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

"The problem before us is whether the privilege can be read in Article 194(3). It is no answer to this problem to say 'read the D privilege in Article 194(3) and then harmonise it with the other provisions'. If the privilege is inconsistent with the scheme of the Constitution and its material provisions, it cannot and should not be read in Article 194(3). The presumed intention of the Consti- tution-makers in such a case would be that such a privilege should not belong to the House of the Legislature." E [Emphasis supplied]

17. In Hardwari Lal v. The Election Commission of India, (1977) 2 Punj. & Har. 269, the validity of expulsion of a member of legislature came up for consideration. After an elaborate discussion, the majority found that the power of British House of Commons, to expel any of its members, flowed from its privilege to provide for and regulate its own constitution. It was held that such power of expulsion was not available to the Indian Parliament, .. having regard to the fact that the written constitution makes detailed provision for the constitution of the Parliament, elections, vacation of seats and disqualifications for membership. Sandhawalia, J. (as he then was) speaking for the majority of the Full Bench observed thus :

"It was submitted that in view of the language of Article 194(3) each and every parliamentary privilege enjoyed by the House of H

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

A Commons without any exception whatsoever must be deemed as if (

it were in fact written with pen and ink into the Constitution itself. According to the respondents, one must at the outset unreservedly read every power, privilege and immunity of the House of Com- mons within clause (3) and consequently exercisable by the State Legislatures in India as well. However, having done that, one B should thereafter proceed to scrutinize the remaining provisions of th1 Constitution and if some power, privilege or immunity directly conflicts with or contravenes some express or special provision thereof then the same may be eroded on the ground that it is not possible for the House to exercise the same. Nevertheless it was c dogmatically stated that even in the case of a direct or irreconciliable conflict, the privilege must be read into the Constitution and should not be deemed as necessarily deleted or excluded therefrom. In short, the learned Advocate-General for a while canvassed for the acceptance of what may be conveniently called as 'pen and ink theory' for the construction of Article 194(3) of the Constitution. D (23 7) On the other hand, the petitioner forthrightly argued that some of the parliamentary privileges of the House of Commons by their very nature are so inherently alien to our Republican Consti- tution that they can never possibly be deemed to be part thereof.... E It was submitted that the only reasonable and consistent canon of construction in this situation was that all the parliamentary privi- leges of the House of Commons which in their very essence and by their intrinsic nature were patently contradictory to the Indian Constitution, then these must necessarily be excluded therefrom at the very threshold.

(238) I believe, that the fallacy of the argument on behalf of the respondent is highlighted, the moment one particularizes the same and refers to some of the well-known and admitted privileges of the House of Commons. It was conceded before us that not one but innumerable parliamentary powers and privileges of the House of Commons were inextricably linked with the Sovereign, that is, King or Queen of England, as the case may be. Can one imagine that the word 'King' or 'Queen' mentioned therein should be deemed to have been written in pen and ink in our Constitution also when its very preamble solemnly declares that the people of India have

RAJA RAM PAL v. THE HON'BLE SPEAKER. LOK SABHA [RA VEENDRAN, J.] 645

.., constituted themselves into a Sovereign, Socialist Secular Demo- A cratic Republic ? In particular, one may consider the accepted parliamentary privilege of the freedom of access to the Sovereign including a right at all times to petition, counsel or remonstrate with the King through their chosen representatives. This is admitted on all hands to be a parliamentary privilege which was considered fundamental by the House of Commons and undoubtedly enjoyed B by it. Can one for a moment conceive that the Republican Consti- tution o(India would incorporate this privilege for its State Legis- latures. How can even one imagine that the founding fathers in the Constituent Assembly had intended to write such a privilege also into our Constitution and to deem it as part and parcel thereof? If c so, to whom were the State Legislatures supposed to petition and with whom were they to counsel or remonstrate with through their chosen representative.s in_ the obvious absence of even the insti- tution of the Monarchy herein ? D (239) Similarly not one but there are tens of parliamentary privileges of the House of Commons which are closely linked with the hereditary House of Lords in England. In particular the power of the House of Lords to punish the contemners of the House by passing judgment as a Court was undoubted. Can one read or even imagine a House of Lords within our polity when the very Constitution E it~elf djsapproves even a rnference to any titles on the basis of heredity and blood alone? Other examples of this nature could perhaps be multiplied ad infinitum but it would perhaps suffice to mention two other undoubted privileges of the House of Commons. It is not in dispute that the said House had a relatively unrestricted F power of impeachment whereby it acted as the prosecutor whilst the House of Lords was the final Court or adjudicator for the same. Would it be possible to assume within our Constitution any .such general parliamentary privilege of impeachment (apart from those which the Constitution in tenns confers) or by analogy to place the Rajya Sabha in the peculiar historical position which the House of G Lords as the final Court in England? Again closely inter-related to this general power of impeachment in the House of Commons was the privilege to pass Acts or Attainder which in terms and effect meant an unrestricted right to pass judgment during the course of impeachment. Can one for a moment read such a power or privilege H

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

{ ,.... A in favour of the State Legislatures in India?

(240) I am of the view that it is essentially tautologous to first read something into the Constitution and in the next breath to proceed to erase the same. This exercise becomes inevitable, if, as sug- gested on behalf of the respondents, one is to first read the King, B the Queen, the House of Lords or the Acts of Attainder into the Constitution and thereafter to proceed to nullify them on the plain ground that by the very nature of things they cannot form part of a Republican Constitution. The pen and ink theory, therefore, in effect becomes indeed a pen, ink and India Rubber theory whereby c one first writes something entirely alien to the Constitution within it and the next moment proceeds to rub it off. ft is well-settled that when a statute includes something in it by a reference to another provision then only that can be deemed to be included which is compatible with the parent provision. To my mind, therefore, the )

plain method of construing Article 194(3) is the usual and the D settled one of not reading something into it which is glaringly anomalous, unworkable and irrational. "

[emphasis supplied]

E Ill. Decisions of foreign courts, though useful to understand the different constitutional philosophies and trends in law, as also common law principles underlying Indian Statutes, are of limited or no assistance in interpreting the special provisions of Indian Constitution, dissimilar to the provisions offoreign constitutions. F

19. Constitution of India differs significantly from Constitutions of other countries. It was made in the background of historical, social and economic problems of this country. Our Constitution-makers forged solu- tions and incorporated them. They made exhaustive provisions relating to Executive, Legislature, and Judiciary with checks and balances. While G making specific and detailed provisions regarding Parliament, the Constitu- tion also earmarked the areas where further provisions could be made by the Parliament by law. On the other hand, the Constitution of England is ;. unwritten and flexible. The distribution and regulation of exercise of governmental power has not been reduced to writing. Further British H Parliament was, at one time, also the highest court of justice and because

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 64'7

of it, regarded as a superior court of record, with all its attendant trappings. A United States has a short and rigid Constitution, expounded considerably by courts. Indian Constitution is exhaustive and sufficiently expounded by the Constitution makers themselves. In fact, with 395 Articles and 12 Schedules, it is the longest among world's Constitutions.

20. In Re. the C.P. and Berar Sales of Motor Spirit & Lubricants B ' j Taxation Act, 1938 - the Central Provinces case AIR (1939) FC 1, the Federal Court observed thus : I

j "for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting and since no two C Constitutions are in identical terms.• it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This may be so even where the words or expressions used are the same in both cases, for a word or phrase may take a colour from its context and bear different senses accordingly." D fn MP. V. Sundaramier & Co. v. State of Andhra Pradesh, AfR (1958) SC 468, this Court cautioned :

"the threads of our Constitution were no doubt taken from other Federal Constitutions but when they were woven into the fabric of E I our Constitution their reach and their complexion underwent changes. Therefore, valuable as the American decisions are as showing how the question is dealt with in sister Federal Constitu- tion great care should be taken in applying them in the interpreta- tion of our Constitution." F The note of caution was reiterated in Atiabari Tea Co. Ltd. v. State of Assam, AIR (1961) SC 232 and Automobile Transport Ltd. v. State of Rajasthan, AIR (19.62) SC 1406, UP.Assembly case (supra), and several other '' subsequent decisions. G Provisions of Indian Constitution :

21. Chapters I, II and IV of Part V relate to Executive, Parliament and Union Judiciary. Detailed reference is necessary to the provisions of Chapter II dealing with Parliament. H

648 SUPREME COURT REPORTS [2007) I S.C.R.

A 21. l) Article 79 relates to Constitution of Parliament and provides that there shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People. Article 80 provides that the composition of Council of States shall be made up of twelve members nominated by the President and not more than 238 representatives of the States and Union Territories. It also B provides that the representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State. Article 81 relates to composition of Lok Sabha and provides that Lok Sabha shall consist of not more than 530 members chosen by direct election from territorial constituencies in the States and not more than 20 members to c represent the Union Territories, chosen in such manner as Parliament may by law provide. Article 83 prescribes the duration of Houses of Parliament. )

Relevant portions thereof are extracted below :

"83. Duration of Houses of Parliament.- (1) The Council of States D shall not be subject to dissolution, but as nearly as possible one- third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.

E (2) The House of the People, unless soone; dissolved, shall continue for [five years] from the date appointed for its first I ( meeting and no longer and the expiration of the said period of [five years] shall operate as a dissolution of the House. :

F Article 85 provides for the sessions of Parliament, prorogation of the Houses .. and di~solution of the House of the people. tr- r· 21.2) Article 84 enumerates the qualifications for membership of Parlia- ment. Article 102 deals with disqualifications for membership. Clause (1) of 't.. Article 102 provides that a person shall be disqualified for being chosen as, ' G and for being, a member of either House of Parliament :

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

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA (RA YEEND RAN, J] 649

b) if he is of unsound mind and stands so declared by a A competent court;

c) if he is an undischarged insolvent;

d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledge- B ment of allegiance or adherence to a foreign State;

e) if he is so disqualified by or under any law made by Parlia- ment." c Clause (2) of Article 102 provides that a person shall be disqualified for being a member of either House of Parliament, if he is so disqualified under the Tenth Schedule.

21.3) Article 10 I deals with vacation of seats. Clause (I) thereof bars a person being a member of both Houses of Parliament, and requires the D Parliament to make a provision by law for the vacation by a person who is chosen as member of both Houses, of his seat in one House or the other. Clause (2) bars a person from being a member both of Parliament and of a House of the Legislature of a State. It provides that if a persori is chosen as a member both of Parliament and of a House of the Legislature of a State, E then at the expiry of such period as may be specified in the rules made by the President, that person's seat in Parliament shall become vacant unless he has previously resigned his seat in the Legislature of the State. Clause (3 ), which is relevant, reads thus :

F "(3) If a member of either House of Parliament -

a) becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of Article 102; or

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

his seat shall thereupon become vacant." H

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

A Clause (4) provides that if for a period of 60 days, a member of either House I .......

of Parliament is without pennission of the House absent from all meetings thereof, the House may declare his seat vacant.

21.4) Article l 03 relates to decision on questions as to disqualifications of members. It is extracted below : B "103. Decision on questions as to disqualifications of members :

(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications c mentioned in clause (1) of article 102, the question shall be referred for the decision of the President and his decision shall be final.

(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion. " D Corresponding provisions in regard to the State Legislatures are found in Articles 168, 170, 171, 172, 174, 173, 191, 190 and 192 of the Constitution.

21.5) It is to be noted expulsion is not mentioned as a mode of E cessation of membership of the Parliament under the Constitution. Nor does it give rise to a vacancy.

21.6) Article 105 deals with powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof. Clauses (1) to (3) F which are relevant, extracted below :

"I 05. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof- (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in G Parliament.

(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so H liable in respect of the publication by or under the authority of

• RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RAVEENDRAN, J.] 651

either House of Parliament of any report, paper, votes or proceed- A in gs.

(3) Jn other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that B House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) ~t, 1978. "

The corresponding provision in regard to State Legislatures and its mem- C bers, is Article 194. The words "shall be those of the House and of its members and C.:lmmittees immediately before coming into force of section 15 of Constitution (Forty Forth Amendment) Act, 1978" in clause (3) of Articles 105 and 194 have replaced the earlier words "shall be those of the House of Commons of Parliament of the United Kingdom, and of its members and Committees, at the commencement of the Constitution". The position even after amendment is the same as the position that existed at the commence- ment of the Constitution.

21.7) The other provisions of Chapter II, relating to Parliament also require to be noticed. Article I 06 relates to salaries and allowances of members. Arti~les 86 to 88 relate to the rights of the President, Ministers and Attorney General to address the Houses. Articles _89 to 98 relate to the officers of Par-liament. Article 99 provides fQ!: oath of office and Article 100 provides for voting in Houses. Articles \07\ to 111 relate to legislative proced~re. Article l 07 contains the pro~s as to introductiQn and passing of Bills. Article I 08 relates to joint sitting of both Houses in certain cases. Article l 09 relates to special procedure in· respect of Money Bills. Article 110 defines "Money Bills". Article 111 requires the presentatton-of Bills passed by the Houses of Parliament to the President for his~ent. Articles 112 to 117 relate to the procedure in financial matters. Article 112 relates to annual financial statement. Article 113 relates to the procedure with respect to estimates. Article 114 relates to appropriation bills. Article 115 relates to supplementary, additional or excess grants. Art-icle 116 relates to votes on account, votes of credit and exceptional grants. Article 117 contains special provisions as to financial bills. Articles 118 to 122 govern the rules of procedure generally to be adopted by the Houses of Parliament. H

652 SUPREME COURT REPORTS (2007) 1 S.C.R.

A Article 118 enables each House of Parliament to make rules for regulating, subject to the provisions of the Constitution, its procedure and the conduct of its business.

Article 119 relates to regulation by Ia~ of procedure in Parliament in relation to financial business. Article 120 relates to the language to be used in B Parliament. Article l 21 places a restriction on discussion in Parliament (in regard to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge). Article 122 bars courts from inquiring into proceedings of Parliament and it is extracted C below:

"122. Courts not to inquire into proceedings of Parliament.-{l) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

D (2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers." E

22. We have referred in detail to the various provisions to demonstrate that as far as the Indian Constitution is concerned, Chapter II of Part V is F a complete Code in regard to all matters relating to Parliament. It provided for every conceivable aspect of Parliament. It contains detailed provisions in regard to the constitution of Parliament, composition of Parliament, sessions, prorogation and dissolution of Parliament, Officers of Parliament, duration of the Houses of Parliament, qualifications for membership, dis· qualifications for being chosen as, and for being members, vacancies of seats, decision on questions of disqualification, powers, privileges and immunities of the Parliament, its Members and Committees, manner of conducting business, the procedure to be adopted by the Parliament in regard to the enactment of laws, persons who can address the Parliament, the language to be used, and the Officers of the Parliament. The entire field in regard to the legislature is covered fully in the following manner :

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RAVEENDRAN,J.] 653

"Subject (Parliament) (State Legislature) A Articles Articles

Constitution & Composition of 79 to 82 168tol71 Houses and election/nomination of members B Duration of Houses and Tenure of 83 172 Office of Members I I I

Sessions, Prorogation and dissolution 85 174 c Qualification for Membership 84 173

Cessation of wembership 102, 101 & 103 192, 190 & 192 (Disqualifications for being chosen as, and for being a member, and vacancies) and decision on D questions of disqualification

Powers, privileges and immunities 105, 122 & 106 194, 212 & 195 of the Legislature, members and Committees, and salaries & E allowances

Restriction on Powers 121 211

Offices of Legislature 89 to 98 178 to 187 F Rules of Procedure and Language 118, 119& 120 208, 209 & 210

Legislative Procedure and Conduct 107 to 111 196 to 201 of Business 112 to 117 202 to 207 99 & 100 188 & 189 G Persons who can address 86 to 88 175to177 the Parliament "

23. The Constitution also makes express provisions for cessation of H

654 SUPREME COURT REPORTS [2007] I S.C.R. ( A tenure of office or removal of every constitutional functionary referred to in the Constitution. I will refer to them briefly :

"(i) Article 61 refers to the procedure for impeachment of Presi- dent. Clause (4) of Article 61 provides that if the resolution is passed by a majority of not less than two-third of the B Members of the House declaring the charge against the President has been sustained, such resolution shall have the ~ ~

effect of removing the President from the office.

(ii) Clau~e (b) of Article 67 deals with the term of office of Vice c President and provides for removal of Vice President from office by a resolution of Council of States passed by majority of all the then members of the Council and agreed to by the House of People.

(iii) Article 75(2), Article 76(4) and Article 156(1) refer to the D Ministers, Attorney General and Governor holding office during the pleasure of the President.

(iv) Article 124 provides that no Judge of Supreme Court shall be removed from his office except by an order of President E passed after impeachment. Articles 148 and 324 provide that the Comptroller & Auditor General of India and the Chief Election Commissioner shall not be removed from their office except in like manner and on like grounds of a Judge of the Supreme Court. F (v) Article 3 I 5 read with Article' 3 I 7 provides how a Chairman or a Member of a Public Service Commission can be removed from office."

Similarly provisions are made in regard to cessation/termination of tenure of G office or removal of all constitutional functionaries with reference to the States. Article I 56(1) relates to Governor, Article 164( IYrelates to Ministers, Article I 65(3) relates to Advocate General, Article 179 relates to Speaker and _,' ~ Deputy Speaker, Article 183 relates to Chairman and Deputy Chairman of Legislative Council, Articles 190 to 192 relate to Members of Legislatures H and Article 217 relates to High Court Judges. "'-

- I • RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 655 1 Whether Articles JOI and 102 are exhaustive of the circumstances in which A there will be cessation of membership ?

24. The word 'disqualified' means to 'make ineligible' or debarred. It also means divested or deprived of rights, powers or privileges. The term 'expel' means to deprive a person of the membership or participation in any

- 'body' or 'organization' or to forcibly eject or force a person to leave a building premises etc. The enumeration of disqualifications is exhaustive and specifies all grounds for debarring a person from being continuing as a member. The British Parliament devised expulsion as a part of its power B

to control its constitution, (and may be as a part of its right of self-protection and self-preservation) to get rid of those who were unfit to continue as c members, in the absence of a written Constitutional or statutory provision for disqualification. Historically, therefore, in England, 'expulsion' has been used in cases where there ought to be a standing statutory disqualification from being a Member. Where provision is made in the Constitution for disqualifications and vacancy, there is no question of exercising any inherent or implied or unwritten power of 'expulsion'.

25. A person cannot be disqualified unless he suffers a disqualification enumerated in Article I 02. Article I 02 refers to 6 types of disqualifications:

"(i) If he holds any office of profit, vide Article 102(l)(a); E

(ii) If he is of unsound mind and stands so declared, vide Article 102(l)(b);

(iiI) If he is an undischarged solvent, vide Article 102(l)(c); F (iv) Ifhe is not a citizen of India, vide Article 19l(l)(d);

(v) If he is disqualified by or under any law made by Parliament.

(vi) If he is disqualified under the Tenth Schedule, vide Article G 102(2)."

Disqualifications have also been prescribed by the Parliament in the Repre- sentation of People Act, 1951 as contemplated under Article ~02(l)(e). The

- ( grounds of disqualifications under the said Act are H

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

A "(i) if he is convicted and sentenced for any offence as provided/ enumerated in Section 8 of the Act;

(ii) if he is found guilty of corrupt practices by an order under Section 99 of the Act vide Section 8-A of the Act;

B (iii) if he is dismissed for corruption or for disloyalty to the State, vide Section 9 of the Act;

(iv) ifhe has a subsisting contract with the appropriate Government for the supply of goods to or for the execution of any works, vide c Section 9-A of the Act;

(v) ifhe is a managing agent, manager or secretary of any company or corporation, in which the appropriate Government has a share, vide Section 10 of the Act;

D (vi) if he is a person who has been declared as disqualified by the Election Commission, vide Section 10-A of the Act."

The Constitution thus expressly enumerates certain grounds of disqualifica- tion (sub-clauses (a) to (d) of clauses (1) and (2) of Article 102). It has also pennitted the Parliament to add disqualifications, by making a law. Passing a resolution by one House, is not of course, making a Jaw.

26. In the case of Members of Parliament, the Constitution has consciously used the word disqualification, both for 'being chosen as a member' and for 'being a member'. That means that when a member becomes disqualified as mentioned in Article 102, he becomes disentitled to continue as a Member of the House.

27. Article -101 specifically provides the circumstances in which a seat of Member of Parliament becomes vacant - G "(a) when a person is member of both Houses of Parliament;

(b) when a person is elected both as a Member of Parliament and t also as a Member of the State Legislature, and does not resign his seat in the legislature of a State within the time specified; H

RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.) 657

(c) when a person becomes subject to any of the disqualifica- A tions mentioned in clause (I) or clause (2) of Article I02;

(d) when he resigns his seat and his resignation is accepted.

(e) when a member is absent from all meetings for a period of 60 days without permission of the House and the House declares B his seat as vacant. "

28. An analysis of Article IOI shows that the Constitution makers provided specifically for three types of vacancies : c "(i) Occurrence of vacancies, for reasons specifically stated in the Constitution itself (vide clauses (2) and (3) of Article IOI).

(ii) Occurrence of vacancies, to be provided by a law made by the Parliament (vide clause (I) of Article IO I). D (iii) Occurrence of vacancy, on a declaration by the House (vide clause (4) of Article IOI). "

If the Constitution makers wanted a vacancy to occur on account of 'expulsion' on a decision or declaration by the House, they would have E certainly provided for it, as they have provided for vacancy on the ground of unauthorized absence, arising on a declaration by the House under clause (4) of Article 101. The Constitution makers did not contemplate or provide for any cause, other than those mentioned in Article I 0 l, for giving rise to

- a vacancy. Thus a seat held by a Member of Parliament does not become vacant, in any manner, other than those stated in Article IO 1. F

29. One argument advanced to contend that Article IOI cannot be considered as exhaustive as to the circumstances in which vacancy occurs in respect of a seat in the Parliamentary, was that it does not provide for vacation of seat by death of a Member. Article I 0 I refers to vacation of seat G by a 'person' who is a member of the House, that is, a person who is alive. When a person is dead, obviously he is not a Member of the House. It --\ would be absurd to contend that a person even after death will continue to hold the seat. The obvious effect of death did not require to be stated and therefore the non-mention of death as a ground for vacancy does not make H

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

A Article 10 l any less exhaustive.

30. Articles 102 and I 01 together include all circumstances in which a membership comes to an end and the seat becomes vacant. The Constitution does not contemplate or provide for the membership of an MP coming to an end in any manner other than what is specifically provided in Articles B 101 and 102. Therefore there cannot be cessation of membership, de hors Articles 101 and 102, by 'expulsion' or otherwise.

Conclusions :

C 31. The Constitution-makers have made detailed and specific provi- sions regarding the manner in which a person becomes a Member of Parliament (elected/nominated), the duration for which he continues as a member and the mann.er in which he ceases to be a member and his seat becomes vacant. Therefore neither the question of election or nomination, nor tenure, nor cessation/termination of membership of the House covered D by the express provisions in the Constitution, can fall under 'other powers, privileges and immunities' of the House mentioned in Article 105(3 ).

32. We have also noticed above that the Constitution makes express provisions for election/appointment and removal/cessation of service of the E Executive (President and Vice-President), Judiciary (Judges of the Supreme Court and High Court) and all other constitutional functionaries (".'-ttomey General, Auditor and Comptroller General, Chief Election Commissioner etc.). It is, therefore, inconceivable that the Constitution-makers would have omitted to provide for 'expulsion' as one of the methods of cessation of membership or consequential vacancy, if it intended to entrust such power to the Parliament. - 33 .. In view of the express provisions in the Constitution, as to when a pers-on gets disqualified to be a member of either House of Parliament (and thereby ceases to be a member) and when a consequential vacancy arises, it is impermissible to read a new category of cessation of membership by way of expulsion and consequential vacancy, by resorting to the incidental powers, privileges and immunities referred to in Article 105. t .'>

34. Clause (3) of Article 105 opens with the words 'in other respects'. H The provision for 'powers, privileges and immunities' in clause (3) occurs

I RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA YEEND RAN, J.] 659

-iJ ~ after referring to the main privilege of freedom of speech in Parliament, in A clause (I) of Article 105, and the main immunity against court proceedings ". in clause (2) of Article I 05. Therefore, clause (3) is intended to provide for 'non-main' or 'incidental' or miscellaneous powers, privileges and immunities which are numerous to mention. Two things are clear from clause (3). It is not intended to provide for the matters relating to nomination/election, term of office, qualifications, disqualification/cessation, for which express provi- B sions are already made in Articles 80, 81, 83, 84, I 01 and 102. Nor is it ., intended to provide for important privilege of freedom of speech or impor- tant immunity from court proceedings referred to in Clause (1) and (2) of Article 105. This Court in UP. Assembly (supra) referred to this aspect : c "There can be little doubt that the powers, privileges and immunities which are contemplated by clause (3) are incidental powers, privi- leges and immunities which every Legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of clause (3)." D [emphasis supplied]

By no stretch of imagination, the power to expel a member can be considered as an 'incidental' matter. If such a power was to be given, it would have been specifically mentioned. E

35. The appropriate course in case of allegation of corruption against a Member of Parliament, is to prosecute the member in accordance with law (The immunity under Article 105(2) may not be available, as the decision in P. V.Narasimha Rao v. State, [1998] 4 SCC 626 recognizes immunity to a ' F member who is a bribe taker only where the 'bribe' is taken in respect of a 'vote' given by him in Parliament and not otherwise). Such cases can be fast tracked. Pending such criminal proceedings, the member can be suspended

... temporarily, if necessary, so as to prevent him from participating in the deliberations of the Houses. On being tried, if the member is convicted, he becomes disqualified for being or continuing as a Member under Article G 102(l)(e). Ifhe is acquitted, he is entitled to continue as a member. Though it may sound cumbersome, that apparently is what the Constitution intends . ..,j

36. I am, therefore, of the considered view that there is no power of expulsion in the Parliament, either inherent or traceable to Article 105(3). H

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

A Expulsion by the House will be possible only if Article 102 or Article 101 is suitably amended or ifa law is made under Article 102(l)(e) enabling the House to expel a member found unworthy or unfit of continuing as a member. The first question is thus answered in the affinnative. Therefore the second question does not survive for consideration.

B 37. In view of the above, I hold that the action of the two Houses of Parliament, expelling the petitioners is violative of Articles 101 to 103 of the Constitution and therefore invalid. Petitioners, therefore, continue to Le Members of Parliament (subject· to any action for cessation of their membership). Petitions disposed of accordingly. c ORDER

In view of the majority opinion, all the Petitions and Transferred Cases are dismissed.

D GN. Writ petitions and transferred cases dismissed.