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

PETITIONER: RAJA RAM PAL

RESPONDENT: SPEAKER, LOK SABHA & ORS.

DATE OF JUDGMENT: 10/01/2007

BENCH: C.K. THAKKER

JUDGMENT: JUDGMENT

WITH TRANSFERRED CASES NOs. 82, 83, 84, 85, 86, 87,  88, 89, 90 OF 2006 AND Writ Petition (C) No. 129 OF  2005

C.K. THAKKER, J.

                I have had the benefit of reading the erudite  judgment prepared by my Lord the Chief Justice. I am in  agreement with the final order dismissing the petitions.  Keeping in view, however, the issue in these matters  which is indeed of great public importance having far- reaching consequences to one of the largest democracies  of the world, I intend the consider it in detail.         In these 11 petitions (9 by members of Lok Sabha  and 2 by members of Rajya Sabha), the petitioners have  challenged the proceedings initiated against them by  Parliament, the reports submitted by the Committees  constituted by Parliament holding them guilty of the  charges levelled against them and notifications expelling  them as members of Parliament.         The ’unfortunate background’ of the case has been  dealt with by the learned Chief Justice and I do not  intend to repeat it. Suffice it to say that it was alleged  against the petitioners that they accepted money for  tabling questions/raising issues in Parliament.  Committees were appointed to inquire into the  allegations and conduct of Hon’ble Members. The  allegations were found to be correct and pursuant to the  reports submitted by the Committees, the Members were  expelled by Parliament. Those Members have challenged  the impugned action of expulsion. The Court had been ably assisted by the learned  counsel for the parties on the central question of  Parliamentary privileges, the power of the House to deal  with those privileges and the ambit and scope of judicial  review in such matters.         At the outset, I wish to make it clear that I am  considering the controversy whether Parliament has  power to expel a member and whether such power and  privilege is covered by clause (3) of Article 105 of the  Constitution.  I may clarify that I may not be understood  to have expressed final opinion one way or the other on  several questions raised by the parties and dealt with in  this judgment except to the extent they relate or have

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relevance to the central issue of expulsion of membership  of Parliament. PARLIAMENTARY PRIVILEGES : MEANING         An important as also a complicated question is :  What do we understand by ’parliamentary privileges’?         "Nothing", said Dicey, "is harder to define than the  extent of the indefinite powers or rights possessed by  either House of Parliament under the head of privilege or  law and custom of Parliament".         Though all the three expressions, powers, privileges  and immunities are invariably used in almost all  Constitutions of the world, they are different in their  meanings and also in contents.         ’Power’ means ’the ability to do something or to act  in a particular way’. It is a right conferred upon a person  by the law to alter, by his own will directed to that end;  the rights, duties, liabilities or other legal relations either  of himself or of other persons. It is a comprehensive word  which includes procedural and substantive rights which  can be exercised by a person or an authority.         ’Privilege’ is a special right, advantage or benefit  conferred on a particular person. It is a peculiar  advantage or favour granted to one person as against  another to do certain acts. Inherent in the term is the  idea of something, apart and distinct from a common  right which is enjoyed by all persons and connotes some  sort of special grant by the sovereign.         ’Immunity’ is an exemption or freedom from general  obligation, duty, burden or penalty. Exemption from  appearance before a court of law or other authority,  freedom from prosecution, protection from punishment,  etc. are immunities granted to certain persons or office  bearers.         Sir Erskin May, in his well-known work ’Treatise on  The Law, Privileges, Proceedings and Usage of  Parliament’, (23rd Edn.); p. 75 states;         "Parliamentary privilege is the sum of the  peculiar rights enjoyed by each House  collectively as a constituent part of the High  Court of Parliament, and by Members of each  House individually, without which they could  not discharge their functions, and which  exceed those possessed by other bodies or  individuals.  Thus privilege, though part of the  law of the land, is to a certain extent an  exemption from the general law.  Certain rights  and immunities such as freedom from arrest  or freedom of speech belong primarily to  individual Members of each House and exist  because the House cannot perform its  functions without unimpeded use of the  services of its Members.  Other such rights  and immunities such as the power to punish  for contempt and the power to regulate its own  constitution belong primarily to each House as  a collective body, for the protection of its  Members and the vindication of its own  authority and dignity.  Fundamentally,  however, it is only as a means to the effective  discharge of the collective functions of the  House that the individual privileges are  enjoyed by Members".                  In Halsbury’s Laws of England, (4th Edn.; Reissue,  Vol. 34; p. 553; para 1002); it has been stated;

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"Claim to rights and privileges.  The House of  Lords and the House of Commons claim for  their members, both individually and  collectively, certain rights and privileges which  are necessary to each House, without which  they could not discharge their functions, and  which exceed those possessed by other bodies  and individuals.  In 1705 the House of Lords  resolved that neither House had power to  create any new privilege and when this was  communicated to the Commons, that House  agreed.  Each House is the guardian of its own  privileges and claims to be the sole judge of  any matter that may arise which in any way  impinges upon them, and, if it deems it  advisable, to punish any person whom it  considers to be guilty of a breach of privilege or  a contempt of the House".

       In the leading case of Powers, Privileges and  Immunities of State Legislatures, Article 143, Constitution  of India, Re, (1965) 1 SCR 413 : AIR 1965 SC 745,  Sarkar, J. (as His Lordship then was) stated; "I would like  at this stage to say a few general words  about "powers,  privileges and immunities" of the House of  Commons or   its     members. First I wish to note that it is not  necessary for   our purposes to make a distinction  between "privileges", "powers" and "immunities". They are  no doubt different in the matter of their respective  contents but perhaps in no otherwise.  Thus the right of  the House to have absolute control of its internal  proceedings may be considered as its privilege, its right  to punish        one for  contempt may be more properly  described as     its  power, while the right that no  member shall be liable for  anything said  in  the House  may be really an  immunity".         In ’Parliamentary Privilege \026 First Report’ (Lord  Nicholas Report), it was observed;          Parliamentary privilege consists of the  rights and immunities which the two Houses  of Parliament and their members and officers  possess to enable them to carry out their  parliamentary functions effectively.  Without  this protection members would be  handicapped in performing their parliamentary  duties, and the authority of Parliament itself in  confronting the executive and as a forum for  expressing the anxieties of citizens would be  correspondingly diminished.

       RAISON D’ETRE FOR PRIVILEGES         The raison d’etre for these privileges is again  succinctly explained by Sir Erskine May thus;  "The distinctive mark of a privilege is its  ancilliary character.  The privileges of  Parliament are rights which are ’absolutely  necessary for the due execution of its powers’.   They are enjoyed by individual Members,  because the House cannot perform its  functions without unimpeded used of the  services of its Members; and by each House for  the protection of its Members and the  vindication of its own authority and dignity.

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Elected representatives, however, are not placed  above the law by way of parliamentary privileges; they are  simply granted certain advantages and basic exemptions  from legal process in order that the House may function  independently, efficiently and fearlessly.  This is in the  interest of the nation as a whole.   PARLIAMENT : WHETHER POSSESSES POWER TO  EXPEL MEMBERS

       The basic and fundamental question raised by the  petitioners in all these petitions is the power of  Parliament to expel a member.  Other incidental and  ancillary questions centre round the main question as to  authority of a House of Legislature of expulsion from  membership. If the sole object or paramount  consideration of granting powers, privileges and  immunities to the members of Legislature is to enable  them to ensure that they perform their functions,  exercise their rights and discharge their duties effectively,  efficiently and without interference of outside agency or  authority, it is difficult to digest that in case of abuse or  misuse of such privilege by any member, no action can  be taken by the Legislature, the parent body.         I intend to examine the question on principle as well  as on practice.  It would be appropriate if I analyse the  legal aspects in the light of constitutional provisions of  India and of other countries, factual considerations and  relevant case law on the point. AMERICAN LAW         So far as the United States of America is concerned,  the Constitution itself recognizes such right.  Section 5 of  Article 1 of the Constitution of the United States confers  such right on each House of the Legislature.  Sub-section  (2) reads thus;         "(2) Each House may determine the rules  of its proceedings, punish its members for  disorderly behavior, and, with the  concurrence of two-thirds, expel a  member."        (emphasis supplied)

       Leading Authors on the Constitution have also  stated that each House possesses the power to expel a  member in appropriate cases.         Cooley in his well-known work ’Treatise on the  Constitutional Limitations’, (1972 Edn., p. 133); states;         Each House has also the power to punish  members for disorderly behaviour, and other  contempts of its authority, and also to expel a  member for any cause which seems to the body  to render it unfit that he continue to occupy one  of its seats.  This power is sometimes conferred  by the constitution, but it exists whether  expressly conferred or not.  It is a necessary  and incidental power, to enable the house to  perform its high functions and is necessary to  the safety of the State.   It is a power of  protection.  A member may be physically,  mentally, or morally wholly unfit; he may be  affected with a contagious disease, or insane,  or noisy, violent and disorderly, or in the habit  of using profane, obscene, and abusive  language.  And independently of parliamentary  customs and usages, our legislative houses  have the power to protect themselves by the  punishment and expulsion of a member and

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the Courts cannot inquire into the justice of  the decision, or look into the proceedings to  see whether opportunity for defence was  furnished or not."                           (emphasis supplied)

       Another well-known authority on the point is  Willoughby, who in his work "Constitutional Law of the  United States", (Second Edn.; p. 256); says;         "This right of expulsion is to be sharply  distinguished from the right to refuse to admit  to membership.  In the latter case, as has been  seen, the questions involved are, in the main,  the perhaps exclusively, those which relate to  the Constitutional qualifications of those  persons presenting themselves for admission  or to the regularity and legality of the elections  at which such persons have been selected or  appointed.  In the former case, that is, of  expulsion, these matters may be considered,  but, in addition, action may be predicated  upon the personal character or acts of the  parties concerned; and, as to his last matter,  as will presently be seen, the chief point of  controversy has been whether the acts of  which complaint is made should be only those  which have occurred subsequent to election  and have a bearing upon the dignity of  Congress and the due performance of its  functions. \005            \005            \005            \005            \005

       In determining whether or not a member of  congress has been guilty of such acts as to  warrant his expulsion the House concerned  does not sit as a criminal trial court, and is not,  therefore, bound by the rules of evidence, and  the requirements as the certitude of guilt which  prevail in a criminal character, but only as to  unfitness for participation in the deliberations  and decisions of congress."                                                 (emphasis supplied)              Dealing with the question of expulsion by the House  and the power of Courts, Pritchett in his book ’American  Constitution’ (Third Edn., p. 146); observed; "Expulsion and Censure : Congressmen are not  subject to impeachment, not being regarded as  ’civil officers’ of the United States.  The  constitution does not provide, however, that  each House may expel its members by a two  third vote, or punish them for ’disorderly  behaviour’.  Congress is the sole judge of the  reasons for expulsion.  The offence need not be  indicatable.  In 1797 the Senate expelled  William Blount for conduct which was not  performed in his official capacity not during a  session of the Senate nor at the seat of  government.  The Supreme Court has recorded  in a dictum in understanding that the  expulsion power ’extends to all cases where the  offence is such as in the judgment of the Senate  is inconsistent with the trust and duty of a  member".                                      (emphasis supplied)

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       In ’American Jurisprudence’, (Second Edn., Vol. 77,  p. 21); it has been stated;         "The power of either House of Congress to  punish or expel its members for cause is  recognized in the Constitution which provides  that each House may punish its members for  disorderly behaviour, and, with the  concurrence of two-thirds, expel a member.   Punishment for misbehaviour may in a proper  case be by imprisonment and may be imposed  for failure to observe a rule for preservation of  order.  In the case of the Senate, the right to  expel extends to all cases where the offence is  such as in the judgment of the body is  inconsistent with the trust and duty of a  member (Chapman Re, (1896) 166 US 661 : 41  L Ed 1154)".

       Attention of the Court was also invited to certain  decisions of the Supreme Court of the United States. In  Chapman, Re, 166 US 661 (1891) : 41 L Ed 2nd 1154, the  Supreme Court before more than a century, recognized  the power of the Senate to expel a member where an act  of the Member was such as in the judgment of the Senate  was inconsistent with the ’trust and duty’ of a member.  Reference was made to William Blount, who was expelled  from the Senate in July, 1797, for ’a high misdemeanor  entirely inconsistent with his public trust and duty as a  senator.’  It was also stated that in July, 1861, during  civil war, fourteen Senators and three Representatives  were expelled.  In Julion Bond v. James Sloppy Floyd, 385 US 116  (1966) : 17 L Ed 2nd 235, William Bond, a Negro, duly  elected representative was excluded from membership  because he attacked policy of Federal Government in  Vietnam. The US Supreme Court held that Bond had  right to express free opinion under the first amendment  and his exclusion was bad in law.  In Powell v. McCormack, 395 US 486 (1969) : 23 L  Ed 2nd 491, the applicant was held entitled to declaratory  judgment that action of exclusion of a member of a  House was unlawful. The allegation against the applicant  was that he deceived the House Authorities in connection  with travel expenses and made certain illegal payments  to his wife. Referring to Wilkes and the Law in England,  the Court observed that "unquestionably, Congress has  an interest in preserving its institutional integrity, but in  most cases that interest can be sufficiently safeguarded  by the exercise of its power to punish its members for  disorderly behaviour and in extreme cases, to expel a  member with the concurrence of two-thirds."  In H. Snowden Marshall v. Robert B. Gordon, 243 US  521 (1917), a Member of the House of Representatives  levelled serious charges against District Attorney of the  Southern District of New York with many acts of  misfeasance and nonfeasance. The Select Committee  submitted a report holding him guilty of contempt of the  House of Representatives of the United States because he  violated its privileges, its honor and its dignity.         Dealing with the case and referring to Kielley v.  Carson, (1842) 4 MOO PC 63 : 13 ER 225, the Court  observed that when an act is of such a character as to  subject it to be dealt with as a contempt under the  implied authority, Congress has jurisdiction to act on the  subject.  Necessarily results from that the power to

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determine in the use of legitimate and fair discretion how  far from the nature and character of the act there is  necessity for repression to prevent immediate recurrence,  that is to say, the continued existence of the interference  or obstruction to the exercise of the legislative power.  Unless there is manifest and absolute disregard of  discretion and a mere exertion of arbitrary power coming  within the reach of constitutional limitations, the exercise  of the authority is not subject to judicial interference.         I may also refer to a leading decision in United  States v. Daniel Brewster, 408 US 501 : (1972) 33 L Ed  2nd 507. Keeping in view ground reality that privileges  conferred on Members of Parliament are likely to be  abused, Burger, CJ stated;         "The authors of our Constitution were  well aware of the history of both the need for  the privilege and the abuses that could flow  from too sweeping safeguards. In order to  preserve other values, they wrote the privilege  so that it tolerates and protects behaviour on  the part of the Members not tolerated and  protected when done by other citizens, but the  shield does not extend beyond what is  necessary to preserve the integrity of the  legislative process".            (emphasis supplied)

       From the above cases, it is clear that in the United  States, the House possesses the power of observance of  discipline by its members and in appropriate cases, such  power extends to expulsion.  It is also clear that such  power has been actually exercised for disorderly behavior  in the House as also outside the House, where the House  was satisfied that the member was ’unfit’ physically,  mentally or morally even if such conduct could not be a  ’statutable offence’ or was not committed by him in his  official capacity or during House in Session or at the seat  of Government.

AUSTRALIAN LAW

       The provisions relating Parliamentary privileges  under the Constitution of Australia were similar to our  Constitution.  Section 49 declared powers, privileges and  immunities of the Senate and of the House of  Representatives and its Members.  It was as follows; "The powers, privileges, and immunities of the  Senate and of the House of Representatives,  and of the Members and the Committees of  each House, shall be such as are declared by  the Parliament, and until declared shall be  those of the Commons House of Parliament of  the United Kingdom, and of its members and  committees, at the establishment of the  Commonwealth."                (emphasis supplied)

Enid Campbell in his book ’Parliamentary Privilege  in Australia’, dealing with ’Expulsion’, states; "At common law, the House of Commons  is recognized to have power to expel a member  for misconduct unfitting him for membership  even where that misconduct is not such as to  disqualify him from parliamentary office. There  is no doubt that those Australian Houses of  Parliament invested by statute with the powers

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and privileges of the House of Commons enjoy  the same power, but the position with regard  to other Houses is not so clear. At common  law, Colonial Legislatures do not possess  punitive powers, though there is dictum in  Barton v. Taylor to the effect that they do have  power to expel for aggravated or persistent  misconduct on the ground that this may be  necessary for the self protection of the  legislature. Where a member is expelled, his  seat thereupon becomes vacant. He is not,  however, disqualified from being again elected  and returned to parliament".

Discussing powers of Colonial Assemblies, the  learned author states that though such Assemblies do  not possess ’punitive’ powers, it is inconceivable that  they cannot make rules for the orderly conduct of  business. Even if they have no authority to expel a  member in absence of specific provision to that effect,  they may suspend disorderly members in appropriate  cases. "The dignity of a Colonial Parliament acting  within its limits, requires no less than that of the  Imperial Parliament that any tribunal to whose  examination its proceedings are sought to be  submitted for review should hesitate before it  undertakes the function of examining its  administration of the law relating to its internal  affairs".                                    (emphasis supplied)

It may also be stated that Odger in his ’Australian  Senate Practice’, (11th Edn.; p.57) observes;

"The recommendation, and the  consequent provision in section 8 of the 1987  Act, was opposed in the Senate. It was argued  that there may well be circumstances in which  it is legitimate for a House to expel a member  even if the member is not disqualified. It is not  difficult to think of possible examples. A  member newly elected may, perhaps after a  quarrel with the member’s party, embark upon  highly disruptive behaviour in the House, such  that the House is forced to suspend the  member for long periods, perhaps for the bulk  of the member’s term. This would mean that a  place in the House would be effectively vacate,  but the House would be powerless to fill it.  Other circumstances may readily be  postulated. The House, however, denied  themselves the protection of expulsion".

Lumb and Ryan (’’The Constitution of the  Commonwealth of Australia’; 1974 Edn.) stated that each  House of the Federal Parliament has the right to suspend  a member for disorderly conduct. The power is exercised  to punish persistent interjectors or for refusal to  withdraw an offensive remark. "In extreme cases a  member may be expelled".                  (emphasis supplied)

In 1920, Hugh Mahon, Federal Member of Kalgoorlie  was expelled from the House of Representatives for  making a ’blistering’ public speech against British Rule in

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Ireland. It is no doubt true that pursuant to the report of the  Joint Select Committee on Parliamentary Privilege (1984),  a specific Act has been enacted, known as the  Parliamentary Privileges Act, 1987 (Act 21 of 1987).  Section 8 of the said Act expressly bars a House to expel  any of its members. It reads: "A House does not have power to expel a  member from membership of a House".

       It is, therefore, clear that only recently, the power to  expel a member from the House has been taken away by  a specific statute.

CANADIAN LAW

The legal position under the Constitution of Canada  is different to some extent.  Section 18 of the  Constitution of the Dominion of Canada, 1867 states; "The privileges, immunities, and powers  to be held, enjoyed, and exercised by the  Senate and by the House of Commons, and by  the members thereof respectively, shall be  such as are from time to time defined by Act of  the Parliament of Canada, but so that any Act  of the Parliament of Canada defining such  privileges, immunities, and powers shall not  confer any privileges, immunities, or powers  exceeding those at the passing of such Act held,  enjoyed, and exercised by the Commons House  of Parliament of the United Kingdom of Great  Britain and Ireland, and by the members  thereof."                                         (emphasis supplied)

It is thus clear that unlike India, in Canada, the  Legislature could not enlarge its privileges by enacting a  law investing in it the privileges enjoyed by British  Parliament.  There is no such limitation under Section 49  of the Australian Constitution nor under Article 105(3) or  Article 194(3) of the Indian Constitution. In spite of the above provision in the Constitution,  the right of the House to expel a member has never been  challenged. Sir John George Bourinot, in his work  ’Parliamentary Procedure and Practice in the Dominion of  Canada’, (4th Edn., p.64), states;         "The right of a legislative body to suspend  or expel a member for what is sufficient cause  in its own judgment is undoubted. Such a  power is absolutely necessary to the  conservation of the dignity and usefulness of a  body. Yet expulsion, though it vacates the seat  of a member, does not create any disability to  serve again in Parliament".

The learned counsel for the parties also drew our  attention to certain cases from Canada. We may notice  only few recent decisions.  In Speaker of the House of Assembly v. Canadian  Broadcasting Corporation, (1993) 1 SCR 319, the  Broadcasting Corporation made an application to the  Nova Scotia Supreme Court, Trial Division for an order  allowing it "to film the proceedings of the House of  Assembly with its own cameras". The application was  based on the Canadian Charter of Rights and Freedoms

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which guaranteed freedom of expression and freedom of  press. The Corporation claimed that it was possible to  film the proceedings from the public gallery with modern  equipments. The Speaker, however, declined permission  on the ground that Corporation’s proposal would  interfere with "the decorum and orderly proceedings of  the House". The Trial Judge granted the claim which was  upheld in appeal. The Speaker approached the Supreme  Court. One of the questions raised before the Supreme  Court was as to whether the House could exercise  privilege by refusing access to the media. Lamer, CJ  discussed the doctrine of privilege in detail in the light of  the doctrine of necessity. Referring to Stockdale v.  Hansard, (1839) 9 Ad & E 1 : 112 ER 1112 (QB), he  stated that parliamentary privilege and immunity are  founded upon necessity. ’Parliamentary privileges’ and  the breadth of individual privileges encompassed by that  term were accorded to members of the Houses of  Parliament and the Legislative Assemblies because they  were considered necessary for the discharge of their  legislative functions. Mc Lachlin, J. (as she then was) agreed with the  learned Chief Justice and observed that Canadian  legislative Assemblies could claim as inherent privileges  those rights which were necessary to their ’capacity to  function as legislative bodies’. Necessity was thus the  test. Referring to Kielley v. Carson (1842), 4 MOO PC 63 :  13 ER 225, it was observed that though the Privy Council  held that a Colonial Assembly had no power to commit  for a contempt like House of Commons of the United  Kingdom, it did not dispute that such powers "as are  necessary to the existence of such body and the proper  exercise of the functions which it is intended to execute"  were bestowed with the very establishment of the  Newfoundland Assembly. The Court also considered the ambit and scope of  judicial review and exercise of parliamentary privilege.  Referring to Sir Erskine May that "after some three and a  half centuries, the boundary between the competence of  the law courts and the jurisdiction of either House in  matters of privilege is still not entirely determined", the  Court observed that originally the Houses of Parliament  took the position that they were the exclusive judges of  their privileges. They claimed to be ’absolute arbiters’ in  respect of parliamentary privileges and took the stand  that their decisions were not reviewable by any other  Court or Authority. The Courts, on the other hand,  treated lex parliamentis to be part of the ’law of the land’          and as such, within their judicial control. Judiciary  exercised the power particularly when issues involved the  rights of third party. According to Courts, their role was  to interpret the law of Parliament and to apply it.         Holding the test of ’necessity’ for privilege as  ’jurisdictional test’, the learned Judge stated; "The test of  necessity is not applied as a standard for judging the  content of a claimed privilege, but for the purpose of  determining the necessary sphere of exclusive or absolute  ’parliamentary’ or ’legislative’ jurisdiction.  If a matter falls  within this necessary sphere of matters without which the  dignity and efficiency of the House cannot be upheld,  courts will not inquire into questions concerning such  privilege.  All such questions will instead fall to the exclusive  jurisdiction of the legislative body.          (emphasis supplied)

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Keeping in view important roles of different  branches of Government, it was observed; "Our democratic government consists of  several branches:  the Crown, as represented by  the Governor General and the provincial  counterparts of that office; the legislative body;  the executive; and the courts.  It is fundamental  to the working of government as a whole that all  these parts play their proper role.  It is equally  fundamental that no one of them overstep its  bounds, that each show proper deference for  the legitimate sphere of activity of the other".

Reference was also made to Fred Harvey v. Attorney  General for New Brunswick, (1996) 2 SCR 876. In that  case, a Member of provincial Legislature was convicted of  illegal practice and was expelled from legislature pursuant  to provincial elections legislation. The allegation proved  against him was that he had induced a 16-year old female  to vote in the election, knowing fully well that she was not  eligible to vote. He was also disqualified for a period of five  years from contesting any election. The Court of Appeal  dismissed the appeal of the appellant. The aggrieved  Member approached the Supreme Court. Dismissing the appeal and upholding the order of the  Court of Appeal, the Supreme Court held that there was  no question that the appellant’s actions amounted to an  attack on the integrity of the electoral process which was  at the heart of a free and democratic society and  constituted a breach of trust deserving of censure. Dealing with Parliamentary privileges and  jurisdiction of Courts, Mc Lachlin, J.  stated; If democracies are to survive, they must  insist upon the integrity of those who seek and  hold public office. They cannot tolerate corrupt  practices within the legislature. Nor can they  tolerate electoral fraud. If they do, two  consequences are apt to result. First, the  functioning of the legislature may be impaired.  Second, public confidence in the legislature  and the government may be undermined. No  democracy can afford either.

When faced with behaviour that undermines  their fundamental integrity, legislatures are  required to act. That action may range from  discipline for minor irregularities to expulsion  and disqualification for more serious  violations. Expulsion and disqualification  assure the public that those who have corruptly  taken or abused office are removed. The  legislative process is purged and the legislature,  now restored, may discharge its duties as it  should.                                         (emphasis supplied)         It was, however, added that it was not to say that  the courts have no role to play in the debate which arises  where individual rights are alleged to conflict with  parliamentary privilege. Under the British system of  parliamentary supremacy, the courts arguably play no  role in monitoring the exercise of parliamentary privilege.  In Canada, that has been altered by the Charter of 1926.  To prevent abuses cloaked in the guise of privilege from  trumping legitimate Charter interests, the courts must  inquire into the legitimacy of a claim of parliamentary

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privilege. As clarified in Canadian Broadcasting  Corporation, the courts may question whether a claimed  privilege exists. This screening role means that where it  is alleged that a person has been expelled or disqualified  on invalid grounds, the courts must determine whether  the act falls within the scope of parliamentary privilege. If  the court concludes that it does, no further review lies.   (emphasis supplied)         It was also stated that British Jurisprudence makes  distinction between privileges asserted by resolution and  privileges effected automatically by statute. In respect of  privileges asserted by resolution, British Courts have  developed a doctrine of necessity, enabling them to  inquire whether the action taken by resolution is  necessary to the proper functioning of the House. The  ’necessity inquiry’ does not ask whether the particular  action at issue was necessary, and hence does not  involve substantive judicial review. It rather asks whether  the dignity, integrity and efficiency of the legislative body  could be maintained if it were not permitted to carry out  the type of action sought to be taken, for example to  expel a member from the Legislature or disqualify a  person from seeking office on ground of corruption.         A question was raised as to whether Parliament  could expel any of its members. Upholding such right,  the Court stated; "The power of Parliament to expel a member is  undoubted. This power has been repeatedly  exercised by the English and Colonial  Parliaments, either when members have been  guilty of a positive crime, or have offended  against the laws and regulations of the House,  or have been guilty of fraudulent or other  discreditable acts, which proved that they were  unfit to exercise the trust which their  constituents had reposed in them, and that  they ought not to continue to associate with  the other members of the legislature.

Expulsion may be justified on two grounds: to  enforce discipline within the House; and to  remove those whose behaviour has made them  unfit to remain as members. \005    \005    \005    \005    \005    \005    \005    \005    \005

The right of expulsion on these two grounds --  discipline and unfit behaviour -- is a matter of  parliamentary privilege and is not subject to  judicial review".                (emphasis supplied)

The Court concluded;

"This protection is now accepted, in Canada as  in Britain, as a fundamental tenet of  parliamentary privilege. The point is not that  the legislature is always right. The point is  rather that the legislature is in at least as good  a position as the courts, and often in a better  position, to decide what it requires to function  effectively. In these circumstances, a dispute  in the courts about the propriety of the  legislative body’s decision, with the delays and  uncertainties that such disputes inevitably  impose on the conduct of legislative business,  is unjustified".

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Very recently, in House of Commons v. Satnam Vaid,  (2005) 1 SCR 667, a chauffeur of a Speaker in spite of an  order in his favour, was not reinstated in service. He  made a complaint to the Canadian Human Rights  Commission to investigate into the matter. The  Commission accepted the complaint of the employee and  referred the matter to the Tribunal. The Speaker  challenged the jurisdiction of the Tribunal contending  that it was his power of ’hire and fire’ and there was no  review. The Tribunal dismissed the challenge. The  Federal Court upheld the Tribunal’s decision. When the  matter reached the Supreme Court, the question as to  applicability of privileges was raised. It was held that  within categories of privilege, Parliament was the sole  judge of the occasion and manner of its exercise and  such exercise was not reviewable by the courts. However,  the existence and scope of the privileges could be  inquired into by Courts. Binnie J. stated; "It is a wise principle that the  courts and Parliament strive to respect each other’s role  in the conduct of public affairs.  Parliament, for its part,  refrains from commenting on matters before the courts  under the sub judice rule.  The courts, for their part, are  careful not to interfere with the workings of Parliament.  None of the parties to this proceeding questions the pre- eminent importance of the House of Commons as ’the  grand inquest of the nation’.  Nor is doubt thrown by any  party on the need for its legislative activities to proceed  unimpeded by any external body or institution, including  the courts.  It would be intolerable, for example, if a  member of the House of Commons who was overlooked  by the Speaker at question period could invoke the  investigatory powers of the Canadian Human Rights  Commission with a complaint that the Speaker’s choice  of another member of the House discriminated on some  ground prohibited by the Canadian Human Rights Act, or  to seek a ruling from the ordinary courts that the  Speaker’s choice violated the member’s guarantee of free  speech under the Charter.  These are truly matters  ’internal to the House’ to be resolved by its own  procedures.  Quite apart from the potential interference  by outsiders in the direction of the House, such external  intervention would inevitably create delays, disruption,  uncertainties and costs which would hold up the nation’s  business and on that account would be unacceptable  even if, in the end, the Speaker’s rulings were vindicated  as entirely proper". Emphasising on resolution of conflict between  Parliament and Courts in respect of ’legitimate sphere of  activity of the other’, the Court observed;  "Our democratic government consists of  several branches: the Crown, as represented  by the Governor General and the provincial  counterparts of that office; the legislative body;  the executive; and the courts.  It is  fundamental to the working of government as  a whole that all these parts play their proper  role.  It is equally fundamental that no one of  them overstep its bounds, that each show  proper deference for the legitimate sphere of  activity of the other". ENGLISH LAW

       English Constitution was neither established by any

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single action nor on any particular day. It has grown  from the political institutions of people who respected  monarchy but equally insisted for democracy and  parliamentary institution. The origins of parliamentary  privileges are thus inextricably interwined with the  history of Parliament in England; and more specifically,  the battle between English Monarch and Parliament;  between the House of Commons and House of Lords as  also between Parliament and Courts.         Parliament emerged in the thirteenth century.  English legal history traces its roots in Magna Carta.  Magna Carta had been described as a ’constitutional  myth’ because it was a document which came into  existence on account of grievances of feudal magnates  (barons) (Ann Lyon : ’Constitutional history of the United  Kingdom, (2003); p.39). The Magna Carta declared that  the King was not above the law.  In its creative sense, in England the House did not  sit down to build its edifice of the powers, privileges and  immunities of Parliament. The evolution of English  Parliamentary institution has thus historical  development. It is the story of conflict between Crown’s  absolute prerogatives and Commons’ insistence for  powers, privileges and immunities; struggle between high  handed actions of Monarchs and People’s claim of  democratic means and methods. Parliamentary privileges  are the rights which Houses of Parliament and members  possess so as to enable them to carry out their functions  effectively and efficiently. Some of the parliamentary  privileges thus preceded Parliament itself.  They are,  therefore, rightly described by Sir Erskine May as  ’fundamental rights’ of the House as against the  prerogatives of the Crown, the authority of ordinary  Courts of Law and the special rights of the House of  Lords.         Initially, the House simply claimed privilege.  They  neither made request to the Crown for their recognition  nor to Courts for their enforcement. Parliamentary  privileges in that sense are outside the law, or a law unto  themselves. For instance, the House would not go to  Crown or to Court for release of its member illegally  detained. It would also not pray for a writ of habeas  corpus.  It would simply command the Sergeant-at-Arms  with the ceremonial mace to the prison and get the  Member released on its own authority.         As Holdsworth (’A History of English Law’, Second  Edition; pp.92-93), stated; "It was the privilege of the  House which enabled it to act freely, to carry on the  controversy with the King in a Parliamentary way, and  thus to secure a continuous development of  constitutional principles. It is, therefore, not surprising to  find that the earliest controversies between James I and  his Parliaments turned upon questions of privilege, and  that these same questions were always in the forefront of  the constitutional controversies all through this period".  He also added that Parliament asserted and used its  privileges to win for itself the position of a partner with  the King in the work of governing the State.         Sir Edward Coke was in favour of ’High Court of  Parliament’ having its law and was of the view that the  matters decided in Parliament were not part of Common  Law. He observed that it was not for a Judge to judge any  law, custom or privilege of Parliament. The laws,  customs, liberties and privileges of Parliament are better  understood by precedents and experience than can be

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expressed by a pen.         As Lord Tennyson stated; "A land of settled government, A land of just and old renown, Where Freedom slowly broadens down, From precedent to precedent."

Let us consider the view points of learned authors,  jurists and academicians on this aspect.         In Halsbury’s Laws of England, (Fourth Edn.;  Reissue : Vol. 34; p. 569; para 1026); it has been stated;         House of Commons’ power of expulsion.          Although the House of Commons has  delegated its right to be the judge in  controverted elections, it retains its right to  decide 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. (emphasis supplied)  

       From the above statement of law, it is explicitly  clear that the two things, namely, (i) expulsion; and (ii)  disqualification are different and distinct.  A member can  be expelled by the Legislature if his conduct renders him  ’unfit’ to continue as such.  It, however, does not ipso  facto disqualify him for re-election.  An expelled member  may be re-elected and no objection can be raised against  his re-election, as was the case of John Wilkes in 1769.         O. Hood Phillips also states (’Constitutional and  Administrative Law’, Fourth Edition; p. 180) that the  House may also expel a member, who although not  subject to any legal disability, is in its opinion unfit to  serve as a member.  This is commonly done when the  Court notifies the Speaker that a member has been  convicted of a misdemeanour.  The House cannot prevent  an expelled member from being re-elected, as happened  several times in the case of John Wilkes between 1769  and 1794, but it can refuse to allow him to take seat.         Wade and Phillips also expressed the same opinion.  In ’Constitutional Law’, (7th Edition; p.793); it was stated;         "The House of Commons cannot of course  create disqualifications unrecognized by law  but it may expel any member who conducts  himself in a manner unfit for membership".

       Sir William Anson in "The Law and Custom of the  Constitution", (Fifth Edn; Vol. I; pp. 187-88) states;         "In the case of its own members, the  House has a stronger mode of expressing its  displeasure.  It can by resolution expel a  member, and order the Speaker to issue his  warrant for a new writ for the seat from which  the member has been expelled.  But it cannot  prevent the re-election of such a member by  declaring him incapable of sitting in that  Parliament.  In attempting to do this, in the  case of Wilkes, the House had ultimately to  admit that it could not create a disqualification

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unrecognized by law".

       Griffith and Ryle in "Parliament, functions, practice  and procedures", (1989), at p.85 stated;         "The reconciliation of these two claims \026  the need to maintain parliamentary privileges  and the desirability of not abusing them \026 has  been the hall-mark of the House of Commons  treatment of privilege issues in recent years".                   Dealing with the penal powers of the House, the  learned authors proceeded to state: (pp.91-92);         "Laws are meaningless unless there is  power to enforce them by imposing penalties  on those who wreak them. The House does not  rely on the courts but has its own penal  jurisdiction.

       The severest and historically most  important power is that of commitment \005.

       Two other punishments can be ordered  for Members who offend the House \026 namely  expulsion, or suspension from the service of  the House for a specified period or until the  end of the session\005.

       Expulsion is the ultimate sanction against  a Member.  It is an outstanding demonstration  of the House’s power to regulate its own  proceedings, even its composition.  The  expulsion of a Member cannot be challenged.           (emphasis supplied)    

Consideration of powers, privileges and immunities  of the British Parliament would not be complete if one  does not refer to relevant statements and propositions of  law by Sir Erskine May in his celebrated and  monumental work titled ’Treatise on the Law, Privileges,  Proceedings and Usage of Parliament’. "This work has  assumed the status of a classic on the subject and is  usually regarded as an authoritative exposition of  parliamentary practice". The attention of the Court was, however, invited to  the changed approach by the Revising Authors on the  power of Parliament to expel a member. It would,  therefore, be appropriate if I refer to both the editions of  1983 and of 2004.         In Twentieth Edition by Sir Charles Gordon (1983),  in Chapter 9 (Penal Jurisdiction of the Houses of  Parliament), it had been stated;

PUNISHMENT INFLICTED ON MEMBERS         In the case of contempts committed  against the House of Commons by Members,  two other penalties are available, viz.  suspension from the service of the House and  expulsion.  In some cases expulsion has been  inflicted in addition to committal.                       There was a sub-topic as under;          Expulsion by the Commons         The purpose of expulsion is not so much  disciplinary as remedial, not so much to  punish Members as to rid the House of

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persons who are unfit for membership.  It may  justly be regarded as an example of the  House’s power to regulate its own constitution.   But it is more convenient to treat it among the  methods of punishment at the disposal of the  House.  

       In Twenty-third Edition by Sir William McKay  (2004), Chapter 9 titles (Penal jurisdiction of Both  Houses).  The relevant discussion reads thus;

PUNISHMENT OF MEMBERS         In the case of contempts committed  against the House of Commons by Members,  or where the House considers that a Member’s  conduct ought to attract some sanction (see  pp. 132-33), two other penalties are available  in addition to those already mentioned :  suspension from the service of the House, and  expulsion, sometimes in addition to committal.                           Under sub-topic ’Expulsion’, it was stated;         EXPULSION         The expulsion by the House of Commons  of one of its Members may be regarded as an  example of the House’s power to regulate its  own constitution, though it is, for convenience,  treated here as one of the methods of  punishment at the disposal of the House.   Members have been expelled for a wide variety  of causes.       

       On the basis of above, it was submitted by the  learned counsel for the petitioners that the power of  expulsion by Parliament as an independent punishment  has not been recognized by May.  It has now remained as  part of power to regulate its own constitution.  Since no  such power has been possessed by Indian Parliament, it  cannot expel any member.         I must frankly admit that I am unable to agree with  the learned counsel. The Revising Author refers to  punishment of members and in no uncertain terms  states that if the House considers conduct (misconduct)  of a Member objectionable attracting sanction,  appropriate punishment can be imposed on him.  Over  and above other penalties, ’expulsion’ has been  specifically and expressly mentioned therein.  As will be  seen later on in this judgment, the Framers of our  Constitution have also reserved this right with the  Parliament/State Legislature.  The above argument of the  petitioners, in my opinion, therefore, does not carry the  case further.

ILLUSTRATIVE CASES

       Though several cases have been cited by the learned  counsel for both the sides in support of their contentions  and submissions, I will refer to the cases which related to  expulsion of membership of Parliament.         Probably, the earliest case was of Mr. Hall. In 1580,  Mr. Hall, a Member of House of Commons published a  book containing derogatory remarks against the Members  of the House. On the basis of a complaint, the matter was  referred to the Privilege Committee which found him  guilty. In spite of apology tendered by him, he was

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committed to the Tower of London for six months, was  fined and also expelled.         In a subsequent case in 1707, Mr. Asquill, a Member  of Parliament wrote a book wherein disparaging remarks  on Christian Religion were made. Though nothing was  stated by him against the House or against Members of  the House, Mr. Asquill was expelled being ’unfit’ as  Member.  Asquill thus established that the House of Commons  could expel a Member for his actions even outside the  House provided the House finds him unfit to be  continued as a Member of Parliament.         In 1819, Mr. Hobhouse, a Member of House of  Commons wrote a pamphlet making the following  comment; "Nothing but brute force, or the pressing fear of it would reform Parliament".

       Contempt proceedings were initiated against  Hobhouse and he was imprisoned.         In 1838, Mr. O’Connell, a member of House of  Commons said, outside the house of Parliament; "Foul perjury in the Torry Committees of  the House of Commons\027who took oaths  according to Justice but voted for Party."

       He was reprimanded. Mr. Sandham was likewise  admonished in 1930 for levelling allegations against the  Members of the House.         Special reference was made to Bradlough v. Gossett,  (1884) 12 QBD 275. In that case, B, duly elected Member  of Borough was refused by the Speaker to administer  oath and was excluded from the House. B challenged the  action.         It was held that the matter related to the internal  management of the House of Commons and the Court  had no power to interfere.         Lord Coleridge, C.J. stated; What is said or done within the walls of  Parliament cannot be inquired into in a  court of law\005 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  efficiency without it". (Burdett v. Abbot,  14 East 148, 152).

       Dealing with the contention that the House  exceeded its legal process in not allowing B to take oath  which he had right to take, the learned Chief Justice  said; "If injustice has been done, it is injustice for which  the courts of law afford no remedy." An appeal should not  be made to the Court but to the constituencies.         As observed by His Lordship in Stockdale v.  Hansard, (1839) 9 Ad & E 1 : 112 ER 1112 (QB), "the  House should have exclusive jurisdiction to regulate the  course of its own proceedings, and animadvert upon any  conduct there in violation of its rules or derogation from  its dignity, stands upon the clearest grounds of  necessity."         Stephen, J. was much more specific and emphatic.  He said;         "The legal question which this statement

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of the case appears to me to raise for our  decision is this:\027Suppose that the House of  Commons forbids one of its members to do  that which an Act of Parliament requires him  to do, and, in order to enforce its prohibition,  directs its executive officer to exclude him from  the House by force if necessary, is such an  order one which we can declare to be void and  restrain the executive officer of the House from  carrying cut?  In my opinion, we have no such  power.  I think that the House of Commons is  not subject to the control of Her Majesty’s  Courts in its administration of the control of  Her Majesty’s Courts in its administration of  that part of the statute-law which has relation  to its own internal proceedings, and that the  use of such actual force as may be necessary  to carry into effect such a resolution as the one  before us is justifiable".

       It was further stated; "It seems to follow that the  House of Commons has the exclusive power of  interpreting the statute, so far as the regulation of its  own proceedings within its own walls is concerned; and  that, even if that interpretation should be erroneous, this  Court has no power to interfere with it directly or  indirectly".         His Lordship concluded;         "In my opinion the House stands with  relation to such rights and to the resolutions  which affect their exercise, in precisely the  same relation as we the judges of this Court  stand in to the laws which regulate the rights  of which we are the guardians, and to the  judgments which apply them to particular  cases; that is to say, they are bound by the  most solemn obligations which can bind men  to any course of conduct whatever, to guide  their conduct by the law as they understand it.   If they misunderstand it, or (I apologize for the  supposition) willfully disregard it, they  resemble mistaken or unjust judges; but in  either case, there is in my judgment no appeal  from their decision.  The law of the land gives  no such appeal; no precedent has been or can  be produced in which any Court has ever  interfered with the internal affairs of either  House of Parliament, though the cases are no  doubt numerous in which the Courts have  declared the limits of their powers outside of  their respective Houses.  This is enough to  justify the conclusion at which I arrive".

       One may not agree with the wider observations of  Stephen, J. particularly in the light of written  Constitution and power of Judicial Review conferred on  this Court which has been held to be ’basic feature’ of  our Constitution. But it certainly indicates approach of  judiciary while dealing with powers, privileges and rights  of Parliament over its members.         I may also refer to a case which is very much  relevant and was referable to a point in time our  Constitution was about to commence.         One Garry Allingham, a Member of Parliament got  published an article on April 3, 1947 (before few months

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of Independence of India) making derogatory remarks  against members of the House. A complaint was made to  the House of Commons. Allingham was called upon to  explain his conduct by the House. Allingham offered  regrets for unfounded imputations against Members and  tendered unconditional apology and said;         "I have humbly acknowledged my  mistake, and nothing could be more  sincere and heart-felt than my remorse  for my action. Having done all that it is  humanly possible to do to put this deeply  regretted affair straight, I am content to  submit myself to this House, confident  that it will act in its traditional spirit of  justice and generosity".

       After the close of Allingham’s speech a resolution  was proposed holding him guilty of gross contempt of the  House and to ’proceed with utmost severity against such  offender’. A motion was moved to suspend Allingham  from service of the House for six months and to deprive  him of salary for that period. But an amendment to the  motion was sought to the effect that Allingham be  expelled from the House and finally the amended  resolution was passed by the House.         Allingham thus clearly established that on the eve of  British Empire in this country and on the dawn of  Independence of India, one of the powers and privileges  enjoyed by British Parliament was power of expulsion of a  member from Parliament.         Finally, I may refer to a post-Constitution case of  Mr. Peter Arthus David Baker (1954).  He was a Member  of House of Commons.  A competent Court of Law held  him guilty of forgery and convicted and sentenced him.   The factum of conviction was officially communicated by  the Court to the Speaker of the House.  Baker, in his  letter to the Speaker of the House, expressed remorse  about his conduct which was not connected with his  position and status as a member of the House.         He, inter alia, stated;         "I must end as I began, by begging the  House to accept my most sincere apology.  I  can only assure you that my regret, remorse  and repentance during the past three months  were doubted by the knowledge that, in  addition to my friends and colleagues  elsewhere, I had also embarrassed my friends  and colleagues in the House of Commons.  I  can only ask you and, through you, them to  accept this expression of these regrets."

       The entire letter was read out to the House.  After  consideration, the following resolution was passed; "Resolved, that Mr. Peter Arthus David Baker be  expelled from this House."

       Baker proved that the House of Commons  possessed and continued to possess power to expel a  Member for his objectionable activity not only in the  House in his capacity as a Member as such but also  outside the House if it is found to be otherwise improper,  or tarnishing the image of the House in public eye or  making him ’unfit’ to continue to be a Member of an  august body.         [This case is also relevant inasmuch as the

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Constitution (Forty-fourth Amendment) Act, 1978 by  which Article 105(3) has been amended, lays down that  whenever a question of powers, privileges and immunities  of Parliament arises, it will be ascertained whether such  power, privilege or immunity was available to the House  of Commons on the day the Amendment came into force,  i.e. on June 20, 1979].         The petitioners strongly relied upon a decision of  the Judicial Committee of the Privy Council in Edward  Keilley v. William Carson, (1842) : 4 MOO PC 63 : 13 ER  225. K was a District Surgeon and Manager of Hospital  while C was a Member of Assembly of Newfoundland. C  made certain adverse remarks in respect of Hospital  Management by K. K threatened C for criticizing the  management and added; "Your privilege shall not protect  you". C complained to the House. The Committee of  Privilege found K guilty of the breach of privilege of the  House and committed him to the goal.         K thereupon brought an action of trespass and false  imprisonment against the defendants but failed. Before  the Privy Council, one of the questions was as to whether  the Assembly of Newfoundland had power to commit for  breach of privilege, as incident to the House as a  legislative body. According to K, the Assembly did not  possess such power. Drawing the distinction between (a)  conquered colonies, and (b) settled colonies, it was urged  that in the former, the power of the Crown was  paramount, but in the latter, the Colonists carried with  them the great Charter of Liberty (Magna Carta) that "No  man shall be imprisoned but by the lawful judgment of  his peers, or by the law of the land."         The Privy Council held that Newfoundland was a  settled and not a conquered colony and the settlers  carried with them such portion of its Common Law and  Statute Law as was conferred and also the rights and  immunities of British subjects. The Judicial Committee  held that the Crown did not invest upon the Legislative  Assembly of Newfoundland the power to commit for its  contempt.         The Committee then proceeded to consider the  question thus; The whole question then is reduced to  this,--whether by law, the power of committing  for a contempt, not in the presence of the  Assembly, is incidental to every local  Legislature. The Statute Law on this subject being  silent, the Common Law is to govern it; and  what is the Common Law, depends upon  principle and precedent. Their Lordships see no reason to think,  that in the principle of the Common Law, any  other powers are given to them, than such as  are necessary to the existence of such a body,  and the proper exercise 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.  "Quando lex aliquid concedit, concedere videtur  et illud, sine qua res ipsa esse non potest."W In  conformity to this principle we feel no doubt  that such an Assembly has the right of  protecting itself from all impediments to the

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due course of its proceeding. To the full extent  of every measure which it may be really  necessary to adopt, to secure the free exercise  of their Legislative functions, they are justified  in acting by the principle of the Common Law.  But the power of punishing any one for past  misconduct as a contempt of its authority, and  adjudicating upon the fact of such contempt,  and the measure of punishment as a judicial  body, irresponsible to the party accused,  whatever the real facts may be, is of a very  different character, and by no means  essentially necessary for the exercise of its  functions by a local Legislature, whether  representative or not. All these functions may  be well performed without this extraordinary  power, and with the aid of the ordinary  tribunals to investigate and punish  contemptuous insults and interruptions.

These powers certainly do not exist in  corporate or other bodies, assembled, with  authority, to make bye-laws for the  government of particular trades, or united  numbers of individuals. The functions of a  Colonial Legislature are of a higher character,  and it is engaged in more important objects;  but still there is no reason why it should  possess the power in question.

It is said, however, that this power  belongs to the House of Commons in England  and this, it is contended, affords an authority  for holding that it belongs as a legal incident,  by the Common Law, to an Assembly with  analogous functions. But the reason why the  House of Commons has this power, is not  because it is a representative body with  legislative functions, but by virtue of ancient  usage and prescription; the lex et consuetude  Parliamenti, which forms a part of the Common  Law of the land, and according to which the  High Court of Parliament, before its division,  and the Houses of Lords and Commons since,  are invested with many peculiar privileges,  that of punishing for contempt being one. And,  besides, this argument from analogy would  prove too much, since it would be equally  available in favour of the assumption by the  Council of the Island, of the power of  commitment exercised by the House of Lords,  as well as in support of the right of  impeachment by the Assembly\027a claim for  which there is not any colour of foundation.

Nor can the power be said to be incident  to the Legislative Assembly by analogy to the  English Courts of Record which 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,

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except only the House of Commons, whose  authority, in this respect, rests upon ancient  usage.

Their Lordships, therefore, are of opinion,  that the principle of the Common Law, that  things necessary, pass as incident, does not  give the power contended for by the  Respondents as an incident to, and included in,  the grant of a subordinate Legislature". (emphasis supplied)

       The Council, in the light of above legal position did  not approve the law laid down earlier in Beaumont v.  Barrett, (1836) 1 MOO PC 80, (in which such right was  upheld and it was ruled that Legislative Assembly of  Jamaica had inherent power to punish for contempt of  the Assembly) and overruled it.         It was submitted that distinguished jurists and  eminent judges considered the question in Keilley and  concluded that Assembly of Newfoundland had no power  to commit a person for contempt which was exercised by  the British Parliament. The ratio in Keilley applies with  equal force to Indian Parliament and it must be held that  the position of our Parliament is not different than that of  Newsouthland and it also does not possess such power  claimed and exercised by British Parliament.         I am unable to agree with the learned counsel for  the petitioners. In my judgment, Keilley has no  application inasmuch as it was decided in the light of  factual, political and legal background which was totally  different. For more than one reason, the ratio in Keilley  cannot be pressed in service in the case on hand. Firstly,  India, after 1950, cannot be termed as a ’colonial  country’ nor its Legislature Colonial or subordinate.  Secondly, it was not to derive powers, privileges or  prerogatives from the Crown either expressly or  impliedly. Thirdly, after January 26, 1950, it is the  written Constitution which has conferred powers,  privileges and immunities on Parliament/Legislatures  and on their members. Fourthly, provisions of the  Constitution themselves expressly conferred certain  powers, privileges and immunities [Arts.105(1), (2); 194  (1), (2)]. It also allowed Parliament to define them by  making an appropriate law and declared that until such  law is enacted, they would be such as exercised by  British Parliament on January 26, 1950 [Arts. 105(3),  194(3)]. Fifthly, the crucial question, in my opinion is not  the fact that the Assembly of Newsouthland had no right  to commit a person for contempt but whether or not the  British Parliament possessed such power on January 26,  1950. Sixthly, Keilley was not a member of Assembly and  as such the ruling in that case has no direct bearing on  the issue raised before this Court. Finally, Keilley was a  case of committal of a person to jail and keeping in view  the fact situation, the Privy Council decided the matter  which is absent here. For all these reasons, in my  considered opinion, reliance on Keilley is of no assistance  to the petitioners.         In fact, in a subsequent case in Thomas William  Doyle v. George Charles Falconer, (1866) LR 1 PC 328, the  distinction between power to punish for contempt and  power to take other steps had been noted by the Privy  Council. It held that the Legislative Assembly of Dominica  did not have the power to punish for contempt as no

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such power was possessed by a Colonial Assembly by  analogy of lex et consuetude Parliamenti which was  inherent in Houses of Parliament in the United Kingdom  as the High Court of Parliament, or in a Court of Justice  as a Court of Record. A Colonial Assembly had no judicial  functions.         The Judicial Committee, however, after referring to  Keilley and other cases, proceeded to state;         If then, the power assumed by the  House of Assembly cannot be maintained by  analogy to the privileges of the House of  Commons, or the powers of a Court of  Record, is there any other legal foundation  upon which it may be rested.  It has not, as  both sides admit, been expressly granted.   The learned counsel for the Appellants  invoked the principles of the Common Law,  and as it must be conceded that the  Common Law sanctions the exercise of the  prerogative by which the Assembly has been  created, the principles of Common Law,  which is embodied in the maxim, "Quando  lex aliquid concedit, concedere videtur et  illud, sine qua res ipsa esse non potest,"  applies to the body so created.  The  question, therefore, is reduced to this : Is  the power to punish and commit for  contempt for contempts committed in its  presence one necessary to the existence of  such a body as the Assembly of Dominica,  and the proper exercise of the functions  which it is intended to execute?  It is  necessary to distinguish between a power to  punish for a contempt, which is a judicial  power, and a power to remove any  obstruction offered to the deliberations or  proper action of a Legislative body during its  sitting, which last power is necessary for  self-preservation.  If a Member of a Colonial  House of Assembly is guilty of disorderly  conduct in the House whilst sitting, he may  be removed, or excluded for a time, or even  expelled; but there is a great difference  between such powers and the judicial power  of inflicting a penal sentence for the offence.   The right to remove for self-security is one  thing, the right to inflict punishment is  another. The former is, in their Lordships’  judgment, all that is warranted by the legal  maxim that has been cited, but the latter is  not its legitimate consequence.  To the  question, therefore, on which this case  depends, their Lordships must answer in  the negative.  (emphasis supplied)

(See also Broom’s Legal Maxims, 10th Edn; p.314)

       With respect, the above observations lay down  correct proposition of law.         Again, in Barton v. Taylor, (1886) 11 AC 197, the  Privy Council, approving Doyle drew a practical line  between defensive action and punitive action on the part  of the Assembly to be taken against erring members, and  said; "Powers to suspend toties quoties, sitting after

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sitting, in case of repeated offences (and, it may be, till  submission or apology), and also to expel for aggravated  or persistent misconduct, appear to be sufficient to meet  even the extreme case of a member whose conduct is  habitually obstructive or disorderly."         An interesting point of law, which has been raised  before this Court was also raised before the Supreme  Court of New South Wales in Armstrong v. Budd, (1969)  71 SR 386 (NSW). Section 19 of the Constitution Act,  1902 laid down that in certain circumstances, a seat in  the Legislative Council would automatically fall vacant. A  was a member of Legislative Council against whom a suit  was filed. During the course of litigation, he gave  evidence. The evidence was disbelieved by the Court and  in the judgment, certain strictures were passed by the  trial Judge. The Legislative Council, on the basis of  comments and adverse observations, passed a resolution  and expelled A from the Council and declared his seat  vacant. A sought a declaration that the resolution was  ultra vires.         It was contended by A that since his case was not  covered by any of the eventualities enumerated in Section  19, he could not be disqualified. The Court, however,  negatived the contention. It observed that the case did  not fall in any of the clauses (a) to (f) of Section 19 of the  Act but stated that the said section did not constitute a  ’complete code’ for the vacation of seat.         Herron, C.J. stated.         For there exist well-recognized overriding  common-law principles which enlarge  parliamentary power. As applying to this case  the first or primary essentials may be stated  thus: in the absence of express grant the  Legislative Council possesses such powers and  privileges as are implied by reason of  necessity, the necessity which occasions the  implication of a particular power or privilege is  such as is necessary to the existence of the  Council or to the due and orderly exercise of  its functions.

His Lordship further stated; This case appears to me to warrant a decision  that in special circumstances there is an area of  misconduct of a Member of Parliament  committed outside the House and disclosed in  curial proceedings which may, in special  circumstances, form a basis for the exercise of  the power of expulsion based upon a finding by  the House that such is necessary to its  existence or to the orderly exercise of its  important legislative functions. (emphasis supplied)

       Wallace, P. agreed with the learned Chief Justice  and observed;         \005I am of the opinion that the Legislative  Council has an implied power to expel a  member if it adjudges him to have been guilty of  conduct unworthy of a member.  The nature of  this power is that it is solely defensive\027a  power to preserve and safeguard the dignity  and honour of the Council and the power  conduct and exercise of its duties.  The power  extends to conduct outside the Council

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provided the exercise of the power is solely and  genuinely inspired by the said defensive  objectives.  The manner and the occasion of  the exercise of the power are for the decision of  the Counsel.                      (emphasis supplied)  

       Sugerman, J. in concurring opinion formulated the  doctrine of necessity in an effective manner by making  the following instructive observations;         "This necessity compels not only the  conceded power to expulsion arising from  disorderly conduct within the Chamber, but  also expulsion arising from conduct outside  the chamber, which, in the opinion of the  Council, renders a man unfit for service and  therefore one whose continued membership of  the Council would disable the Council from  discharging its duty and protecting its dignity  in the sense mentioned.  That the proper  discharge of the legislative function by the  Council demands an orderly conduct of its  business is undoubted.  That it demands  honesty and probity of its members should be  equally undoubted.  Indeed, the need for  removal and replacement of a dishonest  member may be more imperative as a matter of  self-preservation, than that of an unruly  member".                                 (emphasis supplied)

Mr. Andhyarujina, Sr. Advocate appearing for Union  of India placed before this Court particulars of expulsion  of members from the House of Commons in the last three  and half centuries. The particulars are as under; Date Member and Constituency Reason

22nd  November  1667 John Ashburnham (Sussex) Accepted a bribe  (#500 from  merchants who  wished to import  French wines). 21st April  1668 Hon. Henry Brouncker (New  Romney) Invented orders from  the Duke of York to  down sail, which  prevented England  capitalising on its  naval victory off  Lowestoft in 1665. 1st  February  1678 Thomas Wancklyn (Westbury) Corrupt misuse of  the privilege of  Parliament against

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arrest of MP’s  ’menial servants’. 25th  March  1679 Edward Sackville (East  Grinstead) Denunciation of  Titus Oates as a  ’lying rogue’ and  disbelief in the  ’Popish Plot’. 28th  October  1680 Sir Robert Cann, Bt. (Bristol) Statement that the  attempt to exclude  the Duke of York  from the succession  was a ’Presbyterian  Plot’. 29th  October  1680 Sir Francis Wythens  (Westminster) Presented a petition  abhorring the  summons of a  Parliament which  would exclude the  Duke of York from  the succession. 14th  December  1680 Sir Robert Peyton (Middlesex) Association with the  Duke of York and  alleged complicity in  the ’Meal-Tub Plot’  (attempt to implicate  exclusionists in a  plot to kill the King  and establish a  Commonwealth). 20th  January  1690 Sir Robert Sawyer (Cambridge  University) Leading the  prosecution of Sir  Thomas Armstrong  for treason in the  Rye House Plot  while Attorney- General. Armstrong  was convicted,  sentenced to death  and eventually  hanged, but his  conviction was later  ruled a miscarriage

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of justice. 16th  March  1695 Sir John Trevor (Yarmouth, Isle  of Wight) Corruption (Speaker  of the House of  Commons). Paid  1,000 guineas from  the Corporation of  London on passage  of the Orphans Bill. 26th  March  1695 John Hungerford (Scarborough) Paid 20 guineas  from the Corporation  for his conduct as  Chairman of the  Committee of the  Whole House on the  Orphans Bill. 1st  February  1698 Charles Duncombe (Downton) Obliged to pay  #10,000 to public  funds, Duncombe  bought Exchequer  Bills at a 5%  discount and  persuaded the seller  (John da Costa) to  endorse them as  though they had  been paid to him for  excise duty. This  allowed him to pay  them in at face value  and keep the  discount himself. 1st  February  1698 John Knight (Weymouth and  Melcombe Regis) Persuaded his  brother William and  Reginald Marriott, a  Treasury Official,  falsely to endorse  #7,000 of Exchequer  Bills as though they  were paid to settle  tax payments (this  meant that the Bills,  circulated at a 10%  discount, increased  to their face value).  Tried to persuade  Marriott to take the  full blame.

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10th  February  1699 James Isaacson (Banbury) Commissioner of  Stamp Duty; this  office was a  disqualification  under the Lottery  Act of 1694. 13th  February  1699 Henry Cornish (Shaftesbury) Commissioner in the  Stamp Office  managing Duties on  Vellum, Paper and  Parchment; this  office was a  disqualification  under the Lottery  Act of 1694. 14th  February  1699 Samuel Atkinson (Harwich) Commissioner for  licensing hawkers  and pedlars; this  office was a  disqualification  under the Lottery  Act of 1694. 14th  February  1699 Sir Henry Furnese (Bramber) Trustee for  circulating  Exchequer Bills;  acting as Receiver  and Manager of the  subscription of the  new East India  Company. These  offices were  disqualifications  under the Lottery  Act of 1694. 20th  February  1699 Richard Wollaston  (Whitchurch) Receiver-General of  Taxes for  Hertfordshire; this  office was a  disqualification  under the Lottery  Act of 1694. 19th  February  1701

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Sir Henry Furnese (Sandwich) Trustee for  circulating  Exchequer Bills; this  office was a  disqualification  under the Lottery  Act of 1694. 22nd  February  1701 Gilbert Heathcote (City of  London) Trustee for  circulating  Exchequer Bills; this  office was a  disqualification  under the Lottery  Act of 1694. 1st  February  1703 Rt. Hon. Earl of Ranelagh  (West Looe) As Paymaster- General of the  Army, appropriated  #904,138 of public  funds; had severe  discrepancies in his  accounts, which  were only made up  to March 1692. 18th  December  1707 John Asgill (Bramber) Indebted to three  creditors (among  them Colonel John  Rice) for #10,000.  Author of a book  which argued that  the Bible proved  man may be  translated from life  on earth to eternal  life in heaven  without passing  through death. The  House held it to be  blasphemous. The  same member was  also expelled from  the Irish Parliament  on 11th October  1703. 15th  February  1711 Thomas Ridge (Poole) Having been  contracted to supply  the fleet with 8,217

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tuns of beer,  supplied only 4,482  tuns from his  brewery and paid  compensation at a  discounted rate for  the non-supplied  beer, thereby  defrauding public  funds. 12th  January  1712 Robert Walpole (King’s Lynn) Corruption while  Secretary at War.  Forage contracts he  negotiated stipulated  payments to Robert  Mann, a relation of  Walpole’s, but  Walpole signed for  them and therefore  received the money. 19th  February  1712 Rt. Hon. Adam de Cardonnel  (Southampton) While Secretary to  the Duke of  Marlborough, he  received an annual  gratuity of 500 gold  ducats from Sir  Solomon de Medina,  an army bread  contractor. 18th  March  1714 Sir Richard Steele  (Stockbridge) Seditious libel.  Published an article  in The Guardian and  a pamphlet called  The Crisis exposing  the government’s  support for French  inaction on the  demolition of  Dunkirk; demolition  was required under  the Treaty of  Utrecht. 2nd  February  1716 Thomas Forster  (Northumberland) Participation in the  1715 Jacobite  rebellion (he was  General of all the

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pretender’s forces in  England). 23rd  March  1716 Lewis Pryse (Cardiganshire) Refused to attend the  House to take oaths  of loyalty after the  Jacobite rebellion. 22nd June  1716 John Carnegie (Forfarshire) Participation in the  1715 Jacobite  rebellion. 23rd  January  1721 Jacob Sawbridge (Cricklade) Director of the South  Sea Company. 28th  January  1721 Sir Robert Chaplin, Bt. (Great  Grimsby) Director of the South  Sea Company. 28th  January  1721 Francis Eyles (Devizes) Director of the South  Sea Company. 30th  January  1721 Sir Theodore Janssen, Bt.  (Yarmouth, Isle of Wight) Director of the South  Sea Company. 8th March  1721 Rt. Hon. John Aislabie (Ripon) Negotiated the  agreement to take  over the national  debt between the  South Sea Company  and the government,  as Chancellor of the  Exchequer; received  #20,000 of South  Sea Company stock;  destroyed evidence  of his share dealings. 10th  March  1721 Sir George Caswall  (Leominster) Banker of the South  Sea Company;  obtained for his

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company #50,000  stock in the South  Sea Company while  the South Sea Bill  was still before  Parliament, and  without paying for it. 8th May  1721 Thomas Vernon (Whitchurch) Attempt to influence  a member of the  committee on the  South Sea bubble in  favour of John  Aislabie, his brother- in-law. 15th  February  1723 Viscount Barrington (Berwick- upon-Tweed) Involvement in a  Lottery held in  Hanover, but  organized in  London. The House  declared it illegal. 4th  February  1725 Francis Elde (Stafford) Corrupt attempt to  compromise an  election petition  against him. 16th May  1726 John Ward (Weymouth and  Melcombe Regis) Involved in a fraud  against the estate of  the late Duke of  Buckingham -  compelled to buy  Alum from Ward’s  Alum works, but  which Ward kept  and sold again to  others. 30th  March  1732 John Birch (Weobley) Fraudulent sale of  the Derwentwater  Estate (escheated to  the Crown by the  Earl of  Derwentwater,  convicted of High  Treason during the  1715 rebellion). 30th  March

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1732 Denis Bond (Poole) Fraudulent sale of  the Derwentwater  Estate (escheated to  the Crown by the  Earl of  Derwentwater,  convicted of High  Treason during the  1715 rebellion). 3rd April  1732 George Robinson (Great  Marlow) Fraudulent use of the  funds of the  Charitable  Corporation for  speculation.  Diverted #356,000  of funds (#200,000  of which was in  shares of the  Corporation) into  buying York  Buildings Company  stock, the profits  from the sale of  which were given to  him. 4th May  1732 Rt. Hon. Sir Robert Sutton  (Nottinghamshire) False statement that  the Charitable  Corporation’s  authorized capital  had been exhausted,  allowing it to issue  more (and so finance  the corrupt  speculation of other  directors). 5th May  1732 Sir Archibald Grant, Bt.  (Aberdeenshire) Fraudulent use of the  funds of the  Charitable  Corporation for  speculation.  Arranged for George  Robinson (see  above) to abscond. 20th  January  1764 John Wilkes (Aylesbury) Absconded to France  after being charged  with libel over issue  no. 45 of the North

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Briton. 3rd  February  1769 John Wilkes (Middlesex) Previous conviction  for libel and  blasphemy, and a  further seditious  libel in the  Introduction to a  letter to Daniel  Ponton (Chairman of  Quarter Sessions at  Lambeth) in the St.  James’s Chronicle. (17th  February  1769 John Wilkes (Middlesex) Returned despite his  previous expulsion.  The House resolved  that he "was, and is,  incapable of being  elected a Member to  serve in the present  Parliament.") 4th  December  1783 Christopher Atkinson (Hedon) Convicted of perjury  after swearing that  accusations against  him of fraud were  untrue. The  accusations related  to his dealings with  the Victualling  Board, and were in a  letter printed in the  General Advertiser  on 31st January  1781. 2nd May  1796 John Fenton Cawthorne  (Lincoln) Convicted by court  martial of fraud and  embezzlement of the  funds of the  Westminster  Regiment of the  Middlesex Militia;  cashiered for  conduct unbecoming  the character of an  officer and a  gentleman. 23rd May  1810 Joseph Hunt (Queenborough) Absconded to

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Lisbon after being  found to have  embezzled public  funds as Treasurer of  the Ordnance.  During his term he  left a deficit of  #93,296. 5th March  1812 Benjamin Walsh (Wootton  Bassett) Convicted (later  pardoned) of  attempting to  defraud Solicitor- General Sir Thomas  Plumer. Plumer had  given Walsh a draft  of #22,000 with  which to buy  exchequer bills, but  Walsh used it to play  the lottery, and lost;  he then converted  his remaining assets  into American  currency and set off  for Falmouth to sail  to America, but was  brought back. Walsh  had been expelled by  the Stock Exchange  for gross and  nefarious conduct in  1809. 5th July  1814 Hon. Andrew James Cochrane  (Grampound) Convicted of  conspiracy to  defraud (circulated  false rumours of the  defeat and death of  Napoleon  Buonaparte in order  to boost share  prices); absconded to  France before  sentence. 5th July  1814 Lord Cochrane (Westminster) Convicted of  conspiracy to  defraud (circulated  false rumours of the  defeat and death of  Napoleon  Buonaparte in order  to boost share  prices). 16th  February

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1857 James Sadleir (Tipperary) Absconded after  arrest for fraudulent  conversion. He had  abstracted #250,000  of stock from the  Tipperary Joint- Stock Bank for his  brother’s use. 22nd  February  1882 Charles Bradlaugh  (Northampton) Contempt of orders  of the House of  Commons excluding  him from the  Parliamentary estate. 12th May  1891 Edmund Hope Verney  (Buckingham) Convicted of  procuring a girl  under the age of 21  (Miss Nellie Maud  Baskett) for an  immoral purpose. 26th  February  1892 Edward Samuel Wesley de  Cobain (Belfast, East) Absconded to the  United States of  America after a  warrant for his arrest  on charges of  commission of acts  of gross indecency  was issued. On 21st  March 1893 he was  convicted and  sentenced to twelve  months’  imprisonment with  hard labour. 2nd  March  1892 George Woodyatt Hastings  (Worcestershire, Eastern) Convicted of  fraudulent  conversion. As a  Trustee for property  under the will of  John Brown,  appropriated to  himself over  #20,000 from the  estate. 1st

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August  1922 Horatio William Bottomley  (Hackney, South) Convicted of  fraudulent  conversion. Invited  contributions to the  Victory Bond Club  which were  supposed to be  invested in  government stock,  but were actually  diverted to his own  use. 30th  October  1947 Garry Allighan (Gravesend) Contempt of the  House of Commons:  breach of privilege  over article in  ’World’s Press  News’ alleging  corruption and  drunkenness among  Members; lying to  the committee  investigating the  allegations. 16th  December  1954 Peter Arthur David Baker  (Norfolk, South) Convicted of  uttering forged  documents. Forged  signatures on letters  purporting to  guarantee debts in  excess of #100,000  owed by his  companies.

INDIAN LAW : HISTORIAL BACKGROUND It is no doubt true that the existing law relating to  parliamentary privileges in India is essentially of English  origin. But the concept of parliamentary privileges was  not unknown to ancient India. Prititosh Roy in his work  ’Parliamentary Privilege in India’ (1991) states that even  during Vedic times, there were two assemblies; Sabha  and Samiti which were keeping check on all actions of the  King. Reference of Sabha and Samiti is found in all  Vedas. In Buddhist India, we find developed  parliamentary system. Members were not allowed to  disobey directions of Assemblies. Offenders were  answerable to Assemblies and after affording an  opportunity to them, appropriate actions used to be  taken against erring officers. It has thus ’rudimentary  features’ of parliamentary privilege of today.

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In 1600, East India Company came to India  primarily as ’trader’. The British Parliament effectively  intervened into the affairs of the Company by passing the  East India Company Act, 1773 (popularly known as ’the  Regulating Act, 1773’), which was followed by the Act of  1784. The roots of modern Parliamentary system were  laid in various Charter Acts of 1833, 1853, 1854, 1861,  1892, 1909, etc. During 1915-50, there was remarkable growth and  development of Parliamentary privileges in India. For the  first time, a limited right of freedom of speech was  conferred on the Members of Legislature by the  Government of India Act, 1919 (Section 67). By the  Legislative Members Exemption Act, 1925, two  parliamentary privileges were allowed to Members; (i)  exemption from jury service; and (ii) freedom from arrest. The Government of India Act, 1935 extended the  privileges conferred and immunities granted. The Indian  Independence Act, 1947 accorded sovereign legislative  power on the Indian Dominion. CONSTITUTIONAL PROVISIONS The Constitution of India came into force from  January 26, 1950. Part V contains the relevant  provisions relating to the Union. Whereas Chapters I and  IV deal with the Executive and Judiciary; Chapters II and  III relate to Parliament. Articles 79 to 88 provide for  constitution, composition, duration, etc. of both the  Houses and qualification of members, Articles 89 to 98  make provisions for election of Speaker, Deputy Speaker,  Chairman, Deputy Chairman and their salaries and  allowances. Article 101 deals with vacation of seats and  Article 102 specifies circumstances in which a person is  held disqualified to be chosen as or continued to be a  Member of Parliament. Article 103 attaches finality to  such decisions. Three Articles are relevant and may be reproduced; 101. Vacation of seats.\027 (1) No person  shall be a member of both Houses of  Parliament and provision shall be made by  Parliament by law for the vacation by a  person who is chosen a member of both  Houses of his seat in one House or the  other.

(2) No person shall be a member both of  Parliament and of a House of the  Legislature of a State, and if a person is  chosen a member both of Parliament and  of a House of the Legislature of a State,  then, at the expiration of such period as  may be specified in rules made by the  President, that person’s seat in  Parliament shall become vacant, unless he  has previously resigned his seat in the  Legislature of the State.

(3) If a member of either House of  Parliament\027

(a) becomes subject to any of the  disqualifications mentioned in clause (1)  or clause (2) of article 102, or

(b) resigns his seat by writing under his  hand addressed to the Chairman or the

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Speaker, as the case may be, and his  resignation is accepted by the Chairman  or the Speaker, as the case may be,

\027his seat shall thereupon become vacant:

Provided that in the case of any  resignation referred to in sub-clause (b), if  from information received or otherwise  and after making such inquiry as he  thinks fit, the Chairman or the Speaker,  as the case may be, is satisfied that such  resignation is not voluntary or genuine,  he shall not accept such resignation.

(4) If for a period of sixty days a member  of either House of Parliament is without  permission of the House absent from all  meetings thereof, the House may declare  his seat vacant:

Provided that in computing the said  period of sixty days no account shall be  taken of any period during which the  House is prorogued or is adjourned for  more than four consecutive days.

102.Disqualifications for membership.\027  (1) A person shall be disqualified for  being chosen as, and for being, a member  of either House of Parliament\027

(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  acknowledgment of allegiance or  adherence to a foreign State;

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

Explanation.\027For the purposes of this  clause a person shall not be deemed to  hold an office of profit under the  Government of India or the Government of  any State by reason only that he is a  Minister either for the Union or for such  State.

(2) A person shall be disqualified for being  a member of either House of Parliament if  he is so disqualified under the Tenth  Schedule.

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103. Decision on questions as to  disqualifications of members.\027 (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.

Article 105 provides for powers, privileges and  immunities of the members of Parliament. It is the  most important provision as to the controversy  raised in the present proceedings, and may be  quoted in extenso; 105. Powers, privileges, etc., of the  Houses of Parliament and of the  members and committees thereof.\027  (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 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 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.                (emphasis supplied)

Articles 107-22 contain provisions as to  legislative procedure. Article 118 enables both the  Houses of Parliament to make Rules for regulating  procedure and conduct of business. Article 121  puts restriction on discussion in Parliament in

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respect of conduct of any Judge of the Supreme  Court or of a High Court in the discharge of his  duties. Article 122 prohibits courts from inquiring  into or questioning the validity of any proceedings  in Parliament on the ground of irregularity of  procedure. It reads thus; 122. Courts not to inquire into proceedings  of Parliament.\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.                                         (emphasis supplied)

EXPULSION OF MEMBERS BY PARLIAMENT         There are certain instances wherein Indian  Parliament has exercised the power of expulsion of its  members.         The first case which came up for consideration  before Parliament was of Mr. H.G. Mudgal, a Member of  Lok Sabha. He suppressed certain material facts as to his  relationship with the Bombay Bullion Association. A  Committee of Enquiry found the charges proved and  came to the conclusion that the conduct of the Hon’ble  Member was ’derogatory of the dignity of the House  inconsistent with the standard which Parliament is  entitled to expect from its members’.          While addressing the House, the then Prime  Minister Pandit Jawaharlal Nehru referred to the work of  Sir Erkskine May, Article 105(3) of the Constitution and  practice in the British House.         But Pt. Nehru, in my opinion, rightly added; "Apart from that, even if the Constitution had  made no reference to this, this House as a  sovereign Parliament must have inherently the  right to deal with its own problems as it chooses  and I cannot imagine anybody doubting that  fact". (emphasis supplied)

Regarding approach of House in such cases, he  said;         "Indeed, I do not think it is normally  possible for this House in a sense to convert  itself into a court and consider in detail the  evidence in the case and then come to a  decision. Of course : the House is entitled to do  so : but it is normally not done : nor is it  considered, the proper procedure".

He then stated;

"The question arises whether in the  present case this should be done or something  else. I do submit that it is perfectly clear that  this case is not even a case which might be  called a marginal case, where people may have  two opinions about it, where one may have  doubts if a certain course suggested is much

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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  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".  

A motion was then moved to expel Mr. Mudgal  which was accepted by the House and Mr. Mudgal was  expelled. Likewise, power of expulsion was exercised by  Parliament against Mr. Subramanyam Swami (Rajya  Sabha) and Mrs. Indira Gandhi (Lok Sabha). The power  was also exercised in case of expulsion from Legislative  Assemblies of various States. Kaul and Shakhder in their book ’Practice and  Procedure of Parliament’, (5th Edn., p.262), stated; Punishment of Members: In the case  of its own members, two other  punishments are also available to the  House by which it can express its  displeasure more strongly than by  admonition or reprimand, namely,  suspension from the service of the House  and expulsion.

EXPULSION OF MEMBERS AND COURTS         Concrete cases have also come before Indian  Judiciary against orders of expulsion passed by the  Legislature.  Let us consider leading decisions on the  point.         So far as this Court is concerned, probably this is  the first case of the type and, therefore, is of extreme  importance. Few cases, which had come up for  consideration earlier did not directly deal with expulsion  of membership from Legislature.  As already noted above,  though in some cases, Parliament had taken an action of  expelling its members, the aggrieved persons had not  approached this Court?.         The first case which came to be decided by the  Constitution Bench of this Court was M.S.M. Sharma v.  Shri Sri Krishna Sinha & Ors., 1959 Supp (1) SCR 806 :  AIR 1959 SC 395 (’Searchlight’ for short).  The petitioner,  who was Editor of English daily newspaper ’Searchlight’  published unedited proceedings of the Assembly.  The  Legislative Assembly issued a notice for violating privilege  of the House and proposed to take action.  The petitioner  challenged the proceedings inter alia contending that  they were in violation of fundamental right of free speech  and expression guaranteed under Article 19 (1)(a) read

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with right to life under Article 21 of the Constitution.         Considering Article 194(3) [which is pari materia to  Article 105(3)] of the Constitution, and referring to  English Authorities, Das, CJ observed (for the majority);         The result of the foregoing discussion,  therefore, is that the House of Commons had  at the commencement of our Constitution the  power or privilege of prohibiting the  publication of even a true and faithful report of  the debates or proceedings that take place  within the House.  A fortiori the House had at  the relevant time the power or privilege of  prohibiting the publication of an inaccurate or  garbled version of such debates or  proceedings.  The latter part of Art. 194(3)  confers all these powers, privileges and  immunities on the House of the Legislature of  the States, as Art. 105(3) does on the Houses  of Parliament.

       On the construction of Article 194(3), His Lordship  stated; Our Constitution clearly provides that until  Parliament or the State Legislature, as the case  may be, makes a law defining the powers,  privileges and immunities of the House of  Commons as at the date of the commencement  of our Constitution and yet to deny them those  powers, privileges and  immunities, after  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)

Harmoniously interpreting and reconciling Articles  194(3) and 19(1)(a), the Court held that in respect of  parliamentary proceedings, Article 19(1)(a) had no  application.         It is thus clear that Searchlight had nothing to do  with expulsion of a member, though it was relevant so far  as construction of Article 194(3) was concerned.         Another leading case of this Court was Powers,  Privileges and Immunities of State Legislatures, Article 143  of the Constitution, Re (’Keshav Singh’ for short), (1965) 1  SCR 413 : AIR 1965 SC 745.  Though Keshav Singh was  not a case of expulsion of a member of Legislature, it is  important as in exercise of ’advisory opinion’ under  Article 143 of the Constitution, a larger Bench of seven  Judges considered various questions, including powers,  privileges and immunities of the Legislature.         In that case, K, who was not a member of the  House, published a pamphlet.  He was proceeded against  for contempt of the House and breach of privilege for  publishing a pamphlet and was sent to jail. K filed a  petition for habeas corpus by engaging S as his advocate  and a Division Bench of two Judges of the High Court of  Allahabad (Lucknow Bench) released him on bail.  The  Assembly passed a resolution to take in custody K, S as

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also two Hon’ble Judges of the High Court.  Both the  Judges instituted a writ petition in the High Court of  Allahabad.  A Full Court on judicial side admitted the  petition and granted stay against execution of warrant of  arrest against Judges.  In the unusual and extraordinary  circumstances, the President of India made reference to  this Court under Article 143 of the Constitution.         One of the questions referred to by the President  related to Parliamentary privileges vis-‘-vis power of  Court.  It read thus;         (4)     Whether, on the facts and  circumstances of the case, it was competent  for the Full Bench of the High Court of Uttar  Pradesh to entertain and deal with the  petitions of the said two Hon’ble Judges and  Mr. B. Solomon, Advocate, and to pass interim  orders restraining the Speaker of the  Legislative Assembly of Uttar Pradesh and  other respondents to the said petitions from  implementing the aforesaid direction of the  said Legislative Assembly.

       Before considering the ambit and scope of Article  194(3) and jurisdiction of the Legislature and the power  of judicial review of the High Court under Article 226, the  learned Chief Justice gave a golden advice stating;           In coming to the conclusion that  the   content of Art. 194(3) must ultimately  be   determined by courts and not  by the  legislatures, we are not unmindful of the   grandeur and majesty of  the  task      which has  been  assigned to the Legislatures under the  Constitution. Speaking broadly, all the  legislative chambers in our country today are  playing a significant role in the pursuit of the  ideal of a Welfare State which has been placed  by the Constitution before our country, and  that naturally gives the legislative chambers a  high place in the making of history today.  The  High Courts also have to play an equally  significant role in the development of the rule  of law and there can be little doubt that the  successful working of the rule of law is the  basic foundation of the democratic way of life.    In this connection  it  is necessary to remember   that  the  status, dignity and importance of  these two respective institutions, the    Legislatures and the Judicature, are derived    primarily from ’the status dignity and   importance of  the  respective causes that are   assigned  to  their   charge by the Constitution.   These two august bodies as well as the  Executive which is another important    constituent of a democratic State, must  function not in antinovel nor in a spirit of  hostility, but rationally, harmoniously and in    spirit of understanding within their respective  spheres, for such harmonious   working of the  three constituents of   the democratic state  alone will help the peaceful development,  growth and stabilization of the democratic way  of life in this country.  

But when, as    in the present case, a  controversy arises between the House and the

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High Court, we must deal with    the problem  objectively and impersonally.  There is no  occasion to import heat into the debate or  discussion and no justification for the use of  strong language. The problem presented  to  us   by  the  present  reference     is one of construing  the relevant provisions of the Constitution and  though its consideration may present some  difficult aspects, we  must  attempt to find the  answers as best  as we  can.     In dealing with  a dispute like the present which concerns the  jurisdiction, the dignity and the independence  of two august bodies in a State, we must  remember that the objectivity of our approach  itself may incidentally be on trial.   It is,  therefore, in a spirit of detached objective  enquiry which is the distinguishing feature of  judicial process that we propose to find  solutions to the questions framed for our  advisory opinion.  If ultimately we come to the  conclusion that the view pressed before us by  Mr. Setalvad for the High Court is erroneous,  we would not hesitate to pronounce our verdict  against that view.  On the other hand, if we  ultimately come to the conclusion that the  claim made by Mr. Seervai for the House  cannot, be sustained, we would not falter to  pronounce our verdict accordingly.  In dealing  with problems of this importance and  significance, it is essential that we should  proceed to discharge our duty without fear or  favour, affection or ill-will and with the full  consciousness that it is our solemn obligation to  uphold the Constitution and the laws.    (emphasis supplied)         Then analyzing Article 194(3), the Court stated;         That takes us to clause (3).  The first part  of this clause empowers the Legislatures of  States to make laws prescribing their powers,  privileges and immunities; the latter part  provides that until such laws are made, the  Legislatures  in question  shall  enjoy the same  powers, privileges and immunities  which  the  House of Commons  enjoyed  at the  commencement of the Constitution. The  Constitution-makers must have thought that  the Legislatures would take some time to make  laws in respect of their powers, privileges and  immunities. During the interval, it was clearly  necessary to confer on  them the necessary  powers, privileges and immunities. There can  be little doubt that    the powers, privileges and  immunities which are contemplated by cl. (3),  are incidental powers, privileges and  immunities which every Legislature must  possess in order that it may be able to function  effectively, and that explains the purpose of  the latter part of clause (3).   

This clause requires that the powers,  privileges and immunities which are claimed  by the House must be shown to have subsisted  at the commencement of the Constitution, i.e.,  on January 26, 150.  It is well-known that out  of a large number o privileges and powers

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which the House of  Commons claimed  during   the days  of its  bitter  struggle      for recognition,  some were given up in course of time, and  some virtually  faded  out by desuetude; and  so,  in every case where a power is claimed, it  is necessary to enquire whether it was an  existing power at the relevant time.    It must  also appear that the said power was not only  claimed by the House of Commons, but was  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 ?      

       It would be recalled that Art. 194(3)  consists of two parts. The first part empowers  the Legislature to define by law from time to  time its powers, privileges and immunities,  whereas the second part provides that until  the legislature chooses so to define its powers,  privileges and immunities, its powers,  privileges and immunities would be those of  the House of Commons of the Parliament of  the United Kingdom and of its members and  committees, at the commencement of the  Constitution.   Mr.  Seervai’s argument is that  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 favorable 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 qualifications  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  an powers and privileges which were possessed

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by the House of Commons at the relevant time  can be claimed by the House.

Referring to conflict between two august organs of  the State and complimenting the solution adopted by  them in England, the learned Chief Justice said;         It has been common ground between the  Houses and the   courts that privilege depends  on the "known laws and customs of  Parliament", and not on the ipse dixit of either  House. The question in dispute was whether  the law of Parliament was a "particular" law or  part of the common law in its wide and  extended sense, and in the former case  whether it was a superior law which overrode  the common law.  Arising out of this question  another item of controversy arose between the  courts and the Parliament and that was  whether a matter of privilege should be judged  solely by the House which it concerned, even  when the rights of third parties were involved,  or whether it might in  certain cases be  decided in the courts, and, if so, in what sort   of cases. The points of view adopted by the  Parliament and the courts appeared to be  irreconcilable.  The  courts claimed     the  right  to decide for themselves when  it  became  necessary  to  do  so in proceedings  brought   before  them, questions  in relation to the  existence or extent  of  these privileges,  whereas both the Houses claimed to be   exclusive judges of their own privileges.    Ultimately, the two  points of   view  were  reconciled  in practice and a solution  acceptable to both he parties was  gradually  evolved.        This solution  which is marked out  by the courts is to insist  on their  right  in   principle  to decide all  questions   of privilege   arising in litigation before them,  with  certain  large  exceptions in favour of parliamentary   jurisdiction. Two of these are the exclusive  jurisdiction of each House over its own internal  proceedings, and the right of either House to  commit and punish for contempt.   May adds  that while it cannot be claimed that either  House has formally acquiesced in this  assumption of jurisdiction by the courts, the  absence of any conflict for over a century may  indicate a certain measure of tacit acceptance.   In other words, ’the question about the  existence and extent of privilege is generally  treated as justiciable in courts where it   becomes relevant for adjudication of any  dispute brought before the courts.

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

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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. Naturally, as  a result of this dualism the decisions of the  courts are not accepted as binding by the  House in matters of     privilege, nor the decision  of the House by the courts; and as May points  out, on the theoretical plane, the old dualism  remains unresolved.  In 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   supremacy        over  the  ordinary  courts of justice which was  enjoyed  by      the undivided  High  Court of Parliament. The  supremacy of Parliament,  consisting  of   the King and  the two Houses, is a legislative  supremacy which has nothing to  do  with the privilege jurisdiction  of either House  acting singly.  

         (2)  It is admitted by both  Houses that, since neither House  can by itself add to the law,  neither House can by its own  declaration create a new privilege.  This implies    that privilege is  objective and its extent  ascertainable, and reinforces the  doctrine that it is known by the  courts.

On the other hand, the courts  admit\027  

     (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.

       Paying tribute to English genius, the learned Chief

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

       Construing Article 212 in its proper perspective and  drawing distinction between ’irregularity’ and ’illegality’,  the Court stated;         Art. 212(1) makes a provision which is   relevant. It lays down that the validity of any  proceedings in  the Legislature of a State shall  not be called in question on the ground of any  alleged irregularity of procedure.      Art.  212(2) confers immunity on the officers and  members of the Legislature  in   whom  powers  are vested  by  or  under the Constitution  for   regulating procedure or  the conduct  of  business, or for maintaining order, in the  Legislature from being subject to the  jurisdiction of any court in respect of the  exercise by him of those powers.  Art. 212(1)  seems to make it possible for a citizen to call in  question in the appropriate court of    law the  validity of any proceedings inside the  legislative chamber if his case is that the said  proceedings suffer not from mere irregularity  of procedure,    but from an illegality.   If the  impugned procedure is illegal and  unconstitutional, it would be open to be  scrutinised in a court of law, though such  scrutiny is prohibited if the complaint against  the procedure is no more than this that the  procedure was irregular.  That again is another  indication which may afford some assistance  in construing the scope and extent of the  powers conferred on the House by Art. 194(3).

Advisory opinion of this Court in Keshav Singh thus  is of extreme importance. Though it did not deal with the  question of expulsion directly or even indirectly, it  interpreted the relevant and material provisions of the  Constitution relating to the powers, privileges and  immunities of Parliament/State Legislature keeping in  view the powers, privileges and immunities enjoyed by  the British Parliament.         Let us now consider few High Court decisions on  the point which are directly on the point.         In Raj Narain v. Atmaram Govind & Anr., AIR 1954  All 319, the petitioner who was an elected representative  of the Legislative Assembly of Uttar Pradesh wanted to  move a motion in connection with forcible removal by

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police of three teachers who were on hunger-strike.   Permission was not granted by the Speaker.  The  petitioner, however, continued to ’disturb’ proceedings of  the House and by use of ’minimum force’, he was  removed from the House.  The Committee of Privileges  considered the conduct of the petitioner and resolved to  suspend him.  The petitioner challenged the resolution in  the High Court of Allahabad under Article 226 of the  Constitution.         Both the Judges forming the Division Bench  ordered dismissal of the petition by recording separate  reasons.  Sapru, J. conceded that withdrawal of a  member form the House even for a brief period was a  serious matter both for the member as well as for his  constituency but disciplinary or punitive action for  disorderly behaviour of a member could be taken.   Mukherji, J. took the same view.  His Lordship further  held that ’the House is the sole Judge of its own  privileges’.         In Yeshwant Rao Meghawale v. Madhya Pradesh  Legislative Assembly & Ors., AIR 1967 MP 95, the  petitioner obstructed the proceedings in the House,  jumped on the dias and assaulted the Deputy Speaker.   A motion of expulsion of the petitioner was moved and  was passed.  The petitioner challenged the action by  approaching the High Court under Article 226 of the  Constitution.         It was contended on behalf of the petitioner that the  House of Commons has the right to provide for its own  constitution and power to fill vacancies.  And it was  because of that power that it could expel a member.   Since the Legislative Assembly of M.P. had no such right,  it could not expel a member.         The Court, however, negatived the contention.  It  observed that though Indian Legislature has no right to  provide for its own composition nor for filling of vacancies  in the House, nor to try election disputes, nevertheless it  has power to expel a member for proper functioning,  protection and self-preservation.  The Court noted that as  held by the Privy Council, even Colonial Legislatures have  such power.         In my opinion, by holding so, the Division Bench  has not committed any error of law nor the observations  are inconsistent with settled legal position.         I must make mention of a Full Bench decision of the  High Court of Punjab & Haryana in Hardwari Lal v.  Election Commission of India, ILR (1977) 2 P & H 269  (FB).  The High Court was expressly and specifically  called upon to decide whether a State Legislature has  power to expel its member.  A Bench of five Judges  exhaustively considered the question in detail.  Whereas  the majority negatived such right, the minority ruled  otherwise and upheld it.  The petitioners heavily relied  upon the reasons recorded and conclusions reached by  Sandhawalia, J. (majority view). The respondents, on the  other hand, strongly adverted to observations and  considerations of Narula, CJ (minority view).  It would,  therefore, be appropriate if I deal with both the view- points.         The learned Chief Justice firstly considered the  scope and applicability of clause (3) of Article 194 [similar  to clause (3) of Article 105] of the Constitution and held  that to determine whether a particular privilege falls in  the exceptional category or not is that as soon as a  particular privilege is claimed by the Legislature and is

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disputed or contested, it must be inquired whether such  a privilege was available to the House of Commons on  January 26, 1950, and then to decide whether the said  privilege is or is not compatible or consistent with the  provisions of the Constitution.  If it is not inconsistent  with the provisions of the Constitution, it can be claimed  by the Legislature under Article 194(3).         It was, therefore, held that "whenever it is found  that the Commons did enjoy a particular privilege, power  or immunity at the relevant time, it must be deemed to  have been written with pen and ink in clause (3) of Article  194, and it is only when a dispute arises whether in the  nature of things the particular privilege or power can  actually be expressed, claimed or enjoyed that the Court  will scrutinize the matter and without deleting the same  from the list hold that notwithstanding the power or  privilege being there it cannot be exercised, either  because it is humanly impossible to do so or because the  extension of the privilege of the Commons would  contravene some express or special provision of the  Constitution".           Regarding the main question as to the right of the  Legislature to expel a member, it was admitted that  Indian Legislature had no privilege to provide for its own  composition, but it is no ground to deny the right to the  House to expel a member as a means of punishment for  misconduct.  Referring to a series of cases, it was held  that "independent of the power and privilege of the House  of Commons to constitute itself it did have and exercised  at the time of coming into force of our Constitution the  power to expel its members by way of punishment for  misconduct or for breach of privilege or for committing  contempt of the House."         The majority, on the other hand, took a contrary  view. Sandhawalia, J., considering historical development  of law as to parliamentary privileges, observed;         In the context of an unwritten  Constitution in England, the House of  Commons has undoubtedly claimed and  enjoyed the privilege of providing for and  regulating its own Constitution from the very  earliest times.  This privilege in terms and in  effect implies and includes all powers to  control the composition of the House and to  determine the identity of its membership.

       Unfortunately, however, having held so, the  majority adopted an incorrect approach thereafter.   Though this Court in Keshav Singh held that the privilege  enjoyed by the House of Commons in England in regard  to its constitution had been expressed in three ways;  namely;  (i)     by the order of new writs to fill vacancies  that arise in the Commons in the course  of a Parliament; (ii)    by the trial of controversial elections; and (iii)   by determining the questions of its  members in cases of doubt; \027the High Court (majority) added one more category  (expulsion of a member) stating that the power of  expulsion was another example (fourth category) of the  power to the House to determine its own composition.         Describing ancient English precedents as ’not only  wasteful but dangerous’, the majority concluded;         "The uncanalised power of expulsion in

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the House of Commons stems from its ancient  and peculiar privileges of determining its own  composition which in turn arises for long  historical reasons and because of the  unwritten Constitution in England."          (emphasis supplied)

With respect, the majority was not right in coming  to the aforesaid conclusion and I am unable to read legal  position as envisaged by Sandhawalia, J. In K. Anbazhagan & Ors. V. Secretary, Tamil Nadu  Legislative Assembly, Madras & Ors., AIR 1988 Mad 275,  some of the members of Tamil Nadu Legislative Assembly  were expelled for burning the Constitution considering  the conduct as unworthy of members of Legislative  Assembly.  The action was challenged in the High Court. A contention similar to one raised in Yeshwant Rao  was raised that since the Tamil Nadu Legislative  Assembly had no right to provide for its constitution or  composition, it had no right to expel a member since a  right to expel a member flows from a right to provide for  composition of the House. The Court observed that in Keshav Singh, it was  held by the Supreme Court that Indian Legislatures have  no privilege to provide for its own constitution.  But it  rightly proceeded to consider the controversy by  observing that the question was whether the power of  expulsion exercised by the House of Commons was to be  ’wholly and exclusively treated as a part of the privilege  in regard to its constitution’.  Then considering English  authorities and various other decisions on the point; the  Court held that such power was possessed by the  Legislature and was available in appropriate cases. In my judgment, the right to expel a member is  distinct, separate and independent of right to provide for  the due constitution or composition of the House and  even in absence of such power or prerogative, right of  expulsion is possessed by a Legislature (even a Colonial  Legislature), which in appropriate cases can be exercised. I am also supported in taking this view from the  discussion the Constituent Assembly had and the final  decision taken. When the provisions relating to powers, privileges  and immunities of Parliament and State Legislatures  were considered by the Constituent Assembly, conflicting  views were expressed by the Hon’ble Members.  One view  was in favour of making such provisions exhaustive by  incorporating them in the Constitution.  The other view,  however, was to include few specific and express rights in  the Constitution and to adopt the rest as were available  to House of Commons in England. The relevant discussion throws light on different  views expressed by the Members of Assembly.  On May  19, 1949, when the matter came up for consideration,  Shri Alladi Krishnaswami Ayyar stated; Shri Alladi Krishnaswami Ayyar  (Madras : General) : 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

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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 legislature  in India as at present constituted, the result  will be that a person cannot be punished for  contempt of the House.  The actual question  arose in 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 the Colonies and it has been  held that by reason of the wide wording in the  Australian Commonwealth Act as well as in  the Canadian Act the Parliament in the both  places have powers similar to the powers  possessed by the Parliament in England and  therefore have the right to punish for  contempt.  Are you going to deny to yourself  that power?  That is the question.

I will deal with the second objection.  If  you have the time and if you have the leisure  to formulate all the privileges in a  compendious form, it will be well and good. I  believe a Committee constituted by the  Speaker on the legislative side found very  difficult to formulate all the privileges, unless  they went in detail into the whole working of  parliamentary institution in England and the  time was not sufficient before the legislature  for that purpose and accordingly the  Committee was not able to give any effective  advice to the Speaker in regard to this matter.   I speak subject to correction because I was  present at one stage and was not present at a  later stage.  Under these circumstances I  submit there is absolutely to question of infra  dig. We are having the English language.  We  are having our Constitution in the English  language side by side with Hindi for the time  being.  Why object only to reference to the  privileges in England?

The other point is that there is nothing to  prevent the Parliament from setting up the  proper machinery for formulating privileges.  The article leaves wide scope for it. "In other  respects, the privileges and immunities of  members of the Houses shall be such as may  from time to time be defined by Parliament by  law and, until so defined, shall be such as are  enjoyed by the members of the House of  Commons of the Parliament of the United  Kingdom at the commencement of this  Constitution". That is all what the article says.  It does not in any way fetter your discretion.  You may enlarge the privileges, you may

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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 class (3).  This practice has been followed in  Australia, in Canada and in other Dominations  with advantage and it has secured complete  freedom of speech and also the omnipotence of  the House in every respect. Therefore we need  not fight shy of borrowing to this extent, when  we are borrowing the English language and  when we are using constitutional expressions  which are common to England. You are saying  that it will 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.  It is thus clear that when draft Article 85 (Present  Article 105) was considered, different view-points were  before the House.  It was also aware of various  Constitutions, particularly, Constitutions of Canada and  Australia.  The Members expressed their views, made  suggestions and sought amendments and finally, the  draft Article 85 was approved as amended. Likewise, when draft Article 169 (Present Article  194) came up before the House on June 3, 1949, again,  the matter was discussed at length. I would like to refer to in particular the  considerations weighed with the House in the speech of  Hon’ble the President, Dr. B.R. Ambedkar, who said; The privileges of Parliament extend, for  instance, to the rights of Parliament as against  the public. Secondly, they also extend to rights  as against the individual members. For  instance, under the House of Commons’ power  and privileges it is open to Parliament to  convict any citizen for contempt of Parliament  and when such privilege is exercised the  jurisdiction of the court is ousted. That is an  important privilege. Then again, it is open to  Parliament to take action against any individual  member of Parliament for anything that has

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been done by him which brings Parliament into  disgrace. These are very grave matters-e.g., to  commit to prison. the right to lack up a citizen  for what parliament regards as contempt of  itself is not an easy matter to define. Nor is it  easy to say what are the acts and deeds of  individual members which bring Parliament  into disrepute.                          (emphasis supplied)         He further stated;  Let me proceed. It is not easy, as I said,  to define what are the acts and deeds which  may be deemed to bring Parliament into  disgrace. That would require a considerable  amount of discussion and examination. That is  one reason why we did not think of  enumerating, these privileges and immunities.  But there is not the slightest doubt in 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. 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 of May’s Parliamentary  Practice and I have noticed that practically 8  or 9 columns of the index are devoted to the  privileges and immunities of Parliament. So  that if you were to enact a complete code of the  privileges and immunities of Parliament based  upon what May has to say on this subject, I  have not the least doubt in my mind that we  will have to add not less than twenty or  twenty-five pages relating to immunities and  privileges 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 could have said  that Parliament may define the privileges and  immunities of the members and of the body

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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 possess no privilege and no  immunity. Therefore we could not resort to  that course.  The third course open to us was the one  which we have followed, namely, that the  privileges of Parliament shall be the privileges  of the House of Commons. It seems to me that  except of the sentimental objection to the  reference to the House of Commons I cannot  see that there is any substance in the  argument that has been advanced against the  course adopted by the Drafting Committee. I  therefore suggest that the article has adopted  the only possible way of doing it and there is  no other alternative way open to us. That being  so, I suggest that this article be adopted in the  way in which we have drafted it.  Thereafter the House decided to approve the  provision relating to powers, privileges and immunities of  State Legislatures. The aforesaid discussion clearly and unequivocally  indicates that the Members of the Constitution wanted  Parliament (and State Legislatures) to retain power and  privileges to take appropriate action against any  individual member for ’anything that has been done by  him’ which may bring Parliament or Legislative Assembly  into ’disgrace’.  In my opinion, therefore, it cannot be said  that the Founding Fathers of the Constitution were not  aware or never intended to deal with individual misdeeds  of members and no action can be taken by the  Legislature under Article 105 or 194 of the Constitution. An authority on the ’Constitutional Law of India’,  (H.M. Seervai) pithily puts this principle in one sentence; "It is clear, therefore, that the privileges of  the British House of Commons were not  conferred on the Indian Legislatures in a fit of  absent mindedness".      (emphasis supplied)

(Constitutional Law of India; Third Edn.; Vol. II;  para 20-36)

ORDER OF EXPULSION AND JUDICIAL REVIEW         The history of relationship between Parliament and  Courts at Westminister is also marked with conflict and  controversy.         Sir Erskine May rightly comments; "After some  three and a half centuries, the boundary between the  competence of the law courts and the jurisdiction of the  either House in matters of privilege is still not entirely  determined".         According to the learned author, the earliest  conflicts between Parliament and the Courts were about  the relationship between the lex parliamenti and the

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common law of England.  Both Houses argued that under  the former, they alone were the judges of the extent and  application of their own privileges, not examinable by any  court or subject to any appeal. The courts, on the other  hand, professed judicial ignorance of the lex parliamenti.   After some time, however, they recognized it, but as a  part of the Law of England and, therefore, wholly within  the judicial notice.         In the middle of the nineteenth century, the conflict,  to the large extent, had been resolved.  Out of both the  claims, (i) whether a privilege existed; and (ii) whether it  had been breached, Parliament yielded the first to the  courts.  In turn, courts recognized right of the House to  the second.         The question was also considered by Anson (’The  Law and Custom of the Constitution’, Fifth Edition; Vol. I;  pp. 190-99).  The learned author considered the causes  of conflict between Houses and Courts.  He noted that  the House had asserted that ’it is the sole judge of the  extent of its privileges’ and the Court had no jurisdiction  in the matter.  Courts, on the other hand, took the stand  that ’when privilege conflicts with rights which they have  it in charge of maintain, they will consider whether the  alleged privilege is authentic, and whether it governs the  case before them’.         Then referring to three leading cases, (i)      Ashby v.  White, (1704) 14 St Tr 695; (ii)        Stockdale v. Hansard,  (1839) 9 Ad & E 1 : 112 ER 1112; and (iii)      Bradlaugh v.  Gossett, (1884) 12 QBD 271 : 53 LJQB 200\027the author  concluded;         On the whole, it seems now to be clearly  settled that the Courts will not be deterred  from upholding private rights by the fact that  questions of parliamentary privilege are  involved in their maintenance; and that, except  as regards the internal regulation of its  proceedings by the House, Courts of Law will  not hesitate to inquire into alleged privilege, as  they would into custom, and determine its  extent and application.

       In Halsbury’s Laws of England, (4th Edition,  Reissue, Vol. 34; pp. 553-54; paras 1004-05), it has been  stated;  1004.  The position of the courts of law.  Each  House of Parliament has traditionally claimed  to be the sole and exclusive judge of its own  privilege and of the extent of that privilege.   The courts of law accept the existence of  privileges essential to the discharge of the  functions of the two Houses.  In 1939, all the  privileges required for the energetic discharge  of the Commons’ trust were conceded by the  court without a murmur or doubt; and over  150 years later, the Privy Council confirmed  that the courts will not allow any challenge to  be made to what is said or done within the  walls of Parliament in performance of its  legislative functions and protection of its  established privileges.  On the other hand, the  courts take the view that it is for them to  determine whether a parliamentary claim to  privilege in a particular case falls within that  area where what is claimed is necessary to the  discharge of parliamentary functions or

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internal to one or other of the Houses, in  which case parliamentary jurisdiction is  exclusive, or whether it falls outside that area,  especially if the rights of third parties are  involved, where the courts would expect to  form their own judgments.

1005.   Limits of agreement regarding  jurisdiction.  In spite of the dualism of  jurisdiction between the Houses of Parliament  and the courts of law, the current measure of  agreement on the respective spheres of the two  Houses and the courts has, since the mid- nineteenth century, prevented the direct  conflicts of earlier years.                  Although the Houses have never directly  admitted the claim of the courts of law to  adjudicate on matters of privilege, they appear  to recognize that neither House is by itself  entitled to claim the supremacy which was  enjoyed by the undivided High Court of  Parliament.

       For their part the courts of law  acknowledge that the control of each House  over its own proceedings is absolute and not  subject to judicial jurisdiction; and the courts  will not interfere with the interpretation of a  statute by either House so far as the  proceedings of the House are concerned.   Neither will the courts inquire into the reasons  for which a person has been adjudged guilty of  contempt and committed by either House,  when the order or warrant upon which he has  been arrested does not state the causes of his  arrest; for in such cases it is presumed that  the order or warrant has been duly issued  unless the contrary appears upon the face of  it.  

Holdsworth, in ’A History of English Law’ (Vol. I; pp.  393-94) rightly observed;         There are two maxims or principles which  govern this subject.  The first tells us that  "Privilege of Parliament is part of the law of the  land;" the second that "Each House is the  judge of its own privileges."  Now at first sight  it may seem that these maxims are  contradictory.  If privilege of Parliament is part  of the law of the land its meaning and extent  must be interpreted by the courts, just like  any other part of the law; and therefore neither  House can add to its privileges by its own  resolution, any more than it can add to any  other part of the law by such a resolution.  On  the other hand if it is true that each House is  the sole judge of its own privileges, it might  seem that each House was the sole judge as to  whether or no it had got a privilege, and so  could add to its privileges by its own  resolution.  This apparent contradiction is  solved if the proper application of these two  maxims is attended to.  The first maxim  applies to cases like Ashby v. White; (1704) 14

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St Tr 695 and Stockdale v. Hansard; (1839) 9  Ad & E 1 : 112 ER 1112 in which the question  at issue was the existence of a privilege  claimed by the House.  This is a matter of law  which the courts must decide, without paying  any attention to a resolution of the House on  the subject.  The second maxim applies to  cases like that of the Sheriff of Middlesex;  (1840) 11 Ad & E 273 : 113 ER 419 and  Bradlaugh v. Gosset; (1884) 12 QBD 271 : 53  LJQB 200, in which an attempt was made to  question, not the existence, but the mode of  user of an undoubted privilege.  On this matter  the courts will not interfere because each  House is the sole judge of the question  whether, when, or how it will use one of its  undoubted privileges.

       We have a written Constitution which confers power  of judicial review on this Court and on all High Courts.   In exercising power and discharging duty assigned by the  Constitution, this Court has to play the role of a ’sentinel  on the qui vive’ and it is the solemn duty of this Court to  protect the fundamental rights guaranteed by Part III of  the Constitution zealously and vigilantly.         It may be stated that initially it was contended by  the respondents that this Court has no power to consider  a complaint against any action taken by Parliament and  no such complaint can ever be entertained by the Court.   Mr. Gopal Subramaniam, appearing for the Attorney  General, however, at a later stage conceded (and I may  say, rightly) the jurisdiction of this Court to consider  such complaint, but submitted that the Court must  always keep in mind the fact that the power has been  exercised by a co-ordinate organ of the State which has  the jurisdiction to regulate its own proceedings within the  four walls of the House.  Unless, therefore, this Court is  convinced that the action of the House is  unconstitutional or wholly unlawful, it may not exercise  its extraordinary jurisdiction by re-appreciating the  evidence and material before Parliament and substitute  its own conclusions for the conclusions arrived at by the  House.         In my opinion, the submission is well-founded.   This Court cannot be oblivious or unmindful of the fact  that the Legislature is one of three organs of the State  and is exercising powers under the same Constitution  under which this Court is exercising the power of judicial  review.  It is, therefore, the duty of this Court to ensure  that there is no abuse or misuse of power by the  Legislature without overlooking another equally  important consideration that the Court is not a superior  organ or an appellate forum over the other constitutional  functionary.  This Court, therefore, should exercise its  power of judicial review with utmost care, caution and  circumspection.         The principle has been succinctly stated by Sir John  Donaldson, M.R. in R. v. Her Majesty’s Treasury, ex parte  Smedley, 1985 QB 657, 666 thus;         It \005behoves the courts to be ever  sensitive to the paramount need to refrain  from trespassing on the province of Parliament  or, so far as this can be avoided, even  appearing to do so.                   (emphasis supplied)

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INDIAN PARLIAMENT HAS NO DUAL CAPACITY         It was also urged that Indian Parliament is one of  the three components of the State and it does not have a  ’dual capacity’ like the British Parliament which is not  only ’Parliament’, i.e. legislative body, pure and simple,  but also ’the High Court of Parliament’.  Since Indian  Parliament is not a ’Court of Record’, it has no power,  authority or jurisdiction to award or inflict punishment  for Contempt of Court nor it can be contended that such  action is beyond judicial scrutiny.         In this connection, I may only observe that in  Searchlight as well as in Keshav Singh, it has been  observed that there is no doubt that Parliament/State  Legislature has power to punish for contempt, which has  been reiterated in other cases also, for instance, in State  of Karnataka v. Union of India, (1977) 4 SCC 608, and in  P. V. Narasimha Rao v. State, (1998) 4 SCC 626. But what  has been held is that such decision of Parliament/State  Legislature is not ’final and conclusive’.  This Court in all  earlier cases held that in view of power of judicial review  under Articles 32 and 226 of the Constitution, the  Supreme Court and High Courts have jurisdiction to  decide legality or otherwise of the action taken by State- authorities and that power cannot be taken away from  judiciary.  There lies the distinction between British  Parliament and Indian Parliament.  Since British  Parliament is also ’the High Court of Parliament’, the  action taken or decision rendered by it is not open to  challenge in any court of law.  This, in my opinion, is  based on the doctrine that there cannot be two parallel  courts, i.e. Crown’s Court and also a Court of Parliament  (’the High Court of Parliament’) exercising judicial power  in respect of one and the same jurisdiction.  India is a  democratic and republican State having a written  Constitution which is supreme and no organ of the State  (Legislature, Executive or Judiciary) can claim  sovereignty or supremacy over the other.  Under the said  Constitution, power of judicial review has been conferred  on higher judiciary (Supreme Court and High Courts).   The said power is held to be one of the ’basic features’ of  the Constitution and, as such, it cannot be taken away  by Parliament, even by an amendment in the  Constitution.  [Vide Sambamurthy v. State of A.P., (1987)  1 SCC 362 : AIR 1987 SC 663; Kesavananda Bharti v.  State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461;  Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 :  AIR 1975 SC 2299; Minerva Mills Ltd. V. Union of India,  (1980) 3 SCC 625 : AIR 1980 SC 1789; L. Chandra  Kumar v. Union of India, (1987) 1 SCC 124 : (1987) 1  SCC 124 : (1987) 1 SCR 435, Kihoto Hollohon v.  Zachilhu, 1992 Supp (2) SCC 651 : AIR 1993 SC 412].         It has, therefore, been held in several cases that an  action of Parliament/State Legislature cannot claim ’total  immunity’ from judicial review.  In fact, this argument  had been put forward in Keshav Singh which was  negatived by this Court.  It was opined that an aggrieved  party may invoke the jurisdiction of the High Court under  Article 226 or of the Supreme Court under Article 32 of  the Constitution.  That, however, does not mean that  while exercising extraordinary jurisdiction under the  Constitution, the powers of the courts are absolute,  unlimited or unfettered.  The Constitution which  conferred power of judicial review on the Supreme Court  and High Courts, with the same pen and ink provided  that the validity of proceedings in Parliament cannot be

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called in question on the ground of ’irregularity in  procedure’.  It is, therefore, the duty of this Court to give  effect to the said provision and keeping in view the  limitation, exercise the power of judicial review.         Moreover, in the instant cases, the Court is called  upon to answer a limited question whether Parliament  can expel a member.  As I have already discussed in  earlier part of this judgment, even a Colonial Legislature  having limited privileges possesses the power to expel a  member if his conduct is found to be not befitting a  member of Legislature.  If it is so, in my opinion, it goes  without saying that Indian Parliament, which has  undoubtedly much more powers than a Colonial  Legislature, can take such action and it cannot be  successfully contended that Parliament does not possess  the power to expel a member.  I am, therefore, unable to  uphold the argument of the petitioners.

DISQUALIFICATION AND EXPULSION         The petitioners also submitted that the law relating  to disqualification and vacation of seats has been laid  down in Articles 101 to 104 (and 190-93) read with  Schedule X to the Constitution and of the Representation  of the People Act, 1951. Those provisions are ’full and  complete’. In other words, they are in the nature of  ’complete Code’ as to disqualification of membership and  vacation of seats covering the field in its entirety. No  power of expulsion de hors the above provisions exists or  is available to any court or authority including  Parliament. The action of Parliament, hence, is without  jurisdiction and is liable to be set aside.         I am unable to uphold the contention. As already  discussed earlier, every legislative body\027Colonial or  Supreme\027possesses power to regulate its proceedings,  power of self-protection, self-preservation and  maintenance of discipline. It is totally different and  distinct from the power to provide the constitution or  composition which undoubtedly not possessed by Indian  Parliament. But every legislative body has power to  regulate its proceedings and observance of discipline by  its members. In exercise of that power, it can suspend a  member as also expel him, if the circumstances warrant  or call for such action. It has nothing to do with  disqualification and/or vacation of seat. In fact, a  question of expulsion arises when a member is not  disqualified, his seat has not become vacant and but for  such expulsion, he is entitled to act as a member of  Parliament.

PARLIAMENT HAS NO CARTE BLANCHE POWER         The counsel for the petitioners submitted that every  power has its limitations and power conferred on  Parliament is not an exception to this rule. It has,  therefore, no absolute right to take any action or make  any order it likes. It was stated that this Court has  accepted this principle in several cases by observing that  absolute power is possible ’only in the moon’ [vide  Ahmedabad St. Xavier’s College Society & Anr. V. State of  Gujarat & Anr., [(1975) 1 SCR 173 : (1974) 1 SCC 717 :  AIR 1974 SC 1389]. I admit my inability to express any  opinion on the larger issue. But I have no doubt and I  hold that Parliaemnt, like the other organs of the State, is  subject to the provisions of the Constitution and is  expected, nay, bound to exercise its powers in  consonance with the provisions of the Constitution. But I

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am unable to hold that the power to expel a member is a  carte blanche  in nature and Palriament has no authority  to expel any member. In my view, Parliament can take  appropriate action against erring members by imposing  appropriate punishments or penalties and expulsion is  one of them.  I may, however, hasten to add that under  our Constitution, every action of every authority is  subject to law as nobody is above law. Parliament is not  an exception to this ’universal’ rule. It is, therefore, open  to an aggrieved party to approach this Court raising  grievance against the action of Parliament and if the  Court is satisfied within the limited parameters of judicial  review that the action is unwarranted, unlawful or  unconstitutional, it can set aside the action. But it is not  because Parliament has no power to expel a member but  the action was not found to be in consonance with law.

PROCEDURAL IRREGULARITY : EFFECT         It was then contended that the impugned actions  taken by Lok Sabha and Rajya Sabha are illegal and  unconstitutional. It was stated that the immunity  granted by clause (1) of Article 122 of the Constitution  (’Courts not to inquire into proceedings of Parliament’)  has been made expressly limited to ’irregularity of  procedure’ and not to substantive illegality or  unconstitutionality. If the action taken or order passed is  ex facie illegal, unlawful or unconstitutional, Parliament  cannot take shelter under Article 122 and prevent  judicial scrutiny thereof. Neither ad hoc Committees have  been contemplated by the Constitution nor such  committees have power to inquire into conduct or  misconduct of Members of Parliament. All proceedings,  therefore, have no legal foundation. They were without  jurisdiction or lawful basis and are liable to be ignored  altogether.         In this connection, the attention of the Court was  invited to Constituent Assembly Debates when draft  Article 101 (present Article 122) was discussed. Mr.  Kamath suggested an amendment in clause (1) of Article  101 by inserting the words "in any court" after the words  "called in question".          Dealing with the amendment and jurisdiction of   Courts, Dr. B.R. Ambedkar stated (CAD : Vol.VIII; pp.  199-201);         With regard to the amendment of Mr.  Kamath, I do not think it necessary, because  where can the proceedings of Parliament be  questioned in a legal manner except in a Court?  Therefore, the only place where the  proceedings of Parliament can be questioned in  a legal manner and legal sanction obtained is  the Court.                               (emphasis supplied)

       Reference was also made to Pandit M.S.M. Sharma v.  Shree Krishna Sinha & Ors. (Pandit Sharma II); (1961) 1  SCR 96 : AIR 1960 SC 1186, wherein a Bench of eight  Hon’ble Judges of this Court held that "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".         In Keshav Singh also, this Court reiterated the  above proposition of law and stated; Art. 212(1) makes a provision which is   relevant. It  lays  down that the validity of any  proceedings  in  the Legislature  of a State

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shall not be called in  question  on the  ground  of any alleged irregularity of procedure. Art.  212(2) confers immunity on the officers and  members of the Legislature  in   whom  powers  are vested  by  or  under the Constitution  for   regulating procedure or the conduct  of  business, or for maintaining order, in the  Legislature from being subject to the  jurisdiction of any court in respect of the  exercise by him of those powers.  Art. 212(1)  seems to make it possible for a citizen to call in   question in  the         appropriate  court of law  the   validity  of     any proceedings inside the  legislative chamber if his  case  is that the said  proceedings suffer not from mere irregularity  of  procedure,  but  from an illegality.   If  the   impugned procedure is illegal and  unconstitutional, it would be open to be  scrutinised in a court of law, though such  scrutiny is prohibited if the complaint against  the procedure is no more than  this that the  procedure was irregular.    (emphasis supplied)

       [See also Kihoto Hollohan v. Zachillhu & Ors., 1992  Supp (2) SCC 651, 711].         The learned counsel for the respondents have, in my  opinion, rightly not disputed the above statement of law  made in the larger Bench decisions of this Court. They,  however, stated that a Committee was appointed by  Parliament, which went into the allegations against the  petitioners. Adequate opportunity had been afforded to  the members and after considering the relevant material  placed before it, a decision was taken holding them  guilty. The said action was approved by the House and as  such, the law laid down in the above decisions has no  application to the fact-situation and no grievance can be  made against it.         In my view, the submission of the respondents  deserves acceptance. Taking into account serious  allegations against some of the members of the House,  Parliament decided to inquire into correctness or  otherwise of the charges by constituting an ’Inquiry  Committee’. The members were asked to offer their  explanation and considering the evidence and material  on record, the Committee appointed by Parliament  decided the matter. It, therefore, cannot be said that the  case is covered by exceptional part of clause (1) of Article  122. It cannot be overlooked that this Court is exercising  power of ’judicial review’, which by its nature limited to  serious infirmities of law or patent illegalities. It cannot,  therefore, enter into sufficiency of material before the  authority nor can substitute its own opinion/finding/  decision for the opinion/finding/decision arrived at by  such authority. Hence, even if there is any irregularity in  adopting the procedure or in appreciating evidence by the  Committee or in approving the decision by Parliament, it  squarely falls under the ’protective umbrella’ of Article  122(1) of the Constitution and this Court cannot interfere  with the decision in view of the constitutional protection  granted by the said provision.         Neither the Committee appointed by Parliament can  be said to be a ’Court’ stricto sensu, nor it is bound by  technical rules of evidence or procedure. It is more in the  nature of ’fact-finding’ inquiry. Since the dignity,  decorum and credibility of Parliament was at stake, the

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Committee was appointed which was required to act with  a view to restore public faith, confidence and honour in  this august body without being inhibited by procedural  impediments.         In this connection, it is profitable to refer to Mudgal.  In that case also, a Committee was appointed to inquire  into charges leveled against a member of Parliament.  Certain directives were issued to the Committee.  Directive No.2 issued by the Speaker was relevant and  read thus; "The Committee on the Conduct of a Member  that has been constituted is a Court of Honour  and not a Court of Law in the strict sense of the  term. It is therefore not bound by technical  rules. It has to mould its procedure so as to  satisfy the ends of justice and ascertain the  true facts of the case. In Courts of Law,  excessive cross-examination eventually turns  into a battle of wits and that should not be the  atmosphere of a Court of Honour. Here the  effort should be to simplify the procedure and  to lay down clear rules which ensure  ascertainment of Truth, fairplay and justice to  all concerned. I am, therefore, of opinion that  normally the questions should be put by the  Chairman and the Members but that does not  mean that the counsel appearing in the case is  debarred from putting any questions  whatsoever. It is open to the Committee in the  light of particular circumstances, of which they  alone are the best judges, to permit the  counsel to put questions to a witness with the  permission of the Chairman. I feel that this  should meet the requirements of the present  case." (emphasis supplied)

OBSERVANCE OF NATURAL JUSTICE

       It was also urged that the Committee had not given  sufficient opportunity to the petitioners to defend them  and had not complied with the principles of natural  justice and fair play. It was submitted that the doctrine of  natural justice is not merely a matter of procedure but of  substance and any action taken in contravention of  natural justice is violative of fundamental rights  guaranteed by Articles 14, 19 and 21 of the Constitution.  Reference in this connection was made to Maneka  Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC  597; Kihoto Holohan and other decisions.         So far as principle of law is concerned, it is well- settled and cannot be disputed and is not challenged. In  my opinion, however, in the facts of the case, it cannot  successfully be contended that there is breach or non- observance of natural justice by the Committee. Reading  of the Reports makes it clear that adequate opportunity  had been afforded to the petitioners and thereafter the  action was taken. Notices were issued to the members,  CDs were supplied to them, evidence of witnesses was  recorded, defence version was considered and ’findings  and conclusions’ were reached.         So far as the Committee constituted by the Lok  Sabha is concerned, it stated; IV. Findings and Conclusions

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       32. The Committee viewed the VCDs  comprising the relevant video footage aired on  the ’Aaj Tak’ TV Channel on 12 December,  2005, perused the transcripts thereof,  considered the written statements submitted  by each of the said ten members and their oral  evidence and also the oral evidence of Shri  Aniruddha Bahal, Kumar Badal and Ms.  Sushasini Raj of Cobrapost.Com who  conducted the ’Operation Duryodhan’.

       33. The Committee note that the  concerned representatives of the Portal  Cobrapost.Com namely Shri Aniruddha Bahal,  Ms. Suhasini Raj and Shri Kumar Badal  approached the members posing as  representatives of a fictitious company,  through a number of middlemen, some of  whom were also working as Private  Secretaries/Personal Assistants of the  members concerned. They requested the  members to raise questions in Lok Sabha and  offered them money as a consideration thereof.  Money was accepted by the members directly  and also through their Private Secretaries.  They deposed on oath that in the money  sequences shown on TV Channel Aaj Tak there  was no misrepresentation. They have also  given to the Committee the raw footage  covering the situation before and after the  scene in question. While the Aaj Tak clippings  have gone through video cleaning and sound  enhancement, corresponding thereto are  extended versions of unedited raw footage of  the tapes to make it apparent that nothing had  been misrepresented. Besides this Shri  Aniruddha Bahal also submitted the "Original  tapes of money acceptance of whatever length  the incident it may be". There are 20-25 tapes  and the total footage pertains to money  acceptance. Each tape is a complete tape  showing the whole incident. In the course of  her evidence Ms. Suhasini Raj has given the  details of the money given to the MPs directly  as also through the middlemen.

       34. As against this evidence are the  statements of all the said ten members. The  Committee note that all the members have  denied the allegations leveled against them.  The common strain in their testimony is that  the clippings are morphed, out of context and  a result of ’cut and paste’. The clippings of a  few minutes, they averred, do not present full  picture and they needed full tapes including  the preceding and succeeding scenes to prove  what they termed as the falsehood thereof.  They claimed that the entire exercise was  aimed to trap them and lower the prestige of  the Parliament.

       35. The Committee have given serious  consideration to the requests made by the said  members for being provided the full footage of  video recordings, all the audio tapes and their

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request for extension of time and being allowed  to be represented through their counsels.

       In this context the Committee would like  to bring it on record that all the ten members  while deposing before the Committee were  asked whether they would like to view the  relevant video footage so that they could point  out the discrepancies therein if any. All the  members, refused to view the relevant video  footage. The Committee, therefore, feel that the  requests by the members for unedited and  entire video footage would only lead to delaying  the consideration of the matter and serve no  useful purpose.

       36. The Committee having given in-depth  consideration to the evidence and statements  of the representatives of Cobrapost.com and  the members, are of the view that the evidence  against the members is incriminating. The  Committee note that the Cobrapost.com  representatives gave their statement on oath  and would be aware of the consequences of  making any false or incorrect statement. They  have also supplied the unedited copies of  original video situations where money changed  hands. Transcripts of the said videos have also  been supplied. Had the Cobrapost.com been  reluctant in supplying the original unedited  video tapes there could have been scope for  some adverse inference about the authenticity  of the "money sequences" as telecast by Aaj  Tak. But that is not so.

       37. The Committee are also of the view  that the plea put forth by the said ten  members that the video footages are  doctored/morphed/edited has no merit. If the  members had accepted the offer of the  Committee to view the relevant footage and  pointed out the interpolated portions in the  tape, there would have been justification for  allowing their plea for more time for   examining the whole tapes. Having seen the  unedited raw footage of the Cobrapost.com  pertaining to some of the members, the  Committee have no valid reason to doubt the  authenticity of the video footages.

       38. In view of the totality of the facts and  circumstances of the case, the Committee are  of the opinion that the allegations of accepting  money by the said ten members have been  established. The Committee further note that it  is difficult to escape the conclusion that  accepting money had a direct connection with  the work in Parliament.

       39. The Committee feel that such conduct  of the said members was unbecoming of  members of Parliament and also unethical.  The Committee are, therefore, of the view that  their conduct calls for strict action.

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       40. The Committee feel that stern action  also needs to be taken against the middlemen,  touts and persons masquerading as Private  Secretaries of members since they are  primarily responsible for inducing members to  indulge in such activities.         41. The Committee note that in the case  of misconduct or contempts committed by its  members, the House can impose these  punishments: admonition, reprimand,  withdrawal from the House, suspension from  the service of the House, imprisonment, and  expulsion from the House.

The Committee, according to me, rightly made the  following observations; V. Observations

       42. The Committee feel that credibility of  a democratic institution like Parliament and  impeccable integrity of its members are  imperative for the success of any democracy.  In order to maintain the highest traditions in  parliamentary life, members of Parliament are  expected to observe a certain standard of  conduct, both inside the House as well as  outside it. It is well recognised that conduct of  members should not be contrary to the Rules  or derogatory to the dignity of the House or in  any way inconsistent with the standards which  Parliament is entitled to expect of its members.

       43. The Committee wish to emphasise  that ensuring probity and standards in public  life is sine qua non for carrying credibility with  the public apart from its own intrinsic  importance. The waning confidence of the  people in their elected representatives can be  restored through prompt action alone.  Continuous fight against corruption is  necessary for preserving the dignity of the  country. The beginning has to be made with  holders of high public offices as the system is,  and ought to be, based on morality. When the  Committee say so, they are also aware of and  wish to put on record that a large number of  leaders spend their life time in self-less service  to the public.

       44. The Committee find it pertinent to  note the following observations made by the  Committee of Privileges of Eleventh Lok Sabha  in their Report on ’Ethics, Standards in Public  Life, Privileges, Facilities to members and  related matters’:

       "Voicing the constituents’ concerns on  the floor of the House is the primary  parliamentary duty of an elected  representative. Any attempt to influence  members by improper means in their  parliamentary conduct is a breach of  privilege. Thus, offering to a member a  bribe or payment to influence him in his  conduct as a member, or any fee or

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reward in connection with the promotion  of or opposition to, any Bill, resolution,  matter or things submitted or intended to  be submitted to the House or any  Committee thereof, should be treated as a  breach of Code of Conduct. Further, any  offer of money, whether for payment to an  association to which a member belongs or  to a charity, conditional on the member  taking up a case or bringing it to a  successful conclusion, is objectionable.  Offer of money or other advantage to a  member in order to induce him to take up  an issue with a Minister may also  constitute a breach of Code. Similarly,  acceptance of inducements and  gratification by members for putting  questions in the House or for promotion  of or opposition to any Bill, resolution or  matters submitted to the House or any  Committee thereof involves the privileges  and contempt proceedings.

       The privilege implications apart, the  Committee is constrained to observe that  such attempts and acts are basically  unethical in nature."

       45. The Committee are, therefore, deeply  distressed over acceptance of money by  members for raising parliamentary questions in  the House, because it is by such actions that  the credibility of Parliament as an institution  and a pillar of our democracy is eroded. (emphasis supplied)

       The Committee accordingly recommended (by  majority of 4 : 1) expulsion of all the ten members from  the membership of Lok Sabha.         The recommendation was accepted by the House  and consequential notification was issued on December  23, 2005 expelling all the members from Lok Sabha with  effect from afternoon of December 23, 2005.         So far as Rajya Sabha is concerned, the Committee  on Ethics recorded a similar finding and observed that it  was convinced that the member had accepted money for  tabling questions in Rajya Sabha and the pleas raised by  him in defence were not well-founded.         The Committee rightly stated;         Parliamentary functioning is the very  basis of our democratic structure upon which  the whole constitutional system rests.  Anything, therefore, that brings the institution  of parliament into disrepute is extremely  unfortunate because it erodes public  confidence in the credibility of the institution  and thereby weaken the grand edifice of our  democratic polity.

The Committee then observed;

       The Committee has applied its mind to  the whole unfortunate incident, gave full  opportunity to the Member concerned to make  submissions in his defence and has also

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closely examined witnesses from  Cobrapost.Com and Aaj Tak. The Committee  has also viewed the video tapes and heard the  audio transcripts more than once. After taking  all factors into consideration, the  overwhelming and clinching evidence that the  member has, in fact, contravened para 5 of the  code of conduct for members of the Rajya  Sabha and having considered the whole matter  in depth, the committee, with great sadness,  has come to the conclusion that the member  has acted in a manner which has seriously  impaired the dignity of the house and brought  the whole institution of parliamentary  democracy into disrepute. The Committee  therefore recommend that Dr. Chhattrapal  Singh Lodha be expelled from the membership  of the House as his conduct is derogatory to  the dignity of the House and inconsistent with  the code of conduct which has been adopted  by the House.

The Committee thus recommended expulsion of Dr.  Lodha. One member of the Committee suggested   (clarifying that it was not a ’dissent note’), to seek opinion  of this Court under Article 143(1) of the Constitution. The House agreed with the recommendation and  expelled Dr. Lodha. A notification was issued on  December 23, 2005 notifying that Dr. Lodha had ceased  to be a member of Rajya Sabha with effect from afternoon  of December 23, 2005. ISSUE : WHETHER PRE-JUDGED         One of the grievances of the petitioners is that the  issue had already been pre-judged even before a  Committee was appointed by Parliament. In support of  the said complaint, the counsel drew the attention of the  Court to a statement by the Hon’ble Speaker of Lok  Sabha on December 12, 2005; "No body would be spared".         An attempt was made that the Hon’ble Speaker,  even before the constitution of Committee had  proclaimed that the petitioners would not be spared.  Appointment of Committee, consideration of allegations  and recording of findings were, therefore, in the nature of  an ’empty formality’ to ’approve’ the tentative decision  taken by the Hon’ble Speaker and for that reason also,  the action is liable to be interfered with by this Court.         In my opinion, the contention has no force. The  petitioners are not fair to the Hon’ble Speaker. They have  taken out one sentence from the speech of Hon’ble  Speaker of Lok Sabha and sought to create an impression  as if the matter had already been decided on the day one.  It was not so. The entire speech wherein the above  sentence appears is part of the Report of the Committee  and is on record. It reads thus; "Hon. Members, certain very serious events  have come to my notice as also of many other  hon. Members. It will be looked into with all  importance it deserves. I have already spoken  to and discussed with all Hon. Leaders of  different Parties, including the Hon. Leader of  the Opposition and all have agreed that the  matter is extremely serious if proved to be  correct. I shall certainly ask the hon. Members  to explain what has happened. In the

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meantime, I am making a personal request to  all of them ’please do not attend the Session of  the House until the matter is looked into and a  decision is taken’\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  respnd to it in a manner which behoves as.  Thank you very much." (emphasis supplied)      It is thus clear that what was stated by the Hon’ble  Speaker was that "if anybody is guilty, he would be  punished. Nobody would be spared". In other words, an  assurance was given by the Hon’ble Speaker to the  members of august body that an appropriate action will  be taken without considering the position or status of an  individual member and if he is found guilty, he will not  be spared. The statement, in my judgment, is a  responsible one, expected of the Hon’ble Speaker of an  august body of the largest democracy. I, therefore, see  nothing in the above statement from which it can be  concluded that the issue had already been decided even  before the Committee was constituted and principles of  natural justice were violated. CASH FOR QUERY : WHETHER MERE MORAL WRONG         It was also urged that taking on its face value, the  allegations against the petitioners were that they had  accepted money for tabling of questions in Parliament.  Nothing had been done within the four walls of the  House. At the most, therefore, it was a ’moral wrong’ but  cannot fall within the mischief of ’legal wrong’ so as to  empower the House to take any action. According to the  petitioners, ’moral obligations’ can neither be converted  into ’constitutional obligations’ nor non-observance  thereof would violate the scheme of the Constitution. No  action, therefore, can be taken even if it is held that the  allegations were well-founded.         I am unable to uphold the contention. It is true that  Indian Parliament is not a ’Court’. It cannot try anyone or  any case directly, as a court of justice can, but it can  certainly take up such cases by invoking its jurisdiction  concerning powers and privileges.         Dealing with ’Corruption or impropriety’, Sir Erskine  May stated; "The acceptance by a Member of either House  of a bribe to influence him in his conduct as a  Member, or of any fee, compensation or reward  in connection with the promotion of or  opposition to any bill, resolution, matter or  thing submitted or intended to be submitted to  either House, or to a committee, is a contempt.  Any person who is found to have offered such  a corrupt consideration is also in contempt. A  transaction of this character is both a gross  affront to the dignity of the House concerned  and an attempt to pervert the parliamentary  process implicit in Members’ free discharge of  their duties to the House and (in the case of  the Commons) to the electorate".

Hilaire Burnett, (’Constitutional and Administrative  Law’, Fourth Edn.; pp.571-72) also refers to "Cash for

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questions", which started in 1993. It was alleged that two  members of Parliament, Tim Smith and Neil Hamilton  received payments/gifts in exchange for tabling  parliamentary questions. Both of them had ultimately  resigned. The rapidly accelerating and intensifying  atmosphere of suspected corruption-sleaze-in public life  caused the Prime Minister to appoint a judicial inquiry  into standards of conduct in public life. The author also observed; "The cash for questions  affair also raises issues concerning the press". The Committee went into the allegations against the  officers of Parliament and recommended punishment. It  criticized the role of the Press as well, but no action had  been taken against the newspaper.         Solomon Commission and Nolan Committee also  considered the problem of corruption and bribery  prevailing in the system and made certain suggestions  and recommendations including a recommendation to  clarify the legal position as to trial of such cases.         I may state that I am not expressing any opinion  one way or the other on the criminal trial of such acts as  also the correctness or otherwise of the law laid down in  P.V. Narsimha Rao. To me, however, there is no doubt  and it is well-settled that in such cases, Parliament has  power to take up the matter so far as privileges are  concerned and it can take an appropriate action in  accordance with law. If it feels that the case of ’Cash for  query’ was made out and it adversely affected honesty,  integrity and dignity of the House, it is open to the House  to attempt to ensure restoration of faith in one of the  pillars of democratic polity.         I am in agreement what has been stated by Mc  Lachlin, J. (as she then was) in Fred Harvey, already  referred to; "If democracies are to survive, they must insist  upon the integrity of those who seek and hold  public office. They cannot tolerate corrupt  practices within the legislature. Nor can they  tolerate electoral fraud. If they do, two  consequences are apt to result. First, the  functioning of the legislature may be impaired.  Second, public confidence in the legislature  and the government may be undermined. No  democracy can afford either". (emphasis supplied)

DOCTRINE OF PROPORTIONALITY         It was contended that expulsion of a member of  Parliament is a drastic step and even if the House  possesses such power, it cannot be lightly restored to. It  is against the well established principle of  proportionality. According to the petitioners, such a step  would do more harm to the constituency than to the  member in his personal capacity. It was, therefore,  submitted that proper exercise of power for misbehaviour  of a member is to suspend him for the rest of the day, or  at the most, for the remaining period of the session. If a  folly has been committed by some members, the  punishment may be awarded to them but it must be  commensurate with such act which should not be severe,  too harsh or unreasonably excessive, depriving the  constituency having its representation in the House.         Now, it cannot be gainsaid that expulsion of a  member is a grave measure and normally, it should not

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be taken. I also concede that Palriament could have  taken a lenient view as suggested by the learned counsel  for the petitioners. But it cannot be accepted as a  proposition of law that since such action results in  deprivation of constituency having its representation in  the House, a member can never be expelled. If  representation of the constituency is taken to be the sole  consideration, no action can be taken which would result  in absence of representation of such constituency in the  House. Such interpretation would make statutory  provisions (the Representation of the People Act, 1951) as  also constitutional scheme (Articles 84, 102, 190, 191,  192, Tenth Schedule, etc.) non-workable, nugatory and  otiose. If a member is disqualified or has been convicted  by a competent court, he has to go and at least for the  time being, till new member is elected, there is no  representation of the constituency in the House but it is  inevitable and cannot be helped.         There is one more aspect also. Once it is conceded  that an action of suspension of a member can be taken  (and it was expressly conceded), I fail to understand why  in principle, an action of expulsion is impossible or  illegal. In a given case, such action may or may not be  lawful or called for, but in theory, it is not possible to  hold that while the former is permissible, the latter is  not. If it is made referable to representation of the  constituency, then as observed in Raj Narain, withdrawal  of a member from the House even for a brief period is a  serious matter both for the member and his  constituency. Important debates and votes may take  place during his absence even if the period be brief and  he may not be able to present his view-point or that of  the group or that of the constituency he represented. It  is, however, in the nature of disciplinary or punitive  action for a specific parliamentary offence, namely,  disorderly behaviour. Moreover, if the House has a right  to expel a member, non-representation of the  constituency is merely a consequence, nothing more. "If  the constituency goes unrepresented in the Assembly as  a result of the act of an elected member inconsistent with  the dignity and derogatory of the conduct expected of an  elected member, then it is the voters who alone will have  to take the blame for electing a member who indulges in  conduct which is unbecoming of an elected  representative".

POSSIBILITY OF MISUSE OF POWER BY PARLIAMENT         Finally, it was strenuously urged that Parliament/  State Legislature should not be conceded such a drastic  power to expel a member from the House. As Maintland  has stated, it is open to Parliament to expel a member on  the ground of ’ugly face’. Even in such case, no Court of  Law can grant relief to him. Considering ground-realities  and falling standards in public life, such an absolute  power will more be abused than exercised properly.         I am unable to accept the submission. Even in  England, where Parliament is sovereign and supreme and  can do everything but ’make woman a man and a man a  woman’, no member of Parliament has ever been expelled  on the ground of ’ugly face’. And not even a single  incident has been placed before this Court to  substantiate the extreme argument. Even Maitland  himself has not noted any such instance. On the  contrary, he had admitted that normally, the power of  expulsion can be exercised for illegalities or misconduct

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of a serious nature.         Again, it is well-established principle of law that the  mere possibility or likelihood of abuse of power does not  make the provision ultra vires or bad in law. There is  distinction between existence (or availability) of power  and exercise thereof. Legality or otherwise of the power  must be decided by considering the nature of power, the  extent thereof, the body or authority on whom it has been  conferred, the circumstances under which it can be  exercised and all other considerations which are relevant  and germane to the exercise of such power. A provision of  law cannot be objected only on the ground that it is likely  to be misused.         In State of Rajasthan v. Union of India, (1977) 3 SCC  592, 658 : AIR 1977 SC 1361 dealing with an identical  contention, Bhagwati, J. (as His Lordship then was)  stated; "It must be remembered that merely because  power may some time be abused, is no ground  for denying the existence of power. The wisdom  of man has not yet been able to conceive of a  Government with power sufficient to answer all  its legitimate needs and at the same time  incapable of mischief". (emphasis supplied)

[see also Ajit Kumar Nag v. Indian Oil Corporation,  (2005) 7 SCC 764]. I am reminded what Chief Justice Marshall stated  before about two centuries in Providence Bank v. Alphens  Billings, 29 US 504 (1830) : 7 Law Ed 939; "This vital power may be abused; but the  Constitution of the United States was not  intended to furnish the corrective for every  abuse of power which may be committed by  the State Governments. The interest, wisdom,  and justice of the representative body, and its  relations with its constituents furnish the only  security where there is no express contract  against unjust and excessive taxation, as well  as against unwise legislation generally." (emphasis supplied)

CONCLUDING REMARKS         I have already held that the decisions taken, orders  made, findings recorded or conclusions arrived at by  Parliament/State Legislature are subject to judicial  review, albeit on limited grounds and parameters. If,  therefore, there is gross abuse of power by Parliament/  State Legislature, this Court will not hesitate in  discharging its duty by quashing the order or setting  aside unreasonable action.         I am reminded what Justice Sarkar stated in  Keshav Singh; "I wish to add that I am not one of those who  feel that a Legislative Assembly cannot be  trusted with an absolute power of committing  for contempt. The Legislatures have by the  Constitution been expressly entrusted with  much more important things. During the  fourteen years that the Constitution has been  in operation, the Legislatures have not done  anything to justify the view that they do not  deserve to be trusted with power. I would point  out that though Art. 211 is not enforceable,  the Legislatures have shown an admirable

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spirit of restraint and have not even once in all  these years discussed the conduct of Judges.  We must not lose faith in our people, we must  not think that the Legislatures would misuse  the powers given to them by the Constitution  or that safety lay only in judicial correction.  Such correct may produce friction and cause  more harm than good. In a modern State it is  often necessary for the good of the country  that parallel powers should exist in different  authorities. It is not inevitable that such  powers will clash. It would be defeatism to take  the view that in our country men would not be  available to work these powers smoothly and  in the best interests of the people and without  producing friction. I sincerely hope that what  has happened will never happen again and our  Constitution will be worked by the different  organs of the State amicably, wisely,  courageously and in the spirit in which the  makers of the Constitution expected them to  act".

I am in whole-hearted agreement with the above  observations. On my part, I may state that I am an  optimist who has trust and faith in both these august  units, namely, Legislature and Judiciary. By and large,  constitutional functionaries in this country have  admirably performed their functions, exercised their  powers and discharged their duties effectively, efficiently  and sincerely and there is no reason to doubt that in  coming years also they would continue to act in a  responsible manner expected of them. I am equally  confident that not only all the constituents of the State  will keep themselves within the domain of their  authority and will not encroach, trespass or overstep  the province of other organs but will also act in  preserving, protecting and upholding the faith,  confidence and trust reposed in them by the Founding  Fathers of the Constitution and by the people of this  great country by mutual regard, respect and dignity for  each other. On the whole, the situation is satisfactory  and I see no reason to be disappointed for future. With the above observations and pious hope, I  dismiss the Writ Petition as also all transferred cases,  however, without any order as to costs.