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

according to the previous decision of this Court, the petitioner has A not the fundamental right claimed by him. He is, therefore, out of Court. Secondly, the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the contention raised on behalf of the petitioner. No B Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business. Possibly, a third answer to this part of the contention raised on behalf of the petitioner is that it is yet premature to consider the question of procedure as the Committee c is yet tc conclude its proceedings. It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though ' it may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference by this Court under Article 32 of the Constitution. Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise ofjurisdiction. Mere non- compliance with rules of procedure cannot be a ground for issuing a writ under Article 32 of the Constitution vide Janardan Reddy v. State of Hyderabad, [1951] SCR344." ·~ F

56. By far, the advisory opm1on given by a Constitution Bench comprising of seven Judges of this court in UP Assembly (Supra) case is the most elaborate discourse on the subject of powers, privileges and immunities of the legislatures under the Constitution of India. The matter had arisen out of a Reference by the President of India under Article 143(1) of the Constitution seeking opinfon of this court on certain issues, the genesis of G which was traceable to certain unfortunate developments concerning the legislative assembly of the State of Uttar Pradesh and the Lucknow Bench of the High Court at Allahabad. The legislative assembly of Uttar Pradesh had committed one Keshav Singh, who was not one of its members, to prison for its contempt. The warrant of committal did not contain the facts H

382 SUPREME COURT REPORTS (2007] I S.C.R.

A constituting the alleged contempt. Keshav Singh moved a petition, inter alia, under Article 226 of the Constitution through his advocate challenging his committal as being in breach of his fundamental right. A division bench of the High Court sitting at Lucknow gave notice to the Government counsel and on the appointed day proceeded to hear the application for bail. At that stage, the Government Counsel did not appear. The division bench heard B the application and ordered release of Keshav Singh on interim bail pending decision on his writ petition. The legislative assembly found that Keshav Singh and his advocate in moving the High court and the two Judges of the High Court in entertaining the petition and granting bail had committed contempt of the legislative assembly. The assembly passed a resolution that c all of them, including the two High Court Judges, be produced before it in custody. The High Court Judges and the advocate in question thereupon filed writ petitions before the High Court at Allahabad. A full bench of the High Court admitted the writ petitions and ordered the stay of execution of the assembly's resolution against them. Subsequently, the legislative assembly passed a clarificatory resolution modifying its earlier stand and D asking I the Judges and the advocate to appear before the House and offer their explanation. It was against this backdrop that the President made a Reference under Article I 43( 1) of the Constitution seeking opinion mainly as to the Constitutional relationship between the High Court and the State Legislature in matters of the powers and privileges of the latter. The E contours of the main controversy were siµnmarized by this court at page 439 in the report in the following words:-

"27 ... Is the House the sole and exclusive judge of the issue as to whether its contempt has been committed where the alleged contempt has taken place outside the four walls of the House? Is the House the sole and exclusive judge of the punishment which should be imposed on the party whom it has found to be guilty of its contempt? And, if in enforcement of its decision the House issues a general or unspeaking warrant, is the High Court entitled to entertain a habeas corpus petition challenging the validity of the detention of the person sentenced by the House? ........... "

57. It is clear from the opinion rendered in UP Assembly (Supra) case that the State legislature, though participating in the hearing, expressed ,. . reservations as to the jurisdiction of this court in any manner in respect of the area of controversy covered by the questions, insisting that "the

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.) 383

- question about the existence and extent of the powers, privileges and immunities of the House, as well as the question about the exercise of the powers and privileges were entirely and exclusively within the jurisdiction of the House; and whatever this Court may say will not preclude the House A

from deciding for itself the points referred to us under this Reference", referring in this context, inter alia to the fact that there was no /is before the court which was therefore not exercising "its judicial function" while dealing with a Reference under Article 143 (l).

58. After examining the issue of absolute immunity of the proceedings of the House in such matters from challenge in the court, in the light of various Constitutional provisions and tracing the development of the law on the subject in England with the help, amongst others, of May's Parliamentary Practice, this Court summarized the legal position as obtaining in United Kingdom, at page 467, as under:-

"83. In regard to punishment for contempt, a similar process of give

- D and take by convention has been in operation and gradually a large ' area of agreement has, in practice, been evolved. Theoretically, the House of Commons claims that its admitted right to adjudicate on breaches of privilege implies in theory the right to determine the existence and extent of the privileges themselves. It has never expressly abandoned this claim. On the other hand, the courts E regard the privileges of Parliament as part of the law of the land, of which they are bound to take judicial notice. They consider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction, and to _._......._ decide it according to their own interpretation of the law [May's F Parliamentary Practice, p. 172]. Naturally, as a result of this dualism the decisions of the courts are not accepted as binding by the House in matters of privilege, nor the decisions of the House ~ by the courts; and as May points out, on the theoretical plane, the old dualism remains unresolved. In practice, however, "there is much more agreement on the nature and principles of privilege than G the deadlock on the question of jurisdiction would lead one to expect" and May describes these general conclusio:is in the #.,, following words:

.... (1) It seems to be recognized that, for the purpose of H

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

A adjudicating on questions of privilege, neither House is by itself entitled to claim the supennacy over the ordinary courts of justice which was enjoyed by the undivided High Court of Parliament. The supremacy of Parliament, consisting of the King and the two Houses, is a legislative supremacy which has nothing to do with the privilege B jurisdiction of either House acting singly.

(2) It is admitted by both Houses that, since either House can by itself add to the law, neither House can by its own declaration create a new privilege. This implies that c privilege is objective and its extent ascertainable, and reinforces the doctrine that it is known by the courts.

On the other hand, the courts admit:

(3) That the control of each House over its internal D

(4) proceedings is absolute and cannot be interfered with by the courts.

That a committal for contempt by either House is in - practice within its exclusive jurisdiction, since the facts constituting the alleged contempt need not be stated on the warrant of committal [May's Parliamentary Practice: p. 173]."

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

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 385

59. Sarkar J. in his separate judgment in the same case was ad idem with the majority opinion in this context. Rejecting the contentions based on the observations in Bradlaugh, he observed at page 508 as under:-

"This passage should suffice to illustrate the nature of the dispute. It will not be profitable at all, and indeed I think it will be 'mischievous', to enter upon a discussion of that dispute for it will only serve to make it turbid, by raking up impurities which have settled down, a stream which has run clear now for years. Furthermore that dispute can never arise in this country for here it is undoubtedly for the courts to interpret the Constitution and, therefore, Article 194(3). It follows that when a question arises in this country under that article as to whether the House ofCommons possessed a particular privilege at the commencement of the Constitution, that question must be settled, and settled only, by the Courts of law. There is no scope of the dreaded "dualism" appearing here, that is, courts entering into a controversy with a D House of a legislature as to what its privileges are. I think what I have said should suffice to explain the nature of the privileges for the purposes of the present reference and I will now proceed to discuss the privileges of the Assembly that are in question in this case, using that word in the sense of rights ancillary to the main function of the legislature." E

(Emphasis supplied)

60. His conclusions to above effect were settled in view of the legal

---- position in England, as is clear from the observations at page 522 of his Judgment, which read as under:-" F

"All privileges of the House of Commons are based on law. That law is known as Lex Parliamenti. Hence privileges are matters which the House of Commons possesses as of right. In Stockdale v. Hansard, [112 E. R. 1112] all the Judges held that the rights of G the House of Commons are based on Lex Parliamenti and that law like any other law, is a law of the land which the courts are entitled to administer."

61. The case State of Karnataka v. Union of India, [ 1977] 4 SCC 608 H

386 SUPREME COURT REPORTS (2007] I S.C.R.

A decided by a Constitution Bench (seven Judges) of this Court finally clinched the issue beyond the pale of any doubts. The case had arisen against the backdrop of appointment by the Central Government of a Comn1ission of Inquiry against the then Chief Minister of Karnataka. The State of Karnataka filed a suit in this court, inter alia, for a declaration that the appointment of the Commission was illegal, in as much as the terms of B reference of the Inquiry Commission covered matters falling exclusively within the sphere of the State's legislative and executive power on which basis, amongst others, it was contended that the federal structure implicit and accepted as an inviolable basic feature of the Constitution was being abridged. Some arguments in the context of this controversy were founded c on the powers and privileges of the legislature of the State under Article 194 of the Constitution. Examining these arguments, Beg CJ.· in his judgment observed as under:-

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

62. In view of the above clear enunciation of law by Constitutional Benches of this court in case after case, there ought not be any doubt left that whenever Parliament, or for that matter any State legislature, claims any power or privilege in terms of the provisions contained in Article 105(3), or H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 387

Article 194(3) as the case may be, it is the court which has the authority and the jurisdiction to examine, on grievance being brought before it, to find out if the particular power or privilege that has been claimed or asserted by the legislature is one that was contemplated by the said constitutional provisions or, to put it simply, if it was such a power or privilege as can be said to have been vested in the House of Commons of the Parliament of United Kingdom as on the date of commencement of the Constitution of India so as to become available to the Indian legislatures.

Historical perspective from England

63. To find out the basis of House of Commons possessing the right of expulsion of its members, it is necessary to examine the historical perspective of preliminary powers and privileges and immunities. For finding out the roots of powers, privileges and immunities of House of Commons, it is necessary to refer to the views of constitutional authors mentioned hereinbefore. D

64. The term 'privilege in law' is defined as immunity or an exemption from some duty, burden, attendance or liability conferred by special grant in derogation of common right. The term is derived from an expression 'privilegium' which means a law specially passed in favour of or against a particular person. E

65. May, in his "Parliamentary Practice", has defined parliamentary privilege as "the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge F - ...~ . their functions, and which exceed those possessed by other bodies of individuals''. Thus, privilege, though not part of the law of the land, is to a certain extent an exemption from the ordinary law.

66. Rutledge, in his "Procedure of the House of Commons" [Volume I, page 46), defined privileges as "the sum of the fundamental rights of the G House and of its individual members as against the prerogatives of the Crown, the authority of the courts oflaw, and the special rights of the House of Lords".

67. The origin of parliamentary privileges is inextricably intertwined H

388 SUPREME COURT REPORTS (2007) I S.C.R

A with the specific history of the institution of Parliament in England, and more specifically with the battle between Parliament and the English Monarch for political control in the 17th century. An understanding of the manner in which the concept of parliamentary privilege developed, therefore, requires a sound understanding of the institutional history of Parliament in the United Kingdom. B

68. Parliament in the United Kingdom emerged in the Thirteenth Century. By 14th century, Parliament had begun to exercise a small measure of judicial power. It took on the role of a court in relation to treason and related matters. In 1376, Parliament, specifically the Commons, had taken upon itself the power of impeachment of the King's servants. Thus, the Lords could hear appeals of treason and Bills of Attainder where the accuser was the King. The long struggle of the British subjects to bring about a parliamentary democracy involved royal concessions, people's resistance, claims against Crown prerogatives, execution of Monarchs and restoration of Parliament, struggles, advances and retreats, and it is through these turbulent times that the House of Commons emerged as a representative form of government.

69. The origin of some of the Parliamentary privileges preceded Parliament itself and was part of the King's peace, common to all his subjects, but in special measure shared by his servants. The privilege of freedom of speech eventually came to be statutorily recognized by Article 9 of the Bill of Rights Act, 1688.

70. May (23rd :edn., pp.78, 79, 83, 89, 90) describes the historical development of privileges as follows:-

""At the commencement of every Parliament it has been the custom for the Speaker, in the name, and on the behalf of the Commons, to lay claim by humble petition to their ancient and undoubted rights and privileges; particularly to freedom of speech in debate, freedom from arrest, freedom of access to Her Majesty whenever occasion shall require; and that the most favourable construction should be placed upon all their proceedings ....

Freedom of Speech - The first claim in the Speaker's petition is for freedom of speech in debate. By the latter part of the fifteenth

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 389

==.:_, - , I century, the Commons of England seems to have enjoyed an undefined right to freedom of speech, as a matter or tradition rather than by virtue of a privilege sought and obtained ...

FREEDOM FROM ARREST - The second of the Speaker's customary petitions on behalf of the Commons at the beginning of a Parliament is for freedom from arrest. The development of this privilege is in some ways linked to that of other privileges. Arrest was frequently the consequence of the unsuccessful assertion of 't freedom of speech, for example ....

FREEDOM OF ACCESS -The third of the Speaker's petitions is for freedom of access to Her Majesty whenever occasion shall require. This claim is medieval (probably fourteenth century) in origin, and in an earlier form seems to have been sought in respect of the Speaker himself and to have encompassed also access to the Upper House.... D FAVOURABLE CONSTRUCTION - The final petition which the speaker makes is that the most favourable construction should be placed upon all the House's proceedings ...

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

71. In the UP Assembly (supra) Case, while dealing with questions F relating to Powers, Privileges and Immunities of State Legislatures, it was observed as under:-

"69 .... Parliamentary privilege, according to May, is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each G House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the ordinary law. The particular privileges of the House of Commons have been defined as "the H

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

A sum of the fundamental rights of the House and of its individual Members as against the prerogatives of the Crown, the authority of the ordinary courts of law and the special rights of the House of Lords". There is a distinction between privilege and function, though it is not always apparent. On the whole, however, it is more convenient to reserve the tenn "privilege" to certain fundamental B rights of each House which are generally accepted as necessary for the exercise of its constitutional functions. The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are "absolutely necessity for the due execution of its powers". They are enjoyed by individual Members, because the c House cannot perfonn its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity [May's Parliamentary Practice, pp. ·42-43]."

72. According to May, origin of the modem Parliament in England D consisted in its judicial functions. It was Maitland who was the first to point out in his introduction to the Parliament Roll of 1305 that Parliament at that time was the King's "Great Court" and thus, inter alia, the highest Court of royal justice. It is now generally accepted that a strong judicial streak in the character of the earliest Parliament was noticeable throughout the earlier E period of English history, reflected by the fact that dispensation of justice was one of its chief functions in the eyes of the subjects of the realm, aside from the political and economic business.

73. Out of the two chambers of Parliament of United Kingdom, the F House of Lords has continued till the present times as the Court of Judicature, as part of which function it has the power to sit as a Court during prorogation and dissolution. The final appellate jurisdiction vests in the Lords and, in matters of impeachment, the Lords are the sole judges of the crime in proceedings that involve the other chamber, the House of Commons, as the accusers or advocates. G

74. While the House of Lords would claim its powers and privileges on the basis of theory of inheritance and Divine Right of Kings, the House of Commons was constrained to wage a fierce struggle against the prerogatives of the Crown and of the House of Lords to assert and claim H its rightful place. It was almost a fight for its existence in which the House

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 391

~'t of Commons was pitted against not only the Crown and the House of Lords, A but also the judicature which was regarded as a creature of the King and which wing was subordinate to the House of Lords that happened to be the main opponent of the House of Commons.

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

76. The Resolution of 1704, mentioned in the passage extracted above, had been adopted by the House of Lords in answer to an earlier resolution passed by the House of Commons declaring its intent to treat the conduct of any person in moving the court for relief in matters mentioned by the resolution of the House of Commons as amounting to its contempt. H

392 SUPREME COURT REPORTS [2007) l S.C.R.

A 77. The main privileg(!s which are claimed by the House of Commons were noticed at length at page 462 of the judgment in the UP Assembly (supra) Case, as under:-

"72 ...Freedom of speech is a privilege essential to every free council or legislature, and that is claimed by both the Houses as B a basic privilege. This privilege was from 1541 included by established practice in the petition of the Commons to the King at the commencement of the Parliament. It is remarkable that notwithstanding the repeated recognition of this privilege, the Crown and the Commons were not always agreed upon its limits. c This privilege received final statutory recognition after the Revolution of 1688. By the 9th Article of the Bill of Rights, it was declared "that the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament [May's Parliamentary D Practice, p. 52]".

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

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

78. The privilege of freedom of speech under Article 9 of the Bill of Rights includes the freedom of the member· to state whatever he thinks fit in debate, howsoever offensive it may be to the feelings, or injurious to the character, of individuals. He is protected by his privilege from any action for libel, as well as from any question or molestation [May's Parliamentary Practice, 23rd edn., pp. 96-97). The privilege of freedom from arrest has never been allowed to interfere with the administration of criminal justice or emergency legislation.

~ RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 393

t...) 79. In early days of its struggle the House of Commons would assert A a claim to all kinds of privileges for itself and its members but in the course of time many of such privileges either fell into disuse or faded out of existence or came to be controlled by legislation. Examples in this context can be given of the privilege of freedom from being impleaded, limitation put by the Parliamentary Privilege Act, 1770 on the freedom from arrest and the privilege of exemption from jury service. What is important for purposes at B hand is that the major privileges properly described as privileges essential for the efficient functioning of the House still continue in force.

80. As per May's Parliamentary Practice [23rd edn., pp. 128] contempt came to be defined as "any act or omission which obstructs or impedes c either House of Parliament in the performance of its functions or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results even though there is no precedent of the offence".

81. Power to punish and commit for contempt is one of the privileges D asserted by both Houses of Parliament in United Kingdom. In the context ~ " of power to punish for contempt, this Court found in the UP Assembly (supra) Case (at page 461) as under:-

" .... Since the decision of the Privy Council in Kielley v. Carson, E [4 Moore P.C. 63] it has been held that this power is inherent in the House of Lords and the House of Commons, not as a body with legislative functions, but as a descendant of the High Court of Parliament and by virtue of the lex et consuetudo parliamenti [May's Parliamentary Practice, p. 44]. Historically, as originally F ~ " the weaker body, the Commons had a fiercer and more prolonged struggle for the assertion of their own privileges, not only against the Crown and the courts, but also against the Lords. Thus the concept of privilege which originated in the special protection against the King began to be claimed by the Commons as customary rights, and some of these claims in the course of repeated efforts G to assert them hardened into legally recognised "privileges".

-4 .... 82. As has been noticed earlier, the historic origin of the doctrine of privileges of the legislature in England is founded on its judicial functions. The House of Lords has always claimed itself to be a Court of Record and H

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

A as such having the inherent authority and power not only to imprison but also to impose fines in matters of contempt. But then, its position as a Court of Record does not inure, according to Lord Kenyon, "when exercising a legislative capacity". According to May's Parliamenta1y 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. B Be that as it may, as observed in the UP Assembly (supra) Case (at pp. 465- 466), on the authority of May's Parliamentary Practice, the genesis of the power of commitment, "the key stone of Parliamentary privileges", as possessed by the House of Commons, arises out of "the medieval inability to conceive of a constitutional authority otherwise than as in some sense C a court of justice".

83. The medieval concept of Parliament in England primarily as a court of justice, the 'High Court of Parliament' gave rise to the firm belief that in order to defend the dignity of Parliament against disrespect and affronts, there must vest in it a power to commit, without which the privileges of D Parliament would not exist. On the penal jurisdiction of the House arising from this, May in his "Parliamentary Practice" [23rd edn. pp. 91-92] would observe as follows:-

"The Lords derived an independent power to punish from their E original membership of the Curia Regis. Immemorial constitutional antiquity was not similarly available to the Commons, and indeed its possession of penal jurisdiction was challenged on this ground as late as the nineteenth century, and has been defended by arguments which confused legislative with judicial jurisdiction. The F difficulties the Commons experienced in proving its case to be a Court of Record (see p. 161 }-an issue never determined at law - were connected with these problems. Yet whatever the legal or constitutional niceties, in practice the House on many occasions in the sixteenth and seventeenth centuries exercised its power to impose fines (seep. 161) and imprison offenders. These offenders might include Members of the House itself or non-members, the latter comprising sheriffs, magistrates and even judges of the superior courts."

84. Almost to ensure that there be not any doubts entertained in this behalf in any quarter, while asserting its right to commit offenders on the

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 395 . ..., same terms as the House of Lords, it was said in the House of Commons A in 1593 as under:-

"This court for its dignity and highness hath privilege, as all other courts have. And, as it is above all other courts, so it hath privilege above all other courts; and as it hath privilege and jurisdiction too, so hath it also Coercion and Compulsion; otherwise the jurisdiction B is nothing in a court, if it hath no Coercion." ..,

85. The House of I .ords would eventually concede this power in favour of House of Commons at the conference between the two Houses as noticed in the case of Ashby v. White, [L.J. (1701-05), 714]. This has ever since been consistently recognized even by the courts of law in England. The origin c of this power of commitment for contempt, judicial in its nature, is thus traceable to the conception of Parliament as primarily a court of justice - the "High Court of Parliament".

86. In matters concerning import of powers and privileges of the House D 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 (supra) had administered a note of caution that must hold good even for purposes at hand. At page 591 of the judgment, it was observed thus:- E "I 2 I. In this connection, it is essential to bear in mind the fact that the status, of a superior Court of Record which was accorded to the House of Commons, is based on historical facts to which we have already referred. It is a fact of English history that the F Parliament was discharging judicial functions in its early career. It is a fact of both historical and constitutional history in England that the House of Lords still continues to be the highest Court of· law in the country. It is a fact of constitutional history even today that both the Houses possess powers of impeachment and attainder. It is obvious, we think, that these historical facts cannot be G introduced in India by any legal fiction. Appropriate legislative provisions do occasionally introduce legal fictions, but there is a I A, limit to the power of law to introduce such fictions. Law can introduce fictions as to legal rights and obligations and as to the retrospective operation of provisions made in that behalf, but legal H

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

A fiction can hardly introduce historical facts from one country to another." (Emphasis supplied)

87. In the UP Assembly (supra) Case, it was settled by this court that a broad claim that all the powers enjoyed by the House of Commons at the B commencement of the Constitution of India vest in an Indian legislature cannot be accepted in its entirety because there are some powers which cannot obviously be so claimed. In this context, the following observations appearing at page 448 of the judgment should suffice:-

c " .... Take the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker "to have at all times the right to petition, counsel, or remonstrate with their Sovereign through their chosen representative and have a favourable construction placed on his words was justly regarded by the Commons as fundamental privilege" [Sir Erskine May's D Parliamentary Practice (16th ed.) p.86]. It is hardly necessary to point out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder and impeachments cannot be claimed by the House. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed E in three ways, first by tke order of new writs to fill vacancies that arise in the Commons in the course of a parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in cases of doubt [ibid, p. 175]. This privilege again, admittedly, cannot be claimed by the House. F Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House."

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

Indian Constitutional History

The East India Company Act, 1784 formed the basis of the Indian H Constitution till 1858. It created Commissioners for the affairs of India to

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 397

- ') be appointed at home by the King. This was followed by the Charter Act, A 1833 that provided for a legisfative authority. In this dispensation, the meetings of the Governor-General's Council for law-making were distinguished from the meetings of the Council for discharging other, i.e., executive functions. Macaulay, as Law Member of the Governor General Council, against the backdrop of the insistence by the Executive Councilor of the Governor General's Council that all the drafts of laws should be fully B ~ considered by the Executive Council before they were laid before the ., Legislative Council for final passage, in his speech of 13th June, 1835, described the deliberztive chamber as the "supreme Legislative Council", and said "when the Parliament gave us the power of legislating it gave us also, by necessary implication, all the powers without which it is impossible c to legislate well", referring in this context particularly to power "to correspond directly with the subordinate Governments"; "directly call for information from any public functionary"; and "require the attendance of the military or financial secretary". An expansion of the Legislative Council of India was provided by the Charter Act of 1853, followed by certain further additions D ... ' by the Acts of 1854 and 1861.

90. The period 1915-1950 indeed marks a definite advance in the history of the development of parliamentary privilege in India. By the Government of India Act, 1915, the entire position of Parliamentary privilege that obtained before that time was consolidated. The Government of India Act, E 1915, provided in Section 63 that the Indian Legislature shall consist of the Governor-General and "two chambers, namely, the Council of State and the Legislative Assembly".

....... 91. Section 67 of the Act related to the business and proceedings of the F Indian Legislature. Sub-Section (1) enabled provision to be made by rules, inter alia, "for regulating the course of business and the preservation of order in the chambers of the Indian legislature"; "as to the persons to preside at the meetings of the Legislative Assembly in the absence of the president and the deputy president"; for "quorum"; and "for prohibiting or regulating the asking of questions on, and the discussion of any subject specified in the rules". Sub- G Section (6) allowed "Standing orders" to be made providing for the conduct of business and the procedure, to be followed in either chamber of the Indian ..I -'. Legislature in so-far-as these matters are not provided for by rules made under this Act. Sub-Section (7) declared "Subject to the rules and standing orders affecting the chamber" that there shall be "freedom of speech in both H

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

A chambers of the Indian legislature"; and that no person shall "be liable to any proceedings in any court by reason of his speech or vote in either chamber, or by reason of anything contained in any official report of the proceedings of either chamber".

92. The Government of India Act, 1919 brought about material changes in the Government of India Act, 1915. The legislature now ceased to be part of the Executive and stood on its own. It was no longer an expanded Governor-General's Council with additional members. The Governor General and the Executive Councilor ceased to be ex-officio members of the Legislative Council. The bicameral Indian Legislature would consist of both nominated and elected members.

93. Section 65 of the Government oflndia Act, 1915, as amended in 1919, provided for the powers of the Indian Legislature, subject to the specific prohibition that it shall not have the powers, inter alia, to make laws "unless expressly so authorized by Act of Parliament (of United Kingdom)", D amongst others, "affecting the authority of Parliament, or any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland whereon may depend in any degree the allegiance of any persons to the Crown of the United Kingdom, or affecting the sovereignty or domination of the Crown over any part of British India". The powers of legislation of the local legislatures were defined more or less similarly in Section 80 A.

94. 'Parliamentary Privilege in India' by Prititosh Roy (1991 ), in Chapter- 4, titled 'Historical Background of Parliamentary Privilege in India (1915- 1950)' mentions, at page 53, about the Report dated 3rd December, 1924 of the Reforms Inquiry Committee under the chairmanship of Sir Alexander Muddiman (the Home Member), which included as members Sir Tej Bahadur Sapru and Mr. Jinnah, which had examined the issue of powers of the Indian Legislature and gave vent to the hope and aspiration of bringing legislatures in India "at par with the House of Commons" and that "eventually no doubt similar provision will be made in the Constitution of British India". On the basis of the Report, the Indian Legislature passed the Legislative Members Exemption Act, 1925 (Act XXIII of 1925) which granted two new parliamentary privileges; viz. the privilege of exemption of the legislator from jury service and the privilege of freedom from arrest. These new privileges would be reflected in the Code of Criminal procedure 1898 by incorporation in Section

~ r RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 399 -,. 'r 323 and insertion of Section 135A respectively. A

95. Prititosh Roy mentions in "Parliamentary Privilege in India" [p-55), the Legislative Assembly created under the Government of India Act, l 919 witnessed a number of instances wherein the privileges of a legislative body

-..... ., were asserted. These include the adjournment motion moved on 21st January, l 927 by Pt. Motilal Nehru to discuss the conduct of the Government in detaining Shri Satyendra Chandra Mitra, an elected member of the House, on the ground it tantamounts to a breach of the Privileges of the House and B

the adjournment motion in the Legislative Assembly moved by Shri Gaya Prasad Singh on 4th September, 1928 agaim,t the Editor of the Times oflndia having made an attack on the President. of the House, though disallowed but c with the President having held that it is the inherent right of any assembly to defend itself against outside attacks and it is perfectly open in a proper cause for the House to table a substantive motion and pass a vote of censure or condemnation on the attacker.

96. Prititosh Roy also mentions at Page 56 an interesting episode D " involving the Indian Press Act, 1931 that was enacted on 13th February,

1932. In its context, a question arose before the Legislative Assembly under the Government of India Act, 1919 regarding breach of the privileges upon a notice of motion having appeared in the Press given by a member. Acknowledging that there was a convention in the House of Commons E against release by a member to the Press for publication questions for resolutions before they are admitted by the chair and that breach thereof was treated as a serious breach of the privilege of the House of Commons which had ample powers to deal with the member in question, the President of Indian Legislative Assembly noted that "unfortunately neither this House F I nor the Spokesmen have such powers" and commended that "this well established convention, which is observed in the House of Commons should also be observed as one of the conventions of this House".

97. Prititosh Roy refers at Pages 58-59 to Debates oflndian Legislative Assembly [22nd January, 1935, p. 81 ff], which quote yet another incident G that needs to be taken note of. Shri N.C. Bardaloi had raised an issue about .... .... the conduct of the Government in preventing Mr. Sarat Chandra Bose, an elected Member of the House, from attending to his duties as Member and thereby seriously infringing the privileges of the House. Sir N.N. Sircar, the then Law Member of the Government of India replied stating that the House H

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

- A had no power to punish for its breach of privilege.

98. The Government of India Act, 1935 came into force on 1st April, 1937 and was operative till 14th August, 1947. Sections 28 and 71 of the Government of India Act, 1935 dealt with the subject of Privileges etc. of members of Federal Legislature and Provincial Legislatures respectively. B

99. The provision in Sub-Section (1) of Section 71 extended the freedom of speech and immunity to speech or vote even in the Committees of the Legislature and also covering publication under the authority of a Chamber of the Legislature of the House. Sub-Section (I) of Section 71, inter a/ia, declared that "Subject to the provisions of this Act and to rules and c standing orders regulating the procedure of the Legislature there shall be freedom of speech in every Provincial Legislature" and that every member shall be entitled to immunity from "any proceedings in any court in respect of anything said or any vote gi'ven by him in the Legislature or any committee thereof'.

D 100. Sub-Section (2) of Section 71 of the Government of India Act, 1935, for the first time, empowered the Provincial Legislature to pass an Act to define the other privileges of the members and, pending such legislation, the pre-existing privileges were confirmed. Some of the Provincial Legislatures did legislate or attempt to legislate on this subject. Sub-Section E (2) of Section 71 was on lines similar to present Article 194 (3). It read as follows:-

"71.(2) In other respects the privileges of members ofa Chamber of a Provincial Legislature shall be such as may from time to time be defined by Act of the Provincial Legislature, and, until so defined, F shall be such as were immediately before the commencement of this Part of this ,A_ct enjoyed by members of the Legislative Council of the Province."

IOI. Sub-Section (3) of Section 71 watered down the powers and privileges of Indian Legislatures under the Government of India Act, 1935. G It ran as follows:-

"71.(3) Nothing in any existing Indian Law, and, notwithstanding anything in the foregoing provisions of this Section, nothing in this Act, shall be construed as conferring, or empowering any H Legislature to confer, on a chamber thereof or on both Chambers

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 401

sitting together or any Committee or officer of the Legislature, the status of a court, or any punitive or disciplinary powers other than the power to remove or exclude persons infringing the rules or standing orders, or otherwise behaving in a disorderly manner."

102. Clearly, the intendment was to restrict the powers and privileges of Indian Legislatures to remedial action for unobstructed functioning, severely restricting, or rather forbidding, the exercise of punitive powers by a House of Legislature.

103. Similar provisions, mutatis mutandis, were made for the Central Legislature, called the Federal Legislature, under Section 28 which, however, never came into force since Part II of the Act of 1935 concerning the c Federation of India never became operative. Sub-Section (1) of Section 28 of the Government of India Act, 1935, inter alia, declared that there shall be "freedom of speech" in the Federal Legislature "Subject to the provisions of this Act and to the rules and standing orders regulating the procedure", and that "no member of the legislature shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any Committee thereof'.

104. Sub-Section (2) of Section 28 of the Government of India Act, 1935, for the first time, empowered the Federal Legislature to pass an Act E to define the other privileges of the members and again, pending such legislation, the pre-existing privileges were confirmed. Its language has a resonance of what is employed in present Article 105 (3). It stated as follows:-

r ' "28. (2). In other respects, the privileges of members of the Chambers F shall be such as may from time to time be defined by the Act of

- the Federal Legislature, and, until so defined, shall be such as were immediately before the establishment of the Federation enjoyed by members of the Indian legislature." G

10. Sub-Section (3) of Section 28 was designed to restrict the powers and privileges of Indian Federal Legislature to remedial action for unobstructed functioning. While preventing the legislature from exercising the powers of the Court for any punitive or disciplinary powers, it allowed the limited jurisdiction to remove or exclude the person infringing the rules or standing H

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

A orders or otherwise behaving in a disorderly manner. It read thus:-

"28. (3). Nothing in any existing Indian Act, and, notwithstanding anything in the foregoing provisions of this section, nothing in this act, shall be construed as conferring, or empowering the Federal legislature to confer, on either Chamber or on both Chambers B sitting together, or on any committee or officer of the Legislature, the status of the Court, or any punitive or disciplinary powers other than a power to remove or exclude persons infringing the rules or ... standing orders, or otherwise behaving in a disorderly manner."

c 106. It is also necessary to take note of sub-Section (4) of section 28 of Government of India Act, 1935 since it made the intention clear that for punitive action in certain matters the Legislature would have to go before a court. It provided as follows:-

"28. (4). Provision may be made by an Act of the Federal Legislature D for the punishment, on conviction before a court, of persons who ~ refuse to give evidence or produce documents before a committee of a Chamber when duly required by the Chairman of the Committee to do so.

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

107. Prititosh Roy at Page 71 mentions that the above mentioned provisions were found by the Legislatures to be ineffective and inadequate for upholding the dignity and prestige of the legislature in India and for safeguarding the fight and privileges of Members and officers thereof. This became subject matter of grievance conveyed in a Memorandum by the . G President of the Indian Legislative Assembly to the Reforms Commissioner of the Government oflndia on 29th January, 1938, raising a demand that the Central as well as Provincial Legislature in India should have among other I- privileges also "the power to proceed in·contempt like the High Court and inflict punishment on any pe~son who violates the privileges of the House H and of the members thereof, or tries to bring the House or the President or

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 403

the Speaker into contempt" and for a request to be made to the Government A oflndia to take immediate steps to get Sections 28 and 71 of the Government of India Act, 1935 amended so as to secure for the Central and Provincial Legislatures and the officers and members thereof "all the powers and privileges which are held and enjoyed by the Speaker and members of the British House of Commons". B

108. The Indian Independence Act, 1947, which brought freedom from alien rule, made India a full fledged Dominion of the Commonwealth of Nations. The Act conferred, through Section 6(2), sovereign legislative power on the Indian dominion abrogating the Imperial Doctrine of Repugnancy in the following terms:- C

"No law and no provision of any law made by the Legislature of either of the new Dominions (India and Pakistan) shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of this or any existing or future Act D of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act."

109. The Governor General of India issued an Adaptation Order by which, amongst others, the provisions of Section 28 of the Government of India Act, 1935, excepting the sub-Sections (3) and (4), were brought into force for the first time for purposes of dominion legislature,. As a result, aside from the "freedom of speech in the legislature", the law provided that "in other respects the privileges of the members of the domain legislature" shall be such as may from time to time bt: defined by dominion legislature and, until so defined, should be such as were immediately before the establishment of the dominion enjoyed by the members of the Indian legislature. The omission of sub-Section (3) and sub-Section (4) of Section 28 indicated that the restrictions on the exercise of punitive and disciplinary powers by the legislature were being removed.

110. As a result of the omission of sub-Sections (3) & (4) of Section G 28 by the Order, the Central Legislature became entitled to pass any Act on the subject of privileges under sub-Section (2) without any restriction and assume punitive and disciplinary powers similar to those invested in the .• "' House of Commons in England. But then, the Central Legislature did not pass any law on privileges in exercise of the enabling powers under Section H

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

A 28 (2) of the Government of India Act, 1935, as adapted after Independence.

111. Dr. Ambedker, the Chairman of the Drafting Committee of the Constitution, while mooting for the Parliamentary System similar to the one obtaining in England noted, in the course of debates in the Constituent Assembly, that in the latter jurisdiction, the Parliamentary System relies on B the daily assessment of responsibility of the executive by Members of Parliament, through questions, resolutions, no-confidence motions and debates and periodic assessment done by the electorate at the time of election; unlike the one in the United States of America a system far more effective than the periodic assessment and far more necessary in a country c like India. India thus adopted parliamentary Constitutional traditions.

112. The concept of parliamentary privileges in India in its modem form is indeed one of graft, imported from England. The House of Commons having been accepted by the Constituent Assembly as the model of the D legislature, the privileges of that House were transplanted into the Draft Constitution through Articles 105 and 194.

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

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

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

-I 'r RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 405

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

114. The reference to the House of Commons of the Parliament of the United Kingdom provoked comment and intense debate. As is seen from the B Constituent Assembly Debates (Volume 8of19.5.1949 page 143-149), Shri H.V. Karnath suggested that draft Article 85 should truly rely upon our own """'! precedents, our own traditions and no importation must be attempted. While commending reference to be made instead to privileges "as were enjoyed by the members of the Dominion Legislature of India immediately before c commencement" of the Constitution, he spoke thus:-

"Sir, my knowledge of the various Constitutions is not as vast or as profound as that of Dr. Ambedkar, but relying on my meagre knowledge of these constitutions, I venture to state that this is the first instance of its kind where reference is made in the Constitution D of a free country to certain provisions obtaining in the constitution ~ of another State. I see no valid reason why this should be done. It may be that the rights and privileges which we are going to confer upon the Members of Parliament of free India will be identical with, or more or less similar to, those enjoyed by the Members of the House of Commons in the United Kingdom. But E may I ask, Sir, in all humility "ls it necessary or is it desirable, when we are drafting our own Constitution that we should lay down explicitly in an Article that the provisions as regards this matter will be like those of the House of Commons in England?"

...., ... F It may be argued in support of this proposition that there is !lothing derogatory to the dignity of our Constitution or of our State in making reference to the United Kingdom. It may be further reinforced by the argument that now we have declared India as a full member of the Commonwealth, certainly there should be no objection, or any sort of compunction in referring to the House of G Commons in England. But may I suggest for the serious consideration of the House as to whether it adds - it may not be derogatory, or detract from the dignity of the Constitution - but -''""" does it add to the dignity of the Constitution? We say that such and such thing should be what it is in the United Kingdom or in H

406 SUPREME COURT REPORTS [2007) I S.C.R.

A America. Will it not be far better, far happier for us to rely upon our own precedents, or our own traditions here in India than to import something from elsewhere and incorporate it by reference in the Constitution? Is it not sufficient to say that the rights and privileges and immunities of Members shall be such as have been enjoyed by the Members of the Constituent Assembly or Dominion B Legislature just before the commencement of this Constitution? Personally, I think, Sir, this would be far better. I venture to hope that my honourable friends in this House will be inclined to the same view that instead of quoting or citing the example of the United Kingdom it would be far better for us to rely upon the c tradition we have built up here. Surely, nobody will dispute the fact that the privileges and immunities enjoyed by us here today are in no way inferior to, or worse than, those enjoyed by Members of the House of Commons in the United Kingdom.

As a matter of fact, I think most of us do not know what are D the privileges of the Members of the House of Commons. We know very well what our privileges at present are. Therefore, Sir, t it is far better to build on our own solid ground, rather than rely on the practices obtaining in other countries ...... "

E 115. Similar views were expressed in the course of the debate, amongst others, by Shri Jaspat Roy Kapoor, Prof. K.T. Shah, Prof. Shibban Lal Saxena, Mr. Naziruddin Ahmad, Dr. P.S. Deshmukh. Prof. K. T. Shah had also proposed insertion of clause (5) in draft Article 85 in the following form:-

F "In all matters of the privileges of the House of Parliament or of .members thereof the House concerned shall be the sole Judge and any order, decree or sentence duly passed by that House shall be enforced by the officers or under the authority thereof'.

116. Sir Alladi Krishnaswamy Iyer, while replying to the criticism, '· G stated thus:-

"Sir, in regard to the Article as it stands, two objections have been raised, one based upon sentiment and the other upon the advisability of making a reference to the privileges of a House in another State H with which the average citizen or the Members of Parliament here

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 407

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

I will deal with the second objection. If you have the time and if you have the leisure . to formulate all the privileges in a E compendious form, it will be well and good. I believe a Committee constituted by the Speaker on the legislative side found it very difficult to formulate all the privileges, unless they went in detail into the whole working of parliamentary institutions in England and the time was not sufficient before the legislature for that purpose and accordingly the Committee was not able to give any effective advice to the Speaker in regard to this matter. I speak, subject to correction, because I was present at one stage and was not present at a later stage. Under these circumstances I submit there is absolutely no question of infra dig. We are having the English language. We are having our Constitution in the English language side by side with Hindi for the time being. Why object only to reference to the privileges in England?

The other point is that there is nothing to prevent the Parliament from setting up the proper machinery for formulating H

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

A privileges. The article leaves wide scope for it. "In other respects, ·r "1io-- the privileges and immunities of members of the Houses shall be such as may from time to time be defined by Parliament by law and, until so defined, shall be such as are enjoyed by the members of .. the House of Commons of the Parliament of the United Kingdom at the commencement of this Constitution." That is all what the B article says. It does not in any way fetter your discretion. You may enlarge the privileges, you may curtail the privileges, you may have a different kind of privileges. You may start on your own journey ;- without reference to the Parliament of Great Britain. There is nothing to fetter the discretion of the future Parliament of India. c Only as a temporary measure, the privileges of the House of Commons are made applicable to this House. Far from it being infra dig, it subordinates the reference to privileges obtained by the Members of Parliament in England to the privileges which may be confe1Ted by this Parliament by its own enactments. Therefore, D there is no infra dig in the wording of clause (3). This practice has been followed in Australia, in Canada and in other Dominions with advantage and it has secured complete freedom of speech and also the omnipotence of the House in every respect. Therefore, , "<

we need not fight shy of borrowing to this extent, when we are ~orrowing the English language and when we are using E constitutional expressions which are common to England. You are saying that it will be a badge of slavery, a badge of serfdom, if we ~ I say that the privileges shall be the same as those enjoyed by the members of the House of Commons. It is far from that. Today the Parliament of the United Kingdom is exercising sway over Great F Britain, over the Dominions and others. To say that you are as good as Great Britain is not a badge of inferiority but an ,., .., assertion of your own self-respect and also of the omnipotence of your Parliament. Therefore, I submit, Sir, there is absolutely no ):: force in the objection made as to the reference to the British ~

G Parliament. Under these circumstances, far from this article being " framed in a spirit of servility or slavery or subjection to Britain,

- ... it is framed in a spirit of self-assertion and an assertion that our country and our Parliament are as great as the Parliament of Great Britain. " r

(Emphasis supplied) H P-

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 409

117. Dr. Ambedkar when invited by the President to speak, expressed A - i satisfaction with the reply already given by Mr. Alladi by saying "Mr. Alladi and others have already given the reply, and I will be saying mostly the same thing, probably in a different way".

118. The amendment moved by Prof. Shah was negatived by the Constituent Assembly on 19th May, 1948. After adoption of a minor B amendment, for including the Committees of the Houses of Parliament, Draft Article 85 (present Article 105) was adopted and added to the Constitution.

119. Article 169 of the Draft Constitution, which corresponds to present Article 194, contained similar provision with respect to privileges of c the State Legislatures and came up for discussion before the Constituent Assembly on 3rd June, 1949. The speeches made on the occasion are available at pages 578-584 of the Constituent Assembly Debates (Volume 8).

Shri H.V. Karnath took exception in the following words:- D "Mr. President, I shall, by your leave, say a few words with respect to clause (3) of this Article. I do not propose to repeat what I said on an earlier occasion when we were discussing the corresponding clause relating to the privileges of members of the Central Parliament. But I should like to invite the attention of Dr. Ambedkar and also E of the H_ouse to the reaction among the people as well as in the Press to the clause that we adopted on that occasion. I have no doubt in my own mind that Dr. Ambedkar keeps his eyes and ears open, and cares to read some of the important papers daily or at least has them read to him daily. Soon after this clause relating to ...., .., F the privileges of Members of Parliament was adopted in this House, most of the Press was critical of the way in which we had dealt with the matter ............................. Britain, as the House is aware, has an unwritten Constitution though this particular measure may be written down in some document. .............. Many of the Members here who spoke on that occasion remarked that they did not know G what the privileges of the Members of the House of Commons were, ...... .... They could have at least drafted a schedule and incorporated it at the end of the Constitution to show what the privileges of the members of the House of Commons were. That was not done, and simply a clause was inserted that the privileges H

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

A obtaining there will obtain here as well. Nobody knows what those are, and a fortiori nobody knows what privileges we will have. Our Parliament presided over by Mr. Mavalankar has adopted certain rules of business and procedure tentatively, and has also appointed or is shortly going to appoint a Committee of Privileges. I wonder why we could not have very usefully and wisely adopted in our B Constitution something to this effect, that whatever privileges we enjoy as Members of the Central Parliament will be enjoyed by Members of the Legislature in the States. If at all there was a need for reference to any other Constitution. I think it was very unwise on the part of the Drafting Committee to refer to an unwritten c Constitution, viz., the Constitution of Great Britain. There is the written Constitution of the U.S.A., and some of us are proud of the fact that we have borrowed very much from the American Constitution. May I ask Dr. Ambedkar whether the privileges of the Members of the House of Commons in the United Kingdom are in any way superior to or better than the privileges of the Members D of the House of Representatives of the United States? If they are, I should like to have enlightenment on that point. If they are not, I think the reference to an unwritten Constitution is not at all desirable. .......... .If necessary let us put in a schedule to our Constitution, and say here in this Article that the privileges and rights are as specified in the Schedule at the end.... I would any day prefer a definite schedule in the Constitution showing what privileges shall be enjoyed by Members of the Legislatures and of Parliament. This particular clause, to my mind, should be recast. We have passed one clause on an earlier occasicn, but that is no reason why we should perpetrate the same mistake over and over again. I would, therefore, beg of Dr. Ambedkar and his wise team of the Drafting Committee and the House to revise this clause, and if necessary, to go back to the other clause, if they are convinced of the wisdom of this course, and: revise that also ~ccordingly, and proceed in a saner and a wiser manner." G

120. Dr. B.R. Ambedkar, Chairman of the Drafting Committee, trying to allay doubts, answered the criticism in the following manner:- ;-. ,. "Sir, not very long ago this very matter was debated in this House, H when we were discussing the privileges of Parliament and I thought

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 411

!hat as the House had accepted the Article dealing with the A privileges and immunities of Parliament no further debate would follow when we were really reproducing the very same provision with regard to the State Legislature. But as the debate has been raised and as my friend Mr. Karnath said that even the press is agitated, I think it is desirable that I should state what exactly is the reason for the course adopted by the Drafting Committee, B especially as when the debate took place last time I did not intervene in order to make the position clear.

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

.......... It is not easy, as I said, to define what are the acts and deeds which may be deemed to bring Parliament into disgrace. That would require a considerable amount of discussion and examination. That is one reason why we did not think of enumerating these privileges and immunities.

But there is not the slightest doubt in my mind and I am sure also in the mind of the Drafting Committee that Parliament must have certain privileges, when that Parliament would be so much exposed to calumny, to unjustified criticism that the Parliamentary institution in this country might be brought down to utter contempt and may lose all the respect which parliamentary institutions should have from the citizens for whose benefit they operate.

I have referred to one difficulty why it has not been possible to categorise. Now I should mention some other difficulties which we have felt.

It seems to me, if the proposition was accepted that the Act itself should enumerate the privileges of Parliament, we would have H

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

A to follow three courses. One is to adopt them in the Constitution, namely to set out in detail the privileges and immunities of Parliament and its m~mbers. I have very carefully gone over May's Parliamentary Practice which is the source book of knowledge with regard to the immunities and p~ivileges of Parliament. I have gone over the index to May's Parliamentary Practice and I have noticed B that practically 8 or 9 columns of the index are devoted to the privileges and the immunities of Parliament. So that if you were to enact a complete code of the privilege and immunities of Parliament based upon what May has to say on this subject, I have not the least doubt in my mind that we will have to add not less than c twenty or twenty five pages relating to immunities and privileges of Parliament. I do not know whether the Members of this House would like to have such a large categorical statement of privileges and immunities of Parliament extending over twenty or twenty five pages. That I think is one reason why we did not adopt that course. D The other course is to say, as has been said in many places in the Constitution, that Parliament may make provision with regard to a particular matter and until Parliall).ent makes that provision the existing position would' stand. That is the second course which we could have adopted. We would have said that Parliament may E define the privileges and immunities of the members and of the body itself, and until that happens the privileges existing on the date on which the Constitution comes into existence shall continue to operate. But unfortunately for us, as honourable Members will know, the 1935 Act conferred no privileges and no immunities on F Parliament and its members. All that it provided for was a single provision that there shall be freedom of speech and no member shall be prosecuted for anything said in the debate inside Parliament. Consequently that course was not open, because the existing Parliament or Legislative Assembly possesses no privilege G and n~ immunity. Therefore we could not resort to that course.

The third course open to us was the one which we have followed, namely, that the privileges of Parliament shall be the privileges of the House of Commons. It seems to me that except for the sentimental objection to the reference to the House of Commons H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 413 ' ., I cannot see that there is any substance in the argument that has A been advanced against the course adopted by the Drafting Committee. I therefore suggest that the article has adopted the only possible way of doing it and there is no other alternative way open to us. That being so, I suggest that this article be adopted in the way in which we have drafted it." B (Emphasis supplied)

121. Dr. Ambedkar thus reiterated the justification given by Mr. Alladi earlier, adding that the cataloguing of all powers and privileges would have added to the volume of the Constitution and that the course of adopting the powers and privileges of the existing legislature under Government of India c Act, 1935 was inadvisable as that body had hardly any rights available. The draft Article 169 (corresponding to present Article 194) was adopted after the above mentioned explanation and made part of the Constitution.

. 122. The Constitution thus adopted through Articles 105 and 194, for the Parliament and the State Legislatures respectively, the same powers, privileges and immunities as vested at the commencement of the Constitution in the House of Commons of the Parliament of United Kingdom, until they were "defined by law". From this perspective, the learned Additional Solicitor General is not wrong when he says that the establishment of privileges in India at par with those existing in the House of Commons was not reflective of a colonial legacy but, it was an assertion of the truly sovereign nature of the Indian Parliament.

123. The above discussion shows that the reference to the privileges of the House of Commons was justified on grounds of self-assertion that free India and its Parliament are as great as the Parliament of Great Britain. The replies above quoted also show that the drafting committee was more concerned about giving to the Parliament the widest privileges as exercised by members of Parliament in England, including the power to punish for contempt of the House. Full fledged provisions listing out the powers and privileges was not possible as there was not sufficient time or the leisure to formulate all of them in a compendious form, as had been found by a Committee constituted by the Speaker on the legislative side. That is why a wide scope and unfettered discretion was being left for the future H

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

A Parliament oflndia to set up the proper machinery for formulating privileges, which could be enlarged or curtailed. The adoption of the powers and privileges of the House of Commons was only as a temporary measure, following the practice that had been followed in Australia, in Canada and in other Dominions with advantage to secure complete freedom of speech B and also the omnipotence of the legislature in every respect.

124. We would like to dispose of here itself a small argument put across by learned Counsel for the Petitioners. The argument is that the fact that the provisions of Article I 05 were amended by the Constitution (44th Amendment) Act, 1978, thereby deleting the reference to the House of Commons with c effect from 20th June, 1979, the subject of powers and privileges are to be construed and pegged to that date and further that since the House of Commons had not exercised the power of expulsion after 1947, such power, even ifit existed in the House of Commons in 1947 has become obsolete and non-existing. While arguing that such power has not been inherited by the D Indian Parliament, counsel would also refer to certain recent developments in United Kingdom, in particular Parliamentary Privilege-First Report, published on 30.03.1999, in the wake of which a recommendation has been made that "the Parliament's power to imprison person whether member or not, who are in contempt of Parliament should be abolished" and further that, "the power E of the House of Lords to suspend its members should be clarified and confirmed".

125. We are not impressed with any of these arguments. The amendment brought into force in 1979 does not tum the clock ahead. The powers and privileges of the House of Commons of the Parliament of the United F Kingdom as on the date of commencement ofthe Constitution of India were the p0wers and privileges available to the Parliament before the amendment and that is the package which continues to be available post-amendment. Use of a particular power in 1947 would rather make it closer in terms of time to the crucial date of commencement of Indian Constitution. Its disuse in G later period is of no consequence. In this view, we are also not concerned with subsequent developments. ,, ....__

126. We are, thus, back at the issue of powers and privileges of the r

House of Commons of the Parliament of the United Kingdom as on the date J= of commencement of the Constitution of India. H t,.

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 415 -·.., Powers, Privileges and Immunities - generally A

127. As already noticed, Articles 105 and 194 employ almost identical language. Article 194 was at the core of the controversy in the UP Assembly (supra) Case.

128. Dealing with the provisions contained in Clause (1) of Article 194, B this Court observed thus:- -'I

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

"" 129. Taking note of Pandit Sharma (!), it was reiterated in the UP H

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

A Assembly (supra) Case that clause (1) of Article 194 no doubt makes a substantive provision of the said clause subject to the provisions of the Constitution; but in the context, those provisions cannot take in Article 19(l)(a), because latter article does not purport to regulate the procedure of the legislature and it is only such provisions of the Constitution which regulate the procedure of the legislature which are included in the first part of B Article 194(1)

130. On the provisions of clause (2) of Article 194, this is what the Court found:-

"It is plain that the Constitt1_tion-makers attached so much c importance to the necessity of absolute freedom in debates within the legislative chambers that they thought it necessary to confer complete immunity on the legislators from any action in any court in respect of their speeches in the legislative chambers in the wide terms prescribed by clause (2). Thus, clause (1) confers freedom D of speech on the legislators within the legislative chamber and clause (2) makes it plain that the freedom is literally absolute and unfettered " (Emphasis supplied)

131. In the context of the all important clause (3) of Article 194, the E Court observed thus:-

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

132. The above quoted observations squarely apply to the corresponding clauses of Article 105 of the Constitution.

H 133. In the context of the noticeable omission in other clauses,

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 417 ._. i including clause (3), of the expression "Subject to the provisions of this A Constitution" as used in clause ( 1) of Article 194, this Court felt:

" ........ all the four clauses of Article 194 are not in terms made subject to the provisions contained in Part III. In fact, clause (2) is couched in such wide terms that in exercising the rights conferred on them by clause (I), ifthe legislators by their speeches contravene B any of the fundamental rights guaranteed by Part III, they would not be liable for any action in any court. Nevertheless, iffor other valid considerations, it appears that the contents of clause (3) may not exclude the applicability of certain relevant provisions of the Constitution, it would not be reasonable to suggest that c those provisions must be ignored just because the said clause does not open with the words "subject to the other provisions of the Constitution". In dealing with the effect of the provisions contained in clause (3) of Article 194, wherever it appears that there is a conflict between the said provisions and the provisions pertaining to fundamental rights, an attempt will have to be made to resolve the said conflict by the adoption of the rule of harmonious construction" (Emphasis supplied)

134. The argument that though Article 194(3) had not been made subject to the provisions of the Constitution, it does not necessarily mean that it is not so subject, and that the several clauses of Article 194 should not be treated as distinct and separate provisions but should be read as a whole and that, so read, all the clauses should be taken as subject to the . ) provisions of the Constitution which, of course, would include part III of the F Constitution had been earlier rejected by tl;iis Court through unanimous view on the subject in Pandit Sharma (!).

135. 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 G 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. H

418 SUPREME COURT REPORTS [2007] l S.C.R.

A 136. It is settled that out of entire bouquet of privileges and powers which the House of Commons claimed at the time of its bitter struggle for recognition during the 17th through 19th centuries, all have not survived the test of time. Some were given up. Some others faded out by desuetude. In this context, this Court in UP Assembly Case opined thus:-

B " ....... .in every case where. a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was recognised by the English Courts. It would obviously be idle to contend that if a particular power which c is claimed by the House was claimed by the House of Commons but was not recognised by the English courts, it would still be upheld under the latter part of clause (3) only on the ground that it was in fact claimed by the House of Commons. In other words, the inquiry which is prescribed by this clause is: is the power in question shown or proved to have subsisted in the House of D Commons at the relevant time?" (Emphasis supplied)

13 7. The argument of availability of all the powers and privileges has been rejected in UP Assembly Case with reference to illustrations of some powers claimed by the House of Commons as mentioned in May's Parliamentary Practice (pages 86 & 175 in 16th Ed.), but which cannot be claimed by the Indian legislatures, including the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker "to have at all times the right to petition, counsel, or remonstrate with their Sovereign through their chosen representative and have a favourable construction placed on his words was justly regarded by the Commons as fundamental privilege"; the privilege to pass acts of attainder and impeachments; and the privilege in regard to its own Constitution which is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of a parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in cases of doubt.

Plea of negation by other Constitutional provisions

H 138. Before we consider the question whether the power of expulsion

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 419

can be read within Article 105(3) or not, it is necessary first to decide the question: will reading such a power under Article 105(3) violate any other provisions of the constitution. In other words, whether power of expulsion would be inconsistent with other provisions of the Constitution of India.

139. According to the Petitioners the power of expulsion is inconsistent with the following provisions of the Constitution:-

(i) The provisions relating to vacancy and disqualifications [Articles 101-103];

(ii) The provisions relating to salaries and allowances of members and their right to hold office till the end of the term [Article I 06 and Article 82(3)];

(iii) Citizen's right to vote and right of representation of their constituency in Parliament ; and D

(iv) The fundamental rights of the MPs. """·

(i} Provisions relating to vacancy and disqualification:

140. The Petitioners have relied on Articles 10 I, I 02 and I 03 of the E Constitution in support of their contention. The submission is that these Articles (relating to vacancy and disqualification) are exhaustive regarding the termination of membership of the ParliaGJ.ent and that no additional ground can exist based on which the membership of a sitting Member of Parliament can be terminated. Articles l 0 I, I 02 and I 03 appear under the F sub-heading "Disqualifications of Members" in Chapter II of Part V of the Constitution.

141. Learned counsel for the Petitioners submit that since the Parliament can create an additional disqualification by law, it was open to it to pass a G law seeking to disqualify from continuing the membership of such members as are guilty of conduct unworthy of a member. Such a law not having been passed, the petitioners submit, the termination of membership cannot take ~.

place through a resolution of the House purporting to act under Article 105(3). Articles 190 and 191 which pertain to the vacation of seats and H

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

A disqualifications for membership of State legislatures, correspond to, and are on identical terms as, Articles 101 and 102.

142. It is necessary to understand the exact import of the terms 'vacancy', 'disqualification' and 'expulsion'.

B 143. 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 c 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 D continuing membership, for example disqualification, death or expulsion.

144. In view of above, it is not possible to accept the submission that the termination of membership can be effected only in the manner laid down in Articles 101 and 102. While these articles do speak of qualifications for and continuation of membership, in our view they operate independently of E Article 105(3 ). Article 105(3) is also a constitutional provision and it demands equal weight as any other provisfon, and neither being 'subject to the provisions of the constitution', it is impossible to accord to one superiority over the other. We cannot accept the submission that the provisions in Articles 101 or 102 restrict in any way the scope of 194(3). There is no reason for them to do so. Though disqualification and expulsion both result in the vacancy of a seat, there is no necessity to read one in a way that restricts ;''

the scope of the other. The expulsion on being found unfit for functioning within the House in no way affects the qualifications that a member must fulfill, and there is no reason for the latter to affect expulsion. Both of the provisions can operate quite harmoniously. We fail to see any inconsistency between the two. Nor do we find any reason to support the claim that provisions under Articles 101 and 102 are exhaustive and for that reason, Article 105(3) be read as not to include the power of expulsion. Further, death as a cause for vacancy of a seat is also not mentioned in the relevant provisions. Similarly, it is not necessary for expulsion to be mention,~d, if there exists another constitutional provision that provides for such a power.

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 421

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.

" ......... but cannot be argued thats. 19 constitutes a complete code for the vacation of a seat or contains the only criteria upon which D a vacancy can occur .... " ...

146. Thus, we are unable to accept the Petitioners' contention that Articles 101 and 102 are exhaustive with respect to termination of membership. Therefore, power of expulsion cannot be said to be inconsistent with these provisions.

147. In connection with this issue, the Petitioners have also relied on two other provisions. First, they would submit that sections 7-lOA of the Representation of Peoples Act, 1951 lay down exhaustive provisions on disqualification, implying that all disqualifications must be made by law. Indeed, there is no quarrel with this position. In fact, it has been held by this Court in Shrikant v. Vasantrao, [2006] 2 SCC 682 that "it is not possible to add to or subtract from the disqualifications, either on the ground of convenience, or on the grounds of equity or logic or perceived legislative intention". However, as discussed earlier, disqualification and expulsion are two different concepts altogether, and recognizing the Parliament's power to expel under Article 105(3) does by no means amount to adding a new ground for disqualification.

148. The other provision that the Petitioners have reiied upon is Article H

\ 422 SUPREME COURT REPORTS [2007] I S.C.R.

A 327 of the Constitution. This article enables the Parliament, subject to the other provisions of the Constitution, to make provisions by law for "all other matters necessary for securing the due constitution of the H6u~e;;:-: They would also refer to Entry 74 of List I of the Seventh Schedule which confers upon the Parliament the competence to legislate on the power, privileges and immunities of the Houses of Parliament. The argument is that the Parliament B can only claim additional powers by making a law. However, we are unable to accept this contention, since Article I 05(3) itself provides the power to make a law defining powers and privileges and further the position that all the privileges of the House of Commons vest in the Parliament until such a law is passed. Article 327 pertains to the constitution of the House insofar c as election matters, etc. are concerned. It does not refer to privileges that the Parliament enjoys.

149 Thus, we find that the power of expulsion is not negated by any of the above constitutional or statutory provisions.

D (ii) Provisions relating to salary etc. and the right to a flXed term:

150. It was further argued by the Petitioners, that provisions in the constitution relating to salary and the term for which they serve in the House are constitutional rights of the members and the power of expulsion, E by terminating their membership violates these constitutional rights.

151. The relevant provisions in the constitution are Article 106 on the subject of salaries and Article 83(2) in relation to the duration of the Houses of Parliament.

F 152. The Petitioners have relied on these above constitutional provisions and submitted that an expulsion of a Member of Parliament would result in the violation of the above rights guaranteed to him. The claim of the other side is that the decision to expel does not violate these rights. Firstly, it has been argued that the article laying down the duration of the House does not guarantee a term for the member. Various circumstances have been pointed out under which the term held by a member can be much less than five years, regardless of what is stated in Article 83(2). Seeondly, it has been argued that Article l 06, whicll lays down prov~~iq1:1sJor--.the salary of the member, is dep~ndent :upQQ,~e person's ~e~b~'tsliip.,t is only as long as the person continues to be a member that he can draw the salary. When the membership terminates, the provisions of Article 106 become inapplicable.