Ram Pal Vs. Speaker, Lok Sabha & Ors  Insc 24 (10 January 2007)
Thakker with Transferred Cases Nos. 82, 83, 84, 85, 86, 87, 88, 89, 90 of 2006
and Writ Petition (C) No. 129 of 2005 C.K. Thakker, J.
had the benefit of reading the erudite judgment prepared by my Lord the Chief
Justice. I am in agreement with the final order dismissing the petitions.
in view, however, the issue in these matters which is indeed of great public
importance having far- reaching consequences to one of the largest democracies
of the world, I intend the consider it in detail.
these 11 petitions (9 by members of Lok Sabha and 2 by members of Rajya Sabha),
the petitioners have challenged the proceedings initiated against them by
Parliament, the reports submitted by the Committees constituted by Parliament
holding them guilty of the charges levelled against them and notifications
expelling them as members of Parliament.
'unfortunate background' of the case has been dealt with by the learned Chief
Justice and I do not intend to repeat it. Suffice it to say that it was alleged
against the petitioners that they accepted money for tabling questions/raising
issues in Parliament.
were appointed to inquire into the allegations and conduct of Hon'ble Members.
The allegations were found to be correct and pursuant to the reports submitted
by the Committees, the Members were expelled by Parliament. Those Members have
challenged the impugned action of expulsion.
Court had been ably assisted by the learned counsel for the parties on the
central question of Parliamentary privileges, the power of the House to deal
with those privileges and the ambit and scope of judicial review in such
outset, I wish to make it clear that I am considering the controversy whether
Parliament has power to expel a member and whether such power and privilege is
covered by clause (3) of Article 105 of the Constitution. I may clarify that I
may not be understood to have expressed final opinion one way or the other on
several questions raised by the parties and dealt with in this judgment except
to the extent they relate or have relevance to the central issue of expulsion
of membership of Parliament.
PRIVILEGES : MEANING an important as also a complicated question is :
do we understand by 'parliamentary privileges'? "Nothing", said
Dicey, "is harder to define than the extent of the indefinite powers or
rights possessed by either House of Parliament under the head of privilege or
law and custom of Parliament".
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.
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
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.
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.
is an exemption or freedom from general obligation, duty, burden or penalty.
Exemption from appearance before a court of law or other authority, freedom
from prosecution, protection from punishment, etc. are immunities granted to
certain persons or office bearers.
May, in his well-known work 'Treatise on The Law, Privileges, Proceedings and
Usage of Parliament', (23rd Edn.); p. 75 states;
privilege is the sum of the peculiar rights enjoyed by each House collectively
as a constituent part of the High Court of Parliament, and by Members of each
House individually, without which they could not discharge their functions, and
which exceed those possessed by other bodies or individuals. Thus privilege,
though part of the law of the land, is to a certain extent an exemption from
the general law. Certain rights and immunities such as freedom from arrest or
freedom of speech belong primarily to individual Members of each House and
exist because the House cannot perform its functions without unimpeded use of
the services of its Members. Other such rights and immunities such as the power
to punish for contempt and the power to regulate its own constitution belong
primarily to each House as a collective body, for the protection of its Members
and the vindication of its own authority and dignity. Fundamentally, however,
it is only as a means to the effective discharge of the collective functions of
the House that the individual privileges are enjoyed by Members".
Laws of England, (4th Edn.; Reissue, Vol. 34; p. 553; para 1002); it has been
to rights and privileges. The House of Lords and the House of Commons claim for
their members, both individually and collectively, certain rights and
privileges which are necessary to each House, without which they could not
discharge their functions, and which exceed those possessed by other bodies and
individuals. In 1705 the House of Lords resolved that neither House had power
to create any new privilege and when this was communicated to the Commons, that
House agreed. Each House is the guardian of its own privileges and claims to be
the sole judge of any matter that may arise which in any way impinges upon
them, and, if it deems it advisable, to punish any person whom it considers to
be guilty of a breach of privilege or a contempt of the House".
leading case of Powers, Privileges and Immunities of State Legislatures,
Article 143, Constitution of India, Re, (1965) 1 SCR 413 : AIR 1965 SC 745, Sarkar,
J. (as His Lordship then was) stated; "I would like at this stage to say a
few general words about "powers, privileges and immunities" of the
House of Commons or 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".
'Parliamentary Privilege First Report' (Lord Nicholas Report), it was
privilege consists of the rights and immunities which the two Houses of
Parliament and their members and officers possess to enable them to carry out
their parliamentary functions effectively. Without this protection members
would be handicapped in performing their parliamentary duties, and the
authority of Parliament itself in confronting the executive and as a forum for
expressing the anxieties of citizens would be correspondingly diminished.
D'ETRE FOR PRIVILEGES The raison d'etre for these privileges is again
succinctly explained by Sir Erskine May thus;
distinctive mark of a privilege is its ancilliary character. The privileges of
Parliament are rights which are 'absolutely necessary for the due execution of
are enjoyed by individual Members, because the House cannot perform its
functions without unimpeded used of the services of its Members; and by each
House for the protection of its Members and the vindication of its own
authority and dignity.
representatives, however, are not placed above the law by way of parliamentary
privileges; they are simply granted certain advantages and basic exemptions
from legal process in order that the House may function independently,
efficiently and fearlessly. This is in the interest of the nation as a whole.
PARLIAMENT : WHETHER POSSESSES POWER TO EXPEL
MEMBERS The basic and fundamental question raised by the petitioners in all
these petitions is the power of Parliament to expel a member. Other incidental
and ancillary questions centre round the main question as to authority of a
House of Legislature of expulsion from membership. If the sole object or
paramount consideration of granting powers, privileges and immunities to the
members of Legislature is to enable them to ensure that they perform their
functions, exercise their rights and discharge their duties effectively,
efficiently and without interference of outside agency or authority, it is
difficult to digest that in case of abuse or misuse of such privilege by any
member, no action can be taken by the Legislature, the parent body.
intend to examine the question on principle as well as on practice. It would be
appropriate if I analyse the legal aspects in the light of constitutional
provisions of India and of other countries, factual
considerations and relevant case law on the point.
LAW So far as the United
States of America is concerned,
the Constitution itself recognizes such right. Section 5 of Article 1 of the
Constitution of the United
States confers such
right on each House of the Legislature. Sub-section (2) reads thus;
Each House may determine the rules of its proceedings, punish its members for
disorderly behavior, and, with the concurrence of two-thirds, expel a
member." (emphasis supplied) Leading Authors on the Constitution have also
stated that each House possesses the power to expel a member in appropriate
in his well-known work 'Treatise on the Constitutional Limitations', (1972 Edn.,
p. 133); states;
House has also the power to punish members for disorderly behavior, and other contempts
of its authority, and also to expel a member for any cause which seems to the
body to render it unfit that he continue to occupy one of its seats. This power
is sometimes conferred by the constitution, but it exists whether expressly conferred
or not. It is a necessary and incidental power, to enable the house to perform
its high functions and is necessary to the safety of the State. It is a power
of protection. A member may be physically, mentally, or morally wholly unfit;
he may be affected with a contagious disease, or insane, or noisy, violent and
disorderly, or in the habit of using profane, obscene, and abusive language.
And independently of parliamentary customs and usages, our legislative houses
have the power to protect themselves by the punishment and expulsion of a
member and the Courts cannot inquire into the justice of the decision, or look
into the proceedings to see whether opportunity for defence was furnished or
not." (emphasis supplied) Another well-known authority on the point is Willoughby, who in his work
"Constitutional Law of the United States", (Second Edn.; p. 256); says;
right of expulsion is to be sharply distinguished from the right to refuse to
admit to membership. In the latter case, as has been seen, the questions
involved are, in the main, the perhaps exclusively, those which relate to the
Constitutional qualifications of those persons presenting themselves for
admission or to the regularity and legality of the elections at which such
persons have been selected or appointed. In the former case, that is, of
expulsion, these matters may be considered, but, in addition, action may be
predicated upon the personal character or acts of the parties concerned; and,
as to his last matter, as will presently be seen, the chief point of
controversy has been whether the acts of which complaint is made should be only
those which have occurred subsequent to election and have a bearing upon the
dignity of Congress and the due performance of its functions.
In determining whether or not a member of congress has been guilty of such acts
as to warrant his expulsion the House concerned does not sit as a criminal
trial court, and is not, therefore, bound by the rules of evidence, and the
requirements as the certitude of guilt which prevail in a criminal character,
but only as to unfitness for participation in the deliberations and decisions
of congress." (emphasis supplied) Dealing with the question of expulsion
by the House and the power of Courts, Pritchett in his book 'American
Constitution' (Third Edn., p. 146); observed;
and Censure : Congressmen are not subject to impeachment, not being regarded as
'civil officers' of the United
constitution does not provide, however, that each House may expel its members
by a two third vote, or punish them for 'disorderly behaviour'. Congress is the
sole judge of the reasons for expulsion. The offence need not be indicatable.
In 1797 the Senate expelled William Blount for conduct which was not performed
in his official capacity not during a session of the Senate nor at the seat of
government. The Supreme Court has recorded in a dictum in understanding that
the expulsion power 'extends to all cases where the offence is such as in the
judgment of the Senate is inconsistent with the trust and duty of a
supplied) In 'American Jurisprudence', (Second Edn., Vol. 77, p. 21); it has
power of either House of Congress to punish or expel its members for cause is
recognized in the Constitution which provides that each House may punish its
members for disorderly behaviour, and, with the concurrence of two-thirds,
expel a member.
for misbehaviour may in a proper case be by imprisonment and may be imposed for
failure to observe a rule for preservation of order. In the case of the Senate,
the right to expel extends to all cases where the offence is such as in the
judgment of the body is inconsistent with the trust and duty of a member
(Chapman Re, (1896) 166 US 661 : 41 L Ed 1154)".
of the Court was also invited to certain decisions of the Supreme Court of the United States. In Chapman, Re, 166 US 661 (1891)
: 41 L Ed 2nd 1154, the Supreme Court before more than a century, recognized
the power of the Senate to expel a member where an act of the Member was such
as in the judgment of the Senate was inconsistent with the 'trust and duty' of
was made to William Blount, who was expelled from the Senate in July, 1797, for
'a high misdemeanor entirely inconsistent with his public trust and duty as a
senator.' It was also stated that in July, 1861, during civil war, fourteen
Senators and three Representatives were expelled.
Bond v. James Sloppy Floyd, 385 US 116 (1966) : 17 L Ed 2nd 235, William Bond,
a Negro, duly elected representative was excluded from membership because he
attacked policy of Federal Government in Vietnam. The US Supreme Court held that Bond had right to express free opinion
under the first amendment and his exclusion was bad in law.
v. McCormack, 395 US 486 (1969) : 23 L Ed 2nd 491, the
applicant was held entitled to declaratory judgment that action of exclusion of
a member of a House was unlawful. The allegation against the applicant was that
he deceived the House Authorities in connection with travel expenses and made
certain illegal payments to his wife. Referring to Wilkes and the Law in England, the Court observed that
"unquestionably, Congress has an interest in preserving its institutional
integrity, but in most cases that interest can be sufficiently safeguarded by
the exercise of its power to punish its members for disorderly behaviour and in
extreme cases, to expel a member with the concurrence of two-thirds." In
H. Snowden Marshall v. Robert B. Gordon, 243 US 521 (1917), a Member of the
House of Representatives levelled serious charges against District Attorney of
the Southern District of New York with many acts of misfeasance and
nonfeasance. The Select Committee submitted a report holding him guilty of
contempt of the House of Representatives of the United States because he violated its privileges, its honor and its
with the case and referring to Kielley v.
(1842) 4 MOO PC 63 : 13 ER 225, the Court observed that when an act is of such
a character as to subject it to be dealt with as a contempt under the implied
authority, Congress has jurisdiction to act on the subject. Necessarily results
from that the power to determine in the use of legitimate and fair discretion
how far from the nature and character of the act there is necessity for
repression to prevent immediate recurrence, that is to say, the continued
existence of the interference or obstruction to the exercise of the legislative
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.
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;
authors of our Constitution were well aware of the history of both the need for
the privilege and the abuses that could flow from too sweeping safeguards. In
order to preserve other values, they wrote the privilege so that it tolerates
and protects behaviour on the part of the Members not tolerated and protected
when done by other citizens, but the shield does not extend beyond what is
necessary to preserve the integrity of the legislative process". (emphasis
supplied) From the above cases, it is clear that in the United States, the House possesses the power of
observance of discipline by its members and in appropriate cases, such power
extends to expulsion. It is also clear that such power has been actually
exercised for disorderly behavior in the House as also outside the House, where
the House was satisfied that the member was 'unfit' physically, mentally or
morally even if such conduct could not be a 'statutable offence' or was not
committed by him in his official capacity or during House in Session or at the
seat of Government.
LAW The provisions relating Parliamentary privileges under the Constitution of
Australia were similar to our Constitution. Section 49 declared powers,
privileges and immunities of the Senate and of the House of Representatives and
its Members. It was as follows;
powers, privileges, and immunities of the Senate and of the House of
Representatives, and of the Members and the Committees of each House, shall be
such as are declared by the Parliament, and until declared shall be those of
the Commons House of Parliament of the United Kingdom, and of its members and
committees, at the establishment of the Commonwealth." (emphasis supplied)
Enid Campbell in his book 'Parliamentary Privilege in Australia', dealing with 'Expulsion', states;
common law, the House of Commons is recognized to have power to expel a member
for misconduct unfitting him for membership even where that misconduct is not
such as to disqualify him from parliamentary office. There is no doubt that
those Australian Houses of Parliament invested by statute with the powers and
privileges of the House of Commons enjoy the same power, but the position with
regard to other Houses is not so clear. At common law, Colonial Legislatures do
not possess punitive powers, though there is dictum in Barton v. Taylor to the effect that they do have
power to expel for aggravated or persistent misconduct on the ground that this
may be necessary for the self protection of the legislature. Where a member is
expelled, his seat thereupon becomes vacant. He is not, however, disqualified
from being again elected and returned to parliament".
powers of Colonial Assemblies, the learned author states that though such
Assemblies do not possess 'punitive' powers, it is inconceivable that they
cannot make rules for the orderly conduct of business. Even if they have no
authority to expel a member in absence of specific provision to that effect,
they may suspend disorderly members in appropriate cases.
dignity of a Colonial Parliament acting within its limits, requires no less
than that of the Imperial Parliament that any tribunal to whose examination its
proceedings are sought to be submitted for review should hesitate before it
undertakes the function of examining its administration of the law relating to
its internal affairs". (emphasis supplied) It may also be stated that Odger
in his 'Australian Senate Practice', (11th Edn.; p.57) observes;
recommendation, and the consequent provision in section 8 of the 1987 Act, was
opposed in the Senate. It was argued that there may well be circumstances in
which it is legitimate for a House to expel a member even if the member is not
disqualified. It is not difficult to think of possible examples. A member newly
elected may, perhaps after a quarrel with the member's party, embark upon
highly disruptive behaviour in the House, such that the House is forced to
suspend the member for long periods, perhaps for the bulk of the member's term.
This would mean that a place in the House would be effectively vacate, but the
House would be powerless to fill it.
circumstances may readily be postulated. The House, however, denied themselves
the protection of expulsion".
and Ryan (''The Constitution of the Commonwealth of Australia'; 1974 Edn.)
stated that each House of the Federal Parliament has the right to suspend a
member for disorderly conduct. The power is exercised to punish persistent
interjectors or for refusal to withdraw an offensive remark. "In extreme
cases a member may be expelled". (emphasis supplied) In 1920, Hugh Mahon,
Federal Member of Kalgoorlie was expelled from the House of Representatives for
making a 'blistering' public speech against British Rule in Ireland.
no doubt true that pursuant to the report of the Joint Select Committee on
Parliamentary Privilege (1984), a specific Act has been enacted, known as the
Parliamentary Privileges Act, 1987 (Act 21 of 1987).
8 of the said Act expressly bars a House to expel any of its members. It reads:
House does not have power to expel a member from membership of a House".
therefore, clear that only recently, the power to expel a member from the House
has been taken away by a specific statute.
LAW The legal position under the Constitution of Canada is different to some
extent. Section 18 of the Constitution of the Dominion of Canada, 1867 states;
privileges, immunities, and powers to be held, enjoyed, and exercised by the
Senate and by the House of Commons, and by the members thereof respectively,
shall be such as are from time to time defined by Act of the Parliament of
Canada, but so that any Act of the Parliament of Canada defining such
privileges, immunities, and powers shall not confer any privileges, immunities,
or powers exceeding those at the passing of such Act held, enjoyed, and
exercised by the Commons House of Parliament of the United Kingdom of Great
Britain and Ireland, and by the members thereof." (emphasis supplied) It
is thus clear that unlike India, in Canada, the Legislature could not enlarge
its privileges by enacting a law investing in it the privileges enjoyed by
British Parliament. There is no such limitation under Section 49 of the
Australian Constitution nor under Article 105(3) or Article 194(3) of the
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.,
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
learned counsel for the parties also drew our attention to certain cases from Canada. We may notice only few recent
Speaker of the House of Assembly v. Canadian Broadcasting Corporation, (1993) 1
SCR 319, the Broadcasting Corporation made an application to the Nova Scotia
Supreme Court, Trial Division for an order allowing it "to film the
proceedings of the House of Assembly with its own cameras". The
application was based on the Canadian Charter of Rights and Freedoms which
guaranteed freedom of expression and freedom of press. The Corporation claimed
that it was possible to film the proceedings from the public gallery with
modern equipments. The Speaker, however, declined permission on the ground that
Corporation's proposal would interfere with "the decorum and orderly
proceedings of the House". The Trial Judge granted the claim which was
upheld in appeal. The Speaker approached the Supreme Court.
the questions raised before the Supreme Court was as to whether the House could
exercise privilege by refusing access to the media. Lamer, CJ discussed the
doctrine of privilege in detail in the light of the doctrine of necessity. Referring
to Stockdale v.
(1839) 9 Ad & E 1 : 112 ER 1112 (QB), he stated that parliamentary
privilege and immunity are founded upon necessity. 'Parliamentary privileges'
and the breadth of individual privileges encompassed by that term were accorded
to members of the Houses of Parliament and the Legislative Assemblies because
they were considered necessary for the discharge of their legislative
J. (as she then was) agreed with the learned Chief Justice and observed that
Canadian legislative Assemblies could claim as inherent privileges those rights
which were necessary to their 'capacity to function as legislative bodies'.
Necessity was thus the test. Referring to Kielley v. Carson (1842), 4 MOO PC 63
225, it was observed that though the Privy Council held that a Colonial
Assembly had no power to commit for a contempt like House of Commons of the
United Kingdom, it did not dispute that such powers "as are necessary to
the existence of such body and the proper exercise of the functions which it is
intended to execute" were bestowed with the very establishment of the
Court also considered the ambit and scope of judicial review and exercise of
to Sir Erskine May that "after some three and a half centuries, the
boundary between the competence of the law courts and the jurisdiction of
either House in matters of privilege is still not entirely determined",
the Court observed that originally the Houses of Parliament took the position
that they were the exclusive judges of their privileges. They claimed to be
'absolute arbiters' in respect of parliamentary privileges and took the stand
that their decisions were not reviewable by any other Court or Authority. The
Courts, on the other hand, treated lex parliamentis to be part of the 'law of
the land' and as such, within their judicial control. Judiciary exercised the
power particularly when issues involved the rights of third party. According to
Courts, their role was to interpret the law of Parliament and to apply it.
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.
supplied) Keeping in view important roles of different branches of Government,
it was observed;
democratic government consists of several branches: the Crown, as represented
by the Governor General and the provincial counterparts of that office; the
executive; and the courts. It is fundamental to the working of government as a
whole that all these parts play their proper role. It is equally fundamental
that no one of them overstep its bounds, that each show proper deference for
the legitimate sphere of activity of the other".
was also made to Fred Harvey v. Attorney General for New Brunswick, (1996) 2 SCR 876. In that case, a
Member of provincial Legislature was convicted of illegal practice and was
expelled from legislature pursuant to provincial elections legislation. The
allegation proved against him was that he had induced a 16-year old female to
vote in the election, knowing fully well that she was not eligible to vote. He
was also disqualified for a period of five years from contesting any election.
The Court of Appeal dismissed the appeal of the appellant. The aggrieved Member
approached the Supreme Court.
the appeal and upholding the order of the Court of Appeal, the Supreme Court
held that there was no question that the appellant's actions amounted to an
attack on the integrity of the electoral process which was at the heart of a
free and democratic society and constituted a breach of trust deserving of
with Parliamentary privileges and jurisdiction of Courts, Mc Lachlin, J.
democracies are to survive, they must insist upon the integrity of those who
seek and hold public office. They cannot tolerate corrupt practices within the
legislature. Nor can they tolerate electoral fraud. If they do, two
consequences are apt to result. First, the functioning of the legislature may
public confidence in the legislature and the government may be undermined. No
democracy can afford either.
faced with behaviour that undermines their fundamental integrity, legislatures
are required to act. That action may range from discipline for minor
irregularities to expulsion and disqualification for more serious violations.
Expulsion and disqualification assure the public that those who have corruptly
taken or abused office are removed. The legislative process is purged and the
legislature, now restored, may discharge its duties as it should.
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.
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
supplied) It was also stated that British Jurisprudence makes distinction
between privileges asserted by resolution and privileges effected automatically
by statute. In respect of privileges asserted by resolution, British Courts
have developed a doctrine of necessity, enabling them to inquire whether the
action taken by resolution is necessary to the proper functioning of the House.
The 'necessity inquiry' does not ask whether the particular action at issue was
necessary, and hence does not involve substantive judicial review. It rather
asks whether the dignity, integrity and efficiency of the legislative body
could be maintained if it were not permitted to carry out the type of action
sought to be taken, for example to expel a member from the Legislature or
disqualify a person from seeking office on ground of corruption.
question was raised as to whether Parliament could expel any of its members.
Upholding such right, the Court stated;
power of Parliament to expel a member is undoubted. This power has been
repeatedly exercised by the English and Colonial Parliaments, either when
members have been guilty of a positive crime, or have offended against the laws
and regulations of the House, or have been guilty of fraudulent or other
discreditable acts, which proved that they were unfit to exercise the trust
which their constituents had reposed in them, and that they ought not to
continue to associate with the other members of the legislature.
may be justified on two grounds: to enforce discipline within the House; and to
remove those whose behaviour has made them unfit to remain as members.
The right of expulsion on these two grounds -- discipline and unfit behaviour
-- is a matter of parliamentary privilege and is not subject to judicial
review". (emphasis supplied) The Court concluded;
protection is now accepted, in Canada as in Britain, as a fundamental tenet of
parliamentary privilege. The point is not that the legislature is always right.
The point is rather that the legislature is in at least as good a position as
the courts, and often in a better position, to decide what it requires to
function effectively. In these circumstances, a dispute in the courts about the
propriety of the legislative body's decision, with the delays and uncertainties
that such disputes inevitably impose on the conduct of legislative business, is
recently, in House of Commons v. Satnam Vaid, (2005) 1 SCR 667, a chauffeur of
a Speaker in spite of an order in his favour, was not reinstated in service. He
made a complaint to the Canadian Human Rights Commission to investigate into the
matter. The Commission accepted the complaint of the employee and referred the
matter to the Tribunal. The Speaker challenged the jurisdiction of the Tribunal
contending that it was his power of 'hire and fire' and there was no review.
The Tribunal dismissed the challenge. The Federal Court upheld the Tribunal's
decision. When the matter reached the Supreme Court, the question as to
applicability of privileges was raised. It was held that within categories of
privilege, Parliament was the sole judge of the occasion and manner of its
exercise and such exercise was not reviewable by the courts. However, the
existence and scope of the privileges could be inquired into by Courts.
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.
of the parties to this proceeding questions the pre- eminent importance of the
House of Commons as 'the grand inquest of the nation'. Nor is doubt thrown by
any party on the need for its legislative activities to proceed unimpeded by
any external body or institution, including the courts. It would be
intolerable, for example, if a member of the House of Commons who was
overlooked by the Speaker at question period could invoke the investigatory
powers of the Canadian Human Rights Commission with a complaint that the
Speaker's choice of another member of the House discriminated on some ground
prohibited by the Canadian Human Rights Act, or to seek a ruling from the
ordinary courts that the Speaker's choice violated the member's guarantee of
free speech under the Charter. These are truly matters 'internal to the House'
to be resolved by its own procedures. Quite apart from the potential
interference by outsiders in the direction of the House, such external
intervention would inevitably create delays, disruption, uncertainties and
costs which would hold up the nation's business and on that account would be
unacceptable even if, in the end, the Speaker's rulings were vindicated as
on resolution of conflict between Parliament and Courts in respect of
'legitimate sphere of activity of the other', the Court observed;
democratic government consists of several branches: the Crown, as represented
by the Governor General and the provincial counterparts of that office; the
executive; and the courts. It is fundamental to the working of government as a
whole that all these parts play their proper role. It is equally fundamental
that no one of them overstep its bounds, that each show proper deference for
the legitimate sphere of activity of the other".
LAW English Constitution was neither established by any single action nor on
any particular day. It has grown from the political institutions of people who
respected monarchy but equally insisted for democracy and parliamentary
institution. The origins of parliamentary privileges are thus inextricably interwined
with the history of Parliament in England; and more specifically, the battle between English Monarch and
the House of Commons and House of Lords as also between Parliament and Courts.
emerged in the thirteenth century.
legal history traces its roots in 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.
creative sense, in England the House did not sit down to build
its edifice of the powers, privileges and immunities of Parliament. The
evolution of English Parliamentary institution has thus historical development.
It is the story of conflict between Crown's absolute prerogatives and Commons'
insistence for powers, privileges and immunities; struggle between high handed
actions of Monarchs and People's claim of democratic means and methods.
Parliamentary privileges are the rights which Houses of Parliament and members
possess so as to enable them to carry out their functions effectively and
efficiently. Some of the parliamentary privileges thus preceded Parliament
itself. They are, therefore, rightly described by Sir Erskine May as
'fundamental rights' of the House as against the prerogatives of the Crown, the
authority of ordinary Courts of Law and the special rights of the House of
the House simply claimed privilege. They neither made request to the Crown for
their recognition nor to Courts for their enforcement. Parliamentary privileges
in that sense are outside the law, or a law unto themselves. For instance, the
House would not go to Crown or to Court for release of its member illegally
detained. It would also not pray for a writ of habeas corpus. It would simply
command the Sergeant-at-Arms with the ceremonial mace to the prison and get the
Member released on its own authority.
('A History of English Law', Second Edition; pp.92-93), stated; "It was
the privilege of the House which enabled it to act freely, to carry on the
controversy with the King in a Parliamentary way, and thus to secure a
continuous development of constitutional principles. It is, therefore, not
surprising to find that the earliest controversies between James I and his
Parliaments turned upon questions of privilege, and that these same questions
were always in the forefront of the constitutional controversies all through
also added that Parliament asserted and used its privileges to win for itself
the position of a partner with the King in the work of governing the State.
Edward Coke was in favour of 'High Court of Parliament' having its law and was
of the view that the matters decided in Parliament were not part of Common Law.
He observed that it was not for a Judge to judge any law, custom or privilege
of Parliament. The laws, customs, liberties and privileges of Parliament are
better understood by precedents and experience than can be expressed by a pen.
Lord Tennyson stated;
land of settled government, A land of just and old renown, Where Freedom slowly
broadens down, From precedent to precedent." Let us consider the view
points of learned authors, jurists and academicians on this aspect.
Laws of England, (Fourth Edn.;
: Vol. 34; p. 569; para 1026); it has been stated;
of Commons' power of expulsion.
the House of Commons has delegated its right to be the judge in controverted
elections, it retains its right to decide upon the qualifications of any of its
members to sit and vote in Parliament.
the opinion of the House a member has conducted himself in a manner which
renders him unfit to serve as a member of Parliament, he may be expelled, but
unless the cause of his expulsion by the House constitutes in itself a
disqualification to sit and vote in the House, he remains capable of re-
election. (emphasis supplied) From the above statement of law, it is explicitly
clear that the two things, namely, (i) expulsion; and (ii) disqualification are
different and distinct. A member can be expelled by the Legislature if his
conduct renders him 'unfit' to continue as such. It, however, does not ipso
facto disqualify him for re-election. An expelled member may be re-elected and
no objection can be raised against his re-election, as was the case of John
Wilkes in 1769.
Hood Phillips also states ('Constitutional and Administrative Law', Fourth
Edition; p. 180) that the House may also expel a member, who although not
subject to any legal disability, is in its opinion unfit to serve as a member.
This is commonly done when the Court notifies the Speaker that a member has
been convicted of a misdemeanour. The House cannot prevent an expelled member
from being re-elected, as happened several times in the case of John Wilkes
between 1769 and 1794, but it can refuse to allow him to take seat.
and Phillips also expressed the same opinion.
'Constitutional Law', (7th Edition; p.793); it was stated;
House of Commons cannot of course create disqualifications unrecognized by law
but it may expel any member who conducts himself in a manner unfit for
William Anson in "The Law and Custom of the Constitution", (Fifth Edn;
Vol. I; pp. 187-88) states;
the case of its own members, the House has a stronger mode of expressing its
displeasure. It can by resolution expel a member, and order the Speaker to
issue his warrant for a new writ for the seat from which the member has been
expelled. But it cannot prevent the re-election of such a member by declaring
him incapable of sitting in that Parliament. In attempting to do this, in the
case of Wilkes, the House had ultimately to admit that it could not create a
disqualification unrecognized by law".
and Ryle in "Parliament, functions, practice and procedures", (1989),
at p.85 stated;
reconciliation of these two claims the need to maintain parliamentary
privileges and the desirability of not abusing them has been the hall-mark of
the House of Commons treatment of privilege issues in recent years".
with the penal powers of the House, the learned authors proceeded to state:
are meaningless unless there is power to enforce them by imposing penalties on
those who wreak them. The House does not rely on the courts but has its own
severest and historically most important power is that of commitment .
other punishments can be ordered for Members who offend the House namely expulsion,
or suspension from the service of the House for a specified period or until the
end of the session.
is the ultimate sanction against a Member. It is an outstanding demonstration
of the House's power to regulate its own proceedings, even its composition. The
expulsion of a Member cannot be challenged.
supplied) Consideration of powers, privileges and immunities of the British
Parliament would not be complete if one does not refer to relevant statements
and propositions of law by Sir Erskine May in his celebrated and monumental
work titled 'Treatise on the Law, Privileges, Proceedings and Usage of
Parliament'. "This work has assumed the status of a classic on the subject
and is usually regarded as an authoritative exposition of parliamentary
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.
Twentieth Edition by Sir Charles Gordon (1983), in Chapter 9 (Penal
Jurisdiction of the Houses of Parliament), it had been stated;
INFLICTED ON MEMBERS In the case of contempts committed against the House of
Commons by Members, two other penalties are available, viz.
from the service of the House and expulsion. In some cases expulsion has been
inflicted in addition to committal.
was a sub-topic as under;
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.
is more convenient to treat it among the methods of punishment at the disposal
of the House.
Twenty-third Edition by Sir William McKay (2004), Chapter 9 titles (Penal
jurisdiction of Both Houses). The relevant discussion reads thus;
OF MEMBERS In the case of contempts committed against the House of Commons by
Members, or where the House considers that a Member's conduct ought to attract
some sanction (see pp. 132-33), two other penalties are available in addition
to those already mentioned :
from the service of the House, and expulsion, sometimes in addition to
sub-topic 'Expulsion', it was stated;
The expulsion by the House of Commons of one of its Members may be regarded as
an example of the House's power to regulate its own constitution, though it is,
for convenience, treated here as one of the methods of punishment at the
disposal of the House.
have been expelled for a wide variety of causes.
basis of above, it was submitted by the learned counsel for the petitioners
that the power of expulsion by Parliament as an independent punishment has not
been recognized by May. It has now remained as part of power to regulate its
own constitution. Since no such power has been possessed by Indian Parliament,
it cannot expel any member.
frankly admit that I am unable to agree with the learned counsel. The Revising
Author refers to punishment of members and in no uncertain terms states that if
the House considers conduct (misconduct) of a Member objectionable attracting
sanction, appropriate punishment can be imposed on him. Over and above other
penalties, 'expulsion' has been specifically and expressly mentioned therein.
As will be seen later on in this judgment, the Framers of our Constitution have
also reserved this right with the Parliament/State Legislature. The above
argument of the petitioners, in my opinion, therefore, does not carry the case
CASES Though several cases have been cited by the learned counsel for both the
sides in support of their contentions and submissions, I will refer to the
cases which related to expulsion of membership of Parliament.
the earliest case was of Mr. Hall. In 1580, Mr. Hall, a Member of House of
Commons published a book containing derogatory remarks against the Members of
the House. On the basis of a complaint, the matter was referred to the
Privilege Committee which found him guilty. In spite of apology tendered by
him, he was committed to the Tower of London for six months, was fined and also
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.
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.
1819, Mr. Hobhouse, a Member of House of Commons wrote a pamphlet making the
but brute force, or the pressing fear of it would reform Parliament".
proceedings were initiated against Hobhouse and he was imprisoned.
1838, Mr. O'Connell, a member of House of Commons said, outside the house of
perjury in the Torry Committees of the House of Commonswho took oaths according
to Justice but voted for Party." He was reprimanded. Mr. Sandham was
likewise admonished in 1930 for levelling allegations against the Members of
reference was made to Bradlough v. Gossett, (1884) 12 QBD 275. In that case, B,
duly elected Member of Borough was refused by the Speaker to administer oath
and was excluded from the House. B challenged the action.
held that the matter related to the internal management of the House of Commons
and the Court had no power to interfere.
Coleridge, C.J. stated;
is said or done within the walls of Parliament cannot be inquired into in a
court of law The jurisdiction of the Houses over their own Members, their right
to impose discipline within their walls, is absolute and exclusive. To use the
words of Lord Ellenborough, "They would sink into utter contempt and
efficiency without it". (Burdett v. Abbot, 14 East 148, 152).
with the contention that the House exceeded its legal process in not allowing B
to take oath which he had right to take, the learned Chief Justice said;
"If injustice has been done, it is injustice for which the courts of law
afford no remedy." An appeal should not be made to the Court but to the
observed by His Lordship in Stockdale v.
(1839) 9 Ad & E 1 : 112 ER 1112 (QB), "the House should have exclusive
jurisdiction to regulate the course of its own proceedings, and animadvert upon
any conduct there in violation of its rules or derogation from its dignity,
stands upon the clearest grounds of necessity." Stephen, J. was much more
specific and emphatic.
legal question which this statement of the case appears to me to raise for our
decision is this:Suppose that the House of Commons forbids one of its members
to do that which an Act of Parliament requires him to do, and, in order to
enforce its prohibition, directs its executive officer to exclude him from the
House by force if necessary, is such an order one which we can declare to be
void and restrain the executive officer of the House from carrying cut? In my
opinion, we have no such power. I think that the House of Commons is not
subject to the control of Her Majesty's Courts in its administration of the
control of Her Majesty's Courts in its administration of that part of the
statute-law which has relation to its own internal proceedings, and that the
use of such actual force as may be necessary to carry into effect such a
resolution as the one before us is justifiable".
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".
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
they misunderstand it, or (I apologize for the supposition) willfully disregard
it, they resemble mistaken or unjust judges; but in either case, there is in my
judgment no appeal from their decision. The law of the land gives no such
appeal; no precedent has been or can be produced in which any Court has ever
interfered with the internal affairs of either House of Parliament, though the
cases are no doubt numerous in which the Courts have declared the limits of
their powers outside of their respective Houses. This is enough to justify the
conclusion at which I arrive".
may not agree with the wider observations of Stephen, J. particularly in the
light of written Constitution and power of Judicial Review conferred on this
Court which has been held to be 'basic feature' of our Constitution. But it
certainly indicates approach of judiciary while dealing with powers, privileges
and rights of Parliament over its members.
also refer to a case which is very much relevant and was referable to a point
in time our Constitution was about to commence.
Garry Allingham, a Member of Parliament got published an article on April 3, 1947 (before few months of Independence
of India) making derogatory remarks against members of the House. A complaint
was made to the House of Commons. Allingham was called upon to explain his
conduct by the House. Allingham offered regrets for unfounded imputations
against Members and tendered unconditional apology and said;
have humbly acknowledged my mistake, and nothing could be more sincere and
heart-felt than my remorse for my action. Having done all that it is humanly
possible to do to put this deeply regretted affair straight, I am content to
submit myself to this House, confident that it will act in its traditional
spirit of justice and generosity".
the close of Allingham's speech a resolution was proposed holding him guilty of
gross contempt of the House and to 'proceed with utmost severity against such
offender'. A motion was moved to suspend Allingham from service of the House
for six months and to deprive him of salary for that period. But an amendment
to the motion was sought to the effect that Allingham be expelled from the
House and finally the amended resolution was passed by the House.
thus clearly established that on the eve of British Empire in this country and on the dawn of Independence of India,
one of the powers and privileges enjoyed by British Parliament was power of
expulsion of a member from Parliament.
I may refer to a post-Constitution case of Mr. Peter Arthus David Baker (1954).
He was a Member of House of Commons. A competent Court of Law held him guilty
of forgery and convicted and sentenced him.
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.
inter alia, stated;
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;
that Mr. Peter Arthus David Baker be expelled from this House." Baker
proved that the House of Commons possessed and continued to possess power to
expel a Member for his objectionable activity not only in the House in his
capacity as a Member as such but also outside the House if it is found to be
otherwise improper, or tarnishing the image of the House in public eye or
making him 'unfit' to continue to be a Member of an august body.
case is also relevant inasmuch as the Constitution (Forty-fourth Amendment)
Act, 1978 by which Article 105(3) has been amended, lays down that whenever a
question of powers, privileges and immunities of Parliament arises, it will be
ascertained whether such power, privilege or immunity was available to the
House of Commons on the day the Amendment came into force, i.e. on June 20,
petitioners strongly relied upon a decision of the Judicial Committee of the
Privy Council in Edward Keilley v. William Carson, (1842) : 4 MOO PC 63 : 13 ER
225. K was a District Surgeon and Manager of Hospital while C was a Member of
Assembly of Newfoundland. C made certain adverse remarks in respect of Hospital
Management by K. K threatened C for criticizing the management and added;
"Your privilege shall not protect you". C complained to the House.
The Committee of Privilege found K guilty of the breach of privilege of the
House and committed him to the goal.
thereupon brought an action of trespass and false imprisonment against the
defendants but failed. Before the Privy Council, one of the questions was as to
whether the Assembly of Newfoundland had power to commit for breach of
privilege, as incident to the House as a legislative body. According to K, the
Assembly did not possess such power. Drawing the distinction between (a)
conquered colonies, and (b) settled colonies, it was urged that in the former,
the power of the Crown was paramount, but in the latter, the Colonists carried
with them the great Charter of Liberty (Magna Carta) that "No man shall be
imprisoned but by the lawful judgment of his peers, or by the law of the
land." The Privy Council held that Newfoundland was a settled and not a conquered colony and the settlers
carried with them such portion of its Common Law and Statute Law as was
conferred and also the rights and immunities of British subjects. The Judicial
Committee held that the Crown did not invest upon the Legislative Assembly of
Newfoundland the power to commit for its contempt.
Committee then proceeded to consider the question thus;
whole question then is reduced to this,--whether by law, the power of
committing for a contempt, not in the presence of the Assembly, is incidental
to every local Legislature.
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.
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.
lex aliquid concedit, concedere videtur et illud, sine qua res ipsa esse non potest."W
In conformity to this principle we feel no doubt that such an Assembly has the
right of protecting itself from all impediments to the due course of its
proceeding. To the full extent of every measure which it may be really
necessary to adopt, to secure the free exercise of their Legislative functions,
they are justified in acting by the principle of the Common Law.
the power of punishing any one for past misconduct as a contempt of its
authority, and adjudicating upon the fact of such contempt, and the measure of
punishment as a judicial body, irresponsible to the party accused, whatever the
real facts may be, is of a very different character, and by no means
essentially necessary for the exercise of its functions by a local Legislature,
whether representative or not. All these functions may be well performed
without this extraordinary power, and with the aid of the ordinary tribunals to
investigate and punish contemptuous insults and interruptions.
powers certainly do not exist in corporate or other bodies, assembled, with
authority, to make bye-laws for the government of particular trades, or united
numbers of individuals. The functions of a Colonial Legislature are of a higher
character, and it is engaged in more important objects;
still there is no reason why it should possess the power in question.
said, however, that this power belongs to the House of Commons in England and this, it is contended, affords
an authority for holding that it belongs as a legal incident, by the Common
Law, to an Assembly with analogous functions. But the reason why the House of
Commons has this power, is not because it is a representative body with
legislative functions, but by virtue of ancient usage and prescription; the lex
et consuetude Parliamenti, which forms a part of the Common Law of the land,
and according to which the High Court of Parliament, before its division, and
the Houses of Lords and Commons since, are invested with many peculiar
privileges, that of punishing for contempt being one. And, besides, this
argument from analogy would prove too much, since it would be equally available
in favour of the assumption by the Council of the Island, of the power of
commitment exercised by the House of Lords, as well as in support of the right
of impeachment by the Assemblya claim for which there is not any colour of
can the power be said to be incident to the Legislative Assembly by analogy to
the English Courts of Record which possess it.
Assembly is no Court of Record, nor has it any judicial functions whatever; and
it is to be remarked that all these bodies which possess the power of
adjudication upon, and punishing in a summary manner, contempts of their authority,
have judicial functions, and exercise this as incident to those which they
possess, except only the House of Commons, whose authority, in this respect,
rests upon ancient usage.
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
supplied) The Council, in the light of above legal position did not approve the
law laid down earlier in Beaumont v.
(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.
submitted that distinguished jurists and eminent judges considered the question
in Keilley and concluded that Assembly of Newfoundland had no power to commit a
person for contempt which was exercised by the British Parliament. The ratio in
Keilley applies with equal force to Indian Parliament and it must be held that
the position of our Parliament is not different than that of Newsouthland and
it also does not possess such power claimed and exercised by British
unable to agree with the learned counsel for the petitioners. In my judgment, Keilley
has no application inasmuch as it was decided in the light of factual,
political and legal background which was totally different. For more than one
reason, the ratio in Keilley cannot be pressed in service in the case on hand.
Firstly, India, after 1950, cannot be termed as a
'colonial country' nor its Legislature Colonial or subordinate.
it was not to derive powers, privileges or prerogatives from the Crown either
expressly or impliedly. Thirdly, after January 26, 1950, it is the written Constitution
which has conferred powers, privileges and immunities on
Parliament/Legislatures and on their members. Fourthly, provisions of the
Constitution themselves expressly conferred certain powers, privileges and
immunities [Arts.105(1), (2); 194 (1), (2)]. It also allowed Parliament to
define them by making an appropriate law and declared that until such law is
enacted, they would be such as exercised by British Parliament on January 26, 1950 [Arts. 105(3), 194(3)]. Fifthly,
the crucial question, in my opinion is not the fact that the Assembly of Newsouthland
had no right to commit a person for contempt but whether or not the British
Parliament possessed such power on January 26, 1950. Sixthly, Keilley was not a member
of Assembly and as such the ruling in that case has no direct bearing on the
issue raised before this Court. Finally, Keilley was a case of committal of a
person to jail and keeping in view the fact situation, the Privy Council
decided the matter which is absent here. For all these reasons, in my
considered opinion, reliance on Keilley is of no assistance to the petitioners.
fact, in a subsequent case in Thomas William Doyle v. George Charles Falconer,
(1866) LR 1 PC 328, the distinction between power to punish for contempt and
power to take other steps had been noted by the Privy Council. It held that the
Legislative Assembly of Dominica did not have the power to punish for contempt
as no such power was possessed by a Colonial Assembly by analogy of lex et
consuetude Parliamenti which was inherent in Houses of Parliament in the United
Kingdom as the High Court of Parliament, or in a Court of Justice as a Court of
Record. A Colonial Assembly had no judicial functions.
Judicial Committee, however, after referring to Keilley and other cases,
proceeded to state;
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.
learned counsel for the Appellants invoked the principles of the Common Law,
and as it must be conceded that the Common Law sanctions the exercise of the
prerogative by which the Assembly has been created, the principles of Common
Law, which is embodied in the maxim, "Quando lex aliquid concedit, concedere
videtur et illud, sine qua res ipsa esse non potest," applies to the body
so created. The question, therefore, is reduced to this : Is the power to
punish and commit for contempt for contempts committed in its presence one
necessary to the existence of such a body as the Assembly of Dominica, and the
proper exercise of the functions which it is intended to execute? It is
necessary to distinguish between a power to punish for a contempt, which is a
judicial power, and a power to remove any obstruction offered to the
deliberations or proper action of a Legislative body during its sitting, which
last power is necessary for self-preservation. If a Member of a Colonial House
of Assembly is guilty of disorderly conduct in the House whilst sitting, he may
be removed, or excluded for a time, or even expelled; but there is a great
difference between such powers and the judicial power of inflicting a penal
sentence for the offence.
right to remove for self-security is one thing, the right to inflict punishment
is another. The former is, in their Lordships' judgment, all that is warranted
by the legal maxim that has been cited, but the latter is not its legitimate
consequence. To the question, therefore, on which this case depends, their
Lordships must answer in the negative.
supplied) (See also Broom's Legal Maxims, 10th Edn; p.314) With respect, the
above observations lay down correct proposition of law.
in Barton v. Taylor, (1886) 11 AC 197, the Privy Council, approving Doyle drew
a practical line between defensive action and punitive action on the part of
the Assembly to be taken against erring members, and said; "Powers to
suspend toties quoties, sitting after sitting, in case of repeated offences
(and, it may be, till submission or apology), and also to expel for aggravated
or persistent misconduct, appear to be sufficient to meet even the extreme case
of a member whose conduct is habitually obstructive or disorderly." An
interesting point of law, which has been raised before this Court was also
raised before the Supreme Court of New South Wales in Armstrong v. Budd, (1969)
71 SR 386 (NSW). Section 19 of the Constitution Act, 1902 laid down that in
certain circumstances, a seat in the Legislative Council would automatically
fall vacant. A was a member of Legislative Council against whom a suit was
filed. During the course of litigation, he gave evidence. The evidence was
disbelieved by the Court and in the judgment, certain strictures were passed by
the trial Judge. The Legislative Council, on the basis of comments and adverse
observations, passed a resolution and expelled A from the Council and declared
his seat vacant. A sought a declaration that the resolution was ultra vires.
contended by A that since his case was not covered by any of the eventualities
enumerated in Section 19, he could not be disqualified. The Court, however, negatived
the contention. It observed that the case did not fall in any of the clauses
(a) to (f) of Section 19 of the Act but stated that the said section did not
constitute a 'complete code' for the vacation of seat.
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.
Lordship further stated;
case appears to me to warrant a decision that in special circumstances there is
an area of misconduct of a Member of Parliament committed outside the House and
disclosed in curial proceedings which may, in special circumstances, form a
basis for the exercise of the power of expulsion based upon a finding by the
House that such is necessary to its existence or to the orderly exercise of its
important legislative functions.
supplied) Wallace, P. agreed with the learned Chief Justice and observed;
of the opinion that the Legislative Council has an implied power to expel a
member if it adjudges him to have been guilty of conduct unworthy of a member.
The nature of this power is that it is solely defensivea power to preserve and
safeguard the dignity and honour of the Council and the power conduct and
exercise of its duties. The power extends to conduct outside the Council
provided the exercise of the power is solely and genuinely inspired by the said
defensive objectives. The manner and the occasion of the exercise of the power
are for the decision of the Counsel. (emphasis supplied) Sugerman, J. in
concurring opinion formulated the doctrine of necessity in an effective manner
by making the following instructive observations;
necessity compels not only the conceded power to expulsion arising from
disorderly conduct within the Chamber, but also expulsion arising from conduct
outside the chamber, which, in the opinion of the Council, renders a man unfit
for service and therefore one whose continued membership of the Council would
disable the Council from discharging its duty and protecting its dignity in the
sense mentioned. That the proper discharge of the legislative function by the
Council demands an orderly conduct of its business is undoubted. That it
demands honesty and probity of its members should be equally undoubted. Indeed,
the need for removal and replacement of a dishonest member may be more
imperative as a matter of self-preservation, than that of an unruly
member". (emphasis supplied) Mr. Andhyarujina, Sr. Advocate appearing for
Union of India placed before this Court particulars of expulsion of members
from the House of Commons in the last three and half centuries. The particulars
are as under;
Member and Constituency Reason 22nd November 1667 John Ashburnham (Sussex) Accepted a bribe (#500 from
merchants who wished to import French wines).
April 1668 Hon. Henry Brouncker (New Romney) Invented orders from the Duke of
York to down sail, which prevented England capitalising on its naval victory
off Lowestoft in 1665.
February 1678 Thomas Wancklyn
(Westbury) Corrupt misuse of the privilege of Parliament against arrest of MP's
March 1679 Edward
Sackville (East Grinstead) Denunciation of Titus Oates as a
'lying rogue' and disbelief in the 'Popish Plot'.
October 1680 Sir Robert Cann, Bt. (Bristol) Statement that the attempt to exclude the Duke of York from the
succession was a 'Presbyterian Plot'.
October 1680 Sir
Francis Wythens (Westminster) Presented a petition abhorring the
summons of a Parliament which would exclude the Duke of York from the
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
January 1690 Sir
Robert Sawyer (Cambridge University) Leading the prosecution of Sir Thomas Armstrong for
treason in the Rye House Plot while Attorney- General. Armstrong was convicted,
sentenced to death and eventually hanged, but his conviction was later ruled a
miscarriage of justice.
March 1695 Sir John
Trevor (Yarmouth, Isle of Wight) Corruption (Speaker of the House of Commons). Paid 1,000
guineas from the Corporation of London on passage of the Orphans Bill.
March 1695 John
Hungerford (Scarborough) Paid 20 guineas from the
Corporation for his conduct as Chairman of the Committee of the Whole House on
the Orphans Bill.
February 1698 Charles Duncombe (Downton) Obliged to pay #10,000 to public
funds, Duncombe bought Exchequer Bills at a 5% discount and persuaded the
seller (John da Costa) to endorse them as though they had been paid to him for
excise duty. This allowed him to pay them in at face value and keep the
February 1698 John
Knight (Weymouth and Melcombe Regis) Persuaded his
brother William and Reginald Marriott, a Treasury Official, falsely to endorse
#7,000 of Exchequer Bills as though they were paid to settle tax payments (this
meant that the Bills, circulated at a 10% discount, increased to their face
to persuade Marriott to take the full blame.
February 1699 James
Isaacson (Banbury) Commissioner of Stamp Duty; this office was a
disqualification under the Lottery Act of 1694.
February 1699 Henry
Cornish (Shaftesbury) Commissioner in the Stamp Office managing Duties on
Vellum, Paper and Parchment; this office was a disqualification under the
Lottery Act of 1694.
February 1699 Samuel
Atkinson (Harwich) Commissioner for licensing hawkers and pedlars; this office
was a disqualification under the Lottery Act of 1694.
February 1699 Sir
Henry Furnese (Bramber) Trustee for circulating Exchequer Bills;
as Receiver and Manager of the subscription of the new East India Company.
These offices were disqualifications under the Lottery Act of 1694.
February 1699 Richard Wollaston
(Whitchurch) Receiver-General of Taxes for Hertfordshire; this office was a
disqualification under the Lottery Act of 1694.
February 1701 Sir
Henry Furnese (Sandwich) Trustee for circulating Exchequer
Bills; this office was a disqualification under the Lottery Act of 1694.
February 1701 Gilbert Heathcote
(City of London) Trustee for circulating Exchequer
Bills; this office was a disqualification under the Lottery Act of 1694.
February 1703 Rt. Hon. Earl of Ranelagh (West Looe) As Paymaster- General of
the Army, appropriated #904,138 of public funds; had severe discrepancies in
his accounts, which were only made up to March 1692.
December 1707 John Asgill
(Bramber) Indebted to three creditors (among them Colonel John Rice) for
of a book which argued that the Bible proved man may be translated from life on
earth to eternal life in heaven without passing through death. The House held
it to be blasphemous. The same member was also expelled from the Irish
Parliament on 11th
February 1711 Thomas Ridge (Poole) Having been contracted to supply the fleet
with 8,217 tuns of beer, supplied only 4,482 tuns from his brewery and paid
compensation at a discounted rate for the non-supplied beer, thereby defrauding
January 1712 Robert
Walpole (King's Lynn) Corruption while Secretary at War.
contracts he negotiated stipulated payments to Robert Mann, a relation of Walpole's, but Walpole signed for them and therefore
received the money.
February 1712 Rt. Hon.
Adam de Cardonnel (Southampton) While Secretary to the Duke of
Marlborough, he received an annual gratuity of 500 gold ducats from Sir Solomon
de Medina, an army bread contractor.
March 1714 Sir Richard
Steele (Stockbridge) Seditious libel.
an article in The Guardian and a pamphlet called The Crisis exposing the
government's support for French inaction on the demolition of Dunkirk;
demolition was required under the Treaty of Utrecht.
February 1716 Thomas
Forster (Northumberland) Participation in the 1715 Jacobite rebellion (he was
General of all the pretender's forces in England).
March 1716 Lewis Pryse
(Cardiganshire) Refused to attend the House to take oaths of loyalty after the Jacobite
June 1716 John
Carnegie (Forfarshire) Participation in the 1715 Jacobite rebellion.
January 1721 Jacob Sawbridge
(Cricklade) Director of the South Sea Company.
January 1721 Sir
Robert Chaplin, Bt. (Great
Grimsby) Director of
the South Sea Company.
January 1721 Francis Eyles
(Devizes) Director of the South Sea Company.
January 1721 Sir
Theodore Janssen, Bt.
(Yarmouth, Isle of Wight) Director of the South Sea Company.
March 1721 Rt. Hon.
John Aislabie (Ripon) Negotiated the agreement to take over the national debt
between the South Sea Company and the government, as Chancellor of the
Exchequer; received #20,000 of South Sea Company stock;
evidence of his share dealings.
March 1721 Sir George Caswall
(Leominster) Banker of the South Sea Company;
for his company #50,000 stock in the South Sea Company while the South Sea Bill
was still before Parliament, and without paying for it.
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.
February 1723 Viscount
Barrington (Berwick- upon-Tweed) Involvement in a Lottery held in Hanover, but organized in London. The House declared it illegal.
February 1725 Francis Elde
(Stafford) Corrupt attempt to compromise an
election petition against him.
May 1726 John Ward (Weymouth and Melcombe Regis) Involved in a
fraud against the estate of the late Duke of Buckingham - compelled to buy Alum
from Ward's Alum works, but which Ward kept and sold again to others.
March 1732 John Birch (Weobley) Fraudulent sale of the Derwentwater Estate (escheated
to the Crown by the Earl of Derwentwater, convicted of High Treason during the
March 1732 Denis Bond (Poole) Fraudulent sale of the Derwentwater Estate
(escheated to the Crown by the Earl of Derwentwater, convicted of High Treason
during the 1715 rebellion).
April 1732 George
Robinson (Great Marlow) Fraudulent use of the funds of the Charitable
Corporation for speculation.
#356,000 of funds (#200,000 of which was in shares of the Corporation) into
buying York Buildings Company stock, the profits from the sale of which were
given to him.
May 1732 Rt. Hon. Sir
Robert Sutton (Nottinghamshire) False statement that the Charitable
Corporation's authorized capital had been exhausted, allowing it to issue more
(and so finance the corrupt speculation of other directors).
May 1732 Sir Archibald
Fraudulent use of the funds of the Charitable Corporation for speculation.
for George Robinson (see above) to abscond.
January 1764 John Wilkes
(Aylesbury) Absconded to France after being charged with libel over
issue no. 45 of the North Briton.
February 1769 John Wilkes (Middlesex) Previous conviction for libel and
blasphemy, and a further seditious libel in the Introduction to a letter to
Daniel Ponton (Chairman of Quarter Sessions at Lambeth) in the St.
(17th February 1769 John Wilkes (Middlesex) Returned
despite his previous expulsion.
House resolved that he "was, and is, incapable of being elected a Member
to serve in the present Parliament.") 4th December 1783 Christopher Atkinson (Hedon)
Convicted of perjury after swearing that accusations against him of fraud were
untrue. The accusations related to his dealings with the Victualling Board, and
were in a letter printed in the General Advertiser on 31st January 1781.
May 1796 John Fenton Cawthorne
(Lincoln) Convicted by court martial of
fraud and embezzlement of the funds of the Westminster Regiment of the
for conduct unbecoming the character of an officer and a gentleman.
May 1810 Joseph Hunt (Queenborough)
Absconded to Lisbon after being found to have embezzled
public funds as Treasurer of the Ordnance.
his term he left a deficit of #93,296.
March 1812 Benjamin Walsh
(Wootton Bassett) Convicted (later pardoned) of attempting to defraud
Solicitor- General Sir Thomas Plumer. Plumer had given Walsh a draft of #22,000
with which to buy exchequer bills, but Walsh used it to play the lottery, and
then converted his remaining assets into American currency and set off for Falmouth to sail to America, but was brought back. Walsh had
been expelled by the Stock Exchange for gross and nefarious conduct in 1809.
July 1814 Hon. Andrew
James Cochrane (Grampound) Convicted of conspiracy to defraud (circulated false
rumours of the defeat and death of Napoleon Buonaparte in order to boost share
prices); absconded to France before sentence.
July 1814 Lord
Cochrane (Westminster) Convicted of conspiracy to defraud
(circulated false rumours of the defeat and death of Napoleon Buonaparte in
order to boost share prices).
February 1857 James Sadleir
(Tipperary) Absconded after arrest for
fraudulent conversion. He had abstracted #250,000 of stock from the Tipperary
Joint- Stock Bank for his brother's use.
February 1882 Charles Bradlaugh
(Northampton) Contempt of orders of the House of
Commons excluding him from the Parliamentary estate.
May 1891 Edmund Hope Verney
(Buckingham) Convicted of procuring a girl under the age of 21 (Miss Nellie
Maud Baskett) for an immoral purpose.
February 1892 Edward
Samuel Wesley de Cobain (Belfast, East) Absconded to the United States of America after a warrant for his arrest on
charges of commission of acts of gross indecency was issued. On 21st March 1893 he was convicted and sentenced to
twelve months' imprisonment with hard labour.
March 1892 George Woodyatt
Hastings (Worcestershire, Eastern) Convicted of fraudulent conversion. As a
Trustee for property under the will of John Brown, appropriated to himself over
#20,000 from the estate.
August 1922 Horatio
William Bottomley (Hackney, South) Convicted of fraudulent conversion. Invited
contributions to the Victory Bond Club which were supposed to be invested in
government stock, but were actually diverted to his own use.
October 1947 Garry Allighan
(Gravesend) Contempt of the House of Commons:
of privilege over article in 'World's Press News' alleging corruption and
drunkenness among Members; lying to the committee investigating the
December 1954 Peter
Arthur David Baker (Norfolk, South) Convicted of uttering
forged documents. Forged signatures on letters purporting to guarantee debts in
excess of #100,000 owed by his companies.
LAW : HistoriaI Background It is no doubt true that the existing law relating
to parliamentary privileges in India is
essentially of English origin. But the concept of parliamentary privileges was
not unknown to ancient India. Prititosh Roy in his work
'Parliamentary Privilege in India' (1991) states that even during Vedic times,
there were two assemblies; Sabha and Samiti which were keeping check on all
actions of the King. Reference of Sabha and Samiti is found in all Vedas. In
Buddhist India, we find developed parliamentary system. Members were not
allowed to disobey directions of Assemblies. Offenders were answerable to
Assemblies and after affording an opportunity to them, appropriate actions used
to be taken against erring officers. It has thus 'rudimentary features' of
parliamentary privilege of today.
1600, East India Company came to India primarily as 'trader'. The British Parliament effectively intervened
into the affairs of the Company by passing the East India Company Act, 1773
(popularly known as 'the Regulating Act, 1773'), which was followed by the Act
of 1784. The roots of modern Parliamentary system were laid in various Charter
Acts of 1833, 1853, 1854, 1861, 1892, 1909, etc.
1915-50, there was remarkable growth and development of Parliamentary
privileges in India. For the first time, a limited
right of freedom of speech was conferred on the Members of Legislature by the
Government of India Act, 1919 (Section 67). By the Legislative Members
Exemption Act, 1925, two parliamentary privileges were allowed to Members; (i)
exemption from jury service; and (ii) freedom from arrest.
Government of India Act, 1935 extended the privileges conferred and immunities
granted. The Indian Independence Act, 1947 accorded sovereign legislative power
on the Indian Dominion.
PROVISIONS The Constitution of India came into force from January 26, 1950. Part V contains the relevant
provisions relating to the Union. Whereas
Chapters I and IV deal with the Executive and Judiciary; Chapters II and III
relate to Parliament. Articles 79 to 88 provide for constitution, composition,
duration, etc. of both the Houses and qualification of members, Articles 89 to
98 make provisions for election of Speaker, Deputy Speaker, Chairman, Deputy
Chairman and their salaries and allowances. Article 101 deals with vacation of
seats and Article 102 specifies circumstances in which a person is held
disqualified to be chosen as or continued to be a Member of Parliament. Article
103 attaches finality to such decisions.
Articles are relevant and may be reproduced;
No person shall
be a member of both Houses of Parliament and provision shall be made by
Parliament by law for the vacation by a person who is chosen a member of both
Houses of his seat in one House or the other.
No person shall be a member both of Parliament and of a House of the Legislature
of a State, and if a person is chosen a member both of Parliament and of a House
of the Legislature of a State, then, at the expiration of such period as may be
specified in rules made by the President, that person's seat in Parliament shall
become vacant, unless he has previously resigned his seat in the Legislature of
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:
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.
If for a period
of sixty days a member of either House of Parliament is without permission of
the House absent from all meetings thereof, the House may declare his seat
that in computing the said period of sixty days no account shall be taken of
any period during which the House is prorogued or is adjourned for more than
four consecutive days.
Disqualifications for membership.
A person shall
be disqualified for being chosen as, and for being, a member of either House of
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 acknowledgment of allegiance or
adherence to a foreign State;
if he is so
disqualified by or under any law made by Parliament.
the purposes of this clause a person shall not be deemed to hold an office of
profit under the Government of India or the Government of any State by reason
only that he is a Minister either for the Union
or for such State.
A person shall
be disqualified for being a member of either House of Parliament if he is so
disqualified under the Tenth Schedule.
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.
105 provides for powers, privileges and immunities of the members of
Parliament. It is the most important provision as to the controversy raised in
the present proceedings, and may be quoted in extenso;
privileges, etc., of the Houses of Parliament and of the members and committees
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 any
thing said or any vote given by him in Parliament or any committee thereof, and
no person shall be so liable in respect of the publication by or under the
authority of either House of Parliament of any report, paper, votes or proceedings.
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)
of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of
this Constitution have the right to speak in, and otherwise to take part in the
proceedings of, a House of Parliament or any committee thereof as they apply in
relation to members of Parliament. (emphasis supplied) Articles 107-22 contain
provisions as to legislative procedure. Article 118 enables both the Houses of
Parliament to make Rules for regulating procedure and conduct of business.
Article 121 puts restriction on discussion in Parliament in respect of conduct
of any Judge of the Supreme Court or of a High Court in the discharge of his
duties. Article 122 prohibits courts from inquiring into or questioning the
validity of any proceedings in Parliament on the ground of irregularity of
procedure. It reads thus;
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.
supplied) EXPULSION OF MEMBERS BY PARLIAMENT There are certain instances
wherein Indian Parliament has exercised the power of expulsion of its members.
first case which came up for consideration before Parliament was of Mr. H.G. Mudgal,
a Member of Lok Sabha. He suppressed certain material facts as to his relationship
with the Bombay Bullion Association. A Committee of Enquiry found the charges
proved and came to the conclusion that the conduct of the Hon'ble Member was
'derogatory of the dignity of the House inconsistent with the standard which
Parliament is entitled to expect from its members'.
addressing the House, the then Prime Minister Pandit Jawaharlal Nehru referred
to the work of Sir Erkskine May, Article 105(3) of the Constitution and
practice in the British House.
Pt. Nehru, in my opinion, rightly added;
from that, even if the Constitution had made no reference to this, this House
as a sovereign Parliament must have inherently the right to deal with its own
problems as it chooses and I cannot imagine anybody doubting that fact".
supplied) Regarding approach of House in such cases, he said;
I do not think it is normally possible for this House in a sense to convert
itself into a court and consider in detail the evidence in the case and then
come to a decision. Of course : the House is entitled to do so : but it is
normally not done : nor is it considered, the proper procedure".
question arises whether in the present case this should be done or something
else. I do submit that it is perfectly clear that this case is not even a case
which might be called a marginal case, where people may have two opinions about
it, where one may have doubts if a certain course suggested is much too severe.
The case, if I may say so, is as bad as it could well be. If we consider even
such a case as a marginal case or as one where perhaps a certain amount of
laxity might be shown, I think it will be unfortunate from a variety of points
of view, more especially because, this being the first case of its kind coming
up before the House, if the House does not express its will in such matters in
clear, unambiguous and forceful terms, then doubts may very well arise in the
public mind as to whether the House is very definite about such matters or not.
Therefore, I do submit that it has become a duty for us and an obligation to be
clear, precise and definite. The facts are clear and precise and the decision
should also be clear and precise and unambiguous. And I submit the decision of
the House should be, after accepting the finding of this report, to resolve
that the Member should be expelled from the House".
motion was then moved to expel Mr. Mudgal which was accepted by the House and
Mr. Mudgal was expelled.
power of expulsion was exercised by Parliament against Mr. Subramanyam Swami (Rajya
Sabha) and Mrs. Indira Gandhi (Lok Sabha). The power was also exercised in case
of expulsion from Legislative Assemblies of various States.
and Shakhder in their book 'Practice and Procedure of Parliament', (5th Edn.,
of Members: In the case of its own members, two other punishments are also
available to the House by which it can express its displeasure more strongly
than by admonition or reprimand, namely, suspension from the service of the
House and expulsion.
OF MEMBERS AND COURTS Concrete cases have also come before Indian Judiciary
against orders of expulsion passed by the Legislature. Let us consider leading
decisions on the point.
as this Court is concerned, probably this is the first case of the type and,
therefore, is of extreme importance. Few cases, which had come up for
consideration earlier did not directly deal with expulsion of membership from
Legislature. As already noted above, though in some cases, Parliament had taken
an action of expelling its members, the aggrieved persons had not approached
first case which came to be decided by the Constitution Bench of this Court was
M.S.M. Sharma v.
Sri Krishna Sinha & Ors., 1959 Supp (1) SCR 806 :
1959 SC 395 ('Searchlight' for short). The petitioner, who was Editor of
English daily newspaper 'Searchlight' published unedited proceedings of the
Assembly. The Legislative Assembly issued a notice for violating privilege of
the House and proposed to take action. The petitioner challenged the
proceedings inter alia contending that they were in violation of fundamental
right of free speech and expression guaranteed under Article 19 (1)(a) read
with right to life under Article 21 of the Constitution.
Article 194(3) [which is pari materia to Article 105(3)] of the Constitution,
and referring to English Authorities, Das, CJ observed (for the majority);
result of the foregoing discussion, therefore, is that the House of Commons had
at the commencement of our Constitution the power or privilege of prohibiting
the publication of even a true and faithful report of the debates or
proceedings that take place within the House. A fortiori the House had at the
relevant time the power or privilege of prohibiting the publication of an
inaccurate or garbled version of such debates or proceedings. The latter part
of Art. 194(3) confers all these powers, privileges and immunities on the House
of the Legislature of the States, as Art. 105(3) does on the Houses of Parliament.
construction of Article 194(3), His Lordship stated;
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.
supplied) Harmoniously interpreting and reconciling Articles 194(3) and 19(1)(a),
the Court held that in respect of parliamentary proceedings, Article 19(1)(a)
had no application.
thus clear that Searchlight had nothing to do with expulsion of a member,
though it was relevant so far as construction of Article 194(3) was concerned.
leading case of this Court was Powers, Privileges and Immunities of State
Legislatures, Article 143 of the Constitution, Re ('Keshav Singh' for short),
(1965) 1 SCR 413 : AIR 1965 SC 745. Though Keshav Singh was not a case of
expulsion of a member of Legislature, it is important as in exercise of
'advisory opinion' under Article 143 of the Constitution, a larger Bench of
seven Judges considered various questions, including powers, privileges and
immunities of the Legislature.
that case, K, who was not a member of the House, published a pamphlet. He was
proceeded against for contempt of the House and breach of privilege for
publishing a pamphlet and was sent to jail. K filed a petition for habeas
corpus by engaging S as his advocate and a Division Bench of two Judges of the
High Court of Allahabad (Lucknow Bench) released him on bail. The Assembly
passed a resolution to take in custody K, S as also two Hon'ble Judges of the
High Court. Both the Judges instituted a writ petition in the High Court of Allahabad.
A Full Court on judicial side admitted the
petition and granted stay against execution of warrant of arrest against
Judges. In the unusual and extraordinary circumstances, the President of India
made reference to this Court under Article 143 of the Constitution.
the questions referred to by the President related to Parliamentary privileges vis-`-vis
power of Court. It read thus;
Whether, on the facts and circumstances of the case, it was competent for the
Full Bench of the High Court of Uttar Pradesh to entertain and deal with the
petitions of the said two Hon'ble Judges and Mr. B. Solomon, Advocate, and to
pass interim orders restraining the Speaker of the Legislative Assembly of
Uttar Pradesh and other respondents to the said petitions from implementing the
aforesaid direction of the said Legislative Assembly.
considering the ambit and scope of Article 194(3) and jurisdiction of the
Legislature and the power of judicial review of the High Court under Article
226, the learned Chief Justice gave a golden advice stating;
coming to the conclusion that the content of Art. 194(3) must ultimately be
determined by courts and not by the legislatures, we are not unmindful of the
grandeur and majesty of the 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.
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.
two august bodies as well as the Executive which is another important
constituent of a democratic State, must function not in antinovel nor in a
spirit of hostility, but rationally, harmoniously and in spirit of
understanding within their respective spheres, for such harmonious working of
the three constituents of the democratic state alone will help the peaceful
development, growth and stabilization of the democratic way of life in this
when, as in the present case, a controversy arises between the House and the
High Court, we must deal with the problem objectively and impersonally. There
is no occasion to import heat into the debate or discussion and no
justification for the use of strong language. The problem presented to us by
the present reference is one of construing the relevant provisions of the
Constitution and though its consideration may present some difficult aspects,
we must attempt to find the answers as best as we can. In dealing with a
dispute like the present which concerns the jurisdiction, the dignity and the
independence of two august bodies in a State, we must remember that the
objectivity of our approach itself may incidentally be on trial. It is,
therefore, in a spirit of detached objective enquiry which is the distinguishing
feature of judicial process that we propose to find solutions to the questions
framed for our advisory opinion. If ultimately we come to the conclusion that
the view pressed before us by Mr. Setalvad for the High Court is erroneous, we
would not hesitate to pronounce our verdict against that view. On the other
hand, if we ultimately come to the conclusion that the claim made by Mr. Seervai
for the House cannot, be sustained, we would not falter to pronounce our
verdict accordingly. In dealing with problems of this importance and
significance, it is essential that we should proceed to discharge our duty
without fear or favour, affection or ill-will and with the full consciousness
that it is our solemn obligation to uphold the Constitution and the laws.
supplied) Then analyzing Article 194(3), the Court stated;
takes us to clause (3). The first part of this clause empowers the Legislatures
of States to make laws prescribing their powers, privileges and immunities; the
latter part provides that until such laws are made, the Legislatures in
question shall enjoy the same powers, privileges and immunities which the House
of Commons enjoyed at the commencement of the Constitution. The
Constitution-makers must have thought that the Legislatures would take some
time to make laws in respect of their powers, privileges and immunities. During
the interval, it was clearly necessary to confer on them the necessary powers,
privileges and immunities. There can be little doubt 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).
requires that the powers, privileges and immunities which are claimed by the
House must be shown to have subsisted at the commencement of the Constitution,
i.e., on January 26,
150. It is well-known
that out of a large number o privileges and powers which the House of Commons
claimed during the days of its bitter struggle for recognition, some were given
up in course of time, and some virtually faded out by desuetude; and so, in
every case where a power is claimed, it is necessary to enquire whether it was
an existing power at the relevant time. It must also appear that the said power
was not only claimed by the House of Commons, but was recognised by the English
Courts. It would obviously be idle to contend that if a particular power which
is claimed by the House was claimed by the House of Commons but was not recognised
by the English courts, it would still be upheld under the latter part of clause
(3) only on the ground that it was in fact claimed by the House of Commons. In
other words, the inquiry which is prescribed by this clause is : is the power
in question shown or proved to have subsisted in the House of Commons at the
relevant time ? It would be recalled that Art. 194(3) consists of two parts.
The first part empowers the Legislature to define by law from time to time its
powers, privileges and immunities, whereas the second part provides that until
the legislature chooses so to define its powers, privileges and immunities, its
powers, privileges and immunities would be those of the House of Commons of the
Parliament of the United Kingdom and of its members and committees, at the
commencement of the Constitution. Mr. Seervai's argument is that the latter
part of Art. 194(3) expressly provides that all the powers which vested in the
House of Commons at the relevant time, vest in the House. This broad claim,
however, cannot be accepted in its entirety, because there are some powers
which cannot obviously be claimed by the House. Take the privilege of freedom
of access which is exercised by the House of Commons as a body and through its
Speaker "to have at all times the right to petition, counsel, or
remonstrate with their Sovereign through their chosen representative and have a
favorable construction placed on his words was justly regarded by the Commons
as fundamental privilege". It is hardly necessary to point out that the
House cannot claim this privilege. Similarly, the privilege to pass acts of
attainder and the privilege of impeachment cannot be claimed by 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. This privilege again,
admittedly, cannot be claimed by the House.
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
to conflict between two august organs of the State and complimenting the
solution adopted by them in England, the
learned Chief Justice said;
been common ground between the Houses and the courts that privilege depends on
the "known laws and customs of Parliament", and not on the ipse dixit
of either House. The question in dispute was whether the law of Parliament was
a "particular" law or part of the common law in its wide and extended
sense, and in the former case whether it was a superior law which overrode the
common law. Arising out of this question another item of controversy arose
between the courts and the Parliament and that was whether a matter of
privilege should be judged solely by the House which it concerned, even when
the rights of third parties were involved, or whether it might in certain cases
be decided in the courts, and, if so, in what sort of cases. The points of view
adopted by the Parliament and the courts appeared to be irreconcilable. The
courts claimed the right to decide for themselves when it became necessary to
do so in proceedings brought before them, questions in relation to the
existence or extent of these privileges, whereas both the Houses claimed to be
exclusive judges of their own privileges.
the two points of view were reconciled in practice and a solution acceptable to
both he parties was gradually evolved. This solution which is marked out by the
courts is to insist on their right in principle to decide all questions of
privilege arising in litigation before them, with certain large exceptions in favour
of parliamentary jurisdiction. Two of these are the exclusive jurisdiction of
each House over its own internal proceedings, and the right of either House to
commit and punish for contempt. May adds that while it cannot be claimed that
either House has formally acquiesced in this assumption of jurisdiction by the
courts, the absence of any conflict for over a century may indicate a certain measure
of tacit acceptance.
other words, 'the question about the existence and extent of privilege is
generally treated as justiciable in courts where it becomes relevant for
adjudication of any dispute brought before the courts.
regard to punishment for contempt, a similar process of give and take by
convention has been in operation and gradually a large area of agreement has,
in practice, been evolved. Theoretically, the House of Commons claims that its
admitted right to adjudicate on breaches of privilege implies in theory the
right to determine the existence and extent of the privileges themselves. It
has never expressly abandoned this claim. On the other hand, the courts regard
the privileges of Parliament as part of the law of the land, of which they are
bound to take judicial notice. They consider it their duty to decide any
question of privilege arising directly or indirectly in a case which falls
within their jurisdiction, and to decide it according to their own
interpretation of the law. 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 decision of the House by the courts; and as May points out, on the
theoretical plane, the old dualism remains unresolved. In practice, however,
"there is much more agreement on the nature and principles of privilege
than the deadlock on the question of jurisdiction would lead one to
expect" and May describes these general conclusions in the following words
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.
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.
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
That the control
of each House over its internal proceedings is absolute and cannot be
interfered with by the courts.
That a committal
for contempt by either House is in practice within its exclusive jurisdiction,
since the facts constituting the alleged contempt need not be stated on the
warrant of committal.
tribute to English genius, the learned Chief Justice proceeded to observe;
a tribute to the remarkable English genius for finding pragmatic ad hoc
solutions to problems which appear to be irreconcilable by adopting the
conventional method of give and take. The result of this process has been, in
the words of May, that the House of Commons has not for a hundred years refused
to submit its privileges to the decision of the courts, and so, it may be said
to have given practical recognition to the jurisdiction of the courts over the
existence and extent of its privileges. On the other hand, the courts have
always, at any rate in the last resort, refused to interfere in the application
by the House of any of its recognized privileges. That broadly stated, is, the
position of powers and privileges claimed by the House of Commons.
Article 212 in its proper perspective and drawing distinction between
'irregularity' and 'illegality', the Court stated;
212(1) makes a provision which is relevant. It lays down that the validity of
any proceedings in the Legislature of a State shall not be called in question
on the ground of any alleged irregularity of procedure. Art.
confers immunity on the officers and members of the Legislature in whom powers
are vested by or under the Constitution for regulating procedure or the conduct
of business, or for maintaining order, in the Legislature from being subject to
the jurisdiction of any court in respect of the exercise by him of those
powers. Art. 212(1) seems to make it possible for a citizen to call in question
in the appropriate court of law the validity of any proceedings inside the
legislative chamber if his case is that the said proceedings suffer not from
mere irregularity of procedure, but from an illegality. If the impugned
procedure is illegal and unconstitutional, it would be open to be scrutinised
in a court of law, though such scrutiny is prohibited if the complaint against
the procedure is no more than this that the procedure was irregular. That again
is another indication which may afford some assistance in construing the scope
and extent of the powers conferred on the House by Art. 194(3).
opinion of this Court in Keshav Singh thus is of extreme importance. Though it
did not deal with the question of expulsion directly or even indirectly, it
interpreted the relevant and material provisions of the Constitution relating
to the powers, privileges and immunities of Parliament/State Legislature
keeping in view the powers, privileges and immunities enjoyed by the British
now consider few High Court decisions on the point which are directly on the
Narain v. Atmaram Govind & Anr., AIR 1954 All 319, the petitioner who was
an elected representative of the Legislative Assembly of Uttar Pradesh wanted
to move a motion in connection with forcible removal by police of three
teachers who were on hunger-strike.
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.
the Judges forming the Division Bench ordered dismissal of the petition by
recording separate reasons. Sapru, J. conceded that withdrawal of a member form
the House even for a brief period was a serious matter both for the member as
well as for his constituency but disciplinary or punitive action for disorderly
behaviour of a member could be taken.
J. took the same view. His Lordship further held that 'the House is the sole
Judge of its own privileges'.
Rao Meghawale v. Madhya Pradesh Legislative Assembly & Ors., AIR 1967 MP
95, the petitioner obstructed the proceedings in the House, jumped on the dias
and assaulted the Deputy Speaker.
motion of expulsion of the petitioner was moved and was passed. The petitioner
challenged the action by approaching the High Court under Article 226 of the
contended on behalf of the petitioner that the House of Commons has the right
to provide for its own constitution and power to fill vacancies. And it was
because of that power that it could expel a member.
the Legislative Assembly of M.P. had no such right, it could not expel a
Court, however, negatived the contention. It observed that though Indian
Legislature has no right to provide for its own composition nor for filling of
vacancies in the House, nor to try election disputes, nevertheless it has power
to expel a member for proper functioning, protection and self-preservation. The
Court noted that as held by the Privy Council, even Colonial Legislatures have
opinion, by holding so, the Division Bench has not committed any error of law
nor the observations are inconsistent with settled legal position.
make mention of a Full Bench decision of the High Court of Punjab & Haryana
in Hardwari Lal v.
Commission of India, ILR (1977) 2 P & H 269 (FB).
The High Court was expressly and specifically called upon to decide whether a
State Legislature has power to expel its member. A Bench of five Judges
exhaustively considered the question in detail. Whereas the majority negatived
such right, the minority ruled otherwise and upheld it. The petitioners heavily
relied upon the reasons recorded and conclusions reached by Sandhawalia, J.
(majority view). The respondents, on the other hand, strongly adverted to
observations and considerations of Narula, CJ (minority view). It would,
therefore, be appropriate if I deal with both the view- points.
learned Chief Justice firstly considered the scope and applicability of clause
(3) of Article 194 [similar to clause (3) of Article 105] of the Constitution
and held that to determine whether a particular privilege falls in the
exceptional category or not is that as soon as a particular privilege is claimed
by the Legislature and is disputed or contested, it must be inquired whether
such a privilege was available to the House of Commons on January 26, 1950, and
then to decide whether the said privilege is or is not compatible or consistent
with the provisions of the Constitution. If it is not inconsistent with the
provisions of the Constitution, it can be claimed by the Legislature under
was, therefore, held that "whenever it is found that the Commons did enjoy
a particular privilege, power or immunity at the relevant time, it must be
deemed to have been written with pen and ink in clause (3) of Article 194, and
it is only when a dispute arises whether in the nature of things the particular
privilege or power can actually be expressed, claimed or enjoyed that the Court
will scrutinize the matter and without deleting the same from the list hold
that notwithstanding the power or privilege being there it cannot be exercised,
either because it is humanly impossible to do so or because the extension of
the privilege of the Commons would contravene some express or special provision
of the Constitution".
the main question as to the right of the Legislature to expel a member, it was
admitted that Indian Legislature had no privilege to provide for its own
composition, but it is no ground to deny the right to the House to expel a
member as a means of punishment for misconduct. Referring to a series of cases,
it was held that "independent of the power and privilege of the House of Commons
to constitute itself it did have and exercised at the time of coming into force
of our Constitution the power to expel its members by way of punishment for
misconduct or for breach of privilege or for committing contempt of the
House." The majority, on the other hand, took a contrary view. Sandhawalia,
J., considering historical development of law as to parliamentary privileges,
context of an unwritten Constitution in England, the House of Commons has
undoubtedly claimed and enjoyed the privilege of providing for and regulating
its own Constitution from the very earliest times. This privilege in terms and
in effect implies and includes all powers to control the composition of the
House and to determine the identity of its membership.
however, having held so, the majority adopted an incorrect approach thereafter.
this Court in Keshav Singh held that the privilege enjoyed by the House of
Commons in England in regard to its constitution had
been expressed in three ways;
by the order of
new writs to fill vacancies that arise in the Commons in the course of a
by the trial of
controversial elections; and
the questions of its members in cases of doubt;
High Court (majority) added one more category (expulsion of a member) stating
that the power of expulsion was another example (fourth category) of the power
to the House to determine its own composition.
ancient English precedents as 'not only wasteful but dangerous', the majority
uncanalised power of expulsion in the House of Commons stems from its ancient
and peculiar privileges of determining its own composition which in turn arises
for long historical reasons and because of the unwritten Constitution in England." (emphasis supplied) With
respect, the majority was not right in coming to the aforesaid conclusion and I
am unable to read legal position as envisaged by Sandhawalia, J.
In K. Anbazhagan
& Ors. V. Secretary, Tamil Nadu Legislative Assembly, Madras & Ors.,
AIR 1988 Mad 275, some of the members of Tamil Nadu Legislative Assembly were
expelled for burning the Constitution considering the conduct as unworthy of
members of Legislative Assembly. The action was challenged in the High Court.
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.
Court observed that in Keshav Singh, it was held by the Supreme Court that
Indian Legislatures have no privilege to provide for its own constitution. But
it rightly proceeded to consider the controversy by observing that the question
was whether the power of expulsion exercised by the House of Commons was to be
'wholly and exclusively treated as a part of the privilege in regard to its
constitution'. Then considering English authorities and various other decisions
on the point; the Court held that such power was possessed by the Legislature
and was available in appropriate cases.
judgment, the right to expel a member is distinct, separate and independent of
right to provide for the due constitution or composition of the House and even
in absence of such power or prerogative, right of expulsion is possessed by a
Legislature (even a Colonial Legislature), which in appropriate cases can be
also supported in taking this view from the discussion the Constituent Assembly
had and the final decision taken.
the provisions relating to powers, privileges and immunities of Parliament and
State Legislatures were considered by the Constituent Assembly, conflicting
views were expressed by the Hon'ble Members. One view was in favour of making
such provisions exhaustive by incorporating them in the Constitution. The other
view, however, was to include few specific and express rights in the
Constitution and to adopt the rest as were available to House of Commons in
discussion throws light on different views expressed by the Members of
Assembly. On May 19, 1949, when the matter came up for consideration, Shri Alladi
Krishnaswami Ayyar stated;
Krishnaswami Ayyar (Madras : General) : Sir, in regard to the article as it
stands, two objections have been raised, one based upon sentiment and the other
upon the advisability of making a reference to the privileges of a House in
another State with which the average citizen or the members of Parliament here may
not be acquainted with.
first place, so far as the question of sentiment is concerned, I might share it
to some extent, but it is also necessary to appreciate it from the practical
point of view.
common knowledge that the widest privileges are exercised by members of
Parliament in England. If the privileges are confined to the existing
privileges of legislature in India as at present constituted, the result will
be that a person cannot be punished for contempt of the House. The actual question
arose in Calcutta as to whether a person can be punished for contempt of the
provincial legislature or other legislatures in this country.
been held that there is no power to punish for contempt any person who is
guilty of contempt of the provincial or even the Central Legislature, whereas
the Parliament in England has the inherent right to punish for contempt. The
question arose in the Dominions and the Colonies and it has been held that by
reason of the wide wording in the Australian Commonwealth Act as well as in the
Canadian Act the Parliament in the both places have powers similar to the
powers possessed by the Parliament in England and therefore have the right to
punish for contempt. Are you going to deny to yourself that power? That is the question.
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.
speak subject to correction because I was present at one stage and was not
present at a later stage. Under these circumstances I submit there is
absolutely to question of infra dig. We are having the English language. We are
having our Constitution in the English language side by side with Hindi for the
time being. Why object only to reference to the privileges in England? The
other point is that there is nothing to prevent the Parliament from setting up
the proper machinery for formulating privileges.
article leaves wide scope for it. "In other respects, the privileges and
immunities of members of the Houses shall be such as may from time to time be
defined by Parliament by law and, until so defined, shall be such as are
enjoyed by the members of the House of Commons of the Parliament of the United
Kingdom at the commencement of this Constitution". That is all what the
does not in any way fetter your discretion.
enlarge the privileges, you may curtail the privileges, you may have a
different kind of privileges. You may start on your own journey without
reference to the Parliament of Great Britain. There is nothing to fetter the
discretion of the future Parliament of India.
as a temporary measure, the privileges of the House of Commons are made
applicable to this House. Far from it being infra dig, it subordinates the
reference to privileges obtained by the members of Parliament in England to the
privileges which may be conferred by this Parliament by its own enactments.
Therefore there is no infra dig in the wording of class (3).
practice has been followed in Australia, in Canada and in other Dominations
with advantage and it has secured complete freedom of speech and also the
omnipotence of the House in every respect. Therefore we need not fight shy of
borrowing to this extent, when we are borrowing the English language and when
we are using constitutional expressions which are common to England. You are
saying that it will be the same as those enjoyed by the members of the House of
Commons. It is far from that. Today the Parliament of the United Kingdom is
exercising sway over Great Britain, over the Dominions and others. To say that
you are as good as Great Britain is not a badge of inferiority but an assertion
of your own self- respect and also of the omnipotence of your Parliament.
Therefore, I submit, Sir, there is absolutely no force in the objection made as
to the reference to the British Parliament. Under these circumstances, far from
this article being framed in a spirit of servility or slavery or subjection to
Britain, it is framed in a spirit of self-assertion and an assertion that our
country and our Parliament are as great as the Parliament of Great Britain.
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.
when draft Article 169 (Present Article 194) came up before the House on June
3, 1949, again, the matter was discussed at length.
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;
privileges of Parliament extend, for instance, to the rights of Parliament as
against the public. Secondly, they also extend to rights as against the
individual members. For instance, under the House of Commons' power and
privileges it is open to Parliament to convict any citizen for contempt of
Parliament and when such privilege is exercised the jurisdiction of the court
is ousted. That is an important privilege. Then again, it is open to Parliament
to take action against any individual member of Parliament for anything that
has been done by him which brings Parliament into disgrace. These are very
grave matters-e.g., to commit to prison. the right to lack up a citizen for
what parliament regards as contempt of itself is not an easy matter to define.
Nor is it easy to say what are the acts and deeds of individual members which
bring Parliament into disrepute. (emphasis supplied) He further stated;
proceed. It is not easy, as I said, to define what are the acts and deeds which
may be deemed to bring Parliament into disgrace. That would require a
considerable amount of discussion and examination. That is one reason why we
did not think of enumerating, these privileges and immunities.
there is not the slightest doubt in my mind and I am sure also in the mind of
the Drafting Committee that Parliament must have certain privileges, when that
Parliament would be so much exposed to calumny, to unjustified criticism that
the parliamentary institution in this country might be brought down to utter
contempt and may lose all the respect which parliamentary institutions should
have from the citizens for whose benefit they operate.
referred to one difficulty why it has not been possible to categorise. Now I
should mention some other difficulties which we have felt.
seems to me, if the proposition was accepted that the Act itself should
enumerate the privileges of Parliament, we would have to follow three courses.
One is to adopt them in the Constitution, namely to set out in detail the
privileges and immunities of Parliament and its members. I have very carefully
gone over May's Parliamentary Practice which is the source book of knowledge
with regard to the immunities and privileges of Parliament. I have gone over
the index of May's Parliamentary Practice and I have noticed that practically 8
or 9 columns of the index are devoted to the privileges and immunities of
Parliament. So that if you were to enact a complete code of the privileges and
immunities of Parliament based upon what May has to say on this subject, I have
not the least doubt in my mind that we will have to add not less than twenty or
twenty-five pages relating to immunities and privileges of Parliament. I do not
know whether the Members of this House would like to have such a large
categorical statement of privileges and immunities of Parliament extending over
twenty or twenty-five pages. That I think is one reason why we did not adopt
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.
unfortunately for us, as honourable Members will know, the 1935 Act conferred
no privileges and no immunities on Parliament and its members. All that it
provided for was a single provision that there shall be freedom of speech and
no member shall be prosecuted for anything said in the debate inside
that course was not open, because the existing Parliament or Legislative
Assembly possess no privilege and no immunity. Therefore we could not resort to
third course open to us was the one which we have followed, namely, that the
privileges of Parliament shall be the privileges of the House of Commons. It
seems to me that except of the sentimental objection to the reference to the
House of Commons I cannot see that there is any substance in the argument that
has been advanced against the course adopted by the Drafting Committee. I
therefore suggest that the article has adopted the only possible way of doing
it and there is no other alternative way open to us. That being so, I suggest
that this article be adopted in the way in which we have drafted it.
the House decided to approve the provision relating to powers, privileges and
immunities of State Legislatures.
aforesaid discussion clearly and unequivocally indicates that the Members of
the Constitution wanted Parliament (and State Legislatures) to retain power and
privileges to take appropriate action against any individual member for
'anything that has been done by him' which may bring Parliament or Legislative
Assembly into 'disgrace'. In my opinion, therefore, it cannot be said that the
Founding Fathers of the Constitution were not aware or never intended to deal
with individual misdeeds of members and no action can be taken by the
Legislature under Article 105 or 194 of the Constitution.
authority on the 'Constitutional Law of India', (H.M. Seervai) pithily puts
this principle in one sentence;
is clear, therefore, that the privileges of the British House of Commons were
not conferred on the Indian Legislatures in a fit of absent mindedness". (emphasis
supplied) (Constitutional Law of India; Third Edn.; Vol. II;
20-36) ORDER OF EXPULSION AND JUDICIAL REVIEW The history of relationship
between Parliament and Courts at Westminister is also marked with conflict and
May rightly comments; "After some three and a half centuries, the boundary
between the competence of the law courts and the jurisdiction of the either
House in matters of privilege is still not entirely determined".
to the learned author, the earliest conflicts between Parliament and the Courts
were about the relationship between the lex parliamenti and the common law of England. Both Houses argued that under the
former, they alone were the judges of the extent and application of their own
privileges, not examinable by any court or subject to any appeal. The courts,
on the other hand, professed judicial ignorance of the lex parliamenti.
some time, however, they recognized it, but as a part of the Law of England
and, therefore, wholly within the judicial notice.
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.
question was also considered by Anson ('The Law and Custom of the Constitution',
Fifth Edition; Vol. I;
190-99). The learned author considered the causes of conflict between Houses
and Courts. He noted that the House had asserted that 'it is the sole judge of
the extent of its privileges' and the Court had no jurisdiction in the matter.
Courts, on the other hand, took the stand that 'when privilege conflicts with
rights which they have it in charge of maintain, they will consider whether the
alleged privilege is authentic, and whether it governs the case before them'.
referring to three leading cases, (i) Ashby v.
(1704) 14 St Tr 695; (ii) Stockdale v. Hansard, (1839) 9 Ad & E 1 : 112 ER
1112; and (iii) Bradlaugh v.
(1884) 12 QBD 271 : 53 LJQB 200the author concluded;
whole, it seems now to be clearly settled that the Courts will not be deterred
from upholding private rights by the fact that questions of parliamentary
privilege are involved in their maintenance; and that, except as regards the
internal regulation of its proceedings by the House, Courts of Law will not
hesitate to inquire into alleged privilege, as they would into custom, and
determine its extent and application.
Laws of England, (4th Edition, Reissue, Vol. 34; pp. 553-54; paras 1004-05), it
has been stated;
The position of the courts of law. Each House of Parliament has traditionally
claimed to be the sole and exclusive judge of its own privilege and of the
extent of that privilege.
courts of law accept the existence of privileges essential to the discharge of
the functions of the two Houses. In 1939, all the privileges required for the
energetic discharge of the Commons' trust were conceded by the court without a
murmur or doubt; and over 150 years later, the Privy Council confirmed that the
courts will not allow any challenge to be made to what is said or done within
the walls of Parliament in performance of its legislative functions and
protection of its established privileges. On the other hand, the courts take
the view that it is for them to determine whether a parliamentary claim to
privilege in a particular case falls within that area where what is claimed is
necessary to the discharge of parliamentary functions or internal to one or
other of the Houses, in which case parliamentary jurisdiction is exclusive, or
whether it falls outside that area, especially if the rights of third parties
are involved, where the courts would expect to form their own judgments.
Limits of agreement regarding jurisdiction. In spite of the dualism of
jurisdiction between the Houses of Parliament and the courts of law, the
current measure of agreement on the respective spheres of the two Houses and
the courts has, since the mid- nineteenth century, prevented the direct
conflicts of earlier years.
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.
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.
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.
in 'A History of English Law' (Vol. I; pp.
are two maxims or principles which govern this subject. The first tells us that
"Privilege of Parliament is part of the law of the land;" the second
that "Each House is the judge of its own privileges." Now at first
sight it may seem that these maxims are contradictory. If privilege of Parliament
is part of the law of the land its meaning and extent must be interpreted by
the courts, just like any other part of the law; and therefore neither House
can add to its privileges by its own resolution, any more than it can add to
any other part of the law by such a resolution. On the other hand if it is true
that each House is the sole judge of its own privileges, it might seem that
each House was the sole judge as to whether or no it had got a privilege, and
so could add to its privileges by its own resolution. This apparent
contradiction is solved if the proper application of these two maxims is
attended to. The first maxim applies to cases like Ashby v. White; (1704) 14 St
Tr 695 and Stockdale v. Hansard; (1839) 9 Ad & E 1 : 112 ER 1112 in which
the question at issue was the existence of a privilege claimed by the House.
This is a matter of law which the courts must decide, without paying any
attention to a resolution of the House on the subject. The second maxim applies
to cases like that of the Sheriff of Middlesex;
11 Ad & E 273 : 113 ER 419 and Bradlaugh v. Gosset; (1884) 12 QBD 271 : 53
LJQB 200, in which an attempt was made to question, not the existence, but the
mode of user of an undoubted privilege. On this matter the courts will not
interfere because each House is the sole judge of the question whether, when,
or how it will use one of its undoubted privileges.
have a written Constitution which confers power of judicial review on this
Court and on all High Courts.
exercising power and discharging duty assigned by the Constitution, this Court
has to play the role of a 'sentinel on the qui vive' and it is the solemn duty
of this Court to protect the fundamental rights guaranteed by Part III of the
Constitution zealously and vigilantly.
be stated that initially it was contended by the respondents that this Court
has no power to consider a complaint against any action taken by Parliament and
no such complaint can ever be entertained by the Court.
Subramaniam, appearing for the Attorney General, however, at a later stage
conceded (and I may say, rightly) the jurisdiction of this Court to consider
such complaint, but submitted that the Court must always keep in mind the fact
that the power has been exercised by a co-ordinate organ of the State which has
the jurisdiction to regulate its own proceedings within the four walls of the
House. Unless, therefore, this Court is convinced that the action of the House
is unconstitutional or wholly unlawful, it may not exercise its extraordinary
jurisdiction by re-appreciating the evidence and material before Parliament and
substitute its own conclusions for the conclusions arrived at by the House.
opinion, the submission is well-founded.
Court cannot be oblivious or unmindful of the fact that the Legislature is one
of three organs of the State and is exercising powers under the same
Constitution under which this Court is exercising the power of judicial review.
It is, therefore, the duty of this Court to ensure that there is no abuse or
misuse of power by the Legislature without overlooking another equally
important consideration that the Court is not a superior organ or an appellate
forum over the other constitutional functionary. This Court, therefore, should
exercise its power of judicial review with utmost care, caution and
principle has been succinctly stated by Sir John Donaldson, M.R. in R. v. Her
Majesty's Treasury, ex parte Smedley, 1985 QB 657, 666 thus;
the courts to be ever sensitive to the paramount need to refrain from
trespassing on the province of Parliament or, so far as this can be avoided, even appearing to do so.
(emphasis supplied) INDIAN PARLIAMENT HAS NO DUAL CAPACITY It was also urged
that Indian Parliament is one of the three components of the State and it does
not have a 'dual capacity' like the British Parliament which is not only
'Parliament', i.e. legislative body, pure and simple, but also 'the High Court
of Parliament'. Since Indian Parliament is not a 'Court of Record', it has no
power, authority or jurisdiction to award or inflict punishment for Contempt of
Court nor it can be contended that such action is beyond judicial scrutiny.
this connection, I may only observe that in Searchlight as well as in Keshav Singh,
it has been observed that there is no doubt that Parliament/State Legislature
has power to punish for contempt, which has been reiterated in other cases
also, for instance, in State of Karnataka v. Union of India, (1977) 4 SCC 608,
and in P. V. Narasimha Rao v. State, (1998) 4 SCC 626. But what has been held
is that such decision of Parliament/State Legislature is not 'final and
conclusive'. This Court in all earlier cases held that in view of power of
judicial review under Articles 32 and 226 of the Constitution, the Supreme
Court and High Courts have jurisdiction to decide legality or otherwise of the
action taken by State- authorities and that power cannot be taken away from
judiciary. There lies the distinction between British Parliament and Indian Parliament.
Since British Parliament is also 'the High Court of Parliament', the action
taken or decision rendered by it is not open to challenge in any court of law.
This, in my opinion, is based on the doctrine that there cannot be two parallel
courts, i.e. Crown's Court and also a Court of Parliament ('the High Court of
Parliament') exercising judicial power in respect of one and the same
jurisdiction. India is a democratic and republican
State having a written Constitution which is supreme and no organ of the State
(Legislature, Executive or Judiciary) can claim sovereignty or supremacy over
the other. Under the said Constitution, power of judicial review has been
conferred on higher judiciary (Supreme Court and High Courts).
said power is held to be one of the 'basic features' of the Constitution and,
as such, it cannot be taken away by Parliament, even by an amendment in the
Constitution. [Vide Sambamurthy v. State of A.P.,
(1987) 1 SCC 362 : AIR 1987 SC 663; Kesavananda Bharti v.
of Kerala, (1973) 4 SCC 225 : AIR 1973 SC
Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 :
1975 SC 2299; Minerva Mills Ltd. V. Union
of India, (1980) 3 SCC 625 : AIR 1980 SC
1789; L. Chandra Kumar v. Union of India, (1987) 1 SCC 124 : (1987) 1 SCC
124 : (1987) 1 SCR 435, Kihoto Hollohon v.
1992 Supp (2) SCC 651 : AIR 1993 SC 412].
has, therefore, been held in several cases that an action of Parliament/State
Legislature cannot claim 'total immunity' from judicial review. In fact, this
argument had been put forward in Keshav Singh which was negatived by this
Court. It was opined that an aggrieved party may invoke the jurisdiction of the
High Court under Article 226 or of the Supreme Court under Article 32 of the
Constitution. That, however, does not mean that while exercising extraordinary
jurisdiction under the Constitution, the powers of the courts are absolute,
unlimited or unfettered. The Constitution which conferred power of judicial
review on the Supreme Court and High Courts, with the same pen and ink provided
that the validity of proceedings in Parliament cannot be called in question on
the ground of 'irregularity in procedure'. It is, therefore, the duty of this
Court to give effect to the said provision and keeping in view the limitation,
exercise the power of judicial review.
in the instant cases, the Court is called upon to answer a limited question
whether Parliament can expel a member. As I have already discussed in earlier
part of this judgment, even a Colonial Legislature having limited privileges
possesses the power to expel a member if his conduct is found to be not
befitting a member of Legislature. If it is so, in my opinion, it goes without
saying that Indian Parliament, which has undoubtedly much more powers than a Colonial
Legislature, can take such action and it cannot be successfully contended that
Parliament does not possess the power to expel a member. I am, therefore,
unable to uphold the argument of the petitioners.
AND EXPULSION The
petitioners also submitted that the law relating to disqualification and
vacation of seats has been laid down in Articles 101 to 104 (and 190-93) read
with Schedule X to the Constitution and of the Representation of the People
Act, 1951. Those provisions are 'full and complete'. In other words, they are
in the nature of 'complete Code' as to disqualification of membership and
vacation of seats covering the field in its entirety. No power of expulsion de
hors the above provisions exists or is available to any court or authority
including Parliament. The action of Parliament, hence, is without jurisdiction
and is liable to be set aside.
unable to uphold the contention. As already discussed earlier, every
legislative bodyColonial or Supremepossesses power to regulate its proceedings,
power of self-protection, self-preservation and maintenance of discipline. It
is totally different and distinct from the power to provide the constitution or
composition which undoubtedly not possessed by Indian Parliament. But every legislative
body has power to regulate its proceedings and observance of discipline by its
members. In exercise of that power, it can suspend a member as also expel him,
if the circumstances warrant or call for such action. It has nothing to do with
disqualification and/or vacation of seat. In fact, a question of expulsion
arises when a member is not disqualified, his seat has not become vacant and
but for such expulsion, he is entitled to act as a member of Parliament.
HAS NO CARTE BLANCHE POWER The counsel for the petitioners submitted that every power has its
limitations and power conferred on Parliament is not an exception to this rule.
It has, therefore, no absolute right to take any action or make any order it
likes. It was stated that this Court has accepted this principle in several
cases by observing that absolute power is possible 'only in the moon' [vide Ahmedabad
St. Xavier's College Society & Anr. V. State of Gujarat & Anr., [(1975) 1 SCR 173 :
(1974) 1 SCC 717 :
1974 SC 1389]. I admit my inability to express any opinion on the larger issue.
But I have no doubt and I hold that Parliaemnt, like the other organs of the
State, is subject to the provisions of the Constitution and is expected, nay,
bound to exercise its powers in consonance with the provisions of the
Constitution. But I am unable to hold that the power to expel a member is a
carte blanche in nature and Palriament has no authority to expel any member. In
my view, Parliament can take appropriate action against erring members by
imposing appropriate punishments or penalties and expulsion is one of them. I
may, however, hasten to add that under our Constitution, every action of every
authority is subject to law as nobody is above law. Parliament is not an
exception to this 'universal' rule. It is, therefore, open to an aggrieved
party to approach this Court raising grievance against the action of Parliament
and if the Court is satisfied within the limited parameters of judicial review
that the action is unwarranted, unlawful or unconstitutional, it can set aside
the action. But it is not because Parliament has no power to expel a member but
the action was not found to be in consonance with law.
EFFECT It was then contended that the impugned actions taken by Lok Sabha and Rajya
Sabha are illegal and unconstitutional. It was stated that the immunity granted
by clause (1) of Article 122 of the Constitution ('Courts not to inquire into
proceedings of Parliament') has been made expressly limited to 'irregularity of
procedure' and not to substantive illegality or unconstitutionality. If the
action taken or order passed is ex facie illegal, unlawful or unconstitutional,
Parliament cannot take shelter under Article 122 and prevent judicial scrutiny
thereof. Neither ad hoc Committees have been contemplated by the Constitution nor
such committees have power to inquire into conduct or misconduct of Members of
Parliament. All proceedings, therefore, have no legal foundation. They were
without jurisdiction or lawful basis and are liable to be ignored altogether.
this connection, the attention of the Court was invited to Constituent Assembly
Debates when draft Article 101 (present Article 122) was discussed. Mr.
suggested an amendment in clause (1) of Article 101 by inserting the words
"in any court" after the words "called in question".
with the amendment and jurisdiction of Courts, Dr. B.R. Ambedkar stated (CAD : Vol.VIII;
regard to the amendment of Mr.
I do not think it necessary, because where can the proceedings of Parliament be
questioned in a legal manner except in a Court? Therefore, the only place where
the proceedings of Parliament can be questioned in a legal manner and legal
sanction obtained is the Court. (emphasis supplied) Reference was also made to Pandit
M.S.M. Sharma v.
Krishna Sinha & Ors. (Pandit Sharma II); (1961) 1 SCR 96 : AIR 1960 SC
1186, wherein a Bench of eight Hon'ble Judges of this Court held that "the
validity of the proceedings inside the Legislature of a State cannot be called
in question on the allegation that the procedure laid down by the law had not
been strictly followed".
Singh also, this Court reiterated the above proposition of law and stated;
212(1) makes a provision which is relevant. It lays down that the validity of
any proceedings in the Legislature of a State shall not be called in question
on the ground of any alleged irregularity of procedure. Art.
confers immunity on the officers and members of the Legislature in whom powers
are vested by or under the Constitution for regulating procedure or the conduct
of business, or for maintaining order, in the Legislature from being subject to
the jurisdiction of any court in respect of the exercise by him of those powers.
Art. 212(1) seems to make it possible for a citizen to call in question in the
appropriate court of law the validity of any proceedings inside the legislative
chamber if his case is that the said proceedings suffer not from mere
irregularity of procedure, but from an illegality. If the impugned procedure is
illegal and unconstitutional, it would be open to be scrutinised in a court of
law, though such scrutiny is prohibited if the complaint against the procedure
is no more than this that the procedure was irregular. (emphasis supplied) [See
also Kihoto Hollohan v. Zachillhu & Ors., 1992 Supp (2) SCC 651, 711].
learned counsel for the respondents have, in my opinion, rightly not disputed
the above statement of law made in the larger Bench decisions of this Court.
They, however, stated that a Committee was appointed by Parliament, which went
into the allegations against the petitioners. Adequate opportunity had been
afforded to the members and after considering the relevant material placed
before it, a decision was taken holding them guilty. The said action was
approved by the House and as such, the law laid down in the above decisions has
no application to the fact-situation and no grievance can be made against it.
view, the submission of the respondents deserves acceptance. Taking into
account serious allegations against some of the members of the House,
Parliament decided to inquire into correctness or otherwise of the charges by
constituting an 'Inquiry Committee'. The members were asked to offer their
explanation and considering the evidence and material on record, the Committee
appointed by Parliament decided the matter. It, therefore, cannot be said that
the case is covered by exceptional part of clause (1) of Article 122. It cannot
be overlooked that this Court is exercising power of 'judicial review', which
by its nature limited to serious infirmities of law or patent illegalities. It
cannot, therefore, enter into sufficiency of material before the authority nor
can substitute its own opinion/finding/ decision for the
opinion/finding/decision arrived at by such authority. Hence, even if there is
any irregularity in adopting the procedure or in appreciating evidence by the
Committee or in approving the decision by Parliament, it squarely falls under
the 'protective umbrella' of Article 122(1) of the Constitution and this Court
cannot interfere with the decision in view of the constitutional protection
granted by the said provision.
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.
this connection, it is profitable to refer to Mudgal.
that case also, a Committee was appointed to inquire into charges leveled
against a member of Parliament.
directives were issued to the Committee.
No.2 issued by the Speaker was relevant and read thus;
Committee on the Conduct of a Member that has been constituted is a Court of Honour
and not a Court of Law in the strict sense of the term. It is therefore not
bound by technical rules. It has to mould its procedure so as to satisfy the
ends of justice and ascertain the true facts of the case. In Courts of Law,
excessive cross-examination eventually turns into a battle of wits and that
should not be the atmosphere of a Court of Honour. Here the effort should be to
simplify the procedure and to lay down clear rules which ensure ascertainment
of Truth, fairplay and justice to all concerned. I am, therefore, of opinion
that normally the questions should be put by the Chairman and the Members but
that does not mean that the counsel appearing in the case is debarred from
putting any questions whatsoever. It is open to the Committee in the light of
particular circumstances, of which they alone are the best judges, to permit
the counsel to put questions to a witness with the permission of the Chairman.
I feel that this should meet the requirements of the present case." (emphasis
supplied) OBSERVANCE OF NATURAL JUSTICE It was also urged that the Committee
had not given sufficient opportunity to the petitioners to defend them and had
not complied with the principles of natural justice and fair play. It was
submitted that the doctrine of natural justice is not merely a matter of
procedure but of substance and any action taken in contravention of natural
justice is violative of fundamental rights guaranteed by Articles 14, 19 and 21
of the Constitution.
in this connection was made to Maneka Gandhi v. Union of India, (1978) 1 SCC 248
: AIR 1978 SC 597; Kihoto Holohan and other decisions.
as principle of law is concerned, it is well- settled and cannot be disputed
and is not challenged. In my opinion, however, in the facts of the case, it
cannot successfully be contended that there is breach or non- observance of
natural justice by the Committee. Reading of the Reports makes it clear that adequate opportunity had been
afforded to the petitioners and thereafter the action was taken. Notices were
issued to the members, CDs were supplied to them, evidence of witnesses was
recorded, defence version was considered and 'findings and conclusions' were
as the Committee constituted by the Lok Sabha is concerned, it stated;
The Committee viewed the VCDs
comprising the relevant video footage aired on the 'Aaj Tak' TV Channel on 12
December, 2005, perused the transcripts thereof, considered the written
statements submitted by each of the said ten members and their oral evidence
and also the oral evidence of Shri Aniruddha Bahal, Kumar Badal and Ms.
Raj of Cobrapost.Com who conducted the 'Operation Duryodhan'.
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.
was accepted by the members directly and also through their Private
deposed on oath that in the money sequences shown on TV Channel Aaj Tak there
was no misrepresentation. They have also given to the Committee the raw footage
covering the situation before and after the scene in question. While the Aaj Tak
clippings have gone through video cleaning and sound enhancement, corresponding
thereto are extended versions of unedited raw footage of the tapes to make it
apparent that nothing had been misrepresented. Besides this Shri Aniruddha Bahal
also submitted the "Original tapes of money acceptance of whatever length
the incident it may be". There are 20-25 tapes and the total footage
pertains to money acceptance. Each tape is a complete tape showing the whole
incident. In the course of her evidence Ms. Suhasini Raj has given the details
of the money given to the MPs directly as also through the middlemen.
As against this evidence are the
statements of all the said ten members. The Committee note that all the members
have denied the allegations leveled against them.
common strain in their testimony is that the clippings are morphed, out of
context and a result of 'cut and paste'. The clippings of a few minutes, they
averred, do not present full picture and they needed full tapes including the
preceding and succeeding scenes to prove what they termed as the falsehood
claimed that the entire exercise was aimed to trap them and lower the prestige
of the Parliament.
The Committee have given serious
consideration to the requests made by the said members for being provided the
full footage of video recordings, all the audio tapes and their request for
extension of time and being allowed to be represented through their counsels.
this context the Committee would like to bring it on record that all the ten
members while deposing before the Committee were asked whether they would like
to view the relevant video footage so that they could point out the
discrepancies therein if any. All the members, refused to view the relevant
video footage. The Committee, therefore, feel that the requests by the members
for unedited and entire video footage would only lead to delaying the
consideration of the matter and serve no useful purpose.
The Committee having given in-depth
consideration to the evidence and statements of the representatives of
Cobrapost.com and the members, are of the view that the evidence against the
members is incriminating. The Committee note that the Cobrapost.com
representatives gave their statement on oath and would be aware of the
consequences of making any false or incorrect statement. They have also
supplied the unedited copies of original video situations where money changed
hands. Transcripts of the said videos have also been supplied. Had the
Cobrapost.com been reluctant in supplying the original unedited video tapes
there could have been scope for some adverse inference about the authenticity
of the "money sequences" as telecast by Aaj Tak. But that is not so.
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.
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.
The Committee feel that such conduct
of the said members was unbecoming of members of Parliament and also unethical.
Committee are, therefore, of the view that their conduct calls for strict
The Committee feel that stern action
also needs to be taken against the middlemen, touts and persons masquerading as
Private Secretaries of members since they are primarily responsible for
inducing members to indulge in such activities.
he Committee note that in the case
of misconduct or contempts committed by its members, the House can impose these
punishments: admonition, reprimand, withdrawal from the House, suspension from
the service of the House, imprisonment, and expulsion from the House.
Committee, according to me, rightly made the following observations;
The Committee feel that credibility
of a democratic institution like Parliament and impeccable integrity of its
members are imperative for the success of any democracy.
order to maintain the highest traditions in parliamentary life, members of
Parliament are expected to observe a certain standard of conduct, both inside
the House as well as outside it. It is well recognised that conduct of members
should not be contrary to the Rules or derogatory to the dignity of the House
or in any way inconsistent with the standards which Parliament is entitled to
expect of its members.
The Committee wish to emphasise that
ensuring probity and standards in public life is sine qua non for carrying
credibility with the public apart from its own intrinsic importance. The waning
confidence of the people in their elected representatives can be restored
through prompt action alone.
fight against corruption is necessary for preserving the dignity of the
country. The beginning has to be made with holders of high public offices as
the system is, and ought to be, based on morality. When the Committee say so,
they are also aware of and wish to put on record that a large number of leaders
spend their life time in self-less service to the public.
The Committee find it pertinent to
note the following observations made by the Committee of Privileges of Eleventh
Lok Sabha in their Report on 'Ethics, Standards in Public Life, Privileges,
Facilities to members and related matters':
the constituents' concerns on the floor of the House is the primary
parliamentary duty of an elected representative. Any attempt to influence
members by improper means in their parliamentary conduct is a breach of
privilege. Thus, offering to a member a bribe or payment to influence him in his
conduct as a member, or any fee or reward in connection with the promotion of
or opposition to, any Bill, resolution, matter or things submitted or intended
to be submitted to the House or any Committee thereof, should be treated as a
breach of Code of Conduct. Further, any offer of money, whether for payment to
an association to which a member belongs or to a charity, conditional on the
member taking up a case or bringing it to a successful conclusion, is
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
privilege implications apart, the Committee is constrained to observe that such
attempts and acts are basically unethical in nature."
The Committee are, therefore, deeply
distressed over acceptance of money by members for raising parliamentary
questions in the House, because it is by such actions that the credibility of
Parliament as an institution and a pillar of our democracy is eroded.
supplied) The Committee accordingly recommended (by majority of 4 : 1)
expulsion of all the ten members from the membership of Lok Sabha.
recommendation was accepted by the House and consequential notification was
issued on December 23,
2005 expelling all the
members from Lok Sabha with effect from afternoon of December 23, 2005.
as Rajya Sabha is concerned, the Committee on Ethics recorded a similar finding
and observed that it was convinced that the member had accepted money for
tabling questions in Rajya Sabha and the pleas raised by him in defence were
Committee rightly stated;
functioning is the very basis of our democratic structure upon which the whole
constitutional system rests.
therefore, that brings the institution of parliament into disrepute is
extremely unfortunate because it erodes public confidence in the credibility of
the institution and thereby weaken the grand edifice of our democratic polity.
Committee then observed;
Committee has applied its mind to the whole unfortunate incident, gave full
opportunity to the Member concerned to make submissions in his defence and has
also closely examined witnesses from Cobrapost.Com and Aaj Tak. The Committee
has also viewed the video tapes and heard the audio transcripts more than once.
After taking all factors into consideration, the overwhelming and clinching
evidence that the member has, in fact, contravened para 5 of the code of
conduct for members of the Rajya Sabha and having considered the whole matter
in depth, the committee, with great sadness, has come to the conclusion that
the member has acted in a manner which has seriously impaired the dignity of
the house and brought the whole institution of parliamentary democracy into
disrepute. The Committee therefore recommend that Dr. Chhattrapal Singh Lodha
be expelled from the membership of the House as his conduct is derogatory to
the dignity of the House and inconsistent with the code of conduct which has
been adopted by the House.
Committee thus recommended expulsion of Dr.
One member of the Committee suggested (clarifying that it was not a 'dissent
note'), to seek opinion of this Court under Article 143(1) of the Constitution.
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.
: WHETHER PRE-JUDGED One of the grievances of the petitioners is that the issue
had already been pre-judged even before a Committee was appointed by
Parliament. In support of the said complaint, the counsel drew the attention of
the Court to a statement by the Hon'ble Speaker of Lok Sabha on December 12, 2005;
body would be spared".
attempt was made that the Hon'ble Speaker, even before the constitution of
Committee had proclaimed that the petitioners would not be spared.
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.
opinion, the contention has no force. The petitioners are not fair to the Hon'ble
Speaker. They have taken out one sentence from the speech of Hon'ble Speaker of
Lok Sabha and sought to create an impression as if the matter had already been
decided on the day one.
not so. The entire speech wherein the above sentence appears is part of the
Report of the Committee and is on record. It reads thus;
Members, certain very serious events have come to my notice as also of many
other hon. Members. It will be looked into with all importance it deserves. I
have already spoken to and discussed with all Hon. Leaders of different
Parties, including the Hon. Leader of the Opposition and all have agreed that
the matter is extremely serious if proved to be correct. I shall certainly ask
the hon. Members to explain what has happened. In the meantime, I am making a
personal request to all of them 'please do not attend the Session of the House
until the matter is looked into and a decision is taken' I have no manner of
doubt that all sections of the House feel deeply concerned about it. I know
that we should rise to the occasion and we should see that such an event does
not occur ever in future and if anybody is guilty, he should be punished.
would be spared. We shall certainly respnd to it in a manner which behoves as.
you very much." (emphasis supplied) It is thus clear that what was stated
by the Hon'ble Speaker was that "if anybody is guilty, he would be
punished. Nobody would be spared". In other words, an assurance was given
by the Hon'ble Speaker to the members of august body that an appropriate action
will be taken without considering the position or status of an individual
member and if he is found guilty, he will not be spared. The statement, in my
judgment, is a responsible one, expected of the Hon'ble Speaker of an august
body of the largest democracy. I, therefore, see nothing in the above statement
from which it can be concluded that the issue had already been decided even
before the Committee was constituted and principles of natural justice were
FOR QUERY : WHETHER
MERE MORAL WRONG It was also urged that taking on its face value, the
allegations against the petitioners were that they had accepted money for
tabling of questions in Parliament.
had been done within the four walls of the House. At the most, therefore, it
was a 'moral wrong' but cannot fall within the mischief of 'legal wrong' so as
to empower the House to take any action. According to the petitioners, 'moral
obligations' can neither be converted into 'constitutional obligations' nor non-observance
thereof would violate the scheme of the Constitution. No action, therefore, can
be taken even if it is held that the allegations were well-founded.
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.
with 'Corruption or impropriety', Sir Erskine May stated;
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
person who is found to have offered such a corrupt consideration is also in
contempt. A transaction of this character is both a gross affront to the
dignity of the House concerned and an attempt to pervert the parliamentary
process implicit in Members' free discharge of their duties to the House and
(in the case of the Commons) to the electorate".
Burnett, ('Constitutional and Administrative Law', Fourth Edn.; pp.571-72) also
refers to "Cash for questions", which started in 1993. It was alleged
that two members of Parliament, Tim Smith and Neil Hamilton received
payments/gifts in exchange for tabling parliamentary questions. Both of them
had ultimately resigned.
rapidly accelerating and intensifying atmosphere of suspected
corruption-sleaze-in public life caused the Prime Minister to appoint a
judicial inquiry into standards of conduct in public life.
author also observed; "The cash for questions affair also raises issues
concerning the press".
Committee went into the allegations against the officers of Parliament and
recommended punishment. It criticized the role of the Press as well, but no
action had been taken against the newspaper.
Commission and Nolan Committee also considered the problem of corruption and
bribery prevailing in the system and made certain suggestions and
recommendations including a recommendation to clarify the legal position as to
trial of such cases.
state that I am not expressing any opinion one way or the other on the criminal
trial of such acts as also the correctness or otherwise of the law laid down in
P.V. Narsimha Rao. To me, however, there is no doubt and it is well-settled
that in such cases, Parliament has power to take up the matter so far as
privileges are concerned and it can take an appropriate action in accordance
with law. If it feels that the case of 'Cash for query' was made out and it
adversely affected honesty, integrity and dignity of the House, it is open to
the House to attempt to ensure restoration of faith in one of the pillars of
in agreement what has been stated by Mc Lachlin, J. (as she then was) in Fred
Harvey, already referred to;
democracies are to survive, they must insist upon the integrity of those who
seek and hold public office. They cannot tolerate corrupt practices within the
legislature. Nor can they tolerate electoral fraud. If they do, two
consequences are apt to result. First, the functioning of the legislature may
public confidence in the legislature and the government may be undermined. No
democracy can afford either".
supplied) DOCTRINE OF PROPORTIONALITY It was contended that expulsion of a
member of Parliament is a drastic step and even if the House possesses such
power, it cannot be lightly restored to. It is against the well established
principle of proportionality. According to the petitioners, such a step would
do more harm to the constituency than to the member in his personal capacity.
It was, therefore, submitted that proper exercise of power for misbehaviour of
a member is to suspend him for the rest of the day, or at the most, for the
remaining period of the session. If a folly has been committed by some members,
the punishment may be awarded to them but it must be commensurate with such act
which should not be severe, too harsh or unreasonably excessive, depriving the
constituency having its representation in the House.
it cannot be gainsaid that expulsion of a member is a grave measure and
normally, it should not be taken. I also concede that Palriament could have
taken a lenient view as suggested by the learned counsel for the petitioners.
But it cannot be accepted as a proposition of law that since such action results
in deprivation of constituency having its representation in the House, a member
can never be expelled. If representation of the constituency is taken to be the
sole consideration, no action can be taken which would result in absence of
representation of such constituency in the House. Such interpretation would
make statutory provisions (the Representation of the People Act, 1951) as also
constitutional scheme (Articles 84, 102, 190, 191, 192, Tenth Schedule, etc.)
non-workable, nugatory and otiose. If a member is disqualified or has been
convicted by a competent court, he has to go and at least for the time being,
till new member is elected, there is no representation of the constituency in
the House but it is inevitable and cannot be helped.
is one more aspect also. Once it is conceded that an action of suspension of a
member can be taken (and it was expressly conceded), I fail to understand why
in principle, an action of expulsion is impossible or illegal. In a given case,
such action may or may not be lawful or called for, but in theory, it is not
possible to hold that while the former is permissible, the latter is not. If it
is made referable to representation of the constituency, then as observed in Raj
Narain, withdrawal of a member from the House even for a brief period is a
serious matter both for the member and his constituency. Important debates and
votes may take place during his absence even if the period be brief and he may
not be able to present his view-point or that of the group or that of the
constituency he represented. It is, however, in the nature of disciplinary or
punitive action for a specific parliamentary offence, namely, disorderly behaviour.
Moreover, if the House has a right to expel a member, non-representation of the
constituency is merely a consequence, nothing more. "If the constituency
goes unrepresented in the Assembly as a result of the act of an elected member
inconsistent with the dignity and derogatory of the conduct expected of an
elected member, then it is the voters who alone will have to take the blame for
electing a member who indulges in conduct which is unbecoming of an elected
OF MISUSE OF POWER BY PARLIAMENT Finally, it was strenuously urged that
Parliament/ State Legislature should not be conceded such a drastic power to
expel a member from the House. As Maintland has stated, it is open to
Parliament to expel a member on the ground of 'ugly face'. Even in such case,
no Court of Law can grant relief to him. Considering ground-realities and
falling standards in public life, such an absolute power will more be abused
than exercised properly.
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.
it is well-established principle of law that the mere possibility or likelihood
of abuse of power does not make the provision ultra vires or bad in law. There
is distinction between existence (or availability) of power and exercise
thereof. Legality or otherwise of the power must be decided by considering the
nature of power, the extent thereof, the body or authority on whom it has been
conferred, the circumstances under which it can be exercised and all other
considerations which are relevant and germane to the exercise of such power. A
provision of law cannot be objected only on the ground that it is likely to be misused.
State of Rajasthan v. Union of India, (1977) 3 SCC
592, 658 : AIR 1977 SC 1361 dealing with an identical contention, Bhagwati, J.
(as His Lordship then was) stated;
must be remembered that merely because power may some time be abused, is no
ground for denying the existence of power. The wisdom of man has not yet been
able to conceive of a Government with power sufficient to answer all its
legitimate needs and at the same time incapable of mischief". (emphasis
supplied) [see also Ajit Kumar Nag v. Indian Oil Corporation, (2005) 7 SCC
reminded what Chief Justice Marshall stated before about two centuries in
Providence Bank v. Alphens Billings, 29 US 504 (1830) : 7 Law Ed 939;
vital power may be abused; but the Constitution of the United States was not intended to furnish the
corrective for every abuse of power which may be committed by the State
Governments. The interest, wisdom, and justice of the representative body, and
its relations with its constituents furnish the only security where there is no
express contract against unjust and excessive taxation, as well as against
unwise legislation generally." (emphasis supplied) CONCLUDING REMARKS I
have already held that the decisions taken, orders made, findings recorded or
conclusions arrived at by Parliament/State Legislature are subject to judicial
review, albeit on limited grounds and parameters. If, therefore, there is gross
abuse of power by Parliament/ State Legislature, this Court will not hesitate
in discharging its duty by quashing the order or setting aside unreasonable
reminded what Justice Sarkar stated in Keshav Singh;
wish to add that I am not one of those who feel that a Legislative Assembly
cannot be trusted with an absolute power of committing for contempt. The
Legislatures have by the Constitution been expressly entrusted with much more
important things. During the fourteen years that the Constitution has been in
operation, the Legislatures have not done anything to justify the view that
they do not deserve to be trusted with power. I would point out that though
Art. 211 is not enforceable, the Legislatures have shown an admirable spirit of
restraint and have not even once in all these years discussed the conduct of
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.
correct may produce friction and cause more harm than good. In a modern State
it is often necessary for the good of the country that parallel powers should
exist in different authorities. It is not inevitable that such powers will
clash. It would be defeatism to take the view that in our country men would not
be available to work these powers smoothly and in the best interests of the
people and without producing friction. I sincerely hope that what has happened
will never happen again and our Constitution will be worked by the different
organs of the State amicably, wisely, courageously and in the spirit in which
the makers of the Constitution expected them to act".
in whole-hearted agreement with the above observations. On my part, I may state
that I am an optimist who has trust and faith in both these august units,
namely, Legislature and Judiciary. By and large, constitutional functionaries
in this country have admirably performed their functions, exercised their
powers and discharged their duties effectively, efficiently and sincerely and
there is no reason to doubt that in coming years also they would continue to
act in a responsible manner expected of them. I am equally confident that not
only all the constituents of the State will keep themselves within the domain
of their authority and will not encroach, trespass or overstep the province of
other organs but will also act in preserving, protecting and upholding the
faith, confidence and trust reposed in them by the Founding Fathers of the
Constitution and by the people of this great country by mutual regard, respect
and dignity for each other. On the whole, the situation is satisfactory and I
see no reason to be disappointed for future.
the above observations and pious hope, I dismiss the Writ Petition as also all
transferred cases, however, without any order as to costs.