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

278. The case of Keilley arose out of the imprisonment of the appellant, who allegedly used threatening and insulting language against a member of \ the Legislative Assembly of Newfoundland. His conduct was held to be a breach of privilege by the Assembly and their powers came up for scrutiny E before the Privy Council. It was found by the court that the Legislative Assembly of Newfoundland did not have the power to punish for contempt. The judgment was delivered by Mr. Baron Parke, who held:-

"The whole question then is reduced to this-whether by law, the power of committing for a contempt, not in the presence of the F Assembly, is incident to every local Legislature. The Statute Law on this subject being silent, the Common Law is to govern it; and what is the Common I,..aw, depends upon principle and precedent.

G Their Lordships see no reason to think, that ill .the principle of the Common Law, any other powers are given them, than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment, an act which on both sides, it is admitted, it was competent for the Crown to perform. H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 465

1 This is the principle which governs all legal incidents. "Qunado Lex A aliquid concedit, concedere et illud, sine quo res ipsa esse non potest." In conformity to this principle we feel no doubt that such as Assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the B free exercise of their Legislative functions, they are justified in acting by the principle of the Common Law. But the power of punishing any one for past misconduct as a contempt of its authority, and adjudicating upon the fact of such a contempt, and the measure ofpunishment as a judicial body, irresponsible to the party accused, whatever the real facts may be, is of a very different c character, and by no means essentially necessary for the exercise of its functions by a local Legislature, whether representative or not. (234-35)

D But the reason why the House of Commons has this power, is not because it is a representative body with legislative functions, but by virtue of ancient usage and prescription; the lex et consuetude Parliamenti, which forms a part of the Common Law of the land, and according to which the High Court of Parliament, before it~. E division, and the Houses of Lords and Commons since, are invested with many peculiar privileges, that of punishingfor contempt being one. (235)

F Nor can the power be said to be incident to the Legislative Assembly by analogy to the English Courts of Record which possess it. This assembly is no Court of Record, nor has it any judicial functions whatever' and it is to be remarked, that all these bodies which possess the power of adjudication upon, and punishing G in a summary manner,. contempts of their authority, have judicial functions, and exercise this as incident to those which they possess, except only the House of Commons, whose authority, in this respect, rests upon ancient usage." (235) (Emphasis supplied) · H

-\ 466 SUPREME COURT REPORTS [2007] I S.C.R.

A 279. The above case was followed in Fenton. This action against the Speaker of the Legislative Assembly of Van Dieman' s Island arose from the allegedly unlawful assault, seizure and imprisonment of the respondent. The judgment was pronounced by Lord Chief Baron Pollock on 17th February,

1858. The case followed Keiliey, observing that in that case:-

B "they held that the power of the House of Commons in England was part of the 'Lex et consuetudo Parliamenti'; and the existence of that power in the Commons of Great Britain did not warrant the + ascribing it to every Supreme Legislative Council or Assembly in the Colonies. We think we are bound by the decision of the case c of Keilley v. Carson."

280. The next case was that of Doyle. This case involved the power of the Legislative Assembly of Dominica to punish its member for his conduct in the Assembly. This case followed Keilley and Fenton holding that the Assembly had no power to punish for contempt. The judgment was delivered by Sir James Colvile. It was observed:-

"Keilley v. Carson. ........ must here be taken to have decided conclusively that the Legislative Assemblies in the British Colonies have, in the absence of express grant, no power to adjudicate upon, or punish for, contempts committed beyond their walls. (339)

The privileges of the House of Commons, that of punishing for contempt being one, belong to it by virtue of lex et consuetude Parliamenti, which is a law peculiar to and inherent in two Houses of Parliament of the United Kingdom. It cannot therefore, be inferred from the possession of certain powers by the house of Commons, by virtue of that ancient usage and prescription, that the like powers belong to Legislative Assemblies of comparatively

G recent creation in the dependencies of the Crown. (339)

- Again, there is no resemblance between a Colonial House of Assembly, being a body which has no judicial functions, and a Court of Justice, being a Court of Record. There is, therefore, no ground for saying that the power of punishing for contempt, H

'f RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 467

because it is admitted to be inherent in the one, must be taken by analogy to be inherent in the other." (339)

Is the power to punish and commit for contempts committed in its presence one necessary to the existence of such a body as the Assembly of Dominica, and the proper exercise of the functions which it is intended to execute? It is necessary to distinguish between a power to punish for a contempt, which is a judicial power, and a power to remove any obstruction offered to the deliberations or proper action of a Legislative body during its sitting, which last power is necessary for self-preservation. If a Member of a Colonial House of Assembly is guilty of disorderly c conduct in the House whilst sitting, he may be removed, or excluded for a time, or even expelled; but there is a great difference between such powers and the judicial power of inflicting a penal- sentence for the offence. The right to remove for self-security is one thing, the right to inflict punishment another." (340) D

281. Finally, in Barton, it involved the suspension of a member from J the Legislative Assembly of New South Wales. The power of suspension for an indefinite time was held to be unavailable to the Legislative Assembly as it was said to have trespassed into the punitive field. The judgment was delivered by the Earl of Selborne. Referring to the cases of Keilley and E Doyle, the Court observed:-

"It results from those authorities that no powers of that kind are

- incident to or inherent in a Colonial Legislative Assembly (without express grant), except 'such as are necessary to the existence of .,. such a body, and the proper exercise of the functions which it is F intended to execute'.

- Powers to suspend toties quoties, sitting after sitting, in case of repeated offences (and, if may be, till submission or apology), and also to expel for aggravated or persistent misconduct, appear to be sufficient to meet even the extreme case of a member whose conduct is habitually obstructive or disorderly. To argue that G

..r:.. expulsion is the greater power, and suspension the· less, and that the greater must include all degrees of the less, seems to their Lordships fallacious. The rights of constituents ought not, in a H

468 SUPREME COURT REPORTS [2007] 1 S.C.R. " A question of this kind, to be left out of sight. Those rights would "' " >; # be much more seriously interfered with by an unnecessarily prolonged suspension then by expulsion, after which a new election would immediately be held."

(Emphasis supplied) B

282. The Court went on to examine what is necessary and found that an indefinite suspension could never be considered necessary.

283. The learned Counsel for the petitioners have relied on the above distinction and submitted that the limited power does not envisage expulsion c and can only be used for ex facie contempts.

284. We are not persuaded to subscribe to the propositions advanced on behalf of the petitioners. Even if we were to accept this distinction as applicable to the Indian parliament, in our opinion, the power to expel would D be available.

285. Firstly, the case of Barton, which allows only a limited power to punish for contempt, finds that even though the Legislative Assembly does not have the power to indefinitely suspend, as that was punitive in nature, the Assembly would have the power to expel, considering expulsion a non- E punitive power. Secondly, the objection that the limited power could only deal with ex facie contempt, is not tenable.

286. In the above context, reference may be made to the case of Hartmtt v. Crick, [(1908) AC 470]. This case involved the suspension of F a member of the Legislative Assembly of New South Wales until the verdict of the jury in the pending criminal trial against the Member had been delivered. The suspension was challenged. When the matter came up before

G the Privy Council, the Respondents argued that:-

"The Legislative Assembly had no inherent power to pass .. [the standing order]. Its inherent powers were limited to protective and defensive measures necessary for the proper exercise of its functions and the conduct of its business. They did not extend to punitive measures in the absence of express statutory power in that behalf, but only to protective measures .... The fact that H a criminal charge is pending against the respondent does not

' 'f RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 469 ., affect or obstruct the course of business in the Chamber or relate A ) '_. to its orderly conduct."

287. This argument was rejected and the House of Lords allowed the appeal. Lord Macnaghten, delivering the judgment, initially observed that:

" ........ no one would probably contend that the orderly conduct of B the Assembly would be disturbed or affected by the mere fact that a criminal charge is pending against a Member of the House" (475) +-

288. But he found that certain peculiar circumstances of the case deserved to be given weight. The Court went on to hold thus:- C

"If the House itself has taken the less favourable view of the plaintiff's attitude [an insult and challenge to the house], and has judged that the occasion justified temporary suspension, not by way ofpunishment, but in self-defence, it seems impossible for the Court to declare that the House was so wrong in its judgment, and D the standing order and the resolution founded upon it so foreign to the purpose contemplated by the Act, that the proceedings must be declared invalid."(476) (Emphasis supplied) E

289. The above case thus establishes that even if the House of legislature has limited powers, such power is not only restricted to ex facie contempts, but even acts committed outside the House. It is open to the assembly to use its power for "protective" purposes, and 'the acts that it can act upon are not only those that are committed in the House, but upon anything that lowers the dignity of the House. Thus, the petitioners' F submission that House only has the power to remove obstructions during its proceedings cannot be accepted.

290. It is axiomatic to state that expulsion is always in respect of a member. At the same time, it needs to be borne in mind that a member is G part of the House due to which his or her conduct always has a direct bearing upon the perception of the House. Any legislative body must act through its members and the connection between the conduct of the members and the perception of the House is strong. . We, therefore, conclude that even if the Parliament had only the limited remedial power to H

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

A punish for contempt, the power to expel. would be well within the limits of • ~- such remedial contempt power.

· 291. We are unable to find any reason as to why legislatures established in India by the Constitution, including the Parliament under Article 105 (3), should be denied the claim to the power of expulsion arising out of remedial B power of contempt.

Principle of necessity +

292. Learned Counsel for Union of India and the learned Additional Solicitor General also submitted that the power of expulsion of a sitting c member is an inherent right of every legislature on the ground of necessity. The argument is that 'necessity' as a source of the power of expulsion, is also available to a House for expulsion of one of its members, as such power is 'necessary' for the functioning of the House. The petitioners, on the other hand, argued that expulsion can never be considered 'necessary' or D a 'self protective' power and, therefore, it cannot be claimed by the House.

293. In view of our interpretation of Article I 05(3) of the Constitution, it is not essential to determine the question whether 'necessity' as an ... ' independent source of power, apart from the power of the House to punish for contempt, by expulsion of a member, is available or not. We may note E that number of judgments were cited in support of the respective view points.

294. Further, the Petitioners have also relied on the fact that Australia has passed a law taking away the power of expulsion. It is true that Section F 4 of the Parliamentary Privileges Act, 1987 removed the power to expel from the Houses of the Commonwealth Parliament in Australia. The Act was passed on the recommendation of the Parliament's Joint Select Committee on Parliamentary Privilege. Enid Campbell, the eminent authority on Australian Parliamentary privi,lege writes, "The Committee so recommended because of the potential abuse of the power, because of the specific provisions in the federal Constitution on disqualification of members, 'and on the basic consideration that it is for the electors, not members, to decide on the composition of-Parliament'."

295. Odger's Australian Senate Practice further clarifies .the basis for the Joint Select Committee's recommendation :

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 471

"The 1984 report of the Joint Select Committee on Parliamentary A Privilege recommended that the power of a House to expel its members be abolished. The rationale of this recommendation was that the disqualification of members is covered by the Constitution and by the electoral legislation, and if a member is not disqualified the question of whether the member is otherwise unfit for membership of a House should be left to the electorate. The B committee was also influenced by the only instance of the expulsion of a member of a House off the Commonwealth Parliament, that of a member ofthe House of Representatives in 1920 for allegedly seditious words uttered outside the House. This case had long been regarded as an instance of improper use of the power (see, c for example, E. Campbell, Parliamentary Privilege in Australia, MUP, 1966, pp.104-05 (Odger's Australian Senate Practice 11th -J Edition, 56-57).

296. The Australian Joint Committee Report itself weighs the dangers of misuse of expulsion against any potential need for expulsion and definitively recommends its abolition :

"This danger [i.e. misuse by the majority] can never be eradicated and the fact that the only case in federal history when the power to expel was exercised is a case when, we think, the power was demonstrably misused is a compelling argument for its abolition .. But the argument for abolition of the power to expel does not depend simply on the great potential for abuse and the harm such abuse can occasion. There are other considerations. Firstly, there are the detailed provisions in the Constitution. In short, we already F . have something approaching a statutory code of disqualification . Secondly, it is the electors in a constituency or in a State who decide on representation. In principle, we think it wrong that the institution to'. which the person has been elected should be able to reverse the decision of his constituents. If expelled he may stand for re-election but, as we have said, the damage occasioned by his G expulsion may render his prospects of re-election negligible. Thirdly, the Houses still retain the wide powers to discipline Members. Members guilty of a breach of privilege or other contempt may be -t committed, or fined.... These sanctions seem drastic enough. They may also be suspended or censured by their House." H

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

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

Argument of Parliamentary practice B

298. During the course of arguments it was brought out that since the date of commencement of the Constitution of India there have been three occasions when the Houses of Parliament have resorted to expulsion of the sitting Member. Out of these three occasions, two pertained to Members C of Lok Sabha.

299. The first such case came on 8th June 1951 when the 1st Lok Sabha resolved to expel Mr. H.G. Mudgal for having engaged himself in conduct that was derogatory to the dignity of the House and inconsistent with the standard which Parliament is entitled to expect from its members. D The second occasion of expulsion came in 6th Lok Sabha, when by a resolution adopted on 19th December 1978, it resolved to agree with the recommendations and findings of the Committee of Privileges and on the basis thereof ordered expulsion of Mrs. Indira Gandhi along with two others (Mr. R.K. Dhawan and Mr. D. Sen) from the membership of the House E having found them guilty ·of breach of privilege of the House. The third case pertains to Rajya Sabha when expulsion of Mr. Subramanium Swamy was I ordered on 15th November 1976. tI

300. The above-mentioned three instances of expulsion from the Houses of Parliament have been referred to by the learned counsel for Union F oflndia in support of his argument that expulsion of a Member of Parliament has not been ordered for the first time and that it is now part of Parliamentary practice that the Houses of Parliament can expel their respective members for conduct considered unfit and unworthy of a Member. On the other hand, the learned counsel for the petitioners would refer to these very instances G to quote certain observations in the course of debates in the Parliament to buttress their plea that the Parliamentary practice in India is against resort to the extreme penalty of expulsion from amongst the sanctions that may be exercised in cases of breach of privileges by the House of Commons.

H 301. The facts of the case of expulsion of Mr. Subramaniam Swamy

l RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 473 . :4 from Rajya Sabha are narrated by Subhash C. Kashyap in his 'Parliamentary A Procedure' (Vol. 2, p. 1657). It appears that Rajya Sabha adopted a motion on 2nd September 1976 appointing a Committee to investigate the conduct and activities of the said member, within and outside the country, including alleged anti-India propaganda calculated to bring into disrepute Parliament and other democratic institutions of the country and generally behaving in a manner unworthy of a member. The Committee presented report on 12th B November 1976 recommending expulsion as his conduct was found to be + derogatory to the dignity of the House and inconsistent with the standards which it was entitled to expect from its members. On 15th November 1976, a motion was adopted by Rajya Sabha expelling the member. c

303. When the report of the Committee was being debated, Pt. Jawahar Lal Nehru, the then Prime Minister of India, spoke at length on the subject. His speech rendered in Parliament on 24th September 1951 dealt with the facts of the case as also his views on the law on the subject. After noticing that in the Constitution of India no particular course is laid down in regard G to such matters inasmuch as Article 105(3) refers one back to the practice in the British House of Commons, this is what he had to say :- -.r " ....... this House as a sovereign Parliament must have inherently the right to deal with its own problems as it chooses and I cannot H

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

imagine anybody doubting that fact. This particular article throws '..:~ A ), yo°' back for guidance to the practice in the British House of Commons. There is no doubt as to what the practice in the House of Commons of the Parliament in the U .K. has been and is. Cases have occurred from time to time there, when the House of Commons has appointed a Committee and taken action B

+ So there is no doubt that this House is entitled inherently and also if reference be made to the terms of article 105 to take such ..... c steps according to the British practice and expel such a Member from the House.

The question arises whether in the present case this should be done or something else. I do submit that it is perfectly clear that this case is not even a case which might be called a marginal case, D where people may have two opinions about it, where one may have doubts if a certain course suggested is much too severe. The case, if I may say so, is as bad as it could well be. If we consider even such a case as a marginal case or as one where perhaps a certain amount of laxity might be shown, I think it will be unfortunate from E a variety of points of view, more especially because, this being the first case of its kind coming up before the House, ifthe House does not express its will in such matters in clear, unambiguous and forceful terms, then doubts may very well arise in the public mind ~ as to whether the House is very definite about such matters or not. F Therefore, I do submit that it has become a duty for us and an }· obligation to be clear, precise and definite. The facts are clear and precise and the decision should also be clear and precise and unambiguous. And I submit the decision of the House should be after accepting the finding of this report, to resolve that the Member should be expelled from the House. Therefore, I beg to G move:

'That this House, naving considered the Report of the Committee appointed on the 8th June, 1951 to investigate into ')_

the conduct of Shri H.G. Mudgal, Member of Parliament, H accepts the finding of the Committee that the conduct of Shri ~

RAJA RAM PAL v. THE HON'BLE ~PEAKER, LOK SABHA fSABHARWAL, CJ.] 475

Mudgal is derogatory to the dignity of the House and A 1 inconsistent with the standard which Parliament is entitled to expect from its Members, and resolves that Shri Mudgal be expelled from the House'."

304. On 25th September 1951, the House deprecated the attempt of the member to circumvent the effect of the motfon and unanimously adopted an B amended motion that read as follows:-

"That this House, having considered the Report of the Committee appointed on the 8th June, 1951, to investigate the conduct of Shri H.G. Mudgal, Member of Parliament, accepts the findings of the Committee that the conduct of Shri Mudgal is derogatory to the c 4 dignity of the House and inconsistent with the standard which Parliament is entitled to expect from its members, and resolves that Shri Mudgal deserved expulsion from the House and further that the terms of the resignation letter he has given to the Deputy Speaker at the conclusion of his statement constitute a contempt of this House which only aggravates his offence" . . I ~

305. The facts of the matter leading to expulsion of Mrs. Indira Gandhi and two others are summarized at page 263 in Practice and Procedure of Parliament by Kaul and Shakder (5th Edn.). On 18th November 1977, a E motion was adopted by the House referring to the Committee of Privileges a question of breach of privilege and contempt of the House against Mrs. Indira Gandhi, former Prime Minister, and others r~garding obstruction,

.... intimidation, harassment and institution of false cases by Mrs. Gandhi and others against certain officials. -;:. F

306. The Committee of Privileges were of the view that Mrs. Indira Gandhi had committed a breach of privilege and contempt of the House by causing obstruction, intimidation, harassment and institution of false cases against the concerned officers who were collecting information for answer to a certain question in the House. The Committee recommended that Mrs. G Indira Gandhi deserved punishment for the serious breach of privilege and contempt of the House committed by her but left it to the collective wisdom of the House to award such punishment as it may deem fit. -f

307. A resolution was moved to inflict the punishment of committal and expulsion. In the course of debate on the motion, Mr. C.M. Stephen, Leader H

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

A of the Opposition, inter alia, inviting attention to the full Bench decision of Punjab & Haryana High Court in the case of Hardwari Lal [ILR (1977) 2 P&H 269] stated that the proposal to expel was "not countenanced by the Constitution" and the House had no power to expel ari elected member. Mr. K.S. Hegde, the Speaker, acknowledged the importance of the constitutional arguments advanced by Mr. C.M. Stephen. On 19th December 1978, the B House adopted a motion resolving that Mrs. Indira Gandhi be committed to jail till the prorogation of the House and also be expelled from the membership of the House for the serious breach of privilege and contempt of the House committed by her.

C 308. What was done by the 6th Lok Sabha thfough the resolution adopted on 19th December 1978 was undone by the 7th Lok Sabha. It discussed the propriety of the earlier decision. Certain speeches rendered in the course of the debate have been relied upon, in extenso, by the learned counsel and may be taken note of. Mr. B.R. Bhagat spoke thus:-

D "They have committed an error. I am not going into the morality of it, because I am on a stronger ground. It is illegal because there is no jurisdiction.

Coming to the third point the determination of guilt and adjudication they are judicial functions in many countries and, therefore ·question of breach of p~ivilege, contempt of the House, punishment etc. are decided in the courts of law in them. Only we have followed the parliamentary system the Westminster .type. In the House of Commons there the House itself deals with breach. of its privileges, and we have taken it from them. Therefore, here the breach of privilege is punished by the House. But in many other countries almost all other countries if I may say so, any breach of privilege of the House is punished by the courts and therefore, the point I am making is that the procedure followed in the Privilege Committee is very important. The law of privileges, as I said is a G form of criminal law and I was making this point that excepting the House of Commons and here - we have taken the precedents and conventions from the House of Comnions - in regard to all other Parliaments this offence or the contempt of the House or the breach of privilege of the House is punished by the courts and therefore, essentially the law of privileges is a form of criminal law and often

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 477

a citizen and his Fundamental Rights may clash with the concepts of the dignity of the House and the Legislatures, their committees and Members. The essence of criminal law is that it is easily ascertainable. The law of privileges on the other hand is bound to remain vague and somewhat uncertain unless codified. And here, it has not been codified except in Rule 222. Whereas in India following the British practices the House itself judges the matter it is important to ensure that the strictest judicial standards and judicial procedures are followed. This is very important because my point is that in the Privileges Committee the deliberations were neither judicial nor impartial nor objective, and they did not follow any established rules of procedure for even the principles of equity c and natural justice. They were not applied in dealing with this matter in the case of Mrs. Gandhi and the two officers and the principal that justice should not only be done but also seem to have been done is totally lacking in this case. Nothing that smacks of political vendetta should be allowed to cloud a judgment as even D the slightest suspicion of the Committee of Privileges of the House acting on political consideration or on the strength of the majority ') party etc. may tend to destroy the sanctity and value of the privileges of the Parliament.

Now, I am dealing only with the deliberations of the Committee. E When the matter comes before House, then I will come with it separately. In that, political vendetta governed the Members of the Committee. If you take the previous precedents eithf'.1" here in this Parliament, or in the House of Commons or in other Parliaments, you will find that the decisions of the Privileges Committee were F unanimous. They are not on party lines. But in this particular case, not only the decisions were on party lines, but there were as many as 6 or 7 Notes many of them were votes~issent though they were not called as such because this is anot r matter which I want to refer quoting: "Under the Directions of the Speaker" 'there shall be no Minute of Dissent to the report of a parliamentary committee G - this is a parliamentary committee - 'except the select committee'. In a Select Committee or a Joint Select Committee Minutes of --f Dissent are appended. In other parliamentary committees - the Privileges Committee is a parliamentary committee- under Direction 68(3), "There shall be no minute of dissent to the report". H

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

A The idea is that the deliberations in these committees should be objective, impartial and should not be carried on party or political lines. In this matter there are as many as six notes - they are called 'notes' because they cannot be minutes of dissent and four of them have completely differed, totally different with the findings of the Committee. Seven Members were from the ruling B party. This reflects the composition of the Committee. They have taken one line. I will come to that point later when I deal with the matter, how the matter was adopted in the House. How it was taken + and how political and party considerations prevailed. That is against the spirit and law of Parliamentary Privileges. In the c Committee foo, Mrs. Gandhi said that the whole atmosphere is political and partisan, the Members of the Privileges Committee, the Members of the ruling party, the Janata Party have been totally guided by a vindictive attitude, an attitude of vendetta or vengeance or revenge to put her in prison or to punish her." D xxxx xxxx xxxx

"Rule 72 of the Rules of Procedure is only, as I said earlier, an enabling provision inasmuch as the Committee of Privileges may administer an oath or affirmation to a witness. It does not mean that every witness is bound to take an oath. In any case, it does not apply to an accused. Every accused must be given the fullest opportunity of self-defence. He should be allowed to be represented before the Committee by a counsel of his or her choice to lead evidence and to cross-examine witnesses and, further, the benefit of doubt must go to an accused. This is the law.

Earlier, in the Mudgal case, we have a precedent. The Committee of the House gave an opportunity to the accused. He was allowed the services of a counsel, to cross-examine witnesses, to present his own witnesses and to lead his defence through his counsel. The Committee was also assailed by the Attorney-General throughout the examination of the matter. This was not given to Mrs. Indira Gandhi. This also clearly indicates the motivations in the Privileges Committee.

H Again, the punishment for a breach of privileges in recent

' ·~ RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 479

,,.., ... times, this maximum punishment, this double punishment of A expulsion and imprisonment, is unheard of an unprecedented. The recent trend all over the world is that the House takes as few cases of privilege as possible. The minimum punishment is that of either reprimand or admonition. In this matter also, the majority decision of the Privileges Committee showed a bias or rather a vendetta." B

309. Mr. A.K. Sen, in his speech was more concerned about the fairness of the procedure that had been adopted by the Committee on Privileges before ordering expulsion of Mrs. Gandhi and others. He stated as under :- c "I remember when Charles the First was arraigned before the court which was set up by the Cromwell's Government, at the end of the trial, he was asked whether he had anything to plead by way of defence. The famous words he uttered were these. I do not think I can repeat them word by word, but I would repeat the substance. He said "To whom shall I plead my defence? I only find accusers and no Judges". So this is what happened when Mrs. Gandhi appeared before this august Committee. Excepting a few who had the courage to record their notes of dissent, the minds of the rest had already been made up. This is very clear from the utterances which came from them outside the Parliament, before and after the elections and from the way they were trying to manipulate the entire matter."

xxxx xxxx xxxx

- t: F "Sir, the Supreme Court in a series of decisions started from Sharma 's case laid down very clearly that the privileges cannot violate the Fundamental rights of a citizen. Therefore, if a citizen has the right not to be a witness against a sin or not to be bullied > into cross-examination, then that right cannot be taken away in the name of a privilege. You can convict her or you can verdict him by G only evidence, but not by her own hand. Our law forbids a person to be compelled to drink a cup of poison. The Plutonic experiment would not be tolerated under our laws. No accused can be said: 'You take the cup of poison and swallow it.' He has to be tried and he has to be sentenced according to the law." H

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

A 310. Mr. Jagan Nath Kaushal also referred to the case of Hardwari Lal and then said :-

"When Mrs. Gandhi's case was before the Parliament, that judgment was in the field. But nobody just cared to look at that. The reason is obvious, and the reason has been given by the friends who have B spoken. The reason is, we had a pre-determined judge who was not in a mood to listen to any voice of reason and I say it is a very sad day when we have to deal with pre-determined judges. I can understand a judge not knowing the law, but it is just unthinkable + that a judge should come to the seat of justice with a pre- c determined mind to convict the person who is standing before him in the capacity of an unfortunate accused. It is the negation of notions of justice. Therefore, what happened at that time was that not only Mrs. Gandhi was punished with imprisonment, but she was also expelled."

D 311. The resolution adopted on 19th December 1978 by the 6th Lok Sabha was rescinded on 7th May 1981 by the 7th Lok Sabha that adopted the following resolution:-

(a) the said proceedings of the Committee and the House shall not ~· .. constitute a precedent in the law of parliamentary privileges; E (b) the findings of the Committee and the decision of the House are inconsistent with and violative of the well-accepted principles of the law of Parliamentary privilege and the basic safeguards assured to all enshrined in the Constitution; and

F (c) Smt. Indira Gandhi, Shri R.K. Dhawan and Shri D. Sen were innocent of the charges leveled against them.

And accordingly this House:

Rescinds the resolution adopted by the Sixth Lok Sabha on the G 19th December, 1978."

312. It is the argument of the learned counsel f()r petitioners that the resolution adopted on 7th May 1981 by Lok Sabha clearly shows that resort to expulsion of a sitting elected member of the House was against H parliamentary rules, precedents and conventions and an act of betrayal of

.... ~ RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 481

'" the electorate and abuse by brute majoritarian forces. In this context, the A " learned counsel would point out that reference was made ·repeatedly in the course of debate by the Members of Lok Sabha, to the majority view of Punjab & Haryana High Court in the case of Hardwari Lal. The learned counsel would submit that Lok Sabha had itselfresolved that the proceedings of the Privileges Committee and of the House in the case of expulsion of Mrs. Gandhi shall not constitute a precedent in the law of parliamentary B 4 privileges. They argue that in the teeth of such a resolution, it was not ~ permissible for the Parliament to have again resolved in December 2005 to expel the petitioners from the membership of the two Houses.

313. In our considered view, the opinion expressed by the Members of c Parliament in May 1981, or for that matter in December 1978, as indeed in June 1951 merely represent their respective understanding of the law of privileges. These views are not law on the subject by the Parliament in exercise of its enabling power under the second part of Article 105(3). It cannot be said, given the case of expulsion of Mudgal in 1951, that the parliamentary practice in India is wholly against resort to the sanction of expulsion for breach of privileges under Article 105 . . .,,"-

314. On the question whether power of expulsion exists or not, divergent views have been expressed by learned members in the Parliament. These views deserve to be respected but on the question whether there exists power of expulsion is a matter of interpretation of the constitutional provisions, in particular Article 105(3) and Article 194(3) on which the final arbiter is this Court and not the Parliament.

Judicial Review - Manner of Exercise - Law in England ,t F < 315. Having held that the power of expulsion can be claimed by Indian legislature as one of the privileges inherited from the House of Commons

- through Article 105(3), the next question that arises is whether under our jurisprudence is it open to the Court to examine the manner of exercise of the said power by Parliament as has been sought by the petitioners. G

316. The learned counsel for Union of India, as indeed the learned t-.-. ·' Additional Solicitor General, were at pains to submit that the matter falls ,'-r within the exclusive cognizance of the legislature, intrusion wherein for (

purposes of judicial review of the procedure adopted has always been H

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

A consistently avoided by the judicature in England from where the power of expulsion has been sourced as also expressly prohibited by the constitutional provisions.

317. The principal arguments on behalf of the Union of India and of the learned Additional Solicitor General on the plea of ouster of the court's

- B jurisdiction is that in essence, the position with regard to justiciability of exercise of Parliamentary privilege is exactly the same in India as what exists in England. As seen in Bradlaugh v. Gossett, Courts in England have recognized the Parliamentary Privilege of exclusive cognizance over its own + proceedings, whereby Courts will examine existence of a privilege but will c decline to interfere with the manner of its exercise.

318. The contention of the petitioners, on the other hand, is that the arguments opposing the judicial review ignore both the impact in the Indian context of existence of a written Constitution, as well as the express provisions thereof. It has been submitted that the English decisions, including D Bradlaugh, cannot be transplanted into the Indian Constitution and are irrelevant as the position of Parliament in the United Kingdom is entirely different from that of the Indian Parliament which is functioning under the ..,~" Constitution and powers of which are circumscribed by the Constitution, which is supreme and not the Parliament. E

319. Against the backdrop of challenge to the jurisdiction of the court to examine the action of the legislature in the matter arising out of its privilege and power to punish for contempt, this court in the case of UP Assembly took note of the law laid down in a series of cases that came up in England during the turbulent years of struggle of House of the Commons F to assert its privileges. {Earl of Shaftesbury (86 E.R. 792), Ashby v. White -;;- [(1703-04) 92 E.R. 129], R. v. Paty [(1704) 92 E.R. 232], Case ofMurray(95 E.R. 629), Case ofBrass Crosby (95 E.R. 1005), Case ofSir Francis Burdett (104 E.R. 501), Cases ofStockdale (1836-37), Howardv. Sir William Gosset (116 E.R. 139) and Bradlaugh v. Gossett, [1884] L.R. 12 Q.B.D. 271 }. G

320. The learned counsel for Union of India quoted extensively from the judgment in Bradlaugh, mainly the passages mentioned hereinafter.

321. Lord Colridge CJ observed at page 275 thus:- '+" H " ............... there is another proposition equally true, equally well

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 483

established, seems to be decisive of the case before us. What is A said or done within the walls of Parliament cannot be inquired into in a court of Jaw. On this point all the judges in the two great cases which exhaust the learning on the subject, - Burdett v. Abbott (14 East, l, 148) and Stockdale v. Hansard (9 Ad. & E.l); - are agreed, and are emphatic. The jurisdiction of the Houses over their own B

- members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, "They would sink into utter contempt and inefficiency without it". (14 East, at p.152.)"

322. Stephen J., at page 278, was categorical in his view that "the C House of Commons is not subject to the control of her Majesty's courts in its administration of that part of the statute - law which has relatio_n to its own internal proceedings" and referred in this context to the following:-

"Blackstone says (I Com.163): "The whole of the Jaw and custom of Parliament has its original form this one maxim, 'that whatever D matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere." This principle is re-stated nearly in Blackstone's words by each of the judges in the case of Stockdale v. Hansard. (9 Ad. & E. l.)" E Then, at page 279, Stephen J. copiously quoted from Stockdale as under:-

"Lord Denman says (9 Ad. & E. at p. 114) "Whatever is done within the walls of either assembly must pass without question in any other place." Littledale, J. says (At p.162) : "It is said the House of commons is the sole judge of its own privileges; and so I admit as far as the proceedings in the House and some other things are concerned." Patteson, J. said (at p. 209) "Beyond all dispute, it is necessary that the proceedings of each house of Parliament should be entirely free and unshackled that whatever is said or done in either House should not be liable to examination elsewhere." And Coldridge, J. said (at p.233) : 'That the House should have exclusive jurisdiction to regulate the course of its own proceedings and animadvert upon any conduct there in violation of its rules er H

484 SUPREME COURT REPORTS [2007] I S.C.R • --..t:

t A derogation from its dignity, stands upon the clearest grounds of necessity." ~·

... Further, at page 285 Stephen J. observed thus:-

"I do not say that the resolution of the House is the judgment of B a Court not subject to our revision; but it has much in common with such a judgment. The House of Commons is not a Court of Justice; but the effect of its privilege to regulate its own internal concerns practically invests it with a judicial character when it has to apply to particular cases the provisions of Acts of Parliament. We must c presume that it discharges this function properly and with due regard to the laws, in the making of which it has so great a share. If its determination is not in accordance with law, this resembles the case of an error by a judge whose decision is not subject to appeal." (Emphasis supplied) D

325. On the basis of appraisal of the law in the aforementioned series •- - __!f ..,._,.. of cases, this court summarized the position in the law of England on the question of jurisdiction of the court in matters arising out of contempt jurisdiction of the legislature, in the following words at page 482:- E "I 08. Having examined the relevant decisions bearing on the point, it would, we think, not be inaccurate to observe that the right claimed by the House of Commons not to have its general warrants examined in habeas corpus proceedings has been based more on the consideration that the House of Commons is in the position F j- of a superior ,Court of Record and has the right like other superior courts of record to issue a general warrant for commitment or persons found guilty of contempt. Like the general warrant issued by superior courts of record in respect of such contempt, the general warrants issued by the House of Commons in similar situations should be similarly treated. It is on that ground that the general warrants issued by the House of Commons were treated beyond the scrutiny of the courts in habeas corpus proceedings. In this connection, we ought to add that even while recognising '."":)._

the validity of such general warrants, Judges have frequently observed that if they were satisfied upon the return that such . '

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 485

general warrants were issued for frivolous or extravagant reasons, it would be open to them to examine their validity. "

(Emphasis supplied)

326. The case of Prebble has been mentioned earlier. The observations of Privy Council (at page 976 and 980 of the judgment) have been extracted in earlier part of this judgment. They have been referred to by the learned counsel for Union of India for present purposes as well. The principle of law and practice that the courts will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its c - legislative functions and protection ofits established privileges was reiterated in this case on the basis of, amongst others, the cases of Burdett, Stockdale and Bradlaugh.

327. Learned counsel for Union of India and learned Additional Solicitor General, submit that in the case of UP Assembly, this court was D dealing mainly with the powers of the courts under Article 32 and 226 of the Constitution of India to entertain petitions challenging legality of committal for contempt of State legislature on the grounds of breach of fundamental rights of non-members. The learned counsel drew our attention to certain observations made, at page 481-482 of the judgment, which read as under:- E "Mr. Seervai's argument was that though the resolution appeared to constitute an infringement of the Parliamentary Oaths Act, the Court refused to give any relief to Bradlaugh, and he suggested that a similar approach should be adopted in dealing with the present dispute before ·us. The obvious answer to this contention F is that we are not dealing with any matter relating to the internal management of the House 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." G (Emphasis supplied)

328. The submission of the learned counsel is that the view in Bradlaugh that matters of internal management were beyond the purview of judicial scrutiny had been followed. This, according to the learned counsel, H

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

A has been the consistent view of this court, as can be seen from the cases of Indira Nehru Gandhi v. Raj Narain [1975 Supp SCC I] and P. V. Narasimha Rao v. State (CBI/SPE) [(1998) 4 SCC 626]. Both the judgments referred to the law in Bradlaugh, the case of P. V. Narsimha Rao also quoted with approval Stockdale. In the case of Indira Nehru Gandhi, the court took note, in Para 70, of the law in Bradlaugh, in the following words:- B " ....... .It was held that the Court had no power to restrain the executive officer of the House from carrying out the order of the House. The reason is that the House. is not subject to the control of the courts in the administration of the internal proceedings of the c House." '

329. Learned counsel for Union of India also sought strength from the following observation appearing at page 468:-

" .......... On the other hand, the courts have always, at any rate in the D last resort, refused to interfere in the application by the House of any of its recognized privileges (May's Parliamentary Practice, pp. 173-74).........."

330. In our view, the above observation of this court in the case of UP E Assembly, paraphrasing the position of law and practice in England on the authority of May's Parliamentary Practice, refers to enforcement by the legislature of privileges which had been recognized by the courts. The. observation has no relevance on the question under consideration in these matters since the law in England of exclusive cognizance has no applicability in India which is governed and bound by the Constitution of India.

Parliamentary privileges vis-a-vis Fundamental Rights

331. Before consideringjudicial review in Indian context, it is appropriate to first examine this aspect. In the face of arguinents of illegalities in the procedure and the breach of fundamental rights, it has been strongly contended on behalf of the Union of India that Parliamentary privileges cannot be decided against the touchstone of other constitutional provisions, in general, and fundamental rights, in particular.

H 332. In this context, again it is necessary to seek enlightenment from

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 487

the judgments in the two cases of Pandit Sharma as also the UP Assembly A f- case where breach of fundamental rights had been alleged by the persons facing the wrong end of the stick.

333. In the case of Pandit Sharma(!), one of the two principal points canvassed before the Court revolved around the question as to whether the privilege of the Legislative Assembly under Article 194 (3) prevails over the B fundamental rights of the petitioner (non-member in that case) under Article " ~ 19(l)(a). This contention was sought to be supported on behalf of the petitioner through a variety of arguments including the plea that though " clause (3) of Article 194 had not, in terms, been made "subject to the provision of the Constitution" it would not necessarily mean that it was not c so subject, and that the several clauses of Article 194, or Article 105, should not be treated as distinct and separate provisions but should be read as a whole and that, so read, all the clauses should be taken as subject to the provisions of the Constitution which would include Article 19(l)(a). It was also argued that Article 194 (1 ), like Article 105 (I), in reality operates as an D abridgement of the fundamental rights of freedom of speech conferred by Article 19(1) (a) when exercised in Parliament or the State Legislature, as the

' case may be, but Article 194 (3) does not purport to be an exception to Article 19(1) (a). It was then submitted that Article 19 enunciates a transcendental principle and confers on the citizens of India indefeasible fundamental rights of a permanent nature while the second part of Article E 194 (3) was of the nature of a transitory provision which, from its very nature, could not override the fundamental rights. Further, the contention raised was that if in pursuance of Article 105 (3), Parliament were to make a law under entry 74 in List I to the Seventh Schedule defining the powers, privileges and immunities of the Houses of Parliament and if the powers, F -t privileges and immunities so defined were repugnant to the fundamental rights of the citizens, such law will, under Article 13, to the extent of such repugnancy be void and this being the intention of the Constitution-makers and there being no apparent indication of a different intention in the latter part of the same clause, the powers & privileges of the House of Commons conferred by the latter part of clause (3) must also be taken as subject to G the fundamental rights.

334. The arguments of the petitioner to above effect, however, did not -~ find favour with the Court. It was, inter alia, held that the subject matter of each of the four clauses of Article 194 (which more or less correspond H

,, 488 SUPREME COURT REPORTS [2007] l S.C.R.

A to Article 105) was different. While clause (I) had been expressly made , -\ subject to the provisions of the Constitution, the remaining clauses had not been stated to be so subject, indicating that the Constitution makers did not intend clauses (2) to (4) to be subject to the provisions of the Constitution. It was ruled that the freedom of speech referred to in clause (1) was different "- { from the freedom of speech and expression guaranteed under Article 19 (1) B (a) and the same could not be cut down in any way by any law contemplated by Article 19 (2). While agreeing with the proposition that a law made by ""?

Parliament in pursuance of the earlier part of Article l 05 (3) would not be -r- ' a Jaw made in exercise of constituent power but would be one made in i'

exercise of ordinary legislative powers under Article 246 read with the c relevant entries of the Seventh Schedule and that consequently if such a law takes away or abridges any of the fundamental rights, it would contravene the peremptory provisions of Article 13 (2) and would be void to the extent of such contravention, it was observed that this 4id not lead to the conclusion that ifthe powers, privileges or immunities conferred by the latter part of the said Article are repugnant to the fundamental rights they must also be void to the extent of repugnancy. It was pointed out that it "must not be overlooked that the provisions of Article 105 (3) and Article 194 (3) !(. are constitutional laws and not ordinary laws madt! by Parliament or the ,..;. State Legislatures and that, therefore, they are as supreme as the provisions of Part III". Interestingly, it was also observed in the context of amenability of a law made in pursuance of first parts of Article 105(3) and Article 194(3) ~· to the provisions of Article 13(2) that "it may well be that that is perhaps the reason why our Parliament and the State Legislatures have not made any law defining the powers, privileges and immunities .......... " J.-

F 335. On the basis of conclusions so reached, this Court reconciled the conflict between fundamental right of speech & expression under Article ;;. 19(1)(a) on one hand and the powers and privileges of the Legislative Assembly under Article 194(3) on the other by holding thus:-

,; "The principle of harmonious construction must be adopted and so G construed, the provisions of Art.19(1 )(a), which are general, must yield to Art.194( I) and the latter part of its cl. (3) which are special"

336. Pandit Sharma had also invoked Article 21 to contend that the proceedings before the Committee of Privileges of the Legislative Assembly H threatened to deprive him of personal liberty otherwise than in accordance

t RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 489

)_ with the procedure established by law. This Court, however, found that the A Legislative Assembly had framed rules of procedure under Article 208 and, therefore, if the petitioner was eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges, such deprivation would be in accordance with the procedure established by law and, therefore, a complaint of breach of fundamental rights urider Article 21 could not be made. The Court then proceeded to examine the case to test B the contention that the procedure adopted by the Legislative Assembly was ' -+- not in accordance with the standing orders laying down the rules of ~ procedure governing the conduct of its business made in exercise of powers under Article 208. c

337. It is not possible to overlook developments in law post Pandit Sharma, including UP Assembly case.

338. In the course of addressing the issues raised in the case of UP Assembly, this court had the occasion to examine both parts of clause (3) ·• of Article 194. Article 194 (1) provides "freedom of speech" in the legislature, D -~' though subject to provision of the Constitution and to the rules and standing orders regulating the procedure of the House in question. Article 194 (2) creates an absolute immunity, in favour of members of the legislature, against liability to any proceedings in any court in respect of anything said or any vote given by them in the legislative body or any committees thereof. E The first part of the clause (3) empowers the legislature to define "by law" the powers, privileges and immunities of the House, its members and the committees thereof, in respect other than those covered by the earlier two clauses of Article 194. "t F

339. While construing the effect of the expression "subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the legislature" as used in Clause ( 1) of Article 194 which has been omitted in the remaining clauses of the said Article, at page 443 this court observed as under:- G "It will thus be seen that all the 4 clauses of the Article 194 are not in terms made subject to the provisions contained in Part III. In fact, clause (2) is couched in such wide tenns that in exercising the rights conferred on them by cl.(l), if the legislators by their speeches contravene any of the fundamental rights guaranteed by H

t 490 SUPREME COURT REPORTS [2007] l S.C.R.

A Part JII, they would not be liable for any action in any court. Nevertheless, if for other valid considerations, it appears that the contents of cl.(3) may not exclude the applicability of certain relevant provisions of the Constitution, it would not be reasonable to suggest that those provisions must be ignored just because the said clause does not open with the words "subject to the other B provisions of the Constitution." In dealing with the effect of the provisions contained in cl. (3) of Art. 194, wherever it appears that there is a conflict between the said provisions and the provisions + ~ pertaining to fundamental rights, an attempt will have to be made to resolve the said conflict by the adoption of the rule of harmonious c construction"

(Emphasis supplied)

340. Reiterating the view taken in Pandit Sharma (!), it was observed D at page 452 as under:-

" ......... .It is true that the power to make such a law has been '+ conferred on the legislatures by the first part of Article 194(3); but when the State Legislatures purport to exercise this power, they will undoubtedly be acting under Article 246 read with Entry 39 of List E IL The enactment of such a law cannot be said to be in exercise of a constituent power, and so, such a law will have to be trt:ated as a law within the meaning of Article 13. That is the view which the majority decision expressed in the case of Pandit Sharma [(1959) Supp. 1 SCR 806], and we are in respectful agreement with that view."

341. This was reiterated yet again at page 497 of the said judgment in the following words:-

" ............................ that is one reason why the Constitution-makers thought it necessary that the legislatures should in due course enact laws in respect of their powers, privileges and immunities, because they knew that when such laws are made, they would be subject to the fundamental rights and would be open to examination by the courts in India. Pending the making of such laws, powers, privileges and immunities were conferred by the latter part of

t RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 491

Article 194(3). As we have already emphasised, the construction of this part of the article is within the jurisdiction of this Court, and in construing this part, we have to bear in mind the other relevant and material provisions of the Constitution." (Emphasis supplied)

342. In the case of UP Assembly, this Court observed that the general issue as to the relevance and applicability of all the fundamental rights guaranteed by Part III had not been raised in the case of Pandit Sharma inasmuch as contravention ofonly Article 19 (l) (a) and Article 21 had been pleaded, therefore, it had not become necessary to consider the larger issue as to whether the latter part of Article 194 (3) was subject to the fundamental c rights in general. It was held that in view of the majority opinion in case o::.' Pandit Sharma (!), "it could not be said that the said view excluded the application of all fundamental rights, for the obvious and simple reason that Article 21 was held to be applicable and the merits ~f the petitioner's argument about its alleged contravention in his cases were examined and D rejected." The following observations appearing at p.451 in the case of UP Assembly are instructive and need to be taken note of:- ' •.

"Therefore, we do not think it would be right to read the majority decision as laying down a general proposition that whenever there is a conflict between the provisions of the latter part of Article E 194(3) and any of the provisions of the fundamental rights guaranteed by Part Ill, the latter must always yield to the former. The majority decision, therefore, must be taken to have settled that Article 19(/)(a) would not apply, and Article 21 would" F (Emphasis supplied)

343. The Court proceeded to examine the applicability of Article 20 to the exercises of power and privilege under Article 194 (3) and the right of the citizen to approach this Court for redressal under Article 32. In this context, in Para 125 (at pages 492-93), it was held:- G

" ..........If Article 21 appl~es, Article 20 may conceivably apply, and the question may arise, if a citizen complains that his fundamental right had been contravened either under Article 20 or Article 2 J, can he or can he not move this Court under Article 32? For the H

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

A purpose of making the point which we are discussing, the applicability of Article 21 itself would be enough. If a citizen moves this Court and complains that his fundamental right under Article 21 had been contravened, it would plainly be the duty of this Court to examine the merits of the said contention, and that inevitably raises the question as to whether the personal liberty of B the citizen has been taken away according to the procedure established by law. In fact, this question was actually considered by this Court in the case of Pandit Sharma {1959] Supp. 1 SCR +-

806. It is true that the answer was made in favour ofthe legislature: but that is wholly immaterial for the purpose of the present c discussion. If in a given case, the allegation made by the citizen is that he has been deprived of his liberty not in accordance with law, but for capricious or ma/a fide reasons, this Court will have to examine the validity of the said contention, and it would be no answer in such a case to say that the warrant issued against the citizen is a general warrant and a general warrant must stop aII D further judicial inquiry and scrutiny. In our opinion, therefore, the impact of the fandamental constitutional right conferred on Indian citizens by Article 32 on the construction of the latter part of + Article 194(3) is decisively against the view that a power or privilege can be claimed by the House, though it may be E inconsistent with Article 21. In this connection, it may be relevant to recall that the rules which the House has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution under Article 208(1)."

(Emphasis supplied) F

344. The hollowness of the proposition of total immunity of the action of the legislatures in such matters is brought out vividly in the following words:-

G "........ .It would indeed be strange thdt the Judicature should be authorised to consider the validity of the legislative acts of our legislatures, but should be prevented from scrutinising the validity of the action of the legislatures trespassing on the fandamental rights conferred on the citizens. " (Emphasis supplied) H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL CJ.] 493

345. Referring to the above observations the learned Additional Solicitor A General submitted that this observation may be relevant to Article 21 in the limited context but cannot be applied to all the fundamental rights. It is the contention of the learned counsel for Union of India and the learned Additional Solicitor General that the case of UP Assembly was restricted to the consideration of the exclusiveness of the right of the Legislative Assembly to claim a general warrant issued by it in respect of its contempt alleged to have been committed by a citizen who was not a member of the House outside the four-walls of the House and to the jurisdiction of the High Court to entertain a Habeas Corpus petition on the allegations of breach of fundamental rights of the said citizen. The learned counsel would point out that the majority judgment in the course of setting out its conclusions pre-faced its answer with the observation that "the answer is confined to cases in relation to contempt alleged to have been committed by a citizen who is not a member of the House outside the four-walls. of the legislative chamber". The submission of the learned counsel is that the Court in the said case had deliberately omitted reference to infringement of privileges and immunities of the Legislature other than those with which it was concerned in the said matter and, therefore, the views taken with regard to applicability of Article 20 or Article 21 could not be taken as law settled.

346. The learned counsel for Union of India further submitted that in exercise of the privileges of the House to regulate its own proceedings including the power to expel a member, it does not engage Article 14 or Article 19. He referred to the judgment of Canada Supreme Court in New Brunswick Broadcasting Corporation v. Nova Scotia Speaker, [1993] 1 SCR 391, in particular, the observations (page 373) to the following effect:- F "It is a basic rule, not disputed in this case, that one part of the Constitution cannot be abrogated or diminished by another part of the Constitution: Reference re Bill 30, An Act to amend the EducationAct(Ont.), [1987] 1SCR1148. Soiftheprivilegetoexpel strangers from the legislative assembly is constitutional, it cannot be abrogated by the Charter, even if the Charter otherwise applies G to the body making the ruling. This raises the critical question: is the privilege of the legislative assembly to exclude strangers from its chamber a constitutional power?"

34 7. He also referred to the judgment of Canada Supreme Court in the H

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

A case of Harvey v. New Brunswick, [1996] 2 SCR 876 and referred in particular to observations at pages 159 and 162 as under:-

"This is not to say that the courts have no role to play in the debate which arises where individual rights are alleged to conflict with parliamentary privilege. Under the British system of B parliamentary supremacy, the courts arguably play no role in monitoring the exercise of parliamentary privilege. In Canada, this , has been altered by the Charter's enunciation of values which may +'. in particular cases conflict with the exercise of such privilege. To prevent abuses cloaked in th; guise of privilege from trumping c legitimate Charter interests, the courts must inquire into the legitimacy of a claim of parliamentary privilege. As this Court made clear in New Brunswick Broadcasting, the courts may properly question whether a claimed privilege exists. This screening role means that where it is alleged that a person has been expelled or disqualified on invalid grounds, the courts must determine whether the act falls within the scope of parliamentary privilege. If the Court concludes that it does, no further review lies."

xxxx xx xx ·xxxx

E "The authorities establish that expulsion from the legislature of members deemed unfit is a proper exercise of parliamentary privilege. Regarding the British House of Commons, Erskine May, supra, wrote that,"[n]o power exercise by the Commons is more undoubted than that of expelling a member from the house, as a punishment for grave offences" (p. 58). In Canada, J. G. Bourinot, in F Parliamentary Procedure and Practice in the Dominion of Canada (2nd Ed. 1892), at pp. 193-94, affirmed the same rule."

(Emphasis supplied)

G 348. We may note that observations made by Canadian Supreme Court in House ofCommons v. Vaid, [2005] 1 SCR 667, show that even in Canada, the approach is on change. In Vaid, it is observed that "over the years, the assertion of parliamentary privilege has varied in its scope and content". Further, the court comments that much more recently the Speaker in Canada H stated "In my view, parliamentary privilege does not go much beyond the

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 495

right of free speech in the House of Commons and the right of a member to discharge his duties as a member of the House of Commons" (page 682). Be that as it may, in our considered opinion, the law laid down by the Supreme Court of Canada has to be construed in the light of Constitutional and statutory provisions in vogue in that jurisdiction and have no relevance here in as much as it has already been settled in the aforementioned cases by this Court that the manner of enforcement of privilege by the legislature can result in judicial scrutiny on the touch-stone of Articles 20 or 21, though subject to the restrictions contained in the other Constitutional provision, for example Article 212 ( 1) in the case of legislative assembly of the State (corre.;;ponding to Article 122 in the case of Parliament). c

349. We are unable to accept the argument of the learned Counsel for Union of India for the simple reason that what this Court "deliberately omitted" to do in the case of UP Assembly was consideration of the powers, • privileges and immunities other than the contempt jurisdiction of the Legislature. The views expressed as to the applicability of Article 20 and D Article 21 in the context of manner of exercise of the powers and privileges of the Legislative Assembly are of general import and cannot be wished away. They would hold good not merely against a non-member as was the case in that Reference but even against a member of the Legislature who also is a citizen of this country and entitled to the protection of the same fundamental rights, especially when the impugned action entails civil E consequences.

350. In the light of law laid down in the two cases of Pandit Sharma and in the case of UP Assembly, we hold that the broad contention on behalf of the Union oflndia that the exercise of Parliamentary privileges cannot be - --t F decided against the touchstone of fundamental rights or the constitutional provisions is not correct. In the case of Pandit Sharma the manner of exercise of the privilege claimed by the Bihar Legislative Assembly was tested against the "procedure established by Jaw" and thus on the touchstone of Article 21. It is a different matter that the requirements of Article 21, as at the time understood in its restrictive meaning, were found satisfied. The G point to be noted here is that Article 21 was found applicable and the procedure of the legislature was tested on its anvil. This view was followed in the case of UP Assembly which added the enforceability of Article 20 to the fray. H

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

A 351. When the cases of Pandit Sharma and UP Assembly were -\

"27. In A.K. Gopalan v. State of Madras, (1950] SCR 88, per majority, the Constitution Bench had held that the operation of D each article of the Constitution and its effect on the protection of fundamental rights is required to be measured independently and not in conjoint consideration of all the relevant provisions. The above ratio was overruled by a Bench of 11 Judges in Rustom Cavasjee Cooper v. Union of India, (1970] 1SCC248. This Court E had held that all the provisions of the Constitution conjointly be read on the effect and operation of fundamental right of the citizens when the State action infringes the right of the individual. In D. T. C. case (1991 Supp (1) SCC 600](SCC at pp. 750-51, paras297 and298) it was held that: F "It is well-settled constitutional law that different articles in * .. the chapter on Fundamental Rights and the Directive Principles in Part IV of the Constitution must be read as an integral and incorporeal whole with possible overlapping with the subject- . matter of what is to be protected by its various provisions particularly the Fundamental Rights.

.. ..... The nature and content of the protection of the fundamental rights is measured not by the operation of the State action upon the rights of the individual but by its objects. The validity of the State action must be adjudged in

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 497

the light of its operation upon the rights of the individuals ".. or groups of individuals in all their dimensions. It is not the object of the authority making the law impairing the right of the citizen nor the form of action taken that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the, court to grant relief In Minerva Mills Ltd. v. Union of India, B [ 1980] 3 sec 625 the fundamental rights and directive principles are held to be the conscience of the Constitution and disregard of either would upset the equibalance built up therein. In Maneka Gandhi case [1978 1 SCC 248} it was held that different articles in the chapter of fundamental rights of the c Constitution must be read as an integral whole, with possible overlapping of the subject-matter of what is sought to be protected by its various provisions particularly by articles relating to fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters ) must mix to constitute that grand flow of unimpeded and impartial justice; social, economic and political, and of equality of status and opportunity which imply absence of unreasonable or unfair discrimination between individuals or groups or classes. The fundamental rights protected by Part III of the Constitution, out of which Articles 14, 19 and 21 are the most frequently invoked to test the validity of executive as well as legislative actions when these actions are subjected to judicial scrutiny. Fundamental rights are necessary means to develop one's own personality and to carve out one's own life in the manner one likes best, subject to reasonable restrictions imposed in the paramount interest of the society and to a just, fair and reasonable procedure. The effect of restriction or deprivation and not of the form adopted to deprive the right is the conclusive test." G (Emphasis supplied)

352. The enforceability of Article 21 in relation to the manner of -f- exercise of Parliamentary privilege, as afTmned in the cases of Pandit Sharma and UP Assembly has to be understood in light of the expanded H

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A scope of the said fundamental right interpreted a~ above. ~ f

353. It is to be remembered that the plenitude of powers possessed by the Parliament under the written Constitution is subject to legislative competence and restrictions of fundamental rights and that in cass a member's personal liberty was threatened by imprisonment of committal in execution of Parliamentary privilege, Article 21 would be attracted.

354. If it were so, we are unable to fathom any reason why the general proposition that fundamental rights cannot be invoked in matters concerning Parliamentary privileges should be accepted. Further, there is no reason why the member, or indeed a non-member, should not be entitled to the protection of Article 21, or for that matter Article 20, in case the exercise of Parliamentary privilege contemplates a sanction other than that of committal.

Judicial Review - Effect of Article 122

D 355. It is the contention of the learned Counsel for Union of India that it should be left to the wisdom of the legislature to decide as to on what occasion and in what manner the power is to be exercised especially as the Constitution gives to it the liberty of making rules for regulating its procedure and the conduct of its business. He would refer to Article 122 ( 1) E to argue that the validity of proceedings in Parliament is a matter which is expressly beyond the gaze of, or scrutiny by, the judicature. It has been the contention on behalf of the Union of India that the principle of exclusive cognizance of Parliament in relation to its privileges under Article 105 constitutes a bar on the jurisdiction of the Court which is of equal weight F as other provisions of the Constitution including those contained in Part III and, therefore, the manner of enforcement of the privilege cannot be tested -+ .. on the touchstone of other such constitutional provisions, also in view of the prohibition contained in Article 122.

356. The issue of jurisdiction was one of the principal concerns of this . G court in the case of UP Assembly, under the cover of which the Uttar Pradesh Legislative Assembly had asserted its right to commit Keshav Singh for contempt and later had taken umbrage against the entertainment of a petition for habeas corpus in the High Court under Article 226. The main controversy in that case squarely lay in the question as to whether the legislature was "the sole and exclusive judge" of the issue of contempt and

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 499

of the punishment that deserved to be awarded against the contemnor, as against the jurisdiction claimed by the High Court to entertain a writ challenging the validity of the detention of the alleging contemnor.

357. Jn the case of Pandd Sharma (II), while dealing with the questions raised as to the regularity of the procedure adopted by the House of the legislature, this court inter alia observed as under at page 105:- B

" ....... the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the Jaw had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the C contention raised on behalf of the petitioner. No Court can go into those 1uestions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business......."

(Emphasis supplied) D -~ The question of extent of judicial review of Parliamentary matters has to be resolved with reference to the provision contained in Article 122 (I) that corresponds to Article 212 referred to in Pandit Sharma (JI). On a plain reading, Article 122 (I) prohibits "the validity of any proceedings in E Parliament" from being "called in question" in a court merely on the ground of "irregularity of procedure". In other words, the procedural irregularities cannot be used by the court to undo or vitiate what happens within the four walls of the legislature. But then, 'procedural irregularity' stands in stark

- -~ contrast to 'substantive illegality' which cannot be found included in the former. We are of the considered view that this specific provision with F

regard to check on the role of the judicial organ vis-a-vis proceedings in Parliament uses language which is neither vague nor ambiguous and, ·~, therefore, must be treated as the constitutional mandate on the subject, rendering unnecessary search for an answer elsewhere or invocation of principles of harmonious construction. G

359. Article 122 corresponds to Draft Article 101 which was considered by the Constituent Assembly on 23rd May 1949. Though the marginal note of the Article "Courts not to enquire into proceedings of Parliament" clearly indicates the import of the provision contained therein, Mr. H.V. Karnath H

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

A introduced an amendment that the words "in any court" be inserted after the words "called in question" in Clause I. Answering to the debate that had followed, Dr. B.R. Ambedkar intervened and clarified as under:-

"The Honourable Dr. B.R. Ambedkar : Sir, with regard to the amendment of Mr. Karnath, I do not think it is necessary, because B where can the proceedings of Parliament be questioned in a legal manner except in a court? Therefore the only place where the proceedings of Parliament can be questioned in a legal manner end legal sanction obtained is the court. Therefore it is unnecessary to mention the words which Mr. Karnath wants in his c amendment.

For the reason I have explained, the only forum where the proceedings can be questioned in a legal manner and legal relief obtained either against the President or the Speaker or any officer or Member, being the Court, it is unnecessary to specify the D forum. Mr. Karnath will see that the marginal note makes it clear."

(Emphasis supplied)

360. The above indeed was a categorical clarification that Article 122 E does contemplate control by the courts over legality of Parliamentary proceedings. What the provision intended to prohibit thus were cases of interference with internal Parliamentary proceedings on the ground of mere procedural irregularity.

361. That the English cases laying down the principle of exclusive F ~- (

cognizance of the Parliament, including the case of Bradlaugh, arise out of a jurisdiction controlled by the constitutional principle of sovereignty of Parliament cannot be lost sight of. In contrast, the system of governance in India is founded on the norm of supremacy of the Constitution which is fundamental to the existence of the Federal State. Referring to the distinction between a written Federal Constitution founded on the distribution oflimited Executive, Legislative and Judicial authority among bodies which are coordinate with and independent of each other on the one hand and the system of governance in England controlled by a sovereign Parliament which has the right to make or unmake any law whatever, this Court in the case of UP Assembly concluded thus in Paras 39 and 40:-

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 501

"39. Our legislatures have undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists, the legislatures cannot travel. They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution; but the basis of the power is the Constitution itself. Besides, the legislative supremacy of our legislatures including the Parliament is normally controlled by the provisions contained in Part Ill of the Constitution. If the legislatures step beyond the legislative c fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution.

40. In a democratic country governed by ri written Constitution, it is the Constitution which is supreme and sovereign. It is no doubt true that the Constitution itself can be amended by the Parliament, but that is possible because Article 368 of the Constitution itself makes a provision in that behalf, and the amendment of the Constitution can be validly made only by following the procedure prescribed by the said article. That shows that even when the Parliament purports to amend the Constitution, it has to comply with the relevant mandate of the Constitution itself. Legislators, Ministers, and Judges all take oath of allegiance to the Constitution. for it is by the relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to the provisions of the Constitution that they owe allegiance. G Therefore, there can be no doubt that the sovereignty which can be claimed by the Parliament in England cannot be claimed by any legislature in India in the literal absolute sense."

(Emphasis supplied) H

~ 502 SUPREME COURT REPORTS [2007] l S.C.R.

A 362. The submissions of the learned counsel for Union oflndia and the ; ~ learned Additional Solicitor General seek us to read a finality clause in the ~

provisions of Article 122 (l) in so far as parliamentary proceedings are concerned. On the subject of finality clauses and their effect on power of judicial review, a number of cases have been referred that may be taken note of at this stage. B

363. The case of Sub-Committee on Judicial Accountability v. Union ofIndia, [1991] 4 SCC 699, pertained to interpretation of Articles 121and124 r- of the Constitution and of the Judges (Inquiry) Act, 1968. One of the contentions raise~ in that case pertained to the issue as to whether the c question if a motion had lapsed or not was a matter pertaining to the conduct of the business of the House of Parliament of which the House was taken as the sole and exclusive master. It was contended that no aspect of the matter was jusiiciable before a Court since Houses of Parliament are - privileged to be the exclusive arbiters of the legality of their proceedings. Strong reliance, in this context, was placed on the decision in Bradlaugh ,r D which, it was noted, arises out of !}. jurisdiction where exclusiveness of Parliamentary control was covered by a Statute. In this context, the majority ~· view was expressed in the following words by this· Court:-

"61. But where, as in this country and unlike in England, there is l=: E a written Constitution which constitutes the fundamental and in that sense a "higher law" and acts as a limitation upon the legislature and other organs of the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of 'limited government'. Judicial F review is, indeed, an incident of and flows from this concept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authority under the Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State. It is to be noted that the British Parliament with the Crown is supreme and its powers are unlimited and courts have no power of judicial review of legislation.

63. But it is the duty of this Court to interpret the Constitution for the meaning of which this Court is final arbiter.

~· RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 503

'j- 65. The rule in Bradlaugh v. Gossett, [1884]12 QBD 271 : 50 LT 620 A was held not applicable to proceedings of colonial legislature governed by the written Constitutions Barton v. Taylor [(1886) 11 AC 197: 2 TLR 382] and Rediffusion (Hong Kong) Ltd. v. Attorney General of Hong Kong, [1970] AC 1136: [1970] 2 WLR 1264.

364. The touchstone upon which Parliamentary actions within the four- walls of the Legislature were examined was both the constitutional as well as substantive law. The proceedings which may be tainted on account of substantive illegality or unconstitutionality, as opposed to those suffering from mere irregularity thus cannot be held protected from judicial scrutiny F ""1 by Article 122 (l) inasmuch as the broad principle laid down in Bradlaugh acknowledging exclusive cognizance of the Legislature in England has no application to the system of governance provided by our Constitution wherein no organ is sovereign and each organ is amenable to constitutional checks and controls, in which scheme of things, this Court is entrusted with the duty to be watchdog of and guarantor of the Constitution. G

365. Article 217(3) vests in the President of India the jurisdiction to decide the question as to the age of a Judge of a High Court, after --'f- consultation with the Chief Justice of India and declares that the said decision of the President shall be final. Interpreting this finality clause H

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A relatable to the powers of the President, this Court in the case of Union of India v. Jyoti Prakash Mitter, [1971] 1 SCC 396 observed in Para 32 as under:-

"The President acting under Article 217(3) performs a judicial function of grave importance under the scheme of our Constitution. B He cannot act on the advice of his Ministers. Notwithstanding the declared finality of the order of the President the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the Rules of natural justice were not observed, or that the President's judgment c was coloured by the advice or representation made by the executive or it was founded on no evidence."

366. Article 311 relates to the dismissal, removal etc. of persons employed in civil capacities under the Union or a State. The second proviso to Article 311(2) empowers the President or the Governor, as the case may D be, to dispense with the enquiry generally required to be held, upon satisfaction that in the interest of the security of the State it is not expedient to hold such enquiry. Article 311(3) gives finality to such decision in the following manner:-

E "If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final." F

367. Construing the expression "finality" in the aforesaid provision, this Court in Union ofIndia v. Tulsiram Patel, [1985] 3 SCC 398, in Para 138, observed as under:-

" ........ The finality given by clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of malafides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 505

hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) ..... "

368. Article 191 relates to disqualifications for membership of the State Legislature. The authority to decide the questions arising as a result is vested in the Governor whose decision, according to Article 192(1 ), "shall be final".

369. Tenth Schedule was added to the Constitution by the Constitution (52nd Amendment) Act 1985 with effect from 1st March 1985, to provide for detailed provisions as to disqualification on the ground of defection with reference, inter alia, to Article 102(2) that deals with "disqualifications for membership" of Parliament. Paragraph 6(1), amongst others, vests the authority to take a decision on the question of disqualification on ground of defection unto the Chairman of Rajya Sabha or the Speaker of Lok Sabha, as the case may be. This provision declares that the decision of the said authority "shall be final". Interestingly, Para 6 (2) states that all the -~ proceedings relating to decision on the question of disqualification on the ground of defection "shall be deemed to be proceedings in Parliament within the meaning of Article 122".

370. Paragraph 7 of Tenth Schedule contains an express bar of jurisdiction of courts. It reads as under:-

"Bar of jurisdiction of courts. Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House F under this Schedule."

371. It was in the context of these provisions that ques~ions relating to the parameters of judicial review of the exercise of a constitutional power in the face of constitutional bar on the jurisdiction of the Court arose before a Constitution Bench of this Court in the case of Kihoto Hallahan v. G Zachillhu, [1992] Supp 2 SCC 651. The matter was examined by this Court with reference, amongst others, to the immunity under Article 122, exclusivity _f- of the jurisdiction vested in the authority mentioned in the Tenth Schedule and the concept of "finality", in addition to an express bar making it a non- justiciable area. Construing the word "finality" and referring, inter a/ia, to H

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

A interpretation of similar finality clause in Article 217(3) in the case of Jyoti Prakash Mitter and in Article 311 (3) as construed in Tulsiram Patel, this Court held that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule was a judicial power and it was inappropriate to claim that it was within the non-justiciable legislative area. The Court referred to the case of Express Newspaper (P) Ltd. v. Union of India, AIR (1958) SC B 578 and quoted the exposition as to what distinguishes a judicial power from a legislative power in Australian Boot Trade Employees Federation v. Whybrow & Co., [1910) 10 CLR 266 by Is.sacs, J. as under:- +-

"If the dispute is as to the relative rights of parties as they rest c on past or present circumstances, the award is in the nature of a judgment, which might have been the decree of an ordinary judicial tribunal acting under the ordinary judicial power. There the law applicable to the case must be observed. If, however, the dispute is as to what shall in the future be the mutual rights and responsibilities of the parties - in other words, if no present rights are asserted or denied, but a future rule of conduct is to be prescribed, thus creating new rights and obligations, with sanctions for non-conformity - then the determination that so prescribes, call it an award, or arbitration, determination, or decision or what you will, is essentially of a legislative character, and limited only by the law which authorises it. ff, again, there are neither present rights asserted, nor a future rule of conduct prescribed, but merely a fact L '·' ascertained necessary for the practical effectuation of admitted rights, the proceeding, though called an arbitration, is rather in the nature of an appraisement or ministerial act." F (Emphasis supplied)

372. The following observations in the judgment in Kihoto Hollohan need to be quoted in extenso:-