Ram Pal Vs. The Hon'ble Speaker, Lok Sabha & Ors  Insc 23 (10 January
V. Raveendran with Tc (C) Nos. 82/2006, 83/2006, 84/2006, 85/2006, 86/2006,
87/2006, 88/2006, 89/2006, 90/2006 and Wp (C) No. 129/2006. Raveendran J.,
three great institutions the Parliament, the Press (Media) and the Judges are
safeguards of justice and liberty, and they embody the spirit of the
Constitution." - Lord Denning I have had the privilege of reading the
exhaustive and erudite judgment of the learned Chief Justice and the
illuminating concurring judgment of learned Brother Thakker J., upholding the
expulsion of ten members of Lok Sabha and one member of Rajya Sabha. I
On 12.12.2005, a
TV News Channel - Aaj Tak showed some video- footage of some persons, alleged
to be members of Parliament accepting money for tabling questions or raising
issues in the House, under the caption 'operation Duryodhana' ("Cash for
Questions"). On the same day when the House met, the Hon'ble Speaker made
the following statement :- "Hon. Members, certain very serious events have
come to my notice as also of many other Hon. Members. It will be looked into
with all importance it deserves. I have already spoken to and discussed with all
Hon. Leaders of different parties, including the Hon. Leader of the Opposition,
and all have agreed that the matter is extremely serious if proved to be
correct. I shall certainly ask the Hon. Members to explain what has happened.
In the meantime, I am making a personal request to all them 'please do not
attend the Sessions of the House until the matter is looked into and a decision
is taken' I have no manner of doubt that all sections of the House feel deeply
concerned about it. I know that we should rise to the occasion and we should
see that such an event does not occur ever in future and if anybody is guilty,
he should be punished. Nobody would be spared. We shall certainly respond to it
in a manner which behaves us. Thank you very much." On the same day, at
about 6 P.M., the Hon'ble Speaker made another
statement on the issue, announcing the constitution of an Enquiry Committee
consisting of five Parliamentarians. Relevant portion of that statement is
extracted below :
have decided, which has been agreed to by the Hon. Leaders, that all the
concerned Members will be asked to submit their individual
statements/explanations regarding the allegations made against them today on
the TV Channel Aaj Tak before 10.30 a.m. on 14th December, 2005. The statements/explanations
given by those members will be placed before the Enquiry Committee consisting
of the following Hon.
Shri Pawan Kumar
Prof. Ram Gopal Yadav
Thiru C. Kuppusami
The Committee is requested to give its Report by 4 p.m. on 21st
December, 2005. The
Committee is authorized to follow its own procedure. The Report will be
presented before the House for its consideration.
The Lok Sabha
Secretariat sent communications dated 12.12.2005 to the ten members calling for
their comments in regard to the improper conduct shown in the video footage.
They were also instructed not to attend the sitting of the House till the
matter was finally decided. The members submitted their responses and denied
any wrong doing on their part. The Speaker secured VCDs containing the video
footage showing 'improper conduct' from the News Channel. The ten members were
supplied copies thereof. The Enquiry Committee examined on oath Shri Aniruddha Bahl,
Ms. Suhasini Raj and Shri Kumar Badal of the Portal "Cobrapost.Com"
who had carried the sting operation. The Committee viewed all the VCDs
containing the relevant video footage as also the unedited raw video footage
and perused the transcripts. The ten members alleged that the video tapes were
morphed/manipulated, but, however, refused to view the video clippings in the
presence of the Committee and point out the portions which according to them
were morphed/manipulated. They were not given any opportunity to cross-examine
the sting operators, nor granted copies of the entire unedited video footage
and other documents requested by them.
considering the said material, the committee submitted its report dated
22.12.2005 to the Speaker. It was tabled in the House on the same day.
said report contained the following findings :
representatives of the Portal "Cobrapost.com" namely Shri Aniruddha Bahal,
Ms. Suhasini Rajand and Shri Kumar Badal approached the members posing as
representatives of the fictitious company, through a number of middlemen, some
of whom were working as Private Secretaries/Personal Assistants of the members
concerned. They requested the members to raise questions in Lok Sabha and
offered them money as consideration. Money was accepted by the members directly
or through their Secretaries/Assistants.
of money by the ten members was thus established.
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.
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.
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
the House. The Committee concluded that continuance of the ten persons as
members of Lok Sabha was untenable and recommended their expulsion.
23.12.2005, the Leader of the House moved the following Motion in the House :
this House having taken note of the Report of the Committee to inquire into the
allegations of improper conduct on the part of some members, constituted on
12th December, 2005, accepts the finding of the Committee that the conduct of
the ten members of Lok Sabha namely, Shri Narendra Kumar Kushawaha, Shri Annasaheb
M. K. Patil, Shri Manoj Kumar, Shri Y. G. Mahajan, Shri Pradeep Gandhi, Shri
Suresh Chandel, Shri Ramsevak Singh, Shri Lal Chandra Kol, Shri Rajaram Pal and
Shri Chandra Pratap Singh was unethical and unbecoming of members of Parliament
and their continuance as members of Lok Sabha is untenable and resolves that
they may be expelled from the membership of Lok Sabha." An amendment to
the Motion for referring the matter to the Privileges Committee, moved by a
member (Prof. Vijay Kumar Malhotra), was rejected. After a debate, the Motion
was adopted by voice vote. As a consequence on the same day, a notification by
the Lok Sabha Secretariat was issued notifying that 'consequent on the adoption
of a Motion by the Lok Sabha on the 23rd December, 2005 expelling the ten
members from the membership of the Lok Sabha', the ten members ceased to be
members of the Lok Sabha, with effect from the 23rd December, 2005
Similar are the
facts relating to Dr. Chhattrapal Singh Lodha, Member of Rajya Sabha. On
12.12.2005, the Chairman of the Rajya Sabha made a statement in the House that
the dignity and prestige of the House had suffered a blow by the incidents
shown on the TV Channel, that it was necessary to take action to maintain and
protect the integrity and credibility of the House, and that he was referring
the episode to the Ethics Committee for its report. On the same day, Ethics
Committee held a meeting and took the view that the member had prima facie
contravened Part V of the Code of Conduct which provided :
should never expect or accept any fee, remuneration or benefit for a vote given
or not given by them on the floor of the House, for introducing a Bill, for
moving a resolution or desisting from moving a resolution, putting a question
or abstaining from asking a question or participating in the deliberations of
the house or a Parliamentary Committee." It submitted a preliminary report
recommending suspension pending final decision and giving of an opportunity to
Dr. Lodha to explain his position.
said report was accepted. By letter dated 13.12.2005. Dr. Lodha was required to
give his comments by 1
P.M. on 15.12.2005.
Thereafter the Committee gave a report holding that the member had contravened
Part V of the Code of Conduct and had acted in a manner which seriously
impaired the dignity of the House and brought the whole institution of
Parliamentary democracy into disrepute. The Committee recommended Dr. Lodha to
be expelled from the membership of the House. On 23.12.2005, the Chairman of
the Ethics Committee moved that its final report be accepted. After debate, the
House agreed with the recommendation in the report by voice vote. As a
consequence, the Secretary General of Rajya Sabha issued a notification dated
23.12.2005 declaring that Dr. Lodha had ceased to be a member of the Rajya Sabha
with effect from that date.
contend that there can be cessation of membership of either House of Parliament
only in the manner provided in Articles 101 and 102; and that cessation of
membership by way of expulsion is alien to the constitutional framework of
Parliament. It is submitted that a person can be disqualified for being a
member of Parliament on the ground of corruption, only upon conviction for such
corruption as contemplated under section 8 of Representation of People Act,
1951 read with clause (1)(e) of Article 102. It is submitted that there can be
no additions to grounds for cessation of membership under Articles 101 and 102,
unless it is by a law made by Parliament as contemplated under Article 102(1)(e),
or by an amendment to the Constitution itself. It is further submitted that
reading the power of expulsion, as a part of parliamentary privilege under
Article 105(3) is impermissible. It is, therefore, submitted that Parliament
has no power of expulsion (permanent cessation of membership). On the other
hand, the Union of India and the Attorney General assert that Parliament has
such power. The assertion is based on two premises. First is that Article 101
relating to vacancies is not exhaustive. The Second is that the power of
Parliament to expel a member is a part of the powers, privileges and immunities
conferred on the Parliament, under Article 105(3), and it is distinct and
different from 'disqualifications' contemplated under Article 102.
incident occurred, the response of the Hon. Speaker and the Parliament, in
taking prompt remedial action, against those who were seen as betraying the
confidence reposed by the electors, showed their concern to maintain probity in
public life and to cleanse Parliament of elements who may bring the great
institution to disrepute. But, howsoever bonafide or commendable the action is,
when it is challenged as being unconstitutional, this Court as the interpreter
and Guardian of the Constitution has the delicate task, nay the duty, to
pronounce upon validity of the action. There is no question of declining to or
abstaining from inquiring into the issue merely because the action is sought to
be brought under the umbrella of parliamentary privilege. The extent of
parliamentary power and privilege, and whether the action challenged is in
exercise of such power and privilege, are also matters which fall for
determination of this Court. In this context, I may usefully refer to the words
of Bhagwati, J. (as His Lordship then was) in State of Rajasthan v. Union of India [AIR 1977 SC
merely because a question has a political complexion, that by itself is no
ground why the Court should shrink from performing its duty under the
Constitution if it raises an issue of constitutional determination. , the Court
cannot fold its hands in despair and declare "Judicial hands off." So
long as a question arises whether an authority under the constitution has acted
within the limits of its power or exceeded it, it can certainly be decided by
the Court. Indeed it would be its constitutional obligation to do so.
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.
not be forgotten, that to this Court as much as to other branches of
Government, is committed the conservation and furtherance of democratic values.
The Court's task is to identify those values in the constitutional plan and to
work them into life in the cases that reach the Court.. The Court cannot and
should not shirk this responsibility" [emphasis supplied]
The question before us is not
whether the petitioners are guilty of having taken money for asking questions,
or raising issues in the Parliament.
question is, irrespective of whether they are guilty or not, Parliament has the
power to expel them, thereby effecting permanent cessation of their membership.
On the contentions raised, the questions that therefore arise for consideration
101 and 102 are exhaustive in regard to the modes of cessation of membership of
Parliament; and whether expulsion by the House, not having been specified as a
mode of cessation of membership, is impermissible.
If the answer to
the above question is in the negative, whether the Parliament has the power to
expel its members (resulting in permanent cessation of membership) as a part of
its powers, privileges and immunities under Article 105(3).
I may first refer to the basic
principles relevant for the purpose of constitutional interpretation in the
context of the first question.
Parliament, Indian Parliament is not sovereign. It is the Constitution which is
supreme and sovereign and Parliament will have to act within the limitations
imposed by the Constitution :
There is a marked distinction
between British Parliament and the Indian Parliament. British Parliament is
sovereign. One of the hallmarks of such sovereignty is the right to make or
unmake any law which no court or body or person can set aside or override. On
the other hand, the Indian Parliament is a creature of the Constitution and its
powers, privileges and obligations are specified and limited by the
Constitution. A legislature created by a written Constitution must act within
the ambit of its power as defined by the Constitution and subject to the
limitations prescribed by the Constitution. Any act or action of the Parliament
contrary to the constitutional limitations will be void.
In re Art. 143, Constitution of India and Delhi Laws Act [AIR 1951 SC
332], this Court observed thus :
is a basic difference between the Indian and the British Parliament in this
respect. There is no constitutional limitation to restrain the British
Parliament from assigning its powers where it will, but the Indian Parliament
qua legislative body is fettered by a written constitution and it does not
possess the sovereign powers of the British Parliament. The limits of the
powers of delegation in India would therefore have to be
ascertained as a matter of construction from the provisions of the Constitution
itself." [emphasis supplied] In Special Reference No.1 of 1964 UP
Assembly Case [1965 (1) SCR 413], a Bench of seven Judges observed thus :
England, Parliament is sovereign; and in the words of Dicey, the three
distinguishing features of the principle of Parliamentary Sovereignty are that
Parliament has the right to make or unmake any law whatever; that no person or
body is recognized by the law of England is having a right to override or set
aside the legislation of Parliament; and that the right or power of Parliament
extends to every part of the Queen's dominion. On the other hand, the essential
characteristic of federalism is "the distribution of limited executive,
legislative and judicial authority among bodies which are co-ordinate with and
independent of each others". The supremacy of the constitution is
fundamental to the existence of a federal State in order to prevent either the
legislature of the federal unit or those of the member States from destroying
or impairing that delicate balance of power which satisfies the particular
requirements of States which are desirous of union, but not prepared to merge
their individuality in a unity. This supremacy of the constitution is protected
by the authority of an independent judicial body to act as the interpreter of a
scheme of distribution of powers." "Therefore, it is necessary to
remember that though our Legislatures have plenary powers, they function within
the limits prescribed by the material and relevant provisions of the
Constitution. In a democratic country governed by a written Constitution, it
is the Constitution which is supreme and sovereign.
Therefore, there can be no doubt that the sovereignty which can be claimed by
the Parliament in England, cannot be claimed by any
Legislature in India in the literal absolute sense. We
feel no difficulty in holding that the decision about the construction of
Article 194(3) must ultimately rest exclusively with the Judicature of this
country. " "Article 212(1) seems to make it possible for a citizen to
call in question in the appropriate court of law the validity of any
proceedings inside the legislative chamber if his case is that the said
proceedings suffer not from mere irregularity of procedure, but from an
illegality. If the impugned procedure is illegal and unconstitutional, it would
be open to be scrutinized in a court of law, though such scrutiny is prohibited
if the complaint against the procedure is no more than this that the procedure
was irregular." [emphasis supplied] In Kesavananda Bharati vs. State of Kerala [1973(4) SCC 225], it was observes
that the Constitution being supreme, all the organs owe their existence to it.
Each organ has to function within the four corners of the constitutional
provisions. The doctrine of parliamentary sovereignty as it obtains in England does not prevail in India except to the extent provided by
the Constitution. The judiciary is entrusted the task of construing the
provisions of the Constitution and safeguarding the fundamental rights.
in State of Rajasthan (supra), this Court reiterated :
is necessary to assert in the clearest terms, particularly in the context of
recent history, that the Constitution is supreme lex, the paramount law of the
land, and there is no department or branch of Government above or beyond it.
Every organ of Government, be it the executive or the legislature or the
judiciary, derives its authority from the Constitution and it has to act within
the limits of its authority." [emphasis supplied] In Sub-Committee on
Judicial Accountability vs. Union of India [1991 (4) SCC 699], a Constitution
Bench of this Court held :
where, as in this country and unlike in England, there is a written
Constitution which constitutes the fundamental and in that sense a "higher
law" and acts as a limitation upon the legislature and other organs of the
State as grantees under the constitution, the usual incidents of parliamentary
sovereignty do not obtain and the concept is one of 'limited government'.
Judicial Review is, indeed, an incident of and flows from this concept of the
fundamental and the higher law being the touchstone of the limits of the powers
of the various organs of the State which derive power and authority under the
Constitution and that the judicial wing is the interpreter of the Constitution
and, therefore, of the limits of authority of the different organs of the
State. It is to be noted that the British Parliament with the Crown is supreme
and its powers are unlimited and courts have no power of judicial review of
legislation." "In a federal set up, the judiciary becomes the
guardian of the Constitution The interpretation of the Constitution as a legal
instrument and its obligation is the function of the Courts." II. When a
Statute, having made specific provisions for certain matters, also incorporates
by reference an earlier statute, to avoid reproduction of the matters provided
for in the earlier statute, then what is deemed to be incorporated by such
reference, are only those provisions of the earlier statute which relate to
matters not expressly provided in the latter statute, and which are compatible
with the express provisions of the latter statute.
The legislative device of
incorporation by reference is a well-known device where the legislature,
instead of repeating the provisions of a particular statute in another statute,
incorporates such provisions in the latter statute by reference to the earlier
statute. It is a legislative device adopted for the sake of convenience in
order to avoid verbatim reproduction of the provisions of the earlier statute
into the later. [See Mary Roy v. State of Kerala 1986 (2) SCC 209]. Lord Esher M. R. stated the effect of incorporation
in Clarke vs. Bradlaugh [1881 (8) QBD 63] thus :- "If a subsequent Act
brings into itself by reference some of the clauses of a former Act, the legal
effect of that, as has often been held, is to write those sections into the new
Act as if they had been actually written in it with the pen, or printed on
In U.P. Assembly case (supra), this
Court while considering Article 194(3), identical in content to Article 105(3)
of the Constitution, referred to referred to its scope thus :
Seervai's argument is that the latter part of Art. 194(3) expressly provides
that all the powers which vested in the House of Commons at the relevant time,
vest in the House. This broad claim, however, cannot be accepted in its
entirety, because there are some powers which cannot obviously be claimed by
the House. Take the privilege of freedom of access which is exercised by the
House of Commons as a body and through its Speaker "to have at all times
the right to petition, counsel, or remonstrate with their Sovereign through
their chosen representative and have a favourable construction placed on his
words was justly regarded by the Commons as fundamental privilege." It is
hardly necessary to point out that the House cannot claim this privilege.
Similarly, the privilege to pass acts of attainder and the privilege of
impeachment cannot be claimed by the House. The House of Commons also claims
the privilege in regard to its own Constitution. This privilege is expressed in
three ways, first by the order of new writs to fill vacancies that arise in the
Commons in the course of a Parliament; secondly, by the trial of controverted
elections; and thirdly, by determining the qualification of its members in
cases of doubt. This privilege again, admittedly, cannot be claimed by the
House. Therefore, it would not be correct to say that all power and privileges
which were possessed by the House of Commons at the relevant time can be
claimed by the House."
In Chhabildas Mehta v. The
Legislative Assembly, Gujarat State [1970 Guj.LR 729], a Division Bench of Gujarat High Court
speaking through Chief Justice Bhagwati (as he then was) held :
problem before us is whether the privilege can be read in Article 194(3). It is
no answer to this problem to say 'read the privilege in Article 194(3) and then
harmonise it with the other provisions'. If the privilege is inconsistent with
the scheme of the Constitution and its material provisions, it cannot and
should not be read in Article 194(3). The presumed intention of the Constitution-makers
in such a case would be that such a privilege should not belong to the House of
the Legislature." [Emphasis supplied] 17. In Hardwari Lal v. The Election
Commission of India [1977 (2) Punj.
269], the validity of expulsion of a member of legislature came up for
consideration. After an elaborate discussion, the majority found that the power
of British House of Commons, to expel any of its members, flowed from its
privilege to provide for and regulate its own constitution. It was held that
such power of expulsion was not available to the Indian Parliament, having
regard to the fact that the written constitution makes detailed provision for
the constitution of the Parliament, elections, vacation of seats and
disqualifications for membership. Sandhawalia, J. (as he then was) speaking for
the majority of the Full Bench observed thus :
was submitted that in view of the language of Article 194(3) each and every
parliamentary privilege enjoyed by the House of Commons without any exception
whatsoever must be deemed as if it were in fact written with pen and ink into
the Constitution itself.
to the respondents, one must at the outset unreservedly read every power,
privilege and immunity of the House of Commons within clause (3) and consequently
exercisable by the State Legislatures in India as well. However, having done that, one should thereafter proceed to
scrutinize the remaining provisions of the Constitution and if some power,
privilege or immunity directly conflicts with or contravenes some express or
special provision thereof then the same may be eroded on the ground that it is
not possible for the House to exercise the same. Nevertheless it was
dogmatically stated that even in the case of a direct or irreconciliable
conflict, the privilege must be read into the Constitution and should not be
deemed as necessarily deleted or excluded therefrom. In short, the learned
Advocate-General for a while canvassed for the acceptance of what may be
conveniently called as 'pen and ink theory' for the construction of Article
194(3) of the Constitution.
On the other hand, the petitioner forthrightly argued that some of the
parliamentary privileges of the House of Commons by their very nature are so
inherently alien to our Republican Constitution that they can never possibly be
deemed to be part thereof. It was submitted that the only reasonable and
consistent canon of construction in this situation was that all the
parliamentary privileges of the House of Commons which in their very essence
and by their intrinsic nature were patently contradictory to the Indian
Constitution, then these must necessarily be excluded therefrom at the very
I believe, that the fallacy of the argument on behalf of the respondent is
highlighted, the moment one particularizes the same and refers to some of the
well-known and admitted privileges of the House of Commons. It was conceded
before us that not one but innumerable parliamentary powers and privileges of
the House of Commons were inextricably linked with the Sovereign, that is, King
or Queen of England, as the case may be. Can one imagine that the word 'King'
or 'Queen' mentioned therein should be deemed to have been written in pen and
ink in our Constitution also when its very preamble solemnly declares that the
people of India have constituted themselves into a Sovereign, Socialist Secular
Democratic Republic ? In particular, one may consider the accepted
parliamentary privilege of the freedom of access to the Sovereign including a
right at all times to petition, counsel or remonstrate with the King through
their chosen representatives.
is admitted on all hands to be a parliamentary privilege which was considered
fundamental by the House of Commons and undoubtedly enjoyed by it. Can one for
a moment conceive that the Republican Constitution of India would incorporate
this privilege for its State Legislatures. How can even one imagine that the
founding fathers in the Constituent Assembly had intended to write such a
privilege also into our Constitution and to deem it as part and parcel thereof?
If so, to whom were the State Legislatures supposed to petition and with whom
were they to counsel or remonstrate with through their chosen representatives
in the obvious absence of even the institution of the Monarchy herein ? (239) Similarly
not one but there are tens of parliamentary privileges of the House of Commons
which are closely linked with the hereditary House of Lords in England. In particular the power of the
House of Lords to punish the contemners of the House by passing judgment as a
Court was undoubted. Can one read or even imagine a House of Lords within our
polity when the very Constitution itself disapproves even a reference to any
titles on the basis of heredity and blood alone? Other examples of this nature
could perhaps be multiplied ad infinitum but it would perhaps suffice to
mention two other undoubted privileges of the House of Commons. It is not in
dispute that the said House had a relatively unrestricted power of impeachment
whereby it acted as the prosecutor whilst the House of Lords was the final
Court or adjudicator for the same. Would it be possible to assume within our
Constitution any such general parliamentary privilege of impeachment (apart
from those which the Constitution in terms confers) or by analogy to place the Rajya
Sabha in the peculiar historical position which the House of Lords as the final
Court in England? Again closely inter-related to
this general power of impeachment in the House of Commons was the privilege to
pass Acts or Attainder which in terms and effect meant an unrestricted right to
pass judgment during the course of impeachment. Can one for a moment read such
a power or privilege in favour of the State Legislatures in India? (240) I am of the view that it is
essentially tautologous to first read something into the Constitution and in
the next breath to proceed to erase the same. This exercise becomes inevitable,
if, as suggested on behalf of the respondents, one is to first read the King,
the Queen, the House of Lords or the Acts of Attainder into the Constitution
and thereafter to proceed to nullify them on the plain ground that by the very
nature of things they cannot form part of a Republican Constitution. The pen
and ink theory, therefore, in effect becomes indeed a pen, ink and India Rubber
theory whereby one first writes something entirely alien to the Constitution
within it and the next moment proceeds to rub it off. It is well-settled that
when a statute includes something in it by a reference to another provision
then only that can be deemed to be included which is compatible with the parent
provision. To my mind, therefore, the plain method of construing Article 194(3)
is the usual and the settled one of not reading something into it which is
glaringly anomalous, unworkable and irrational." [emphasis supplied] III.
Decisions of foreign courts, though useful to understand the different
constitutional philosophies and trends in law, as also common law principles
underlying Indian Statutes, are of limited or no assistance in interpreting the
special provisions of Indian Constitution, dissimilar to the provisions of
Constitution of India differs significantly from
Constitutions of other countries. It was made in the background of historical,
social and economic problems of this country. Our Constitution-makers forged
solutions and incorporated them. They made exhaustive provisions relating to
Executive, Legislature, and Judiciary with checks and balances. While making
specific and detailed provisions regarding Parliament, the Constitution also
earmarked the areas where further provisions could be made by the Parliament by
law. On the other hand, the Constitution of England is unwritten and flexible.
The distribution and regulation of exercise of governmental power has not been
reduced to writing. Further British Parliament was, at one time, also the
highest court of justice and because of it, regarded as a superior court of
record, with all its attendant trappings.
States has a short
and rigid Constitution, expounded considerably by courts. Indian Constitution
is exhaustive and sufficiently expounded by the Constitution makers themselves.
In fact, with 395 Articles and 12 Schedules, it is the longest among world's
In Re. the C.P. and Berar Sales of
Motor Spirit & Lubricants Taxation Act, 1938 -- the Central Provinces case [AIR 1939 FC 1], the Federal
Court observed thus :
in the last analysis the decision must depend upon the words of the
Constitution which the Court is interpreting and since no two Constitutions are
in identical terms, it is extremely unsafe to assume that a decision on one of
them can be applied without qualification to another. This may be so even where
the words or expressions used are the same in both cases, for a word or phrase
may take a colour from its context and bear different senses accordingly."
In M.P.V. Sundaramier & Co. v. State of Andhra Pradesh (AIR 1958 SC 468), this Court cautioned :
threads of our Constitution were no doubt taken from other Federal
Constitutions but when they were woven into the fabric of our Constitution
their reach and their complexion underwent changes. Therefore, valuable as the
American decisions are as showing how the question is dealt with in sister
Federal Constitution great care should be taken in applying them in the
interpretation of our Constitution." The note of caution was reiterated in
Atiabari Tea Co. Ltd. v. State of Assam (AIR 1961 SC 232) and Automobile
Transport Ltd. v. State of Rajasthan (AIR
1962 SC 1406), U.P.Assembly case (supra), and several other subsequent
of Indian Constitution :
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.
relates to Constitution of Parliament and provides that there shall be a
Parliament for the Union which
shall consist of the President and two Houses to be known respectively as the
Council of States and the House of the People. Article 80 provides that the
composition of Council of States shall be made up of twelve members nominated by
the President and not more than 238 representatives of the States and Union
Territories. It also provides that the representatives of each State in the
Council of States shall be elected by the elected members of the Legislative
Assembly of the State.
81 relates to composition of Lok Sabha and provides that Lok Sabha shall
consist of not more than 530 members chosen by direct election from territorial
constituencies in the States and not more than 20 members to represent the
Union Territories, chosen in such manner as Parliament may by law provide.
Article 83 prescribes the duration of Houses of Parliament.
portions thereof are extracted below :
of Houses of Parliament.-
The Council of
States shall not be subject to dissolution, but as nearly as possible one-third
of the members thereof shall retire as soon as may be on the expiration of
every second year in accordance with the provisions made in that behalf by
Parliament by law.
The House of the
People, unless sooner dissolved, shall continue for [five years] from the date
appointed for its first meeting and no longer and the expiration of the said
period of [five years] shall operate as a dissolution of the House. :
85 provides for the sessions of Parliament, prorogation of the Houses and
dissolution of the House of the people.
enumerates the qualifications for membership of Parliament. Article 102 deals
with disqualifications for membership. Clause (1) of Article 102 provides that a
person shall be disqualified for being chosen as, and for being, a member of
either House of Parliament :
if he holds any
office of profit under the Government of India or the Government of any State,
other than an office declared by Parliament by law not to disqualify its
if he is of
unsound mind and stands so declared by a competent court;
if he is an undischarged
if he is not a
citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgement of allegiance
or adherence to a foreign State;
if he is so
disqualified by or under any law made by Parliament.
(2) of Article 102 provides that a person shall be disqualified for being a
member of either House of Parliament, if he is so disqualified under the Tenth
Article 101 deals
with vacation of seats. Clause (1) thereof bars a person being a member of both
Houses of Parliament, and requires the Parliament to make a provision by law for
the vacation by a person who is chosen as member of both Houses, of his seat in
one House or the other.
(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 :
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.
(4) provides that if for a period of 60 days, a member of either House of
Parliament is without permission of the House absent from all meetings thereof,
the House may declare his seat vacant.
relates to decision on questions as to disqualifications of members. It is
extracted below :
Decision on questions as to disqualifications of members :
If any question
arises as to whether a member of either House of Parliament has become subject
to any of the disqualifications mentioned in clause (1) of article 102, the
question shall be referred for the decision of the President and his decision
shall be final.
any decision on any such question, the President shall obtain the opinion of
the Election Commission and shall act according to such opinion.
provisions in regard to the State Legislatures are found in Articles 168, 170,
171, 172, 174, 173, 191, 190 and 192 of the Constitution.
It is to be noted
expulsion is not mentioned as a mode of cessation of membership of the
Parliament under the Constitution. Nor does it give rise to a vacancy.
Article 105 deals
with powers, privileges, etc., of the Houses of Parliament and of the members
and committees thereof. Clauses (1) to (3) which are relevant, extracted below :
"Powers, privileges, etc., of the Houses of Parliament and of the members and
Subject to the
provisions of this Constitution and to the rules and standing orders regulating
the procedure of Parliament, there shall be freedom of speech in Parliament.
No member of
Parliament shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in Parliament or any committee thereof,
and no person shall be so liable in respect of the publication by or under the
authority of either House of Parliament of any report, paper, votes or
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)
corresponding provision in regard to State Legislatures and its members, is
Article 194. The words "shall be those of the House and of its members and
Committees immediately before coming into force of section 15 of Constitution
(Forty Forth Amendment) Act, 1978" in clause (3) of Articles 105 and 194
have replaced the earlier words "shall be those of the House of Commons of
Parliament of the United Kingdom, and of its members and Committees, at the
commencement of the Constitution". The position even after amendment is
the same as the position that existed at the commencement of the Constitution.
provisions of Chapter II, relating to Parliament also require to be noticed.
Article 106 relates to salaries and allowances of members.
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.
107 contains the provisions as to introduction and passing of Bills.
108 relates to joint sitting of both Houses in certain cases. Article 109
relates to special procedure in respect of Money Bills. Article 110 defines
"Money Bills". Article 111 requires the presentation of Bills passed
by the Houses of Parliament to the President for his assent. Articles 112 to
117 relate to the procedure in financial matters. Article 112 relates to annual
financial statement. Article 113 relates to the procedure with respect to
estimates. Article 114 relates to appropriation bills. Article 115 relates to
supplementary, additional or excess grants. Article 116 relates to votes on
account, votes of credit and exceptional grants. Article 117 contains special
provisions as to financial bills. Articles 118 to 122 govern the rules of
procedure generally to be adopted by the Houses of Parliament. Article 118
enables each House of Parliament to make rules for regulating, subject to the
provisions of the Constitution, its procedure and the conduct of its business.
119 relates to regulation by law of procedure in Parliament in relation to
financial business. Article 120 relates to the language to be used in
Parliament. Article 121 places a restriction on discussion in Parliament (in
regard to the conduct of any Judge of the Supreme Court or of a High Court in
the discharge of his duties except upon a motion for presenting an address to
the President praying for the removal of the Judge). Article 122 bars courts
from inquiring into proceedings of Parliament and it is extracted below :
Courts not to inquire into proceedings of Parliament.
The validity of
any proceedings in Parliament shall not be called in question on the ground of
any alleged irregularity of procedure.
No officer or
member of Parliament in whom powers are vested by or under this Constitution
for regulating procedure or the conduct of business, or for maintaining order,
in Parliament shall be subject to the jurisdiction of any court in respect of
the exercise by him of those powers."
We have referred in detail to the
various provisions to demonstrate that as far as the Indian Constitution is
concerned, Chapter II of Part V is a complete Code in regard to all matters
relating to Parliament. It provided for every conceivable aspect of Parliament.
It contains detailed provisions in regard to the constitution of Parliament,
composition of Parliament, sessions, prorogation and dissolution of Parliament,
Officers of Parliament, duration of the Houses of Parliament, qualifications
for membership, disqualifications for being chosen as, and for being members,
vacancies of seats, decision on questions of disqualification, powers,
privileges and immunities of the Parliament, its Members and Committees, manner
of conducting business, the procedure to be adopted by the Parliament in regard
to the enactment of laws, persons who can address the Parliament, the language
to be used, and the Officers of the Parliament. The entire field in regard to
the legislature is covered fully in the following manner :
(Parliament) Articles (State Legislature) Articles Constitution &
Composition of Houses and election/nomination of members 79 to 82 168 to 171
Duration of Houses and Tenure of Office of Members 83 172 Sessions, Prorogation
and dissolution 85 174 Qualification for Membership 84 173 Cessation of
membership (Disqualifications for being chosen as, and for being a member, and
vacancies) and decision on questions of disqualification 102, 101 & 103
192, 190 & 192 Powers, privileges and immunities of the Legislature,
members and Committees, and salaries & allowances 105, 122 & 106 194,
212 & 195 Restriction on Powers 121 211 Offices of Legislature 89 to 98 178
to 187 Rules of Procedure and Language 118, 119 & 120 208, 209 & 210
Legislative Procedure and Conduct of Business 107 to 111 112 to 117 99 &
100 196 to 201 202 to 207 188 & 189 Persons who can address the Parliament
86 to 88.
The Constitution also makes express
provisions for cessation of tenure of office or removal of every constitutional
functionary referred to in the Constitution. I will refer to them briefly :
refers to the procedure for impeachment of President.
Clause (4) of Article
61 provides that if the resolution is passed by a majority of not less than
two-third of the Members of the House declaring the charge against the
President has been sustained, such resolution shall have the effect of removing
the President from the office.
Clause (b) of
Article 67 deals with the term of office of Vice President and provides for
removal of Vice President from office by a resolution of Council of States
passed by majority of all the then members of the Council and agreed to by the
House of People.
Article 76(4) and Article 156(1) refer to the Ministers, Attorney General and
Governor holding office during the pleasure of the President.
provides that no Judge of Supreme Court shall be removed from his office except
by an order of President passed after impeachment. Articles 148 and 324 provide
that the Comptroller & Auditor General of India and the Chief Election Commissioner shall not be removed
from their office except in like manner and on like grounds of a Judge of the
Article 315 read
with Article 317 provides how a Chairman or a Member of a Public Service
Commission can be removed from office.
provisions are made in regard to cessation/termination of tenure of office or
removal of all constitutional functionaries with reference to the States.
Article 156(1) relates to Governor, Article 164(1) relates to Ministers,
Article 165(3) relates to Advocate General, Article 179 relates to Speaker and
Deputy Speaker, Article 183 relates to Chairman and Deputy Chairman of
Legislative Council, Articles 190 to 192 relate to Members of Legislatures and
Article 217 relates to High Court Judges.
Articles 101 and 102 are exhaustive of the circumstances in which there will be
cessation of membership ?
The word 'disqualified' means to
'make ineligible' or debarred. It also means divested or deprived of rights,
powers or privileges. The term 'expel' means to deprive a person of the
membership or participation in any 'body' or 'organization' or to forcibly
eject or force a person to leave a building premises etc. The enumeration of
disqualifications is exhaustive and specifies all grounds for debarring a
person from being continuing as a member. The British Parliament devised
expulsion as a part of its power to control its constitution, (and may be as a
part of its right of self-protection and self-preservation) to get rid of those
who were unfit to continue as members, in the absence of a written
Constitutional or statutory provision for disqualification. Historically,
therefore, in England, 'expulsion' has been used in cases
where there ought to be a standing statutory disqualification from being a
Member. Where provision is made in the Constitution for disqualifications and
vacancy, there is no question of exercising any inherent or implied or
unwritten power of 'expulsion'.
A person cannot be disqualified
unless he suffers a disqualification enumerated in Article 102. Article 102
refers to 6 types of disqualifications :
If he holds any
office of profit, vide Article 102(1)(a);
If he is of
unsound mind and stands so declared, vide Article 102(1)(b);
If he is an undischarged
solvent, vide Article 102(1)(c);
If he is not a
citizen of India, vide Article 191(1)(d);
If he is
disqualified by or under any law made by Parliament.
If he is
disqualified under the Tenth Schedule, vide Article 102(2).
have also been prescribed by the Parliament in the Representation of People
Act, 1951 as contemplated under Article 102(1)(e).
grounds of disqualifications under the said Act are :
if he is
convicted and sentenced for any offence as provided/enumerated in Section 8 of
if he is found
guilty of corrupt practices by an order under Section 99 of the Act vide
Section 8-A of the Act;
if he is
dismissed for corruption or for disloyalty to the State, vide Section 9 of the
if he has a
subsisting contract with the appropriate Government for the supply of goods to
or for the execution of any works, vide Section 9-A of the Act;
if he is a managing
agent, manager or secretary of any company or corporation, in which the
appropriate Government has a share, vide Section 10 of the Act;
If he is a
person who has been declared as disqualified by the Election Commission, vide
Section 10-A of the Act." The Constitution thus expressly enumerates
certain grounds of disqualification (sub-clauses (a) to (d) of clauses (1) and
(2) of Article 102).
also permitted the Parliament to add disqualifications, by making a law.
Passing a resolution by one House, is not of course, making a law.
In the case of Members of
Parliament, the Constitution has consciously used the word disqualification,
both for 'being chosen as a member' and for 'being a member'. That means that
when a member becomes disqualified as mentioned in Article 102, he becomes
disentitled to continue as a Member of the House.
Article 101 specifically provides the
circumstances in which a seat of Member of Parliament becomes vacant
when a person is
member of both Houses of Parliament;
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;
when a person
becomes subject to any of the disqualifications mentioned in clause (1) or
clause (2) of Article 102;
when he resigns
his seat and his resignation is accepted.
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.
An analysis of Article 101 shows
that the Constitution makers provided specifically for three types of vacancies
vacancies, for reasons specifically stated in the Constitution itself (vide
clauses (2) and (3) of Article 101).
vacancies, to be provided by a law made by the Parliament (vide clause (1) of
vacancy, on a declaration by the House (vide clause (4) of Article 101).
Constitution makers wanted a vacancy to occur on account of 'expulsion' on a
decision or declaration by the House, they would have certainly provided for
it, as they have provided for vacancy on the ground of unauthorized absence,
arising on a declaration by the House under clause (4) of Article 101. The
Constitution makers did not contemplate or provide for any cause, other than
those mentioned in Article 101, for giving rise to a vacancy. Thus a seat held
by a Member of Parliament does not become vacant, in any manner, other than
those stated in Article 101.
One argument advanced to contend
that Article 101 cannot be considered as exhaustive as to the circumstances in
which vacancy occurs in respect of a seat in the Parliamentary, was that it
does not provide for vacation of seat by death of a Member. Article 101 refers
to vacation of seat by a 'person' who is a member of the House, that is, a
person who is alive.
person is dead, obviously he is not a Member of the House. It would be absurd
to contend that a person even after death will continue to hold the seat. The
obvious effect of death did not require to be stated and therefore the
non-mention of death as a ground for vacancy does not make Article 101 any less
Articles 102 and 101 together
include all circumstances in which a membership comes to an end and the seat
becomes vacant. The Constitution does not contemplate or provide for the
membership of an MP coming to an end in any manner other than what is
specifically provided in Articles 101 and 102. Therefore there cannot be
cessation of membership, de hors Articles 101 and 102, by 'expulsion' or
The Constitution-makers have made
detailed and specific provisions regarding the manner in which a person becomes
a Member of Parliament (elected/nominated), the duration for which he continues
as a member and the manner in which he ceases to be a member and his seat
neither the question of election or nomination, nor tenure, nor
cessation/termination of membership of the House covered by the express
provisions in the Constitution, can fall under 'other powers, privileges and
immunities' of the House mentioned in Article 105(3).
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.
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
Clause (3) of Article 105 opens with
the words 'in other respects'.
provision for 'powers, privileges and immunities' in clause (3) occurs after
referring to the main privilege of freedom of speech in Parliament, in clause
(1) of Article 105, and the main immunity against court proceedings in clause
(2) of Article 105. Therefore, clause (3) is intended to provide for 'non-main'
or 'incidental' or miscellaneous powers, privileges and immunities which are
numerous to mention. Two things are clear from clause (3). It is not intended
to provide for the matters relating to nomination/election, term of office,
qualifications, disqualification/cessation, for which express provisions are
already made in Articles 80, 81, 83, 84, 101 and 102. Nor is it intended to
provide for important privilege of freedom of speech or important immunity from
court proceedings referred to in Clause (1) and (2) of Article 105. This Court
in U.P. Assembly referred to this aspect :
can be little doubt that the powers, privileges and immunities which are
contemplated by clause (3) are incidental powers, privileges and immunities
which every Legislature must possess in order that it may be able to function
effectively, and that explains the purpose of the latter part of clause
(3)." [emphasis supplied] By no stretch of imagination, the power to expel
a member can be considered as an 'incidental' matter. If such a power was to be
given, it would have been specifically mentioned.
The appropriate course in case of
allegation of corruption against a Member of Parliament, is to prosecute the
member in accordance with law (The immunity under Article 105(2) may not be
available, as the decision in P.V.Narasimha Rao v. State [1998 (4) SCC 626]
recognizes immunity to a member who is a bribe taker only where the 'bribe' is
taken in respect of a 'vote' given by him in Parliament and not otherwise).
Such cases can be fast tracked. Pending such criminal proceedings, the member
can be suspended temporarily, if necessary, so as to prevent him from
participating in the deliberations of the Houses. On being tried, if the member
is convicted, he becomes disqualified for being or continuing as a Member under
Article 102(1)(e). If he is acquitted, he is entitled to continue as a member.
Though it may sound cumbersome, that apparently is what the Constitution
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).
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.
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