Amrinder Singh Vs. Spl. Committee, Punjab Vidhan Sabha & Ors. [2010] INSC 533 (26 April 2010)
Judgment
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6053 OF 2008 Amarinder Singh ... Appellant (s) Versus Special Committee, Punjab Vidhan Sabha & Others ... Respondent (s) WITH T.C. (C) NO.1 of 2009 W.P. (C) NO. 442 of 2008 W.P. (C) NO. 443 of 2008
K. G. BALAKRISHNAN, CJI
1. The appellant was the Chief Minister of the State of Punjab during the 12th term of the Punjab Vidhan Sabha. The appellant was duly elected as a member of the Punjab Vidhan Sabha for its 13th term.
2. The Punjab Vidhan Sabha on 10-9-2008 passed a resolution which directed the expulsion of the appellant for the remainder of the 13th term of the same Vidhan Sabha.
This resolution was passed after considering a report 1 submitted by a Special Committee of the Vidhan Sabha (Respondent No. 1) on 3-9-2008 which recorded findings that the appellant along with some other persons (petitioners in the connected matters) had engaged in criminal misconduct.
The Special Committee had itself been constituted on 18-12- 2007 in pursuance of a resolution passed by the Vidhan Sabha. It had been given the task of inquiring into allegations of misconduct that related back to the appellant's tenure as the Chief Minister of the State of Punjab during the 12th term of the Punjab Vidhan Sabha. More specifically, it was alleged that the appellant was responsible for the improper exemption of a vacant plot of land which was licensed to a particular private party (measuring 32.10 acres) from a pool of 187 acres of land that had been notified for acquisition by the Amritsar Land Improvement Trust on 5-12-2003. The Amritsar Land Improvement Trust is a statutory body which had notified the plan for acquisition in pursuance of a developmental scheme, as contemplated under Section 36 of the Punjab Land Improvement Act, 1922. Earlier, on 23-6-2003, a private party (M/s. Veer Colonizers) had applied for a licence under Section 5 of the Punjab Apartment and Property Regulation Act, 1995 to develop the above-mentioned plot of 32.10 acres which was situated in the proximity of the 2 Amritsar-Jalandhar road. At the time of the colonizer's application for a development licence, the said plot was not covered by any acquisition scheme, though it had been covered by two schemes in the past which had lapsed by then. After the notification of the scheme, the colonizer approached the concerned authorities, seeking an exemption from the proposed acquisition of land. Subsequently on 7-10-2005, the Amritsar Land Improvement Trust granted a No-objection certificate, thereby permitting the exemption of the said plot of 32.10 acres from the scheme for acquisition. This decision to exempt the said plot of 32.10 acres was notified by the State Government on 13-01-2006 under Section 56 of the Punjab Town Improvement Act. Since the appellant was serving as the Chief Minister of the State at the time, it was alleged that the decision to exempt the plot was an executive act that could be attributed to him.
3. However, some other private parties who owned plots in the pool of land that had been notified for acquisition by the Amritsar Land Improvement Trust on 5-12-2003, raised objections against the exemption referred to above. The gist of their objections is that the State Government had unduly favoured one private party by exempting the said 3 plot of 32.10 acres from the scheme for acquisition. In fact the validity of the exemption was questioned in several cases instituted before the High Court of Punjab and Haryana, namely those of Major General Sukhdip Randhawa of Punjab (CWP No. 7838 of 2008). All of these cases were pending before the High Court at the time of the hearings in the present case.
4. Following the elections held to re-constitute the Punjab Vidhan Sabha in February 2007, there was a transition in power in the State. The 13th Vidhan Sabha was constituted on 1-3-2007. The appellant who had served as the Chief Minister of the State during the 12th term of the Vidhan Sabha, became the leader of the opposition in the 13th term.
In pursuance of a news report dated 22.3.2007, some members of the Legislative Assembly moved a privilege motion in respect of allegations of tampering in the proceedings of the 12th Vidhan Sabha (dated 1-3-2006). These allegations were in regard to a starred question relating to the grant of exemption of 32.10 acres of land. On 5-4-2007 the notice 4 of motion was referred to the Privileges Committee of the House by the Speaker. Thereafter, questions were raised on the floor of the house which cast aspersions on the appellant's past conduct. On 18-12-2007, the report of the Privileges Committee was tabled before the House. The incumbent Chief Minister brought a motion which specifically questioned the appellant's role in the exemption of the 32.10 acre plot from the acquisition scheme notified by the Amritsar Improvement Trust.
Following this motion, the Speaker of the House approved the constitution of a Special Committee to inquire into the alleged misconduct. The terms of reference for the Special Committee required it to examine as to what were the reasons for exempting the said plot measuring 32.10 acres of land. As part of this inquiry, the Special Committee had to examine whether any rule/norms had been violated on account of this exemption and whether it had caused monetary losses to the State exchequer. The stated objective was to identify those responsible for such losses.
5. The Special Committee submitted its report on 3-9-2008 which was presented to the House on 5-9-2008. The report included findings that Captain Amarinder Singh (former 5 Chief Minister, appellant in Civil Appeal No. 6053 of 2008), Choudhary Jagjit Singh [former Local Bodies Minister, petitioner in Writ Petition (Civ.) No. 443 of 2008], Late Sh. Raghunath Sahai Puri [former Housing Minister, since deceased] and Sh. Jugal Kishore Sharma [former Chairman of Amritsar Land Improvement Trust, petitioner in Writ Petition (Civ.) No. 442 of 2008) had been involved in `corruption, conspiracy to cause wrongful loss and abuse of public office' in relation to the exemption of land from the above-mentioned acquisition scheme. It must be noted that out of the four individuals named in the report, only Captain Amarinder Singh was elected as a member of the 13th Punjab Vidhan Sabha. After considering these findings, the Punjab Vidhan Sabha passed the impugned resolution on 10-9-2008 which is extracted below:
"After accepting the report submitted by the Special Committee appointed by this House, this august House recommends the following action:
*** *** *** (i) Captain Amarinder Singh is expelled for the remaining term of the 13th Punjab Vidhan Sabha. The Secretary of the Vidhan Sabha is instructed to approach the Election Commission of India to have his seat declared as vacant.
(ii) The recommendations of the Privilege Committee have been tabled in the House on 18.12.2007 and they be forwarded to Chief Secretary, Punjab Government with the undermentioned instructions:- 6 Because this House does not possess any facility to investigate and find out where the accused have stashed away the ill gotten wealth or how it has been distributed, it is essential to have custodial interrogation. Director Vigilance Department, Punjab which deals with corruption cases and is an arm of the Punjab Government be instructed to file a FIR keeping in mind the various instructions of the CrPC.
The vigilance department is to investigate and submit its report to the Speaker of this House within two months from today."
6. In pursuance of the said resolution, the secretariat of the Punjab Vidhan Sabha issued a notification on 10-9-2008 which declared that Captain Amarinder Singh had been expelled from the membership of the 13th Vidhan Sabha for the remaining term of the State Legislature, (that is 3.5 years). It was also declared that his assembly constituency seat (76-Patiala Town) was rendered vacant, thereby setting aside his election to the same. Aggrieved by the findings of the report submitted by the Special Committee on 3-9-2008, the appellant moved the High Court of Punjab and Haryana (C.W.P. 11548 of 2008). Following the impugned resolution on 10-9-2008, the said petition was withdrawn and C.W.P. 16216 of 2008 was instituted before the High Court to challenge the Special Committee's report as well as the impugned resolution dated 10.9.2008. On 15-9-2008, a division bench of the High Court issued an order directing that the case be heard on merits on 1-12-2008. The High 7 Court did not grant a stay on the operation of the impugned resolution, but granted protection to Captain Amarinder Singh from custodial interrogation and directed further listing on 1-12-2008. Dissatisfied with the High Court's order, the appellant approached this court by way of a petition seeking special leave to appeal. The appellant contended that the High Court ought to have stayed the report dated 3.9.2008 and the Resolution and Notification dated 10.9.2008. He apprehended that a fresh election would be conducted in the intervening period, thereby compromising his rights.
7. A division bench of this court directed notice on 26-9- 2008 and referred the case for hearing by a three judge bench. On 3-10-2008, a three judge bench (B.N. Agarwal, G.S. Singhvi and Aftab Alam, JJ.] granted leave in the special leave petition (C.A. No. 6053/2008). It allowed Transfer Petition (C) No. 1087/2008 for transfer of CWP No.
16216/2008 from the Punjab and Haryana High Court (the transferred case is T.C. (C) No. 1 of 2009,) and directed the same to be heard with the Civil Appeal along with W.P. (C) No. 442/2008 and W.P. (C) No. 443/ 2008. The three judge bench did not grant a stay on the operation of the impugned resolution which had directed the 8 expulsion of the appellant from the Vidhan Sabha. However, relief was granted to the extent that even though the appellant could not participate in the legislative proceedings, his seat would not fall vacant until the adjudication of this case. A stay was also granted in respect of the Vidhan Sabha's specific directions to the Punjab Vigilance Department, but it was clarified that the appellant and the petitioners could be investigated in accordance with law. Subsequently, the three judge bench found that the subject matter touched on substantial questions of law requiring the interpretation of Article 194(3) of the Constitution, thereby deeming it fit to refer these matters to a constitution bench by way of an order dated 11-2-2009.
OVERVIEW OF CONTENTIONS
8. The counsel appearing for the appellant and the petitioners have prayed that the impugned resolution as well as the report submitted by the Special Committee be invalidated in their entirety. Accordingly, the appellant has sought restoration of his membership for the remainder 9 of the 13th term of the Punjab Vidhan Sabha. The main thrust of the appellant's contentions is that the acts of constituting the Special Committee on 18-12-2007, the submission of its report on 3-9-2008 and the impugned resolution passed by the Assembly on 10-9-2008 cannot be defended as a proper exercise of legislative privileges under Article 194 of the Constitution. It was urged that the allegations of misconduct on part of the appellant and the petitioners were relatable to their executive actions which in no way disrupted or affected the legislative functions of the Punjab Vidhan Sabha. It was reasoned that legislative privileges are exercised to safeguard the integrity of legislative proceedings and the alleged misconduct did not threaten the same in any manner. Another contention was whether it was proper for the 13th Vidhan Sabha to exercise its privileges to inquire into acts that had occurred during the 12th term of the Vidhan Sabha. It was also pointed out that the alleged misconduct on the part of the appellant and the petitioners had already been questioned before the High Court of Punjab Haryana by private parties whose lands had not been exempted from the Amritsar Improvement Scheme. Thus, it was argued that it was improper for the legislature to act in respect of subject-matter which was pending adjudication, thereby 10 violating the norm of not interfering in sub judice matters. It was further argued that even though legislative privileges are exercised to ensure the dignity and discipline of the House, the same cannot encroach into the judicial domain by recording a finding of guilt and recommending punitive action in respect of the alleged misconduct. To support this objection, it was urged that the appellant and the petitioners had not been given a fair opportunity to contest or meet the allegations against them and hence the proceedings of the Special Committee were violative of the principles of natural justice.
9. The respondents' case is that the Punjab Vidhan Sabha had legitimately exercised its privileges to recommend punitive action in the present case, since the alleged misconduct on part of the appellant and the petitioners had brought disrepute to the House as a whole. It was reasoned that even though the power of expulsion for such misconduct has not been enumerated in Articles 190 and 191 of the Constitution [which prescribe the grounds for disqualification of MLAs] the legislature had a broad power to take punitive action for the breach of its privileges which includes the power to punish for its own contempt. It was submitted that the appellant and the petitioners had 11 committed a breach of privilege as well as contempt of the house since they had previously suppressed efforts of the legislature to inquire into the alleged misconduct in relation to the Amritsar Improvement Scheme. Since legislative privileges have not been codified and are shaped by precedents, the counsel for the respondents have cited some English precedents in support of their contention that privileges can be exercised to punish mala fide acts which do not directly obstruct the proceedings of the House, but impede its dignity nevertheless.
10. In the course of the hearing on merits before this constitution bench, Shri K. Parasaran and Shri U.U. Lalit, Sr. Advs. appeared on behalf of the appellant. Thereafter, Shri Ashok Desai, Sr. Adv. appeared for the respondent whose submissions were supplemented by Shri Ravi Shankar Prasad, Sr. Adv., while Shri Gopal Subramanium, (Additional Solicitor General, now Solicitor General) represented the views of the Union government.
11. In light of the facts of this case and the contentions outlined above, the following questions arise for consideration:
12 I. Whether the alleged misconduct on part of the appellant and the petitioners warranted the exercise of legislative privileges under Article 194(3) of the Constitution? II. Whether it was proper for the Punjab Vidhan Sabha to take up, as a matter of breach of privilege, an incident that occurred during its previous term? III. Whether the impugned acts of the Punjab Vidhan Sabha violated the norms that should be respected in relation to sub judice matters? Re: Question I.
12. Learned counsel appearing for the respondents have submitted that it was proper for the Punjab Vidhan Sabha to constitute the Special Committee and pass the impugned resolution which recommended the expulsion of the appellant. The core of their argument is that the misconduct on part of the appellant had brought disrepute to the Vidhan Sabha and it was justifiable to exercise legislative privileges for mitigating the same. The respondents have adopted a two-pronged line of reasoning.
Firstly, they have asserted that the alleged misconduct on part of the appellant amounted to a breach of privilege as 13 well as contempt of the House. Secondly, they have contended that since the `powers, privileges and immunities' conferred on State Legislatures by Article 194(3) of the Constitution have not been codified, it would not be proper to place limitations on their exercise. The implicit rationale is that legislative assemblies should retain flexibility in the exercise of their privileges and the power to punish for contempt, so that they can tackle new and unforeseen impediments to their reputation and functioning. The respondents' submissions have dwelt at length with the idea that the legislature's power to punish for its own contempt cannot be trammeled since it is different from the remedial objective of exercising privileges to maintain the dignity and discipline of the house. The respondents have extensively relied on the constitution bench decision in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184, where this Court had upheld the Lok Sabha's power to expel its members in view of misconduct in the nature of accepting bribes to ask specified questions on the floor of the House. However, the majority opinions of this Court had also clarified that the exercise of parliamentary privileges in such cases was open to judicial scrutiny.
13. As outlined earlier, the appellant has questioned the impugned resolution since it recommends punitive action in respect of his misconduct which was allegedly committed in his capacity as the Chief Minister of the State of Punjab.
It was submitted that the alleged irregularity in exempting a plot of land from an acquisition scheme was entirely relatable to the discharge of executive functions. The act of exempting land did not in any way obstruct the functions of the Punjab Vidhan Sabha. It was urged that even though the exercise of legislative privileges and the concomitant power to punish for contempt have not been codified, they cannot be construed as unlimited powers since that could lead to their indiscriminate and disproportionate use. The counsel appearing for the appellant and the petitioners have also submitted that when the Special Committee was constituted on 18-12-2007 it did not bear the nomenclature of a privileges committee and at the time it was not apparent to the appellant and the petitioners that they were facing such an action. However, the respondent submits that the incumbent Chief Ministers' motion brought on 18-12-2007 was in the nature of a privileges motion.
Irrespective of the contested facts, it will be proper for us to view this controversy from the prism of legislative privileges. Mr. Gopal Subramanium drew our attention to the 15 two main considerations that should guide the adjudication of this case, namely those of `history' and `necessity'.
Considerations of history require us to examine whether there are any applicable precedents for the exercise of legislative privileges in similar circumstances. The consideration of necessity entails that the scope of privileges should be identified on the basis of what is necessary to prevent or punish obstructions to legislative functioning.
14. Before addressing these contentions, we can take a bird's eye view of the law on legislative privileges. The State Legislatures are conferred with `powers, privileges and immunities' by way of Article 194 of the Constitution which reads:
"194. Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof.- (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.
(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.
16 (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution (Forty- fourth Amendment) Act, 1978.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature."
15. The powers and privileges conferred on the State Legislatures are akin to those conferred on the Union Parliament by Article 105. Therefore, the principles and precedents relatable to the exercise of parliamentary privileges are relevant for deciding this case. Both Articles 105 and 194 explicitly refer to the freedom of speech in the House and the freedom to publish proceedings without exposure to liability. However, other legislative privileges have not been enumerated. Article 105(3) and 194(3) are openly worded and prescribe that the powers, privileges and immunities available to the legislature are those which were available at the time of the enactment of the Constitution (Forty-Fourth) Amendment Act, 1978.
Subhash C. Kashyap has elaborated on the Indian position 17 with these words [In Parliamentary Procedure - The Law, Privileges, Practice and Precedents, Vol. 2 (New Delhi, Universal Law Publishing Co. Pvt. Ltd., 2000) at p. 1555]:
"As regards other privileges, Art. 105(3) as originally enacted provided that that in other respects, the powers, privileges and immunities of Parliament, its committees and members, until defined by Parliament by law, shall be the same as those of the House of Commons of the United Kingdom as on the coming into the force of the Constitution on 26 Jan.
1950. This clause was however, amended in 1978, to provide that in respect of privileges other than those specified in the Constitution, the powers, privileges and immunities of each House of Parliament, its members and Committees 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, its members and Committees immediately before coming into the force of section 15 of the Constitution (44th Amendment), 1978 (w.e.f. 20 June 1978). This amendment has in fact made only verbal changes by omitting all references to the British House of Commons but the substance remains the same. In other words, each House, its Committees and members in actual practice, shall continue to enjoy the powers, privileges and immunities (other than those specified in the Constitution) that were available to the British House of Commons as on 26 Jan. 1950."
16. Since the scope of `powers, privileges and immunities' available under Article 105(3) and 194(3) has not been codified by way of statute till date, it is open for us to consider the principles and precedents relatable to the British House of Commons. In Raja Ram Pal's case (supra.) C.K. Thakkar, J. in his concurring opinion had described Parliamentary Privileges as those fundamental rights which 18 the House and its Members possess so as to enable them to carry out their functions effectively and efficiently. It was observed:
"519. In its creative sense, in England the House did not sit down to build its edifice of the powers, privileges and immunities of Parliament. The evolution of the English parliamentary institution has thus historical development. It is the story of conflict between the Crown's absolute prerogatives and the Common's insistence for powers, privileges and immunities; struggle between high handed actions of monarchs and people's claim of democratic means and methods. Parliamentary privileges are the rights which the Houses of Parliament and Members posses so as to enable them to carry out their functions effectively and efficiently. Some of the parliamentary privileges thus preceded Parliament itself. They are, therefore, rightly described by Sir Erskine May as "fundamental rights" of the Houses as against the prerogatives of the Crown, the authority of ordinary courts of law and the special rights of the House of Lords."
17. The evolution of legislative privileges can be traced back to medieval England when there was an ongoing tussle for power between the monarch and the Parliament. In most cases, privileges were exercised to protect the members of parliament from undue pressure or influence by the monarch among others. Conversely, with the gradual strengthening of parliament there were also some excesses in the name of legislative privileges. However, the ideas governing the relationship between the executive and the legislature have undergone a sea change since then. In modern parliamentary 19 democracies, it is the legislature which consists of the people's representatives who are expected to monitor executive functions. This is achieved by embodying the idea of `collective responsibility' which entails that those who wield executive power are accountable to the legislature.
However, legislative privileges serve a distinct purpose.
They are exercised to safeguard the integrity of legislative functions against obstructions which could be caused by members of the House as well as non-members.
Needless to say, it is conceivable that in some instances persons holding executive office could potentially cause obstructions to legislative functions. Hence, there is a need to stress on the operative principles that can be relied on to test the validity of the exercise of legislative privileges in the present case. In his widely cited work, Sir Erskine May (1950) has answered the question `What constitutes privilege?' in the following manner [See: Erskine May, Parliamentary Practice, 16th edn.
(London: Butter worth’s, 1957) in `Chapter III: General View of the Privilege of Parliament' at p. 42] :
"Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions and which exceed those possessed by other bodies or individuals.
20 Thus privilege, though part of the law of the land is, to a certain extent an exemption from the ordinary law.
The privileges of individual members of the House of Lords may be distinguished from, the privileges of individual members of the House of Commons; both again have common privileges as members of the Parliament;
and the Lords have special privileges as peers, distinct from those which they have as members of a House co-ordinate with the House of Commons." [Stubbs, Constitutional History, iii (4th edn.) p.504] The particular privileges of the Commons have been defined as:- "The sum of the fundamental rights of the House and of its individual Members as against the prerogatives of the Crown, the authority of the ordinary courts of law and the special rights of the House of Lords."
Distinction between function and Privilege proper- It is more convenient to reserve the term `privilege' to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions.
Ancillary nature of Privilege - A necessary means to fulfillment of functions- The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are "absolutely necessary for the due execution of its powers."
In Halsbury's Laws of England, 4th edn. (Reissue Vol. 34, at p. 553) it has been stated:
"Claims to rights and privileges- The House of Lords and the House of Commons claim for their Members, both individually and collectively, certain rights and privileges which are necessary to each House, without which they could not discharge their functions and which exceed those possessed by other bodies and individuals. In 1705, the House of Lords resolved that neither House had power to create any new privilege 21 and when this was communicated to the Commons, that House agreed...."
18. It would be instructive to refer to the following extracts from a lecture on Parliamentary Privileges by Viscount Kilmer - The Lord High Chancellor of Great Britain, [Delivered on May 4, 1959 at the University of London] :- "The first question which springs to the mind is, `What precisely is Parliamentary Privilege?'- and its question which is not altogether easy to answer.
A privilege is essentially a private advantage in law enjoyed by a person or a class of persons or an association which is not enjoyed by others. Looked at from this aspect, privilege consists of that bundle of advantages which members of both Houses enjoy or have at one time enjoyed to a greater extent than their fellow citizens: freedom to access to Westminster, freedom from arrest or process, freedom from liability in the courts for what they say or do in Parliament.
From another point of view, Parliamentary Privilege is the special dignity and authority and enjoyed by each House in its corporate capacity such as its right to control its own proceedings and to punish both members and strangers for contempt. I think these are really two sides of the coin. Any Parliament, it is to function properly, must have some privileges which will ensure freedom (to a greater or lesser degree) from outside interference. If the business of Parliament is of supreme importance, then nobody else must be allowed to impede it, whether by throwing fireworks from the gallery or bringing actions against members for what they say in debate.
A close parallel is provided by the powers of the superior courts to punish for contempt. If you try to interfere with the administration of justice either by throwing tomatoes at the judge or by intimidating a witness you will be liable to be proceeded against for 22 contempt. Once again, a body whose functions are of paramount importance can be seen making certain that outside interference is reduced to a minimum."
19. In Australia, the scope of Parliamentary Privileges was enunciated in the 76th Report of the Senate Committee of Privileges, wherein it was observed:
"The word "privilege", modern usage, connotes a special right accorded to a select group which sets that group apart from all other persons. The Macquarie Dictionary's primary definition of privilege is as follows: "A right of immunity enjoyed by a person or persons beyond the common advantage of others. The privileges of Parliament are immunities conferred in order to ensure that the duties of members as representatives of their constituents may be carried out without fear of intimidation or punishment, and without improper impediment. These immunities, established as part of the common law and recognized in statutes such as the Bill of Rights of 1688, are limited in number and effect. They relate only to those matters which have common to be recognized as crucial to the operation of a fearless Parliament on behalf of the people. As pointed out in a submission by the Department of the Senate to the Joint Select Committee on Parliamentary Privilege, a privilege of Parliament is more properly called an immunity from the operation of certain laws, which are otherwise unduly restrictive of the proper performance of the duties of members of Parliament."
20. In a Canadian case reported as New Brunswick Broadcasting Co. v. Nova Scotia, (1993) 100 DLR (4th) 212, Lamer, C.J. had cited the following extract from an 23 academic commentary [See: Joseph Maingot, Parliamentary Privilege (Toronto: Butterworths, 1982) at p. 12]:
"Parliamentary privilege is the necessary immunity that the law provides for members of Parliament and for members of the legislatures of each of the ten provinces and two territories, in order for these legislators to do their legislative work. It is also necessary immunity that the law provides for anyone while taking part in a proceeding in Parliament or in a legislature. Finally, it is the authority and power of each House of Parliament and of each legislature to enforce that immunity.
Parliamentary privilege and immunity with respect to the exercise of that privilege are founded upon necessity. Parliamentary privilege and the breadth of individual privileges encompassed by that term are accorded to members of the House of Parliament and the legislative assemblies because they are judges necessary to the discharge of their legislative function.
The contents and extent of parliamentary privileges have evolved with reference to their necessity. In Precedents of Proceedings in the House of Commons, Vol. I, 3rd Ed. (London: T Payne, 1796), John Hatsell defined at p. 1 the privileges of parliament as including those rights which are absolutely necessary for the due execution of its power". It is important to note that, in this context, the justification of necessity is applied in a general sense. That is, general categories of privilege are deemed necessary to the discharge of the Assembly's function. Each specific instance of the exercise of a general privilege needs to be shown to be necessary."
21. In the past, this Court has adopted a similar conception of legislative privileges to interpret Article 194(3). For example in Re Special Reference 1 of 1964, AIR 24 1965 SC 745, (also known as the U.P. Assembly case) Gajendragadkar C.J. had held, at Para. 33:
"... The Constitution-makers must have thought that the legislatures will 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 which are contemplated by clause (3), are incidental powers, privileges and immunities which every legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of clause (3)."
22. In State of Karnataka v. Union of India, (1977) 4 SCC 608, a seven judge bench of this Court construed the powers contained in Article 194(3) as those `necessary for the conduct of the business of the House', at Para. 57:
"57. It is evident, from the Chapter in which Article 194 occurs as well as the heading and its marginal note that the `powers' meant to be indicated here are not independent. They are powers which depend upon and are necessary for the conduct of the business of each House. They cannot also be expanded into those of the House of Commons for all purposes... We need not travel beyond the words of Article 194 itself, read with other provisions of the Constitution, to clearly read such a conclusion."
23. Y.K. Sabharwal, C.J. (majority opinion) in Para. 471 of Raja Ram Pal's case (supra.) has quoted from Parliamentary 25 Privilege- First Report (Lord Nicholas) which describes Parliamentary Privilege as:
"Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their Members and officers possess to enable them to carry out their parliamentary functions effectively.
Without this protection Members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished."
In U.P. Assembly case (supra.), this Court had also drawn a distinction between the exercise of legislative privileges and that of ordinary legislative functions in the following manner:
"There is a distinction between privilege and function, though it is not always apparent. On the whole, however, it is more convenient to reserve the term `privilege' to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions. The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are absolutely necessary for the due execution of its powers. They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity."
In Hatsell's Collection of Cases of Privileges of Parliament (1776), Parliamentary privileges have been 26 defined as those rights which are `absolutely necessary for the due execution of its powers'. A similar definition has also been quoted in Sir Erskine May's Parliamentary Practice (1950) and is also found in Ramanatha Aiyar, Advanced Law Lexicon, 2nd edn. Vol. 3 (New Delhi: Wadhwa & Co. Nagpur, 1997) which defines privilege as:
"The distinctive mark of a Parliamentary Privilege is its ancillary character. They are rights which a sovereign legislature must possess for the due execution of its powers. Some of them are enjoyed by individual members of the House."
24. The observations cited above make it amply clear that the exercise of legislative privileges is not an end in itself. They are supposed to be exercised in order to ensure that legislative functions can be exercised effectively, without undue obstructions. These functions include the right of members to speak and vote on the floor of the house as well as the proceedings of various legislative committees. In this respect, privileges can be exercised to protect persons engaged as administrative employees as well. The important consideration for scrutinising the exercise of legislative privileges is whether the same was necessary to safeguard the integrity of legislative functions. We are also expected to look to 27 precedents involving the British House of Commons. The most elaborate list of Parliamentary Privileges exercised by the British House of Commons has been compiled by Pritiosh Roy in his work Parliamentary Privilege in India which has been quoted in Raja Ram Pal's case (supra.) at Paragraphs 94-97 and has been reproduced below:
1) Privilege of freedom of speech, comprising the right of exclusive control by the House over its own proceedings. It is a composite privilege which includes:
(i) the power to initiate and consider matters of legislation or discussion in such order as it pleases;
(ii) the privilege of freedom in debate proper- absolute immunity of members for statements made in debate, not actionable at law;
(iii) the power to discipline its own members;
(iv) the power to regulate its own procedure- the right of the House to be the sole judge of the lawfulness of its own proceedings;
(v) the right to exclude the jurisdiction of the Courts;
(vi) the right to exclude strangers;
(vii) the right to ensure privacy of debate;
(ix) the right to control or prohibit publication of its debates and proceedings;
2) Privilege of freedom from arrest or molestation the claim of the Commons to freedom of members from arrest in civil action or suits during the time of the Parliament and during the period when a member journeys to or returns from the Parliament. This privilege includes:
(i) exemption of a member from attending Court as a witness- service of a civil or criminal process within the precincts of the House is a breach of privilege.
(ii) a member cannot be admitted as bail;
(iii) exemption of a member from jury service (iv) no such privilege claimed in respect of criminal offences or statutory detention;
28 (v) right of the House to be informed of arrest of members on criminal charges;
(vi) extension of the privilege to witnesses summoned to attend before the House or its committees, and to officers in immediate attendance upon the service of the House.
3) Privilege of freedom of access to the sovereign through the Speaker.
4) Privilege of the House of receiving a favourable construction of the proceedings of the House from the sovereign.
5) Power of the House to inflict punishment for contempt on members or strangers- a power akin to the powers possessed by the superior courts of justice to punish for contempt.
It includes:
(i) the power to commit a person to prison, to the custody of its own officers or to one of the State prisons, [the keystone of parliamentary privilege] the commitment being for any period not beyond the date of the prorogation of the House;
(ii) the incompetence of the courts of justice to admit a person committed by the House to bail;
(iii) when the person is committed by the House upon a general or unspeaking warrant which does not state the particular facts constituting the contempt the incompetence of the courts of justice to inquire into the nature of contempt;
(iv) the power of the House to arrest an offender through its own officers or through the aid and power of the civil government;
(v) the power of the officers of the House to break open outer doors to effect the execution of the warrant of arrest;
(vi) the power of the House to administer reprimand or admonition to an offender;
(vii) the power of the House to secure the attendance, whether in custody or not, of persons whose conduct is impugned on a matter of privilege;
(viii) the power of the House to direct the Attorney General to prosecute an offender where the breach of privilege is also an offence at law and the extent of the power 29 of the House to inflict punishment is not considered adequate to the offence;
(ix) the power of the House to punish a member by (a) suspension from the service of the House, or (b) expulsion, rendering his seat vacant.
6) Privilege of the House to provide for its own due constitution or composition. It includes:
(i) the power of the House to order the issue of new writs to fill vacancies that arise in the Commons in the course of a Parliament;
(ii) the power of the House in respect of the trial of controverter elections of members of the Commons;
(iii) the power of the House to determine the qualifications of its members to sit and vote in the House in cases of doubt- it includes the power of expulsion of a member.
A major portion of this ancient privilege of the House of Commons has been eroded by the statute.
7) The power of the House to compel the attendance of witnesses and the production of papers."
25. However, we are only obliged to follow British precedents to the extent that they are compatible with our constitutional scheme. This is because the legislatures in India do not have a wide power of self-composition in a manner akin to the British House of Commons. This position was clarified in Raja Ram Pal's case, (Supra.) at Para. 87:
"87. In U.P. Assembly Case (Special Reference No.1 of 1964) it was settled by this Court that a broad claim that all the powers enjoyed by the House of Commons at the commencement of the Constitution of India vest in an Indian Legislature cannot be accepted in its 30 entirety because there are some powers which cannot obviously be so claimed. In this context, the following observations appearing at SCR p.448 of the judgment should suffice: (AIR 1965 SC 745, p.764, para. 45) "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 favourable construction placed on his words was justly regarded by the Commons as fundamental privilege' [Sir Erskine May's Parliamentary Practice, (16th Edn.), p.86].
It is hardly necessary to point out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder and impeachments 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 (May's Parliamentary Practice, p.175). This privilege again, admittedly, cannot be claimed by the House.
Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House."
26. Hence, it is a well-settled position that all the privileges claimed by the House of Commons cannot be automatically claimed by legislative bodies in India. With respect to the examples noted above, it is quite apparent that vacancies arising in the legislative bodies (Union Parliament and State Legislative Assemblies) are duly 31 filled up through the election procedures contemplated by the Constitution that have been fleshed out in detail through the Representation of People Act, 1951. Similarly disputes relating to elections are heard by the competent courts and disqualifications are effected as per the grounds enumerated in the Constitution. While Articles 101 and 102 enumerate the grounds for vacation of seats and the disqualification of Members of Parliament (MPs) respectively, Article 190 and Article 191 deal with these aspects in relation to Members of State Legislatures. The manner of effecting disqualifications has also been laid down in relation to the various grounds for the same.
27. In Raja Ram Pal's case, (supra.) the majority had decided that the parliamentary privileges available under Article 105(3) could be legitimately exercised to expel members for grounds other than those prescribed for disqualification of members under Article 102. This Court had upheld the validity of the proceedings of a privileges committee of the Lok Sabha which had inquired into the improper acts of some MPs and recommended their expulsion.
In that case, the misconduct was in the nature of accepting bribes in return for asking specified questions on the floor of the house. One of the expelled MPs had been 32 reported for accepting gratification in lieu of improper allocation of funds under the Member of Parliament Local Area Development Scheme (MPLADS). The acceptance of bribes had been recorded on camera by some journalists and later on the video-footage was treated as conclusive evidence of guilt by the privileges committee. In the present case, the respondents have cited this decision in support of their contention that it was proper for the Punjab Vidhan Sabha to have exercised its' power to punish for contempt [derived from Article 194(3) of the Constitution] in order to recommend the expulsion of the appellant. It was argued that the Vidhan Sabha was empowered to expel members on grounds other than those prescribed for disqualification of members under Article 191. However, an important consideration in that case was that the misconduct which was the ground for the MPs' expulsion had a direct connection with their legislative functions, namely those of asking questions at the behest of vested interests and the improper allocation of funds under the MPLADS scheme respectively. With respect to the allegations against the appellant in the present case, it is quite difficult to see how the improper exemption of a particular plot of land from an acquisition scheme caused an obstruction to the conduct of legislative business. If it is indeed felt that 33 the allegations of misconduct on part of the former Chief Minister had brought disrepute to the entire House, then the proper course is to pursue criminal investigation and prosecution before the appropriate judicial forum.
28. At this juncture, we must reiterate the principles which guide judicial scrutiny of the exercise of legislative privileges (including the power to punish for contempt of the House). In Raja Ram Pal's case, Y.K. Sabharwal, C.J. had framed the following guidelines, at Para. 431:
. "431. Summary of the Principles relating to Parameters of Judicial Review in relation to exercise of Parliamentary Provisions We may summarize the principles that can be culled out from the above discussion. They are:
a. Parliament is a co-ordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny;
b. Constitutional system of government abhors absolutism and it being the cardinal principle of our Constitution that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution, mere co-ordinate constitutional status, or even the status of an exalted constitutional functionaries, does not disentitle this Court from exercising its jurisdiction of judicial review of action which part-take the character of judicial or quasi-judicial decision;
c. The expediency and necessity of exercise of power or privilege by the legislature are for the 34 determination of the legislative authority and not for determination by the courts;
d. The judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature;
e. Having regard to the importance of the functions discharged by the legislature under the Constitution and the majesty and grandeur of its task, there would always be an initial presumption that the powers, privileges etc have been regularly and reasonably exercised, not violating the law or the Constitutional provisions, this presumption being a rebuttable one;
f. The fact that Parliament is an august body of co-ordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power;
g. While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to exercise thereof, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested, and the Court would confine itself to the acknowledged parameters of judicial review and within the judicially discoverable and manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error;
h. The Judicature is not prevented from scrutinizing the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens;
i. The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct;
j. If a citizen, whether a non-member or a member of the Legislature, complains that his fundamental rights under Article 20 or 21 had been contravened, it is the duty of this Court to examine the merits of the said 35 contention, especially when the impugned action entails civil consequences;
k. There is no basis to claim of bar of exclusive cognizance or absolute immunity to the Parliamentary proceedings in Article 105(3) of the Constitution;
l. The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other Constitutional provisions, for example Article 122 or 212;
m. Articles 122(1) and Article 212(1) displace the broad doctrine of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governance provided by Constitution of India n. Article 122(1) and Article 212(1) prohibit the validity of any proceedings in legislature from being called in question in a court merely on the ground of irregularity of procedure;
o. The truth or correctness of the material will not be questioned by the court nor will it go into the adequacy of the material or substitute its opinion for that of the legislature;
p. Ordinarily, the legislature, as a body, cannot be accused of having acted for an extraneous purpose or being actuated by caprice or mala fide intention, and the court will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters, but if i