the power to expel a member for contempt committed by him. Having found, however, that there is no bar on reading the power to puni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment was delivered by Mr. Baron Parke, who held: The whole question then is reduced to this,- whether by law, the power of committing for a contempt, not in the presence of the Assembly, is incident to every local Legislature. The Statute Law on this subject being silent, the Common Law is to govern it; and what is the Common Law, depends upon principle and precedent. Their Lordships see no reason to think, that in the principle of the Common Law, any other powers are given them, than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment, an act which on both sides, it is admitted, it was competent for the Crown to perform. This is the principle which governs all legal incidents. Qunado Lex aliquid concedit, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Dominica to punish its member for his conduct in the Assembly. This case followed Keilley and Fenton holding that the Assembly had no power to punish for contempt. The judgment was delivered by Sir James Colvile. It was observed: Keilley v. Carson...must here be taken to have decided conclusively that the Legislative Assemblies in the British Colonies have, in the absence of express grant, no power to adjudicate upon, or punish for, contempt's committed beyond their walls. (339) ... The privileges of the House of Commons, that of punishing for contempt being one, belong to it by virtue of lex et consuetude Parliamenti, which is a law peculiar to and inherent in two Houses of Parliament of the United Kingdom. It cannot therefore, be inferred from the possession of certain powers by the house of Commons, by virtue of that ancient usage and prescription, that the like powers belong to Legislative Assemblies of comparatively recent creation in the dependencies of the Crown. (339) Again, there is no resemblance between a Colonial House of Assembly, being a body which has no judicial functions, and a Court of Justice, being a Court of Record. There is, therefore, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unnecessarily prolonged suspension then by expulsion, after which a new election would immediately be held. (Emphasis supplied) The Court went on to examine what is necessary and found that an indefinite suspension could never be considered necessary. 178. The learned Counsel for the petitioners have relied on the above distinction and submitted that the limited power does not envisage expulsion and can only be used for ex facie contempt's. 179. We are not persuaded to subscribe to the propositions advanced on behalf of the petitioners. Even if we were to accept this distinction as applicable to the Indian parliament, in our opinion, the power to expel would be available. Firstly, the case of Barton, which allows only a limited power to punish for contempt, finds that even though the Legislative Assembly does not have the power to indefinitely suspend, as that was punitive in nature, the Assembly would have the power to expel, considering expulsion a non-punitive power. Secondly, the objection that the limited power could only deal with ex facie contempt, is not tenable. 180. In the above context, reference may be made to the case of Hartnett v. Crick (1908) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expulsion is always in respect of a member. At the same time, it needs to be borne in mind that a member is part of the House due to which his or her conduct always has a direct bearing upon the perception of the House. Any legislative body must act through its members and the connection between the conduct of the members and the perception of the House is strong. We, therefore, conclude that even if the Parliament had only the limited remedial power to punish for contempt, the power to expel would be well within the limits of such remedial contempt power. 182. We are unable to find any reason as to why legislatures established in India by the Constitution, including the Parliament under Article 105(3), should be denied the claim to the power of expulsion arising out of remedial power of contempt. Principle of necessity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 966, pp.104-05 (Odger's Australian Senate Practice 11th Edition, 56-57 ). 187. The Australian Joint Committee Report itself weighs the dangers of misuse of expulsion against any potential need for expulsion and definitively recommends its abolition: This danger [i.e. misuse by the majority] can never be eradicated and the fact that the only case in federal history when the power to expel was exercised is a case when, we think, the power was demonstrably misused is a compelling argument for its abolition. But the argument for abolition of the power to expel does not depend simply on the great potential for abuse and the harm such abuse can occasion. There are other considerations. Firstly, there are the detailed provisions in the Constitution. In short, we already have something approaching a statutory code of disqualification. Secondly, it is the electors in a constituency or in a State who decide on representation. In principle, we think it wrong that the institution to which the person has been elected should be able to reverse the decision of his constituents. If expelled he may stand for re-election but, as we have said, the damage occasioned by his expulsion may rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n India is against resort to the extreme penalty of expulsion from amongst the sanctions that may be exercised in cases of breach of privileges by the House of Commons. 191. The facts of the case of expulsion of Mr. Subramaniam Swamy from Rajya Sabha are narrated by Subhash C. Kashyap in his 'Parliamentary Procedure' (Vol. 2, p. 1657). It appears that Rajya Sabha adopted a motion on 2nd September 1976 appointing a Committee to investigate the conduct and activities of the said member, within and outside the country, including alleged anti-India propaganda calculated to bring into disrepute Parliament and other democratic institutions of the country and generally behaving in a manner unworthy of a member. The Committee presented report on 12th November 1976 recommending expulsion as his conduct was found to be derogatory to the dignity of the House and inconsistent with the standards which it was entitled to expect from its members. On 15th November 1976, a motion was adopted by Rajya Sabha expelling the member. 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 Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arginal case, where people may have two opinions about it, where one may have doubts if a certain course suggested is much too severe. The case, if I may say so, is as bad as it could well be. If we consider even such a case as a marginal case or as one where perhaps a certain amount of laxity might be shown, I think it will be unfortunate from a variety of points of view, more especially because, this being the first case of its kind coming up before the House, if the House does not express its will in such matters in clear, unambiguous and forceful terms, then doubts may very well arise in the public mind as to whether the House is very definite about such matters or not. Therefore, I do submit that it has become a duty for us and an obligation to be clear, precise and definite. The facts are clear and precise and the decision should also be clear and precise and unambiguous. And I submit the decision of the House should be after accepting the finding of this report, to resolve that the Member should be expelled from the House. Therefore, I beg to move: That this House, having considered the Report of the Committee appointed on the 8th June, 1951 to investigate into the conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viting attention to the full Bench decision of Punjab Haryana High Court in the case of Hardwari Lal ILR (1977) 2 P H 269 stated that the proposal to expel was not countenanced by the Constitution and the House had no power to expel an elected member. Mr. K.S. Hegde, the Speaker, acknowledged the importance of the constitutional arguments advanced by Mr. C.M. Stephen. On 19th December 1978, the House adopted a motion resolving that Mrs. Indira Gandhi be committed to jail till the prorogation of the House and also be expelled from the membership of the House for the serious breach of privilege and contempt of the House committed by her. 195. What was done by the 6th Lok Sabha through the resolution adopted on 19th December 1978 was undone by the 7th Lok Sabha. It discussed the propriety of the earlier decision. Certain speeches rendered in the course of the debate have been relied upon, in extenso, by the learned Counsel and may be taken note of. Mr. B.R. Bhagat spoke thus: They have committed an error. I am not going into the morality of it, because I am on a stronger ground. It is illegal because there is no jurisdiction. Coming to the third point the determination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y tend to destroy the sanctity and value of the privileges of the Parliament. Now, I am dealing only with the deliberations of the Committee. When the matter comes before House, then I will come with it separately. In that, political vendetta governed the Members of the Committee. If you take the previous precedents either here in this Parliament, or in the House of Commons or in other Parliaments, you will find that the decisions of the Privileges Committee were unanimous. They are not on party lines. But in this particular case, not only the decisions were on party lines, but there were as many as 6 or 7 Notes many of them were votes of dissent though they were not called as such because this is another matter which I want to refer quoting: Under the Directions of the Speaker 'there shall be no Minute of Dissent to the report of a parliamentary committee - this is a parliamentary committee - 'except the select committee'. In a Select Committee or a Joint Select Committee Minutes of Dissent are appended. In other parliamentary committees - the Privileges Committee is a parliamentary committee - under Direction 68(3), There shall be no minute of dissent to the rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that of either reprimand or admonition. In this matter also, the majority decision of the Privileges Committee showed a bias or rather a vendetta. 196. Mr. A.K. Sen, in his speech was more concerned about the fairness of the procedure that had been adopted by the Committee on Privileges before ordering expulsion of Mrs. Gandhi and others. He stated as under: I remember when Charles the First was arraigned before the court which was set up by the Cromwell's Government, at the end of the trial, he was asked whether he had anything to plead by way of defense. The famous words he uttered were these. I do not think I can repeat them word by word, but I would repeat the substance. He said To whom shall I plead my defense? I only find accusers and no Judges . So this is what happened when Mrs. Gandhi appeared before this august Committee. Excepting a few who had the courage to record their notes of dissent, the minds of the rest had already been made up. This is very clear from the utterances which came from them outside the Parliament, before and after the elections and from the way they were trying to manipulate the entire matter. xxx Sir, the Supreme Court in a series ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners that the resolution adopted on 7th May 1981 by Lok Sabha clearly shows that resort to expulsion of a sitting elected member of the House was against parliamentary rules, precedents and conventions and an act of betrayal of the electorate and abuse by brute majoritarian forces. In this context, the learned Counsel would point out that reference was made repeatedly in the course of debate by the Members of Lok Sabha, to the majority view of Punjab Haryana High Court in the case of Hardwari Lal. The learned Counsel would submit that Lok Sabha had itself resolved that the proceedings of the Privileges Committee and of the House in the case of expulsion of Mrs. Gandhi shall not constitute a precedent in the law of parliamentary privileges. They argue that in the teeth of such a resolution, it was not permissible for the Parliament to have again resolved in December 2005 to expel the petitioners from the membership of the two Houses. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as the express provisions thereof. It has been submitted that the English decisions, including Bradlaugh, cannot be transplanted into the Indian Constitution and are irrelevant as the position of Parliament in the United Kingdom is entirely different from that of the Indian Parliament which is functioning under the Constitution and powers of which are circumscribed by the Constitution, which is supreme and not the Parliament. 206. Against the backdrop of challenge to the jurisdiction of the court to examine the action of the legislature in the matter arising out of its privilege and power to punish for contempt, this Court in the case of UP Assembly took note of the law laid down in a series of cases that came up in England during the turbulent years of struggle of House of the Commons to assert its privileges. {Earl of Shaftesbury 86 E.R. 792, Ashby v. White (1703-04) 92 E.R. 129, R. v. Paty (1704) 92 E.R. 232, Case of Murray 95 E.R. 629, Case of Brass Crosby 95 E.R. 1005, Case of Sir Francis Burdett 104 E.R. 501, Cases of Stockdale (1836-37), Howard v. Sir William Gosset 116 E.R. 139 and Bradlaugh v. Gossett (1884) L.R. 12 Q.B.D. 271}. 207. The learned Counsel for Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in violation of its rules or derogation from its dignity, stands upon the clearest grounds of necessity. Further, at page 285 Stephen J. observed thus: I do not say that the resolution of the House is the judgment of a Court not subject to our revision; but it has much in common with such a judgment. The House of Commons is not a Court of Justice; but the effect of its privilege to regulate its own internal concerns practically invests it with a judicial character when it has to apply to particular cases the provisions of Acts of Parliament. We must presume that it discharges this function properly and with due regard to the laws, in the making of which it has so great a share. If its determination is not in accordance with law, this resembles the case of an error by a judge whose decision is not subject to appeal. (Emphasis supplied) 209. On the basis of appraisal of the law in the aforementioned series of cases, this Court summarized the position in the law of England on the question of jurisdiction of the court in matters arising out of contempt jurisdiction of the legislature, in the following words at page 482: 108. Having examined the relevant decisions beari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give any relief to Bradlaugh, and he suggested that a similar approach should be adopted in dealing with the present dispute before us. The obvious answer to this contention is that we are not dealing with any matter relating to the internal management of the House in the present proceedings. We are dealing with the power of the House to punish citizens for contempt alleged to have been committed by them outside the four walls of the House, and that essentially raises different considerations. (Emphasis supplied) 211. The submission of the learned Counsel is that the view in Bradlaugh that matters of internal management were beyond the purview of judicial scrutiny had been followed. This, according to the learned Counsel, has been the consistent view of this Court, as can be seen from the cases of Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1 and P.V. Narasimha Rao v. State (CBI/SPE) 1998CriLJ2930 . Both the judgments referred to the law in Bradlaugh, the case of P.V. Narsimha Rao also quoted with approval Stockdale. In the case of Indira Nehru Gandhi, the court took note, in Para 70, of the law in Bradlaugh, in the following words: ...It was held that the Court had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it was not so subject, and that the several clauses of Article 194, or Article 105, should not be treated as distinct and separate provisions but should be read as a whole and that, so read, all the clauses should be taken as subject to the provisions of the Constitution which would include Article 19(1)(a). It was also argued that Article 194(1), like Article 105(1), in reality operates as an abridgement of the fundamental rights of freedom of speech conferred by Article 19(1)(a) when exercised in Parliament or the State Legislature, as the case may be, but Article 194(3) does not purport to be an exception to Article 19(1)(a). It was then submitted that Article 19 enunciates a transcendental principle and confers on the citizens of India indefeasible fundamental rights of a permanent nature while the second part of Article 194(3) was of the nature of a transitory provision which, from its very nature, could not override the fundamental rights. Further, the contention raised was that if in pursuance of Article 105(3), Parliament were to make a law under entry 74 in List I to the Seventh Schedule defining the powers, privileges and immunities of the Houses of Parliament and if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arts of Article 105(3) and Article 194(3) to the provisions of Article 13(2) that it may well be that that is perhaps the reason why our Parliament and the State Legislatures have not made any law defining the powers, privileges and immunities.... 216. On the basis of conclusions so reached, this Court reconciled the conflict between fundamental right of speech expression under Article 19(1)(a) on one hand and the powers and privileges of the Legislative Assembly under Article 194(3) on the other by holding thus: The principle of harmonious construction must be adopted and so construed, the provisions of Article 19(1)(a), which are general, must yield to Article 194(1) and the latter part of its cl. (3) which are special 217. Pandit Sharma had also invoked Article 21 to contend that the proceedings before the Committee of Privileges of the Legislative Assembly threatened to deprive him of personal liberty otherwise than in accordance with the procedure established by law. This Court, however, found that the Legislative Assembly had framed rules of procedure under Article 208 and, therefore, if the petitioner was eventually deprived of his personal liberty as a result of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable to suggest that those provisions must be ignored just because the said clause does not open with the words subject to the other provisions of the Constitution. In dealing with the effect of the provisions contained in Clause (3) of Article 194, wherever it appears that there is a conflict between the said provisions and the provisions pertaining to fundamental rights, an attempt will have to be made to resolve the said conflict by the adoption of the rule of harmonious construction. (Emphasis supplied) 220. Reiterating the view taken in Pandit Sharma (I), it was observed at page 452 as under: ...It is true that the power to make such a law has been conferred on the legislatures by the first part of Article 194(3); but when the State Legislatures purport to exercise this power, they will undoubtedly be acting under Article 246 read with Entry 39 of List II. The enactment of such a law cannot be said to be in exercise of a constituent power, and so, such a law will have to be treated as a law within the meaning of Article 13. That is the view which the majority decision expressed in the case of Pandit Sharma (1959) Supp. 1 SCR 806, and we are in respectful agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 194(3) and the right of the citizen to approach this Court for redressal under Article 32. In this context, in Para 125 (at pages 492-93), it was held: ...If Article 21 applies, Article 20 may conceivably apply, and the question may arise, if a citizen complains that his fundamental right had been contravened either under Article 20 or Article 21, can he or can he not move this Court under Article 32? For the purpose of making the point which we are discussing, the applicability of Article 21 itself would be enough. If a citizen moves this Court and complains that his fundamental right under Article 21 had been contravened, it would plainly be the duty of this Court to examine the merits of the said contention, and that inevitably raises the question as to whether the personal liberty of the citizen has been taken away according to the procedure established by law. In fact, this question was actually considered by this Court in the case of Pandit Sharma (1959) Supp. 1 SCR 806. It is true that the answer was made in favour of the legislature: but that is wholly immaterial for the purpose of the present discussion. If in a given case, the allegation made by the citizen is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to contempt alleged to have been committed by a citizen who is not a member of the House outside the four-walls of the legislative chamber . The submission of the learned Counsel is that the Court in the said case had deliberately omitted reference to infringement of privileges and immunities of the Legislature other than those with which it was concerned in the said matter and, therefore, the views taken with regard to applicability of Article 20 or Article 21 could not be taken as law settled. 225. The learned Counsel for Union of India further submitted that in exercise of the privileges of the House to regulate its own proceedings including the power to expel a member, it does not engage Article 14 or Article 19. He referred to the judgment of Canada Supreme Court in New Brunswick Broadcasting Corporation v. Nova Scotia Speaker 1993 (1) SCR 391, in particular, the observations (page 373) to the following effect: It is a basic rule, not disputed in this case, that one part of the Constitution cannot be abrogated or diminished by another part of the Constitution: Reference re Bill 30, An Act to amend the Education Act (Ont.) [1987] 1 SCR 1148. So if the privilege to expel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more recently the Speaker in Canada stated In my view, parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a member to discharge his duties as a member of the House of Commons (page 682). Be that as it may, in our considered opinion, the law laid down by the Supreme Court of Canada has to be construed in the light of Constitutional and statutory provisions in vogue in that jurisdiction and have no relevance here in as much as it has already been settled in the aforementioned cases by this Court that the manner of enforcement of privilege by the legislature can result in judicial scrutiny on the touch-stone of Articles 20 or 21, though subject to the restrictions contained in the other Constitutional provision, for example Article 212(1) in the case of legislative assembly of the State (corresponding to Article 122 in the case of Parliament). 228. We are unable to accept the argument of the learned Counsel for Union of India for the simple reason that what this Court deliberately omitted to do in the case of UP Assembly was consideration of the powers, privileges and immunities other than the contempt jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . State of Madras 1950CriLJ1383 , per majority, the Constitution Bench had held that the operation of each article of the Constitution and its effect on the protection of fundamental rights is required to be measured independently and not in conjoint consideration of all the relevant provisions. The above ratio was overruled by a Bench of 11 Judges in Rustom Cavasjee Cooper v. Union of India [1970]3SCR530 . This Court had held that all the provisions of the Constitution conjointly be read on the effect and operation of fundamental right of the citizens when the State action infringes the right of the individual. In D.T.C. case 1991 Supp (1) SCC 600 (SCC at pp. 750-51, paras 297 and 298) it was held that: It is well-settled constitutional law that different articles in the chapter on Fundamental Rights and the Directive Principles in Part IV of the Constitution must be read as an integral and incorporeal whole with possible overlapping with the subject-matter of what is to be protected by its various provisions particularly the Fundamental Rights. ... The nature and content of the protection of the fundamental rights is measured not by the operation of the State action upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid fundamental right interpreted as above. It is to be remembered that the plenitude of powers possessed by the Parliament under the written Constitution is subject to legislative competence and restrictions of fundamental rights and that in case a member's personal liberty was threatened by imprisonment of committal in execution of Parliamentary privilege, Article 21 would be attracted. If it were so, we are unable to fathom any reason why the general proposition that fundamental rights cannot be invoked in matters concerning Parliamentary privileges should be accepted. Further, there is no reason why the member, or indeed a non-member, should not be entitled to the protection of Article 21, or for that matter Article 20, in case the exercise of Parliamentary privilege contemplates a sanction other than that of committal. Judicial Review - Effect of Article 122 232. It is the contention of the learned Counsel for Union of India that it should be left to the wisdom of the legislature to decide as to on what occasion and in what manner the power is to be exercised especially as the Constitution gives to it the liberty of making rules for regulating its procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 122(1) prohibits the validity of any proceedings in Parliament from being called in question in a court merely on the ground of irregularity of procedure . In other words, the procedural irregularities cannot be used by the court to undo or vitiate what happens within the four walls of the legislature. But then, 'procedural irregularity' stands in stark contrast to 'substantive illegality' which cannot be found included in the former. We are of the considered view that this specific provision with regard to check on the role of the judicial organ vis-o?=-vis proceedings in Parliament uses language which is neither vague nor ambiguous and, therefore, must be treated as the constitutional mandate on the subject, rendering unnecessary search for an answer elsewhere or invocation of principles of harmonious construction. 236. Article 122 corresponds to Draft Article 101 which was considered by the Constituent Assembly on 23rd May 1949. Though the marginal note of the Article Courts not to enquire into proceedings of Parliament clearly indicates the import of the provision contained therein, Mr. H.V. Kamath introduced an amendment that the words in any court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yond the Lists, the legislatures cannot travel. They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution; but the basis of the power is the Constitution itself. Besides, the legislative supremacy of our legislatures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. If the legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution. 40. In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign. It is no doubt true that the Constitution itself can be amended by the Parliament, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of 'limited government'. Judicial review is, indeed, an incident of and flows from this concept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authority under the Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State. It is to be noted that the British Parliament with the Crown is supreme and its powers are unlimited and courts have no power of judicial review of legislation. 63. But it is the duty of this Court to interpret the Constitution for the meaning of which this Court is final arbiter. 65. The rule in Bradlaugh v. Gossett (1884)12 QBD 271 : 50 LT 620 was held not applicable to proceedings of colonial legislature governed by the written Constitutions Barton v. Taylor (1886)11 AC 197 : 2 TLR 382 and Rediffusion (Hong Kong) Ltd. v. Attorney General of Hong Kong (1970) AC 1136 : (1970)2 WLR 1264. 66. The principles in Bradlaugh (18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finality of the order of the President the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the Rules of natural justice were not observed, or that the President's judgment was coloured by the advice or representation made by the executive or it was founded on no evidence. 240. Article 311 relates to the dismissal, removal etc. of persons employed in civil capacities under the Union or a State. The second proviso to Article 311(2) empowers the President or the Governor, as the case may be, to dispense with the enquiry generally required to be held, upon satisfaction that in the interest of the security of the State it is not expedient to hold such enquiry. Article 311(3) gives finality to such decision in the following manner: If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in Clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. 241. Construing the expression finality in the aforesaid provision, this Court in Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Constitution Bench of this Court in the case of Kihoto Hollohan v. Zachillhu [1992]1SCR686 . The matter was examined by this Court with reference, amongst others, to the immunity under Article 122, exclusivity of the jurisdiction vested in the authority mentioned in the Tenth Schedule and the concept of finality , in addition to an express bar making it a non-justifiable area. Construing the word finality and referring, inter alia, to interpretation of similar finality clause in Article 217(3) in the case of Jyoti Prakash Mitter and in Article 311(3) as construed in Tulsiram Patel, this Court held that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule was a judicial power and it was inappropriate to claim that it was within the non-justifiable legislative area. The Court referred to the case of Express Newspaper (P) Ltd. v. Union of India (1961)ILLJ339SC and quoted the exposition as to what distinguishes a judicial power from a legislative power in Australian Boot Trade Employees Federation v. Whybrow Co. (1910) 10 CLR 266 by Issacs, J. as under: If the dispute is as to the relative rights of parties as they rest on past or present circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the State's judicial power.... There is, in that sense, a lis; there is affirmation by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to it. The order which the State Government ultimately passes is described as its decision and it is made final and binding. 101. In the operative conclusions we pronounced on November 12, 1991 we indicated in Clauses (G) and (H) therein that judicial review in the area is limited in the manner indicated. If the adjudicatory authority is a tribunal, as indeed we have held it to be, why, then, should its scope be so limited? The finality clause in Paragraph 6 does not completely exclude the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. Such an action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent it seeks to impart finality to the decision of the speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned. That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh case to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words 'be deemed to be proceedings in Parliament' or 'proceedings in the legislature of a State' confines the scope of the fiction accordingly. The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review. (Emphasis supplied) 245. In answer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subscribe to the proposition that there is absolute immunity available to the Parliamentary proceedings relating to Article 105(3). It is a different matter as to what parameters, if any, should regulate or control the judicial scrutiny of such proceedings. 247. In the case of UP Assembly, the issue was authoritatively settled by this Court, and it was held, at pages 455-456, as under: 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) With reference to the above-quoted observations recognizing the permissibility of scrutiny in a court of law on allegation that the impugned procedure was illegal or unconstitutional, the learned Additional Solicitor General submitted that these observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution prevents this Court from going into any question relating to irregularity of proceedings in Parliament. XXX 507. What is alleged by the election petitioner is that the opposition members of Parliament, who had been detained under the preventive detention laws, were entitled to get notice of the proposed enactments and the Thirty-ninth Amendment, so as to be present in Parliament , to oppose these changes in the law. I am afraid, such an objection is directly covered by the terms of Article 122 which debars every court from examining the propriety of proceedings in Parliament . If any privileges of members of Parliament were involved, it was open to them to have the question raised in Parliament . There is no provision of the Constitution which has been pointed out to us providing for any notice to each member of Parliament. That, I think, is also a matter completely covered by Article 122 of the Constitution. All that this Court can look into, in appropriate cases, is whether the procedure which amounts to legislation or, in the case of a constitutional amendment, which is prescribed by Article 368 of the Constitution, was gone through at all. As a proof of that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Parliament takes it up for consideration along with the motion for his removal. Along with the decision in Keshav Singh has to be read the declaration made in Sub-Committee on Judicial Accountability that 'a law made under Article 124(5) will override the rules made under Article 118 and shall be binding on both the Houses of Parliament. A violation of such a law would constitute illegality and could not be immune from judicial scrutiny under Article 122(1)'. The scope of permissible challenge by the concerned Judge to the order of removal made by the President under Article 124(4) in the judicial review available after making of the order of removal by the President will be determined on these considerations.... (Emphasis supplied) 252. The learned Counsel for petitioners would refer, in the above context, to a number of decisions rendered by different High Courts adopting a similar approach to construe Article 122 or provisions corresponding thereto in other enactments. 253. Article 122(1) thus must be found to contemplate the twin test of legality and constitutionality for any proceedings within the four walls of Parliament. The fact that the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution, a limited area of judicial scrutiny would be available, which limited judicial review would be distinct from the area of judicial review that is available when administrative exercise of power under a statute falls for consideration. His argument is that such limited judicial review is distinct from the exercise of powers coupled with a purpose and also distinct from judicial scrutiny on the ground of mala fides. It is his contention that the courts of judicature in India have the power of judicial review to determine the existence of privilege but once privilege is shown to exist, the exercise of that privilege and the manner of exercise that privilege must be left to the domain of Parliament without any interference. Further, learned Additional Solicitor General submits that while what takes place within the walls of the Parliament is not available for scrutiny and even when the Parliament deals with matters outside its walls, in a matter supported by an acknowledged privilege, there would be little scrutiny and very limited and restricted judicial review. 256. We find substance in the submission that it is always expected, rather it should be a matter of presumption, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority of Parliament would actually be tried and punished in a Court of Judicature. He submitted that the frontiers of judicial review have now widened in that illegality, irrationality and procedural impropriety could be causes, but such principles have absolutely no basis in judging Parliament's action. 260. While we agree that contempt of authority of Parliament can be tried and punished nowhere except before it, the judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature. As has been noticed, in the context of Article 122(1), mere irregularity of the procedure cannot be a ground of challenge to the proceedings in Parliament or effect thereof, and while same view can be adopted as to the element of irrationality , but in our constitutional scheme, illegality or unconstitutionality will not save the Parliamentary proceedings. 261. It is the submission of the learned Additional Solicitor General that the proceedings in question were proceedings which were entitled to protection under Article 105(2). In other words, in respect of proceedings, if a member is offered immunity, Parli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f constitutional provisions is shown, the judicial review will not be inhibited in any manner by Article 122, or for that matter by Article 105. If one was to accept what was alleged while rescinding the resolution of expulsion by the 7th Lok Sabha with conclusion that it was inconsistent with and violative of the well-accepted principles of the law of Parliamentary privilege and the basic safeguards assured to all enshrined in the Constitution , it would be partisan action in the name of exercise of privilege. We are not going into this issue but citing the incident as an illustration. 266. Having concluded that this Court has the jurisdiction to examine the procedure adopted to find if it is vitiated by any illegality or unconstitutionality, we must now examine the need for circumspection in judicial review of such matters as concern the powers and privileges of such august body as the Parliament. 267.. The learned Counsel for petitioners have submitted that the expanded understanding of the fundamental rights in general and Articles 14 and 21 in particular, incorporates checks on arbitrariness. They place reliance on the case of Bachan Singh v. State of Punjab [1983]1S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undation of separation of powers has not been infringed and a manifest intrusion into judicial power vested in courts of justice has not taken place. To put slightly differently, according to the learned Additional Solicitor General, the limited judicial review would involve an inquiry as to whether the Parliament has not exercised privileges which are really matters covered by a statute and whose adjudication would involve the exercise of judicial power conferred by a statute or the Constitution. 271. According to the learned Additional Solicitor General, the discussion with reference to Article 21 in the case of Pandit Sharma (I) proceeded upon a demurrer and, therefore, there was no scope for a full-fledged discussion on the amenability of the latter part of article 105(3) or Article 194(3) to the restrictions contained in Article 21. 272. In above context, he would refer to the case of Jatish Chandra Ghosh v. Hari Sadhan Mukherjee 1961CriLJ743 . In that case, Dr. Ghosh, a member of the legislative assembly, had published in a journal certain questions which he had put in the assembly but which had been disallowed by the Speaker. The questions disparaged the conduct of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This fund of transferred malice is unknown in the field of legislation. (Emphasis supplied) In the case of T. Venkata Reddy, the relevant observations in Para 14 read thus: 14.... the question is whether the validity of an Ordinance can be tested on grounds similar to those on which an executive or judicial action is tested. The legislative action under our Constitution is subject only to the limitations prescribed by the Constitution and to no other. Any law made by the Legislature, which it is not competent to pass, which is violative of the provisions in Part III of the Constitution or any other constitutional provision is ineffective.... While the courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motive of the Legislature in passing a statute is beyond the scrutiny of courts. Nor can the courts examine whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a claim of parliamentary privilege.... (Emphasis supplied) 276. While we have already rejected the reliance on the case mentioned above in support of the plea of exclusive cognizance vesting in the Legislature, and restriction of judicial review to the extent of finding the privilege, we find support to the case set up by the petitioners from constitutional provisions and debates thereupon which show that it is the duty of the Court to inquire into the legitimacy of the exercise of the power. Dr. B.R. Ambedkar has described Article 32 as the very soul of the Constitution - very heart of it - most important Article. That the jurisdiction conferred on this Court by Article 32 is an important and integral part of the basic structure of the Constitution of India and that no act of parliament can abrogate it or take it away except by way of impermissible erosion of fundamental principles of the constitutional scheme are settled propositions of Indian jurisprudence. 277. In the case of State of Rajasthan v. Union of India [1978]1SCR1 , while dealing with the issues arising out of communication by the then Union Home Minister to the nine States asking them to advise their res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if the rules framed under Article 118 (which corresponds to Article 208) are consistent with Part III of the Constitution then the exercise of powers, privileges and immunities is bound to be a fair exercise and Parliament can be safely attributed such an intention. 280. While it is true that there is no challenge to the Rules of Procedure and Conduct of Business in Lok Sabha and Rules of Procedure and Conduct of Business in the Council of States, as made by the two Houses of Parliament in exercise of enabling powers under Article 118(1), we are of the opinion that mere availability of Rules is never a guarantee that they have been duly followed. What we are concerned with, given the limits prescribed in Article 122(1), is not irregularity of procedure but illegalities or unconstitutionalities. 281. In the context of the discretionary power conferred on the Central Government by Section 237(b) of the Companies Act, 1956 to order an investigation into the affairs of a company in the event of the Government forming an opinion that circumstances exist suggesting, inter alia, that the business of the company is being conducted with intent to defraud its creditors, this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind to the relevant materials before it. XXX It 'must act reasonably and not capriciously or arbitrarily' and that if it were established that there were no materials on which requisite opinion could be formed, the Court could legitimately 'infer that the authority did not apply its mind to the relevant facts'. (Emphasis supplied) 284. The case of S.R. Bommai v. Union of India [1994]2SCR644 had given rise to challenge to the constitutional validity of the proclamation under Article 356 issued by the President, inter alia, ordering dissolution of the Legislative Assembly of a State, assuming to himself the functions of the Government of the State, upon declaration of satisfaction that a situation had arisen in which government of the said State cannot be carried on in accordance with the provisions of the Constitution. The matter had given rise to questions about the scope of judicial review of the satisfaction recorded by the President in such behalf. It was held through majority by the Constitution Bench (9 Judges) of this Court that the exercise of power by the President under Article 356(1) to issue such a proclamation is subject to judicial review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be abdicated by judicial process of interpretation. However, justifiability of the decision taken by the President is one of exercise of the power by the court hedged by self-imposed judicial restraint. It is a cardinal principle of our Constitution that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution. Its actions are within the confines of the powers given by the Constitution. (Emphasis supplied) At the same time he circumscribed the limits by observing, in Para 260, as under: The traditional parameters of judicial review, therefore, cannot be extended to the area of exceptional and extraordinary powers exercised under Article 356. The doctrine of proportionality cannot be extended to the power exercised under Article 356.... In Para 215, he held that: The doctrine that the satisfaction reached by an administrative officer based on irrelevant and relevant grounds and when some irrelevant grounds were taken into account, the whole order gets vitiated has no application to the action under Article 356. Judicial review of the Presidential Proclamation is not concerned with the merits of the decision, but to the manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cannot ipso facto be extended to the exercise of a constitutional power under Article 356. Having regard to the fact that this is a high constitutional power exercised by the highest constitutional functionary of the Nation, it may not be appropriate to adopt the tests applicable in the case of action taken by statutory or administrative authorities - nor at any rate, in their entirety. (Emphasis supplied) A controversy similar to the one in the case of S.R. Bommai arose before this Court in Rameshwar Prasad v. Union of India AIR2006SC980 . The questions raised once again concerned the validity of the subjective satisfaction of the President under Article 356 for issue of proclamation. Following the spirit of the judgment of S.R. Bommai, with due deference to the exceptional character of the power exercised by the President under Article 356 which cannot be treated on a par with an administrative action and so the validity whereof cannot be examined by applying the grounds available for challenge of an administrative action, this Court held that the power is not absolute but subject to checks balances and judicial review. Summary of the Principles relating to Parameter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the citizens; i. The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct; j. If a citizen, whether a non-member or a member of the Legislature, complains that his fundamental rights under Article 20 or 21 had been contravened, it is the duty of this Court to examine the merits of the said contention, especially when the impugned action entails civil consequences; k. There is no basis to claim of bar of exclusive cognizance or absolute immunity to the Parliamentary proceedings in Article 105(3) of the Constitution; l. The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other Constitutional provisions, for example Article 122 or 212; m. Articles 122(1) and Article 212(1) displace the broad doctrine of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the vice of mala fide as decision had already been taken to expel them. In this context they would refer, inter alia, to the declaration on the part of the Hon'ble Speaker, Lok Sabha on the floor of the House on 12th December 2005 that nobody would be spared . The contention is that the inquiries were sham and the matter was approached with a pre-determined disposition against all the basic cannons of fair play natural justice. 287. On the other hand, it has been argued by Shri Andhyarujina that no mala fide or ulterior motive can be attributed to the Houses of Parliament also for the reason that the impugned decisions were taken by the Houses as a whole, with utmost good faith in the interest of safeguarding the standing and reputation of Parliament. Learned Counsel would also submit that no member of either House had disputed the findings of misconduct and it was not open to anyone to question anything said or done in the House by suggesting that the actions or words were inspired by improper motives. 288. As already observed in earlier part of this judgment, the Legislature cannot ordinarily be accused of having acted for an extraneous purpose or being actuated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this context, the learned Counsel for petitioners would refer repeatedly to the evidence, in particular, of Mr. Aniruddha Bahal as adduced before the Inquiry Committee of Lok Sabha wherein he would concede certain financial gains on account of arrangements with the television channels for telecast of the programme in question. 292. We are unable to subscribe to this reasoning so as to find fault with the action that has been impugned before us. We are not concerned here with what kind of gains, financial or otherwise, those persons made as had conceived or engineered the sting operations leading to the material being brought into public domain through electronic media. This was not an area of anxiety even for the Houses of Parliament when they set about probing the matter resulting ultimately in expulsions. The sole question that was required to be addressed by the Inquiry Committees and the Legislative chambers revolved around the issue of misconduct attributed to the individual members bringing the House in disrepute. We, therefore, reject the above contention reiterating what we have already concluded, namely, that the expediency and necessity of exercise of such a power by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show that it was not a partisan Committee. The terms of reference for the Committee required it to make investigation into the allegations. 297. The conclusions reached by the Inquiry Committee and recommendations made have been accepted by passing of resolutions by the two Houses that have adopted the reports of the respective Committees. 298. Article 118 empowers each House of Parliament to make rules for regulating its procedure. The rules of the procedure of both Houses permit constitution of Committees. There is no illegality attached to constitution of a Special Committee by the Speaker, Lok Sabha for purposes of investigation into the allegations against members of the said House. The argument of ad-hoc procedure, therefore, does not appeal to us. 299. The petitioners' case is that the procedures adopted by the Committees of the two Houses were neither reasonable nor fair. Further, they contend that the entire inquiry was improper and illegal inasmuch as rules of natural justice were flouted. In this context, the grievances of the petitioners are manifold. They would state that proper opportunity was not given to them to defend themselves; they were denied th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee in the face of the refusal on the part of the concerned members was fully justified in not giving any credence to the objections that the video-clippings were doctored or morphed. The Committee in these circumstances could not be expected but to proceed to draw conclusions on the basis of the available material. 302. The reports of the Inquiry Committee of Lok Sabha and the Committee on Ethics of Rajya Sabha indicate that both of the said Committees had called for explanations from each of the Members in question and had given due consideration to the same. The submissions of the learned Counsel for Union of India that the proceedings of the respective Committees were open to one and all, including these petitioners who actually participated in the proceedings could not be refuted. Therefore, it is not permissible to the petitioners to contend that evidence had been taken behind their back. The reports further show that the Committees had taken care not to proceed on the edited versions of the video recordings. Each of them insisted and procured the raw video-footage of the different sting operations and drew conclusions after viewing the same. As pointed out by the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is some relevant material sustaining the action. We find this material was available in the form of raw footage of video recordings, the nature of contents whereof are reflected in the Inquiry reports and on which subject the petitioners have not raised any issue of fact. 306. On perusal of the Inquiry reports, we find that there is no violation of any of the fundamental rights in general and Articles 14, 20 or 21 in particular. Proper opportunity to explain and defend having been given to each of the petitioners, the procedure adopted by the two Houses of Parliament cannot be held to be suffering from any illegality, irrationality, unconstitutionality, violation of rules of natural justice or perversity. It cannot be held that the petitioners were not given a fair deal. 307. Before concluding, we place on record our appreciation for able assistance rendered by learned Counsel for the parties in the matter. 308. In view of above, we find no substance in the pleas of the petitioners. Resultantly, all the Petitions and Transferred Cases questioning the validity of the decisions of expulsion of the petitioners from the respective Houses of Parliament, being devoid of merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament under the head of privilege or law and custom of Parliament . Though all the three expressions, powers, privileges and immunities are invariably used in almost all Constitutions of the world, they are different in their meanings and also in contents. 'Power' means 'the ability to do something or to act in a particular way'. It is a right conferred upon a person by the law to alter, by his own will directed to that end; the rights, duties, liabilities or other legal relations either of himself or of other persons. It is a comprehensive word which includes procedural and substantive rights which can be exercised by a person or an authority. 'Privilege' is a special right, advantage or benefit conferred on a particular person. It is a peculiar advantage or favour granted to one person as against another to do certain acts. Inherent in the term is the idea of something, apart and distinct from a common right which is enjoyed by all persons and connotes some sort of special grant by the sovereign. 'Immunity' is an exemption or freedom from general obligation, duty, burden or penalty. Exemption from appearance before a court of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Re AIR1965SC745 , Sarkar, J. (as His Lordship then was) stated; I would like at this stage to say a few general words about powers, privileges and immunities of the House of Commons or its members. First I wish to note that it is not necessary for our purposes to make a distinction between privileges , powers and immunities . They are no doubt different in the matter of their respective contents but perhaps in no otherwise. Thus the right of the House to have absolute control of its internal proceedings may be considered as its privilege, its right to punish one for contempt may be more properly described as its power, while the right that no member shall be liable for anything said in the House may be really an immunity . 318. In 'Parliamentary Privilege - First Report' (Lord Nicholas Report), it was observed; Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their members and officers possess to enable them to carry out their parliamentary functions effectively. Without this protection members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. (Emphasis supplied) 322. Leading Authors on the Constitution have also stated that each House possesses the power to expel a member in appropriate cases. Cooley in his well-known work 'Treatise on the Constitutional Limitations', (1972 Edn., p. 133); states; Each House has also the power to punish members for disorderly behavior, and other contempt's of its authority, and also to expel a member for any cause which seems to the body to render it unfit that he continue to occupy one of its seats. This power is sometimes conferred by the constitution, but it exists whether expressly conferred or not. It is a necessary and incidental power, to enable the house to perform its high functions and is necessary to the safety of the State. It is a power of protection. A member may be physically, mentally, or morally wholly unfit; he may be affected with a contagious disease, or insane, or noisy, violent and disorderly, or in the habit of using profane, obscene, and abusive language. And independently of parliamentary customs and usages, our legislative houses h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a session of the Senate nor at the seat of government. The Supreme Court has recorded in a dictum in understanding that the expulsion power 'extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a member. (emphasis supplied) In 'American Jurisprudence', (Second Edn., Vol. 77, p. 21); it has been stated; The power of either House of Congress to punish or expel its members for cause is recognized in the Constitution which provides that each House may punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. Punishment for misbehavior may in a proper case be by imprisonment and may be imposed for failure to observe a rule for preservation of order. In the case of the Senate, the right to expel extends to all cases where the offence is such as in the judgment of the body is inconsistent with the trust and duty of a member (Chapman Re, (1896) 166 US 661 : 41 L Ed 1154). 324. Attention of the Court was also invited to certain decisions of the Supreme Court of the United States. In Chapman, Re, 166 US 661 (1891) : 41 L Ed 2nd 1154, the Supreme Court be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far from the nature and character of the act there is necessity for repression to prevent immediate recurrence, that is to say, the continued existence of the interference or obstruction to the exercise of the legislative power. Unless there is manifest and absolute disregard of discretion and a mere exertion of arbitrary power coming within the reach of constitutional limitations, the exercise of the authority is not subject to judicial interference. 329. I may also refer to a leading decision in United States v. Daniel Brewster 408 US 501 : (1972) 33 L Ed 2nd 507. Keeping in view ground reality that privileges conferred on Members of Parliament are likely to be abused, Burger, CJ stated; The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from too sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerates and protects behavior on the part of the Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process. (emphasis supplied) 330. From the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nconceivable that they cannot make rules for the orderly conduct of business. Even if they have no authority to expel a member in absence of specific provision to that effect, they may suspend disorderly members in appropriate cases. The dignity of a Colonial Parliament acting within its limits, requires no less than that of the Imperial Parliament that any tribunal to whose examination its proceedings are sought to be submitted for review should hesitate before it undertakes the function of examining its administration of the law relating to its internal affairs. (emphasis supplied) 333. It may also be stated that Odger in his 'Australian Senate Practice', (11th Edn.; p.57) observes; The recommendation, and the consequent provision in Section 8 of the 1987 Act, was opposed in the Senate. It was argued that there may well be circumstances in which it is legitimate for a House to expel a member even if the member is not disqualified. It is not difficult to think of possible examples. A member newly elected may, perhaps after a quarrel with the member's party, embark upon highly disruptive behavior in the House, such that the House is forced to suspend the mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution nor under Article 105(3) or Article 194(3) of the Indian Constitution. In spite of the above provision in the Constitution, the right of the House to expel a member has never been challenged. Sir John George Bourinot, in his work 'Parliamentary Procedure and Practice in the Dominion of Canada', (4th Edn., p.64), states; The right of a legislative body to suspend or expel a member for what is sufficient cause in its own judgment is undoubted. Such a power is absolutely necessary to the conservation of the dignity and usefulness of a body. Yet expulsion, though it vacates the seat of a member, does not create any disability to serve again in Parliament. The learned Counsel for the parties also drew our attention to certain cases from Canada. We may notice only few recent decisions. 336. In Speaker of the House of Assembly v. Canadian Broadcasting Corporation (1993) 1 SCR 319, the Broadcasting Corporation made an application to the Nova Scotia Supreme Court, Trial Division for an order allowing it to film the proceedings of the House of Assembly with its own cameras . The application was based on the Canadian Charter of Rights and Freedoms which guara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leges and took the stand that their decisions were not reviewable by any other Court or Authority. The Courts, on the other hand, treated lex parliamenti's to be part of the 'law of the land' and as such, within their judicial control. Judiciary exercised the power particularly when issues involved the rights of third party. According to Courts, their role was to interpret the law of Parliament and to apply it. 340. Holding the test of 'necessity' for privilege as 'jurisdictional test', the learned Judge stated; The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute 'parliamentary' or 'legislative' jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body. (emphasis supplied) 341. Keeping in view important roles of different branches of Government, it was observed; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasis supplied) It was, however, added that it was not to say that the courts have no role to play in the debate which arises where individual rights are alleged to conflict with parliamentary privilege. Under the British system of parliamentary supremacy, the courts arguably play no role in monitoring the exercise of parliamentary privilege. In Canada, that has been altered by the Charter of 1926. To prevent abuses cloaked in the guise of privilege from trumping legitimate Charter interests, the courts must inquire into the legitimacy of a claim of parliamentary privilege. As clarified in Canadian Broadcasting Corporation, the courts may question whether a claimed privilege exists. This screening role means that where it is alleged that a person has been expelled or disqualified on invalid grounds, the courts must determine whether the act falls within the scope of parliamentary privilege. If the court concludes that it does, no further review lies. (emphasis supplied) 343. It was also stated that British Jurisprudence makes distinction between privileges asserted by resolution and privileges effected automatically by statute. In respect of privileges asserted by resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He made a complaint to the Canadian Human Rights Commission to investigate into the matter. The Commission accepted the complaint of the employee and referred the matter to the Tribunal. The Speaker challenged the jurisdiction of the Tribunal contending that it was his power of 'hire and fire' and there was no review. The Tribunal dismissed the challenge. The Federal Court upheld the Tribunal's decision. When the matter reached the Supreme Court, the question as to applicability of privileges was raised. It was held that within categories of privilege, Parliament was the sole judge of the occasion and manner of its exercise and such exercise was not reviewable by the courts. However, the existence and scope of the privileges could be inquired into by Courts. Binnie J. stated; It is a wise principle that the courts and Parliament strive to respect each other's role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the sub judice rule. The courts, for their part, are careful not to interfere with the workings of Parliament. None of the parties to this proceeding questions the pre-eminent impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish legal history traces its roots in Magna Carta. Magna Carta had been described as a 'constitutional myth' because it was a document which came into existence on account of grievances of feudal magnates (barons) (Ann Lyon : 'Constitutional history of the United Kingdom, (2003); p.39). The Magna Carta declared that the King was not above the law. 347. In its creative sense, in England the House did not sit down to build its edifice of the powers, privileges and immunities of Parliament. The evolution of English Parliamentary institution has thus historical development. It is the story of conflict between Crown's absolute prerogatives and Commons' insistence for powers, privileges and immunities; struggle between high handed actions of Monarchs and People's claim of democratic means and methods. Parliamentary privileges are the rights which Houses of Parliament and members possess so as to enable them to carry out their functions effectively and efficiently. Some of the parliamentary privileges thus preceded Parliament itself. They are, therefore, rightly described by Sir Erskine May as 'fundamental rights' of the House as against the prerogatives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opinion of the House a member has conducted himself in a manner which renders him unfit to serve as a member of Parliament, he may be expelled, but unless the cause of his expulsion by the House constitutes in itself a disqualification to sit and vote in the House, he remains capable of re-election. (emphasis supplied) From the above statement of law, it is explicitly clear that the two things, namely, (i) expulsion; and (ii) disqualification are different and distinct. A member can be expelled by the Legislature if his conduct renders him 'unfit' to continue as such. It, however, does not ipso facto disqualify him for re-election. An expelled member may be re-elected and no objection can be raised against his re-election, as was the case of John Wilkes in 1769. O. Hood Phillips also states ('Constitutional and Administrative Law', Fourth Edition; p. 180) that the House may also expel a member, who although not subject to any legal disability, is in its opinion unfit to serve as a member. This is commonly done when the Court notifies the Speaker that a member has been convicted of a misdemeanor. The House cannot prevent an expelled member from being re-el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise on the Law, Privileges, Proceedings and Usage of Parliament'. This work has assumed the status of a classic on the subject and is usually regarded as an authoritative exposition of parliamentary practice . The attention of the Court was, however, invited to the changed approach by the Revising Authors on the power of Parliament to expel a member. It would, therefore, be appropriate if I refer to both the editions of 1983 and of 2004. 352. In Twentieth Edition by Sir Charles Gordon (1983), in Chapter 9 (Penal Jurisdiction of the Houses of Parliament), it had been stated; PUNISHMENT INFLICTED ON MEMBERS In the case of contempt's committed against the House of Commons by Members, two other penalties are available, viz. suspension from the service of the House and expulsion. In some cases expulsion has been inflicted in addition to committal. There was a sub-topic as under; Expulsion by the Commons The purpose of expulsion is not so much disciplinary as remedial, not so much to punish Members as to rid the House of persons who are unfit for membership. It may justly be regarded as an example of the House's power to regulate its own constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derogatory remarks against the Members of the House. On the basis of a complaint, the matter was referred to the Privilege Committee which found him guilty. In spite of apology tendered by him, he was committed to the Tower of London for six months, was fined and also expelled. In a subsequent case in 1707, Mr. Asquill, a Member of Parliament wrote a book wherein disparaging remarks on Christian Religion were made. Though nothing was stated by him against the House or against Members of the House, Mr. Asquill was expelled being 'unfit' as Member. Asquill thus established that the House of Commons could expel a Member for his actions even outside the House provided the House finds him unfit to be continued as a Member of Parliament. In 1819, Mr. Hobhouse, a Member of House of Commons wrote a pamphlet making the following comment; Nothing but brute force, or the pressing fear of it would reform Parliament. Contempt proceedings were initiated against Hobhouse and he was imprisoned. In 1838, Mr. O'Connell, a member of House of Commons said, outside the house of Parliament; Foul perjury in the Torry Committees of the House of Commons-who took oaths acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable. It was further stated; It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if that interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly . His Lordship concluded; In my opinion the House stands with relation to such rights and to the resolutions which affect their exercise, in precisely the same relation as we the judges of this Court stand in to the laws which regulate the rights of which we are the guardians, and to the judgments which apply them to particular cases; that is to say, they are bound by the most solemn obligations which can bind men to any course of conduct whatever, to guide their conduct by the law as they understand it. If they misunderstand it, or (I apologize for the supposition) willfully disregard it, they resemble mistaken or unjust judges; but in either case, there is in my judgment no appeal from their decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-Constitution case of Mr. Peter Arthus David Baker (1954). He was a Member of House of Commons. A competent Court of Law held him guilty of forgery and convicted and sentenced him. The factum of conviction was officially communicated by the Court to the Speaker of the House. Baker, in his letter to the Speaker of the House, expressed remorse about his conduct which was not connected with his position and status as a member of the House. He, inter alia, stated; I must end as I began, by begging the House to accept my most sincere apology. I can only assure you that my regret, remorse and repentance during the past three months were doubted by the knowledge that, in addition to my friends and colleagues elsewhere, I had also embarrassed my friends and colleagues in the House of Commons. I can only ask you and, through you, them to accept this expression of these regrets. The entire letter was read out to the House. After consideration, the following resolution was passed; Resolved, that Mr. Peter Arthus David Baker be expelled from this House. Baker proved that the House of Commons possessed and continued to possess power to expel a Member for his objectionable activi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen is reduced to this,--whether by law, the power of committing for a contempt, not in the presence of the Assembly, is incidental to every local Legislature. The Statute Law on this subject being silent, the Common Law is to govern it; and what is the Common Law, depends upon principle and precedent. Their Lordships see no reason to think, that in the principle of the Common Law, any other powers are given to them, than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment, an act which on both sides, it is admitted, it was competent for the Crown to perform. This is the principle which governs all legal incidents. Quando lex aliquid concedit, conceder videtur et illud, sine qua res ipsa esse non potest. W In conformity to this principle we feel no doubt that such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their Legislative functions, they are justified in acting by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s of their authority, have judicial functions, and exercise this as incident to those which they possess, except only the House of Commons, whose authority, in this respect, rests upon ancient usage. Their Lordships, therefore, are of opinion, that the principle of the Common Law, that things necessary, pass as incident, does not give the power contended for by the Respondents as an incident to, and included in, the grant of a subordinate Legislature. (emphasis supplied) The Council, in the light of above legal position did not approve the law laid down earlier in Beaumont v. Barrett (1836) 1 MOO PC 80, (in which such right was upheld and it was ruled that Legislative Assembly of Jamaica had inherent power to punish for contempt of the Assembly) and overruled it. It was submitted that distinguished jurists and eminent judges considered the question in Keilley and concluded that Assembly of Newfoundland had no power to commit a person for contempt which was exercised by the British Parliament. The ratio in Keilley applies with equal force to Indian Parliament and it must be held that the position of our Parliament is not different than that of Newsouthland and it also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial functions. The Judicial Committee, however, after referring to Keilley and other cases, proceeded to state; If then, the power assumed by the House of Assembly cannot be maintained by analogy to the privileges of the House of Commons, or the powers of a Court of Record, is there any other legal foundation upon which it may be rested. It has not, as both sides admit, been expressly granted. The learned Counsel for the Appellants invoked the principles of the Common Law, and as it must be conceded that the Common Law sanctions the exercise of the prerogative by which the Assembly has been created, the principles of Common Law, which is embodied in the maxim, Quando lex aliquid concedit, conceder videtur et illud, sine qua res ipsa esse non potest, applies to the body so created. The question, therefore, is reduced to this : Is the power to punish and commit for contempt for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 19, he could not be disqualified. The Court, however, negatived the contention. It observed that the case did not fall in any of the Clauses (a) to (f) of Section 19 of the Act but stated that the said section did not constitute a 'complete code' for the vacation of seat. Herron, C.J. stated. For there exist well-recognized overriding common-law principles which enlarge parliamentary power. As applying to this case the first or primary essentials may be stated thus: in the absence of express grant the Legislative Council possesses such powers and privileges as are implied by reason of necessity, the necessity which occasions the implication of a particular power or privilege is such as is necessary to the existence of the Council or to the due and orderly exercise of its functions. His Lordship further stated; This case appears to me to warrant a decision that in special circumstances there is an area of misconduct of a Member of Parliament committed outside the House and disclosed in curial proceedings which may, in special circumstances, form a basis for the exercise of the power of expulsion based upon a finding by the House that such is necessary to its e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its naval victory off Lowestoft in 1665. 1st February 1678 Thomas Wancklyn (Westbury) Corrupt misuse of the privilege of Parliament against arrest of MP's 'menial servants'. 25th March 1679 Edward Sackville (East Grinstead) Denunciation of Titus Oates as a 'lying rogue' and disbelief in the 'Popish Plot'. 28th October 1680 Sir Robert Cann, Bt. (Bristol) Statement that the attempt to exclude the Duke of York from the succession was a 'Presbyterian Plot'. 29th October 1680 Sir Francis Wythens (Westminster) Presented a petition abhorring the summons of a Parliament which would exclude the Duke of York from the succession. 14th December 1680 Sir Robert Peyton (Middlesex) Association with the Duke of York and alleged complicity in the 'Meal-Tub Plot' (attempt to implicate exclusionists in a plot to kill the King and establish a Commonwealth). 20th January 169 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ription of the new East India Company. These offices were disqualifications under the Lottery Act of 1694. 20th February 1699 Richard Wollaston (Whitchurch) Receiver-General of Taxes for Hertfordshire; this office was a disqualification under the Lottery Act of 1694. 19th February 1701 Sir Henry Furnese (Sandwich) Trustee for circulating Exchequer Bills; this office was a disqualification under the Lottery Act of 1694. 22nd February 1701 Gilbert Heathcote (City of London) Trustee for circulating Exchequer Bills; this office was a disqualification under the Lottery Act of 1694. 1st February 1703 Rt. Hon. Earl of Ranelagh (West Looe) As Paymaster-General of the Army, appropriated o?=904,138 of public funds; had severe discrepancies in his accounts, which were only made up to March 1692. 18th December 1707 John Asgill (Bramber) Indebted to three creditors (among them Colonel John Rice) for o?=10,000. Author of a book which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he was, and is, incapable of being elected a Member to serve in the present Parliament. ) 4th December 1783 Christopher Atkinson (Hedon) Convicted of perjury after swearing that accusations against him of fraud were untrue. The accusations related to his dealings with the Victualling Board, and were in a letter printed in the General Advertiser on 31st January 1781. 2nd May 1796 John Fenton Cawthorne (Lincoln) Convicted by court martial of fraud and embezzlement of the funds of the Westminster Regiment of the Middlesex Militia; cashiered for conduct unbecoming the character of an officer and a gentleman. 23rd May 1810 Joseph Hunt (Queenborough) Absconded to Lisbon after being found to have embezzled public funds as Treasurer of the Ordnance. During his term he left a deficit of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th October 1947 Garry Allighan (Gravesend) Contempt of the House of Commons: breach of privilege over article in 'World's Press News' alleging corruption and drunkenness among Members; lying to the committee investigating the allegations. 16th December 1954 Peter Arthur David Baker (Norfolk, South) Convicted of uttering forged documents. Forged signatures on letters purporting to guarantee debts in excess of o?=100,000 owed by his companies. INDIAN LAW : HISTORICAL BACKGROUND 363. It is no doubt true that the existing law relating to parliamentary privileges in India is essentially of English origin. But the concept of parliamentary privileges was not unknown to ancient India. Prititosh Roy in his work 'Parliamentary Privilege in India' (1991) states that even during Vedic times, there were two assemblies; Sabha and Samiti which were keeping check on all actions of the King. Reference of Sabha and Samiti is found in all Vedas. In Buddhist India, we find developed parliamentary system. Members were not allowed to disobey directions of Assemblies. Offenders w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a person is chosen a member both of Parliament and of a House of the Legislature of a State, then, at the expiration of such period as may be specified in rules made by the President, that person's seat in Parliament shall become vacant, unless he has previously resigned his seat in the Legislature of the State. (3) If a member of either House of Parliament- (a) becomes subject to any of the disqualifications mentioned in Clause (1) or Clause (2) of article 102, or (b) resigns his seat by writing under his hand addressed to the Chairman or the Speaker, as the case may be, and his resignation is accepted by the Chairman or the Speaker, as the case may be, -his seat shall thereupon become vacant: Provided that in the case of any resignation referred to in sub-clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Chairman or the Speaker, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation. (4) If for a period of sixty days a member of either House of Parliament is without permission of the House absent from all meetings thereof, the House may de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978. (4) The provisions of Clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament. (emphasis supplied) Articles 107-22 contain provisions as to legislative procedure. Article 118 enables both the Houses of Parliament to make Rules for regulating procedure and conduct of business. Article 121 puts restriction on discussion in Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submit that it is perfectly clear that this case is not even a case which might be called a marginal case, where people may have two opinions about it, where one may have doubts if a certain course suggested is much too severe. The case, if I may say so, is as bad as it could well be. If we consider even such a case as a marginal case or as one where perhaps a certain amount of laxity might be shown, I think it will be unfortunate from a variety of points of view, more especially because, this being the first case of its kind coming up before the House, if the House does not express its will in such matters in clear, unambiguous and forceful terms, then doubts may very well arise in the public mind as to whether the House is very definite about such matters or not. Therefore, I do submit that it has become a duty for us and an obligation to be clear, precise and definite. The facts are clear and precise and the decision should also be clear and precise and unambiguous. And I submit the decision of the House should be, after accepting the finding of this report, to resolve that the Member should be expelled from the House. A motion was then moved to expel Mr. Mudgal which was acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate or garbled version of such debates or proceedings. The latter part of Article 194(3) confers all these powers, privileges and immunities on the House of the Legislature of the States, as Article 105(3) does on the Houses of Parliament. 369. On the construction of Article 194(3), His Lordship stated; Our Constitution clearly provides that until Parliament or the State Legislature, as the case may be, makes a law defining the powers, privileges and immunities of the House of Commons as at the date of the commencement of our Constitution and yet to deny them those powers, privileges and immunities, after finding that the House of Commons had them at the relevant time, will be not to interpret the Constitution but to re-make it. Nor do we share the view that it will not be right to entrust our Houses with these powers, privileges and immunities, for we are well persuaded that our Houses, like the House of Commons, will appreciate the benefit of publicity and will not exercise the powers, privileges and immunities except in gross cases. (emphasis supplied) 370. Harmoniously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, the learned Chief Justice gave a golden advice stating; In coming to the conclusion that the content of Article 194(3) must ultimately be determined by courts and not by the legislatures, we are not unmindful of the grandeur and majesty of the task which has been assigned to the Legislatures under the Constitution. Speaking broadly, all the legislative chambers in our country today are playing a significant role in the pursuit of the ideal of a Welfare State which has been placed by the Constitution before our country, and that naturally gives the legislative chambers a high place in the making of history today. The High Courts also have to play an equally significant role in the development of the rule of law and there can be little doubt that the successful working of the rule of law is the basic foundation of the democratic way of life. In this connection it is necessary to remember that the status, dignity and importance of these two respective institutions, the Legislatures and the Judicature, are derived primarily from 'the status dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the House of Commons enjoyed at the commencement of the Constitution. The Constitution-makers must have thought that the Legislatures would take some time to make laws in respect of their powers, privileges and immunities. During the interval, it was clearly necessary to confer on them the necessary powers, privileges and immunities. There can be little doubt that the powers, privileges and immunities which are contemplated by cl. (3), are incidental powers, privileges and immunities which every Legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of Clause (3). This clause requires that the powers, privileges and immunities which are claimed by the House must be shown to have subsisted at the commencement of the Constitution, i.e., on January 26, 150. It is well-known that out of a large number o privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be claimed by the House. Therefore, it would not be correct to say that an powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House. Referring to conflict between two august organs of the State and complimenting the solution adopted by them in England, the learned Chief Justice said; It has been common ground between the Houses and the courts that privilege depends on the known laws and customs of Parliament , and not on the ipse dixit of either House. The question in dispute was whether the law of Parliament was a particular law or part of the common law in its wide and extended sense, and in the former case whether it was a superior law which overrode the common law. Arising out of this question another item of controversy arose between the courts and the Parliament and that was whether a matter of privilege should be judged solely by the House which it concerned, even when the rights of third parties were involved, or whether it might in certain cases be decided in the courts, and, if so, in what sort of cases. The points of view adopted by the Parliament and the courts appeared to be irreconcilable. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 of the King and the two Houses, is a legislative supremacy which has nothing to do with the privilege jurisdiction of either House acting singly. (2) It is admitted by both Houses that, since neither House can by itself add to the law, neither House can by its own declaration create a new privilege. This implies that privilege is objective and its extent ascertainable, and reinforces the doctrine that it is known by the courts. On the other hand, the courts Admit- (3) That the control of each House over its internal proceedings is absolute and cannot be interfered with by the courts. (4) That a committal for contempt by either House is in practice within its exclusive jurisdiction, since the facts constituting the alleged contempt need not be stated on the warra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on directly or even indirectly, it interpreted the relevant and material provisions of the Constitution relating to the powers, privileges and immunities of Parliament/State Legislature keeping in view the powers, privileges and immunities enjoyed by the British Parliament. 374. Let us now consider few High Court decisions on the point which are directly on the point. In Raj Narain v. Atmaram Govind and Anr. AIR1954All319 , the petitioner who was an elected representative of the Legislative Assembly of Uttar Pradesh wanted to move a motion in connection with forcible removal by police of three teachers who were on hunger-strike. Permission was not granted by the Speaker. The petitioner, however, continued to 'disturb' proceedings of the House and by use of 'minimum force', he was removed from the House. The Committee of Privileges considered the conduct of the petitioner and resolved to suspend him. The petitioner challenged the resolution in the High Court of Allahabad under Article 226 of the Constitution. Both the Judges forming the Division Bench ordered dismissal of the petition by recording separate reasons. Sapru, J. conceded that withdrawal of a mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicability of Clause (3) of Article 194 [similar to Clause (3) of Article 105] of the Constitution and held that to determine whether a particular privilege falls in the exceptional category or not is that as soon as a particular privilege is claimed by the Legislature and is disputed or contested, it must be inquired whether such a privilege was available to the House of Commons on January 26, 1950, and then to decide whether the said privilege is or is not compatible or consistent with the provisions of the Constitution. If it is not inconsistent with the provisions of the Constitution, it can be claimed by the Legislature under Article 194(3). It was, therefore, held that whenever it is found that the Commons did enjoy a particular privilege, power or immunity at the relevant time, it must be deemed to have been written with pen and ink in Clause (3) of Article 194, and it is only when a dispute arises whether in the nature of things the particular privilege or power can actually be expressed, claimed or enjoyed that the Court will scrutinize the matter and without deleting the same from the list hold that notwithstanding the power or privilege being there it cannot be exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten Constitution in England. (emphasis supplied) With respect, the majority was not right in coming to the aforesaid conclusion and I am unable to read legal position as envisaged by Sandhawalia, J. 377. In K. Anbazhagan and Ors. v. Secretary, Tamil Nadu Legislative Assembly, Madras and Ors. AIR1988Mad275 , some of the members of Tamil Nadu Legislative Assembly were expelled for burning the Constitution considering the conduct as unworthy of members of Legislative Assembly. The action was challenged in the High Court. A contention similar to one raised in Yeshwant Rao was raised that since the Tamil Nadu Legislative Assembly had no right to provide for its constitution or composition, it had no right to expel a member since a right to expel a member flows from a right to provide for composition of the House. The Court observed that in Keshav Singh, it was held by the Supreme Court that Indian Legislatures have no privilege to provide for its own constitution. But it rightly proceeded to consider the controversy by observing that the question was whether the power of expulsion exercised by the House of Commons was to be 'wholly and exclusively treated as a part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for contempt any person who is guilty of contempt of the provincial or even the Central Legislature, whereas the Parliament in England has the inherent right to punish for contempt. The question arose in the Dominions and the Colonies and it has been held that by reason of the wide wording in the Australian Commonwealth Act as well as in the Canadian Act the Parliament in the both places have powers similar to the powers possessed by the Parliament in England and therefore have the right to punish for contempt. Are you going to deny to yourself that power? That is the question. I will deal with the second objection. If you have the time and if you have the leisure to formulate all the privileges in a compendious form, it will be well and good. I believe a Committee constituted by the Speaker on the legislative side found very difficult to formulate all the privileges, unless they went in detail into the whole working of parliamentary institution in England and the time was not sufficient before the legislature for that purpose and accordingly the Committee was not able to give any effective advice to the Speaker in regard to this matter. I speak subject to correction because I w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction made as to the reference to the British Parliament. Under these circumstances, far from this article being framed in a spirit of servility or slavery or subjection to Britain, it is framed in a spirit of self-assertion and an assertion that our country and our Parliament are as great as the Parliament of Great Britain. It is thus clear that when draft Article 85 (Present Article 105) was considered, different view-points were before the House. It was also aware of various Constitutions, particularly, Constitutions of Canada and Australia. The Members expressed their views, made suggestions and sought amendments and finally, the draft Article 85 was approved as amended. Likewise, when draft Article 169 (Present Article 194) came up before the House on June 3, 1949, again, the matter was discussed at length. I would like to refer to in particular the considerations weighed with the House in the speech of Hon'ble the President, Dr. B.R. Ambedkar, who said; The privileges of Parliament extend, for instance, to the rights of Parliament as against the public. Secondly, they also extend to rights as against the individual members. For instance, under the House of Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot the least doubt in my mind that we will have to add not less than twenty or twenty-five pages relating to immunities and privileges of Parliament. I do not know whether the Members of this House would like to have such a large categorical statement of privileges and immunities of Parliament extending over twenty or twenty-five pages. That I think is one reason why we did not adopt that course. The other course is to say, as has been said in many places in the Constitution, that Parliament may make provision with regard to a particular matter and until Parliament makes that provision the existing position would stand. That is the second course which we could have adopted. We could have said that Parliament may define the privileges and immunities of the members and of the body itself, and until that happens the privileges existing on the date on which the Constitution comes into existence shall continue to operate. But unfortunately for us, as honourable Members will know, the 1935 Act conferred no privileges and no immunities on Parliament and its members. All that it provided for was a single provision that there shall be freedom of speech and no member shall be prosecuted f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rliest conflicts between Parliament and the Courts were about the relationship between the lex parliamenti and the common law of England. Both Houses argued that under the former, they alone were the judges of the extent and application of their own privileges, not examinable by any court or subject to any appeal. The courts, on the other hand, professed judicial ignorance of the lex parliamenti. After some time, however, they recognized it, but as a part of the Law of England and, therefore, wholly within the judicial notice. In the middle of the nineteenth century, the conflict, to the large extent, had been resolved. Out of both the claims, (i) whether a privilege existed; and (ii) whether it had been breached, Parliament yielded the first to the courts. In turn, courts recognized right of the House to the second. 380. The question was also considered by Anson ('The Law and Custom of the Constitution', Fifth Edition; Vol. I; pp. 190-99). The learned author considered the causes of conflict between Houses and Courts. He noted that the House had asserted that 'it is the sole judge of the extent of its privileges' and the Court had no jurisdiction in the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement on the respective spheres of the two Houses and the courts has, since the mid-nineteenth century, prevented the direct conflicts of earlier years. Although the Houses have never directly admitted the claim of the courts of law to adjudicate on matters of privilege, they appear to recognize that neither House is by itself entitled to claim the supremacy which was enjoyed by the undivided High Court of Parliament. For their part the courts of law acknowledge that the control of each House over its own proceedings is absolute and not subject to judicial jurisdiction; and the courts will not interfere with the interpretation of a statute by either House so far as the proceedings of the House are concerned. Neither will the courts inquire into the reasons for which a person has been adjudged guilty of contempt and committed by either House, when the order or warrant upon which he has been arrested does not state the causes of his arrest; for in such cases it is presumed that the order or warrant has been duly issued unless the contrary appears upon the face of it. Holdsworth, in 'A History of English Law' (Vol. I; pp. 393-94) rightly observed; There are two max ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceded (and I may say, rightly) the jurisdiction of this Court to consider such complaint, but submitted that the Court must always keep in mind the fact that the power has been exercised by a co-ordinate organ of the State which has the jurisdiction to regulate its own proceedings within the four walls of the House. Unless, therefore, this Court is convinced that the action of the House is unconstitutional or wholly unlawful, it may not exercise its extraordinary jurisdiction by re-appreciating the evidence and material before Parliament and substitute its own conclusions for the conclusions arrived at by the House. 383. In my opinion, the submission is well-founded. This Court cannot be oblivious or unmindful of the fact that the Legislature is one of three organs of the State and is exercising powers under the same Constitution under which this Court is exercising the power of judicial review. It is, therefore, the duty of this Court to ensure that there is no abuse or misuse of power by the Legislature without overlooking another equally important consideration that the Court is not a superior organ or an appellate forum over the other constitutional functionary. This Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and no organ of the State (Legislature, Executive or Judiciary) can claim sovereignty or supremacy over the other. Under the said Constitution, power of judicial review has been conferred on higher judiciary (Supreme Court and High Courts). The said power is held to be one of the 'basic features' of the Constitution and, as such, it cannot be taken away by Parliament, even by an amendment in the Constitution. [Vide Sambamurthy v. : State of A.P. (1987)ILLJ221SC ; Kesavananda Bharti v. State of Kerala AIR1973SC1461 ; Indira Nehru Gandhi v. Raj Narain [1976]2SCR347 ; Minerva Mills Ltd. V. Union of India [1981]1SCR206 ; L. Chandra Kumar v. Union of India (1987)ILLJ128SC , Kihoto Hollohon v. Zachilhu [1992]1SCR686. It has, therefore, been held in several cases that an action of Parliament/State Legislature cannot claim 'total immunity' from judicial review. In fact, this argument had been put forward in Keshav Singh which was negatived by this Court. It was opined that an aggrieved party may invoke the jurisdiction of the High Court under Article 226 or of the Supreme Court under Article 32 of the Constitution. That, however, does not mean that while exercising ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by its members. In exercise of that power, it can suspend a member as also expel him, if the circumstances warrant or call for such action. It has nothing to do with disqualification and/or vacation of seat. In fact, a question of expulsion arises when a member is not disqualified, his seat has not become vacant and but for such expulsion, he is entitled to act as a member of Parliament. PARLIAMENT HAS NO CARTE BLANCHE POWER 387. The counsel for the petitioners submitted that every power has its limitations and power conferred on Parliament is not an exception to this rule. It has, therefore, no absolute right to take any action or make any order it likes. It was stated that this Court has accepted this principle in several cases by observing that absolute power is possible 'only in the moon' [vide Ahmedabad St. Xavier's College Society and Anr. v. State of Gujarat and Anr. [1975]1SCR173 . I admit my inability to express any opinion on the larger issue. But I have no doubt and I hold that Parliament, like the other organs of the State, is subject to the provisions of the Constitution and is expected, nay, bound to exercise its powers in consonance with the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questioned in a legal manner except in a Court? Therefore, the only place where the proceedings of Parliament can be questioned in a legal manner and legal sanction obtained is the Court. (emphasis supplied) Reference was also made to Pandit M.S.M. Sharma v. Shree Krishna Sinha and Ors. (Pandit Sharma II) [1961]1SCR96 , wherein a Bench of eight Hon'ble Judges of this Court held that the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed . 390. In Keshav Singh also, this Court reiterated the above proposition of law and 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 Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; of Article 122(1) of the Constitution and this Court cannot interfere with the decision in view of the constitutional protection granted by the said provision. 393. Neither the Committee appointed by Parliament can be said to be a 'Court' stricto sensu, nor it is bound by technical rules of evidence or procedure. It is more in the nature of 'fact-finding' inquiry. Since the dignity, decorum and credibility of Parliament was at stake, the Committee was appointed which was required to act with a view to restore public faith, confidence and honour in this august body without being inhibited by procedural impediments. 394. In this connection, it is profitable to refer to Mudgal. In that case also, a Committee was appointed to inquire into charges leveled against a member of Parliament. Certain directives were issued to the Committee. Directive No. 2 issued by the Speaker was relevant and read thus; The Committee on the Conduct of a Member that has been constituted is a Court of Honour and not a Court of Law in the strict sense of the term. It is therefore not bound by technical rules. It has to mould its procedure so as to satisfy the ends of justice and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en members and their oral evidence and also the oral evidence of Shri Aniruddha Bahal, Kumar Badal and Ms. Sushasini Raj of Cobrapost.Com who conducted the 'Operation Duryodhan'. 33. The Committee note that the concerned representatives of the Portal Cobrapost.Com namely Shri Aniruddha Bahal, Ms. Suhasini Raj and Shri Kumar Badal approached the members posing as representatives of a fictitious company, through a number of middlemen, some of whom were also working as Private Secretaries/Personal Assistants of the members concerned. They requested the members to raise questions in Lok Sabha and offered them money as a consideration thereof. Money was accepted by the members directly and also through their Private Secretaries. They deposed on oath that in the money sequences shown on TV Channel Aaj Tak there was no misrepresentation. They have also given to the Committee the raw footage covering the situation before and after the scene in question. While the Aaj Tak clippings have gone through video cleaning and sound enhancement, corresponding thereto are extended versions of unedited raw footage of the tapes to make it apparent that nothing had been misrepresented. Beside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o tapes there could have been scope for some adverse inference about the authenticity of the money sequences as telecast by Aaj Tak. But that is not so. 37. The Committee are also of the view that the plea put forth by the said ten members that the video footages are doctored/morphed/edited has no merit. If the members had accepted the offer of the Committee to view the relevant footage and pointed out the interpolated portions in the tape, there would have been justification for allowing their plea for more time for examining the whole tapes. Having seen the unedited raw footage of the Cobrapost.com pertaining to some of the members, the Committee have no valid reason to doubt the authenticity of the video footages. 38. In view of the totality of the facts and circumstances of the case, the Committee are of the opinion that the allegations of accepting money by the said ten members have been established. The Committee further note that it is difficult to escape the conclusion that accepting money had a direct connection with the work in Parliament. 39. The Committee feel that such conduct of the said members was unbecoming of members of Parliament and also unethical. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their parliamentary conduct is a breach of privilege. Thus, offering to a member a bribe or payment to influence him in his conduct as a member, or any fee or reward in connection with the promotion of or opposition to, any Bill, resolution, matter or things submitted or intended to be submitted to the House or any Committee thereof, should be treated as a breach of Code of Conduct. Further, any offer of money, whether for payment to an association to which a member belongs or to a charity, conditional on the member taking up a case or bringing it to a successful conclusion, is objectionable. Offer of money or other advantage to a member in order to induce him to take up an issue with a Minister may also constitute a breach of Code. Similarly, acceptance of inducements and gratification by members for putting questions in the House or for promotion of or opposition to any Bill, resolution or matters submitted to the House or any Committee thereof involves the privileges and contempt proceedings. The privilege implications apart, the Committee is constrained to observe that such attempts and acts are basically unethical in nature. 45. The Committee are, therefore, deeply d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rifying that it was not a 'dissent note'), to seek opinion of this Court under Article 143(1) of the Constitution. The House agreed with the recommendation and expelled Dr. Lodha. A notification was issued on December 23, 2005 notifying that Dr. Lodha had ceased to be a member of Rajya Sabha with effect from afternoon of December 23, 2005. ISSUE : WHETHER PRE-JUDGED 397. One of the grievances of the petitioners is that the issue had already been pre-judged even before a Committee was appointed by Parliament. In support of the said complaint, the counsel drew the attention of the Court to a statement by the Hon'ble Speaker of Lok Sabha on December 12, 2005; No body would be spared. An attempt was made that the Hon'ble Speaker, even before the constitution of Committee had proclaimed that the petitioners would not be spared. Appointment of Committee, consideration of allegations and recording of findings were, therefore, in the nature of an 'empty formality' to 'approve' the tentative decision taken by the Hon'ble Speaker and for that reason also, the action is liable to be interfered with by this Court. 398. In my opinion, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our walls of the House. At the most, therefore, it was a 'moral wrong' but cannot fall within the mischief of 'legal wrong' so as to empower the House to take any action. According to the petitioners, 'moral obligations' can neither be converted into 'constitutional obligations' nor non-observance thereof would violate the scheme of the Constitution. No action, therefore, can be taken even if it is held that the allegations were well-founded. 400. I am unable to uphold the contention. It is true that Indian Parliament is not a 'Court'. It cannot try anyone or any case directly, as a court of justice can, but it can certainly take up such cases by invoking its jurisdiction concerning powers and privileges. Dealing with 'Corruption or impropriety', Sir Erskine May stated; The acceptance by a Member of either House of a bribe to influence him in his conduct as a Member, or of any fee, compensation or reward in connection with the promotion of or opposition to any bill, resolution, matter or thing submitted or intended to be submitted to either House, or to a committee, is a contempt. Any person who is found to have offered such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. If they do, two consequences are apt to result. First, the functioning of the legislature may be impaired. Second, public confidence in the legislature and the government may be undermined. No democracy can afford either. (emphasis supplied) DOCTRINE OF PROPORTIONALITY 403. It was contended that expulsion of a member of Parliament is a drastic step and even if the House possesses such power, it cannot be lightly restored to. It is against the well established principle of proportionality. According to the petitioners, such a step would do more harm to the constituency than to the member in his personal capacity. It was, therefore, submitted that proper exercise of power for misbehavior of a member is to suspend him for the rest of the day, or at the most, for the remaining period of the session. If a folly has been committed by some members, the punishment may be awarded to them but it must be commensurate with such act which should not be severe, too harsh or unreasonably excessive, depriving the constituency having its representation in the House. 404. Now, it cannot be gainsaid that expulsion of a member is a grave measure and normally, it should not be taken. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SIBILITY OF MISUSE OF POWER BY PARLIAMENT 406. Finally, it was strenuously urged that Parliament/ State Legislature should not be conceded such a drastic power to expel a member from the House. As Mainland has stated, it is open to Parliament to expel a member on the ground of 'ugly face'. Even in such case, no Court of Law can grant relief to him. Considering ground-realities and falling standards in public life, such an absolute power will more be abused than exercised properly. I am unable to accept the submission. Even in England, where Parliament is sovereign and supreme and can do everything but 'make woman a man and a man a woman', no member of Parliament has ever been expelled on the ground of 'ugly face'. And not even a single incident has been placed before this Court to substantiate the extreme argument. Even Maitland himself has not noted any such instance. On the contrary, he had admitted that normally, the power of expulsion can be exercised for illegalities or misconduct of a serious nature. 407. Again, it is well-established principle of law that the mere possibility or likelihood of abuse of power does not make the provision ultra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs. During the fourteen years that the Constitution has been in operation, the Legislatures have not done anything to justify the view that they do not deserve to be trusted with power. I would point out that though Article 211 is not enforceable, the Legislatures have shown an admirable spirit of restraint and have not even once in all these years discussed the conduct of Judges. We must not lose faith in our people, we must not think that the Legislatures would misuse the powers given to them by the Constitution or that safety lay only in judicial correction. Such correct may produce friction and cause more harm than good. In a modern State it is often necessary for the good of the country that parallel powers should exist in different authorities. It is not inevitable that such powers will clash. It would be defeatism to take the view that in our country men would not be available to work these powers smoothly and in the best interests of the people and without producing friction. I sincerely hope that what has happened will never happen again and our Constitution will be worked by the different organs of the State amicably, wisely, courageously and in the spirit in which the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the Hon. Leader of the Opposition, and all have agreed that the matter is extremely serious if proved to be correct. I shall certainly ask the Hon. Members to explain what has happened. In the meantime, I am making a personal request to all them 'please do not attend the Sessions of the House until the matter is looked into and a decision is taken'.... I have no manner of doubt that all sections of the House feel deeply concerned about it. I know that we should rise to the occasion and we should see that such an event does not occur ever in future and if anybody is guilty, he should be punished. Nobody would be spared. We shall certainly respond to it in a manner which behaves us. Thank you very much. On the same day, at about 6 P.M., the Hon'ble Speaker made another statement on the issue, announcing the constitution of an Enquiry Committee consisting of five Parliamentarians. Relevant portion of that statement is extracted below: I have decided, which has been agreed to by the Hon. Leaders, that all the concerned Members will be asked to submit their individual statements/explanations regarding the allegations made against them today on the TV Channel Aaj T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was accepted by the members directly or through their Secretaries/Assistants. Acceptance of money by the ten members was thus established. b) The plea put forth by the ten members that the video footages were morphed/manipulated has no merit. Their conduct was unbecoming of members of Parliament, unethical and called for strict action. c) Stern action also needs to be taken against the middlemen, touts and persons masquerading as Private Secretaries of members since they are primarily responsible for inducting members of Parliament into such activities. 416. The Committee was of the view that in the case of misconduct by the members or contempt of the House by the members, the House can impose any of the following punishments : (i) admonition; (ii) reprimand; (iii) withdrawal from the House; (iv) suspension from the House; (v) imprisonment; and (vi) expulsion from the House. The Committee concluded that continuance of the ten persons as members of Lok Sabha was untenable and recommended their expulsion. On 23.12.2005, the Leader of the House moved the following Motion in the House : That this House having taken note of the Report of the Committee to inquire into the al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is comments by 1 P.M. on 15.12.2005. Thereafter the Committee gave a report holding that the member had contravened Part V of the Code of Conduct and had acted in a manner which seriously impaired the dignity of the House and brought the whole institution of Parliamentary democracy into disrepute. The Committee recommended Dr. Lodha to be expelled from the membership of the House. On 23.12.2005, the Chairman of the Ethics Committee moved that its final report be accepted. After debate, the House agreed with the recommendation in the report by voice vote. As a consequence, the Secretary General of Rajya Sabha issued a notification dated 23.12.2005 declaring that Dr. Lodha had ceased to be a member of the Rajya Sabha with effect from that date. The Issue: 418. The petitioners contend that there can be cessation of membership of either House of Parliament only in the manner provided in Articles 101 and 102; and that cessation of membership by way of expulsion is alien to the constitutional framework of Parliament. It is submitted that a person can be disqualified for being a member of Parliament on the ground of corruption, only upon conviction for such corruption as contemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cannot fold its hands in despair and declare Judicial hands off. So long as a question arises whether an authority under the constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so.... This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law. Where there is manifestly unauthorized exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of Government, is committed the conservation and furtherance of democratic values. The Court's task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Court... The Court cannot and should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by a written constitution and it does not possess the sovereign powers of the British Parliament. The limits of the powers of delegation in India would therefore have to be ascertained as a matter of construction from the provisions of the Constitution itself. [emphasis supplied] In Special Reference No. 1 of 1964 - UP Assembly Case 1965 (1) SCR 413, a Bench of seven Judges observed thus: In England, Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognized by the law of England is having a right to override or set aside the legislation of Parliament; and that the right or power of Parliament extends to every part of the Queen's dominion. On the other hand, the essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies which are co-ordinate with and independent of each others . The supremacy of the constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government above or beyond it. Every organ of Government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. [emphasis supplied] In Sub-Committee on Judicial Accountability v. Union of India AIR1992SC320 , a Constitution Bench of this Court held : But where, as in this country and unlike in England, there is a written Constitution which constitutes the fundamental and in that sense a higher law and acts as a limitation upon the legislature and other organs of the State as grantees under the constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of 'limited government'. Judicial Review is, indeed, an incident of and flows from this concept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authority under the Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State. It is to be noted that the British Parliament with the Crown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words was justly regarded by the Commons as fundamental privilege. It is hardly necessary to point out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder and the privilege of impeachment cannot be claimed by the House. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of a Parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualification of its members in cases of doubt. This privilege again, admittedly, cannot be claimed by the House. Therefore, it would not be correct to say that all power and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House. 426. In Chhabildas Mehta v. The Legislative Assembly, Gujarat State (1970)11GLR729 , a Division Bench of Gujarat High Court speaking through Chief Justice Bhagwati (as he then was) held: The problem before us is whether the privilege can be read in Article 194(3). It is no answer to this problem to say 'read the privilege in Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner forthrightly argued that some of the parliamentary privileges of the House of Commons by their very nature are so inherently alien to our Republican Constitution that they can never possibly be deemed to be part Thereof.... It was submitted that the only reasonable and consistent canon of construction in this situation was that all the parliamentary privileges of the House of Commons which in their very essence and by their intrinsic nature were patently contradictory to the Indian Constitution, then these must necessarily be excluded there from at the very threshold. (238) I believe, that the fallacy of the argument on behalf of the respondent is highlighted, the moment one particularizes the same and refers to some of the well-known and admitted privileges of the House of Commons. It was conceded before us that not one but innumerable parliamentary powers and privileges of the House of Commons were inextricably linked with the Sovereign, that is, King or Queen of England, as the case may be. Can one imagine that the word 'King' or 'Queen' mentioned therein should be deemed to have been written in pen and ink in our Constitution also when its very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d right to pass judgment during the course of impeachment. Can one for a moment read such a power or privilege in favour of the State Legislatures in India? (240) I am of the view that it is essentially tautologies to first read something into the Constitution and in the next breath to proceed to erase the same. This exercise becomes inevitable, if, as suggested on behalf of the respondents, one is to first read the King, the Queen, the House of Lords or the Acts of Attainder into the Constitution and thereafter to proceed to nullify them on the plain ground that by the very nature of things they cannot form part of a Republican Constitution. The pen and ink theory, therefore, in effect becomes indeed a pen, ink and India Rubber theory whereby one first writes something entirely alien to the Constitution within it and the next moment proceeds to rub it off. It is well-settled that when a statute includes something in it by a reference to another provision then only that can be deemed to be included which is compatible with the parent provision. To my mind, therefore, the plain method of construing Article 194(3) is the usual and the settled one of not reading something into it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the fabric of our Constitution their reach and their complexion underwent changes. Therefore, valuable as the American decisions are as showing how the question is dealt with in sister Federal Constitution great care should be taken in applying them in the interpretation of our Constitution. The note of caution was reiterated in Atiabari Tea Co. Ltd. v. State of Assam [1961]1SCR809 and Automobile Transport Ltd. v. State of Rajasthan [1963]1SCR491 , U.P. Assembly case (supra), and several other subsequent decisions. Provisions of Indian Constitution : 430. Chapters I, II and IV of Part V relate to Executive, Parliament and Union Judiciary. Detailed reference is necessary to the provisions of Chapter II dealing with Parliament. 431. Article 79 relates to Constitution of Parliament and provides that there shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People. Article 80 provides that the composition of Council of States shall be made up of twelve members nominated by the President and not more than 238 representatives of the States and Union Territories. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, and requires the Parliament to make a provision by law for the vacation by a person who is chosen as member of both Houses, of his seat in one House or the other. Clause (2) bars a person from being a member both of Parliament and of a House of the Legislature of a State. It provides that if a person is chosen as a member both of Parliament and of a House of the Legislature of a State, then at the expiry of such period as may be specified in the rules made by the President, that person's seat in Parliament shall become vacant unless he has previously resigned his seat in the Legislature of the State. Clause (3), which is relevant, reads thus: (3) If a member of either House of Parliament - a) becomes subject to any of the disqualifications mentioned in Clause (1) or Clause (2) of Article 102; or b) resigns his seat by writing under his hand addressed to the Chairman or Speaker, as the case may be, and his resignation is accepted by the Chairman or the Speaker, as the case may be, his seat shall thereupon become vacant. Clause (4) provides that if for a period of 60 days, a member of either House of Parliament is without permission of the House absent from all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oming into force of Section 15 of Constitution (Forty Forth Amendment) Act, 1978 in Clause (3) of Articles 105 and 194 have replaced the earlier words shall be those of the House of Commons of Parliament of the United Kingdom, and of its members and Committees, at the commencement of the Constitution . The position even after amendment is the same as the position that existed at the commencement of the Constitution. 437. The other provisions of Chapter II, relating to Parliament also require to be noticed. Article 106 relates to salaries and allowances of members. Articles 86 to 88 relate to the rights of the President, Ministers and Attorney General to address the Houses. Articles 89 to 98 relate to the officers of Parliament. Article 99 provides for oath of office and Article 100 provides for voting in Houses. Articles 107 to 111 relate to legislative procedure. Article 107 contains the provisions as to introduction and passing of Bills. Article 108 relates to joint sitting of both Houses in certain cases. Article 109 relates to special procedure in respect of Money Bills. Article 110 defines Money Bills . Article 111 requires the presentation of Bills passed by the Houses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on questions of disqualification, powers, privileges and immunities of the Parliament, its Members and Committees, manner of conducting business, the procedure to be adopted by the Parliament in regard to the enactment of laws, persons who can address the Parliament, the language to be used, and the Officers of the Parliament. The entire field in regard to the legislature is covered fully in the following manner : Subject (Parliament) Articles (State Legislature) Articles Constitution Composition of Houses and election/nomination of members 79 to 82 168 to 171 Duration of Houses and Tenure of Office of Members 83 172 Sessions, Prorogation and dissolution 85 174 Qualification for Membership 84 173 Cessation of membership (Disqualifications for being chosen as, and for being a member, and vacancies) and decision on questions of disqualification 102, 101 103 192, 190 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l constitutional functionaries with reference to the States. Article 156(1) relates to Governor, Article 164(1) relates to Ministers, Article 165(3) relates to Advocate General, Article 179 relates to Speaker and Deputy Speaker, Article 183 relates to Chairman and Deputy Chairman of Legislative Council, Articles 190 to 192 relate to Members of Legislatures and Article 217 relates to High Court Judges. Whether Articles 101 and 102 are exhaustive of the circumstances in which there will be cessation of membership? 440. The word 'disqualified' means to 'make ineligible' or debarred. It also means divested or deprived of rights, powers or privileges. The term 'expel' means to deprive a person of the membership or participation in any 'body' or 'organization' or to forcibly eject or force a person to leave a building premises etc. The enumeration of disqualifications is exhaustive and specifies all grounds for debarring a person from being continuing as a member. The British Parliament devised expulsion as a part of its power to control its constitution, (and may be as a part of its right of self-protection and self-preservation) to get ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iously used the word disqualification, both for 'being chosen as a member' and for 'being a member'. That means that when a member becomes disqualified as mentioned in Article 102, he becomes disentitled to continue as a Member of the House. 443. Article 101 specifically provides the circumstances in which a seat of Member of Parliament becomes vacant - (a) when a person is member of both Houses of Parliament; (b) when a person is elected both as a Member of Parliament and also as a Member of the State Legislature, and does not resign his seat in the legislature of a State within the time specified; (c) when a person becomes subject to any of the disqualifications mentioned in Clause (1) or Clause (2) of Article 102; (d) when he resigns his seat and his resignation is accepted. (e) when a member is absent from all meetings for a period of 60 days without permission of the House and the House declares his seat as vacant. 444. An analysis of Article 101 shows that the Constitution makers provided specifically for three types of vacancies : (i) Occurrence of vacancies, for reasons specifically stated in the Constitution itself (vide Clauses (2) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess provisions in the Constitution, can fall under 'other powers, privileges and immunities' of the House mentioned in Article 105(3). 448. We have also noticed above that the Constitution makes express provisions for election/appointment and removal/cessation of service of the Executive (President and Vice-President), Judiciary (Judges of the Supreme Court and High Court) and all other constitutional functionaries (Attorney General, Auditor and Comptroller General, Chief Election Commissioner etc.). It is therefore inconceivable that the Constitution-makers would have omitted to provide for 'expulsion' as one of the methods of cessation of membership or consequential vacancy, if it intended to entrust such power to the Parliament. 449. In view of the express provisions in the Constitution, as to when a person gets disqualified to be a member of either House of Parliament (and thereby ceases to be a member) and when a consequential vacancy arises, it is impermissible to read a new category of cessation of membership by way of expulsion and consequential vacancy, by resorting to the incidental powers, privileges and immunities referred to in Article 105. 450 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly is what the Constitution intends. 452. I am, therefore, of the considered view that there is no power of expulsion in the Parliament, either inherent or traceable to Article 105(3). Expulsion by the House will be possible only if Article 102 or Article 101 is suitably amended or if a law is made under Article 102(1)(e) enabling the House to expel a member found unworthy or unfit of continuing as a member. The first question is thus answered in the affirmative. Therefore the second question does not survive for consideration. 453. In view of the above, I hold that the action of the two Houses of Parliament, expelling the petitioners is violative of Articles 101 to 103 of the Constitution and therefore invalid. Petitioners, therefore, continue to be Members of Parliament (subject to any action for cessation of their membership). Petitions and transferred cases disposed of accordingly. Kaul and Shakhder after referring to conflicting decisions of the High Courts of Madhya Pradesh and Punjab Haryana, state; There are, therefore, two decisions and the position is uncertain. In the absence of a decision by the Supreme Court, neither decision is a declared law under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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