Appeal: Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha and Ors.
Writ Petition (C) 1 of 2006
With
Transferred Case Nos. 82 to 90 of 2006 and Writ Petition (C) No. 129 of 2006

Apeal: Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha and Ors.
Writ Petition (C) 1 of 2006
With
Transferred Case Nos. 82 to 90 of 2006 and Writ Petition (C) No. 129 of 2006

Judges: Y.K. Sabharwal, CJI,
K.G. Balakrishnan & D.K. Jain, JJ.

Date of Judgment: Oct 01, 2007

CONSTITUTION
Constitution of India, 1950
Articles 14, 20, 21, 83, 105, 106, 122 and 194 – Indian Parliament – Parliamentary powers and privileges – Scope of Article 105 – Whether a member of the Parliament could be expelled – Whether such expulsion violates the constitutional right guaranteed under Articles 83 and 106 – Whether the power of expulsion is inconsistent with Articles 101 and 102 – Allegations against some members of Lok Sabha and Rajya Sabha for demanding and accepting money for raising questions in Parliament – TV Channel telecasting a programme depicting the said MPs accepting money – Presiding Officers of each House instituting inquiries through separate committees – Concerned members afforded opportunity by the respective Committee – Both Committees concluding that the guilt of the members had been established and accordingly recommending strict action – After considering the Reports of the Committees both Houses passing resolutions expelling the members – Expelled members filing writs in the Supreme Court questioning the power of the Parliament to expel them. Dismissing the writs held (by a four to one majority) that the Parliament had the power to expel its members. The power of expulsion does not violate the right of constituency or any other democratic principles. Such expulsion does not violate the constitutional requirements of Articles 83 and 106. The power to expel members is not inconsistent with Articles 101 and 102. Power of expulsion does not come in conflict with any of the constitutional provisions. There is no reason to deny the Parliament and the Legislatures the power of expulsion arising out of remedial power of contempt. Therefore power of expulsion can be claimed as one of the privileges inherited from the House of Commons. On facts held that expulsion of the petitioner members for their acts of misconduct did not call for any interference and there was no violation of any of their fundamental rights.
Per Y.K. Sabharwal CJI, K.G. Balakrishnan and D.K. Jain :
It is not possible to accept the submission that the termination of membership can be effected only in the manner laid down in Articles 101 and 102. While these articles do speak of qualifications for and continuation of membership, in our view they operate independently of Article 105(3). Article 105(3) is also a constitutional provision and it demands equal weight as any other provision, and neither being ‘subject to the provisions of the constitution’, it is impossible to accord to one superiority over the other. We cannot accept the submission that the provisions in Articles 101 or 102 restrict in any way the scope of 194(3). There is no reason for them to do so. Though disqualification and expulsion both result in the vacancy of a seat, there is no necessity to read one in a way that restricts the scope of the other. The expulsion on being found unfit for functioning within the House in no way affects the qualifications that a member must fulfill, and there is no reason for the latter to affect expulsion. Both of the provisions can operate quite harmoniously. We fail to see any inconsistency between the two. Nor do we find any reason to support the claim that provisions under Articles 101 and 102 are exhaustive and for that reason, Article 105(3) be read as not to include the power of expulsion. Further, death as a cause for vacancy of a seat is also not mentioned in the relevant provisions. Similarly, it is not necessary for expulsion to be mentioned, if there exists another constitutional provision that provides for such a power. It is obvious that upon expulsion, the seat of the member is rendered vacant and so no specific recognition of this provision is necessary within the provision relating to vacancy. Thus, the power of expulsion cannot be held to be inconsistent with these provisions. (Para 143)
It was further argued by the Petitioners, that provisions in the constitution relating to salary and the term for which they serve in the House are constitutional rights of the members and the power of expulsion, by terminating their membership violates these constitutional rights. (Para 149)
The relevant provisions in the constitution are Article 106 on the subject of salaries and Article 83(2) in relation to the duration of the Houses of Parliament. (Para 150)
In the present case, where there is a lawful expulsion, the members cannot claim that the provisions relating to salaries and duration of the House create such rights for the members that would have supremacy over the power of expulsion of the House. (Para 153)
Expulsion is only an additional cause for the shortening of a term of a member. (Para 155)
Further, as far as the provision relating to the salary of the member is concerned, it is quite absurd to claim that because the Constitution makes a provision for salaries, the power of the House to expel is negated since the result would be that the member would no longer be paid. Salaries are obviously dependent upon membership, and the continuation of membership is an independent matter altogether. The termination of membership can occur for a variety of reasons and this is at no point controlled by the fact that salaries are required to be paid to a member. (Para 156)
Thus, in our view, the above provisions do not negate the power of expulsion of the House, and there is no inconsistency between the House’s power of expulsion and the said provisions. (Para 157)
While it is true that the right to vote and be represented is integral to our democratic process, it must be remembered that it is not an absolute right. There are certain limitations to the right to vote and be represented. For example, a citizen cannot claim the right to vote and be represented by a person who is disqualified by law or the right to be represented by a candidate he votes for, even if he fails to win the election. Similarly, expulsion is another such provision. Expulsion is related to the conduct of the member that lowers the dignity of the House, which may not have been necessarily known at the time of election. It is not a capricious exercise of the House, but an action to protect its dignity before the people of the country. This is also an integral aspect of our democratic set-up. In our view, the power of expulsion is not contrary to a democratic process. It is rather part of the guarantee of a democratic process. Further, expulsion is not a decision by a single person. It is a decision taken by the representatives of the rest of the country. Finally, the power of expulsion does not bar a member from standing for re-election or the constituency from electing that member once again. (Para 160)
Thus, we hold that the power of expulsion does not violate the right of the constituency or any other democratic principles. (Para 161)
It is to be remembered that 105(3) is itself a constitutional provision and it is necessary that we must construe the provisions in such a way that a conflict with other provisions is avoided. We are of the view that where there is a specific constitutional provision as may have the effect of curtailing these fundamental rights if found applicable, there is no need for a law to be passed in terms of Article 19(6). For example, Article 102 relating to disqualifications provides that members who are of unsound mind or who are undischarged insolvents as declared by competent courts are disqualified. These grounds are not mentioned in the Representation of Peoples Act, 1951. Though this provision would have the effect of curtailing the rights under Article 19(1)(g), we doubt that it can ever be contended that a specific law made in public interest is required. Similarly, if Article 105(3) provides for the power of expulsion (though not so expressly mentioned), it cannot be said that a specific law in public interest is required. Simply because the Parliament is given the power to make law on this subject is no reason to say that a law has to be mandatorily passed, when the Constitution itself provides that all the powers of the House of Commons vest until such a law is made. Thus, we find that Article 19(1)(g) cannot prevent the reading of power of expulsion under Article 105(3). (Para 164)
Finally, as far as Article 21 is concerned, it was submitted that the ‘procedure established by law’ includes the rules relating to the Privileges Committee, etc., which were not followed and thus the right was violated. In our view, this does not prevent the reading of the power to expel in Article 105(3). It is not possible to say that because a ‘procedure established by law’ is required, it will prevent the power of expulsion altogether and that every act of expulsion will be contrary to the procedure established by law. Whether such a claim is maintainable upon specific facts of each case is something that will have to be considered when the question of judicial review is taken up. At this stage, however, a blanket ban on the power of expulsion based on Article 21 cannot be read in the Constitutional provisions. This is an issue that may have a bearing on the legality of the order. But, it cannot negate the power of expulsion. (Para 165)
In the light of the above discussion, we hold that the power of expulsion does not come into conflict with any of the constitutional provisions and thus cannot be negated on this basis. (Para 166)
Articles 168 and 169 provide for the constitution of the State Legislatures, with Parliament being vested with power to substantially alter the very composition of the State Legislatures by providing procedure following which bicameral Legislature of a State may be altered to a unicameral one, or vice versa. Article 170 and Article 171 deal with the composition of the Legislative Assemblies and the Legislative Councils respectively in the States. The maximum and the minimum number of members are prescribed by law and the ratio between the population of each constituency within the State with the number of seats allotted to it being also regulated by constitutional provisions, even the matter of re-adjustment of the territorial constituencies being controlled by such authority (Delimitation Commission) and in such manner as Parliament is to determine by law. The normal tenure of five years for a State Legislative Assembly is prescribed by Article 172. The duration of the State Assembly and the mode and manner of its dissolution are matters controlled by constitutional prescriptions. Articles 173 and 191 prescribe the qualifications and disqualifications for the membership of the State Legislature; Article 174 creates a constitutional obligation on the State Legislatures to meet at least once within a space of six months, the power to summon the State legislature having been given not to the House(s) but to the Governor. (Para 184)
Articles 327 and 328 empower the Parliament and the State Legislatures, in that order, to make laws in connection with the preparation of the electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of the State Legislatures. Article 333 to 334 provide for the reservation of seats for the Scheduled Castes and other communities in the State Legislatures again dealing with the subject of composition and the character of the membership thereof. (Para 185)
Article 329 does bar the jurisdiction of courts but only in matters of delimitation of constituencies or allotment of seats thereto and reserves the jurisdiction to deal with election disputes in favour of the authority prescribed by law, which incidentally is High Court as per the Representation of People Act, 1951. (Para 186)
It must, therefore, be held as beyond the pale of all doubts that neither Parliament nor State Legislatures in India can assert power to provide for or regulate their own constitution in the manner claimed by the House of Commons in United Kingdom. Having regard to the elaborate provision made elsewhere in the Constitution, this power cannot be claimed even, or least of all, through the channel of Articles 105 (3) or 294 (3). (Para 187)
We are unable to accept the contentions of the petitioners that the source of Power of Expulsion in England was the privilege of the House of Commons to regulate its own constitution or that the source of the power is single and indivisible and cannot be traced to some other source like independent or inherent penal power. (Para
231)
The right to enforce its privileges either by imposition of fine or by commitment to prison (both of which punishments can be awarded against the members of the House as well as outsiders) or by expulsion (possible in case of members only) is not a part of any other privilege but is by itself a separate and independent power or privilege. To enforce a privilege against a member by expelling him for breach of such privilege is not a way of expressing the power of the House of Commons to constitute itself. (Para 232)
Though expulsion can be, and may have been, resorted to by the House of Commons with a view to preserve or change its constitution, it would not exclude or impinge upon its independent privilege to punish a member for breach of privilege or for contempt by expelling him from the House. Expulsion concerns the House itself as the punishment of expulsion cannot be inflicted on a person who is not a member of the House. As a necessary and direct consequence, the composition of the House may be affected by the expulsion of a member. That would not, however, necessarily mean that the power of expulsion is exercised only with a view, or for the purpose of regulating the composition of the House. One of the three ways of exercising the privilege of the Commons to constitute itself as mentioned by May (in 20th Edition) can undoubtedly, in certain circumstances, be expressed by expelling a member of the House. But this does not mean that the existence and exercise of the privilege of expelling a member by way of punishment for misconduct or contempt of the House stands ruled out. The power of self composition of the House of Commons is materially distinct and meant for purposes other than those for which the House has the competence to resort to expulsion of its members for acts of high misdemeanour. The existence of the former power on which expulsion can be ordered by the House of Commons cannot by itself exclude or abrogate the independent power of the House to punish a member by expelling him, a punishment which cannot be inflicted on a non-member. (Para 233)
Expulsion being regarded as ‘justly as an example of the privilege of the House of Commons to regulate its own Constitution’ by May does not mean that the power to expel is solely derived from the privilege to regulate its own Constitution or that without the privilege of providing for its own Constitution, the House could not expel a member. The latter view would be contrary to the established position that the House has a right as part of its privilege to have complete control over its proceedings including the right to punish a member by expulsion who by his conduct interferes with the proper conduct of Parliament business. (Para 234)
Although the examples of expulsion in this century by the House of Commons are few, the relevant time for our purposes is the date of the commencement of the Constitution. The last two cases occurring in 1947 and 1954 clearly establish that the power to expel was in fact a privilege of the House of Commons at the commencement of our Constitution. Thus, from this perspective, the power of expulsion can be read within Article 105(3). We have already held that this power is not inconsistent with other provisions of the Constitution. (Para 274)
In our considered view, the opinion expressed by the Members of Parliament in May 1981, or for that matter in December 1978, as indeed in June 1951 merely represent their respective understanding of the law of privileges. These views are not law on the subject by the Parliament in exercise of its enabling power under the second part of Article 105(3). It cannot be said, given the case of expulsion of Mudgal in 1951, that the parliamentary practice in India is wholly against resort to the sanction of expulsion for breach of privileges under Article 105. (Para 313)
On the question whether power of expulsion exists or not, divergent views have been expressed by learned members in the Parliament. These views deserve to be respected but on the question whether there exists power of expulsion is a matter of interpretation of the constitutional provisions, in particular Article 105(3) and Article 194(3) on which the final arbiter is this Court and not the Parliament. (Para 314)
We are of the considered view that the impugned resolutions of Lok Sabha and Rajya Sabha cannot be questioned before us on the plea of proportionality. We are not sitting in appeal over the decision of the Legislative chambers with regard to the extent of punishment that deserved to be meted out in cases of this nature. That is a matter which must be left to the prerogative and sole discretion of the legislative body. All the more so because it is the latter which is the best Judge in exercise of its jurisdiction the object of which is self-protection. So long as the orders of expulsion are not illegal or unconstitutional, we are not concerned with the consequences for the petitioners on account of these expulsions. (Para 440)
In these proceedings, this Court cannot not allow the truthfulness or correctness of the material to be questioned or permit the petitioners to go into the adequacy of the material or substitute its own opinion for that of the Legislature. Assuming some material on which the action is taken is found to be irrelevant, this Court shall not interfere so long as there is some relevant material sustaining the action. We find this material was available in the form of raw footage of video recordings, the nature of contents whereof are reflected in the Inquiry reports and on which subject the petitioners have not raised any issue of fact. (Para 441)
On perusal of the Inquiry reports, we find that there is no violation of any of the fundamental rights in general and Articles 14, 20 or 21 in particular. Proper opportunity to explain and defend having been given to each of the petitioners, the procedure adopted by the two Houses of Parliament cannot be held to be suffering from any illegality, irrationality, unconstitutionality, violation of rules of natural justice or perversity. It cannot be held that the petitioners were not given a fair deal. (Para 442)
Per C.K. Thakker J (Agreeing):
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. (Para 599)
I am also supported in taking this view from the discussion the Constituent Assembly had and the final decision taken. (Para 600)
When the provisions relating to powers, privileges and immunities of Parliament and State Legislatures were considered by the Constituent Assembly, conflicting views were expressed by the Hon’ble Members. One 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. (Para 601)
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 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 105 or 194 of the Constitution. (Para 607
R.V. Raveendran (Dissenting) :
The Constitution-makers have made detailed and specific provisions 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 manner 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 by the express provisions in the Constitution, can fall under ‘other powers, privileges and immunities’ of the House mentioned in Article 105(3). (Para 698)
We have also noticed above that the Constitution makes express provisions for election/appointment and removal/cessation of service of the Executive (President and Vice-President), Judiciary (Judges of the Supreme Court and High Court) and all other constitutional functionaries (Attorney 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. (Para 699)
In view of the express provisions in the Constitution, as to when a person 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. (Para 700)
Clause (3) of Article 105 opens with the words ‘in other respects’. The provision for ‘powers, privileges and immunities’ in clause (3) occurs after referring to the main privilege of freedom of speech in Parliament, in clause (1) of Article 105, and the main immunity against court proceedings in clause (2) of Article 105. 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 provisions are already made in Articles 80, 81, 83, 84, 101 and 102. Nor is it intended to provide for important privilege of freedom of speech or important immunity from court proceedings referred to in Clause (1) and (2) of Article 105. This Court in U.P. Assembly referred to this aspect :
‘There can be little doubt that the powers, privileges and immunities which are contemplated by clause (3) are incidental powers, privileges and immunities which every Legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of clause (3).’ [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. (Para 701)
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 (supra) recognizes immunity to a 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 102(1)(e). If he is acquitted, he is entitled to continue as a member. Though it may sound cumbersome, that apparently is what the Constitution intends. (Para 702)
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). Expulsion by the House will be possible only if Article 102 or Article 101 is suitably amended or if a law is made under Article 102(1)(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 affirmative. Therefore the second question does not survive for consideration. (Para 703)
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 be Members of Parliament (subject to any action for cessation of their membership). Petitions and transferred cases disposed of accordingly. (Para 704)
Constitution of India, 1950
Articles 14, 20, 21, 83, 105, 106, 122 and 194 – Indian Parliament – Parliamentary powers and privileges – Power of the Parliament to expel a member from the House – Judicial review in such matters – If permissible – Allegations against some members of Lok Sabha and Rajya Sabha for demanding and accepting money for raising questions in Parliament – TV Channel telecasting a programme depicting the said MPs accepting money – Presiding Officers of each House instituting inquiries through separate committees – Concerned members afforded opportunity by the respective Committee – Both Committees concluding that the guilt of the members had been established and accordingly recommending strict action – After considering the Reports of the Committees both Houses passing resolutions expelling the members – Expelled members filing writs in the Supreme Court questioning the Power of the Parliament to expel them – Union of India taking the stand that the matter being within the exclusive cognizance of the Parliament, it is not open to the court to examine the justiciability of exercise of Parliamentary privilege. While holding that the Parliament has the power to expel its members, held that such power is subject to the judicial review. There is no basis to claim bar of exclusive cognizance or absolute immunity to the Parliamentary proceedings. Proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial review but the court will not interfere so long as there are some relevant material sustaining the action.
Per Y.K. Sabharwal CJI, K.G. Balakrishnan and D.K. Jain :
In the light of law laid down in the two cases of Pandit Sharma and in the case of UP Assembly, we hold that the broad contention on behalf of the Union of India that the exercise of Parliamentary privileges cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct. In the case of Pandit Sharma the manner of exercise of the privilege claimed by the Bihar Legislative Assembly was tested against the ‘procedure established by law’ and thus on the touchstone of Article 21. It is a different matter that the requirements of Article 21, as at the time understood in its restrictive meaning, were found satisfied. The point to be noted here is that Article 21 was found applicable and the procedure of the legislature was tested on its anvil. This view was followed in the case of UP Assembly which added the enforceability of Article 20 to the fray. (Para 348)
The enforceability of Article 21 in relation to the manner of exercise of Parliamentary privilege, as affirmed in the cases of Pandit Sharma and UP Assembly has to be understood in light of the expanded scope of the said fundamental right interpreted as above. (Para 350)
It is to be remembered that the plenitude of powers possessed by the Parliament under the written Constitution is subject to legislative competence and restrictions of fundamental rights and that in case a member’s personal liberty was threatened by imprisonment of committal in execution of Parliamentary privilege, Article 21 would be attracted. (Para 351)
If it were so, we are unable to fathom any reason why the general proposition that fundamental rights cannot be invoked in matters concerning Parliamentary privileges should be accepted. Further, there is no reason why the member, or indeed a non-member, should not be entitled to the protection of Article 21, or for that matter Article 20, in case the exercise of Parliamentary privilege contemplates a sanction other than that of committal. (Para 352)
In our considered view, the principle that is to be taken note of in the aforementioned series of cases is that notwithstanding the existence of finality clauses, this court exercised its jurisdiction of judicial review whenever and wherever breach of fundamental rights was alleged. President of India while determining the question of age of a Judge of a High Court under Article 217 (3), or the President of India (or the Governor, as the case may be) while taking a decision under Article 311 (3) to dispense with the ordinarily mandatory inquiry before dismissal or removal of a civil servant, or for that matter the Speaker (or the Chairman, as the case may be) deciding the question of disqualification under Para 6 of the Tenth Schedule may be acting as authorities entrusted with such jurisdiction under the constitutional provisions. Yet, the manner in which they exercised the said jurisdiction is not wholly beyond the judicial scrutiny. In the case of Speaker exercising jurisdiction under the Tenth Schedule, the proceedings before him are declared by Para 6 (2) of the Tenth Schedule to be proceedings in Parliament within the meaning of Article 122. Yet, the said jurisdiction was not accepted as non-justiciable. In this view, we are unable to subscribe to the proposition that there is absolute immunity available to the Parliamentary proceedings relating to Article 105(3). It is a different matter as to what parameters, if any, should regulate or control the judicial scrutiny of such proceedings. (Para 372)
Article 122(1) thus must be found to contemplate the twin test of legality and constitutionality for any proceedings within the four walls of Parliament. The fact that the case of UP Assembly dealt with the exercise of the power of the House beyond its four-walls does not affect this view which explicitly interpreted a constitutional provision dealing specifically with the extent of judicial review of the internal proceedings of the legislative body. In this view, Article 122(1) displaces the English doctrine of exclusive cognizance of internal proceedings of the House rendering irrelevant the case law that emanated from courts in that jurisdiction. Any attempt to read a limitation into Article 122 so as to restrict the court’s jurisdiction to examination of the Parliament’s procedure in case of unconstitutionality, as opposed to illegality would amount to doing violence to the constitutional text. Applying the principle of ‘expressio unius est exclusio alterius’ (whatever has not been included has by implication been excluded), it is plain and clear that prohibition against examination on the touchstone of ‘irregularity of procedure’ does not make taboo judicial review on findings of illegality or unconstitutionality. (Para 382)
We are of the view that the manner of exercise of the power or privilege by Parliament is immune from judicial scrutiny only to the extent indicated in Article 122(1), that is to say the Court will decline to interfere if the grievance brought before it is restricted to allegations of ‘irregularity of procedure’. But in case gross illegality or violation of constitutional provisions is shown, the judicial review will not be inhibited in any manner by Article 122, or for that matter by Article 105. If one was to accept what was alleged while rescinding the resolution of expulsion by the 7th Lok Sabha with conclusion that it was ‘inconsistent with and violative of the well-accepted principles of the law of Parliamentary privilege and the basic safeguards assured to all enshrined in the Constitution’, it would be partisan action in the name of exercise of privilege. We are not going into this issue but citing the incident as an illustration. (Para 394)
Having concluded that this Court has the jurisdiction to examine the procedure adopted to find if it is vitiated by any illegality or unconstitutionality, we must now examine the need for circumspection in judicial review of such matters as concern the powers and privileges of such august body as the Parliament. (Para 395)
We may summarize the principles that can be culled out from the above discussion. They are:-
a. Parliament is a co-ordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny;
b. Constitutional system of government abhors absolutism and it being the cardinal principle of our Constitution that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution, mere co-ordinate constitutional status, or even the status of an exalted constitutional functionaries, does not disentitle this Court from exercising its jurisdiction of judicial review of action which part-take the character of judicial or quasi-judicial decision;
c. The expediency and necessity of exercise of power or privilege by the legislature are for the determination of the legislative authority and not for determination by the courts;
d. The judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature;
e. Having regard to the importance of the functions discharged by the legislature under the Constitution and the majesty and grandeur of its task, there would always be an initial presumption that the powers, privileges etc have been regularly and reasonably exercised, not violating the law or the Constitutional provisions, this presumption being a rebuttable one;
f. The fact that Parliament is an august body of co-ordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power;
g. While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to exercise thereof, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested, and the Court would confine itself to the acknowledged parameters of judicial review and within the judicially discoverable and manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error;
h. The Judicature is not prevented from scrutinizing the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens;
i. The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct;
j. If a citizen, whether a non-member or a member of the Legislature, complains that his fundamental rights under Article 20 or 21 had been contravened, it is the duty of this Court to examine the merits of the said contention, especially when the impugned action entails civil consequences;
k. There is no basis to claim of bar of exclusive cognizance or absolute immunity to the Parliamentary proceedings in Article 105(3) of the Constitution;
l. The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other Constitutional provisions, for example Article 122 or 212;
m. Articles 122 (1) and Article 212 (1) displace the broad doctrine of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governance provided by Constitution of India
n. Article 122 (1) and Article 212 (1) prohibit the validity of any proceedings in legislature from being called in question in a court merely on the ground of irregularity of procedure;
o. The truth or correctness of the material will not be questioned by the court nor will it go into the adequacy of the material or substitute its opinion for that of the legislature;
p. Ordinarily, the legislature, as a body, cannot be accused of having acted for an extraneous purpose or being actuated by caprice or mala fide intention, and the court will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters, but if in a given case, the allegations to such effect are made, the Court may examine the validity of the said contention, the onus on the person alleging being extremely heavy
q. The rules which the legislature has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution;
r. Mere availability of the Rules of Procedure and Conduct of Business, as made by the legislature in exercise of enabling powers under the Constitution, is never a guarantee that they have been duly followed;
s. The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny;
t. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action;
u. An ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision but not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity. (Para 419)
Per C.K. Thakker J (Agreeing):
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. (Para 623)
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. (Para 625)
I have already held that the decisions taken, orders made, findings recorded or conclusions arrived at by Parliament/State Legislature are subject to judicial review, albeit on limited grounds and parameters. If, therefore, there is gross abuse of power by Parliament/ State Legislature, this Court will not hesitate in discharging its duty by quashing the order or setting aside unreasonable action. (Para 665)

1. Shrikant v. Vasantrao [JT 2006 (1) SC 394] (Para 146)
2. Rameshwar Prasad (VI) v. Union of India [JT 2006 (1) SC 457] (Para 21)
3. Kuldip Nayar v. Union of India [JT 2006 (8) SC 1] (Para 21)
4. Pratap Singh v. State of Jharkhand, [JT 2005 (2) SC 271] (Para 21)
5. Ajit Kumar Nag v. Indian Oil Corporation [JT 2005 (8) SC 425] (Para 663)
6. People’s Union for Civil Liberties (PUCL) v. Union of India [JT 2003 (2) SC 528] (Para 21)
7. Union of India v. Assn. for Democratic Reforms [JT 2002 (4) SC 501] (Para 21)
8. Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter) [JT 2002 (8) SC 389] (Para 21)
9. P.V. Narasimha Rao v. State (CBI/SPE) [JT 1998 (3) SC 318] (Para 326)
10. Ashok Kumar Gupta v. State of U.P. [JT 1997 (4) SC 251] (Para 349)
11. S.R. Bommai v. Union of India [JT 1994 (2) SC 215] (Para 417)
12. I. Manilal Singh v. H . Borobabu Singh (Dr) [JT 1993 (1) SC 348] (Para 21)
13. New Brunswick Broadcasting Corporation v. Nova Scotia Speaker [1993 (1) SCR 391] (Para 344)
14. Kihoto Hollohan v. Zachillhu [JT 1992 (1) SC 600] (Para 369)
15. Smt. S. Ramaswami v. Union of India [1992 Suppl. (1) SCR 108] (Para 380)
16. Sub-Committee on Judicial Accountability v. Union of India [JT 1991 (6) SC 184] (Para 21)
17. K. Anbazhagan v. TN Legislative Assembly [AIR 1988 Mad. 275] (Para 144)
18. Sambamurthy v. State of A.P. [JT 1987 (1) SC 20] (Para 621)
19. L. Chandra Kumar v. Union of India [(1987) 1 SCR 435] (Para 621)
20. Mary Roy v. State of Kerala [1986 (1) SCR 371] (Para 682)
21. Union of India v. Tulsiram Patel [1985 (Suppl.2) SCR 131] (Para 365)
22. K. Nagaraj v. State of A.P. [1985 (2) SCR 579] (Para 403)
23. T. Venkata Reddy v. State of A.P. [1985 (3) SCR 509] (Para 403)
24. Bachan Singh v. State of Punjab [1983 (1) SCR 145] (Para 396)
25. Minerva Mills Ltd. v. Union of India [1981 (1) SCR 206] (Para 21)
26. State of Karnataka v. Union of India [1978 (2) SCR 1] (Para 60)
27. Maneka Gandhi v. Union of India [1978 (2) SCR 621] (Para 636)
28. Hardwari Lal [ILR (1977) 2 PandH 269 (FB)] (Paras 144, 256)
29. Indira Nehru Gandhi v. Raj Narain [1976 (2) SCR 347] (Para 21)
30. Ahmedabad St. Xavier’s College Society and Anr. v. State of Gujarat and Anr. [(1975) 1 SCR 173] (Para 626)
31. Kesavananda Bharati v. State of Kerala [1973 (Supp.) SCR 1] (Para 21)
32. Union of India v. Jyoti Prakash Mitter [1971 (3) SCR 483] (Para 363)
33. Tej Kiran Jain v. N. Sanjiva Reddy [1971 (1) SCR 612] (Para 375)
34. Rustom Cavasjee Cooper v. Union of India [1970 (3) SCR 530] (Para 349)
35. Chhabildas Mehta v. The Legislative Assembly, Gujarat State [1970 Guj.LR 729] (Para 684)
36. Rohtas Industries Ltd. v. S.D. Agarwal [1969 (3) SCR 308] (Para 415)
37. Yashwant Rao Meghawale v. Madhya Pradesh Legislative Assembly [AIR 1967 MP 95] (Para 144)
38. K. Anandan Nambiar v. Chief Secretary, State of Madras [AIR 1966 SC 657] (Para 152)
39. Barium Chemicals Ltd. v. Company Law Board [1966 Suppl. SCR 311] (Para 414)
40. Powers, Privileges and Immunities of State Legislatures, Article 143, Constitution of India, Re [(1965) 1 SCR 413] (Para 457)
41. Special Reference No. 1 of 1964 [(1965) 1 SCR 413] (Para 22)
42. Automobile Transport Ltd. v. State of Rajasthan [1963 (1) SCR 491] (Para 687)
43. M.S.M. Sharma v. Shree Krishna Sinha [(1961) 1 SCR 96] (Para 54)
44. Atiabari Tea Co. Ltd. v. State of Assam [1961 (1) SCR 809] (Para 687)
45. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee [(1961) 3 SCR 486] (Para 402)
46. M.S.M. Sharma v. Sri Krishna Sinha [1959 Supp (1) SCR 806] (Para 51)
47. Express Newspaper (P) Ltd. v. Union of India [1959 SCR 12] (Para 369)
48. M.P.V. Sundaramier and Co. v. State of Andhra Pradesh [1958 SCR 1422] (Para 687)
49. Raj Narain v. Atmaram Govind and Anr. [AIR 1954 All 319] (Para 583)
50. In re Article 143, Constitution of India and Delhi Laws Act [AIR 1951 SC 332] (Para 681)
51. A.K. Gopalan v. State of Madras [1950 SCR 88] (Para 349)
52. Jagjit Singh v. State of Haryana and Ors. [WP (C) No. 287] (Para 434)
Foreign Cases Referred:
1. House of Commons v. Vaid [(2005) 1 SCR 667] (Para 346)
2. Harvey v. New Brunswick [1996 (2) SCR 876] (Para 345)
3. Richard William Prebble v. Television New Zealand Ltd. [1994 (S) WLR 970] (Para 49)
4. Speaker of the House of Assembly v. Canadian Broadcasting Corporation [(1993) 1 SCR 319] (Para 488)
5. R. v. Her Majesty’s Treasury, ex parte Smedley [1985 QB 657] (Para 619)
6. Armstrong v. Budd [(1969) 71 SR 386 (NSW)] (Para 144)
7. Powell v. McCormack [395 US 486 (1969) : 23 L Ed 2nd 491] (Para 471)
8. Julion Bond v. James Sloppy Floyd, [385 US 116 (1966) : 17 L Ed 2nd 235] (Para 470)
9. Marshall v. Gordon [243 U.S. 521, 541 (1917)] (Para 252)
10. Australian Boot Trade Employees Federation v. Whybrow and Co. [(1910) 10 CLR 266] (Para 369)
11. Hartnett v. Crick [(1908) AC 470] (Para 286)
12. Fielding v. Thomas [1896 AC 600] (Para 243)
13. Chapman, Re [166 US 661 (1891) : 41 L Ed 2nd 1154] (Para 469)
14. Barton v. Taylor [(1886) 11 App Cases 197] (Para 249)
15. Bradlaugh v. Gosset [1884 12 QBD 271] (Para 48)
16. Doyle v. Falconer [1865-67) LR 1 PC 328] (Para 249)
17. Stockdale v. Hansard [(1839) 9 Ad and E 1 : 112 ER 1112 (QB)] (Para 489)
18. Beaumont v. Barrett [(1836) 1 MOO PC 80] (Para 546)
19. Providence Bank v. Alphens Billings [29 US 504 (1830) : 7 Law Ed 939] (Para 664)
20. Clarke v. Bradlaugh [1881 (8) QBD 63] (Para 682)
21. Dill v. Murphy [1864 (15) ER 784] (Para 242)
22. Fenton v. Hampton [(1858) 11 MOO PCC 347] (Para 249)
23. Keilley v. Carson [(1842) 4 Moo. PC 63] (Para 249)
24. Ashby v. White [L.J. (1701-05), 714] (Para 84)
25. R. v. Paty [(1704) 92 E.R. 232] (Para 319)
26. Earl of Shaftesbury [86 E.R. 792] (Para 319)
27. Case of Murray [95 E.R. 629] (Para 319)
28. Case of Brass Crosby (95 E.R. 1005] (Para 319)
29. Case of Sir Francis Burdett [104 E.R. 501] (Para 319)
30. Howard v. Sir William Gosset [116 E.R. 139] (Para 319)
31. H. Snowden Marshall v. Robert B. Gordon [243 US 521 (1917)] (Para 472)
32. United States v. Daniel Brewster [408 US 501 : (1972) 33 L Ed 2nd 507] (Para 474)

Y.K. Sabharwal, CJI.
1. Factual Backgrounds The interpretation of Article 105 of Constitution of India is in issue in these matters. The question is whether in exercise of the powers, privileges and immunities as contained in Article 105, are the Houses of Parliament competent to expel their respective Members from membership of the House. If such a power exists, is it subject to judicial review and if so, the scope of such judicial review.
2. The unfortunate background in which the aforesaid questions have arisen is the allegation that the Members of Parliament (MPs) indulged in unethical and corrupt practices of taking monetary consideration in relation to their functions as MPs.
3. A private channel had telecast a programme on 12th December, 2005 depicting 10 MPs of House of People (Lok Sabha) and one of Council of States (Rajya Sabha) accepting money, directly or through middleman, as consideration for raising certain questions in the House or for otherwise espousing certain causes for those offering the lucre. This led to extensive publicity in media. The Presiding Officers of each Houses of Parliament instituted inquiries through separate Committees. Another private channel telecast a programme on 19th December, 2005 alleging improper conduct of another MP of Rajya Sabha in relation to the implementation of Member of Parliament Local Area Development Scheme (‘MPLAD’ Scheme for short). This incident was also referred to a Committee.
4. The Report of the inquiry concluded, inter alia, that the evidence against the 10 members of Lok Sabha was incriminate; the plea that the video footages were doctored/morphed/edited had no merit; there was no valid reason for the Committee to doubt the authenticity of the video footage; the allegations of acceptance of money by the said 10 members had been established which acts of acceptance of money had a direct connection with the work of Parliament and constituted such conduct on their part as was unbecoming of Members of Parliament and also unethical and calling for strict action. The majority report also recorded the view that in case of misconduct, or contempt, committed by its members, the House can impose punishment in the nature of admonition, reprimand, withdrawal from the House, suspension from service of House, imprisonment, and expulsion from the House. The majority Report recorded its deep distress over acceptance of money by MPs for raising questions in the House and found that it had eroded the credibility of Parliament as an institution and a pillar of democracy in this country and recommended expulsion of the 10 members from the membership of Lok Sabha finding that their continuance as Members of the House would be untenable. One member, however, recorded a note of dissent for the reasons that in his understanding of the procedure as established by law, no member could be expelled except for breach of privileges of the House and that the matter must, therefore, be dealt with according to the rules of the Privileges Committee.
5. On the Report of the Inquiry Committee being laid on the table of the House, a Motion was adopted by Lok Sabha resolving to expel the 10 members from the membership of Lok Sabha, accepting the finding as contained in the Report of the Committee that the conduct of the members was unethical and unbecoming of the Members of Parliament and their continuance as MPs is untenable. On the same day i.e. 23rd December, 2005, the Lok Sabha Secretariat issued the impugned notification notifying the expulsion of those MPs with effect from same date. In the Writ Petitions/Transfer Cases, the expelled MPs have challenged the constitutional validity of their respective expulsions.
6. Almost a similar process was undertaken by the Rajya Sabha in respect of its Member. The matter was referred to the Ethics Committee of the Rajya Sabha. As per the majority Report, the Committee found that the Member had accepted money for tabling question in Rajya Sabha and the plea taken by him in defence was untenable in the light of evidence before it. However, one Member while agreeing with other Members of the Committee as to the factual finding expressed opinion that in view, amongst others, of the divergent opinion regarding the law on the subject in judgments of different High Courts, to which confusion was added by the rules of procedure inasmuch as Rule 297(d) would not provide for expulsion as one of the punishments, there was a need for clarity to rule out any margin of error and thus there was a necessity to seek opinion of this Court under Article 143(1) of the Constitution.
7. The Report of the Ethics Committee was adopted by Rajya Sabha concurring with the recommendation of expulsion and on the same date i.e. 23rd December, 2005, a notification notifying expulsion of the Member from membership of Rajya Sabha with immediate effect was issued.
8. The case of petitioner in Writ Petition (C) No.129/2006 arises out of different, though similar set of circumstances. In this case, the telecast of the programme alleged improper conduct in implementation of MPLAD Scheme. The programme was telecast on 19th December, 2005. The Report of the Ethics Committee found that after viewing the unedited footage, the Committee was of the view that it was an open and shut case as Member had unabashedly and in a professional manner demanded commission for helping the so-called NGO to set up projects in his home state/district and to recommend works under MPLAD Scheme. The Committee came to the conclusion that the conduct of the Member amounts to violations of Code of Conduct for Members of Rajya Sabha and it is immaterial whether any money changed hands or not or whether any commission was actually paid or not. It found that the Member has not only committed gross misdemeanor but by his conduct he also impaired the dignity of the House and its Member and acted in a manner which is inconsistent with the standards that the House is entitled to expect of its Members. Since the conduct of the Member has brought the House and its Member into disrepute, the Committee expressed the view that the Member has forfeited his right to continue as Member and, therefore, recommended his expulsion from the membership of the House. The Rajya Sabha accepted the recommendations of the Ethics Committee and Motion agreeing with the recommendation was adopted on 21st March, 2006 thereby expelling the Member from the membership bringing to an end his membership. On the same date notification was issued by Rajya Sabha Secretariat.
9. The two Members of Rajya Sabha have also challenged the constitutional validity of their expulsions. Article 105 reads as under :
‘105. Powers, privileges, etc. of the Houses of Parliament and of the members and committees thereof.–(1) Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, voles or proceedings.
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act 1978.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.’
10. There is identical provision as contained in Article 194 relating to powers, privileges and immunities of State legislature. Article 194 reads as under :-
‘194. Powers, privileges, etc., of the House of Legislatures 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 the Legislature, there shall be freedom of speech in the Legislature of every Slate.
(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 26 of the Constitution (forty-fourth Amendment) Act, 1978.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.’
11. Article 105(3) underwent a change in terms of Section 15 of the Constitution (44th Amendment) Act, 1978. In Article 105(3), the words ‘shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees at the commencement of this Constitution’ were substituted by the words ‘shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (fourty-fourth Amendment) Act, 1978’. The similar changes were also effected in Article 194(3) of the Constitution. These amendments have no relevance for determining the interpretation of Article 105(3) since the amendments clearly seem to be only cosmetic for the purpose of omitting the reference of the House of Commons in these articles.
12. Before the amendment in 1978, clause (3) of Article 105 read as under :-
‘(3). In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution.’
Contentions
13. The petitioners submit that all the powers, privileges or immunities, as vested on the date of commencement of the Constitution of India, in the House of Commons of the Parliament of United Kingdom had not been inherited by the legislatures in India under Article 105(3) of the Constitution.
14. The main contention urged is that power and privilege of expulsion was exercised by the House of Commons as a facet of its power of self-composition and since such power of such self-composition has not been given by the Constitution to Indian legislature, it did not inherit the power to expel its members. The contention is that expulsion is necessarily punitive in nature rather than remedial and such power vested in House of Commons as a result of its power to punish for contempt in its capacity as a High Court of Parliament and since this Status was not accorded to Indian Legislature, the power to expel could not be claimed by the Houses of Parliament under Article 105(3). It is also their contention that power to expel cannot be asserted through Article 105(3) also for the reason that such an interpretation would come in conflict with other constitutional provisions. A grievance has also been made about denial of principles of natural justice in the inquiry proceedings and it is contended that there are gross and patent illegalities which are not protected from judicial review by Article 122 on plea of procedural irregularities. The contention of the petitioners further is that even the plenary powers of the legislature are controlled by the basic concepts of the Constitution and, therefore, it has to function within the circumscribed limits. The submission is that this Court is the final arbiter on the constitutional issues and the existence of judicial power in such behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court for protection of fundamental rights and for due adherence to the constitutional provisions and scheme in absence of which the power conferred on the judicial organ would be rendered meaningless. The contention also is that the extent and scope of power conferred on each branch of the State, limits on the exercise of such power under Constitution and any action of any branch that transgresses such limit is for the judiciary to determine as the final interpreter of the Constitution. Petitioners submit that the constitutional and legal protection accorded to the citizens would become illusory if it were left to the organ in question to determine the legality of its own action. They further submit that it is also a basic principle of rule of law permeating every provision of the Constitution, rather forming its very core and essence, that the exercise of power by the Executive or any other authority must not only be conditioned by the Constitution but also be in accordance with law in which context it is primarily the function of the judiciary alone to ensure that the law is observed and there is compliance with the requirement of the constitutional provisions which is performed through patent weapon used as power of judicial review.
15. On the plea that this Court has the jurisdiction to exercise the power of judicial review in a case of this nature where another coordinate organ of the State has asserted and claimed a power and privilege on the strength of a Constitutional provision seemingly also claiming ‘exclusive cognizance’, meaning immunity from judicial interference, the contentions of the petitioners can be summarized thus:-
(i) The power of judicial review is an incident of and flows from the concept that the fundamental and higher laws are the touchstone of the limits of the powers of the various organs of State which derive power and authority under the Constitution of which the judicial wing is the interpreter;
(ii) Unlike in England where Parliament is sovereign, in a federal State with a written Constitution like India is, the supremacy of the Constitution is fundamental to its existence, which supremacy is protected by the authority of the independent judicial body that acts as the interpreter thereof through the power of judicial review to which even the Legislature is amenable and cannot claim immunity wherefrom;
(iii) The legislative supremacy being subject to the Constitution, Parliament cannot determine for itself the nature, scope and effect of its powers which are, consequently, subject to the supervision and control of judicial organ;
(iv) The petitioners would also point out that unlike the Parliament of England, the status of Legislature in India has never been that of a superior court of record and that even privileges of Parliament are subject to limits which must necessarily be ascertainable and, therefore, subject to scrutiny by the Court, like any other right;
(v) The validity of any proceedings even inside a legislative chamber can be called in question before the Court when it suffers from illegality and unconstitutionality and there is no immunity available to Parliament from judicial review.
16. It is the petitioners’ contention that the Houses of Parliament had no power of expulsion of a sitting member. They plead that the petitioners could not be debarred from membership of the House by or under the impugned notifications pursuant to proceedings consequent upon the media reports inasmuch as substantive and adjectival law had been disregarded and the Constitutional inhibition placed on the exercise of power of debarment had been defeated. On the case that the Indian legislatures cannot claim the power of expulsion of their members, the contentions are stated thus:-
(i) The Legislature has no power to expel its member since the Parliament has not enacted any law which provides for expulsion of a member in a specified circumstance, in terms of enabling power to legislate on the subject as available in Article 105(3) of the Constitution;
(ii) The expulsions are illegal, arbitrary and unconstitutional, being violative of the provisions of Articles 83, 84 and 101 to 103, 105 and 190 to 193 of the Constitution;
(iii) There is no provision either in the Constitution of India or in the Rules of Procedure and Conduct of Business of the Houses of Parliament for expulsion of a member by adoption of a motion and thus the impugned acts were beyond the jurisdiction of Parliament;
(iv) The expulsion of the petitioners from the Legislature through a motion adopted by simple majority was a dangerous precedent which would give dictatorial powers to the ruling majority in the Legislatures in future and thus be prone to further abuse;
(v) The Constitutional law governing the democracies the world over, even in other jurisdictions governed by written Constitutions, would not allow the power of exclusion of the elected members unto the legislative chamber.
17. Claiming that they were innocent and had been falsely trapped, by the persons behind the so-called sting operation who had acted in a manner actuated by mala fides and greedy intent for cheap publicity and wrongful gains bringing the petitioners into disrepute, the Petitioners question the procedure adopted by the two Houses of Parliament alleging that it suffered from gross illegality (as against procedural irregularity) calling for judicial interference. In this respect, the petitioners submit that the enquiries conducted by the two Houses were unduly hurried; were neither fair nor impartial and have resulted in gross violation of rules of natural justice which were required to be followed inasmuch as the action that was contemplated would entail civil consequences; the Petitioners had not even been treated as ordinary offenders of law and deprived of basic opportunity of defending themselves through legal counsel and opportunity to explain; the evidence in the form of videography etc. had been relied upon without opportunity being given to them to test the veracity of such evidence, specially in the face of their defence that the video clippings had been doctored or morphed which plea had not been properly examined or enquired into and the evidence of such nature had been relied upon in violation of the settled law; the expulsions are illegal, arbitrary and unconstitutional, being violative of the provisions of Articles 14 and 21 of the Constitution; the petitioners claim that as a consequence of the impugned decisions they had suffered irreparable loss and their image and prestige had been lowered in the eyes of the electorate.
18. The two Houses of Parliament, through their respective secretariats, have chosen not to appear in the matter. The impugned decisions are, however, sought to be defended by the Union of India. The contention urged on behalf of Union of India is that the conduct of accepting money for tabling questions and raising matters in the House was considered by the respective Houses of Parliament as unbecoming of members of the House rendering them unfit for being members of the respective Houses. The actions of expulsions are matters within the inherent power and privileges of the Houses of Parliament. It is a privilege of each House to conduct its internal proceedings within the walls of the House free from interference including its right to impose disciplinary measures upon its members. The power of the Court to examine the action of a House over outsider in a matter of privilege and contempt does not extend to matters within the walls of the House over its own members. When a member is excluded from participating in the proceedings of the House, it is a matter concerning the House and the grievance of expulsion is in regard to proceedings within the walls of Parliament and in regard to rights to be exercised within the walls of the House, the House itself is the final judge. The expulsion of these members has been rightly carried out by respective Houses in exercise of their powers and privileges under Article 105(3) of the Constitution which power and privilege of expulsion has been exercised by the Houses of Parliament in the past as well. The expulsion does not create any disability to be re-elected again as a member of the House.
19. We have heard learned Senior Advocates Mr. Ram Jethmalani, Mr. P.N. Lekhi for the petitioners as also Dr. K.S. Chauhan, Advocate and other learned counsel appearing for the petitioners. For the respondents, we have heard Mr. Gopal Subramanian, learned additional Solicitor General appearing on behalf of Attorney General for India and Mr. T.R. Andhyarujina, learned Senior Advocate on behalf of Union of India.
Constitutional Scheme
20. To appreciate the contentions, it is necessary to first examine the constitutional scheme.
21. That the Constitution is the Supreme lex in this Country is beyond the pale of any controversy. All organs of the State derive their authority, jurisdiction and powers from the Constitution and owe allegiance to it. This includes this Court also which represents the judicial organ. In the celebrated case of Kesavananda Bharati v. State of Kerala1, this Court found certain basic features of the Constitution that include, besides supremacy of the Constitution, the republican and democratic form of Government, and the separation of powers between the Legislature, the Executive and the Judiciary. The principle of supremacy of the Constitution has been reiterated by this Court post Kesavananda Bharati in case after case including, to name just some of them, Indira Nehru Gandhi v. Raj Narain2, Minerva Mills Ltd. v. Union of India3, Sub-Committee on Judicial Accountability v. Union of India4, I. Manilal Singh v. H . Borobabu Singh (Dr.)5, Union of India v. Assn. for Democratic Reforms6, Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter)7, People’s Union for Civil Liberties (PUCL) v. Union of India8, Pratap Singh v. State of Jharkhand1, Rameshwar Prasad (VI) v. Union of India2, [(2006) 2 SCC 1], Kuldip Nayar v. Union of India3, [(2006) 7 SCC 1].
22. That the parliamentary democracy in India is qualitatively distinct from the one in England from where we have borrowed the Westminister model of Government, is also well settled. In this context, before proceeding further on this premise, we may quote the following observations of the Constitution Bench (7 Judges) appearing at page 444 in Special Reference No. 1 of 19644, (UP Assembly case) :-
‘In dealing with this question, it is necessary to bear in mind one fundamental feature of a Federal Constitution. In England, Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament, and that the right or power of Parliament extends to every part of the Queen’s dominions [Dicey, The Law of the Constitution 10th ed. Pp.xxxiv, xxxv]. On the other hand, the essential characteristic of federalism is ‘the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other’. 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 those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers. Nor is any change possible in the constitution by the ordinary process of federal or State legislation [Ibid p.ixxvii]. Thus the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours.’
23. In the constitutional scheme that has been adopted in India, the Legislatures play a significant role in pursuit of the goals set before the nation and command the position of grandeur and majesty. The Legislatures undoubtedly have plenary powers but such powers are controlled by the basic concepts of the written constitution and can be exercised within the legislative fields allotted to their respective jurisdiction under the Seventh Schedule. They have the plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution. But, the basis of that power is the Constitution itself. In this context, it would be fruitful to also take note of the following observations appearing at page 445 of the afore-mentioned judgment in UP Assembly case :-
‘….Besides, the legislative supremacy of our legislatures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. If the legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution.’
24. The judicial organ of the State has been made the final arbiter of Constitutional issues and its authority and jurisdiction in this respect is an important and integral part of the basic structure of the Constitution of India. Before coming in grips with the complex Constitutional questions that have been raised, we would well remind ourselves, more than we do everyone else, of the following further observations made at page 447 :-
‘In this connection it is necessary to remember that the status, dignity and importance of these two respective institutions, the legislatures and the Judicature, are derived primarily from the status, dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive which is another important constituent of a democratic State, must function not in antinomy nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic State alone will help the peaceful development, growth and stabilisation of the democratic way of life in this country.’
25. The issues involved are required to be examined bearing in mind the basic ethos of our Constitutional scheme in the above light.
26. The Constitution of India provides through Chapter II of Part V for Union Legislature, called the ‘Parliament’. Parliament consists of, besides the President, two Houses known respectively as the Council of States (Rajya Sabha) and the House of the People (Lok Sabha). Article 80 deals with the matter of composition of Rajya Sabha. Article 81, on the other hand, provides for composition of Lok Sabha. In terms of Article 83, Rajya Sabha is a permanent body, not subject to dissolution, its continuance being ensured by replacements of one third of the members who retire on the expiration of every second year. Lok Sabha, on the other hand, is given a fixed term of five years, unless sooner dissolved or unless its term is extended in situation of emergency as provided in the proviso to sub-rule (2) of Article 83.
27. In the loose federal structure that India has adopted for itself, wherein India is an indestructible Union of destructible units, there is a provision for State Legislature in Chapter III of Part VI governing the States, almost similar to the set up at the Centre.
28. The relations between the Union and the States are controlled by the provisions contained in Part XI of the Constitution.
29. The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the States respectively, the authority to make rules for regulating their respective procedure and conduct of business ‘subject to the provisions of this Constitution’.
30. Since we are concerned mainly with the Houses of Parliament in these proceedings, it may be mentioned that each House in exercise of its powers under Article 118 has framed detailed rules of procedure which are called ‘Rules of Procedure and Conduct of Business in Lok Sabha’ and Rules of Procedure and Conduct of Business in the Council of States’.
31. Conscious of the high status of these bodies, the Constitution accorded certain powers, privileges and immunities to the Parliament and State Legislatures and their respective members. For this purpose, specific provisions were included in the Constitution in Articles 105.
32. For the present, it may only be noticed that sub-Article (1) of Article 105 and Article 194 respectively confers on the Members of Parliament and the State Legislatures respectively ‘freedom of speech’ in the Legislature, though ‘subject to the provisions’ of the Constitution and ‘subject to the rules and orders regulating the procedure’ of Parliament or of the Legislatures, as the case may be.
33. Sub-Article (2) of both the said Articles grants, inter alia, absolute immunity to members of the Legislatures from ‘any proceedings in any Court in respect of anything said or any vote given’ by them in the Legislatures or any Committee thereof. Sub-Article (3) of Article 105 and Article 194 declares that ‘the powers, privileges and immunities’ of each House of the Legislatures and the members and Committees thereof, ‘in other respects’ shall be ‘such as may from time to time be defined’ by the Parliament or the State Legislature, as the case may be, ‘by law’ and, ‘until so defined’, to be those as were enjoyed by the said Houses or members of the Committees thereof immediately before coming into force of the amendment in 1978.
34. Article 122 is of great import in the context of, amongst others, Article 105, since it seems to restrict the jurisdiction of the Courts in relation to ‘proceedings of Parliament’. It reads as under:-
‘122. Courts not to inquire into proceedings of Parliament. -(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.’
35. There is a similar provision in relation to State Legislature.
36. Having given our anxious considerations to the myriad issues that have been raised on both sides of the divide, we have found that the primordial questions that need to be addressed by the Court can be formulated as under :-
1. Does this Court, within the constitutional scheme, have the jurisdiction to decide the content and scope of powers, privileges and immunities of the Legislatures and its members?
2. If the first question is answered in the affirmative, can it be found that the powers and privileges of the Legislatures in India, in particular with reference to Article 105, include the power of expulsion of their members?
3. In the event of such power of expulsion being found, does this Court have the jurisdiction to interfere in the exercise of the said power or privilege conferred on the Parliament and its members or Committees and, if so, is this jurisdiction circumscribed by certain limits?
37. In our approach to these issues of great importance, we have followed the advice of Thomas Huxley in the following words :-
‘It is not who is right, but what is right, that is of importance’
38. In our quest, again borrowing the words of Thomas Huxley, we must
‘learn what is true in order to do what is right’.
39. The need, if any, to take up for consideration, the grievances expressed by the petitioners in relation to the manner of exercise of the power and privilege asserted by both Houses of Parliament to expel their respective members would arise in light of decision on the two first-mentioned cardinal questions.
Court’s Jurisdiction to decide on the scope of Article 105(3)
40. There was virtually a consensus amongst the learned counsel that it lies within the powers and jurisdiction of this Court to examine and determine the extent of power and privileges to find out whether actually power of expulsion is available under Article 105(3) or not.
41. Having regard to the delicate balance of power distributed amongst the three chief organs of the State by the Constitution of India and the forceful assertions made particularly with regard to the limitation on court’s jurisdiction, we decided not to depend upon mere concession of the learned counsel as to our jurisdiction. We thought it prudent to examine it fully even in the context of primary question about the judicial authority to go into the question of existence of a particular power or privilege asserted and claimed under Article 105, so as to reassure ourselves that we were not in any manner intruding into a zone which is out-of-bounds for us.
42. Fortunately, the subject at hand is not a virgin territory. There have been occasions in the past for this court to go into these issues, though in somewhat different fact situations. Similarly, we have the benefit of opinion on these questions, expressed by at least three High Courts, though that happens to be a divided opinion.
43. As can be seen from the language employed in Article 105, the Parliament is empowered to define, by law, the powers, privileges and immunities of each House and of their Members and Committees in respects other than those specified in the Constitutional provisions. Though some part of the arguments advanced on behalf of the petitioners did try to refer to certain statutory provisions, for example, provisions contained in Sections 8 to 11 of the Representation of People Act 1951, as referable to the enabling power given to the Parliament in the first part of Article 105(3) but for present purposes, we would assume that Parliament has not yet exercised the said enabling power in as much as there is no law enacted till date that can be referred as cataloging the powers, privileges and immunities of each House of Parliament and of their members and committees. This consequence leads to continuity of the life of the second part of Article 105(3) in as much as that part of the provision was designed to come to an end as soon as the Parliament defined by law its powers, privileges and immunities. Therefore, powers, privileges and immunities not having been defined, the question is what are those powers which were enjoyed by House of Commons at the commencement of our Constitution as that will determine the powers, privileges and immunities of both Houses of Indian Parliament.
44. The history of the subject of Parliamentary privileges indicates numerous instances where the effort at tracing the dividing line between the competence of courts and the exclusive jurisdiction of the legislature threw up complex Constitutional questions giving rise to divergent opinions and decisions even in England, more importantly, in connection with the House of Commons. These questions included the abstract question whether the law of Parliament in such regard was a ‘particular law’ or ‘part of the common law’ in its wide and extended sense and the practical question whether the House of Commons was to be the sole judge of a matter of privilege claimed by it even when the rights of third parties were involved or whether in such cases the issues could be decided in the courts. The next question arising from the last mentioned issue naturally concerned the extent of the power of the judges that is to say if they were bound to accept and apply the parliamentary interpretation of the law or were free to form their own view in such regard.
45. The dust has since settled even in England which jurisdiction since concedes the jurisdiction of the court to decide all questions of privilege, except those concerning exclusive jurisdiction of the legislative chamber over its own internal proceedings.
46. The works of English and Commonwealth authors have always been treated as the most authoritative references for determining the source of a Privilege or power exercised by the House of Commons. They include Halsbury’s Laws of England, Maitland, Wade and Phillips, Keir and Lawson, Sir Barnett Cocks, Ridges on Constitutional Law, and Sir William Anson’s ‘The Law and Custom of the Constitution’. Sir Thomas Erskine May was a clerk of the House of Commons (1871-1886). His work ‘Parliamentary Practice’, hereinafter referred to as ‘May’s Parliamentary Practice’, is universally regarded as an authoritative exposition of this branch of law.
47. The following extract from page 183 in chapter 11 ‘Jurisdiction of Courts of Law in Matters of Privilege’ as appearing in Erskine May’s Parliamentary Practice, 20th Edition reflects the prevalent law in United Kingdom:-
‘The problem thus became one of reconciling the law of privilege with the general law. The solution gradually marked out by the courts is to insist on their right in principle to decide all questions of privilege arising in litigation before them, with certain large exceptions in favour of parliamentary jurisdiction. Two of these, which are supported by a great weight of authority, are the exclusive jurisdiction of each House over its own internal proceedings, and the right of either House to commit and punish for contempt. While it cannot be claimed that either House to commit or formally acquiesced in this assumption of jurisdiction by the courts, the absence of any conflict for over a century may indicate a certain measure of tacit acceptance.’
48. The learned counsel for all sides have referred to Bradlaugh v. Gossett1. Charles Bradlaugh, the plaintiff in that case before Queen’s Bench Division had been elected a Burgess to serve in the House of Commons and was entitled to take oath by law prescribed to be taken by the members of the said chamber of legislature and to sit and vote in the House as an elected representative. This resolution was explained in due course by Speaker to mean that the exclusion of Bradlaugh from the House would continue ‘until he should engage not to attempt to take the oath in disregard of the resolution of the House now in force’. The issues that were raised before the court included the question whether the House of Commons had a right to pass such a resolution forbidding the member of the House within the walls of the House itself from doing something which by the law of the land he had a right to do so and whether the court could inquire into the said right and allow an action to be maintained by a member of the House. Reliance has been placed on certain observations made in the judgment that was rendered in the said fact situation. At page 275, Lord Coleridge, C.J. observed as under:-
‘Alongside, however, of these propositions, for the soundness of which I should be prepared most earnestly to contend, there is another proposition equally true, equally well established, which seems to me decisive of the case before us. What is said or done within the walls of Parliament cannot be inquired into in a court of law. On this point all the judges in the two great cases which exhaust the learning on the subject Burdett v. Abbott [14 East, 1, 148] and Stockdale v. Hansard [9 Ad. and E. 1.]; – are agreed, and are emphatic. The jurisdiction of the House over their own members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, ‘They would sink into utter contempt and inefficiency without it.’ [14 East, at p. 152]’
49. The learned counsel then referred to the Privy Council decision in Richard William Prebble v. Television New Zealand Ltd.1. It arose out of a defamation action by a former Minister of the Government of New Zealand where proceedings in Parliament were questioned. The issue of infringement of parliamentary privilege was raised in the context of Article 9 of the Bill of Rights 1689 which declared that the freedom of speech and debates or proceedings in Parliament ‘ought not to be impeached or questioned in any court or place out of Parliament’. The Privy Council observed as under at page 976:-
‘In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognize their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protect on of its established privileges. Burdett v. Abbot (1811) 14 East 1; Stockdale v. Hansard (1839) 9 Ad. and EI. 1; Bradlaugh v. Gossett (1884 12 QBD 271; Pickin v. British Railways Board [(1974) AC 765; Pepper v. Hart [1993] AC 593. As Blackstone said in his Commentaries on the Laws of England, 17th ed. (1830), vol.1, p. 163: ‘the whole of the law and custom of Parliament has its original from this one maxim, ‘that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.”
50. Further, the views formulated in Prebble v. Television New Zealand Ltd. were expressed at page 980 thus:
‘Parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by in proper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House, subject to any statutory exception such as exists in New Zealand in relation to perjury under Section 108 of the Crimes Act 1961.’
51. The learned counsel would then refer to the law that has been evolved in India, the case of M.S.M. Sharma v. Sri Krishna Sinha2, hereinafter referred to as case of Pandit Sharma (I), being perhaps the first in a series of such cases on the subject.
52. Pandit Sharma, the petitioner in that case was editor of an English Daily Newspaper ‘Searchlight’ of Patna. He invited the wrath of the legislative assembly of Bihar by publishing extracts from proceedings of the legislative assembly including certain parts which had been ordered to be expunged by the Speaker. In this context, the Speaker had referred the matter to the Privileges Committee of the assembly which in turn issued a show cause notice to him. Pandit Sharma brought writ petition in this court under Article 32 of the Constitution of India alleging that the proceedings initiated by the legislative assembly had violated his fundamental right of speech and expression under Article 19 (1) (a) as also the fundamental right of protection of his personal liberty under Article 21. The case was decided by a Constitution Bench (five Judges), with main focus on two principal points; namely, the availability of a privilege under Article 194(3) of the Constitution to the House of a legislature in India to prohibit entirely the publication of the publicly seen and heard proceedings that took place in the House or even to prohibit the publication of such part of the proceedings as had been directed to be expunged and as to whether the privilege of the legislative chamber under Article 194(3) prevailed over the fundamental right of a citizen under Article 19 (1) (a). Noticeably, no specific objection as to the jurisdiction of the court in examining the issue of existence and availability of the particular privilege was raised at any stage.
53. It may be mentioned here that the writ petition of Pandit Sharma was dismissed on the basis of majority view, inter alia, holding that the legislatures in India were vested with the power or privilege of prohibiting the publication of debates or proceedings that took place in the House, of even a true and faithful report, as indeed of an inaccurate or garbled version thereof. It was further held that the powers, privileges and immunities available in terms of Articles 105(3) and 194(3) stood in the same supreme position as the provisions of Part III of the Constitution and could not be affected by Article 13 and, therefore, the principle of harmonious construction required to be adopted. The court concluded that the fundamental right of free speech and expression under Article 19 (1)(a) being general in nature must yield to Article 194(1) and the latter part of Article 194(3) which are special provisions. The challenge to the proceedings under Article 194(3) on the basis of Article 21 was also repelled on the ground of it being ‘in accordance with the procedure established by law’ in as much as the rules framed by the legislative assembly under Article 208 laid down the procedure.
54. The case of Pandit Sharma did not end there. Subsequently, the legislative assembly of Bihar came to be prorogued several times and the committee of privileges was also reconstituted. This led to a fresh notice being issued to Pandit Sharma in the wake of which he brought another writ petition under Article 32 of the Constitution, substantially raising the same questions and contentions as had been agitated in the earlier proceedings by him before this court. This writ petition was dismissed by the Constitution Bench (eight Judges). The judgment is reported as M.S.M. Sharma v. Shree Krishna Sinha1, hereinafter referred to as case of Pandit Sharma (II).
In Para 10 of the Judgment, this Court observed thus:-
’10. …. It was contended that the procedure adopted inside the House of the Legislature was not regular and not strictly in accordance with law. There are two answers to this contention, firstly, that according to the previous decision of this Court, the petitioner has not the fundamental right claimed by him. He is, therefore, out of Court. Secondly, the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the contention raised on behalf of the petitioner. No Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business. Possibly, a third answer to this part of the contention raised on behalf of the petitioner is that it is yet premature to consider the question of procedure as the Committee is yet to conclude its proceedings. It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference by this Court under Article 32 of the Constitution. Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non- compliance with rules of procedure cannot be a ground for issuing a writ under Article 32 of the Constitution vide Janardan Reddy v. State of Hyderabad [1951 SCR 344].’
55. By far, the advisory opinion given by a Constitution Bench comprising of seven Judges of this court in UP Assembly case is the most elaborate discourse on the subject of powers, privileges and immunities of the legislatures under the Constitution of India. The matter had arisen out of a Reference by the President of India under Article 143(1) of the Constitution seeking opinion of this court on certain issues, the genesis of which was traceable to certain unfortunate developments concerning the legislative assembly of the State of Uttar Pradesh and the Lucknow Bench of the High Court at Allahabad. The legislative assembly of Uttar Pradesh had committed one Keshav Singh, who was not one of its members, to prison for its contempt. The warrant of committal did not contain the facts constituting the alleged contempt. Keshav Singh moved a petition, inter alia, under Article 226 of the Constitution through his advocate challenging his committal as being in breach of his fundamental rights. A division bench of the High Court sitting at Lucknow gave notice to the Government counsel and on the appointed day proceeded to hear the application for bail. At that stage, the Government Counsel did not appear. The division bench heard the application and ordered release of Keshav Singh on interim bail pending decision on his writ petition. The legislative assembly found that Keshav Singh and his advocate in moving the High court and the two Judges of the High Court in entertaining the petition and granting bail had committed contempt of the legislative assembly. The assembly passed a resolution that all of them, including the two High Court Judges, be produced before it in custody. The High Court Judges and the advocate in question thereupon filed writ petitions before the High Court at Allahabad. A full bench of the High Court admitted the writ petitions and ordered the stay of execution of the assembly’s resolution against them. Subsequently, the legislative assembly passed a clarificatory resolution modifying its earlier stand and asking the Judges and the advocate to appear before the House and offer their explanation. It was against this backdrop that the President made a reference under Article 143(1) of the Constitution seeking opinion mainly as to the Constitutional relationship between the High Court and the State Legislature in matters of the powers and privileges of the latter. The contours of the main controversy were summarized by this court at page 439 in the report in the following words:-
’27. ….Is the House the sole and exclusive judge of the issue as to whether its contempt has been committed where the alleged contempt has taken place outside the four walls of the House? Is the House the sole and exclusive judge of the punishment which should be imposed on the party whom it has found to be guilty of its contempt? And, if in enforcement of its decision the House issues a general or unspeaking warrant, is the High Court entitled to entertain a habeas corpus petition challenging the validity of the detention of the person sentenced by the House?………..’
56. It is clear from the opinion rendered in UP Assembly case that the State legislature, though participating in the hearing, expressed reservations as to the jurisdiction of this court in any manner in respect of the area of controversy covered by the questions, insisting that ‘the question about the existence and extent of the powers, privileges and immunities of the House, as well as the question about the exercise of the powers and privileges were entirely and exclusively within the jurisdiction of the House; and whatever this Court may say will not preclude the House from deciding for itself the points referred to us under this Reference’, referring in this context, inter alia to the fact that there was no lis before the court which was therefore not exercising ‘its judicial function’ while dealing with a reference under Article 143 (1).
57. After examining the issue of absolute immunity of the proceedings of the House in such matters from challenge in the court, in light of various Constitutional provisions and tracing the development of the law on the subject in England with the help, amongst others, of May’s Parliamentary Practice, this Court summarized the legal position as obtaining in United Kingdom, at page 467, as under:-
’83. In regard to punishment for contempt, a similar process of give and take by convention has been in operation and gradually a large area of agreement has, in practice, been evolved. Theoretically, the House of Commons claims that its admitted right to adjudicate on breaches of privilege implies in theory the right to determine the existence and extent of the privileges themselves. It has never expressly abandoned this claim. On the other hand, the courts regard the privileges of Parliament as part of the law of the land, of which they are bound to take judicial notice. They consider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction, and to decide it according to their own interpretation of the law [May’s Parliamentary Practice, p. 172]. Naturally, as a result of this dualism the decisions of the courts are not accepted as binding by the House in matters of privilege, nor the decisions of the House by the courts; and as May points out, on the theoretical plane, the old dualism remains unresolved. In practice, however, ‘there is much more agreement on the nature and principles of privilege than the deadlock on the question of jurisdiction would lead one to expect’ and May describes these general conclusions in the following words:
(1) It seems to be recognized that, for the purpose of adjudicating on questions of privilege, neither House is by itself entitled to claim the supremacy over the ordinary courts of justice which was enjoyed by the undivided High Court of Parliament. The supremacy of Parliament, consisting of the King and the two Houses, is a legislative supremacy which has nothing to do with the privilege jurisdiction of either House acting singly.
(2) It is admitted by both Houses that, since either House can by itself add to the law, neither House can by its own declaration create a new privilege. This implies that privilege is objective and its extent ascertainable, and reinforces the doctrine that it is known by the courts.
On the other hand, the courts admit:
(3) That the control of each House over its internal proceedings is absolute and cannot be interfered with by the courts.
(4) That a committal for contempt by either House is in practice within its exclusive jurisdiction, since the facts constituting the alleged contempt need not be stated on the warrant of committal [May’s Parliamentary Practice, p. 173].
84. It is a tribute to the remarkable English genius for finding pragmatic ad hoc solutions to problems which appear to be irreconcilable by adopting the conventional
JT 2007 (2) SC 233
Saroj Kumar Poddar v. State (NCT of Delhi) and Anr.
Criminal Appeal No. 70 of 2007
(Arising out of SLP (Crl.) No. 4645 of 2006)
(From the common final Judgment and Order dated 27.7.2006 of the High Court of Delhi at New Delhi in Crl. M.C. Nos. 4583, 4580 and 4575/2003)
S.B. Sinha and Markandey Katju, JJ.
Dt. 16.01.2007
Appearances
Mr. Sidharth Luthra, Mr. Susmit Puskar and Ms. Vanita Bhargava (for M/s. Khaitan and Co.), Advocates for the Appellant.
Mr. B.L. Wali, Mr. V.N. Raghupathy and Mr. D.S. Mahra, Advocates for the Respondents.
CRIMINAL LAWS / CHEQUE DISHONOUR
Negotiable Instruments Act, 1881
Sections 138 and 141 – Dishonour of cheques – Offences by companies – Constructive liability of directors – Scope – Requirements of Section 141 – Company issuing cheques – Dishonour of such cheques – Criminal complaint against the company and its directors including the appellant – Cheques stated to be post-dated cheques – Appellant stating to have resigned from the directorship of the company even before the date of issuance of the cheques and much before the presentation and dishonour of the cheques – Cheques in question not issued by the appellant – No averment in the complaint as to how the appellant was responsible for the conduct of the business of the company or otherwise responsible. Held since the allegations did not satisfy the requirements of Section 141 and did not disclose any offence against the appellant proceedings against him ought to have been quashed by the High Court. Order of High Court upholding cognizance of the offence against appellant therefore set aside.
HELD
A person would be vicariously liable for commission of an offence on the part of a Company only in the event the conditions precedent laid down therefor in Section 141 of the Act stand satisfied. For the aforementioned purpose, a strict construction would be necessary. (Para 12)
Apart from the Company and the appellant, as noticed hereinbefore, the Managing Director and all other Directors were also made accused. The appellant did not issue any cheque. He, as noticed hereinbefore, had resigned from the Directorship of the Company. It may be true that as to exactly on what date the said resignation was accepted by the Company is not known, but, even otherwise, there is no averment in the complaint petitions as to how and in what manner the appellant was responsible for the conduct of the business of the Company or otherwise responsible to it in regard to its functioning. He had not issued any cheque. How he is responsible for dishonour of the cheque has not been stated. The allegations made in paragraph 3, thus, in our opinion do not satisfy the requirements of Section 141 of the Act. (Para 14)
Our attention, however, has been drawn to the averments made in paragraphs 7 and 10 of the complaint petition, but on a perusal thereof, it would appear that therein merely allegations have been made that the cheques in question were presented before the bank and they have been dishonoured. Allegations to satisfy the requirements of Section 138 of the Act might have been made in the complaint petition but the same principally relate to the purported offence made by the Company. With a view to make a Director of a Company vicariously liable for the acts of the Company, it was obligatory on the part of the complainant to make specific allegations as are required in law. (Para 15)
For the reasons aforementioned, we have no other option but to hold that the allegations made in the complaint petitions even if are taken to be correct in their entirety do not disclose any offence as against the appellant herein. The proceedings against him, thus, should have been quashed by the High Court. The impugned judgment, therefore, cannot be sustained which is set aside accordingly. The appeal is allowed. (Para 19)
Cases Referred:
1. Sabitha Ramamurthy and Anr. v. R.B.S. Channabasavaradhya [JT 2006 (12) SC 20] (Para 18)
2. S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another [JT 2005 (8) SC 450] (Para 16)
S.B. Sinha, J.
1. Leave granted.
2. Appellant herein was a Director of a public limited company, incorporated and registered under the Indian Companies Act, known as VHEL Industries Limited (hereinafter referred to as ‘the Company’). The Company issued three cheques bearing Nos. 138015, 138016 and 138017 for a sum of Rs. 2,50,000/-, Rs. 2,50,000/- and Rs. 3,03,952.60, respectively in favour of Elkay International Private Limited, respondent no. 2 herein.
3. The complainant – respondent no. 2 is manufacturer and supplier of chemical compounds of different kinds. It supplied its product to the Company. Allegedly, a sum of Rs. 13,36,923/- was due and payable to the complainant by the Company. The Company issued three cheques, as noticed hereinbefore, in favour of the complainant. The said cheques were deposited in a bank but were dishonoured. A complaint petition came to be filed by the complainant in the Court of Chief Metropolitan Magistrate, Delhi against the appellant as also the said Company. The Managing Director of the said Company as also the other Directors were also arrayed as accused therein. It was alleged that Shri K.K. Pilania- accused no. 3 and Shri N.K. Munjal – accused no. 8 signed the said cheques for and on behalf of the Company.
4. Cognizance was taken against the appellant and other accused persons. Inter alia on the premise that the appellant had resigned from the Directorship of the Company before the date of issuance of the cheques and much before the deposit thereof by the drawee with its bank, and thus, he was not liable for the action of the Company, applications for quashing of the orders taking cognizance of the offence in the said complaint petitions were filed by the appellant before the High Court of Delhi which were marked as Crl. M.C. Nos. 4583, 4580 and 4575 of 2003. By reason of
the impugned judgment, the said petitions have been dismissed by the High Court stating:
‘The learned trial judge while dealing with the recalling order of the petitioner made specific mention of the fact that the cheque in question was post dated cheque issued through letter dated 10th May, 1997. If that be so the matter needs further probe by way of trial and the petitioner cannot claim complete innocence at this stage in view of the letter dated 10th May, 1997 prima facie indicating that the cheque in question was issued on this date and the petitioner was the Director of the Company on 10th May, 1997 as he himself admitted that he resigned from the company with effect from 19th June, 1997.’
5. The appellant is, thus, before us.
6. Ms. Vanita Bhargava, learned counsel appearing on behalf of the appellant, would contend that the averments made in complaint petitions even if given face value and taken to be correct in their entirety do not constitute an offence as against the appellant in terms of Section 141 of the Negotiable Instruments Act (for short ‘the Act’).
7. It was further submitted that in any event, the appellant having resigned from the Directorship of the said Company, the complaint petitions as against him were not maintainable.
8. Mr. B.L. Wali, learned counsel appearing on behalf of the respondents, on the other hand, would submit that the appellant had not disclosed as to when the resignation purported to have been submitted by him was accepted by the Company and in that view of the matter the complaint petitions were maintainable.
9. Section 138 of the Act reads as under:
‘138. Dishonour of cheque for insufficiency, etc., of funds in the account –
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another persons from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:’
10. For creating a criminal liability in terms of the said Section, the complainant must show:
(i) that a cheque was issued;
(ii) the same was presented;
(iii) but, it was dishonoured;
(iv) a notice in terms of the said provision was served on the person sought to be made liable; and
(v) despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice.
11. Section 141 of the Act postulates constructive liability on the part of the Directors of the Company or other persons responsible for the conduct of the business of the Company. It reads as under:
‘141. Offences by companies. – (1) If the person committing an offence under Section 138 is a Company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the Company for the conduct of the business of the Company, as well as the Company, shall be deemed to
be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.
Provided further that where a person is nominated as a Director of a Company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for-prosecution under this Chapter.
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a Company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any Director, manager, secretary or other officer of the Company, such Director, manager, secretary or other officer shall also he deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.’
12. A person would be vicariously liable for commission of an offence on the part of a Company only in the event the conditions precedent laid down therefor in Section 141 of the Act stand satisfied. For the aforementioned purpose, a strict construction would be necessary.
13. The purported averments which have been made in the complaint petitions so as to make the appellant vicariously liable for the offence committed by the Company read as under:
‘That the accused no. 1 is a public limited Company incorporated and registered under the Companies Act, 1956, and the accused 2 to 8 are/ were its Directors at the relevant time and the said Company is managed by the Board of Directors and they are responsible for the incharge of the conduct and business of the Company – accused no. 1. However, cheques referred to in the complaint have been signed by the accused no. 3 and 8 i.e. Shri K.K. Pilania and Shri N.K. Munjal for and on behalf of the accused Company no. 1.’
14. Apart from the Company and the appellant, as noticed hereinbefore, the Managing Director and all other Directors were also made accused. The appellant did not issue any cheque. He, as noticed hereinbefore, had resigned from the Directorship of the Company. It may be true that as to exactly on what date the said resignation was accepted by the Company is not known, but, even otherwise, there is no averment in the complaint petitions as to how and in what manner the appellant was responsible for the conduct of the business of the Company or otherwise responsible to it in regard to its functioning. He had not issued any cheque. How he is responsible for dishonour of the cheque has not been stated. The allegations made in paragraph 3, thus, in our opinion do not satisfy the requirements of Section 141 of the Act.
15. Our attention, however, has been drawn to the averments made in paragraphs 7 and 10 of the complaint petition, but on a perusal thereof, it would appear that therein merely allegations have been made that the cheques in question were presented before the bank and they have been dishonoured. Allegations to satisfy the requirements of Section 138 of the Act might have been made in the complaint petition but the same principally relate to the purported offence made by the Company. With a view to make a Director of a Company vicariously liable for the acts of the Company, it was obligatory on the part of the complainant to make specific allegations as are required in law.
16. The question came up for consideration before a 3-Judge Bench of this Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another1; wherein upon consideration of a large number of decisions this Court opined:
‘While analysing Section 141 of the Act, it will be seen that it operates in cases where an offence under Section 138 is committed by a Company. The key words which occur in the Section are ‘every person’. These are general words and take every person connected with a Company within their sweep. Therefore, these words have been rightly qualified by use of the words ‘ who, at the time the offence was committed, was in charge of and was responsible to the Company for the conduct of the business of the Company, as well as the Company, shall be deemed to be guilty of the offence etc.’ What is required is that the persons who are sought to be made criminally liable under Section 141 should be at the time the offence was committed, in charge of and responsible to the Company for the conduct of the business of the Company. Every person connected with the Company shall not fall within the ambit of the provision. It is only those persons who were in charge of and responsible for conduct of business of the Company at the time of commission of an offence, who will be liable for criminal action. It follows from this that if a Director of a Company who was not in charge of and was not responsible for the conduct of the business of the Company at the relevant time, will not be liable under the provision. The liability arises from being in charge of and responsible for conduct of business of the Company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a Company. Conversely, a person not holding any office or designation in a Company may be liable if he satisfies the main requirement of being in charge of and responsible for conduct of business of a Company at the relevant time. Liability depends on the role one plays in the affairs of a Company and not on designation or status. If being a Director or Manager or Secretary was enough to cast criminal liability, the Section would have said so. Instead of ‘every person’ the section would have said ‘every Director, Manager or Secretary in a Company is liable’….etc. The legislature is aware that it is a case of criminal liability which means serious consequences so far as the person sought to be made liable is concerned. Therefore, only persons who can be said to be connected with the commission of a crime at the relevant time have been subjected to action.
A reference to sub-section (2) of Section 141 fortifies the above reasoning because sub-section (2) envisages direct involvement of any Director, Manager, Secretary or other officer of a company in commission of an offence. This section operates when in a trial it is proved that the offence has been committed with the consent or connivance or is attributable to neglect on the part of any of the holders of these offices in a company. In such a case, such persons are to be held liable. Provision has been made for Directors, Managers, Secretaries and other officers of a Company to cover them in cases of their proved involvement.’
17. It was further opined:
‘To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a Company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 of the Act contains the requirements for making a person liable under the said provision. That respondent tails within parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141 he would issue the process. We have seen that merely being described as a Director in a Company is not sufficient to satisfy the requirement of Section 141. Even a non Director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial.’
18. This aspect of the matter has also been considered recently by this Court in Sabitha Ramamurthy and Anr. v. R.B.S. Channabasavaradhya1 stating:
‘….Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a Company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the Company. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted…’
19. For the reasons aforementioned, we have no other option but to hold that the allegations made in the complaint petitions even if are taken to be correct in their entirety do not disclose any offence as against the appellant herein. The proceedings against him, thus, should have been quashed by the High Court. The impugned judgment, therefore, cannot be sustained which is set aside accordingly. The appeal is allowed.