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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: R. V. Raveendran

JUDGMENT: J U D G M E N T

With TC (C) Nos. 82/2006, 83/2006, 84/2006, 85/2006, 86/2006, 87/2006,  88/2006, 89/2006, 90/2006 and WP (C) No. 129/2006.  

RAVEENDRAN J.,  

"Those three great institutions \026 the Parliament, the Press  (Media) and the Judges \026 are safeguards of justice and liberty,  and they embody the spirit of the Constitution."  - Lord Denning

I have had the privilege of reading the exhaustive and erudite  judgment of the learned Chief Justice and the illuminating concurring  judgment of learned Brother Thakker J., upholding the expulsion of ten  members of Lok Sabha and one member of Rajya Sabha. I respectfully  disagree.  

Factual Background :

2.      On 12.12.2005, a TV News Channel - Aaj Tak showed some video- footage of some persons, alleged to be members of Parliament accepting  money for tabling questions or raising issues in the House, under the caption  ’operation  Duryodhana’ ("Cash for Questions"). On the same day when the  House met, the Hon’ble Speaker made the following statement :-  

"Hon. Members, certain very serious events have come to my  notice as also of many other Hon. Members. It will be looked  into with all importance it deserves. I have already spoken to  and discussed with all Hon. Leaders of different parties,  including the Hon. Leader of the Opposition, and all have  agreed that the matter is extremely serious if proved to be  correct. I shall certainly ask the Hon. Members to explain what  has happened. In the meantime, I am making a personal request  to all them ’please do not attend the Sessions of the House until  the matter is looked into and a decision is taken’\005\005 I have no  manner of doubt that all sections of the House feel deeply  concerned about it. I know that we should rise to the occasion  and we should see that such an event does not occur ever in  future and if anybody is guilty, he should be punished. Nobody  would be spared. We shall certainly respond to it in a manner  which behaves us. Thank you very much."

On the same day, at about 6 P.M., the Hon’ble Speaker made another  statement on the issue, announcing the constitution of an Enquiry Committee  consisting of five Parliamentarians. Relevant portion of that statement is  extracted below :

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"I have decided, which has been agreed to by the Hon. Leaders,  that all the concerned Members will be asked to submit their  individual statements/explanations regarding the allegations  made against them today on the TV Channel Aaj Tak before  10.30 a.m. on 14th December, 2005. The  statements/explanations given by those members will be placed  before the Enquiry Committee consisting of the following Hon.  Members  -  

1.      Shri Pawan Kumar Bansal (Chairman) 2.      Prof. Vijay Kumar Malhotra 3.      Md. Salim  4.      Prof. Ram Gopal Yadav 5.      Thiru C. Kuppusami  

The Committee is requested to give its Report by 4 p.m. on 21st  December, 2005. The Committee is authorized to follow its  own procedure. The Report will be presented before the House  for its consideration.  

4.      The Lok Sabha Secretariat sent communications dated 12.12.2005 to  the ten members calling for their comments in regard to the improper  conduct shown in the video footage. They were also instructed not to attend  the sitting of the House till the matter was finally decided. The members  submitted their responses and denied any wrong doing on their part. The  Speaker secured VCDs containing the video footage showing ’improper  conduct’ from the News Channel. The ten members were supplied copies  thereof. The Enquiry Committee examined on oath Shri Aniruddha Bahl,  Ms. Suhasini Raj and Shri Kumar Badal of the Portal "Cobrapost.Com" who  had carried the sting operation. The Committee viewed all the VCDs  containing the relevant video footage as also the unedited raw video footage  and perused the transcripts. The ten members alleged that the video tapes  were morphed/manipulated, but, however, refused to view the video  clippings in the presence of the Committee and point out the portions which  according to them were morphed/manipulated. They were not given any  opportunity to cross-examine the sting operators, nor granted copies of the  entire unedited video footage and other documents requested by them.  

5.      After considering the said material, the committee submitted its report  dated 22.12.2005 to the Speaker. It was tabled in the House on the same day.  The said report contained the following findings :  

a)      The representatives of the Portal "Cobrapost.com"  namely Shri Aniruddha Bahal, Ms. Suhasini Rajand and  Shri Kumar Badal approached the members posing as  representatives of the fictitious company, through a  number of middlemen, some of whom were working as  Private Secretaries/Personal Assistants of the members  concerned. They requested the members to raise  questions in Lok Sabha and offered them money as   consideration. Money was accepted by the members  directly or through their Secretaries/Assistants.  Acceptance of money by the ten members was thus  established.  

b)      The plea put forth by the ten members that the video  footages were morphed/manipulated has no merit. Their  conduct was unbecoming of members of Parliament,  unethical and called for strict action.

c)      Stern action also needs to be taken against the  middlemen, touts and persons masquerading as Private  Secretaries of members since they are primarily

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responsible for inducting members of Parliament into  such activities.  

The Committee was of the view that in the case of misconduct by the  members or contempt of the House by the members, the House can impose  any of the following punishments : (i) admonition; (ii) reprimand; (iii)  withdrawal from the House; (iv) suspension from the House; (v)  imprisonment; and (vi) expulsion from the House. The Committee  concluded that continuance of the ten persons as members of Lok Sabha was  untenable and recommended their expulsion.  On 23.12.2005, the Leader of the House moved the following Motion in the  House :  

"That this House having taken note of the Report of the  Committee to inquire into the allegations of improper conduct  on the part of some members, constituted on 12th December,  2005, accepts the finding of the Committee that the conduct of  the ten members of Lok Sabha namely, Shri Narendra Kumar  Kushawaha, Shri Annasaheb M. K. Patil, Shri Manoj Kumar,  Shri Y. G. Mahajan, Shri Pradeep Gandhi, Shri Suresh Chandel,  Shri Ramsevak Singh, Shri Lal Chandra Kol, Shri Rajaram Pal  and Shri Chandra Pratap Singh was unethical and unbecoming  of members of Parliament and their continuance as members of  Lok Sabha is untenable and resolves that they may be expelled  from the membership of Lok Sabha."  

An amendment to the Motion for referring the matter to the Privileges  Committee, moved by a member (Prof. Vijay Kumar Malhotra), was  rejected. After a debate, the Motion was adopted by voice vote. As a  consequence on the same day, a notification by the Lok Sabha Secretariat  was issued notifying that ’consequent on the adoption of a Motion by the  Lok Sabha on the 23rd December, 2005 expelling the ten members from the  membership of the Lok Sabha’, the ten members ceased to be members of  the Lok Sabha, with effect from the 23rd December, 2005 (afternoon).’  

7.      Similar are the facts relating to Dr. Chhattrapal Singh Lodha, Member  of Rajya Sabha. On 12.12.2005, the Chairman of the Rajya Sabha made a  statement in the House that the dignity and prestige of the House had  suffered a blow by the incidents shown on the TV Channel, that it was  necessary to take action to maintain and protect the integrity and credibility  of the House, and that he was referring the episode  to the Ethics Committee  for its report. On the same day, Ethics Committee held a meeting and took  the view that the member had prima facie contravened Part V of the Code of  Conduct which provided :         

"Members should never expect or accept any fee, remuneration or benefit  for a vote given or not given by them on the floor of the House, for  introducing a Bill, for moving a resolution or desisting from moving a  resolution, putting a question or abstaining from asking a question or  participating in the deliberations of the house or a Parliamentary  Committee."  

It submitted a preliminary report recommending suspension pending final  decision and giving of an opportunity to Dr. Lodha to explain his position.  The said report was accepted. By letter dated 13.12.2005. Dr. Lodha was  required to give his comments by 1 P.M. on 15.12.2005. Thereafter the   Committee gave a report holding that the member had contravened Part V of  the Code of Conduct and had acted in a manner which seriously impaired the  dignity of the House and brought the whole institution of Parliamentary  democracy into disrepute. The Committee recommended Dr. Lodha to be  expelled from the membership of the House. On 23.12.2005, the Chairman  of the Ethics Committee moved that its final report be accepted. After  debate, the House agreed with the recommendation in the report by voice  vote. As a consequence, the Secretary General of Rajya Sabha issued a

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notification dated 23.12.2005 declaring that Dr. Lodha had ceased to be a  member of the Rajya Sabha with effect from that date.  

The Issue :

8.      The petitioners contend that there can be cessation of membership of  either House of Parliament only in the manner provided in Articles 101 and  102; and that cessation of membership by way of expulsion is alien to the  constitutional framework of Parliament. It is submitted that a person can be  disqualified for being a member of Parliament on the ground of corruption,  only upon conviction for such corruption as contemplated under section 8 of  Representation of People Act, 1951 read with clause (1)(e) of Article 102. It  is submitted that there can be no additions to grounds for cessation of  membership under Articles 101 and 102, unless it is by a law made by  Parliament as contemplated under Article 102(1)(e), or by an amendment to  the Constitution itself. It is further submitted that reading the power of  expulsion, as a part of parliamentary privilege under Article 105(3) is  impermissible. It is, therefore, submitted that Parliament has no power of  expulsion (permanent cessation of membership). On the other hand, the  Union of India and the Attorney General assert that Parliament has such  power. The assertion is based on two premises. First is that Article 101  relating to vacancies is not exhaustive. The Second is that the power of  Parliament to expel a member is a part of the powers, privileges and  immunities conferred on the Parliament, under Article 105(3), and it  is  distinct and different from ’disqualifications’ contemplated under Article  102.  

9.      When the incident occurred, the response of the Hon. Speaker and the   Parliament, in taking prompt remedial action, against those who were seen  as betraying the confidence reposed by the electors, showed their concern to  maintain probity in public life and to cleanse Parliament of elements who  may bring the great institution to disrepute. But, howsoever bonafide or  commendable the action is, when it is challenged as being unconstitutional,  this Court as the interpreter and Guardian of the Constitution has the delicate  task, nay the duty, to pronounce upon validity of the action. There is no  question of declining to or abstaining from inquiring into the issue merely  because the action is sought to be brought under the umbrella of  parliamentary privilege. The extent of parliamentary power and privilege,  and whether the action challenged is in exercise of such power and privilege,  are also matters which fall for determination of this Court. In this context, I  may usefully refer to the words of Bhagwati, J. (as His Lordship then was)  in State of Rajasthan v. Union of India [AIR 1977 SC 1361]:

"But merely because a question has a political complexion, that by  itself is no ground why the Court should shrink from performing  its duty under the Constitution if it raises an issue of constitutional  determination. \005\005, the Court cannot fold its hands in despair and  declare "Judicial hands off." So long as a question arises whether  an authority under the constitution has acted within the limits  of its power or exceeded it, it can certainly be decided by the  Court. Indeed it would be its constitutional obligation to do so.  \005 This Court is the ultimate interpreter of the Constitution and to  this Court is assigned the delicate task of determining what is the  power conferred on each branch of Government, whether it is  limited, and if so, what are the limits and whether any action of  that branch transgresses such limits. It is for this Court to uphold  the constitutional values and to enforce the constitutional  limitations. That is the essence of the rule of law."  

Where there is manifestly unauthorized exercise of power  under the Constitution, it is the duty of the Court to intervene.  Let it not be forgotten, that to this Court as much as to other  branches of Government, is committed the conservation and  furtherance of democratic values. The Court’s task is to identify  those values in the constitutional plan and to work them into life in

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the cases that reach the Court\005.. The Court cannot and should not  shirk this responsibility\005\005\005\005"  [emphasis supplied]

10.     The question before us is not whether the petitioners are guilty of  having taken money for asking questions, or raising issues in the Parliament.  The question is, irrespective of whether they are guilty or not, Parliament  has the power to expel them, thereby effecting permanent cessation of their  membership. On the contentions raised, the questions that therefore arise for  consideration are :   (i)     Whether Article 101 and 102 are exhaustive in regard to the  modes of cessation of membership of Parliament; and whether  expulsion by the House, not having been specified as a mode of  cessation of membership, is impermissible.   

(ii)    If the answer to the above question is in the negative, whether  the Parliament has the power to expel its members (resulting in  permanent cessation of membership) as a part of its powers,  privileges and immunities under Article 105(3).  

Relevant Principles :  

11.     I may first refer to the basic principles relevant for the purpose of  constitutional interpretation in the context of the first question.  

I.      Unlike British Parliament, Indian Parliament is not sovereign. It  is the Constitution which is supreme and sovereign and  Parliament will have to act within the limitations imposed by the  Constitution :

12.     There is a marked distinction between British Parliament and the  Indian Parliament. British Parliament is sovereign. One of the hallmarks of  such sovereignty is the right to make or unmake any law which no court or  body or person can set aside or override. On the other hand, the Indian  Parliament is a creature of the Constitution and its powers, privileges and  obligations are specified and limited by the Constitution. A legislature  created by a written Constitution must act within the ambit of its power as  defined by the Constitution and subject to the limitations prescribed by the  Constitution. Any act or action of the Parliament contrary to the  constitutional limitations will be void.

13.     In re Art. 143, Constitution of India and Delhi Laws Act [AIR 1951  SC 332], this Court observed thus :

"There is a basic difference between the Indian and the British  Parliament in this respect. There is no constitutional limitation to  restrain the British Parliament from assigning its powers where it  will, but the Indian Parliament qua legislative body is fettered  by a written constitution and it does not possess the sovereign  powers of the British Parliament. The limits of the powers of  delegation in India would therefore have to be ascertained as a  matter of construction from the provisions of the Constitution  itself." [emphasis supplied]

In Special Reference No.1 of 1964 \026 UP Assembly Case [1965 (1) SCR 413],  a Bench of seven Judges observed thus :

"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

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any law whatever; that no person or body is recognized by the law  of England is 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 dominion. On the other hand, the  essential characteristic of federalism is "the distribution of limited  executive, legislative and judicial authority among bodies which  are co-ordinate with and independent of each others". The  supremacy of the constitution is fundamental to the existence  of a federal State in order to prevent either the legislature of the  federal unit or 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."                 

"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. \005 In a democratic country governed by a written  Constitution, it is the Constitution which is supreme and sovereign.  \005. Therefore, there can be no doubt that the sovereignty which  can be claimed by the Parliament in England, cannot be claimed by  any Legislature in India in the literal absolute sense\005. We feel no  difficulty in holding that the decision about the construction of  Article 194(3) must ultimately rest exclusively with the Judicature  of this country. "

"Article 212(1) seems to make it possible for a citizen to call in  question in the appropriate court of law the validity of any  proceedings inside the legislative chamber if his case is that the  said proceedings suffer not from mere irregularity of procedure,  but from an illegality. If the impugned procedure is illegal and  unconstitutional, it would be open to be scrutinized in a court of  law, though such scrutiny is prohibited if the complaint against the  procedure is no more than this that the procedure was irregular."   

[emphasis supplied]

In Kesavananda Bharati vs. State of Kerala [1973(4) SCC 225], it was  observes that the Constitution being supreme, all the organs owe their  existence to it. Each organ has to function within the four corners of the  constitutional provisions. The doctrine of parliamentary sovereignty as it  obtains in England does not prevail in India except to the extent provided by  the Constitution. The judiciary is entrusted the task of construing the  provisions of the Constitution and safeguarding the fundamental rights.  

Subsequently, in State of Rajasthan (supra), this Court reiterated :

"It is necessary to assert in the clearest terms, particularly in the  context of recent history, that the Constitution is supreme lex,  the paramount law of the land, and there is no department or  branch of Government above or beyond it. Every organ of  Government, be it the executive or the legislature or the  judiciary, derives its authority from the Constitution and it has  to act within the limits of its authority."  

[emphasis supplied]

In Sub-Committee on Judicial Accountability vs. Union of India [1991 (4)  SCC 699], a Constitution Bench of this Court held :  

"But where, as in this country and unlike in England, there is a

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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."  

"In a federal set up, the judiciary becomes the guardian of the  Constitution\005\005 The interpretation of the Constitution as a legal  instrument and its obligation is the function of the Courts."   

II.     When a Statute, having made specific provisions for certain  matters, also incorporates by reference an earlier statute, to avoid  reproduction of the matters provided for in the earlier statute,  then what is deemed to be incorporated by such reference, are  only those provisions of the earlier statute which relate to matters  not expressly provided in the latter statute, and which are  compatible with the express provisions of the latter statute.  

14.     The legislative device of incorporation by reference is a well-known  device where the legislature, instead of repeating the provisions of a  particular statute in another statute, incorporates such provisions in the latter  statute by reference to the earlier statute. It is a legislative device adopted for  the sake of convenience in order to avoid verbatim reproduction of the  provisions of the earlier statute into the later. [See Mary Roy v. State of  Kerala \026 1986 (2) SCC 209].   Lord Esher M. R. stated the effect of  incorporation  in Clarke vs. Bradlaugh [1881 (8) QBD 63] thus :-  

"If a subsequent Act brings into itself by reference some of the clauses of  a former Act, the legal effect of that, as has often been held, is to write  those sections into the new Act as if they had been actually written in it  with the pen, or printed on it."  

15.     In U.P. Assembly case (supra), this Court while considering Article  194(3), identical in content to Article 105(3) of the Constitution, referred to  referred to its scope thus :  

"Mr. Seervai’s argument  is that the latter part of Art. 194(3)  expressly provides that all the powers which vested in the House of  Commons at the relevant time, vest in the House. This broad claim,  however, cannot be accepted in its entirety, because there are some  powers which cannot obviously be claimed by the House. Take the  privilege of freedom of access which is exercised by the House of  Commons as a body and through its Speaker "to have 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." It is hardly necessary to point  out that the House cannot claim this privilege. Similarly, the  privilege to pass acts of attainder and the privilege of impeachment  cannot be claimed by 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 qualification of its members in cases of  doubt. This privilege again, admittedly, cannot be claimed by the  House. Therefore, it would not be correct to say that all power and

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privileges which were possessed by the House of Commons at the  relevant time can be claimed by the House."

16.     In Chhabildas Mehta v. The Legislative Assembly, Gujarat State  [1970 Guj.LR 729], a Division Bench of Gujarat High Court speaking  through Chief Justice Bhagwati (as he then was) held :

"The problem before us is whether the privilege can be read in  Article 194(3). It is no answer to this problem to say ’read the  privilege in Article 194(3) and then harmonise it with the other  provisions’. If the privilege is inconsistent with the scheme of  the Constitution and its material provisions, it cannot and  should not be read in Article 194(3). The presumed intention of  the Constitution-makers in such a case would be that such a  privilege should not belong to the House of the Legislature."

[Emphasis supplied]

17.     In Hardwari Lal v. The Election Commission of India [1977 (2) Punj.  & Har. 269], the validity of expulsion of a member of legislature came up  for consideration. After an elaborate discussion, the majority found that the  power of British House of Commons, to expel any of its members, flowed  from its privilege to provide for and regulate its own constitution. It was  held that such power of expulsion was not available to the Indian Parliament,  having regard to the fact that the written constitution makes detailed  provision for the constitution of the Parliament, elections, vacation of seats  and disqualifications for membership. Sandhawalia, J. (as he then was)  speaking for the majority of the Full Bench observed thus :  

"It was submitted that in view of the language of Article 194(3)  each and every parliamentary privilege enjoyed by the House of  Commons without any exception whatsoever must be deemed as if  it were in fact written with pen and ink into the Constitution itself.  According to the respondents, one must at the outset unreservedly  read every power, privilege and immunity of the House of  Commons within clause (3) and consequently exercisable by the  State Legislatures in India as well. However, having done that, one  should thereafter proceed to scrutinize the remaining provisions of  the Constitution and if some power, privilege or immunity directly  conflicts with or contravenes some express or special provision  thereof then the same may be eroded on the ground that it is not  possible for the House to exercise the same. Nevertheless it was  dogmatically stated that even in the case of a direct or  irreconciliable conflict, the privilege must be read into the  Constitution and should not be deemed as necessarily deleted or  excluded therefrom. In short, the learned Advocate-General for a  while canvassed for the acceptance of what may be conveniently  called as ’pen and ink theory’ for the construction of Article 194(3)  of the Constitution.

(237)   On the other hand, the petitioner forthrightly argued that  some of the parliamentary privileges of the House of Commons by  their very nature are so inherently alien to our Republican  Constitution that they can never possibly be deemed to be part  thereof\005\005\005. It was submitted that the only reasonable and  consistent canon of construction in this situation was that all the  parliamentary privileges of the House of Commons which in their  very essence and by their intrinsic nature were patently  contradictory to the Indian Constitution, then these must  necessarily be excluded therefrom at the very threshold.

(238)   I believe, that the fallacy of the argument on behalf of the  respondent is highlighted, the moment one particularizes the same  and refers to some of the well-known and admitted privileges of

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the House of Commons. It was conceded before us that not one but  innumerable parliamentary powers and privileges of the House of  Commons were inextricably linked with the Sovereign, that is,  King or Queen of England, as the case may be. Can one imagine  that the word ’King’ or ’Queen’ mentioned therein should be  deemed to have been written in pen and ink in our Constitution  also when its very preamble solemnly declares that the people of  India have constituted themselves into a Sovereign, Socialist  Secular Democratic Republic ? In particular, one may consider the  accepted parliamentary privilege of the freedom of access to the  Sovereign including a right at all times to petition, counsel or  remonstrate with the King through their chosen representatives.  This is admitted on all hands to be a parliamentary privilege which  was considered fundamental by the House of Commons and  undoubtedly enjoyed by it. Can one for a moment conceive that the  Republican Constitution of India would incorporate this privilege  for its State Legislatures. How can even one imagine that the  founding fathers in the Constituent Assembly had intended to write  such a privilege also into our Constitution and to deem it as part  and parcel thereof? If so, to whom were the State Legislatures  supposed to petition and with whom were they to counsel or  remonstrate with through their chosen representatives in the  obvious absence of even the institution of the Monarchy herein ?               

(239)   Similarly not one but there are tens of parliamentary  privileges of the House of Commons which are closely linked with  the hereditary House of Lords in England. In particular the power  of the House of Lords to punish the contemners of the House by  passing judgment as a Court was undoubted. Can one read or even  imagine a House of Lords within our polity when the very  Constitution itself disapproves even a reference to any titles on the  basis of heredity and blood alone? Other examples of this nature  could perhaps be multiplied ad infinitum but it would perhaps  suffice to mention two other undoubted privileges of the House of  Commons. It is not in dispute that the said House had a relatively  unrestricted power of impeachment whereby it acted as the  prosecutor whilst the House of Lords was the final Court or  adjudicator for the same. Would it be possible to assume within  our Constitution any such general parliamentary privilege of  impeachment (apart from those which the Constitution in terms  confers) or by analogy to place the Rajya Sabha in the peculiar  historical position which the House of Lords as the final Court in  England? Again closely inter-related to this general power of  impeachment in the House of Commons was the privilege to pass  Acts or Attainder which in terms and effect meant an unrestricted  right to pass judgment during the course of impeachment. Can one  for a moment read such a power or privilege in favour of the State  Legislatures in India?

(240)   I am of the view that it is essentially tautologous to first  read something into the Constitution and in the next breath to  proceed to erase the same. This exercise becomes inevitable, if, as  suggested on behalf of the respondents, one is to first read the  King, the Queen, the House of Lords or the Acts of Attainder into  the Constitution and thereafter to proceed to nullify them on the  plain ground that by the very nature of things they cannot form part  of a Republican Constitution. The pen and ink theory, therefore, in  effect becomes indeed a pen, ink and India Rubber theory whereby  one first writes something entirely alien to the Constitution within  it and the next moment proceeds to rub it off. It is well-settled  that when a statute includes something in it by a reference to  another provision then only that can be deemed to be included  which is compatible with the parent provision. To my mind,  therefore, the plain method of construing Article 194(3) is the  usual and the settled one of not reading something into it which

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is glaringly anomalous, unworkable and irrational."

[emphasis supplied]

III.    Decisions of foreign courts, though useful to understand the  different constitutional philosophies and trends in law, as also  common law principles underlying Indian Statutes, are of limited  or no assistance in interpreting the special provisions of Indian  Constitution, dissimilar to the provisions of foreign constitutions.  

19.     Constitution of India differs  significantly  from  Constitutions of  other countries. It was made in the background of historical, social and  economic problems of this country. Our Constitution-makers forged  solutions and incorporated them. They made exhaustive provisions relating  to Executive, Legislature, and Judiciary with checks and balances. While  making specific and detailed provisions regarding Parliament, the  Constitution also earmarked the areas where further provisions could be  made by the Parliament by law. On the other hand, the Constitution of  England is unwritten and flexible. The distribution and regulation of exercise  of governmental power has not been reduced to writing. Further British  Parliament was, at one time, also the highest court of justice and because of  it, regarded as a superior court of record, with all its attendant trappings.  United States has a short and rigid Constitution, expounded considerably by  courts. Indian Constitution is exhaustive and sufficiently expounded by the  Constitution makers themselves. In fact, with 395 Articles and 12 Schedules,   it is the longest among world’s Constitutions.

20.     In Re. the C.P. and Berar Sales of Motor Spirit & Lubricants Taxation  Act, 1938 -- the Central Provinces case [AIR 1939 FC 1], the Federal Court   observed thus : "for in the last analysis the decision must depend upon the words  of the Constitution which the Court is interpreting and since no  two Constitutions are in identical terms, it is extremely unsafe to  assume that a decision on one of them can be applied without  qualification to another. This may be so even where the words or  expressions used are the same in both cases, for a word or phrase  may take a colour from its context and bear different senses  accordingly."  

In M.P.V. Sundaramier & Co. v. State of Andhra Pradesh (AIR 1958 SC  468), this Court cautioned : "the threads of our Constitution were no doubt taken from other  Federal Constitutions but when they were woven into the fabric of  our Constitution their reach and their complexion underwent  changes. Therefore, valuable as the American decisions are as  showing how the question is dealt with in sister Federal  Constitution great care should be taken in applying them in the  interpretation of our Constitution."

The note of caution was reiterated in Atiabari Tea Co. Ltd. v. State of Assam  (AIR 1961 SC 232) and Automobile Transport Ltd. v. State of Rajasthan  (AIR 1962 SC 1406), U.P.Assembly case (supra), and several other  subsequent decisions.  

Provisions of Indian Constitution :  

21.     Chapters I, II and IV of Part V relate to Executive, Parliament and  Union Judiciary. Detailed reference is necessary to the provisions of Chapter  II dealing with Parliament.  

21.1)   Article 79 relates to Constitution of Parliament and provides that there  shall be a Parliament for the Union which shall consist of the President and  two Houses to be known respectively as the Council of States and the House  of the People. Article 80 provides that the composition of Council of States

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shall be made up of twelve members nominated by the President and not  more than 238 representatives of the States and Union Territories. It also  provides that the representatives of each State in the Council of States shall  be elected by the elected members of the Legislative Assembly of the State.  Article 81 relates to composition of Lok Sabha and provides that Lok Sabha  shall consist of not more than 530 members chosen by direct election from  territorial constituencies in the States and not more than 20 members to  represent the Union Territories, chosen in such manner as Parliament may  by law provide. Article 83 prescribes the duration of Houses of Parliament.  Relevant portions thereof are extracted below :  

"83. Duration of Houses of Parliament.- (1) The Council of States shall  not be subject to dissolution, but as nearly as possible one-third of the  members thereof shall retire as soon as may be on the expiration of every  second year in accordance with the provisions made in that behalf by  Parliament by law.  

(2)  The House of the People, unless sooner dissolved, shall continue for  [five years] from the date appointed for its first meeting and no longer and  the expiration of the said period of [five years] shall operate as a  dissolution of the House. :

Article 85 provides for the sessions of Parliament, prorogation of the Houses  and dissolution of the House of the people.

21.2)   Article 84 enumerates the qualifications for membership of  Parliament. Article 102 deals with disqualifications for membership. Clause  (1) of Article 102 provides that a person shall be disqualified for being  chosen as, and for being,  a member of either House of Parliament :  

a)      if he holds any office of profit under the Government of India or  the Government of any State, other than an office declared by  Parliament by law not to disqualify its holder;  

b)      if he is of unsound mind and stands so declared by a competent  court;  

c)      if he is an undischarged insolvent;  

d)      if he is not a citizen of India, or has voluntarily acquired the  citizenship of a foreign State, or is under any acknowledgement of  allegiance or adherence to a foreign State;  

e)      if he is so disqualified by or under any law made by Parliament.  

Clause (2) of Article 102 provides that a person shall be disqualified for  being a member of either House of Parliament, if he is so disqualified under  the Tenth Schedule.      

21.3)   Article 101 deals with vacation of seats. Clause (1) thereof bars a  person being a member of both Houses of Parliament, and requires the  Parliament to make a provision by law for the vacation by a person who is  chosen as member of both Houses, of his seat in one House or the other.  Clause (2) bars a person from being a member both of Parliament and of a  House of the Legislature of a State. It provides that if a person is chosen as a  member both of Parliament and of a House of the Legislature of a State, then  at the expiry of such period as may be specified in the rules made by the  President,  that person’s seat in Parliament shall become vacant unless he  has previously resigned his seat in the Legislature of the State. Clause (3),  which is relevant, reads thus : (3) If a member of either House of Parliament \026  a)      becomes subject to any of the disqualifications mentioned in clause (1) or clause  (2) of Article 102; or

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b)      resigns his seat by writing under his hand addressed to the Chairman or Speaker,  as the case may be, and his resignation is accepted by the Chairman or the  Speaker, as the case may be,

his seat shall thereupon become vacant.        Clause (4) provides that if for a period of 60 days, a member of either House  of Parliament is without permission of the House absent from all meetings  thereof, the House may declare his seat vacant.  

21.4)   Article 103 relates to decision on questions as to disqualifications of  members. It is extracted below :  

"103. Decision on questions as to disqualifications of members :  

(1) If any question arises as to whether a member of either House of  Parliament has become subject to any of the disqualifications mentioned in  clause (1) of article 102, the question shall be referred for the decision of  the President and his decision shall be final.  

(2)  Before giving any decision on any such question, the President shall  obtain the opinion of the Election Commission and shall act according to  such opinion.  

Corresponding provisions in regard to the State Legislatures are found in  Articles 168, 170, 171, 172, 174, 173, 191, 190 and 192 of the Constitution.  

21.5)   It is to be noted expulsion is not mentioned as a mode of cessation of  membership of the Parliament under the Constitution. Nor does it give rise  to a vacancy.   

21.6)   Article 105 deals with powers, privileges, etc., of the Houses of  Parliament and of the members and committees thereof. Clauses (1) to (3)  which are relevant, extracted below :  

"105. Powers, privileges, etc., of the Houses of Parliament and of the  members and committees thereof.- (1) Subject to the provisions of this  Constitution and to the rules and standing orders regulating the procedure  of Parliament, there shall be freedom of speech in Parliament.  

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

(3)     In other respects, the powers, privileges and immunities of each  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.  

The corresponding provision in regard to State Legislatures and its members,  is Article 194. The words "shall be those of the House and of its members  and Committees immediately before coming into force of section 15 of  Constitution (Forty Forth Amendment) Act, 1978" in clause (3) of Articles  105 and 194 have replaced the earlier words "shall be those of the House of  Commons of Parliament of the United Kingdom, and of its members and  Committees, at the commencement of the Constitution". The position even  after amendment is the same as the position that existed at the  commencement of the Constitution.  

21.7)   The other provisions of Chapter II, relating to Parliament also require

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to be noticed. Article 106 relates to salaries and allowances of members.  Articles 86 to 88 relate to the rights of the President, Ministers and Attorney  General to address the Houses. Articles 89 to 98 relate to the officers of  Parliament. Article 99 provides for oath of office and Article 100 provides  for voting in Houses. Articles 107 to 111 relate to legislative procedure.  Article 107 contains the provisions as to introduction and passing of Bills.  Article 108 relates to joint sitting of both Houses in certain cases. Article  109 relates to special procedure in respect of Money Bills. Article 110  defines "Money Bills". Article 111 requires the presentation of Bills passed  by the Houses of Parliament to the President for his assent. Articles 112 to  117 relate to the procedure in financial matters. Article 112 relates to annual  financial statement. Article 113 relates to the procedure with respect to  estimates. Article 114 relates to appropriation bills. Article 115 relates to  supplementary, additional or excess grants. Article 116 relates to votes on  account, votes of credit and exceptional grants. Article 117 contains special  provisions as to financial bills. Articles 118 to 122 govern the rules of  procedure generally to be adopted by the Houses of Parliament. Article 118  enables each House of Parliament to make rules for regulating, subject to the  provisions of the Constitution, its procedure and the conduct of its business.

Article 119 relates to regulation by law of procedure in Parliament in  relation to financial business. Article 120 relates to the language to be used  in Parliament. Article 121 places a restriction on discussion in Parliament (in  regard to the conduct of any Judge of the Supreme Court or of a High Court  in the discharge of his duties except upon a motion for presenting an address  to the President praying for the removal of the Judge). Article 122 bars  courts from inquiring into proceedings of Parliament and it is extracted  below :

"122. Courts not to inquire into proceedings of Parliament.\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."

22.     We have referred in detail to the various provisions to demonstrate  that as far as the Indian Constitution is concerned, Chapter II of Part V is a  complete Code in regard to all matters relating to Parliament. It provided for  every conceivable aspect of Parliament. It contains detailed provisions in  regard to the constitution of Parliament, composition of Parliament, sessions,  prorogation and dissolution of Parliament, Officers of Parliament,  duration  of the Houses of Parliament, qualifications for membership, disqualifications  for being chosen as, and for being members, vacancies of seats, decision on  questions of disqualification, powers, privileges and immunities of the  Parliament, its Members and Committees, manner of conducting business,  the procedure to be adopted by the Parliament in regard to the enactment of  laws, persons who can address the Parliament, the language to be used, and  the Officers of the Parliament. The entire field in regard to the legislature is  covered fully in the following manner :  

Subject

(Parliament)  Articles (State  Legislature)  Articles Constitution & Composition of  Houses and election/nomination  of members

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79 to 82 168 to 171 Duration of Houses and Tenure  of Office of Members  83 172 Sessions, Prorogation and  dissolution  85 174 Qualification for Membership 84 173 Cessation of membership  (Disqualifications for being  chosen as, and for being a  member, and vacancies) and  decision on questions of  disqualification  102, 101 & 103 192, 190 & 192 Powers, privileges and immunities  of the Legislature, members and  Committees, and salaries &  allowances  105, 122 & 106 194, 212 & 195 Restriction on Powers 121 211 Offices of Legislature 89 to 98 178 to 187 Rules of Procedure and Language 118, 119 & 120 208, 209 & 210 Legislative Procedure and Conduct  of Business 107 to 111 112 to 117 99 & 100 196 to 201 202 to 207 188 & 189 Persons who can address the  Parliament 86 to 88. 175 to 177

23.     The Constitution also makes express provisions for cessation of tenure  of office or removal of every constitutional functionary referred to in the  Constitution. I will refer to them briefly :  

(i)     Article 61 refers to the procedure for impeachment of President.  Clause (4) of Article 61 provides that if the resolution is passed by  a majority of not less than two-third of the Members of the House  declaring the charge against the President has been sustained, such  resolution shall have the effect of removing the President from the  office.  

(ii)    Clause (b) of Article 67 deals with the term of office of Vice  President and provides for removal of Vice President from office  by a resolution of Council of States passed by majority of all the  then members of the Council and agreed to by the House of

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People.  

(iii)   Article 75(2), Article 76(4) and Article 156(1) refer to the  Ministers, Attorney General and Governor holding office during  the pleasure of the President.  

(iv)    Article 124 provides that no Judge of Supreme Court shall be  removed from his office except by an order of President passed  after impeachment. Articles 148 and 324 provide that the  Comptroller & Auditor General of India and the Chief Election  Commissioner shall not be removed from their office except in like  manner and on like grounds of a Judge of the Supreme Court.

(v)     Article 315 read with Article 317 provides how a Chairman or a  Member of a Public Service Commission can be removed from  office.  

Similarly provisions are made in regard to cessation/termination of tenure of  office or removal of all constitutional functionaries with reference to the  States. Article 156(1) relates to Governor, Article 164(1) relates to  Ministers, Article 165(3) relates to Advocate General, Article 179 relates to  Speaker and Deputy Speaker, Article 183 relates to Chairman and Deputy  Chairman of Legislative Council, Articles 190 to 192 relate to Members of  Legislatures and Article 217 relates to High Court Judges.  

Whether Articles 101 and 102 are exhaustive of the circumstances in  which there will be cessation of membership ?  

24.     The word ’disqualified’ means to ’make ineligible’ or debarred. It also  means divested or deprived of rights, powers or privileges. The term ’expel’  means to deprive a person of the membership or participation in any ’body’  or ’organization’ or to forcibly eject or force a person to leave a building  premises etc. The enumeration of disqualifications is exhaustive and  specifies all grounds for debarring a person from being continuing as a  member. The British Parliament devised expulsion as a part of its power to  control its constitution, (and may be as a part of its right of self-protection  and self-preservation) to get rid of those who were unfit to continue as  members, in the absence of a written Constitutional or statutory provision  for disqualification. Historically, therefore, in England, ’expulsion’ has been  used in cases where there ought to be a standing statutory disqualification  from being a Member. Where provision is made in the Constitution for  disqualifications and vacancy, there is no question of exercising any inherent  or implied or unwritten power of  ’expulsion’.

25.     A person cannot be disqualified unless he suffers a disqualification  enumerated in Article 102. Article 102 refers to 6 types of disqualifications : i)      If he holds any office of profit, vide Article 102(1)(a); ii)     If he is of unsound mind and stands so declared, vide Article  102(1)(b);

iii)    If he is an undischarged solvent, vide Article 102(1)(c); iv)     If he is not a citizen of India, vide Article 191(1)(d); v)      If he is disqualified by or under any law made by Parliament. vi)     If he is disqualified under the Tenth Schedule, vide Article 102(2).          Disqualifications have also been prescribed by the Parliament in the  Representation of People Act, 1951 as contemplated under Article 102(1)(e).  The grounds of disqualifications under the said Act are  :

(i) if he is convicted and sentenced for any offence as  provided/enumerated in Section 8 of the Act;

(ii) if he is found guilty of corrupt practices by an order  under Section 99 of the Act vide Section 8-A of the Act;

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(iii) if he is dismissed for corruption or for disloyalty to  the State, vide Section 9 of the Act;

(iv) if he has a subsisting contract with the appropriate  Government for the supply of goods to or for the  execution of any works, vide Section 9-A of the Act;

(v) if he is a managing agent, manager or secretary of any  company or corporation, in which the appropriate  Government has a share, vide Section 10 of the Act;

(vi) If he is a person who has been declared as  disqualified by the Election Commission, vide Section  10-A of the Act."          

The Constitution thus expressly enumerates certain grounds of  disqualification (sub-clauses (a) to (d) of clauses (1) and (2) of Article 102).  It has also permitted the Parliament to add disqualifications, by making a  law.    Passing a resolution by one House, is not of course, making a law.  

26.     In the case of Members of Parliament, the Constitution has  consciously used the word disqualification, both for ’being chosen as a  member’ and for ’being a member’. That means that when  a member  becomes disqualified as mentioned in Article 102, he becomes disentitled to  continue as a Member of the House.     27      Article 101 specifically provides the circumstances in which a seat of  Member of Parliament becomes vacant \026  (a)     when a person is member of both Houses of Parliament;  (b)     when a person is elected both as a Member of Parliament and also as a  Member of the State Legislature, and does not resign his seat in the  legislature of a State within the time specified;  

(c)     when a person becomes subject to any of the disqualifications  mentioned in clause (1) or clause (2) of Article 102;  

(d)     when he resigns his seat and his resignation is accepted.  (e)     when a member is absent from all meetings for a period of 60 days  without permission of the House and the House declares his seat as  vacant.  

28.     An analysis of Article 101 shows that the Constitution  makers  provided specifically for three types of vacancies : (i)     Occurrence of vacancies, for reasons specifically stated in the  Constitution itself (vide clauses (2) and (3) of Article 101).

(ii)    Occurrence of vacancies, to be provided by a law made by the  Parliament (vide clause (1) of Article 101).

(iii)   Occurrence of vacancy, on a declaration by the House (vide  clause (4) of Article 101).   

If the Constitution makers wanted a vacancy to occur on account of  ’expulsion’ on a decision or declaration by the House, they would have  certainly provided for it, as they have provided for vacancy on the ground of  unauthorized absence, arising on a declaration by the House under clause (4)  of Article 101. The Constitution makers did not contemplate or provide for  any cause, other than those mentioned in Article 101, for giving rise to a  vacancy. Thus a seat held by a Member of Parliament does not become  vacant, in any  manner, other than those stated in Article 101.

29.     One argument advanced to contend that Article 101 cannot be  considered as exhaustive as to the circumstances in which vacancy occurs in  respect of a seat in the Parliamentary, was that it does not provide for

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vacation of seat by death of a Member. Article 101 refers to vacation of seat  by a ’person’ who is a member of the House, that is, a person who is alive.  When a person is dead, obviously he is not a Member of the House. It would  be absurd to contend that a person even after death will continue to hold the  seat. The obvious effect of death did not require to be stated and therefore  the non-mention of death as a ground for vacancy does not make Article 101  any less exhaustive.  

30.     Articles 102 and 101 together include all circumstances in which a  membership comes to an end and the seat becomes vacant. The Constitution  does not contemplate or provide for the  membership of an MP coming to an  end in any manner other than what is specifically provided in Articles 101  and 102. Therefore there cannot be cessation of membership, de hors  Articles 101 and 102, by ’expulsion’ or otherwise.  

Conclusions :  

31.     The Constitution-makers have made detailed and specific provisions  regarding the manner in which a person becomes a Member of Parliament  (elected/nominated), the duration for which he continues as a member and  the manner in which he ceases to be a member and his seat becomes vacant.  Therefore neither the question of election or nomination, nor tenure, nor  cessation/termination of membership of the House covered by the express  provisions in the Constitution, can fall under ’other powers, privileges and  immunities’ of the House mentioned in Article 105(3).  

32.     We have also noticed above that the Constitution makes express  provisions for election/appointment and removal/cessation of service of the   Executive (President and Vice-President), Judiciary (Judges of the Supreme  Court and High Court) and all other constitutional functionaries (Attorney  General, Auditor and Comptroller General, Chief Election Commissioner  etc.). It is therefore inconceivable that the Constitution-makers would have  omitted to provide for ’expulsion’ as one of the methods of cessation of  membership or consequential vacancy, if it intended to entrust such power to  the Parliament.    

33.     In view of the express provisions in the Constitution, as to when a  person gets disqualified to be a member of either House of Parliament (and  thereby ceases to be a member) and when a consequential vacancy arises, it  is impermissible to read a new category of cessation of membership by way  of expulsion and consequential vacancy, by resorting to the incidental  powers, privileges and immunities referred to in Article 105.  

34.     Clause (3) of Article 105 opens with the words ’in other respects’.  The provision for ’powers, privileges and immunities’ in clause (3) occurs  after referring to the main privilege of freedom of speech in Parliament, in  clause (1) of Article 105, and the main immunity against court proceedings  in clause (2) of Article 105. Therefore, clause (3) is intended to provide for  ’non-main’ or ’incidental’ or miscellaneous powers, privileges and  immunities which are numerous to mention. Two things are clear from  clause (3). It is not intended to provide for the matters relating to  nomination/election, term of office, qualifications, disqualification/cessation,  for which express provisions are already made in Articles 80, 81, 83, 84, 101  and 102. Nor is it intended to provide for important privilege of freedom of  speech or important immunity from court proceedings referred to in Clause  (1) and (2) of Article 105. This Court in U.P. Assembly referred to this  aspect :  

"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]

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By no stretch of imagination, the power to expel a member can be  considered as an ’incidental’ matter. If such a power was to be given, it  would have been specifically mentioned.  

35.     The appropriate course in case of allegation of corruption against a  Member of Parliament, is to prosecute the member in accordance with law  (The immunity under Article 105(2) may not be available, as the decision in  P.V.Narasimha Rao v. State [1998 (4) SCC 626] recognizes immunity to a  member who is a bribe taker only where the ’bribe’ is taken in respect of a  ’vote’ given by him in Parliament and not otherwise). Such cases can be fast  tracked. Pending such criminal proceedings, the member can be suspended  temporarily, if necessary, so as to prevent him from participating in the  deliberations of the Houses. On being tried, if the member is convicted, he  becomes disqualified for being or continuing as a Member under Article  102(1)(e). If he is acquitted, he is entitled to continue as a member. Though  it may sound cumbersome, that apparently is what the Constitution intends.  

36.     I am, therefore, of the considered view that there is no power of  expulsion in the Parliament, either inherent or traceable to Article 105(3).  Expulsion by the House will be possible only if Article 102 or Article 101 is  suitably amended or if a law is made under Article 102(1)(e) enabling the  House to expel a member found unworthy or unfit of continuing as a  member. The first question is thus answered in the affirmative. Therefore the  second question does not survive for consideration.  

37.     In view of the above, I hold that the action of the two Houses of  Parliament, expelling the petitioners is violative of Articles 101 to 103 of the  Constitution and therefore invalid. Petitioners, therefore, continue to be  Members of Parliament (subject to any action for cessation of their  membership).  Petitions and transferred cases  disposed of accordingly.