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LB-301-Constitutional Law-I |2022
(Y.K. Sabharwal, C.J., K.G. Balakrishnan, C.K. Thakker, R.V. Raveendran and D.K. Jain, JJ.)
Y. K. SABHARWAL, C.J.I. (for himself and on behalf of K.B. Balakrishnan, D.K. Jain,JJ.):-
2. The unfortunate background in which the aforesaid questions have arisen is the allegation that the Members of Parliament (MPs) indulged in unethical and corrupt practices of taking monetary consideration in relation to their functions as MPs.
3. A private channel had telecast a programme on 12th December, 2005 depicting 10 MPs of House of People (LokSabha) and one of Council of States (RajyaSabha) accepting money,directly or through middleman, as consideration for raising certain questions in the House or for otherwise espousing certain causes for those offering the lucre. This led to extensive publicity in media. The Presiding Officers of each Houses of Parliament instituted inquiries through separate Committees. Another private channel telecast a programme on 19th December, 2005 alleging improper conduct of another MP of RajyaSabha in relation to the implementation of Member of Parliament Local Area Development Scheme (‘MPLAD’ Scheme for short). This incident wasalso referred to a Committee.
4. The Report of the inquiry concluded, inter alia, that the evidence against the 10 members of LokSabha was incriminate; the plea that the video footages were doctored/morphed/edited had no merit; there was no valid reason for the Committee to doubt the authenticity of the video footage; the allegations of acceptance of money by the said 10 members had been established which acts of acceptance of money had a direct connection with the work of Parliament and constituted such conduct on their part as was unbecoming of Members of Parliament and also unethical and calling for strict action. The majority report also recorded the view that in case of misconduct, or contempt, committed by its members, the House can impose punishment in the nature of admonition, reprimand, withdrawal from the House, suspension from service of House, imprisonment, and expulsion from the House. The majority Report recorded its deep distress over acceptance of money by MPs for raising questions in the House and found that it had eroded the credibility of Parliament as an institution and a pillar of democracy in this country and recommended expulsion of the 10 members from the membership of LokSabha finding that their continuance as Members of the House would be untenable. One member, however, recorded a note of dissent for the reasons that in his understanding of the procedure as established by law, no member could be expelled except for breach of privileges of the House and that the matter must, therefore, be dealt with according to the rules of the Privileges Committee.
5. On the Report of the Inquiry Committee being laid on the table of the House, a Motion was adopted by LokSabha resolving to expel the 10 members from the membership of LokSabha, accepting the finding as contained in the Report of the Committee that the conduct of the
140 Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors.,
members was unethical and unbecoming of the Members of Parliament and their continuance as MPs is untenable. On the same day i.e. 23rd December, 2005, the LokSabha Secretariat issued the impugned notification notifying the expulsion of those MPs with effect from same date. In the Writ Petitions/Transfer Cases, the expelled MPs have challenged the constitutional validity of their respective expulsions.
6. Almost a similar process was undertaken by the RajyaSabha in respect of its Member. The matter was referred to the Ethics Committee of the RajyaSabha. As per the majority Report, the Committee found that the Member had accepted money for tabling question in RajyaSabha and the plea taken by him in defence was untenable in the light of evidence before it. However, one Member while agreeing with other Members of the Committee as to the factual finding expressed opinion that in view, amongst others, of the divergent opinion regarding the law on the subject in judgments of different High Courts, to which confusion was added by the rules of procedure inasmuch as Rule 297(d) would not provide for expulsion as one of the punishments, there was a need for clarity to rule out any margin of error and thus there was a necessity to seek opinion of this Court under Article 143(1) of the Constitution.
7. The Report of the Ethics Committee was adopted by RajyaSabha concurring with the recommendation of expulsion and on the same date i.e. 23rd December, 2005, a notification notifying expulsion of the Member from membership of RajyaSabha with immediate effect was issued.
8. The case of petitioner in Writ Petition (C) No. 129/2006 arises out of different, though similar set of circumstances. In this case, the telecast of the programme alleged improper conduct in implementation of MPLAD Scheme. The programme was telecast on 19th December, 2005. The Report of the Ethics Committee found that after viewing the unedited footage, the Committee was of the view that it was an open and shut case as Member had unabashedly and in a professional manner demanded commission for helping the so-called NGO to set up projects in his home state/district and to recommend works under MPLAD Scheme. The Committee came to the conclusion that the conduct of the Member amounts to violations of Code of Conduct forMembers of RajyaSabha and it is immaterial whether any money changed hands or not or whether any commission was actually paid or not. It found that the Member has not onlycommitted gross misdemeanor but by his conduct he also impaired the dignity of the House andits Member and acted in a manner which is inconsistent with the standards that the House is entitled to expect of its Members. Since the conduct of the Member has brought the House and itsMember into disrepute, the Committee expressed the view that the Member has forfeited his rightto continue as Member and, therefore, recommended his expulsion from the membership of the House. The RajyaSabha accepted the recommendations of the Ethics Committee and Motion agreeing with the recommendation was adopted on 21st March, 2006 thereby expelling the Member from the membership bringing to an end his membership. On the same date notification was issued by RajyaSabha Secretariat.
Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors., 141 9. The two Members of RajyaSabha have also challenged the constitutional validity of their
expulsions.
Article 105 reads as under :
“105. Powers, privileges, etc. of the Houses of Parliament and of the members and committees thereof.- (1) Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of each House of Parliament,and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty- fourth Amendment) Act 1978.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.”
10. There is identical provision as contained in Article 194 relating to powers, privileges and immunities of State legislature. Article 194 reads as under :-
“194. Powers, privileges, etc., of the House of Legislatures and of the members and committees thereof.- (1) Subject to the provisions of this Constitution and to the rules and standing orders 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.
(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 thoseof 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
142 Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors., House of the Legislature of a State or any committee thereof as they apply in relation to members
of that Legislature.”
11. Article 105(3) underwent a change in terms of Section 15 of the Constitution (44th Amendment) Act, 1978. In Article 105(3), the words “shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees at the commencement of this Constitution” were substituted by the words “shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (fourty- fourth Amendment) Act, 1978”. The similar changes were also effected in Article 194(3) of the Constitution. These amendments have no relevance for determining the interpretation of Article 105(3) since the amendments clearly seem to be only cosmetic for the purpose of omitting the reference of the House of Commons in these articles.
36. Having given our anxious considerations to the myriad issues that have been raised on both sides of the divide, we have found that the primordial questions that need to be addressed by the Court can be formulated as under :-
1. Does this Court, within the constitutional scheme, have the jurisdiction to decide the content and scope of powers, privileges and immunities of the Legislatures and its members?
2. Ifthefirstquestionisansweredintheaffirmative,canitbefoundthatthepowersandprivileges of the Legislatures in India, in particular with reference to Article 105, include the power of expulsion of their members?
3. In the event of such power of expulsion being found, does this Court have the jurisdiction to interfere in the exercise of the said power or privilege conferred on the Parliament and its members or Committees and, if so, is this jurisdiction circumscribed by certain limits?
37. In our approach to these issues of great importance, we have followed the advice of Thomas Huxley in the following words :-“It is not who is right, but what is right, that is of importance” and we must -“learn what is true in order to do what is right”.
42. Fortunately, the subject at hand is not a virgin territory. There have been occasions in the past for this court to go into these issues, though in somewhat different fact situations. Similarly, we have the benefit of opinion on these questions, expressed by at least three High Courts, though that happens to be a divided opinion.
43. As can be seen from the language employed in Article 105, the Parliament is empowered to define, by law, the powers, privileges and immunities of each House and of their Members and Committees in respects other than those specified in the Constitutional provisions. Though some part of the arguments advanced on behalf of the petitioners did try to refer to certain statutory provisions, for example, provisions contained in Sections 8 to 11 of the Representation of the People Act, 1951, as referable to the enabling power given to the Parliament in the first part of Article 105(3) but for present purposes, we would assume that Parliament has not yet exercised the said enabling power in as much as there is no law enacted till date that can be referred as
Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors., 143
cataloging the powers, privileges and immunities of each House of Parliament and of their members and committees. This consequence leads to continuity of the life of the second part of Article 105(3) in as much as that part of the provision was designed to come to an end as soon as the Parliament defined by law its powers, privileges and immunities. Therefore, powers, privileges and immunities not having been defined, the question is what are those powers which were enjoyed by House of Commons at the commencement of our Constitution as that will determine the powers, privileges and immunities of both Houses of Indian Parliament.
51. The learned counsel would then refer to the law that has been evolved in India, the case of M.S.M. Sharma v. Sri Krishna Sinha [1959 Supp (1) SCR 806], hereinafter referred to as case of Pandit Sharma (I), being perhaps the first in a series of such cases on the subject.
52.Pandit Sharma, the petitioner in that case was” editor of an English Daily Newspaper “Searchlight” of Patna. He invitedthe wrath of the legislative assembly of Bihar by publishing extracts from proceedings of the legislative assembly including certain parts which had been ordered to be expunged by the Speaker. In this context, the Speaker had referred the matter to the Privileges Committee of the assembly which in turn issued a show cause notice to him. Pandit Sharma brought writ petition in this court under Article 32 of the Constitution of India alleging that the proceedings initiated by the legislative assembly had violated his fundamental right of speech and expression under Article 19 (1) (a) as also the fundamental right of protection of his personal liberty under Article 21. The case was decided by a Constitution Bench (five Judges), with main focus on two principal points; namely, the availability of a privilege under Article 194(3) of the Constitution to the House of a legislature in India to prohibit entirely the publicationof the publicly seen and heard proceedings that took place in the House or even to prohibit the publication of such part of the proceedings as had been directed to be expunged and as to whetherthe privilege of the legislative chamber under Article 194(3) prevailed over the fundamental right of a citizen under Article 19 (1) (a). Noticeably, no specific objection as to the jurisdiction of the court in examining the issue of existence and availability of the particular privilege was raised at any stage.
54. The case of Pandit Sharma did not end there. Subsequently, the legislative assembly of Bihar came to be prorogued several times and the committee of privileges was also reconstituted. This led to a fresh notice being issued to Pandit Sharma in the wake of which he brought another writ petition under Article 32 of the Constitution, substantially raising the same questions and contentions as had been agitated in the earlier proceedings by him before this court. This writ petition was dismissed by the Constitution Bench (eight Judges). The judgment is reported as M.S.M. Sharma v. Shree Krishna Sinha [(1961) 1 SCR 96], hereinafter referred to as case of Pandit Sharma (II).
56. By far, the advisory opinion given by a Constitution Bench comprising of seven Judges of this court in UP Assembly case is the most elaborate discourse on the subject of powers,privileges and immunities of the legislatures under the Constitution of India. The matter had arisen out of a Reference by the President of India under Article 143(1) of the Constitution
144 Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors.,
seeking opinion of this court on certain issues, the genesis of which was traceable to certain unfortunate developments concerning the legislative assembly of the State of Uttar Pradesh and the Lucknow Bench of the High Court at Allahabad. The legislative assembly of Uttar Pradesh had committed one Keshav Singh, who was not one of its members, to prison for its contempt. The warrant of committal did not contain the facts constituting the alleged contempt. Keshav Singh moved a petition, inter alia, under Article 226 of the Constitution through his advocate challenging his committal as being in breach of his fundamental rights. A Division Bench of the High Court sitting at Lucknow gave notice to the Government counsel and on the appointed day proceeded to hear the application for bail. At that stage, the Government Counsel did not appear. The Division Bench heard the application and ordered release of Keshav Singh on interim bail pending decision on his writ petition. The legislative assembly found that Keshav Singh and his advocate in moving the High Court and the two Judges of the High Court in entertaining the petit’tion and granting bail had committed contempt of the legislative assembly. The assembly passeda resolution that all of them, including the, two High Court Judges, be produced before it in custody. The High Court Judges and the advocate in question thereupon filed writ petitions beforethe High. Court at Allahabad. A Full Bench of the High Court admitted the writ petitions and ordered the stay of execution of the assembly’s resolution against them. Subsequently, the legislative assembly passed a clarificatory resolution modifying its earlier stand and asking the Judges and the advocate to appear before the House and offer their explanation. It was againstthis backdrop that the President made a reference under Article 143(1) of the Constitution seekingopinion mainly as to the Constitutional relationship between the High Court and the State Legislature in matters of the powers and privileges of the latter. The contours of the main controversy were summarized by this court at page 439 in the report in the following words :-
“27. …………. Is the House the sole and exclusive judge of the issue as to whether its contempt has been committed where the alleged contempt has taken place outside the four walls of the House? Is the House the sole and exclusive judge of the punishment which should be imposed on the party whom it has found to be guilty of its contempt? And, if in enforcement of its decision the House issues a general or unspeaking warrant, is the High Court entitled to entertain a habeas corpus petition challenging the validity of the detention of the person sentenced by the House?. “
57. It is clear from the opinion rendered in UP Assembly case that the State legislature, though participating in the hearing, expressed reservations as to the jurisdiction of this court in any manner in respect of the area of controversy covered by the questions, insisting that “the question about the existence and extent of the powers, privileges and immunities of the House, as well as the question about the exercise of the powers and privileges were entirely and exclusively within the jurisdiction of the House; and whatever this Court may say will not preclude the House from deciding for itself the points referred to us under this Reference”, referring in this context, inter
Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors., 145 alia to the fact that there was no lis before the court which was therefore not exercising “its judicial
function” while dealing with a reference under Article 143 (1).
61. The case State of Karnataka v. Union of India [(1977) 4 SCC 608] decided by a Constitution Bench (seven Judges) of this court finally clinched the issue beyond the pale of any doubts. The case had arisen against the backdrop of appointment by the Central Government of a Commission of Inquiry against the then Chief Minister of Karnataka. The State of Karnataka filed a suit in this court, inter alia, for a declaration that the appointment of the Commission was illegal, in as much as the terms of reference of the Inquiry Commission covered matters falling exclusively within the sphere of the State’s legislative and executive power on which basis, amongst others, it was contended that the federal structure implicit and accepted as an inviolable basic feature of the Constitution was being abridged. Some arguments in the context of this controversy were founded on the powers and privileges of the legislature of the State under Article 194 of the Constitution. Examining these arguments, Beg, C.J., in his judgment observed as under
“63. Now, what learned Counsel for the plaintiff seemed to suggest was that Ministers, answerable to a Legislature were governed by a separate law which exempted them from liabilities under the ordinary law. This was never the Law in England. And, it is not so here. Our Constitution leaves no scope for such arguments, based on a confusion concerning the “powers” and “privileges” of the House of Commons mentioned in Articles 105(3) and 194(3). Our Constitution vests only legislative power in Parliament as well as in the State Legislatures. A House of Parliament or State Legislature cannot try anyone or any case directly, as a Court of Justice can, but it can proceed quasi-judicially in cases of contempts of its authority and take up motions concerning its “privileges” and “immunities” because. in doing so, it only seeks removal of obstructions to the due performance of its legislative functions. But, if any question ofjurisdiction arises as to whether a matter falls here or not, it has to be decided by the ordinary courts in appropriate proceedings.”
62. In view of the above clear enunciation of law by Constitutional Benches of this court in case after case, there ought not be any doubt left that whenever Parliament, or for that matter any State legislature, claims any power or privilege in terms of the provisions contained in Article 105(3), or Article 194(3) as the case may be, it is the court which has the authority and the jurisdiction to examine, on grievance being brought before it, to find out if the particular power or privilege that has been claimed or asserted by the legislature is one that was contemplated by the said constitutional provisions or, to put it simply, if it was such a power or privilege as can be said to have been vested in the House of Commons of the Parliament of United Kingdom as on the date of commencement of the Constitution of India so as to become available to the Indian legislatures.
64. The term ‘privilege in law’ is defined as immunity or an exemption from some duty, burden, attendance or liability conferred by special grant in derogation of common right. The term is derived from an expression ‘privilegium’ which means a law specially passed in favour of or against a particular person.
146 Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors.,
65. May, in his “Parliamentary Practice”, has defined parliamentary privilege as “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 of individuals”. Thus, privilege, though not part of the law of the land, is to a certain extent an exemption from the ordinary law.
70. May [23rd edn., pp.78, 79, 83, 89, 90] describes the historical development of privileges as follows :-
“At the commencement of every Parliament it has been the custom for the Speaker, in the name, and on behalf of the Commons, to lay claim by humble petition to their ancient and undoubted rights and privileges; particularly to freedom of speech in debate, freedom from arrest, freedom of access to Her Majesty whenever occasion shall require; and that the most favourable construction should be placed upon all their proceedings……
Freedom of Speech – The first claim in the Speaker’s petition is for freedom of speech in debate. By the latter part of the fifteenth century, the Commons of England seems to have enjoyed an undefined right to freedom of speech, as a matter or tradition rather than by virtue of a privilege sought and obtained……
FREEDOM FROM ARREST – The second of the Speaker’s customary petitions on behalf of the Commons at the beginning of a Parliament is for freedom from arrest. The development of this privilege is in some ways linked to that of other privileges. Arrest was frequently the consequence of the unsuccessful assertion of freedom of speech, for example…….
FREEDOM OF ACCESS – The third of the Speaker’s petitions is for freedom of access to Her Majesty whenever occasion shall require. This claim is medieval (probably fourteenth century) in origin, and in an earlier form seems to have been sought in respect of the Speaker himself and to have encompassed also access to the Upper House……
FAVOURABLE CONSTRUCTION – The final petition which the speaker makes is that the most favourable construction should be placed upon all the House’s proceedings……
106. It is also necessary to take note of sub-section (4) of section 28 of Government of India Act, 1935 since it made the intention clear that for punitive action in certain matters the Legislature would have to go before a court. It provided as follows :-
“28. (3) Provision may be made by an Act of the Federal Legislature for the punishment, on conviction before a court, of persons who refuse to give evidence or produce documents before a committee of a Chamber when duly required by the Chairman of the Committee to do so :
Provided that any such Act shall have effect subject to such rules for regulating the attendance before such committees of persons who are, or have been, in the service of the Crown in India, and safeguarding confidential matter from disclosure as may be made by the Governor General exercising his individual judgment.”
Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors., 147
108. The Indian Independence Act 1947, which brought freedom from alien rule, made India a full- fledged Dominion of the Commonwealth of Nations. The Act conferred, through Section6(2), sovereign legislative power on the Indian dominion abrogating the Imperial doctrine of Repugnancy in the following terms :-
“No law and no provision of any law made by the Legislature of either of the new Dominions (India, and Pakistan) shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of this or any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act.”
112. The concept of parliamentary privileges in India in its modern form is indeed one of graft, imported from England. The House of Commons having been accepted by the Constituent Assembly as the model of the legislature, the privileges of that House were transplanted into the draft Constitution through Articles 105 and 194.
113. Article 85 of the Draft Constitution, which corresponds to present Article 105, contained the following provision with respect to parliamentary privileges :-
“85.(1) Subject to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any court in respect of any thing said or any vote given by him in Parliament or any Committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliamentof any report, paper, votes or proceedings.
(3) In other respect, the privileges and immunities of member of the Houses shall be such as may from time to time be defined by Parliament by law, and until so defined, of Commons of the Parliament of the United Kingdom at the commencement of this Constitution
(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 take part in the proceedings of, a House of Parliament as they apply in relation to members of Parliament.”
119. Article 169 of the Draft Constitution, which corresponds to present Article 194, contained similar provision with respect to privileges of the State Legislatures and came up for discussion before the Constituent Assembly on 3rd June, 1949. The speeches made on the occasion are available at pages 578-584 of the Constituent Assembly Debates (Volume 8).
138. The argument of availability of all the powers and privileges has been rejected in UP Assembly case with reference to illustrations of some powers claimed by the House of Commons as mentioned in May’s Parliamentary Practice (pages 86 and 175 in 16th Edn.), but which cannot be claimed by the Indian legislatures, including the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker “to have at all times the right to petition, counsel, or remonstrate with their Sovereign through their chosen representative and have a favourable construction placed on his words was justly regarded by the Commons as
148 Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors.,
fundamental privilege”; the privilege to pass acts of attainder and impeachments; and the privilege in regard to its own Constitution which is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of a Parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members incases of doubt.
162. While it is true that the right to vote and be represented is integral to our democratic process, it must be remembered that it is not an absolute right. There are certain limitations to the right to vote and be represented. For example, a citizen cannot claim the right to vote and be represented by a person who is disqualified by law or the right to be represented by a candidate he votes for, even if he fails to win the election. Similarly, expulsion is another such provision. Expulsion is related to the conduct of the member that lowers the dignity of the House, which may not have been necessarily known at the time of election. It is not a capricious exercise of the House, but an action to protect its dignity before the people of the country. This is also an integral aspect of our democratic set-up. In our view, the power of expulsion is not contrary to a democratic process. It is rather part of the guarantee of a democratic process. Further, expulsion is not a decision by a single person. It is a decision taken by the representatives of the rest of the country. Finally, the power of expulsion does not bar a member from standing for re-election or the constituency from electing that member once again.
163. Thus, we hold that the power of expulsion does not violate the right of the constituency or any other democratic principles.
(iv) Fundamental rights of the member :
164. Lastly, it has been contended by the Petitioners that the power of expulsion violates the fundamental rights of the member. It was argued that the power of expulsion violates Article 19(1)(g), which guarantees the right to ‘practise any profession, or to carry on any occupation, trade or business’. It was submitted that this right can only be curtailed by a law in the interest of general public and that producing the sameresult by a resolution of the House is impliedly barred.It was also contended that Article 21, which includes the right to livelihood was violated, since it can only be restricted by a ‘procedure established by law’.
165. We are not impressed with any of these contentions of the petitioners. Even if it were to be assumed these rights apply, we do not believe that they could prevent reading the power of expulsion within Article 105(3).
166. First, it is to be remembered that 105(3) is itself a constitutional provision and it is necessary that we must construe the provisions in such a way that a conflict with other provisions is avoided. We are of the view that where there is a specific constitutional provision as may havethe effect of curtailing these fundamental rights if found applicable, there is no need for a law to be passed in terms of Article 19(6). For example, Article 102 relating to disqualifications provides that members who are of unsound mind or who are undischarged insolvents as declared by competent courts are disqualified. These grounds are not mentioned in the Representation of
Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors., 149
the People Act, 1951. Though this provision would have the effect of curtailing the rights under Article 19(1)(g), we doubt that it can ever be contended that a specific law made in public interest is required. Similarly, if Article 105(3) provides for the power of expulsion (though not so expressly mentioned), it cannot be said that a specific law in public interest is required. Simply because the Parliament is given the power to make law on this subject is no reason to say that a law has to be mandatorily passed, when the Constitution itself provides that all the powers of the House of Commons vest until such a law is made. Thus, we find that Article 19(1)(g) cannot prevent the reading of power of expulsion under Article 105(3).
167. Finally, as far as Article 21 is concerned, it was submitted that the ‘procedure established by law’ includes the rules relating to the Privileges Committee, etc., which were not followed and thus the right was violated. In our view, this does not prevent the reading of the power to expel in Article 105(3). It is not possible to say that because a ‘procedure established by law’ is required, it will prevent the ‘power of expulsion altogether and that every act of expulsion will be contrary to the procedure established by law. Whether such a claim is maintainable upon specific facts of each case is something that will have to be considered when the question of judicial review is taken up. At this stage, however, a blanket ban on the power of expulsion based on Article 21 cannot be read in the Constitutional provisions. This is an issue that may have a bearing on the legality of the order. But, it cannot negate the power of expulsion.
168. In the light of the above discussion, we hold that the power of expulsion does not come into conflict with any of the constitutional provisions and thus cannot be negated on this basis.
292. It is axiomatic to state that expulsion is always in respect of a member. At the same time, it needs to be borne in mind that a member is part of the House due to which his or her conduct always has a direct bearing upon the perception of the House. Any legislative body must act through its members and the connection between the conduct of the members and the perception of the House is strong. We, therefore, conclude that even if the Parliament had only the limited remedial power to punish for contempt, the power to expel would be well within the limits ofsuch remedial contempt power.
293. We are unable to find any reason as to why legislatures established in India by the Constitution, including the Parliament under Article 105(3), should be denied the claim to the power of expulsion arising out of remedial power of contempt.295. In view of our interpretation of Article 105(3) of the Constitution, it is not essential to determine the question whether’necessity’ as an independent source of power, apart from the power of the House to punish for contempt, by expulsion of a member, is available or not. We may note that number of judgments were cited in support of the respective view points.
Parliamentary privileges vis-‘-vis Fundamental Rights
332. Before considering judicial review in Indian context, it is appropriate to first examine this aspect. In the face of arguments of illegalities in the procedure and the breach of fundamental rights, it has been strongly contended on behalf of the Union of India that Parliamentary
150 Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors., privileges cannot be decided against the touchstone of other constitutional provisions, in general,
and fundamental rights, in particular.
333. In this context, again it is necessary to seek enlightenment from the judgments in the two cases of Pandit Sharma as also the UP Assembly case where breach of fundamental rights had been alleged by the persons facing the wrong end of the stick.
334. In the case of Pandit Sharma (I), one of the two principal points canvassed before the Court revolved around the question as to whether the privilege of the Legislative Assembly underArticle 194 (3) prevails over the fundamental rights of the petitioner (non-member in that case) under Article 19(1)(a). This contention was sought to be supported on behalf of the petitioner through a variety of arguments including the plea that though clause (3) of Article 194 had not, in terms, been made “subject to the provision of the Constitution” it would not necessarily mean thatit was not so subject, and that the several clauses of Article 194, or Article 105, should not be treated as distinct and separate provisions but should be read as a whole and that, so read, all the clauses should be taken as subject to the provisions of the Constitution which would include Article 19(1)(a). It was also argued that Article 194 (1), like Article 105 (1), in reality operates as an abridgement of the fundamental rights of freedom of speech conferred by Article 19(1) (a) when exercised in Parliament or the State Legislature, as the case may be, but Article 194 (3)does not purport to be an exception to Article 19(1) (a). It was then submitted that Article 19 enunciates a transcendental principle and confers on the citizens of India indefeasible fundamental rights of a permanent nature while the second part of Article 194 (3) was of the nature of a transitory provision which, from its very nature, could not override the fundamental rights. Further, the contention raised was that if in pursuance of Article 105 (3), Parliament were to make a law under entry 74 in List I to the Seventh Schedule defining the powers, privileges and immunities of the Houses of Parliament and if the powers, privileges and immunities so defined were repugnant to the fundamental rights of the citizens, such law will, under Article 13, to the extent of such repugnancy be void and this being the intention of the Constitution-makers and there being no apparent indication of a different intention in the latter part of the same clause,the powers and privileges of the House of Commons conferred by the latter part of clause (3)must also be taken as subject to the fundamental rights.
335. The arguments of the petitioner to above effect, however, did not find favour with the Court. It was, inter alia, held that the subject matter of each of the four clauses of Article 194 (which more or less correspond to Article 105) was different. While clause (1) had been expressly made subject to the provisions of the Constitution, the remaining clauses had not been stated to be so subject, indicating that the Constitution makers did not intend clauses (2) to (4) to be subject to the provisions of the Constitution. It was ruled that the freedom of speech referred to in clause (1)was different from the freedom of speech and expression guaranteed under Article 19(1) (a) and the same could not be cut down in any way by any law contemplated by Article 19 (2). While agreeing with the proposition that a law made by Parliament in pursuance of the earlier part of Article 105 (3) would not be a law made in exercise of constituent power but would be one made
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in exercise of ordinary legislative powers under Article 246 read with the relevant entries of the Seventh Schedule and that consequently if such a law takes away or abridges any of the fundamental rights, it would contravene the peremptory provisions of Article 13 (2) and would be void to the extent of such contravention, it was observed that this did not lead to the conclusion that if the powers, privileges or immunities conferred by the latter part of the said Article are repugnantto the fundamental rights they must also be void to the extent of repugnancy. It was pointed out that it “must not be overlooked that the provisions of Article 105 (3) and Article 194 (3) are constitutional laws and not ordinary laws made by Parliament or the State Legislatures and that, therefore, they are as supreme as the provisions of Part III”. Interestingly, it was also observed in the context of amenability of a law made in pursuance of first parts of Article 105(3) and Article 194(3) to the provisions of Article 13(2) that “it may well be that that is perhaps the reason why our Parliament and the State Legislatures have not made any law defining the powers,privileges and immunities ……………………………… “
336. On the basis of conclusions so reached, this Court reconciled the conflict between fundamental right of speech and expression under Article 19(1)(a) on one hand and the powers and privileges of the Legislative Assembly under Article 194(3) on the other by holding thus :-
“The principle of harmonious construction must be adopted and so construed, the provisions of Art. 19(1)(a), which are general, must yield to Art. 194(1) and the latter part of its Cl. (3) which are special”
337.Pandit Sharma had also invoked Article 21 to contend that the proceedings before the Committee of Privileges of the Legislative Assembly threatened to deprive him of personal liberty otherwise than in accordance with the procedure established by law. This Court, however, found that the Legislative Assembly had framed rules of procedure under Article 208 and, therefore, if the petitioner was eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges, such deprivation would be in accordance withthe procedure established by law and, therefore, a complaint of breach of fundamental rightsunder Article 21 could not be made. The Court then proceeded to examine the case to test the contention that the procedure adopted by the Legislative Assembly was not in accordance withthe standing orders laying down the rules of procedure governing the conduct of its businessmade in exercise of powers under Article 208.
338. It is not possible to overlook developments in law post Pandit Sharma, including UP Assembly case.
339. In the course of addressing the issues raised in the case of UP Assembly, this court had the occassion to examine both parts of clause (3) of Article 194. Article 194 (1) provides “freedom of speech” in the legislature, though subject to provision of the Constitution and to the rules and standing orders regulating the procedure of the House in question. Article 194 (2) creates an absolute immunity, in favour of members of the legislature, against liability to any proceedings in any court in respect of anything said or any vote given by them in the legislative body or any
152 Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors.,
committees thereof. The first part of the clause (3) empowers the legislature to define “by law” the powers, privileges and immunities of the House, its members and the committees thereof, in respect other than those covered by the earlier two clauses of Article 194.
“Therefore, we do not think it would be right to read the majority decision as laying down a general proposition that whenever there is a conflict between the provisions of the latter part of Article 194(3) and any of the provisions of the fundamental rights guaranteed by Part III, thelatter must always yield to the former. The majority decision, therefore, must be taken to have settled that Article 19(1)(a) would not apply, and Article 21 would.”
357. The issue of jurisdiction was one of the principal concerns of this court in the case of UP Assembly, under the cover of which the Uttar Pradesh Legislative Assembly had asserted its right to commit Keshav Singh for contempt and later had taken umbrage against the entertainment of a petition for habeas corpus in the High Court under Article 226. The main controversy in that case squarely lay in the question as to whether the legislature was “the sole and exclusive judge” of the issue of contempt and of the punishment that deserved to be awarded against the contemnor, as against the jurisdiction claimed by the High Court to entertain a writ challenging the validity of the detention of the alleging contemnor.
359. The question of extent of judicial review of Parliamentary matters has to be resolved with reference to the provision contained in Article 122 (1) that corresponds to Article 212 referred to in Pandit Sharma (II). On a plain reading, Article 122 (1) prohibits “the validity of any proceedings in Parliament” from being “called in question” in a Court merely on the ground of “irregularity of procedure”. In other words, the procedural irregularities cannot be used by the Court to undo or vitiate what happens within the four walls of the legislature. But then, ‘procedural irregularity’ stands in stark contrast to ‘substantive illegality’ which cannot be found included in the former. We are of the considered view that this specific provision with regard to check on the role of the judicial organ vis-a-vis proceedings in Parliament uses language which is neither vague nor ambiguous and, therefore, must be treated as the constitutional mandate on the subject, rendering unnecessary search for an answer elsewhere or invocation of principles of harmonious construction.
361. The above indeed was a categorical clarification that Article 122 does contemplate control by the Courts over legality of Parliamentary proceedings. What the provision intended to prohibit thus were cases of interference with internal Parliamentary proceedings on the ground of mere procedural irregularity…. this Court in the case of UP Assembly concluded thus:
40. In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign. It is no doubt true that the Constitution itself can be amended by the Parliament, but that is possible because Article 368 of the Constitution itself makes a provision in that behalf, and the amendment of the Constitution can be validly made only by following the procedure prescribed by the said article. That shows that even when the Parliament purports to amend the Constitution, it has to comply with the relevant mandate of the Constitution itself.
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Legislators, Ministers, and Judges all take oath of allegiance to the Constitution, for it is by the relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to the provisions of the Constitution that they owe allegiance. Therefore, there can be no doubt that the sovereignty which can be claimed by the Parliament in England cannot be claimed by any legislature in India in the literal absolute sense.”
365. The touchstone upon which Parliamentary actions within the four -walls of the Legislature were examined was both the constitutional as well as substantive law. The proceedings which may be tainted on account of substantive illegality or unconstitutionality, as opposed to those suffering from mere irregularity thus cannot be held protected from judicial scrutiny by Article 122 (1) inasmuch as the broad principle laid down in Bradlaugh acknowledging exclusive cognizance of the Legislature in England has no application to the system of governance provided by our Constitution wherein no organ is sovereign and each organ is amenable to constitutional checks and controls, in which scheme of things, this Court is entrusted with the duty to be watchdog of and guarantor of the Constitution.
371. Paragraph 7 of Tenth Schedule contains an express bar of jurisdiction of courts. It reads as under :-
“Bar of jurisdiction of courts.- Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.”
373. The following observations in the judgment in KihotoHollohan need to be quoted in extenso :-
101. In the operative conclusions we pronounced on November 12, 1991 we indicated in clauses (G) and (H) therein that judicial review in the area is limited in the manner indicated. If the adjudicatory authority is a tribunal, as indeed we have held it to be, why, then, should its scope be so limited ? The finality clause in Paragraph 6 does not completely exclude the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority……..” (emphasis supplied)
375. In our considered view, the principle that is to be taken note of in the aforementioned series of cases is that notwithstanding the existence of finality clauses, this court exercised its jurisdiction of judicial review whenever and wherever breach of fundamental rights was alleged. President of India while determining the question of age of a Judge of a High Court under Article 217 (3), or the President of India (or the Governor, as the case may be) while taking a decision under Article 311 (3) to dispense with the ordinarily mandatory inquiry before dismissal or removal of a civil servant, or for that matter the Speaker (or the Chairman, as the case may be) deciding the question of disqualification under Para 6 of the Tenth Schedule may be acting as
154 Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors.,
authorities entrusted with such jurisdiction under the constitutional provisions. Yet, the manner in which they exercised the said jurisdiction is not wholly beyond the judicial scrutiny. In the case of Speaker exercising jurisdiction under the Tenth Schedule, the proceedings before him are declared by Para 6 (2) of the Tenth Schedule to be proceedings in Parliament within the meaning of Article 122. Yet, the said jurisdiction was not accepted as non-justiciable. In this view, we are unable to subscribe to the proposition that there is absolute immunity available to the Parliamentary proceedings relating to Article 105(3). It is a different matter as to what parameters, if any, should regulate or control the judicial scrutiny, of such proceedings.
Parameters for judicial review Re : Exercise of Parliamentary Privileges
397. We are of the view that the manner of exercise of the power or privilege by Parliament is immune from judicial scrutiny only to the extent indicated in Article 122(1), that is to say the Court will decline to interfere if the grievance brought before it is restricted to allegations of “irregularity of procedure”. But in case gross illegality or violation of constitutional provisions is shown, the judicial review will not be inhibited in any manner by Article 122, or for that matterby Article 105. If one was to accept what was alleged while rescinding the resolution of expulsionby the 7th LokSabha with conclusion that it was “inconsistent with and violative of the well- accepted principles of the law of Parliamentary privilege and the basic safeguards assured to all enshrined in the Constitution”, it would be partisan action in the name of exercise of privilege. We are not going into this issue but citing the incident as an illustration.
398. Having concluded that this Court has the jurisdiction to examine the procedure adopted to find if it is vitiated by any illegality or unconstitutionality, we must now examine the need for circumspection in judicial review of such matters as concern the powers and privileges of such august body as the Parliament.
Summary of the Principles relating to Parameter of Judicial Review in relation to exercise of Parliamentary Provisions
431. 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;
Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors., 155 c. The expediency and necessity of exercise of power or privilege by the legislature are for the
determination of the legislative authority and not for determination by the courts;
d. The judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature;
e. Having regard to the importance of the functions discharged by the legislature under the Constitution and the majesty and grandeur of its task, 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 betested, 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 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;
156 Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors., o. The truth or correctness of the material will not be questioned by the court nor will it go into the
adequacy of the material or substitute its opinion for that of the legislature;
p. Ordinarily, the legislature, as a body, cannot be accused of having acted for an extraneous purpose or being actuated by caprice or mala fide intention, and the court will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters, but if in a given case, the allegations to such effect are made, the Court may examine the validity of the said contention, the onus on the person alleging being extremely heavy
q. The rules which the legislature has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution;
r. Mere availability of the Rules of Procedure and Conduct of Business, as made by the legislature in exercise of enabling powers under the Constitution, is never a guarantee that they have been duly followed;
s. The proceedings 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;
436. In our considered view, conclusions cannot be drawn so as to attribute motive to the Houses of Parliament by reading statements out of the context. The relevant part of the speech of the Hon’bleSpeaker made on the floor of the House on 12th December, 2005 has been extracted inthe counter affidavit filed on behalf of the Union of India. It is pertinent to note that before statingthat nobody would be spared, the Speaker had exhorted the members of the House to rise to the occasion and to see to it that such an event does not occur ever in future and commended that “if anybody is guilty, he should be punished”. It is clear that when he stated that no body would be spared he was not immediately passing a judgment that the petitioners were guilty. He was only giving vent to his feeling on the subject of the proper course of action in the event of inquiry confirming the facts that had been projected in the telecast. The finding of guilt would come later.The fact that he had constituted an Inquiry Committee with members drawn also from parties in opposition rather goes to show that the resolve at that stage was to find the truth.
437. In these circumstances, we are unable to accept the allegation of malafide on the ground that decision had already been taken to expel them. Even otherwise, it cannot be ignored that the dissent within the respective Committees of the two Houses essentially pertained to the procedureadopted. Nothing less and nothing more. Further, the reports of the Committees having been adopted by the respective chambers of Parliament, the decision of the Committee got merged into
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that of the Legislative chamber which being collective body, it is difficult to attribute motive thereto, in particular, in the face of the fact that the resolutions in question were virtually unanimous as there was no demand at any stage from any quarter for division of votes.
439. We are unable to subscribe to this reasoning so as to find fault with the action that has been impugned before us. We are not concerned here with what kind of gains, financial or otherwise, those persons made as had conceived or engineered the sting operations leading to the material being brought into public domain through electronic media. This was not an area of anxiety even for the Houses of Parliament when they set about probing the matter resulting ultimately in expulsions. The sole question that was required to be addressed by the Inquiry Committees and the Legislative chambers revolved around the issue of misconduct attributed to the individual members bringing the House in disrepute. We, therefore, reject the above contention reiterating what we have already concluded, namely, that the expediency and necessity of exercise of such a power by the Legislature is for determination by the latter and not by the Courts.
447. We outrightly reject the argument of denial of reasonable opportunity and also that proceedings were concluded in a hurry. It has become almost fashionable to raise the banner of “Justice delayed is justice denied” in case of protracted proceedings and to argue “Justice hurried is justice buried” if the results are quick. We cannot draw inferences from the amount of time taken by the Committees that inquired the matters as no specific time is or can be prescribed. Further such matters are required to be dealt with utmost expedition subject to grant of reasonable opportunity, which was granted to the petitioners.
449. We agree with the submissions of the learned counsel for Union of India that the Inquiry Committee in the face of the refusal on the part of the concerned members was fully justified in not giving any credence to the objections that the video-clippings were doctored or morphed. The Committee in these circumstances could not be expected but to proceed to draw conclusions on the basis of the available material.
450. The reports of the Inquiry Committee of LokSabha and the Committee on Ethics of RajyaSabha indicate that both of the said Committees had called for explanations from each of the Members in question and had given due consideration to the same. The submissions of the learned counsel for Union of India that the proceedings of the respective Committees were opento one and all, including these petitioners who actually participated in the proceedings could not be refuted. Therefore, it is not permissible to the petitioners to contend that evidence had been taken behind their back. The reports further show that the Committees had taken care not to proceed on the edited versions of the video recordings. Each of them insisted and procured the raw video- footage of the different sting operations and drew conclusions after viewing the same. As pointed out by the learned counsel for Union of India, the evidence contained in the video recordings indicating demand or acceptance of money was further corroborated in two cases by the admissions made by the two Members of RajyaSabha. Dr. Chhattrapal Singh Lodha had sought to attribute the receipt of money to a different transaction connected with some organization he was heading. But this explanation was not believed by the Committee on Ethics
158 Raja Ram Pal v.Hon’ble Speaker, LokSabha and Ors.,
that unanimously found his complicity in unethical behaviour on account of acceptance of money for tabling questions in RajyaSabha. Dr. Swami SakshijiMaharaj, on the other hand, went to the extent of expressing his regrets and displaying a feeling of shame for his conduct even before the Committee on Ethics.
453. In these proceedings, this Court cannot not allow the truthfulness or correctness of the material to be questioned or permit the petitioners to go into the adequacy of the material or substitute its own opinion for that of the Legislature. Assuming some material on which the action is taken is found to be irrelevant, this Court shall not interfere so long as there is some relevant material sustaining the action. We find this material was available in the form of raw footage of video recordings, the nature of contents whereof are reflected in the Inquiry reports and on which subject the petitioners have not raised any issue of fact.
454. On perusal of the Inquiry reports, we find that there is no violation of any of the fundamental rights in general and Articles14, 20 or 21 in particular. Proper opportunity to explain and defend having been given to each of the petitioners, the procedure adopted by the two Houses of Parliament cannot be held to be suffering from any illegality, irrationality, unconstitutionality, violation of rules of natural justice or perversity. It cannot be held that the petitioners were not given a fair deal.
455. Before concluding, we place on record our appreciation for able assistance rendered by learned counsel for the parties in the matter.
456.In view of above, we find no substance in the pleas of the petitioners. Resultantly, all the Petitions and Transferred Cases questioning the validity of the decisions of expulsion of the petitioners from the respective Houses of Parliament, being devoid of merits are dismissed.
