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TMI Blog2007 (1) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... ccasion and to see to it that such an event does not occur ever in future and commended that if anybody is guilty, he should be punished . It is clear that when he stated that no body would be spared he was not immediately passing a judgment that the petitioners were guilty. He was only giving vent to his feeling on the subject of the proper course of action in the event of inquiry confirming the facts that had been projected in the telecast. The finding of guilt would come later. The fact that he had constituted an Inquiry Committee with members drawn also from parties in opposition rather goes to show that the resolve at that stage was to find the truth. 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 of natural justice were flouted. In this context, the grievances of the petitioners are manifold. They would state that proper opportunity was not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 conclusions after viewing the same. As pointed out by the learned Counsel for Union of India, the evidence contained in the video recordings indicating demand or acceptance of mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of contents whereof are reflected in the Inquiry reports and on which subject the petitioners have not raised any issue of fact. 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 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. Before concluding, we place on record our appreciation for able assistance rendered by learned Counsel for the parties in the matter. Thus, we find no substance in the pleas of the petitioners. Resultantly, all the Petitions and Transferred Cases questioning the validity of the decisions of expulsion of the petitioners from the respective Houses of Parliament, being devoid of merits are dismissed. C.K. Thakker, J. - The basic and fundamental question raised by the petitioners in all these petitions is the power of Parliament to expel a member. Other incidental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinue to act in a responsible manner expected of them. I am equally confident that not only all the constituents of the State will keep themselves within the domain of their authority and will not encroach, trespass or overstep the province of other organs but will also act in preserving, protecting and upholding the faith, confidence and trust reposed in them by the Founding Fathers of the Constitution and by the people of this great country by mutual regard, respect and dignity for each other. On the whole, the situation is satisfactory and I see no reason to be disappointed for future. With the above observations and pious hope, I dismiss the Writ Petition as also all transferred cases, however, without any order as to costs. R.V. Raveendran, J. - Distinction between British Parliament and the Indian Parliament - Constitution of India differs significantly from Constitutions of other countries. It was made in the background of historical, social and economic problems of this country. Our Constitution-makers forged solutions and incorporated them. They made exhaustive provisions relating to Executive, Legislature, and Judiciary with checks and balances. While making specific and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) of Article 105 opens with the words 'in other respects'. 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 are clear from Clause (3). It is not intended to provide for the matters relating to nomination/election, term of office, qualifications, disqualification/cessation, for which express provisions are already made in Articles 80, 81, 83, 84, 101 and 102. Nor is it intended to provide for important privilege of freedom of speech or important immunity from court proceedings referred to in Clause (1) and (2) of Article 105. 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). Expulsion by the House will be possible only if Article 102 or Article 101 is suitably amended or if a law is made u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as consideration for raising certain questions in the House or for otherwise espousing certain causes for those offering the lucre. This led to extensive publicity in media. The Presiding Officers of each Houses of Parliament instituted inquiries through separate Committees. Another private channel telecast a programme on 19th December, 2005 alleging improper conduct of another MP of Rajya 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. The Report of the inquiry concluded, inter alia, that the evidence 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut any margin of error and thus there was a necessity to seek opinion of this Court under Article 143(1) of the Constitution. 5. 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 membership of Rajya Sabha with immediate effect was issued. 6. The case of petitioner in Writ Petition (C) No. 129/2006 arises out of different, though similar set of circumstances. In this case, the telecast of the programme alleged improper conduct in implementation of MPLAD Scheme. The programme was telecast on 19th December, 2005. The Report of the Ethics Committee found that after viewing the unedited footage, the Committee was of the view that it was an open and shut case as Member had unabashedly and in a professional manner demanded commission for helping the so-called NGO to set up projects in his home state/district and to recommend works under MPLAD Scheme. The Committee came to the conclusion that the conduct of the Member amounts to violations of Code of Conduct for Members of Rajya Sabha and it is immaterial whether any money changed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , privileges and immunities of State legislature. Article 194 reads as under: 194. Powers, privileges, etc., of the House of Legislatures and of the members and committees thereof.--(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution (forty-fourth Amendment) Act, 1978. (4) The provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament and since this Status was not accorded to Indian Legislature, the power to expel could not be claimed by the Houses of 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 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 C is the final arbiter on the constitutional issues and the existence of judicial power in such 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h are, consequently, subject to the supervision and control of judicial organ; (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; (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. 12. 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 and the Constitutional inhibition placed on the exercise of power of debarment had been defeated. On the case that the Indian legislatures cannot claim the power of expulsion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppings had been 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 decisions they had suffered irreparable loss and their image and prestige had been lowered in the eyes of the electorate. 13. 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 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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accountability v. Union of India AIR1992SC320 , I. Manilal Singh v. H . Borobabu Singh [1993]1 SCR 769, Union of India v. Assn. for Democratic Reforms [2002]3 SCR 696 , Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter) AIR 2003 SC 87 , People's Union for Civil Liberties (PUCL) v. Union of India [2003] 2 SCR 1136, Pratap Singh v. State of Jharkhand 2005 Cri LJ 3091 , Rameshwar Prasad (VI) v. Union of India AIR2006SC980 , Kuldip Nayar v. Union of India AIR2006SC3127 . 16. That the parliamentary democracy in India is qualitatively distinct from the one in England from where we have borrowed the Westminster 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. 1 of 1964, (1965) 1 SCR 413 (UP Assembly case): 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution. 18. 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: ...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 status, dignity and importance of the respective causes that are assigned to their charge by the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess in the Council of States . Conscious of the high status of these bodies, the Constitution accorded certain powers, privileges and immunities to the Parliament and State Legislatures and their respective members. For this purpose, specific provisions were included in the Constitution in Articles 105. 22. For the present, it may only be noticed that sub-Article (1) of Article 105 and Article 194 respectively confers on the Members of Parliament 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. Sub-Article (2) of both the said Articles grants, inter alia, 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 Article 105 and Article 194 declares that the powers, privileges and immunities of each House of the Legislatures and the members and Committees thereof, in other respects shall be such as may from time to time be defined by the Parlia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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) 25. 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. 26. 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 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. 27. Fortunately, the subject at hand is not a virgin territory. There have been oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 their own view in such regard. 29. 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. The works of English and Commonwealth authors have always 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 The Law and Custom of the Constitution . Sir Thomas Erskine May was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me decisive of the case before us. What is said or done 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. 1.; - are agreed, and are emphatic. The jurisdiction of the House over their own members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, They would sink into utter contempt and inefficiency without it. [14 East, at p. 152] 32. The learned Counsel then referred to the Privy Council decision in 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 Government of New 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 32 of the Constitution of India alleging that the proceedings initiated by the legislative assembly had violated his fundamental right of speech and expression under Article 19(1)(a) as also the fundamental right of protection of his personal liberty under Article 21. The case was decided by a Constitution Bench (five Judges), with main focus on two principal points; namely, the availability of a privilege under Article 194(3) of the Constitution to the House of a legislature in India to prohibit entirely the 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 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 19(1)(a). Noticeably, no specific objection as to the jurisdiction of the court in examining the issue of existence and availability of the particular privilege was raised at any stage. 35. It may be mentioned here that the writ petition of Pandit Sharma was dismissed on the basis of majority view, inter alia, holding that the legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion raised on behalf of the petitioner. No 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 is yet to 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 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 recognized the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non-compliance with rules of procedure cannot be a ground for issuing a writ unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relationship between the High Court and the State Legislature in matters of the powers and privileges of the latter. The contours of the main controversy were summarized by this Court at page 439 in the report in the following words: 27. ... Is the House the sole and exclusive judge of the issue as to whether its contempt has been committed where the alleged contempt has taken place outside the four walls of the House? Is the House the sole and exclusive judge of the punishment which should be imposed on the party whom it has found to be guilty of its contempt? And, if in enforcement of its decision the House issues a general or unspeaking warrant, is the High Court entitled to entertain a habeas corpus petition challenging the validity of the detention of the person sentenced by the House?.... It is clear from the opinion rendered in UP Assembly case that the State legislature, though participating in the hearing, expressed reservations as to the jurisdiction of this Court in any manner in respect of the area of controversy covered by the questions, insisting that the question about the existence and extent of the powers, privileges and immunities of the House, as well as the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 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 proceedings is absolute and cannot be interfered with by the 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 39. The case State of Karnataka v. Union of India [1978] 2 SCR 1 decided by a Constitution Bench (seven Judges) of this Court finally clinched the issue beyond the pale of any doubts. The case had arisen against the backdrop of appointment by the Central Government of a Commission of Inquiry against the then Chief Minister of Karnataka. The State of Karnataka filed a suit in this Court, inter alia, for a declaration that the appointment of the Commission was illegal, in as much as the terms of reference of the Inquiry Commission covered matters falling exclusively within the sphere of the State's legislative and executive power on which basis, amongst others, it was contended that the federal structure implicit and accepted as an inviolable basic feature of the Constitution was being abridged. Some arguments in the context of this controversy were founded on the powers and privileges of the legislature of the State under Article 194 of the Constitution. Examining these arguments, Beg CJ. in his judgment observed as under: 63. Now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; 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. May, in his Parliamentary Practice , has defined parliamentary privilege as the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies of individuals . Thus, privilege, though not part of the law of the land, is to a certain extent an exemption from the ordinary law. Rutledge, in his Procedure of the House of Commons [Volume I, page 46], defined privileges as the sum of the fundamental rights of the House and of its individual members as against the prerogatives of the Crown, the authority of the courts of law, and the special rights of the House of Lords . The origin of parliamentary privileges is inextricably intertwined with the specific history of the institution of Parliament in Englan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the Commons at the beginning of a Parliament is for freedom from arrest. The development of this privilege is in some ways linked to that of other privileges. Arrest was frequently the consequence of the unsuccessful assertion of freedom of speech, for example.... FREEDOM OF ACCESS - The third of the Speaker's petitions is for freedom of access to Her Majesty whenever occasion shall require. This claim is medieval (probably fourteenth century) in origin, and in an earlier form seems to have been sought in respect of the Speaker himself and to have encompassed also access to the Upper House.... FAVOURABLE CONSTRUCTION - The final petition which the speaker makes is that the most favourable construction should be placed upon all the House's proceedings.... PRIVILEGE WITH RESPECT TO THE CONSTITUTION OF THE 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. 42. In the UP Assembly Case, while dealing with questions relating to Powers, Privileges and Immunities of State Legislatures, it was observed as under: 69... Parliamentary privileg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 its rightful place. It was almost a fight for its existence in which the House of Commons was pitted against not only the Crown and the House of Lords, 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. The dust raised by the bitter struggle waged by the House of Commons to assert its privileges finally settled when equilibrium was 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 Case: T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 arrest or molestation, and from being impleaded, which was claimed by the Commons on ground of prescription.... 46. 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 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., p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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. Be that as it may, as observed in the UP Assembly 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 a court of justice . 49. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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. At page 591 of the judgment, it was observed thus: 121. 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 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 introduced in India by any legal fiction. Appropriate legislative provisions do occasionally introduce legal fictions, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecutive 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 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 deliberative 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 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 by the Acts of 1854 and 1861. 56. 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 Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legislation of the local legislatures were defined more or less similarly in Section 80A. 60. '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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dra 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 had no power to punish for its breach of privilege. 63. 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. 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 (1) of Section 71, inter alia, declared that Subject to the provisions of this Act and to rules and 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 given by hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven by him in the Legislature or any Committee thereof . 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 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: 28. (2). In other respects, the privileges of members of the Chambers shall be such as may from time to time be defined by 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. 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 orders or otherwise behaving in a disorderly manner. It read thus: 28. (3). Nothing in any existing India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers thereof all the powers and privileges which are held and enjoyed by the Speaker and members of the British House of Commons . 66. 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: No law and no provision of any law made by the Legislature of either of the new Dominions (India and Pakistan) shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of this or any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act. 67. 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 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 mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. (3) In other respect, the privileges and immunities of member of the Houses shall be such as may from time to time be defined by Parliament by law, and until so defined, of Commons of the Parliament of the United Kingdom at the commencement of this Constitution (4) The provisions of Clause (1), (2), and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise take part in the proceedings of, a House of Parliament as they apply in relation to members of Parliament. 70. The reference to the House of Commons of the Parliament of the United Kingdom provoked comment and intense debate. As is seen from the Constituent Assembly Debates (Volume 8 of 19.5.1949 page 143-149), Shri H.V. Kamath 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r us to rely upon the 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 the privileges of the members of the House of Commons. We know very well what our privileges at present are. Therefore, Sir, it is far better to build on our own solid ground, rather than rely on the practices obtaining in other countries.... 71. 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. Narizuddin Ahmad, Dr. P.S. Deshmukh. Prof. K.T. Shah had also proposed insertion of Clause (5) in draft Article 85 in the following form: 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. 72. Sir Alladi Krishnaswamy Iyer, while replying to the criticism, stated thus: Sir, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge side by side with Hindi for the time being. Why object only to reference to the privileges in England? The other point is that there is nothing to prevent the Parliament from setting up the proper machinery for formulating privileges. The article leaves wide scope for it. In other respects, the privileges and immunities of members of the Houses shall be such as may from time to time be defined by Parliament by law and, until so defined, shall be such as are enjoyed by the members of the House of Commons of the Parliament of the United Kingdom at the commencement of this Constitution. That is all what the 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. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the House 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when we were discussing the privileges of Parliament and I thought that as the House had accepted the article dealing with the 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. Kamath 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, 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 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. XXX ... 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tunately for us, as honorable 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. Consequently that course was not open, because the existing Parliament or Legislative Assembly possesses 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 privileges of the House of Commons. It seems to me that except for the sentimental objection to the reference to the House of Commons I cannot see that there is any substance in the argument that has been advanced against the course adopted by the Drafting Committee. I therefore suggest that the article has adopted the only possible way of doing it and there is no other alternative way open to us. That being so, I suggest that this article be adopted in the way in which we have drafted it. (Emphasis supplied) Dr. Ambedkar thus reiterated the justification given by Mr. Alladi earlier, add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the fact that the provisions of Article 105 were amended by the Constitution (44th Amendment) Act, 1978, thereby deleting the reference to the House of Commons with 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 if it 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 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 of the House of Lords to suspend its members should be clarified and confirmed . 78. We are not impressed with any of these arguments. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im was the freedom of speech and expression enshrined in Article 19(1)(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 conclude that Article 19(1)(a) is not one of the provisions of the Constitution which controls the first part of Clause (1) of Article 194. (Emphasis supplied) 82. Taking note of Pandit Sharma (I), it was reiterated in the UP Assembly 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(1)(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 Article 194(1). 83. On the provisions of Clause (2) of Article 194, this is what the Court found: It is plain that the Constitution-makers attached so much importance to the necessity of absolute freedom in debates within the legislative chambers that they thought it necessary to confer complete immunity on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmonious construction.... (Emphasis supplied) 86. The argument that though Article 194(3) had not been made 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 Constitution had been earlier rejected by this Court through unanimous view on the subject in Pandit Sharma (I). 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 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. 87. It is settled that out of entire bouquet of privileges and powers which the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her words, whether power of expulsion would be inconsistent with other provisions of the Constitution of India. 90. According to the Petitioners the power of expulsion is inconsistent 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 and their right to hold office till the end of the term [Article 106 and Article 82(3)]; (iii) Citizen's right to vote and right of representation of their constituency in Parliament ; and (iv) The fundamental rights of the MPs. (i) Provisions relating to vacancy and disqualification: The Petitioners have relied on Articles 101, 102 and 103 of the 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 Parliament and that no additional ground can exist based on which the membership of a sitting Member of Parliament can be terminated. Articles 101, 102 and 103 appear under the sub-heading Disqualifications of Members in Chapter II of Part V of the Constitution. Learned Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 mentioned, if there 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 within the provision relating to vacancy. Thus, the power of expulsion cannot be held to be inconsistent with these provisions. While interpreting Article 194, three High Courts have rightly rejected similar contentions {Yashwant Rao Meghawale v. Madhya Pradesh Legislative Assembly AIR1967MP95 , Hardwari Lal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owers 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 as election matters, etc. are concerned. It does not refer to privileges that the Parliament enjoys. Thus, we find that the power of expulsion is not negated by any of the above constitutional or statutory provisions. (ii) Provisions relating to salary etc. and the right to a fixed term: 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, by terminating their membership violates these constitutional rights. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... House. 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: 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. 92. 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 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 li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain limitations to the right to vote and be represented. For example, a citizen cannot claim the right to vote and be represented by a person who is disqualified by law or the right to be represented by a candidate he votes for, even if he fails to win the election. Similarly, expulsion is another such provision. Expulsion is related to the conduct of the member that lowers the dignity of the House, which may not have been necessarily known at the time of election. It is not a capricious exercise of the House, but an action to protect its dignity before the people of the country. This is also an integral aspect of our democratic set-up. In our view, the power of expulsion is not contrary to a democratic process. It is rather part of the guarantee of a democratic process. Further, expulsion is not a decision by a single person. It is a decision taken by the representatives of the rest of the country. Finally, the power of expulsion does not bar a member from standing for re-election or the constituency from electing that member once again. Thus, we hold that the power of expulsion does not violate the right of the constituency or any other democratic principles. (iv) Fundamental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by law' includes the rules relating to the Privileges Committee, etc., which were not followed and thus the right was violated. In our view, this does not prevent the reading of the power to expel in Article 105(3). It is not possible to say that because a 'procedure established by law' is required, it will prevent the power of expulsion altogether and that every act of expulsion will be contrary to the procedure established by law. Whether such a claim is maintainable upon specific facts of each case is something that will have to be considered when the question of judicial review is taken up. At this stage, however, a blanket ban on the power of expulsion based on Article 21 cannot be read in the Constitutional provisions. This is an issue that may have a bearing on the legality of the order. But, it cannot negate the power of expulsion. In the light of the above discussion, we hold that the power of expulsion does not come into conflict with any of the constitutional provisions and thus cannot be negated on this basis. 94. Let us now consider the argument in relation to the power of self composition of House of Commons. Power of self composition 95. The history of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . That the legislatures established under the Constitution of India do not have the power of self composition cannot be a subject matter of controversy. It was clearly so observed in UP Assembly Case. 97. 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 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. 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 to disqualification as a result of enforcement of the provisions of the Tenth Schedule on account of defection. 101. Article 101 makes provision on the subject of vacation of seats 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 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 101(4) empowers the House to declare the seat of a membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 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 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 having been given not to the House(s) but to the Governor 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 const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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 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 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. 114. Mr. Andhyarujina and Mr. Subramanian, however, submitted that the privilege of the House of Commons to provide for its own proper constitution has a meaning with regard to its privileges in the matter of elections to it, as explained by May in three ways as noticed by this Court in UP Assembly Case as men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 118. 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. 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. 119. While dealing with the privilege of the House of Commons to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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 right of commitment which becomes, in the words of 'Sir E. May, 'the keystone of Parliamentary privilege'. It remains to consider how it is exercised and by what right. What Anson seems to indicate here is that expulsion is a sanction 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 misdemeanor against members and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the House of Commons claims the exclusive right of providing, as it may deem fit, for its own proper constitution. 123. The petitioners, in reply, submit that no such significance can be attached to the words In addition . They argue that the paragraph, when 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 this privilege is explained in the words, This claim involves the exclusion of review by any court or other external body of the application of the procedure and practice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Privileges and Contempt's , 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 submission made is that this omission renders doubtful the plea that expulsion from the House of Commons is also within its penal jurisdiction and is imposed as a measure of punishment for contempt. 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 narration in separate Para (1020) on the subject of Power to fill vacant seat while the House of Commons is sitting and then by another Para (1021) on the subject of Power to fill vacant seat during prorogation or adjournment which appeared in earlier edition as Para numbers 907 908 respectively. 125. The subject of the power of expulsion claimed by the House of Commons stands shifted in the Fourth edition to a later sub-part (3) under the heading Jurisdiction of Parliament mainly dealing with the Penal jurisdiction, and after narrating the position generally on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 128. 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 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 unanalyzed power by the House. After mentioning the membership an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to declare a seat vacant on such ground. The House may, however, as in the case of Mitchel (1875), I.R. 9C.L. 217 refer such a question to the Courts. The House of Commons cannot, of course, create disqualifications unrecognized by law, but it may expel any member who conducts himself in a manner unfit for membership. A constituency may re-elect a member so expelled, and there might, 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 misdemeanor. 130. It has been argued by the petitioners that Professors Wade and 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 contempt. 131. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h's Case (1903), these persons being disqualified as undergoing sentence in consequence of conviction for felony or treason. In Mitchel's Case the House declared the seat vacant, but on his being elected a second time they allowed the courts to determine 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 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 a member guilty of misdemeanor 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 election void, and the member next on the poll duly returned. In 1782 the House ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpel 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-reference for further discussion on the subject at page 130 included in Chapter IX of the work which pertains to the penal jurisdiction of the House of Parliament and their powers to inflict punishment for contempt. 137. 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 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. 138. 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 const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly 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 contempt and thus not as a punitive measure of express punishment for contempt of the House. 142. May, in 20th Edition dealt with the Penal Jurisdiction of the Houses of Parliament in separate chapter (Chapter 9), and after dealing with 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, 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. 143. In the 23rd Edition of May's Parliamentary practice, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. One of the three ways of exercising the privilege of the Commons to constitute itself as mentioned 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 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 misdemeanor. 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, a punishment which cannot be inflicted on a non-member. 144. 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 regulate its own Constitution or that without the privilege of providing for its own Constitution, the House could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether this source itself incorporates any restrictions. Article 105(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 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 alien to the Constitution to read qualifying words into this article that are not present in the first place and not intended to be included. 151. 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. 152. Through an enactment establishing a Colonial Constitution, the parliament of the Colony of Victoria was empowered to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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. 155. Rooting for the case that the extent of powers incorporated in the Constitution is of wide amplitude, reliance has been placed on the following observations of this Court in the case of Pandit Sharma (I): It is said that the conditions that prevailed in the dark days of British history, which led to the Houses of Parliament to claim their 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to punish for contempt. 156. Reliance has been placed on several English cases, namely Keilley v. Carson (1842) 4 Moo. PC 63, Fenton v. Hampton (1858) 11 MOO PCC 347, Doyle v. Falconer (1865-67) LR 1 PC 328, and Barton v. 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 latter two cases 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 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. 157. It has been submitted on behalf of the petitioners that Parliament can only claim the protective, limited power to punish for contempt, that also if committed ex facie. It has been argued that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance on the above case, it was also argued by the petitioners that unless India tends to be terribly arrogant , one cannot 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 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. 160. The respondents have referred to the case of Yeshwant Rao v. MP Legislative Assembly AIR1967MP95, decided by the Madhya Pradesh 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 to the House in India. It was also argued by the Petitioners in that case that the resolutions expelling them were passed without giving them an opportunity to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 . There is no justification at all for reading into Article 194(3) what the Constituent Assembly did not choose to put therein. Adopting such a course would, in my opinion, not be interpreting Clause (3) of Article 194, but re-writing it. (Emphasis supplied) 162. The case of K. Anbashagan v. Tamil Nadu Legislative Assembly AIR1988Mad275 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 High Court and the minority view in the Hardwari Lal decided by Punjab Haryana High Court. It was held by Madras High Court th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested in the House. On this view of the matter, the claim made by the House must be rejected. (Emphasis supplied) 164. It has been argued that in the face of above-quoted view of this 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 support such a claim. 165. 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 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 resolution, petitions were filed by the Judges under Article 226. In the wake of these unsavory developments involving two or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ures in India, it was stated: 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) Speaking of the Judges' power to punish for contempt, the Court observed: We ought never to forget that the power to punish for contempt 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 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. (Emphasis supplied) It is evident, therefore, that in the opinion of the Court in case of UP Assembly, legislatures in India do enjoy the power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embly, 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. 169. 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 (I), 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 Sharma (II), when it refused to re-examine the issues earlier answered in Pandit Sharma (I). The cases involved contempt action by the legislature against an outsider curtailing his fundamental rights, and yet the Court refused to strike down such action. 170. This view finds further strength from the case of State of Karnataka v. Union of India [1978] 2 SCR 1. 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 'pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and take up motions concerning its privileges and immunities because, in doing so, it only seeks removal of obstructions to the due performance of its legislative functions. But, if any question 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 a 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.... (Emphasis supplied) The passage quoted above makes it further clear that the only limitation the Court recognizes in the power of the legislatures to punish for contempt is that such contempt powers cannot be used to divest the ordinary courts of their jurisdiction. This is in tune with the decision in the 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. 171. Thus, we are unable to accept the contention that the power to punish for cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is power is not inconsistent with other provisions of the Constitution. 174. We may also briefly deal with the other possible sources of the power of expulsion. Plea of limited remedial power of Contempt 175. 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 there from the power of expulsion. There has been great debate around the cases of Keilley, Fenton, Doyle and Barton mentioned earlier. We would, therefore, notice the relevant portions of the decisions rendered in the said cases. 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 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 prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial 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) 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 Keilley, observing that in that case: they held that the power of the House of Commons in England was part of the 'Lex et consuetude 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 of Keilley v. Carson.... 176. 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 delivered by Sir Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Keilley and 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 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 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 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) The Court went on to examine what is necessary and found that an indefinite suspension could never be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified temporary suspension, not by way of punishment, but in self-defense, it seems impossible for the Court to declare that the House was so wrong in its judgment, and 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) The above case thus establishes that even if the House of legislature has limited powers, such power is not only restricted to ex facie contempt's, but even acts committed outside the House. It is open to the assembly to use its power for protective purposes, and the acts that it can act upon are not only those that are committed in the House, but upon anything that lowers the dignity of the House. Thus, the petitioners' submission that House only has the power to remove obstructions during its proceedings cannot be accepted. 181. It is axiomatic to state that expulsion is always in respect of a member. At the same time, it needs to be borne in mind that a member is part of the House due to which his or her conduct always has a direct bearing upon the perception of the House. Any legislative body must act through its members and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis for the Joint Select Committee's recommendation : The 1984 report of the Joint Select Committee on Parliamentary 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 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 of the 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, for example, E. Campbell, Parliamentary Privilege in Australia, MUP, 1966, pp.104-05 (Odger's Australian Senate Practice 11th Edition, 56-57 ). 187. The Australian Joint Committee Report itself weighs the dangers of misuse of expulsion against any potential need for expulsion and definitively recommends its abolition: This danger [i.e. misuse by the majority] can n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Mr. D. Sen) from the membership of the House 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 ordered on 15th November 1976. 190. The above-mentioned three instances of expulsion from the Houses of Parliament have been referred to by the learned Counsel for Union of India 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 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. 191. The facts of the case of expulsion of Mr. Subramaniam Swamy from Rajya Sabha are narrated by Subhash C. Kashyap in his 'Parliamentary Procedure' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st have inherently the right to deal with its own problems as it chooses and I cannot imagine anybody doubting that fact. This particular article throws you 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 ... 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 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, where people may have two opinions about it, where one may have doubts if a certain course suggested is much too severe. The case, if I may say so, is as bad as it could well be. If we consider even such a case as a marginal case or as one where perhaps a certain amount of laxity might be shown, I think it will be unfortunate from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arassment and institution of false cases by Mrs. Gandhi and others against certain officials. 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. 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. 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 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 an elected member. Mr. K.S. Hegde, the Speaker, acknowledged the importance of the constitutional arguments advanced by Mr. C.M. Steph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er it 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 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 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. 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 either here in this Parliament, or in the House of Commons or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defense through his 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. Again, the punishment for a breach of privileges in recent times, this maximum punishment, this double punishment of 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. 196. 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: I remember when Charles the First was ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78 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; (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 (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 19th December, 1978. 199. It is the argument of the learned Counsel for 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 parliamentary rules, precedents and conventions and an act of betrayal of the electorate and abuse by brute majoritarian forces. In this context, the learned Counsel would point out that reference was made repeatedly in the course of debate by the Members of Lok Sabha, to the majo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India and of the learned Additional Solicitor General on the plea of ouster of the court's jurisdiction is that in essence, the position with regard to justifiability 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 decline to interfere with the manner of its exercise. 205. 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 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. 206. Against the backdrop of challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the walls of either assembly must pass without question in any 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 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 or 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. Learned Counsel for Union of India and learned Additional Solicitor General, submit that in the case of UP Assembly, this Court was 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: 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 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. (Emphasis supplied) 211. The submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons facing the wrong end of the stick. 214. In the case of Pandit Sharma (I), one of the two principal points canvassed before the Court revolved around the question as to whether the privilege of the Legislative Assembly under Article 194 (3) prevails over the fundamental rights of the petitioner (non-member in that case) under Article 19(1)(a). This contention was sought to be supported on behalf of the petitioner through a variety of arguments including the plea that though Clause (3) of Article 194 had not, in terms, been made subject to the provision of the Constitution it would not necessarily mean that it was not so subject, and that the several clauses of Article 194, or Article 105, should not be treated as distinct and separate provisions but should be read as a whole and that, so read, all the clauses should be taken as subject to the provisions of the Constitution which would include Article 19(1)(a). It was also argued that Article 194(1), like Article 105(1), in reality operates as an abridgement of the fundamental rights of freedom of speech conferred by Article 19(1)(a) when exercised in Parliament or the State Legislature, as the case may be, but Article 194(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that this did not lead to the conclusion that if the powers, privileges or immunities conferred by the latter part of the said Article are repugnant to the fundamental rights they must also be void to the extent of repugnancy. It was pointed out that it must not be overlooked that the provisions of Article 105(3) and Article 194(3) are constitutional laws and not ordinary laws made by Parliament or the State Legislatures and that, therefore, they are as supreme as the provisions of Part III . Interestingly, it was also observed in the context of amenability of a law made in pursuance of first parts of Article 105(3) and Article 194(3) to the provisions of Article 13(2) that it may well be that that is perhaps the reason why our Parliament and the State Legislatures have not made any law defining the powers, privileges and immunities.... 216. 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 constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 terms that in exercising the rights conferred on them by Clause (1), if the legislators by their speeches contravene any of the fundamental rights guaranteed by Part III, they would not be liable for any action in any court. Nevertheless, if for 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 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 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) 220. Reiterating the view taken in Pandit Sharma (I), it was observed at page 452 as under: ...It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to read the majority decision as laying down a general proposition that whenever there is a conflict between the provisions of the latter part of Article 194(3) and any of the provisions of the fundamental rights guaranteed by Part III, the latter must always yield to the former. The majority decision, therefore, must be taken to have settled that Article 19(1)(a) would not apply, and Article 21 would. (Emphasis supplied) 222. 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: ...If Article 21 applies, 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 21, can he or can he not move this Court under Article 32? For the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim a general warrant issued by it in respect of its contempt 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 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 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. 225. The learned Counsel for Union of India further submitted that in exercise of the privileges of the House to regulate its own proceedings including the power to expel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (p.58). In Canada, J. G. Bourinot, in Parliamentary Procedure and Practice in the Dominion of Canada (2nd Ed. 1892), at pp. 193-94, affirmed the same rule. (Emphasis supplied) 227. We may note that observations made by Canadian Supreme Court in House of Commons 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 stated In my view, parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a member 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 can result in judicial scrutiny on the touch-stone of Articles 20 or 21, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench (11 Judges) in Rustom Cavasjee Cooper v. Union of India [1970]3 SCR 530 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 subject has been summarized by this Court in Para 27 of the judgment in Ashok Kumar Gupta v. State of U.P. [1997]3 SCR 269, in the following words: 27. In A.K. Gopalan v. State of Madras 1950CriLJ1383 , per majority, the Constitution Bench had held that the operation of 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] 3 SCR 530 . This Court 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, paras 297 and 298) it was held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.... (Emphasis supplied) 231. The enforceability of Article 21 in relation to the manner of exercise of Parliamentary privilege, as affirmed in the cases of Pandit Sharma and UP Assembly has to be understood in light of the expanded scope of the said fundamental right interpreted as above. 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 case a member's personal liberty was threatened by imprisonment of committal in execution of Parliamentary privilege, Article 21 would be attracted. 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 why the member, or indeed a non-member, should not be entitled to the protection of Article 21, or for that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the petitioner. No 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.... (Emphasis supplied) 235. The question of extent of judicial review of Parliamentary matters has to be resolved with reference to the provision contained in Article 122(1) that corresponds to Article 212 referred to in Pandit Sharma (II) . On a plain reading, Article 122(1) prohibits the validity of any proceedings in Parliament from being called in question in a court merely on the ground of irregularity of procedure . In other words, the procedural irregularities cannot be used by the court to undo or vitiate what happens within the four walls of the legislature. But then, 'procedural irregularity' stands in stark contrast to 'substantive illegality' which cannot be found included in the former. We are of the considered view that this specific provision with regard to check on the role of the judicial organ vis 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 sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has the right to make or unmake any law whatever, this Court in the case of UP Assembly concluded thus in Paras 39 and 40: 39. Our legislatures have undoubtedly plenary powers, but these 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 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 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 fundamental rights, their legislative actions are liable to be struck down by courts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction 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 a written Constitution which constitutes the fundamental and in that sense a higher law and acts as a limitation upon the legislature and other organs of the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of 'limited government'. Judicial review is, indeed, an incident of and flows from this concept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authority under the Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State. It is to be noted that the British Parliament with the Crown is supreme and its powers are unlimited and courts have no power of judicial review of legislation. 63. But it is the duty of this Court to interpret the Constitution for the meaning of whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nality clause relatable to the powers of the President, this Court in the case of Union of India v. Jyoti Prakash Mitter (1971)ILLJ256SC 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. 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 was coloured by the advice or representation made by the executive or it was founded on no evidence. 240. 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 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: If, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction in respect of any matter connected with the disqualification of a member of a House under this Schedule. It was in the context of these provisions that questions 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 Hollohan v. Zachillhu [1992] 1 SCR 686. The matter was examined by this Court with reference, amongst others, to the immunity under Article 122, exclusivity 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-justifiable area. Construing the word finality and referring, inter alia, to 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-justifiable legislative area. The Court referred to the case of Express Newspaper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 in the area is limited in the manner indicated. If the adjudicatory authority is a tribunal, as indeed we have held it to be, why, then, should its scope be so limited? The finality clause in Paragraph 6 does not completely exclude the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. The principle that is applied by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional grant (sic ground) for disqualification and for adjudication of disputed disqualifications, seek to create a non-justifiable 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 seeks to impart finality to the decision of the speakers/Chairmen is valid. But the concept of statutory finality 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 fides, non-compliance with Rules of Natural Justice and perversity, are concerned. 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 from mere irregularities of procedure. The deeming 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction under the Tenth Schedule, the proceedings before him are declared by Para 6 (2) of the Tenth Schedule to be proceedings in Parliament within the meaning of Article 122. Yet, the said jurisdiction was not accepted as non-justifiable. In this view, we are unable to subscribe to the proposition that there is absolute immunity available to the Parliamentary proceedings relating to Article 105(3). It is a different matter as to what parameters, if any, should regulate or control the judicial scrutiny of such proceedings. 247. In the case of UP Assembly, the issue was authoritatively settled by this Court, and it was held, at pages 455-456, as under: Article 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. (Emphasis s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 506 507 observed as under: 506. Article 122 of the Constitution prevents this Court from going into any question relating to irregularity of proceedings in Parliament. XXX 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 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Inquiry) Act, 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 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 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) 252. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing 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 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 courts of judicature in India have the power of judicial review to determine the existence of privilege but once privilege 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 outside its walls, in a matter supported by an acknowledged privilege, there woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 widened in that illegality, irrationality and procedural impropriety could be causes, but such principles have absolutely no basis in judging Parliament's action. 260. While we agree 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 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 save the Parliamentary proceedings. 261. It is the submission of the learned Additional Solicitor General that the proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interfere if the grievance brought before it is restricted to allegations of irregularity of procedure . But in case gross illegality or violation of constitutional provisions is shown, the judicial review will not be inhibited in any manner by Article 122, or for that matter by Article 105. 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 partisan action in the name of exercise of privilege. We are not going into this issue but citing the incident as an illustration. 266. Having concluded that this Court has the jurisdiction to examine the procedure adopted to find if it is vitiated by any illegality or unconstitutionality, we must now examine the need for circumspection in judicial review of such matters as concern the powers and privileges of such august body as the Parliament. 267.. The learned Counsel for petitioners have submitted that the expanded understanding of the fundamental rights in general and Articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can afford 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 are really matters covered by a statute and whose adjudication would involve the exercise of judicial power conferred by a statute or the Constitution. 271. According to the learned Additional Solicitor General, the discussion 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. 272. In above context, he would refer to the case of Jatish Chandra Ghosh v. Hari Sadhan Mukherjee 1961CriLJ743 . In that case, Dr. Ghosh, a member of the legislative assembly, had published in a journal certain questions which he had p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 motive cannot render the passing of the law mala fide. This fund of transferred malice is unknown in the field of legislation. (Emphasis supplied) 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 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 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 pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Charter interests, the courts must inquire into the legitimacy of a claim of parliamentary privilege.... (Emphasis supplied) 276. While we have already rejected the reliance on the case mentioned 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. 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 erosion of fundamental principles of the constitutional scheme are settled propositions of Indian jurisprudence. 277. In the case of State of Rajasthan v. Union of India [1978]1SCR1 , while dealing with the issues arising out of communication by the then Union Home Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rights guaranteed by Part III. He submits that if the rules framed under Article 118 (which corresponds to Article 208) 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. 280. 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 Houses of Parliament in exercise of enabling powers under Article 118(1), 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(1), is not irregularity of procedure but illegalities or unconstitutionalities. 281. 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 business of the company is being conducted with inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its mind to the relevant materials before it. XXX 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'. (Emphasis supplied) 284. The case of S.R. Bommai v. Union of India [1994] 2 SCR 644 had given rise to challenge to the constitutional validity of the proclamation under Article 356 issued by the President, inter alia, ordering dissolution 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 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 lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f interpretation. However, justifiability 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 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) At the same time he circumscribed the limits by observing, in Para 260, as under: The traditional parameters of judicial review, therefore, cannot be extended to the area of exceptional and extraordinary powers exercised under Article 356. The doctrine of proportionality cannot be extended to the power exercised under Article 356.... In Para 215, he held that: 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 in which the decision had been reached. The satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (Emphasis supplied) A controversy similar to the one in the case of S.R. Bommai arose before this Court in Rameshwar Prasad v. Union of India AIR2006SC980 . The questions raised once again 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 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. Summary of the Principles relating to Parameter of Judicial Review in relation to exercise of Parliamentary Provisions 285. We may summar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouchstone of fundamental rights or the constitutional provisions is not correct; j. If a citizen, whether a non-member or a member of the Legislature, complains that his fundamental rights under Article 20 or 21 had been contravened, it is the duty of this Court to examine the merits of the said contention, especially when the impugned action entails civil consequences; k. There is no basis to claim of bar of exclusive cognizance or absolute immunity to the Parliamentary proceedings in Article 105(3) of the Constitution; l. The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other Constitutional provisions, for example Article 122 or 212; m. Articles 122(1) and Article 212(1) displace the broad doctrine of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governance provided by Constitution of India n. Article 122(1) and Article 212(1) prohibit the validity of any proceedings in legislature from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaker, Lok Sabha on the floor of the House on 12th December 2005 that nobody would 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. 287. On the other hand, it has been argued by Shri Andhyarujina that no mala 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 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. 288. 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 mala 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e would concede certain financial gains on account of arrangements with the television channels for telecast of the programme in question. 292. We are unable to subscribe to this reasoning so as to find fault with the action that has been impugned before us. We are not concerned here with what kind of gains, financial or otherwise, those persons made as had conceived or engineered the sting operations leading to the material being brought into public domain through electronic media. This was not an area of anxiety even for the Houses of Parliament when they set about probing the matter resulting ultimately in expulsions. The sole question that was required to be addressed by the Inquiry Committees and the Legislative chambers revolved around the issue of misconduct attributed to the individual members bringing the House in disrepute. We, therefore, reject the above contention reiterating what we have already concluded, namely, that the expediency and necessity of exercise of such a power by the Legislature is for determination by the latter and not by the Courts. 293. The petitioners have questioned the validity of the impugned actions on the ground that the settled procedure and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendations made have been accepted by passing of resolutions by the two Houses that have adopted the reports of the respective Committees. 298. 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 argument of ad-hoc procedure, therefore, does not appeal to us. 299. 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 of natural justice were flouted. In this context, the grievances of the petitioners are manifold. They would state that proper opportunity was not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be expected but to proceed to draw conclusions on the basis of the available material. 302. 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 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 conclusions after viewing the same. As pointed out by the learned Counsel for Union of India, the evidence contained in the video recordings indicating demand or acceptance of money was further corroborated in two cases by the admissions made by the two Members of Rajya Sabha. Dr. Chhattrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave not raised any issue of fact. 306. 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 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. 307. Before concluding, we place on record our appreciation for able assistance rendered by learned Counsel for the parties in the matter. 308. In view of above, we find no substance in the pleas of the petitioners. Resultantly, all the Petitions and Transferred Cases questioning the validity of the decisions of expulsion of the petitioners from the respective Houses of Parliament, being devoid of merits are dismissed. C.K. Thakker, J. 309. I have had the benefit of reading the erudite judgment prepared by my Lord the Chief Justice. I am in agreement with the final order dismissing the petitions. Keeping in view, however, the issue in these matters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;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. 'Privilege' is a special right, advantage or benefit conferred on a particular person. It is a peculiar advantage or favour granted to one person as against another to do certain acts. Inherent in the term is the idea of something, apart and distinct from a common right which is enjoyed by all persons and connotes some sort of special grant by the sovereign. '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. 315. Sir Erskin May, in his well-known work 'Treatise on The Law, Privileges, Proceedings and Usage of Parliament', (23rd Edn.); p. 75 states; Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immunities . They are no doubt different in the matter of their respective contents but perhaps in no otherwise. Thus the right of the House to have absolute control of its internal proceedings may be considered as its privilege, its right to punish one for contempt may be more properly described as its power, while the right that no member shall be liable for anything said in the House may be really an immunity . 318. In 'Parliamentary Privilege - First Report' (Lord Nicholas Report), it was observed; Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their members and officers possess to enable them to carry out their parliamentary functions effectively. Without this protection members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished. RAISON D'ETRE FOR PRIVILEGES 319. The raison d'etre for these privileges is again succinctly explained by Sir Erskine May thus; The distinctive mark of a privilege is its ancillary character. The privileges of Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates; Each House has also the power to punish members for disorderly behavior, and other contempt's of its authority, and also to expel a member for any cause which seems to the body to render it unfit that he continue to occupy one of its seats. This power is sometimes conferred by the constitution, but it exists whether expressly conferred or not. It is a necessary and incidental power, to enable the house to perform its high functions and is necessary to the safety of the State. It is a power of protection. A member may be physically, mentally, or morally wholly unfit; he may be affected with a contagious disease, or insane, or noisy, violent and disorderly, or in the habit of using profane, obscene, and abusive language. And independently of parliamentary customs and usages, our legislative houses have the power to protect themselves by the punishment and expulsion of a member and the Courts cannot inquire into the justice of the decision, or look into the proceedings to see whether opportunity for defense was furnished or not. (emphasis supplied) 323. Another well-known authority on the point is Willoughby, who in his work Constitutional Law of the United States , (Second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither House of Congress to punish or expel its members for cause is recognized in the Constitution which provides that each House may punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. Punishment for misbehavior may in a proper case be by imprisonment and may be imposed for failure to observe a rule for preservation of order. In the case of the Senate, the right to expel extends to all cases where the offence is such as in the judgment of the body is inconsistent with the trust and duty of a member (Chapman Re, (1896) 166 US 661 : 41 L Ed 1154). 324. Attention of the Court was also invited to certain decisions of the Supreme Court of the United States. In Chapman, Re, 166 US 661 (1891) : 41 L Ed 2nd 1154, the Supreme Court before more than a century, recognized the power of the Senate to expel a member where an act of the Member was such as in the judgment of the Senate was inconsistent with the 'trust and duty' of a member. Reference was made to William Blount, who was expelled from the Senate in July, 1797, for 'a high misdemeanor entirely inconsistent with his public trust and duty as a senator.' It was also state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to judicial interference. 329. 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 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 behavior on the part of the Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process. (emphasis supplied) 330. From the above cases, it is clear that in the United States, the House possesses the power of observance of discipline by its members and in appropriate cases, such power extends to expulsion. It is also clear that such power has been actually exercised for disorderly behavior in the House as also outside the House, where the House was satisfied that the member was 'unfit' physically, mentally or morally even if such conduct could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it undertakes the function of examining its administration of the law relating to its internal affairs. (emphasis supplied) 333. It may also be stated that Odger in his 'Australian Senate Practice', (11th Edn.; p.57) observes; The recommendation, and the consequent provision in Section 8 of the 1987 Act, was opposed in the Senate. It was argued that there may well be circumstances in which it is legitimate for a House to expel a member even if the member is not disqualified. It is not difficult to think of possible examples. A member newly elected may, perhaps after a quarrel with the member's party, embark upon highly disruptive behavior in the House, such that the House is forced to suspend the member for long periods, perhaps for the bulk of the member's term. This would mean that a place in the House would be effectively vacate, but the House would be powerless to fill it. Other circumstances may readily be postulated. The House, however, denied themselves the protection of expulsion. Lumb and Ryan (''The Constitution of the Commonwealth of Australia'; 1974 Edn.) stated that each House of the Federal Parliament has the right to suspend a member for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation of the dignity and usefulness of a body. Yet expulsion, though it vacates the seat of a member, does not create any disability to serve again in Parliament. The learned Counsel for the parties also drew our attention to certain cases from Canada. We may notice only few recent decisions. 336. 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 cameras . The application was based on the Canadian Charter of Rights and Freedoms which guaranteed freedom of expression and freedom of press. The Corporation claimed that it was possible to film the proceedings from the public gallery with modern equipments. The Speaker, however, declined permission on the ground that Corporation's proposal would interfere with the decorum and orderly proceedings of the House . The Trial Judge granted the claim which was upheld in appeal. The Speaker approached the Supreme Court. 337. One of the questions raised before the Supreme Court was as to whether the House could exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute 'parliamentary' or 'legislative' jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body. (emphasis supplied) 341. 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 executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other. 342. Reference was also made to Fred Harvey v. Attorney General for New Brunswick (1996) 2 SCR 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lege. As clarified in Canadian Broadcasting Corporation, the courts may question whether a claimed privilege exists. This screening role means that where it is alleged that a person has been expelled or disqualified on invalid grounds, the courts must determine whether the act falls within the scope of parliamentary privilege. If the court concludes that it does, no further review lies. (emphasis supplied) 343. It was also stated that British Jurisprudence makes distinction between privileges asserted by resolution and privileges effected automatically by statute. In respect of privileges asserted by resolution, British Courts have developed a doctrine of necessity, enabling them to inquire whether the action taken by resolution is necessary to the proper functioning of the House. The 'necessity inquiry' does not ask whether the particular action at issue was necessary, and hence does not involve substantive judicial review. It rather asks whether the dignity, integrity and efficiency of the legislative body could be maintained if it were not permitted to carry out the type of action sought to be taken, for example to expel a member from the Legislature or disqualify a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... casion and manner of its exercise and such exercise was not reviewable by the courts. However, the existence and scope of the privileges could be inquired into by Courts. 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 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s absolute prerogatives and Commons' insistence for powers, privileges and immunities; struggle between high handed actions of Monarchs and People's claim of democratic means and methods. Parliamentary privileges are the rights which Houses of Parliament and members possess so as to enable them to carry out their functions effectively and efficiently. Some of the parliamentary privileges thus preceded Parliament itself. They are, therefore, rightly described by Sir Erskine May as 'fundamental rights' of the House as against the prerogatives of the Crown, the authority of ordinary Courts of Law and the special rights of the House of Lords. 348. 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 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. 349. As Hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be re-elected and no objection can be raised against his re-election, as was the case of John Wilkes in 1769. O. Hood Phillips also states ('Constitutional and Administrative Law', Fourth Edition; p. 180) that the House may also expel a member, who although not subject to any legal disability, is in its opinion unfit to serve as a member. This is commonly done when the Court notifies the Speaker that a member has been convicted of a misdemeanor. The House cannot prevent an expelled member from being re-elected, as happened several times in the case of John Wilkes between 1769 and 1794, but it can refuse to allow him to take seat. 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 disqualifications unrecognized by law but it may expel any member who conducts himself in a manner unfit for membership. Sir William Anson in The Law and Custom of the Constitution , (Fifth Edn; Vol. I; pp. 187-88) states; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re available, viz. suspension from the service of the House and expulsion. In some cases expulsion has been inflicted in addition to committal. There was a sub-topic as under; Expulsion by the Commons The purpose of expulsion is not so much disciplinary as remedial, not so much to punish Members as to rid the House of persons who are unfit for membership. It may justly be regarded as an example of the House's power to regulate its own constitution. But it is more convenient to treat it among the methods of punishment at the disposal of the House. In Twenty-third Edition by Sir William McKay (2004), Chapter 9 titles (Penal jurisdiction of Both Houses). The relevant discussion reads thus; PUNISHMENT OF MEMBERS In the case of contempt's committed against the House of Commons by Members, or where the House considers that a Member's conduct ought to attract some sanction (see pp. 132-33), two other penalties are available in addition to those already mentioned : suspension from the service of the House, and expulsion, sometimes in addition to committal. Under sub-topic 'Expulsion', it was stated; EXPULSION The expulsion by the House of Commons of one of its Members m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... House of Commons wrote a pamphlet making the following comment; Nothing but brute force, or the pressing fear of it would reform Parliament. Contempt proceedings were initiated against Hobhouse and he was imprisoned. 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-who took oaths according to Justice but voted for Party. He was reprimanded. Mr. Sandham was likewise admonished in 1930 for leveling allegations against the Members of the House. Special reference was made to Bradlough v. Gossett (1884) 12 QBD 275. In that case, B, duly elected Member of Borough was refused by the Speaker to administer oath and was excluded from the House. B challenged the action. It was held that the matter related to the internal management of 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 their own Members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the supposition) willfully disregard it, they resemble mistaken or unjust judges; but in either case, there is in my judgment no appeal from their decision. The law of the land gives no such appeal; no precedent has been or can be produced in which any Court has ever interfered with the internal affairs of either House of Parliament, though the cases are no doubt numerous in which the Courts have declared the limits of their powers outside of their respective Houses. This is enough to justify the conclusion at which I arrive. 357. 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 with powers, privileges and rights of Parliament over its members. I may also refer to a case which is very much relevant and was referable to a point in time our Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se regrets. 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. Baker proved that the House of Commons possessed and continued to possess power to expel a Member for his objectionable activity not only in the House in his capacity as a Member as such but also outside the House if it is found to be otherwise improper, or tarnishing the image of the House in public eye or making him 'unfit' to continue to be a Member of an august body. [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 immunity was available to the House of Commons on the day the Amendment came into force, i.e. on June 20, 1979]. 359. The petitioners strongly relied upon a decision of the Judicial Committee of the Privy Council in Edward Keilley v. William Carson (1842): 4 MOO PC 63 : 13 ER 225. K was a District Surgeon and Manager of Hospital while C was a M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their Legislative functions, they are justified in acting by the principle of the Common Law. But the power of punishing any one for past misconduct as a contempt of its authority, and adjudicating upon the fact of such contempt, and the measure of punishment as a judicial body, irresponsible to the party accused, whatever the real facts may be, is of a very different character, and by no means essentially necessary for the exercise of its functions by a local Legislature, whether representative or not. All these functions may be well performed without this extraordinary power, and with the aid of the ordinary tribunals to investigate and punish contemptuous insults and interruptions. 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, and it is engaged in more importa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 360. 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 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 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 [Articles 105(1), (2); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to the existence of such a body as the Assembly of Dominica, and the proper exercise of the functions which it is intended to execute? It is necessary to distinguish between a power to punish for a contempt, which is a judicial power, and a power to remove any obstruction offered to the deliberations or proper action of a Legislative body during its sitting, which last power is necessary for self-preservation. If a Member of a Colonial House of Assembly is guilty of disorderly conduct in the House whilst sitting, he may be removed, or excluded for a time, or even expelled; but there is a great difference between such powers and the judicial power of inflicting a penal sentence for the offence. The right to remove for self-security is one thing, the right to inflict punishment is another. The former is, in their Lordships' judgment, all that is warranted by the legal maxim that has been cited, but the latter is not its legitimate consequence. To the question, therefore, on which this case depends, their Lordships must answer in the negative. (emphasis supplied) (See also Broom's Legal Maxims, 10th Edn; p.314) With respect, the above observations lay down correct proposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted outside the House and disclosed in curial proceedings which may, in special circumstances, form a basis for the exercise of the power of expulsion based upon a finding by the House that such is necessary to its existence or to the orderly exercise of its important legislative functions. (emphasis supplied) Wallace, P. agreed with the learned Chief Justice and observed; ...I am of the opinion that the Legislative Council has an implied power to expel a member if it adjudges him to have been guilty of conduct unworthy of a member. The nature of this power is that it is solely 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 inspired by the said defensive objectives. The manner and the occasion of the exercise of the power are for the decision of the Counsel. (emphasis supplied) Sugerman, J. in concurring opinion formulated the doctrine of necessity in an effective manner by making the following instructive observations; This necessity compels not only the conceded power to expulsion arisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a miscarriage of justice. 16th March 1695 Sir John Trevor (Yarmouth, Isle of might) Corruption (Speaker of the House of Commons). Paid 1,000 guineas from the Corporation of London on passage of the Orphans Bill. 26th March 1695 John Hungerford (Scarborough) Paid 20 guineas from the Corporation for his conduct as Chairman of the Committee of the Whole House on the Orphans Bill. 1st February 1698 Charles Duncombe (Downton) Obliged to pay o = 10,000 to public funds, Duncombe bought Exchequer Bills at a 5% discount and persuaded the seller (John da Costa) to endorse them as though they had been paid to him for excise duty. This allowed him to pay them in at face value and keep the discount himself. 1st February 1698 John Knight (Weymouth and Melcombe Regis) Persuaded his brother William and Reginald Marriott, a Treasury Official, falsely to endorse o?=7,000 of Exchequer Bills as though they were paid to settle tax payments (this meant that the Bills, circulated at a 10% discount, increased to their face value). Tried to persuade Marriott to take the full blame. 10th February 1699 James Isaacson (Banbury) Commissioner of Stamp Duty; this office was a disqualification under the Lottery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Richard Steele (Stockbridge) Seditious libel. Published an article in The Guardian and a pamphlet called The Crisis exposing the government's support for French inaction on the demolition of Dunkirk; demolition was required under the Treaty of Utrecht. 2nd February 1716 Thomas Forster (Northumberland) Participation in the 1715 Jacobite rebellion (he was General of all the pretender's forces in England). 23rd March 1716 Lewis Pryse (Cardiganshire) Refused to attend the House to take oaths of loyalty after the Jacobite rebellion. 22nd June 1716 John Carnegie (Forfarshire) Participation in the 1715 Jacobite rebellion. 23rd January 1721 Jacob Sawbridge (Cricklade) Director of the South Sea Company. 28th January 1721 Sir Robert Chaplin, Bt. (Great Grimsby) Director of the South Sea Company. 28th January 1721 Francis Eyles (Devizes) Director of the South Sea Company. 30th January 1721 Sir Theodore Janssen, Bt. (Yarmouth, Isle of might) Director of the South Sea Company. 8th March 1721 Rt. Hon. John Aislabie (Ripon) Negotiated the agreement to take over the national debt between the South Sea Company and the government, as Chancellor of the Exchequer; received o?=20,000 of South ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (17th February 1769 John Wilkes (Middlesex) Returned despite his previous expulsion. The House resolved that he was, and is, incapable of being elected a Member to serve in the present Parliament. ) 4th December 1783 Christopher Atkinson (Hedon) Convicted of perjury after swearing that accusations against him of fraud were untrue. The accusations related to his dealings with the Victualling Board, and were in a letter printed in the General Advertiser on 31st January 1781. 2nd May 1796 John Fenton Cawthorne (Lincoln) Convicted by court martial of fraud and embezzlement of the funds of the Westminster Regiment of the Middlesex Militia; cashiered for conduct unbecoming the character of an officer and a gentleman. 23rd May 1810 Joseph Hunt (Queenborough) Absconded to Lisbon after being found to have embezzled public funds as Treasurer of the Ordnance. During his term he left a deficit of o?=93,296. 5th March 1812 Benjamin Walsh (Wootton Bassett) Convicted (later pardoned) of attempting to defraud Solicitor-General Sir Thomas Plumer. Plumer had given Walsh a draft of o?=22,000 with which to buy exchequer bills, but Walsh used it to play the lottery, and lost; he then converted his rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parliamentary privileges in India is essentially of English origin. But the concept of parliamentary privileges was not unknown to ancient India. Prititosh Roy in his work 'Parliamentary Privilege in India' (1991) states that even during Vedic times, there were two assemblies; Sabha and Samiti which were keeping check on all actions of the King. Reference of Sabha and Samiti is found in all Vedas. In Buddhist India, we find developed parliamentary system. Members were not allowed to disobey directions of Assemblies. Offenders were answerable to Assemblies and after affording an opportunity to them, appropriate actions used to be taken against erring officers. It has thus 'rudimentary features' of parliamentary privilege of today. 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 of modern Parliamentary system were laid in various Charter Acts of 1833, 1853, 1854, 1861, 1892, 1909, etc. During 1915-50, there was remarka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereupon 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, 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 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. 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 or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has vol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament. (emphasis supplied) Articles 107-22 contain provisions as to legislative procedure. Article 118 enables both the Houses of Parliament to make Rules for regulating procedure and conduct of business. Article 121 puts restriction on discussion in Parliament in respect of conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. Article 122 prohibits courts from inquiring into or questioning the validity of any proceedings in Parliament on the ground of irregularity of procedure. It reads thus; 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. A motion was then moved to expel Mr. Mudgal which was accepted by the House and Mr. Mudgal was expelled. 366. 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 Assemblies of various States. Kaul and Shakhder in their book 'Practice and Procedure of Parliament', (5th Edn., p.262), stated; Punishment of Members: In the case of its own members, two other punishments are also available to the House by which it can express its displeasure more strongly than by admonition or reprimand, namely, suspension from the service of the House and expulsion. EXPULSION OF MEMBERS AND COURTS 367. Concrete cases have also come before Indian Judiciary against orders of expulsion passed by the Legislature. Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nor do we share the view that it will not be right to entrust our Houses with these powers, privileges and immunities, for we are well persuaded that our Houses, like the House of Commons, will appreciate the benefit of publicity and will not exercise the powers, privileges and immunities except in gross cases. (emphasis supplied) 370. Harmoniously interpreting and reconciling Articles 194(3) and 19(1)(a), the Court held that in respect of parliamentary proceedings, Article 19(1)(a) had no application. 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. 371. 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) 1 SCR 413 : AIR 1965 SC 745. Though Keshav Singh was not a case of expulsion of a member of Legislature, it is important as in exercise of 'advisory opinion' under Article 143 of the Constitution, a larger Bench of seven Judges considered various questions, including powers, privileges and immunities of the Legislature. 372. In that case, K, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nection it is necessary to remember that the status, dignity and importance of these two respective institutions, the Legislatures and the Judicature, are derived primarily from 'the status dignity and importance of the respective causes that are assigned to their charge by the Constitution. 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 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 the House and the High Court, we must deal with the problem objectively and impersonally. There is no occasion to import heat into the debate or discussion and no justification for the use of strong language. The problem presented to us by the present reference is one of construing the relevant provisions of the Constitution and though its consideration may present some difficult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber o privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was recognized by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognized by the English courts, it would still be upheld under the latter part of Clause (3) only on the ground that it was in fact claimed by the House of Commons. In other words, the inquiry which is prescribed by this clause is : is the power in question shown or proved to have subsisted in the House of Commons at the relevant time ? It would be recalled that Article 194(3) consists of two parts. The first part empowers the Legislature to define by law from time to time its powers, privileges and immunities, whereas the second part provides that until the legislature chooses so to defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be judged solely by the House which it concerned, even when the rights of third parties were involved, or whether it might in certain cases be decided in the courts, and, if so, in what sort of cases. The points of view adopted by the Parliament and the courts appeared to be irreconcilable. The courts claimed the right to decide for themselves when it became necessary to do so in proceedings brought before them, questions in relation to the existence or extent of these privileges, whereas both the Houses claimed to be exclusive judges of their own privileges. 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. 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 j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of each House over its internal proceedings is absolute and cannot be interfered with by the 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 warrant of committal. Paying tribute to English genius, the learned Chief Justice proceeded to observe; It is a tribute to the remarkable English genius for finding pragmatic ad hoc solutions to problems which appear to be irreconcilable by adopting the conventional method of give and take. The result of this process has been, in the words of May, that the House of Commons has not for a hundred years refused to submit its privileges to the decision of the courts, and so, it may be said to have given practical recognition to the jurisdiction of the courts over the existence and extent of its privileges. On the other hand, the courts have always, at any rate in the last resort, refused to interfere in the application by the House of any of its recognized privileges. That broadly stated, is, the position of powers and privileges claimed by the House of Commons. 373. Construing Article 212 in its proper perspecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner challenged the resolution in the High Court of Allahabad under Article 226 of the Constitution. Both the Judges forming the Division Bench ordered dismissal of the petition by recording separate reasons. Sapru, J. conceded that withdrawal of a member form the House even for a brief period was a serious matter both for the member as well as for his constituency but disciplinary or punitive action for disorderly behavior of a member could be taken. Mukherji, J. took the same view. His Lordship further held that 'the House is the sole Judge of its own privileges'. In Yeshwant Rao Meghawale v. Madhya Pradesh Legislative Assembly and Ors. AIR1967MP95 , 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 petitioner challenged the action by approaching the High Court under Article 226 of the Constitution. 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 vacancies. And it was because of that power that it could expel a member. Since the Legislative Assembly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar privilege or power can actually be expressed, claimed or enjoyed that the Court will scrutinize the matter and without deleting the same from the list hold that notwithstanding the power or privilege being there it cannot be exercised, either because it is humanly impossible to do so or because the extension of the privilege of the Commons would contravene some express or special provision of the Constitution . 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. Referring to a series of cases, it was held that independent of the power and privilege of the House of Commons to constitute itself it did have and exercised at the time of coming into force of our Constitution the power to expel its members by way of punishment for misconduct or for breach of privilege or for committing contempt of the House. The majority, on the other hand, took a contrary view. Sandhawalia, J., considering historical development of law as to parliamentary privileges, obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to consider the controversy by observing that the question was whether the power of expulsion exercised by the House of Commons was to be 'wholly and exclusively treated as a part of the privilege in regard to its constitution'. Then considering English authorities and various other decisions on the point; the Court held that such power was possessed by the Legislature and was available in appropriate cases. 378. 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. I am also supported in taking this view from the discussion the Constituent Assembly had and the final decision taken. When the provisions relating to powers, privileges and immunities of Parliament and State Legislatures were considered by the Constituent Assembly, conflicting views were expressed by the Hon'ble Members. One view was in favour of making such provisions exhaustive by incorporating them in the Constitution. The other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 correction because I was present at one stage and was not present at a later stage. Under these circumstances I submit there is absolutely to question of infra dig. We are having the English language. We are having our Constitution in the English language side by side with Hindi for the time being. Why object only to reference to the privileges in England? The other point is that there is nothing to prevent the Parliament from setting up the proper machinery for formulating privileges. The article leaves wide scope for it. In other respects, the privileges and immunities of members of the Houses shall be such as may from time to time be defined by Parliament by law and, until so defined, shall be such as are enjoyed by the members of the House of Commons of the Parliament of the United Kingdom at the commencement of this Constitution . That is all what the 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 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights of Parliament as against the public. Secondly, they also extend to rights as against the individual members. For instance, under the House of Commons' power and privileges it is open to Parliament to convict any citizen for contempt of Parliament and when such privilege is exercised the jurisdiction of the court is ousted. That is an important privilege. Then again, it is open to Parliament to take action against any individual member of Parliament for anything that has been done by him which brings Parliament into disgrace. These are very grave matters-e.g., to commit to prison. the right to lack up a citizen for what parliament regards as contempt of itself is not an easy matter to define. Nor is it easy to say what are the acts and deeds of individual members which bring Parliament into disrepute. (emphasis supplied) He further stated; 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. But there is not the slightest doubt in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 privileges of the House of Commons. It seems to me that except of the sentimental objection to the reference to the House of Commons I cannot see that there is any substance in the argument that has been advanced against the course adopted by the Drafting Committee. I therefore suggest that the article has adopted the only possible way of doing it and there is no other alternative way open to us. That being so, I suggest that this article be adopted in the way in which we have drafted it. Thereafter the House decided to approve the provision relating to powers, privileges and immunities of State Legislatures. The aforesaid discussion clearly and unequivocally indicates that the Members of the Constitution wante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge of the extent of its privileges' and the Court had no jurisdiction in the matter. Courts, on the other hand, took the stand that 'when privilege conflicts with rights which they have it in charge of maintain, they will consider whether the alleged privilege is authentic, and whether it governs the case before them'. 381. Then referring to three leading cases, (i) Ashby v. White (1704) 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 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. In Halsbury's Laws of England, (4th Edition, Reissue, Vol. 34; pp. 553-54; paras 1004-05), it has been stated; 1004. The position of the courts of law. Each House of Parliament has traditionally claimed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; (Vol. I; pp. 393-94) rightly observed; 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 contradictory. If privilege of Parliament is part of the law of the land its meaning and extent must be interpreted by the courts, just like any other part of the law; and therefore neither House can add to its privileges by its own resolution, any more than it can add to any other part of the law by such a resolution. On the other hand if it is true that each House is the sole judge of its own privileges, it might seem that each House was the sole judge as to whether or no it had got a privilege, and so could add to its privileges by its own resolution. This apparent contradiction is solved if the proper application of these two maxims is attended to. The first maxim applies to cases like Ashby v. White (1704) 14 St Tr 695 and Stockdale v. Hansard (1839) 9 Ad E 1 : 112 ER 1112 in which the question at issue was the existence of a privilege claimed by the House. This is a matter of law w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r constitutional functionary. This Court, therefore, should exercise its power of judicial review with utmost care, caution and circumspection. 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 thus; It ...behaves the courts to be ever sensitive to the paramount need to refrain from trespassing on the province of Parliament or, so far as this can be avoided, even appearing to do so. (emphasis supplied) INDIAN PARLIAMENT HAS NO DUAL CAPACITY 384. It was also urged that Indian Parliament is one of the three components of the State and it does not have a 'dual capacity' like the British Parliament which is not only 'Parliament', i.e. legislative body, pure and simple, but also 'the High Court of Parliament'. Since Indian Parliament is not a 'Court of Record', it has no power, authority or jurisdiction to award or inflict punishment for Contempt of Court nor it can be contended that such action is beyond judicial scrutiny. 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 Parliamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while exercising extraordinary jurisdiction under the Constitution, the powers of the courts are absolute, unlimited or unfettered. The Constitution which conferred power of judicial review on the Supreme Court and High Courts, with the same pen and ink provided that the validity of proceedings in Parliament cannot be called in question on the ground of 'irregularity in procedure'. It is, therefore, the duty of this Court to give effect to the said provision and keeping in view the limitation, exercise the power of judicial review. 385. 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 limited privileges possesses the power to expel a member if his conduct is found to be not befitting a member of Legislature. If it is so, in my opinion, it goes without saying that Indian Parliament, which has undoubtedly much more powers than a Colonial Legislature, can take such action and it cannot be successfully contended that Parliament does not possess the power to expel a member. I am, therefore, unable to uphold t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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, hasten to add that under our Constitution, every action of every authority is subject to law as nobody is above law. Parliament is not an exception to this 'universal' rule. It is, therefore, open to an aggrieved party to approach this Court raising grievance against the action of Parliament and if the Court is satisfied within the limited parameters of judicial review that the action is unwarranted, unlawful or unconstitutional, it can set aside the action. But it is not because Parliament has no power to expel a member but the action was not found to be in consonance with law. PROCEDURAL IRREGULARITY : EFFECT 388. It was then contended that the impugned actions taken by Lok Sabha and Rajya Sabha are illegal and unconstitutional. It was stated that the immunity granted by Clause (1) of Article 122 of the Constitution ('Courts not to inquire i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. (emphasis supplied) [See also Kihoto Hollohan v. Zachillhu and Ors. [1992]1SCR686 ]. 391. The learned Counsel for the respondents have, in my opinion, rightly not disputed the above statement of law made in the larger Bench decisions of this Court. They, however, stated that a Committee was appointed by Parliament, which went into the allegations against the petitioners. Adequate opportunity had been afforded to the members and after considering the relevant material placed before it, a decision was taken holding them guilty. The said action was approved by the House and as such, the law laid down in the above decisions has no application to the fact-situation and no grie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive cross-examination eventually turns into a battle of wits and that should not be the atmosphere of a Court of Honour. Here the effort should be to simplify the procedure and to lay down clear rules which ensure ascertainment of Truth, fairplay and justice to all concerned. I am, therefore, of opinion that normally the questions should be put by the Chairman and the Members but that does not mean that the counsel appearing in the case is debarred from putting any questions whatsoever. It is open to the Committee in the light of particular circumstances, of which they alone are the best judges, to permit the counsel to put questions to a witness with the permission of the Chairman. I feel that this should meet the requirements of the present case. (emphasis supplied) OBSERVANCE OF NATURAL JUSTICE 395. It was also urged that the Committee had not given sufficient opportunity to the petitioners to defend them and had not complied with the principles of natural justice and fair play. It was submitted that the doctrine of natural justice is not merely a matter of procedure but of substance and any action taken in contravention of natural justice is violative of fundamental rights guar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever length the incident it may be . There are 20-25 tapes and the total footage pertains to money acceptance. Each tape is a complete tape showing the whole incident. In the course of her evidence Ms. Suhasini Raj has given the details of the money given to the MPs directly as also through the middlemen. 34. As against this evidence are the statements of all the said ten members. The Committee note that all the members have denied the allegations leveled against them. 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 picture and they needed full tapes including the preceding and succeeding scenes to prove what they 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 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 Committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tern action also needs to be taken against the middlemen, touts and persons masquerading as Private Secretaries of members since they are primarily responsible for inducing members to indulge in such activities. 41. The Committee note that in the case of misconduct or contempt's committed by its members, the House can impose these punishments: admonition, reprimand, withdrawal from the House, suspension from the service of the House, imprisonment, and expulsion from the House. The Committee, according to me, rightly made the following observations; 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 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 recognized that conduct of members should not be contrary to the Rules or derogatory to the dignity of the House or in any way inconsistent with the standards which Parliament is entitled to expect of its members. 43. The Committee wish to emphasize th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of Parliament as an institution and a pillar of our democracy is eroded. (emphasis supplied) The Committee accordingly recommended (by majority of 4 : 1) expulsion of all the ten members from the membership of Lok Sabha. 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. So far as Rajya Sabha is concerned, the Committee on Ethics recorded a similar finding and observed that it was convinced that the member had accepted money for tabling questions in Rajya Sabha and the pleas raised by him in defense were not well-founded. The Committee rightly stated; 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. The Committee then observed; The Committee has applied its mind to the whole unfortunate incident, gave full opportunity to the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of 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 discussed with all Hon. Leaders of different Parties, including the Hon. Leader of the Opposition and all have agreed that the matter is extremely serious if proved to be correct. I shall certainly ask the hon. Members to explain what has happened. In the meantime, I am making a personal request to all of them 'please do not attend the Session of the House until the matter is looked into and a decision is taken'.... I have no manner of doubt that all sections of the House feel deeply concerned about it. I know that we should rise to the occasion and we should see that such an event does not occur ever in future and if anybody is guilty, he should be punished. Nobody would be spared. We shall certainly respondent to it in a manner which behaves as. Thank you very much. (emphasis supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge of their duties to the House and (in the case of the Commons) to the electorate. Hilaire Burnett, ('Constitutional and Administrative Law', Fourth Edn.; pp. 571-72) also refers to Cash for questions , which started in 1993. It was alleged that two members of Parliament, Tim Smith and Neil Hamilton received payments/gifts in exchange for tabling parliamentary questions. Both of them had ultimately resigned. The rapidly accelerating and intensifying atmosphere of suspected corruption-sleaze-in public life caused the Prime Minister to appoint a judicial inquiry into standards of conduct in public life. The author also observed; The cash for questions affair also raises issues concerning the press . 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. Solomon Commission and Nolan Committee also considered the problem of corruption and bribery prevailing in the system and made certain suggestions and recommendations including a recommendation to clarify the legal position as to trial of such cases. 401. I may state that I am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the House, a member can never be expelled. If representation of the constituency is taken to be the sole consideration, no action can be taken which would result in absence of representation of such constituency in the House. Such interpretation would make statutory provisions (the Representation of the People Act, 1951) as also constitutional scheme (Articles 84, 102, 190, 191, 192, Tenth Schedule, etc.) non-workable, nugatory and otiose. If a member is disqualified or has been convicted by a competent court, he has to go and at least for the time being, till new member is elected, there is no representation of the constituency in the House but it is inevitable and cannot be helped. 405. 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), I fail to understand why in principle, an action of expulsion is impossible or illegal. In a given case, such action may or may not be lawful or called for, but in theory, it is not possible to hold that while the former is permissible, the latter is not. If it is made referable to representation of the constituency, then as observed in Raj Narain, withdrawal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances under which it can be exercised and all other considerations which are relevant and germane to the exercise of such power. A provision of law cannot be objected only on the ground that it is likely to be misused. 408. In State of Rajasthan v. Union of India [1978]1 SCR 1 dealing with an identical contention, Bhagwati, J. (as His Lordship then was) stated; 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. (emphasis supplied) [see also Ajit Kumar Nag v. Indian Oil Corporation AIR 2005 SC 4217 ]. I am reminded what Chief Justice Marshall stated before about two centuries in Providence Bank v. Alphens Billings 29 US 504 (1830): 7 Law Ed 939; This vital power may be abused; but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the State Governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents furnish the on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rably performed their functions, exercised their powers and discharged their duties effectively, efficiently and sincerely and there is no reason to doubt that in coming years also they would continue to act in a responsible manner expected of them. I am equally confident that not only all the constituents of the State will keep themselves within the domain of their authority and will not encroach, trespass or overstep the province of other organs but will also act in preserving, protecting and upholding the faith, confidence and trust reposed in them by the Founding Fathers of the Constitution and by the people of this great country by mutual regard, respect and dignity for each other. On the whole, the situation is satisfactory and I see no reason to be disappointed for future. With the above observations and pious hope, I dismiss the Writ Petition as also all transferred cases, however, without any order as to costs. R.V. Raveendran, 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. - Lord Denning 412. I have had the privilege of reading the exhaustive and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by 4 p.m. on 21st December, 2005. The Committee is authorized to follow its own procedure. The Report will be presented before the House for its consideration. 414. The Lok Sabha Secretariat sent communications dated 12.12.2005 to the ten members calling for their comments in regard to the improper conduct shown in the video footage. They were also instructed not to attend the sitting of the House till the matter was finally decided. The members submitted their responses and denied any wrong doing on their part. The Speaker secured VCDs containing the video footage showing 'improper conduct' from the News Channel. The ten members were supplied copies thereof. The Enquiry Committee examined on oath Shri Aniruddha Bahl, Ms. Suhasini Raj and Shri Kumar Badal of the Portal Cobrapost.Com who had carried the sting operation. The Committee viewed all the VCDs containing the relevant video footage as also the unedited raw video footage and perused the transcripts. The ten members alleged that the video tapes were morphed/manipulated, but, however, refused to view the video clippings in the presence of the Committee and point out the portions which according to them were morphed/m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andra Pratap Singh was unethical and unbecoming of members of Parliament and their continuance as members of Lok Sabha is untenable and resolves that they may be expelled from the membership of Lok Sabha. An amendment to the Motion for referring the matter to the Privileges Committee, moved by a member (Prof. Vijay Kumar Malhotra), was rejected. After a debate, the Motion was adopted by voice vote. As a consequence on the same day, a notification by the Lok Sabha Secretariat was issued notifying that 'consequent on the adoption of a Motion by the Lok Sabha on the 23rd December, 2005 expelling the ten members from the membership of the Lok Sabha', the ten members ceased to be members of the Lok Sabha, with effect from the 23rd December, 2005 (afternoon).' 417. Similar are the facts relating to Dr. Chhattrapal Singh Lodha, Member of Rajya Sabha. On 12.12.2005, the Chairman of the Rajya Sabha made a statement in the House that the dignity and prestige of the House had suffered a blow by the incidents shown on the TV Channel, that it was necessary to take action to maintain and protect the integrity and credibility of the House, and that he was referring the episode to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iamentary privilege under Article 105(3) is impermissible. It is, therefore, submitted that Parliament has no power of expulsion (permanent cessation of membership). On the other hand, the Union of India and the Attorney General assert that Parliament has such power. The assertion is based on two premises. First is that Article 101 relating to vacancies is not exhaustive. The Second is that the power of Parliament to expel a member is a part of the powers, privileges and immunities conferred on the Parliament, under Article 105(3), and it is distinct and different from 'disqualifications' contemplated under Article 102. 419. 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 bonafide or commendable the action is, when it is challenged as being unconstitutional, this Court as the interpreter and Guardian of the Constitution has the delicate task, nay the duty, to pronounce upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration are : (i) Whether Article 101 and 102 are exhaustive in regard to the modes of cessation of membership of Parliament; and whether expulsion by the House, not having been specified as a mode of cessation of membership, is impermissible. (ii) If the answer to the above question is in the negative, whether the Parliament has the power to expel its members (resulting in permanent cessation of membership) as a part of its powers, privileges and immunities under Article 105(3). Relevant Principles : 421. I may first refer to the basic principles relevant for the purpose of constitutional interpretation in the context of the first question. I. Unlike British Parliament, Indian Parliament is not sovereign. It is the Constitution which is supreme and sovereign and Parliament will have to act within the limitations imposed by the Constitution: 422. There is a marked distinction between British Parliament and the Indian Parliament. British Parliament is sovereign. One of the hallmarks of such sovereignty is the right to make or unmake any law which no court or body or person can set aside or override. On the other hand, the Indian Parliament is a creature of the Constitution and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, they function within the limits prescribed by the material and relevant provisions of the Constitution. - In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign. -. Therefore, there can be no doubt that the sovereignty which can be claimed by the Parliament in England, cannot be claimed by any Legislature in India in the literal absolute sense-. We feel no difficulty in holding that the decision about the construction of Article 194(3) must ultimately rest exclusively with the Judicature of this country. Article 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. [emphasis supplied] In Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461, it was observes that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be incorporated by such reference, are only those provisions of the earlier statute which relate to matters not expressly provided in the latter statute, and which are compatible with the express provisions of the latter statute. 424. The legislative device of incorporation by reference is a well-known device where the legislature, instead of repeating the provisions of a particular statute in another statute, incorporates such provisions in the latter statute by reference to the earlier statute. It is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier statute into the later. [See Mary Roy v. State of Kerala : [1986]1SCR371 ]. Lord Esher M.R. stated the effect of incorporation in Clarke v. Bradlaugh 1881 (8) QBD 63 thus: If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act as if they had been actually written in it with the pen, or printed on it. 425. In U.P. Assembly case (supra), this Court while considering Article 194(3), identical in content to Article 105(3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration. After an elaborate discussion, the majority found that the power of British House of Commons, to expel any of its members, flowed from its privilege to provide for and regulate its own constitution. It was held that such power of expulsion was not available to the Indian Parliament, having regard to the fact that the written constitution makes detailed provision for the constitution of the Parliament, elections, vacation of seats and disqualifications for membership. Sandhawalia, J. (as he then was) speaking for the majority of the Full Bench observed thus : It was submitted that in view of the language of Article 194(3) each and every parliamentary privilege enjoyed by the House of Commons without any exception whatsoever must be deemed as if it were in fact written with pen and ink into the Constitution itself. According to the respondents, one must at the outset unreservedly read every power, privilege and immunity of the House of Commons within Clause (3) and consequently exercisable by the State Legislatures in India as well. However, having done that, one should thereafter proceed to scrutinize the remaining provisions of the Constitution and if some power, privil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Republican Constitution of India would incorporate this privilege for its State Legislatures. How can even one imagine that the founding fathers in the Constituent Assembly had intended to write such a privilege also into our Constitution and to deem it as part and parcel thereof? If so, to whom were the State Legislatures supposed to petition and with whom were they to counsel or remonstrate with through their chosen representatives in the obvious absence of even the institution of the Monarchy herein? (239) Similarly not one but there are tens of parliamentary privileges of the House of Commons which are closely linked with the hereditary House of Lords in England. In particular the power of the House of Lords to punish the contemnors of the House by passing judgment as a Court was undoubted. Can one read or even imagine a House of Lords within our polity when the very Constitution itself disapproves even a reference to any titles on the basis of heredity and blood alone? Other examples of this nature could perhaps be multiplied ad infinitum but it would perhaps suffice to mention two other undoubted privileges of the House of Commons. It is not in dispute that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mic problems of this country. Our Constitution-makers forged solutions and incorporated them. They made exhaustive provisions relating to Executive, Legislature, and Judiciary with checks and balances. While making specific and detailed provisions regarding Parliament, the Constitution also earmarked the areas where further provisions could be made by the Parliament by law. On the other hand, the Constitution of England is unwritten and flexible. The distribution and regulation of exercise of governmental power has not been reduced to writing. Further British Parliament was, at one time, also the highest court of justice and because of it, regarded as a superior court of record, with all its attendant trappings. 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. 429. In Re. the C.P. and Berar Sales of Motor Spirit Lubricants Taxation Act, 1938 -- the Central Provinces case, the Federal Court observed thus: for in the last analysis the decision must depend u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Houses of Parliament.- (1) The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. (2) The House of the People, unless sooner dissolved, shall continue for [five years] from the date appointed for its first meeting and no longer and the expiration of the said period of [five years] shall operate as a dissolution of the House.: Article 85 provides for the sessions of Parliament, prorogation of the Houses and dissolution of the House of the people. 432. Article 84 enumerates the qualifications for membership of Parliament. Article 102 deals with disqualifications for membership. Clause (1) of Article 102 provides that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament : 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; b) if he is of unsound mind and stands so declared by a competent court; c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to such opinion. 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. 435. It is to be noted expulsion is not mentioned as a mode of cessation of membership of the Parliament under the Constitution. Nor does it give rise to a vacancy. 436. Article 105 deals with powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof. Clauses (1) to (3) which are relevant, extracted below : 105. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof.- (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. (2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of the Constitution, its procedure and the conduct of its business. Article 119 relates to regulation by law of procedure in Parliament in relation to financial business. Article 120 relates to the language to be used in Parliament. Article 121 places a restriction on discussion in Parliament (in regard to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge). Article 122 bars courts from inquiring into proceedings of Parliament and it is extracted below: 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 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. 438. We have referred in detail to the various provisions to demonstrate that as far as the Indian Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the term of office of Vice President and provides for removal of Vice President from office by a resolution of Council of States passed by majority of all the then members of the Council and agreed to by the House of People. (iii) Article 75(2), Article 76(4) and Article 156(1) refer to the 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 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. (v) Article 315 read with Article 317 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 office or removal of all constitutional functionaries with reference to the States. Article 156(1) relates to Governor, Article 164(1) relates to Ministers, Article 165(3) relates to Advocate General, Article 179 relates to Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99 of the Act vide Section 8-A of the Act; (iii) if he is dismissed for corruption or for disloyalty to the State, vide Section 9 of the Act; (iv) if he has a subsisting contract with the appropriate Government for the supply of goods to or for the execution of any works, vide Section 9-A of the Act; (v) if he is a managing agent, manager or secretary of any company or corporation, in which the appropriate Government has a share, vide Section 10 of the Act; (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 disqualification (sub-clauses (a) to (d) of Clauses (1) and (2) of Article 102). It has also permitted the Parliament to add disqualifications, by making a law. Passing a resolution by one House, is not of course, making a law. 442. In the case of Members of Parliament, the Constitution has consciously used the word disqualification, both for 'being chosen as a member' and for 'being a member'. That means that when a member becomes disqualified as mentioned in Article 102, he becomes disentitled to continue as a Member of the House. 44 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 101 any less exhaustive. 446. Articles 102 and 101 together include all circumstances in which a membership comes to an end and the seat becomes vacant. The Constitution does not contemplate or provide for the membership of an MP coming to an end in any manner other than what is specifically provided in Articles 101 and 102. Therefore there cannot be cessation of membership, de hors Articles 101 and 102, by 'expulsion' or otherwise. Conclusions : 447. 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 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). 448. We have also noticed above that the Constitution makes express provisions for election/appointment and removal/cessation of service of the Executive (President ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned. 451. 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 1998CriLJ2930 recognizes immunity to a member who is a bribe taker only where the 'bribe' is taken in respect of a 'vote' given by him in Parliament and not otherwise). Such cases can be fast tracked. Pending such criminal proceedings, the member can be suspended temporarily, if necessary, so as to prevent him from participating in the deliberations of the Houses. On being tried, if the member is convicted, he becomes disqualified for being or continuing as a Member under Article 102(1)(e). If he is acquitted, he is entitled to continue as a member. Though it may sound cumbersome, that apparently is what the Constitution intends. 452. 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). 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) ena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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