Supreme Court of India
RAJA RAM PALversusTHE HONBLE SPEAKER, LOK SABHA & ORS.
- Citation
- 2007 INSC 22
- Decided
- 10 January 2007
- Disposal
- Dismissed
- Bench
- Y K SABHARWAL
Holding
The Houses of Parliament are competent to expel their members under Article 105(3) of the Constitution, and such power is subject to judicial review, but the procedure adopted in the present case did not suffer from any illegality, irrationality, unconstitutionality, or violation of natural justice.
Summary
Members of Parliament were expelled from the Lok Sabha and Rajya Sabha after television sting operations ('cash for query') showed them accepting money for raising questions in Parliament. Inquiry Committees were constituted by each House, reports were tabled, and motions were adopted expelling the members. The expelled MPs challenged the constitutional validity of their expulsions, arguing that the Houses of Parliament lacked the power to expel members and that the procedure violated fundamental rights and natural justice. The Supreme Court, by a 4:1 majority, held that the Houses of Parliament are competent to expel their members under Article 105(3) of the Constitution, which incorporates the powers and privileges of the House of Commons as of the commencement of the Constitution. The Court further held that such power is subject to judicial review, but the procedure adopted in this case did not suffer from any illegality, irrationality, unconstitutionality, or violation of natural justice. The writ petitions and transferred cases were dismissed, with Justice Raveendran dissenting on the ground that expulsion is not a power available under Article 105(3) and that Articles 101-102 are exhaustive regarding cessation of membership.
Issues considered
- Whether the Supreme Court has jurisdiction to decide the content and scope of powers, privileges and immunities of the Legislatures and its members.
- Whether the powers and privileges of the Legislatures in India, particularly under Article 105, include the power of expulsion of their members.
- Whether the Court has jurisdiction to interfere in the exercise of the power of expulsion and, if so, the scope of such judicial review.
Legislation cited
- Constitution of Indias. Article 101, s. Article 102, s. Article 103, s. Article 105, s. Article 106, s. Article 118, s. Article 122, s. Article 14, s. Article 19, s. Article 194, s. Article 20, s. Article 21, s. Article 212, s. Article 327, s. Article 83, s. Article 84
- Representation of the People Act, 1951s. Section 10, s. Section 10A, s. Section 11, s. Section 7, s. Section 8, s. Section 8A, s. Section 9, s. Section 9A
Subjects
Parliamentary privilegesExpulsion of membersArticle 105(3)Judicial reviewCash for queryPowers and immunities of ParliamentNatural justiceFundamental rightsContempt of HouseDisqualification vs expulsionConstitutional lawLegislative powers
Judgment
RAJA RAM PAL A
v.
THE HON'BLE SPEAKER, LOK SABHA & ORS.
JANUARY 10, 2007
[Y.K. SABHARWAL, CJI, K.G. BALAKRlSHNAN, C.K. THAKKER, B
R.V. RAVEENDRAN AND D.K. JAIN, JJ.]
Constitution of India, 1950:
Articles JOI, 102, 105 and 122/Representation of the People Act, C
1951-Sections 7 and JOA:
Cash for query-Monetary consideration for raising questions in
Parliament-MP Local Area Development Scheme-Improper conduct in
relation to implementation thereof-Espoused by T V. channels-Inquiry
by Committee of MPs-Report tabled in House and the MPs concerned
D
expelled from the House-Constitutional validity of-Powers, privileges
and immunities-Competence of the Houses of Parliament to expel the
Members from the membership of the House-Whether such power subject
to judicial review-Held: The Houses of Parliament are competent to expel
the Members-Such power subject to judicial review-Scope thereof- E
Explained.
Procedure adopted by the two Houses of Parliament-Does not suffer
from any illegality, irrationality, unconstitutionality, violation ofprinciples
of natural justice or perversity-Hence not violative of Articles 14, 20 or F
21.
Lok Sabha Speaker's announcement that the guilty will not be
spared-Whether mala fide and motivated-Held, no, since the Speaker
was only giving vent to his feeling on the subject-The fact that the
Speaker had thereafter constituted an Inquiry Committee with Members G
also from the opposition would go to show that the resolve at that stage
was to find the truth.
Articles 19(J)(g) and 21-Vis-a-vis-Article 105(3)-Discussed
H
317
318 SUPREME COURT REPORTS [20011 1 s.c;.R.
A Powers, privileges and immunities ofMembers ofParliament-Position
in countries like USA, UK., Canada, Australia-Discussed.
Words & Phrases:
'Vacw1cy', 'disqualification', 'expulsion', 'power', 'privilege',
B 'immunity'-Meaning of
The interpretation of Article 105 of Constitution of India is in issue .,.
in these matters. The question is whether in exercise of the powers,
privileges and immunities as contained in Article 105, are the Houses of
C Parliament competent to expel their respective Members from membership
of the House. If such a power exists, is it subject to judicial review and if
so, the sco'pe of such judicial review.
The aforesaid questions have arisen in the background of the allegation
that the Members of Parliament (MPs) indulged in unethical and corrupt
D practices of taking monetary consideration in relation to their functions as
MPs.
The Presiding officers of each House of Parliament instituted inquiries
through separate Committees.
E
On the Report of.the Inquiry Committee being laid on the table of the
House, a Motion was adopted by Lok Sabha resolving to expel the 10
members from the membership of Lok Sabha, accepting the finding as
contained in the Report of the Committ~e that the conduct of the members
F 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 Lok Sabha Secretariat issued the impugned notification notifying
the expulsion of those MPs with effect from same date.
Similarly the Report of the Ethics Committee was adopted by Rajya
G Sabha 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 Rajya Sabha with immediate effect was
issued.
H In the Writ Petitionsffransfer Cases, the expelled MPs have challenged
..
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 319
the constitutional validity of their respective expulsions. A
On behalf of the petitioners, it was inter alia contended that the power
of judicial review is an incident of and flows from the concept that the
fundamental and higher laws are the touchstone of the limits of the powers
of the various organs of State which derive power and authority under the
Constitution of which the judicial wing is the interpreter; unlike in
B
England where Parliament is sovereign, in a federal State with a written
Constitution like India is, the supremacy of the Constitution is fundamental
to its existence, which supremacy is protected by the authority of the
independent judicial body that acts as the interpreter thereof through the
power of judicial review to which even the Legislature is amenable and C
cannot claim immunity wherefrom; the legislative supremacy being subject
to the Constitution, Parliament cannot determine for itself the nature,
scope and effect of its powers which are, consequently, subject to the
supervision and control of judicial organ; that unlike the Parliament of
England, the status of Legislature in India has never been that of a superior D
court of record and that even privileges of Parliament are subject to limits
which must necessarily ~e ascertainable and, therefore, subject to scrutiny
by the Court, like any other right; the validity of any proceedings even
inside a legislative chamber can be called in question before the Court
when it suffers from illegality and unconstitutionality and there is no
immunity available to Parliament from judicial review; the Legislature has E
no power to expel its member since the Parliament has not enacted any law
which provides for expulsion of a member in a specified circumstance, in
terms of enabling power to legislate on ~he subject as available in Article
105(3) of the Constitution; the expulsions are illegal, arbitrary and
unconstitutional, being violative of the provisions of Articles 83, 84 and 101 F
to 103, 105 and 190 to 193 of the Constitution; there is no provision either
in the Constitution of India or in the Ru!es of Procedure and Conduct of
Business of the Houses of Parliament for expulsion of a member by
adoption of a motion and thus the impugned acts were beyond the jurisdiction
of Parliament; the expulsion of the petitioners from the Legislature
through a motion adopted by simple majority was a dangerous precedent G
which would give dictatorial powers to the ruling IDajority in the Legislatures
-., in future and thus be prone to further abuse; the Constitutional law
governing the democracies the world over, even in other jurisdictions
governed by written Constitutions, would not allow the power of exclusion
of the elected members unto the legislative chamber. H
•l
y
320 SUPREME COURT REPORTS [2007] I S.C.R.
A The following questions were formulated by the Court:
.,
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?
B 2. If the first question is answered in the affirmative, can it be found
that the powers and privileges of the Legislatures in India, in particular
with reference to Article 105, include the power of expulsion of their
members?
+
-
C 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?
Dismissing the Writ Petitions and the Transferred Cases, the Court
D
HELD: Per Majority (Sabharwal, CJ!, for himself and K.G.
Balakrishnan and D.K. Jain, JJ.)
1. In view of the clear enunciation of law by Constitutional Benches
E 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
F 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.
G [Para 62) [386-G-H, 387-A-B]
Kesavananda Bharati v. State of Kera/a, [1973) 4 SCC 225; Indira
Nehru Gandhi v. Raj Narain, [1975) (Suppl) SCC 1; Minerva Mills Ltd.
v. Union of India, [1980] 3 SCC 625; Sub-Committee on Judicial
H Accountability v. Union of India, [1991] 4 SCC 699; I. Manila! Singh v.
\'I
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 321
H. Borobabu Singh (Dr), (1994] Supp (1) SCC 718; Union of India v. A
Assn. for Democratic Reforms, [2002] 5 SCC 294; Special Reference No.
I of 2002, In re (Gujarat Assembly Election matter), (2002] 8 SCC 237;
People's Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC
399; Pratap Singh v. State of Jharkhand, [2005) 3 SCC 551; Rameshwar
Prasad (VI) v. Union of India, (2006) 2 SCC 1; Ku/dip Nayar v. Union
of India, (2006] 7 SCC 1; Special Reference No. I of 1964, (1965] 1 SCR
B
413 (UP Assembly case); MS.M Sharma v. Sri Krishna Sinha, [1959] Supp
(1) SCR 806; MS.M Sharma v. Shree Krishna Sinha, [1961] 1 SCR 96
and State of Karnataka v. Union of India, [1977] 4 SCC 608, relied on.
Bradlaugh v. Gosset, [1884] 12 QBD 271 and Richard William c
Prebble v. Television New Zealand Ltd, (1994) (S) WLR 970, referred to.
"Rules of Procedure and Conduct of Business in Lok Sabha"; "Rules
of Procedure and Conduct of Business in ·the Council of States" and "May's
Parliamentary Practice" by Sir Thomas Erskine May, referred to.
D
2. The historic origin of the doctrine of privileges of the legislature
in England is founded on its judicial functions. The House of Lords has
always claimed itself to be a Court of Record and as such having the
inherent authority and power not only to imprison but also to impose fines
, ' _' ~ t ~
in matters of contempt. But then, its position as a Court of Record does not
E
inure, according to Lord Kenyon, "when exercising a legislative capacity".
According to May's Parliamentary practice, the House of Commons at one
point of time in the history had also claimed to be a Court of Record, but
this position has never been finally determined.
[Para 82] [393-H, G 394-A-B]
F
Sir Thomas Erskine May: "May's Parliamentary Practice" and
Rutledge: "Procedure of the House of Commons" [Volume I, page 46],
-
referred to.
3.1. The medieval concept of Parliament in England primarily as a
G
court of justice, the 'High Court of Parliament' gave rise to the firm belief
that in order to defend the dignity of Parliament against disrespect and
affronts, there must vest in it a power to commit, without which the
·--...... privileges of Parliament would not exist. (Para 83] {394-Dl
3.2. In matters concerning import of powers and privileges of the H
322 SUPREME COURT REPORTS [2007] 1 S.C.R.
A House of Commons unto the legislature in India, while examining the issue,
albeit from the limited concern of the availability to State legislature under
Article 194(3) of the power of commitment for contempt, this court in the
UP Assembly Case had administered a note of caution that must hold good
even for purposes at hand. [Para 861 [395-D-E]
B 3.3= In the UP Assembly Case, 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 entirety because there are some powers which
cannot obviously be so claimed. (Para 87] (396-B]
c
Special Reference No. 1 of 1964, (1965) 1 SCR 413 (UP Assembly
case), relied on.
Ashby v. White L.J. (1701-05), 714, referred to.
D
4. The Constitution thus adopted through Articles 105 and 194, for
the Parliament and the State Legislatures respectively, the same powers,
privileges and immunities as vested at the commencement of the Constitution
in the House of Commons of the Parliament of United Kingdom, until they
were "defined by law". (Para 122] [413-D-E]
E
Prititosh Roy: "Parliamentary Privilege in India" (1991), Chapter-4,
titled 'Historical Background of Parliamentary Privilege in India (1915-
1950)' p. 53 and Constituent Assembly Debates Volume 8 of 19.5.1949,
page 143-149, 578-584, referred to.
F
5. Reference to the privileges of the House of Commons was justified
on grounds of self-assertion that free India and its Parliament are as great
as the Parliament of Great Britain. The drafting committee was more
concerned about giving to the Parliament the widest privileges as exercised
by members of Parliament in England, including the power to punish for
G contempt of the House. Full fledged provisions listing out the powers and
privileges was not possible as there was not sufficient time or the leisure
to formulate all of them in a compendious form, as had been found by a
Committee constituted by the Speaker on the legislative side. That is why
.
.;.--·
a wide scope and unfettered discretion was being left for the future
H Parliament of India to set up the proper machinery for formulating
RAJA RAM PAL v. THE HON'BLE SPEAK ER, LOK SABHA 323
privileges, which could be enlarged or curtailed. The adoption of the powers A
and privileges of the House of Commons was only as a temporary measure,
following the practice that had been followed in Australia, Canada and in
other Dominions with advantage to secure complete freedom of speech and
also the omnipotence of the legislature in every respect.
!Para 123) 1413-F-H, 414-A-Bl
B
6. The amendment brought into force in 1979 does not turn the clock
ahead. The powers and privileges of the House of Commons of the Parliament
of the United Kingdom as on the date of commencement of the Constitution
of India were the powers and privileges available to the Parliament before
the amendment and that is the package which continues .to be available post- C
amendment. Use of a particular power in 1947 would rather make it closer
in terms of time to the crucial date of commencement oflndian Constitution.
Its disuse in later period is of no consequence. !Para 125) (414-F-G)
7. It is incumbent in view of Article 105 (3) to trace the power of
D
expulsion with reference to the powers, privileges and immunities recognized
as vesting in the House of Commons of Parliament of United Kingdom
as on the date of commencement of the Constitution of India, that is
26th January 1950. If such a power or privilege vested in the said
legislature, the question would arise as to whether it could be part of the
inheritance for Indian legislatures in the face of the provisions of its E
written Constitution. [Para 135] (417-G-H)
8. It is settled that out of entire bouquet of privileges and powers
which the House of Commons claimed at the time of its bitter struggle
for recognition during the 17th through 19th centuries, all have not F
-\ survived the test of time. Some were given up. Some others faded out by
desuetude. [Para 136) [418-A)
9. 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 G
Parliamentary Practice, 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 imd have a favourable construction H
324 SUPREME COURT REPORTS [2007] I S.C.R.
A placed on his words was justly regarded by the Coinmons as 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 parliamenl; secondly, by the trial of controverted
elections; and thirdly, by determining the qualifications of its members in
B cases of doubt. [Para 137) [418-E-G]
Special Reference No. I of 1964, (1965) 1 SCR 413 (UP Assembly
case), relied on.
C Sir Thomas Erskine May : "May's Parliamentary Practice" 16th Edn.
pp. 86, 175, referred to.
10.1. It is necessary to understand the exact import of the terms
'vacancy', 'disqualification' and 'expulsion'. These terms have different
meanings and they do not overlap. Disqualification strikes at the very root
D
of the candidate's qualification and renders him or her unable to occupy a
member's seat. Expulsion, on the other hand, deals with a person who is
otherwise qualified, but in the opinion of the House of the legislature,
unworthy of membership. While disqualification operates to prevent a
candidate from re-election, expulsion occurs after the election of the
E member and there is no bar on re-election. As far as the term 'vacancy' is
concerned, it is a consequence of the fact that a member cannot continue to
hold membership. The reason may be any one of the several possible
reasons which prevent the member from continuing membership, for
example disqualification, death or expulsion. [Paras 142 & 143] (420-B-D]
F
10.2. In view of above, it is not possible to accept the submission
that the termination of membership can be effected only in the manner laid
down in Articles 101 and 102. While these articles do speak of qualifications
for and continuation of membership, they operate independently of Article
105(3). Article 105(3) is also a constitutional provision and it demands
G equal weight as any other provision, and neither being 'subject to the
provisions of the constitution', it is impossible to accord to one superiority
over the other. It cannot be said the submission that the provisions in
Articles 101 or 102 restrict in any way the scope of Article 194(3). There
is no reason for them to do so. Though disqualification and expulsion both
H result in the vacancy of a seat, there is no necessity to read one in a way
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 325
that restricts the scope of the other. The expulsion on being found unfit for A
functioning within the House in no way affects the qualifications that a
member must fulfill, and there is no reason for the latter to affect
expulsion. Both of the provisions can operate quite harmoniously. There
is no inconsistency between the two. Nor is there any reason to support the
claim that provisions under Articles 101 and 102 are exh.austive and for
that reason, Article 105(3) be read as not to include the power of expulsion.
B
Further, death as a cause for vacancy of a seat is also not mentioned in the
relevant provisions. Similarly, it is not necessary for expulsion to be
mentioned, ifthere exists another constitutional provision that provides for
such a power. It is obvious that upon expulsion, the seat of the member is
rendered vacant and so no specific recognition of this provision is necessary C
within the provision relating to vacancy. Thus, the power of expulsion
cannot be held to be inconsistent with these provisions.
[Para 144] [420-E-H, 421-A]
10.3. It is not possible to accept the Petitioners' contention that
Articles 101 and 102 are exhaustive with respect to termination of D
membership. Therefore, power of expulsion cannot be said to be inconsistent
.... with these provisions. [Para 146) [421-E]
10.4. Disqualification and expulsion are two different concepts
altogether, and recognizing the Parliament's power to expel under E
Article 105(3) does by no means amount to adding a new ground for
disqualification. [Para 147) [421-GJ
10.5. Article 105(3) itself provides the power to make a law defining
powers and privileges and further the position that all the privileges of the
House of Commons vest in the Parliament until such a law is passed. F
Article 327 pertains to the constitution of the House insofar as election
matters, etc. are concerned. It does not refer to privileges that the Parliament
enjoys. Thus, the power of expulsion is not negated by any of the above
constitutional or statutory provisions. [Para 148 & 149] [422-B-C]
Yashwant Rao Meghawale v. Madhya Pradesh Legislative Assembly, G
AIR (1967) MP 95; Hardwari Lal ILR (1977) 2 P&H 269 (FB); K.
Anbazhagan v. TN Legislative Assembly, AIR (1988) Mad. 275 and Shrikant
v. Vasantrao, [2006] 2 SCC 682, referred to.
Armstrong v. Budd, (1969) 71 SR 386 (NSW), referred to. H
326 SUPREME COURT REPORTS· [2007] 1 S.C.R.
A 11.1. In the present case, where there is a lawful expulsion, the )--.__
members cannot claim that the provisions relating to salaries and duration
of the House create such rights for the members that would have supremacy
over the power of expulsion of the House. I Para 15411423-Fl
11.2. As ~ar as the provision for the duration of the House is
B concerned, the normal duration of a House is to be five years. It cannot be
interpreted to mean that it guarantees to the members a term of five years.
The Respondents have correctly pointed out that a member does not enjoy
the full five-year term under various circumstances; for example-when he
*
or she is elected mid-term, when the term of the House is cut short by
c dissolution, when the member stands disqualified or the seat is rendered
vacant. A correct view in this regard has been taken in K. Anbazhagan, in
line with the view expressed by this Court in K. Anandan Nambiar. If the
provisions mentioned by the petitioners were actually to create rights in
respect of members, then each of the above situations would be liable to be
challenged for their violation. This quite obviously is not what is intended
D
by the Constitution. Expulsion is onl)'. an additional cause for the shortening
of a term of a member. [Para 156] [424-A-C] 1' ~
11.3. Further, as far as the provision relating to the salary of the
member is concerned, it is quite absurd to claim that because the
E Constitution makes a provision for salaries, the power of the House to expel
is negated since the result would be that the member would no longer be
paid. Salades are obviously dependent upon membership, and the
continuation of membership is an independent matter altogether. The
termination of membership can occur for a variety of reasons and this is
F at no point controlled by the fact that salaries are required to be paid to a
member. (Para 157] [424-D-E) +-
11.4. Thus, the provisions do not negate the power of expulsion of the
House, and there is no inconsistency between the House's power of
expulsion and the said provisions. iPara 158) (424-F)
G
11.5. 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 p"
represented. For example, a citizen cannot claim the right to vote and be
H represented by a person who is disqualified by law or the right to be
1.
\ RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 327
represented by a candidate he votes for, even if he fails to win the election. A
-~ 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.
B
-
The power of expulsion is not contrary to a democratic process. It is
rather part of the guarantee ofa 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. Thus, the power of c
expulsion does not violate the right of the constituency or any other
democratic principles. [Paras 161 and 162} [425-B-FJ
11.6. Article 105(3) is itself a constitutional provision and it is
necessary to construe the provisions in such a way that a conflict with other
D
provisions is avoided. Where there is a specific constitutional provision as
may have the effect of curtailing these fandamenta/ 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 E
the Representation of Peoples Act, 1951. Though this provision would have
the effect of curtailing the rights under Article 19(1 )(g), there is 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 F
~~
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,
Article 19(1)(g) cannot prevent the reading of power of expulsion under
Article 105(3). [Para 165) [426-B-E) G
11.7. As far as Article 21 is concerned, it was submitted that the
'procedure established by law' includes the rules relating to the Privileges
1--\ Committee, etc., which were not followed and thus the right was violated.
" · This does not prevent the reading of the power to expel in Article 105(3). H
328 SUPREME COURT REPORTS (2007) 1 S.C.R
A 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
B 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. (Para 166] (426-F-H]
11.8. The power of expulsion does not come into conflict with any of
C the constitutional provisions and thus cannot be negated on this basis.
(Para 167) (427-A]
Shrikant v. Vasantrao, 12006] 2 SCC 682 and Ku/dip Nayar v. Union
of India, [2006] 7 SCC 1, relied on.
D K. Anbazhagan v. TN Legislative Assembly, AIR (1988) Mad. 275 and
K. Anandan Nambiar v. Chief Secretary, State of Madras, AIR (1966) SC
657, referred to.
12.1. Neither Parliament nor State Legislatures in India can assert
E power to provide for or regulate their own constitution in the manner
claimed by the House of Commons in United Kingdom. Having regard to the
elaborate provision made elsewhere in the Constitution, this power cannot
be claimed even, or least of all, through the channel of Articles 105 (3) or
294 (3). Wara 188] (431-G-H]
F
12.2. Though Maitland also discusses expulsion along with the other
constituent elements of the House's Privilege of determining its own
composition, it is difficult to accept the argument of the Petitioners that
this exposition by Professor Maitland shows that the power of expulsion was
claimed by the House of Commons it being only a part and parcel of its basic
G privilege to control its own composition. [Para 217] (441-B-C]
12.3. Wade & Phillips have treated the subject of expulsion from
different angles, not necessarily leading to the conclusion that this power
would always be traceable to the power of self composition alone. Expulsion +
H on account of conviction for misdeamonour refers to disciplinary control
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 329
and therefore part of penal jurisdiction which undoubtedly is distinct from A
the power of the House to provide for its own constitution.
[Para 220) (442-C]
12.4. The petitioners seek to point out that expulsion ofa member is
not included in the penal powers of the House of Commons. Default in this
regard by the author does not lead to the conclusion that expulsion was not B
one of the sanctions available against a member to the House as part of its
disciplinary control in as much as other authorities on the subject
demonstrate it to be so. [Para 222) [442-F-G)
12.5. It is clear that E.W. Ridges, though referring to the power of
expulsion under the heading "The Right to Provide for its Due Composition",
c
does not restrict it as a power sourced from the right to provide for its own
composition but refers at length to cases where the power of expulsion was
used by the House of Commons in cases of criminal conduct, gross
misdemeanour and even in matters of contempt. It is difficult to subscribe
to the inference that the power of expulsion according to Ridges is D
traceable only to the privilege of self composition. [Para 224) [442-D-E]
12.6. It cannot be said that the source of Power of Expulsion in
England was the privilege of the House of Commons to regulate its own
constitution or that the source of the power is single and indivisible and
cannot be traced to some other source like independent or inherent penal E
power. The right to enforce its privileges either by imposition of fine or
by commitment to prison (both of which punishments can be awarded
against the members of the House as well as outsiders) or by expulsion
(possible in case of members only) is not a part of any other privilege but
is by itself a separate and independent power or privilege. To enforce a F
privilege against a member by expelling him for breach of such privilege
-"' is not a way of expressing the power of the House of Commons to constitute
itself. Though expulsion can be, and may have been, resorted to by the
House of Commons with a view to preserve or change its constitution, it
would not exclude or impinge upon its independent privilege to punish a
member for breach of privilege or for contempt by expelling him from the G
House. Expulsion concerns the House itself as the punishment of expulsion
cannot be inflicted on a person who is not a member of the House. As a
necessary and direct consequence, the composition of the House may be
affected by the expulsion of a member. That would not, however, necessarily
mean that the power of expulsion is exercised only with a view, or for the H
330 SUPREME COURT REPORTS [2007] 1 S.C.R. y
A purpose of regulating the composition of the House. One of the three ways
of exercising the privilege of the Commons to constitute itself as mentioned
by May (in 20th Editbn) can undoubtedly, in certain circumstances, be
expressed by expelling a member of the House. But this does not mean that
the existence and exercise of the privilege of expelling a member by way
of punishment for misconduct or contempt of the House stands ruled
B out. The power of self composition of the House of Commons is
materially distinct and meant for purposes other than those for which
the House has the competence to resort to expulsion of its members for
acts of high misdemeanour. The existence of the former power on
which expulsion can be ordered by the House of Commons cannot by
C itself exclude or abrogate the independent power of the House to punish
a member by expelling him, a punishment which cannot be inflicte~ on a
non-member. [Paras 233, 234 & 235] [447-C-H, 448-A-B]
12. 7. Expulsion being regarded as "justly as an example of the
privilege of the House of Commons to regulate its own Constitution" by
D
May does not mean tilat the power to expel is sclely derived from the
privilege to regulate its own Constitution or that without the privilege of
providing for its own Constitution, the House could not expel a member.
The latter view would be contrary to the established position that the Ho!lse
has a right as part of its privilege to have complete control over
E its proceedings including the right to punish a member by expulsion
who by his conduct interferes with the proper conduct of Parliament
business. [Para 236] [447-C-DJ
Anson: 'The Law and Custom of the Constitution' [Fifth edition
F (1922), Volume I, Chapter IV); Para 1019 ofHalsbury's Law of England;
Professor F.W. Maitland: The "Constitutional History of England" (first
edition 1908, reprinted 1941); Profess0t:s Wade and Phillips:
"Constitutional Law" (Seventh edition); Professors .Keir and Lawson:
"Cases in Constitutional Law" (fifth edition) and E.W. Ridges:
"Constitutional Law" (Eighth edition, p; 65), referred to.
G
13.1. In the opinion of the Court in case of UP Assembly, legislatures
in India do enjoy the power to punish for contempt. It is equally clear that
while the fact that the House of Commons enjoyed the power to issue
unspeaking warrants in its capacity of a Court of Record was one concern,
H what actually worried the Court was not the source of the power per se, but
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 331
the 'judicial' nature of power to issue unspeaking warrant insofar as it was A
directly in conflict with the scheme of the Constitution whereby citizens
were guaranteed fandamental rights and the power to enforce the fundamental
right is vested in the Courts. It was not the power to punish for contempt
about which the Court had reservations. Rather, the above-quoted passage
shows that such power had been accepted by the Court. The issue decided
concerned the non-reviewability of the warrant issued by the legislature, in
B
the light of various constitutional provisions. There are many differences
between the case of UP Assembly and the one at hand. The entire
controversy in the former case revolved around the privileges of the House
in relation to the fundamental rights of a citizen, an outsider to the House.
The decision expressly states that the Court was not dealing with internal C
proceedings, nor laying down law in relation to members of the House.
[Paras 266 & 267) [459-H 460-A-D)
13.2. The ratio of case of UP Assembly, which was decided under
significantly different circumstances, cannot be interpreted to have held D
'y that all the powers of the House of Commons enjoyed in its capacity as a
Court of Record are unavailable to the Indian parliament, including the
power to punish for contempt. [Para 268) (461-A-B)
13.3. This Court is unable to accept the contention that the power to
punish for contempt is denied to the Indian legislatures as they are not E
Courts of Record. However, it is emphasized that the power to punish for
contempt of the House of Commons is a very broad power, encompassing
a variety of other powers. The case of UP Assembly examined only one
aspect of that power - to issue unspeaking warrants - and held that such
"'--4,.
a power is unavailable under our constitution. What this Court presently F
examining in the cases at hand is another aspect of this broad contempt
power - the power to expel a sitting member. While the power to punish
for contempt in its totality has not been struck down by decision in UP
Assembly, this Court does not intend to rule on the validity of the broad
power to punish for contempt as a whole. The different elements of this
broad contempt power will have to be decided on an independent scrutiny G
of validity in appropriate case. This Court would restrict to the power to
expel a member for contempt committed by him. Having found, however, that
there is no bar on reading the power to punish for contempt in Article
105(3), it is possible to source the power of expulsion through the same
provision. [Para 272) [463-B-E) H
332 SUPREME COURT REPORTS [2007] 1 S.C.R.
A 13.4. There is no contest whatsoever to the plea that the House of
Commons did in fact enjoy the power of expulsion at the commencement of
the Constitution. A number of instances have been quoted even by the
petitioners, including those occurring around the time of the commencement
of the Constitution. To mention some of them, notice may be taken of case
of member named Horatio Bottomley, expelled in 1922 after he was
B convicted for fraudulent conversion of property; case of Gary Allighan,
expelled in 1947, for gross contempt of House after publication of an article
accusing members of the House of insobriety and taking fees or bribe for
information; and, the case of Peter Baker, expelled in 1954 from the House
after being convicted and sentenced for forgery. Although the examples of
C expulsion in this century by the House of Commons are few, the relevant
time for our purposes is the date of the commencement of the Constitution.
The last two cases occurring in 1947 and 1954 clearly establish that the
power to expel was in fact a privilege of the House of Commons at the
commencement of our Constitution. Thus, from this perspective, the power
of expulsion can be read within Article 105(3). As already held this power
D
is not inconsistent with other provisions of the Constitution.
[Paras 273 & 274) [463-F-H, 464-A-B]
Special Reference No. 1 of 1964, [1965) 1 SCR 413 (UP Assembly
case; MS.M Sharma v. Sri Krishna Sinha, [1959] Supp 1 SCR 806;
E MS.M Sharma v. Shree Krishna Sinha, [1961) 1 SCR 96; Yeshwant Rao
v. MP Legislative Assembly AIR (1967) MP 95; Hardwari Lal v. Election
Commission of India Etc. ILR (1977) P&H 269; K. Anbazhagan v. Tamil
Nadu Legislative Assembly, AIR (1988) Mad 275 and State of Karnataka
v. Union of India, [1977) 4 SCC 608, referred to.
F
Dill v. Murphy, 1864 (15) ER 784; Fielding v. Thomas, [1896) AC
600; Kei/ley v. Carson, [1842) 4 Moo. PC 63; Fenton v. Hampton (1858)
11 MOO PCC 347; Doyle v. Falconer, [1865-67) LR 1 PC 328; Barton
v. Taylor, {1886) 11 App Cases 197 and Marshallv. Gordon, 243 U.S. 521,
541 [1917), referred to.
G
14. 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
H members and the connection between the conduct of the members and the
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 333
perception of the House is strong. It is, therefore, concluded that even if the A
Parliament had only the limited remedial power to punish for contempt, the
power to expel would be well within the limits of such remedial contempt
power. There is no 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. [Paras 290 and 291] [469-H, 470-A-B]
B
,. Hartnett v. Crick, [1908] AC 470, referred to.
15. In view of the interpretation of Article 105(3) of the Constitution,
it is not essential to determine the question whether 'necessity' as an C
independent source of power, apart from the power of the House to punish
for contempt, by expulsion of a member, is available or not.
[Para 293] [470-E]
16. The approach adopted in Australia is entirely for the Parliament
to consider and examine, if so advised. In so far as this Court is concerned, D
__. since India does not have a law that codifies the privileges of the Parliament,
, nothing turns on the basis of the Australian legislation.
r
[Para 297) [472-A]
Odger's "Australian Senate Practice", referred to.
E
17. The opinion expressed by the Members of Parliament in May
1981, or for that matter in December 1978, as indeed in June 1951
merely represent their respective understanding of the law of privileges.
These views are not law on the subject by the Parliament in exercise of
its enabling power under the second part of Article 105(3). It cannot F
be said, given the case of expulsion of Mudgal in 1951 that the
parliamentary practice in India is wholly against resort to the sanction of
expulsion for breach of privileges under Article 105. On the question
whether power of expulsion exists or not, divergent views have been
expressed by members in the Parliament. These views deserve to be
respected but on the question whether there exists power of expulsion is G
a matter of interpretation of the constitutional provisions, in particular
Article 105(3) and Article 194(3) on which the final arbiter is this Court
and not the Parliament. [Paras 313 & 314) (481-C-E]
Hardwari Lal, ILR (1977) 2 P&H 269, referred to. H
334 SUPREME COURT REPORTS [2007] I S.C.R.
A Subhash C. Kashyap: 'Parliamentary Procedure' (Vol. 2, p.1657) and
'Practice and Procedure of Parliament' by Kaul and Shakder (5th Edn.)
page 262, referred to.
18. The observation of this court in the case of UP Assembly,
paraphrasing the position of law and practice in England on the authority
B of May's Parliamentary Practice, refers to enforcement by the legislature
of privileges which had been recognized by the courts. The observation has
no relevance on the question under consideration in these matters since the
law in England of exclusive cognizance has no applicability in India which
is governed and bound by the Constitution oflndia. (Para 330) [486-E-F)
c
MS.M Sharma v. Sri Krishna Sinha, (1959) Supp (1) SCR 806;
Indira Nehru Gandhiv. Raj Narain, [1975) Supp SCC 1 and P. V. Narasimha
Rao v. State, (CBl/SPE) [1998) 4 SCC 626, referred to.
Earl of Shaftesbury (86 E.R. 792); Ashby v. White, [1703-04] 92 E.R.
D 129; R. v. Paty, (1704) 92 E.R. 232; Case of Murray (95 E.R. 629); Case
of Brass Crosby (95 E.R. 1005); Case of Sir Francis Burdett (104 E.R.
501); Cases of Stockdale (1836-37), Howard v. Sir William Gosset (116
E.R. 139) and Bradlaugh v. Gossett, (1884) L.R. 12 Q.B.D. 271, referred
to.
E
19. What this Court_ "deliberately omitted" to do in the case of UP
Assembly was consideration of the powers, privileges and immunities other
·..,than the contempt jurisdiction of the Legislature. The views expressed as
to the applicability of Article 20 and Article 21 in the context of manner
of exercise of the powers and privileges of the Legislative Assembly are of
F
general import and cannot be wished away. They would hold good not merely
against a non-member as was the case in that Reference but even against
a member of the Legislature who also is a citizen of this country and
entitled to the protection of the same fundamental rights, especially when
the impugned action entails civil consequences. [Para 349] [495-C-F]
G
Special Reference No. I of 1964, [1965] 1 SCR 413 (UP Assembly
case) and MS.M. Sharma v. Sri Krishna Sinha, (1959) Supp 1 SCR 806,
referred to.
H New Brunswick Broadcasting Corporation v. Nova Scotia Speaker,
..
RAJA RAM PAL v. THE HON~BLE SPEAKER, LOK SABHA 335
[1993) 1 SCR 391; Harvey v. New Brunswick, [1996) 2 SCR 876 and A
House of Commons v. Vaid, (2005) 1 SCR 667, referred to.
20. In the light of law laid down in the two cases of Pandit Sharma
and in the case of UP Assembly, it is held that the broad contention on behalf
of the Union oflndia that the exercise of Parliamentary privileges cannot
be decided against the touchstone offundamental rights or the constitutional
B
·> provisions is not correct. In the case of Pandit Sharma the manner of
.... )
exercise of the privilege claimed by the Bihar Legislative Assembly was
tested against the "procedure established by law" and thus on the touchstone
of Article 21. It is a different matter that the requirements of Article 21,
as at the time understood in its restrictive meaning, were found satisfied. c
The point to be noted here is that Article 21 was found applicable and the
procedure of the legislature was tested on its anvil. This view was followed
in the case of UP Assembly which added the enforceability of Article 20 to
the fray. [Para 350) (495-F-H]
. . Special Reference No. I of 1964, )1965) 1 SCR 413 (UP Assembly
case); MS.M Sharma v. Sri Krishna Sinha, [1959) Supp 1 SCR 806 and
MS.M Sharma v. Shree Krishna Sinha, (1961) 1 SCR 96, referred to.
21.1. The enforceability of Article 21 in relation to the manner of
D
exercise of Parliamentary privilege, as affirmed in the cases of Pandit E
Sharma and UP Assembly has to be understood ~n light of the expanded
scope of the said fundamental right. [Para 352] [4 97-H, 498-A]
21.2. It is to be remembered that the plenitude of powers
possessed by the Parliament under the written Constitution is subject to
F
legislative competence and restrictions of fundamental rights and that iri
case a member's personal liberty was threatened by imprisonment of
committal in execution of Parliamentary privilege, Article 21 would be
_;. attracted. [Para 353) [498-B]
21.3. Ifit were so, it is difficult to fathom any reason why the general G
proposition that fundamental rights cannot be invoked in matters concerning
Parliamentary privileges should be accepted. Further, there is no reason
why the member, or indeed a non-member, should not be entitled to the
protection of Article 21, or for that matter Article 20, in case the exercise
of Parliamentary privilege contemplates a sanction other than that of H
336 SUPREME COURT REPORTS [2007] 1 S.C.R.
1---.
A committal. [Para 354] [498-C]
Special Reference No. I of 1964, [1965] 1 SCR 413 (UP Assembly
case); MS.M Sharma v. Sri Krishna Sinha, [1959] Supp 1 SCR 806;
MS.M Sharma v. Shree Krishna Sinha, [1961] 1 SCR 96; A.K. Gopalan
v. State of Madras, [19501 SCR 88; Rustom Cavasjee Cooper v. Union of
B India, [1970] 1 SCC 248 and Ashok Kumar Gupta v. State of U.P., {1997)
5 sec 201, referred to.
22. Notwithstanding the existence of finality clauses, this court
exercised its jurisdiction of judicial review whenever and wherever breach
C offundamental rights was alleged. President oflndia while determining the
question of age of a Judge of a High Court under Article 217 (3), or the
President oflndia (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
D 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
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
E 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, it is not possible to
subscribe to the proposition that there is absolute immunity available to the
Parliamentary proceedings relating to Article 105(3). It is a different
F matter as to what parameters, if any, should regulate or control the judicial
scrutiny of such proceedings. [Para 374) [510-B-D)
Sub-Committee on Judicial Accountability v. Union of India, [1991]
4 SCC 699; Union of India v. Jyoti Prakash Mitter, [1971) 1 SCC 396;
G Union of India v. Tulsiram Patel, [1985] 3 SCC 398; Kihoto Hollohan v.
Zachillhu, [1992] Supp 2 SCC 651 and Express Newspaper (P) Ltd v.
Union of India, AIR (1958) SC 578, referred to.
Australian Boot Trade Employees Federation v. Whybrow & Co.,
(1910) 10 CLR 266, referred to.
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 337
23. The question before the court in the case of Indira Nehru Gandhi A
essentially pertained to the lawfulness of the session of Parliament that had
passed the constitutional amendment measure. The concern of the court
did not involve the legality of the act of the legislative body. As regards
the views based on the holding in the case of Pandit Sharma, it has already
been observed that it was rather premature for the court to consider as to
whether any illegality vitiated the process of the legislative assembly.
B
[Para 381) [513-C]
Tej Kiran Jain v. N. Sanjiva Reddy, (1970) 2 SCC 272 and Indira
Nehru Gandhi v. Raj Narain, [1975] Suppl. SCC 1, referred to.
c
24. Article 122(1) must be found to contemplate the twin test oflegality
and constitutionality for any proceedings within the four walls of Parliament
The fact that the case of UP Assembly dealt with the exercise of the power of
the House beyond its four-walls does not affect this view which explicitly
interpreted a constitutional provision dealing specifically with the extent of D
.... judicial review of the internal proceedings of the legislative body. In this view,
Article 122(1) displaces the English doctrine of exclusive cognizance of
internal proceedings of the House rendering irrelevant the case law that
emanated from courts in that jurisdiction. Any attempt to read a limitation
into Article 122 so as to restrict the court's jurisdiction to examination of
the Parliament's procedure in case of unconstitutionality, as opposed to E
illegality would amount to doing violence to the constitutional text. Applying
the principle of" expressio unius est exclusio alterius" (whatever has not been
included has by implication been excluded), it is plain and clear that prohibition
against examination on the touchstone of "irregularity of procedure" does
not make taboo judicial review on findings of illegality or unconstitutionality. F
(Para 384) [514-C-F)
... Smt. S. Ramaswami v. Union of India, (1992) Suppl. 1 SCR 108,
referred to.
25. It is always expected, rather it should be a matter of G
presumption, that Parliament would always perform its functions and
exercise its powers in a reasonable manner. But, at the same time there
is no scope for a general rule that the exercise of powers by the legislature
is not amenable to judicial review. This is neither the letter nor the spirit
of our Constitution. This Court finds no reason not to accept that the scope H
338 SUPREME COURT REPORTS [2007] 1 S.C.R.
A for judicial review in matters concerning Parliamentary proceedings
is limited and restricted. In fact this has been done by express
prescription in the constitutional provisions, including the one contained
in Article 122(1). But the scrutiny cannot stop, merely on the privilege
being found, especially when breach of other constitutional provisions has
been alleged. [Para 387) [515-F-H]
B
26. Non-existence of standards of judicial review is no reason to
conclude that judicial scrutiny is ousted. If standards for judicial review
of such matters as at hand are not yet determined, it is time to do so now.
Parliament indeed is a coordinate organ and its views do deserve deference
C even while its acts are amenable to judicial scrutiny. While its acts,
particularly of the nature involved here ought not to be tested in the same
manner as an ordinary administrative action would be tested, there is no
foundation to the plea that a Legislative body cannot be attributed
jurisdictional error. [Para 389) [516-C-D]
D
27. While it is agreed that contempt of authority of Parliament can
be tried and punished nowhere except before it, the judicial review of the
manner of exercise of power of contempt or privilege does not mean the said
jurisdiction is being usurped by the judicature. As has been noticed, in the
context of Article 122(1), mere irregularity of the procedure cannot be a
E ground of challenge to the proceedings in Parliament or effect thereof, and
while same view can be adopted as to the element of "irrationality", but in
our constitutional scheme, illegality or unconstitutionality will not sa':e the
Parliamentary proceedings. [Para 391) (516-G-H, 517-A]
F 28. It is the submission on behalf of the Union of India that the
proceedings in question were proceedings which were entitled to protection
under Article 105(2). In other words, in respect of proceedings, if a member
is offered immunity, Parliament too is offered immunity. The actions of
Parliament, except when they are translated into law, cannot be questioned •
in court. It is found the argument to be founded on reading of Article 105(2)
G beyond its context. What is declared by the said clause as immune from
liability "to any proceedings in any court" is not any or every act of the
Legislative body or members thereof, but only matters "in respect of anything
said or any vote given" by the members "in Parliament or any Committee
thereof'. If Article 105(2) were to be construed so broadly, it would tend to
H save even the legislative Acts from judicial gaze, which would militate against
1 RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 339
the constitutional provisions. (Paras 392 and 393) (517-B-D] A
- 29. 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 B
shown, the judicial review will not be inhibited in any manner by Article
122, or for that matter by Article 105. If one was to accept what was alleged
t while rescinding the resolution of expulsion by the 7th Lok Sabha with
conclusion that it was "inconsistent with and violative of the well-accepted
principles of the law of Parliamentary privilege and the basic safeguards C
assured to all enshrined in the Constitution", it would be partisan action
in the name of exercise of privilege. This issue is not gone into but incident
is cited as an illustration. (Para 396] (518-A-C)
30. While rejecting the reliance on certain cases cited in support of
D
the plea of exclusive cognizance vesting in the Legislature, and restriction
of judicial review to the extent offinding the privilege, support is found to
the case set up by the petilioners from constitutional provisions and debates
thereupon which show that it is the duty of the Court to inquire into the
legitimacy of the exercise of the power. [Para 410] (523-A-B)
E
Special Reference No. I of 1964, [1965] l SCR 413 (UP Assembly
case) MS.M. Sharma v. Sri Krishna Sinha, (1959] Supp l SCR 806;
M.S.M. Sharma v. Shree Krishna Sinha, (1961] l SCR 96 Bachan Singh
v. State of Punjab, (1982) 3 SCC 24; Jatish Chandra Ghosh v. Hari
Sadhan Mukherjee, [1961] 3 SCR 486; K. Nagaraj v. State ofA.P., (1985] F
l SCC 523 and T. Ven/r.ata Reddy v. State of A.P., (19851 3 SCC 198,
referred to.
Harvey v. New Brunswick, [1996) 2 SCR 876, referred to.
31. In tlt'e Rajasthan case while dealing with the issues arising out G
of communication by the then Union Home Minister to the nine States
asking them to advise their respective Governors to observe the legislative
assemblies and seek fresh mandate from the people, this court observed
that:
H
340 SUPREME COURT REPORTS [2007] 1 S.C.R.
A "This Court has never abandoned its constitutional function as the
final Judge of constitutionality of all acts purported to be done under the
authority of the Constitution. ... "
The said resolve is reaffirmed and there is no reason why in the facts
and circumstances at hand this court should take a different view so as to
B abandon its constitutional functions as the final judge of constitutionality
of all acts purported to be done under the authority of the Constitution,
though at the same time refraining from transgressing into the sphere that
is properly the domain of the Parliament. +
(Paras 412 & 413] (523-D-E, 524-C]
c State of Rajasthan v. Union of India, (1977] 3 SCC 592, referred to.
32. While it is true that there is no challenge to the Rules of
Procedure and Conduct of Business in Lok Sabha and Rules of Procedure
and Conduct of Business in the Council of States, as made by the two
D Houses of Parliament in exercise of enabling powers under Article 118 (1),
that mere availability of Rules is never a guarantee that they have been duly
followed. [Para 415] (524-F]
33. A controversy similar to the one in the case of S.R Bommai arose
before this Court in Rameshwar Prasad. The questions raised once again
E concerned the validity of the subjective satisfaction of the President under
Article 356 for issue of proclamation. Following the spirit of the judgment
of S.R. Bommai, with due deference to the exceptional character of the
power exercised by the President under Article 356 which cannot be
treated on a par with an administrative action and so the validity whereof
F cannot be examined by applying the grounds available for challenge of an
administrative action, this Court held that the power is not absolute but
subject to checks & balances and judicial review. (Para 429] (530-C-D]
Barium Chemicals Ltd. v. Company Law Board, AIR (1967) SC 295;
Rohtas Industries Ltd. v. S.D. Agarwal, (1969] l SCC 325; S.R Bommai
G v. Union ofIndia, (1994] 3SCC1 and Rameshwar Prasadv. Union ofIndia,
[2006] 2 sec 1, referred to.
34. The Legislature cannot ordinarily be accused of having acted for
an extraneous purpose or being actuated by caprice or malafide intention.
The Court would not lightly presume abuse or misuse of authority by such
H
) RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 341
august bodies also because allowance is always to be given to the fact that A
--- ~~
the legislature is the best Judge in such matters. [Para 4341 [534-B-C)
:;>
35.1. Conclusions cannot be drawn so as to attribute motive to the
t Houses of Parliament by reading statements out of the context. The
relevant part of the speech of the Hon 'ble Speaker made on the floor of the
House on 12th December 2005 has been extracted in the counter affidavit
B
filed on behalf of the Union of India. It is pertinent to note that before stating
-- that 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 nobody would be spared c
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
D
in opposition rather goes to show that the resolve at that stage was to find
the truth. (Para 435) (534-D-F]
,.,, "
35.2. In these circumstances, one is 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 E
respective Committees of the two Houses ~ssentially pertained to the
procedure adopted. 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 that of the
Legislative chamber which being collective body, it is difficult to attribute F
.. ~
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. [Para 436] [534-G-H, 535-A]
36. This Court is 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
G
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 H
342 SUPREME COURT REPORTS [2007] 1 S.C.R.
A around the issue of misconduct attributed to the individual members
·'
bringing the House in disrepute. (Para 438] [535-C-E]
37. This Court already found that the purposes of the procedure
prescribed in both the said provisions of the Constitution are entirely
different. While Article 103 relates to disqualifications prescribed in
B Article 102, the tenth schedule pertains to the disqualification on account
of defection. These provisions have no nexus whatsoever with the exercise
of power of expulsion claimed as a privilege available to the Houses of
Parliament under Article 105(3). [Para 4401 [535-G-H)
C 38. The matters pertaining to the two Members ofRajya Sabha were
referred to the Committee on Ethics which is also a mechanism provided by
the Rules of Procedure and Conduct of Business in the said House. While
it is correct that the matters pertaining to the Members of Lok Sabha were
referred to a Committee specially constituted for the purpose but nothing
turns on that fact. It may be observed that under circumstances in question
D the composition of the Committee itself is sufficient to show that it was not
a partisan Committee. The terms ofreference for the Committee required it
to make investigation into the allegations. The conclusions reached by the
Inquiry Committee and recommendations made have been accepted by passing
of resolutions by the two Houses that have adopted the reports of the
E respective Committees. [Paras 442 & 443] [536-D-F]
39. Article 118 empowers each House of Parliament to make rules
for regulating its procedure. The rules of the procedure of both Houses
permit constitution of Committees. There is no illegality attached to
F constitution of a Special Committee by the Speaker, Lok Sabha for
purposes of investigation into the allegations against members of the said
House. [Para 444] [536-F-G]
G
40. One 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. The request for supply offull-footage of video recordings and
-
audio tapes or extension of time or representation through counsel for such
purposes did not find favour with the Inquiry Committee mainly because the
H Committee had offered to the concerned Members of Lok Sabha an opportunity
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 343
to view the relevant video-footage that was available with the Committee and A
-...--- point out the discrepancies therein. But the petitioners themselves chose to
• turn down the said offer. [Para 446 & 447) [537-E-G]
Jagjit Singh v. State of Haryana & Ors., [WP (C) No. 287 of 2004
decided by S.C. on 11.12.2006), referred to.
B
41.1. 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. [Para 448] [538-A) c
41.2. The reports of the Inquiry Committee of Lok Sabha and the
Committee on Ethics of Rajya Sabha indicate that both of the said
Committees had called for explanations from each of the Members in
question and had given due consideration to the same. The submissions of
the counsel for Union of India that the proceedings of the respective
D
- .,.
Committees were open to one and all, including these petitioners who·
actually participated in the proceedings could not be refuted. Therefore,
it is not permissible to the petitioners to contend that evidence had been
taken behind their back. The reports further show that the Committees had
taken care not to proceed on the edited versions of the video recordings. E
Each of them insisted and procured the raw video-footage of the different
sting operations and drew conclusions after viewing the same. 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 ofRajya Sabha. Dr. Chhattrapal Singh Lodha had sought
F
.....~ 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 that unanimously found his complicity in
unethical behavior on account of acceptance of money for tabling questions
in Rajya Sabha. Dr. Swami Sakshiji Maharaj, on the other hand, went to
the extent of expressing his regrets and displaying a feeling of shame for G
his conduct even before the Committee on Ethics. [Para 449) [538-B-F]
42. The impugned resolutions of Lok Sabha and Raj ya Sabha cannot
>~
be questioned before this Court on the plea of proportionality. This Court
is not sitting in appeal over the decision of the Legislative chambers with H
344 SUPREME COURT REPORTS (2007] 1 S.C.R.
A regard to the extent of punishment that deserved to be meted out in cases
of this nature. That is a matter which must be left to the prerogative and
sole discretion of the legislative body. All the more so because it is the
latter which is the best Judge in exercise of its jurisdiction the object of
which is self-protection. So long as the orders of expulsion are not illegal
or unconstitutional, this Court not concerned with the consequences for the
B
petitioners on account of these expulsions. [Para 451] [538-H, 539-A-B]
43. In these proceedings, this Court cannot 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
C 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. It is found 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
D the petitioners have not raised any issue of fact. [Para 452] [539-C-D]
44. On perusal of the Inquiry reports, it is found that there is no
violation of any of the fundamental rights in general and Articles 14, 20
or 21 in particular. Proper opportunity to explain and defend having been
given to each of the petitioners, the procedure adopted by the two Houses
E 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.
[Para 453] [539-E]
F C.K. THAKKER, J: (Supplementing) :
1.1. Though all the three expressions, viz. powers, privileges and
immunities are invariably used in almost all Constitutions of the world, they
are different in their meanings and also in contents. [Para 8] [541-B]
G 1.2. 'Power' means 'the ability to do something or to act in a
particular way'. It is a right conferred upon a person by the law to alter,
by his own will directed to that end; the rights, duties, liabilities or other
legal relations either of himself or of other persons. It is a comprehensive
word which includes procedural and substantive rights which can be
exercised by a person or an authority. [Para 9) [541-B-C] t-
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABR \ 345
~~ 1.3. 'Privilege' is a special right, advantage or benefit conferred on A
a particular person. It is a peculiar advantage or favour granted to one
person as against another to do certain acts. Inherent in the term is the ,. ·
idea of something, apart and distinct from a common right which is enjoyed
by all persons and connotes some sort of special grant by the sovereign.
(Para 10) (541-D] B
1.4. 'Immunity' is an exemption or freedom from general obligation,
duty, burden or penalty. Exemption from appearance before a court oflaw
or other authority, freedom from prosecution, protection from punishment,
etc. are immunities granted to certain persons or office bearers.
[Para 11) [541-E] C
1.5. Elected representatives, however, are not placed above the law by
way of parliamentary privileges; they are simply granted certain advantages
and basic exemptions from legal process in order that the House may
function independently, efficiently and fearlessly. This is in the interest
of the nation as a whole. (Para 17) [543-E) D
Powers, Privileges and Immunities of State Legislatures, Article 143,
Constitution ofIndia, Re, (1965) 1SCR413: AIR (1965) SC 745, referred
to.
Sir Erskin May: Treatise on The Law, Privileges, Proceedings and E
Usage of Parliament (23rd Edn.) p. 75; Halsbury's Laws of England, (4th
Edn.; Reissue, Vol. 34; p. 553; para 1002) and Parliamentary Privilege,
First Report (Lord Nicholas Report), referred to.
2. In the United States, the House possesses the power of observance F
of discipline by its members and in appropriate cases, such power extends
to expulsion. It is also clear that such power has been actually exercised
for disorderly behavior in the House as also outside the House, where the
House was satisfied that the member was 'unfit' physically, mentally or
morally even if such conduct could not be a 'statutable offence' or was not
committed by him in his official capacity or during House in Session or at G
the seat of Government. [Para 32) [548-B-C)
Chapman, Re, 166 US 661 (1891) : 41 L Ed 2nd 1154; Julian Bond
v. James Sloppy Floyd, 385 US 116 (1966): 17 L Ed 2nd 235; Powell v..
McCormack, 395 US 486 (1969): 23 L Ed 2nd 491; H Snowden Marshall
H
y
346 SUPREME COURT REPORTS [2007] 1 S.C.R.
A v. Robert B. Gordon, 243 US 521 (1917); Kie/ley v. Carson, (1842) 4 MOO
PC 63 : 13 ER 225 and United States v. Daniel Brewster, 408 US 501 :
(1972) 33 L Ed 2nd 507, referred to.
Cooley: Treatise on the Constitutional Limitations', (1972 Edn., p.
133); Willoughby: Constitutional Law of the United States (Second Edn.;
B p. 256); Pritchett: American Constitution (Third Edn., p. 146); American
Jurisprudence (Second Edn., Vol. 77, p. 21) and Enid Campbell:
Parliamentary Privilege in Australia dealing with 'Expulsion', referred to.
+
3. In Australia, only recently, the power to expel a member from the
C House has been taken away by a specific statute. (Para 40] (550-C)
Enid Campbell: Parliamentary Privilege in Australia dealing with
'Expulsion'; Odger: Australian Senate Practice, (11th Edn.; p. 57) and
Lumb and Ryan: The Constitution ofthe Commonwealth ofAustralia, 1974
Edn., referred to.
D
4. Unlike India, in Canada, the Legislature could not enlarge its
privileges by enacting a law investing in it the privileges enjoyed by British "''·"'
Parliament. There is no such limitation under Section 49 of the Australian
Constitution nor under Article 105(3) or Article 194(3) of the Indian
E Constitution. Inspite of the above provision in the Constitution, the right
of the House to expel a member has never been challenged. [Paras 42 &
43] (550-G-H, 551-A]
Speaker of the House of-Jissembly v. Canadian Broadcasting
Corporation, (1993] 1 SCR 319;:~$tockdale v. Hansard, [1839] 9 Ad & E
F
1 : 112 ER 1112 (QB); Kie/fey'~': c;~son, (1842], 4 MOO PC 63 : 13 ER
225; Fred Harvey v. Attorney General for New Brunswick, [1996] 2 SCR
876 and House of Commons v. Satnam Vaid, (2005) 1 SCR 667, referred
to.
G Sir John George Bourinot: Parliamentary Procedure and Practice in
the Dominion of Canada, (4th Edn., p. 64), referred to.
5.1. 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
H evolution of English Parliamentary institution has thus historical
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 347
-"i
development. It is the story of conflict between Crown's absolute prerogatives A
and Commons' insistence for powers, privileges and immunities; struggle
between high handed actions of Monarchs and People's claim of democratic
means and methods. Parliamentary privileges are the rights which Houses
of Parliament and members possess so as to enable them to carry out their
functions effectively and efficiently. Some of the parliamentary privileges
thus preceded Parliament itself. They are, therefore, rightly described by
B
Sir Erskine May as Jundamental rights' of the House as against the
prerogatives of the Crown, the authority of ordinary Courts of Law and the
special rights of the House of Lords. [Para 62] [557-C-E]
5.2. Initially, the House simply claimed privilege. They neither made C
request to the Crown for their recognition nor to Courts for their
enforcement. Parliamentary privileges in that sense are outside the law, or
a law unto themselves. For instance, the House would not go to Crown or
to Court for release of its member illegally detained. It would also not pray
for a writ of habeas corpus. It would simply command the Sergeant-at-
D
Arms with the ceremonial mace to the prison and get the Member release~
on its own authority. [Para 63) [557-E-F]
Ann Lyon : 'Constitutional history of the United Kingdom, [2003) p.
39; Holdsworth: A History ofEnglis_l;z Law, Second Edition, pp. 92-93 and
Halsbury's Laws ofEngland, (Fourth Edn.; Reissue: Vol. 34; p. 569; para E
1026, referred to.
6. The two things, namely, (i) expulsion; and (ii) disqualification are
different and distinct. A member can be expelled by the Legislature if his
conduct renders him 'unfit' to continue as such. It, however, does not ipso
F
facto disqualify him for re-election. An expelled member may be re-elected
and no objection can be raised against his re-election, as was the case of
John Wilkes in 1769. [Para 68) [558-H, 559-A]
0. Hood Phillips: 'Constitutional and Administrative Law', 4th Edition;
p. 180; Wade and Phillips: 'Constitutional Law', 7th Edition; p.793; Sir G
William Anson: "The Law and Custom ofthe Constitution", Fifth Edn; Vol.
I; pp. 187-88; Griffith and Ryle: "Parliament, functions, practice and
procedures", (1989), at p. 85 and Sir Erskine May: 'Treatise on the Law,
Privileges, Proceedings and Usage of Parliament', referred to.
H
•
.. r
:/« -
-'r
348 SUPREME COURT REPORTS [2007] 1 S.C.R.
f--
A 7. Keilley has no application inasmuch as it was decided in the light
of factual, political and legal background which was totally different. For
more than one reason, the ratio in Keilley cannot be pressed in service in
the case on hand. Firstly, India, after 1950, cannot be termed as a 'colonial
country' nor its Legislature Colonial or subordinate. Secondly, it was not
to derive powers, privileges or prerogatives from the Crown either expressly
B or impliedly. Thirdly, after January 26, 1950, it is the written Constitution
which has conferred powers, privileges and immunities on Parliament/
·•-
Legislatures and on their members. Fourthly, provisions of the Constitution
themselves expressly conferred certain powers, privileges and immunities
[Arts.105(1), (2); 194 (1), (2)]. It also allowed Parliament to define them by
c making an appropriate law and declared that until such law is enacted, they
would be such as exercised by British Parliament on January 26, 1950
[Arts. 105(3), 194(3)]. Fifthly, the crucial question is not the fact that the
Assembly of Newsouthland had no right to commit a person for contempt
but whether or not the British Parliament possessed such power on
January 26, 1950. Sixthly, Keilley was not a member of Assembly and as
D
such the ruling in that case has no direct bearing on the issue raised
,.,.)....
before this Court. Finally, Keilley was a case of committal of a person to
'
jail and keeping in view the fact situation, the Privy Council decided the
matter which is absent here. For all these reasons, reliance on Keilley is
of no assistance to the petitioners. [Para 109] [569-H, 570-A-D]
E
Bradlough v. Gossett, [1884] 12 QBD 275; Stockdale v. Hansard,
(1839) 9 Ad & E 1 : 112 ER 1112 (QB); Edward Keilley v. William Carson,
(1842) : 4 MOO PC 63 : 13 ER 225 and Beaumont v. Barrett, (1836) 1
MOO PC 80, referred to.
F
8. An interesting point of law, which has been raised before this Court
was also raised before the Supreme Court of New South Wales in Armstrong
v. Budd, [1969] 71SR386 (NSW). Section 19 of the Constitution Act, 1902
laid down that in certain circumstances, a seat in the Legislative Council
would automatically fall vacant. A was a member of Legislative Council
G against whom a suit was filed. During the course of litigation, he gave
evidence. The evidence was disbelieved by the Court and in the judgment,
certain strictures were passed by the trial Judge. The Legislative Council, r~
on the basis of comments and adverse observations, passed a resolution and
expelled A from the Council and declared his seat vacant. A sought a
H declaration that the resolution was ultra vires. It was contended by A that
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 349
since his case was not covered by any of the eventualities enumerated in A
Section 19, he could not be disqualified. The Court, however, negatived the
contention. [Paras 114 & 115) [571-H, 572-A-C)
Thomas William Doyle v. George Charles Falconer, [1866) LR 1 PC
328; Barton v. Taylor, (1886] ll AC 197 and Armstrong v. Budd, [1969)
71 SR 386 (NSW), referred to. B
Broom's Legal Maxims, 10th Edn; p. 314, referred to.
9.1. It is no doubt true that the existing law relating to parliamentary
privileges iP India is essentially of English origin. But the concept of
parliamentary privileges was not unknown to ancient India. Prititosh Roy
c
in his work 'Parliamentary Privilege in India' (1991) states that even
during Vedic times, there were two assemblies; Sabha and Samiti which
were keeping check on all actions of the King. Reference of Sabha and
Samiti is found in all Vedas. In Buddhist India, there was a developed
parliamentary system. Members were not allowed to disobey directions of D
Assemblies. Offenders were answerable to Assemblies and after affording
an opportunity to them, appropriate actions used to be taken against erring
officers. It has thus 'rudimentary features' of parliamentary privilege of
today. [Para 119) (583-C-E)
E
9.2. During 1915-50, there was remarkable growth and development
of Parliamentary privileges in India. For the first time, a limited right of
freedom of speech was conferred on the Members of Legislature by the
Government oflndia Act, 1919 (Section 67). By the Legislative Members
Exemption Act, 1925, two parliamentary privileges were allowed to Members;
(i) exemption from jury service; and (ii) freedom from arrest. The F
Government of India Act, 1935 extended the privileges conferred and
immunities granted. The Indian Independence Act, 1947 accorded sovereign
legislative power on the Indian Dominion.
[Paras 121 and 122) l583-G-H, 584-A]
G
10. There are certain instances wherein Indian Parliament has
exercised the power of expulsion of its members. (Para 126) [587-G]
Kaul and Shakhder: 'Practice and Procedure of Parliament', (5th
Edn., p. 262), rl!ferred to.
H
350 SUPREME COURT REPORTS [2007] 1 S.C.R
A 11. The right to expel a member is distinct, separate and independent
of right to provide for the due constitution or composition of the House and
even in absence of such power or prerogative., right of expulsion is
possessed by a Legislature (even a Colonial Legislature), which in
appropriate cases can be exercised. [Para 165) [602-F-G)
B
MS.M Sharma v. Shri Sri Krishna Sinha & Ors., [1959) Supp 1 SCR
806 : AIR (1959) SC 395; Re: Powers, Privileges and Immunities of State
+
Legislatures, Article 143 of the Constitution, (1965] 1 SCR 413 : AIR
(1965) SC 745; Raj Narain v. Atmaram Govind & Anr., AIR (1954) All
319; Yeshwant Rao Meghawale v. Madhya Pradesh Legislative Assembly
c & Ors., AIR (1967) MP 95; Hardwari Lal v. Election Commission ofIndia,
ILR (1977) 2 P & H 269 (FB) and K. Anbazhagan & Ors. v. Secretary, Tamil
Nadu Legislative Assembly, Madras & Ors., AIR (1988) Mad 275, referred
to.
(
I ,
D 12. When draft Article 85 (Present Article 105) was considered, •'
different view-points were before the House. It was also aware of various
Constitutions, particularly, Constitutions of Canada and Australia.
The Members expressed their views, made suggestions and sought
amendments and finally, the draft Article 85 was approved as amended.
E [Para 169) [605-C-D]
13.1. Likewise, when draft Article 169 (Present Article 194) came up
before the House on June 3, 1949, again, the matter was discussed at
length. [Para 170) [605-E]
F 13.2. The Constitution Assembly debates clearly and unequivocally
indicates that the Members of the Constitution wanted Parliament (and
State Legislatures) to retain power and privileges to take appropriate
action against any individual member for 'anything that has been done by
him' which may bring Parliament or Legislative Assembly into 'disgrace'.
Therefore, it cannot be said that the Founding Fathers of the Constitution
G were not aware or never intended to deal with individual misdeeds of
members and no action can be taken by the Legislature under Article 105
or 194 of the Constitution. [Para 173) 607-H, 608-A)
14. We have a written Constitution which confers power of judicial
H review on this Court and on all High Courts. In exercising power and
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 351
discharging duty assigned by the Constitution, this Court has to play the A
role of a 'sentinel on the qui vive' and it is the solemn duty of this Court
to protect the fundamental rights guaranteed by Part III of the Constitution
zealously and vigilantly. [Para 182] [611-E-F]
Ashby v. White, (1704) 14 St Tr 695; Stockdale v. Hansard, [1839]
B
9 Ad & E 1 : 112 ER 1112 and Bradlaugh v. Gossett, [1884] 12 QBD 271:
53 LJQB 200, referred to.
Anson: 'The Law and Custom ofthe Constitution', 5th Edn.; Vol. I; pp.
190-99; Halsbury's Laws ofEngland, (4th Edn., Reissue, Vol. 34; pp. 553-
54; paras 1004-05 and Holdsworth: 'A History ofEnglish Law' (Vol. I; pp. C
393-94), referred to.
15. This Court cannot be oblivious or unmindful of the fact that the
Legislature is one of three organs of the State and is exercising powers under
the same Constitution under which this Court is exercising the power of D
judicial review. It is, therefore, the duty of this Court to ensure that there
is no abuse or misuse of power by the Legislature without overlooking
another equally important consideration that the Court is not a superior
organ or an appellate forum over the other constitutional functionary. This
Court, therefore, should exercise its power of judicial review with utmost
care, caution and circumspection. [Para 184] (612-B-C] E
R. v. Her Majesty's Treasury, ex parte Smedley, 1985 QB 657, 666,
referred to.
16. In Searchlight as well as in Keshav Singh, it has been observed F
that there is no doubt that Parliament/State Legislature has power to
punish for contempt, which has been reiterated in other cases also. But
- what has been held is that such decision of Parliament/State Legislature
is not 'final and conclusive'. This Court in all earlier cases held that in
view of power of judicial review under Articles 32 and 226 of the Constitution, G
the Supreme Court and High Courts have jurisdiction to decide legality or
otherwise of the action taken by State-authorities and that power cannot be
taken away from judiciary. There lies the distinction between British
Parliament and Indian Parliament. Since British Parliament is also 'the
High Court of Parliament', the action taken or decision rendered by it is
H
352 SUPREME COURT REPORTS [2007) 1 S.C.R.
-
r---·
A not open to challenge in any court of law. This is based on the doctrine
that there cannot be two parallel courts, i.e. Crown's Court and also a Court
of Parliament ('the High Court of Parliament') exercising judicial power
in respect of one and the same jurisdiction. India is a democratic and
republican State having a written Constitution which is supreme and no
organ of the State (Legislature, Executive or Judiciary) can claim sovereignty
B or supremacy over the other. Under the said Constitution, power of judicial
review has been conferred on higher judiciary (Supreme Court and High
Courts). The said power is held to be one of the 'basic features' of the
Constitution and, as such, it cannot be taken away by Parliament, even by
an amendment in the Constitution. [Para 187] [612-G-H, 613-A-D]
c
MS.M Sharma v. Shri Sri Krishna Sinha & Ors., [1959) Supp 1 SCR
806 : AIR (1959) SC 395; Re: Powers, Privileges and Immunities of State
Legislatures, Article 143 of the Constitution, (1965) 1 SCR 413 : AIR
(1965) SC 745; State of Karnataka v. Union of India, [1977] 4 SCC 608;
P. V. Narasimha Rao v. State, [1998) 4 SCC 626; Sambamurthy v. State
D
of A.P., [1987] 1 SCC 362 : AIR (1987) SC 663; Kesavananda Bharti v.
State of Kera/a, (1973] 4 SCC 225 : AIR (1973) SC 1461; Indira Nehru
Gandhi v. Raj Narain, (1975) Supp SCC 1 : AIR (1975) SC 2299; Minerva
Mills Ltd. v. Union of India, [1980) 3 SCC 625 : AIR (1980) SC 1789;
L. Chandra Kumar v. Union of India, [1987) 1 SCC 124 : (1987) 1 SCC
E 124 : [1987) 1 SCR 435 and Kihoto Hollohon v. Zachilhu, [1992) Supp 2
SCC 651 : AIR (1993) SC 412, referred to.
17. It has been held in several cases that an action of Parliament/State
Legislature cannot claim 'total immunity' from judicial review. In fact, this
F argument had been put forward in Keshav Singh which was negatived
by this Court. It was opined that an aggrieved party may invoke the
jurisdiction of the High Court under Article 226 or of the Supreme Court
under Article 32 of the Constitution. That, however, does not mean that
.i
while exercising extraordinary jurisdiction under the Constitution, the
powers of the courts are absolute, unlimited or unfettered. The Constitution
G which conferred power of judicial review on the Supreme Court and High
Courts, with the same pen and ink provided that the validity of proceedings
in Parliament cannot be called in question on the ground of 'irregularity
in procedure'. It is, therefore, the duty of this Court to give effect to the
said provision and keeping in view the limitation, exercise the power of
H judicial review. [Para 188) [613-F-H, 614-A)
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 353
Re: Powers, Privileges and Immunities of State Legislatures, Article A
143 of the Constitution, (1965] 1 SCR 413 : AIR (1965) SC 745, referred
to.
18. In the instant cases, the Court is called upon to answer a limited
question whether Parliament can expel a member. Even a Colonial
Legislature having limited privileges possesses the power to expel a B
...
member if his conduct is found to be not befitting a member of Legislature.
If it is so, it goes without saying that Indian Parliament, which has
undoubtedly much more powers than a Colonial Legislature, can take such
action and it cannot be successfully contended that Parliament does not
possess the power to expel a member. (Para 189] (614-B-C] c
19. Every legislative body-Colonial or Supreme--possesses power to
regulate its proceedings, power of self-protection, self-preservation and
maintenance of discipline. It is totally different and distinct from the power
to provide the constitution or composition which undoubtedly not possessed
by Indian Parliament But every legislative body has power to regulate its D
proceedings and observance of discipline by its members. In exercise of that
power, it can suspend a member as also expel him, if the circumstances
warrant or call for such action. It has nothing to do with disqualification
and/or vacation of seat. In fact, a question of expulsion arises when a
member is not disqualified, his seat has not become vacant and but for such E
expulsion, he is entitled to act as a member of Parliament.
[Para 191] (614-F-H]
20. Parliament, like the other organs of the State, is subject to the
provisions of the Constitution and is expected, nay, bound to exercise its
powers in consonance with the provisions of the Constitution. But it cannot F
be held that the power to expel a member is a carte blanche in nature and
Parliament has no authority to expel any member. Parliament can take
appropriate action against erring members by imposing appropriate
punishments or penalties and expulsion is one of them. Under our
Constitution, every action of every authority is subject to law as nobody is G
above law. Parliament is not an exception to this 'universal' rule. It is,
therefore, open to an aggrieved party to approach this Court raising
grievance against the action of Parliament and if the Court is satisfied
within the limited parameters of judicial review that the action is
unwarranted, unlawful or unconstitutional, it can set aside the action. But
H
354 SUPREME COURT REPORTS [2007] 1 S.C.R.
A it is not because Parliament has no power to expel a member but the action
was not found to be in consonance with law. [Para 192) [615-C-E]
Ahmedabad St. Xavier's College Society & Anr. v. State of Gujarat &
Anr., [1975) 1 SCR 173 : [1974) 1 sec 717 : AIR (1974) SC 1389,
referred to.
B
21.1. Taking into account serious allegations against some of the
.
members of the House, Parliament decided to inquire into correctness or +-
otherwise of the charges by constituting an 'Inquiry Committee'. The
members were asked to offer their explanation and considering the evidence
c and material on record, the Committee appointed by Parliament decided the
matter. It, therefore, cannot be said that the case is covered by exceptional
part of clause (1) of Article 122. It cannot be overlooked that this Court
is exercising power of 'judicial review', which by its nature limited to
serious infirmities of law or patent illegalities. It cannot, therefore,
enter into sufficiency of material before the authority nor can substitute
D its own opinion/finding/ decision for the opinion/finding/decision arrived at
by such authority. Hence, even ifthere is any irregularity in adopting the "' )..,.
procedure or in appreciating evidence by the Committee or in approving the
decision by Parliament, it squarely falls under the 'protective umbrella' of
Artide 122(1) of the Constitution and this Court cannot interfere with the
E decision in view of the constitutional protection granted by the said
provision. [Para 199) [617-E-H]
21.2. Neither the Committee appointed by Parliament can be said to
be a 'Court' stricto sensu, nor it is bound by technical rules of evidence or .
procedure. It is more in the nature of 'fact-finding' inquiry. Since the
F dignity, decorum and credibility of Parliament was at stake, the Committee
was appointed which was required to act with a view to restore public faith,
confidence and honour in this august body without being inhibited by
procedural im'pediments. [Para 200) [618-A-B]
Pandit MS.M Sharma v. Shree Krishna Sinha & Ors. (Pandit Sharma
G
II); [1961) 1 SCR 96 : AIR (1960) SC 1186 and Kihoto Hallahan v.
Zachil!hu & Ors., [1992) Supp 2 SCC 651, 711, referred to.
Constituent Assembly Debates : Vol.VIII; pp. 199-201), referred to.
H 22. So far as principle of law is concerned, it is well-settled and cannot
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 355
be disputed and is not challenged. However, in the facts of the case, it cannot A
successfully be contended that there is breach or non-observance of natural
justice by the Committee. Reading of the Reports makes it clear that adequate
opportunity had been afforded to the petitioners and thereafter the action was
taken. Notices were issued to the members, CDs were supplied to them,
evidence of witnesses was recorded, defence version was considered and
'findings and conclusions' were reached. (Para 203] (619-B-C] B
Kihoto Hollohon v. Zachilhu, [1992) Supp 2 SCC 651 : AIR (1993)
SC 412 and Maneka Gandhi v. Union of India, [1978] 1 SCC 248 : AIR
(1978) SC 597, referred to.
23. What was stated by the Hon'ble Speaker was that "if anybody is
c
guilty, he would be punished. Nobody would be spared". In other words, an
assurance was given by the Hon'ble Speaker to the members of august body
that an appropriate action will be taken without considering the position or
status of an individual member and if he is found guilty, he will not be
spared. The statement is a responsible one, expected of the Hon'ble Speaker D
of an august body of the largest democracy. There is nothing in the above
statement from which it can be concluded that the issue had already been
decided even before the Committee was constituted and principles of natural
justice were violated. [Para 213) [625-H, 626-A-B]
E
24. It is well settled that Parliament has power to take up the matter
so far as privileges are concerned and it can take an appropriate action in
accordance with law. If it feels that the case of 'Cash for query' was made
out and it adversely affected honesty, integrity and dignity of the House, it
is open to the House to attempt to ensure restoration of faith in one of the
pillars of democratic polity. [Para 222] [627-E-FJ F
Sir Erskine May: 'Corruption or impropriety' and Hilaire Burnett:
'Constitutional and Administrative Law', Fourth Edn.; pp. 571-72, referred
to.
25. It cannot be gainsaid that expulsion of a member is a grave G
measure and normally, it should not be taken. Parliament could have taken
a lenient view as suggested on behalf of the petitioners. But it cannot be
accepted as a proposition of law that since such action results in deprivation
of constituency having its representation in the House, a member can never
be expelled. If representation of the constituency is taken to be the sole H
356 SUPREME COURT REPORTS [2007] 1 S.C.R.
A consideration, no action can be taken which would result in absence of
representation of such constituency in the House. Such interpretation
would make statutory provisions (the Representation of the People Act,
1951) as also constitutional scheme (Articles 84, 102, 190, 191, 192,
Tenth Schedule, etc.) non-workable, nugatory and otiose. If a member is
disqualified or has been convicted by a competent court, he has to go and
B at least for the time being, till new member is elected, there is no
representation of the constituency in the House but it is inevitable and
cannot be helped. There is one more aspect also. Once it is conceded that
an action of suspension of a member can be taken (and it was expressly
conceded), there is no reason why in principle, an action of expulsion is
C impossible or illegal. In a given case, such action may or may not be lawful
or called for, but in theory, it is not possible to hold that while the former
is permissible, the latter is not. If it is made referable to representation of
the constituency, then as observed in Raj Narain, withdrawal of a member
from the House even for a brief period is a serious matter both for the
member and his constituency. Important debates and votes may take J.?lace
D
during his absence even if the period be brief and he may not be able to
present his view-point or that of the group or that of the constitudhcy he
represented. It is, however, in the nature of disciplinary or punitive action
for a specific parliamentary offence, namely, disorderly behaviour. Moreover,
if the House has a right to expel .a member, non-representation of the
E constituency is merely a consequence, nothing more.
[Paras 225 & 226] (628-E-H, 629-A-C]
26.1. Even in England, where Parliament is sovereign and supreme
and can do everything but 'make woman a man and a man a woman', no
F member of Parliament has ever been expelled on the ground of 'ugly face'.
And not even a single incident has been placed before this Court to
substanti:::te the extreme argument. Even Maitla~d himself has not noted
any such instance. On the contrary, he had admitted that normally, the
power of expulsion can be exercised for iffegalities or misconduct of a
serious nature. (Para 228] [629-F-G)
G
26.2. It is well-established principle of law that the mere possibility
or likelihood of abuse of power does not make the provision ultra vires or
bad in law. There is distinction between existence (or availability) of power
and exercise thereof. Legality or otherwise of the power must be decided by
H considering the nature of power, the extent thereof, the body or authority
y
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 357
on whom it has been conferred, the circumstances under which it can be A
exercised and all other considerations which are relevant and germane to
the exercise of such power. A provision of law cannot be objeded only on
the ground that it is likely to be misused. [Para 229) [629-H, 630-A-B]
State of Rajasthan v. Union of India, [1977) 3 SCC 592, 658 : AIR
(1977) SC 1361 and Ajit Kumar Nag v. Indian Oil Corporation, [2005) 7
B
- sec 764, referred to.
Providence Bank v. A/phens Billings, 29 US 504 (1830) : 7 Law Ed
939, referred to.
c
27. By and large, constitutional functionaries in this country have
admirably performed their functions, exercised their powers and discharged
their duties effectively, efficiently and sincerely and there is no reason to
doubt that in coming years also they would continue to act in a responsible
manner expected of them. Not only all the constituents of the State will D
keep themselves within the domain of their authority and will not encroach,
trespass or overstep the province of other organs but will also act in
preserving, protecting and upholding the faith, confidence and trust reposed
in them by the Founding Fathers of the Constitution and by the people of
this great country by mutual regard, respect and dignity for each other. On
the whole, the situation is satisfactory and there is no reason to be E
disappointed for future. [Para 234] [631-G-H, 632-A-B]
RA VEENDRAN J. (Dissenting) :
1.1. There is no power of expulsion in the Parliament, either inherent F
or traceable to Article 105(3). Expulsion by the House will be possible only
if Article 102 or Article 101 is suitably amended or if a law is made under
Article 102(1)(e) enabling the House to expel a member found unworthy or
unfit of continuing as a member. [Para 36) [659-H, 660-A]
1.2. The action of the two Houses of Parliament, expelling G
the petitioners is violative of Articles 101 to 103 of the Constitution and
therefore invalid. Petitioners, therefore, continue to be Members of
Parliament (subject to any action for cessation of their membership).
[Para 37} [660-B-C]
H
358 SUPREME COURT REPORTS [2007] I S.C.R 1
'
A State of Rajasthan v. Union of India, AIR (1977) SC 1361;
Kesavananda Bharati v. State of Kera/a, [1973] 4 SCC 225; Sub-
Committee on Judicial Accountability v. Union of India, .[1991) 4 SCC
699; Re. the C.P and Berar Sales of Motor Spirit & Lubricants Taxation
Act, 1938 -- the Central Provinces case, AIR (1939) FC 1; Atiabari Tea
Co. Ltd. v. State ofAssam, AIR (1961) SC 232; M.P V. Sundaramier & Co.
B v. State ofAndhra Pradesh AIR (1958) SC 468 and Automobile Transport
Ltd. v. State of Rajasthan, AIR (1962) SC 1406, relied on.
Re: Art. 143, Constitution of India and Delhi Laws Act, AIR (1951)
SC 332; Special Reference No. I of 1964, UP Assembly Case, [1965) 1 SCR
c 413; Mary Roy v. State of Kera/a, (1986] 2 SCC 209; Chhabildas Mehta
v. The Legislative Assembly, Gujarat State, (1970 Guj.LR 729] and Hardwari
Lal v. The Election Commission of India, (1977 (2) Punj. & Har. 269],
referred to.
Clarke v. Bradlaugh, (1881] 8 QBD 63, referred to.
D
2. The Constitution-makers have made detailed and specific
-provisions regarding the manner in which a person becomes a Member of
Parliament (elected/nominated), the duration for which he continues as a
member and the manner in which he ceases to be a member and his seat
E becomes vacant. Therefore neither the question of election or nomination,
nor tenure, nor cessation/termination of membership of the House covered
by the express provisions in the Constitution, can fall under 'other powers,
privileges and immunities' of the House mentioned in Article 105(3).
[Para 31] [658-C-D]
F 3. The Constitution makes express provisions for election/appointment
and removal/cessation of service of the Executive (President and
Vice-Pre:>ident), Judiciary (Judges of the Supreme Court and High
Court) and all other constitutional functionaries (Attorney General, Auditor
and Comptroller General, Chief Election Commissioner etc.). It is
therefore inconceivable that the Constitution-makers would have omitted
G
to provide for 'expulsion' as one of the methods of cessation of membership
or consequential vacancy, if it intended to entrust such power to the
Parliament (Para 32] (658-E-F]
4. In view of the express provisions in the Constitution, as to when a
H person gets disqualified to be a member of either House of Parliament (and
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 359
thereby ceases to be a member) and when a consequential vacancy arises, A
it is impermissible to read a new category of cessation of membership by
way of expulsion and consequential vacancy, by resorting to the incidental
powers, privileges and immunities referred to in Article 105.
(Para 33) (658-G)
5. Clause (3) of Article 105 opens with the words 'in other respects'. B
The provision for 'powers, privileges and immunities' in clause (3) occurs
after referring to the main privilege of freedom of speech in Parliament,
in clause (1) of Article 105, and the main immunity against court
proceedings in clause (2) of Article 105. Therefore, clause (3) is intended
to provide for 'non-main' or 'incidental' or miscellaneous powers, privileges
and immunities which are numerous to mention. Two things arc clear from
c
clause (3). It is not intended to provide for the matters relating to nomination/
election, term of office, qualifications, disqualification/cessation, for which
express provisions are already made in Articles 80, 81, 83, 84, 101 and
102. Nor is it intended to provide for important privilege of freedom of
speech or important immunity from court proceedings referred to in D
Clause (1) and (2) of Article 105. By no stretch of imagination, the power
to expel a member can be considered as an 'incidental' matter. If such a
power was to be given, it would have been specifically mentioned.
[Para 34J [658-H, 659-A-C, E]
Special Reference No.I of 1964, UP Assembly Case, (1965) 1 SCR E
413, relied on.
6. The appropriate course in case of allegation of corruption
against a Member of Parliament, is to prosecute the member in
accordance with law. The immunity under Article 105(2) may not be
available, as the decision in P. V.Narasimha Rao v. State recognizes immunity F
to a member who is a bribe taker only where the 'bribe' is taken in respect
of a 'vote' given by him in Parliament and not otherwise. Such cases can
be fast tracked. Pending such criminal proceedings, the member can be
suspended temporarily, if necessary, so as to prevent him from participating
in the deliberations of the Houses. On being tried, if the member is
G
convicted, he becomes disqualified for being or continuing as a Member
under Article 102(1)(e). If he is acquitted, he is entitled to continue as a
member. Though it may sound cumbersome, that apparently is what the
Constitution intends. [Para 35) [659-F-GJ
P. V. Narasimha Rao v. State, [1998) 4 SCC 626, relied on. H
t
360 SUPREME COURT REPORTS [2007] 1 S.C.R.
/---
A CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 1 of2006. .--
(Under Article 32 of the Constitution of India)
WITH
TC (C) Nos. 82/2006, 83/2006, 84/2006, 85/2006, 86/2006, 87/2006, 88/
B 2006, 89/2006, 90/2006 and WP(C) No. 129/2006.
Gopal Subramanian, ASG, Dayan Krishan, Gautam Narayan, Satyakam,
T. S. Murthy, Raghenth Basant, Aman Ahluwalia, Arunav Patnaik, Abhishek
Tiwati and D.S. Mahra for Attorney General for India.
C Ram Jethmalani, P.N. Lekhi, T.R. Andhyarujina, Sr. Advs. Dr. Krishan 'i
Singh Chauhan, Dr. Indra Pratap Singh, Gyan Mitra, Chand Kiran, P.K.
Jayakrishnan, K.C. Lamba, Sudha Pal, V.K. Shukla, Nischal Kumar Neeraj,
Ashish Tripathi, K.K. Mohan, Nawal Kishore Jha, M.P. Jha, Harshvardhan
Jha, Ram Ekbal Roy, Rani Jetmalani, Harish Pandey, Samar Bansal, Abhik
Kumar, P.R. Mala, Raj iv Kumar Ti~ari, Rajesh Kumar, Sanjai Kumar Pathak,
D Devvrat, Harish Pandey, Rajeev Kumar Tiwari, Lata Krishnamurti, Sachin
Jain, Mukesh Kumar Tripathi, Lokesh Kumar, Sanjay Kumar Pathak, Jaspreet
S. Rai, Rakesh Kumar, M.K. Garg, Meenakshi Arora, S.K. Mehndiratta,
Pranav Sen, S.W.A. Qadri, Ashis Chugh, Gaurav Agarwal, Satyakam, D.S.
Mahra, R.M. Sharma and Sushma Suri for the appearing parties.
E The Judgments of the Court were delivered by
Majority Judgment by Hon'ble the Chief Justice alungwith Hon'ble Mr.
Justice K.G. Balakrishnan, Hon'ble Mr. Justice C.K. Thakker and Hon'ble Mr.
Justice D.K. Jain.
Dissenting Judgment by Hon'ble Mr. Justice R.V. Raveendran.
F
Order of the Hon'ble Court. ,.
Y.K SABHARWAL, CJI.:
''
Factual Backgrounds :
G
1. The interpretation of Article 105 of Constitution of India is in issue
I
in these matters. The question is whether in exercise of the powers,
privileges and immunities as contained in Article 105, are the Houses of .
i
r-r.-
Parliament competent to expel their respective Members from membership of
the House. If such a power exist~, is it subject to judicial review and if so,
H the scope of such judicial review.
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 361
2. The unfortunate background in which the aforesaid questions have A
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 teleeast:a programme on 12th December, 2005
depicting 10 MPs of House of People (Lok Sabha) and one of Council of B
States (Rajya Sabha) accepting money, directly or through middleman, as
consideration for raising certain questions in the House or for otherwise
1
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 C
telecast a programme on 19th December, 2005 alleging improper conduct of
another MP of Raj ya Sabha in relation to the implementation of Member of
Parliament Local Area Development Scheme ('MPLAD' Scheme for short).
This incident was also referred to a Committee.
4. The Report of the inquiry concluded, inter alia, that the evidence D
against the 10 members of Lok Sabha 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
E
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 F
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 Lok Sabha finding that their continuance as Members of the G
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 Jaw, 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.
H
362 SUPREME COURT REPORTS [2007] I S.C.R
A 5. On the Report of the Inquiry Committee being laid on the table of
the House, a Motion was adopted by Lok Sabha resolving to expel the 1O
members from the membership of Lok Sabha, accepting the finding as
contained in the Report of the Committee that the conduct of the 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,
B 2005, the Lok Sabha 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.
c respect6. ofAlmost a similar process was undertaken by the Rajya Sabha in
its Member. The matter was referred to the Ethics Committee of
the Rajya Sabha. As per the majority report, the Committee found that the
Member had accepted money for tabling question in Rajya Sabha and the
plea taken by him in defence was untenable in the light of evidence before
it. However, one Member while agreeing with other Members of the
D 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
E 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 Rajya Sabha
concurring with the recommendation of expulsion and on the same date i.e.
23rd December, 2005, a notification notifying expulsion of the Member from
F membership of Rajya Sabha 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
G 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 the 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
H conclusion that the conduct of the Member amounts to violations of Code
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 363
of Conduct for Members of Rajya Sabha and it is immaterial whether any A
money changed hands or not or whether any commission was actually paid
or not. It found that the Member has not only committed gross misdemeanor
but by his conduct he also impaired the dignity of the House and its
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 its Members into disrepute, the
B
Committee expressed the view that the Member has forfeited his right to
continue as Member and, therefore, recommended his expulsion from the
membership of the House. The Raj ya Sabha 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 c
membership bringing to an end his membership. On the same date notification
was issued by Rajya Sabha Secretariat.
9. The two Members of Rajya Sabha have also challenged the
constitutional validity of their expulsions. Article 105 reads as under : D
"105. Powers, privileges, etc. of the Houses of Parliament and of
the members and committees thereof.- (I) 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. E
(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 F
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 G
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 {I), (2) and (3) shall apply in relation H
364 SUPREME COURT REPORTS [2007) l S.C.R.
A 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."
I 0. There is identical provision as contained in Article 194 relating to
B . powers, privileges and immunities of State legislature. Article 194 reads as
under :-
(
"194. Powers, privileges, etc., of the House of Legislatures and of r
the members and committees thereof.- (1) Subject to the
c 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
D
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.
E (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
F
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
G 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
H "shall be those of the House of Commons of the Parliament of the United
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 365
Kingdom, and of its members and committees at the commencement of this A
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 (forty-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 B
.. purpose of omitting the reference of the House of Commons in these articles .
12. Before the amendment in 1978, clause (3) of Article I 05 read as
under :-
"(3). In other respects, the powers, privileges and immunities of C
each Hot:se of Parliament, and of the members and the committees
of each House, shall be such as may from time to time be defined
by I?arliament by law, and, until so defined, shall be those of the
Ho~se of Commons of the Parliament of the United Kingdom, and
of its members and committees, at the commencement of this D
Constitution."
Contentions
13. The petitioners submit that all the powers, privileges or immunities,
as vested on the date of commencement of the Constitution of India, in the E
House of Commons of the Parliament of United Kingdom had not been
inherited by the legislatures in India under Article 105(3) of the Constitution.
14. The main contention urged is that power and privilege of expulsion
was exercised by the House of Commons as a facet of its power of self-
composition and since such power of such self-composition has not been F
given by the Constitution to Indian Legislature, it did not inherit the power
to expel its members. The contention is that expulsion is necessarily
punitive in nature rather than remedial and such power vested in House of
Commons as a result of its power to punish for contempt in its capacity as
a High Court of Parliam~nt and since this Status was not accorded to Indian
Legislature, the power to expel could not be claimed by the Houses of G
Parliament under Article 105(3). It is also their contention that power to
expel cannot be asserted through Article 105(3) also for the reason that such
an interpretation would come in conflict with other constitutional provisions.
A grievance has also been made about denial of principles of natural justice
in the inquiry proceedings and it is contended that there are gross and H
3(,6 SUPREME COURT REPORTS [2007] l S.C.R.
A patent illegalities which are not protected from judicial review by Article 122 ,.~
on plea of procedural irregularities. The contention of the petitioners further
is that even the plenary powers of the legislature are controlled by the basic
concepts of the Constitution and, therefore, it has to function within the
circumscribed limits. The submission is that this Court is the final arbiter
on the constitutional issues and the existence of judicial power in such
B behalf must necessarily and inevitably postulate the existence of a right in
the citizen to move the Court for protection of fundamental rights and for .
due adherence to the constitutional provisions and scheme in absence of
which the power conferred on the judicial organ would be rendered
meaningl~s. The contention also is that the extent and scope of power
c conferred on each branch of the State, limits on the exercise of such power
under Constitution and any action of any branch that transgresses such
limit is for the judiciary to determine as the final interpreter of the Constitution.
Petitioners submit that the constitutional and legal protection accorded to
the citizens would become illusory if it were left to the organ in question to
D determine the legality of its own action. They further submit that it is also
a basic principle of rule of law permeating every provision of the Constitution,
rather forming its very core and essence, that the exercise of power by the r ,.
Executive or any other authority must not only be conditioned by the
Constitution but also be in accordance with law in which context it is
primarily the function of the jµdiciary alone to ensure that the law is
E observed and there is compliance with the requirement of the constitutional
provisions which is performed through patent weapon used as power of
judicial review.
15. On the plea that this Court has the jurisdiction to exercise the power
F of judicial review in a case of this nature where another coordinate organ
of the State has asserted and claimed a power and privilege on the strength
of a Constitutional provision seemingly also claiming "exclusive cognizance",
meaning immunity from judicial interference, the contentions ofthe petitioners
can be summarized thus:-
G
"(i) The power of judicial review is an incident of and flows from the
concept that the fundamental and higher laws are the touchstone of
the limits of the powers of the various organs of State which derive
power and authority under the Constitution of which the judicial wing
is the interpreter;
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 367
(ii) Unlike in England where Parliament is sovereign, in a federal State with A
a written Constitution like India is, the supremacy of the Constitution
is fundamental to its existence, which supremacy is protected by the
authority of the independent judicial body that acts as the interpreter
thereof through the power of judicial review to which even the
Legislature is amenable and cannot claim immunity wherefrom;
B
(iii) The legislative supremacy being subject to the Constitution, Parliament
cannot determine for itself the nature, scope and effect of its powers
which are, consequently, subject to the supervision and control of
judicial organ;
c
(iv) The petitioners would also point out that unlike the Parliament of
England, the status of Legislature in India has never been that of a
superior court of record and that even privileges of Parliament are
subject to limits which must necessarily be ascertainable and, therefore,
subject to scrutiny by the Court, like any other right; D
(v) The validity of any proceedings even inside a legislative chamber can
be called in question before the Court when it suffers from illegality
and unconstitutionality and there is no immunity available to Parliament
from judicial review. "
E
16. It is the petitioners' contention that the Houses of Parliament had
no power of expulsion of a sitting member. They plead that the petitioners
could not be debarred from membership of the House by or under the
impugned notifications pursuant to proceedings consequent upon the media
reports inasmuch as substantive and adjectival law had been disregarded F
• • and the Constitutional inhibition placed on the exercise of power ofdebarment
had been defeated. On the case that the Indian Legislatures cannot claim
the power of expulsion of their members, the contentions are stated thus:-
"(i) The Legislature has no power to expel its member since the Parliament
has not enacted any law which provides for expulsion of a member in G
a specified circumstance, in terms of enabling power to legislate on the
subject as available in Article 105(3) of the Constitution;
-<...
(ii) The expulsions are illegal, arbitrary and unconstitutional, being violative
of the provisions of Articles 83, 84 and IOI to 103, 105 and 190 to 193 H
(
368 SUPREME COURT REPORTS [2007] 1 S.C.R.
A of th~ Constitution;
(iii) There is no provision either in the Constitution of India or in the Rules
of Procedure and Conduct of Business of the Houses of Parliament for
expulsion of a member by adoption of a motion and thus the impugned
acts were beyond the jurisdiction of Parliament;
B
(iv) The expulsion of the petitioners from the Legislature through a motion
adopted by simple majority was a dangerous precedent which would
give dictatorial powers to the ruling majority in the Legislatures in
future and thus be prone to further abuse;
c
(v) The Constitutional law governing the democracies the world over,
even in other jurisdictions governed by written Constitutions, would
not allow the power of exclusion of the elected members unto the
legislative chamber. "
D 17. Claiming that they were innocent and had been falsely trapped, by
the persons behind the so-called sting operation who had acted in a manner
actuated by ma/a jides and greedy intent for cheap publicity and wrongful
gains bringing the petitioners into disrepute, the Petitioners question the
procedure adopted by the two Houses of Parliament alleging that it suffered
E from gross illegality (as against procedural irregularity) calling for judicial
interference. In this respect, the petitioners submit that the enquiries
conducted by the two Houses were unduly hurried; were neither fair nor
impartial and have resulted in gross violation of rules of natural justice
which were required to be followed inasmuch as the action that was
F contemplated would entail civil consequences; the Petitioners had not even
been treated as ordinary offenders of law and deprived of basic opportunity
of defending themselves through legal counsel and opportunity to explain;
the evidence in the form of videography etc. had been relied upon without
opportunity being given to them to test the veracity of such evidence,
specially in the face of their defence that the video clippings had been
G doctored or morphed which plea had not been properly examined or
enquired into and the evidence of such nature had been relied upon in
violation of the settled law; the expulsions are illegal, arbitrary and
unconstitutional, being violative of the provisions of Articles 14 & 21 of the
Constitution; the petitioners claim that as a consequence of the impugned
H· decisions they had suffered irreparable loss and their ijnage and prestige had
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 369
been lowered in the eyes of the electorate. A
18. The two Houses of Parliament, through their respective secretariats,
have chosen not to appear in the matter. The impugned decisions are,
however, sought to be defended by the Union of India. The contention
urged on behalf of Union of India is that the conduct of accepting money
for tabling questions and raising matters in the House was considered by B
the respective Houses of Parliament as unbecoming of members of the
House rendering them unfit for being members of the respective Houses.
The actions of expulsions are matters within the inherent power and
privileges of the Houses of Parliament. It is a privilege of each House to
conduct its internal proceedings within the walls of the House free from c
interference including its right to impose disciplinary measures upon its
members. The power of the Court to examine the action of a House over
outsider in a matter of privilege and contempt does not extend to matters
within the walls of the House over its own members. When a member is
excluded from participating in the proceedings of the House, it is a matter
D
concerning the House and the grievance of expulsion is in regard to
proceedings within the walls of Parliament and in regard to rights to be
exercised within the walls of the· House, the House itself is the final judge.
The expulsion of these members has been rightly carried out by respective
Houses in exercise of their powers and privileges under Article 105(3) of the
Constitution which power and privilege of expulsion has been exercised by E
the Houses of Parliament in the past as well. The expulsion does not create
any disability to be re-elected again as a member of the House.
19. We have heard learned Senior Advocates Mr. Ram Jethmalani, Mr.
P.N. Lekhi for the petitioners as also Dr. K.S. Chauhan, Advocate and other F
learned counsel appearing for the petitioners. For the respondents, we have
heard Mr. Gopal Subramanian, learned additional Solicitor General appearing
on behalf of Attorney General for India and Mr. T.R. Andhyarujina, learned
Senior Advocate on behalf of Union of India.
Constitutional Scheme G
20. To appreciate the contentions, it is necessary to first examine the
constitutional scheme.
21. That the Constitution is the Supreme lex in this Country is beyond H
370 SUPREME COURT REPORTS [2007] 1 S.C.R.
A the pale of any controversy. All organs of the State derive their authority,
jurisdiction and powers from the Constitution and owe allegiance to it. This
includes this Court also which represents the judicial organ. In the
celebrated case of Kesavananda Bharati v. State of Kera/a, [1973) 4 SCC
225, this Court found certain basic features of the Constitution that include,
besides supremacy of the Constitution, the republican and democratic form
of Government, and the separation of powers between the Legislature, the
-- Executive and the Judiciary. The principle of supremacy of the Constitution
has been reiterated by this Court post Kesavananda Bharati in case after
case including, to name just some of them, Indira Nehru Gandhi v. Raj
Narain, [1975] Suppl SCC l; Minerva Mills Ltd. v:Union of India, [1980]
c 3 SCC 625, Sub-Committee on Judicial Accountability v. Union of India,
[1991] 4 SCC 699, I. Manila! Singh v. H. Borobabu Singh (Dr), [1994] Supp
1SCC718, Union of India v. Assn.for Democratic Reforms, [2002] 5 SCC
294, Special Reference No. 1 of 2002, In re (Gujarat Assembly Election
matter) [2002] 8 SCC 237, People's Unionfor Civil Liberties (PUCL) v.
Union of India, [2003] 4 SCC 399, Pratap Singh v. State of Jharkhand,
D
[2005] 3 SCC 551, Rameshwar Prasad (VI) v. Union ofIndia, [2006] 2 SCC
I, Ku/dip Nayar v. Union of India, [2006] 7 SCC I.
22. That the parliamentary democracy in India is qualitatively distinct
from the one in England from where we have borrowed the Westminister
E model of Government, is also well settled. In this context, before proceeding
further on this premise, we may quote the following observations of the
Constitution Bench (7 Judges) appearing at page 444 in Special Reference
No. I of 1964, [1965] I SCR 413 (UP Assembly case) :-
F "In dealing with this question, it is necessary to bear in mind one
fundamental feature of a Federal Constitution. In England, Parliament
is sovereign; and in the words of Dicey, the three distinguishing
features of the principle of Parliamentary Sovereignty are that
Parliament has the right to make or unmake any law whatever; that
no person or body is recognised by the law of England as having
G a right to override or set aside the legislation of Parliament, and that
the right or power of Parliament extends to every part of the
Queen's dominions [Dicey, The Law of the Constitution 10th ed.
Pp.xxxiv, xxxv]. On the other hand, the essential characteristic of
federalism is "the distribution of limited executive, legislative and
H judicial authority among bodies which are coordinate with and
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 371
independent of each other". The supremacy of the constitution is A
fundamental to the existence of a federal State in order to prevent
either the legislature of the federal unit or those of the member
States from destroying or impairing that delicate balance of power
which satisfies the particular requirements of States which are
desirous of union, but not prepared to merge their individuality in
B
a unity. This supremacy of the constitution is protected by the
authority of an independent judicial body to act as the interpreter
of a scheme of distribution of powers. Nor is any change possible
in the constitution by the ordinary process of federal or State
legislation [Ibid p.lxxvii]. Thus the dominant characteristic of the
British Constitution cannot be claimed by a Federal Constitution c
like ours."
23. In the constitutional scheme that has been adopted in India, the
Legislatures play a significant role in pursuit of the goals set before the
nation and command the position of grandeur and majesty. The Legislatures D
- '
undoubtedly have plenary powers but such powers are controlled by the
basic concepts of the written constitution and can be exercised within the
legislative fields allotted to their respective jurisdiction under the Seventh
Schedule. They have the plenary legislative authority and discharge their
legislative functions by virtue of the powers conferred on them by the
relevant provisions of the Constitution. But, the basis of that power is the
E
Constitution itself. In this context, it would be fruitful to also take note of
the following observations appearing at page 445 of the afore-mentioned
judgment in UP Assembly case :-
" ... Besides, the legislative supremacy of our legislatures including F
the Parliament is normally controlled by the provisions contained
/ in Part III of the Constitution. If the legislatures step beyond the
legislative fields assigned to them, or acting within their respective
fields, they trespass on the fundamental rights of the citizens in a
manner not justified by the relevant articles dealing with the said G
fundamental rights, their legislative actions are liable to be struck
down by courts in India. Therefore, it is necessary to remember that
though our legislatures have plenary powers, they function within
the limits prescribed by the material and rele~ant provisions of the
Constitution."
H
372 SUPREME COURT REPORTS [2007] l S.C.R.
A 24. The judicial organ of the State has been made the final arbiter of
Constitutional issues and its authority and jurisdiction in this respect is an
important and integral part of the basic structure of the Constitution of India.
Before coming in grips with the complex Constitutional questions that have
been raised, we would well remind ourselves, more than we do everyone
else, of the following further observations made at page 447 :-
B
" .. .In this connection it is nece:;sary to remember that the status,
dignity and importance of these two respective institutions, the
legislatures and the Judicature, are derived primarily from the
status, dignity and importance of the respective causes that are
c assigned to their charge by the Constitution. These two august
bodies as well as the Executive which is another important
constituent of a democratic State, must function not in antimony
nor in a spirit of hostility, but rationally, harmoniously and in a
spirit of understanding within their respective spheres, for such
harmonious working of the three constituents of the democratic
D
State alone will help the peaceful development, growth and
stabilisation of the democratic way of life in this country.';
25. The issues involved are required to be examined bearing in mind
the basic ethos of our Constitutional scheme in the above light.
E
26. The Constitution of India provides through Chapter II of Part V for
Union Legislature, called the "Parliament". Parliament consists of, besides
the President, two Houses known respectively as the Council of States
(Rajya Sabha) and the House of the People (Lok Sabha). Article 80 deals
F with the matter of composition ofRajya Sabha. Article 81, on the other hand, l-
provides for composition of Lok Sabha. In terms of Article 83, Rajya Sabha ~
is a permanent body, not subject to dissolution, its continuance being
ensured by replacements of one third of the members who retire on the
expiration of every second year. Lok Sabha, on the other hand, is given a
fixed term of five years, unless sooner dissolved or unless its term is
..
G extended in situation of emergency as provided in the proviso to sub-rule
(2) of Article 83.
27. In the loose federal structure that India has adopted for itself,
wherein India is an indestructible Union of destructible units, there is a
H provision for State Legislature in Chapter III of Part VI governing the States,
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 373
almost similar to the set up at the Centre. A
28. The relations between the Union and the States are controlled by
the provisions contained in Part XI of the Constitution.
29 The Constitution permits, through Article 118 and Article 208, the
Legislature at the Centre and in the States respectively, the authority to
B
make rules for regulating their respective procedure and conduct of business
.,
.
"subject to the provisions of this Constitution" .
30. Since we are concerned mainly with the Houses of Parliament in
these proceedings, it may be mentioned that each House in exercise of its C
powers under Article 118 has framed detailed rules of procedure which are
called "Rules of Procedure and Conduct of Business in Lok Sabha" and
Rules of Procedure and Conduct of Business in the Council of States".
31. Conscious of the high status of these bodies, the Constitution
accorded certain powers, privileges and immunities to the Parliament and
D
State Legislatures and their respective members. For this purpose, specific
provisions were included in the Constitution in Articles 105.
32. For the present, it may only be noticed that sub-Article (I) of
Article l 05 and Article 194 respectively confers on the Members of Parliament E
and the State Legislatures respectively "freedom of speech" in the Legislature,
though "subject to the provisions" of the Constitution and "subject to the
rules and orders regulating the procedure" of Parliament or of the Legislatures,
as the case may be.
-·..... 'r F
33. Sub-Article (2) of both the said Articles grants, inter a/ia, absolute
immunity to members of the Legislatures from "any proceedings in any
Court in respect of anything said or any vote given" by them in the
Legislatures or any Committee thereof. Sub-Article (3) of Artide 105 and
•
Article 194 declares that "the powers, privileges and immunities" of each
House of the Legislatures and the members and Committees thereof, "in G
other respects" shall be "such as may from time to time be defined" by the
Parliament or the State Legislature, as the case may be, "by law" and, "until
so defined", to be those as were enjoyed by the said Houses or members
of the Committees thereof immediately before coming into force of the
amendment in 1978. H
374 SUPREME COURT REPORTS [2007] 1 S.C.R.
A 34. Article 122 is of great import in the context of, amongst others,
Article l 05, since it seems to restrict the jurisdiction of the Courts in relation
to "proceedings of Parliament". It reads as under:-
"122. Courts not to inquire into proceedings of Parliament.-{!)
The validity of any proce\!dings in Parliament shall not be called in
B question on the ground of any alleged irregularity of procedure.
(2) No officer or member of Parliament in whom powers are vested
by or under this Constitution for regulating procedure or the
conduct of business, or for maintaining order, in Parliament shall be
c subject to the jurisdiction of any court in respect of the exercise by
him of those powers."
35. There is a similar provision in relation to State Legislature.
36. Having given our anxious considerations to the myriad issues that
D 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
E to decide the content and scope of powers, privileges and immunities
of the Legislatures and its members?
2. If the first question is answered in the affirmative, can it be found that
the powers and privileges of the Legislatures in India, in particular with
F 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
G and; if so, is this jurisdiction circumscribed by certain limits?
3 7. In our approach to these issues of great importance, we have
followed the advice of Thomas Huxley in the following words :-
H "It is not who is right, but what is right, that is of importance"
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 375
38. In our quest, again borrowing the words of Thomas Huxley, we A
must:
"learn what is true in order to do what is right".
39. The need, if any, to take up for consideration, the grievances
expressed by the petitioners in relation to the manner of exercise of the B
power and privilege asserted by both Houses of Parliament to expel their
respective members would arise in light of decision on the two first-
mentioned cardinal questions.
Court's Jurisdiction to decide on the scope of Article 105(3) c
40. There was virtually a consensus amongst the learned counsel that
it lies within the powers and jurisdiction of this Court to examine and
determine the extent of power and privileges to find out whether actually
power of expulsion is available under Article 105(3) or not.
D
41. Having regard to the delicate balance of power distributed amongst
the three chief organs of the State by the Constitution of India and the
forceful assertions made particularly with regard to the limitation on court's
jurisdiction, we decided not to depend upon mere concession of the learned
counsel as to our jurisdiction. We thought it prudent to examine it fully even
E
in the context of primary question about the judicial authority to go into the
question of existence of a particular power or privilege asserted and claimed
under Article 105, so as to reassure ourselves that we were not in any
manner intruding into a zone which is out-of-bounds for us.
42. Fortunately, the subject at hand is not a virgin territory. There have F
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 G
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 H
376 SUPREME COURT REPORTS [2007] 1 S.C.R.
A 8 to 11 of the Representation of 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 cataloging the powers, privileges and immunities of each
House of Parliament and of their members and committees. This consequence
B 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
c Commons at the commencement of our Constitution as that will determine
the powers, privileges and immunities of both Houses of Indian Parliament.
44. The history of the subject of Parliamentary privileges indicates
numerous instances where the effort at tracing the dividing line between the
competence of courts and the exclusive jurisdiction of the legislature threw
D up complex Constitutional questions giving rise to divergent opinions and
decisions even in England, more importantly, in connection with the House
of Commons. These questions included the abstract question whether the
law of Parliament in such regard was a "particular law" or "part of the
common law" in its wide and extended sense and the practical question
E whether the House of Commons was to be the sole judge of a matter of
privilege claimed by it even when the rights of third parties were involved
or whether in such cases the issues could be decided in the courts. The
next question arising from the last mentioned issue naturally concerned the
extent of the power of the judges, that is to say, if they were bound to accept
and apply the parliamentary interpretation of the law or were free to form
F their own view in such regard.
45. The dust has since settled even in England which jurisdiction since
concedes the jurisdiction of the court to decide all questions of privilege,
except those concerning exclusive jurisdiction of the legislative chamber
over its own internal proceedings.
G
46. The works of English and Commonwealth authors have always
H
been treated as the most authoritative references for determining the source
of a privilege or power exercised by the House of Commons. They include
Halsbury's Laws of England, Maitland, Wade and Phillips, Keir & Lawson,
Sir Barnett Cocks, Ridges on Constitutional Law, and Sir William Anson's
,_
' --
" .
'
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 377
"The Law and Custom of the Constitution". Sir Thomas Erskine May was A
: a clerk of the House of Commons (1871-1886). His work "Parliamentary
Practice'', hereinafter referred to as "May's Parliamentary Practice'', is
universally regarded as an authoritative exposition of this branch of law.
47. The following extract from page 183 in chapter 11 "Jurisdiction of
Courts of Law in Matters of Privilege" as appearing in Erskine May's B
Parliamentary Practice, 20th Edition reflects the prevalent law in United
't· Kingdom:-
"The problem thus became one of reconciling the law of privilege
with the general law. The solution gradually marked out by the C
courts is to insist on their right in principle to decide all questions
of privilege arising in litigation before them, with certain large
exceptions in favour of parliamentary jurisdiction. Two of these,
which are supported by a great weight of authority, are the
exclusive jurisdiction of each House over its own internal
proceedings, and the right of either House to commit and punish
D
for contempt. While it cannot be claimed that either· House to
commit or formally acquiesced in this assumption of jurisdiction by
the courts, the absence of any conflict for over a century may
indicate a certain measure of tacit acceptance."
E
48. The learned counsel for all sides have referred to Bradlaugh v.
Gosset, [1884] 12 QBD 271. Charles Bradlaugh, the plaintiff in that case
before Queen's Bench Division had been elected a Burgess to serve in the
House of Commons and was entitled to take oath by law prescribed to be
taken by the members of the said chamber of legislature and to sit and vote
F
in the House as an elected representative. This resolution was explained in
due course by Speaker to mean that the exclusion of Bradlaugh from the
House would continue "until he should engage not to attempt to take the
oath in disregard of the resolution of the House now in force". The issues
that were raised before the court included the question whether the House
of Commons had a right to pass such a resolution forbidding the member G
of the House within the walls of the House itself from doing something
which by the law of the land he had a right to do so and whether the court
could inquire into the said right and allow an action to be maintained by a
member of the House. Reliance has been placed on certain observations
made in the judgment that was rendered in the said fact situation. At page H
378 SUPREME COURT REPORTS [2007] 1 S.C.R.
A 275, Lord Coleridge, CJ. observed as under:-
"Alongside, however, of these propositions, for the soundness of
which I should be prepared most earnestly to contend, there is
another proposition equally true, equally well established, which
seems to me decisive of the case before us. What is said or done
B within the walls of Parliament cannot be inquired into in a court of
law. On this point all the judges in the two great cases which
exhaust the learning on the subject - Burdett v. Abbott [14 East,
1, 148] and Stockdale v. Hansard [9 Ad. & E. l.]; - are agreed, and
are emphatic. The jurisdiction of the House over their own
c members, their right to impose discipline within their walls, is
absolute and exclusive. To use the words of Lord Ellenborough,
"They would sink into utter contempt and inefficiency without it. "
[14 East, at p. 152]"
49. The learned counsel then referred to the Privy Council decision in
D
Richard William Prebble v. Television New Zealand Ltd., [1994] (S) WLR
970. It arose out of a defamation action by a former Minister of the --f /
Government ofNew Zealand where proceedings in Parliament were questioned.
The issue of infringement of parliamentary privilege was raised in the context
of Article 9 of the Bill of Rights, 1689 which declared that the freedom of
E speech and debates or proceedings in Parliament "ought not to be impeached
or questioned in any court or place out of Parliament". The Privy Council
observed as under at page 976:-
"In addition to article 9 itself, there is a long line of authority which
F supports a wider principle, of which article 9 is merely one
manifestation, viz. that the courts and Parliament are both astute to
recognize their respective constitutional roles. So far as the courts
are concerned they will not allow any challenge to be made to what
is said or done within the walls of Parliament in performance of its
legislative functions and protect one of its established privileges.
G Burdett v. Abbot, (1811) 14 East l; Stockdale v. Hansard, (1839)
9 Ad. & EI. l; Bradlaugh v. Gossett, [1884] 12 QBD 271; Pickin v.
BritishRailwaysBoard, [1974] AC765;Pepperv.Hart, [1993]AC
593. As Blackstone said in his Commentaries on the Laws of
England, 17th ed. (1830), vol.I, p. 163:
H
'r
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 379
"the whole of the law and custom of Parliament has its A
original from this one maxim, 'that whatever matter arises
concerning either House of Parliament, ought to be
examined, discussed, and adjudged in that House to
which it relates, and not elsewhere."
50. Further, the views formulated in Prebble v. Television New Zealand
B
Ltd. were expressed at page 980 thus:
"Parties to litigation, by whomsoever commenced, cannot bring
into question anything said or done in the House by suggesting
(whether by direct evidence, cross-examination, inference or c
submission) that the actions or words were inspired by in proper
motives or were untrue or misleading. Such matters lie entirely
within the jurisdiction of the House, subject to any statutory
exception such as exists in New Zealand in relation to perjury under
Section 108 of the Crimes Act 1961."
D
51. The learned counsel would then refer to the law that has been
evolved in India, the case of MS.M Sharma v. Sri Krishna Sinha, [1959]
Supp l SCR 806, hereinafter referred to as case of Pandit Sharma(!), being
perhaps the first in a series of such cases on the subject.
E
52. Pandit Sharma, the petitioner in that case was editor of an English
Daily Newspaper "Searchlight" of Patna. He invited the wrath of the
legislative assembly ofBihar 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
F
matter to the Privileges Committee of the assembly which in tum 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 G
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
publication of the publicly seen and heard proceedings that took place in
the House or even to prohibit the publication of such part of the proceedings H
380 SUPREME COURT REPORTS [2007] 1 S.C.R.
A as had been directed to be expunged and as to whether the privilege of the
legislative chamber under Article 194(3) prevailed over the fundamental right
of a citizen under Article I 9 (I) (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.
B 53. It may be mentioned here that the writ petition of Pandit Shanna
was dismissed on the basis of majority view, inter alia, holding that the
legislatures in India were vested with the power or privilege of prohibiting
the publication of debates or proceedings that took place in the House, of
even a true and faithful report, as indeed of an inaccurate or garbled version
c thereof. It was further held that the powers, privileges and immunities
available in tenns of Articles 105(3) and 194(3) stood in the same supreme
position as the provisions of Part III of the Constitution and could not be
affected by Article 13 and, therefore, the principle ofhannonious construction
required to be adopted. The court concluded that the fundamental right of
free speech and expression under Article 19 (l)(a) being general in nature
D
must yield to Article 194(1) and the latter part of Article 194(3) which are
special provisions. The challenge to the proceedings under Article 194(3) on
the basis of Article 21 was also repelled on the ground of it being "in
accordance with the procedure established by law" in as-much-as the rules
framed by the legislative assembly under Article 208 laid down the procedure.
E
54. The case of Pandit Sharma (supra) 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 Shanna in the wake of which he brought another writ
F 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 MS.M Sharma v. Shree
Krishna Sinha, [1961] l SCR 96, hereinafter referred to as case of Pandit
Shc..rma (II) (supra).
G
55. In Para 10 of the Judgment, this Court observed thus:-
"10 .. .It was contended that the procedure adopted inside the House
of the Legislature was not regular and not strictly in accordance
H with law. There are two answers to this contention, firstly, that
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 381
according to the previous decision of this Court, the petitioner has A
not the fundamental right claimed by him. He is, therefore, out of
Court. Secondly, the validity of the proceedings inside the
Legislature of a State cannot be called in question on the allegation
that the procedure laid down by the law had not been strictly
followed. Article 212 of the Constitution is a complete answer to
this part of the contention raised on behalf of the petitioner. No
B
Court can go into those questions which are within the special
jurisdiction of the Legislature itself, which has the power to conduct
its own business. Possibly, a third answer to this part of the
contention raised on behalf of the petitioner is that it is yet
premature to consider the question of procedure as the Committee c
is yet tc conclude its proceedings. It must also be observed that
once it has been held that the Legislature has the jurisdiction to
control the publication of its proceedings and to go into the
question whether there has been any breach of its privileges, the
Legislature is vested with complete jurisdiction to carry on its
D
proceedings in accordance with its rules of business. Even though
' it may not have strictly complied with the requirements of the
procedural law laid down for conducting its business, that cannot
be a ground for interference by this Court under Article 32 of the
Constitution. Courts have always recognised the basic difference
between complete want of jurisdiction and improper or irregular E
exercise ofjurisdiction. Mere non- compliance with rules of procedure
cannot be a ground for issuing a writ under Article 32 of the
Constitution vide Janardan Reddy v. State of Hyderabad, [1951]
SCR344."
·~ F
56. By far, the advisory opm1on given by a Constitution Bench
comprising of seven Judges of this court in UP Assembly (Supra) 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 seeking opinfon of this court on certain issues, the genesis of G
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 H
382 SUPREME COURT REPORTS (2007] I S.C.R.
A 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 right. 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
B the application and ordered release of Keshav Singh on interim bail pending
decision on his writ petition. The legislative assembly found that Keshav
Singh and his advocate in moving the High court and the two Judges of the
High Court in entertaining the petition and granting bail had committed
contempt of the legislative assembly. The assembly passed a resolution that
c all of them, including the two High Court Judges, be produced before it in
custody. The High Court Judges and the advocate in question thereupon
filed writ petitions before the High Court at Allahabad. A full bench of the
High Court admitted the writ petitions and ordered the stay of execution of
the assembly's resolution against them. Subsequently, the legislative
assembly passed a clarificatory resolution modifying its earlier stand and
D
asking
I
the Judges and the advocate to appear before the House and offer
their explanation. It was against this backdrop that the President made a
Reference under Article I 43( 1) of the Constitution seeking opinion 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
E contours of the main controversy were siµnmarized 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
F 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
G detention of the person sentenced by the House? ........... "
57. It is clear from the opinion rendered in UP Assembly (Supra) 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
H the area of controversy covered by the questions, insisting that "the
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.) 383
- 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
A
from deciding for itself the points referred to us under this Reference",
referring in this context, inter alia to the fact that there was no /is before
the court which was therefore not exercising "its judicial function" while
B
dealing with a Reference under Article 143 (l).
58. After examining the issue of absolute immunity of the proceedings
of the House in such matters from challenge in the court, in the light of
various Constitutional provisions and tracing the development of the law on C
the subject in England with the help, amongst others, of May's Parliamentary
Practice, this Court summarized the legal position as obtaining in United
Kingdom, at page 467, as under:-
"83. In regard to punishment for contempt, a similar process of give
-
D
and take by convention has been in operation and gradually a large
' area of agreement has, in practice, been evolved. Theoretically, the
House of Commons claims that its admitted right to adjudicate on
breaches of privilege implies in theory the right to determine the
existence and extent of the privileges themselves. It has never
expressly abandoned this claim. On the other hand, the courts E
regard the privileges of Parliament as part of the law of the land,
of which they are bound to take judicial notice. They consider it
their duty to decide any question of privilege arising directly or
indirectly in a case which falls within their jurisdiction, and to
_._......._ decide it according to their own interpretation of the law [May's F
Parliamentary Practice, p. 172]. Naturally, as a result of this
dualism the decisions of the courts are not accepted as binding by
the House in matters of privilege, nor the decisions of the House
~
by the courts; and as May points out, on the theoretical plane, the
old dualism remains unresolved. In practice, however, "there is
much more agreement on the nature and principles of privilege than G
the deadlock on the question of jurisdiction would lead one to
expect" and May describes these general conclusio:is in the
#.,,
following words:
.... (1) It seems to be recognized that, for the purpose of H
384 SUPREME COURT REPORTS [2007] I S.C.R.
A adjudicating on questions of privilege, neither House is
by itself entitled to claim the supennacy over the ordinary
courts of justice which was enjoyed by the undivided
High Court of Parliament. The supremacy of Parliament,
consisting of the King and the two Houses, is a legislative
supremacy which has nothing to do with the privilege
B jurisdiction of either House acting singly.
(2) It is admitted by both Houses that, since either House
can by itself add to the law, neither House can by its
own declaration create a new privilege. This implies that
c privilege is objective and its extent ascertainable, and
reinforces the doctrine that it is known by the courts.
On the other hand, the courts admit:
(3) That the control of each House over its internal
D
(4)
proceedings is absolute and cannot be interfered with by
the courts.
That a committal for contempt by either House is in
-
practice within its exclusive jurisdiction, since the facts
E constituting the alleged contempt need not be stated on
the warrant of committal [May's Parliamentary Practice:
p. 173]."
84. It is a tribute to the remarkable English genius for finding
pragmatic ad hoc solutions to problems which appear to be
F
irreconcilable by adopting the conventional method of give and
take. The result of this process has been, in the words of May, that
the House of Commons has not for a hundred years refused to
submit its privileges to the decision of the courts, and so, it may
be said to have given practical recognition to the jurisdiction of the
G courts over the existence and extent of its privileges. On the other
hand, the courts have always, at any rate in the last resort, refused
to interfere in the application by the House of any of its recognized
privileges [May's Parliamentary Practice, pp. 173-74]. That broadly
stated, is the position of powers and privileges claimed by the
H House of Commons."
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 385
59. Sarkar J. in his separate judgment in the same case was ad idem A
with the majority opinion in this context. Rejecting the contentions based
on the observations in Bradlaugh, he observed at page 508 as under:-
"This passage should suffice to illustrate the nature of the dispute.
It will not be profitable at all, and indeed I think it will be
'mischievous', to enter upon a discussion of that dispute for it will
B
only serve to make it turbid, by raking up impurities which have
settled down, a stream which has run clear now for years.
Furthermore that dispute can never arise in this country for here
it is undoubtedly for the courts to interpret the Constitution and,
therefore, Article 194(3). It follows that when a question arises in C
this country under that article as to whether the House ofCommons
possessed a particular privilege at the commencement of the
Constitution, that question must be settled, and settled only, by
the Courts of law. There is no scope of the dreaded "dualism"
appearing here, that is, courts entering into a controversy with a D
House of a legislature as to what its privileges are. I think what I
have said should suffice to explain the nature of the privileges for
the purposes of the present reference and I will now proceed to
discuss the privileges of the Assembly that are in question in this
case, using that word in the sense of rights ancillary to the main
function of the legislature." E
(Emphasis supplied)
60. His conclusions to above effect were settled in view of the legal
---- position in England, as is clear from the observations at page 522 of his
Judgment, which read as under:-"
F
"All privileges of the House of Commons are based on law. That
law is known as Lex Parliamenti. Hence privileges are matters
which the House of Commons possesses as of right. In Stockdale
v. Hansard, [112 E. R. 1112] all the Judges held that the rights of G
the House of Commons are based on Lex Parliamenti and that law
like any other law, is a law of the land which the courts are entitled
to administer."
61. The case State of Karnataka v. Union of India, [ 1977] 4 SCC 608 H
386 SUPREME COURT REPORTS (2007] I S.C.R.
A 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
Comn1ission 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
B 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
c on the powers and privileges of the legislature of the State under Article 194
of the Constitution. Examining these arguments, Beg CJ.· 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
D
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).
E 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
F "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. "
(Emphasis supplied)
G
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
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 387
Article 194(3) as the case may be, it is the court which has the authority and A
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 B
become available to the Indian legislatures.
Historical perspective from England
63. To find out the basis of House of Commons possessing the right C
of expulsion of its members, it is necessary to examine the historical
perspective of preliminary powers and privileges and immunities. For
finding out the roots of powers, privileges and immunities of House of
Commons, it is necessary to refer to the views of constitutional authors
mentioned hereinbefore.
D
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. E
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 F
- ...~ . 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.
66. Rutledge, in his "Procedure of the House of Commons" [Volume I,
page 46), defined privileges as "the sum of the fundamental rights of the G
House and of its individual members as against the prerogatives of the
Crown, the authority of the courts oflaw, and the special rights of the House
of Lords".
67. The origin of parliamentary privileges is inextricably intertwined H
388 SUPREME COURT REPORTS (2007) I S.C.R
A with the specific history of the institution of Parliament in England, and more
specifically with the battle between Parliament and the English Monarch for
political control in the 17th century. An understanding of the manner in
which the concept of parliamentary privilege developed, therefore, requires
a sound understanding of the institutional history of Parliament in the
United Kingdom.
B
68. Parliament in the United Kingdom emerged in the Thirteenth
Century. By 14th century, Parliament had begun to exercise a small measure
of judicial power. It took on the role of a court in relation to treason and
related matters. In 1376, Parliament, specifically the Commons, had taken
C upon itself the power of impeachment of the King's servants. Thus, the
Lords could hear appeals of treason and Bills of Attainder where the accuser
was the King. The long struggle of the British subjects to bring about a
parliamentary democracy involved royal concessions, people's resistance,
claims against Crown prerogatives, execution of Monarchs and restoration
of Parliament, struggles, advances and retreats, and it is through these
D
turbulent times that the House of Commons emerged as a representative
form of government.
69. The origin of some of the Parliamentary privileges preceded
Parliament itself and was part of the King's peace, common to all his
E subjects, but in special measure shared by his servants. The privilege of
freedom of speech eventually came to be statutorily recognized by Article
9 of the Bill of Rights Act, 1688.
70. May (23rd :edn., pp.78, 79, 83, 89, 90) describes the historical
F development of privileges as follows:-
""At the commencement of every Parliament it has been the custom
for the Speaker, in the name, and on the behalf of the Commons,
to lay claim by humble petition to their ancient and undoubted
rights and privileges; particularly to freedom of speech in debate,
G 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
H for freedom of speech in debate. By the latter part of the fifteenth
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 389
==.:_, -
, I
century, the Commons of England seems to have enjoyed an A
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 B
privilege is in some ways linked to that of other privileges. Arrest
was frequently the consequence of the unsuccessful assertion of
't
freedom of speech, for example ....
FREEDOM OF ACCESS -The third of the Speaker's petitions is C
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.... D
FAVOURABLE CONSTRUCTION - The final petition which the
speaker makes is that the most favourable construction should be
placed upon all the House's proceedings ...
PRIVILEGE WITH RESPECT TO THE CONSTITUTION OF THE E
HOUSE - It is a privilege of the House of Commons to provide
for its own proper constitution as established by law. The origins
of this privilege are to be found in the sixteenth century."
71. In the UP Assembly (supra) Case, while dealing with questions F
relating to Powers, Privileges and Immunities of State Legislatures, it was
observed as under:-
"69 .... Parliamentary privilege, according to May, 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 G
House individually, without which they could not discharge their
functions, and which exceed those possessed by other bodies or
individuals. Thus privilege, though part of the law of the land, is
to a certain extent an exemption from the ordinary law. The particular
privileges of the House of Commons have been defined as "the H
390 SUPREME COURT REPORTS [2007] 1 S.C.R.
A 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". 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 tenn "privilege" to certain fundamental
B 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 necessity for the due execution of its
powers". They are enjoyed by individual Members, because the
c House cannot perfonn its functions without unimpeded use of the
services of its Members; and by each House for the protection of
its Members and the vindication of its own authority and dignity
[May's Parliamentary Practice, pp. ·42-43]."
72. According to May, origin of the modem Parliament in England
D
consisted in its judicial functions. It was Maitland who was the first to point
out in his introduction to the Parliament Roll of 1305 that Parliament at that
time was the King's "Great Court" and thus, inter alia, the highest Court
of royal justice. It is now generally accepted that a strong judicial streak in
the character of the earliest Parliament was noticeable throughout the earlier
E period of English history, reflected by the fact that dispensation of justice
was one of its chief functions in the eyes of the subjects of the realm, aside
from the political and economic business.
73. Out of the two chambers of Parliament of United Kingdom, the
F House of Lords has continued till the present times as the Court of
Judicature, as part of which function it has the power to sit as a Court during
prorogation and dissolution. The final appellate jurisdiction vests in the
Lords and, in matters of impeachment, the Lords are the sole judges of the
crime in proceedings that involve the other chamber, the House of Commons,
as the accusers or advocates.
G
74. While the House of Lords would claim its powers and privileges
on the basis of theory of inheritance and Divine Right of Kings, the House
of Commons was constrained to wage a fierce struggle against the
prerogatives of the Crown and of the House of Lords to assert and claim
H its rightful place. It was almost a fight for its existence in which the House
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 391
~'t of Commons was pitted against not only the Crown and the House of Lords, A
but also the judicature which was regarded as a creature of the King and
which wing was subordinate to the House of Lords that happened to be the
main opponent of the House of Commons.
75. The dust raised by the bitter struggle waged by the House of
Commons to assert its privileges finally settled when equilibrium was
B
reached in the 19th century with limits of privileges being prescribed and
accepted by Parliament, the Crown and the courts in England. The position
that emerged against this backdrop has been noticed by this court in the
following words in the UP Assembly (supra) Case:-
c
"The two Houses are thus of equal authority in the administration
of a common body of privileges. Each House, as a constituent part
of Parliament, exercised its own privileges independently of the
other. They are enjoyed, however, not by any separate right
peculiar to each, but solely by virtue of the law and custom of D
Parliament. Generally speaking, all privileges properly so called,
appertain equally to both Houses. They are declared and expounded
by each House; and breaches of privilege are adjudged and
censured by each; but essentially, it is still the law of Parliament
that is thus administered. It is significant that although either
House may expound the law of Parliament, and vindicate its own E
privileges, it is agreed that no new privilege can be created. This
position emerged as a result of the historic resolution passed by
the House of Lords in 1704. This resolution declared "that neither
House of Parliament have power, by any vote or declaration, to
create to themselves new pri~ileges, not warranted by the known F
laws and customs of Parliament". This resolution was communicated
by the House of Lords to Commons and assented to by them
[May's Parliamentary Practice, p.47]. Thus, there can be no doubt
that by its resolutions, the House of Commons cannot add to the
list of its priviieges and ~owers."
G
76. The Resolution of 1704, mentioned in the passage extracted above,
had been adopted by the House of Lords in answer to an earlier resolution
passed by the House of Commons declaring its intent to treat the conduct
of any person in moving the court for relief in matters mentioned by the
resolution of the House of Commons as amounting to its contempt. H
392 SUPREME COURT REPORTS [2007) l S.C.R.
A 77. The main privileg(!s which are claimed by the House of Commons
were noticed at length at page 462 of the judgment in the UP Assembly
(supra) Case, as under:-
"72 ...Freedom of speech is a privilege essential to every free
council or legislature, and that is claimed by both the Houses as
B
a basic privilege. This privilege was from 1541 included by
established practice in the petition of the Commons to the King at
the commencement of the Parliament. It is remarkable that
notwithstanding the repeated recognition of this privilege, the
Crown and the Commons were not always agreed upon its limits.
c This privilege received final statutory recognition after the
Revolution of 1688. By the 9th Article of the Bill of Rights, it
was declared "that the freedom of speech, and debates or
proceedings in Parliament, ought not to be impeached or questioned
in any court or place out of Parliament [May's Parliamentary
D Practice, p. 52]".
73. Amongst the other privileges are: the right to exclude strangers,
the right to control publication of debates and proceedings, the
right to exclusive cognizance of proceedings in Parliament, the right
of each House to be the sole judge of the lawfulness of its own
E
proceedings, and the right implied to punish its own Members for
their conduct in Parliament [ibid, p. 52-53).
74. Besides these privileges, both Houses of Parliament were
possessed of the privilege of freedom from :irrest or molestation,
F and from being impleaded, which was claimed by the Commons on
ground of prescription ... "
78. The privilege of freedom of speech under Article 9 of the Bill of
Rights includes the freedom of the member· to state whatever he thinks fit
G in debate, howsoever offensive it may be to the feelings, or injurious to the
character, of individuals. He is protected by his privilege from any action for
libel, as well as from any question or molestation [May's Parliamentary
Practice, 23rd edn., pp. 96-97). The privilege of freedom from arrest has
never been allowed to interfere with the administration of criminal justice or
H emergency legislation.
~
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 393
t...) 79. In early days of its struggle the House of Commons would assert A
a claim to all kinds of privileges for itself and its members but in the course
of time many of such privileges either fell into disuse or faded out of
existence or came to be controlled by legislation. Examples in this context
can be given of the privilege of freedom from being impleaded, limitation put
by the Parliamentary Privilege Act, 1770 on the freedom from arrest and the
privilege of exemption from jury service. What is important for purposes at
B
hand is that the major privileges properly described as privileges essential
for the efficient functioning of the House still continue in force.
80. As per May's Parliamentary Practice [23rd edn., pp. 128] contempt
came to be defined as "any act or omission which obstructs or impedes c
either House of Parliament in the performance of its functions or which
obstructs or impedes any member or officer of such House in the discharge
of his duty, or which has a tendency, directly or indirectly, to produce such
results even though there is no precedent of the offence".
81. Power to punish and commit for contempt is one of the privileges
D
asserted by both Houses of Parliament in United Kingdom. In the context
~ " of power to punish for contempt, this Court found in the UP Assembly
(supra) Case (at page 461) as under:-
" .... Since the decision of the Privy Council in Kielley v. Carson, E
[4 Moore P.C. 63] it has been held that this power is inherent in the
House of Lords and the House of Commons, not as a body with
legislative functions, but as a descendant of the High Court of
Parliament and by virtue of the lex et consuetudo parliamenti
[May's Parliamentary Practice, p. 44]. Historically, as originally
F
~ "
the weaker body, the Commons had a fiercer and more prolonged
struggle for the assertion of their own privileges, not only against
the Crown and the courts, but also against the Lords. Thus the
concept of privilege which originated in the special protection
against the King began to be claimed by the Commons as customary
rights, and some of these claims in the course of repeated efforts G
to assert them hardened into legally recognised "privileges".
-4 .... 82. As has been noticed earlier, the historic origin of the doctrine of
privileges of the legislature in England is founded on its judicial functions.
The House of Lords has always claimed itself to be a Court of Record and H
394 SUPREME COURT REPORTS [2007] 1 S.C.R.
A as such having the inherent authority and power not only to imprison but
also to impose fines in matters of contempt. But then, its position as a Court
of Record does not inure, according to Lord Kenyon, "when exercising a
legislative capacity". According to May's Parliamenta1y Practice, the
House of Commons at one point of time in the history had also claimed to
be a Court of Record, but this position has never been finally determined.
B Be that as it may, as observed in the UP Assembly (supra) Case (at pp. 465-
466), on the authority of May's Parliamentary Practice, the genesis of the
power of commitment, "the key stone of Parliamentary privileges", as
possessed by the House of Commons, arises out of "the medieval inability
to conceive of a constitutional authority otherwise than as in some sense
C a court of justice".
83. The medieval concept of Parliament in England primarily as a court
of justice, the 'High Court of Parliament' gave rise to the firm belief that in
order to defend the dignity of Parliament against disrespect and affronts,
there must vest in it a power to commit, without which the privileges of
D
Parliament would not exist. On the penal jurisdiction of the House arising
from this, May in his "Parliamentary Practice" [23rd edn. pp. 91-92] would
observe as follows:-
"The Lords derived an independent power to punish from their
E original membership of the Curia Regis. Immemorial constitutional
antiquity was not similarly available to the Commons, and indeed
its possession of penal jurisdiction was challenged on this ground
as late as the nineteenth century, and has been defended by
arguments which confused legislative with judicial jurisdiction. The
F difficulties the Commons experienced in proving its case to be a
Court of Record (see p. 161 }-an issue never determined at law -
were connected with these problems. Yet whatever the legal or
constitutional niceties, in practice the House on many occasions in
the sixteenth and seventeenth centuries exercised its power to
impose fines (seep. 161) and imprison offenders. These offenders
G might include Members of the House itself or non-members, the
latter comprising sheriffs, magistrates and even judges of the
superior courts."
84. Almost to ensure that there be not any doubts entertained in this
H behalf in any quarter, while asserting its right to commit offenders on the
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 395
. ...,
same terms as the House of Lords, it was said in the House of Commons A
in 1593 as under:-
"This court for its dignity and highness hath privilege, as all other
courts have. And, as it is above all other courts, so it hath privilege
above all other courts; and as it hath privilege and jurisdiction too,
so hath it also Coercion and Compulsion; otherwise the jurisdiction B
is nothing in a court, if it hath no Coercion."
..,
85. The House of I .ords would eventually concede this power in favour
of House of Commons at the conference between the two Houses as noticed
in the case of Ashby v. White, [L.J. (1701-05), 714]. This has ever since been
consistently recognized even by the courts of law in England. The origin
c
of this power of commitment for contempt, judicial in its nature, is thus
traceable to the conception of Parliament as primarily a court of justice - the
"High Court of Parliament".
86. In matters concerning import of powers and privileges of the House D
of Commons unto the legislature in India, while examining the issue, albeit
from the limited concern of the availability to State legislature under Article
194(3) of the power of commitment for contempt, this court in the UP
Assembly Case (supra) had administered a note of caution that must hold
good even for purposes at hand. At page 591 of the judgment, it was
observed thus:- E
"I 2 I. In this connection, it is essential to bear in mind the fact that
the status, of a superior Court of Record which was accorded to
the House of Commons, is based on historical facts to which we
have already referred. It is a fact of English history that the
F
Parliament was discharging judicial functions in its early career.
It is a fact of both historical and constitutional history in England
that the House of Lords still continues to be the highest Court of·
law in the country. It is a fact of constitutional history even today
that both the Houses possess powers of impeachment and attainder.
It is obvious, we think, that these historical facts cannot be G
introduced in India by any legal fiction. Appropriate legislative
provisions do occasionally introduce legal fictions, but there is a
I A,
limit to the power of law to introduce such fictions. Law can
introduce fictions as to legal rights and obligations and as to the
retrospective operation of provisions made in that behalf, but legal H
396 SUPREME COURT REPORTS [2007] 1 S.C.R.
A fiction can hardly introduce historical facts from one country to
another."
(Emphasis supplied)
87. In the UP Assembly (supra) Case, it was settled by this court that
a broad claim that all the powers enjoyed by the House of Commons at the
B commencement of the Constitution of India vest in an Indian legislature
cannot be accepted in its entirety because there are some powers which
cannot obviously be so claimed. In this context, the following observations
appearing at page 448 of the judgment should suffice:-
c " .... 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
D
Parliamentary Practice (16th ed.) 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
E in three ways, first by tke order of new writs to fill vacancies that
arise in the Commons in the course of a parliament; secondly, by
the trial of controverted elections; and thirdly, by determining the
qualifications of its members in cases of doubt [ibid, p. 175]. This
privilege again, admittedly, cannot be claimed by the House.
F 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."
88. The historical background of parliamentary privileges in India is to
be understood with reference to history of England and the Constitutional
...
G history of the Constitution of India.
Indian Constitutional History
The East India Company Act, 1784 formed the basis of the Indian
H Constitution till 1858. It created Commissioners for the affairs of India to
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 397
- ')
be appointed at home by the King. This was followed by the Charter Act, A
1833 that provided for a legisfative authority. In this dispensation, the
meetings of the Governor-General's Council for law-making were distinguished
from the meetings of the Council for discharging other, i.e., executive
functions. Macaulay, as Law Member of the Governor General Council,
against the backdrop of the insistence by the Executive Councilor of the
Governor General's Council that all the drafts of laws should be fully
B
~ considered by the Executive Council before they were laid before the
., Legislative Council for final passage, in his speech of 13th June, 1835,
described the deliberztive chamber as the "supreme Legislative Council",
and said "when the Parliament gave us the power of legislating it gave us
also, by necessary implication, all the powers without which it is impossible c
to legislate well", referring in this context particularly to power "to correspond
directly with the subordinate Governments"; "directly call for information
from any public functionary"; and "require the attendance of the military or
financial secretary". An expansion of the Legislative Council of India was
provided by the Charter Act of 1853, followed by certain further additions
D
... ' by the Acts of 1854 and 1861.
90. The period 1915-1950 indeed marks a definite advance in the history
of the development of parliamentary privilege in India. By the Government
of India Act, 1915, the entire position of Parliamentary privilege that
obtained before that time was consolidated. The Government of India Act, E
1915, provided in Section 63 that the Indian Legislature shall consist of the
Governor-General and "two chambers, namely, the Council of State and the
Legislative Assembly".
....... 91. Section 67 of the Act related to the business and proceedings of the
F
Indian Legislature. Sub-Section (1) enabled provision to be made by rules,
inter alia, "for regulating the course of business and the preservation of order
in the chambers of the Indian legislature"; "as to the persons to preside at the
meetings of the Legislative Assembly in the absence of the president and the
deputy president"; for "quorum"; and "for prohibiting or regulating the asking
of questions on, and the discussion of any subject specified in the rules". Sub- G
Section (6) allowed "Standing orders" to be made providing for the conduct
of business and the procedure, to be followed in either chamber of the Indian
..I -'.
Legislature in so-far-as these matters are not provided for by rules made under
this Act. Sub-Section (7) declared "Subject to the rules and standing orders
affecting the chamber" that there shall be "freedom of speech in both H
398 SUPREME COURT REPORTS [2007] I S.C.R.
A chambers of the Indian legislature"; and that no person shall "be liable to any
proceedings in any court by reason of his speech or vote in either chamber,
or by reason of anything contained in any official report of the proceedings
of either chamber".
92. The Government of India Act, 1919 brought about material changes
B in the Government of India Act, 1915. The legislature now ceased to be part
of the Executive and stood on its own. It was no longer an expanded
Governor-General's Council with additional members. The Governor General
and the Executive Councilor ceased to be ex-officio members of the Legislative
Council. The bicameral Indian Legislature would consist of both nominated
C and elected members.
93. Section 65 of the Government oflndia Act, 1915, as amended in
1919, provided for the powers of the Indian Legislature, subject to the
specific prohibition that it shall not have the powers, inter alia, to make laws
"unless expressly so authorized by Act of Parliament (of United Kingdom)",
D
amongst others, "affecting the authority of Parliament, or any part of the
unwritten laws or constitution of the United Kingdom of Great Britain and
Ireland whereon may depend in any degree the allegiance of any persons
to the Crown of the United Kingdom, or affecting the sovereignty or
domination of the Crown over any part of British India". The powers of
E legislation of the local legislatures were defined more or less similarly in
Section 80 A.
94. 'Parliamentary Privilege in India' by Prititosh Roy (1991 ), in Chapter-
4, titled 'Historical Background of Parliamentary Privilege in India (1915-
1950)' mentions, at page 53, about the Report dated 3rd December, 1924 of
F
the Reforms Inquiry Committee under the chairmanship of Sir Alexander
Muddiman (the Home Member), which included as members Sir Tej Bahadur
Sapru and Mr. Jinnah, which had examined the issue of powers of the Indian
Legislature and gave vent to the hope and aspiration of bringing legislatures
in India "at par with the House of Commons" and that "eventually no doubt
G similar provision will be made in the Constitution of British India". On the
basis of the Report, the Indian Legislature passed the Legislative Members
Exemption Act, 1925 (Act XXIII of 1925) which granted two new parliamentary
privileges; viz. the privilege of exemption of the legislator from jury service
and the privilege of freedom from arrest. These new privileges would be
H reflected in the Code of Criminal procedure 1898 by incorporation in Section
~
r
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 399
-,. 'r
323 and insertion of Section 135A respectively. A
95. Prititosh Roy mentions in "Parliamentary Privilege in India" [p-55),
the Legislative Assembly created under the Government of India Act, l 919
witnessed a number of instances wherein the privileges of a legislative body
-.....
.,
were asserted. These include the adjournment motion moved on 21st
January, l 927 by Pt. Motilal Nehru to discuss the conduct of the Government
in detaining Shri Satyendra Chandra Mitra, an elected member of the House,
on the ground it tantamounts to a breach of the Privileges of the House and
B
the adjournment motion in the Legislative Assembly moved by Shri Gaya
Prasad Singh on 4th September, 1928 agaim,t the Editor of the Times oflndia
having made an attack on the President. of the House, though disallowed but c
with the President having held that it is the inherent right of any assembly
to defend itself against outside attacks and it is perfectly open in a proper
cause for the House to table a substantive motion and pass a vote of
censure or condemnation on the attacker.
96. Prititosh Roy also mentions at Page 56 an interesting episode
D
" involving the Indian Press Act, 1931 that was enacted on 13th February,
1932. In its context, a question arose before the Legislative Assembly under
the Government of India Act, 1919 regarding breach of the privileges upon
a notice of motion having appeared in the Press given by a member.
Acknowledging that there was a convention in the House of Commons E
against release by a member to the Press for publication questions for
resolutions before they are admitted by the chair and that breach thereof
was treated as a serious breach of the privilege of the House of Commons
which had ample powers to deal with the member in question, the President
of Indian Legislative Assembly noted that "unfortunately neither this House F
I nor the Spokesmen have such powers" and commended that "this well
established convention, which is observed in the House of Commons
should also be observed as one of the conventions of this House".
97. Prititosh Roy refers at Pages 58-59 to Debates oflndian Legislative
Assembly [22nd January, 1935, p. 81 ff], which quote yet another incident G
that needs to be taken note of. Shri N.C. Bardaloi had raised an issue about
.... ....
the conduct of the Government in preventing Mr. Sarat Chandra Bose, an
elected Member of the House, from attending to his duties as Member and
thereby seriously infringing the privileges of the House. Sir N.N. Sircar, the
then Law Member of the Government of India replied stating that the House H
400 SUPREME COURT REPORTS [2007] 1 S.C.R.
-
A had no power to punish for its breach of privilege.
98. The Government of India Act, 1935 came into force on 1st April,
1937 and was operative till 14th August, 1947. Sections 28 and 71 of the
Government of India Act, 1935 dealt with the subject of Privileges etc. of
members of Federal Legislature and Provincial Legislatures respectively.
B
99. The provision in Sub-Section (1) of Section 71 extended the
freedom of speech and immunity to speech or vote even in the Committees
of the Legislature and also covering publication under the authority of a
Chamber of the Legislature of the House. Sub-Section (I) of Section 71, inter
a/ia, declared that "Subject to the provisions of this Act and to rules and
c standing orders regulating the procedure of the Legislature there shall be
freedom of speech in every Provincial Legislature" and that every member
shall be entitled to immunity from "any proceedings in any court in respect
of anything said or any vote gi'ven by him in the Legislature or any
committee thereof'.
D 100. Sub-Section (2) of Section 71 of the Government of India Act,
1935, for the first time, empowered the Provincial Legislature to pass an Act
to define the other privileges of the members and, pending such legislation,
the pre-existing privileges were confirmed. Some of the Provincial
Legislatures did legislate or attempt to legislate on this subject. Sub-Section
E (2) of Section 71 was on lines similar to present Article 194 (3). It read as
follows:-
"71.(2) In other respects the privileges of members ofa Chamber of
a Provincial Legislature shall be such as may from time to time be
defined by Act of the Provincial Legislature, and, until so defined,
F shall be such as were immediately before the commencement of this
Part of this ,A_ct enjoyed by members of the Legislative Council of
the Province."
IOI. Sub-Section (3) of Section 71 watered down the powers and
privileges of Indian Legislatures under the Government of India Act, 1935.
G It ran as follows:-
"71.(3) Nothing in any existing Indian Law, and, notwithstanding
anything in the foregoing provisions of this Section, nothing in
this Act, shall be construed as conferring, or empowering any
H Legislature to confer, on a chamber thereof or on both Chambers
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 401
sitting together or any Committee or officer of the Legislature, the A
status of a court, or any punitive or disciplinary powers other than
the power to remove or exclude persons infringing the rules or
standing orders, or otherwise behaving in a disorderly manner."
102. Clearly, the intendment was to restrict the powers and privileges
of Indian Legislatures to remedial action for unobstructed functioning, B
severely restricting, or rather forbidding, the exercise of punitive powers by
a House of Legislature.
103. Similar provisions, mutatis mutandis, were made for the Central
Legislature, called the Federal Legislature, under Section 28 which, however,
never came into force since Part II of the Act of 1935 concerning the
c
Federation of India never became operative. Sub-Section (1) of Section 28
of the Government of India Act, 1935, inter alia, declared that there shall
be "freedom of speech" in the Federal Legislature "Subject to the provisions
of this Act and to the rules and standing orders regulating the procedure",
and that "no member of the legislature shall be liable to any proceedings in D
any court in respect of anything said or any vote given by him in the
Legislature or any Committee thereof'.
104. Sub-Section (2) of Section 28 of the Government of India Act,
1935, for the first time, empowered the Federal Legislature to pass an Act E
to define the other privileges of the members and again, pending such
legislation, the pre-existing privileges were confirmed. Its language has a
resonance of what is employed in present Article 105 (3). It stated as
follows:-
r ' "28. (2). In other respects, the privileges of members of the Chambers
F
shall be such as may from time to time be defined by the Act of
-
the Federal Legislature, and, until so defined, shall be such as were
immediately before the establishment of the Federation enjoyed by
members of the Indian legislature."
G
10. Sub-Section (3) of Section 28 was designed to restrict the powers
and privileges of Indian Federal Legislature to remedial action for unobstructed
functioning. While preventing the legislature from exercising the powers of
the Court for any punitive or disciplinary powers, it allowed the limited
jurisdiction to remove or exclude the person infringing the rules or standing H
402 SUPREME COURT REPORTS [2007] I S.C.R.
A orders or otherwise behaving in a disorderly manner. It read thus:-
"28. (3). Nothing in any existing Indian Act, and, notwithstanding
anything in the foregoing provisions of this section, nothing in this
act, shall be construed as conferring, or empowering the Federal
legislature to confer, on either Chamber or on both Chambers
B sitting together, or on any committee or officer of the Legislature,
the status of the Court, or any punitive or disciplinary powers other
than a power to remove or exclude persons infringing the rules or
...
standing orders, or otherwise behaving in a disorderly manner."
c 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. (4). Provision may be made by an Act of the Federal Legislature
D 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.
E 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."
F ~
107. Prititosh Roy at Page 71 mentions that the above mentioned
provisions were found by the Legislatures to be ineffective and inadequate
for upholding the dignity and prestige of the legislature in India and for
safeguarding the fight and privileges of Members and officers thereof. This
became subject matter of grievance conveyed in a Memorandum by the
.
G President of the Indian Legislative Assembly to the Reforms Commissioner
of the Government oflndia on 29th January, 1938, raising a demand that the
Central as well as Provincial Legislature in India should have among other
I-
privileges also "the power to proceed in·contempt like the High Court and
inflict punishment on any pe~son who violates the privileges of the House
H and of the members thereof, or tries to bring the House or the President or
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 403
the Speaker into contempt" and for a request to be made to the Government A
oflndia to take immediate steps to get Sections 28 and 71 of the Government
of India Act, 1935 amended so as to secure for the Central and Provincial
Legislatures and the officers and members thereof "all the powers and
privileges which are held and enjoyed by the Speaker and members of the
British House of Commons".
B
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 Section 6(2), sovereign legislative
power on the Indian dominion abrogating the Imperial Doctrine of
Repugnancy in the following terms:- C
"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 D
of Parliament of the United Kingdom, or to any order, rule or
regulation made under any such Act."
109. The Governor General of India issued an Adaptation Order by
which, amongst others, the provisions of Section 28 of the Government of
India Act, 1935, excepting the sub-Sections (3) and (4), were brought into E
force for the first time for purposes of dominion legislature,. As a result,
aside from the "freedom of speech in the legislature", the law provided that
"in other respects the privileges of the members of the domain legislature"
shall be such as may from time to time bt: defined by dominion legislature
and, until so defined, should be such as were immediately before the F
establishment of the dominion enjoyed by the members of the Indian
legislature. The omission of sub-Section (3) and sub-Section (4) of Section
28 indicated that the restrictions on the exercise of punitive and disciplinary
powers by the legislature were being removed.
110. As a result of the omission of sub-Sections (3) & (4) of Section G
28 by the Order, the Central Legislature became entitled to pass any Act on
the subject of privileges under sub-Section (2) without any restriction and
assume punitive and disciplinary powers similar to those invested in the
.• "'
House of Commons in England. But then, the Central Legislature did not
pass any law on privileges in exercise of the enabling powers under Section H
404 SUPREME COURT REPORTS [2007] I S.C.R.
A 28 (2) of the Government of India Act, 1935, as adapted after Independence.
111. Dr. Ambedker, the Chairman of the Drafting Committee of the
Constitution, while mooting for the Parliamentary System similar to the one
obtaining in England noted, in the course of debates in the Constituent
Assembly, that in the latter jurisdiction, the Parliamentary System relies on
B the daily assessment of responsibility of the executive by Members of
Parliament, through questions, resolutions, no-confidence motions and
debates and periodic assessment done by the electorate at the time of
election; unlike the one in the United States of America a system far more
effective than the periodic assessment and far more necessary in a country
c like India. India thus adopted parliamentary Constitutional traditions.
112. The concept of parliamentary privileges in India in its modem 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
D 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:-
E
"85. (I) Subject to the .rules and standing orders regulating the
procedure of Parliament, there shall be freedom of speech in
Parliament
F (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.
....
..
G
(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.
H
-I 'r RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 405
(4) The provisions of clauses (1), (2), and (3) shall apply in relation A
l
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."
114. The reference to the House of Commons of the Parliament of the
United Kingdom provoked comment and intense debate. As is seen from the B
Constituent Assembly Debates (Volume 8of19.5.1949 page 143-149), Shri
H.V. Karnath suggested that draft Article 85 should truly rely upon our own
"""'!
precedents, our own traditions and no importation must be attempted. While
commending reference to be made instead to privileges "as were enjoyed by
the members of the Dominion Legislature of India immediately before c
commencement" of the Constitution, he spoke thus:-
"Sir, my knowledge of the various Constitutions is not as vast or
as profound as that of Dr. Ambedkar, but relying on my meagre
knowledge of these constitutions, I venture to state that this is the
first instance of its kind where reference is made in the Constitution D
of a free country to certain provisions obtaining in the constitution
~ of another State. I see no valid reason why this should be done.
It may be that the rights and privileges which we are going to
confer upon the Members of Parliament of free India will be
identical with, or more or less similar to, those enjoyed by the
Members of the House of Commons in the United Kingdom. But
E
may I ask, Sir, in all humility "ls it necessary or is it desirable, when
we are drafting our own Constitution that we should lay down
explicitly in an Article that the provisions as regards this matter will
be like those of the House of Commons in England?"
...., ...
F
It may be argued in support of this proposition that there is
!lothing derogatory to the dignity of our Constitution or of our
State in making reference to the United Kingdom. It may be further
reinforced by the argument that now we have declared India as a
full member of the Commonwealth, certainly there should be no
objection, or any sort of compunction in referring to the House of G
Commons in England. But may I suggest for the serious
consideration of the House as to whether it adds - it may not be
derogatory, or detract from the dignity of the Constitution - but
-''""" does it add to the dignity of the Constitution? We say that such
and such thing should be what it is in the United Kingdom or in H
406 SUPREME COURT REPORTS [2007) I S.C.R.
A America. Will it not be far better, far happier for us to rely upon
our own precedents, or our own traditions here in India than to
import something from elsewhere and incorporate it by reference in
the Constitution? Is it not sufficient to say that the rights and
privileges and immunities of Members shall be such as have been
enjoyed by the Members of the Constituent Assembly or Dominion
B Legislature just before the commencement of this Constitution?
Personally, I think, Sir, this would be far better. I venture to hope
that my honourable friends in this House will be inclined to the
same view that instead of quoting or citing the example of the
United Kingdom it would be far better for us to rely upon the
c tradition we have built up here. Surely, nobody will dispute the fact
that the privileges and immunities enjoyed by us here today are in
no way inferior to, or worse than, those enjoyed by Members of
the House of Commons in the United Kingdom.
As a matter of fact, I think most of us do not know what are
D
the privileges of the Members of the House of Commons. We
know very well what our privileges at present are. Therefore, Sir,
t
it is far better to build on our own solid ground, rather than rely
on the practices obtaining in other countries ...... "
E 115. Similar views were expressed in the course of the debate, amongst
others, by Shri Jaspat Roy Kapoor, Prof. K.T. Shah, Prof. Shibban Lal
Saxena, Mr. Naziruddin Ahmad, Dr. P.S. Deshmukh. Prof. K. T. Shah had also
proposed insertion of clause (5) in draft Article 85 in the following form:-
F "In all matters of the privileges of the House of Parliament or of
.members thereof the House concerned shall be the sole Judge and
any order, decree or sentence duly passed by that House shall be
enforced by the officers or under the authority thereof'.
116. Sir Alladi Krishnaswamy Iyer, while replying to the criticism, '·
G stated thus:-
"Sir, in regard to the Article as it stands, two objections have been
raised, one based upon sentiment and the other upon the advisability
of making a reference to the privileges of a House in another State
H with which the average citizen or the Members of Parliament here
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 407
may not be acquainted with. In the first place, so far as the A
question of sentiment is concerned, I might share it to some extent,
but it is also necessary to appreciate it from the practical point of
view. It is common knowledge that the widest privileges are
exercised by Members of Parliament in England. If the privileges
are confined to the existing privileges of legislatures in India as
at present constituted, the result will be that a person cannot be
B
punished for contempt of the House. The actual question arose in
Calcutta as to whether a person can be punished for contempt of
the Provincial Legislature or other legislatures in this country. It
has been held that there is no power to punish for contempt any
person who is guilty of contempt of the provincial or even the c
Central Legislature, whereas the Parliament in England has the
inherent right to punish for contempt. The question arose in the
Dominions and in the Colonies and it has been held that by reason
of the wide wording in the Australia Commonwealth Act as well as
in the Canadian Act, the Parliament in both places have powers
D
similar to the powers possessed by the Parliament in England and
therefore have the right to punish for contempt. Are you going to
deny to yourself that power? That is the question.
I will deal with the second objection. If you have the time and
if you have the leisure . to formulate all the privileges in a E
compendious form, it will be well and good. I believe a Committee
constituted by the Speaker on the legislative side found it very
difficult to formulate all the privileges, unless they went in detail
into the whole working of parliamentary institutions in England and
the time was not sufficient before the legislature for that purpose F
and accordingly the Committee was not able to give any effective
advice to the Speaker in regard to this matter. I speak, subject to
correction, because I was present at one stage and was not present
at a later stage. Under these circumstances I submit there is
absolutely no question of infra dig. We are having the English
language. We are having our Constitution in the English language G
side by side with Hindi for the time being. Why object only to
reference to the privileges in England?
The other point is that there is nothing to prevent the
Parliament from setting up the proper machinery for formulating H
408 SUPREME COURT REPORTS [2007] 1 S.C.R.
A privileges. The article leaves wide scope for it. "In other respects,
·r "1io--
the privileges and immunities of members of the Houses shall be
such as may from time to time be defined by Parliament by law and,
until so defined, shall be such as are enjoyed by the members of
..
the House of Commons of the Parliament of the United Kingdom
at the commencement of this Constitution." That is all what the
B
article says. It does not in any way fetter your discretion. You may
enlarge the privileges, you may curtail the privileges, you may have
a different kind of privileges. You may start on your own journey
;-
without reference to the Parliament of Great Britain. There is
nothing to fetter the discretion of the future Parliament of India.
c Only as a temporary measure, the privileges of the House of
Commons are made applicable to this House. Far from it being
infra dig, it subordinates the reference to privileges obtained by
the Members of Parliament in England to the privileges which may
be confe1Ted by this Parliament by its own enactments. Therefore,
D there is no infra dig in the wording of clause (3). This practice has
been followed in Australia, in Canada and in other Dominions
with advantage and it has secured complete freedom of speech
and also the omnipotence of the House in every respect. Therefore,
, "<
we need not fight shy of borrowing to this extent, when we are
~orrowing the English language and when we are using
E constitutional expressions which are common to England. You are
saying that it will be a badge of slavery, a badge of serfdom, if we ~
I
say that the privileges shall be the same as those enjoyed by the
members of the House of Commons. It is far from that. Today the
Parliament of the United Kingdom is exercising sway over Great
F Britain, over the Dominions and others. To say that you are as
good as Great Britain is not a badge of inferiority but an
,., ..,
assertion of your own self-respect and also of the omnipotence of
your Parliament. Therefore, I submit, Sir, there is absolutely no )::
force in the objection made as to the reference to the British ~
G Parliament. Under these circumstances, far from this article being "
framed in a spirit of servility or slavery or subjection to Britain,
- ...
it is framed in a spirit of self-assertion and an assertion that our
country and our Parliament are as great as the Parliament of
Great Britain. " r
(Emphasis supplied)
H
P-
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 409
117. Dr. Ambedkar when invited by the President to speak, expressed A
- i
satisfaction with the reply already given by Mr. Alladi by saying "Mr. Alladi
and others have already given the reply, and I will be saying mostly the
same thing, probably in a different way".
118. The amendment moved by Prof. Shah was negatived by the
Constituent Assembly on 19th May, 1948. After adoption of a minor
B
amendment, for including the Committees of the Houses of Parliament, Draft
Article 85 (present Article 105) was adopted and added to the Constitution.
119. Article 169 of the Draft Constitution, which corresponds to
present Article 194, contained similar provision with respect to privileges of c
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).
Shri H.V. Karnath took exception in the following words:-
D
"Mr. President, I shall, by your leave, say a few words with respect
to clause (3) of this Article. I do not propose to repeat what I said
on an earlier occasion when we were discussing the corresponding
clause relating to the privileges of members of the Central Parliament.
But I should like to invite the attention of Dr. Ambedkar and also E
of the H_ouse to the reaction among the people as well as in the
Press to the clause that we adopted on that occasion. I have no
doubt in my own mind that Dr. Ambedkar keeps his eyes and ears
open, and cares to read some of the important papers daily or at
least has them read to him daily. Soon after this clause relating to
...., ..,
F
the privileges of Members of Parliament was adopted in this House,
most of the Press was critical of the way in which we had dealt with
the matter ............................. Britain, as the House is aware, has an
unwritten Constitution though this particular measure may be
written down in some document. .............. Many of the Members
here who spoke on that occasion remarked that they did not know G
what the privileges of the Members of the House of Commons
were, ...... .... They could have at least drafted a schedule and
incorporated it at the end of the Constitution to show what the
privileges of the members of the House of Commons were. That
was not done, and simply a clause was inserted that the privileges H
410 SUPREME COURT REPORTS [2007] 1 S.C.R.
A obtaining there will obtain here as well. Nobody knows what those
are, and a fortiori nobody knows what privileges we will have. Our
Parliament presided over by Mr. Mavalankar has adopted certain
rules of business and procedure tentatively, and has also appointed
or is shortly going to appoint a Committee of Privileges. I wonder
why we could not have very usefully and wisely adopted in our
B Constitution something to this effect, that whatever privileges we
enjoy as Members of the Central Parliament will be enjoyed by
Members of the Legislature in the States. If at all there was a need
for reference to any other Constitution. I think it was very unwise
on the part of the Drafting Committee to refer to an unwritten
c Constitution, viz., the Constitution of Great Britain. There is the
written Constitution of the U.S.A., and some of us are proud of the
fact that we have borrowed very much from the American
Constitution. May I ask Dr. Ambedkar whether the privileges of the
Members of the House of Commons in the United Kingdom are in
any way superior to or better than the privileges of the Members
D
of the House of Representatives of the United States? If they are,
I should like to have enlightenment on that point. If they are not,
I think the reference to an unwritten Constitution is not at all
desirable. .......... .If necessary let us put in a schedule to our
Constitution, and say here in this Article that the privileges and
E rights are as specified in the Schedule at the end.... I would any
day prefer a definite schedule in the Constitution showing what
privileges shall be enjoyed by Members of the Legislatures and of
Parliament. This particular clause, to my mind, should be recast. We
have passed one clause on an earlier occasicn, but that is no
F reason why we should perpetrate the same mistake over and over
again. I would, therefore, beg of Dr. Ambedkar and his wise team
of the Drafting Committee and the House to revise this clause, and
if necessary, to go back to the other clause, if they are convinced
of the wisdom of this course, and: revise that also ~ccordingly, and
proceed in a saner and a wiser manner."
G
120. Dr. B.R. Ambedkar, Chairman of the Drafting Committee, trying to
allay doubts, answered the criticism in the following manner:-
;-. ,.
"Sir, not very long ago this very matter was debated in this House,
H when we were discussing the privileges of Parliament and I thought
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 411
!hat as the House had accepted the Article dealing with the A
privileges and immunities of Parliament no further debate would
follow when we were really reproducing the very same provision
with regard to the State Legislature. But as the debate has been
raised and as my friend Mr. Karnath said that even the press is
agitated, I think it is desirable that I should state what exactly is
the reason for the course adopted by the Drafting Committee,
B
especially as when the debate took place last time I did not
intervene in order to make the position clear.
I do not know how many Members really have a conception
of what is meant by privilege. Now the privilege which we think of c
fall into two different classes. There are first of all, the privileges
belonging to individual members, such as for instance freedom of
speech, immunity from arrest while discharging their duty. But that
is not the whole thing covered by privilege.
D
xxxxxxxxxxxxxxx
.......... It is not easy, as I said, to define what are the acts and deeds
which may be deemed to bring Parliament into disgrace. That would
require a considerable amount of discussion and examination. That
is one reason why we did not think of enumerating these privileges E
and immunities.
But there is not the slightest doubt in my mind and I am sure
also in the mind of the Drafting Committee that Parliament must
have certain privileges, when that Parliament would be so much F
exposed to calumny, to unjustified criticism that the Parliamentary
institution in this country might be brought down to utter contempt
and may lose all the respect which parliamentary institutions
should have from the citizens for whose benefit they operate.
I have referred to one difficulty why it has not been possible G
to categorise. Now I should mention some other difficulties which
we have felt.
It seems to me, if the proposition was accepted that the Act
itself should enumerate the privileges of Parliament, we would have H
412 SUPREME COURT REPORTS [2007] I S.C.R
A to follow three courses. One is to adopt them in the Constitution,
namely to set out in detail the privileges and immunities of Parliament
and its m~mbers. I have very carefully gone over May's
Parliamentary Practice which is the source book of knowledge with
regard to the immunities and p~ivileges of Parliament. I have gone
over the index to May's Parliamentary Practice and I have noticed
B
that practically 8 or 9 columns of the index are devoted to the
privileges and the immunities of Parliament. So that if you were to
enact a complete code of the privilege and immunities of Parliament
based upon what May has to say on this subject, I have not the
least doubt in my mind that we will have to add not less than
c twenty or twenty five pages relating to immunities and privileges
of Parliament. I do not know whether the Members of this House
would like to have such a large categorical statement of privileges
and immunities of Parliament extending over twenty or twenty five
pages. That I think is one reason why we did not adopt that course.
D
The other course is to say, as has been said in many places
in the Constitution, that Parliament may make provision with regard
to a particular matter and until Parliall).ent makes that provision the
existing position would' stand. That is the second course which we
could have adopted. We would have said that Parliament may
E
define the privileges and immunities of the members and of the
body itself, and until that happens the privileges existing on the
date on which the Constitution comes into existence shall continue
to operate. But unfortunately for us, as honourable Members will
know, the 1935 Act conferred no privileges and no immunities on
F Parliament and its members. All that it provided for was a single
provision that there shall be freedom of speech and no member
shall be prosecuted for anything said in the debate inside
Parliament. Consequently that course was not open, because the
existing Parliament or Legislative Assembly possesses no privilege
G and n~ immunity. Therefore we could not resort to that course.
The third course open to us was the one which we have
followed, namely, that the privileges of Parliament shall be the
privileges of the House of Commons. It seems to me that except for
the sentimental objection to the reference to the House of Commons
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 413
' .,
I cannot see that there is any substance in the argument that has A
been advanced against the course adopted by the Drafting
Committee. I therefore suggest that the article has adopted the only
possible way of doing it and there is no other alternative way open
to us. That being so, I suggest that this article be adopted in the
way in which we have drafted it."
B
(Emphasis supplied)
121. Dr. Ambedkar thus reiterated the justification given by Mr. Alladi
earlier, adding that the cataloguing of all powers and privileges would have
added to the volume of the Constitution and that the course of adopting the
powers and privileges of the existing legislature under Government of India
c
Act, 1935 was inadvisable as that body had hardly any rights available. The
draft Article 169 (corresponding to present Article 194) was adopted after
the above mentioned explanation and made part of the Constitution.
. 122. The Constitution thus adopted through Articles 105 and 194, for D
the Parliament and the State Legislatures respectively, the same powers,
privileges and immunities as vested at the commencement of the Constitution
in the House of Commons of the Parliament of United Kingdom, until they
were "defined by law". From this perspective, the learned Additional
Solicitor General is not wrong when he says that the establishment of E
privileges in India at par with those existing in the House of Commons was
not reflective of a colonial legacy but, it was an assertion of the truly
sovereign nature of the Indian Parliament.
123. The above discussion shows that the reference to the privileges F
of the House of Commons was justified on grounds of self-assertion that
free India and its Parliament are as great as the Parliament of Great Britain.
The replies above quoted also show that the drafting committee was more
concerned about giving to the Parliament the widest privileges as exercised
by members of Parliament in England, including the power to punish for G
contempt of the House. Full fledged provisions listing out the powers and
privileges was not possible as there was not sufficient time or the leisure
to formulate all of them in a compendious form, as had been found by a
Committee constituted by the Speaker on the legislative side. That is why
a wide scope and unfettered discretion was being left for the future
H
414 SUPREME COURT REPORTS [2007] 1 S.C.R.
A Parliament oflndia to set up the proper machinery for formulating privileges,
which could be enlarged or curtailed. The adoption of the powers and
privileges of the House of Commons was only as a temporary measure,
following the practice that had been followed in Australia, in Canada and
in other Dominions with advantage to secure complete freedom of speech
B and also the omnipotence of the legislature in every respect.
124. We would like to dispose of here itself a small argument put across
by learned Counsel for the Petitioners. The argument is that the fact that the
provisions of Article I 05 were amended by the Constitution (44th Amendment)
Act, 1978, thereby deleting the reference to the House of Commons with
c effect from 20th June, 1979, the subject of powers and privileges are to be
construed and pegged to that date and further that since the House of
Commons had not exercised the power of expulsion after 1947, such power,
even ifit existed in the House of Commons in 1947 has become obsolete and
non-existing. While arguing that such power has not been inherited by the
D Indian Parliament, counsel would also refer to certain recent developments
in United Kingdom, in particular Parliamentary Privilege-First Report, published
on 30.03.1999, in the wake of which a recommendation has been made that
"the Parliament's power to imprison person whether member or not, who are
in contempt of Parliament should be abolished" and further that, "the power
E of the House of Lords to suspend its members should be clarified and
confirmed".
125. We are not impressed with any of these arguments. The amendment
brought into force in 1979 does not tum the clock ahead. The powers and
privileges of the House of Commons of the Parliament of the United
F Kingdom as on the date of commencement ofthe Constitution of India were
the p0wers and privileges available to the Parliament before the amendment
and that is the package which continues to be available post-amendment.
Use of a particular power in 1947 would rather make it closer in terms of time
to the crucial date of commencement of Indian Constitution. Its disuse in
G later period is of no consequence. In this view, we are also not concerned
with subsequent developments.
,,
....__
126. We are, thus, back at the issue of powers and privileges of the r
House of Commons of the Parliament of the United Kingdom as on the date J=
of commencement of the Constitution of India.
H
t,.
l .
).
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 415
-·.., Powers, Privileges and Immunities - generally A
127. As already noticed, Articles 105 and 194 employ almost identical
language. Article 194 was at the core of the controversy in the UP Assembly
(supra) Case.
)
128. Dealing with the provisions contained in Clause (1) of Article 194, B
this Court observed thus:-
-'I
" ...... Clause (I) makes it clear that the freedom of speech in the
legislature of every State which it prescribes, is subject to the
provisions of the Constitution, and to the rules and standing
orders, regul~t~ng the procedure of the legislature. While interpreting c
this clause, it is necessary to emphasise that the provisions of the
:•'""'"'
Constitution to which freedom of speech has been conferred on the
legislators, are not the general provisions of the Constitution but
only such of them as relate to the regulation of the procedure of
the legislature. The rules and standing orders may regulate the D
-.. procedure of the legislature and some of the provisions of the
Constitution may also purport to regulate it; these are, for instance,
Articles 208 and 211. The adjectival clause "regulating the procedure
. of the legislature" governs both the preceding clauses relating to
"the proviSions of the Constitution" and "the rules and standing
orders". Therefore, clause (I) confers on the legislators specifically
E
the right offreedom of speech subject to the limitation prescribed
by its first part. It would thus appear that by making this clause
subject only to the specified provisions of the Constitution, the
Constitution-makers wanted to make it clear that they thought it
necessary to confer on the legislators freedom of speech separately F
and, in a sense, independently of Article 19(1 )(a). If all that the
legislators were entitled to claim was the freedom of speech and
expression enshrined in Article 19(l)(a), it would have been
unnecessary to confer the same right specifically in the manner
adopted by Article 194(1); and so, it would be legitimate to
G
conclude that Article 19(/)(a) is not one of the provisions of the
Constitution which controls the first part of clause (1) of Article
'\
194."
(Emphasis supplied)
"" 129. Taking note of Pandit Sharma (!), it was reiterated in the UP H
416 SUPREME COURT REPORTS [2007] 1 S.C.R.
A Assembly (supra) Case that clause (1) of Article 194 no doubt makes a
substantive provision of the said clause subject to the provisions of the
Constitution; but in the context, those provisions cannot take in Article
19(l)(a), because latter article does not purport to regulate the procedure of
the legislature and it is only such provisions of the Constitution which
regulate the procedure of the legislature which are included in the first part of
B Article 194(1)
130. On the provisions of clause (2) of Article 194, this is what the
Court found:-
"It is plain that the Constitt1_tion-makers attached so much
c importance to the necessity of absolute freedom in debates within
the legislative chambers that they thought it necessary to confer
complete immunity on the legislators from any action in any court
in respect of their speeches in the legislative chambers in the wide
terms prescribed by clause (2). Thus, clause (1) confers freedom
D of speech on the legislators within the legislative chamber and
clause (2) makes it plain that the freedom is literally absolute and
unfettered "
(Emphasis supplied)
131. In the context of the all important clause (3) of Article 194, the
E Court observed thus:-
" ........ 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
F 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)."
G
(Emphasis supplied)
132. The above quoted observations squarely apply to the
corresponding clauses of Article 105 of the Constitution.
H 133. In the context of the noticeable omission in other clauses,
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 417
._. i
including clause (3), of the expression "Subject to the provisions of this A
Constitution" as used in clause ( 1) of Article 194, this Court felt:
" ........ all the four clauses of Article 194 are not in terms made
subject to the provisions contained in Part III. In fact, clause (2) is
couched in such wide terms that in exercising the rights conferred
on them by clause (I), ifthe legislators by their speeches contravene
B
any of the fundamental rights guaranteed by Part III, they would
not be liable for any action in any court. Nevertheless, iffor other
valid considerations, it appears that the contents of clause (3)
may not exclude the applicability of certain relevant provisions
of the Constitution, it would not be reasonable to suggest that c
those provisions must be ignored just because the said clause does
not open with the words "subject to the other provisions of the
Constitution". In dealing with the effect of the provisions contained
in clause (3) of Article 194, wherever it appears that there is a
conflict between the said provisions and the provisions pertaining D
to fundamental rights, an attempt will have to be made to resolve
the said conflict by the adoption of the rule of harmonious
construction"
(Emphasis supplied)
134. The argument that though Article 194(3) had not been made E
subject to the provisions of the Constitution, it does not necessarily mean
that it is not so subject, and that the several clauses of Article 194 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, of course, would include part III of the F
Constitution had been earlier rejected by tl;iis Court through unanimous view
on the subject in Pandit Sharma (!).
135. It is incumbent in view of Article 105 (3) to trace the power of
expulsion with reference to the powers, privileges and immunities recognized
as vesting in the House of Commons of Parliament of United Kingdom G
as on the date of commencement of the Constitution of India, that is
26th January 1950. If such a power or privilege vested in the said
legislature, the question would arise as to whether it could be part of the
inheritance for Indian legislatures in the face of the provisions of its written
Constitution. H
418 SUPREME COURT REPORTS [2007] l S.C.R.
A 136. It is settled that out of entire bouquet of privileges and powers
which the House of Commons claimed at the time of its bitter struggle for
recognition during the 17th through 19th centuries, all have not survived the
test of time. Some were given up. Some others faded out by desuetude. In
this context, this Court in UP Assembly Case opined thus:-
B " ....... .in every case where. a power is claimed, it is necessary to
enquire whether it was an existing power at the relevant time. It
must also appear that the said power was not only claimed by the
House of Commons, but was recognised by the English Courts. It
would obviously be idle to contend that if a particular power which
c is claimed by the House was claimed by the House of Commons
but was not recognised by the English courts, it would still be
upheld under the latter part of clause (3) only on the ground that
it was in fact claimed by the House of Commons. In other words,
the inquiry which is prescribed by this clause is: is the power in
question shown or proved to have subsisted in the House of
D
Commons at the relevant time?"
(Emphasis supplied)
13 7. The argument of availability of all the powers and privileges has
been rejected in UP Assembly Case with reference to illustrations of some
E powers claimed by the House of Commons as mentioned in May's
Parliamentary Practice (pages 86 & 175 in 16th Ed.), but which cannot be
claimed by the Indian legislatures, including the privilege of freedom of
access which is exercised by the House of Commons as a body and through
its Speaker "to have at all times the right to petition, counsel, or remonstrate
F with their Sovereign through their chosen representative and have a
favourable construction placed on his words was justly regarded by the
Commons as fundamental privilege"; the privilege to pass acts of attainder
and impeachments; and the privilege in regard to its own Constitution which
is 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
G trial of controverted elections; and thirdly, by determining the qualifications
of its members in cases of doubt.
Plea of negation by other Constitutional provisions
H 138. Before we consider the question whether the power of expulsion
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 419
can be read within Article 105(3) or not, it is necessary first to decide the A
question: will reading such a power under Article 105(3) violate any other
provisions of the constitution. In other words, whether power of expulsion
would be inconsistent with other provisions of the Constitution of India.
139. According to the Petitioners the power of expulsion is inconsistent
B
with the following provisions of the Constitution:-
(i) The provisions relating to vacancy and disqualifications [Articles
101-103];
(ii) The provisions relating to salaries and allowances of members C
and their right to hold office till the end of the term [Article I 06
and Article 82(3)];
(iii) Citizen's right to vote and right of representation of their
constituency in Parliament ; and D
(iv) The fundamental rights of the MPs.
"""·
(i} Provisions relating to vacancy and disqualification:
140. The Petitioners have relied on Articles 10 I, I 02 and I 03 of the
E
Constitution in support of their contention. The submission is that these
Articles (relating to vacancy and disqualification) are exhaustive regarding
the termination of membership of the ParliaGJ.ent and that no additional
ground can exist based on which the membership of a sitting Member of
Parliament can be terminated. Articles l 0 I, I 02 and I 03 appear under the F
sub-heading "Disqualifications of Members" in Chapter II of Part V of the
Constitution.
141. Learned counsel for the Petitioners submit that since the Parliament
can create an additional disqualification by law, it was open to it to pass a G
law seeking to disqualify from continuing the membership of such members
as are guilty of conduct unworthy of a member. Such a law not having been
passed, the petitioners submit, the termination of membership cannot take
~.
place through a resolution of the House purporting to act under Article
105(3). Articles 190 and 191 which pertain to the vacation of seats and
H
420 SUPREME COURT REPORTS [2007) 1 S.C.R.
A disqualifications for membership of State legislatures, correspond to, and are
on identical terms as, Articles 101 and 102.
142. It is necessary to understand the exact import of the terms
'vacancy', 'disqualification' and 'expulsion'.
B 143. These terms have different meanings and they do not overlap.
Disqualification strikes at the very root of the candidate's qualification and
renders him or her unable to occupy a member's seat. Expulsion, on the
other hand, deals with a person who is otherwise qualified, but in the
opinion of the House of the legislature, unworthy of membership. While
c disqualification operates to prevent a candidate from re-election, expulsion
occurs after the election of the member and there is no bar on re-election.
As far as the term 'vacancy' is concerned, it is a consequence of the fact
that a member cannot continue to hold membership. The reason may be any
one of the several possible reasons which prevent the member from
D continuing membership, for example disqualification, death or expulsion.
144. In view of above, it is not possible to accept the submission that
the termination of membership can be effected only in the manner laid down
in Articles 101 and 102. While these articles do speak of qualifications for
and continuation of membership, in our view they operate independently of
E Article 105(3 ). Article 105(3) is also a constitutional provision and it demands
equal weight as any other provisfon, and neither being 'subject to the
provisions of the constitution', it is impossible to accord to one superiority
over the other. We cannot accept the submission that the provisions in
Articles 101 or 102 restrict in any way the scope of 194(3). There is no reason
F for them to do so. Though disqualification and expulsion both result in the
vacancy of a seat, there is no necessity to read one in a way that restricts ;''
the scope of the other. The expulsion on being found unfit for functioning
within the House in no way affects the qualifications that a member must
fulfill, and there is no reason for the latter to affect expulsion. Both of the
provisions can operate quite harmoniously. We fail to see any inconsistency
G between the two. Nor do we find any reason to support the claim that
provisions under Articles 101 and 102 are exhaustive and for that reason,
Article 105(3) be read as not to include the power of expulsion. Further,
death as a cause for vacancy of a seat is also not mentioned in the relevant
provisions. Similarly, it is not necessary for expulsion to be mention,~d, if
H there exists another constitutional provision that provides for such a power.
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 421
It is obvious that upon expulsion, the seat of the member is rendered vacant A
and so no specific recognition of this provision is necessary within the
provision relating to vacancy. Thus, the power of expulsion cannot be held
to be inconsistent with these provisions.
145. While interpreting Article 194, three High Courts have rightly
rejected similar contentions {Yashwant Rao Meghawale v. Madhya Pradesh B
Legislative Assembly, AIR ( 1967) MP 95, Hardwari Lal, ILR ( 1977) 2 P&H
269 (FB)], K. Anbazhagan v. TN Legislative Assembly, AIR (1988) Mad. 275.
An almost identical question was raised in an Australian case of Armstrong
v. Budd, [1969] 71 SR 386 (NSW). The question in that case was whether
Section 19 of the Constitution Act which provided for circumstances of C
vacation of seats of Legislative Councillors was exhaustive so as to prevent
the power of expulsion. The Court rejecting the argument that section 19 was
exhaustive stated:-
" ......... but cannot be argued thats. 19 constitutes a complete code
for the vacation of a seat or contains the only criteria upon which
D
a vacancy can occur .... "
...
146. Thus, we are unable to accept the Petitioners' contention that
Articles 101 and 102 are exhaustive with respect to termination of membership.
Therefore, power of expulsion cannot be said to be inconsistent with these E
provisions.
147. In connection with this issue, the Petitioners have also relied on
two other provisions. First, they would submit that sections 7-lOA of the
Representation of Peoples Act, 1951 lay down exhaustive provisions on F
disqualification, implying that all disqualifications must be made by law.
Indeed, there is no quarrel with this position. In fact, it has been held by
this Court in Shrikant v. Vasantrao, [2006] 2 SCC 682 that "it is not possible
to add to or subtract from the disqualifications, either on the ground of
convenience, or on the grounds of equity or logic or perceived legislative
intention". However, as discussed earlier, disqualification and expulsion are G
two different concepts altogether, and recognizing the Parliament's power to
expel under Article 105(3) does by no means amount to adding a new ground
for disqualification.
148. The other provision that the Petitioners have reiied upon is Article H
\
422 SUPREME COURT REPORTS [2007] I S.C.R.
A 327 of the Constitution. This article enables the Parliament, subject to the
other provisions of the Constitution, to make provisions by law for "all other
matters necessary for securing the due constitution of the H6u~e;;:-: They
would also refer to Entry 74 of List I of the Seventh Schedule which confers
upon the Parliament the competence to legislate on the power, privileges and
immunities of the Houses of Parliament. The argument is that the Parliament
B can only claim additional powers by making a law. However, we are unable
to accept this contention, since Article I 05(3) itself provides the power to
make a law defining powers and privileges and further the position that all
the privileges of the House of Commons vest in the Parliament until such
a law is passed. Article 327 pertains to the constitution of the House insofar
c as election matters, etc. are concerned. It does not refer to privileges that
the Parliament enjoys.
149 Thus, we find that the power of expulsion is not negated by any
of the above constitutional or statutory provisions.
D (ii) Provisions relating to salary etc. and the right to a flXed term:
150. It was further argued by the Petitioners, that provisions in the
constitution relating to salary and the term for which they serve in the
House are constitutional rights of the members and the power of expulsion,
E by terminating their membership violates these constitutional rights.
151. The relevant provisions in the constitution are Article 106 on the
subject of salaries and Article 83(2) in relation to the duration of the Houses
of Parliament.
F 152. The Petitioners have relied on these above constitutional provisions
and submitted that an expulsion of a Member of Parliament would result in
the violation of the above rights guaranteed to him. The claim of the other
side is that the decision to expel does not violate these rights. Firstly, it has
been argued that the article laying down the duration of the House does not
guarantee a term for the member. Various circumstances have been pointed
G out under which the term held by a member can be much less than five years,
regardless of what is stated in Article 83(2). Seeondly, it has been argued
that Article l 06, whicll lays down prov~~iq1:1sJor--.the salary of the member,
is dep~ndent :upQQ,~e person's ~e~b~'tsliip.,t is only as long as the person
continues to be a member that he can draw the salary. When the membership
H terminates, the provisions of Article 106 become inapplicable.
... 1
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 423
*
.
y
153. Similar arguments were made in the case of K. Anandan Nambiar A
( v. ChiefSecretary, State of Madras, AIR (1966) SC 657. In that case, certain
members of Parliament were detained by the Government of Madras and one
of the grounds on which they challenged their detention was the violation
of their constitutional rights. In support of this contention, the Petitioners
relied on various provisions relating to members and proceedings of the
Parliament including Articles 79, 85, 86 and 100. They claimed that they
B
continued to exercise all the 'constitutional rights' that flow from membership
unless the member is disqualified. The contention was that "if a Member of
Parliament incurs a disqualification, he may cease to be such member, but
if he continues to be. qualified to be a member, his constitutional rights
cannot be taken away by any law or order". This Court rejected this c
argument holding that:-
" .....they are not constitutional rights in the strict sense, and quite
clearly, they are not fundamental rights at a/I" ~
(Emphasis supplied)
D
154. Although this case involved detention and the arrest of the
members of Parliament, which are matters relating to field distinct from that
of the rights claimed in the cases at hand, we are of the view that the logic
in the case applies equally to the present situation. In this case certain
provisions regarding members and their functioning within the Parliament E
w~re held not to create independent rights which could be given supremacy
over a legal detention. Similarly, in the present case, where there is a lawful
expulsion, the members cannot claim that the provisions relating to salaries
and duration of the House create such rights for the members that would
have supremacy over the power of expulsion of the House.
- 1
F
155. With specific reference to the power of expulsion, a similar
argument with respect to the duration of the Legislative Assembly of a State
was rejected by the Madras High Court in the K Anbazhagan (supra). The
High Court rightly held that such a provision could not negate the power
of expulsion. It stated:
G
"Therefore, it cannot be said that merely because Article 172
..__ provides for a period of five years to be the duration of the
/ -,
Legislative Assembly each member must necessarily continue to be
a member for five years irrespective of the other provisions of the
Constitution". H
424 SUPREME COURT REPORTS [2007] I S.C.R.
A 156. As far as the provision for the duration of the House is concerned,
it simply states that the normal duration of a House is to be five years. It
cannot be interpreted to mean that it guarantees to the members a term of
five years. The Respondents have correctly pointed out that a member does
not enjoy the full five-year term under various circumstances; for example,
when he or she is elected mid-term, when the term of the House is cut short
B by dissolution, when the member stands disqualified or the seat is rendered
vacant. We find that a correct view in this regard has been taken in K.
Anbazhagan, in line with the view expressed by this Court in K. Anandan ...
Nambiar. If the provisions mentioned by the petitioners were actually to
create rights in respect of members, then each of the above situations would
C be liable to be challenged for their violation. This quite obviously is not
what is intended by the Constitution. Expulsion is only an additional cause
for the shortening of a term of a member.
157. Further, as far as the provision relating to the salary of the member
is concerned, it is quite absurd to claim that because the Constitution makes
D a provision for salaries, the power of the House to expel is negated since
the result would be that the member would no longer be paid. Salaries are
obviously dependent upon membership, and the continuation of membership
is an independent matter altogether. The termination of membership can i-
occur for a variety of reasons and this is at no point controlled by the fact
E that salaries are required to be paid to a member.
158. Thus, in our view, the _above provisions do not negate the power
of expulsion of the House, and there is no inconsistency between the .>'
House's power of expulsion and the said provisions.
F (iii) The right of the constituency to be represented and the right to vote: ( .
159. The next contention of behalf of the Petitioners has been that in
the democratic set-up adopted by India, every citizen has a right to vote and
to be duly represented. It was argued that expelling a member who has been
elected by the people would violate the democratic principles and the
G constituency would go unrepresented in the Parliament. They submit that
the right to vote ought to be treated as a fundamental right and that the
power of expulsion violates various democratic principles. On the other
hand, the learned Counsel for Union of India submitted that the right to be
represented is not an absolute right, and that expulsion does not create a
H bar for re-election.
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 425
- 160. We are unable to accept the contentions of the petitioners. In this
regard, it is first important to note that the right to vote has been held to
be only a statutory right, and not a constitutional or a fundamental right (see
Shrikant V. Vasantrao, [2006) 2 sec 682 and Ku/dip Nayar V. Union of
A
India, [2006] 7 SCC 1.
161. While it is true that the right to vote and be represented is integral B
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, c
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, D
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. E
I62. 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:
F
163. 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( I )(g), which guarantees the
right to 'practise any profession, or to carry on any occupation trade of
business'. It was submitted that this right can only be curtailed by a law in G
the interest of general public and that producing the same result 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'.
H
426 SUPREME COURT REPORTS [2007] 1 S.C.R.
A 164. We are not impressed with any of these conteµtions 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).
165. First, it is to be remembered that 105(3) is itself a constitutional
B provision· and it is necessary that we must construe the provisions in such
a way that a conflict with other provisions is avoided. We are of the view
that where there is a specific constitutional provision as may have the effect
of curtailing these fundamental rights if found applicable, there is no need
for a law to be passed in terms of Article 19(6). For example, Article 102
c relating to disqualifications provides that members who are of unsound mind
or who are undischarged insolvents as declared by competent courts are
disqualified. These grounds are not mentioned in the Representation of
Peoples Act, 1951. Though this provision would have the effect of curtailing
the rights under Article 19(1 )(g), we doubt that it can ever be contended that
a specific law made in public interest is required. Similarly, if Article 105(3)
D
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
E a law is made. Thus, we find that Article 19(1 )(g) cannot prevent the reading
of power of expulsion under Article l 05(3 ).
166. Finally, as far as Article 21 is concerned, it was submitted that the
'procedure established by law' includes the rules relating to the Privileges
F Committee, etc., wnich 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 l 05(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
G 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 ~rder. But,
it cannot negate the power of expulsion.
H
t RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 427
167. In the light of the above discussion, we hold that the power of A
expulsion does not come into conflict with any of the constitutional
provisions and thus cannot be negated on this basis.
168. Let us now consider the argument in relation to the power of self
composition of House of Commons.
B
Power of self composition
169. The history of England is replete with numerous instances wherein
the power of expulsion was exercised by the House of Commons. It has been
strenuously argued by Mr. Jethmalani and Mr. Lekhi that all the powers and
privileges of the House of Commons have not been inherited by the
c
legislative organ under the Constitution of India and power of expulsion is
one such power. To consider this contention, it is necessary to find out
the true nature and character of the power of expulsion claimed by the
House of Commons.
D
170. It is true that certain privileges of the House of Commons are not
available to any legislative body in India, whether at the Union level or in
the States, even under clauses (3) of Articles 105 or 194 of the Constitution.
171. The case of the petitioners is that the House of Commons derives
the power to expel its members solely from its privilege of regulating its E
composition, and from no other source. In other words, they submit that the
power of expulsion has always been claimed and exercised by the House of
Commons as one that stems from the power of the House of Commons to
determine its own composition including the fitness of elected members to
remain members. Power of expulsion is a facet of and is part & parcel of this F
basic privilege of the House of Commons to provide for and regulate its own
Constitution. The House of Commons has always claimed an unrestricted
and un-canalized power of expelling anyone of its members for historical
reasons and as an adjunct of the ancient and peculiar privilege of determining .
its own composition. It has resorted to this power of expulsion in numerous
cases which have not the remotest relevance to either a breach of privilege
G
or to the commission of contempt or as a measure of punishment for
ordinary crimes.
172. The argument is that since the Parliament of India does not have
the power to provide for or regulate its own constitution, power of expulsion H
428 SUPREME COURT REPORTS [2007] l S.C.R. +
A cannot be found conferred by Article 105 on the Houses of Parliament. In
this respect, the petitioners would place reliance on the conclusion, reached, .P-
with reference to May's Parliamentary Practice [16th ed., p.175], in the UP
Assembly Case (at page 448) to the effect that the legislature in India cannot
claim privilege of the House of Commons "in regard to its own Constitution"
which is "expressed in three ways, first by the order of new writs to fill
B 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".
173. That the legislatures established under the Constitution of India
C do not have the power of self composition cannot be a subject matter of
controversy. It was clearly so observed in UP Assembly Case.
174. The Legislative organs in India, both Parliament and the State
legislatures, are completely subservient to, and controlled by, the written
provisions of the Constitution of India in regard to the composition and the
D
regulation of the membership thereof and cannot claim the privilege of
providing for or regulating their own constitution. This can be demonstrated
by even a cursory look at the various provisions of the Constitution which
we may presently do.
E I 75. India is an indestructible Union of destructible units. Article 3 and
Article 4 of the Constitution together empower Parliament to make laws to
form a new State by separation of the territory from any State or by uniting
two or more States or parts of States .or by uniting any territory to a part
of any State, and in so doing to increase or diminish the area of any State
F and to alter its boundaries and further to give effect through measures to
provide for the representation in the Legislatures of State or States affected
by such law by varying the composition, the numerical strength thereof or
even affecting the very existence of a State Legislature.
I 76. Article 79 provides for the Constitution of Parliament i.e. the
G Union Legislature which consists of the President and two Houses known
respectively as the Council of States and the House of the People. Article
8 I deals with the composition of the House of the People and inter alia
provides for the maximum numerical strength (not more than five hundred
and thirty members from the States and not more than twenty members to
H represent the Union Territories), the manner of election (direct) and the
t
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 429
...
_; 1 nature of constituencies in the States (territorial), allotment thereof to the
different States on the basis of ratio between the number of seats and the
population of the State, with Article 82 taking care of the readjustment of
A
allocation of seats and the division of each State into territorial constituencies
after each census. Article 83 provides for the duration of each House of
Parliament, making the council of States a permanent body with one-third of
the members thereof retiring on the expiration of every second year, thereby
B
giving to each of them tenure of six years. It declares the term of the House
of the People to be five years, unless sooner dissolved, extendable for a
period not exceeding one year at a time in the event of proclamation of
emergency.
c
177. Article 84 prescribes the qualifications for membership of Parliament,
spelling out two main qualifications, leaving the discretion to prescribe the
others by law to the Parliament. The qualifications necessary as per the
constitutional provisions include the citizenship oflndia and a minimum age.
D
178. Article 102 prescribes certain disqualifications which operate as
disqualifications at the time of Election or may become supervening
qualifications subsequent to the election. As per the mandate in this
constitutional provision a person is disqualified for being chosen as or for
being a member of Parliament ifhe holds an office of profit (other than such
offices as are declared by Parliament to be exempt from such consequences); E
if he is of unsound mind and so declared by a competent court; if he is an
undischarged insolvent; if he is not a citizen of India or has voluntarily
acquired citizenship of a foreign state or is under any acknowledgement of
- ...,
.
allegiance or adherence to a foreign state and if he is so disqualified by or
under any law made by parliament. The question of disqualification is
decided on the basis of opinion of the Election Commission by the President,
in terms of the power vested in him by Article 103. Article 102(2) also refers
F
to disqualification as a result of enforcement of the provisions of the Tenth
Schedule on account of defection.
179. Article 101 makes provision on the subject of vacation of seats G
in the Houses of Parliament. A person cannot be a member of both Houses
at the same time and if chosen as a member of both Houses he is required
to vacate his seat in one or the other House. Similarly a person cannot be
a member both of the Parliament and of a House of the Legislature of a State.
If so elected to both the said bodies, he is required to resign one seat and H
430 SUPREME COURT REPORTS [2007] l S.C.R.
+
A in case of default at the expiration of period specified in the Rules made by
the President, the seat in Parliament is rendered vacant. Article l 0 l (4)
empowers the House to declare the seat of a member vacant if such member
remains absent from all meetings of the House for a period of sixty days
without permission of the House. Article 101(3) declares that on a member
being found disqualified under Article l 02, his seat in the Parliament
B becomes vacant. In addition to these various modes of vacation of seats,
resignation of the seat by writing under the hand of the member results in
the seat becoming vacant upon acceptance of the resignation.
180. Article 99 requires every Member of Parliament to make and
c subscribe the oath or affirmation prescribed in the Third Schedule, before
taking the seat. Articlel04 prescribes a penalty for sitting and voting in the
Parliament before making oath or affirmation or when not qualified or in the
event of being rendered disqualified.
181. Article 330 and Article 331 make special provision for reservation
D
of seats in the House of the People for the Scheduled Castes & Scheduled
Tribes and the Anglo Indian community.
182. Article 85 vests in the President the power to summon each House
of Parlia:inent for periodical sessions, the period between two sittings
E whereo( Cf!PJ!gt exceed six months. The said Article also vests in the
President the authority to prorogue either House or dissolve the House of
the People.
183. The above mentioned are some of the provisions of the Constitution
F that collectively show that the privilege of regulating own composition is
not available to the Parliament. r ,.._
184. Part XV of the Constitution of India makes detailed provisions on
the subject of Elections to the Parliament and State Legislatures. Article 326
makes adult suffrage as the norm for these elections. The mandate of Article
G 324 is that it is the Election Commission that (!Ontrols the superintendence,
direction and control of elections. There is no power in any legislature to
fill its own vacancies or to issue writs for the holding of by-elections etc.
185. Articles 168 and 169 provide for the constitution of the State
H Legislatures, with Parliament being vested with power to substantially alter
+ RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 431
..>- ) the very composition of the State Legislatures by providing procedure A
following which bicameral Legislature of a State may be altered to a
unicameral one, or vice versa. A11icle 170 and Article 171 deal with the
composition of the Legislative Assemblies and the Legislative Councils
respectively in the States. The maximum and the minimum number of
members are prescribed by law and the ratio between the population of each
constituency within the State with the number of seats allotted to it being
B
also regulated by constitutional provisions, even the matter of re-adjustment
of the territorial constituencies being controlled by such authority
(Delimitation Commission) and in such manner as Parliament is to determine
by law. The normal tenure of five years for a State Legislative Assembly is
prescribed by Article 172. The duration of the State Assembly and the mode C
and manner of its dissolution are matters controlled by constitutional
prescriptions. Articles 173 and 191 prescribe the qualifications and
disqualifications for the membership of the State Legislature; Article 174
creates a constitutional obligation on the State Legislatures to meet at least
once within a space of six months, the power to summon the State legislature D
having been given not to the House(s) but to the Governor.
186. Articles 327 and 328 empower the Parliament and the State
Legislatures, in that order, to make laws in connection with the preparation
of the electoral rolls, the delimitation of constituencies and all other matters
necessary for securing the due constitution of the State Legislatures. Article E
333 to 334 provide for the reservation of seats for the Scheduled Castes and
other communities in the State Legislatures again dealing with the subject
of composition and the character of the membership thereof.
187. Article 329 does bar the jurisdiction of courts but only in matters F
of delimitation of constituencies or allotment of seats thereto and reserves
the jurisdiction to deal with election disputes in favour of the authority
prescribed by law, which incidentally is High Court as per the Representation
of People Act, 1951.
1$8. It must, therefore, be held as beyond the pale of all doubts that G
neither Parliament nor State Legislatures in India can assert power to provide
for or regulate their own constitution in the manner claimed by the House
of Commons in United Kingdom. Having regard to the elaborate provision
made elsewhere in the Constitution, this power cannot be claimed even, or
least of all, through the channel of Articles 105 (3) or 2~4 (3). H
432 SUPREME COURT REPORTS [2007] 1 S.C.R.
t
A 189. The question that immediately arises is as to whether the power
of expulsion is referable exclusively, or solely, to the power of the House
of Commons to determine its own composition including the fitness of
elected members to remain members.
190. The Union of India has argued that there is no authority for the
B proposition that the House of Commons derived its power to expel a member
only from its privilege to provide for its own Constitution or composition.
It is the stand taken by the learned Counsel that at the highest it may be
stated that the expulsion of a member by the House of Commons can also
be a manifestation of its power to control its own composition in addition
C to the privilege to control its own proceedings including disciplining a
member in a fit case b)_' his expulsion.
191. On the other hand, seeking support from commentaries on
Constitutional law of England, the petitioners point out that the subject of
expulsion is dealt with by all authorities as inextricably linked with the
D
determination of the legal qualifications or disqualifications for the membership
of the House of Commons, that is the peculiar right to judge upon the fitness
or unfitness of anyone of its members to continue as a legislator. This
power, they submit, is essentially derived from the privilege to provide for
its own constitution and from no other source.
E
192. The petitioners submit that a holistic reading of the works of
English and Commonwealth authors reveals that all of them treat expulsion
solely as an expression of the 'Privilege of Regulating Due Composition of
the House', and not as part of privilege of regulating own proceedings or
F as an independent penal power for punishing contempt. In fact, they submit,
the right of the House of Commons to regulate its own proceedings was
nothing more than a right of exclusive cognizance of matters concerning the
House to the exclusion of the Courts' jurisdiction. It was merely a jurisdictional
bar, and had nothing to do with the source of power that could be
legitimately exercised in Parliament. The argument is that if the power to
G expel does not reside in the House of Commons independent of the power
to constitute itself, it would naturally not be available to the Indian
Legislatures.
193. Mr. Andhyarujina and Mr. Subramanian, however, submitted that
H the privilege of the House of Commons "to provide for its own proper
--- -f RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 433
~ constitution" has a meaning with regard to its privileges in the matter of A
l
elections to it, as explained by May in three ways as noticed by this Court
in UP Assembly Case as mentioned above and which include "detennining
the qualifications of its members in cases of doubt". Referring to May's 20th
ed. Chapter 2 on elections p. 34 and Chapter 3 on Qualifications p. 520, it
is argued that this privilege is essentially related to electoral matters
including disqualifications to be elected. The "qualifications" referred to are
B
the qualifications of a member elected but whom the House considers as not
..,., qualified to stand for elections and sit in Parliament e.g. insolvents, minor,
lunatics, aliens, those charged with treason, peers etc. The House has a right
to detennine the qualifications "in case of doubt" which clearly shows that
this statement does not mean unfitness to be a member by conduct. c
194. The debate on the subject took the learned counsel to the
interpretation and exposition of law of Parliament as is found in the maxim
lex et Consuetudo Parliamenti as the very existence of a parliamentary
privilege is a substantive issue of parliamentary law and not a question of
D
mere procedure and practice.
)'
195. The petitioners seek to draw strength from the observations of
,...
this Court in UP Assembly Case referring to the privilege of the House of
Commons in regard to its own constitution "expressed in three ways" that
cannot be claimed by the Indian Legislature. In this context, however, E
questions have been raised as to whether the privilege in regard to its own
constitution is expressed by the Commons only in the three ways mentioned
above or the three ways enumerated are merely illustrative of the various
other ways in which the House of Commons might have expressed, claimed
- '
or enjoyed the said privilege. Reference has been made to a distinct fourth
way of expression mentioned by Anson (in "Law and Custom of the
Constitution") with counter argument that the said fourth way is a mere
extension of the three ways and is really a part thereof and not independent
F
of the same.
196. Anson in 'The Law and Custom of the Constitution' [Fifth edition G
(1922), Volume I, Chapter IV] deals with the privileges of the House of
Commons, dividing them broadly into two classes; namely (i) privileges
which are specifically asserted and demanded of the Crown at the
'"1
commencement of every Parliament and (ii) the undoubted privileges of the
House of Commons regarding which no fonnal demand or request is made H
434 SUPREME COURT REPORTS [2007] 1 S.C.R -t
A by the Speaker to the Crown and which nevertheless are regularly asserted
and enforced by the House. The instances of the first category include the
privileges of free speech, of access to the Crown and of having the most
favourable construction put upon all their proceedings. The instances of the
second category include the fundamental privilege claimed by the House of
Commons to provide for and regulate its own Constitution.
B
197. At page 154,,Anson makes the following observations:-
·:.·
,;..-
"But there are other privileges not specifically mentioned on this
occasion though regularly asserted and enforced by the House.
c These are the right to provide for the due constitution of its own
body, the right to regulate its own proceedings, and the right to
enforce its privilege. by fine or imprisonment or in the case of its
own Members by expulsion."
198. While dealing with the privilege of the House of Commons to
D
provide for and regulate its own Constitution, Anson sub-divides the mode
and manner of its exercise into four parts, the first three of which correspond
"(
to what is expounded by May (20th Edition). He deals in great detail (5th
ed., p. 182) with expulsion on account of unfitness to serve as the fourth
sub-heading under the main heading of 'Right to provide for its proper
E Constitution' stating as under:-
"Unfitness to serve, a cause of expulsion, Case may arise in which
a member of the House, without having incurred any disqualification
recognised by law, has so conducted himself as to be an unfit
member of a legislative assembly. For instance, misdemeanour is
F
not a disqualification by law though it may be a disqualification in (''
fact, and the House of Commons is then compelled to rid itself of
such a member by the process of expulsion. But expulsion, although
it vacates the seat of the expelled member, does not create a
disqualification; and if the constituency does not agree with the
G House as to the unfitness of the member expelled, they can re-elect
him. If the House and the constituency differ irreconcilably as to
the fitness of the person expelled, expulsion and re-election might
alternate throughout the continuance of a Parliament."
t
H (Emphasis supplied)
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 435
'l
199. Under the same sub-heading Anson also deals in detail with the A
cases of expulsion of John Wilkes (1769) and Walpole (1712). The case of
Wilkes is cited to bring out the fact that expulsion did not have the effect
of creating a disqualification. In spite of repeated expulsions by the House
of Commons, which even proceeded to declare his election void thereby
seeking to arbitrarily create a new disability depending on its own opinion
of his unfitness to be a member of this body, Wilkes was elected to serve
B
in the new Parliament and "took his seat without question".
200. From the passage extracted above, the petitioner wants to infer
that when expulsion is resorted to by the House of Commons to rid itself
of a member who may be fully qualified but is found to be unfit to continue c
as a member of the House, it is so done in exercise of the privilege of the
Commons to constitute itself. The petitioner has stressed that such action
can only be taken on a member having been convicted for misdemeanor.
201. But then, one cannot lose sight of the words "for instance" that
D
)'
precede the particular illustration of exercise of power of expulsion by the
House of Commons in Anson. Clearly, what Anson seeks to convey is only
that it is within the power_ of the House of Commons to get rid of such
member as is considered to be unfit to continue to be its member on any
ground other than of conviction for misdemeanor.
E
202. It is the argument of the Petitioners that Anson treats expulsion
exclusively as a facet of the privilege of the House of determining its own
composition, and under no other head. Anson explains (5th ed., p. 188) the
nature and character of this power, under the heading 'Power of inflicting
punishment for breach of Privilege' in the following words:-
F
"But expulsion is a matter which concerns the House itself and its
composition, and amounts to no more than an expression of
opinion that the person expelled, is unfit to be a member of the
House of Commons. The imposition of a fine would be an idle
process unless backed by the power of commitment. It is, then the G
right of commitment which becomes, in the words of 'Sir E. May,
'the keystone of Parliamentary privilege'. It remains to consider
1
how it is exercised and by what right."
203. What Anson seems to indicate here is that expulsion is a sanction H
436 SUPREME COURT REPORTS [2007] 1 S.C.R.
A that goes beyond mere imposition of fine backed by the power of commitment
in case of default and also that expulsion undoubtedly affects the composition
of the House. He does not state that expulsion only concerns the composition
of the House. He is talking of possible sanctions for gross misdemeanour
against members and not the qualifications requisite to become a member.
Further, Anson mentions the details of the privilege of the right to constitute
B itself (5th ed., p. 177). He states, under a separate heading "Right to provide
for its proper Constitution", as follows:-
"One of these privileges is the right to provide for the proper
constitution of the body of which it consists by issue of writs when
c vacancies occur during the existence of a parliament, by enforcing
disqualification for sitting in parliament, and until 1868 by
determining disputed elections."
204. Noticeably, in this context, Anson would not mention expulsion
as one of the facets of the power of the House of Commons to constitute
D itself.
205. At the same time, one cannot lose sight of the fact that the power
of inflicting punishment for breach of privilege has been separately dealt
with even by Anson (5th ed., p. 177 onwards). The punishments which are
E awarded to members or non-members are dealt with by Anson under
separate headings such as "admonition", "reprimand", "commitment", "fine",
and "expulsion". The discussion under the last mentioned item in Anson
starts with the following passage (5th ed., p. 187): -
F "In the case of its own members the House has a stronger mode
of expressing its displeasure. It can by resolution expel a member."
206. The resolution of expulsion as an expression of displeasure takes
it beyond the realm of power of self constitution. These paragraphs
unmistakably show that expulsion is not considered by Anson as exclusively
G arising from the privilege of the House to provide for its own Constitution.
207. Hals bury in his "Laws of England" deals with the subject of the I.
"Privileges peculiar to the House of Commons". The Petitioners argue that
the power of expulsion is dealt with directly as a facet of the privilege of
H determining due composition of the House by Halsbury as well. This
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 437
l conclusion, they submit, is fortified by the fact that Halsbury deals with A
'Penal Jurisdiction of the House' distinctly in paragraphs 909-913. While
express reference is made to reprimand, admonition, committal etc, expulsion
is conspicuous by its absence. Arguing that the privilege of the House of
Commons to provide for its own Constitution is "in addition" to possessing
complete control over its proceedings including punishing its own members,
reliance is placed, on the other hand, by Mr. Andhyarujina, learned counsel
B
for Union of India on the following observations in Halsbury's Law of
England (Fourth Edition, Vol. 34, Para 1019):-
"1019. Privilege of the House of Commons in relation to its
constitution. In addition to possessing a complete control over the
regulation of its own proceedings and the conduct of its members,
c
the House of Commons claims the exclusive right of providing, as
it may deem fit, for its own proper constitution."
208. The petitioners, in reply, submit that no such significance can be
attached to the words "In addition". They argue that the paragraph, when D
viewed in the context of the other paragraphs under Chapter 2 namely
'Privileges etc claimed', it becomes clear that the opening words 'In addition
to' make no addition to the Respondent's case. Paragraph 1007 deals with
the right of the House of Commons to regulate its own proceedings as
'Exclusive cognizance of proceedings'. Bradlaugh also relied upon by the
Union of India as part of this argument is cited in this part. The scope of
E
this privilege is explained in the words, "This claim ir. volves the exclusion
of review by any court or other external body of the application of the
procedure and practice of either House to the business before it".
209. The petitioners submit that the right of the House to regulate its F
own proceedings, of which expulsion is being claimed an incident, is nothing
more than a jurisdictional bar, and not a positive source of any power. It is
in this context that Para 1019' opens with the words, "in addition to
possessing complete control over the regulation cf its proceedings and the
conduct of its members". It refers only to the exclusive jurisdiction exercised
by the House of Commons to the exclusion of the Courts. These words, G
according to the petitioners, in no manner locate a new source of expulsion
power in the privilege of regulating its internal affairs. It is the argument of
.., the petitioners that Expulsion is explicitly dealt with in paragraph I026, which
describes expulsion as being a facet exclusively of the privilege of detennining
due composition of the House. H
438 SUPREME COURT REPORTS [2007] 1 S.C.R.
A 210. Para 1019 ofHalsbury's Law of England quoted above corresponds
to Para 905 in its third edition of Volume 28 (Part 7, Section 2), also under ' I
the heading "Privileges peculiar to the House of Commons". As is seen in
that edition, after making particular reference to the claim of the House of
Commons-~~Jhl!;,t1X:G~"1sive-right of providing as it deems fit "for its own
proper constitutio.~_'. 11 J-lalsbury would mention the "Power of expulsion" in
B the succeeding Para, as is noticeable in the following extract:-
"906. Power of expulsion. Although the House of Commons has
delegated its right to be the judge in controverted elections, it
retains its right to decide upon the qualifications of any of its
c members to sit and vote in Parliament.
I
)-
If in the opinion of the House, therefore, a member has conducted
himself in a manner which renders him unfit to serve as a member
of Parliament, he may be expelled from the House, but, unless the )
'·
/
cause of his expulsion by the House constitutes in itself a ~
D
disqualification to sit and vote in the House of Commons; it is open
1
to his Constituency to re-elect him.
The expulsion of a member from the House of Commons is effected
by means of a resolution, submitted to the House by means of a
E motion upon which the question is proposed from the chair in the
usual way."
211. The petitioners seek to argue that Halsbury, in a later part in its
third edition of Volume 28 (Part 7, section 3), dealing with the "Penal
Jurisdiction of the two Houses" in matters of "Breaches of Privileges and
F
Contempts", made express mention of the sanctions that included reprimand,
admonition and the power to commit to imprisonment for contempt but
omitted reference to power of expulsion. The subpjssion made. is that this
omission renders do_u!!!fµL the plea that expulsion from the House of
Commons is also within !!!.Penaljurisdiction and is imposed as a measure
G of punishment for contempt.
212. But then, it is pertinent to mention here that Para 906 of the third
edition has been omitted in the fourth edition. The subject of "Privilege of
the House of Commons in relation to its constitution" is followed by
H narration in separate Para (1020) on the subject of"Power to fill vacant seat
t RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 439
while-the House of Commons is sitting" and then by another Para (1021) on A
.... ..,
the subject of "Power to fill vacant seat during prorogation or adjournment"
....... which appeared in earlier edition as Para numbers 907 & 908 respectively .
213. The subject of the power of expulsion claimed by the House of
Commons stands shifte~ in the Fourth edition to a later sub-part (3) under
"' the heading "Jurisdiction of Parliament" mainly dealing with the Penal B
jurisdiction, and after narrating the position generally on the subject of
.;: "Proceedings against offenders" and then referring to the "Power to commit",
~· "Period of imprisonment" and two other sanctions namely "Reprimand and
admonition", deals specifically with the subject of power of expulsion of the
House of Commons in Para 1026, which reads as under:- c
"1026. House of Commons' Power of expulsion. Although the
House of Commons has delegated its right to be the judge in
controverted elections (see para 1019 note 2 ante), it retains its right
to decide upon the qualifications of any of its members to sit and
vote in Parliament.
D
..., Ifin the opinion of the House a member has conducted himself
... in a manner which renders him unfit to serv,e.::as,~ .1.nember of
Parliament, he may be expelled, but, unless the cause of his
expulsion by the House constitutes in itself a disqualification to sit E
and vote in the House, he remains capable of re-election."
214. Noticeably, the contents of Para 1026 of the Fourth Edition are
virtually the same as were reflected in Para 906 of the Third Edition, the last
sub-Para of the latter (relating to the means adopted for effecting expulsion)
F
being one major omission. What is significant, however, is the shifting of
-..
the entire subject from close proximity to the privilege of the House of
Commons in relation to its Constitution, (as was the position in earlier
edition) to the mention of power of expulsion now amongst the various
sanctions claimed by the said legislature as part of its penal jurisdiction.
The footnotes of Para 1026 borrow from the elaboration made through G
footnotes relatable to erstwhile Para 906 and clarify that the jurisdiction
formerly exercised by the House of Commons in controverted elections has
been transferred since 1868 to the Courts of law and further that, as
,, mentioned in May's Parliamentary Practice, members have been expelled
' from the House of Commons upon various grounds, such as being rebels, H
440 SUPREME COURT REPORTS [2007] I S.C.R.
A or having been guilty of forgery, perjury, frauds and breaches of trusts,
misappropriation of public money, corruption in the administration of justice
or in public offices or in the execution of their duties as members of the
House, or of contempts and other offences against the House itself.
215. Undoubtedly, the words "In addition" with which Para 1019 opens
B do relate to the House of Commons possessing "a complete control over the
regulation of its own proceedings" but that is not the end of the matter. The
words are significant also in the context of the second limb of the opening
clause of the said Para, that is to say the words "and the conduct of its
members". We are therefore, unable to accept the contention of the
C petitioners that Halsbury narrates the power of expulsion as a power
originating from the power of the House of Commons to regulate its own
proceedings only. Rather, the new arrangement in the Fourth edition shows
that Halsbury treats the power of expulsion more as a power arising out of
the penal jurisdiction than from the power of self composition.
D
216. The "Constitutional History of England" by Professor F.W.
Maitland (first edition 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 (1887-8)'', he deals with the House
of Commons in Part III. It has been opined by him that the earlier exercise
E of privileges from the 14th to the 18th century may have fallen into utter
desuetude and indeed 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 n:ode of election and dealing with the power of determining
p 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
r
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:-
G "The House has an undoubted power of expelling a member, and
the law does not attempt to define the cases in which it may be
used. If the House voted the expulsion of A.B. on the ground that
he was ugly, no court could give A.B. any relief. The House's own
discretion is the only limit to this power. Probably it would not be ' '
H exercised now-a-days, unless the member was charged with crime
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 441
or with some very gross miss-behaviour falling short of crime, and A
in general the House would wait until he had been tried and
convicted by a court of law. In 1856 a member who had been
indicted for fraud and who had fled from the accusation was
expelled."
217. Though Maitland also discusses expulsion along with the other B
constituent elements of the House's Privilege of determining its own
composition, we are unable to accept the argument of the Petitioners that
this exposition by Professor Maitland shows that the power of expulsion
was claimed by the House of Commons it being only a part and parcel of
its basic privilege to control its own composition. During the course of C
lectures, which is the format used here, Maitland referred to expulsion
alongside the privilege of the House of Commons to control its own
composition. But his narration reflects it was the penal jurisdiction which
was being highlighted in the context of sanction of expulsion of members
for misconduct. D
218. Reference has also been made to the "Constitutional Law" (Seventh
edition) by Professors Wade and Phillips. On the subject of the privileges
of the House of Commons (Chapter I 0), while elaborating the undoubted
privilege to control its own proceedings and to provide for its own proper
Constitution, reference is made to the power of the House to determine the E
disputed elections also indicating it to be inclusive of the power of
expulsion. The authors write as under:-
"Expulsion:- The House of Commons still retains the right to
pronounce upon legal qualifications for membership, and to declare F
a seat vacant on such ground. The House may, however, as in the
case of Mitchel [( 187 5), l.R. 9C.L. 217] refer such a question to the
Courts. The House of Commons cannot, of course, create
disqualifications unrecognised by law, but it may expel any member
who conducts himself in a manner unfit for membership. A
constituency may re-elect a member so expelled, and there might,
G
as in the case of John Wilkes, take place a series of expulsions and
re-elections. Expulsion is the only method open to the House of
dealing with a member convicted of a misdemeanour."
219. It has been argued by the petitioners that Professors Wade and H
442 SUPREME COURT REPORTS [2007] 1 S.C.R.
A Phillips plainly treat expulsion as inextricably linked with privilege of
determining own composition or as an inevitable consequence, where the
House takes the view that a member has conducted himself in such a manner
as to be unworthy of membership of the legislature, an act not explainable
as expulsion by way of a measure of punishment for the offence of
B contempt.
220. We are unable to agree. Wade & Phillips have treated the subject
of expulsion from different angles, not necessarily leading to the conclusion
that this power would always be traceable to the power of self composition
alone. Expulsion on account of conviction for misdeamonour refers to
C disciplinary control and therefore part of penal jurisdiction which undoubtedly
is distinct from the power of the House to provide for its own constitution.
221. Professors Keir and Lawson in their work "Cases in Constitutional
Law" (fifth edition), while dealing with cases of Parliamentary privileges
(page 263) mention first the exclusive jurisdiction over all questions which
D
rise within the walls of the House except perhaps in cases of felony, referring
in this \;Ontext to case of Bradlaugh, and then to the personal privileges
(freedom of debate, immunity from civil arrest, etc.) which attach to the 'I'
members of Parliament, and lastly the punitive power for contempt indicated
in the following words at page 268:-
E
"(iii) The power of executing decisions in matters of privilege by
committing members of Parliament, or any other individuals, to
imprisonment for contempt of the House. This is exemplified in the
case of the Sheriff of Middlesex."
F
222. The petitioners seek to point out that expulsion of a member is not
included in the penal powers of the House of Commons. To our mind,
default in this regard by the author .does not lead to the conclusion that
expulsion was not one of the sanctions available against a member to the
House as part of its disciplinary control in as much as other authorities on
G the subject demonstrate it to be so.
223. "Constitutional Law" by E.W. Ridges (Eighth edition, p.65), as part
of the discourse on the rights exercisable by the House of Commons as
flowing from its basic privilege of providing for its due composition sets out
H the classification as under:-
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 443
•
~ . ''The Right to provide for its Due Composition. A
This comprises:
(a) The right of the Speaker to secure the issue of a new writ on
a vacancy occurring during the existence of a Parliament either by
operation of some disqualification or on the decision of a member B
elected in more than one place which seat he will accept. If in
session, the writ is issued in accordance with the order of the
House. If not in session, the procedure is regulated by certain
statutes.;
(b) The right to determine questions as to the legal qualifications
c
of its own members, as in Smith 0 Brien's case (1849), 0' Donovan
Rossa's case (1870), Mitchel's case (1875), Michael Davitt's case
(1882) andAA Lynch's Case (1903), these persons being disqualified
as undergoing sentence in consequence of conviction for felony or
treason. D
In Mitchel's Case the House declared the seat vacant, but on
his being elected a second time they allowed the courts to detennine
the question, and it was held that the votes given to Mitchel were
thrown away and his opponent at the election duly elected in
consequence. In Michael Davitt's case the House resolved that
E
the election was void, and a new writ was accordingly issued.
( c) The right to expel a member although subject to no legal
disqualification. So, in 1621, Sir R. Floyd was expelled merely
because he was a holder of the monopoly of engrossing wills. Thus F
a member guilty of misdemeanour does not forfeit his seat, but may
be expelled, thus vacating his seat. Or the House may itself decide
that a member's acts merit expulsion, as in the case of Sir R.
Steele's pamphlet, The Crisis, in 1714, and of Wilkes' North Briton
(No. 45) in 1763. In Wilkes' Case (1769), Wilkes having been
expelled and re-elected, the House passed a resolution declaring his
G
election void, and the member next on the poll duly returned. In
.. 1782 the House declared this resolution void, as being subversive
of the rights of the electors, and the proceedings in connection
with the election were expunged from the journals. The proper
H
444 SUPREME COURT REPORTS [2007] 1 S.C.R.
A course in such a case would therefore be for the House to expel
the member a second time, if so disposed. In Upper Canada Mr.
......
Mackenzie was thus four House times expelled in the Parliament
from 1832. In October, 1947, the House expelled Mr. Garry Allighan,
the member for Gravesend, after a committee of privileges had
declared him to be guilty of gross contempt of the House in
B publishing scandalous charges against other members, such charges
being, to his knowledge, unfounded and untrue. At the same time
the House also reprimanded Mr. Evenlyn Walkden, the member for
Doncaster, on whose conduct a committee of privileges had reported
adversely. The House declared him guilty of dishonourable conduct
c in having disclosed to a newspaper infonnation that had come to ~-
him at a private and confidential party meeting. and
(d) Fonnerly the House claimed from the reign of Elizabeth
and exercised the right to determine questions of disputed
election, ......... "
D
224. It is clear from the above extract that E.W. Ridges, though referring
to the power of expulsion under the heading "The Right to Provide for its
Due Composition", does not restrict it as a power sourced from the right to
provide for its own composition but refers at length to cases where the
E power of expulsion was used by the House of Commons in cases of criminal
conduct, gross misdemeanour and even in matters of contempt. We are
therefore unable to subscribe to the inference that the power of expulsion
according to Ridges is traceable only to the privilege of self composition.
225. Indeed, as pointed out by the Editor Sir Barnett Cocks (also a
F fonner Clerk of the House of Commons) in the preface to the 18th Edition
(l 971) of May in Parliamentary Practice, this work would deal with the
subject under various headings including 'Elections', 'Disqualification for
Membership of Either House' etc. leading to overlapping. Be that as it may,
while discussing the subject of disql!alification for the membership of the
G House of Commons in Chapter III, it has been mentioned that a person
convicted of a misdemeanour is not thereby disqualified for election or for
sitting and voting, but when a member is so convicted, the House might
decide to expel him, but such expulsion does not in itself create a disability
or prevent a constituency from re-electing the expelled member. After having
referred to this aspect of the expulsion, the editor would make a cross-
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.J 445
reference for further discussion on the subject at page 130 included in A
Chapter IX of the work which pertains to the penal jurisdiction of the House
of Parliament and their powers to inflict punishment for contempt.
226. It has been argued by the learned Counsel for Union of India that
the exposition of law by May shows that the power of expulsion was not
sourced only from the power of the House of Commons to provide for its
B
own composition but also out of its penal jurisdiction dealing with breaches
of privileges and contempt. He would refer in this context to observations
at page 127 that in cases of contempt committed in the House of Commons
by its members, the penalties of suspension from the House and expulsion
were also available and in some cases they had been inflicted cumulatively. c
227. The exposition by May in Chapter 8 titled "Other privileges
claimed for the Commons" (20th Edn.) under the heading "Privilege of the
House of Commons with respect to its own constitution", according to the
petitioners, treated expulsion as an example of the power of the House of D
Commons to regulate its own constitution, relatable to the matters of
7
disqualification for membership. Though he would deal with the subject of
expulsion at length with other punitive powers of the House, in as much as
the results are equally grave and adverse to a sitting member, the petitioners
argue that, May would categorically explain that expulsion is neither
disciplinary nor punitive but purely a remedial measure intended to rid the E
house of persons who in its opinion are unfit for its membership.
228. The petitioners refer to the testimony given by Sir Barnett Cocks
during inquiry before a Committee of the House of Commons. He had been
specially called by the Committee Of Privileges of the House of Commons
F
in the case of Rt. Hon. Quintin Hogg, Lord President of the Council and
Secretary of State for Education and Science and examined about the
essence and the real nature of this parliamentary Privilege. The Report dated
16th June 1964 of the Committee indicates that when questioned by the
Attorney General as to the nature of power exercised by the House of
Commons treating the behaviour of As gill as either a contempt of the House G
or a breach of privilege he agreed that the House of Commons having
c l complete control over its own membership was merely exercising its said
power. He referred to Erskine May wherein it is illustrated as one of the
privileges of the House to control its own membership and to expel members
who are unworthy of membership, to control its own composition. H
446 SUPREME COURT REPORTS [2007] 1 S.C.R.
A 229. When the Chairman Mr. Salwyn Llyod, referred to case of Garry
Allignan's and asked for clarity as to whether. there could be a situation of
expulsion simply for disreputable conduct having nothing to do with
privilege or contempt but because the House regarded one of its members
as unfit to sit in it, Sir Barnett Cocks opined, "I think a Member can be
expelled for conduct which need not be related to one of three or four
B existing Privileges'', this in answer to query from Sir Harold Wilson wherein
he had mentioned other Privileges, one being the power to determine its own
membership.
230. The Petitioners have submitted that the above mentioned opinion
c rendered by Sir Barnett Cocks in House of Commons also demonstrates that
he would also regard the power of expulsion essentially as another facet of
the basic parliamentary privilege of the House of Commons to provide for
its own constitution and determine its membership, which had been used by
that legislature to expel members for undefined and unspecified reasons
completely and wholly unrelated to any breach of its privilege or its
D
contempt and thus not as a punitive measure of express punishment for i
contempt of the House.
231. May, in 20th Edition dealt with the "Penal Jurisdiction of the
Houses of Parliament" in separate chapter (Chapter 9), and after dealing with
E the power to inflict punishment for contempt and referring to various
sanctions including that of commitment, fine, reprimand & admonition,
talked about the power of"Expulsion by the Commons" at page 139, where
he would state thus:-
"The purpose of expulsion is not so much disciplinary as remedial, r .
F
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."
G
232. In the 23rd Edition of May's Parliamentary practice, the discourse
on the subject of "Privilege of the House of Commons with respect to its
own constitution" has been shifted to Chapter 5 titled "The privilege of
Parliament" and appears at page 90 onwards. As noticed earlier, the paragraph
H appearing in the 20th Edition wherein it was mentioned that the privilege to
.. Y-
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.) 447
'/
provide for its proper constitution was expressed in three ways by the A
House of Commons has been omitted. It is significant that the power of
expulsion is mentioned even in the 23rd Edition, elaborately in Chapter 9 that
deals with "Penal Jurisdiction of both Houses", alongside the other such
powers of punishment including committal, fines, reprimand and admonition.
The observation that the purpose of expulsion is "not so much disciplinary
as remedial, not so much to punish Members as to rid the House of persons
B
-, who are unfit for membership" is also missing.
233. We are unable to accept the contentions of the petitioners that
the source of Power of Expulsion in England was the privilege of the House
of Commons to regulate its own constitution or that the source of the power c
is single and indivisible and cannot be traced to some other source like
independent or inherent penal power.
234. The right to enforce its privileges either by imposition of fine or
by commitment to prison (both of which punishments can be awarded
D
..., against the members of the House as well as outsiders) or by expulsion
(possible in case of members only) is not a part of any other privilege but
is by itself a separate and independent power or privilege. To enforce a
privilege against a member by expelling him for breach of such privilege is
not a way of expressing the power of the House of Commons to constitute
itself. E
235. Though expulsion can be, and may have been, resorted to by the
House of Commons with a view to preserve or change its constitution, it
-"
-~
would not exclude or impinge upon its independent privilege to punish a
member for breach of privilege or for contempt by expelling him from the
House. Expulsion concerns the House itself as the punishment of expulsion
F
cannot be inflicted on a person who is not a member of the House. As a
- necessary and direct consequence, the composition of the House may be
affected by the expulsion of a member. That would not, however, necessarily
mean that the power of expulsion is exercised only with a view, or for the
purpose of regulating the composition of the House. One of the three ways G
of exercising the privilege of the Commons to constitute itself as mentioned
1 by May (in 20th Edition) can undoubtedly, in certain circumstances, be
expressed by expelling a member of the House. But this does not mean that
the existence and exercise of the privilege of expelling a member by way of
punishment for misconduct or contempt of the House stands ruled out. The H
I
448 SUPREME COURT REPORTS [2007) 1 S.C.R.
A power of self composition of the House of Commons is materially distinct
and meant for purposes other than those for which the House has the
competence to resort to expulsion of its members for acts of high
misdemeanour. The existence of the former power on which expulsion can
be ordered by the House of Commons cannot by itself exclude or abrogate
the independent power of the House to punish a member by expelling him,
B
a punishment which cannot be inflicted on a non-member.
236. Expulsion being regarded as "justly as an example of the privilege
of the House of Commons to regulate its own Constitution" by May does
not mean that the power to expel is solely derived from the privilege to
c regulate its own Constitution or that without the privilege of providing for
its own Constitution, the House could not expel a member. The latter view
would be contrary to the established position that the House has a right as
part of its privilege to have complete control over its proceedings including
the right to punish a member by expulsion who by his conduct interferes
D with the proper conduct of Parliament business.
Power to punish fQr Contempt
237. The next question that we need to decide is whether the Indian
parliament has the power of expulsion in relation to the power to punish for
E
contempt. It is the contention of ~he petitioners that the Parliament cannot
claim the larger punitive power. to punish for contempt.
238. It has been argued on behalf of the Petitioners that the power to
punish for contempt is a judicial power enjoyed by the House of Commons
F r"
in its capacity as a High Court and, therefore, the same power would not
be available to the legislatures in India. According to the Petitioners, this
G
position has already been laid down in the case of UP Assembly. In addition,
they wouk! also place reliance on various decisions from other jurisdictions
which make a distinction between punitive contempt powers - essentially
judicial in nature and powers for self-protection - incidental to every
-
legislative body. According to the Petitioners, the full, punitive power of
the House of Commons is not available; rather the legislatures in India can
exercise only limited remedial power to punish for contempt.
,
239. On the other hand, the Respondents have argued that the power
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 449
to punish for contempt is available to the Parliament in India as they are A
necessary powers. It was submitted that the power to punish for contempt
is a power akin to a judicial power and it is available to the Parliament
without it being the High Court of Record. Further, it was submitted that the
Parliament has all such powers as are meant for defensive or protective
purposes.
B
240. Thus, the questions that need to be addressed are as to whether
the legislatures in India have the power to punish for contempt and, if so,
whether there are any limitations on such power.
241. The powers, privileges and immunities of Parliament under Clause C
3 of Article 105 are other than those covered by earlier two clauses. Since
powers thus far have not been defined by Parliament by law, they are such
as vested in the House of Commons at the commencement of the
Constitution.
241-A. The first question, therefore, is whether this source itself D
1 incorporates any restrictions. Article I 05(3) in this respect seems plain and
unambiguous. Upon a reading of the clause, it seems clear that the article
itself envisages no restrictions regarding the powers that can be imported
from the House of Commons. It only states that the powers of the Indian
parliament are those of the House of Commons in the United Kingdom E
without making any distinction regarding the nature of the power or its
source. Hence the argument on behalf of the respondents that it would be
al.ien to the Constitution to read qualifying words into this article that are
not present in the first place and not intended to be included.
F
242. The respondents have referred to the evolution of the jurisprudence
on the subject in other jurisdictions, in particular where there have been
legislated provisions in respect of colonial legislatures, in which context it
- has been held that such legislative bodies enjoy all the powers of the House
of Commons, including those the said House had enjoyed in its capacity as
a Court of Record. G
243. Through an enactment establishing a Colonial Constitution, the
parliament of the Colony of Victoria was empowered to define the privileges
and powers it should possess, which were declared not lO exceed those
possessed at the date of the enactment by the British House of Commons. H
450 SUPREME COURT REPORTS [2007] 1 S.C.R.
A The case of Dill v. Murphy. [1864] 15 ER 784 revolved around the powers
of the Legislative Assembly of Victoria. Such powers were held to include
the power to punish for contempt and in the light of the enactment the
distinction between the powers of the House of Commons as a legislative
body and those as a High Court was not applied to weed out the 'judicial
powers', this position being upheld in an appeal to the Privy Council.
B Williams J. held:-
"On a closer investigation of all the authorities and considering the
comprehensive nature of the 35th section, no restriction as the
House of Commons as a deliberative Assembly, but of the House
c of Commons generally, I am led to the conclusion ............ that the
powers and privileges of Commons House of Parliament whether
obtained by the lex et consuetudo Parliamenti or not, whether as
a deliberative Assembly or as a component part of the Highest
Court in the realm are claimable by the Legislative Assembly in
this Colony. "
D (Emphasis supplied)
T
244. Section 20 of the law establishing the Nova Scotia House of
Assembly provided it with all the powers of the House of Commons and
Section 30 provided that it shall have the same powers of a Court of Record.
The case of Fielding v. Thomas, p896 AC 600] involved issues concerning
E
the powers of the said legislature conferred upon it through statutory
provisions. In this case, holding that the House of Assembly's action was
legal based only on section 20, it was held:-
"Ifit was within the powers of the Nova Scotia Legislature to enact
the provisions contained in s. 20, and the privileges of the Nova ..-·
F
Scotia Legislature are the same as those of the House of Commons
of the United Kingdom as they existed at the date of passing of the
British North America Act, 1867, there can be no doubt that the
House of Assembly had complete power to adjudicate that the
respondent had been guilty of a breach of privilege and contempt
-
G and to punish that breach by imprisonment. The contempt
complained of was a willful disobedience to a lawful order of the
House to attend."
(Emphasis supplied)
'
H 245. The principle that has been followed in the cases mentioned above
't RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 451
is that where the legislature has the power to make an enactment and it A
) chooses to have the powers of the House of Commons, all the powers of
the House of Commons, regardless of which capacity they were enjoyed in,
transfer unto the legislature. This is to say that once there is an express
grant of such powers, there is no justification for excluding certain powers.
246. Rooting for the case that the extent of powers incorporated in the
B
Constitution is of wide amplitude, reliance has been placed on the following
observations of this Court in the case of Pandit Sharma (!):-
"It is said that the conditions that prevailed in the dark days of
British history, which Jed to the Houses of Parliament to claim their c
powers, privileges and immunities, do not now prevail either in the
United Kingdom or in our country and that there is, therefore, no
reason why we should adopt them in these democratic days. Our
Constitution clearly provides that until Parliament or the State
Legislature, as the case may be, makes a law defining the powers,
privileges and immunities of the House, its members and
D
Committees, they shall have all the powers, privileges and
immunities of the House of Commons as at the date of the
commencement of our Constitution and yet to deny them those
powers, privileges and immunities, after finding that the House of
Commons had them at the relevant time, will be not to interpret E
the Constitution but to re-make it. Nor do we share the view that
it will not be right to entrust our Houses with these powers,
privileges and immunities, for we are well persuaded that our
Houses, like the House of Commons, will appreciate the benefit of
publicity and will not exercise the powers, privileges and F
immunities except in gross cases. "
(Emphasis supplied)
247. Reading this judgment and constitutional provisions, it does
appear that the Constitution contains in A1ticle 105(3) an express grant that
is subject to no limitations on the powers of the Parliament. The petitioners, G
however, contend that the argument of availability of all the powers and
privileges has already been authoritatively rejected in UP Assembly Case by
this Court and reliance is placed on the following observations:-
"Mr. Seervai's argument is that the latter part of Art. 194(3) H
452 SUPREME COURT REPORTS [2007] I S.C.R.
A expressly provides that all the powers which vested in the House
of Commons at the relevant time, vest in the House. This broad
claim, however, cannot be accepted in its entirety, because there
are some powers which cannot obviously be claimed by the
House ..... Therefore, it would not be correct to say that all powers
and privileges which were possessed by the House of Commons at
B
the relevant time can be claimed by the House."
(Emphasis supplied)
248. It does not follow from rejecting the broad claims and holding that
c there are some powers of House of Commons which cannot be claimed by
Indian legislatures, that the power of expulsion falls in that category. A little
later we will show the circumstances which led to UP Assembly case and its
ratio on the point in issue.
D 249. On the specific issue of the power to punish for contempt, learned
Counsel have relied on various observations made in the aforementioned
case in support of the proposition that the legislatures in India are not a
Court of Record. It has been submitted that, relying on the logic of case
of UP Assembly, any privilege that is found to be part of the 'lex et
consuetudo par/iamenti' would be unavailable to the Indian legislatures,
E
because the Indian legislatures cannot claim to be Courts of Record. In line
with the same reasoning, it has been argued that all that the Indian
Legislatures can claim is a limited power to punish for contempt.
250. Reliance has been placed on several English cases, namely Keilley
F v. Carson, [1842 4 Moo. PC 63], Fenton v. Hampton, [1858 11 MOO PCC
347], Doyle v. Falconer, [1865-67) LR 1PC328], and Bartonv. Taylor, [1886
11 App Cases 197]. These cases refer to the distinction between the
punitive powers of contempt and the self-protection powers. Significantly,
while the first two cases related to conduct of outsiders, the latte; two cases
G related to the conduct of sitting members. These four cases hold that the
other legislatures, that is to say bodies other than the House of Commons,
can only claim the protective powers of the House. This distinction has been
explained in Doyle as follows:-
"It is necessary to distinguish between a power to punish for a
H
I·-
1 RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.J 453
...
contempt, which is a judicial power, and a power to remove any A
)' obstruction offered to the deliberations or proper action of a
~ Legislative body during its sitting, which last power is necessary
for self-preservation."
251. It has been submitted on behalf of the petitioners that Parliament
B
can only claim the protective, limited power to punish for contempt, that also
if committed ex facie. It has been argued that this limited self-protective
""" power can never include power of expulsion, as expulsion is not necessary
for the protection of the House. A distinction between expulsion and
exclusion is sought to be brought out to argue that the measure of exclusion
would be sufficient for the protection of the dignity of the House. c
,-
252. On the other hand, for the respondent it was submitted that the
Pri·JY Council cases referred to above are irrelevant in as much as they laid
down the powers of subordinate or colonial legislatures, whereas Parliament
in India is the supreme legislative body and the limitations that bind such D
subordinate bodies as the fonner category cannot bind the latter.
1 253. The petitioners, in answer to the above argument, have referred
.)
to the decision of US Supreme Court in the case of Marshall v. Gordon, [243
U.S. 521, 541 1917]. The case related to the contempt powers of the US
Congress. The Congress had charged a District Attorney for contempt. The
E
question before the Court was as to whether Congress had the power to do
so without a trial and other legal requirements. The Court held that the US
Congress did not have the 'punitive' power of contempt. At page 887, the
US Supreme Court observed:-
F
- "There can be no doubt that the ruling in the case just stated
upheld the existence of the implied power to punish for contempt
as distinct from legislative authority and yet flowing from it. It thus
becomes apparent that from a doctrinal point of view the English
rule concerning legislative bodies generally came to be in exact G
accord with that which was recognized in Anderson v. Dunn, supra,
as belonging to Congress, that is, that in virtue of the grant of
legislative authority there would be a power implied to deal with
,. contempt in so far as that authority was necessary to preserve and
'.:j
carry out the legislative authority given."
H
_,__
454 SUPREME COURT REPORTS [2007] I S.C.R. ~
A
'(
....
"Without undertaking to inclusively mention the subjects embraced ~~
in the implied power, we think from the very nature of that power
it is clear that it does not embrace punishment for contempt as
punishment, since it rests only upon the right of self-preservation,
B that is, the right to prevent acts which in and of themselves
inherently obstruct or prevent the discharge of legislative duty or ~
the refusal to do that which there is an inherent legislative power '
to compel in order that legislative functions may be performed." ~
c 254. Placing reliance on the above case, it was also argued by the
petitioners that unless India tends to be "terribly arrogant", one cannot -t
place the Indian Parliament on a higher footing than the Congress of the
United States. In our view, there is no place here for arguments of
sentiments. It is not the comparative superiority of the Indian parliament
D with respect to either the Colonial Legislatures or the US Congress that
determines the extent of its powers. We would rather be guided by our
constitutional provisions and relevant case law.
t
I;
255. The respondents have referred to the case of Yeshwant Rao v. MP
Legislative Assembly, AIR (1967) MP 95, decided by the Madhya Pradesh
E High Court. This case involved the expulsion of two members of the State
Legislative Assembly for obstructing the business of the House and defying
the Chair. This expulsion was challenged in the High Court. It was argued
that the House had no power to expel as the power to expel in England was
part of the power to regulate its own constitution, which was not available
F to the House in India. It was also argued by the Petitioners in that case that
the resolut:ons expelling them were passed without giving them an opportunity ./ "
to explain the allegations. The High Court dismissed the petition holding
that it had the limited jurisdiction to examine the existence of the power to
·-
expel and found that the House did in fact have this power.
G
255-A. Noticeably, in this case, the High Court did not look into the
power to punish for contempt. It held the Legislative Assembly's power to
expel its member to be an inherent power for "its protection, self-security
and self-preservation and for the orderly conduct of its business." The High
Court was of the view that:- t "
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 455
"The House of Commons exercises the power of expelling a member A
not because it has the power to regulate its own constitution but
because it finds it necessary for its proper functioning, protection
and self-preservation to expel a member who has offered obstruction
to the deliberations of the House during its sitting by his disorderly
conduct or who has conducted himself in a manner rendering him
unfit to serve as a member of the Parliament."
B
256. The case of Hardwari Lal v. Election Commission of India Etc.,
[ILR (1977) P&H 269] decided by a full bench of Punjab & Haryana High
Court also related to expulsion of a sitting member from the legislative
assembly of the State of Haryana. The majority decision in that case held c
that the Legislative Assembly does not have the power to expel. The ratio
in that case was identical to the arguments of the petitioners before us in
the present case. The minority view in the case was, however, that the
Legislative Assembly did have the power to expel as well as the power to
punish for contempt. This view has been commended by the respondents
to us as the correct formulation of law. With respect to the power to punish D
for contempt, the minority view has distinguished the case of UP Assembly
on the ground that it dealt only with non-members and held that the fact
that the power to punish for contempt was sourced from the judicial
functions of the House of Commons is wholly irrelevant. The minority view
says: E
"Indeed the source from which the House of Parliament derives a
power to punish for its contempt may not be in dispute at all, but
it must be remembered that "House of Parliament" and "House of
Commons' are not synonyms. As already stated the House of
F
Parliament consists of the House of Commons, the House of Lords
and the King Emperor (or the Queen as the case may be). Be that
as it may, if we were to go to the source from which the Commons
derive. any particular power or privilege and then to decide
whether that particular source is or is not available to the Indian
Legislatures in respect of that privilege, it would be adopting a G
course which is wholly foreign to the language of Article 194(3).
Such an enquiry would be relevant only if we were to read into
Article 194(3) after the words "at the commencement of this
Constitution", the words "other than those which are exercised by
the Commons as a descendant of the High Court of Parliament". H
"'
A
456 SUPREME COURT REPORTS (2007] I S.C.R.
There is no justification at all for reading into Article 194(3) what ,-
'r
...
,__
'\-
the Constituent Assembly did not choose to put therein. Adopting \,.
r
such a course would, in my opinion, not be interpreting clause (3)
of Article I 94, but re-writing it."
(Emphasis supplied)
B
257. The case of K. Anbashagan v. Tamil Nadu Legislative Assembly,
AIR (1988) Mad 275 had similar dispute concerning powers of the State +
legislative assembly in Tamil Nadu. The view taken by the Madras High
Court is similar to the one in Yeshwant Rao decided by the Madhya Pradesh ...
c High Court and the minority view in the Hardwari Lal decided by Punjab
& Haryana High Court. It was held by Madras High Court that the power
of expulsion is available as a method of disciplining members. However, at j_
no point did the Court examine the power to punish for contempt. The Court
F
upheld the power of expulsion independently of the contempt jurisdiction .
.D 258. The petitioners referred to the case of UP Assembly, particularly
the passages quoted hereinafter:-
"'" 4-
"In considering the nature of these privileges generally, and r
'
particularly the nature of the privilege claimed by the House to
E punish for contempt, it is necessary to remember the historical
origin of this doctrine of privileges. In this connection, May has
emphasised that the origin of the modem Parliament consisted in
its judicial functions."
F ~
"In this connection, it is essential to bear in mind the fact that the ......
j
status of a superior Court of Record which was accorded to the i
v-
House of Commons, is based on historical facts to which we have
~
already referred. It is a fact of English history that the Parliament l
..
G was discharging judicial functions in its early career. It is a fact of
both historical and constitutional history in England that the House L
,,
of Lords still continues to be the highest Court of law in the
country. It is a fact of constitutional history even today that both
~<
the Houses possess powers of impeachment and attainder. It is
obvious, we think, that these historical facts cannot be introduced
H ~
'I
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 457
... ) in India by any legal fiction. Appropriate legislative provisions do A
occasionally introduce legal fiction, but there is a limit to the power
of law to introduce such fictions. Law can introduce fictions as to
legal rights and obligations and as to the retrospective operation
of provisions made in that behalf; but legal fiction can hardly
introduce historical facts from one country to another."
B
.......................................
"The House, and indeed all the Legislative Assemblies in India
never discharged any judicial function and constitutional
background does not support the claim that they can be regarded
as Courts of Record in any sense. If that be so, the very basis on
c
which the English Courts agreed to treat a general warrant issued
by the House of Commons on the footing that it was a warrant
issued by a superior Court of Record, is absent in the present case,
and so, it would be unreasonable to contend that the relevant
power to claim a conclusive character for the general warrant which D
the House of Commons, by agreement, is deemed to possess, is
,,}
vested in the House. On this view of the matter, the claim made by
the House must be rejected."
\
(Emphasis supplied)
I E
'
259. It has been argued that in the face of above-quoted view of t~is
Court, it cannot be allowed to be argued that that all the powers of the
House of Commons that were enjoyed in its peculiar judicial capacity can
be enjoyed by the legislatures in India. In our considered view, such broad
proposition was neither the intended interpretation, nor does the judgment F
support such a claim.
260. In above context, it is necessary to recognize the special
circumstances in which case of UP Assembly arose. It involved the
resolutions of the Legislative Assembly in Uttar Pradesh finding that not
G
only had Keshav Singh committed contempt of the House, but even the two
Judges of the High Court, by admitting Keshav Singh's writ petition, and
indeed his Advocate, by petitioning the High Court, were guilty of contempt
-~ of the legislature. The resolution further ordered the Judges of the High
Court to be brought before the House in custody. In response to this
H
~
458 SUPREME COURT REPORTS [2007] 1 S.C.R.
....
A resolution, petitions were filed by the Judges under Article 226. In the wake "'::;.
of these unsavoury developments involving two organs of the State, the
President of India decided to make a reference to the Supreme Court under
Article 143(1) formulating certain questions on which he desired advice.
261. Significantly, the scope of the case· was extremely narrow and
B limited to the questions placed before the Court. The Court noticed the
narrow limits of the matter in following words:-
"During the course of the debate, several propos1t1ons were
canvassed before us and very large area of constitutional law was
c covered. We ought, therefore.' to make it clear at the outset that in
formulating our answers to the questions framed by the President
in the present Reference, we propose to deal with only such points
as, in our opinion, have a direct and material bearing on the
problems posed by the said questions. It is hardly necessary to
emphasise that in dealing with constitutional matters, the Court
D
should be slow to deal with question which do not strictly arise.
This precaution is all the more necessary in dealing with a reference ) ....
made to this Court under Art. 143(1)~"
(Emphasis supplied)
E
262. The question of the power to punish for contempt was never even
seriously contested before the court. Rather, while discussing the various
contentions raised before it, the Court noted:-
"It is not seriously disputed by Mr. Setalvad that the Hous.z has
F the power to inquire whether its contempt has been committed by
.,
anyone even outside its four-walls and has the power to impose
punishment for such contempt; but his argument is that having
regard to the material provisions of our Constitution, it would not
be open to the House to make a claim that its general warrant .,.
G should be treated as conclusive."
(Emphasis supplied)
263. Thus, in the case of UP Assembly the Court was mainly concerned -::i.I
with the power claimed by legislature to issue general warrant and conclusive
·,
\
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 459
character thereof. There was no challenge in that case to the power to A
punish for contempt, much less the power to expel, these issues even
otherwise being not inherent in the strict frame of reference made to the
Court.
264. Indeed, the thrust of the decision was on the examination of the
power to issue unspeaking warrants immune from the review of the Courts, B
and not on the power to deal with contempt itself. A close reading of the
case demonstrates that the Court treated the power to punish for contempt
as a privilege of the House. Speaking of the legislatures in India, it was
stated:-
c
"there is no doubt that the House has the power to punish for
contempt committed outside its chamber, and from that point of
view it may claim one of the rights possessed by a Court of
Record"
(Emphasis supplied) D
265. Speaking of the Judges' power to punish for contempt, the Court
observed:-
"We ought never to forget that the power to punish for contempt E
large as it is, must always be exercised cautiously, wisely and with
circumspection. Frequent or indiscriminate use of this power in
anger of irritation would not help to sustain the dainty or status of
the court, but may sometimes affect it adversely. Wise Judges
never forget that the best way to sustain the dignity and status of
their office is to deserve respect from the public at large by the F
quality of their judgments, the fearlessness, fairness and objectivity
of their approach, and by the restraint, dignity and decorum which
they observe in their judicial conduct. We venture to think that
what is true of the Judicature is equally true of the Legislatures. "
G
(Emphasis supplied)
266. It is evident, therefore, that in the opinion of the Court in case of
UP Assembly, legislatures in India do enjoy the power to punish for
contempt. It is equally clear that the while the fact that the House of
H
460 SUPREME COURT REPORTS [2007] I S.C.R.
'
A Commons enjoyed the power to issue unspeaking warrants in its capacity )._ "'==
of a Court of Record was one concern, what actually worried the Court was
not the source of the power per se, but the 'judicial' nature of power to issue
unspeaking warrant insofar as it was directly in conflict with the scheme of
the Constitution whereby citizens were guaranteed fundamental rights and
the power to enforce the fundamental right is vested in the Courts. It was
B not the power to punish for contempt about which the Court had
reservations. Rather, the above-quoted passage shows that such power had
been accepted by the Court. The issue 'decided concerned the non- +
reviewability of the warrant issued by the legislature, in the light of various
constitutional provisions.
c
267. Last, but not the least, there are many differences between the
case of UP Assembly and the one at hand. The entire controversy in the
former case revolved around the privileges of the House in relation to the
fundamental rights of a citizen, an outsider to the House. The decision
expressly states that the Court was not dealing with internal proceedings,
D nor laying down law in relation to members of the House. In the words of
the Court:-
\i:-
The obvious answer to this contention is that we are not dealing
with any matter relating to the internal management of the House
E in the present proceedings. We are dealing with the power of the
House to punish citizens for contempt alleged to have been
committed by them outside the four-walls of the House, and that
essentially raises different considerations."
xxxxxxx
F
"In conclusion, we ought to add that throughout our dis.cussion we
have consistently attempted to make it clear that the ,:nain poi1Jt
which we are discussing is the right of the House to claim that a
general warrant issued by it in respect of its contempt alleged to
have been committed by a citizen who is not a Member of the
G House outside the four-walls of the House, is conclusive, for it is
on that claim that the House has chosen to take the view that the
Judges, the Advocate, and the party have committed contempt by
reference to the conduct in the habeas cprpus petition pending
before the Lucknow Bench of the Allahab~d High CO'urt."
H (Emphasis supplied) I
~
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL CJ.] 461 ·
,/
), 268. In the light of the above, we are of the opinion that the ratio of A
case of UP Assembly, which was decided under significantly different
circumstances, cannot be interpreted to have held that all the powers of the
House of Commons enjoyed in its capacity as a Court of Record are
unavailable to the Indian parliament, including the power to punish for
contempt.
B
269. The view that we are taking is in consonance with the decisions
+ of this court in the two cases of Pandit Sharma. In Pandit Sharma(!), this
Court upheld the privilege of the legislative assembly to prevent the
publication of its proceedings and upheld an action for contempt against a
citizen. This decision was reiterated by a larger bench of this Court in Pandit C
Sharma (II), when it refused to re-examine the issues earlier answered in
Pandit Sharma (!). The cases involved contempt action by the legislature
against an c•1tsider curtailing his fundamental rights, and yet the Court
refused to strike down such action.
D
270. This view finds further strength from the case of State of
Karnataka v. Union of India, [1977] 4 SCC 608. This case involved a
challenge to the appointment of a commission of enquiry against the Chief
Minister and other Ministers of Karnataka. In this context, the Court
examined the 'powers' of the state in relation to Article 194 (3). It would be
fruitful to extract the relevant portions of the decision. They are as follows:
E
"....... But, apart from an impeachment, which has become obsolete,
or punishment for contempts of a House, which constitute only a
limited kind of offences, the Parliament does not punish the
offender. For establishing his legal liability recourse to ordinary F
courts of law is indispensable."
"It is evident, from the Chapter in which Article 194 occurs as well
as the heading and its marginal note that the "powers" meant to
be indicated here are not independent. They are powers which G
depend upon and are necessary for the conduct of the business of
each House. They cannot also be expanded into those of the
House of Commons in England for all purposes. For example, it
could not be contended that each House of a State Legislature has
the same share of legislative power as the House of Commons has,
H
462 SUPREME COURT REPORTS [2007) 1 S.C.R.
A as a constituent part of .a completely sovereign legislature. Under
our law it is the Constitution which is sovereign or supreme. The
Parliament as well as each Legislature of a State in India enjoys
only such legislative powers as the Constitution confers upon it.
Similarly, each House of Parliament or State Legislature has such
share in Legislative power as is assigned to it by the Constitution
B itself. The powers conferred on a House of a State Legislature are
distinct from the legislative powers of either Parliament or of a State
legislature for which, as already observed, there are separate
provisions in our Constitution. We need not travel beyond the
words of Article 194 itself, read with other provisions of the
c Constitution, to clearly reach such a conclusion."
"There is, if we may say so, considerable confusion still in the
minds of some people as to the scope of the undefined "powers,
privileges and immunities" of a House of a State Legislature so
much so that it has sometimes been imagined that a House of a
D
State Legislature has some judicial or quasi-judicial powers also,
quite apart from its recognised powers of punishment for its
contempts or the power of investigations it may carry out by the
appointment of its own committees."
E " ..........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
F performance of its legislative functions. But, if any question of
jurisdiction arises as to whether a matter falls here or not, it has to
be decided by the ordinary courts in appropriate proceedings. For
example, the jurisdiction to try p criminal offence, such as murder,
committed even within a House vests in ordinary criminal courts
and not in a House of Parliament or in a State Legislature. "
G
(Emphasis supplied)
271. The passage quoted above makes it further clear that the only
limitation the Court recognizes in the power of the legislatures to punish for
H contempt is that such contempt powers cannot be used to divest the
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 463
ordinary courts of their jurisdiction. This is in tune with the decision in the A
case of UP Assembly. More over, when the Court spoke of the use of
contempt power to remove obstructions to the functioning of the House, it
did not read into it any limitations on the power to punish for contempt.
Rather, the general purpose of its invocation was recognized.
272. Thus, we are unable to accept the contention that the power to
B
J.
punish for contempt is denied to the Indian legislatures as they are not
Courts of Record. However, we would like to emphasize that the power to
punish for contempt of the House of Commons is a very broad power,
encompassing a variety of other powers. The case of UP Assembly examined
only one aspect of that power - to issue unspeaking warrants - and held C
that such a power is unavailable under our constitution. What we are
presently examining in the cases at hand is another aspect of this broad
contempt power - the power to expel a sitting member. While we hold that .
the power to punish for contempt in its totality has not been struck down
by decision in UP Assembly, we do not intend to rule on the validity of the D
broad power to punish for contempt as a whole. The different elements of
this broad contempt power will have to be decided on an independent
scrutiny of validity in appropriate case. We would restrict ourselves to the
power to expel a member for contempt committed by him. Having found,
however, that there is no bar on reading the power to punish for contempt
in Article 105(3), it is possible to source the power of expulsion through the E
same provision.
273. There is no contest whatsoever to the plea that the House of
Commons did in fact enjoy the power of expulsion at the commencement of
the Constitution. A number of instances have been quoted even by the F
petitioners, including those occurring around the time of the commencement
of the Constitution. To mention some of them, notice may be taken of case
of member named Horatio Bottomley, expelled in 1922 after he was convicted
for fraudulent conversion of property; case of Gary Allighan, expelled in
1947, for gross contempt of House after publication of an article accusing
members of the House of insobriety and taking fees or bribe for information; G
and, the case of Peter Baker, expelled in 1954 from the House after being
convicted and sentenced for forgery.
274. Although the examples of expulsion in this century by the House
of Commons are few, the relevant time for our purposes is the date of the H
464 SUPREME COURT REPORTS (2007] I S.C.R.
A commencement of the Constitution. The last two cases occurring in 194 7
and 1954 clearly establish that the power to expel was in fact a privilege of
the House of Commons at the commencement of our Constitution. Thus,
from this perspective, the power of expulsion can be read within Article
105(3). We have already held that this power is not inconsistent with other
provisions of the Constitution.
B
275. We may also briefly deal with the other possible sources of the
power of expulsion.
Plea of limited remedial power of Contempt
C 276. The next scrutiny concerns the anxiety as to whether the Parliament
possesses only a limited remedial power of contempt and, if so, whether it
can source therefrom the power of expulsion.
277. There has been great debate around the cases of Keilley, Fenton,
Doyle and Barton mentioned earlier. We would, therefore, notice the
D relevant portions of the decisions rendered in the said cases.
278. The case of Keilley arose out of the imprisonment of the appellant,
who allegedly used threatening and insulting language against a member of
\
the Legislative Assembly of Newfoundland. His conduct was held to be a
breach of privilege by the Assembly and their powers came up for scrutiny
E before the Privy Council. It was found by the court that the Legislative
Assembly of Newfoundland did not have the power to punish for contempt.
The judgment was delivered by Mr. Baron Parke, who held:-
"The whole question then is reduced to this-whether by law, the
power of committing for a contempt, not in the presence of the
F Assembly, is incident to every local Legislature. The Statute Law
on this subject being silent, the Common Law is to govern it; and
what is the Common I,..aw, depends upon principle and precedent.
G Their Lordships see no reason to think, that ill .the principle of the
Common Law, any other powers are given them, than such as are
necessary to the existence of such a body, and the proper exercise
of the functions which it is intended to execute. These powers are
granted by the very act of its establishment, an act which on both
sides, it is admitted, it was competent for the Crown to perform.
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 465
1
This is the principle which governs all legal incidents. "Qunado Lex A
aliquid concedit, concedere et illud, sine quo res ipsa esse non
potest." In conformity to this principle we feel no doubt that such
as Assembly has the right of protecting itself from all impediments
to the due course of its proceeding. To the full extent of every
measure which it may be really necessary to adopt, to secure the
B
free exercise of their Legislative functions, they are justified in
acting by the principle of the Common Law. But the power of
punishing any one for past misconduct as a contempt of its
authority, and adjudicating upon the fact of such a contempt, and
the measure ofpunishment as a judicial body, irresponsible to the
party accused, whatever the real facts may be, is of a very different c
character, and by no means essentially necessary for the exercise
of its functions by a local Legislature, whether representative or
not. (234-35)
D
But the reason why the House of Commons has this power, is not
because it is a representative body with legislative functions, but
by virtue of ancient usage and prescription; the lex et consuetude
Parliamenti, which forms a part of the Common Law of the land,
and according to which the High Court of Parliament, before it~. E
division, and the Houses of Lords and Commons since, are invested
with many peculiar privileges, that of punishingfor contempt being
one. (235)
F
Nor can the power be said to be incident to the Legislative
Assembly by analogy to the English Courts of Record which
possess it. This assembly is no Court of Record, nor has it any
judicial functions whatever' and it is to be remarked, that all these
bodies which possess the power of adjudication upon, and punishing G
in a summary manner,. contempts of their authority, have judicial
functions, and exercise this as incident to those which they possess,
except only the House of Commons, whose authority, in this
respect, rests upon ancient usage." (235)
(Emphasis supplied) · H
-\
466 SUPREME COURT REPORTS [2007] I S.C.R.
A 279. The above case was followed in Fenton. This action against the
Speaker of the Legislative Assembly of Van Dieman' s Island arose from the
allegedly unlawful assault, seizure and imprisonment of the respondent. The
judgment was pronounced by Lord Chief Baron Pollock on 17th February,
1858. The case followed Keiliey, observing that in that case:-
B "they held that the power of the House of Commons in England
was part of the 'Lex et consuetudo Parliamenti'; and the existence
of that power in the Commons of Great Britain did not warrant the
+
ascribing it to every Supreme Legislative Council or Assembly in
the Colonies. We think we are bound by the decision of the case
c of Keilley v. Carson."
280. The next case was that of Doyle. This case involved the power
of the Legislative Assembly of Dominica to punish its member for his
conduct in the Assembly. This case followed Keilley and Fenton holding
that the Assembly had no power to punish for contempt. The judgment was
D
delivered by Sir James Colvile. It was observed:-
"Keilley v. Carson. ........ must here be taken to have decided
conclusively that the Legislative Assemblies in the British Colonies
have, in the absence of express grant, no power to adjudicate upon,
E or punish for, contempts committed beyond their walls. (339)
The privileges of the House of Commons, that of punishing for
contempt being one, belong to it by virtue of lex et consuetude
Parliamenti, which is a law peculiar to and inherent in two Houses
of Parliament of the United Kingdom. It cannot therefore, be
F
inferred from the possession of certain powers by the house of
Commons, by virtue of that ancient usage and prescription, that the
like powers belong to Legislative Assemblies of comparatively
G
recent creation in the dependencies of the Crown. (339)
-
Again, there is no resemblance between a Colonial House of
Assembly, being a body which has no judicial functions, and a
Court of Justice, being a Court of Record. There is, therefore, no
ground for saying that the power of punishing for contempt,
H
/
'f
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 467
because it is admitted to be inherent in the one, must be taken by A
analogy to be inherent in the other." (339)
Is the power to punish and commit for contempts committed in its
presence one necessary to the existence of such a body as the
Assembly of Dominica, and the proper exercise of the functions
which it is intended to execute? It is necessary to distinguish B
between a power to punish for a contempt, which is a judicial
power, and a power to remove any obstruction offered to the
deliberations or proper action of a Legislative body during its
sitting, which last power is necessary for self-preservation. If a
Member of a Colonial House of Assembly is guilty of disorderly c
conduct in the House whilst sitting, he may be removed, or
excluded for a time, or even expelled; but there is a great difference
between such powers and the judicial power of inflicting a penal-
sentence for the offence. The right to remove for self-security is
one thing, the right to inflict punishment another." (340)
D
281. Finally, in Barton, it involved the suspension of a member from
J
the Legislative Assembly of New South Wales. The power of suspension
for an indefinite time was held to be unavailable to the Legislative Assembly
as it was said to have trespassed into the punitive field. The judgment was
delivered by the Earl of Selborne. Referring to the cases of Keilley and E
Doyle, the Court observed:-
"It results from those authorities that no powers of that kind are
-
incident to or inherent in a Colonial Legislative Assembly (without
express grant), except 'such as are necessary to the existence of
.,. such a body, and the proper exercise of the functions which it is
F
intended to execute'.
- Powers to suspend toties quoties, sitting after sitting, in case of
repeated offences (and, if may be, till submission or apology), and
also to expel for aggravated or persistent misconduct, appear to
be sufficient to meet even the extreme case of a member whose
conduct is habitually obstructive or disorderly. To argue that
G
..r:.. expulsion is the greater power, and suspension the· less, and that
the greater must include all degrees of the less, seems to their
Lordships fallacious. The rights of constituents ought not, in a H
,.
468 SUPREME COURT REPORTS [2007] 1 S.C.R. "
A question of this kind, to be left out of sight. Those rights would "' "
>;
#
be much more seriously interfered with by an unnecessarily
prolonged suspension then by expulsion, after which a new election
would immediately be held."
(Emphasis supplied)
B
282. The Court went on to examine what is necessary and found that
an indefinite suspension could never be considered necessary.
283. The learned Counsel for the petitioners have relied on the above
distinction and submitted that the limited power does not envisage expulsion
c and can only be used for ex facie contempts.
284. We are not persuaded to subscribe to the propositions advanced
on behalf of the petitioners. Even if we were to accept this distinction as
applicable to the Indian parliament, in our opinion, the power to expel would
D be available.
285. Firstly, the case of Barton, which allows only a limited power to
punish for contempt, finds that even though the Legislative Assembly does
not have the power to indefinitely suspend, as that was punitive in nature,
the Assembly would have the power to expel, considering expulsion a non-
E punitive power. Secondly, the objection that the limited power could only
deal with ex facie contempt, is not tenable.
286. In the above context, reference may be made to the case of
Hartmtt v. Crick, [(1908) AC 470]. This case involved the suspension of
F a member of the Legislative Assembly of New South Wales until the verdict
of the jury in the pending criminal trial against the Member had been
delivered. The suspension was challenged. When the matter came up before
G
the Privy Council, the Respondents argued that:-
"The Legislative Assembly had no inherent power to pass
..
[the standing order]. Its inherent powers were limited to protective
and defensive measures necessary for the proper exercise of
its functions and the conduct of its business. They did not extend
to punitive measures in the absence of express statutory power in
that behalf, but only to protective measures .... The fact that
H a criminal charge is pending against the respondent does not
' 'f
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 469
., affect or obstruct the course of business in the Chamber or relate A
)
'_. to its orderly conduct."
287. This argument was rejected and the House of Lords allowed the
appeal. Lord Macnaghten, delivering the judgment, initially observed that:
" ........ no one would probably contend that the orderly conduct of B
the Assembly would be disturbed or affected by the mere fact that
a criminal charge is pending against a Member of the House" (475)
+-
288. But he found that certain peculiar circumstances of the case
deserved to be given weight. The Court went on to hold thus:- C
"If the House itself has taken the less favourable view of the
plaintiff's attitude [an insult and challenge to the house], and has
judged that the occasion justified temporary suspension, not by
way ofpunishment, but in self-defence, it seems impossible for the
Court to declare that the House was so wrong in its judgment, and D
the standing order and the resolution founded upon it so foreign
to the purpose contemplated by the Act, that the proceedings must
be declared invalid."(476)
(Emphasis supplied)
E
289. The above case thus establishes that 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' F
submission that House only has the power to remove obstructions during
its proceedings cannot be accepted.
290. 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 G
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
H
470 SUPREME COURT REPORTS [2007] 1 S.C.R.
A punish for contempt, the power to expel. would be well within the limits of
•
~-
such remedial contempt power.
· 291. 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
B power of contempt.
Principle of necessity
+
292. Learned Counsel for Union of India and the learned Additional
Solicitor General also submitted that the power of expulsion of a sitting
c member is an inherent right of every legislature on the ground of necessity.
The argument is that 'necessity' as a source of the power of expulsion, is
also available to a House for expulsion of one of its members, as such power
is 'necessary' for the functioning of the House. The petitioners, on the
other hand, argued that expulsion can never be considered 'necessary' or
D a 'self protective' power and, therefore, it cannot be claimed by the House.
293. In view of our interpretation of Article I 05(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
E that number of judgments were cited in support of the respective view
points.
294. Further, the Petitioners have also relied on the fact that Australia
has passed a law taking away the power of expulsion. It is true that Section
F 4 of the Parliamentary Privileges Act, 1987 removed the power to expel from
the Houses of the Commonwealth Parliament in Australia. The Act was
passed on the recommendation of the Parliament's Joint Select Committee
on Parliamentary Privilege. Enid Campbell, the eminent authority on
Australian Parliamentary privi,lege writes, "The Committee so recommended
because of the potential abuse of the power, because of the specific
G provisions in the federal Constitution on disqualification of members, 'and
on the basic consideration that it is for the electors, not members, to decide
on the composition of-Parliament'."
295. Odger's Australian Senate Practice further clarifies .the basis for
H the Joint Select Committee's recommendation :
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 471
"The 1984 report of the Joint Select Committee on Parliamentary A
Privilege recommended that the power of a House to expel its
members be abolished. The rationale of this recommendation was
that the disqualification of members is covered by the Constitution
and by the electoral legislation, and if a member is not disqualified
the question of whether the member is otherwise unfit for
membership of a House should be left to the electorate. The
B
committee was also influenced by the only instance of the expulsion
of a member of a House off the Commonwealth Parliament, that of
a member ofthe House of Representatives in 1920 for allegedly
seditious words uttered outside the House. This case had long
been regarded as an instance of improper use of the power (see, c
for example, E. Campbell, Parliamentary Privilege in Australia,
MUP, 1966, pp.104-05 (Odger's Australian Senate Practice 11th
-J Edition, 56-57).
296. The Australian Joint Committee Report itself weighs the dangers
of misuse of expulsion against any potential need for expulsion and D
definitively recommends its abolition :
"This danger [i.e. misuse by the majority] can never be eradicated
and the fact that the only case in federal history when the power
to expel was exercised is a case when, we think, the power was E
demonstrably misused is a compelling argument for its abolition ..
But the argument for abolition of the power to expel does not
depend simply on the great potential for abuse and the harm such
abuse can occasion. There are other considerations. Firstly, there
are the detailed provisions in the Constitution. In short, we already F
. have something approaching a statutory code of disqualification .
Secondly, it is the electors in a constituency or in a State who
decide on representation. In principle, we think it wrong that the
institution to'. which the person has been elected should be able to
reverse the decision of his constituents. If expelled he may stand
for re-election but, as we have said, the damage occasioned by his G
expulsion may render his prospects of re-election negligible. Thirdly,
the Houses still retain the wide powers to discipline Members.
Members guilty of a breach of privilege or other contempt may be
-t committed, or fined.... These sanctions seem drastic enough. They
may also be suspended or censured by their House." H
472 SUPREME COURT REPORTS [2007] 1 S.C.R.
A 297. The aforesaid approach adopted in Australia is entirely for the
Parliament to consider and examine, if so advised. In so far as this Court
is concerned, since India does not have a law that codifies the privileges
of the Parliament, nothing turns on the basis of the Australian legislation.
Argument of Parliamentary practice
B
298. During the course of arguments it was brought out that since the
date of commencement of the Constitution of India there have been three
occasions when the Houses of Parliament have resorted to expulsion of the
sitting Member. Out of these three occasions, two pertained to Members
C of Lok Sabha.
299. The first such case came on 8th June 1951 when the 1st Lok
Sabha resolved to expel Mr. H.G. Mudgal for having engaged himself in
conduct that was derogatory to the dignity of the House and inconsistent
with the standard which Parliament is entitled to expect from its members.
D The second occasion of expulsion came in 6th Lok Sabha, when by a
resolution adopted on 19th December 1978, it resolved to agree with the
recommendations and findings of the Committee of Privileges and on the
basis thereof ordered expulsion of Mrs. Indira Gandhi along with two others
(Mr. R.K. Dhawan and Mr. D. Sen) from the membership of the House
E having found them guilty ·of breach of privilege of the House. The third case
pertains to Rajya Sabha when expulsion of Mr. Subramanium Swamy was I
ordered on 15th November 1976. tI
300. The above-mentioned three instances of expulsion from the
Houses of Parliament have been referred to by the learned counsel for Union
F
oflndia in support of his argument that expulsion of a Member of Parliament
has not been ordered for the first time and that it is now part of Parliamentary
practice that the Houses of Parliament can expel their respective members
for conduct considered unfit and unworthy of a Member. On the other hand,
the learned counsel for the petitioners would refer to these very instances
G to quote certain observations in the course of debates in the Parliament to
buttress their plea that the Parliamentary practice in India is against resort
to the extreme penalty of expulsion from amongst the sanctions that may be
exercised in cases of breach of privileges by the House of Commons.
H 301. The facts of the case of expulsion of Mr. Subramaniam Swamy
l
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 473
. :4 from Rajya Sabha are narrated by Subhash C. Kashyap in his 'Parliamentary A
Procedure' (Vol. 2, p. 1657). It appears that Rajya Sabha adopted a motion
on 2nd September 1976 appointing a Committee to investigate the conduct
and activities of the said member, within and outside the country, including
alleged anti-India propaganda calculated to bring into disrepute Parliament
and other democratic institutions of the country and generally behaving in
a manner unworthy of a member. The Committee presented report on 12th
B
November 1976 recommending expulsion as his conduct was found to be
+ derogatory to the dignity of the House and inconsistent with the standards
which it was entitled to expect from its members. On 15th November 1976,
a motion was adopted by Rajya Sabha expelling the member.
c
302. Coming to the cases of expulsion from Lok Sabha, the facts of the
case of Mr. H.G. Mudgal have been summarized at page 262 in Practice and
Procedure of Parliament by Kaul and Shakder (5th Edn.). Mr. H.G. Mudgal
was charged with having engaged himself in "certain dealings with the
Bombay Bullion Association which include canvassing support and making
D
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. On 8 June, 1951, a
motion for appointment of a Committee to investigate the conduct and
activities of the member was adopted by Lok Sabha. The Committee, after
inquiry, held that the conduct of the member was derogatory to the dignity E
of the House and inconsistent with the standard which Parliament was
entitled to expect from its members. In pursuance of the report of the
Committee, a motion was brought before the House on 24 September, 1951,
to expel Mr. Mudgal from the House. The member, after participating in the
debate, submitted his resignation to the Deputy Speaker.
F
303. When the report of the Committee was being debated, Pt. Jawahar
Lal Nehru, the then Prime Minister of India, spoke at length on the subject.
His speech rendered in Parliament on 24th September 1951 dealt with the
facts of the case as also his views on the law on the subject. After noticing
that in the Constitution of India no particular course is laid down in regard G
to such matters inasmuch as Article 105(3) refers one back to the practice
in the British House of Commons, this is what he had to say :-
-.r
" ....... this House as a sovereign Parliament must have inherently
the right to deal with its own problems as it chooses and I cannot H
474 SUPREME COURT REPORTS [2007) 1 S.C.R.
imagine anybody doubting that fact. This particular article throws '..:~
A ),
yo°' back for guidance to the practice in the British House of
Commons. There is no doubt as to what the practice in the House
of Commons of the Parliament in the U .K. has been and is. Cases
have occurred from time to time there, when the House of Commons
has appointed a Committee and taken action
B
+
So there is no doubt that this House is entitled inherently and
also if reference be made to the terms of article 105 to take such .....
c steps according to the British practice and expel such a Member
from the House.
The question arises whether in the present case this should
be done or something else. I do submit that it is perfectly clear that
this case is not even a case which might be called a marginal case,
D
where people may have two opinions about it, where one may have
doubts if a certain course suggested is much too severe. The case,
if I may say so, is as bad as it could well be. If we consider even
such a case as a marginal case or as one where perhaps a certain
amount of laxity might be shown, I think it will be unfortunate from
E a variety of points of view, more especially because, this being the
first case of its kind coming up before the House, ifthe House does
not express its will in such matters in clear, unambiguous and
forceful terms, then doubts may very well arise in the public mind
~
as to whether the House is very definite about such matters or not.
F Therefore, I do submit that it has become a duty for us and an
}·
obligation to be clear, precise and definite. The facts are clear and
precise and the decision should also be clear and precise and
unambiguous. And I submit the decision of the House should be
after accepting the finding of this report, to resolve that the
Member should be expelled from the House. Therefore, I beg to
G move:
'That this House, naving considered the Report of the
Committee appointed on the 8th June, 1951 to investigate into ')_
the conduct of Shri H.G. Mudgal, Member of Parliament,
H accepts the finding of the Committee that the conduct of Shri ~
RAJA RAM PAL v. THE HON'BLE ~PEAKER, LOK SABHA fSABHARWAL, CJ.] 475
Mudgal is derogatory to the dignity of the House and A
1
inconsistent with the standard which Parliament is entitled to
expect from its Members, and resolves that Shri Mudgal be
expelled from the House'."
304. On 25th September 1951, the House deprecated the attempt of the
member to circumvent the effect of the motfon and unanimously adopted an B
amended motion that read as follows:-
"That this House, having considered the Report of the Committee
appointed on the 8th June, 1951, to investigate the conduct of Shri
H.G. Mudgal, Member of Parliament, accepts the findings of the
Committee that the conduct of Shri Mudgal is derogatory to the
c
4 dignity of the House and inconsistent with the standard which
Parliament is entitled to expect from its members, and resolves that
Shri Mudgal deserved expulsion from the House and further that
the terms of the resignation letter he has given to the Deputy
Speaker at the conclusion of his statement constitute a contempt D
of this House which only aggravates his offence" .
. I
~
305. The facts of the matter leading to expulsion of Mrs. Indira Gandhi
and two others are summarized at page 263 in Practice and Procedure of
Parliament by Kaul and Shakder (5th Edn.). On 18th November 1977, a
E
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.
Indira Gandhi, former Prime Minister, and others r~garding obstruction,
.... intimidation, harassment and institution of false cases by Mrs. Gandhi and
others against certain officials.
-;:.
F
306. The Committee of Privileges were of the view 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 concerned officers who were collecting information for answer
to a certain question in the House. The Committee recommended that Mrs.
G
Indira Gandhi deserved punishment for the serious breach of privilege and
contempt of the House committed by her but left it to the collective wisdom
of the House to award such punishment as it may deem fit.
-f
307. A resolution was moved to inflict the punishment of committal and
expulsion. In the course of debate on the motion, Mr. C.M. Stephen, Leader H
476 SUPREME COURT REPORTS [2007] 1 S.C.R.
A of the Opposition, inter alia, inviting attention to the full Bench decision
of Punjab & Haryana High Court in the case of Hardwari Lal [ILR (1977)
2 P&H 269] stated that the proposal to expel was "not countenanced by the
Constitution" and the House had no power to expel ari elected member. Mr.
K.S. Hegde, the Speaker, acknowledged the importance of the constitutional
arguments advanced by Mr. C.M. Stephen. On 19th December 1978, the
B House adopted a motion resolving that Mrs. Indira Gandhi be committed to
jail till the prorogation of the House and also be expelled from the membership
of the House for the serious breach of privilege and contempt of the House
committed by her.
C 308. What was done by the 6th Lok Sabha thfough the resolution
adopted on 19th December 1978 was undone by the 7th Lok Sabha. It
discussed the propriety of the earlier decision. Certain speeches rendered in
the course of the debate have been relied upon, in extenso, by the learned
counsel and may be taken note of. Mr. B.R. Bhagat spoke thus:-
D
"They have committed an error. I am not going into the morality of
it, because I am on a stronger ground. It is illegal because there is
no jurisdiction.
Coming to the third point the determination of guilt and
E adjudication they are judicial functions in many countries and,
therefore ·question of breach of p~ivilege, contempt of the House,
punishment etc. are decided in the courts of law in them. Only we
have followed the parliamentary system the Westminster .type. In
the House of Commons there the House itself deals with breach. of
F its privileges, and we have taken it from them. Therefore, here the
breach of privilege is punished by the House. But in many other
countries almost all other countries if I may say so, any breach of
privilege of the House is punished by the courts and therefore, the
point I am making is that the procedure followed in the Privilege
Committee is very important. The law of privileges, as I said is a
G form of criminal law and I was making this point that excepting the
House of Commons and here - we have taken the precedents and
conventions from the House of Comnions - in regard to all other
Parliaments this offence or the contempt of the House or the breach
of privilege of the House is punished by the courts and therefore,
H essentially the law of privileges is a form of criminal law and often
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 477
a citizen and his Fundamental Rights may clash with the concepts A
of the dignity of the House and the Legislatures, their committees
and Members. The essence of criminal law is that it is easily
ascertainable. The law of privileges on the other hand is bound to
remain vague and somewhat uncertain unless codified. And here,
it has not been codified except in Rule 222. Whereas in India
following the British practices the House itself judges the matter it
B
is important to ensure that the strictest judicial standards and
judicial procedures are followed. This is very important because my
point is that in the Privileges Committee the deliberations were
neither judicial nor impartial nor objective, and they did not follow
any established rules of procedure for even the principles of equity c
and natural justice. They were not applied in dealing with this
matter in the case of Mrs. Gandhi and the two officers and the
principal that justice should not only be done but also seem to
have been done is totally lacking in this case. Nothing that smacks
of political vendetta should be allowed to cloud a judgment as even
D
the slightest suspicion of the Committee of Privileges of the House
acting on political consideration or on the strength of the majority
')
party etc. may tend to destroy the sanctity and value of the
privileges of the Parliament.
Now, I am dealing only with the deliberations of the Committee. E
When the matter comes before House, then I will come with it
separately. In that, political vendetta governed the Members of the
Committee. If you take the previous precedents eithf'.1" here in this
Parliament, or in the House of Commons or in other Parliaments,
you will find that the decisions of the Privileges Committee were F
unanimous. They are not on party lines. But in this particular case,
not only the decisions were on party lines, but there were as many
as 6 or 7 Notes many of them were votes~issent though they
were not called as such because this is anot r matter which I want
to refer quoting: "Under the Directions of the Speaker" 'there shall
be no Minute of Dissent to the report of a parliamentary committee G
- this is a parliamentary committee - 'except the select committee'.
In a Select Committee or a Joint Select Committee Minutes of
--f
Dissent are appended. In other parliamentary committees - the
Privileges Committee is a parliamentary committee- under Direction
68(3), "There shall be no minute of dissent to the report". H
478 SUPREME COURT REPORTS [2007] 1 S.C.R
A The idea is that the deliberations in these committees should
be objective, impartial and should not be carried on party or
political lines. In this matter there are as many as six notes - they
are called 'notes' because they cannot be minutes of dissent and
four of them have completely differed, totally different with the
findings of the Committee. Seven Members were from the ruling
B party. This reflects the composition of the Committee. They have
taken one line. I will come to that point later when I deal with the
matter, how the matter was adopted in the House. How it was taken +
and how political and party considerations prevailed. That is
against the spirit and law of Parliamentary Privileges. In the
c Committee foo, Mrs. Gandhi said that the whole atmosphere is
political and partisan, the Members of the Privileges Committee, the
Members of the ruling party, the Janata Party have been totally
guided by a vindictive attitude, an attitude of vendetta or vengeance
or revenge to put her in prison or to punish her."
D
xxxx xxxx xxxx
"Rule 72 of the Rules of Procedure is only, as I said earlier,
an enabling provision inasmuch as the Committee of Privileges may
administer an oath or affirmation to a witness. It does not mean that
E every witness is bound to take an oath. In any case, it does not
apply to an accused. Every accused must be given the fullest
opportunity of self-defence. He should be allowed to be represented
before the Committee by a counsel of his or her choice to lead
evidence and to cross-examine witnesses and, further, the benefit
F of doubt must go to an accused. This is the law.
Earlier, in the Mudgal case, we have a precedent. The
Committee of the House gave an opportunity to the accused. He
was allowed the services of a counsel, to cross-examine witnesses,
to present his own witnesses and to lead his defence through his
G counsel. The Committee was also assailed by the Attorney-General
throughout the examination of the matter. This was not given to
Mrs. Indira Gandhi. This also clearly indicates the motivations in
the Privileges Committee.
H Again, the punishment for a breach of privileges in recent
~,,,
' ·~
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 479
,,.., ... times, this maximum punishment, this double punishment of A
expulsion and imprisonment, is unheard of an unprecedented. The
recent trend all over the world is that the House takes as few cases
of privilege as possible. The minimum punishment is that of either
reprimand or admonition. In this matter also, the majority decision
of the Privileges Committee showed a bias or rather a vendetta."
B
309. Mr. A.K. Sen, in his speech was more concerned about the
fairness of the procedure that had been adopted by the Committee on
Privileges before ordering expulsion of Mrs. Gandhi and others. He stated
as under :-
c
"I remember when Charles the First was arraigned before the court
which was set up by the Cromwell's Government, at the end of the
trial, he was asked whether he had anything to plead by way of
defence. The famous words he uttered were these. I do not think
I can repeat them word by word, but I would repeat the substance.
He said "To whom shall I plead my defence? I only find accusers
D
and no Judges". So this is what happened when Mrs. Gandhi
appeared before this august Committee. Excepting a few who had
the courage to record their notes of dissent, the minds of the rest
had already been made up. This is very clear from the utterances
which came from them outside the Parliament, before and after the E
elections and from the way they were trying to manipulate the
entire matter."
xxxx xxxx xxxx
- t:
F
"Sir, the Supreme Court in a series of decisions started from
Sharma 's case laid down very clearly that the privileges cannot
violate the Fundamental rights of a citizen. Therefore, if a citizen
has the right not to be a witness against a sin or not to be bullied
> into cross-examination, then that right cannot be taken away in the
name of a privilege. You can convict her or you can verdict him by G
only evidence, but not by her own hand. Our law forbids a person
to be compelled to drink a cup of poison. The Plutonic experiment
would not be tolerated under our laws. No accused can be said:
'You take the cup of poison and swallow it.' He has to be tried and
he has to be sentenced according to the law." H
480 SUPREME COURT REPORTS [2007] l S.C.R
A 310. Mr. Jagan Nath Kaushal also referred to the case of Hardwari Lal
and then said :-
"When Mrs. Gandhi's case was before the Parliament, that judgment
was in the field. But nobody just cared to look at that. The reason
is obvious, and the reason has been given by the friends who have
B spoken. The reason is, we had a pre-determined judge who was not
in a mood to listen to any voice of reason and I say it is a very
sad day when we have to deal with pre-determined judges. I can
understand a judge not knowing the law, but it is just unthinkable +
that a judge should come to the seat of justice with a pre-
c determined mind to convict the person who is standing before him
in the capacity of an unfortunate accused. It is the negation of
notions of justice. Therefore, what happened at that time was that
not only Mrs. Gandhi was punished with imprisonment, but she
was also expelled."
D 311. The resolution adopted on 19th December 1978 by the 6th Lok
Sabha was rescinded on 7th May 1981 by the 7th Lok Sabha that adopted
the following resolution:-
(a) the said proceedings of the Committee and the House shall not
~·
..
constitute a precedent in the law of parliamentary privileges;
E
(b) the findings of the Committee and the decision of the House are
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; and
F (c) Smt. Indira Gandhi, Shri R.K. Dhawan and Shri D. Sen were
innocent of the charges leveled against them.
And accordingly this House:
Rescinds the resolution adopted by the Sixth Lok Sabha on the
G 19th December, 1978."
312. It is the argument of the learned counsel f()r petitioners that the
resolution adopted on 7th May 1981 by Lok Sabha clearly shows that resort
to expulsion of a sitting elected member of the House was against
H parliamentary rules, precedents and conventions and an act of betrayal of
.... ~
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 481
'" the electorate and abuse by brute majoritarian forces. In this context, the A
" learned counsel would point out that reference was made ·repeatedly in the
course of debate by the Members of Lok Sabha, to the majority view of
Punjab & Haryana High Court in the case of Hardwari Lal. The learned
counsel would submit that Lok Sabha had itselfresolved that the proceedings
of the Privileges Committee and of the House in the case of expulsion of
Mrs. Gandhi shall not constitute a precedent in the law of parliamentary
B
4 privileges. They argue that in the teeth of such a resolution, it was not
~
permissible for the Parliament to have again resolved in December 2005 to
expel the petitioners from the membership of the two Houses.
313. In our considered view, the opinion expressed by the Members of c
Parliament in May 1981, or for that matter in December 1978, as indeed in
June 1951 merely represent their respective understanding of the law of
privileges. These views are not law on the subject by the Parliament in
exercise of its enabling power under the second part of Article 105(3). It
cannot be said, given the case of expulsion of Mudgal in 1951, that the
D
parliamentary practice in India is wholly against resort to the sanction of
expulsion for breach of privileges under Article 105 .
. .,,"-
314. On the question whether power of expulsion exists or not,
divergent views have been expressed by learned members in the Parliament.
These views deserve to be respected but on the question whether there E
exists power of expulsion is a matter of interpretation of the constitutional
provisions, in particular Article 105(3) and Article 194(3) on which the final
arbiter is this Court and not the Parliament.
Judicial Review - Manner of Exercise - Law in England
,t
F
< 315. Having held that the power of expulsion can be claimed by Indian
legislature as one of the privileges inherited from the House of Commons
- through Article 105(3), the next question that arises is whether under our
jurisprudence is it open to the Court to examine the manner of exercise of
the said power by Parliament as has been sought by the petitioners. G
316. The learned counsel for Union of India, as indeed the learned
t-.-. ·' Additional Solicitor General, were at pains to submit that the matter falls
,'-r within the exclusive cognizance of the legislature, intrusion wherein for
(
purposes of judicial review of the procedure adopted has always been H
482 SUPREME COURT REPORTS [2007] I S.C.R
A consistently avoided by the judicature in England from where the power of
expulsion has been sourced as also expressly prohibited by the constitutional
provisions.
317. The principal arguments on behalf of the Union of India and of
the learned Additional Solicitor General on the plea of ouster of the court's
-
B jurisdiction is that in essence, the position with regard to justiciability of
exercise of Parliamentary privilege is exactly the same in India as what exists
in England. As seen in Bradlaugh v. Gossett, Courts in England have
recognized the Parliamentary Privilege of exclusive cognizance over its own +
proceedings, whereby Courts will examine existence of a privilege but will
c decline to interfere with the manner of its exercise.
318. The contention of the petitioners, on the other hand, is that the
arguments opposing the judicial review ignore both the impact in the Indian
context of existence of a written Constitution, as well as the express
provisions thereof. It has been submitted that the English decisions, including
D Bradlaugh, cannot be transplanted into the Indian Constitution and are
irrelevant as the position of Parliament in the United Kingdom is entirely
different from that of the Indian Parliament which is functioning under the ..,~"
Constitution and powers of which are circumscribed by the Constitution,
which is supreme and not the Parliament.
E
319. Against the backdrop of challenge to the jurisdiction of the court
to examine the action of the legislature in the matter arising out of its
privilege and power to punish for contempt, this court in the case of UP
Assembly took note of the law laid down in a series of cases that came up
in England during the turbulent years of struggle of House of the Commons
F to assert its privileges. {Earl of Shaftesbury (86 E.R. 792), Ashby v. White -;;-
[(1703-04) 92 E.R. 129], R. v. Paty [(1704) 92 E.R. 232], Case ofMurray(95
E.R. 629), Case ofBrass Crosby (95 E.R. 1005), Case ofSir Francis Burdett
(104 E.R. 501), Cases ofStockdale (1836-37), Howardv. Sir William Gosset
(116 E.R. 139) and Bradlaugh v. Gossett, [1884] L.R. 12 Q.B.D. 271 }.
G
320. The learned counsel for Union of India quoted extensively from
the judgment in Bradlaugh, mainly the passages mentioned hereinafter.
321. Lord Colridge CJ observed at page 275 thus:-
'+"
H " ............... there is another proposition equally true, equally well
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 483
established, seems to be decisive of the case before us. What is A
said or done within the walls of Parliament cannot be inquired into
in a court of Jaw. On this point all the judges in the two great cases
which exhaust the learning on the subject, - Burdett v. Abbott (14
East, l, 148) and Stockdale v. Hansard (9 Ad. & E.l); - are agreed,
and are emphatic. The jurisdiction of the Houses over their own B
- members, their right to impose discipline within their walls, is
absolute and exclusive. To use the words of Lord Ellenborough,
"They would sink into utter contempt and inefficiency without it".
(14 East, at p.152.)"
"
322. Stephen J., at page 278, was categorical in his view that "the C
House of Commons is not subject to the control of her Majesty's courts in
its administration of that part of the statute - law which has relatio_n to its
own internal proceedings" and referred in this context to the following:-
"Blackstone says (I Com.163): "The whole of the Jaw and custom
of Parliament has its original form this one maxim, 'that whatever
D
matter arises concerning either House of Parliament ought to be
examined, discussed, and adjudged in that House to which it
relates, and not elsewhere." This principle is re-stated nearly in
Blackstone's words by each of the judges in the case of Stockdale
v. Hansard. (9 Ad. & E. l.)" E
Then, at page 279, Stephen J. copiously quoted from Stockdale as
under:-
"Lord Denman says (9 Ad. & E. at p. 114) "Whatever is done within
the walls of either assembly must pass without question in any F
other place." Littledale, J. says (At p.162) : "It is said the House
of commons is the sole judge of its own privileges; and so I admit
as far as the proceedings in the House and some other things are
concerned." Patteson, J. said (at p. 209) "Beyond all dispute, it is
necessary that the proceedings of each house of Parliament should G
be entirely free and unshackled that whatever is said or done in
either House should not be liable to examination elsewhere." And
Coldridge, J. said (at p.233) : 'That the House should have
exclusive jurisdiction to regulate the course of its own proceedings
and animadvert upon any conduct there in violation of its rules er H
484 SUPREME COURT REPORTS [2007] I S.C.R
• t --..t:
A derogation from its dignity, stands upon the clearest grounds of
necessity."
~·
...
Further, at page 285 Stephen J. observed thus:-
"I do not say that the resolution of the House is the judgment of
B a Court not subject to our revision; but it has much in common with
such a judgment. The House of Commons is not a Court of Justice;
but the effect of its privilege to regulate its own internal concerns
practically invests it with a judicial character when it has to apply
to particular cases the provisions of Acts of Parliament. We must
c presume that it discharges this function properly and with due
regard to the laws, in the making of which it has so great a share.
If its determination is not in accordance with law, this resembles the
case of an error by a judge whose decision is not subject to
appeal."
(Emphasis supplied)
D
325. On the basis of appraisal of the law in the aforementioned series •-
-
__!f
..,._,..
of cases, this court summarized the position in the law of England on the
question of jurisdiction of the court in matters arising out of contempt
jurisdiction of the legislature, in the following words at page 482:-
E
"I 08. Having examined the relevant decisions bearing on the point,
it would, we think, not be inaccurate to observe that the right
claimed by the House of Commons not to have its general warrants
examined in habeas corpus proceedings has been based more on
the consideration that the House of Commons is in the position
F j-
of a superior ,Court of Record and has the right like other superior
courts of record to issue a general warrant for commitment or
persons found guilty of contempt. Like the general warrant issued
by superior courts of record in respect of such contempt, the
general warrants issued by the House of Commons in similar
G situations should be similarly treated. It is on that ground that the
general warrants issued by the House of Commons were treated
beyond the scrutiny of the courts in habeas corpus proceedings.
In this connection, we ought to add that even while recognising '."":)._
the validity of such general warrants, Judges have frequently
H observed that if they were satisfied upon the return that such .'
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 485
general warrants were issued for frivolous or extravagant reasons, A
it would be open to them to examine their validity. "
(Emphasis supplied)
326. The case of Prebble has been mentioned earlier. The observations
of Privy Council (at page 976 and 980 of the judgment) have been extracted B
in earlier part of this judgment. They have been referred to by the learned
counsel for Union of India for present purposes as well. The principle of
law and practice that the courts will not allow any challenge to be made to
what is said or done within the walls of Parliament in performance of its
c
- legislative functions and protection ofits established privileges was reiterated
in this case on the basis of, amongst others, the cases of Burdett, Stockdale
and Bradlaugh.
327. Learned counsel for Union of India and learned Additional
Solicitor General, submit that in the case of UP Assembly, this court was
D
dealing mainly with the powers of the courts under Article 32 and 226 of the
Constitution of India to entertain petitions challenging legality of committal
for contempt of State legislature on the grounds of breach of fundamental
rights of non-members. The learned counsel drew our attention to certain
observations made, at page 481-482 of the judgment, which read as under:-
E
"Mr. Seervai's argument was that though the resolution appeared
to constitute an infringement of the Parliamentary Oaths Act, the
Court refused to give any relief to Bradlaugh, and he suggested
that a similar approach should be adopted in dealing with the
present dispute before ·us. The obvious answer to this contention
F
is that we are not dealing with any matter relating to the internal
management of the House in the present proceedings. We are
dealing with the power of the House to punish citizens for contempt
... alleged to have been committed by them outside the four walls of
the House, and that essentially raises different considerations."
G
(Emphasis supplied)
328. The submission of the learned counsel is that the view in
Bradlaugh that matters of internal management were beyond the purview of
judicial scrutiny had been followed. This, according to the learned counsel, H
486 SUPREME COURT REPORTS [2007] 1 S.C.R.
A has been the consistent view of this court, as can be seen from the cases
of Indira Nehru Gandhi v. Raj Narain [1975 Supp SCC I] and P. V.
Narasimha Rao v. State (CBI/SPE) [(1998) 4 SCC 626]. Both the judgments
referred to the law in Bradlaugh, the case of P. V. Narsimha Rao also quoted
with approval Stockdale. In the case of Indira Nehru Gandhi, the court took
note, in Para 70, of the law in Bradlaugh, in the following words:-
B
" ....... .It was held that the Court had no power to restrain the
executive officer of the House from carrying out the order of the
House. The reason is that the House. is not subject to the control
of the courts in the administration of the internal proceedings of the
c House."
'
329. Learned counsel for Union of India also sought strength from the
following observation appearing at page 468:-
" .......... On the other hand, the courts have always, at any rate in the
D last resort, refused to interfere in the application by the House of
any of its recognized privileges (May's Parliamentary Practice, pp.
173-74).........."
330. In our view, the above observation of this court in the case of UP
E Assembly, paraphrasing the position of law and practice in England on the
authority of May's Parliamentary Practice, refers to enforcement by the
legislature of privileges which had been recognized by the courts. The.
observation has no relevance on the question under consideration in these
matters since the law in England of exclusive cognizance has no applicability
F in India which is governed and bound by the Constitution of India.
Parliamentary privileges vis-a-vis Fundamental Rights
331. Before consideringjudicial review in Indian context, it is appropriate
to first examine this aspect. In the face of arguinents of illegalities in the
G procedure and the breach of fundamental rights, it has been strongly
contended on behalf of the Union of India that Parliamentary privileges
cannot be decided against the touchstone of other constitutional provisions,
in general, and fundamental rights, in particular.
H 332. In this context, again it is necessary to seek enlightenment from
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 487
the judgments in the two cases of Pandit Sharma as also the UP Assembly A
f- case where breach of fundamental rights had been alleged by the persons
facing the wrong end of the stick.
333. In the case of Pandit Sharma(!), one of the two principal points
canvassed before the Court revolved around the question as to whether the
privilege of the Legislative Assembly under Article 194 (3) prevails over the B
fundamental rights of the petitioner (non-member in that case) under Article
" ~
19(l)(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 that it was not c
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(l)(a). It was
also argued that Article 194 (1 ), like Article 105 (I), in reality operates as an
D
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 E
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, F
-t 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 & privileges of the House of Commons
conferred by the latter part of clause (3) must also be taken as subject to G
the fundamental rights.
334. 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 H
,,
488 SUPREME COURT REPORTS [2007] l S.C.R.
A to Article 105) was different. While clause (I) 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)
B (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 ""?
-r- '
Parliament in pursuance of the earlier part of Article l 05 (3) would not be
a Jaw made in exercise of constituent power but would be one made in i'
exercise of ordinary legislative powers under Article 246 read with the
c 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 4id not lead to the
conclusion that ifthe powers, privileges or immunities conferred by the latter
part of the said Article are repugnant to the fundamental rights they must
D
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 madt! 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
E 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 .......... "
J.-
F 335. On the basis of conclusions so reached, this Court reconciled the
conflict between fundamental right of speech & expression under Article ;;.
19(1)(a) on one hand and the powers and privileges of the Legislative
Assembly under Article 194(3) on the other by holding thus:-
,;
"The principle of harmonious construction must be adopted and so
G construed, the provisions of Art.19(1 )(a), which are general, must
yield to Art.194( I) and the latter part of its cl. (3) which are special"
336. Pandit Sharma had also invoked Article 21 to contend that the
proceedings before the Committee of Privileges of the Legislative Assembly
H threatened to deprive him of personal liberty otherwise than in accordance
t
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 489
)_ with the procedure established by law. This Court, however, found that the A
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 with the procedure established by law
and, therefore, a complaint of breach of fundamental rights urider Article 21
could not be made. The Court then proceeded to examine the case to test B
the contention that the procedure adopted by the Legislative Assembly was
' -+- not in accordance with the standing orders laying down the rules of
~
procedure governing the conduct of its business made in exercise of powers
under Article 208.
c
337. It is not possible to overlook developments in law post Pandit
Sharma, including UP Assembly case.
338. In the course of addressing the issues raised in the case of UP
Assembly, this court had the occasion to examine both parts of clause (3)
·• of Article 194. Article 194 (1) provides "freedom of speech" in the legislature,
D
-~' 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 committees thereof. E
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.
"t F
339. While construing the effect of the expression "subject to the
provisions of this Constitution and to the rules and standing orders
regulating the procedure of the legislature" as used in Clause ( 1) of Article
194 which has been omitted in the remaining clauses of the said Article, at
page 443 this court observed as under:-
G
"It will thus be seen that all the 4 clauses of the Article 194 are not
in terms made subject to the provisions contained in Part III. In
fact, clause (2) is couched in such wide tenns that in exercising the
rights conferred on them by cl.(l), if the legislators by their
speeches contravene any of the fundamental rights guaranteed by H
t
490 SUPREME COURT REPORTS [2007] l S.C.R.
A Part JII, they would not be liable for any action in any court.
Nevertheless, if for other valid considerations, it appears that the
contents of cl.(3) may not exclude the applicability of certain
relevant provisions of the Constitution, it would not be reasonable
to suggest that those provisions must be ignored just because the
said clause does not open with the words "subject to the other
B provisions of the Constitution." In dealing with the effect of the
provisions contained in cl. (3) of Art. 194, wherever it appears that
there is a conflict between the said provisions and the provisions + ~
pertaining to fundamental rights, an attempt will have to be made
to resolve the said conflict by the adoption of the rule of harmonious
c construction"
(Emphasis supplied)
340. Reiterating the view taken in Pandit Sharma (!), it was observed
D at page 452 as under:-
" ......... .It is true that the power to make such a law has been '+
conferred on the legislatures by the first part of Article 194(3); but
when the State Legislatures purport to exercise this power, they will
undoubtedly be acting under Article 246 read with Entry 39 of List
E IL The enactment of such a law cannot be said to be in exercise
of a constituent power, and so, such a law will have to be trt:ated
as a law within the meaning of Article 13. That is the view which
the majority decision expressed in the case of Pandit Sharma
[(1959) Supp. 1 SCR 806], and we are in respectful agreement with
F that view."
341. This was reiterated yet again at page 497 of the said judgment in
the following words:-
" ............................ that is one reason why the Constitution-makers
G thought it necessary that the legislatures should in due course
enact laws in respect of their powers, privileges and immunities,
because they knew that when such laws are made, they would be
subject to the fundamental rights and would be open to examination
by the courts in India. Pending the making of such laws, powers,
H privileges and immunities were conferred by the latter part of
t
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 491
Article 194(3). As we have already emphasised, the construction of A
this part of the article is within the jurisdiction of this Court, and
in construing this part, we have to bear in mind the other relevant
and material provisions of the Constitution."
(Emphasis supplied)
342. In the case of UP Assembly, this Court observed that the general B
issue as to the relevance and applicability of all the fundamental rights
guaranteed by Part III had not been raised in the case of Pandit Sharma
inasmuch as contravention ofonly Article 19 (l) (a) and Article 21 had been
pleaded, therefore, it had not become necessary to consider the larger issue
as to whether the latter part of Article 194 (3) was subject to the fundamental c
rights in general. It was held that in view of the majority opinion in case
o::.' Pandit Sharma (!), "it could not be said that the said view excluded the
application of all fundamental rights, for the obvious and simple reason that
Article 21 was held to be applicable and the merits ~f the petitioner's
argument about its alleged contravention in his cases were examined and
D
rejected." The following observations appearing at p.451 in the case of UP
Assembly are instructive and need to be taken note of:-
' •.
"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 E
194(3) and any of the provisions of the fundamental rights guaranteed
by Part Ill, the latter must always yield to the former. The majority
decision, therefore, must be taken to have settled that Article
19(/)(a) would not apply, and Article 21 would"
F
(Emphasis supplied)
343. The Court proceeded to examine the applicability of Article 20 to
the exercises of power and privilege under Article 194 (3) and the right of
the citizen to approach this Court for redressal under Article 32. In this
context, in Para 125 (at pages 492-93), it was held:- G
" ..........If Article 21 appl~es, Article 20 may conceivably apply, and
the question may arise, if a citizen complains that his fundamental
right had been contravened either under Article 20 or Article 2 J,
can he or can he not move this Court under Article 32? For the H
492 SUPREME COURT REPORTS [2007] I S.C.R.
A purpose of making the point which we are discussing, the
applicability of Article 21 itself would be enough. If a citizen
moves this Court and complains that his fundamental right under
Article 21 had been contravened, it would plainly be the duty of
this Court to examine the merits of the said contention, and that
inevitably raises the question as to whether the personal liberty of
B the citizen has been taken away according to the procedure
established by law. In fact, this question was actually considered
by this Court in the case of Pandit Sharma {1959] Supp. 1 SCR
+-
806. It is true that the answer was made in favour ofthe legislature:
but that is wholly immaterial for the purpose of the present
c discussion. If in a given case, the allegation made by the citizen is
that he has been deprived of his liberty not in accordance with law,
but for capricious or ma/a fide reasons, this Court will have to
examine the validity of the said contention, and it would be no
answer in such a case to say that the warrant issued against the
citizen is a general warrant and a general warrant must stop aII
D
further judicial inquiry and scrutiny. In our opinion, therefore, the
impact of the fandamental constitutional right conferred on Indian
citizens by Article 32 on the construction of the latter part of +
Article 194(3) is decisively against the view that a power or
privilege can be claimed by the House, though it may be
E inconsistent with Article 21. In this connection, it may be relevant
to recall that the rules which the House has to make for regulating
its procedure and the conduct of its business have to be subject
to the provisions of the Constitution under Article 208(1)."
(Emphasis supplied)
F
344. The hollowness of the proposition of total immunity of the action
of the legislatures in such matters is brought out vividly in the following
words:-
G "........ .It would indeed be strange thdt the Judicature should be
authorised to consider the validity of the legislative acts of our
legislatures, but should be prevented from scrutinising the validity
of the action of the legislatures trespassing on the fandamental
rights conferred on the citizens. "
(Emphasis supplied)
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL CJ.] 493
345. Referring to the above observations the learned Additional Solicitor A
General submitted that this observation may be relevant to Article 21 in the
limited context but cannot be applied to all the fundamental rights. It is the
contention of the learned counsel for Union of India and the learned
Additional Solicitor General that the case of UP Assembly was restricted to
the consideration of the exclusiveness of the right of the Legislative
Assembly to claim a general warrant issued by it in respect of its contempt
B
alleged to have been committed by a citizen who was not a member of the
House outside the four-walls of the House and to the jurisdiction of the
High Court to entertain a Habeas Corpus petition on the allegations of
breach of fundamental rights of the said citizen. The learned counsel would
point out that the majority judgment in the course of setting out its C
conclusions pre-faced its answer with the observation that "the answer is
confined to cases in relation to contempt alleged to have been committed
by a citizen who is not a member of the House outside the four-walls. of the
legislative chamber". The submission of the learned counsel is that the
Court in the said case had deliberately omitted reference to infringement of D
privileges and immunities of the Legislature other than those with which it
was concerned in the said matter and, therefore, the views taken with regard
to applicability of Article 20 or Article 21 could not be taken as law settled.
346. The learned counsel for Union of India further submitted that in
exercise of the privileges of the House to regulate its own proceedings E
including the power to expel a member, it does not engage Article 14 or
Article 19. He referred to the judgment of Canada Supreme Court in New
Brunswick Broadcasting Corporation v. Nova Scotia Speaker, [1993] 1
SCR 391, in particular, the observations (page 373) to the following effect:-
F
"It is a basic rule, not disputed in this case, that one part of the
Constitution cannot be abrogated or diminished by another part of
the Constitution: Reference re Bill 30, An Act to amend the
EducationAct(Ont.), [1987] 1SCR1148. Soiftheprivilegetoexpel
strangers from the legislative assembly is constitutional, it cannot
be abrogated by the Charter, even if the Charter otherwise applies G
to the body making the ruling. This raises the critical question: is
the privilege of the legislative assembly to exclude strangers from
its chamber a constitutional power?"
34 7. He also referred to the judgment of Canada Supreme Court in the H
494 SUPREME COURT REPORTS [2007] I S.C.R
A case of Harvey v. New Brunswick, [1996] 2 SCR 876 and referred in particular
to observations at pages 159 and 162 as under:-
"This is not to say that the courts have no role to play in the
debate which arises where individual rights are alleged to conflict
with parliamentary privilege. Under the British system of
B parliamentary supremacy, the courts arguably play no role in
monitoring the exercise of parliamentary privilege. In Canada, this ,
has been altered by the Charter's enunciation of values which may +'.
in particular cases conflict with the exercise of such privilege. To
prevent abuses cloaked in th; guise of privilege from trumping
c legitimate Charter interests, the courts must inquire into the
legitimacy of a claim of parliamentary privilege. As this Court
made clear in New Brunswick Broadcasting, the courts may properly
question whether a claimed privilege exists. This screening role
means that where it is alleged that a person has been expelled or
disqualified on invalid grounds, the courts must determine whether
the act falls within the scope of parliamentary privilege. If the Court
concludes that it does, no further review lies."
xxxx xx xx ·xxxx
E "The authorities establish that expulsion from the legislature of
members deemed unfit is a proper exercise of parliamentary privilege.
Regarding the British House of Commons, Erskine May, supra,
wrote that,"[n]o power exercise by the Commons is more undoubted
than that of expelling a member from the house, as a punishment
for grave offences" (p. 58). In Canada, J. G. Bourinot, in
F
Parliamentary Procedure and Practice in the Dominion of Canada
(2nd Ed. 1892), at pp. 193-94, affirmed the same rule."
(Emphasis supplied)
G 348. We may note that observations made by Canadian Supreme Court
in House ofCommons v. Vaid, [2005] 1 SCR 667, show that even in Canada,
the approach is on change. In Vaid, it is observed that "over the years, the
assertion of parliamentary privilege has varied in its scope and content".
Further, the court comments that much more recently the Speaker in Canada
H stated "In my view, parliamentary privilege does not go much beyond the
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 495
right of free speech in the House of Commons and the right of a member A
to discharge his duties as a member of the House of Commons" (page 682).
Be that as it may, in our considered opinion, the law laid down by the
Supreme Court of Canada has to be construed in the light of Constitutional
and statutory provisions in vogue in that jurisdiction and have no relevance
here in as much as it has already been settled in the aforementioned cases
by this Court that the manner of enforcement of privilege by the legislature
B
can result in judicial scrutiny on the touch-stone of Articles 20 or 21, though
subject to the restrictions contained in the other Constitutional provision,
for example Article 212 ( 1) in the case of legislative assembly of the State
(corre.;;ponding to Article 122 in the case of Parliament).
c
349. We are unable to accept the argument of the learned Counsel for
Union of India for the simple reason that what this Court "deliberately
omitted" to do in the case of UP Assembly was consideration of the powers,
• privileges and immunities other than the contempt jurisdiction of the
Legislature. The views expressed as to the applicability of Article 20 and
D
Article 21 in the context of manner of exercise of the powers and privileges
of the Legislative Assembly are of general import and cannot be wished
away. They would hold good not merely against a non-member as was the
case in that Reference but even against a member of the Legislature who
also is a citizen of this country and entitled to the protection of the same
fundamental rights, especially when the impugned action entails civil E
consequences.
350. In the light of law laid down in the two cases of Pandit Sharma
and in the case of UP Assembly, we hold that the broad contention on behalf
of the Union oflndia that the exercise of Parliamentary privileges cannot be
- --t
F
decided against the touchstone of fundamental rights or the constitutional
provisions is not correct. In the case of Pandit Sharma the manner of
exercise of the privilege claimed by the Bihar Legislative Assembly was
tested against the "procedure established by Jaw" and thus on the touchstone
of Article 21. It is a different matter that the requirements of Article 21, as
at the time understood in its restrictive meaning, were found satisfied. The G
point to be noted here is that Article 21 was found applicable and the
procedure of the legislature was tested on its anvil. This view was followed
in the case of UP Assembly which added the enforceability of Article 20 to
the fray.
H
496 SUPREME COURT REPORTS (2007] 1 S.C.R.
J
A 351. When the cases of Pandit Sharma and UP Assembly were -\
decided, Article 21 was construed in a limited sense, mainly on the strength
of law laid down in A.K. Gopalan v. State of Madras, [1950] SCR 88, in
which a Constitution Bench of this Court had held that operation of each
Article of the Constitution and its effect on the protection of fundamental
rights was required to be measured independently. The law underwent a
B total transformation when a Constitution Bench (11 Judges) in Rustom
Cavasjee Cooper v. Union of India, (1970] 1 SCC 248, held that all the
provisions of the Constitution are required to be read conjointly as to the
effect and operation of fundamental rights of the citizens when the State
action infringed the rights of the individual. The jurisprudence on the
c subject has been summarized by this Court in Para 27 of the judgment in
Ashok Kumar Gupta v. State of UP., (1997] 5 SCC 201, in the following
words:-
"27. In A.K. Gopalan v. State of Madras, (1950] SCR 88, per
majority, the Constitution Bench had held that the operation of
D
each article of the Constitution and its effect on the protection of
fundamental rights is required to be measured independently and
not in conjoint consideration of all the relevant provisions. The
above ratio was overruled by a Bench of 11 Judges in Rustom
Cavasjee Cooper v. Union of India, (1970] 1SCC248. This Court
E had held that all the provisions of the Constitution conjointly be
read on the effect and operation of fundamental right of the citizens
when the State action infringes the right of the individual. In D. T. C.
case (1991 Supp (1) SCC 600](SCC at pp. 750-51, paras297 and298)
it was held that:
F
"It is well-settled constitutional law that different articles in
* ..
the chapter on Fundamental Rights and the Directive Principles
in Part IV of the Constitution must be read as an integral and
incorporeal whole with possible overlapping with the subject-
. matter of what is to be protected by its various provisions
G particularly the Fundamental Rights.
.. ..... The nature and content of the protection of the
fundamental rights is measured not by the operation of the
State action upon the rights of the individual but by its
H objects. The validity of the State action must be adjudged in
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 497
the light of its operation upon the rights of the individuals
".. or groups of individuals in all their dimensions. It is not the
A
object of the authority making the law impairing the right of
the citizen nor the form of action taken that determines the
protection he can claim; it is the effect of the law and of the
action upon the right which attract the jurisdiction of the,
court to grant relief In Minerva Mills Ltd. v. Union of India, B
[ 1980] 3 sec 625 the fundamental rights and directive principles
are held to be the conscience of the Constitution and disregard
of either would upset the equibalance built up therein. In
Maneka Gandhi case [1978 1 SCC 248} it was held that
different articles in the chapter of fundamental rights of the c
Constitution must be read as an integral whole, with possible
overlapping of the subject-matter of what is sought to be
protected by its various provisions particularly by articles
relating to fundamental rights contained in Part III of the
Constitution do not represent entirely separate streams of
D
rights which do not mingle at many points. They are all parts
of an integrated scheme in the Constitution. Their waters
)
must mix to constitute that grand flow of unimpeded and
impartial justice; social, economic and political, and of equality
of status and opportunity which imply absence of unreasonable
or unfair discrimination between individuals or groups or E
classes. The fundamental rights protected by Part III of the
Constitution, out of which Articles 14, 19 and 21 are the most
frequently invoked to test the validity of executive as well as
legislative actions when these actions are subjected to judicial
scrutiny. Fundamental rights are necessary means to develop F
one's own personality and to carve out one's own life in the
manner one likes best, subject to reasonable restrictions
imposed in the paramount interest of the society and to a just,
fair and reasonable procedure. The effect of restriction or
deprivation and not of the form adopted to deprive the right
is the conclusive test." G
(Emphasis supplied)
352. The enforceability of Article 21 in relation to the manner of
-f-
exercise of Parliamentary privilege, as afTmned in the cases of Pandit
Sharma and UP Assembly has to be understood in light of the expanded H
'
--t '
498 SUPREME COURT REPORTS [2007] 1 S.C.R.
A scope of the said fundamental right interpreted a~ above. ~
f
.:
353. It is to be remembered that the plenitude of powers possessed by
the Parliament under the written Constitution is subject to legislative
competence and restrictions of fundamental rights and that in cass a
member's personal liberty was threatened by imprisonment of committal in
B execution of Parliamentary privilege, Article 21 would be attracted.
354. If it were so, we are unable to fathom any reason why the general
proposition that fundamental rights cannot be invoked in matters concerning
Parliamentary privileges should be accepted. Further, there is no reason
C why the member, or indeed a non-member, should not be entitled to the
protection of Article 21, or for that matter Article 20, in case the exercise of
Parliamentary privilege contemplates a sanction other than that of committal.
Judicial Review - Effect of Article 122
D 355. It is the contention of the learned Counsel for Union of India that
it should be left to the wisdom of the legislature to decide as to on what
occasion and in what manner the power is to be exercised especially as the
Constitution gives to it the liberty of making rules for regulating its
procedure and the conduct of its business. He would refer to Article 122 ( 1)
E to argue that the validity of proceedings in Parliament is a matter which is
expressly beyond the gaze of, or scrutiny by, the judicature. It has been the
contention on behalf of the Union of India that the principle of exclusive
cognizance of Parliament in relation to its privileges under Article 105
constitutes a bar on the jurisdiction of the Court which is of equal weight
F as other provisions of the Constitution including those contained in Part III
and, therefore, the manner of enforcement of the privilege cannot be tested -+ ..
on the touchstone of other such constitutional provisions, also in view of
the prohibition contained in Article 122.
356. The issue of jurisdiction was one of the principal concerns of this
.
G 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
H legislature was "the sole and exclusive judge" of the issue of contempt and
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 499
of the punishment that deserved to be awarded against the contemnor, as A
against the jurisdiction claimed by the High Court to entertain a writ
challenging the validity of the detention of the alleging contemnor.
357. Jn the case of Pandd Sharma (II), while dealing with the questions
raised as to the regularity of the procedure adopted by the House of the
legislature, this court inter alia observed as under at page 105:-
B
" ....... the validity of the proceedings inside the Legislature of a State
cannot be called in question on the allegation that the procedure
laid down by the Jaw had not been strictly followed. Article 212
of the Constitution is a complete answer to this part of the C
contention raised on behalf of the petitioner. No Court can go into
those 1uestions which are within the special jurisdiction of the
Legislature itself, which has the power to conduct its own
business......."
(Emphasis supplied)
D
-~
The question of extent of judicial review of Parliamentary matters has
to be resolved with reference to the provision contained in Article 122 (I)
that corresponds to Article 212 referred to in Pandit Sharma (JI). On a plain
reading, Article 122 (I) prohibits "the validity of any proceedings in E
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
F
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. G
359. Article 122 corresponds to Draft Article 101 which was considered
by the Constituent Assembly on 23rd May 1949. Though the marginal note
of the Article "Courts not to enquire into proceedings of Parliament" clearly
indicates the import of the provision contained therein, Mr. H.V. Karnath H
500 SUPREME COURT REPORTS [2007] I S.C.R.
A introduced an amendment that the words "in any court" be inserted after the
words "called in question" in Clause I. Answering to the debate that had
followed, Dr. B.R. Ambedkar intervened and clarified as under:-
"The Honourable Dr. B.R. Ambedkar : Sir, with regard to the
amendment of Mr. Karnath, I do not think it is necessary, because
B where can the proceedings of Parliament be questioned in a legal
manner except in a court? Therefore the only place where the
proceedings of Parliament can be questioned in a legal manner
end legal sanction obtained is the court. Therefore it is
unnecessary to mention the words which Mr. Karnath wants in his
c amendment.
For the reason I have explained, the only forum where the
proceedings can be questioned in a legal manner and legal relief
obtained either against the President or the Speaker or any
officer or Member, being the Court, it is unnecessary to specify the
D
forum. Mr. Karnath will see that the marginal note makes it clear."
(Emphasis supplied)
360. The above indeed was a categorical clarification that Article 122
E 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.
361. That the English cases laying down the principle of exclusive
F ~- (
cognizance of the Parliament, including the case of Bradlaugh, arise out of
a jurisdiction controlled by the constitutional principle of sovereignty of
Parliament cannot be lost sight of. In contrast, the system of governance in
India is founded on the norm of supremacy of the Constitution which is
fundamental to the existence of the Federal State. Referring to the distinction
G between a written Federal Constitution founded on the distribution oflimited
Executive, Legislative and Judicial authority among bodies which are
coordinate with and independent of each other on the one hand and the
system of governance in England controlled by a sovereign Parliament
which has the right to make or unmake any law whatever, this Court in the
H case of UP Assembly concluded thus in Paras 39 and 40:-
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 501
"39. Our legislatures have undoubtedly plenary powers, but these A
powers are controlled by the basic concepts of the written
Constitution itself and can be exercised within the legislative
fields allotted to their jurisdiction by the three Lists under the
Seventh Schedule; but beyond the Lists, the legislatures cannot
travel. They can no doubt exercise their plenary legislative authority
and discharge their legislative functions by virtue of the powers
B
conferred on them by the relevant provisions of the Constitution;
but the basis of the power is the Constitution itself. Besides, the
legislative supremacy of our legislatures including the Parliament
is normally controlled by the provisions contained in Part Ill of
the Constitution. If the legislatures step beyond the legislative c
fields assigned to them, or acting within their respective fields,
they trespass on the fundamental rights of the citizens in a manner
not justified by the relevant articles dealing with the said
fundamental rights, their legislative actions are liable to be
struck down by courts in India. Therefore, it is necessary to D
remember that though our legislatures have plenary powers, they
function within the limits prescribed by the material and relevant
provisions of the Constitution.
40. In a democratic country governed by ri written Constitution,
it is the Constitution which is supreme and sovereign. It is no E
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 F
that even when the Parliament purports to amend the Constitution,
it has to comply with the relevant mandate of the Constitution
itself. 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. G
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."
(Emphasis supplied) H
~
502 SUPREME COURT REPORTS [2007] l S.C.R.
A 362. The submissions of the learned counsel for Union oflndia and the ;
~
learned Additional Solicitor General seek us to read a finality clause in the ~
provisions of Article 122 (l) in so far as parliamentary proceedings are
concerned. On the subject of finality clauses and their effect on power of
judicial review, a number of cases have been referred that may be taken note
of at this stage.
B
363. The case of Sub-Committee on Judicial Accountability v. Union
ofIndia, [1991] 4 SCC 699, pertained to interpretation of Articles 121and124
r-
of the Constitution and of the Judges (Inquiry) Act, 1968. One of the
contentions raise~ in that case pertained to the issue as to whether the
c question if a motion had lapsed or not was a matter pertaining to the
conduct of the business of the House of Parliament of which the House was
taken as the sole and exclusive master. It was contended that no aspect of
the matter was jusiiciable before a Court since Houses of Parliament are
-
privileged to be the exclusive arbiters of the legality of their proceedings.
Strong reliance, in this context, was placed on the decision in Bradlaugh
,r
D
which, it was noted, arises out of !}. jurisdiction where exclusiveness of
Parliamentary control was covered by a Statute. In this context, the majority
~·
view was expressed in the following words by this· Court:-
"61. But where, as in this country and unlike in England, there is l=:
E a written Constitution which constitutes the fundamental and in
that sense a "higher law" and acts as a limitation upon the
legislature and other organs of the State as grantees under the
Constitution, the usual incidents of parliamentary sovereignty do
not obtain and the concept is one of 'limited government'. Judicial
F review is, indeed, an incident of and flows from this concept of the
fundamental and the higher law being the touchstone of the limits
of the powers of the various organs of the State which derive
power and authority under the Constitution and that the judicial
wing is the interpreter of the Constitution and, therefore, of the
limits of authority of the different organs of the State. It is to be
G noted that the British Parliament with the Crown is supreme and its
powers are unlimited and courts have no power of judicial review
of legislation.
63. But it is the duty of this Court to interpret the Constitution for
H the meaning of which this Court is final arbiter.
~·
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 503
'j- 65. The rule in Bradlaugh v. Gossett, [1884]12 QBD 271 : 50 LT 620 A
was held not applicable to proceedings of colonial legislature
governed by the written Constitutions Barton v. Taylor [(1886) 11
AC 197: 2 TLR 382] and Rediffusion (Hong Kong) Ltd. v. Attorney
General of Hong Kong, [1970] AC 1136: [1970] 2 WLR 1264.
66. The principles in Bradlaugh, [1884] 12 QBD 271 : 50 LT 620] is
B
that even a statutory right if it related to the sphere where
-+
Parliament and not the courts had exclusive jurisdiction would be
a matter of the Parliament's own concern. But the principle cannot
be extended where the matter is not merely one of procedure but
of substantive law concerning matters beyond the parliamentary c
procedure. Even in matters of procedure the constitutional
provisions are binding as the legislations are enforceable. Of the
interpretation of the Constitution and as to what law is the courts
have the constitutional duty to say what the law is. The question
whether the motion has lapsed is a matter to be pronounced upon
D
the basis of the provisions of the Constitution and the relevant
laws. Indeed, the learned Attorney General submitted that the
question whether as an interpretation of the constitutional processes
and laws, such a motion lapses or not is exclusively for the courts
to decide."
E
364. 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 F
""1 by Article 122 (l) 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. G
365. Article 217(3) vests in the President of India the jurisdiction to
decide the question as to the age of a Judge of a High Court, after
--'f-
consultation with the Chief Justice of India and declares that the said
decision of the President shall be final. Interpreting this finality clause H
504 SUPREME COURT REPORTS [2007] 1 S.C.R.
A relatable to the powers of the President, this Court in the case of Union of
India v. Jyoti Prakash Mitter, [1971] 1 SCC 396 observed in Para 32 as
under:-
"The President acting under Article 217(3) performs a judicial
function of grave importance under the scheme of our Constitution.
B He cannot act on the advice of his Ministers. Notwithstanding the
declared finality of the order of the President the Court has
jurisdiction in appropriate cases to set aside the order, if it appears
that it was passed on collateral considerations or the Rules of
natural justice were not observed, or that the President's judgment
c was coloured by the advice or representation made by the executive
or it was founded on no evidence."
366. Article 311 relates to the dismissal, removal etc. of persons
employed in civil capacities under the Union or a State. The second proviso
to Article 311(2) empowers the President or the Governor, as the case may
D be, to dispense with the enquiry generally required to be held, upon
satisfaction that in the interest of the security of the State it is not expedient
to hold such enquiry. Article 311(3) gives finality to such decision in the
following manner:-
E "If, in respect of any such person as aforesaid, a question arises
whether it is reasonably practicable to hold such inquiry as is
referred to in clause (2), the decision thereon of the authority
empowered to dismiss or remove such person or to reduce him in
rank shall be final."
F
367. Construing the expression "finality" in the aforesaid provision,
this Court in Union ofIndia v. Tulsiram Patel, [1985] 3 SCC 398, in Para 138,
observed as under:-
" ........ The finality given by clause (3) of Article 311 to the disciplinary
G authority's decision that it was not reasonably practicable to hold
the inquiry is not binding upon the court. The court will also
examine the charge of malafides, if any, made in the writ petition.
In examining the relevancy of the reasons, the court will consider
the situation which according to the disciplinary authority made it
H come to the conclusion that it was not reasonably practicable to
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 505
hold the inquiry. If the court finds that the reasons are irrelevant, A
then the recording of its satisfaction by the disciplinary authority
would be an abuse of power conferred upon it by clause (b) ..... "
368. Article 191 relates to disqualifications for membership of the State
Legislature. The authority to decide the questions arising as a result is
vested in the Governor whose decision, according to Article 192(1 ), "shall
B
be final".
369. Tenth Schedule was added to the Constitution by the Constitution
(52nd Amendment) Act 1985 with effect from 1st March 1985, to provide for
detailed provisions as to disqualification on the ground of defection with C
reference, inter alia, to Article 102(2) that deals with "disqualifications for
membership" of Parliament. Paragraph 6(1), amongst others, vests the
authority to take a decision on the question of disqualification on ground
of defection unto the Chairman of Rajya Sabha or the Speaker of Lok
Sabha, as the case may be. This provision declares that the decision of the D
said authority "shall be final". Interestingly, Para 6 (2) states that all the
-~ proceedings relating to decision on the question of disqualification on the
ground of defection "shall be deemed to be proceedings in Parliament within
the meaning of Article 122".
370. Paragraph 7 of Tenth Schedule contains an express bar of E
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 F
under this Schedule."
371. It was in the context of these provisions that ques~ions relating
to the parameters of judicial review of the exercise of a constitutional power
in the face of constitutional bar on the jurisdiction of the Court arose before
a Constitution Bench of this Court in the case of Kihoto Hallahan v. G
Zachillhu, [1992] Supp 2 SCC 651. The matter was examined by this Court
with reference, amongst others, to the immunity under Article 122, exclusivity
_f- of the jurisdiction vested in the authority mentioned in the Tenth Schedule
and the concept of "finality", in addition to an express bar making it a non-
justiciable area. Construing the word "finality" and referring, inter a/ia, to H
506 SUPREME COURT REPORTS [2007) 1 S.C.R.
A interpretation of similar finality clause in Article 217(3) in the case of Jyoti
Prakash Mitter and in Article 311 (3) as construed in Tulsiram Patel, this
Court held that the determinative jurisdiction of the Speaker or the Chairman
in the Tenth Schedule was a judicial power and it was inappropriate to claim
that it was within the non-justiciable legislative area. The Court referred to
the case of Express Newspaper (P) Ltd. v. Union of India, AIR (1958) SC
B 578 and quoted the exposition as to what distinguishes a judicial power from
a legislative power in Australian Boot Trade Employees Federation v.
Whybrow & Co., [1910) 10 CLR 266 by Is.sacs, J. as under:- +-
"If the dispute is as to the relative rights of parties as they rest
c on past or present circumstances, the award is in the nature of a
judgment, which might have been the decree of an ordinary
judicial tribunal acting under the ordinary judicial power. There
the law applicable to the case must be observed. If, however, the
dispute is as to what shall in the future be the mutual rights and
responsibilities of the parties - in other words, if no present rights
D
are asserted or denied, but a future rule of conduct is to be
prescribed, thus creating new rights and obligations, with sanctions
for non-conformity - then the determination that so prescribes,
call it an award, or arbitration, determination, or decision or what
you will, is essentially of a legislative character, and limited only by
E the law which authorises it. ff, again, there are neither present rights
asserted, nor a future rule of conduct prescribed, but merely a fact L
'·'
ascertained necessary for the practical effectuation of admitted
rights, the proceeding, though called an arbitration, is rather in the
nature of an appraisement or ministerial act."
F (Emphasis supplied)
372. The following observations in the judgment in Kihoto Hollohan
need to be quoted in extenso:-
G "96. The fiction in Paragraph 6(2), indeed, places it in the first
clause of Article 122 or 212, as the case may be. The words
"proceedings in Parliament" or "proceedings in the legislature of a
State" in Paragraph 6(2) have their corresponding expression in
Articles 122(1) and 212(1) respectively. This attracts an immunity
from mere irregularities of procedures.
H
RAJA RAM PAL v. THE HON'BLE SPEAKER. LOK SABHA [SABHARWAL, CJ.] 507
99. Where there is a /is - an affirmation by one party and denial A
by another - and the dispute necessarily involves a decision on
the rights and obligations of the parties to it and the authority
is called upon to decide it, there is an exercise ofjudicial power.
That authority is called a Tribunal, if it does not have all the
trappings of a Court. In Associated Cement Companies Ltd v. PN.
Sharma, [1965] 2 SCR 366, this Court said: (SCR pp. 386-87)
B
"... The main and the basic test however, is whether the
adjudicating power which a particular authority is empowered
to exercise, has been conferred on it by a statute and can be
described as a part of the State's inherent power exercised in c
discharging its judicial function. Applying this test, there can
be no doubt that the power which the State Government
exercises under Rule 6(5) and Rule 6(6) is a part of the State's
judicial power.... There is, in that sense, a lis; there is affirmation
by one party and denial by another, and the dispute
D
necessarily involves the rights and obligations of the parties
to it. The order which the State Government ultimately passes
is described as its decision and it is made final and binding."
101. In the operative conclusions we pronounced on November 12,
1991 we indicated in clauses (G) and (H) therein that judicial review E
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 F
the effect of limiting the scope of the jurisdiction. The principle that
is applied by the courts is that in spite of a finality clause it is open
to the court to examine whether the action of the authority under
challenge is ultra vires the powers conferred on the said authority.
Such an action can be ultra vires for the reason that it is in
contravention of a mandatory provision of the law conferring on G
the authority the power to take such an action. It will also be ultra
vires the powers conferred on the authority if it is vitiated by mala
fides or is colourable exercise of power based on extraneous and
irrelevant considerations. While exercising their certiorari
jurisdiction, the courts have applied the test whether the impugned H
508 SUPREME COURT REPORTS [2007] I S.C.R.
A action falls within the jurisdiction of the authority taking the
action· or it falls outside such jurisdiction. An ouster clause
confines judicial review in respect of actions falling outside the
jurisdiction of the authority taking such action but precludes
challenge to such action on the ground of an error committed in
the exercise of jurisdiction vested in the authority because such
B an action cannot be said to be an action without jurisdiction. An
ouster clause attaching finality to a determination, therefore, does
oust certiorari to some extent and it will be effective in ousting the
power of the court to review the decision of an inferior tribunal
by certiorari if the inferior tribunal has not acted without
c jurisdiction and has merely made an error of law which does not
affect its jurisdiction and if its decision is' not a nullity for some
reason such as breach ofrule ofnatural justice. [See: Administrative
Law, H WR. Wade, (6th edn.), pp. 724-26;Anisminic Ltd. v. Foreign
Compensation Commission, [1969] I All ER 208; S.E. Asia Fire
Bricks v. Non-Metallic Mineral Products Manufacturing
D
Employees Union, [1980] 2 All ER 689 (PC)].
I 09. In the light of the decisions referred to above and the nature
of function that is exercised by the Speaker/Chairman under
Paragraph6, the scope ofjudicial review under Articles I 36, and
E 226 and 227 of the Constitution in respect of an order passed by
the Speaker/Chairman under Paragraph 6 would be confined to
jurisdictional errors only viz., irifirmities based on violation of
constitutional mandate, mala tides, non-compliance with rules of
natural justice and perversity.
F
111. In the result, we hold on contentions (E) and (F):
That the Tenth Schedule does not, in providing for an
additional grant (sic ground) for disqualification and for
adjudication of disputed disqualifications, seek to create a
G non-justiciable constitutional area. The power to resolve
such disputes vested in the Speaker or Chairman is a judicial
power.
That Paragraph 6(1) of the Tenth Schedule, to .the extent it
H seeks to impart finality to the decision of the speakers/
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 509
Chairmen is valid. But the concept of statutory finality A
embodied in Paragraph 6(1) does not detract from or
abrogate judicial review under Articles 136, 226 and 227 of
the Constitution insofar as infirmities based on violations of
constitutional mandates, mala tides, non-compliance with
Rules of Natural Justice and perversity, are concerned.
B
That the deeming provision in Paragraph 6(2) of the Tenth
Schedule attracts an immunity analogous to that in Articles
122(1) and 212(1) of the Constitution as understood and
explained in Keshav Singh case to protect the validity of
proceedings ji-0111 mere irregularities of procedure. The C
deer,;ing provision, having regard to the words 'be deemed to
be proceedings in Parliament' or 'proceedings in the legislature
of a State' confines the scope of the fiction accordingly.
The Speakers/Chairmen while exercising powers and D
discharging functions under the Tenth Schedule act as Tribunal
adjudicating rights and obligations under the Tenth Schedule
and their decisions in that capacity are amenable to judicial
review."
(Emphasis supplied) E
373. In answer to the above submissions, the learned counsel for
Union of India would argue that the actions of Houses of Parliament in
exercise of their powers and privileges under Article 105 cannot be subjected
to the same parameters of judicial review as applied to other authorities. He F
would submit that it was clarified in the case of Kihoto Hallahan that the
authority mentioned in the Tenth Schedule was a Tribunal and the
proceedings of disqualification before it are not proceedings before the
House and thus the decision under Para 6(1) of the Tenth Schedule is not
a decision of the House nor is it subject to the approval of the House and
rather operates independently of the House. He would submit that the G
decision of the House in regulating its own proceedings including in the
matter of expulsion of a member for breach of privilege cannot be equated
to the decision of such authority as mentioned in the Tenth Schedule and
the House in such proceedings is not required to act in a quasi-judicial
manner. He would, in the same breath, concede that the House does act H
510 SUPREME COURT REPORTS [2007] l S.C.R.
A even in such matters in conformity with rules of natural justice.
374. 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
B 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 Ai:ticle 31 l (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
C the question of disqualification under Para 6 of the Tenth Schedule may be
acting as 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
D
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 I 05(3). It is a different matter as to what parameters, if any,
should regulate or control the judicial scrutiny of such proceedings.
E
375. In the case of UP Assembly, the issue was authoritatively settled
by this Court, and it was held, at pages 455-456, as under:-
"Art.212( I) seems to make it possible for a citizen to call in question
in the appropriate court of law the validity of any proceedings
F
inside the legislative chamber ifhis case is that the said proceedings
suffer not from mere irregularity ofprocedure, butfrom an illegality.
If the impugned procedure is illegal and unconstitutional, it would
be open to be scrutinized in a court of law, though such scrutiny
is prohibited if the complaint against the procedure is no more than
G this that the procedure was irregular."
(Emphasis supplied)
376. With reference to the above-quoted observations recognizing the
H permissibility of scrutiny in a court of law on allegation that the impugned
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL CJ.] 511
procedure was illegal or unconstitutional, the learned Additional Solicitor A
General submitted that these observations need to be clarified and the
expression "illegality" must necessarily mean "unconstitutionality", that is
violation of mandatory constitutional or statutory provisions.
377. The learned Additional Solicitor General has referred to Tej Kiran
Jain V. N. Sanjiva Reddy, [1970] 2 sec 272]. This was a matter arising out
B
of a suit claiming damages for defamatory statement made by the respondent
in Parliament. The suit had been dismissed by the High Court of Delhi in
view of the immunity from judicial redress as stated in Article 105(2). In this
court, the contention urged was that the immunity granted under Article
105(2) was confined to "relevant Parliament business" and not to something C
which is utterly irrelevant. This contention was rejected by Hidayatullah,
C.J. through observations in Para 8 that read as under:-
"8. In our judgment it is not possible to read the provisions of the
article in the way suggested. The article means what it says in D
language which could not be plainer. The article confers immunity
inter alia in respect of "anything said ... in Parliament". The word
"anything" is of the widest import and is equivalent to "everything".
The only limitation arises from the words "in Parliament" which
means during the sitting of Parliament and in the course of the
business of Parliament. We are concerned only with speeches in E
Lok Sabha. Once it was proved that Parliament was sitting and its
business was being transacted, anything said during the course of
that business was immune from proceedings in any Court this
immunity is not only complete but is as it should be. It is of the
essence of parliamentary system of Government that people's F
~-
representatives should be free to express themselves without fear
of legal consequences. What they say is only subject to the
discipline of the rules of Parliament, the good sense of the members
and the control of proceedings by the Speaker. The Courts have
no say in the matter and should really have none."
G
378. The Ld. Additional Solicitor General has also placed reliance on
certain observations of this court in Indira Nehru Gandhi v. Raj Narain
[ 197 5] Suppl. SCC I, in the context of application of Article 122 on the
contentions regarding unconstitutionality of the Constitution (30th
Amendment) Act 1975. Beg J. in the course of his judgment in Paras 506 H
512 SUPREME COURT REPORTS [2007] l S.C.R.
A & 507 observed as under:-
"506. Article 122 of the Constitution prevents this Court from
going into any question relating to irregularity of proceedings "in
Parliament".
B xxxx xx xx xxxx
507. What is alleged by the election petitioner is that the opposition
members of Parliament, who had been detained under the preventive
detention laws, were entitled to get notice of the proposed
c enactments and the Thirty-ninth Amendment, so as to be present
"in Parliament", to oppose these changes in the law. I am afraid,
such an objection is directly covered by the terms of Article 122
which debars every court from examining the propriety of
proceedings "in Parliament". If any privileges of members of
Parliament were involved, it was open to them to have the question
D raised "in Parliament". There is no provision of the Constitution
which has been pointed out to us providing for any notice to each
member of Parliament. That, I think, is also a matter completely
covered by Article 122 of the Constitution. All that this Court can
look into, in appropriate cases, is whether the procedure which
E amounts to legislation or, in the case of a constitutional amendment,
which is prescribed by Article 368 of the Constitution, was gone
through at all. As a proof of that, however, it will accept, as
conclusive evidence, a certificate of the Speaker that a Bill has been
duly passed. (see: State ofBihar v. Kameshwar, AIR [1952] SC 252,
F 266: 1952 SCR889)"
(Emphasis supplied)
379. In the same case construing the effect of the judgment in the case
of Pandit Sharma (11), Beg J. observed as under in para 508:-
G
"508. Again, this Court has held, in Sharma. v. Sri Krishna, AIR
(1960) SC 1186, 1189: (1961) 1 SCR 96) that a notice issued by the
Speaker of a Legislature for the breach of its privilege cannot be
questioned on the ground that the rules of procedure relating to
H proceedings for breach of privilege have not been observed. All
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 513
\_ these are internal matters of procedure which the Houses of A
' Parliament themselves regulate."
380. The submission of the Ld. Additional Solicitor General is that the
court recognized the inhibition against judicial scrutiny of internal matters
of procedure in which the Houses of Parliament can rightfully assert the
exclusive power to self-regulate.
B
38 l. In our considered view, the question before the court in the case
of Indira Nehru Gandhi essentially pertained to the lawfulness of the
' session of Parliament that had passed the constitutional amendment measure.
The concern of the court did not involve the legality of the act of the C
legislative body. As regards the views based on the holding in the case
of Pandit Sharma, it has already been observed that it was rather premature
for the court to consider as to whether any illegality vitiated the process of
the legislative assembly.
382. The prohibition contained in Article 122 (I) does not provide
D
immunity in cases of illegalities. In this context, reference may also be made
to the case of Smt. S. Ramaswami v. Union of India, [ 1992] Suppl. l SCR
108. The case mainly pertained to Article 124 (4) read with Judges (Inquiry)
Act 1968. While dealing, inter alia, with the overriding effect of the rules
made under Article 124(5) over the rules made under Article 118, this court E
at page 187 made the following observations:-
"We have already indicated the constitutional scheme in India and
the true import of clauses(4) and (5) ofarticle 124 read with the law
enacted under Article 124(5), m1mely, the Judges (Inquiry) Act, F
1968 and the Judges (Inquiry) Rules, 1969, which, inter alia
contemplate the provision for an opportunity to the concerned
Judge to show cause against the finding of 'guilty' in the report
before the Parliament takes it up for consideration along with the
motion for his removal. Along with the decision in Keshav Singh
has to be read the declaration made in Sub-Committee on Judicial G
Accountability that 'a law made under Article 124(5) will override
the rules made under Article 118 and shall be binding on both the
Houses of Parliament. A violation of such a law would constitute
illegality and could not be immune from judicial scrutiny under
Article 122(1) '. The scope .of permissible challenge by the H
514 SUPREME COURT REPORTS [2007] 1 S.C.R.
A concerned Judge to the order of removal made by the President
under Article 124(4) in the judicial review available after making of
the order of removal by the President will be determined on these
considerations ......... "
(Emphasis supplied)
B
383. The learned counsel for petitioners would refer, in the above
context, to a number of decisions rendered by different High Courts
+-
adopting a similar approach to construe Article 122 or provisions
corresponding thereto in other enactments.
c
384. Article 122(1) thus must be found to contemplate the twin test of
legality and constitutionality for any proceedings within the four walls of
Parliament. The fact that the case of UP Assembly dealt with the exercise of
the power of the House beyor:d its four-walls does not affect this view
which explicitly interpreted a constitutional provision dealing specifically
D with the extent of judicial review of the internal proceedings of the legislative
body. In this view, Article 122(1) displaces the English doctrine of exclusive
cognizance of internal proceedings of the House rendering irrelevant the
case law that emanated from courts in that jurisdiction. Any attempt to read
a limitation into Article 122 so as to restrict the court's jurisdiction to
E examination of the Parliament's procedure in case of unconstitutionality, as
opposed to illegality would amount to doing violence to the constitutional
text. Applying the principle of "expressio unius est exclusio alterius"
(whatever has not been included has by implication been excluded), it is
plain and clear that prohibition against examination on the touchstone of
F "irregularity of procedure" does not make taboo judicial review on findings
of illegality or unconstitutionality.
Parameters for Judicial review Re: Exercise of Parliamentary privileges
385. Learned Additional Solicitor General submitted that having regard
G to the jurisdiction vested in the judicature under Articles 32 and 226 of the
Constitution on the one hand and the tasks assigned to the legislature on
the other, the two organs must function rationally, harmoniously and in a
spirit of understanding within their respective spheres for such harmonious
working of the three constituents of the democratic State alone will help the
H peaceful development, growth and stabilization of the democratic way of life
- RAJA RAM PAL v. THE HON'BLE SPEAKER. LOK SABHA [SABHAR\VAL CJ.] 515
in the country. We are in full agreement with these submissions. A
386. The Additional Solicitor General has further submitted that while
having regard to the importance of the functions discharged by Parliament
under the Constitution and the majesty and grandeur of its task, it being the
ultimate repository of the faith of the people, it must be expected that
Parliament would always perform its functions and exercise its powers,
B
privileges and immunities in a reasonable manner, the reasonableness of the
....... manner of exercise not being amenable to judicial review. His submission is
that if Parliament were to exercise its powers and privileges in a manner
violative or subversive of, or wholly abhorrent to the Constitution, a limited
area of judicial scrutiny would be available, which limited judicial review c
would be distinct from the area of judicial review that is available when
administrative exercise of power under a statute falls for consideration. His
argument is that such limited judicial review is distinct from the exercise of
powers coupled with a purpose and also distinct from judicial scrutiny on
the ground of mala fides. It is his contention that the cou1ts of judicature D
in India have the power of judicial review to determine the existence of
privilege but once priviiege is shown to exist, the exercise of that privilege
and the manner of exercise that privilege must be left to the domain of
Parliament without any interference. Further, learned Additional Solicitor
General submits that while what takes place within the walls of the Parliament
is not available for scrutiny and even when the Parliament deals with matters E
outside its walls, in a matter supported by an acknowledged privilege, there
would be little scrutiny and very limited and restricted judicial review.
387. We find substance in the submission that it is always expected,
rather it should be a matter of presumption, that Parliament would always F
perform its functions and exercise its powers in a reasonable manner. But,
at the same time there is no scope for a general rule that the exercise of
powers by the legislature is not amenable to judicial review. This is neither
the letter nor the spirit of our Constitution. We find no reason not to accept
that the scope for judicial review in matters concerning Parliamentary
proceedings is limited and restricted. In fact this has been done by express G
prescription in the constitutional provisions, including the one contained in
Article 122(1). But our scrutiny cannot stop, as earlier held, merely on the
privilege being found, especially when breach of other constitutional
provisions has been alleged.
H
516 SUPREME COURT REPORTS [2007] 1 S.C.R.
A 388. It has been submitted by the learned Additional Solicitor General
that judicial review is the ability of the courts to examine the validity of
action. Validity can be tested only with reference to a norm. He argues that
where judicially manageable standards, that is normative standards, are not
available, judicial review must be impliedly excluded. He has submitted that
Parliament is not a body inferior to the courts. An administrative tribunal in
B whom statutory jurisdiction has been vested can certainly be subjected to
judicial review to discover errors of fact or errors of law within its j_urisdiction,
but Parliament cannot be attributed jurisdictional -errors.
389. We find the submissions substantially correct but not entirely
C correct. Non-existence of standards of judicial review is no reason to
conclude that judicial scrutiny is ousted. Jf standards for judicial review of
such matters as at hand are not yet determined, it is time to do so now.
Parliament indeed is a coordinate organ and its views do deserve deference
even while its acts are amenable to judicial scrutiny. While its acts,
particularly of the nature involved here ought not to be tested in the same
D
manner as an ordinary administrative action would be tested, there is no
foundation to the plea that a Legislative body cannot be attributed
jurisdictional error.
390. The learned Additional Solicitor General would further argue that
E the exercise of powers and privileges must not be treated as exercise of
jurisdiction, but in fact exercise of constituent power to preserve its character.
He stated that the Constitution did not contemplate that the contempt of
authority of Parliament would actually be tried and punished in a Court of
Judicature. He submitted that the frontiers of judicial review have now
F widened in that illegality, irrationality and procedural impropriety could be
causes, but such principles have absolutely no basis in judging Parliament's
action.
391. While we agree that contempt of authority of Parliament can be
tried and punished nowhere except before it, the judicial review of the
G mar..ner of exercise of power of contempt or privilege does not mean the said
jurisdiction is being usurped by the judicature. As has been noticed, in the
context of Article 122(1 ), mere irregularity of the procedure cannot be a
ground of challenge to the proceedings in Parliament or effect thereof, and
while same view can be adopted as to the element of "irrationality", but in
H our constitutional scheme, illegality or unconstitutionality will not save the
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 517
Parliamentary proceedings. A
392. It is the submission of the learned Additional Solicitor General that
the proceedings in question were proceedings which were entitled to
protection under Article 105(2). In other words, in respect of proceedings,
if a member is offered immunity, Parliament too is offered immunity. The
.. actions of Parliament, except when they are translated into law, cannot be
questioned in court .
B
393. We find the argument to be founded on reading of Article 105(2)
beyond its context. What is declared by the said clause as immune from
liability "to any proceedings in any court" is not any or every act of the C
Legislative body or members thereof, but only matters "in respect of
anything said or any vote given" by the members "in Parliament or any
Committee thereof'. If Article 105(2) were to be construed so broadly, it
would tend to save even the legislative Acts from judicial gaze, which would
militate against the constitutional provisions.
D
394. The learned Additional Solicitor General would urge that to view
Parliament as a body which is capable of committing an error in respect of
its powers, privileges and immunities would be an indirect comment that
Parliament may act unwarrantedly. There is every hope that the Indian
Parliament would never punish one for 'an ugly face', or apply a principle E
which is abhorrent to the constitution.
395. The learned counsel for the petitioners, on the other hand, have
submitted that upon it being found that the plenitude of powers possessed
by the Parliament under the written Constitution is subject to legislative p
competence and restrictions of fundamental rights; the general proposition
that fundamental rights cannot be invoked in matters concerning Parliamentary
privileges being unacceptable; even a member of legislature being entitled
to the protection of Articles 20 & 21 in case the exercise of Parliamentary
privilege; and Article 122(1) contemplating the twin test of legality and
constitutionality for any proceedings within the four walls of Parliament, as G
against mere procedural irregularity, thereby displacing the English doctrine
of exclusive cognizance of internal proceedings of the House, the restrictions
on judicial review propagated by learned Additional Solicitor General do not
deserve to be upheld.
H
~'
)
518 SUPREME COURT REPORTS [2007] I S.C.R.
A 396. We are of the view that the manner of exercise of the power or I
-<;
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
B by Article 122, or for that matter by Article I 05. If one was to accept what
was alleged while rescinding the resolution of expulsion by the 7th Lok
Sabha with conclusion that it was "inconsistent with and violative of the
well-accepted principles of the law of Parliamentary privilege and the basic
-
safeguards assured to all enshrined in the Constitution", it would be
c partisan action in the name of exercise of privilege. We are not going into
this issue but citing the incident as an illustration.
397. 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
D
judicial review of such matters as concern the powers and privileges of such
august body as the Parliament.
398. The learned Counsel for petitioners have submitted that the
expanded understanding of the fundamental rights in general and Articles
E 14 and 21 in particular, incorporates checks on arbitrariness. They place
reliance on the case of Bachan Singh v. State of Punjab, [1982] 3 SCC 24.
399. In the case of Bachan Singh, this court, inter alia, held, that
"Article 14 enacts primarily a guarantee against arbitrariness and inhibits
F State action, whether legislative or executive, which suffers from the vice
of arbitrariness" and that "Article 14 ...... was primarily a guarantee against
a;·bitrariness in State action". It was held in the context of Article 2 I
that :-
"17. The third fundamental right which strikes against arbitrariness
G in State action is that embodied in Article 21 . ...
... .. .... .. ....... ... .... .... .. .... Article 21 affords protection not only against
executive action but also against legislation and any law which
deprives a person of his life or personal liberty would be invalid
H unless it prescribes a procedure for such deprivation which is
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 519
reasonable, fair and just. The concept of reasonableness, it was A
held, runs through the entire fabric of the Constitution. ...
...... Eve1y facet of the law which deprives a person of his life or
personal liberty would therefore have to stand the test of
reasonableness, fairness and justness in order to be outside the
inhibition of Article 2 I."
B
(Emphasis supplied)
400. It has been submitted by the petitioners that since the validity of
the procedure followed in enforcement of the privilege by the Houses of C
Parliament is to be tested on the touchstone of Article 20 and Article 21, the
aforesaid tests of reasonableness, non-arbitrariness, non-perversity, fairness
and justice come into play even in relation to the action of the Legislature.
401. On the other hand, learned Additional Solicitor General submits
that the full effect of judicial review with reference to Article 21 in matters
D
involving claim of privileges by the legislature was not examined in the cases
of Pandit Sharma or the case of UP Assembly. He further submits that the
expanded understanding of Article 21, taking into account its inter-relationship
with Articles 14 and 19 pertains to developments subsequent to the
aforementioned cases relating to privileges of the legislature and that while E
scrutinizing the exercise of power by Parliament it would not be possible to
employ either the test of "fair, just and reasonable" or the principle of
reasonableness in administrative action.
402. The submission further is that the only principle which can afford F
judicial review is to examine whether the rule of the Constitution which pre-
supposes the underlying foundation of separation of powers has not been
infringed and a manifest intrusion into judicial power vested in courts of
justice has not taken place. To put slightly differently, according to the
learned Additional Solicitor General, the limited judicial review would involve
an inquiry as to whether the Parliament has not exercised privileges which G
are really matters covered by a statute and whose adjudication would
involve the exercise of judicial power conferred by a statute or the
Constitution.
403. According to the learned Additional Solicitor General, the discussion H
520 SUPREME COURT REPORTS [2007] 1 S.C.R
A with reference to Article 21 in the case of Pandit Sharma (I) proceeded ;
upon a demurrer and, therefore, there was no scope for a full-fledged
discussion on the amenability of the latter part of article 105(3) or Article
194(3) to the restrictions contained in Article 21.
404. In above context, he would refer to the case of Jatish Chandra
B Ghosh v. Hari Sadhan Mukherjee, [1961] 3 SCR 486. In that case, Dr.
Ghosh, a member of the legislative assembly, had published in a journal
certain questions which he had put in the assembly but which had been
disallowed by the Speaker. The questions disparaged the conduct of the
respondent who filed a criminal complaint against him and others alleging
C defamation. Dr. Ghosh pleaded privileges and immunity under Article 194 as
a bar to criminal prosecution. This claim was negatived, inter alia, on the
grounds that the matter fell clearly outside the scope of Article 194(1) and
Article 194(2) not being applicable since the publication was not under the
authority of the legislature nor could be termed as something said or vote
given in the legislature. The claim for immunity under Article 194(3) was also ·
D
repelled for the reason the immunity enjoyed by a member of House of
Commons is clearly confined to speeches made in Parliament and does not
extend· to the publication of the debate outside. It was held as under:-
"There is no absolute privilege attaching to the publication of
E extracts from the proceedings in the House of Commons and a
member, who has absolute privilege in respect of his speech in the
House itself, can claim only a qualified pri'.'ilege in respect of it if
he causes the same to be published in the public press."
405. The Ld. Counsel for Union of India concluded his submissions
F
stating that in any exercise of judicial scrutiny of acts of the legislaturn, there
would always be a presumption raised in favour of legitimate exercise of
power and no motive or ma/a fide can be attributed to it. In this context,
he would place reliance on observations of this court in the cases of K.
Nagaraj v. State of A.P., [1985] 1 SCC 523 and T Venkata Reddy v. State
G ofA.P.• [ 1985] 3 sec 198.
406. In the case of Nagaraj, this court observed in Para 36 as under:-
"36. The argument of malafides advanced by Shri A.T. Sampath,
H and adopted in passing by some of the other counsel, is without
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 521
any basis. The burden to establish mala tides is a heavy burden A
to discharge. Vague and casual allegations suggesting that a
certain act was done with an ulterior motive cannot be accepted
without proper pleadings and adequate proof, both of which are
conspicuously absent in these writ petitions. Besides, the
Ordinance-making power being a legislative power, the argument of
mala fides is misconceived. The Legislature, as a body, cannot be
B
--
accused of having passed a law for an extraneous purpose. Its
reasons for passing a law are those that are stated in the Objects
and Reasons and if, none are so stated, as appear from the
provisions enacted by it. Even assuming that the executive, in a
given case, has an ulterior motive in moving a legislation, that C
motive cannot render the passing of the law mala fide. This fund
of "transferred malice" is unknown in the field of legislation."
(Emphasis supplied)
D
407. In the case of T Venkata Reddy, the relevant observations in Para
14 read thus:-
"14 ........ the question is whether the validity of an Ordinance can
be tested on grounds similar to those on which an executive or
judicial action is tested. The legislative action under our E
Constitution is subject only to the limitations prescribed by the
Constitution and to no other. Any law made by the Legislature,
which it is not competent to pass, which is violative of the
provisions in Part III of the Constitution or any other constitutional
provision is ineffective. .......... .............. ... .. While the courts can
F
declare a statute unconstitutional when it transgresses constitutional
limits, they are precluded from inquiring into the propriety of the
exercise of the legislative power. It has to be assumed that the
legislative discretion is properly exercised. The motive of the
Legislature in passing a statute is beyond the scrutiny of courts.
Nor can the courts examine whether the Legislature had applied its G
mind to the provisions of a statute before passing it. The propriety,
expediency and necessity of a legislative act are for the
determination of the legislative authority and are not for
determination by the courts. An Ordinance passed either under
Article 123 or under Article 213 of the Constitution stands on the H
522 SUPREME COURT REPORTS [2007] I S.C.R.
A same footing ......... It cannot be treated as an executive action or _j
an administrative decision."
(Emphasis supplied)
408. On the question of ma/a fide, in the case of Pandit.Sharma(!),
B it was noticed that allegations in that nature had been made against the
Privileges Committee of the Legislative Assembly. This Court observed "the
Committee of Privileges ordinarily includes members of all parties represented
in the House and it i~ difficult to expect that the Committee, as a body, will
be actUated by any· ma/a fide intention against the petitioner''.. I.n the case
c of U.P. Assembly, after finding that Article 20 and Article 21 would apply,
this Court in Para 125 recognized the permissibility of judicial review in the
face of the impugned action being vitiated on account of caprice or ma/a
fides, in the following words:-
"If in a given case, the allegation made by the citizen is that he has
D been deprived of his liberty not in accordance with law, but for
capricious or ma/a fide reasons, this Court will have to examine the .
validity of the said contention, and it would be no answer in such y·
a case to say that the warrant issued against the citizen is a general
warrant and a general warrant must stop all further judicial inquiry
E and scrutiny."
409. The learned counsel for Union of India conceded that there would
be a marginal power of correcting abuse and, therefore, for judicial intervention
but this necessity would arise only in most outrageous or absurd situations
where th$l power had been abused under the guise of exercise of privilege.
F He again referred in this context to the judgment of Canada Supreme Court
in the case of Harvey v. New Brunswick, [1996] 2 SCR 876 in particular to
observations at pages 159 as under:-
"This is not to say that the courts have no role to play in the
G debate which arises where individual rights are alleged to conflict
with parliamentary privilege................. To prevent abuses cloaked
in the guise ofprivilege from trumping legitimate Charter interests,
the courts must inquire into the legitimacy of a claim of
parliamentary privilege. .......... "
H (Emphasis supplied)
RAJA RAM PAL v. THE HON'BLE .SPEAKER, LOK SABHA [SABHARWAL, CJ.] 523
410. While we have already rejected the reliance on the case mentioned A
above in support of the plea of exclusive cognizance vesting in the
Legislature, and restriction of judicial review to the extent of finding the
privilege, we find support to the case set up by the petitioners from
constitutional provisions and debates thereupon which show that it is the
duty of the Court to inquire into the legitimacy of the exercise of the power.
B
411. Dr. B.R. Ambedkar has described Article 32 as the very soul of
the Constitution - very heart of it - most important Article. That the
jurisdiction conferred on this court by Article 32 is an important and integral
part of the basic structure of the Constitution of India and that no act of
parliament can abrogate it or take it away except by way of impermissible c
erosion of fundamental principles of the constitutional scheme are settled
propositions of Indian jurisprudence.
412. In the case of State of Rajasthan v. Union of India, [1977] 3 SCC
592, while dealing with the issues arising out of communication by the then D
Union Home Minister to the nine States asking them to advise their
·'\- respective Governors to observe the legislative assemblies and seek fresh
mandate from the people, this court observed in Para 40 as under:-
"This Court has never abandoned its constitutional function as E
the final Judge of constitutionality of all acts purported to. be
done under the authority of the Constitution. It has not refused
to determine questions either of fact or of law so long as it has
found itself possessed of power to do it and the cause of justice
to be capable of being vindicated by its actions. But, it cannot
assume unto itself powers the Constitution lodges elsewhere or F
undertake tasks entrusted by the Constitution to other departments
of State which may be better equipped to perform them. The
scrupulously discharged duties of all guardians of the Constitution
include the duty not to transgress the limitations of their own
constitutionally circumscribed powers by trespassing into what is G
properly the domain of other constitutional organs. Questions of
political wisdom or executive policy only could not be subjected to
judicial control. No doubt executive policy must also be
subordinated to constitutionally sanctioned purposes. It has its
sphere and limitations. But, so long as it operates within that H
-f-
524 SUPREME COURT REPORTS [2007] 1 S.C.R.
A sphere, its operations are immune from judicial interference. '.This is
also a part of the doctrine of a rough separation of powers under
the Supremacy of the Constitution repeatedly propounded by this
Court and to which the Court unswervingly adheres even when its
views differ or change on the correct interpretation of a:particular
constitutional provision."
B
(Emphasis supplied)
413. We reaffirm the said resolve and find no reason·why in the facts
and circumstances at hand this court should take a different view so as to
abandon its constitutional functions as the final judge of constitutionality
c of all acts purported to be done under the authority of the Constitution,
though at the same time refraining from transgressing into the sphere that
is properly the domain of the Parliament.
414. ·Learned Additional Solicitor General submits that in the case of
D UP Assembly, the court had placed reliance on Articles 208 and 212 which
contemplate that rules can be framed by the legislature subject to the
provisions of the Constitution which in tum implies that such rules are -.f
compliant with the fundamental rights guarahteed 0by Part III. He submits
that if the rules framed under Article 118 (which corresponds to Article 208)
E are consistent with Part III of the Constitution then the exercise of powers,
privileges and immunities is bound to be a fair exercise and Parliament can
be safely attributed such an intention.
415. While it is ttue that there is no challenge to the Rules of Procedure
and Conduct of Business · in .Lok Sabha and Rules of Procedure and
F Conduct of Business in the Council of States, as made by the two Houses
of Parliament in exercise of enabling powers under Article 118 (I), we are of
the opinion that mere availability of Rules is never a guarantee that they
have been duly followed. What we are concerned with, given the limits
prescribed in Article 122( I), is not "irregularity of procedure" but illegalities
G or unconstitutionalities.
416. In the context of the discretionary power conferred on the Central
Government by Section 237(b) of the.Companies Act, 1956 to order an
investigation into the affairs of a.company in the event of the Government
forming_ an opinion that circumstances exist suggesting, inter alia, that the
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 525
business of the company is being conducted with intent to defraud its A
creditors, this Court in the case of Barium Chemicals Ltd v. Company Law
Board, AIR ( 1967) SC 295 held that the scope for judicial review of the action
would be "strictly limited". While no difficulty would arise if it could be
shown that no opinion had been formed, it was observed that:-
" ......there is a difference between not forming an opinion at all and
B
forming an opinion upon grounds, which, if a court could go into
that question at all, could be regarded as inapt or insufficient or
irrelevant."
417. It was further observed that:- c
"No doubt the formation of opinion is subjective but the existence
of circumstances relevant to the inference as the sine qua non for
action must be demonstrable. "
(Emphasis supplied)
D
418. It was observed in Para 60 of the judgment as under:-
Though an order passed in exercise of power under a statute
cannot be challenged on the ground of propriety or sufficiency, it E
is liable to be quashed on the ground of mala tides dishonesty or
corrupt purpose. Even if it is passed in good faith and with the best
of intention to further the purpose of the legislation which confers
the power, since the Authority has to act in accordance with and
within the limits of that legislation, its order can also be challenged F
if it is beyond those limits or is passed on grounds extraneous to
the legislation or if there are no grounds at all for passing it or
if the grounds are such that no one can reasonably arrive at the
opinion or satisfaction requisite under the legislation ........ "
(Emphasis supplied) G
419. In the case ofRohtas Industries Ltd. v. S.D. Agarwal, [1969] 1 SCC
325, facing similar issues in the context of same statutory provisions, this
Court followed the principle laid down in the case of Barium Chemicals and
held that in the event of existence of requisite conditions being challenged:- H
-f-
526 SUPREME COURT REPORTS [2007] 1 S.C.R.
A " ......... the courts are entitled to examine whether those circumstances
were existing ·when the order was made. Jn other words, the
existence of the circumstances in question are open to judicial
review though the opinion formed by the Government is not
amenable to review by the Courts."
B (Emphasis supplied)
420. Holding that there must be a real exercise of the power by the
authority, it was further observed that:-
" ... authority must be exercised honestly and not for corrupt or
c ulterior purposes. The authority must form the requisite opinion
honestly and offer applying its mind to the relevant materials before
it."
xxxx xxxx xxxx
D
"It 'must act reasonably and not capriciously or arbitrarily' and that
if it were established that there were no materials on which
requisite opinion could be formed, the Court could legitimately
'infer that the authority did not apply its mind to the relevant
facts'."
E
(Emphasis supplied)
421. The case of S.R. Bommai v. Union of India, [1994] 3 SCC 1 had
given rise to challenge to the constitutional validity of the proclamation
under Article 356 issued by the President, inter alia, ordering dissolution
F of the Legislative Assembly of a State, assuming to himself the functions
of the Government of the State, upon declaration of satisfaction that a
situation had arisen in which government of the said State cannot be carried
on in accordance with the provisions of the Constitution. The matter had
given rise to questions about the scope of judicial review of the satisfaction
G recorded by the President in such behalf. It was held through majority by
the Constitution Bench ~9 Judges) of this Court that the exercise of power
by the President under Article 356(1) to issue such a proclamation is subject
to judicial review at least to the extent of examining whether the conditions
precedent to the issuance of the proclamation have been satisfied or not.
For purposes of such examination, the exercise would necessarily involve
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 527
- 't "the scrutiny as to whether there existed material" for such a satisfaction
being arrived at. It was held that· it was not "any material" but material
"which would lead to the conclusion" requisite for such proclamation and
therefore, "the material in question has to be such as would induce a
reasonable man to come to the conclusion in question". The Court held that
A
although "the sufficiency or otherwise of the material cannot be questioned,
the legitimacy of inference drawn from such material is certainly open to
B
judicial review." The following observations appearing in Para 96 of the
judgment in the case of S.R. Bommai need to be quoted in extenso:
"Democracy and federalism are the essential features of our
Constitution and are part of its basic structure. Any interpretation c
that we may place on Article 356 must, therefore help to preserve
and not subvert their fabric. The power vested de jure in the
President but de facto in the Council of Ministers under Article 3 56
has all the latent capacity to emasculate the two basic features
of the Constitution and hence it is necessary to scrutinise the D
material on the basis of which the advice is given and the President
forms his satisfaction more closely and circumspectly. This can
be done by the courts while confining themselves to the
acknowledged parameters of the judicial review as discussed
above, viz., illegality, irrationality and mala tides. Such scrutiny
of the material will also be within the judicially discoverable and E
manageable standards. "
(Emphasis supplied)
422. Ramaswamy, J. in his separate judgment in the case of S.R.
-....;( F
Bommai observed in Para 255 as under:-
"Judicial review is a basic feature of the Constitution. This Court/
High Courts have constitutional duty and responsibility to exercise
judicial review as sentinel on the qui vive. Judicial review is not
concerned with the merits of the decision, but with the manner in G
which the decision was taken. "
_......,.._ (Emphasis supplied)
423. In Para 256, Ramaswamy, J. clarified that:- H
528 SUPREME COURT REPORTS [2007] 1 S.C.R.
A "Judicial reveiw must be distinguished from the justiciability by ;
·-+
the court. The two concepts are not synonymous. The power of
judicial review is a constituent power and cannot be abdicated by
judicial process of interpretation. However, justiciability of the
decision taken by the President is one of exercise of the power by
the court hedged by self-imposed judicial restraint. It is a cardinal
B principle of our Constitution that no one, howsoever lofty, can
claim to be the sole judge of the power given under the
Constitution. Its actions are within the confines of the powers -+--
given by the Constitution."
(Emphasis supplied)
c
424. At the same time, he circumscribed the limits by observing, in Para
260, as under:-
"The traditional parameters of judicial review, therefore, cannot
D be extended to the area of exceptional and extraordinary powers
exercised under Article 356. The doctrine ofproportionality cannot
be extended to the power exercised under Article 356 ........ "
425. In Para 215, he held that:-
E " ........... The doctrine that the satisfaction reached by an
administrative officer based on irrelevant and relevant grounds
and when some irrelevant grounds were taken into account, the
whole order gets vitiated has no application to the action under
Article 356. Judicial review of the Presidential Proclamation is
not concerned with the merits of the decision, but to the manner
F in which the decision had been reached. The satisfaction of the
President cannot be equated with the discretion conferred upon an
administrative agency, of his subjective satisfaction upon objective
material likP. in detention cases, administrative action or by
subordinate legislation ......... "
G (Emphasis supplied)
Jeevan Reddy and Agrawal, JJ., in their separate but concurring
judgment, held that:-
" ........the truth or correctness of the material cannot be questioned
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 529
by the court nor will it go into the adequacy of the material. It will A
also not substitute its opinion for that of the President. 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. The ground of mala
tides takes in inter alia situations where the Proclamation is found
to be a clear case of abuse of power, or what is sometimes called
B
fraud on power - cases where this power is invoked for achieving
oblique ends. This is indeed merely an elaboration of the said
ground."
(Emphasis supplied) C
427. They also recognized, in Para 375, the need in such matters for
regard being had to the effect that what was under the scanner before the
adjudicator was the exercise of power vested in highest constitutional
authority. They held as under:- D
"It is necessary to reiterate that the court must be conscious while
examining the validity of the Proclamation that it is a power
vested in the highest constitutional functionary of the Nation. The
court will not lightly presume abuse or misuse. The court would,
as it should, tread wearily, making allowance for the fact that the E
President and the Union Council of Ministers are the best judges
of the situation, that they alone are in possession of information
and material sensitive in nature sometimes and that the Constitution
has trusted their judgment in the matter. But all this does not mean
that the President and the Union Council of Ministers are the F
final arbiters in the matter or that their opinion is conclusive. "
(Emphasis supplied)
..;>
-I 428. Jeevan Reddy and Agrawal, JJ., concurred with Ramaswamy J., by
observing, in Para 373, as under:- G
"So far as the approach adopted by this Court in Barium Chemicals
is concerned, it is a decision concerning subjective satisfaction of
an authority created by a statute. The principles evolved then
cannot ipso facto be extended to the exercise of a constitutional H
530 SUPREME COURT REPORTS [2007] 1 S.C.R.
A power under Article 356. Having regard to the.fact that this is a
high constitutional power exercised by the highest constitutional
functionary of the Nation, it may not be appropriate to adopt the
tests applicable in the case of action taken by statutory or
administrative authorities - nor at any rate, in their entirety."
B (Emphasis supplied)
429. A controversy similar to the one in the case of S.R. Bommai arose
before this Court in Rameshwar Prasad v. Union of India, [2006] 2 SCC 1.
The questions raised once again concerned the validity of the subjective
c satisfaction of the President under Article 356 for issue of proclamation.
Following the spirit of the judgment of S.R. Bommai, with due deference to
the exceptional character of the power exercised by the President under
Article 356 which cannot be treated on a par with an.administrative action
and so the validity whereof cannot be examined by applying the grounds
available for challenge of an administrative action, this Court held that the
D power is not absolute but subject to checks & balances and judicial review.
Summary of the Principles relating to Parameter of Judicial Rev~w in
relation to exercise of Parliamentary Provisions
E 430. 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;
F
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-ordinat-e constitutional
status, or even the status of an exalted constitutional functionaries,
G 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
H by the legislature are for the determination of the legislative
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL CJ.] 531
authority and not for determination by the courts; A
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 B
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; c
£ 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
D
legislature being exceptional and extraordinary its acts, particularly
relating to exercise there:>f, 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 E
review and within the judicially discoverable & 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
F
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; G
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 H
_,,
-~
532 SUPREME COURT REPORTS [2007] l S.C.R.
A 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) 0f the Constitution; Jim
B 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;
~
c 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
D
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;
E 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
F y...._ _ _
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
G being extremely heavy
q. The rules which the legislature has to make for regulating its
proced~re and the conduct of its business have to be subject to
..
the provisions of the Constitution;
+
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 533
r. Mere availability of the Rules of Procedure and Conduct of A
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
B
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; c
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 oflack of jurisdiction or it being a nullity for some
reason such as gross illegality, irrationality, violation of D
constitutional mandate, ma/a fides, non-compliance with rules of
natural justice and perversity;
431. It can now be examined if the manner of exercise of the power of
expulsion in the cases at hand suffers from any such illegality or
unconstitutionality as to call for interference by this Court. E
Examination of the individual cases of the Petitioners
432. It is the contention of the petitioners that the impugned action on
the part of each House of Parliament expelling them from the membership F
suffers from the vice of ma/a fide as decision had already been taken to
expel them. In this context they would refer, inter alia, to the declaration on
the part of the Hon'ble Speaker, Lok Sabha on the floor of the House on
12th December 2005 that "nobody wculd be spared". The contention is that
the inquiries were sham and the matter was approached with a pre-determined
disposition against all the basic cannons of fair play & natural justice. G
433. On the other hand, it has been argued by Shri Andhyarujina that
.- no ma/a fide or ulterior motive can be attributed to the Houses of Parliament
also for the reason that the impugned decisions were taken by the Houses
as a whole, with utmost good faith in the interest of safeguarding the H
.f-
534 SUPREME COURT REPORTS [2007] 1 S.C.R.
A standing and reputation of Parliament. Learned counsel would also submit
that no member of either House had disputed the findings of misconduct
and it was not open to anyone to question anything said or done in the
House by suggesting that the actions or words were inspired by improper
motives.
B 434. As already observed in earlier part of this judgment, the Legislature
cannot ordinarily be accused of having acted for an extraneous purpose or
being actuated by caprice or ma/a fide intention. The Court would not
lightly presume abuse or misuse of authority by such august bodies also
because allowance is always to be given to the fact that the legislature is
C the best Judge in such matters.
435. 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 'ble Speaker made
on the floor of the House on 12th December 2005 has been extracted in the
D
counter affidavit filed on behalf of the Union of India. It is pertinent to note
that before stating that 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
E 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
F drawn also from parties in opposition rather goes to show that the resolve
at that stage was to find the truth.
436. In these circumstances, we are unable to .accept the allegation of
ma/a fide on the ground that decision had already been taken to expel them.
Even otherwise, it cannot be ignored that the dissent within the respective
G Committees of the two Houses essentially pertained to the procedure
adopted. 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 that of the Legislative
chamber which being collective body, it is difficult to attribute motive
H thereto, in particular, in the face of the fact that the resolutions in question
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 535
were virtually unanimous as there was no demand at any stage from any A
quarter for division of votes.
437. It has been contended by the petitioners that the circumstances
did not warrant the exercise by the Houses of Parliament of the power of
expulsion inasmuch as the persons behind the sting operations were driven
by motives of pelf and profit. In this context, the learned counsel for
B
petitioners would refer repeatedly to the evidence, in particular, of Mr.
Aniruddha Bahal as adduced before the Inquiry Committee of Lok Sabha
wherein he would concede certain financial gains on account of arrangements
with the television channels for telecast of the programme in question.
c
438. 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 D
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 E
expediency and necessity of exercise of such a power by the Legislature is
for determination by the latter and not by the Courts.
I
=i. 439. The petitioners have questioned the validity of the impugned
actions on the ground that the settled procedure and mechanism for F
bringing about cessation of the membership were by-passed.
440. In the above context, reference was first made to the procedure
prescribed in Article· 103 and the Tenth Schedule. But then, we have already
found that the purposes of the procedure prescribed in both the said
provisions of the Constitution are entirely different. While Article 103 relates G
to disqualifications prescribed in Article 102, the tenth schedule pertains to
the disqualification on account of defection. These provisions have no
nexus whatsoever with the exercise of power of expulsion claimed as a
privilege available to the Houses of Parliament under Article 105(3). This
argument, therefore, cannot cut any ice in favour of the petitioners. H
536 SUPREME COURT REPORTS (2007) l S.C.R.
A 441. The main thrust of the submissions of the petitioners in the
context of avoidance of settled procedure and mechanism, however, was on
the fact that the machinery of Privileges Committee for which provision
exists in the Rules of Procedure and Conduct of Business for each of the
two Houses was not resorted to. It has been contended that the matters
were referred, for no just or sufficient reason, to Inquiry Committees other
B than the Privileges Committees, in the case of Lok Sabha to a Committee
specially set up for the purpose. This, as per the arguments vociferously .
,,,.
advanced on behalf of the petitioners, should be held as sufficient to vitiate
the whole process. Mr. Ram Jethamalani, Senior Advocate went to the
extent of suggesting that the procedure followed was ad-hoc procedure and,
C therefore, it could not be claimed by anyone that the established procedure
had been complied with.
442. We find no substance in the abovesaid grievances of the
petitioners. The matters pertaining to the two Members of Rajya Sabha
were referred to ,the Committee on Ethics which is also a mechanism
D provided by the Rules of Procedure and Conduct of Business in the said
House, While it is correct that the matters pertaining to the Members of Lok
Sabha were referred to a Committee specially constituted for the purpose
but nothing turns on that fact. It may be observed that under circumstances
in question the composition of the Committee itself is sufficient to show that
E it was not a partisan Committee. The terms of reference for the Committee
required it to make investigation into the allegations.
443. The conclusions reached by the Inquiry Committee and
recommendations made have been accepted by passing of resolutions by
the two Houses that have adopted the reports of the respective Committees.
F
444. Article 118 empowers each House of Parliament to make rules for
regulating its procedure. The rules of the procedure of both Houses permit
constitution of Committees. There is no illegality attached to constitution
of a Special Committee by the Speaker, Lok Sabha for purposes of
investigation into the allegations against members of the said House. The
G argument of ad-hoc procedure, therefore, does not appeal to us.
445. The petitioners' case is that the procedures adopted by the
Committees of the two Houses were neither reasonable nor fair. Further, they
contend that the entire inquiry was improper and illegal inasmuch as rules
H of natural justice were flouted. In this context, the grievances of the )
I
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 537
+ petitioners are manifold. They would state that proper opportunity was not A
given to them to defend themselves; they were denied the opportunity of
defending themselves through legal counsel or to give opportunity to
explain; the request for supply of the material, in particular the un-edited
versions of videography for testing. the veracity of such evidence was
turned down and doctored or morphed video-clippings were admitted into
evidence, the entire procedure being unduly hurried. As already noted the
B
scope of judicial review in these matters is restricted and limited. Regarding
non-grant of reasonable opportunity, we reiterate what was recently held in
Jagjit Singh v. State of Haryana & Ors., (WP (C) No. 287 of 2004 decided
on 11.12.2006] that the principles ofnaturaljustice are not immutable but are
flexible; they cannot be cast in a rigid mould and put in a straitjacket and C
the compliance thereof has to be considered in the facts and circumstances
of each case.
446. We outrightly reject the argument of denial of reasonable
opportunity and also that proceedings were concluded in a hurry. It has D
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, E
which was granted to the petitioners.
447. As has been pointed out by the learned counsel on behalf of the
Union of India, basing his submissions on the main report of the Inquiry
Committee of Lok Sabha, the request for supply of full-footage of video F
recordings and audio tapes or extension of time or representation through
counsel for such purposes did not find favour with the Inquiry Committee
mainly because the Committee had offered to the concerned Members of
Lok Sabha an opportunity to view the relevant video-footage that was
available with the Committee and point out the discrepancies therein, if any,
to the it. But, as is mentioned in the report copy of which has been made G
available by the Union of India to us, the petitioners themselves chose to
tum down the said offer. The situation was almost similar to the one in
Jagjit Singh 's case.
448. We agree with the submissions of the learned counsel for Union H
538 SUPREME COURT REPORTS [2007] I S.C.R.
A 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.
B 449. The reports of the Inquiry Committee of Lok Sabha and the
Committee on Ethics of Rajya Sabha indicate that both of the said Committees
\
had called for explanations from each of the Members in question and had
given due consideration to the same. The submissions of the learned
counsel for Union of India that the proceedings of the respective Committees
c were open to one and all, including these petitioners who actually participated
in the proceedings could not be refuted. Therefore, it is not permissible to
the petitioners to contend that evidence had been taken behind their back.
The reports further show that the Committees had taken care not to proceed
on the edited versions of the video recordings. Each of them insisted and
procured the raw video-footage of the different sting operations and drew
D
conclusions after viewing the same. As pointed out by the learned counsel
for Union oflndia, 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 Rajya Sabha. Dr. Chhattrapal
~ingh Lodha had sought to attribute the receipt of money to a different
E transaction connected with some organization he was heading. But this
explanation was not believed by the Committee on Ethics that unanimously
found his complicity in unethical behavior on account of acceptance of
money for tabling questions in Rajya Sabha. Dr. Swami Sakshiji Maharaj, on
the other hand, went to the extent of expressing his regrets and displaying
F a feeling of shame for his conduct even before the Committee on Ethics.
450. It is the contention of the petitioners that the evidence relied upon
by the two Houses of Parliament does not inspire confidence and could not
constitute a case of breach of privilege. Their argument is that the decision
of expulsion is vitiated since it violated all sense of proportionality, fairness,
G legality,_ equality, justice or good conscience, and it being bad in law also
because, as a consequence, the petitioners have suffered irreparable loss
inasmuch as their image and prestige had been lowered in the eyes of the
electorate.
+
H 451. We are of the considered view that the impugned resolutions of
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K THAKKER, J.) 539
"'-+ Lok Sabha and Rajya Sabha cannot be questioned before us on the plea A
of proportionality. We are not sitting in appeal over the decision of the
Legislative chambers with regard to the extent of punishment that deserved
to be meted out in cases of this nature. That is a matter which must be left
to the prerogative and sole discretion of the legislative body. All the more
so because it is the latter which is the best Judge in exercise of its
jurisdiction the object of which is self-protection. So long as the orders of
B
expulsion are not illegal or unconstitutional, we are not concerned with the
~
consequences for the petitioners on account of these expulsions.
452. In these proceedings, this Court cannot not allow the truthfulness
or correctness of the material to be questioned or permit the petitioners to c
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 Jong 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
D
whereof are reflected in the Inquiry reports and on which subject the
~· petitioners have not raised any issue of fact.
453. On perusal of the Inquiry reports, we find that there is no violation
of any of the fundamental rights in general and Articles 14, 20 or 21 in
particular. Proper opportunity to explain and defend having been given to E
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.
~'Y
F
454. Before concluding, we place on record our appreciation for able
assistance rendered by learned counsel for the parties in the matter.
455. 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 G
~espective Houses of Parliament, being devoid of merits, are dismissed.
~- C.K THAKKER, J.:
1. I have had the benefit of reading the erudite judgment prepared by H
540 SUPREME COURT REPORTS [2007] 1 S.C.R.
A my Lord the Chief Justice. I am in agreement with the final order dismissing ~:
the petitions. Keeping in view, however, the issue in these matters which
is indeed of great public importance having far-reaching consequences to
·one of the largest democracies of the world, I intend to consider it in detail.
2. In these I I petitions (9 by members of Lok Sabha and 2 by members
B of Rajya Sabha), the petitioners have challenged the proceedings initiated
against them by Parliament, the reports submitted by the Committees
constituted by Parliament holding them guilty of the charges levelled against
them and notifications expelling them as members of Parliament.
C 3. The 'unfortunate background' of the case has been dealt with by
the learned Chief Justice and I do not intend to repeat it. Suffice it to say
that it was alleged against the petitioners that they accepted money for
tabling questions/raising issues in Parliament. Committees were appointed to
inquire into the allegations and conduct ofHon'ble Members. The allegations
were found to be correct and pursuant to the reports submitted by the
D
Committees, the Members were expelled by Parliament. Those Members
have challenged the impugned action of expulsion.
4. The Court had been ably assisted by the learned counsel for the
parties on the central question of Parliamentary privileges, the power of the
E House to deal with those privileges and the ambit and scope of judicial
review in such matters.
5. At the outset, I wish to make it clear that I am considering the
controversy whether Parliament has power to expel a member and whether
F such power and privilege is covered by clause (3) of Article 105 of the
Constitution. I may clarify that I may not be understood to have expressed
final opinion one way or the other on several questions raised by the parties
and dealt with in this judgment except to the extent they relate or have
relevance to the central issue of expulsion of membership of Parliament.
G PARLIAMENTARY PRIVILEGES: MEANING
6. An important as also a complicated question is What do we
understand by 'parliamentary privileges'? ~
H 7. "Nothing", said Dicey, "is harder to define than the extent of the
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA (C.K. THAKKER, l] 541
indefinite powers or rights posse~sed by either House of Parliament under A
the head of privilege or law and custom of Parliament".
8. Though all the three expressions, powers, privileges and immunities
are invariably used in almost all Constitutions of the world, they are different
in their meanings and also in contents.
B
9. 'Power' means 'the ability to do something or to act in a particular
way'. It is a right conferred upon a person by the law to alter, by his own
will directed to that end; the rights, duties, liabilities or other legal relations
either of himself or of other persons. It is a comprehensive word which
includes procedural and substantive rights which can be exercised by a
person or an authority.
c
10. 'Privilege' is a special right, advantage or benefit conferred on a
particular person. It ic; a peculiar advantage or favour granted to one person
as against another to do certain acts. Inherent in the term is the idea of
something, apart and distinct from a common right which is enjoyed by all D
persons and connotes some sort of special grant by the sovereign.
11. 'Immunity' is an exemption or freedom from general obligation,
duty, burden or penalty. Exemption from appearance before a court of law
or other authority, freedom from prosecution, protection from punishment,
etc. are immunities granted to certain persons or office bearers. E
12. Sir Erskin May, in his well-known work 'Treatise on The Law,
Privileges, Proceedings and Usage ofParliament', (23rd Edn.); p. 75 states;
"Parliamentary privilege is the sum of the peculiar rights
enjoyed by each House collectively as a constituent part of the F
High Court of Parliament, and by Members of each House
individually, without which they could not discharge their functions,
and which exceed those possessed by other bodies or individuals.
Thus privilege, though part of the law of the land, is to a certain
extent an exemption from the general law. Certain rights and G
immunities such as freedom from arrest or freedom of speech
belong primarily to individual Members of each House and exist
because the House cannot perform its functions without unimpeded
use of the services of its Members. Other such rights and
immunities such as the power to punish for contempt and the
H
542 SUPREME COURT REPORTS [2007] I S.C.R.
A power to regulate its own constitution belong primarily to each
House as a collective body, for the protection of its Members and
the vindication of its own authority and dignity. Fundamentally,
however, it is only as a means to the effective discharge of the
collective functions of the House that the individual privileges are
enjoyed by Members".
B
13. Jn Ha/sbury's Laws ofEngland, (4th Edn.; Reissue, Vol. 34; p. 553;
para 1002); it has been stated; +-
"Claim to rights and privileges. The House of Lords and the
House of Commons claim for their members, both individually and
c 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.
Jn 1705 the House of Lords resolved that neither House had power
to create any new privilege and when this was communicated to the
D Commons, that House agreed. Each House is the guardian of its
own privileges and claims to be the sole judge of any matter that
may arise which in any way impinges upon them, and, if it deems
it advisable, to punish any person whom it considers to be guilty
of a breach of privilege or a contempt of the House".
E 14. In the leading case of Powers, Privileges and Immunities of State
Legislatures, Article I 43, Constitution ofIndia, Re, [ 1965] l SCR 413 : AIR
(1965) SC 745, Sarkar, J. (as His Lordship then was) stated; "I would like at
this stage to say a few general words about "powers, privileges and
immunities" of the House of Commons or its members. First I wish to note
F that it is not necessary for our purposes to make a distinction between
"privileges", "powers" and "immunities". They are no doubt different in the
matter of their respective contents but perhaps in no otherwise. Thus the
right of the House to have absolute control of its internal proceedings may
be considered as its privilege, its right to punish one for contempt may be
more properly described as jts power, while the right that no member shall
G be liable for anything said in the House may be really. an immunity".
15. In 'Parliamentary Privilege - First Report' (Lord Nicholas Report),
it was observed;
"Parliamentary privilege consists of the rights and immunities
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 543
which the two Houses of Parliament and their members and officers A
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."
B
RAISON D'ETRE FOR P RJVJLEGES
16. The raison d'etre for these privileges is again succinctly explained
by Sir Erskine May thus; C
"The distinctive mark of a privilege is its ancilliary 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 used of the services of its Members; D
and by each House for the protection of its Members and the
vindication of its own authority and dignity."
17. Elected representatives, however, are not placed above the law by
way of parliamentary privileges; they are simply granted certain advantages
and basic exemptions from legal process in order that the House may E
function independently, efficiently and fearlessly. This is in the interest of
the nation as a whole.
PARLIAMENT: WHETHER POSSESSES POWER TO EXPEL MEMBERS
18. The basic and fundamental question raised by the petitioners in all
F
these petitions is the power of Parliament to expel a member. Other
incidental and ancillary questions centre round the main question as to
authority of a House of Legislature of expulsion from membership. If the sole
object or paramount consideration of granting powers, privileges
and immunities to the members of Legislature is to enable them to ensure G
that they perform their functions, exercise their rights and discharge their
duties effectively, efficiently and without interference of outside agency or
authority, it is difficult to digest that in case of abuse or misuse of such
privilege by any member, no action can be taken by the Legislature, the
parent body. H
544 SUPREME COURT REPORTS [2007] 1 S.C.R.
A 19. I intend to examine the question on principle as well as on practice.
It would be appropriate if I analyse the legal aspects in the light of
constitutional provisions of India and of other countries, factual
..
considerations and relevant case law on the point.
AMERICAN LAW
B
20. So far as the United States of America is concerned, the Constitution
itself recognizes such right. Section 5 of Article 1 of the Constitution of the
United States confers such right on each House of the Legislature. Sub-
section (2) reads thus;
c "(2) Each House may determine the rule~ of its proceedings, punish
its members for disorderly behavior, and, with the concurrence of
two-thirds, expel a member."
(emphasis supplied)
21. Leading Authors on the Constitution have also stated that each
D House possesses the power to expel a member in appropriate cases.
22. Cooley in his well-known work 'Treatise on the Constitutional
Limitations', (1972 Edn., p. 133); states:
" Each House has also the power to punish members for
E
disorderly behaviour, and other contempts of its authority, and
also to expel a member for any cause which seems to the body to
render it unfit that he continue to occupy one of its seats. This
power is sometimes conferred by the constitution, but it exists
whether expressly conferred or not. It is a necessary and incidental
F power, to enable the house to perform its high functions and is Y--
necessary to the safety of the State. It is a power of protection.
A member may be physically, mentally, or morally wholly unfit; he
may be affected with a contagious disease, or insane, or noisy,
violent and disorderly, or in the habit of using profane, obscene,
and abusive language. And independently of parliamentary customs
G and usages, our legislative houses have the power to protect
themselves by the punishment and expulsion of a member and the
Courts cannot inquire into the justice of the decision, or look into
the proceedings to see whether opportunity for defence was
furnished or not."
H (emphasis supplied)
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J] 545
23. Another well-known authority on the point is Willoughby, who in A
his work "Constitutional Law of the United States", (SecondEdn.; p. 256);
says;
"This right of expulsion is to be sharply distinguished from
the right to refuse to admit to membership. In the latter case, as
has been seen, the questions involved are, in the main, the perhaps B
exclusively, those which relate to the Constitutional qualifications
of those persons presenting themselves for admission or to the
regularity and legality of the elections at which such persons have
been selected or appointed. In the former case, that is, of expulsion,
these matters may be considered, but, in addition, action may be C
predicated upon the personal character or acts of the parties
concerned; and, as to his last matter, as will presently be seen, the
chief point of controversy has been whether the acts of which
complaint is made should be only those which have occurred
subsequent to election and have a bearing upon the dignity of
Congress and the due performance of its functions. D
xxxx xxxx xx xx
Jn determining whether or not a member ofcongress has been
guilty ofsuch acts as to warrant his expulsion the House concerned
does not sit as a criminal trial court, and is not, therefore, bound E
by the rules of evidence, and the requirements as the certitude of
guilt which prevail in a criminal character, but only as to
unfitness for participation in the deliberations and decisions of
congress."
(emphasis supplied)
.. -"t F
24. Dealing with the question of expulsion by the House and the power
of Courts, Pritchett in his book 'American Constitution' (Third Edn., p. 146);
observed;
"Expulsion and Censure : Congressmen are not subject to
impeachment, not being regarded as 'civil officers' of the United
G
States. The constitution does not provide, however, that each
House may expel its members by a two third vote, or punish them
for 'disorderly behaviour'. Congress is the sole judge of the
reasons for expulsion. The offence need not be indicatable. In
1797 the Senate expelled William Blount for conduct which was not H
546 SUPREME COURT REPORTS [2007] l S.C.R.
A performed in his official capacity not during a session of the Senate
nor at the seat of government. The Supreme Court has recorded
in a dictum in understanding that the expulsion power 'extends to
all cases where the offence i; such as in the judgment of the Senate
is inconsistent with the trust and duty of a member".
· (emphasis supplied)
B
25. In 'American Jurisprudence', (Second Edn., Vol. 77, p. 21); it has
been stated;
"The power of either House of Congress to punish or expel
c its members for cause is recognized in the Constitution which
provides that each House may punish its members for disorderly
behaviour, and, with the concurrence of two-thirds, expel a member.
Punishment for misbehaviour may in a proper case be by
imprisonment and may be imposed for failure to observe a rule for
preservation of order. In the case of the Senate, the right to expel
D extends to all cases where the offence is such as in the judgment
of the body is inconsistent with the trust and duty of a member
(Chapman Re, (1896) 166 US 661 : 41LEdl154)".
26. Attention of the Court was also invited to certain decisions of the
E Supreme Court of the United States. In Chapman, Re, l 66 US 661 ( l 891) :
4 l L Ed 2nd 1154, the Supreme Court before more than a century, recognized
the power of the Senate to expel a member where an act of the Member was
such as in the judgment of the Senate was inconsistent with the 'trust and
duty' ofa member. Reference was made to William Blount, who was expelled
from the Senate in July, 1797, for 'a high misdemeanor entirely inconsistent Y-•
F with his public trust and duty as a senator.' It was also stated that in July,
1861, during civil war, fourteen Senators and three Representatives were
expelled.
27. In Julian Bond v. James Sloppy Floyd, 385 US 116 (1966): 17 L
G Ed 2nd 235, Willium Bond, a Negro, duly elected representative was excluded
from membership because he attacked policy of Federal Government in
Vietnam. The US Supreme Court held that Bond had right to express free
opinion under the first amendment and his exclusion was bad in Jaw.
28. In Powell v. McCormack, 395 US 486 (1969) : 23 L Ed 2nd 491, the
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 547
applicant was held entitled to declaratory judgment that action of exclusion A
of a member of a House was unlawful. The allegation against the applicant
was that he deceived the House Authorities in connection with travel
expenses and made certain illegal payments to his wife. Referring to Wilkes
and the Law in England, the Court observed that "unquestionably, Congress
has an interest in preserving its institutional integrity, but in most cases that
interest can be sufficiently safeguarded by the exercise of its power to B
punish its members for disorderly behaviour and in extreme cases, to expel
a member with the concurrence of two-thirds."
29. In H. Snowden Marshall v. Robert B. Gordon, 243 US 521 (1917),
a Member of the House of Representatives levelled serious charges against C
District Attorney of the Southern District of New York with many acts of
misfeasance and nonfeasance. The Select Committee submitted a report
holding him guilty of contempt of the House of Representatives of the
United States because he violated its privileges, its honor and its dignity.
30. Dealing with the case and referring to Kie/ley v. Carson, [1842] 4 D
MOO PC 63 : 13 ER 225, the Court observed that when an act is of such
a character as to subject it to be dealt with as a contempt under the implied
authority, Congress has jurisdiction to act on the subject. Necessarily
results from that the power to determine in the use of legitimate and fair
discretion how far from the nature and character of the act there is necessity
for repression to prevent immediate recurrence, that is to say, the continued E
existence of the interference or obstruction to the exercise of the legislative
power. Unless there is manifest and absolute disregard of discretion and a
mere exertion of arbitrary power coming within the reach of constitutional
limitations, the exercise of the authority is not subject to judicial interference.
F
31. I may also refer to a leading decision in United States v. Daniel
Brewster, 408 US 501 : (1972) 33 L Ed 2nd 507. Keeping in view ground
reality that privileges conferred on Members of Parliament are likely to be
abused, Burger, CJ stated;
"The authors of our Constitution were well aware of the G
history of both the need for the privilege and the abuses that could
flow from too sweeping safeguards. In order to preserve other
values, they wrote the privilege so that it tolerates and protects
behaviour on the part of the Members not tolerated and protected
when done by other citizens, but the shield does not extend
H
548 SUPREME COURT REPORTS [2007] I S.C.R.
A beyond what is necessary to preserve the integrity of the legislative
process".
(emphasis supplied)
32. From the above cases, it is clear that in the United States, the
House possesses the power of observance of discipline by its members and
B in appropriate cases, such power extends to expulsion. It is also clear that
such power has been actually exercised for disorderly behavior in the House
as also outside the House, where the House was satisfied that the member
was 'unfit' physically, mentally or morally even if such conduct could not
be a 'statutable offence' or was not committed by him in his official capacity
C or during House in Session or at the seat of Government.
AUSTRALIAN LAW
33. The provisions relating Parliamentary privileges under the
Constitution of Australia were similar to our Constitution. Section 49
D declared powers, privileges and immunities of the Senate and of the House
of Representatives and its Members. It was as follows;
"The powers, privileges, and immunities of the Senate and of the
House of Representatives, and of the Members and the Committees
of each House, shall be such as are declared by the Parliament, and
E until declared shall be those of the Commons House of Parliament
of the United Kingdom, and of its members and committees, at the
establishment of the Commonwealth. "
(emphasis supplied)
34. Enid Campbell in his book 'Parliamentary Privilege in Australia',
F dealing with 'Expulsion', states;
"At common law, the House of Commons is recognized to
have power to expel a member for misconduct unfitting him for
membership even where that misconduct is not such as to disqualify
him from parliamentary office. There is no doubt that those
G Australian Houses of Parliament invested by statute with the
powers and privileges of the House of Commons enjoy the same
power, but the position with regard to other Houses is not so clear.
At common law, Colonial Legislatures do not possess punitive
powers, though there is dictum in Barton v. Taylor to the effect
H that they do have power to expel for aggravated or persistent
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 549
misconduct on the ground that this may be necessary for the self A
protection of the legislature. Where a member is expelled, his seat
thereupon becomes vacant. He is not, however, disqualified from
being again elected and returned to parliament".
35. Discussing powers of Colonial Assemblies, the learned author
states that though such Assemblies do not possess 'punitive' powers, it is B
inconceivable that they cannot make rules for the orderly conduct of
business. Even if they have no authority to expel a member in absence of
specific provision to that effect, they may suspend disorderly members in
appropriate cases.
, "The dignity of a Colonial Parliament acting within its C
limits, requires no less than that of the Imperial Parliament that
any tribunal to whose examination its proceedings are sought to be
submitted for review should hesitate before it undertakes the
function of examining its administration of the law relating to its
internal affairs". (emphasis supplied) D
36. It may also be stated that Odger in his 'Australian Senate
Practice', (I Ith Edn.; p. 57) observes;
"The recommendation, and the consequent provision in section
8 of the 1987 Act, was oppo5ed in the Senate. It was argued that
there may well be circumstances in which it is legitimate for a House
E
to expel a member even if the member is not disqualified. It is not
'·-
difficult to think of possible examples. A member newly elected
may, perhaps after a quarrel with the member's party, embark upon
highly disruptive behaviour in the House, such that the House is
forced to suspend the member for long periods, perhaps for the F
bulk of the member's term. This would mean that a place in the
House would be effectively vacate, but the House would be
powerless to fill it. Other circumstances may readily be postulated.
... The House, however, denied themselves the protection of expulsion" .
\
37. Lumb and Ryan ('The Constitution of the Commonwealth of G
Australia'; 1974 Edh.) stated that each House of the Federal Parliament has
the right to suspend a member for disorderly conduct. The power is
exercised to punish persistent interjectors or for refusal to withdraw an
offensive remark. "Jn extreme cases a member may be expelled".
(emphasis supplied) H
550 SUPREME COURT REPORTS [2007] 1 S.C.R.
A 38. In 1920, Hugh Mahon, Federal Member of Kalgoorlie was expelled
from the House of Representatives for making a 'blistering' public speech
against British Rule in Ireland.
39. It is no doubt true that pursuant to the report of the Joint Select
Committee on Parliamentary Privilege ( 1984), a specific Act has been enacted,
B known as the Parliamentary Privileges Act, 1987 (Act 21 of 1987). Section
8 of the said Act expressly bars a House to expel any of its members. It
reads:
"A House does not have power to expel a member from membership
of a House".
c
40. It is, therefore, clear that only recently, the power to expel a member '
from the House has been taken away by a specific statute.
CANADIAN LAW
D 41. The legal position under the Constitution of Canada is different to
some extent. Section 18 of the Constitution of the Dominion of Canada, 1867
states;
"The privileges, immunities, and powers to be held, enjoyed,
E and exercised by the Senate and by the House of Commons, and
by the members thereofrespectively, shall be such as are from time
to time defined by Act of the Parliament of Canada, but so that any
Act of the Parliament of Canada defining such privileges,
immunities, and powers shall not confer any privileges, immunities,
or powers exceeding those. at the passing of such Act held,
F enjoyed, and exercised by the Commons House of Parliament of
the United Kingdom of Great Britain and Ireland, and by the
members thereof"
(emphasis supplied)
42. It is thus clear that unlike India, in Canada, the Legislature could
G
not enlarge its privileges by enacting a law investing in it the privileges
enjoyed by British Parliament. There is no such limitation under Section 49
of the Australian Constitution nor under Article 105(3) or Article 194(3) of
the Indian Constitution.
H 4 3. In spite of the above provision in the Constitution, the right of the
~
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.) 551
-
....._ House to expel a member has never been challenged. Sir John George
Bourinot, in his work 'Parliamentary Procedure and Practice in the
Dominion of Canada', (4th Edn., p.64), states;
A
"The right of a legislative body to suspend or expel a member
for what is sufficient cause in its own judgment is undoubted. Such
a power is absolutely necessary to the conservation of the dignity B
and usefulness of a body. Yet expulsion, though it vacates the seat
of a member, does not create any disability to serve again in
Parliament".
44. The learned counsel for the parties also drew our attention to
certain cases from Canada. We may notice only few recent decisions.
c
~
' 45. In Speaker of the House of Assembly v. Canadian Broadcasting
Corporation, [1993] 1 SCR 319, the Broadcasting Corporation made an
application to the Nova Scotia Supreme Court, Trial Division for an order
allowing it "to film the proceedings of the House of Assembly with its own D
cameras". The application was based on the Canadian Charter of Rights and
Freedoms which guaranteed freedom of expression and freedom of press.
~
The Corporation claimed that it was possible to film the proceedings from
\i
the public gallery with modem equipments. The Speaker, however, declined
permission on the ground that Corporation's proposal would interfere with
"the decorum and orderly proceedings of the House". The Trial Judge E
granted the claim which was upheld in appeal. The Speaker approached the
Supreme Court.
46. One of the questions raised before the Supreme Court was as to
whether the House could exercise privilege by refusing access to the media.
_.,. F
Lamer, CJ discussed the doctrine of privilege in detail in the light of the
•I doctrine of necessity. Referring to Stockdale v. Hansard, (1839) 9 Ad & E
1 : 112 ER 1112 (QB), he stated that parliamentary privilege and immunity are
founded upon necessity. 'Parliamentary privileges' and the breadth of
individual privileges encompassed by that term were accorded to members
---,' of the Houses of Parliament and the Legislative Assemblies because they G
were considered necessary for the discharge of their legislative functions.
-
47. Mc Lachlin, J. (as she then was) agreed with the learned Chief
Justice and observed that Canadian legislative Assemblies could claim as
·············-(
"""" inherent privileges those rights which were necessary to their 'capacity to
H
552 SUPREME COURT REPORTS [2007] I S.C.R.
A function as legislative bodies'. Necessity was thus the test. Referring to _.=j
Kielley v. Carson, (1842), 4 MOO PC 63 : 13 ER 225, it was observed that ...
though the Privy Council held that a Colonial Assembly had no power to
commit for a contempt like House of Commons of the United Kingdom, it
did not dispute that such powers "as are necessary to the existence of such
body and the proper exercise of the functions which it is intended to
B execute" were bestowed with the very establishment of the Newfoundland
Assembly.
48. The Court also considered the ambit and scope of judicial review
and exercise of parliamentary privilege. Referring to Sir Erskine May that
c "after some three and a half centuries, the boundary between the competence
of the law courts and the jurisdiction of either House in matters of privilege
is still not entirely determined", the Court observed that originally the
Houses of Parliament took the position that they were the exclusive judges
of their privileges. They claimed to be 'absolute arbiters' in respect of
parliamentary privileges and took the stand that their decisions were not
D reviewable by any other Court or Authority. The Courts, on the other hand,
treated lex parliamentis to be part of the 'law of the land' and as such,
within their judicial control. Judiciary exercised the power particularly when
issues involved the rights of third party. According to Courts, their role was
to interpret the law of Parliament and to apply it.
E 49. Holding the test of 'necessity' for privilege as 'jurisdictional test',
the learned Judge stated; "The test of necessity is not applied as a standard
for judging the content of a claimed privilege, but for the purpose of
determining the necessary sphere of exclusive or absolute 'parliamentary' or
'legislative' jurisdiction. If a matter falls within this necessary sphere of
F matters without which the dignity and efficiency of the House cannot be
upheld, courts will not inquire into questions concerning such privilege.
All such questions will inst_ead fall to the exclusive jurisdiction of the
legislative body.
(emphasis supplied)
G 50. Keeping in view important roles of different branches of Government,
it was observed;
"Our democratic' government consists of several branches:
the Crown, as represented by the Governor General and the
provincial counterparts of that office; the legislative body; the
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 553
"'"-+- executive; and the courts. It is fundamental to the working of A
government as a whole that all these parts play their proper role.
It is equally fundamental that no one of them overstep its bounds,
that each show proper deference for the legitimate sphere of
activity of the other".
51. Reference was also made to Fred Harvey v. Attorney General for B
New Brunswick, [1996] 2 SCR 876. In that case, a Member of provincial
' _..., Legislature was convicted of illegal practice and was expelled from legislature
pursuant to provincial elections legislation. The allegation proved against
him was that he had induced a 16-year old female to vote in the election,
knowing fully well that she was not eligible to vote. He was also disqualified
for a period of five years from contesting any election. The Court of Appeal
c
dismissed the appeal of the appellant. The aggrieved Member approached
the Supreme Court.
52. Dismissing the appeal and upholding the order of the Court of
Appeal, the Supreme Court held that there was no question that the
D
appellant's actions amounted to an attack on the integrity of the electoral
°'+- process which was at the heart of a free and democratic society and
constituted a breach of trust deserving of censure.
53. Dealing with Parliamentary privileges and jurisdiction of Courts,
Mc Lachlin, J. stated: E
"If democracies are to survive, they must insist upon the
integrity of those who seek and hold public office. They cannot
tolerate corrupt practices within the legislature. Nor can they
tolerate electoral fraud. If they do, two consequences are apt to
-~ result. First, the functioning of the legislature may be impaired. F
Second, public confidence in the legislature and the government
may be undermined. No democracy can afford either.
When faced with behaviour that undermines their fundamental
integrity, legislatures are required to act. That action may range
from discipline for minor irregularities to expulsion and G
disqualification for more serious violations. Expulsion and
disqualification assure the public that those who have corruptly
-"• taken or abused office are removed. The legislative process is
purged and the legislature, now restored, may discharge its duties
as it should " (emphasis supplied) H
554 SUPREME COURT REPORTS [2007] l S.C.R.
A 54. It was, however, added that it was not to say that the courts have
no role to play in the debate which arises where individual rights are alleged
to conflict with parliamentary privilege. Under the British system of
parliamentary supremacy, the courts arguably play no role in monitoring the
exercise of parliamentary privilege. In Canada, that has been altered by the
Charter of 1926. To prevent abuses cloaked in the guise of privilege from
B trumping legitimate Charter interests, the courts must inquire into the
legitimacy of a claim of parliamentary privilege. As clarified in Canadian
Broadcasting Corporation, the courts may question whether a claimed
privilege exists. This screening role means that where it is alleged that a
person has been expelled or disqualified on invalid grounds, the courts must
c If the court concludes that it does, no further review lies.
determine whether the act falls within the scope of parliamentary privilege.
(emphasis supplied)
55. It was also stated that British Jurisprudence makes distinction
between privileges asserted by resolution and privileges effected automatically
D by statute. In respect of privileges asserted by resolution, British Courts
have developed a doctrine of necessity, enabling them to inquire whether
the action taken by resolution is necessary to the proper functioning of the
House. The 'necessity inquiry' does not ask whether the particular action
at issue was necessary, and hence does not involve substantive judicial
E review. It rather asks whether the dignity, integrity and efficiency of the
legislative body could be maintained if it were not permitted to carry out the
type of action sought to be taken, for example to expel a member from the
Legislature or disqualify a person from seeking office on ground of corruption.
56. A question was raised a!"> to whether Parliament could expel any of
F its members. Upholding such right, the Court stated;
"The power of Parliament to expel a member is undoubted. This
power has been repeatedly exercised by the English and Colonial
Parliaments, either when members have been guilty of a positive
crime, or have offended against the laws and regulations of the
G House, or have been guilty of fraudulent or other discreditable acts,
which proved that they were unfit to exercise the trust which their
constituents had reposed in them, and that they ought not to
continue to associate with the other members of the legislature. ...
Expulsion may be justified on two grounds: to enforce discipline
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA (C.K. THAKKER, l] 555
within the House; and to remove those whose behaviour has made A
them unfit to remain as members.
xxxx xx xx xxxx
The right of expulsion on these two grounds - discipline and unfit
behaviour - is a matter of parliamentary privilege and is not B
.
,
subject to judicial review".
(emphasis supplied)
The Court concluded;
"This protection is now accepted, in Canada as in Britain, as a c
fundamental ten~t of parliamentary privilege. The point is not that
the legislature is always right. The point is rather that the legislature
is in at least as good a position as the courts, and often in a better
position, to decide what it requires to function effectively. In these
circumstances, a dispute in the courts about the propriety of the D
legislative body's decision, with the delays and uncertainties that
such disputes inevitably impose on the conduct of legislative
business, is unjustified".
57. Very recently, in House ofCommons v. Satnam Vaid, [2005] 1 SCR
E
667, a chauffeur of a Speaker in spite of an order in his favour, was not
reinstated in service. He made a complaint to the Canadian Human Rights
Commission to investigate into the matter. The Commission accepted the
complaint of the employee and referred the matter to the Tribunal. The
Speaker challenged the jurisdiction of the Tribunal contending that it was
his power of 'hire and fire' and there was no review. The Tribunal dismissed F
the challenge. The Federal Court upheld the Tribunal's decision. When the
matter reached the Supreme Court, the question as to applicability of
privileges was raised. It was held that within categories of privilege,
Parliament was the sole judge of the occasion and manner of its exercise and
such exercise was not reviewable by the courts. However, the existence and G
scope of the privileges could be inquired into by courts.
58. Binnie J. stated; "It is a wise principle that the courts and Parliament
strive to respect each other's role in the conduct of public affairs. Parliament,
for its part, refrains from commenting on matters before the courts under the H
556 SUPREME COURT REPORTS (2007] I S.C.R.
A sub Judice rule. The courts, for their part, are careful not to, interfere with
the workings of Parliament. None of the parties to this proceeding questions
the pre-eminent importance of the House of Commons as 'the grand inquest
of the nation'. Nor is doubt thrown by any party on the need for its
legislative activities to proceed unimpeded by any external body or institution,
including the courts. It would be intolerable, for example, if a member of the
B House of Commons who was overlooked by the Speaker at question period
could invoke the investigatory powers of the Canadian Human Rights
Commission with a complaint that the Speaker's choice of another member
of the House discriminated on some ground prohibited by the Canadian
Human Rights Act, or to seek a ruling from the ordinary courts that the
c Speaker's choice violated the member's guarantee of free speech under the
Charter. These are truly matters 'internal to the House' to be resolved by
its own procedures. Quite apart from the potential interference by outsiders
in the direction of the House, such external intervention would inevitably
create delays, disruption, uncertainties and costs which would hold up the
nation's business and on that account would be unacceptable even if, in the
D end, the Speaker's rulings were vindicated 1 as entirely proper".
59. Emphasising on resolution of conflict between Parliament and __,,..,
Courts in respect of 'legitimate sphere of activity, of the. other', the Court
observed;
E "Our democratic, government consists. of several branc~es: the
Crown, as represented by the Governor General and the provincial
counterparts of ~at office; the legislative body; the executive; and
the courts. It is fundamental to the working of government as a
whole t:pat all these parts play their proper role. It is equally
F fundamental that no one of thetp overstep its bounds, that each
show proper deference for the legitimate sphere of activity of the
other".
ENGLISH LAW
G 60. English Constitution was neither· established by any single action
nor on any particular day. It has grown· from the political institutions. of
people who respected monarchy but equally insisted for democracy and
parliamentary institution. The origins. of parliamentary privileges, are thus
inextricably interwined with the history of Parliament in· England; and more
H specifically, the battle between English· Monarch and Parliament; between
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 557
the House of Commons and House of Lords as also between Parliament and A
Courts.
61. Parliament emerged in the thirteenth century. English legal history
traces its roots in Magna Carta. Magna Carta had been described as a
'constitutional myth' because it was a document which came into existence
on account of grievances of feudal magnates (barons) (Ann Lyon :
B
'Constitutional history of the United Kingdom, (2003); p.39). The Magna
Carta declared that the King was not above the law.
62. 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 c
evolution of English Parliamentary institution has thus historical development.
It is the story of conflict between Crown's absolute prerogatives and
Commons' insistence for powers, privileges and immunities; struggle between
high handed actions of Monarchs and People's claim of democratic means
and methods. Parliamentary privileges are the rights which Houses of
Parliament and members possess so as to enable them to carry out their
D
functions effectively and efficiently. Some of the parliamentary privileges
thus preceded Parliament itself. They are, therefore, rightly described by Sir
Erskine May as 'fundamental rights' of the House as against the prerogatives
of the Crown, the authority of ordinary Courts of Law and the special rights
of the House of Lords. E
63. Initially, the House simply claimed privilege. They neither made
request to the Crown for their recognition nor to Courts for their enforcement.
Parliamentary privileges in that sense are outside the law, or a law unto
themselves. For instance, the House would not go to Crown or to Court for
F
release of its member illegally detained. It would also not pray for a writ of
habeas corpus. It would simply command the Sergeant-at-Arms with the
ceremonial mace to the prison and get the Member released on its own
authority.
64. As Holdsworth ('A History ofEnglish Law', Second Edition; pp.92- G
93), stated; "It was the privilege of the House which enabled it to act freely,
to carry on the controversy with the King in a Parliamentary way, and thus
.'" to secure a continuous development of constitutional principles. It is,
therefore, not surprising to find that the earliest controversies between
James I and his Parliaments turned upon questions of privilege, and that H
558 SUPREME COURT REPORTS [2007] l S.C.R.
A these same questions were always in the forefront of the constitutional
controversies all through this period". He also added that Parliament
asserted and used its privileges to win for itself the position of a partner with
the King in the work of governing the State.
65. Sir Edward Coke was in favour of'High Court of Parliament' having
B its Jaw and was of the view that the matters decided in Parliament were not
part of Common Law. He observed that it was not for a Judge to judge any
law, custom or privilege of Parliament. The laws, customs, liberties and
privileges of Parliament are better understood by precedents and experience
than can be expressed by a pen.
c As Lord Tennyson stated;
"A land of settled government,
A land of just and old renown,
Where Freedom slowly broadens down,
D From precedent to precedent."
66. Let us consider the view points of learned authors, jurists and
academicians on this aspect.
67. In Halsbury 's Laws of England, (Fourth Edn.; Reissue: Vol. 34; p.
E 569; para 1026); it has been stated;
"House of Commons' power of expulsion.
Although the House of Commons has delegated its right to be
the judge in controverted elections, it retains its right to decide
F upon the qualifications of any of its members to sit and vote in
Parliament.
If in the opinion of the House a member has conducted
himself in a manner which renders him unfit to serve as a member
of Parliament, he may be expelled, but unless the cause of his
G expulsion by the House constitutes in itself a disqualification to sit
and vote in the House, he remains capable of re-election."
(emphasis supplied)
68. From the above statement of law, it is explicitly clear that the two
H things, namely, (i) expulsion; and (ii) disqualification are different and
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 559
-. -+ distinct. A member can be expelled by the Legislature if his conduct renders
him 'unfit' to continue as such. It, however, does not ipso facto disqualify
him for re-election. An expelled member may be re-elected and no objection
can be raised against his re-election, as was the case of John Wilkes in 1769.
A
69. 0. Hood Phillips also states ('Constitutional and Administrative
Law', Fourth Edition; p. 180) that the House may also expel a member, who B
although not subject to any legal disability, is in its opinion unfit to serve
as a member. This is commonly done when the Court notifies the Speaker
that a member has been convicted of a misdemeanour. The House cannot
prevent an expelled member from being re-elected, as happened several times
in the case of John Wilkes between 1769 and 1794, but it can refuse to allow C
him to take seat.
70. Wade and Phillips also expressed the same opinion. In
'Constitutional Law', (7th Edition; p. 793); it was stated;
"The House of Commons cannot of course create D
disqualifications unrecognized by law but it may expel any member
who conducts himself in a manner unfit for membership".
71. Sir William Anson in "The Law and Custom of the Constitution",
(Fifth Edn; Vol. I; pp. 187-88) states;
E
"In the case of its own members, the House has a stronger
mode of expressing its displeasure. It can by resolution expel a
member, and order the Speaker to issue his warrant for a new writ
for the seat from which the member has been expelled. But it
--"1-
cannot prevent the re-election of such a member by declaring him F
incapable of sitting in that Parliament. In attempting to do this, in
the case of Wilkes, the House had ultimately to admit that it could
not create a disqualification unrecognized by law".
72. Griffith and Ryle in "Parliament, functions, practice and
procedures", (1989), at p. 85 stated; G
"The reconciliation of these two claims the need to maintain
parliamentary privileges and the desirability of not abusing them -
has been the hall-mark of the House of Commons treatment of
privilege issues in recent years".
H
SUPREME COURT REPORTS [2007] I S.C.R.
A 73. Dealing with the penal powers of the House, ·the learned authors ~-
..
proceeded to state: (pp. 91-92);
"Laws are meaningless unless there is power to enforce them
by imposing penalties on those who wreak them. The House does
not rely on the courts but has its own penal jurisdiction.
B
The severest and historically most important power is that of
commitment .....
Two other punishments can be ordered for Members who
offend the House namely expulsion, or suspension from the
c service of the House for a specified period or until the end of the
session.
Expulsion is the ultimate sanction against a Member. It is
an outstanding demonstration of the House's power to regulate its
D own proceedings, even its composition. The expulsion of a
Member cannot be challenged."
(emphasis supplied) +
74. Consideration of powers, privileges and immunities of the British
Parliament would not be complete if one does not refer to relevant statements
E and propositions oflaw by Sir Erskine May in his celebrated and monumental
work titled 'Treatise on the Law, Privileges, Proceedings and Usage of
Parliament'. "This work has assumed the status of a classic on the subject
and is usually regarded as an authoritative exposition of parliamentary
practice".
F 75. The attention of the Court was, however, invited to the changed ~--
approach by the Revising Authors on the power of Parliament to expel a
member. It would, therefore, be appropriate if I refer to both the editions of
1983 and of2004.
G 76. In Twentieth Edition by Sir Charles Gordon (1983), in Chapter 9
(Penal Jurisdiction of the Houses of Parliament), it had been stated;
"PUNISHMENT INFLICTED ON MEMBERS
In the case of contempts committed against the House of
H Commons by Members, two other penalties are available, viz.
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 561
suspension from the service of the House and expulsion. In some A
cases expulsion has been inflicted in addition to committal.
There was a sub-topic as under;
Expulsion by the Commons
B
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. c
77. In Twenty-third Edition by Sir William McKay (2004), Chapter
9 titles (Penal jurisdiction ofBoth Houses). The relevant discussion
reads thus;
PUNISHMENT OF MEMBERS
D
In the case of contempts committed against the House of
Commons by Members, or where the House considers that a
Member's conduct ought to attract some sanction (see pp. 132-33),
two other penalties are available in addition to those already E
mentioned: suspension from the service of the House, and expulsion,
sometimes in addition to committal.
Under sub-topic 'Expulsion', it was stated;
EXPULSION F
··-~
The expulsion by the House of Commons of one of its
Members may be regarded as an example of the House's power to
regulate its own constitution, though it is, for convenience, treated
here as one of the methods of punishment at the disposal of the
House. Members have been expelled for a wide variety of causes." G
78. On the basis of above, it was submitted by the learned counsel for
. the petitioners that the power of expulsion by Parliament as an independent
punishment has not been recognized by May. It has now remained as part
of power to regulate its own constitution. Since no such power has been H
562 SUPREME COURT REPORTS [2007] 1 S.C.R
A possessed by Indian Parliament, it cannot expel any member.
79. I must frankly admit that I am unable to agree with the learned
counsel. The Revising Author refers to punishment of members and in no
uncertain terms states that if the House considers conduct (misconduct) of
a Member objectionable attracting sanction, appropriate punishment can be
B imposed on him. Over and above other penalties, 'expulsion' has been
specifically and expressly mentioned therein. As will be seen later on in this
judgment, the Framers of our Constitution have also reserved this right with .~
the Parliament/State Legislature. The above argument of the petitioners, in
my opinion, therefore, does not carry the case further.
c
ILLUSTRATIVE CASES
80. Though several cases have been cited by the learned counsel for
both the sides in support of their contentions and submissions, I will refer
to the cases which related to expulsion of membership of Parliament.
D
81. Probably, the earliest case was of Mr. Hall. In 1580, Mr. Hall, a
Member of House of Commons published a book containing derogatory
remarks against the Members of the House. On the basis of a complaint, the
matter was referred to the Privilege Committee which found him guilty. In
E spite of apology tendered by him, he was committed to the Tower of London
for six months, was fined and also expelled.
82. In a subsequent case in 1707, Mr. Asquill, a Member of Parliament
wrote a book wherein disparaging remarks on Christian Religion were made.
Though nothing was stated by him against the House or against Members
F of the House, Mr. Asquill was expelled being 'unfit' as Member.
83. Asquill thus established that the House of Commons could expel
a Member for his actions even outside the House provided the House finds
him unfit to be continued as a Member of Parliament.
G
84. In 1819, Mr. Hobhouse, a Member of House of Commons wrote a
pamphlet making the following comment;
"Nothing but brute force, or the pressing fear
of it would reform Parliament".
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 563
85. Contempt proceedings were initiated against Hobhouse and he was A
imprisoned.
86. In 1838, Mr. O'Connell, a member of House of Commons said,
outside the house of Parliament;
"Foul perjury in the Torry Committees of the House of Commons- B
who took oaths according to Justice but voted for Party. "
87. He was reprimanded. Mr. Sandham was likewise admonished in
1930 for levelling allegations against the Members of the House.
88. Special reference was made to Bradlough v. Gossett, (1884) 12 QBD
c
275. In that case, B, duly elected Member of Borough was refused by the
Speaker to administer oath and was excluded from the House. B challenged
the action.
89. It was held that the matter related to the internal management of D
the House of Commons and the Court had no power to interfere.
Lord Coleridge, C.J. stated;·
What is said or done within the walls of Parliament cannot be
inquired into in a court of law ... The jurisdiction of the Houses over E
their own Members, their right to impose discipline within their
walls, is absolute and exclusive. To use the words of Lord
Ellenborough, "They would sink into utter contempt and efficiency
without it". (Burdett v. Abbot, 14 East 148, 152).
F
90. Dealing with the contention that the House exceeded its legal
process in not allowing B to take oath which he had right to take, the learned
Chief Justice said; "If injustice has been done, it is injustice for which the
courts oflaw afford no remedy." An appeal should not be made to the Court
but to the constituencies.
G
91. As observed by His Lordship in Stockdale v. Hansard, (1839) 9 Ad
& E 1 : 112 ER 1112 (QB), "the House should have exclusive jurisdiction to
regulate the course of its own proceedings, and animadvert upon any
conduct there in violation of its rules or derogation from its dignity, stands
upon the clearest grounds of necessity." H
564 SUPREME COURT REPORTS [2007] 1 S.C.R
A 92. Stephen, J. was much more specific and emphatic. He. said;
'The legal question which this statement of the case appears
to me to raise for our decision is this: - Suppose that the House
of Commons forbids one of its members to do that which an Act
of Parliament requires him to do, and, in order to enforce its
B prohibition, directs its executive officer to exclude him from the
House by force if necessary, is such an order one which we can
declare to be void and restrain the executive officer of the House
from carrying cut? In my opinion, we have no such power. I think
that the House of Commons is not subject to the control of Her
C Majesty's Courts in its administration of the control of Her
Majesty's €ourts in its administration of that part of the statute-
law which has relation to its own internal proceedings, and that the
use of such actual force as may be necessary to carry into effect
such a resolution as the one before us is justifiable".
D 93. It was further stated; "It seems to follow that the House of
Commons has the exclusive power of interpreting the statute, so far as the
regulation of its own proceedings within its own walls is concerned; and
that, even if that interpretation should be erroneous, this Court has no
power to interfere with it directly or indirectly".
E
His Lordship concluded;
"In my opinion the House stands with relation to such rights
and to the resolutions which affect their exercise, in precisely the
same relation as we the judges of this Court stand in to the laws
F which regulate the rights of which we are the guardians, and to the
judgments which apply them to particular cases; that is to say, they
are bound by the most solemn obligations which can bind men to
any course of conduct whatever, to guide their conduct by the law
as they understand it. If they misunderstand it, or (I apologize for
G the supposition) willfully disregard it, they resemble mistaken or
unjust judges; but in either case, there is in my judgment no appeal
from their decision. The law of the land gives no such appeal; no
precedent has been or can be produced in which any Court has
ever interfered with the internal affairs of either House of Parliament,
though the cases are no doubt numerous in which the Courts have
H
·-
i
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 565
declared the limits of their powers outside of their respective A
-\.
Houses. This is enough to justify the conclusion at which I arrive".
94. One may not agree with the wider observations of Stephen, J.
particularly in the light of written Constitution and power of Judicial Review
conferred on this Court which has been held to be 'basic feature' of our
Constitution. But it certainly indicates approach of judiciary while dealing B
with powers, privileges and rights of Parliament over its members.
- "' 95. I may also refer to a case which is very much relevant and was
referable to a point in time our Constitution was about to commence.
96. One Garry Allingham, a Member of Parliament got published an
c
article on April 3, 1947 (before few months oflndependence oflndia) making
derogatory remarks against members of the House. A complaint was made
to the House of Commons. Allingham was called upon to explain his
conduct by the House. Allingham offered regrets for unfounded imputations
against Members and tendered unconditional apology and said; D
-... .,.,,
. "I have humbly acknowledged my mistake, and nothing could
be more sincere and heart-felt than my remorse for my action.
Having done all that it is humanly possible to do to put this deeply
regretted affair straight, I am content to submit myself to this
House, confident that it will act in its traditional spirit of justice and E
generosity".
97. After the close of Allingham's speech a resolution was proposed
holding him guilty of gross contempt of the House and to 'proceed with
,.. utmost severity against such offender'. A motion was moved to suspend
~'r
F
Allingham from service of the House for six months and to deprive him of
salary. for that period. But an amendment to the motion was sought to the
effect that Allingham be expelled from the House and finally the amended
resolution was passed by the House.
98. Allingham thus clearly established that on the eve of British Empire G
in this country and on the dawn of Independence of India, one of the
powers and privileges enjoyed by British Parliament was power of expulsion
- of a member from Parliament.
99. Finally, I may refer to a post-Constitution case of Mr. Peter Arthus
H
-t
566 SUPREME COURT REPORTS (2007] I S.C.R.
A David Baker (1954). He was a Member of House of Commons. A competent ,l-'-
Court of Law held him guilty of forgery and convicted and sentenced him.
The factum of conviction was officially communicated by the Court to the
Speaker of the House. Baker, in his letter to the Speaker of the House,
expressed remorse about his conduct which was not connected with his
position and status as a member of the House.
B
He, inter alia, stated;
"I must end as I began, by begging the House to accept my
most sincere apology. I can only assure you that my regret,
remorse and repentance during the past three months were doubted
by the knowledge that, in addition to my friends and colleagues
elsewhere, I had also embarrassed my friends and colleagues in the
House of Commons. I can only ask you and, through you, them
to accept this expression of these regrets."
D 100. The entire letter was read out to the House. After consideration,
the following resolution was passed;
"Resolved, that Mr. Peter Arthus David Baker be expelled from
this House. "
E l 01. Baker proved that the House of Commons possessed and
continued to possess power to expel a Member for his objectionable activity
not only in the House in his capacity as a Member as such but also outside
the House if it is found to be otherwise improper, or tarnishing the image
of the House in public eye or making him 'unfit' to continue to be a Member
F of an august body.
102. [This case is also relevant inasmuch as the Constitution (Forty-
fourth Amendment) Act, 1978 by which Article 105(3) has been amended,
lays down that whenever a question of powers, privileges and immunities
of Parliament arises, it will be ascertained whether such power, privilege or
G immunity was available to the House of Commons on the day the Amendment
came into force, i.e. on June 20, 1979].
103. The petitioners strongly relied upon a decision of the Judicial
Committee of the Privy Council in Edward Keilley v. William Carson, (1842):
H 4 MOO PC 63 : 13 ER 225. K was a District Surgeon and Manager of Hospital
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 567
while C was a Member of Assembly of Newfoundland. C made certain A
..... adverse remarks in respect of Hospital Management by K. K threatened C
for criticizing the management and added; "Your privilege shall not protect
you". C complained to the House. The Committee of Privilege found K guilty
of the breach of privilege of the House and committed him to the goal.
104. K thereupon brought an action of trespass and false imprisonment B
against the defendants but failed. Before the Privy Council, one of the
-.....' questions was as to whether the Assembly of Newfoundland had power to
.... ""• commit for breach of privilege, as incident to the House as a legislative
body. According to K, the Assembly did not possess such power. Drawing
the distinction between (a) conquered colonies, and (b) settled colonies, it c
was urged that in the former, the power of the Crown was paramount, but
in the latter, the Colonists carried with them the· great Charter of Liberty
(Magna Carta) that "No man shall be imprisoned but by the lawful judgment
of his peers, or by the law of the land."
105. The Privy Council held that Newfoundland was a settled and not D
a conquered colony and the settlers carried with them such portion of its
'--..,.-- Common Law and Statute Law as was conferred and also the rights and
immunities of British subjects. The Judicial Committee held that the Crown
did not invest upon the Legislative Assembly of Newfoundland the power
to commit for its contempt. E
l 06. The Committee then proceeded to consider the question thus:
"The whole question then is reduced to this-whether by law,
the power of committing for a contempt, not in the presence of the
Assembly, is incidental to every local Legislature. F
_,,..
The Statute Law on this subject being silent, the Common Law
is to govern it; and what is the Common Law, depends upon
principle and precedent.
Their Lordships see no reason to think, that in the principle G
of the Common Law, any other powers are given to them, than such
as are necessary to the existence of such a body, and the proper
exercise c;>f the functions which it is intended to execute. These
......_ __ -'-
powers are granted by the very act of its establishment, an act
which on both sides, it is admitted, it was competent for the Crown
H
568 SUPREME COURT REPORTS [2007] I S.C.R.
A to perform. This is the principle which governs all legal incidents.
"Quando lex aliquid concedit, concedere videtur et illud, sine
qua res ipsa esse non potest. "* In conformity to this principle we
feel no doubt that such an Assembly has the right of protecting
itself from all impediments to the due course of its proceeding. To
the full extent of every measure which it may be really necessary
B to adopt, to secure the free exercise of their Legislative functions,
they are justified in acting by the principle of the Common Law. But I
the power of punishing any one for past misconduct as a contempt )--
of its authority, and adjudicating upon the fact of such contempt,
and the measure of punishment as a judicial body, irresponsible to
c the party accused, whatever the real facts may be, is of a very
different character, and by no means essentially necessary for the
)-
exercise of its functions by a local Legislature, whether representative j_
or not. All these functions may be well performed without this
rr-
extraordinary power, and with the aid of the ordinary tribunals to
investigate and punish contemptuous insults and interruptions.
D
These powers certainly do not exist in corporate or other
bodies, assembled, with authority, to make bye-laws for the
government of particular trades, or united numbers of individuals.
The functions of a Colonial Legislature are of a higher character, ,_
E and it is engaged in more important objects; but still there is no
reason why it should possess the power in question.
It is said, however, that this power belongs to the House of
Commons in England and this, it is contended, affords an authority
for holding that it belongs as a legal incident, by the Common Law,
F to an Assembly with analogous functions. But the reason why the
House of Commons has this power, is not because it is a Y - ~-
representative body with legislative functions, but by virtue of 1
ancient usage and prescription; the lex et consuetude Parliamenti,
which forms a part of the Common Law of the land, and according
to which the High Court of Parliament, before its division, and the
G
Houses of Lords and Commons since, are invested with many
peculiar privileges, that of punishing for contempt being one. And,
besides, this argument from analogy would prove too much, since
it would be equally available in favour of the assumption by the
H * When the law gives anything to anyone, all incidental things are also tacitly given.
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 569
Council of the Island, of the power of commitment exercised by the A
House of Lords, as well as in support of the right of impeachment
by the Assembly a claim for which there is not any colour of
foundation.
Nor can the power be said to be incident to the Legislative
Assembly by analogy to the English Courts of Record which B
possess it. This Assembly is no Court of Record, nor has it any
judicial functions whatever; and it is to be remarked that all these
bodies which possess the power of adjudication upon, and punishing
in a summary manner, contempts of their authority, have judicial
functions, and exercise this as incident to those which they possess,
except only the House of Commons, whose authority, in this
c
respect, rests upon ancient usage.
Their Lordships, therefore, are of opinion, that the principle
of the Common Law, that things necessary, pass as incident, does
not give the power contended for by the Respondents as an D
incident to, and included in, the grant of a subordinate
Legislature".
(emphasis supplied)
107. The Council, in the light of above legal position did not approve
the law laid down earlier in Beaumont v. Barrett, (1836) I MOO PC 80, (in E
which such right was upheld and it was ruled that Legislative Assembly of
Jamaica had inherent power to punish for contempt of the Assembly) and
overruled it.
108. It was submitted that distinguished jurists and eminent judges
considered the question in Keilley and concluded that Assembly of F
Newfoundland had no power to commit a person for contempt which was
exercised by the British Parliament. The ratio in Keilley applies with equal
force to Indian Parliament and it must be held that the position of our
Parliament is not different than that of Newsouthland and it also does not
possess such power claimed and exercised by British Parliament.
G
109. I am unable to agree with the learned counsel for the petitioners.
In my judgment, Keilley has no application inasmuch as it was decided in
the light of factual, political and legal background which was totally
different. For more than one reason, the ratio in Keil/ey cannot be pressed
in service in the case on hand. Firstly, India, after 1950, cannot be termed H
ii
570 SUPREME COURT REPORTS [2007] I S.C.R.
A as a 'colonial country' nor its Legislature Colonial or subordinate. Secondly, -\-""
..
it was not to derive powers, privileges or prerogatives from the Crown either '
expressly or impliedly. Thirdly, after January 26, 1950, it is the written
Constitution which has conferred powers, privileges and immunities on
Parliament/Legislatures and on their members. Fourthly, provisions of the
Constitution themselves expressly conferred certain powers, privileges and
B immunities [Arts. I 05(1 ), (2); 194 (1), (2)]. It also allowed Parliament to define
them by making an appropriate law and declared that until such law is
~
enacted, they would be such as exercised by British Parliament on January ~~
26, 1950 [Arts. 105(3), 194(3)]. Fifthly, the crucial question, in my opinion is
not the fact that the Assembly of Newsouthland had no right to commit a
c person for contempt but whether or not the British Parliament possessed
such power on January 26, 1950. Sixthly, Keil/ey was not a member of
Assembly and as such the ruling in that case has no direct bearing on the
issue raised b,efore this Court. Finally, Keilley was a case of committal of
a person to jail and keeping in view the fact situation, the Privy Council
decided the matter which is absent here. For all these reasons, in my
D
considered opinion, reliance on Keilley is of no assistance to the petitioners.
yf
110. In fact, in a subsequent case in Thomas William Doyle v. George
Charles Falconer, (1866) LR 1 PC 328, the distinction between power to
punish for contempt and power to take other steps had been noted by the
E Privy Council. It held that the Legislative Assembly of Dominica did not
have the power to punish for contempt as no such power was possessed
by a Colonial Assembly by analogy of lex et consuetude Parliamenti which
was inherent in Houses of Parliament in the United Kingdom as the High
Court of Parliament, or in a Court of Justice as a Court ofRecord. A Colonial
Assembly had no judicial functions.
F Y-
111. The Judicial Committee, however, after referring to Keilley and
other cases, proceeded to state;
"If then, the power assumed by the House of Assembly
G cannot be maintained by analogy to the privileges of the House of
Commons, or the powers of a Court of Record, is there any other
legal foundation upon which it may be rested. It has not, as both
sides admit, been expressly granted. The learned counsel for the "'·
Appellants invoked the principles of the Common Law, and as it
must be conceded that the Common Law sanctions the exercise of
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 571
the prerogative by which the Assembly has been created, the A
principles of Common Law, which is embodied in the maxim,
"Quando lex aliquid concedit, concedere videtur et illud, sine
qua res ipsa esse non potest, " applies to the body so created. The
question, therefore, is reduced to this : Is the power to punish and
commit for contempt for contempts committed in its presence one
necessary to the existence of such a body as the Assembly of B
Dominica, and the proper exercise of the functions which it is
intended to execute? It is necessary to distinguish between a
-"' power to punish for a contempt, which is a judicial power, and a
power to remove any obstruction offered to the deliberations or
proper action of a Legislative body during its sitting, which last
power is necessary for self-preservation. If a Member ofa Colonial
c
House of Assembly is guilty of disorderly conduct in the House
whilst sitting, Fze may be removed, or excluded for a time, or even
expelled; but there is a great difference between such powers and
the judicial power of inflicting a penal sentence for the offence.
The right to remove for self-security is one thing, the right to D
inflict punishment is another. The former is, in their Lordships'
judgment, all that is warranted by the legal maxim that has been
cited, but the latter is not its legitimate consequence. To the
question, therefore, on which this case depends, their Lordships
must answer in the negative."
(emphasis supplied)
E
(See also Broom's Legal Maxims, 10th Edn; p.314)
112. With respect, the above observations lay down correct proposition
of law.
F
113. Again, in Barton v. Taylor, (1886) 11 AC 197, the Privy Council,
approving Doyle drew a practical line between defensive action and punitive
action on the part of the Assembly to be taken against erring members, and
said; "Powers to suspend toties quoties, sitting after sitting, in case of
repeated offences (and, it may be, till submission or apology), and also to
expel for aggravated or persistent misconduct, appear to be sufficient to
G
meet even the extreme case of a member whose conduct is habitually
obstructive or disorderly."
-- 114. An interesting point of law, which has been raised before this
Court was also raised before the Supreme Court of New South Wales in H
572 SUPREME COURT REPORTS (2007) l S.C.R.
A Armstrong v. Budd, (1969) 71 SR 386 (NSW). Section 19 of the Constitution
Act, 1902 laid down that in certain circumstances, a seat in the Legislative
Council would automatically fall vacant. A was a member of Legislative
Council against whom a suit was filed. During the course of litigation, he
gave evidence. The evidence was disbelieved by the Court and in the
judgment, certain strictures were passed by the trial Judge. The Legislative
B Council, on the basis of comments and adverse observations, passed a
resolution and expelled A from the Council and declared his seat vacant. A
sought a declaration that the resolution was ultra vires.
115. It was contended by A that since his case was not covered by any
C of the eventualities enumerated in Section 19, he could not be disqualified.
The Court, however, negatived the contention. It observed that the case did
not fall in any of the clauses (a) to (t) of Section 19 of the Act but stated
that the said section did not constitute a 'complete code' for the vacation
of seat.
D Herron, C.J. stated:
"For there exist well-recognized overriding common-law
principles which enlarge parliamentary power. As applying to this
case the first or primary essentials may be stated thus: in the
absence of express grant the Legislative Council possesses such
E powers and privileges as are implied by reason of necessity, the
necessity which occasions the implication of a particular power or
privilege is such as is necessary to the existence of the Council or
to the due and orderly exercise of its functions."
F His Lordship further stated:
"This case appears to me to warrant a decision that in special
circumstances there is an area of misconduct of a Member of
Parliament committed outside the House and disclosed in curial
proceedings which may, in special circumstances, form a basis for
G the exercise of the power of expulsion based upon a finding by the
House that such is necessary to its existence or to the orderly
exercise of its important legislative functions. "
(emphasis supplied) \ -
116. Wallace, P. agreed with the learned Chief Justice and observed:
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.) 573
"... I am of the opinion that the Legislative Council has an A
implied power to expel a member if it adjudges him to have been
guilty of conduct unworthy of a member. The nature of this power
is that it is solely defensive-a power to preserve and safeguard
the dignity and honour of the Council and the power conduct and
exercise of its duties. The power extends to conduct outside the
Council provided the exercise of the power is solely and genuinely B
inspired by the said defensive objectives. The manner and the
occasion of the exercise of the power are for the decision of the
Counsel." (emphasis supplied)
117. Sugerman, J. in concurring opinion formulated the doctrine of C
necessity in an effective manner by making the following instructive
observations;
"This necessity compels not only the conceded power to
expulsion arising from disorderly conduct within the Chamber, but
also expulsion arising from conduct outside the chamber, which, in D
the opinion of the Council, renders a man unfit for service and
therefore one whose continued membership of the Council would
disable the Council from discharging its duty and protecting its
dignity in the sense mentioned. That the proper discharge of the
legislative function by the Council demands an orderly conduct of E
its business is undoubted. That it demands honesty and probity
of its members should be equally undoubted. Indeed, the need for
removal and replacement of a dishonest member may be more
imperative as a matter of self-preservation, than that of an unruly
member". (emphasis supplied)
F
118. Mr. Andhyarujina, Sr. Advocate appearing for Union of India
placed before this Court particulars of expulsion of members from the House
of Commons in the last three and half centuries. The particulars are as under:
Date Member and Reason G
Constituency
22nd John Ashburnham Accepted a bribe (£500 from
November (Sussex) merchants who wished to import
1667 French wines).
H
_,,
574 SUPREME COURT REPORTS (2007] 1 S.C.R.
21st April Hon. Henry Brouncker
:.,-'
A
1668 (New Romney)
Invented orders from the Duke of .....
York to down sail, which
prevented England capitalising on
its naval victory off Lowestoft in
1665.
B
1st Thomas Wancklyn Corrupt misuse of the privilege of
"!'--
February (Westbury) Parliament against arrest of MP's
1678 'menial servants'.
c 25th
1679
March Edward Sackville
(East Grinstead)
Denunciation of Titus Oates as a
'lying rogue' and disbelief in the
'Popish Plot'.
28th Sir Robert Cann, Bt. Statement that the attempt to
October (Bristol) exclude the Duke of York from the
D 1680 succession was a 'Presbyterian
Plot'. ...,..r
29th Sir Francis Wythens Presented a petition abhorring the
October (Westminster) summons of a Parliament which
1680 would exclude the Duke of York
E from the succession.
14th Sir Robert Peyton Association with the Duke of
December (Middlesex) York and alleged complicity in the
1680 'Meal-Tub Plot' (attempt to
F implicate exclusionists in a plot to Y-
kill the King and establish a
Commonwealth).
20th Sir Robert Sawyer Leading the prosecution of Sir
January (Cambridge University) Thomas Armstrong for treason in
G 1690 the Rye House Plot while
Attorney-General. Armstrong was
convicted, sentenced to death and
l -
eventually hanged, but his
conviction was later ruled a
H miscarriage of justice.
Y' ....,
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 575
-J--/..
.J 16th March Sir John Trevor Corruption (Speaker of the House A
1695 (Yarmouth, Isle of of Commons). Paid 1,000 guineas
Wight) from the Corporation of London
on passage of the Orphans Bill.
26th March John Hungerford Paid 20 guineas from the
1695 (Scarborough) Corporation for his conduct as B
_
_,, ...
---... Chairman of the Committee of the
Whole House on the Orphans
Bill.
1st Charles Duncombe Obliged to pay £10,000 to public
February (Downton) funds, Duncombe bought c
1698 Exchequer Bills at a 5% discount
and persuaded the seller (John da
Costa) to endorse them as though
they had been paid to him for
excise duty. This allowed him to
D
..... ..,.
pay them in at face value and
keep the discount himself.
1st John Knight Persuaded his brother William and
February (Weymouth and Reginald Marriott, a Treasury
1698 Melcombe Regis) Official, falsely to endorse £7 ,000 E
of Exchequer Bills as though they
were paid to settle tax payments
(this meant that the Bills,
circulated at a 10% discount,
_..-,, increased to their face value).
Tried to persuade Marriott to take F
the full blame.
10th James Isaacson Commissioner of Stamp Duty; this
February (Banbury) office was a disqualification under
1699 the Lottery Act of 1694.
G
13th Henry Comish Commissioner in the Stamp Office
February (Shaftesbury) managing Duties on Vellum, Paper
- 1699 and Parchment; this office was a
disqualification ~der the Lottery
Act of 1694.
H
~
-~
576 SUPREME COURT REPORTS [2007) I S.C.R.
~-"
A 14th Samuel Atkinson Commissioner for licensing ~
February -(Harwich) hawkers and pedlars; this office
1699 was a disqualification under the
Lottery Act of 1694.
14th Sir Henry Fumese Trustee for circulating Exchequer
B February (Bramber) Bills; acting as Receiver and
1699 Manager of the subscription of ..,._ __
the new East India Company.
These offices were
disqualifications under the Lottery
c Act of 1694.
20th Richard Wollaston Receiver-General of Taxes for
February (Whitchurch) Hertfordshire; this office was a
1699 disqualification under the Lottery
Act of 1694.
D
19th Sir Henry Furnese Trustee for circulating Exchequer r,...
February (Sandwich) Bills; this office was a •
1701 disqualification under the Lottery
Act of 1694.
E 22nd Gilbert Heathcote Trustee for circulating Exchequer
February (City of London) Bills; this office was a
1701 disqualification under the Lottery
Act of 1694.
...,.-,~
F lst Rt. Hon. Earl of As Paymaster-General of the
February Ranelagh (West Looe) Army, appropriated £904,138 of
1703 public funds; had severe
discrepancies in his accounts,
which were only made up to
March 1692.
G
18th John Asgill (Bramber) Indebted to three creditors
December (among them Colonel John Rice)
1707 for £10,000. Author of a book
which argued that the Bible
H proved man may be translated
....- '-f
RAJA RAM PAL v. THE HONBLE SPEAKER, LOK SABHA [C.K. THAKKER, J.) 577
"--i.. from life on earth to eternal life in A
,.. heaven without passing through
death. The House held it to be
blasphemous. The same member
was also expelled from the Irish
Parliament on 11th October 1703.
B
+ 15th Thomas Ridge (Poole) Having been contracted to supply
_....,. February the fleet with 8,217 tuns of beer,
1711 supplied only 4,482 tuns from his
brewery and paid compensation at
a discounted rate for the non- c
supplied beer, thereby defrauding
public funds.
12th Robert Walpole Corruption while Secretary at War.
January (King's Lynn) Forage contracts he negotiated
1712 stipulated payments to Robert D
...... __, Mann, a relation of Walpole's,
but Walpole signed for them and
therefore received the money.
19th Rt. Hon. Adam de While Secretary to the Duke of
February Cardonnel
E
Marlborough, he received an
1712 (Southampton) annual gratuity of 500 gold ducats
from Sir Solomon de Medina, an
army bread contractor.
--~
18th March Sir Richard Steele Seditious libel. Published an F
1714 (Stockbridge) article in The Guardian and a
pamphlet called The Crisis
exposing the government's
support for French inaction on
the demolition of Dunkirk;
demolition was required under the
G
Treaty of Utrecht.
2nd Thomas Forster Participation in the I 715 Jacobite
February (Northumberland) rebellion (he was General of all
1716 the pretender's forces in England). H
~
~
578 SUPREME COURT REPORTS [2007] l S.C.R
A 23rd March Lewis Pryse Refused to attend the House to -\" ...
1716 (Cardiganshire) take oaths of loyalty after the
Jacobite rebellion.
22nd June John Carnegie Participation in the 1715 Jacobite
1716 (Forfarshire) rebellion.
B
23rd Jacob Sawbridge Director of the South Sea
January (Cricklade) Company. ...
1721 f---.
28th Sir Robert Chaplin, Bt. Director of the South Sea
c January
1721
(Great Grimsby) Company.
28th Francis Eyles (Devizes) Director of the South Sea
January Company.
1721
D 30th Sir Theodore Janssen, Director of the South Sea
January Bt. (Yarmouth, Isle of Company.
'f'·r
1721 Wight)
8th March Rt. Hon. John Aislabie Negotiated the agreement to take
1721 (Ripon) over the national debt between
E the South Sea Company and the
government, as Chancellor of the
Exchequer; received £20,000 of
South Sea Company stock;
destroyed evidence of his share
F dealings.
y...._
10th March Sir George Caswall Banker of the South Sea Company;
1721 (Leominster) obtained for his company £50,000
stock in the South Sea Company
while the South Sea Bill was still
G before Parliament, and without
paying for it.
8th May Thomas Vernon Attempt to influence a member of
1721 (Whitchurch) the committee on the South Sea
bubble in favour of John Aislabie,
H his brother-in-law.
'
("'-
'-f
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 579
.., -; Viscount Barrington Involvement in a Lottery held in
15th A
February (Berwick-upon-Tweed) Hanover, but organized in
1723 London. The House declared it
illegal.
4th Francis Elde (Stafford) Corrupt attempt to compromise an
February election petition against him.
B
.,... 1725
--'!
16th May John Ward (Weymouth Involved in a fraud against the
1726 and Melcombe Regis) estate of the late Duke of
Buckingham - compelled to buy c
Alum from Ward's Alum works,
but which Ward kept and sold
again to others.
30th March John Birch (Weobley) Fraudulent sale of the D
1732 Derwentwater Estate (escheated to
..... -; the Crown by the Earl of
... Derwentwater, convicted of High
Treason during the 1715
rebellioil).
E
30th March Denis Bond (Poole) Fraudulent sale of the
1732 Derwentwater Estate (escheated to
the Crown by the Earl of
Derwentwater, convicted of High
_.._.,,. Treason during the 1715 F
rebellion).
3rd April George Robinson Fraudulent use of the funds of
.# 1732 (Great Marlow) the Charitable Corporation for
speculation. Diverted £356,000 of G
funds (£200,000 of which was in
shares of the Corporation) into
buying York Buildings Company
stock, the profits from the sale of
which were given to him.
H
J
\ ~
-;, RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K THAKKER, J.] 581
-
funds of the Westminster A
... "i.
Regiment of the Middlesex Militia;
cashiered for conduct unbecoming
" the character of an officer and a
gentleman.
23rd May Joseph Hunt Absconded to Lisbon after being B
1810 (Queenborough) found to have embezzled public
funds as Treasurer of the
...,...,. Ordnance. During his term he left
a deficit of £93,296.
5th March Benjamin Walsh Convicted (later pardoned) of
c
1812 (Wootton Bassett) attempting to defraud Solicitor-
General Sir Thomas Plumer. Plumer
had given Walsh a draft of
£22,000 with which to buy
exchequer bills, but Walsh used it D
to play the lottery, and lost; he
_._.-... ...
then converted his remaining
I
assets into American currency
and set off for Falmouth to sail to
America, but was brought back. E
Walsh had been expelled by the
Stock Exchange for gross and
nefarious conduct in 1809.
5th July Hon. Andrew James Convicted of conspiracy to
1814 Cochrane (Grampound) defraud (circulated false rumours F
~ y
of the defeat and death of
Napoleon Buonaparte in order to
boost share prices); absconded to
. France before sentence .
5th July Lord Cochrane
G
Convicted of conspiracy to
1814 (Westminster) defraud (circulated false rumours
of the defeat and death of
Napoleon Buonaparte in order to
boost share prices).
~
H
.
~
...
582 SUPREME COURT REPORTS [2007] I S.C.R. ...--
A 16th
February
1857
James Sadleir
(Tipperary)
Absconded after arrest for
fraudulent conversion. He had
abstracted £250,000 of stock from
the Tipperary Joint-Stock Bank for
his brother's use.
~ "
-
,
B 22nd Charles Bradlaugh Contempt 'of orders of the House
February (Northampton) of Commons excluding him from
1882 the Parliamentary estate.
~_......
12th May Edmund Hope Verney Convicted of procuring a girl
c 1891 (Buckingham) under the age of 21 (Miss Nellie
Maud Baskett) for an immoral
purpose.
26th Edward Samuel Wesley Absconded to the United States
February de Cobain (Belfast, East) of America after a warrant for his
D 1892 arrest on charges of commission
of acts of gross indecency was
issued. On 21st March 1893 he +/
was convicted and sentenced to
~
twelve months' imprisonment with
t:::=
hard labour.
E
2nd March George Woodyatt Convicted of fraudulent
1892 Hastings conversion. As a Trustee for
(Worcestershire, Eastern) property under the will of John ~
Brown, appropriated to himself
F over £20,000 from the estate.
Y-........-w
1st August Horatio William Convicted of fraudulent )=
1922 Bottomley (Hackney, conversion. Invited contributions
South) to the Victory Bond Club which
were supposed to be invested in .-
G government stock, but were
actually diverted to his own use.
30th Garry Allighan Contempt of the House of
October (Gravesend) Commons: breach of privilege
H 1947 over article in 'World's Press ~
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J .] 583
News' alleging corruption and A
drunkenness among Members;
lying to the committee
investigating the allegations.
16th Peter Arthur David Convicted of uttering forged
December Baker (Norfolk, South) documents. Forged signatures on B
1954 letters purporting to guarantee
debts in excess of £100,000 owed
by his companies.
INDIAN LAW: HISTORIAL BACKGROUND
c
119. It is no doubt true that the existing law relating to parliamentary
privileges in India is essentially of English origin. But the concept of
parliamentary privileges was not unknown to ancient India. Prititosh Roy in
his work 'Parliamentary Privilege in India' (1991) states that even during
Vedic times, there were two assemblies; Sabha and Samiti which were D
keeping check on all actions of the King. Reference of Sabha and Samiti
is found in all Vedas. In Buddhist India, we find developed parliamentary
system. Members were not allowed to disobey directions of Assemblies.
Offenders were answerable to Assemblies and after affording an opportunity
to them, appropriate actions used to be taken against erring officers. It has E
thus 'rudimentary fe_atures' of parliamentary privilege of today.
120. In 1600, East India Company came to India primarily as 'trader'.
The British Parliament effectively intervened into the affairs of the Company
by passing the East India Company Act, 1773 (popularly known as 'the
Regulating Act, 1773 '), which was followed by the Act of 1784. The roots F
of modem Parliamentary system were laid in various Charter Acts of 1833,
1853, 1854, 1861, 1892, 1909, etc.
121. During 1915-50, there was remarkable growth and development of
Parliamentary privileges in India. For the first time, a limited right of freedom • G
of speech was conferred on the Members of Legislature by the Government
of India Act, \ 919 (Section 67). By the Legislative Members Exemption Act,
1925, two parliamentary privileges were allowed to Members; (i) exemption
from jury service; and (ii) freedom from arrest.
H
584 SUPREME COURT REPORTS [2007] 1 S.C.R
A 122. The Government of India Act, 1935 extended the privileges
conferred and immunities granted. The Indian Independence Act, 1947
accorded sovereign legislative power on the Indian Dominion.
CONSTITUTIONAL PRO VISIONS
B 123. The Constitution oflndia came into force from January 26, 1950.
Part V contains the relevant provisions relating to the Union. Whereas
Chapters I and IV deal with the Executive and Judiciary; Chapters II and III
relate to Parliament. Articles 79 to 8& provide for constitution, composition,
duration, etc. of both the Houses and qualification of members, Articles 89
C to 98 make provisions for election of Speaker, Deputy Speaker, Chairman,
Deputy Chainnan and their salaries and allowances. Article 101 deals with
vacation of seats and Article I 02 specifies circumstances in which a person
is held disqualified to be chosen as or continued to be a Member of
Parliament. Article I 03 attaches finality to such decisions.
D Three Articles are relevant and may be reproduced;
"JOI. Vacation of seats.-(l) No person shall be a member of both
Houses of Parliament and provision shall be made by Parliament by
law for the vacation by a person who is chosen a member of both
E Houses of his seat in one House or the other.
(2) No person shall be a member both of Parliament and of a House
of the Legislature of a State, and if a person is chosen a member
both of Parliament and of a House of the Legislature of a State,
then, at the expiration of such period as may be specified in rules
F made by the President, that person's seat in Parliament shall
become vacant, unless he has previously resigned his seat in the
Legislature of the State.
(3) If a member of either House of Parliament-
G
(a) becomes subject to any of the disqualifications mentioned in
clause (l) or clause (2) of article 102, or
(b) resigns his seat by writing under his hand addressed to the
Chairman or the Speaker, as the case may be, and his resignation
H
...
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 585
is accepted by the Chairman or the Speaker, as the case may be, A
-his seat shall thereupon become vacant:
Provided that in the case of any resignation referred to in sub-
clause (b), if from information received or otherwise and after
making such inquiry as he thinks fit, the Chairman or the Speaker, B
as the case may be, is satisfied that such resignation is not
voluntary or genuine, he shall not accept such resignation.
(4) If for a period of sixty days a member of either House of
Parliament is without permission of the House absent from all C
meetings thereof, the House may declare his seat vacant:
Provided that in computing the said period of sixty days no
account shall be taken of any period during which the House is
prorogued or is adjourned for more than four consecutive days.
D
102. Disqualifications for membership. - (1) A person shall be
disqualified for being chosen as, and for being, a member of either
House of Parliament-
(a) if he holds any office of profit under the Government of India E
or the Government of any State, other than an office declared by
Parliament by law not to disqualify its holder;
(b) ifhe is of unsound mind and stands so declared by a competent
court;
F
.
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgment of
allegiance or adherence to a foreign State; G
(e) if he is so disqualified by or under any law made by Parliament.
Explanation.-For the purposes of this clause a person shall not
be deemed to hold an office of profit under the Government oflndia H
586 SUPREME COURT REPORTS [2007] 1 S.C.R.
A or the Government of any State by reason only that he is a Minister
either for the Union or for such State.
(2) A person shall be disqualified for being a member of either
House of Parliament if he is so disqualified under the Tenth
Schedule.
B
103. Decision on questions as to disqualifications of members.-
(1) If any question arises as to whether a member of either House
of Parliament has become subject to any of the disqualifications
mentioned in clause ( 1) of article I 02, the question shall be referred
c for the decision of the President and his decision shall be final.
(2) Before giviug any decision on any such question, the President
shall obtain the opinion of the Election Commission and shall act
according to such opinion."
D 124. Article 105 provides for powers, privileges and immunities of the
members of Parliament. It is the most important provision as to the controversy
raised in the present proceedings, and may be quoted in extenso;
"I 05. Powers, privileges, etc., of the Houses of Parliament and of
E the members and committees thereof -(I) Subject to the provisions
of this Constitution and to.the rules and standing orders regulating
the procedure of Parliament, there shall be freedom of speech in
Parliament.
(2) No member of Parliament shall be liable to any proceedings in
F
any court in respect of any thing said or any vote given by him
in Parliament or any committee thereof, and no person shall be so
liable in respect of the publication by or under the authority of
either House of Parliament of any report, paper, votes or proceedings.
G (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
H coming into force of section 15 of the Constitution (Forty-fourth
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 587
Amendment) Act, 1978. A
(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. "
B
(emphasis supplied)
125. Articles I 07-22 contain provisions as to legislative procedure.
Article 118 enables both the Houses of Parliament to make Rules for
regulating procedure and conduct of business. Article 121 puts restriction c
on discussion in Parliament in respect of conduct of any Judge of the
Supreme Court or of a High Court in the discharge of his duties. Article 122
prohibits courts from inquiring into or questioning the validity of any
proceedings in Parliament on the ground of irregularity of procedure. It reads
thus:
D
"122. Courts not to inquire into proceedings of Parliament.- (1)
The validity of any proceedings in Parliament shall not be called in
question on the ground of any alleged irregularity of procedure.
(2) No officer or member of Parliament in whom powers are vested E
by or under this Constitution for regulating procedure or the
conduct of business, or for maintaiining order, in Parliament shall be
subject to the jurisdiction of any c:ourt in respect of the exercise by
him of those powers. "
(emphasis supplied) F
EXPULSION OF MEMBERS BY PARLIAMENT
126. There are certain instances wherein Indian Parliament has exercised
the power of expulsion of its members.
G
127. The first case which came up for consideration before Parliament
was of Mr. H.G. Mudgal, a Member of Lok Sabha. He suppressed certain
material facts as to his relationship with the Bombay Bullion Association.
A Committee of Enquiry found the charges proved and came to the
conclusion that the conduct of the Hon'bl•e Member was 'derogatory of the H
588 SUPREME COURT REPORTS [2007] I S.C.R.
A dignity of the House inconsistent with the standard which Parliament is
entitled to expect from its members'.
128. While addressing the House, the then Prime Minister Pandit
Jawaharlal Nehru referred to the work of Sir Erkskine May, Article 105(3) of
the Constitution and practice in the British House.
B
But Pt. Nehru, in my opinion, rightly added;
"Apart from that, even if the Constitution had made no reference
to this, this House as a sovereign Parliament must have inherently
c the right to deal with its own problems as it chooses and I cannot
imagine anybody doubting that fact".
(emphasis supplied)
Regarding approach of House in such cases, he said;
D "Indeed, r do not think it is normally possible for this House
in a sense to convert itself into a court and consider in detail the
evidence in the case and then come to a decision. Of course : the
House is entitled to do so : but it is normally not done : nor is it
considered, the proper procedure".
E
He then stated;
"The question arises whether in the present case this should
be done or something else. I do submit that it is perfectly clear that
this case is not even a case which might be called a marginal case,
F
where people may have two opinions about it, where one may have
doubts if a certain course suggested is much too severe. The case,
if I may say so, is as bad as it could well be. If we consider even
such a case as a marginal case or as one where perhaps a certain
amount of laxity might be shown, I think it will be unfortunate from
G a variety of points of view, more especially because, this being the
first case of its kind coming up before the House, ifthe House does
not express its will in such matters in clear, unambiguous and
forceful terms, then doubts may very well arise in the public mind
as to whether the House is very definite aboot such matters or not.
H Therefore, I do submit that it has become a duty for us and an
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [CK THAKKER, J.] 589
obligation to be clear, precise and definite. The facts are clear and A
precise and the decision should also be clear and precise and
unambiguous. And I submit the decision of the House should be,
after accepting the finding of this report, to resolve that the
Member should be expelled from the House".
129. A motion was then moved to expel Mr. Mudgal which was B
accepted by the House and Mr. Mudgal was expelled.
130. Likewise, power of expulsion was exercised by Parliament against
Mr. Subramanyam Swami (Rajya Sabha) and Mrs. Indira Gandhi (Lok
Sabha). The power was also exercised in case of expulsion from Legislative C
Assemblies of various States.
131. Kaul and Shakhder in their book 'Practice and Procedure of
Parliament', (Sth Edn., p. 262), stated:
"Punishment of Members: In the case of its own members, two D
other punishments are also availabk to the House by which it can
express its displeasure more strongly than by admonition or
reprimand, namely, suspension from the service of the House and
expulsion."
EXPULSION OF MEMBERS AND COURTS E
132. Concrete cases have also come before Indian Judiciary against
orders of expulsion passed by the Legislature. Let us consider leading
decisions on the point.
133. So far as this Court is concerned,, probably this is the first case
F
of the type and, therefore, is of extreme importance. Few cases, which had
come up for consideration earlier did not directly deal with expulsion of
membership from Legislature. As already noted above, though in some
cases, Parliament had taken an action of expelling its members, the aggrieved
persons had not approached this Court*. G
* [Kaul and Shakhder after referring to conflicting decisions of the High Courts of
Madhya Pradesh and Punjab & Haryana, stated; "There ate, therefore, two conflicting
decisions and the position is uncertain. In the abs:ence of a decision by the Supreme
Court, neither decision is a declared law under Article 141 of the Constitution. Law of
a certain and binding character can be laid down only by the Supreme Court". 'Practice
and Procedure of Parliament', (5th Edn.); P. 268]. H
590 SUPREME COURT REPORTS [2007] I S.C.R
A 134. The first case which came to be decided by the Constitution ,._"
Bench of this Court was MS.M Sharma v. Shri Sri Krishna Sinha & Ors., ;::
[ 1959] Supp I SCR 806 : AIR (1959) SC 395 ('Searchlight' for short). The
petitioner, who was Editor of English daily newspaper' Searchlight' published
unedited proceedings of the Assembly. The Legislative Assembly issued
a notice for violating privilege of the House and proposed to take action.
B The petitioner challenged the proceedings inter a/ia contending that they
were in violation of fundamental right of free speech and expression
guaranteed under Article 19 (l)(a) read with right to life under Article 21 of +->.
the Constitution.
C 135. Considering Article l 94(3)[which is pari-materia to Article 105(3)]
of the Constitution, and referring to English Authorities, Das, CJ observed
(for the majority);
The result of the foregoing discussion, therefore, is that the
D House of Commons had at the commencement of our Constitution
the power or privilege of prohibiting the publication of even a true
and faithful report of the debates or proceedings that take place +,
within the House. A fortiori the. House had at the relevant time
the power or privilege of prohibiting the publication of an inaccurate
·or garbled version of such debates or proceedings. The latter part
E of Art. 194(3) confers all these powers, privileges and immunities
on the House of the Legislature of the States, as Art. I 05(3) does
on the Houses of Parliament.
136. On the construction of Article 194(3), His Lordship stated:
F
"Our Constitution clearly provides that until Parliament or
the State Legislature, as the case may be, makes a law defining
the powers, privileges and immunities of the House of Commons
as at the date of the commencement of our Constitution and yet
to deny them those powers, privileges and immunities, after
G
finding that the House of Commons had them at the rel~vant time,
will be not to interpret the Constitution but to re~make it. Nor
do we share the view that it will not be right to entrust our Houses
with these powers, privileges and immunities, for we are. well
persuaded that our Houses, like the House of Commons, will
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 591
appreciate the benefit of publicity and will not exercise the powers, A
privileges and immunities except in gross cases. "
(emphasis supplied)
137. Harmoniously interpreting and reconciling Articles 194(3) and
19(l)(a), the Court held that in respect of parliamentary proceedings, Article B
19( 1)(a) had no application.
138. It is thus clear that Searchlight had nothing to do with expulsion
of a member, though it was relevant so far as construction of Article 194(3)
was concerned.
c
139. Another leading case of this Court was Powers, Privileges and
Immunities of State Legislatures, Article 143 of the Constitution, Re
('Keshav Singh' for short), (1965) l SCR 413 : AIR 1965 SC 745. Though
Keshav Singh was not a case of expulsion of a member of Legislature, it is
important as in exercise of 'advisory opinion' under Article 143 of the D
Constitution, a larger Bench of seven Judges considered various questions,
including powers, privileges and immunities of the Legislature.
140. In that case, K, who was not a member of the House, published
a pamphlet. He was proceeded against for contempt of the House and E
breach of privilege for publishing a pamphlet and was sent to jail. K filed
a petition for habeas corpus by engaging S as his advocate and a Division
Bench of two Judges of the High Court of Allahabad (Lucknow Bench)
released him on bail. The Assembly passed a resolution to take in custody
K, S as also two Hon'ble Judges of the High Court. Both the Judges
instituted a writ petition in the High Court of Allahabad. A Full Court on F
judicial side admitted the petition and granted stay against execution of
warrant of arrest against Judges. In the unusual and extraordinary
circumstances, the President of India made reference to this Court under
Article 143 of the Constitution.
G
141. One of the questions referred to by the President related to
Parliamentary privileges vis-a-vis power of Court. It read thus:
"(4) Whether, on the facts and circumstances of the case, it
was competent for the Full Bench of the High Court of Uttar
H
592 SUPREME COURT REPORTS [2007) 1 S.C.R.
A Pradesh to entertain and deal with the petitions of the said two
Hon'ble Judges and Mr. B. Solomon, Advocate, and to pass interim
orders restraining the Speaker of the Legislative Assembly of Uttar
Pradesh and other respondents to the said petitions from
implementing the aforesaid direction of the said Legislative
Assembly."
B
142. Before considering the ambit and scope of Article 194(3) and
jurisdiction of the Legislature and the power of judicial review of the High
Court under Article 226, the learned Chief Justice gave a golden advice
stating:
c
"In coming to the conclusion that the content of Art. 194(3)
must ultimately be determined by courts and not by the
legislatures, we are not unmindful of the grandeur and majesty of
the task which has been assigned to the Legislatures under the
Constitution. Speaking broadly, all the legislative chambers in our
D country today are playing a significant role in the pursuit of the
ideal of a Welfare State which has been placed by the Constitution
before our country, and that naturally gives the legislative chambers
a high place in the making of history today. The High Courts also
have to play an equally significant role in the development of the
E rule of law and there can be little doubt that the successful working
of the rule of law is the basic foundation of the democratic way of
life. In this connection it is necessary to remember that the
status, dignity and importance of these two respective institutions,
the Legislatures and the Judicature, are derived primarily from 'the
F status dignity and importance of the respective causes that are
assigned to their charge by the Constitution. These two august
bodies as well as the Executive which is another important
constituent of a democratic State, must function not in antinovel
nor in a spirit of hostility, but rationally, harmoniously and in spirit
of understanding within their respective spheres, for such
G harmonious working of the three constituents of the democratic
state alone will help the peaceful development, growth and
stabilization of the democratic way of life in this country.
But when, as in the present case, a controversy arises between
H the House and the High Court, we must deal with the problem
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 593
objectively and impersonally. There is no occasion to import heat A
into the debate or discussion and no justification for the use of
strong language. The problem presented to us by the present
reference is one of construing the relevant provisions of the
Constitution and though its consideration may present some difficult
aspects, we must attempt to find the answers as best as we can.
In dealing with a dispute like the present which concerns the
B
jurisdiction, the dignity and the independence of two august
bodies in a State, we must remember that the objectivity of our
approach itself may incidentally be on trial. It is, therefore, in a
spirit of detached objective enquiry which is the distinguishing
feature of judicial process that we propose to find solutions to the c
questions framed for our advisory opinion. If ultimately we come
to the conclusion that the view pressed before us by Mr. Setalvad
for the High Court is erroneous, we would not hesitate to pronounce
our verdict against that view. On the other hand, if we ultimately
come to the conclusion that the claim made by Mr. Seervai for the
D
House cannot, be sustained, we would not falter to pronounce our
verdict accordingly. In dealing with problems of this importance
and significance, it is essential that we should proceed to discharge
our duty without fear or favour, affection or ill-will and with the
full consciousness that it is our solemn obligation to uphold the
Constitution and the laws. " E
(emphasis supplied)
Then analyzing Article 194(3), the Court stated:
"That takes us to clause (3). The first part of this clause F
empowers the Legislatures of States to make laws prescribing their
powers, privileges and immunities.; the latter part provides that until
such laws are made, the Legislatures in question shall enjoy the
same powers, privileges and immunities which the House of
Commons enjoyed at the commencement of the Constitution. The G
Constitution-makers must have thought that the Legislatures would
take some time to make laws in respect of their powers, privileges
and immunities. During the interval, it was clearly necessary to
confer on them the necessary powers, privileges and immunities.
There can be little doubt that the powers, privileges and immunities
H
594 SUPREME COURT REPORTS [2007] 1 S.C.R.
A which are contemplated by cl. (3), are incidental powers, privileges
and immunities which every Legislature must possess in order that
it may be able to function effectively, and that explains the purpose
of the latter part of clause (3).
This clause requires that the powers, privileges and immunities
B which are claimed by the House must be shown to have subsisted
at the commencement of the Constitution, i.e., on January 26, 150.
It is well-known that out of a large number o privileges and powers
which the House of Commons claimed during the days of its
bitter struggle for recognition, some were given up in course of
c time, and some virtually faded out by desuetude; and so, in every
case where a power is claimed, it is necessary to enquire whether
it was an existing power at the relevant time. It must also appear
that the said power was _not only claimed by the House of
Commons, but was recognised by the English Courts. It would
obviously be idle to contend that if a particular power which is
D claimed by the House was claimed by the House of Commons but
was not recognised by the English courts, it would still be upheld
under the latter part of clause (3) only on the ground that it was
in fact claimed by the House of Commons. In other words, the
inquiry which is prescribed by this clause is : is the power in
E question shown or proved to have subsisted in the House of
Commons at the relevant time ?
It would be recalled that Art. 194(3) consists of two parts. The
first part empowers the Legislature to define by law from time to
time its powers, privileges and immunities, whereas the second part
F provides that until the legislature chooses so to define its powers,
privileges and immunities, its powers, privileges and immunities
would be those of the House of Commons of the Parliament of the
United Kingdom and of its members and committees, at the
commencement of the Constitution. Mr. Seervai's argument is that
G the latter part of Art. 194(3) expressly provides that all the powers
which vested in the House of Commons at the relevant'time, vest
in the House. This broad claim, however, cannot be accepted in
its entirety, because there are some powers which cannot obviously
be claimed by the House. Take the privilege of freedom of access
which is exercised by the House of Commons as a body and
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 595
through its Speaker "to have at all times the right to petition, A
counsel, or remonstrate with their Sovereign through their chosen
representative and have a favorabl.e construction placed on his
words was justly regarded by the Commons as fundamental
privilege". It is hardly necessary to point out that the House
cannot claim this privilege. Similarly, the privilege to pass acts of
attainder and the privilege of impeachment cannot be claimed by
B
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 C
qualifications of its members in cases of doubt. This privilege
I
again, admittedly, cannot be claimed by the House. Therefore, it
would not be correct to say that an powers and privileges which
were possessed by the House of Commons at the relevant time can
be claimed by the House." D
143. Referring to conflict between two august organs of the State and
complimenting the solution adopted by them in England, the learned Chief
Justice said:
"It has been common ground between the Houses and the E
courts that privilege depends on the "known laws and customs of
Parliament'', and not on the ipse dixit of either House. The question
in dispute was whether the law of Parliament was a "particular" law
or part of the common law in its wide and extended sense, and in
the former case whether it was a superior law which overrode the F
common law. Arising out of this question another item of
controversy arose between the courts and the Parliament and that
was whether a matter of privilege should be judged solely by the
House which it concerned, even when the rights of third parties
were involved, or whether it might in certain cases be decided in
the courts, and, if so, in what sort of cases. The points of view G
adopted by the Parliament and the courts appeared to be
irreconcilable. The courts claimed the right to decide for themselves
when it became necessary to do so in proceedings brought
-
before them, questions in relation to the existence or extent of
these privileges, whereas both the Houses claimed to be exclusive H
596 SUPREME COURT REPORTS [2007] 1 S.C.R.
A judges of their own privileges. Ultimately, the two points of view
were reconciled in practice and a solution acceptable to both he
parties was gradually evolved. This solution which is marked out
by the courts is to insist on their right in principle to decide
all questions of privilege arising in litigation before them, with
certain large exceptions in favour of parliamentary jurisdiction.
B Two of these are the exclusive jurisdiction of each House over its
own internal proceedings, and the right of either House to commit
and punish for contempt. May adds that while it cannot be
claimed that either House has formally acquiesced in this assumption
of jurisdiction by the courts, the absence of any conflict for over
c a century may indicate a certain measure of tacit acceptance. In
other words, 'the question about the existence and extent of
privilege is generally treated as justiciable in courts where it
becomes relevant for adjudication of any dispute brought before
the courts.
D
In regard to punishment for contempt, a similar process of give and
take by convention has been in operation and gradually a large
area of agreement has, iD. practice, been evolved. Theoretically, the
House of Commons claims that its admitted right to adjudicate on
breaches of privilege implies in theory the right to determine the
E existence and extent of the privileges themselves. It has never
expressly abandoned this claim. On the other hand, the courts
regard the privileges of Parliament as part of the law of the land,
of which they are bound to take judicial notice. They consider
it their duty to decide any question of privilege arising directly or
F indirectly in a case which falls within their jurisdiction, and to
decide it according to their own interpretation of the law. Naturally,
as a result of this dualism the decisions of the courts are not
accepted as binding by the House in matters of privilege, nor the
decision of the House by the courts; and as May points out, on
the theoretical plane, the old dualism remains unresolved. In
G practice, however, "there is much more agreement on the nature
and principles of privilege· than the deadlock on the question of
jurisdiction would lead one to expect" and May describes these
general conclusions in the following words :
H (1) It seems to be recognized that, for the purpose of
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA (C.K. THAKKER. J.] 597
adjudicating on questions of privilege, neither House is by A
itself entitled to claim the supremacy over the ordinary
courts of justice which was enjoyed by the undivided High
/
Court of Parliament. The supremacy of Parliament, consisting
of the King and the two Houses, is a legislative supremacy
-(
which has nothing to do with the privilege jurisdiction of
either House acting singly.
B
(2) It is admitted by both Houses that, since neither
House can by itself add to the law, neither House can by its
own declaration create a new privilege. This implies that
privilege is objective and its extent ascertainable, and reinforces C
the doctrine that it is known by the courts.
On the other hand, the courts admit-
(3) That the control of each House over its internal
proceedings is absolute and cannot be interfered with by the
D
L'!f -.., ,.. courts.
(4) That a committal for contempt by either House is in
practice within its exclusive jurisdiction, since the facts
constituting the alleged contempt need not be stated on the E
warrant of committal."
144. Paying tribute to English genius, the learned Chief Justice proceeded
to observe:
"It is a tribute to the remarkable English genius for finding
F
pragmatic ad hoc solutions to problems which appear to be
irreconcilable by adopting the conventional method of give and
take. The result of this process has been, in the words of May,
that the House of Commons has not for a hundred years refused
to submit its privileges to the decision of the courts, and so, it may G
be said to have given practical recognition to the jurisdiction of
the courts over the existence and extent of its privileges. On the
other hand, the courts have always, at any rate in the last resort,
refused to interfere in the application by the House of any of its
recognized privileges. That broadly stated, is, the position of H
598 SUPREME COURT REPORTS [2007] 1 S.C.R.
A powers and privileges claimed by the House of Commons. "
145. Construing Article 212 in its proper perspective and drawing
distinction between 'irregularity' and 'illegality', the Court stated:
"Art. 212(1) makes a provision which is relevant. It lays down
B that the validity of any proceedings in the Legislature of a State
shall not be called in question on the ground of any alleged
irregularity of procedure. Art. 212(2) confers immunity on the. +- ....
officers and members of the Legislature in whom powers are
vested by or under the Constitution for regulating procedure
c or the conduct of business, or for maintaining order, in the
Legislature from being subject to the jurisdiction of any court in
respect of the exercise by him of those powers. Art. 212(1) seems
to make it possible for a citizen to call in question in the appropriate
court of law the validity of any proceedings inside the legislative
chamber if his case is that the said proceedings suffer not from
D
mere irregularity of procedure, but from an illegality. If the impugned L
procedure is illegal and unconstitutional, it would be open to be
scrutinised in a court of law, though such scrutiny is prohibited if
the complaint against the procedure is no more than this that the
procedure was irregular. That again is another indication which
E may afford some assistance in construing the scope and extent of
the powers conferred on the House' by Art. 194(3)."
146. Advisory opinion of this Court in Keshav Singh thus is of extreme
importance. Though it did not deal with the question of expulsion directly
F or even indirectly, it interpreted the relevant and material provisions of the
Constitution relating to the powers, privileges and immunities of Parliament/
State Legislature keeping in view the powers, privileges and immunities
enjoyed by the British Parliament.
147. Let us now consider few High Court decisions on the point which
G are directly on the point.
148. In Raj Narain v. Atmaram Govind & Anr., AIR (1954) All 319, the
petitioner who was an elected representative of the Legislative Assembly of
Uttar Pradesh wanted to move a motion in connection with forcible removal
H by police of three teachers who were on hunger-strike. Permission was not
-· RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 599
granted by the Speaker. The petitioner, however, continued to 'disturb' A
proceedings of the House and by use of 'minimum force', he was removed
' from the House. The Committee of Privileges considered the conduct of the
petitioner and resolved to suspend him. The petitioner challenged the
resolution in the High Court of Allahabad under Article 226 of the Constitution.
149. Both the Judges forming the Division Bench ordered dismissal of
B
the petition by recording separate reasons. Sapru, J. conceded that
withdrawal of a member from the House even for a brief period was a serious
matter both for the member as well as for his constituency but disciplinary
or punitive action for disorderly behaviour of a member could be taken.
t' Mukherji, J. took the same view. His Lordship further held that 'the House c
is the sole Judge of its own privileges'.
150. In Yeshwant Rao Meghawale v. Madhya Pradesh Legislative
Assembly & Ors., AIR (1967) MP 95, the petitioner obstructed the proceedings
in the House, jumped on the dias and assaulted the Deputy Speaker. A
motion of expulsion of the petitioner was moved and was passed. The
D
petitioner chaHenged the action by approaching the High Court under
Article 226 of the Constitution.
151. It was contended on behalf of the petitioner that the House of
Commons has the right to provide for its own constitution and power to fill E
vacancies. And it was because of that power that it could expel a member.
Since the Legislative Assembly ofM.P. had no such right, it could not expel
a member.
152. The Court, however, negatived the contention. It observed that
F
though Indian Legislature has no right to provide for its own composition
nor for filling of vacancies in the House, nor to try election disputes,
-
nevertheless it has power to expel a member for proper functioning, protection
and self-preservation. The Court noted that as held by the Privy Council,
!
even Colonial Legislatures have such power.
G
153. In my opinion, by holding so, the Division Bench has not
committed any error of law nor the observations are inconsistent with settled
legal position.
154. I must make mention of a Full Bench decision of the High Court H
(j()() SUPREME COURT REPORTS [2007] 1 S.C.R.
A of Punjab & Haryana in Hardwari Lal v. Election Commission of India, ILR
(1977) 2 P & H 269 (FB). The High Court was expressly and specifically
called upon to decide whether a State Legislature has power to expel its
member. A Bench of five Judges exhaustively considered the question in
detail. Whereas the majority negatived such right, the minority ruled
otherwise and upheld it. The petitioners heavily relied upon the reasons
B recorded and conclusions reached by Sandhawalia, J. (majority view). The
respondents, on the other hand, strongly adverted to observations and
considerations of Narula, CJ (minority view). It would, therefore, be
appropriate if I deal with both the view-points.
c 155. The learned Chief Justice firstly considered the scope and
applicability of clause (3) of Article 194 [similar to clause (3) of Article 105]
of the Constitution and held that to determine whether a particular privilege
falls in the exceptional category or not is that as soon as a particular
privilege is claimed by the Legislature and is disputed or contested, it must
be inquired whether such a privilege was available to the House of Commons
D
on January 26, 1950, and then to decide whether the said privilege is or is
not compatible or consistent with the provisions of the Constitution. If it
is not inconsistent with the provisions of the Constitution, it can be claimed
by the Legislature under Article 194(3).
E 156. It was, thP.refore, held that "whenever it is found that
the Commons did enjoy a particular privilege, power or immunity at the r
relevant time, it must be deemed to have been written with pen and ink in
clause (3) of Article 194, and it is only when a dispute arises whether in the
nature of things the particular privilege or power can actually be expressed,
F claimed or enjoyed that the Court will scrutinize the matter and without
deleting the same from the list hold that notwithstanding the power or
privilege being there it cannot be exercised, either because it is humanly
G
impossible to do so or because the extension of the privilege of the
Commons would contravene some express or special provision of the
Constitution". -
157. Regarding the main question as to the right of the Legislature to
expel a member, it was admitted that Indian Legislature had no privilege to
provide for its own composition, but it is no ground to deny the right to _,_
the House to expel a member as a means of punishment for misconduct;
H Referring to a series of cases, it was held that "independent of the power
\ ___ _
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 001
and privilege of the House of Commons to constitute itself it did have and A
exercised at the time of coming into force of our Constitution the power to
expel its members by way of punishment for misconduct or for breach of
privilege or for committing contempt of the House."
158. The majority, on the other hand, took a contrary view. Sandhawalia,
J., considering historical development of law as to parliamentary privileges,
B
observed:
"In the context of an unwritten Constitution in England, the
House of Commons has undoubtedly claimed and enjoyed the
privilege of providing for and regulating its own Constitution from c
the very earliest times. This privilege in terms and in effect implies
and includes all powers to control the composition of the House
and to determine the identity of its membership."
159. Unfortunately, however, having held so, the majority adopted an
incorrect approach thereafter. Though this Court in Keshav Singh held that
D
the privilege enjoyed by the House of Commons in England in regard to its
constitution had been expressed in three ways; namely:
"(i) by the order of new writs to fill vacancies that arise in the
Commons in the course of a Parliament; E
(ii) by the trial of controversial elections; and
(iii) by determining the questions of its members in cases of
doubt; "
F
-the High Court (majority) added one more category (expulsion of a
member) stating that the power of expulsion was another example (fourth
category) of the power to the House to determine its own composition.
160. Describing ancient English precedents as 'not only wasteful but G
dangerous', the majority concluded;
"The uncanalised power of expulsion in the House of
Commons stems from its ancient and peculiar privileges of
determining its own composition which in tum arises for long H
602 SUPREME COURT REPORTS [2007] 1 S.C.R.
A historical reasons and because of the unwritten Constitution in
England." (emphasis supplied)
161. With respect, the majority was not right in coming to the aforesaid
conclusion and I am unable to read legal position as envisaged by
Sandhawalia, J.
B
162. In K. Anbazhagan & Ors. v. Secretary, Tamil Nadu Legislative
Assembly, Madras & Ors., AIR (1988) Mad 275, some of the members of
Tamil Nadu Legislative Assembly were expelled for burning the Constitution
considering the conduct as unworthy of members of Legislative Assembly.
C The action was challenged in the High Court.
163. A contention similar to one raised in Yeshwant Rao was raised
that since the Tamil Nadu Legislative Assembly had no right to provide for
its constitution or composition, it had no right to expel a member since a
right to expel a member flows from a right to provide for composition of the
D House.
164. The Court observed that in Keshav Singh, it was held by the -.+ r
Supreme Court that Indian Legislatures have no privilege to provide for its
own constitution. But it rightly proceeded to consider the controversy by
observing that the question was whether the power of expulsion exercised
E by the House of Commons was to be 'wholly and exchsively treated as a
part of the privilege in regard to its constitution'. Then considering English
authorities and various other decisions on the point; the Court held that
such power was possessed by the Legislature and was available in appropriate
cases.
F
165. In my judgment, the right to expel a member is distinct, separate
and independent of right to provide for the due constitution or composition
of the House and even in absence of such power or prerogative, right of
expulsion is possessed by a Legislature (even a Colonial Legislature), which
in appropriate cases can be exercised.
G
166. I am also supported in taking this view from the discussion the
Constituent Assembly had and the final decision taken.
167. When the provisions relating to powers, privileges and immunities
H of Parliament and State Legislatures were considered by the Constituent
-x
RAJA RAM PAL v_ THE HON'BLE SPEAKER, LOK SABHA [C_K_ THAKKER, J ] 003
_..,, 1 Assembly, conflicting views were expressed by the Hon'ble Members. One A
view was in favour of making such provisions exhaustive by incorporating
them in the Constitution. The other view, however, was to include few
specific and express rights in the Constitution and to adopt the rest as were
available to House of Commons in England.
168. The relevant discussion throws light on different views expressed B
by the Members of Assembly. On May 19, 1949, when the matter came up
for consideration, Shri Alladi Krishnaswami Ayyar stated:
"Shri Alladi Krishnaswami A.war (Madras : General) : Sir, in
regard to the article as it stands, two .objections have been raised, C
one based upon sentiment and the other upon the advisability of
making a reference to the privileges of a House in another State
with which the average citizen or the members of Parliament here
may not be acquainted with. In the first place, so far as the
question of sentiment is concerned, I might share it to some extent, D
but it is also necessary to appreciate it from the practical point of
view. It is common knowledge that the widest privileges are
exercised by members of Parliament in England. If the privileges are
confined to the existing privileges of legislature in India as at
present constituted, the result will be that a person cannot be
punished for contempt of the House. The actual question arose in E
Calcutta as to whether a person can be punished for contempt of
the provincial legislature or other legislatures in this country. It has
been held that there is no power to punish for contempt any person
who is guilty of contempt of the provincial or even the Central
Legislature, whereas the Parliament in England has the inherent F
right to punish for contempt. The question arose in the Dominions
and the Colonies and it has been held that by reason of the wide
wording in the Australian Commonwealth Act as well as in the
Canadian Act the Parliament in the both places have powers similar
to the powers possessed by the Parliament in England and therefore
have the right to punish for contempt. Are you going to deny to G
yourself that power? That is the question.
I will deal with the second objection. If you have the time and
if you have the leisure to formulate all the privileges in a
compendious form, it will be well and good. I believe a Committee H
SUPREME COURT REPORTS [2007] I S.C.R
A constituted by the Speaker on the legislative side found very
difficult to fonnulate all the privileges, unless they went in detail
into the whole working of parliamentary institution in England and
the time was not sufficient before the legislature for that purpose
and accordingly the Committee was not able to· give any effective
advice to the Speaker in regard to this matter. I speak subject to
B correction becau:;e I was present at one stage and was not present
at a later stage. Under these circumstances I submit there is
absolutely to question of infra dig. We are having the English
language. We are having our Constitution in the English language
side by side with Hindi for the time being. Why object only to
c refei:ence to the privileges in England?
The other point is that there is nothing to prevent the
Parliament from setting up the proper machinery for formulating
privileges. The article leaves wide scope for it. "In other respects,
the privileges and immunities of members of the Houses shall be
D
such as may from time to time be defined by Parliament by law and,
until so defined, shall be such as are enjoyed by the members of
the House of Commons of the Parliament of the United Kingdom
at the commencement of this Constitution". That is all what the
article says. It does not in any way fetter your discretion. You may
E enlarge the privileges, you may curtail the privileges, you may have
a different kind of privileges. You may start on your own journey
without reference to the Parliament of Great Britain. There is
nothing to fetter the discretion of the future Parliament of India.
Only as a temporary measure, the privileges of the House of
F Commons are made applicable to this House. Far from it being infra
dig, it subordinates the reference to privileges obtained by the
members of Parliament in England to the privileges which may be
conferred by this Parliament by its ·Own enactments. Therefore there
is no infra dig in the wording of class (3).
G This practice has been followed in Australia, in Canada and
in other Dominations with advantage and it has secured complete
freedom of speech and also the omnipotence of the House in every
respect. Therefore we need not fight shy ~f hnrrowing to this
extent, when we are borrowing the English language and when we
H are using constitutional expressions which are common to England.
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J] 605
.. You are saying that it will be the same as those enjoyed by the A
members of the House of Commons. It is far from that. Today the
Parliament of the United Kingdom is exercising sway over Great
Britain, over the Dominions and others. To say that you are as
good as Great Britain is not a badge of inferiority but an assertion
of your own self-respect and also of the omnipotence of your
Parliament. Therefore, I submit, Sir, there is absolutely no force in
B
the objection made as to the reference to the British Parliament.
Under these circumstances, far from this article being framed in a
spirit of servility or slavery or subjection to Britain, it is framed in
a spirit of self-assertion and an assertion that our country and our
Parliament are as great as the Parliament of Great Britain." C
169. It is thus clear that when draft Article 85 (Present Article 105) was
considered, different view-points were before the House. It was also aware
of various Constitutions, particularly, Constitutions of Canada and Austr~lia.
The Members expressed their views, made suggestions and sought D
amendments and finally, the draft Article 85 was approved as amended.
170. Likewise, when draft Article 169 (Present Article 194) came up
before the House on June 3, 1949, again, the matter was discussed at length.
171. I would like to refer to in particular the considerations weighed E
with the House in the speech ofHon'ble the President, Dr. B.R. Ambedkar,
who said:
"The privileges of Parliament extend, for instance, to the rights
of Parliament as against the public. Secondly, they also extend to F
rights as against the individual members. For instance, under the
House of Commons' power and privileges it is open to Parliament
to convict any citizen for contempt of Parliament and when such
privilege is exercised the jurisdiction of the court is ousted. That
is an important privilege. Then again, it is open to Parliament to
take action against any individual member of Parliament for G
anything that has been done by him which brings Parliament into
disgrace. These are very grave matters-e.g., to commit to prison.
the right to lack up a citizen for what parliament regards as
contempt of itself is not an easy matter to define. Nor is it easy to
say what are the acts and deeds of individual members which bring H
)
606 SUPREME COURT REPORTS [2007] 1 S.C.R.
A Parliament into disrepute. "
(emphasis supplied)
He further stated:
B "Let me proceed. It is not easy, as I said, to define what are
the acts and deeds which may be deemed to bring Parliament into
disgrace. That would require a considerable amount of discussion
and examination. That is one reason why we did not think of
enumerating, these privileges and immunities.
c
But there is not the slightest doubt in my mind and I am sure
also in the mind of the Drafting Committee that Parliament must
have certain privileges, when that Parliament would be so much
exposed to calumny, to unjustified criticism that the parliamentary
institution in this country might be brought down to utter contempt
D and may . lose all the respect which parliamentary institutions
should have from the citizens for whose benefit they operate.
I have referred to one difficulty why it has not been possible
to categorise. Now I should mention some other difficulties which
E we have felt.
It seems to me, if the proposition was accepted that the Act
itself should enumerate the privileges of Parliament, we would have
to follow three courses. One is to adopt them in the Constitution,
namely to set out in detail the privileges and immunities of Parliament
F
and its members. I have very carefully gone over May's
Parliamentary Practice which is the source book of knowledge with
regard to the immunities and privileges of Parliament. I have gone
over the index of May's Parliamentary Practice and I have noticed
that practically 8 or 9 columns of the index are devoted to the
G privileges and immunities of Parliament. So that if you were to enact
a complete code of the privileges and immunities of Parliament
based upon what May has to say on this subject, I have not the
least doubt in my mind that we will have to add not less than
twenty or twenty-five pages relating to immunities and privileges
H of Parliament. I do not know whether the Members of this House
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] ffi7
would like to have such a large categorical statement of privileges A
and immunities of Parliament extending over twenty or twenty-five
pages. That I think is one reason why we did not adopt that course.
The other course is to say, as has been said in many places
in the Constitution, that Parliament ·may make provision with regard
to a particular matter and until Parliament makes that provision the B
.' existing position would stand. That is the second course which we
could have adopted. We could have said that Parliament may
define the privileges and immunities of the members and of the
body itself, and until that happens the privileges existing on the
date on which the Constitution comes into existence shall continue c
to operate. But unfortunately for us, as honourable Members will
know, the 1935 Act conferred no privileges and no immunities on
Parliament and its members. All that it provided for was a single
provision that there shall be freedom Of speech and no member
shall be prosecuted for anything said in the debate inside Parliament.
D
Consequently that course was not open, because the existing
•' !- Parliament or Legislative Assembly possess no privilege and no
immunity. Therefore we could not resort to that course.
The third course open to us was the one which we have
followed, namely, that the privileges of Parliament shall be the E
privileges of the House of Commons. It seems to me that except of
the sentimental objection to the reference to the House of Commons
I cannot see that there is any substance in the argument that has
been advanced against the course adopted by the Drafting
Committee. I therefore suggest that the article has adopted the only F
possible way of doing it and there is no other alternative way open
to us. That being so, I suggest that this article be adopted in the
way in which we have drafted it. "
)
172. Thereafter the House decided to approve the provision relating to
powers, privileges and immunities of State Legislatures. G
173. The aforesaid discussion clearly and unequivocally indicates that
the Members of the Constitution wanted Parliament (and State Legislatures)
to retain power and privileges to take appropriate . action against any
individual member for 'anything that has been done by him' which may H
i
(J()8 SUPREME COURT REPORTS [2007] I S.C.R.
A bring Parliament or Legislative Assembly into 'disgrace'. In my opinion,
therefore, it cannot be said that the Founding Fathers of the Constitution
were not aware or never intended to deal with individual misdeeds of
members and no action can be taken by the Legislature under Article I 05 -.
or 194 of the Constitution.
B 174. An authority on the 'Constitutional Law of India', (H.M. Seervai)
pithily puts this principle in one sentence:
"It is clear, therefore, that the privileges of the British House
of Commons were not conferred on the Indian Legislatures in a fit
c of absent mindedness".
(emphasis supplied)
(Constitutional Law of India; Third Edn.; Vol. II; para 20-36)
D ORDER OF EXPULSION AND JUDICIAL REVIEW
175. The history of relationship between Parliament and Courts at
Westminister is also marked with conflict and controversy.
E 176. Sir Erskine May rightly comments; "After some three and a half
centuries, the boundary between the competence of the law courts and the
jurisdiction of the either House in matters of privilege is still not entirely
determined".
F 177. According to the learned author, the earliest conflicts between
Parliament and the Courts were about the relationship between the lex
parliamenti and the common law of England. Both Houses argued that
under the former, they alone were the judges of the extent and application
of their own privileges, not examinable by any court or subject to any
appeal. The courts, on the other hand, professed judicial ignorance of the
G lex parliamenti. After some time, however, they recognized it, but as a part
of the Law of England and, therefore, wholly within the judicial notice.
178. In the middle of the nineteenth century, the conflict, to the large
extent, had been resolved. Out of both the claims, (i) whether a privilege
H existed; and (ii) whether it had been breached, Parliament yielded the first
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] (:IE
to the courts. In turn, courts recognized right of the House to the second. A
179. The question was also considered by Anson ('The Law and
Custom of the Constitution', Fifth Edition; Vol. I; pp. 190-99). The learned
author considered the causes of conflict between Houses and Courts. He
noted that the House had asserted that 'it is the sole judge of the extent
of its privileges' and the Court had no jurisdiction in the matter. Courts, on B
the other hand, took the stand that 'when privilege conflicts with rights
which they have it in charge of maintain, they will consider whether the
alleged privilege is authentic, and whether it governs the case before them'.
180. Then referring to three leading cases, (i) Ashby v. White, (1704) c
14 St Tr 695; (ii) Stockdale v. Hansard, (1839) 9 Ad & E 1 : 112 ER 1112;
and (iii) Bradlaugh v. Gossett, (1884) 12 QBD 271: 53 LJQB 200-the author
concluded:
"On the whole, it seems now to be clearly settled that the
Courts will not be deterred from upholding private rights by the fact
D
that questions of parliamentary privilege are involved in their
maintenance; and that, except as regards the internal regulation of
its proceedings by the House, Courts of Law will not hesitate to
inquire into alleged privilege, as they would into custom, and
determine its extent and application." E
181. In Halsbury 's Laws ofEngland, (4th Edition, Reissue, Vol. 34; pp.
553-54; paras 1004-05), it has been stated:
"1004. The position ofthe courts oflaw. Each House of Parliament
F
has traditionally claimed to be the sole and exclusive judge of its
own privilege and of the extent of that privilege. The courts of law
accept the existence of privileges essential to the discharge of the
functions of the two Houses. In 1939, all the privileges required
for the energetic discharge of the Commons' trust were conceded
by the court without a murmur or doubt; and over 150 years later, G
the Privy Council confirmed that the courts will not allow any
challenge to be made to what is said or done within the walls of
Parliament in perfonnance of its legislative functions and protection
of its established privileges. On the other hand, the courts take the
view that it is for them to determine whether a parliamentary claim H
610 SUPREME COURT REPORTS (2007] I S.C.R.
A to privilege in a particular case falls within that area where what is
claimed is necessary to the discharge of parliamentary functions or
internal to one or other of the Houses, in which case parliamentary
jurisdiction is exclusive, or whether it falls outside that area,
especially if the rights of third parties are involved, where the
courts would expect to form their own judgments.
B
I 005. Limits of agreement regarding jurisdiction. In spite of the
dualism of jurisdiction between the Houses of Parliament and the
courts of law, the current measure of agreement on the respective
spheres of the two Houses and the courts has, since the mid-
c nineteenth century, prevented the direct conflicts of earlier years.
Although the Houses have never directly admitted the claim
of the courts of law to adjudicate on matters of privilege, they
appear to recognize that neither House is by itself entitled to claim
the supremacy wl;iich was enjoyed by the undivided High Court of
D
Parliament.
For their part the courts of law acknowledge that the control
of each House over its own proceedings is absolute and not
subject to judicial jurisdiction; and the courts will not interfere with
E the interpretation of a statute by either House so far as the
proceedings of the House are concerned. Neither will the courts
inquire into the reasons for which a person has been adjudged
guilty of contempt and committed by either House, when the order
or warrant upon which he has been arrested does not state the
F causes of his arrest; for in such cases it· is presumed that the order
or warrant has been duly issued unless the contrary appears upon
the face of it."
181A. Holdsworth, in 'A History of English Law' (Vol. I; pp. 393-94)
rightly observed:
G
"There are two maxims or principles which govern this subject.
The first tells us that "Privilege of Parliament is part of the law of
the land;" the second that "Each House is the judge of its own
privileges." Now at first sight it may seem that these maxims are
H contradictory. If privilege of Parliament is part of the law of the.
~
~
RAJA RAM PAL 1·. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 611
/
;
"'f
land its meaning and extent must be interpreted by the courts, just A
~- like any other part of the law; and therefore neither House can add
to its privileges by its own resolution, any more than it can add to
any other part of the law by such a resolution. On the other hand,
if it is true that each House is the sole judge of its own privileges,
it might seem that each House was the sole judge as to whether
or no it had got a privilege, and so could add to its privileges by
B
... its own re.solution. This apparent contradiction is solved if the
proper application of these two maxims is attended to. The first
maxim applies to cases like Ashby v. White; [1704[ 14 St Tr 695 and
Stockdale v. Hansard; [1839] 9 Ad & E 1 : 112 ER 1112 in which
• the question at issue was the existence of a privilege claimed by c
the House. This is a matter of law which the courts must decide,
without paying any attention to a resolution of the House on the
subject. The second maxim applies to cases like that of the Sheriff
- of Middlesex; [ 1840] 11 Ad & E 2 73 : 113 ER 419 and Bradlaugh
v. Gosset; [1884] 12 QBD 271 : 53 LJQB 200, in which an attempt
was made to question, not the existence, but the mode of user of
D
an undoubted privilege. On this matter the courts will not interfere
... because each House is the sole judge of the question whether,
when, or how it will use one of its undoubted privileges."
182. We have a written Constitution wl:ich confers power of judicial E
review on this Court and on all High Courts. In exercising power and
discharging duty assigned by the Constitution, this Court has to play the
role of a 'sentinel on the qui vive' and it is the solemn duty of this Court
to protect the fundamental rights guaranteed by Part III of the Constitution
zealously and vigilantly. p
183. It may be stated that initially it was contended by the respondents
that this Court has no power to consider a complaint against any action
taken by Parliament and no such complaint can ever be entertained by the
Court. Mr. Gopal Subramaniam, appearing for the Attorney General, however,
at a later stage conceded (and I may say, rightly) the jurisdiction of this G
Court to consider such complaint, but submitted that the Court must always
keep in mind the fact that the power has been exercised by a co-ordinate
organ of the State which has the jurisdiction to regulate its own proceedings
within the four walls of the House. Unless, therefore, this Court is convinced
that the action of the House is unconstitutional or wholly unlawful, it may H
-~
612 SUPREME COURT REPORTS (2007] I S.C.R.
A not exercise its extraordinary jurisdiction by re-appreciating the evidence
and material before Parliament and substitute its own conclusions for the
conclusions arrived at by the House.
-
184. In my opinion, the submission is well-founded. This Court cannot
be oblivious or unmindful of the fact that the Legislature is one of three
B organs of the State and is exercising powers under the same Constitution
under which this Court is exercising the power of judicial review. It is,
therefore, the duty of this Court to ensure that there is no abuse or misuse
of power by the Legislature without overlooking another equally important
;;onsideration that the Court is not a superior organ or an appellate forum
C over the other constitutional functionary. This Court, therefore, should ,·•....
exercise its power of judicial review with utmost care, caution and
circumspection.
185. The principle has been succinctly stated by Sir John Donaldson,
M.R. in R. v: Her Majesty's Treasury, ex parte Smedley, 1985 QB 657, 666
D thus:
+ ,,.
"It ....... behoves the courts to be ever sensitive to the paramount
need to refrain from trespassing on the province of Parliament or,
so far as this can be avoided, even appearing to do so. "
E (emphasis supplied)
IND/AN PARLIAMENT HAS NO DUAL CAPACITY
186. It was also urged that Indian Parliament is one of the three
components of the State and it does not have a 'dual capacity' like the
F
British Parliament which is not only 'Parliament', i.e. legislative body, pure
and simple, but also 'the High Court of Parliament'. Since Indian Parliament
is not a 'Court of Record', it has no power, authority or jurisdiction to award
or inflict punishment for Contempt of Court nor it can be contended that
such action is beyond judicial scrutiny.
.....
G
187. In this connection, I may only observe that in Searchlight as well
as in Keshav Singh, it has been observed that there is no doubt that
Parliament/State Legislature has power to punish for contempt, which has
been reiterated in other cases also, for instance, in State of Karnataka v.
H Union nf India, [1977] 4 SCC 608, and in P. V. Narasimha Rao v. State,
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA (C.K THAKKER, .I.] 613
[I 998] 4 sec 626. But what has been held is that such decision of Parliament/ A
-·
'
State Legislature is not 'final and conclusive'. This Court in all earlier cases
held that in view of power of judicial review under Articles 32 and 226 of
the Constitution, the Supreme Court and High Courts have jurisdiction to
decide legality or otherwise of the action taken by State-authorities and that
power cannot be taken away from judiciary. There lies the distinction
between British Parliament and Indian Parliament. Since British Parliament
B
is also 'the High Court of Parliament', the action taken or decision rendered
by it is not open to challenge in any court of law. This, in my opinion, is
based on the doctrine that there cannot be two parallel courts, i.e. Crown's
Court and also a Court of Parliament ('the High Court of Parliament')
exercising judicial power in respect of one and the same jurisdiction. India c
is a democratic and republican State having a written Constitution which is
supreme and no organ of the State (Legislature, Executive or Judiciary) can
claim sovereignty or supremacy over the other. Under the said Constitution,
power of judicial review has been conferred on higher judiciary (Supreme
Court and High Courts). The said power is held to be one of the 'basic
D
features' of the Constitution and, as such, it cannot be taken away by
Parliament, even by an amendment in the Constitution. [ Vide Sambamurthy
v. State ofA.P, [1987] 1 SCC 362: AIR (l 987) SC 663; Kesavananda Bharti
v. State of Kera/a, [1973] 4 SCC 225 : AIR (1973) SC 1461; Indira Nehru
Gandhi v. Raj Narain, [1975) Supp SCC I : AIR (1975) SC 2299; Minerva
Mills Ltd. v. Union of India, [1980] 3 SCC 625 : AIR (1980) SC 1789; L. E
Chandra Kumarv. Union a/India, [1987] 1SCC124: [1987] I SCC 124:
[1987] I SCR 435, Kihoto Hollohon v. Zachilhu, (1992] Supp 2 SCC 651 :
AIR (1993) SC 412].
_ ...
188. It has, therefore, been held in several cases that an action of
Parliament/State Legislature cannot claim 'total immunity' from judicial review.
In fact, this argument had been put forward in Keshav Singh which was
F
negatived by this Court. It was opined that an aggrieved party may invoke
the jurisdiction of the High Court under Article 226 or of the Supreme Court
under Article 32 of the Constitution. That, however, does not mean that
while exercising extraordinary jurisdiction urider the Constitution, the powers G
of the courts are absolute, unlimited or unfettered. The Constitution which
conferred power of judicial review on the Supreme Court and High Courts,
with the same pen and ink provided that the validity of proceedings in
Parliament cannot be called in question on the ground of 'irregularity in
procedure'. It is, therefore, the duty of this Court to give effect -to the said H
614 SUPREME COURT REPORTS [2007] I S.C.R.
A provision and keeping in view the limitation, exercise the power of judicial
review.
..
.
189. Moreover, in the instant cases, the Court is called upon to answer
a limited question whether Parliament can expel a member. As I have already
discussed in earlier part of this judgment, even a Colonial Legislature having
B limited privileges possesses the power to expel a member if his conduct is
found to be not befitting a member of Legislature. If it is so, in my opinion,
it goes without saying that Indian Parliament, which has undoubtedly much
more powers than a Colonial Legislature, can take such action and it cannot
be successfully contended that Parliament does not possess the power to
C expel a member. I am, therefore, unable to uphold the argument of the
petitioners.
D!SQUALIFICA TION AND EXPULSION
D 190. The petitioners also submitted that the law relating to
disqualification and vacation of seats has been laid down in Articles 101 to
104 (and 190-93) read with Schedule X to the Constitution and of the
Representation of the People Act, 1951. Those provisions are 'full and
complete'. In other words, they are in the nature of 'complete Code' as to
disqualification of membership and vacation of seats covering the field in
E its entirety. No power of expulsion de hors the above provisions exists or
is available to any court or authority including Parliament. The action of
Parliament, hence, is without jurisdiction and is liable to be set aside.
191. I am unable to uphold the contention. As already discussed
F earlier, every legislative body-Colonial or Supreme-possesses power to
regulate its proceedings, power of self-protection, self-preservation and
maintenance of discipline. It is totally different and distinct from the power
to provide the constitution or composition which undoubtedly not possessed
by Indian Parliament. But every legislative body has power to regulate its
G proceedings and observance of discipline by its members. In exercise of that
power, it can suspend a member as also expel him, if the circumstances
warrant or call for such action. It has nothing to do with disqualification and/
or vacation of seat. In fact, a question of expulsion arises when a member
is not disqualified, his seat has not become vacant and but for such
expulsion, he is entitled to act as a member of Parliament.
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 615
PARLIAMENT HAS NO CARTE BLANCHE POWER A
- 192. The counsel for the petitioners submitted that every power has its
limitations and power conferred on Parliament is not an exception to this
rule. It has, therefore, no absolute right to take any action or make any order
it likes. It was stated .that this Court has accepted this principle in several
cases by observing that absolute power is possible 'only in the moon' [vide B
Ahmedabad St. Xavier's College Society & Anr. v. State of Gujarat & Anr.,
[1975] 1SCR173: [1974] I SCC 717: AIR(l974) SC 1389]. I admit my inability
to express any opinion on the larger issue. But I have no doubt and I hold
that Parliament, like the other organs of the State, is subject to the
provisions of the Constitution and is expected, nay, bound to exercise its C
powers in consonance with the provisions of the Constitution. But I am
unable to hold that the power to expel a member is a carte blanche in nature
and Parliament has no authority to expel any member. In my view, Parliament
can take appropriate action against erring members by imposing appropriate
punishments or penalties and expulsion is one of them. I may, however, D
hasten to add that under our Constitution, every action of every authority
is subject to law as nobody is above law. Parliament is not an exception to
this 'universal' rule. It is, therefore, open to an aggrieved party to approach
this Court raising grievance against the action of Parliament and if the Court
is satisfied within the limited parameters of judicial review that the action is
unwarranted, unlawful or unconstitutional, it can set aside the action. But E
it is not because Parliament has no power to expel a member but the action
was not found to be in consonance with law.
PROCEDURAL IRREGULARITY: EFFECT
- 193. It was then contended that the impugned actions taken by Lok
Sabha and Rajya Sabha are illegal and unconstitutional. It was stated that
F
the immunity granted by clause (l) of Article 122 of the Constitution
('Courts not to inquire into proceedings of Parliament') has been made
expressly limited to 'irregularity of procedure' and not to substantive
illegality or unconstitutionality. If the action taken or order passed is ex G
facie illegal, unlawful or unconstitutional, Parliament cannot take shelter
under Article 122 and prevent judicial scrutiny thereof. Neither ad hoc
Committees have been contemplated by the Constitution nor such committees
nave power to inquire into conduct or misconduct of Members of Parliament.
All proceedings, therefore, have no legal foundation. They were without
I
H
616 SUPREME COURT REPORTS [2007] I S.C.R.
A jurisdiction or lawful basis and are liable to be ignored altogether.
194. In this connection, the attention of the Court was invited to
Constituent Assembly Debates when draft Article IOI (present Article 122)
was discussed. Mr. Karnath suggested an amendment in clause (I) of Article
I 01 by inserting the words "in any court" after the words "called in
B question".
J
195. Dealing with the amendment and jurisdiction of Courts, Dr. B.R.
Ambedkar stated (CAD: Vol.VIII; pp. 199-201):
c "With regard to the amendment of Mr. Karnath, I do not think
it necessary, because where can the proceedings of Parliament be
questioned in a legal manner except in a Court? Therefore, the
only place where the proceedings of Parliament can be questioned
in a legal manner and legal sanction obtained is the Court."
D (emphasis supplied)
196. Reference was also made to Pandit MS.M Sharma v. Shree
Krishna Sinha & Ors. (Pandit Sharma JI); (I 961) l SCR 96 : AIR 1960 SC
I 186, wherein a Bench of eight Hon'ble Judges of this Court held that "the
E validity of the proceedings inside the Legislature of a State cannot be called
in question on the allegation that the procedure laid down by the law had
not been strictly followed".
197. In Keshav Singh also, this Court reiterated the above proposition
p of law and stated;
"Art. 212(1) makes a provision which is relevant. It lays down
that the validity of any proceedings in the Legislature o_f a State
--
;
shall not be called in question on the ground of any alleged
irregularity of procedure. Art. 212(2) confers immunity on the
G officers and members of the Legislature in whom powers are vested
by or under the Constitution for regulating procedure or the
conduct of business, or for maintaining order, in the Legislature
from being subject to the jurisdiction of any court in respect of the
exercise by him of those powers. Art. 212(1) seems to make it
H possible for a citizen to call in question in the appropriate court
RAJA RAM PAL r. THE HON'BLE SPEAh.ER. LOK SABHA [CK THAKKFR. J.] 617
... i of law the va'lidity of any proceedings inside the legislative A
chamber if his case is that the said proceedings suffer not from
mere irregularity of procedure, but from an illegality. If the
imp11gned proced11re is illegal and 11nconstit11tional, it 1ro11ld be
open to he scrutinised in a c:ourt of law, though such scrutiny is
prohibited if the complaint against the procedure is no more than
this that the procedure was irregular. "
B
(emphasis supplied)
[See also Kihoto Hollohan v. Zachil/hu & Ors., [1992] Supp 2 SCC
651, 711].
c
198. The learned counsel for the respondents have, in my opm1on,
rightly not disputed the above statement of law made in the larger Bench
decisions of this Court. They, however, stated that a Committee was
appointed by Parliament, which went into the allegations against the
petitioners. Adequate opportunity had been afforded to the members and
D
after considering the relevant material placed before it, a decision was taken
holding them guilty. The said action was approved by the House and as
such, the law laid down in the above decisions has no application to the
fact-situation and no grievance can be made against it.
199. In my view, the submission of the respondents deserves acceptance. E
Taking into account serious allegations against some of the members of the
House, Parliament decided to inquire into correctness or otherwise of the
charges by constituting an 'Inquiry Committee'. The members were asked
to offer their explanation and considering the evidence and material on
record, the Committee appointed by Parliament decided the matter. It,
F
therefore, cannot be said that the case is covered by exceptional part of
clause (1) of Article 122. It cannot be overlooked that this Court is exercising
power of 'judicial review', which by its nature limited to serious infirmities
of law or patent illegalities. It cannot, therefore, enter into sufficiency of
material before the authority nor can substitute its own opinion/finding/
decision for the opinion/finding/decision arrived at by such authority. G
Hence, even if there is any irregularity in adopting the procedure or in
appreciating evidence by the Committee or in approving the decision by
Parliament, it squarely falls under the 'protective umbrella' of Article 122(1)
of the Constitution and this Court cannot interfere with the decision in view
of the constitutional protection granted by the said provision. H
618 SUPREME COURT REPORTS [2007] l S.C.R.
A 200. Neither the Committee appointed by Parliament can be said to be
a 'Court' stricto sensu, nor it is bound by technical rules of evidence or
procedure. It is more in the nature of 'fact-finding' inquiry. Since the dignity,
decorum and credibility of Parliament was at stake, the Committee was
appointed which was required to act with a view to restore public faith,
confidence and honour in this august body without being inhibited by
B procedural impediments.
201. In this connection, it is profitable to refer to Mudgal. In that case
also, a Committee was appointed to inquire into charges leveled against a
member of Parliament. Certain directives were issued to the Committee.
C Directive No.2 issued by the Speaker was relevant and read thus:
"The Committee on the Conduct of a Member that has been
constituted is a Court of Honour and not a Court of Law in the
strict sense of the term. It is therefore not bound by technical rules.
It has to mould its procedure so as to satisfy the ends of justice
D and ascertain the true facts of the case. In Courts of Law, excessive
cross-examination eventually turns into a battle of wits and that
should not be the atmosphere of a Court of Honour. Here the effort
should be to simplify the procedure and to lay down clear rules
which ensure ascertainment of Truth, fairplay and justice to all
concerned. ! am, therefore, of opinion that normally the questions
E should be put by the Chairman and the Members but that does not
mean that the counsel appearing in the case is debarred from
putting any questions whatsoever. It is open to the Committee in
the light of particular circumstances, of which they alone are the
best judges, to permit the counsel to put questions to a witness
F with the permission of the Chairman. I feel that this should meet the
requirements of the present case."
(emphasis supplied)
OBSERVANCE OF NATURAL JUSTICE
G 202. It was also urged that the Committee had not given sufficient
opportunity to the petitioners to defend them and had not complied with the
principles of natural justice and fair play. It was submitted that the doctrine
of natural justice is not merely a matter of procedure but of substance and
any action taken in contravention of natural justice is violative of fundamental
H rights guaranteed by Articles 14, 19 and 21 of the Constitution. Reference
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.l 619
in this connection was made to Maneka Gandhi v. Union of India, [1978] A
1 SCC 248 : AIR (1978) SC 597; Kihoto Holohan and other decisions.
203. So far as principle oflaw is concerned, it is well-settled and cannot
be disputed and is not challenged. In my opinion, however, in the facts of
the case, it cannot successfully be contended that there is breach or non-
observance of natural justice by the Committee. Reading of the Reports
B
makes it clear that adequate opportunity had been afforded to the petitioners
> .. and thereafter the action was taken. Notices were issued to the members,
CDs were supplied to them, evidence of witnesses was recorded, defence
version was considered and 'findings and conclusions' were reached.
c
204. So far as the Committee constituted by the Lok Sabha is concerned,
it stated:
"JV Findings and Conclusions
32. The Committee viewed the VCDs comprising the relevant
D
video footage aired on the 'Aaj Tak' TV Channel on 12 December,
2005, perused the transcripts thereof, considered the written
statements submitted by each of the said ten members and their
oral evidence and also the oral evidence of Shri Aniruddha Bahal,
Kumar Badal and Ms. Sushasini Raj of Cobrapost.Com who E
conducted the 'Operation Duryodhan'.
33. The Committee note that the concerned representatives of
the Portal Cobrapost.Com namely Shri Aniruddha Bahal, Ms.
Suhasini Raj and Shri Kumar Badal approached the members posing
........ F
as representatives of a fictitious company, through a number of
middlemen, some of whom were also working as Private Secretaries/
Personal Assistants of the members concerned. They requested the
members to raise questions in Lok Sabha and offered them money
as a consideration thereof. Money was accepted by the members
directly and also through their Private Secretaries. They deposed G
on oath that in the money sequences shown on TV Channel Aaj
Tak there was no misrepresentation. They .have also given to the
•.> -; Committee the raw footage covering the situation before and after
the scene in question. While the Aaj Tak clippings have gone
through video cleaning and sound enhancement, corresponding H
620 SUPREME COURT REPORTS (20011 1 s:c.R
A thereto are extended versions of unedited raw footage of the tapes
to make it apparent that nothing had been misrepresented. Besides
this Shri Aniruddha Bahal also .submitted the "Original tapes of
money acceptance of whatever length the incident it may be".
There are 20-25 tapes and the total footage pertains to money
acceptance. Each tape is a complete tape showing the whole
B incident. In 'the course of her evidence Ms. Suhasini Raj has given
the details of the money given to the MPs directly as also through
the middlemen.
34. As against this evidence are the statements of all the said
c ten members. The Committee note that all the members have denied
the allegations leveled against them. The common strain in their
testimony is that the clippings are morphed, out of context and a
result of 'cut and paste'. The clippings of a few minutes, they
averred, do not present full victure and they needed full tapes
including the preceding and sµcceeding scenes to prove what they
D
termed as the falsehood thereof. They claimed that the entire
exercise was aimed to trap them and lower the prestige of the
Parliament.
35. The Committee have given serious consideration to the
E requests made by the ·said members for being provided the full
footage of video recordings, all the audio tapes and their request
for extension of time and being allowed to be represented through
their counsels.
In this context the Committee would like to bring it on record
F
that all the ten members while deposing before the Committee were
asked whether they would like to view the relevant video footage
so that they could point out the discrepancies therein if any. All
the members, refused to view the relevant video footage. The
Committee, therefore, feel that the requests by· the members for
G unedited and entire video footage would only lead to delaying the
consideration of the matter and serve no useful purpose.
36. The Committee having given in-depth consideration to the
evidence and statements of the representatives of Cobrapost.com
H and the members, are of the view that the evidence against the
4
RAJA RAM PAL 1·. THE HON'BLE SPEAKER. LOK SABHA [C.K. THAKKER. J.] 621
i members is incriminating. The Committee note that the A
Cobrapost.com representatives gave their statement on oath and
would be aware of the consequences of makir.g any false or
incorrect statement. They have also supplied the unedited copies
of original video situations where money changed hands. Transcripts
of the said videos have also been supplied. Had the Cobrapost.com
been reluctant in supplying the original unedited video tapes there B
could have been scope for some adverse inference about the
authenticity of the "money sequences" as telecast by Aaj Tak. But
that is not so.
37. The Committee are also of the view that the plea put forth C
by the said ten members that the video footages are doctored/
morphed/edited has no merit. If the members had accepted the offer
of the Committee to view the relevant footage and pointed out the
interpolated portions in the tape, there would have been justification
for allowing their plea for more time for examining the whole tapes.
Having seen the unedited raw footage of the Cobrapost.com D
pertaining to some of the members, the Committee have no valid
/ * reason to doubt the authenticity of the video footages.
38. In view of the totality of the facts and circumstances of the
case, the Committee are of the opinion that the allegations of
accepting money by the said ten members have been established.
E
The Committee further note that it is difficult to escape the conclusion
that accepting money had a direct connection with the work in
Parliament.
39. The Committee feel that such conduct of the said members F
was unbecoming of members of Parliament and also unethical. The
Committee are, therefore, of the view that their conduct calls for
strict action.
40. The Committee feel that stem action also needs to be taken
against the middlemen, touts and persons masquerading as Private G
Secretaries of members since they are primarily responsible for
inducing members to indulge in such activities.
41. The Committee note that in the case of misconduct or
contempts committed by its members, the House can impose these H
622 SUPREME COURT REPORTS [2007] I S.C.R
A punishments: admonition, reprimand, withdrawal from the House,
suspension from the service of the House, imprisonment, and
expulsion frpip tpe ~ouse."
The Committee, according to me, rightly made the following
observations:
B
"V Observations
42. The Committee feel that credibility of a democratic institution
like Parliament and impeccable integrity of its members are imperative
for the success of any democracy. In order to maintain the highest
c traditions in parliamentary life, members of Parliament are expected
to observe a certain standard of conduct, both inside the House as
well as outside it. It is well recognised that conduct of members
should not be contrary to the Rules or derogatory to the dignity
of the House or in any way inconsistent with the standards which
D Parliament is entitled to expect of its members.
43. The Committee wish to emphasise that ensuring probity
and standards in public life is sine qua non for carrying credibility
with the public apart from its own intrinsic importance. The waning
confidence of the people in their elected representatives can be
E restored through prompt action alone. Continuous fight against
corruption is necessary for preserving the dignity of the country.
The beginning has to be made with holders of high public offices
as the system is, and ought to be, based on morality. When the
Committee say so, they are also aware of and wish to put on record
F that a large number of leaders spend their life time in self-less
service to the public.
44. The Committee find it pertinent to note the following
observations made by the Committee of Privileges of Eleventh Lok
Sabha in their Report on 'Ethics, Standards in PubliC Life, Privileges,
G Facilities to members and related matters':
"Voicing the constituents' concerns on the floor of the Houst!
is the primary parliamentary duty of an elected representative. Any
attempt to influence members by improper means in their
H parliamentary conduct is a breach of privilege. Thus, offering to a
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J] 623
member a bribe or payment to influence him in his conduct as a A
member, or any fee or reward in connection with the promotion of
or opposition to, any Bill, resolution, matter or things submitted or
intended to be submitted to the House or any Committee thereof,
should be treated as a breach of Code of Conduct. Further, any
offer of money, whether for payment to an association to which a
member belongs or to a charity, conditional on the member taking
B
up a case or bringing it to a successful conclusion, is objectionable.
Offer of money or other advantage to a member in order to induce
him.to take up an issue with a Minister may also constitute a breach
of Code. Similarly, acceptance of inducements and gratification by
members for putting questions in the House or for promotion of or c
opposition to any Bill, resolution or matters submitted to the House
or any Committee thereof involves the privileges and contempt
proceedings.
The privilege implications apart, the Committee is constrained
to observe that such attempts and acts are basically unethical in D
nature."
45. The Committee are, therefore, deeply distressed over
acceptance of money by members /or raising parliamentary
questions in the House, because it is by such actions that the E
credibility of Parliament as an institution and a pillar of our
democracy is eroded. "
(emphasis supplied)
205. The Committee accordingly recommended (by majority of 4 : 1)
expulsion of all the ten members from the membership of Lok Sabha. F
206. The recommendation was accepted by the House and
consequential notification was issued on December 23, 2005 expelling all the
members from Lok Sabha with effect from afternoon of December 23, 2005.
207. So far as Rajya Sabha is concerned, the Committee on Ethics
G
recorded a similar finding and observed that it was convinced that the
member had accepted money for tabling questions in Rajya Sabha and the
pleas raised by him in defence were not well-founded.
The Committee rightly stated: H
624 SUPREME COURT REPORTS (2007] I S.C.R.
A "Parliamentary functioning is the very basis of our democratic
structure upon which the whole constitutional system rests.
Anything, therefore, that brings the institution of parliament into
disrepute is extremely unfortunate because it erodes public
confidence in the credibility of the institution and thereby weaken
the grand edifice of our democratic polity."
B
The Committee then observed:
"The Committee has applied its mind to the whole unfortunate
incident, gave full opportunity to the Member concerned to make
submissions in his defence and has also closely examined witnesses
c from Cobrapost.Com and Aaj Tak. The Committee has also viewed
the video tapes and heard the audio transcripts more than once.
After taking all factors into consideration, the overwhelming and
clinching evidence that the member has, in fact, contravened para
5 of the code of conduct for members of the Rajya Sabha and
D having considered the whole matter in depth, the committee, with
great sadness, has come to the conclusion that the member has
acted in a manner which has seriously impaired the dignity of the
house and brought the whole institution of parliamentary democracy
into disrepute. The Committee therefore recommend that Dr.
E Chhattrapal Singh Lodha be expelled from the membership of the
House as his conduct is derogatory to the dignity of the House and
inconsistent with the code of conduct which has been adopted by
the House."
208. The Committee thus recommended expulsion of Dr. Lodha. One
F member of the Committee suggested (clarifying that it was not a 'dissent
note'), to seek opinion of this Court under Article 143( I) of the Constitution.
209. The House agreed with the recommendation and expelled Dr.
Lodha. A notification was issued on December 23, 2005 notifying that Dr.
Lodha had ceased to be a member of Rajya Sabha with effect from afternoon
G of December 23, 2005.
ISSUE: WHETHER PRE-JUDGED
21 O. One of the grievances of the petitioners is that the issue had
.. -
H already been pre-judged even before a Committee was appointed by
RA.IA RAM PAL"· THE HON'BLE SPEAKER, LOK SABHA [CK. THAKKER. .I] 625
Parliament. In support of the said complaint, the counsel drew the attention A
of the Court to a statement by the 1-lon'ble Speaker of Lok Sabha on
December 12, 2005:
"Nobody would be spared".
211. An attempt was made that the Hon 'ble Speaker, even before the B
constitution of Committee had proclaimed that the petitioners would not be
• -+ s;:iared. Appointment of Committee, consideration of allegations and recording
of findings were, therefore, in the nature of an 'empty formality' to 'approve'
the tentative decision taken by the Hon'ble Speaker and for that reason also,
the action is liable to be interfered with by this Court. c
212. In my opinion, the contention has no force. The petitioners are not
fair to the Hon'ble Speaker. They have taken out one sentence from the
speech of Hon'ble Speaker of Lok Sabha and sought to create an impression
as if the matter had already been decided on the day one. It was not so. The
entire speech wherein the above sentence appears is part of the Report oi D
the Committee and is on record. It reads thus:
"Hon. Members, certain very serious events have come to my
notice as also of many other hon. Members. It will be looked into
with all importance it deserves. I have already spoken to and E
discussed with all Hon. Leaders of different Parties, including the
Hon. Leader of the Opposition and all have agreed that the matter
is extremely serious if proved to be correct. I shall certainly ask the
hon. Members to explain what has happened. In the meantime, I am
making a personal request to all of them 'please do not attend the
Session of the House until the matter is looked into and a decision
F
is taken' .... I have no manner of doubt that all sections of the House
feel deeply concerned about it. I know that we should rise to the
occasion and we should see that such .an event does not occur
ever in future and if anybody is guilty, he should be punished.
Nobody would be spared. We shall certainly respond to it in a G
manner which behoves as. Thank you very much."
(emphasis supplied)
213. It is thus clear that what was stated by the Hon'ble Speaker was
that "if anybody is guilty, he would be punished. Nobody would be spared". H
626 SUPREME COURT REPORTS [2007] 1 S.C.R
A In other words, an assurance was given by the Hon'ble Speaker to the
members of august body that an appropriate action will be taken without
considering the position or status of an individual member and if he is found
guilty, he will not be spared. The statement, in my judgment, is a responsible
one, expected of the Hon'ble Speaker of an august body of the largest
democracy. I, therefore, see nothing in the above statement from which it
B can be concluded that the issue had already been decided even before the
Committee was constituted and principles of natural justice were violated.
CASH FOR QUERY: WHETHER MERE MORAL WRONG
C 214. It was also urged that taking on its face value, the allegations
agajnst the petitioners were that they had accepted money for tabling of
questions in Parliament. Nothing had been done within the four walls of the
House. At the most, therefore, it was a 'moral wrong' but cannot fall within
the mischief of 'legal wrong' so as to empower the House to take any action.
According to the petitioners, 'moral obligations' can neither be converted
D
into 'constitutional obligations' nor non-observance thereof would violate
the scheme of the Constitution. No action, therefore, can be taken even if
it is held that the allegations were well-founded.
215. I am unable to uphold the contention. It is true that Indian
E Parliament is not a 'Court'. It cannot try anyone or any case directly, as a
court of justice can, but it can certainly take up such cases by invoking its
jurisdiction concerning powers and privileges.
216. Dealing with 'Corruption or impropriety', Sir Erskine May stated:
F
"The acceptance by a Member of either House of a bribe to
influence him in his conduct as a Member, or of any fee,
compensation or reward in connection with the promotion of or
opposition to any bill, resolution, matter or thing submitted or
intended to be submitted to either House, or to a committee, is a
G contempt. Any person who is found to have offered such a corrupt
consideration is also in contempt. A transaction of this character
is both a gross affront to the dignity of the House concerned and
an attempt to pervert the parliamentary process implicit in Members' I-
...
free discharge of their duties to the House and (in the case of the
H Commons) to the electorate".
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [CK THAKKER . .I] 627
217. Hilaire Burnett, ('Constitutional and Administrative law', Fourth A
Edn.; pp.571-72) also refers to "Cash for questions", which started in 1993.
lt was alleged that two members of Parliament, Tim Smith and Neil Hamilton
received payments/gifts in exchange for tabling parliamentary questions.
Both of them had ultimately resigned.
218. The rapidly accelerating and intensifying atmosphere of suspected
B
corruption-sleaze-in public life caused the Prime Minister to appoint a
judicial inquiry into standards of conduct in public life.
219. The author also observed; "The cash for questions affair also
raises issues concerning the press". c
220. The Committee went into the allegations against the officers of
Parliament and recommended punishment. It criticized the role of the Press
as well, but no action had been taken against the newspaper.
221. Solomon Commission and Nolan Committee also considered the
D
problem of corruption and bribery prevailing in the system and made certain
suggestions and recommendations including a recommendation to clarify
the legal position as to trial of such cases.
222. I may state that I am not expressing ar,y opinion one way or the E
other on the criminal trial of such acts as also the correctness or otherwise
of the law laid down in P. V. Narsimha Rao. To me, however, there is no
doubt and it is well-settled that in such cases, Parliament has power to take
up the matter so far as privileges are concerned and it can take an
appropriate action in accordance with law. If it feels that the case of 'Cash F
for query' was made out and it adversely affected honesty, integrity and
dignity of the House, it is open to the House to attempt to ensure restoration
of faith in one of the pillars of democratic polity.
223. I am in agreement with what has been stated by Mc Lachlin, J. (as
she then was) in Fred Harvey, already referred to: G
- "If democracies are to survive, they must insist upon the integrity
of those who seek and hold public office. They cannot tolerate
. corrupt practices within the legislature. Nor can they tolerate
electoral fraud. lf they do, two consequences are apt to result. First, H
628 SUPREME COURT REPORTS [2007] I S.C.R.
A the functioning of the legislature may be impaired. Second, public
confidence in the legislature and the govemmentmay be undermined.
r -
No democracy can afford either".
(emphasis supplied)
B DOCTRINE OF PROPORTIONALITY
224. It was contended that expulsion of a member of Parliament is a
drastic step and even if the House possesses such power, it cannot be
lightly restored to. It is against the well established principle of
C proportionality. According to the petitioners, such a step would do more
harm to the constituency than to the member in his personal capacity. It was,
therefore, submitted that proper exercise of power for misbehaviour of a
member is to suspend him for the rest of the day, or at the most, for the
remaining period of the session. If a folly has been committed by some
members, the punishment may be awarded to them but it must be
D commensurate with such act which should not be severe, too harsh or
unreasonably excessive, depriving the constituency having its representation
in the House.
225. Now, it cannot be gainsaid that expulsion of a member is a grave
E measure and normally, it should not be taken. I also concede that Palriament
could have taken a lenient view as suggested by the learned counsel for the
petitioners. But it cannot be accepted as a proposition of law that since such
action results in deprivation of constituency having its representation in the
House, a member can never be expelled. Ifrepresentation of the constituency
is taken to be the sole consideration, no action can be taken which would
F
result in absence of representation of such constituency in the House. Such
interpretation would make statutory provisions (the RepresP.ntation of the
People Act, 1951) as also constitutional scheme (Articles 84, 102, 190, 191,
192, Tenth Schedule, etc.) non-workable, nugatory and otiose. If a member
is disqualified or has been convicted by a competent court, he has to go
G and at least for the time being, till new member is elected, there is no
representation of the constituency in the House but it is inevitable and
cannot be helped.
226. There is one more aspect also. Once it is conceded that an action
H of suspension of a member can be taken (and it was expressly conceded),
RAJA RAM PAL"· THE HON'BLE SPEAKER, LOK SABHA [CK THAKKER, J] 629
I fail to undc stand why in principle, an action of expulsion is impossible or A
illegal. In a given case, such action may or may not be lawful or called for,
but in theory, it is not possible to hold that while the former is permissible,
the latter is not. If it is made referable to representation of the constituency,
then as observed in Raj Narain, withdrawal of a member from the House
even for a brief period is a serious matter both for the member and his
constituency. Important debates and votes may take place during his
B
absence even if the period be brief and he may not be able to present his
view-point or that of the group or that of the constituency he represented .
., r
It is, however, in the nature of disciplinary or punitive action for a specific
parliamentary offence, namely, disorderly behaviour. Moreover, ifthe House
has a right to expel a member, non-representation of the constituency is C
merely a consequence, nothing more. "If the constituency goes
unrepresented in the Assembly as a result of the act of an elected member
inconsistent with the dignity and derogatory of the conduct expected of an
elected member, then it is the voters who alone will have to take the blame
for electing a member who indulges in conduct which is unbecoming of an D
elected representative".
POSSIBILITY OF MISUSE OF POWER BY PARLIAMENT
227. Finally, it was strenuously urged that Parliament/ State Legislature
should not be conceded such a drastic power to expel a member from the E
House. As Maintland has stated, it is open to Parliament to expel a member
on the ground of 'ugly face'. Even in such case, no Court of Law can grant
relief to him. Considering ground-realities and falling standards in public life,
such an absolute power will more be abused than exercised properly.
F
228. I am unable to accept the submission. Even in England, where
Parliament is sovereign and supreme and can do everything but 'make
woman a man and a man a woman', no member of Parliament has ever been
expelled on the ground of 'ugly face'. And not even a single incident has
been placed before this Court to substantiate the extreme argument. Even
Maitland himself has not noted any such instance. On the contrary, he had G
admitted that normally, the power of expulsion can be exercised for illegalities
or misconduct of a serious nature.
229. Again, it is well-established principle oflaw that the mere possibi\ity
or likelihood of abuse of power does not make the provision ultra vires or H
630 SUPREME COURT REPORTS [2007] I S.C.R
A bad in law. There is distinction between existence (or availability) of power
and exercise thereof. Legality or otherwise of the power must be decided by
considering the nature of power, the extent thereof, the body or authority
on whom it has been conferred, the circumstances under which it can be
exercised and all other considerations which are relevant and germane to the
exercise of such power. A provision of law cannot be objected only on the
B ground that it is likely to be misused.
230. In State of Rajasthan v. Union of India, [1977] 3 SCC 592, 658 :
AIR (1977) SC 1361 dealing with an identical contention, Bhagwati, J. (as His
Lordship then was) stated:
c "It must be remembered that merely because power may some time
be abused, is no ground for denying the existence of power. The
wisdom of man has not yet been able to conceive of a Government
with power sufficient to answer all its legitimate needs and at the
same time incapable of mischief'.
D
(emphasis supplied)
[see also Ajit Kumar Nag v. Indian Oil Corporation, [2005] 7 SCC
764].
E 231. I am reminded what Chief Jllstice Marshall stated before about two
centuries in Providence Bank v. Alphens Billings, 29 US 504 [1830]: 7 Law
Ed939:
"This vital power may be abused; but the Constitution of the
United States was not intended to furnish the corrective for every
F abuse of power which may be committed by the State Governments.
The interest, wisdom, and justice of the representative body, and
its relations with its constituents furnish the only security where
there is no express contract against unjust and excessive taxation,
as well as against unwise legislation generally. "
G (emphasis supplied)
CONCLUDING REMARKS
232. I have already held that the decisions taken, orders made, findings
recorded or conclusions arrived at by Parliament/State Legislature are
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [CK THAKKER. J] 631
·~ subject to judicial review, albeit on limited grounds and parameters. If, A
therefore, there is gross abuse of power by Parliament/ State Legislature, this
Court will not hesitate in discharging its d1:1ty by quashing the order or
setting aside unreasonable action.
233. I am reminded what Justice Sarkar stated in Keshav Singh:
B
"I wish to add that I am not one of those who feel that a Legislative
Assembly cannot be trusted with an absolute power of committing
for contempt. The Legislatures have by the Constitution been
expressly entrusted with much more important things. During the
fourteen years that the Constitution has been in operation, the C
Legislatures have not done anything to justify the view that they
do not deserve to be trusted with power. I would point out that
though Art. 211 is not enforceable, the Legislatures have shown an
admirable spirit of restraint and have not even once in all these
years discussed the conduct of Judges. We must not lose faith in D
our people, we must not think that the Legislatures would misuse
the powers given to them by the Constitution or that safety lay
only in judicial correction. Such correct may produce friction and
cause more harm than good. In a modem State it is often necessary
for the good of the country that parallel powers should exist in
different authorities. It is not inevitable that such powers will clash. E
It would be defeatism to take the view that in our country men
would not be available to work these powers smoothly and in the
best interests of the people and without producing friction. I
sincerely hope that what has happened will never happen again
and our Constitution will be worked by the different organs of the F
State amicably, wisely, courageously and in the spirit in which the
makers of the Constitution expected them .to act".
234. I am in whole-hearted agreement with the above observations. On
my part, I may state that I am an optimist who has trust and faith in both
these august units, namely, Legislature and Judiciary. By and large, G
constitutional functionaries in this country have admirably performed their
functions, exercised their powers and discharged their duties effectively,
efficiently and sincerely and there is no reason to doubt that in coming years
also they would continue to act in a responsible manner expected of them.
I am equally confident that not only all the constituents of the State will keep H
632 SUPREME COURT REPORTS (2007] 1 S.C.R.
A themselves within the domain of their authority and will not encroach,
trespass or overstep the province of other organs but will also act in
preserving, protecting and upholding the faith, confidence and trust reposed
in them by the founding Fathers of the Constitution and by the people of
this great country by mutual regard, respect and dignity for each other. On
the whole, the situation is satisfactory and I see no reason to be disappointed
B for future.
235. With the above observations and pious hope, I dismiss the Writ
Petition as also all transferred cases, however, without any order as to costs.
C RA VE END RAN, J.:
"Those three great institutions - the Parliament, the Press (Media)
and the Judges - are safeguards of justice and liberty, and they
embody the spirit of the Constitution."
D
- Lord Denning
have had ·the privilege of reading the exhaustive and erudite
judgment of the learned Chief Justice and the illuminating concurring
judgment of learned brother Thakker J., upholding the expulsion of ten
E members of Lok Sabha and one member of Rajya Sabha. I respectfully
disagree.
Factual Background :
2. On 12.12.2005, a TV News Channel -Aaj Tak showed some video-
F
footage of scime persons, alleged to be members of Parliament accepting
money for tabling questions or raising issues in the House, under the
caption 'operation Duryodhana' ("Cash for Questions"). On the same day
when the House met, the Hon'ble Speaker made the following statement :-
G "Hon. Members, certain very serious events have come to my
notice as also of many other Hon. Members. It will be looked into
with all importa~e it deserves. I have already spoken to and
discussed with all Hon. Leaders of different parties, including the
Hon. Leader of the Opposition, and all have agreed that the matter
1•
I
H is extremely serious if proved to be correct. I shall certainly ask the
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 633
Hon. Members to explain what has happened. In the meantime, I am A
making a personal request to all them 'please do not attend the
Sessions of the House until the matter is looked into and a decision
is taken'....... I have no manner of doubt that all sections of the
House feel deeply concerned about it. I know that we should rise
to the occasion and we should see that such an event does not
occur ever in future and if anybody is guilty, he should be B
punished. Nobody would be spared. We shall certainly respond to
it in a manner which behaves us. Thank you very much."
3. On the same day, at about 6 P.M., the Hon'ble Speaker made another
statement on the issue, announcing the constitution of an Enquiry Commit- C
tee consisting of five Parliamentarians. Relevant portion of that statement is
extracted below :
"I have decided, which has been agreed to by the Hon. Leaders,
that all the concerned Members will be asked to submit their
individual statements/explanations regarding the allegations made D
against them today on the TV Channel Aaj Tak before 10.30 a.m.
on 14th December, 2005. The statements/explanations given by
those members will be placed before the Enquiry Committee con-
sisting of the following Hon. Members -
E
1. Shri Pawan Kumar Bansal (Chairman)
2 Prof. Vijay Kumar Malhotra
3. Md. Salim
- ...
4. Prof. Ram Gopal Yadav
F
5. Thiru C. Kuppusami
The Committee is requested to give its Report by 4 p.m. on 21st
December, 2005. The Committee is authorized to follow its own G
procedure. The Report will be presented before the House for its
consideration. "
. ...
4. 'fhe Lok Sabha Secretariat sent communications dated 12.12.2005 to
the ten members calling for their comments in regard to the improper conduct H
634 SUPREME COURT REPORTS [2007] I S.C.R.
A shown in the video footage. They were also instructed not to attend the
sitting of the House till the matter was finally decided. The members
submitted their responses and denied any wrong doing on their part. The
Speaker secured VCDs containing the video footage showing 'improper
conduct' from the News Channel. The ten members were supplied copies
thereof. The Enquiry Committee examined on oath Shri Aniruddha Bahl, Ms.
B Suhasini Raj and Shri Kumar Badal of the Portal "Cobrapost.Com" who had
carried the sting operation. The Committee viewed all the VCDs containing
the relevant video footage as also the unedited raw video footage and
perused the transcripts. The ten members alleged that the video tapes were
morphed/manipulated, but, however, refused to view the video clippings in
C the presence of the Committee and point out the portions which according
to them were morphed/manipulated. They were not given any opportunity
to cross-examine the sting operators, nor granted copies of the entire
unedited video footage and other documents requested by them.
5. After considering the said material, the committee submitted its
D report dated 22.12.2005 to the Speaker. It was tabled in the House on the
same day. The said report contained the following findings :
"(a) The representatives of the Portal "Cobrapost.com" namely
Shri Aniruddha Bahal, Ms. Suhasini Rajand and Shri Kumar
Badal approached the members posing as representatives of
E the fictitious company, through a number ofmiddlerr:en, some
of whom were working as Private Secretaries/Personal Assist-
ants of the members concerned. They requested the members
to raise questions in Lok Sabha and offered them money as
-
consideration. Money was accepted by the members directly
F or through their Secretaries/Assistants. Acceptance of money ~
by the ten members was thus established.
(b) The plea put forth by the ten members that the video footages
were morphed/manipulated has no merit. Their conduct was
unbecoming of members of Parliament, unethical and called
G for strict action.
(c) Stern action also needs to be taken against the middlemen,
touts and persons masquerading as Private Secretaries of I 1
members since they are primarily responsible for inducting
H members of Parliament into such activities.
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 635
The Committee was of the view that in the case of misconduct by the A
members or contempt of the House by the members, the House can impose
any of the fortowing punishments : (i) admonition; (ii) reprimand; (iii)
withdrawal from the House; (iv) suspension from the House; (v) imprison-
ment; and (vi) expulsion from the House. The Committee concluded that
continuance of the ten persons as members of Lok Sabha was untenable B
and recommended their expulsion."
.. i
On 23.12.2005, the Leader of the House moved the following Motion in the
House:
"That this House having taken note of the Report of the C
Committee to inquire into the allegations of improper conduct on
:he part of some members, constituted on 12th December, 2005,
accepts the finding of the Committee that the conduct of the ten
members of Lok Sabha namely, Shri Narendra Kumar Kushawaha,
Shri Annasaheb M. K. Patil, Shri Manoj Kumar, Shri Y. G. Mahajan, D
Shri Pradeep Gandhi, Shri Suresh Chandel, Shri Ramsevak Singh,
Shri Lal Chandra Kol, Shri Rajaram Pal and Shri Chandra Pratap
Singh was unethical and unbecoming of members of Parliament and
their continuance as members of Lok Sabha is untenable and
resolves that they may be expelled from the membership of Lok
Sabha."
E
An amendment to the Motion for referring the matter to the Privileges
Committee, moved by a member (Pro£ Vijay Kumar Malhotra), was rejected.
After a debate, the Motion was adopted by voice vote. As a consequence
.. ' on the same day, a notification by the Lok Sabha Secretariat was issued F
notifying that 'consequent on the adoption of a Motion by the Lok Sabha
on the 23rd December, 2005 expelling the ten members from the membership
of the Lok Sabha', the ten members ceased to be members of the Lok
Sabha, with effect from the 23rd December, 2005 (afternoon).'
G
7. Similar are the facts relating to Dr. Chhattrapal Singh Lodha, Member
of Rajya Sabha. On 12. 12.2005, the Chairman of the Rajya Sabha made a
statement in the House that the dignity and prestige of the House had
suffered a blow by the incidents shown on the TV Channel, that it was
necessary to take action to maintain and protect the integrity and credibility
H
636 SUPREME COURT REPORTS [2007] I S.C.R.
A of the House, and that he was referring the episode to the Ethics Committee
for its report. On the same day, Ethics Committee held a meeting and took
the view that the member had prima facie contravened Part V of the Code
of Conduct which provided :
"Members should never expect or accept any fee, remuneration or
B benefit for a vote given or not given by them on the floor of the
House, for introducing a Bill, for moving a resolution or desisting
t ..
from moving a resolution, putting a question or abstaining from
asking a question or participating in the deliberations .of the house
or a Parliamentary Committee."
c
It submitted a preliminary report recommending suspension pending final
decision and giving of an opportunity to Dr. Lodha to explain his position.
The said report was accepted. By letter dated 13.12.2005. Dr. Lodha was
required to give his comments by l P.M. on 15.12.2005. Thereafter the
Committee gave a report holding that the member had contravened Part V
D of the Code of Conduct and had acted in a manner which seriously impaired
the dignity of the Hous.e and brought the whole institution of Parliamentary
democracy into disrepute. The Committee recommended Dr. Lodha to be
expelled from the membership of the House. On 23.12.2005, the Chairman of
the Ethics Committee moved that its final report be accepted. After debate,
E the House agreed with the recommendation in the report by voice vote. As
a consequence, the ~ecretary General of Rajya Sabha issued a notification
dated 23.12.2005 declaring that Dr. Lodha had ceased to be a member of the
Rajya Sabha with effect from that date.
F The Issue:
8. The petitioners contend that there can be cessation of membership
of either House of Parliament only in the manner provided in Articles 101
and 102; and that cessation of membership by way of expulsion is alien to
the constitutional framework of Parliament. It is submitted that a person can
G be disqualified for being a member of Parliament on the ground of corrup-
tion, only upon conviCtion for such corruption as contemplated under
section 8 of Representation of People Act, 1951 read with clause ( 1)(e) of
Article 102. It is submitted that there can be no additions to grounds for
cessation of membership under Articles 10 l and 102, unless it is by a law
H made by Parliament as contemplated under Article 102(l)(e), or by an
RAJA RAM PAL r. THE HON'BLE SPEAKER, LOK SAHHA [RA VEENDRAN, J] 637
amendment to the Constitution itself. It is further submitted that reading the A
power of expulsion, as a part of parliamentary privilege under Article l 05(3)
is impermissible. It is, therefore, submitted that Parliament has no power of
expulsion (permanent cessation of membership). On the other hand, the
Union of India and the Attorney General assert that Parliament has such
power. The assertion is based on two premises. First is that Article 10 l
relating to vacancies is not exhaustive. The Second is that the power of B
Parliament to expel a member is a part of the powers, privileges and
immunities conferred on the Parliament, under Article 105(3), and it is
distinct and different from 'disqualifications' contemplated under Article
102.
c
9. When the incident occurred, the response of the Hon. Speaker and
the Parliament, in taking prompt remedial action, against those who were
seen as betraying the confidence reposed by the electors, showed their
concern to maintain probity in public life and to cleanse Parliament of
elements who may bring the great institution to disrepute. But, howsoever D
bona fide or commendable the action is, when it is challenged as being
unconstitutional, this Court as the interpreter and Guardian of the Constitution
has the delicate task, nay the duty, to pronounce upon validity of the action.
There is no question of declining to or abstaining from inquiring into the
issue merely because the action is sought to be brought under the umbrella
of parliamentary privilege. The extent of parliamentary power and privilege, E
and whether the action challenged is in exercise of such power and privilege,
are also matters which fall for determination of this Court. In this context,
I may usefully refer to the words ofBhagwati, J. (as His Lordship then-was)
in State of Rajasthan v. Union of India, AIR (1977) SC 1361:
F
"But merely because a question has a political complexion, that by
itself is no ground why the Court should shrink from performing its
duty under the Constitution if it raises an issue of constitutional
determination ...... ., the Court cannot fold its hands in despair and
declare "Judicial hands off." So long as a question arises whether
an authority under the constitution has acted within the limits of G
its power or exceeded it, it can certainly be decided by the Court.
Indeed it would be its constitutional obligation to do so ...... This
Court is the ultimate interpreter of the Constitution and to this
Court is assigned the delicate task of determining what is the power
conferred on each branch of Government, whether it is limited, and H
638 SUPREME COURT REPORTS [2007] I S.C.R.
A if so, what are the limits and whether any action of that branch
transgresses such limits. It is for this Court to uphold the consti-
tutional values and to elz/orce the constitutional limitations. That
is the essence of the rule of law."
Where there is m"an.ifestly unauthorized exercise of power under
B the Constitution, it is the duty of the Court to intervene. Let it not
be forgotten, that to this Court as much as to other branches of
Government, is committed the conservation and furtherance of
democratic values. The Court's task is to identify those values in
the constitutional plan and to work them into life in the cases that
c reach the Court..... The Court cannot and should not shirk this
responsibility.... "
[emphasis supplied]
D IO. The question before us is not whether the petitioners are guilty of
·having taken money for asking questions, or raising issues in the Parliament
The question is, irrespective of whether they are guiltj or not, Parliament t
has the power to expel them, thereby effecting permanent cessation of their
membership. On the contentions raised, the questions that therefore arise for
consideration are :
E
"(i) Whether Article I 0 I and I 02 are exhaustive in regard to the
modes of cessation of membership of Parliament; and whether
expulsion by the House, not having been specified as a mode
of cessation of membership, is impermissible.
F ~
(ii) If the an~wer to the . above question is in the negative,
whether.the Parliament has the power to expel its members
(
(resulting in permanent cessation of membership) as a part of
its powers, privileges and immunities under Article 105(3)."
·G Relevant Principles :
11. I may first refer to the basic principles relevant for the purpose of
constitutional interpretation in the context of the first question ..
H l --
Unlike British Parliament, Indian Parliament is not saver-
RAJA RAM PAL•- THE HON'BLE SPEAKER. LOK SABHA [RA VEENDRAN, J J 639
_, eign It is the Constitution which is supreme and sovereign A
and Parliament will have to act _within, the limitotions
imposed by the Constitution :
12. There is a marked distinction between British- Parliament and the
- Indian Parliament Briiish Parliament is sovereign. One of the hallmarks of
such sovereignty is the right to make or_ unmake any Jaw which no court or B
body or person can set aside or override. _On the other hand, the Indian
Parliament is a creature of the Constitution and its powers, privileges and_
obligations are spe_cified and limited by· the <;:onstitution. A legislature
created by a written Constitution must act within the ambit of its power as
defined by the Constitution and subject to the limitations prescribed by the C
Constitution. Any act or action of the Parliament contrary to the constitu-
tional limitations will be void.
13. In re Art. 143, Constitution of India and Delhi laws Act, AIR
( 1951) SC 332, this Court observed thus : -
D
"There is a basic difference !-Je~een ~ Indian and the British
Parliament in this respect: There is no constitutional limitation to
restrain the British Parliament from assigning its powers where it
will, but the Indian Parliament qua legislative body is fettered by
_a written constitution and it does not possess the sovereign E
powers of the British Parliament. The limits of the powers of
delegation inJndia would therefore have to be ascertained as a
maller of construction from the provisions of the_ Constitution
itself-'.'
-. {emphasis supplied]
F
In Special Reference No.I of 1964 UP Assembly Case, [1965) I SCR
413; a Bench of seven Judges observed thus :
"Jn England, Parliament is sovereign; and in the words of Dicey, the G
th_ree distinguishing features of the principle of_Parliamentary Sov-
-ereignty -are that Parliament has the right to make or unmake any
law whatever; that no person or body is recognized by the Jaw of
England is having a right to override or set aside the legislation of
Parliament; and that the right or power of P;.,liament extends to
.H
SUPREME COURT REPORTS (2007] I S.C.R.
. -r
~/
A every part of the Queen's dominion. On the other hand, the
essential characteristic of federalism· i~ "the distribution of limited
executive, legislative and judicial authority among bodies which are
co-ordinate with and independent of each others". The supremacy
of the constitution is fundamental to· the existence of a federal
State in order to prevent either the legislature of the federal unit or
B those of. the member States from destroying or impairing that
delicate balance of power which satisfies the particular require-
ments of States which are desirous of union, but not prepared to
merge their individuality in a unity. This supremacy of the consti-
tution is protected by the authority of an independent judicial
c body to act as the interpreter of a scheme of distribution of
powers.
"Therefore, it is necessary to remember that though our Legisla·
tures have plenary powers, they function within the limits pre-
scribed by the material and relevant provisions of the Constitution ....
D
Jn a democratic country governed by a written Constitution, it is
the Constitution which is supreme and soverelgn.... Therefore,
there can be no doubt that the sovereignty which can be claimed
by the Parliament in England, cannot be claimed by any Legislature
in India in the literal absolute sense .... We feel no difficulty in
.E holding that the decision about the construction of Article 194(3)
must ultimately rest exclusively with the Judicature of this country."
"Article 212(1) seems to make it possible for a citizen to call in
question in the appropriate court oflaw the validity of any proceed-
F ings inside the legislative chamber if his case is that the said
proceedings suffer not from mere irregularity of procedure, but from
an illegality. If the impugned procedure is illegal and unconstitu-
tional, it would be open to be scrutinized in a court of law, though
such scrutiny is prohibited if the complaint against the procedure
G
is no more than this that the procedure was irregular." '
[emphasis supplied]
Jn Kesavananda Bharati v. State of Kera/a, [1973] 4 SCC 225, it was ,..
observed that the Constitution being supreme, all the organs __, owe their
existence to it. Each organ has to. function within the four comers of the
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 641
1 constitutional provisions. The doctrine of parliamentary sovereignty as it A
obtains in England does not prevail in India except to the extent provided
by the Constitution. The judiciary is entrusted the task of construing the
provisions of the Constitution and safeguarding the fundamental rights.
Subsequently, in State of Rajasthan (supra), this Court reiterated :
B
"It is necessary to assert in the clearest terms, particularly in the
~
context of recent history, that the Constitution is supreme lex, the
paramount law of the land, and there is no department or branch
of Government above or beyond it. Every organ of Government, be
it the executive or the legislature or the judiciary, derives its c
authority from the Constitution and it has to act within the limits
of its authority. "
[emphasis supplied]
In Sub-Committee on Judicial Accountability v. Union of India, [1991] 4
D
1 SCC 699, a Constitution Bench of this Court held :
"But where, as in this country and unlike in England, there is a
written Constitution which constitutes the fundamental·apd in that
) sense a "higher law" and acts as a limitation upon the legislature E
and other organs of the State as grantees under the constitution,
the usual incidents of parliamentary sovereignty do not obtain and
the concept is one of 'limited government'. Judicial. Review is,
indeed, an incident of and flows from this concept of the fundamen-
tal and the higher law being the touchstone of the limits of the
F
powers of the various organs of the State which derive power and
authority under the Constitution and that the judicial wing is the
interpreter of the Constitution and, therefore, of the limits of
.. authority of the different organs of the State. It is to be noted that
the British Parliament with the Crown is supreme and its powers are
unlimited and courts have no power of judicial review of legisla- G
tion."
"In a federal set up, the judiciary becomes the guardian of the
Constitution.... The interpretation of the Constitution as a legal
instrument and its obligation is the function of the Courts." H
642 SUPREME COURT REPORTS [2007] 1 S.C.R.
.,..,.
(
A II. When a Statute, having made specific provisions for certain
matters, also incorporates by reference an earlier statute, to avoid
reproduction of the matters provided for in the earlier statute,
then what is .deemed to f?e incorporated by such reference, are
only those provisions of the earlier statute which relate to matters
not expressly provided in the latter statute, and which are com-
B patible with the express provisions of the latter statute. "
14. The legislative device of incorporation by reference is a well-known
device where the legislature, instead of repeating the provisions of a
particular statute in another statute, incorporates such provisions in the
c latter statute by reference to the earlier statute. It is a legislative device
adopted for the sake of convenience in order to avoid verbatim reproduction
of the provisions of the earlier statute into the later. [See MaJy Roy v. State
of Kera/a, [1986] 2 SCC 209]. lord Esher M. R. stated the effect of
incorporation in Clarke v. Bradlaugh, (1881) (8) QBD 63] thus:-
D
"If a subsequent Act brings into itself by reference some of the
clauses of a former Act, the legal effect of that, as has often been t-
held, is to write those sections into the new Act as if they had been
actually written in it with the pen-, or printed on it."
E 15. In UP. Assembly case (supra), this Court while considering Article
194(3), identical in content to Article 105(3) of the <;:onstitution, referred to
its scope thus :
"Mr. Seervai's argument is that the latter part of Art. 194(3)
expressly provides that all the powers which vested in the House
F
of Commons at the relevant time, vest in the House. This broad
claim, however, cannot be accepted in its entirety, because there
are some powers which cannot obviously be claimed by the House.
Take the privilege of freedom of access which is exercised by the
House of Commons as a body and through its Speaker "to have
...
G at all times the right to petition, counsel, or remonstrate with their
Sovereign through their chosen representative and have a favour-
able construction placed on his words was justly regarded by the
Commons as fundamental privilege." It is hardly necessary to point I
out that the House cannot claim this privilege. Similarly, the
H privilege to pass acts of attainder and the privilege of impeachment
RAJA RAM PAL l'. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 643
cannot be claimed by the House. The House of Commons also A
claims the privilege in regard to its own Constitution. This privilege
is expressed in three ways, first by the order of new writs to fill
vacancies that arise in the Commons in the course of a Parliament;
secondly, by the trial of controverted elections; and thirdly, by
determining the qualification of its members in cases of doubt. This
privilege again, admittedly, cannot be claimed by the House. There-
B
fore, it would not be correct to say that all power and privileges
which were possessed by the House of Commons at the relevant
time can be claimed by the House."
16. In Chhabildas Mehta v. The Legislative Assembly, Gujarat State, c
1970 Guj. LR 729, a Division Bench of Gujarat High Court speaking through
Chief Justice Bhagwati (as he then was) held :
"The problem before us is whether the privilege can be read in
Article 194(3). It is no answer to this problem to say 'read the
D
privilege in Article 194(3) and then harmonise it with the other
provisions'. If the privilege is inconsistent with the scheme of the
Constitution and its material provisions, it cannot and should not
be read in Article 194(3). The presumed intention of the Consti-
tution-makers in such a case would be that such a privilege should
not belong to the House of the Legislature." E
[Emphasis supplied]
17. In Hardwari Lal v. The Election Commission of India, (1977) 2
Punj. & Har. 269, the validity of expulsion of a member of legislature came
F
up for consideration. After an elaborate discussion, the majority found that
the power of British House of Commons, to expel any of its members, flowed
from its privilege to provide for and regulate its own constitution. It was held
that such power of expulsion was not available to the Indian Parliament,
.. having regard to the fact that the written constitution makes detailed
provision for the constitution of the Parliament, elections, vacation of seats G
and disqualifications for membership. Sandhawalia, J. (as he then was)
speaking for the majority of the Full Bench observed thus :
"It was submitted that in view of the language of Article 194(3)
each and every parliamentary privilege enjoyed by the House of H
644 SUPREME COURT REPORTS [2007] I S.C.R.
A Commons without any exception whatsoever must be deemed as if (
it were in fact written with pen and ink into the Constitution itself.
According to the respondents, one must at the outset unreservedly
read every power, privilege and immunity of the House of Com-
mons within clause (3) and consequently exercisable by the State
Legislatures in India as well. However, having done that, one
B should thereafter proceed to scrutinize the remaining provisions of
th1 Constitution and if some power, privilege or immunity directly
conflicts with or contravenes some express or special provision
thereof then the same may be eroded on the ground that it is not
possible for the House to exercise the same. Nevertheless it was
c dogmatically stated that even in the case of a direct or irreconciliable
conflict, the privilege must be read into the Constitution and should
not be deemed as necessarily deleted or excluded therefrom. In
short, the learned Advocate-General for a while canvassed for the
acceptance of what may be conveniently called as 'pen and ink
theory' for the construction of Article 194(3) of the Constitution.
D
(23 7) On the other hand, the petitioner forthrightly argued that
some of the parliamentary privileges of the House of Commons by
their very nature are so inherently alien to our Republican Consti-
tution that they can never possibly be deemed to be part thereof....
E It was submitted that the only reasonable and consistent canon of
construction in this situation was that all the parliamentary privi-
leges of the House of Commons which in their very essence and
by their intrinsic nature were patently contradictory to the Indian
Constitution, then these must necessarily be excluded therefrom at
F the very threshold.
(238) I believe, that the fallacy of the argument on behalf of the
respondent is highlighted, the moment one particularizes the same
and refers to some of the well-known and admitted privileges of the
House of Commons. It was conceded before us that not one but
G innumerable parliamentary powers and privileges of the House of
Commons were inextricably linked with the Sovereign, that is, King
or Queen of England, as the case may be. Can one imagine that the
word 'King' or 'Queen' mentioned therein should be deemed to
have been written in pen and ink in our Constitution also when its
H very preamble solemnly declares that the people of India have
-
RAJA RAM PAL v. THE HON'BLE SPEAKER. LOK SABHA [RA VEENDRAN, J.] 645
.., constituted themselves into a Sovereign, Socialist Secular Demo- A
cratic Republic ? In particular, one may consider the accepted
parliamentary privilege of the freedom of access to the Sovereign
including a right at all times to petition, counsel or remonstrate with
the King through their chosen representatives. This is admitted on
all hands to be a parliamentary privilege which was considered
fundamental by the House of Commons and undoubtedly enjoyed
B
by it. Can one for a moment conceive that the Republican Consti-
tution o(India would incorporate this privilege for its State Legis-
latures. How can even one imagine that the founding fathers in the
Constituent Assembly had intended to write such a privilege also
into our Constitution and to deem it as part and parcel thereof? If c
so, to whom were the State Legislatures supposed to petition and
with whom were they to counsel or remonstrate with through their
chosen representative.s in_ the obvious absence of even the insti-
tution of the Monarchy herein ?
D
(239) Similarly not one but there are tens of parliamentary privileges
of the House of Commons which are closely linked with the
hereditary House of Lords in England. In particular the power of the
House of Lords to punish the contemners of the House by passing
judgment as a Court was undoubted. Can one read or even imagine
a House of Lords within our polity when the very Constitution E
it~elf djsapproves even a rnference to any titles on the basis of
heredity and blood alone? Other examples of this nature could
perhaps be multiplied ad infinitum but it would perhaps suffice to
mention two other undoubted privileges of the House of Commons.
It is not in dispute that the said House had a relatively unrestricted F
power of impeachment whereby it acted as the prosecutor whilst
the House of Lords was the final Court or adjudicator for the same.
Would it be possible to assume within our Constitution any .such
general parliamentary privilege of impeachment (apart from those
which the Constitution in tenns confers) or by analogy to place the
Rajya Sabha in the peculiar historical position which the House of G
Lords as the final Court in England? Again closely inter-related to
this general power of impeachment in the House of Commons was
the privilege to pass Acts or Attainder which in terms and effect
meant an unrestricted right to pass judgment during the course of
impeachment. Can one for a moment read such a power or privilege H
646 SUPREME COURT REPORTS [2007] 1 S.C.R
{
,....
A in favour of the State Legislatures in India?
(240) I am of the view that it is essentially tautologous to first read
something into the Constitution and in the next breath to proceed
to erase the same. This exercise becomes inevitable, if, as sug-
gested on behalf of the respondents, one is to first read the King,
B the Queen, the House of Lords or the Acts of Attainder into the
Constitution and thereafter to proceed to nullify them on the plain
ground that by the very nature of things they cannot form part of
a Republican Constitution. The pen and ink theory, therefore, in
effect becomes indeed a pen, ink and India Rubber theory whereby
c one first writes something entirely alien to the Constitution within
it and the next moment proceeds to rub it off. ft is well-settled that
when a statute includes something in it by a reference to another
provision then only that can be deemed to be included which is
compatible with the parent provision. To my mind, therefore, the )
plain method of construing Article 194(3) is the usual and the
D
settled one of not reading something into it which is glaringly
anomalous, unworkable and irrational. "
[emphasis supplied]
E Ill. Decisions of foreign courts, though useful to understand the
different constitutional philosophies and trends in law, as also
common law principles underlying Indian Statutes, are of limited
or no assistance in interpreting the special provisions of Indian
Constitution, dissimilar to the provisions offoreign constitutions.
F
19. Constitution of India differs significantly from Constitutions of
other countries. It was made in the background of historical, social and
economic problems of this country. Our Constitution-makers forged solu-
tions and incorporated them. They made exhaustive provisions relating to
Executive, Legislature, and Judiciary with checks and balances. While
G making specific and detailed provisions regarding Parliament, the Constitu-
tion also earmarked the areas where further provisions could be made by the
Parliament by law. On the other hand, the Constitution of England is
;.
unwritten and flexible. The distribution and regulation of exercise of
governmental power has not been reduced to writing. Further British
H Parliament was, at one time, also the highest court of justice and because
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 64'7
of it, regarded as a superior court of record, with all its attendant trappings. A
United States has a short and rigid Constitution, expounded considerably
by courts. Indian Constitution is exhaustive and sufficiently expounded by
the Constitution makers themselves. In fact, with 395 Articles and 12
Schedules, it is the longest among world's Constitutions.
20. In Re. the C.P. and Berar Sales of Motor Spirit & Lubricants
B
'
j Taxation Act, 1938 - the Central Provinces case AIR (1939) FC 1, the
Federal Court observed thus :
I
j
"for in the last analysis the decision must depend upon the words
of the Constitution which the Court is interpreting and since no two C
Constitutions are in identical terms.• it is extremely unsafe to assume
that a decision on one of them can be applied without qualification
to another. This may be so even where the words or expressions
used are the same in both cases, for a word or phrase may take a
colour from its context and bear different senses accordingly."
D
fn MP. V. Sundaramier & Co. v. State of Andhra Pradesh, AfR (1958)
SC 468, this Court cautioned :
"the threads of our Constitution were no doubt taken from other
Federal Constitutions but when they were woven into the fabric of E
I our Constitution their reach and their complexion underwent
changes. Therefore, valuable as the American decisions are as
showing how the question is dealt with in sister Federal Constitu-
tion great care should be taken in applying them in the interpreta-
tion of our Constitution."
F
The note of caution was reiterated in Atiabari Tea Co. Ltd. v. State of
Assam, AIR (1961) SC 232 and Automobile Transport Ltd. v. State of
Rajasthan, AIR (19.62) SC 1406, UP.Assembly case (supra), and several other
'' subsequent decisions.
G
Provisions of Indian Constitution :
21. Chapters I, II and IV of Part V relate to Executive, Parliament and
Union Judiciary. Detailed reference is necessary to the provisions of Chapter
II dealing with Parliament. H
648 SUPREME COURT REPORTS [2007) I S.C.R.
A 21. l) Article 79 relates to Constitution of Parliament and provides that
there shall be a Parliament for the Union which shall consist of the President
and two Houses to be known respectively as the Council of States and the
House of the People. Article 80 provides that the composition of Council of
States shall be made up of twelve members nominated by the President and
not more than 238 representatives of the States and Union Territories. It also
B
provides that the representatives of each State in the Council of States shall
be elected by the elected members of the Legislative Assembly of the State.
Article 81 relates to composition of Lok Sabha and provides that Lok Sabha
shall consist of not more than 530 members chosen by direct election from
territorial constituencies in the States and not more than 20 members to
c represent the Union Territories, chosen in such manner as Parliament may
by law provide. Article 83 prescribes the duration of Houses of Parliament. )
Relevant portions thereof are extracted below :
"83. Duration of Houses of Parliament.- (1) The Council of States
D shall not be subject to dissolution, but as nearly as possible one-
third of the members thereof shall retire as soon as may be on the
expiration of every second year in accordance with the provisions
made in that behalf by Parliament by law.
E (2) The House of the People, unless soone; dissolved, shall
continue for [five years] from the date appointed for its first I
(
meeting and no longer and the expiration of the said period of [five
years] shall operate as a dissolution of the House. :
F
Article 85 provides for the sessions of Parliament, prorogation of the Houses ..
and di~solution of the House of the people. tr-
r·
21.2) Article 84 enumerates the qualifications for membership of Parlia-
ment. Article 102 deals with disqualifications for membership. Clause (1) of 't..
Article 102 provides that a person shall be disqualified for being chosen as, '
G and for being, a member of either House of Parliament :
"a) if he holds any office of profit under the Government of India
or the Government of any State, other than an office declared
by 'Parliament by law not to disqualify its holder;
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA (RA YEEND RAN, J] 649
b) if he is of unsound mind and stands so declared by a A
competent court;
c) if he is an undischarged insolvent;
d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledge- B
ment of allegiance or adherence to a foreign State;
e) if he is so disqualified by or under any law made by Parlia-
ment."
c
Clause (2) of Article 102 provides that a person shall be disqualified for
being a member of either House of Parliament, if he is so disqualified under
the Tenth Schedule.
21.3) Article 10 I deals with vacation of seats. Clause (I) thereof bars
a person being a member of both Houses of Parliament, and requires the
D
Parliament to make a provision by law for the vacation by a person who is
chosen as member of both Houses, of his seat in one House or the other.
Clause (2) bars a person from being a member both of Parliament and of a
House of the Legislature of a State. It provides that if a persori is chosen
as a member both of Parliament and of a House of the Legislature of a State, E
then at the expiry of such period as may be specified in the rules made by
the President, that person's seat in Parliament shall become vacant unless
he has previously resigned his seat in the Legislature of the State. Clause
(3 ), which is relevant, reads thus :
F
"(3) If a member of either House of Parliament -
a) becomes subject to any of the disqualifications mentioned in
clause (1) or clause (2) of Article 102; or
b) resigns his seat by writing under his hand addressed to the G
Chairman or Speaker, as the case may be, and his resignation
is accepted by the Chairman or the Speaker, as the case may
be,
his seat shall thereupon become vacant." H
650 SUPREME COURT REPORTS [2007] 1 S.C.R.
A Clause (4) provides that if for a period of 60 days, a member of either House I .......
of Parliament is without pennission of the House absent from all meetings
thereof, the House may declare his seat vacant.
21.4) Article l 03 relates to decision on questions as to disqualifications
of members. It is extracted below :
B
"103. Decision on questions as to disqualifications of members :
(1) If any question arises as to whether a member of either House
of Parliament has become subject to any of the disqualifications
c mentioned in clause (1) of article 102, the question shall be referred
for the decision of the President and his decision shall be final.
(2) Before giving any decision on any such question, the President
shall obtain the opinion of the Election Commission and shall act
according to such opinion. "
D
Corresponding provisions in regard to the State Legislatures are found in
Articles 168, 170, 171, 172, 174, 173, 191, 190 and 192 of the Constitution.
21.5) It is to be noted expulsion is not mentioned as a mode of
E cessation of membership of the Parliament under the Constitution. Nor does
it give rise to a vacancy.
21.6) Article 105 deals with powers, privileges, etc., of the Houses
of Parliament and of the members and committees thereof. Clauses (1) to (3)
F which are relevant, extracted below :
"I 05. Powers, privileges, etc., of the Houses of Parliament 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 Parliament, there shall be freedom of speech in
G 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
H liable in respect of the publication by or under the authority of
•
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RAVEENDRAN, J.] 651
either House of Parliament of any report, paper, votes or proceed- A
in gs.
(3) Jn 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
B
House and of its members and committees immediately before the
coming into force of section 15 of the Constitution (Forty-fourth
Amendment) ~t, 1978. "
The corresponding provision in regard to State Legislatures and its mem- C
bers, is Article 194. The words "shall be those of the House and of its
members and C.:lmmittees immediately before coming into force of section 15
of Constitution (Forty Forth Amendment) Act, 1978" in clause (3) of Articles
105 and 194 have replaced the earlier words "shall be those of the House
of Commons of Parliament of the United Kingdom, and of its members and
Committees, at the commencement of the Constitution". The position even
D
after amendment is the same as the position that existed at the commence-
ment of the Constitution.
21.7) The other provisions of Chapter II, relating to Parliament also
require to be noticed. Article I 06 relates to salaries and allowances of E
members. Arti~les 86 to 88 relate to the rights of the President, Ministers and
Attorney General to address the Houses. Articles _89 to 98 relate to the
officers of Par-liament. Article 99 provides fQ!: oath of office and Article 100
provides for voting in Houses. Articles \07\ to 111 relate to legislative
proced~re. Article l 07 contains the pro~s as to introductiQn and F
passing of Bills. Article I 08 relates to joint sitting of both Houses in certain
cases. Article l 09 relates to special procedure in· respect of Money Bills.
Article 110 defines "Money Bills". Article 111 requires the presentatton-of
Bills passed by the Houses of Parliament to the President for his~ent.
Articles 112 to 117 relate to the procedure in financial matters. Article 112
relates to annual financial statement. Article 113 relates to the procedure G
with respect to estimates. Article 114 relates to appropriation bills. Article
115 relates to supplementary, additional or excess grants. Art-icle 116 relates
to votes on account, votes of credit and exceptional grants. Article 117
contains special provisions as to financial bills. Articles 118 to 122 govern
the rules of procedure generally to be adopted by the Houses of Parliament. H
652 SUPREME COURT REPORTS (2007) 1 S.C.R.
A Article 118 enables each House of Parliament to make rules for regulating,
subject to the provisions of the Constitution, its procedure and the conduct
of its business.
Article 119 relates to regulation by Ia~ of procedure in Parliament in relation
to financial business. Article 120 relates to the language to be used in
B Parliament. Article l 21 places a restriction on discussion in Parliament (in
regard to the conduct of any Judge of the Supreme Court or of a High Court
in the discharge of his duties except upon a motion for presenting an
address to the President praying for the removal of the Judge). Article 122
bars courts from inquiring into proceedings of Parliament and it is extracted
C below:
"122. Courts not to inquire into proceedings of Parliament.-{l) The
validity of any proceedings in Parliament shall not be called in
question on the ground of any alleged irregularity of procedure.
D
(2) No officer or member of Parliament in whom powers are vested
by or under this Constitution for regulating procedure or the
conduct of business, or for maintaining order, in Parliament shall be
subject to the jurisdiction of any court in respect of the exercise by
him of those powers."
E
22. We have referred in detail to the various provisions to demonstrate
that as far as the Indian Constitution is concerned, Chapter II of Part V is
F a complete Code in regard to all matters relating to Parliament. It provided
for every conceivable aspect of Parliament. It contains detailed provisions
in regard to the constitution of Parliament, composition of Parliament,
sessions, prorogation and dissolution of Parliament, Officers of Parliament,
duration of the Houses of Parliament, qualifications for membership, dis·
qualifications for being chosen as, and for being members, vacancies of
G seats, decision on questions of disqualification, powers, privileges and
immunities of the Parliament, its Members and Committees, manner of
conducting business, the procedure to be adopted by the Parliament in
regard to the enactment of laws, persons who can address the Parliament,
the language to be used, and the Officers of the Parliament. The entire field
H in regard to the legislature is covered fully in the following manner :
I
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RAVEENDRAN,J.] 653
"Subject (Parliament) (State Legislature) A
Articles Articles
Constitution & Composition of 79 to 82 168tol71
Houses and election/nomination
of members
B
Duration of Houses and Tenure of 83 172
Office of Members I
I
I
Sessions, Prorogation and dissolution 85 174
c
Qualification for Membership 84 173
Cessation of wembership 102, 101 & 103 192, 190 & 192
(Disqualifications for being chosen
as, and for being a member, and
vacancies) and decision on
D
questions of disqualification
Powers, privileges and immunities 105, 122 & 106 194, 212 & 195
of the Legislature, members and
Committees, and salaries & E
allowances
Restriction on Powers 121 211
Offices of Legislature 89 to 98 178 to 187
F
Rules of Procedure and Language 118, 119& 120 208, 209 & 210
Legislative Procedure and Conduct 107 to 111 196 to 201
of Business 112 to 117 202 to 207
99 & 100 188 & 189 G
Persons who can address 86 to 88 175to177
the Parliament "
23. The Constitution also makes express provisions for cessation of
H
654 SUPREME COURT REPORTS [2007] I S.C.R.
(
A tenure of office or removal of every constitutional functionary referred to in
the Constitution. I will refer to them briefly :
"(i) Article 61 refers to the procedure for impeachment of Presi-
dent. Clause (4) of Article 61 provides that if the resolution
is passed by a majority of not less than two-third of the
B Members of the House declaring the charge against the
President has been sustained, such resolution shall have the ~
~
effect of removing the President from the office.
(ii) Clau~e (b) of Article 67 deals with the term of office of Vice
c President and provides for removal of Vice President from
office by a resolution of Council of States passed by majority
of all the then members of the Council and agreed to by the
House of People.
(iii) Article 75(2), Article 76(4) and Article 156(1) refer to the
D Ministers, Attorney General and Governor holding office
during the pleasure of the President.
(iv) Article 124 provides that no Judge of Supreme Court shall be
removed from his office except by an order of President
E passed after impeachment. Articles 148 and 324 provide that
the Comptroller & Auditor General of India and the Chief
Election Commissioner shall not be removed from their office
except in like manner and on like grounds of a Judge of the
Supreme Court.
F
(v) Article 3 I 5 read with Article' 3 I 7 provides how a Chairman or
a Member of a Public Service Commission can be removed
from office."
Similarly provisions are made in regard to cessation/termination of tenure of
G office or removal of all constitutional functionaries with reference to the
States. Article I 56(1) relates to Governor, Article 164( IYrelates to Ministers,
Article I 65(3) relates to Advocate General, Article 179 relates to Speaker and _,'
~
Deputy Speaker, Article 183 relates to Chairman and Deputy Chairman of
Legislative Council, Articles 190 to 192 relate to Members of Legislatures
H and Article 217 relates to High Court Judges.
"'-
- I •
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 655
1
Whether Articles JOI and 102 are exhaustive of the circumstances in which A
there will be cessation of membership ?
24. The word 'disqualified' means to 'make ineligible' or debarred. It
also means divested or deprived of rights, powers or privileges. The term
'expel' means to deprive a person of the membership or participation in any
- 'body' or 'organization' or to forcibly eject or force a person to leave a
building premises etc. The enumeration of disqualifications is exhaustive
and specifies all grounds for debarring a person from being continuing as
a member. The British Parliament devised expulsion as a part of its power
B
to control its constitution, (and may be as a part of its right of self-protection
and self-preservation) to get rid of those who were unfit to continue as c
members, in the absence of a written Constitutional or statutory provision
for disqualification. Historically, therefore, in England, 'expulsion' has been
used in cases where there ought to be a standing statutory disqualification
from being a Member. Where provision is made in the Constitution for
disqualifications and vacancy, there is no question of exercising any
D
inherent or implied or unwritten power of 'expulsion'.
25. A person cannot be disqualified unless he suffers a disqualification
enumerated in Article I 02. Article I 02 refers to 6 types of disqualifications:
"(i) If he holds any office of profit, vide Article 102(l)(a); E
(ii) If he is of unsound mind and stands so declared, vide Article
102(l)(b);
(iiI) If he is an undischarged solvent, vide Article 102(l)(c);
F
(iv) Ifhe is not a citizen of India, vide Article 19l(l)(d);
(v) If he is disqualified by or under any law made by Parliament.
(vi) If he is disqualified under the Tenth Schedule, vide Article G
102(2)."
Disqualifications have also been prescribed by the Parliament in the Repre-
sentation of People Act, 1951 as contemplated under Article ~02(l)(e). The
-
(
grounds of disqualifications under the said Act are H
656 SUPREME COURT REPORTS [2007] 1 S.C.R.
A "(i) if he is convicted and sentenced for any offence as provided/
enumerated in Section 8 of the Act;
(ii) if he is found guilty of corrupt practices by an order under
Section 99 of the Act vide Section 8-A of the Act;
B (iii) if he is dismissed for corruption or for disloyalty to the State,
vide Section 9 of the Act;
(iv) ifhe has a subsisting contract with the appropriate Government
for the supply of goods to or for the execution of any works, vide
c Section 9-A of the Act;
(v) ifhe is a managing agent, manager or secretary of any company
or corporation, in which the appropriate Government has a share,
vide Section 10 of the Act;
D (vi) if he is a person who has been declared as disqualified by the
Election Commission, vide Section 10-A of the Act."
The Constitution thus expressly enumerates certain grounds of disqualifica-
tion (sub-clauses (a) to (d) of clauses (1) and (2) of Article 102). It has also
E pennitted the Parliament to add disqualifications, by making a law. Passing
a resolution by one House, is not of course, making a Jaw.
26. In the case of Members of Parliament, the Constitution has
consciously used the word disqualification, both for 'being chosen as a
member' and for 'being a member'. That means that when a member
F
becomes disqualified as mentioned in Article 102, he becomes disentitled to
continue as a Member of the House.
27. Article -101 specifically provides the circumstances in which a seat
of Member of Parliament becomes vacant -
G
"(a) when a person is member of both Houses of Parliament;
(b) when a person is elected both as a Member of Parliament and t
also as a Member of the State Legislature, and does not resign
his seat in the legislature of a State within the time specified;
H
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.) 657
(c) when a person becomes subject to any of the disqualifica- A
tions mentioned in clause (I) or clause (2) of Article I02;
(d) when he resigns his seat and his resignation is accepted.
(e) when a member is absent from all meetings for a period of 60
days without permission of the House and the House declares B
his seat as vacant. "
28. An analysis of Article IOI shows that the Constitution makers
provided specifically for three types of vacancies :
c
"(i) Occurrence of vacancies, for reasons specifically stated in the
Constitution itself (vide clauses (2) and (3) of Article IOI).
(ii) Occurrence of vacancies, to be provided by a law made by the
Parliament (vide clause (I) of Article IO I).
D
(iii) Occurrence of vacancy, on a declaration by the House (vide
clause (4) of Article IOI). "
If the Constitution makers wanted a vacancy to occur on account of
'expulsion' on a decision or declaration by the House, they would have E
certainly provided for it, as they have provided for vacancy on the ground
of unauthorized absence, arising on a declaration by the House under clause
(4) of Article 101. The Constitution makers did not contemplate or provide
for any cause, other than those mentioned in Article I 0 l, for giving rise to
- a vacancy. Thus a seat held by a Member of Parliament does not become
vacant, in any manner, other than those stated in Article IO 1.
F
29. One argument advanced to contend that Article IOI cannot be
considered as exhaustive as to the circumstances in which vacancy occurs
in respect of a seat in the Parliamentary, was that it does not provide for
vacation of seat by death of a Member. Article I 0 I refers to vacation of seat G
by a 'person' who is a member of the House, that is, a person who is alive.
When a person is dead, obviously he is not a Member of the House. It
--\ would be absurd to contend that a person even after death will continue to
hold the seat. The obvious effect of death did not require to be stated and
therefore the non-mention of death as a ground for vacancy does not make H
....
658 SUPREME COURT REPORTS [2007] I S.C.R.
A Article 10 l any less exhaustive.
30. Articles 102 and I 01 together include all circumstances in which a
membership comes to an end and the seat becomes vacant. The Constitution
does not contemplate or provide for the membership of an MP coming to
an end in any manner other than what is specifically provided in Articles
B 101 and 102. Therefore there cannot be cessation of membership, de hors
Articles 101 and 102, by 'expulsion' or otherwise.
Conclusions :
C 31. The Constitution-makers have made detailed and specific provi-
sions regarding the manner in which a person becomes a Member of
Parliament (elected/nominated), the duration for which he continues as a
member and the mann.er in which he ceases to be a member and his seat
becomes vacant. Therefore neither the question of election or nomination,
nor tenure, nor cessation/termination of membership of the House covered
D by the express provisions in the Constitution, can fall under 'other powers,
privileges and immunities' of the House mentioned in Article 105(3 ).
32. We have also noticed above that the Constitution makes express
provisions for election/appointment and removal/cessation of service of the
E Executive (President and Vice-President), Judiciary (Judges of the Supreme
Court and High Court) and all other constitutional functionaries (".'-ttomey
General, Auditor and Comptroller General, Chief Election Commissioner etc.).
It is, therefore, inconceivable that the Constitution-makers would have
omitted to provide for 'expulsion' as one of the methods of cessation of
F membership or consequential vacancy, if it intended to entrust such power
to the Parliament.
-
33 .. In view of the express provisions in the Constitution, as to when
a pers-on gets disqualified to be a member of either House of Parliament (and
thereby ceases to be a member) and when a consequential vacancy arises,
G it is impermissible to read a new category of cessation of membership by
way of expulsion and consequential vacancy, by resorting to the incidental
powers, privileges and immunities referred to in Article 105. t .'>
34. Clause (3) of Article 105 opens with the words 'in other respects'.
H The provision for 'powers, privileges and immunities' in clause (3) occurs
I
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA YEEND RAN, J.] 659
-iJ ~
after referring to the main privilege of freedom of speech in Parliament, in A
clause (I) of Article 105, and the main immunity against court proceedings
".
in clause (2) of Article I 05. Therefore, clause (3) is intended to provide for
'non-main' or 'incidental' or miscellaneous powers, privileges and immunities
which are numerous to mention. Two things are clear from clause (3). It is
not intended to provide for the matters relating to nomination/election, term
of office, qualifications, disqualification/cessation, for which express provi-
B
sions are already made in Articles 80, 81, 83, 84, I 01 and 102. Nor is it
., intended to provide for important privilege of freedom of speech or impor-
tant immunity from court proceedings referred to in Clause (1) and (2) of
Article 105. This Court in UP. Assembly (supra) referred to this aspect :
c
"There can be little doubt that the powers, privileges and immunities
which are contemplated by clause (3) are incidental powers, privi-
leges 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)."
D
[emphasis supplied]
By no stretch of imagination, the power to expel a member can be considered
as an 'incidental' matter. If such a power was to be given, it would have
been specifically mentioned. E
35. The appropriate course in case of allegation of corruption against
a Member of Parliament, is to prosecute the member in accordance with law
(The immunity under Article 105(2) may not be available, as the decision in
P. V.Narasimha Rao v. State, [1998] 4 SCC 626 recognizes immunity to a
' F
member who is a bribe taker only where the 'bribe' is taken in respect of a
'vote' given by him in Parliament and not otherwise). Such cases can be fast
tracked. Pending such criminal proceedings, the member can be suspended
... temporarily, if necessary, so as to prevent him from participating in the
deliberations of the Houses. On being tried, if the member is convicted, he
becomes disqualified for being or continuing as a Member under Article G
102(l)(e). Ifhe is acquitted, he is entitled to continue as a member. Though
it may sound cumbersome, that apparently is what the Constitution intends .
..,j
36. I am, therefore, of the considered view that there is no power of
expulsion in the Parliament, either inherent or traceable to Article 105(3). H
SUPREME COURT REPORTS [2007] 1 S.C.R
A Expulsion by the House will be possible only if Article 102 or Article 101
is suitably amended or ifa law is made under Article 102(l)(e) enabling the
House to expel a member found unworthy or unfit of continuing as a
member. The first question is thus answered in the affinnative. Therefore the
second question does not survive for consideration.
B 37. In view of the above, I hold that the action of the two Houses of
Parliament, expelling the petitioners is violative of Articles 101 to 103 of the
Constitution and therefore invalid. Petitioners, therefore, continue to Le
Members of Parliament (subject· to any action for cessation of their
membership). Petitions disposed of accordingly.
c
ORDER
In view of the majority opinion, all the Petitions and Transferred Cases
are dismissed.
D GN. Writ petitions and transferred cases dismissed.
....
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