The Indian constitution is clear that the proceedings in parliament are not subject to judicial scrutiny. It clearly lays down immunities, powers and privileges of members of legislature. The supreme court had endorsed the constitutional position. Parliamentary precedents exist on expulsion
Ashok Kumar Pankaj Rohtak
Parliament and the supreme court of India are poised for a confrontation over the issue of expulsion of 11 members of parliament (MPs) involved in cash-for-question scam. The legal-constitutional question pertains to the exclusive jurisdiction of parliament over its authority to define its privileges and manner to protect and maintain it. The phenomenon of the legislature versus the judiciary is not new to Indian democracy. Indira Gandhi made a series of attempts through 24th, 25th and 42nd constitutional amendments to establish supremacy of parliament over the judiciary. She even tried to demoralise the highest judiciary by appointing a junior judge as the chief justice superseding senior judges. The matter could be settled with the enunciation of the 'basic feature doctrine' in the Keshavananda Bharati case of 1973. The kernel of this judgement is that the Indian constitution has certain basic features, which hold a transcendental position and which cannot be altered by either parliament or supreme court. This judgement was able to establish supremacy of the
constitution but only with respect to its 'basic features'.
The other vibrant and dynamic democracies of the world have also gone through the process of confrontation between the legislature and the judiciary. However, they have settled it in the process of constitutional development. Britain, a classic case of a parliamentary system, easily established legislative supremacy. Parliament is not only supreme vis-à-vis other organs of government but it is supreme vis-à-vis constitution as well. In the British model, the legislative supremacy is also established by the fact that the constitution is unwri-tten and the one chamber of the legislature—house of lords—acts as the highest judiciary of the land. The federal constitution of the United States is organised on the principle of supremacy of the constitution. Its supreme court, therefore, enjoys absolute and extensive power of judicial review. No law of the land is beyond judicial scrutiny.
But the case of Indian constitution is typical because of the adoption of parliamentary and federal features simultaneously. Parliamentary form of government hints at legislative supremacy. But the federal nature of the constitution makes it imperative that the highest judiciary is able to exercise the power of judicial review. The roots of the present problem also lie in the design of the Indian constitution.
On December 12, 2005, eleven MPs, ten from the lok sabha and one from the rajya sabha belonging to mainstream political parties (six from the Bharatiya Janata Party (BJP), three from the Bahujan Samaj Party(BSP), and one each from the Congress and the Rashtriya Janata Dal) were shown in a sting operation on a private TV channel (Aaj Tak) being paid for raising a question in parliament.
Parliament responded quickly by expelling all the eleven MPs who figured in the sting operation. The lok sabha constituted a special (enquiry) committee and the rajya sabha referred the matter to the ethics committee of the house. On the report of the special committee of the lok sabha and ethics committee of the rajya sabha, both the houses expelled the tainted members and terminated their membership by a motion of each house. The motion was passed on the last day of the winter session, December 23, 2005, amidst a walkout by the BJP, the main opposition party in the lok sabha. The BJP already in trouble because of leadership crisis, factional fighting, ideological vacillation, and its vitiating relations with the Rashtriya Swayamsevak Sangh was deeply disturbed. Six out of eleven MPs belonged to the BJP and two of them were ministers in the erstwhile BJP-led national democratic government at the centre.
One expelled member from the BSP, Raja Ram Pal challenged the decision of the lok sabha speaker in the supreme court on two grounds: procedural and legal. His expulsion resolution was not carried on the report of the privileged committee of the lok sabha. His expulsions was not based on any of the grounds of disqualification specifically mentioned in Article 102 of the constitution and section 8 of the representation of the people's act 1951. The supreme court served a notice to the lok sabha speaker on January 16, 2006. The court also referred the matter to a constitutional bench of five judges.
The lok sabha speaker, Somnath Chatterjee called an all-party meeting on January 20, 2006. It was unanimously decided in the meeting that it was the privilege of the house to take disciplinary action against its own member. The expulsion from the house was very much within that disciplinary action. It was further held that the speaker of the lok sabha was the sole custodian of the rights and privileges of the house and, hence, not answerable to the judiciary for his role in that capacity. The BJP in the meeting favored that the speaker should not appear personally before the court but should send his representative to present his views before the highest court.
Chatterjee later on briefed the media, 'Even if I go there, that can not lead to the honourable court to assume or to exercise the power in respect of those matters exclusively conferred on parliament.' He also clarified that 'the constitution was clear on the jurisdictions of the pillars of democracy' and suggested, 'Let us keep within our lakshman rekha.'
The supreme court seems in a mood to interpret the powers, privileges and immunities of parliament that remain un-codified so far. On the other hand, parliament insists that it being the sole custodian of its rights and privileges; it is within its custodian rights to define its privileges and immunities.
The whole episode has certainly triggered a new kind of situation that has serious implications of which two are legal-constitutional.
First pertains to immunities to the legislature from judicial intervention in its proceedings. Second relates to defining powers and privileges of the legislature and its members. Is parliament the sole interpreter of its powers and privileges? Or, is this power of parliament subject to judicial scrutiny?
Articles 105 and 122 of the Indian constitution clearly restrict the judiciary from intervention in the business of the legislature. Article 122 (1) states, 'The validity of any proceedings in parliament shall not be called in question on the ground of any alleged irregularity of procedure.' Article 122 (2) explains, '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.'
Article 105 (2) gives judicial immunities to the conduct and behaviour of any member of parliament: '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 therefore, 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.' Article 194 (2) grants the same immunities to the members of the state legislative assemblies.
The second issue pertains to the powers and privileges of the legislature and its members. Article 105 explains the powers and privileges of parliament and its members; and article 194 replicates the same provision for the legislative assembly and its members. Article 105 (1) gives freedom of speech in parliament and article 105 (2) gives immunity to freedom of speech and freedom to vote in the house and its committee from judicial proceedings. But other rights and privileges of the house and its members are left un-codified. Article 105 (3) reads 'In other respects, the powers, privileges and immunities 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.' Before this amendment, it was provided that powers, privileges, and immunities of parliament and its member shall be those of the house of commons as it was before the commencement of the Indian constitution.
The root of the present controversy lies in the above two issues and related provisions of the constitution. The BSP MP has challenged in the supreme court the power of the house to terminate his membership on the grounds other than that provided in article 102 and section 8 of the representation of the people's act 1951. The lok sabha insists that its disciplinary jurisdiction over its member has constitutional immunities from judicial intervention as explained in the articles 105 (2) and 122 of the Indian constitution.
Judicial precedents on the issue of parliamentary privileges and judicial immunities to proceedings of the legislature suggest divided opinion.
In PV Narasimha Rao v. State (1998) the supreme court took the position as per Article 105 (2): 'The bribe-taker MPs who have voted in Parliament against the no-confidence motion are entitled to protection of Article 105(2) and are not answerable in a Court of Law for alleged conspiracy and agreement.' However, 'The bribe-takers could be proceeded against by Parliament itself.' This judgement clearly established that parliament is the sole arbitrator of its business and proceedings and the judiciary cannot come in this matter. This judgement has not been superseded by another judgement reversing the position.
The judicial interpretation of powers and privileges of the legislature and its member has not been consistent. In a special reference no. (1) 1964, the supreme court observed that the legislature in India unlike the house of commons does not enjoy the power to regulate its own constitution. Hence, the Indian legislature (Article 105 [3] and Article 194 [3]) does not have the same powers and privileges as enjoyed by the house of commons.
On the basis of the above judgement, the Punjab and Haryana high court in a judgement (1977) decided that article 194 (3) does not give the legislative assembly the power to expel its member. The court observed that the power of the house of commons to expel its member arises from its privilege to regulate its own constitution. Since, it is not available to Indian legislature; the latter is not privileged to
expel its member. The Madras and Madhya Pradesh high courts took the opposite position and argued that the Indian legislature was empowered to expel its member as a part of its disciplinary jurisdiction.
Parliamentary precedents in India indicate that the legislature has exercised the power to expel its members time and again. On September 25, 1951, the lok sabha expelled its member GP Mudgal from the house for raising a question after being paid for the service rendered. On November 24, 1977, Indira Gandhi was expelled from the lok sabha for obstructing, intimidating and falsely implicating certain officials who were collecting information for answering in the previous lok sabha. Her membership was restored on December 19, 1978 by a resolution of the house that rescinded its earlier motion expelling her from the house. The rajya sabha expelled Subramaniam Swamy from the house on November 15, 1975. There are also examples of expulsion from the state legislative assemblies in Maharashtra, Haryana, Madhya Pradesh and Tamil Nadu.
Even the procedural issue raised by Raja Ram Pal has parliamentary precedents. HG Mudgal was expelled from the lok sabha in 1951 on the report of the special committee of the house. When certain members raised the question of procedure, the then lok sabha Speaker Malvankar clarified: 'Even though there is a committee of Privilege constituted under the rules, yet it is within the power of the House to constitute other special committees if there are any special circumstances and inquiries to be made…Moreover, it is a moot question to consider whether any such conduct as alleged is really in a sense a breach of privilege of the House or something different. A member may behave in a manner in which the House would not like him to behave yet it may be argued that it is not a breach of privilege.' Quoting British precedent on which the privileges of the lok sabha MPs are based, he illustrated: 'In all such circumstances, the practice in the House of Commons has been to constitute a special committee and the procedure of making a motion is procedure that is usually adopted in the House of Commons even though there is a Committee of Privileges.' The house of commons had expelled members through the special committee.
To reiterate, the Indian Constitution (Article 105 [2] and Article 122) is clear that the proceedings in parliament are not subject to judicial scrutiny. The supreme court in PV Narasimha Rao v. State had endorsed the constitutional position.
Parliamentary precedents on the issue of expulsion are established. Indian parliament had already expelled a member in 1951 through special committee. The house of commons had set the precedent of expulsion through special committee. Since privileges of the Indian parliament and its members (Article 105 [3]), until so defined, are those of the house of commons; it is very much the privilege of parliament to expel its member.
However, it would be better if parliament sits to codify the powers, privileges and immunities of the legislature and its members. The constitution review committee headed by the former chief justice of India, MN Venkatachaliah, has recommended codification of powers, privileges and immunities of each house of parliament and its member. The supreme court may play a constructive role in this task.
The author is lecturer, political science
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The Indian constitution is clear that the proceedings in parliament are not subject to judicial scrutiny. It clearly lays down immunities, powers and privileges of members of legislature. The supreme court had endorsed the constitutional position. Parliamentary precedents exist on expulsion Ashok Kumar Pankaj Rohtak Parliament and the supreme court of India are poised for a confrontation over the issue of expulsion of 11 members of parliament (MPs) involved in cash-for-question scam. The legal-constitutional question pertains to the exclusive jurisdiction of parliament over its authority to define its privileges and manner to protect and maintain it. The phenomenon of the legislature versus the judiciary is not new to Indian democracy. Indira Gandhi made a series of attempts through 24th, 25th and 42nd constitutional amendments to establish supremacy of parliament over the judiciary. She even tried to demoralise the highest judiciary by appointing a junior judge as the chief justice superseding senior judges. The matter could be settled with the enunciation of the 'basic feature doctrine' in the Keshavananda Bharati case of 1973. The kernel of this judgement is that the Indian constitution has certain basic features, which hold a transcendental position and which cannot be altered by either parliament or supreme court. This judgement was able to establish supremacy of the constitution but only with respect to its 'basic features'. The other vibrant and dynamic democracies of the world have also gone through the process of confrontation between the legislature and the judiciary. However, they have settled it in the process of constitutional development. Britain, a classic case of a parliamentary system, easily established legislative supremacy. Parliament is not only supreme vis-à-vis other organs of government but it is supreme vis-à-vis constitution as well. In the British model, the legislative supremacy is also established by the fact that the constitution is unwri-tten and the one chamber of the legislature—house of lords—acts as the highest judiciary of the land. The federal constitution of the United States is organised on the principle of supremacy of the constitution. Its supreme court, therefore, enjoys absolute and extensive power of judicial review. No law of the land is beyond judicial scrutiny. But the case of Indian constitution is typical because of the adoption of parliamentary and federal features simultaneously. Parliamentary form of government hints at legislative supremacy. But the federal nature of the constitution makes it imperative that the highest judiciary is able to exercise the power of judicial review. The roots of the present problem also lie in the design of the Indian constitution. On December 12, 2005, eleven MPs, ten from the lok sabha and one from the rajya sabha belonging to mainstream political parties (six from the Bharatiya Janata Party (BJP), three from the Bahujan Samaj Party(BSP), and one each from the Congress and the Rashtriya Janata Dal) were shown in a sting operation on a private TV channel (Aaj Tak) being paid for raising a question in parliament. Parliament responded quickly by expelling all the eleven MPs who figured in the sting operation. The lok sabha constituted a special (enquiry) committee and the rajya sabha referred the matter to the ethics committee of the house. On the report of the special committee of the lok sabha and ethics committee of the rajya sabha, both the houses expelled the tainted members and terminated their membership by a motion of each house. The motion was passed on the last day of the winter session, December 23, 2005, amidst a walkout by the BJP, the main opposition party in the lok sabha. The BJP already in trouble because of leadership crisis, factional fighting, ideological vacillation, and its vitiating relations with the Rashtriya Swayamsevak Sangh was deeply disturbed. Six out of eleven MPs belonged to the BJP and two of them were ministers in the erstwhile BJP-led national democratic government at the centre. One expelled member from the BSP, Raja Ram Pal challenged the decision of the lok sabha speaker in the supreme court on two grounds: procedural and legal. His expulsion resolution was not carried on the report of the privileged committee of the lok sabha. His expulsions was not based on any of the grounds of disqualification specifically mentioned in Article 102 of the constitution and section 8 of the representation of the people's act 1951. The supreme court served a notice to the lok sabha speaker on January 16, 2006. The court also referred the matter to a constitutional bench of five judges. The lok sabha speaker, Somnath Chatterjee called an all-party meeting on January 20, 2006. It was unanimously decided in the meeting that it was the privilege of the house to take disciplinary action against its own member. The expulsion from the house was very much within that disciplinary action. It was further held that the speaker of the lok sabha was the sole custodian of the rights and privileges of the house and, hence, not answerable to the judiciary for his role in that capacity. The BJP in the meeting favored that the speaker should not appear personally before the court but should send his representative to present his views before the highest court. Chatterjee later on briefed the media, 'Even if I go there, that can not lead to the honourable court to assume or to exercise the power in respect of those matters exclusively conferred on parliament.' He also clarified that 'the constitution was clear on the jurisdictions of the pillars of democracy' and suggested, 'Let us keep within our lakshman rekha.' The supreme court seems in a mood to interpret the powers, privileges and immunities of parliament that remain un-codified so far. On the other hand, parliament insists that it being the sole custodian of its rights and privileges; it is within its custodian rights to define its privileges and immunities. The whole episode has certainly triggered a new kind of situation that has serious implications of which two are legal-constitutional. First pertains to immunities to the legislature from judicial intervention in its proceedings. Second relates to defining powers and privileges of the legislature and its members. Is parliament the sole interpreter of its powers and privileges? Or, is this power of parliament subject to judicial scrutiny? Articles 105 and 122 of the Indian constitution clearly restrict the judiciary from intervention in the business of the legislature. Article 122 (1) states, 'The validity of any proceedings in parliament shall not be called in question on the ground of any alleged irregularity of procedure.' Article 122 (2) explains, '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.' Article 105 (2) gives judicial immunities to the conduct and behaviour of any member of parliament: '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 therefore, 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.' Article 194 (2) grants the same immunities to the members of the state legislative assemblies. The second issue pertains to the powers and privileges of the legislature and its members. Article 105 explains the powers and privileges of parliament and its members; and article 194 replicates the same provision for the legislative assembly and its members. Article 105 (1) gives freedom of speech in parliament and article 105 (2) gives immunity to freedom of speech and freedom to vote in the house and its committee from judicial proceedings. But other rights and privileges of the house and its members are left un-codified. Article 105 (3) reads 'In other respects, the powers, privileges and immunities 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.' Before this amendment, it was provided that powers, privileges, and immunities of parliament and its member shall be those of the house of commons as it was before the commencement of the Indian constitution. The root of the present controversy lies in the above two issues and related provisions of the constitution. The BSP MP has challenged in the supreme court the power of the house to terminate his membership on the grounds other than that provided in article 102 and section 8 of the representation of the people's act 1951. The lok sabha insists that its disciplinary jurisdiction over its member has constitutional immunities from judicial intervention as explained in the articles 105 (2) and 122 of the Indian constitution. Judicial precedents on the issue of parliamentary privileges and judicial immunities to proceedings of the legislature suggest divided opinion. In PV Narasimha Rao v. State (1998) the supreme court took the position as per Article 105 (2): 'The bribe-taker MPs who have voted in Parliament against the no-confidence motion are entitled to protection of Article 105(2) and are not answerable in a Court of Law for alleged conspiracy and agreement.' However, 'The bribe-takers could be proceeded against by Parliament itself.' This judgement clearly established that parliament is the sole arbitrator of its business and proceedings and the judiciary cannot come in this matter. This judgement has not been superseded by another judgement reversing the position. The judicial interpretation of powers and privileges of the legislature and its member has not been consistent. In a special reference no. (1) 1964, the supreme court observed that the legislature in India unlike the house of commons does not enjoy the power to regulate its own constitution. Hence, the Indian legislature (Article 105 [3] and Article 194 [3]) does not have the same powers and privileges as enjoyed by the house of commons. On the basis of the above judgement, the Punjab and Haryana high court in a judgement (1977) decided that article 194 (3) does not give the legislative assembly the power to expel its member. The court observed that the power of the house of commons to expel its member arises from its privilege to regulate its own constitution. Since, it is not available to Indian legislature; the latter is not privileged to expel its member. The Madras and Madhya Pradesh high courts took the opposite position and argued that the Indian legislature was empowered to expel its member as a part of its disciplinary jurisdiction. Parliamentary precedents in India indicate that the legislature has exercised the power to expel its members time and again. On September 25, 1951, the lok sabha expelled its member GP Mudgal from the house for raising a question after being paid for the service rendered. On November 24, 1977, Indira Gandhi was expelled from the lok sabha for obstructing, intimidating and falsely implicating certain officials who were collecting information for answering in the previous lok sabha. Her membership was restored on December 19, 1978 by a resolution of the house that rescinded its earlier motion expelling her from the house. The rajya sabha expelled Subramaniam Swamy from the house on November 15, 1975. There are also examples of expulsion from the state legislative assemblies in Maharashtra, Haryana, Madhya Pradesh and Tamil Nadu. Even the procedural issue raised by Raja Ram Pal has parliamentary precedents. HG Mudgal was expelled from the lok sabha in 1951 on the report of the special committee of the house. When certain members raised the question of procedure, the then lok sabha Speaker Malvankar clarified: 'Even though there is a committee of Privilege constituted under the rules, yet it is within the power of the House to constitute other special committees if there are any special circumstances and inquiries to be made…Moreover, it is a moot question to consider whether any such conduct as alleged is really in a sense a breach of privilege of the House or something different. A member may behave in a manner in which the House would not like him to behave yet it may be argued that it is not a breach of privilege.' Quoting British precedent on which the privileges of the lok sabha MPs are based, he illustrated: 'In all such circumstances, the practice in the House of Commons has been to constitute a special committee and the procedure of making a motion is procedure that is usually adopted in the House of Commons even though there is a Committee of Privileges.' The house of commons had expelled members through the special committee. To reiterate, the Indian Constitution (Article 105 [2] and Article 122) is clear that the proceedings in parliament are not subject to judicial scrutiny. The supreme court in PV Narasimha Rao v. State had endorsed the constitutional position. Parliamentary precedents on the issue of expulsion are established. Indian parliament had already expelled a member in 1951 through special committee. The house of commons had set the precedent of expulsion through special committee. Since privileges of the Indian parliament and its members (Article 105 [3]), until so defined, are those of the house of commons; it is very much the privilege of parliament to expel its member. However, it would be better if parliament sits to codify the powers, privileges and immunities of the legislature and its members. The constitution review committee headed by the former chief justice of India, MN Venkatachaliah, has recommended codification of powers, privileges and immunities of each house of parliament and its member. The supreme court may play a constructive role in this task. The author is lecturer, political science