RAJA RAM PAL versus THE HONBLE SPEAKER, LOK SABHA & ORS.

124. Article 105 provides for powers, privileges and immunities of the members of Parliament. It is the most important provision as to the controversy raised in the present proceedings, and may be quoted in extenso; "I 05. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof -(I) Subject to the provisions of this Constitution and to.the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. (2) No member of Parliament shall be liable to any proceedings in any court in respect of any thing said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. (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 RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 587 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. " (emphasis supplied)

125. Articles I 07-22 contain provisions as to legislative procedure. Article 118 enables both the Houses of Parliament to make Rules for regulating procedure and conduct of business. Article 121 puts restriction on discussion in Parliament in respect of conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. Article 122 prohibits courts from inquiring into or questioning the validity of any proceedings in Parliament on the ground of irregularity of procedure. It reads thus: "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. c (2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaiining order, in Parliament shall be subject to the jurisdiction of any c:ourt in respect of the exercise by him of those powers. " (emphasis supplied) EXPULSION OF MEMBERS BY PARLIAMENT

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

127. The first case which came up for consideration before Parliament was of Mr. H.G. Mudgal, a Member of Lok Sabha. He suppressed certain material facts as to his relationship with the Bombay Bullion Association. A Committee of Enquiry found the charges proved and came to the conclusion that the conduct of the Hon'bl•e Member was 'derogatory of the [2007] I S.C.R. dignity of the House inconsistent with the standard which Parliament is entitled to expect from its members'. c

128. While addressing the House, the then Prime Minister Pandit Jawaharlal Nehru referred to the work of Sir Erkskine May, Article 105(3) of the Constitution and practice in the British House. But Pt. Nehru, in my opinion, rightly added; "Apart from that, even if the Constitution had made no reference to this, this House as a sovereign Parliament must have inherently the right to deal with its own problems as it chooses and I cannot imagine anybody doubting that fact". (emphasis supplied) Regarding approach of House in such cases, he said; "Indeed, r do not think it is normally possible for this House in a sense to convert itself into a court and consider in detail the evidence in the case and then come to a decision. Of course : the House is entitled to do so : but it is normally not done : nor is it considered, the proper procedure". He then stated; "The question arises whether in the present case this should be done or something else. I do submit that it is perfectly clear that this case is not even a case which might be called a marginal case, where people may have two opinions about it, where one may have doubts if a certain course suggested is much too severe. The case, if I may say so, is as bad as it could well be. If we consider even such a case as a marginal case or as one where perhaps a certain amount of laxity might be shown, I think it will be unfortunate from a variety of points of view, more especially because, this being the first case of its kind coming up before the House, ifthe House does not express its will in such matters in clear, unambiguous and forceful terms, then doubts may very well arise in the public mind as to whether the House is very definite aboot such matters or not. Therefore, I do submit that it has become a duty for us and an RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [CK THAKKER, J.] 589 obligation to be clear, precise and definite. The facts are clear and precise and the decision should also be clear and precise and unambiguous. And I submit the decision of the House should be, after accepting the finding of this report, to resolve that the Member should be expelled from the House".

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

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

131. Kaul and Shakhder in their book 'Practice and Procedure of Parliament', (Sth Edn., p. 262), stated: "Punishment of Members: In the case of its own members, two other punishments are also availabk to the House by which it can express its displeasure more strongly than by admonition or reprimand, namely, suspension from the service of the House and expulsion." EXPULSION OF MEMBERS AND COURTS

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

133. So far as this Court is concerned,, probably this is the first case of the type and, therefore, is of extreme importance. Few cases, which had come up for consideration earlier did not directly deal with expulsion of membership from Legislature. As already noted above, though in some cases, Parliament had taken an action of expelling its members, the aggrieved persons had not approached this Court*. * [Kaul and Shakhder after referring to conflicting decisions of the High Courts of Madhya Pradesh and Punjab & Haryana, stated; "There ate, therefore, two conflicting decisions and the position is uncertain. In the abs:ence of a decision by the Supreme Court, neither decision is a declared law under Article 141 of the Constitution. Law of a certain and binding character can be laid down only by the Supreme Court". 'Practice and Procedure of Parliament', (5th Edn.); P. 268]. [2007] I S.C.R

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

135. Considering Article l 94(3)[which is pari-materia to Article 105(3)] of the Constitution, and referring to English Authorities, Das, CJ observed (for the majority); The result of the foregoing discussion, therefore, is that the House of Commons had at the commencement of our Constitution the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that take place within the House. A fortiori the. House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate ·or garbled version of such debates or proceedings. The latter part of Art. 194(3) confers all these powers, privileges and immunities on the House of the Legislature of the States, as Art. I 05(3) does on the Houses of Parliament.

136. On the construction of Article 194(3), His Lordship stated: "Our Constitution clearly provides that until Parliament or the State Legislature, as the case may be, makes a law defining the powers, privileges and immunities of the House of Commons as at the date of the commencement of our Constitution and yet to deny them those powers, privileges and immunities, after finding that the House of Commons had them at the rel~vant time, will be not to interpret the Constitution but to re~make it. Nor do we share the view that it will not be right to entrust our Houses with these powers, privileges and immunities, for we are. well persuaded that our Houses, like the House of Commons, will RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 591 appreciate the benefit of publicity and will not exercise the powers, privileges and immunities except in gross cases. " (emphasis supplied)

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

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

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

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

141. One of the questions referred to by the President related to Parliamentary privileges vis-a-vis power of Court. It read thus: "(4) Whether, on the facts and circumstances of the case, it was competent for the Full Bench of the High Court of Uttar c [2007) 1 S.C.R. Pradesh to entertain and deal with the petitions of the said two Hon'ble Judges and Mr. B. Solomon, Advocate, and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly."

142. Before considering the ambit and scope of Article 194(3) and jurisdiction of the Legislature and the power of judicial review of the High Court under Article 226, the learned Chief Justice gave a golden advice stating: "In coming to the conclusion that the content of Art. 194(3) must ultimately be determined by courts and not by the legislatures, we are not unmindful of the grandeur and majesty of the task which has been assigned to the Legislatures under the Constitution. Speaking broadly, all the legislative chambers in our country today are playing a significant role in the pursuit of the ideal of a Welfare State which has been placed by the Constitution before our country, and that naturally gives the legislative chambers a high place in the making of history today. The High Courts also have to play an equally significant role in the development of the rule of law and there can be little doubt that the successful working of the rule of law is the basic foundation of the democratic way of life. In this connection it is necessary to remember that the status, dignity and importance of these two respective institutions, the Legislatures and the Judicature, are derived primarily from 'the status dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive which is another important constituent of a democratic State, must function not in antinovel nor in a spirit of hostility, but rationally, harmoniously and in spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic state alone will help the peaceful development, growth and stabilization of the democratic way of life in this country. But when, as in the present case, a controversy arises between the House and the High Court, we must deal with the problem RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 593 objectively and impersonally. There is no occasion to import heat into the debate or discussion and no justification for the use of strong language. The problem presented to us by the present reference is one of construing the relevant provisions of the Constitution and though its consideration may present some difficult aspects, we must attempt to find the answers as best as we can. In dealing with a dispute like the present which concerns the jurisdiction, the dignity and the independence of two august bodies in a State, we must remember that the objectivity of our approach itself may incidentally be on trial. It is, therefore, in a spirit of detached objective enquiry which is the distinguishing feature of judicial process that we propose to find solutions to the questions framed for our advisory opinion. If ultimately we come to the conclusion that the view pressed before us by Mr. Setalvad for the High Court is erroneous, we would not hesitate to pronounce our verdict against that view. On the other hand, if we ultimately come to the conclusion that the claim made by Mr. Seervai for the House cannot, be sustained, we would not falter to pronounce our verdict accordingly. In dealing with problems of this importance and significance, it is essential that we should proceed to discharge our duty without fear or favour, affection or ill-will and with the full consciousness that it is our solemn obligation to uphold the Constitution and the laws. " (emphasis supplied) Then analyzing Article 194(3), the Court stated: c "That takes us to clause (3). The first part of this clause empowers the Legislatures of States to make laws prescribing their powers, privileges and immunities.; the latter part provides that until such laws are made, the Legislatures in question shall enjoy the same powers, privileges and immunities which the House of Commons enjoyed at the commencement of the Constitution. The Constitution-makers must have thought that the Legislatures would take some time to make laws in respect of their powers, privileges and immunities. During the interval, it was clearly necessary to confer on them the necessary powers, privileges and immunities. There can be little doubt that the powers, privileges and immunities c which are contemplated by cl. (3), are incidental powers, privileges and immunities which every Legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of clause (3). This clause requires that the powers, privileges and immunities which are claimed by the House must be shown to have subsisted at the commencement of the Constitution, i.e., on January 26, 150. It is well-known that out of a large number o privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was _not only claimed by the House of Commons, but was recognised by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English courts, it would still be upheld under the latter part of clause (3) only on the ground that it was in fact claimed by the House of Commons. In other words, the inquiry which is prescribed by this clause is : is the power in question shown or proved to have subsisted in the House of Commons at the relevant time ? It would be recalled that Art. 194(3) consists of two parts. The first part empowers the Legislature to define by law from time to time its powers, privileges and immunities, whereas the second part provides that until the legislature chooses so to define its powers, privileges and immunities, its powers, privileges and immunities would be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees, at the commencement of the Constitution. Mr. Seervai's argument is that the latter part of Art. 194(3) expressly provides that all the powers which vested in the House of Commons at the relevant'time, vest in the House. This broad claim, however, cannot be accepted in its entirety, because there are some powers which cannot obviously be claimed by the House. Take the privilege of freedom of access which is exercised by the House of Commons as a body and RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 595 through its Speaker "to have at all times the right to petition, counsel, or remonstrate with their Sovereign through their chosen representative and have a favorabl.e construction placed on his words was justly regarded by the Commons as fundamental privilege". It is hardly necessary to point out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder and the privilege of impeachment cannot be claimed by the House. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of a parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in cases of doubt. This privilege again, admittedly, cannot be claimed by the House. Therefore, it would not be correct to say that an powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House."

143. Referring to conflict between two august organs of the State and complimenting the solution adopted by them in England, the learned Chief Justice said: "It has been common ground between the Houses and the courts that privilege depends on the "known laws and customs of Parliament'', and not on the ipse dixit of either House. The question in dispute was whether the law of Parliament was a "particular" law or part of the common law in its wide and extended sense, and in the former case whether it was a superior law which overrode the common law. Arising out of this question another item of controversy arose between the courts and the Parliament and that was whether a matter of privilege should be judged solely by the House which it concerned, even when the rights of third parties were involved, or whether it might in certain cases be decided in the courts, and, if so, in what sort of cases. The points of view adopted by the Parliament and the courts appeared to be irreconcilable. The courts claimed the right to decide for themselves when it became necessary to do so in proceedings brought before them, questions in relation to the existence or extent of these privileges, whereas both the Houses claimed to be exclusive c judges of their own privileges. Ultimately, the two points of view were reconciled in practice and a solution acceptable to both he parties was gradually evolved. This solution which is marked out by the courts is to insist on their right in principle to decide all questions of privilege arising in litigation before them, with certain large exceptions in favour of parliamentary jurisdiction. Two of these are the exclusive jurisdiction of each House over its own internal proceedings, and the right of either House to commit and punish for contempt. May adds that while it cannot be claimed that either House has formally acquiesced in this assumption of jurisdiction by the courts, the absence of any conflict for over a century may indicate a certain measure of tacit acceptance. In other words, 'the question about the existence and extent of privilege is generally treated as justiciable in courts where it becomes relevant for adjudication of any dispute brought before the courts. In regard to punishment for contempt, a similar process of give and take by convention has been in operation and gradually a large area of agreement has, iD. practice, been evolved. Theoretically, the House of Commons claims that its admitted right to adjudicate on breaches of privilege implies in theory the right to determine the existence and extent of the privileges themselves. It has never expressly abandoned this claim. On the other hand, the courts regard the privileges of Parliament as part of the law of the land, of which they are bound to take judicial notice. They consider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction, and to decide it according to their own interpretation of the law. Naturally, as a result of this dualism the decisions of the courts are not accepted as binding by the House in matters of privilege, nor the decision of the House by the courts; and as May points out, on the theoretical plane, the old dualism remains unresolved. In 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 L'!f -.., ,.. RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA (C.K. THAKKER. J.] 597 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 neither House can by itself add to the law, neither House can by its own declaration create a new privilege. This implies that privilege is objective and its extent ascertainable, and reinforces 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."

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

145. Construing Article 212 in its proper perspective and drawing distinction between 'irregularity' and 'illegality', the Court stated: "Art. 212(1) makes a provision which is relevant. It lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. Art. 212(2) confers immunity on the. officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Art. 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. That again is another indication which may afford some assistance in construing the scope and extent of the powers conferred on the House' by Art. 194(3)."

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

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

148. In Raj Narain v. Atmaram Govind & Anr., AIR (1954) All 319, the petitioner who was an elected representative of the Legislative Assembly of Uttar Pradesh wanted to move a motion in connection with forcible removal by police of three teachers who were on hunger-strike. Permission was not +- …. t RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 599 granted by the Speaker. The petitioner, however, continued to 'disturb' proceedings of the House and by use of 'minimum force', he was removed ' from the House. The Committee of Privileges considered the conduct of the petitioner and resolved to suspend him. The petitioner challenged the resolution in the High Court of Allahabad under Article 226 of the Constitution.

149. Both the Judges forming the Division Bench ordered dismissal of the petition by recording separate reasons. Sapru, J. conceded that withdrawal of a member from the House even for a brief period was a serious matter both for the member as well as for his constituency but disciplinary or punitive action for disorderly behaviour of a member could be taken. Mukherji, J. took the same view. His Lordship further held that 'the House is the sole Judge of its own privileges'.

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

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

152. The Court, however, negatived the contention. It observed that though Indian Legislature has no right to provide for its own composition nor for filling of vacancies in the House, nor to try election disputes, nevertheless it has power to expel a member for proper functioning, protection and self-preservation. The Court noted that as held by the Privy Council, even Colonial Legislatures have such power.

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

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

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

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

157. Regarding the main question as to the right of the Legislature to expel a member, it was admitted that Indian Legislature had no privilege to provide for its own composition, but it is no ground to deny the right to _,_ the House to expel a member as a means of punishment for misconduct; Referring to a series of cases, it was held that "independent of the power r \ __ RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 001 and privilege of the House of Commons to constitute itself it did have and exercised at the time of coming into force of our Constitution the power to expel its members by way of punishment for misconduct or for breach of privilege or for committing contempt of the House."

158. The majority, on the other hand, took a contrary view. Sandhawalia, J., considering historical development of law as to parliamentary privileges, observed: "In the context of an unwritten Constitution in England, the House of Commons has undoubtedly claimed and enjoyed the privilege of providing for and regulating its own Constitution from the very earliest times. This privilege in terms and in effect implies and includes all powers to control the composition of the House and to determine the identity of its membership."

159. Unfortunately, however, having held so, the majority adopted an incorrect approach thereafter. Though this Court in Keshav Singh held that the privilege enjoyed by the House of Commons in England in regard to its constitution had been expressed in three ways; namely: "(i) by the order of new writs to fill vacancies that arise in the Commons in the course of a Parliament; (ii) by the trial of controversial elections; and (iii) by determining the questions of its members in cases of doubt; " -the High Court (majority) added one more category (expulsion of a member) stating that the power of expulsion was another example (fourth category) of the power to the House to determine its own composition. c

160. Describing ancient English precedents as 'not only wasteful but dangerous', the majority concluded; "The uncanalised power of expulsion in the House of Commons stems from its ancient and peculiar privileges of determining its own composition which in tum arises for long historical reasons and because of the unwritten Constitution in England." (emphasis supplied)

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

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

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

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

165. 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.

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

167. When the provisions relating to powers, privileges and immunities of Parliament and State Legislatures were considered by the Constituent -x RAJA RAM PAL v_ THE HON'BLE SPEAKER, LOK SABHA [C_K_ THAKKER, J ] 003 _..,, 1 Assembly, conflicting views were expressed by the Hon'ble Members. One 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.

168. The relevant discussion throws light on different views expressed by the Members of Assembly. On May 19, 1949, when the matter came up for consideration, Shri Alladi Krishnaswami Ayyar stated: "Shri Alladi Krishnaswami A.war (Madras : General) : Sir, in regard to the article as it stands, two .objections have been raised, one based upon sentiment and the other upon the advisability of making a reference to the privileges of a House in another State with which the average citizen or the members of Parliament here may not be acquainted with. In the first place, so far as the question of sentiment is concerned, I might share it to some extent, but it is also necessary to appreciate it from the practical point of view. It is common knowledge that the widest privileges are exercised by members of Parliament in England. If the privileges are confined to the existing privileges of legislature in India as at present constituted, the result will be that a person cannot be punished for contempt of the House. The actual question arose in Calcutta as to whether a person can be punished for contempt of the provincial legislature or other legislatures in this country. It has been held that there is no power to punish for contempt any person who is guilty of contempt of the provincial or even the Central Legislature, whereas the Parliament in England has the inherent right to punish for contempt. The question arose in the Dominions and the Colonies and it has been held that by reason of the wide wording in the Australian Commonwealth Act as well as in the Canadian Act the Parliament in the both places have powers similar to the powers possessed by the Parliament in England and therefore have the right to punish for contempt. Are you going to deny to yourself that power? That is the question. I will deal with the second objection. If you have the time and if you have the leisure to formulate all the privileges in a compendious form, it will be well and good. I believe a Committee c [2007] I S.C.R constituted by the Speaker on the legislative side found very difficult to fonnulate all the privileges, unless they went in detail into the whole working of parliamentary institution in England and the time was not sufficient before the legislature for that purpose and accordingly the Committee was not able to· give any effective advice to the Speaker in regard to this matter. I speak subject to correction becau:;e I was present at one stage and was not present at a later stage. Under these circumstances I submit there is absolutely to question of infra dig. We are having the English language. We are having our Constitution in the English language side by side with Hindi for the time being. Why object only to refei:ence to the privileges in England? The other point is that there is nothing to prevent the Parliament from setting up the proper machinery for formulating privileges. The article leaves wide scope for it. "In other respects, the privileges and immunities of members of the Houses shall be such as may from time to time be defined by Parliament by law and, until so defined, shall be such as are enjoyed by the members of the House of Commons of the Parliament of the United Kingdom at the commencement of this Constitution". That is all what the article says. It does not in any way fetter your discretion. You may enlarge the privileges, you may curtail the privileges, you may have a different kind of privileges. You may start on your own journey without reference to the Parliament of Great Britain. There is nothing to fetter the discretion of the future Parliament of India. Only as a temporary measure, the privileges of the House of Commons are made applicable to this House. Far from it being infra dig, it subordinates the reference to privileges obtained by the members of Parliament in England to the privileges which may be conferred by this Parliament by its ·Own enactments. Therefore there is no infra dig in the wording of class (3). This practice has been followed in Australia, in Canada and in other Dominations with advantage and it has secured complete freedom of speech and also the omnipotence of the House in every respect. Therefore we need not fight shy ~f hnrrowing to this extent, when we are borrowing the English language and when we are using constitutional expressions which are common to England. RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J] 605 You are saying that it will be the same as those enjoyed by the members of the House of Commons. It is far from that. Today the Parliament of the United Kingdom is exercising sway over Great Britain, over the Dominions and others. To say that you are as good as Great Britain is not a badge of inferiority but an assertion of your own self-respect and also of the omnipotence of your Parliament. Therefore, I submit, Sir, there is absolutely no force in the objection made as to the reference to the British Parliament. Under these circumstances, far from this article being framed in a spirit of servility or slavery or subjection to Britain, it is framed in a spirit of self-assertion and an assertion that our country and our Parliament are as great as the Parliament of Great Britain."

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

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

171. I would like to refer to in particular the considerations weighed with the House in the speech ofHon'ble the President, Dr. B.R. Ambedkar, who said: "The privileges of Parliament extend, for instance, to the rights of Parliament as against the public. Secondly, they also extend to rights as against the individual members. For instance, under the House of Commons' power and privileges it is open to Parliament to convict any citizen for contempt of Parliament and when such privilege is exercised the jurisdiction of the court is ousted. That is an important privilege. Then again, it is open to Parliament to take action against any individual member of Parliament for anything that has been done by him which brings Parliament into disgrace. These are very grave matters-e.g., to commit to prison. the right to lack up a citizen for what parliament regards as contempt of itself is not an easy matter to define. Nor is it easy to say what are the acts and deeds of individual members which bring c Parliament into disrepute. " (emphasis supplied) He further stated: "Let me proceed. It is not easy, as I said, to define what are the acts and deeds which may be deemed to bring Parliament into disgrace. That would require a considerable amount of discussion and examination. That is one reason why we did not think of enumerating, these privileges and immunities. But there is not the slightest doubt in my mind and I am sure also in the mind of the Drafting Committee that Parliament must have certain privileges, when that Parliament would be so much exposed to calumny, to unjustified criticism that the parliamentary institution in this country might be brought down to utter contempt and may . lose all the respect which parliamentary institutions should have from the citizens for whose benefit they operate. I have referred to one difficulty why it has not been possible to categorise. Now I should mention some other difficulties which we have felt. It seems to me, if the proposition was accepted that the Act itself should enumerate the privileges of Parliament, we would have to follow three courses. One is to adopt them in the Constitution, namely to set out in detail the privileges and immunities of Parliament and its members. I have very carefully gone over May's Parliamentary Practice which is the source book of knowledge with regard to the immunities and privileges of Parliament. I have gone over the index of May's Parliamentary Practice and I have noticed that practically 8 or 9 columns of the index are devoted to the privileges and immunities of Parliament. So that if you were to enact a complete code of the privileges and immunities of Parliament based upon what May has to say on this subject, I have not the least doubt in my mind that we will have to add not less than twenty or twenty-five pages relating to immunities and privileges of Parliament. I do not know whether the Members of this House • !- RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] ffi7 would like to have such a large categorical statement of privileges and immunities of Parliament extending over twenty or twenty-five pages. That I think is one reason why we did not adopt that course. The other course is to say, as has been said in many places in the Constitution, that Parliament ·may make provision with regard to a particular matter and until Parliament makes that provision the existing position would stand. That is the second course which we could have adopted. We could have said that Parliament may define the privileges and immunities of the members and of the body itself, and until that happens the privileges existing on the date on which the Constitution comes into existence shall continue to operate. But unfortunately for us, as honourable Members will know, the 1935 Act conferred no privileges and no immunities on Parliament and its members. All that it provided for was a single provision that there shall be freedom Of speech and no member shall be prosecuted for anything said in the debate inside Parliament. Consequently that course was not open, because the existing Parliament or Legislative Assembly possess no privilege and no immunity. Therefore we could not resort to that course. The third course open to us was the one which we have followed, namely, that the privileges of Parliament shall be the privileges of the House of Commons. It seems to me that except of the sentimental objection to the reference to the House of Commons I cannot see that there is any substance in the argument that has been advanced against the course adopted by the Drafting Committee. I therefore suggest that the article has adopted the only possible way of doing it and there is no other alternative way open to us. That being so, I suggest that this article be adopted in the way in which we have drafted it. "

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

173. The aforesaid discussion clearly and unequivocally indicates that the Members of the Constitution wanted Parliament (and State Legislatures) c to retain power and privileges to take appropriate . action against any individual member for 'anything that has been done by him' which may (J()8 [2007] I S.C.R. bring Parliament or Legislative Assembly into 'disgrace'. In my opinion, therefore, it cannot be said that the Founding Fathers of the Constitution were not aware or never intended to deal with individual misdeeds of members and no action can be taken by the Legislature under Article I 05 or 194 of the Constitution. c

174. An authority on the 'Constitutional Law of India', (H.M. Seervai) pithily puts this principle in one sentence: "It is clear, therefore, that the privileges of the British House of Commons were not conferred on the Indian Legislatures in a fit of absent mindedness". (emphasis supplied) (Constitutional Law of India; Third Edn.; Vol. II; para 20-36) ORDER OF EXPULSION AND JUDICIAL REVIEW

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

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

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

178. In the middle of the nineteenth century, the conflict, to the large extent, had been resolved. Out of both the claims, (i) whether a privilege existed; and (ii) whether it had been breached, Parliament yielded the first i RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] (:IE to the courts. In turn, courts recognized right of the House to the second.

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

180. Then referring to three leading cases, (i) Ashby v. White, (1704) 14 St Tr 695; (ii) Stockdale v. Hansard, (1839) 9 Ad & E 1 : 112 ER 1112; and (iii) Bradlaugh v. Gossett, (1884) 12 QBD 271: 53 LJQB 200-the author concluded: "On the whole, it seems now to be clearly settled that the Courts will not be deterred from upholding private rights by the fact that questions of parliamentary privilege are involved in their maintenance; and that, except as regards the internal regulation of its proceedings by the House, Courts of Law will not hesitate to inquire into alleged privilege, as they would into custom, and determine its extent and application."

181. In Halsbury 's Laws of England, (4th Edition, Reissue, Vol. 34; pp. 553-54; paras 1004-05), it has been stated: "1004. The position of the courts of law. Each House of Parliament has traditionally claimed to be the sole and exclusive judge of its own privilege and of the extent of that privilege. The courts of law accept the existence of privileges essential to the discharge of the functions of the two Houses. In 1939, all the privileges required for the energetic discharge of the Commons' trust were conceded by the court without a murmur or doubt; and over 150 years later, the Privy Council confirmed that the courts will not allow any challenge to be made to what is said or done within the walls of Parliament in perfonnance of its legislative functions and protection of its established privileges. On the other hand, the courts take the view that it is for them to determine whether a parliamentary claim c c (2007] I S.C.R. to privilege in a particular case falls within that area where what is claimed is necessary to the discharge of parliamentary functions or internal to one or other of the Houses, in which case parliamentary jurisdiction is exclusive, or whether it falls outside that area, especially if the rights of third parties are involved, where the courts would expect to form their own judgments. I 005. Limits of agreement regarding jurisdiction. In spite of the dualism of jurisdiction between the Houses of Parliament and the courts of law, the current measure of agreement on the respective spheres of the two Houses and the courts has, since the mid- nineteenth century, prevented the direct conflicts of earlier years. Although the Houses have never directly admitted the claim of the courts of law to adjudicate on matters of privilege, they appear to recognize that neither House is by itself entitled to claim the supremacy wl;iich was enjoyed by the undivided High Court of Parliament. For their part the courts of law acknowledge that the control of each House over its own proceedings is absolute and not subject to judicial jurisdiction; and the courts will not interfere with the interpretation of a statute by either House so far as the proceedings of the House are concerned. Neither will the courts inquire into the reasons for which a person has been adjudged guilty of contempt and committed by either House, when the order or warrant upon which he has been arrested does not state the causes of his arrest; for in such cases it· is presumed that the order or warrant has been duly issued unless the contrary appears upon the face of it." 181A. Holdsworth, in 'A History of English Law' (Vol. I; pp. 393-94) rightly observed: "There are two maxims or principles which govern this subject. The first tells us that "Privilege of Parliament is part of the law of the land;" the second that "Each House is the judge of its own privileges." Now at first sight it may seem that these maxims are contradictory. If privilege of Parliament is part of the law of the. "'f RAJA RAM PAL 1·. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 611 land its meaning and extent must be interpreted by the courts, just like any other part of the law; and therefore neither House can add to its privileges by its own resolution, any more than it can add to any other part of the law by such a resolution. On the other hand, if it is true that each House is the sole judge of its own privileges, it might seem that each House was the sole judge as to whether or no it had got a privilege, and so could add to its privileges by its own re.solution. This apparent contradiction is solved if the proper application of these two maxims is attended to. The first maxim applies to cases like Ashby v. White; [1704[ 14 St Tr 695 and Stockdale v. Hansard; [1839] 9 Ad & E 1 : 112 ER 1112 in which the question at issue was the existence of a privilege claimed by the House. This is a matter of law which the courts must decide, without paying any attention to a resolution of the House on the subject. The second maxim applies to cases like that of the Sheriff of Middlesex; [ 1840] 11 Ad & E 2 73 : 113 ER 419 and Bradlaugh v. Gosset; [1884] 12 QBD 271 : 53 LJQB 200, in which an attempt was made to question, not the existence, but the mode of user of an undoubted privilege. On this matter the courts will not interfere because each House is the sole judge of the question whether, when, or how it will use one of its undoubted privileges." c

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

183. It may be stated that initially it was contended by the respondents that this Court has no power to consider a complaint against any action taken by Parliament and no such complaint can ever be entertained by the Court. Mr. Gopal Subramaniam, appearing for the Attorney General, however, at a later stage conceded (and I may say, rightly) the jurisdiction of this Court to consider such complaint, but submitted that the Court must always keep in mind the fact that the power has been exercised by a co-ordinate organ of the State which has the jurisdiction to regulate its own proceedings within the four walls of the House. Unless, therefore, this Court is convinced that the action of the House is unconstitutional or wholly unlawful, it may (2007] I S.C.R. not exercise its extraordinary jurisdiction by re-appreciating the evidence and material before Parliament and substitute its own conclusions for the conclusions arrived at by the House.

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

185. The principle has been succinctly stated by Sir John Donaldson, M.R. in R. v: Her Majesty's Treasury, ex parte Smedley, 1985 QB 657, 666 thus: "It ……. behoves the courts to be ever sensitive to the paramount need to refrain from trespassing on the province of Parliament or, so far as this can be avoided, even appearing to do so. " (emphasis supplied) IND/AN PARLIAMENT HAS NO DUAL CAPACITY

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

187. In this connection, I may only observe that in Searchlight as well as in Keshav Singh, it has been observed that there is no doubt that Parliament/State Legislature has power to punish for contempt, which has been reiterated in other cases also, for instance, in State of Karnataka v. Union nf India, [1977] 4 SCC 608, and in P. V. Narasimha Rao v. State, ,· …. + ,,. ….. ' -· _ RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA (C.K THAKKER, .I.] 613 [I 998] 4 sec 626. But what has been held is that such decision of Parliament/ State Legislature is not 'final and conclusive'. This Court in all earlier cases held that in view of power of judicial review under Articles 32 and 226 of the Constitution, the Supreme Court and High Courts have jurisdiction to decide legality or otherwise of the action taken by State-authorities and that power cannot be taken away from judiciary. There lies the distinction between British Parliament and Indian Parliament. Since British Parliament is also 'the High Court of Parliament', the action taken or decision rendered by it is not open to challenge in any court of law. This, in my opinion, is based on the doctrine that there cannot be two parallel courts, i.e. Crown's Court and also a Court of Parliament ('the High Court of Parliament') exercising judicial power in respect of one and the same jurisdiction. India is a democratic and republican State having a written Constitution which is supreme and no organ of the State (Legislature, Executive or Judiciary) can claim sovereignty or supremacy over the other. Under the said Constitution, power of judicial review has been conferred on higher judiciary (Supreme Court and High Courts). The said power is held to be one of the 'basic features' of the Constitution and, as such, it cannot be taken away by Parliament, even by an amendment in the Constitution. [ Vide Sambamurthy v. State of A.P, [1987] 1 SCC 362: AIR (l 987) SC 663; Kesavananda Bharti v. State of Kera/a, [1973] 4 SCC 225 : AIR (1973) SC 1461; Indira Nehru Gandhi v. Raj Narain, [1975) Supp SCC I : AIR (1975) SC 2299; Minerva Mills Ltd. v. Union of India, [1980] 3 SCC 625 : AIR (1980) SC 1789; L. Chandra Kumarv. Union a/India, [1987] 1SCC124: [1987] I SCC 124: [1987] I SCR 435, Kihoto Hollohon v. Zachilhu, (1992] Supp 2 SCC 651 : AIR (1993) SC 412]. c

188. It has, therefore, been held in several cases that an action of Parliament/State Legislature cannot claim 'total immunity' from judicial review. In fact, this argument had been put forward in Keshav Singh which was negatived by this Court. It was opined that an aggrieved party may invoke the jurisdiction of the High Court under Article 226 or of the Supreme Court under Article 32 of the Constitution. That, however, does not mean that while exercising extraordinary jurisdiction urider the Constitution, the powers of the courts are absolute, unlimited or unfettered. The Constitution which conferred power of judicial review on the Supreme Court and High Courts, with the same pen and ink provided that the validity of proceedings in Parliament cannot be called in question on the ground of 'irregularity in procedure'. It is, therefore, the duty of this Court to give effect -to the said [2007] I S.C.R. provision and keeping in view the limitation, exercise the power of judicial review.

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

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

191. I am unable to uphold the contention. As already discussed earlier, every legislative body-Colonial or Supreme-possesses power to regulate its proceedings, power of self-protection, self-preservation and maintenance of discipline. It is totally different and distinct from the power to provide the constitution or composition which undoubtedly not possessed by Indian Parliament. But every legislative body has power to regulate its proceedings and observance of discipline by its members. In exercise of that power, it can suspend a member as also expel him, if the circumstances warrant or call for such action. It has nothing to do with disqualification and/ or vacation of seat. In fact, a question of expulsion arises when a member is not disqualified, his seat has not become vacant and but for such expulsion, he is entitled to act as a member of Parliament. . .. RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.] 615 PARLIAMENT HAS NO CARTE BLANCHE POWER

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

193. It was then contended that the impugned actions taken by Lok Sabha and Rajya Sabha are illegal and unconstitutional. It was stated that the immunity granted by clause (l) of Article 122 of the Constitution ('Courts not to inquire into proceedings of Parliament') has been made expressly limited to 'irregularity of procedure' and not to substantive illegality or unconstitutionality. If the action taken or order passed is ex facie illegal, unlawful or unconstitutional, Parliament cannot take shelter under Article 122 and prevent judicial scrutiny thereof. Neither ad hoc Committees have been contemplated by the Constitution nor such committees nave power to inquire into conduct or misconduct of Members of Parliament. All proceedings, therefore, have no legal foundation. They were without [2007] I S.C.R. jurisdiction or lawful basis and are liable to be ignored altogether. c

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

195. Dealing with the amendment and jurisdiction of Courts, Dr. B.R. Ambedkar stated (CAD: Vol.VIII; pp. 199-201): "With regard to the amendment of Mr. Karnath, I do not think it necessary, because where can the proceedings of Parliament be questioned in a legal manner except in a Court? Therefore, the only place where the proceedings of Parliament can be questioned in a legal manner and legal sanction obtained is the Court." (emphasis supplied)

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

197. In Keshav Singh also, this Court reiterated the above proposition p of law and stated; "Art. 212(1) makes a provision which is relevant. It lays down that the validity of any proceedings in the Legislature o_f a State shall not be called in question on the ground of any alleged irregularity of procedure. Art. 212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Art. 212(1) seems to make it possible for a citizen to call in question in the appropriate court ; — .. i RAJA RAM PAL r. THE HON'BLE SPEAh.ER. LOK SABHA [CK THAKKFR. J.] 617 of law the va'lidity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the imp11gned proced11re is illegal and 11nconstit11tional, it 1ro11ld be open to he scrutinised in a c:ourt of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. " (emphasis supplied) [See also Kihoto Hollohan v. Zachil/hu & Ors., [1992] Supp 2 SCC 651, 711].

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

199. In my view, the submission of the respondents deserves acceptance. Taking into account serious allegations against some of the members of the House, Parliament decided to inquire into correctness or otherwise of the charges by constituting an 'Inquiry Committee'. The members were asked to offer their explanation and considering the evidence and material on record, the Committee appointed by Parliament decided the matter. It, therefore, cannot be said that the case is covered by exceptional part of clause (1) of Article 122. It cannot be overlooked that this Court is exercising power of 'judicial review', which by its nature limited to serious infirmities of law or patent illegalities. It cannot, therefore, enter into sufficiency of material before the authority nor can substitute its own opinion/finding/ decision for the opinion/finding/decision arrived at by such authority. Hence, even if there is any irregularity in adopting the procedure or in appreciating evidence by the Committee or in approving the decision by Parliament, it squarely falls under the 'protective umbrella' of Article 122(1) of the Constitution and this Court cannot interfere with the decision in view of the constitutional protection granted by the said provision. c [2007] l S.C.R.

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

201. In this connection, it is profitable to refer to Mudgal. In that case also, a Committee was appointed to inquire into charges leveled against a member of Parliament. Certain directives were issued to the Committee. Directive No.2 issued by the Speaker was relevant and read thus: "The Committee on the Conduct of a Member that has been constituted is a Court of Honour and not a Court of Law in the strict sense of the term. It is therefore not bound by technical rules. It has to mould its procedure so as to satisfy the ends of justice and ascertain the true facts of the case. In Courts of Law, excessive cross-examination eventually turns into a battle of wits and that should not be the atmosphere of a Court of Honour. Here the effort should be to simplify the procedure and to lay down clear rules which ensure ascertainment of Truth, fairplay and justice to all concerned. ! am, therefore, of opinion that normally the questions should be put by the Chairman and the Members but that does not mean that the counsel appearing in the case is debarred from putting any questions whatsoever. It is open to the Committee in the light of particular circumstances, of which they alone are the best judges, to permit the counsel to put questions to a witness with the permission of the Chairman. I feel that this should meet the requirements of the present case." (emphasis supplied) OBSERVANCE OF NATURAL JUSTICE

202. It was also urged that the Committee had not given sufficient opportunity to the petitioners to defend them and had not complied with the principles of natural justice and fair play. It was submitted that the doctrine of natural justice is not merely a matter of procedure but of substance and any action taken in contravention of natural justice is violative of fundamental rights guaranteed by Articles 14, 19 and 21 of the Constitution. Reference > .. …….. • .> -; RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J.l 619 in this connection was made to Maneka Gandhi v. Union of India, [1978] 1 SCC 248 : AIR (1978) SC 597; Kihoto Holohan and other decisions.

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

204. So far as the Committee constituted by the Lok Sabha is concerned, it stated: "JV Findings and Conclusions 32. The Committee viewed the VCDs comprising the relevant video footage aired on the 'Aaj Tak' TV Channel on 12 December, 2005, perused the transcripts thereof, considered the written statements submitted by each of the said ten members and their oral evidence and also the oral evidence of Shri Aniruddha Bahal, Kumar Badal and Ms. Sushasini Raj of Cobrapost.Com who conducted the 'Operation Duryodhan'. 33. The Committee note that the concerned representatives of the Portal Cobrapost.Com namely Shri Aniruddha Bahal, Ms. Suhasini Raj and Shri Kumar Badal approached the members posing as representatives of a fictitious company, through a number of middlemen, some of whom were also working as Private Secretaries/ Personal Assistants of the members concerned. They requested the members to raise questions in Lok Sabha and offered them money as a consideration thereof. Money was accepted by the members directly and also through their Private Secretaries. They deposed on oath that in the money sequences shown on TV Channel Aaj Tak there was no misrepresentation. They .have also given to the Committee the raw footage covering the situation before and after c the scene in question. While the Aaj Tak clippings have gone through video cleaning and sound enhancement, corresponding c (20011 1 s:c.R thereto are extended versions of unedited raw footage of the tapes to make it apparent that nothing had been misrepresented. Besides this Shri Aniruddha Bahal also . submitted the "Original tapes of money acceptance of whatever length the incident it may be". There are 20-25 tapes and the total footage pertains to money acceptance. Each tape is a complete tape showing the whole incident. In 'the course of her evidence Ms. Suhasini Raj has given the details of the money given to the MPs directly as also through the middlemen. 34. As against this evidence are the statements of all the said ten members. The Committee note that all the members have denied the allegations leveled against them. The common strain in their testimony is that the clippings are morphed, out of context and a result of 'cut and paste'. The clippings of a few minutes, they averred, do not present full victure and they needed full tapes including the preceding and sµcceeding scenes to prove what they termed as the falsehood thereof. They claimed that the entire exercise was aimed to trap them and lower the prestige of the Parliament. 35. The Committee have given serious consideration to the requests made by the ·said members for being provided the full footage of video recordings, all the audio tapes and their request for extension of time and being allowed to be represented through their counsels. In this context the Committee would like to bring it on record that all the ten members while deposing before the Committee were asked whether they would like to view the relevant video footage so that they could point out the discrepancies therein if any. All the members, refused to view the relevant video footage. The Committee, therefore, feel that the requests by· the members for unedited and entire video footage would only lead to delaying the consideration of the matter and serve no useful purpose. 36. The Committee having given in-depth consideration to the evidence and statements of the representatives of Cobrapost.com and the members, are of the view that the evidence against the i RAJA RAM PAL 1·. THE HON'BLE SPEAKER. LOK SABHA [C.K. THAKKER. J.] 621 members is incriminating. The Committee note that the Cobrapost.com representatives gave their statement on oath and would be aware of the consequences of makir.g any false or incorrect statement. They have also supplied the unedited copies of original video situations where money changed hands. Transcripts of the said videos have also been supplied. Had the Cobrapost.com been reluctant in supplying the original unedited video tapes there could have been scope for some adverse inference about the authenticity of the "money sequences" as telecast by Aaj Tak. But that is not so. 37. The Committee are also of the view that the plea put forth by the said ten members that the video footages are doctored/ morphed/edited has no merit. If the members had accepted the offer of the Committee to view the relevant footage and pointed out the interpolated portions in the tape, there would have been justification for allowing their plea for more time for examining the whole tapes. Having seen the unedited raw footage of the Cobrapost.com pertaining to some of the members, the Committee have no valid reason to doubt the authenticity of the video footages. 38. In view of the totality of the facts and circumstances of the case, the Committee are of the opinion that the allegations of accepting money by the said ten members have been established. The Committee further note that it is difficult to escape the conclusion that accepting money had a direct connection with the work in Parliament. 39. The Committee feel that such conduct of the said members was unbecoming of members of Parliament and also unethical. The Committee are, therefore, of the view that their conduct calls for strict action. 40. The Committee feel that stem action also needs to be taken against the middlemen, touts and persons masquerading as Private Secretaries of members since they are primarily responsible for inducing members to indulge in such activities. 41. The Committee note that in the case of misconduct or contempts committed by its members, the House can impose these c [2007] I S.C.R punishments: admonition, reprimand, withdrawal from the House, suspension from the service of the House, imprisonment, and expulsion frpip tpe ~ouse." The Committee, according to me, rightly made the following observations: "V Observations 42. The Committee feel that credibility of a democratic institution like Parliament and impeccable integrity of its members are imperative for the success of any democracy. In order to maintain the highest traditions in parliamentary life, members of Parliament are expected to observe a certain standard of conduct, both inside the House as well as outside it. It is well recognised that conduct of members should not be contrary to the Rules or derogatory to the dignity of the House or in any way inconsistent with the standards which Parliament is entitled to expect of its members. 43. The Committee wish to emphasise that ensuring probity and standards in public life is sine qua non for carrying credibility with the public apart from its own intrinsic importance. The waning confidence of the people in their elected representatives can be restored through prompt action alone. Continuous fight against corruption is necessary for preserving the dignity of the country. The beginning has to be made with holders of high public offices as the system is, and ought to be, based on morality. When the Committee say so, they are also aware of and wish to put on record that a large number of leaders spend their life time in self-less service to the public. 44. The Committee find it pertinent to note the following observations made by the Committee of Privileges of Eleventh Lok Sabha in their Report on 'Ethics, Standards in PubliC Life, Privileges, Facilities to members and related matters': "Voicing the constituents' concerns on the floor of the Houst! is the primary parliamentary duty of an elected representative. Any attempt to influence members by improper means in their parliamentary conduct is a breach of privilege. Thus, offering to a RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [C.K. THAKKER, J] 623 member a bribe or payment to influence him in his conduct as a member, or any fee or reward in connection with the promotion of or opposition to, any Bill, resolution, matter or things submitted or intended to be submitted to the House or any Committee thereof, should be treated as a breach of Code of Conduct. Further, any offer of money, whether for payment to an association to which a member belongs or to a charity, conditional on the member taking up a case or bringing it to a successful conclusion, is objectionable. Offer of money or other advantage to a member in order to induce him.to take up an issue with a Minister may also constitute a breach of Code. Similarly, acceptance of inducements and gratification by members for putting questions in the House or for promotion of or opposition to any Bill, resolution or matters submitted to the House or any Committee thereof involves the privileges and contempt proceedings. The privilege implications apart, the Committee is constrained to observe that such attempts and acts are basically unethical in nature." c 45. The Committee are, therefore, deeply distressed over acceptance of money by members /or raising parliamentary questions in the House, because it is by such actions that the credibility of Parliament as an institution and a pillar of our democracy is eroded. " (emphasis supplied) 205. The Committee accordingly recommended (by majority of 4 : 1) expulsion of all the ten members from the membership of Lok Sabha. 206. The recommendation was accepted by the House and consequential notification was issued on December 23, 2005 expelling all the members from Lok Sabha with effect from afternoon of December 23, 2005. 207. So far as Rajya Sabha is concerned, the Committee on Ethics recorded a similar finding and observed that it was convinced that the member had accepted money for tabling questions in Rajya Sabha and the pleas raised by him in defence were not well-founded. The Committee rightly stated: c (2007] I S.C.R. "Parliamentary functioning is the very basis of our democratic structure upon which the whole constitutional system rests. Anything, therefore, that brings the institution of parliament into disrepute is extremely unfortunate because it erodes public confidence in the credibility of the institution and thereby weaken the grand edifice of our democratic polity." The Committee then observed: "The Committee has applied its mind to the whole unfortunate incident, gave full opportunity to the Member concerned to make submissions in his defence and has also closely examined witnesses from Cobrapost.Com and Aaj Tak. The Committee has also viewed the video tapes and heard the audio transcripts more than once. After taking all factors into consideration, the overwhelming and clinching evidence that the member has, in fact, contravened para 5 of the code of conduct for members of the Rajya Sabha and having considered the whole matter in depth, the committee, with great sadness, has come to the conclusion that the member has acted in a manner which has seriously impaired the dignity of the house and brought the whole institution of parliamentary democracy into disrepute. The Committee therefore recommend that Dr. Chhattrapal Singh Lodha be expelled from the membership of the House as his conduct is derogatory to the dignity of the House and inconsistent with the code of conduct which has been adopted by the House." 208. The Committee thus recommended expulsion of Dr. Lodha. One member of the Committee suggested (clarifying that it was not a 'dissent note'), to seek opinion of this Court under Article 143( I) of the Constitution. 209. The House agreed with the recommendation and expelled Dr. Lodha. A notification was issued on December 23, 2005 notifying that Dr. Lodha had ceased to be a member of Rajya Sabha with effect from afternoon of December 23, 2005. ISSUE: WHETHER PRE-JUDGED 21 O. One of the grievances of the petitioners is that the issue had already been pre-judged even before a Committee was appointed by • -+ RA.IA RAM PAL"· THE HON'BLE SPEAKER, LOK SABHA [CK. THAKKER . .I] 625 Parliament. In support of the said complaint, the counsel drew the attention of the Court to a statement by the 1-lon'ble Speaker of Lok Sabha on December 12, 2005: "Nobody would be spared". 211. An attempt was made that the Hon 'ble Speaker, even before the constitution of Committee had proclaimed that the petitioners would not be s;:iared. Appointment of Committee, consideration of allegations and recording of findings were, therefore, in the nature of an 'empty formality' to 'approve' the tentative decision taken by the Hon'ble Speaker and for that reason also, the action is liable to be interfered with by this Court. 212. In my opinion, the contention has no force. The petitioners are not fair to the Hon'ble Speaker. They have taken out one sentence from the speech of Hon'ble Speaker of Lok Sabha and sought to create an impression as if the matter had already been decided on the day one. It was not so. The entire speech wherein the above sentence appears is part of the Report oi the Committee and is on record. It reads thus: "Hon. Members, certain very serious events have come to my notice as also of many other hon. Members. It will be looked into with all importance it deserves. I have already spoken to and discussed with all Hon. Leaders of different Parties, including the Hon. Leader of the Opposition and all have agreed that the matter is extremely serious if proved to be correct. I shall certainly ask the hon. Members to explain what has happened. In the meantime, I am making a personal request to all of them 'please do not attend the Session of the House until the matter is looked into and a decision is taken' …. I have no manner of doubt that all sections of the House feel deeply concerned about it. I know that we should rise to the occasion and we should see that such .an event does not occur c ever in future and if anybody is guilty, he should be punished. Nobody would be spared. We shall certainly respond to it in a manner which behoves as. Thank you very much." (emphasis supplied) 213. It is thus clear that what was stated by the Hon'ble Speaker was that "if anybody is guilty, he would be punished. Nobody would be spared". In other words, an assurance was given by the Hon'ble Speaker to the members of august body that an appropriate action will be taken without considering the position or status of an individual member and if he is found guilty, he will not be spared. The statement, in my judgment, is a responsible one, expected of the Hon'ble Speaker of an august body of the largest democracy. I, therefore, see nothing in the above statement from which it can be concluded that the issue had already been decided even before the Committee was constituted and principles of natural justice were violated. CASH FOR QUERY: WHETHER MERE MORAL WRONG 214. It was also urged that taking on its face value, the allegations agajnst the petitioners were that they had accepted money for tabling of questions in Parliament. Nothing had been done within the four walls of the House. At the most, therefore, it was a 'moral wrong' but cannot fall within the mischief of 'legal wrong' so as to empower the House to take any action. According to the petitioners, 'moral obligations' can neither be converted into 'constitutional obligations' nor non-observance thereof would violate the scheme of the Constitution. No action, therefore, can be taken even if it is held that the allegations were well-founded. 215. I am unable to uphold the contention. It is true that Indian Parliament is not a 'Court'. It cannot try anyone or any case directly, as a court of justice can, but it can certainly take up such cases by invoking its jurisdiction concerning powers and privileges. 216. Dealing with 'Corruption or impropriety', Sir Erskine May stated: "The acceptance by a Member of either House of a bribe to influence him in his conduct as a Member, or of any fee, compensation or reward in connection with the promotion of or opposition to any bill, resolution, matter or thing submitted or intended to be submitted to either House, or to a committee, is a contempt. Any person who is found to have offered such a corrupt consideration is also in contempt. A transaction of this character is both a gross affront to the dignity of the House concerned and an attempt to pervert the parliamentary process implicit in Members' free discharge of their duties to the House and (in the case of the Commons) to the electorate". RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [CK THAKKER . .I] 627 217. Hilaire Burnett, ('Constitutional and Administrative law', Fourth Edn.; pp.571-72) also refers to "Cash for questions", which started in 1993. lt was alleged that two members of Parliament, Tim Smith and Neil Hamilton received payments/gifts in exchange for tabling parliamentary questions. Both of them had ultimately resigned. 218. The rapidly accelerating and intensifying atmosphere of suspected corruption-sleaze-in public life caused the Prime Minister to appoint a judicial inquiry into standards of conduct in public life. 219. The author also observed; "The cash for questions affair also raises issues concerning the press". 220. The Committee went into the allegations against the officers of Parliament and recommended punishment. It criticized the role of the Press as well, but no action had been taken against the newspaper. 221. Solomon Commission and Nolan Committee also considered the problem of corruption and bribery prevailing in the system and made certain suggestions and recommendations including a recommendation to clarify the legal position as to trial of such cases. c 222. I may state that I am not expressing ar,y opinion one way or the other on the criminal trial of such acts as also the correctness or otherwise of the law laid down in P. V. Narsimha Rao. To me, however, there is no doubt and it is well-settled that in such cases, Parliament has power to take up the matter so far as privileges are concerned and it can take an appropriate action in accordance with law. If it feels that the case of 'Cash for query' was made out and it adversely affected honesty, integrity and dignity of the House, it is open to the House to attempt to ensure restoration of faith in one of the pillars of democratic polity. 223. I am in agreement with what has been stated by Mc Lachlin, J. (as she then was) in Fred Harvey, already referred to: "If democracies are to survive, they must insist upon the integrity of those who seek and hold public office. They cannot tolerate . corrupt practices within the legislature. Nor can they tolerate electoral fraud. lf they do, two consequences are apt to result. First, [2007] I S.C.R. the functioning of the legislature may be impaired. Second, public confidence in the legislature and the govemmentmay be undermined. No democracy can afford either". (emphasis supplied) DOCTRINE OF PROPORTIONALITY 224. It was contended that expulsion of a member of Parliament is a drastic step and even if the House possesses such power, it cannot be lightly restored to. It is against the well established principle of proportionality. According to the petitioners, such a step would do more harm to the constituency than to the member in his personal capacity. It was, therefore, submitted that proper exercise of power for misbehaviour of a member is to suspend him for the rest of the day, or at the most, for the remaining period of the session. If a folly has been committed by some members, the punishment may be awarded to them but it must be commensurate with such act which should not be severe, too harsh or unreasonably excessive, depriving the constituency having its representation in the House. 225. Now, it cannot be gainsaid that expulsion of a member is a grave measure and normally, it should not be taken. I also concede that Palriament could have taken a lenient view as suggested by the learned counsel for the petitioners. But it cannot be accepted as a proposition of law that since such action results in deprivation of constituency having its representation in the House, a member can never be expelled. Ifrepresentation of the constituency is taken to be the sole consideration, no action can be taken which would result in absence of representation of such constituency in the House. Such interpretation would make statutory provisions (the RepresP.ntation of the People Act, 1951) as also constitutional scheme (Articles 84, 102, 190, 191, 192, Tenth Schedule, etc.) non-workable, nugatory and otiose. If a member is disqualified or has been convicted by a competent court, he has to go and at least for the time being, till new member is elected, there is no representation of the constituency in the House but it is inevitable and cannot be helped. 226. There is one more aspect also. Once it is conceded that an action of suspension of a member can be taken (and it was expressly conceded), r ., r RAJA RAM PAL"· THE HON'BLE SPEAKER, LOK SABHA [CK THAKKER, J] 629 I fail to undc stand why in principle, an action of expulsion is impossible or illegal. In a given case, such action may or may not be lawful or called for, but in theory, it is not possible to hold that while the former is permissible, the latter is not. If it is made referable to representation of the constituency, then as observed in Raj Narain, withdrawal of a member from the House even for a brief period is a serious matter both for the member and his constituency. Important debates and votes may take place during his absence even if the period be brief and he may not be able to present his view-point or that of the group or that of the constituency he represented . It is, however, in the nature of disciplinary or punitive action for a specific parliamentary offence, namely, disorderly behaviour. Moreover, ifthe House has a right to expel a member, non-representation of the constituency is merely a consequence, nothing more. "If the constituency goes unrepresented in the Assembly as a result of the act of an elected member inconsistent with the dignity and derogatory of the conduct expected of an elected member, then it is the voters who alone will have to take the blame for electing a member who indulges in conduct which is unbecoming of an elected representative". POSSIBILITY OF MISUSE OF POWER BY PARLIAMENT 227. Finally, it was strenuously urged that Parliament/ State Legislature should not be conceded such a drastic power to expel a member from the House. As Maintland has stated, it is open to Parliament to expel a member on the ground of 'ugly face'. Even in such case, no Court of Law can grant relief to him. Considering ground-realities and falling standards in public life, such an absolute power will more be abused than exercised properly. 228. I am unable to accept the submission. Even in England, where Parliament is sovereign and supreme and can do everything but 'make woman a man and a man a woman', no member of Parliament has ever been expelled on the ground of 'ugly face'. And not even a single incident has been placed before this Court to substantiate the extreme argument. Even Maitland himself has not noted any such instance. On the contrary, he had admitted that normally, the power of expulsion can be exercised for illegalities or misconduct of a serious nature. 229. Again, it is well-established principle oflaw that the mere possibi\ity or likelihood of abuse of power does not make the provision ultra vires or [2007] I S.C.R bad in law. There is distinction between existence (or availability) of power and exercise thereof. Legality or otherwise of the power must be decided by considering the nature of power, the extent thereof, the body or authority on whom it has been conferred, the circumstances under which it can be exercised and all other considerations which are relevant and germane to the c exercise of such power. A provision of law cannot be objected only on the ground that it is likely to be misused. 230. In State of Rajasthan v. Union of India, [1977] 3 SCC 592, 658 : AIR (1977) SC 1361 dealing with an identical contention, Bhagwati, J. (as His Lordship then was) stated: "It must be remembered that merely because power may some time be abused, is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief'. (emphasis supplied) [see also Ajit Kumar Nag v. Indian Oil Corporation, [2005] 7 SCC 764]. 231. I am reminded what Chief Jllstice Marshall stated before about two centuries in Providence Bank v. Alphens Billings, 29 US 504 [1830]: 7 Law Ed939: "This vital power may be abused; but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the State Governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents furnish the only security where there is no express contract against unjust and excessive taxation, as well as against unwise legislation generally. " (emphasis supplied) CONCLUDING REMARKS 232. I have already held that the decisions taken, orders made, findings recorded or conclusions arrived at by Parliament/State Legislature are RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [CK THAKKER. J] 631 subject to judicial review, albeit on limited grounds and parameters. If, therefore, there is gross abuse of power by Parliament/ State Legislature, this Court will not hesitate in discharging its d1:1ty by quashing the order or setting aside unreasonable action. 233. I am reminded what Justice Sarkar stated in Keshav Singh: "I wish to add that I am not one of those who feel that a Legislative Assembly cannot be trusted with an absolute power of committing for contempt. The Legislatures have by the Constitution been expressly entrusted with much more important things. During the fourteen years that the Constitution has been in operation, the Legislatures have not done anything to justify the view that they do not deserve to be trusted with power. I would point out that though Art. 211 is not enforceable, the Legislatures have shown an admirable spirit of restraint and have not even once in all these years discussed the conduct of Judges. We must not lose faith in our people, we must not think that the Legislatures would misuse the powers given to them by the Constitution or that safety lay only in judicial correction. Such correct may produce friction and cause more harm than good. In a modem State it is often necessary for the good of the country that parallel powers should exist in different authorities. It is not inevitable that such powers will clash. It would be defeatism to take the view that in our country men would not be available to work these powers smoothly and in the best interests of the people and without producing friction. I sincerely hope that what has happened will never happen again and our Constitution will be worked by the different organs of the State amicably, wisely, courageously and in the spirit in which the makers of the Constitution expected them .to act". 234. I am in whole-hearted agreement with the above observations. On my part, I may state that I am an optimist who has trust and faith in both these august units, namely, Legislature and Judiciary. By and large, constitutional functionaries in this country have admirably performed their functions, exercised their powers and discharged their duties effectively, efficiently and sincerely and there is no reason to doubt that in coming years also they would continue to act in a responsible manner expected of them. I am equally confident that not only all the constituents of the State will keep (2007] 1 S.C.R. themselves within the domain of their authority and will not encroach, trespass or overstep the province of other organs but will also act in preserving, protecting and upholding the faith, confidence and trust reposed in them by the founding Fathers of the Constitution and by the people of this great country by mutual regard, respect and dignity for each other. On the whole, the situation is satisfactory and I see no reason to be disappointed for future. 235. With the above observations and pious hope, I dismiss the Writ Petition as also all transferred cases, however, without any order as to costs. RA VE END RAN, J.: "Those three great institutions – the Parliament, the Press (Media) and the Judges – are safeguards of justice and liberty, and they embody the spirit of the Constitution." – Lord Denning have had ·the privilege of reading the exhaustive and erudite judgment of the learned Chief Justice and the illuminating concurring judgment of learned brother Thakker J., upholding the expulsion of ten members of Lok Sabha and one member of Rajya Sabha. I respectfully disagree. Factual Background : 2. On 12.12.2005, a TV News Channel -Aaj Tak showed some video- footage of scime persons, alleged to be members of Parliament accepting money for tabling questions or raising issues in the House, under the caption 'operation Duryodhana' ("Cash for Questions"). On the same day when the House met, the Hon'ble Speaker made the following statement :- "Hon. Members, certain very serious events have come to my notice as also of many other Hon. Members. It will be looked into with all importa~e it deserves. I have already spoken to and discussed with all Hon. Leaders of different parties, including the Hon. Leader of the Opposition, and all have agreed that the matter is extremely serious if proved to be correct. I shall certainly ask the I 1• . … RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 633 Hon. Members to explain what has happened. In the meantime, I am making a personal request to all them 'please do not attend the Sessions of the House until the matter is looked into and a decision is taken'……. I have no manner of doubt that all sections of the House feel deeply concerned about it. I know that we should rise to the occasion and we should see that such an event does not occur ever in future and if anybody is guilty, he should be punished. Nobody would be spared. We shall certainly respond to it in a manner which behaves us. Thank you very much." 3. On the same day, at about 6 P.M., the Hon'ble Speaker made another statement on the issue, announcing the constitution of an Enquiry Commit- tee consisting of five Parliamentarians. Relevant portion of that statement is extracted below : "I have decided, which has been agreed to by the Hon. Leaders, that all the concerned Members will be asked to submit their individual statements/explanations regarding the allegations made against them today on the TV Channel Aaj Tak before 10.30 a.m. on 14th December, 2005. The statements/explanations given by those members will be placed before the Enquiry Committee con- sisting of the following Hon. Members – 1. Shri Pawan Kumar Bansal (Chairman) Prof. Vijay Kumar Malhotra 3. Md. Salim 4. Prof. Ram Gopal Yadav 5. Thiru C. Kuppusami The Committee is requested to give its Report by 4 p.m. on 21st December, 2005. The Committee is authorized to follow its own procedure. The Report will be presented before the House for its consideration. " 4. 'fhe Lok Sabha Secretariat sent communications dated 12.12.2005 to the ten members calling for their comments in regard to the improper conduct [2007] I S.C.R. shown in the video footage. They were also instructed not to attend the sitting of the House till the matter was finally decided. The members submitted their responses and denied any wrong doing on their part. The Speaker secured VCDs containing the video footage showing 'improper conduct' from the News Channel. The ten members were supplied copies thereof. The Enquiry Committee examined on oath Shri Aniruddha Bahl, Ms. Suhasini Raj and Shri Kumar Badal of the Portal "Cobrapost.Com" who had carried the sting operation. The Committee viewed all the VCDs containing the relevant video footage as also the unedited raw video footage and perused the transcripts. The ten members alleged that the video tapes were morphed/manipulated, but, however, refused to view the video clippings in the presence of the Committee and point out the portions which according to them were morphed/manipulated. They were not given any opportunity to cross-examine the sting operators, nor granted copies of the entire unedited video footage and other documents requested by them. 5. After considering the said material, the committee submitted its report dated 22.12.2005 to the Speaker. It was tabled in the House on the same day. The said report contained the following findings : "(a) The representatives of the Portal "Cobrapost.com" namely Shri Aniruddha Bahal, Ms. Suhasini Rajand and Shri Kumar Badal approached the members posing as representatives of the fictitious company, through a number ofmiddlerr:en, some of whom were working as Private Secretaries/Personal Assist- ants of the members concerned. They requested the members to raise questions in Lok Sabha and offered them money as consideration. Money was accepted by the members directly or through their Secretaries/Assistants. Acceptance of money by the ten members was thus established. (b) The plea put forth by the ten members that the video footages were morphed/manipulated has no merit. Their conduct was unbecoming of members of Parliament, unethical and called for strict action. (c) Stern action also needs to be taken against the middlemen, touts and persons masquerading as Private Secretaries of members since they are primarily responsible for inducting members of Parliament into such activities. I 1 .. i RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 635 The Committee was of the view that in the case of misconduct by the members or contempt of the House by the members, the House can impose any of the fortowing punishments : (i) admonition; (ii) reprimand; (iii) withdrawal from the House; (iv) suspension from the House; (v) imprison- ment; and (vi) expulsion from the House. The Committee concluded that continuance of the ten persons as members of Lok Sabha was untenable and recommended their expulsion." On 23.12.2005, the Leader of the House moved the following Motion in the House: "That this House having taken note of the Report of the Committee to inquire into the allegations of improper conduct on :he part of some members, constituted on 12th December, 2005, accepts the finding of the Committee that the conduct of the ten members of Lok Sabha namely, Shri Narendra Kumar Kushawaha, Shri Annasaheb M. K. Patil, Shri Manoj Kumar, Shri Y. G. Mahajan, Shri Pradeep Gandhi, Shri Suresh Chandel, Shri Ramsevak Singh, Shri Lal Chandra Kol, Shri Rajaram Pal and Shri Chandra Pratap Singh was unethical and unbecoming of members of Parliament and their continuance as members of Lok Sabha is untenable and resolves that they may be expelled from the membership of Lok Sabha." An amendment to the Motion for referring the matter to the Privileges Committee, moved by a member (Pro£ Vijay Kumar Malhotra), was rejected. After a debate, the Motion was adopted by voice vote. As a consequence on the same day, a notification by the Lok Sabha Secretariat was issued notifying that 'consequent on the adoption of a Motion by the Lok Sabha on the 23rd December, 2005 expelling the ten members from the membership of the Lok Sabha', the ten members ceased to be members of the Lok Sabha, with effect from the 23rd December, 2005 (afternoon).' 7. Similar are the facts relating to Dr. Chhattrapal Singh Lodha, Member of Rajya Sabha. On 12. 12.2005, the Chairman of the Rajya Sabha made a statement in the House that the dignity and prestige of the House had suffered a blow by the incidents shown on the TV Channel, that it was necessary to take action to maintain and protect the integrity and credibility c [2007] I S.C.R. of the House, and that he was referring the episode to the Ethics Committee for its report. On the same day, Ethics Committee held a meeting and took the view that the member had prima facie contravened Part V of the Code of Conduct which provided : "Members should never expect or accept any fee, remuneration or benefit for a vote given or not given by them on the floor of the House, for introducing a Bill, for moving a resolution or desisting from moving a resolution, putting a question or abstaining from asking a question or participating in the deliberations .of the house or a Parliamentary Committee." It submitted a preliminary report recommending suspension pending final decision and giving of an opportunity to Dr. Lodha to explain his position. The said report was accepted. By letter dated 13.12.2005. Dr. Lodha was required to give his comments by l P.M. on 15.12.2005. Thereafter the Committee gave a report holding that the member had contravened Part V of the Code of Conduct and had acted in a manner which seriously impaired the dignity of the Hous.e and brought the whole institution of Parliamentary democracy into disrepute. The Committee recommended Dr. Lodha to be expelled from the membership of the House. On 23.12.2005, the Chairman of the Ethics Committee moved that its final report be accepted. After debate, the House agreed with the recommendation in the report by voice vote. As a consequence, the ~ecretary General of Rajya Sabha issued a notification dated 23.12.2005 declaring that Dr. Lodha had ceased to be a member of the Rajya Sabha with effect from that date. The Issue: 8. The petitioners contend that there can be cessation of membership of either House of Parliament only in the manner provided in Articles 101 and 102; and that cessation of membership by way of expulsion is alien to the constitutional framework of Parliament. It is submitted that a person can be disqualified for being a member of Parliament on the ground of corrup- tion, only upon conviCtion for such corruption as contemplated under section 8 of Representation of People Act, 1951 read with clause ( 1 )( e) of Article 102. It is submitted that there can be no additions to grounds for cessation of membership under Articles 10 l and 102, unless it is by a law made by Parliament as contemplated under Article 102(l)(e), or by an t .. RAJA RAM PAL r. THE HON'BLE SPEAKER, LOK SAHHA [RA VEENDRAN, J] 637 amendment to the Constitution itself. It is further submitted that reading the power of expulsion, as a part of parliamentary privilege under Article l 05(3) is impermissible. It is, therefore, submitted that Parliament has no power of expulsion (permanent cessation of membership). On the other hand, the Union of India and the Attorney General assert that Parliament has such power. The assertion is based on two premises. First is that Article 10 l relating to vacancies is not exhaustive. The Second is that the power of Parliament to expel a member is a part of the powers, privileges and immunities conferred on the Parliament, under Article 105(3), and it is distinct and different from 'disqualifications' contemplated under Article 102. 9. When the incident occurred, the response of the Hon. Speaker and the Parliament, in taking prompt remedial action, against those who were c seen as betraying the confidence reposed by the electors, showed their concern to maintain probity in public life and to cleanse Parliament of elements who may bring the great institution to disrepute. But, howsoever bona fide or commendable the action is, when it is challenged as being unconstitutional, this Court as the interpreter and Guardian of the Constitution has the delicate task, nay the duty, to pronounce upon validity of the action. There is no question of declining to or abstaining from inquiring into the issue merely because the action is sought to be brought under the umbrella of parliamentary privilege. The extent of parliamentary power and privilege, and whether the action challenged is in exercise of such power and privilege, are also matters which fall for determination of this Court. In this context, I may usefully refer to the words ofBhagwati, J. (as His Lordship then-was) in State of Rajasthan v. Union of India, AIR (1977) SC 1361: "But merely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution if it raises an issue of constitutional determination …… ., the Court cannot fold its hands in despair and declare "Judicial hands off." So long as a question arises whether an authority under the constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so …… This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and c [2007] I S.C.R. if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the consti- tutional values and to elz/orce the constitutional limitations. That is the essence of the rule of law." Where there is m"an.ifestly unauthorized exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of Government, is committed the conservation and furtherance of democratic values. The Court's task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Court ….. The Court cannot and should not shirk this responsibility …. " [emphasis supplied] IO. The question before us is not whether the petitioners are guilty of ·having taken money for asking questions, or raising issues in the Parliament The question is, irrespective of whether they are guiltj or not, Parliament t has the power to expel them, thereby effecting permanent cessation of their membership. On the contentions raised, the questions that therefore arise for consideration are : "(i) Whether Article I 0 I and I 02 are exhaustive in regard to the modes of cessation of membership of Parliament; and whether expulsion by the House, not having been specified as a mode of cessation of membership, is impermissible. (ii) If the an~wer to the . above question is in the negative, whether.the Parliament has the power to expel its members (resulting in permanent cessation of membership) as a part of its powers, privileges and immunities under Article 105(3)." · G Relevant Principles : 11. I may first refer to the basic principles relevant for the purpose of constitutional interpretation in the context of the first question .. l Unlike British Parliament, Indian Parliament is not saver- _, RAJA RAM PAL•- THE HON'BLE SPEAKER. LOK SABHA [RA VEENDRAN, J J 639 eign It is the Constitution which is supreme and sovereign and Parliament will have to act _within, the limitotions imposed by the Constitution : 12. There is a marked distinction between British- Parliament and the – Indian Parliament Briiish Parliament is sovereign. One of the hallmarks of such sovereignty is the right to make or_ unmake any Jaw which no court or body or person can set aside or override. _On the other hand, the Indian Parliament is a creature of the Constitution and its powers, privileges and_ obligations are spe_cified and limited by· the <;:onstitution. A legislature created by a written Constitution must act within the ambit of its power as defined by the Constitution and subject to the limitations prescribed by the Constitution. Any act or action of the Parliament contrary to the constitu- tional limitations will be void. 13. In re Art. 143, Constitution of India and Delhi laws Act, AIR ( 1951) SC 332, this Court observed thus : – "There is a basic difference !-Je~een ~ Indian and the British Parliament in this respect: There is no constitutional limitation to restrain the British Parliament from assigning its powers where it will, but the Indian Parliament qua legislative body is fettered by _a written constitution and it does not possess the sovereign powers of the British Parliament. The limits of the powers of delegation inJndia would therefore have to be ascertained as a maller of construction from the provisions of the_ Constitution itself-'.' {emphasis supplied] In Special Reference No.I of 1964 UP Assembly Case, [1965) I SCR 413; a Bench of seven Judges observed thus : "Jn England, Parliament is sovereign; and in the words of Dicey, the th_ree distinguishing features of the principle of_Parliamentary Sov- -ereignty -are that Parliament has the right to make or unmake any law whatever; that no person or body is recognized by the Jaw of England is having a right to override or set aside the legislation of Parliament; and that the right or power of P;.,liament extends to .H c .E (2007] I S.C.R. every part of the Queen's dominion. On the other hand, the essential characteristic of federalism· i~ "the distribution of limited executive, legislative and judicial authority among bodies which are co-ordinate with and independent of each others". The supremacy of the constitution is fundamental to· the existence of a federal State in order to prevent either the legislature of the federal unit or those of. the member States from destroying or impairing that delicate balance of power which satisfies the particular require- ments of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the consti- tution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers. "Therefore, it is necessary to remember that though our Legisla· tures have plenary powers, they function within the limits pre- scribed by the material and relevant provisions of the Constitution …. Jn a democratic country governed by a written Constitution, it is the Constitution which is supreme and soverelgn…. Therefore, there can be no doubt that the sovereignty which can be claimed by the Parliament in England, cannot be claimed by any Legislature in India in the literal absolute sense …. We feel no difficulty in holding that the decision about the construction of Article 194(3) must ultimately rest exclusively with the Judicature of this country." "Article 212(1) seems to make it possible for a citizen to call in question in the appropriate court oflaw the validity of any proceed- ings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitu- tional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular." [emphasis supplied] Jn Kesavananda Bharati v. State of Kera/a, [1973] 4 SCC 225, it was observed that the Constitution being supreme, all the organs owe their _ _, existence to it. Each organ has to. function within the four comers of the ~/ – r RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 641 constitutional provisions. The doctrine of parliamentary sovereignty as it obtains in England does not prevail in India except to the extent provided by the Constitution. The judiciary is entrusted the task of construing the provisions of the Constitution and safeguarding the fundamental rights. Subsequently, in State of Rajasthan (supra), this Court reiterated : "It is necessary to assert in the clearest terms, particularly in the context of recent history, that the Constitution is supreme lex, the paramount law of the land, and there is no department or branch of Government above or beyond it. Every organ of Government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. " [emphasis supplied] In Sub-Committee on Judicial Accountability v. Union of India, [1991] 4 SCC 699, a Constitution Bench of this Court held : "But where, as in this country and unlike in England, there is a written Constitution which constitutes the fundamental·apd in that sense a "higher law" and acts as a limitation upon the legislature and other organs of the State as grantees under the constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of 'limited government'. Judicial. Review is, indeed, an incident of and flows from this concept of the fundamen- tal and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authority under the Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State. It is to be noted that the British Parliament with the Crown is supreme and its powers are unlimited and courts have no power of judicial review of legisla- tion." "In a federal set up, the judiciary becomes the guardian of the Constitution…. The interpretation of the Constitution as a legal c instrument and its obligation is the function of the Courts." c II. When a Statute, having made specific provisions for certain matters, also incorporates by reference an earlier statute, to avoid reproduction of the matters provided for in the earlier statute, then what is .deemed to f?e incorporated by such reference, are only those provisions of the earlier statute which relate to matters not expressly provided in the latter statute, and which are com- patible with the express provisions of the latter statute. " 14. The legislative device of incorporation by reference is a well-known device where the legislature, instead of repeating the provisions of a particular statute in another statute, incorporates such provisions in the latter statute by reference to the earlier statute. It is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier statute into the later. [See MaJy Roy v. State of Kera/a, [1986] 2 SCC 209]. lord Esher M. R. stated the effect of incorporation in Clarke v. Bradlaugh, (1881) (8) QBD 63] thus:- "If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act as if they had been actually written in it with the pen-, or printed on it." 15. In UP. Assembly case (supra), this Court while considering Article 194(3), identical in content to Article 105(3) of the <;:onstitution, referred to its scope thus : "Mr. Seervai's argument is that the latter part of Art. 194(3) expressly provides that all the powers which vested in the House of Commons at the relevant time, vest in the House. This broad claim, however, cannot be accepted in its entirety, because there are some powers which cannot obviously be claimed by the House. Take the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker "to have at all times the right to petition, counsel, or remonstrate with their Sovereign through their chosen representative and have a favour- able construction placed on his words was justly regarded by the Commons as fundamental privilege." It is hardly necessary to point out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder and the privilege of impeachment .,..,. t- RAJA RAM PAL l'. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 643 cannot be claimed by the House. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of a Parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualification of its members in cases of doubt. This privilege again, admittedly, cannot be claimed by the House. There- fore, it would not be correct to say that all power and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House." 16. In Chhabildas Mehta v. The Legislative Assembly, Gujarat State, 1970 Guj. LR 729, a Division Bench of Gujarat High Court speaking through Chief Justice Bhagwati (as he then was) held : "The problem before us is whether the privilege can be read in Article 194(3). It is no answer to this problem to say 'read the privilege in Article 194(3) and then harmonise it with the other provisions'. If the privilege is inconsistent with the scheme of the Constitution and its material provisions, it cannot and should not be read in Article 194(3). The presumed intention of the Consti- tution-makers in such a case would be that such a privilege should c not belong to the House of the Legislature." [Emphasis supplied] 17. In Hardwari Lal v. The Election Commission of India, (1977) 2 Punj. & Har. 269, the validity of expulsion of a member of legislature came up for consideration. After an elaborate discussion, the majority found that the power of British House of Commons, to expel any of its members, flowed from its privilege to provide for and regulate its own constitution. It was held that such power of expulsion was not available to the Indian Parliament, having regard to the fact that the written constitution makes detailed provision for the constitution of the Parliament, elections, vacation of seats and disqualifications for membership. Sandhawalia, J. (as he then was) speaking for the majority of the Full Bench observed thus : "It was submitted that in view of the language of Article 194(3) each and every parliamentary privilege enjoyed by the House of H c [2007] I S.C.R. Commons without any exception whatsoever must be deemed as if it were in fact written with pen and ink into the Constitution itself. According to the respondents, one must at the outset unreservedly read every power, privilege and immunity of the House of Com- mons within clause (3) and consequently exercisable by the State Legislatures in India as well. However, having done that, one should thereafter proceed to scrutinize the remaining provisions of th1 Constitution and if some power, privilege or immunity directly conflicts with or contravenes some express or special provision thereof then the same may be eroded on the ground that it is not possible for the House to exercise the same. Nevertheless it was dogmatically stated that even in the case of a direct or irreconciliable conflict, the privilege must be read into the Constitution and should not be deemed as necessarily deleted or excluded therefrom. In short, the learned Advocate-General for a while canvassed for the acceptance of what may be conveniently called as 'pen and ink theory' for the construction of Article 194(3) of the Constitution. (23 7) On the other hand, the petitioner forthrightly argued that some of the parliamentary privileges of the House of Commons by their very nature are so inherently alien to our Republican Consti- tution that they can never possibly be deemed to be part thereof…. It was submitted that the only reasonable and consistent canon of construction in this situation was that all the parliamentary privi- leges of the House of Commons which in their very essence and by their intrinsic nature were patently contradictory to the Indian Constitution, then these must necessarily be excluded therefrom at the very threshold. (238) I believe, that the fallacy of the argument on behalf of the respondent is highlighted, the moment one particularizes the same and refers to some of the well-known and admitted privileges of the House of Commons. It was conceded before us that not one but innumerable parliamentary powers and privileges of the House of Commons were inextricably linked with the Sovereign, that is, King or Queen of England, as the case may be. Can one imagine that the word 'King' or 'Queen' mentioned therein should be deemed to have been written in pen and ink in our Constitution also when its very preamble solemnly declares that the people of India have – .., RAJA RAM PAL v. THE HON'BLE SPEAKER. LOK SABHA [RA VEENDRAN, J.] 645 constituted themselves into a Sovereign, Socialist Secular Demo- cratic Republic ? In particular, one may consider the accepted parliamentary privilege of the freedom of access to the Sovereign including a right at all times to petition, counsel or remonstrate with the King through their chosen representatives. This is admitted on all hands to be a parliamentary privilege which was considered fundamental by the House of Commons and undoubtedly enjoyed by it. Can one for a moment conceive that the Republican Consti- tution o(India would incorporate this privilege for its State Legis- latures. How can even one imagine that the founding fathers in the Constituent Assembly had intended to write such a privilege also into our Constitution and to deem it as part and parcel thereof? If so, to whom were the State Legislatures supposed to petition and with whom were they to counsel or remonstrate with through their chosen representative.s in_ the obvious absence of even the insti- tution of the Monarchy herein ? (239) Similarly not one but there are tens of parliamentary privileges of the House of Commons which are closely linked with the hereditary House of Lords in England. In particular the power of the House of Lords to punish the contemners of the House by passing judgment as a Court was undoubted. Can one read or even imagine a House of Lords within our polity when the very Constitution it~elf djsapproves even a rnference to any titles on the basis of heredity and blood alone? Other examples of this nature could perhaps be multiplied ad infinitum but it would perhaps suffice to mention two other undoubted privileges of the House of Commons. It is not in dispute that the said House had a relatively unrestricted power of impeachment whereby it acted as the prosecutor whilst the House of Lords was the final Court or adjudicator for the same. Would it be possible to assume within our Constitution any .such general parliamentary privilege of impeachment (apart from those which the Constitution in tenns confers) or by analogy to place the Rajya Sabha in the peculiar historical position which the House of Lords as the final Court in England? Again closely inter-related to this general power of impeachment in the House of Commons was c the privilege to pass Acts or Attainder which in terms and effect meant an unrestricted right to pass judgment during the course of impeachment. Can one for a moment read such a power or privilege c in favour of the State Legislatures in India? (240) I am of the view that it is essentially tautologous to first read something into the Constitution and in the next breath to proceed to erase the same. This exercise becomes inevitable, if, as sug- gested on behalf of the respondents, one is to first read the King, the Queen, the House of Lords or the Acts of Attainder into the Constitution and thereafter to proceed to nullify them on the plain ground that by the very nature of things they cannot form part of a Republican Constitution. The pen and ink theory, therefore, in effect becomes indeed a pen, ink and India Rubber theory whereby one first writes something entirely alien to the Constitution within it and the next moment proceeds to rub it off. ft is well-settled that when a statute includes something in it by a reference to another provision then only that can be deemed to be included which is compatible with the parent provision. To my mind, therefore, the plain method of construing Article 194(3) is the usual and the settled one of not reading something into it which is glaringly anomalous, unworkable and irrational. " [emphasis supplied] Ill. Decisions of foreign courts, though useful to understand the different constitutional philosophies and trends in law, as also common law principles underlying Indian Statutes, are of limited or no assistance in interpreting the special provisions of Indian Constitution, dissimilar to the provisions of foreign constitutions. 19. Constitution of India differs significantly from Constitutions of other countries. It was made in the background of historical, social and economic problems of this country. Our Constitution-makers forged solu- tions and incorporated them. They made exhaustive provisions relating to Executive, Legislature, and Judiciary with checks and balances. While making specific and detailed provisions regarding Parliament, the Constitu- tion also earmarked the areas where further provisions could be made by the Parliament by law. On the other hand, the Constitution of England is unwritten and flexible. The distribution and regulation of exercise of governmental power has not been reduced to writing. Further British Parliament was, at one time, also the highest court of justice and because ,…. j j RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 64'7 of it, regarded as a superior court of record, with all its attendant trappings. United States has a short and rigid Constitution, expounded considerably by courts. Indian Constitution is exhaustive and sufficiently expounded by the Constitution makers themselves. In fact, with 395 Articles and 12 Schedules, it is the longest among world's Constitutions. 20. In Re. the C.P. and Berar Sales of Motor Spirit & Lubricants Taxation Act, 1938 – the Central Provinces case AIR (1939) FC 1, the Federal Court observed thus : "for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting and since no two Constitutions are in identical terms .• it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This may be so even where the words or expressions used are the same in both cases, for a word or phrase may take a colour from its context and bear different senses accordingly." fn MP. V. Sundaramier & Co. v. State of Andhra Pradesh, AfR (1958) SC 468, this Court cautioned : "the threads of our Constitution were no doubt taken from other Federal Constitutions but when they were woven into the fabric of our Constitution their reach and their complexion underwent changes. Therefore, valuable as the American decisions are as showing how the question is dealt with in sister Federal Constitu- tion great care should be taken in applying them in the interpreta- tion of our Constitution." The note of caution was reiterated in Atiabari Tea Co. Ltd. v. State of Assam, AIR (1961) SC 232 and Automobile Transport Ltd. v. State of Rajasthan, AIR (19.62) SC 1406, UP.Assembly case (supra), and several other subsequent decisions. Provisions of Indian Constitution : 21. Chapters I, II and IV of Part V relate to Executive, Parliament and Union Judiciary. Detailed reference is necessary to the provisions of Chapter II dealing with Parliament. [2007) I S.C.R. 21. l) Article 79 relates to Constitution of Parliament and provides that c there shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People. Article 80 provides that the composition of Council of States shall be made up of twelve members nominated by the President and not more than 238 representatives of the States and Union Territories. It also provides that the representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State. Article 81 relates to composition of Lok Sabha and provides that Lok Sabha shall consist of not more than 530 members chosen by direct election from territorial constituencies in the States and not more than 20 members to represent the Union Territories, chosen in such manner as Parliament may by law provide. Article 83 prescribes the duration of Houses of Parliament. Relevant portions thereof are extracted below : "83. Duration of Houses of Parliament.- (1) The Council of States shall not be subject to dissolution, but as nearly as possible one- third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. (2) The House of the People, unless soone; dissolved, shall continue for [five years] from the date appointed for its first meeting and no longer and the expiration of the said period of [five years] shall operate as a dissolution of the House. : Article 85 provides for the sessions of Parliament, prorogation of the Houses and di~solution of the House of the people. 21.2) Article 84 enumerates the qualifications for membership of Parlia- ment. Article 102 deals with disqualifications for membership. Clause (1) of Article 102 provides that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament : "a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by 'Parliament by law not to disqualify its holder; tr- r· 't .. RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA (RA YEEND RAN, J] 649 b) if he is of unsound mind and stands so declared by a competent court; c) if he is an undischarged insolvent; d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledge- ment of allegiance or adherence to a foreign State; e) if he is so disqualified by or under any law made by Parlia- ment." Clause (2) of Article 102 provides that a person shall be disqualified for being a member of either House of Parliament, if he is so disqualified under the Tenth Schedule. 21.3) Article 10 I deals with vacation of seats. Clause (I) thereof bars a person being a member of both Houses of Parliament, and requires the Parliament to make a provision by law for the vacation by a person who is chosen as member of both Houses, of his seat in one House or the other. Clause (2) bars a person from being a member both of Parliament and of a House of the Legislature of a State. It provides that if a persori is chosen as a member both of Parliament and of a House of the Legislature of a State, then at the expiry of such period as may be specified in the rules made by the President, that person's seat in Parliament shall become vacant unless he has previously resigned his seat in the Legislature of the State. Clause (3 ), which is relevant, reads thus : "(3) If a member of either House of Parliament – a) becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of Article 102; or c b) resigns his seat by writing under his hand addressed to the Chairman or Speaker, as the case may be, and his resignation is accepted by the Chairman or the Speaker, as the case may be, his seat shall thereupon become vacant." Clause ( 4) provides that if for a period of 60 days, a member of either House of Parliament is without pennission of the House absent from all meetings thereof, the House may declare his seat vacant. c 21.4) Article l 03 relates to decision on questions as to disqualifications of members. It is extracted below : "103. Decision on questions as to disqualifications of members : (1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of article 102, the question shall be referred for the decision of the President and his decision shall be final. (2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion. " Corresponding provisions in regard to the State Legislatures are found in Articles 168, 170, 171, 172, 174, 173, 191, 190 and 192 of the Constitution. 21.5) It is to be noted expulsion is not mentioned as a mode of cessation of membership of the Parliament under the Constitution. Nor does it give rise to a vacancy. 21.6) Article 105 deals with powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof. Clauses (1) to (3) which are relevant, extracted below : "I 05. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof- (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in 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 ……. RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 651 either House of Parliament of any report, paper, votes or proceed- in gs. (3) Jn other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) ~t, 1978. " The corresponding provision in regard to State Legislatures and its mem- bers, is Article 194. The words "shall be those of the House and of its members and C.:lmmittees immediately before coming into force of section 15 of Constitution (Forty Forth Amendment) Act, 1978" in clause (3) of Articles 105 and 194 have replaced the earlier words "shall be those of the House of Commons of Parliament of the United Kingdom, and of its members and Committees, at the commencement of the Constitution". The position even after amendment is the same as the position that existed at the commence- ment of the Constitution. 21.7) The other provisions of Chapter II, relating to Parliament also require to be noticed. Article I 06 relates to salaries and allowances of members. Arti~les 86 to 88 relate to the rights of the President, Ministers and Attorney General to address the Houses. Articles _89 to 98 relate to the officers of Par-liament. Article 99 provides fQ!: oath of office and Article 100 provides for voting in Houses. Articles \07\ to 111 relate to legislative proced~re. Article l 07 contains the pro~s as to introductiQn and passing of Bills. Article I 08 relates to joint sitting of both Houses in certain cases. Article l 09 relates to special procedure in· respect of Money Bills. Article 110 defines "Money Bills". Article 111 requires the presentatton-of Bills passed by the Houses of Parliament to the President for his~ent. Articles 112 to 117 relate to the procedure in financial matters. Article 112 relates to annual financial statement. Article 113 relates to the procedure with respect to estimates. Article 114 relates to appropriation bills. Article 115 relates to supplementary, additional or excess grants. Art-icle 116 relates to votes on account, votes of credit and exceptional grants. Article 117 contains special provisions as to financial bills. Articles 118 to 122 govern the rules of procedure generally to be adopted by the Houses of Parliament. (2007) 1 S.C.R. Article 118 enables each House of Parliament to make rules for regulating, subject to the provisions of the Constitution, its procedure and the conduct of its business. Article 119 relates to regulation by Ia~ of procedure in Parliament in relation to financial business. Article 120 relates to the language to be used in Parliament. Article l 21 places a restriction on discussion in Parliament (in regard to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge). Article 122 bars courts from inquiring into proceedings of Parliament and it is extracted below: "122. Courts not to inquire into proceedings of Parliament.-{l) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. (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." 22. We have referred in detail to the various provisions to demonstrate that as far as the Indian Constitution is concerned, Chapter II of Part V is a complete Code in regard to all matters relating to Parliament. It provided for every conceivable aspect of Parliament. It contains detailed provisions in regard to the constitution of Parliament, composition of Parliament, sessions, prorogation and dissolution of Parliament, Officers of Parliament, duration of the Houses of Parliament, qualifications for membership, dis· qualifications for being chosen as, and for being members, vacancies of seats, decision on questions of disqualification, powers, privileges and immunities of the Parliament, its Members and Committees, manner of conducting business, the procedure to be adopted by the Parliament in regard to the enactment of laws, persons who can address the Parliament, the language to be used, and the Officers of the Parliament. The entire field in regard to the legislature is covered fully in the following manner : RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN,J.] 653 "Subject (Parliament) (State Legislature) Articles Articles Constitution & Composition of 79 to 82 168tol71 Houses and election/nomination of members Duration of Houses and Tenure of Office of Members Sessions, Prorogation and dissolution c Qualification for Membership Cessation of wembership 102, 101 & 103 192, 190 & 192 (Disqualifications for being chosen as, and for being a member, and vacancies) and decision on questions of disqualification Powers, privileges and immunities 105, 122 & 106 194, 212 & 195 of the Legislature, members and Committees, and salaries & allowances Restriction on Powers Offices of Legislature 89 to 98 178 to 187 Rules of Procedure and Language 118, 119& 120 208, 209 & 210 Legislative Procedure and Conduct 107 to 111 196 to 201 of Business 112 to 117 202 to 207 99 & 100 188 & 189 Persons who can address 86 to 88 175to177 the Parliament 23. The Constitution also makes express provisions for cessation of H [2007] I S.C.R. tenure of office or removal of every constitutional functionary referred to in the Constitution. I will refer to them briefly : "(i) Article 61 refers to the procedure for impeachment of Presi- dent. Clause (4) of Article 61 provides that if the resolution is passed by a majority of not less than two-third of the Members of the House declaring the charge against the President has been sustained, such resolution shall have the effect of removing the President from the office. (ii) Clau~e (b) of Article 67 deals with the term of office of Vice c President and provides for removal of Vice President from office by a resolution of Council of States passed by majority of all the then members of the Council and agreed to by the House of People. (iii) Article 75(2), Article 76(4) and Article 156(1) refer to the Ministers, Attorney General and Governor holding office during the pleasure of the President. (iv) Article 124 provides that no Judge of Supreme Court shall be removed from his office except by an order of President passed after impeachment. Articles 148 and 324 provide that the Comptroller & Auditor General of India and the Chief Election Commissioner shall not be removed from their office except in like manner and on like grounds of a Judge of the Supreme Court. (v) Article 3 I 5 read with Article' 3 I 7 provides how a Chairman or a Member of a Public Service Commission can be removed from office." Similarly provisions are made in regard to cessation/termination of tenure of office or removal of all constitutional functionaries with reference to the States. Article I 56(1) relates to Governor, Article 164( I Y relates to Ministers, Article I 65(3) relates to Advocate General, Article 179 relates to Speaker and Deputy Speaker, Article 183 relates to Chairman and Deputy Chairman of Legislative Council, Articles 190 to 192 relate to Members of Legislatures and Article 217 relates to High Court Judges. ~ _, RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.] 655 Whether 1Articles JOI and 102 are exhaustive of the circumstances in which there will be cessation of membership ? 24. The word 'disqualified' means to 'make ineligible' or debarred. It also means divested or deprived of rights, powers or privileges. The term 'expel' means to deprive a person of the membership or participation in any 'body' or 'organization' or to forcibly eject or force a person to leave a building premises etc. The enumeration of disqualifications is exhaustive and specifies all grounds for debarring a person from being continuing as a member. The British Parliament devised expulsion as a part of its power to control its constitution, (and may be as a part of its right of self-protection and self-preservation) to get rid of those who were unfit to continue as members, in the absence of a written Constitutional or statutory provision for disqualification. Historically, therefore, in England, 'expulsion' has been used in cases where there ought to be a standing statutory disqualification from being a Member. Where provision is made in the Constitution for disqualifications and vacancy, there is no question of exercising any inherent or implied or unwritten power of 'expulsion'. 25. A person cannot be disqualified unless he suffers a disqualification enumerated in Article I 02. Article I 02 refers to 6 types of disqualifications: c "(i) If he holds any office of profit, vide Article 102(l)(a); (ii) If he is of unsound mind and stands so declared, vide Article 102(l)(b); (iiI) If he is an undischarged solvent, vide Article 102(l)(c); (iv) Ifhe is not a citizen of India, vide Article 19l(l)(d); (v) If he is disqualified by or under any law made by Parliament. (vi) If he is disqualified under the Tenth Schedule, vide Article 102(2)." Disqualifications have also been prescribed by the Parliament in the Repre- sentation of People Act, 1951 as contemplated under Article ~02(l)(e). The grounds of disqualifications under the said Act are c "(i) if he is convicted and sentenced for any offence as provided/ enumerated in Section 8 of the Act; (ii) if he is found guilty of corrupt practices by an order under Section 99 of the Act vide Section 8-A of the Act; (iii) if he is dismissed for corruption or for disloyalty to the State, vide Section 9 of the Act; (iv) ifhe has a subsisting contract with the appropriate Government for the supply of goods to or for the execution of any works, vide Section 9-A of the Act; (v) ifhe is a managing agent, manager or secretary of any company or corporation, in which the appropriate Government has a share, vide Section 10 of the Act; (vi) if he is a person who has been declared as disqualified by the Election Commission, vide Section 10-A of the Act." The Constitution thus expressly enumerates certain grounds of disqualifica- tion (sub-clauses (a) to (d) of clauses (1) and (2) of Article 102). It has also pennitted the Parliament to add disqualifications, by making a law. Passing a resolution by one House, is not of course, making a Jaw. 26. In the case of Members of Parliament, the Constitution has consciously used the word disqualification, both for 'being chosen as a member' and for 'being a member'. That means that when a member becomes disqualified as mentioned in Article 102, he becomes disentitled to continue as a Member of the House. 27. Article -101 specifically provides the circumstances in which a seat of Member of Parliament becomes vacant – "(a) when a person is member of both Houses of Parliament; (b) when a person is elected both as a Member of Parliament and also as a Member of the State Legislature, and does not resign his seat in the legislature of a State within the time specified; t RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA VEENDRAN, J.) 657 (c) when a person becomes subject to any of the disqualifica- tions mentioned in clause (I) or clause (2) of Article I02; (d) when he resigns his seat and his resignation is accepted. (e) when a member is absent from all meetings for a period of 60 days without permission of the House and the House declares his seat as vacant. " 28. An analysis of Article IOI shows that the Constitution makers provided specifically for three types of vacancies : "(i) Occurrence of vacancies, for reasons specifically stated in the Constitution itself (vide clauses (2) and (3) of Article IOI). (ii) Occurrence of vacancies, to be provided by a law made by the Parliament (vide clause (I) of Article IO I). (iii) Occurrence of vacancy, on a declaration by the House (vide clause (4) of Article IOI). " c If the Constitution makers wanted a vacancy to occur on account of 'expulsion' on a decision or declaration by the House, they would have certainly provided for it, as they have provided for vacancy on the ground of unauthorized absence, arising on a declaration by the House under clause (4) of Article 101. The Constitution makers did not contemplate or provide for any cause, other than those mentioned in Article I 0 l, for giving rise to a vacancy. Thus a seat held by a Member of Parliament does not become vacant, in any manner, other than those stated in Article IO 1. 29. One argument advanced to contend that Article IOI cannot be considered as exhaustive as to the circumstances in which vacancy occurs in respect of a seat in the Parliamentary, was that it does not provide for vacation of seat by death of a Member. Article I 0 I refers to vacation of seat by a 'person' who is a member of the House, that is, a person who is alive. When a person is dead, obviously he is not a Member of the House. It would be absurd to contend that a person even after death will continue to hold the seat. The obvious effect of death did not require to be stated and therefore the non-mention of death as a ground for vacancy does not make [2007] I S.C.R. Article 10 l any less exhaustive. 30. Articles 102 and I 01 together include all circumstances in which a membership comes to an end and the seat becomes vacant. The Constitution does not contemplate or provide for the membership of an MP coming to an end in any manner other than what is specifically provided in Articles 101 and 102. Therefore there cannot be cessation of membership, de hors Articles 101 and 102, by 'expulsion' or otherwise. Conclusions : 31. The Constitution-makers have made detailed and specific provi- sions regarding the manner in which a person becomes a Member of Parliament (elected/nominated), the duration for which he continues as a member and the mann.er in which he ceases to be a member and his seat becomes vacant. Therefore neither the question of election or nomination, nor tenure, nor cessation/termination of membership of the House covered by the express provisions in the Constitution, can fall under 'other powers, privileges and immunities' of the House mentioned in Article 105(3 ). 32. We have also noticed above that the Constitution makes express provisions for election/appointment and removal/cessation of service of the Executive (President and Vice-President), Judiciary (Judges of the Supreme Court and High Court) and all other constitutional functionaries (".'-ttomey General, Auditor and Comptroller General, Chief Election Commissioner etc.). It is, therefore, inconceivable that the Constitution-makers would have omitted to provide for 'expulsion' as one of the methods of cessation of membership or consequential vacancy, if it intended to entrust such power to the Parliament. 33 .. In view of the express provisions in the Constitution, as to when a pers-on gets disqualified to be a member of either House of Parliament (and thereby ceases to be a member) and when a consequential vacancy arises, it is impermissible to read a new category of cessation of membership by way of expulsion and consequential vacancy, by resorting to the incidental powers, privileges and immunities referred to in Article 105. 34. Clause (3) of Article 105 opens with the words 'in other respects'. The provision for 'powers, privileges and immunities' in clause (3) occurs …. t .'> RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA [RA YEEND RAN, J.] 659 iJ after referring to the main privilege of freedom of speech in Parliament, in " .. clause (I) of Article 105, and the main immunity against court proceedings in clause (2) of Article I 05. Therefore, clause (3) is intended to provide for 'non-main' or 'incidental' or miscellaneous powers, privileges and immunities which are numerous to mention. Two things are clear from clause (3). It is not intended to provide for the matters relating to nomination/election, term of office, qualifications, disqualification/cessation, for which express provi- sions are already made in Articles 80, 81, 83, 84, I 01 and 102. Nor is it intended to provide for important privilege of freedom of speech or impor- tant immunity from court proceedings referred to in Clause (1) and (2) of Article 105. This Court in UP. Assembly (supra) referred to this aspect : c "There can be little doubt that the powers, privileges and immunities which are contemplated by clause (3) are incidental powers, privi- leges and immunities which every Legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of clause (3)." [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. 35. The appropriate course in case of allegation of corruption against a Member of Parliament, is to prosecute the member in accordance with law (The immunity under Article 105(2) may not be available, as the decision in P. V.Narasimha Rao v. State, [1998] 4 SCC 626 recognizes immunity to a 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(l)(e). Ifhe is acquitted, he is entitled to continue as a member. Though it may sound cumbersome, that apparently is what the Constitution intends . ..,j 36. I am, therefore, of the considered view that there is no power of expulsion in the Parliament, either inherent or traceable to Article 105(3). Expulsion by the House will be possible only if Article 102 or Article 101 is suitably amended or ifa law is made under Article 102(l)(e) enabling the House to expel a member found unworthy or unfit of continuing as a member. The first question is thus answered in the affinnative. Therefore the second question does not survive for consideration. c 37. In view of the above, I hold that the action of the two Houses of Parliament, expelling the petitioners is violative of Articles 101 to 103 of the Constitution and therefore invalid. Petitioners, therefore, continue to Le Members of Parliament (subject· to any action for cessation of their membership). Petitions disposed of accordingly. ORDER In view of the majority opinion, all the Petitions and Transferred Cases are dismissed. GN. Writ petitions and transferred cases dismissed. ….