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

38Copy pinpoint38. In 1920, Hugh Mahon, Federal Member of Kalgoorlie was expelled from the House of Representatives for making a 'blistering' public speech against British Rule in Ireland.

39Copy pinpoint39. It is no doubt true that pursuant to the report of the Joint Select Committee on Parliamentary Privilege ( 1984), a specific Act has been enacted, B known as the Parliamentary Privileges Act, 1987 (Act 21 of 1987). Section 8 of the said Act expressly bars a House to expel any of its members. It reads:

"A House does not have power to expel a member from membership of a House". c

40Copy pinpoint40. It is, therefore, clear that only recently, the power to expel a member ' from the House has been taken away by a specific statute.

CANADIAN LAW

41Copy pinpoint41. The legal position under the Constitution of Canada is different to some extent. Section 18 of the Constitution of the Dominion of Canada, 1867 states;

"The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereofrespectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those. at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof" (emphasis supplied)

42Copy pinpoint42. It is thus clear that unlike India, in Canada, the Legislature could not enlarge its privileges by enacting a law investing in it the privileges enjoyed by British Parliament. There is no such limitation under Section 49 of the Australian Constitution nor under Article 105(3) or Article 194(3) of the Indian Constitution.

H 4 3. In spite of the above provision in the Constitution, the right of the

~ RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.) 551

- ....._ House to expel a member has never been challenged. Sir John George Bourinot, in his work 'Parliamentary Procedure and Practice in the Dominion of Canada', (4th Edn., p.64), states; A

"The right of a legislative body to suspend or expel a member for what is sufficient cause in its own judgment is undoubted. Such a power is absolutely necessary to the conservation of the dignity B and usefulness of a body. Yet expulsion, though it vacates the seat of a member, does not create any disability to serve again in Parliament".

44Copy pinpoint44. The learned counsel for the parties also drew our attention to certain cases from Canada. We may notice only few recent decisions. c

~ ' 45. In Speaker of the House of Assembly v. Canadian Broadcasting Corporation, [1993] 1 SCR 319, the Broadcasting Corporation made an application to the Nova Scotia Supreme Court, Trial Division for an order allowing it "to film the proceedings of the House of Assembly with its own D cameras". The application was based on the Canadian Charter of Rights and Freedoms which guaranteed freedom of expression and freedom of press. ~ The Corporation claimed that it was possible to film the proceedings from \i the public gallery with modem equipments. The Speaker, however, declined permission on the ground that Corporation's proposal would interfere with "the decorum and orderly proceedings of the House". The Trial Judge E granted the claim which was upheld in appeal. The Speaker approached the Supreme Court.

46Copy pinpoint46. One of the questions raised before the Supreme Court was as to whether the House could exercise privilege by refusing access to the media. _.,. F Lamer, CJ discussed the doctrine of privilege in detail in the light of the •I doctrine of necessity. Referring to Stockdale v. Hansard, (1839) 9 Ad & E 1 : 112 ER 1112 (QB), he stated that parliamentary privilege and immunity are founded upon necessity. 'Parliamentary privileges' and the breadth of individual privileges encompassed by that term were accorded to members ---,' of the Houses of Parliament and the Legislative Assemblies because they G were considered necessary for the discharge of their legislative functions.

47Copy pinpoint47. Mc Lachlin, J. (as she then was) agreed with the learned Chief Justice and observed that Canadian legislative Assemblies could claim as ·············-( """" inherent privileges those rights which were necessary to their 'capacity to H

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

48Copy pinpoint48. The Court also considered the ambit and scope of judicial review and exercise of parliamentary privilege. Referring to Sir Erskine May that c "after some three and a half centuries, the boundary between the competence of the law courts and the jurisdiction of either House in matters of privilege is still not entirely determined", the Court observed that originally the Houses of Parliament took the position that they were the exclusive judges of their privileges. They claimed to be 'absolute arbiters' in respect of parliamentary privileges and took the stand that their decisions were not D reviewable by any other Court or Authority. The Courts, on the other hand, treated lex parliamentis to be part of the 'law of the land' and as such, within their judicial control. Judiciary exercised the power particularly when issues involved the rights of third party. According to Courts, their role was to interpret the law of Parliament and to apply it.

49Copy pinpoint49. Holding the test of 'necessity' for privilege as 'jurisdictional test', the learned Judge stated; "The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute 'parliamentary' or 'legislative' jurisdiction. If a matter falls within this necessary sphere of F matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will inst_ead fall to the exclusive jurisdiction of the legislative body. (emphasis supplied)

50Copy pinpoint50. Keeping in view important roles of different branches of Government, it was observed;

"Our democratic' government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 553

"'"-+- executive; and the courts. It is fundamental to the working of A government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other".

51Copy pinpoint51. Reference was also made to Fred Harvey v. Attorney General for B New Brunswick, [1996] 2 SCR 876. In that case, a Member of provincial ' _..., Legislature was convicted of illegal practice and was expelled from legislature pursuant to provincial elections legislation. The allegation proved against him was that he had induced a 16-year old female to vote in the election, knowing fully well that she was not eligible to vote. He was also disqualified for a period of five years from contesting any election. The Court of Appeal c dismissed the appeal of the appellant. The aggrieved Member approached the Supreme Court.

52Copy pinpoint52. Dismissing the appeal and upholding the order of the Court of Appeal, the Supreme Court held that there was no question that the D appellant's actions amounted to an attack on the integrity of the electoral °'+- process which was at the heart of a free and democratic society and constituted a breach of trust deserving of censure.

53Copy pinpoint53. Dealing with Parliamentary privileges and jurisdiction of Courts, Mc Lachlin, J. stated: E "If democracies are to survive, they must insist upon the integrity of those who seek and hold public office. They cannot tolerate corrupt practices within the legislature. Nor can they tolerate electoral fraud. If they do, two consequences are apt to -~ result. First, the functioning of the legislature may be impaired. F Second, public confidence in the legislature and the government may be undermined. No democracy can afford either.

When faced with behaviour that undermines their fundamental integrity, legislatures are required to act. That action may range from discipline for minor irregularities to expulsion and G disqualification for more serious violations. Expulsion and disqualification assure the public that those who have corruptly -"• taken or abused office are removed. The legislative process is purged and the legislature, now restored, may discharge its duties as it should " (emphasis supplied) H

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

54Copy pinpoint54. It was, however, added that it was not to say that the courts have no role to play in the debate which arises where individual rights are alleged to conflict with parliamentary privilege. Under the British system of parliamentary supremacy, the courts arguably play no role in monitoring the exercise of parliamentary privilege. In Canada, that has been altered by the Charter of 1926. To prevent abuses cloaked in the guise of privilege from B trumping legitimate Charter interests, the courts must inquire into the legitimacy of a claim of parliamentary privilege. As clarified in Canadian Broadcasting Corporation, the courts may question whether a claimed privilege exists. This screening role means that where it is alleged that a person has been expelled or disqualified on invalid grounds, the courts must c determine whether the act falls within the scope of parliamentary privilege. If the court concludes that it does, no further review lies. (emphasis supplied)

55Copy pinpoint55. It was also stated that British Jurisprudence makes distinction between privileges asserted by resolution and privileges effected automatically by statute. In respect of privileges asserted by resolution, British Courts have developed a doctrine of necessity, enabling them to inquire whether the action taken by resolution is necessary to the proper functioning of the House. The 'necessity inquiry' does not ask whether the particular action at issue was necessary, and hence does not involve substantive judicial review. It rather asks whether the dignity, integrity and efficiency of the legislative body could be maintained if it were not permitted to carry out the type of action sought to be taken, for example to expel a member from the Legislature or disqualify a person from seeking office on ground of corruption.

56Copy pinpoint56. A question was raised a!"> to whether Parliament could expel any of its members. Upholding such right, the Court stated;

"The power of Parliament to expel a member is undoubted. This power has been repeatedly exercised by the English and Colonial Parliaments, either when members have been guilty of a positive crime, or have offended against the laws and regulations of the G House, or have been guilty of fraudulent or other discreditable acts, which proved that they were unfit to exercise the trust which their constituents had reposed in them, and that they ought not to continue to associate with the other members of the legislature. ... Expulsion may be justified on two grounds: to enforce discipline H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA (C.K. THAKKER, l] 555

within the House; and to remove those whose behaviour has made A them unfit to remain as members.

xxxx xx xx xxxx

The right of expulsion on these two grounds - discipline and unfit behaviour - is a matter of parliamentary privilege and is not B . , subject to judicial review". (emphasis supplied)

The Court concluded;

"This protection is now accepted, in Canada as in Britain, as a c fundamental ten~t of parliamentary privilege. The point is not that the legislature is always right. The point is rather that the legislature is in at least as good a position as the courts, and often in a better position, to decide what it requires to function effectively. In these circumstances, a dispute in the courts about the propriety of the D legislative body's decision, with the delays and uncertainties that such disputes inevitably impose on the conduct of legislative business, is unjustified".

57Copy pinpoint57. Very recently, in House ofCommons v. Satnam Vaid, [2005] 1 SCR E 667, a chauffeur of a Speaker in spite of an order in his favour, was not reinstated in service. He made a complaint to the Canadian Human Rights Commission to investigate into the matter. The Commission accepted the complaint of the employee and referred the matter to the Tribunal. The Speaker challenged the jurisdiction of the Tribunal contending that it was his power of 'hire and fire' and there was no review. The Tribunal dismissed the challenge. The Federal Court upheld the Tribunal's decision. When the matter reached the Supreme Court, the question as to applicability of privileges was raised. It was held that within categories of privilege, Parliament was the sole judge of the occasion and manner of its exercise and such exercise was not reviewable by the courts. However, the existence and scope of the privileges could be inquired into by courts.

58Copy pinpoint58. Binnie J. stated; "It is a wise principle that the courts and Parliament strive to respect each other's role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the H

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

A sub Judice rule. The courts, for their part, are careful not to, interfere with the workings of Parliament. None of the parties to this proceeding questions the pre-eminent importance of the House of Commons as 'the grand inquest of the nation'. Nor is doubt thrown by any party on the need for its legislative activities to proceed unimpeded by any external body or institution, including the courts. It would be intolerable, for example, if a member of the B House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker's choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary courts that the c Speaker's choice violated the member's guarantee of free speech under the Charter. These are truly matters 'internal to the House' to be resolved by its own procedures. Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation's business and on that account would be unacceptable even if, in the D end, the Speaker's rulings were vindicated 1 as entirely proper".

59Copy pinpoint59. Emphasising on resolution of conflict between Parliament and __,,.., Courts in respect of 'legitimate sphere of activity, of the. other', the Court observed; E "Our democratic, government consists. of several branc~es: the Crown, as represented by the Governor General and the provincial counterparts of ~at office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole t:pat all these parts play their proper role. It is equally F fundamental that no one of thetp overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other".

ENGLISH LAW

60Copy pinpoint60. English Constitution was neither· established by any single action nor on any particular day. It has grown· from the political institutions. of people who respected monarchy but equally insisted for democracy and parliamentary institution. The origins. of parliamentary privileges, are thus inextricably interwined with the history of Parliament in· England; and more H specifically, the battle between English· Monarch and Parliament; between

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 557

the House of Commons and House of Lords as also between Parliament and A Courts.

61Copy pinpoint61. Parliament emerged in the thirteenth century. English legal history traces its roots in Magna Carta. Magna Carta had been described as a 'constitutional myth' because it was a document which came into existence on account of grievances of feudal magnates (barons) (Ann Lyon : B 'Constitutional history of the United Kingdom, (2003); p.39). The Magna Carta declared that the King was not above the law.

62Copy pinpoint62. In its creative sense, in England the House did not sit down to build its edifice of the powers, privileges and immunities of Parliament. The c evolution of English Parliamentary institution has thus historical development. It is the story of conflict between Crown's absolute prerogatives and Commons' insistence for powers, privileges and immunities; struggle between high handed actions of Monarchs and People's claim of democratic means and methods. Parliamentary privileges are the rights which Houses of Parliament and members possess so as to enable them to carry out their D functions effectively and efficiently. Some of the parliamentary privileges thus preceded Parliament itself. They are, therefore, rightly described by Sir Erskine May as 'fundamental rights' of the House as against the prerogatives of the Crown, the authority of ordinary Courts of Law and the special rights of the House of Lords. E

63Copy pinpoint63. Initially, the House simply claimed privilege. They neither made request to the Crown for their recognition nor to Courts for their enforcement. Parliamentary privileges in that sense are outside the law, or a law unto themselves. For instance, the House would not go to Crown or to Court for F release of its member illegally detained. It would also not pray for a writ of habeas corpus. It would simply command the Sergeant-at-Arms with the ceremonial mace to the prison and get the Member released on its own authority.

64Copy pinpoint64. As Holdsworth ('A History ofEnglish Law', Second Edition; pp.92- G 93), stated; "It was the privilege of the House which enabled it to act freely, to carry on the controversy with the King in a Parliamentary way, and thus .'" to secure a continuous development of constitutional principles. It is, therefore, not surprising to find that the earliest controversies between James I and his Parliaments turned upon questions of privilege, and that H

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

A these same questions were always in the forefront of the constitutional controversies all through this period". He also added that Parliament asserted and used its privileges to win for itself the position of a partner with the King in the work of governing the State.

65Copy pinpoint65. Sir Edward Coke was in favour of'High Court of Parliament' having B its Jaw and was of the view that the matters decided in Parliament were not part of Common Law. He observed that it was not for a Judge to judge any law, custom or privilege of Parliament. The laws, customs, liberties and privileges of Parliament are better understood by precedents and experience than can be expressed by a pen. c As Lord Tennyson stated;

"A land of settled government, A land of just and old renown, Where Freedom slowly broadens down, D From precedent to precedent."

66Copy pinpoint66. Let us consider the view points of learned authors, jurists and academicians on this aspect.

67Copy pinpoint67. In Halsbury 's Laws of England, (Fourth Edn.; Reissue: Vol. 34; p. E 569; para 1026); it has been stated;

"House of Commons' power of expulsion.

Although the House of Commons has delegated its right to be the judge in controverted elections, it retains its right to decide upon the qualifications of any of its members to sit and vote in Parliament.

If in the opinion of the House a member has conducted himself in a manner which renders him unfit to serve as a member of Parliament, he may be expelled, but unless the cause of his expulsion by the House constitutes in itself a disqualification to sit and vote in the House, he remains capable of re-election." (emphasis supplied)

68Copy pinpoint68. From the above statement of law, it is explicitly clear that the two things, namely, (i) expulsion; and (ii) disqualification are different and

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 559

-. -+ distinct. A member can be expelled by the Legislature if his conduct renders him 'unfit' to continue as such. It, however, does not ipso facto disqualify him for re-election. An expelled member may be re-elected and no objection can be raised against his re-election, as was the case of John Wilkes in 1769. A

69Copy pinpoint69. 0. Hood Phillips also states ('Constitutional and Administrative Law', Fourth Edition; p. 180) that the House may also expel a member, who although not subject to any legal disability, is in its opinion unfit to serve as a member. This is commonly done when the Court notifies the Speaker that a member has been convicted of a misdemeanour. The House cannot prevent an expelled member from being re-elected, as happened several times in the case of John Wilkes between 1769 and 1794, but it can refuse to allow him to take seat.

70Copy pinpoint70. Wade and Phillips also expressed the same opinion. In 'Constitutional Law', (7th Edition; p. 793); it was stated;

"The House of Commons cannot of course create disqualifications unrecognized by law but it may expel any member who conducts himself in a manner unfit for membership".

71Copy pinpoint71. Sir William Anson in "The Law and Custom of the Constitution", (Fifth Edn; Vol. I; pp. 187-88) states; E "In the case of its own members, the House has a stronger mode of expressing its displeasure. It can by resolution expel a member, and order the Speaker to issue his warrant for a new writ for the seat from which the member has been expelled. But it

--"1- cannot prevent the re-election of such a member by declaring him F incapable of sitting in that Parliament. In attempting to do this, in the case of Wilkes, the House had ultimately to admit that it could not create a disqualification unrecognized by law".

72Copy pinpoint72. Griffith and Ryle in "Parliament, functions, practice and procedures", (1989), at p. 85 stated; G "The reconciliation of these two claims the need to maintain parliamentary privileges and the desirability of not abusing them - has been the hall-mark of the House of Commons treatment of privilege issues in recent years". H

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

73Copy pinpoint73. Dealing with the penal powers of the House, ·the learned authors ~- .. proceeded to state: (pp. 91-92);

"Laws are meaningless unless there is power to enforce them by imposing penalties on those who wreak them. The House does not rely on the courts but has its own penal jurisdiction. B The severest and historically most important power is that of commitment .....

Two other punishments can be ordered for Members who offend the House namely expulsion, or suspension from the c service of the House for a specified period or until the end of the session.

Expulsion is the ultimate sanction against a Member. It is an outstanding demonstration of the House's power to regulate its own proceedings, even its composition. The expulsion of a Member cannot be challenged." (emphasis supplied) +

74Copy pinpoint74. Consideration of powers, privileges and immunities of the British Parliament would not be complete if one does not refer to relevant statements and propositions oflaw by Sir Erskine May in his celebrated and monumental work titled 'Treatise on the Law, Privileges, Proceedings and Usage of Parliament'. "This work has assumed the status of a classic on the subject and is usually regarded as an authoritative exposition of parliamentary practice".

75Copy pinpoint75. The attention of the Court was, however, invited to the changed ~-- approach by the Revising Authors on the power of Parliament to expel a member. It would, therefore, be appropriate if I refer to both the editions of 1983 and of2004.

76Copy pinpoint76. In Twentieth Edition by Sir Charles Gordon (1983), in Chapter 9 (Penal Jurisdiction of the Houses of Parliament), it had been stated;

"PUNISHMENT INFLICTED ON MEMBERS

In the case of contempts committed against the House of H Commons by Members, two other penalties are available, viz.

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 561

suspension from the service of the House and expulsion. In some A cases expulsion has been inflicted in addition to committal.

There was a sub-topic as under;

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

77Copy pinpoint77. In Twenty-third Edition by Sir William McKay (2004), Chapter 9 titles (Penal jurisdiction ofBoth Houses). The relevant discussion reads thus;

PUNISHMENT OF MEMBERS D

In the case of contempts committed against the House of Commons by Members, or where the House considers that a Member's conduct ought to attract some sanction (see pp. 132-33), two other penalties are available in addition to those already E mentioned: suspension from the service of the House, and expulsion, sometimes in addition to committal.

Under sub-topic 'Expulsion', it was stated;

EXPULSION F ··-~ The expulsion by the House of Commons of one of its Members may be regarded as an example of the House's power to regulate its own constitution, though it is, for convenience, treated here as one of the methods of punishment at the disposal of the House. Members have been expelled for a wide variety of causes." G

78Copy pinpoint78. On the basis of above, it was submitted by the learned counsel for . the petitioners that the power of expulsion by Parliament as an independent punishment has not been recognized by May. It has now remained as part of power to regulate its own constitution. Since no such power has been H

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

A possessed by Indian Parliament, it cannot expel any member.

79Copy pinpoint79. I must frankly admit that I am unable to agree with the learned counsel. The Revising Author refers to punishment of members and in no uncertain terms states that if the House considers conduct (misconduct) of a Member objectionable attracting sanction, appropriate punishment can be B imposed on him. Over and above other penalties, 'expulsion' has been specifically and expressly mentioned therein. As will be seen later on in this judgment, the Framers of our Constitution have also reserved this right with .~

the Parliament/State Legislature. The above argument of the petitioners, in my opinion, therefore, does not carry the case further. c ILLUSTRATIVE CASES

80Copy pinpoint80. Though several cases have been cited by the learned counsel for both the sides in support of their contentions and submissions, I will refer to the cases which related to expulsion of membership of Parliament. D

81Copy pinpoint81. Probably, the earliest case was of Mr. Hall. In 1580, Mr. Hall, a Member of House of Commons published a book containing derogatory remarks against the Members of the House. On the basis of a complaint, the matter was referred to the Privilege Committee which found him guilty. In E spite of apology tendered by him, he was committed to the Tower of London for six months, was fined and also expelled.

82Copy pinpoint82. In a subsequent case in 1707, Mr. Asquill, a Member of Parliament wrote a book wherein disparaging remarks on Christian Religion were made. Though nothing was stated by him against the House or against Members F of the House, Mr. Asquill was expelled being 'unfit' as Member.

83Copy pinpoint83. Asquill thus established that the House of Commons could expel a Member for his actions even outside the House provided the House finds him unfit to be continued as a Member of Parliament. G

84Copy pinpoint84. In 1819, Mr. Hobhouse, a Member of House of Commons wrote a pamphlet making the following comment;

"Nothing but brute force, or the pressing fear of it would reform Parliament". H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 563

85Copy pinpoint85. Contempt proceedings were initiated against Hobhouse and he was A imprisoned.

86Copy pinpoint86. In 1838, Mr. O'Connell, a member of House of Commons said, outside the house of Parliament;

"Foul perjury in the Torry Committees of the House of Commons- B who took oaths according to Justice but voted for Party. "

87Copy pinpoint87. He was reprimanded. Mr. Sandham was likewise admonished in 1930 for levelling allegations against the Members of the House.

88Copy pinpoint88. Special reference was made to Bradlough v. Gossett, (1884) 12 QBD c

275. In that case, B, duly elected Member of Borough was refused by the Speaker to administer oath and was excluded from the House. B challenged the action.

89Copy pinpoint89. It was held that the matter related to the internal management of the House of Commons and the Court had no power to interfere.

Lord Coleridge, C.J. stated;·

What is said or done within the walls of Parliament cannot be inquired into in a court of law ... The jurisdiction of the Houses over their own Members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, "They would sink into utter contempt and efficiency without it". (Burdett v. Abbot, 14 East 148, 152). F

90Copy pinpoint90. Dealing with the contention that the House exceeded its legal process in not allowing B to take oath which he had right to take, the learned Chief Justice said; "If injustice has been done, it is injustice for which the courts oflaw afford no remedy." An appeal should not be made to the Court but to the constituencies. G

91Copy pinpoint91. As observed by His Lordship in Stockdale v. Hansard, (1839) 9 Ad & E 1 : 112 ER 1112 (QB), "the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules or derogation from its dignity, stands upon the clearest grounds of necessity." H

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

92Copy pinpoint92. Stephen, J. was much more specific and emphatic. He. said;

'The legal question which this statement of the case appears to me to raise for our decision is this: - Suppose that the House of Commons forbids one of its members to do that which an Act of Parliament requires him to do, and, in order to enforce its B prohibition, directs its executive officer to exclude him from the House by force if necessary, is such an order one which we can declare to be void and restrain the executive officer of the House from carrying cut? In my opinion, we have no such power. I think that the House of Commons is not subject to the control of Her C Majesty's Courts in its administration of the control of Her Majesty's €ourts in its administration of that part of the statute- law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable".

93Copy pinpoint93. It was further stated; "It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if that interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly". E His Lordship concluded;

"In my opinion the House stands with relation to such rights and to the resolutions which affect their exercise, in precisely the same relation as we the judges of this Court stand in to the laws which regulate the rights of which we are the guardians, and to the judgments which apply them to particular cases; that is to say, they are bound by the most solemn obligations which can bind men to any course of conduct whatever, to guide their conduct by the law as they understand it. If they misunderstand it, or (I apologize for the supposition) willfully disregard it, they resemble mistaken or unjust judges; but in either case, there is in my judgment no appeal from their decision. The law of the land gives no such appeal; no precedent has been or can be produced in which any Court has ever interfered with the internal affairs of either House of Parliament, though the cases are no doubt numerous in which the Courts have H

·- i RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 565

declared the limits of their powers outside of their respective A -\. Houses. This is enough to justify the conclusion at which I arrive".

94Copy pinpoint94. One may not agree with the wider observations of Stephen, J. particularly in the light of written Constitution and power of Judicial Review conferred on this Court which has been held to be 'basic feature' of our Constitution. But it certainly indicates approach of judiciary while dealing B with powers, privileges and rights of Parliament over its members.

- "' 95. I may also refer to a case which is very much relevant and was referable to a point in time our Constitution was about to commence.

96Copy pinpoint96. One Garry Allingham, a Member of Parliament got published an c article on April 3, 1947 (before few months oflndependence oflndia) making derogatory remarks against members of the House. A complaint was made to the House of Commons. Allingham was called upon to explain his conduct by the House. Allingham offered regrets for unfounded imputations against Members and tendered unconditional apology and said; D -... .,.,, . "I have humbly acknowledged my mistake, and nothing could be more sincere and heart-felt than my remorse for my action. Having done all that it is humanly possible to do to put this deeply regretted affair straight, I am content to submit myself to this House, confident that it will act in its traditional spirit of justice and E generosity".

97Copy pinpoint97. After the close of Allingham's speech a resolution was proposed holding him guilty of gross contempt of the House and to 'proceed with ,.. utmost severity against such offender'. A motion was moved to suspend ~'r F Allingham from service of the House for six months and to deprive him of salary. for that period. But an amendment to the motion was sought to the effect that Allingham be expelled from the House and finally the amended resolution was passed by the House.

98Copy pinpoint98. Allingham thus clearly established that on the eve of British Empire G in this country and on the dawn of Independence of India, one of the powers and privileges enjoyed by British Parliament was power of expulsion

- of a member from Parliament.

99Copy pinpoint99. Finally, I may refer to a post-Constitution case of Mr. Peter Arthus H

-t 566 SUPREME COURT REPORTS (2007] I S.C.R.

A David Baker (1954). He was a Member of House of Commons. A competent ,l-'-

Court of Law held him guilty of forgery and convicted and sentenced him. The factum of conviction was officially communicated by the Court to the Speaker of the House. Baker, in his letter to the Speaker of the House, expressed remorse about his conduct which was not connected with his position and status as a member of the House. B He, inter alia, stated;

"I must end as I began, by begging the House to accept my most sincere apology. I can only assure you that my regret, remorse and repentance during the past three months were doubted by the knowledge that, in addition to my friends and colleagues elsewhere, I had also embarrassed my friends and colleagues in the House of Commons. I can only ask you and, through you, them to accept this expression of these regrets."

100Copy pinpoint100. The entire letter was read out to the House. After consideration, the following resolution was passed;

"Resolved, that Mr. Peter Arthus David Baker be expelled from this House. "

E l 01. Baker proved that the House of Commons possessed and continued to possess power to expel a Member for his objectionable activity not only in the House in his capacity as a Member as such but also outside the House if it is found to be otherwise improper, or tarnishing the image of the House in public eye or making him 'unfit' to continue to be a Member F of an august body.

102Copy pinpoint102. [This case is also relevant inasmuch as the Constitution (Forty- fourth Amendment) Act, 1978 by which Article 105(3) has been amended, lays down that whenever a question of powers, privileges and immunities of Parliament arises, it will be ascertained whether such power, privilege or G immunity was available to the House of Commons on the day the Amendment came into force, i.e. on June 20, 1979].

103Copy pinpoint103. The petitioners strongly relied upon a decision of the Judicial Committee of the Privy Council in Edward Keilley v. William Carson, (1842): H 4 MOO PC 63 : 13 ER 225. K was a District Surgeon and Manager of Hospital

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 567

while C was a Member of Assembly of Newfoundland. C made certain A ..... adverse remarks in respect of Hospital Management by K. K threatened C for criticizing the management and added; "Your privilege shall not protect you". C complained to the House. The Committee of Privilege found K guilty of the breach of privilege of the House and committed him to the goal.

104Copy pinpoint104. K thereupon brought an action of trespass and false imprisonment B against the defendants but failed. Before the Privy Council, one of the -.....' questions was as to whether the Assembly of Newfoundland had power to .... ""• commit for breach of privilege, as incident to the House as a legislative body. According to K, the Assembly did not possess such power. Drawing the distinction between (a) conquered colonies, and (b) settled colonies, it c was urged that in the former, the power of the Crown was paramount, but in the latter, the Colonists carried with them the· great Charter of Liberty (Magna Carta) that "No man shall be imprisoned but by the lawful judgment of his peers, or by the law of the land."

105Copy pinpoint105. The Privy Council held that Newfoundland was a settled and not D a conquered colony and the settlers carried with them such portion of its '--..,.-- Common Law and Statute Law as was conferred and also the rights and immunities of British subjects. The Judicial Committee held that the Crown did not invest upon the Legislative Assembly of Newfoundland the power to commit for its contempt. E l 06. The Committee then proceeded to consider the question thus:

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

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

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

A to perform. This is the principle which governs all legal incidents. "Quando lex aliquid concedit, concedere videtur et illud, sine qua res ipsa esse non potest. "* In conformity to this principle we feel no doubt that such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every measure which it may be really necessary B to adopt, to secure the free exercise of their Legislative functions, they are justified in acting by the principle of the Common Law. But I the power of punishing any one for past misconduct as a contempt )-- of its authority, and adjudicating upon the fact of such contempt, and the measure of punishment as a judicial body, irresponsible to c the party accused, whatever the real facts may be, is of a very different character, and by no means essentially necessary for the )- exercise of its functions by a local Legislature, whether representative j_

or not. All these functions may be well performed without this rr- extraordinary power, and with the aid of the ordinary tribunals to investigate and punish contemptuous insults and interruptions. D These powers certainly do not exist in corporate or other bodies, assembled, with authority, to make bye-laws for the government of particular trades, or united numbers of individuals. The functions of a Colonial Legislature are of a higher character, ,_ E and it is engaged in more important objects; but still there is no reason why it should possess the power in question.

It is said, however, that this power belongs to the House of Commons in England and this, it is contended, affords an authority for holding that it belongs as a legal incident, by the Common Law, F to an Assembly with analogous functions. But the reason why the House of Commons has this power, is not because it is a Y - ~- representative body with legislative functions, but by virtue of 1

ancient usage and prescription; the lex et consuetude Parliamenti, which forms a part of the Common Law of the land, and according to which the High Court of Parliament, before its division, and the G Houses of Lords and Commons since, are invested with many peculiar privileges, that of punishing for contempt being one. And, besides, this argument from analogy would prove too much, since it would be equally available in favour of the assumption by the

H * When the law gives anything to anyone, all incidental things are also tacitly given.

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 569

Council of the Island, of the power of commitment exercised by the A House of Lords, as well as in support of the right of impeachment by the Assembly a claim for which there is not any colour of foundation.

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

Their Lordships, therefore, are of opinion, that the principle of the Common Law, that things necessary, pass as incident, does not give the power contended for by the Respondents as an incident to, and included in, the grant of a subordinate Legislature". (emphasis supplied)

107Copy pinpoint107. The Council, in the light of above legal position did not approve the law laid down earlier in Beaumont v. Barrett, (1836) I MOO PC 80, (in which such right was upheld and it was ruled that Legislative Assembly of Jamaica had inherent power to punish for contempt of the Assembly) and overruled it.

108Copy pinpoint108. It was submitted that distinguished jurists and eminent judges considered the question in Keilley and concluded that Assembly of F Newfoundland had no power to commit a person for contempt which was exercised by the British Parliament. The ratio in Keilley applies with equal force to Indian Parliament and it must be held that the position of our Parliament is not different than that of Newsouthland and it also does not possess such power claimed and exercised by British Parliament. G

109Copy pinpoint109. I am unable to agree with the learned counsel for the petitioners. In my judgment, Keilley has no application inasmuch as it was decided in the light of factual, political and legal background which was totally different. For more than one reason, the ratio in Keil/ey cannot be pressed in service in the case on hand. Firstly, India, after 1950, cannot be termed H

ii 570 SUPREME COURT REPORTS [2007] I S.C.R.

A as a 'colonial country' nor its Legislature Colonial or subordinate. Secondly, -\-"" .. it was not to derive powers, privileges or prerogatives from the Crown either ' expressly or impliedly. Thirdly, after January 26, 1950, it is the written Constitution which has conferred powers, privileges and immunities on Parliament/Legislatures and on their members. Fourthly, provisions of the Constitution themselves expressly conferred certain powers, privileges and B immunities [Arts. I 05(1 ), (2); 194 (1), (2)]. It also allowed Parliament to define them by making an appropriate law and declared that until such law is ~ enacted, they would be such as exercised by British Parliament on January ~~

26, 1950 [Arts. 105(3), 194(3)]. Fifthly, the crucial question, in my opinion is not the fact that the Assembly of Newsouthland had no right to commit a c person for contempt but whether or not the British Parliament possessed such power on January 26, 1950. Sixthly, Keil/ey was not a member of Assembly and as such the ruling in that case has no direct bearing on the issue raised b,efore this Court. Finally, Keilley was a case of committal of a person to jail and keeping in view the fact situation, the Privy Council decided the matter which is absent here. For all these reasons, in my D considered opinion, reliance on Keilley is of no assistance to the petitioners. yf

110Copy pinpoint110. In fact, in a subsequent case in Thomas William Doyle v. George Charles Falconer, (1866) LR 1 PC 328, the distinction between power to punish for contempt and power to take other steps had been noted by the E Privy Council. It held that the Legislative Assembly of Dominica did not have the power to punish for contempt as no such power was possessed by a Colonial Assembly by analogy of lex et consuetude Parliamenti which was inherent in Houses of Parliament in the United Kingdom as the High Court of Parliament, or in a Court of Justice as a Court ofRecord. A Colonial Assembly had no judicial functions. F Y-

111Copy pinpoint111. The Judicial Committee, however, after referring to Keilley and other cases, proceeded to state;

"If then, the power assumed by the House of Assembly G cannot be maintained by analogy to the privileges of the House of Commons, or the powers of a Court of Record, is there any other legal foundation upon which it may be rested. It has not, as both sides admit, been expressly granted. The learned counsel for the "'· Appellants invoked the principles of the Common Law, and as it must be conceded that the Common Law sanctions the exercise of H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 571

the prerogative by which the Assembly has been created, the A principles of Common Law, which is embodied in the maxim, "Quando lex aliquid concedit, concedere videtur et illud, sine qua res ipsa esse non potest, " applies to the body so created. The question, therefore, is reduced to this : Is the power to punish and commit for contempt for contempts committed in its presence one necessary to the existence of such a body as the Assembly of B Dominica, and the proper exercise of the functions which it is intended to execute? It is necessary to distinguish between a -"' power to punish for a contempt, which is a judicial power, and a power to remove any obstruction offered to the deliberations or proper action of a Legislative body during its sitting, which last power is necessary for self-preservation. If a Member ofa Colonial c House of Assembly is guilty of disorderly conduct in the House whilst sitting, Fze may be removed, or excluded for a time, or even expelled; but there is a great difference between such powers and the judicial power of inflicting a penal sentence for the offence. The right to remove for self-security is one thing, the right to D inflict punishment is another. The former is, in their Lordships' judgment, all that is warranted by the legal maxim that has been cited, but the latter is not its legitimate consequence. To the question, therefore, on which this case depends, their Lordships must answer in the negative." (emphasis supplied) E

(See also Broom's Legal Maxims, 10th Edn; p.314)

112Copy pinpoint112. With respect, the above observations lay down correct proposition of law. F

113Copy pinpoint113. Again, in Barton v. Taylor, (1886) 11 AC 197, the Privy Council, approving Doyle drew a practical line between defensive action and punitive action on the part of the Assembly to be taken against erring members, and said; "Powers to suspend toties quoties, sitting after sitting, in case of repeated offences (and, it may be, till submission or apology), and also to expel for aggravated or persistent misconduct, appear to be sufficient to G meet even the extreme case of a member whose conduct is habitually obstructive or disorderly."

-- 114. An interesting point of law, which has been raised before this Court was also raised before the Supreme Court of New South Wales in H

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

A Armstrong v. Budd, (1969) 71 SR 386 (NSW). Section 19 of the Constitution Act, 1902 laid down that in certain circumstances, a seat in the Legislative Council would automatically fall vacant. A was a member of Legislative Council against whom a suit was filed. During the course of litigation, he gave evidence. The evidence was disbelieved by the Court and in the judgment, certain strictures were passed by the trial Judge. The Legislative B Council, on the basis of comments and adverse observations, passed a resolution and expelled A from the Council and declared his seat vacant. A sought a declaration that the resolution was ultra vires.

115Copy pinpoint115. It was contended by A that since his case was not covered by any C of the eventualities enumerated in Section 19, he could not be disqualified. The Court, however, negatived the contention. It observed that the case did not fall in any of the clauses (a) to (t) of Section 19 of the Act but stated that the said section did not constitute a 'complete code' for the vacation of seat.

D Herron, C.J. stated:

"For there exist well-recognized overriding common-law principles which enlarge parliamentary power. As applying to this case the first or primary essentials may be stated thus: in the absence of express grant the Legislative Council possesses such E powers and privileges as are implied by reason of necessity, the necessity which occasions the implication of a particular power or privilege is such as is necessary to the existence of the Council or to the due and orderly exercise of its functions."

F His Lordship further stated:

"This case appears to me to warrant a decision that in special circumstances there is an area of misconduct of a Member of Parliament committed outside the House and disclosed in curial proceedings which may, in special circumstances, form a basis for G the exercise of the power of expulsion based upon a finding by the House that such is necessary to its existence or to the orderly exercise of its important legislative functions. " (emphasis supplied) \ -

116Copy pinpoint116. Wallace, P. agreed with the learned Chief Justice and observed: H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.) 573

"... I am of the opinion that the Legislative Council has an implied power to expel a member if it adjudges him to have been guilty of conduct unworthy of a member. The nature of this power is that it is solely defensive-a power to preserve and safeguard the dignity and honour of the Council and the power conduct and exercise of its duties. The power extends to conduct outside the Council provided the exercise of the power is solely and genuinely inspired by the said defensive objectives. The manner and the occasion of the exercise of the power are for the decision of the Counsel." (emphasis supplied)

117Copy pinpoint117. Sugerman, J. in concurring opinion formulated the doctrine of necessity in an effective manner by making the following instructive observations;

"This necessity compels not only the conceded power to expulsion arising from disorderly conduct within the Chamber, but also expulsion arising from conduct outside the chamber, which, in the opinion of the Council, renders a man unfit for service and therefore one whose continued membership of the Council would disable the Council from discharging its duty and protecting its dignity in the sense mentioned. That the proper discharge of the legislative function by the Council demands an orderly conduct of its business is undoubted. That it demands honesty and probity of its members should be equally undoubted. Indeed, the need for removal and replacement of a dishonest member may be more imperative as a matter of self-preservation, than that of an unruly member". (emphasis supplied) F

118Copy pinpoint118. Mr. Andhyarujina, Sr. Advocate appearing for Union of India placed before this Court particulars of expulsion of members from the House of Commons in the last three and half centuries. The particulars are as under:

Date Member and Reason G Constituency 22nd John Ashburnham Accepted a bribe (£500 from November (Sussex) merchants who wished to import 1667 French wines). H

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

21st April Hon. Henry Brouncker :.,-' A 1668 (New Romney) Invented orders from the Duke of ..... York to down sail, which prevented England capitalising on its naval victory off Lowestoft in 1665. B 1st Thomas Wancklyn Corrupt misuse of the privilege of "!'-- February (Westbury) Parliament against arrest of MP's 1678 'menial servants'.

c 25th March 1679 Edward Sackville (East Grinstead) Denunciation of Titus Oates as a 'lying rogue' and disbelief in the 'Popish Plot'.

28th Sir Robert Cann, Bt. Statement that the attempt to October (Bristol) exclude the Duke of York from the D 1680 succession was a 'Presbyterian Plot'. ...,..r

29th Sir Francis Wythens Presented a petition abhorring the October (Westminster) summons of a Parliament which 1680 would exclude the Duke of York E from the succession.

14th Sir Robert Peyton Association with the Duke of December (Middlesex) York and alleged complicity in the 1680 'Meal-Tub Plot' (attempt to implicate exclusionists in a plot to Y-

kill the King and establish a Commonwealth).

20th Sir Robert Sawyer Leading the prosecution of Sir January (Cambridge University) Thomas Armstrong for treason in G 1690 the Rye House Plot while Attorney-General. Armstrong was convicted, sentenced to death and l - eventually hanged, but his conviction was later ruled a H miscarriage of justice.

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 575 -J--/.. .J 16th March Sir John Trevor Corruption (Speaker of the House A 1695 (Yarmouth, Isle of of Commons). Paid 1,000 guineas Wight) from the Corporation of London on passage of the Orphans Bill.

26th March John Hungerford Paid 20 guineas from the 1695 (Scarborough) Corporation for his conduct as B _ _,, ---... ... Chairman of the Committee of the Whole House on the Orphans Bill.

1st Charles Duncombe Obliged to pay £10,000 to public February (Downton) funds, Duncombe bought c 1698 Exchequer Bills at a 5% discount and persuaded the seller (John da Costa) to endorse them as though they had been paid to him for excise duty. This allowed him to D ..... ..,. pay them in at face value and keep the discount himself.

1st John Knight Persuaded his brother William and February (Weymouth and Reginald Marriott, a Treasury 1698 Melcombe Regis) Official, falsely to endorse £7 ,000 E of Exchequer Bills as though they were paid to settle tax payments (this meant that the Bills, circulated at a 10% discount, _..-,, increased to their face value). Tried to persuade Marriott to take F the full blame.

10th James Isaacson Commissioner of Stamp Duty; this February (Banbury) office was a disqualification under 1699 the Lottery Act of 1694. G 13th Henry Comish Commissioner in the Stamp Office February (Shaftesbury) managing Duties on Vellum, Paper

- 1699 and Parchment; this office was a disqualification Act of 1694. ~der the Lottery H

576 SUPREME COURT REPORTS [2007) I S.C.R. ~-" A 14th Samuel Atkinson Commissioner for licensing ~ February -(Harwich) hawkers and pedlars; this office 1699 was a disqualification under the Lottery Act of 1694.

14th Sir Henry Fumese Trustee for circulating Exchequer B February (Bramber) Bills; acting as Receiver and 1699 Manager of the subscription of ..,._ __ the new East India Company. These offices were disqualifications under the Lottery c Act of 1694.

20th Richard Wollaston Receiver-General of Taxes for February (Whitchurch) Hertfordshire; this office was a 1699 disqualification under the Lottery Act of 1694. D 19th Sir Henry Furnese Trustee for circulating Exchequer r,... February (Sandwich) Bills; this office was a • 1701 disqualification under the Lottery Act of 1694. E 22nd Gilbert Heathcote Trustee for circulating Exchequer February (City of London) Bills; this office was a 1701 disqualification under the Lottery Act of 1694. ...,.-,~

F lst Rt. Hon. Earl of As Paymaster-General of the February Ranelagh (West Looe) Army, appropriated £904,138 of 1703 public funds; had severe discrepancies in his accounts, which were only made up to March 1692. G 18th John Asgill (Bramber) Indebted to three creditors December (among them Colonel John Rice) 1707 for £10,000. Author of a book which argued that the Bible H proved man may be translated

....- '-f RAJA RAM PAL v. THE HONBLE SPEAKER, LOK SABHA [C.K. THAKKER, J.) 577

"--i.. from life on earth to eternal life in A ,.. heaven without passing through death. The House held it to be blasphemous. The same member was also expelled from the Irish Parliament on 11th October 1703. B + 15th Thomas Ridge (Poole) Having been contracted to supply _....,. February the fleet with 8,217 tuns of beer, 1711 supplied only 4,482 tuns from his brewery and paid compensation at a discounted rate for the non- c supplied beer, thereby defrauding public funds.

12th Robert Walpole Corruption while Secretary at War. January (King's Lynn) Forage contracts he negotiated 1712 stipulated payments to Robert D ...... __, Mann, a relation of Walpole's, but Walpole signed for them and therefore received the money.

19th Rt. Hon. Adam de While Secretary to the Duke of February Cardonnel E Marlborough, he received an 1712 (Southampton) annual gratuity of 500 gold ducats from Sir Solomon de Medina, an army bread contractor.

--~ 18th March Sir Richard Steele Seditious libel. Published an F 1714 (Stockbridge) article in The Guardian and a pamphlet called The Crisis exposing the government's support for French inaction on the demolition of Dunkirk; demolition was required under the G Treaty of Utrecht.

2nd Thomas Forster Participation in the I 715 Jacobite February (Northumberland) rebellion (he was General of all 1716 the pretender's forces in England). H

~ ~ 578 SUPREME COURT REPORTS [2007] l S.C.R

A 23rd March Lewis Pryse Refused to attend the House to -\" ... 1716 (Cardiganshire) take oaths of loyalty after the Jacobite rebellion.

22nd June John Carnegie Participation in the 1715 Jacobite 1716 (Forfarshire) rebellion. B 23rd Jacob Sawbridge Director of the South Sea January (Cricklade) Company. ... 1721 f---.

28th Sir Robert Chaplin, Bt. Director of the South Sea c January 1721 (Great Grimsby) Company.

28th Francis Eyles (Devizes) Director of the South Sea January Company. 1721 D 30th Sir Theodore Janssen, Director of the South Sea January Bt. (Yarmouth, Isle of Company. 'f'·r 1721 Wight)

8th March Rt. Hon. John Aislabie Negotiated the agreement to take 1721 (Ripon) over the national debt between the South Sea Company and the government, as Chancellor of the Exchequer; received £20,000 of South Sea Company stock; destroyed evidence of his share dealings. y...._

10th March Sir George Caswall Banker of the South Sea Company; 1721 (Leominster) obtained for his company £50,000 stock in the South Sea Company while the South Sea Bill was still before Parliament, and without paying for it.

8th May Thomas Vernon Attempt to influence a member of 1721 (Whitchurch) the committee on the South Sea bubble in favour of John Aislabie, H his brother-in-law.

' ("'- '-f RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 579

.., -; Viscount Barrington Involvement in a Lottery held in 15th A February (Berwick-upon-Tweed) Hanover, but organized in 1723 London. The House declared it illegal.

4th Francis Elde (Stafford) Corrupt attempt to compromise an February election petition against him. B .,... 1725 --'!

16th May John Ward (Weymouth Involved in a fraud against the 1726 and Melcombe Regis) estate of the late Duke of Buckingham - compelled to buy c Alum from Ward's Alum works, but which Ward kept and sold again to others.

30th March John Birch (Weobley) Fraudulent sale of the D 1732 Derwentwater Estate (escheated to ..... -; the Crown by the Earl of ... Derwentwater, convicted of High Treason during the 1715 rebellioil). E 30th March Denis Bond (Poole) Fraudulent sale of the 1732 Derwentwater Estate (escheated to the Crown by the Earl of Derwentwater, convicted of High _.._.,,. Treason during the 1715 F rebellion).

3rd April George Robinson Fraudulent use of the funds of .# 1732 (Great Marlow) the Charitable Corporation for speculation. Diverted £356,000 of G funds (£200,000 of which was in shares of the Corporation) into buying York Buildings Company stock, the profits from the sale of which were given to him. H

-;, RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K THAKKER, J.] 581

- funds of the Westminster A ... "i. Regiment of the Middlesex Militia; cashiered for conduct unbecoming " the character of an officer and a gentleman.

23rd May Joseph Hunt Absconded to Lisbon after being B 1810 (Queenborough) found to have embezzled public funds as Treasurer of the ...,...,. Ordnance. During his term he left a deficit of £93,296.

5th March Benjamin Walsh Convicted (later pardoned) of c 1812 (Wootton Bassett) attempting to defraud Solicitor- General Sir Thomas Plumer. Plumer had given Walsh a draft of £22,000 with which to buy exchequer bills, but Walsh used it D to play the lottery, and lost; he

_._.-... ... then converted his remaining I assets into American currency and set off for Falmouth to sail to America, but was brought back. E Walsh had been expelled by the Stock Exchange for gross and nefarious conduct in 1809.

5th July Hon. Andrew James Convicted of conspiracy to 1814 Cochrane (Grampound) defraud (circulated false rumours F ~ y of the defeat and death of Napoleon Buonaparte in order to boost share prices); absconded to . France before sentence .

5th July Lord Cochrane G Convicted of conspiracy to 1814 (Westminster) defraud (circulated false rumours of the defeat and death of Napoleon Buonaparte in order to boost share prices). ~ H

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

A 16th February 1857 James Sadleir (Tipperary) Absconded after arrest for fraudulent conversion. He had abstracted £250,000 of stock from the Tipperary Joint-Stock Bank for his brother's use. ~ " - ,

B 22nd Charles Bradlaugh Contempt 'of orders of the House February (Northampton) of Commons excluding him from 1882 the Parliamentary estate. ~_......

12th May Edmund Hope Verney Convicted of procuring a girl c 1891 (Buckingham) under the age of 21 (Miss Nellie Maud Baskett) for an immoral purpose.

26th Edward Samuel Wesley Absconded to the United States February de Cobain (Belfast, East) of America after a warrant for his D 1892 arrest on charges of commission of acts of gross indecency was issued. On 21st March 1893 he +/ was convicted and sentenced to ~ twelve months' imprisonment with t:::= hard labour. E 2nd March George Woodyatt Convicted of fraudulent 1892 Hastings conversion. As a Trustee for (Worcestershire, Eastern) property under the will of John ~ Brown, appropriated to himself F over £20,000 from the estate. Y-........-w

1st August Horatio William Convicted of fraudulent )= 1922 Bottomley (Hackney, conversion. Invited contributions South) to the Victory Bond Club which were supposed to be invested in .- G government stock, but were actually diverted to his own use.

30th Garry Allighan Contempt of the House of October (Gravesend) Commons: breach of privilege H 1947 over article in 'World's Press ~

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J .] 583

News' alleging corruption and A drunkenness among Members; lying to the committee investigating the allegations.

16th Peter Arthur David Convicted of uttering forged December Baker (Norfolk, South) documents. Forged signatures on B 1954 letters purporting to guarantee debts in excess of £100,000 owed by his companies.

INDIAN LAW: HISTORIAL BACKGROUND c

119Copy pinpoint119. It is no doubt true that the existing law relating to parliamentary privileges in India is essentially of English origin. But the concept of parliamentary privileges was not unknown to ancient India. Prititosh Roy in his work 'Parliamentary Privilege in India' (1991) states that even during Vedic times, there were two assemblies; Sabha and Samiti which were keeping check on all actions of the King. Reference of Sabha and Samiti is found in all Vedas. In Buddhist India, we find developed parliamentary system. Members were not allowed to disobey directions of Assemblies. Offenders were answerable to Assemblies and after affording an opportunity to them, appropriate actions used to be taken against erring officers. It has thus 'rudimentary fe_atures' of parliamentary privilege of today.

120Copy pinpoint120. In 1600, East India Company came to India primarily as 'trader'. The British Parliament effectively intervened into the affairs of the Company by passing the East India Company Act, 1773 (popularly known as 'the Regulating Act, 1773 '), which was followed by the Act of 1784. The roots of modem Parliamentary system were laid in various Charter Acts of 1833, 1853, 1854, 1861, 1892, 1909, etc.

121Copy pinpoint121. During 1915-50, there was remarkable growth and development of Parliamentary privileges in India. For the first time, a limited right of freedom • G of speech was conferred on the Members of Legislature by the Government of India Act, \ 919 (Section 67). By the Legislative Members Exemption Act, 1925, two parliamentary privileges were allowed to Members; (i) exemption from jury service; and (ii) freedom from arrest. H

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

122Copy pinpoint122. The Government of India Act, 1935 extended the privileges conferred and immunities granted. The Indian Independence Act, 1947 accorded sovereign legislative power on the Indian Dominion.

CONSTITUTIONAL PRO VISIONS

123Copy pinpoint123. The Constitution oflndia came into force from January 26, 1950. Part V contains the relevant provisions relating to the Union. Whereas Chapters I and IV deal with the Executive and Judiciary; Chapters II and III relate to Parliament. Articles 79 to 8& provide for constitution, composition, duration, etc. of both the Houses and qualification of members, Articles 89 C to 98 make provisions for election of Speaker, Deputy Speaker, Chairman, Deputy Chainnan and their salaries and allowances. Article 101 deals with vacation of seats and Article I 02 specifies circumstances in which a person is held disqualified to be chosen as or continued to be a Member of Parliament. Article I 03 attaches finality to such decisions.

D Three Articles are relevant and may be reproduced;

"JOI. Vacation of seats.-(l) No person shall be a member of both Houses of Parliament and provision shall be made by Parliament by law for the vacation by a person who is chosen a member of both E Houses of his seat in one House or the other.

(2) No person shall be a member both of Parliament and of a House of the Legislature of a State, and if a person is chosen a member both of Parliament and of a House of the Legislature of a State, then, at the expiration of such period as may be specified in rules F made by the President, that person's seat in Parliament shall become vacant, unless he has previously resigned his seat in the Legislature of the State.

(3) If a member of either House of Parliament- G (a) becomes subject to any of the disqualifications mentioned in clause (l) or clause (2) of article 102, or

(b) resigns his seat by writing under his hand addressed to the Chairman or the Speaker, as the case may be, and his resignation H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 585

is accepted by the Chairman or the Speaker, as the case may be, A

-his seat shall thereupon become vacant:

Provided that in the case of any resignation referred to in sub- clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Chairman or the Speaker, B as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation.

(4) If for a period of sixty days a member of either House of Parliament is without permission of the House absent from all C meetings thereof, the House may declare his seat vacant:

Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days. D

102. Disqualifications for membership. - (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament-

(a) if he holds any office of profit under the Government of India E or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;

(b) ifhe is of unsound mind and stands so declared by a competent court; F . (c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; G

(e) if he is so disqualified by or under any law made by Parliament.

Explanation.-For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government oflndia H

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

A or the Government of any State by reason only that he is a Minister either for the Union or for such State.

(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule. B

103. Decision on questions as to disqualifications of members.- (1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause ( 1) of article I 02, the question shall be referred c for the decision of the President and his decision shall be final.

(2) Before giviug any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion."

124Copy pinpoint124. Article 105 provides for powers, privileges and immunities of the members of Parliament. It is the most important provision as to the controversy raised in the present proceedings, and may be quoted in extenso;

"I 05. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof -(I) Subject to the provisions of this Constitution and to.the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

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

G (3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the H coming into force of section 15 of the Constitution (Forty-fourth

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 587

Amendment) Act, 1978. A (4) The provisions of clauses (1 ), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament. " B (emphasis supplied)

125Copy pinpoint125. Articles I 07-22 contain provisions as to legislative procedure. Article 118 enables both the Houses of Parliament to make Rules for regulating procedure and conduct of business. Article 121 puts restriction c on discussion in Parliament in respect of conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. Article 122 prohibits courts from inquiring into or questioning the validity of any proceedings in Parliament on the ground of irregularity of procedure. It reads thus: D "122. Courts not to inquire into proceedings of Parliament.- (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaiining order, in Parliament shall be subject to the jurisdiction of any c:ourt in respect of the exercise by him of those powers. " (emphasis supplied) F

EXPULSION OF MEMBERS BY PARLIAMENT

126Copy pinpoint126. There are certain instances wherein Indian Parliament has exercised the power of expulsion of its members. G

127Copy pinpoint127. The first case which came up for consideration before Parliament was of Mr. H.G. Mudgal, a Member of Lok Sabha. He suppressed certain material facts as to his relationship with the Bombay Bullion Association. A Committee of Enquiry found the charges proved and came to the conclusion that the conduct of the Hon'bl•e Member was 'derogatory of the H

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

A dignity of the House inconsistent with the standard which Parliament is entitled to expect from its members'.

128Copy pinpoint128. While addressing the House, the then Prime Minister Pandit Jawaharlal Nehru referred to the work of Sir Erkskine May, Article 105(3) of the Constitution and practice in the British House. B But Pt. Nehru, in my opinion, rightly added;

"Apart from that, even if the Constitution had made no reference to this, this House as a sovereign Parliament must have inherently c the right to deal with its own problems as it chooses and I cannot imagine anybody doubting that fact". (emphasis supplied)

Regarding approach of House in such cases, he said;

D "Indeed, r do not think it is normally possible for this House in a sense to convert itself into a court and consider in detail the evidence in the case and then come to a decision. Of course : the House is entitled to do so : but it is normally not done : nor is it considered, the proper procedure". E He then stated;

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

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [CK THAKKER, J.] 589

obligation to be clear, precise and definite. The facts are clear and precise and the decision should also be clear and precise and unambiguous. And I submit the decision of the House should be, after accepting the finding of this report, to resolve that the Member should be expelled from the House".

129Copy pinpoint129. A motion was then moved to expel Mr. Mudgal which was accepted by the House and Mr. Mudgal was expelled.

130Copy pinpoint130. Likewise, power of expulsion was exercised by Parliament against Mr. Subramanyam Swami (Rajya Sabha) and Mrs. Indira Gandhi (Lok Sabha). The power was also exercised in case of expulsion from Legislative C Assemblies of various States.

131Copy pinpoint131. Kaul and Shakhder in their book 'Practice and Procedure of Parliament', (Sth Edn., p. 262), stated:

"Punishment of Members: In the case of its own members, two D other punishments are also availabk to the House by which it can express its displeasure more strongly than by admonition or reprimand, namely, suspension from the service of the House and expulsion."

EXPULSION OF MEMBERS AND COURTS E

132Copy pinpoint132. Concrete cases have also come before Indian Judiciary against orders of expulsion passed by the Legislature. Let us consider leading decisions on the point.

133Copy pinpoint133. So far as this Court is concerned,, probably this is the first case F of the type and, therefore, is of extreme importance. Few cases, which had come up for consideration earlier did not directly deal with expulsion of membership from Legislature. As already noted above, though in some cases, Parliament had taken an action of expelling its members, the aggrieved persons had not approached this Court*. G * [Kaul and Shakhder after referring to conflicting decisions of the High Courts of Madhya Pradesh and Punjab & Haryana, stated; "There ate, therefore, two conflicting decisions and the position is uncertain. In the abs:ence of a decision by the Supreme Court, neither decision is a declared law under Article 141 of the Constitution. Law of a certain and binding character can be laid down only by the Supreme Court". 'Practice and Procedure of Parliament', (5th Edn.); P. 268]. H

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

134Copy pinpoint134. The first case which came to be decided by the Constitution ,._" Bench of this Court was MS.M Sharma v. Shri Sri Krishna Sinha & Ors., ;:: [ 1959] Supp I SCR 806 : AIR (1959) SC 395 ('Searchlight' for short). The petitioner, who was Editor of English daily newspaper' Searchlight' published unedited proceedings of the Assembly. The Legislative Assembly issued a notice for violating privilege of the House and proposed to take action. B The petitioner challenged the proceedings inter a/ia contending that they were in violation of fundamental right of free speech and expression guaranteed under Article 19 (l)(a) read with right to life under Article 21 of +->. the Constitution.

135Copy pinpoint135. Considering Article l 94(3)[which is pari-materia to Article 105(3)] of the Constitution, and referring to English Authorities, Das, CJ observed (for the majority);

The result of the foregoing discussion, therefore, is that the D House of Commons had at the commencement of our Constitution the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that take place +, within the House. A fortiori the. House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate ·or garbled version of such debates or proceedings. The latter part E of Art. 194(3) confers all these powers, privileges and immunities on the House of the Legislature of the States, as Art. I 05(3) does on the Houses of Parliament.

136Copy pinpoint136. On the construction of Article 194(3), His Lordship stated: F "Our Constitution clearly provides that until Parliament or the State Legislature, as the case may be, makes a law defining the powers, privileges and immunities of the House of Commons as at the date of the commencement of our Constitution and yet to deny them those powers, privileges and immunities, after G finding that the House of Commons had them at the rel~vant time, will be not to interpret the Constitution but to re~make it. Nor do we share the view that it will not be right to entrust our Houses with these powers, privileges and immunities, for we are. well persuaded that our Houses, like the House of Commons, will H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 591

appreciate the benefit of publicity and will not exercise the powers, A privileges and immunities except in gross cases. "

(emphasis supplied)

137Copy pinpoint137. Harmoniously interpreting and reconciling Articles 194(3) and 19(l)(a), the Court held that in respect of parliamentary proceedings, Article B 19( 1)(a) had no application.

138Copy pinpoint138. It is thus clear that Searchlight had nothing to do with expulsion of a member, though it was relevant so far as construction of Article 194(3) was concerned. c

139Copy pinpoint139. Another leading case of this Court was Powers, Privileges and Immunities of State Legislatures, Article 143 of the Constitution, Re ('Keshav Singh' for short), (1965) l SCR 413 : AIR 1965 SC 745. Though Keshav Singh was not a case of expulsion of a member of Legislature, it is important as in exercise of 'advisory opinion' under Article 143 of the D Constitution, a larger Bench of seven Judges considered various questions, including powers, privileges and immunities of the Legislature.

140Copy pinpoint140. In that case, K, who was not a member of the House, published a pamphlet. He was proceeded against for contempt of the House and breach of privilege for publishing a pamphlet and was sent to jail. K filed a petition for habeas corpus by engaging S as his advocate and a Division Bench of two Judges of the High Court of Allahabad (Lucknow Bench) released him on bail. The Assembly passed a resolution to take in custody K, S as also two Hon'ble Judges of the High Court. Both the Judges instituted a writ petition in the High Court of Allahabad. A Full Court on judicial side admitted the petition and granted stay against execution of warrant of arrest against Judges. In the unusual and extraordinary circumstances, the President of India made reference to this Court under Article 143 of the Constitution. G

141Copy pinpoint141. One of the questions referred to by the President related to Parliamentary privileges vis-a-vis power of Court. It read thus:

"(4) Whether, on the facts and circumstances of the case, it was competent for the Full Bench of the High Court of Uttar H

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

A Pradesh to entertain and deal with the petitions of the said two Hon'ble Judges and Mr. B. Solomon, Advocate, and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly." B

142Copy pinpoint142. Before considering the ambit and scope of Article 194(3) and jurisdiction of the Legislature and the power of judicial review of the High Court under Article 226, the learned Chief Justice gave a golden advice stating: c "In coming to the conclusion that the content of Art. 194(3) must ultimately be determined by courts and not by the legislatures, we are not unmindful of the grandeur and majesty of the task which has been assigned to the Legislatures under the Constitution. Speaking broadly, all the legislative chambers in our country today are playing a significant role in the pursuit of the ideal of a Welfare State which has been placed by the Constitution before our country, and that naturally gives the legislative chambers a high place in the making of history today. The High Courts also have to play an equally significant role in the development of the rule of law and there can be little doubt that the successful working of the rule of law is the basic foundation of the democratic way of life. In this connection it is necessary to remember that the status, dignity and importance of these two respective institutions, the Legislatures and the Judicature, are derived primarily from 'the status dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive which is another important constituent of a democratic State, must function not in antinovel nor in a spirit of hostility, but rationally, harmoniously and in 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 in this country.

But when, as in the present case, a controversy arises between the House and the High Court, we must deal with the problem

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 593

objectively and impersonally. There is no occasion to import heat into the debate or discussion and no justification for the use of strong language. The problem presented to us by the present reference is one of construing the relevant provisions of the Constitution and though its consideration may present some difficult aspects, we must attempt to find the answers as best as we can. In dealing with a dispute like the present which concerns the jurisdiction, the dignity and the independence of two august bodies in a State, we must remember that the objectivity of our approach itself may incidentally be on trial. It is, therefore, in a spirit of detached objective enquiry which is the distinguishing feature of judicial process that we propose to find solutions to the c questions framed for our advisory opinion. If ultimately we come to the conclusion that the view pressed before us by Mr. Setalvad for the High Court is erroneous, we would not hesitate to pronounce our verdict against that view. On the other hand, if we ultimately come to the conclusion that the claim made by Mr. Seervai for the D House cannot, be sustained, we would not falter to pronounce our verdict accordingly. In dealing with problems of this importance and significance, it is essential that we should proceed to discharge our duty without fear or favour, affection or ill-will and with the full consciousness that it is our solemn obligation to uphold the Constitution and the laws. " E (emphasis supplied)

Then analyzing Article 194(3), the Court stated:

"That takes us to clause (3). The first part of this clause F empowers the Legislatures of States to make laws prescribing their powers, privileges and immunities.; the latter part provides that until such laws are made, the Legislatures in question shall enjoy the same powers, privileges and immunities which the House of Commons enjoyed at the commencement of the Constitution. The G Constitution-makers must have thought that the Legislatures would take some time to make laws in respect of their powers, privileges and immunities. During the interval, it was clearly necessary to confer on them the necessary powers, privileges and immunities. There can be little doubt that the powers, privileges and immunities H

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

A which are contemplated by cl. (3), are incidental powers, privileges and immunities which every Legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of clause (3).

This clause requires that the powers, privileges and immunities B which are claimed by the House must be shown to have subsisted at the commencement of the Constitution, i.e., on January 26, 150. It is well-known that out of a large number o privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of c time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was _not only claimed by the House of Commons, but was recognised by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English courts, it would still be upheld under the latter part of clause (3) only on the ground that it was in fact claimed by the House of Commons. In other words, the inquiry which is prescribed by this clause is : is the power in question shown or proved to have subsisted in the House of Commons at the relevant time ?

It would be recalled that Art. 194(3) consists of two parts. The first part empowers the Legislature to define by law from time to time its powers, privileges and immunities, whereas the second part provides that until the legislature chooses so to define its powers, privileges and immunities, its powers, privileges and immunities would be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees, at the commencement of the Constitution. Mr. Seervai's argument is that the latter part of Art. 194(3) expressly provides that all the powers which vested in the House of Commons at the relevant'time, vest in the House. This broad claim, however, cannot be accepted in its entirety, because there are some powers which cannot obviously be claimed by the House. Take the privilege of freedom of access which is exercised by the House of Commons as a body and H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 595

through its Speaker "to have at all times the right to petition, counsel, or remonstrate with their Sovereign through their chosen representative and have a favorabl.e construction placed on his words was justly regarded by the Commons as fundamental privilege". It is hardly necessary to point out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder and the privilege of impeachment cannot be claimed by the House. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of a parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in cases of doubt. This privilege I again, admittedly, cannot be claimed by the House. Therefore, it would not be correct to say that an powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House." D

143Copy pinpoint143. Referring to conflict between two august organs of the State and complimenting the solution adopted by them in England, the learned Chief Justice said:

"It has been common ground between the Houses and the courts that privilege depends on the "known laws and customs of Parliament'', and not on the ipse dixit of either House. The question in dispute was whether the law of Parliament was a "particular" law or part of the common law in its wide and extended sense, and in the former case whether it was a superior law which overrode the common law. Arising out of this question another item of controversy arose between the courts and the Parliament and that was whether a matter of privilege should be judged solely by the House which it concerned, even when the rights of third parties were involved, or whether it might in certain cases be decided in the courts, and, if so, in what sort of cases. The points of view adopted by the Parliament and the courts appeared to be irreconcilable. The courts claimed the right to decide for themselves when it became necessary to do so in proceedings brought

- before them, questions in relation to the existence or extent of these privileges, whereas both the Houses claimed to be exclusive H

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

A judges of their own privileges. Ultimately, the two points of view were reconciled in practice and a solution acceptable to both he parties was gradually evolved. This solution which is marked out by the courts is to insist on their right in principle to decide all questions of privilege arising in litigation before them, with certain large exceptions in favour of parliamentary jurisdiction. B Two of these are the exclusive jurisdiction of each House over its own internal proceedings, and the right of either House to commit and punish for contempt. May adds that while it cannot be claimed that either House has formally acquiesced in this assumption of jurisdiction by the courts, the absence of any conflict for over c a century may indicate a certain measure of tacit acceptance. In other words, 'the question about the existence and extent of privilege is generally treated as justiciable in courts where it becomes relevant for adjudication of any dispute brought before the courts. D In regard to punishment for contempt, a similar process of give and take by convention has been in operation and gradually a large area of agreement has, iD. practice, been evolved. Theoretically, the House of Commons claims that its admitted right to adjudicate on breaches of privilege implies in theory the right to determine the existence and extent of the privileges themselves. It has never expressly abandoned this claim. On the other hand, the courts regard the privileges of Parliament as part of the law of the land, of which they are bound to take judicial notice. They consider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction, and to decide it according to their own interpretation of the law. Naturally, as a result of this dualism the decisions of the courts are not accepted as binding by the House in matters of privilege, nor the decision of the House by the courts; and as May points out, on the theoretical plane, the old dualism remains unresolved. In G practice, however, "there is much more agreement on the nature and principles of privilege· than the deadlock on the question of jurisdiction would lead one to expect" and May describes these general conclusions in the following words :

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

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA (C.K. THAKKER. J.] 597

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

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

On the other hand, the courts admit-

(3) That the control of each House over its internal proceedings is absolute and cannot be interfered with by the D L'!f -.., ,.. courts.

(4) That a committal for contempt by either House is in practice within its exclusive jurisdiction, since the facts constituting the alleged contempt need not be stated on the warrant of committal."

144Copy pinpoint144. Paying tribute to English genius, the learned Chief Justice proceeded to observe:

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

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

A powers and privileges claimed by the House of Commons. "

145Copy pinpoint145. Construing Article 212 in its proper perspective and drawing distinction between 'irregularity' and 'illegality', the Court stated:

"Art. 212(1) makes a provision which is relevant. It lays down B that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. Art. 212(2) confers immunity on the. +- .... officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure c or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Art. 212(1) 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 if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned L procedure is illegal and unconstitutional, it would be open to be scrutinised 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. That again is another indication which may afford some assistance in construing the scope and extent of the powers conferred on the House' by Art. 194(3)."

146Copy pinpoint146. Advisory opinion of this Court in Keshav Singh thus is of extreme importance. Though it did not deal with the question of expulsion directly or even indirectly, it interpreted the relevant and material provisions of the Constitution relating to the powers, privileges and immunities of Parliament/ State Legislature keeping in view the powers, privileges and immunities enjoyed by the British Parliament.

147Copy pinpoint147. Let us now consider few High Court decisions on the point which are directly on the point.

148Copy pinpoint148. In Raj Narain v. Atmaram Govind & Anr., AIR (1954) All 319, the petitioner who was an elected representative of the Legislative Assembly of Uttar Pradesh wanted to move a motion in connection with forcible removal by police of three teachers who were on hunger-strike. Permission was not

-· RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 599

granted by the Speaker. The petitioner, however, continued to 'disturb' A proceedings of the House and by use of 'minimum force', he was removed ' from the House. The Committee of Privileges considered the conduct of the petitioner and resolved to suspend him. The petitioner challenged the resolution in the High Court of Allahabad under Article 226 of the Constitution.

149Copy pinpoint149. Both the Judges forming the Division Bench ordered dismissal of B the petition by recording separate reasons. Sapru, J. conceded that withdrawal of a member from the House even for a brief period was a serious matter both for the member as well as for his constituency but disciplinary or punitive action for disorderly behaviour of a member could be taken. t' Mukherji, J. took the same view. His Lordship further held that 'the House c is the sole Judge of its own privileges'.