Contemptible offence

Constitutional validity of the powers to expel members of the house has never been challenged or established before. Here is an opportunity to clarify who can sit in judgement of constitutional validity in such casesVijay SanghviThe makers of the constitution had perhaps vested faith in succeeding generations of parliamentarians that they would not misuse the constitution to subvert democracy and enact laws and resolutions that had no constitutional sanction. The legal challenge to the expulsion of ten members from the lok sabha, who were caught in a sting operation for accepting cash for questions, demands clarification on certain constitutional matters. The constitution in articles 101, 102, 103, 104 and 105 clearly lays down the procedures that would be followed by the parliament. No court would be able to question proceedings, resolutions, actions or statements by ministers or members during the proceedings and vote thereupon or otherwise even if there were irregularities.Article 122 (1) says: 'The validity of any proceedings in parliament shall not be called in question on ground of any alleged irregularity of procedure.'According to Justice Dr Durga Das Basu: 'Interpretation of the rules (apart from their constitutionality) is left to the determination of the speaker, and ultimately of the house itself. But the immunity from the judicial interference is confined to matters of irregularity of procedure, as distinguished from illegality or unconstitutionality… There would be no immunity if the proceedings are held without jurisdiction, e.g. in defiance of the mandatory provisions of the constitution or by exercising powers which the legislature does not under constitution possess.' (Commentary on the Constitution of India , vol. G, p. 176) Basu quotes the verdict of the supreme court in Sharma v. Shri Krishna in 1960 to support his arguments.Here Basu also mentions that article 122 does not debar the court from investigating into the very capacity of either chamber to function by reason of some alleged lack of power or capacity under the provisions of the constitution from which it derives power.In another case settled by the federal court of India (Umayal v. Lakshmi A.1945 FC.25 {39}), it has been said by the court 'It was not merely a matter of procedure regulating proceedings in either chamber of the legislature. It calls in question the very capacity of the legislature to function. The determination of the question does not depend upon a construction of the rules of business of standing orders of the chambers but upon the interpretation of and the effect given to the provisions of the Constitution act from which the legislature derives its power to legislate.'The challenge to the resolution of expulsion was not during the proceedings in the house but it has come after the resolution was adopted and members were expelled from the house. The petition has challenged the constitutional validity with a claim that the house did not have the power to expel any member apart from on the basis of disqualifications that have been well-defined in the constitution under various provisions. Hence the supreme court has issued notices to the concerned actors involved in the drama of expulsions.Even though there have been cases of expulsions from both the houses in the past, the issue of the constitutional validity and powers of the two houses has never come in for the legal scrutiny by the judiciary as no one has challenged the powers in the past.The first instance of expulsion was in September 24, 1951 when the provisional parliament had expelled GP Mudgal, member from Bombay who was held guilty of accepting pecuniary benefits from the Bombay Bullion House for raising questions in the house and also moving amendments to certain bills where the business house had interest. Even though he had submitted his resignation to the speaker well before the resolution was carried out in the house, his resignation was not accepted and he was ousted from the house.In second instance, Tul Mohan Ram was expelled from the lok sabha in 1974 for his 'unbecoming behaviour and misconduct that damaged the reputation of the house and affected its dignity'. He had submitted signatures of 29 members, forged ones as members later claimed, to promote business interests of a Pondicherry firm. He also did not challenge the power of the house to expel him.In November 1975 Dr Subramaniam Swamy of Jan Sangh was expelled from the rajya sabha for what was called as 'gross misconduct' because he had walked into the house during the emergency period and after waving his hand in the house had vanished to escape from the clutches of the law enforcing agency that possessed a warrant of his arrest and detention under the Maintenance of Internal Security Act (MISA). Because of that warrant, Dr Swamy was unable to challenge his expulsion in the court of law.On Indira Gandhi's case, it suited her to make political capital out of her expulsion from the lok sabha in December 1978 rather than approach supreme court. Not only was she expelled, she was also sentenced to imprisonment till the end of the winter session in 1978. She had dramatised her departure from the lok sabha after the then speaker, KS Hedge, had signed the warrant of her punishment and imprisonment.Though in common parlance breach of privilege and contempt are used as synonymous, there is in fact a distinction between the two terms. Each house of the legislature has certain 'acknowledged privileges' collectively while its members have certain privileges individually. Any violation of such privileges constitutes breach of privilege and is punishable as contempt of the house. But contempt of the house may be committed even otherwise. The breach of privilege is specified but what constitutes contempt is not defined fully but is determinable by the house.The general principle underlying contempt arising out of the misconduct of a member is that he should not do any act or be a party to any act which goes against his dignity as member of parliament and necessarily affects the dignity of parliament itself. Dr Basu has given several instances that would be deemed as contempt. Acceptance of bribe or pecuniary corruption in the execution of his office is on the top of the list. Acceptance of any bribe or any other illegal gratification in consideration of anything to be done by a member in his capacity as a member of parliament is another misdeed that would constitute contempt of the house.The constitution authorises the house, lok sabha, rajya sabha or state legislatures, to punish members for breach of privilege and unbecoming conduct that would lower the dignity of the house and damage its reputation. The punishment has not been specified but it has also not been limited. The legislative houses are empowered to send to jail anyone who had breached its privileges or caused contempt. The constitution does not define how far they can go or how far they should go. It only says that these actions would not be questioned in any court of law.The recent sting operation has firmly established that members accepted cash for raising questions. Hence they had committed contempt of the house. Offence was evident but differences emerged over the punishment and also on the mode of punishment. The leader of the opposition in the lok sabha before leading out his flock from the house in a protest against the resolution for expulsion of ten members had remarked, 'you do not issue a death sentence for the crime of stupidity'. He did not specify what punishment he had in mind as he had also admitted that the members had indulged in gross misconduct. Did he have in mind to allow them to continue to draw salaries, allowances and other perks from the house while debarring them from participation in the proceedings of the house for the remaining term or for a specified period so that they would not indulge in a similar misdemeanour? Would that have enhanced the dignity of the house?The deputy leader of the Bharatiya Janata Party (BJP) suggested that the case should be referred to the privileges committee as that was the proper forum to investigate and not the special committee that was constituted by the speaker. However this issue also was settled in 1951 when the then speaker, GV Mavlankar, had ruled that the special committee formed to investigate into misconduct of Mudgal was proper as the house had the authority to constitute such a committee and the house was empowered to take action against the tainted member.The issues are clear but the interpretations of the provisions are clashing. Speaker Somnath Chatterji has held that the judiciary had no authority to sit in judgment as the lok sabha was sovereign and is fully authorised to take actions. He wanted everyone to know his Lakshman Rekha. The question that remains is who will decide whether the action had constitutional sanction or not? The main function of the supreme court has been to sit in judgment of enactments passed by parliament or actions of parliament as they would affect the public affairs and public life whether or not they had constitutional sanction. Under the federal structure of India, this authority is vested in the supreme court. But the speaker has decided that it cannot be, so he would not accept the notice and returned it with due respect. Will this lead to a clash between two pillars of democracy?