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

... 1 RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 423 * . y

153. Similar arguments were made in the case of K. Anandan Nambiar A ( v. ChiefSecretary, State of Madras, AIR (1966) SC 657. In that case, certain members of Parliament were detained by the Government of Madras and one of the grounds on which they challenged their detention was the violation of their constitutional rights. In support of this contention, the Petitioners relied on various provisions relating to members and proceedings of the Parliament including Articles 79, 85, 86 and 100. They claimed that they B continued to exercise all the 'constitutional rights' that flow from membership unless the member is disqualified. The contention was that "if a Member of Parliament incurs a disqualification, he may cease to be such member, but if he continues to be. qualified to be a member, his constitutional rights cannot be taken away by any law or order". This Court rejected this c argument holding that:-

" .....they are not constitutional rights in the strict sense, and quite clearly, they are not fundamental rights at a/I" ~ (Emphasis supplied) D

154. Although this case involved detention and the arrest of the members of Parliament, which are matters relating to field distinct from that of the rights claimed in the cases at hand, we are of the view that the logic in the case applies equally to the present situation. In this case certain provisions regarding members and their functioning within the Parliament E w~re held not to create independent rights which could be given supremacy over a legal detention. Similarly, in the present case, where there is a lawful expulsion, the members cannot claim that the provisions relating to salaries and duration of the House create such rights for the members that would have supremacy over the power of expulsion of the House. - 1 F

155. With specific reference to the power of expulsion, a similar argument with respect to the duration of the Legislative Assembly of a State was rejected by the Madras High Court in the K Anbazhagan (supra). The High Court rightly held that such a provision could not negate the power of expulsion. It stated: G "Therefore, it cannot be said that merely because Article 172 ..__ provides for a period of five years to be the duration of the / -, Legislative Assembly each member must necessarily continue to be a member for five years irrespective of the other provisions of the Constitution". H

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

A 156. As far as the provision for the duration of the House is concerned, it simply states that the normal duration of a House is to be five years. It cannot be interpreted to mean that it guarantees to the members a term of five years. The Respondents have correctly pointed out that a member does not enjoy the full five-year term under various circumstances; for example, when he or she is elected mid-term, when the term of the House is cut short by dissolution, when the member stands disqualified or the seat is rendered vacant. We find that a correct view in this regard has been taken in K. Anbazhagan, in line with the view expressed by this Court in K. Anandan ... Nambiar. If the provisions mentioned by the petitioners were actually to create rights in respect of members, then each of the above situations would be liable to be challenged for their violation. This quite obviously is not what is intended by the Constitution. Expulsion is only an additional cause for the shortening of a term of a member.

157. Further, as far as the provision relating to the salary of the member is concerned, it is quite absurd to claim that because the Constitution makes D a provision for salaries, the power of the House to expel is negated since the result would be that the member would no longer be paid. Salaries are obviously dependent upon membership, and the continuation of membership is an independent matter altogether. The termination of membership can i- occur for a variety of reasons and this is at no point controlled by the fact E that salaries are required to be paid to a member.

158. Thus, in our view, the _above provisions do not negate the power of expulsion of the House, and there is no inconsistency between the .>' House's power of expulsion and the said provisions.

F (iii) The right of the constituency to be represented and the right to vote: ( .

159. The next contention of behalf of the Petitioners has been that in the democratic set-up adopted by India, every citizen has a right to vote and to be duly represented. It was argued that expelling a member who has been elected by the people would violate the democratic principles and the G constituency would go unrepresented in the Parliament. They submit that the right to vote ought to be treated as a fundamental right and that the power of expulsion violates various democratic principles. On the other hand, the learned Counsel for Union of India submitted that the right to be represented is not an absolute right, and that expulsion does not create a H bar for re-election.

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 425

- 160. We are unable to accept the contentions of the petitioners. In this regard, it is first important to note that the right to vote has been held to be only a statutory right, and not a constitutional or a fundamental right (see Shrikant V. Vasantrao, [2006) 2 sec 682 and Ku/dip Nayar V. Union of A

India, [2006] 7 SCC 1.

161. While it is true that the right to vote and be represented is integral B to our democratic process, it must be remembered that it is not an absolute right. There are .certain limitations to the right to vote and be represented. For example, a citizen cannot claim the right to vote and be represented by a person who is disqualified by law or the right to be represented by a candidate he votes for, even if he fails to win the election. Similarly, c expulsion is another such provision. Expulsion is related to the conduct of the member that lowers the dignity of the House, which may not have been necessarily known at the time of election. It is not a capricious exercise of the House, but an action to protect its dignity before the people of the country. This is also an integral aspect of our democratic set-up. In our view, D the power of expulsion is not contrary to a democratic process. It is rather part of the guarantee of a democratic process. Further, expulsion is not a decision by a single person. It is a decision taken by the representatives of the rest of the country. Finally, the power of expulsion does not bar a member from standing for re-election or the constituency from electing that member once again. E

I62. Thus, we hold that the power of expulsion does not violate the right of the constituency or any other democratic principles.

(iv) Fundamental rights of the member: F

163. Lastly, it has been contended by the Petitioners that the power of expulsion violates the fundamental rights of the member. It was argued that the power of expulsion violates Article 19( I )(g), which guarantees the right to 'practise any profession, or to carry on any occupation trade of business'. It was submitted that this right can only be curtailed by a law in G the interest of general public and that producing the same result by a resolution of the House is impliedly barred. It was also contended that Article 21, which includes the right to livelihood was violated, since it can only be restricted by a 'procedure established by law'. H

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

A 164. We are not impressed with any of these conteµtions of the petitioners. Even if it were to be assumed these rights apply, we do not - believe that they could prevent reading the power of expulsion within Article 105(3).

165. First, it is to be remembered that 105(3) is itself a constitutional B provision· and it is necessary that we must construe the provisions in such a way that a conflict with other provisions is avoided. We are of the view that where there is a specific constitutional provision as may have the effect of curtailing these fundamental rights if found applicable, there is no need for a law to be passed in terms of Article 19(6). For example, Article 102 c relating to disqualifications provides that members who are of unsound mind or who are undischarged insolvents as declared by competent courts are disqualified. These grounds are not mentioned in the Representation of Peoples Act, 1951. Though this provision would have the effect of curtailing the rights under Article 19(1 )(g), we doubt that it can ever be contended that a specific law made in public interest is required. Similarly, if Article 105(3) D provides for the power of expulsion (though not so expressly mentioned), it cannot be said that a specific law in public interest is required. Simply ' because the Parliament is given the power to make law on this subject is no reason to say that a law has to be mandatorily passed, when the Constitution itself provides that all the powers of the House of Commons vest until such E a law is made. Thus, we find that Article 19(1 )(g) cannot prevent the reading of power of expulsion under Article l 05(3 ).

166. Finally, as far as Article 21 is concerned, it was submitted that the 'procedure established by law' includes the rules relating to the Privileges F Committee, etc., wnich were not followed and thus the right was violated. In our view, this does not prevent the reading of the power to expel in Article l 05(3). It is not. possible to say that because a 'procedure established by law' is required, it will prevent the power of expulsion altogether and that every act of expulsion will be contrary to the procedure established by law. Whether such a claim is maintainable upon specific facts of each case is G something that will have to be considered when the question of judicial review is taken up. At this stage, however, a blanket ban on the power of expulsion based on Article 21 cannot be read in the Constitutional provisions. This is an issue that may have a bearing on the legality of the ~rder. But, it cannot negate the power of expulsion. H

t RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 427

167. In the light of the above discussion, we hold that the power of A expulsion does not come into conflict with any of the constitutional provisions and thus cannot be negated on this basis.

168. Let us now consider the argument in relation to the power of self composition of House of Commons. B Power of self composition

169. The history of England is replete with numerous instances wherein the power of expulsion was exercised by the House of Commons. It has been strenuously argued by Mr. Jethmalani and Mr. Lekhi that all the powers and privileges of the House of Commons have not been inherited by the c legislative organ under the Constitution of India and power of expulsion is one such power. To consider this contention, it is necessary to find out the true nature and character of the power of expulsion claimed by the House of Commons. D

170. It is true that certain privileges of the House of Commons are not available to any legislative body in India, whether at the Union level or in the States, even under clauses (3) of Articles 105 or 194 of the Constitution.

171. The case of the petitioners is that the House of Commons derives the power to expel its members solely from its privilege of regulating its composition, and from no other source. In other words, they submit that the power of expulsion has always been claimed and exercised by the House of Commons as one that stems from the power of the House of Commons to determine its own composition including the fitness of elected members to remain members. Power of expulsion is a facet of and is part & parcel of this basic privilege of the House of Commons to provide for and regulate its own Constitution. The House of Commons has always claimed an unrestricted and un-canalized power of expelling anyone of its members for historical reasons and as an adjunct of the ancient and peculiar privilege of determining . its own composition. It has resorted to this power of expulsion in numerous cases which have not the remotest relevance to either a breach of privilege or to the commission of contempt or as a measure of punishment for ordinary crimes.

172. The argument is that since the Parliament of India does not have the power to provide for or regulate its own constitution, power of expulsion H

428 SUPREME COURT REPORTS [2007] l S.C.R. + A cannot be found conferred by Article 105 on the Houses of Parliament. In this respect, the petitioners would place reliance on the conclusion, reached, .P- with reference to May's Parliamentary Practice [16th ed., p.175], in the UP Assembly Case (at page 448) to the effect that the legislature in India cannot claim privilege of the House of Commons "in regard to its own Constitution" which is "expressed in three ways, first by the order of new writs to fill B 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".

173. That the legislatures established under the Constitution of India C do not have the power of self composition cannot be a subject matter of controversy. It was clearly so observed in UP Assembly Case.

174. The Legislative organs in India, both Parliament and the State legislatures, are completely subservient to, and controlled by, the written provisions of the Constitution of India in regard to the composition and the D regulation of the membership thereof and cannot claim the privilege of providing for or regulating their own constitution. This can be demonstrated by even a cursory look at the various provisions of the Constitution which we may presently do.

E I 75. India is an indestructible Union of destructible units. Article 3 and Article 4 of the Constitution together empower Parliament to make laws to form a new State by separation of the territory from any State or by uniting two or more States or parts of States .or by uniting any territory to a part of any State, and in so doing to increase or diminish the area of any State F and to alter its boundaries and further to give effect through measures to provide for the representation in the Legislatures of State or States affected by such law by varying the composition, the numerical strength thereof or even affecting the very existence of a State Legislature.

I 76. Article 79 provides for the Constitution of Parliament i.e. the G Union Legislature which consists of the President and two Houses known respectively as the Council of States and the House of the People. Article 8 I deals with the composition of the House of the People and inter alia provides for the maximum numerical strength (not more than five hundred and thirty members from the States and not more than twenty members to H represent the Union Territories), the manner of election (direct) and the

t RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 429

... _; 1 nature of constituencies in the States (territorial), allotment thereof to the different States on the basis of ratio between the number of seats and the population of the State, with Article 82 taking care of the readjustment of A

allocation of seats and the division of each State into territorial constituencies after each census. Article 83 provides for the duration of each House of Parliament, making the council of States a permanent body with one-third of the members thereof retiring on the expiration of every second year, thereby B giving to each of them tenure of six years. It declares the term of the House of the People to be five years, unless sooner dissolved, extendable for a period not exceeding one year at a time in the event of proclamation of emergency. c

177. Article 84 prescribes the qualifications for membership of Parliament, spelling out two main qualifications, leaving the discretion to prescribe the others by law to the Parliament. The qualifications necessary as per the constitutional provisions include the citizenship oflndia and a minimum age.

178. Article 102 prescribes certain disqualifications which operate as disqualifications at the time of Election or may become supervening qualifications subsequent to the election. As per the mandate in this constitutional provision a person is disqualified for being chosen as or for being a member of Parliament ifhe holds an office of profit (other than such offices as are declared by Parliament to be exempt from such consequences); E if he is of unsound mind and so declared by a competent court; if he is an undischarged insolvent; if he is not a citizen of India or has voluntarily acquired citizenship of a foreign state or is under any acknowledgement of

- ..., . allegiance or adherence to a foreign state and if he is so disqualified by or under any law made by parliament. The question of disqualification is decided on the basis of opinion of the Election Commission by the President, in terms of the power vested in him by Article 103. Article 102(2) also refers F

to disqualification as a result of enforcement of the provisions of the Tenth Schedule on account of defection.

179. Article 101 makes provision on the subject of vacation of seats G in the Houses of Parliament. A person cannot be a member of both Houses at the same time and if chosen as a member of both Houses he is required to vacate his seat in one or the other House. Similarly a person cannot be a member both of the Parliament and of a House of the Legislature of a State. If so elected to both the said bodies, he is required to resign one seat and H

430 SUPREME COURT REPORTS [2007] l S.C.R. + A in case of default at the expiration of period specified in the Rules made by the President, the seat in Parliament is rendered vacant. Article l 0 l (4) empowers the House to declare the seat of a member vacant if such member remains absent from all meetings of the House for a period of sixty days without permission of the House. Article 101(3) declares that on a member being found disqualified under Article l 02, his seat in the Parliament B becomes vacant. In addition to these various modes of vacation of seats, resignation of the seat by writing under the hand of the member results in the seat becoming vacant upon acceptance of the resignation.

180. Article 99 requires every Member of Parliament to make and c subscribe the oath or affirmation prescribed in the Third Schedule, before taking the seat. Articlel04 prescribes a penalty for sitting and voting in the Parliament before making oath or affirmation or when not qualified or in the event of being rendered disqualified.

181. Article 330 and Article 331 make special provision for reservation of seats in the House of the People for the Scheduled Castes & Scheduled Tribes and the Anglo Indian community.

182. Article 85 vests in the President the power to summon each House of Parlia:inent for periodical sessions, the period between two sittings whereo( Cf!PJ!gt exceed six months. The said Article also vests in the President the authority to prorogue either House or dissolve the House of the People.

183. The above mentioned are some of the provisions of the Constitution F that collectively show that the privilege of regulating own composition is not available to the Parliament. r ,.._

184. Part XV of the Constitution of India makes detailed provisions on the subject of Elections to the Parliament and State Legislatures. Article 326 makes adult suffrage as the norm for these elections. The mandate of Article G 324 is that it is the Election Commission that (!Ontrols the superintendence, direction and control of elections. There is no power in any legislature to fill its own vacancies or to issue writs for the holding of by-elections etc.

185. Articles 168 and 169 provide for the constitution of the State H Legislatures, with Parliament being vested with power to substantially alter

+ RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 431

..>- ) the very composition of the State Legislatures by providing procedure following which bicameral Legislature of a State may be altered to a unicameral one, or vice versa. A11icle 170 and Article 171 deal with the composition of the Legislative Assemblies and the Legislative Councils respectively in the States. The maximum and the minimum number of members are prescribed by law and the ratio between the population of each constituency within the State with the number of seats allotted to it being also regulated by constitutional provisions, even the matter of re-adjustment of the territorial constituencies being controlled by such authority (Delimitation Commission) and in such manner as Parliament is to determine by law. The normal tenure of five years for a State Legislative Assembly is prescribed by Article 172. The duration of the State Assembly and the mode and manner of its dissolution are matters controlled by constitutional prescriptions. Articles 173 and 191 prescribe the qualifications and disqualifications for the membership of the State Legislature; Article 174 creates a constitutional obligation on the State Legislatures to meet at least once within a space of six months, the power to summon the State legislature having been given not to the House(s) but to the Governor.

186. Articles 327 and 328 empower the Parliament and the State Legislatures, in that order, to make laws in connection with the preparation of the electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of the State Legislatures. Article E 333 to 334 provide for the reservation of seats for the Scheduled Castes and other communities in the State Legislatures again dealing with the subject of composition and the character of the membership thereof.

187. Article 329 does bar the jurisdiction of courts but only in matters of delimitation of constituencies or allotment of seats thereto and reserves the jurisdiction to deal with election disputes in favour of the authority prescribed by law, which incidentally is High Court as per the Representation of People Act, 1951.

1$8. It must, therefore, be held as beyond the pale of all doubts that neither Parliament nor State Legislatures in India can assert power to provide for or regulate their own constitution in the manner claimed by the House of Commons in United Kingdom. Having regard to the elaborate provision made elsewhere in the Constitution, this power cannot be claimed even, or least of all, through the channel of Articles 105 (3) or 2~4 (3). H

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

A 189. The question that immediately arises is as to whether the power of expulsion is referable exclusively, or solely, to the power of the House of Commons to determine its own composition including the fitness of elected members to remain members.

190. The Union of India has argued that there is no authority for the proposition that the House of Commons derived its power to expel a member only from its privilege to provide for its own Constitution or composition. It is the stand taken by the learned Counsel that at the highest it may be stated that the expulsion of a member by the House of Commons can also be a manifestation of its power to control its own composition in addition to the privilege to control its own proceedings including disciplining a member in a fit case b)_' his expulsion.

191. On the other hand, seeking support from commentaries on Constitutional law of England, the petitioners point out that the subject of expulsion is dealt with by all authorities as inextricably linked with the determination of the legal qualifications or disqualifications for the membership of the House of Commons, that is the peculiar right to judge upon the fitness or unfitness of anyone of its members to continue as a legislator. This power, they submit, is essentially derived from the privilege to provide for its own constitution and from no other source. E

192. The petitioners submit that a holistic reading of the works of English and Commonwealth authors reveals that all of them treat expulsion solely as an expression of the 'Privilege of Regulating Due Composition of the House', and not as part of privilege of regulating own proceedings or as an independent penal power for punishing contempt. In fact, they submit, the right of the House of Commons to regulate its own proceedings was nothing more than a right of exclusive cognizance of matters concerning the House to the exclusion of the Courts' jurisdiction. It was merely a jurisdictional bar, and had nothing to do with the source of power that could be legitimately exercised in Parliament. The argument is that if the power to expel does not reside in the House of Commons independent of the power to constitute itself, it would naturally not be available to the Indian Legislatures.

193. Mr. Andhyarujina and Mr. Subramanian, however, submitted that the privilege of the House of Commons "to provide for its own proper

--- -f RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 433

~ constitution" has a meaning with regard to its privileges in the matter of A l elections to it, as explained by May in three ways as noticed by this Court in UP Assembly Case as mentioned above and which include "detennining the qualifications of its members in cases of doubt". Referring to May's 20th ed. Chapter 2 on elections p. 34 and Chapter 3 on Qualifications p. 520, it is argued that this privilege is essentially related to electoral matters including disqualifications to be elected. The "qualifications" referred to are B the qualifications of a member elected but whom the House considers as not ..,., qualified to stand for elections and sit in Parliament e.g. insolvents, minor, lunatics, aliens, those charged with treason, peers etc. The House has a right to detennine the qualifications "in case of doubt" which clearly shows that this statement does not mean unfitness to be a member by conduct. c

194. The debate on the subject took the learned counsel to the interpretation and exposition of law of Parliament as is found in the maxim lex et Consuetudo Parliamenti as the very existence of a parliamentary privilege is a substantive issue of parliamentary law and not a question of mere procedure and practice. )'

195. The petitioners seek to draw strength from the observations of ,... this Court in UP Assembly Case referring to the privilege of the House of Commons in regard to its own constitution "expressed in three ways" that cannot be claimed by the Indian Legislature. In this context, however, questions have been raised as to whether the privilege in regard to its own constitution is expressed by the Commons only in the three ways mentioned above or the three ways enumerated are merely illustrative of the various other ways in which the House of Commons might have expressed, claimed

- ' or enjoyed the said privilege. Reference has been made to a distinct fourth way of expression mentioned by Anson (in "Law and Custom of the Constitution") with counter argument that the said fourth way is a mere extension of the three ways and is really a part thereof and not independent F

of the same.

196. Anson in 'The Law and Custom of the Constitution' [Fifth edition G (1922), Volume I, Chapter IV] deals with the privileges of the House of Commons, dividing them broadly into two classes; namely (i) privileges which are specifically asserted and demanded of the Crown at the '"1 commencement of every Parliament and (ii) the undoubted privileges of the House of Commons regarding which no fonnal demand or request is made H

434 SUPREME COURT REPORTS [2007] 1 S.C.R -t

A by the Speaker to the Crown and which nevertheless are regularly asserted and enforced by the House. The instances of the first category include the privileges of free speech, of access to the Crown and of having the most favourable construction put upon all their proceedings. The instances of the second category include the fundamental privilege claimed by the House of Commons to provide for and regulate its own Constitution. B

197. At page 154,,Anson makes the following observations:- ·:.·

,;..- "But there are other privileges not specifically mentioned on this occasion though regularly asserted and enforced by the House. c These are the right to provide for the due constitution of its own body, the right to regulate its own proceedings, and the right to enforce its privilege. by fine or imprisonment or in the case of its own Members by expulsion."

198. While dealing with the privilege of the House of Commons to D provide for and regulate its own Constitution, Anson sub-divides the mode and manner of its exercise into four parts, the first three of which correspond "( to what is expounded by May (20th Edition). He deals in great detail (5th ed., p. 182) with expulsion on account of unfitness to serve as the fourth sub-heading under the main heading of 'Right to provide for its proper E Constitution' stating as under:-

"Unfitness to serve, a cause of expulsion, Case may arise in which a member of the House, without having incurred any disqualification recognised by law, has so conducted himself as to be an unfit member of a legislative assembly. For instance, misdemeanour is F not a disqualification by law though it may be a disqualification in (''

fact, and the House of Commons is then compelled to rid itself of such a member by the process of expulsion. But expulsion, although it vacates the seat of the expelled member, does not create a disqualification; and if the constituency does not agree with the G House as to the unfitness of the member expelled, they can re-elect him. If the House and the constituency differ irreconcilably as to the fitness of the person expelled, expulsion and re-election might alternate throughout the continuance of a Parliament." t

H (Emphasis supplied)

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 435 'l

199. Under the same sub-heading Anson also deals in detail with the cases of expulsion of John Wilkes (1769) and Walpole (1712). The case of Wilkes is cited to bring out the fact that expulsion did not have the effect of creating a disqualification. In spite of repeated expulsions by the House of Commons, which even proceeded to declare his election void thereby seeking to arbitrarily create a new disability depending on its own opinion of his unfitness to be a member of this body, Wilkes was elected to serve in the new Parliament and "took his seat without question".

200. From the passage extracted above, the petitioner wants to infer that when expulsion is resorted to by the House of Commons to rid itself of a member who may be fully qualified but is found to be unfit to continue c as a member of the House, it is so done in exercise of the privilege of the Commons to constitute itself. The petitioner has stressed that such action can only be taken on a member having been convicted for misdemeanor.

201. But then, one cannot lose sight of the words "for instance" that D )' precede the particular illustration of exercise of power of expulsion by the House of Commons in Anson. Clearly, what Anson seeks to convey is only that it is within the power_ of the House of Commons to get rid of such member as is considered to be unfit to continue to be its member on any ground other than of conviction for misdemeanor. E

202. It is the argument of the Petitioners that Anson treats expulsion exclusively as a facet of the privilege of the House of determining its own composition, and under no other head. Anson explains (5th ed., p. 188) the nature and character of this power, under the heading 'Power of inflicting punishment for breach of Privilege' in the following words:- F "But expulsion is a matter which concerns the House itself and its composition, and amounts to no more than an expression of opinion that the person expelled, is unfit to be a member of the House of Commons. The imposition of a fine would be an idle process unless backed by the power of commitment. It is, then the G right of commitment which becomes, in the words of 'Sir E. May, 'the keystone of Parliamentary privilege'. It remains to consider 1 how it is exercised and by what right."

203. What Anson seems to indicate here is that expulsion is a sanction H

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

A that goes beyond mere imposition of fine backed by the power of commitment in case of default and also that expulsion undoubtedly affects the composition of the House. He does not state that expulsion only concerns the composition of the House. He is talking of possible sanctions for gross misdemeanour against members and not the qualifications requisite to become a member. Further, Anson mentions the details of the privilege of the right to constitute B itself (5th ed., p. 177). He states, under a separate heading "Right to provide for its proper Constitution", as follows:-

"One of these privileges is the right to provide for the proper constitution of the body of which it consists by issue of writs when c vacancies occur during the existence of a parliament, by enforcing disqualification for sitting in parliament, and until 1868 by determining disputed elections."

204. Noticeably, in this context, Anson would not mention expulsion as one of the facets of the power of the House of Commons to constitute itself.

205. At the same time, one cannot lose sight of the fact that the power of inflicting punishment for breach of privilege has been separately dealt with even by Anson (5th ed., p. 177 onwards). The punishments which are awarded to members or non-members are dealt with by Anson under separate headings such as "admonition", "reprimand", "commitment", "fine", and "expulsion". The discussion under the last mentioned item in Anson starts with the following passage (5th ed., p. 187): -

F "In the case of its own members the House has a stronger mode of expressing its displeasure. It can by resolution expel a member."

206. The resolution of expulsion as an expression of displeasure takes it beyond the realm of power of self constitution. These paragraphs unmistakably show that expulsion is not considered by Anson as exclusively arising from the privilege of the House to provide for its own Constitution.

207. Hals bury in his "Laws of England" deals with the subject of the I.

"Privileges peculiar to the House of Commons". The Petitioners argue that the power of expulsion is dealt with directly as a facet of the privilege of determining due composition of the House by Halsbury as well. This

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 437

l conclusion, they submit, is fortified by the fact that Halsbury deals with A 'Penal Jurisdiction of the House' distinctly in paragraphs 909-913. While express reference is made to reprimand, admonition, committal etc, expulsion is conspicuous by its absence. Arguing that the privilege of the House of Commons to provide for its own Constitution is "in addition" to possessing complete control over its proceedings including punishing its own members, reliance is placed, on the other hand, by Mr. Andhyarujina, learned counsel B for Union of India on the following observations in Halsbury's Law of England (Fourth Edition, Vol. 34, Para 1019):-

"1019. Privilege of the House of Commons in relation to its constitution. In addition to possessing a complete control over the regulation of its own proceedings and the conduct of its members, c the House of Commons claims the exclusive right of providing, as it may deem fit, for its own proper constitution."

208. The petitioners, in reply, submit that no such significance can be attached to the words "In addition". They argue that the paragraph, when viewed in the context of the other paragraphs under Chapter 2 namely 'Privileges etc claimed', it becomes clear that the opening words 'In addition to' make no addition to the Respondent's case. Paragraph 1007 deals with the right of the House of Commons to regulate its own proceedings as 'Exclusive cognizance of proceedings'. Bradlaugh also relied upon by the Union of India as part of this argument is cited in this part. The scope of this privilege is explained in the words, "This claim ir. volves the exclusion of review by any court or other external body of the application of the procedure and practice of either House to the business before it".

209. The petitioners submit that the right of the House to regulate its own proceedings, of which expulsion is being claimed an incident, is nothing more than a jurisdictional bar, and not a positive source of any power. It is in this context that Para 1019' opens with the words, "in addition to possessing complete control over the regulation cf its proceedings and the conduct of its members". It refers only to the exclusive jurisdiction exercised by the House of Commons to the exclusion of the Courts. These words, according to the petitioners, in no manner locate a new source of expulsion power in the privilege of regulating its internal affairs. It is the argument of .., the petitioners that Expulsion is explicitly dealt with in paragraph I026, which describes expulsion as being a facet exclusively of the privilege of detennining due composition of the House. H

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

A 210. Para 1019 ofHalsbury's Law of England quoted above corresponds to Para 905 in its third edition of Volume 28 (Part 7, Section 2), also under ' I

the heading "Privileges peculiar to the House of Commons". As is seen in that edition, after making particular reference to the claim of the House of Commons-~~Jhl!;,t1X:G~"1sive-right of providing as it deems fit "for its own proper constitutio.~_'. 11 J-lalsbury would mention the "Power of expulsion" in B the succeeding Para, as is noticeable in the following extract:-

"906. Power of expulsion. Although the House of Commons has delegated its right to be the judge in controverted elections, it retains its right to decide upon the qualifications of any of its c members to sit and vote in Parliament. I )- If in the opinion of the House, therefore, a member has conducted himself in a manner which renders him unfit to serve as a member of Parliament, he may be expelled from the House, but, unless the ) '· /

cause of his expulsion by the House constitutes in itself a ~ D disqualification to sit and vote in the House of Commons; it is open 1 to his Constituency to re-elect him.

The expulsion of a member from the House of Commons is effected by means of a resolution, submitted to the House by means of a E motion upon which the question is proposed from the chair in the usual way."

211. The petitioners seek to argue that Halsbury, in a later part in its third edition of Volume 28 (Part 7, section 3), dealing with the "Penal Jurisdiction of the two Houses" in matters of "Breaches of Privileges and F Contempts", made express mention of the sanctions that included reprimand, admonition and the power to commit to imprisonment for contempt but omitted reference to power of expulsion. The subpjssion made. is that this omission renders do_u!!!fµL the plea that expulsion from the House of Commons is also within !!!.Penaljurisdiction and is imposed as a measure of punishment for contempt.

212. But then, it is pertinent to mention here that Para 906 of the third edition has been omitted in the fourth edition. The subject of "Privilege of the House of Commons in relation to its constitution" is followed by narration in separate Para (1020) on the subject of"Power to fill vacant seat

t RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 439

while-the House of Commons is sitting" and then by another Para (1021) on A .... .., the subject of "Power to fill vacant seat during prorogation or adjournment" ....... which appeared in earlier edition as Para numbers 907 & 908 respectively .

213. The subject of the power of expulsion claimed by the House of Commons stands shifte~ in the Fourth edition to a later sub-part (3) under "' the heading "Jurisdiction of Parliament" mainly dealing with the Penal B jurisdiction, and after narrating the position generally on the subject of .;: "Proceedings against offenders" and then referring to the "Power to commit", ~· "Period of imprisonment" and two other sanctions namely "Reprimand and admonition", deals specifically with the subject of power of expulsion of the House of Commons in Para 1026, which reads as under:- c "1026. House of Commons' Power of expulsion. Although the House of Commons has delegated its right to be the judge in controverted elections (see para 1019 note 2 ante), it retains its right to decide upon the qualifications of any of its members to sit and vote in Parliament. D

..., Ifin the opinion of the House a member has conducted himself ... in a manner which renders him unfit to serv,e.::as,~ .1.nember of Parliament, he may be expelled, but, unless the cause of his expulsion by the House constitutes in itself a disqualification to sit E and vote in the House, he remains capable of re-election."

214. Noticeably, the contents of Para 1026 of the Fourth Edition are virtually the same as were reflected in Para 906 of the Third Edition, the last sub-Para of the latter (relating to the means adopted for effecting expulsion) F being one major omission. What is significant, however, is the shifting of -.. the entire subject from close proximity to the privilege of the House of Commons in relation to its Constitution, (as was the position in earlier edition) to the mention of power of expulsion now amongst the various sanctions claimed by the said legislature as part of its penal jurisdiction. The footnotes of Para 1026 borrow from the elaboration made through G footnotes relatable to erstwhile Para 906 and clarify that the jurisdiction formerly exercised by the House of Commons in controverted elections has been transferred since 1868 to the Courts of law and further that, as ,, mentioned in May's Parliamentary Practice, members have been expelled ' from the House of Commons upon various grounds, such as being rebels, H

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

A or having been guilty of forgery, perjury, frauds and breaches of trusts, misappropriation of public money, corruption in the administration of justice or in public offices or in the execution of their duties as members of the House, or of contempts and other offences against the House itself.

215. Undoubtedly, the words "In addition" with which Para 1019 opens do relate to the House of Commons possessing "a complete control over the regulation of its own proceedings" but that is not the end of the matter. The words are significant also in the context of the second limb of the opening clause of the said Para, that is to say the words "and the conduct of its members". We are therefore, unable to accept the contention of the petitioners that Halsbury narrates the power of expulsion as a power originating from the power of the House of Commons to regulate its own proceedings only. Rather, the new arrangement in the Fourth edition shows that Halsbury treats the power of expulsion more as a power arising out of the penal jurisdiction than from the power of self composition.

216. The "Constitutional History of England" by Professor F.W. Maitland (first edition 1908 - reprinted 1941 ), based on his lectures, is divided chronologically. In the last and most contemporary 'Period V' titled "Sketch of Public Law at the Present Day (1887-8)'', he deals with the House of Commons in Part III. It has been opined by him that the earlier exercise E of privileges from the 14th to the 18th century may have fallen into utter desuetude and indeed may furnish only an example of an arbitrary and sometimes oppressive exercise of uncanalised power by the House. After mentioning the membership and the qualification of the voters as also principles and the n:ode of election and dealing with the power of determining p disputed elections by the House of Commons, one of the facets of the privilege of the House of Commons to provide for and regulate its own r Constitution, in the context of the vacation of seats in the House by incurring disqualifications, he refers in sub-Para (6) to the power of expulsion. His words may be extracted:-

G "The House has an undoubted power of expelling a member, and the law does not attempt to define the cases in which it may be used. If the House voted the expulsion of A.B. on the ground that he was ugly, no court could give A.B. any relief. The House's own discretion is the only limit to this power. Probably it would not be ' ' H exercised now-a-days, unless the member was charged with crime

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 441

or with some very gross miss-behaviour falling short of crime, and in general the House would wait until he had been tried and convicted by a court of law. In 1856 a member who had been indicted for fraud and who had fled from the accusation was expelled."

217. Though Maitland also discusses expulsion along with the other constituent elements of the House's Privilege of determining its own composition, we are unable to accept the argument of the Petitioners that this exposition by Professor Maitland shows that the power of expulsion was claimed by the House of Commons it being only a part and parcel of its basic privilege to control its own composition. During the course of lectures, which is the format used here, Maitland referred to expulsion alongside the privilege of the House of Commons to control its own composition. But his narration reflects it was the penal jurisdiction which was being highlighted in the context of sanction of expulsion of members for misconduct. D

218. Reference has also been made to the "Constitutional Law" (Seventh edition) by Professors Wade and Phillips. On the subject of the privileges of the House of Commons (Chapter I 0), while elaborating the undoubted privilege to control its own proceedings and to provide for its own proper Constitution, reference is made to the power of the House to determine the E disputed elections also indicating it to be inclusive of the power of expulsion. The authors write as under:-

"Expulsion:- The House of Commons still retains the right to pronounce upon legal qualifications for membership, and to declare F a seat vacant on such ground. The House may, however, as in the case of Mitchel [( 187 5), l.R. 9C.L. 217] refer such a question to the Courts. The House of Commons cannot, of course, create disqualifications unrecognised by law, but it may expel any member who conducts himself in a manner unfit for membership. A constituency may re-elect a member so expelled, and there might, G as in the case of John Wilkes, take place a series of expulsions and re-elections. Expulsion is the only method open to the House of dealing with a member convicted of a misdemeanour."

219. It has been argued by the petitioners that Professors Wade and H

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

A Phillips plainly treat expulsion as inextricably linked with privilege of determining own composition or as an inevitable consequence, where the House takes the view that a member has conducted himself in such a manner as to be unworthy of membership of the legislature, an act not explainable as expulsion by way of a measure of punishment for the offence of contempt.

220. We are unable to agree. Wade & Phillips have treated the subject of expulsion from different angles, not necessarily leading to the conclusion that this power would always be traceable to the power of self composition alone. Expulsion on account of conviction for misdeamonour refers to disciplinary control and therefore part of penal jurisdiction which undoubtedly is distinct from the power of the House to provide for its own constitution.

221. Professors Keir and Lawson in their work "Cases in Constitutional Law" (fifth edition), while dealing with cases of Parliamentary privileges (page 263) mention first the exclusive jurisdiction over all questions which rise within the walls of the House except perhaps in cases of felony, referring in this \;Ontext to case of Bradlaugh, and then to the personal privileges (freedom of debate, immunity from civil arrest, etc.) which attach to the 'I' members of Parliament, and lastly the punitive power for contempt indicated in the following words at page 268:- E "(iii) The power of executing decisions in matters of privilege by committing members of Parliament, or any other individuals, to imprisonment for contempt of the House. This is exemplified in the case of the Sheriff of Middlesex." F

222. The petitioners seek to point out that expulsion of a member is not included in the penal powers of the House of Commons. To our mind, default in this regard by the author .does not lead to the conclusion that expulsion was not one of the sanctions available against a member to the House as part of its disciplinary control in as much as other authorities on the subject demonstrate it to be so.

223. "Constitutional Law" by E.W. Ridges (Eighth edition, p.65), as part of the discourse on the rights exercisable by the House of Commons as flowing from its basic privilege of providing for its due composition sets out the classification as under:-

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 443

• ~ . ''The Right to provide for its Due Composition. A This comprises:

(a) The right of the Speaker to secure the issue of a new writ on a vacancy occurring during the existence of a Parliament either by operation of some disqualification or on the decision of a member B elected in more than one place which seat he will accept. If in session, the writ is issued in accordance with the order of the House. If not in session, the procedure is regulated by certain statutes.;

(b) The right to determine questions as to the legal qualifications c of its own members, as in Smith 0 Brien's case (1849), 0' Donovan Rossa's case (1870), Mitchel's case (1875), Michael Davitt's case (1882) andAA Lynch's Case (1903), these persons being disqualified as undergoing sentence in consequence of conviction for felony or treason. D In Mitchel's Case the House declared the seat vacant, but on his being elected a second time they allowed the courts to detennine the question, and it was held that the votes given to Mitchel were thrown away and his opponent at the election duly elected in consequence. In Michael Davitt's case the House resolved that E the election was void, and a new writ was accordingly issued.

( c) The right to expel a member although subject to no legal disqualification. So, in 1621, Sir R. Floyd was expelled merely because he was a holder of the monopoly of engrossing wills. Thus F a member guilty of misdemeanour does not forfeit his seat, but may be expelled, thus vacating his seat. Or the House may itself decide that a member's acts merit expulsion, as in the case of Sir R. Steele's pamphlet, The Crisis, in 1714, and of Wilkes' North Briton (No. 45) in 1763. In Wilkes' Case (1769), Wilkes having been expelled and re-elected, the House passed a resolution declaring his G election void, and the member next on the poll duly returned. In .. 1782 the House declared this resolution void, as being subversive of the rights of the electors, and the proceedings in connection with the election were expunged from the journals. The proper H

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

A course in such a case would therefore be for the House to expel the member a second time, if so disposed. In Upper Canada Mr. ...... Mackenzie was thus four House times expelled in the Parliament from 1832. In October, 1947, the House expelled Mr. Garry Allighan, the member for Gravesend, after a committee of privileges had declared him to be guilty of gross contempt of the House in B publishing scandalous charges against other members, such charges being, to his knowledge, unfounded and untrue. At the same time the House also reprimanded Mr. Evenlyn Walkden, the member for Doncaster, on whose conduct a committee of privileges had reported adversely. The House declared him guilty of dishonourable conduct c in having disclosed to a newspaper infonnation that had come to ~- him at a private and confidential party meeting. and

(d) Fonnerly the House claimed from the reign of Elizabeth and exercised the right to determine questions of disputed election, ......... " D

224. It is clear from the above extract that E.W. Ridges, though referring to the power of expulsion under the heading "The Right to Provide for its Due Composition", does not restrict it as a power sourced from the right to provide for its own composition but refers at length to cases where the E power of expulsion was used by the House of Commons in cases of criminal conduct, gross misdemeanour and even in matters of contempt. We are therefore unable to subscribe to the inference that the power of expulsion according to Ridges is traceable only to the privilege of self composition.

225. Indeed, as pointed out by the Editor Sir Barnett Cocks (also a F fonner Clerk of the House of Commons) in the preface to the 18th Edition (l 971) of May in Parliamentary Practice, this work would deal with the subject under various headings including 'Elections', 'Disqualification for Membership of Either House' etc. leading to overlapping. Be that as it may, while discussing the subject of disql!alification for the membership of the G House of Commons in Chapter III, it has been mentioned that a person convicted of a misdemeanour is not thereby disqualified for election or for sitting and voting, but when a member is so convicted, the House might decide to expel him, but such expulsion does not in itself create a disability or prevent a constituency from re-electing the expelled member. After having referred to this aspect of the expulsion, the editor would make a cross- H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.J 445

reference for further discussion on the subject at page 130 included in A Chapter IX of the work which pertains to the penal jurisdiction of the House of Parliament and their powers to inflict punishment for contempt.

226. It has been argued by the learned Counsel for Union of India that the exposition of law by May shows that the power of expulsion was not sourced only from the power of the House of Commons to provide for its B own composition but also out of its penal jurisdiction dealing with breaches of privileges and contempt. He would refer in this context to observations at page 127 that in cases of contempt committed in the House of Commons by its members, the penalties of suspension from the House and expulsion were also available and in some cases they had been inflicted cumulatively. c

227. The exposition by May in Chapter 8 titled "Other privileges claimed for the Commons" (20th Edn.) under the heading "Privilege of the House of Commons with respect to its own constitution", according to the petitioners, treated expulsion as an example of the power of the House of D Commons to regulate its own constitution, relatable to the matters of 7 disqualification for membership. Though he would deal with the subject of expulsion at length with other punitive powers of the House, in as much as the results are equally grave and adverse to a sitting member, the petitioners argue that, May would categorically explain that expulsion is neither disciplinary nor punitive but purely a remedial measure intended to rid the E house of persons who in its opinion are unfit for its membership.

228. The petitioners refer to the testimony given by Sir Barnett Cocks during inquiry before a Committee of the House of Commons. He had been specially called by the Committee Of Privileges of the House of Commons F in the case of Rt. Hon. Quintin Hogg, Lord President of the Council and Secretary of State for Education and Science and examined about the essence and the real nature of this parliamentary Privilege. The Report dated 16th June 1964 of the Committee indicates that when questioned by the Attorney General as to the nature of power exercised by the House of Commons treating the behaviour of As gill as either a contempt of the House G or a breach of privilege he agreed that the House of Commons having c l complete control over its own membership was merely exercising its said power. He referred to Erskine May wherein it is illustrated as one of the privileges of the House to control its own membership and to expel members who are unworthy of membership, to control its own composition. H

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

A 229. When the Chairman Mr. Salwyn Llyod, referred to case of Garry Allignan's and asked for clarity as to whether. there could be a situation of expulsion simply for disreputable conduct having nothing to do with privilege or contempt but because the House regarded one of its members as unfit to sit in it, Sir Barnett Cocks opined, "I think a Member can be expelled for conduct which need not be related to one of three or four B existing Privileges'', this in answer to query from Sir Harold Wilson wherein he had mentioned other Privileges, one being the power to determine its own membership.

230. The Petitioners have submitted that the above mentioned opinion c rendered by Sir Barnett Cocks in House of Commons also demonstrates that he would also regard the power of expulsion essentially as another facet of the basic parliamentary privilege of the House of Commons to provide for its own constitution and determine its membership, which had been used by that legislature to expel members for undefined and unspecified reasons completely and wholly unrelated to any breach of its privilege or its contempt and thus not as a punitive measure of express punishment for i contempt of the House.

231. May, in 20th Edition dealt with the "Penal Jurisdiction of the Houses of Parliament" in separate chapter (Chapter 9), and after dealing with the power to inflict punishment for contempt and referring to various sanctions including that of commitment, fine, reprimand & admonition, talked about the power of"Expulsion by the Commons" at page 139, where he would state thus:-

"The purpose of expulsion is not so much disciplinary as remedial, r . F not so much to punish Members as to rid the House of persons who are unfit for membership. It may justly be regarded as an example of the House's power to regulate its own constitution. But it is more convenient to treat it among the methods of punishment at the disposal of the House." G

232. In the 23rd Edition of May's Parliamentary practice, the discourse on the subject of "Privilege of the House of Commons with respect to its own constitution" has been shifted to Chapter 5 titled "The privilege of Parliament" and appears at page 90 onwards. As noticed earlier, the paragraph H appearing in the 20th Edition wherein it was mentioned that the privilege to

.. Y- RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.) 447 '/ provide for its proper constitution was expressed in three ways by the A House of Commons has been omitted. It is significant that the power of expulsion is mentioned even in the 23rd Edition, elaborately in Chapter 9 that deals with "Penal Jurisdiction of both Houses", alongside the other such powers of punishment including committal, fines, reprimand and admonition. The observation that the purpose of expulsion is "not so much disciplinary as remedial, not so much to punish Members as to rid the House of persons B -, who are unfit for membership" is also missing.

233. We are unable to accept the contentions of the petitioners that the source of Power of Expulsion in England was the privilege of the House of Commons to regulate its own constitution or that the source of the power c is single and indivisible and cannot be traced to some other source like independent or inherent penal power.

234. The right to enforce its privileges either by imposition of fine or by commitment to prison (both of which punishments can be awarded D ..., against the members of the House as well as outsiders) or by expulsion (possible in case of members only) is not a part of any other privilege but is by itself a separate and independent power or privilege. To enforce a privilege against a member by expelling him for breach of such privilege is not a way of expressing the power of the House of Commons to constitute itself. E

235. Though expulsion can be, and may have been, resorted to by the House of Commons with a view to preserve or change its constitution, it

-" -~ would not exclude or impinge upon its independent privilege to punish a member for breach of privilege or for contempt by expelling him from the House. Expulsion concerns the House itself as the punishment of expulsion cannot be inflicted on a person who is not a member of the House. As a

- necessary and direct consequence, the composition of the House may be affected by the expulsion of a member. That would not, however, necessarily mean that the power of expulsion is exercised only with a view, or for the purpose of regulating the composition of the House. One of the three ways of exercising the privilege of the Commons to constitute itself as mentioned 1 by May (in 20th Edition) can undoubtedly, in certain circumstances, be expressed by expelling a member of the House. But this does not mean that the existence and exercise of the privilege of expelling a member by way of punishment for misconduct or contempt of the House stands ruled out. The H

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

A power of self composition of the House of Commons is materially distinct and meant for purposes other than those for which the House has the competence to resort to expulsion of its members for acts of high misdemeanour. The existence of the former power on which expulsion can be ordered by the House of Commons cannot by itself exclude or abrogate the independent power of the House to punish a member by expelling him, B a punishment which cannot be inflicted on a non-member.

236. Expulsion being regarded as "justly as an example of the privilege of the House of Commons to regulate its own Constitution" by May does not mean that the power to expel is solely derived from the privilege to c regulate its own Constitution or that without the privilege of providing for its own Constitution, the House could not expel a member. The latter view would be contrary to the established position that the House has a right as part of its privilege to have complete control over its proceedings including the right to punish a member by expulsion who by his conduct interferes with the proper conduct of Parliament business.

Power to punish fQr Contempt

237. The next question that we need to decide is whether the Indian parliament has the power of expulsion in relation to the power to punish for contempt. It is the contention of ~he petitioners that the Parliament cannot claim the larger punitive power. to punish for contempt.

238. It has been argued on behalf of the Petitioners that the power to punish for contempt is a judicial power enjoyed by the House of Commons F r" in its capacity as a High Court and, therefore, the same power would not be available to the legislatures in India. According to the Petitioners, this

G position has already been laid down in the case of UP Assembly. In addition, they wouk! also place reliance on various decisions from other jurisdictions which make a distinction between punitive contempt powers - essentially judicial in nature and powers for self-protection - incidental to every - legislative body. According to the Petitioners, the full, punitive power of the House of Commons is not available; rather the legislatures in India can exercise only limited remedial power to punish for contempt. ,

239. On the other hand, the Respondents have argued that the power H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 449

to punish for contempt is available to the Parliament in India as they are A necessary powers. It was submitted that the power to punish for contempt is a power akin to a judicial power and it is available to the Parliament without it being the High Court of Record. Further, it was submitted that the Parliament has all such powers as are meant for defensive or protective purposes. B

240. Thus, the questions that need to be addressed are as to whether the legislatures in India have the power to punish for contempt and, if so, whether there are any limitations on such power.

241. The powers, privileges and immunities of Parliament under Clause C 3 of Article 105 are other than those covered by earlier two clauses. Since powers thus far have not been defined by Parliament by law, they are such as vested in the House of Commons at the commencement of the Constitution.

241-A. The first question, therefore, is whether this source itself D 1 incorporates any restrictions. Article I 05(3) in this respect seems plain and unambiguous. Upon a reading of the clause, it seems clear that the article itself envisages no restrictions regarding the powers that can be imported from the House of Commons. It only states that the powers of the Indian parliament are those of the House of Commons in the United Kingdom E without making any distinction regarding the nature of the power or its source. Hence the argument on behalf of the respondents that it would be al.ien to the Constitution to read qualifying words into this article that are not present in the first place and not intended to be included. F

242. The respondents have referred to the evolution of the jurisprudence on the subject in other jurisdictions, in particular where there have been legislated provisions in respect of colonial legislatures, in which context it

- has been held that such legislative bodies enjoy all the powers of the House of Commons, including those the said House had enjoyed in its capacity as a Court of Record. G

243. Through an enactment establishing a Colonial Constitution, the parliament of the Colony of Victoria was empowered to define the privileges and powers it should possess, which were declared not lO exceed those possessed at the date of the enactment by the British House of Commons. H

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

A The case of Dill v. Murphy. [1864] 15 ER 784 revolved around the powers of the Legislative Assembly of Victoria. Such powers were held to include the power to punish for contempt and in the light of the enactment the distinction between the powers of the House of Commons as a legislative body and those as a High Court was not applied to weed out the 'judicial powers', this position being upheld in an appeal to the Privy Council. B Williams J. held:-

"On a closer investigation of all the authorities and considering the comprehensive nature of the 35th section, no restriction as the House of Commons as a deliberative Assembly, but of the House c of Commons generally, I am led to the conclusion ............ that the powers and privileges of Commons House of Parliament whether obtained by the lex et consuetudo Parliamenti or not, whether as a deliberative Assembly or as a component part of the Highest Court in the realm are claimable by the Legislative Assembly in this Colony. " D (Emphasis supplied) T

244. Section 20 of the law establishing the Nova Scotia House of Assembly provided it with all the powers of the House of Commons and Section 30 provided that it shall have the same powers of a Court of Record. The case of Fielding v. Thomas, p896 AC 600] involved issues concerning E the powers of the said legislature conferred upon it through statutory provisions. In this case, holding that the House of Assembly's action was legal based only on section 20, it was held:-

"Ifit was within the powers of the Nova Scotia Legislature to enact the provisions contained in s. 20, and the privileges of the Nova ..-· F Scotia Legislature are the same as those of the House of Commons of the United Kingdom as they existed at the date of passing of the British North America Act, 1867, there can be no doubt that the House of Assembly had complete power to adjudicate that the respondent had been guilty of a breach of privilege and contempt - G and to punish that breach by imprisonment. The contempt complained of was a willful disobedience to a lawful order of the House to attend." (Emphasis supplied) '

H 245. The principle that has been followed in the cases mentioned above

't RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 451

is that where the legislature has the power to make an enactment and it A ) chooses to have the powers of the House of Commons, all the powers of the House of Commons, regardless of which capacity they were enjoyed in, transfer unto the legislature. This is to say that once there is an express grant of such powers, there is no justification for excluding certain powers.

246. Rooting for the case that the extent of powers incorporated in the B Constitution is of wide amplitude, reliance has been placed on the following observations of this Court in the case of Pandit Sharma (!):-

"It is said that the conditions that prevailed in the dark days of British history, which Jed to the Houses of Parliament to claim their c powers, privileges and immunities, do not now prevail either in the United Kingdom or in our country and that there is, therefore, no reason why we should adopt them in these democratic days. Our Constitution clearly provides that until Parliament or the State Legislature, as the case may be, makes a law defining the powers, privileges and immunities of the House, its members and D Committees, they shall have all the powers, privileges and immunities of the House of Commons as at the date of the commencement of our Constitution and yet to deny them those powers, privileges and immunities, after finding that the House of Commons had them at the relevant time, will be not to interpret the Constitution but to re-make it. Nor do we share the view that it will not be right to entrust our Houses with these powers, privileges and immunities, for we are well persuaded that our Houses, like the House of Commons, will appreciate the benefit of publicity and will not exercise the powers, privileges and immunities except in gross cases. " (Emphasis supplied)

247. Reading this judgment and constitutional provisions, it does appear that the Constitution contains in A1ticle 105(3) an express grant that is subject to no limitations on the powers of the Parliament. The petitioners, however, contend that the argument of availability of all the powers and privileges has already been authoritatively rejected in UP Assembly Case by this Court and reliance is placed on the following observations:-

"Mr. Seervai's argument is that the latter part of Art. 194(3) H

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

A expressly provides that all the powers which vested in the House of Commons at the relevant time, vest in the House. This broad claim, however, cannot be accepted in its entirety, because there are some powers which cannot obviously be claimed by the House ..... Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at B the relevant time can be claimed by the House."

(Emphasis supplied)

248. It does not follow from rejecting the broad claims and holding that c there are some powers of House of Commons which cannot be claimed by Indian legislatures, that the power of expulsion falls in that category. A little later we will show the circumstances which led to UP Assembly case and its ratio on the point in issue.

D 249. On the specific issue of the power to punish for contempt, learned Counsel have relied on various observations made in the aforementioned case in support of the proposition that the legislatures in India are not a Court of Record. It has been submitted that, relying on the logic of case of UP Assembly, any privilege that is found to be part of the 'lex et consuetudo par/iamenti' would be unavailable to the Indian legislatures, E because the Indian legislatures cannot claim to be Courts of Record. In line with the same reasoning, it has been argued that all that the Indian Legislatures can claim is a limited power to punish for contempt.

250. Reliance has been placed on several English cases, namely Keilley F v. Carson, [1842 4 Moo. PC 63], Fenton v. Hampton, [1858 11 MOO PCC 347], Doyle v. Falconer, [1865-67) LR 1PC328], and Bartonv. Taylor, [1886 11 App Cases 197]. These cases refer to the distinction between the punitive powers of contempt and the self-protection powers. Significantly, while the first two cases related to conduct of outsiders, the latte; two cases G related to the conduct of sitting members. These four cases hold that the other legislatures, that is to say bodies other than the House of Commons, can only claim the protective powers of the House. This distinction has been explained in Doyle as follows:-

"It is necessary to distinguish between a power to punish for a H

1 RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.J 453

... contempt, which is a judicial power, and a power to remove any A )' obstruction offered to the deliberations or proper action of a ~ Legislative body during its sitting, which last power is necessary for self-preservation."

251. It has been submitted on behalf of the petitioners that Parliament B can only claim the protective, limited power to punish for contempt, that also if committed ex facie. It has been argued that this limited self-protective """ power can never include power of expulsion, as expulsion is not necessary for the protection of the House. A distinction between expulsion and exclusion is sought to be brought out to argue that the measure of exclusion would be sufficient for the protection of the dignity of the House. c ,-

252. On the other hand, for the respondent it was submitted that the Pri·JY Council cases referred to above are irrelevant in as much as they laid down the powers of subordinate or colonial legislatures, whereas Parliament in India is the supreme legislative body and the limitations that bind such D subordinate bodies as the fonner category cannot bind the latter.

1 253. The petitioners, in answer to the above argument, have referred .) to the decision of US Supreme Court in the case of Marshall v. Gordon, [243 U.S. 521, 541 1917]. The case related to the contempt powers of the US Congress. The Congress had charged a District Attorney for contempt. The E question before the Court was as to whether Congress had the power to do so without a trial and other legal requirements. The Court held that the US Congress did not have the 'punitive' power of contempt. At page 887, the US Supreme Court observed:- F - "There can be no doubt that the ruling in the case just stated upheld the existence of the implied power to punish for contempt as distinct from legislative authority and yet flowing from it. It thus becomes apparent that from a doctrinal point of view the English rule concerning legislative bodies generally came to be in exact G accord with that which was recognized in Anderson v. Dunn, supra, as belonging to Congress, that is, that in virtue of the grant of legislative authority there would be a power implied to deal with ,. contempt in so far as that authority was necessary to preserve and '.:j carry out the legislative authority given." H

_,__ 454 SUPREME COURT REPORTS [2007] I S.C.R. ~

A '( .... "Without undertaking to inclusively mention the subjects embraced ~~

in the implied power, we think from the very nature of that power it is clear that it does not embrace punishment for contempt as punishment, since it rests only upon the right of self-preservation, B that is, the right to prevent acts which in and of themselves inherently obstruct or prevent the discharge of legislative duty or ~ the refusal to do that which there is an inherent legislative power '

to compel in order that legislative functions may be performed." ~

c 254. Placing reliance on the above case, it was also argued by the petitioners that unless India tends to be "terribly arrogant", one cannot -t place the Indian Parliament on a higher footing than the Congress of the United States. In our view, there is no place here for arguments of sentiments. It is not the comparative superiority of the Indian parliament D with respect to either the Colonial Legislatures or the US Congress that determines the extent of its powers. We would rather be guided by our constitutional provisions and relevant case law. t I;

255. The respondents have referred to the case of Yeshwant Rao v. MP Legislative Assembly, AIR (1967) MP 95, decided by the Madhya Pradesh E High Court. This case involved the expulsion of two members of the State Legislative Assembly for obstructing the business of the House and defying the Chair. This expulsion was challenged in the High Court. It was argued that the House had no power to expel as the power to expel in England was part of the power to regulate its own constitution, which was not available F to the House in India. It was also argued by the Petitioners in that case that the resolut:ons expelling them were passed without giving them an opportunity ./ " to explain the allegations. The High Court dismissed the petition holding that it had the limited jurisdiction to examine the existence of the power to

·- expel and found that the House did in fact have this power. G 255-A. Noticeably, in this case, the High Court did not look into the power to punish for contempt. It held the Legislative Assembly's power to expel its member to be an inherent power for "its protection, self-security and self-preservation and for the orderly conduct of its business." The High Court was of the view that:- t " H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 455

"The House of Commons exercises the power of expelling a member A not because it has the power to regulate its own constitution but because it finds it necessary for its proper functioning, protection and self-preservation to expel a member who has offered obstruction to the deliberations of the House during its sitting by his disorderly conduct or who has conducted himself in a manner rendering him unfit to serve as a member of the Parliament." B

256. The case of Hardwari Lal v. Election Commission of India Etc., [ILR (1977) P&H 269] decided by a full bench of Punjab & Haryana High Court also related to expulsion of a sitting member from the legislative assembly of the State of Haryana. The majority decision in that case held c that the Legislative Assembly does not have the power to expel. The ratio in that case was identical to the arguments of the petitioners before us in the present case. The minority view in the case was, however, that the Legislative Assembly did have the power to expel as well as the power to punish for contempt. This view has been commended by the respondents to us as the correct formulation of law. With respect to the power to punish for contempt, the minority view has distinguished the case of UP Assembly on the ground that it dealt only with non-members and held that the fact that the power to punish for contempt was sourced from the judicial functions of the House of Commons is wholly irrelevant. The minority view says: E "Indeed the source from which the House of Parliament derives a power to punish for its contempt may not be in dispute at all, but it must be remembered that "House of Parliament" and "House of Commons' are not synonyms. As already stated the House of F Parliament consists of the House of Commons, the House of Lords and the King Emperor (or the Queen as the case may be). Be that as it may, if we were to go to the source from which the Commons derive. any particular power or privilege and then to decide whether that particular source is or is not available to the Indian Legislatures in respect of that privilege, it would be adopting a G course which is wholly foreign to the language of Article 194(3). Such an enquiry would be relevant only if we were to read into Article 194(3) after the words "at the commencement of this Constitution", the words "other than those which are exercised by the Commons as a descendant of the High Court of Parliament". H

"' A 456 SUPREME COURT REPORTS (2007] I S.C.R.

There is no justification at all for reading into Article 194(3) what ,- 'r ... ,__

the Constituent Assembly did not choose to put therein. Adopting \,. r such a course would, in my opinion, not be interpreting clause (3) of Article I 94, but re-writing it."

(Emphasis supplied) B

257. The case of K. Anbashagan v. Tamil Nadu Legislative Assembly, AIR (1988) Mad 275 had similar dispute concerning powers of the State + legislative assembly in Tamil Nadu. The view taken by the Madras High Court is similar to the one in Yeshwant Rao decided by the Madhya Pradesh ... c High Court and the minority view in the Hardwari Lal decided by Punjab & Haryana High Court. It was held by Madras High Court that the power of expulsion is available as a method of disciplining members. However, at j_ no point did the Court examine the power to punish for contempt. The Court F upheld the power of expulsion independently of the contempt jurisdiction .

.D 258. The petitioners referred to the case of UP Assembly, particularly the passages quoted hereinafter:- "'" 4-

"In considering the nature of these privileges generally, and r ' particularly the nature of the privilege claimed by the House to punish for contempt, it is necessary to remember the historical origin of this doctrine of privileges. In this connection, May has emphasised that the origin of the modem Parliament consisted in its judicial functions."

"In this connection, it is essential to bear in mind the fact that the ...... j status of a superior Court of Record which was accorded to the i v- House of Commons, is based on historical facts to which we have ~ already referred. It is a fact of English history that the Parliament l .. G was discharging judicial functions in its early career. It is a fact of both historical and constitutional history in England that the House L ,, 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 introduced H ~

'I RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 457 ... ) in India by any legal fiction. Appropriate legislative provisions do A occasionally introduce legal fiction, but there is 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 fiction can hardly introduce historical facts from one country to another." B .......................................

"The House, and indeed all the Legislative Assemblies in India never discharged any judicial function and constitutional background does not support the claim that they can be regarded as Courts of Record in any sense. If that be so, the very basis on c which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior Court of Record, is absent in the present case, and so, it would be unreasonable to contend that the relevant power to claim a conclusive character for the general warrant which D the House of Commons, by agreement, is deemed to possess, is ,,} vested in the House. On this view of the matter, the claim made by the House must be rejected." \ (Emphasis supplied) I E '

259. It has been argued that in the face of above-quoted view of t~is Court, it cannot be allowed to be argued that that all the powers of the House of Commons that were enjoyed in its peculiar judicial capacity can be enjoyed by the legislatures in India. In our considered view, such broad proposition was neither the intended interpretation, nor does the judgment support such a claim.

260. In above context, it is necessary to recognize the special circumstances in which case of UP Assembly arose. It involved the resolutions of the Legislative Assembly in Uttar Pradesh finding that not only had Keshav Singh committed contempt of the House, but even the two Judges of the High Court, by admitting Keshav Singh's writ petition, and indeed his Advocate, by petitioning the High Court, were guilty of contempt -~ of the legislature. The resolution further ordered the Judges of the High Court to be brought before the House in custody. In response to this H

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

.... A resolution, petitions were filed by the Judges under Article 226. In the wake "'::;. of these unsavoury developments involving two organs of the State, the President of India decided to make a reference to the Supreme Court under Article 143(1) formulating certain questions on which he desired advice.

261. Significantly, the scope of the case· was extremely narrow and B limited to the questions placed before the Court. The Court noticed the narrow limits of the matter in following words:-

"During the course of the debate, several propos1t1ons were canvassed before us and very large area of constitutional law was c covered. We ought, therefore.' to make it clear at the outset that in formulating our answers to the questions framed by the President in the present Reference, we propose to deal with only such points as, in our opinion, have a direct and material bearing on the problems posed by the said questions. It is hardly necessary to emphasise that in dealing with constitutional matters, the Court D should be slow to deal with question which do not strictly arise. This precaution is all the more necessary in dealing with a reference ) .... made to this Court under Art. 143(1)~"

(Emphasis supplied) E

262. The question of the power to punish for contempt was never even seriously contested before the court. Rather, while discussing the various contentions raised before it, the Court noted:-

"It is not seriously disputed by Mr. Setalvad that the Hous.z has F the power to inquire whether its contempt has been committed by ., anyone even outside its four-walls and has the power to impose punishment for such contempt; but his argument is that having regard to the material provisions of our Constitution, it would not be open to the House to make a claim that its general warrant .,. G should be treated as conclusive."

(Emphasis supplied)

263. Thus, in the case of UP Assembly the Court was mainly concerned -::i.I with the power claimed by legislature to issue general warrant and conclusive ·, \ H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 459

character thereof. There was no challenge in that case to the power to A punish for contempt, much less the power to expel, these issues even otherwise being not inherent in the strict frame of reference made to the Court.

264. Indeed, the thrust of the decision was on the examination of the power to issue unspeaking warrants immune from the review of the Courts, B and not on the power to deal with contempt itself. A close reading of the case demonstrates that the Court treated the power to punish for contempt as a privilege of the House. Speaking of the legislatures in India, it was stated:- c "there is no doubt that the House has the power to punish for contempt committed outside its chamber, and from that point of view it may claim one of the rights possessed by a Court of Record"

(Emphasis supplied) D

265. Speaking of the Judges' power to punish for contempt, the Court observed:-

"We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger of irritation would not help to sustain the dainty or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct. We venture to think that what is true of the Judicature is equally true of the Legislatures. " G (Emphasis supplied)

266. It is evident, therefore, that in the opinion of the Court in case of UP Assembly, legislatures in India do enjoy the power to punish for contempt. It is equally clear that the while the fact that the House of H

460 SUPREME COURT REPORTS [2007] I S.C.R. ' A Commons enjoyed the power to issue unspeaking warrants in its capacity )._ "'== of a Court of Record was one concern, what actually worried the Court was not the source of the power per se, but the 'judicial' nature of power to issue unspeaking warrant insofar as it was directly in conflict with the scheme of the Constitution whereby citizens were guaranteed fundamental rights and the power to enforce the fundamental right is vested in the Courts. It was B not the power to punish for contempt about which the Court had reservations. Rather, the above-quoted passage shows that such power had been accepted by the Court. The issue 'decided concerned the non- + reviewability of the warrant issued by the legislature, in the light of various constitutional provisions. c

267. Last, but not the least, there are many differences between the case of UP Assembly and the one at hand. The entire controversy in the former case revolved around the privileges of the House in relation to the fundamental rights of a citizen, an outsider to the House. The decision expressly states that the Court was not dealing with internal proceedings, D nor laying down law in relation to members of the House. In the words of the Court:- \i:- The obvious answer to this contention is that we are not dealing with any matter relating to the internal management of the House E in the present proceedings. We are dealing with the power of the House to punish citizens for contempt alleged to have been committed by them outside the four-walls of the House, and that essentially raises different considerations."

xxxxxxx F "In conclusion, we ought to add that throughout our dis.cussion we have consistently attempted to make it clear that the ,:nain poi1Jt which we are discussing is the right of the House to claim that a general warrant issued by it in respect of its contempt alleged to have been committed by a citizen who is not a Member of the G House outside the four-walls of the House, is conclusive, for it is on that claim that the House has chosen to take the view that the Judges, the Advocate, and the party have committed contempt by reference to the conduct in the habeas cprpus petition pending before the Lucknow Bench of the Allahab~d High CO'urt." H (Emphasis supplied) I ~

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL CJ.] 461 · ,/ ), 268. In the light of the above, we are of the opinion that the ratio of A case of UP Assembly, which was decided under significantly different circumstances, cannot be interpreted to have held that all the powers of the House of Commons enjoyed in its capacity as a Court of Record are unavailable to the Indian parliament, including the power to punish for contempt. B

269. The view that we are taking is in consonance with the decisions + of this court in the two cases of Pandit Sharma. In Pandit Sharma(!), this Court upheld the privilege of the legislative assembly to prevent the publication of its proceedings and upheld an action for contempt against a citizen. This decision was reiterated by a larger bench of this Court in Pandit C Sharma (II), when it refused to re-examine the issues earlier answered in Pandit Sharma (!). The cases involved contempt action by the legislature against an c•1tsider curtailing his fundamental rights, and yet the Court refused to strike down such action. D

270. This view finds further strength from the case of State of Karnataka v. Union of India, [1977] 4 SCC 608. This case involved a challenge to the appointment of a commission of enquiry against the Chief Minister and other Ministers of Karnataka. In this context, the Court examined the 'powers' of the state in relation to Article 194 (3). It would be fruitful to extract the relevant portions of the decision. They are as follows: E

"....... But, apart from an impeachment, which has become obsolete, or punishment for contempts of a House, which constitute only a limited kind of offences, the Parliament does not punish the offender. For establishing his legal liability recourse to ordinary courts of law is indispensable."

"It is evident, from the Chapter in which Article 194 occurs as well as the heading and its marginal note that the "powers" meant to be indicated here are not independent. They are powers which depend upon and are necessary for the conduct of the business of each House. They cannot also be expanded into those of the House of Commons in England for all purposes. For example, it could not be contended that each House of a State Legislature has the same share of legislative power as the House of Commons has, H

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

A as a constituent part of .a completely sovereign legislature. Under our law it is the Constitution which is sovereign or supreme. The Parliament as well as each Legislature of a State in India enjoys only such legislative powers as the Constitution confers upon it. Similarly, each House of Parliament or State Legislature has such share in Legislative power as is assigned to it by the Constitution B itself. The powers conferred on a House of a State Legislature are distinct from the legislative powers of either Parliament or of a State legislature for which, as already observed, there are separate provisions in our Constitution. We need not travel beyond the words of Article 194 itself, read with other provisions of the c Constitution, to clearly reach such a conclusion."

"There is, if we may say so, considerable confusion still in the minds of some people as to the scope of the undefined "powers, privileges and immunities" of a House of a State Legislature so much so that it has sometimes been imagined that a House of a D State Legislature has some judicial or quasi-judicial powers also, quite apart from its recognised powers of punishment for its contempts or the power of investigations it may carry out by the appointment of its own committees."

E " ..........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 "privileges" and "immunities" because, in doing so, it only seeks removal of obstructions to the due F performance of its legislative functions. But, if any question of jurisdiction arises as to whether a matter falls here or not, it has to be decided by the ordinary courts in appropriate proceedings. For example, the jurisdiction to try p criminal offence, such as murder, committed even within a House vests in ordinary criminal courts and not in a House of Parliament or in a State Legislature. " G (Emphasis supplied)

271. The passage quoted above makes it further clear that the only limitation the Court recognizes in the power of the legislatures to punish for contempt is that such contempt powers cannot be used to divest the

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 463

ordinary courts of their jurisdiction. This is in tune with the decision in the case of UP Assembly. More over, when the Court spoke of the use of contempt power to remove obstructions to the functioning of the House, it did not read into it any limitations on the power to punish for contempt. Rather, the general purpose of its invocation was recognized.

272. Thus, we are unable to accept the contention that the power to B J. punish for contempt is denied to the Indian legislatures as they are not Courts of Record. However, we would like to emphasize that the power to punish for contempt of the House of Commons is a very broad power, encompassing a variety of other powers. The case of UP Assembly examined only one aspect of that power - to issue unspeaking warrants - and held that such a power is unavailable under our constitution. What we are presently examining in the cases at hand is another aspect of this broad contempt power - the power to expel a sitting member. While we hold that . the power to punish for contempt in its totality has not been struck down by decision in UP Assembly, we do not intend to rule on the validity of the broad power to punish for contempt as a whole. The different elements of this broad contempt power will have to be decided on an independent scrutiny of validity in appropriate case. We would restrict ourselves to the power to expel a member for contempt committed by him. Having found, however, that there is no bar on reading the power to punish for contempt in Article 105(3), it is possible to source the power of expulsion through the same provision.

273. There is no contest whatsoever to the plea that the House of Commons did in fact enjoy the power of expulsion at the commencement of the Constitution. A number of instances have been quoted even by the petitioners, including those occurring around the time of the commencement of the Constitution. To mention some of them, notice may be taken of case of member named Horatio Bottomley, expelled in 1922 after he was convicted for fraudulent conversion of property; case of Gary Allighan, expelled in 1947, for gross contempt of House after publication of an article accusing members of the House of insobriety and taking fees or bribe for information; and, the case of Peter Baker, expelled in 1954 from the House after being convicted and sentenced for forgery.

274. Although the examples of expulsion in this century by the House of Commons are few, the relevant time for our purposes is the date of the H

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

A commencement of the Constitution. The last two cases occurring in 194 7 and 1954 clearly establish that the power to expel was in fact a privilege of the House of Commons at the commencement of our Constitution. Thus, from this perspective, the power of expulsion can be read within Article 105(3). We have already held that this power is not inconsistent with other provisions of the Constitution. B

275. We may also briefly deal with the other possible sources of the power of expulsion.

Plea of limited remedial power of Contempt

C 276. The next scrutiny concerns the anxiety as to whether the Parliament possesses only a limited remedial power of contempt and, if so, whether it can source therefrom the power of expulsion.

277. There has been great debate around the cases of Keilley, Fenton, Doyle and Barton mentioned earlier. We would, therefore, notice the D relevant portions of the decisions rendered in the said cases.