RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA & ORS.

JANUARY 10, 2007

Constitution of India, 1950:

Articles JOI, 102, 105 and 122/Representation of the People Act, C 1951-Sections 7 and JOA:

Procedure adopted by the two Houses of Parliament-Does not suffer from any illegality, irrationality, unconstitutionality, violation ofprinciples of natural justice or perversity-Hence not violative of Articles 14, 20 or F 21.

Lok Sabha Speaker's announcement that the guilty will not be spared-Whether mala fide and motivated-Held, no, since the Speaker was only giving vent to his feeling on the subject-The fact that the Speaker had thereafter constituted an Inquiry Committee with Members G also from the opposition would go to show that the resolve at that stage was to find the truth.

Articles 19(J)(g) and 21-Vis-a-vis-Article 105(3)-Discussed H 317

318 SUPREME COURT REPORTS [20011 1 s.c;.R.

A Powers, privileges and immunities ofMembers ofParliament-Position in countries like USA, UK., Canada, Australia-Discussed.

Words & Phrases:

'Vacw1cy', 'disqualification', 'expulsion', 'power', 'privilege', B 'immunity'-Meaning of

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 C 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 sco'pe of such judicial review.

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

The Presiding officers of each House of Parliament instituted inquiries through separate Committees. E 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 Committ~e that the conduct of the members F 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.

Similarly the Report of the Ethics Committee was adopted by Rajya G 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.

H In the Writ Petitionsffransfer Cases, the expelled MPs have challenged

.. RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 319 the constitutional validity of their respective expulsions. A On behalf of the petitioners, it was inter alia contended that 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; unlike in B 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; 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; 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 ~e ascertainable and, therefore, subject to scrutiny by the Court, like any other right; 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; 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 ~he subject as available in Article 105(3) of the Constitution; the expulsions are illegal, arbitrary and unconstitutional, being violative of the provisions of Articles 83, 84 and 101 F to 103, 105 and 190 to 193 of the Constitution; there is no provision either in the Constitution of India or in the Ru!es 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; the expulsion of the petitioners from the Legislature through a motion adopted by simple majority was a dangerous precedent G which would give dictatorial powers to the ruling IDajority in the Legislatures -., in future and thus be prone to further abuse; 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. H

320 SUPREME COURT REPORTS [2007] I S.C.R.

A The following questions were formulated by the Court: .,

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?

B 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? + -

C 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?

1. In view of the clear enunciation of law by Constitutional Benches E 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 F 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. G [Para 62) [386-G-H, 387-A-B]

Kesavananda Bharati v. State of Kera/a, [1973) 4 SCC 225; 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 H Accountability v. Union of India, [1991] 4 SCC 699; I. Manila! Singh v.

\'I RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 321

H. Borobabu Singh (Dr), (1994] Supp (1) SCC 718; Union of India v. A Assn. for Democratic Reforms, [2002] 5 SCC 294; Special Reference No. I 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; Ku/dip Nayar v. Union of India, (2006] 7 SCC 1; Special Reference No. I of 1964, (1965] 1 SCR B 413 (UP Assembly case); MS.M Sharma v. Sri Krishna Sinha, [1959] Supp (1) SCR 806; MS.M Sharma v. Shree Krishna Sinha, [1961] 1 SCR 96 and State of Karnataka v. Union of India, [1977] 4 SCC 608, relied on.

Bradlaugh v. Gosset, [1884] 12 QBD 271 and Richard William c Prebble v. Television New Zealand Ltd, (1994) (S) WLR 970, referred to.

"Rules of Procedure and Conduct of Business in Lok Sabha"; "Rules of Procedure and Conduct of Business in ·the Council of States" and "May's Parliamentary Practice" by Sir Thomas Erskine May, referred to. D

2. 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 , ' _' ~ t ~ in matters of contempt. But then, its position as a Court of Record does not E 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. [Para 82] [393-H, G 394-A-B] F Sir Thomas Erskine May: "May's Parliamentary Practice" and Rutledge: "Procedure of the House of Commons" [Volume I, page 46],

- referred to.

3.1. The medieval concept of Parliament in England primarily as a G 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. (Para 83] {394-Dl

3.2. In matters concerning import of powers and privileges of the H

p. 322 Copy page pinpoint

A 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. [Para 861 [395-D-E]

B 3.3= 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. (Para 87] (396-B] c Special Reference No. 1 of 1964, (1965) 1 SCR 413 (UP Assembly case), relied on.

Ashby v. White L.J. (1701-05), 714, referred to.

4. 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". (Para 122] [413-D-E] E Prititosh Roy: "Parliamentary Privilege in India" (1991), Chapter-4, titled 'Historical Background of Parliamentary Privilege in India (1915- 1950)' p. 53 and Constituent Assembly Debates Volume 8 of 19.5.1949, page 143-149, 578-584, referred to. F

5. 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 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 G 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 H Parliament of India to set up the proper machinery for formulating

RAJA RAM PAL v. THE HON'BLE SPEAK ER, LOK SABHA 323 privileges, which could be enlarged or curtailed. The adoption of the powers A and privileges of the House of Commons was only as a temporary measure, following the practice that had been followed in Australia, Canada and in other Dominions with advantage to secure complete freedom of speech and also the omnipotence of the legislature in every respect. !Para 123) 1413-F-H, 414-A-Bl B

6. 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- C amendment. Use of a particular power in 1947 would rather make it closer in terms of time to the crucial date of commencement oflndian Constitution. Its disuse in later period is of no consequence. !Para 125) (414-F-G)

7. 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. [Para 135] (417-G-H)

8. 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 F -\ survived the test of time. Some were given up. Some others faded out by desuetude. [Para 136) [418-A)

9. 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 G Parliamentary Practice, 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 imd have a favourable construction H

324 SUPREME COURT REPORTS [2007] I S.C.R.

A placed on his words was justly regarded by the Coinmons 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 parliamenl; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in B cases of doubt. [Para 137) [418-E-G]

Special Reference No. I of 1964, (1965) 1 SCR 413 (UP Assembly case), relied on.

C Sir Thomas Erskine May : "May's Parliamentary Practice" 16th Edn. pp. 86, 175, referred to.

10.1. 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. [Paras 142 & 143] (420-B-D] F 10.2. 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, 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. It cannot be said the submission that the provisions in Articles 101 or 102 restrict in any way the scope of Article 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

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 325 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. There is no inconsistency between the two. Nor is there any reason to support the claim that provisions under Articles 101 and 102 are exh.austive and for that reason, Article 105(3) be read as not to include the power of expulsion. B 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, ifthere 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. [Para 144] [420-E-H, 421-A]

10.3. It is not possible 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. [Para 146) [421-E]

10.4. Disqualification and expulsion are two different concepts altogether, and recognizing the Parliament's power to expel under E Article 105(3) does by no means amount to adding a new ground for disqualification. [Para 147) [421-GJ

10.5. 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. F 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, the power of expulsion is not negated by any of the above constitutional or statutory provisions. [Para 148 & 149] [422-B-C]

Yashwant Rao Meghawale v. Madhya Pradesh Legislative Assembly, G AIR (1967) MP 95; Hardwari Lal ILR (1977) 2 P&H 269 (FB); K. Anbazhagan v. TN Legislative Assembly, AIR (1988) Mad. 275 and Shrikant v. Vasantrao, [2006] 2 SCC 682, referred to.

Armstrong v. Budd, (1969) 71 SR 386 (NSW), referred to. H

326 SUPREME COURT REPORTS· [2007] 1 S.C.R.

A 11.1. 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. I Para 15411423-Fl

11.2. As ~ar as the provision for the duration of the House is B concerned, 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 c dissolution, when the member stands disqualified or the seat is rendered vacant. 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 D by the Constitution. Expulsion is onl)'. an additional cause for the shortening of a term of a member. [Para 156] [424-A-C] 1' ~

11.3. Further, as far as the provision relating to the salary of the member is concerned, it is quite absurd to claim that because the E 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. Salades 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 F at no point controlled by the fact that salaries are required to be paid to a member. (Para 157] [424-D-E) +-

11.4. Thus, the 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. iPara 158) (424-F) G 11.5. 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 p" represented. For example, a citizen cannot claim the right to vote and be H represented by a person who is disqualified by law or the right to be

\ RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 327 represented by a candidate he votes for, even if he fails to win the election. A -~ 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. B

- The power of expulsion is not contrary to a democratic process. It is rather part of the guarantee ofa 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, the power of c expulsion does not violate the right of the constituency or any other democratic principles. [Paras 161 and 162} [425-B-FJ

11.6. Article 105(3) is itself a constitutional provision and it is necessary to construe the provisions in such a way that a conflict with other provisions is avoided. Where there is a specific constitutional provision as may have the effect of curtailing these fandamenta/ 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), there is 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 F ~~ 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, Article 19(1)(g) cannot prevent the reading of power of expulsion under Article 105(3). [Para 165) [426-B-E) G

11.7. As far as Article 21 is concerned, it was submitted that the 'procedure established by law' includes the rules relating to the Privileges 1--\ Committee, etc., which were not followed and thus the right was violated. " · This does not prevent the reading of the power to expel in Article 105(3). H

328 SUPREME COURT REPORTS (2007) 1 S.C.R

A 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. (Para 166] (426-F-H]

11.8. The power of expulsion does not come into conflict with any of the constitutional provisions and thus cannot be negated on this basis. (Para 167) (427-A]

D K. Anbazhagan v. TN Legislative Assembly, AIR (1988) Mad. 275 and K. Anandan Nambiar v. Chief Secretary, State of Madras, AIR (1966) SC 657, referred to.

12.1. Neither Parliament nor State Legislatures in India can assert E 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). Wara 188] (431-G-H] F 12.2. Though Maitland also discusses expulsion along with the other constituent elements of the House's Privilege of determining its own composition, it is difficult 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 G privilege to control its own composition. [Para 217] (441-B-C]

12.3. 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 + H on account of conviction for misdeamonour refers to disciplinary control

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 329 and therefore part of penal jurisdiction which undoubtedly is distinct from the power of the House to provide for its own constitution. [Para 220) (442-C]

12.4. The petitioners seek to point out that expulsion ofa member is not included in the penal powers of the House of Commons. 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. [Para 222) [442-F-G)

12.5. It is clear that E.W. Ridges, though referring to the power of expulsion under the heading "The Right to Provide for its Due Composition", c 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. It is difficult to subscribe to the inference that the power of expulsion according to Ridges is traceable only to the privilege of self composition. [Para 224) [442-D-E]

12.6. It cannot be said 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 F 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 G 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 H

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A 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 Editbn) 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 inflicte~ on a non-member. [Paras 233, 234 & 235] [447-C-H, 448-A-B]

12. 7. Expulsion being regarded as "justly as an example of the privilege of the House of Commons to regulate its own Constitution" by D May does not mean tilat the power to expel is sclely 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 Ho!lse has a right as part of its privilege to have complete control over E its proceedings including the right to punish a member by expulsion who by his conduct interferes with the proper conduct of Parliament business. [Para 236] [447-C-DJ

Anson: 'The Law and Custom of the Constitution' [Fifth edition F (1922), Volume I, Chapter IV); Para 1019 ofHalsbury's Law of England; Professor F.W. Maitland: The "Constitutional History of England" (first edition 1908, reprinted 1941); Profess0t:s Wade and Phillips: "Constitutional Law" (Seventh edition); Professors .Keir and Lawson: "Cases in Constitutional Law" (fifth edition) and E.W. Ridges: "Constitutional Law" (Eighth edition, p; 65), referred to. G 13.1. 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 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

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 331 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 fandamental 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. 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. [Paras 266 & 267) [459-H 460-A-D)

13.2. The ratio of case of UP Assembly, which was decided under significantly different circumstances, cannot be interpreted to have held D 'y 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. [Para 268) (461-A-B)

13.3. This Court is unable to accept the contention that the power to punish for contempt is denied to the Indian legislatures as they are not E Courts of Record. However, it is emphasized 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 "'--4,. a power is unavailable under our constitution. What this Court presently examining in the cases at hand is another aspect of this broad contempt power - the power to expel a sitting member. While the power to punish for contempt in its totality has not been struck down by decision in UP Assembly, this Court does 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. This Court would restrict 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. [Para 272) [463-B-E) H

332 SUPREME COURT REPORTS [2007] 1 S.C.R.

A 13.4. 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). As already held this power is not inconsistent with other provisions of the Constitution. [Paras 273 & 274) [463-F-H, 464-A-B]

Special Reference No. 1 of 1964, [1965) 1 SCR 413 (UP Assembly case; MS.M Sharma v. Sri Krishna Sinha, [1959] Supp 1 SCR 806; E MS.M Sharma v. Shree Krishna Sinha, [1961) 1 SCR 96; Yeshwant Rao v. MP Legislative Assembly AIR (1967) MP 95; Hardwari Lal v. Election Commission of India Etc. ILR (1977) P&H 269; K. Anbazhagan v. Tamil Nadu Legislative Assembly, AIR (1988) Mad 275 and State of Karnataka v. Union of India, [1977) 4 SCC 608, referred to. F Dill v. Murphy, 1864 (15) ER 784; Fielding v. Thomas, [1896) AC 600; Kei/ley v. Carson, [1842) 4 Moo. PC 63; Fenton v. Hampton (1858) 11 MOO PCC 347; Doyle v. Falconer, [1865-67) LR 1 PC 328; Barton v. Taylor, {1886) 11 App Cases 197 and Marshallv. Gordon, 243 U.S. 521, 541 [1917), referred to. G

14. 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 H members and the connection between the conduct of the members and the

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 333 perception of the House is strong. It is, therefore, concluded that even if the A 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. There is no 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. [Paras 290 and 291] [469-H, 470-A-B] B ,. Hartnett v. Crick, [1908] AC 470, referred to.

15. In view of the interpretation of Article 105(3) of the Constitution, it is not essential to determine the question whether 'necessity' as an C independent source of power, apart from the power of the House to punish for contempt, by expulsion of a member, is available or not. [Para 293] [470-E]

16. The approach adopted in Australia is entirely for the Parliament to consider and examine, if so advised. In so far as this Court is concerned, D __. since India does not have a law that codifies the privileges of the Parliament, , nothing turns on the basis of the Australian legislation. r [Para 297) [472-A]

Odger's "Australian Senate Practice", referred to. E

17. 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 F 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 members in the Parliament. These views deserve to be respected but on the question whether there exists power of expulsion is G 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. [Paras 313 & 314) (481-C-E]

Hardwari Lal, ILR (1977) 2 P&H 269, referred to. H

334 SUPREME COURT REPORTS [2007] I S.C.R.

A Subhash C. Kashyap: 'Parliamentary Procedure' (Vol. 2, p.1657) and 'Practice and Procedure of Parliament' by Kaul and Shakder (5th Edn.) page 262, referred to.

18. The observation of this court in the case of UP Assembly, paraphrasing the position of law and practice in England on the authority B 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 oflndia. (Para 330) [486-E-F) c MS.M Sharma v. Sri Krishna Sinha, (1959) Supp (1) SCR 806; Indira Nehru Gandhiv. Raj Narain, [1975) Supp SCC 1 and P. V. Narasimha Rao v. State, (CBl/SPE) [1998) 4 SCC 626, referred to.

Earl of Shaftesbury (86 E.R. 792); Ashby v. White, [1703-04] 92 E.R. D 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, referred to. E

19. 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 F 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. [Para 349] [495-C-F] G Special Reference No. I of 1964, [1965] 1 SCR 413 (UP Assembly case) and MS.M. Sharma v. Sri Krishna Sinha, (1959) Supp 1 SCR 806, referred to.

H New Brunswick Broadcasting Corporation v. Nova Scotia Speaker,

.. RAJA RAM PAL v. THE HON~BLE SPEAKER, LOK SABHA 335

[1993) 1 SCR 391; Harvey v. New Brunswick, [1996) 2 SCR 876 and A House of Commons v. Vaid, (2005) 1 SCR 667, referred to.

20. In the light of law laid down in the two cases of Pandit Sharma and in the case of UP Assembly, it is held that the broad contention on behalf of the Union oflndia that the exercise of Parliamentary privileges cannot be decided against the touchstone offundamental rights or the constitutional B ·> 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. c 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. [Para 350) (495-F-H]

. . Special Reference No. I of 1964, )1965) 1 SCR 413 (UP Assembly case); MS.M Sharma v. Sri Krishna Sinha, [1959) Supp 1 SCR 806 and MS.M Sharma v. Shree Krishna Sinha, (1961) 1 SCR 96, referred to.

21.1. The enforceability of Article 21 in relation to the manner of D exercise of Parliamentary privilege, as affirmed in the cases of Pandit E Sharma and UP Assembly has to be understood ~n light of the expanded scope of the said fundamental right. [Para 352] [4 97-H, 498-A]

21.2. 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 iri case a member's personal liberty was threatened by imprisonment of committal in execution of Parliamentary privilege, Article 21 would be _;. attracted. [Para 353) [498-B]

21.3. Ifit were so, it is difficult 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 H

336 SUPREME COURT REPORTS [2007] 1 S.C.R.

A committal. [Para 354] [498-C]

Special Reference No. I of 1964, [1965] 1 SCR 413 (UP Assembly case); MS.M Sharma v. Sri Krishna Sinha, [1959] Supp 1 SCR 806; MS.M Sharma v. Shree Krishna Sinha, [1961] 1 SCR 96; A.K. Gopalan v. State of Madras, [19501 SCR 88; Rustom Cavasjee Cooper v. Union of B India, [1970] 1 SCC 248 and Ashok Kumar Gupta v. State of U.P., {1997) 5 sec 201, referred to.

22. Notwithstanding the existence of finality clauses, this court exercised its jurisdiction of judicial review whenever and wherever breach C offundamental rights was alleged. President oflndia while determining the question of age of a Judge of a High Court under Article 217 (3), or the President oflndia (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 D 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, it is not possible 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. [Para 374) [510-B-D)

Sub-Committee on Judicial Accountability v. Union of India, [1991] 4 SCC 699; Union of India v. Jyoti Prakash Mitter, [1971) 1 SCC 396; G Union of India v. Tulsiram Patel, [1985] 3 SCC 398; Kihoto Hollohan v. Zachillhu, [1992] Supp 2 SCC 651 and Express Newspaper (P) Ltd v. Union of India, AIR (1958) SC 578, referred to.

Australian Boot Trade Employees Federation v. Whybrow & Co., (1910) 10 CLR 266, referred to. H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 337

23. The question before the court in the case of Indira Nehru Gandhi A 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. B [Para 381) [513-C]

Tej Kiran Jain v. N. Sanjiva Reddy, (1970) 2 SCC 272 and Indira Nehru Gandhi v. Raj Narain, [1975] Suppl. SCC 1, referred to. c

24. Article 122(1) must be found to contemplate the twin test oflegality 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 D .... 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 E 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. F (Para 384) [514-C-F)

... Smt. S. Ramaswami v. Union of India, (1992) Suppl. 1 SCR 108, referred to.

25. It is always expected, rather it should be a matter of G 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. This Court finds no reason not to accept that the scope H

338 SUPREME COURT REPORTS [2007] 1 S.C.R.

A 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 the scrutiny cannot stop, merely on the privilege being found, especially when breach of other constitutional provisions has been alleged. [Para 387) [515-F-H] B

26. 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 C 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. [Para 389) [516-C-D] D

27. While it is agreed 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 E 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 sa':e the Parliamentary proceedings. [Para 391) (516-G-H, 517-A]

F 28. It is the submission on behalf of the Union of India 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. It is found the argument to be founded on reading of Article 105(2) G 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 H save even the legislative Acts from judicial gaze, which would militate against

1 RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 339 the constitutional provisions. (Paras 392 and 393) (517-B-D] A

- 29. 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 t 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. This issue is not gone into but incident is cited as an illustration. (Para 396] (518-A-C)

30. While rejecting the reliance on certain cases cited in support of the plea of exclusive cognizance vesting in the Legislature, and restriction of judicial review to the extent offinding the privilege, support is found to the case set up by the petilioners 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. [Para 410] (523-A-B) E Special Reference No. I of 1964, [1965] l SCR 413 (UP Assembly case) MS.M. Sharma v. Sri Krishna Sinha, (1959] Supp l SCR 806; M.S.M. Sharma v. Shree Krishna Sinha, (1961] l SCR 96 Bachan Singh v. State of Punjab, (1982) 3 SCC 24; Jatish Chandra Ghosh v. Hari Sadhan Mukherjee, [1961] 3 SCR 486; K. Nagaraj v. State ofA.P., (1985] F l SCC 523 and T. Ven/r.ata Reddy v. State of A.P., (19851 3 SCC 198, referred to.

Harvey v. New Brunswick, [1996) 2 SCR 876, referred to.

31. In tlt'e Rajasthan case while dealing with the issues arising out G 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 fresh mandate from the people, this court observed that: H

340 SUPREME COURT REPORTS [2007] 1 S.C.R.

A "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. ... "

The said resolve is reaffirmed and there is no reason why in the facts and circumstances at hand this court should take a different view so as to B 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. + (Paras 412 & 413] (523-D-E, 524-C] c State of Rajasthan v. Union of India, (1977] 3 SCC 592, referred to.

32. 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 D Houses of Parliament in exercise of enabling powers under Article 118 (1), that mere availability of Rules is never a guarantee that they have been duly followed. [Para 415] (524-F]

33. A controversy similar to the one in the case of S.R Bommai arose before this Court in Rameshwar Prasad. 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. (Para 429] (530-C-D]

Barium Chemicals Ltd. v. Company Law Board, AIR (1967) SC 295; Rohtas Industries Ltd. v. S.D. Agarwal, (1969] l SCC 325; S.R Bommai G v. Union ofIndia, (1994] 3SCC1 and Rameshwar Prasadv. Union ofIndia, [2006] 2 sec 1, referred to.

34. 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 H

) RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 341 august bodies also because allowance is always to be given to the fact that A --- ~~ the legislature is the best Judge in such matters. [Para 4341 [534-B-C) :;>

35.1. Conclusions cannot be drawn so as to attribute motive to the t 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 B 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 nobody would be spared c 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. (Para 435) (534-D-F] ,.,, " 35.2. In these circumstances, one is 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 ~ssentially 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 F .. ~ 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. [Para 436] [534-G-H, 535-A]

36. This Court is 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 G 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 H

342 SUPREME COURT REPORTS [2007] 1 S.C.R.

A around the issue of misconduct attributed to the individual members ·' bringing the House in disrepute. (Para 438] [535-C-E]

37. This Court 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 B 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). [Para 4401 [535-G-H)

C 38. The matters pertaining to the two Members ofRajya 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 ofreference 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. [Paras 442 & 443] [536-D-F]

39. 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. [Para 444] [536-F-G]

40. One 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. The request for supply offull-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 H Committee had offered to the concerned Members of Lok Sabha an opportunity

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 343 to view the relevant video-footage that was available with the Committee and A -...--- point out the discrepancies therein. But the petitioners themselves chose to

• turn down the said offer. [Para 446 & 447) [537-E-G]

Jagjit Singh v. State of Haryana & Ors., [WP (C) No. 287 of 2004 decided by S.C. on 11.12.2006), referred to. B 41.1. 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. [Para 448] [538-A) c 41.2. 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 counsel for Union of India that the proceedings of the respective D

- .,. 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. E Each of them insisted and procured the raw video-footage of the different sting operations and drew conclusions after viewing the same. 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 ofRajya Sabha. Dr. Chhattrapal Singh Lodha had sought F .....~ 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. [Para 449) [538-B-F]

42. The impugned resolutions of Lok Sabha and Raj ya Sabha cannot >~ be questioned before this Court on the plea of proportionality. This Court is not sitting in appeal over the decision of the Legislative chambers with H

344 SUPREME COURT REPORTS (2007] 1 S.C.R.

A 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, this Court not concerned with the consequences for the petitioners on account of these expulsions. [Para 451] [538-H, 539-A-B]

43. In these proceedings, this Court cannot 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. It is found 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. [Para 452] [539-C-D]

44. On perusal of the Inquiry reports, it is found 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 E 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. [Para 453] [539-E]

F C.K. THAKKER, J: (Supplementing) :

1.1. Though all the three expressions, viz. powers, privileges and immunities are invariably used in almost all Constitutions of the world, they are different in their meanings and also in contents. [Para 8] [541-B]

G 1.2. '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. [Para 9) [541-B-C] t- H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABR \ 345

~~ 1.3. 'Privilege' is a special right, advantage or benefit conferred on A 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. (Para 10) (541-D] B 1.4. 'Immunity' is an exemption or freedom from general obligation, duty, burden or penalty. Exemption from appearance before a court oflaw or other authority, freedom from prosecution, protection from punishment, etc. are immunities granted to certain persons or office bearers. [Para 11) [541-E] C 1.5. 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. (Para 17) [543-E) D Powers, Privileges and Immunities of State Legislatures, Article 143, Constitution ofIndia, Re, (1965) 1SCR413: AIR (1965) SC 745, referred to.

Sir Erskin May: Treatise on The Law, Privileges, Proceedings and E Usage of Parliament (23rd Edn.) p. 75; Halsbury's Laws of England, (4th Edn.; Reissue, Vol. 34; p. 553; para 1002) and Parliamentary Privilege, First Report (Lord Nicholas Report), referred to.

2. 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. [Para 32) [548-B-C)

Chapman, Re, 166 US 661 (1891) : 41 L Ed 2nd 1154; Julian Bond v. James Sloppy Floyd, 385 US 116 (1966): 17 L Ed 2nd 235; Powell v.. McCormack, 395 US 486 (1969): 23 L Ed 2nd 491; H Snowden Marshall H

346 SUPREME COURT REPORTS [2007] 1 S.C.R.

Cooley: Treatise on the Constitutional Limitations', (1972 Edn., p. 133); Willoughby: Constitutional Law of the United States (Second Edn.; B p. 256); Pritchett: American Constitution (Third Edn., p. 146); American Jurisprudence (Second Edn., Vol. 77, p. 21) and Enid Campbell: Parliamentary Privilege in Australia dealing with 'Expulsion', referred to. +

3. In Australia, only recently, the power to expel a member from the C House has been taken away by a specific statute. (Para 40] (550-C)

Enid Campbell: Parliamentary Privilege in Australia dealing with 'Expulsion'; Odger: Australian Senate Practice, (11th Edn.; p. 57) and Lumb and Ryan: The Constitution ofthe Commonwealth ofAustralia, 1974 Edn., referred to. D

4. 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 E Constitution. Inspite of the above provision in the Constitution, the right of the House to expel a member has never been challenged. [Paras 42 & 43] (550-G-H, 551-A]

Speaker of the House of-Jissembly v. Canadian Broadcasting Corporation, (1993] 1 SCR 319;:~$tockdale v. Hansard, [1839] 9 Ad & E F 1 : 112 ER 1112 (QB); Kie/fey'~': c;~son, (1842], 4 MOO PC 63 : 13 ER 225; Fred Harvey v. Attorney General for New Brunswick, [1996] 2 SCR 876 and House of Commons v. Satnam Vaid, (2005) 1 SCR 667, referred to.

G Sir John George Bourinot: Parliamentary Procedure and Practice in the Dominion of Canada, (4th Edn., p. 64), referred to.

5.1. 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 H evolution of English Parliamentary institution has thus historical

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 347 -"i development. It is the story of conflict between Crown's absolute prerogatives A 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 B Sir Erskine May as Jundamental 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. [Para 62] [557-C-E]

5.2. Initially, the House simply claimed privilege. They neither made C 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- D Arms with the ceremonial mace to the prison and get the Member release~ on its own authority. [Para 63) [557-E-F]

Ann Lyon : 'Constitutional history of the United Kingdom, [2003) p. 39; Holdsworth: A History ofEnglis_l;z Law, Second Edition, pp. 92-93 and Halsbury's Laws ofEngland, (Fourth Edn.; Reissue: Vol. 34; p. 569; para E 1026, referred to.

6. 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 F 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. [Para 68) [558-H, 559-A]

0. Hood Phillips: 'Constitutional and Administrative Law', 4th Edition; p. 180; Wade and Phillips: 'Constitutional Law', 7th Edition; p.793; Sir G William Anson: "The Law and Custom ofthe Constitution", Fifth Edn; Vol. I; pp. 187-88; Griffith and Ryle: "Parliament, functions, practice and procedures", (1989), at p. 85 and Sir Erskine May: 'Treatise on the Law, Privileges, Proceedings and Usage of Parliament', referred to. H •

348 SUPREME COURT REPORTS [2007] 1 S.C.R.

A 7. 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 B 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 c 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 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 D 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, reliance on Keilley is of no assistance to the petitioners. [Para 109] [569-H, 570-A-D] E Bradlough v. Gossett, [1884] 12 QBD 275; Stockdale v. Hansard, (1839) 9 Ad & E 1 : 112 ER 1112 (QB); Edward Keilley v. William Carson, (1842) : 4 MOO PC 63 : 13 ER 225 and Beaumont v. Barrett, (1836) 1 MOO PC 80, referred to. F

8. 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] 71SR386 (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 G 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, r~ 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 H declaration that the resolution was ultra vires. It was contended by A that

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 349 since his case was not covered by any of the eventualities enumerated in A Section 19, he could not be disqualified. The Court, however, negatived the contention. [Paras 114 & 115) [571-H, 572-A-C)

Broom's Legal Maxims, 10th Edn; p. 314, referred to.

9.1. It is no doubt true that the existing law relating to parliamentary privileges iP India is essentially of English origin. But the concept of parliamentary privileges was not unknown to ancient India. Prititosh Roy c 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, there was a developed parliamentary system. Members were not allowed to disobey directions of D 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. [Para 119) (583-C-E) E 9.2. 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 oflndia 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 F 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. [Paras 121 and 122) l583-G-H, 584-A] G

10. There are certain instances wherein Indian Parliament has exercised the power of expulsion of its members. (Para 126) [587-G]

Kaul and Shakhder: 'Practice and Procedure of Parliament', (5th Edn., p. 262), rl!ferred to. H

350 SUPREME COURT REPORTS [2007] 1 S.C.R

A 11. 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. [Para 165) [602-F-G) B MS.M Sharma v. Shri Sri Krishna Sinha & Ors., [1959) Supp 1 SCR 806 : AIR (1959) SC 395; Re: Powers, Privileges and Immunities of State + Legislatures, Article 143 of the Constitution, (1965] 1 SCR 413 : AIR (1965) SC 745; Raj Narain v. Atmaram Govind & Anr., AIR (1954) All 319; Yeshwant Rao Meghawale v. Madhya Pradesh Legislative Assembly c & Ors., AIR (1967) MP 95; Hardwari Lal v. Election Commission ofIndia, ILR (1977) 2 P & H 269 (FB) and K. Anbazhagan & Ors. v. Secretary, Tamil Nadu Legislative Assembly, Madras & Ors., AIR (1988) Mad 275, referred to. ( I ,

D 12. 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. E [Para 169) [605-C-D]

13.1. Likewise, when draft Article 169 (Present Article 194) came up before the House on June 3, 1949, again, the matter was discussed at length. [Para 170) [605-E]

F 13.2. The Constitution Assembly debates 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'. Therefore, it cannot be said that the Founding Fathers of the Constitution G 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. [Para 173) 607-H, 608-A)

14. We have a written Constitution which confers power of judicial review on this Court and on all High Courts. In exercising power and

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 351 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. [Para 182] [611-E-F]

Ashby v. White, (1704) 14 St Tr 695; Stockdale v. Hansard, [1839] B 9 Ad & E 1 : 112 ER 1112 and Bradlaugh v. Gossett, [1884] 12 QBD 271: 53 LJQB 200, referred to.

Anson: 'The Law and Custom ofthe Constitution', 5th Edn.; Vol. I; pp. 190-99; Halsbury's Laws ofEngland, (4th Edn., Reissue, Vol. 34; pp. 553- 54; paras 1004-05 and Holdsworth: 'A History ofEnglish Law' (Vol. I; pp. C 393-94), referred to.

15. 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 D 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. [Para 184] (612-B-C] E

R. v. Her Majesty's Treasury, ex parte Smedley, 1985 QB 657, 666, referred to.

16. In Searchlight as well as in Keshav Singh, it has been observed F that there is no doubt that Parliament/State Legislature has power to punish for contempt, which has been reiterated in other cases also. 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, G 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 H

352 SUPREME COURT REPORTS [2007) 1 S.C.R.

- r---· A not open to challenge in any court of law. This 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 B 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. [Para 187] [612-G-H, 613-A-D] c MS.M Sharma v. Shri Sri Krishna Sinha & Ors., [1959) Supp 1 SCR 806 : AIR (1959) SC 395; Re: Powers, Privileges and Immunities of State Legislatures, Article 143 of the Constitution, (1965) 1 SCR 413 : AIR (1965) SC 745; State of Karnataka v. Union of India, [1977] 4 SCC 608; P. V. Narasimha Rao v. State, [1998) 4 SCC 626; Sambamurthy v. State D of A.P., [1987] 1 SCC 362 : AIR (1987) SC 663; Kesavananda Bharti v. State of Kera/a, (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 E 124 : [1987) 1 SCR 435 and Kihoto Hollohon v. Zachilhu, [1992) Supp 2 SCC 651 : AIR (1993) SC 412, referred to.

17. It has been held in several cases that an action of Parliament/State Legislature cannot claim 'total immunity' from judicial review. In fact, this F 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 .i while exercising extraordinary jurisdiction under the Constitution, the powers of the courts are absolute, unlimited or unfettered. The Constitution G 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 H judicial review. [Para 188) [613-F-H, 614-A)

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 353

Re: Powers, Privileges and Immunities of State Legislatures, Article A 143 of the Constitution, (1965] 1 SCR 413 : AIR (1965) SC 745, referred to.

18. In the instant cases, the Court is called upon to answer a limited question whether Parliament can expel a member. Even a Colonial Legislature having limited privileges possesses the power to expel a B ... member if his conduct is found to be not befitting a member of Legislature. If it is so, 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. (Para 189] (614-B-C] c

19. Every legislative body-Colonial or Supreme--possesses 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. [Para 191] (614-F-H]

20. Parliament, 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 it cannot be held that the power to expel a member is a carte blanche in nature and Parliament has no authority to expel any member. Parliament can take appropriate action against erring members by imposing appropriate punishments or penalties and expulsion is one of them. 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 H

354 SUPREME COURT REPORTS [2007] 1 S.C.R.

A it is not because Parliament has no power to expel a member but the action was not found to be in consonance with law. [Para 192) [615-C-E]

Ahmedabad St. Xavier's College Society & Anr. v. State of Gujarat & Anr., [1975) 1 SCR 173 : [1974) 1 sec 717 : AIR (1974) SC 1389, referred to. B 21.1. 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 c 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 ifthere 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 Artide 122(1) of the Constitution and this Court cannot interfere with the decision in view of the constitutional protection granted by the said provision. [Para 199) [617-E-H]

21.2. 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 im'pediments. [Para 200) [618-A-B]

Constituent Assembly Debates : Vol.VIII; pp. 199-201), referred to.

H 22. So far as principle of law is concerned, it is well-settled and cannot

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 355 be disputed and is not challenged. However, in the facts of the case, it cannot A 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. (Para 203] (619-B-C] B

Kihoto Hollohon v. Zachilhu, [1992) Supp 2 SCC 651 : AIR (1993) SC 412 and Maneka Gandhi v. Union of India, [1978] 1 SCC 248 : AIR (1978) SC 597, referred to.

23. What was stated by the Hon'ble Speaker was that "if anybody is c 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 is a responsible one, expected of the Hon'ble Speaker D of an august body of the largest democracy. There is 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. [Para 213) [625-H, 626-A-B] E

24. It is well settled that 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. [Para 222] [627-E-FJ F Sir Erskine May: 'Corruption or impropriety' and Hilaire Burnett: 'Constitutional and Administrative Law', Fourth Edn.; pp. 571-72, referred to.

25. It cannot be gainsaid that expulsion of a member is a grave G measure and normally, it should not be taken. Parliament could have taken a lenient view as suggested on behalf of 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 H

356 SUPREME COURT REPORTS [2007] 1 S.C.R.

A 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), there is no reason 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 J.?lace 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 constitudhcy 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. [Paras 225 & 226] (628-E-H, 629-A-C]

26.1. 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 substanti:::te the extreme argument. Even Maitla~d himself has not noted any such instance. On the contrary, he had admitted that normally, the power of expulsion can be exercised for iffegalities or misconduct of a serious nature. (Para 228] [629-F-G) G 26.2. 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 y RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 357 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 objeded only on the ground that it is likely to be misused. [Para 229) [629-H, 630-A-B]

- sec 764, referred to. Providence Bank v. A/phens Billings, 29 US 504 (1830) : 7 Law Ed 939, referred to. c

27. 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. 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 there is no reason to be disappointed for future. [Para 234] [631-G-H, 632-A-B]

RA VEENDRAN J. (Dissenting) :

1.1. 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. [Para 36) [659-H, 660-A]

1.2. 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). [Para 37} [660-B-C] H

358 SUPREME COURT REPORTS [2007] I S.C.R 1 '

A State of Rajasthan v. Union of India, AIR (1977) SC 1361; Kesavananda Bharati v. State of Kera/a, [1973] 4 SCC 225; Sub- Committee on Judicial Accountability v. Union of India, .[1991) 4 SCC 699; Re. the C.P and Berar Sales of Motor Spirit & Lubricants Taxation Act, 1938 -- the Central Provinces case, AIR (1939) FC 1; Atiabari Tea Co. Ltd. v. State ofAssam, AIR (1961) SC 232; M.P V. Sundaramier & Co. B v. State ofAndhra Pradesh AIR (1958) SC 468 and Automobile Transport Ltd. v. State of Rajasthan, AIR (1962) SC 1406, relied on.

Clarke v. Bradlaugh, (1881] 8 QBD 63, referred to. D

2. 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 E 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). [Para 31] [658-C-D]

F 3. The Constitution makes express provisions for election/appointment and removal/cessation of service of the Executive (President and Vice-Pre:>ident), 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 G 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 (Para 32] (658-E-F]

4. In view of the express provisions in the Constitution, as to when a H person gets disqualified to be a member of either House of Parliament (and

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA 359 thereby ceases to be a member) and when a consequential vacancy arises, A 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. (Para 33) (658-G)

5. Clause (3) of Article 105 opens with the words 'in other respects'. B 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 arc clear from c 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 D Clause (1) and (2) of Article 105. 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. [Para 34J [658-H, 659-A-C, E]

Special Reference No.I of 1964, UP Assembly Case, (1965) 1 SCR E 413, relied on.

6. 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 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. [Para 35) [659-F-GJ

P. V. Narasimha Rao v. State, [1998) 4 SCC 626, relied on. H

360 SUPREME COURT REPORTS [2007] 1 S.C.R.

/--- A CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 1 of2006. .--

(Under Article 32 of the Constitution of India)

WITH

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

Gopal Subramanian, ASG, Dayan Krishan, Gautam Narayan, Satyakam, T. S. Murthy, Raghenth Basant, Aman Ahluwalia, Arunav Patnaik, Abhishek Tiwati and D.S. Mahra for Attorney General for India.

C Ram Jethmalani, P.N. Lekhi, T.R. Andhyarujina, Sr. Advs. Dr. Krishan 'i Singh Chauhan, Dr. Indra Pratap Singh, Gyan Mitra, Chand Kiran, P.K. Jayakrishnan, K.C. Lamba, Sudha Pal, V.K. Shukla, Nischal Kumar Neeraj, Ashish Tripathi, K.K. Mohan, Nawal Kishore Jha, M.P. Jha, Harshvardhan Jha, Ram Ekbal Roy, Rani Jetmalani, Harish Pandey, Samar Bansal, Abhik Kumar, P.R. Mala, Raj iv Kumar Ti~ari, Rajesh Kumar, Sanjai Kumar Pathak, D Devvrat, Harish Pandey, Rajeev Kumar Tiwari, Lata Krishnamurti, Sachin Jain, Mukesh Kumar Tripathi, Lokesh Kumar, Sanjay Kumar Pathak, Jaspreet S. Rai, Rakesh Kumar, M.K. Garg, Meenakshi Arora, S.K. Mehndiratta, Pranav Sen, S.W.A. Qadri, Ashis Chugh, Gaurav Agarwal, Satyakam, D.S. Mahra, R.M. Sharma and Sushma Suri for the appearing parties.