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 cases

Vijay Sanghvi

The 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.