Raja Ram Pal Vs. Speaker, Lok Sabha & Ors [2007] Insc 24 (10 January 2007)
C.K. Thakker with Transferred Cases Nos. 82, 83, 84, 85, 86, 87, 88, 89, 90 of 2006 and Writ Petition (C) No. 129 of 2005 C.K. Thakker, J.
I have had the benefit of reading the erudite judgment prepared by my Lord the Chief Justice. I am in agreement with the final order dismissing the petitions.
Keeping in view, however, the issue in these matters which is indeed of great public importance having far- reaching consequences to one of the largest democracies of the world, I intend the consider it in detail.
In these 11 petitions (9 by members of Lok Sabha and 2 by members of Rajya Sabha), the petitioners have challenged the proceedings initiated against them by Parliament, the reports submitted by the Committees constituted by Parliament holding them guilty of the charges levelled against them and notifications expelling them as members of Parliament.
The 'unfortunate background' of the case has been dealt with by the learned Chief Justice and I do not intend to repeat it. Suffice it to say that it was alleged against the petitioners that they accepted money for tabling questions/raising issues in Parliament.
Committees were appointed to inquire into the allegations and conduct of Hon'ble Members. The allegations were found to be correct and pursuant to the reports submitted by the Committees, the Members were expelled by Parliament. Those Members have challenged the impugned action of expulsion.
The Court had been ably assisted by the learned counsel for the parties on the central question of Parliamentary privileges, the power of the House to deal with those privileges and the ambit and scope of judicial review in such matters.
At the outset, I wish to make it clear that I am considering the controversy whether Parliament has power to expel a member and whether such power and privilege is covered by clause (3) of Article 105 of the Constitution. I may clarify that I may not be understood to have expressed final opinion one way or the other on several questions raised by the parties and dealt with in this judgment except to the extent they relate or have relevance to the central issue of expulsion of membership of Parliament.
PARLIAMENTARY PRIVILEGES : MEANING an important as also a complicated question is :
What do we understand by 'parliamentary privileges'? "Nothing", said Dicey, "is harder to define than the extent of the indefinite powers or rights possessed by either House of Parliament under the head of privilege or law and custom of Parliament".
Though all the three expressions, powers, privileges and immunities are invariably used in almost all Constitutions of the world, they are different in their meanings and also in contents.
'Power' means 'the ability to do something or to act in a particular way'. It is a right conferred upon a person by the law to alter, by his own will directed to that end;
the rights, duties, liabilities or other legal relations either of himself or of other persons. It is a comprehensive word which includes procedural and substantive rights which can be exercised by a person or an authority.
'Privilege' is a special right, advantage or benefit conferred on a particular person. It is a peculiar advantage or favour granted to one person as against another to do certain acts. Inherent in the term is the idea of something, apart and distinct from a common right which is enjoyed by all persons and connotes some sort of special grant by the sovereign.
'Immunity' is an exemption or freedom from general obligation, duty, burden or penalty. Exemption from appearance before a court of law or other authority, freedom from prosecution, protection from punishment, etc. are immunities granted to certain persons or office bearers.
Sir Erskin May, in his well-known work 'Treatise on The Law, Privileges, Proceedings and Usage of Parliament', (23rd Edn.); p. 75 states;
"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. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law. Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual Members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its Members. Other such rights and immunities such as the power to punish for contempt and the power to regulate its own constitution belong primarily to each House as a collective body, for the protection of its Members and the vindication of its own authority and dignity. Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members".
In Halsbury's Laws of England, (4th Edn.; Reissue, Vol. 34; p. 553; para 1002); it has been stated;
"Claim 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 and when this was communicated to the Commons, that House agreed. Each House is the guardian of its own privileges and claims to be the sole judge of any matter that may arise which in any way impinges upon them, and, if it deems it advisable, to punish any person whom it considers to be guilty of a breach of privilege or a contempt of the House".
In the leading case of Powers, Privileges and Immunities of State Legislatures, Article 143, Constitution of India, Re, (1965) 1 SCR 413 : AIR 1965 SC 745, Sarkar, J. (as His Lordship then was) stated; "I would like at this stage to say a few general words about "powers, privileges and immunities" of the House of Commons or its members. First I wish to note that it is not necessary for our purposes to make a distinction between "privileges", "powers" and "immunities". They are no doubt different in the matter of their respective contents but perhaps in no otherwise. Thus the right of the House to have absolute control of its internal proceedings may be considered as its privilege, its right to punish one for contempt may be more properly described as its power, while the right that no member shall be liable for anything said in the House may be really an immunity".
In 'Parliamentary Privilege First Report' (Lord Nicholas Report), it was observed;
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.
RAISON D'ETRE FOR PRIVILEGES The raison d'etre for these privileges is again succinctly explained by Sir Erskine May thus;
"The distinctive mark of a privilege is its ancilliary 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 used 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.
Elected representatives, however, are not placed above the law by way of parliamentary privileges; they are simply granted certain advantages and basic exemptions from legal process in order that the House may function independently, efficiently and fearlessly. This is in the interest of the nation as a whole.
PARLIAMENT : WHETHER POSSESSES POWER TO EXPEL MEMBERS The basic and fundamental question raised by the petitioners in all these petitions is the power of Parliament to expel a member. Other incidental and ancillary questions centre round the main question as to authority of a House of Legislature of expulsion from membership. If the sole object or paramount consideration of granting powers, privileges and immunities to the members of Legislature is to enable them to ensure that they perform their functions, exercise their rights and discharge their duties effectively, efficiently and without interference of outside agency or authority, it is difficult to digest that in case of abuse or misuse of such privilege by any member, no action can be taken by the Legislature, the parent body.
I intend to examine the question on principle as well as on practice. It would be appropriate if I analyse the legal aspects in the light of constitutional provisions of India and of other countries, factual considerations and relevant case law on the point.
AMERICAN LAW So far as the United States of America is concerned, the Constitution itself recognizes such right. Section 5 of Article 1 of the Constitution of the United States confers such right on each House of the Legislature. Sub-section (2) reads thus;
"(2) Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member." (emphasis supplied) Leading Authors on the Constitution have also stated that each House possesses the power to expel a member in appropriate cases.
Cooley in his well-known work 'Treatise on the Constitutional Limitations', (1972 Edn., p. 133); states;
Each House has also the power to punish members for disorderly behavior, and other contempts of its authority, and also to expel a member for any cause which seems to the body to render it unfit that he continue to occupy one of its seats. This power is sometimes conferred by the constitution, but it exists whether expressly conferred or not. It is a necessary and incidental power, to enable the house to perform its high functions and is necessary to the safety of the State. It is a power of protection. A member may be physically, mentally, or morally wholly unfit; he may be affected with a contagious disease, or insane, or noisy, violent and disorderly, or in the habit of using profane, obscene, and abusive language. And independently of parliamentary customs and usages, our legislative houses have the power to protect themselves by the punishment and expulsion of a member and the Courts cannot inquire into the justice of the decision, or look into the proceedings to see whether opportunity for defence was furnished or not." (emphasis supplied) Another well-known authority on the point is Willoughby, who in his work "Constitutional Law of the United States", (Second Edn.; p. 256); says;
"This right of expulsion is to be sharply distinguished from the right to refuse to admit to membership. In the latter case, as has been seen, the questions involved are, in the main, the perhaps exclusively, those which relate to the Constitutional qualifications of those persons presenting themselves for admission or to the regularity and legality of the elections at which such persons have been selected or appointed. In the former case, that is, of expulsion, these matters may be considered, but, in addition, action may be predicated upon the personal character or acts of the parties concerned; and, as to his last matter, as will presently be seen, the chief point of controversy has been whether the acts of which complaint is made should be only those which have occurred subsequent to election and have a bearing upon the dignity of Congress and the due performance of its functions.
In determining whether or not a member of congress has been guilty of such acts as to warrant his expulsion the House concerned does not sit as a criminal trial court, and is not, therefore, bound by the rules of evidence, and the requirements as the certitude of guilt which prevail in a criminal character, but only as to unfitness for participation in the deliberations and decisions of congress." (emphasis supplied) Dealing with the question of expulsion by the House and the power of Courts, Pritchett in his book 'American Constitution' (Third Edn., p. 146); observed;
"Expulsion and Censure : Congressmen are not subject to impeachment, not being regarded as 'civil officers' of the United States. The constitution does not provide, however, that each House may expel its members by a two third vote, or punish them for 'disorderly behaviour'. Congress is the sole judge of the reasons for expulsion. The offence need not be indicatable. In 1797 the Senate expelled William Blount for conduct which was not performed in his official capacity not during a session of the Senate nor at the seat of government. The Supreme Court has recorded in a dictum in understanding that the expulsion power 'extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a member".
(emphasis supplied) In 'American Jurisprudence', (Second Edn., Vol. 77, p. 21); it has been stated;
"The power of either House of Congress to punish or expel its members for cause is recognized in the Constitution which provides that each House may punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member.
Punishment for misbehaviour may in a proper case be by imprisonment and may be imposed for failure to observe a rule for preservation of order. In the case of the Senate, the right to expel extends to all cases where the offence is such as in the judgment of the body is inconsistent with the trust and duty of a member (Chapman Re, (1896) 166 US 661 : 41 L Ed 1154)".
Attention of the Court was also invited to certain decisions of the Supreme Court of the United States. In Chapman, Re, 166 US 661 (1891) : 41 L Ed 2nd 1154, the Supreme Court before more than a century, recognized the power of the Senate to expel a member where an act of the Member was such as in the judgment of the Senate was inconsistent with the 'trust and duty' of a member.
Reference was made to William Blount, who was expelled from the Senate in July, 1797, for 'a high misdemeanor entirely inconsistent with his public trust and duty as a senator.' It was also stated that in July, 1861, during civil war, fourteen Senators and three Representatives were expelled.
In Julion Bond v. James Sloppy Floyd, 385 US 116 (1966) : 17 L Ed 2nd 235, William Bond, a Negro, duly elected representative was excluded from membership because he attacked policy of Federal Government in Vietnam. The US Supreme Court held that Bond had right to express free opinion under the first amendment and his exclusion was bad in law.
In Powell v. McCormack, 395 US 486 (1969) : 23 L Ed 2nd 491, the applicant was held entitled to declaratory judgment that action of exclusion of a member of a House was unlawful. The allegation against the applicant was that he deceived the House Authorities in connection with travel expenses and made certain illegal payments to his wife. Referring to Wilkes and the Law in England, the Court observed that "unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behaviour and in extreme cases, to expel a member with the concurrence of two-thirds." In H. Snowden Marshall v. Robert B. Gordon, 243 US 521 (1917), a Member of the House of Representatives levelled serious charges against District Attorney of the Southern District of New York with many acts of misfeasance and nonfeasance. The Select Committee submitted a report holding him guilty of contempt of the House of Representatives of the United States because he violated its privileges, its honor and its dignity.
Dealing with the case and referring to Kielley v.
Carson, (1842) 4 MOO PC 63 : 13 ER 225, the Court observed that when an act is of such a character as to subject it to be dealt with as a contempt under the implied authority, Congress has jurisdiction to act on the subject. Necessarily results from that the power to determine in the use of legitimate and fair discretion how far from the nature and character of the act there is necessity for repression to prevent immediate recurrence, that is to say, the continued existence of the interference or obstruction to the exercise of the legislative power.
Unless there is manifest and absolute disregard of discretion and a mere exertion of arbitrary power coming within the reach of constitutional limitations, the exercise of the authority is not subject to judicial interference.
I may also refer to a leading decision in United States v. Daniel Brewster, 408 US 501 : (1972) 33 L Ed 2nd 507. Keeping in view ground reality that privileges conferred on Members of Parliament are likely to be abused, Burger, CJ stated;
"The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from too sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerates and protects behaviour on the part of the Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process". (emphasis supplied) From the above cases, it is clear that in the United States, the House possesses the power of observance of discipline by its members and in appropriate cases, such power extends to expulsion. It is also clear that such power has been actually exercised for disorderly behavior in the House as also outside the House, where the House was satisfied that the member was 'unfit' physically, mentally or morally even if such conduct could not be a 'statutable offence' or was not committed by him in his official capacity or during House in Session or at the seat of Government.
AUSTRALIAN LAW The provisions relating Parliamentary privileges under the Constitution of Australia were similar to our Constitution. Section 49 declared powers, privileges and immunities of the Senate and of the House of Representatives and its Members. It was as follows;
"The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the Members and the Committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth." (emphasis supplied) Enid Campbell in his book 'Parliamentary Privilege in Australia', dealing with 'Expulsion', states;
"At common law, the House of Commons is recognized to have power to expel a member for misconduct unfitting him for membership even where that misconduct is not such as to disqualify him from parliamentary office. There is no doubt that those Australian Houses of Parliament invested by statute with the powers and privileges of the House of Commons enjoy the same power, but the position with regard to other Houses is not so clear. At common law, Colonial Legislatures do not possess punitive powers, though there is dictum in Barton v. Taylor to the effect that they do have power to expel for aggravated or persistent misconduct on the ground that this may be necessary for the self protection of the legislature. Where a member is expelled, his seat thereupon becomes vacant. He is not, however, disqualified from being again elected and returned to parliament".
Discussing powers of Colonial Assemblies, the learned author states that though such Assemblies do not possess 'punitive' powers, it is inconceivable that they cannot make rules for the orderly conduct of business. Even if they have no authority to expel a member in absence of specific provision to that effect, they may suspend disorderly members in appropriate cases.
"The dignity of a Colonial Parliament acting within its limits, requires no less than that of the Imperial Parliament that any tribunal to whose examination its proceedings are sought to be submitted for review should hesitate before it undertakes the function of examining its administration of the law relating to its internal affairs". (emphasis supplied) It may also be stated that Odger in his 'Australian Senate Practice', (11th Edn.; p.57) observes;
"The recommendation, and the consequent provision in section 8 of the 1987 Act, was opposed in the Senate. It was argued that there may well be circumstances in which it is legitimate for a House to expel a member even if the member is not disqualified. It is not difficult to think of possible examples. A member newly elected may, perhaps after a quarrel with the member's party, embark upon highly disruptive behaviour in the House, such that the House is forced to suspend the member for long periods, perhaps for the bulk of the member's term. This would mean that a place in the House would be effectively vacate, but the House would be powerless to fill it.
Other circumstances may readily be postulated. The House, however, denied themselves the protection of expulsion".
Lumb and Ryan (''The Constitution of the Commonwealth of Australia'; 1974 Edn.) stated that each House of the Federal Parliament has the right to suspend a member for disorderly conduct. The power is exercised to punish persistent interjectors or for refusal to withdraw an offensive remark. "In extreme cases a member may be expelled". (emphasis supplied) In 1920, Hugh Mahon, Federal Member of Kalgoorlie was expelled from the House of Representatives for making a 'blistering' public speech against British Rule in Ireland.
It is no doubt true that pursuant to the report of the Joint Select Committee on Parliamentary Privilege (1984), a specific Act has been enacted, known as the Parliamentary Privileges Act, 1987 (Act 21 of 1987).
Section 8 of the said Act expressly bars a House to expel any of its members. It reads:
"A House does not have power to expel a member from membership of a House".
It is, therefore, clear that only recently, the power to expel a member from the House has been taken away by a specific statute.
CANADIAN LAW The legal position under the Constitution of Canada is different to some extent. Section 18 of the Constitution of the Dominion of Canada, 1867 states;
"The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof." (emphasis supplied) It is thus clear that unlike India, in Canada, the Legislature could not enlarge its privileges by enacting a law investing in it the privileges enjoyed by British Parliament. There is no such limitation under Section 49 of the Australian Constitution nor under Article 105(3) or Article 194(3) of the Indian Constitution.
In spite of the above provision in the Constitution, the right of the House to expel a member has never been challenged. Sir John George Bourinot, in his work 'Parliamentary Procedure and Practice in the Dominion of Canada', (4th Edn., p.64), states;
"The right of a legislative body to suspend or expel a member for what is sufficient cause in its own judgment is undoubted. Such a power is absolutely necessary to the conservation of the dignity and usefulness of a body. Yet expulsion, though it vacates the seat of a member, does not create any disability to serve again in Parliament".
The learned counsel for the parties also drew our attention to certain cases from Canada. We may notice only few recent decisions.
In Speaker of the House of Assembly v. Canadian Broadcasting Corporation, (1993) 1 SCR 319, the Broadcasting Corporation made an application to the Nova Scotia Supreme Court, Trial Division for an order allowing it "to film the proceedings of the House of Assembly with its own cameras". The application was based on the Canadian Charter of Rights and Freedoms which guaranteed freedom of expression and freedom of press. The Corporation claimed that it was possible to film the proceedings from the public gallery with modern equipments. The Speaker, however, declined permission on the ground that Corporation's proposal would interfere with "the decorum and orderly proceedings of the House". The Trial Judge granted the claim which was upheld in appeal. The Speaker approached the Supreme Court.
One of the questions raised before the Supreme Court was as to whether the House could exercise privilege by refusing access to the media. Lamer, CJ discussed the doctrine of privilege in detail in the light of the doctrine of necessity. Referring to Stockdale v.
Hansard, (1839) 9 Ad & E 1 : 112 ER 1112 (QB), he stated that parliamentary privilege and immunity are founded upon necessity. 'Parliamentary privileges' and the breadth of individual privileges encompassed by that term were accorded to members of the Houses of Parliament and the Legislative Assemblies because they were considered necessary for the discharge of their legislative functions.
Mc Lachlin, J. (as she then was) agreed with the learned Chief Justice and observed that Canadian legislative Assemblies could claim as inherent privileges those rights which were necessary to their 'capacity to function as legislative bodies'. Necessity was thus the test. Referring to Kielley v. Carson (1842), 4 MOO PC 63 :
13 ER 225, it was observed that though the Privy Council held that a Colonial Assembly had no power to commit for a contempt like House of Commons of the United Kingdom, it did not dispute that such powers "as are necessary to the existence of such body and the proper exercise of the functions which it is intended to execute" were bestowed with the very establishment of the Newfoundland Assembly.
The Court also considered the ambit and scope of judicial review and exercise of parliamentary privilege.
Referring to Sir Erskine May that "after some three and a half centuries, the boundary between the competence of the law courts and the jurisdiction of either House in matters of privilege is still not entirely determined", the Court observed that originally the Houses of Parliament took the position that they were the exclusive judges of their privileges. They claimed to be 'absolute arbiters' in respect of parliamentary privileges and took the stand that their decisions were not reviewable by any other Court or Authority. The Courts, on the other hand, treated lex parliamentis to be part of the 'law of the land' and as such, within their judicial control. Judiciary exercised the power particularly when issues involved the rights of third party. According to Courts, their role was to interpret the law of Parliament and to apply it.
Holding the test of 'necessity' for privilege as 'jurisdictional test', the learned Judge stated; "The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute 'parliamentary' or 'legislative' jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body.
(emphasis supplied) Keeping in view important roles of different branches of Government, it was observed;
"Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body;
the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other".
Reference was also made to Fred Harvey v. Attorney General for New Brunswick, (1996) 2 SCR 876. In that case, a Member of provincial Legislature was convicted of illegal practice and was expelled from legislature pursuant to provincial elections legislation. The allegation proved against him was that he had induced a 16-year old female to vote in the election, knowing fully well that she was not eligible to vote. He was also disqualified for a period of five years from contesting any election. The Court of Appeal dismissed the appeal of the appellant. The aggrieved Member approached the Supreme Court.
Dismissing the appeal and upholding the order of the Court of Appeal, the Supreme Court held that there was no question that the appellant's actions amounted to an attack on the integrity of the electoral process which was at the heart of a free and democratic society and constituted a breach of trust deserving of censure.
Dealing with Parliamentary privileges and jurisdiction of Courts, Mc Lachlin, J. stated;
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. If they do, two consequences are apt to result. First, the functioning of the legislature may be impaired.
Second, public confidence in the legislature and the government may be undermined. No democracy can afford either.
When faced with behaviour that undermines their fundamental integrity, legislatures are required to act. That action may range from discipline for minor irregularities to expulsion and disqualification for more serious violations. Expulsion and disqualification assure the public that those who have corruptly taken or abused office are removed. The legislative process is purged and the legislature, now restored, may discharge its duties as it should.
(emphasis supplied) It was, however, added that it was not to say that the courts have no role to play in the debate which arises where individual rights are alleged to conflict with parliamentary privilege. Under the British system of parliamentary supremacy, the courts arguably play no role in monitoring the exercise of parliamentary privilege.
In Canada, that has been altered by the Charter of 1926.
To prevent abuses cloaked in the guise of privilege from trumping legitimate Charter interests, the courts must inquire into the legitimacy of a claim of parliamentary privilege. As clarified in Canadian Broadcasting Corporation, the courts may question whether a claimed privilege exists. This screening role means that where it is alleged that a person has been expelled or disqualified on invalid grounds, the courts must determine whether the act falls within the scope of parliamentary privilege. If the court concludes that it does, no further review lies.
(emphasis supplied) It was also stated that British Jurisprudence makes distinction between privileges asserted by resolution and privileges effected automatically by statute. In respect of privileges asserted by resolution, British Courts have developed a doctrine of necessity, enabling them to inquire whether the action taken by resolution is necessary to the proper functioning of the House. The 'necessity inquiry' does not ask whether the particular action at issue was necessary, and hence does not involve substantive judicial review. It rather asks whether the dignity, integrity and efficiency of the legislative body could be maintained if it were not permitted to carry out the type of action sought to be taken, for example to expel a member from the Legislature or disqualify a person from seeking office on ground of corruption.
A question was raised as to whether Parliament could expel any of its members. Upholding such right, the Court stated;
"The power of Parliament to expel a member is undoubted. This power has been repeatedly exercised by the English and Colonial Parliaments, either when members have been guilty of a positive crime, or have offended against the laws and regulations of the House, or have been guilty of fraudulent or other discreditable acts, which proved that they were unfit to exercise the trust which their constituents had reposed in them, and that they ought not to continue to associate with the other members of the legislature.
Expulsion may be justified on two grounds: to enforce discipline within the House; and to remove those whose behaviour has made them unfit to remain as members.
The right of expulsion on these two grounds -- discipline and unfit behaviour -- is a matter of parliamentary privilege and is not subject to judicial review". (emphasis supplied) The Court concluded;
"This protection is now accepted, in Canada as in Britain, as a fundamental tenet of parliamentary privilege. The point is not that the legislature is always right. The point is rather that the legislature is in at least as good a position as the courts, and often in a better position, to decide what it requires to function effectively. In these circumstances, a dispute in the courts about the propriety of the legislative body's decision, with the delays and uncertainties that such disputes inevitably impose on the conduct of legislative business, is unjustified".
Very recently, in House of Commons v. Satnam Vaid, (2005) 1 SCR 667, a chauffeur of a Speaker in spite of an order in his favour, was not reinstated in service. He made a complaint to the Canadian Human Rights Commission to investigate into the matter. The Commission accepted the complaint of the employee and referred the matter to the Tribunal. The Speaker challenged the jurisdiction of the Tribunal contending that it was his power of 'hire and fire' and there was no review. The Tribunal dismissed the challenge. The Federal Court upheld the Tribunal's decision. When the matter reached the Supreme Court, the question as to applicability of privileges was raised. It was held that within categories of privilege, Parliament was the sole judge of the occasion and manner of its exercise and such exercise was not reviewable by the courts. However, the existence and scope of the privileges could be inquired into by Courts.
Binnie J. stated; "It is a wise principle that the courts and Parliament strive to respect each other's role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the sub judice rule. The courts, for their part, are careful not to interfere with the workings of Parliament.
None of the parties to this proceeding questions the pre- eminent importance of the House of Commons as 'the grand inquest of the nation'. Nor is doubt thrown by any party on the need for its legislative activities to proceed unimpeded by any external body or institution, including the courts. It would be intolerable, for example, if a member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker's choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary courts that the Speaker's choice violated the member's guarantee of free speech under the Charter. These are truly matters 'internal to the House' to be resolved by its own procedures. Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation's business and on that account would be unacceptable even if, in the end, the Speaker's rulings were vindicated as entirely proper".
Emphasising on resolution of conflict between Parliament and Courts in respect of 'legitimate sphere of activity of the other', the Court observed;
"Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body;
the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other".
ENGLISH LAW English Constitution was neither established by any single action nor on any particular day. It has grown from the political institutions of people who respected monarchy but equally insisted for democracy and parliamentary institution. The origins of parliamentary privileges are thus inextricably interwined with the history of Parliament in England; and more specifically, the battle between English Monarch and Parliament;
between the House of Commons and House of Lords as also between Parliament and Courts.
Parliament emerged in the thirteenth century.
English legal history traces its roots in Magna Carta.
Magna Carta had been described as a 'constitutional myth' because it was a document which came into existence on account of grievances of feudal magnates (barons) (Ann Lyon : 'Constitutional history of the United Kingdom, (2003); p.39). The Magna Carta declared that the King was not above the law.
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 English Parliamentary institution has thus historical development. It is the story of conflict between Crown's absolute prerogatives and Commons' 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 Houses of Parliament and members possess 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 House as against the prerogatives of the Crown, the authority of ordinary Courts of Law and the special rights of the House of Lords.
Initially, the House simply claimed privilege. They neither made request to the Crown for their recognition nor to Courts for their enforcement. Parliamentary privileges in that sense are outside the law, or a law unto themselves. For instance, the House would not go to Crown or to Court for release of its member illegally detained. It would also not pray for a writ of habeas corpus. It would simply command the Sergeant-at-Arms with the ceremonial mace to the prison and get the Member released on its own authority.
As Holdsworth ('A History of English Law', Second Edition; pp.92-93), stated; "It was the privilege of the House which enabled it to act freely, to carry on the controversy with the King in a Parliamentary way, and thus to secure a continuous development of constitutional principles. It is, therefore, not surprising to find that the earliest controversies between James I and his Parliaments turned upon questions of privilege, and that these same questions were always in the forefront of the constitutional controversies all through this period".
He also added that Parliament asserted and used its privileges to win for itself the position of a partner with the King in the work of governing the State.
Sir Edward Coke was in favour of 'High Court of Parliament' having its law and was of the view that the matters decided in Parliament were not part of Common Law. He observed that it was not for a Judge to judge any law, custom or privilege of Parliament. The laws, customs, liberties and privileges of Parliament are better understood by precedents and experience than can be expressed by a pen.
As Lord Tennyson stated;
"A land of settled government, A land of just and old renown, Where Freedom slowly broadens down, From precedent to precedent." Let us consider the view points of learned authors, jurists and academicians on this aspect.
In Halsbury's Laws of England, (Fourth Edn.;
Reissue : Vol. 34; p. 569; para 1026); it has been stated;
House of Commons' power of expulsion.
Although the House of Commons has delegated its right to be the judge in controverted elections, it retains its right to decide upon the qualifications of any of its members to sit and vote in Parliament.
If in the opinion of the House a member has conducted himself in a manner which renders him unfit to serve as a member of Parliament, he may be expelled, but unless the cause of his expulsion by the House constitutes in itself a disqualification to sit and vote in the House, he remains capable of re- election. (emphasis supplied) From the above statement of law, it is explicitly clear that the two things, namely, (i) expulsion; and (ii) disqualification are different and distinct. A member can be expelled by the Legislature if his conduct renders him 'unfit' to continue as such. It, however, does not ipso facto disqualify him for re-election. An expelled member may be re-elected and no objection can be raised against his re-election, as was the case of John Wilkes in 1769.
O. Hood Phillips also states ('Constitutional and Administrative Law', Fourth Edition; p. 180) that the House may also expel a member, who although not subject to any legal disability, is in its opinion unfit to serve as a member. This is commonly done when the Court notifies the Speaker that a member has been convicted of a misdemeanour. The House cannot prevent an expelled member from being re-elected, as happened several times in the case of John Wilkes between 1769 and 1794, but it can refuse to allow him to take seat.
Wade and Phillips also expressed the same opinion.
In 'Constitutional Law', (7th Edition; p.793); it was stated;
"The House of Commons cannot of course create disqualifications unrecognized by law but it may expel any member who conducts himself in a manner unfit for membership".
Sir William Anson in "The Law and Custom of the Constitution", (Fifth Edn; Vol. I; pp. 187-88) states;
"In the case of its own members, the House has a stronger mode of expressing its displeasure. It can by resolution expel a member, and order the Speaker to issue his warrant for a new writ for the seat from which the member has been expelled. But it cannot prevent the re-election of such a member by declaring him incapable of sitting in that Parliament. In attempting to do this, in the case of Wilkes, the House had ultimately to admit that it could not create a disqualification unrecognized by law".
Griffith and Ryle in "Parliament, functions, practice and procedures", (1989), at p.85 stated;
"The reconciliation of these two claims the need to maintain parliamentary privileges and the desirability of not abusing them has been the hall-mark of the House of Commons treatment of privilege issues in recent years".
Dealing with the penal powers of the House, the learned authors proceeded to state: (pp.91-92);
"Laws are meaningless unless there is power to enforce them by imposing penalties on those who wreak them. The House does not rely on the courts but has its own penal jurisdiction.
The severest and historically most important power is that of commitment .
Two other punishments can be ordered for Members who offend the House namely expulsion, or suspension from the service of the House for a specified period or until the end of the session.
Expulsion is the ultimate sanction against a Member. It is an outstanding demonstration of the House's power to regulate its own proceedings, even its composition. The expulsion of a Member cannot be challenged.
(emphasis supplied) Consideration of powers, privileges and immunities of the British Parliament would not be complete if one does not refer to relevant statements and propositions of law by Sir Erskine May in his celebrated and monumental work titled 'Treatise on the Law, Privileges, Proceedings and Usage of Parliament'. "This work has assumed the status of a classic on the subject and is usually regarded as an authoritative exposition of parliamentary practice".
The attention of the Court was, however, invited to the changed approach by the Revising Authors on the power of Parliament to expel a member. It would, therefore, be appropriate if I refer to both the editions of 1983 and of 2004.
In Twentieth Edition by Sir Charles Gordon (1983), in Chapter 9 (Penal Jurisdiction of the Houses of Parliament), it had been stated;
PUNISHMENT INFLICTED ON MEMBERS In the case of contempts committed against the House of Commons by Members, two other penalties are available, viz.
suspension from the service of the House and expulsion. In some cases expulsion has been inflicted in addition to committal.
There was a sub-topic as under;
Expulsion by the Commons The purpose of expulsion is not so much disciplinary as remedial, not so much to punish Members as to rid the House of persons who are unfit for membership. It may justly be regarded as an example of the House's power to regulate its own constitution.
But it is more convenient to treat it among the methods of punishment at the disposal of the House.
In Twenty-third Edition by Sir William McKay (2004), Chapter 9 titles (Penal jurisdiction of Both Houses). The relevant discussion reads thus;
PUNISHMENT OF MEMBERS In the case of contempts committed against the House of Commons by Members, or where the House considers that a Member's conduct ought to attract some sanction (see pp. 132-33), two other penalties are available in addition to those already mentioned :
suspension from the service of the House, and expulsion, sometimes in addition to committal.
Under sub-topic 'Expulsion', it was stated;
EXPULSION The expulsion by the House of Commons of one of its Members may be regarded as an example of the House's power to regulate its own constitution, though it is, for convenience, treated here as one of the methods of punishment at the disposal of the House.
Members have been expelled for a wide variety of causes.
On the basis of above, it was submitted by the learned counsel for the petitioners that the power of expulsion by Parliament as an independent punishment has not been recognized by May. It has now remained as part of power to regulate its own constitution. Since no such power has been possessed by Indian Parliament, it cannot expel any member.
I must frankly admit that I am unable to agree with the learned counsel. The Revising Author refers to punishment of members and in no uncertain terms states that if the House considers conduct (misconduct) of a Member objectionable attracting sanction, appropriate punishment can be imposed on him. Over and above other penalties, 'expulsion' has been specifically and expressly mentioned therein. As will be seen later on in this judgment, the Framers of our Constitution have also reserved this right with the Parliament/State Legislature. The above argument of the petitioners, in my opinion, therefore, does not carry the case further.
ILLUSTRATIVE CASES Though several cases have been cited by the learned counsel for both the sides in support of their contentions and submissions, I will refer to the cases which related to expulsion of membership of Parliament.
Probably, the earliest case was of Mr. Hall. In 1580, Mr. Hall, a Member of House of Commons published a book containing derogatory remarks against the Members of the House. On the basis of a complaint, the matter was referred to the Privilege Committee which found him guilty. In spite of apology tendered by him, he was committed to the Tower of London for six months, was fined and also expelled.
In a subsequent case in 1707, Mr. Asquill, a Member of Parliament wrote a book wherein disparaging remarks on Christian Religion were made. Though nothing was stated by him against the House or against Members of the House, Mr. Asquill was expelled being 'unfit' as Member.
Asquill thus established that the House of Commons could expel a Member for his actions even outside the House provided the House finds him unfit to be continued as a Member of Parliament.
In 1819, Mr. Hobhouse, a Member of House of Commons wrote a pamphlet making the following comment;
"Nothing but brute force, or the pressing fear of it would reform Parliament".
Contempt proceedings were initiated against Hobhouse and he was imprisoned.
In 1838, Mr. O'Connell, a member of House of Commons said, outside the house of Parliament;
"Foul perjury in the Torry Committees of the House of Commonswho took oaths according to Justice but voted for Party." He was reprimanded. Mr. Sandham was likewise admonished in 1930 for levelling allegations against the Members of the House.
Special reference was made to Bradlough v. Gossett, (1884) 12 QBD 275. In that case, B, duly elected Member of Borough was refused by the Speaker to administer oath and was excluded from the House. B challenged the action.
It was held that the matter related to the internal management of the House of Commons and the Court had no power to interfere.
Lord Coleridge, C.J. stated;
What is said or done within the walls of Parliament cannot be inquired into in a court of law The jurisdiction of the Houses over their own Members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, "They would sink into utter contempt and efficiency without it". (Burdett v. Abbot, 14 East 148, 152).
Dealing with the contention that the House exceeded its legal process in not allowing B to take oath which he had right to take, the learned Chief Justice said; "If injustice has been done, it is injustice for which the courts of law afford no remedy." An appeal should not be made to the Court but to the constituencies.
As observed by His Lordship in Stockdale v.
Hansard, (1839) 9 Ad & E 1 : 112 ER 1112 (QB), "the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules or derogation from its dignity, stands upon the clearest grounds of necessity." Stephen, J. was much more specific and emphatic.
He said;
"The legal question which this statement of the case appears to me to raise for our decision is this:Suppose that the House of Commons forbids one of its members to do that which an Act of Parliament requires him to do, and, in order to enforce its prohibition, directs its executive officer to exclude him from the House by force if necessary, is such an order one which we can declare to be void and restrain the executive officer of the House from carrying cut? In my opinion, we have no such power. I think that the House of Commons is not subject to the control of Her Majesty's Courts in its administration of the control of Her Majesty's Courts in its administration of that part of the statute-law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable".
It was further stated; "It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if that interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly".
His Lordship concluded;
"In my opinion the House stands with relation to such rights and to the resolutions which affect their exercise, in precisely the same relation as we the judges of this Court stand in to the laws which regulate the rights of which we are the guardians, and to the judgments which apply them to particular cases; that is to say, they are bound by the most solemn obligations which can bind men to any course of conduct whatever, to guide their conduct by the law as they understand it.
If they misunderstand it, or (I apologize for the supposition) willfully disregard it, they resemble mistaken or unjust judges; but in either case, there is in my judgment no appeal from their decision. The law of the land gives no such appeal; no precedent has been or can be produced in which any Court has ever interfered with the internal affairs of either House of Parliament, though the cases are no doubt numerous in which the Courts have declared the limits of their powers outside of their respective Houses. This is enough to justify the conclusion at which I arrive".
One may not agree with the wider observations of Stephen, J. particularly in the light of written Constitution and power of Judicial Review conferred on this Court which has been held to be 'basic feature' of our Constitution. But it certainly indicates approach of judiciary while dealing with powers, privileges and rights of Parliament over its members.
I may also refer to a case which is very much relevant and was referable to a point in time our Constitution was about to commence.
One Garry Allingham, a Member of Parliament got published an article on April 3, 1947 (before few months of Independence of India) making derogatory remarks against members of the House. A complaint was made to the House of Commons. Allingham was called upon to explain his conduct by the House. Allingham offered regrets for unfounded imputations against Members and tendered unconditional apology and said;
"I have humbly acknowledged my mistake, and nothing could be more sincere and heart-felt than my remorse for my action. Having done all that it is humanly possible to do to put this deeply regretted affair straight, I am content to submit myself to this House, confident that it will act in its traditional spirit of justice and generosity".
After the close of Allingham's speech a resolution was proposed holding him guilty of gross contempt of the House and to 'proceed with utmost severity against such offender'. A motion was moved to suspend Allingham from service of the House for six months and to deprive him of salary for that period. But an amendment to the motion was sought to the effect that Allingham be expelled from the House and finally the amended resolution was passed by the House.
Allingham thus clearly established that on the eve of British Empire in this country and on the dawn of Independence of India, one of the powers and privileges enjoyed by British Parliament was power of expulsion of a member from Parliament.
Finally, I may refer to a post-Constitution case of Mr. Peter Arthus David Baker (1954). He was a Member of House of Commons. A competent Court of Law held him guilty of forgery and convicted and sentenced him.
The factum of conviction was officially communicated by the Court to the Speaker of the House. Baker, in his letter to the Speaker of the House, expressed remorse about his conduct which was not connected with his position and status as a member of the House.
He, inter alia, stated;
"I must end as I began, by begging the House to accept my most sincere apology. I can only assure you that my regret, remorse and repentance during the past three months were doubted by the knowledge that, in addition to my friends and colleagues elsewhere, I had also embarrassed my friends and colleagues in the House of Commons. I can only ask you and, through you, them to accept this expression of these regrets." The entire letter was read out to the House. After consideration, the following resolution was passed;
"Resolved, that Mr. Peter Arthus David Baker be expelled from this House." Baker proved that the House of Commons possessed and continued to possess power to expel a Member for his objectionable activity not only in the House in his capacity as a Member as such but also outside the House if it is found to be otherwise improper, or tarnishing the image of the House in public eye or making him 'unfit' to continue to be a Member of an august body.
[This case is also relevant inasmuch as the Constitution (Forty-fourth Amendment) Act, 1978 by which Article 105(3) has been amended, lays down that whenever a question of powers, privileges and immunities of Parliament arises, it will be ascertained whether such power, privilege or immunity was available to the House of Commons on the day the Amendment came into force, i.e. on June 20, 1979].
The petitioners strongly relied upon a decision of the Judicial Committee of the Privy Council in Edward Keilley v. William Carson, (1842) : 4 MOO PC 63 : 13 ER 225. K was a District Surgeon and Manager of Hospital while C was a Member of Assembly of Newfoundland. C made certain adverse remarks in respect of Hospital Management by K. K threatened C for criticizing the management and added; "Your privilege shall not protect you". C complained to the House. The Committee of Privilege found K guilty of the breach of privilege of the House and committed him to the goal.
K thereupon brought an action of trespass and false imprisonment against the defendants but failed. Before the Privy Council, one of the questions was as to whether the Assembly of Newfoundland had power to commit for breach of privilege, as incident to the House as a legislative body. According to K, the Assembly did not possess such power. Drawing the distinction between (a) conquered colonies, and (b) settled colonies, it was urged that in the former, the power of the Crown was paramount, but in the latter, the Colonists carried with them the great Charter of Liberty (Magna Carta) that "No man shall be imprisoned but by the lawful judgment of his peers, or by the law of the land." The Privy Council held that Newfoundland was a settled and not a conquered colony and the settlers carried with them such portion of its Common Law and Statute Law as was conferred and also the rights and immunities of British subjects. The Judicial Committee held that the Crown did not invest upon the Legislative Assembly of Newfoundland the power to commit for its contempt.
The Committee then proceeded to consider the question thus;
The whole question then is reduced to this,--whether by law, the power of committing for a contempt, not in the presence of the Assembly, is incidental to every local Legislature.
The Statute Law on this subject being silent, the Common Law is to govern it; and what is the Common Law, depends upon principle and precedent.
Their Lordships see no reason to think, that in the principle of the Common Law, any other powers are given to them, than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment, an act which on both sides, it is admitted, it was competent for the Crown to perform. This is the principle which governs all legal incidents.
"Quando lex aliquid concedit, concedere videtur et illud, sine qua res ipsa esse non potest."W In conformity to this principle we feel no doubt that such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their Legislative functions, they are justified in acting by the principle of the Common Law.
But the power of punishing any one for past misconduct as a contempt of its authority, and adjudicating upon the fact of such contempt, and the measure of punishment as a judicial body, irresponsible to the party accused, whatever the real facts may be, is of a very different character, and by no means essentially necessary for the exercise of its functions by a local Legislature, whether representative or not. All these functions may be well performed without this extraordinary power, and with the aid of the ordinary tribunals to investigate and punish contemptuous insults and interruptions.
These powers certainly do not exist in corporate or other bodies, assembled, with authority, to make bye-laws for the government of particular trades, or united numbers of individuals. The functions of a Colonial Legislature are of a higher character, and it is engaged in more important objects;
but still there is no reason why it should possess the power in question.
It is said, however, that this power belongs to the House of Commons in England and this, it is contended, affords an authority for holding that it belongs as a legal incident, by the Common Law, to an Assembly with analogous functions. But the reason why the House of Commons has this power, is not because it is a representative body with legislative functions, but by virtue of ancient usage and prescription; the lex et consuetude Parliamenti, which forms a part of the Common Law of the land, and according to which the High Court of Parliament, before its division, and the Houses of Lords and Commons since, are invested with many peculiar privileges, that of punishing for contempt being one. And, besides, this argument from analogy would prove too much, since it would be eq
