IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6053 OF 2008

Amarinder Singh    

... Appellant (s)

Versus

Special Committee,  Punjab Vidhan Sabha & Others               … Respondent (s)

WITH

T.C. (C) NO.1 of 2009

W.P. (C) NO. 442 of 2008

W.P. (C) NO. 443 of 2008

J U D G M E N T

K. G. BALAKRISHNAN, CJI

1. The appellant was the Chief Minister of the State of  

Punjab during the 12th term of the Punjab Vidhan Sabha. The  

appellant was duly elected as a member of the Punjab Vidhan  

Sabha for its 13th term.

2.      The  Punjab  Vidhan  Sabha  on  10-9-2008  passed  a  

resolution which directed the expulsion of the appellant  

for the remainder of the 13th term of the same Vidhan Sabha.  

This  resolution  was  passed  after  considering  a  report  

1

submitted  by  a  Special  Committee  of  the  Vidhan  Sabha  

(Respondent No. 1) on 3-9-2008 which recorded findings that  

the appellant along with some other persons (petitioners in  

the connected matters) had engaged in criminal misconduct.  

The Special Committee had itself been constituted on 18-12-

2007  in  pursuance  of  a  resolution  passed  by  the  Vidhan  

Sabha.  It  had  been  given  the  task  of  inquiring  into  

allegations  of  misconduct  that  related  back  to  the  

appellant’s tenure as the Chief Minister of the State of  

Punjab during the 12th term of the Punjab Vidhan Sabha. More  

specifically,  it  was  alleged  that  the  appellant  was  

responsible for the improper exemption of a vacant plot of  

land  which  was  licensed  to  a  particular  private  party  

(measuring 32.10 acres) from a pool of 187 acres of land  

that had been notified for acquisition by the Amritsar Land  

Improvement  Trust  on  5-12-2003.  The  Amritsar  Land  

Improvement Trust is a statutory body which had notified  

the plan for acquisition in pursuance of a developmental  

scheme, as contemplated under Section 36 of the Punjab Land  

Improvement  Act,  1922.  Earlier,  on  23-6-2003,  a  private  

party  (M/s.  Veer  Colonizers)  had  applied  for  a  licence  

under  Section  5  of  the  Punjab  Apartment  and  Property  

Regulation Act, 1995 to develop the above-mentioned plot of  

32.10  acres  which  was  situated  in  the  proximity  of  the  

2

Amritsar-Jalandhar  road.  At  the  time  of  the  colonizer’s  

application for a development licence, the said plot was  

not covered by any acquisition scheme, though it had been  

covered  by  two  schemes  in  the  past  which  had  lapsed  by  

then. After the notification of the scheme, the colonizer  

approached the concerned authorities, seeking an exemption  

from  the  proposed  acquisition  of  land.  Subsequently  on  

7-10-2005, the Amritsar Land Improvement Trust granted a  

No-objection certificate, thereby permitting the exemption  

of  the  said  plot  of  32.10  acres  from  the  scheme  for  

acquisition. This decision to exempt the said plot of 32.10  

acres was notified by the State Government on 13-01-2006  

under Section 56 of the Punjab Town Improvement Act. Since  

the  appellant  was  serving  as  the  Chief  Minister  of  the  

State  at  the  time,  it  was  alleged  that  the  decision  to  

exempt  the  plot  was  an  executive  act  that  could  be  

attributed to him.  

3. However, some other private parties who owned plots in  

the pool of land that had been notified for acquisition by  

the Amritsar Land Improvement Trust on 5-12-2003, raised  

objections  against  the  exemption  referred  to  above.  The  

gist of their objections is that the State Government had  

unduly  favoured  one  private  party  by  exempting  the  said  

3

plot of 32.10 acres from the scheme for acquisition. In  

fact  the  validity  of  the  exemption  was  questioned  in  

several cases instituted before the High Court of Punjab  

and Haryana, namely those of Major General Sukhdip Randhawa  

(Retd.) & Ors. Vs. State of Punjab (CWP No. 16923 of 2006),  

M/s. Daljit Singh Vs. State of Punjab  (CWP No. 20266 of  

2006), Sudarshan Kaur Vs. State of Punjab (CWP No. 2929 of  

2007) and Basant  Colonisers & Builders (P) Ltd. Vs. State  

of Punjab (CWP No. 7838 of 2008). All of these cases were  

pending before the High Court at the time of the hearings  

in the present case.    

4. Following the elections held to re-constitute the Punjab  

Vidhan Sabha in February 2007, there was a transition in  

power in the State. The 13th Vidhan Sabha was constituted on  

1-3-2007.  The  appellant  who  had  served  as  the  Chief  

Minister of the State during the 12th term of the Vidhan  

Sabha, became the leader of the opposition in the 13th term.  

In pursuance of a news report dated 22.3.2007, some members  

of  the  Legislative  Assembly  moved  a  privilege  motion  in  

respect of allegations of tampering in the proceedings of  

the 12th Vidhan Sabha (dated 1-3-2006). These allegations  

were in regard to a starred question relating to the grant  

of exemption of 32.10 acres of land. On 5-4-2007 the notice  

4

of motion was referred to the Privileges Committee of the  

House by the Speaker. Thereafter, questions were raised on  

the  floor  of  the  house  which  cast  aspersions  on  the  

appellant’s past conduct. On 18-12-2007, the report of the  

Privileges  Committee  was  tabled  before  the  House.  The  

incumbent  Chief  Minister  brought  a  motion  which  

specifically  questioned  the  appellant’s  role  in  the  

exemption  of  the  32.10  acre  plot  from  the  acquisition  

scheme  notified  by  the  Amritsar  Improvement  Trust.  

Following this motion, the Speaker of the House approved  

the constitution of a Special Committee to inquire into the  

alleged misconduct. The terms of reference for the Special  

Committee  required  it  to  examine  as  to  what  were  the  

reasons for exempting the said plot measuring 32.10 acres  

of land. As part of this inquiry, the Special Committee had  

to  examine  whether  any  rule/norms  had  been  violated  on  

account  of  this  exemption  and  whether  it  had  caused  

monetary  losses  to  the  State  exchequer.  The  stated  

objective  was  to  identify  those  responsible  for  such  

losses.   

5. The Special Committee submitted its report on 3-9-2008  

which was presented to the House on 5-9-2008. The report  

included  findings  that  Captain  Amarinder  Singh  (former  

5

Chief  Minister,  appellant  in  Civil  Appeal  No.  6053  of  

2008),  Choudhary  Jagjit  Singh  [former  Local  Bodies  

Minister,  petitioner  in  Writ  Petition  (Civ.)  No.  443  of  

2008],                        Late Sh. Raghunath Sahai Puri  

[former  Housing  Minister,  since  deceased]  and  Sh.  Jugal  

Kishore  Sharma  [former  Chairman  of  Amritsar  Land  

Improvement Trust, petitioner in Writ Petition (Civ.) No.  

442 of 2008) had been involved in ‘corruption, conspiracy  

to  cause  wrongful  loss  and  abuse  of  public  office’  in  

relation to the exemption of land from the above-mentioned  

acquisition scheme. It must be noted that out of the four  

individuals  named  in  the  report,  only  Captain  Amarinder  

Singh was elected as a member of the 13th Punjab Vidhan  

Sabha. After considering these findings, the Punjab Vidhan  

Sabha passed the impugned resolution on 10-9-2008 which is  

extracted below:  

“After accepting the report submitted by the Special  Committee appointed by this House, this august House  recommends the following action:  

*** *** ***

(i)  Captain  Amarinder  Singh  is  expelled  for  the  remaining  term of  the 13th Punjab Vidhan  Sabha. The  Secretary  of  the  Vidhan  Sabha  is  instructed  to  approach the Election Commission of India to have his  seat declared as vacant.  (ii)  The  recommendations  of  the  Privilege  Committee  have been tabled in the House on 18.12.2007 and they  be  forwarded  to  Chief  Secretary,  Punjab  Government  with the undermentioned instructions:-  

6

Because this House does not possess any facility  to  investigate  and  find  out  where  the  accused  have stashed away the ill gotten wealth or how it  has  been  distributed,  it  is  essential  to  have  custodial  interrogation.  Director  Vigilance  Department,  Punjab  which  deals  with  corruption  cases and is an arm of the Punjab Government be  instructed  to  file  a  FIR  keeping  in  mind  the  various instructions of the CrPC. The  vigilance  department  is  to  investigate  and  submit its report to the Speaker of this House  within two months from today.”

6. In pursuance of the said resolution, the secretariat of  

the Punjab Vidhan Sabha issued a notification on 10-9-2008  

which  declared  that  Captain  Amarinder  Singh  had  been  

expelled from the membership of the 13th Vidhan Sabha for  

the remaining term of the State Legislature, (that is 3.5  

years). It was also declared that his assembly constituency  

seat      (76-Patiala Town) was rendered vacant, thereby  

setting aside his election to the same. Aggrieved by the  

findings of the report submitted by the Special Committee  

on 3-9-2008, the appellant moved the High Court of Punjab  

and Haryana (C.W.P. 11548 of 2008). Following the impugned  

resolution on 10-9-2008, the said petition was withdrawn  

and C.W.P. 16216 of 2008 was instituted before the High  

Court to challenge the Special Committee’s report as well  

as the impugned resolution dated 10.9.2008. On 15-9-2008, a  

division bench of the High Court issued an order directing  

that the case be heard on merits on 1-12-2008. The High  

7

Court did not grant a stay on the operation of the impugned  

resolution,  but  granted  protection  to  Captain  Amarinder  

Singh  from  custodial  interrogation  and  directed  further  

listing on 1-12-2008. Dissatisfied with the High Court’s  

order,  the  appellant  approached  this  court  by  way  of  a  

petition  seeking  special  leave  to  appeal.  The  appellant  

contended  that  the  High  Court  ought  to  have  stayed  the  

report dated 3.9.2008 and the Resolution and Notification  

dated 10.9.2008. He apprehended that a fresh election would  

be  conducted  in  the  intervening  period,  thereby  

compromising his rights.  

7. A division bench of this court directed notice on 26-9-

2008 and referred the case for hearing by a three judge  

bench.  On  3-10-2008,  a  three  judge  bench  (B.N.  Agarwal,  

G.S.  Singhvi  and  Aftab  Alam,  JJ.]  granted  leave  in  the  

special  leave  petition  (C.A.  No.  6053/2008).  It  allowed  

Transfer Petition (C) No. 1087/2008 for transfer of CWP No.  

16216/2008  from  the  Punjab  and  Haryana  High  Court  (the  

transferred case is         T.C. (C) No. 1 of 2009,) and  

directed the same to be heard with the Civil Appeal along  

with W.P. (C) No. 442/2008 and       W.P. (C) No. 443/  

2008. The three judge bench did not grant a stay on the  

operation of the impugned resolution which had directed the  

8

expulsion of the appellant from the Vidhan Sabha. However,  

relief  was  granted  to  the  extent  that  even  though  the  

appellant  could  not  participate  in  the  legislative  

proceedings,  his  seat  would  not  fall  vacant  until  the  

adjudication  of  this  case.  A  stay  was  also  granted  in  

respect of the Vidhan Sabha’s specific directions to the  

Punjab Vigilance Department, but it was clarified that the  

appellant  and  the  petitioners  could  be  investigated  in  

accordance with law. Subsequently, the three judge bench  

found  that  the  subject  matter  touched  on  substantial  

questions of law requiring the interpretation of Article  

194(3) of the Constitution, thereby deeming it fit to refer  

these matters to a constitution bench by way of an order  

dated 11-2-2009.  

OVERVIEW OF CONTENTIONS

8.  The  counsel  appearing  for  the  appellant  and  the  

petitioners  have  prayed  that  the  impugned  resolution  as  

well as the report submitted by the Special Committee be  

invalidated in their entirety. Accordingly, the appellant  

has sought restoration of his membership for the remainder  

9

of the 13th term of the Punjab Vidhan Sabha. The main thrust  

of  the  appellant’s  contentions  is  that  the  acts  of  

constituting  the  Special  Committee  on  18-12-2007,  the  

submission of its report on    3-9-2008 and the impugned  

resolution passed by the Assembly on 10-9-2008 cannot be  

defended  as  a  proper  exercise  of  legislative  privileges  

under Article 194 of the Constitution. It was urged that  

the allegations of misconduct on part of the appellant and  

the petitioners were relatable to their executive actions  

which  in  no  way  disrupted  or  affected  the  legislative  

functions of the Punjab Vidhan Sabha. It was reasoned that  

legislative  privileges  are  exercised  to  safeguard  the  

integrity  of  legislative  proceedings  and  the  alleged  

misconduct did not threaten the same in any manner. Another  

contention was whether it was proper for the 13th Vidhan  

Sabha to exercise its privileges to inquire into acts that  

had occurred during the 12th term of the Vidhan Sabha. It  

was also pointed out that the alleged misconduct on the  

part of the appellant and the petitioners had already been  

questioned  before  the  High  Court  of  Punjab  Haryana  by  

private parties whose lands had not been exempted from the  

Amritsar Improvement Scheme. Thus, it was argued that it  

was  improper  for  the  legislature  to  act  in  respect  of  

subject-matter  which  was  pending  adjudication,  thereby  

10

violating  the  norm  of  not  interfering  in  sub  judice  

matters. It was further argued that even though legislative  

privileges  are  exercised  to  ensure  the  dignity  and  

discipline of the House, the same cannot encroach into the  

judicial  domain  by  recording  a  finding  of  guilt  and  

recommending  punitive  action  in  respect  of  the  alleged  

misconduct. To support this objection, it was urged that  

the appellant and the petitioners had not been given a fair  

opportunity to contest or meet the allegations against them  

and  hence  the  proceedings  of  the  Special  Committee  were  

violative of the principles of natural justice.  

9. The respondents’ case is that the Punjab Vidhan Sabha  

had  legitimately  exercised  its  privileges  to  recommend  

punitive  action  in  the  present  case,  since  the  alleged  

misconduct on part of the appellant and the petitioners had  

brought disrepute to the House as a whole. It was reasoned  

that even though the power of expulsion for such misconduct  

has  not  been  enumerated  in  Articles  190  and  191  of  the  

Constitution  [which  prescribe  the  grounds  for  

disqualification of MLAs] the legislature had a broad power  

to take punitive action for the breach of its privileges  

which includes the power to punish for its own contempt. It  

was submitted that the appellant and the petitioners had  

11

committed a breach of privilege as well as contempt of the  

house since they had previously suppressed efforts of the  

legislature  to  inquire  into  the  alleged  misconduct  in  

relation  to  the  Amritsar  Improvement  Scheme.  Since  

legislative  privileges  have  not  been  codified  and  are  

shaped by precedents, the counsel for the respondents have  

cited  some  English  precedents  in  support  of  their  

contention that privileges can be exercised to punish mala  

fide acts which do not directly obstruct the proceedings of  

the House, but impede its dignity nevertheless.

10.  In  the  course  of  the  hearing  on  merits  before  this  

constitution bench, Shri K. Parasaran and Shri U.U. Lalit,  

Sr. Advs. appeared on behalf of the appellant. Thereafter,  

Shri  Ashok  Desai,  Sr.  Adv.  appeared  for  the  respondent  

whose submissions were supplemented by Shri Ravi Shankar  

Prasad, Sr. Adv., while Shri Gopal Subramanium, (Additional  

Solicitor General, now Solicitor General) represented the  

views of the Union government.  

11. In light of the facts of this case and the contentions  

outlined  above,  the  following  questions  arise  for  

consideration:

12

I. Whether  the  alleged  misconduct  on  part  of  the  

appellant  and  the  petitioners  warranted  the  

exercise  of  legislative  privileges  under  Article  

194(3) of the Constitution?  

II. Whether it was proper for the Punjab Vidhan Sabha  

to take up, as a matter of breach of privilege, an  

incident that occurred during its previous term?

III. Whether  the  impugned  acts  of  the  Punjab  Vidhan  

Sabha  violated the norms that should be respected  

in relation to sub judice matters?  

Re: Question I.

12.  Learned  counsel  appearing  for  the  respondents  have  

submitted that it was proper for the Punjab Vidhan Sabha to  

constitute  the  Special  Committee  and  pass  the  impugned  

resolution  which  recommended  the  expulsion  of  the  

appellant.  The  core  of  their  argument  is  that  the  

misconduct on part of the appellant had brought disrepute  

to  the  Vidhan  Sabha  and  it  was  justifiable  to  exercise  

legislative  privileges  for  mitigating  the  same.  The  

respondents have adopted a two-pronged line of reasoning.  

Firstly, they have asserted that the alleged misconduct on  

part of the appellant amounted to a breach of privilege as  

13

well  as  contempt  of  the  House.   Secondly,  they  have  

contended  that  since  the  ‘powers,  privileges  and  

immunities’  conferred  on  State  Legislatures  by  Article  

194(3) of the Constitution have not been codified, it would  

not be proper to place limitations on their exercise. The  

implicit  rationale  is  that  legislative  assemblies  should  

retain flexibility in the exercise of their privileges and  

the power to punish for contempt, so that they can tackle  

new  and  unforeseen  impediments  to  their  reputation  and  

functioning.  The  respondents’  submissions  have  dwelt  at  

length with the idea that the legislature’s power to punish  

for  its  own  contempt  cannot  be  trammeled  since  it  is  

different  from  the  remedial  objective  of  exercising  

privileges to maintain the dignity and discipline of the  

house.  The  respondents  have  extensively  relied  on  the  

constitution  bench  decision  in  Raja  Ram  Pal v.  Hon’ble  

Speaker, Lok Sabha, (2007) 3 SCC 184, where this Court had  

upheld the Lok Sabha’s power to expel its members in view  

of  misconduct  in  the  nature  of  accepting  bribes  to  ask  

specified questions on the floor of the House. However, the  

majority opinions of this Court had also clarified that the  

exercise of parliamentary privileges in such cases was open  

to judicial scrutiny.  

14

13. As outlined earlier, the appellant has questioned the  

impugned resolution since it recommends punitive action in  

respect of his misconduct which was allegedly committed in  

his capacity as the Chief Minister of the State of Punjab.  

It was submitted that the alleged irregularity in exempting  

a  plot  of  land  from  an  acquisition  scheme  was  entirely  

relatable to the discharge of executive functions. The act  

of exempting land did not in any way obstruct the functions  

of the Punjab Vidhan Sabha. It was urged that even though  

the exercise of legislative privileges and the concomitant  

power to punish for contempt have not been codified, they  

cannot be construed as unlimited powers since that could  

lead to their indiscriminate and disproportionate use. The  

counsel  appearing  for  the  appellant  and  the  petitioners  

have  also  submitted  that  when  the  Special  Committee  was  

constituted on 18-12-2007 it did not bear the nomenclature  

of  a  privileges  committee  and  at  the  time  it  was  not  

apparent  to  the  appellant  and  the  petitioners  that  they  

were facing such an action. However, the respondent submits  

that  the  incumbent  Chief  Ministers’  motion  brought  on  

18-12-2007  was  in  the  nature  of  a  privileges  motion.  

Irrespective of the contested facts, it will be proper for  

us to view this controversy from the prism of legislative  

privileges. Mr. Gopal Subramanium drew our attention to the  

15

two main considerations that should guide the adjudication  

of this case, namely those of ‘history’ and ‘necessity’.  

Considerations  of  history  require  us  to  examine  whether  

there  are  any  applicable  precedents  for  the  exercise  of  

legislative  privileges  in  similar  circumstances.  The  

consideration  of  necessity  entails  that  the  scope  of  

privileges should be identified on the basis of what is  

necessary to prevent or punish obstructions to legislative  

functioning.  

14.  Before  addressing  these  contentions,  we  can  take  a  

bird’s eye view of the law on legislative privileges. The  

State Legislatures are conferred with ‘powers, privileges  

and immunities’ by way of Article 194 of the Constitution  

which reads:  

“194.  Powers,  privileges,  etc.,  of  the  Houses  of  Legislatures  and  of  the  members  and  committees  thereof.- (1)  Subject  to  the  provisions  of  this  Constitution  and  to  the  rules  and  standing  orders  regulating  the  procedure  of  the  Legislature,  there  shall be freedom of speech in the Legislature of every  State.   

(2) No member of the Legislature of a State shall be  liable to any proceedings in any court in respect of  anything  said  or  any  vote  given  by  him  in  the  Legislature or any committee thereof, and no person  shall be so liable in respect of the publication by or  under the authority of a House of such a Legislature  of any report, paper, votes or proceedings.  

16

(3)  In  other  respects,  the  powers,  privileges  and  immunities of a House of the Legislature of a State,  and of the members and the committees of a House of  such Legislature, shall be such as may from time to  time be defined by the Legislature by law, and, until  so defined, shall be those of that House and of its  members and committees immediately before the coming  into force of Section 26 of the Constitution (Forty- fourth Amendment) Act, 1978.  

(4) The provisions of clauses (1), (2) and (3) shall  apply in relation to persons who by virtue of this  Constitution have the right to speak in, and otherwise  to take part in the proceedings of, a House of the  Legislature  of  a  State  or  any  committee  thereof  as  they apply in relation to members of that Legislature.”

15.  The  powers  and  privileges  conferred  on  the  State  

Legislatures  are  akin  to  those  conferred  on  the  Union  

Parliament by Article 105. Therefore, the principles and  

precedents  relatable  to  the  exercise  of  parliamentary  

privileges  are  relevant  for  deciding  this  case.  Both  

Articles 105 and 194 explicitly refer to the freedom of  

speech in the House and the freedom to publish proceedings  

without exposure to liability. However, other legislative  

privileges  have  not  been  enumerated.  Article  105(3)  and  

194(3)  are  openly  worded  and  prescribe  that  the  powers,  

privileges and immunities available to the legislature are  

those which were available at the time of the enactment of  

the  Constitution  (Forty-Fourth)  Amendment  Act,  1978.  

Subhash C. Kashyap has elaborated on the Indian position  

17

with  these words  [In  Parliamentary Procedure  – The  Law,  

Privileges,  Practice  and  Precedents,  Vol.  2 (New  Delhi,  

Universal Law Publishing Co. Pvt. Ltd., 2000) at p. 1555]:  

“As  regards  other  privileges,  Art.  105(3)  as  originally  enacted  provided  that  that  in  other  respects,  the  powers,  privileges  and  immunities  of  Parliament, its committees and members, until defined  by Parliament by law, shall be the same as those of  the House of Commons of the United Kingdom as on the  coming into the force of the Constitution on 26 Jan.  1950.  This  clause  was  however,  amended  in  1978,  to  provide that in respect of privileges other than those  specified in the Constitution, the powers, privileges  and  immunities  of  each  House  of  Parliament,  its  members and Committees shall be such as may from time  to time be defined by Parliament by law and until so  defined shall be those of that House, its members and  Committees immediately before coming into the force of  section 15 of the Constitution (44th Amendment), 1978  (w.e.f. 20 June 1978). This amendment has in fact made  only verbal changes by omitting all references to the  British House of Commons but the substance remains the  same. In other words, each House, its Committees and  members in actual practice, shall continue to enjoy  the  powers,  privileges  and  immunities  (other  than  those  specified  in  the  Constitution)  that  were  available to the British House of Commons as on 26  Jan. 1950.”   

16. Since the scope of ‘powers, privileges and immunities’  

available  under  Article  105(3)  and  194(3)  has  not  been  

codified by way of statute till date, it is open for us to  

consider  the  principles  and  precedents  relatable  to  the  

British House of Commons.  In  Raja Ram Pal’s case (supra.)  

C.K. Thakkar, J. in his concurring opinion had described  

Parliamentary Privileges as those fundamental rights which  

18

the House and its Members possess so as to enable them to  

carry out their functions effectively and efficiently. It  

was observed:

“519. In its creative sense, in England the House did  not  sit  down  to  build  its  edifice  of  the  powers,  privileges and immunities of Parliament. The evolution  of  the  English  parliamentary  institution  has  thus  historical development. It is the story of conflict  between  the  Crown’s  absolute  prerogatives  and  the  Common’s  insistence  for  powers,  privileges  and  immunities;  struggle  between  high  handed  actions  of  monarchs and people’s claim of democratic means and  methods. Parliamentary privileges are the rights which  the Houses of Parliament and Members posses so as to  enable them to carry out their functions effectively  and efficiently. Some of the parliamentary privileges  thus preceded Parliament itself. They are, therefore,  rightly described by Sir Erskine May as “fundamental  rights” of the Houses as against the prerogatives of  the Crown, the authority of ordinary courts of law and  the special rights of the House of Lords.”   

17. The evolution of legislative privileges can be traced  

back to medieval England when there was an ongoing tussle  

for power between the monarch and the Parliament. In most  

cases, privileges were exercised to protect the members of  

parliament from undue pressure or influence by the monarch  

among others. Conversely, with the gradual strengthening of  

parliament there were also some excesses in the name of  

legislative  privileges.  However,  the  ideas  governing  the  

relationship between the executive and the legislature have  

undergone a sea change since then. In modern parliamentary  

19

democracies, it is the legislature which consists of the  

people’s  representatives  who  are  expected  to  monitor  

executive functions. This is achieved by embodying the idea  

of ‘collective responsibility’ which entails that those who  

wield executive power are accountable to the legislature.  

However, legislative privileges serve a distinct purpose.  

They  are  exercised  to  safeguard  the  integrity  of  

legislative functions against obstructions which could be  

caused  by  members  of  the  House  as  well  as  non-members.  

Needless to say, it is conceivable that in some instances  

persons  holding  executive  office  could  potentially  cause  

obstructions to legislative functions. Hence, there is a  

need  to  stress  on  the  operative  principles  that  can  be  

relied  on  to  test  the  validity  of  the  exercise  of  

legislative privileges in the present case. In his widely  

cited work,         Sir Erskine May (1950) has answered the  

question  ‘What  constitutes  privilege?’  in  the  following  

manner [See: Erskine May, Parliamentary Practice, 16th edn.  

(London: Butterworths, 1957) in ‘Chapter III: General View  

of the Privilege of Parliament’ at p. 42] :

“Parliamentary privilege is the sum of the peculiar  rights  enjoyed  by  each  House  collectively  as  a  constituent part of the High Court of Parliament, and  by members of each House individually, without which  they  could  not  discharge  their  functions  and  which  exceed those possessed by other bodies or individuals.  

20

Thus privilege, though part of the law of the land is,  to a certain extent an exemption from the ordinary law.

The privileges of individual members of the House of  Lords  may  be  distinguished  from,  the  privileges  of  individual members of the House of Commons; both again  have common privileges as members of the Parliament;  and  the  Lords  have  special  privileges  as  peers,  distinct from those which they have as members of a  House co-ordinate with the House of Commons.” [Stubbs,  Constitutional History, iii (4th edn.) p.504]

The  particular  privileges  of  the  Commons  have  been  defined as:-  

“The sum of the fundamental rights of the House and of  its individual Members as against the prerogatives of  the Crown, the authority of the ordinary courts of law  and the special rights of the House of Lords.”   

Distinction between function and Privilege proper- It is more convenient to reserve the term ‘privilege’  to certain fundamental rights of each House which are  generally accepted as necessary for the exercise of  its constitutional functions.  

Ancillary nature of Privilege - A necessary means to  fulfillment of functions- The distinctive mark of a  privilege is its ancillary character. The privileges  of  Parliament  are  rights  which  are  “absolutely  necessary for the due execution of its powers.”    

In Halsbury’s Laws of England, 4th edn. (Reissue Vol. 34, at  

p. 553) it has been stated:  

“Claims to rights and privileges- The House of Lords  and the House of Commons claim for their Members, both  individually  and  collectively,  certain  rights  and  privileges which are necessary to each House, without  which  they  could  not  discharge  their  functions  and  which  exceed  those  possessed  by  other  bodies  and  individuals. In 1705, the House of Lords resolved that  neither House had power to create any new privilege  

21

and when this was communicated to the Commons, that  House agreed….”      

18.  It  would  be  instructive  to  refer  to  the  following  

extracts  from  a  lecture  on  Parliamentary  Privileges  by  

Viscount  Kilmer  –  The  Lord  High  Chancellor  of  Great  

Britain, [Delivered on May 4, 1959 at the University of  

London] :-  

“The  first  question  which  springs  to  the  mind  is,  ‘What precisely is Parliamentary Privilege?’- and its  question which is not altogether easy to answer.

A privilege is essentially a private advantage in law  enjoyed  by  a  person  or  a  class  of  persons  or  an  association which is not enjoyed by others. Looked at  from this aspect, privilege consists of that bundle of  advantages which members of both Houses enjoy or have  at one time enjoyed to a greater extent than their  fellow  citizens:  freedom  to  access  to  Westminster,  freedom from arrest or process, freedom from liability  in the courts for what they say or do in Parliament.  From another point of view, Parliamentary Privilege is  the special dignity and authority and enjoyed by each  House in its corporate capacity such as its right to  control its own proceedings and to punish both members  and strangers for contempt. I think these are really  two  sides  of  the  coin.  Any  Parliament,  it  is  to  function  properly,  must  have  some  privileges  which  will ensure freedom (to a greater or lesser degree)  from  outside  interference.  If  the  business  of  Parliament is of supreme importance, then nobody else  must  be  allowed  to  impede  it,  whether  by  throwing  fireworks from the gallery or bringing actions against  members for what they say in debate.  

A  close  parallel  is  provided  by  the  powers  of  the  superior courts to punish for contempt. If you try to  interfere with the administration of justice either by  throwing tomatoes at the judge or by intimidating a  witness you will be liable to be proceeded against for  

22

contempt. Once again, a body whose functions are of  paramount importance can be seen making certain that  outside interference is reduced to a minimum.”

19. In Australia, the scope of Parliamentary Privileges was  

enunciated in the  76th Report of the Senate Committee of  

Privileges, wherein it was observed:  

“The  word  “privilege”,  modern  usage,  connotes  a  special right accorded to a select group which sets  that group apart from all other persons. The Macquarie  Dictionary’s  primary  definition  of  privilege  is  as  follows: “A right of immunity enjoyed by a person or  persons  beyond  the  common  advantage  of  others.  The  privileges of Parliament are immunities conferred in  order  to  ensure  that  the  duties  of  members  as  representatives of their constituents may be carried  out without fear of intimidation or punishment, and  without  improper  impediment.  These  immunities,  established as part of the common law and recognized  in statutes such as the Bill of Rights of 1688, are  limited  in  number  and  effect.  They  relate  only  to  those matters which have common to be recognized as  crucial to the operation of a fearless Parliament on  behalf of the people. As pointed out in a submission  by the Department of the Senate to the Joint Select  Committee on Parliamentary Privilege, a privilege of  Parliament is more properly called an immunity from  the  operation  of  certain  laws,  which  are  otherwise  unduly restrictive of the proper performance of the  duties of members of Parliament.”  

20.  In  a  Canadian  case  reported  as  New  Brunswick  

Broadcasting Co. v.  Nova Scotia, (1993) 100 DLR (4th) 212,  

Lamer,  C.J.  had  cited  the  following  extract  from  an  

23

academic  commentary  [See:  Joseph  Maingot,  Parliamentary  

Privilege (Toronto: Butterworths, 1982) at p. 12]:

“Parliamentary  privilege  is  the  necessary  immunity  that the law provides for members of Parliament and  for members of the legislatures of each of the ten  provinces  and  two  territories,  in  order  for  these  legislators to do their legislative work. It is also  necessary immunity that the law provides for anyone  while taking part in a proceeding in Parliament or in  a legislature. Finally, it is the authority and power  of each House of Parliament and of each legislature to  enforce that immunity.

Parliamentary privilege and immunity with respect to  the  exercise  of  that  privilege  are  founded  upon  necessity. Parliamentary privilege and the breadth of  individual  privileges  encompassed  by  that  term  are  accorded to members of the House of Parliament and the  legislative  assemblies  because  they  are  judges  necessary  to  the  discharge  of  their  legislative  function.

The  contents  and  extent  of  parliamentary  privileges  have  evolved  with  reference  to  their  necessity.  In  Precedents  of  Proceedings  in  the  House  of  Commons,  Vol. I, 3rd Ed. (London: T Payne, 1796), John Hatsell  defined  at  p.  1  the  privileges  of  parliament  as  including those rights which are absolutely necessary  for the due execution of its power”. It is important  to note that, in this context, the justification of  necessity  is  applied  in  a  general  sense.  That  is,  general categories of privilege are deemed necessary  to  the  discharge  of  the  Assembly’s  function.  Each  specific  instance  of  the  exercise  of  a  general  privilege needs to be shown to be necessary.”

21.  In  the  past,  this  Court  has  adopted  a  similar  

conception of legislative privileges to interpret Article  

194(3). For example in Re Special Reference 1 of 1964, AIR  

24

1965  SC  745,  (also  known  as  the  U.P.  Assembly  case)  

Gajendragadkar C.J. had held, at Para. 33:

“… The Constitution-makers must have thought that the  legislatures  will  take  some  time  to  make  laws  in  respect  of  their  powers,  privileges  and  immunities.  During  the  interval,  it  was  clearly  necessary  to  confer on them the necessary powers, privileges and  immunities. There can be little doubt that the powers,  privileges  and  immunities  which  are  contemplated  by  clause  (3),  are  incidental  powers,  privileges  and  immunities  which  every  legislature  must  possess  in  order that it may be able to function effectively, and  that explains the purpose of the latter part of clause  (3).”

22. In State of Karnataka v. Union of India, (1977) 4 SCC  

608, a seven judge bench of this Court construed the powers  

contained  in  Article  194(3)  as  those  ‘necessary  for  the  

conduct of the business of the House’, at Para. 57:

“57. It is evident, from the Chapter in which Article  194 occurs as well as the heading and its marginal  note that the ‘powers’ meant to be indicated here are  not independent. They are powers which depend upon and  are necessary for the conduct of the business of each  House. They cannot also be expanded into those of the  House of Commons for all purposes… We need not travel  beyond  the  words  of  Article  194  itself,  read  with  other provisions of the Constitution, to clearly read  such a conclusion.”        

23. Y.K. Sabharwal, C.J. (majority opinion) in Para. 471 of  

Raja Ram Pal’s case (supra.) has quoted from Parliamentary  

25

Privilege-  First  Report  (Lord  Nicholas) which  describes  

Parliamentary Privilege as:  

“Parliamentary  privilege  consists  of  the  rights  and  immunities  which  the  two  Houses  of  Parliament  and  their Members and officers possess to enable them to  carry  out  their  parliamentary  functions  effectively.  Without this protection Members would be handicapped  in  performing  their  parliamentary  duties,  and  the  authority  of  Parliament  itself  in  confronting  the  executive and as a forum for expressing the anxieties  of citizens would be correspondingly diminished.”

In U.P. Assembly case (supra.), this Court had also drawn a  

distinction between the exercise of legislative privileges  

and that of ordinary legislative functions in the following  

manner:  

“There  is  a  distinction  between  privilege  and  function,  though  it  is  not  always  apparent.  On  the  whole, however, it is more convenient to reserve the  term ‘privilege’ to certain fundamental rights of each  House which are generally accepted as necessary for  the  exercise  of  its  constitutional  functions.  The  distinctive  mark  of  a  privilege  is  its  ancillary  character.  The  privileges  of  Parliament  are  rights  which are absolutely necessary for the due execution  of its powers. They are enjoyed by individual Members,  because the House cannot perform its functions without  unimpeded use of the services of its Members; and by  each House for the protection of its Members and the  vindication of its own authority and dignity.”  

In Hatsell’s  Collection  of  Cases  of  Privileges  of  

Parliament (1776),  Parliamentary  privileges  have  been  

26

defined as those rights which are ‘absolutely necessary for  

the due execution of its powers’. A similar definition has  

also been quoted in        Sir Erskine May’s Parliamentary  

Practice  (1950)  and  is  also  found  in  Ramanatha  Aiyar,  

Advanced Law Lexicon, 2nd edn. Vol. 3 (New Delhi: Wadhwa &  

Co. Nagpur, 1997) which defines privilege as:

“The distinctive mark of a Parliamentary Privilege is  its  ancillary  character.  They  are  rights  which  a  sovereign  legislature  must  possess  for  the  due  execution of its powers. Some of them are enjoyed by  individual members of the House.”   

24. The observations cited above make it amply clear that  

the exercise of legislative privileges is not an end in  

itself.  They  are  supposed  to  be  exercised  in  order  to  

ensure  that  legislative  functions  can  be  exercised  

effectively,  without  undue  obstructions.  These  functions  

include the right of members to speak and vote on the floor  

of  the  house  as  well  as  the  proceedings  of  various  

legislative committees. In this respect, privileges can be  

exercised  to  protect  persons  engaged  as  administrative  

employees  as  well.  The  important  consideration  for  

scrutinising  the  exercise  of  legislative  privileges  is  

whether the same was necessary to safeguard the integrity  

of legislative functions. We are also expected to look to  

27

precedents involving the British House of Commons. The most  

elaborate list of Parliamentary Privileges exercised by the  

British House of Commons has been compiled by Pritiosh Roy  

in his work Parliamentary Privilege in India which has been  

quoted in      Raja Ram Pal’s case (supra.) at Paragraphs  

94-97 and has been reproduced below:

1)  Privilege  of  freedom  of  speech,  comprising  the  right of exclusive control by the House over its own  proceedings.  It  is  a  composite  privilege  which  includes:

(i) the power to initiate and consider matters  of legislation or discussion in such order  as it pleases;

(ii) the privilege of freedom in debate proper-  absolute immunity of members for statements  made in debate, not actionable at law;

(iii) the power to discipline its own members; (iv) the power to regulate its own procedure- the  

right of the House to be the sole judge of  the lawfulness of its own proceedings;

(v) the right to exclude the jurisdiction of the  Courts;

(vi) the right to exclude strangers; (vii) the right to ensure privacy of debate;  (ix) the right to control or prohibit publication  

of its debates and proceedings; 2) Privilege of freedom from arrest or molestation  

the claim of the Commons to freedom of members  from arrest in civil action or suits during the  time of the Parliament and during the period when  a  member  journeys  to  or  returns  from  the  Parliament. This privilege includes: (i) exemption of a member from attending Court  

as a witness- service of a civil or criminal  process within the precincts of the House is  a breach of privilege.

(ii) a member cannot be admitted as bail; (iii) exemption of a member from jury service (iv) no  such  privilege  claimed  in  respect  of  

criminal offences or statutory detention;

28

(v) right of the House to be informed of arrest  of members on criminal charges;

(vi) extension  of  the  privilege  to  witnesses  summoned to attend before the House or its  committees,  and  to  officers  in  immediate  attendance upon the service of the House.

3) Privilege of freedom of access to the sovereign  through the Speaker.

4) Privilege of the House of receiving a favourable  construction of the proceedings of the House from  the sovereign.

5) Power  of  the  House  to  inflict  punishment  for  contempt on members or strangers- a power akin to  the powers possessed by the superior courts of  justice to punish for contempt. It includes: (i) the power to commit a person to prison, to  

the custody of its own officers or to one of  the  State  prisons,  [the  keystone  of  parliamentary  privilege]  the  commitment  being for any period not beyond the date of  the prorogation of the House;

(ii) the incompetence of the courts of justice to  admit  a  person  committed  by  the  House  to  bail;

(iii) when  the  person  is  committed  by  the  House upon a general or unspeaking warrant  which  does  not  state  the  particular  facts  constituting  the  contempt  the  incompetence  of the courts of justice to inquire into the  nature of contempt;

(iv) the power of the House to arrest an offender  through its own officers or through the aid  and power of the civil government;

(v) the power of the officers of the House to  break  open  outer  doors  to  effect  the  execution of the warrant of arrest;

(vi) the  power  of  the  House  to  administer  reprimand or admonition to an offender;

(vii) the power of the House to secure the  attendance,  whether  in  custody  or  not,  of  persons  whose  conduct  is  impugned  on  a  matter of privilege;

(viii) the power of the House to direct the  Attorney  General  to  prosecute  an  offender  where  the  breach  of  privilege  is  also  an  offence at law and the extent of the power  

29

of the House to inflict punishment is not  considered adequate to the offence;

(ix) the power of the House to punish a member by  (a)  suspension  from  the  service  of  the  House, or (b) expulsion, rendering his seat  vacant.

6) Privilege of the House to provide for its own due  constitution or composition. It includes: (i) the power of the House to order the issue of  

new writs to fill vacancies that arise in  the Commons in the course of a Parliament;

(ii) the  power  of  the  House  in  respect  of  the  trial  of  controverted  elections  of  members  of the Commons;

(iii) the power of the House to determine the  qualifications  of  its  members  to  sit  and  vote  in  the  House  in  cases  of  doubt-  it  includes the power of expulsion of a member.  A major portion of this ancient privilege of  the House of Commons has been eroded by the  statute.  

7) The power of the House to compel the attendance  of witnesses and the production of papers.”   

25.  However,  we  are  only  obliged  to  follow  British  

precedents to the extent that they are compatible with our  

constitutional scheme. This is because the legislatures in  

India do not have a wide power of self-composition in a  

manner akin to the British House of Commons. This position  

was clarified in                Raja Ram Pal’s case,  

(Supra.) at Para. 87:

“87. In U.P. Assembly Case (Special Reference No.1 of  1964) it was settled by this Court that a broad claim  that all the powers enjoyed by the House of Commons at  the commencement of the Constitution of India vest in  an  Indian  Legislature  cannot  be  accepted  in  its  

30

entirety because there are some powers which cannot  obviously  be  so  claimed.  In  this  context,  the  following observations appearing at SCR p.448 of the  judgment  should  suffice:  (AIR  1965  SC  745,  p.764,  para. 45)

“Take the privilege of freedom of access which is  exercised by the House of Commons as a body and  through  its  Speaker  ‘to  have  at  all  times  the  right to petition, counsel, or remonstrate with  their  Sovereign  through  their  chosen  representative and have a favourable construction  placed on his words was justly regarded by the  Commons  as  fundamental  privilege’  [Sir  Erskine  May’s  Parliamentary Practice, (16th Edn.), p.86].  It  is  hardly  necessary  to  point  out  that  the  House cannot claim this privilege. Similarly, the  privilege  to  pass  acts  of  attainder  and  impeachments cannot be claimed by the House. The  House  of  Commons  also  claims  the  privilege  in  regard to its own Constitution. This privilege is  expressed in three ways, first by the order of  new  writs  to  fill  vacancies  that  arise  in  the  Commons in the course of a Parliament; secondly,  by  the  trial  of  controverted  elections;  and  thirdly, by determining the qualifications of its  members  in  cases  of  doubt  (May’s Parliamentary  Practice,  p.175).  This  privilege  again,  admittedly,  cannot  be  claimed  by  the  House.  Therefore, it would not be correct to say that  all powers and privileges which were possessed by  the House of Commons at the relevant time can be  claimed by the House.”   

26.  Hence,  it  is  a  well-settled  position  that  all  the  

privileges  claimed  by  the  House  of  Commons  cannot  be  

automatically claimed by legislative bodies in India. With  

respect to the examples noted above, it is quite apparent  

that  vacancies  arising  in  the  legislative  bodies  (Union  

Parliament  and  State  Legislative  Assemblies)  are  duly  

31

filled up through the election procedures contemplated by  

the  Constitution  that  have  been  fleshed  out  in  detail  

through the Representation of People Act, 1951. Similarly  

disputes relating to elections are heard by the competent  

courts  and  disqualifications  are  effected  as  per  the  

grounds enumerated in the Constitution. While Articles 101  

and 102 enumerate the grounds for vacation of seats and the  

disqualification  of  Members  of  Parliament  (MPs)  

respectively, Article 190 and Article 191 deal with these  

aspects in relation to Members of State Legislatures. The  

manner of effecting disqualifications has also been laid  

down in relation to the various grounds for the same.  

27.  In  Raja  Ram  Pal’s   case  ,  (supra.)  the  majority  had  

decided that the parliamentary privileges available under  

Article  105(3)  could  be  legitimately  exercised  to  expel  

members  for  grounds  other  than  those  prescribed  for  

disqualification of members under Article 102. This Court  

had upheld the validity of the proceedings of a privileges  

committee  of  the  Lok  Sabha  which  had  inquired  into  the  

improper acts of some MPs and recommended their expulsion.  

In that case, the misconduct was in the nature of accepting  

bribes  in  return  for  asking  specified  questions  on  the  

floor  of  the  house.  One  of  the  expelled  MPs  had  been  

32

reported for accepting gratification in lieu of improper  

allocation of funds under the Member of Parliament Local  

Area Development Scheme (MPLADS). The acceptance of bribes  

had been recorded on camera by some journalists and later  

on the video-footage was treated as conclusive evidence of  

guilt by the privileges committee. In the present case, the  

respondents have cited this decision in support of their  

contention that it was proper for the Punjab Vidhan Sabha  

to  have  exercised  its’  power  to  punish  for  contempt  

[derived from Article 194(3) of the Constitution] in order  

to recommend the expulsion of the appellant. It was argued  

that the Vidhan Sabha was empowered to expel members on  

grounds other than those prescribed for disqualification of  

members  under  Article  191.  However,  an  important  

consideration in that case was that the misconduct which  

was  the  ground  for  the  MPs’  expulsion  had  a  direct  

connection with their legislative functions, namely those  

of asking questions at the behest of vested interests and  

the improper allocation of funds under the MPLADS scheme  

respectively. With respect to the allegations against the  

appellant in the present case, it is quite difficult to see  

how the improper exemption of a particular plot of land  

from  an  acquisition  scheme  caused  an  obstruction  to  the  

conduct of legislative business. If it is indeed felt that  

33

the allegations of misconduct on part of the former Chief  

Minister had brought disrepute to the entire House, then  

the proper course is to pursue criminal investigation and  

prosecution before the appropriate judicial forum.  

28.  At  this  juncture,  we  must  reiterate  the  principles  

which  guide  judicial  scrutiny  of  the  exercise  of  

legislative privileges (including the power to punish for  

contempt  of  the  House).  In  Raja  Ram  Pal’s  case,  Y.K.  

Sabharwal,  C.J.  had  framed  the  following  guidelines,  at  

Para. 431:  

. “431. Summary of the Principles relating to Parameters  of  Judicial  Review  in  relation  to  exercise  of  Parliamentary Provisions

We may summarize the principles that can be culled out  from the above discussion. They are:

a. Parliament is a co-ordinate organ and its views do  deserve deference even while its acts are amenable to  judicial scrutiny;  

b.  Constitutional  system  of  government  abhors  absolutism and it being the cardinal principle of our  Constitution that no one, howsoever lofty, can claim  to  be  the  sole  judge  of  the  power  given  under  the  Constitution, mere co-ordinate constitutional status,  or  even  the  status  of  an  exalted  constitutional  functionaries,  does  not  disentitle  this  Court  from  exercising  its  jurisdiction  of  judicial  review  of  action which part-take the character of judicial or  quasi-judicial decision;

c. The expediency and necessity of exercise of power  or  privilege  by  the  legislature  are  for  the  

34

determination of the legislative authority and not for  determination by the courts;

d. The judicial review of the manner of exercise of  power of contempt or privilege does not mean the said  jurisdiction is being usurped by the judicature;

e. Having regard to the importance of the functions  discharged by the legislature under the Constitution  and the majesty and grandeur of its task, there would  always  be  an  initial  presumption  that  the  powers,  privileges  etc  have  been  regularly  and  reasonably  exercised, not violating the law or the Constitutional  provisions, this presumption being a rebuttable one;

f.  The  fact  that  Parliament  is  an  august  body  of  co-ordinate constitutional position does not mean that  there  can  be  no  judicially  manageable  standards  to  review exercise of its power;

g. While the area of powers, privileges and immunities  of the legislature being exceptional and extraordinary  its acts, particularly relating to exercise thereof,  ought not to be tested on the traditional parameters  of judicial review in the same manner as an ordinary  administrative action would be tested, and the Court  would confine itself to the acknowledged parameters of  judicial review and within the judicially discoverable  and manageable standards, there is no foundation to  the plea that a legislative body cannot be attributed  jurisdictional error;

h. The Judicature is not prevented from scrutinizing  the  validity  of  the  action  of  the  legislature  trespassing on the fundamental rights conferred on the  citizens;

i.  The  broad  contention  that  the  exercise  of  privileges by legislatures cannot be decided against  the  touchstone  of  fundamental  rights  or  the  constitutional provisions is not correct;  

j. If a citizen, whether a non-member or a member of  the Legislature, complains that his fundamental rights  under Article 20 or 21 had been contravened, it is the  duty of this Court to examine the merits of the said  

35

contention,  especially  when  the  impugned  action  entails civil consequences;

k.  There  is  no  basis  to  claim  of  bar  of  exclusive  cognizance or absolute immunity to the Parliamentary  proceedings in Article 105(3) of the Constitution;  

l.  The  manner  of  enforcement  of  privilege  by  the  legislature  can  result  in  judicial  scrutiny,  though  subject  to  the  restrictions  contained  in  the  other  Constitutional provisions, for example Article 122 or  212;

m.  Articles  122(1)  and  Article  212(1)  displace  the  broad  doctrine  of  exclusive  cognizance  of  the  legislature  in  England  of  exclusive  cognizance  of  internal proceedings of the House rendering irrelevant  the  case  law  that  emanated  from  courts  in  that  jurisdiction; inasmuch as the same has no application  to the system of governance provided by Constitution  of India

n.  Article  122(1)  and  Article  212(1)  prohibit  the  validity of any proceedings in legislature from being  called in question in a court merely on the ground of  irregularity of procedure;

o. The truth or correctness of the material will not  be questioned by the court nor will it go into the  adequacy of the material or substitute its opinion for  that of the legislature;  

p. Ordinarily, the legislature, as a body, cannot be  accused of having acted for an extraneous purpose or  being actuated by caprice or mala fide intention, and  the court will not lightly presume abuse or misuse,  giving allowance for the fact that the legislature is  the  best  judge  of  such  matters,  but  if  in  a  given  case,  the  allegations  to  such  effect  are  made,  the  Court may examine the validity of the said contention,  the onus on the person alleging being extremely heavy

q. The rules which the legislature has to make for  regulating  its  procedure  and  the  conduct  of  its  business have to be subject to the provisions of the  Constitution;

36

r.  Mere  availability  of  the  Rules  of  Procedure  and  Conduct  of  Business,  as  made  by  the  legislature  in  exercise of enabling powers under the Constitution, is  never a guarantee that they have been duly followed;

s. The proceedings which may be tainted on account of  substantive or gross illegality or unconstitutionality  are not protected from judicial scrutiny;

t. Even if some of the material on which the action is  taken is found to be irrelevant, the court would still  not  interfere  so  long  as  there  is  some  relevant  material sustaining the action;

u.  An  ouster  clause  attaching  finality  to  a  determination does ordinarily oust the power of the  court to review the decision but not on grounds of  lack of jurisdiction or it being a nullity for some  reason  such  as  gross  illegality,  irrationality,  violation of constitutional mandate, mala fides, non- compliance  with  rules  of  natural  justice  and  perversity;”

29. Hence, we are empowered to scrutinize the exercise of  

legislative privileges which admittedly include the power  

of a legislative chamber to punish for contempt of itself.  

Articles 122(1) and 212(1) make it amply clear that Courts  

cannot inquire into matters related to irregularities in  

observance of procedures before the legislature. However,  

we can examine whether proceedings conducted under Article  

105(3) or 194(3) are ‘tainted on account of substantive or  

gross illegality or unconstitutionality’. The facts before  

us do not merely touch on a procedural irregularity. The  

appellant has contended that the Punjab Vidhan Sabha has  

37

committed a substantive jurisdictional error by exercising  

powers under Article 194(3) to inquire into the appellant’s  

actions  which  were  taken  in  his  executive  capacity.  As  

explained earlier, the relevant fact here is not only that  

the allegations of wrongdoing pertain to an executive act,  

but  the  fact  that  there  is  no  conceivable  obstruction  

caused to the conduct of routine legislative business.  

30.  Before  commenting  further  on  the  merits  of  the  

contentions,  we  must  draw  attention  to  the  specific  

guidelines in  Raja Ram Pal’s case (supra.) that advocate  

due  deference  to  the  actions  of  the  legislature  in  the  

ordinary  course  of  events.  We  do  recognize  that  the  

threshold for exercising judicial review in a case such as  

the present one is indeed very high and we must begin with  

a presumption that the legislatures’ actions were valid.  

However, the counsel for the appellant and the petitioners  

have produced sufficient materials to demonstrate that it  

was  not  necessary  for  the  Punjab  Vidhan  Sabha  to  have  

exercised its powers under Article 194(3) to recommend and  

then notify the expulsion of the appellant. We fail to see  

how the alleged misconduct on part of the appellant had the  

effect of obstructing the ordinary legislative functions of  

the Vidhan Sabha. In its role as a deliberative body which  

38

is expected to monitor executive functions in line with the  

idea  of  ‘collective  responsibility’,  the  Punjab  Vidhan  

Sabha  was  of  course  free  to  inquire  into  the  alleged  

misconduct and examine its implications. However, the act  

of  recommending  the  appellant’s  expulsion  through  the  

impugned  resolution  cannot  be  justified  as  a  proper  

exercise of ‘powers, privileges and immunities’ conferred  

by Article 194(3).        

31. In their submissions, the counsel for the respondents  

have cited some English precedents in an attempt to draw an  

analogy with the facts in the present case. The intended  

purpose  of  doing  so  is  to  demonstrate  the  exercise  of  

legislative privileges in the past to punish conduct that  

took place outside the ‘four walls of the house’ and yet  

diminished  the  reputation  of  the  legislature.  We  have  

already  explained  that  all  British  precedents  cannot  be  

automatically followed in the Indian context. One reason  

for this is that Indian legislatures are controlled by a  

written constitution and hence they do not have an absolute  

power  of  self-composition,  unlike  the  British  House  of  

Commons which is controlled by an unwritten constitution.  

Another  reason  is  that  some  of  the  English  precedents  

involving the exercise of privileges were clear instances  

39

of overbreadth. Far from being good law as contended by the  

respondents, these old English cases have been subsequently  

described by authors as examples of arbitrary exercise of  

privileges. In fact Para. 217 of                Raja Ram  

Pal’s case (supra.) conveys this position in the following  

words:

“217.  Constitutional History of England by Professor  F.W. Maitland (1st Edn. 1908, reprinted 1941), based on  his lectures, is divided chronologically. In the last  and  most  contemporary  ‘Period  V’  titled  “Sketch  of  Public  Law  at  the  Present  Day  (1887-88)”,  he  deals  with the House of Commons in Part III. It has been  opined by him that the earlier exercise of privileges  from  the  fourteenth  to  the  eighteenth  century  have  fallen  into  utter  desuetude  an  may  furnish  only  an  example  of  an  arbitrary  and  sometimes  oppressive  exercise  of  uncanalised  power  by  the  House.  After  mentioning the membership and the qualification of the  voters as also principles and the mode of election and  dealing  with  the  power  of  the  voters  as  also  principles and the mode of election and dealing with  the  power  of  determining  disputed  elections  by  the  House of Commons, one of the facets of the privilege  of the House of Commons to provide for and regulate  its own constitution, in the context of the vacation  of seats in the House by incurring disqualifications,  he refers in sub-para (6) to the power of expulsion.  His words may be extracted:

“The House has an undoubted power of expelling a  Member, and the law does not attempt to define  the cases in which it may be used. If the House  voted the expulsion of A.B. on the ground that he  was ugly, no court could give A.B. any relief.  Probably it would not be exercised now- a days,  unless the Member was charged with crime or with  some  very  gross  misbehaviour  falling  short  of  crime, and in general the House would wait until  

40

he had been tried and convicted by a court of  law. In 1856, a Member who had been indicted for  fraud and who had fled from the accusation was  expelled.”

32. The respondents have quoted Para. 215 of Raja Ram Pal’s  

case  (supra.) to contend that even in cases of criminal  

offences  such  as  forgery,  perjury,  breach  of  trust,  

corruption in public offices etc. wherein there may be no  

direct  obstruction  to  legislative  business,  members  have  

been expelled from the British House of Commons through the  

exercise of Parliamentary privileges. In fact, Para. 215  

paraphrases a passage from Sir Erskine May’s prominent work  

which  touches  on  the  power  of  the  House  to  expel  its’  

members. However, the exact passage dealing with the power  

of expulsion, [See Erskine May, Parliamentary Practice, 15th  

Edn. (1950)] states that at the time of writing (i.e. 1950)  

the  power  of  expulsion  was  reserved  only  for  cases  

involving conviction for grave misdemeanors. A reading of  

the original passage makes it amply clear that Sir Erskine  

May  was  referring  to  grounds  on  which  members  had  been  

expelled in the past. However, citing the same does not  

amount to their endorsement and the respondent’s reliance  

on  the  said  passage  is  quite  misplaced.  The  original  

passage is reproduced below:

41

EXPULSION BY THE COMMONS

“The purpose of expulsion is not so much disciplinary as  remedial, not so much to punish Members as to rid the House  of persons who are unfit for membership. It may justly be  regarded as an example of the House’s power to regulate its  own constitution. But it is more convenient to treat it  among  the  methods  of  punishment  at  the  disposal  of  the  House.  At  the  present  time  expulsion  is  practically  reserved for the punishment of persons convicted of grave  misdemeanors,  whose  seats  are  not,  as  in  the  case  of  Members  convicted  of  treason  or  felony,  automatically  vacated.   

Members have been expelled as being in open rebellion; as  having been guilty of forgery; of perjury; of frauds and  breaches of trust; of misappropriation of public money; of  conspiracy  to  defraud;  of  fraudulent  conversion  of  property; of corruption in the administration of justice,  or  in public offices, or in the execution of their Members  of the House; of conduct unbecoming the character of an  officer  and  a  gentlemen;  and  contempt,  libels  and  other  offences committed against the House itself.”    

33. At this juncture, we must clarify that if a sitting  

member  of  a  legislature  in  India  is  found  guilty  of  

committing a statutory offence, then disqualification can  

be  a  consequence  as  per  the  scheme  contemplated  in  the  

Representation of People Act, 1951. The respondents have  

also referred to the Table produced in Para. 582 of  Raja  

Ram  Pal’s   case   (supra.)  which  surveys  the  exercise  of  

privileges by the British House of Commons between 1667 and  

1954.  They  have  drawn  our  attention  to  some  of  the  

instances to contend that members were indeed expelled for  

42

acts that took place outside the ‘four walls of the house’  

and had no direct bearing on legislative functions. However  

as  we  have  explained  above,  it  is  not  appropriate  to  

mechanically rely on all of these precedents. If we must  

look to English precedents for guidance, we find a far more  

appropriate  sample  set  in  the  table  of  cases  from  the  

period 1945-1965 which forms an Appendix to the  Report of  

the Select Committee on Parliamentary Privilege (1967)  in  

the  United  Kingdom.  The  same  has  been  reproduced  below:  

RECENT CASES OF PRIVILEGE (1945-65)       DAT E

Subject of Complaint

Report and Recommendation of  the  Committee  of  Privileges

Action  by  the  House  

March  1945 H.C.  63 (1944-45)

Offer  of  a  bribe (Henderson’s  Case)

Offer  was  a  conditional  donation-  no  question  of  bribery arose and  no  breach  of  privilege   

Tacit  acceptance

October  1945 H.C.  31 (1945-46)  

Service  of  summons  within  the  precincts  on  a  sitting  day  (Verney’s  Case)

Breach  of  privilege  but  particular  circumstances did  not  require  further action  

Tacit  Acceptance

July 1946 H.C. 181 (1945-46)

Poster  designed  to  intimidate  Members  (Mrs.  Tennant’s Case)

Breach  of  privilege but too  petty in scale to  justify  further  action by House

Tacit  Acceptance

December  1946 H.C. 36 (1946-  47)

Assault  on  Member  (Piratin’s  Case)

Member  and  assailant  both  guilty  of  contempt

Resolution  :Member guilty  of  gross  contempt,  assailant  

43

guilty  of  contempt  (10  February 1947)  

March  1947 H.C. 118 (1946-47)

Improper  pressure  on  Member by Trade  Union (W.J.Brown’s  Case)

Nothing  improper  and no breach of  privilege

Resolution:  Inconsistent  with  duty  of  Member  to  enter  contractual  agreements  limiting  his  independence  in Parliament

April  1947  H.C. 138 (1946-47)

Newspaper  suggested  Members  accepted  payments  for  information  (Gary  Allighan’s  Case)  

1)Grave  contempt  by  newspaper  and  by Mr. Allighan 2)  Disclosure  of  information  from  party  meetings  for  payment  constitutes  breach  of  privilege  

(1)  Member  expelled;  Editor  summoned  to  Bar  and  reprimanded  (30  October,  1947)  2)  This  view  not  accepted  by House

July 1947 H.C. 137 (1946-  47)

Refusal  by  witnesses  before  Committee  of  Privileges  to  answer  certain  questions  (Case  of  Schofield  and Dobson)

House  to  take  such steps as may  seem necessary

Witnesses  ordered  to  attend  at  Bar  of  House  and  examined  by  Mr. Speaker Resolution:  Refusal  to  answer  constitutes  contempt  (12  August 1947)

August  1947  H.C. 142  (1946-  47)

Personal  statement  by  Member  about  acceptance  of  payments  by  newspaper  referred  to  Committee (Walkden’s  Case)

Member  guilty  of  privilege

Member ordered  to  be  reprimanded  for  dishonourable  conduct (House  did  not  confirm  the  view  of  the  Committee  on  

44

breach  of  privilege)  30  October and 10  December 1947)  

March  1948 H.C. 112 (1947-48)

Broadcast  reflecting  on  allegiance  of  Members  (Colm  Brogan’s Case)  

Inconsistent with  dignity  of  House  to  examine  further

Tacit  acceptance

July 1949 H.C. 261 (1948-49)

Misrepresentati on by newspaper  of  Member’s  speech (Case of  “Daily Worker”)

Technical  breach  of  privilege  but  no  action  called  for

Tacit  acceptance

March  1951 H.C. 149 (1950-51)

Broadcast  commenting  on  future  decision  by  House  on  privilege  matter  (B.B.C.  case)

No contempt Tacit  acceptance

March  1951 H.C. 227 (1950-51)

Letter  reflecting  on  integrity  of  Members  (Clan  Briton case)

Letters  did  not  reflect  on  Members  in  their  capacity  as  such  and  therefore  no  breach  of  privilege  

Tacit  acceptance

June 1951 H.C. 227 (1950-51)

Disclosure  by  newspaper  of  evidence  given  to  Estimates  Committee  (Case  of  Daily  Telegraph)

An  inquiry  into  the facts did not  reveal  any  intention  any  intention  to  infringe  privilege

Tacit  Acceptance

June 1951 H.C. 235 (1950-51)  

Speech  by  Lady  Mellor  imputed  partially  to  the  Deputy  Speaker (Lady  Mellor’s  Case)  

Words constituted  a  breach  of  privilege  but  circumstances did  not  require  further action by  House

Tacit  Acceptance

July 1951 H.C. 244 (1950-51)

Obstruction  by  police  of  Member  driving  to attend House  and  subsequent  

No  breach  of  privilege

Tacit  Acceptance

45

summons (John  Lewis’s  Case)

April  1953 H.C. 171 (1952-53)

Lady  Member’s  disrespect  in  “Sunday  Express”  article  describing  other  Members  (Mrs.  Ford’s  case)  

Unauthorized  reports  of  proceedings  in  House  amount  to  breach  of  privilege;  but  normally  House  waives  its  privileges.  Apologies  having  been  made,  no  further  action  needed  

Tacit  acceptance

December 1953  H.C. 31 (1953-54)

Reflection  on  Members  in  newspaper  article  imputing  motives  in  voting (Case of  “Daily Worker”)

Breach  of  privilege;  but  matter not worthy  of  occupying  further  time  of  the House  

Tacit  Acceptance

March  1955  H.C. 112 (1954-55)

Deputy  Assistant  Chaplain  General  threatens  a  subordinate  with a view to  influencing  proceedings  in  Parliament

No  precedent  for  regarding  it  as  breach  of  privilege;  but  matter  for  responsible  Minister   

Tacit  Acceptance

November  1956  H.C. 27 (1956-57)

Molestation  of  Member  by  telephone  (Editor  of  Sunday  Graphic’s  case )

Serious breach of  privilege; but in  view  of  humble  apology,  no  further  action  needed   

Tacit  acceptance

November 1956 H.C. 38 (1956-57)

Imputation  in  newspaper  article  that  Members  were  receiving  

Editor of “Sunday  Express”  guilty  of  serious  contempt  and  should  be  

Editor ordered  to  attend  at  Bar  and  apology  made  at  Bar  of  

46

“prodigious”  supplementary  petrol  allowances (Case  of  “Sunday  Express”)  

reprimanded House Resolution: He  was  guilty  of  serious  contempt  (24  January 1957)

December  1956  H.C. 39 (1956-57)

Offensive  newspaper  cartoon  reflecting  on  conduct  of  Members  (Case  of  “Evening  News”)

Cartoon  constituted  reflection  on  Members  and  contempt,  but  in  view  of  withdrawal  of  cartoon  from  later  editions  and  publication  of  unqualified  apology,  no  further  action  needed    

Tacit  Acceptance

January  1957 H.C. 74 (1956-  57)

Broadcast  and  newspaper  comment  on  matter  under  consideration  by Committee of  Privileges (Case of B.B.C.  and  “Romford  Recorder”  newspaper )

No  contempt  by  B.B.C.  or  by  newspaper

Tacit  acceptance

April  1957 H.C. 305 (1956-57)

Action  by  London  Electricity  Board  in  threatening  to  institute  proceedings  for  libel  respecting  statement  in  letter  by  Member  to  Minister  (Strauss Case)  

Breach  of  privilege

Resolution:  London  Electricity  Board  had  not  commented  any  breach  of  privilege  Division: Ayes  219;  Noes  196  (8 July 1958)

July 1960 Letter Breach  of Tacit  

47

H.C. 284 (1959-60)

containing  threat  to  Member  (Colin  Jordan’s case)

privilege; but no  further  action  needed as offence  had  not  been  repeated  

acceptance

March  1964 H.C. 247 (1963-64)

Reflection  on  allegiance  of  Members  made  outside  House  (Quintin  Hogg’s  Case)

No  breach  of  privilege  and  no  contempt  of  the  House; no further  action needed

Tacit  acceptance

February  1965 H.C. 129 1964-65

Imputation  against  Member’s  drunkenness  (Duffy’s case)

Gross contempt of  House  and  breach  of privilege; but  no further action  needed  following  letter  from  Member  withdrawing  remarks  

Tacit  acceptance

May 1965  H.C. 228 (1964-65)

Letter  threatening  Members  of  House  (case  of  anonymous  threatening  letters)

Breach  of  privilege  and  improper  attempt  to  influence  Members; in their  parliamentary  conduct;  but  dignity  of  House  best  maintained  by  taking  no  further action  

Tacit  acceptance

July 1965 H.C. 269 (1964-65)

Speech  by  Chancellor  of  the  Exchequer  outside  House  reflecting  on  Members  (Callaghan’s  case)

No  contempt  and  no further action  needed

Tacit  acceptance

34.  A  perusal  of  the  above-mentioned  table  reveals  the  

following:

48

(i) The only cases in this Table where the House was of the  

view that a breach of privileges had taken place were those  

in which the questionable conduct bore a direct nexus to  

the  functioning  or  the  proceedings  of  the  House  or  the  

functioning  of  a  member  within  the  House.  Even  in  such  

cases no serious action followed, much less an action of  

expulsion. These were:

• Service  of  summons  in  the  precincts  of  the  House  

without permission of the House (Verney’s case 1945-46)

• Misrepresentation by a newspaper of the speech of a  

Member within the House (Walkden’s Case 1946-47)    

• Speech by a Member imputing impartiality to the Deputy  

Speaker of the House

• Unauthorized  reports  of  proceedings  of  the  House  

(Mrs. Ford’s case 1952-53)

• Intimidation/molestation/threat  of  a  Member  in  the  

House  (Mrs.  Tennant’s  case  1945-46)  and  (Editor  of  

“Sunday Graphic’s” case 1956-57) and (Colin Jordan’s  

case 1959-60)

(ii)    The instances where the House was of the view that  

contempt of the House had taken place were those where  

there were direct obstructions and imputations against  

members, namely when:

49

• There was an assault on the Member in the House  

(Piratin’s case 1946-47)

• There  was  a  refusal  by  a  witness  to  answer  

questions  before  a  Privileges  Committee  (Case  of  

Schofield and Dobson 1946-47)

• There was an imputation by a newspaper that members  

were  receiving  unusually  large  petrol  allowances  

(case of “Sunday Express” 1956-57)   

• There  was  an  imputation  regarding  a  Member’s  

drunkenness (Duffy’s case 1964-65)  

(iii) In the one instance where the Privileges Committee  

did  indeed  recommend  the  expulsion  of  a  member  (Gary  

Allighan,  1947)  the  House  ultimately  did  not  accept  the  

same recommendation.  

35. It would be safe to say that a breach of privilege by a  

member of the legislature can only be established when a  

member’s  act  is  directly  connected  with  or  bears  a  

proximity to his duties, role or functions as a legislator.  

This test of proximity should be the rule of thumb, while  

of course accounting for exceptional circumstances where a  

person who is both a legislator and a holder of executive  

office  may  commit  a  breach  of  privilege.  It  is  our  

50

considered view that such a breach has not occurred in the  

present case.  

36. Even if we turn to parliamentary practice in India, it  

is quite apparent that the expulsion of members should only  

be sustained if their actions have caused obstructions to  

legislative functions or are likely to cause the same. The  

following examples have been discussed in  Raja Ram Pal’s  

case (supra.) at Paragraphs 301-317:  

• One can refer to the chain of events leading up to the  

resignation of Mr. H.G. Mudgal from the Lok Sabha on  

24-9-1951.  Mr.  H.G.  Mudgal  was  charged  with  having  

engaged himself in ‘certain dealings with the Bombay  

Bullion Association which included canvassing support  

and making propaganda in Parliament on problems like  

option  business,  stamp  duty  etc.  and  receipt  of  

financial  or  business  advantages  from  the  Bombay  

Bullion Association’ in the discharge of his duty in  

Parliament.  Subsequently,  a  Committee  appointed  by  

Parliament  to  inquire  into  the  said  member’s  

activities found his conduct to be derogatory to the  

dignity  of  the  House  and  inconsistent  with  the  

standard which Parliament was entitled to expect from  

its members. In pursuance of these findings, a motion  

51

for  expulsion  was  brought  before  the  House  which  

prompted the member to submit his resignation. [See:  

Kaul  and  Shakdher,  Practice  and  Procedure  of  

Parliament, 5th edn. (New Delhi: Metropolitan Book Co.  

Pvt. Ltd. 2001) at p. 262] It is pertinent to note  

that the misconduct which triggered a recommendation  

for  expulsion  had  a  clear  nexus  with  legislative  

functions.  

• Another relevant instance is that of the expulsion of  

Mr.  Subramanium  Swamy  from  the  Rajya  Sabha.  On  

2-9-1976 the Rajya Sabha adopted a motion appointing a  

committee to investigate the conduct and activities of  

Mr. Swamy, within and outside the country, including  

alleged anti-India propaganda calculated to bring into  

disrepute Parliament and other democratic institutions  

of  the  country  and  generally  behaving  in  a  manner  

unworthy  of  a  member.  The  Committee  presented  its  

report on 12-11-1976 recommending expulsion and on 15-

11-1976 the Rajya Sabha adopted a motion to expel the  

said member. [See: Subhash C. Kashyap,  Parliamentary  

Procedure- Law Privileges, Practice & Precedents Vol.  

2, (New Delhi: Universal Law Publishing Co. Pvt. Ltd.,  

2000) at p. 1657]  

52

• We  can  also  invite  attention  to  the  instance  when  

Mrs. Indira Gandhi and two others were expelled from  

the  Lok  Sabha  by  way  of  a  motion  adopted  on  

19-12-1978. The background was that on 18-11-1977, a  

motion  was  adopted  by  the  House  referring  to  the  

Committee  of  privileges  a  question  of  breach  of  

privilege  and  contempt  of  the  House  against  Mrs.  

Gandhi and others regarding obstruction, intimidation,  

harassment  and  institution  of  false  cases  by  Mrs.  

Gandhi  and  others  against  certain  officials.  The  

Committee of Privileges recorded a finding that Mrs.  

Indira Gandhi had committed a breach of privilege and  

contempt  of  the  House  by  causing  obstruction,  

intimidation,  harassment  and  institution  of  false  

cases  against  the  officers  concerned  who  were  

collecting information for the purpose of an answer to  

a certain question that had been asked in the House.  

The nature of punitive action to follow was left to  

the wisdom of the House. On              19-12-1978,  

the  House  adopted  a  motion  which  recommended  Mrs.  

Gandhi’s expulsion among other things. However, this  

expulsion was undone during the term of the Seventh  

Lok Sabha, wherein there was a substantive debate on  

whether the House had the power to expel its members  

53

in the exercise of privileges. At that point of time,  

the majority of the House had resolved that there was  

no power of expulsion in such circumstances. However,  

the  position  has  since  been  clarified  in  

Raja Ram Pal’s case (supra.) which has recognised the  

power of legislatures to expel their members, subject  

to the judicially prescribed guidelines. Nevertheless,  

what  is  relevant  for  the  present  case  is  that  the  

initial recommendation for expulsion was triggered by  

conduct that bore a direct causal link to legislative  

functions.

• Another comparable instance was noted by S.C. Agarwal,  

J. in his dissenting opinion in P.V. Narasimha Rao v.  

State, (1998) 4 SCC 626, wherein it was observed:

“25. It does not, however, constitute breach or  contempt of the House if the offering of payment  of bribe is related to the business other than  that  of  the  House.  In  1974,  the  Lok  Sabha  considered  the  matter  relating  to  offer  or  payment  of  bribe  in  the  import  licences  case  wherein it was alleged that a Member of Lok Sabha  had  taken  bribe  and  forged  signatures  of  the  Members  for  furthering  the  cause  of  certain  applicants.  The  question  of  privilege  was  disallowed  since  it  was  considered  that  the  conduct of the Member, although improper, was not  related to the business of the House. But at the  same time it was held that as the allegation of  bribery  and  forgery  was  very  serious  and  unbecoming of a Member of Parliament, he could be  held guilty of lowering the dignity of the House.  (See: Kaul and Shakdher at pp. 254, 255).”  

54

37.  As  outlined  earlier,  the  respondents  have  also  

contended that the power of a legislature to punish for its  

own contempt should not be seen as incidental to its’ power  

of                         self-composition and that it  

should  have  a  wider  import  than  the  remedial  power  of  

preventing obstructions to legislative functions. It will  

be  useful  to  refer  to  the  following  extract  from  the  

respondents’ written submissions:  

“…  Even  if  the  House  of  Legislature  has  limited  powers, such power is not only restricted to ex facie  contempts, but even acts committed outside the House.  It  is  open  to  the  Assembly  to  use  its  power  for  protective purposes, and the acts that it can act upon  are not only those that are committed in the House,  but  upon  anything  that  lowers  the  dignity  of  the  House.  Thus,  the  petitioners’  submission  that  the  House only has the power to remove obstructions during  its proceedings cannot be accepted.”

In  pursuance  of  this  line  of  reasoning,  the  respondents  

have argued that the appellant’s actions have lowered the  

dignity  of  the  house  and  the  same  amounts  to  conduct  

unbecoming  of  a  member  of  the  House,  even  though  such  

conduct  had  no  bearing  on  legislative  functions.  It  was  

urged that the underlying motive behind the expulsion was  

not merely that of punishment but also to remove a member  

55

who  was  seen  as  unfit  to  continue  as  a  member  of  the  

legislature.  

38.  We  are  unable  to  agree  with  this  line  of  reasoning  

presented on behalf of the respondents. Expressions such as  

‘lowering the dignity of the house’, ‘conduct unbecoming of  

a  member  of  the  House’  and  ‘unfitness  of  a  member’  are  

openly-worded  and  abstract  grounds  which  if  recognised,  

will trigger the indiscriminate and disproportionate use of  

legislative  privileges  by  incumbent  majorities  to  target  

their  political  opponents  as  well  as  dissidents.  The  

various  grounds  for  disqualification  of  members  of  

legislative  assemblies  (MLAs)  have  been  enumerated  in  

Articles  190  and  191  of  the  Constitution.  For  most  

circumstances, there is an elaborate machinery in place to  

decide  questions  pertaining  to  the  disqualification  of  

members and the vacancy of seats. However, it is for the  

purpose  of  tackling  unforeseen  and  novel  impediments  to  

legislative  functioning  that  the  ‘powers,  privileges  and  

immunities’  contemplated  by  Article  194(3)  of  the  

Constitution have not been codified. In Raja Ram Pal’s case  

(supra.) the majority decision of this Court did recognise  

that  the  legislature’s  power  to  punish  for  its  contempt  

could be exercised to expel legislators for grounds other  

56

than those prescribed in the Constitution, but it was not  

the  intention  of  this  Court  to  prescribe  an  untrammeled  

power.  By  laying  down  a  clear  set  of  guidelines  for  

judicial  review  over  the  exercise  of  parliamentary  

privileges, this Court had made its intentions quite clear.  

Accordingly,  we  are  of  the  view  that  the  power  of  a  

legislative chamber to punish for its own contempt should  

broadly  coincide  with  the  legislature’s  interest  in  

protecting  the  integrity  of  its  functions.  There  can  of  

course be some exceptional circumstances where acts that  

take place outside the ‘four walls of the house’ could have  

the  effect  of  distorting,  obstructing  or  diluting  the  

integrity of legislative functions. An obvious example is  

that  of  legislators  accepting  bribes  in  lieu  of  asking  

questions or voting on the floor of the House. However,  

with respect to the facts before us, the respondents have  

failed to demonstrate how the alleged misconduct on part of  

the appellant and the petitioners could have a comparable  

effect.  Using  the  route  of  legislative  privileges  to  

recommend the appellant’s expulsion in the present case is  

beyond the legitimate exercise of the privilege power of  

the House.  

Re: Question II.     

57

39. The next aspect that merits our attention is whether it  

was  proper  for  the  Punjab  Vidhan  Sabha  to  consider  the  

alleged misconduct as a breach of privilege in spite of the  

fact that it took place during the Vidhan Sabha’s previous  

term. The allegedly improper exemption of a plot of land  

(measuring  32.10  Acres)  from  the  Amritsar  Improvement  

Scheme had been notified on 13-1-2006, during the 12th term  

of  the  Punjab  Vidhan  Sabha.  On  22-02-2006,  a  question  

pertaining to this allegedly improper exemption was raised  

in the House and the same was discussed on 22-02-2006, 28-

02-2006 and             1-3-2006 respectively. At this  

juncture  it  must  be  clarified  that  there  were  separate  

allegations in the respondent’s submissions which suggest  

that the appellant had played a part in suppressing some  

materials when questions had been asked about the allegedly  

improper  exemption.  However,  the  said  suppression  of  

materials had been inquired into by another Committee and  

there were no findings against the appellant.  

40.  As  mentioned  earlier,  the  House  was  subsequently  

dissolved  and  a  new  regime  was  voted  to  power  in  the  

elections held in February 2007. It was during the present  

term of the House (i.e. the 13th term of the Punjab Vidhan  

Sabha) that the allegedly improper exemption was made the  

58

subject-matter of an inquiry by a Special Committee which  

was constituted in pursuance of a resolution passed by the  

House on                     18-12-2007. The Special  

Committee presented its report on the floor of the House on  

3-9-2008, which in turn became the basis of the impugned  

resolution of the Punjab Vidhan Sabha that was passed on  

10-9-2008.  Before addressing the contentious issue, it is  

necessary to understand the implications of the dissolution  

of a legislative chamber, since the Punjab Vidhan Sabha had  

been dissolved and                re-constituted during the  

period  between  the  operative  dates,  i.e.  the  date  of  

notification of the allegedly improper exemption of land  

from the Amritsar Improvement Scheme (13-1-2006) and the  

constitution of the Special Committee to inquire into the  

said allegations of misconduct (18-12-2007).  

41.  The  literal  meaning  of  ‘dissolution’  is  listed  in  

Black’s Law Dictionary, 8th edn. [(West Group) at p. 506] as  

‘the act of bringing to an end; termination’. P. Ramanatha  

Aiyar, Advanced Law Lexicon, 3rd edn., Vol. 2D-I, (Wadhwa &  

Co., 2005) furnishes the following definition, at p. 1435:

“Dissolution and prorogation.-  Constitution of India,  Art.107  (3),  174(2)  (a)  &  (b),  196.  Dissolution  of  

59

Parliament is invariably proceeded by prorogation, and  what is true about the result of prorogation, is, it  is  said  a  fortiori  true  about  the  result  of  dissolution.  Dissolution  of  Parliament  is  sometimes  described as “a civil death of Parliament”. Ilbert in  his  work  on  ‘Parliament’  has  observed  that  ‘prorogation’  means  the  end  of  a  Session  (not  of  parliament)’; and adds that “like dissolution it kills  all bills which have not yet been passed”. He also  describes dissolution as “an end of Parliament (not  merely  of  a  session)  by  royal  proclamation”,  and  observes that “it wipes the slate clean of uncompleted  bills or other proceedings”.     

The effects of dissolution have also been discussed in the  

following manner [Cited from: Kaul and Shakdher,  Practice  

and  Procedure  of  Parliament,  5th edn. (New  Delhi:  

Metropolitan Book Co. Pvt. Ltd., 2001)  at pp. 191-193]:

EFFECTS OF DISSOLUTION “Dissolution, as already stated, marks the end of the  life of a House and is followed by the constitution of  a new House. One the House has been dissolved, the  dissolution is irrevocable. There is no power vested  in the president to cancel his order of dissolution  and  revive  the  previous  House.  The  consequences  of  dissolution  are  absolute  and  irrevocable.  In  Lok  Sabha, which alone is subject to dissolution under the  Constitution,  dissolution  “passes  a  sponge  over  the  Parliamentary slate”. All business pending before it  or  any  of  its  committees  lapses  on  dissolution.  No  part  of  the  records  of  the  dissolved  House  can  be  carried  over  and  transcribed  into  the  records  and  registers  of  the  new  House.  In  short,  dissolution  draws the final curtain upon the existing House.  

Business  before  a  Committee:  All  business  pending  before Parliamentary Committees of Lok Sabha lapse on  dissolution of Lok Sabha. Committees themselves stand  dissolved on dissolution of a Lok Sabha. However, a  Committee which is unable to complete its work before  the dissolution of a House may report to the house to  that effect, in which case any preliminary memorandum  

60

or note that the committee may have prepared or any  evidence that it may have taken is made available to  the new Committee when appointed.”       

42.  Coming  to  judicial  observations,  the  effect  of  

dissolution of a House were discussed by this Court in the  

Gujarat  Assembly  Election  case,  (2002)  8  SCC  237.  V.N.  

Khare, J. (as His Lordship then was) had made the following  

observations:  

“40… Dissolution ends the life of the legislature and  brings an end to all business. The entire chain of  sittings and sessions gets broken and there is no next  session or the first sitting of the next session after  the House itself has ceased to exist. Dissolution of  Legislative Assembly ends the representative capacity  of  legislators  and  terminates  the  responsibility  of  the Cabinet to the Members of the Lok Sabha or the  Legislative Assembly, as the case may be.”

Furthermore, Pasayat, J. had explained:   

“135. Dissolution brings a legislative body to an end.  It essentially terminates the life of such body and is  followed by constitution of a new body (a Legislative  Assembly or a House of People, as the case may be).  Prorogation on the other hand relates to termination  of  a  session  and  thus  precludes  another  session,  unless it coincides with the end of the legislative  term. The basic difference is that prorogation unlike  dissolution does not affect a legislative body’s life  which may constitute from session to session, until  brought to an end by dissolution. Dissolution draws  the final curtain upon the House. Once the House is  

61

dissolved it becomes irrevocable. There is no power to  recall  the  order  of  dissolution  and/  or  revive  the  previous House. Consequently effect of dissolution is  absolute  and  irrevocable.  It  has  been  described  by  some learned authors that dissolution “passes a sponge  over  the  parliamentary  slate”.  The  effect  of  dissolution  is  in  essence  termination  of  current  business  of  the  legislative  body,  its  sittings  and  sessions. There is a cessation of chain of sessions,  sittings for a dissolved legislative body and there  cannot be any next session or its first sitting. With  the election of a legislative body a new chapter comes  into operation. Till that is done the sine qua non of  responsible  government  i.e.  accountability  is  non- existent.  Consequentially,  the  time  stipulation  is  non-existent.  Any  other  interpretation  would  render  use of word “its” in relation to “last sitting in one  session”  and  “first  sitting  in  the  next  session”  without significance.”                         

43. In Purushothaman Nambudiri v. State of Kerala, AIR 1962  

SC 694, Gajendragadkar J. (as His Lordship then was) had  

reflected on the effects of the dissolution of the House.  

The context in that case was that a Legislative Assembly  

had passed a bill and later the President had sent the bill  

back  for  reconsideration  by  the  successor  assembly.  The  

question  of  whether  the  successor  assembly  needed  to  

consider the bill afresh and pass it again was answered in  

the affirmative:

“6.  …  The  duration  of  the  Legislative  Assembly  is  prescribed by Article 172 (1), and normally at the end  of five years the life of the Assembly would come to  an  end.  Its  life  could  come  to  an  end  before  the  expiration of the said period of the five years if  during the said five years the President acts under  

62

Article 356. In any case there is no continuity in the  personality  of  the  Assembly  where  the  life  of  one  Assembly comes to an end and another Assembly is in  due course elected. If that be so, a bill passed by  one Assembly cannot, on well recognized principles of  democratic government be brought back to the successor  Assembly as though a change in the personality of the  Assembly  had  not  taken  place.  The  scheme  of  the  Constitution in regard to the duration of the life of  State Legislative Assembly, it is urged, supports the  argument that with the dissolution of the Assembly all  business pending before the Assembly at the date of  dissolution  must  lapse.  This  position  would  be  consonant  with  the  well  recognized  principles  of  democratic  rule.  The  Assembly  derives  its  sovereign  power to legislate essentially because it represents  the will of the citizens of the State, and when one  Assembly  has  been  dissolved  and  another  has  been  elected in its place, the successor Assembly cannot be  required to carry on with the business pending before  its predecessor, because that would assume continuity  of personality which in the eyes of the Constitution  does not exist. Therefore, sending the bill back to  the  successor  Assembly  with  the  message  of  the  President  would  be  inconsistent  with  the  basic  principles of democracy.”           

In  Sub-Committee  on  Judicial  Accountability v.  Union  of  

India , (1991) 4 SCC 699, G.N. Ray, J. had discussed the  

effect of dissolution of the Lok Sabha:

“51.  Adverting to the effect of dissolution on other  business such as motions, resolutions etc. the learned  authors say:

“All  other  business  pending  in  Lok  Sabha  e.g.  motions,  amendments,  supplementary  demands  for  grants  etc.,  at  whatever  stage,  lapses  upon  dissolution, as also the petitions presented to  the House which stand referred to the Committee  on Petitions.”

63

44.  On  the  basis  of  the  authorities  cited  above,  it  is  

evident  that  ordinarily  legislative  business  does  not  

survive the dissolution of the House. The exception to this  

norm  is  covered  by  the  ‘doctrine  of  lapse’  wherein  the  

successor House can choose to take up a pending motion or  

any  order  of  business  after  the  re-constitution  of  the  

House.  However,  this  exception  is  not  applicable  in  the  

facts  of  the  present  case.  At  the  time  of  the  

reconstitution  of  the  Punjab  Vidhan  Sabha  following  the  

State  elections  in  February  2007,  there  was  no  pending  

motion, report or any other order of business which had a  

connection with the allegedly improper exemption of land.  

It  was  much  later,  i.e.  on  18-12-2007  that  a  Special  

Committee was constituted to inquire into the same. Hence,  

in  this  case  the  Special  Committee  proceeded  to  enquire  

into the executive acts of the appellants and petitioners  

which  had  taken  place  during  the  previous  term  of  the  

Punjab Vidhan Sabha. It is quite untenable to allow the  

exercise of legislative privileges to punish past executive  

acts especially when there was no pending motion, report or  

any other order of business that was relatable to the said  

executive acts at the time of the                re-

constitution of the House.  

64

45. While the legislature is free to inquire into acts and  

events  that  have  taken  place  in  the  past,  the  same  is  

ordinarily done in the nature of fact-finding to improve  

the quality of                 law-making. Legislative  

oversight over executive actions is an important facet of  

parliamentary democracy and such oversight can extend to  

executive  decisions  taken  in  the  past.  However,  it  is  

altogether  another  matter  if  privileges  are  purportedly  

exercised to punish those who have held executive office in  

the past. It is quite inconceivable as to how the allegedly  

improper exemption of land (notified on 13-1-2006) had the  

effect of obstructing the legislative business in the 13th  

term  of  the  Punjab  Vidhan  Sabha.  Hence,  it  is  our  

considered  view  in  respect  of  the  facts  in  the  present  

case, that it was improper for the 13th Punjab Vidhan Sabha  

to claim a breach of privileges on account of the alleged  

misconduct which actually took place during the 12th term of  

the Vidhan Sabha. However, our view should not be mistaken  

for  a  general  proposition  since  it  is  within  our  

imagination that in some circumstances the acts that have  

taken  place  during  the  previous  terms  of  a  Legislature  

could actually have the effect of distorting, obstructing  

or diluting the integrity of legislative business in the  

65

present term. Evidently, no such consequence or tendency  

has been demonstrated in the present case.       

Re: Question III.  

46. As noted in the survey of facts at the beginning of  

this opinion, the allegedly improper exemption of land from  

the Amritsar Improvement Scheme is the subject-matter of  

disputes that are pending before the High Court of Punjab  

and  Haryana.  Admittedly,  these  proceedings  had  been  

instituted  soon  after  the  notification  of  the  said  

exemption (dated               13-1-2006) and the fact of  

their  pendency  was  well  known  at  the  time  of  the  

constitution of the Special Committee by the Punjab Vidhan  

Sabha on 18-12-2007. This begs the question as to whether  

it was proper for the Punjab Vidhan Sabha to inquire into  

subject-matter  which  was  already  in  question  before  a  

judicial forum.   

47. The norms to be followed by a legislature in respect of  

sub  judice  matters have  been  discussed  in  the  following  

words [Cited from: Griffith and Ryle, Parliament, Functions  

and Procedure (2003), Chapter 6 at Para 6-075):  

66

“A more significant reason for not allowing a notice  of motion is if the matter is sub judice (awaiting  decision  in  the  courts);  the  same  rule  applies  to  debate and questions. The sub judice rule does not,  however,  apply  to  legislative  business  or  where  a  ministerial  decision  is  in  question  (e.g.  in  an  application for judicial review). It applies only to  cases in UK courts, not ones in courts elsewhere, even  if they concern UK matters (e.g. the European Court of  Human Rights). The Speaker has discretion to waive the  rule  and  would  normally  do  so  when  the  case  in  question concerned issues of national importance such  as the economy, public order or essential services.  

This  long  standing  practice  has  been  confirmed  by  resolutions of the House. Cases which are active in a  criminal  court  in  the  United  Kingdom  must  not  be  referred to; this applies from the moment charges are  made until the verdict is given. The same applies to  civil  actions  once  arrangements  are  made  for  a  hearing. Cases which have been decided can become sub  judice again if one party applies for leave to appeal.  Under  this  rule,  which  comes  into  operation  in  relation to some half-dozen cases a session, motions  (or questions) may not be tabled until the case is  decided. If a motion has been tabled before the matter  became  sub  judice  it  is  taken  off  the  Order  Paper  until the case ceases to be sub judice.”

48. In fact, the relevant rules of the  Rules of Business  

and  Conduct  of  the  Punjab  Vidhan  Sabha themselves  

incorporate  these  norms.  Reference  may  be  made  to  the  

language of Rule 39(10), 50, 93(2)(iv) and 150(d) which lay  

down the following:  

“39. In order that a question may be admissible it  shall satisfy the following conditions, namely-:

67

… (10) It shall not ask for information on any matter  which is under adjudication by a court of law having  jurisdiction in any part of India;

…  50.  The  right  to  move  the  adjournment  of  the  business  of  the  Vidhan  Sabha  (Assembly)  for  the  purpose  of  discussing  a  definite  matter  of  urgent  public importance shall be subject to the following  restrictions, namely -:

**** (ix) the motion shall not deal with a matter on  

which a resolution could not be moved; ****

(xi) the motion shall not deal with any matter  which is under adjudication by a Court of  law;

… 93. (1) The matter of every speech shall be strictly  relevant to the matter before the House.

(2) A member while speaking shall not- ****

(iv) refer  to  a  matter  of  fact  on  which  a  judicial decision is pending;

.. 150. In order that a resolution may be admissible,  it shall satisfy the following conditions, namely-

**** (d) it shall not relate to any matter which is  under  adjudication  by  a  Court  of  law  having  jurisdiction in any part of India.”

49. The above-mentioned rules which govern the business and  

conduct of the Punjab Vidhan Sabha are quite categorical in  

laying down a prohibition on the taking up of any matter  

which  is  pending  adjudication  before  a  court  of  law.  

Analogues provisions control the business and conduct of  

the Lok Sabha [See Rules 173, 188 and 352 of the Rules of  

Business  and  Conduct  of  the  Lok  Sabha].  While  Articles  

68

122(1)  and  212(1)  of  the  Constitution  prohibit  judicial  

scrutiny over questions relating to compliance with these  

rules, our attention has been drawn to the fact that the  

Punjab Vidhan Sabha proceeded to inquire into the allegedly  

improper exemption of land from the Amritsar Improvement  

Scheme, even though the same had been questioned before the  

High Court of Punjab and Haryana.   

50.  Subhash  C.  Kashyap  [in  Parliamentary  Procedure-  Law  

Privileges,  Practice  &  Precedents  Vol.  1,  (New  Delhi:  

Universal  Law  Publishing  Co.  Pvt.  Ltd.,  2000)]  has  

described a prominent example where the Speaker of the Lok  

Sabha had disallowed discussion on subject-matter that was  

pending  before  the  courts.  The  following  extract  also  

touches  on  arguments  for  allowing  the  legislature  to  

discuss  sub  judice matters  in  exceptional  cases  (at  pp.  

1225- 1226):  

(iii) The  following  motion  tabled  by  a  member  (Madhu  Limaye)  was  included  in  the  List  of  Business for 7 May 1968:

That  this  House  disapproves  of  the  statements  made by Shri Ranganathan, Under Secy., Ministry  Of External Affairs, on behalf of the Government  of India in his affidavit in opposition on the 21  Apr. 1968, before the Delhi High Court which are  contrary to the statements made by the Minister  of Home Affairs in the House on the 28 Feb. 1968  in regard to implementation of Kutch Award.

69

When  Limaye  was  called  to  move  his  motion,  a  point of order was raised by a member (Narayan  Rao)  and  Law  Minister  (P.  Govinda  Menon)  that  discussion on affidavit would mean discussing a  sub  judice matter.  The  Speaker  reserved  his  ruling. On 9 May 1968, the Speaker ruled  inter  alia as follows:

The rule on whether a motion which relates  to a matter which is under adjudication by a  court of law should be admitted or discussed  in the House has to be interpreted strictly.  While  on  the  one  hand  the  Chair  has  to  ensure  that  no  discussion  in  the  House  should prejudice the course of justice, the  Chair has also to see that the House is not  debarred from discussing an urgent matter of  public  importance  on  the  ground  that  a  similar, allied or linked matter is before a  court of law. The test of  sub judice in my  opinion should be that the matter sought to  be  raised  in  the  House  is  substantially  identical with the one which a court of law  has  to  adjudicate.  Further,  in  case  the  Chair holds that a matter is sub judice the  effect of this ruling is that the discussion  on the matter is postponed till the judgment  of the court is delivered. The bar of  sub  judice will not apply thereafter, unless the  matter becomes sub judice again on an appeal  to a higher court. Applying these two tests  to  the  present  notice  of  motion  by  Shri  Limaye,  I  consider  that  in  view  of  the  statement  by  the  Law  Minister,  that  ‘the  question  that  the  affidavit  filed  by  the  Under Secretary is slightly at variance with  what the Home Minister has stated has been  raised  in  the  court  and  is  under  adjudication by the court’ the very matter  which is sought to be raised by the member  is  awaiting  adjudication  by  the  court  of  law.  

Hence  I  consider  that  discussion  on  the  notice of motion should be postponed until  the court has delivered its judgment. I am  however, clear that the matter is of public  

70

importance which should be discussed in the  House and its importance will not be lost if  the  House  awaits  until  the  Court  has  adjudicated  in  the  matter.  [LS  Deb.  6.5.1968, cc 2198- 2203; 7.5.1968, cc. 2649- 65; 9.5.1968, cc. 3149- 56]”  

51. It is a settled principle that ordinarily the content  

of legislative proceedings should not touch on  sub judice  

matters.  As  indicated  in  the  extract  quoted  above,  the  

rationale  for  this  norm  is  that  legislative  debate  or  

scrutiny over matters pending for adjudication could unduly  

prejudice the rights of the litigants. In the case at hand,  

the allegedly improper exemption of land (measuring 32.10  

acres)  from  the  Amritsar  Improvement  Scheme  had  already  

been  questioned  before  the  High  Court  of  Punjab  and  

Haryana. Thus, the Punjab Vidhan Sabha ought not to have  

constituted a committee to inquire into the same.  

CONCERNS ABOUT INTRUSION INTO THE EXECUTIVE AND JUDICIAL  

DOMAIN  

52. The doctrine of separation of powers is an inseparable  

part of the evolution of parliamentary democracy itself.  

Renowned  French  philosopher  Montesquieu  had  drawn  the  

attention of political theorists to the dangers inherent in  

the  concentration  of  legislative,  executive  and  judicial  

71

powers in one authority and stressed on the necessity of  

checks  and  balances  in  constitutional  governance.  Our  

institutions of governance have been intentionally founded  

on  the  principle  of  separation  of  powers  and  the  

Constitution does not give unfettered power to any organ.  

All  the  three  principal  organs  are  expected  to  work  in  

harmony and in consonance with the spirit and essence of  

the Constitution. It is clear that a legislative body is  

not entrusted with the power of adjudicating a case once an  

appropriate forum is in existence under the constitutional  

scheme.  It  would  be  pertinent  to  cite  the  following  

observations made by M.H. Beg J. (as His Lordship then was)  

in Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1:

“392…One of these basic principles seems to me to be  that,  just  as  courts  are  not  constitutionally  competent  to  legislate  under  the  guise  of  interpretation, so also neither our Parliament nor any  State Legislature, in the purported exercise of any  kind  of  law-  making  power,  perform  an  essentially  judicial  function  by  virtually  withdrawing  a  particular case, pending in any court, and taking upon  itself the duty to decide it by an application of law  or its own standards to the facts of that case. This  power must at least be first constitutionally taken  away from the court concerned and vested in another  authority before it can be lawfully exercised by that  other  authority.  It  is  not  a  necessary  or  even  a  natural  incident  of  a  “constituent  power”.  As  Hans  Kelsen points out, in his “General Theory of Law and  the State” (see p.143), while creation and annulment  of all general norms, whether basic or not so basic,  is  essentially  a  legislative  function  their  interpretation  and  application  to  findings  reached,  

72

after a correct ascertainment of facts involved in an  individual case, by employing the judicial technique,  is really a judicial function. Neither of the three  constitutionally  separate  organs  of  State  can,  according  to  the  basic  scheme  of  our  Constitution  today,  leap  outside  the  boundaries  of  its  own  constitutionally assigned sphere or orbit of authority  into that of the other. This is the logical meaning of  the  principle  of  supremacy  of  the  Constitution.”  

53. The impugned resolution (dated 10-9-2008) passed by the  

Punjab  Vidhan  Sabha  contains  directions  as  to  how  the  

investigation into the appellant’s and petitioners’ alleged  

wrongdoing should be conducted. The resolution directs the  

filing of First Information Reports (FIRs) and custodial  

interrogation  in  addition  to  directing  the  Vigilance  

Department, Punjab to find out where the appellant and the  

others have stored their ‘ill gotten wealth’ and further  

directs  the  Vigilance  Department  to  report  back  to  the  

Speaker  of  the  Punjab  Vidhan  Sabha.  These  functions  are  

within  the  domain  of  the  executive.  It  is  up  to  the  

investigating agencies themselves to decide how to proceed  

with the investigation in a particular case. The role of  

the  legislature  in  this  regard  can  at  best  be  

recommendatory  and  the  Speaker  of  a  Legislature  may  not  

assume  the  responsibility  of  monitoring  an  ongoing  

investigation. A determination of guilt or innocence by way  

73

of fact-finding is a role properly reserved for the trial  

judge. The only exception to this principle is when the  

impugned acts have the effect of distorting, obstructing or  

threatening the integrity of legislative proceedings or are  

likely to do the same, thereby warranting the exercise of  

privileges. As we have already noted above, there was an  

obvious jurisdictional error on part of the Punjab Vidhan  

Sabha in the present case.  

54. A decision of the United States Supreme Court which  

raised similar concerns was that of Kilbourn  v. Thompson,  

103  US  168  (1881).  In  that  case,  the  House  of  

Representatives of the United States Congress had appointed  

a Special Committee to investigate into activities related  

to a ‘real estate pool’, since it had attracted investments  

from one Jay Cook & Co. who was a debtor-in-bankruptcy to  

the Government of the United States. The Special Committee  

was  set  up  and  it  had  served  a  sub  poena to  Kilbourn,  

requiring the latter to present himself before the Special  

Committee and to answer questions and produce documents.  

Kilbourn  appeared  but  he  refused  to  cooperate  with  the  

Committee’s  proceedings.   The  House  of  Representatives  

passed a resolution directing that Kilbourn be arrested and  

placed under custody until such time as he purged himself  

74

of  the  contempt  and  communicated  to  the  House  his  

willingness to submit to the jurisdiction of the Special  

Committee.  The  matter  reached  the  Supreme  Court  of  the  

United States by way of a writ of  habeas corpus filed by  

Kilbourn.  The  relevant  observations  by  Miller,  J.  are  

produced as follows:

“In looking to the preamble and resolution under which  the committee acted, before which Kilbourne refused to  testify,  we  are  of  the  opinion  that  the  House  of  Representatives not only exceeded the limit of its own  authority,  but  assumed  a  power  which  could  only  be  properly  exercised  by  another  branch  of  the  government,  because  it  was,  in  its  nature,  clearly  judicial.  

The Constitution declares that the judicial power of  the United States shall be vested in one Supreme Court  and in such inferior courts as the Congress may from  time to time ordain and establish. If what we have  said of the division of the powers of the government  among  the  three  departments  be  sound,  this  is  equivalent to a declaration that no judicial power is  vested in the Congress or either branch of it, save in  cases  specifically  enumerated  to  which  we  have  referred. If the investigation which the committee was  directed to make was judicial in its character, and  could  only  be  properly  and  successfully  made  by  a  court  of  justice,  and  if  it  related  to  a  matter  wherein  relief  or  redress  could  be  had  only  by  a  judicial proceeding, we do not, after what has been  said,  deem  it  necessary  to  discuss  the  proposition  that  the  power  attempted  to  be  exercised  was  one  confided by the Constitution to the judicial, and not  to the legislative, department of the government. We  think  it  equally  clear  that  the  power  asserted  is  judicial, and not legislative.       (103 US 168, 192- 193)  

****

75

How could the House of Representatives know, until it  had been fairly tried, that the courts were powerless  to redress the creditors of Jay Cook & Co.? The matter  was still pending in a court, and what right had the  Congress of the United States to interfere with a suit  pending in a court of competent jurisdiction? Again,  what inadequacy of power existed in the court, or, as  the preamble assumes, in all courts, to give redress  which could lawfully be supplied by an investigation  by a committee of one House of Congress, or by any act  or  resolution  of  Congress  on  the  subject?  The  case  being one of a judicial nature, for which the power of  the courts usually afford the only remedy, it may well  be supposed that those powers were more appropriate  and more efficient in said of such relief than the  powers  which  belong  to  a  body  whose  function  is  exclusively  legislative.  If  the  settlement  to  which  the preamble refers as the principal reason why the  courts are rendered powerless was obtained by fraud,  or  was  without  authority,  or  for  any  conceivable  reason could be set aside or avoided, it should be  done by some appropriate proceeding in the court which  had the whole matter before it, and which had all the  power in that case proper to be entrusted to any body,  and not by Congress or by any power to be conferred on  a  committee  of  one  of  the  two  Houses.”  (103 US 168, 194)

The observations cited above are self-explanatory and we  

echo  the  concerns  about  the  overreach  into  the  judicial  

domain in the fact-situation before us.  

CONCLUSION   

55.  In  the  light  of  the  preceding  discussion  we  have  

arrived at the following conclusions:  

76

(i) If there were any irregularities committed by the  

appellant  and  the  petitioners  in  relation  to  the  

exemption of land (notified on 13-1-2006) from the  

Amritsar Improvement Scheme, the proper course of  

action on part of the State Government should have  

been to move the criminal law machinery with the  

filing of a complaint followed by investigation as  

contemplated under the Code of Criminal Procedure.  

It is our considered view that the Punjab Vidhan  

Sabha exceeded its powers by expelling the appellant  

on the ground of a breach of privilege when there  

existed none. The allegedly improper exemption of  

land  was  an  executive  act  attributable  to  the  

appellant  and  it  did  not  distort,  obstruct  or  

threaten the integrity of legislative proceedings in  

any  manner.  Hence,  the  exercise  of  legislative  

privileges under Article 194(3) of the Constitution  

was not proper in the present case.    

(ii) Furthermore,  the  allegedly  improper  exemption  of  

land took place during the 12th term of the Punjab  

Vidhan  Sabha,  whereas  the  constitution  of  the  

Special  Committee  to  inquire  into  the  same  took  

place during the 13th term. It was not proper for the  

Assembly  to  inquire  into  actions  that  took  place  

77

during its previous term, especially when there was  

no  relatable  business  that  had  lapsed  from  the  

previous term. If we were to permit the legislature  

to exercise privileges for acting against   members  

for their executive acts during previous terms, the  

Courts are likely to be flooded with cases involving  

political rivalries. One can conceive that whenever  

there is a change of regime, the fresh incumbents  

would readily fall back on the device of legislative  

privileges  to  expel  their  political  opponents  as  

well as dissidents. Such a scenario would frustrate  

some  of  the  basic  objectives  of  a  parliamentary  

democracy.  

(iii)When it was well known that the allegedly improper  

exemption  of  land  from  the  Amritsar  Improvement  

Scheme  was  the  subject-matter  of  proceedings  

instituted  before  the  High  Court  of  Punjab  and  

Haryana,  the  Punjab  Vidhan  Sabha  should  have  

refrained from dealing with the same subject-matter.  

56. We accordingly declare that the resolution passed by  

the  Punjab  Vidhan  Sabha  on  10-9-2008,  directing  the  

expulsion of the appellant for the remainder of the 13th  

78

term  of  the  Vidhan  Sabha  is  constitutionally  invalid.  

Hence,  we  direct  the  restoration  of  the  appellant’s  

membership in the Punjab Vidhan Sabha. However, nothing in  

this  judgment  should  act  as  a  hurdle  against  the  

investigation,  if  any,  into  the  alleged  role  of  the  

appellant and the petitioners in the improper exemption of  

land from the Amritsar Improvement Scheme that was notified  

on 13-1-2006. To repeat a cliché, the law will take its own  

course.  

57. This appeal and the connected petitions are disposed  

off accordingly, however with no order as to costs.

………………………………..CJI       (K.G. BALAKRISHNAN)

..……………..……………..….J. (R.V. RAVEENDRAN)

…………….…….…………..…J. (P. SATHASIVAM)

                       ……….…………….…………..J.      (J.M. PANCHAL)

………………..……………..…J.                                         (R.M. LODHA)

New Delhi  April  26, 2010

79