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

PETITIONER: Raja Ram Pal

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

DATE OF JUDGMENT: 10/01/2007

BENCH: SABHARWAL, Y.K. (CJI) & BALAKRISHNAN, K.G. (J) & THAKKER, C.K.(J) & R.V. RAVEENDRAN (J) & JAIN, D.K. (J)

JUDGMENT: J U D G M E N T

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

Y.K. Sabharwal, CJI. Factual Backgrounds The interpretation of Article 105 of Constitution of India  is in issue in these matters.  The question is whether in  exercise of the powers, privileges and immunities as contained  in Article 105, are the Houses of Parliament competent to  expel their respective Members from membership of the  House.  If such a power exists, is it subject to judicial review  and if so, the scope of such judicial review.

The unfortunate background in which the aforesaid  questions have arisen is the allegation that the Members of  Parliament (MPs) indulged in unethical and corrupt practices  of taking monetary consideration in relation to their functions  as MPs.  

A private channel had telecast a programme on 12th  December, 2005 depicting 10 MPs of House of People (Lok  Sabha) and one of Council of States (Rajya Sabha) accepting  money, directly or through middleman, as consideration for  raising certain questions in the House or for otherwise  espousing certain causes for those offering the lucre.  This led  to extensive publicity in media.  The Presiding Officers of each  Houses of Parliament instituted inquiries through separate  Committees.  Another private channel telecast a programme  on 19th December, 2005 alleging improper conduct of another  MP of Rajya Sabha in relation to the implementation of

Member of Parliament Local Area Development Scheme        ('MPLAD' Scheme for short).  This incident was also referred to  a Committee.

The Report of the inquiry concluded, inter alia, that the  evidence against the 10 members of Lok Sabha was  incriminate; the plea that the video footages were  doctored/morphed/edited had no merit; there was no valid  reason for the Committee to doubt the authenticity of the  video footage; the allegations of acceptance of money by the  said 10 members had been established which acts of  acceptance of money had a direct connection with the work of  Parliament and constituted such conduct on their part as was  unbecoming of Members of Parliament and also unethical and  calling for strict action.  The majority report also recorded the  view that in case of misconduct, or contempt, committed by its  members, the House can impose punishment in the nature of  admonition, reprimand, withdrawal from the House,  suspension from service of House, imprisonment, and  expulsion from the House.  The majority Report recorded its  deep distress over acceptance of money by MPs for raising  questions in the House and found that it had eroded the  credibility of Parliament as an institution and a pillar of  democracy in this country and recommended expulsion of the  10 members from the membership of Lok Sabha finding that  their continuance as Members of the House would be  untenable.  One member, however, recorded a note of dissent  for the reasons that in his understanding of the procedure as  established by law, no member could be expelled except for  breach of privileges of the House and that the matter must,  therefore, be dealt with according to the rules of the Privileges  Committee.   

On the Report of the Inquiry Committee being laid on the  table of the House, a Motion was adopted by Lok Sabha  resolving to expel the 10 members from the membership of  Lok Sabha, accepting the finding as contained in the Report of  the Committee that the conduct of the members was unethical  and unbecoming of the Members of Parliament and their  continuance as MPs is untenable.  On the same day i.e. 23rd  December, 2005, the Lok Sabha Secretariat issued the  impugned notification notifying the expulsion of those MPs  with effect from same date.  In the Writ Petitions/Transfer  Cases, the expelled MPs have challenged the constitutional  validity of their respective expulsions.

Almost a similar process was undertaken by the Rajya  Sabha in respect of its Member.  The matter was referred to  the Ethics Committee of the Rajya Sabha.  As per the majority  Report, the Committee found that the Member had accepted

money for tabling question in Rajya Sabha and the plea taken  by him in defence was untenable in the light of evidence before  it.  However, one Member while agreeing with other Members  of the Committee as to the factual finding expressed opinion  that in view, amongst others, of the divergent opinion  regarding the law on the subject in judgments of different High  Courts, to which confusion was added by the rules of  procedure inasmuch as Rule 297(d) would not provide for  expulsion as one of the punishments, there was a need for  clarity to rule out any margin of error and thus there was a  necessity to seek opinion of this Court under Article 143(1) of  the Constitution.  

The Report of the Ethics Committee was adopted by  Rajya Sabha concurring with the recommendation of  expulsion and on the same date i.e. 23rd December, 2005, a  notification notifying expulsion of the Member from  membership of Rajya Sabha with immediate effect was issued.

The case of petitioner in Writ Petition (C) No.129/2006  arises out of different, though similar set of circumstances.  In  this case, the telecast of the programme alleged improper  conduct in implementation of MPLAD Scheme.  The  programme was telecast on 19th December, 2005.  The Report  of the Ethics Committee found that after viewing the unedited  footage, the Committee was of the view that it was an open  and shut case as Member had unabashedly and in a  professional manner demanded commission for helping the so- called NGO to set up projects in his home state/district and to  recommend works under MPLAD Scheme.  The Committee  came to the conclusion that the conduct of the Member  amounts to violations of Code of Conduct for Members of  Rajya Sabha and it is immaterial whether any money changed  hands or not or whether any commission  was actually paid or  not.  It found that the Member has not only committed gross  misdemeanor but by his conduct he also impaired the dignity  of the House and its Member and acted in a manner which is  inconsistent with the standards that the House is entitled to  expect of its Members.  Since the conduct of the Member has  brought the House and its Member into disrepute, the  Committee expressed the view that the Member has forfeited  his right to continue as Member and, therefore, recommended  his expulsion from the membership of the House.  The Rajya  Sabha accepted the recommendations of the Ethics Committee  and Motion agreeing with the recommendation was adopted on  21st March, 2006 thereby expelling the Member from the  membership bringing to an end his membership.  On the same  date notification was issued by Rajya Sabha Secretariat.

The two Members of Rajya Sabha have also challenged

the constitutional validity of their expulsions. Article 105 reads as under : "105. Powers, privileges, etc. of the  Houses of Parliament and of the  members and committees thereof.--(1)  Subject to the provisions of this  Constitution and the rules and standing  orders regulating the procedure of  Parliament, there shall be freedom of  speech in Parliament. (2) No member of Parliament shall be  liable to any proceedings in any court in  respect of anything said or any vote given  by him in Parliament or any committee  thereof, and no person shall be so liable  in respect of the publication by or under  the authority of either House of  Parliament of any report, paper, voles or  proceedings. (3) In other respects, the powers,  privileges and immunities of each House  of Parliament, and of the members and  the committees of each House, shall be  such as may from time to time be defined  by Parliament by law, and, until so  defined, shall be those of that House and  of its members and committees  immediately before the coming into force  of section 15 of the Constitution (Forty- fourth Amendment) Act 1978. (4) The provisions of clauses (1), (2) and  (3) shall apply in relation to persons who  by virtue of this Constitution have the  right to speak in, and otherwise to take  part in the proceedings of, a House of  Parliament or any committee thereof as  they apply in relation to members of  Parliament."

There is identical provision as contained in Article 194  relating to powers, privileges and immunities of State  legislature.  Article 194 reads as under :- "194.Powers, privileges, etc., of the  House of Legislatures and of the  members and committees thereof.--(1)  Subject to the provisions of this  Constitution and to the rules and

standing orders regulating the procedure  of the Legislature, there shall be freedom  of speech in the Legislature of every Slate.  (2) No member of the Legislature of a  State shall be liable to any proceedings in  any court in respect of anything said or  any vote given by him in the Legislature  or any committee thereof, and no person  shall be so liable in respect of the  publication by or under the authority of a  House of such a Legislature of any report,  paper, votes or proceedings.  (3) In other respects, the powers,  privileges and immunities of a House of  the Legislature of a State, and of the  members and the committees of a House  of such Legislature, shall be such as may  from time to time be defined by the  Legislature by law, and, until so defined,  shall be those of that House and of its  members and committees immediately  before the coming into force of section 26  of the Constitution (forty-fourth  Amendment) Act, 1978. (4) The provisions of clauses (1), (2) and  (3) shall apply in relation to persons who  by virtue of this Constitution have the  right to speak in, and otherwise to take  part in the proceedings of a House of the  Legislature of a State or any committee  thereof as they apply in relation to  members of that Legislature."

Article 105(3) underwent a change in terms of Section 15  of the Constitution (44th Amendment) Act, 1978.  In Article  105(3), the words "shall be those of the House of Commons of  the Parliament of the United Kingdom, and of its members and  committees at the commencement of this Constitution" were  substituted by the words "shall be those of that House and of  its members and committees immediately before the coming  into force of Section 15 of the Constitution (fourty-fourth  Amendment) Act, 1978".  The similar changes were also  effected in Article 194(3) of the Constitution.  These  amendments have no relevance for determining the  interpretation of Article 105(3) since the amendments clearly  seem to be only cosmetic for the purpose of omitting the  reference of the House of Commons in these articles.

Before the amendment in 1978, clause (3) of Article 105  read as under :- "(3). In other respects, the powers,  privileges and immunities of each House  of Parliament, and of the members and  the committees of each House, shall be  such as may from time to time be defined  by Parliament by law, and, until so  defined, shall be those of the House of  Commons of the Parliament of the United  Kingdom, and of its members and  committees, at the commencement of this  Constitution."  Contentions

The petitioners submit that all the powers,  privileges or immunities, as vested on the date of  commencement of the Constitution of India, in the House of  Commons of the Parliament of United Kingdom had not been  inherited by the legislatures in India under Article 105(3) of  the Constitution.   

The main contention urged is that power and privilege of  expulsion was exercised by the House of Commons as a facet  of its power of self-composition and since such power of such  self-composition has not been given by the Constitution to  Indian legislature, it did not inherit the power to expel its  members.  The contention is that expulsion is necessarily  punitive in nature rather than remedial and such power vested  in House of Commons as a result of its power to punish for  contempt in its capacity as a High Court of Parliament and  since this Status was not accorded to Indian Legislature, the  power to expel could not be claimed by the Houses of  Parliament under Article 105(3).  It is also their contention  that power to expel cannot be asserted through Article 105(3)  also for the reason that such an interpretation would come in  conflict with other constitutional provisions.  A grievance has  also been made about denial of principles of natural justice in  the inquiry proceedings and it is contended that there are  gross and patent illegalities which are not protected from  judicial review by Article 122 on plea of procedural  irregularities.  The contention of the petitioners further is that  even the plenary powers of the legislature are controlled by the  basic concepts of the Constitution and, therefore, it has to  function within the circumscribed limits.  The submission is  that this Court is the final arbiter on the constitutional issues  and the existence of judicial power in such behalf must  necessarily and inevitably postulate the existence of a right in  the citizen to move the Court for protection of fundamental

rights and for due adherence to the constitutional provisions  and scheme in absence of which the power conferred on the  judicial organ would be rendered meaningless.  The contention  also is that the extent and scope of power conferred on each  branch of the State, limits on the exercise of such power under  Constitution and any action of any branch that transgresses  such limit is for the judiciary to determine as the final  interpreter of the Constitution.  Petitioners submit that the  constitutional and legal protection accorded to the citizens  would become illusory if it were left to the organ in question to  determine the legality of its own action.  They further submit  that it is also a basic principle of rule of law permeating every  provision of the Constitution, rather forming its very core and  essence, that the exercise of power by the Executive or any  other authority must not only be conditioned by the  Constitution but also be in accordance with law in which  context it is primarily the function of the judiciary alone to  ensure that the law is observed and there is compliance with  the requirement of the constitutional provisions which is  performed through patent weapon used as power of judicial  review. On the plea that this Court has the jurisdiction to  exercise the power of judicial review in a case of this nature  where another coordinate organ of the State has asserted and  claimed a power and privilege on the strength of a  Constitutional provision seemingly also claiming "exclusive  cognizance", meaning immunity from judicial interference, the  contentions of the petitioners can be summarized thus:- (i) The power of judicial review is an incident of and flows  from the concept that the fundamental and higher laws  are the touchstone of the limits of the powers of the  various organs of State which derive power and authority  under the Constitution of which the judicial wing is the  interpreter; (ii) Unlike in England where Parliament is sovereign, in a  federal State with a written Constitution like India is, the  supremacy of the Constitution is fundamental to its  existence, which supremacy is protected by the authority  of the independent judicial body that acts as the  interpreter thereof through the power of judicial review to  which even the Legislature is amenable and cannot claim  immunity wherefrom; (iii) The legislative supremacy being subject to the  Constitution, Parliament cannot determine for itself the  nature, scope and effect of its powers which are,  consequently, subject to the supervision and control of  judicial organ;

(iv) The petitioners would also point out that unlike the  Parliament of England, the status of Legislature in India  has never been that of a superior court of record and that  even privileges of Parliament are subject to limits which  must necessarily be ascertainable and, therefore, subject  to scrutiny by the Court, like any other right; (v) The validity of any proceedings even inside a legislative  chamber can be called in question before the Court when  it suffers from illegality and unconstitutionality and there  is no immunity available to Parliament from judicial  review. It is the petitioners' contention that the Houses of  Parliament had no power of expulsion of a sitting member.  They plead that the petitioners could not be debarred from  membership of the House by or under the impugned  notifications pursuant to proceedings consequent upon the  media reports inasmuch as substantive and adjectival law had  been disregarded and the Constitutional inhibition placed on  the exercise of power of debarment had been defeated.  On the  case that the Indian legislatures cannot claim the power of  expulsion of their members, the contentions are stated thus:- (i) The Legislature has no power to expel its member since  the Parliament has not enacted any law which provides  for expulsion of a member in a specified circumstance, in  terms of enabling power to legislate on the subject as  available in Article 105(3) of the Constitution; (ii) The expulsions are illegal, arbitrary and unconstitutional,  being violative of the provisions of Articles 83, 84 and  101 to 103, 105 and 190 to 193 of the Constitution; (iii) There is no provision either in the Constitution of India  or in the Rules of Procedure and Conduct of Business of  the Houses of Parliament for expulsion of a member by  adoption of a motion and thus the impugned acts were  beyond the jurisdiction of Parliament; (iv) The expulsion of the petitioners from the Legislature  through a motion adopted by simple majority was a  dangerous precedent which would give dictatorial powers  to the ruling majority in the Legislatures in future and  thus be prone to further abuse; (v) The Constitutional law governing the democracies the  world over, even in other jurisdictions governed by  written Constitutions, would not allow the power of  exclusion of the elected members unto the legislative  chamber.   Claiming that they were innocent and had been falsely  trapped, by the persons behind the so-called sting operation  who had acted in a manner actuated by mala fides and greedy

intent for cheap publicity and wrongful gains bringing the  petitioners into disrepute, the Petitioners question the  procedure adopted by the two Houses of Parliament alleging  that it suffered from gross illegality (as against procedural  irregularity) calling for judicial interference. In this respect, the  petitioners submit that the enquiries conducted by the two  Houses were unduly hurried; were neither fair nor impartial  and have resulted in gross violation of rules of natural justice  which were required to be followed inasmuch as the action  that was contemplated would entail civil consequences; the  Petitioners had not even been treated as ordinary offenders of  law and deprived of basic opportunity of defending themselves  through legal counsel and opportunity to explain; the evidence  in the form of videography etc. had been relied upon without  opportunity being given to them to test the veracity of such  evidence, specially in the face of their defence that the video  clippings had been doctored or morphed which plea had not  been properly examined or enquired into and the evidence of  such nature had been relied upon in violation of the settled  law; the expulsions are illegal, arbitrary and unconstitutional,  being violative of the provisions of Articles 14 & 21 of the  Constitution; the petitioners claim that as a consequence of  the impugned decisions they had suffered irreparable loss and  their image and prestige had been lowered in the eyes of the  electorate.   The two Houses of Parliament, through their respective  secretariats, have chosen not to appear in the matter.  The  impugned decisions are, however, sought to be defended by  the Union of India.  The contention urged on behalf of Union of  India is that the conduct of accepting money for tabling  questions and raising matters in the House was considered by  the respective Houses of Parliament as unbecoming of  members of the House rendering them unfit for being  members of the respective Houses.  The actions of expulsions  are matters within the inherent power and privileges of the  Houses of Parliament.  It is a privilege of each House to  conduct its internal proceedings within the walls of the House  free from interference including its right to impose disciplinary  measures upon its members.  The power of the Court to  examine the action of a House over outsider in a matter of  privilege and contempt does not extend to matters within the  walls of the House over its own members.  When a member is  excluded from participating in the proceedings of the House, it  is a matter concerning the House and the grievance of  expulsion is in regard to proceedings within the walls of  Parliament and in regard to rights to be exercised within the  walls of the House, the House itself is the final judge.  The

expulsion of these members has been rightly carried out by  respective Houses in exercise of their powers and privileges  under Article 105(3) of the Constitution which power and  privilege of expulsion has been exercised by the Houses of  Parliament in the past as well.  The expulsion does not create  any disability to be re-elected again as a member of the House. We have heard learned Senior Advocates Mr. Ram  Jethmalani, Mr. P.N. Lekhi for the petitioners as also Dr. K.S.  Chauhan, Advocate and other learned counsel appearing for  the petitioners.  For the respondents, we have heard Mr. Gopal  Subramanian, learned additional Solicitor General appearing  on behalf of Attorney General for India and Mr. T.R.  Andhyarujina, learned Senior Advocate on behalf of Union of  India. Constitutional Scheme

To appreciate the contentions, it is necessary to first  examine the constitutional scheme.   That the Constitution is the Supreme lex in this Country  is beyond the pale of any controversy.  All organs of the State  derive their authority, jurisdiction and powers from the  Constitution and owe allegiance to it.  This includes this Court  also which represents the judicial organ.  In the celebrated  case of Kesavananda Bharati v. State of Kerala [(1973) 4  SCC 225], this Court found certain basic features of the  Constitution that include, besides supremacy of the  Constitution, the republican and democratic form of  Government, and the separation of powers between the  Legislature, the Executive and the Judiciary.  The principle of  supremacy of the Constitution has been reiterated by this  Court post Kesavananda Bharati in case after case  including, to name just some of them, Indira Nehru Gandhi  v. Raj Narain [1975 (Suppl) SCC 1], Minerva Mills Ltd. v.  Union of India, [(1980) 3 SCC 625], Sub-Committee on  Judicial Accountability v. Union of India [(1991) 4 SCC  699],  I. Manilal Singh v. H . Borobabu Singh (Dr), [1994  Supp (1) SCC 718], Union of India v. Assn. for Democratic  Reforms,[(2002) 5 SCC 294], Special Reference No. 1 of  2002, In re (Gujarat Assembly Election matter) [(2002) 8  SCC 237], People's Union for Civil Liberties (PUCL) v. Union  of India,[(2003) 4 SCC 399], Pratap Singh v. State of  Jharkhand, [(2005) 3 SCC 551], Rameshwar Prasad (VI) v.  Union of India, [(2006) 2 SCC 1], Kuldip Nayar vs. Union of  India, [(2006) 7 SCC 1].  That the parliamentary democracy in India is  qualitatively distinct from the one in England from where we  have borrowed the Westminster model of Government, is also  well settled.  In this context, before proceeding further on this

premise, we may quote the following observations of the  Constitution Bench (7 Judges) appearing at page 444 in  Special Reference No. 1 of 1964, [(1965) 1 SCR 413] (UP  Assembly case) :- "In dealing with this question, it is  necessary to bear in mind one  fundamental feature of a Federal  Constitution. In England, Parliament is  sovereign; and in the words of Dicey, the  three distinguishing features of the  principle of Parliamentary Sovereignty are  that Parliament has the right to make or  unmake any law whatever; that no  person or body is recognised by the law of  England as having a right to override or  set aside the legislation of Parliament,  and that the right or power of Parliament  extends to every part of the Queen's  dominions [Dicey, The Law of the  Constitution 10th ed. Pp.xxxiv, xxxv]. On  the other hand, the essential  characteristic of federalism is "the  distribution of limited executive,  legislative and judicial authority among  bodies which are coordinate with and  independent of each other". The  supremacy of the constitution is  fundamental to the existence of a federal  State in order to prevent either the  legislature of the federal unit or those of  the member States from destroying or  impairing that delicate balance of power  which satisfies the particular  requirements of States which are  desirous of union, but not prepared to  merge their individuality in a unity. This  supremacy of the constitution is  protected by the authority of an  independent judicial body to act as the  interpreter of a scheme of distribution of  powers. Nor is any change possible in the  constitution by the ordinary process of  federal or State legislation [Ibid p.Ixxvii].  Thus the dominant characteristic of the  British Constitution cannot be claimed by  a Federal Constitution like ours."

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

The judicial organ of the State has been made the final  arbiter of Constitutional issues and its authority and  jurisdiction in this respect is an important and integral part of  the basic structure of the Constitution of India.  Before coming  in grips with the complex Constitutional questions that have  been raised, we would well remind ourselves, more than we do  everyone else, of the following further observations made at  page 447 :- "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 antinomy nor in a spirit of  hostility, but rationally, harmoniously  and in a spirit of understanding within  their respective spheres, for such  harmonious working of the three  constituents of the democratic State  alone will help the peaceful development,  growth and stabilisation of the  democratic way of life in this country."

The issues involved are required to be examined bearing  in mind the basic ethos of our Constitutional scheme in the  above light. The Constitution of India provides through Chapter II of  Part V for Union Legislature, called the "Parliament".  Parliament consists of, besides the President, two Houses  known respectively as the Council of States (Rajya Sabha) and  the House of the People (Lok Sabha).  Article 80 deals with the  matter of composition of Rajya Sabha.   Article 81, on the  other hand, provides for composition of Lok Sabha.  In terms  of Article 83, Rajya Sabha is a permanent body, not subject to  dissolution, its continuance being ensured by replacements of  one third of the members who retire on the expiration of every  second year.  Lok Sabha, on the other hand, is given a fixed  term of five years, unless sooner dissolved or unless its term is  extended in situation of emergency as provided in the proviso  to sub-rule (2) of Article 83.   In the loose federal structure that India has adopted for  itself, wherein India is an indestructible Union of destructible  units, there is a provision for State Legislature in Chapter III of  Part VI governing the States, almost similar to the set up at  the Centre.   The relations between the Union and the States are  controlled by the provisions contained in Part XI of the  Constitution.  The Constitution permits, through Article 118 and Article  208, the Legislature at the Centre and in the States  respectively, the authority to make rules for regulating their  respective procedure and conduct of business "subject to the

provisions of this Constitution".  Since we are concerned mainly with the Houses of  Parliament in these proceedings, it may be mentioned that  each House in exercise of its powers under Article 118 has  framed detailed rules of procedure which are called "Rules of  Procedure and Conduct of Business in Lok Sabha" and Rules  of Procedure and Conduct of Business in the Council of  States". Conscious of the high status of these bodies, the  Constitution accorded certain powers, privileges and  immunities to the Parliament and State Legislatures and their  respective members. For this purpose, specific provisions were  included in the Constitution in Articles 105.  For the present, it may only be noticed that sub-Article  (1) of Article 105 and Article 194 respectively confers on the  Members of Parliament and the State Legislatures respectively  "freedom of speech" in the Legislature, though "subject to the  provisions" of the Constitution and "subject to the rules and  orders regulating the procedure" of Parliament or of the  Legislatures, as the case may be.   Sub-Article (2) of both the said Articles grants, inter alia,  absolute immunity to members of the Legislatures from "any  proceedings in any Court in respect of anything said or any  vote given" by them in the Legislatures or any Committee  thereof.  Sub-Article (3) of Article 105 and Article 194 declares  that "the powers, privileges and immunities" of each House of  the Legislatures and the members and Committees thereof, "in  other respects" shall be "such as may from time to time be  defined" by the Parliament or the State Legislature, as the case  may be, "by law" and, "until so defined", to be those as were  enjoyed by the said Houses or members of the Committees  thereof immediately before coming into force of the  amendment in 1978.   

Article 122 is of great import in the context of, amongst  others, Article 105, since it seems to restrict the jurisdiction of  the Courts in relation to "proceedings of Parliament".  It reads  as under:- "122. Courts not to inquire into  proceedings of Parliament.(1) The  validity of any proceedings in Parliament  shall not be called in question on the  ground of any alleged irregularity of  procedure. (2) No officer or member of Parliament in  whom powers are vested by or under this  Constitution for regulating procedure or

the conduct of business, or for  maintaining order, in Parliament shall be  subject to the jurisdiction of any court in  respect of the exercise by him of those  powers."

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

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

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

There was virtually a consensus amongst the learned

counsel that it lies within the powers and jurisdiction of this  Court to examine and determine the extent of power and  privileges to find out whether actually power of expulsion is  available under Article 105(3) or not.   Having regard to the delicate balance of power  distributed amongst the three chief organs of the State by the  Constitution of India and the forceful assertions made  particularly with regard to the limitation on court's  jurisdiction, we decided not to depend upon mere concession  of the learned counsel as to our jurisdiction. We thought it  prudent to examine it fully even in the context of primary  question about the judicial authority to go into the question of  existence of a particular power or privilege asserted and  claimed under Article 105, so as to reassure ourselves that we  were not in any manner intruding into a zone which is out-of- bounds for us.    Fortunately, the subject at hand is not a virgin territory.   There have been occasions in the past for this court to go into  these issues, though in somewhat different fact situations.   Similarly, we have the benefit of opinion on these questions,  expressed by at least three High Courts, though that happens  to be a divided opinion. As can be seen from the language employed in Article  105, the Parliament is empowered to define, by law, the  powers, privileges and immunities of each House and of their  Members and Committees in respects other than those  specified in the Constitutional provisions.  Though some part  of the arguments advanced on behalf of the petitioners did try  to refer to certain statutory provisions, for example, provisions  contained in Sections 8 to 11 of the Representation of People  Act 1951, as referable to the enabling power given to the  Parliament in the first part of Article 105(3) but for present  purposes, we would assume that Parliament has not yet  exercised the said enabling power in as much as there is no  law enacted till date that can be referred as cataloging the  powers, privileges and immunities of each House of Parliament  and of their members and committees.   This consequence  leads to continuity of the life of the second part of Article  105(3) in as much as that part of the provision was designed  to come to an end as soon as the Parliament defined by law its  powers, privileges and immunities.  Therefore, powers,  privileges and immunities not having been defined, the  question is what are those powers which were enjoyed by  House of Commons at the commencement of our Constitution  as that will determine the powers, privileges and immunities of  both Houses of Indian Parliament.   The history of the subject of Parliamentary privileges

indicates numerous instances where the effort at tracing the  dividing line between the competence of courts and the  exclusive jurisdiction of the legislature threw up complex  Constitutional questions giving rise to divergent opinions and  decisions even in England, more importantly, in connection  with the House of Commons.  These questions included the  abstract question whether the law of Parliament in such  regard was a "particular law" or "part of the common law" in  its wide and extended sense and the practical question  whether the House of Commons was to be the sole judge of a  matter of privilege claimed by it even when the rights of third  parties were involved or whether in such cases the issues  could be decided in the courts.  The next question arising from  the last mentioned issue naturally concerned the extent of the  power of the judges that is to say if they were bound to accept  and apply the parliamentary interpretation of the law or were  free to form their own view in such regard. The dust has since settled even in England which  jurisdiction since concedes the jurisdiction of the court to  decide all questions of privilege, except those concerning  exclusive jurisdiction of the legislative chamber over its own  internal proceedings. The works of English and Commonwealth authors have  always been treated as the most authoritative references for  determining the source of a Privilege or power exercised by the  House of Commons. They include Halsbury's Laws of England,  Maitland, Wade and Phillips, Keir & Lawson, Sir Barnett  Cocks, Ridges on Constitutional Law, and Sir William Anson's  "The Law and Custom of the Constitution". Sir Thomas  Erskine May was a clerk of the House of Commons (1871- 1886).  His work "Parliamentary Practice", hereinafter referred  to as "May's Parliamentary Practice", is universally regarded  as an authoritative exposition of this branch of law.  The following extract from page 183 in chapter 11  "Jurisdiction of Courts of Law in Matters of Privilege" as  appearing in Erskine May's Parliamentary Practice, 20th  Edition reflects the prevalent law in United Kingdom:- "The problem thus became one of  reconciling the law of privilege with the  general law.  The solution gradually  marked out by the courts is to insist on  their right in principle to decide all  questions of privilege arising in litigation  before them, with certain large  exceptions in favour of parliamentary  jurisdiction.  Two of these, which are  supported by a great weight of

authority, are the exclusive jurisdiction  of each House over its own internal  proceedings, and the right of either  House to commit and punish for  contempt. While it cannot be claimed  that either House to commit or formally  acquiesced in this assumption of  jurisdiction by the courts, the absence  of any conflict for over a century may  indicate a certain measure of tacit  acceptance."

The learned counsel for all sides have referred to  Bradlaugh v. Gosset [1884 12 QBD 271].  Charles  Bradlaugh, the plaintiff in that case before Queen's Bench  Division had been elected a Burgess to serve in the House of  Commons and was entitled to take oath by law prescribed to  be taken by the members of the said chamber of legislature  and to sit and vote in the House as an elected representative.   This resolution was explained in due course by Speaker to  mean that the exclusion of Bradlaugh from the House would  continue "until he should engage not to attempt to take the  oath in disregard of the resolution of the House now in force".   The issues that were raised before the court included the  question whether the House of Commons had a right to pass  such a resolution forbidding the member of the House within  the walls of the House itself from doing something which by  the law of the land he had a right to do so and whether the  court could inquire into the said right and allow an action to  be maintained by a member of the House.  Reliance has been  placed on certain observations made in the judgment that was  rendered in the said fact situation.  At page 275,  Lord  Coleridge, C.J. observed as under:- "Alongside, however, of these  propositions, for the soundness of which I  should be prepared most earnestly to  contend, there is another proposition  equally true, equally well established,  which seems to me decisive of the case  before us.    What is said or done within  the walls of Parliament cannot be  inquired into in a court of law.  On this  point all the judges in the two great cases  which exhaust the learning on the  subject  Burdett v. Abbott [14 East, 1,  148] and Stockdale v. Hansard [9 Ad. &

E. 1.]; - are agreed, and are emphatic.   The jurisdiction of the House over their  own members, their right to impose  discipline within their walls, is absolute  and exclusive.  To use the words of Lord  Ellenborough, "They would sink into utter  contempt and inefficiency without it." [14  East, at p. 152]"

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

discussed, and adjudged in that  House to which it relates, and not  elsewhere.'"

Further, the views formulated in Prebble v. Television  New Zealand Ltd. were expressed at page 980 thus: "Parties to litigation, by whomsoever  commenced, cannot bring into question  anything said or done in the House by  suggesting (whether by direct evidence,  cross-examination, inference or  submission) that the actions or words  were inspired by in proper motives or  were untrue or misleading.  Such matters  lie entirely within the jurisdiction of the  House, subject to any statutory exception  such as exists in New Zealand in relation  to perjury under Section 108 of the  Crimes Act 1961."

The learned counsel would then refer to the law that has  been evolved in India, the case of M.S.M. Sharma v. Sri  Krishna Sinha [1959 Supp (1) SCR 806], hereinafter  referred to as case of Pandit Sharma (I), being perhaps the  first in a series of such cases on the subject. Pandit Sharma, the petitioner in that case was editor of  an English Daily Newspaper "Searchlight" of Patna.  He invited  the wrath of the legislative assembly of Bihar by publishing  extracts from proceedings of the legislative assembly including  certain parts which had been ordered to be expunged by the  Speaker.  In this context, the Speaker had referred the matter  to the Privileges Committee of the assembly which in turn  issued a show cause notice to him.  Pandit Sharma brought  writ petition in this court under Article 32 of the Constitution  of India alleging that the proceedings initiated by the  legislative assembly had violated his fundamental right of  speech and expression under Article 19 (1) (a) as also the  fundamental right of protection of his personal liberty under  Article 21.  The case was decided by a Constitution Bench (five  Judges), with main focus on two principal points; namely, the  availability of a privilege under Article 194(3) of the  Constitution to the House of a legislature in India to prohibit  entirely the publication of the publicly seen and heard  proceedings that took place in the House or even to prohibit  the publication of such part of the proceedings as had been  directed to be expunged and as to whether the privilege of the  legislative chamber under Article 194(3) prevailed over the

fundamental right of a citizen under Article 19 (1) (a).   Noticeably, no specific objection as to the jurisdiction of the  court in examining the issue of existence and availability of  the particular privilege was raised at any stage.   It may be mentioned here that the writ petition of Pandit  Sharma was dismissed on the basis of majority view, inter alia,  holding that the legislatures in India were vested with the  power or privilege of prohibiting the publication of debates or  proceedings that took place in the House, of even a true and  faithful report, as indeed of an inaccurate or garbled version  thereof.  It was further held that the powers, privileges and  immunities available in terms of Articles 105(3) and 194(3)  stood in the same supreme position as the provisions of Part  III of the Constitution and could not be affected by Article 13  and, therefore, the principle of harmonious construction  required to be adopted. The court concluded that the  fundamental right of free speech and expression under Article  19 (1)(a) being general in nature must yield to Article 194(1)  and the latter part of Article 194(3) which are special  provisions. The challenge to the proceedings under Article  194(3) on the basis of Article 21 was also repelled on the  ground of it being "in accordance with the procedure  established by law" in as much as the rules framed by the  legislative assembly under Article 208 laid down the  procedure. The case of Pandit Sharma did not end there.  Subsequently, the legislative assembly of Bihar came to be  prorogued several times and the committee of privileges was  also reconstituted.  This led to a fresh notice being issued to  Pandit Sharma in the wake of which he brought another writ  petition under Article 32 of the Constitution, substantially  raising the same questions and contentions as had been  agitated in the earlier proceedings by him before this court.  This writ petition was dismissed by the Constitution Bench  (eight Judges).  The judgment is reported as M.S.M. Sharma  v. Shree Krishna Sinha [(1961) 1 SCR 96], hereinafter  referred to as case of Pandit Sharma (II). In Para 10 of the Judgment, this Court observed thus:- "10. . It was contended that the  procedure adopted inside the House of  the Legislature was not regular and not  strictly in accordance with law. There are  two answers to this contention, firstly,  that according to the previous decision of  this Court, the petitioner has not the  fundamental right claimed by him. He is,  therefore, out of Court. Secondly, the

validity of the proceedings inside the  Legislature of a State cannot be called in  question on the allegation that the  procedure laid down by the law had not  been strictly followed. Article 212 of the  Constitution is a complete answer to this  part of the contention raised on behalf of  the petitioner. No Court can go into those  questions which are within the special  jurisdiction of the Legislature itself,  which has the power to conduct its own  business. Possibly, a third answer to this  part of the contention raised on behalf of  the petitioner is that it is yet premature  to consider the question of procedure as  the Committee is yet to conclude its  proceedings. It must also be observed  that once it has been held that the  Legislature has the jurisdiction to control  the publication of its proceedings and to  go into the question whether there has  been any breach of its privileges, the  Legislature is vested with complete  jurisdiction to carry on its proceedings in  accordance with its rules of business.  Even though it may not have strictly  complied with the requirements of the  procedural law laid down for conducting  its business, that cannot be a ground for  interference by this Court under Article  32 of the Constitution. Courts have  always recognised the basic difference  between complete want of jurisdiction  and improper or irregular exercise of  jurisdiction. Mere non- compliance with  rules of procedure cannot be a ground for  issuing a writ under Article 32 of the  Constitution vide Janardan Reddy v.  State of Hyderabad [1951 SCR 344]."

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

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

warrant, is the High Court entitled to  entertain a habeas corpus petition  challenging the validity of the detention of  the person sentenced by the  House?..........."  

It is clear from the opinion rendered in UP Assembly  case that the State legislature, though participating in the  hearing, expressed reservations as to the jurisdiction of this  court in any manner in respect of the area of controversy  covered by the questions, insisting that "the question about  the existence and extent of the powers, privileges and  immunities of the House, as well as the question about the  exercise of the powers and privileges were entirely and  exclusively within the jurisdiction of the House; and whatever  this Court may say will not preclude the House from deciding  for itself the points referred to us under this Reference",  referring in this context, inter alia to the fact that there was no  lis before the court which was therefore not exercising "its  judicial function" while dealing with a reference under Article  143 (1). After examining the issue of absolute immunity of the  proceedings of the House in such matters from challenge in  the court, in light of various Constitutional provisions and  tracing the development of the law on the subject in England  with the help, amongst others, of May's Parliamentary  Practice, this Court summarized the legal position as obtaining  in United Kingdom, at page 467, as under:-

"83. In regard to punishment for  contempt, a similar process of give and  take by convention has been in operation  and gradually a large area of agreement  has, in practice, been evolved.  Theoretically, the House of Commons  claims that its admitted right to  adjudicate on breaches of privilege  implies in theory the right to determine  the existence and extent of the privileges  themselves. It has never expressly  abandoned this claim. On the other  hand, the courts regard the privileges of  Parliament as part of the law of the land,  of which they are bound to take judicial  notice. They consider it their duty to  decide any question of privilege arising  directly or indirectly in a case which falls

within their jurisdiction, and to decide it  according to their own interpretation of  the law [May's Parliamentary Practice, p.  172]. Naturally, as a result of this  dualism the decisions of the courts are  not accepted as binding by the House in  matters of privilege, nor the decisions of  the House by the courts; and as May  points out, on the theoretical plane, the  old dualism remains unresolved. In  practice, however, "there is much more  agreement on the nature and principles  of privilege than the deadlock on the  question of jurisdiction would lead one to  expect" and May describes these general  conclusions in the following words: (1) It seems to be recognized that, for  the purpose of adjudicating on  questions of privilege, neither House  is by itself entitled to claim the  supermacy over the ordinary courts  of justice which was enjoyed by the  undivided High Court of Parliament.  The supremacy of Parliament,  consisting of the King and the two  Houses, is a legislative supremacy  which has nothing to do with the  privilege jurisdiction of either House  acting singly. (2) It is admitted by both Houses that,  since either House can by itself add  to the law, neither House can by its  own declaration create a new  privilege. This implies that privilege  is objective and its extent  ascertainable, and reinforces the  doctrine that it is known by the  courts. On the other hand, the courts  admit: (3) That the control of each House over its  internal proceedings is absolute and  cannot be interfered with by the  courts. (4) That a committal for contempt by  either House is in practice within its  exclusive jurisdiction, since the

facts constituting the alleged  contempt need not be stated on the  warrant of committal [May's  Parliamentary Practice, p. 173].

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

Sarkar J. in his separate judgment in the same case was  ad idem with the majority opinion in this context.  Rejecting  the contentions based on the observations in Bradlaugh, he  observed at page 508 as under:- "This passage should suffice to illustrate  the nature of the dispute. It will not be  profitable at all, and indeed I think it will  be 'mischievous', to enter upon a  discussion of that dispute for it will only  serve to make it turbid, by raking up  impurities which have settled down, a  stream which has run clear now for  years. Furthermore that dispute can  never arise in this country for here it is  undoubtedly for the courts to interpret  the Constitution and, therefore, Article  194(3). It follows that when a question  arises in this country under that article  as to whether the House of Commons  possessed a particular privilege at the

commencement of the Constitution, that  question must be settled, and settled  only, by the Courts of law. There is no  scope of the dreaded "dualism" appearing  here, that is, courts entering into a  controversy with a House of a legislature  as to what its privileges are. I think what  I have said should suffice to explain the  nature of the privileges for the purposes  of the present reference and I will now  proceed to discuss the privileges of the  Assembly that are in question in this  case, using that word in the sense of  rights ancillary to the main function of  the legislature."  (Emphasis supplied)

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

The case State of Karnataka v. Union of India [(1977)  4 SCC 608] decided by a Constitution Bench (seven Judges) of  this court finally clinched the issue beyond the pale of any  doubts.  The case had arisen against the backdrop of  appointment by the Central Government of a Commission of  Inquiry against the then Chief Minister of Karnataka.  The  State of Karnataka filed a suit in this court, inter alia, for a  declaration that the appointment of the Commission was  illegal, in as much as the terms of reference of the Inquiry  Commission covered matters falling exclusively within the  sphere of the State's legislative and executive power on which  basis, amongst others, it was contended that the federal  structure implicit and accepted as an inviolable basic feature  of the Constitution was being abridged.  Some arguments in  the context of this controversy were founded on the powers

and privileges of the legislature of the State under Article 194  of the Constitution. Examining these arguments, Beg CJ. in  his judgment observed as under:- "63. Now, what learned Counsel for the  plaintiff seemed to suggest was that  Ministers, answerable to a Legislature  were governed by a separate law which  exempted them from liabilities under the  ordinary law. This was never the Law in  England. And, it is not so here. Our  Constitution leaves no scope for such  arguments, based on a confusion  concerning the "powers" and "privileges"  of the House of Commons mentioned in  Articles 105(3) and 194(3). Our  Constitution vests only legislative power  in Parliament as well as in the State  Legislatures. A House of Parliament or  State Legislature cannot try anyone or  any case directly, as a Court of Justice  can, but it can proceed quasi-judicially in  cases of contempts of its authority and  take up motions concerning its  "privileges" and "immunities" because, in  doing so, it only seeks removal of  obstructions to the due performance of  its legislative functions. But, if any  question of jurisdiction arises as to  whether a matter falls here or not, it has  to be decided by the ordinary courts in  appropriate proceedings."  (Emphasis supplied)

In view of the above clear enunciation of law by  Constitutional Benches of this court in case after case, there  ought not be any doubt left that whenever Parliament, or for  that matter any State legislature, claims any power or privilege  in terms of the provisions contained in Article 105(3), or Article  194(3) as the case may be, it is the court which has the  authority and the jurisdiction to examine, on grievance being  brought before it, to find out if the particular power or privilege  that has been claimed or asserted by the legislature is one that  was contemplated by the said constitutional provisions or, to  put it simply, if it was such a power or privilege as can be said  to have been vested in the House of Commons of the  Parliament of United Kingdom as on the date of  commencement of the Constitution of India so as to become

available to the Indian legislatures. Historical perspective from England To find out the basis of House of Commons possessing  the right of expulsion of its members, it is necessary to  examine the historical perspective of preliminary powers and  privileges and immunities.  For finding out the roots of powers,  privileges and immunities of House of Commons, it is  necessary to refer to the views of constitutional authors  mentioned hereinbefore. The term 'privilege in law' is defined as immunity or an  exemption from some duty, burden, attendance or liability  conferred by special grant in derogation of common right.  The  term is derived from an expression 'privilegium' which means  a law specially passed in favour of or against a particular  person. May, in his "Parliamentary Practice", has defined  parliamentary privilege as "the sum of the peculiar rights  enjoyed by each House collectively as a constituent part of the  High Court of Parliament, and by members of each House  individually, without which they could not discharge their  functions, and which exceed those possessed by other bodies  of individuals".  Thus, privilege, though not part of the law of  the land, is to a certain extent an exemption from the ordinary  law.  Rutledge, in his "Procedure of the House of Commons"  [Volume I, page 46], defined privileges as "the sum of the  fundamental rights of the House and of its individual members  as against the prerogatives of the Crown, the authority of the  courts of law, and the special rights of the House of Lords". The origin of parliamentary privileges is inextricably  intertwined with the specific history of the institution of  Parliament in England, and more specifically with the battle  between Parliament and the English Monarch for political  control in the 17th century.  An understanding of the manner  in which the concept of parliamentary privilege developed,  therefore, requires a sound understanding of the institutional  history of Parliament in the United Kingdom. Parliament in the United Kingdom emerged in the  Thirteenth Century. By 14th century, Parliament had begun to  exercise a small measure of judicial power.  It took on the role  of a court in relation to treason and related matters.  In 1376,  Parliament, specifically the Commons, had taken upon itself  the power of impeachment of the King's servants. Thus, the  lords could hear appeals of treason and Bills of Attainder  where the accuser was the King. The long struggle of the  British subjects to bring about a parliamentary democracy  involved royal concessions, people's resistance, claims against

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

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

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

FREEDOM OF ACCESS  The third of the  Speaker's petitions is for freedom of

access to Her Majesty whenever occasion  shall require. This claim is medieval  (probably fourteenth century) in origin,  and in an earlier form seems to have been  sought in respect of the Speaker himself  and to have encompassed also access to  the Upper House..

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

PRIVILEGE WITH RESPECT TO THE  CONSTITUTION OF THE HOUSE  It is a  privilege of the House of Commons to  provide for its own proper constitution as  established by law. The origins of this  privilege are to be found in the sixteenth  century."  

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

it is more convenient to reserve the term  "privilege" to certain fundamental rights  of each House which are generally  accepted as necessary for the exercise of  its constitutional functions. The  distinctive mark of a privilege is its  ancillary character. The privileges of  Parliament are rights which are  "absolutely necessity for the due  execution of its powers". They are enjoyed  by individual Members, because the  House cannot perform its functions  without unimpeded use of the services of  its Members; and by each House for the  protection of its Members and the  vindication of its own authority and  dignity [May's Parliamentary Practice, pp.  42-43]."

According to May, origin of the modern Parliament in  England consisted in its judicial functions. It was Maitland  who was the first to point out in his introduction to the  Parliament Roll of 1305 that Parliament at that time was the  King's "Great Court" and thus, inter alia, the highest Court of  royal justice.  It is now generally accepted that a strong  judicial streak in the character of the earliest Parliament was  noticeable throughout the earlier period of English history,  reflected by the fact that dispensation of justice was one of its  chief functions in the eyes of the subjects of the realm, aside  from the political and economic business. Out of the two chambers of Parliament of United  Kingdom, the House of Lords has continued till the present  times as the Court of Judicature, as part of which function it  has the power to sit as a Court during prorogation and  dissolution. The final appellate jurisdiction vests in the Lords  and, in matters of impeachment, the Lords are the sole judges  of the crime in proceedings that involve the other chamber, the  House of Commons, as the accusers or advocates. While the House of Lords would claim its powers and  privileges on the basis of theory of inheritance and Divine  Right of Kings, the House of Commons was constrained to  wage a fierce struggle against the prerogatives of the Crown  and of the House of Lords to assert and claim its rightful  place.  It was almost a fight for its existence in which the  House of Commons was pitted against not only the Crown and  the House of Lords, but also the judicature which was  regarded as a creature of the King and which wing was

subordinate to the House of Lords that happened to be the  main opponent of the House of Commons.   The dust raised by the bitter struggle waged by the  House of Commons to assert its privileges finally settled when  equilibrium was reached in the 19th century with limits of  privileges being prescribed and accepted by Parliament, the  Crown and the courts in England.  The position that emerged  against this backdrop has been noticed by this court in the  following words in the UP Assembly Case:- "The two Houses are thus of equal  authority in the administration of a  common body of privileges. Each House,  as a constituent part of Parliament,  exercised its own privileges independently  of the other. They are enjoyed, however,  not by any separate right peculiar to  each, but solely by virtue of the law and  custom of Parliament. Generally  speaking, all privileges properly so called,  appertain equally to both Houses. They  are declared and expounded by each  House; and breaches of privilege are  adjudged and censured by each; but  essentially, it is still the law of Parliament  that is thus administered. It is significant  that although either House may expound  the law of Parliament, and vindicate its  own privileges, it is agreed that no new  privilege can be created. This position  emerged as a result of the historic  resolution passed by the House of Lords  in 1704. This resolution declared "that  neither House of Parliament have power,  by any vote or declaration, to create to  themselves new privileges, not warranted  by the known laws and customs of  Parliament". This resolution was  communicated by the House of Lords to  Commons and assented to by them  [May's Parliamentary Practice, p.47].  Thus, there can be no doubt that by its  resolutions, the House of Commons  cannot add to the list of its privileges and  powers."

The resolution of 1704, mentioned in the passage  extracted above, had been adopted by the House of Lords in

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

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

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

The privilege of freedom of speech under Article 9 of the  Bill of Rights includes the freedom of the member to state  whatever he thinks fit in debate, howsoever offensive it may be  to the feelings, or injurious to the character, of individuals. He  is protected by his privilege from any action for libel, as well as  from any question or molestation [May's Parliamentary  Practice, 23rd edn., pp 96-97]. The privilege of freedom from  arrest has never been allowed to interfere with the  administration of criminal justice or emergency legislation. In early days of its struggle the House of Commons would  assert a claim to all kinds of privileges for itself and its  members but in the course of time many of such privileges  either fell into disuse or faded out of existence or came to be  controlled by legislation.  Examples in this context can be  given of the privilege of freedom from being impleaded,  limitation put by the Parliamentary Privilege Act, 1770 on the  freedom from arrest and the privilege of exemption from jury  service.  What is important for purposes at hand is that the  major privileges properly described as privileges essential for  the efficient functioning of the House still continue in force. As per May's Parliamentary Practice [23rd edn., pp. 128]  contempt came to be defined as "any act or omission which  obstructs or impedes either House of Parliament in the  performance of its functions or which obstructs or impedes  any member or officer of such House in the discharge of his  duty, or which has a tendency, directly or indirectly, to  produce such results even though there is no precedent of the  offence". Power to punish and commit for contempt is one of the  privileges asserted by both Houses of Parliament in United  Kingdom. In the context of power to punish for contempt, this  court found in the UP Assembly Case (at page 461) as under:- "..Since the decision of the Privy  Council in Kielley v. Carson [4 Moore P.C.  63] it has been held that this power is  inherent in the House of Lords and the  House of Commons, not as a body with  legislative functions, but as a descendant  of the High Court of Parliament and by  virtue of the lex et consuetudo parliamenti  [May's Parliamentary Practice, p.44].  Historically, as originally the weaker  body, the Commons had a fiercer and  more prolonged struggle for the assertion  of their own privileges, not only against  the Crown and the courts, but also

against the Lords. Thus the concept of  privilege which originated in the special  protection against the King began to be  claimed by the Commons as customary  rights, and some of these claims in the  course of repeated efforts to assert them  hardened into legally recognised  "privileges".

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

(see p 161)  an issue never determined  at law  were connected with these  problems. Yet whatever the legal or  constitutional niceties, in practice the  House on many occasions in the  sixteenth and seventeenth centuries  exercised its power to impose fines (see p  161) and imprison offenders. These  offenders might include Members of the  House itself or non-members, the latter  comprising sheriffs, magistrates and even  judges of the superior courts."

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

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

"121. In this connection, it is essential to  bear in mind the fact that the status, of a  superior Court of Record which was

accorded to the House of Commons, is  based on historical facts to which we  have already referred. It is a fact of  English history that the Parliament was  discharging judicial functions in its early  career. It is a fact of both historical and  constitutional history in England that the  House of Lords still continues to be the  highest Court of law in the country. It is a  fact of constitutional history even today  that both the Houses possess powers of  impeachment and attainder. It is obvious,  we think, that these historical facts  cannot be introduced in India by any  legal fiction. Appropriate legislative  provisions do occasionally introduce legal  fictions, but there is a limit to the power  of law to introduce such fictions. Law can  introduce fictions as to legal rights and  obligations and as to the retrospective  operation of provisions made in that  behalf, but legal fiction can hardly  introduce historical facts from one  country to another."  (Emphasis supplied)

In the UP Assembly Case, it was settled by this court  that a broad claim that all the powers enjoyed by the House of  Commons at the commencement of the Constitution of India  vest in an Indian legislature cannot be accepted in its entirety  because there are some powers which cannot obviously be so  claimed.  In this context, the following observations appearing  at page 448 of the judgment should suffice:- ".Take the privilege of freedom of  access which is exercised by the House of  Commons as a body and through its  Speaker "to have at all times the right to  petition, counsel, or remonstrate with  their Sovereign through their chosen  representative and have a favourable  construction placed on his words was  justly regarded by the Commons as  fundamental privilege" [Sir Eskine May's  Parliamentary Practice (16th ed.) p.86]. It  is hardly necessary to point out that the  House cannot claim this privilege.  Similarly, the privilege to pass acts of

attainder and impeachments cannot be  claimed by the House. The House of  Commons also claims the privilege in  regard to its own Constitution. This  privilege is expressed in three ways, first  by the order of new writs to fill vacancies  that arise in the Commons in the course  of a parliament; secondly, by the trial of  controverted elections; and thirdly, by  determining the qualifications of its  members in cases of doubt [ibid, p. 175].  This privilege again, admittedly, cannot  be claimed by the House. Therefore, it  would not be correct to say that all  powers and privileges which were  possessed by the House of Commons at  the relevant time can be claimed by the  House."

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

Indian Constitutional History

The East India Company Act, 1784 formed the basis of  the Indian Constitution till 1858.  It created Commissioners  for the affairs of India to be appointed at home by the King.   This was followed by the Charter Act, 1833 that provided for a  legislative authority. In this dispensation, the meetings of the  Governor-General's Council for law-making were distinguished  from the meetings of the Council for discharging other, i.e.,  executive functions. Macaulay, as Law Member of the  Governor General Council, against the backdrop of the  insistence by the Executive Councilor of the Governor  General's Council that all the drafts of laws should be fully  considered by the Executive Council before they were laid  before the Legislative council for final passage, in his speech of  13th June, 1835, described the deliberative chamber as the  "supreme Legislative Council", and said "when the Parliament  gave us the power of legislating it gave us also, by necessary  implication, all the powers without which it is impossible to  legislate well", referring in this context particularly to power  "to correspond directly with the subordinate Governments";  "directly call for information from any public functionary"; and  "require the attendance of the military or financial secretary".

An expansion of the Legislative Council of India was provided  by the Charter Act of 1853, followed by certain further  additions by the Acts of 1854 and 1861.  The period 1915-1950 indeed marks a definite advance in  the history of the development of parliamentary privilege in  India. By the Government of India Act 1915, the entire  position of Parliamentary privilege that obtained before that  time was consolidated. The Government of India Act, 1915,  provided in Section 63 that the Indian Legislature shall consist  of the Governor-General and "two chambers, namely, the  Council of State and the Legislative Assembly".   Section 67 of the Act related to the business and  proceedings of the Indian Legislature.  Sub-Section (1) enabled  provision to be made by rules, inter alia, "for regulating the  course of business and the preservation of order in the  chambers of the Indian legislature"; "as to the persons to  preside at the meetings of the Legislative Assembly in the  absence of the president and the deputy president"; for  "quorum"; and "for prohibiting or regulating the asking of  questions on, and the discussion of any subject specified in  the rules". Sub-Section (6) allowed "Standing orders" to be  made providing for the conduct of business and the procedure,  to be followed in either chamber of the Indian legislature in so  far as these matters are not provided for by rules made under  this Act.  Sub-Section (7) declared "Subject to the rules and  standing orders affecting the chamber" that there shall be  "freedom of speech in both chambers of the Indian legislature";  and that no person shall "be liable to any proceedings in any  court by reason of his speech or vote in either chamber, or by  reason of anything contained in any official report of the  proceedings of either chamber". The Government of India Act 1919 brought about  material changes in the Government of India Act 1915.  The  legislature now ceased to be part of the Executive and stood  on its own.  It was no longer an expanded Governor-General's  Council with additional members.  The Governor General and  the Executive Councilor ceased to be ex-officio members of the  Legislative Council. The bicameral Indian Legislature would  consist of both nominated and elected members. Section 65 of the Government of India Act 1915, as  amended in 1919, provided for the powers of the Indian  Legislature, subject to the specific prohibition that it shall not  have the powers, inter alia, to make laws  "unless expressly so  authorized by Act of Parliament (of United Kingdom)", amongst  others, "affecting the authority of Parliament, or any part of  the unwritten laws or constitution of the United Kingdom of  Great Britain and Ireland whereon may depend in any degree

the allegiance of any persons to the Crown of the United  Kingdom, or affecting the sovereignty or domination of the  Crown over any part of British India". The powers of legislation  of the local legislatures were defined more or less similarly in  Section 80 A. 'Parliamentary Privilege in India' by Prititosh Roy (1991),  in Chapter-4, titled 'Historical Background of Parliamentary  Privilege in India (1915-1950)' mentions, at page 53, about the  Report dated 3rd December 1924 of  the Reforms Inquiry  Committee under the chairmanship of Sir Alexander  Muddiman (the Home Member), which included as members  Sir Tej Bahadur Sapru and Mr. Jinnah, which had examined  the issue of powers of the Indian Legislature and gave vent to  the hope and aspiration of bringing legislatures in India "at  par with the House of Commons" and that "eventually no  doubt similar provision will be made in the Constitution of  British India". On the basis of the Report, the Indian  Legislature passed the Legislative Members Exemption Act,  1925 (Act XXIII of 1925) which granted two new parliamentary  privileges; viz. the privilege of exemption of the legislator from  jury service and the privilege of freedom from arrest. Theses  new privileges would be reflected in the Code of Criminal  procedure 1898 by incorporation in Section 323 and insertion  of Section 135A respectively.  Prititosh Roy mentions in "Parliamentary Privilege in  India" [p-55], the Legislative Assembly created under  Government of India Act, 1919 witnessed a number of  instances wherein the privileges of a legislative body were  asserted. These include the adjournment motion moved on  21st January 1927 by Pt. Motilal Nehru to discuss the conduct  of the Government in detaining Shri Satyendra Chandra Mitra,  an elected member of the House, on the ground it  tantamounts to a breach of the Privileges of the House and the  adjournment motion in the Legislative Assembly moved by  Shri Gaya Prasad Singh on 4th September, 1928 against the  Editor of the Times of India having made an attack on the  President of the House, though disallowed but with the  President having held that it is the inherent right of any  assembly to defend itself against outside attacks and it is  perfectly open in a proper cause for the House to table a  substantive motion and pass a vote of censure or  condemnation on the attacker. Prititosh Roy also mentions at Page 56 an interesting  episode involving the Indian Press Act, 1931 that was enacted  on 13th February, 1932. In its context, a question arose before  the Legislative Assembly under Government of India Act, 1919  regarding breach of the privileges upon a notice of motion

having appeared in the Press given by a member.   Acknowledging that there was a convention in the House of  Commons against release by a member to the Press for  publication questions for resolutions before they are admitted  by the chair and that breach thereof was treated as a serious  breach of the privilege of the House of Commons which had  ample powers to deal with the member in question, the  President of Indian Legislative Assembly noted that  "unfortunately neither this House nor the Spokesmen have  such powers" and commended that "this well established  convention, which is observed in the House of Commons  should also be observed as one of the conventions of this  House". Prititosh Roy refers at Pages 58-59 to Debates of Indian  Legislative Assembly [22nd January, 1935, p. 81 ff], which  quote yet another incident that needs to be taken note of. Shri  N.C. Bardaloi had raised an issue about the conduct of the  Government in preventing Mr. Sarat Chandra Bose, an elected  Member of the House, from attending to his duties as Member  and thereby seriously infringing the privileges of the House.  Sir N.N. Sircar, the then Law Member of the Government of  India replied stating that the House had no power to punish  for its breach of privilege. The Government of India Act, 1935 came into force on 1st  April, 1937 and was operative till 14th August, 1947.  Sections  28 and 71 of the Government of India Act, 1935 dealt with the  subject of Privileges etc. of members of Federal Legislature and  Provincial Legislatures respectively.   The provision in Sub-Section (1) of Section 71 extended  the freedom of speech and immunity to speech or vote even in  the Committees of the Legislature and also covering  publication under the authority of a Chamber of the  Legislature of the House. Sub-Section (1) of Section 71, inter  alia, declared that "Subject to the provisions of this Act and to  rules and standing orders regulating the procedure of the  Legislature there shall be freedom of speech in every Provincial  Legislature" and that every member shall be entitled to  immunity from "any proceedings in any court in respect of  anything said or any vote given by him in the Legislature or  any committee thereof".  Sub-Section (2) of Section 71 of the Government of India  Act, 1935, for the first time, empowered the Provincial  Legislature to pass an Act to define the other privileges of the  members and, pending such legislation, the pre-existing  privileges were confirmed.  Some of the Provincial Legislatures  did legislate or attempt to legislate on this subject. Sub- Section (2) of Section 71 was on lines similar to present Article

194 (3). It read as follows:- "71.(2) In other respects the privileges of  members of a Chamber of a Provincial  legislature shall be such as may from  time to time be defined by Act of the  Provincial Legislature, and, until so  defined, shall be such as were  immediately before the commencement of  this Part of this Act enjoyed by members  of the Legislative Council of the Province."

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

Clearly, the intendment was to restrict the powers and  privileges of Indian Legislatures to remedial action for  unobstructed functioning, severely restricting, or rather  forbidding, the exercise of punitive powers by a House of  Legislature. Similar provisions, mutatis mutandis, were made for the  Central Legislature, called the Federal Legislature, under  Section 28 which, however, never came into force since Part II  of the Act of 1935 concerning the Federation of India never  became operative. Sub-Section (1) of Section 28 of the  Government of India Act, 1935, inter alia, declared that there  shall be "freedom of speech" in the Federal Legislature  "Subject to the provisions of this Act and to the rules and  standing orders regulating the procedure", and that "no  member of the legislature shall be liable to any proceedings in  any court in respect of anything said or any vote given by him  in the Legislature or any Committee thereof".

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

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

It is also necessary to take note of sub-Section (4) of  section 28 of Government of India Act, 1935 since it made the  intention clear that for punitive action in certain matters the  Legislature would have to go before a court. It provided as  follows:- "28. (3). Provision may be made by an Act  of the Federal Legislature for the  punishment, on conviction before a court,

of persons who refuse to give evidence or  produce documents before a committee of  a Chamber when duly required by the  Chairman of the Committee to do so.

Provided that any such Act shall have  effect subject to such rules for regulating  the attendance before such committees of  persons who are, or have been, in the  service of the Crown in India, and  safeguarding confidential matter from  disclosure as may be made by the  Governor General exercising his  individual judgment."

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

the provisions of this or any existing or  future Act of Parliament of the United  Kingdom, or to any order, rule or  regulation made under any such Act."

The Governor General of India issued an Adaptation  Order by which, amongst others, the provisions of Section 28  of the Government of India Act, 1935, excepting the sub- Sections (3) and (4), were brought into force for the first time  for purposes of dominion legislature,. As a result, aside from  the "freedom of speech in the legislature", the law provided  that "in other respects the privileges of the members of the  domain legislature" shall be such as may from time to time be  defined by dominion legislature and, until so defined, should  be such as were immediately before the establishment of the  dominion enjoyed by the members of the Indian legislature   The omission of sub-Section (3) and sub-Section (4) of Section  28 indicated that the restrictions on the exercise of punitive  and disciplinary powers by the legislature were being removed.  As a result of the omission of sub-Sections (3) & (4) of  Section 28 by the Order, the Central legislature became  entitled to pass any Act on the subject of privileges under sub- Section (2) without any restriction and assume punitive and  disciplinary powers similar to those invested in the House of  Commons in England. But then, the Central Legislature did  not pass any law on privileges in exercise of the enabling  powers under Section 28 (2) of Government of India Act, 1935,  as adapted after Independence.   Dr. Ambedker, the Chairman of the Drafting Committee  of the Constitution, while mooting for the Parliamentary  system similar to the one obtaining in England noted, in the  course of debates in the Constituent Assembly, that in the  latter jurisdiction, the parliamentary system relies on the daily  assessment of responsibility of the executive by members of  parliament, through questions, resolutions, no-confidence  motions and debates and periodic assessment done by the  electorate at the time of election; unlike the one in the United  States of America a system far more effective than the periodic  assessment and far more necessary in a country like India.  India thus adopted parliamentary Constitutional traditions.  The concept of parliamentary privileges in India in its  modern form is indeed one of graft, imported from England.   The House of Commons having been accepted by the  Constituent Assembly as the model of the legislature, the  privileges of that House were transplanted into the draft  Constitution through Articles 105 and 194.   Article 85 of the Draft Constitution, which corresponds to

present Article 105, contained the following provision with  respect to parliamentary privileges:- "85.(1) Subject to the rules and standing  orders regulating the procedure of  Parliament, there shall be freedom of  speech in Parliament.

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

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

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

The reference to the House of Commons of the Parliament  of the United Kingdom provoked comment and intense debate.  As is seen from the Constituent Assembly Debates (Volume 8  of 19.5.1949 page 143-149), Shri H.V. Kamath suggested that  draft article 85 should truly rely upon our own precedents, our  own traditions and no importation must be attempted. While  commending reference to be made instead to privileges "as  were enjoyed by the members of the Dominion Legislature of  India immediately before commencement" of the Constitution,  he spoke thus:- "Sir, my knowledge of the various  Constitutions is not as vast or as  profound as that of Dr. Ambedkar, but  relying on my meager knowledge of these

constitutions, I venture to state that this  is the first instance of its kind where  reference is made in the Constitution of a  free country to certain provisions  obtaining in the constitution of another  State.  I see no valid reason why this  should be done.  It may be that the rights  and privileges which we are going to  confer upon the Members of Parliament  of free India will be identical with, or  more or less similar to, those enjoyed by  the Members of the House of Commons in  the United Kingdom.  But may I ask, Sir,  in all humility "Is it necessary or is it  desirable, when we are drafting our own  constitution that we should lay down  explicitly in an article that the provisions  as regards this matter will be like those of  the House of Commons in England?"

It may be argued in support of this  proposition that there is nothing  derogatory to the dignity of our  Constitution or of our State in making  reference to the United Kingdom.  It may  be further reinforced by the argument  that now we have declared India as a full  member of the Commonwealth, certainly  there should be no objection, or any sort  of compunction in referring to the House  of Commons in England.  But may I  suggest for the serious consideration of  the House as to whether it adds  it may  not be derogatory, or detract from the  dignity of the Constitution  but does it  add to the dignity of the Constitution?   We say that such and such thing should  be what it is in the United Kingdom or in  America.  Will it not be far better, far  happier for us to rely upon our own  precedents, or our own traditions here in  India than to import something from  elsewhere and incorporate it by reference  in the Constitution?  Is it not sufficient to  say that the rights and privileges and  immunities of Members shall be such as  have been enjoyed by the Members of the  Constituent Assembly or Dominion

Legislature just before the  commencement of this Constitution?   Personally, I think, Sir, this would be far  better.  I venture to hope that my  honourable Friends in this House will be  inclined to the same view that instead of  quoting or citing the example of the  United Kingdom it would be far better for  us to rely upon the tradition we have  built up here.  Surely, nobody will  dispute the fact that the privileges and  immunities enjoyed by us here today are  in no way inferior to, or worse than, those  enjoyed by members of the House of  Commons in the United Kingdom.

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

Sir Alladi Krishnaswamy Iyer, while replying to the  criticism, stated thus:- "Sir, in regard to the article as it stands,  two objections have been raised, one  based upon sentiment and the other  upon the advisability of making a  reference to the privileges of a House in  another State with which the average  citizen or the members of Parliament here

may not be acquainted with.  In the first  place, so far as the question of sentiment  is concerned, I might share it to some  extent, but it is also necessary to  appreciate it from the practical point of  view. It is common knowledge that the  widest privileges are exercised by  members of Parliament in England. If the  privileges are confined to the existing  privileges of legislatures in India as at  present constituted, the result will be  that a person cannot be punished for  contempt of the House. The actual  question arose in Calcutta as to whether  a person can be punished for contempt of  the provincial legislature or other  legislatures in this country. It has been  held that there is no power to punish for  contempt any person who is guilty of  contempt of the provincial or even the  Central Legislature, whereas the  Parliament in England has the inherent  right to punish for contempt. The  question arose in the Dominions and in  the Colonies and it has been held that by  reason of the wide wording in the  Australia Commonwealth Act as well as  in the Canadian Act, the Parliament in  both places have powers similar to the  powers possessed by the Parliament in  England and therefore have the right to  punish for contempt. Are you going to  deny to yourself that power?  That is the  question.

I will deal with the second objection.   If you have the time and if you have the  leisure to formulate all the privileges in a  compendious form, it will be well and  good. I believe a Committee constituted  by the Speaker on the legislative side  found it very difficult to formulate all the  privileges, unless they went in detail into  the whole working of parliamentary  institutions in England and the time was  not sufficient before the legislature for  that purpose and accordingly the

Committee was not able to give any  effective advice to the Speaker in regard  to this matter.  I speak subject to  correction because I was present at one  stage and was not present at a later  stage. Under these circumstances I  submit there is absolutely no question of  infra dig.  We are having the English  language. We are having our Constitution  in the English language side by side with  Hindi for the time being.  Why object only  to reference to the privileges in England?

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

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

Dr. Ambedkar when invited  by the President to speak,  expressed satisfaction with the reply already given by Mr.  Alladi by saying "Mr. Alladi and others have already given the  reply, and I will be saying mostly the same thing, probably in a  different way".   The amendment moved by Prof. Shah was negatived by  the Constituent Assembly on 19th May 1948.  After adoption of  a minor amendment, for including the Committees of the  Houses of Parliament, Draft Article 85 (present Article 105)  was adopted and added to the Constitution. Article 169 of the Draft Constitution, which corresponds  to present Article 194, contained similar provision with respect  to privileges of the State Legislatures and came up for  discussion before the Constituent Assembly on 3rd June 1949.  The speeches made on the occasion are available at pages

578-584 of the Constituent Assembly Debates (Volume 8). Shri H.V. Kamath took exception in the following words:- "Mr. President, I shall, by your leave, say  a few words with respect to clause (3) of  this article.  I do not propose to repeat  what I said on an earlier occasion when  we were discussing the corresponding  clause relating to the privileges of  members of the Central Parliament.  But  I should like to invite the attention of Dr.  Ambedkar and also of the House to the  reaction among the people as well as in  the Press to the clause that we adopted  on that occasion. I have no doubt in my  own mind that Dr. Ambedkar keeps his  eyes and ears open, and cares to read  some of the important papers daily or at  least has them read to him daily. Soon  after this clause relating to the privileges  of members of Parliament was adopted in  this House, most of the Press was critical  of the way in which we had dealt with the  matter. .. Britain, as the  House is aware, has an unwritten  Constitution though this particular  measure may be written down in some  document. .. Many of the  Members here who spoke on that  occasion remarked that they did not  know what the privileges of the Members  of the House of Commons were,  .. They could have at least  drafted a schedule and incorporated it at  the end of the Constitution to show what  the privileges of the members of the  House of Commons were. That was not  done, and simply a clause was inserted  that the privileges obtaining there will  obtain here as well.  Nobody knows what  those are, and a fortiori nobody knows  what privileges we will have. Our  Parliament presided over by Mr.  Mavalankar has adopted certain rules of  business and procedure tentatively, and  has also appointed or is shortly going to  appoint a Committee of Privileges. I  wonder why we could not have very

usefully and wisely adopted in our  Constitution something to this effect, that  whatever privileges we enjoy as members  of the Central Parliament will be enjoyed  by members of the Legislature in the  States.  If at all there was a need for  reference to any other Constitution. I  think it was very unwise on the part of  the Drafting Committee to refer to an  unwritten Constitution, viz., the  Constitution of Great Britain. There is the  written Constitution of the U.S.A., and  some of us are proud of the fact that we  have borrowed very much from the  American Constitution. May I ask Dr.  Ambedkar whether the privileges of the  Members of the House of Commons in the  United Kingdom are in any way superior  to or better than the privileges of the  members of the House of Representatives  of the United States?  If they are, I should  like to have enlightenment on that point.  If they are not, I think the reference to an  unwritten Constitution is not at all  desirable. ..If necessary let us put in  a schedule to our Constitution, and say  here in this article that the privileges and  rights are as specified in the Schedule at  the end.   I would any day prefer a  definite schedule in the Constitution  showing what privileges shall be enjoyed  by members of the Legislatures and of  Parliament. This particular clause, to my  mind, should be recast. We have passed  one clause on an earlier occasion, but  that is no reason why we should  perpetrate the same mistake over and  over again. I would, therefore beg of Dr.  Ambedkar and his wise team of the  Drafting Committee and the House to  revise this clause, and if necessary, to go  back to the other clause, if they are  convinced of the wisdom of this course,  and revise that also accordingly, and  proceed in a saner and a wiser manner."     Dr. B.R. Ambedkar, Chairman of the Drafting Committee,

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

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

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..  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 to  May's Parliamentary Practice and I have  noticed that practically 8 or 9 columns of  the index are devoted to the privileges  and the immunities of Parliament. So  that if you were to enact a complete code  of the privilege and immunities of  Parliament based upon what May has to  say on this subject, I have not the least  doubt in my mind that we will have to  add not less than twenty or twenty five  pages relating to immunities and  privileges of Parliament. I do not know  whether the Members of this House  would like to have such a large  categorical statement of privileges and  immunities of Parliament extending over  twenty or twenty five pages. That I think  is one reason why we did not adopt that  course.

The other course is to say, as has

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

The third course open to us was the  one which we have followed, namely, that  the privileges of Parliament shall be the  privileges of the House of Commons. It  seems to me that except for the  sentimental objection to the reference to  the House of Commons I cannot see that  there is any substance in the argument  that has been advanced against the  course adopted by the Drafting  Committee. I therefore suggest that the  article has adopted the only possible way  of doing it and there is no other  alternative way open to us. That being so,  I suggest that this article be adopted in  the way in which we have drafted it." (Emphasis supplied)   Dr. Ambedkar thus reiterated the justification given by

Mr. Alladi earlier, adding that the cataloguing of all powers  and privileges would have added to the volume of the  Constitution and that the course of adopting the powers and  privileges of the existing legislature under Government of India  Act, 1935 was inadvisable as that body had hardly any rights  available. The draft Article 169 (corresponding to present  Article 194) was adopted after the above mentioned  explanation and made part of the Constitution. The Constitution thus adopted through Articles 105 and  194, for the Parliament and the State Legislatures respectively,  the same powers, privileges and immunities as vested at the  commencement of the Constitution in the House of Commons  of the Parliament of United Kingdom, until they were "defined  by law". From this perspective, the learned Additional Solicitor  General is not wrong when he says that the establishment of  privileges in India at par with those existing in the House of  Commons was not reflective of a colonial legacy but, it was an  assertion of the truly sovereign nature of the Indian  Parliament. The above discussion shows that the reference to the  privileges of the House of Commons was justified on grounds  of self-assertion that free India and its Parliament are as great  as the Parliament of Great Britain.  The replies above quoted  also show that the drafting committee was more concerned  about giving to the Parliament the widest privileges as  exercised by members of Parliament in England, including the  power to punish for contempt of the House. Full fledged  provisions listing out the powers and privileges was not  possible as there was not sufficient time or the leisure to  formulate all of them in a compendious form, as had been  found by a Committee constituted by the Speaker on the  legislative side. That is why a wide scope and unfettered  discretion was being left for the future Parliament of India to  set up the proper machinery for formulating privileges, which  could be enlarged or curtailed. The adoption of the powers and  privileges of the House of Commons was only as a temporary  measure, following the practice that had been followed in  Australia, in Canada and in other Dominions with advantage  to secure complete freedom of speech and also the  omnipotence of the legislature in every respect. We would like to dispose of here itself a small argument  put across by learned Counsel for the Petitioners. The  argument is that the fact that the provisions of Article 105  were amended by the Constitution (44th Amendment) Act,  1978, thereby deleting the reference to the House of Commons  with effect from 20th June 1979, the subject of powers and  privileges are to be construed and pegged to that date and

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

such of them as relate to the regulation of  the procedure of the legislature. The rules  and standing orders may regulate the  procedure of the legislature and some of  the provisions of the Constitution may  also purport to regulate it; these are, for  instance, Articles 208 and 211. The  adjectival clause "regulating the  procedure of the legislature" governs both  the preceding clauses relating to "the  provisions of the Constitution" and "the  rules and standing orders". Therefore,  clause (1) confers on the legislators  specifically the right of freedom of speech  subject to the limitation prescribed by its  first part. It would thus appear that by  making this clause subject only to the  specified provisions of the Constitution,  the Constitution-makers wanted to make  it clear that they thought it necessary to  confer on the legislators freedom of  speech separately and, in a sense,  independently of Article 19(1)(a). If all  that the legislators were entitled to claim  was the freedom of speech and  expression enshrined in Article 19(1)(a), it  would have been unnecessary to confer  the same right specifically in the manner  adopted by Article 194(1); and so, it  would be legitimate to conclude that  Article 19(1)(a) is not one of the  provisions of the Constitution which  controls the first part of clause (1) of  Article 194."  (Emphasis supplied)

Taking note of Pandit Sharma (I), it was reiterated in the  UP Assembly Case that clause (1) of Article 194 no doubt  makes a substantive provision of the said clause subject to the  provisions of the Constitution; but in the context, those  provisions cannot take in Article 19(1)(a), because latter article  does not purport to regulate the procedure of the legislature  and it is only such provisions of the Constitution which  regulate the procedure of the legislature which are included in  the first part of Article 194(1) On the provisions of clause (2) of Article 194, this is what  the Court found:-

"It is plain that the Constitution-makers  attached so much importance to the  necessity of absolute freedom in debates  within the legislative chambers that they  thought it necessary to confer complete  immunity on the legislators from any  action in any court in respect of their  speeches in the legislative chambers in  the wide terms prescribed by clause (2).  Thus, clause (1) confers freedom of  speech on the legislators within the  legislative chamber and clause (2) makes  it plain that the freedom is literally  absolute and unfettered."   (Emphasis supplied)

In the context of the all important clause (3) of Article  194, the Court observed thus:- " The Constitution-makers  must have thought that the legislatures  will take some time to make laws in  respect of their powers, privileges and  immunities. During the interval, it was  clearly necessary to confer on them the  necessary powers, privileges and  immunities. There can be little doubt that  the powers, privileges and immunities  which are contemplated by clause (3), are  incidental powers, privileges and  immunities which every legislature must  possess in order that it may be able to  function effectively, and that explains the  purpose of the latter part of clause (3)."  (Emphasis supplied)

The above quoted observations squarely apply to the  corresponding clauses of Article 105 of the Constitution. In the context of the noticeable omission in other clauses,  including clause (3), of the expression "Subject to the  provisions of this Constitution" as used in clause (1) of Article  194, this Court felt: ".all the four clauses of Article  194 are not in terms made subject to the  provisions contained in Part III. In fact,  clause (2) is couched in such wide terms  that in exercising the rights conferred on  them by clause (1), if the legislators by

their speeches contravene any of the  fundamental rights guaranteed by Part  III, they would not be liable for any action  in any court. Nevertheless, if for other  valid considerations, it appears that the  contents of clause (3) may not exclude  the applicability of certain relevant  provisions of the Constitution, it would  not be reasonable to suggest that those  provisions must be ignored just because  the said clause does not open with the  words "subject to the other provisions of  the Constitution". In dealing with the  effect of the provisions contained in  clause (3) of Article 194, wherever it  appears that there is a conflict between  the said provisions and the provisions  pertaining to fundamental rights, an  attempt will have to be made to resolve  the said conflict by the adoption of the  rule of harmonious construction" (Emphasis supplied)

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

this Court in UP Assembly Case opined thus:- ". 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?"  (Emphasis supplied)

The argument of availability of all the powers and  privileges  has been rejected in UP Assembly Case with  reference to illustrations of some powers claimed by the House  of Commons as mentioned in May's Parliamentary Practice  (pages 86 & 175 in 16th Ed.), but which cannot be claimed by  the Indian legislatures, including the privilege of freedom of  access which is exercised by the House of Commons as a body  and through its Speaker "to have at all times the right to  petition, counsel, or remonstrate with their Sovereign through  their chosen representative and have a favourable  construction placed on his words was justly regarded by the  Commons as fundamental privilege"; the privilege to pass acts  of attainder and impeachments; and the privilege in regard to  its own Constitution which is expressed in three ways, first by  the order of new writs to fill vacancies that arise in the  Commons in the course of a parliament; secondly, by the trial  of controverted elections; and thirdly, by determining the  qualifications of its members in cases of doubt.  Plea of negation by other Constitutional provisions     Before we consider the question whether the power of  expulsion can be read within Article 105(3) or not, it is  necessary first to decide the question : will reading such a  power under Article 105(3) violate any other provisions of the  constitution.  In other words, whether power of expulsion  would be inconsistent with other provisions of the

Constitution of India. According to the Petitioners the power of expulsion is  inconsistent with the following provisions of the Constitution:- (i) The provisions relating to vacancy and disqualifications  [Articles 101 - 103]; (ii) The provisions relating to salaries and allowances of  members and their right to hold office till the end of the  term [Article 106 and Article 82(3)]; (iii) Citizen's right to vote and right of representation of their  constituency in Parliament ; and (iv) The fundamental rights of the MPs. (i) Provisions relating to vacancy and disqualification: The Petitioners have relied on Articles 101, 102 and 103  of the Constitution in support of their contention.  The  submission is that these Articles (relating to vacancy and  disqualification) are exhaustive regarding the termination of  membership of the Parliament and that no additional ground  can exist based on which the membership of a sitting Member  of Parliament can be terminated.  Articles 101, 102 and 103  appear under the sub-heading "Disqualifications of Members"  in Chapter II of Part V of the Constitution.  Learned counsel for the Petitioners submit that since the  Parliament can create an additional disqualification by law, it  was open to it to pass a law seeking to disqualify from  continuing the membership of such members as are guilty of  conduct unworthy of a member. Such a law not having been  passed, the petitioners submit, the termination of membership  cannot take place through a resolution of the House  purporting to act under Article 105(3).   Articles 190 and 191  which pertain to the vacation of seats and disqualifications for  membership of State legislatures, correspond to, and are on  identical terms as, Articles 101 and 102.  It is necessary to understand the exact import of the  terms 'vacancy', 'disqualification' and 'expulsion'. These terms have different meanings and they do not  overlap. Disqualification strikes at the very root of the  candidate's qualification and renders him or her unable to  occupy a member's seat. Expulsion, on the other hand, deals  with a person who is otherwise qualified, but in the opinion of  the House of the legislature, unworthy of membership. While  disqualification operates to prevent a candidate from re- election, expulsion occurs after the election of the member and  there is no bar on re-election. As far as the term 'vacancy' is  concerned, it is a consequence of the fact that a member  cannot continue to hold membership. The reason may be any  one of the several possible reasons which prevent the member  from continuing membership, for example disqualification,

death or expulsion. In view of above, it is not possible to accept the  submission that the termination of membership can be  effected only in the manner laid down in Articles 101 and 102.  While these articles do speak of qualifications for and  continuation of membership, in our view they operate  independently of Article 105(3). Article 105(3) is also a  constitutional provision and it demands equal weight as any  other provision, and neither being 'subject to the provisions of  the constitution', it is impossible to accord to one superiority  over the other. We cannot accept the submission that the  provisions in Articles 101 or 102 restrict in any way the scope  of 194(3). There is no reason for them to do so. Though  disqualification and expulsion both result in the vacancy of a  seat, there is no necessity to read one in a way that restricts  the scope of the other. The expulsion on being found unfit for  functioning within the House in no way affects the  qualifications that a member must fulfill, and there is no  reason for the latter to affect expulsion.  Both of the provisions  can operate quite harmoniously. We fail to see any  inconsistency between the two. Nor do we find any reason to  support the claim that provisions under Articles 101 and 102  are exhaustive and for that reason,  Article 105(3) be read as  not to include the power of expulsion. Further, death as a  cause for vacancy of a seat is also not mentioned in the  relevant provisions.  Similarly, it is not necessary for expulsion  to be mentioned, if there exists another constitutional  provision that provides for such a power.  It is obvious that  upon expulsion, the seat of the member is rendered vacant  and so no specific recognition of this provision is necessary  within the provision relating to vacancy. Thus, the power of  expulsion cannot be held to be inconsistent with these  provisions. While interpreting Article 194, three High Courts have  rightly rejected similar contentions {Yashwant Rao  Meghawale v. Madhya Pradesh Legislative Assembly [AIR  1967 MP 95], Hardwari Lal [ILR (1977) 2 P&H 269 (FB)], K.  Anbazhagan v. TN Legislative Assembly [AIR 1988 Mad.  275].  An almost identical question was raised in an  Australian case of Armstrong v. Budd [(1969) 71 SR 386  (NSW)].  The question in that case was whether Section 19 of  the Constitution Act which provided for circumstances of  vacation of seats of Legislative Councillors was exhaustive so  as to prevent the power of expulsion. The Court rejecting the  argument that section 19 was exhaustive stated:- "..but cannot be argued that s. 19  constitutes a complete code for the

vacation of a seat or contains the only  criteria upon which a vacancy can  occur"

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

It was further argued by the Petitioners, that provisions  in the constitution relating to salary and the term for which

they serve in the House are constitutional rights of the  members and the power of expulsion, by terminating their  membership violates these constitutional rights. The relevant provisions in the constitution are Article 106  on the subject of salaries and Article 83(2) in relation to the  duration of the Houses of Parliament.  The Petitioners have relied on these above constitutional  provisions and submitted that an expulsion of a Member of  Parliament would result in the violation of the above rights  guaranteed to him. The claim of the other side is that the  decision to expel does not violate these rights. Firstly, it has  been argued that the article laying down the duration of the  House does not guarantee a term for the member. Various  circumstances have been pointed out under which the term  held by a member can be much less than five years, regardless  of what is stated in Article 83(2). Secondly, it has been argued  that Article 106, which lays down provisions for the salary of  the member, is dependent upon the person's membership. It is  only as long as the person continues to be a member that he  can draw the salary. When the membership terminates, the  provisions of Article 106 become inapplicable. Similar arguments were made in the case of K. Anandan  Nambiar v. Chief Secretary, State of Madras [AIR 1966 SC  657].  In that case, certain members of Parliament were  detained by the Government of Madras and one of the grounds  on which they challenged their detention was the violation of  their constitutional rights. In support of this contention, the  Petitioners relied on various provisions relating to members  and proceedings of the Parliament including Articles 79, 85,  86 and 100. They claimed that they continued to exercise all  the 'constitutional rights' that flow from membership unless  the member is disqualified. The contention was that "if a  Member of Parliament incurs a disqualification, he may cease  to be such member, but if he continues to be qualified to be a  member, his constitutional rights cannot be taken away by  any law or order". This Court rejected this argument holding  that:-  ".they are not constitutional rights in  the strict sense, and quite clearly, they  are not fundamental rights at all" (Emphasis supplied)

Although this case involved detention and the arrest of  the members of Parliament, which are matters relating to field  distinct from that of the rights claimed in the cases at hand,  we are of the view that the logic in the case applies equally to  the present situation. In this case certain provisions regarding

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

As far as the provision for the duration of the House is  concerned, it simply states that the normal duration of a  House is to be five years. It cannot be interpreted to mean that  it guarantees to the members a term of five years. The  Respondents have correctly pointed out that a member does  not enjoy the full five-year term under various circumstances;  for example when he or she is elected mid-term, when the  term of the House is cut short by dissolution, when the  member stands disqualified or the seat is rendered vacant. We  find that a correct view in this regard has been taken in K.  Anbazhagan, in line with the view expressed by this Court in  K. Anandan Nambiar. If the provisions mentioned by the  petitioners were actually to create rights in respect of  members, then each of the above situations would be liable to  be challenged for their violation.  This quite obviously is not  what is intended by the Constitution. Expulsion is only an  additional cause for the shortening of a term of a member. Further, as far as the provision relating to the salary of  the member is concerned, it is quite absurd to claim that  because the Constitution makes a provision for salaries, the  power of the House to expel is negated since the result would  be that the member would no longer be paid. Salaries are  obviously dependent upon membership, and the continuation  of membership is an independent matter altogether. The  termination of membership can occur for a variety of reasons

and this is at no point controlled by the fact that salaries are  required to be paid to a member. Thus, in our view, the above provisions do not negate the  power of expulsion of the House, and there is no inconsistency  between the House's power of expulsion and the said  provisions. (iii) The right of the constituency to be represented and  the right to vote:

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

constituency from electing that member once again. Thus, we hold that the power of expulsion does not  violate the right of the constituency or any other democratic  principles. (iv) Fundamental rights of the member: Lastly, it has been contended by the Petitioners that the  power of expulsion violates the fundamental rights of the  member. It was argued that the power of expulsion violates  Article 19(1)(g), which guarantees the right to 'practise any  profession, or to carry on any occupation trade of business'. It  was submitted that this right can only be curtailed by a law in  the interest of general public and that producing the same  result by a resolution of the House is impliedly barred. It was  also contended that Article 21, which includes the right to  livelihood was violated, since it can only be restricted by a  'procedure established by law'. We are not impressed with any of these contentions of  the petitioners.  Even if it were to be assumed these rights  apply, we do not believe that they could prevent reading the  power of expulsion within Article 105(3). First, it is to be remembered that 105(3) is itself a  constitutional provision and it is necessary that we must  construe the provisions in such a way that a conflict with  other provisions is avoided. We are of the view that where  there is a specific constitutional provision as may have the  effect of curtailing these fundamental rights if found  applicable, there is no need for a law to be passed in terms of  Article 19(6). For example, Article 102 relating to  disqualifications provides that members who are of unsound  mind or who are undischarged insolvents as declared by  competent courts are disqualified. These grounds are not  mentioned in the Representation of Peoples Act, 1951. Though  this provision would have the effect of curtailing the rights  under Article 19(1)(g), we doubt that it can ever be contended  that a specific law made in public interest is required.  Similarly, if Article 105(3) provides for the power of expulsion  (though not so expressly mentioned), it cannot be said that a  specific law in public interest is required. Simply because the  Parliament is given the power to make law on this subject is  no reason to say that a law has to be mandatorily passed,  when the Constitution itself provides that all the powers of the  House of Commons vest until such a law is made.  Thus, we  find that Article 19(1)(g) cannot prevent the reading of power of  expulsion under Article 105(3). Finally, as far as Article 21 is concerned, it was  submitted that the 'procedure established by law' includes the  rules relating to the Privileges Committee, etc., which were not

followed and thus the right was violated. In our view, this does  not prevent the reading of the power to expel in Article 105(3).  It is not possible to say that because a 'procedure established  by law' is required, it will prevent the power of expulsion  altogether and that every act of expulsion will be contrary to  the procedure established by law.  Whether such a claim is  maintainable upon specific facts of each case is something  that will have to be considered when the question of judicial  review is taken up. At this stage, however, a blanket ban on  the power of expulsion based on Article 21 cannot be read in  the Constitutional provisions. This is an issue that may have a  bearing on the legality of the order. But, it cannot negate the  power of expulsion. In the light of the above discussion, we hold that the  power of expulsion does not come into conflict with any of the  constitutional provisions and thus cannot be negated on this  basis.  Let us now consider the argument in relation to the  power of self composition of House of Commons. Power of self composition  

The history of England is replete with numerous  instances wherein the power of expulsion was exercised by the  House of Commons. It has been strenuously argued by          Mr.Jethmalani and Mr.Lekhi that all the powers and privileges  of the House of Commons have not been inherited by the  legislative organ under the Constitution of India and power of  expulsion is one such power.  To consider this contention, it is  necessary to find out the true nature and character of the  power of expulsion claimed by the House of Commons. It is true that certain privileges of the House of Commons  are not available to any legislative body in India, whether at  the Union level or in the States, even under clauses (3) of  Articles 105 or 194 of the Constitution. The case of the petitioners is that the House of Commons  derives the power to expel its members solely from its privilege  of regulating its composition, and from no other source. In  other words, they submit that the power of expulsion has  always been claimed and exercised by the House of Commons  as one that stems from the power of the House of Commons to  determine its own composition including the fitness of elected  members to remain members. Power of expulsion is a facet of  and is part & parcel of this basic privilege of the House of  Commons to provide for and regulate its own Constitution.   The House of Commons has always claimed an unrestricted  and un-canalized power of expelling anyone of its members for  historical reasons and as an adjunct of the ancient and

peculiar privilege of determining its own composition. It has  resorted to this power of expulsion in numerous cases which  have not the remotest relevance to either a breach of privilege  or to the commission of contempt or as a measure of  punishment for ordinary crimes. The argument is that since the Parliament of India does  not have the power to provide for or regulate its own  constitution, power of expulsion cannot be found conferred by  Article 105 on the Houses of Parliament. In this respect, the  petitioners would place reliance on the conclusion, reached,  with reference to May's Parliamentary Practice [16th ed.,  p.175], in the UP Assembly Case (at page 448) to the effect  that the legislature in India cannot claim privilege of the  House of Commons "in regard to its own Constitution" which  is "expressed in three ways, first by the order of new writs to  fill vacancies that arise in the Commons in the course of a  parliament; secondly, by the trial of controverted elections;  and thirdly, by determining the qualifications of its members  in cases of doubt ". That the legislatures established under the Constitution  of India do not have the power of self composition cannot be a  subject matter of controversy. It was clearly so observed in UP  Assembly Case. The Legislative organs in India, both Parliament and the  State legislatures, are completely subservient to, and controlled  by, the written provisions of the Constitution of India in regard  to the composition and the regulation of the membership  thereof and cannot claim the privilege of providing for or  regulating their own constitution. This can be demonstrated by  even a cursory look at the various provisions of the  Constitution which we may presently do. India is an indestructible Union of destructible units.  Article 3 and Article 4 of the Constitution together empower  Parliament to make laws to form a new State by separation of  the territory from any State or by uniting two or more States or  parts of States or by uniting any territory to a part of any State,  and in so doing to increase or diminish the area of any State  and to alter its boundaries and further to give effect through  measures to provide for the representation in the Legislatures  of State or States affected by such law by varying the compo- sition, the numerical strength thereof or even affecting the very  existence of a State Legislature. Article 79 provides for the Constitution of Parliament i.e.  the Union Legislature which consists of the President and two  Houses known respectively as the Council of States and the  House of the People.  Article 81 deals with the composition of  the House of the People and inter alia provides for the

maximum numerical strength (not more than five hundred  and thirty members from the States and not more than twenty  members to represent the Union Territories), the manner of  election (direct) and the nature of constituencies in the States  (territorial), allotment thereof to the different States on the  basis of ratio between the number of seats and the population  of the State, with Article 82 taking care of the readjustment of  allocation of seats and the division of each State into territorial  constituencies after each census.  Article 83 provides for the  duration of each House of Parliament, making the council of  States a permanent body with one-third of the members  thereof retiring on the expiration of every second year, thereby  giving to each of them tenure of six years.  It declares the term  of the House of the People to be five years, unless sooner  dissolved, extendable for a period not exceeding one year at a  time in the event of proclamation of emergency.  Article 84 prescribes the qualifications for membership of  Parliament, spelling out two main qualifications, leaving the  discretion to prescribe the others by law to the Parliament.   The qualifications necessary as per the constitutional  provisions include the citizenship of India and a minimum age.  Article 102 prescribes certain disqualifications which  operate as disqualifications at the time of Election or may  become supervening qualifications subsequent to the election.   As per the mandate in this constitutional provision a person is  disqualified for being chosen as or for being a member of  Parliament if he holds an office of profit (other than such  offices as are declared by Parliament to be exempt from such  consequences); if he is of unsound mind and so declared by a  competent court; if he is an undischarged insolvent; if he is  not a citizen of India or has voluntarily acquired citizenship of  a foreign state or is under any acknowledgement of allegiance  or adherence to a foreign state and if he is so disqualified by or  under any law made by parliament.  The question of  disqualification is decided on the basis of opinion of the  Election Commission by the President, in terms of the power  vested in him by Article 103.  Article 102(2) also refers to  disqualification as a result of enforcement of the provisions of  the Tenth Schedule on account of defection.    Article 101 makes provision on the subject of vacation of  seats in the Houses of Parliament.  A person cannot be a  member of both Houses at the same time and if chosen as a  member of both Houses he is required to vacate his seat in one  or the other House.  Similarly a person cannot be a member  both of the Parliament and of a House of the Legislature of a  State.  If so elected to both the said bodies, he is required to  resign one seat and in case of default at the expiration of

period specified in the Rules made by the President, the seat  in Parliament is rendered vacant.  Article 101(4) empowers the  House to declare the seat of a member vacant if such member  remains absent from all meetings of the House for a period of  sixty days without permission of the House.  Article 101(3)  declares that on a member being found disqualified under  Article 102, his seat in the Parliament becomes vacant.  In  addition to these various modes of vacation of seats,  resignation of the seat by writing under the hand of the  member results in the seat becoming vacant upon acceptance  of the resignation.   Article 99 requires every Member of Parliament to make  and subscribe the oath or affirmation prescribed in the Third  Schedule, before taking the seat.  Article104 prescribes a  penalty for sitting and voting in the Parliament before making  oath or affirmation or when not qualified or in the event of  being rendered disqualified.  , Article 330 and Article 331 make special provision for  reservation of seats in the House of the People for the  Scheduled Castes & Scheduled Tribes and the Anglo Indian  community. Article 85 vests in the President the power to summon  each House of Parliament for periodical sessions, the period  between two sittings whereof cannot exceed six months.  The  said Article also vests in the President the authority to  prorogue either House or dissolve the House of the People.   The above mentioned are some of the provisions of the  Constitution that collectively show that the privilege of  regulating own composition is not available to the Parliament. Part XV of the Constitution of India makes detailed  provisions on the subject of Elections to the Parliament and  State Legislatures. Article 326 makes adult suffrage as the  norm for these elections. The mandate of Article 324 is that it is  the Election Commission that controls the superintendence,  direction and control of elections. There is no power in any  legislature to fill its own vacancies or to issue writs for the  holding of by-elections etc. Articles 168 and 169 provide for the constitution of the  State Legislatures, with Parliament being vested with power to  substantially alter the very composition of the State  Legislatures by providing procedure following which bicameral  Legislature of a State may be altered to a unicameral one, or  vice versa. Article 170 and Article 171 deal with the  composition of the Legislative Assemblies and the Legislative  Councils respectively in the States. The maximum and the  minimum number of members are prescribed by law and the  ratio between the population of each constituency within the

State with the number of seats allotted to it being also  regulated by constitutional provisions, even the matter of re- adjustment of the territorial constituencies being controlled by  such authority (Delimitation Commission) and in such manner  as Parliament is to determine by law. The normal tenure of five  years for a State Legislative Assembly is prescribed by Article  172. The duration of the State Assembly and the mode and  manner of its dissolution are matters controlled by  constitutional prescriptions. Articles 173 and 191 prescribe the  qualifications and disqualifications for the membership of the  State Legislature; Article 174 creates a constitutional obligation  on the State Legislatures to meet at least once within a space of  six months, the power to summon the State legislature having  been given not to the House(s) but to the Governor Articles 327 and 328 empower the Parliament and the  State Legislatures, in that order, to make laws in connection  with the preparation of the electoral rolls, the delimitation of  constituencies and all other matters necessary for securing the  due constitution of the State Legislatures. Article 333 to 334  provide for the reservation of seats for the Scheduled Castes  and other communities in the State Legislatures again dealing  with the subject of composition and the character of the  membership thereof. Article 329 does bar the jurisdiction of courts but only in  matters of delimitation of constituencies or allotment of seats  thereto and reserves the jurisdiction to deal with election  disputes in favour of the authority prescribed by law, which  incidentally is High Court as per the Representation of People  Act, 1951. It must, therefore, be held as beyond the pale of all doubts  that neither Parliament nor State Legislatures in India can  assert power to provide for or regulate their own constitution in  the manner claimed by the House of Commons in United  Kingdom. Having regard to the elaborate provision made  elsewhere in the Constitution, this power cannot be claimed  even, or least of all, through the channel of Articles 105 (3) or  294 (3). The question that immediately arises is as to whether the  power of expulsion is referable exclusively, or solely, to the  power of the House of Commons to determine its own  composition including the fitness of elected members to  remain members.  The Union of India has argued that there is no authority  for the proposition that the House of Commons derived its  power to expel a member only from its privilege to provide for  its own Constitution or composition. It is the stand taken by  the learned Counsel that at the highest it may be stated that

the expulsion of a member by the House of Commons can also  be a manifestation of its power to control its own composition  in addition to the privilege to control its own proceedings  including disciplining a member in a fit case by his expulsion. On the other hand, seeking support from commentaries  on Constitutional law of England, the petitioners point out that  the subject of expulsion is dealt with by all authorities as  inextricably linked with the determination of the legal  qualifications or disqualifications for the membership of the  House of Commons, that is the peculiar right to judge upon the  fitness or unfitness of anyone of its members to continue as a  legislator. This power, they submit, is essentially derived from  the privilege to provide for its own constitution and from no  other source. The petitioners submit that a holistic reading of the  works of English and Commonwealth authors reveals that all  of them treat expulsion solely as an expression of the 'Privilege  of Regulating Due Composition of the House', and not as part  of privilege of regulating own proceedings or as an  independent penal power for punishing contempt. In fact, they  submit, the right of the House of Commons to regulate its own  proceedings was nothing more than a right of exclusive  cognizance of matters concerning the House to the exclusion  of the Courts' jurisdiction. It was merely a jurisdictional bar,  and had nothing to do with the source of power that could be  legitimately exercised in Parliament. The argument is that if  the power to expel does not reside in the House of Commons  independent of the power to constitute itself, it would  naturally not be available to the Indian Legislatures. Mr. Andhyarujina and Mr.Subramanian, however,  submitted that the privilege of the House of Commons "to  provide for its own proper constitution" has a meaning with  regard to its privileges in the matter of elections to it, as  explained by May in three ways as noticed by this Court in UP  Assembly Case as mentioned above and which include  "determining the qualifications of its members in cases of  doubt". Referring to May's 20th ed. Chapter 2 on elections p.  34 and Chapter 3 on Qualifications p. 520, it is argued that  this privilege is essentially related to electoral matters  including disqualifications to be elected. The "qualifications"  referred to are the qualifications of a member elected but  whom the House considers as not qualified to stand for  elections and sit in Parliament e.g. insolvents, minor, lunatics,  aliens, those charged with treason, peers etc. The House has a  right to determine the qualifications "in case of doubt" which  clearly shows that this statement does not mean unfitness to  be a member by conduct.

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

While dealing with the privilege of the House of Commons  to provide for and regulate its own Constitution, Anson sub- divides the mode and manner of its exercise into four parts, the  first three of which correspond to what is expounded by May  (20th Edition). He deals in great detail (5th ed., p. 182) with  expulsion on account of unfitness to serve as the fourth sub- heading under the main heading of 'Right to provide for its  proper Constitution' stating as under:- "Unfitness to serve, a cause of  expulsion, Case may arise in which a  member of the House, without having  incurred any disqualification recognised  by law, has so conducted himself as to be  an unfit member of a legislative assembly.  For instance, misdemeanour is not a dis- qualification by law though it may be a  disqualification in fact, and the House of  Commons is then compelled to rid itself of  such a member by the process of  expulsion. But expulsion, although it  vacates the seat of the expelled member,  does not create a disqualification; and if  the constituency does not agree with the  House as to the unfitness of the member  expelled, they can re-elect him. If the  House and the constituency differ  irreconcilably as to the fitness of the  person expelled, expulsion and re-election  might alternate throughout the  continuance of a Parliament." (Emphasis supplied)

Under the same sub-heading Anson also deals in detail  with the cases of expulsion of John Wilkes (1769) and  Walpole (1712). The case of Wilkes is cited to bring out the fact  that expulsion did not have the effect of creating a  disqualification. In spite of repeated expulsions by the House of  Commons, which even proceeded to declare his election void  thereby seeking to arbitrarily create a new disability depending  on its own opinion of his unfitness to be a member of this body,  Wilkes was elected to serve in the new Parliament and "took his  seat without question". From the passage extracted above, the petitioner  wants to infer that when expulsion is resorted to by the  House of Commons to rid itself of a member who may be  fully qualified but is found to be unfit to continue as a

member of the House, it is so done in exercise of the  privilege of the Commons to constitute itself. The petitioner  has stressed that such action can only be taken on a  member having been convicted for misdemeanor.  But then, one cannot lose sight of the words "for  instance" that precede the particular illustration of  exercise of power of expulsion by the House of Commons  in Anson. Clearly, what Anson seeks to convey is only that  it is within the power of the House of Commons to get rid  of such member as is considered to be unfit to continue to  be its member on any ground other than of conviction for  misdemeanor. It is the argument of the Petitioners that Anson treats  expulsion exclusively as a facet of the privilege of the House of  determining its own composition, and under no other head.  Anson explains (5th ed., p. 188) the nature and character of  this power, under the heading 'Power of inflicting punishment  for breach of Privilege' in the following words:- "But expulsion is a matter which concerns  the House itself and its composition, and  amounts to no more than an expression of  opinion that the person expelled, is unfit  to be a member of the House of Commons.  The imposition of a fine would be an idle  process unless backed by the power of  commitment. It is, then the right of  commitment which becomes, in the words  of 'Sir E. May, 'the keystone of  Parliamentary privilege'. It remains to  consider how it is exercised and by what  right."  

What Anson seems to indicate here is that expulsion is  a sanction that goes beyond mere imposition of fine backed  by the power of commitment in case of default and also that  expulsion undoubtedly affects the composition of the  House. He does not state that expulsion only concerns the  composition of the House. He is talking of possible  sanctions for gross misdemeanour against members and  not the qualifications requisite to become a member.  Further, Anson mentions the details of the privilege of the  right to constitute itself (5th ed., p. 177). He states, under a  separate heading "Right to provide for its proper  Constitution", as follows:- "One of these privileges is the right to  provide for the proper constitution of  the body of which it consists by issue of

writs when vacancies occur during the  existence of a parliament, by enforcing  disqualification for sitting in parliament,  and until 1868 by determining disputed  elections."

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

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

constitution.  In addition to possessing a  complete control over the regulation of its  own proceedings and the conduct of its  members, the House of Commons claims  the exclusive right of providing, as it may  deem fit, for its own proper constitution."   The petitioners, in reply, submit that no such  significance can be attached to the words "In addition". They  argue that the paragraph, when viewed in the context of the  other paragraphs under Chapter 2 namely 'Privileges etc  claimed', it becomes clear that the opening words 'In addition  to' make no addition to the Respondent's case. Paragraph  1007 deals with the right of the House of Commons to regulate  its own proceedings as 'Exclusive cognizance of proceedings'.  Bradlaugh also relied upon by the Union of India as part of  this argument is cited in this part. The scope of this privilege  is explained in the words, "This claim involves the exclusion of  review by any court or other external body of the application of  the procedure and practice of either House to the business  before it".  The petitioners submit that the right of the House to  regulate its own proceedings, of which expulsion is being  claimed an incident, is nothing more than a jurisdictional bar,  and not a positive source of any power. It is in this context  that Para 1019 opens with the words, "in addition to  possessing complete control over the regulation of its  proceedings and the conduct of its members". It refers only to  the exclusive jurisdiction exercised by the House of Commons  to the exclusion of the Courts. These words, according to the  petitioners, in no manner locate a new source of expulsion  power in the privilege of regulating its internal affairs. It is the  argument of the petitioners that Expulsion is explicitly dealt  with in paragraph 1026, which describes expulsion as being a  facet exclusively of the privilege of determining due  composition of the House. Para 1019 of Halsbury's Law of England quoted above  corresponds to Para 905 in its third edition of Volume 28 (Part  7, Section 2), also under the heading "Privileges peculiar to the  House of Commons". As is seen in that edition, after making  particular reference to the claim of the House of Commons to  the exclusive right of providing as it deems fit "for its own  proper constitution",  Halsbury would mention the "Power of  expulsion" in the succeeding Para, as is noticeable in the  following extract:- "906. Power of expulsion. Although the  House of Commons has delegated its right

to be the judge in controverted elections,  it retains its right to decide upon the  qualifications of any of its members to sit  and vote in Parliament. If in the opinion of the House, therefore, a  member has conducted himself in a  manner which renders him unfit to serve  as a member of Parliament, he may be  expelled from the House, but, unless the  cause of his expulsion by the House  constitutes in itself a disqualification to  sit and vote in the House of Commons, it  is open to his Constituency to re-elect  him. The expulsion of a member from the  House of Commons is effected by means  of a resolution, submitted to the House  by means of a motion upon which the  question is proposed from the chair in the  usual way."

The petitioners seek to argue that Halsbury, in a later part  in its third edition of Volume 28 (Part 7, section 3), dealing with  the "Penal Jurisdiction of the two Houses" in matters of  "Breaches of Privileges and Contempts", made express mention  of the sanctions that included reprimand, admonition and the  power to commit to imprisonment for contempt but omitted  reference to power of expulsion. The submission made is that  this omission renders doubtful the plea that expulsion from the  House of Commons is also within its penal jurisdiction and is  imposed as a measure of punishment for contempt. But then, it is pertinent to mention here that Para 906 of  the third edition has been omitted in the fourth edition.  The  subject of "Privilege of the House of Commons in relation to its  constitution" is followed by narration in separate Para (1020)  on the subject of "Power to fill vacant seat while the House of  Commons is sitting" and then by another Para (1021) on the  subject of "Power to fill vacant seat during prorogation or  adjournment" which appeared in earlier edition as Para  numbers 907 & 908 respectively.  The subject of the power of expulsion claimed by the  House of Commons stands shifted in the Fourth edition to a  later sub-part (3) under the heading "Jurisdiction of  Parliament" mainly dealing with the Penal jurisdiction, and  after narrating the position generally on the subject of  "Proceedings against offenders" and then referring to the "Power  to commit", "Period of imprisonment" and two other sanctions

namely "Reprimand and admonition", deals specifically with the  subject of power of expulsion of the House of Commons in Para  1026, which reads as under:- "1026. House of Commons' Power of  expulsion. Although the House of  Commons has delegated its right to be the  judge in controverted elections (see para  1019 note 2 ante), it retains its right to  decide upon the qualifications of any of its  members to sit and vote in Parliament.

If in the opinion of the House a  member has conducted himself in a  manner which renders him unfit to serve  as a member of Parliament, he may be  expelled, but, unless the cause of his  expulsion by the House constitutes in  itself a disqualification to sit and vote in  the House, he remains capable of re- election."   Noticeably, the contents of Para 1026 of the Fourth  Edition are virtually the same as were reflected in Para 906 of  the Third Edition, the last sub-Para of the latter (relating to  the means adopted for effecting expulsion) being one major  omission.  What is significant, however, is the shifting of the  entire subject from close proximity to the privilege of the  House of Commons in relation to its Constitution, (as was the  position in earlier edition) to the mention of power of expulsion  now amongst the various sanctions claimed by the said  legislature as part of its penal jurisdiction.  The footnotes of  Para 1026 borrow from the elaboration made through  footnotes relatable to erstwhile Para 906 and clarify that the  jurisdiction formerly exercised by the House of Commons in  controverted elections has been transferred since 1868 to the  Courts of law and further that, as mentioned in May's  Parliamentary Practice, members have been expelled from the  House of Commons upon various grounds, such as being  rebels, or having been guilty of forgery, perjury, frauds and  breaches of trusts, misappropriation of public money,  corruption in the administration of justice or in public offices  or in the execution of their duties as members of the House, or  of contempts and other offences against the House itself.       Undoubtedly, the words "In addition" with which Para  1019 opens do relate to the House of Commons possessing "a  complete control over the regulation of its own proceedings"  but that is not the end of the matter.  The words are

significant also in the context of the second limb of the  opening clause of the said Para, that is to say the words "and  the conduct of its members".  We are therefore, unable to  accept the contention of the petitioners that Halsbury narrates  the power of expulsion as a power originating from the power  of the House of Commons to regulate its own proceedings only.   Rather, the new arrangement in the Fourth edition shows that  Halsbury treats the power of expulsion more as a power  arising out of the penal jurisdiction than from the power of self  composition. The "Constitutional History of England" by Professor F.W.  Maitland (first edition 1908 - reprinted 1941), based on his  lectures, is divided chronologically. In the last and most  contemporary 'Period V' titled "Sketch of Public Law at the  Present Day (1887-8)", he deals with the House of Commons in  Part III. It has been opined by him that the earlier exercise of  privileges from the 14th to the 18th century may have fallen into  utter desuetude and indeed may furnish only an example of an  arbitrary and sometimes oppressive exercise of uncanalised  power by the House. After mentioning the membership and the  qualification of the voters as also principles and the mode of  election and dealing with the power of determining disputed  elections by the House of Commons, one of the facets of the  privilege of the House of Commons to provide for and regulate  its own Constitution, in the context of the vacation of seats in  the House by incurring disqualifications, he refers in sub-Para  (6) to the power of expulsion. His words may be extracted:- "The House has an undoubted power of  expelling a member, and the law does not  attempt to define the cases in which it  may be used. If the House voted the  expulsion of A.B. on the ground that he  was ugly, no court could give A.B. any  relief. The House's own discretion is the  only limit to this power. Probably it would  not be exercised now-a-days, unless the  member was charged with crime or with  some very gross miss-behaviour falling  short of crime, and in general the House  would wait until he had been tried and  convicted by a court of law. In 1856 a  member who had been indicted for fraud  and who had fled from the accusation was  expelled."

Though Maitland also discusses expulsion along with the  other constituent elements of the House's Privilege of

determining its own composition, we are unable to accept the  argument of the Petitioners that this exposition by Professor  Maitland shows that the power of expulsion was claimed by the  House of Commons it being only a part and parcel of its basic  privilege to control its own composition. During the course of  lectures, which is the format used here, Maitland referred to  expulsion alongside the privilege of the House of Commons to  control its own composition. But his narration reflects it was  the penal jurisdiction which was being highlighted in the  context of sanction of expulsion of members for misconduct.  Reference has also been made to the "Constitutional Law"  (Seventh edition) by Professors Wade and Phillips. On the  subject of the privileges of the House of Commons (Chapter 10),  while elaborating the undoubted privilege to control its own  proceedings and to provide for its own proper Constitution,  reference is made to the power of the House to determine the  disputed elections also indicating it to be inclusive of the power  of expulsion. The authors write as under:- "Expulsion: The House of Commons still  retains the right to pronounce upon legal  qualifications for membership, and to  declare a seat vacant on such ground. The  House may, however, as in the case of  Mitchel [(1875), I.R. 9C.L. 217] refer such  a question to the Courts. The House of  Commons cannot, of course, create  disqualifications unrecognised by law, but  it may expel any member who conducts  himself in a manner unfit for  membership. A constituency may re-elect  a member so expelled, and there might, as  in the case of John Wilkes, take place a  series of expulsions and re-elections.  Expulsion is the only method open to the  House of dealing with a member convicted  of a misdemeanour."

It has been argued by the petitioners that Professors Wade  and Phillips plainly treat expulsion as inextricably linked with  privilege of determining own composition or as an inevitable  consequence, where the House takes the view that a member  has conducted himself in such a manner as to be unworthy of  membership of the legislature, an act not explainable as  expulsion by way of a measure of punishment for the offence of  contempt.  We are unable to agree. Wade & Phillips have treated the  subject of expulsion from different angles, not necessarily

leading to the conclusion that this power would always be  traceable to the power of self composition alone.  Expulsion on  account of conviction for misdeamonour refers to disciplinary  control and therefore part of penal jurisdiction which  undoubtedly is distinct from the power of the House to provide  for its own constitution. Professors Keir and Lawson in their work "Cases in  Constitutional Law" (fifth edition), while dealing with cases of  Parliamentary privileges (page 263) mention first the exclusive  jurisdiction over all questions which rise within the walls of the  House except perhaps in cases of felony, referring in this  context to case of Bradlaugh, and then to the personal  privileges (freedom of debate, immunity from civil arrest, etc.)  which attach to the members of Parliament, and lastly the  punitive power for contempt indicated in the following words at  page 268:- "(iii) The power of executing decisions in  matters of privilege by committing  members of Parliament, or any other  individuals, to imprisonment for contempt  of the House. This is exemplified in the  case of the Sheriff of Middlesex."

The petitioners seek to point out that expulsion of a  member is not included in the penal powers of the House of  Commons.  To our mind, default in this regard by the author  does not lead to the conclusion that expulsion was not one of  the sanctions available against a member to the House as part  of its disciplinary control in as much as other authorities on  the subject demonstrate it to be so.    "Constitutional Law" by E.W. Ridges (Eighth edition,  p.65), as part of the discourse on the rights exercisable by the  House of Commons as flowing from its basic privilege of  providing for its due composition sets out the classification as  under:- "The Right to provide for its Due  Composition.  This comprises:  (a) The right of the Speaker to secure the  issue of a new writ on a vacancy occurring  during the existence of a Parliament either  by operation of some disqualification or on  the decision of a member elected in more  than one place which seat he will accept.   If in session, the writ is issued in  accordance with the order of the House.  If  not in session, the procedure is regulated

by certain statutes.; (b) The right to determine questions as to  the legal qualifications of its own  members, as in Smith O Brien's case  (1849), O' Donovan Rossa's case (1870),  Mitchel's case (1875), Michael Davitt's  case (1882) and AA Lynch's Case (1903),  these persons being disqualified as  undergoing sentence in consequence of  conviction for felony or treason.  

In Mitchel's Case the House declared  the seat vacant, but on his being elected a  second time they allowed the courts to  determine the question, and it was held  that the votes given to Mitchel were  thrown away and his opponent at the  election duly elected in consequence.  In  Michael Davitt's case the House resolved  that the election was void, and a new writ  was accordingly issued. (c) The right to expel a member although  subject to no legal disqualification. So, in  1621, Sir R. Floyd was expelled merely  because he was a holder of the monopoly  of engrossing wills. Thus a member guilty  of misdemeanour does not forfeit his seat,  but may be expelled, thus vacating his  seat.  Or the House may itself decide that  a member's acts merit expulsion, as in the  case of Sir R. Steele's pamphlet, The  Crisis, in 1714, and of Wilkes' North  Briton (No. 45) in 1763.  In Wilkes' Case  (1769), Wilkes having been expelled and  re-elected, the House passed a resolution  declaring his election void, and the  member next on the poll duly returned. In  1782 the House declared this resolution  void, as being subversive of the rights of  the electors, and the proceedings in  connection with the election were  expunged from the journals.  The proper  course in such a case would therefore be  for the House to expel the member a  second time, if so disposed.  In Upper  Canada Mr. Mackenzie was thus four  House times expelled in the Parliament  from 1832.  In October, 1947, the House

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

It is clear from the above extract that E.W. Ridges, though  referring to the power of expulsion under the heading "The  Right to Provide for its Due Composition", does not restrict it as  a power sourced from the right to provide for its own  composition but refers at length to cases where the power of  expulsion was used by the House of Commons in cases of  criminal conduct, gross misdemeanour and even in matters of  contempt.  We are therefore unable to subscribe to the  inference that the power of expulsion according to Ridges is  traceable only to the privilege of self composition.   Indeed, as pointed out by the Editor Sir Barnett Cocks  (also a former Clerk of the House of Commons) in the preface to  the 18th Edition (1971) of May in Parliamentary Practice, this  work would deal with the subject under various headings  including 'Elections', 'Disqualification for Membership of Either  House' etc. leading to overlapping. Be that as it may, while  discussing the subject of disqualification for the membership of  the House of Commons in Chapter III, it has been mentioned  that a person convicted of a misdemeanour is not thereby  disqualified for election or for sitting and voting, but when a  member is so convicted, the House might decide to expel him,  but such expulsion does not in itself create a disability or  prevent a constituency from re-electing the expelled member.  After having referred to this aspect of the expulsion, the editor  would make a cross-reference for further discussion on the  subject at page 130 included in Chapter IX of the work which

pertains to the penal jurisdiction of the House of Parliament  and their powers to inflict punishment for contempt. It has been argued by the learned Counsel for Union of  India that the exposition of law by May shows that the power of  expulsion was not sourced only from the power of the House of  Commons to provide for its own composition but also out of its  penal jurisdiction dealing with breaches of privileges and  contempt. He would refer in this context to observations at  page 127 that in cases of contempt committed in the House of  Commons by its members, the penalties of suspension from the  House and expulsion were also available and in some cases  they had been inflicted cumulatively.  The exposition by May in Chapter 8 titled "Other privileges  claimed for the Commons" (20th Edn.) under the heading  "Privilege of the House of Commons with respect to its own  constitution", according to the petitioners, treated expulsion as  an example of the power of the House of Commons to regulate  its own constitution, relatable to the matters of disqualification  for membership. Though he would deal with the subject of  expulsion at length with other punitive powers of the House, in  as much as the results are equally grave and adverse to a  sitting member, the petitioners argue that, May would  categorically explain that expulsion is neither disciplinary nor  punitive but purely a remedial measure intended to rid the  house of persons who in its opinion are unfit for its  membership. The petitioners refer to the testimony given by Sir Barnett  Cocks during inquiry before a Committee of the House of  Commons. He had been specially called by the Committee of  Privileges of the House of Commons in the case of Rt. Hon.  Quintin Hogg, Lord President of the Council and Secretary of  State for Education and Science and examined about the  essence and the real nature of this parliamentary Privilege. The  Report dated 16th June 1964 of the Committee indicates that  when questioned by the Attorney General as to the nature of  power exercised by the House of Commons treating the  behaviour of Asgill as either a contempt of the House or a  breach of privilege he agreed that the House of Commons  having complete control over its own membership was merely  exercising its said power. He referred to Erskine May wherein it  is illustrated as one of the privileges of the House to control its  own membership and to expel members who are unworthy of  membership, to control its own composition. When the Chairman Mr. Salwyn Llyod, referred to case of  Garry Allignan's and asked for clarity as to whether there could  be a situation of expulsion simply for disreputable conduct  having nothing to do with privilege or contempt but because the

House regarded one of its members as unfit to sit in it, Sir  Barnett Cocks opined, "I think a Member can be expelled for  conduct which need not be related to one of three or four  existing Privileges", this in answer to query from Sir Harold  Wilson wherein he had mentioned other Privileges, one being  the power to determine its own membership. The Petitioners have submitted that the above mentioned  opinion rendered by Sir Barnett Cocks in House of Commons  also demonstrates that he would also regard the power of  expulsion essentially as another facet of the basic  parliamentary privilege of the House of Commons to provide for  its own constitution and determine its membership, which had  been used by that legislature to expel members for undefined  and unspecified reasons completely and wholly unrelated to  any breach of its privilege or its contempt and thus not as a  punitive measure of express punishment for contempt of the  House.  May, in 20th Edition dealt with the "Penal Jurisdiction of  the Houses of Parliament" in separate chapter (Chapter 9), and  after dealing with the power to inflict punishment for contempt  and referring to various sanctions including that of  commitment, fine, reprimand & admonition, talked about the  power of "Expulsion by the Commons"   at page 139, where he  would  state thus:- "The purpose of expulsion is not so much  disciplinary as remedial, not so much to  punish Members as to rid the House of  persons who are unfit for membership. It  may justly be regarded as an example of  the House's power to regulate its own  constitution. But it is more convenient to  treat it among the methods of punishment  at the disposal of the House."

In the 23rd Edition of May's Parliamentary practice, the  discourse on the subject of "Privilege of the House of  Commons with respect to its own constitution" has been  shifted to Chapter 5 titled "The privilege of Parliament" and  appears at page 90 onwards.  As noticed earlier, the paragraph  appearing in the 20th Edition wherein it was mentioned that  the privilege to provide for its proper constitution was  expressed in three ways by the House of Commons has been  omitted.  It is significant that the power of expulsion is  mentioned even in the 23rd Edition, elaborately in Chapter 9  that deals with "Penal Jurisdiction of both Houses", alongside  the other such powers of punishment including committal,  fines, reprimand and admonition.  The observation that the

purpose of expulsion is "not so much disciplinary as remedial,  not so much to punish Members as to rid the House of  persons who are unfit for membership" is also missing.   We are unable to accept the contentions of the petitioners  that the source of Power of Expulsion in England was the  privilege of the House of Commons to regulate its own  constitution or that the source of the power is single and  indivisible and cannot be traced to some other source like  independent or inherent penal power.  The right to enforce its privileges either by imposition of  fine or by commitment to prison (both of which punishments  can be awarded against the members of the House as well as  outsiders) or by expulsion (possible in case of members only)  is not a part of any other privilege but is by itself a  separate and independent power or privilege. To enforce a  privilege against a member by expelling him for breach of  such privilege is not a way of expressing the power of the  House of Commons to constitute itself. Though expulsion can be, and may have been, resorted  to by the House of Commons with a view to preserve or  change its constitution, it would not exclude or impinge  upon its independent privilege to punish a member for  breach of privilege or for contempt by expelling him from  the House. Expulsion concerns the House itself as the  punishment of expulsion cannot be inflicted on a person  who is not a member of the House. As a necessary and  direct consequence, the composition of the House may be  affected by the expulsion of a member. That would not,  however, necessarily mean that the power of expulsion is  exercised only with a view, or for the purpose of regulating  the composition of the House. One of the three ways of  exercising the privilege of the Commons to constitute itself  as mentioned by May (in 20th Edition) can undoubtedly, in  certain circumstances, be expressed by expelling a  member of the House. But this does not mean that the  existence and exercise of the privilege of expelling a  member by way of punishment for misconduct or contempt  of the House stands ruled out. The power of self  composition of the House of Commons is materially  distinct and meant for purposes other than those for  which the House has the competence to resort to  expulsion of its members for acts of high misdemeanour.  The existence of the former power on which expulsion can  be ordered by the House of Commons cannot by itself  exclude or abrogate the independent power of the House to  punish a member by expelling him, a punishment which  cannot be inflicted on a non-member.

Expulsion being regarded as "justly as an example of the  privilege of the House of Commons to regulate its own  Constitution" by May does not mean that the power to expel is  solely derived from the privilege to regulate its own  Constitution or that without the privilege of providing for its  own Constitution, the House could not expel a member.  The  latter view would be contrary to the established position that  the House has a right as part of its privilege to have complete  control over its proceedings including the right to punish a  member by expulsion who by his conduct interferes with the  proper conduct of Parliament business. Power to punish for Contempt   The next question that we need to decide is whether the  Indian parliament has the power of expulsion in relation to the  power to punish for contempt. It is the contention of the  petitioners that the Parliament cannot claim the larger  punitive power to punish for contempt. It has been argued on behalf of the Petitioners that the  power to punish for contempt is a judicial power enjoyed by  the House of Commons in its capacity as a High Court and,  therefore, the same power would not be available to the  legislatures in India. According to the Petitioners, this position  has already been laid down in the case of UP Assembly. In  addition, they would also place reliance on various decisions  from other jurisdictions which make a distinction between  punitive contempt powers - essentially judicial in nature and  powers for self-protection - incidental to every legislative body.   According to the Petitioners, the full, punitive power of the  House of Commons is not available; rather the legislatures in  India can exercise only limited remedial power to punish for  contempt. On the other hand, the Respondents have argued that  the power to punish for contempt is available to the  Parliament in India as they are necessary powers. It was  submitted that the power to punish for contempt is a power  akin to a judicial power and it is available to the Parliament  without it being the High Court of Record. Further, it was  submitted that the Parliament has all such powers as are  meant for defensive or protective purposes. Thus, the questions that need to be addressed are as to  whether the legislatures in India have the power to punish for  contempt and, if so, whether there are any limitations on such  power.   The powers, privileges and immunities of Parliament  under Clause 3 of Article 105 are other than those covered by  earlier two clauses. Since powers thus far have not been  defined by Parliament by law, they are such as vested in the

House of Commons at the commencement of the Constitution. The first question, therefore, is whether this source itself  incorporates any restrictions. Article 105(3) in this respect  seems plain and unambiguous.  Upon a reading of the clause,  it seems clear that the article itself envisages no restrictions  regarding the powers that can be imported from the House of  Commons. It only states that the powers of the Indian  parliament are those of the House of Commons in the United  Kingdom without making any distinction regarding the nature  of the power or its source. Hence the argument on behalf of  the respondents that it would be alien to the Constitution to  read qualifying words into this article that are not present in  the first place and not intended to be included. The respondents have referred to the evolution of the  jurisprudence on the subject in other jurisdictions, in  particular where there have been legislated provisions in  respect of colonial legislatures, in which context it has been  held that such legislative bodies enjoy all the powers of the  House of Commons, including those the said House had  enjoyed in its capacity as a Court of Record. Through an enactment establishing a Colonial  Constitution, the parliament of the Colony of Victoria was  empowered to define the privileges and powers it should  possess, which were declared not to exceed those possessed at  the date of the enactment by the British House of Commons.  The case of Dill v. Murphy [1864 (15) ER 784] revolved  around the powers of the Legislative Assembly of Victoria.   Such powers were held to include the power to punish for  contempt and in the light of the enactment the distinction  between the powers of the House of Commons as a legislative  body and those as a High Court was not applied to weed out  the 'judicial powers', this position being upheld in an appeal to  the Privy Council. Williams J. held:- "On a closer investigation of all the  authorities and considering the  comprehensive nature of the 35th section,  no restriction as the House of  Commons as a deliberative Assembly, but  of the House of Commons generally, I am  led to the conclusionthat the powers  and privileges of Commons House of  Parliament whether obtained by the lex et  consuetudo Parliamenti or not, whether  as a deliberative Assembly or as a  component part of the Highest Court in  the realm are claimable by the Legislative  Assembly in this Colony."

(Emphasis supplied)

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

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

these democratic days. Our Constitution  clearly provides that until Parliament or  the State Legislature, as the case may be,  makes a law defining the powers,  privileges and immunities of the House,  its members and Committees, they shall  have all the powers, privileges and  immunities of the House of Commons as  at the date of the commencement of our  Constitution and yet to deny them those  powers, privileges and immunities, after  finding that the House of Commons had  them at the relevant time, will be not to  interpret the Constitution but to re-make  it. Nor do we share the view that it will  not be right to entrust our Houses with  these powers, privileges and immunities,  for we are well persuaded that our  Houses, like the House of Commons, will  appreciate the benefit of publicity and will  not exercise the powers, privileges and  immunities except in gross cases."  (Emphasis supplied)

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

It does not follow from rejecting the broad claims and  holding that there are some powers of House of Commons  which cannot be claimed by Indian legislatures, that the power  of expulsion falls in that category.  A little later we will show  the circumstances which led to UP Assembly case and its  ratio on the point in issue. On the specific issue of the power to punish for  contempt, learned Counsel have relied on various observations  made in the aforementioned case in support of the proposition  that the legislatures in India are not a Court of Record.  It has  been submitted that, relying on the logic of case of UP  Assembly, any privilege that is found to be part of the 'lex et  consuetudo parliamenti' would be unavailable to the Indian  legislatures, because the Indian legislatures cannot claim to be  Courts of Record. In line with the same reasoning, it has been  argued that all that the Indian Legislatures can claim is a  limited power to punish for contempt.   Reliance has been placed on several English cases,  namely Keilley v. Carson [(1842) 4 Moo. PC 63], Fenton v.  Hampton [(1858) 11 MOO PCC 347], Doyle v. Falconer  [1865-67) LR 1 PC 328], and Barton v. Taylor [(1886) 11  App Cases 197].  These cases refer to the distinction between  the punitive powers of contempt and the self-protection  powers.  Significantly, while the first two cases related to  conduct of outsiders, the latter two cases related to the  conduct of sitting members.  These four cases hold that the  other legislatures, that is to say bodies other than the House  of Commons, can only claim the protective powers of the  House. This distinction has been explained in Doyle as  follows:- "It is necessary to distinguish between a  power to punish for a contempt, which is  a judicial power, and a power to remove  any obstruction offered to the  deliberations or proper action of a  Legislative body during its sitting, which  last power is necessary for self- preservation."

It has been submitted on behalf of the petitioners that  Parliament can only claim the protective, limited power to  punish for contempt, that also if committed ex facie. It has  been argued that this limited self-protective power can never  include power of expulsion, as expulsion is not necessary for  the protection of the House. A distinction between expulsion  and exclusion is sought to be brought out to argue that the

measure of exclusion would be sufficient for the protection of  the dignity of the House. On the other hand, for the respondent it was submitted  that the Privy Council cases referred to above are irrelevant in  as much as they laid down the powers of subordinate or  colonial legislatures, whereas Parliament in India is the  supreme legislative body and the limitations that bind such  subordinate bodies as the former category cannot bind the  latter.   The petitioners, in answer to the above argument, have  referred to the decision of US Supreme Court in the case of  Marshall v. Gordon [243 U.S. 521, 541 (1917)].  The case  related to the contempt powers of the US Congress. The  Congress had charged a District Attorney for contempt. The  question before the Court was as to whether Congress had the  power to do so without a trial and other legal requirements.   The Court held that the US Congress did not have the  'punitive' power of contempt.  At page 887, the US Supreme  Court observed:- "There can be no doubt that the ruling in  the case just stated upheld the existence  of the implied power to punish for  contempt as distinct from legislative  authority and yet flowing from it. It thus  becomes apparent that from a doctrinal  point of view the English rule concerning  legislative bodies generally came to be in  exact accord with that which was  recognized in Anderson v. Dunn, supra, as  belonging to Congress, that is, that in  virtue of the grant of legislative authority  there would be a power implied to deal  with contempt in so far as that authority  was necessary to preserve and carry out  the legislative authority given." .

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

or the refusal to do that which there is an  inherent legislative power to compel in  order that legislative functions may be  performed."

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

The case of Hardwari Lal v. Election Commission of  India etc. [ILR (1977) P&H 269] decided by a full bench of  Punjab & Haryana High Court also related to expulsion of a  sitting member from the legislative assembly of the State of  Haryana.  The majority decision in that case held that the  Legislative Assembly does not have the power to expel. The  ratio in that case was identical to the arguments of the  petitioners before us in the present case. The minority view in  the case was, however, that the Legislative Assembly did have  the power to expel as well as the power to punish for  contempt. This view has been commended by the respondents  to us as the correct formulation of law. With respect to the  power to punish for contempt, the minority view has  distinguished the case of UP Assembly on the ground that it  dealt only with non-members and held that the fact that the  power to punish for contempt was sourced from the judicial  functions of the House of Commons is wholly irrelevant. The  minority view says:  "Indeed the source from which the House  of Parliament derives a power to punish  for its contempt may not be in dispute at  all, but it must be remembered that  "House of Parliament" and "House of  Commons' are not synonyms. As already  stated the House of Parliament consists  of the House of Commons, the House of  Lords and the King Emperor (or the  Queen as the case may be).  Be that as it  may, if we were to go to the source from  which the Commons derive any particular  power or privilege and then to decide  whether that particular source is or is not  available to the Indian Legislatures in  respect of that privilege, it would be  adopting a course which is wholly foreign  to the language of Article 194(3). Such an  enquiry would be relevant only if we were  to read into Article 194(3) after the words  "at the commencement of this  Constitution", the words "other than  those which are exercised by the  Commons as a descendant of the High  Court of Parliament". There is no  justification at all for reading into Article  194(3) what the Constituent Assembly

did not choose to put therein. Adopting  such a course would, in my opinion, not  be interpreting clause (3) of Article 194,  but re-writing it."  (Emphasis supplied)

The case of K. Anbashagan v. Tamil Nadu Legislative  Assembly [AIR 1988 Mad 275] had similar dispute  concerning powers of the State legislative assembly in Tamil  Nadu. The view taken by the Madras High Court is similar to  the one in Yeshwant Rao decided by the Madhya Pradesh  High Court and the minority view in the Hardwari Lal  decided by Punjab & Haryana High Court. It was held by  Madras High Court that the power of expulsion is available as  a method of disciplining members. However, at no point did  the Court examine the power to punish for contempt. The  Court upheld the power of expulsion independently of the  contempt jurisdiction. The petitioners referred to the case of UP Assembly,  particularly the passages quoted hereinafter:- "In considering the nature of these  privileges generally, and particularly the  nature of the privilege claimed by the  House to punish for contempt, it is  necessary to remember the historical  origin of this doctrine of privileges. In this  connection, May has emphasised that the  origin of the modern Parliament consisted  in its judicial functions."   . "In this connection, it is essential to bear  in mind the fact that the status of a  superior Court of Record which was  accorded to the House of Commons, is  based on historical facts to which we  have already referred. It is a fact of  English history that the Parliament was  discharging judicial functions in its early  career. It is a fact of both historical and  constitutional history in England that the  House of Lords still continues to be the  highest Court of law in the country. It is a  fact of constitutional history even today  that both the Houses possess powers of  impeachment and attainder. It is obvious,  we think, that these historical facts  cannot be introduced in India by any

legal fiction. Appropriate legislative  provisions do occasionally introduce legal  fiction, but there is a limit to the power of  law to introduce such fictions. Law can  introduce fictions as to legal rights and  obligations and as to the retrospective  operation of provisions made in that  behalf; but legal fiction can hardly  introduce historical facts from one  country to another."  .

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

It has been argued that in the face of above-quoted view  of this Court, it cannot be allowed to be argued that that all  the powers of the House of Commons that were enjoyed in its  peculiar judicial capacity can be enjoyed by the legislatures in  India. In our considered view, such broad proposition was  neither the intended interpretation, nor does the judgment  support such a claim.  In above context, it is necessary to recognize the special  circumstances in which case of UP Assembly arose.  It  involved the resolutions of the Legislative Assembly in Uttar  Pradesh finding that not only had Keshav Singh committed  contempt of the House, but even the two Judges of the High  Court, by admitting Keshav Singh's writ petition, and indeed  his Advocate, by petitioning the High Court, were guilty of

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

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

(Emphasis supplied)

Thus, in the case of UP Assembly the Court was mainly  concerned with the power claimed by legislature to issue  general warrant and conclusive character thereof. There was  no challenge in that case to the power to punish for contempt,  much less the power to expel, these issues even otherwise  being not inherent in the strict frame of reference made to the  Court. Indeed, the thrust of the decision was on the examination  of the power to issue unspeaking warrants immune from the  review of the Courts, and not on the power to deal with  contempt itself. A close reading of the case demonstrates that  the Court treated the power to punish for contempt as a  privilege of the House. Speaking of the legislatures in India, it  was stated:- "there is no doubt that the House has the  power to punish for contempt committed  outside its chamber, and from that point  of view it may claim one of the rights  possessed by a Court of Record" (Emphasis supplied)

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

It is evident, therefore, that in the opinion of the Court in

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

XXXXXXX

"In conclusion, we ought to add that  throughout our discussion we have  consistently attempted to make it clear  that the main point which we are  discussing is the right of the House to  claim that a general warrant issued by it  in respect of its contempt alleged to have  been committed by a citizen who is not a  Member of the House outside the four- walls of the House, is conclusive, for it is

on that claim that the House has chosen  to take the view that the Judges, the  Advocate, and the party have committed  contempt by reference to the conduct in  the habeas corpus petition pending  before the Lucknow Bench of the  Allahabad High Court."  (Emphasis supplied)

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

"It is evident, from the Chapter in which  Article 194 occurs as well as the heading  and its marginal note that the "powers"

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

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

".A House of Parliament or State

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

The passage quoted above makes it further clear that the  only limitation the Court recognizes in the power of the  legislatures to punish for contempt is that such contempt  powers cannot be used to divest the ordinary courts of their  jurisdiction. This is in tune with the decision in the case of UP  Assembly.  More over, when the Court spoke of the use of  contempt power to remove obstructions to the functioning of  the House, it did not read into it any limitations on the power  to punish for contempt. Rather, the general purpose of its  invocation was recognized. Thus, we are unable to accept the contention that the  power to punish for contempt is denied to the Indian  legislatures as they are not Courts of Record. However, we  would like to emphasize that the power to punish for contempt  of the House of Commons is a very broad power,  encompassing a variety of other powers. The case of UP  Assembly examined only one aspect of that power  to issue  unspeaking warrants  and held that such a power is  unavailable under our constitution.  What we are presently  examining in the cases at hand is another aspect of this broad  contempt power  the power to expel a sitting member.  While  we hold that the power to punish for contempt in its totality  has not been struck down by decision in UP Assembly, we do  not intend to rule on the validity of the broad power to punish  for contempt as a whole. The different elements of this broad  contempt power will have to be decided on an independent  scrutiny of validity in appropriate case.  We would restrict

ourselves to the power to expel a member for contempt  committed by him. Having found, however, that there is no bar  on reading the power to punish for contempt in Article 105(3),  it is possible to source the power of expulsion through the  same provision.   There is no contest whatsoever to the plea that the House  of Commons did in fact enjoy the power of expulsion at the  commencement of the Constitution. A number of instances  have been quoted even by the petitioners, including those  occurring around the time of the commencement of the  Constitution. To mention some of them, notice may be taken  of case of member named Horatio Bottomley, expelled in 1922  after he was convicted for fraudulent conversion of property;  case of Gary Allighan, expelled in 1947, for gross contempt of  House after publication of an article accusing members of the  House of insobriety and taking fees or bribe for information;  and, the case of Peter Baker, expelled in 1954 from the House  after being convicted and sentenced for forgery. Although the examples of expulsion in this century by  the House of Commons are few, the relevant time for our  purposes is the date of the commencement of the Constitution.   The last two cases occurring in 1947 and 1954 clearly  establish that the power to expel was in fact a privilege of the  House of Commons at the commencement of our Constitution.  Thus, from this perspective, the power of expulsion can be  read within Article 105(3).  We have already held that this  power is not inconsistent with other provisions of the  Constitution. We may also briefly deal with the other possible sources  of the power of expulsion.

Plea of limited remedial power of Contempt   The next scrutiny concerns the anxiety as to whether the  Parliament possesses only a limited remedial power of  contempt and, if so, whether it can source therefrom the  power of expulsion.  There has been great debate around the cases of Keilley,  Fenton, Doyle and Barton mentioned earlier. We would,  therefore, notice the relevant portions of the decisions  rendered in the said cases. The case of Keilley arose out of the imprisonment of the  appellant, who allegedly used threatening and insulting  language against a member of the Legislative Assembly of  Newfoundland. His conduct was held to be a breach of  privilege by the Assembly and their powers came up for  scrutiny before the Privy Council. It was found by the court  that the Legislative Assembly of Newfoundland did not have

the power to punish for contempt.  The judgment was  delivered by Mr. Baron Parke, who held:- "The whole question then is reduced to  this,whether by law, the power of  committing for a contempt, not in the  presence of the Assembly, is incident to  every local Legislature. The Statute Law  on this subject being silent, the Common  Law is to govern it; and what is the  Common Law, depends upon principle  and precedent.

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

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. (235)

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

The next case was that of Doyle. This case involved the

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

The privileges of the House of Commons,  that of punishing for contempt being one,  belong to it by virtue of lex et consuetude  Parliamenti, which is a law peculiar to  and inherent in two Houses of Parliament  of the United Kingdom. It cannot  therefore, be inferred from the possession  of certain powers by the house of  Commons, by virtue of that ancient usage  and prescription, that the like powers  belong to Legislative Assemblies of  comparatively recent creation in the  dependencies of the Crown. (339)

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

Is the power to punish and commit for  contempts committed in its presence one  necessary to the existence of such a body  as the Assembly of Dominica, and the  proper exercise of the functions which it  is intended to execute? It is necessary to  distinguish between a power to punish  for a contempt, which is a judicial power,

and a power to remove any obstruction  offered to the deliberations or proper  action of a Legislative body during its  sitting, which last power is necessary for  self-preservation. If a Member of a  Colonial House of Assembly is guilty of  disorderly conduct in the House whilst  sitting, he may be removed, or excluded  for a time, or even expelled; but there is a  great difference between such powers and  the judicial power of inflicting a penal- sentence for the offence.  The right to  remove for self-security is one thing, the  right to inflict punishment another." (340)

Finally, in Barton, it involved the suspension of a  member from the Legislative Assembly of New South Wales.  The power of suspension for an indefinite time was held to be  unavailable to the Legislative Assembly as it was said to have  trespassed into the punitive field. The judgment was delivered  by the Earl of Selborne. Referring to the cases of Keilley and  Doyle, the Court observed:- "It results from those authorities that no  powers of that kind are incident to or  inherent in a Colonial Legislative  Assembly (without express grant), except  'such as are necessary to the existence of  such a body, and the proper exercise of  the functions which it is intended to  execute'.

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

unnecessarily prolonged suspension then  by expulsion, after which a new election  would immediately be held."  (Emphasis supplied)

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

This argument was rejected and the House of Lords  allowed the appeal. Lord Macnaghten, delivering the judgment,

initially observed that:- ".no one would probably contend that  the orderly conduct of the Assembly  would be disturbed or affected by the  mere fact that a criminal charge is  pending against a Member of the House"  (475)

But he found that certain peculiar circumstances of the  case deserved to be given weight. The Court went on to hold  thus:- "If the House itself has taken the less  favourable view of the plaintiff's attitude  [an insult and challenge to the house],  and has judged that the occasion justified  temporary suspension, not by way of  punishment, but in self-defence, it seems  impossible for the Court to declare that  the House was so wrong in its judgment,  and the standing order and the resolution  founded upon it so foreign to the purpose  contemplated by the Act, that the  proceedings must be declared  invalid."(476)  (Emphasis supplied)

The above case thus establishes that even if the House of  legislature has limited powers, such power is not only  restricted to ex facie contempts, but even acts committed  outside the House. It is open to the assembly to use its power  for "protective" purposes, and the acts that it can act upon are  not only those that are committed in the House, but upon  anything that lowers the dignity of the House. Thus, the  petitioners' submission that House only has the power to  remove obstructions during its proceedings cannot be  accepted. It is axiomatic to state that expulsion is always in respect  of a member. At the same time, it needs to be borne in mind  that a member is part of the House due to which his or her  conduct always has a direct bearing upon the perception of  the House. Any legislative body must act through its members  and the connection between the conduct of the members and  the perception of the House is strong.  We, therefore, conclude  that even if the Parliament had only the limited remedial  power to punish for contempt, the power to expel would be  well within the limits of such remedial contempt power.  We are unable to find any reason as to why legislatures

established in India by the Constitution, including the  Parliament under Article 105 (3), should be denied the claim to  the power of expulsion arising out of remedial power of  contempt.  

Principle of necessity   Learned Counsel for Union of India and the learned  Additional Solicitor General also submitted that the power of  expulsion of a sitting member is an inherent right of every  legislature on the ground of necessity.  The argument is that  'necessity' as a source of the power of expulsion, is also  available to a House for expulsion of one of its members, as  such power is 'necessary' for the functioning of the House.   The petitioners, on the other hand, argued that expulsion can  never be considered 'necessary' or a 'self protective' power and,  therefore, it cannot be claimed by the House. In view of our interpretation of Article 105(3) of the  Constitution, it is not essential to determine the question  whether 'necessity' as an independent source of power, apart  from the power of the House to punish for contempt, by  expulsion of a member, is available or not.  We may note that  number of judgments were cited in support of the respective  view points.  Further, the Petitioners have also relied on the fact that  Australia has passed a law taking away the power of  expulsion.   It is true that Section 4 of the Parliamentary  Privileges Act, 1987 removed the power to expel from the  Houses of the Commonwealth Parliament in Australia.  The  Act was passed on the recommendation of the Parliament's  Joint Select Committee on Parliamentary Privilege.  Enid  Campbell, the eminent authority on Australian Parliamentary  privilege writes, "The Committee so recommended because of  the potential abuse of the power, because of the specific  provisions in the federal Constitution on disqualification of  members, 'and on the basic consideration that it is for the  electors, not members, to decide on the composition of  Parliament'."   Odger's Australian Senate Practice further clarifies  the basis for the Joint Select Committee's recommendation :  "The 1984 report of the Joint Select  Committee on Parliamentary Privilege  recommended that the power of a House  to expel its members be abolished.  The  rationale of this recommendation was  that the disqualification of members is  covered by the Constitution and by the  electoral legislation, and if a member is

not disqualified the question of whether  the member is otherwise unfit for  membership of a House should be left to  the electorate.  The committee was also  influenced by the only instance of the  expulsion of a member of a House off the  Commonwealth Parliament, that of a  member of the House of Representatives  in 1920 for allegedly seditious words  uttered outside the House.  This case had  long been regarded as an instance of  improper use of the power (see, for  example, E. Campbell, Parliamentary  Privilege in Australia, MUP, 1966, pp.104- 05 (Odger's Australian Senate Practice  11th Edition, 56-57).

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

Members.  Members guilty of a breach of  privilege or other contempt may be  committed, or fined   These sanctions  seem drastic enough.  They may also be  suspended or censured by their House."

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

Argument of Parliamentary practice  During the course of arguments it was brought out that  since the date of commencement of the Constitution of India  there have been three occasions when the Houses of  Parliament have resorted to expulsion of the sitting Member.   Out of these three occasions, two pertained to Members of Lok  Sabha.   The first such case came on 8th June 1951 when the 1st  Lok Sabha resolved to expel Mr. H.G. Mudgal for having  engaged himself in conduct that was derogatory to the dignity  of the House and inconsistent with the standard which  Parliament is entitled to expect from its members.  The second  occasion of expulsion came in 6th Lok Sabha, when by a  resolution adopted on 19th December 1978, it resolved to agree  with the recommendations and findings of the Committee of  Privileges and on the basis thereof ordered expulsion of Mrs.  Indira Gandhi along with two others (Mr. R.K. Dhawan and  Mr. D. Sen) from the membership of the House having found  them guilty of breach of privilege of the House.  The third case  pertains to Rajya Sabha when expulsion of Mr. Subramanium  Swamy was ordered on 15th November 1976. The above-mentioned three instances of expulsion from  the Houses of Parliament have been referred to by the learned  counsel for Union of India in support of his argument that  expulsion of a Member of Parliament has not been ordered for  the first time and that it is now part of Parliamentary practice  that the Houses of Parliament can expel their respective  members for conduct considered unfit and unworthy of a  Member. On the other hand, the learned counsel for the  petitioners would refer to these very instances to quote certain  observations in the course of debates in the Parliament to  buttress their plea that the Parliamentary practice in India is

against resort to the extreme penalty of expulsion from  amongst the sanctions that may be exercised in cases of  breach of privileges by the House of Commons. The facts of the case of expulsion of Mr. Subramaniam  Swamy from Rajya Sabha are narrated by Subhash C.  Kashyap in his 'Parliamentary Procedure' (Vol. 2, p. 1657). It  appears that Rajya Sabha adopted a motion on 2nd September  1976 appointing a Committee to investigate the conduct and  activities of the said member, within and outside the country,  including alleged anti-India propaganda calculated to bring  into disrepute Parliament and other democratic institutions of  the country and generally behaving in a manner unworthy of a  member. The Committee presented report on 12th November  1976 recommending expulsion as his conduct was found to be  derogatory to the dignity of the House and inconsistent with  the standards which it was entitled to expect from its  members. On 15th November 1976, a motion was adopted by  Rajya Sabha expelling the member. Coming to the cases of expulsion from Lok Sabha, the  facts of the case of Mr. H.G. Mudgal have been summarized at  page 262 in Practice and Procedure of Parliament by Kaul and  Shakder (5th  Edn.). Mr. H.G. Mudgal was charged with having  engaged himself in "certain dealings with the Bombay Bullion  Association which include canvassing support and making  propaganda in Parliament on problems like option business,  stamp duty etc. and receipt of financial or business  advantages from the Bombay Bullion Association" in the  discharge of his duty in Parliament. On 8 June, 1951, a  motion for appointment of a Committee to investigate the  conduct and activities of the member was adopted by Lok  Sabha.  The Committee, after inquiry, held that the conduct of  the member was derogatory to the dignity of the House and  inconsistent with the standard which Parliament was entitled  to expect from its members. In pursuance of the report of the  Committee, a motion was brought before the House on 24  September, 1951, to expel Mr. Mudgal from the House. The  member, after participating in the debate, submitted his  resignation to the Deputy Speaker.  When the report of the Committee was being debated, Pt.  Jawahar Lal Nehru, the then Prime Minister of India, spoke at  length on the subject.  His speech rendered in Parliament on  24th September 1951 dealt with the facts of the case as also  his views on the law on the subject.  After noticing that in the  Constitution of India no particular course is laid down in  regard to such matters inasmuch as Article 105(3) refers one  back to the practice in the British House of Commons, this is  what he had to say :-

".. this House as a sovereign  Parliament must have inherently the  right to deal with its own problems as it  chooses and I cannot imagine anybody  doubting that fact. This particular article  throws you back for guidance to the  practice in the British House of  Commons. There is no doubt as to what  the practice in the House of Commons of  the Parliament in the U.K. has been and  is.  Cases have occurred from time to  time there, when the House of Commons  has appointed a Committee and taken  action  ..

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

The question arises whether in the  present case this should be done or  something else. I do submit that it is  perfectly clear that this case is not even a  case which might be called a marginal  case, where people may have two  opinions about it, where one may have  doubts if a certain course suggested is  much too severe. The case, if I may say  so, is as bad as it could well be. If we  consider even such a case as a marginal  case or as one where perhaps a certain  amount of laxity might be shown, I think  it will be unfortunate from a variety of  points of view, more especially because,  this being the first case of its kind coming  up before the House, if the House does  not express its will in such matters in  clear, unambiguous and forceful terms,  then doubts may very well arise in the  public mind as to whether the House is  very definite about such matters or not.   Therefore, I do submit that it has become  a duty for us and an obligation to be

clear, precise and definite. The facts are  clear and precise and the decision should  also be clear and precise and  unambiguous.  And I submit the decision  of the House should be after accepting  the finding of this report, to resolve that  the Member should be expelled from the  House. Therefore, I beg to move:

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

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

The facts of the matter leading to expulsion of Mrs. Indira  Gandhi and two others are summarized at page 263 in

Practice and Procedure of Parliament by Kaul and Shakder (5th  Edn.). On 18th November 1977, a motion was adopted by the  House referring to the Committee of Privileges a question of  breach of privilege and contempt of the House against Mrs.  Indira Gandhi, former Prime Minister, and others regarding  obstruction, intimidation, harassment and institution of false  cases by Mrs. Gandhi and others against certain officials. The Committee of Privileges were of the view that Mrs.  Indira Gandhi had committed a breach of privilege and  contempt of the House by causing obstruction, intimidation,  harassment and institution of false cases against the  concerned officers who were collecting information for answer  to a certain question in the House. The Committee  recommended that Mrs. Indira Gandhi deserved punishment  for the serious breach of privilege and contempt of the House  committed by her but left it to the collective wisdom of the  House to award such punishment as it may deem fit. A resolution was moved to inflict the punishment of  committal and expulsion. In the course of debate on the  motion, Mr. C.M. Stephen, Leader of the Opposition, inter alia,  inviting attention to the full Bench decision of Punjab &  Haryana High Court in the case of Hardwari Lal [ILR (1977)  2 P&H 269] stated that the proposal to expel was "not  countenanced by the Constitution" and the House had no  power to expel an elected member.  Mr. K.S. Hegde, the  Speaker, acknowledged the importance of the constitutional  arguments advanced by Mr. C.M. Stephen. On 19th December  1978, the House adopted a motion resolving that Mrs. Indira  Gandhi be committed to jail till the prorogation of the House  and also be expelled from the membership of the House for the  serious breach of privilege and contempt of the House  committed by her. What was done by the 6th Lok Sabha through the  resolution adopted on 19th December 1978 was undone by the  7th Lok Sabha. It discussed the propriety of the earlier  decision. Certain speeches rendered in the course of the  debate have been relied upon, in extenso, by the learned  counsel and may be taken note of.  Mr. B.R. Bhagat spoke  thus:- "They have committed an error. I am not  going into the morality of it, because I am  on a stronger ground. It is illegal because  there is no jurisdiction.

Coming to the third point the  determination of guilt and adjudication  they are judicial functions in many

countries and, therefore question of  breach of privilege, contempt of the  House, punishment etc. are decided in  the courts of law in them. Only we have  followed the parliamentary system the  Westminster type. In the House of  Commons there the House itself deals  with breach of its privileges, and we have  taken it from them. Therefore, here the  breach of privilege is punished by the  House. But in many other countries  almost all other countries if I may say so,  any breach of privilege of the House is  punished by the courts and therefore, the  point I am making is that the procedure  followed in the Privilege Committee is  very important.  The law of privileges, as I  said is a form of criminal law and I was  making this point that excepting the  House of Commons and here  we have  taken the precedents and conventions  from the House of Commons  in regard  to all other Parliaments this offence or  the contempt of the House or the breach  of privilege of the House is punished by  the courts and therefore, essentially the  law of privileges is a form of criminal law  and often a citizen and his Fundamental  Rights may clash with the concepts of the  dignity of the House and the Legislatures,  their committees and Members. The  essence of criminal law is that it is easily  ascertainable. The law of privileges on the  other hand is bound to remain vague and  somewhat uncertain unless codified. And  here, it has not been codified except in  Rule 222. Whereas in India following the  British practices the House itself judges  the matter it is important to ensure that  the strictest judicial standards and  judicial procedures are followed. This is  very important because my point is that  in the Privileges Committee the  deliberations were neither judicial nor  impartial nor objective, and they did not  follow any established rules of procedure  for even the principles of equity and

natural justice. They were not applied in  dealing with this matter in the case of  Mrs. Gandhi and the two officers and the  principal that justice should not only be  done but also seem to have been done is  totally lacking in this case.  Nothing that  smacks of political vendetta should be  allowed to cloud a judgment as even the  slightest suspicion of the Committee of  Privileges of the House acting on political  consideration or on the strength of the  majority party etc. may tend to destroy  the sanctity and value of the privileges of  the Parliament.   Now, I am dealing only with the  deliberations of the Committee. When the  matter comes before House, then I will  come with it separately. In that, political  vendetta governed the Members of the  Committee. If you take the previous  precedents either here in this Parliament,  or in the House of Commons or in other  Parliaments, you will find that the  decisions of the Privileges Committee  were unanimous. They are not on party  lines.  But in this particular case, not  only the decisions were on party lines,  but there were as many as 6 or 7 Notes  many of them were votes of dissent  though they were not called as such  because this is another matter which I  want to refer quoting: "Under the  Directions of the Speaker" 'there shall be  no Minute of Dissent to the report of a  parliamentary committee  this is a  parliamentary committee  'except the  select committee'. In a Select Committee  or a Joint Select Committee Minutes of  Dissent are appended. In other  parliamentary committees  the Privileges  Committee is a parliamentary committee   under Direction 68(3), "There shall be  no minute of dissent to the report".

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

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

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

Earlier, in the Mudgal case, we have  a precedent. The Committee of the House  gave an opportunity to the accused. He

was allowed the services of a counsel, to  cross-examine witnesses, to present his  own witnesses and to lead his defence  through his counsel. The Committee was  also assailed by the Attorney-General  throughout the examination of the  matter.  This was not given to Mrs. Indira  Gandhi.  This also clearly indicates the  motivations in the Privileges Committee.

Again, the punishment for a breach  of privileges in recent times, this  maximum punishment, this double  punishment of expulsion and  imprisonment, is unheard of an  unprecedented. The recent trend all over  the world is that the House takes as few  cases of privilege as possible. The  minimum punishment is that of either  reprimand or admonition. In this matter  also, the majority decision of the  Privileges Committee showed a bias or  rather a vendetta."

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

trying to manipulate the entire matter."

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

Mr. Jagan Nath Kaushal also referred to the case of  Hardwari Lal and then said :- "When Mrs. Gandhi's case was before the  Parliament, that judgment was in the  field. But nobody just cared to look at  that. The reason is obvious, and the  reason has been given by the friends who  have spoken. The reason is, we had a  pre-determined judge who was not in a  mood to listen to any voice of reason and  I say it is a very sad day when we have to  deal with pre-determined judges. I can  understand a judge not knowing the law,  but it is just unthinkable that a judge  should come to the seat of justice with a  pre-determined mind to convict the  person who is standing before him in the  capacity of an unfortunate accused. It is  the negation of notions of justice.  Therefore, what happened at that time  was that not only Mrs. Gandhi was  punished with imprisonment, but she  was also expelled."

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

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

that the parliamentary practice in India is wholly against  resort to the sanction of expulsion for breach of privileges  under Article 105.   On the question whether power of expulsion exists or  not, divergent views have been expressed by learned members  in the Parliament.   These views deserve to be respected but on  the question whether there exists power of expulsion is a  matter of interpretation of the constitutional provisions, in  particular Article 105(3) and Article 194(3) on which the final  arbiter is this Court and not the Parliament.  

Judicial Review  Manner of Exercise  Law in England  Having held that the power of expulsion can be claimed  by Indian legislature as one of the privileges inherited from the  House of Commons through Article 105(3), the next question  that arises is whether under our jurisprudence is it open to  the court to examine the manner of exercise of the said power  by Parliament as has been sought by the petitioners. The learned counsel for Union of India, as indeed the  learned Additional Solicitor General, were at pains to submit  that the matter falls within the exclusive cognizance of the  legislature, intrusion wherein for purposes of judicial review of  the procedure adopted has always been consistently avoided  by the judicature in England from where the power of  expulsion has been sourced as also expressly prohibited by  the constitutional provisions. The principal arguments on behalf of the Union of India  and of the learned Additional Solicitor General on the plea of  ouster of the court's jurisdiction is that in essence, the  position with regard to justiciability of exercise of  Parliamentary privilege is exactly the same in India as what  exists in England. As seen in Bradlaugh v. Gossett, Courts in  England have recognized the Parliamentary Privilege of  exclusive cognizance over its own proceedings, whereby Courts  will examine existence of a privilege but will decline to interfere  with the manner of its exercise.   The contention of the petitioners, on the other hand, is  that the arguments opposing the judicial review ignore both  the impact in the Indian context of existence of a written  Constitution, as well as the express provisions thereof. It has  been submitted that the English decisions, including  Bradlaugh, cannot be transplanted into the Indian  Constitution and are irrelevant as the position of Parliament in  the United Kingdom is entirely different from that of the Indian  Parliament which is functioning under the Constitution and  powers of which are circumscribed by the Constitution, which

is supreme and not the Parliament.  Against the backdrop of challenge to the jurisdiction of  the court to examine the action of the legislature in the matter  arising out of its privilege and power to punish for contempt,  this court in the case of UP Assembly took note of the law laid  down in a series of cases that came up in England during the  turbulent years of struggle of House of the Commons to assert  its privileges. {Earl of Shaftesbury (86 E.R. 792), Ashby v.  White [(1703-04) 92 E.R. 129], R. v. Paty [(1704) 92 E.R.  232], Case of Murray (95 E.R. 629), Case of Brass Crosby  (95 E.R. 1005), Case of Sir Francis Burdett (104 E.R. 501),  Cases of Stockdale (1836-37), Howard v. Sir William  Gosset (116 E.R. 139) and Bradlaugh v. Gossett [(1884)  L.R. 12 Q.B.D. 271]}. The learned counsel for Union of India quoted extensively  from the judgment in Bradlaugh, mainly the passages  mentioned hereinafter. Lord Colridge CJ observed at page 275 thus:- "------------there is another proposition  equally true, equally well established,  seems to be decisive of the case before us.   What is said or done within the walls of  Parliament cannot be inquired into in a  court of law.  On this point all the judges  in the two great cases which exhaust the  learning on the subject, - Burdett v.  Abbott (14 East, 1, 148) and Stockdale v.  Hansard (9 Ad. & E.I); - are agreed, and  are emphatic. The jurisdiction of the  Houses over their own members, their  right to impose discipline within their  walls, is absolute and exclusive.  To use  the words of Lord Ellenborough, "They  would sink into utter contempt and  inefficiency without it".(14 East, at  p.152.)"  

Stephen J., at page 278, was categorical in his view that  "the House of Commons is not subject to the control of her  Majesty's courts in its administration of that part of the  statute  law which has relation to its own internal  proceedings" and referred in this context to the following:- "Blackstone says (1 Com.163): "The whole  of the law and custom of Parliament has  its original form this one maxim, 'that

whatever matter arises concerning either  House of Parliament ought to be  examined, discussed, and adjudged in  that House to which it relates, and not  elsewhere."  This principle is re-stated  nearly in Blackstone's words by each of  the judges in the case of Stockdale v.  Hansard. (9 Ad. & E.1.)"  

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

Further, at page 285 Stephen J. observed thus:- "I do not say that the resolution of the  House is the judgment of a Court not  subject to our revision; but it has much  in common with such a judgment. The  House of Commons is not a Court of  Justice; but the effect of its privilege to  regulate its own internal concerns  practically invests it with a judicial  character when it has to apply to  particular cases the provisions of Acts of

Parliament. We must presume that it  discharges this function properly and  with due regard to the laws, in the  making of which it has so great a share.  If its determination is not in accordance  with law, this resembles the case of an  error by a judge whose decision is not  subject to appeal."  (Emphasis supplied)

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

The case of Prebble has been mentioned earlier.  The  observations of Privy Council (at page 976 and 980 of the  judgment) have been extracted in earlier part of this judgment.   They have been referred to by the learned counsel for Union of  India for present purposes as well.  The principle of law and  practice that the courts will not allow any challenge to be  made to what is said or done within the walls of Parliament in  performance of its legislative functions and protection of its  established privileges was reiterated in this case on the basis  of, amongst others, the cases of Burdett, Stockdale and  Bradlaugh. Learned counsel for Union of India and learned  Additional Solicitor General, submit that in the case of UP  Assembly, this court was dealing mainly with the powers of  the courts under Article 32 and 226 of the Constitution of  India to entertain petitions challenging legality of committal for  contempt of State legislature on the grounds of breach of  fundamental rights of non-members.  The learned counsel  drew our attention to certain observations made, at page 481- 482 of the judgment, which read as under:- "Mr. Seervai's argument was that though  the resolution appeared to constitute an  infringement of the Parliamentary Oaths  Act, the Court refused to give any relief to  Bradlaugh, and he suggested that a  similar approach should be adopted in  dealing with the present dispute before  us.  The obvious answer to this  contention is that we are not dealing with  any matter relating to the internal  management of the House in the present  proceedings.  We are dealing with the  power of the House to punish citizens for  contempt alleged to have been committed  by them outside the four walls of the  House, and that essentially raises  different considerations."  (Emphasis supplied)

The submission of the learned counsel is that the  view in Bradlaugh that matters of internal management  were beyond the purview of judicial scrutiny had been  followed. This, according to the learned counsel, has been  the consistent view of this court, as can be seen from the

cases of Indira Nehru Gandhi v. Raj Narain [1975 Supp  SCC 1] and P.V. Narasimha Rao v. State (CBI/SPE)  [(1998) 4 SCC 626].  Both the judgments referred to the law  in Bradlaugh, the case of P.V. Narsimha Rao also quoted  with approval Stockdale. In the case of Indira Nehru  Gandhi, the court took note, in Para 70, of the law in  Bradlaugh, in the following words:- "..It was held that the Court  had no power to restrain the executive  officer of the House from carrying out the  order of the House. The reason is that the  House is not subject to the control of the  courts in the administration of the  internal proceedings of the House."

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

In our view, the above observation of this court in the  case of UP Assembly, paraphrasing the position of law and  practice in England on the authority of May's Parliamentary  Practice, refers to enforcement by the legislature of privileges  which had been recognized by the courts.  The observation has  no relevance on the question under consideration in these  matters since the law in England of exclusive cognizance has  no applicability in India which is governed and bound by the  Constitution of India.  Parliamentary privileges vis-`-vis Fundamental Rights  Before considering judicial review in Indian context, it is  appropriate to first examine this aspect.  In the face of  arguments of illegalities in the procedure and the breach of  fundamental rights, it has been strongly contended on behalf  of the Union of India that Parliamentary privileges cannot be  decided against the touchstone of other constitutional  provisions, in general, and fundamental rights, in particular.   In this context, again it is necessary to seek  enlightenment from the judgments in the two cases of Pandit  Sharma as also the UP Assembly case where breach of  fundamental rights had been alleged by the persons facing the

wrong end of the stick.   In the case of Pandit Sharma (I), one of the two  principal points canvassed before the Court revolved around  the question as to whether the privilege of the Legislative  Assembly under Article 194 (3) prevails over the fundamental  rights of the petitioner (non-member in that case) under  Article 19(1)(a).  This contention was sought to be supported  on behalf of the petitioner through a variety of arguments  including the plea that though clause (3) of Article 194 had  not, in terms, been made "subject to the provision of the  Constitution" it would not necessarily mean that it was not so  subject, and that the several clauses of Article 194, or Article  105, should not be treated as distinct and separate provisions  but should be read as a whole and that, so read, all the  clauses should be taken as subject to  the provisions of the  Constitution which would include Article 19(1)(a).  It was also  argued that Article 194 (1), like Article 105 (1), in reality  operates as an abridgement of the fundamental rights of  freedom of speech conferred by Article 19(1) (a) when exercised  in Parliament or the State Legislature, as the case may be, but  Article 194 (3) does not purport to be an exception to Article  19(1) (a). It was then submitted that Article 19 enunciates a  transcendental principle and confers on the citizens of India  indefeasible fundamental rights of a permanent nature while  the second part of Article 194 (3) was of the nature of a  transitory provision which, from its very nature, could not  override the fundamental rights. Further, the contention  raised was that if in pursuance of Article 105 (3), Parliament  were to make a law under entry 74 in List I to the Seventh  Schedule defining the powers, privileges and immunities of the  Houses of Parliament and if the powers, privileges and  immunities so defined were repugnant to the fundamental  rights of the citizens, such law will, under Article 13, to the  extent of such repugnancy be void and this being the intention  of the Constitution-makers and there being no apparent  indication of a different intention in the latter part of the same  clause, the powers & privileges of the House of Commons  conferred by the latter part of clause (3) must also be taken as  subject to the fundamental rights. The arguments of the petitioner to above effect, however,  did not find favour with the Court. It was, inter alia, held that  the subject matter of each of the four clauses of Article 194  (which more or less correspond to Article 105) was different.  While clause (1) had been expressly made subject to the  provisions of the Constitution, the remaining clauses had not  been stated to be so subject, indicating that the Constitution  makers did not intend clauses (2) to (4) to be subject to the

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

Pandit Sharma had also invoked Article 21 to contend  that the proceedings before the Committee of Privileges of the  Legislative Assembly threatened to deprive him of personal  liberty otherwise than in accordance with the procedure  established by law. This Court, however, found that the  Legislative Assembly had framed rules of procedure under  Article 208 and, therefore, if the petitioner was eventually

deprived of his personal liberty as a result of the proceedings  before the Committee of Privileges, such deprivation would be  in accordance with the procedure established by law and,  therefore, a complaint of breach of fundamental rights under  Article 21 could not be made.  The Court then proceeded to  examine the case to test the contention that the procedure  adopted by the Legislative Assembly was not in accordance  with the standing orders laying down the rules of procedure  governing the conduct of its business made in exercise of  powers under Article 208. It is not possible to overlook developments in law post  Pandit Sharma, including UP Assembly case. In the course of addressing the issues raised in the case  of UP Assembly, this court had the occasion to examine both  parts of clause (3) of Article 194. Article 194 (1) provides  "freedom of speech" in the legislature, though subject to  provision of the Constitution and to the rules and standing  orders regulating the procedure of the House in question.  Article 194 (2) creates an absolute immunity, in favour of  members of the legislature, against liability to any proceedings  in any court in respect of anything said or any vote given by  them in the legislative body or any committees thereof. The  first part of the clause (3) empowers the legislature to define  "by law" the powers, privileges and immunities of the House,  its members and the committees thereof, in respect other than  those covered by the earlier two clauses of Article 194. While construing the effect of the expression "subject to  the provisions of this Constitution and to the rules and  standing orders regulating the procedure of the legislature" as  used in Clause (1) of Article 194 which has been omitted in the  remaining clauses of the said Article, at page 443 this court  observed as under:- "It will thus be seen that all the 4 clauses  of the Article 194 are not in terms made  subject to the provisions contained in  Part III.  In fact, clause (2) is couched in  such wide terms that in exercising the  rights conferred on them by cl.(1), if the  legislators by their speeches contravene  any of the fundamental rights guaranteed  by Part III, they would not be liable for  any action in any court.  Nevertheless, if  for other valid considerations, it appears  that the contents of cl.(3) may not  exclude the applicability of certain  relevant provisions of the Constitution, it  would not be reasonable to suggest that

those provisions must be ignored just  because the said clause does not open  with the words "subject to the other  provisions of the Constitution."  In  dealing with the effect of the provisions  contained in cl. (3) of Art. 194, wherever  it appears that there is a conflict between  the said provisions and the provisions  pertaining to fundamental rights, an  attempt will have to be made to resolve  the said conflict by the adoption of the  rule of harmonious construction" (Emphasis supplied)

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

This was reiterated yet again at page 497 of the said  judgment in the following words:- "-----------------that is one reason why the  Constitution-makers thought it necessary  that the legislatures should in due course  enact laws in respect of their powers,  privileges and immunities, because they  knew that when such laws are made,  they would be subject to the fundamental  rights and would be open to examination  by the courts in India. Pending the  making of such laws, powers, privileges  and immunities were conferred by the  latter part of Article 194(3). As we have

already emphasised, the construction of  this part of the article is within the  jurisdiction of this Court, and in  construing this part, we have to bear in  mind the other relevant and material  provisions of the  Constitution." (Emphasis supplied)

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

The Court proceeded to examine the applicability of  Article 20 to the exercises of power and privilege under Article  194 (3) and the right of the citizen to approach this Court for  redressal under Article 32.  In this context, in Para 125 (at  pages 492-93), it was held:- "..If Article 21 applies, Article  20 may conceivably apply, and the

question may arise, if a citizen complains  that his fundamental right had been  contravened either under Article 20 or  Article 21, can he or can he not move this  Court under Article 32? For the purpose  of making the point which we are  discussing, the applicability of Article 21  itself would be enough. If a citizen moves  this Court and complains that his  fundamental right under Article 21 had  been contravened, it would plainly be the  duty of this Court to examine the merits  of the said contention, and that inevitably  raises the question as to whether the  personal liberty of the citizen has been  taken away according to the procedure  established by law. In fact, this question  was actually considered by this Court in  the case of Pandit Sharma [(1959) Supp.  1 SCR 806]. It is true that the answer  was made in favour of the legislature: but  that is wholly immaterial for the purpose  of the present discussion. If in a given  case, the allegation made by the citizen is  that he has been deprived of his liberty  not in accordance with law, but for  capricious or mala fide reasons, this  Court will have to examine the validity of  the said contention, and it would be no  answer in such a case to say that the  warrant issued against the citizen is a  general warrant and a general warrant  must stop all further judicial inquiry and  scrutiny. In our opinion, therefore, the  impact of the fundamental constitutional  right conferred on Indian citizens by  Article 32 on the construction of the  latter part of Article 194(3) is decisively  against the view that a power or privilege  can be claimed by the House, though it  may be inconsistent with Article 21. In  this connection, it may be relevant to  recall that the rules which the House has  to make for regulating its procedure and  the conduct of its business have to be  subject to the provisions of the  Constitution under Article 208(1)."

(Emphasis supplied)

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

Referring to the above observations the learned  Additional Solicitor General submitted that this observation  may be relevant to Article 21 in the limited context but cannot  be applied to all the fundamental rights.  It is the contention of  the learned counsel for Union of India and the learned  Additional Solicitor General that the case of UP Assembly was  restricted to the consideration of the exclusiveness of the right  of the Legislative Assembly to claim a general warrant issued  by it in respect of its contempt alleged to have been committed  by a citizen who was not a member of the House outside the  four-walls of the House and to the jurisdiction of the High  Court to entertain a Habeas Corpus petition on the allegations  of breach of fundamental rights of the said citizen. The learned  counsel would point out that the majority judgment in the  course of setting out its conclusions pre-faced its answer with  the observation that "the answer is confined to cases in  relation to contempt alleged to have been committed by a  citizen who is not a member of the House outside the four- walls of the legislative chamber". The submission of the  learned counsel is that the Court in the said case had  deliberately omitted reference to infringement of privileges and  immunities of the Legislature other than those with which it  was concerned in the said matter and, therefore, the views  taken with regard to applicability of Article 20 or Article 21  could not be taken as law settled. The learned counsel for Union of India further submitted  that in exercise of the privileges of the House to regulate its  own proceedings including the power to expel a member, it  does not engage Article 14 or Article 19.  He referred to the  judgment of Canada Supreme Court in New Brunswick  Broadcasting Corporation v. Nova Scotia Speaker [1993  (1) SCR 391], in particular, the observations (page 373) to the

following effect:- "It is a basic rule, not disputed in this  case, that one part of the Constitution  cannot be abrogated or diminished by  another part of the Constitution:  Reference re  Bill 30, An Act to amend the  Education Act (Ont.), [1987] 1 SCR 1148.   So if the privilege to expel strangers from  the legislative assembly is constitutional,  it cannot be abrogated by the Charter,  even if the Charter otherwise applies to  the body making the ruling.  This raises  the critical question: is the privilege of the  legislative assembly to exclude strangers  from its chamber a constitutional power?"  

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

review lies."

Xxxxxxxxxxxxxxxxxxxx

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

We may note that observations made by Canadian  Supreme Court in  House of Commons v. Vaid [(2005) 1 SCR  667] show that even in Canada, the approach is on change.   In Vaid, it is observed that "over the years, the assertion of  parliamentary privilege has varied in its scope and content".   Further, the court comments that much more recently the  Speaker in Canada stated "In my view, parliamentary privilege  does not go much beyond the right of free speech in the House  of Commons and the right of a member to discharge his duties  as a member of the House of Commons" (page 682).  Be that  as it may, in our considered opinion, the law laid down by the  Supreme Court of Canada has to be construed in the light of  Constitutional and statutory provisions in vogue in that  jurisdiction and have no relevance here in as much as it has  already been settled in the aforementioned cases by this Court  that the manner of enforcement of privilege by the legislature  can result in judicial scrutiny on the touch-stone of Articles 20  or 21, though subject to the restrictions contained in the other  Constitutional provision, for example Article 212 (1) in the  case of legislative assembly of the State (corresponding to  Article 122 in the case of Parliament).  We are unable to accept the argument of the learned  Counsel for Union of India for the simple reason that what this  Court "deliberately omitted" to do in the case of UP Assembly  was consideration of the powers, privileges and immunities  other than the contempt jurisdiction of the Legislature. The  views expressed as to the applicability of Article 20 and Article  21 in the context of manner of exercise of the powers and

privileges of the Legislative Assembly are of general import and  cannot be wished away. They would hold good not merely  against a non-member as was the case in that Reference but  even against a member of the Legislature who also is a citizen  of this country and entitled to the protection of the same  fundamental rights, especially when the impugned action  entails civil consequences. In the light of law laid down in the two cases of Pandit  Sharma and in the case of UP Assembly, we hold that the  broad contention on behalf of the Union of India that the  exercise of Parliamentary privileges cannot be decided against  the touchstone of fundamental rights or the constitutional  provisions is not correct.  In the case of Pandit Sharma the  manner of exercise of the privilege claimed by the Bihar  Legislative Assembly was tested against the "procedure  established by law" and thus on the touchstone of Article 21.   It is a different matter that the requirements of Article 21, as  at the time understood in its restrictive meaning, were found  satisfied. The point to be noted here is that Article 21 was  found applicable and the procedure of the legislature was  tested on its anvil. This view was followed in the case of UP  Assembly which added the enforceability of Article 20 to the  fray. When the cases of Pandit Sharma and UP Assembly  were decided, Article 21 was construed in a limited sense,  mainly on the strength of law laid down in A.K. Gopalan v.  State of Madras [1950 SCR 88], in which a Constitution  Bench of this Court had held that operation of each Article of  the Constitution and its effect on the protection of  fundamental rights was required to be measured  independently.  The law underwent a total transformation  when a Constitution Bench (11 Judges) in Rustom Cavasjee  Cooper v. Union of India [(1970) 1 SCC 248] held that all the  provisions of the Constitution are required to be read  conjointly as to the effect and operation of fundamental rights  of the citizens when the State action infringed the rights of the  individual.  The jurisprudence on the subject has been  summarized by this Court in Para 27 of the judgment in  Ashok Kumar Gupta v. State of U.P. [(1997) 5 SCC 201], in  the following words :- "27. In A.K. Gopalan v. State of Madras  [1950 SCR 88], per majority, the  Constitution Bench had held that the  operation of each article of the  Constitution and its effect on the  protection of fundamental rights is  required to be measured independently

and not in conjoint consideration of all  the relevant provisions. The above ratio  was overruled by a Bench of 11 Judges in  Rustom Cavasjee Cooper v. Union of India  [(1970) 1 SCC 248]. This Court had held  that all the provisions of the Constitution  conjointly be read on the effect and  operation of fundamental right of the  citizens when the State action infringes  the right of the individual. In D.T.C. case  [1991 Supp (1) SCC 600] (SCC at  pp. 750-51, paras 297 and 298) it was  held that: "It is well-settled constitutional law  that different articles in the chapter  on Fundamental Rights and the  Directive Principles in Part IV of the  Constitution must be read as an  integral and incorporeal whole with  possible overlapping with the  subject-matter of what is to be  protected by its various provisions  particularly the Fundamental  Rights. ... The nature and content of the  protection of the fundamental rights  is measured not by the operation of  the State action upon the rights of  the individual but by its objects. The  validity of the State action must be  adjudged in the light of its operation  upon the rights of the individuals or  groups of individuals in all their  dimensions. It is not the object of  the authority making the law  impairing the right of the citizen nor  the form of action taken that  determines the protection he can  claim; it is the effect of the law and  of the action upon the right which  attract the jurisdiction of the court  to grant relief. In Minerva Mills Ltd.  v. Union of India [(1980) 3 SCC 625]  the fundamental rights and directive  principles are held to be the  conscience of the Constitution and  disregard of either would upset the

equibalance built up therein. In  Maneka Gandhi case [(1978) 1 SCC  248] it was held that different  articles in the chapter of  fundamental rights of the  Constitution must be read as an  integral whole, with possible  overlapping of the subject-matter of  what is sought to be protected by its  various provisions particularly by  articles relating to fundamental  rights contained in Part III of the  Constitution do not represent  entirely separate streams of rights  which do not mingle at many points.  They are all parts of an integrated  scheme in the Constitution. Their  waters must mix to constitute that  grand flow of unimpeded and  impartial justice; social, economic  and political, and of equality of  status and opportunity which imply  absence of unreasonable or unfair  discrimination between individuals  or groups or classes. The  fundamental rights protected by  Part III of the Constitution, out of  which Articles 14, 19 and 21 are the  most frequently invoked to test the  validity of executive as well as  legislative actions when these  actions are subjected to judicial  scrutiny. Fundamental rights are  necessary means to develop one's  own personality and to carve out  one's own life in the manner one  likes best, subject to reasonable  restrictions imposed in the  paramount interest of the society  and to a just, fair and reasonable  procedure. The effect of restriction  or deprivation and not of the form  adopted to deprive the right is the  conclusive test."  (Emphasis supplied)

The enforceability of Article 21 in relation to the manner

of exercise of Parliamentary privilege, as affirmed in the cases  of Pandit Sharma and UP Assembly has to be understood in  light of the expanded scope of the said fundamental right  interpreted as above.   It is to be remembered that the plenitude of powers  possessed by the Parliament under the written Constitution is  subject to legislative competence and restrictions of  fundamental rights and that in case a member's personal  liberty was threatened by imprisonment of committal in  execution of Parliamentary privilege, Article 21 would be  attracted.   If it were so, we are unable to fathom any reason why the  general proposition that fundamental rights cannot be invoked  in matters concerning Parliamentary privileges should be  accepted.  Further, there is no reason why the member, or  indeed a non-member, should not be entitled to the protection  of Article 21, or for that matter Article 20, in case the exercise  of Parliamentary privilege contemplates a sanction other than  that of committal. Judicial Review  Effect of Article 122  

It is the contention of the learned Counsel for Union of  India that it should be left to the wisdom of the legislature to  decide as to on what occasion and in what manner the power  is to be exercised especially as the Constitution gives to it the  liberty of making rules for regulating its procedure and the  conduct of its business. He would refer to Article 122 (1) to  argue that the validity of proceedings in Parliament is a matter  which is expressly beyond the gaze of, or scrutiny by, the  judicature. It has been the contention on behalf of the Union  of India that the principle of exclusive cognizance of  Parliament in relation to its privileges under Article 105  constitutes a bar on the jurisdiction of the Court which is of  equal weight as other provisions of the Constitution including  those contained in Part III and, therefore, the manner of  enforcement of the privilege cannot be tested on the  touchstone of other such constitutional provisions, also in  view of the prohibition contained in Article 122. The issue of jurisdiction was one of the principal  concerns of this court in the case of UP Assembly, under the  cover of which the Uttar Pradesh Legislative Assembly had  asserted its right to commit Keshav Singh for contempt and  later had taken umbrage against the entertainment of a  petition for habeas corpus in the High Court under Article  226. The main controversy in that case squarely lay in the  question as to whether the legislature was "the sole and  exclusive judge" of the issue of contempt and of the

punishment that deserved to be awarded against the  contemnor, as against the jurisdiction claimed by the High  Court to entertain a writ challenging the validity of the  detention of the alleging contemnor. In the case of Pandit Sharma (II), while dealing with the  questions raised as to the regularity of the procedure adopted  by the House of the legislature, this court inter alia observed  as under at page 105:- ".the validity of the proceedings  inside the Legislature of a State cannot  be called in question on the allegation  that the procedure laid down by the law  had not been strictly followed. Article 212  of the Constitution is a complete answer  to this part of the contention raised on  behalf of the petitioner. No Court can go  into those questions which are within the  special jurisdiction of the Legislature  itself, which has the power to conduct its  own business." (Emphasis supplied)

The question of extent of judicial review of Parliamentary  matters has to be resolved with reference to the provision  contained in Article 122 (1) that corresponds to Article 212  referred to in Pandit Sharma (II). On a plain reading, Article  122 (1) prohibits "the validity of any proceedings in  Parliament" from being "called in question" in a court merely  on the ground of "irregularity of procedure". In other words,  the procedural irregularities cannot be used by the court to  undo or vitiate what happens within the four walls of the  legislature. But then, 'procedural irregularity' stands in stark  contrast to 'substantive illegality' which cannot be found  included in the former. We are of the considered view that this  specific provision with regard to check on the role of the  judicial organ vis-`-vis proceedings in Parliament uses  language which is neither vague nor ambiguous and,  therefore, must be treated as the constitutional mandate on  the subject, rendering unnecessary search for an answer  elsewhere or invocation of principles of harmonious  construction. Article 122 corresponds to Draft Article 101 which was  considered by the Constituent Assembly on 23rd May 1949.   Though the marginal note of the Article "Courts not to enquire  into proceedings of Parliament" clearly indicates the import of  the provision contained therein, Mr. H.V. Kamath introduced  an amendment that the words "in any court" be inserted after

the words "called in question" in Clause I.  Answering to the  debate that had followed, Dr. B.R. Ambedkar intervened and  clarified as under:- "The Honourable Dr. B.R. Ambedkar :  Sir, with regard to the amendment of Mr.  Kamath, I do not think it is necessary,  because where can the proceedings of  Parliament be questioned in a legal  manner except in a court?  Therefore the  only place where the proceedings of  Parliament can be questioned in a legal  manner and legal sanction obtained is  the court. Therefore it is unnecessary to  mention the words which Mr. Kamath  wants in his amendment.

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

The above indeed was a categorical clarification that  Article 122 does contemplate control by the courts over legality  of Parliamentary proceedings.  What the provision intended to  prohibit thus were cases of interference with internal  Parliamentary proceedings on the ground of mere procedural  irregularity. That the English cases laying down the principle of  exclusive cognizance of the Parliament, including the case of  Bradlaugh, arise out of a jurisdiction controlled by the  constitutional principle of sovereignty of Parliament cannot be  lost sight of. In contrast, the system of governance in India is  founded on the norm of supremacy of the Constitution which  is fundamental to the existence of the Federal State. Referring  to the distinction between a written Federal Constitution  founded on the distribution of limited Executive, Legislative  and Judicial authority among bodies which are coordinate  with and independent of each other on the one hand and the  system of governance in England controlled by a sovereign  Parliament which has the right to make or unmake any law  whatever, this Court in the case of UP Assembly concluded

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

40. In a democratic country governed by  a written Constitution, it is the  Constitution which is supreme and  sovereign. It is no doubt true that the  Constitution itself can be amended by the  Parliament, but that is possible because  Article 368 of the Constitution itself  makes a provision in that behalf, and the  amendment of the Constitution can be  validly made only by following the  procedure prescribed by the said article.  That shows that even when the  Parliament purports to amend the

Constitution, it has to comply with the  relevant mandate of the Constitution  itself. Legislators, Ministers, and Judges  all take oath of allegiance to the  Constitution, for it is by the relevant  provisions of the Constitution that they  derive their authority and jurisdiction  and it is to the provisions of the  Constitution that they owe allegiance.  Therefore, there can be no doubt that the  sovereignty which can be claimed by the  Parliament in England cannot be claimed  by any legislature in India in the literal  absolute sense."  (Emphasis supplied)

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

sovereignty do not obtain and the concept  is one of 'limited government'. Judicial  review is, indeed, an incident of and flows  from this concept of the fundamental and  the higher law being the touchstone of  the limits of the powers of the various  organs of the State which derive power  and authority under the Constitution and  that the judicial wing is the interpreter of  the Constitution and, therefore, of the  limits of authority of the different organs  of the State. It is to be noted that the  British Parliament with the Crown is  supreme and its powers are unlimited  and courts have no power of judicial  review of legislation.  

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

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

66. The principles in Bradlaugh [(1884)12  QBD 271 : 50 LT 620] is that even a  statutory right if it related to the sphere  where Parliament and not the courts had  exclusive jurisdiction would be a matter  of the Parliament's own concern. But the  principle cannot be extended where the  matter is not merely one of procedure but  of substantive law concerning matters  beyond the parliamentary procedure.  Even in matters of procedure the  constitutional provisions are binding as  the legislations are enforceable. Of the  interpretation of the Constitution and as  to what law is the courts have the

constitutional duty to say what the law  is. The question whether the motion has  lapsed is a matter to be pronounced upon  the basis of the provisions of the  Constitution and the relevant laws.  Indeed, the learned Attorney General  submitted that the question whether as  an interpretation of the constitutional  processes and laws, such a motion lapses  or not is exclusively for the courts to  decide."  

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

executive or it was founded on no  evidence."

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

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

Article 191 relates to disqualifications for membership of  the State Legislature. The authority to decide the questions  arising as a result is vested in the Governor whose decision,  according to Article 192(1), "shall be final". Tenth Schedule was added to the Constitution by the

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

It was in the context of these provisions that questions  relating to the parameters of judicial review of the exercise of a  constitutional power in the face of constitutional bar on the  jurisdiction of the Court arose before a Constitution Bench of  this Court in the case of Kihoto Hollohan v. Zachillhu [1992  Supp (2) SCC 651].  The matter was examined by this Court  with reference, amongst others, to the immunity under Article  122, exclusivity of the jurisdiction vested in the authority  mentioned in the Tenth Schedule and the concept of "finality",  in addition to an express bar making it a non-justiciable area.   Construing the word "finality" and referring, inter alia, to  interpretation of similar finality clause in Article 217(3) in the  case of Jyoti Prakash Mitter and in Article 311(3) as  construed in Tulsiram Patel, this Court held that the  determinative jurisdiction of the Speaker or the Chairman in  the Tenth Schedule was a judicial power and it was  inappropriate to claim that it was within the non-justiciable  legislative area.  The Court referred to the case of Express  Newspaper (P) Ltd. v. Union of India [AIR 1958 SC 578]  and quoted the exposition as to what distinguishes a judicial  power from a legislative power in Australian Boot Trade  Employees Federation v. Whybrow & Co. [(1910) 10 CLR  266] by Issacs, J. as under:-

"If the dispute is as to the relative rights  of parties as they rest on past or present  circumstances, the award is in the nature  of a judgment, which might have been the  decree of an ordinary judicial tribunal  acting under the ordinary judicial power.  There the law applicable to the case must  be observed. If, however, the dispute is as  to what shall in the future be the mutual  rights and responsibilities of the parties   in other words, if no present rights are  asserted or denied, but a future rule of  conduct is to be prescribed, thus creating  new rights and obligations, with  sanctions for non-conformity  then the  determination that so prescribes, call it  an award, or arbitration, determination,  or decision or what you will, is essentially  of a legislative character, and limited only  by the law which authorises it. If, again,  there are neither present rights asserted,  nor a future rule of conduct prescribed,  but merely a fact ascertained necessary  for the practical effectuation of admitted  rights, the proceeding, though called an  arbitration, is rather in the nature of an  appraisement or ministerial act."       (Emphasis supplied)

The following observations in the judgment in Kihoto  Hollohan need to be quoted in extenso:- "96. The fiction in Paragraph 6(2),  indeed, places it in the first clause of  Article 122 or 212, as the case may be.  The words "proceedings in Parliament" or  "proceedings in the legislature of a State"  in Paragraph 6(2) have their  corresponding expression in Articles  122(1) and 212(1) respectively. This  attracts an immunity from mere  irregularities of procedures.   99. Where there is a lis  an  affirmation by one party and denial by  another  and the dispute necessarily  involves a decision on the rights and  obligations of the parties to it and the

authority is called upon to decide it,  there is an exercise of judicial power.  That authority is called a Tribunal, if it  does not have all the trappings of a  Court. In Associated Cement Companies  Ltd. v. P.N. Sharma, (1965) 2 SCR 366,  this Court said: (SCR pp. 386-87)

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

101. In the operative conclusions we  pronounced on November 12, 1991 we  indicated in clauses (G) and (H) therein  that judicial review in the area is limited  in the manner indicated. If the  adjudicatory authority is a tribunal, as  indeed we have held it to be, why, then,  should its scope be so limited? The  finality clause in Paragraph 6 does not  completely exclude the jurisdiction of the  courts under Articles 136, 226 and 227 of  the Constitution. But it does have the  effect of limiting the scope of the  jurisdiction. The principle that is applied  by the courts is that in spite of a finality  clause it is open to the court to examine

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

109. In the light of the decisions referred

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

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

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

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

That the deeming provision in  Paragraph 6(2) of the Tenth  Schedule attracts an immunity  analogous to that in Articles 122(1)  and 212(1) of the Constitution as  understood and explained in Keshav

Singh case to protect the validity of  proceedings from mere irregularities  of procedure. The deeming  provision, having regard to the  words 'be deemed to be proceedings  in Parliament' or 'proceedings in the  legislature of a State' confines the  scope of the fiction accordingly.

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

In answer to the above submissions, the learned counsel  for Union of India would argue that the actions of Houses of  Parliament in exercise of their powers and privileges under  Article 105 cannot be subjected to the same parameters of  judicial review as applied to other authorities. He would  submit that it was clarified in the case of Kihoto Hollohan  that the authority mentioned in the Tenth Schedule was a  Tribunal and the proceedings of disqualification before it are  not proceedings before the House and thus the decision under  Para 6(1) of the Tenth Schedule is not a decision of the House  nor is it subject to the approval of the House and rather  operates independently of the House. He would submit that  the decision of the House in regulating its own proceedings  including in the matter of expulsion of a member for breach of  privilege cannot be equated to the decision of such authority  as mentioned in the Tenth Schedule and the House in such  proceedings is not required to act in a quasi-judicial manner.   He would, in the same breath, concede that the House does  act even in such matters in conformity with rules of natural  justice. In our considered view, the principle that is to be taken  note of in the aforementioned series of cases is that  notwithstanding the existence of finality clauses, this court  exercised its jurisdiction of judicial review whenever and  wherever breach of fundamental rights was alleged.  President  of India while determining the question of age of a Judge of a  High Court under Article 217 (3), or the President of India (or  the Governor, as the case may be) while taking a decision  under Article 311 (3) to dispense with the ordinarily

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

With reference to the above-quoted observations  recognizing the permissibility of scrutiny in a court of law on  allegation that the impugned procedure was illegal or  unconstitutional, the learned Additional Solicitor General  submitted that these observations need to be clarified and the  expression "illegality" must necessarily mean  "unconstitutionality", that is violation of mandatory  constitutional or statutory provisions. The learned Additional Solicitor General has referred to  Tej Kiran Jain v. N. Sanjiva Reddy [(1970) 2 SCC 272].  

This was a matter arising out of a suit claiming damages for  defamatory statement made by the respondent in Parliament.   The suit had been dismissed by the High Court of Delhi in  view of the immunity from judicial redress as stated in Article  105(2).  In this court, the contention urged was that the  immunity granted under Article 105(2) was confined to  "relevant Parliament business" and not to something which is  utterly irrelevant.  This contention was rejected by  Hidayatullah, C.J. through observations in Para 8 that read as  under:- "8. In our judgment it is not possible to  read the provisions of the article in the  way suggested. The article means what it  says in language which could not be  plainer. The article confers immunity  inter alia in respect of "anything said ...  in Parliament". The word "anything" is of  the widest import and is equivalent to  "everything". The only limitation arises  from the words "in Parliament" which  means during the sitting of Parliament  and in the course of the business of  Parliament. We are concerned only with  speeches in Lok Sabha. Once it was  proved that Parliament was sitting and its  business was being transacted, anything  said during the course of that business  was immune from proceedings in any  Court this immunity is not only complete  but is as it should be. It is of the essence  of parliamentary system of Government  that people's representatives should be  free to express themselves without fear of  legal consequences. What they say is only  subject to the discipline of the rules of  Parliament, the good sense of the  members and the control of proceedings  by the Speaker. The Courts have no say  in the matter and should really have  none."

The Ld. Additional Solicitor General has also placed  reliance on certain observations of this court in Indira Nehru  Gandhi vs. Raj Narain [1975 Suppl. SCC 1], in the context  of application of Article 122 on the contentions regarding  unconstitutionality of the Constitution (30th Amendment) Act  1975.  Beg J. in the course of his judgment in Paras 506 &

507 observed as under:- "506.Article 122 of the Constitution  prevents this Court from going into any  question relating to irregularity of  proceedings "in Parliament". XXXXXXXXXXXXXXXX

507.What is alleged by the election  petitioner is that the opposition members  of Parliament, who had been detained  under the preventive detention laws, were  entitled to get notice of the proposed  enactments and the Thirty-ninth  Amendment, so as to be present "in  Parliament", to oppose these changes in  the law. I am afraid, such an objection is  directly covered by the terms of Article  122 which debars every court from  examining the propriety of proceedings  "in Parliament". If any privileges of  members of Parliament were involved, it  was open to them to have the question  raised "in Parliament". There is no  provision of the Constitution which has  been pointed out to us providing for any  notice to each member of Parliament.  That, I think, is also a matter completely  covered by Article 122 of the  Constitution. All that this Court can look  into, in appropriate cases, is whether the  procedure which amounts to legislation  or, in the case of a constitutional  amendment, which is prescribed by  Article 368 of the Constitution, was gone  through at all. As a proof of that,  however, it will accept, as conclusive  evidence, a certificate of the Speaker that  a Bill has been duly passed. (see: State of  Bihar v. Kameshwar(AIR 1952 SC 252,  266: 1952 SCR 889)" (Emphasis supplied)

In the same case construing the effect of the judgment in  the case of Pandit Sharma (II), Beg J. observed as under in  para 508:- "508. Again, this Court has held, in  Sharma v. Sri Krishna(AIR 1960 SC 1186,

1189: (1961) 1 SCR 96) that a notice  issued by the Speaker of a Legislature for  the breach of its privilege cannot be  questioned on the ground that the rules  of procedure relating to proceedings for  breach of privilege have not been  observed. All these are internal matters of  procedure which the Houses of  Parliament themselves regulate."

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

the declaration made in Sub-Committee  on Judicial Accountability that 'a law  made under Article 124(5) will override  the rules made under Article 118 and  shall be binding on both the Houses of  Parliament.  A violation of such a law  would constitute illegality and could not  be immune from judicial scrutiny under  Article 122(1)'.  The scope of permissible  challenge by the concerned Judge to the  order of removal made by the President  under Article 124(4) in the judicial review  available after making of the order of  removal by the President will be  determined on these  considerations........."  (Emphasis supplied)

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

Learned Additional Solicitor General submitted that

having regard to the jurisdiction vested in the judicature  under Articles 32 and 226 of the Constitution on the one hand  and the tasks assigned to the legislature on the other, the two  organs must function rationally, harmoniously and in a spirit  of understanding within their respective spheres for such  harmonious working of the three constituents of the  democratic State alone will help the peaceful development,  growth and stabilization of the democratic way of life in the  country. We are in full agreement with these submissions. The Additional Solicitor General has further submitted  that while having regard to the importance of the functions  discharged by Parliament under the Constitution and the  majesty and grandeur of its task, it being the ultimate  repository of the faith of the people, it must be expected that  Parliament would always perform its functions and exercise its  powers, privileges and immunities in a reasonable manner, the  reasonableness of the manner of exercise not being amenable  to judicial review. His submission is that if Parliament were to  exercise its powers and privileges in a manner violative or  subversive of, or wholly abhorrent to the Constitution, a  limited area of judicial scrutiny would be available, which  limited judicial review would be distinct from the area of  judicial review that is available when administrative exercise of  power under a statute falls for consideration. His argument is  that such limited judicial review is distinct from the exercise of  powers coupled with a purpose and also distinct from judicial  scrutiny on the ground of mala fides. It is his contention that  the courts of judicature in India have the power of judicial  review to determine the existence of privilege but once privilege  is shown to exist, the exercise of that privilege and the manner  of exercise that privilege must be left to the domain of  Parliament without any interference.  Further, learned  Additional Solicitor General submits that while what takes  place within the walls of the Parliament is not available for  scrutiny and even when the Parliament deals with matters  outside its walls, in a matter supported by an acknowledged  privilege, there would be little scrutiny and very limited and  restricted judicial review. We find substance in the submission that it is always  expected, rather it should be a matter of presumption, that  Parliament would always perform its functions and exercise its  powers in a reasonable manner.  But, at the same time there  is no scope for a general rule that the exercise of powers by the  legislature is not amenable to judicial review.  This is neither  the letter nor the spirit of our Constitution.  We find no reason  not to accept that the scope for judicial review in matters  concerning Parliamentary proceedings is limited and

restricted.  In fact this has been done by express prescription  in the constitutional provisions, including the one contained in  Article 122(1).  But our scrutiny cannot stop, as earlier held,  merely on the privilege being found, especially when breach of  other constitutional provisions has been alleged.   It has been submitted by the learned Additional Solicitor  General that judicial review is the ability of the courts to  examine the validity of action. Validity can be tested only with  reference to a norm.  He argues that where judicially  manageable standards, that is normative standards, are not  available, judicial review must be impliedly excluded. He has  submitted that Parliament is not a body inferior to the courts.  An administrative tribunal in whom statutory jurisdiction has  been vested can certainly be subjected to judicial review to  discover errors of fact or errors of law within its jurisdiction,  but Parliament cannot be attributed jurisdictional errors. We find the submissions substantially correct but not  entirely correct.  Non-existence of standards of judicial review  is no reason to conclude that judicial scrutiny is ousted.  If  standards for judicial review of such matters as at hand are  not yet determined, it is time to do so now.  Parliament indeed  is a coordinate organ and its views do deserve deference even  while its acts are amenable to judicial scrutiny.  While its acts,  particularly of the nature involved here ought not to be tested  in the same manner as an ordinary administrative action  would be tested, there is no foundation to the plea that a  Legislative body cannot be attributed jurisdictional error.  The learned Additional Solicitor General would further  argue that the exercise of powers and privileges must not be  treated as exercise of jurisdiction, but in fact exercise of  constituent power to preserve its character. He stated that the  Constitution did not contemplate that the contempt of  authority of Parliament would actually be tried and punished  in a Court of Judicature.  He submitted that the frontiers of  judicial review have now widened in that illegality, irrationality  and procedural impropriety could be causes, but such  principles have absolutely no basis in judging Parliament's  action. While we agree that contempt of authority of Parliament  can be tried and punished nowhere except before it, the  judicial review of the manner of exercise of power of contempt  or privilege does not mean the said jurisdiction is being  usurped by the judicature.  As has been noticed, in the  context of Article 122(1), mere irregularity of the procedure  cannot be a ground of challenge to the proceedings in  Parliament or effect thereof, and while same view can be  adopted as to the element of "irrationality", but in our

constitutional scheme, illegality or unconstitutionality will not  save the Parliamentary proceedings. It is the submission of the learned Additional Solicitor  General that the proceedings in question were proceedings  which were entitled to protection under Article 105(2).  In  other words, in respect of proceedings, if a member is offered  immunity, Parliament too is offered immunity.  The actions of  Parliament, except when they are translated into law, cannot  be questioned in court. We find the argument to be founded on reading of Article  105(2) beyond its context.  What is declared by the said clause  as immune from liability "to any proceedings in any court" is  not any or every act of the Legislative body or members  thereof, but only matters "in respect of anything said or any  vote given" by the members "in Parliament or any Committee  thereof".  If Article 105(2) were to be construed so broadly, it  would tend to save even the legislative Acts from judicial gaze,  which would militate against the constitutional provisions.   The learned Additional Solicitor General would urge that  to view Parliament as a body which is capable of committing  an error in respect of its powers, privileges and immunities  would be an indirect comment that Parliament may act  unwarrantedly.  There is every hope that the Indian  Parliament would never punish one for 'an ugly face', or apply  a principle which is abhorrent to the constitution.  The learned counsel for the petitioners, on the other  hand, have submitted that upon it being found that the  plenitude of powers possessed by the Parliament under the  written Constitution is subject to legislative competence and  restrictions of fundamental rights; the general proposition that  fundamental rights cannot be invoked in matters concerning  Parliamentary privileges being unacceptable; even a member of  legislature being entitled to the protection of Articles 20 & 21  in case the exercise of Parliamentary privilege; and Article  122(1) contemplating the twin test of legality and  constitutionality for any proceedings within the four walls of  Parliament, as against mere procedural irregularity, thereby  displacing the English doctrine of exclusive cognizance of  internal proceedings of the House, the restrictions on judicial  review propagated by  learned Additional Solicitor General do  not deserve to be upheld.  We are of the view that the manner of exercise of the  power or privilege by Parliament is immune from judicial  scrutiny only to the extent indicated in Article 122(1), that is  to say the Court will decline to interfere if the grievance  brought before it is restricted to allegations of "irregularity of  procedure".  But in case gross illegality or violation of

constitutional provisions is shown, the judicial review will not  be inhibited in any manner by Article 122, or for that matter  by Article 105. If one was to accept what was alleged while  rescinding the resolution of expulsion by the 7th Lok Sabha  with conclusion that it was "inconsistent with and violative of  the well-accepted principles of the law of Parliamentary  privilege and the basic safeguards assured to all enshrined in  the Constitution", it would be partisan action in the name of  exercise of privilege.  We are not going into this issue but  citing the incident as an illustration.   Having concluded that this Court has the jurisdiction to  examine the procedure adopted to find if it is vitiated by any  illegality or unconstitutionality, we must now examine the  need for circumspection in judicial review of such matters as  concern the powers and privileges of such august body as the  Parliament.  The learned Counsel for petitioners have submitted that  the expanded understanding of the fundamental rights in  general and Articles 14 and 21 in particular, incorporates  checks on arbitrariness.  They place reliance on the case of  Bachan Singh v. State of Punjab [(1982) 3 SCC 24]. In the case of Bachan Singh, this court, inter alia, held,  that "Article 14 enacts primarily a guarantee against  arbitrariness and inhibits State action, whether legislative or  executive, which suffers from the vice of arbitrariness" and  that "Article 14 . was primarily a guarantee against  arbitrariness in State action".  It was held in the context of  Article 21 that :- "17. The third fundamental right which  strikes against arbitrariness in State  action is that embodied in Article 21.  .  Article 21 affords  protection not only against executive  action but also against legislation and  any law which deprives a person of his  life or personal liberty would be invalid  unless it prescribes a procedure for such  deprivation which is reasonable, fair and  just. The concept of reasonableness, it  was held, runs through the entire fabric  of the Constitution....  ..Every facet of the law which  deprives a person of his life or personal  liberty would therefore have to stand the  test of reasonableness, fairness and  justness in order to be outside the

inhibition of Article 21."   (Emphasis supplied)

It has been submitted by the petitioners that since the  validity of the procedure followed in enforcement of the  privilege by the Houses of Parliament is to be tested on the  touchstone of Article 20 and Article 21, the aforesaid tests of  reasonableness, non-arbitrariness, non-perversity, fairness  and justice come into play even in relation to the action of the  Legislature. On the other hand, learned Additional Solicitor General  submits that the full effect of judicial review with reference to  Article 21 in matters involving claim of privileges by the  legislature was not examined in the cases of Pandit Sharma  or the case of UP Assembly.  He further submits that the  expanded understanding of Article 21, taking into account its  inter-relationship with Articles 14 and 19 pertains to  developments subsequent to the aforementioned cases relating  to privileges of the legislature and that while scrutinizing the  exercise of power by Parliament it would not be possible to  employ either the test of "fair, just and reasonable" or the  principle of reasonableness in administrative action.   The submission further is that the only principle which  can afford judicial review is to examine whether the rule of the  Constitution which pre-supposes the underlying foundation of  separation of powers has not been infringed and a manifest  intrusion into judicial power vested in courts of justice has not  taken place.  To put slightly differently, according to the  learned Additional Solicitor General, the limited judicial review  would involve an inquiry as to whether the Parliament has not  exercised privileges which are really matters covered by a  statute and whose adjudication would involve the exercise of  judicial power conferred by a statute or the Constitution. According to the learned Additional Solicitor General, the  discussion with reference to Article 21 in the case of Pandit  Sharma (I) proceeded upon a demurrer and, therefore, there  was no scope for a full-fledged discussion on the amenability  of the latter part of article 105(3) or Article 194(3) to the  restrictions contained in Article 21. In above context, he would refer to the case of Jatish  Chandra Ghosh v. Hari Sadhan Mukherjee [(1961) 3 SCR  486].  In that case, Dr. Ghosh, a member of the legislative  assembly, had published in a journal certain questions which  he had put in the assembly but which had been disallowed by  the Speaker. The questions disparaged the conduct of the  respondent who filed a criminal complaint against him and  others alleging defamation. Dr. Ghosh pleaded privileges and

immunity under Article 194 as a bar to criminal prosecution.   This claim was negatived, inter alia, on the grounds that the  matter fell clearly outside the scope of Article 194(1) and  Article 194(2) not being applicable since the publication was  not under the authority of the legislature nor could be termed  as something said or vote given in the legislature.  The claim  for immunity under Article 194(3) was also repelled for the  reason the immunity enjoyed by a member of House of  Commons is clearly confined to speeches made in Parliament  and does not extend to the publication of the debate outside.   It was held as under:- "There is no absolute privilege attaching  to the publication of extracts from the  proceedings in the House of Commons  and a member, who has absolute  privilege in respect of his speech in the  House itself, can claim only a qualified  privilege in respect of it if he causes the  same to be published in the public  press."

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

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

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

In the case of T. Venkata Reddy, the relevant  observations in Para 14 read thus:- "14. . . the question is whether  the validity of an Ordinance can be tested  on grounds similar to those on which an  executive or judicial action is tested. The  legislative action under our Constitution  is subject only to the limitations  prescribed by the Constitution and to no  other. Any law made by the Legislature,  which it is not competent to pass, which  is violative of the provisions in Part III of  the Constitution or any other  constitutional provision is ineffective.  .. While the courts can declare  a statute unconstitutional when it  transgresses constitutional limits, they  are precluded from inquiring into the  propriety of the exercise of the legislative  power. It has to be assumed that the  legislative discretion is properly  exercised. The motive of the Legislature in  passing a statute is beyond the scrutiny  of courts. Nor can the courts examine  whether the Legislature had applied its  mind to the provisions of a statute before  passing it. The propriety, expediency and  necessity of a legislative act are for the  determination of the legislative authority  and are not for determination by the  courts. An Ordinance passed either  under Article 123 or under Article 213 of  the Constitution stands on the same

footing. . It cannot be treated  as an executive action or an  administrative decision."  (Emphasis supplied) On the question of mala fide, in the case of Pandit  Sharma (I), it was noticed that allegations in that nature had  been made against the Privileges Committee of the Legislative  Assembly. This Court observed "the Committee of Privileges  ordinarily includes members of all parties represented in the  House and it is difficult to expect that the Committee, as a  body, will be actuated by any mala fide intention against the  petitioner". In the case of U.P. Assembly, after finding that  Article 20 and Article 21 would apply, this Court in Para 125  recognized the permissibility of judicial review in the face of  the impugned action being vitiated on account of caprice or  mala fides, in the following words:-  "If in a given case, the allegation made by  the citizen is that he has been deprived of  his liberty not in accordance with law,  but for capricious or mala fide reasons,  this Court will have to examine the  validity of the said contention, and it  would be no answer in such a case to say  that the warrant issued against the  citizen is a general warrant and a general  warrant must stop all further judicial  inquiry and scrutiny."

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

(Emphasis supplied)

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

policy only could not be subjected to  judicial control. No doubt executive policy  must also be subordinated to  constitutionally sanctioned purposes. It  has its sphere and limitations. But, so  long as it operates within that sphere, its  operations are immune from judicial  interference. This is also a part of the  doctrine of a rough separation of powers  under the Supremacy of the Constitution  repeatedly propounded by this Court and  to which the Court unswervingly adheres  even when its views differ or change on  the correct interpretation of a particular  constitutional provision."  (Emphasis supplied)

We reaffirm the said resolve and find no reason why in  the facts and circumstances at hand this court should take a  different view so as to abandon its constitutional functions as  the final judge of constitutionality of all acts purported to be  done under the authority of the Constitution, though at the  same time refraining from transgressing into the sphere that is  properly the domain of the Parliament. Learned Additional Solicitor General submits that in the  case of UP Assembly, the court had placed reliance on Articles  208 and 212 which contemplate that rules can be framed by  the legislature subject to the provisions of the Constitution  which in turn implies that such rules are compliant with the  fundamental rights guaranteed by Part III.  He submits that if  the rules framed under Article 118 (which corresponds to  Article 208) are consistent with Part III of the Constitution  then the exercise of powers, privileges and immunities is  bound to be a fair exercise and Parliament can be safely  attributed such an intention. While it is true that there is no challenge to the Rules of  Procedure and Conduct of Business in Lok Sabha and Rules of  Procedure and Conduct of Business in the Council of States,  as made by the two Houses of Parliament in exercise of  enabling powers under Article 118 (1), we are of the opinion  that mere availability of Rules is never a guarantee that they  have been duly followed.  What we are concerned with, given  the limits prescribed in Article 122(1), is not "irregularity of  procedure" but illegalities or unconstitutionalities. In the context of the discretionary power conferred on the  Central Government by Section 237(b) of the Companies Act,

1956 to order an investigation into the affairs of a company in  the event of the Government forming an opinion that  circumstances exist suggesting, inter alia, that the business of  the company is being conducted with intent to defraud its  creditors, this Court in the case of Barium Chemicals Ltd.  vs. Company Law Board [AIR 1967 SC 295] held that the  scope for judicial review of the action would be "strictly  limited".  While no difficulty would arise if it could be shown  that no opinion had been formed, it was observed that:- ".there is a difference between not  forming an opinion at all and forming an  opinion upon grounds, which, if a court  could go into that question at all, could  be regarded as inapt or insufficient or  irrelevant."

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

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

In the case of Rohtas Industries Ltd. v. S.D. Agarwal

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

Holding that there must be a real exercise of the power  by the authority, it was further observed that:- "authority must be exercised  honestly and not for corrupt or ulterior  purposes. The authority must form the  requisite opinion honestly and offer  applying its mind to the relevant  materials before it." XXXXXXXXXXX "It 'must act reasonably and not  capriciously or arbitrarily' and that if it  were established that there were no  materials on which requisite opinion  could be formed, the Court could  legitimately 'infer that the authority did  not apply its mind to the relevant facts'."  (Emphasis supplied)

The case of S.R. Bommai v. Union of India [1994 (3)  SCC 1] had given rise to challenge to the constitutional validity  of the proclamation under Article 356 issued by the President,  inter alia, ordering dissolution of the Legislative Assembly of a  State, assuming to himself the functions of the Government of  the State, upon declaration of satisfaction that a situation had  arisen in which government of the said State cannot be carried  on in accordance with the provisions of the Constitution.  The  matter had given rise to questions about the scope of judicial  review of the satisfaction recorded by the President in such  behalf.  It was held through majority by the Constitution  Bench (9 Judges) of this Court that the exercise of power by  the President under Article 356(1) to issue such a  proclamation is subject to judicial review at least to the extent

of examining whether the conditions precedent to the issuance  of the proclamation have been satisfied or not.  For purposes  of such examination, the exercise would necessarily involve  "the scrutiny as to whether there existed material" for such a  satisfaction being arrived at.  It was held that it was not "any  material" but material "which would lead to the conclusion"  requisite for such proclamation and therefore, "the material in  question has to be such as would induce a reasonable man to  come to the conclusion in question".  The Court held that  although "the sufficiency or otherwise of the material cannot  be questioned, the legitimacy of inference drawn from such  material is certainly open to judicial review."  The following  observations appearing in Para 96 of the judgment in the case  of S.R. Bommai need to be quoted in extenso:- "Democracy and federalism are the  essential features of our Constitution and  are part of its basic structure. Any  interpretation that we may place on  Article 356 must, therefore help to  preserve and not subvert their fabric. The  power vested de jure in the President but  de facto in the Council of Ministers under  Article 356 has all the latent capacity to  emasculate the two basic features of the  Constitution and hence it is necessary to  scrutinise the material on the basis of  which the advice is given and the  President forms his satisfaction more  closely and circumspectly. This can be  done by the courts while confining  themselves to the acknowledged  parameters of the judicial review as  discussed above, viz., illegality,  irrationality and mala fides. Such  scrutiny of the material will also be  within the judicially discoverable and  manageable standards."  (Emphasis supplied)

Ramaswamy, J. in his separate judgment in the case of  S.R. Bommai observed in Para 255 as under:- "Judicial review is a basic feature of the  Constitution. This Court/High Courts  have constitutional duty and  responsibility to exercise judicial review  as sentinel on the qui vive. Judicial  review is not concerned with the merits of

the decision, but with the manner in  which the decision was taken."  (Emphasis supplied)

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

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

In Para 215, he held that:- "The doctrine that the satisfaction  reached by an administrative officer  based on irrelevant and relevant grounds  and when some irrelevant grounds were  taken into account, the whole order gets  vitiated has no application to the action  under Article 356. Judicial review of the

Presidential Proclamation is not  concerned with the merits of the decision,  but to the manner in which the decision  had been reached. The satisfaction of the  President cannot be equated with the  discretion conferred upon an  administrative agency, of his subjective  satisfaction upon objective material like  in detention cases, administrative action  or by subordinate legislation. ."  (Emphasis supplied)

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

They also recognized, in Para 375,  the need in such  matters for regard being had to the effect that what was under  the scanner before the adjudicator was the exercise of power  vested in highest constitutional authority.  They held as  under:- "It is necessary to reiterate that the court  must be conscious while examining the  validity of the Proclamation that it is a  power vested in the highest constitutional  functionary of the Nation. The court will  not lightly presume abuse or misuse. The  court would, as it should, tread wearily,  making allowance for the fact that the

President and the Union Council of  Ministers are the best judges of the  situation, that they alone are in  possession of information and material   sensitive in nature sometimes  and that  the Constitution has trusted their  judgment in the matter. But all this does  not mean that the President and the  Union Council of Ministers are the final  arbiters in the matter or that their  opinion is conclusive."  (Emphasis supplied) Jeevan Reddy and Agrawal, JJ., concurred with  Ramaswamy J., by observing, in Para 373, as under:- "So far as the approach adopted by this  Court in Barium Chemicals is concerned,  it is a decision concerning subjective  satisfaction of an authority created by a  statute. The principles evolved then  cannot ipso facto be extended to the  exercise of a constitutional power under  Article 356. Having regard to the fact that  this is a high constitutional power  exercised by the highest constitutional  functionary of the Nation, it may not be  appropriate to adopt the tests applicable  in the case of action taken by statutory or  administrative authorities  nor at any  rate, in their entirety."  (Emphasis supplied)

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

We may summarize the principles that can be culled out  from the above discussion. They are:- a. Parliament is a co-ordinate organ and its views  do deserve deference even while its acts are  amenable to judicial scrutiny;  b. Constitutional system of government abhors  absolutism and it being the cardinal principle  of our Constitution that no one, howsoever  lofty, can claim to be the sole judge of the  power given under the Constitution, mere co- ordinate constitutional status, or even the  status of an exalted constitutional  functionaries, does not disentitle this Court  from exercising its jurisdiction of judicial  review of action which part-take the character  of judicial or quasi-judicial decision; c. The expediency and necessity of exercise of  power or privilege by the legislature are for the  determination of the legislative authority and  not for determination by the courts;

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

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

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

g. While the area of powers, privileges and  immunities of the legislature being exceptional  and extraordinary its acts, particularly relating  to exercise thereof, ought not to be tested on

the traditional parameters of judicial review in  the same manner as an ordinary  administrative action would be tested, and the  Court would confine itself to the acknowledged  parameters of judicial review and within the  judicially discoverable & manageable  standards, there is no foundation to the plea  that a legislative body cannot be attributed  jurisdictional error; h. The Judicature is not prevented from  scrutinizing the validity of the action of the  legislature trespassing on the fundamental  rights conferred on the citizens; i. The broad contention that the exercise of  privileges by legislatures cannot be decided  against the touchstone of fundamental rights  or the constitutional provisions is not correct;  j. If a citizen, whether a non-member or a  member of the Legislature, complains that his  fundamental rights under Article 20 or 21 had  been contravened, it is the duty of this Court  to examine the merits of the said contention,  especially when the impugned action entails  civil consequences; k. There is no basis to claim of bar of exclusive  cognizance or absolute immunity to the  Parliamentary proceedings in Article 105(3) of  the Constitution;  l. The manner of enforcement of privilege by the  legislature can result in judicial scrutiny,  though subject to the restrictions contained in  the other Constitutional provisions, for  example Article 122 or 212; m. Articles 122 (1) and Article 212 (1) displace the  broad doctrine of exclusive cognizance of the  legislature in England of exclusive cognizance  of internal proceedings of the House rendering  irrelevant the case law that emanated from  courts in that jurisdiction; inasmuch as the  same has no application to the system of  governance provided by Constitution of India n. Article 122 (1) and Article 212 (1) prohibit the  validity of any proceedings in legislature from  being called in question in a court merely on  the ground of irregularity of procedure; o. The truth or correctness of the material will  not be questioned by the court nor will it go

into the adequacy of the material or substitute  its opinion for that of the legislature;  p. Ordinarily, the legislature, as a body, cannot  be accused of having acted for an extraneous  purpose or being actuated by caprice or mala  fide intention, and the court will not lightly  presume abuse or misuse, giving allowance for  the fact that the legislature is the best judge of  such matters, but if in a given case, the  allegations to such effect are made, the Court  may examine the validity of the said  contention, the onus on the person alleging  being extremely heavy q. The rules which the legislature has to make for  regulating its procedure and the conduct of its  business have to be subject to the provisions  of the Constitution; r. Mere availability of the Rules of Procedure and  Conduct of Business, as made by the  legislature in exercise of enabling powers  under the Constitution, is never a guarantee  that they have been duly followed; s. The proceedings which may be tainted on  account of substantive or gross illegality or  unconstitutionality are not protected from  judicial scrutiny; t. Even if some of the material on which the  action is taken is found to be irrelevant, the  court would still not interfere so long as there  is some relevant material sustaining the  action; u. An ouster clause attaching finality to a  determination does ordinarily oust the power  of the court to review the decision but not on  grounds of lack of jurisdiction or it being a  nullity for some reason such as gross illegality,  irrationality, violation of constitutional  mandate, mala fides, non-compliance with  rules of natural justice and perversity;  

It can now be examined if the manner of exercise of the  power of expulsion in the cases at hand suffers from any such  illegality or unconstitutionality as to call for interference by  this Court.   Examination of the individual cases of the Petitioners  It is the contention of the petitioners that the impugned  action on the part of each House of Parliament expelling them

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

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

pertains to the disqualification on account of defection. These  provisions have no nexus whatsoever with the exercise of  power of expulsion claimed as a privilege available to the  Houses of Parliament under Article 105(3).  This argument,  therefore, cannot cut any ice in favour of the petitioners. The main thrust of the submissions of the petitioners in  the context of avoidance of settled procedure and mechanism,  however, was on the fact that the machinery of Privileges  Committee for which provision exists in the Rules of Procedure  and Conduct of Business for each of the two Houses was not  resorted to. It has been contended that the matters were  referred, for no just or sufficient reason, to Inquiry Committees  other than the Privileges Committees, in the case of Lok Sabha  to a Committee specially set up for the purpose. This, as per  the arguments vociferously advanced on behalf of the  petitioners, should be held as sufficient to vitiate the whole  process.  Mr. Ram Jethamalani, Senior Advocate went to the  extent of suggesting that the procedure followed was ad-hoc  procedure and, therefore, it could not be claimed by anyone  that the established procedure had been complied with. We find no substance in the abovesaid grievances of the  petitioners.  The matters pertaining to the two Members of  Rajya Sabha were referred to the Committee on Ethics which  is also a mechanism provided by the Rules of Procedure and  Conduct of Business in the said House. While it is correct that  the matters pertaining to the Members of Lok Sabha were  referred to a Committee specially constituted for the purpose  but nothing turns on that fact. It may be observed that under  circumstances in question the composition of the Committee  itself is sufficient to show that it was not a partisan  Committee.  The terms of reference for the Committee required  it to make investigation into the allegations.  The conclusions reached by the Inquiry Committee and  recommendations made have been accepted by passing of  resolutions by the two Houses that have adopted the reports of  the respective Committees. Article 118 empowers each House of Parliament to make  rules for regulating its procedure.  The rules of the procedure  of both Houses permit constitution of Committees.  There is no  illegality attached to constitution of a Special Committee by  the Speaker, Lok Sabha for purposes of investigation into the  allegations against members of the said House. The argument  of ad-hoc procedure, therefore, does not appeal to us. The petitioners' case is that the procedures adopted by  the Committees of the two Houses were neither reasonable nor  fair. Further, they contend that the entire inquiry was  improper and illegal inasmuch as rules of natural justice were

flouted.  In this context, the grievances of the petitioners are  manifold.  They would state that proper opportunity was not  given to them to defend themselves; they were denied the  opportunity of defending themselves through legal counsel or  to give opportunity to explain; the request for supply of the  material, in particular the un-edited versions of videography  for testing the veracity of such evidence was turned down and  doctored or morphed video-clippings were admitted into  evidence, the entire procedure being unduly hurried.  As  already noted the scope of judicial review in these matters is  restricted and limited.  Regarding non-grant of reasonable  opportunity, we reiterate what was recently held in Jagjit  Singh v. State of Haryana & Ors. [WP (C) No. 287 of 2004  decided on 11.12.2006] that the principles of natural justice  are not immutable but are flexible; they cannot be cast in a  rigid mould and put in a straitjacket and the compliance  thereof has to be considered in the facts and circumstances of  each case. We outrightly reject the argument of denial of reasonable  opportunity and also that proceedings were concluded in a  hurry. It has become almost fashionable to raise the banner of  "Justice delayed is justice denied" in case of protracted  proceedings and to argue "Justice hurried is justice buried" if  the results are quick. We cannot draw inferences from the  amount of time taken by the Committees that inquired the  matters as no specific time is or can be prescribed.  Further  such matters are required to be dealt with utmost expedition  subject to grant of reasonable opportunity, which was granted  to the petitioners. As has been pointed out by the learned counsel on behalf  of the Union of India, basing his submissions on the main  report of the Inquiry Committee of Lok Sabha, the request for  supply of full-footage of video recordings and audio tapes or  extension of time or representation through counsel for such  purposes did not find favour with the Inquiry Committee  mainly because the Committee had offered to the concerned  Members of Lok Sabha an opportunity to view the relevant  video-footage that was available with the Committee and point  out the discrepancies therein, if any, to the it. But, as is  mentioned in the report copy of which has been made  available by the Union of India to us, the petitioners  themselves chose to turn down the said offer.  The situation  was almost similar to the one in Jagjit Singh's case. We agree with the submissions of the learned counsel for  Union of India that the Inquiry Committee in the face of the  refusal on the part of the concerned members was fully  justified in not giving any credence to the objections that the

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

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

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

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

Factual Background :

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

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

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

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

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

The Committee is requested to give its Report by 4 p.m. on 21st  December, 2005. The Committee is authorized to follow its

own procedure. The Report will be presented before the House  for its consideration.  

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

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

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

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

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

responsible for inducting members of Parliament into  such activities.  

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

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

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

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

"Members should never expect or accept any fee, remuneration or benefit

for a vote given or not given by them on the floor of the House, for  introducing a Bill, for moving a resolution or desisting from moving a  resolution, putting a question or abstaining from asking a question or  participating in the deliberations of the house or a Parliamentary  Committee."  

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

The Issue :

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

9. When the incident occurred, the response of the Hon. Speaker and the   Parliament, in taking prompt remedial action, against those who were seen

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

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

Where there is manifestly unauthorized exercise of power  under the Constitution, it is the duty of the Court to intervene.  Let it not be forgotten, that to this Court as much as to other  branches of Government, is committed the conservation and  furtherance of democratic values. The Court's task is to identify  those values in the constitutional plan and to work them into life in  the cases that reach the Court.. The Court cannot and should not  shirk this responsibility"  [emphasis supplied]

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

modes of cessation of membership of Parliament; and whether  expulsion by the House, not having been specified as a mode of  cessation of membership, is impermissible.   

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

Relevant Principles :  

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

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

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

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

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

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

"In England, Parliament is sovereign; and in the words of Dicey,  the three distinguishing features of the principle of Parliamentary  Sovereignty are that Parliament has the right to make or unmake  any law whatever; that no person or body is recognized by the law  of England is having a right to override or set aside the legislation  of Parliament; and that the right or power of Parliament extends to  every part of the Queen's dominion. On the other hand, the  essential characteristic of federalism is "the distribution of limited  executive, legislative and judicial authority among bodies which  are co-ordinate with and independent of each others". The  supremacy of the constitution is fundamental to the existence  of a federal State in order to prevent either the legislature of the  federal unit or those of the member States from destroying or  impairing that delicate balance of power which satisfies the  particular requirements of States which are desirous of union, but  not prepared to merge their individuality in a unity. This  supremacy of the constitution is protected by the authority of  an independent judicial body to act as the interpreter of a  scheme of distribution of powers."               

"Therefore, it is necessary to remember that though our  Legislatures have plenary powers, they function within the limits  prescribed by the material and relevant provisions of the  Constitution.  In a democratic country governed by a written  Constitution, it is the Constitution which is supreme and sovereign.  . Therefore, there can be no doubt that the sovereignty which  can be claimed by the Parliament in England, cannot be claimed by  any Legislature in India in the literal absolute sense. We feel no  difficulty in holding that the decision about the construction of  Article 194(3) must ultimately rest exclusively with the Judicature  of this country. "

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

[emphasis supplied]

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

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

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

[emphasis supplied]

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

"But where, as in this country and unlike in England, there is a  written Constitution which constitutes the fundamental and in that  sense a "higher law" and acts as a limitation upon the legislature  and other organs of the State as grantees under the constitution, the  usual incidents of parliamentary sovereignty do not obtain and the  concept is one of 'limited government'. Judicial Review is, indeed,  an incident of and flows from this concept of the fundamental and  the higher law being the touchstone of the limits of the powers of  the various organs of the State which derive power and authority  under the Constitution and that the judicial wing is the interpreter  of the Constitution and, therefore, of the limits of authority of the  different organs of the State. It is to be noted that the British  Parliament with the Crown is supreme and its powers are unlimited  and courts have no power of judicial review of legislation."  

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

II. When a Statute, having made specific provisions for certain  matters, also incorporates by reference an earlier statute, to avoid  reproduction of the matters provided for in the earlier statute,  then what is deemed to be incorporated by such reference, are

only those provisions of the earlier statute which relate to matters  not expressly provided in the latter statute, and which are  compatible with the express provisions of the latter statute.  

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

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

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

"Mr. Seervai's argument  is that the latter part of Art. 194(3)  expressly provides that all the powers which vested in the House of  Commons at the relevant time, vest in the House. This broad claim,  however, cannot be accepted in its entirety, because there are some  powers which cannot obviously be claimed by the House. Take the  privilege of freedom of access which is exercised by the House of  Commons as a body and through its Speaker "to have at all times  the right to petition, counsel, or remonstrate with their Sovereign  through their chosen representative and have a favourable  construction placed on his words was justly regarded by the  Commons as fundamental privilege." It is hardly necessary to point  out that the House cannot claim this privilege. Similarly, the  privilege to pass acts of attainder and the privilege of impeachment  cannot be claimed by the House. The House of Commons also  claims the privilege in regard to its own Constitution. This  privilege is expressed in three ways, first by the order of new writs  to fill vacancies that arise in the Commons in the course of a  Parliament; secondly, by the trial of  controverted elections; and  thirdly, by determining the qualification of its members in cases of  doubt. This privilege again, admittedly, cannot be claimed by the  House. Therefore, it would not be correct to say that all power and  privileges which were possessed by the House of Commons at the  relevant time can be claimed by the House."

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

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

[Emphasis supplied]

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

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

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

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

(239) Similarly not one but there are tens of parliamentary  privileges of the House of Commons which are closely linked with  the hereditary House of Lords in England. In particular the power  of the House of Lords to punish the contemners of the House by  passing judgment as a Court was undoubted. Can one read or even  imagine a House of Lords within our polity when the very  Constitution itself disapproves even a reference to any titles on the  basis of heredity and blood alone? Other examples of this nature  could perhaps be multiplied ad infinitum but it would perhaps

suffice to mention two other undoubted privileges of the House of  Commons. It is not in dispute that the said House had a relatively  unrestricted power of impeachment whereby it acted as the  prosecutor whilst the House of Lords was the final Court or  adjudicator for the same. Would it be possible to assume within  our Constitution any such general parliamentary privilege of  impeachment (apart from those which the Constitution in terms  confers) or by analogy to place the Rajya Sabha in the peculiar  historical position which the House of Lords as the final Court in  England? Again closely inter-related to this general power of  impeachment in the House of Commons was the privilege to pass  Acts or Attainder which in terms and effect meant an unrestricted  right to pass judgment during the course of impeachment. Can one  for a moment read such a power or privilege in favour of the State  Legislatures in India?

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

[emphasis supplied]

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

19. Constitution of India differs  significantly  from  Constitutions of  other countries. It was made in the background of historical, social and  economic problems of this country. Our Constitution-makers forged  solutions and incorporated them. They made exhaustive provisions relating  to Executive, Legislature, and Judiciary with checks and balances. While

making specific and detailed provisions regarding Parliament, the  Constitution also earmarked the areas where further provisions could be  made by the Parliament by law. On the other hand, the Constitution of  England is unwritten and flexible. The distribution and regulation of exercise  of governmental power has not been reduced to writing. Further British  Parliament was, at one time, also the highest court of justice and because of  it, regarded as a superior court of record, with all its attendant trappings.  United States has a short and rigid Constitution, expounded considerably by  courts. Indian Constitution is exhaustive and sufficiently expounded by the  Constitution makers themselves. In fact, with 395 Articles and 12 Schedules,   it is the longest among world's Constitutions.

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

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

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

Provisions of Indian Constitution :  

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

21.1) Article 79 relates to Constitution of Parliament and provides that there

shall be a Parliament for the Union which shall consist of the President and  two Houses to be known respectively as the Council of States and the House  of the People. Article 80 provides that the composition of Council of States  shall be made up of twelve members nominated by the President and not  more than 238 representatives of the States and Union Territories. It also  provides that the representatives of each State in the Council of States shall  be elected by the elected members of the Legislative Assembly of the State.  Article 81 relates to composition of Lok Sabha and provides that Lok Sabha  shall consist of not more than 530 members chosen by direct election from  territorial constituencies in the States and not more than 20 members to  represent the Union Territories, chosen in such manner as Parliament may  by law provide. Article 83 prescribes the duration of Houses of Parliament.  Relevant portions thereof are extracted below :  

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

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

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

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

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

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

c) if he is an undischarged insolvent;  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(3) In other respects, the powers, privileges and immunities of each  House of Parliament, and of the members and the committees of each  House, shall be such as may from time to time be defined by Parliament  by law, and, until so defined, shall be those of that House and of its  members and committees immediately before the coming into force of  section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.  

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

21.7) The other provisions of Chapter II, relating to Parliament also require  to be noticed. Article 106 relates to salaries and allowances of members.  Articles 86 to 88 relate to the rights of the President, Ministers and Attorney  General to address the Houses. Articles 89 to 98 relate to the officers of  Parliament. Article 99 provides for oath of office and Article 100 provides  for voting in Houses. Articles 107 to 111 relate to legislative procedure.  Article 107 contains the provisions as to introduction and passing of Bills.  Article 108 relates to joint sitting of both Houses in certain cases. Article  109 relates to special procedure in respect of Money Bills. Article 110

defines "Money Bills". Article 111 requires the presentation of Bills passed  by the Houses of Parliament to the President for his assent. Articles 112 to  117 relate to the procedure in financial matters. Article 112 relates to annual  financial statement. Article 113 relates to the procedure with respect to  estimates. Article 114 relates to appropriation bills. Article 115 relates to  supplementary, additional or excess grants. Article 116 relates to votes on  account, votes of credit and exceptional grants. Article 117 contains special  provisions as to financial bills. Articles 118 to 122 govern the rules of  procedure generally to be adopted by the Houses of Parliament. Article 118  enables each House of Parliament to make rules for regulating, subject to the  provisions of the Constitution, its procedure and the conduct of its business.

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

"122. Courts not to inquire into proceedings of Parliament.(1) The  validity of any proceedings in Parliament shall not be called in question on  the ground of any alleged irregularity of procedure.

(2) No officer or member of Parliament in whom powers are vested by or  under this Constitution for regulating procedure or the conduct of  business, or for maintaining order, in Parliament shall be subject to the  jurisdiction of any court in respect of the exercise by him of those  powers."

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

Subject

(Parliament)  Articles (State  Legislature)  Articles Constitution & Composition of  Houses and election/nomination  of members  79 to 82 168 to 171 Duration of Houses and Tenure  of Office of Members  83 172 Sessions, Prorogation and  dissolution  85 174 Qualification for Membership 84 173 Cessation of membership  (Disqualifications for being  chosen as, and for being a  member, and vacancies) and  decision on questions of  disqualification  102, 101 & 103 192, 190 & 192 Powers, privileges and immunities  of the Legislature, members and  Committees, and salaries &  allowances  105, 122 & 106 194, 212 & 195 Restriction on Powers 121 211 Offices of Legislature 89 to 98 178 to 187 Rules of Procedure and Language 118, 119 & 120 208, 209 & 210 Legislative Procedure and Conduct

of Business 107 to 111 112 to 117 99 & 100 196 to 201 202 to 207 188 & 189 Persons who can address the  Parliament 86 to 88. 175 to 177

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

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

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

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

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

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

Similarly provisions are made in regard to cessation/termination of tenure of  office or removal of all constitutional functionaries with reference to the

States. Article 156(1) relates to Governor, Article 164(1) relates to  Ministers, Article 165(3) relates to Advocate General, Article 179 relates to  Speaker and Deputy Speaker, Article 183 relates to Chairman and Deputy  Chairman of Legislative Council, Articles 190 to 192 relate to Members of  Legislatures and Article 217 relates to High Court Judges.  

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

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

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

iii) If he is an undischarged solvent, vide Article 102(1)(c); iv) If he is not a citizen of India, vide Article 191(1)(d); v) If he is disqualified by or under any law made by Parliament. vi) If he is disqualified under the Tenth Schedule, vide Article 102(2).

Disqualifications have also been prescribed by the Parliament in the  Representation of People Act, 1951 as contemplated under Article 102(1)(e).  The grounds of disqualifications under the said Act are  :

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

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

(iii) if he is dismissed for corruption or for disloyalty to

the State, vide Section 9 of the Act;

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

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

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

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

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

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

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

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

(ii) Occurrence of vacancies, to be provided by a law made by the

Parliament (vide clause (1) of Article 101).

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

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

29. One argument advanced to contend that Article 101 cannot be  considered as exhaustive as to the circumstances in which vacancy occurs in  respect of a seat in the Parliamentary, was that it does not provide for  vacation of seat by death of a Member. Article 101 refers to vacation of seat  by a 'person' who is a member of the House, that is, a person who is alive.  When a person is dead, obviously he is not a Member of the House. It would  be absurd to contend that a person even after death will continue to hold the  seat. The obvious effect of death did not require to be stated and therefore  the non-mention of death as a ground for vacancy does not make Article 101  any less exhaustive.  

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

Conclusions :  

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

32. We have also noticed above that the Constitution makes express  provisions for election/appointment and removal/cessation of service of the   Executive (President and Vice-President), Judiciary (Judges of the Supreme  Court and High Court) and all other constitutional functionaries (Attorney

General, Auditor and Comptroller General, Chief Election Commissioner  etc.). It is therefore inconceivable that the Constitution-makers would have  omitted to provide for 'expulsion' as one of the methods of cessation of  membership or consequential vacancy, if it intended to entrust such power to  the Parliament.    

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

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

"There can be little doubt that the powers, privileges and  immunities which are contemplated by clause (3) are incidental  powers, privileges and immunities which every Legislature must  possess in order that it may be able to function effectively, and that  explains the purpose of the latter part of clause (3)."

[emphasis supplied]

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

35. The appropriate course in case of allegation of corruption against a  Member of Parliament, is to prosecute the member in accordance with law  (The immunity under Article 105(2) may not be available, as the decision in  P.V.Narasimha Rao v. State [1998 (4) SCC 626] recognizes immunity to a  member who is a bribe taker only where the 'bribe' is taken in respect of a  'vote' given by him in Parliament and not otherwise). Such cases can be fast

tracked. Pending such criminal proceedings, the member can be suspended  temporarily, if necessary, so as to prevent him from participating in the  deliberations of the Houses. On being tried, if the member is convicted, he  becomes disqualified for being or continuing as a Member under Article  102(1)(e). If he is acquitted, he is entitled to continue as a member. Though  it may sound cumbersome, that apparently is what the Constitution intends.  

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

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

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  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; "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  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.

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  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.

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)

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  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  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

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  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) 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  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.

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".

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  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  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  unrecognized by law".

Griffith and Ryle in "Parliament, functions, practice  and procedures", (1989), at p.85 stated;

"The reconciliation of these two claims   the need to maintain parliamentary privileges  and the desirability of not abusing them  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 .

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

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  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  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 Commonswho 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 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  of the case appears to me to raise for our  decision is this:Suppose 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  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  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  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 Assemblya 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,  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  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  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;

I am of the opinion that the Legislative  Council has an implied power to expel a  member if it adjudges him to have been guilty of  conduct unworthy of a member.  The nature of  this power is that it is solely defensivea  power to preserve and safeguard the dignity  and honour of the Council and the power  conduct and exercise of its duties.  The power  extends to conduct outside the Council  provided the exercise of the power is solely and  genuinely inspired by the said defensive  objectives.  The manner and the occasion of  the exercise of the power are for the decision of  the Counsel.                      (emphasis supplied)  

Sugerman, J. in concurring opinion formulated the  doctrine of necessity in an effective manner by making  the following instructive observations;

"This necessity compels not only the  conceded power to expulsion 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  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  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. 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 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  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  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  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  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  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  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  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  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. 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. (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

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

his seat shall thereupon become vacant:

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

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

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

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

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

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

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has  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.For 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.

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

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

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.  (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  respect of conduct of any Judge of the Supreme  Court or of a High Court in the discharge of his  duties. Article 122 prohibits courts from inquiring  into or questioning the validity of any proceedings  in Parliament on the ground of irregularity of  procedure. It reads thus; 122. Courts not to inquire into proceedings  of Parliament. (1) The validity of any  proceedings in Parliament shall not be called  in question on the ground of any alleged  irregularity of procedure. (2) No officer or member of Parliament in whom  powers are vested by or under this  Constitution for regulating procedure or the  conduct of business, or for maintaining order,  in Parliament shall be subject to the  jurisdiction of any court in respect of the

exercise by him 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  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  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  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  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  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  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  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  

     (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  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  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  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; the 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  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  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  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

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  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  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 200the 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  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  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 behoves the courts to be ever  sensitive to the paramount need to refrain  from trespassing on the province of Parliament  or, so far as this can be avoided, even  appearing to do so.                   (emphasis supplied)

INDIAN PARLIAMENT HAS NO DUAL CAPACITY 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  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 bodyColonial or

Supremepossesses 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  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  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  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

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  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.

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  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  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  meantime, I am making a personal request to  all of them 'please do not attend the Session of  the House until the matter is looked into and a  decision is taken' I have no manner of doubt  that all sections of the House feel deeply  concerned about it. I know that we should rise  to the occasion and we should see that such an  event does not occur ever in future and if  anybody is guilty, he should be punished.  Nobody would be spared. We shall certainly  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  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  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  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  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.