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

150Copy pinpoint150. In Yeshwant Rao Meghawale v. Madhya Pradesh Legislative Assembly & Ors., AIR (1967) MP 95, the petitioner obstructed the proceedings in the House, jumped on the dias and assaulted the Deputy Speaker. A motion of expulsion of the petitioner was moved and was passed. The D petitioner chaHenged the action by approaching the High Court under Article 226 of the Constitution.

151Copy pinpoint151. It was contended on behalf of the petitioner that the House of Commons has the right to provide for its own constitution and power to fill vacancies. And it was because of that power that it could expel a member. Since the Legislative Assembly ofM.P. had no such right, it could not expel a member.

152Copy pinpoint152. The Court, however, negatived the contention. It observed that though Indian Legislature has no right to provide for its own composition nor for filling of vacancies in the House, nor to try election disputes,

- nevertheless it has power to expel a member for proper functioning, protection and self-preservation. The Court noted that as held by the Privy Council, ! even Colonial Legislatures have such power. G

153Copy pinpoint153. In my opinion, by holding so, the Division Bench has not committed any error of law nor the observations are inconsistent with settled legal position.

154Copy pinpoint154. I must make mention of a Full Bench decision of the High Court H

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A of Punjab & Haryana in Hardwari Lal v. Election Commission of India, ILR (1977) 2 P & H 269 (FB). The High Court was expressly and specifically called upon to decide whether a State Legislature has power to expel its member. A Bench of five Judges exhaustively considered the question in detail. Whereas the majority negatived such right, the minority ruled otherwise and upheld it. The petitioners heavily relied upon the reasons B recorded and conclusions reached by Sandhawalia, J. (majority view). The respondents, on the other hand, strongly adverted to observations and considerations of Narula, CJ (minority view). It would, therefore, be appropriate if I deal with both the view-points.

c 155. The learned Chief Justice firstly considered the scope and applicability of clause (3) of Article 194 [similar to clause (3) of Article 105] of the Constitution and held that to determine whether a particular privilege falls in the exceptional category or not is that as soon as a particular privilege is claimed by the Legislature and is disputed or contested, it must be inquired whether such a privilege was available to the House of Commons D on January 26, 1950, and then to decide whether the said privilege is or is not compatible or consistent with the provisions of the Constitution. If it is not inconsistent with the provisions of the Constitution, it can be claimed by the Legislature under Article 194(3).

156Copy pinpoint156. It was, thP.refore, held that "whenever it is found that the Commons did enjoy a particular privilege, power or immunity at the r relevant time, it must be deemed to have been written with pen and ink in clause (3) of Article 194, and it is only when a dispute arises whether in the nature of things the particular privilege or power can actually be expressed, F claimed or enjoyed that the Court will scrutinize the matter and without deleting the same from the list hold that notwithstanding the power or privilege being there it cannot be exercised, either because it is humanly

G impossible to do so or because the extension of the privilege of the Commons would contravene some express or special provision of the Constitution". -

157Copy pinpoint157. Regarding the main question as to the right of the Legislature to expel a member, it was admitted that Indian Legislature had no privilege to provide for its own composition, but it is no ground to deny the right to _,_ the House to expel a member as a means of punishment for misconduct; H Referring to a series of cases, it was held that "independent of the power

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 001

and privilege of the House of Commons to constitute itself it did have and exercised at the time of coming into force of our Constitution the power to expel its members by way of punishment for misconduct or for breach of privilege or for committing contempt of the House."

158Copy pinpoint158. The majority, on the other hand, took a contrary view. Sandhawalia, J., considering historical development of law as to parliamentary privileges, observed:

"In the context of an unwritten Constitution in England, the House of Commons has undoubtedly claimed and enjoyed the privilege of providing for and regulating its own Constitution from c the very earliest times. This privilege in terms and in effect implies and includes all powers to control the composition of the House and to determine the identity of its membership."

159Copy pinpoint159. Unfortunately, however, having held so, the majority adopted an incorrect approach thereafter. Though this Court in Keshav Singh held that D the privilege enjoyed by the House of Commons in England in regard to its constitution had been expressed in three ways; namely:

"(i) by the order of new writs to fill vacancies that arise in the Commons in the course of a Parliament; E

(ii) by the trial of controversial elections; and

(iii) by determining the questions of its members in cases of doubt; " F -the High Court (majority) added one more category (expulsion of a member) stating that the power of expulsion was another example (fourth category) of the power to the House to determine its own composition.

160Copy pinpoint160. Describing ancient English precedents as 'not only wasteful but G dangerous', the majority concluded;

"The uncanalised power of expulsion in the House of Commons stems from its ancient and peculiar privileges of determining its own composition which in tum arises for long H

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A historical reasons and because of the unwritten Constitution in England." (emphasis supplied)

161Copy pinpoint161. With respect, the majority was not right in coming to the aforesaid conclusion and I am unable to read legal position as envisaged by Sandhawalia, J. B

162Copy pinpoint162. In K. Anbazhagan & Ors. v. Secretary, Tamil Nadu Legislative Assembly, Madras & Ors., AIR (1988) Mad 275, some of the members of Tamil Nadu Legislative Assembly were expelled for burning the Constitution considering the conduct as unworthy of members of Legislative Assembly. C The action was challenged in the High Court.

163Copy pinpoint163. A contention similar to one raised in Yeshwant Rao was raised that since the Tamil Nadu Legislative Assembly had no right to provide for its constitution or composition, it had no right to expel a member since a right to expel a member flows from a right to provide for composition of the D House.

164Copy pinpoint164. The Court observed that in Keshav Singh, it was held by the -.+ r Supreme Court that Indian Legislatures have no privilege to provide for its own constitution. But it rightly proceeded to consider the controversy by observing that the question was whether the power of expulsion exercised E by the House of Commons was to be 'wholly and exchsively treated as a part of the privilege in regard to its constitution'. Then considering English authorities and various other decisions on the point; the Court held that such power was possessed by the Legislature and was available in appropriate cases. F

165Copy pinpoint165. In my judgment, the right to expel a member is distinct, separate and independent of right to provide for the due constitution or composition of the House and even in absence of such power or prerogative, right of expulsion is possessed by a Legislature (even a Colonial Legislature), which in appropriate cases can be exercised. G

166Copy pinpoint166. I am also supported in taking this view from the discussion the Constituent Assembly had and the final decision taken.

167Copy pinpoint167. When the provisions relating to powers, privileges and immunities H of Parliament and State Legislatures were considered by the Constituent

-x RAJA RAM PAL v_ THE HON'BLE SPEAKER, LOK SABHA [C_K_ THAKKER, J ] 003

_..,, 1 Assembly, conflicting views were expressed by the Hon'ble Members. One A view was in favour of making such provisions exhaustive by incorporating them in the Constitution. The other view, however, was to include few specific and express rights in the Constitution and to adopt the rest as were available to House of Commons in England.

168Copy pinpoint168. The relevant discussion throws light on different views expressed by the Members of Assembly. On May 19, 1949, when the matter came up for consideration, Shri Alladi Krishnaswami Ayyar stated:

"Shri Alladi Krishnaswami A.war (Madras : General) : Sir, in regard to the article as it stands, two .objections have been raised, one based upon sentiment and the other upon the advisability of making a reference to the privileges of a House in another State with which the average citizen or the members of Parliament here may not be acquainted with. In the first place, so far as the question of sentiment is concerned, I might share it to some extent, but it is also necessary to appreciate it from the practical point of view. It is common knowledge that the widest privileges are exercised by members of Parliament in England. If the privileges are confined to the existing privileges of legislature in India as at present constituted, the result will be that a person cannot be punished for contempt of the House. The actual question arose in E Calcutta as to whether a person can be punished for contempt of the provincial legislature or other legislatures in this country. It has been held that there is no power to punish for contempt any person who is guilty of contempt of the provincial or even the Central Legislature, whereas the Parliament in England has the inherent right to punish for contempt. The question arose in the Dominions and the Colonies and it has been held that by reason of the wide wording in the Australian Commonwealth Act as well as in the Canadian Act the Parliament in the both places have powers similar to the powers possessed by the Parliament in England and therefore have the right to punish for contempt. Are you going to deny to yourself that power? That is the question.

I will deal with the second objection. If you have the time and if you have the leisure to formulate all the privileges in a compendious form, it will be well and good. I believe a Committee H

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

A constituted by the Speaker on the legislative side found very difficult to fonnulate all the privileges, unless they went in detail into the whole working of parliamentary institution in England and the time was not sufficient before the legislature for that purpose and accordingly the Committee was not able to· give any effective advice to the Speaker in regard to this matter. I speak subject to B correction becau:;e I was present at one stage and was not present at a later stage. Under these circumstances I submit there is absolutely to question of infra dig. We are having the English language. We are having our Constitution in the English language side by side with Hindi for the time being. Why object only to c refei:ence to the privileges in England?

The other point is that there is nothing to prevent the Parliament from setting up the proper machinery for formulating privileges. The article leaves wide scope for it. "In other respects, the privileges and immunities of members of the Houses shall be such as may from time to time be defined by Parliament by law and, until so defined, shall be such as are enjoyed by the members of the House of Commons of the Parliament of the United Kingdom at the commencement of this Constitution". That is all what the article says. It does not in any way fetter your discretion. You may enlarge the privileges, you may curtail the privileges, you may have a different kind of privileges. You may start on your own journey without reference to the Parliament of Great Britain. There is nothing to fetter the discretion of the future Parliament of India. Only as a temporary measure, the privileges of the House of F Commons are made applicable to this House. Far from it being infra dig, it subordinates the reference to privileges obtained by the members of Parliament in England to the privileges which may be conferred by this Parliament by its ·Own enactments. Therefore there is no infra dig in the wording of class (3).

G This practice has been followed in Australia, in Canada and in other Dominations with advantage and it has secured complete freedom of speech and also the omnipotence of the House in every respect. Therefore we need not fight shy ~f hnrrowing to this extent, when we are borrowing the English language and when we are using constitutional expressions which are common to England.

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J] 605

.. You are saying that it will be the same as those enjoyed by the members of the House of Commons. It is far from that. Today the Parliament of the United Kingdom is exercising sway over Great Britain, over the Dominions and others. To say that you are as good as Great Britain is not a badge of inferiority but an assertion of your own self-respect and also of the omnipotence of your Parliament. Therefore, I submit, Sir, there is absolutely no force in the objection made as to the reference to the British Parliament. Under these circumstances, far from this article being framed in a spirit of servility or slavery or subjection to Britain, it is framed in a spirit of self-assertion and an assertion that our country and our Parliament are as great as the Parliament of Great Britain." C

169Copy pinpoint169. It is thus clear that when draft Article 85 (Present Article 105) was considered, different view-points were before the House. It was also aware of various Constitutions, particularly, Constitutions of Canada and Austr~lia. The Members expressed their views, made suggestions and sought amendments and finally, the draft Article 85 was approved as amended.

170Copy pinpoint170. Likewise, when draft Article 169 (Present Article 194) came up before the House on June 3, 1949, again, the matter was discussed at length.

171Copy pinpoint171. I would like to refer to in particular the considerations weighed with the House in the speech ofHon'ble the President, Dr. B.R. Ambedkar, who said:

"The privileges of Parliament extend, for instance, to the rights of Parliament as against the public. Secondly, they also extend to rights as against the individual members. For instance, under the House of Commons' power and privileges it is open to Parliament to convict any citizen for contempt of Parliament and when such privilege is exercised the jurisdiction of the court is ousted. That is an important privilege. Then again, it is open to Parliament to take action against any individual member of Parliament for anything that has been done by him which brings Parliament into disgrace. These are very grave matters-e.g., to commit to prison. the right to lack up a citizen for what parliament regards as contempt of itself is not an easy matter to define. Nor is it easy to say what are the acts and deeds of individual members which bring H

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A Parliament into disrepute. "

(emphasis supplied)

He further stated:

B "Let me proceed. It is not easy, as I said, to define what are the acts and deeds which may be deemed to bring Parliament into disgrace. That would require a considerable amount of discussion and examination. That is one reason why we did not think of enumerating, these privileges and immunities. c But there is not the slightest doubt in my mind and I am sure also in the mind of the Drafting Committee that Parliament must have certain privileges, when that Parliament would be so much exposed to calumny, to unjustified criticism that the parliamentary institution in this country might be brought down to utter contempt and may . lose all the respect which parliamentary institutions should have from the citizens for whose benefit they operate.

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

It seems to me, if the proposition was accepted that the Act itself should enumerate the privileges of Parliament, we would have to follow three courses. One is to adopt them in the Constitution, namely to set out in detail the privileges and immunities of Parliament F and its members. I have very carefully gone over May's Parliamentary Practice which is the source book of knowledge with regard to the immunities and privileges of Parliament. I have gone over the index of May's Parliamentary Practice and I have noticed that practically 8 or 9 columns of the index are devoted to the privileges and immunities of Parliament. So that if you were to enact a complete code of the privileges and immunities of Parliament based upon what May has to say on this subject, I have not the least doubt in my mind that we will have to add not less than twenty or twenty-five pages relating to immunities and privileges of Parliament. I do not know whether the Members of this House

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] ffi7

would like to have such a large categorical statement of privileges and immunities of Parliament extending over twenty or twenty-five pages. That I think is one reason why we did not adopt that course.

The other course is to say, as has been said in many places in the Constitution, that Parliament ·may make provision with regard to a particular matter and until Parliament makes that provision the B .' existing position would stand. That is the second course which we could have adopted. We could have said that Parliament may define the privileges and immunities of the members and of the body itself, and until that happens the privileges existing on the date on which the Constitution comes into existence shall continue c to operate. But unfortunately for us, as honourable Members will know, the 1935 Act conferred no privileges and no immunities on Parliament and its members. All that it provided for was a single provision that there shall be freedom Of speech and no member shall be prosecuted for anything said in the debate inside Parliament. D Consequently that course was not open, because the existing •' !- Parliament or Legislative Assembly possess no privilege and no immunity. Therefore we could not resort to that course.

The third course open to us was the one which we have followed, namely, that the privileges of Parliament shall be the privileges of the House of Commons. It seems to me that except of the sentimental objection to the reference to the House of Commons I cannot see that there is any substance in the argument that has been advanced against the course adopted by the Drafting Committee. I therefore suggest that the article has adopted the only possible way of doing it and there is no other alternative way open to us. That being so, I suggest that this article be adopted in the way in which we have drafted it. " )

172Copy pinpoint172. Thereafter the House decided to approve the provision relating to powers, privileges and immunities of State Legislatures. G

173Copy pinpoint173. The aforesaid discussion clearly and unequivocally indicates that the Members of the Constitution wanted Parliament (and State Legislatures) to retain power and privileges to take appropriate . action against any individual member for 'anything that has been done by him' which may H

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A bring Parliament or Legislative Assembly into 'disgrace'. In my opinion, therefore, it cannot be said that the Founding Fathers of the Constitution were not aware or never intended to deal with individual misdeeds of members and no action can be taken by the Legislature under Article I 05 -. or 194 of the Constitution.

174Copy pinpoint174. An authority on the 'Constitutional Law of India', (H.M. Seervai) pithily puts this principle in one sentence:

"It is clear, therefore, that the privileges of the British House of Commons were not conferred on the Indian Legislatures in a fit c of absent mindedness".

(emphasis supplied)

(Constitutional Law of India; Third Edn.; Vol. II; para 20-36)

D ORDER OF EXPULSION AND JUDICIAL REVIEW

175Copy pinpoint175. The history of relationship between Parliament and Courts at Westminister is also marked with conflict and controversy.

176Copy pinpoint176. Sir Erskine May rightly comments; "After some three and a half centuries, the boundary between the competence of the law courts and the jurisdiction of the either House in matters of privilege is still not entirely determined".

177Copy pinpoint177. According to the learned author, the earliest conflicts between Parliament and the Courts were about the relationship between the lex parliamenti and the common law of England. Both Houses argued that under the former, they alone were the judges of the extent and application of their own privileges, not examinable by any court or subject to any appeal. The courts, on the other hand, professed judicial ignorance of the lex parliamenti. After some time, however, they recognized it, but as a part of the Law of England and, therefore, wholly within the judicial notice.

178Copy pinpoint178. In the middle of the nineteenth century, the conflict, to the large extent, had been resolved. Out of both the claims, (i) whether a privilege existed; and (ii) whether it had been breached, Parliament yielded the first

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

to the courts. In turn, courts recognized right of the House to the second. A

179Copy pinpoint179. The question was also considered by Anson ('The Law and Custom of the Constitution', Fifth Edition; Vol. I; pp. 190-99). The learned author considered the causes of conflict between Houses and Courts. He noted that the House had asserted that 'it is the sole judge of the extent of its privileges' and the Court had no jurisdiction in the matter. Courts, on B the other hand, took the stand that 'when privilege conflicts with rights which they have it in charge of maintain, they will consider whether the alleged privilege is authentic, and whether it governs the case before them'.

180Copy pinpoint180. Then referring to three leading cases, (i) Ashby v. White, (1704) c 14 St Tr 695; (ii) Stockdale v. Hansard, (1839) 9 Ad & E 1 : 112 ER 1112; and (iii) Bradlaugh v. Gossett, (1884) 12 QBD 271: 53 LJQB 200-the author concluded:

"On the whole, it seems now to be clearly settled that the Courts will not be deterred from upholding private rights by the fact D that questions of parliamentary privilege are involved in their maintenance; and that, except as regards the internal regulation of its proceedings by the House, Courts of Law will not hesitate to inquire into alleged privilege, as they would into custom, and determine its extent and application." E

181Copy pinpoint181. In Halsbury 's Laws ofEngland, (4th Edition, Reissue, Vol. 34; pp. 553-54; paras 1004-05), it has been stated:

"1004. The position ofthe courts oflaw. Each House of Parliament F has traditionally claimed to be the sole and exclusive judge of its own privilege and of the extent of that privilege. The courts of law accept the existence of privileges essential to the discharge of the functions of the two Houses. In 1939, all the privileges required for the energetic discharge of the Commons' trust were conceded by the court without a murmur or doubt; and over 150 years later, G the Privy Council confirmed that the courts will not allow any challenge to be made to what is said or done within the walls of Parliament in perfonnance of its legislative functions and protection of its established privileges. On the other hand, the courts take the view that it is for them to determine whether a parliamentary claim H

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A to privilege in a particular case falls within that area where what is claimed is necessary to the discharge of parliamentary functions or internal to one or other of the Houses, in which case parliamentary jurisdiction is exclusive, or whether it falls outside that area, especially if the rights of third parties are involved, where the courts would expect to form their own judgments. B I 005. Limits of agreement regarding jurisdiction. In spite of the dualism of jurisdiction between the Houses of Parliament and the courts of law, the current measure of agreement on the respective spheres of the two Houses and the courts has, since the mid- c nineteenth century, prevented the direct conflicts of earlier years.

Although the Houses have never directly admitted the claim of the courts of law to adjudicate on matters of privilege, they appear to recognize that neither House is by itself entitled to claim the supremacy wl;iich was enjoyed by the undivided High Court of D Parliament.

For their part the courts of law acknowledge that the control of each House over its own proceedings is absolute and not subject to judicial jurisdiction; and the courts will not interfere with the interpretation of a statute by either House so far as the proceedings of the House are concerned. Neither will the courts inquire into the reasons for which a person has been adjudged guilty of contempt and committed by either House, when the order or warrant upon which he has been arrested does not state the causes of his arrest; for in such cases it· is presumed that the order or warrant has been duly issued unless the contrary appears upon the face of it."

181A. Holdsworth, in 'A History of English Law' (Vol. I; pp. 393-94) rightly observed: G "There are two maxims or principles which govern this subject. The first tells us that "Privilege of Parliament is part of the law of the land;" the second that "Each House is the judge of its own privileges." Now at first sight it may seem that these maxims are H contradictory. If privilege of Parliament is part of the law of the.

~ ~ RAJA RAM PAL 1·. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 611

/ ; "'f land its meaning and extent must be interpreted by the courts, just A ~- like any other part of the law; and therefore neither House can add to its privileges by its own resolution, any more than it can add to any other part of the law by such a resolution. On the other hand, if it is true that each House is the sole judge of its own privileges, it might seem that each House was the sole judge as to whether or no it had got a privilege, and so could add to its privileges by B ... its own re.solution. This apparent contradiction is solved if the proper application of these two maxims is attended to. The first maxim applies to cases like Ashby v. White; [1704[ 14 St Tr 695 and Stockdale v. Hansard; [1839] 9 Ad & E 1 : 112 ER 1112 in which • the question at issue was the existence of a privilege claimed by c the House. This is a matter of law which the courts must decide, without paying any attention to a resolution of the House on the subject. The second maxim applies to cases like that of the Sheriff

182Copy pinpoint182. We have a written Constitution wl:ich confers power of judicial review on this Court and on all High Courts. In exercising power and discharging duty assigned by the Constitution, this Court has to play the role of a 'sentinel on the qui vive' and it is the solemn duty of this Court to protect the fundamental rights guaranteed by Part III of the Constitution zealously and vigilantly. p

183Copy pinpoint183. It may be stated that initially it was contended by the respondents that this Court has no power to consider a complaint against any action taken by Parliament and no such complaint can ever be entertained by the Court. Mr. Gopal Subramaniam, appearing for the Attorney General, however, at a later stage conceded (and I may say, rightly) the jurisdiction of this G Court to consider such complaint, but submitted that the Court must always keep in mind the fact that the power has been exercised by a co-ordinate organ of the State which has the jurisdiction to regulate its own proceedings within the four walls of the House. Unless, therefore, this Court is convinced that the action of the House is unconstitutional or wholly unlawful, it may H

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

A not exercise its extraordinary jurisdiction by re-appreciating the evidence and material before Parliament and substitute its own conclusions for the conclusions arrived at by the House. -

184Copy pinpoint184. In my opinion, the submission is well-founded. This Court cannot be oblivious or unmindful of the fact that the Legislature is one of three organs of the State and is exercising powers under the same Constitution under which this Court is exercising the power of judicial review. It is, therefore, the duty of this Court to ensure that there is no abuse or misuse of power by the Legislature without overlooking another equally important ;;onsideration that the Court is not a superior organ or an appellate forum over the other constitutional functionary. This Court, therefore, should ,·•.... exercise its power of judicial review with utmost care, caution and circumspection.

185Copy pinpoint185. The principle has been succinctly stated by Sir John Donaldson, M.R. in R. v: Her Majesty's Treasury, ex parte Smedley, 1985 QB 657, 666 D thus: + ,,. "It ....... behoves the courts to be ever sensitive to the paramount need to refrain from trespassing on the province of Parliament or, so far as this can be avoided, even appearing to do so. " E (emphasis supplied)

IND/AN PARLIAMENT HAS NO DUAL CAPACITY

186Copy pinpoint186. It was also urged that Indian Parliament is one of the three components of the State and it does not have a 'dual capacity' like the F British Parliament which is not only 'Parliament', i.e. legislative body, pure and simple, but also 'the High Court of Parliament'. Since Indian Parliament is not a 'Court of Record', it has no power, authority or jurisdiction to award or inflict punishment for Contempt of Court nor it can be contended that such action is beyond judicial scrutiny. ..... G

187Copy pinpoint187. In this connection, I may only observe that in Searchlight as well as in Keshav Singh, it has been observed that there is no doubt that Parliament/State Legislature has power to punish for contempt, which has been reiterated in other cases also, for instance, in State of Karnataka v. H Union nf India, [1977] 4 SCC 608, and in P. V. Narasimha Rao v. State,

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA (C.K THAKKER, .I.] 613

[I 998] 4 sec 626. But what has been held is that such decision of Parliament/ A

-· ' State Legislature is not 'final and conclusive'. This Court in all earlier cases held that in view of power of judicial review under Articles 32 and 226 of the Constitution, the Supreme Court and High Courts have jurisdiction to decide legality or otherwise of the action taken by State-authorities and that power cannot be taken away from judiciary. There lies the distinction between British Parliament and Indian Parliament. Since British Parliament B is also 'the High Court of Parliament', the action taken or decision rendered by it is not open to challenge in any court of law. This, in my opinion, is based on the doctrine that there cannot be two parallel courts, i.e. Crown's Court and also a Court of Parliament ('the High Court of Parliament') exercising judicial power in respect of one and the same jurisdiction. India c is a democratic and republican State having a written Constitution which is supreme and no organ of the State (Legislature, Executive or Judiciary) can claim sovereignty or supremacy over the other. Under the said Constitution, power of judicial review has been conferred on higher judiciary (Supreme Court and High Courts). The said power is held to be one of the 'basic features' of the Constitution and, as such, it cannot be taken away by Parliament, even by an amendment in the Constitution. [ Vide Sambamurthy v. State ofA.P, [1987] 1 SCC 362: AIR (l 987) SC 663; Kesavananda Bharti v. State of Kera/a, [1973] 4 SCC 225 : AIR (1973) SC 1461; Indira Nehru Gandhi v. Raj Narain, [1975) Supp SCC I : AIR (1975) SC 2299; Minerva Mills Ltd. v. Union of India, [1980] 3 SCC 625 : AIR (1980) SC 1789; L. E Chandra Kumarv. Union a/India, [1987] 1SCC124: [1987] I SCC 124: [1987] I SCR 435, Kihoto Hollohon v. Zachilhu, (1992] Supp 2 SCC 651 : AIR (1993) SC 412].

188Copy pinpoint188. It has, therefore, been held in several cases that an action of Parliament/State Legislature cannot claim 'total immunity' from judicial review. In fact, this argument had been put forward in Keshav Singh which was F

negatived by this Court. It was opined that an aggrieved party may invoke the jurisdiction of the High Court under Article 226 or of the Supreme Court under Article 32 of the Constitution. That, however, does not mean that while exercising extraordinary jurisdiction urider the Constitution, the powers G of the courts are absolute, unlimited or unfettered. The Constitution which conferred power of judicial review on the Supreme Court and High Courts, with the same pen and ink provided that the validity of proceedings in Parliament cannot be called in question on the ground of 'irregularity in procedure'. It is, therefore, the duty of this Court to give effect -to the said H

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

A provision and keeping in view the limitation, exercise the power of judicial review. .. .

189Copy pinpoint189. Moreover, in the instant cases, the Court is called upon to answer a limited question whether Parliament can expel a member. As I have already discussed in earlier part of this judgment, even a Colonial Legislature having limited privileges possesses the power to expel a member if his conduct is found to be not befitting a member of Legislature. If it is so, in my opinion, it goes without saying that Indian Parliament, which has undoubtedly much more powers than a Colonial Legislature, can take such action and it cannot be successfully contended that Parliament does not possess the power to expel a member. I am, therefore, unable to uphold the argument of the petitioners.

D!SQUALIFICA TION AND EXPULSION

190Copy pinpoint190. The petitioners also submitted that the law relating to disqualification and vacation of seats has been laid down in Articles 101 to 104 (and 190-93) read with Schedule X to the Constitution and of the Representation of the People Act, 1951. Those provisions are 'full and complete'. In other words, they are in the nature of 'complete Code' as to disqualification of membership and vacation of seats covering the field in its entirety. No power of expulsion de hors the above provisions exists or is available to any court or authority including Parliament. The action of Parliament, hence, is without jurisdiction and is liable to be set aside.

191Copy pinpoint191. I am unable to uphold the contention. As already discussed earlier, every legislative body-Colonial or Supreme-possesses power to regulate its proceedings, power of self-protection, self-preservation and maintenance of discipline. It is totally different and distinct from the power to provide the constitution or composition which undoubtedly not possessed by Indian Parliament. But every legislative body has power to regulate its proceedings and observance of discipline by its members. In exercise of that power, it can suspend a member as also expel him, if the circumstances warrant or call for such action. It has nothing to do with disqualification and/ or vacation of seat. In fact, a question of expulsion arises when a member is not disqualified, his seat has not become vacant and but for such expulsion, he is entitled to act as a member of Parliament. H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 615

PARLIAMENT HAS NO CARTE BLANCHE POWER A - 192. The counsel for the petitioners submitted that every power has its limitations and power conferred on Parliament is not an exception to this rule. It has, therefore, no absolute right to take any action or make any order it likes. It was stated .that this Court has accepted this principle in several cases by observing that absolute power is possible 'only in the moon' [vide B Ahmedabad St. Xavier's College Society & Anr. v. State of Gujarat & Anr., [1975] 1SCR173: [1974] I SCC 717: AIR(l974) SC 1389]. I admit my inability to express any opinion on the larger issue. But I have no doubt and I hold that Parliament, like the other organs of the State, is subject to the provisions of the Constitution and is expected, nay, bound to exercise its powers in consonance with the provisions of the Constitution. But I am unable to hold that the power to expel a member is a carte blanche in nature and Parliament has no authority to expel any member. In my view, Parliament can take appropriate action against erring members by imposing appropriate punishments or penalties and expulsion is one of them. I may, however, hasten to add that under our Constitution, every action of every authority is subject to law as nobody is above law. Parliament is not an exception to this 'universal' rule. It is, therefore, open to an aggrieved party to approach this Court raising grievance against the action of Parliament and if the Court is satisfied within the limited parameters of judicial review that the action is unwarranted, unlawful or unconstitutional, it can set aside the action. But E it is not because Parliament has no power to expel a member but the action was not found to be in consonance with law.

PROCEDURAL IRREGULARITY: EFFECT

- 193. It was then contended that the impugned actions taken by Lok Sabha and Rajya Sabha are illegal and unconstitutional. It was stated that F

the immunity granted by clause (l) of Article 122 of the Constitution ('Courts not to inquire into proceedings of Parliament') has been made expressly limited to 'irregularity of procedure' and not to substantive illegality or unconstitutionality. If the action taken or order passed is ex G facie illegal, unlawful or unconstitutional, Parliament cannot take shelter under Article 122 and prevent judicial scrutiny thereof. Neither ad hoc Committees have been contemplated by the Constitution nor such committees nave power to inquire into conduct or misconduct of Members of Parliament. All proceedings, therefore, have no legal foundation. They were without I H

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

A jurisdiction or lawful basis and are liable to be ignored altogether.

194. In this connection, the attention of the Court was invited to Constituent Assembly Debates when draft Article IOI (present Article 122) was discussed. Mr. Karnath suggested an amendment in clause (I) of Article I 01 by inserting the words "in any court" after the words "called in B question". J

195. Dealing with the amendment and jurisdiction of Courts, Dr. B.R. Ambedkar stated (CAD: Vol.VIII; pp. 199-201):

c "With regard to the amendment of Mr. Karnath, I do not think it necessary, because where can the proceedings of Parliament be questioned in a legal manner except in a Court? Therefore, the only place where the proceedings of Parliament can be questioned in a legal manner and legal sanction obtained is the Court."

D (emphasis supplied)

196. Reference was also made to Pandit MS.M Sharma v. Shree Krishna Sinha & Ors. (Pandit Sharma JI); (I 961) l SCR 96 : AIR 1960 SC I 186, wherein a Bench of eight Hon'ble Judges of this Court held that "the E validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed".

197. In Keshav Singh also, this Court reiterated the above proposition p of law and stated;

"Art. 212(1) makes a provision which is relevant. It lays down that the validity of any proceedings in the Legislature o_f 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 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

RAJA RAM PAL r. THE HON'BLE SPEAh.ER. LOK SABHA [CK THAKKFR. J.] 617

... i of law the va'lidity 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 imp11gned proced11re is illegal and 11nconstit11tional, it 1ro11ld be open to he scrutinised in a c:ourt of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. " B (emphasis supplied)

[See also Kihoto Hollohan v. Zachil/hu & Ors., [1992] Supp 2 SCC 651, 711]. c

198. The learned counsel for the respondents have, in my opm1on, rightly not disputed the above statement of law made in the larger Bench decisions of this Court. They, however, stated that a Committee was appointed by Parliament, which went into the allegations against the petitioners. Adequate opportunity had been afforded to the members and D after considering the relevant material placed before it, a decision was taken holding them guilty. The said action was approved by the House and as such, the law laid down in the above decisions has no application to the fact-situation and no grievance can be made against it.

199. In my view, the submission of the respondents deserves acceptance. E Taking into account serious allegations against some of the members of the House, Parliament decided to inquire into correctness or otherwise of the charges by constituting an 'Inquiry Committee'. The members were asked to offer their explanation and considering the evidence and material on record, the Committee appointed by Parliament decided the matter. It, F therefore, cannot be said that the case is covered by exceptional part of clause (1) of Article 122. It cannot be overlooked that this Court is exercising power of 'judicial review', which by its nature limited to serious infirmities of law or patent illegalities. It cannot, therefore, enter into sufficiency of material before the authority nor can substitute its own opinion/finding/ decision for the opinion/finding/decision arrived at by such authority. G Hence, even if there is any irregularity in adopting the procedure or in appreciating evidence by the Committee or in approving the decision by Parliament, it squarely falls under the 'protective umbrella' of Article 122(1) of the Constitution and this Court cannot interfere with the decision in view of the constitutional protection granted by the said provision. H

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

A 200. Neither the Committee appointed by Parliament can be said to be a 'Court' stricto sensu, nor it is bound by technical rules of evidence or procedure. It is more in the nature of 'fact-finding' inquiry. Since the dignity, decorum and credibility of Parliament was at stake, the Committee was appointed which was required to act with a view to restore public faith, confidence and honour in this august body without being inhibited by B procedural impediments.

201. In this connection, it is profitable to refer to Mudgal. In that case also, a Committee was appointed to inquire into charges leveled against a member of Parliament. Certain directives were issued to the Committee. C Directive No.2 issued by the Speaker was relevant and read thus:

"The Committee on the Conduct of a Member that has been constituted is a Court of Honour and not a Court of Law in the strict sense of the term. It is therefore not bound by technical rules. It has to mould its procedure so as to satisfy the ends of justice and ascertain the true facts of the case. In Courts of Law, excessive cross-examination eventually turns into a battle of wits and that should not be the atmosphere of a Court of Honour. Here the effort should be to simplify the procedure and to lay down clear rules which ensure ascertainment of Truth, fairplay and justice to all concerned. ! am, therefore, of opinion that normally the questions should be put by the Chairman and the Members but that does not mean that the counsel appearing in the case is debarred from putting any questions whatsoever. It is open to the Committee in the light of particular circumstances, of which they alone are the best judges, to permit the counsel to put questions to a witness with the permission of the Chairman. I feel that this should meet the requirements of the present case." (emphasis supplied)

OBSERVANCE OF NATURAL JUSTICE

G 202. It was also urged that the Committee had not given sufficient opportunity to the petitioners to defend them and had not complied with the principles of natural justice and fair play. It was submitted that the doctrine of natural justice is not merely a matter of procedure but of substance and any action taken in contravention of natural justice is violative of fundamental H rights guaranteed by Articles 14, 19 and 21 of the Constitution. Reference

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.l 619

in this connection was made to Maneka Gandhi v. Union of India, [1978] A 1 SCC 248 : AIR (1978) SC 597; Kihoto Holohan and other decisions.

203. So far as principle oflaw is concerned, it is well-settled and cannot be disputed and is not challenged. In my opinion, however, in the facts of the case, it cannot successfully be contended that there is breach or non- observance of natural justice by the Committee. Reading of the Reports B makes it clear that adequate opportunity had been afforded to the petitioners > .. and thereafter the action was taken. Notices were issued to the members, CDs were supplied to them, evidence of witnesses was recorded, defence version was considered and 'findings and conclusions' were reached. c

204. So far as the Committee constituted by the Lok Sabha is concerned, it stated:

"JV Findings and Conclusions

32. The Committee viewed the VCDs comprising the relevant video footage aired on the 'Aaj Tak' TV Channel on 12 December, 2005, perused the transcripts thereof, considered the written statements submitted by each of the said ten members and their oral evidence and also the oral evidence of Shri Aniruddha Bahal, Kumar Badal and Ms. Sushasini Raj of Cobrapost.Com who conducted the 'Operation Duryodhan'.

33. The Committee note that the concerned representatives of the Portal Cobrapost.Com namely Shri Aniruddha Bahal, Ms. Suhasini Raj and Shri Kumar Badal approached the members posing ........ F as representatives of a fictitious company, through a number of middlemen, some of whom were also working as Private Secretaries/ Personal Assistants of the members concerned. They requested the members to raise questions in Lok Sabha and offered them money as a consideration thereof. Money was accepted by the members directly and also through their Private Secretaries. They deposed G on oath that in the money sequences shown on TV Channel Aaj Tak there was no misrepresentation. They .have also given to the •.> -; Committee the raw footage covering the situation before and after the scene in question. While the Aaj Tak clippings have gone through video cleaning and sound enhancement, corresponding H

620 SUPREME COURT REPORTS (20011 1 s:c.R

A thereto are extended versions of unedited raw footage of the tapes to make it apparent that nothing had been misrepresented. Besides this Shri Aniruddha Bahal also .submitted the "Original tapes of money acceptance of whatever length the incident it may be". There are 20-25 tapes and the total footage pertains to money acceptance. Each tape is a complete tape showing the whole B incident. In 'the course of her evidence Ms. Suhasini Raj has given the details of the money given to the MPs directly as also through the middlemen.

34. As against this evidence are the statements of all the said c ten members. The Committee note that all the members have denied the allegations leveled against them. The common strain in their testimony is that the clippings are morphed, out of context and a result of 'cut and paste'. The clippings of a few minutes, they averred, do not present full victure and they needed full tapes including the preceding and sµcceeding scenes to prove what they termed as the falsehood thereof. They claimed that the entire exercise was aimed to trap them and lower the prestige of the Parliament.

35. The Committee have given serious consideration to the requests made by the ·said members for being provided the full footage of video recordings, all the audio tapes and their request for extension of time and being allowed to be represented through their counsels.

In this context the Committee would like to bring it on record that all the ten members while deposing before the Committee were asked whether they would like to view the relevant video footage so that they could point out the discrepancies therein if any. All the members, refused to view the relevant video footage. The Committee, therefore, feel that the requests by· the members for unedited and entire video footage would only lead to delaying the consideration of the matter and serve no useful purpose.

36. The Committee having given in-depth consideration to the evidence and statements of the representatives of Cobrapost.com and the members, are of the view that the evidence against the

4 RAJA RAM PAL 1·. THE HON'BLE SPEAKER. LOK SABHA [C.K. THAKKER. J.] 621

i members is incriminating. The Committee note that the A Cobrapost.com representatives gave their statement on oath and would be aware of the consequences of makir.g any false or incorrect statement. They have also supplied the unedited copies of original video situations where money changed hands. Transcripts of the said videos have also been supplied. Had the Cobrapost.com been reluctant in supplying the original unedited video tapes there could have been scope for some adverse inference about the authenticity of the "money sequences" as telecast by Aaj Tak. But that is not so.

37. The Committee are also of the view that the plea put forth by the said ten members that the video footages are doctored/ morphed/edited has no merit. If the members had accepted the offer of the Committee to view the relevant footage and pointed out the interpolated portions in the tape, there would have been justification for allowing their plea for more time for examining the whole tapes. Having seen the unedited raw footage of the Cobrapost.com pertaining to some of the members, the Committee have no valid / * reason to doubt the authenticity of the video footages.

38. In view of the totality of the facts and circumstances of the case, the Committee are of the opinion that the allegations of accepting money by the said ten members have been established. E The Committee further note that it is difficult to escape the conclusion that accepting money had a direct connection with the work in Parliament.

39. The Committee feel that such conduct of the said members F was unbecoming of members of Parliament and also unethical. The Committee are, therefore, of the view that their conduct calls for strict action.

40. The Committee feel that stem action also needs to be taken against the middlemen, touts and persons masquerading as Private G Secretaries of members since they are primarily responsible for inducing members to indulge in such activities.

41. The Committee note that in the case of misconduct or contempts committed by its members, the House can impose these H

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

A punishments: admonition, reprimand, withdrawal from the House, suspension from the service of the House, imprisonment, and expulsion frpip tpe ~ouse."

The Committee, according to me, rightly made the following observations: B "V Observations

42. The Committee feel that credibility of a democratic institution like Parliament and impeccable integrity of its members are imperative for the success of any democracy. In order to maintain the highest c traditions in parliamentary life, members of Parliament are expected to observe a certain standard of conduct, both inside the House as well as outside it. It is well recognised that conduct of members should not be contrary to the Rules or derogatory to the dignity of the House or in any way inconsistent with the standards which D Parliament is entitled to expect of its members.

43. The Committee wish to emphasise that ensuring probity and standards in public life is sine qua non for carrying credibility with the public apart from its own intrinsic importance. The waning confidence of the people in their elected representatives can be restored through prompt action alone. Continuous fight against corruption is necessary for preserving the dignity of the country. The beginning has to be made with holders of high public offices as the system is, and ought to be, based on morality. When the Committee say so, they are also aware of and wish to put on record that a large number of leaders spend their life time in self-less service to the public.

44. The Committee find it pertinent to note the following observations made by the Committee of Privileges of Eleventh Lok Sabha in their Report on 'Ethics, Standards in PubliC Life, Privileges, G Facilities to members and related matters':

"Voicing the constituents' concerns on the floor of the Houst! is the primary parliamentary duty of an elected representative. Any attempt to influence members by improper means in their H parliamentary conduct is a breach of privilege. Thus, offering to a

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J] 623

member a bribe or payment to influence him in his conduct as a A member, or any fee or reward in connection with the promotion of or opposition to, any Bill, resolution, matter or things submitted or intended to be submitted to the House or any Committee thereof, should be treated as a breach of Code of Conduct. Further, any offer of money, whether for payment to an association to which a member belongs or to a charity, conditional on the member taking B up a case or bringing it to a successful conclusion, is objectionable. Offer of money or other advantage to a member in order to induce him.to take up an issue with a Minister may also constitute a breach of Code. Similarly, acceptance of inducements and gratification by members for putting questions in the House or for promotion of or c opposition to any Bill, resolution or matters submitted to the House or any Committee thereof involves the privileges and contempt proceedings.

The privilege implications apart, the Committee is constrained to observe that such attempts and acts are basically unethical in nature."

45. The Committee are, therefore, deeply distressed over acceptance of money by members /or raising parliamentary questions in the House, because it is by such actions that the credibility of Parliament as an institution and a pillar of our democracy is eroded. " (emphasis supplied)

205. The Committee accordingly recommended (by majority of 4 : 1) expulsion of all the ten members from the membership of Lok Sabha. F

206. The recommendation was accepted by the House and consequential notification was issued on December 23, 2005 expelling all the members from Lok Sabha with effect from afternoon of December 23, 2005.

207. So far as Rajya Sabha is concerned, the Committee on Ethics G recorded a similar finding and observed that it was convinced that the member had accepted money for tabling questions in Rajya Sabha and the pleas raised by him in defence were not well-founded.

The Committee rightly stated: H

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

A "Parliamentary functioning is the very basis of our democratic structure upon which the whole constitutional system rests. Anything, therefore, that brings the institution of parliament into disrepute is extremely unfortunate because it erodes public confidence in the credibility of the institution and thereby weaken the grand edifice of our democratic polity." B The Committee then observed:

"The Committee has applied its mind to the whole unfortunate incident, gave full opportunity to the Member concerned to make submissions in his defence and has also closely examined witnesses c from Cobrapost.Com and Aaj Tak. The Committee has also viewed the video tapes and heard the audio transcripts more than once. After taking all factors into consideration, the overwhelming and clinching evidence that the member has, in fact, contravened para 5 of the code of conduct for members of the Rajya Sabha and D having considered the whole matter in depth, the committee, with great sadness, has come to the conclusion that the member has acted in a manner which has seriously impaired the dignity of the house and brought the whole institution of parliamentary democracy into disrepute. The Committee therefore recommend that Dr. E Chhattrapal Singh Lodha be expelled from the membership of the House as his conduct is derogatory to the dignity of the House and inconsistent with the code of conduct which has been adopted by the House."

208. The Committee thus recommended expulsion of Dr. Lodha. One F member of the Committee suggested (clarifying that it was not a 'dissent note'), to seek opinion of this Court under Article 143( I) of the Constitution.

209. The House agreed with the recommendation and expelled Dr. Lodha. A notification was issued on December 23, 2005 notifying that Dr. Lodha had ceased to be a member of Rajya Sabha with effect from afternoon G of December 23, 2005.

ISSUE: WHETHER PRE-JUDGED

21 O. One of the grievances of the petitioners is that the issue had .. - H already been pre-judged even before a Committee was appointed by

RA.IA RAM PAL"· THE HON'BLE SPEAKER, LOK SABHA [CK. THAKKER. .I] 625

Parliament. In support of the said complaint, the counsel drew the attention of the Court to a statement by the 1-lon'ble Speaker of Lok Sabha on December 12, 2005:

"Nobody would be spared".

211. An attempt was made that the Hon 'ble Speaker, even before the constitution of Committee had proclaimed that the petitioners would not be • -+ s;:iared. Appointment of Committee, consideration of allegations and recording of findings were, therefore, in the nature of an 'empty formality' to 'approve' the tentative decision taken by the Hon'ble Speaker and for that reason also, the action is liable to be interfered with by this Court. c

212. In my opinion, the contention has no force. The petitioners are not fair to the Hon'ble Speaker. They have taken out one sentence from the speech of Hon'ble Speaker of Lok Sabha and sought to create an impression as if the matter had already been decided on the day one. It was not so. The entire speech wherein the above sentence appears is part of the Report oi the Committee and is on record. It reads thus:

"Hon. Members, certain very serious events have come to my notice as also of many other hon. Members. It will be looked into with all importance it deserves. I have already spoken to and discussed with all Hon. Leaders of different Parties, including the Hon. Leader of the Opposition and all have agreed that the matter is extremely serious if proved to be correct. I shall certainly ask the hon. Members to explain what has happened. In the meantime, I am making a personal request to all of them 'please do not attend the Session of the House until the matter is looked into and a decision is taken' .... I have no manner of doubt that all sections of the House feel deeply concerned about it. I know that we should rise to the occasion and we should see that such .an event does not occur ever in future and if anybody is guilty, he should be punished. Nobody would be spared. We shall certainly respond to it in a G manner which behoves as. Thank you very much." (emphasis supplied)

213. It is thus clear that what was stated by the Hon'ble Speaker was that "if anybody is guilty, he would be punished. Nobody would be spared". H

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

A In other words, an assurance was given by the Hon'ble Speaker to the members of august body that an appropriate action will be taken without considering the position or status of an individual member and if he is found guilty, he will not be spared. The statement, in my judgment, is a responsible one, expected of the Hon'ble Speaker of an august body of the largest democracy. I, therefore, see nothing in the above statement from which it B can be concluded that the issue had already been decided even before the Committee was constituted and principles of natural justice were violated.

CASH FOR QUERY: WHETHER MERE MORAL WRONG

C 214. It was also urged that taking on its face value, the allegations agajnst the petitioners were that they had accepted money for tabling of questions in Parliament. Nothing had been done within the four walls of the House. At the most, therefore, it was a 'moral wrong' but cannot fall within the mischief of 'legal wrong' so as to empower the House to take any action. According to the petitioners, 'moral obligations' can neither be converted D into 'constitutional obligations' nor non-observance thereof would violate the scheme of the Constitution. No action, therefore, can be taken even if it is held that the allegations were well-founded.

215. I am unable to uphold the contention. It is true that Indian E Parliament is not a 'Court'. It cannot try anyone or any case directly, as a court of justice can, but it can certainly take up such cases by invoking its jurisdiction concerning powers and privileges.

216. Dealing with 'Corruption or impropriety', Sir Erskine May stated: F "The acceptance by a Member of either House of a bribe to influence him in his conduct as a Member, or of any fee, compensation or reward in connection with the promotion of or opposition to any bill, resolution, matter or thing submitted or intended to be submitted to either House, or to a committee, is a G contempt. Any person who is found to have offered such a corrupt consideration is also in contempt. A transaction of this character is both a gross affront to the dignity of the House concerned and an attempt to pervert the parliamentary process implicit in Members' I- ... free discharge of their duties to the House and (in the case of the H Commons) to the electorate".

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [CK THAKKER . .I] 627

217. Hilaire Burnett, ('Constitutional and Administrative law', Fourth A Edn.; pp.571-72) also refers to "Cash for questions", which started in 1993. lt was alleged that two members of Parliament, Tim Smith and Neil Hamilton received payments/gifts in exchange for tabling parliamentary questions. Both of them had ultimately resigned.

218. The rapidly accelerating and intensifying atmosphere of suspected B corruption-sleaze-in public life caused the Prime Minister to appoint a judicial inquiry into standards of conduct in public life.

219. The author also observed; "The cash for questions affair also raises issues concerning the press". c

220. The Committee went into the allegations against the officers of Parliament and recommended punishment. It criticized the role of the Press as well, but no action had been taken against the newspaper.

221. Solomon Commission and Nolan Committee also considered the problem of corruption and bribery prevailing in the system and made certain suggestions and recommendations including a recommendation to clarify the legal position as to trial of such cases.

222. I may state that I am not expressing ar,y opinion one way or the other on the criminal trial of such acts as also the correctness or otherwise of the law laid down in P. V. Narsimha Rao. To me, however, there is no doubt and it is well-settled that in such cases, Parliament has power to take up the matter so far as privileges are concerned and it can take an appropriate action in accordance with law. If it feels that the case of 'Cash F for query' was made out and it adversely affected honesty, integrity and dignity of the House, it is open to the House to attempt to ensure restoration of faith in one of the pillars of democratic polity.

223. I am in agreement with what has been stated by Mc Lachlin, J. (as she then was) in Fred Harvey, already referred to: G

- "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. lf they do, two consequences are apt to result. First, H

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

A the functioning of the legislature may be impaired. Second, public confidence in the legislature and the govemmentmay be undermined. r - No democracy can afford either".

(emphasis supplied)

B DOCTRINE OF PROPORTIONALITY

224. It was contended that expulsion of a member of Parliament is a drastic step and even if the House possesses such power, it cannot be lightly restored to. It is against the well established principle of proportionality. According to the petitioners, such a step would do more harm to the constituency than to the member in his personal capacity. It was, therefore, submitted that proper exercise of power for misbehaviour of a member is to suspend him for the rest of the day, or at the most, for the remaining period of the session. If a folly has been committed by some members, the punishment may be awarded to them but it must be commensurate with such act which should not be severe, too harsh or unreasonably excessive, depriving the constituency having its representation in the House.

225. Now, it cannot be gainsaid that expulsion of a member is a grave measure and normally, it should not be taken. I also concede that Palriament could have taken a lenient view as suggested by the learned counsel for the petitioners. But it cannot be accepted as a proposition of law that since such action results in deprivation of constituency having its representation in the House, a member can never be expelled. Ifrepresentation of the constituency is taken to be the sole consideration, no action can be taken which would result in absence of representation of such constituency in the House. Such interpretation would make statutory provisions (the RepresP.ntation of the People Act, 1951) as also constitutional scheme (Articles 84, 102, 190, 191, 192, Tenth Schedule, etc.) non-workable, nugatory and otiose. If a member is disqualified or has been convicted by a competent court, he has to go and at least for the time being, till new member is elected, there is no representation of the constituency in the House but it is inevitable and cannot be helped.

226. There is one more aspect also. Once it is conceded that an action of suspension of a member can be taken (and it was expressly conceded),

RAJA RAM PAL"· THE HON'BLE SPEAKER, LOK SABHA [CK THAKKER, J] 629

I fail to undc stand why in principle, an action of expulsion is impossible or illegal. In a given case, such action may or may not be lawful or called for, but in theory, it is not possible to hold that while the former is permissible, the latter is not. If it is made referable to representation of the constituency, then as observed in Raj Narain, withdrawal of a member from the House even for a brief period is a serious matter both for the member and his constituency. Important debates and votes may take place during his absence even if the period be brief and he may not be able to present his view-point or that of the group or that of the constituency he represented . ., r It is, however, in the nature of disciplinary or punitive action for a specific parliamentary offence, namely, disorderly behaviour. Moreover, ifthe House has a right to expel a member, non-representation of the constituency is merely a consequence, nothing more. "If the constituency goes unrepresented in the Assembly as a result of the act of an elected member inconsistent with the dignity and derogatory of the conduct expected of an elected member, then it is the voters who alone will have to take the blame for electing a member who indulges in conduct which is unbecoming of an elected representative".

POSSIBILITY OF MISUSE OF POWER BY PARLIAMENT

227. Finally, it was strenuously urged that Parliament/ State Legislature should not be conceded such a drastic power to expel a member from the E House. As Maintland has stated, it is open to Parliament to expel a member on the ground of 'ugly face'. Even in such case, no Court of Law can grant relief to him. Considering ground-realities and falling standards in public life, such an absolute power will more be abused than exercised properly. F

228. I am unable to accept the submission. Even in England, where Parliament is sovereign and supreme and can do everything but 'make woman a man and a man a woman', no member of Parliament has ever been expelled on the ground of 'ugly face'. And not even a single incident has been placed before this Court to substantiate the extreme argument. Even Maitland himself has not noted any such instance. On the contrary, he had G admitted that normally, the power of expulsion can be exercised for illegalities or misconduct of a serious nature.

229. Again, it is well-established principle oflaw that the mere possibi\ity or likelihood of abuse of power does not make the provision ultra vires or H

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

A bad in law. There is distinction between existence (or availability) of power and exercise thereof. Legality or otherwise of the power must be decided by considering the nature of power, the extent thereof, the body or authority on whom it has been conferred, the circumstances under which it can be exercised and all other considerations which are relevant and germane to the exercise of such power. A provision of law cannot be objected only on the B ground that it is likely to be misused.

230. In State of Rajasthan v. Union of India, [1977] 3 SCC 592, 658 : AIR (1977) SC 1361 dealing with an identical contention, Bhagwati, J. (as His Lordship then was) stated: c "It must be remembered that merely because power may some time be abused, is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief'. D (emphasis supplied)

[see also Ajit Kumar Nag v. Indian Oil Corporation, [2005] 7 SCC 764].

E 231. I am reminded what Chief Jllstice Marshall stated before about two centuries in Providence Bank v. Alphens Billings, 29 US 504 [1830]: 7 Law Ed939:

"This vital power may be abused; but the Constitution of the United States was not intended to furnish the corrective for every F abuse of power which may be committed by the State Governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents furnish the only security where there is no express contract against unjust and excessive taxation, as well as against unwise legislation generally. " G (emphasis supplied)

CONCLUDING REMARKS

232. I have already held that the decisions taken, orders made, findings recorded or conclusions arrived at by Parliament/State Legislature are H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [CK THAKKER. J] 631

·~ subject to judicial review, albeit on limited grounds and parameters. If, A therefore, there is gross abuse of power by Parliament/ State Legislature, this Court will not hesitate in discharging its d1:1ty by quashing the order or setting aside unreasonable action.

233. I am reminded what Justice Sarkar stated in Keshav Singh: B "I wish to add that I am not one of those who feel that a Legislative Assembly cannot be trusted with an absolute power of committing for contempt. The Legislatures have by the Constitution been expressly entrusted with much more important things. During the fourteen years that the Constitution has been in operation, the C Legislatures have not done anything to justify the view that they do not deserve to be trusted with power. I would point out that though Art. 211 is not enforceable, the Legislatures have shown an admirable spirit of restraint and have not even once in all these years discussed the conduct of Judges. We must not lose faith in D our people, we must not think that the Legislatures would misuse the powers given to them by the Constitution or that safety lay only in judicial correction. Such correct may produce friction and cause more harm than good. In a modem State it is often necessary for the good of the country that parallel powers should exist in different authorities. It is not inevitable that such powers will clash. E It would be defeatism to take the view that in our country men would not be available to work these powers smoothly and in the best interests of the people and without producing friction. I sincerely hope that what has happened will never happen again and our Constitution will be worked by the different organs of the F State amicably, wisely, courageously and in the spirit in which the makers of the Constitution expected them .to act".

234. I am in whole-hearted agreement with the above observations. On my part, I may state that I am an optimist who has trust and faith in both these august units, namely, Legislature and Judiciary. By and large, G constitutional functionaries in this country have admirably performed their functions, exercised their powers and discharged their duties effectively, efficiently and sincerely and there is no reason to doubt that in coming years also they would continue to act in a responsible manner expected of them. I am equally confident that not only all the constituents of the State will keep H

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

A themselves within the domain of their authority and will not encroach, trespass or overstep the province of other organs but will also act in preserving, protecting and upholding the faith, confidence and trust reposed in them by the founding Fathers of the Constitution and by the people of this great country by mutual regard, respect and dignity for each other. On the whole, the situation is satisfactory and I see no reason to be disappointed B for future.

235. With the above observations and pious hope, I dismiss the Writ Petition as also all transferred cases, however, without any order as to costs.

C RA VE END RAN, J.:

"Those three great institutions - the Parliament, the Press (Media) and the Judges - are safeguards of justice and liberty, and they embody the spirit of the Constitution."

D - Lord Denning

have had ·the privilege of reading the exhaustive and erudite judgment of the learned Chief Justice and the illuminating concurring judgment of learned brother Thakker J., upholding the expulsion of ten E members of Lok Sabha and one member of Rajya Sabha. I respectfully disagree.

Factual Background :

2. On 12.12.2005, a TV News Channel -Aaj Tak showed some video- F footage of scime persons, alleged to be members of Parliament accepting money for tabling questions or raising issues in the House, under the caption 'operation Duryodhana' ("Cash for Questions"). On the same day when the House met, the Hon'ble Speaker made the following statement :-

G "Hon. Members, certain very serious events have come to my notice as also of many other Hon. Members. It will be looked into with all importa~e it deserves. I have already spoken to and discussed with all Hon. Leaders of different parties, including the Hon. Leader of the Opposition, and all have agreed that the matter 1• I

H is extremely serious if proved to be correct. I shall certainly ask the

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 633

Hon. Members to explain what has happened. In the meantime, I am making a personal request to all them 'please do not attend the Sessions of the House until the matter is looked into and a decision is taken'....... I have no manner of doubt that all sections of the House feel deeply concerned about it. I know that we should rise to the occasion and we should see that such an event does not occur ever in future and if anybody is guilty, he should be punished. Nobody would be spared. We shall certainly respond to it in a manner which behaves us. Thank you very much."

3. On the same day, at about 6 P.M., the Hon'ble Speaker made another statement on the issue, announcing the constitution of an Enquiry Commit- C tee consisting of five Parliamentarians. Relevant portion of that statement is extracted below :

"I have decided, which has been agreed to by the Hon. Leaders, that all the concerned Members will be asked to submit their individual statements/explanations regarding the allegations made D against them today on the TV Channel Aaj Tak before 10.30 a.m. on 14th December, 2005. The statements/explanations given by those members will be placed before the Enquiry Committee con- sisting of the following Hon. Members - E

1. Shri Pawan Kumar Bansal (Chairman)

2 Prof. Vijay Kumar Malhotra

3. Md. Salim

4. Prof. Ram Gopal Yadav F

5. Thiru C. Kuppusami

The Committee is requested to give its Report by 4 p.m. on 21st December, 2005. The Committee is authorized to follow its own G procedure. The Report will be presented before the House for its consideration. " . ...

4. 'fhe Lok Sabha Secretariat sent communications dated 12.12.2005 to the ten members calling for their comments in regard to the improper conduct H

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

A shown in the video footage. They were also instructed not to attend the sitting of the House till the matter was finally decided. The members submitted their responses and denied any wrong doing on their part. The Speaker secured VCDs containing the video footage showing 'improper conduct' from the News Channel. The ten members were supplied copies thereof. The Enquiry Committee examined on oath Shri Aniruddha Bahl, Ms. B Suhasini Raj and Shri Kumar Badal of the Portal "Cobrapost.Com" who had carried the sting operation. The Committee viewed all the VCDs containing the relevant video footage as also the unedited raw video footage and perused the transcripts. The ten members alleged that the video tapes were morphed/manipulated, but, however, refused to view the video clippings in the presence of the Committee and point out the portions which according to them were morphed/manipulated. They were not given any opportunity to cross-examine the sting operators, nor granted copies of the entire unedited video footage and other documents requested by them.

5. After considering the said material, the committee submitted its report dated 22.12.2005 to the Speaker. It was tabled in the House on the same day. The said report contained the following findings :

"(a) The representatives of the Portal "Cobrapost.com" namely Shri Aniruddha Bahal, Ms. Suhasini Rajand and Shri Kumar Badal approached the members posing as representatives of the fictitious company, through a number ofmiddlerr:en, some of whom were working as Private Secretaries/Personal Assist- ants of the members concerned. They requested the members to raise questions in Lok Sabha and offered them money as

- consideration. Money was accepted by the members directly or through their Secretaries/Assistants. Acceptance of money ~

by the ten members was thus established.

(b) The plea put forth by the ten members that the video footages were morphed/manipulated has no merit. Their conduct was unbecoming of members of Parliament, unethical and called for strict action.

(c) Stern action also needs to be taken against the middlemen, touts and persons masquerading as Private Secretaries of I 1 members since they are primarily responsible for inducting members of Parliament into such activities.

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 635

The Committee was of the view that in the case of misconduct by the members or contempt of the House by the members, the House can impose any of the fortowing punishments : (i) admonition; (ii) reprimand; (iii) withdrawal from the House; (iv) suspension from the House; (v) imprison- ment; and (vi) expulsion from the House. The Committee concluded that continuance of the ten persons as members of Lok Sabha was untenable and recommended their expulsion."

.. i On 23.12.2005, the Leader of the House moved the following Motion in the House:

"That this House having taken note of the Report of the C Committee to inquire into the allegations of improper conduct on :he part of some members, constituted on 12th December, 2005, accepts the finding of the Committee that the conduct of the ten members of Lok Sabha namely, Shri Narendra Kumar Kushawaha, Shri Annasaheb M. K. Patil, Shri Manoj Kumar, Shri Y. G. Mahajan, D Shri Pradeep Gandhi, Shri Suresh Chandel, Shri Ramsevak Singh, Shri Lal Chandra Kol, Shri Rajaram Pal and Shri Chandra Pratap Singh was unethical and unbecoming of members of Parliament and their continuance as members of Lok Sabha is untenable and resolves that they may be expelled from the membership of Lok Sabha." E

An amendment to the Motion for referring the matter to the Privileges Committee, moved by a member (Pro£ Vijay Kumar Malhotra), was rejected. After a debate, the Motion was adopted by voice vote. As a consequence .. ' on the same day, a notification by the Lok Sabha Secretariat was issued F notifying that 'consequent on the adoption of a Motion by the Lok Sabha on the 23rd December, 2005 expelling the ten members from the membership of the Lok Sabha', the ten members ceased to be members of the Lok Sabha, with effect from the 23rd December, 2005 (afternoon).' G

7. Similar are the facts relating to Dr. Chhattrapal Singh Lodha, Member of Rajya Sabha. On 12. 12.2005, the Chairman of the Rajya Sabha made a statement in the House that the dignity and prestige of the House had suffered a blow by the incidents shown on the TV Channel, that it was necessary to take action to maintain and protect the integrity and credibility H

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

A of the House, and that he was referring the episode to the Ethics Committee for its report. On the same day, Ethics Committee held a meeting and took the view that the member had prima facie contravened Part V of the Code of Conduct which provided :

"Members should never expect or accept any fee, remuneration or B benefit for a vote given or not given by them on the floor of the House, for introducing a Bill, for moving a resolution or desisting t .. from moving a resolution, putting a question or abstaining from asking a question or participating in the deliberations .of the house or a Parliamentary Committee." c It submitted a preliminary report recommending suspension pending final decision and giving of an opportunity to Dr. Lodha to explain his position. The said report was accepted. By letter dated 13.12.2005. Dr. Lodha was required to give his comments by l P.M. on 15.12.2005. Thereafter the Committee gave a report holding that the member had contravened Part V D of the Code of Conduct and had acted in a manner which seriously impaired the dignity of the Hous.e and brought the whole institution of Parliamentary democracy into disrepute. The Committee recommended Dr. Lodha to be expelled from the membership of the House. On 23.12.2005, the Chairman of the Ethics Committee moved that its final report be accepted. After debate, E the House agreed with the recommendation in the report by voice vote. As a consequence, the ~ecretary General of Rajya Sabha issued a notification dated 23.12.2005 declaring that Dr. Lodha had ceased to be a member of the Rajya Sabha with effect from that date.

F The Issue:

8. The petitioners contend that there can be cessation of membership of either House of Parliament only in the manner provided in Articles 101 and 102; and that cessation of membership by way of expulsion is alien to the constitutional framework of Parliament. It is submitted that a person can be disqualified for being a member of Parliament on the ground of corrup- tion, only upon conviCtion for such corruption as contemplated under section 8 of Representation of People Act, 1951 read with clause ( 1)(e) of Article 102. It is submitted that there can be no additions to grounds for cessation of membership under Articles 10 l and 102, unless it is by a law made by Parliament as contemplated under Article 102(l)(e), or by an

RAJA RAM PAL r. THE HON'BLE SPEAKER, LOK SAHHA [RA VEENDRAN, J] 637

amendment to the Constitution itself. It is further submitted that reading the power of expulsion, as a part of parliamentary privilege under Article l 05(3) is impermissible. It is, therefore, submitted that Parliament has no power of expulsion (permanent cessation of membership). On the other hand, the Union of India and the Attorney General assert that Parliament has such power. The assertion is based on two premises. First is that Article 10 l relating to vacancies is not exhaustive. The Second is that the power of B Parliament to expel a member is a part of the powers, privileges and immunities conferred on the Parliament, under Article 105(3), and it is distinct and different from 'disqualifications' contemplated under Article 102. c

9. When the incident occurred, the response of the Hon. Speaker and the Parliament, in taking prompt remedial action, against those who were seen as betraying the confidence reposed by the electors, showed their concern to maintain probity in public life and to cleanse Parliament of elements who may bring the great institution to disrepute. But, howsoever bona fide or commendable the action is, when it is challenged as being unconstitutional, this Court as the interpreter and Guardian of the Constitution has the delicate task, nay the duty, to pronounce upon validity of the action. There is no question of declining to or abstaining from inquiring into the issue merely because the action is sought to be brought under the umbrella of parliamentary privilege. The extent of parliamentary power and privilege, and whether the action challenged is in exercise of such power and privilege, are also matters which fall for determination of this Court. In this context, I may usefully refer to the words ofBhagwati, J. (as His Lordship then-was) in State of Rajasthan v. Union of India, AIR (1977) SC 1361: F "But merely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution if it raises an issue of constitutional determination ...... ., the Court cannot fold its hands in despair and declare "Judicial hands off." So long as a question arises whether an authority under the constitution has acted within the limits of G its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so ...... This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and H

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

A if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the consti- tutional values and to elz/orce the constitutional limitations. That is the essence of the rule of law."

Where there is m"an.ifestly unauthorized exercise of power under B the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of Government, is committed the conservation and furtherance of democratic values. The Court's task is to identify those values in the constitutional plan and to work them into life in the cases that c reach the Court..... The Court cannot and should not shirk this responsibility.... "

[emphasis supplied]

D IO. The question before us is not whether the petitioners are guilty of ·having taken money for asking questions, or raising issues in the Parliament The question is, irrespective of whether they are guiltj or not, Parliament t has the power to expel them, thereby effecting permanent cessation of their membership. On the contentions raised, the questions that therefore arise for consideration are : E "(i) Whether Article I 0 I and I 02 are exhaustive in regard to the modes of cessation of membership of Parliament; and whether expulsion by the House, not having been specified as a mode of cessation of membership, is impermissible. F ~ (ii) If the an~wer to the . above question is in the negative, whether.the Parliament has the power to expel its members ( (resulting in permanent cessation of membership) as a part of its powers, privileges and immunities under Article 105(3)."

·G Relevant Principles :

11. I may first refer to the basic principles relevant for the purpose of constitutional interpretation in the context of the first question ..

H l -- Unlike British Parliament, Indian Parliament is not saver-

RAJA RAM PAL•- THE HON'BLE SPEAKER. LOK SABHA [RA VEENDRAN, J J 639 _, eign It is the Constitution which is supreme and sovereign and Parliament will have to act _within, the limitotions imposed by the Constitution :

12. There is a marked distinction between British- Parliament and the - Indian Parliament Briiish Parliament is sovereign. One of the hallmarks of such sovereignty is the right to make or_ unmake any Jaw which no court or body or person can set aside or override. _On the other hand, the Indian Parliament is a creature of the Constitution and its powers, privileges and_ obligations are spe_cified and limited by· the <;:onstitution. A legislature created by a written Constitution must act within the ambit of its power as defined by the Constitution and subject to the limitations prescribed by the C Constitution. Any act or action of the Parliament contrary to the constitu- tional limitations will be void.

13. In re Art. 143, Constitution of India and Delhi laws Act, AIR ( 1951) SC 332, this Court observed thus : - D "There is a basic difference !-Je~een ~ Indian and the British Parliament in this respect: There is no constitutional limitation to restrain the British Parliament from assigning its powers where it will, but the Indian Parliament qua legislative body is fettered by _a written constitution and it does not possess the sovereign E powers of the British Parliament. The limits of the powers of delegation inJndia would therefore have to be ascertained as a maller of construction from the provisions of the_ Constitution itself-'.' -. {emphasis supplied] F

In Special Reference No.I of 1964 UP Assembly Case, [1965) I SCR 413; a Bench of seven Judges observed thus :

"Jn England, Parliament is sovereign; and in the words of Dicey, the G th_ree distinguishing features of the principle of_Parliamentary Sov- -ereignty -are that Parliament has the right to make or unmake any law whatever; that no person or body is recognized by the Jaw of England is having a right to override or set aside the legislation of Parliament; and that the right or power of P;.,liament extends to .H

SUPREME COURT REPORTS (2007] I S.C.R. . ~/ - r A every part of the Queen's dominion. On the other hand, the essential characteristic of federalism· i~ "the distribution of limited executive, legislative and judicial authority among bodies which are co-ordinate with and independent of each others". The supremacy of the constitution is fundamental to· the existence of a federal State in order to prevent either the legislature of the federal unit or B those of. the member States from destroying or impairing that delicate balance of power which satisfies the particular require- ments of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the consti- tution is protected by the authority of an independent judicial c body to act as the interpreter of a scheme of distribution of powers.

"Therefore, it is necessary to remember that though our Legisla· tures have plenary powers, they function within the limits pre- scribed by the material and relevant provisions of the Constitution .... D Jn a democratic country governed by a written Constitution, it is the Constitution which is supreme and soverelgn.... Therefore, there can be no doubt that the sovereignty which can be claimed by the Parliament in England, cannot be claimed by any Legislature in India in the literal absolute sense .... We feel no difficulty in .E holding that the decision about the construction of Article 194(3) must ultimately rest exclusively with the Judicature of this country."

"Article 212(1) seems to make it possible for a citizen to call in question in the appropriate court oflaw the validity of any proceed- F ings 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 procedure is illegal and unconstitu- tional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure

G is no more than this that the procedure was irregular." ' [emphasis supplied]

Jn Kesavananda Bharati v. State of Kera/a, [1973] 4 SCC 225, it was ,.. observed that the Constitution being supreme, all the organs __, owe their existence to it. Each organ has to. function within the four comers of the H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 641

1 constitutional provisions. The doctrine of parliamentary sovereignty as it A obtains in England does not prevail in India except to the extent provided by the Constitution. The judiciary is entrusted the task of construing the provisions of the Constitution and safeguarding the fundamental rights.

Subsequently, in State of Rajasthan (supra), this Court reiterated : B "It is necessary to assert in the clearest terms, particularly in the ~ context of recent history, that the Constitution is supreme lex, the paramount law of the land, and there is no department or branch of Government above or beyond it. Every organ of Government, be it the executive or the legislature or the judiciary, derives its c authority from the Constitution and it has to act within the limits of its authority. "

[emphasis supplied]

In Sub-Committee on Judicial Accountability v. Union of India, [1991] 4 D 1 SCC 699, a Constitution Bench of this Court held :

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

"In a federal set up, the judiciary becomes the guardian of the Constitution.... The interpretation of the Constitution as a legal instrument and its obligation is the function of the Courts." H

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

.,..,. ( A II. When a Statute, having made specific provisions for certain matters, also incorporates by reference an earlier statute, to avoid reproduction of the matters provided for in the earlier statute, then what is .deemed to f?e incorporated by such reference, are only those provisions of the earlier statute which relate to matters not expressly provided in the latter statute, and which are com- B patible with the express provisions of the latter statute. "

14. The legislative device of incorporation by reference is a well-known device where the legislature, instead of repeating the provisions of a particular statute in another statute, incorporates such provisions in the c latter statute by reference to the earlier statute. It is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier statute into the later. [See MaJy Roy v. State of Kera/a, [1986] 2 SCC 209]. lord Esher M. R. stated the effect of incorporation in Clarke v. Bradlaugh, (1881) (8) QBD 63] thus:-

D "If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been t- held, is to write those sections into the new Act as if they had been actually written in it with the pen-, or printed on it."

E 15. In UP. Assembly case (supra), this Court while considering Article 194(3), identical in content to Article 105(3) of the <;:onstitution, referred to its scope thus :

"Mr. Seervai's argument is that the latter part of Art. 194(3) expressly provides that all the powers which vested in the House F 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 through its Speaker "to have ... G at all times the right to petition, counsel, or remonstrate with their Sovereign through their chosen representative and have a favour- able construction placed on his words was justly regarded by the Commons as fundamental privilege." It is hardly necessary to point I out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder and the privilege of impeachment

RAJA RAM PAL l'. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 643

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 qualification of its members in cases of doubt. This privilege again, admittedly, cannot be claimed by the House. There- B fore, it would not be correct to say that all power and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House."

16. In Chhabildas Mehta v. The Legislative Assembly, Gujarat State, c 1970 Guj. LR 729, a Division Bench of Gujarat High Court speaking through Chief Justice Bhagwati (as he then was) held :