Amrinder
Singh Vs. Spl. Committee, Punjab Vidhan Sabha & Ors. [2010] INSC 533 (26
April 2010)
Judgment
CIVIL
APPELLATE JURISDICTION CIVIL APPEAL NO. 6053 OF 2008 Amarinder Singh ...
Appellant (s) Versus Special Committee, Punjab Vidhan Sabha & Others ...
Respondent (s) WITH
T.C. (C) NO.1 of 2009 W.P. (C) NO. 442 of 2008 W.P. (C) NO. 443 of 2008
K. G.
BALAKRISHNAN, CJI
1. The
appellant was the Chief Minister of the State of Punjab during the 12th term of
the Punjab Vidhan Sabha. The appellant was duly elected as a member of the
Punjab Vidhan Sabha for its 13th term.
2. The
Punjab Vidhan Sabha on 10-9-2008 passed a resolution which directed the
expulsion of the appellant for the remainder of the 13th term of the same
Vidhan Sabha.
This
resolution was passed after considering a report 1 submitted by a Special
Committee of the Vidhan Sabha (Respondent No. 1) on 3-9-2008 which recorded
findings that the appellant along with some other persons (petitioners in the
connected matters) had engaged in criminal misconduct.
The
Special Committee had itself been constituted on 18-12- 2007 in pursuance of a
resolution passed by the Vidhan Sabha. It had been given the task of inquiring
into allegations of misconduct that related back to the appellant's tenure as
the Chief Minister of the State of Punjab during the 12th term of the Punjab
Vidhan Sabha. More specifically, it was alleged that the appellant was
responsible for the improper exemption of a vacant plot of land which was
licensed to a particular private party (measuring 32.10 acres) from a pool of
187 acres of land that had been notified for acquisition by the Amritsar Land
Improvement Trust on 5-12-2003. The Amritsar Land Improvement Trust is a
statutory body which had notified the plan for acquisition in pursuance of a
developmental scheme, as contemplated under Section 36 of the Punjab Land
Improvement Act, 1922. Earlier, on 23-6-2003, a private party (M/s. Veer
Colonizers) had applied for a licence under Section 5 of the Punjab Apartment
and Property Regulation Act, 1995 to develop the above-mentioned plot of 32.10
acres which was situated in the proximity of the 2 Amritsar-Jalandhar road. At
the time of the colonizer's application for a development licence, the said
plot was not covered by any acquisition scheme, though it had been covered by
two schemes in the past which had lapsed by then. After the notification of the
scheme, the colonizer approached the concerned authorities, seeking an
exemption from the proposed acquisition of land. Subsequently on 7-10-2005, the
Amritsar Land Improvement Trust granted a No-objection certificate, thereby
permitting the exemption of the said plot of 32.10 acres from the scheme for
acquisition. This decision to exempt the said plot of 32.10 acres was notified
by the State Government on 13-01-2006 under Section 56 of the Punjab Town
Improvement Act. Since the appellant was serving as the Chief Minister of the
State at the time, it was alleged that the decision to exempt the plot was an
executive act that could be attributed to him.
3.
However, some other private parties who owned plots in the pool of land that
had been notified for acquisition by the Amritsar Land Improvement Trust on
5-12-2003, raised objections against the exemption referred to above. The gist
of their objections is that the State Government had unduly favoured one
private party by exempting the said 3 plot of 32.10 acres from the scheme for
acquisition. In fact the validity of the exemption was questioned in several
cases instituted before the High Court of Punjab and Haryana, namely those of
Major General Sukhdip Randhawa of Punjab (CWP No. 7838 of 2008). All of these
cases were pending before the High Court at the time of the hearings in the
present case.
4.
Following the elections held to re-constitute the Punjab Vidhan Sabha in
February 2007, there was a transition in power in the State. The 13th Vidhan
Sabha was constituted on 1-3-2007. The appellant who had served as the Chief
Minister of the State during the 12th term of the Vidhan Sabha, became the
leader of the opposition in the 13th term.
In
pursuance of a news report dated 22.3.2007, some members of the Legislative
Assembly moved a privilege motion in respect of allegations of tampering in the
proceedings of the 12th Vidhan Sabha (dated 1-3-2006). These allegations were
in regard to a starred question relating to the grant of exemption of 32.10
acres of land. On 5-4-2007 the notice 4 of motion was referred to the
Privileges Committee of the House by the Speaker. Thereafter, questions were
raised on the floor of the house which cast aspersions on the appellant's past
conduct. On 18-12-2007, the report of the Privileges Committee was tabled
before the House. The incumbent Chief Minister brought a motion which
specifically questioned the appellant's role in the exemption of the 32.10 acre
plot from the acquisition scheme notified by the Amritsar Improvement Trust.
Following
this motion, the Speaker of the House approved the constitution of a Special
Committee to inquire into the alleged misconduct. The terms of reference for
the Special Committee required it to examine as to what were the reasons for
exempting the said plot measuring 32.10 acres of land. As part of this inquiry,
the Special Committee had to examine whether any rule/norms had been violated
on account of this exemption and whether it had caused monetary losses to the
State exchequer. The stated objective was to identify those responsible for
such losses.
5. The
Special Committee submitted its report on 3-9-2008 which was presented to the
House on 5-9-2008. The report included findings that Captain Amarinder Singh
(former 5 Chief Minister, appellant in Civil Appeal No. 6053 of 2008),
Choudhary Jagjit Singh [former Local Bodies Minister, petitioner in Writ
Petition (Civ.) No. 443 of 2008], Late Sh. Raghunath Sahai Puri [former Housing
Minister, since deceased] and Sh. Jugal Kishore Sharma [former Chairman of
Amritsar Land Improvement Trust, petitioner in Writ Petition (Civ.) No. 442 of
2008) had been involved in `corruption, conspiracy to cause wrongful loss and
abuse of public office' in relation to the exemption of land from the
above-mentioned acquisition scheme. It must be noted that out of the four
individuals named in the report, only Captain Amarinder Singh was elected as a member
of the 13th Punjab Vidhan Sabha. After considering these findings, the Punjab
Vidhan Sabha passed the impugned resolution on 10-9-2008 which is extracted
below:
"After
accepting the report submitted by the Special Committee appointed by this
House, this august House recommends the following action:
*** ***
*** (i) Captain Amarinder Singh is expelled for the remaining term of the 13th
Punjab Vidhan Sabha. The Secretary of the Vidhan Sabha is instructed to
approach the Election Commission of India to have his seat declared as vacant.
(ii) The
recommendations of the Privilege Committee have been tabled in the House on
18.12.2007 and they be forwarded to Chief Secretary, Punjab Government with the
undermentioned instructions:- 6 Because this House does not possess any
facility to investigate and find out where the accused have stashed away the
ill gotten wealth or how it has been distributed, it is essential to have
custodial interrogation. Director Vigilance Department, Punjab which deals with
corruption cases and is an arm of the Punjab Government be instructed to file a
FIR keeping in mind the various instructions of the CrPC.
The
vigilance department is to investigate and submit its report to the Speaker of
this House within two months from today."
6. In
pursuance of the said resolution, the secretariat of the Punjab Vidhan Sabha
issued a notification on 10-9-2008 which declared that Captain Amarinder Singh
had been expelled from the membership of the 13th Vidhan Sabha for the
remaining term of the State Legislature, (that is 3.5 years). It was also
declared that his assembly constituency seat (76-Patiala Town) was rendered
vacant, thereby setting aside his election to the same. Aggrieved by the
findings of the report submitted by the Special Committee on 3-9-2008, the
appellant moved the High Court of Punjab and Haryana (C.W.P. 11548 of 2008).
Following the impugned resolution on 10-9-2008, the said petition was withdrawn
and C.W.P. 16216 of 2008 was instituted before the High Court to challenge the Special
Committee's report as well as the impugned resolution dated 10.9.2008. On
15-9-2008, a division bench of the High Court issued an order directing that
the case be heard on merits on 1-12-2008. The High 7 Court did not grant a stay
on the operation of the impugned resolution, but granted protection to Captain
Amarinder Singh from custodial interrogation and directed further listing on
1-12-2008. Dissatisfied with the High Court's order, the appellant approached
this court by way of a petition seeking special leave to appeal. The appellant
contended that the High Court ought to have stayed the report dated 3.9.2008
and the Resolution and Notification dated 10.9.2008. He apprehended that a
fresh election would be conducted in the intervening period, thereby
compromising his rights.
7. A
division bench of this court directed notice on 26-9- 2008 and referred the
case for hearing by a three judge bench. On 3-10-2008, a three judge bench
(B.N. Agarwal, G.S. Singhvi and Aftab Alam, JJ.] granted leave in the special
leave petition (C.A. No. 6053/2008). It allowed Transfer Petition (C) No.
1087/2008 for transfer of CWP No.
16216/2008
from the Punjab and Haryana High Court (the transferred case is T.C. (C) No. 1
of 2009,) and directed the same to be heard with the Civil Appeal along with
W.P. (C) No. 442/2008 and W.P. (C) No. 443/ 2008. The three judge bench did not
grant a stay on the operation of the impugned resolution which had directed the
8 expulsion of the appellant from the Vidhan Sabha. However, relief was granted
to the extent that even though the appellant could not participate in the
legislative proceedings, his seat would not fall vacant until the adjudication
of this case. A stay was also granted in respect of the Vidhan Sabha's specific
directions to the Punjab Vigilance Department, but it was clarified that the
appellant and the petitioners could be investigated in accordance with law.
Subsequently, the three judge bench found that the subject matter touched on
substantial questions of law requiring the interpretation of Article 194(3) of
the Constitution, thereby deeming it fit to refer these matters to a
constitution bench by way of an order dated 11-2-2009.
OVERVIEW
OF CONTENTIONS
8. The
counsel appearing for the appellant and the petitioners have prayed that the
impugned resolution as well as the report submitted by the Special Committee be
invalidated in their entirety. Accordingly, the appellant has sought
restoration of his membership for the remainder 9 of the 13th term of the
Punjab Vidhan Sabha. The main thrust of the appellant's contentions is that the
acts of constituting the Special Committee on 18-12-2007, the submission of its
report on 3-9-2008 and the impugned resolution passed by the Assembly on
10-9-2008 cannot be defended as a proper exercise of legislative privileges
under Article 194 of the Constitution. It was urged that the allegations of
misconduct on part of the appellant and the petitioners were relatable to their
executive actions which in no way disrupted or affected the legislative
functions of the Punjab Vidhan Sabha. It was reasoned that legislative
privileges are exercised to safeguard the integrity of legislative proceedings
and the alleged misconduct did not threaten the same in any manner. Another
contention was whether it was proper for the 13th Vidhan Sabha to exercise its
privileges to inquire into acts that had occurred during the 12th term of the
Vidhan Sabha. It was also pointed out that the alleged misconduct on the part
of the appellant and the petitioners had already been questioned before the
High Court of Punjab Haryana by private parties whose lands had not been
exempted from the Amritsar Improvement Scheme. Thus, it was argued that it was
improper for the legislature to act in respect of subject-matter which was
pending adjudication, thereby 10 violating the norm of not interfering in sub
judice matters. It was further argued that even though legislative privileges
are exercised to ensure the dignity and discipline of the House, the same
cannot encroach into the judicial domain by recording a finding of guilt and
recommending punitive action in respect of the alleged misconduct. To support
this objection, it was urged that the appellant and the petitioners had not
been given a fair opportunity to contest or meet the allegations against them
and hence the proceedings of the Special Committee were violative of the
principles of natural justice.
9. The
respondents' case is that the Punjab Vidhan Sabha had legitimately exercised
its privileges to recommend punitive action in the present case, since the
alleged misconduct on part of the appellant and the petitioners had brought
disrepute to the House as a whole. It was reasoned that even though the power
of expulsion for such misconduct has not been enumerated in Articles 190 and
191 of the Constitution [which prescribe the grounds for disqualification of
MLAs] the legislature had a broad power to take punitive action for the breach
of its privileges which includes the power to punish for its own contempt. It was
submitted that the appellant and the petitioners had 11 committed a breach of
privilege as well as contempt of the house since they had previously suppressed
efforts of the legislature to inquire into the alleged misconduct in relation
to the Amritsar Improvement Scheme. Since legislative privileges have not been
codified and are shaped by precedents, the counsel for the respondents have
cited some English precedents in support of their contention that privileges
can be exercised to punish mala fide acts which do not directly obstruct the
proceedings of the House, but impede its dignity nevertheless.
10. In
the course of the hearing on merits before this constitution bench, Shri K.
Parasaran and Shri U.U. Lalit, Sr. Advs. appeared on behalf of the appellant.
Thereafter, Shri Ashok Desai, Sr. Adv. appeared for the respondent whose
submissions were supplemented by Shri Ravi Shankar Prasad, Sr. Adv., while Shri
Gopal Subramanium, (Additional Solicitor General, now Solicitor General)
represented the views of the Union government.
11. In
light of the facts of this case and the contentions outlined above, the
following questions arise for consideration:
12 I.
Whether the alleged misconduct on part of the appellant and the petitioners
warranted the exercise of legislative privileges under Article 194(3) of the
Constitution? II. Whether it was proper for the Punjab Vidhan Sabha to take up,
as a matter of breach of privilege, an incident that occurred during its
previous term? III. Whether the impugned acts of the Punjab Vidhan Sabha
violated the norms that should be respected in relation to sub judice matters?
Re: Question I.
12.
Learned counsel appearing for the respondents have submitted that it was proper
for the Punjab Vidhan Sabha to constitute the Special Committee and pass the
impugned resolution which recommended the expulsion of the appellant. The core
of their argument is that the misconduct on part of the appellant had brought
disrepute to the Vidhan Sabha and it was justifiable to exercise legislative privileges
for mitigating the same. The respondents have adopted a two-pronged line of
reasoning.
Firstly,
they have asserted that the alleged misconduct on part of the appellant
amounted to a breach of privilege as 13 well as contempt of the House. Secondly,
they have contended that since the `powers, privileges and immunities'
conferred on State Legislatures by Article 194(3) of the Constitution have not
been codified, it would not be proper to place limitations on their exercise.
The implicit rationale is that legislative assemblies should retain flexibility
in the exercise of their privileges and the power to punish for contempt, so
that they can tackle new and unforeseen impediments to their reputation and
functioning. The respondents' submissions have dwelt at length with the idea
that the legislature's power to punish for its own contempt cannot be trammeled
since it is different from the remedial objective of exercising privileges to
maintain the dignity and discipline of the house. The respondents have
extensively relied on the constitution bench decision in Raja Ram Pal v.
Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184, where this Court had upheld the
Lok Sabha's power to expel its members in view of misconduct in the nature of
accepting bribes to ask specified questions on the floor of the House. However,
the majority opinions of this Court had also clarified that the exercise of
parliamentary privileges in such cases was open to judicial scrutiny.
13. As
outlined earlier, the appellant has questioned the impugned resolution since it
recommends punitive action in respect of his misconduct which was allegedly
committed in his capacity as the Chief Minister of the State of Punjab.
It was
submitted that the alleged irregularity in exempting a plot of land from an
acquisition scheme was entirely relatable to the discharge of executive
functions. The act of exempting land did not in any way obstruct the functions
of the Punjab Vidhan Sabha. It was urged that even though the exercise of
legislative privileges and the concomitant power to punish for contempt have
not been codified, they cannot be construed as unlimited powers since that
could lead to their indiscriminate and disproportionate use. The counsel
appearing for the appellant and the petitioners have also submitted that when
the Special Committee was constituted on 18-12-2007 it did not bear the
nomenclature of a privileges committee and at the time it was not apparent to
the appellant and the petitioners that they were facing such an action.
However, the respondent submits that the incumbent Chief Ministers' motion
brought on 18-12-2007 was in the nature of a privileges motion.
Irrespective
of the contested facts, it will be proper for us to view this controversy from
the prism of legislative privileges. Mr. Gopal Subramanium drew our attention
to the 15 two main considerations that should guide the adjudication of this
case, namely those of `history' and `necessity'.
Considerations
of history require us to examine whether there are any applicable precedents
for the exercise of legislative privileges in similar circumstances. The
consideration of necessity entails that the scope of privileges should be
identified on the basis of what is necessary to prevent or punish obstructions
to legislative functioning.
14.
Before addressing these contentions, we can take a bird's eye view of the law
on legislative privileges. The State Legislatures are conferred with `powers,
privileges and immunities' by way of Article 194 of the Constitution which
reads:
"194.
Powers, privileges, etc., of the Houses of Legislatures and of the members and
committees thereof.- (1) Subject to the provisions of this Constitution and to
the rules and standing orders regulating the procedure of the Legislature,
there shall be freedom of speech in the Legislature of every State.
(2) No
member of the Legislature of a State shall be liable to any proceedings in any
court in respect of anything said or any vote given by him in the Legislature
or any committee thereof, and no person shall be so liable in respect of the
publication by or under the authority of a House of such a Legislature of any
report, paper, votes or proceedings.
16 (3) In
other respects, the powers, privileges and immunities of a House of the
Legislature of a State, and of the members and the committees of a House of
such Legislature, shall be such as may from time to time be defined by the
Legislature by law, and, until so defined, shall be those of that House and of
its members and committees immediately before the coming into force of Section
26 of the Constitution (Forty- fourth Amendment) Act, 1978.
(4) The
provisions of clauses (1), (2) and (3) shall apply in relation to persons who
by virtue of this Constitution have the right to speak in, and otherwise to
take part in the proceedings of, a House of the Legislature of a State or any
committee thereof as they apply in relation to members of that
Legislature."
15. The
powers and privileges conferred on the State Legislatures are akin to those
conferred on the Union Parliament by Article 105. Therefore, the principles and
precedents relatable to the exercise of parliamentary privileges are relevant
for deciding this case. Both Articles 105 and 194 explicitly refer to the
freedom of speech in the House and the freedom to publish proceedings without
exposure to liability. However, other legislative privileges have not been
enumerated. Article 105(3) and 194(3) are openly worded and prescribe that the
powers, privileges and immunities available to the legislature are those which
were available at the time of the enactment of the Constitution (Forty-Fourth)
Amendment Act, 1978.
Subhash
C. Kashyap has elaborated on the Indian position 17 with these words [In
Parliamentary Procedure - The Law, Privileges, Practice and Precedents, Vol. 2
(New Delhi, Universal Law Publishing Co. Pvt. Ltd., 2000) at p. 1555]:
"As
regards other privileges, Art. 105(3) as originally enacted provided that that
in other respects, the powers, privileges and immunities of Parliament, its
committees and members, until defined by Parliament by law, shall be the same
as those of the House of Commons of the United Kingdom as on the coming into
the force of the Constitution on 26 Jan.
1950.
This clause was however, amended in 1978, to provide that in respect of
privileges other than those specified in the Constitution, the powers,
privileges and immunities of each House of Parliament, its members and
Committees 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, its members and
Committees immediately before coming into the force of section 15 of the
Constitution (44th Amendment), 1978 (w.e.f. 20 June 1978). This amendment has
in fact made only verbal changes by omitting all references to the British
House of Commons but the substance remains the same. In other words, each
House, its Committees and members in actual practice, shall continue to enjoy
the powers, privileges and immunities (other than those specified in the
Constitution) that were available to the British House of Commons as on 26 Jan.
1950."
16. Since
the scope of `powers, privileges and immunities' available under Article 105(3)
and 194(3) has not been codified by way of statute till date, it is open for us
to consider the principles and precedents relatable to the British House of
Commons. In Raja Ram Pal's case (supra.) C.K. Thakkar, J. in his concurring
opinion had described Parliamentary Privileges as those fundamental rights
which 18 the House and its Members possess so as to enable them to carry out
their functions effectively and efficiently. It was observed:
"519.
In its creative sense, in England the House did not sit down to build its
edifice of the powers, privileges and immunities of Parliament. The evolution
of the English parliamentary institution has thus historical development. It is
the story of conflict between the Crown's absolute prerogatives and the
Common's 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 the Houses of Parliament
and Members posses 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 Houses as against the prerogatives of the
Crown, the authority of ordinary courts of law and the special rights of the
House of Lords."
17. The
evolution of legislative privileges can be traced back to medieval England when
there was an ongoing tussle for power between the monarch and the Parliament.
In most cases, privileges were exercised to protect the members of parliament
from undue pressure or influence by the monarch among others. Conversely, with
the gradual strengthening of parliament there were also some excesses in the
name of legislative privileges. However, the ideas governing the relationship
between the executive and the legislature have undergone a sea change since
then. In modern parliamentary 19 democracies, it is the legislature which
consists of the people's representatives who are expected to monitor executive functions.
This is achieved by embodying the idea of `collective responsibility' which
entails that those who wield executive power are accountable to the
legislature.
However,
legislative privileges serve a distinct purpose.
They are
exercised to safeguard the integrity of legislative functions against
obstructions which could be caused by members of the House as well as
non-members.
Needless
to say, it is conceivable that in some instances persons holding executive
office could potentially cause obstructions to legislative functions. Hence,
there is a need to stress on the operative principles that can be relied on to
test the validity of the exercise of legislative privileges in the present
case. In his widely cited work, Sir Erskine May (1950) has answered the
question `What constitutes privilege?' in the following manner [See: Erskine
May, Parliamentary Practice, 16th edn.
(London:
Butter worth’s, 1957) in `Chapter III: General View of the Privilege of
Parliament' at p. 42] :
"Parliamentary
privilege is the sum of the peculiar rights enjoyed by each House collectively
as a constituent part of the High Court of Parliament, and by members of each
House individually, without which they could not discharge their functions and
which exceed those possessed by other bodies or individuals.
20 Thus
privilege, though part of the law of the land is, to a certain extent an
exemption from the ordinary law.
The
privileges of individual members of the House of Lords may be distinguished
from, the privileges of individual members of the House of Commons; both again
have common privileges as members of the Parliament;
and the
Lords have special privileges as peers, distinct from those which they have as
members of a House co-ordinate with the House of Commons." [Stubbs,
Constitutional History, iii (4th edn.) p.504] The particular privileges of the
Commons have been defined as:- "The sum of the fundamental rights of the
House and of its individual Members as against the prerogatives of the Crown,
the authority of the ordinary courts of law and the special rights of the House
of Lords."
Distinction
between function and Privilege proper- It is more convenient to reserve the
term `privilege' to certain fundamental rights of each House which are
generally accepted as necessary for the exercise of its constitutional
functions.
Ancillary
nature of Privilege - A necessary means to fulfillment of functions- The
distinctive mark of a privilege is its ancillary character. The privileges of
Parliament are rights which are "absolutely necessary for the due
execution of its powers."
In
Halsbury's Laws of England, 4th edn. (Reissue Vol. 34, at p. 553) it has been
stated:
"Claims
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 21 and when this was communicated to the Commons,
that House agreed...."
18. It
would be instructive to refer to the following extracts from a lecture on
Parliamentary Privileges by Viscount Kilmer - The Lord High Chancellor of Great
Britain, [Delivered on May 4, 1959 at the University of London] :- "The
first question which springs to the mind is, `What precisely is Parliamentary
Privilege?'- and its question which is not altogether easy to answer.
A
privilege is essentially a private advantage in law enjoyed by a person or a
class of persons or an association which is not enjoyed by others. Looked at
from this aspect, privilege consists of that bundle of advantages which members
of both Houses enjoy or have at one time enjoyed to a greater extent than their
fellow citizens: freedom to access to Westminster, freedom from arrest or
process, freedom from liability in the courts for what they say or do in
Parliament.
From
another point of view, Parliamentary Privilege is the special dignity and
authority and enjoyed by each House in its corporate capacity such as its right
to control its own proceedings and to punish both members and strangers for
contempt. I think these are really two sides of the coin. Any Parliament, it is
to function properly, must have some privileges which will ensure freedom (to a
greater or lesser degree) from outside interference. If the business of
Parliament is of supreme importance, then nobody else must be allowed to impede
it, whether by throwing fireworks from the gallery or bringing actions against
members for what they say in debate.
A close
parallel is provided by the powers of the superior courts to punish for
contempt. If you try to interfere with the administration of justice either by
throwing tomatoes at the judge or by intimidating a witness you will be liable
to be proceeded against for 22 contempt. Once again, a body whose functions are
of paramount importance can be seen making certain that outside interference is
reduced to a minimum."
19. In
Australia, the scope of Parliamentary Privileges was enunciated in the 76th
Report of the Senate Committee of Privileges, wherein it was observed:
"The
word "privilege", modern usage, connotes a special right accorded to
a select group which sets that group apart from all other persons. The
Macquarie Dictionary's primary definition of privilege is as follows: "A
right of immunity enjoyed by a person or persons beyond the common advantage of
others. The privileges of Parliament are immunities conferred in order to
ensure that the duties of members as representatives of their constituents may
be carried out without fear of intimidation or punishment, and without improper
impediment. These immunities, established as part of the common law and
recognized in statutes such as the Bill of Rights of 1688, are limited in
number and effect. They relate only to those matters which have common to be
recognized as crucial to the operation of a fearless Parliament on behalf of
the people. As pointed out in a submission by the Department of the Senate to
the Joint Select Committee on Parliamentary Privilege, a privilege of
Parliament is more properly called an immunity from the operation of certain
laws, which are otherwise unduly restrictive of the proper performance of the
duties of members of Parliament."
20. In a
Canadian case reported as New Brunswick Broadcasting Co. v. Nova Scotia, (1993)
100 DLR (4th) 212, Lamer, C.J. had cited the following extract from an 23
academic commentary [See: Joseph Maingot, Parliamentary Privilege (Toronto:
Butterworths, 1982) at p. 12]:
"Parliamentary
privilege is the necessary immunity that the law provides for members of
Parliament and for members of the legislatures of each of the ten provinces and
two territories, in order for these legislators to do their legislative work.
It is also necessary immunity that the law provides for anyone while taking
part in a proceeding in Parliament or in a legislature. Finally, it is the
authority and power of each House of Parliament and of each legislature to
enforce that immunity.
Parliamentary
privilege and immunity with respect to the exercise of that privilege are
founded upon necessity. Parliamentary privilege and the breadth of individual
privileges encompassed by that term are accorded to members of the House of
Parliament and the legislative assemblies because they are judges necessary to
the discharge of their legislative function.
The
contents and extent of parliamentary privileges have evolved with reference to
their necessity. In Precedents of Proceedings in the House of Commons, Vol. I,
3rd Ed. (London: T Payne, 1796), John Hatsell defined at p. 1 the privileges of
parliament as including those rights which are absolutely necessary for the due
execution of its power". It is important to note that, in this context,
the justification of necessity is applied in a general sense. That is, general
categories of privilege are deemed necessary to the discharge of the Assembly's
function. Each specific instance of the exercise of a general privilege needs
to be shown to be necessary."
21. In
the past, this Court has adopted a similar conception of legislative privileges
to interpret Article 194(3). For example in Re Special Reference 1 of 1964, AIR
24 1965 SC 745, (also known as the U.P. Assembly case) Gajendragadkar C.J. had
held, at Para. 33:
"...
The Constitution-makers must have thought that the legislatures will take some
time to make laws in respect of their powers, privileges and immunities.
During
the interval, it was clearly necessary to confer on them the necessary powers,
privileges and immunities. There can be little doubt that the powers,
privileges and immunities which are contemplated by clause (3), are incidental
powers, privileges and immunities which every legislature must possess in order
that it may be able to function effectively, and that explains the purpose of
the latter part of clause (3)."
22. In
State of Karnataka v. Union of India, (1977) 4 SCC 608, a seven judge bench of
this Court construed the powers contained in Article 194(3) as those `necessary
for the conduct of the business of the House', at Para. 57:
"57.
It is evident, from the Chapter in which Article 194 occurs as well as the
heading and its marginal note that the `powers' meant to be indicated here are
not independent. They are powers which depend upon and are necessary for the
conduct of the business of each House. They cannot also be expanded into those
of the House of Commons for all purposes... We need not travel beyond the words
of Article 194 itself, read with other provisions of the Constitution, to
clearly read such a conclusion."
23. Y.K.
Sabharwal, C.J. (majority opinion) in Para. 471 of Raja Ram Pal's case (supra.)
has quoted from Parliamentary 25 Privilege- First Report (Lord Nicholas) which
describes Parliamentary Privilege as:
"Parliamentary
privilege consists of the rights and immunities which the two Houses of
Parliament and their Members and officers possess to enable them to carry out
their parliamentary functions effectively.
Without
this protection Members would be handicapped in performing their parliamentary
duties, and the authority of Parliament itself in confronting the executive and
as a forum for expressing the anxieties of citizens would be correspondingly
diminished."
In U.P.
Assembly case (supra.), this Court had also drawn a distinction between the
exercise of legislative privileges and that of ordinary legislative functions
in the following manner:
"There
is a distinction between privilege and function, though it is not always
apparent. On the whole, however, it is more convenient to reserve the term
`privilege' to certain fundamental rights of each House which are generally
accepted as necessary for the exercise of its constitutional functions. The
distinctive mark of a privilege is its ancillary character. The privileges of
Parliament are rights which are absolutely necessary for the due execution of
its powers. They are enjoyed by individual Members, because the House cannot
perform its functions without unimpeded use of the services of its Members; and
by each House for the protection of its Members and the vindication of its own
authority and dignity."
In
Hatsell's Collection of Cases of Privileges of Parliament (1776), Parliamentary
privileges have been 26 defined as those rights which are `absolutely necessary
for the due execution of its powers'. A similar definition has also been quoted
in Sir Erskine May's Parliamentary Practice (1950) and is also found in
Ramanatha Aiyar, Advanced Law Lexicon, 2nd edn. Vol. 3 (New Delhi: Wadhwa &
Co. Nagpur, 1997) which defines privilege as:
"The
distinctive mark of a Parliamentary Privilege is its ancillary character. They
are rights which a sovereign legislature must possess for the due execution of
its powers. Some of them are enjoyed by individual members of the House."
24. The
observations cited above make it amply clear that the exercise of legislative
privileges is not an end in itself. They are supposed to be exercised in order
to ensure that legislative functions can be exercised effectively, without
undue obstructions. These functions include the right of members to speak and
vote on the floor of the house as well as the proceedings of various
legislative committees. In this respect, privileges can be exercised to protect
persons engaged as administrative employees as well. The important
consideration for scrutinising the exercise of legislative privileges is
whether the same was necessary to safeguard the integrity of legislative
functions. We are also expected to look to 27 precedents involving the British
House of Commons. The most elaborate list of Parliamentary Privileges exercised
by the British House of Commons has been compiled by Pritiosh Roy in his work
Parliamentary Privilege in India which has been quoted in Raja Ram Pal's case
(supra.) at Paragraphs 94-97 and has been reproduced below:
1)
Privilege of freedom of speech, comprising the right of exclusive control by
the House over its own proceedings. It is a composite privilege which includes:
(i) the
power to initiate and consider matters of legislation or discussion in such
order as it pleases;
(ii) the
privilege of freedom in debate proper- absolute immunity of members for
statements made in debate, not actionable at law;
(iii) the
power to discipline its own members;
(iv) the
power to regulate its own procedure- the right of the House to be the sole
judge of the lawfulness of its own proceedings;
(v) the
right to exclude the jurisdiction of the Courts;
(vi) the
right to exclude strangers;
(vii) the
right to ensure privacy of debate;
(ix) the
right to control or prohibit publication of its debates and proceedings;
2)
Privilege of freedom from arrest or molestation the claim of the Commons to
freedom of members from arrest in civil action or suits during the time of the
Parliament and during the period when a member journeys to or returns from the
Parliament. This privilege includes:
(i)
exemption of a member from attending Court as a witness- service of a civil or
criminal process within the precincts of the House is a breach of privilege.
(ii) a
member cannot be admitted as bail;
(iii)
exemption of a member from jury service (iv) no such privilege claimed in
respect of criminal offences or statutory detention;
28 (v)
right of the House to be informed of arrest of members on criminal charges;
(vi)
extension of the privilege to witnesses summoned to attend before the House or
its committees, and to officers in immediate attendance upon the service of the
House.
3)
Privilege of freedom of access to the sovereign through the Speaker.
4)
Privilege of the House of receiving a favourable construction of the
proceedings of the House from the sovereign.
5) Power
of the House to inflict punishment for contempt on members or strangers- a
power akin to the powers possessed by the superior courts of justice to punish
for contempt.
It
includes:
(i) the
power to commit a person to prison, to the custody of its own officers or to
one of the State prisons, [the keystone of parliamentary privilege] the
commitment being for any period not beyond the date of the prorogation of the
House;
(ii) the
incompetence of the courts of justice to admit a person committed by the House
to bail;
(iii)
when the person is committed by the House upon a general or unspeaking warrant
which does not state the particular facts constituting the contempt the
incompetence of the courts of justice to inquire into the nature of contempt;
(iv) the
power of the House to arrest an offender through its own officers or through
the aid and power of the civil government;
(v) the
power of the officers of the House to break open outer doors to effect the
execution of the warrant of arrest;
(vi) the
power of the House to administer reprimand or admonition to an offender;
(vii) the
power of the House to secure the attendance, whether in custody or not, of
persons whose conduct is impugned on a matter of privilege;
(viii)
the power of the House to direct the Attorney General to prosecute an offender
where the breach of privilege is also an offence at law and the extent of the
power 29 of the House to inflict punishment is not considered adequate to the
offence;
(ix) the
power of the House to punish a member by (a) suspension from the service of the
House, or (b) expulsion, rendering his seat vacant.
6)
Privilege of the House to provide for its own due constitution or composition.
It includes:
(i) the
power of the House to order the issue of new writs to fill vacancies that arise
in the Commons in the course of a Parliament;
(ii) the
power of the House in respect of the trial of controverter elections of members
of the Commons;
(iii) the
power of the House to determine the qualifications of its members to sit and
vote in the House in cases of doubt- it includes the power of expulsion of a
member.
A major
portion of this ancient privilege of the House of Commons has been eroded by
the statute.
7) The
power of the House to compel the attendance of witnesses and the production of
papers."
25.
However, we are only obliged to follow British precedents to the extent that
they are compatible with our constitutional scheme. This is because the
legislatures in India do not have a wide power of self-composition in a manner
akin to the British House of Commons. This position was clarified in Raja Ram
Pal's case, (Supra.) at Para. 87:
"87.
In U.P. Assembly Case (Special Reference No.1 of 1964) it was settled by this
Court that a broad claim that all the powers enjoyed by the House of Commons at
the commencement of the Constitution of India vest in an Indian Legislature
cannot be accepted in its 30 entirety because there are some powers which
cannot obviously be so claimed. In this context, the following observations
appearing at SCR p.448 of the judgment should suffice: (AIR 1965 SC 745, p.764,
para. 45) "Take the privilege of freedom of access which is exercised by
the House of Commons as a body and through its Speaker `to have at all times
the right to petition, counsel, or remonstrate with their Sovereign through
their chosen representative and have a favourable construction placed on his
words was justly regarded by the Commons as fundamental privilege' [Sir Erskine
May's Parliamentary Practice, (16th Edn.), p.86].
It is
hardly necessary to point out that the House cannot claim this privilege.
Similarly, the privilege to pass acts of attainder and impeachments cannot be
claimed by the House. The House of Commons also claims the privilege in regard
to its own Constitution. This privilege is expressed in three ways, first by
the order of new writs to fill vacancies that arise in the Commons in the
course of a Parliament; secondly, by the trial of controverted elections; and
thirdly, by determining the qualifications of its members in cases of doubt
(May's Parliamentary Practice, p.175). This privilege again, admittedly, cannot
be claimed by the House.
Therefore,
it would not be correct to say that all powers and privileges which were
possessed by the House of Commons at the relevant time can be claimed by the
House."
26.
Hence, it is a well-settled position that all the privileges claimed by the
House of Commons cannot be automatically claimed by legislative bodies in
India. With respect to the examples noted above, it is quite apparent that
vacancies arising in the legislative bodies (Union Parliament and State
Legislative Assemblies) are duly 31 filled up through the election procedures
contemplated by the Constitution that have been fleshed out in detail through
the Representation of People Act, 1951. Similarly disputes relating to
elections are heard by the competent courts and disqualifications are effected
as per the grounds enumerated in the Constitution. While Articles 101 and 102
enumerate the grounds for vacation of seats and the disqualification of Members
of Parliament (MPs) respectively, Article 190 and Article 191 deal with these
aspects in relation to Members of State Legislatures. The manner of effecting
disqualifications has also been laid down in relation to the various grounds
for the same.
27. In
Raja Ram Pal's case, (supra.) the majority had decided that the parliamentary
privileges available under Article 105(3) could be legitimately exercised to
expel members for grounds other than those prescribed for disqualification of
members under Article 102. This Court had upheld the validity of the
proceedings of a privileges committee of the Lok Sabha which had inquired into
the improper acts of some MPs and recommended their expulsion.
In that
case, the misconduct was in the nature of accepting bribes in return for asking
specified questions on the floor of the house. One of the expelled MPs had been
32 reported for accepting gratification in lieu of improper allocation of funds
under the Member of Parliament Local Area Development Scheme (MPLADS). The
acceptance of bribes had been recorded on camera by some journalists and later
on the video-footage was treated as conclusive evidence of guilt by the
privileges committee. In the present case, the respondents have cited this decision
in support of their contention that it was proper for the Punjab Vidhan Sabha
to have exercised its' power to punish for contempt [derived from Article
194(3) of the Constitution] in order to recommend the expulsion of the
appellant. It was argued that the Vidhan Sabha was empowered to expel members
on grounds other than those prescribed for disqualification of members under
Article 191. However, an important consideration in that case was that the
misconduct which was the ground for the MPs' expulsion had a direct connection
with their legislative functions, namely those of asking questions at the
behest of vested interests and the improper allocation of funds under the
MPLADS scheme respectively. With respect to the allegations against the appellant
in the present case, it is quite difficult to see how the improper exemption of
a particular plot of land from an acquisition scheme caused an obstruction to
the conduct of legislative business. If it is indeed felt that 33 the
allegations of misconduct on part of the former Chief Minister had brought
disrepute to the entire House, then the proper course is to pursue criminal
investigation and prosecution before the appropriate judicial forum.
28. At
this juncture, we must reiterate the principles which guide judicial scrutiny
of the exercise of legislative privileges (including the power to punish for
contempt of the House). In Raja Ram Pal's case, Y.K. Sabharwal, C.J. had framed
the following guidelines, at Para. 431:
.
"431. Summary of the Principles relating to Parameters of Judicial Review
in relation to exercise of Parliamentary Provisions We may summarize the
principles that can be culled out from the above discussion. They are:
a.
Parliament is a co-ordinate organ and its views do deserve deference even while
its acts are amenable to judicial scrutiny;
b.
Constitutional system of government abhors absolutism and it being the cardinal
principle of our Constitution that no one, howsoever lofty, can claim to be the
sole judge of the power given under the Constitution, mere co-ordinate
constitutional status, or even the status of an exalted constitutional
functionaries, does not disentitle this Court from exercising its jurisdiction
of judicial review of action which part-take the character of judicial or
quasi-judicial decision;
c. The
expediency and necessity of exercise of power or privilege by the legislature
are for the 34 determination of the legislative authority and not for
determination by the courts;
d. The
judicial review of the manner of exercise of power of contempt or privilege
does not mean the said jurisdiction is being usurped by the judicature;
e. Having
regard to the importance of the functions discharged by the legislature under
the Constitution and the majesty and grandeur of its task, there would always
be an initial presumption that the powers, privileges etc have been regularly
and reasonably exercised, not violating the law or the Constitutional
provisions, this presumption being a rebuttable one;
f. The
fact that Parliament is an august body of co-ordinate constitutional position
does not mean that there can be no judicially manageable standards to review
exercise of its power;
g. While
the area of powers, privileges and immunities of the legislature being
exceptional and extraordinary its acts, particularly relating to exercise
thereof, ought not to be tested on the traditional parameters of judicial
review in the same manner as an ordinary administrative action would be tested,
and the Court would confine itself to the acknowledged parameters of judicial
review and within the judicially discoverable and manageable standards, there
is no foundation to the plea that a legislative body cannot be attributed
jurisdictional error;
h. The
Judicature is not prevented from scrutinizing the validity of the action of the
legislature trespassing on the fundamental rights conferred on the citizens;
i. The
broad contention that the exercise of privileges by legislatures cannot be
decided against the touchstone of fundamental rights or the constitutional
provisions is not correct;
j. If a
citizen, whether a non-member or a member of the Legislature, complains that
his fundamental rights under Article 20 or 21 had been contravened, it is the
duty of this Court to examine the merits of the said 35 contention, especially
when the impugned action entails civil consequences;
k. There
is no basis to claim of bar of exclusive cognizance or absolute immunity to the
Parliamentary proceedings in Article 105(3) of the Constitution;
l. The
manner of enforcement of privilege by the legislature can result in judicial
scrutiny, though subject to the restrictions contained in the other
Constitutional provisions, for example Article 122 or 212;
m.
Articles 122(1) and Article 212(1) displace the broad doctrine of exclusive
cognizance of the legislature in England of exclusive cognizance of internal
proceedings of the House rendering irrelevant the case law that emanated from
courts in that jurisdiction; inasmuch as the same has no application to the system
of governance provided by Constitution of India n. Article 122(1) and Article
212(1) prohibit the validity of any proceedings in legislature from being
called in question in a court merely on the ground of irregularity of
procedure;
o. The
truth or correctness of the material will not be questioned by the court nor
will it go into the adequacy of the material or substitute its opinion for that
of the legislature;
p.
Ordinarily, the legislature, as a body, cannot be accused of having acted for
an extraneous purpose or being actuated by caprice or mala fide intention, and
the court will not lightly presume abuse or misuse, giving allowance for the
fact that the legislature is the best judge of such matters, but if in a given
case, the allegations to such effect are made, the Court may examine the
validity of the said contention, the onus on the person alleging being
extremely heavy q. The rules which the legislature has to make for regulating
its procedure and the conduct of its business have to be subject to the
provisions of the Constitution;
36 r.
Mere availability of the Rules of Procedure and Conduct of Business, as made by
the legislature in exercise of enabling powers under the Constitution, is never
a guarantee that they have been duly followed;
s. The
proceedings which may be tainted on account of substantive or gross illegality
or unconstitutionality are not protected from judicial scrutiny;
t. Even
if some of the material on which the action is taken is found to be irrelevant,
the court would still not interfere so long as there is some relevant material
sustaining the action;
u. An
ouster clause attaching finality to a determination does ordinarily oust the
power of the court to review the decision but not on grounds of lack of
jurisdiction or it being a nullity for some reason such as gross illegality,
irrationality, violation of constitutional mandate, mala fides, non- compliance
with rules of natural justice and perversity;"
29.
Hence, we are empowered to scrutinize the exercise of legislative privileges
which admittedly include the power of a legislative chamber to punish for
contempt of itself.
Articles
122(1) and 212(1) make it amply clear that Courts cannot inquire into matters
related to irregularities in observance of procedures before the legislature.
However, we can examine whether proceedings conducted under Article 105(3) or
194(3) are `tainted on account of substantive or gross illegality or
unconstitutionality'. The facts before us do not merely touch on a procedural
irregularity. The appellant has contended that the Punjab Vidhan Sabha has 37
committed a substantive jurisdictional error by exercising powers under Article
194(3) to inquire into the appellant's actions which were taken in his
executive capacity. As explained earlier, the relevant fact here is not only
that the allegations of wrongdoing pertain to an executive act, but the fact
that there is no conceivable obstruction caused to the conduct of routine
legislative business.
30.
Before commenting further on the merits of the contentions, we must draw
attention to the specific guidelines in Raja Ram Pal's case (supra.) that
advocate due deference to the actions of the legislature in the ordinary course
of events. We do recognize that the threshold for exercising judicial review in
a case such as the present one is indeed very high and we must begin with a
presumption that the legislatures' actions were valid.
However,
the counsel for the appellant and the petitioners have produced sufficient
materials to demonstrate that it was not necessary for the Punjab Vidhan Sabha
to have exercised its powers under Article 194(3) to recommend and then notify
the expulsion of the appellant. We fail to see how the alleged misconduct on
part of the appellant had the effect of obstructing the ordinary legislative
functions of the Vidhan Sabha. In its role as a deliberative body which 38 is
expected to monitor executive functions in line with the idea of `collective responsibility',
the Punjab Vidhan Sabha was of course free to inquire into the alleged
misconduct and examine its implications. However, the act of recommending the
appellant's expulsion through the impugned resolution cannot be justified as a
proper exercise of `powers, privileges and immunities' conferred by Article
194(3).
31. In
their submissions, the counsel for the respondents have cited some English
precedents in an attempt to draw an analogy with the facts in the present case.
The intended purpose of doing so is to demonstrate the exercise of legislative
privileges in the past to punish conduct that took place outside the `four
walls of the house' and yet diminished the reputation of the legislature. We
have already explained that all British precedents cannot be automatically
followed in the Indian context. One reason for this is that Indian legislatures
are controlled by a written constitution and hence they do not have an absolute
power of self-composition, unlike the British House of Commons which is
controlled by an unwritten constitution.
Another
reason is that some of the English precedents involving the exercise of
privileges were clear instances 39 of over breadth. Far from being good law as
contended by the respondents, these old English cases have been subsequently
described by authors as examples of arbitrary exercise of privileges. In fact
Para. 217 of Raja Ram Pal's case (supra.) conveys this position in the
following words:
"217.
Constitutional History of England by Professor F.W. Maitland (1st Edn. 1908,
reprinted 1941), based on his lectures, is divided chronologically. In the last
and most contemporary `Period V' titled "Sketch of Public Law at the
Present Day (1887-88)", he deals with the House of Commons in Part III. It
has been opined by him that the earlier exercise of privileges from the
fourteenth to the eighteenth century have fallen into utter desuetude an may
furnish only an example of an arbitrary and sometimes oppressive exercise of
uncanalised power by the House. After mentioning the membership and the
qualification of the voters as also principles and the mode of election and
dealing with the power of the voters as also principles and the mode of
election and dealing with the power of determining disputed elections by the House
of Commons, one of the facets of the privilege of the House of Commons to
provide for and regulate its own constitution, in the context of the vacation
of seats in the House by incurring disqualifications, he refers in sub-para (6)
to the power of expulsion.
His words
may be extracted:
"The
House has an undoubted power of expelling a Member, and the law does not
attempt to define the cases in which it may be used. If the House voted the
expulsion of A.B. on the ground that he was ugly, no court could give A.B. any
relief.
Probably
it would not be exercised now- a days, unless the Member was charged with crime
or with some very gross misbehaviour falling short of crime, and in general the
House would wait until 40 he had been tried and convicted by a court of law. In
1856, a Member who had been indicted for fraud and who had fled from the
accusation was expelled."
32. The
respondents have quoted Para. 215 of Raja Ram Pal's case (supra.) to contend
that even in cases of criminal offences such as forgery, perjury, breach of
trust, corruption in public offices etc. wherein there may be no direct
obstruction to legislative business, members have been expelled from the
British House of Commons through the exercise of Parliamentary privileges. In
fact, Para. 215 paraphrases a passage from Sir Erskine May's prominent work
which touches on the power of the House to expel its' members. However, the
exact passage dealing with the power of expulsion, [See Erskine May,
Parliamentary Practice, 15th Edn. (1950)] states that at the time of writing
(i.e. 1950) the power of expulsion was reserved only for cases involving
conviction for grave misdemeanors. A reading of the original passage makes it
amply clear that Sir Erskine May was referring to grounds on which members had
been expelled in the past. However, citing the same does not amount to their
endorsement and the respondent's reliance on the said passage is quite
misplaced. The original passage is reproduced below:
41
EXPULSION BY THE COMMONS "The purpose of expulsion is not so much
disciplinary as remedial, not so much to punish Members as to rid the House of
persons who are unfit for membership. It may justly be regarded as an example
of the House's power to regulate its own constitution. But it is more convenient
to treat it among the methods of punishment at the disposal of the House. At
the present time expulsion is practically reserved for the punishment of
persons convicted of grave misdemeanors, whose seats are not, as in the case of
Members convicted of treason or felony, automatically vacated.
Members
have been expelled as being in open rebellion; as having been guilty of
forgery; of perjury; of frauds and breaches of trust; of misappropriation of
public money; of conspiracy to defraud; of fraudulent conversion of property;
of corruption in the administration of justice, or in public offices, or in the
execution of their Members of the House; of conduct unbecoming the character of
an officer and a gentlemen; and contempt, libels and other offences committed against
the House itself."
33. At
this juncture, we must clarify that if a sitting member of a legislature in
India is found guilty of committing a statutory offence, then disqualification
can be a consequence as per the scheme contemplated in the Representation of
People Act, 1951. The respondents have also referred to the Table produced in
Para. 582 of Raja Ram Pal's case (supra.) which surveys the exercise of
privileges by the British House of Commons between 1667 and 1954. They have
drawn our attention to some of the instances to contend that members were
indeed expelled for 42 acts that took place outside the `four walls of the
house' and had no direct bearing on legislative functions. However as we have
explained above, it is not appropriate to mechanically rely on all of these
precedents. If we must look to English precedents for guidance, we find a far
more appropriate sample set in the table of cases from the period 1945-1965
which forms an Appendix to the Report of the Select Committee on Parliamentary
Privilege (1967) in the United Kingdom. The same has been reproduced below:
RECENT
CASES OF PRIVILEGE (1945-65) DAT Subject of Report and Action by the E
Complaint Recommendation of House the Committee of Privileges March Offer of a
Offer was a Tacit 1945 H.C. bribe conditional acceptance 63 (Henderson's
donation- no (1944-45) Case) question of bribery arose and no breach of
privilege October Service of Breach of Tacit 1945 H.C. summons within privilege
but Acceptance 31 the precincts particular (1945-46) on a sitting circumstances
did day (Verney's not require Case) further action July 1946 Poster designed
Breach of Tacit H.C. 181 to intimidate privilege but too Acceptance (1945-46)
Members (Mrs. petty in scale to Tennant's Case) justify further action by House
December Assault on Member and Resolution 1946 Member assailant both :Member
guilty H.C. 36 (Piratin's guilty of gross (1946- Case) contempt contempt, 47)
assailant 43 guilty of contempt (10 February 1947) March Improper Nothing
improper Resolution:
1947
pressure on and no breach of Inconsistent H.C. 118 Member by Trade privilege
with duty of (1946-47) Union Member to (W.J.Brown's enter Case) contractual
agreements limiting his independence in Parliament April Newspaper 1)Grave
contempt (1) Member 1947 suggested by newspaper and expelled;
H.C. 138
Members by Mr. Allighan Editor (1946-47) accepted 2) Disclosure of summoned to
payments for information from Bar and information party meetings reprimanded
(Gary for payment (30 October, Allighan's constitutes 1947) Case) breach of 2)
This view privilege not accepted by House July 1947 Refusal by House to take
Witnesses H.C. 137 witnesses such steps as may ordered to (1946- before seem
necessary attend at Bar 47) Committee of House and Privileges to examined by
answer certain Mr. Speaker questions (Case Resolution:
of
Schofield Refusal to and Dobson) answer constitutes contempt (12 August 1947)
August Personal Member guilty of Member ordered 1947 statement by privilege to
be H.C. 142 Member about reprimanded (1946- acceptance of for 47) payments by
dishonourable newspaper conduct (House referred to did not Committee confirm
the (Walkden's view of the Case) Committee on 44 breach of privilege) 30
October and 10 December 1947) March Broadcast Inconsistent with Tacit 1948
reflecting on dignity of House acceptance H.C. 112 allegiance of to examine
(1947-48) Members (Colm further Brogan's Case) July 1949 Misrepresentati
Technical breach Tacit H.C. 261 on by newspaper of privilege but acceptance
(1948-49) of Member's no action called speech (Case of for "Daily
Worker") March Broadcast No contempt Tacit 1951 commenting on acceptance
H.C. 149 future decision (1950-51) by House on privilege matter (B.B.C.
case)
March Letter Letters did not Tacit 1951 reflecting on reflect on acceptance
H.C. 227 integrity of Members in their (1950-51) Members (Clan capacity as such
Briton case) and therefore no breach of privilege June 1951 Disclosure by An
inquiry into Tacit H.C. 227 newspaper of the facts did not Acceptance (1950-51)
evidence given reveal any to Estimates intention any Committee intention to
(Case of Daily infringe Telegraph) privilege June 1951 Speech by Lady Words
constituted Tacit H.C. 235 Mellor imputed a breach of Acceptance (1950-51)
partially to privilege but the Deputy circumstances did Speaker not require
(Lady Mellor's further action by Case) House July 1951 Obstruction by No breach
of Tacit H.C. 244 police of privilege Acceptance (1950-51) Member driving to
attend House and subsequent 45 summons (John Lewis's Case) April Lady Member's
Unauthorized Tacit 1953 disrespect in reports of acceptance H.C. 171
"Sunday proceedings in (1952-53) Express" House amount to article
breach of describing privilege; but other Members normally House (Mrs. Ford's
waives its case) privileges.
Apologies
having been made, no further action needed December Reflection on Breach of
Tacit 1953 Members in privilege; but Acceptance H.C. 31 newspaper matter not
worthy (1953-54) article of occupying imputing further time of motives in the
House voting (Case of "Daily Worker") March Deputy No precedent for
Tacit 1955 Assistant regarding it as Acceptance H.C. 112 Chaplain breach of
(1954-55) General privilege; but threatens a matter for subordinate responsible
with a view to Minister influencing proceedings in Parliament November
Molestation of Serious breach of Tacit 1956 Member by privilege; but in
acceptance H.C. 27 telephone view of humble (1956-57) (Editor of apology, no
Sunday further action Graphic's needed case ) November Imputation in Editor of
"Sunday Editor ordered 1956 newspaper Express" guilty to attend at
H.C. 38 article that of serious Bar and (1956-57) Members were contempt and
apology made receiving should be at Bar of 46 "prodigious"
reprimanded House supplementary Resolution: He petrol was guilty of allowances
serious (Case of contempt (24 "Sunday January 1957) Express")
December Offensive Cartoon Tacit 1956 newspaper constituted Acceptance H.C. 39
cartoon reflection on (1956-57) reflecting on Members and conduct of contempt,
but in Members (Case view of of "Evening withdrawal of News") cartoon
from later editions and publication of unqualified apology, no further action
needed January Broadcast and No contempt by Tacit 1957 newspaper B.B.C. or by
acceptance H.C. 74 comment on newspaper (1956- matter under 57) consideration
by Committee of Privileges (Case of B.B.C.
and
"Romford Recorder"
newspaper
) April Action by Breach of Resolution:
1957
London privilege London H.C. 305 Electricity Electricity (1956-57) Board in
Board had not threatening to commented any institute breach of proceedings for
privilege libel Division: Ayes respecting 219; Noes 196 statement in (8 July
1958) letter by Member to Minister (Strauss Case) July 1960 Letter Breach of
Tacit 47 H.C. 284 containing privilege; but no acceptance (1959-60) threat to
further action Member (Colin needed as offence Jordan's case) had not been
repeated March Reflection on No breach of Tacit 1964 allegiance of privilege
and no acceptance H.C. 247 Members made contempt of the (1963-64) outside House
House; no further (Quintin Hogg's action needed Case) February Imputation Gross
contempt of Tacit 1965 against House and breach acceptance H.C. 129 Member's of
privilege; but 1964-65 drunkenness no further action (Duffy's case) needed
following letter from Member withdrawing remarks May 1965 Letter Breach of
Tacit H.C. 228 threatening privilege and acceptance (1964-65) Members of
improper attempt House (case of to influence anonymous Members; in their
threatening parliamentary letters) conduct; but dignity of House best
maintained by taking no further action July 1965 Speech by No contempt and
Tacit H.C. 269 Chancellor of no further action acceptance (1964-65) the
Exchequer needed outside House reflecting on Members (Callaghan's case)
34. A
perusal of the above-mentioned table reveals the following:
48 (i)
The only cases in this Table where the House was of the view that a breach of
privileges had taken place were those in which the questionable conduct bore a
direct nexus to the functioning or the proceedings of the House or the
functioning of a member within the House. Even in such cases no serious action
followed, much less an action of expulsion. These were:
7 Service
of summons in the precincts of the House without permission of the House
(Verney's case 1945-46) 7 Misrepresentation by a newspaper of the speech of a
Member within the House (Walkden's Case 1946-47) 7 Speech by a Member imputing
impartiality to the Deputy Speaker of the House 7 Unauthorized reports of proceedings
of the House (Mrs. Ford's case 1952-53) 7 Intimidation/molestation/threat of a
Member in the House (Mrs. Tennant's case 1945-46) and (Editor of "Sunday
Graphic's" case 1956-57) and (Colin Jordan's case 1959-60) (ii) The
instances where the House was of the view that contempt of the House had taken
place were those where there were direct obstructions and imputations against
members, namely when:
49 7
There was an assault on the Member in the House (Piratin's case 1946-47) 7
There was a refusal by a witness to answer questions before a Privileges
Committee (Case of Schofield and Dobson 1946-47) 7 There was an imputation by a
newspaper that members were receiving unusually large petrol allowances (case
of "Sunday Express" 1956-57) 7 There was an imputation regarding a
Member's drunkenness (Duffy's case 1964-65) (iii) In the one instance where the
Privileges Committee did indeed recommend the expulsion of a member (Gary
Allighan, 1947) the House ultimately did not accept the same recommendation.
35. It would
be safe to say that a breach of privilege by a member of the legislature can
only be established when a member's act is directly connected with or bears a
proximity to his duties, role or functions as a legislator.
This test
of proximity should be the rule of thumb, while of course accounting for
exceptional circumstances where a person who is both a legislator and a holder
of executive office may commit a breach of privilege. It is our 50 considered
view that such a breach has not occurred in the present case.
36. Even
if we turn to parliamentary practice in India, it is quite apparent that the
expulsion of members should only be sustained if their actions have caused
obstructions to legislative functions or are likely to cause the same. The
following examples have been discussed in Raja Ram Pal's case (supra.) at
Paragraphs 301-317:
7 One can
refer to the chain of events leading up to the resignation of Mr. H.G. Mudgal
from the Lok Sabha on 24-9-1951. Mr. H.G. Mudgal was charged with having
engaged himself in `certain dealings with the Bombay Bullion Association which
included canvassing support and making propaganda in Parliament on problems
like option business, stamp duty etc. and receipt of financial or business
advantages from the Bombay Bullion Association' in the discharge of his duty in
Parliament. Subsequently, a Committee appointed by Parliament to inquire into
the said member's activities found his conduct to be derogatory to the dignity
of the House and inconsistent with the standard which Parliament was entitled
to expect from its members. In pursuance of these findings, a motion 51 for
expulsion was brought before the House which prompted the member to submit his
resignation. [See:
Kaul and
Shakdher, Practice and Procedure of Parliament, 5th edn. (New Delhi:
Metropolitan Book Co.
Pvt. Ltd.
2001) at p. 262] It is pertinent to note that the misconduct which triggered a
recommendation for expulsion had a clear nexus with legislative functions.
7 Another
relevant instance is that of the expulsion of Mr. Subramanium Swamy from the
Rajya Sabha. On 2-9-1976 the Rajya Sabha adopted a motion appointing a
committee to investigate the conduct and activities of Mr. Swamy, within and
outside the country, including alleged anti-India propaganda calculated to
bring into disrepute Parliament and other democratic institutions of the
country and generally behaving in a manner unworthy of a member. The Committee
presented its report on 12-11-1976 recommending expulsion and on 15- 11-1976 the
Rajya Sabha adopted a motion to expel the said member. [See: Subhash C.
Kashyap, Parliamentary Procedure- Law Privileges, Practice & Precedents
Vol.
2, (New
Delhi: Universal Law Publishing Co. Pvt. Ltd., 2000) at p. 1657] 52 7 We can
also invite attention to the instance when Mrs. Indira Gandhi and two others
were expelled from the Lok Sabha by way of a motion adopted on 19-12-1978. The
background was that on 18-11-1977, a motion was adopted by the House referring
to the Committee of privileges a question of breach of privilege and contempt
of the House against Mrs.
Gandhi
and others regarding obstruction, intimidation, harassment and institution of
false cases by Mrs.
Gandhi
and others against certain officials. The Committee of Privileges recorded a
finding that Mrs.
Indira
Gandhi had committed a breach of privilege and contempt of the House by causing
obstruction, intimidation, harassment and institution of false cases against
the officers concerned who were collecting information for the purpose of an
answer to a certain question that had been asked in the House.
The
nature of punitive action to follow was left to the wisdom of the House. On
19-12-1978, the House adopted a motion which recommended Mrs.
Gandhi's
expulsion among other things. However, this expulsion was undone during the
term of the Seventh Lok Sabha, wherein there was a substantive debate on
whether the House had the power to expel its members 53 in the exercise of
privileges. At that point of time, the majority of the House had resolved that
there was no power of expulsion in such circumstances. However, the position
has since been clarified in Raja Ram Pal's case (supra.) which has recognised
the power of legislatures to expel their members, subject to the judicially
prescribed guidelines. Nevertheless, what is relevant for the present case is
that the initial recommendation for expulsion was triggered by conduct that
bore a direct causal link to legislative functions.
7 Another
comparable instance was noted by S.C. Agarwal, J. in his dissenting opinion in
P.V. Narasimha Rao v. State, (1998) 4 SCC 626, wherein it was observed:
"25.
It does not, however, constitute breach or contempt of the House if the
offering of payment of bribe is related to the business other than that of the
House. In 1974, the Lok Sabha considered the matter relating to offer or
payment of bribe in the import licences case wherein it was alleged that a
Member of Lok Sabha had taken bribe and forged signatures of the Members for
furthering the cause of certain applicants. The question of privilege was
disallowed since it was considered that the conduct of the Member, although
improper, was not related to the business of the House. But at the same time it
was held that as the allegation of bribery and forgery was very serious and
unbecoming of a Member of Parliament, he could be held guilty of lowering the
dignity of the House.
(See:
Kaul and Shakdher at pp. 254, 255)."
37. As
outlined earlier, the respondents have also contended that the power of a
legislature to punish for its own contempt should not be seen as incidental to
its' power of self-composition and that it should have a wider import than the
remedial power of preventing obstructions to legislative functions. It will be
useful to refer to the following extract from the respondents' written
submissions:
"...
Even if the House of Legislature has limited powers, such power is not only
restricted to ex facie contempts, but even acts committed outside the House.
It is
open to the Assembly to use its power for protective purposes, and the acts
that it can act upon are not only those that are committed in the House, but
upon anything that lowers the dignity of the House. Thus, the petitioners'
submission that the House only has the power to remove obstructions during its
proceedings cannot be accepted."
In
pursuance of this line of reasoning, the respondents have argued that the
appellant's actions have lowered the dignity of the house and the same amounts
to conduct unbecoming of a member of the House, even though such conduct had no
bearing on legislative functions. It was urged that the underlying motive
behind the expulsion was not merely that of punishment but also to remove a
member 55 who was seen as unfit to continue as a member of the legislature.
38. We
are unable to agree with this line of reasoning presented on behalf of the
respondents. Expressions such as `lowering the dignity of the house', `conduct
unbecoming of a member of the House' and `unfitness of a member' are
openly-worded and abstract grounds which if recognised, will trigger the
indiscriminate and disproportionate use of legislative privileges by incumbent
majorities to target their political opponents as well as dissidents. The
various grounds for disqualification of members of legislative assemblies
(MLAs) have been enumerated in Articles 190 and 191 of the Constitution. For
most circumstances, there is an elaborate machinery in place to decide
questions pertaining to the disqualification of members and the vacancy of
seats. However, it is for the purpose of tackling unforeseen and novel
impediments to legislative functioning that the `powers, privileges and
immunities' contemplated by Article 194(3) of the Constitution have not been
codified. In Raja Ram Pal's case (supra.) the majority decision of this Court
did recognise that the legislature's power to punish for its contempt could be
exercised to expel legislators for grounds other 56 than those prescribed in
the Constitution, but it was not the intention of this Court to prescribe an
untrammeled power. By laying down a clear set of guidelines for judicial review
over the exercise of parliamentary privileges, this Court had made its
intentions quite clear.
Accordingly,
we are of the view that the power of a legislative chamber to punish for its
own contempt should broadly coincide with the legislature's interest in
protecting the integrity of its functions. There can of course be some
exceptional circumstances where acts that take place outside the `four walls of
the house' could have the effect of distorting, obstructing or diluting the
integrity of legislative functions. An obvious example is that of legislators
accepting bribes in lieu of asking questions or voting on the floor of the
House. However, with respect to the facts before us, the respondents have
failed to demonstrate how the alleged misconduct on part of the appellant and
the petitioners could have a comparable effect. Using the route of legislative
privileges to recommend the appellant's expulsion in the present case is beyond
the legitimate exercise of the privilege power of the House.
Re:
Question II.
39. The
next aspect that merits our attention is whether it was proper for the Punjab
Vidhan Sabha to consider the alleged misconduct as a breach of privilege in spite
of the fact that it took place during the Vidhan Sabha's previous term. The
allegedly improper exemption of a plot of land (measuring 32.10 Acres) from the
Amritsar Improvement Scheme had been notified on 13-1-2006, during the 12th
term of the Punjab Vidhan Sabha. On 22-02-2006, a question pertaining to this
allegedly improper exemption was raised in the House and the same was discussed
on 22-02-2006, 28- 02-2006 and 1-3-2006 respectively. At this juncture it must
be clarified that there were separate allegations in the respondent's
submissions which suggest that the appellant had played a part in suppressing
some materials when questions had been asked about the allegedly improper
exemption. However, the said suppression of materials had been inquired into by
another Committee and there were no findings against the appellant.
40. As
mentioned earlier, the House was subsequently dissolved and a new regime was
voted to power in the elections held in February 2007. It was during the
present term of the House (i.e. the 13th term of the Punjab Vidhan Sabha) that
the allegedly improper exemption was made the 58 subject-matter of an inquiry
by a Special Committee which was constituted in pursuance of a resolution
passed by the House on 18-12-2007. The Special Committee presented its report
on the floor of the House on 3-9-2008, which in turn became the basis of the
impugned resolution of the Punjab Vidhan Sabha that was passed on 10-9-2008.
Before addressing the contentious issue, it is necessary to understand the
implications of the dissolution of a legislative chamber, since the Punjab
Vidhan Sabha had been dissolved and re-constituted during the period between
the operative dates, i.e. the date of notification of the allegedly improper
exemption of land from the Amritsar Improvement Scheme (13-1-2006) and the
constitution of the Special Committee to inquire into the said allegations of
misconduct (18-12-2007).
41. The
literal meaning of `dissolution' is listed in Black's Law Dictionary, 8th edn.
[(West Group) at p. 506] as `the act of bringing to an end; termination'. P.
Ramanatha Aiyar, Advanced Law Lexicon, 3rd edn., Vol. 2D-I, (Wadhwa & Co.,
2005) furnishes the following definition, at p. 1435:
"Dissolution
and prorogation.- Constitution of India, Art.107 (3), 174(2) (a) & (b),
196. Dissolution of 59 Parliament is invariably proceeded by prorogation, and
what is true about the result of prorogation, is, it is said a fortiori true
about the result of dissolution. Dissolution of Parliament is sometimes described
as "a civil death of Parliament". Ilbert in his work on `Parliament'
has observed that `prorogation' means the end of a Session (not of
parliament)'; and adds that "like dissolution it kills all bills which
have not yet been passed". He also describes dissolution as "an end
of Parliament (not merely of a session) by royal proclamation", and
observes that "it wipes the slate clean of uncompleted bills or other
proceedings".
The
effects of dissolution have also been discussed in the following manner [Cited
from: Kaul and Shakdher, Practice and Procedure of Parliament, 5th edn. (New
Delhi: Metropolitan Book Co. Pvt. Ltd., 2001) at pp. 191-193]:
EFFECTS
OF DISSOLUTION "Dissolution, as already stated, marks the end of the life
of a House and is followed by the constitution of a new House. One the House
has been dissolved, the dissolution is irrevocable. There is no power vested in
the president to cancel his order of dissolution and revive the previous House.
The consequences of dissolution are absolute and irrevocable. In Lok Sabha,
which alone is subject to dissolution under the Constitution, dissolution
"passes a sponge over the Parliamentary slate". All business pending
before it or any of its committees lapses on dissolution. No part of the
records of the dissolved House can be carried over and transcribed into the
records and registers of the new House. In short, dissolution draws the final
curtain upon the existing House.
Business
before a Committee: All business pending before Parliamentary Committees of Lok
Sabha lapse on dissolution of Lok Sabha. Committees themselves stand dissolved
on dissolution of a Lok Sabha. However, a Committee which is unable to complete
its work before the dissolution of a House may report to the house to that
effect, in which case any preliminary memorandum 60 or note that the committee
may have prepared or any evidence that it may have taken is made available to
the new Committee when appointed."
42.
Coming to judicial observations, the effect of dissolution of a House were
discussed by this Court in the Gujarat Assembly Election case, (2002) 8 SCC
237. V.N. Khare, J. (as His Lordship then was) had made the following
observations:
"40...
Dissolution ends the life of the legislature and brings an end to all business.
The entire chain of sittings and sessions gets broken and there is no next
session or the first sitting of the next session after the House itself has
ceased to exist. Dissolution of Legislative Assembly ends the representative
capacity of legislators and terminates the responsibility of the Cabinet to the
Members of the Lok Sabha or the Legislative Assembly, as the case may be."
Furthermore,
Pasayat, J. had explained:
"135.
Dissolution brings a legislative body to an end.
It
essentially terminates the life of such body and is followed by constitution of
a new body (a Legislative Assembly or a House of People, as the case may be).
Prorogation
on the other hand relates to termination of a session and thus precludes
another session, unless it coincides with the end of the legislative term. The
basic difference is that prorogation unlike dissolution does not affect a
legislative body's life which may constitute from session to session, until
brought to an end by dissolution. Dissolution draws the final curtain upon the
House. Once the House is 61 dissolved it becomes irrevocable. There is no power
to recall the order of dissolution and/ or revive the previous House.
Consequently effect of dissolution is absolute and irrevocable. It has been
described by some learned authors that dissolution "passes a sponge over
the parliamentary slate". The effect of dissolution is in essence
termination of current business of the legislative body, its sittings and
sessions. There is a cessation of chain of sessions, sittings for a dissolved
legislative body and there cannot be any next session or its first sitting.
With the election of a legislative body a new chapter comes into operation.
Till that is done the sine qua non of responsible government i.e.
accountability is non- existent. Consequentially, the time stipulation is
non-existent. Any other interpretation would render use of word "its"
in relation to "last sitting in one session" and "first sitting
in the next session"
without
significance."
43. In
Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694, Gajendragadkar J.
(as His Lordship then was) had reflected on the effects of the dissolution of
the House.
The
context in that case was that a Legislative Assembly had passed a bill and
later the President had sent the bill back for reconsideration by the successor
assembly. The question of whether the successor assembly needed to consider the
bill afresh and pass it again was answered in the affirmative:
"6.
... The duration of the Legislative Assembly is prescribed by Article 172 (1),
and normally at the end of five years the life of the Assembly would come to an
end. Its life could come to an end before the expiration of the said period of
the five years if during the said five years the President acts under 62
Article 356. In any case there is no continuity in the personality of the
Assembly where the life of one Assembly comes to an end and another Assembly is
in due course elected. If that be so, a bill passed by one Assembly cannot, on
well recognized principles of democratic government be brought back to the
successor Assembly as though a change in the personality of the Assembly had
not taken place. The scheme of the Constitution in regard to the duration of
the life of State Legislative Assembly, it is urged, supports the argument that
with the dissolution of the Assembly all business pending before the Assembly
at the date of dissolution must lapse. This position would be consonant with
the well recognized principles of democratic rule. The Assembly derives its
sovereign power to legislate essentially because it represents the will of the
citizens of the State, and when one Assembly has been dissolved and another has
been elected in its place, the successor Assembly cannot be required to carry
on with the business pending before its predecessor, because that would assume
continuity of personality which in the eyes of the Constitution does not exist.
Therefore, sending the bill back to the successor Assembly with the message of
the President would be inconsistent with the basic principles of
democracy."
In
Sub-Committee on Judicial Accountability v. Union of India , (1991) 4 SCC 699,
G.N. Ray, J. had discussed the effect of dissolution of the Lok Sabha:
"51.
Adverting to the effect of dissolution on other business such as motions,
resolutions etc. the learned authors say:
"All
other business pending in Lok Sabha e.g. motions, amendments, supplementary
demands for grants etc., at whatever stage, lapses upon dissolution, as also
the petitions presented to the House which stand referred to the Committee on
Petitions."
44. On
the basis of the authorities cited above, it is evident that ordinarily
legislative business does not survive the dissolution of the House. The
exception to this norm is covered by the `doctrine of lapse' wherein the
successor House can choose to take up a pending motion or any order of business
after the re-constitution of the House. However, this exception is not
applicable in the facts of the present case. At the time of the reconstitution
of the Punjab Vidhan Sabha following the State elections in February 2007,
there was no pending motion, report or any other order of business which had a
connection with the allegedly improper exemption of land.
It was
much later, i.e. on 18-12-2007 that a Special Committee was constituted to
inquire into the same. Hence, in this case the Special Committee proceeded to
enquire into the executive acts of the appellants and petitioners which had
taken place during the previous term of the Punjab Vidhan Sabha. It is quite
untenable to allow the exercise of legislative privileges to punish past
executive acts especially when there was no pending motion, report or any other
order of business that was relatable to the said executive acts at the time of
the re- constitution of the House.
45. While
the legislature is free to inquire into acts and events that have taken place
in the past, the same is ordinarily done in the nature of fact-finding to
improve the quality of law-making. Legislative oversight over executive actions
is an important facet of parliamentary democracy and such oversight can extend
to executive decisions taken in the past. However, it is altogether another
matter if privileges are purportedly exercised to punish those who have held
executive office in the past. It is quite inconceivable as to how the allegedly
improper exemption of land (notified on 13-1-2006) had the effect of
obstructing the legislative business in the 13th term of the Punjab Vidhan Sabha.
Hence, it is our considered view in respect of the facts in the present case,
that it was improper for the 13th Punjab Vidhan Sabha to claim a breach of
privileges on account of the alleged misconduct which actually took place
during the 12th term of the Vidhan Sabha. However, our view should not be
mistaken for a general proposition since it is within our imagination that in
some circumstances the acts that have taken place during the previous terms of
a Legislature could actually have the effect of distorting, obstructing or
diluting the integrity of legislative business in the 65 present term.
Evidently, no such consequence or tendency has been demonstrated in the present
case.
Re:
Question III.
46. As
noted in the survey of facts at the beginning of this opinion, the allegedly
improper exemption of land from the Amritsar Improvement Scheme is the
subject-matter of disputes that are pending before the High Court of Punjab and
Haryana. Admittedly, these proceedings had been instituted soon after the
notification of the said exemption (dated 13-1-2006) and the fact of their
pendency was well known at the time of the constitution of the Special
Committee by the Punjab Vidhan Sabha on 18-12-2007. This begs the question as
to whether it was proper for the Punjab Vidhan Sabha to inquire into
subject-matter which was already in question before a judicial forum.
47. The
norms to be followed by a legislature in respect of sub judice matters have
been discussed in the following words [Cited from: Griffith and Ryle,
Parliament, Functions and Procedure (2003), Chapter 6 at Para 6-075):
66
"A more significant reason for not allowing a notice of motion is if the
matter is sub judice (awaiting decision in the courts); the same rule applies
to debate and questions. The sub judice rule does not, however, apply to
legislative business or where a ministerial decision is in question (e.g. in an
application for judicial review). It applies only to cases in UK courts, not
ones in courts elsewhere, even if they concern UK matters (e.g. the European
Court of Human Rights). The Speaker has discretion to waive the rule and would
normally do so when the case in question concerned issues of national
importance such as the economy, public order or essential services.
This long
standing practice has been confirmed by resolutions of the House. Cases which
are active in a criminal court in the United Kingdom must not be referred to;
this applies from the moment charges are made until the verdict is given. The
same applies to civil actions once arrangements are made for a hearing. Cases
which have been decided can become sub judice again if one party applies for
leave to appeal.
Under
this rule, which comes into operation in relation to some half-dozen cases a
session, motions (or questions) may not be tabled until the case is decided. If
a motion has been tabled before the matter became sub judice it is taken off
the Order Paper until the case ceases to be sub judice."
48. In
fact, the relevant rules of the Rules of Business and Conduct of the Punjab
Vidhan Sabha themselves incorporate these norms. Reference may be made to the
language of Rule 39(10), 50, 93(2)(iv) and 150(d) which lay down the following:
"39.
In order that a question may be admissible it shall satisfy the following
conditions, namely-:
(10) It
shall not ask for information on any matter which is under adjudication by a
court of law having jurisdiction in any part of India;
... 50.
The right to move the adjournment of the business of the Vidhan Sabha
(Assembly) for the purpose of discussing a definite matter of urgent public
importance shall be subject to the following restrictions, namely -:
**** (ix)
the motion shall not deal with a matter on which a resolution could not be
moved;
**** (xi)
the motion shall not deal with any matter which is under adjudication by a
Court of law;
... 93.
(1) The matter of every speech shall be strictly relevant to the matter before
the House.
(2) A
member while speaking shall not- **** (iv) refer to a matter of fact on which a
judicial decision is pending;
.. 150.
In order that a resolution may be admissible, it shall satisfy the following
conditions, namely- **** (d) it shall not relate to any matter which is under
adjudication by a Court of law having jurisdiction in any part of India."
49. The
above-mentioned rules which govern the business and conduct of the Punjab
Vidhan Sabha are quite categorical in laying down a prohibition on the taking
up of any matter which is pending adjudication before a court of law.
Analogues
provisions control the business and conduct of the Lok Sabha [See Rules 173,
188 and 352 of the Rules of Business and Conduct of the Lok Sabha]. While
Articles 68 122(1) and 212(1) of the Constitution prohibit judicial scrutiny
over questions relating to compliance with these rules, our attention has been
drawn to the fact that the Punjab Vidhan Sabha proceeded to inquire into the
allegedly improper exemption of land from the Amritsar Improvement Scheme, even
though the same had been questioned before the High Court of Punjab and
Haryana.
50.
Subhash C. Kashyap [in Parliamentary Procedure- Law Privileges, Practice &
Precedents Vol. 1, (New Delhi:
Universal
Law Publishing Co. Pvt. Ltd., 2000)] has described a prominent example where
the Speaker of the Lok Sabha had disallowed discussion on subject-matter that
was pending before the courts. The following extract also touches on arguments
for allowing the legislature to discuss sub judice matters in exceptional cases
(at pp. 1225- 1226):
(iii) The
following motion tabled by a member (Madhu Limaye) was included in the List of
Business for 7 May 1968:
That this
House disapproves of the statements made by Shri Ranganathan, Under Secy.,
Ministry Of External Affairs, on behalf of the Government of India in his
affidavit in opposition on the 21 Apr. 1968, before the Delhi High Court which
are contrary to the statements made by the Minister of Home Affairs in the
House on the 28 Feb. 1968 in regard to implementation of Kutch Award.
69 When
Limaye was called to move his motion, a point of order was raised by a member
(Narayan Rao) and Law Minister (P. Govinda Menon) that discussion on affidavit
would mean discussing a sub judice matter. The Speaker reserved his ruling. On
9 May 1968, the Speaker ruled inter alia as follows:
The rule
on whether a motion which relates to a matter which is under adjudication by a
court of law should be admitted or discussed in the House has to be interpreted
strictly.
While on
the one hand the Chair has to ensure that no discussion in the House should
prejudice the course of justice, the Chair has also to see that the House is
not debarred from discussing an urgent matter of public importance on the
ground that a similar, allied or linked matter is before a court of law. The
test of sub judice in my opinion should be that the matter sought to be raised
in the House is substantially identical with the one which a court of law has
to adjudicate. Further, in case the Chair holds that a matter is sub judice the
effect of this ruling is that the discussion on the matter is postponed till
the judgment of the court is delivered. The bar of sub judice will not apply
thereafter, unless the matter becomes sub judice again on an appeal to a higher
court. Applying these two tests to the present notice of motion by Shri Limaye,
I consider that in view of the statement by the Law Minister, that `the
question that the affidavit filed by the Under Secretary is slightly at
variance with what the Home Minister has stated has been raised in the court
and is under adjudication by the court' the very matter which is sought to be
raised by the member is awaiting adjudication by the court of law.
Hence I
consider that discussion on the notice of motion should be postponed until the
court has delivered its judgment. I am however, clear that the matter is of
public 70 importance which should be discussed in the House and its importance
will not be lost if the House awaits until the Court has adjudicated in the
matter. [LS Deb.
6.5.1968,
cc 2198- 2203; 7.5.1968, cc. 2649- 65; 9.5.1968, cc. 3149- 56]"
51. It is
a settled principle that ordinarily the content of legislative proceedings
should not touch on sub judice matters. As indicated in the extract quoted
above, the rationale for this norm is that legislative debate or scrutiny over
matters pending for adjudication could unduly prejudice the rights of the
litigants. In the case at hand, the allegedly improper exemption of land
(measuring 32.10 acres) from the Amritsar Improvement Scheme had already been
questioned before the High Court of Punjab and Haryana. Thus, the Punjab Vidhan
Sabha ought not to have constituted a committee to inquire into the same.
CONCERNS
ABOUT INTRUSION INTO THE EXECUTIVE AND JUDICIAL DOMAIN
52. The
doctrine of separation of powers is an inseparable part of the evolution of
parliamentary democracy itself.
Renowned
French philosopher Montesquieu had drawn the attention of political theorists
to the dangers inherent in the concentration of legislative, executive and
judicial 71 powers in one authority and stressed on the necessity of checks and
balances in constitutional governance. Our institutions of governance have been
intentionally founded on the principle of separation of powers and the
Constitution does not give unfettered power to any organ.
All the
three principal organs are expected to work in harmony and in consonance with
the spirit and essence of the Constitution. It is clear that a legislative body
is not entrusted with the power of adjudicating a case once an appropriate
forum is in existence under the constitutional scheme. It would be pertinent to
cite the following observations made by M.H. Beg J. (as His Lordship then was)
in Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1:
"392...One
of these basic principles seems to me to be that, just as courts are not
constitutionally competent to legislate under the guise of interpretation, so
also neither our Parliament nor any State Legislature, in the purported
exercise of any kind of law- making power, perform an essentially judicial
function by virtually withdrawing a particular case, pending in any court, and
taking upon itself the duty to decide it by an application of law or its own
standards to the facts of that case. This power must at least be first
constitutionally taken away from the court concerned and vested in another
authority before it can be lawfully exercised by that other authority. It is
not a necessary or even a natural incident of a "constituent power".
As Hans Kelsen points out, in his "General Theory of Law and the
State" (see p.143), while creation and annulment of all general norms,
whether basic or not so basic, is essentially a legislative function their
interpretation and application to findings reached, 72 after a correct
ascertainment of facts involved in an individual case, by employing the
judicial technique, is really a judicial function. Neither of the three
constitutionally separate organs of State can, according to the basic scheme of
our Constitution today, leap outside the boundaries of its own constitutionally
assigned sphere or orbit of authority into that of the other. This is the
logical meaning of the principle of supremacy of the Constitution."
53. The
impugned resolution (dated 10-9-2008) passed by the Punjab Vidhan Sabha
contains directions as to how the investigation into the appellant's and
petitioners' alleged wrongdoing should be conducted. The resolution directs the
filing of First Information Reports (FIRs) and custodial interrogation in
addition to directing the Vigilance Department, Punjab to find out where the
appellant and the others have stored their `ill gotten wealth' and further
directs the Vigilance Department to report back to the Speaker of the Punjab Vidhan
Sabha. These functions are within the domain of the executive. It is up to the
investigating agencies themselves to decide how to proceed with the
investigation in a particular case. The role of the legislature in this regard
can at best be recommendatory and the Speaker of a Legislature may not assume
the responsibility of monitoring an ongoing investigation. A determination of
guilt or innocence by way 73 of fact-finding is a role properly reserved for
the trial judge. The only exception to this principle is when the impugned acts
have the effect of distorting, obstructing or threatening the integrity of
legislative proceedings or are likely to do the same, thereby warranting the
exercise of privileges. As we have already noted above, there was an obvious
jurisdictional error on part of the Punjab Vidhan Sabha in the present case.
54. A
decision of the United States Supreme Court which raised similar concerns was
that of Kilbourn v. Thompson, 103 US 168 (1881). In that case, the House of
Representatives of the United States Congress had appointed a Special Committee
to investigate into activities related to a `real estate pool', since it had
attracted investments from one Jay Cook & Co. who was a
debtor-in-bankruptcy to the Government of the United States. The Special
Committee was set up and it had served a sub poena to Kilbourn, requiring the
latter to present himself before the Special Committee and to answer questions
and produce documents.
Kilbourn
appeared but he refused to cooperate with the Committee's proceedings. The
House of Representatives passed a resolution directing that Kilbourn be
arrested and placed under custody until such time as he purged himself 74 of
the contempt and communicated to the House his willingness to submit to the
jurisdiction of the Special Committee. The matter reached the Supreme Court of
the United States by way of a writ of habeas corpus filed by Kilbourn. The
relevant observations by Miller, J. are produced as follows:
"In
looking to the preamble and resolution under which the committee acted, before
which Kilbourne refused to testify, we are of the opinion that the House of
Representatives not only exceeded the limit of its own authority, but assumed a
power which could only be properly exercised by another branch of the
government, because it was, in its nature, clearly judicial.
The
Constitution declares that the judicial power of the United States shall be
vested in one Supreme Court and in such inferior courts as the Congress may
from time to time ordain and establish. If what we have said of the division of
the powers of the government among the three departments be sound, this is
equivalent to a declaration that no judicial power is vested in the Congress or
either branch of it, save in cases specifically enumerated to which we have
referred. If the investigation which the committee was directed to make was
judicial in its character, and could only be properly and successfully made by
a court of justice, and if it related to a matter wherein relief or redress
could be had only by a judicial proceeding, we do not, after what has been
said, deem it necessary to discuss the proposition that the power attempted to
be exercised was one confided by the Constitution to the judicial, and not to the
legislative, department of the government. We think it equally clear that the
power asserted is judicial, and not legislative. (103 US 168, 192- 193) **** 75
How could the House of Representatives know, until it had been fairly tried,
that the courts were powerless to redress the creditors of Jay Cook & Co.?
The matter was still pending in a court, and what right had the Congress of the
United States to interfere with a suit pending in a court of competent
jurisdiction? Again, what inadequacy of power existed in the court, or, as the
preamble assumes, in all courts, to give redress which could lawfully be
supplied by an investigation by a committee of one House of Congress, or by any
act or resolution of Congress on the subject? The case being one of a judicial
nature, for which the power of the courts usually afford the only remedy, it
may well be supposed that those powers were more appropriate and more efficient
in said of such relief than the powers which belong to a body whose function is
exclusively legislative. If the settlement to which the preamble refers as the
principal reason why the courts are rendered powerless was obtained by fraud,
or was without authority, or for any conceivable reason could be set aside or
avoided, it should be done by some appropriate proceeding in the court which
had the whole matter before it, and which had all the power in that case proper
to be entrusted to any body, and not by Congress or by any power to be
conferred on a committee of one of the two Houses."
(103 US 168,
194) The observations cited above are self-explanatory and we echo the concerns
about the overreach into the judicial domain in the fact-situation before us.
CONCLUSION
55. In
the light of the preceding discussion we have arrived at the following conclusions:
76 (i) If
there were any irregularities committed by the appellant and the petitioners in
relation to the exemption of land (notified on 13-1-2006) from the Amritsar
Improvement Scheme, the proper course of action on part of the State Government
should have been to move the criminal law machinery with the filing of a
complaint followed by investigation as contemplated under the Code of Criminal
Procedure.
It is our
considered view that the Punjab Vidhan Sabha exceeded its powers by expelling
the appellant on the ground of a breach of privilege when there existed none.
The allegedly improper exemption of land was an executive act attributable to
the appellant and it did not distort, obstruct or threaten the integrity of
legislative proceedings in any manner. Hence, the exercise of legislative
privileges under Article 194(3) of the Constitution was not proper in the
present case.
(ii)
Furthermore, the allegedly improper exemption of land took place during the
12th term of the Punjab Vidhan Sabha, whereas the constitution of the Special
Committee to inquire into the same took place during the 13th term. It was not
proper for the Assembly to inquire into actions that took place 77 during its
previous term, especially when there was no relatable business that had lapsed
from the previous term. If we were to permit the legislature to exercise
privileges for acting against members for their executive acts during previous
terms, the Courts are likely to be flooded with cases involving political
rivalries. One can conceive that whenever there is a change of regime, the
fresh incumbents would readily fall back on the device of legislative
privileges to expel their political opponents as well as dissidents. Such a
scenario would frustrate some of the basic objectives of a parliamentary
democracy.
(iii)When
it was well known that the allegedly improper exemption of land from the
Amritsar Improvement Scheme was the subject-matter of proceedings instituted
before the High Court of Punjab and Haryana, the Punjab Vidhan Sabha should
have refrained from dealing with the same subject-matter.
56. We
accordingly declare that the resolution passed by the Punjab Vidhan Sabha on
10-9-2008, directing the expulsion of the appellant for the remainder of the
13th 78 term of the Vidhan Sabha is constitutionally invalid.
Hence, we
direct the restoration of the appellant's membership in the Punjab Vidhan
Sabha. However, nothing in this judgment should act as a hurdle against the
investigation, if any, into the alleged role of the appellant and the
petitioners in the improper exemption of land from the Amritsar Improvement
Scheme that was notified on 13-1-2006. To repeat a clichi, the law will take
its own course.
57. This
appeal and the connected petitions are disposed off accordingly, however with
no order as to costs.
......................................CJI (K.G. BALAKRISHNAN)
........................................J. (R.V. RAVEENDRAN)
........................................J. (P. SATHASIVAM)
........................................J. (J.M. PANCHAL)
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