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CASE NO.: Writ Petition (civil)  1 of 2006

PETITIONER: Raja Ram Pal

RESPONDENT: The Hon’ble Speaker, Lok Sabha & Ors

DATE OF JUDGMENT: 10/01/2007

BENCH: CJI Y.K. Sabharwal,K.G. Balakrishnan & D.K. Jain

JUDGMENT: [With Transferred Case Nos. 82 to 90 of 2006 and  Writ Petition (C) No. 129 of 2006]   

J U D G M E N T

Y.K. Sabharwal, CJI. Factual Backgrounds The interpretation of Article 105 of Constitution of India  is in issue in these matters.  The question is whether in  exercise of the powers, privileges and immunities as contained  in Article 105, are the Houses of Parliament competent to  expel their respective Members from membership of the  House.  If such a power exists, is it subject to judicial review  and if so, the scope of such judicial review.         The unfortunate background in which the aforesaid  questions have arisen is the allegation that the Members of  Parliament (MPs) indulged in unethical and corrupt practices  of taking monetary consideration in relation to their functions  as MPs.          A private channel had telecast a programme on 12th  December, 2005 depicting 10 MPs of House of People (Lok  Sabha) and one of Council of States (Rajya Sabha) accepting  money, directly or through middleman, as consideration for  raising certain questions in the House or for otherwise  espousing certain causes for those offering the lucre.  This led  to extensive publicity in media.  The Presiding Officers of each  Houses of Parliament instituted inquiries through separate  Committees.  Another private channel telecast a programme  on 19th December, 2005 alleging improper conduct of another  MP of Rajya Sabha in relation to the implementation of  Member of Parliament Local Area Development Scheme        (’MPLAD’ Scheme for short).  This incident was also referred to  a Committee.         The Report of the inquiry concluded, inter alia, that the  evidence against the 10 members of Lok Sabha was  incriminate; the plea that the video footages were  doctored/morphed/edited had no merit; there was no valid  reason for the Committee to doubt the authenticity of the  video footage; the allegations of acceptance of money by the  said 10 members had been established which acts of  acceptance of money had a direct connection with the work of  Parliament and constituted such conduct on their part as was  unbecoming of Members of Parliament and also unethical and  calling for strict action.  The majority report also recorded the

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view that in case of misconduct, or contempt, committed by its  members, the House can impose punishment in the nature of  admonition, reprimand, withdrawal from the House,  suspension from service of House, imprisonment, and  expulsion from the House.  The majority Report recorded its  deep distress over acceptance of money by MPs for raising  questions in the House and found that it had eroded the  credibility of Parliament as an institution and a pillar of  democracy in this country and recommended expulsion of the  10 members from the membership of Lok Sabha finding that  their continuance as Members of the House would be  untenable.  One member, however, recorded a note of dissent  for the reasons that in his understanding of the procedure as  established by law, no member could be expelled except for  breach of privileges of the House and that the matter must,  therefore, be dealt with according to the rules of the Privileges  Committee.           On the Report of the Inquiry Committee being laid on the  table of the House, a Motion was adopted by Lok Sabha  resolving to expel the 10 members from the membership of  Lok Sabha, accepting the finding as contained in the Report of  the Committee that the conduct of the members was unethical  and unbecoming of the Members of Parliament and their  continuance as MPs is untenable.  On the same day i.e. 23rd  December, 2005, the Lok Sabha Secretariat issued the  impugned notification notifying the expulsion of those MPs  with effect from same date.  In the Writ Petitions/Transfer  Cases, the expelled MPs have challenged the constitutional  validity of their respective expulsions.         Almost a similar process was undertaken by the Rajya  Sabha in respect of its Member.  The matter was referred to  the Ethics Committee of the Rajya Sabha.  As per the majority  Report, the Committee found that the Member had accepted  money for tabling question in Rajya Sabha and the plea taken  by him in defence was untenable in the light of evidence before  it.  However, one Member while agreeing with other Members  of the Committee as to the factual finding expressed opinion  that in view, amongst others, of the divergent opinion  regarding the law on the subject in judgments of different High  Courts, to which confusion was added by the rules of  procedure inasmuch as Rule 297(d) would not provide for  expulsion as one of the punishments, there was a need for  clarity to rule out any margin of error and thus there was a  necessity to seek opinion of this Court under Article 143(1) of  the Constitution.          The Report of the Ethics Committee was adopted by  Rajya Sabha concurring with the recommendation of  expulsion and on the same date i.e. 23rd December, 2005, a  notification notifying expulsion of the Member from  membership of Rajya Sabha with immediate effect was issued.         The case of petitioner in Writ Petition (C) No.129/2006  arises out of different, though similar set of circumstances.  In  this case, the telecast of the programme alleged improper  conduct in implementation of MPLAD Scheme.  The  programme was telecast on 19th December, 2005.  The Report  of the Ethics Committee found that after viewing the unedited  footage, the Committee was of the view that it was an open  and shut case as Member had unabashedly and in a  professional manner demanded commission for helping the so- called NGO to set up projects in his home state/district and to  recommend works under MPLAD Scheme.  The Committee  came to the conclusion that the conduct of the Member  amounts to violations of Code of Conduct for Members of  Rajya Sabha and it is immaterial whether any money changed  hands or not or whether any commission  was actually paid or

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not.  It found that the Member has not only committed gross  misdemeanor but by his conduct he also impaired the dignity  of the House and its Member and acted in a manner which is  inconsistent with the standards that the House is entitled to  expect of its Members.  Since the conduct of the Member has  brought the House and its Member into disrepute, the  Committee expressed the view that the Member has forfeited  his right to continue as Member and, therefore, recommended  his expulsion from the membership of the House.  The Rajya  Sabha accepted the recommendations of the Ethics Committee  and Motion agreeing with the recommendation was adopted on  21st March, 2006 thereby expelling the Member from the  membership bringing to an end his membership.  On the same  date notification was issued by Rajya Sabha Secretariat.         The two Members of Rajya Sabha have also challenged  the constitutional validity of their expulsions. Article 105 reads as under : "105. Powers, privileges, etc. of the  Houses of Parliament and of the  members and committees thereof.--(1)  Subject to the provisions of this  Constitution and the rules and standing  orders regulating the procedure of  Parliament, there shall be freedom of  speech in Parliament. (2) No member of Parliament shall be  liable to any proceedings in any court in  respect of anything said or any vote given  by him in Parliament or any committee  thereof, and no person shall be so liable  in respect of the publication by or under  the authority of either House of  Parliament of any report, paper, voles or  proceedings. (3) In other respects, the powers,  privileges and immunities of each House  of Parliament, and of the members and  the committees of each House, shall be  such as may from time to time be defined  by Parliament by law, and, until so  defined, shall be those of that House and  of its members and committees  immediately before the coming into force  of section 15 of the Constitution (Forty- fourth Amendment) Act 1978. (4) The provisions of clauses (1), (2) and  (3) shall apply in relation to persons who  by virtue of this Constitution have the  right to speak in, and otherwise to take  part in the proceedings of, a House of  Parliament or any committee thereof as  they apply in relation to members of  Parliament."

       There is identical provision as contained in Article 194  relating to powers, privileges and immunities of State  legislature.  Article 194 reads as under :- "194.Powers, privileges, etc., of the  House of Legislatures and of the  members and committees thereof.--(1)  Subject to the provisions of this  Constitution and to the rules and  standing orders regulating the procedure  of the Legislature, there shall be freedom  of speech in the Legislature of every Slate.

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(2) No member of the Legislature of a  State shall be liable to any proceedings in  any court in respect of anything said or  any vote given by him in the Legislature  or any committee thereof, and no person  shall be so liable in respect of the  publication by or under the authority of a  House of such a Legislature of any report,  paper, votes or proceedings.  (3) In other respects, the powers,  privileges and immunities of a House of  the Legislature of a State, and of the  members and the committees of a House  of such Legislature, shall be such as may  from time to time be defined by the  Legislature by law, and, until so defined,  shall be those of that House and of its  members and committees immediately  before the coming into force of section 26  of the Constitution (forty-fourth  Amendment) Act, 1978. (4) The 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."

Article 105(3) underwent a change in terms of Section 15  of the Constitution (44th Amendment) Act, 1978.  In Article  105(3), the words "shall be those of the House of Commons of  the Parliament of the United Kingdom, and of its members and  committees at the commencement of this Constitution" were  substituted by the words "shall be those of that House and of  its members and committees immediately before the coming  into force of Section 15 of the Constitution (fourty-fourth  Amendment) Act, 1978".  The similar changes were also  effected in Article 194(3) of the Constitution.  These  amendments have no relevance for determining the  interpretation of Article 105(3) since the amendments clearly  seem to be only cosmetic for the purpose of omitting the  reference of the House of Commons in these articles. Before the amendment in 1978, clause (3) of Article 105  read as under :- "(3). In other respects, the powers,  privileges and immunities of each House  of Parliament, and of the members and  the committees of each House, shall be  such as may from time to time be defined  by Parliament by law, and, until so  defined, shall be those of the House of  Commons of the Parliament of the United  Kingdom, and of its members and  committees, at the commencement of this  Constitution."  Contentions         The petitioners submit that all the powers,  privileges or immunities, as vested on the date of  commencement of the Constitution of India, in the House of  Commons of the Parliament of United Kingdom had not been  inherited by the legislatures in India under Article 105(3) of  the Constitution.           The main contention urged is that power and privilege of

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expulsion was exercised by the House of Commons as a facet  of its power of self-composition and since such power of such  self-composition has not been given by the Constitution to  Indian legislature, it did not inherit the power to expel its  members.  The contention is that expulsion is necessarily  punitive in nature rather than remedial and such power vested  in House of Commons as a result of its power to punish for  contempt in its capacity as a High Court of Parliament and  since this Status was not accorded to Indian Legislature, the  power to expel could not be claimed by the Houses of  Parliament under Article 105(3).  It is also their contention  that power to expel cannot be asserted through Article 105(3)  also for the reason that such an interpretation would come in  conflict with other constitutional provisions.  A grievance has  also been made about denial of principles of natural justice in  the inquiry proceedings and it is contended that there are  gross and patent illegalities which are not protected from  judicial review by Article 122 on plea of procedural  irregularities.  The contention of the petitioners further is that  even the plenary powers of the legislature are controlled by the  basic concepts of the Constitution and, therefore, it has to  function within the circumscribed limits.  The submission is  that this Court is the final arbiter on the constitutional issues  and the existence of judicial power in such behalf must  necessarily and inevitably postulate the existence of a right in  the citizen to move the Court for protection of fundamental  rights and for due adherence to the constitutional provisions  and scheme in absence of which the power conferred on the  judicial organ would be rendered meaningless.  The contention  also is that the extent and scope of power conferred on each  branch of the State, limits on the exercise of such power under  Constitution and any action of any branch that transgresses  such limit is for the judiciary to determine as the final  interpreter of the Constitution.  Petitioners submit that the  constitutional and legal protection accorded to the citizens  would become illusory if it were left to the organ in question to  determine the legality of its own action.  They further submit  that it is also a basic principle of rule of law permeating every  provision of the Constitution, rather forming its very core and  essence, that the exercise of power by the Executive or any  other authority must not only be conditioned by the  Constitution but also be in accordance with law in which  context it is primarily the function of the judiciary alone to  ensure that the law is observed and there is compliance with  the requirement of the constitutional provisions which is  performed through patent weapon used as power of judicial  review. On the plea that this Court has the jurisdiction to  exercise the power of judicial review in a case of this nature  where another coordinate organ of the State has asserted and  claimed a power and privilege on the strength of a  Constitutional provision seemingly also claiming "exclusive  cognizance", meaning immunity from judicial interference, the  contentions of the petitioners can be summarized thus:- (i)     The power of judicial review is an incident of and flows  from the concept that the fundamental and higher laws  are the touchstone of the limits of the powers of the  various organs of State which derive power and authority  under the Constitution of which the judicial wing is the  interpreter; (ii)    Unlike in England where Parliament is sovereign, in a  federal State with a written Constitution like India is, the  supremacy of the Constitution is fundamental to its  existence, which supremacy is protected by the authority  of the independent judicial body that acts as the

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interpreter thereof through the power of judicial review to  which even the Legislature is amenable and cannot claim  immunity wherefrom; (iii)   The legislative supremacy being subject to the  Constitution, Parliament cannot determine for itself the  nature, scope and effect of its powers which are,  consequently, subject to the supervision and control of  judicial organ; (iv)    The petitioners would also point out that unlike the  Parliament of England, the status of Legislature in India  has never been that of a superior court of record and that  even privileges of Parliament are subject to limits which  must necessarily be ascertainable and, therefore, subject  to scrutiny by the Court, like any other right; (v)     The validity of any proceedings even inside a legislative  chamber can be called in question before the Court when  it suffers from illegality and unconstitutionality and there  is no immunity available to Parliament from judicial  review. It is the petitioners’ contention that the Houses of  Parliament had no power of expulsion of a sitting member.  They plead that the petitioners could not be debarred from  membership of the House by or under the impugned  notifications pursuant to proceedings consequent upon the  media reports inasmuch as substantive and adjectival law had  been disregarded and the Constitutional inhibition placed on  the exercise of power of debarment had been defeated.  On the  case that the Indian legislatures cannot claim the power of  expulsion of their members, the contentions are stated thus:- (i)     The Legislature has no power to expel its member since  the Parliament has not enacted any law which provides  for expulsion of a member in a specified circumstance, in  terms of enabling power to legislate on the subject as  available in Article 105(3) of the Constitution; (ii)    The expulsions are illegal, arbitrary and unconstitutional,  being violative of the provisions of Articles 83, 84 and  101 to 103, 105 and 190 to 193 of the Constitution; (iii)   There is no provision either in the Constitution of India  or in the Rules of Procedure and Conduct of Business of  the Houses of Parliament for expulsion of a member by  adoption of a motion and thus the impugned acts were  beyond the jurisdiction of Parliament; (iv)    The expulsion of the petitioners from the Legislature  through a motion adopted by simple majority was a  dangerous precedent which would give dictatorial powers  to the ruling majority in the Legislatures in future and  thus be prone to further abuse; (v)     The Constitutional law governing the democracies the  world over, even in other jurisdictions governed by  written Constitutions, would not allow the power of  exclusion of the elected members unto the legislative  chamber.   Claiming that they were innocent and had been falsely  trapped, by the persons behind the so-called sting operation  who had acted in a manner actuated by mala fides and greedy  intent for cheap publicity and wrongful gains bringing the  petitioners into disrepute, the Petitioners question the  procedure adopted by the two Houses of Parliament alleging  that it suffered from gross illegality (as against procedural  irregularity) calling for judicial interference. In this respect, the  petitioners submit that the enquiries conducted by the two  Houses were unduly hurried; were neither fair nor impartial  and have resulted in gross violation of rules of natural justice  which were required to be followed inasmuch as the action  that was contemplated would entail civil consequences; the

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Petitioners had not even been treated as ordinary offenders of  law and deprived of basic opportunity of defending themselves  through legal counsel and opportunity to explain; the evidence  in the form of videography etc. had been relied upon without  opportunity being given to them to test the veracity of such  evidence, specially in the face of their defence that the video  clippings had been doctored or morphed which plea had not  been properly examined or enquired into and the evidence of  such nature had been relied upon in violation of the settled  law; the expulsions are illegal, arbitrary and unconstitutional,  being violative of the provisions of Articles 14 & 21 of the  Constitution; the petitioners claim that as a consequence of  the impugned decisions they had suffered irreparable loss and  their image and prestige had been lowered in the eyes of the  electorate.   The two Houses of Parliament, through their respective  secretariats, have chosen not to appear in the matter.  The  impugned decisions are, however, sought to be defended by  the Union of India.  The contention urged on behalf of Union of  India is that the conduct of accepting money for tabling  questions and raising matters in the House was considered by  the respective Houses of Parliament as unbecoming of  members of the House rendering them unfit for being  members of the respective Houses.  The actions of expulsions  are matters within the inherent power and privileges of the  Houses of Parliament.  It is a privilege of each House to  conduct its internal proceedings within the walls of the House  free from interference including its right to impose disciplinary  measures upon its members.  The power of the Court to  examine the action of a House over outsider in a matter of  privilege and contempt does not extend to matters within the  walls of the House over its own members.  When a member is  excluded from participating in the proceedings of the House, it  is a matter concerning the House and the grievance of  expulsion is in regard to proceedings within the walls of  Parliament and in regard to rights to be exercised within the  walls of the House, the House itself is the final judge.  The  expulsion of these members has been rightly carried out by  respective Houses in exercise of their powers and privileges  under Article 105(3) of the Constitution which power and  privilege of expulsion has been exercised by the Houses of  Parliament in the past as well.  The expulsion does not create  any disability to be re-elected again as a member of the House. We have heard learned Senior Advocates Mr. Ram  Jethmalani, Mr. P.N. Lekhi for the petitioners as also Dr. K.S.  Chauhan, Advocate and other learned counsel appearing for  the petitioners.  For the respondents, we have heard Mr. Gopal  Subramanian, learned additional Solicitor General appearing  on behalf of Attorney General for India and Mr. T.R.  Andhyarujina, learned Senior Advocate on behalf of Union of  India. Constitutional Scheme         To appreciate the contentions, it is necessary to first  examine the constitutional scheme.   That the Constitution is the Supreme lex in this Country  is beyond the pale of any controversy.  All organs of the State  derive their authority, jurisdiction and powers from the  Constitution and owe allegiance to it.  This includes this Court  also which represents the judicial organ.  In the celebrated  case of Kesavananda Bharati v. State of Kerala [(1973) 4  SCC 225], this Court found certain basic features of the  Constitution that include, besides supremacy of the  Constitution, the republican and democratic form of  Government, and the separation of powers between the  Legislature, the Executive and the Judiciary.  The principle of

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supremacy of the Constitution has been reiterated by this  Court post Kesavananda Bharati in case after case  including, to name just some of them, Indira Nehru Gandhi  v. Raj Narain [1975 (Suppl) SCC 1], Minerva Mills Ltd. v.  Union of India, [(1980) 3 SCC 625], Sub-Committee on  Judicial Accountability v. Union of India [(1991) 4 SCC  699],  I. Manilal Singh v. H . Borobabu Singh (Dr), [1994  Supp (1) SCC 718], Union of India v. Assn. for Democratic  Reforms,[(2002) 5 SCC 294], Special Reference No. 1 of  2002, In re (Gujarat Assembly Election matter) [(2002) 8  SCC 237], People’s Union for Civil Liberties (PUCL) v. Union  of India,[(2003) 4 SCC 399], Pratap Singh v. State of  Jharkhand, [(2005) 3 SCC 551], Rameshwar Prasad (VI) v.  Union of India, [(2006) 2 SCC 1], Kuldip Nayar vs. Union of  India, [(2006) 7 SCC 1].  That the parliamentary democracy in India is  qualitatively distinct from the one in England from where we  have borrowed the Westminster model of Government, is also  well settled.  In this context, before proceeding further on this  premise, we may quote the following observations of the  Constitution Bench (7 Judges) appearing at page 444 in  Special Reference No. 1 of 1964, [(1965) 1 SCR 413] (UP  Assembly case) :- "In dealing with this question, it is  necessary to bear in mind one  fundamental feature of a Federal  Constitution. In England, Parliament is  sovereign; and in the words of Dicey, the  three distinguishing features of the  principle of Parliamentary Sovereignty are  that Parliament has the right to make or  unmake any law whatever; that no  person or body is recognised by the law of  England as having a right to override or  set aside the legislation of Parliament,  and that the right or power of Parliament  extends to every part of the Queen’s  dominions [Dicey, The Law of the  Constitution 10th ed. Pp.xxxiv, xxxv]. On  the other hand, the essential  characteristic of federalism is "the  distribution of limited executive,  legislative and judicial authority among  bodies which are coordinate with and  independent of each other". The  supremacy of the constitution is  fundamental to the existence of a federal  State in order to prevent either the  legislature of the federal unit or those of  the member States from destroying or  impairing that delicate balance of power  which satisfies the particular  requirements of States which are  desirous of union, but not prepared to  merge their individuality in a unity. This  supremacy of the constitution is  protected by the authority of an  independent judicial body to act as the  interpreter of a scheme of distribution of  powers. Nor is any change possible in the  constitution by the ordinary process of  federal or State legislation [Ibid p.Ixxvii].  Thus the dominant characteristic of the  British Constitution cannot be claimed by  a Federal Constitution like ours."

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In the constitutional scheme that has been adopted in  India, the Legislatures play a significant role in pursuit of the  goals set before the nation and command the position of  grandeur and majesty.  The Legislatures undoubtedly have  plenary powers but such powers are controlled by the basic  concepts of the written constitution and can be exercised  within the legislative fields allotted to their respective  jurisdiction under the Seventh Schedule.  They have the  plenary legislative authority and discharge their legislative  functions by virtue of the powers conferred on them by the  relevant provisions of the Constitution. But, the basis of that  power is the Constitution itself.  In this context, it would be  fruitful to also take note of the following observations  appearing at page 445 of the afore-mentioned judgment in UP  Assembly case :- "\005\005.Besides, the legislative supremacy  of our legislatures including the  Parliament is normally controlled by the  provisions contained in Part III of the  Constitution. If the legislatures step  beyond the legislative fields assigned to  them, or acting within their respective  fields, they trespass on the fundamental  rights of the citizens in a manner not  justified by the relevant articles dealing  with the said fundamental rights, their  legislative actions are liable to be struck  down by courts in India. Therefore, it is  necessary to remember that though our  legislatures have plenary powers, they  function within the limits prescribed by  the material and relevant provisions of  the Constitution."

The judicial organ of the State has been made the final  arbiter of Constitutional issues and its authority and  jurisdiction in this respect is an important and integral part of  the basic structure of the Constitution of India.  Before coming  in grips with the complex Constitutional questions that have  been raised, we would well remind ourselves, more than we do  everyone else, of the following further observations made at  page 447 :- "\005\005In this connection it is necessary to  remember that the status, dignity and  importance of these two respective  institutions, the legislatures and the  Judicature, are derived primarily from  the status, dignity and importance of the  respective causes that are assigned to  their charge by the Constitution. These  two august bodies as well as the  Executive which is another important  constituent of a democratic State, must  function not in antinomy nor in a spirit of  hostility, but rationally, harmoniously  and in a spirit of understanding within  their respective spheres, for such  harmonious working of the three  constituents of the democratic State  alone will help the peaceful development,  growth and stabilisation of the  democratic way of life in this country."

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The issues involved are required to be examined bearing  in mind the basic ethos of our Constitutional scheme in the  above light. The Constitution of India provides through Chapter II of  Part V for Union Legislature, called the "Parliament".  Parliament consists of, besides the President, two Houses  known respectively as the Council of States (Rajya Sabha) and  the House of the People (Lok Sabha).  Article 80 deals with the  matter of composition of Rajya Sabha.   Article 81, on the  other hand, provides for composition of Lok Sabha.  In terms  of Article 83, Rajya Sabha is a permanent body, not subject to  dissolution, its continuance being ensured by replacements of  one third of the members who retire on the expiration of every  second year.  Lok Sabha, on the other hand, is given a fixed  term of five years, unless sooner dissolved or unless its term is  extended in situation of emergency as provided in the proviso  to sub-rule (2) of Article 83.   In the loose federal structure that India has adopted for  itself, wherein India is an indestructible Union of destructible  units, there is a provision for State Legislature in Chapter III of  Part VI governing the States, almost similar to the set up at  the Centre.   The relations between the Union and the States are  controlled by the provisions contained in Part XI of the  Constitution.  The Constitution permits, through Article 118 and Article  208, the Legislature at the Centre and in the States  respectively, the authority to make rules for regulating their  respective procedure and conduct of business "subject to the  provisions of this Constitution".  Since we are concerned mainly with the Houses of  Parliament in these proceedings, it may be mentioned that  each House in exercise of its powers under Article 118 has  framed detailed rules of procedure which are called "Rules of  Procedure and Conduct of Business in Lok Sabha" and Rules  of Procedure and Conduct of Business in the Council of  States". Conscious of the high status of these bodies, the  Constitution accorded certain powers, privileges and  immunities to the Parliament and State Legislatures and their  respective members. For this purpose, specific provisions were  included in the Constitution in Articles 105.  For the present, it may only be noticed that sub-Article  (1) of Article 105 and Article 194 respectively confers on the  Members of Parliament and the State Legislatures respectively  "freedom of speech" in the Legislature, though "subject to the  provisions" of the Constitution and "subject to the rules and  orders regulating the procedure" of Parliament or of the  Legislatures, as the case may be.   Sub-Article (2) of both the said Articles grants, inter alia,  absolute immunity to members of the Legislatures from "any  proceedings in any Court in respect of anything said or any  vote given" by them in the Legislatures or any Committee  thereof.  Sub-Article (3) of Article 105 and Article 194 declares  that "the powers, privileges and immunities" of each House of  the Legislatures and the members and Committees thereof, "in  other respects" shall be "such as may from time to time be  defined" by the Parliament or the State Legislature, as the case  may be, "by law" and, "until so defined", to be those as were  enjoyed by the said Houses or members of the Committees  thereof immediately before coming into force of the  amendment in 1978.   

Article 122 is of great import in the context of, amongst

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others, Article 105, since it seems to restrict the jurisdiction of  the Courts in relation to "proceedings of Parliament".  It reads  as under:- "122. Courts not to inquire into  proceedings of Parliament.\027(1) The  validity of any proceedings in Parliament  shall not be called in question on the  ground of any alleged irregularity of  procedure. (2) No officer or member of Parliament in  whom powers are vested by or under this  Constitution for regulating procedure or  the conduct of business, or for  maintaining order, in Parliament shall be  subject to the jurisdiction of any court in  respect of the exercise by him of those  powers."

There is a similar provision in relation to State  Legislature. Having given our anxious considerations to the myriad  issues that have been raised on both sides of the divide, we  have found that the primordial questions that need to be  addressed by the Court can be formulated as under :- 1.      Does this Court, within the constitutional scheme, have  the jurisdiction to decide the content and scope of  powers, privileges and immunities of the Legislatures and  its members? 2.      If the first question is answered in the affirmative, can it  be found that the powers and privileges of the  Legislatures in India, in particular with reference to  Article 105, include the power of expulsion of their  members? 3.      In the event of such power of expulsion being found, does  this Court have the jurisdiction to interfere in the  exercise of the said power or privilege conferred on the  Parliament and its members or Committees and, if so, is  this jurisdiction circumscribed by certain limits? In our approach to these issues of great importance, we  have followed the advice of Thomas Huxley in the following  words :- "It is not who is right, but what is right,  that is of importance"

In our quest, again borrowing the words of Thomas  Huxley, we must  "learn what is true in order to do what is  right".

The need, if any, to take up for consideration, the  grievances expressed by the petitioners in relation to the  manner of exercise of the power and privilege asserted by both  Houses of Parliament to expel their respective members would  arise in light of decision on the  two first-mentioned cardinal  questions. Court’s Jurisdiction to decide on the scope of Article  105(3)

       There was virtually a consensus amongst the learned  counsel that it lies within the powers and jurisdiction of this  Court to examine and determine the extent of power and  privileges to find out whether actually power of expulsion is  available under Article 105(3) or not.   Having regard to the delicate balance of power  distributed amongst the three chief organs of the State by the

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Constitution of India and the forceful assertions made  particularly with regard to the limitation on court’s  jurisdiction, we decided not to depend upon mere concession  of the learned counsel as to our jurisdiction. We thought it  prudent to examine it fully even in the context of primary  question about the judicial authority to go into the question of  existence of a particular power or privilege asserted and  claimed under Article 105, so as to reassure ourselves that we  were not in any manner intruding into a zone which is out-of- bounds for us.    Fortunately, the subject at hand is not a virgin territory.   There have been occasions in the past for this court to go into  these issues, though in somewhat different fact situations.   Similarly, we have the benefit of opinion on these questions,  expressed by at least three High Courts, though that happens  to be a divided opinion. As can be seen from the language employed in Article  105, the Parliament is empowered to define, by law, the  powers, privileges and immunities of each House and of their  Members and Committees in respects other than those  specified in the Constitutional provisions.  Though some part  of the arguments advanced on behalf of the petitioners did try  to refer to certain statutory provisions, for example, provisions  contained in Sections 8 to 11 of the Representation of People  Act 1951, as referable to the enabling power given to the  Parliament in the first part of Article 105(3) but for present  purposes, we would assume that Parliament has not yet  exercised the said enabling power in as much as there is no  law enacted till date that can be referred as cataloging the  powers, privileges and immunities of each House of Parliament  and of their members and committees.   This consequence  leads to continuity of the life of the second part of Article  105(3) in as much as that part of the provision was designed  to come to an end as soon as the Parliament defined by law its  powers, privileges and immunities.  Therefore, powers,  privileges and immunities not having been defined, the  question is what are those powers which were enjoyed by  House of Commons at the commencement of our Constitution  as that will determine the powers, privileges and immunities of  both Houses of Indian Parliament.   The history of the subject of Parliamentary privileges  indicates numerous instances where the effort at tracing the  dividing line between the competence of courts and the  exclusive jurisdiction of the legislature threw up complex  Constitutional questions giving rise to divergent opinions and  decisions even in England, more importantly, in connection  with the House of Commons.  These questions included the  abstract question whether the law of Parliament in such  regard was a "particular law" or "part of the common law" in  its wide and extended sense and the practical question  whether the House of Commons was to be the sole judge of a  matter of privilege claimed by it even when the rights of third  parties were involved or whether in such cases the issues  could be decided in the courts.  The next question arising from  the last mentioned issue naturally concerned the extent of the  power of the judges that is to say if they were bound to accept  and apply the parliamentary interpretation of the law or were  free to form their own view in such regard. The dust has since settled even in England which  jurisdiction since concedes the jurisdiction of the court to  decide all questions of privilege, except those concerning  exclusive jurisdiction of the legislative chamber over its own  internal proceedings. The works of English and Commonwealth authors have  always been treated as the most authoritative references for

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determining the source of a Privilege or power exercised by the  House of Commons. They include Halsbury’s Laws of England,  Maitland, Wade and Phillips, Keir & Lawson, Sir Barnett  Cocks, Ridges on Constitutional Law, and Sir William Anson’s  "The Law and Custom of the Constitution". Sir Thomas  Erskine May was a clerk of the House of Commons (1871- 1886).  His work "Parliamentary Practice", hereinafter referred  to as "May’s Parliamentary Practice", is universally regarded  as an authoritative exposition of this branch of law.  The following extract from page 183 in chapter 11  "Jurisdiction of Courts of Law in Matters of Privilege" as  appearing in Erskine May’s Parliamentary Practice, 20th  Edition reflects the prevalent law in United Kingdom:- "The problem thus became one of  reconciling the law of privilege with the  general law.  The solution gradually  marked out by the courts is to insist on  their right in principle to decide all  questions of privilege arising in litigation  before them, with certain large  exceptions in favour of parliamentary  jurisdiction.  Two of these, which are  supported by a great weight of  authority, are the exclusive jurisdiction  of each House over its own internal  proceedings, and the right of either  House to commit and punish for  contempt. While it cannot be claimed  that either House to commit or formally  acquiesced in this assumption of  jurisdiction by the courts, the absence  of any conflict for over a century may  indicate a certain measure of tacit  acceptance."

The learned counsel for all sides have referred to  Bradlaugh v. Gosset [1884 12 QBD 271].  Charles  Bradlaugh, the plaintiff in that case before Queen’s Bench  Division had been elected a Burgess to serve in the House of  Commons and was entitled to take oath by law prescribed to  be taken by the members of the said chamber of legislature  and to sit and vote in the House as an elected representative.   This resolution was explained in due course by Speaker to  mean that the exclusion of Bradlaugh from the House would  continue "until he should engage not to attempt to take the  oath in disregard of the resolution of the House now in force".   The issues that were raised before the court included the  question whether the House of Commons had a right to pass  such a resolution forbidding the member of the House within  the walls of the House itself from doing something which by  the law of the land he had a right to do so and whether the  court could inquire into the said right and allow an action to  be maintained by a member of the House.  Reliance has been  placed on certain observations made in the judgment that was  rendered in the said fact situation.  At page 275,  Lord  Coleridge, C.J. observed as under:- "Alongside, however, of these  propositions, for the soundness of which I  should be prepared most earnestly to  contend, there is another proposition  equally true, equally well established,  which seems to me decisive of the case  before us.    What is said or done within  the walls of Parliament cannot be

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inquired into in a court of law.  On this  point all the judges in the two great cases  which exhaust the learning on the  subject \026 Burdett v. Abbott [14 East, 1,  148] and Stockdale v. Hansard [9 Ad. &  E. 1.]; - are agreed, and are emphatic.   The jurisdiction of the House over their  own members, their right to impose  discipline within their walls, is absolute  and exclusive.  To use the words of Lord  Ellenborough, "They would sink into utter  contempt and inefficiency without it." [14  East, at p. 152]"

The learned counsel then referred to the Privy Council  decision in Richard William Prebble v. Television New  Zealand Ltd. [1994 (S) WLR 970].  It arose out of a  defamation action by a former Minister of the Government of  New Zealand where proceedings in Parliament were  questioned. The issue of infringement of parliamentary  privilege was raised in the context of Article 9 of the Bill of  Rights 1689 which declared that the freedom of speech and  debates or proceedings in Parliament "ought not to be  impeached or questioned in any court or place out of  Parlyament".  The Privy Council observed as under at page  976:- "In addition to article 9 itself, there is a  long line of authority which supports a  wider principle, of which article 9 is  merely one manifestation, viz. that the  courts and Parliament are both astute to  recognize their respective constitutional  roles. So far as the courts are concerned  they will not allow any challenge to be  made to what is said or done within the  walls of Parliament in performance of its  legislative functions and protect on of its  established privileges.  Burdett v. Abbot  (1811) 14 East 1; Stockdale v. Hansard  (1839) 9 Ad. & EI. 1; Bradlaugh v.  Gossett (1884 12 QBD 271; Pickin v.  British Railways Board [(1974)  AC 765;  Pepper v. Hart 1993] AC 593.  As  Blackstone said in his Commentaries on  the Laws of England, 17th ed. (1830),  vol.1, p. 163: "the whole of the law and custom of  Parliament has its original from this  one maxim, ’that whatever matter  arises concerning either House of  Parliament, ought to be examined,  discussed, and adjudged in that  House to which it relates, and not  elsewhere.’"

Further, the views formulated in Prebble v. Television  New Zealand Ltd. were expressed at page 980 thus: "Parties to litigation, by whomsoever  commenced, cannot bring into question  anything said or done in the House by  suggesting (whether by direct evidence,  cross-examination, inference or  submission) that the actions or words  were inspired by in proper motives or

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were untrue or misleading.  Such matters  lie entirely within the jurisdiction of the  House, subject to any statutory exception  such as exists in New Zealand in relation  to perjury under Section 108 of the  Crimes Act 1961."

The learned counsel would then refer to the law that has  been evolved in India, the case of M.S.M. Sharma v. Sri  Krishna Sinha [1959 Supp (1) SCR 806], hereinafter  referred to as case of Pandit Sharma (I), being perhaps the  first in a series of such cases on the subject. Pandit Sharma, the petitioner in that case was editor of  an English Daily Newspaper "Searchlight" of Patna.  He invited  the wrath of the legislative assembly of Bihar by publishing  extracts from proceedings of the legislative assembly including  certain parts which had been ordered to be expunged by the  Speaker.  In this context, the Speaker had referred the matter  to the Privileges Committee of the assembly which in turn  issued a show cause notice to him.  Pandit Sharma brought  writ petition in this court under Article 32 of the Constitution  of India alleging that the proceedings initiated by the  legislative assembly had violated his fundamental right of  speech and expression under Article 19 (1) (a) as also the  fundamental right of protection of his personal liberty under  Article 21.  The case was decided by a Constitution Bench (five  Judges), with main focus on two principal points; namely, the  availability of a privilege under Article 194(3) of the  Constitution to the House of a legislature in India to prohibit  entirely the publication of the publicly seen and heard  proceedings that took place in the House or even to prohibit  the publication of such part of the proceedings as had been  directed to be expunged and as to whether the privilege of the  legislative chamber under Article 194(3) prevailed over the  fundamental right of a citizen under Article 19 (1) (a).   Noticeably, no specific objection as to the jurisdiction of the  court in examining the issue of existence and availability of  the particular privilege was raised at any stage.   It may be mentioned here that the writ petition of Pandit  Sharma was dismissed on the basis of majority view, inter alia,  holding that the legislatures in India were vested with the  power or privilege of prohibiting the publication of debates or  proceedings that took place in the House, of even a true and  faithful report, as indeed of an inaccurate or garbled version  thereof.  It was further held that the powers, privileges and  immunities available in terms of Articles 105(3) and 194(3)  stood in the same supreme position as the provisions of Part  III of the Constitution and could not be affected by Article 13  and, therefore, the principle of harmonious construction  required to be adopted. The court concluded that the  fundamental right of free speech and expression under Article  19 (1)(a) being general in nature must yield to Article 194(1)  and the latter part of Article 194(3) which are special  provisions. The challenge to the proceedings under Article  194(3) on the basis of Article 21 was also repelled on the  ground of it being "in accordance with the procedure  established by law" in as much as the rules framed by the  legislative assembly under Article 208 laid down the  procedure. The case of Pandit Sharma did not end there.  Subsequently, the legislative assembly of Bihar came to be  prorogued several times and the committee of privileges was  also reconstituted.  This led to a fresh notice being issued to  Pandit Sharma in the wake of which he brought another writ  petition under Article 32 of the Constitution, substantially

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raising the same questions and contentions as had been  agitated in the earlier proceedings by him before this court.  This writ petition was dismissed by the Constitution Bench  (eight Judges).  The judgment is reported as M.S.M. Sharma  v. Shree Krishna Sinha [(1961) 1 SCR 96], hereinafter  referred to as case of Pandit Sharma (II). In Para 10 of the Judgment, this Court observed thus:- "10. \005\005\005. It was contended that the  procedure adopted inside the House of  the Legislature was not regular and not  strictly in accordance with law. There are  two answers to this contention, firstly,  that according to the previous decision of  this Court, the petitioner has not the  fundamental right claimed by him. He is,  therefore, out of Court. Secondly, the  validity of the proceedings inside the  Legislature of a State cannot be called in  question on the allegation that the  procedure laid down by the law had not  been strictly followed. Article 212 of the  Constitution is a complete answer to this  part of the contention raised on behalf of  the petitioner. No Court can go into those  questions which are within the special  jurisdiction of the Legislature itself,  which has the power to conduct its own  business. Possibly, a third answer to this  part of the contention raised on behalf of  the petitioner is that it is yet premature  to consider the question of procedure as  the Committee is yet to conclude its  proceedings. It must also be observed  that once it has been held that the  Legislature has the jurisdiction to control  the publication of its proceedings and to  go into the question whether there has  been any breach of its privileges, the  Legislature is vested with complete  jurisdiction to carry on its proceedings in  accordance with its rules of business.  Even though it may not have strictly  complied with the requirements of the  procedural law laid down for conducting  its business, that cannot be a ground for  interference by this Court under Article  32 of the Constitution. Courts have  always recognised the basic difference  between complete want of jurisdiction  and improper or irregular exercise of  jurisdiction. Mere non- compliance with  rules of procedure cannot be a ground for  issuing a writ under Article 32 of the  Constitution vide Janardan Reddy v.  State of Hyderabad [1951 SCR 344]."

By far, the advisory opinion given by a Constitution  Bench comprising of seven Judges of this court in UP  Assembly case is the most elaborate discourse on the subject  of powers, privileges and immunities of the legislatures under  the Constitution of India.  The matter had arisen out of a  Reference by the President of India under Article 143(1) of the  Constitution seeking opinion of this court on certain issues,  the genesis of which was traceable to certain unfortunate  developments concerning the legislative assembly of the State

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of Uttar Pradesh and the Lucknow Bench of the High Court at  Allahabad.  The legislative assembly of Uttar Pradesh had  committed one Keshav Singh, who was not one of its  members, to prison for its contempt.  The warrant of  committal did not contain the facts constituting the alleged  contempt.  Keshav Singh moved a petition, inter alia, under  Article 226 of the Constitution through his advocate  challenging his committal as being in breach of his  fundamental rights.  A division bench of the High Court sitting  at Lucknow gave notice to the Government counsel and on the  appointed day proceeded to hear the application for bail. At  that stage, the Government Counsel did not appear.  The  division bench heard the application and ordered release of  Keshav Singh on interim bail pending decision on his writ  petition.  The legislative assembly found that Keshav Singh  and his advocate in moving the High court and the two Judges  of the High Court in entertaining the petition and granting bail  had committed contempt of the legislative assembly. The  assembly passed a resolution that all of them, including the  two High Court Judges, be produced before it in custody. The  High Court Judges and the advocate in question thereupon  filed writ petitions before the High Court at Allahabad.  A full  bench of the High Court admitted the writ petitions and  ordered the stay of execution of the assembly’s resolution  against them. Subsequently, the legislative assembly passed a  clarificatory resolution modifying its earlier stand and asking  the Judges and the advocate to appear before the House and  offer their explanation. It was against this backdrop that the  President made a reference under Article 143(1) of the  Constitution seeking opinion mainly as to the Constitutional  relationship between the High Court and the State Legislature  in matters of the powers and privileges of the latter. The  contours of the main controversy were summarized by this  court at page 439 in the report in the following words:- "27. \005\005\005\005\005. Is the House the sole  and exclusive judge of the issue as to  whether its contempt has been  committed where the alleged contempt  has taken place outside the four walls of  the House? Is the House the sole and  exclusive judge of the punishment which  should be imposed on the party whom it  has found to be guilty of its contempt?  And, if in enforcement of its decision the  House issues a general or unspeaking  warrant, is the High Court entitled to  entertain a habeas corpus petition  challenging the validity of the detention of  the person sentenced by the  House?..........."  

It is clear from the opinion rendered in UP Assembly  case that the State legislature, though participating in the  hearing, expressed reservations as to the jurisdiction of this  court in any manner in respect of the area of controversy  covered by the questions, insisting that "the question about  the existence and extent of the powers, privileges and  immunities of the House, as well as the question about the  exercise of the powers and privileges were entirely and  exclusively within the jurisdiction of the House; and whatever  this Court may say will not preclude the House from deciding  for itself the points referred to us under this Reference",  referring in this context, inter alia to the fact that there was no  lis before the court which was therefore not exercising "its  judicial function" while dealing with a reference under Article

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143 (1). After examining the issue of absolute immunity of the  proceedings of the House in such matters from challenge in  the court, in light of various Constitutional provisions and  tracing the development of the law on the subject in England  with the help, amongst others, of May’s Parliamentary  Practice, this Court summarized the legal position as obtaining  in United Kingdom, at page 467, as under:-

"83. In regard to punishment for  contempt, a similar process of give and  take by convention has been in operation  and gradually a large area of agreement  has, in practice, been evolved.  Theoretically, the House of Commons  claims that its admitted right to  adjudicate on breaches of privilege  implies in theory the right to determine  the existence and extent of the privileges  themselves. It has never expressly  abandoned this claim. On the other  hand, the courts regard the privileges of  Parliament as part of the law of the land,  of which they are bound to take judicial  notice. They consider it their duty to  decide any question of privilege arising  directly or indirectly in a case which falls  within their jurisdiction, and to decide it  according to their own interpretation of  the law [May’s Parliamentary Practice, p.  172]. Naturally, as a result of this  dualism the decisions of the courts are  not accepted as binding by the House in  matters of privilege, nor the decisions of  the House by the courts; and as May  points out, on the theoretical plane, the  old dualism remains unresolved. In  practice, however, "there is much more  agreement on the nature and principles  of privilege than the deadlock on the  question of jurisdiction would lead one to  expect" and May describes these general  conclusions in the following words: (1)     It seems to be recognized that, for  the purpose of adjudicating on  questions of privilege, neither House  is by itself entitled to claim the  supermacy over the ordinary courts  of justice which was enjoyed by the  undivided High Court of Parliament.  The supremacy of Parliament,  consisting of the King and the two  Houses, is a legislative supremacy  which has nothing to do with the  privilege jurisdiction of either House  acting singly. (2)     It is admitted by both Houses that,  since either House can by itself add  to the law, neither House can by its  own declaration create a new  privilege. This implies that privilege  is objective and its extent  ascertainable, and reinforces the  doctrine that it is known by the  courts.

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On the other hand, the courts  admit: (3) That the control of each House over its  internal proceedings is absolute and  cannot be interfered with by the  courts. (4) That a committal for contempt by  either House is in practice within its  exclusive jurisdiction, since the  facts constituting the alleged  contempt need not be stated on the  warrant of committal [May’s  Parliamentary Practice, p. 173].

84. It is a tribute to the remarkable  English genius for finding pragmatic ad  hoc solutions to problems which appear  to be irreconcilable by adopting the  conventional method of give and take.  The result of this process has been, in the  words of May, that the House of  Commons has not for a hundred years  refused to submit its privileges to the  decision of the courts, and so, it may be  said to have given practical recognition to  the jurisdiction of the courts over the  existence and extent of its privileges. On  the other hand, the courts have always,  at any rate in the last resort, refused to  interfere in the application by the House  of any of its recognized privileges [May’s  Parliamentary Practice, pp. 173-74]. That  broadly stated, is the position of powers  and privileges claimed by the House of  Commons."

Sarkar J. in his separate judgment in the same case was  ad idem with the majority opinion in this context.  Rejecting  the contentions based on the observations in Bradlaugh, he  observed at page 508 as under:- "This passage should suffice to illustrate  the nature of the dispute. It will not be  profitable at all, and indeed I think it will  be ’mischievous’, to enter upon a  discussion of that dispute for it will only  serve to make it turbid, by raking up  impurities which have settled down, a  stream which has run clear now for  years. Furthermore that dispute can  never arise in this country for here it is  undoubtedly for the courts to interpret  the Constitution and, therefore, Article  194(3). It follows that when a question  arises in this country under that article  as to whether the House of Commons  possessed a particular privilege at the  commencement of the Constitution, that  question must be settled, and settled  only, by the Courts of law. There is no  scope of the dreaded "dualism" appearing  here, that is, courts entering into a  controversy with a House of a legislature  as to what its privileges are. I think what  I have said should suffice to explain the  nature of the privileges for the purposes

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of the present reference and I will now  proceed to discuss the privileges of the  Assembly that are in question in this  case, using that word in the sense of  rights ancillary to the main function of  the legislature."  (Emphasis supplied)

His conclusions to above effect were steeled in view of the  legal position in England, as is clear from the observations at  page 522 of his Judgment, which read as under:- "All privileges of the House of Commons  are based on law. That law is known as  Lex Parliamenti. Hence privileges are  matters which the House of Commons  possesses as of right. In Stockdale v.  Hansard [112 E. R. 1112] all the Judges  held that the rights of the House of  Commons are based on lex Parliamenti  and that law like any other law, is a law  of the land which the courts are entitled  to administer."

The case State of Karnataka v. Union of India [(1977)  4 SCC 608] decided by a Constitution Bench (seven Judges) of  this court finally clinched the issue beyond the pale of any  doubts.  The case had arisen against the backdrop of  appointment by the Central Government of a Commission of  Inquiry against the then Chief Minister of Karnataka.  The  State of Karnataka filed a suit in this court, inter alia, for a  declaration that the appointment of the Commission was  illegal, in as much as the terms of reference of the Inquiry  Commission covered matters falling exclusively within the  sphere of the State’s legislative and executive power on which  basis, amongst others, it was contended that the federal  structure implicit and accepted as an inviolable basic feature  of the Constitution was being abridged.  Some arguments in  the context of this controversy were founded on the powers  and privileges of the legislature of the State under Article 194  of the Constitution. Examining these arguments, Beg CJ. in  his judgment observed as under:- "63. Now, what learned Counsel for the  plaintiff seemed to suggest was that  Ministers, answerable to a Legislature  were governed by a separate law which  exempted them from liabilities under the  ordinary law. This was never the Law in  England. And, it is not so here. Our  Constitution leaves no scope for such  arguments, based on a confusion  concerning the "powers" and "privileges"  of the House of Commons mentioned in  Articles 105(3) and 194(3). Our  Constitution vests only legislative power  in Parliament as well as in the State  Legislatures. A House of Parliament or  State Legislature cannot try anyone or  any case directly, as a Court of Justice  can, but it can proceed quasi-judicially in  cases of contempts of its authority and  take up motions concerning its  "privileges" and "immunities" because, in  doing so, it only seeks removal of  obstructions to the due performance of  its legislative functions. But, if any

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question of jurisdiction arises as to  whether a matter falls here or not, it has  to be decided by the ordinary courts in  appropriate proceedings."  (Emphasis supplied)

In view of the above clear enunciation of law by  Constitutional Benches of this court in case after case, there  ought not be any doubt left that whenever Parliament, or for  that matter any State legislature, claims any power or privilege  in terms of the provisions contained in Article 105(3), or Article  194(3) as the case may be, it is the court which has the  authority and the jurisdiction to examine, on grievance being  brought before it, to find out if the particular power or privilege  that has been claimed or asserted by the legislature is one that  was contemplated by the said constitutional provisions or, to  put it simply, if it was such a power or privilege as can be said  to have been vested in the House of Commons of the  Parliament of United Kingdom as on the date of  commencement of the Constitution of India so as to become  available to the Indian legislatures. Historical perspective from England To find out the basis of House of Commons possessing  the right of expulsion of its members, it is necessary to  examine the historical perspective of preliminary powers and  privileges and immunities.  For finding out the roots of powers,  privileges and immunities of House of Commons, it is  necessary to refer to the views of constitutional authors  mentioned hereinbefore. The term ’privilege in law’ is defined as immunity or an  exemption from some duty, burden, attendance or liability  conferred by special grant in derogation of common right.  The  term is derived from an expression ’privilegium’ which means  a law specially passed in favour of or against a particular  person. May, in his "Parliamentary Practice", has defined  parliamentary privilege as "the sum of the peculiar rights  enjoyed by each House collectively as a constituent part of the  High Court of Parliament, and by members of each House  individually, without which they could not discharge their  functions, and which exceed those possessed by other bodies  of individuals".  Thus, privilege, though not part of the law of  the land, is to a certain extent an exemption from the ordinary  law.  Rutledge, in his "Procedure of the House of Commons"  [Volume I, page 46], defined privileges as "the sum of the  fundamental rights of the House and of its individual members  as against the prerogatives of the Crown, the authority of the  courts of law, and the special rights of the House of Lords". The origin of parliamentary privileges is inextricably  intertwined with the specific history of the institution of  Parliament in England, and more specifically with the battle  between Parliament and the English Monarch for political  control in the 17th century.  An understanding of the manner  in which the concept of parliamentary privilege developed,  therefore, requires a sound understanding of the institutional  history of Parliament in the United Kingdom. Parliament in the United Kingdom emerged in the  Thirteenth Century. By 14th century, Parliament had begun to  exercise a small measure of judicial power.  It took on the role  of a court in relation to treason and related matters.  In 1376,  Parliament, specifically the Commons, had taken upon itself  the power of impeachment of the King’s servants. Thus, the  lords could hear appeals of treason and Bills of Attainder  where the accuser was the King. The long struggle of the

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British subjects to bring about a parliamentary democracy  involved royal concessions, people’s resistance, claims against  Crown prerogatives, execution of Monarchs and restoration of  Parliament, struggles, advances and retreats, and it is through  these turbulent times that the House of Commons emerged as  a representative form of government. The origin of some of the Parliamentary privileges  preceded Parliament itself and was part of the King’s peace,  common to all his subjects, but in special measure shared by  his servants.  The privilege of freedom of speech eventually  came to be statutorily recognized by Article 9 of the Bill of  Rights Act, 1688. May [23rd edn., pp.78, 79, 83, 89, 90] describes the  historical development of privileges as follows:- "At the commencement of every  Parliament it has been the custom for the  Speaker, in the name, and on the behalf  of the Commons, to lay claim by humble  petition to their ancient and undoubted  rights and privileges; particularly to  freedom of speech in debate, freedom  from arrest, freedom of access to Her  Majesty whenever occasion shall require;  and that the most favourable  construction should be placed upon all  their proceedings\005\005..

Freedom of Speech - The first claim in the  Speaker’s petition is for freedom of  speech in debate.  By the latter part of  the fifteenth century, the Commons of  England seems to have enjoyed an  undefined right to freedom of speech, as a  matter or tradition rather than by virtue  of a privilege sought and obtained\005\005

FREEDOM FROM ARREST \026 The second  of the Speaker’s customary petitions on  behalf of the Commons at the beginning  of a Parliament is for freedom from arrest.   The development of this privilege is in  some ways linked to that of other  privileges.  Arrest was frequently the  consequence of the unsuccessful  assertion of freedom of speech, for  example\005\005.

FREEDOM OF ACCESS \026 The third of the  Speaker’s petitions is for freedom of  access to Her Majesty whenever occasion  shall require. This claim is medieval  (probably fourteenth century) in origin,  and in an earlier form seems to have been  sought in respect of the Speaker himself  and to have encompassed also access to  the Upper House\005\005..

FAVOURABLE CONSTRUCTION \026 The  final petition which the speaker makes is  that the most favourable construction  should be placed upon all the House’s  proceedings\005\005\005

PRIVILEGE WITH RESPECT TO THE  CONSTITUTION OF THE HOUSE \026 It is a

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privilege of the House of Commons to  provide for its own proper constitution as  established by law. The origins of this  privilege are to be found in the sixteenth  century."  

In the UP Assembly Case, while dealing with questions  relating to Powers, Privileges and Immunities of State  Legislatures, it was observed as under:- "69\005\005\005\005\005 Parliamentary privilege,  according to May, is the sum of the  peculiar rights enjoyed by each House  collectively as a constituent part of the  High Court of Parliament, and by  members of each House individually,  without which they could not discharge  their functions, and which exceed those  possessed by other bodies or individuals.  Thus privilege, though part of the law of  the land, is to a certain extent an  exemption from the ordinary law. The  particular privileges of the House of  Commons have been defined as "the sum  of the fundamental rights of the House  and of its individual Members as against  the prerogatives of the Crown, the  authority of the ordinary courts of law  and the special rights of the House of  Lords". There is a distinction between  privilege and function, though it is not  always apparent. On the whole, however,  it is more convenient to reserve the 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 necessity 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 [May’s Parliamentary Practice, pp.  42-43]."

According to May, origin of the modern Parliament in  England consisted in its judicial functions. It was Maitland  who was the first to point out in his introduction to the  Parliament Roll of 1305 that Parliament at that time was the  King’s "Great Court" and thus, inter alia, the highest Court of  royal justice.  It is now generally accepted that a strong  judicial streak in the character of the earliest Parliament was  noticeable throughout the earlier period of English history,  reflected by the fact that dispensation of justice was one of its  chief functions in the eyes of the subjects of the realm, aside  from the political and economic business. Out of the two chambers of Parliament of United  Kingdom, the House of Lords has continued till the present  times as the Court of Judicature, as part of which function it  has the power to sit as a Court during prorogation and

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dissolution. The final appellate jurisdiction vests in the Lords  and, in matters of impeachment, the Lords are the sole judges  of the crime in proceedings that involve the other chamber, the  House of Commons, as the accusers or advocates. While the House of Lords would claim its powers and  privileges on the basis of theory of inheritance and Divine  Right of Kings, the House of Commons was constrained to  wage a fierce struggle against the prerogatives of the Crown  and of the House of Lords to assert and claim its rightful  place.  It was almost a fight for its existence in which the  House of Commons was pitted against not only the Crown and  the House of Lords, but also the judicature which was  regarded as a creature of the King and which wing was  subordinate to the House of Lords that happened to be the  main opponent of the House of Commons.   The dust raised by the bitter struggle waged by the  House of Commons to assert its privileges finally settled when  equilibrium was reached in the 19th century with limits of  privileges being prescribed and accepted by Parliament, the  Crown and the courts in England.  The position that emerged  against this backdrop has been noticed by this court in the  following words in the UP Assembly Case:- "The two Houses are thus of equal  authority in the administration of a  common body of privileges. Each House,  as a constituent part of Parliament,  exercised its own privileges independently  of the other. They are enjoyed, however,  not by any separate right peculiar to  each, but solely by virtue of the law and  custom of Parliament. Generally  speaking, all privileges properly so called,  appertain equally to both Houses. They  are declared and expounded by each  House; and breaches of privilege are  adjudged and censured by each; but  essentially, it is still the law of Parliament  that is thus administered. It is significant  that although either House may expound  the law of Parliament, and vindicate its  own privileges, it is agreed that no new  privilege can be created. This position  emerged as a result of the historic  resolution passed by the House of Lords  in 1704. This resolution declared "that  neither House of Parliament have power,  by any vote or declaration, to create to  themselves new privileges, not warranted  by the known laws and customs of  Parliament". This resolution was  communicated by the House of Lords to  Commons and assented to by them  [May’s Parliamentary Practice, p.47].  Thus, there can be no doubt that by its  resolutions, the House of Commons  cannot add to the list of its privileges and  powers."

       The resolution of 1704, mentioned in the passage  extracted above, had been adopted by the House of Lords in  answer to an earlier resolution passed by the House of  Commons declaring its intent to treat the conduct of any  person in moving the court for relief in matters mentioned by  the resolution of the House of Commons as amounting to its  contempt.

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The main privileges which are claimed by the House of  Commons were noticed at length at page 462 of the judgment  in the UP Assembly Case, as under:- "72.\005\005\005..Freedom of speech is a  privilege essential to every free council or  legislature, and that is claimed by both  the Houses as a basic privilege. This  privilege was from 1541 included by  established practice in the petition of the  Commons to the King at the  commencement of the Parliament. It is  remarkable that notwithstanding the  repeated recognition of this privilege, the  Crown and the Commons were not  always agreed upon its limits. This  privilege received final statutory  recognition after the Revolution of 1688.  By the 9th Article of the Bill of Rights, it  was declared "that the freedom of speech,  and debates or proceedings in  Parliament, ought not to be impeached or  questioned in any court or place out of  Parliament [May’s Parliamentary Practice,  p. 52]".

73. Amongst the other privileges are: the  right to exclude strangers, the right to  control publication of debates and  proceedings, the right to exclusive  cognizance of proceedings in Parliament,  the right of each House to be the sole  judge of the lawfulness of its own  proceedings, and the right implied to  punish its own Members for their  conduct in Parliament [ibid, p. 52-53].

74. Besides these privileges, both Houses  of Parliament were possessed of the  privilege of freedom from arrest or  molestation, and from being impleaded,  which was claimed by the Commons on  ground of prescription\005\005\005\005"

The privilege of freedom of speech under Article 9 of the  Bill of Rights includes the freedom of the member to state  whatever he thinks fit in debate, howsoever offensive it may be  to the feelings, or injurious to the character, of individuals. He  is protected by his privilege from any action for libel, as well as  from any question or molestation [May’s Parliamentary  Practice, 23rd edn., pp 96-97]. The privilege of freedom from  arrest has never been allowed to interfere with the  administration of criminal justice or emergency legislation. In early days of its struggle the House of Commons would  assert a claim to all kinds of privileges for itself and its  members but in the course of time many of such privileges  either fell into disuse or faded out of existence or came to be  controlled by legislation.  Examples in this context can be  given of the privilege of freedom from being impleaded,  limitation put by the Parliamentary Privilege Act, 1770 on the  freedom from arrest and the privilege of exemption from jury  service.  What is important for purposes at hand is that the  major privileges properly described as privileges essential for  the efficient functioning of the House still continue in force. As per May’s Parliamentary Practice [23rd edn., pp. 128]  contempt came to be defined as "any act or omission which

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obstructs or impedes either House of Parliament in the  performance of its functions or which obstructs or impedes  any member or officer of such House in the discharge of his  duty, or which has a tendency, directly or indirectly, to  produce such results even though there is no precedent of the  offence". Power to punish and commit for contempt is one of the  privileges asserted by both Houses of Parliament in United  Kingdom. In the context of power to punish for contempt, this  court found in the UP Assembly Case (at page 461) as under:- "\005\005\005\005..Since the decision of the Privy  Council in Kielley v. Carson [4 Moore P.C.  63] it has been held that this power is  inherent in the House of Lords and the  House of Commons, not as a body with  legislative functions, but as a descendant  of the High Court of Parliament and by  virtue of the lex et consuetudo parliamenti  [May’s Parliamentary Practice, p.44].  Historically, as originally the weaker  body, the Commons had a fiercer and  more prolonged struggle for the assertion  of their own privileges, not only against  the Crown and the courts, but also  against the Lords. Thus the concept of  privilege which originated in the special  protection against the King began to be  claimed by the Commons as customary  rights, and some of these claims in the  course of repeated efforts to assert them  hardened into legally recognised  "privileges".

As has been noticed earlier, the historic origin of the  doctrine of privileges of the legislature in England is founded  on its judicial functions. The House of Lords has always  claimed itself to be a Court of Record and as such having the  inherent authority and power not only to imprison but also to  impose fines in matters of contempt. But then, its position as  a Court of Record does not inure, according to Lord Kenyon,  "when exercising a legislative capacity". According to May’s  Parliamentary practice, the House of Commons at one point of  time in the history had also claimed to be a Court of Record,  but this position has never been finally determined.  Be that  as it may, as observed in the UP Assembly Case (at pp. 465- 466), on the authority of May’s Parliamentary Practice, the  genesis of the power of commitment, "the key stone of  Parliamentary privileges", as possessed by the House of  Commons, arises out of "the medieval inability to conceive of a  constitutional authority otherwise than as in some sense a  court of justice". The medieval concept of Parliament in England primarily  as a court of justice, the ’High Court of Parliament’ gave rise to  the firm belief that in order to defend the dignity of Parliament  against disrespect and affronts, there must vest in it a power  to commit, without which the privileges of Parliament would  not exist. On the penal jurisdiction of the House arising from  this, May in his "Parliamentary Practice" [23rd edn. pp. 91-92]  would observe as follows:- "The Lords derived an independent power  to punish from their original membership  of the Curia Regis. Immemorial  constitutional antiquity was not similarly  available to the Commons, and indeed its  possession of penal jurisdiction was

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challenged on this ground as late as the  nineteenth century, and has been  defended by arguments which confused  legislative with judicial jurisdiction. The  difficulties the Commons experienced in  proving its case to be a court of record  (see p 161) \026 an issue never determined  at law \026 were connected with these  problems. Yet whatever the legal or  constitutional niceties, in practice the  House on many occasions in the  sixteenth and seventeenth centuries  exercised its power to impose fines (see p  161) and imprison offenders. These  offenders might include Members of the  House itself or non-members, the latter  comprising sheriffs, magistrates and even  judges of the superior courts."

Almost to ensure that there be not any doubts  entertained in this behalf in any quarter, while asserting its  right to commit offenders on the same terms as the House of  Lords, it was said in the House of Commons in 1593 as  under:- "This court for its dignity and highness  hath privilege, as all other courts have.   And, as it is above all other courts, so it  hath privilege above all other courts; and  as it hath privilege and jurisdiction too,  so hath it also Coercion and Compulsion;  otherwise the jurisdiction is nothing in a  court, if it hath no Coercion."

       The House of Lords would eventually concede this power  in favour of House of Commons at the conference between the  two Houses as noticed in the case of Ashby vs. White [L.J.  (1701-05), 714]. This has ever since been consistently  recognized even by the courts of law in England.  The origin of  this power of commitment for contempt, judicial in its nature,  is thus traceable to the conception of Parliament as primarily  a court of justice \026the "High Court of Parliament".         In matters concerning import of powers and privileges of  the House of Commons unto the legislature in India, while  examining the issue, albeit from the limited concern of the  availability to State legislature under Article 194(3) of the  power of commitment for contempt, this court in the UP  Assembly Case had administered a note of caution that must  hold good even for purposes at hand. At page 591 of the  judgment, it was observed thus:-

"121. In this connection, it is essential to  bear in mind the fact that the status, of a  superior Court of Record which was  accorded to the House of Commons, is  based on historical facts to which we  have already referred. It is a fact of  English history that the Parliament was  discharging judicial functions in its early  career. It is a fact of both historical and  constitutional history in England that the  House of Lords still continues to be the  highest Court of law in the country. It is a  fact of constitutional history even today  that both the Houses possess powers of  impeachment and attainder. It is obvious,

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we think, that these historical facts  cannot be introduced in India by any  legal fiction. Appropriate legislative  provisions do occasionally introduce legal  fictions, but there is a limit to the power  of law to introduce such fictions. Law can  introduce fictions as to legal rights and  obligations and as to the retrospective  operation of provisions made in that  behalf, but legal fiction can hardly  introduce historical facts from one  country to another."  (Emphasis supplied)

In the UP Assembly Case, it was settled by this court  that a broad claim that all the powers enjoyed by the House of  Commons at the commencement of the Constitution of India  vest in an Indian legislature cannot be accepted in its entirety  because there are some powers which cannot obviously be so  claimed.  In this context, the following observations appearing  at page 448 of the judgment should suffice:- "\005\005\005\005.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 Eskine May’s  Parliamentary Practice (16th ed.) p.86]. It  is hardly necessary to point out that the  House cannot claim this privilege.  Similarly, the privilege to pass acts of  attainder and impeachments cannot be  claimed by the House. The House of  Commons also claims the privilege in  regard to its own Constitution. This  privilege is expressed 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 [ibid, 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."

The historical background of parliamentary privileges in  India is to be understood with reference to history of England  and the Constitutional history of the Constitution of India.

Indian Constitutional History

The East India Company Act, 1784 formed the basis of  the Indian Constitution till 1858.  It created Commissioners  for the affairs of India to be appointed at home by the King.   This was followed by the Charter Act, 1833 that provided for a

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legislative authority. In this dispensation, the meetings of the  Governor-General’s Council for law-making were distinguished  from the meetings of the Council for discharging other, i.e.,  executive functions. Macaulay, as Law Member of the  Governor General Council, against the backdrop of the  insistence by the Executive Councilor of the Governor  General’s Council that all the drafts of laws should be fully  considered by the Executive Council before they were laid  before the Legislative council for final passage, in his speech of  13th June, 1835, described the deliberative chamber as the  "supreme Legislative Council", and said "when the Parliament  gave us the power of legislating it gave us also, by necessary  implication, all the powers without which it is impossible to  legislate well", referring in this context particularly to power  "to correspond directly with the subordinate Governments";  "directly call for information from any public functionary"; and  "require the attendance of the military or financial secretary".  An expansion of the Legislative Council of India was provided  by the Charter Act of 1853, followed by certain further  additions by the Acts of 1854 and 1861.  The period 1915-1950 indeed marks a definite advance in  the history of the development of parliamentary privilege in  India. By the Government of India Act 1915, the entire  position of Parliamentary privilege that obtained before that  time was consolidated. The Government of India Act, 1915,  provided in Section 63 that the Indian Legislature shall consist  of the Governor-General and "two chambers, namely, the  Council of State and the Legislative Assembly".   Section 67 of the Act related to the business and  proceedings of the Indian Legislature.  Sub-Section (1) enabled  provision to be made by rules, inter alia, "for regulating the  course of business and the preservation of order in the  chambers of the Indian legislature"; "as to the persons to  preside at the meetings of the Legislative Assembly in the  absence of the president and the deputy president"; for  "quorum"; and "for prohibiting or regulating the asking of  questions on, and the discussion of any subject specified in  the rules". Sub-Section (6) allowed "Standing orders" to be  made providing for the conduct of business and the procedure,  to be followed in either chamber of the Indian legislature in so  far as these matters are not provided for by rules made under  this Act.  Sub-Section (7) declared "Subject to the rules and  standing orders affecting the chamber" that there shall be  "freedom of speech in both chambers of the Indian legislature";  and that no person shall "be liable to any proceedings in any  court by reason of his speech or vote in either chamber, or by  reason of anything contained in any official report of the  proceedings of either chamber". The Government of India Act 1919 brought about  material changes in the Government of India Act 1915.  The  legislature now ceased to be part of the Executive and stood  on its own.  It was no longer an expanded Governor-General’s  Council with additional members.  The Governor General and  the Executive Councilor ceased to be ex-officio members of the  Legislative Council. The bicameral Indian Legislature would  consist of both nominated and elected members. Section 65 of the Government of India Act 1915, as  amended in 1919, provided for the powers of the Indian  Legislature, subject to the specific prohibition that it shall not  have the powers, inter alia, to make laws  "unless expressly so  authorized by Act of Parliament (of United Kingdom)", amongst  others, "affecting the authority of Parliament, or any part of  the unwritten laws or constitution of the United Kingdom of  Great Britain and Ireland whereon may depend in any degree  the allegiance of any persons to the Crown of the United

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Kingdom, or affecting the sovereignty or domination of the  Crown over any part of British India". The powers of legislation  of the local legislatures were defined more or less similarly in  Section 80 A. ’Parliamentary Privilege in India’ by Prititosh Roy (1991),  in Chapter-4, titled ’Historical Background of Parliamentary  Privilege in India (1915-1950)’ mentions, at page 53, about the  Report dated 3rd December 1924 of  the Reforms Inquiry  Committee under the chairmanship of Sir Alexander  Muddiman (the Home Member), which included as members  Sir Tej Bahadur Sapru and Mr. Jinnah, which had examined  the issue of powers of the Indian Legislature and gave vent to  the hope and aspiration of bringing legislatures in India "at  par with the House of Commons" and that "eventually no  doubt similar provision will be made in the Constitution of  British India". On the basis of the Report, the Indian  Legislature passed the Legislative Members Exemption Act,  1925 (Act XXIII of 1925) which granted two new parliamentary  privileges; viz. the privilege of exemption of the legislator from  jury service and the privilege of freedom from arrest. Theses  new privileges would be reflected in the Code of Criminal  procedure 1898 by incorporation in Section 323 and insertion  of Section 135A respectively.  Prititosh Roy mentions in "Parliamentary Privilege in  India" [p-55], the Legislative Assembly created under  Government of India Act, 1919 witnessed a number of  instances wherein the privileges of a legislative body were  asserted. These include the adjournment motion moved on  21st January 1927 by Pt. Motilal Nehru to discuss the conduct  of the Government in detaining Shri Satyendra Chandra Mitra,  an elected member of the House, on the ground it  tantamounts to a breach of the Privileges of the House and the  adjournment motion in the Legislative Assembly moved by  Shri Gaya Prasad Singh on 4th September, 1928 against the  Editor of the Times of India having made an attack on the  President of the House, though disallowed but with the  President having held that it is the inherent right of any  assembly to defend itself against outside attacks and it is  perfectly open in a proper cause for the House to table a  substantive motion and pass a vote of censure or  condemnation on the attacker. Prititosh Roy also mentions at Page 56 an interesting  episode involving the Indian Press Act, 1931 that was enacted  on 13th February, 1932. In its context, a question arose before  the Legislative Assembly under Government of India Act, 1919  regarding breach of the privileges upon a notice of motion  having appeared in the Press given by a member.   Acknowledging that there was a convention in the House of  Commons against release by a member to the Press for  publication questions for resolutions before they are admitted  by the chair and that breach thereof was treated as a serious  breach of the privilege of the House of Commons which had  ample powers to deal with the member in question, the  President of Indian Legislative Assembly noted that  "unfortunately neither this House nor the Spokesmen have  such powers" and commended that "this well established  convention, which is observed in the House of Commons  should also be observed as one of the conventions of this  House". Prititosh Roy refers at Pages 58-59 to Debates of Indian  Legislative Assembly [22nd January, 1935, p. 81 ff], which  quote yet another incident that needs to be taken note of. Shri  N.C. Bardaloi had raised an issue about the conduct of the  Government in preventing Mr. Sarat Chandra Bose, an elected  Member of the House, from attending to his duties as Member

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and thereby seriously infringing the privileges of the House.  Sir N.N. Sircar, the then Law Member of the Government of  India replied stating that the House had no power to punish  for its breach of privilege. The Government of India Act, 1935 came into force on 1st  April, 1937 and was operative till 14th August, 1947.  Sections  28 and 71 of the Government of India Act, 1935 dealt with the  subject of Privileges etc. of members of Federal Legislature and  Provincial Legislatures respectively.   The provision in Sub-Section (1) of Section 71 extended  the freedom of speech and immunity to speech or vote even in  the Committees of the Legislature and also covering  publication under the authority of a Chamber of the  Legislature of the House. Sub-Section (1) of Section 71, inter  alia, declared that "Subject to the provisions of this Act and to  rules and standing orders regulating the procedure of the  Legislature there shall be freedom of speech in every Provincial  Legislature" and that every member shall be entitled to  immunity from "any proceedings in any court in respect of  anything said or any vote given by him in the Legislature or  any committee thereof".  Sub-Section (2) of Section 71 of the Government of India  Act, 1935, for the first time, empowered the Provincial  Legislature to pass an Act to define the other privileges of the  members and, pending such legislation, the pre-existing  privileges were confirmed.  Some of the Provincial Legislatures  did legislate or attempt to legislate on this subject. Sub- Section (2) of Section 71 was on lines similar to present Article  194 (3). It read as follows:- "71.(2) In other respects the privileges of  members of a Chamber of a Provincial  legislature shall be such as may from  time to time be defined by Act of the  Provincial Legislature, and, until so  defined, shall be such as were  immediately before the commencement of  this Part of this Act enjoyed by members  of the Legislative Council of the Province."

Sub-Section (3) of Section 71 watered down the powers  and privileges of Indian Legislatures under Government of  India Act, 1935. It ran as follows:-  "71.(3) Nothing in any existing Indian  Law, and, notwithstanding anything in  the foregoing provisions of this Section,   nothing in this Act, shall be construed as  conferring, or empowering any  Legislature to confer, on a chamber  thereof or on both Chambers sitting  together or any Committee or officer of  the Legislature, the status of a court, or  any punitive or disciplinary powers other  than the power to remove or exclude  persons infringing the rules or standing  orders, or otherwise behaving in a  disorderly manner."

Clearly, the intendment was to restrict the powers and  privileges of Indian Legislatures to remedial action for  unobstructed functioning, severely restricting, or rather  forbidding, the exercise of punitive powers by a House of  Legislature. Similar provisions, mutatis mutandis, were made for the  Central Legislature, called the Federal Legislature, under  Section 28 which, however, never came into force since Part II

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of the Act of 1935 concerning the Federation of India never  became operative. Sub-Section (1) of Section 28 of the  Government of India Act, 1935, inter alia, declared that there  shall be "freedom of speech" in the Federal Legislature  "Subject to the provisions of this Act and to the rules and  standing orders regulating the procedure", and that "no  member of the legislature shall be liable to any proceedings in  any court in respect of anything said or any vote given by him  in the Legislature or any Committee thereof".  

Sub-Section (2) of Section 28 of the Government of India  Act, 1935, for the first time, empowered the Federal  Legislature to pass an Act to define the other privileges of the  members and again, pending such legislation, the pre-existing  privileges were confirmed.  Its language has a resonance of  what is employed in present Article 105 (3). It stated as  follows:- "28. (2). In other respects, the privileges  of members of the Chambers shall be  such as may from time to time be defined  by Act of the Federal Legislature, and,  until so defined, shall be such as were  immediately before the establishment of  the Federation enjoyed by members of the  Indian legislature."

Sub-Section (3) of Section 28 was designed to restrict the  powers and privileges of Indian Federal Legislature to remedial  action for unobstructed functioning. While preventing the  legislature from exercising the powers of the Court for any  punitive or disciplinary powers, it allowed the limited  jurisdiction to remove or exclude the person infringing the  rules or standing orders or otherwise behaving in a disorderly  manner. It read thus:- "28. (3). Nothing in any existing Indian  Act, and, notwithstanding anything in the  foregoing provisions of this section,  nothing in this act, shall be construed as  conferring, or empowering the Federal  legislature to confer, on either Chamber  or on both Chambers sitting together, or  on any committee or officer of the  Legislature, the status of the Court, or  any punitive or disciplinary powers other  than a power to remove or exclude  persons infringing the rules or standing  orders, or otherwise behaving in a  disorderly manner."

It is also necessary to take note of sub-Section (4) of  section 28 of Government of India Act, 1935 since it made the  intention clear that for punitive action in certain matters the  Legislature would have to go before a court. It provided as  follows:- "28. (3). Provision may be made by an Act  of the Federal Legislature for the  punishment, on conviction before a court,  of persons who refuse to give evidence or  produce documents before a committee of  a Chamber when duly required by the  Chairman of the Committee to do so.

Provided that any such Act shall have  effect subject to such rules for regulating  the attendance before such committees of

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persons who are, or have been, in the  service of the Crown in India, and  safeguarding confidential matter from  disclosure as may be made by the  Governor General exercising his  individual judgment."

Prititosh Roy at Page 71 mentions that the above  mentioned provisions were found by the Legislatures to be  ineffective and inadequate for upholding the dignity and  prestige of the legislature in India and for safeguarding the  right and privileges of Members and officers thereof. This  became subject matter of grievance conveyed in a  Memorandum by the President of the Indian Legislative  Assembly to the Reforms Commissioner of the Government of  India on 29th January, 1938, raising a demand that the  Central as well as provincial legislature in India should have  among other privileges also "the power to proceed in contempt  like the High Court and inflict punishment on any person who  violates the privileges of the House and of the members  thereof, or tries to bring the House or the President or the  Speaker into contempt\005" and for a request to be made to the  Government of India to take immediate steps to get Sections  28 and 71 of the Government of India Act, 1935 amended so  as to secure for the Central and Provincial Legislatures and  the officers and members thereof "all the powers and privileges  which are held and enjoyed by the Speaker and members of  the British House of Commons". The Indian Independence Act 1947, which brought  freedom from alien rule, made India a full fledged Dominion of  the Commonwealth of Nations. The Act conferred, through  Section 6(2), sovereign legislative power on the Indian  dominion abrogating the Imperial doctrine of Repugnancy in  the following terms:- "No law and no provision of any law made  by the Legislature of either of the new  Dominions (India and Pakistan) shall be  void or inoperative on the ground that it  is repugnant to the law of England, or to  the provisions of this or any existing or  future Act of Parliament of the United  Kingdom, or to any order, rule or  regulation made under any such Act."

The Governor General of India issued an Adaptation  Order by which, amongst others, the provisions of Section 28  of the Government of India Act, 1935, excepting the sub- Sections (3) and (4), were brought into force for the first time  for purposes of dominion legislature,. As a result, aside from  the "freedom of speech in the legislature", the law provided  that "in other respects the privileges of the members of the  domain legislature" shall be such as may from time to time be  defined by dominion legislature and, until so defined, should  be such as were immediately before the establishment of the  dominion enjoyed by the members of the Indian legislature   The omission of sub-Section (3) and sub-Section (4) of Section  28 indicated that the restrictions on the exercise of punitive  and disciplinary powers by the legislature were being removed.  As a result of the omission of sub-Sections (3) & (4) of  Section 28 by the Order, the Central legislature became  entitled to pass any Act on the subject of privileges under sub- Section (2) without any restriction and assume punitive and  disciplinary powers similar to those invested in the House of  Commons in England. But then, the Central Legislature did  not pass any law on privileges in exercise of the enabling

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powers under Section 28 (2) of Government of India Act, 1935,  as adapted after Independence.   Dr. Ambedker, the Chairman of the Drafting Committee  of the Constitution, while mooting for the Parliamentary  system similar to the one obtaining in England noted, in the  course of debates in the Constituent Assembly, that in the  latter jurisdiction, the parliamentary system relies on the daily  assessment of responsibility of the executive by members of  parliament, through questions, resolutions, no-confidence  motions and debates and periodic assessment done by the  electorate at the time of election; unlike the one in the United  States of America a system far more effective than the periodic  assessment and far more necessary in a country like India.  India thus adopted parliamentary Constitutional traditions.  The concept of parliamentary privileges in India in its  modern form is indeed one of graft, imported from England.   The House of Commons having been accepted by the  Constituent Assembly as the model of the legislature, the  privileges of that House were transplanted into the draft  Constitution through Articles 105 and 194.   Article 85 of the Draft Constitution, which corresponds to  present Article 105, contained the following provision with  respect to parliamentary privileges:- "85.(1) Subject to the rules and standing  orders regulating the procedure of  Parliament, there shall be freedom of  speech in Parliament.

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

(3) In other respect, the privileges and  immunities of member of the Houses  shall be such as may from time to time be  defined by Parliament by law, and until  so defined, of Commons of the Parliament  of the United Kingdom at the  commencement of this Constitution

(4) The provisions of clause (1), (2), and  (3) shall apply in relation to persons who  by virtue of this Constitution have the  right to speak in, and otherwise take part  in the proceedings of, a House of  Parliament as they apply in relation to  members of Parliament."

The reference to the House of Commons of the Parliament  of the United Kingdom provoked comment and intense debate.  As is seen from the Constituent Assembly Debates (Volume 8  of 19.5.1949 page 143-149), Shri H.V. Kamath suggested that  draft article 85 should truly rely upon our own precedents, our  own traditions and no importation must be attempted. While  commending reference to be made instead to privileges "as  were enjoyed by the members of the Dominion Legislature of  India immediately before commencement" of the Constitution,  he spoke thus:- "Sir, my knowledge of the various

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Constitutions is not as vast or as  profound as that of Dr. Ambedkar, but  relying on my meager knowledge of these  constitutions, I venture to state that this  is the first instance of its kind where  reference is made in the Constitution of a  free country to certain provisions  obtaining in the constitution of another  State.  I see no valid reason why this  should be done.  It may be that the rights  and privileges which we are going to  confer upon the Members of Parliament  of free India will be identical with, or  more or less similar to, those enjoyed by  the Members of the House of Commons in  the United Kingdom.  But may I ask, Sir,  in all humility "Is it necessary or is it  desirable, when we are drafting our own  constitution that we should lay down  explicitly in an article that the provisions  as regards this matter will be like those of  the House of Commons in England?"         It may be argued in support of this  proposition that there is nothing  derogatory to the dignity of our  Constitution or of our State in making  reference to the United Kingdom.  It may  be further reinforced by the argument  that now we have declared India as a full  member of the Commonwealth, certainly  there should be no objection, or any sort  of compunction in referring to the House  of Commons in England.  But may I  suggest for the serious consideration of  the House as to whether it adds \026 it may  not be derogatory, or detract from the  dignity of the Constitution \026 but does it  add to the dignity of the Constitution?   We say that such and such thing should  be what it is in the United Kingdom or in  America.  Will it not be far better, far  happier for us to rely upon our own  precedents, or our own traditions here in  India than to import something from  elsewhere and incorporate it by reference  in the Constitution?  Is it not sufficient to  say that the rights and privileges and  immunities of Members shall be such as  have been enjoyed by the Members of the  Constituent Assembly or Dominion  Legislature just before the  commencement of this Constitution?   Personally, I think, Sir, this would be far  better.  I venture to hope that my  honourable Friends in this House will be  inclined to the same view that instead of  quoting or citing the example of the  United Kingdom it would be far better for  us to rely upon the tradition we have  built up here.  Surely, nobody will  dispute the fact that the privileges and  immunities enjoyed by us here today are  in no way inferior to, or worse than, those  enjoyed by members of the House of  Commons in the United Kingdom.

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        As a matter of fact, I think most of  us do not know what are the privileges of  the members of the House of Commons.   We know very well what our privileges at  present are.  Therefore, Sir, it is far better  to build on our own solid ground, rather  than rely on the practices obtaining in  other countries. \005\005\005.."   Similar views were expressed in the course of the debate,  amongst others, by Shri Jaspat Roy Kapoor, Prof. K.T. Shah,  Prof. Shibban Lal Saxena, Mr. Narizuddin Ahmad, Dr. P.S.  Deshmukh. Prof. K.T. Shah had also proposed insertion of  clause (5) in draft Article 85 in the following form:- "In all matters of the privileges of the  House of Parliament or of members  thereof the House concerned shall be the  sole Judge and any order, decree or  sentence duly passed by that House shall  be enforced by the officers or under the  authority thereof".

Sir Alladi Krishnaswamy Iyer, while replying to the  criticism, stated thus:- "Sir, in regard to the article as it stands,  two objections have been raised, one  based upon sentiment and the other  upon the advisability of making a  reference to the privileges of a House in  another State with which the average  citizen or the members of Parliament here  may not be acquainted with.  In the first  place, so far as the question of sentiment  is concerned, I might share it to some  extent, but it is also necessary to  appreciate it from the practical point of  view. It is common knowledge that the  widest privileges are exercised by  members of Parliament in England. If the  privileges are confined to the existing  privileges of legislatures in India as at  present constituted, the result will be  that a person cannot be punished for  contempt of the House. The actual  question arose in Calcutta as to whether  a person can be punished for contempt of  the provincial legislature or other  legislatures in this country. It has been  held that there is no power to punish for  contempt any person who is guilty of  contempt of the provincial or even the  Central Legislature, whereas the  Parliament in England has the inherent  right to punish for contempt. The  question arose in the Dominions and in  the Colonies and it has been held that by  reason of the wide wording in the  Australia Commonwealth Act as well as  in the Canadian Act, the Parliament in  both places have powers similar to the  powers possessed by the Parliament in  England and therefore have the right to  punish for contempt. Are you going to  deny to yourself that power?  That is the

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question.

I will deal with the second objection.   If you have the time and if you have the  leisure to formulate all the privileges in a  compendious form, it will be well and  good. I believe a Committee constituted  by the Speaker on the legislative side  found it very difficult to formulate all the  privileges, unless they went in detail into  the whole working of parliamentary  institutions in England and the time was  not sufficient before the legislature for  that purpose and accordingly the  Committee was not able to give any  effective advice to the Speaker in regard  to this matter.  I speak subject to  correction because I was present at one  stage and was not present at a later  stage. Under these circumstances I  submit there is absolutely no question of  infra dig.  We are having the English  language. We are having our Constitution  in the English language side by side with  Hindi for the time being.  Why object only  to reference to the privileges in England?

The other point is that there is  nothing to prevent the Parliament from  setting up the proper machinery for  formulating privileges. The article leaves  wide scope for it. "In other respects, the  privileges and immunities of members of  the Houses shall be such as may from  time to time be defined by Parliament by  law and, until so defined, shall be such  as are enjoyed by the members of the  House of Commons of the Parliament of  the United Kingdom at the  commencement of this Constitution."  That is all what the article says. It does  not in any way fetter your discretion. You  may enlarge the privileges, you may  curtail the privileges, you may have a  different kind of privileges.  You may start  on your own journey without reference to  the Parliament of Great Britain. There is  nothing to fetter the discretion of the  future Parliament of India. Only as a  temporary measure, the privileges of the  House of Commons are made applicable  to this House. Far from it being infra dig,  it subordinates the reference to privileges  obtained by the members of Parliament in  England to the privileges which may be  conferred by this Parliament by its own  enactments.  Therefore, there is no infra  dig in the wording of clause (3).  This  practice has been followed in Australia, in  Canada and in other Dominions with  advantage and it has secured complete  freedom of speech and also the  omnipotence of the House in every  respect. Therefore we need not fight shy  of borrowing to this extent, when we are

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borrowing the English language and  when we are using constitutional  expressions which are common to  England. You are saying that it will be a  badge of slavery, a badge of serfdom, if we  say that the privileges shall be the same  as those enjoyed by the members of the  House of Commons. It is far from that.  Today the Parliament of the United  Kingdom is exercising sway over Great  Britain, over the Dominions and others.  To say that you are as good as Great  Britain is not a badge of inferiority but an  assertion of your own self-respect and  also of the omnipotence of your  Parliament. Therefore, I submit, Sir, there  is absolutely no force in the objection  made as to the reference to the British  Parliament. Under these circumstances,  far from this article being framed in a  spirit of servility or slavery or subjection  to Britain, it is framed in a spirit of self- assertion and an assertion that our  country and our Parliament are as great  as the Parliament of Great Britain." (Emphasis supplied)

       Dr. Ambedkar when invited  by the President to speak,  expressed satisfaction with the reply already given by Mr.  Alladi by saying "Mr. Alladi and others have already given the  reply, and I will be saying mostly the same thing, probably in a  different way".   The amendment moved by Prof. Shah was negatived by  the Constituent Assembly on 19th May 1948.  After adoption of  a minor amendment, for including the Committees of the  Houses of Parliament, Draft Article 85 (present Article 105)  was adopted and added to the Constitution. Article 169 of the Draft Constitution, which corresponds  to present Article 194, contained similar provision with respect  to privileges of the State Legislatures and came up for  discussion before the Constituent Assembly on 3rd June 1949.  The speeches made on the occasion are available at pages  578-584 of the Constituent Assembly Debates (Volume 8). Shri H.V. Kamath took exception in the following words:- "Mr. President, I shall, by your leave, say  a few words with respect to clause (3) of  this article.  I do not propose to repeat  what I said on an earlier occasion when  we were discussing the corresponding  clause relating to the privileges of  members of the Central Parliament.  But  I should like to invite the attention of Dr.  Ambedkar and also of the House to the  reaction among the people as well as in  the Press to the clause that we adopted  on that occasion. I have no doubt in my  own mind that Dr. Ambedkar keeps his  eyes and ears open, and cares to read  some of the important papers daily or at  least has them read to him daily. Soon  after this clause relating to the privileges  of members of Parliament was adopted in  this House, most of the Press was critical  of the way in which we had dealt with the

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matter. \005\005\005\005\005\005.. Britain, as the  House is aware, has an unwritten  Constitution though this particular  measure may be written down in some  document. \005\005\005\005.. Many of the  Members here who spoke on that  occasion remarked that they did not  know what the privileges of the Members  of the House of Commons were,  \005\005\005\005\005.. They could have at least  drafted a schedule and incorporated it at  the end of the Constitution to show what  the privileges of the members of the  House of Commons were. That was not  done, and simply a clause was inserted  that the privileges obtaining there will  obtain here as well.  Nobody knows what  those are, and a fortiori nobody knows  what privileges we will have. Our  Parliament presided over by Mr.  Mavalankar has adopted certain rules of  business and procedure tentatively, and  has also appointed or is shortly going to  appoint a Committee of Privileges. I  wonder why we could not have very  usefully and wisely adopted in our  Constitution something to this effect, that  whatever privileges we enjoy as members  of the Central Parliament will be enjoyed  by members of the Legislature in the  States.  If at all there was a need for  reference to any other Constitution. I  think it was very unwise on the part of  the Drafting Committee to refer to an  unwritten Constitution, viz., the  Constitution of Great Britain. There is the  written Constitution of the U.S.A., and  some of us are proud of the fact that we  have borrowed very much from the  American Constitution. May I ask Dr.  Ambedkar whether the privileges of the  Members of the House of Commons in the  United Kingdom are in any way superior  to or better than the privileges of the  members of the House of Representatives  of the United States?  If they are, I should  like to have enlightenment on that point.  If they are not, I think the reference to an  unwritten Constitution is not at all  desirable. \005\005..If necessary let us put in  a schedule to our Constitution, and say  here in this article that the privileges and  rights are as specified in the Schedule at  the end.  \005\005\005 I would any day prefer a  definite schedule in the Constitution  showing what privileges shall be enjoyed  by members of the Legislatures and of  Parliament. This particular clause, to my  mind, should be recast. We have passed  one clause on an earlier occasion, but  that is no reason why we should  perpetrate the same mistake over and  over again. I would, therefore beg of Dr.  Ambedkar and his wise team of the  Drafting Committee and the House to

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revise this clause, and if necessary, to go  back to the other clause, if they are  convinced of the wisdom of this course,  and revise that also accordingly, and  proceed in a saner and a wiser manner."     Dr. B.R. Ambedkar, Chairman of the Drafting Committee,  trying to allay doubts, answered the criticism in the following  manner:- "Sir, not very long ago this very matter  was debated in this House, when we were  discussing the privileges of Parliament  and I thought that as the House had  accepted the article dealing with the  privileges and immunities of Parliament  no further debate would follow when we  were really reproducing the very same  provision with regard to the State  legislature. But as the debate has been  raised and as my Friend Mr. Kamath said  that even the press is agitated, I think it  is desirable that I should state what  exactly is the reason for the course  adopted by the Drafting Committee,  especially as when the debate took place  last time I did not intervene in order to  make the position clear.

       I do not know how many Members  really have a conception of what is meant  by privilege. Now the privilege which we  think of fall into two different classes.   There are first of all, the privileges  belonging to individual members, such as  for instance freedom of speech, immunity  from arrest while discharging their duty.   But that is not the whole thing covered by  privilege.

XXXXXXXXXXXXXXX

\005\005..  It is not easy, as I said, to define  what are the acts and deeds which may  be deemed to bring Parliament into  disgrace. That would require a  considerable amount of discussion and  examination. That is one reason why we  did not think of enumerating these  privileges and immunities.

       But there is not the slightest doubt  in my mind and I am sure also in the  mind of the Drafting Committee that  Parliament must have certain privileges,  when that Parliament would be so much  exposed to calumny, to unjustified  criticism that the Parliamentary  institution in this country might be  brought down to utter contempt and may  lose all the respect which parliamentary  institutions should have from the citizens  for whose benefit they operate.

       I have referred to one difficulty why  it has not been possible to categorise.  

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Now I should mention some other  difficulties which we have felt.

       It seems to me, if the proposition  was accepted that the Act itself should  enumerate the privileges of Parliament,  we would have to follow three courses.  One is to adopt them in the Constitution,  namely to set out in detail the privileges  and immunities of Parliament and its  members.  I have very carefully gone over  May’s Parliamentary Practice which is the  source book of knowledge with regard to  the immunities and privileges of  Parliament.  I have gone over the index to  May’s Parliamentary Practice and I have  noticed that practically 8 or 9 columns of  the index are devoted to the privileges  and the immunities of Parliament. So  that if you were to enact a complete code  of the privilege and immunities of  Parliament based upon what May has to  say on this subject, I have not the least  doubt in my mind that we will have to  add not less than twenty or twenty five  pages relating to immunities and  privileges of Parliament. I do not know  whether the Members of this House  would like to have such a large  categorical statement of privileges and  immunities of Parliament extending over  twenty or twenty five pages. That I think  is one reason why we did not adopt that  course.

       The other course is to say, as has  been said in many places in the  Constitution, that Parliament may make  provision with regard to a particular  matter and until Parliament makes that  provision the existing position would  stand.  That is the second course which  we could have adopted. We would have  said that Parliament may define the  privileges and immunities of the members  and of the body itself, and until that  happens the privileges existing on the  date on which the Constitution comes  into existence shall continue to operate.  But unfortunately for us, as honourable  Members will know, the 1935 Act  conferred no privileges and no  immunities on Parliament and its  members. All that it provided for was a  single provision that there shall be  freedom of speech and no member shall  be prosecuted for anything said in the  debate inside Parliament.  Consequently  that course was not open, because the  existing Parliament or Legislative  Assembly possesses no privilege and no  immunity.  Therefore we could not resort  to that course.

       The third course open to us was the

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one which we have followed, namely, that  the privileges of Parliament shall be the  privileges of the House of Commons. It  seems to me that except for the  sentimental objection to the reference to  the House of Commons I cannot see that  there is any substance in the argument  that has been advanced against the  course adopted by the Drafting  Committee. I therefore suggest that the  article has adopted the only possible way  of doing it and there is no other  alternative way open to us. That being so,  I suggest that this article be adopted in  the way in which we have drafted it." (Emphasis supplied)   Dr. Ambedkar thus reiterated the justification given by  Mr. Alladi earlier, adding that the cataloguing of all powers  and privileges would have added to the volume of the  Constitution and that the course of adopting the powers and  privileges of the existing legislature under Government of India  Act, 1935 was inadvisable as that body had hardly any rights  available. The draft Article 169 (corresponding to present  Article 194) was adopted after the above mentioned  explanation and made part of the Constitution. The Constitution thus adopted through Articles 105 and  194, for the Parliament and the State Legislatures respectively,  the same powers, privileges and immunities as vested at the  commencement of the Constitution in the House of Commons  of the Parliament of United Kingdom, until they were "defined  by law". From this perspective, the learned Additional Solicitor  General is not wrong when he says that the establishment of  privileges in India at par with those existing in the House of  Commons was not reflective of a colonial legacy but, it was an  assertion of the truly sovereign nature of the Indian  Parliament. The above discussion shows that the reference to the  privileges of the House of Commons was justified on grounds  of self-assertion that free India and its Parliament are as great  as the Parliament of Great Britain.  The replies above quoted  also show that the drafting committee was more concerned  about giving to the Parliament the widest privileges as  exercised by members of Parliament in England, including the  power to punish for contempt of the House. Full fledged  provisions listing out the powers and privileges was not  possible as there was not sufficient time or the leisure to  formulate all of them in a compendious form, as had been  found by a Committee constituted by the Speaker on the  legislative side. That is why a wide scope and unfettered  discretion was being left for the future Parliament of India to  set up the proper machinery for formulating privileges, which  could be enlarged or curtailed. The adoption of the powers and  privileges of the House of Commons was only as a temporary  measure, following the practice that had been followed in  Australia, in Canada and in other Dominions with advantage  to secure complete freedom of speech and also the  omnipotence of the legislature in every respect. We would like to dispose of here itself a small argument  put across by learned Counsel for the Petitioners. The  argument is that the fact that the provisions of Article 105  were amended by the Constitution (44th Amendment) Act,  1978, thereby deleting the reference to the House of Commons  with effect from 20th June 1979, the subject of powers and  privileges are to be construed and pegged to that date and

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further that since the House of Commons had not exercised  the power of expulsion after 1947, such power, even if it  existed in the House of Commons in 1947 has become  obsolete and non-existing. While arguing that such power has  not been inherited by the Indian Parliament, counsel would  also refer to certain recent developments in United Kingdom,  in particular Parliamentary Privilege-First Report, published  on 30.03.1999, in the wake of which a recommendation has  been made that "the Parliament’s power to imprison person  whether member or not, who are in contempt of Parliament  should be abolished" and further that, "the power of the House  of Lords to suspend its members should be clarified and  confirmed".  We are not impressed with any of these arguments. The  amendment brought into force in 1979 does not turn the clock  ahead. The powers and privileges of the House of Commons of  the Parliament of the United Kingdom as on the date of  commencement of the Constitution of India were the powers  and privileges available to the Parliament before the  amendment and that is the package which continues to be  available post-amendment. Use of a particular power in 1947  would rather make it closer in terms of time to the crucial date  of commencement of Indian Constitution. Its disuse in later  period is of no consequence. In this view, we are also not  concerned with subsequent developments.      We are, thus, back at the issue of powers and privileges  of the House of Commons of the Parliament of the United  Kingdom as on the date of commencement of the Constitution  of India.  Powers, Privileges and Immunities - generally  As already noticed, Articles 105 and 194 employ almost  identical language.  Article 194 was at the core of the  controversy in the UP Assembly Case.  Dealing with the provisions contained in Clause (1) of  Article 194, this Court observed thus:- "\005\005\005.. Clause (1) makes it clear that  the freedom of speech in the legislature of  every State which it prescribes, is subject  to the provisions of the Constitution, and  to the rules and standing orders,  regulating the procedure of the  legislature. While interpreting this clause,  it is necessary to emphasise that the  provisions of the Constitution to which  freedom of speech has been conferred on  the legislators, are not the general  provisions of the Constitution but only  such of them as relate to the regulation of  the procedure of the legislature. The rules  and standing orders may regulate the  procedure of the legislature and some of  the provisions of the Constitution may  also purport to regulate it; these are, for  instance, Articles 208 and 211. The  adjectival clause "regulating the  procedure of the legislature" governs both  the preceding clauses relating to "the  provisions of the Constitution" and "the  rules and standing orders". Therefore,  clause (1) confers on the legislators  specifically the right of freedom of speech  subject to the limitation prescribed by its  first part. It would thus appear that by  making this clause subject only to the  specified provisions of the Constitution,

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the Constitution-makers wanted to make  it clear that they thought it necessary to  confer on the legislators freedom of  speech separately and, in a sense,  independently of Article 19(1)(a). If all  that the legislators were entitled to claim  was the freedom of speech and  expression enshrined in Article 19(1)(a), it  would have been unnecessary to confer  the same right specifically in the manner  adopted by Article 194(1); and so, it  would be legitimate to conclude that  Article 19(1)(a) is not one of the  provisions of the Constitution which  controls the first part of clause (1) of  Article 194."  (Emphasis supplied)

Taking note of Pandit Sharma (I), it was reiterated in the  UP Assembly Case that clause (1) of Article 194 no doubt  makes a substantive provision of the said clause subject to the  provisions of the Constitution; but in the context, those  provisions cannot take in Article 19(1)(a), because latter article  does not purport to regulate the procedure of the legislature  and it is only such provisions of the Constitution which  regulate the procedure of the legislature which are included in  the first part of Article 194(1) On the provisions of clause (2) of Article 194, this is what  the Court found:- "It is plain that the Constitution-makers  attached so much importance to the  necessity of absolute freedom in debates  within the legislative chambers that they  thought it necessary to confer complete  immunity on the legislators from any  action in any court in respect of their  speeches in the legislative chambers in  the wide terms prescribed by clause (2).  Thus, clause (1) confers freedom of  speech on the legislators within the  legislative chamber and clause (2) makes  it plain that the freedom is literally  absolute and unfettered."   (Emphasis supplied)

In the context of the all important clause (3) of Article  194, the Court observed thus:- "\005\005\005\005\005\005 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)."  (Emphasis supplied)

The above quoted observations squarely apply to the

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corresponding clauses of Article 105 of the Constitution. In the context of the noticeable omission in other clauses,  including clause (3), of the expression "Subject to the  provisions of this Constitution" as used in clause (1) of Article  194, this Court felt: "\005\005\005\005.all the four clauses of Article  194 are not in terms made subject to the  provisions contained in Part III. In fact,  clause (2) is couched in such wide terms  that in exercising the rights conferred on  them by clause (1), if the legislators by  their speeches contravene any of the  fundamental rights guaranteed by Part  III, they would not be liable for any action  in any court. Nevertheless, if for other  valid considerations, it appears that the  contents of clause (3) may not exclude  the applicability of certain relevant  provisions of the Constitution, it would  not be reasonable to suggest that those  provisions must be ignored just because  the said clause does not open with the  words "subject to the other provisions of  the Constitution". In dealing with the  effect of the provisions contained in  clause (3) of Article 194, wherever it  appears that there is a conflict between  the said provisions and the provisions  pertaining to fundamental rights, an  attempt will have to be made to resolve  the said conflict by the adoption of the  rule of harmonious construction\005\005\005" (Emphasis supplied)

The argument that though Article 194(3) had not been  made subject to the provisions of the Constitution, it does not  necessarily mean that it is not so subject, and that the several  clauses of Article 194 should not be treated as distinct and  separate provisions but should be read as a whole and that, so  read, all the clauses should be taken as subject to the  provisions of the Constitution which, of course, would include  part III of the Constitution had been earlier rejected by this  Court through unanimous view on the subject in Pandit  Sharma (I).  It is incumbent in view of Article 105 (3) to trace the  power of expulsion with reference to the powers, privileges and  immunities recognized as vesting in the House of Commons of  Parliament of United Kingdom as on the date of  commencement of the Constitution of India, that is 26th  January 1950. If such a power or privilege vested in the said  legislature, the question would arise as to whether it could be  part of the inheritance for Indian legislatures in the face of the  provisions of its written Constitution.   It is settled that out of entire bouquet of privileges and  powers which the House of Commons claimed at the time of its  bitter struggle for recognition during the 17th through 19th  centuries, all have not survived the test of time. Some were  given up. Some others faded out by desuetude. In this context,  this Court in UP Assembly Case opined thus:- "\005\005\005\005. in every case where a power is  claimed, it is necessary to enquire  whether it was an existing power at the  relevant time. It must also appear that  the said power was not only claimed by  the House of Commons, but was

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recognised by the English Courts. It  would obviously be idle to contend that if  a particular power which is claimed by  the House was claimed by the House of  Commons but was not recognised by the  English courts, it would still be upheld  under the latter part of clause (3) only on  the ground that it was in fact claimed by  the House of Commons. In other words,  the inquiry which is prescribed by this  clause is: is the power in question shown  or proved to have subsisted in the House  of Commons at the relevant time?"  (Emphasis supplied)

The argument of availability of all the powers and  privileges  has been rejected in UP Assembly Case with  reference to illustrations of some powers claimed by the House  of Commons as mentioned in May’s Parliamentary Practice  (pages 86 & 175 in 16th Ed.), but which cannot be claimed by  the Indian legislatures, including the privilege of freedom of  access which is exercised by the House of Commons as a body  and through its Speaker "to have at all times the right to  petition, counsel, or remonstrate with their Sovereign through  their chosen representative and have a favourable  construction placed on his words was justly regarded by the  Commons as fundamental privilege"; the privilege to pass acts  of attainder and impeachments; and the privilege in regard to  its own Constitution which is expressed in three ways, first by  the order of new writs to fill vacancies that arise in the  Commons in the course of a parliament; secondly, by the trial  of controverted elections; and thirdly, by determining the  qualifications of its members in cases of doubt.  Plea of negation by other Constitutional provisions            Before we consider the question whether the power of  expulsion can be read within Article 105(3) or not, it is  necessary first to decide the question : will reading such a  power under Article 105(3) violate any other provisions of the  constitution.  In other words, whether power of expulsion  would be inconsistent with other provisions of the  Constitution of India. According to the Petitioners the power of expulsion is  inconsistent with the following provisions of the Constitution:- (i)     The provisions relating to vacancy and disqualifications  [Articles 101 - 103]; (ii)    The provisions relating to salaries and allowances of  members and their right to hold office till the end of the  term [Article 106 and Article 82(3)]; (iii)   Citizen’s right to vote and right of representation of their  constituency in Parliament ; and (iv)    The fundamental rights of the MPs. (i)     Provisions relating to vacancy and disqualification: The Petitioners have relied on Articles 101, 102 and 103  of the Constitution in support of their contention.  The  submission is that these Articles (relating to vacancy and  disqualification) are exhaustive regarding the termination of  membership of the Parliament and that no additional ground  can exist based on which the membership of a sitting Member  of Parliament can be terminated.  Articles 101, 102 and 103  appear under the sub-heading "Disqualifications of Members"  in Chapter II of Part V of the Constitution.  Learned counsel for the Petitioners submit that since the  Parliament can create an additional disqualification by law, it  was open to it to pass a law seeking to disqualify from  continuing the membership of such members as are guilty of

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conduct unworthy of a member. Such a law not having been  passed, the petitioners submit, the termination of membership  cannot take place through a resolution of the House  purporting to act under Article 105(3).   Articles 190 and 191  which pertain to the vacation of seats and disqualifications for  membership of State legislatures, correspond to, and are on  identical terms as, Articles 101 and 102.  It is necessary to understand the exact import of the  terms ’vacancy’, ’disqualification’ and ’expulsion’. These terms have different meanings and they do not  overlap. Disqualification strikes at the very root of the  candidate’s qualification and renders him or her unable to  occupy a member’s seat. Expulsion, on the other hand, deals  with a person who is otherwise qualified, but in the opinion of  the House of the legislature, unworthy of membership. While  disqualification operates to prevent a candidate from re- election, expulsion occurs after the election of the member and  there is no bar on re-election. As far as the term ’vacancy’ is  concerned, it is a consequence of the fact that a member  cannot continue to hold membership. The reason may be any  one of the several possible reasons which prevent the member  from continuing membership, for example disqualification,  death or expulsion. In view of above, it is not possible to accept the  submission that the termination of membership can be  effected only in the manner laid down in Articles 101 and 102.  While these articles do speak of qualifications for and  continuation of membership, in our view they operate  independently of Article 105(3). Article 105(3) is also a  constitutional provision and it demands equal weight as any  other provision, and neither being ’subject to the provisions of  the constitution’, it is impossible to accord to one superiority  over the other. We cannot accept the submission that the  provisions in Articles 101 or 102 restrict in any way the scope  of 194(3). There is no reason for them to do so. Though  disqualification and expulsion both result in the vacancy of a  seat, there is no necessity to read one in a way that restricts  the scope of the other. The expulsion on being found unfit for  functioning within the House in no way affects the  qualifications that a member must fulfill, and there is no  reason for the latter to affect expulsion.  Both of the provisions  can operate quite harmoniously. We fail to see any  inconsistency between the two. Nor do we find any reason to  support the claim that provisions under Articles 101 and 102  are exhaustive and for that reason,  Article 105(3) be read as  not to include the power of expulsion. Further, death as a  cause for vacancy of a seat is also not mentioned in the  relevant provisions.  Similarly, it is not necessary for expulsion  to be mentioned, if there exists another constitutional  provision that provides for such a power.  It is obvious that  upon expulsion, the seat of the member is rendered vacant  and so no specific recognition of this provision is necessary  within the provision relating to vacancy. Thus, the power of  expulsion cannot be held to be inconsistent with these  provisions. While interpreting Article 194, three High Courts have  rightly rejected similar contentions {Yashwant Rao  Meghawale v. Madhya Pradesh Legislative Assembly [AIR  1967 MP 95], Hardwari Lal [ILR (1977) 2 P&H 269 (FB)], K.  Anbazhagan v. TN Legislative Assembly [AIR 1988 Mad.  275].  An almost identical question was raised in an  Australian case of Armstrong v. Budd [(1969) 71 SR 386  (NSW)].  The question in that case was whether Section 19 of  the Constitution Act which provided for circumstances of  vacation of seats of Legislative Councillors was exhaustive so

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as to prevent the power of expulsion. The Court rejecting the  argument that section 19 was exhaustive stated:- "\005\005\005..but cannot be argued that s. 19  constitutes a complete code for the  vacation of a seat or contains the only  criteria upon which a vacancy can  occur\005\005"

Thus, we are unable to accept the Petitioners’ contention  that Articles 101 and 102 are exhaustive with respect to  termination of membership. Therefore, power of expulsion  cannot be said to be inconsistent with these provisions. In connection with this issue, the Petitioners have also  relied on two other provisions. First, they would submit that  sections 7-10A of the Representation of Peoples Act, 1951 lay  down exhaustive provisions on disqualification, implying that  all disqualifications must be made by law. Indeed, there is no  quarrel with this position. In fact, it has been held by this  Court in Shrikant v. Vasantrao [(2006) 2 SCC 682] that "it  is not possible to add to or subtract from the disqualifications,  either on the ground of convenience, or on the grounds of  equity or logic or perceived legislative intention". However, as  discussed earlier, disqualification and expulsion are two  different concepts altogether, and recognizing the Parliament’s  power to expel under Article 105(3) does by no means amount  to adding a new ground for disqualification. The other provision that the Petitioners have relied upon  is Article 327 of the Constitution. This article enables the  Parliament, subject to the other provisions of the Constitution,  to make provisions by law for "all other matters necessary for  securing the due constitution of the House".  They would also  refer to Entry 74 of List I of the Seventh Schedule which  confers upon the Parliament the competence to legislate on the  power, privileges and immunities of the Houses of Parliament.  The argument is that the Parliament can only claim additional  powers by making a law.  However, we are unable to accept  this contention, since Article 105(3) itself provides the power  to make a law defining powers and privileges and further the  position that all the privileges of the House of Commons vest  in the Parliament until such a law is passed.  Article 327  pertains to the constitution of the House insofar as election  matters, etc. are concerned. It does not refer to privileges that  the Parliament enjoys. Thus, we find that the power of expulsion is not negated  by any of the above constitutional or statutory provisions. (ii)    Provisions relating to salary etc. and the right to a  fixed term:

It was further argued by the Petitioners, that provisions  in the constitution relating to salary and the term for which  they serve in the House are constitutional rights of the  members and the power of expulsion, by terminating their  membership violates these constitutional rights. The relevant provisions in the constitution are Article 106  on the subject of salaries and Article 83(2) in relation to the  duration of the Houses of Parliament.  The Petitioners have relied on these above constitutional  provisions and submitted that an expulsion of a Member of  Parliament would result in the violation of the above rights  guaranteed to him. The claim of the other side is that the  decision to expel does not violate these rights. Firstly, it has  been argued that the article laying down the duration of the  House does not guarantee a term for the member. Various  circumstances have been pointed out under which the term

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held by a member can be much less than five years, regardless  of what is stated in Article 83(2). Secondly, it has been argued  that Article 106, which lays down provisions for the salary of  the member, is dependent upon the person’s membership. It is  only as long as the person continues to be a member that he  can draw the salary. When the membership terminates, the  provisions of Article 106 become inapplicable. Similar arguments were made in the case of K. Anandan  Nambiar v. Chief Secretary, State of Madras [AIR 1966 SC  657].  In that case, certain members of Parliament were  detained by the Government of Madras and one of the grounds  on which they challenged their detention was the violation of  their constitutional rights. In support of this contention, the  Petitioners relied on various provisions relating to members  and proceedings of the Parliament including Articles 79, 85,  86 and 100. They claimed that they continued to exercise all  the ’constitutional rights’ that flow from membership unless  the member is disqualified. The contention was that "if a  Member of Parliament incurs a disqualification, he may cease  to be such member, but if he continues to be qualified to be a  member, his constitutional rights cannot be taken away by  any law or order". This Court rejected this argument holding  that:-  "\005.they are not constitutional rights in  the strict sense, and quite clearly, they  are not fundamental rights at all" (Emphasis supplied)

Although this case involved detention and the arrest of  the members of Parliament, which are matters relating to field  distinct from that of the rights claimed in the cases at hand,  we are of the view that the logic in the case applies equally to  the present situation. In this case certain provisions regarding  members and their functioning within the Parliament were  held not to create independent rights which could be given  supremacy over a legal detention.  Similarly, in the present  case, where there is a lawful expulsion, the members cannot  claim that the provisions relating to salaries and duration of  the House create such rights for the members that would have  supremacy over the power of expulsion of the House. With specific reference to the power of expulsion, a  similar argument with respect to the duration of the  Legislative Assembly of a State was rejected by the Madras  High Court in the K. Anbazhagan (supra).  The High Court  rightly held that such a provision could not negate the power  of expulsion.  It stated:- "Therefore, it cannot be said that merely  because Article 172 provides for a period  of five years to be the duration of the  Legislative Assembly each member must  necessarily continue to be a member for  five years irrespective of the other  provisions of the Constitution".  

As far as the provision for the duration of the House is  concerned, it simply states that the normal duration of a  House is to be five years. It cannot be interpreted to mean that  it guarantees to the members a term of five years. The  Respondents have correctly pointed out that a member does  not enjoy the full five-year term under various circumstances;  for example when he or she is elected mid-term, when the  term of the House is cut short by dissolution, when the  member stands disqualified or the seat is rendered vacant. We  find that a correct view in this regard has been taken in K.

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Anbazhagan, in line with the view expressed by this Court in  K. Anandan Nambiar. If the provisions mentioned by the  petitioners were actually to create rights in respect of  members, then each of the above situations would be liable to  be challenged for their violation.  This quite obviously is not  what is intended by the Constitution. Expulsion is only an  additional cause for the shortening of a term of a member. Further, as far as the provision relating to the salary of  the member is concerned, it is quite absurd to claim that  because the Constitution makes a provision for salaries, the  power of the House to expel is negated since the result would  be that the member would no longer be paid. Salaries are  obviously dependent upon membership, and the continuation  of membership is an independent matter altogether. The  termination of membership can occur for a variety of reasons  and this is at no point controlled by the fact that salaries are  required to be paid to a member. Thus, in our view, the above provisions do not negate the  power of expulsion of the House, and there is no inconsistency  between the House’s power of expulsion and the said  provisions. (iii)   The right of the constituency to be represented and  the right to vote:

The next contention of behalf of the Petitioners has been  that in the democratic set-up adopted by India, every citizen  has a right to vote and to be duly represented. It was argued  that expelling a member who has been elected by the people  would violate the democratic principles and the constituency  would go unrepresented in the Parliament. They submit that  the right to vote ought to be treated as a fundamental right  and that the power of expulsion violates various democratic  principles. On the other hand, the learned Counsel for Union  of India submitted that the right to be represented is not an  absolute right, and that expulsion does not create a bar for re- election. We are unable to accept the contentions of the  petitioners.  In this regard, it is first important to note that the  right to vote has been held to be only a statutory right, and  not a constitutional or a fundamental right (see Shrikant v.  Vasantrao [(2006) 2 SCC 682] and Kuldip Nayar v. Union  of India [(2006) 7 SCC 1]. While it is true that the right to vote and be represented  is integral to our democratic process, it must be remembered  that it is not an absolute right. There are certain limitations to  the right to vote and be represented. For example, a citizen  cannot claim the right to vote and be represented by a person  who is disqualified by law or the right to be represented by a  candidate he votes for, even if he fails to win the election.  Similarly, expulsion is another such provision.  Expulsion is  related to the conduct of the member that lowers the dignity of  the House, which may not have been necessarily known at the  time of election. It is not a capricious exercise of the House,  but an action to protect its dignity before the people of the  country. This is also an integral aspect of our democratic set- up. In our view, the power of expulsion is not contrary to a  democratic process. It is rather part of the guarantee of a  democratic process. Further, expulsion is not a decision by a  single person. It is a decision taken by the representatives of  the rest of the country. Finally, the power of expulsion does  not bar a member from standing for re-election or the  constituency from electing that member once again. Thus, we hold that the power of expulsion does not  violate the right of the constituency or any other democratic

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principles. (iv)    Fundamental rights of the member: Lastly, it has been contended by the Petitioners that the  power of expulsion violates the fundamental rights of the  member. It was argued that the power of expulsion violates  Article 19(1)(g), which guarantees the right to ’practise any  profession, or to carry on any occupation trade of business’. It  was submitted that this right can only be curtailed by a law in  the interest of general public and that producing the same  result by a resolution of the House is impliedly barred. It was  also contended that Article 21, which includes the right to  livelihood was violated, since it can only be restricted by a  ’procedure established by law’. We are not impressed with any of these contentions of  the petitioners.  Even if it were to be assumed these rights  apply, we do not believe that they could prevent reading the  power of expulsion within Article 105(3). First, it is to be remembered that 105(3) is itself a  constitutional provision and it is necessary that we must  construe the provisions in such a way that a conflict with  other provisions is avoided. We are of the view that where  there is a specific constitutional provision as may have the  effect of curtailing these fundamental rights if found  applicable, there is no need for a law to be passed in terms of  Article 19(6). For example, Article 102 relating to  disqualifications provides that members who are of unsound  mind or who are undischarged insolvents as declared by  competent courts are disqualified. These grounds are not  mentioned in the Representation of Peoples Act, 1951. Though  this provision would have the effect of curtailing the rights  under Article 19(1)(g), we doubt that it can ever be contended  that a specific law made in public interest is required.  Similarly, if Article 105(3) provides for the power of expulsion  (though not so expressly mentioned), it cannot be said that a  specific law in public interest is required. Simply because the  Parliament is given the power to make law on this subject is  no reason to say that a law has to be mandatorily passed,  when the Constitution itself provides that all the powers of the  House of Commons vest until such a law is made.  Thus, we  find that Article 19(1)(g) cannot prevent the reading of power of  expulsion under Article 105(3). Finally, as far as Article 21 is concerned, it was  submitted that the ’procedure established by law’ includes the  rules relating to the Privileges Committee, etc., which were not  followed and thus the right was violated. In our view, this does  not prevent the reading of the power to expel in Article 105(3).  It is not possible to say that because a ’procedure established  by law’ is required, it will prevent the power of expulsion  altogether and that every act of expulsion will be contrary to  the procedure established by law.  Whether such a claim is  maintainable upon specific facts of each case is something  that will have to be considered when the question of judicial  review is taken up. At this stage, however, a blanket ban on  the power of expulsion based on Article 21 cannot be read in  the Constitutional provisions. This is an issue that may have a  bearing on the legality of the order. But, it cannot negate the  power of expulsion. In the light of the above discussion, we hold that the  power of expulsion does not come into conflict with any of the  constitutional provisions and thus cannot be negated on this  basis.  Let us now consider the argument in relation to the  power of self composition of House of Commons. Power of self composition

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The history of England is replete with numerous  instances wherein the power of expulsion was exercised by the  House of Commons. It has been strenuously argued by          Mr.Jethmalani and Mr.Lekhi that all the powers and privileges  of the House of Commons have not been inherited by the  legislative organ under the Constitution of India and power of  expulsion is one such power.  To consider this contention, it is  necessary to find out the true nature and character of the  power of expulsion claimed by the House of Commons. It is true that certain privileges of the House of Commons  are not available to any legislative body in India, whether at  the Union level or in the States, even under clauses (3) of  Articles 105 or 194 of the Constitution. The case of the petitioners is that the House of Commons  derives the power to expel its members solely from its privilege  of regulating its composition, and from no other source. In  other words, they submit that the power of expulsion has  always been claimed and exercised by the House of Commons  as one that stems from the power of the House of Commons to  determine its own composition including the fitness of elected  members to remain members. Power of expulsion is a facet of  and is part & parcel of this basic privilege of the House of  Commons to provide for and regulate its own Constitution.   The House of Commons has always claimed an unrestricted  and un-canalized power of expelling anyone of its members for  historical reasons and as an adjunct of the ancient and  peculiar privilege of determining its own composition. It has  resorted to this power of expulsion in numerous cases which  have not the remotest relevance to either a breach of privilege  or to the commission of contempt or as a measure of  punishment for ordinary crimes. The argument is that since the Parliament of India does  not have the power to provide for or regulate its own  constitution, power of expulsion cannot be found conferred by  Article 105 on the Houses of Parliament. In this respect, the  petitioners would place reliance on the conclusion, reached,  with reference to May’s Parliamentary Practice [16th ed.,  p.175], in the UP Assembly Case (at page 448) to the effect  that the legislature in India cannot claim privilege of the  House of Commons "in regard to its own Constitution" which  is "expressed in three ways, first by the order of new writs to  fill 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 ". That the legislatures established under the Constitution  of India do not have the power of self composition cannot be a  subject matter of controversy. It was clearly so observed in UP  Assembly Case. The Legislative organs in India, both Parliament and the  State legislatures, are completely subservient to, and controlled  by, the written provisions of the Constitution of India in regard  to the composition and the regulation of the membership  thereof and cannot claim the privilege of providing for or  regulating their own constitution. This can be demonstrated by  even a cursory look at the various provisions of the  Constitution which we may presently do. India is an indestructible Union of destructible units.  Article 3 and Article 4 of the Constitution together empower  Parliament to make laws to form a new State by separation of  the territory from any State or by uniting two or more States or  parts of States or by uniting any territory to a part of any State,  and in so doing to increase or diminish the area of any State  and to alter its boundaries and further to give effect through  measures to provide for the representation in the Legislatures

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of State or States affected by such law by varying the compo- sition, the numerical strength thereof or even affecting the very  existence of a State Legislature. Article 79 provides for the Constitution of Parliament i.e.  the Union Legislature which consists of the President and two  Houses known respectively as the Council of States and the  House of the People.  Article 81 deals with the composition of  the House of the People and inter alia provides for the  maximum numerical strength (not more than five hundred  and thirty members from the States and not more than twenty  members to represent the Union Territories), the manner of  election (direct) and the nature of constituencies in the States  (territorial), allotment thereof to the different States on the  basis of ratio between the number of seats and the population  of the State, with Article 82 taking care of the readjustment of  allocation of seats and the division of each State into territorial  constituencies after each census.  Article 83 provides for the  duration of each House of Parliament, making the council of  States a permanent body with one-third of the members  thereof retiring on the expiration of every second year, thereby  giving to each of them tenure of six years.  It declares the term  of the House of the People to be five years, unless sooner  dissolved, extendable for a period not exceeding one year at a  time in the event of proclamation of emergency.  Article 84 prescribes the qualifications for membership of  Parliament, spelling out two main qualifications, leaving the  discretion to prescribe the others by law to the Parliament.   The qualifications necessary as per the constitutional  provisions include the citizenship of India and a minimum age.  Article 102 prescribes certain disqualifications which  operate as disqualifications at the time of Election or may  become supervening qualifications subsequent to the election.   As per the mandate in this constitutional provision a person is  disqualified for being chosen as or for being a member of  Parliament if he holds an office of profit (other than such  offices as are declared by Parliament to be exempt from such  consequences); if he is of unsound mind and so declared by a  competent court; if he is an undischarged insolvent; if he is  not a citizen of India or has voluntarily acquired citizenship of  a foreign state or is under any acknowledgement of allegiance  or adherence to a foreign state and if he is so disqualified by or  under any law made by parliament.  The question of  disqualification is decided on the basis of opinion of the  Election Commission by the President, in terms of the power  vested in him by Article 103.  Article 102(2) also refers to  disqualification as a result of enforcement of the provisions of  the Tenth Schedule on account of defection.    Article 101 makes provision on the subject of vacation of  seats in the Houses of Parliament.  A person cannot be a  member of both Houses at the same time and if chosen as a  member of both Houses he is required to vacate his seat in one  or the other House.  Similarly a person cannot be a member  both of the Parliament and of a House of the Legislature of a  State.  If so elected to both the said bodies, he is required to  resign one seat and in case of default at the expiration of  period specified in the Rules made by the President, the seat  in Parliament is rendered vacant.  Article 101(4) empowers the  House to declare the seat of a member vacant if such member  remains absent from all meetings of the House for a period of  sixty days without permission of the House.  Article 101(3)  declares that on a member being found disqualified under  Article 102, his seat in the Parliament becomes vacant.  In  addition to these various modes of vacation of seats,  resignation of the seat by writing under the hand of the  member results in the seat becoming vacant upon acceptance

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of the resignation.   Article 99 requires every Member of Parliament to make  and subscribe the oath or affirmation prescribed in the Third  Schedule, before taking the seat.  Article104 prescribes a  penalty for sitting and voting in the Parliament before making  oath or affirmation or when not qualified or in the event of  being rendered disqualified.  , Article 330 and Article 331 make special provision for  reservation of seats in the House of the People for the  Scheduled Castes & Scheduled Tribes and the Anglo Indian  community. Article 85 vests in the President the power to summon  each House of Parliament for periodical sessions, the period  between two sittings whereof cannot exceed six months.  The  said Article also vests in the President the authority to  prorogue either House or dissolve the House of the People.   The above mentioned are some of the provisions of the  Constitution that collectively show that the privilege of  regulating own composition is not available to the Parliament. Part XV of the Constitution of India makes detailed  provisions on the subject of Elections to the Parliament and  State Legislatures. Article 326 makes adult suffrage as the  norm for these elections. The mandate of Article 324 is that it is  the Election Commission that controls the superintendence,  direction and control of elections. There is no power in any  legislature to fill its own vacancies or to issue writs for the  holding of by-elections etc. Articles 168 and 169 provide for the constitution of the  State Legislatures, with Parliament being vested with power to  substantially alter the very composition of the State  Legislatures by providing procedure following which bicameral  Legislature of a State may be altered to a unicameral one, or  vice versa. Article 170 and Article 171 deal with the  composition of the Legislative Assemblies and the Legislative  Councils respectively in the States. The maximum and the  minimum number of members are prescribed by law and the  ratio between the population of each constituency within the  State with the number of seats allotted to it being also  regulated by constitutional provisions, even the matter of re- adjustment of the territorial constituencies being controlled by  such authority (Delimitation Commission) and in such manner  as Parliament is to determine by law. The normal tenure of five  years for a State Legislative Assembly is prescribed by Article  172. The duration of the State Assembly and the mode and  manner of its dissolution are matters controlled by  constitutional prescriptions. Articles 173 and 191 prescribe the  qualifications and disqualifications for the membership of the  State Legislature; Article 174 creates a constitutional obligation  on the State Legislatures to meet at least once within a space of  six months, the power to summon the State legislature having  been given not to the House(s) but to the Governor Articles 327 and 328 empower the Parliament and the  State Legislatures, in that order, to make laws in connection  with the preparation of the electoral rolls, the delimitation of  constituencies and all other matters necessary for securing the  due constitution of the State Legislatures. Article 333 to 334  provide for the reservation of seats for the Scheduled Castes  and other communities in the State Legislatures again dealing  with the subject of composition and the character of the  membership thereof. Article 329 does bar the jurisdiction of courts but only in  matters of delimitation of constituencies or allotment of seats  thereto and reserves the jurisdiction to deal with election  disputes in favour of the authority prescribed by law, which  incidentally is High Court as per the Representation of People

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Act, 1951. It must, therefore, be held as beyond the pale of all doubts  that neither Parliament nor State Legislatures in India can  assert power to provide for or regulate their own constitution in  the manner claimed by the House of Commons in United  Kingdom. Having regard to the elaborate provision made  elsewhere in the Constitution, this power cannot be claimed  even, or least of all, through the channel of Articles 105 (3) or  294 (3). The question that immediately arises is as to whether the  power of expulsion is referable exclusively, or solely, to the  power of the House of Commons to determine its own  composition including the fitness of elected members to  remain members.  The Union of India has argued that there is no authority  for the proposition that the House of Commons derived its  power to expel a member only from its privilege to provide for  its own Constitution or composition. It is the stand taken by  the learned Counsel that at the highest it may be stated that  the expulsion of a member by the House of Commons can also  be a manifestation of its power to control its own composition  in addition to the privilege to control its own proceedings  including disciplining a member in a fit case by his expulsion. On the other hand, seeking support from commentaries  on Constitutional law of England, the petitioners point out that  the subject of expulsion is dealt with by all authorities as  inextricably linked with the determination of the legal  qualifications or disqualifications for the membership of the  House of Commons, that is the peculiar right to judge upon the  fitness or unfitness of anyone of its members to continue as a  legislator. This power, they submit, is essentially derived from  the privilege to provide for its own constitution and from no  other source. The petitioners submit that a holistic reading of the  works of English and Commonwealth authors reveals that all  of them treat expulsion solely as an expression of the ’Privilege  of Regulating Due Composition of the House’, and not as part  of privilege of regulating own proceedings or as an  independent penal power for punishing contempt. In fact, they  submit, the right of the House of Commons to regulate its own  proceedings was nothing more than a right of exclusive  cognizance of matters concerning the House to the exclusion  of the Courts’ jurisdiction. It was merely a jurisdictional bar,  and had nothing to do with the source of power that could be  legitimately exercised in Parliament. The argument is that if  the power to expel does not reside in the House of Commons  independent of the power to constitute itself, it would  naturally not be available to the Indian Legislatures. Mr. Andhyarujina and Mr.Subramanian, however,  submitted that the privilege of the House of Commons "to  provide for its own proper constitution" has a meaning with  regard to its privileges in the matter of elections to it, as  explained by May in three ways as noticed by this Court in UP  Assembly Case as mentioned above and which include  "determining the qualifications of its members in cases of  doubt". Referring to May’s 20th ed. Chapter 2 on elections p.  34 and Chapter 3 on Qualifications p. 520, it is argued that  this privilege is essentially related to electoral matters  including disqualifications to be elected. The "qualifications"  referred to are the qualifications of a member elected but  whom the House considers as not qualified to stand for  elections and sit in Parliament e.g. insolvents, minor, lunatics,  aliens, those charged with treason, peers etc. The House has a  right to determine the qualifications "in case of doubt" which  clearly shows that this statement does not mean unfitness to

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be a member by conduct.  The debate on the subject took the learned counsel to the  interpretation and exposition of law of Parliament as is found in  the maxim lex et Consuetudo Parliamenti as the very existence  of a parliamentary privilege is a substantive issue of  parliamentary law and not a question of mere procedure and  practice. The petitioners seek to draw strength from the  observations of this Court in UP Assembly Case referring to  the privilege of the House of Commons in regard to its own  constitution "expressed in three ways" that cannot be  claimed by the Indian Legislature. In this context,  however, questions have been raised as to whether the  privilege in regard to its own constitution is expressed by  the Commons only in the three ways mentioned above or  the three ways enumerated are merely illustrative of the  various other ways in which the House of Commons might  have expressed, claimed or enjoyed the said privilege.  Reference has been made to a distinct fourth way of  expression mentioned by Anson (in "Law and Custom of the  Constitution") with counter argument that the said fourth  way is a mere extension of the three ways and is really a  part thereof and not independent of the same. Anson in ’The Law and Custom of the Constitution’ [Fifth  edition (1922), Volume I, Chapter IV] deals with the privileges of  the House of Commons, dividing them broadly into two classes;  namely (i) privileges which are specifically asserted and demanded  of the Crown at the commencement of every Parliament and (ii)  the undoubted privileges of the House of Commons regarding  which no formal demand or request is made by the Speaker to the  Crown and which nevertheless are regularly asserted and enforced  by the House. The instances of the first category include the  privileges of free speech, of access to the Crown and of having the  most favourable construction put upon all their proceedings. The  instances of the second category include the fundamental privilege  claimed by the House of Commons to provide for and regulate its  own Constitution. At page 154, Anson makes the following observations:- "But there are other privileges not  specifically mentioned on this occasion  though regularly asserted and enforced  by the House. These are the right to  provide for the due constitution of its own  body, the right to regulate its own  proceedings, and the right to enforce its  privilege by fine or imprisonment or in  the case of its own Members by  expulsion."

While dealing with the privilege of the House of Commons  to provide for and regulate its own Constitution, Anson sub- divides the mode and manner of its exercise into four parts, the  first three of which correspond to what is expounded by May  (20th Edition). He deals in great detail (5th ed., p. 182) with  expulsion on account of unfitness to serve as the fourth sub- heading under the main heading of ’Right to provide for its  proper Constitution’ stating as under:-  "Unfitness to serve, a cause of  expulsion, Case may arise in which a  member of the House, without having  incurred any disqualification recognised  by law, has so conducted himself as to be  an unfit member of a legislative assembly.  For instance, misdemeanour is not a dis- qualification by law though it may be a

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disqualification in fact, and the House of  Commons is then compelled to rid itself of  such a member by the process of  expulsion. But expulsion, although it  vacates the seat of the expelled member,  does not create a disqualification; and if  the constituency does not agree with the  House as to the unfitness of the member  expelled, they can re-elect him. If the  House and the constituency differ  irreconcilably as to the fitness of the  person expelled, expulsion and re-election  might alternate throughout the  continuance of a Parliament." (Emphasis supplied)

Under the same sub-heading Anson also deals in detail  with the cases of expulsion of John Wilkes (1769) and  Walpole (1712). The case of Wilkes is cited to bring out the fact  that expulsion did not have the effect of creating a  disqualification. In spite of repeated expulsions by the House of  Commons, which even proceeded to declare his election void  thereby seeking to arbitrarily create a new disability depending  on its own opinion of his unfitness to be a member of this body,  Wilkes was elected to serve in the new Parliament and "took his  seat without question". From the passage extracted above, the petitioner  wants to infer that when expulsion is resorted to by the  House of Commons to rid itself of a member who may be  fully qualified but is found to be unfit to continue as a  member of the House, it is so done in exercise of the  privilege of the Commons to constitute itself. The petitioner  has stressed that such action can only be taken on a  member having been convicted for misdemeanor.  But then, one cannot lose sight of the words "for  instance" that precede the particular illustration of  exercise of power of expulsion by the House of Commons  in Anson. Clearly, what Anson seeks to convey is only that  it is within the power of the House of Commons to get rid  of such member as is considered to be unfit to continue to  be its member on any ground other than of conviction for  misdemeanor. It is the argument of the Petitioners that Anson treats  expulsion exclusively as a facet of the privilege of the House of  determining its own composition, and under no other head.  Anson explains (5th ed., p. 188) the nature and character of  this power, under the heading ’Power of inflicting punishment  for breach of Privilege’ in the following words:- "But expulsion is a matter which concerns  the House itself and its composition, and  amounts to no more than an expression of  opinion that the person expelled, is unfit  to be a member of the House of Commons.  The imposition of a fine would be an idle  process unless backed by the power of  commitment. It is, then the right of  commitment which becomes, in the words  of ’Sir E. May, ’the keystone of  Parliamentary privilege’. It remains to  consider how it is exercised and by what  right."  

What Anson seems to indicate here is that expulsion is  a sanction that goes beyond mere imposition of fine backed  by the power of commitment in case of default and also that

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expulsion undoubtedly affects the composition of the  House. He does not state that expulsion only concerns the  composition of the House. He is talking of possible  sanctions for gross misdemeanour against members and  not the qualifications requisite to become a member.  Further, Anson mentions the details of the privilege of the  right to constitute itself (5th ed., p. 177). He states, under a  separate heading "Right to provide for its proper  Constitution", as follows:- "One of these privileges is the right to  provide for the proper constitution of  the body of which it consists by issue of  writs when vacancies occur during the  existence of a parliament, by enforcing  disqualification for sitting in parliament,  and until 1868 by determining disputed  elections."

Noticeably, in this context, Anson would not mention  expulsion as one of the facets of the power of the House of  Commons to constitute itself. At the same time, one cannot lose sight of the fact that  the power of inflicting punishment for breach of privilege  has been separately dealt with even by Anson (5th ed., p.  177 onwards). The punishments which are awarded to  members or non-members are dealt with by Anson under  separate headings such as "admonition", "reprimand",  "commitment", "fine", and "expulsion". The discussion  under the last mentioned item in Anson starts with the  following passage (5th ed., p. 187): - "In the case of its own members the  House has a stronger mode of  expressing its displeasure. It can by  resolution expel a member."

The resolution of expulsion as an expression of  displeasure takes it beyond the realm of power of self  constitution. These paragraphs unmistakably show that  expulsion is not considered by Anson as exclusively arising  from the privilege of the House to provide for its own  Constitution. Halsbury in his "Laws of England" deals with the subject  of the "Privileges peculiar to the House of Commons". The  Petitioners argue that the power of expulsion is dealt with  directly as a facet of the privilege of determining due  composition of the House by Halsbury as well. This  conclusion, they submit, is fortified by the fact that Halsbury  deals with ’Penal Jurisdiction of the House’ distinctly in  paragraphs 909-913. While express reference is made to  reprimand, admonition, committal etc, expulsion is  conspicuous by its absence. Arguing that the privilege of the  House of Commons to provide for its own Constitution is "in  addition" to possessing complete control over its proceedings  including punishing its own members, reliance is placed, on  the other hand, by Mr. Andhyarujina, learned counsel for  Union of India on the following observations in Halsbury’s Law  of England (Fourth Edition, Vol.34, Para 1019):- "1019. Privilege of the House of  Commons in relation to its  constitution.  In addition to possessing a  complete control over the regulation of its  own proceedings and the conduct of its  members, the House of Commons claims  the exclusive right of providing, as it may  deem fit, for its own proper constitution."

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 The petitioners, in reply, submit that no such  significance can be attached to the words "In addition". They  argue that the paragraph, when viewed in the context of the  other paragraphs under Chapter 2 namely ’Privileges etc  claimed’, it becomes clear that the opening words ’In addition  to’ make no addition to the Respondent’s case. Paragraph  1007 deals with the right of the House of Commons to regulate  its own proceedings as ’Exclusive cognizance of proceedings’.  Bradlaugh also relied upon by the Union of India as part of  this argument is cited in this part. The scope of this privilege  is explained in the words, "This claim involves the exclusion of  review by any court or other external body of the application of  the procedure and practice of either House to the business  before it".  The petitioners submit that the right of the House to  regulate its own proceedings, of which expulsion is being  claimed an incident, is nothing more than a jurisdictional bar,  and not a positive source of any power. It is in this context  that Para 1019 opens with the words, "in addition to  possessing complete control over the regulation of its  proceedings and the conduct of its members". It refers only to  the exclusive jurisdiction exercised by the House of Commons  to the exclusion of the Courts. These words, according to the  petitioners, in no manner locate a new source of expulsion  power in the privilege of regulating its internal affairs. It is the  argument of the petitioners that Expulsion is explicitly dealt  with in paragraph 1026, which describes expulsion as being a  facet exclusively of the privilege of determining due  composition of the House. Para 1019 of Halsbury’s Law of England quoted above  corresponds to Para 905 in its third edition of Volume 28 (Part  7, Section 2), also under the heading "Privileges peculiar to the  House of Commons". As is seen in that edition, after making  particular reference to the claim of the House of Commons to  the exclusive right of providing as it deems fit "for its own  proper constitution",  Halsbury would mention the "Power of  expulsion" in the succeeding Para, as is noticeable in the  following extract:- "906. Power of expulsion. Although the  House of Commons has delegated its right  to be the judge in controverted elections,  it retains its right to decide upon the  qualifications of any of its members to sit  and vote in Parliament. If in the opinion of the House, therefore, a  member has conducted himself in a  manner which renders him unfit to serve  as a member of Parliament, he may be  expelled from the House, but, unless the  cause of his expulsion by the House  constitutes in itself a disqualification to  sit and vote in the House of Commons, it  is open to his Constituency to re-elect  him. The expulsion of a member from the  House of Commons is effected by means  of a resolution, submitted to the House  by means of a motion upon which the  question is proposed from the chair in the  usual way."

The petitioners seek to argue that Halsbury, in a later part  in its third edition of Volume 28 (Part 7, section 3), dealing with  the "Penal Jurisdiction of the two Houses" in matters of

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"Breaches of Privileges and Contempts", made express mention  of the sanctions that included reprimand, admonition and the  power to commit to imprisonment for contempt but omitted  reference to power of expulsion. The submission made is that  this omission renders doubtful the plea that expulsion from the  House of Commons is also within its penal jurisdiction and is  imposed as a measure of punishment for contempt. But then, it is pertinent to mention here that Para 906 of  the third edition has been omitted in the fourth edition.  The  subject of "Privilege of the House of Commons in relation to its  constitution" is followed by narration in separate Para (1020)  on the subject of "Power to fill vacant seat while the House of  Commons is sitting" and then by another Para (1021) on the  subject of "Power to fill vacant seat during prorogation or  adjournment" which appeared in earlier edition as Para  numbers 907 & 908 respectively.  The subject of the power of expulsion claimed by the  House of Commons stands shifted in the Fourth edition to a  later sub-part (3) under the heading "Jurisdiction of  Parliament" mainly dealing with the Penal jurisdiction, and  after narrating the position generally on the subject of  "Proceedings against offenders" and then referring to the "Power  to commit", "Period of imprisonment" and two other sanctions  namely "Reprimand and admonition", deals specifically with the  subject of power of expulsion of the House of Commons in Para  1026, which reads as under:- "1026. House of Commons’ Power of  expulsion. Although the House of  Commons has delegated its right to be the  judge in controverted elections (see para  1019 note 2 ante), it retains its right to  decide upon the qualifications of any of its  members to sit and vote in Parliament.

If in the opinion of the House a  member has conducted himself in a  manner which renders him unfit to serve  as a member of Parliament, he may be  expelled, but, unless the cause of his  expulsion by the House constitutes in  itself a disqualification to sit and vote in  the House, he remains capable of re- election."   Noticeably, the contents of Para 1026 of the Fourth  Edition are virtually the same as were reflected in Para 906 of  the Third Edition, the last sub-Para of the latter (relating to  the means adopted for effecting expulsion) being one major  omission.  What is significant, however, is the shifting of the  entire subject from close proximity to the privilege of the  House of Commons in relation to its Constitution, (as was the  position in earlier edition) to the mention of power of expulsion  now amongst the various sanctions claimed by the said  legislature as part of its penal jurisdiction.  The footnotes of  Para 1026 borrow from the elaboration made through  footnotes relatable to erstwhile Para 906 and clarify that the  jurisdiction formerly exercised by the House of Commons in  controverted elections has been transferred since 1868 to the  Courts of law and further that, as mentioned in May’s  Parliamentary Practice, members have been expelled from the  House of Commons upon various grounds, such as being  rebels, or having been guilty of forgery, perjury, frauds and  breaches of trusts, misappropriation of public money,  corruption in the administration of justice or in public offices  or in the execution of their duties as members of the House, or

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of contempts and other offences against the House itself.       Undoubtedly, the words "In addition" with which Para  1019 opens do relate to the House of Commons possessing "a  complete control over the regulation of its own proceedings"  but that is not the end of the matter.  The words are  significant also in the context of the second limb of the  opening clause of the said Para, that is to say the words "and  the conduct of its members".  We are therefore, unable to  accept the contention of the petitioners that Halsbury narrates  the power of expulsion as a power originating from the power  of the House of Commons to regulate its own proceedings only.   Rather, the new arrangement in the Fourth edition shows that  Halsbury treats the power of expulsion more as a power  arising out of the penal jurisdiction than from the power of self  composition. The "Constitutional History of England" by Professor F.W.  Maitland (first edition 1908 - reprinted 1941), based on his  lectures, is divided chronologically. In the last and most  contemporary ’Period V’ titled "Sketch of Public Law at the  Present Day (1887-8)", he deals with the House of Commons in  Part III. It has been opined by him that the earlier exercise of  privileges from the 14th to the 18th century may have fallen into  utter desuetude and indeed may furnish only an example of an  arbitrary and sometimes oppressive exercise of 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 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. The House’s own discretion is the  only limit to this power. Probably it would  not be exercised now-a-days, unless the  member was charged with crime or with  some very gross miss-behaviour falling  short of crime, and in general the House  would wait until he had been tried and  convicted by a court of law. In 1856 a  member who had been indicted for fraud  and who had fled from the accusation was  expelled."

Though Maitland also discusses expulsion along with the  other constituent elements of the House’s Privilege of  determining its own composition, we are unable to accept the  argument of the Petitioners that this exposition by Professor  Maitland shows that the power of expulsion was claimed by the  House of Commons it being only a part and parcel of its basic  privilege to control its own composition. During the course of  lectures, which is the format used here, Maitland referred to  expulsion alongside the privilege of the House of Commons to  control its own composition. But his narration reflects it was  the penal jurisdiction which was being highlighted in the  context of sanction of expulsion of members for misconduct.  Reference has also been made to the "Constitutional Law"  (Seventh edition) by Professors Wade and Phillips. On the  subject of the privileges of the House of Commons (Chapter 10),

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while elaborating the undoubted privilege to control its own  proceedings and to provide for its own proper Constitution,  reference is made to the power of the House to determine the  disputed elections also indicating it to be inclusive of the power  of expulsion. The authors write as under:- "Expulsion: The House of Commons still  retains the right to pronounce upon legal  qualifications for membership, and to  declare a seat vacant on such ground. The  House may, however, as in the case of  Mitchel [(1875), I.R. 9C.L. 217] refer such  a question to the Courts. The House of  Commons cannot, of course, create  disqualifications unrecognised by law, but  it may expel any member who conducts  himself in a manner unfit for  membership. A constituency may re-elect  a member so expelled, and there might, as  in the case of John Wilkes, take place a  series of expulsions and re-elections.  Expulsion is the only method open to the  House of dealing with a member convicted  of a misdemeanour."

It has been argued by the petitioners that Professors Wade  and Phillips plainly treat expulsion as inextricably linked with  privilege of determining own composition or as an inevitable  consequence, where the House takes the view that a member  has conducted himself in such a manner as to be unworthy of  membership of the legislature, an act not explainable as  expulsion by way of a measure of punishment for the offence of  contempt.  We are unable to agree. Wade & Phillips have treated the  subject of expulsion from different angles, not necessarily  leading to the conclusion that this power would always be  traceable to the power of self composition alone.  Expulsion on  account of conviction for misdeamonour refers to disciplinary  control and therefore part of penal jurisdiction which  undoubtedly is distinct from the power of the House to provide  for its own constitution. Professors Keir and Lawson in their work "Cases in  Constitutional Law" (fifth edition), while dealing with cases of  Parliamentary privileges (page 263) mention first the exclusive  jurisdiction over all questions which rise within the walls of the  House except perhaps in cases of felony, referring in this  context to case of Bradlaugh, and then to the personal  privileges (freedom of debate, immunity from civil arrest, etc.)  which attach to the members of Parliament, and lastly the  punitive power for contempt indicated in the following words at  page 268:- "(iii) The power of executing decisions in  matters of privilege by committing  members of Parliament, or any other  individuals, to imprisonment for contempt  of the House. This is exemplified in the  case of the Sheriff of Middlesex."

The petitioners seek to point out that expulsion of a  member is not included in the penal powers of the House of  Commons.  To our mind, default in this regard by the author  does not lead to the conclusion that expulsion was not one of  the sanctions available against a member to the House as part  of its disciplinary control in as much as other authorities on  the subject demonstrate it to be so.    "Constitutional Law" by E.W. Ridges (Eighth edition,

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p.65), as part of the discourse on the rights exercisable by the  House of Commons as flowing from its basic privilege of  providing for its due composition sets out the classification as  under:- "The Right to provide for its Due  Composition.  This comprises:  (a) The right of the Speaker to secure the  issue of a new writ on a vacancy occurring  during the existence of a Parliament either  by operation of some disqualification or on  the decision of a member elected in more  than one place which seat he will accept.   If in session, the writ is issued in  accordance with the order of the House.  If  not in session, the procedure is regulated  by certain statutes.; (b) The right to determine questions as to  the legal qualifications of its own  members, as in Smith O Brien’s case  (1849), O’ Donovan Rossa’s case (1870),  Mitchel’s case (1875), Michael Davitt’s  case (1882) and AA Lynch’s Case (1903),  these persons being disqualified as  undergoing sentence in consequence of  conviction for felony or treason.          In Mitchel’s Case the House declared  the seat vacant, but on his being elected a  second time they allowed the courts to  determine the question, and it was held  that the votes given to Mitchel were  thrown away and his opponent at the  election duly elected in consequence.  In  Michael Davitt’s case the House resolved  that the election was void, and a new writ  was accordingly issued. (c) The right to expel a member although  subject to no legal disqualification. So, in  1621, Sir R. Floyd was expelled merely  because he was a holder of the monopoly  of engrossing wills. Thus a member guilty  of misdemeanour does not forfeit his seat,  but may be expelled, thus vacating his  seat.  Or the House may itself decide that  a member’s acts merit expulsion, as in the  case of Sir R. Steele’s pamphlet, The  Crisis, in 1714, and of Wilkes’ North  Briton (No. 45) in 1763.  In Wilkes’ Case  (1769), Wilkes having been expelled and  re-elected, the House passed a resolution  declaring his election void, and the  member next on the poll duly returned. In  1782 the House declared this resolution  void, as being subversive of the rights of  the electors, and the proceedings in  connection with the election were  expunged from the journals.  The proper  course in such a case would therefore be  for the House to expel the member a  second time, if so disposed.  In Upper  Canada Mr. Mackenzie was thus four  House times expelled in the Parliament  from 1832.  In October, 1947, the House  expelled Mr. Garry Allighan, the member  for Gravesend, after a committee of

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privileges had declared him to be guilty of  gross contempt of the House in publishing  scandalous charges against other  members, such charges being, to his  knowledge, unfounded and untrue.  At the  same time the House also reprimanded  Mr. Evenlyn Walkden, the member for  Doncaster, on whose conduct a committee  of privileges had reported adversely.  The  House declared him guilty of  dishonourable conduct in having  disclosed to a newspaper information that  had come to him at a private and  confidential party meeting. and (d) Formerly    the House claimed from  the reign of Elizabeth and exercised the  right to determine questions of disputed  election,\005\005\005\005\005\005"

It is clear from the above extract that E.W. Ridges, though  referring to the power of expulsion under the heading "The  Right to Provide for its Due Composition", does not restrict it as  a power sourced from the right to provide for its own  composition but refers at length to cases where the power of  expulsion was used by the House of Commons in cases of  criminal conduct, gross misdemeanour and even in matters of  contempt.  We are therefore unable to subscribe to the  inference that the power of expulsion according to Ridges is  traceable only to the privilege of self composition.   Indeed, as pointed out by the Editor Sir Barnett Cocks  (also a former Clerk of the House of Commons) in the preface to  the 18th Edition (1971) of May in Parliamentary Practice, this  work would deal with the subject under various headings  including ’Elections’, ’Disqualification for Membership of Either  House’ etc. leading to overlapping. Be that as it may, while  discussing the subject of disqualification for the membership of  the House of Commons in Chapter III, it has been mentioned  that a person convicted of a misdemeanour is not thereby  disqualified for election or for sitting and voting, but when a  member is so convicted, the House might decide to expel him,  but such expulsion does not in itself create a disability or  prevent a constituency from re-electing the expelled member.  After having referred to this aspect of the expulsion, the editor  would make a cross-reference for further discussion on the  subject at page 130 included in Chapter IX of the work which  pertains to the penal jurisdiction of the House of Parliament  and their powers to inflict punishment for contempt. It has been argued by the learned Counsel for Union of  India that the exposition of law by May shows that the power of  expulsion was not sourced only from the power of the House of  Commons to provide for its own composition but also out of its  penal jurisdiction dealing with breaches of privileges and  contempt. He would refer in this context to observations at  page 127 that in cases of contempt committed in the House of  Commons by its members, the penalties of suspension from the  House and expulsion were also available and in some cases  they had been inflicted cumulatively.  The exposition by May in Chapter 8 titled "Other privileges  claimed for the Commons" (20th Edn.) under the heading  "Privilege of the House of Commons with respect to its own  constitution", according to the petitioners, treated expulsion as  an example of the power of the House of Commons to regulate  its own constitution, relatable to the matters of disqualification  for membership. Though he would deal with the subject of  expulsion at length with other punitive powers of the House, in

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as much as the results are equally grave and adverse to a  sitting member, the petitioners argue that, May would  categorically explain that expulsion is neither disciplinary nor  punitive but purely a remedial measure intended to rid the  house of persons who in its opinion are unfit for its  membership. The petitioners refer to the testimony given by Sir Barnett  Cocks during inquiry before a Committee of the House of  Commons. He had been specially called by the Committee of  Privileges of the House of Commons in the case of Rt. Hon.  Quintin Hogg, Lord President of the Council and Secretary of  State for Education and Science and examined about the  essence and the real nature of this parliamentary Privilege. The  Report dated 16th June 1964 of the Committee indicates that  when questioned by the Attorney General as to the nature of  power exercised by the House of Commons treating the  behaviour of Asgill as either a contempt of the House or a  breach of privilege he agreed that the House of Commons  having complete control over its own membership was merely  exercising its said power. He referred to Erskine May wherein it  is illustrated as one of the privileges of the House to control its  own membership and to expel members who are unworthy of  membership, to control its own composition. When the Chairman Mr. Salwyn Llyod, referred to case of  Garry Allignan’s and asked for clarity as to whether there could  be a situation of expulsion simply for disreputable conduct  having nothing to do with privilege or contempt but because the  House regarded one of its members as unfit to sit in it, Sir  Barnett Cocks opined, "I think a Member can be expelled for  conduct which need not be related to one of three or four  existing Privileges", this in answer to query from Sir Harold  Wilson wherein he had mentioned other Privileges, one being  the power to determine its own membership. The Petitioners have submitted that the above mentioned  opinion rendered by Sir Barnett Cocks in House of Commons  also demonstrates that he would also regard the power of  expulsion essentially as another facet of the basic  parliamentary privilege of the House of Commons to provide for  its own constitution and determine its membership, which had  been used by that legislature to expel members for undefined  and unspecified reasons completely and wholly unrelated to  any breach of its privilege or its contempt and thus not as a  punitive measure of express punishment for contempt of the  House.  May, in 20th Edition dealt with the "Penal Jurisdiction of  the Houses of Parliament" in separate chapter (Chapter 9), and  after dealing with the power to inflict punishment for contempt  and referring to various sanctions including that of  commitment, fine, reprimand & admonition, talked about the  power of "Expulsion by the Commons"   at page 139, where he  would  state thus:- "The purpose of expulsion is not so much  disciplinary as remedial, not so much to  punish Members as to rid the House of  persons who are unfit for membership. It  may justly be regarded as an example of  the House’s power to regulate its own  constitution. But it is more convenient to  treat it among the methods of punishment  at the disposal of the House."

In the 23rd Edition of May’s Parliamentary practice, the  discourse on the subject of "Privilege of the House of  Commons with respect to its own constitution" has been  shifted to Chapter 5 titled "The privilege of Parliament" and

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appears at page 90 onwards.  As noticed earlier, the paragraph  appearing in the 20th Edition wherein it was mentioned that  the privilege to provide for its proper constitution was  expressed in three ways by the House of Commons has been  omitted.  It is significant that the power of expulsion is  mentioned even in the 23rd Edition, elaborately in Chapter 9  that deals with "Penal Jurisdiction of both Houses", alongside  the other such powers of punishment including committal,  fines, reprimand and admonition.  The observation that the  purpose of expulsion is "not so much disciplinary as remedial,  not so much to punish Members as to rid the House of  persons who are unfit for membership" is also missing.   We are unable to accept the contentions of the petitioners  that the source of Power of Expulsion in England was the  privilege of the House of Commons to regulate its own  constitution or that the source of the power is single and  indivisible and cannot be traced to some other source like  independent or inherent penal power.  The right to enforce its privileges either by imposition of  fine or by commitment to prison (both of which punishments  can be awarded against the members of the House as well as  outsiders) or by expulsion (possible in case of members only)  is not a part of any other privilege but is by itself a  separate and independent power or privilege. To enforce a  privilege against a member by expelling him for breach of  such privilege is not a way of expressing the power of the  House of Commons to constitute itself. Though expulsion can be, and may have been, resorted  to by the House of Commons with a view to preserve or  change its constitution, it would not exclude or impinge  upon its independent privilege to punish a member for  breach of privilege or for contempt by expelling him from  the House. Expulsion concerns the House itself as the  punishment of expulsion cannot be inflicted on a person  who is not a member of the House. As a necessary and  direct consequence, the composition of the House may be  affected by the expulsion of a member. That would not,  however, necessarily mean that the power of expulsion is  exercised only with a view, or for the purpose of regulating  the composition of the House. One of the three ways of  exercising the privilege of the Commons to constitute itself  as mentioned by May (in 20th Edition) can undoubtedly, in  certain circumstances, be expressed by expelling a  member of the House. But this does not mean that the  existence and exercise of the privilege of expelling a  member by way of punishment for misconduct or contempt  of the House stands ruled out. The power of self  composition of the House of Commons is materially  distinct and meant for purposes other than those for  which the House has the competence to resort to  expulsion of its members for acts of high misdemeanour.  The existence of the former power on which expulsion can  be ordered by the House of Commons cannot by itself  exclude or abrogate the independent power of the House to  punish a member by expelling him, a punishment which  cannot be inflicted on a non-member. Expulsion being regarded as "justly as an example of the  privilege of the House of Commons to regulate its own  Constitution" by May does not mean that the power to expel is  solely derived from the privilege to regulate its own  Constitution or that without the privilege of providing for its  own Constitution, the House could not expel a member.  The  latter view would be contrary to the established position that  the House has a right as part of its privilege to have complete  control over its proceedings including the right to punish a

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member by expulsion who by his conduct interferes with the  proper conduct of Parliament business. Power to punish for Contempt   The next question that we need to decide is whether the  Indian parliament has the power of expulsion in relation to the  power to punish for contempt. It is the contention of the  petitioners that the Parliament cannot claim the larger  punitive power to punish for contempt. It has been argued on behalf of the Petitioners that the  power to punish for contempt is a judicial power enjoyed by  the House of Commons in its capacity as a High Court and,  therefore, the same power would not be available to the  legislatures in India. According to the Petitioners, this position  has already been laid down in the case of UP Assembly. In  addition, they would also place reliance on various decisions  from other jurisdictions which make a distinction between  punitive contempt powers - essentially judicial in nature and  powers for self-protection - incidental to every legislative body.   According to the Petitioners, the full, punitive power of the  House of Commons is not available; rather the legislatures in  India can exercise only limited remedial power to punish for  contempt. On the other hand, the Respondents have argued that  the power to punish for contempt is available to the  Parliament in India as they are necessary powers. It was  submitted that the power to punish for contempt is a power  akin to a judicial power and it is available to the Parliament  without it being the High Court of Record. Further, it was  submitted that the Parliament has all such powers as are  meant for defensive or protective purposes. Thus, the questions that need to be addressed are as to  whether the legislatures in India have the power to punish for  contempt and, if so, whether there are any limitations on such  power.   The powers, privileges and immunities of Parliament  under Clause 3 of Article 105 are other than those covered by  earlier two clauses. Since powers thus far have not been  defined by Parliament by law, they are such as vested in the  House of Commons at the commencement of the Constitution. The first question, therefore, is whether this source itself  incorporates any restrictions. Article 105(3) in this respect  seems plain and unambiguous.  Upon a reading of the clause,  it seems clear that the article itself envisages no restrictions  regarding the powers that can be imported from the House of  Commons. It only states that the powers of the Indian  parliament are those of the House of Commons in the United  Kingdom without making any distinction regarding the nature  of the power or its source. Hence the argument on behalf of  the respondents that it would be alien to the Constitution to  read qualifying words into this article that are not present in  the first place and not intended to be included. The respondents have referred to the evolution of the  jurisprudence on the subject in other jurisdictions, in  particular where there have been legislated provisions in  respect of colonial legislatures, in which context it has been  held that such legislative bodies enjoy all the powers of the  House of Commons, including those the said House had  enjoyed in its capacity as a Court of Record. Through an enactment establishing a Colonial  Constitution, the parliament of the Colony of Victoria was  empowered to define the privileges and powers it should  possess, which were declared not to exceed those possessed at  the date of the enactment by the British House of Commons.  The case of Dill v. Murphy [1864 (15) ER 784] revolved  around the powers of the Legislative Assembly of Victoria.  

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Such powers were held to include the power to punish for  contempt and in the light of the enactment the distinction  between the powers of the House of Commons as a legislative  body and those as a High Court was not applied to weed out  the ’judicial powers’, this position being upheld in an appeal to  the Privy Council. Williams J. held:- "On a closer investigation of all the  authorities and considering the  comprehensive nature of the 35th section,  \005no restriction as the House of  Commons as a deliberative Assembly, but  of the House of Commons generally, I am  led to the conclusion\005that the powers  and privileges of Commons House of  Parliament whether obtained by the lex et  consuetudo Parliamenti or not, whether  as a deliberative Assembly or as a  component part of the Highest Court in  the realm are claimable by the Legislative  Assembly in this Colony." (Emphasis supplied)

Section 20 of the law establishing the Nova Scotia House  of Assembly provided it with all the powers of the House of  Commons and Section 30 provided that it shall have the same  powers of a Court of Record. The case of Fielding v. Thomas  [1896 AC 600] involved issues concerning the powers of the  said legislature conferred upon it through statutory provisions.  In this case, holding that the House of Assembly’s action was  legal based only on section 20, it was held:- "If it was within the powers of the Nova  Scotia Legislature to enact the provisions  contained in s.20, and the privileges of  the Nova Scotia Legislature are the same  as those of the House of Commons of the  United Kingdom as they existed at the  date of passing of the British North  America Act, 1867, there can be no doubt  that the House of Assembly had complete  power to adjudicate that the respondent  had been guilty of a breach of privilege  and contempt and to punish that breach  by imprisonment. The contempt  complained of was a willful disobedience  to a lawful order of the House to attend." (Emphasis supplied)

The principle that has been followed in the cases  mentioned above is that where the legislature has the power to  make an enactment and it chooses to have the powers of the  House of Commons, all the powers of the House of Commons,  regardless of which capacity they were enjoyed in, transfer  unto the legislature. This is to say that once there is an  express grant of such powers, there is no justification for  excluding certain powers.   Rooting for the case that the extent of powers  incorporated in the Constitution is of wide amplitude, reliance  has been placed on the following observations of this Court in  the case of Pandit Sharma (I):- "It is said that the conditions that  prevailed in the dark days of British  history, which led to the Houses of  Parliament to claim their powers,  privileges and immunities, do not now  prevail either in the United Kingdom or in

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our country and that there is, therefore,  no reason why we should adopt them in  these democratic days. Our Constitution  clearly provides that until Parliament or  the State Legislature, as the case may be,  makes a law defining the powers,  privileges and immunities of the House,  its members and Committees, they shall  have all the powers, privileges and  immunities of the House of Commons as  at the date of the commencement of our  Constitution and yet to deny them those  powers, privileges and immunities, after  finding that the House of Commons had  them at the relevant time, will be not to  interpret the Constitution but to re-make  it. Nor do we share the view that it will  not be right to entrust our Houses with  these powers, privileges and immunities,  for we are well persuaded that our  Houses, like the House of Commons, will  appreciate the benefit of publicity and will  not exercise the powers, privileges and  immunities except in gross cases."  (Emphasis supplied)

Reading this judgment and constitutional provisions, it  does appear that the Constitution contains in Article 105(3) an  express grant that is subject to no limitations on the powers of  the Parliament. The petitioners, however, contend that the  argument of availability of all the powers and privileges has  already been authoritatively rejected in UP Assembly Case by  this Court and reliance is placed on the following  observations:- "Mr. Seervai’s argument is that the latter  part of Art. 194(3) expressly provides that  all the powers which vested in the House  of Commons at the relevant time, vest in  the House. This broad claim, however,  cannot be accepted in its entirety,  because there are some powers which  cannot obviously be claimed by the  House\005\005\005\005.. 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."  (Emphasis supplied)

       It does not follow from rejecting the broad claims and  holding that there are some powers of House of Commons  which cannot be claimed by Indian legislatures, that the power  of expulsion falls in that category.  A little later we will show  the circumstances which led to UP Assembly case and its  ratio on the point in issue. On the specific issue of the power to punish for  contempt, learned Counsel have relied on various observations  made in the aforementioned case in support of the proposition  that the legislatures in India are not a Court of Record.  It has  been submitted that, relying on the logic of case of UP  Assembly, any privilege that is found to be part of the ’lex et  consuetudo parliamenti’ would be unavailable to the Indian  legislatures, because the Indian legislatures cannot claim to be  Courts of Record. In line with the same reasoning, it has been

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argued that all that the Indian Legislatures can claim is a  limited power to punish for contempt.   Reliance has been placed on several English cases,  namely Keilley v. Carson [(1842) 4 Moo. PC 63], Fenton v.  Hampton [(1858) 11 MOO PCC 347], Doyle v. Falconer  [1865-67) LR 1 PC 328], and Barton v. Taylor [(1886) 11  App Cases 197].  These cases refer to the distinction between  the punitive powers of contempt and the self-protection  powers.  Significantly, while the first two cases related to  conduct of outsiders, the latter two cases related to the  conduct of sitting members.  These four cases hold that the  other legislatures, that is to say bodies other than the House  of Commons, can only claim the protective powers of the  House. This distinction has been explained in Doyle as  follows:- "It is necessary to distinguish between a  power to punish for a contempt, which is  a judicial power, and a power to remove  any obstruction offered to the  deliberations or proper action of a  Legislative body during its sitting, which  last power is necessary for self- preservation."

It has been submitted on behalf of the petitioners that  Parliament can only claim the protective, limited power to  punish for contempt, that also if committed ex facie. It has  been argued that this limited self-protective power can never  include power of expulsion, as expulsion is not necessary for  the protection of the House. A distinction between expulsion  and exclusion is sought to be brought out to argue that the  measure of exclusion would be sufficient for the protection of  the dignity of the House. On the other hand, for the respondent it was submitted  that the Privy Council cases referred to above are irrelevant in  as much as they laid down the powers of subordinate or  colonial legislatures, whereas Parliament in India is the  supreme legislative body and the limitations that bind such  subordinate bodies as the former category cannot bind the  latter.   The petitioners, in answer to the above argument, have  referred to the decision of US Supreme Court in the case of  Marshall v. Gordon [243 U.S. 521, 541 (1917)].  The case  related to the contempt powers of the US Congress. The  Congress had charged a District Attorney for contempt. The  question before the Court was as to whether Congress had the  power to do so without a trial and other legal requirements.   The Court held that the US Congress did not have the  ’punitive’ power of contempt.  At page 887, the US Supreme  Court observed:- "There can be no doubt that the ruling in  the case just stated upheld the existence  of the implied power to punish for  contempt as distinct from legislative  authority and yet flowing from it. It thus  becomes apparent that from a doctrinal  point of view the English rule concerning  legislative bodies generally came to be in  exact accord with that which was  recognized in Anderson v. Dunn, supra, as  belonging to Congress, that is, that in  virtue of the grant of legislative authority  there would be a power implied to deal  with contempt in so far as that authority  was necessary to preserve and carry out

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the legislative authority given." \005.

"Without undertaking to inclusively  mention the subjects embraced in the  implied power, we think from the very  nature of that power it is clear that it  does not embrace punishment for  contempt as punishment, since it rests  only upon the right of self-preservation,  that is, the right to prevent acts which in  and of themselves inherently obstruct or  prevent the discharge of legislative duty  or the refusal to do that which there is an  inherent legislative power to compel in  order that legislative functions may be  performed."

Placing reliance on the above case, it was also argued by  the petitioners that unless India tends to be "terribly  arrogant", one cannot place the Indian Parliament on a higher  footing than the Congress of the United States.  In our view,  there is no place here for arguments of sentiments. It is not  the comparative superiority of the Indian parliament with  respect to either the Colonial Legislatures or the US Congress  that determines the extent of its powers. We would rather be  guided by our constitutional provisions and relevant case law.   The respondents have referred to the case of Yeshwant  Rao v. MP Legislative Assembly [AIR 1967 MP 95], decided  by the Madhya Pradesh High Court. This case involved the  expulsion of two members of the State Legislative Assembly for  obstructing the business of the House and defying the Chair.   This expulsion was challenged in the High Court.  It was  argued that the House had no power to expel as the power to  expel in England was part of the power to regulate its own  constitution, which was not available to the House in India. It  was also argued by the Petitioners in that case that the  resolutions expelling them were passed without giving them an  opportunity to explain the allegations. The High Court  dismissed the petition holding that it had the limited  jurisdiction to examine the existence of the power to expel and  found that the House did in fact have this power. Noticeably, in this case, the High Court did not look into  the power to punish for contempt. It held the Legislative  Assembly’s power to expel its member to be an inherent power  for "its protection, self-security and self-preservation and for  the orderly conduct of its business." The High Court was of the  view that:- "The House of Commons exercises the  power of expelling a member not because  it has the power to regulate its own  constitution but because it finds it  necessary for its proper functioning,  protection and self-preservation to expel a  member who has offered obstruction to  the deliberations of the House during its  sitting by his disorderly conduct or who  has conducted himself in a manner  rendering him unfit to serve as a member  of the Parliament."  

The case of Hardwari Lal v. Election Commission of  India etc. [ILR (1977) P&H 269] decided by a full bench of  Punjab & Haryana High Court also related to expulsion of a

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sitting member from the legislative assembly of the State of  Haryana.  The majority decision in that case held that the  Legislative Assembly does not have the power to expel. The  ratio in that case was identical to the arguments of the  petitioners before us in the present case. The minority view in  the case was, however, that the Legislative Assembly did have  the power to expel as well as the power to punish for  contempt. This view has been commended by the respondents  to us as the correct formulation of law. With respect to the  power to punish for contempt, the minority view has  distinguished the case of UP Assembly on the ground that it  dealt only with non-members and held that the fact that the  power to punish for contempt was sourced from the judicial  functions of the House of Commons is wholly irrelevant. The  minority view says:  "Indeed the source from which the House  of Parliament derives a power to punish  for its contempt may not be in dispute at  all, but it must be remembered that  "House of Parliament" and "House of  Commons’ are not synonyms. As already  stated the House of Parliament consists  of the House of Commons, the House of  Lords and the King Emperor (or the  Queen as the case may be).  Be that as it  may, if we were to go to the source from  which the Commons derive any particular  power or privilege and then to decide  whether that particular source is or is not  available to the Indian Legislatures in  respect of that privilege, it would be  adopting a course which is wholly foreign  to the language of Article 194(3). Such an  enquiry would be relevant only if we were  to read into Article 194(3) after the words  "at the commencement of this  Constitution", the words "other than  those which are exercised by the  Commons as a descendant of the High  Court of Parliament". There is no  justification at all for reading into Article  194(3) what the Constituent Assembly  did not choose to put therein. Adopting  such a course would, in my opinion, not  be interpreting clause (3) of Article 194,  but re-writing it."  (Emphasis supplied)

The case of K. Anbashagan v. Tamil Nadu Legislative  Assembly [AIR 1988 Mad 275] had similar dispute  concerning powers of the State legislative assembly in Tamil  Nadu. The view taken by the Madras High Court is similar to  the one in Yeshwant Rao decided by the Madhya Pradesh  High Court and the minority view in the Hardwari Lal  decided by Punjab & Haryana High Court. It was held by  Madras High Court that the power of expulsion is available as  a method of disciplining members. However, at no point did  the Court examine the power to punish for contempt. The  Court upheld the power of expulsion independently of the  contempt jurisdiction. The petitioners referred to the case of UP Assembly,  particularly the passages quoted hereinafter:- "In considering the nature of these  privileges generally, and particularly the  nature of the privilege claimed by the

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House to punish for contempt, it is  necessary to remember the historical  origin of this doctrine of privileges. In this  connection, May has emphasised that the  origin of the modern Parliament consisted  in its judicial functions."   \005. "In this connection, it is essential to bear  in mind the fact that the status of a  superior Court of Record which was  accorded to the House of Commons, is  based on historical facts to which we  have already referred. It is a fact of  English history that the Parliament was  discharging judicial functions in its early  career. It is a fact of both historical and  constitutional history in England that the  House of Lords still continues to be the  highest Court of law in the country. It is a  fact of constitutional history even today  that both the Houses possess powers of  impeachment and attainder. It is obvious,  we think, that these historical facts  cannot be introduced in India by any  legal fiction. Appropriate legislative  provisions do occasionally introduce legal  fiction, but there is a limit to the power of  law to introduce such fictions. Law can  introduce fictions as to legal rights and  obligations and as to the retrospective  operation of provisions made in that  behalf; but legal fiction can hardly  introduce historical facts from one  country to another."  \005.

"The House, and indeed all the Legislative  Assemblies in India never discharged any  judicial function and constitutional  background does not support the claim  that they can be regarded as Courts of  Record in any sense. If that be so, the  very basis on which the English Courts  agreed to treat a general warrant issued  by the House of Commons on the footing  that it was a warrant issued by a superior  Court of Record, is absent in the present  case, and so, it would be unreasonable to  contend that the relevant power to claim  a conclusive character for the general  warrant which the House of Commons,  by agreement, is deemed to possess, is  vested in the House. On this view of the  matter, the claim made by the House  must be rejected."  (Emphasis supplied)

It has been argued that in the face of above-quoted view  of this Court, it cannot be allowed to be argued that that all  the powers of the House of Commons that were enjoyed in its  peculiar judicial capacity can be enjoyed by the legislatures in  India. In our considered view, such broad proposition was  neither the intended interpretation, nor does the judgment  support such a claim.  In above context, it is necessary to recognize the special

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circumstances in which case of UP Assembly arose.  It  involved the resolutions of the Legislative Assembly in Uttar  Pradesh finding that not only had Keshav Singh committed  contempt of the House, but even the two Judges of the High  Court, by admitting Keshav Singh’s writ petition, and indeed  his Advocate, by petitioning the High Court, were guilty of  contempt of the legislature. The resolution further ordered the  Judges of the High Court to be brought before the House in  custody. In response to this resolution, petitions were filed by  the Judges under Article 226. In the wake of these unsavoury  developments involving two organs of the State, the President  of India decided to make a reference to the Supreme Court  under Article 143(1) formulating certain questions on which he  desired advice. Significantly, the scope of the case was extremely narrow  and limited to the questions placed before the Court. The  Court noticed the narrow limits of the matter in following  words:- "During the course of the debate, several  propositions were canvassed before us  and very large area of constitutional law  was covered. We ought, therefore, to  make it clear at the outset that in  formulating our answers to the questions  framed by the President in the present  Reference, we propose to deal with only  such points as, in our opinion, have a  direct and material bearing on the  problems posed by the said questions. It  is hardly necessary to emphasise that in  dealing with constitutional matters, the  Court should be slow to deal with  question which do not strictly arise. This  precaution is all the more necessary in  dealing with a reference made to this  Court under Art. 143(1)."  (Emphasis supplied)

The question of the power to punish for contempt was  never even seriously contested before the court. Rather, while  discussing the various contentions raised before it, the Court  noted:- "It is not seriously disputed by Mr.  Setalvad that the House has the power to  inquire whether its contempt has been  committed by anyone even outside its  four-walls and has the power to impose  punishment for such contempt; but his  argument is that having regard to the  material provisions of our Constitution, it  would not be open to the House to make  a claim that its general warrant should be  treated as conclusive."  (Emphasis supplied)

Thus, in the case of UP Assembly the Court was mainly  concerned with the power claimed by legislature to issue  general warrant and conclusive character thereof. There was  no challenge in that case to the power to punish for contempt,  much less the power to expel, these issues even otherwise  being not inherent in the strict frame of reference made to the  Court. Indeed, the thrust of the decision was on the examination  of the power to issue unspeaking warrants immune from the  review of the Courts, and not on the power to deal with

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contempt itself. A close reading of the case demonstrates that  the Court treated the power to punish for contempt as a  privilege of the House. Speaking of the legislatures in India, it  was stated:- "there is no doubt that the House has the  power to punish for contempt committed  outside its chamber, and from that point  of view it may claim one of the rights  possessed by a Court of Record" (Emphasis supplied)

Speaking of the Judges’ power to punish for contempt,  the Court observed:-  "We ought never to forget that the power  to punish for contempt large as it is,  must always be exercised cautiously,  wisely and with circumspection. Frequent  or indiscriminate use of this power in  anger of irritation would not help to  sustain the dainty or status of the court,  but may sometimes affect it adversely.  Wise Judges never forget that the best  way to sustain the dignity and status of  their office is to deserve respect from the  public at large by the quality of their  judgments, the fearlessness, fairness and  objectivity of their approach, and by the  restraint, dignity and decorum which  they observe in their judicial conduct. We  venture to think that what is true of the  Judicature is equally true of the  Legislatures."  (Emphasis supplied)

It is evident, therefore, that in the opinion of the Court in  case of UP Assembly, legislatures in India do enjoy the power  to punish for contempt. It is equally clear that the while the  fact that the House of Commons enjoyed the power to issue  unspeaking warrants in its capacity of a Court of Record was  one concern, what actually worried the Court was not the  source of the power per se, but the ’judicial’ nature of power to  issue unspeaking warrant insofar as it was directly in conflict  with the scheme of the Constitution whereby citizens were  guaranteed fundamental rights and the power to enforce the  fundamental right is vested in the Courts. It was not the power  to punish for contempt about which the Court had  reservations. Rather, the above-quoted passage shows that  such power had been accepted by the Court. The issue  decided concerned the non-reviewability of the warrant issued  by the legislature, in the light of various constitutional  provisions. Last, but not the least, there are many differences  between the case of UP Assembly and the one at hand.  The  entire controversy in the former case revolved around the  privileges of the House in relation to the fundamental rights of  a citizen, an outsider to the House. The decision expressly  states that the Court was not dealing with internal  proceedings, nor laying down law in relation to members of the  House.  In the words of the Court:- "The obvious answer to this contention is  that we are not dealing with any matter  relating to the internal management of  the House in the present proceedings. We  are dealing with the power of the House  to punish citizens for contempt alleged to

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have been committed by them outside the  four-walls of the House, and that  essentially raises different  considerations."

XXXXXXX

"In conclusion, we ought to add that  throughout our discussion we have  consistently attempted to make it clear  that the main point which we are  discussing is the right of the House to  claim that a general warrant issued by it  in respect of its contempt alleged to have  been committed by a citizen who is not a  Member of the House outside the four- walls of the House, is conclusive, for it is  on that claim that the House has chosen  to take the view that the Judges, the  Advocate, and the party have committed  contempt by reference to the conduct in  the habeas corpus petition pending  before the Lucknow Bench of the  Allahabad High Court."  (Emphasis supplied)

In the light of the above, we are of the opinion that the  ratio of case of UP Assembly, which was decided under  significantly different circumstances, cannot be interpreted to  have held that all the powers of the House of Commons  enjoyed in its capacity as a Court of Record are unavailable to  the Indian parliament, including the power to punish for  contempt. The view that we are taking is in consonance with the  decisions of this court in the two cases of Pandit Sharma. In  Pandit Sharma (I), this Court upheld the privilege of the  legislative assembly to prevent the publication of its  proceedings and upheld an action for contempt against a  citizen. This decision was reiterated by a larger bench of this  Court in Pandit Sharma (II), when it refused to re-examine  the issues earlier answered in Pandit Sharma (I).  The cases  involved contempt action by the legislature against an outsider  curtailing his fundamental rights, and yet the Court refused to  strike down such action. This view finds further strength from the case of State of  Karnataka v. Union of India [(1977) 4 SCC 608]. This case  involved a challenge to the appointment of a commission of  enquiry against the Chief Minister and other Ministers of  Karnataka.  In this context, the Court examined the ’powers’ of  the state in relation to Article 194 (3). It would be fruitful to  extract the relevant portions of the decision. They are as  follows:- "\005But, apart from an impeachment,  which has become obsolete, or  punishment for contempts of a House,  which constitute only a limited kind of  offences, the Parliament does not punish  the offender. For establishing his legal  liability recourse to ordinary courts of law  is indispensable."  

"It is evident, from the Chapter in which  Article 194 occurs as well as the heading  and its marginal note that the "powers"  meant to be indicated here are not

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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 in England for  all purposes. For example, it could not be  contended that each House of a State  Legislature has the same share of  legislative power as the House of  Commons has, as a constituent part of a  completely sovereign legislature. Under  our law it is the Constitution which is  sovereign or supreme. The Parliament as  well as each Legislature of a State in  India enjoys only such legislative powers  as the Constitution confers upon it.  Similarly, each House of Parliament or  State Legislature has such share in  Legislative power as is assigned to it by  the Constitution itself. The powers  conferred on a House of a State  Legislature are distinct from the  legislative powers of either Parliament or  of a State legislature for which, as already  observed, there are separate provisions in  our Constitution. We need not travel  beyond the words of Article 194 itself,  read with other provisions of the  Constitution, to clearly reach such a  conclusion."

"There is, if we may say so, considerable  confusion still in the minds of some  people as to the scope of the undefined  "powers, privileges and immunities" of a  House of a State Legislature so much so  that it has sometimes been imagined that  a House of a State legislature has some  judicial or quasi-judicial powers also,  quite apart from its recognised powers of  punishment for its contempts or the  power of investigations it may carry out  by the appointment of its own  committees\005."  

"\005.A House of Parliament or State  Legislature cannot try anyone or any  case directly, as a Court of Justice can,  but it can proceed quasi-judicially in  cases of contempts of its authority and  take up motions concerning its  "privileges" and "immunities" because,  in doing so, it only seeks removal of  obstructions to the due performance of  its legislative functions. But, if any  question of jurisdiction arises as to  whether a matter falls here or not, it has  to be decided by the ordinary courts in  appropriate proceedings. For example,  the jurisdiction to try a criminal offence,  such as murder, committed even within  a House vests in ordinary criminal  courts and not in a House of Parliament  or in a State legislature\005."  (Emphasis supplied)

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The passage quoted above makes it further clear that the  only limitation the Court recognizes in the power of the  legislatures to punish for contempt is that such contempt  powers cannot be used to divest the ordinary courts of their  jurisdiction. This is in tune with the decision in the case of UP  Assembly.  More over, when the Court spoke of the use of  contempt power to remove obstructions to the functioning of  the House, it did not read into it any limitations on the power  to punish for contempt. Rather, the general purpose of its  invocation was recognized. Thus, we are unable to accept the contention that the  power to punish for contempt is denied to the Indian  legislatures as they are not Courts of Record. However, we  would like to emphasize that the power to punish for contempt  of the House of Commons is a very broad power,  encompassing a variety of other powers. The case of UP  Assembly examined only one aspect of that power \026 to issue  unspeaking warrants \026 and held that such a power is  unavailable under our constitution.  What we are presently  examining in the cases at hand is another aspect of this broad  contempt power \026 the power to expel a sitting member.  While  we hold that the power to punish for contempt in its totality  has not been struck down by decision in UP Assembly, we do  not intend to rule on the validity of the broad power to punish  for contempt as a whole. The different elements of this broad  contempt power will have to be decided on an independent  scrutiny of validity in appropriate case.  We would restrict  ourselves to the power to expel a member for contempt  committed by him. Having found, however, that there is no bar  on reading the power to punish for contempt in Article 105(3),  it is possible to source the power of expulsion through the  same provision.   There is no contest whatsoever to the plea that the House  of Commons did in fact enjoy the power of expulsion at the  commencement of the Constitution. A number of instances  have been quoted even by the petitioners, including those  occurring around the time of the commencement of the  Constitution. To mention some of them, notice may be taken  of case of member named Horatio Bottomley, expelled in 1922  after he was convicted for fraudulent conversion of property;  case of Gary Allighan, expelled in 1947, for gross contempt of  House after publication of an article accusing members of the  House of insobriety and taking fees or bribe for information;  and, the case of Peter Baker, expelled in 1954 from the House  after being convicted and sentenced for forgery. Although the examples of expulsion in this century by  the House of Commons are few, the relevant time for our  purposes is the date of the commencement of the Constitution.   The last two cases occurring in 1947 and 1954 clearly  establish that the power to expel was in fact a privilege of the  House of Commons at the commencement of our Constitution.  Thus, from this perspective, the power of expulsion can be  read within Article 105(3).  We have already held that this  power is not inconsistent with other provisions of the  Constitution. We may also briefly deal with the other possible sources  of the power of expulsion.       

Plea of limited remedial power of Contempt   The next scrutiny concerns the anxiety as to whether the  Parliament possesses only a limited remedial power of  contempt and, if so, whether it can source therefrom the  power of expulsion.  There has been great debate around the cases of Keilley,

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Fenton, Doyle and Barton mentioned earlier. We would,  therefore, notice the relevant portions of the decisions  rendered in the said cases. The case of Keilley arose out of the imprisonment of the  appellant, who allegedly used threatening and insulting  language against a member of the Legislative Assembly of  Newfoundland. His conduct was held to be a breach of  privilege by the Assembly and their powers came up for  scrutiny before the Privy Council. It was found by the court  that the Legislative Assembly of Newfoundland did not have  the power to punish for contempt.  The judgment was  delivered by Mr. Baron Parke, who held:- "The whole question then is reduced to  this,\026whether by law, the power of  committing for a contempt, not in the  presence of the Assembly, is incident to  every local Legislature. The Statute Law  on this subject being silent, the Common  Law is to govern it; and what is the  Common Law, depends upon principle  and precedent. \005

Their Lordships see no reason to think,  that in the principle of the Common Law,  any other powers are given them, than  such as are necessary to the existence of  such a body, and the proper exercise of  the functions which it is intended to  execute. These powers are granted by the  very act of its establishment, an act  which on both sides, it is admitted, it was  competent for the Crown to perform.   This is the principle which governs all  legal incidents. "Qunado Lex aliquid  concedit, concedere et illud, sine quo res  ipsa esse non potest." In conformity to  this principle we feel no doubt that such  as Assembly has the right of protecting  itself from all impediments to the due  course of its proceeding. To the full extent  of every measure which it may be really  necessary to adopt, to secure the free  exercise of their Legislative functions,  they are justified in acting by the  principle of the Common Law. But the  power of punishing any one for past  misconduct as a contempt of its  authority, and adjudicating upon the fact  of such a contempt, and the measure of  punishment as a judicial body,  irresponsible to the party accused,  whatever the real facts may be, is of a  very different character, and by no means  essentially necessary for the exercise of  its functions by a local Legislature,  whether representative or not. (234-35) \005 But the reason why the house of  Commons has this power, is not because  it is a representative body with legislative  functions, but by virtue of ancient usage  and prescription; the lex et consuetude  Parliamenti, which forms a part of the  Common Law of the land, and according

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to which the High Court of Parliament,  before its division, and the Houses of  Lords and Commons since, are invested  with many peculiar privileges, that of  punishing for contempt being one. (235) \005 Nor can the power be said to be incident  to the Legislative Assembly by analogy to  the English Courts of Record which  possess it. This assembly is no Court of  Record, nor has it any judicial functions  whatever’ and it is to be remarked, that  all these bodies which possess the power  of adjudication upon, and punishing in a  summary manner, contempts of their  authority, have judicial functions, and  exercise this as incident to those which  they possess, except only the House of  Commons, whose authority, in this  respect, rests upon ancient usage." (235)     (Emphasis supplied) The above case was followed in Fenton. This action  against the Speaker of the Legislative Assembly of Van  Dieman’s Island arose from the allegedly unlawful assault,  seizure and imprisonment of the respondent. The judgment  was pronounced by Lord Chief Baron Pollock on 17th  February, 1858.  The case followed Keilley, observing that in  that case:- "they held that the power of the House of  Commons in England was part of the ’Lex  et consuetudo Parliamenti’; and the  existence of that power in the Commons  of Great Britain did not warrant the  ascribing it to every Supreme Legislative  Council or Assembly in the Colonies. We  think we are bound by the decision of the  case of Keilley v. Carson\005."

The next case was that of Doyle. This case involved the  power of the Legislative Assembly of Dominica to punish its  member for his conduct in the Assembly. This case followed  Keilley and Fenton holding that the Assembly had no power  to punish for contempt.  The judgment was delivered by Sir  James Colvile. It was observed:- "Keilley v. Carson\005must here be taken to  have decided conclusively that the  Legislative Assemblies in the British  Colonies have, in the absence of express  grant, no power to adjudicate upon, or  punish for, contempts committed beyond  their walls. (339) \005

The privileges of the House of Commons,  that of punishing for contempt being one,  belong to it by virtue of lex et consuetude  Parliamenti, which is a law peculiar to  and inherent in two Houses of Parliament  of the United Kingdom. It cannot  therefore, be inferred from the possession  of certain powers by the house of  Commons, by virtue of that ancient usage  and prescription, that the like powers  belong to Legislative Assemblies of  comparatively recent creation in the

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dependencies of the Crown. (339) \005

Again, there is no resemblance between a  Colonial House of Assembly, being a body  which has no judicial functions, and a  Court of Justice, being a Court of Record.  There is, therefore, no ground for saying  that the power of punishing for contempt,  because it is admitted to be inherent in  the one, must be taken by analogy to be  inherent in the other." (339)

Is the power to punish and commit for  contempts committed in its presence one  necessary to the existence of such a body  as the Assembly of Dominica, and the  proper exercise of the functions which it  is intended to execute? It is necessary to  distinguish between a power to punish  for a contempt, which is a judicial power,  and a power to remove any obstruction  offered to the deliberations or proper  action of a Legislative body during its  sitting, which last power is necessary for  self-preservation. If a Member of a  Colonial House of Assembly is guilty of  disorderly conduct in the House whilst  sitting, he may be removed, or excluded  for a time, or even expelled; but there is a  great difference between such powers and  the judicial power of inflicting a penal- sentence for the offence.  The right to  remove for self-security is one thing, the  right to inflict punishment another." (340)                                                          Finally, in Barton, it involved the suspension of a  member from the Legislative Assembly of New South Wales.  The power of suspension for an indefinite time was held to be  unavailable to the Legislative Assembly as it was said to have  trespassed into the punitive field. The judgment was delivered  by the Earl of Selborne. Referring to the cases of Keilley and  Doyle, the Court observed:- "It results from those authorities that no  powers of that kind are incident to or  inherent in a Colonial Legislative  Assembly (without express grant), except  ’such as are necessary to the existence of  such a body, and the proper exercise of  the functions which it is intended to  execute’.

Powers to suspend toties quoties, sitting  after sitting, in case of repeated offences  (and, if may be, till submission or  apology), and also to expel for aggravated  or persistent misconduct, appear to be  sufficient to meet even the extreme case  of a member whose conduct is habitually  obstructive or disorderly. To argue that  expulsion is the greater power, and  suspension the less, and that the greater  must include all degrees of the less,  seems to their Lordships fallacious.  The  rights of constituents ought not, in a

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question of this kind, to be left out of  sight. Those rights would be much more  seriously interfered with by an  unnecessarily prolonged suspension then  by expulsion, after which a new election  would immediately be held."  (Emphasis supplied)                                                                  The Court went on to examine what is necessary and  found that an indefinite suspension could never be considered  necessary. The learned Counsel for the petitioners have relied on the  above distinction and submitted that the limited power does  not envisage expulsion and can only be used for ex facie  contempts.  We are not persuaded to subscribe to the propositions  advanced on behalf of the petitioners. Even if we were to  accept this distinction as applicable to the Indian parliament,  in our opinion, the power to expel would be available. Firstly, the case of Barton, which allows only a limited  power to punish for contempt, finds that even though the  Legislative Assembly does not have the power to indefinitely  suspend, as that was punitive in nature, the Assembly would  have the power to expel, considering expulsion a non-punitive  power. Secondly, the objection that the limited power could  only deal with ex facie contempt, is not tenable. In the above context, reference may be made to the case  of Hartnett v. Crick [(1908) AC 470]. This case involved the  suspension of a member of the Legislative Assembly of New  South Wales until the verdict of the jury in the pending  criminal trial against the Member had been delivered. The  suspension was challenged. When the matter came up before  the Privy Council, the Respondents argued that:- "The Legislative Assembly had no  inherent power to pass [the standing  order]. Its inherent powers were limited to  protective and defensive measures  necessary for the proper exercise of its  functions and the conduct of its  business. They did not extend to punitive  measures in the absence of express  statutory power in that behalf, but only  to protective measures\005.The fact that a  criminal charge is pending against the  respondent does not affect or obstruct the  course of business in the Chamber or  relate to its orderly conduct."

This argument was rejected and the House of Lords  allowed the appeal. Lord Macnaghten, delivering the judgment,  initially observed that:- "\005\005.no one would probably contend that  the orderly conduct of the Assembly  would be disturbed or affected by the  mere fact that a criminal charge is  pending against a Member of the House"  (475)

But he found that certain peculiar circumstances of the  case deserved to be given weight. The Court went on to hold  thus:- "If the House itself has taken the less  favourable view of the plaintiff’s attitude  [an insult and challenge to the house],  and has judged that the occasion justified

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temporary suspension, not by way of  punishment, but in self-defence, it seems  impossible for the Court to declare that  the House was so wrong in its judgment,  and the standing order and the resolution  founded upon it so foreign to the purpose  contemplated by the Act, that the  proceedings must be declared  invalid."(476)  (Emphasis supplied)

The above case thus establishes that even if the House of  legislature has limited powers, such power is not only  restricted to ex facie 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 House only has the power to  remove obstructions during its proceedings cannot be  accepted. It is axiomatic to state that expulsion is always in respect  of a member. At the same time, it needs to be borne in mind  that a member is part of the House due to which his or her  conduct always has a direct bearing upon the perception of  the House. Any legislative body must act through its members  and the connection between the conduct of the members and  the perception of the House is strong.  We, therefore, conclude  that even if the Parliament had only the limited remedial  power to punish for contempt, the power to expel would be  well within the limits of such remedial contempt power.  We are unable to find any reason as to why legislatures  established in India by the Constitution, including the  Parliament under Article 105 (3), should be denied the claim to  the power of expulsion arising out of remedial power of  contempt.  

Principle of necessity   Learned Counsel for Union of India and the learned  Additional Solicitor General also submitted that the power of  expulsion of a sitting member is an inherent right of every  legislature on the ground of necessity.  The argument is that  ’necessity’ as a source of the power of expulsion, is also  available to a House for expulsion of one of its members, as  such power is ’necessary’ for the functioning of the House.   The petitioners, on the other hand, argued that expulsion can  never be considered ’necessary’ or a ’self protective’ power and,  therefore, it cannot be claimed by the House. In view of our interpretation of Article 105(3) of the  Constitution, it is not essential to determine the question  whether ’necessity’ as an independent source of power, apart  from the power of the House to punish for contempt, by  expulsion of a member, is available or not.  We may note that  number of judgments were cited in support of the respective  view points.  Further, the Petitioners have also relied on the fact that  Australia has passed a law taking away the power of  expulsion.   It is true that Section 4 of the Parliamentary  Privileges Act, 1987 removed the power to expel from the  Houses of the Commonwealth Parliament in Australia.  The  Act was passed on the recommendation of the Parliament’s  Joint Select Committee on Parliamentary Privilege.  Enid  Campbell, the eminent authority on Australian Parliamentary  privilege writes, "The Committee so recommended because of  the potential abuse of the power, because of the specific

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provisions in the federal Constitution on disqualification of  members, ’and on the basic consideration that it is for the  electors, not members, to decide on the composition of  Parliament’."   Odger’s Australian Senate Practice further clarifies  the basis for the Joint Select Committee’s recommendation :  "The 1984 report of the Joint Select  Committee on Parliamentary Privilege  recommended that the power of a House  to expel its members be abolished.  The  rationale of this recommendation was  that the disqualification of members is  covered by the Constitution and by the  electoral legislation, and if a member is  not disqualified the question of whether  the member is otherwise unfit for  membership of a House should be left to  the electorate.  The committee was also  influenced by the only instance of the  expulsion of a member of a House off the  Commonwealth Parliament, that of a  member of the House of Representatives  in 1920 for allegedly seditious words  uttered outside the House.  This case had  long been regarded as an instance of  improper use of the power (see, for  example, E. Campbell, Parliamentary  Privilege in Australia, MUP, 1966, pp.104- 05 (Odger’s Australian Senate Practice  11th Edition, 56-57).

The Australian Joint Committee Report itself weighs the  dangers of misuse of expulsion against any potential need for  expulsion and definitively recommends its abolition : "This danger [i.e. misuse by the majority]  can never be eradicated and the fact that  the only case in federal history when the  power to expel was exercised is a case  when, we think, the power was  demonstrably misused is a compelling  argument for its abolition.  But the  argument for abolition of the power to  expel does not depend simply on the  great potential for abuse and the harm  such abuse can occasion.  There are  other considerations.  Firstly, there are  the detailed provisions in the  Constitution.  In short, we already have  something approaching a statutory code  of disqualification.  Secondly, it is the  electors in a constituency or in a State  who decide on representation.  In  principle, we think it wrong that the  institution to which the person has been  elected should be able to reverse the  decision of his constituents.  If expelled  he may stand for re-election but, as we  have said, the damage occasioned by his  expulsion may render his prospects of re- election negligible.  Thirdly, the Houses  still retain the wide powers to discipline  Members.  Members guilty of a breach of  privilege or other contempt may be  committed, or fined \005  These sanctions  seem drastic enough.  They may also be

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suspended or censured by their House."

The aforesaid approach adopted in Australia is entirely  for the Parliament to consider and examine, if so advised.  In  so far as this Court is concerned, since India does not have a  law that codifies the privileges of the Parliament, nothing  turns on the basis of the Australian legislation.  

Argument of Parliamentary practice  During the course of arguments it was brought out that  since the date of commencement of the Constitution of India  there have been three occasions when the Houses of  Parliament have resorted to expulsion of the sitting Member.   Out of these three occasions, two pertained to Members of Lok  Sabha.   The first such case came on 8th June 1951 when the 1st  Lok Sabha resolved to expel Mr. H.G. Mudgal for having  engaged himself in conduct that was derogatory to the dignity  of the House and inconsistent with the standard which  Parliament is entitled to expect from its members.  The second  occasion of expulsion came in 6th Lok Sabha, when by a  resolution adopted on 19th December 1978, it resolved to agree  with the recommendations and findings of the Committee of  Privileges and on the basis thereof ordered expulsion of Mrs.  Indira Gandhi along with two others (Mr. R.K. Dhawan and  Mr. D. Sen) from the membership of the House having found  them guilty of breach of privilege of the House.  The third case  pertains to Rajya Sabha when expulsion of Mr. Subramanium  Swamy was ordered on 15th November 1976. The above-mentioned three instances of expulsion from  the Houses of Parliament have been referred to by the learned  counsel for Union of India in support of his argument that  expulsion of a Member of Parliament has not been ordered for  the first time and that it is now part of Parliamentary practice  that the Houses of Parliament can expel their respective  members for conduct considered unfit and unworthy of a  Member. On the other hand, the learned counsel for the  petitioners would refer to these very instances to quote certain  observations in the course of debates in the Parliament to  buttress their plea that the Parliamentary practice in India is  against resort to the extreme penalty of expulsion from  amongst the sanctions that may be exercised in cases of  breach of privileges by the House of Commons. The facts of the case of expulsion of Mr. Subramaniam  Swamy from Rajya Sabha are narrated by Subhash C.  Kashyap in his ’Parliamentary Procedure’ (Vol. 2, p. 1657). It  appears that Rajya Sabha adopted a motion on 2nd September  1976 appointing a Committee to investigate the conduct and  activities of the said member, within and outside the country,  including alleged anti-India propaganda calculated to bring  into disrepute Parliament and other democratic institutions of  the country and generally behaving in a manner unworthy of a  member. The Committee presented report on 12th November  1976 recommending expulsion as his conduct was found to be  derogatory to the dignity of the House and inconsistent with  the standards which it was entitled to expect from its  members. On 15th November 1976, a motion was adopted by  Rajya Sabha expelling the member. Coming to the cases of expulsion from Lok Sabha, the  facts of the case of Mr. H.G. Mudgal have been summarized at  page 262 in Practice and Procedure of Parliament by Kaul and  Shakder (5th  Edn.). Mr. H.G. Mudgal was charged with having

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engaged himself in "certain dealings with the Bombay Bullion  Association which include 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. On 8 June, 1951, a  motion for appointment of a Committee to investigate the  conduct and activities of the member was adopted by Lok  Sabha.  The Committee, after inquiry, held that the conduct of  the member was derogatory to the dignity of the House and  inconsistent with the standard which Parliament was entitled  to expect from its members. In pursuance of the report of the  Committee, a motion was brought before the House on 24  September, 1951, to expel Mr. Mudgal from the House. The  member, after participating in the debate, submitted his  resignation to the Deputy Speaker.  When the report of the Committee was being debated, Pt.  Jawahar Lal Nehru, the then Prime Minister of India, spoke at  length on the subject.  His speech rendered in Parliament on  24th September 1951 dealt with the facts of the case as also  his views on the law on the subject.  After noticing that in the  Constitution of India no particular course is laid down in  regard to such matters inasmuch as Article 105(3) refers one  back to the practice in the British House of Commons, this is  what he had to say :- "\005\005\005\005\005.. this House as a sovereign  Parliament must have inherently the  right to deal with its own problems as it  chooses and I cannot imagine anybody  doubting that fact. This particular article  throws you back for guidance to the  practice in the British House of  Commons. There is no doubt as to what  the practice in the House of Commons of  the Parliament in the U.K. has been and  is.  Cases have occurred from time to  time there, when the House of Commons  has appointed a Committee and taken  action  \005\005..

So there is no doubt that this House  is entitled inherently and also if reference  be made to the terms of article 105 to  take such steps according to the British  practice and expel such a Member from  the House.

The question arises whether in the  present case this should be done or  something else. I do submit that it is  perfectly clear that this case is not even a  case which might be called a marginal  case, where people may have two  opinions about it, where one may have  doubts if a certain course suggested is  much too severe. The case, if I may say  so, is as bad as it could well be. If we  consider even such a case as a marginal  case or as one where perhaps a certain  amount of laxity might be shown, I think  it will be unfortunate from a variety of  points of view, more especially because,  this being the first case of its kind coming  up before the House, if the House does

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not express its will in such matters in  clear, unambiguous and forceful terms,  then doubts may very well arise in the  public mind as to whether the House is  very definite about such matters or not.   Therefore, I do submit that it has become  a duty for us and an obligation to be  clear, precise and definite. The facts are  clear and precise and the decision should  also be clear and precise and  unambiguous.  And I submit the decision  of the House should be after accepting  the finding of this report, to resolve that  the Member should be expelled from the  House. Therefore, I beg to move:

’That this House, having considered  the Report of the Committee  appointed on the 8th June, 1951 to  investigate into the conduct of Shri  H.G. Mudgal, Member of Parliament,  accepts the finding of the Committee  that the conduct of Shri Mudgal is  derogatory to the dignity of the  House and inconsistent with the  standard which Parliament is  entitled to expect from its Members,  and resolves that Shri Mudgal be  expelled from the House’."

On 25th September 1951, the House deprecated the  attempt of the member to circumvent the effect of the motion  and unanimously adopted an amended motion that read as  follows:- "That this House, having considered the  Report of the Committee appointed on the  8th June, 1951, to investigate the conduct  of Shri H.G. Mudgal, Member of  Parliament, accepts the findings of the  Committee that the conduct of Shri  Mudgal is derogatory to the dignity of the  House and inconsistent with the  standard which Parliament is entitled to  expect from its members, and resolves  that Shri Mudgal deserved expulsion from  the House and further that the terms of  the resignation letter he has given to the  Deputy Speaker at the conclusion of his  statement constitute a contempt of this  House which only aggravates his offence".

The facts of the matter leading to expulsion of Mrs. Indira  Gandhi and two others are summarized at page 263 in  Practice and Procedure of Parliament by Kaul and Shakder (5th  Edn.). On 18th November 1977, a motion was adopted by the  House referring to the Committee of Privileges a question of  breach of privilege and contempt of the House against Mrs.  Indira Gandhi, former Prime Minister, and others regarding  obstruction, intimidation, harassment and institution of false  cases by Mrs. Gandhi and others against certain officials. The Committee of Privileges were of the view that Mrs.  Indira Gandhi had committed a breach of privilege and  contempt of the House by causing obstruction, intimidation,  harassment and institution of false cases against the

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concerned officers who were collecting information for answer  to a certain question in the House. The Committee  recommended that Mrs. Indira Gandhi deserved punishment  for the serious breach of privilege and contempt of the House  committed by her but left it to the collective wisdom of the  House to award such punishment as it may deem fit. A resolution was moved to inflict the punishment of  committal and expulsion. In the course of debate on the  motion, Mr. C.M. Stephen, Leader of the Opposition, inter alia,  inviting attention to the full Bench decision of Punjab &  Haryana High Court in the case of Hardwari Lal [ILR (1977)  2 P&H 269] stated that the proposal to expel was "not  countenanced by the Constitution" and the House had no  power to expel an elected member.  Mr. K.S. Hegde, the  Speaker, acknowledged the importance of the constitutional  arguments advanced by Mr. C.M. Stephen. On 19th December  1978, the House adopted a motion resolving that Mrs. Indira  Gandhi be committed to jail till the prorogation of the House  and also be expelled from the membership of the House for the  serious breach of privilege and contempt of the House  committed by her. What was done by the 6th Lok Sabha through the  resolution adopted on 19th December 1978 was undone by the  7th Lok Sabha. It discussed the propriety of the earlier  decision. Certain speeches rendered in the course of the  debate have been relied upon, in extenso, by the learned  counsel and may be taken note of.  Mr. B.R. Bhagat spoke  thus:- "They have committed an error. I am not  going into the morality of it, because I am  on a stronger ground. It is illegal because  there is no jurisdiction.

       Coming to the third point the  determination of guilt and adjudication  they are judicial functions in many  countries and, therefore question of  breach of privilege, contempt of the  House, punishment etc. are decided in  the courts of law in them. Only we have  followed the parliamentary system the  Westminster type. In the House of  Commons there the House itself deals  with breach of its privileges, and we have  taken it from them. Therefore, here the  breach of privilege is punished by the  House. But in many other countries  almost all other countries if I may say so,  any breach of privilege of the House is  punished by the courts and therefore, the  point I am making is that the procedure  followed in the Privilege Committee is  very important.  The law of privileges, as I  said is a form of criminal law and I was  making this point that excepting the  House of Commons and here \026 we have  taken the precedents and conventions  from the House of Commons \026 in regard  to all other Parliaments this offence or  the contempt of the House or the breach  of privilege of the House is punished by  the courts and therefore, essentially the  law of privileges is a form of criminal law  and often a citizen and his Fundamental  Rights may clash with the concepts of the

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dignity of the House and the Legislatures,  their committees and Members. The  essence of criminal law is that it is easily  ascertainable. The law of privileges on the  other hand is bound to remain vague and  somewhat uncertain unless codified. And  here, it has not been codified except in  Rule 222. Whereas in India following the  British practices the House itself judges  the matter it is important to ensure that  the strictest judicial standards and  judicial procedures are followed. This is  very important because my point is that  in the Privileges Committee the  deliberations were neither judicial nor  impartial nor objective, and they did not  follow any established rules of procedure  for even the principles of equity and  natural justice. They were not applied in  dealing with this matter in the case of  Mrs. Gandhi and the two officers and the  principal that justice should not only be  done but also seem to have been done is  totally lacking in this case.  Nothing that  smacks of political vendetta should be  allowed to cloud a judgment as even the  slightest suspicion of the Committee of  Privileges of the House acting on political  consideration or on the strength of the  majority party etc. may tend to destroy  the sanctity and value of the privileges of  the Parliament.   Now, I am dealing only with the  deliberations of the Committee. When the  matter comes before House, then I will  come with it separately. In that, political  vendetta governed the Members of the  Committee. If you take the previous  precedents either here in this Parliament,  or in the House of Commons or in other  Parliaments, you will find that the  decisions of the Privileges Committee  were unanimous. They are not on party  lines.  But in this particular case, not  only the decisions were on party lines,  but there were as many as 6 or 7 Notes  many of them were votes of dissent  though they were not called as such  because this is another matter which I  want to refer quoting: "Under the  Directions of the Speaker" ’there shall be  no Minute of Dissent to the report of a  parliamentary committee \026 this is a  parliamentary committee \026 ’except the  select committee’. In a Select Committee  or a Joint Select Committee Minutes of  Dissent are appended. In other  parliamentary committees \026 the Privileges  Committee is a parliamentary committee  \026 under Direction 68(3), "There shall be  no minute of dissent to the report".

The idea is that the deliberations in  these committees should be objective,

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impartial and should not be carried on  party or political lines. In this matter  there are as many as six notes \026 they are  called ’notes’ because they cannot be  minutes of dissent and four of them have  completely differed, totally different with  the findings of the Committee. Seven  Members were from the ruling party. This  reflects the composition of the  Committee. They have taken one line. I  will come to that point later when I deal  with the matter, how the matter was  adopted in the House. How it was taken  and how political and party  considerations prevailed. That is against  the spirit and law of Parliamentary  Privileges. In the Committee too, Mrs.  Gandhi said that the whole atmosphere is  political and partisan, the Members o the  Privileges Committee, the Members of the  ruling party, the Janata Party have been  totally guided by a vindictive attitude, an  attitude of vendetta or vengeance or  revenge to put her in prison or to punish  her."

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"Rule 72 of the Rules of Procedure is  only, as I said earlier, an enabling  provision inasmuch as the Committee of  Privileges may administer an oath or  affirmation to a witness. It does not mean  that every witness is bound to take an  oath. In any case, it does not apply to an  accused. Every accused must be given  the fullest opportunity of self-defence. He  should be allowed to be represented  before the Committee by a counsel of his  or her choice to lead evidence and to  cross-examine witnesses and, further, the  benefit of doubt must go to an accused.  This is the law.

       Earlier, in the Mudgal case, we have  a precedent. The Committee of the House  gave an opportunity to the accused. He  was allowed the services of a counsel, to  cross-examine witnesses, to present his  own witnesses and to lead his defence  through his counsel. The Committee was  also assailed by the Attorney-General  throughout the examination of the  matter.  This was not given to Mrs. Indira  Gandhi.  This also clearly indicates the  motivations in the Privileges Committee.

       Again, the punishment for a breach  of privileges in recent times, this  maximum punishment, this double  punishment of expulsion and  imprisonment, is unheard of an  unprecedented. The recent trend all over  the world is that the House takes as few  cases of privilege as possible. The

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minimum punishment is that of either  reprimand or admonition. In this matter  also, the majority decision of the  Privileges Committee showed a bias or  rather a vendetta."

Mr. A.K. Sen, in his speech was more concerned about  the fairness of the procedure that had been adopted by the  Committee on Privileges before ordering expulsion of Mrs.  Gandhi and others.  He stated as under :- "I remember when Charles the First was  arraigned before the court which was set  up by the Cromwell’s Government, at the  end of the trial, he was asked whether he  had anything to plead by way of defence.   The famous words he uttered were these.  I do not think I can repeat them word by  word, but I would repeat the substance.  He said "To whom shall I plead my  defence? I only find accusers and no  Judges". So this is what happened when  Mrs. Gandhi appeared before this august  Committee. Excepting a few who had the  courage to record their notes of dissent,  the minds of the rest had already been  made up. This is very clear from the  utterances which came from them  outside the Parliament, before and after  the elections and from the way they were  trying to manipulate the entire matter."

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"Sir, the Supreme Court in a series of  decisions started from Sharma’s case laid  down very clearly that the privileges  cannot violate the Fundamental rights of  a citizen. Therefore, if a citizen has the  right not to be a witness against a sin or  not to be bullied into cross-examination,  then that right cannot be taken away in  the name of a privilege. You can convict  her or you can verdict him by only  evidence, but not by her own hand. Our  law forbids a person to be compelled to  drink a cup of poison. The Plutonic  experiment would not be tolerated under  our laws. No accused can be said: ’You  take the cup of poison and swallow it.’ He  has to be tried and he has to be  sentenced according to the law."

Mr. Jagan Nath Kaushal also referred to the case of  Hardwari Lal and then said :- "When Mrs. Gandhi’s case was before the  Parliament, that judgment was in the  field. But nobody just cared to look at  that. The reason is obvious, and the  reason has been given by the friends who  have spoken. The reason is, we had a  pre-determined judge who was not in a  mood to listen to any voice of reason and  I say it is a very sad day when we have to  deal with pre-determined judges. I can  understand a judge not knowing the law,

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but it is just unthinkable that a judge  should come to the seat of justice with a  pre-determined mind to convict the  person who is standing before him in the  capacity of an unfortunate accused. It is  the negation of notions of justice.  Therefore, what happened at that time  was that not only Mrs. Gandhi was  punished with imprisonment, but she  was also expelled."

The resolution adopted on 19th December 1978 by the 6th  Lok Sabha was rescinded on 7th May 1981 by the 7th Lok  Sabha that adopted the following resolution:- "(a) the said proceedings of the  Committee and the House shall not  constitute a precedent in the law of  parliamentary privileges; (b) the findings of the Committee and the  decision of the House are inconsistent  with and violative of the well-accepted  principles of the law of Parliamentary  privilege and the basic safeguards  assured to all enshrined in the  Constitution; and (c) Smt. Indira Gandhi, Shri R.K. Dhawan  and Shri D. Sen were innocent of the  charges leveled against them. And accordingly this House: Rescinds the resolution adopted by the  Sixth Lok Sabha on the 19th December,  1978."

It is the argument of the learned counsel for petitioners  that the resolution adopted on 7th May 1981 by Lok Sabha  clearly shows that resort to expulsion of a sitting elected  member of the House was against parliamentary rules,  precedents and conventions and an act of betrayal of the  electorate and abuse by brute majoritarian forces. In this  context, the learned counsel would point out that reference  was made repeatedly in the course of debate by the Members  of Lok Sabha, to the majority view of Punjab & Haryana High  Court in the case of Hardwari Lal.  The learned counsel  would submit that Lok Sabha had itself resolved that the  proceedings of the Privileges Committee and of the House in  the case of expulsion of Mrs. Gandhi shall not constitute a  precedent in the law of parliamentary privileges. They argue  that in the teeth of such a resolution, it was not permissible  for the Parliament to have again resolved in December 2005 to  expel the petitioners from the membership of the two Houses. In our considered view, the opinion expressed by the  Members of Parliament in May 1981, or for that matter in  December 1978, as indeed in June 1951 merely represent  their respective understanding of the law of privileges. These  views are not law on the subject by the Parliament in exercise  of its enabling power under the second part of Article 105(3). It  cannot be said, given the case of expulsion of Mudgal in 1951,  that the parliamentary practice in India is wholly against  resort to the sanction of expulsion for breach of privileges  under Article 105.   On the question whether power of expulsion exists or  not, divergent views have been expressed by learned members  in the Parliament.   These views deserve to be respected but on  the question whether there exists power of expulsion is a

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matter of interpretation of the constitutional provisions, in  particular Article 105(3) and Article 194(3) on which the final  arbiter is this Court and not the Parliament.  

Judicial Review \026 Manner of Exercise \026 Law in England  Having held that the power of expulsion can be claimed  by Indian legislature as one of the privileges inherited from the  House of Commons through Article 105(3), the next question  that arises is whether under our jurisprudence is it open to  the court to examine the manner of exercise of the said power  by Parliament as has been sought by the petitioners. The learned counsel for Union of India, as indeed the  learned Additional Solicitor General, were at pains to submit  that the matter falls within the exclusive cognizance of the  legislature, intrusion wherein for purposes of judicial review of  the procedure adopted has always been consistently avoided  by the judicature in England from where the power of  expulsion has been sourced as also expressly prohibited by  the constitutional provisions. The principal arguments on behalf of the Union of India  and of the learned Additional Solicitor General on the plea of  ouster of the court’s jurisdiction is that in essence, the  position with regard to justiciability of exercise of  Parliamentary privilege is exactly the same in India as what  exists in England. As seen in Bradlaugh v. Gossett, Courts in  England have recognized the Parliamentary Privilege of  exclusive cognizance over its own proceedings, whereby Courts  will examine existence of a privilege but will decline to interfere  with the manner of its exercise.   The contention of the petitioners, on the other hand, is  that the arguments opposing the judicial review ignore both  the impact in the Indian context of existence of a written  Constitution, as well as the express provisions thereof. It has  been submitted that the English decisions, including  Bradlaugh, cannot be transplanted into the Indian  Constitution and are irrelevant as the position of Parliament in  the United Kingdom is entirely different from that of the Indian  Parliament which is functioning under the Constitution and  powers of which are circumscribed by the Constitution, which  is supreme and not the Parliament.  Against the backdrop of challenge to the jurisdiction of  the court to examine the action of the legislature in the matter  arising out of its privilege and power to punish for contempt,  this court in the case of UP Assembly took note of the law laid  down in a series of cases that came up in England during the  turbulent years of struggle of House of the Commons to assert  its privileges. {Earl of Shaftesbury (86 E.R. 792), Ashby v.  White [(1703-04) 92 E.R. 129], R. v. Paty [(1704) 92 E.R.  232], Case of Murray (95 E.R. 629), Case of Brass Crosby  (95 E.R. 1005), Case of Sir Francis Burdett (104 E.R. 501),  Cases of Stockdale (1836-37), Howard v. Sir William  Gosset (116 E.R. 139) and Bradlaugh v. Gossett [(1884)  L.R. 12 Q.B.D. 271]}. The learned counsel for Union of India quoted extensively  from the judgment in Bradlaugh, mainly the passages  mentioned hereinafter. Lord Colridge CJ observed at page 275 thus:- "------------there is another proposition  equally true, equally well established,  seems to be decisive of the case before us.   What is said or done within the walls of  Parliament cannot be inquired into in a  court of law.  On this point all the judges  in the two great cases which exhaust the

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learning on the subject, - Burdett v.  Abbott (14 East, 1, 148) and Stockdale v.  Hansard (9 Ad. & E.I); - are agreed, and  are emphatic. The jurisdiction of the  Houses over their own members, their  right to impose discipline within their  walls, is absolute and exclusive.  To use  the words of Lord Ellenborough, "They  would sink into utter contempt and  inefficiency without it".(14 East, at  p.152.)"  

Stephen J., at page 278, was categorical in his view that  "the House of Commons is not subject to the control of her  Majesty’s courts in its administration of that part of the  statute \026 law which has relation to its own internal  proceedings" and referred in this context to the following:- "Blackstone says (1 Com.163): "The whole  of the law and custom of Parliament has  its original form this one maxim, ’that  whatever matter arises concerning either  House of Parliament ought to be  examined, discussed, and adjudged in  that House to which it relates, and not  elsewhere."  This principle is re-stated  nearly in Blackstone’s words by each of  the judges in the case of Stockdale v.  Hansard. (9 Ad. & E.1.)"  

Then, at page 279, Stephen J. copiously quoted from  Stockdale as under:- "Lord Denman says (9 Ad. & E. at p. 114)  "Whatever is done within the walls of  either assembly must pass without  question in any other place."  Littledale,  J. says (At p.162) : "It is said the House of  commons is the sole judge of its own  privileges; and so I admit as far as the  proceedings in the House and some other  things are concerned."  Patteson, J. said  (at p.209) "Beyond all dispute, it is  necessary that the proceedings of each  house of Parliament should be entirely  free and unshackled that whatever is said  or done in either House should not be  liable to examination elsewhere." And  Coldridge, J. said (at p.233) : " That the  House should have exclusive jurisdiction  to regulate the course of its own  proceedings and animadvert upon any  conduct there in violation of its rules or  derogation from its dignity, stands upon  the clearest grounds of necessity."

Further, at page 285 Stephen J. observed thus:- "I do not say that the resolution of the  House is the judgment of a Court not  subject to our revision; but it has much  in common with such a judgment. The  House of Commons is not a Court of  Justice; but the effect of its privilege to

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regulate its own internal concerns  practically invests it with a judicial  character when it has to apply to  particular cases the provisions of Acts of  Parliament. We must presume that it  discharges this function properly and  with due regard to the laws, in the  making of which it has so great a share.  If its determination is not in accordance  with law, this resembles the case of an  error by a judge whose decision is not  subject to appeal."  (Emphasis supplied)

On the basis of appraisal of the law in the  aforementioned series of cases, this court summarized the  position in the law of England on the question of jurisdiction  of the court in matters arising out of contempt jurisdiction of  the legislature, in the following words at page 482:- "108. Having examined the relevant  decisions bearing on the point, it would,  we think, not be inaccurate to observe  that the right claimed by the House of  Commons not to have its general  warrants examined in habeas corpus  proceedings has been based more on the  consideration that the House of  Commons is in the position of a superior  Court of Record and has the right like  other superior courts of record to issue a  general warrant for commitment or  persons found guilty of contempt. Like  the general warrant issued by superior  courts of record in respect of such  contempt, the general warrants issued by  the House of Commons in similar  situations should be similarly treated. It  is on that ground that the general  warrants issued by the House of  Commons were treated beyond the  scrutiny of the courts in habeas corpus  proceedings. In this connection, we ought  to add that even while recognising the  validity of such general warrants, Judges  have frequently observed that if they were  satisfied upon the return that such  general warrants were issued for frivolous  or extravagant reasons, it would be open  to them to examine their validity."  (Emphasis supplied)

The case of Prebble has been mentioned earlier.  The  observations of Privy Council (at page 976 and 980 of the  judgment) have been extracted in earlier part of this judgment.   They have been referred to by the learned counsel for Union of  India for present purposes as well.  The principle of law and  practice that the courts will not allow any challenge to be  made to what is said or done within the walls of Parliament in  performance of its legislative functions and protection of its  established privileges was reiterated in this case on the basis  of, amongst others, the cases of Burdett, Stockdale and  Bradlaugh. Learned counsel for Union of India and learned

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Additional Solicitor General, submit that in the case of UP  Assembly, this court was dealing mainly with the powers of  the courts under Article 32 and 226 of the Constitution of  India to entertain petitions challenging legality of committal for  contempt of State legislature on the grounds of breach of  fundamental rights of non-members.  The learned counsel  drew our attention to certain observations made, at page 481- 482 of the judgment, which read as under:- "Mr. Seervai’s argument was that though  the resolution appeared to constitute an  infringement of the Parliamentary Oaths  Act, the Court refused to give any relief to  Bradlaugh, and he suggested that a  similar approach should be adopted in  dealing with the present dispute before  us.  The obvious answer to this  contention is that we are not dealing with  any matter relating to the internal  management of the House in the present  proceedings.  We are dealing with the  power of the House to punish citizens for  contempt alleged to have been committed  by them outside the four walls of the  House, and that essentially raises  different considerations."       (Emphasis supplied)

The submission of the learned counsel is that the  view in Bradlaugh that matters of internal management  were beyond the purview of judicial scrutiny had been  followed. This, according to the learned counsel, has been  the consistent view of this court, as can be seen from the  cases of Indira Nehru Gandhi v. Raj Narain [1975 Supp  SCC 1] and P.V. Narasimha Rao v. State (CBI/SPE)  [(1998) 4 SCC 626].  Both the judgments referred to the law  in Bradlaugh, the case of P.V. Narsimha Rao also quoted  with approval Stockdale. In the case of Indira Nehru  Gandhi, the court took note, in Para 70, of the law in  Bradlaugh, in the following words:- "\005\005\005\005\005..It was held that the Court  had no power to restrain the executive  officer of the House from carrying out the  order of the House. The reason is that the  House is not subject to the control of the  courts in the administration of the  internal proceedings of the House."

Learned counsel for Union of India also sought strength  from the following observation appearing at page 468:- "\005\005\005On the other hand, the courts  have always, at any rate in the last  resort, refused to interfere in the  application by the House of any of its  recognized privileges (May’s  Parliamentary Practice, pp. 173- 74)\005\005\005"

In our view, the above observation of this court in the  case of UP Assembly, paraphrasing the position of law and  practice in England on the authority of May’s Parliamentary  Practice, refers to enforcement by the legislature of privileges  which had been recognized by the courts.  The observation has  no relevance on the question under consideration in these

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matters since the law in England of exclusive cognizance has  no applicability in India which is governed and bound by the  Constitution of India.  Parliamentary privileges vis-‘-vis Fundamental Rights  Before considering judicial review in Indian context, it is  appropriate to first examine this aspect.  In the face of  arguments of illegalities in the procedure and the breach of  fundamental rights, it has been strongly contended on behalf  of the Union of India that Parliamentary privileges cannot be  decided against the touchstone of other constitutional  provisions, in general, and fundamental rights, in particular.   In this context, again it is necessary to seek  enlightenment from the judgments in the two cases of Pandit  Sharma as also the UP Assembly case where breach of  fundamental rights had been alleged by the persons facing the  wrong end of the stick.   In the case of Pandit Sharma (I), one of the two  principal points canvassed before the Court revolved around  the question as to whether the privilege of the Legislative  Assembly under Article 194 (3) prevails over the fundamental  rights of the petitioner (non-member in that case) under  Article 19(1)(a).  This contention was sought to be supported  on behalf of the petitioner through a variety of arguments  including the plea that though clause (3) of Article 194 had  not, in terms, been made "subject to the provision of the  Constitution" it would not necessarily mean that it was not so  subject, and that the several clauses of Article 194, or Article  105, should not be treated as distinct and separate provisions  but should be read as a whole and that, so read, all the  clauses should be taken as subject to  the provisions of the  Constitution which would include Article 19(1)(a).  It was also  argued that Article 194 (1), like Article 105 (1), in reality  operates as an abridgement of the fundamental rights of  freedom of speech conferred by Article 19(1) (a) when exercised  in Parliament or the State Legislature, as the case may be, but  Article 194 (3) does not purport to be an exception to Article  19(1) (a). It was then submitted that Article 19 enunciates a  transcendental principle and confers on the citizens of India  indefeasible fundamental rights of a permanent nature while  the second part of Article 194 (3) was of the nature of a  transitory provision which, from its very nature, could not  override the fundamental rights. Further, the contention  raised was that if in pursuance of Article 105 (3), Parliament  were to make a law under entry 74 in List I to the Seventh  Schedule defining the powers, privileges and immunities of the  Houses of Parliament and if the powers, privileges and  immunities so defined were repugnant to the fundamental  rights of the citizens, such law will, under Article 13, to the  extent of such repugnancy be void and this being the intention  of the Constitution-makers and there being no apparent  indication of a different intention in the latter part of the same  clause, the powers & privileges of the House of Commons  conferred by the latter part of clause (3) must also be taken as  subject to the fundamental rights. The arguments of the petitioner to above effect, however,  did not find favour with the Court. It was, inter alia, held that  the subject matter of each of the four clauses of Article 194  (which more or less correspond to Article 105) was different.  While clause (1) had been expressly made subject to the  provisions of the Constitution, the remaining clauses had not  been stated to be so subject, indicating that the Constitution  makers did not intend clauses (2) to (4) to be subject to the  provisions of the Constitution. It was ruled that the freedom of  speech referred to in clause (1) was different from the freedom  of speech and expression guaranteed under Article 19 (1) (a)

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and the same could not be cut down in any way by any law  contemplated by Article 19 (2). While agreeing with the  proposition that a law made by Parliament in pursuance of the  earlier part of Article 105 (3) would not be a law made in  exercise of constituent power but would be one made in  exercise of ordinary legislative powers under Article 246 read  with the relevant entries of the Seventh Schedule and that  consequently if such a law takes away or abridges any of the  fundamental rights, it would contravene the peremptory  provisions of Article 13 (2) and would be void to the extent of  such contravention, it was observed that this did not lead to  the conclusion that if the powers, privileges or immunities  conferred by the latter part of the said Article are repugnant to  the fundamental rights they must also be void to the extent of  repugnancy.  It was pointed out that it "must not be  overlooked that the provisions of Article 105 (3) and Article  194 (3) are constitutional laws and not ordinary laws made by  Parliament or the State Legislatures and that, therefore, they  are as supreme as the provisions of Part III". Interestingly, it  was also observed in the context of amenability of a law made  in pursuance of first parts of Article 105(3) and Article 194(3)  to the provisions of Article 13(2) that "it may well be that that  is perhaps the reason why our Parliament and the State  Legislatures have not made any law defining the powers,  privileges and immunities \005\005\005\005\005.." On the basis of conclusions so reached, this Court  reconciled the conflict between fundamental right of speech &  expression under Article 19(1)(a) on one hand and the powers  and privileges of the Legislative Assembly under Article 194(3)  on the other by holding thus:- "The principle of harmonious  construction must be adopted and so  construed, the provisions of Art.19(1)(a),  which are general, must yield to  Art.194(1) and the latter part of its cl. (3)  which are special"

Pandit Sharma had also invoked Article 21 to contend  that the proceedings before the Committee of Privileges of the  Legislative Assembly threatened to deprive him of personal  liberty otherwise than in accordance with the procedure  established by law. This Court, however, found that the  Legislative Assembly had framed rules of procedure under  Article 208 and, therefore, if the petitioner was eventually  deprived of his personal liberty as a result of the proceedings  before the Committee of Privileges, such deprivation would be  in accordance with the procedure established by law and,  therefore, a complaint of breach of fundamental rights under  Article 21 could not be made.  The Court then proceeded to  examine the case to test the contention that the procedure  adopted by the Legislative Assembly was not in accordance  with the standing orders laying down the rules of procedure  governing the conduct of its business made in exercise of  powers under Article 208. It is not possible to overlook developments in law post  Pandit Sharma, including UP Assembly case. In the course of addressing the issues raised in the case  of UP Assembly, this court had the occasion to examine both  parts of clause (3) of Article 194. Article 194 (1) provides  "freedom of speech" in the legislature, though subject to  provision of the Constitution and to the rules and standing  orders regulating the procedure of the House in question.  Article 194 (2) creates an absolute immunity, in favour of  members of the legislature, against liability to any proceedings  in any court in respect of anything said or any vote given by

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them in the legislative body or any committees thereof. The  first part of the clause (3) empowers the legislature to define  "by law" the powers, privileges and immunities of the House,  its members and the committees thereof, in respect other than  those covered by the earlier two clauses of Article 194. While construing the effect of the expression "subject to  the provisions of this Constitution and to the rules and  standing orders regulating the procedure of the legislature" as  used in Clause (1) of Article 194 which has been omitted in the  remaining clauses of the said Article, at page 443 this court  observed as under:- "It will thus be seen that all the 4 clauses  of the Article 194 are not in terms made  subject to the provisions contained in  Part III.  In fact, clause (2) is couched in  such wide terms that in exercising the  rights conferred on them by cl.(1), if the  legislators by their speeches contravene  any of the fundamental rights guaranteed  by Part III, they would not be liable for  any action in any court.  Nevertheless, if  for other valid considerations, it appears  that the contents of cl.(3) may not  exclude the applicability of certain  relevant provisions of the Constitution, it  would not be reasonable to suggest that  those provisions must be ignored just  because the said clause does not open  with the words "subject to the other  provisions of the Constitution."  In  dealing with the effect of the provisions  contained in cl. (3) of Art. 194, wherever  it appears that there is a conflict between  the said provisions and the provisions  pertaining to fundamental rights, an  attempt will have to be made to resolve  the said conflict by the adoption of the  rule of harmonious construction" (Emphasis supplied)

Reiterating the view taken in Pandit Sharma (I), it was  observed at page 452 as under:- "\005\005\005..It is true that the power to make  such a law has been conferred on the  legislatures by the first part of Article  194(3); but when the State Legislatures  purport to exercise this power, they will  undoubtedly be acting under Article 246  read with Entry 39 of List II. The  enactment of such a law cannot be said  to be in exercise of a constituent power,  and so, such a law will have to be treated  as a law within the meaning of Article 13.  That is the view which the majority  decision expressed in the case of Pandit  Sharma [(1959) Supp. 1 SCR 806], and  we are in respectful agreement with that  view."

This was reiterated yet again at page 497 of the said  judgment in the following words:- "-----------------that is one reason why the  Constitution-makers thought it necessary  that the legislatures should in due course  enact laws in respect of their powers,

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privileges and immunities, because they  knew that when such laws are made,  they would be subject to the fundamental  rights and would be open to examination  by the courts in India. Pending the  making of such laws, powers, privileges  and immunities were conferred by the  latter part of Article 194(3). As we have  already emphasised, the construction of  this part of the article is within the  jurisdiction of this Court, and in  construing this part, we have to bear in  mind the other relevant and material  provisions of the  Constitution\005\005\005\005\005\005." (Emphasis supplied)

In the case of UP Assembly, this Court observed that the  general issue as to the relevance and applicability of all the  fundamental rights guaranteed by Part III had not been raised  in the case of Pandit Sharma inasmuch as contravention of  only Article 19 (1) (a) and Article 21 had been pleaded,  therefore, it had not become necessary to consider the larger  issue as to whether the latter part of Article 194 (3) was  subject to the fundamental rights in general.  It was held that  in view of the majority opinion in case of Pandit Sharma (I),  "it could not be said that the said view excluded the  application of all fundamental rights, for the obvious and  simple reason that Article 21 was held to be applicable and the  merits of the petitioner’s argument about its alleged  contravention in his cases were examined and rejected." The  following observations appearing at p.451 in the case of UP  Assembly are instructive and need to be taken note of:- "Therefore, we do not think it would be  right to read the majority decision as  laying down a general proposition that  whenever there is a conflict between the  provisions of the latter part of Article  194(3) and any of the provisions of the  fundamental rights guaranteed by Part  III, the latter must always yield to the  former. The majority decision, therefore,  must be taken to have settled that Article  19(1)(a) would not apply, and Article 21  would."  (Emphasis supplied)

The Court proceeded to examine the applicability of  Article 20 to the exercises of power and privilege under Article  194 (3) and the right of the citizen to approach this Court for  redressal under Article 32.  In this context, in Para 125 (at  pages 492-93), it was held:- "\005\005\005\005\005..If Article 21 applies, Article  20 may conceivably apply, and the  question may arise, if a citizen complains  that his fundamental right had been  contravened either under Article 20 or  Article 21, can he or can he not move this  Court under Article 32? For the purpose  of making the point which we are  discussing, the applicability of Article 21  itself would be enough. If a citizen moves  this Court and complains that his  fundamental right under Article 21 had

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been contravened, it would plainly be the  duty of this Court to examine the merits  of the said contention, and that inevitably  raises the question as to whether the  personal liberty of the citizen has been  taken away according to the procedure  established by law. In fact, this question  was actually considered by this Court in  the case of Pandit Sharma [(1959) Supp.  1 SCR 806]. It is true that the answer  was made in favour of the legislature: but  that is wholly immaterial for the purpose  of the present discussion. If in a given  case, the allegation made by the citizen is  that he has been deprived of his liberty  not in accordance with law, but for  capricious or mala fide reasons, this  Court will have to examine the validity of  the said contention, and it would be no  answer in such a case to say that the  warrant issued against the citizen is a  general warrant and a general warrant  must stop all further judicial inquiry and  scrutiny. In our opinion, therefore, the  impact of the fundamental constitutional  right conferred on Indian citizens by  Article 32 on the construction of the  latter part of Article 194(3) is decisively  against the view that a power or privilege  can be claimed by the House, though it  may be inconsistent with Article 21. In  this connection, it may be relevant to  recall that the rules which the House has  to make for regulating its procedure and  the conduct of its business have to be  subject to the provisions of the  Constitution under Article 208(1)."  (Emphasis supplied)

The hollowness of the proposition of total immunity of the  action of the legislatures in such matters is brought out vividly  in the following words:- "\005\005\005\005..It would indeed be strange that  the Judicature should be authorised to  consider the validity of the legislative acts  of our legislatures, but should be  prevented from scrutinising the validity of  the action of the legislatures trespassing  on the fundamental rights conferred on  the citizens\005\005\005."  (Emphasis supplied)

Referring to the above observations the learned  Additional Solicitor General submitted that this observation  may be relevant to Article 21 in the limited context but cannot  be applied to all the fundamental rights.  It is the contention of  the learned counsel for Union of India and the learned  Additional Solicitor General that the case of UP Assembly was  restricted to the consideration of the exclusiveness of the right  of the Legislative Assembly to claim a general warrant issued  by it in respect of its contempt alleged to have been committed  by a citizen who was not a member of the House outside the  four-walls of the House and to the jurisdiction of the High  Court to entertain a Habeas Corpus petition on the allegations  of breach of fundamental rights of the said citizen. The learned

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counsel would point out that the majority judgment in the  course of setting out its conclusions pre-faced its answer with  the observation that "the answer is confined to cases in  relation to contempt alleged to have been committed by a  citizen who is not a member of the House outside the four- walls of the legislative chamber". The submission of the  learned counsel is that the Court in the said case had  deliberately omitted reference to infringement of privileges and  immunities of the Legislature other than those with which it  was concerned in the said matter and, therefore, the views  taken with regard to applicability of Article 20 or Article 21  could not be taken as law settled. The learned counsel for Union of India further submitted  that in exercise of the privileges of the House to regulate its  own proceedings including the power to expel a member, it  does not engage Article 14 or Article 19.  He referred to the  judgment of Canada Supreme Court in New Brunswick  Broadcasting Corporation v. Nova Scotia Speaker [1993  (1) SCR 391], in particular, the observations (page 373) to the  following effect:- "It is a basic rule, not disputed in this  case, that one part of the Constitution  cannot be abrogated or diminished by  another part of the Constitution:  Reference re  Bill 30, An Act to amend the  Education Act (Ont.), [1987] 1 SCR 1148.   So if the privilege to expel strangers from  the legislative assembly is constitutional,  it cannot be abrogated by the Charter,  even if the Charter otherwise applies to  the body making the ruling.  This raises  the critical question: is the privilege of the  legislative assembly to exclude strangers  from its chamber a constitutional power?"  

He also referred to the judgment of Canada Supreme  Court in the case of Harvey vs. New Brunswick [1996 (2)  SCR 876] and referred in particular to observations at pages  159 and 162 as under:- "This is not to say that the courts have  no role to play in the debate which arises  where individual rights are alleged to  conflict with parliamentary privilege.   Under the British system of  parliamentary supremacy, the courts  arguably play no role in monitoring the  exercise of parliamentary privilege.  In  Canada, this has been altered by the  Charter’s enunciation of values which  may in particular cases conflict with the  exercise of such privilege.  To prevent  abuses cloaked in the guise of privilege  from trumping legitimate Charter  interests, the courts must inquire into  the legitimacy of a claim of parliamentary  privilege. As this Court made clear in New  Brunswick Broadcasting, the courts may  properly question whether a claimed  privilege exists. This screening role  means that where it is alleged that a  person has been expelled or disqualified  on invalid grounds, the courts must  determine whether the act falls within the  scope of parliamentary privilege.  If the

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court concludes that it does, no further  review lies."

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"The authorities establish that expulsion  from the legislature of members deemed  unfit is a proper exercise of parliamentary  privilege.  Regarding the British House of  Commons, Erskine May, supra, wrote  that,"[n]o power  exercise by the  Commons is more undoubted than that  of expelling a member from the house, as  a punishment for grave offences" (p.58).   In Canada, J. G. Bourinot, in  Parliamentary Procedure and Practice in  the Dominion of Canada (2nd Ed. 1892),  at pp. 193-94, affirmed the same rule." (Emphasis supplied)

We may note that observations made by Canadian  Supreme Court in  House of Commons v. Vaid [(2005) 1 SCR  667] show that even in Canada, the approach is on change.   In Vaid, it is observed that "over the years, the assertion of  parliamentary privilege has varied in its scope and content".   Further, the court comments that much more recently the  Speaker in Canada stated "In my view, parliamentary privilege  does not go much beyond the right of free speech in the House  of Commons and the right of a member to discharge his duties  as a member of the House of Commons" (page 682).  Be that  as it may, in our considered opinion, the law laid down by the  Supreme Court of Canada has to be construed in the light of  Constitutional and statutory provisions in vogue in that  jurisdiction and have no relevance here in as much as it has  already been settled in the aforementioned cases by this Court  that the manner of enforcement of privilege by the legislature  can result in judicial scrutiny on the touch-stone of Articles 20  or 21, though subject to the restrictions contained in the other  Constitutional provision, for example Article 212 (1) in the  case of legislative assembly of the State (corresponding to  Article 122 in the case of Parliament).  We are unable to accept the argument of the learned  Counsel for Union of India for the simple reason that what this  Court "deliberately omitted" to do in the case of UP Assembly  was consideration of the powers, privileges and immunities  other than the contempt jurisdiction of the Legislature. The  views expressed as to the applicability of Article 20 and Article  21 in the context of manner of exercise of the powers and  privileges of the Legislative Assembly are of general import and  cannot be wished away. They would hold good not merely  against a non-member as was the case in that Reference but  even against a member of the Legislature who also is a citizen  of this country and entitled to the protection of the same  fundamental rights, especially when the impugned action  entails civil consequences. In the light of law laid down in the two cases of Pandit  Sharma and in the case of UP Assembly, we hold that the  broad contention on behalf of the Union of India that the  exercise of Parliamentary privileges cannot be decided against  the touchstone of fundamental rights or the constitutional  provisions is not correct.  In the case of Pandit Sharma the  manner of exercise of the privilege claimed by the Bihar  Legislative Assembly was tested against the "procedure  established by law" and thus on the touchstone of Article 21.   It is a different matter that the requirements of Article 21, as

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at the time understood in its restrictive meaning, were found  satisfied. The point to be noted here is that Article 21 was  found applicable and the procedure of the legislature was  tested on its anvil. This view was followed in the case of UP  Assembly which added the enforceability of Article 20 to the  fray. When the cases of Pandit Sharma and UP Assembly  were decided, Article 21 was construed in a limited sense,  mainly on the strength of law laid down in A.K. Gopalan v.  State of Madras [1950 SCR 88], in which a Constitution  Bench of this Court had held that operation of each Article of  the Constitution and its effect on the protection of  fundamental rights was required to be measured  independently.  The law underwent a total transformation  when a Constitution Bench (11 Judges) in Rustom Cavasjee  Cooper v. Union of India [(1970) 1 SCC 248] held that all the  provisions of the Constitution are required to be read  conjointly as to the effect and operation of fundamental rights  of the citizens when the State action infringed the rights of the  individual.  The jurisprudence on the subject has been  summarized by this Court in Para 27 of the judgment in  Ashok Kumar Gupta v. State of U.P. [(1997) 5 SCC 201], in  the following words :- "27. In A.K. Gopalan v. State of Madras  [1950 SCR 88], per majority, the  Constitution Bench had held that the  operation of each article of the  Constitution and its effect on the  protection of fundamental rights is  required to be measured independently  and not in conjoint consideration of all  the relevant provisions. The above ratio  was overruled by a Bench of 11 Judges in  Rustom Cavasjee Cooper v. Union of India  [(1970) 1 SCC 248]. This Court had held  that all the provisions of the Constitution  conjointly be read on the effect and  operation of fundamental right of the  citizens when the State action infringes  the right of the individual. In D.T.C. case  [1991 Supp (1) SCC 600] (SCC at  pp. 750-51, paras 297 and 298) it was  held that: "It is well-settled constitutional law  that different articles in the chapter  on Fundamental Rights and the  Directive Principles in Part IV of the  Constitution must be read as an  integral and incorporeal whole with  possible overlapping with the  subject-matter of what is to be  protected by its various provisions  particularly the Fundamental  Rights. ... The nature and content of the  protection of the fundamental rights  is measured not by the operation of  the State action upon the rights of  the individual but by its objects. The  validity of the State action must be  adjudged in the light of its operation  upon the rights of the individuals or  groups of individuals in all their  dimensions. It is not the object of  the authority making the law

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impairing the right of the citizen nor  the form of action taken that  determines the protection he can  claim; it is the effect of the law and  of the action upon the right which  attract the jurisdiction of the court  to grant relief. In Minerva Mills Ltd.  v. Union of India [(1980) 3 SCC 625]  the fundamental rights and directive  principles are held to be the  conscience of the Constitution and  disregard of either would upset the  equibalance built up therein. In  Maneka Gandhi case [(1978) 1 SCC  248] it was held that different  articles in the chapter of  fundamental rights of the  Constitution must be read as an  integral whole, with possible  overlapping of the subject-matter of  what is sought to be protected by its  various provisions particularly by  articles relating to fundamental  rights contained in Part III of the  Constitution do not represent  entirely separate streams of rights  which do not mingle at many points.  They are all parts of an integrated  scheme in the Constitution. Their  waters must mix to constitute that  grand flow of unimpeded and  impartial justice; social, economic  and political, and of equality of  status and opportunity which imply  absence of unreasonable or unfair  discrimination between individuals  or groups or classes. The  fundamental rights protected by  Part III of the Constitution, out of  which Articles 14, 19 and 21 are the  most frequently invoked to test the  validity of executive as well as  legislative actions when these  actions are subjected to judicial  scrutiny. Fundamental rights are  necessary means to develop one’s  own personality and to carve out  one’s own life in the manner one  likes best, subject to reasonable  restrictions imposed in the  paramount interest of the society  and to a just, fair and reasonable  procedure. The effect of restriction  or deprivation and not of the form  adopted to deprive the right is the  conclusive test\005\005\005\005."  (Emphasis supplied)

The enforceability of Article 21 in relation to the manner  of exercise of Parliamentary privilege, as affirmed in the cases  of Pandit Sharma and UP Assembly has to be understood in  light of the expanded scope of the said fundamental right  interpreted as above.   It is to be remembered that the plenitude of powers  possessed by the Parliament under the written Constitution is

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subject to legislative competence and restrictions of  fundamental rights and that in case a member’s personal  liberty was threatened by imprisonment of committal in  execution of Parliamentary privilege, Article 21 would be  attracted.   If it were so, we are unable to fathom any reason why the  general proposition that fundamental rights cannot be invoked  in matters concerning Parliamentary privileges should be  accepted.  Further, there is no reason why the member, or  indeed a non-member, should not be entitled to the protection  of Article 21, or for that matter Article 20, in case the exercise  of Parliamentary privilege contemplates a sanction other than  that of committal. Judicial Review \026 Effect of Article 122  

It is the contention of the learned Counsel for Union of  India that it should be left to the wisdom of the legislature to  decide as to on what occasion and in what manner the power  is to be exercised especially as the Constitution gives to it the  liberty of making rules for regulating its procedure and the  conduct of its business. He would refer to Article 122 (1) to  argue that the validity of proceedings in Parliament is a matter  which is expressly beyond the gaze of, or scrutiny by, the  judicature. It has been the contention on behalf of the Union  of India that the principle of exclusive cognizance of  Parliament in relation to its privileges under Article 105  constitutes a bar on the jurisdiction of the Court which is of  equal weight as other provisions of the Constitution including  those contained in Part III and, therefore, the manner of  enforcement of the privilege cannot be tested on the  touchstone of other such constitutional provisions, also in  view of the prohibition contained in Article 122. The issue of jurisdiction was one of the principal  concerns of this court in the case of UP Assembly, under the  cover of which the Uttar Pradesh Legislative Assembly had  asserted its right to commit Keshav Singh for contempt and  later had taken umbrage against the entertainment of a  petition for habeas corpus in the High Court under Article  226. The main controversy in that case squarely lay in the  question as to whether the legislature was "the sole and  exclusive judge" of the issue of contempt and of the  punishment that deserved to be awarded against the  contemnor, as against the jurisdiction claimed by the High  Court to entertain a writ challenging the validity of the  detention of the alleging contemnor. In the case of Pandit Sharma (II), while dealing with the  questions raised as to the regularity of the procedure adopted  by the House of the legislature, this court inter alia observed  as under at page 105:- "\005\005\005\005.the validity of the proceedings  inside the Legislature of a State cannot  be called in question on the allegation  that the procedure laid down by the law  had not been strictly followed. Article 212  of the Constitution is a complete answer  to this part of the contention raised on  behalf of the petitioner. No Court can go  into those questions which are within the  special jurisdiction of the Legislature  itself, which has the power to conduct its  own business\005\005\005." (Emphasis supplied)

The question of extent of judicial review of Parliamentary  matters has to be resolved with reference to the provision

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contained in Article 122 (1) that corresponds to Article 212  referred to in Pandit Sharma (II). On a plain reading, Article  122 (1) prohibits "the validity of any proceedings in  Parliament" from being "called in question" in a court merely  on the ground of "irregularity of procedure". In other words,  the procedural irregularities cannot be used by the court to  undo or vitiate what happens within the four walls of the  legislature. But then, ’procedural irregularity’ stands in stark  contrast to ’substantive illegality’ which cannot be found  included in the former. We are of the considered view that this  specific provision with regard to check on the role of the  judicial organ vis-‘-vis proceedings in Parliament uses  language which is neither vague nor ambiguous and,  therefore, must be treated as the constitutional mandate on  the subject, rendering unnecessary search for an answer  elsewhere or invocation of principles of harmonious  construction. Article 122 corresponds to Draft Article 101 which was  considered by the Constituent Assembly on 23rd May 1949.   Though the marginal note of the Article "Courts not to enquire  into proceedings of Parliament" clearly indicates the import of  the provision contained therein, Mr. H.V. Kamath introduced  an amendment that the words "in any court" be inserted after  the words "called in question" in Clause I.  Answering to the  debate that had followed, Dr. B.R. Ambedkar intervened and  clarified as under:- "The Honourable Dr. B.R. Ambedkar :  Sir, with regard to the amendment of Mr.  Kamath, I do not think it is necessary,  because where can the proceedings of  Parliament be questioned in a legal  manner except in a court?  Therefore the  only place where the proceedings of  Parliament can be questioned in a legal  manner and legal sanction obtained is  the court. Therefore it is unnecessary to  mention the words which Mr. Kamath  wants in his amendment.

For the reason I have explained, the  only forum where the proceedings can be  questioned in a legal manner and legal  relief obtained either against the  President or the Speaker or any officer or  Member, being the Court, it is  unnecessary to specify the forum.  Mr.  Kamath will see that the marginal note  makes it clear."  (Emphasis supplied)

The above indeed was a categorical clarification that  Article 122 does contemplate control by the courts over legality  of Parliamentary proceedings.  What the provision intended to  prohibit thus were cases of interference with internal  Parliamentary proceedings on the ground of mere procedural  irregularity. That the English cases laying down the principle of  exclusive cognizance of the Parliament, including the case of  Bradlaugh, arise out of a jurisdiction controlled by the  constitutional principle of sovereignty of Parliament cannot be  lost sight of. In contrast, the system of governance in India is  founded on the norm of supremacy of the Constitution which  is fundamental to the existence of the Federal State. Referring  to the distinction between a written Federal Constitution  founded on the distribution of limited Executive, Legislative

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and Judicial authority among bodies which are coordinate  with and independent of each other on the one hand and the  system of governance in England controlled by a sovereign  Parliament which has the right to make or unmake any law  whatever, this Court in the case of UP Assembly concluded  thus in Paras 39 and 40:- "39. Our legislatures have undoubtedly  plenary powers, but these powers are  controlled by the basic concepts of the  written Constitution itself and can be  exercised within the legislative fields  allotted to their jurisdiction by the three  Lists under the Seventh Schedule; but  beyond the Lists, the legislatures cannot  travel. They can no doubt exercise their  plenary legislative authority and  discharge their legislative functions by  virtue of the powers conferred on them by  the relevant provisions of the  Constitution; but the basis of the power  is the Constitution itself. Besides, the  legislative supremacy of our legislatures  including the Parliament is normally  controlled by the provisions contained in  Part III of the Constitution. If the  legislatures step beyond the legislative  fields assigned to them, or acting within  their respective fields, they trespass on  the fundamental rights of the citizens in a  manner not justified by the relevant  articles dealing with the said  fundamental rights, their legislative  actions are liable to be struck down by  courts in India. Therefore, it is necessary  to remember that though our legislatures  have plenary powers, they function within  the limits prescribed by the material and  relevant provisions of the Constitution.

40. In a democratic country governed by  a written Constitution, it is the  Constitution which is supreme and  sovereign. It is no doubt true that the  Constitution itself can be amended by the  Parliament, but that is possible because  Article 368 of the Constitution itself  makes a provision in that behalf, and the  amendment of the Constitution can be  validly made only by following the  procedure prescribed by the said article.  That shows that even when the  Parliament purports to amend the  Constitution, it has to comply with the  relevant mandate of the Constitution  itself. Legislators, Ministers, and Judges  all take oath of allegiance to the  Constitution, for it is by the relevant  provisions of the Constitution that they  derive their authority and jurisdiction  and it is to the provisions of the  Constitution that they owe allegiance.  Therefore, there can be no doubt that the  sovereignty which can be claimed by the  Parliament in England cannot be claimed  by any legislature in India in the literal

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absolute sense."  (Emphasis supplied)

The submissions of the learned counsel for Union of  India and the learned Additional Solicitor General seek us to  read a finality clause in the provisions of Article 122 (1) in so  far as parliamentary proceedings are concerned. On the  subject of finality clauses and their effect on power of judicial  review, a number of cases have been referred that may be  taken note of at this stage.   The case of Sub-Committee on Judicial Accountability  v. Union of India [(1991) 4 SCC 699], pertained to  interpretation of Articles 121 and 124 of the Constitution and  of the Judges (Inquiry) Act, 1968. One of the contentions  raised in that case pertained to the issue as to whether the  question if a motion had lapsed or not was a matter pertaining  to the conduct of the business of the House of Parliament of  which the House was taken as the sole and exclusive master.   It was contended that no aspect of the matter was justiciable  before a Court since Houses of Parliament are privileged to be  the exclusive arbiters of the legality of their proceedings.   Strong reliance, in this context, was placed on the decision in  Bradlaugh which, it was noted, arises out of a jurisdiction  where exclusiveness of Parliamentary control was covered by a  Statute.  In this context, the majority view was expressed in  the following words by this Court:- "61. But where, as in this country and  unlike in England, there is a written  Constitution which constitutes the  fundamental and in that sense a "higher  law" and acts as a limitation upon the  legislature and other organs of the State  as grantees under the Constitution, the  usual incidents of parliamentary  sovereignty do not obtain and the concept  is one of ’limited government’. Judicial  review is, indeed, an incident of and flows  from this concept of the fundamental and  the higher law being the touchstone of  the limits of the powers of the various  organs of the State which derive power  and authority under the Constitution and  that the judicial wing is the interpreter of  the Constitution and, therefore, of the  limits of authority of the different organs  of the State. It is to be noted that the  British Parliament with the Crown is  supreme and its powers are unlimited  and courts have no power of judicial  review of legislation.  

63. But it is the duty of this Court to  interpret the Constitution for the  meaning of which this Court is final  arbiter.  

65. The rule in Bradlaugh v.  Gossett[(1884)12 QBD 271 : 50 LT 620]  was held not applicable to proceedings of  colonial legislature governed by the  written Constitutions Barton v. Taylor  [(1886)11 AC 197 : 2 TLR 382] and  Rediffusion (Hong Kong) Ltd. v. Attorney  General of Hong Kong [(1970) AC 1136 :  (1970)2 WLR 1264].

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66. The principles in Bradlaugh [(1884)12  QBD 271 : 50 LT 620] is that even a  statutory right if it related to the sphere  where Parliament and not the courts had  exclusive jurisdiction would be a matter  of the Parliament’s own concern. But the  principle cannot be extended where the  matter is not merely one of procedure but  of substantive law concerning matters  beyond the parliamentary procedure.  Even in matters of procedure the  constitutional provisions are binding as  the legislations are enforceable. Of the  interpretation of the Constitution and as  to what law is the courts have the  constitutional duty to say what the law  is. The question whether the motion has  lapsed is a matter to be pronounced upon  the basis of the provisions of the  Constitution and the relevant laws.  Indeed, the learned Attorney General  submitted that the question whether as  an interpretation of the constitutional  processes and laws, such a motion lapses  or not is exclusively for the courts to  decide."  

The touchstone upon which Parliamentary actions within  the four-walls of the Legislature were examined was both the  constitutional as well as substantive law. The proceedings  which may be tainted on account of substantive illegality or  unconstitutionality, as opposed to those suffering from mere  irregularity thus cannot be held protected from judicial  scrutiny by Article 122 (1) inasmuch as the broad principle  laid down in Bradlaugh acknowledging exclusive cognizance  of the Legislature in England has no application to the system  of governance provided by our Constitution wherein no organ  is sovereign and each organ is amenable to constitutional  checks and controls, in which scheme of things, this Court is  entrusted with the duty to be watchdog of and guarantor of  the Constitution. Article 217(3) vests in the President of India the  jurisdiction to decide the question as to the age of a Judge of a  High Court, after consultation with the Chief Justice of India  and declares that the said decision of the President shall be  final. Interpreting this finality clause relatable to the powers of  the President, this Court in the case of Union of India v.  Jyoti Prakash Mitter [(1971) 1 SCC 396] observed in Para  32 as under:- "The President acting under Article 217(3)  performs a judicial function of grave  importance under the scheme of our  Constitution. He cannot act on the advice  of his Ministers. Notwithstanding the  declared finality of the order of the  President the Court has jurisdiction in  appropriate cases to set aside the order, if  it appears that it was passed on collateral  considerations or the Rules of natural  justice were not observed, or that the  President’s judgment was coloured by the  advice or representation made by the  executive or it was founded on no  evidence."

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Article 311 relates to the dismissal, removal etc. of  persons employed in civil capacities under the Union or a  State.  The second proviso to Article 311(2) empowers the  President or the Governor, as the case may be, to dispense  with the enquiry generally required to be held, upon  satisfaction that in the interest of the security of the State it is  not expedient to hold such enquiry.  Article 311(3) gives  finality to such decision in the following manner:- "If, in respect of any such person as  aforesaid, a question arises whether it is  reasonably practicable to hold such  inquiry as is referred to in clause (2), the  decision thereon of the authority  empowered to dismiss or remove such  person or to reduce him in rank shall be  final."

Construing the expression "finality" in the aforesaid  provision, this Court in Union of India v. Tulsiram Patel  [(1985) 3 SCC 398], in Para 138, observed as under:- "\005\005\005..The finality given by clause (3) of  Article 311 to the disciplinary authority’s  decision that it was not reasonably  practicable to hold the inquiry is not  binding upon the court. The court will  also examine the charge of mala fides, if  any, made in the writ petition. In  examining the relevancy of the reasons,  the court will consider the situation  which according to the disciplinary  authority made it come to the conclusion  that it was not reasonably practicable to  hold the inquiry. If the court finds that  the reasons are irrelevant, then the  recording of its satisfaction by the  disciplinary authority would be an abuse  of power conferred upon it by clause  (b)\005\005."

Article 191 relates to disqualifications for membership of  the State Legislature. The authority to decide the questions  arising as a result is vested in the Governor whose decision,  according to Article 192(1), "shall be final". Tenth Schedule was added to the Constitution by the  Constitution (52nd Amendment) Act 1985 with effect from 1st  March 1985, to provide for detailed provisions as to  disqualification on the ground of defection with reference, inter  alia, to Article 102(2) that deals with "disqualifications for  membership" of Parliament.  Paragraph 6(1), amongst others,  vests the authority to take a decision on the question of  disqualification on ground of defection unto the Chairman of  Rajya Sabha or the Speaker of Lok Sabha, as the case may be.  This provision declares that the decision of the said authority  "shall be final". Interestingly, Para 6 (2) states that all the  proceedings relating to decision on the question of  disqualification on the ground of defection "shall be deemed to  be proceedings in Parliament within the meaning of Article  122". Paragraph 7 of Tenth Schedule contains an express bar  of jurisdiction of courts.  It reads as under:- "Bar of jurisdiction of courts. \026  Notwithstanding anything in this  Constitution, no court shall have any  jurisdiction in respect of any matter

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connected with the disqualification of a  member of a House under this Schedule."

It was in the context of these provisions that questions  relating to the parameters of judicial review of the exercise of a  constitutional power in the face of constitutional bar on the  jurisdiction of the Court arose before a Constitution Bench of  this Court in the case of Kihoto Hollohan v. Zachillhu [1992  Supp (2) SCC 651].  The matter was examined by this Court  with reference, amongst others, to the immunity under Article  122, exclusivity of the jurisdiction vested in the authority  mentioned in the Tenth Schedule and the concept of "finality",  in addition to an express bar making it a non-justiciable area.   Construing the word "finality" and referring, inter alia, to  interpretation of similar finality clause in Article 217(3) in the  case of Jyoti Prakash Mitter and in Article 311(3) as  construed in Tulsiram Patel, this Court held that the  determinative jurisdiction of the Speaker or the Chairman in  the Tenth Schedule was a judicial power and it was  inappropriate to claim that it was within the non-justiciable  legislative area.  The Court referred to the case of Express  Newspaper (P) Ltd. v. Union of India [AIR 1958 SC 578]  and quoted the exposition as to what distinguishes a judicial  power from a legislative power in Australian Boot Trade  Employees Federation v. Whybrow & Co. [(1910) 10 CLR  266] by Issacs, J. as under:- "If the dispute is as to the relative rights  of parties as they rest on past or present  circumstances, the award is in the nature  of a judgment, which might have been the  decree of an ordinary judicial tribunal  acting under the ordinary judicial power.  There the law applicable to the case must  be observed. If, however, the dispute is as  to what shall in the future be the mutual  rights and responsibilities of the parties  \027 in other words, if no present rights are  asserted or denied, but a future rule of  conduct is to be prescribed, thus creating  new rights and obligations, with  sanctions for non-conformity \027 then the  determination that so prescribes, call it  an award, or arbitration, determination,  or decision or what you will, is essentially  of a legislative character, and limited only  by the law which authorises it. If, again,  there are neither present rights asserted,  nor a future rule of conduct prescribed,  but merely a fact ascertained necessary  for the practical effectuation of admitted  rights, the proceeding, though called an  arbitration, is rather in the nature of an  appraisement or ministerial act."       (Emphasis supplied)

The following observations in the judgment in Kihoto  Hollohan need to be quoted in extenso:- "96. The fiction in Paragraph 6(2),  indeed, places it in the first clause of  Article 122 or 212, as the case may be.  The words "proceedings in Parliament" or  "proceedings in the legislature of a State"  in Paragraph 6(2) have their  corresponding expression in Articles

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122(1) and 212(1) respectively. This  attracts an immunity from mere  irregularities of procedures.   99. Where there is a lis \027 an  affirmation by one party and denial by  another \027 and the dispute necessarily  involves a decision on the rights and  obligations of the parties to it and the  authority is called upon to decide it,  there is an exercise of judicial power.  That authority is called a Tribunal, if it  does not have all the trappings of a  Court. In Associated Cement Companies  Ltd. v. P.N. Sharma, (1965) 2 SCR 366,  this Court said: (SCR pp. 386-87)

"... The main and the basic test  however, is whether the  adjudicating power which a  particular authority is empowered to  exercise, has been conferred on it by  a statute and can be described as a  part of the State’s inherent power  exercised in discharging its judicial  function. Applying this test, there  can be no doubt that the power  which the State Government  exercises under Rule 6(5) and Rule  6(6) is a part of the State’s judicial  power.... There is, in that sense, a  lis; there is affirmation by one party  and denial by another, and the  dispute necessarily involves the  rights and obligations of the parties  to it. The order which the State  Government ultimately passes is  described as its decision and it is  made final and binding."  

101. In the operative conclusions we  pronounced on November 12, 1991 we  indicated in clauses (G) and (H) therein  that judicial review in the area is limited  in the manner indicated. If the  adjudicatory authority is a tribunal, as  indeed we have held it to be, why, then,  should its scope be so limited? The  finality clause in Paragraph 6 does not  completely exclude the jurisdiction of the  courts under Articles 136, 226 and 227 of  the Constitution. But it does have the  effect of limiting the scope of the  jurisdiction. The principle that is applied  by the courts is that in spite of a finality  clause it is open to the court to examine  whether the action of the authority under  challenge is ultra vires the powers  conferred on the said authority. Such an  action can be ultra vires for the reason  that it is in contravention of a mandatory  provision of the law conferring on the  authority the power to take such an  action. It will also be ultra vires the  powers conferred on the authority if it is

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vitiated by mala fides or is colourable  exercise of power based on extraneous  and irrelevant considerations. While  exercising their certiorari jurisdiction, the  courts have applied the test whether the  impugned action falls within the  jurisdiction of the authority taking the  action or it falls outside such jurisdiction.  An ouster clause confines judicial review  in respect of actions falling outside the  jurisdiction of the authority taking such  action but precludes challenge to such  action on the ground of an error  committed in the exercise of jurisdiction  vested in the authority because such an  action cannot be said to be an action  without jurisdiction. An ouster clause  attaching finality to a determination,  therefore, does oust certiorari to some  extent and it will be effective in ousting  the power of the court to review the  decision of an inferior tribunal by  certiorari if the inferior tribunal has not  acted without jurisdiction and has merely  made an error of law which does not  affect its jurisdiction and if its decision is  not a nullity for some reason such as  breach of rule of natural justice. [See:  Administrative Law, H.W.R. Wade, (6th  edn.), pp. 724-26; Anisminic Ltd. v.  Foreign Compensation Commission,  [1969] 1 All ER 208; S.E. Asia Fire Bricks  v. Non-Metallic Mineral Products  Manufacturing Employees Union, [1980]  2 All ER 689 (PC)]. \005\005  

109. In the light of the decisions referred  to above and the nature of function that  is exercised by the Speaker/Chairman  under Paragraph 6, the scope of judicial  review under Articles 136, and 226 and  227 of the Constitution in respect of an  order passed by the Speaker/Chairman  under Paragraph 6 would be confined to  jurisdictional errors only viz., infirmities  based on violation of constitutional  mandate, mala fides, non-compliance  with rules of natural justice and  perversity.

111. In the result, we hold on  contentions (E) and (F):

That the Tenth Schedule does not,  in providing for an additional grant  (sic ground) for disqualification and  for adjudication of disputed  disqualifications, seek to create a  non-justiciable constitutional area.  The power to resolve such disputes  vested in the Speaker or Chairman  is a judicial power.

That Paragraph 6(1) of the Tenth

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Schedule, to the extent it seeks to  impart finality to the decision of the  speakers/Chairmen is valid. But the  concept of statutory finality  embodied in Paragraph 6(1) does not  detract from or abrogate judicial  review under Articles 136, 226 and  227 of the Constitution insofar as  infirmities based on violations of  constitutional mandates, mala fides,  non-compliance with Rules of  Natural Justice and perversity, are  concerned.

That the deeming provision in  Paragraph 6(2) of the Tenth  Schedule attracts an immunity  analogous to that in Articles 122(1)  and 212(1) of the Constitution as  understood and explained in Keshav  Singh case to protect the validity of  proceedings from mere irregularities  of procedure. The deeming  provision, having regard to the  words ’be deemed to be proceedings  in Parliament’ or ’proceedings in the  legislature of a State’ confines the  scope of the fiction accordingly.

The Speakers/Chairmen while  exercising powers and discharging  functions under the Tenth Schedule  act as Tribunal adjudicating rights  and obligations under the Tenth  Schedule and their decisions in that  capacity are amenable to judicial  review."            (Emphasis supplied)

In answer to the above submissions, the learned counsel  for Union of India would argue that the actions of Houses of  Parliament in exercise of their powers and privileges under  Article 105 cannot be subjected to the same parameters of  judicial review as applied to other authorities. He would  submit that it was clarified in the case of Kihoto Hollohan  that the authority mentioned in the Tenth Schedule was a  Tribunal and the proceedings of disqualification before it are  not proceedings before the House and thus the decision under  Para 6(1) of the Tenth Schedule is not a decision of the House  nor is it subject to the approval of the House and rather  operates independently of the House. He would submit that  the decision of the House in regulating its own proceedings  including in the matter of expulsion of a member for breach of  privilege cannot be equated to the decision of such authority  as mentioned in the Tenth Schedule and the House in such  proceedings is not required to act in a quasi-judicial manner.   He would, in the same breath, concede that the House does  act even in such matters in conformity with rules of natural  justice. In our considered view, the principle that is to be taken  note of in the aforementioned series of cases is that  notwithstanding the existence of finality clauses, this court  exercised its jurisdiction of judicial review whenever and  wherever breach of fundamental rights was alleged.  President  of India while determining the question of age of a Judge of a  High Court under Article 217 (3), or the President of India (or

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the Governor, as the case may be) while taking a decision  under Article 311 (3) to dispense with the ordinarily  mandatory inquiry before dismissal or removal of a civil  servant, or for that matter the Speaker (or the Chairman, as  the case may be) deciding the question of disqualification  under Para 6 of the Tenth Schedule may be acting as  authorities entrusted with such jurisdiction under the  constitutional provisions. Yet, the manner in which they  exercised the said jurisdiction is not wholly beyond the judicial  scrutiny.  In the case of Speaker exercising jurisdiction under  the Tenth Schedule, the proceedings before him are declared  by Para 6 (2) of the Tenth Schedule to be proceedings in  Parliament within the meaning of Article 122. Yet, the said  jurisdiction was not accepted as non-justiciable. In this view,  we are unable to subscribe to the proposition that there is  absolute immunity available to the Parliamentary proceedings  relating to Article 105(3). It is a different matter as to what  parameters, if any, should regulate or control the judicial  scrutiny of such proceedings.  In the case of UP Assembly, the issue was authoritatively  settled by this Court, and it was held, at pages 455-456, as  under:- "Art.212(1) seems to make it possible for  a citizen to call in question in the  appropriate court of law the validity of  any proceedings inside the legislative  chamber if his case is that the said  proceedings suffer not from mere  irregularity of procedure, but from an  illegality. If the impugned procedure is  illegal and unconstitutional, it would be  open to be scrutinized in a court of law,  though such scrutiny is prohibited if the  complaint against the procedure is no  more than this that the procedure was  irregular."                 (Emphasis supplied)

With reference to the above-quoted observations  recognizing the permissibility of scrutiny in a court of law on  allegation that the impugned procedure was illegal or  unconstitutional, the learned Additional Solicitor General  submitted that these observations need to be clarified and the  expression "illegality" must necessarily mean  "unconstitutionality", that is violation of mandatory  constitutional or statutory provisions. The learned Additional Solicitor General has referred to  Tej Kiran Jain v. N. Sanjiva Reddy [(1970) 2 SCC 272].   This was a matter arising out of a suit claiming damages for  defamatory statement made by the respondent in Parliament.   The suit had been dismissed by the High Court of Delhi in  view of the immunity from judicial redress as stated in Article  105(2).  In this court, the contention urged was that the  immunity granted under Article 105(2) was confined to  "relevant Parliament business" and not to something which is  utterly irrelevant.  This contention was rejected by  Hidayatullah, C.J. through observations in Para 8 that read as  under:- "8. In our judgment it is not possible to  read the provisions of the article in the  way suggested. The article means what it  says in language which could not be  plainer. The article confers immunity  inter alia in respect of "anything said ...

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in Parliament". The word "anything" is of  the widest import and is equivalent to  "everything". The only limitation arises  from the words "in Parliament" which  means during the sitting of Parliament  and in the course of the business of  Parliament. We are concerned only with  speeches in Lok Sabha. Once it was  proved that Parliament was sitting and its  business was being transacted, anything  said during the course of that business  was immune from proceedings in any  Court this immunity is not only complete  but is as it should be. It is of the essence  of parliamentary system of Government  that people’s representatives should be  free to express themselves without fear of  legal consequences. What they say is only  subject to the discipline of the rules of  Parliament, the good sense of the  members and the control of proceedings  by the Speaker. The Courts have no say  in the matter and should really have  none."

The Ld. Additional Solicitor General has also placed  reliance on certain observations of this court in Indira Nehru  Gandhi vs. Raj Narain [1975 Suppl. SCC 1], in the context  of application of Article 122 on the contentions regarding  unconstitutionality of the Constitution (30th Amendment) Act  1975.  Beg J. in the course of his judgment in Paras 506 &  507 observed as under:- "506.Article 122 of the Constitution  prevents this Court from going into any  question relating to irregularity of  proceedings "in Parliament". XXXXXXXXXXXXXXXX

507.What is alleged by the election  petitioner is that the opposition members  of Parliament, who had been detained  under the preventive detention laws, were  entitled to get notice of the proposed  enactments and the Thirty-ninth  Amendment, so as to be present "in  Parliament", to oppose these changes in  the law. I am afraid, such an objection is  directly covered by the terms of Article  122 which debars every court from  examining the propriety of proceedings  "in Parliament". If any privileges of  members of Parliament were involved, it  was open to them to have the question  raised "in Parliament". There is no  provision of the Constitution which has  been pointed out to us providing for any  notice to each member of Parliament.  That, I think, is also a matter completely  covered by Article 122 of the  Constitution. All that this Court can look  into, in appropriate cases, is whether the  procedure which amounts to legislation  or, in the case of a constitutional  amendment, which is prescribed by  Article 368 of the Constitution, was gone

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through at all. As a proof of that,  however, it will accept, as conclusive  evidence, a certificate of the Speaker that  a Bill has been duly passed. (see: State of  Bihar v. Kameshwar(AIR 1952 SC 252,  266: 1952 SCR 889)" (Emphasis supplied)

In the same case construing the effect of the judgment in  the case of Pandit Sharma (II), Beg J. observed as under in  para 508:- "508. Again, this Court has held, in  Sharma v. Sri Krishna(AIR 1960 SC 1186,  1189: (1961) 1 SCR 96) that a notice  issued by the Speaker of a Legislature for  the breach of its privilege cannot be  questioned on the ground that the rules  of procedure relating to proceedings for  breach of privilege have not been  observed. All these are internal matters of  procedure which the Houses of  Parliament themselves regulate."

The submission of the Ld. Additional Solicitor General is  that the court recognized the inhibition against judicial  scrutiny of internal matters of procedure in which the Houses  of Parliament can rightfully assert the exclusive power to self- regulate. In our considered view, the question before the court in  the case of Indira Nehru Gandhi essentially pertained to the  lawfulness of the session of Parliament that had passed the  constitutional amendment measure.  The concern of the court  did not involve the legality of the act of the legislative body.  As  regards the views based on the holding in the case of Pandit  Sharma, it has already been observed that it was rather  premature for the court to consider as to whether any illegality  vitiated the process of the legislative assembly. The prohibition contained in Article 122 (1) does not  provide immunity in cases of illegalities. In this context,  reference may also be made to the case of Smt. S.  Ramaswami vs. Union of India [1992 Suppl. (1) SCR 108].   The case mainly pertained to Article 124 (4) read with Judges  (Inquiry) Act 1968.  While dealing, inter alia, with the  overriding effect of the rules made under Article 124(5) over  the rules made under Article 118, this court at page 187 made  the following observations:- "We have already indicated the  constitutional scheme in India and the  true import of clauses(4) and (5) of article  124 read with the law enacted under  Article 124(5), namely, the Judges  (Inquiry) Act, 1968 and the Judges  (Inquiry) Rules, 1969, which, inter alia  contemplate the provision for an  opportunity to the concerned Judge to  show cause against the finding of ’guilty’  in the report before the Parliament takes  it up for consideration along with the  motion for his removal.  Along with the  decision in Keshav Singh has to be read  the declaration made in Sub-Committee  on Judicial Accountability that ’a law  made under Article 124(5) will override  the rules made under Article 118 and  shall be binding on both the Houses of

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Parliament.  A violation of such a law  would constitute illegality and could not  be immune from judicial scrutiny under  Article 122(1)’.  The scope of permissible  challenge by the concerned Judge to the  order of removal made by the President  under Article 124(4) in the judicial review  available after making of the order of  removal by the President will be  determined on these  considerations........."  (Emphasis supplied)

The learned counsel for petitioners would refer, in the  above context, to a number of decisions rendered by different  High Courts adopting a similar approach to construe Article  122 or provisions corresponding thereto in other enactments.   Article 122(1) thus must be found to contemplate the  twin test of legality and constitutionality for any proceedings  within the four walls of Parliament. The fact that the case of  UP Assembly dealt with the exercise of the power of the House  beyond its four-walls does not affect this view which explicitly  interpreted a constitutional provision dealing specifically with  the extent of judicial review of the internal proceedings of the  legislative body. In this view, Article 122(1) displaces the  English doctrine of exclusive cognizance of internal  proceedings of the House rendering irrelevant the case law  that emanated from courts in that jurisdiction. Any attempt to  read a limitation into Article 122 so as to restrict the court’s  jurisdiction to examination of the Parliament’s procedure in  case of unconstitutionality, as opposed to illegality would  amount to doing violence to the constitutional text. Applying  the principle of "expressio unius est exclusio alterius"  (whatever has not been included has by implication been  excluded), it is plain and clear that prohibition against  examination on the touchstone of "irregularity of procedure"  does not make taboo judicial review on findings of illegality or  unconstitutionality. Parameters for Judicial review Re: Exercise of  Parliamentary privileges   

Learned Additional Solicitor General submitted that  having regard to the jurisdiction vested in the judicature  under Articles 32 and 226 of the Constitution on the one hand  and the tasks assigned to the legislature on the other, the two  organs must function rationally, harmoniously and in a spirit  of understanding within their respective spheres for such  harmonious working of the three constituents of the  democratic State alone will help the peaceful development,  growth and stabilization of the democratic way of life in the  country. We are in full agreement with these submissions. The Additional Solicitor General has further submitted  that while having regard to the importance of the functions  discharged by Parliament under the Constitution and the  majesty and grandeur of its task, it being the ultimate  repository of the faith of the people, it must be expected that  Parliament would always perform its functions and exercise its  powers, privileges and immunities in a reasonable manner, the  reasonableness of the manner of exercise not being amenable  to judicial review. His submission is that if Parliament were to  exercise its powers and privileges in a manner violative or  subversive of, or wholly abhorrent to the Constitution, a  limited area of judicial scrutiny would be available, which  limited judicial review would be distinct from the area of  judicial review that is available when administrative exercise of

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power under a statute falls for consideration. His argument is  that such limited judicial review is distinct from the exercise of  powers coupled with a purpose and also distinct from judicial  scrutiny on the ground of mala fides. It is his contention that  the courts of judicature in India have the power of judicial  review to determine the existence of privilege but once privilege  is shown to exist, the exercise of that privilege and the manner  of exercise that privilege must be left to the domain of  Parliament without any interference.  Further, learned  Additional Solicitor General submits that while what takes  place within the walls of the Parliament is not available for  scrutiny and even when the Parliament deals with matters  outside its walls, in a matter supported by an acknowledged  privilege, there would be little scrutiny and very limited and  restricted judicial review. We find substance in the submission that it is always  expected, rather it should be a matter of presumption, that  Parliament would always perform its functions and exercise its  powers in a reasonable manner.  But, at the same time there  is no scope for a general rule that the exercise of powers by the  legislature is not amenable to judicial review.  This is neither  the letter nor the spirit of our Constitution.  We find no reason  not to accept that the scope for judicial review in matters  concerning Parliamentary proceedings is limited and  restricted.  In fact this has been done by express prescription  in the constitutional provisions, including the one contained in  Article 122(1).  But our scrutiny cannot stop, as earlier held,  merely on the privilege being found, especially when breach of  other constitutional provisions has been alleged.   It has been submitted by the learned Additional Solicitor  General that judicial review is the ability of the courts to  examine the validity of action. Validity can be tested only with  reference to a norm.  He argues that where judicially  manageable standards, that is normative standards, are not  available, judicial review must be impliedly excluded. He has  submitted that Parliament is not a body inferior to the courts.  An administrative tribunal in whom statutory jurisdiction has  been vested can certainly be subjected to judicial review to  discover errors of fact or errors of law within its jurisdiction,  but Parliament cannot be attributed jurisdictional errors. We find the submissions substantially correct but not  entirely correct.  Non-existence of standards of judicial review  is no reason to conclude that judicial scrutiny is ousted.  If  standards for judicial review of such matters as at hand are  not yet determined, it is time to do so now.  Parliament indeed  is a coordinate organ and its views do deserve deference even  while its acts are amenable to judicial scrutiny.  While its acts,  particularly of the nature involved here ought not to be tested  in the same manner as an ordinary administrative action  would be tested, there is no foundation to the plea that a  Legislative body cannot be attributed jurisdictional error.  The learned Additional Solicitor General would further  argue that the exercise of powers and privileges must not be  treated as exercise of jurisdiction, but in fact exercise of  constituent power to preserve its character. He stated that the  Constitution did not contemplate that the contempt of  authority of Parliament would actually be tried and punished  in a Court of Judicature.  He submitted that the frontiers of  judicial review have now widened in that illegality, irrationality  and procedural impropriety could be causes, but such  principles have absolutely no basis in judging Parliament’s  action. While we agree that contempt of authority of Parliament  can be tried and punished nowhere except before it, the  judicial review of the manner of exercise of power of contempt

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or privilege does not mean the said jurisdiction is being  usurped by the judicature.  As has been noticed, in the  context of Article 122(1), mere irregularity of the procedure  cannot be a ground of challenge to the proceedings in  Parliament or effect thereof, and while same view can be  adopted as to the element of "irrationality", but in our  constitutional scheme, illegality or unconstitutionality will not  save the Parliamentary proceedings. It is the submission of the learned Additional Solicitor  General that the proceedings in question were proceedings  which were entitled to protection under Article 105(2).  In  other words, in respect of proceedings, if a member is offered  immunity, Parliament too is offered immunity.  The actions of  Parliament, except when they are translated into law, cannot  be questioned in court. We find the argument to be founded on reading of Article  105(2) beyond its context.  What is declared by the said clause  as immune from liability "to any proceedings in any court" is  not any or every act of the Legislative body or members  thereof, but only matters "in respect of anything said or any  vote given" by the members "in Parliament or any Committee  thereof".  If Article 105(2) were to be construed so broadly, it  would tend to save even the legislative Acts from judicial gaze,  which would militate against the constitutional provisions.   The learned Additional Solicitor General would urge that  to view Parliament as a body which is capable of committing  an error in respect of its powers, privileges and immunities  would be an indirect comment that Parliament may act  unwarrantedly.  There is every hope that the Indian  Parliament would never punish one for ’an ugly face’, or apply  a principle which is abhorrent to the constitution.  The learned counsel for the petitioners, on the other  hand, have submitted that upon it being found that the  plenitude of powers possessed by the Parliament under the  written Constitution is subject to legislative competence and  restrictions of fundamental rights; the general proposition that  fundamental rights cannot be invoked in matters concerning  Parliamentary privileges being unacceptable; even a member of  legislature being entitled to the protection of Articles 20 & 21  in case the exercise of Parliamentary privilege; and Article  122(1) contemplating the twin test of legality and  constitutionality for any proceedings within the four walls of  Parliament, as against mere procedural irregularity, thereby  displacing the English doctrine of exclusive cognizance of  internal proceedings of the House, the restrictions on judicial  review propagated by  learned Additional Solicitor General do  not deserve to be upheld.  We are of the view that the manner of exercise of the  power or privilege by Parliament is immune from judicial  scrutiny only to the extent indicated in Article 122(1), that is  to say the Court will decline to interfere if the grievance  brought before it is restricted to allegations of "irregularity of  procedure".  But in case gross illegality or violation of  constitutional provisions is shown, the judicial review will not  be inhibited in any manner by Article 122, or for that matter  by Article 105. If one was to accept what was alleged while  rescinding the resolution of expulsion by the 7th Lok Sabha  with conclusion that it was "inconsistent with and violative of  the well-accepted principles of the law of Parliamentary  privilege and the basic safeguards assured to all enshrined in  the Constitution", it would be partisan action in the name of  exercise of privilege.  We are not going into this issue but  citing the incident as an illustration.   Having concluded that this Court has the jurisdiction to  examine the procedure adopted to find if it is vitiated by any

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illegality or unconstitutionality, we must now examine the  need for circumspection in judicial review of such matters as  concern the powers and privileges of such august body as the  Parliament.  The learned Counsel for petitioners have submitted that  the expanded understanding of the fundamental rights in  general and Articles 14 and 21 in particular, incorporates  checks on arbitrariness.  They place reliance on the case of  Bachan Singh v. State of Punjab [(1982) 3 SCC 24]. In the case of Bachan Singh, this court, inter alia, held,  that "Article 14 enacts primarily a guarantee against  arbitrariness and inhibits State action, whether legislative or  executive, which suffers from the vice of arbitrariness" and  that "Article 14 \005\005\005. was primarily a guarantee against  arbitrariness in State action".  It was held in the context of  Article 21 that :- "17. The third fundamental right which  strikes against arbitrariness in State  action is that embodied in Article 21.  \005\005\005. \005\005\005\005\005\005\005\005 Article 21 affords  protection not only against executive  action but also against legislation and  any law which deprives a person of his  life or personal liberty would be invalid  unless it prescribes a procedure for such  deprivation which is reasonable, fair and  just. The concept of reasonableness, it  was held, runs through the entire fabric  of the Constitution\005\005\005\005..\005\005\005\005\005\005..  ..\005\005Every facet of the law which  deprives a person of his life or personal  liberty would therefore have to stand the  test of reasonableness, fairness and  justness in order to be outside the  inhibition of Article 21."   (Emphasis supplied)

It has been submitted by the petitioners that since the  validity of the procedure followed in enforcement of the  privilege by the Houses of Parliament is to be tested on the  touchstone of Article 20 and Article 21, the aforesaid tests of  reasonableness, non-arbitrariness, non-perversity, fairness  and justice come into play even in relation to the action of the  Legislature. On the other hand, learned Additional Solicitor General  submits that the full effect of judicial review with reference to  Article 21 in matters involving claim of privileges by the  legislature was not examined in the cases of Pandit Sharma  or the case of UP Assembly.  He further submits that the  expanded understanding of Article 21, taking into account its  inter-relationship with Articles 14 and 19 pertains to  developments subsequent to the aforementioned cases relating  to privileges of the legislature and that while scrutinizing the  exercise of power by Parliament it would not be possible to  employ either the test of "fair, just and reasonable" or the  principle of reasonableness in administrative action.   The submission further is that the only principle which  can afford judicial review is to examine whether the rule of the  Constitution which pre-supposes the underlying foundation of  separation of powers has not been infringed and a manifest  intrusion into judicial power vested in courts of justice has not  taken place.  To put slightly differently, according to the  learned Additional Solicitor General, the limited judicial review  would involve an inquiry as to whether the Parliament has not

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exercised privileges which are really matters covered by a  statute and whose adjudication would involve the exercise of  judicial power conferred by a statute or the Constitution. According to the learned Additional Solicitor General, the  discussion with reference to Article 21 in the case of Pandit  Sharma (I) proceeded upon a demurrer and, therefore, there  was no scope for a full-fledged discussion on the amenability  of the latter part of article 105(3) or Article 194(3) to the  restrictions contained in Article 21. In above context, he would refer to the case of Jatish  Chandra Ghosh v. Hari Sadhan Mukherjee [(1961) 3 SCR  486].  In that case, Dr. Ghosh, a member of the legislative  assembly, had published in a journal certain questions which  he had put in the assembly but which had been disallowed by  the Speaker. The questions disparaged the conduct of the  respondent who filed a criminal complaint against him and  others alleging defamation. Dr. Ghosh pleaded privileges and  immunity under Article 194 as a bar to criminal prosecution.   This claim was negatived, inter alia, on the grounds that the  matter fell clearly outside the scope of Article 194(1) and  Article 194(2) not being applicable since the publication was  not under the authority of the legislature nor could be termed  as something said or vote given in the legislature.  The claim  for immunity under Article 194(3) was also repelled for the  reason the immunity enjoyed by a member of House of  Commons is clearly confined to speeches made in Parliament  and does not extend to the publication of the debate outside.   It was held as under:- "There is no absolute privilege attaching  to the publication of extracts from the  proceedings in the House of Commons  and a member, who has absolute  privilege in respect of his speech in the  House itself, can claim only a qualified  privilege in respect of it if he causes the  same to be published in the public  press."

The Ld. Counsel for Union of India concluded his  submissions stating that in any exercise of judicial scrutiny of  acts of the legislature, there would always be a presumption  raised in favour of legitimate exercise of power and no motive  or mala fide can be attributed to it. In this context, he would  place reliance on observations of this court in the cases of K.  Nagaraj v. State of A.P. [(1985) 1 SCC 523] and T. Venkata  Reddy v. State of A.P. [(1985) 3 SCC 198].   In the case of Nagaraj, this court observed in Para 36 as  under:-

"36. The argument of mala fides  advanced by Shri A.T. Sampath, and  adopted in passing by some of the other  counsel, is without any basis. The burden  to establish mala fides is a heavy burden  to discharge. Vague and casual  allegations suggesting that a certain act  was done with an ulterior motive cannot  be accepted without proper pleadings and  adequate proof, both of which are  conspicuously absent in these writ  petitions. Besides, the Ordinance-making  power being a legislative power, the  argument of mala fides is misconceived.  The Legislature, as a body, cannot be  accused of having passed a law for an

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extraneous purpose. Its reasons for  passing a law are those that are stated in  the Objects and Reasons and if, none are  so stated, as appear from the provisions  enacted by it. Even assuming that the  executive, in a given case, has an ulterior  motive in moving a legislation, that  motive cannot render the passing of the  law mala fide. This fund of "transferred  malice" is unknown in the field of  legislation."  (Emphasis supplied)

In the case of T. Venkata Reddy, the relevant  observations in Para 14 read thus:- "14. \005\005\005\005\005. . the question is whether  the validity of an Ordinance can be tested  on grounds similar to those on which an  executive or judicial action is tested. The  legislative action under our Constitution  is subject only to the limitations  prescribed by the Constitution and to no  other. Any law made by the Legislature,  which it is not competent to pass, which  is violative of the provisions in Part III of  the Constitution or any other  constitutional provision is ineffective.  \005\005\005\005\005.. While the courts can declare  a statute unconstitutional when it  transgresses constitutional limits, they  are precluded from inquiring into the  propriety of the exercise of the legislative  power. It has to be assumed that the  legislative discretion is properly  exercised. The motive of the Legislature in  passing a statute is beyond the scrutiny  of courts. Nor can the courts examine  whether the Legislature had applied its  mind to the provisions of a statute before  passing it. The propriety, expediency and  necessity of a legislative act are for the  determination of the legislative authority  and are not for determination by the  courts. An Ordinance passed either  under Article 123 or under Article 213 of  the Constitution stands on the same  footing. \005\005\005\005\005. It cannot be treated  as an executive action or an  administrative decision."  (Emphasis supplied) On the question of mala fide, in the case of Pandit  Sharma (I), it was noticed that allegations in that nature had  been made against the Privileges Committee of the Legislative  Assembly. This Court observed "the Committee of Privileges  ordinarily includes members of all parties represented in the  House and it is difficult to expect that the Committee, as a  body, will be actuated by any mala fide intention against the  petitioner". In the case of U.P. Assembly, after finding that  Article 20 and Article 21 would apply, this Court in Para 125  recognized the permissibility of judicial review in the face of  the impugned action being vitiated on account of caprice or  mala fides, in the following words:-  "If in a given case, the allegation made by  the citizen is that he has been deprived of  his liberty not in accordance with law,

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but for capricious or mala fide reasons,  this Court will have to examine the  validity of the said contention, and it  would be no answer in such a case to say  that the warrant issued against the  citizen is a general warrant and a general  warrant must stop all further judicial  inquiry and scrutiny."

The learned counsel for Union of India conceded that  there would be a marginal power of correcting abuse and,  therefore, for judicial intervention but this necessity would  arise only in most outrageous or absurd situations where the  power had been abused under the guise of exercise of  privilege.  He again referred in this context to the judgment of  Canada Supreme Court in the case of Harvey vs. New  Brunswick [1996 (2) SCR 876] in particular to observations  at pages 159 as under:- "This is not to say that the courts have  no role to play in the debate which arises  where individual rights are alleged to  conflict with parliamentary privilege.   \005\005\005\005\005\005\005\005\005\005  To prevent abuses  cloaked in the guise of privilege from  trumping legitimate Charter interests, the  courts must inquire into the legitimacy of  a claim of parliamentary privilege.  \005\005\005\005\005.."  (Emphasis supplied)

While we have already rejected the reliance on the case  mentioned above in support of the plea of exclusive cognizance  vesting in the Legislature, and restriction of judicial review to  the extent of finding the privilege, we find support to the case  set up by the petitioners from constitutional provisions and  debates thereupon which show that it is the duty of the Court  to inquire into the legitimacy of the exercise of the power.   Dr. B.R. Ambedkar has described Article 32 as the very  soul of the Constitution \026 very heart of it \026 most important  Article.  That the jurisdiction conferred on this court by Article  32 is an important and integral part of the basic structure of  the Constitution of India and that no act of parliament can  abrogate it or take it away except by way of impermissible  erosion of fundamental principles of the constitutional scheme  are settled propositions of Indian jurisprudence.    In the case of State of Rajasthan v. Union of India  [(1977) 3 SCC 592], while dealing with the issues arising out  of communication by the then Union Home Minister to the  nine States asking them to advise their respective Governors  to observe the legislative assemblies and seek therefore  mandate from the people, this court observed in Para 40 as  under:- "This Court has never abandoned its  constitutional function as the final Judge  of constitutionality of all acts purported  to be done under the authority of the  Constitution. It has not refused to  determine questions either of fact or of  law so long as it has found itself  possessed of power to do it and the cause  of justice to be capable of being  vindicated by its actions. But, it cannot  assume unto itself powers the  Constitution lodges elsewhere or  undertake tasks entrusted by the

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Constitution to other departments of  State which may be better equipped to  perform them. The scrupulously  discharged duties of all guardians of the  Constitution include the duty not to  transgress the limitations of their own  constitutionally circumscribed powers by  trespassing into what is properly the  domain of other constitutional organs.  Questions of political wisdom or executive  policy only could not be subjected to  judicial control. No doubt executive policy  must also be subordinated to  constitutionally sanctioned purposes. It  has its sphere and limitations. But, so  long as it operates within that sphere, its  operations are immune from judicial  interference. This is also a part of the  doctrine of a rough separation of powers  under the Supremacy of the Constitution  repeatedly propounded by this Court and  to which the Court unswervingly adheres  even when its views differ or change on  the correct interpretation of a particular  constitutional provision."  (Emphasis supplied)

We reaffirm the said resolve and find no reason why in  the facts and circumstances at hand this court should take a  different view so as to abandon its constitutional functions as  the final judge of constitutionality of all acts purported to be  done under the authority of the Constitution, though at the  same time refraining from transgressing into the sphere that is  properly the domain of the Parliament. Learned Additional Solicitor General submits that in the  case of UP Assembly, the court had placed reliance on Articles  208 and 212 which contemplate that rules can be framed by  the legislature subject to the provisions of the Constitution  which in turn implies that such rules are compliant with the  fundamental rights guaranteed by Part III.  He submits that if  the rules framed under Article 118 (which corresponds to  Article 208) are consistent with Part III of the Constitution  then the exercise of powers, privileges and immunities is  bound to be a fair exercise and Parliament can be safely  attributed such an intention. While it is true that there is no challenge to the Rules of  Procedure and Conduct of Business in Lok Sabha and Rules of  Procedure and Conduct of Business in the Council of States,  as made by the two Houses of Parliament in exercise of  enabling powers under Article 118 (1), we are of the opinion  that mere availability of Rules is never a guarantee that they  have been duly followed.  What we are concerned with, given  the limits prescribed in Article 122(1), is not "irregularity of  procedure" but illegalities or unconstitutionalities. In the context of the discretionary power conferred on the  Central Government by Section 237(b) of the Companies Act,  1956 to order an investigation into the affairs of a company in  the event of the Government forming an opinion that  circumstances exist suggesting, inter alia, that the business of  the company is being conducted with intent to defraud its  creditors, this Court in the case of Barium Chemicals Ltd.  vs. Company Law Board [AIR 1967 SC 295] held that the  scope for judicial review of the action would be "strictly  limited".  While no difficulty would arise if it could be shown

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that no opinion had been formed, it was observed that:- "\005\005.there is a difference between not  forming an opinion at all and forming an  opinion upon grounds, which, if a court  could go into that question at all, could  be regarded as inapt or insufficient or  irrelevant."

It was further observed that:- "No doubt the formation of opinion is  subjective but the existence of  circumstances relevant to the inference  as the sine qua non for action must be  demonstrable."  (Emphasis supplied)

It was observed in Para 60 of the judgment as under:- "Though an order passed in exercise of  power under a statute cannot be  challenged on the ground of propriety or  sufficiency, it is liable to be quashed on  the ground of mala fides dishonesty or  corrupt purpose. Even if it is passed in  good faith and with the best of intention  to further the purpose of the legislation  which confers the power, since the  Authority has to act in accordance with  and within the limits of that legislation,  its order can also be challenged if it is  beyond those limits or is passed on  grounds extraneous to the legislation or if  there are no grounds at all for passing it  or if the grounds are such that no one  can reasonably arrive at the opinion or  satisfaction requisite under the  legislation. \005\005\005\005\005"  (Emphasis supplied)

In the case of Rohtas Industries Ltd. v. S.D. Agarwal  [(1969) 1 SCC 325], facing similar issues in the context of  same statutory provisions, this Court followed the principle  laid down in the case of Barium Chemicals and held that in  the event of existence of requisite conditions being  challenged:- "\005..the courts are entitled to examine  whether those circumstances were  existing when the order was made. In  other words, the existence of the  circumstances in question are open to  judicial review though the opinion formed  by the Government is not amenable to  review by the Courts."  (Emphasis supplied)

Holding that there must be a real exercise of the power  by the authority, it was further observed that:- "\005\005\005authority must be exercised  honestly and not for corrupt or ulterior  purposes. The authority must form the  requisite opinion honestly and offer  applying its mind to the relevant  materials before it." XXXXXXXXXXX "It ’must act reasonably and not  capriciously or arbitrarily’ and that if it

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were established that there were no  materials on which requisite opinion  could be formed, the Court could  legitimately ’infer that the authority did  not apply its mind to the relevant facts’."  (Emphasis supplied)

The case of S.R. Bommai v. Union of India [1994 (3)  SCC 1] had given rise to challenge to the constitutional validity  of the proclamation under Article 356 issued by the President,  inter alia, ordering dissolution of the Legislative Assembly of a  State, assuming to himself the functions of the Government of  the State, upon declaration of satisfaction that a situation had  arisen in which government of the said State cannot be carried  on in accordance with the provisions of the Constitution.  The  matter had given rise to questions about the scope of judicial  review of the satisfaction recorded by the President in such  behalf.  It was held through majority by the Constitution  Bench (9 Judges) of this Court that the exercise of power by  the President under Article 356(1) to issue such a  proclamation is subject to judicial review at least to the extent  of examining whether the conditions precedent to the issuance  of the proclamation have been satisfied or not.  For purposes  of such examination, the exercise would necessarily involve  "the scrutiny as to whether there existed material" for such a  satisfaction being arrived at.  It was held that it was not "any  material" but material "which would lead to the conclusion"  requisite for such proclamation and therefore, "the material in  question has to be such as would induce a reasonable man to  come to the conclusion in question".  The Court held that  although "the sufficiency or otherwise of the material cannot  be questioned, the legitimacy of inference drawn from such  material is certainly open to judicial review."  The following  observations appearing in Para 96 of the judgment in the case  of S.R. Bommai need to be quoted in extenso:- "Democracy and federalism are the  essential features of our Constitution and  are part of its basic structure. Any  interpretation that we may place on  Article 356 must, therefore help to  preserve and not subvert their fabric. The  power vested de jure in the President but  de facto in the Council of Ministers under  Article 356 has all the latent capacity to  emasculate the two basic features of the  Constitution and hence it is necessary to  scrutinise the material on the basis of  which the advice is given and the  President forms his satisfaction more  closely and circumspectly. This can be  done by the courts while confining  themselves to the acknowledged  parameters of the judicial review as  discussed above, viz., illegality,  irrationality and mala fides. Such  scrutiny of the material will also be  within the judicially discoverable and  manageable standards."  (Emphasis supplied)

Ramaswamy, J. in his separate judgment in the case of  S.R. Bommai observed in Para 255 as under:- "Judicial review is a basic feature of the  Constitution. This Court/High Courts  have constitutional duty and

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responsibility to exercise judicial review  as sentinel on the qui vive. Judicial  review is not concerned with the merits of  the decision, but with the manner in  which the decision was taken."  (Emphasis supplied)

In Para 256, Ramaswamy, J. clarified that:- "Judicial reveiw must be distinguished  from the justiciability by the court. The  two concepts are not synonymous. The  power of judicial review is a constituent  power and cannot be abdicated by  judicial process of interpretation.  However, justiciability of the decision  taken by the President is one of exercise  of the power by the court hedged by self- imposed judicial restraint. It is a cardinal  principle of our Constitution that no one,  howsoever lofty, can claim to be the sole  judge of the power given under the  Constitution. Its actions are within the  confines of the powers given by the  Constitution."  (Emphasis supplied)

At the same time he circumscribed the limits by  observing, in Para 260, as under:- "The traditional parameters of judicial  review, therefore, cannot be extended to  the area of exceptional and extraordinary  powers exercised under Article 356. The  doctrine of proportionality cannot be  extended to the power exercised under  Article 356 \005\005\005.."

In Para 215, he held that:- "The doctrine that the satisfaction  reached by an administrative officer  based on irrelevant and relevant grounds  and when some irrelevant grounds were  taken into account, the whole order gets  vitiated has no application to the action  under Article 356. Judicial review of the  Presidential Proclamation is not  concerned with the merits of the decision,  but to the manner in which the decision  had been reached. The satisfaction of the  President cannot be equated with the  discretion conferred upon an  administrative agency, of his subjective  satisfaction upon objective material like  in detention cases, administrative action  or by subordinate legislation. \005\005\005\005\005."  (Emphasis supplied)

Jeevan Reddy and Agrawal, JJ., in their separate but  concurring judgment, held that:-

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"\005\005..the truth or correctness of the  material cannot be questioned by the  court nor will it go into the adequacy of  the material. It will also not substitute its  opinion for that of the President. Even if  some of the material on which the action  is taken is found to be irrelevant, the  court would still not interfere so long as  there is some relevant material sustaining  the action. The ground of mala fides  takes in inter alia situations where the  Proclamation is found to be a clear case  of abuse of power, or what is sometimes  called fraud on power \027 cases where this  power is invoked for achieving oblique  ends. This is indeed merely an  elaboration of the said ground."  (Emphasis supplied)

They also recognized, in Para 375,  the need in such  matters for regard being had to the effect that what was under  the scanner before the adjudicator was the exercise of power  vested in highest constitutional authority.  They held as  under:- "It is necessary to reiterate that the court  must be conscious while examining the  validity of the Proclamation that it is a  power vested in the highest constitutional  functionary of the Nation. The court will  not lightly presume abuse or misuse. The  court would, as it should, tread wearily,  making allowance for the fact that the  President and the Union Council of  Ministers are the best judges of the  situation, that they alone are in  possession of information and material \027  sensitive in nature sometimes \027 and that  the Constitution has trusted their  judgment in the matter. But all this does  not mean that the President and the  Union Council of Ministers are the final  arbiters in the matter or that their  opinion is conclusive."  (Emphasis supplied) Jeevan Reddy and Agrawal, JJ., concurred with  Ramaswamy J., by observing, in Para 373, as under:- "So far as the approach adopted by this  Court in Barium Chemicals is concerned,  it is a decision concerning subjective  satisfaction of an authority created by a  statute. The principles evolved then  cannot ipso facto be extended to the  exercise of a constitutional power under  Article 356. Having regard to the fact that  this is a high constitutional power  exercised by the highest constitutional  functionary of the Nation, it may not be  appropriate to adopt the tests applicable  in the case of action taken by statutory or  administrative authorities \027 nor at any  rate, in their entirety."  (Emphasis supplied)

A controversy similar to the one in the case of S.R.  Bommai arose before this Court in Rameshwar Prasad v.

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Union of India [2006(2) SCC 1].  The questions raised once  again concerned the validity of the subjective satisfaction of  the President under Article 356 for issue of proclamation.   Following the spirit of the judgment of S.R. Bommai, with due  deference to the exceptional character of the power exercised  by the President under Article 356 which cannot be treated on  a par with an administrative action and so the validity whereof  cannot be examined by applying the grounds available for  challenge of an administrative action, this Court held that the  power is not absolute but subject to checks & balances and  judicial review.   Summary of the Principles relating to Parameter of  Judicial Review in relation to exercise of Parliamentary  Provisions

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  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

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parameters of judicial review and within the  judicially discoverable & manageable  standards, there is no foundation to the plea  that a legislative body cannot be attributed  jurisdictional error; h.      The Judicature is not prevented from  scrutinizing the validity of the action of the  legislature trespassing on the fundamental  rights conferred on the citizens; i.      The broad contention that the exercise of  privileges by legislatures cannot be decided  against the touchstone of fundamental rights  or the constitutional provisions is not correct;  j.      If a citizen, whether a non-member or a  member of the Legislature, complains that his  fundamental rights under Article 20 or 21 had  been contravened, it is the duty of this Court  to examine the merits of the said contention,  especially when the impugned action entails  civil consequences; k.      There is no basis to claim of bar of exclusive  cognizance or absolute immunity to the  Parliamentary proceedings in Article 105(3) of  the Constitution;  l.      The manner of enforcement of privilege by the  legislature can result in judicial scrutiny,  though subject to the restrictions contained in  the other Constitutional provisions, for  example Article 122 or 212; m.      Articles 122 (1) and Article 212 (1) displace the  broad doctrine of exclusive cognizance of the  legislature in England of exclusive cognizance  of internal proceedings of the House rendering  irrelevant the case law that emanated from  courts in that jurisdiction; inasmuch as the  same has no application to the system of  governance provided by Constitution of India n.      Article 122 (1) and Article 212 (1) prohibit the  validity of any proceedings in legislature from  being called in question in a court merely on  the ground of irregularity of procedure; o.      The truth or correctness of the material will  not be questioned by the court nor will it go  into the adequacy of the material or substitute  its opinion for that of the legislature;  p.      Ordinarily, the legislature, as a body, cannot  be accused of having acted for an extraneous  purpose or being actuated by caprice or mala  fide intention, and the court will not lightly  presume abuse or misuse, giving allowance for  the fact that the legislature is the best judge of  such matters, but if in a given case, the  allegations to such effect are made, the Court  may examine the validity of the said  contention, the onus on the person alleging  being extremely heavy q.      The rules which the legislature has to make for  regulating its procedure and the conduct of its  business have to be subject to the provisions  of the Constitution; r.      Mere availability of the Rules of Procedure and  Conduct of Business, as made by the  legislature in exercise of enabling powers  under the Constitution, is never a guarantee  that they have been duly followed;

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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;  

It can now be examined if the manner of exercise of the  power of expulsion in the cases at hand suffers from any such  illegality or unconstitutionality as to call for interference by  this Court.   Examination of the individual cases of the Petitioners  It is the contention of the petitioners that the impugned  action on the part of each House of Parliament expelling them  from the membership suffers from the vice of mala fide as  decision had already been taken to expel them. In this context  they would refer, inter alia, to the declaration on the part of  the Hon’ble Speaker, Lok Sabha on the floor of the House on  12th December 2005 that "nobody would be spared".  The  contention is that the inquiries were sham and the matter was  approached with a pre-determined disposition against all the  basic cannons of fair play & natural justice.  On the other hand, it has been argued by Shri  Andhyarujina that no mala fide or ulterior motive can be  attributed to the Houses of Parliament also for the reason that  the impugned decisions were taken by the Houses as a whole,  with utmost good faith in the interest of safeguarding the  standing and reputation of Parliament.  Learned counsel  would also submit that no member of either House had  disputed the findings of misconduct and it was not open to  anyone to question anything said or done in the House by  suggesting that the actions or words were inspired by  improper motives. As already observed in earlier part of this judgment, the  Legislature cannot ordinarily be accused of having acted for an  extraneous purpose or being actuated by caprice or malafide  intention.  The Court would not lightly presume abuse or  misuse of authority by such august bodies also because  allowance is always to be given to the fact that the legislature  is the best Judge in such matters.   In our considered view, conclusions cannot be drawn so  as to attribute motive to the Houses of Parliament by reading  statements out of the context.  The relevant part of the speech  of the Hon’ble Speaker made on the floor of the House on 12th  December 2005 has been extracted in the counter affidavit  filed on behalf of the Union of India. It is pertinent to note that  before stating that nobody would be spared, the Speaker had  exhorted the members of the House to rise to the occasion and  to see to it that such an event does not occur ever in future  and commended that "if anybody is guilty, he should be  punished".  It is clear that when he stated that no body would  be spared he was not immediately passing a judgment that the  petitioners were guilty.  He was only giving vent to his feeling  on the subject of the proper course of action in the event of

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inquiry confirming the facts that had been projected in the  telecast. The finding of guilt would come later. The fact that he  had constituted an Inquiry Committee with members drawn  also from parties in opposition rather goes to show that the  resolve at that stage was to find the truth.  In these circumstances, we are unable to accept the  allegation of malafide on the ground that decision had already  been taken to expel them.  Even otherwise, it cannot be  ignored that the dissent within the respective Committees of  the two Houses essentially pertained to the procedure  adopted. Nothing less and nothing more.  Further, the reports  of the Committees having been adopted by the respective  chambers of Parliament, the decision of the Committee got  merged into that of the Legislative chamber which being  collective body, it is difficult to attribute motive thereto, in  particular, in the face of the fact that the resolutions in  question were virtually unanimous as there was no demand at  any stage from any quarter for division of votes. It has been contended by the petitioners that the  circumstances did not warrant the exercise by the Houses of  Parliament of the power of expulsion inasmuch as the persons  behind the sting operations were driven by motives of pelf and  profit.  In this context, the learned counsel for petitioners  would refer repeatedly to the evidence, in particular, of Mr.  Aniruddha Bahal as adduced before the Inquiry Committee of  Lok Sabha wherein he would concede certain financial gains  on account of arrangements with the television channels for  telecast of the programme in question.   We are unable to subscribe to this reasoning so as to find  fault with the action that has been impugned before us. We  are not concerned here with what kind of gains, financial or  otherwise, those persons made as had conceived or engineered  the sting operations leading to the material being brought into  public domain through electronic media. This was not an area  of anxiety even for the Houses of Parliament when they set  about probing the matter resulting ultimately in expulsions.   The sole question that was required to be addressed by the  Inquiry Committees and the Legislative chambers revolved  around the issue of misconduct attributed to the individual  members bringing the House in disrepute. We, therefore, reject  the above contention reiterating what we have already  concluded, namely, that the expediency and necessity of  exercise of such a power by the Legislature is for  determination by the latter and not by the Courts. The petitioners have questioned the validity of the  impugned actions on the ground that the settled procedure  and mechanism for bringing about cessation of the  membership were by-passed.   In the above context, reference was first made to the  procedure prescribed in Article 103 and the Tenth Schedule.  But then, we have already found that the purposes of the  procedure prescribed in both the said provisions of the  Constitution are entirely different. While Article 103 relates to  disqualifications prescribed in Article 102, the tenth schedule  pertains to the disqualification on account of defection. These  provisions have no nexus whatsoever with the exercise of  power of expulsion claimed as a privilege available to the  Houses of Parliament under Article 105(3).  This argument,  therefore, cannot cut any ice in favour of the petitioners. The main thrust of the submissions of the petitioners in  the context of avoidance of settled procedure and mechanism,  however, was on the fact that the machinery of Privileges  Committee for which provision exists in the Rules of Procedure  and Conduct of Business for each of the two Houses was not  resorted to. It has been contended that the matters were

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referred, for no just or sufficient reason, to Inquiry Committees  other than the Privileges Committees, in the case of Lok Sabha  to a Committee specially set up for the purpose. This, as per  the arguments vociferously advanced on behalf of the  petitioners, should be held as sufficient to vitiate the whole  process.  Mr. Ram Jethamalani, Senior Advocate went to the  extent of suggesting that the procedure followed was ad-hoc  procedure and, therefore, it could not be claimed by anyone  that the established procedure had been complied with. We find no substance in the abovesaid grievances of the  petitioners.  The matters pertaining to the two Members of  Rajya Sabha were referred to the Committee on Ethics which  is also a mechanism provided by the Rules of Procedure and  Conduct of Business in the said House. While it is correct that  the matters pertaining to the Members of Lok Sabha were  referred to a Committee specially constituted for the purpose  but nothing turns on that fact. It may be observed that under  circumstances in question the composition of the Committee  itself is sufficient to show that it was not a partisan  Committee.  The terms of reference for the Committee required  it to make investigation into the allegations.  The conclusions reached by the Inquiry Committee and  recommendations made have been accepted by passing of  resolutions by the two Houses that have adopted the reports of  the respective Committees. Article 118 empowers each House of Parliament to make  rules for regulating its procedure.  The rules of the procedure  of both Houses permit constitution of Committees.  There is no  illegality attached to constitution of a Special Committee by  the Speaker, Lok Sabha for purposes of investigation into the  allegations against members of the said House. The argument  of ad-hoc procedure, therefore, does not appeal to us. The petitioners’ case is that the procedures adopted by  the Committees of the two Houses were neither reasonable nor  fair. Further, they contend that the entire inquiry was  improper and illegal inasmuch as rules of natural justice were  flouted.  In this context, the grievances of the petitioners are  manifold.  They would state that proper opportunity was not  given to them to defend themselves; they were denied the  opportunity of defending themselves through legal counsel or  to give opportunity to explain; the request for supply of the  material, in particular the un-edited versions of videography  for testing the veracity of such evidence was turned down and  doctored or morphed video-clippings were admitted into  evidence, the entire procedure being unduly hurried.  As  already noted the scope of judicial review in these matters is  restricted and limited.  Regarding non-grant of reasonable  opportunity, we reiterate what was recently held in Jagjit  Singh v. State of Haryana & Ors. [WP (C) No. 287 of 2004  decided on 11.12.2006] that the principles of natural justice  are not immutable but are flexible; they cannot be cast in a  rigid mould and put in a straitjacket and the compliance  thereof has to be considered in the facts and circumstances of  each case. We outrightly reject the argument of denial of reasonable  opportunity and also that proceedings were concluded in a  hurry. It has become almost fashionable to raise the banner of  "Justice delayed is justice denied" in case of protracted  proceedings and to argue "Justice hurried is justice buried" if  the results are quick. We cannot draw inferences from the  amount of time taken by the Committees that inquired the  matters as no specific time is or can be prescribed.  Further  such matters are required to be dealt with utmost expedition  subject to grant of reasonable opportunity, which was granted  to the petitioners.

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As has been pointed out by the learned counsel on behalf  of the Union of India, basing his submissions on the main  report of the Inquiry Committee of Lok Sabha, the request for  supply of full-footage of video recordings and audio tapes or  extension of time or representation through counsel for such  purposes did not find favour with the Inquiry Committee  mainly because the Committee had offered to the concerned  Members of Lok Sabha an opportunity to view the relevant  video-footage that was available with the Committee and point  out the discrepancies therein, if any, to the it. But, as is  mentioned in the report copy of which has been made  available by the Union of India to us, the petitioners  themselves chose to turn down the said offer.  The situation  was almost similar to the one in Jagjit Singh’s case. We agree with the submissions of the learned counsel for  Union of India that the Inquiry Committee in the face of the  refusal on the part of the concerned members was fully  justified in not giving any credence to the objections that the  video-clippings were doctored or morphed. The Committee in  these circumstances could not be expected but to proceed to  draw conclusions on the basis of the available material.  The reports of the Inquiry Committee of Lok Sabha and  the Committee on Ethics of Rajya Sabha indicate that both of  the said Committees had called for explanations from each of  the Members in question and had given due consideration to  the same. The submissions of the learned counsel for Union of  India that the proceedings of the respective Committees were  open to one and all, including these petitioners who actually  participated in the proceedings could not be refuted.  Therefore, it is not permissible to the petitioners to contend  that evidence had been taken behind their back. The reports  further show that the Committees had taken care not to  proceed on the edited versions of the video recordings. Each of  them insisted and procured the raw video-footage of the  different sting operations and drew conclusions after viewing  the same. As pointed out by the learned counsel for Union of  India, the evidence contained in the video recordings  indicating demand or acceptance of money was further  corroborated in two cases by the admissions made by the two  Members of Rajya Sabha. Dr. Chhattrapal Singh Lodha had  sought to attribute the receipt of money to a different  transaction connected with some organization he was heading.  But this explanation was not believed by the Committee on  Ethics that unanimously found his complicity in unethical  behavior on account of acceptance of money for tabling  questions in Rajya Sabha. Dr. Swami Sakshiji Maharaj, on the  other hand, went to the extent of expressing his regrets and  displaying a feeling of shame for his conduct even before the  Committee on Ethics. It is the contention of the petitioners that the evidence  relied upon by the two Houses of Parliament does not inspire  confidence and could not constitute a case of breach of  privilege.  Their argument is that the decision of expulsion is  vitiated since it violated all sense of proportionality, fairness,  legality, equality, justice or good conscience, and it being bad  in law also because, as a consequence, the petitioners have  suffered irreparable loss inasmuch as their image and prestige  had been lowered in the eyes of the electorate.   We are of the considered view that the impugned  resolutions of Lok Sabha and Rajya Sabha cannot be  questioned before us on the plea of proportionality. We are not  sitting in appeal over the decision of the Legislative chambers  with regard to the extent of punishment that deserved to be  meted out in cases of this nature. That is a matter which must  be left to the prerogative and sole discretion of the legislative

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body. All the more so because it is the latter which is the best  Judge in exercise of its jurisdiction the object of which is self- protection. So long as the orders of expulsion are not illegal or  unconstitutional, we are not concerned with the consequences  for the petitioners on account of these expulsions.  In these proceedings, this Court cannot not allow the  truthfulness or correctness of the material to be questioned or  permit the petitioners to go into the adequacy of the material  or substitute its own opinion for that of the Legislature.   Assuming some material on which the action is taken is found  to be irrelevant, this Court shall not interfere so long as there  is some relevant material sustaining the action. We find this  material was available in the form of raw footage of video  recordings, the nature of contents whereof are reflected in the  Inquiry reports and on which subject the petitioners have not  raised any issue of fact.  On perusal of the Inquiry reports, we find that there is no  violation of any of the fundamental rights in general and  Articles 14, 20 or 21 in particular. Proper opportunity to  explain and defend having been given to each of the  petitioners, the procedure adopted by the two Houses of  Parliament cannot be held to be suffering from any illegality,  irrationality, unconstitutionality, violation of rules of natural  justice or perversity. It cannot be held that the petitioners  were not given a fair deal.   Before concluding, we place on record our appreciation  for able assistance rendered by learned counsel for the parties  in the matter. In view of above, we find no substance in the pleas of the  petitioners. Resultantly, all the Petitions and Transferred  Cases questioning the validity of the decisions of expulsion of  the petitioners from the respective Houses of Parliament, being  devoid of merits are dismissed.