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

G "96. The fiction in Paragraph 6(2), indeed, places it in the first clause of Article 122 or 212, as the case may be. The words "proceedings in Parliament" or "proceedings in the legislature of a State" in Paragraph 6(2) have their corresponding expression in Articles 122(1) and 212(1) respectively. This attracts an immunity from mere irregularities of procedures. H

RAJA RAM PAL v. THE HON'BLE SPEAKER. LOK SABHA [SABHARWAL, CJ.] 507

99. Where there is a /is - an affirmation by one party and denial A by another - and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise ofjudicial power. That authority is called a Tribunal, if it does not have all the trappings of a Court. In Associated Cement Companies Ltd v. PN. Sharma, [1965] 2 SCR 366, this Court said: (SCR pp. 386-87) B

"... The main and the basic test however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State's inherent power exercised in c discharging its judicial function. Applying this test, there can be no doubt that the power which the State Government exercises under Rule 6(5) and Rule 6(6) is a part of the State's judicial power.... There is, in that sense, a lis; there is affirmation by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to it. The order which the State Government ultimately passes is described as its decision and it is made final and binding."

101. In the operative conclusions we pronounced on November 12, 1991 we indicated in clauses (G) and (H) therein that judicial review in the area is limited in the manner indicated. If the adjudicatory authority is a tribunal, as indeed we have held it to be, why, then, should its scope be so limited? The finality clause in Paragraph 6 does not completely exclude the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. Such an action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant considerations. While exercising their certiorari jurisdiction, the courts have applied the test whether the impugned H

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

A action falls within the jurisdiction of the authority taking the action· or it falls outside such jurisdiction. An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such B an action cannot be said to be an action without jurisdiction. An ouster clause attaching finality to a determination, therefore, does oust certiorari to some extent and it will be effective in ousting the power of the court to review the decision of an inferior tribunal by certiorari if the inferior tribunal has not acted without c jurisdiction and has merely made an error of law which does not affect its jurisdiction and if its decision is' not a nullity for some reason such as breach ofrule ofnatural justice. [See: Administrative Law, H WR. Wade, (6th edn.), pp. 724-26;Anisminic Ltd. v. Foreign Compensation Commission, [1969] I All ER 208; S.E. Asia Fire Bricks v. Non-Metallic Mineral Products Manufacturing D Employees Union, [1980] 2 All ER 689 (PC)].

I 09. In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under Paragraph6, the scope ofjudicial review under Articles I 36, and E 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only viz., irifirmities based on violation of constitutional mandate, mala tides, non-compliance with rules of natural justice and perversity. F

111. In the result, we hold on contentions (E) and (F):

That the Tenth Schedule does not, in providing for an additional grant (sic ground) for disqualification and for adjudication of disputed disqualifications, seek to create a G non-justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power.

That Paragraph 6(1) of the Tenth Schedule, to .the extent it seeks to impart finality to the decision of the speakers/

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 509

Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala tides, non-compliance with Rules of Natural Justice and perversity, are concerned. B That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh case to protect the validity of proceedings ji-0111 mere irregularities of procedure. The C deer,;ing provision, having regard to the words 'be deemed to be proceedings in Parliament' or 'proceedings in the legislature of a State' confines the scope of the fiction accordingly.

The Speakers/Chairmen while exercising powers and D discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review."

(Emphasis supplied) E

373. In answer to the above submissions, the learned counsel for Union of India would argue that the actions of Houses of Parliament in exercise of their powers and privileges under Article 105 cannot be subjected to the same parameters of judicial review as applied to other authorities. He F would submit that it was clarified in the case of Kihoto Hallahan that the authority mentioned in the Tenth Schedule was a Tribunal and the proceedings of disqualification before it are not proceedings before the House and thus the decision under Para 6(1) of the Tenth Schedule is not a decision of the House nor is it subject to the approval of the House and rather operates independently of the House. He would submit that the G decision of the House in regulating its own proceedings including in the matter of expulsion of a member for breach of privilege cannot be equated to the decision of such authority as mentioned in the Tenth Schedule and the House in such proceedings is not required to act in a quasi-judicial manner. He would, in the same breath, concede that the House does act H

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

A even in such matters in conformity with rules of natural justice.

374. In our considered view, the principle that is to be taken note of in the aforementioned series of cases is that notwithstanding the existence of finality. clauses, this court exercised its jurisdiction of judicial review whenever and wherever breach of fundamental rights was alleged. President B of India while determining the question of age of a Judge of a High Court under Article 217 (3), or the President of India (or the Governor, as the case may be) while taking a decision under Ai:ticle 31 l (3) to dispense with the +- ordinarily mandatory inquiry before dismissal or removal of a civil servant, or for that matter the Speaker (or the Chairman, as the case may be) deciding C the question of disqualification under Para 6 of the Tenth Schedule may be acting as authorities entrusted with such jurisdiction under the constitutional provisions. Yet, the manner in which they exercised the said jurisdiction is not wholly beyond the judicial scrutiny. In the case of Speaker exercising jurisdiction under the Tenth Schedule, the proceedings before him are declared by Para 6 (2) of the Tenth Schedule to be proceedings in Parliament D within the meaning of Article 122. Yet, the said jurisdiction was not accepted as non-justiciable. In this view, we are unable to subscribe to the proposition that there is absolute immunity available to the Parliamentary proceedings relating to Article I 05(3). It is a different matter as to what parameters, if any, should regulate or control the judicial scrutiny of such proceedings. E

375. In the case of UP Assembly, the issue was authoritatively settled by this Court, and it was held, at pages 455-456, as under:-

"Art.212( I) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber ifhis case is that the said proceedings suffer not from mere irregularity ofprocedure, butfrom an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular."

(Emphasis supplied)

376. With reference to the above-quoted observations recognizing the permissibility of scrutiny in a court of law on allegation that the impugned

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL CJ.] 511

procedure was illegal or unconstitutional, the learned Additional Solicitor A General submitted that these observations need to be clarified and the expression "illegality" must necessarily mean "unconstitutionality", that is violation of mandatory constitutional or statutory provisions.

377. The learned Additional Solicitor General has referred to Tej Kiran Jain V. N. Sanjiva Reddy, [1970] 2 sec 272]. This was a matter arising out of a suit claiming damages for defamatory statement made by the respondent in Parliament. The suit had been dismissed by the High Court of Delhi in view of the immunity from judicial redress as stated in Article 105(2). In this court, the contention urged was that the immunity granted under Article 105(2) was confined to "relevant Parliament business" and not to something which is utterly irrelevant. This contention was rejected by Hidayatullah, C.J. through observations in Para 8 that read as under:-

"8. In our judgment it is not possible to read the provisions of the article in the way suggested. The article means what it says in language which could not be plainer. The article confers immunity inter alia in respect of "anything said ... in Parliament". The word "anything" is of the widest import and is equivalent to "everything". The only limitation arises from the words "in Parliament" which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in E Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any Court this immunity is not only complete but is as it should be. It is of the essence of parliamentary system of Government that people's F ~- representatives should be free to express themselves without fear of legal consequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. The Courts have no say in the matter and should really have none." G

378. The Ld. Additional Solicitor General has also placed reliance on certain observations of this court in Indira Nehru Gandhi v. Raj Narain [ 197 5] Suppl. SCC I, in the context of application of Article 122 on the contentions regarding unconstitutionality of the Constitution (30th Amendment) Act 1975. Beg J. in the course of his judgment in Paras 506 H

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

A & 507 observed as under:-

"506. Article 122 of the Constitution prevents this Court from going into any question relating to irregularity of proceedings "in Parliament".

B xxxx xx xx xxxx

507. What is alleged by the election petitioner is that the opposition members of Parliament, who had been detained under the preventive detention laws, were entitled to get notice of the proposed c enactments and the Thirty-ninth Amendment, so as to be present "in Parliament", to oppose these changes in the law. I am afraid, such an objection is directly covered by the terms of Article 122 which debars every court from examining the propriety of proceedings "in Parliament". If any privileges of members of Parliament were involved, it was open to them to have the question raised "in Parliament". There is no provision of the Constitution which has been pointed out to us providing for any notice to each member of Parliament. That, I think, is also a matter completely covered by Article 122 of the Constitution. All that this Court can look into, in appropriate cases, is whether the procedure which amounts to legislation or, in the case of a constitutional amendment, which is prescribed by Article 368 of the Constitution, was gone through at all. As a proof of that, however, it will accept, as conclusive evidence, a certificate of the Speaker that a Bill has been duly passed. (see: State ofBihar v. Kameshwar, AIR [1952] SC 252, F 266: 1952 SCR889)"

(Emphasis supplied)

379. In the same case construing the effect of the judgment in the case of Pandit Sharma (11), Beg J. observed as under in para 508:- G "508. Again, this Court has held, in Sharma. v. Sri Krishna, AIR (1960) SC 1186, 1189: (1961) 1 SCR 96) that a notice issued by the Speaker of a Legislature for the breach of its privilege cannot be questioned on the ground that the rules of procedure relating to H proceedings for breach of privilege have not been observed. All

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 513

\_ these are internal matters of procedure which the Houses of A ' Parliament themselves regulate."

380. The submission of the Ld. Additional Solicitor General is that the court recognized the inhibition against judicial scrutiny of internal matters of procedure in which the Houses of Parliament can rightfully assert the exclusive power to self-regulate. B

38 l. In our considered view, the question before the court in the case of Indira Nehru Gandhi essentially pertained to the lawfulness of the ' session of Parliament that had passed the constitutional amendment measure. The concern of the court did not involve the legality of the act of the legislative body. As regards the views based on the holding in the case of Pandit Sharma, it has already been observed that it was rather premature for the court to consider as to whether any illegality vitiated the process of the legislative assembly.

382. The prohibition contained in Article 122 (I) does not provide immunity in cases of illegalities. In this context, reference may also be made to the case of Smt. S. Ramaswami v. Union of India, [ 1992] Suppl. l SCR

108. The case mainly pertained to Article 124 (4) read with Judges (Inquiry) Act 1968. While dealing, inter alia, with the overriding effect of the rules made under Article 124(5) over the rules made under Article 118, this court at page 187 made the following observations:-

"We have already indicated the constitutional scheme in India and the true import of clauses(4) and (5) ofarticle 124 read with the law enacted under Article 124(5), m1mely, the Judges (Inquiry) Act, F 1968 and the Judges (Inquiry) Rules, 1969, which, inter alia contemplate the provision for an opportunity to the concerned Judge to show cause against the finding of 'guilty' in the report before the Parliament takes it up for consideration along with the motion for his removal. Along with the decision in Keshav Singh has to be read the declaration made in Sub-Committee on Judicial G Accountability that 'a law made under Article 124(5) will override the rules made under Article 118 and shall be binding on both the Houses of Parliament. A violation of such a law would constitute illegality and could not be immune from judicial scrutiny under Article 122(1) '. The scope .of permissible challenge by the H

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

A concerned Judge to the order of removal made by the President under Article 124(4) in the judicial review available after making of the order of removal by the President will be determined on these considerations ......... "

(Emphasis supplied) B

383. The learned counsel for petitioners would refer, in the above context, to a number of decisions rendered by different High Courts +- adopting a similar approach to construe Article 122 or provisions corresponding thereto in other enactments. c

384. Article 122(1) thus must be found to contemplate the twin test of legality and constitutionality for any proceedings within the four walls of Parliament. The fact that the case of UP Assembly dealt with the exercise of the power of the House beyor:d its four-walls does not affect this view which explicitly interpreted a constitutional provision dealing specifically with the extent of judicial review of the internal proceedings of the legislative body. In this view, Article 122(1) displaces the English doctrine of exclusive cognizance of internal proceedings of the House rendering irrelevant the case law that emanated from courts in that jurisdiction. Any attempt to read a limitation into Article 122 so as to restrict the court's jurisdiction to examination of the Parliament's procedure in case of unconstitutionality, as opposed to illegality would amount to doing violence to the constitutional text. Applying the principle of "expressio unius est exclusio alterius" (whatever has not been included has by implication been excluded), it is plain and clear that prohibition against examination on the touchstone of F "irregularity of procedure" does not make taboo judicial review on findings of illegality or unconstitutionality.

Parameters for Judicial review Re: Exercise of Parliamentary privileges

385. Learned Additional Solicitor General submitted that having regard to the jurisdiction vested in the judicature under Articles 32 and 226 of the Constitution on the one hand and the tasks assigned to the legislature on the other, the two organs must function rationally, harmoniously and in a spirit of understanding within their respective spheres for such harmonious working of the three constituents of the democratic State alone will help the peaceful development, growth and stabilization of the democratic way of life

- RAJA RAM PAL v. THE HON'BLE SPEAKER. LOK SABHA [SABHAR\VAL CJ.] 515

in the country. We are in full agreement with these submissions. A

386. The Additional Solicitor General has further submitted that while having regard to the importance of the functions discharged by Parliament under the Constitution and the majesty and grandeur of its task, it being the ultimate repository of the faith of the people, it must be expected that Parliament would always perform its functions and exercise its powers, B privileges and immunities in a reasonable manner, the reasonableness of the ....... manner of exercise not being amenable to judicial review. His submission is that if Parliament were to exercise its powers and privileges in a manner violative or subversive of, or wholly abhorrent to the Constitution, a limited area of judicial scrutiny would be available, which limited judicial review c would be distinct from the area of judicial review that is available when administrative exercise of power under a statute falls for consideration. His argument is that such limited judicial review is distinct from the exercise of powers coupled with a purpose and also distinct from judicial scrutiny on the ground of mala fides. It is his contention that the cou1ts of judicature in India have the power of judicial review to determine the existence of privilege but once priviiege is shown to exist, the exercise of that privilege and the manner of exercise that privilege must be left to the domain of Parliament without any interference. Further, learned Additional Solicitor General submits that while what takes place within the walls of the Parliament is not available for scrutiny and even when the Parliament deals with matters outside its walls, in a matter supported by an acknowledged privilege, there would be little scrutiny and very limited and restricted judicial review.

387. We find substance in the submission that it is always expected, rather it should be a matter of presumption, that Parliament would always perform its functions and exercise its powers in a reasonable manner. But, at the same time there is no scope for a general rule that the exercise of powers by the legislature is not amenable to judicial review. This is neither the letter nor the spirit of our Constitution. We find no reason not to accept that the scope for judicial review in matters concerning Parliamentary proceedings is limited and restricted. In fact this has been done by express prescription in the constitutional provisions, including the one contained in Article 122(1). But our scrutiny cannot stop, as earlier held, merely on the privilege being found, especially when breach of other constitutional provisions has been alleged. H

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

A 388. It has been submitted by the learned Additional Solicitor General that judicial review is the ability of the courts to examine the validity of action. Validity can be tested only with reference to a norm. He argues that where judicially manageable standards, that is normative standards, are not available, judicial review must be impliedly excluded. He has submitted that Parliament is not a body inferior to the courts. An administrative tribunal in whom statutory jurisdiction has been vested can certainly be subjected to judicial review to discover errors of fact or errors of law within its j_urisdiction, but Parliament cannot be attributed jurisdictional -errors.

389. We find the submissions substantially correct but not entirely correct. Non-existence of standards of judicial review is no reason to conclude that judicial scrutiny is ousted. Jf standards for judicial review of such matters as at hand are not yet determined, it is time to do so now. Parliament indeed is a coordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny. While its acts, particularly of the nature involved here ought not to be tested in the same manner as an ordinary administrative action would be tested, there is no foundation to the plea that a Legislative body cannot be attributed jurisdictional error.

390. The learned Additional Solicitor General would further argue that the exercise of powers and privileges must not be treated as exercise of jurisdiction, but in fact exercise of constituent power to preserve its character. He stated that the Constitution did not contemplate that the contempt of authority of Parliament would actually be tried and punished in a Court of Judicature. He submitted that the frontiers of judicial review have now widened in that illegality, irrationality and procedural impropriety could be causes, but such principles have absolutely no basis in judging Parliament's action.

391. While we agree that contempt of authority of Parliament can be tried and punished nowhere except before it, the judicial review of the mar..ner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature. As has been noticed, in the context of Article 122(1 ), mere irregularity of the procedure cannot be a ground of challenge to the proceedings in Parliament or effect thereof, and while same view can be adopted as to the element of "irrationality", but in our constitutional scheme, illegality or unconstitutionality will not save the

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 517

Parliamentary proceedings. A

392. It is the submission of the learned Additional Solicitor General that the proceedings in question were proceedings which were entitled to protection under Article 105(2). In other words, in respect of proceedings, if a member is offered immunity, Parliament too is offered immunity. The

.. actions of Parliament, except when they are translated into law, cannot be questioned in court . B

393. We find the argument to be founded on reading of Article 105(2) beyond its context. What is declared by the said clause as immune from liability "to any proceedings in any court" is not any or every act of the C Legislative body or members thereof, but only matters "in respect of anything said or any vote given" by the members "in Parliament or any Committee thereof'. If Article 105(2) were to be construed so broadly, it would tend to save even the legislative Acts from judicial gaze, which would militate against the constitutional provisions. D

394. The learned Additional Solicitor General would urge that to view Parliament as a body which is capable of committing an error in respect of its powers, privileges and immunities would be an indirect comment that Parliament may act unwarrantedly. There is every hope that the Indian Parliament would never punish one for 'an ugly face', or apply a principle E which is abhorrent to the constitution.

395. The learned counsel for the petitioners, on the other hand, have submitted that upon it being found that the plenitude of powers possessed by the Parliament under the written Constitution is subject to legislative p competence and restrictions of fundamental rights; the general proposition that fundamental rights cannot be invoked in matters concerning Parliamentary privileges being unacceptable; even a member of legislature being entitled to the protection of Articles 20 & 21 in case the exercise of Parliamentary privilege; and Article 122(1) contemplating the twin test of legality and constitutionality for any proceedings within the four walls of Parliament, as G against mere procedural irregularity, thereby displacing the English doctrine of exclusive cognizance of internal proceedings of the House, the restrictions on judicial review propagated by learned Additional Solicitor General do not deserve to be upheld. H

~' ) 518 SUPREME COURT REPORTS [2007] I S.C.R.

A 396. We are of the view that the manner of exercise of the power or I -<; privilege by Parliament is immune from judicial scrutiny only to the extent ; indicated in Article 122(1 ), that is to say the Court will decline to interfere if the grievance brought before it is restricted to allegations of "irregularity of procedure". But in case gross illegality or violation of constitutional provisions is shown, the judicial review will not be inhibited in any manner B by Article 122, or for that matter by Article I 05. If one was to accept what was alleged while rescinding the resolution of expulsion by the 7th Lok Sabha with conclusion that it was "inconsistent with and violative of the well-accepted principles of the law of Parliamentary privilege and the basic - safeguards assured to all enshrined in the Constitution", it would be c partisan action in the name of exercise of privilege. We are not going into this issue but citing the incident as an illustration.

397. Having concluded that this Court has the jurisdiction to examine the procedure adopted to find if it is vitiated by any illegality or unconstitutionality, we must now examine the need for circumspection in D judicial review of such matters as concern the powers and privileges of such august body as the Parliament.

398. The learned Counsel for petitioners have submitted that the expanded understanding of the fundamental rights in general and Articles E 14 and 21 in particular, incorporates checks on arbitrariness. They place reliance on the case of Bachan Singh v. State of Punjab, [1982] 3 SCC 24.

399. In the case of Bachan Singh, this court, inter alia, held, that "Article 14 enacts primarily a guarantee against arbitrariness and inhibits F State action, whether legislative or executive, which suffers from the vice of arbitrariness" and that "Article 14 ...... was primarily a guarantee against a;·bitrariness in State action". It was held in the context of Article 2 I that :-

"17. The third fundamental right which strikes against arbitrariness in State action is that embodied in Article 21 . ...

... .. .... .. ....... ... .... .... .. .... Article 21 affords protection not only against executive action but also against legislation and any law which deprives a person of his life or personal liberty would be invalid unless it prescribes a procedure for such deprivation which is

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 519

reasonable, fair and just. The concept of reasonableness, it was held, runs through the entire fabric of the Constitution. ...

...... Eve1y facet of the law which deprives a person of his life or personal liberty would therefore have to stand the test of reasonableness, fairness and justness in order to be outside the inhibition of Article 2 I." B

(Emphasis supplied)

400. It has been submitted by the petitioners that since the validity of the procedure followed in enforcement of the privilege by the Houses of C Parliament is to be tested on the touchstone of Article 20 and Article 21, the aforesaid tests of reasonableness, non-arbitrariness, non-perversity, fairness and justice come into play even in relation to the action of the Legislature.

401. On the other hand, learned Additional Solicitor General submits that the full effect of judicial review with reference to Article 21 in matters involving claim of privileges by the legislature was not examined in the cases of Pandit Sharma or the case of UP Assembly. He further submits that the expanded understanding of Article 21, taking into account its inter-relationship with Articles 14 and 19 pertains to developments subsequent to the aforementioned cases relating to privileges of the legislature and that while scrutinizing the exercise of power by Parliament it would not be possible to employ either the test of "fair, just and reasonable" or the principle of reasonableness in administrative action.

402. The submission further is that the only principle which can afford judicial review is to examine whether the rule of the Constitution which pre- supposes the underlying foundation of separation of powers has not been infringed and a manifest intrusion into judicial power vested in courts of justice has not taken place. To put slightly differently, according to the learned Additional Solicitor General, the limited judicial review would involve an inquiry as to whether the Parliament has not exercised privileges which are really matters covered by a statute and whose adjudication would involve the exercise of judicial power conferred by a statute or the Constitution.

403. According to the learned Additional Solicitor General, the discussion H

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

A with reference to Article 21 in the case of Pandit Sharma (I) proceeded ;

upon a demurrer and, therefore, there was no scope for a full-fledged discussion on the amenability of the latter part of article 105(3) or Article 194(3) to the restrictions contained in Article 21.

404. In above context, he would refer to the case of Jatish Chandra B Ghosh v. Hari Sadhan Mukherjee, [1961] 3 SCR 486. In that case, Dr. Ghosh, a member of the legislative assembly, had published in a journal certain questions which he had put in the assembly but which had been disallowed by the Speaker. The questions disparaged the conduct of the respondent who filed a criminal complaint against him and others alleging C defamation. Dr. Ghosh pleaded privileges and immunity under Article 194 as a bar to criminal prosecution. This claim was negatived, inter alia, on the grounds that the matter fell clearly outside the scope of Article 194(1) and Article 194(2) not being applicable since the publication was not under the authority of the legislature nor could be termed as something said or vote given in the legislature. The claim for immunity under Article 194(3) was also · D repelled for the reason the immunity enjoyed by a member of House of Commons is clearly confined to speeches made in Parliament and does not extend· to the publication of the debate outside. It was held as under:-

"There is no absolute privilege attaching to the publication of extracts from the proceedings in the House of Commons and a member, who has absolute privilege in respect of his speech in the House itself, can claim only a qualified pri'.'ilege in respect of it if he causes the same to be published in the public press."

405. The Ld. Counsel for Union of India concluded his submissions stating that in any exercise of judicial scrutiny of acts of the legislaturn, there would always be a presumption raised in favour of legitimate exercise of power and no motive or ma/a fide can be attributed to it. In this context, he would place reliance on observations of this court in the cases of K. Nagaraj v. State of A.P., [1985] 1 SCC 523 and T Venkata Reddy v. State G ofA.P.• [ 1985] 3 sec 198.

406. In the case of Nagaraj, this court observed in Para 36 as under:-

"36. The argument of malafides advanced by Shri A.T. Sampath, H and adopted in passing by some of the other counsel, is without

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 521

any basis. The burden to establish mala tides is a heavy burden A to discharge. Vague and casual allegations suggesting that a certain act was done with an ulterior motive cannot be accepted without proper pleadings and adequate proof, both of which are conspicuously absent in these writ petitions. Besides, the Ordinance-making power being a legislative power, the argument of mala fides is misconceived. The Legislature, as a body, cannot be B

-- accused of having passed a law for an extraneous purpose. Its reasons for passing a law are those that are stated in the Objects and Reasons and if, none are so stated, as appear from the provisions enacted by it. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that C motive cannot render the passing of the law mala fide. This fund of "transferred malice" is unknown in the field of legislation."

(Emphasis supplied)

407. In the case of T Venkata Reddy, the relevant observations in Para 14 read thus:-

"14 ........ the question is whether the validity of an Ordinance can be tested on grounds similar to those on which an executive or judicial action is tested. The legislative action under our E Constitution is subject only to the limitations prescribed by the Constitution and to no other. Any law made by the Legislature, which it is not competent to pass, which is violative of the provisions in Part III of the Constitution or any other constitutional provision is ineffective. .......... .............. ... .. While the courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motive of the Legislature in passing a statute is beyond the scrutiny of courts. Nor can the courts examine whether the Legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the courts. An Ordinance passed either under Article 123 or under Article 213 of the Constitution stands on the H

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

A same footing ......... It cannot be treated as an executive action or _j an administrative decision."

(Emphasis supplied)

408. On the question of ma/a fide, in the case of Pandit.Sharma(!), B it was noticed that allegations in that nature had been made against the Privileges Committee of the Legislative Assembly. This Court observed "the Committee of Privileges ordinarily includes members of all parties represented in the House and it i~ difficult to expect that the Committee, as a body, will be actUated by any· ma/a fide intention against the petitioner''.. I.n the case

c of U.P. Assembly, after finding that Article 20 and Article 21 would apply, this Court in Para 125 recognized the permissibility of judicial review in the face of the impugned action being vitiated on account of caprice or ma/a fides, in the following words:-

"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 y· a case to say that the warrant issued against the citizen is a general warrant and a general warrant must stop all further judicial inquiry and scrutiny."

409. The learned counsel for Union of India conceded that there would be a marginal power of correcting abuse and, therefore, for judicial intervention but this necessity would arise only in most outrageous or absurd situations where th$l power had been abused under the guise of exercise of privilege. F He again referred in this context to the judgment of Canada Supreme Court in the case of Harvey v. New Brunswick, [1996] 2 SCR 876 in particular to observations at pages 159 as under:-

"This is not to say that the courts have no role to play in the G debate which arises where individual rights are alleged to conflict with parliamentary privilege................. To prevent abuses cloaked in the guise ofprivilege from trumping legitimate Charter interests, the courts must inquire into the legitimacy of a claim of parliamentary privilege. .......... "

H (Emphasis supplied)

RAJA RAM PAL v. THE HON'BLE .SPEAKER, LOK SABHA [SABHARWAL, CJ.] 523

410. While we have already rejected the reliance on the case mentioned A above in support of the plea of exclusive cognizance vesting in the Legislature, and restriction of judicial review to the extent of finding the privilege, we find support to the case set up by the petitioners from constitutional provisions and debates thereupon which show that it is the duty of the Court to inquire into the legitimacy of the exercise of the power. B

411. Dr. B.R. Ambedkar has described Article 32 as the very soul of the Constitution - very heart of it - most important Article. That the jurisdiction conferred on this court by Article 32 is an important and integral part of the basic structure of the Constitution of India and that no act of parliament can abrogate it or take it away except by way of impermissible c erosion of fundamental principles of the constitutional scheme are settled propositions of Indian jurisprudence.

412. In the case of State of Rajasthan v. Union of India, [1977] 3 SCC 592, while dealing with the issues arising out of communication by the then D Union Home Minister to the nine States asking them to advise their ·'\- respective Governors to observe the legislative assemblies and seek fresh mandate from the people, this court observed in Para 40 as under:-

"This Court has never abandoned its constitutional function as the final Judge of constitutionality of all acts purported to. be done under the authority of the Constitution. It has not refused to determine questions either of fact or of law so long as it has found itself possessed of power to do it and the cause of justice to be capable of being vindicated by its actions. But, it cannot assume unto itself powers the Constitution lodges elsewhere or undertake tasks entrusted by the Constitution to other departments of State which may be better equipped to perform them. The scrupulously discharged duties of all guardians of the Constitution include the duty not to transgress the limitations of their own constitutionally circumscribed powers by trespassing into what is properly the domain of other constitutional organs. Questions of political wisdom or executive policy only could not be subjected to judicial control. No doubt executive policy must also be subordinated to constitutionally sanctioned purposes. It has its sphere and limitations. But, so long as it operates within that H

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

A sphere, its operations are immune from judicial interference. '.This is also a part of the doctrine of a rough separation of powers under the Supremacy of the Constitution repeatedly propounded by this Court and to which the Court unswervingly adheres even when its views differ or change on the correct interpretation of a:particular constitutional provision." B (Emphasis supplied)

413. We reaffirm the said resolve and find no reason·why in the facts and circumstances at hand this court should take a different view so as to abandon its constitutional functions as the final judge of constitutionality c of all acts purported to be done under the authority of the Constitution, though at the same time refraining from transgressing into the sphere that is properly the domain of the Parliament.

414. ·Learned Additional Solicitor General submits that in the case of D UP Assembly, the court had placed reliance on Articles 208 and 212 which contemplate that rules can be framed by the legislature subject to the provisions of the Constitution which in tum implies that such rules are -.f compliant with the fundamental rights guarahteed 0by Part III. He submits that if the rules framed under Article 118 (which corresponds to Article 208) E are consistent with Part III of the Constitution then the exercise of powers, privileges and immunities is bound to be a fair exercise and Parliament can be safely attributed such an intention.

415. While it is ttue that there is no challenge to the Rules of Procedure and Conduct of Business · in .Lok Sabha and Rules of Procedure and F Conduct of Business in the Council of States, as made by the two Houses of Parliament in exercise of enabling powers under Article 118 (I), we are of the opinion that mere availability of Rules is never a guarantee that they have been duly followed. What we are concerned with, given the limits prescribed in Article 122( I), is not "irregularity of procedure" but illegalities G or unconstitutionalities.

416. In the context of the discretionary power conferred on the Central Government by Section 237(b) of the.Companies Act, 1956 to order an investigation into the affairs of a.company in the event of the Government forming_ an opinion that circumstances exist suggesting, inter alia, that the H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 525

business of the company is being conducted with intent to defraud its creditors, this Court in the case of Barium Chemicals Ltd v. Company Law Board, AIR ( 1967) SC 295 held that the scope for judicial review of the action would be "strictly limited". While no difficulty would arise if it could be shown that no opinion had been formed, it was observed that:-

" ......there is a difference between not forming an opinion at all and forming an opinion upon grounds, which, if a court could go into that question at all, could be regarded as inapt or insufficient or irrelevant."

417. It was further observed that:- c "No doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. "

(Emphasis supplied) D

418. It was observed in Para 60 of the judgment as under:-

Though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala tides dishonesty or corrupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the power, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation ........ "

(Emphasis supplied) G

419. In the case ofRohtas Industries Ltd. v. S.D. Agarwal, [1969] 1 SCC 325, facing similar issues in the context of same statutory provisions, this Court followed the principle laid down in the case of Barium Chemicals and held that in the event of existence of requisite conditions being challenged:- H

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

A " ......... the courts are entitled to examine whether those circumstances were existing ·when the order was made. Jn other words, the existence of the circumstances in question are open to judicial review though the opinion formed by the Government is not amenable to review by the Courts."

B (Emphasis supplied)

420. Holding that there must be a real exercise of the power by the authority, it was further observed that:-

" ... authority must be exercised honestly and not for corrupt or c ulterior purposes. The authority must form the requisite opinion honestly and offer applying its mind to the relevant materials before it."

xxxx xxxx xxxx D "It 'must act reasonably and not capriciously or arbitrarily' and that if it were established that there were no materials on which requisite opinion could be formed, the Court could legitimately 'infer that the authority did not apply its mind to the relevant facts'." E (Emphasis supplied)

421. The case of S.R. Bommai v. Union of India, [1994] 3 SCC 1 had given rise to challenge to the constitutional validity of the proclamation under Article 356 issued by the President, inter alia, ordering dissolution of the Legislative Assembly of a State, assuming to himself the functions of the Government of the State, upon declaration of satisfaction that a situation had arisen in which government of the said State cannot be carried on in accordance with the provisions of the Constitution. The matter had given rise to questions about the scope of judicial review of the satisfaction recorded by the President in such behalf. It was held through majority by the Constitution Bench ~9 Judges) of this Court that the exercise of power by the President under Article 356(1) to issue such a proclamation is subject to judicial review at least to the extent of examining whether the conditions precedent to the issuance of the proclamation have been satisfied or not. For purposes of such examination, the exercise would necessarily involve H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL. CJ.] 527

- 't "the scrutiny as to whether there existed material" for such a satisfaction being arrived at. It was held that· it was not "any material" but material "which would lead to the conclusion" requisite for such proclamation and therefore, "the material in question has to be such as would induce a reasonable man to come to the conclusion in question". The Court held that A

although "the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from such material is certainly open to B judicial review." The following observations appearing in Para 96 of the judgment in the case of S.R. Bommai need to be quoted in extenso:

"Democracy and federalism are the essential features of our Constitution and are part of its basic structure. Any interpretation c that we may place on Article 356 must, therefore help to preserve and not subvert their fabric. The power vested de jure in the President but de facto in the Council of Ministers under Article 3 56 has all the latent capacity to emasculate the two basic features of the Constitution and hence it is necessary to scrutinise the material on the basis of which the advice is given and the President forms his satisfaction more closely and circumspectly. This can be done by the courts while confining themselves to the acknowledged parameters of the judicial review as discussed above, viz., illegality, irrationality and mala tides. Such scrutiny of the material will also be within the judicially discoverable and manageable standards. "

(Emphasis supplied)

422. Ramaswamy, J. in his separate judgment in the case of S.R. -....;( F Bommai observed in Para 255 as under:-

"Judicial review is a basic feature of the Constitution. This Court/ High Courts have constitutional duty and responsibility to exercise judicial review as sentinel on the qui vive. Judicial review is not concerned with the merits of the decision, but with the manner in G which the decision was taken. "

_......,.._ (Emphasis supplied)

423. In Para 256, Ramaswamy, J. clarified that:- H

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

A "Judicial reveiw must be distinguished from the justiciability by ; ·-+ the court. The two concepts are not synonymous. The power of judicial review is a constituent power and cannot be abdicated by judicial process of interpretation. However, justiciability of the decision taken by the President is one of exercise of the power by the court hedged by self-imposed judicial restraint. It is a cardinal B principle of our Constitution that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution. Its actions are within the confines of the powers -+-- given by the Constitution." (Emphasis supplied) c

424. At the same time, he circumscribed the limits by observing, in Para 260, as under:-

"The traditional parameters of judicial review, therefore, cannot D be extended to the area of exceptional and extraordinary powers exercised under Article 356. The doctrine ofproportionality cannot be extended to the power exercised under Article 356 ........ "

425. In Para 215, he held that:-

E " ........... The doctrine that the satisfaction reached by an administrative officer based on irrelevant and relevant grounds and when some irrelevant grounds were taken into account, the whole order gets vitiated has no application to the action under Article 356. Judicial review of the Presidential Proclamation is not concerned with the merits of the decision, but to the manner F in which the decision had been reached. The satisfaction of the President cannot be equated with the discretion conferred upon an administrative agency, of his subjective satisfaction upon objective material likP. in detention cases, administrative action or by subordinate legislation ......... " G (Emphasis supplied)

Jeevan Reddy and Agrawal, JJ., in their separate but concurring judgment, held that:-

" ........the truth or correctness of the material cannot be questioned H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 529

by the court nor will it go into the adequacy of the material. It will also not substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action. The ground of mala tides takes in inter alia situations where the Proclamation is found to be a clear case of abuse of power, or what is sometimes called fraud on power - cases where this power is invoked for achieving oblique ends. This is indeed merely an elaboration of the said ground."

(Emphasis supplied) C

427. They also recognized, in Para 375, the need in such matters for regard being had to the effect that what was under the scanner before the adjudicator was the exercise of power vested in highest constitutional authority. They held as under:- D "It is necessary to reiterate that the court must be conscious while examining the validity of the Proclamation that it is a power vested in the highest constitutional functionary of the Nation. The court will not lightly presume abuse or misuse. The court would, as it should, tread wearily, making allowance for the fact that the E President and the Union Council of Ministers are the best judges of the situation, that they alone are in possession of information and material sensitive in nature sometimes and that the Constitution has trusted their judgment in the matter. But all this does not mean that the President and the Union Council of Ministers are the F final arbiters in the matter or that their opinion is conclusive. "

(Emphasis supplied) ..;> -I 428. Jeevan Reddy and Agrawal, JJ., concurred with Ramaswamy J., by observing, in Para 373, as under:- G

"So far as the approach adopted by this Court in Barium Chemicals is concerned, it is a decision concerning subjective satisfaction of an authority created by a statute. The principles evolved then cannot ipso facto be extended to the exercise of a constitutional H

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

A power under Article 356. Having regard to the.fact that this is a high constitutional power exercised by the highest constitutional functionary of the Nation, it may not be appropriate to adopt the tests applicable in the case of action taken by statutory or administrative authorities - nor at any rate, in their entirety."

B (Emphasis supplied)

429. A controversy similar to the one in the case of S.R. Bommai arose before this Court in Rameshwar Prasad v. Union of India, [2006] 2 SCC 1. The questions raised once again concerned the validity of the subjective c satisfaction of the President under Article 356 for issue of proclamation. Following the spirit of the judgment of S.R. Bommai, with due deference to the exceptional character of the power exercised by the President under Article 356 which cannot be treated on a par with an.administrative action and so the validity whereof cannot be examined by applying the grounds available for challenge of an administrative action, this Court held that the D power is not absolute but subject to checks & balances and judicial review.

Summary of the Principles relating to Parameter of Judicial Rev~w in relation to exercise of Parliamentary Provisions

E 430. We may summarize the principles that can be culled out from the above discussion. They are:-

a. Parliament is a co-ordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny; F b. Constitutional system of government abhors absolutism and it being the cardinal principle of our Constitution that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution, mere co-ordinat-e constitutional status, or even the status of an exalted constitutional functionaries, does not disentitle this Court from exercising its jurisdiction of judicial review of action which part-take the character of judicial or quasi-judicial decision;

c. The expediency and necessity of exercise of power or privilege by the legislature are for the determination of the legislative

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL CJ.] 531

authority and not for determination by the courts; A d. The judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature;

e. Having regard to the importance of the functions discharged by B the legislature under the Constitution and the majesty and grandeur of its task, there would always be an initial presumption that the powers, privileges etc. have been regularly and reasonably exercised, not violating the law or the Constitutional provisions, this presumption being a rebuttable one; c £ The fact that Parliament is an august body of co-ordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power;

g. While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to exercise there:>f, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested, and the Court would confine itself to the acknowledged parameters of judicial review and within the judicially discoverable & manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error;

h. The Judicature is not prevented from scrutinizing the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens;

i. The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct; G

j. If a citizen, whether a non-member or a member of the Legislature, complains that his fundamental rights under Article 20 or 21 had been contravened, it is the duty of this Court to examine the merits of the said contention, especially when the impugned H

_,, -~ 532 SUPREME COURT REPORTS [2007] l S.C.R.

A action entails civil consequences; ;

k There is no basis to claim of bar of exclusive cognizance or absolute immunity to the Parliamentary proceedings in Article 105(3) 0f the Constitution; Jim B L The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions - . contained in the other Constitutional provisions, for example _,___ Article 122 or 212; ~ c m Articles 122 (1) and Article 212 (1) displace the broad doctrine of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governance provided by Constitution of India D n. Article 122 (1) and Article 212 (1) prohibit the validity of any __,, proceedings in legislature from being called in question in a court ,, merely on the ground of irregularity of procedure;

E o. The truth or correctness of the material will not be questioned by the court nor will it go into the adequacy of the material or substitute its opinion for that of the legislature;

p. Ordinarily, the legislature, as a body, cannot be accused of having acted for an extraneous purpose or being actuated by F y...._ _ _ caprice or mala fide intention, and the court will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters, but if in a given case, the allegations to such effect are made, the Court may examine the -~ validity of the said contention, the onus on the person alleging being extremely heavy

q. The rules which the legislature has to make for regulating its proced~re and the conduct of its business have to be subject to .. the provisions of the Constitution; + H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 533

r. Mere availability of the Rules of Procedure and Conduct of A Business, as made by the legislature in exercise of enabling powers under the Constitution, is never a guarantee that they have been duly followed;

s. The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from B judicial scrutiny;

t. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action; c u. An ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision but not on grounds oflack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of D constitutional mandate, ma/a fides, non-compliance with rules of natural justice and perversity;

431. It can now be examined if the manner of exercise of the power of expulsion in the cases at hand suffers from any such illegality or unconstitutionality as to call for interference by this Court. E Examination of the individual cases of the Petitioners

432. It is the contention of the petitioners that the impugned action on the part of each House of Parliament expelling them from the membership F suffers from the vice of ma/a fide as decision had already been taken to expel them. In this context they would refer, inter alia, to the declaration on the part of the Hon'ble Speaker, Lok Sabha on the floor of the House on 12th December 2005 that "nobody wculd be spared". The contention is that the inquiries were sham and the matter was approached with a pre-determined disposition against all the basic cannons of fair play & natural justice. G

433. On the other hand, it has been argued by Shri Andhyarujina that .- no ma/a fide or ulterior motive can be attributed to the Houses of Parliament also for the reason that the impugned decisions were taken by the Houses as a whole, with utmost good faith in the interest of safeguarding the H

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

A standing and reputation of Parliament. Learned counsel would also submit that no member of either House had disputed the findings of misconduct and it was not open to anyone to question anything said or done in the House by suggesting that the actions or words were inspired by improper motives.

B 434. As already observed in earlier part of this judgment, the Legislature cannot ordinarily be accused of having acted for an extraneous purpose or being actuated by caprice or ma/a fide intention. The Court would not lightly presume abuse or misuse of authority by such august bodies also because allowance is always to be given to the fact that the legislature is the best Judge in such matters.

435. In our considered view, conclusions cannot be drawn so as to attribute motive to the Houses of Parliament by reading statements out of the context. The relevant part of the speech of the Hon 'ble Speaker made on the floor of the House on 12th December 2005 has been extracted in the counter affidavit filed on behalf of the Union of India. It is pertinent to note that before stating that nobody would be spared, the Speaker had exhorted the members of the House to rise to the occasion and to see to it that such an event does not occur ever in future and commended that "if anybody is guilty, he should be punished". It is clear that when he stated that no body would be spared he was not immediately passing a judgment that the petitioners were guilty. He was only giving vent to his feeling on the subject of the proper course of action in the event of inquiry confirming the facts that had been projected in the telecast. The finding of guilt would come later. The fact that he had constituted an Inquiry Committee with members drawn also from parties in opposition rather goes to show that the resolve at that stage was to find the truth.

436. In these circumstances, we are unable to .accept the allegation of ma/a fide on the ground that decision had already been taken to expel them. Even otherwise, it cannot be ignored that the dissent within the respective G Committees of the two Houses essentially pertained to the procedure adopted. Nothing less and· nothing more. Further, the reports of the Committees having been adopted by the respective chambers of Parliament, the decision of the Committee got merged into that of the Legislative chamber which being collective body, it is difficult to attribute motive thereto, in particular, in the face of the fact that the resolutions in question

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 535

were virtually unanimous as there was no demand at any stage from any quarter for division of votes.

437. It has been contended by the petitioners that the circumstances did not warrant the exercise by the Houses of Parliament of the power of expulsion inasmuch as the persons behind the sting operations were driven by motives of pelf and profit. In this context, the learned counsel for petitioners would refer repeatedly to the evidence, in particular, of Mr. Aniruddha Bahal as adduced before the Inquiry Committee of Lok Sabha wherein he would concede certain financial gains on account of arrangements with the television channels for telecast of the programme in question. c

438. We are unable to subscribe to this reasoning so as to find fault with the action that has been impugned before us. We are not concerned here with what kind of gains, financial or otherwise, those persons made as had conceived or engineered the sting operations leading to the material being brought into public domain through electronic media. This was not an area of anxiety even for the Houses of Parliament when they set about probing the matter resulting ultimately in expulsions. The sole question that was required to be addressed by the Inquiry Committees and the Legislative chambers revolved around the issue of misconduct attributed to the individual members bringing the House in disrepute. We, therefore, reject the above contention reiterating what we have already concluded, namely, that the expediency and necessity of exercise of such a power by the Legislature is for determination by the latter and not by the Courts. I

=i. 439. The petitioners have questioned the validity of the impugned actions on the ground that the settled procedure and mechanism for bringing about cessation of the membership were by-passed.

440. In the above context, reference was first made to the procedure prescribed in Article· 103 and the Tenth Schedule. But then, we have already found that the purposes of the procedure prescribed in both the said provisions of the Constitution are entirely different. While Article 103 relates to disqualifications prescribed in Article 102, the tenth schedule pertains to the disqualification on account of defection. These provisions have no nexus whatsoever with the exercise of power of expulsion claimed as a privilege available to the Houses of Parliament under Article 105(3). This argument, therefore, cannot cut any ice in favour of the petitioners. H

536 SUPREME COURT REPORTS (2007) l S.C.R.

A 441. The main thrust of the submissions of the petitioners in the context of avoidance of settled procedure and mechanism, however, was on the fact that the machinery of Privileges Committee for which provision exists in the Rules of Procedure and Conduct of Business for each of the two Houses was not resorted to. It has been contended that the matters were referred, for no just or sufficient reason, to Inquiry Committees other than the Privileges Committees, in the case of Lok Sabha to a Committee specially set up for the purpose. This, as per the arguments vociferously . ,,,. advanced on behalf of the petitioners, should be held as sufficient to vitiate the whole process. Mr. Ram Jethamalani, Senior Advocate went to the extent of suggesting that the procedure followed was ad-hoc procedure and, therefore, it could not be claimed by anyone that the established procedure had been complied with.

442. We find no substance in the abovesaid grievances of the petitioners. The matters pertaining to the two Members of Rajya Sabha were referred to ,the Committee on Ethics which is also a mechanism provided by the Rules of Procedure and Conduct of Business in the said House, While it is correct that the matters pertaining to the Members of Lok Sabha were referred to a Committee specially constituted for the purpose but nothing turns on that fact. It may be observed that under circumstances in question the composition of the Committee itself is sufficient to show that it was not a partisan Committee. The terms of reference for the Committee required it to make investigation into the allegations.

443. The conclusions reached by the Inquiry Committee and recommendations made have been accepted by passing of resolutions by the two Houses that have adopted the reports of the respective Committees. F

444. Article 118 empowers each House of Parliament to make rules for regulating its procedure. The rules of the procedure of both Houses permit constitution of Committees. There is no illegality attached to constitution of a Special Committee by the Speaker, Lok Sabha for purposes of investigation into the allegations against members of the said House. The G argument of ad-hoc procedure, therefore, does not appeal to us.

445. The petitioners' case is that the procedures adopted by the Committees of the two Houses were neither reasonable nor fair. Further, they contend that the entire inquiry was improper and illegal inasmuch as rules of natural justice were flouted. In this context, the grievances of the ) I

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [SABHARWAL, CJ.] 537

+ petitioners are manifold. They would state that proper opportunity was not given to them to defend themselves; they were denied the opportunity of defending themselves through legal counsel or to give opportunity to explain; the request for supply of the material, in particular the un-edited versions of videography for testing. the veracity of such evidence was turned down and doctored or morphed video-clippings were admitted into evidence, the entire procedure being unduly hurried. As already noted the scope of judicial review in these matters is restricted and limited. Regarding non-grant of reasonable opportunity, we reiterate what was recently held in Jagjit Singh v. State of Haryana & Ors., (WP (C) No. 287 of 2004 decided on 11.12.2006] that the principles ofnaturaljustice are not immutable but are flexible; they cannot be cast in a rigid mould and put in a straitjacket and the compliance thereof has to be considered in the facts and circumstances of each case.

446. We outrightly reject the argument of denial of reasonable opportunity and also that proceedings were concluded in a hurry. It has become almost fashionable to raise the banner of "Justice delayed is justice denied" in case of protracted proceedings and to argue "Justice hurried is justice buried" if the results are quick. We cannot draw inferences from the amount of time taken by the Committees that inquired the matters as no specific time is or can be prescribed. Further such matters are required to be dealt with utmost expedition subject to grant of reasonable opportunity, which was granted to the petitioners.

447. As has been pointed out by the learned counsel on behalf of the Union of India, basing his submissions on the main report of the Inquiry Committee of Lok Sabha, the request for supply of full-footage of video recordings and audio tapes or extension of time or representation through counsel for such purposes did not find favour with the Inquiry Committee mainly because the Committee had offered to the concerned Members of Lok Sabha an opportunity to view the relevant video-footage that was available with the Committee and point out the discrepancies therein, if any, to the it. But, as is mentioned in the report copy of which has been made available by the Union of India to us, the petitioners themselves chose to tum down the said offer. The situation was almost similar to the one in Jagjit Singh 's case.

448. We agree with the submissions of the learned counsel for Union H

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

A of India that the Inquiry Committee in the face of the refusal on the part of /

the concerned members was fully justified in not giving any credence to the + objections that the video-clippings were doctored or morphed. The Committee in these circumstances could not be expected but to proceed to draw conclusions on the basis of the available material.

B 449. The reports of the Inquiry Committee of Lok Sabha and the Committee on Ethics of Rajya Sabha indicate that both of the said Committees \ had called for explanations from each of the Members in question and had given due consideration to the same. The submissions of the learned counsel for Union of India that the proceedings of the respective Committees c were open to one and all, including these petitioners who actually participated in the proceedings could not be refuted. Therefore, it is not permissible to the petitioners to contend that evidence had been taken behind their back. The reports further show that the Committees had taken care not to proceed on the edited versions of the video recordings. Each of them insisted and procured the raw video-footage of the different sting operations and drew conclusions after viewing the same. As pointed out by the learned counsel for Union oflndia, the evidence contained in the video recordings indicating demand or acceptance of money was further corroborated in two cases by the admissions made by the two Members of Rajya Sabha. Dr. Chhattrapal ~ingh Lodha had sought to attribute the receipt of money to a different transaction connected with some organization he was heading. But this explanation was not believed by the Committee on Ethics that unanimously found his complicity in unethical behavior on account of acceptance of money for tabling questions in Rajya Sabha. Dr. Swami Sakshiji Maharaj, on the other hand, went to the extent of expressing his regrets and displaying F a feeling of shame for his conduct even before the Committee on Ethics.

450. It is the contention of the petitioners that the evidence relied upon by the two Houses of Parliament does not inspire confidence and could not constitute a case of breach of privilege. Their argument is that the decision of expulsion is vitiated since it violated all sense of proportionality, fairness, G legality,_ equality, justice or good conscience, and it being bad in law also because, as a consequence, the petitioners have suffered irreparable loss inasmuch as their image and prestige had been lowered in the eyes of the electorate. +

H 451. We are of the considered view that the impugned resolutions of

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K THAKKER, J.) 539

"'-+ Lok Sabha and Rajya Sabha cannot be questioned before us on the plea of proportionality. We are not sitting in appeal over the decision of the Legislative chambers with regard to the extent of punishment that deserved to be meted out in cases of this nature. That is a matter which must be left to the prerogative and sole discretion of the legislative body. All the more so because it is the latter which is the best Judge in exercise of its jurisdiction the object of which is self-protection. So long as the orders of expulsion are not illegal or unconstitutional, we are not concerned with the ~ consequences for the petitioners on account of these expulsions.

452. In these proceedings, this Court cannot not allow the truthfulness or correctness of the material to be questioned or permit the petitioners to c go into the adequacy of the material or substitute its own opinion for that of the Legislature. Assuming some material on which the action is taken is found to be irrelevant, this Court shall not interfere so Jong as there is some relevant material sustaining the action. We find this material was available in the form of raw footage of video recordings, the nature of contents whereof are reflected in the Inquiry reports and on which subject the ~· petitioners have not raised any issue of fact.

453. On perusal of the Inquiry reports, we find that there is no violation of any of the fundamental rights in general and Articles 14, 20 or 21 in particular. Proper opportunity to explain and defend having been given to each of the petitioners, the procedure adopted by the two Houses of Parliament cannot be held to be suffering from any illegality, irrationality, unconstitutionality, violation of rules of natural justice or perversity. It cannot be held that the petitioners were not given a fair deal. ~'Y F

454. Before concluding, we place on record our appreciation for able assistance rendered by learned counsel for the parties in the matter.

455. In view of above, we find no substance in the pleas of the petitioners. Resultantly, all the Petitions and Transferred Cases questioning the validity of the decisions of expulsion of the petitioners from the G ~espective Houses of Parliament, being devoid of merits, are dismissed.

~- C.K THAKKER, J.:

1. I have had the benefit of reading the erudite judgment prepared by H

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

A my Lord the Chief Justice. I am in agreement with the final order dismissing ~: the petitions. Keeping in view, however, the issue in these matters which is indeed of great public importance having far-reaching consequences to ·one of the largest democracies of the world, I intend to consider it in detail.

2. In these I I petitions (9 by members of Lok Sabha and 2 by members B of Rajya Sabha), the petitioners have challenged the proceedings initiated against them by Parliament, the reports submitted by the Committees constituted by Parliament holding them guilty of the charges levelled against them and notifications expelling them as members of Parliament.

C 3. The 'unfortunate background' of the case has been dealt with by the learned Chief Justice and I do not intend to repeat it. Suffice it to say that it was alleged against the petitioners that they accepted money for tabling questions/raising issues in Parliament. Committees were appointed to inquire into the allegations and conduct ofHon'ble Members. The allegations were found to be correct and pursuant to the reports submitted by the D Committees, the Members were expelled by Parliament. Those Members have challenged the impugned action of expulsion.

4. The Court had been ably assisted by the learned counsel for the parties on the central question of Parliamentary privileges, the power of the E House to deal with those privileges and the ambit and scope of judicial review in such matters.

5. At the outset, I wish to make it clear that I am considering the controversy whether Parliament has power to expel a member and whether F such power and privilege is covered by clause (3) of Article 105 of the Constitution. I may clarify that I may not be understood to have expressed final opinion one way or the other on several questions raised by the parties and dealt with in this judgment except to the extent they relate or have relevance to the central issue of expulsion of membership of Parliament.

G PARLIAMENTARY PRIVILEGES: MEANING

6Copy pinpoint6. An important as also a complicated question is What do we understand by 'parliamentary privileges'? ~

7Copy pinpoint7. "Nothing", said Dicey, "is harder to define than the extent of the

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA (C.K. THAKKER, l] 541

indefinite powers or rights posse~sed by either House of Parliament under A the head of privilege or law and custom of Parliament".

8Copy pinpoint8. Though all the three expressions, powers, privileges and immunities are invariably used in almost all Constitutions of the world, they are different in their meanings and also in contents. B

9Copy pinpoint9. 'Power' means 'the ability to do something or to act in a particular way'. It is a right conferred upon a person by the law to alter, by his own will directed to that end; the rights, duties, liabilities or other legal relations either of himself or of other persons. It is a comprehensive word which includes procedural and substantive rights which can be exercised by a person or an authority. c

10Copy pinpoint10. 'Privilege' is a special right, advantage or benefit conferred on a particular person. It ic; a peculiar advantage or favour granted to one person as against another to do certain acts. Inherent in the term is the idea of something, apart and distinct from a common right which is enjoyed by all D persons and connotes some sort of special grant by the sovereign.

11Copy pinpoint11. 'Immunity' is an exemption or freedom from general obligation, duty, burden or penalty. Exemption from appearance before a court of law or other authority, freedom from prosecution, protection from punishment, etc. are immunities granted to certain persons or office bearers. E

12Copy pinpoint12. Sir Erskin May, in his well-known work 'Treatise on The Law, Privileges, Proceedings and Usage ofParliament', (23rd Edn.); p. 75 states;

"Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the F High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law. Certain rights and G immunities such as freedom from arrest or freedom of speech belong primarily to individual Members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its Members. Other such rights and immunities such as the power to punish for contempt and the H

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

A power to regulate its own constitution belong primarily to each House as a collective body, for the protection of its Members and the vindication of its own authority and dignity. Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members". B

13Copy pinpoint13. Jn Ha/sbury's Laws ofEngland, (4th Edn.; Reissue, Vol. 34; p. 553; para 1002); it has been stated; +- "Claim to rights and privileges. The House of Lords and the House of Commons claim for their members, both individually and c collectively, certain rights and privileges which are necessary to each House, without which they could not discharge their functions, and which exceed those possessed by other bodies and individuals. Jn 1705 the House of Lords resolved that neither House had power to create any new privilege and when this was communicated to the D Commons, that House agreed. Each House is the guardian of its own privileges and claims to be the sole judge of any matter that may arise which in any way impinges upon them, and, if it deems it advisable, to punish any person whom it considers to be guilty of a breach of privilege or a contempt of the House".

14Copy pinpoint14. In the leading case of Powers, Privileges and Immunities of State Legislatures, Article I 43, Constitution ofIndia, Re, [ 1965] l SCR 413 : AIR (1965) SC 745, Sarkar, J. (as His Lordship then was) stated; "I would like at this stage to say a few general words about "powers, privileges and immunities" of the House of Commons or its members. First I wish to note that it is not necessary for our purposes to make a distinction between "privileges", "powers" and "immunities". They are no doubt different in the matter of their respective contents but perhaps in no otherwise. Thus the right of the House to have absolute control of its internal proceedings may be considered as its privilege, its right to punish one for contempt may be more properly described as jts power, while the right that no member shall be liable for anything said in the House may be really. an immunity".

15Copy pinpoint15. In 'Parliamentary Privilege - First Report' (Lord Nicholas Report), it was observed;

"Parliamentary privilege consists of the rights and immunities H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 543

which the two Houses of Parliament and their members and officers A possess to enable them to carry out their parliamentary functions effectively. Without this protection members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished." B

RAISON D'ETRE FOR P RJVJLEGES

16Copy pinpoint16. The raison d'etre for these privileges is again succinctly explained by Sir Erskine May thus; C "The distinctive mark of a privilege is its ancilliary character. The privileges of Parliament are rights which are 'absolutely necessary for the due execution of its powers'. They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded used of the services of its Members; D and by each House for the protection of its Members and the vindication of its own authority and dignity."

17Copy pinpoint17. Elected representatives, however, are not placed above the law by way of parliamentary privileges; they are simply granted certain advantages and basic exemptions from legal process in order that the House may function independently, efficiently and fearlessly. This is in the interest of the nation as a whole.

PARLIAMENT: WHETHER POSSESSES POWER TO EXPEL MEMBERS

18Copy pinpoint18. The basic and fundamental question raised by the petitioners in all these petitions is the power of Parliament to expel a member. Other incidental and ancillary questions centre round the main question as to authority of a House of Legislature of expulsion from membership. If the sole object or paramount consideration of granting powers, privileges and immunities to the members of Legislature is to enable them to ensure that they perform their functions, exercise their rights and discharge their duties effectively, efficiently and without interference of outside agency or authority, it is difficult to digest that in case of abuse or misuse of such privilege by any member, no action can be taken by the Legislature, the parent body. H

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

19Copy pinpoint19. I intend to examine the question on principle as well as on practice. It would be appropriate if I analyse the legal aspects in the light of constitutional provisions of India and of other countries, factual .. considerations and relevant case law on the point.

AMERICAN LAW B

20Copy pinpoint20. So far as the United States of America is concerned, the Constitution itself recognizes such right. Section 5 of Article 1 of the Constitution of the United States confers such right on each House of the Legislature. Sub- section (2) reads thus;

c "(2) Each House may determine the rule~ of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member." (emphasis supplied)

21Copy pinpoint21. Leading Authors on the Constitution have also stated that each D House possesses the power to expel a member in appropriate cases.

22Copy pinpoint22. Cooley in his well-known work 'Treatise on the Constitutional Limitations', (1972 Edn., p. 133); states:

" Each House has also the power to punish members for disorderly behaviour, and other contempts of its authority, and also to expel a member for any cause which seems to the body to render it unfit that he continue to occupy one of its seats. This power is sometimes conferred by the constitution, but it exists whether expressly conferred or not. It is a necessary and incidental power, to enable the house to perform its high functions and is Y-- necessary to the safety of the State. It is a power of protection. A member may be physically, mentally, or morally wholly unfit; he may be affected with a contagious disease, or insane, or noisy, violent and disorderly, or in the habit of using profane, obscene, and abusive language. And independently of parliamentary customs and usages, our legislative houses have the power to protect themselves by the punishment and expulsion of a member and the Courts cannot inquire into the justice of the decision, or look into the proceedings to see whether opportunity for defence was furnished or not." H (emphasis supplied)

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J] 545

23Copy pinpoint23. Another well-known authority on the point is Willoughby, who in his work "Constitutional Law of the United States", (SecondEdn.; p. 256); says;

"This right of expulsion is to be sharply distinguished from the right to refuse to admit to membership. In the latter case, as has been seen, the questions involved are, in the main, the perhaps exclusively, those which relate to the Constitutional qualifications of those persons presenting themselves for admission or to the regularity and legality of the elections at which such persons have been selected or appointed. In the former case, that is, of expulsion, these matters may be considered, but, in addition, action may be predicated upon the personal character or acts of the parties concerned; and, as to his last matter, as will presently be seen, the chief point of controversy has been whether the acts of which complaint is made should be only those which have occurred subsequent to election and have a bearing upon the dignity of Congress and the due performance of its functions. D xxxx xxxx xx xx

Jn determining whether or not a member ofcongress has been guilty ofsuch acts as to warrant his expulsion the House concerned does not sit as a criminal trial court, and is not, therefore, bound E by the rules of evidence, and the requirements as the certitude of guilt which prevail in a criminal character, but only as to unfitness for participation in the deliberations and decisions of congress." (emphasis supplied) .. -"t F

24Copy pinpoint24. Dealing with the question of expulsion by the House and the power of Courts, Pritchett in his book 'American Constitution' (Third Edn., p. 146); observed;

"Expulsion and Censure : Congressmen are not subject to impeachment, not being regarded as 'civil officers' of the United G States. The constitution does not provide, however, that each House may expel its members by a two third vote, or punish them for 'disorderly behaviour'. Congress is the sole judge of the reasons for expulsion. The offence need not be indicatable. In 1797 the Senate expelled William Blount for conduct which was not H

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

A performed in his official capacity not during a session of the Senate nor at the seat of government. The Supreme Court has recorded in a dictum in understanding that the expulsion power 'extends to all cases where the offence i; such as in the judgment of the Senate is inconsistent with the trust and duty of a member". · (emphasis supplied) B

25Copy pinpoint25. In 'American Jurisprudence', (Second Edn., Vol. 77, p. 21); it has been stated;

"The power of either House of Congress to punish or expel c its members for cause is recognized in the Constitution which provides that each House may punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member. Punishment for misbehaviour may in a proper case be by imprisonment and may be imposed for failure to observe a rule for preservation of order. In the case of the Senate, the right to expel D extends to all cases where the offence is such as in the judgment of the body is inconsistent with the trust and duty of a member (Chapman Re, (1896) 166 US 661 : 41LEdl154)".

26Copy pinpoint26. Attention of the Court was also invited to certain decisions of the E Supreme Court of the United States. In Chapman, Re, l 66 US 661 ( l 891) : 4 l L Ed 2nd 1154, the Supreme Court before more than a century, recognized the power of the Senate to expel a member where an act of the Member was such as in the judgment of the Senate was inconsistent with the 'trust and duty' ofa member. Reference was made to William Blount, who was expelled from the Senate in July, 1797, for 'a high misdemeanor entirely inconsistent Y-• F with his public trust and duty as a senator.' It was also stated that in July, 1861, during civil war, fourteen Senators and three Representatives were expelled.

27Copy pinpoint27. In Julian Bond v. James Sloppy Floyd, 385 US 116 (1966): 17 L G Ed 2nd 235, Willium Bond, a Negro, duly elected representative was excluded from membership because he attacked policy of Federal Government in Vietnam. The US Supreme Court held that Bond had right to express free opinion under the first amendment and his exclusion was bad in Jaw.

28Copy pinpoint28. In Powell v. McCormack, 395 US 486 (1969) : 23 L Ed 2nd 491, the H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 547

applicant was held entitled to declaratory judgment that action of exclusion of a member of a House was unlawful. The allegation against the applicant was that he deceived the House Authorities in connection with travel expenses and made certain illegal payments to his wife. Referring to Wilkes and the Law in England, the Court observed that "unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behaviour and in extreme cases, to expel a member with the concurrence of two-thirds."

29Copy pinpoint29. In H. Snowden Marshall v. Robert B. Gordon, 243 US 521 (1917), a Member of the House of Representatives levelled serious charges against C District Attorney of the Southern District of New York with many acts of misfeasance and nonfeasance. The Select Committee submitted a report holding him guilty of contempt of the House of Representatives of the United States because he violated its privileges, its honor and its dignity.

30Copy pinpoint30. Dealing with the case and referring to Kie/ley v. Carson, [1842] 4 D MOO PC 63 : 13 ER 225, the Court observed that when an act is of such a character as to subject it to be dealt with as a contempt under the implied authority, Congress has jurisdiction to act on the subject. Necessarily results from that the power to determine in the use of legitimate and fair discretion how far from the nature and character of the act there is necessity for repression to prevent immediate recurrence, that is to say, the continued E existence of the interference or obstruction to the exercise of the legislative power. Unless there is manifest and absolute disregard of discretion and a mere exertion of arbitrary power coming within the reach of constitutional limitations, the exercise of the authority is not subject to judicial interference. F

31Copy pinpoint31. I may also refer to a leading decision in United States v. Daniel Brewster, 408 US 501 : (1972) 33 L Ed 2nd 507. Keeping in view ground reality that privileges conferred on Members of Parliament are likely to be abused, Burger, CJ stated;

"The authors of our Constitution were well aware of the G history of both the need for the privilege and the abuses that could flow from too sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerates and protects behaviour on the part of the Members not tolerated and protected when done by other citizens, but the shield does not extend H

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

A beyond what is necessary to preserve the integrity of the legislative process". (emphasis supplied)

32Copy pinpoint32. From the above cases, it is clear that in the United States, the House possesses the power of observance of discipline by its members and in appropriate cases, such power extends to expulsion. It is also clear that such power has been actually exercised for disorderly behavior in the House as also outside the House, where the House was satisfied that the member was 'unfit' physically, mentally or morally even if such conduct could not be a 'statutable offence' or was not committed by him in his official capacity or during House in Session or at the seat of Government.

AUSTRALIAN LAW

33Copy pinpoint33. The provisions relating Parliamentary privileges under the Constitution of Australia were similar to our Constitution. Section 49 D declared powers, privileges and immunities of the Senate and of the House of Representatives and its Members. It was as follows;

"The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the Members and the Committees of each House, shall be such as are declared by the Parliament, and E until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth. " (emphasis supplied)

34Copy pinpoint34. Enid Campbell in his book 'Parliamentary Privilege in Australia', F dealing with 'Expulsion', states;

"At common law, the House of Commons is recognized to have power to expel a member for misconduct unfitting him for membership even where that misconduct is not such as to disqualify him from parliamentary office. There is no doubt that those G Australian Houses of Parliament invested by statute with the powers and privileges of the House of Commons enjoy the same power, but the position with regard to other Houses is not so clear. At common law, Colonial Legislatures do not possess punitive powers, though there is dictum in Barton v. Taylor to the effect that they do have power to expel for aggravated or persistent

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 549

misconduct on the ground that this may be necessary for the self protection of the legislature. Where a member is expelled, his seat thereupon becomes vacant. He is not, however, disqualified from being again elected and returned to parliament".

35Copy pinpoint35. Discussing powers of Colonial Assemblies, the learned author states that though such Assemblies do not possess 'punitive' powers, it is inconceivable that they cannot make rules for the orderly conduct of business. Even if they have no authority to expel a member in absence of specific provision to that effect, they may suspend disorderly members in appropriate cases.

, "The dignity of a Colonial Parliament acting within its limits, requires no less than that of the Imperial Parliament that any tribunal to whose examination its proceedings are sought to be submitted for review should hesitate before it undertakes the function of examining its administration of the law relating to its internal affairs". (emphasis supplied) D

36Copy pinpoint36. It may also be stated that Odger in his 'Australian Senate Practice', (I Ith Edn.; p. 57) observes;

"The recommendation, and the consequent provision in section 8 of the 1987 Act, was oppo5ed in the Senate. It was argued that there may well be circumstances in which it is legitimate for a House E to expel a member even if the member is not disqualified. It is not '·- difficult to think of possible examples. A member newly elected may, perhaps after a quarrel with the member's party, embark upon highly disruptive behaviour in the House, such that the House is forced to suspend the member for long periods, perhaps for the F bulk of the member's term. This would mean that a place in the House would be effectively vacate, but the House would be powerless to fill it. Other circumstances may readily be postulated. ... The House, however, denied themselves the protection of expulsion" . \

37Copy pinpoint37. Lumb and Ryan ('The Constitution of the Commonwealth of G Australia'; 1974 Edh.) stated that each House of the Federal Parliament has the right to suspend a member for disorderly conduct. The power is exercised to punish persistent interjectors or for refusal to withdraw an offensive remark. "Jn extreme cases a member may be expelled". (emphasis supplied) H

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