The Legislature and the Judiciary: Judicial Pronouncements on Parliament and State Legislatures 8125041915, 9788125041917

Citation preview

The Legislature and the Judiciary

The Legislature and the Judiciary Judicial Pronouncements on Parliament

and State Legislatures

Chief Editor Dr RAGHBIR SINGH FORMER SECRETARY, MINISTRY OF LAW AND JUSTICE, LEGISLATIVE DEPARTMENT

Head, Editorial Team Dr K. N. CHANDRASEKHARAN

PILLAI

ForRMER DIRECTOR, INDIAN Law INSTITUTE, New DELHI

Published for the Rajya Sabha Secretariat, New Delhi, India

A

Orient BlackSwan

THE LEGISLATURE AND THE JUDICIARY ORIENT

BLACKSWAN

Registered

( Hf

PRIVATE LIMITED

¢

3-6-752 Himavatnagan Hyderabad 300 029 CAP). India e-mail: centralofhiceceorientblackswan.com

Other Offices Bangalore, Bhopal, Bhubaneshwar Chennai.

Ernakulam. Guwahati, PIyvderabad. Jaipur, Kolkata, Lucknow, Mumbai. New Delhi, Patna

(© Rajva Sabha Secretariat, New Delhi 2071 First published by Oricnt Reprinted

ISBN /ypevet

Blackswan

Pye. Ped. 2001

201]

978 BE

250

4197

7

by

Le Studie

Graphigue,

in Adobe Garamond

Caurgaon

Pro

}1/13

122 2

Printed at

Acgean Offset

Printers

Careater Noida Published hy

Orient Blackswan Private [mirc 1/24 Asaf Ali Road

New Delhi

110002

© mail: delhigeoricntblackswaan.com

00]

Contents

Foreword by Upendra Baxi

IX

Preface

XIX

Acknowledgements

XXI

Introduction

XXIII

SECTION I: ANALYSIS OF CASE LAWS . Powers, Privileges and Immunities of Parliament and State Legislatures

3.

Powers, Privileges and Immunities of Members

43

Sessions, Prorogation and Dissolution

62

Members’ Right to Attend Session of the House while Under Arrest/Detention

68

. Writ Petitions Challenging Resolutions Adopted

73

. Writ Petitions Challenging Decisions of

7/7

by the House

the Chairman/Speaker

Qualifications and Disqualifications of Members of Parliament and State Legislatures . Anti-defection Law (Tenth Schedule) Resignation, Removal and Vacation of Seat

83

90 99

10. Oath or Affirmation

109

11. Voting in the House

116

Contents

vi

Introduction and Passing of Bills

12.

13. Address and Messages of President/Governor to the House or House(s)

14. Conflict of Powers of the Legislature Vis-@-VIS the Judiciary 14]

Topic-wise List of Cases

ny

eo

SECTION II:

SUMMARY OF CASES

A. K. Roy and Ors v. Union of India and Ors

153

A. K. Subbaiah v. Ramakrishna Hedge and Ors

158

A. Kunjan Nadar v. The State

163

A. M. Paulraj v. The Speaker, Tamil Nadu Legislative Assembly, Madras and Anr

165

5. A. Swamickan v. K. Venkatachalam and Anr

169

6. Ajit Singh v. State (Delhi), Through CBI

172

Amarinder Singh v. Special Committee, Punjab

Vidhan Sabha and Ors

. Anand Bihari Mishra v. Ram Sahay

Anand Mohan v. Union of India and Ors 10. Ansumali Majumdar and Ors v. The State of West Bengal and Anr 11. Baljeet Singh v. Election Commission of India and Ors

173 176 179 183 185

12.

Bhagwan Dass Sehgal v. State of Haryana and Ors

192

13.

Biharilal Dobray v. Roshan Lal Dobray Brundaban Nayak v. Election Commission of India and Anr C. Srikisen v. State of Hyderabad and Ors C. Subramaniam v. Speaker of Madras Legislative Assembly and Ors Chhabildas Mehta, MLA and Ors v. The Legislative Assembly, Gujarat State and Ors

195

14. 15. 16. 17. 18.

D. Murugesan v. The Hon ble Speaker (Thiru Sedapatti R. Muthiah) Tamil Nadu Legislative Assembly

Dr 20. Dr 21. Dr 22. Dr 19.

23.

Jatish Chandra Ghosh v. Harisadhan Mukherjee and Ors Jatish Chandra Ghosh v. Harisadhan Mukherjee and Ors Kashinath G. Jalmi and Anr v. The Speaker and Ors Luis Proto Barbosa v. Union of India and Ors

Dr Mahachandra Prasad Singh v. The Hon ble Chairman, Bihar Legislative Council and Ors

199 204 206 208

Contents

24. Durga Das Rathore v. The State of Bihar and Ors 25. G. Vasantha Paiv. C. K. Ramaswamy and Anr 26. G. Viswanathan v. The Hon’ble Speaker, Tamil Nadu

Legislative Assembly, Madras 27. Gunupati Keshavram Reddy v. Nafisul Hasan and the State of UP 28. 29. 30. 31.

Har Sharan Varma v. Union of India and Ors Hardwari Lal v. Election Commission of India and Ors

Haridasan Palayil v. The Speaker, Kerala Legislative Assembly Hem Chandra Sen Gupta v. The Speaker, Legislative

Assembly of West Bengal 32. In Re: Gujarat Assembly Election Matter 33. In Re: K. Anandan Nambiar

34. In Re: Pillalamarri Venkateswarlu, a detenu in the Central Jail v. The District Magistrate and Superintendent, Central Jail 35. Jagjit Singh v. State of Haryana and Ors 36. Jai Singh Rathi and Ors v. State of Haryana 37. Janaganavadi Bharti v. Government of India and Ors 38. Jaya Bachchan v. Union of India and Ors 39. Jayashankara Gowda v. Chief Secretary 40. Joginder Singh Toor and Anr v. Union of India through Secretary, Law, Justice and Companies Affairs, New Delhi and Ors 41. K. Anandan Nambiar v. Chief Secretary to Government of Madras 42. K. Anbazhagan and Ors v. The Secretary, The Tamil Nadu

Legislative Assembly, Madras and Ors

43, Keshav Singh v. The Speaker 44, Kihota Hollohan v. Zachilhu and Ors 45. M. Kunjukrishnan Nadar v. The Hon'ble Speaker, Kerala Legislative Assembly, Trivandrum and Ors

46. 47. 48. 49. 50. 51. 52. 53. 54.

M. S. M. Sharma v. Sri Krishna Sinha and Ors Madhu Parumata v. The Speaker, Kerala Legislative Assembly Madhukar Jetly v. Union of India and Ors Manjit Singh v. Maharashtra Assembly Mayawati v. Markandeya Chand and Ors Naveen Chandra Gupta, Advocate v. Union of India and Ors Navjot Singh Sidhu v. State of Punjab O. Ramalingam and Ors v. The Director, Daily Thanthi and Ors PV. Narasimha Rao v. CBI (Delhi)

vii

238 243 247 250 252 254 260 264 267 274 276 278 281 284 285 288 292 294 296

302 312 321 323 330 333 335 338 342 346 348 350

Contents

PV Narasimha Rao v. State (CBI) Panna Lal Agyan and Ors v. The Hon'ble Speaker,

Sri Balram Jukgad and Ors

Parkash Singh Badal and Ors v. Union of India and Ors Pashupati Nath Sukul and Ors v. Nem Chandra fain and Ors Prakash Kant v. The Speaker of Uttaranchal Assembly, Dehradun

Purshottam Lal Sharma v. State of Rajasthan and Ors R. Krishnaiah y. Union of India and Ors

Raghu Raj Pratap Singh alias Raja Bhaiya v. State of UP and Ors Raj Narain Singh v. Aunaram Govind and Anr Raja Ram Paly. The How ble Speaker, Lok Sabha aid Ors Rajendra Singh Rana and Ors v. Swami Prasad Maurya and Ors Rajesh Ranjan vy. State of Bihar and Aur Ram Das Athawale v. Union of India Rameshwar Prasad and Ors v. Union of India and Anr Ravi S. Naik and Sanjay Bandenkar vy. Union of India

Saroj Giri v. Vayalar Ravi and Ors Sarojini Ramaswami v. Union of India and Ors Social Action for Peoples Rights and Aur vy. State of Uttar Pradesh

State of Kerala v. R. Sudarsana Babu Sub-committee of Judicial Accountability v. Union of India and Ors Surat Singh Yadav v. Sudama Prasad Goswami and Anr 76. Surendra Mohanty v. Nabakrishna Choudhury and Ors 77. 7. M. Jacob v. State of Kerala and Anr 78. Tej Kiran Jain and Ors v. N. Sanjiva Reddy and Ors 79. le; Kiran Jain and Ors v. N. Sanjiva Reddy and Ors 80. Thankamma v. The Hoirble Speaker, Legislative assembly, liavancore-Cochin State and Anr

81.

The Election Commission of India and Any v. Dr Subramanian Swamy

82. 83. 84,

The Election Commission of India vy. N. G. Ranga and Ors Udai Narain Sinha v. State of Uttar Pradesh and Ors Yeshwant Rao Meghwatle v. Madhya Pradesh

Legislative Assembly and Ors

List of Articles for Section 1

490)

Case Index

497

General Index

503

Foreword

INTRODUCTORY

REMARKS

It is a common

mistake to think that the law concerning powers, privileges and

immunities of legislatures is primarily a matter of interest to legislators, lawyers and

justices, of no profound pertinence to the everyday lives of Indian citizen-peoples or to a wider arena of public concern for democratic deliberation. It is true that the ‘law’ such as it appears as arcana imperii (secrets of sovereign power.) Yet on another register

the ‘law’ also constitutes a ‘public secret’ (to borrow a phrase from Pratiksha Baxi.)

It is also a common mistake to regard issues concerning the nature and scope of parliamentary autonomy and immunity as primarily a domain of the Old and New British Commonwealth

law regions. True, as it remains, the law of parliamentary

privileges has been both imposed and inherited in most ex-colonial constitutional

orderings. Granting this, even a quick glance at the proliferating literature on ‘good

governance’ shows how the issues of delimitation of parliamentary privileges and immunities remain central.' Increasingly, parliamentary? powers and immunities are

now studied further in the contexts of international human rights norms, standards,

and values as well under the expanded/expansive rule of law notions. The worlds ' 2006

was especially productive:

see The

Inter-Parliamentary

immunity as part of the United Nations Development Crisis Prevention, and Recovery;

The Organization

Union

study on parliamentary

Programme Initiative on Parliaments,

for Security and Co-operation

in Europe

Parliamentary Assembly adopted a Resolution on Limiting Immunity for Parliamentarians in Order to Strengthen Good Governance, Public Integrity and the Rule of Law; and in October 2006, the Global Organization of Parliamentarians against Corruption called for countries to examine procedures for

waiving parliamentary immunity. See also Opinion no. 361/2005 (delivered March 20, 2006) by the Venice Commission (the European Commission for Democracy through Law) on a request by Albania concerning the limitation on parliamentary immunity for corruption offences and abuse of duty. ? This expression includes federal constitutions and state legislatures.

x

Foreword

of parliamentary privileges and immunities are being slowly but surely tested on the anvil of a more anxious regard for human rights violations and governance corruption.

The overall Indian approach, in contrast, remains rather static. Having chosen in 1950 to retain the same privileges and immunity that the House of Commons enjoyed, the Indian Parliament has not thought the time ever ripe enough to change the situation. Since 1950, even the situation in the United Kingdom has undergone changes (and especially in the context of the British Human Rights Act, 2000) yet the Indian ‘law’ remains tied to the understanding fostered in the United Kingdom as of 1950! The Indian constitution thus continues to display the deep slumber ofa Rip van

Winkle (the nearest equivalent for India being the figure of Prince Kumbhkarna of the Ramayana’) Even calls from the Old Commonwealth countries—Canada, Australia,

and New Zealand, which have debated and enacted specific legislations—have not disturbed the Indian slumber.

Of course, our eminent Speakers and parliamentarians take part in the International

Parliamentary Union, the Commonwealth Parliamentary Association, and other fora;

however, the frequency and intensity of this participation does not yield itself to a

programschrift of change for parliamentary privileges and immunities. It remains useful to ask: “Why so?’ even if one may despair of cogent answers. The ‘old’ is ‘gold’ type response may suggest that regardless of other Commonwealth countries, India should adhere to historically developed patterns of legislative privileges and immunities, which have after all worked not too badly so far. Further, it seems to be believed that any codification of these would pave way to endless contestation inimical to the traditions already developed by the Presiding Officers of the Indian Parliament and State Legislatures. The fact that such arguments have been made elsewhere in the Old Commonwealth, and found unpersuasive may be of interest, even when not compelling, for relevant future action. A second reason may be that the Indian appellate courts, especially the Supreme Court of India have more or less acquiesced with inherited position of parliamentary privileges and immunities. Given this, codification of these is neither desirable nor necessary. This volume suggests otherwise. In any event, transferring the burdens and responsibilities of disciplining of powers/procedures and immunity/impunity of our legislators to the Supreme Court of India is not the dest democratic way of enunciating the responsibility of legislators. A third reason for status quo, though not explicitly stated, concerns the problem of immunity from criminal proceedings. Unlike the civil law systems or regions (for example German and French based legal systems) where the immunity has to be specifically lifted or waived in each situation, in India our legislators remain fully subject to investigation and trial for criminal conduct, subject only to the permission from the Speaker for arrest, rarely withheld’. Recently, a Union Cabinet Minister (Shri Shibu Soren) was in fact arrested, tried, and convicted for ‘murder’ (chough See, £ generally,) Chapter 2. g his conviction was reversed on appeal). PI I

Foreword

xi

Yet the difference between the Indian and the civil law systems may not be

overstated. The otherwise precious due process type insistence means that leading politicians under criminal indictment may continue as Members of legislatures, even

as incumbent Ministers and Chief Ministers of States, or as Opposition Leaders, until tried and eventually convicted and punished. They may, as they regularly do, also thus contest and win elections. Mighty technical difficulties surround their prosecution under the Prevention of Corruption Act under which the prior sanction of competent authority is a prerequisite, raising the question what that ‘authority’ may be in case of an incumbent State Chief Minister.‘ Perhaps, then, we still need to revisit, more ardently than is the case now, the contemporary discourse about legislators immunity as impunity.

It is in this context that I welcome this presentation of judgments concerning the autonomy of the representative institutions—Parliament and State Legislatures.

This near-exhaustive compilation should provide a kind of ready reckoner to the Presiding Officers of the Indian legislatures and as a handy guide to the elected public

officials, who are after all thought by the Constitution of India as the best custodians of the dignity and autonomy of the legislature. As generations pass, the memory of obligations of this custodianship unfortunately tends to dissipate. Given this, the compendium should serve as a useful tool for adult and continuing education of the

future legislative generations.

The usefulness of this text goes beyond this, of course. The emergent tribes of 24/7

mass media folks may find this compendium useful as a database for the production/

dissemination of news and views. So may the wide variety of social and human rights movement folks. The advantage of this compilation is that it requires merely a minimal

legal/constitutional literacy. This volume endeavours to explain the powers, privileges, and immunities of legislatures in India and the limited role of Justices in articulating a constitutional

conception of the legislature's autonomy. However, it is crucial to understand why there is such a prolix case law inviting courts and justices to decide issues that should

have been settled by the legislative bodies in the first place and finally. It is interesting to note at the outset that most cases have been filed by legislators themselves! How may we understand this phenomenon? Does it betray a lack of faith by legislators themselves in the fairness of the internal proceedings of legislative bodies? Or is it the

case that the constitutional provisions are so imprecise as to generate contention? In any event, have our Justices advanced a clearer understanding or added complications?

The questions are of course ‘legal’ but they are also ethical and sociological.

I suggest that we read this volume in the context of these and related concerns; |

specifically address some of these in what follows. In order to address these, however, we need to understand the justification of institutional autonomy in the first place.

* See, Upendra Baxi, Liberty and Corruption: The Antulay Case and beysnd (1999: Lucknow, Eastern Book Company.)

xii

Foreword

Whuy INSTITUTIONAL AUTONOMY? ‘This basic question may best be framed just this way: Why should legislators as individual citizens, and legislatures as collective bodies claim immunities not fully available to other bodies of citizens—for example, the ‘free radical agents’ such as dissenting public citizens, whistleblowers, and investigative media persons? Are these latter ‘antibodies’ that require immunisation? One needs to tread cautiously here because the range of privileges and immunities recognised, conterred, or claimed by legislators/legislatures varies. Not all of these have the same weight of history behind them as the privilege of the Members of Parliament to the freedom of speech and expression. Historically, the privilege emerges in the context of a predatory supreme executive power but extends to immunity from legal proceedings for what is said, and for voting, in the House. Take these away and little remains of the idea and the ideals of ‘representative’ democracy.’ This may not be said equally cogently for many other privileges.® In

any

event,

a general

practical

justification

for

maximal

recognition

of

privileges and immunities stems from an earlier notion of parliamentary sovereignty, a justification that has to be ‘structurally adjusted, as it were, in constitutions chat also contain a Bill of Rights and corresponding power of judicial review. It is here that the spectre of endless conflict between our legislatures and courts haunts the moral architecture of the constitutional ordering of the oo pillars of constitutional governance. Obviously, the two institutions can best perform their tasks only with mutual deference for their powers and functions; otherwise they would remain in the ‘state of nature’ waging war against each other, destroying in turn the idea of governance as an inherent joint enterprise. And this pursuit requires institutional comity. On the plane of practical reason, one looks at the ways in which the Indian

Constitution

enunciates

norms

of principled

governance—legislatures and courts.

respect for (wo

major institutions of

At another level, however, we need to ask some different sorts of questions such

as: Is institutional autonomy a sovereign virtue or one among the many cardinal virtues? May we include among the latter the specific virtue of accountability, and what may this mean for the apex court and Parliament? If ‘accountability’ remains at the end of the day a poor cousin of ‘responsibility’ how may we best describe the latter? Is ‘responsibility’ only best thought of as a form of relation between the apex Incidentally, this privilege also extends to the Committees of Parliament and persons (experts and witnesses, or petitioners to Parliament) appearing before them.

“T have in view for example privileges relating to che management of the House or procedures for

prior permission of the Presiding Officer of the House for criminal investigation, prosecution, and

trial of incumbent legislators.

~ See, for a fascinating historical review, Richard IT. Johnson, “Parliamentary Egotisms”: ‘The Clash of Legislatures in the Making of the American (1987), pp. 338-362.

Revolutions

Zhe Journal of American History, 74:2

Foreword

xiii

court and legislature? Or is it terminally owed to those governed—‘We, the people’ in whose name the constitution itself stands legitimised? If otherwise, what obligations of responsibility may be best said to be owed by one institution to the other? What if institutional comity short-changes the people-citizens? Too many questions; you would want to say also that all this is too ‘theoretical’! As to the latter, allow me please to remind you of the adage: ‘Nothing is more practical than a good theory! Let us take a prime example: the difficulties that the Presiding Officers of the Indian legislatures constantly face, in full public gaze, in maintaining and upholding

the obligations ofa modicum of civility and decorum. Much of the legislative time stands squandered thus, often enough by the politics of passion marked by the conduct/practice of the elected public officials in which not merely the practices of

verbal violence but also those of physical altercation remain Of course, there are good legislative days when much work ones seem to exceed them! But the bad days are exceptionally a situation of autonomy without accountability, or power A standard response to this is to insist that that the matter

the ‘order’ of the day. gets done but the bad bad; if so, this is surely without responsibility. may be best left to the

Presiding Officers, leaders of political parties and their ‘Hoor managers’. This then is

what legislative autonomy means. Yet a theory-based approach would require fundamental rethinking of the very idea of legislative [in-House] autonomy. Because legislators have the power and the

duty to help develop a constitutional culture in which values of civility and dignity

prevail, their own in-House conduct has to exemplify these values. A sustained failure to so do has multiplier effects on conduct in other institutions of society, especially in tertiary education® and in legal profession”. Autonomy of the legislative body is of course a supreme value but only as serving the basic ends ofa constitutional democracy. The chronic and at times violent disorders in the legislative chambers suggest that at stake remain the demonstration of power,

not civility in conversation and the dignicy of the representative process. Regarding

the conduct of proceedings in legislative chambers as the exclusive prerogative of the House is not an adequate response to the crisis of representational power; continued disruptions further pose the issue of due legislative deliberation in the making, changing, and unmaking of public policies via legislative acts. Put another way, providing for processes for due legislative deliberative attention is not just an issue regarding the internal management policy but raises a further important concern: citizen-people’s right to mature legislative deliberation. Leaving aside the question whether this is a moral right or a constitutional right, it remains the * | speak here from my lived experience as Vice Chancellor of the South Gujarat (now Veer Narmad) University and the University of Delhi. ” We are all subjected to the sorry spectacle of lawyers’ strikes, in which they go on a rampage because of some provocation or other, by laying sicge to court buildings, combat the police and the court-staff, even try to intimidate justices.

xiv

Foreword

case that legislative performance by the elected public officials remains a mere matter

of grace and largess.

I will not burden this text with similar questions save to suggest that we read this

volume

as assisting a more searching examination

of autonomy and responsibility

of our legislatures and legislators. It is further important to acknowledge that while the latter regularly raise theoretical anxieties concerning the nature and limits of judicial power, this kind of reflexivity stands rarely extended to the realms of in-House legislative autonomy. A SYMMETRICAL YET AN ASYMMETRICAL COMITY Institutional comity remains a difficult virtue. Comity considerations are often disrupted by the will to power, whether legislative or judicial. Further, while the Constitution at one point establishes symmetry of power between Parliament and the Supreme Court, it establishes at another an asymmetrical relation between the two. In a raw sense, symmetrical comity prevails. Legislatures may of course discuss judicial decisions but they may not tell appellate Justices how to arrive at authoritative decisions;

likewise Justices

may

(and

at times

must)

ensure

that

laws

made

by

legislatures remain within the four corners of constitutional legality. Just as Justices may not command the legislatures to make a specific or general law, legislatures may not say that Justices may never venture to legislate in the guise, or under the banner, of interpreting it. This is so because constitutional Justices have not merely the power but also the duty to interpret the Constitution within their oath of office and when

this interpretation results in the enunciation of binding law it does not transgress the Constitution. Likewise, legislature may ‘overrule’ judicial decisions by some willed legislative acts; while the high courts and the Supreme Court of India have the power to determine their constitutional validity, they may not ever deny the plenitude of the power to legislate. If judicial beings/personages may never be hauled up before the legislatures for breach of its privileges, it may be constitutionally inappropriate for Justices to regard legislative overruling of their decisions as contumacious, eligible for punishment under the powers to punish of the contempt of court. Further, if courts are possessed of inherent powers!’ to determine contumacious conduct and to punish it, so are the legislatures equipped with powers to determine and punish the breach of their privileges. This symmetrical comity means, simply, that legislators as well Justices are possessed of the absolute power to decide what may constitute contempt of the court or the breach of parliamentary privilege to a point Inherent powers in law mean powers independent of constitutional discipline. These are preconstitutional powers. Though

Parliament may make a law regulating contempt and breach of

privileges power (the former has been done, the latter still not done alter over 63 years of Indian

Independence and despite demands that this be done), vet such legislation may only furnish a signpost guiding discretionary use of such power but may not substitute the ‘inherent power.

Foreword

XV

of constituting a terminal disadvantage of the basic rights of citizens. As concerns the freedom of the press and the media and human rights and social movement practices, both these ‘logics’ have been contested. The Supreme Court of India has been confronted with some poignant decision-making moments ‘balancing’ the law and practice of parliamentary privileges with the constitutionally enshrined rights of freedom of speech and expression." Yet, asymmetry enters the scene powerfully, indeed! The elected public officials posses the power of the purse and sword in a way the unelected constitutional Justices do not, or may not. Despite some forays in judicial self-determination concerning the

salary-scales and perquisites for the district judiciary, it remains a constitutional fact overall that Parliament finally decides these matters." A deeper asymmetry cries for deliberative attention as well. Unlike the elected

public officials, the appointed/anointed unelected Justices may not be held, in principle, answerable at the bar of the constituency-informed standards of political responsibility. If so, the question surely arises: What other standards constructing responsibility of our Justices remain available?

There is no question that the Indian Constitution authorises Justices to perform

superintendence/invigilation over legislative and executive action. The question lies, for the present purposes, elsewhere: How far, if at all, does this authorisation extend

over the in-House practices of legislative management? I regard the work in your hands as especially instructive in terms of some old and new trends of adjudicatory postures and policy, especially as concerns the power to expel Members of the House”.

"' See for an early, yet pertinent analysis, M. V. Pylee, ‘Free Speech and Parliamentary Privileges in India,’ Pacific Affairs, 35:1, pp. 11-23 (1962). '2 The Supreme Court itself has sought to take over, indeed wrested, the power to appoint and transfer High Court Justices trough the invention ofa system of judicial Collegium whose advice remains now binding on the executive. This has reversed a long period of judicial acquiescence with such powers held by the executive. We now hear murmurs abut constitutional reform that would reinvest this power back with the supreme political executive. Were this to happen, no indictment of contumacious conduct may attach, even when the apex Justices may declare such law unconstitutional as violating an ‘essential feature’ of the ‘basic structure’ of the Constitution. The Indian Parliament stands authorised to impeach Justices for ‘misconduct’—a power freighted with manifest difficulties. The voting procedure for impeachment makes the exercise of this power improbable in real life; further so remain the elements of agreed approaches to ‘misconduct.’ However, Justices may not impeach the ‘duly’ elected legislators as unworthy of holding representative power. Only the legislatures may proceed to make these judgments via the power to ‘discipline’ and even ‘punish’ their own elected kith and kin. Even when this rarely happens, Justices may not step in

because they are not the elected representatives of the people. '? | chink that an early analysis by Professor Enid Campbell remains quite relevant here: see ‘Expulsion of Members of Parliament,’ The University of Toronto Law Journal, 21:1, pp. 1S—43 (1971). The litigation that ensued the summary expulsion of Shri Hardwari Lal from the Haryana legislative Assembly needs to be more fully revisited. | was privileged to counsel him that his expulsion violated the value of democracy as an essential feature of the basic structure of the Constitution

xvi

Foreword

To take another example, the apex court has sustained, against challenges by

some legislators, the rule-making powers of the legislatures. How che rules are made,

and how they are observed or changed, has not been subjected to judicial scrutiny.

One reason for this is that the Constitution (Article 208 as concerns Parliamenc, for

example) so provides. A Member of Parliament or State Legislature must find the remedy for errant exercise of this power on the Hoor of the House; she may not come

before the court arguing that in-House procedures violate any fundamental rights of legislator as a citizen.

However, a deeper reason for judicial reticence is just this: if courts may intervene with these powers, so may Parliament concerning the rules made by the high courts

and the apex court. More generally put: this power signifies a realm of reciprocal autonomy beyond constitutional interlocution, Yo concretise, Article 212 that says

that the ‘validity of any proceedings in the Legislature of a State shall not be called

in question on the ground of any alleged irregularity of procedure means that the otherwise constitutionally venerated “due process’ standards may not appropriately extend to the rules and procedures that remain the exclusive prerogative of the

legislative Chambers.

Legéslators then cease to be citizens, with full entitlement to

challenge the constitutionality of legislative rules dehning procedures for the exercise

of their representative powers. May | urge vou to consider the question of the rule-oflaw and human rights costs thas entailed? It remains vour privilege to say either that no such costs are incurred

in the firse place, or to maintain

that these in any event

remain both necessary and justiftable. I do not wish to burden this text with other instances variously narrated in this volume such as: the publication of officially unauthorised publication of legislative proceedings or the authority of the Speaker in the “absence of any “authorised rules of procedure; nor do T revisit the concerns tramed regarding the ‘power to ‘rescind’ modify” such ‘rules’. Rather the issue here concerns the democratic qualities

and attributes of the deployment of expedient as contrasted with forms of priicipled rule-making

power.

Some

case-narratives

in this volume

indeed

suggest

that

many

as cnunciated by Aesammauda Bharati Case. We put this argument to a telling usc. ay a petitioner: in-person before the Punjab and Hlarvana Tligh Court, as pactiall reflected ea pp. 254 59% ob this volume, Hardwari Lal retrospects on this situation in his Wah ad Laie of Paittamentary Privileges (New Delhi, Allied Publishers, 1979). In a personal note rome (Via TO, P98 he wrote: “TP have freely used vour views regarding the power of Indian legislatures to expel duly clected Members, Iam sorry for omitting to acknowledge vour help... The emission occured ta me atter F had sent the text. Clearhy

an

trate Chict Minister

provoked

by an expose

of his allered

misdeeds

by

his arch

political rival here used the pawer to expel as an aspect of political vendetta. Purthern the Members of the Privileges Committee had to rely on heavy book by Prskine Mav. Gatneentary Practice: Lhe Late, Privileges, Proccedines and Cvage of Cartiamenis a book no longer as relevant to the House of Commons

as if remains for the

Indian legishitares!

V piquant

feature of the situation in Tlarvana

was that most Members of the Committce were net proficicat in Paglish!

Foreword

legislators’ recourse to the courts and

xvii

justices because the scope of Parliamentar y

powers remains from their standpoints, unfair, even unjust. IN LiEU OF A CONCLUSION

Although I have primarily focused on the issues of parliamentary privileges and immunities, and some aspects of legislative/in-House rule-making powers, the concerns raised in this Foreword also extend to a whole range of power and function of our legislatures. This volume bristles with many concerns: for example, the scope of authority of the decisions/rulings of the Presiding Officers (Chapter 6); the legislative power to pass resolutions (Chapter 5); qualifications/disqualifications determinations, including decisions under the Tenth Schedule (Chapters 7 and 8.) Increasingly, the autonomy of the legislative chambers stand contested by legislators themselves; and overall the judicial response has been varied. Even as the Supreme Court of India has notably for the most part sustained the in-House autonomy concerning these matters, the very fact that the court has not declined such writ petitions, but rather fully heard competing contestations to emerge remains important in itself as affirming the rights to constitutional remedy for legislators as citizens. Some high court and Supreme Court decisions, here fully annotated and assembled, have sought to regulate the design and the detail of inHouse autonomy, especially as concerns the Tenth Schedule where both the political and constitutional stakes are high indeed. Overall, judicial interventions do suggest the potential of a rule of law based and human rights friendly perspective. It is a healthy sign of the maturity of our democratic governance that legislators and legislatures have accepted this expansion of democracy-enhancing forms of judicial invigilation as not disturbing or even shaking the foundations of institutional comity. Equally important remains exponentially growing public and popular concerns about everyday, as well as long-term, forms of accountability/responsibility of our legislatures and courts as constituting the future registers of republican and democratic constitutional governance for India. There is no question that some archaic aspects of the law and practice of parliamentary privileges and immunities cry out for a compelling review. The question then is how, and how far, may we proceed? A first step is to test the logic and languages of parliamentary privileges and immunities, and powers of in-House decision-making, within some new and deeper approaches towards the understanding of the notion of rule of law.'* A second step '4 See especially, Evan Fox-Decent, ‘Parliamentary Privilege and the Rule of Law, Canadian Journal

of Administrative Law and Practice, 20: 117-10 (2009). The learned author imaginatively suggests that the issue at hand is not one of legislative or adjudicative supremacy or power but rather a concern about the ‘field-specific’ understanding of the articulation of legislative privileges and immunities. The argument here is both doctrinal and ethnographical, the latter because Justices need to develop a fine understanding of the ways in which Parliamentary officials remain torn

xviii

Foreword

would be based on an insistence of at least constitutional ‘moral’ rights of the electorate to have enacted duly deliberated laws. This right is almost constantly denied in actual Indian parliamentary legislative practice, given the fact that the bulk of legislative time

is squandered in populist performances leaving very little scope for due legislative deliberation concerning the translation of public policy into legislative enactments.

If so, surely we need to consider different frameworks. One such stand is advocated by Professor Keith Henderson's efforts at preparing a ‘toolkit’ for monitoring and reporting a ‘model annual state of Parliament Report’ developing PTAS (Parliamentary Transparency and Accountability Standards.'*) Another related framework is a citizen audit of parliamentary (legislative) functioning'®. Equally valuable is the Centre for Policy Research’s programme of monitoring the legislative agenda of Parliament. These initiatives are precious indeed as they provide reliable quantitative data as well as scientific analysis. Parliamentarians and legislators as well as citizens of India stand

to learn much from such endeavours. A more important long term gain may lie in

the marshalling of informed public opinion summoning efficient and civil conduct of parliamentary and legislative business and time. Yet, the privileges and immunities of Parliaments and legislatures, as thus far practised, hang like a Damocles’ sword over citizen—oriented attempts at securing both functional and democratic social audit. This should not be so. And I may venture to hope that such initiatives would be eventually welcomed and even supported by our

legislators/legislatures? Warwick and Delhi 16 November, 2010

UpeENDRA Bax!

between House management and the rule of law imperatives and the latter because ‘parliamentary privilege and the rule of law, properly understood, support rather than oppose one another (emphasis in the original text.) '> See, http://www. ifes.org/publication/9556b1 1 1cf29cbd9dc859c7d9f43 (visited September 4, 2010.)

'6 See as to this, the notable efforts of SOCIAL WATCH, India: Citizens Report on Governance and

Development: 2008-2009 (New Delhi, Daanish Books) 31~59. See also, Rajesh K. Jha, Evaluating

Parliamentary Committees and the Committee System: Changing Contours of Governance and Policy (Social Watch Perspective Series, 2009.)

Preface

The legislature and the judiciary are two important pillars of our democratic and constitutional edifice. The legislature, as a representative and law-making body, seeks to address the concerns of the people and guides public governance for securing

progress and development. The judiciary, on the other hand, as the custodian of

the Constitution, protects the rights and liberties of the citizens and helps establish the supremacy of the rule of law and equality of all citizens before law. Under the Constitution, both the institutions enjoy relative autonomy and independence in their respective spheres of activity. They have evolved, over the years, as mature and dynamic institutions, strengthening the edifice of democracy. In their endeavour to meet the hopes and aspirations of the people, they have functioned with great sense of restraint and responsibility. However, the legitimate concerns to guard their autonomy and independence under the Constitution have led to occasional differences of opinion between the two. Several of these relate to Parliament's power to amend the Constitution, parliamentary privileges and the power of the legislature to punish for its contempt, the decisions given by the Presiding Officers of Parliament and State Legislatures under the Anti-defection Law, etc. The Supreme Court of India and the high courts have, from time to time, delivered several important judgments pertaining to these and other matters in relation to the functioning of Parliament and the State Legislatures. These judicial pronouncements have enormously contributed to the growth of constitutional law in India, facilitating better understanding of the intent and purpose of the

concerned constitutional provisions. Keeping in view this larger objective as also the dynamics of the relationship that exists between the legislature and the judiciary under the Constitution, it was considered appropriate to compile the significant judicial pronouncements, which are hitherto not available in the form of a single document. This matter was discussed with some Members of Parliament having profound legal experience; they also endorsed the need for putting together such a publication, which would help understand the constitutional provisions relating to Parliament and

Xx

Preface

the State Legislatures, and the judicial approach to their interpretation, in the proper perspective.

The project to prepare The Legislature and the Judiciary: Judicial Pronouncements on

Parliament and State Legislatures was assigned to the prestigious Indian Law Institute (ILI), New

Delhi. Accordingly, a list of topics to be included

in the volume was

prepared after mutual consultations. The ILI prepared a prototype chapter on ‘Power of Expulsion’ under the main topic “Powers, Privileges and Immunities of Parliament

and State Legislatures’, which was referred to some Members of Rajya Sabha as well as Dr Raghbir Singh, Chairman, Copyright Board, among others for their valuable

comments and suggestions in order to make the volume comprehensive and useful. A list of topics to be covered in the compendium and the list of the cases relating to each topic was also sent to the referees for their valuable comments and suggestions. In the

light of the recommendations received, the ILI was requested to design and develop

this book. The book thus consists of two sections. Section 1, called the ‘Analysis of Case Laws’, contains the issues and relevant articles of the Constitution with their analysis and interpretation, while Section 2, which is referred to as the ‘Summary of Cases’ contains the summary of the judgments of the relevant cases for further reference. The draft manuscript prepared by the ILI was sent to Dr Raghbir Singh for scrutiny and

comments. The corrections and suggestions made and queries raised by him in the

draft manuscript were accordingly carried out by the ILI. I am deeply beholden to His Excellency Shri Mohammad Hamid Ansari, Hor’ble Vice-President of India and Chairman, Rajya Sabha, for his constant encouragement in the conceptualisation and execution of this project. This volume is the first in the Rajya Sabha Research Publications Series. I hope that Members of Parliament, academics, researchers as well as general readers, who are interested in the functioning of parliamentary institutions, especially

the interface between the legislature and the judiciary, will find this publication useful.

Comments and suggestions for further improvement of the publication will be greatly

appreciated.

New Delhi 16 November, 2010

Dr V. K. AGNIHOTRI Secretary-General Rajya Sabha

Acknowledgements

I wish to express my deep gratitude to Professor Upendra Baxi, an eminent jurist,

for contributing an illuminating Foreword for this publication. I express my sincere

thanks to Dr K. N. Chandrasekharan Pillai, former Director, Indian Law Institute

(ILI); Shri Dalip Kumar, Registrar, ILI; Ms Lisa P. Lukose, Shri P. Puneeth and

Ms Arya A. Kumar, Assistant Research Professors, ILI; and others associated with the

preparation of the volume The Legislature and the Judiciary: Judicial Pronouncements on Parliament and State Legislatures. | also express my profound gratitude to Dr Raghbir Singh, former Secretary, Ministry of Law and Justice, Legislative Department, former Secretary, National Commission to Review the Working of the Constitution,

Chairman, Copyright Board, for minutely scrutinising the manuscript prepared by

ILI. His useful suggestions and comments have greatly enriched the contents and utility of this publication. I] am grateful to the eminent legal luminaries, namely,

Shri Arun Jaitley, Member

of Parliament (MP);

Dr Abhishek Manu

Singhvi, MP

and Dr E. M. Sudarsana Natchiappan, MP, for offering their suggestions which have greatly benefitted in preparing the book. I would also like to place on record my appreciation for the contributions made by Shri N. C. Joshi, Secretary; Shri N. K. Singh, Joint Secretary; Shri S. D. Nautiyal,

Director;

and

other

officers

belonging

to

the

Library,

Reference,

Research,

Documentation, Information, Service (LARRDIS), Rajya Sabha Secretariat, for their

notable assistance in the execution of this project.

I also take this opportunity to compliment the Publishers, Orient Blackswan Pvt.

Ltd., especially Ms Hemlata K. Shankar, who has extended her full cooperation and support in bringing out this book. New Delhi 16 November, 2010

Dr V. K. AGNIHOTRI Secretary-General Rajya Sabha

me

aoe

0

a

ee

Introduction

The Constitution of India has brought into existence the federal form of government for the governance of the country with a proper division of legislative and executive

power between the Union and the States. It also envisages, broadly, the theory of

separation of powers and rule of law. In a country purported to be governed by rule of

law, the legislative organ that exercises legislative power occupies a primary position in

the governance of the country. Under the scheme of the Indian Constitution, both the Union legislature, i.e. Parliament, and the State Legislatures occupy such an important position. In view of this, several provisions have been made in the Constitution providing for different aspects relating to Parliament and the State Legislatures. The provisions of our Constitution relating to both Parliament and the State Legislatures are, broadly speaking, in identical terms, with the exception of their compositions, provisions relating to which materially differs from each other. Unlike in the British constitutional system, where the House of Commons has the power to provide for or regulate its own constitution, neither Parliament nor the State Legislatures in India can claim such a power. Express provisions have been made in that regard in our written Constitution. Express provisions have also been made with respect to several other aspects, viz. power to make rules regulating procedure and the conduct of business; protection of proceedings of Parliament and the State Legislatures from judicial scrutiny on the ground of procedural irregularity; protection of Officers and Members of Parliament and the State Legislatures from judicial proceedings for anything done in exercise of the power vested in them by or under the Constitution for regulating procedure or the conduct of business or for maintaining order in Parliament or, as the case may be, State Legislature; freedom of speech in Parliament and the State Legislatures; publications of the proceedings of Parliament and the State Legislatures; voting in the House; introduction and passing

of Bills; sessions, prorogation and dissolution of the House, etc. However, express provisions made in the Constitution are not exhaustive in every respect. Particularly provisions relating to powers, privileges and immunities of Houses, Committees and Members of Parliament and the State Legislatures are not

XXiVv

Introduction

exhaustive. The Constitution specifically defines only a few privileges, which are not sufficient enough to enable Parliament and the State Legislatures and the Members and Committees thereof to act and discharge their high functions effectively without any interferences or obstructions from any quarters. Thus, the power has been conferred on both Parliament and the State Legislatures to define, by law, additional powers,

privileges and immunities that are required for the purpose of effective discharge of their functions without fear or favour. Until so defined, the Constitution provides for assimilation of those powers, privileges and immunities enjoyed by the House of Commons of Parliament of the United Kingdom and of its Members and Committees immediately prior to the commencement of our Constitution. An overview of all the provisions of the Constitution relating to Parliament and the State Legislatures suggests that the Constitution allows both Parliament and the State Legislatures to enjoy internal autonomy to certain extent.

In the scheme of the Indian Constitution, the extent to which Parliament

and the State Legislatures enjoy internal autonomy

is to be determined by the

independent judiciary, the existence of which is critically important for upholding

the rule of law. Parliament and the State Legislatures do not enjoy the power or

privilege to determine the extent of their respective internal autonomy envisaged

in our Constitution. Determination of the extent of internal autonomy involves

interpretation of the relevant provisions of the Constitution and it is the judiciary,

specially the Supreme Court, which has the final authority to interpret the provisions

of the Constitution. Ever since the Constitution of India came into force, several issues, involving constitutional interpretation, relating to Parliament and the State Legislatures have come up before the high courts and the Supreme Court for adjudication. Provisions of the Constitution dealing with different aspects of Parliament and the State Legislatures have, thus, been subjected to judicial interpretation in several cases. Generally speaking, the issues that have come up for consideration before the judiciary mainly relate to the

following broad areas:

1. Existence, extent, content and scope of powers, privileges and immunities of the Houses of both Union and the State Legislatures and their Committees, Officers and Members.

2. Manner of exercise of such powers, privileges and immunities vis-a-vis the scope

for judicial review under the scheme of our Constitution. 3. Proceedings in the House and Committees thereof—issues relating to validity of such proceedings and rights of the Members to participate in such proceedings. 4, Qualification and disqualification of Members. The above enumeration is only illustrative but by no means exhaustive. They broadly

indicate the main issues dealt with by the courts. The present compendium consists of judicial pronouncements rendered by high courts and the Supreme Court in several cases touching upon various aspects.

Introduction

XXV

The volume consists of two sections. Section 1 provides restatement of the growth of law through judicial interpretations of provisions relating to Parliament and the State Legislatures. It mainly encapsulates the principles of law laid down by the high courts

and the Supreme Court and states, precisely, the current position of law. Section 2 consists of a brief summary of judgments. Almost all the significant rulings of the high

courts and the Supreme Court relating to Parliament and the State Legislatures have been incorporated in the book. This consolidation of legal information is intended to facilitate a clear understanding of the existing legal position.

SECTION |

ANALYSIS OF CASE LAWS

I Powers, Privileges

and Immunities of

Parliament and State Legislatures

The Constitution of India broadly envisages a federal form of governance but with a tilt towards the Centre. India is an indestructible Union of destructible units.' The crux of a federal Constitution is the division of powers and functions between the Centre and the States. The Constitution of India provides for distribution of legislative and executive functions between the Centre and the States, whereas it provides for an

integrated judicial system. The executive powers of the Union and the States are coextensive with that of their respective legislative powers.” Part XI, Chapter I (Articles 245 to 255), read with the Seventh Schedule of the Constitution, provides for distribution

of legislative powers. It provides for a two-fold distribution of powers from the point of view of: (i) territory,’ and (ii) the subject matter.‘ The legislative power of the Union is exercised by Parliament which consists of two Houses: (i) Council of States (Rajya

Sabha), and (ii) House of the People (Lok Sabha). The legislative power of the States is conferred on the State Legislatures. At present the State Legislatures in Andhra Pradesh, Bihar, Maharashtra, Madhya Pradesh, Jammu and Kashmir, Karnataka and

Uttar Pradesh are bi-cameral having two Houses: (i) Legislative Council (Vidhan

Parishad), and (ii) Legislative Assembly (Vidhan Sabha). In all other States, the State

Legislature is unicameral having only one House, i.e. Legislative Assembly. Provisions

relating to the composition, powers, privileges, immunities, procedures, etc. of both Parliament and State Legislatures are contained in Chapter IJ of Part V and Chapter IT] of Part VI of the Constitution respectively. ' Raja Ram v. The Hon'ble Speaker, Lok Sabha and Ors, (2007) 3 SCC

184.

? Articles 73 and 162 of the Constitution. Also see Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549. > Article 245. * Article 246 read with Seventh Schedule of the Constitution. Articles 249, 250, 252 and 253 of the Constitution provide for exceptions to the scheme of distribution of powers envisaged therein. Residuary power of legislation has been conferred exclusively on Parliament under Article 248.

4

Analysis of Case Laws

The

provisions

of our Constitution

relating to the legislatures are, broadly

speaking, similar for the Union and the States with the exception of the Constitution of Parliament and the composition of its two Houses, provisions of which differ materially from those relating to the composition of the legislatures of the State and their Houses, where a State has more than one House.° With a view to enable Parliament and the State Legislatures to act and discharge their high functions effectively, without any interference or obstruction from any

quarter and without fear or favour, certain powers, privileges and immunities are

conferred on them by the Constitution. Powers, privileges and immunities conferred on Parliament and the State Legislatures by our Constitution are mutatis mutandis in identical terms.

In India, privileges and immunities are available not only to the Houses of Parliament and the State Legislatures but also to Committees and Members thereof. Further, certain privileges and immunities are also available to those who, though not

Members ofa House, are under the Constitution entitled to speak or take part in the proceedings ofa House or any Committee thereof. However, the constitutional provisions relating to powers, privileges and immu-

nities of the Houses, Committees and Members of Parliament and the State Legislatures have not exhaustively enumerated them. The Constitution specifically defines only a few privileges, but for the rest, it leaves leeway for Parliament and the State Legislatures, as the case may be, to define them by law. Until so defined, the Constitution provides for the assimilation of those powers, privileges and immunities enjoyed by the House of Commons of Parliament of the United Kingdom and of its Members and Committees immediately prior to the commencement of our Constitution.°

Article 105 of the Constitution defines the powers, privileges and immunities of the Houses of Parliament and of the Members and Committees thereof. Identical provisions, with reference to the State Legislatures, have been made under Article 194

of the Constitution. These are the two main articles dealing with the powers, privileges

and immunities of Parliament and the State Legislatures. In addition, Articles 118,

122, 208 and 212 of the Constitution also confer certain powers and immunities. All

the relevant provisions have been reproduced hereunder:

Artic.te 105. POwers, PRIVILEGES, ETC. OF THE HOUSES OF PARLIAMENT AND OF THE MEMBERS AND COMMITTEES THEREOF 1. Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. > Seervai, H. M., 2 Constitutional Law of India, p. 2143. ° The Constitution (Forty-fourth Amendment) Act, 1978, though deleted reference to “House of Commons of Parliament of United Kingdom’, has left the position substantially intact.

Powers, Privileges and Immunities of Parliament and State Legislatures

5

2. No Member of Parliament shall be liable to any proceedings in any court in respect of any thing said or any vote given by him in Parliament or any Committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. 3. In other respects, the powers, privileges and immunities of each House of Parliament, and of the Members and the Committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined,’ [shall be those of that House and of its Members and Committees immediately before the coming into force of Section 15 of the Constitution (Forty-fourth

Amendment) Act, 1978.] 4. The provisions of Clauses (1), (2) and (3) shall apply in relation to persons who by

virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any Committee thereof as they apply in relation to Members of Parliament.

ArTIcLe 118. RULES OF PROCEDURE

1. Each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business. 2. Until rules are made under Clause (1), the rules of procedure and standing orders in force immediately before the commencement of this Constitution with respect to the legislature of the Dominion of India shall have effect in relation to Parliament, subject to such modifications and adaptations as may be made therein by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be. 3. The President, after consultation with the Chairman of the Council of States and the Speaker of the House of the People, may make rules as to the procedure with respect to joint sittings of, and communications between, the two Houses.

4. Ata joint sitting of the two Houses, the Speaker of the House of the People, or in

his absence such person as may be determined by rules of procedure made under Clause (3), shall preside.

ArTICLE

1. The the 2. No this

122.

Courts

NOT

TO

INQUIRE

INTO

PROCEEDINGS

OF PARLIAMENT

validity of any proceedings in Parliament shall not be called in question on ground of any alleged irregularity of procedure. officer or Member of Parliament in whom powers are vested by or under Constitution for regulating procedure or the conduct of business, or for

7 Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 15 for the words ‘shall be

those of the House of Commons of Parliament of the United Kingdom, and of its members and

committees, at the commencement of this Constitution (w.e.f. 20-06-1979).

Analysis of Case Laws

maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

Articte 194, POWERS, PRIVILEGES, ETC. OF THE HOusES OF LEGISLATURES

AND OF THE MEMBERS AND COMMITTEES THEREOF

I. Subject to the provisions of this Constitution and to the rules and standing orders

regulating the procedure of the legislature, there shall be freedom of speech in the legislature of every State.

. 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. . In other

respects,

the powers,

privileges and

immunities

of a House

of the

Legislature ofa State, and of the Members and the Committees ofa 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]. . 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 ofa State or any Committee thereof

as they apply in relation to Members of that legislature. Articte 208. RULES OF PROCEDURE

1. A House of the Legislature ofa State may make rules for regulating, subject to the

provisions of this Constitution, its procedure and the conduct of its business.

2. Until rules are made under Clause (1), the rules of procedure and standing orders

in force immediately before the commencement of this Constitution with respect to the legislature for the corresponding Province shall have effect in relation to the

legislature of the State subject to such modifications and adaptations as may be made therein by the Speaker of the Legislative Assembly, or the Chairman of the Legislative Council, as the case may be. In a State having a Legislative Council the Governor, after consultation with the

Speaker of the Legislative Assembly and the Chairman of the Legislative Council, may make rules as to the procedure with respect to communications between the two Houses.

* Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 26, for the words ‘shall be those of the House of Commons

of Parliament of the United Kingdom,

and of its members and

committees, at the commencement of this Constitution’. (w.e.f. 20-06-1979).

Powers, Privileges and Immunities of Parliament and State Legislatures

7

ARTICLE 212. COURTS NOT TO INQUIRE INTO PROCEEDINGS OF THE LEGISLATURE

1. The validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. 2. No officer or Member of the legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. Various questions relating to the existence, availability, interpretation and application of powers, privileges and immunities of both Parliament and the State Legislatures have been raised frequently before the high courts and the Supreme Court in several cases. Judicial pronouncements rendered in such cases have been encapsulated in this chapter under appropriate headings. Since powers, privileges and immunities of Parliament and State Legislatures are mutatis mutandis in identical terms; judicial pronouncements rendered in the context or with reference to Parliament apply mutatis mutandis to the State Legislatures as well and vice versa.

Powers, PRIVILEGES AND IMMUNITIES ExPRESSLY CONFERRED BY THE CONSTITUTION Freedom of Speech and Protection from Prosecution

for What is Said in the House

Refer to discussion in Chapter 2 titled ‘Powers, Privileges and Immunities of Members’.°

Publication of Proceedings of the Legislatures The Constitution of India provides immunity from judicial proceedings to the Members of Parliament as well as to the Members of Legislature of a State in respect of anything said or any vote given by them in Parliament or, as the case may be, Legislature of a State. By virtue of the second part of common Clause (2) Articles 105

and 194, a person who publishes a report, paper, votes or proceedings, by or under the authority of Parliament or, as the case may be, State Legislature, is given protection

in the same broad terms against liability to proceedings in any court connected with such publication. Clause (2) of Article 105 provides that “... no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings’. Identical provision with

reference to the legislature of a State has been made in Clause (2) of Article 194 of

the Constitution. Further, in the scheme of our Constitution, Parliament and the

State Legislatures are entitled to wider powers, privileges and immunities by virtue ? Page 55.

8

Analysis of Case Laws

of Articles 105(3) and 194(3). In view of these provisions, courts in India have been

asked to consider several issues relating to publications of proceedings of Parliament and the State Legislatures. The judicial discourses on such issues have been discussed

hereunder.

Scope and Ambit of Protection of Publications under Articles 105(2) and 194(2)

By virtue of the second part of common Clause (2) of Articles 105 and 194, a person

who

publishes a report, paper, votes, or proceedings, by or under the authority

of Parliament or, as the case may be, State Legislatures, is given protection in the same broad terms against liability to proceedings in any court connected with such publication. A plain reading of these provisions suggests that the publications made

outside the authority of either House of Parliament or the State Legislatures do not enjoy the immunity accorded under these provisions. In Dr Jatish Chandra Ghosh

v. Harisadhan Mukherjee,'” the apex court was asked to consider the question as to

whether the publication of a disallowed question by a Member of an Assembly comes within the powers, privileges and immunities of the Members of the House. It was

contended, before the apex court, that the question sought to be asked by a Member of a Legislative Assembly, even though disallowed by the Speaker, formed part of the proceedings of the House, and, as such, their publication would not attract the

provisions of the Indian Penal Code. Since the publication, in the instant case, was

made outside the authority of the House, it was held by the court that the Clause (2) of Article 194 was of no assistance to the appellant. However, the reliance was placed

in the course of the arguments on the provisions of Clause (3) of Article 194(3) of

the Constitution.

With

reference to the same,

it was held that there is no absolute

privilege in favour of a Member of the legislature in respect of a publication of a question at the instance of the Member who had sought to put it in the House, but was disallowed by the Speaker, when that question contained defamatory imputations

regarding the character of a person. The court came to the conclusion that the legal '“ AIR

1961 SC 613. Also see Dr Jatish Chandra Ghosh v. Harisadhan Mukherjee and Ors, AIR

1956 Cal 433: 60 CWN 971; Suresh Chandra Banerjee v. Punit Goala, AVR 1951 Cal 176:55 CWN 745. The prosecution, in Suresh Chandra Banerjee, related to publication in the Loka Sevak of a speech in the Legislative Assembly by Dr Suresh Chandra Banerjec, a member of that Assembly. Harris, C. J. presiding over the Bench pointed out that Clause (2) of Article 194 did not protect

publication unless it was authorised by the State Legislature and protection was given to only one class of reports, which, according to the ordinary rules of construction, must be taken to imply that no other class of reports was protected. Ex pressio unius exclusio alterius. It was further held that the rule laid down in the case of Wason v. Walter, (1869) 4 Q. B. 72 cannot be extended to

this country and the ordinary criminal law of the land must apply so long as reports of proceedings of the Legislative Assembly were not treated as privileged under the Indian Law. The principle of the decision in Wason v. Walter cannot be extended to this country in view of the Indian Law of

Defamation which does not exempt publication of the proceedings of the legislature from the purview of the law.

Powers, Privileges and Immunities of Parliament and State Legisiatures

9

position is undisputed that unless the appellant can make out an absolute privilege, in his own favour, in respect of the publication, which is the subject matter of the charge in this case, the prosecution against him cannot be quashed. Given that he has no such absolute privilege, he must take his trial and enter upon his defence, such as he may have. Thus, it is clear from the decisions of the courts that the scope and ambit of

protection available to persons by virtue of second part of Articles 105(2) and 194(2)

is limited only to the publications made by or under the authority of the House concerned but not otherwise. However, Article 361-A, which was inserted by the

Constitution (Forty-second Amendment) Act, 1978, extended the protection even to

publications made outside the authority of Parliament or the State Legislatures subject to certain exceptions. It reads as follows: ArtTICLE 361A.

PROTECTION OF PUBLICATION OF PROCEEDINGS OF

PARLIAMENT AND THE STATE LEGISLATURES

1. No person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature of a State, unless the publication is proved to have been made with malice: Provided that nothing in this clause shall apply to the publication of any report of the proceedings of a secret sitting of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature of a State. 2. Clause (1) shall apply in relation to reports or matters broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station as it applies in relation to reports or matters published in a newspaper. Explanation: \n this article, ‘newspaper’ includes a news agency report containing material for publication in a newspaper. By virtue of Article 361A, publication of a substantially true report of any proceedings of Parliament or the State Legislatures is immunised from both civil and criminal proceedings unless the same is proved to have been made with malice. However, the publication of proceedings of a secret sitting of either House of Parliament or the State Legislature does not enjoy any immunity from prosecution. Combined reading of these constitutional provisions and judicial pronouncements lead to the following conclusions: * Publications of proceedings made by or under the authority of either House of Parliament or Legislative Assembly or, as the case may be, either House of Legislature of a State is immunised from court proceeding by virtue of second part of the common Clause (2) of Articles 105 and 194.

10

Analysis of Case Laws

* Publications made outside the authority of Parliament or, as the case may be, legislature of a State does not fall within

194(2).

the purview of Articles

105(2)

and

¢ Publications made without the authority of Parliament or, as the case may be, legislature of a State is immunised, by Article 361A, from civil and criminal

proceedings subject to the following conditions: (i) Report of the proceedings so published should be substantially true; (ii)

Publication should have been made without malice;

(iii) Publication so made should not contain the report of the proceedings of the secret sittings of the either House of Parliament or, as the case may be, State

Legislatures.

Privilege of Legislature to Prohibit the Publication of its Proceedings" ' The question relating to the freedom of press under Article 19(1)(a) vis-a-vis the right

of legislatures to prohibit publication of its proceedings arose for the consideration of the apex court in M. S. M. Sharma v. Sri Krishna Sinha and Ors.12 The apex court recognised the right of the legislature to prohibit publications of its proceedings as one of the privileges available to the legislatures in India as a part of the inheritance

from the House of Commons under Articles 105(3) and 194(3). It was observed that

the House of Commons had at the commencement of our Constitution the power

or privilege of prohibiting the publication of even a true and faithful report of the

debates or proceedings that take place within the House. A fortiori, the House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate or garbled version of such debates or proceedings. The latter part of Article 194(3)

confers all these powers, privileges and immunities on the Houses of the Legislature

of the Strate, as Article 105(3) does on the Houses of Parliament. Thus, the court was of the opinion that Article 19(1)(a) and Article 194(3) have to be reconciled and the

only way of reconciling the same is to read Article 19(1)(a) as subject to the latter part of Article 194(3) of the Constitution of India. However, in view of Article 361A, which guaranteed the right of the media to report

freely and without censorship the proceedings in Parliament and the State Legislatures subject, of course, to certain exceptions, the question relating to the privilege of the

legislatures to prohibit publications of proceedings needs to be revisited."

'' Though it is considered to be one of the unenumerated privileges, this aspect has been discussed in this part in order to discuss all the aspects of publications under the common heading. '2 AIR 1959 SC 395: [1959] Supp 1 SCR 806. > D.

Murugesan

v. The Hon'ble Speaker (Thiru Sedapatti R. Muthiah)

Tamil Nadu

Legislative

Assembly, AIR 1995 Mad. 260, which was decided much after introuction of Article 361A has not resorted to consider the issue in the light of the said provision. The court relied on M. S. M. Sharma and UP Assembly cases decided before the introduction of Article 361A and decided the case accordingly.

Powers, Privileges and Immunities of Parliament and State Legislatures

II

Power to Make Rules to Regulate Procedure and Conduct of Business Every deliberative body like Parliament needs certain rules of procedure to conduct its business. Article 118 confers rule-making power on each House of Parliament. Similar power has been conferred upon the State Legislatures under Article 208 of the Constitution. The House is entrusted with the power to set out the manners to do its business the way it wishes. However, the power of Parliament to regulate its procedure and conduct of its business is subject to the provisions of the Constitution.'4 The legislature is vested with the complete jurisdiction to carry out its proceedings in accordance with its rules of business.!° One of the important issues that need to be elaborated is the interference by the courts with the rules of procedure or their administration. There are many cases that have dealt with the issue along with other important aspects. Some of them have directly dealt with the question while others have made passing remarks. Nature of Rules The

rules

made

under

Article

118(1)

or Article

208(1)

are

subject

to

other

provisions including Article 194 of the Constitution and they do not have statutory force.'© However,

the rules framed under the said provisions (if otherwise valid)

constitute ‘procedure established by law’ within the meaning of Article 21 of the Constitution."

Judicial Interference with Rules of Procedure

In S. Godavari Mishra v. Speaker, Orissa Legislative Assembly,"* it was observed that the courts have no power to interfere with the rules of procedure or their administration unless there is a contravention of some provision of the Constitution. Each House has the absolute right of interpreting its rules and the courts have no jurisdiction to interfere with the Speaker's discretion in the matter of application of the rules relating to the internal management of the House.'? The courts recognise the basic difference between complete lack of jurisdiction and the improper or irregular exercise of jurisdiction. In the former case, an action of the legislature would be w/tra vires, but not in the latter case.

'4 For example, the rules framed under Article 208, which is similar to Article 118, were held to be subject to the fundamental rights guaranteed under Part III of the Constitution in Jn Re Article 143 of the Constitution of India, AIR 1965 SC 745. It was observed that the rules made for exercising power under Article 194(3) would be subject to fundamental rights of the citizens. '5 Infra note 20 (A. J. Faridi case) at 1191, paragraph 11. '6 Chhabildas Mehta, Infra note 26. '7 M. S. M Sharma, Supra note 12. '® AIR 1953 Ori 111. '9 Anand Bihari Mishra v. Ram Sahay, AIR (39) 1952 MB 31 (Gwalior Bench).

12

Analysis of Case Laws

In A. fj. Faridi v. Chairman, UP Legislative Council,” the high court (Lucknow

Bench) had to decide whether Rule 143 of the Rules of Procedure and the Conduct

of Business of the UP Legislative Council is uétra vires the rule-making power under

Article 208 of the Constitution. It was observed that ‘under Article 208(1) the rules

which may be framed by the State Legislature have to be subject to the provisions

of the Constitution. But this only means that the rules which may be framed for

regulating the procedure of the House and the conduct of its business are not to be

such as may contravene an express provision in the Constitution’.*' It was held that a rule framed by a House of a Legislature under Article 208(1) would not be invalid

merely because it involves some restriction upon the otherwise unregulated rights of the Members of a legislature. Effect of Non-compliance with the Rules of Procedure

In M. S. M. Sharma v. Shri Krishna Sinha,” it was observed: ‘No court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business’. Mere non-compliance with the Rules of Procedure

cannot be a ground for issuing a writ under Article 32 of the Constitution. In this case,

the Supreme Court was of the view that even though the legislature ‘may not have

strictly complied with the procedural law laid down for conducting its business, that

cannot be a ground for interfering by this Court under Article 32 of the Constitution’.? Beg, J. in Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr.** has reiterated this view and observed that ‘a notice issued by the Speaker of a Legislature for the breach of its privilege cannot be questioned on the ground that the rules of procedure relating to proceedings for breach of privilege have not been observed. All these are internal matters of procedure, which the Houses of Parliament themselves regulate’. Authority of the Speaker in the Absence of any Specific Rule In Prakash Kant v. The Speaker of Uttaranchal Assembly, Dehradun,” it was observed that it is crystal clear that in the absence of any rule, the Speaker has the exclusive prerogative to adopt such rules as they were with necessary modifications, if any. A State Legislature is not a subsidiary of Parliament so as to adopt per force or enforce their rules of business. It performs a sovereign function coupled with absolute prerogative to regulate the procedure within the constitutional parameters. A court cannot usurp such authority. A writ under Article 226 cannot be availed to enforce a particular procedure or practice. It was further observed that Article 118 is analogous 20 AIR 1963 All 75.

2! Id. Paragraph 35. 22 AIR 1960 SC 1186. Also see, Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 217.

?3 Id. Paragraph 10; Also see Raj Narain Singh v. Atmaram Govind and Anr, AJR 1956 All. 319. 4 AIR1975 SC 2299: 1975 (Supp) SCC 1: [1976] 2 SCR 347. 25 AIR 2002 Urr. 11 (13).

Powers, Privileges and Immunities of Parliament and State Legislatures

13

to Article 166, both being non-mandatory in character; rules made hereunder are

directory in nature and simply for convenience of transaction of business of Parliament

or the Government. They are more in the nature of code of instruction. Any deviation or non-compliance thereof does not entail any civil consequence to entitle any citizen to invoke Article 226. Power to Rescind or Modify Rules In Chhabildas Mehta, MLA and Ors v. The Legislative Assembly, Gujarat State and Ors,”® the basic issue was whether the rules framed under Article 208 were binding on the House at all times. Looking back at the privileges enjoyed by the House of Lords, the court concluded that there was indeed a privilege to control its own conduct and procedure. “This being a privilege enjoyed by the House of Lords at the commencement of the Constitution would be incorporated in Article 194(3) unless it is excluded by an inconsistent provision of the Constitution’ and ‘moreover, the rule making power

conferred under Article 208(1) is by its very words subject to the other provisions of the Constitution which include Article 194(3) and, therefore, the privilege claimed under Article 194(3) cannot be excluded on the ground that it is inconsistent with

Article 208(1)’. Furthermore, the House which has the power to make rules can also alter or rescind them. ‘There is no limitation placed by the Constitution on the power of the House to modify or rescind the rules. Conclusion

The law laid by the courts in the cases discussed above suggest that the rules framed

under Articles 118 and 208 are only directory in nature. Non-compliance with

the rules itself does not provide a ground for judicial interference. But, the rules so made are subject to the other provisions of the Constitution including Part III of the

Constitution.

Immunity from Judicial Review Refer to Chapter 14 for discussion relating to the immunity from judicial review provided under Articles 122 and 212 of the Constitution.”’ OTHER Powers, PRIVILEGES AND IMMUNITIES

NOT ENUMERATED IN THE CONSTITUTION

As mentioned earlier, the powers, privileges and immunities of Parliament and the State Legislatures have not been exhaustively enumerated in the Constitution.

Freedom of speech, immunity from court proceedings for anything said or any vote

6 (1970) 11 GLR 729. 27 Page nos. 132-38.

14

Analysis of Case Laws

given in Parliament or the State Legislatures or any Committee thereof, immunity

from court proceedings for any publication by or under the authority of either House of Parliament or the State Legislatures, etc. are some of the privileges and immunities

that are expressly enumerated in the Constitution. These enumerations are just the tip of the iceberg. The major task has been left to be accomplished by Parliament and

the State Legislatures under Articles 105(3) and 194(3) respectively. Sufficient leeway has been provided for Parliament and the State Legislatures, under Articles 105(3)

and 194(3) respectively, to define, by law, from time to time their respective powers,

privileges and immunities and that of their Committees and Members. However,

until so defined, transitory provisions were made, under those articles [as they stood

before the Constitution

(Forty-fourth Amendment)

Act,

1978]

to confer on each

House, both of Parliament as well as of the State Legislatures, and its Committees and

Members the powers, privileges and immunities enjoyed by the House of Commons of Parliament of the United Kingdom and of its Members and Committees immediately prior to the commencement of the Constitution.

The reference to the ‘House of Commons of Parliament of the United Kingdom’

in the

(draft)

Constitution

came

to be objected

by some

of the Members,

viz.

Shri H. V. Kamath,” Professor Shibban Lal Saksena’’ and Pundit Lakshmi Kant Maitra*° in the Constituent Assembly. Further, Professor Shibban Lal Saksena,*! Mr Naziruddin

Ahmad” and Dr P. S. Deshmukh*’ suggested for incorporating a schedule or an appendix listing out all the powers, privileges and immunities in the Constitution itself. While refusing to concede these demands, Dr B. R. Ambedkar replied thus:* ... If we were only concerned with these two things, namely, freedom of speech and immunity from arrest, these matters could have been very easily mentioned in the Article itself and we would have had no occasion to refer to the House of Commons. But the privileges, which we speak of in relation to Parliament, are much wider than the two privileges mentioned and which relate to individual members. The privileges of Parliament extend, for instance, to the rights of Parliament as against the public. Secondly, they also extend to rights as against the individual members. For instance, under the House of Commons’ powers and privileges it is open to Parliament to convict any citizen for contempt of Parliament and when such privilege is exercised the jurisdiction of the court is ousted. That is an important privilege. Then again, it 8 VIII Constituent Assembly Debates (Official Report) at p. 144. ” Id. at pp. 145-46. *° Id. at 151-53. Pt. Lakshmi Kant Maitra had gone to the extent of stating *... It is a matter of deep sentiments that those words should not have found a place here. | would much rather go without any privileges for the next few months or a year for which we shall be functioning. | would much rather go without any specified privileges than make provision therefore by reference to foreign legislation’. *' Supra note 29. *2 Id. at p. 147. ** Id. at pp. 147-48. *4 Id. at pp. 582-84.

ees

—

—

—~——

ee

ee eee

Powers, Privileges and Immunities of Parliament and State Legislatures

is open to Parliament to take action against any individual Member of Parliament for anything that has been done by him which brings Parliament into disgrace. These are

very grave matters—e.g., to commit to prison. The right to lock up a citizen for what

Parliament regards as contempt of itself is not an easy matter to define. Nor is it easy to say what are the acts and deeds of individual members, which bring Parliament into disrepute. eee

*eK

*xxK

... It is not easy, as I said to define what are the acts and deeds, which may

be deemed to bring Parliament into disgrace. That would require a considerable

amount of discussion and examination. That is one reason why we do not think of

enumerating these privileges and immunities. But there is not the slightest doubt in my mind and I am sure also in the mind of the Drafting Committee that Parliament must have certain privileges when that

Parliament would be so much exposed to calumny, to unjustified criticism that the parliamentary institution in this country might be brought down to utter contempt and may lose all the respect which parliamentary institutions should have from the citizens for whose benefit they operate.

I have referred to one difficulty why it has not been possible to categorise. Now I

should mention some other difficulties, which we have felt.

It seems to me, if the proposition was accepted that the act itself should enumerate the privileges of Parliament, we would have to follow three courses. One is to adopt them in the Constitution, namely, to set out in detail the privileges and immunities

of Parliament and its members. I have very carefully gone over May’s Parliamentary Practice, which is the source book of knowledge with regard to the immunities and privileges of Parliament. I have gone over the index to May’s Parliamentary Practice and | have noticed that practically 8 or 9 columns of the index are devoted to the privileges and immunities of Parliament. So that if you were to enact a complete code of the privileges and immunities of Parliament based upon what May has to say on

this subject, I have not the least doubt in my mind that we will have to add not less than twenty or twenty-five pages relating to immunities and privileges of Parliament.

I do not know whether the Members of this House would like to have such a large categorical statement of privileges and immunities of Parliament extending over twenty or twenty-five pages. That I think is one reason why we did not adopt that course. The other course is to say, as has been said in many places in the Constitution,

that Parliament may make provision with regard to a particular matter and until Parliament makes that provision the existing position would stand. That is the second course, which we could have adopted. We could have said that Parliament may define

the privileges and immunities of the members and of the body itself and until that

happens the privileges existing on the date on which the Constitution comes into

existence shall continue to operate. But unfortunately for us, as honorable Members

will know, the 1935 act conferred no privileges and no immunities on Parliament and

its members. All that it provided for was a single provision that there shall be freedom of speech and no member shall be prosecuted for anything said in the debate inside Parliament. Consequently that course was not open, because the existing Parliament

or Legislative Assembly possesses no privilege and no immunity. Therefore we could not resort to that course.

16

Analysis of Case Laws The third course open to us was the one, which we have followed, namely, that the privileges of Parliament shall be privileges of the House of Commons. It seems to me that except for the sentimental objection to the reference to the House of Commons | cannot see that there is any substance in the argument that has been advanced against

the course adopted by the Drafting Committee. | therefore suggest that the Article

has adopted the only possible way of doing it and there is not other alternative way open to us. That being so, I suggest that this Article be adopted in the way in which we have drafted it.

Thus,

the provision

came

to be adopted

Constitution (Forty-fourth Amendment) ‘House of Commons

in the same

form.

However,

the

Act, 1978 deleted the reference to the

of Parliament of United

Kingdom’

both in Article

105(3)

as well as in Article 194(3) of the Constitution. As per the amended provision, the powers, privileges and immunities of each House of Parliament as well as the State Legislatures, and its Members and Committees shall be those of that House

and of its Members and Committees immediately before the coming into force of Section 15 and Section 26, as the case may be, of the Constitution (Forty-fourth

Amendment) Act, 1978.

However, the change of language in the provisions has not ensued change in the legal position. The legal position remained intact substantially. The powers, privileges

and immunities enjoyed by each House of Parliament as well as the State Legislatures,

and its Members and Committees, immediately before the coming into force of the

Constitution (Forty-fourth Amendment) Act, 1978 were, in fact, those of House of

Commons of Parliament of the United Kingdom, and of its Members and Committees, at the time of the commencement of the Constitution of India. The resultant current constitutional position is that until Parliament and the State Legislatures, as the case may be, define, by law, their respective powers, privileges and immunities, each House of Parliament as well as the State Legislatures and their Members and Committees, in effect, continue to enjoy those powers, privileges and immunities of the House of Commons and of its Members and Committees. Till date, neither Parliament nor any State Legislature in India has defined or codified the powers, privileges and immunities. Thus, it is incumbent to trace such power, privilege and immunity recognised as vesting in the House of Commons of Parliament of the United Kingdom as on the date of the commencement of the Constitution of India, i.e. on 26 January 1950 in order to ascertain whether a particular power,

privilege or immunity is available to Parliament or the State Legislatures in India. It is axiomatic that the edifice of the powers, privileges and immunities of British Parliament was not built at once, but has historically evolved. The powers, privileges and immunities evolved over a period of time have not been clearly defined in any document. One needs to refer to the British parliamentary practices for ascertaining the same. Thus,

the question

whether,

in view

of Articles

105(3)

and

194(3)

of the

Constitution of India, Parliament and the State Legislatures and their Members and Committees are entitled to a particular power, privilege or immunity largely depends

Powers, Privileges and Immunities of Parliament and State Legislatures

17

on the British parliamentary practices. This position further leads to the following two questions:

(i) Who has the authority, under the scheme of our Constitution, to determine the existence and extent of the powers, privileges or immunities, which are available to Parliament and the State Legislatures by virtue of Articles 105(3) and 194(3) of the Constitution? (ii) Whether, by virtue of Articles 105(3) and 194(3) of the Constitution, Parliament and the State Legislatures are entitled to all the powers, privileges and immunities

enjoyed by the House of Commons at the commencement of the Constitution of India notwithstanding its written form, wherein many aspects of Parliament and

the State Legislatures have been expressly dealt with?

Determination of Existence and Extent of Powers, Privileges and Immunities

Firstly, it is necessary to point out that the question of existence and extent of the powers, privileges and immunities of the House is different from the question about the exercise of powers, privileges and immunities by the House. Discussion at this stage is confined to the former question and the latter question will be discussed at a later stage. To state it more explicitly, in the scheme of our Constitution, whether the question of determination of the existent and extent of the powers, privileges and immunities

is entirely and exclusively within the jurisdiction of the House concerned? Or is it a

question of interpretation of Articles 105(3) and 194(3) for which the Supreme Court is the final authority? The apex court, Jn Re: Powers, Privileges and Immunities of State Legislatures, (UP Assembly case) came to examine the above question for the first time. It was contended on behalf of the House, inter alia, that the question about the existence and extent of the powers, privileges and immunities of the House is entirely and exclusively within the jurisdiction of the House; and whatever the apex court may say will not preclude the House from deciding for itself the points referred to the court for its advisory opinion. On the other hand, it was contended that the question of construing Article 194(3) falls within the jurisdiction of the Supreme Court and the high courts and that the construction which this court would place upon the relevant words used in the latter part

of Article 194(3) would finally determine the scope, extent and character of the privileges

in question. It was further contended that Article 194(3) cannot be read in isolation, but

must be read in its context and in the light of other important constitutional provisions, such as, Articles 32, 211 and 226. While negating the arguments advanced on behalf of the House, it was held by the apex court, per majority, that the decision about the construction of Article 194(3) must ultimately rest exclusively with the judicature of this country. Sarkar J. in his separate judgment has expressed his agreement with the majority opinion on the question and observed thus:*

> AIR 1965 SC 745. © Jd. Paragraph 152.

18

Analysis of Case Laws

This passage should suffice to illustrate the nature of the dispute. It will not be

profitable at all, and indeed | think it will be “mischievous”, to enter upon a discussion

of that dispute for it will only serve to make turbid, by raking up impurities which

have settled down, a stream which has run clear now for years. Furthermore that dispute can never arise in this country for here it is undoubtedly for the courts to interpret the Constitution and, therefore, Article 194(3). \t follows that when a question arises in

this country under that Article as to whether the House of Commons possessed a particular privilege at the commencement of the Constitution that question must be settled, and settled only, by the courts of law. There is no scope of the dreaded ‘dualism’ appearing here, that is, courts entering into a controversy with a House of a Legislature as to what its privileges are. I think what I have said should suffice to explain the nature of the privileges for the purposes of the present reference and | will now proceed to discuss the privileges of the Assembly that are in question in this case, using that word in the sense of rights ancillary to the main function of the legislature.

The State of Karnataka v. Union of India,” decided by the Constitution Bench of the apex court has finally settled the issue beyond the pale of any doubt. Beg, C. J. referring to the arguments advanced to the contrary, observed thus:** Now, what learned counsel for the plaintiff seemed to suggest was that Ministers,

answerable to a legislature were governed by a separate law, which exempted them from

liabilities under the ordinary law. This was never the law in England. And, it is not so

here. Our Constitution leaves no scope for such arguments, based on a confusion concerning the “powers” and “privileges” of the House of Commons mentioned in Articles 105(3) and 194(3). Our Constitution vests only legislative power in Parliament

as well as in the State Legislatures. A House of Parliament or State Legislature cannot try

anyone or any case directly, as a court of justice can, but it can proceed quasi-judicially

in cases of contempts of its authority and take up motions concerning its “privileges”

and “immunities” because, in doing so, it only seeks removal of obstructions to the due

performance of its legislative functions. But, if any question of jurisdiction arises as to whether a matter falls here or not, it has to be decided by the ordinary courts in appropriate proceedings.

In Raja Ram v. The Hon'ble Speaker, Lok Sabha and Ors,” though there was virtually consensus amongst learned counsel that it lies within the powers and jurisdiction of the Supreme Court to examine and determine the extent of powers and privileges to find out whether actually the power of expulsion is available under Article 105(3) or

not, the court reconsidered the issue. The apex court, per majority, after considering the legal position in England and India at great detail, opined thus:*° ... there ought not be any doubt left that whenever Parliament, or for that matter any State Legislature, claims any powers or privilege in terms of the provisions contained 7 (1977) 4 SCC 608: AIR 1978 SC 68.

** Td. Paragraph 63. *» Supra note |. “Td. Paragraph 62.

Also

see,

Manjit

MH/0395/2006: 2006(4) MHLJ 834.

Singh,

v. Maharashtra

Assembly

and

Ors.

MANU/

ae

—_

—

—— see

ce

ee

ee

Powers, Privileges and Immunities of Parliament and State Legislatures

wr

19

in Article 105(3) or Article 194(3), as the case may be, it is the court which has the

authority and the jurisdiction to examine, on grievance being brought before it, to find out if the particular power or privilege that has been claimed or asserted by the legislature is one that was contemplated by the said constitutional provisions or, to put it simply,

if it was such a power or privilege as can be said to have been vested in the House of Commons of Parliament of the United Kingdom as on the date of commencement of the Constitution of India so as to become available to the Indian Legislatures.

Thus, the question of determination of existence and extent of powers, privileges and

immunities do not fall within the exclusive jurisdiction of the House concerned. It is,

indeed, a question of interpretation of Articles 105(3) and 194(3) of the Constitution

for which the Supreme Court is the final authority.

Availability of all the Powers, Privileges and Immunities of House of Commons, its Members and Committees The argument of availability of all the powers and privileges of the House of Commons to the legislatures in India by virtue of the latter part of common Clause (3) of both Articles 105 and 194 of the Constitution has been rejected by the apex court in the UP Assembly case. It was observed thus:*' ... Mr Seervai’s argument is that the latter part of Article 194(3) expressly provides that all the powers, which vested in the House of Commons at the relevant time, vest in the House. This broad claim, however, cannot be accepted in its entirety, because there are some powers, which cannot obviously be claimed by the House.

Take the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker “to have at all times the right to petition, counsel, or remonstrate with their Sovereign through their chosen representative and have a favourable construction placed on his words was justly regarded by the Commons as fundamental privilege”. It is hardly necessary to point out that the House cannot

claim this privilege. Similarly, the privilege to pass acts of attainder and 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. 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.

This position was reiterated by the apex court in Raja Ram v. The Hon'ble Speaker, Lok Sabha and Ors,” where it was categorically stated that ‘certain privileges of the House of Commons are not available to any legislative body in India, whether at the Union level or in the State, even under Clause (3) of Article 105 or 194 of the

*! Supra note 35, paragraph 44. “2 Supra note 1.

20

Analysis of Case Laws

Constitution’..* It was further observed that the legislative organs in India, both Parliament and the State Legislatures, are completely subservient to and controlled by the written provisions of the Constitution of India in regard to the composition and the regulation of the membership thereof and cannot claim the privileges of providing for or regulating their own Constitution. On detailed consideration of constitutional provisions contained in Articles 79, 81, 82, 83, 84, 85, 99, 101, 102, 103, 168, 169, 170, 171, 172, 173, 174, 191, 324, 326, 327, 328, 330, 331, 333, 334, and 329, the apex court observed thus: It must, therefore, be held as beyond the pale of all doubts that neither Parliament nor the State Legislature in India can assert power to provide for or regulate their

own Constitution in the manner claimed by the House of Commons in the United Kingdom. Having regard to the elaborate provisions made elsewhere in the Constitution, this power cannot be claimed even, or least of all, through the channel of Articles 105(3) or 194(3).

Thus, in India, in the face of the provisions of the written Constitution, neither Parliament nor any State Legislature can claim, by virtue of latter part of common

Clause (3) of Articles 105 or 194, all the powers, privileges and immunities recognised

as vesting in the House of Commons of Parliament of the United Kingdom as on the

relevant date. This constitutional position leads to the following conclusions:

¢ In order to ascertain whether a particular power, privilege or immunity is available to Parliament or State Legislatures in India, it is incumbent to trace such power,

privilege or immunity recognised as vesting in the House of Commons

of

Parliament of the United Kingdom as on the date of the commencement of the

Constitution of India.

* However, mere ascertainment of a particular power, privilege or immunity as vesting in the House of Commons of Parliament of the United Kingdom as on

the relevant date would not lead to the conclusion that the same is available to the

legislatures in India by virtue of latter part of common Clause (3) of Articles 105

and 194 of the Constitution of India.

+ After ascertainment of a particular power, privilege or immunity as vesting in the House of Commons as on the relevant date, the question would arise as to

whether it could be part of the provisions of its written question in order to finally immunity is available to the

the inheritance for Indian legislature in the face of Constitution. It is incumbent to determine the said ascertain whether a particular power, privilege or legislatures in India or not.

We shall now examine the judicial discourses relating to availability of particular powers, privileges and immunities to the legislatures in India by virtue of common Clause (3) of Articles 105 and 194 of the Constitution.

“* Td. Paragraph 171. “ Td. Paragraph 189.

Powers, Privileges and Immunities of Parliament and State Legislatures

2)

Power of Expulsion Though the fact that the British House of Commons has had power of expulsion immediately prior to the commencement of the Constitution of India seems to have never been disputed, the question whether the power of expulsion is available to Parliament and State Legislatures by virtue of common

Clause (3) of Articles 105

and 194 of the Constitution has been the subject matter of controversy in several cases before the high courts and Supreme Court. This question has been directly and substantially in issue in Yeshwant Rao Meghwale v. Madhya Pradesh Legislative Assembly and Ors,© Hardwari Lalv. The Election Commission of India and Ors,*° K. Anbazhagan v. The Secretary, the Tamil Nadu Legislative Assembly, Madras and Ors,” and Raja Ram v. The Hon'ble Speaker, Lok Sabha and Ors.** Several issues relating to power of expulsion, viz. whether the power of expulsion is derived from the power to regulate the constitution or composition of the House or is it derived from the power to punish for the breach of its privileges or for contempt? Whether reading of power of expulsion within common Clause (3) of Articles 105 and 194 would infringe any other provisions of the Constitution, etc. have been considered by the courts in the above-mentioned cases. Is the Power of Expulsion Available to the Legislatures in India by Virtue of Articles 105(3) and 194(3)? The issue whether the legislature possessed the power to expel its Members first came to be considered before the High Court of Madhya Pradesh in Yeshwant Rao Meghwale.” It was mainly contended by the petitioner that the privilege and power of expelling a member enjoyed by the House of Commons is not available to the Assembly as that power was exercised by the House of Commons as an adjunct of the privilege and power to regulate its own Constitution and the Legislative Assembly has no such power in our constitutional scheme. While negating the contentions, the Madhya Pradesh High Court held that the Legislative Assembly's power to expel its Member is an inherent power for ‘its protection, self security and self preservation and for orderly conduct of its business’. The high court observed thus:°° ... The House of Commons exercises the power of expelling a member not because it has the power to regulate its own Constitution but because it finds it necessary for its proper functioning, protection and self-preservation to expel its member who has offered obstruction to the deliberations of the House during its sitting by his

“> “© *? 48 4? 5°

AIR 1967 MP 95. ILR (1977) P&H 269. AIR 1988 Mad 275. Supra note 1. Supra note 45, Id. Paragraph 19.

22

Analysis of Case Laws disorderly conduct or who has conducted himself in a manner rendering him unfit to serve as a member of Parliament.

In Hardwari Lal,’ the Full Bench of the Punjab and Haryana High Court had, while examining a similar question relating to the expulsion of a sitting Member of the Haryana Legislative Assembly, came to a contrary conclusion. It was held, per majority, that the Legislative Assembly did not have the power to expel its Members. According to majority opinion all the powers, immunities and privileges of the House

of Commons are not an integral part of our written Constitution. The uncanalised

power of the House of Commons stems from its ancient and peculiar privilege of determining its own composition, which in turn arises because of the unwritten nature of the Constitution in England. No such power can descend to the State Legislatures in India in view of the admitted position that peculiar privilege of providing for and regulating its Constitution, which undoubtedly vests in the British House of Commons, is by very nature of things unavailable to our legislature. However, the

minority held that the Legislative Assembly has the power to expel and punish for

contempt. It reasoned thus:”

Indeed the source from which the House of Parliament derives a power to punish for its contempt may not be in dispute at all, but it must be remembered that “House

of Parliament” and “House of Commons” are not synonymous. As already stated the House of Parliament consists of the House of Commons, the House of Lords

and the King Emperor ... if we were to go to the source from which the Commons derive any particular power or privilege and then to decide whether that particular source is or is not available to the Indian legislatures in respect of that privilege, it would be adopting a course wholly foreign to the language of Art 194(3). Such an enquiry would be relevant only if we were to read into Article 194(3) after the words “at the commencement of this Constitution”, the words “other than those which are

exercised by the Commons as a descendant of the High Court of Parliament”. There is no justification at all for reading into Article 194(3) what the Constituent Assembly

did not choose to put therein. Adopting such a course would, in my opinion, not be interpreting Clause (3) of Article 194(3), but re-writing ic.

The case of K. Anbazhagan* presented a similar question concerning the powers of the Tamil Nadu Legislative Assembly. The High Court of Madras has taken a view

akin to that in Yeshwant Rao Meghwale and the minority view in Hardwari Lal. It was held by the Madras High Court that the power of expulsion is available as a method of disciplining Members. The court upheld the power of expulsion independently of the contempt jurisdiction. The question relating to availability of power of expulsion to the legislatures in

India came to be considered, for the first time, by the Hon'ble Supreme Court in

*! Supra note 46.

*2 Id. Paragraph 115. °3 Supra note 47.

Powers, Privileges and Immunities of Parliament and State Legislatures

23

Raja Ram v. The Hon'ble Speaker, Lok Sabha and Ors.** The apex court considered, inter alia, the question whether the powers and privileges of the Legislatures in India, particularly with reference to Clause (3) of Article 105, include the power of expulsion of their Members. While answering the question affirmatively, the court held that the power of expulsion can be claimed by the Indian legislatures as one of the privileges inherited from the British House of Commons through Article 105(3) and 194(3). On examination of the British parliamentary practices at great length, the apex court

opined that the expulsion power is not solely derived from power of British House of Commons of regulating its Constitution or composition. It was also held by the Supreme Court that the right to enforce privileges either by imposition of fine or confinement to prison or by expulsion is not a part of any other privileges but is by itself a separate and independent power or privilege. Power of Expulsion vis-a-vis Other Constitutional Provisions Another important question, which the courts have considered while dealing with the issue of expulsion, was whether reading of such a power in Articles 105(3) and 194(3)

would violate other express provisions of the Constitution, viz. provisions relating to vacation of seats and disqualification of Members, provisions relating to salaries, fixed terms of the Members, fundamental rights of Members, and right of a constituency to be represented, etc. Vacation and Disqualification In Yeshwant Rao Meghwale,” it was contented by the petitioners that the expulsion of a member is inconsistent with provisions relating to vacation of a seat. It was submitted that the vacation of the seat of a Member, once elected, can only be in the circumstances mentioned in Articles 190 and 191 and that these articles do not provide for the vacation of the seat of a Member by his expulsion from the House. While rejecting the contention, the court held that Articles 190 and 191 are not exhaustive provisions dealing with all cases of vacation of seats. They have no bearing in the construction of Article 194(3) and do not touch upon the power of the State

Legislature to expel a Member rendering the seat vacant. Similar view has been taken in K. Anbazhagan.© The apex court, in Raja Ram Pal, while considering the issue whether the power of expulsion under Article105(3) is inconsistent with the provisions relating to vacancy and disqualification, has finally settled the issue. It was held, per majority, that Articles 101 and 102 dealing with vacancy and disqualifications are not exhaustive as to the ways in which termination of membership of a House can be effected.

4 Supra note 1.

> Supra note 45.

© Supra note 47.

24

Analysis of Case Laws

Provisions Relating to Salary, etc. and Right to a Fixed Term In K. Anbazhagan,”’ the High Court of Madras has considered the issue whether reading

of power of expulsion within Clause (3) of Article 194 would negate the provisions relating to duration of Legislative Assembly? Answering the question negatively, the court categorically stated that merely because Article 172 provided for a period of five years to be the duration of the Legislative Assembly, it cannot be said that each member must necessarily continue to be a member for five years irrespective of other

provisions of the Constitution. The Supreme Court in Raja Ram Pals case” afirmed this position. Further, the apex court also clarified that even provision relating to salary of the Member would not negate the power of expulsion. It observed thus:”” . it is quite absurd to claim that because the Constitution makes a provision for

salaries, the power of the House to expel is negated since the result would be that the Member would no longer be paid. Salaries are obviously dependent upon membership, and the continuation of membership is an independent matter altogether. The termination of membership can occur for a variety of reasons and this is at no point

controlled by the fact that salaries are required to be paid to a Member.

Thus, it was clearly opined that there is no inconsistency between the House’s power of expulsion and the said provisions.

Right of the Constituency to be Represented and the Right to Vote

In Raja Ram v. The Hon'ble Speaker, Lok Sabha and Ors, it was contended before the apex court that in the democratic set-up adopted by India, every citizen has a right to vote and to be duly represented. It was argued that expelling a Member who has been elected by the people would violate the democratic principles and the constituency

would go unrepresented in Parliament. Negating the arguments, the court held that the power of expulsion does not violate the right of the constituency or any other

democratic principles. It was observed thus:*"

While it is true that the right to vote and be represented is integral to our democratic process, it must be remembered chat it is not an absolute right. There are certain

limitations to the right to vote and be represented. For example, a citizen cannot

claim the right to vote and be represented by a person who is disqualified by law

or the right to be represented by a candidate he votes for, even if he fails to win the

election. Similarly, expulsion is another such provision. Expulsion is related to the conduct of the Member that lowers the dignity of the House, which may not have

been necessarily known at the time of election. It is not a capricious exercise of power

by the House, but an action to protect its dignity before the people of the country.

” Id. *8 Supra note |. °° Id. Paragraph 158. Supra note |.

“' Td. 162.

Powers, Privileges and Immunities of Parliament and State Legislatures

25

This is also an integral aspect of our democratic set-up. In our view, the power of expulsion is not contrary to a democratic process. It is rather part of the guarantee of a democratic process. Further, expulsion is not a decision by a single person. It is a

decision taken by the representatives of the rest of the country. Finally, the power of expulsion does not bar a Member from standing for re-election or the constituency from electing that Member once 2gain.

Fundamental Rights of Members It was contended before the Hon’ble Supreme Court in Raja Ram Pal that the power of expulsion violates Article 19(1)(g) which guarantees the right to practice any

profession or to carry on any occupation, trade or business. It was submitted that this

right can only be curtailed by a law passed in the interest of the general public and that producing the same result by a resolution of the House is impliedly barred. It was also contended that Article 21 which includes the right to livelihood was violated since it can only be restricted by procedure established by law. Though admittedly the court was not impressed by the argument, it has opined that even if it were to be assumed that these rights apply, it does not prevent reading the power of expulsion in Article 105(3). The court observed thus:

First, it is to be remembered that 105(3) is itself a constitutional provision and

it is necessary that we must construe the provisions in such a way that a conflict

with other provisions is avoided. We are of the view that where there is a specific constitutional provision as may have the effect of curtailing these fundamental rights if found applicable, there is no need for a law to be passed in terms of Article 19(6).

For example, Article 102 relating to disqualifications provides that members who

are of unsound mind or who are undischarged insolvents as declared by competent

courts are disqualified. These grounds are not mentioned in the Representation of People Act, 1951. Though this provision would have the effect of curtailing the rights under Article 19(1)(g), we doubt that it can ever be contended that a specific law

made in public interest is required. Similarly, if Article 105(3) provides for the power of expulsion (though not so expressly mentioned), it cannot be said that a specific

law in public interest is required. Simply because Parliament is given the power to

make law on this subject is no reason to say that a law has to be mandatorily passed, when the Constitution itself provides that all the powers of the House of Commons

vest until such a law is made. Thus, we find that Article 19(1)(g) cannot prevent the

reading of power of expulsion under Article 105(3). Finally, as far as Article 21 is concerned, it was submitted that the “procedure established by law” includes the rules relating to the Privileges Committee, etc., which were not followed and thus the right was violated. In our view, this does not

prevent the reading of the power to expel in Article 105(3). It is not possible to say that because a “procedure established by law” is required, it will prevent the power of expulsion altogether and that every act of expulsion will be contrary to the procedure established by law. Whether such a claim is maintainable upon specific facts of each

62 [d. Paragraph 166&167.

26

Analysis of Case Laws case is something that will have to be considered when the question of judicial review

is taken up. At this stage, however, a blanket ban on the power of expulsion based on Article 21 cannot be read in the Constitutional provisions. This is an issue that may have a bearing on the legality of the order. But, it cannot negate the power of expulsion. Conclusion

After the decision of the Constitutional Bench of the apex court in Raja Ram Pal, the legal position has become clear that Parliament and the State Legislatures in India do possess the power of expulsion under Articles 105(3) and 194(3) of the Constitution.

The said power is not negated by any other express provisions in the Constitution.

Power of Suspension The power to suspend Members for breach of the privileges of the legislatures has been inherited by the legislatures in India from the Houses of Commons by virtue of common

Clauses (3) of Articles 105 and 194 of the Constitution of India. The said

power is analogous to the power of expulsion as discussed above and judicial decisions

dealing with the power of the legislature to expel a Member should be read with this part. In Raj Narain Singh v. Atmaram Govind and Anr,® a decision of the Allahabad

High Court rendered in the early days of our Constitution, the court had to deal with

the issue of suspension of a Member. Though many aspects discussed in this case have

been defined and redefined subsequently, this was one of the first cases to deal with

the suspension ofa Member of the Assembly. The Member had asked for permission to move an adjournment motion which was denied by the Speaker. This led to some unpleasant scenes in the House after which the Speaker asked the Member to leave the House. On his refusal to do so, he had to be forcefully ejected. Thereafter, the Speaker

referred the matter to the Privileges Committee. The Committee found him guilty

and the Assembly passed a resolution to suspend him. The Member filed a writ under Article 226 before the High Court of Allahabad. One of the grounds for challenging the resolution was that the punishment imposed would amount to ‘double jeopardy’ since he had already been punished once (as he was ejected forcefully) and the act of suspension would be violative of Article 20(2). The high court was of the opinion that it was within the Speaker’s powers to eject the

person in order to maintain the order of the House and thereafter he also had the power to refer the matter to the Privileges Committee if it appeared to him that some

privilege of the House was breached. The power to suspend a Member was part of

the privilege of the House created under the auspices of Article 194(3) and the said

provision cannot be made subject to Article 20(2) of the Constitution.

* AIR 1954 All 319.

ee

=

—_—e—— Oo ee ee

Powers, Privileges and Immunities of Parliament and State Legislatures

27

In the case of Jai Singh Rathi and Ors v. State of Haryana,“ the Punjab and Haryana High Court held that suspension did not create a vacancy in the House. It merely created absence from the service of the House caused due to contempt of the House. The petitioners had contended that their right to vote in the House was taken away by the said suspension. The court said that the act of suspension did not take away the Members’ right to vote, but he was merely placed in a position as if he was not present in the House. The Members cannot claim that their freedom of speech granted by Article 194(1) was abridged by the act of suspension. The power to suspend is a privilege under Article 194(3) and the said privilege is not subject to any other constitutional provisions. Article 194(1), on the other hand, has been made subject to other constitutional provisions. Therefore, Article 194(1) would be subject to the exercise of power under Article 194(3) of the Constitution. Conclusion

Thus, the legislatures in India have the power to suspend their Members of privileges. However, the suspension of a Member does not create a House; it only results in the absence of the Member from the services The right to suspend cannot be negated from the provisions relating speech and right to vote in the House.

for the breach vacancy in the of the House. to freedom of

Breach of Privileges and Acts of Contempt: Power to Reprimand, Admonish, Censure and Imprison

Parliamentary privileges being largely an exclusive domain for the legislatures, it is but natural that the legislative organs would also be endowed with the power to punish for their breach. These acts of breach are generally called “breach of privilege’ or ‘acts of contempt (of the legislature). Constitutional Provisions The Constitution, as seen in the earlier parts of this chapter, does not enumerate all the

privileges enjoyed by the legislatures. This freedom is left to the legislatures themselves under Articles 105(3) and 194(3). The power to punish for an act of contempt or breach of privilege is also construed as a privilege under the latter part of the aforesaid two provisions. Definition

The power legislatures. the power legislatures

to punish for contempt is enjoyed both by the courts as well as the While the contempt of a court is given statutory and judicial definitions, of the legislatures to punish for contempt is a very fluid power. The have not given any shape to this power and the courts have abstained from

& AIR 1970 P&H 379.

28

Analysis of Case Laws

defining the same. The latter have restricted themselves to a subjective analysis of this power, attempting only to see whether the said power was possessed by the House of Commons

in England

before the coming

Amendment Act to the Constitution.

into force of Section 26 of the 44th

Power of Courts for Judicial Review of Contempt Actions

The legislatures have been, at the inception of the Constitution, of the opinion that the power to punish for contempt was an absolute privilege and the courts cannot judicially

review such actions. But, over time, as the law regarding privileges progressed, there

is a widespread agreement that the courts can review such actions to see the existence and extent of such a privilege. Though the power to punish for contempt is a privilege of the legislature, it is given a special position in English Common Law to the extent that if the contempt warrant is a general and unspeaking one, then, the courts would not go beyond it. Only if the warrant was speaking in nature can the courts review the same. The issue that came up for the opinion of the court in UP Assembly case’ was whether this

position could be adopted in India as well. The majority opinion said that the English

House of Commons was given this power as a matter of propriety extended to it by the courts at a time when the House of Commons was acting as a superior court. The same cannot be said about the legislatures in India who have, at no point of time, exercised judicial powers. For the same reason, it cannot be said that merely because a contempt warrant is general and unspeaking it cannot be subject to judicial review. Are Contempt Actions Subject to Fundamental Rights? This issue first cropped up in the Gunupati Kesavram Reddy case. In Gunupati the

petitioner contended that there was a violation of his fundamental right to be produced before a magistrate within 24 hours of detention as laid down

under Article 22(2) of

the Constitution. The court held, on admission by the Attorney General, that there was indeed a violation of the said right and ordered the petitioner to be released. This decision has not been considered to be an exposition of law on this issue since it was

based on the admission of the Attorney General and not on legal analysis. Later, in M. S. M. Sharma I (Searchlight 1)’ case this issue cropped up again.

Here, the UP Assembly punished the petitioner for publishing certain parts of its

proceedings without permission. One of the questions which arose in this case was

whether such actions were protected by Articles 19(1)(a) and 21 of the Constitution. The Supreme Court was of the opinion that the two provisions, namely, Article 19(1) (a) and Article 194(3) need to be constructed harmoniously. When construed thus,

Article 19(1)(a), being a general provision, had to yield to the specific provision, i.e. “ Supra note 35.

“° AIR 1954 SC 636. “” Supra note 12.

Powers, Privileges and Immunities of Parliament and State Legislatures

29

Article 194(3). As far as subjecting the contempt powers to Article 21 was concerned, Das, C. J. speaking for the majority, held that mere procedural irregularities did not mean that it is a non-compliance of procedure established by law when it came to the exercise of such powers by the legislatures. Though the court found that there was no violation of Article 21 on facts, what is pertinent to note here is that the very fact that there was a legal analysis shows that the intention was to make the power under Article 194(3) subject to Article 21.

Subsequently, this position came to be reconsidered in the UP Assembly Case® (In Re Article 143). The said case was an advisory opinion given by the Supreme Court ona reference made by the President of India. It was opined by a majority of the bench that the M. S. M. Sharma I case was silent on the general subjection of the Article 194(3) to Part III of the Constitution. It only expounded that Article 19(1)(a) will not be

applicable to areas where Article 194(3) was operative and that on the other hand, the latter provision should be subject to Article 21. The minority view by Sarkar, J. did not agree to this position. In his opinion the decision in M. S. M. Sharma was not right since when two provisions are harmoniously constructed one could not gain

prominence over the other. He also did not understand the logic in holding that the

same provision that is Article 194(3) could not be subject to Article 19(1)(a), and, at the same time, could be subject to Article 21, especially when the legal considerations

for both the provisions were very similar.

Can Judges and Advocates be Punished for Contempt of Legislatures?

In the UP Assembly case the petitioner was ordered to be detained for committing

contempt of the UP Legislative Assembly. He challenged the same action under Article

226 of the Constitution before a Division Bench of the Allahabad High Court. The

bench issued a notice to the Assembly. The Assembly took exception to this action and

issued contempt warrants against the petitioner, his advocate and the two Judges who constituted the Bench. The Supreme Court opined that this could not be done as the Judges are protected from any such actions by Article 211 of the Constitution which prohibits discussions in a State Legislature regarding the conduct of a Supreme Court or high court Judge acting within the contours of his duty. The same logic would be extended to advocates acting as officers of the court though they are not per se protected by the said provision. Power to take Punitive Action

The power to take action for an act of contempt is but a corollary to the existence of the privileges without which privileges are toothless. The courts in India in several cases have held that the power to punish for contempt includes power to punish the contemnor with imprisonment, subject him to censure, reprimand and admonition,

68 Supra note 35.

30

Analysis of Case Laws

etc.” In several cases the legislatures have resorted to punish the contemnors with imprisonment.” But the contemnors could not be sentenced to serve the imprisonment beyond the duration of the session.”! The legislatures have in cases used censure, reprimand and admonition as modes of punishment. Most cases discussed

in this chapter with regard to parliamentary privileges and contempt powers have passing references to the mode of punishment but the same have not been challenged

anywhere. The powers to suspend and expel Members of legislative bodies have already

been discussed. Conclusion

It can be summarised that contempt actions are not immune from judicial review just like any other privilege. Contempt actions cannot be made subject to Article 19(1)(a)

of the Constitution. The jury is still out as to whether contempt actions are subject

to all the fundamental rights or merely to Article 21. A contempt action, initiated

through

a general

unspeaking

warrant,

does

not

get any

special

protection

under

Indian law, contrary to the English position. Judges and advocates cannot be hauled

up for contempt measures if they are acting within their duty spheres as they are afforded protection by Articles 121 and 211 of the Constitution. Restrictions on Deliberations in Parliament

Deliberations inside the four walls of the legislature have, for long, been considered

one of the skeletal pillars of parliamentary democracy. Therefore, the Constitution has

been very particular in giving this privilege a dignified position. Clauses (1) and (2) of

Article 105 comprehensively deal with the privileges enjoyed by Parliament, collectively as well as individually by its Members. The analogous provisions which deal with similar privileges of the State Legislatures are Clauses (1) and (2) of Article 194.

As per Article 105(1), the freedom of speech inside Parliament is largely unrestricted except restrictions imposed by the Constitution as well as rules and standing orders regulating the procedure of Parliament. The only apparent restrictions

imposed by the Constitution on the rights of the legislatures to deliberate on an issue is seen in the provisions of Articles 121 and 211 of the Constitution. The former

provision prohibits discussions in Parliament with respect to the conduct ofa Judge of the Supreme Court or any high court, acting in discharge of his duties except if it

is with regard to a motion for presenting an address to the President for the removal ofa Judge. Article 211 is similar and applies to State Legislatures who do not have the power to impeach Judges. Articles 118 and 208 respectively give Parliament and

” In Re: UP Legislative Assembly, AIR 1965 SC 745; and M. S. M. Sharma Iv. Sri Krishna Sinha and Ors, Supra note 12. ”° See for example, M. S. M. Sharma (1), Supra note 12; Manjit Singh v. Hon'ble Speaker, Maharashtra

State Legislative Assembly, 2006 (4) MHL] 834. ”! Susant Kumar Chand v. Orissa Legislative Assembly, AIR 1973 Orissa 111.

—

oar

_

—_——_—_—_—_—_—_—

Powers, Privileges and Immunities of Parliament and State Legislatures

3]

the State Legislatures the power to make rules to regulate procedure and conduct of business. In the M. S. M. Sharma’ decision, the Supreme Court considered this restriction to mean only constitutional provisions regulating procedure in Parliament like

Articles 118, 121, 208 and 221 of the Constitution. The second clause of Article 105

states that a Member of Parliament will not be liable in any court proceedings in respect of anything said or any vote given by him in Parliament or a Committee thereof. If such speeches are published or reproduced outside the House with the permission of the House, then again, such person who reproduces it is also protected by the above privilege. This protection is given by the latter part of Article 105(2).

Article 19(1)(a) Compared to Freedom of Speech of Members Inside the Legislative Chambers Article 19(1)(a) though it gives a fundamental right to every citizen to indulge in free speech and expression, the said right can be curtailed using the restrictive provision of Article 19(2). At the same time, the freedom of speech inside the legislative chambers

is absolute. Except minor procedural safeguards incorporated into Article 105(1),

which are essential to preserve the peace and order of the House, the freedom of

speech inside the House is largely unrestricted. Broad Ambit

The provisions of Clauses (1) and (2) of Article 105 have been given the widest possible

import by the Supreme Court. In the case of 7ej Kiran Jain and Ors v. N. Sanjiva Reddy and Anr,” the appellants had initially brought an action for damages against the respondents who were Members of Parliament. The respondents made certain jocular remarks using extremely un-parliamentary language regarding a particular religious

head held in high esteem, while Calling Attention Motion about some activities of the said religious head was being debated. In appeal, the Supreme Court refused to allow the contention on the basis of the immunity given to the Members by Article 105(2). The appellants contended that the alleged derogatory language was used outside the discussion on the motion and had nothing to do with the business of the House and therefore was not eligible for the immunity. The court did not accept this view. It said that Article 105 should be given the widest possible interpretation in order to ensure that the Members could express themselves without any fear. Thus, the phrase ‘anything said in Parliament’ could only mean ‘everything’ said in Parliament. This

implies that Members have the absolute freedom to speak their minds inside the four

walls of Parliament without any fear.

72 M.S. M. Sharma, Supra note 12. 73 ATR 1970 SC 1573.

32

Analysis of Case Laws

Similarly, in 2 V. Narasimha Rao v. State (CBI),”* the court was again faced with a

question of interpretation of Article 105(2). In this case, some Members belonging to the ruling party were alleged to have bribed some Members of the Jharkhand Mukti Morcha (JMM) for voting in favour of the former during voting on a no-confidence motion. Charges were framed under the Prevention of Corruption Act against the bribe givers as well as the bribe takers. The contention of the State was that the act of giving and taking bribe was not something that was part of voting or expression

of view by the Members. The attempt was to give a narrow interpretation that only the vote given or the speech made in the House is protected. Negating this view, the apex court said that the protection is available not only to the acts of voting or making speeches, but to anything ‘related’ to the said acts also. Even if the act of taking bribe

was a heinous act, it was done in relation to a vote cast by them and, therefore, the Members who took the bribe and voted were protected by Article 105(2). At the same

time, the Members who gave the bribe and the Member who took the bribe and did not vote would not be protected and they could be proceeded against. Protection for What is Said Outside the House

The absolute immunity given by Article 105(2) is only available to Members within the four walls of the legislative chambers. Anything said outside the four walls, if it amounts to the violation of somebody's legal rights, will only attract a qualified

privilege. In Dr fatish Chandra Ghosh,” the appellant was a Member of the Legislative Assembly. He sought permission to put certain questions on the floor of the House,

but was not permitted to do so by the Speaker and subsequently, he published those

questions in a journal in his constituency. Criminal proceedings were instituted against

him under Section 500 of IPC. One of the chief defences taken by the appellant was

that he enjoyed an absolute privilege and that he was protected under Article 194(2) of

the Constitution. The apex court said that the Member could avail of only a qualified

privilege. In case ofa qualified privilege, the person who wishes to take refuge under the privilege has to prove that (i) that the publication is a true and faithful report of the proceedings; (ii) that the published matter is of importance to the public; and (iii) that it was not actuated by any malice or oblique motive. Similarly, even ifa newspaper publishes the proceedings inside the Assembly which amounts to defamation or libel, the publisher of the newspaper is also entitled only to a qualified privilege as above. Deliberations Violative of Other Constitutional Provisions As seen earlier, the privilege of Articles 105(2) and 194(2) is too sacrosanct that even

provisions of the Constitution which would otherwise have pierced any legal armour

“* AIR 1998 SC 2120. ” Dr Jatish Chandra Ghosh, Supra note 10. “6 O. Ramalingam v. The Director, Daily Thanthi, AIR 1975 Mad 309.

Powers, Privileges and Immunities of Parliament and State Legislatures

33

find it hard to dent the said provisions. In the UP Assembly case (In Re Article 1431),””

the Supreme Court was faced with a situation where the court was to see whether the Judges of the Allahabad High Court had acted in contempt of the UP Assembly. Opining on this aspect, the court deemed it necessary to draw out the complete picture. It was said that if the Judges committed an act alleged to be contempt of the assembly,

then the Judges would be protected from any discussion or action by the legislatures

regarding the issue by Article 211. The restriction under Article 211 is lifted only

once the motion for removal of a Judge under Article 124(4) is moved in the House

after his misconduct is proved in accordance with law enacted by Parliament under

Article 124(5).”* But, if at all such a discussion takes place, then, the courts would

still be helpless keeping in mind the immunity given by Article 194(2). This does not preclude the Speaker from taking any action against the Members, acting within his powers.” Conclusion

The Members of a legislature have absolute freedom of speech and expression inside the House and no constitutional or legal provisions can put a fetter on the said right with the sole exception of the provisions which prohibit discussions regarding the

conduct of Judges. To facilitate the free exercise of this right, Clauses (1) and (2) of Article 105 as well as Clauses (1) and (2) of Article 194 are given the widest possible

interpretation. The same privilege does not extend outside the House and once such

speeches are made or reproduced outside, without the permission of the House, it only attracts a qualified privilege. Likewise, the immunity is only available to Members and does not protect non-members. Power of Chairman/Speaker/Committees of Privileges of the Houses of Parliament and State Legislatures to Summon Alleged Contemner It is established from the discussion above that the House of Parliament and State Legislatures have the power to punish Members as well as non-members for breach of privileges or for contempt by virtue of Article 105(3) or, as the case may be,

Article 194(3) of the Constitution of India. Power to summon the alleged contemnor

or to issue show cause notice is considered to be the corollary of the said power to punish for contempt.

7” Supra note 35. Also see A. K. Subbaiah v. The Chairman, Karnataka Legislative Council, AIR 1979 Kant 24. 8 Sub-committee of Judicial Accountability v. Union of India and Ors AIR 1992 SC 320; Surendra

Mohanty v. Nabakrishna Choudhury and Ors, AIR 1958 Orissa 168; Saroj Giri v. Vayalar Ravi and

Ors, 1999 CriL] 498. "> See UP Assembly case, supra note 35.

34

Analysis of Case Laws

In Harendranath Barua v. Dev Kant Barua,* the court was asked to consider, inter

alia, the question as to whether the Speaker has the authority to summon a person to

appear before the Privileges Committee for contempt of the House in the absence of a resolution by the House to that effect? On consideration of relevant rules of the Assam Legislative Assembly, the High Court of Gauhati answered the question affirmatively

and observed that the rules purport to vest the Speaker with a large discretion in these matters of procedure which is not unusual to the dignity and responsibility of the high office which he holds. If once it is conceded, as it has to be conceded, that

the Legislative Assembly has power to take steps against a person for commitment of contempt or alleged contempt or any such breach of privileges of the House, then, the procedure to be adopted is a matter of concern to the House or the Speaker thereof and in regard to the validity of which this court would not be entitled to embark on

an enquiry. The court, accordingly, ruled that the action taken by the Speaker is not unwarranted under the rules.

In the UP Assembly case,*' the apex court has considered, inter alia, one of the interesting question regarding the power to issue notice calling for explanation.

The question, thus, considered by the House was—whether it was competent for the Legislative Assembly to direct the production of the Judges who entertained

petition and advocate who represented the contemnor in a writ petition challenging

the order of conviction passed by the Speaker for breach of privileges or to call for

their explanation? While answering the question negatively, the court observed that

a Judge ofa high court who entertains or deals with a petition challenging any order

or decision of a legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt, or for infringement of its privileges and immunities, or who passes any order on such petition, does not commit contempt

of the said legislature; and the said legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. Accordingly, the court ruled that it was not competent for the Legislative Assembly of Uttar Pradesh to direct the production of the Judges and advocate before it in custody or to call for their explanation for its contempt. In C. Subramaniam v. Speaker, Madras Legislative Assembly and Ors, the High Court of Madras considered an issue relating to the power of the Speaker of a Legislative Assembly under Article 194(3) of the Constitution to call upon any person

to show cause why he should not be held to have committed a breach of privilege of the legislature by way of contempt? It was observed by the court that Article 194(3)

vests in the Speaker of the legislature, empowered by a resolution of the legislature, with the right to call upon a third party, like the writ petitioner, to show cause why he

should not be held to have committed a breach of the privilege of the legislature by

0 AIR 1958 Assam

160.

*! Supra note 35. 82 AIR 1969 Mad.

10.

Powers, Privileges and Immunities of Parliament and State Legislatures

35

way of contempt. A writ of prohibition need not be issued by this court to stifle the very exercise of that jurisdiction. Conclusion

The cases discussed above suggest that the question whether a Speaker can issue summons or show cause notice without the backing of the resolution to that effect passed by the House depends on the provisions of the relevant rules framed by the House in that regard. Even the apex court’s ruling in the UP Assembly case that it was not competent for the legislature to call for explanation from the Judges has not negated the existence of such a power. In that case the court was of the opinion that the act of Judges in entertaining a petition would not amount to breach of privilege of the House. Prevention of Corruption Act and Privileges of Members The Prevention of Corruption Act (PCA) applies to ‘public servants’. A pubic servant is defined under Section 2 of the act. One of the meanings imparted to the term ‘public servant by the provision [Section 2(c)(1) of the Act] is ‘any person in the service or pay

of the Government or remunerated by the Government by fees or commission for the performance of any public duty’. It is common nowadays that in every case before the courts involving corruption committed by Members of legislative bodies, the accused/petitioners have taken the contention that the Members are not public servants and therefore, they cannot be prosecuted under the PCA, 1988. The Delhi High Court has in ZL. K. Advani v. CBI *° made it apparently clear that this argument does not hold any water. The PCA, created to protect the democratic process, is to be given the widest and broadest possible interpretation. Thus, the Members of Parliament as well as State Legislatures fall within the definition of ‘public servant’ under the act. This view has been reasserted in many decisions including P V. Narasimha Rao v. State.* In Narasimha Rao’ case certain Members of Parliament were accused of taking bribes for casting votes against a no-confidence motion against the Narasimha Rao government and certain others were accused of giving bribes. The first argument raised by the appellants was that the bribe takers as well as the bribe givers were given immunity by Articles 105(1) and (2) from trial in a court of law. The court said that

the provision gives immunity to a Member in respect of anything said or any vote

given in Parliament or any of its Committees. This provision is to be given the widest possible meaning by reason of the phrase ‘in respect of’. Thus, the Members who give a vote after taking a bribe would be protected by Article 105(2) of the Constitution. The same cannot be said of bribe givers and those who take bribe and thereafter do not cast a vote. These Members would be liable to be prosecuted under the PCA. 83 66 (1997) DLT 618. 84 Supra note 74.

36

Analysis of Case Laws

Requirement of Prior Sanction under the PCA Under Section 19 of the PCA, in order for a court to take cognisance of an offence

under Sections 7, 10, 11, 12 and 15 of the PCA, the previous sanction ofa competent authority is required. For a public servant who is not employed by the Central Government or any State Government, the competent authority is one who has the authority to remove the public servant from office. In case of a Member of Parliament or State Legislature, there is no such authority capable of removing him from his seat. Ihe court, in Narasimha Raos case, pointed out this anomaly and it was held, per majority, that since there is no authority competent to grant sanction for the

prosecution of a Member

of Parliament under Section

19(1) of the Prevention of

Corruption Act, 1988, the court can take cognisance of the offences mentioned in Section

19(1) in the absence of sanction but before filing a charge-sheet in respect

of offences punishable under Sections 7, 10, 11, 12 and 15 of the 1988 act against

a Member of Parliament in a criminal court, the prosecuting agency shall obtain the

permission of the Chairman of the Rajya Sabha or, as the case may be, Speaker of the Lok Sabha. However, the minority was of the opinion that a Member of Parliament

cannot be prosecuted under the said sections till this anomaly in law is corrected. The

requirement of prior sanction is not there if the accused was not a Member at the time the court is asked to take cognisance. At the same time, if a sitting member of the legislature is proceeded against under

any of the sections of the PCA for offences committed when he was the Member of an earlier assembly, then, also prior sanction is not required.*” Conclusion

As per the PCA, Members of legislative bodies are ‘public servants’. Members of Parliament and the State Legislatures have immunity under Article 105(2) or, as the case may be, Article 194(2) for any offence under the PCA if it is committed in

respect of anything said or vote actually given in Parliament or the Assembly. This

immunity does not extend outside the House. Members can be proceeded against even for offences under Sections 7, 10, 11, 12 and 15 even in the absence of such prior sanction; however, a charge-sheet can be filed only with the permission of the Presiding

Officer of the House concerned. The sanction is only required for sitting Members

and for offences committed when they are Members of the current Assembly and not

of earlier assemblies.

Effect of Conviction on Membership of a Member The effect of conviction of sitting Members of Parliament and the State Legislatures is contained in Section 8 of the Representation of the People Act, 1951. This section lists

out the offences, conviction of which would lead to disqualification from contesting "5 See L. K. Advani, supra note 84.

Powers, Privileges and Immunities of Parliament and State Legislatures

37

election. Section 8(2) talks about the effect such a conviction would have on an existing member. As per this provision, a disqualification would not take effect against a sitting member except after three months from the date of such conviction or if any appeal or revision is filed within three months, only after the appeal or revision has been

disposed off. Section 7(b) of the act defines disqualification as disqualification from being elected as and also, ‘from being’, a member of Parliament or State Legislatures. The case of Navjot Singh Sidhu v. The State of Punjab®’ threw up an interesting question. Here Shri Sidhu, a sitting MP, was convicted under Section 304 of the IPC for three years of imprisonment and fine. After the said conviction Shri Sidhu resigned from his post in order to maintain probity and high moral values in public life. Thereafter, in the Special Leave Appeal filed before the Supreme Court, he filed an interim application praying for the suspension of his conviction. Though suspension of sentence is commonly done by appellate courts, the suspension of conviction, by which the conviction becomes temporarily inoperative till disposal of the appeal, is very rarely resorted to. The suspension of conviction was sought because Shri Sidhu wanted to contest elections and remove the disqualification attached to him by the conviction.

Counsels for the State as well as for the complainants contended that the MP,

once he had resigned from his membership could not be eligible for re-election till his conviction was set aside. They also said that a suspension of conviction in cases

like the instant one would lead to ‘criminalisation’ of politics. The court adopted a

baffling thread of arguments to arrive at a decision here. Firstly, the court said that the appellant should be allowed to be given the opportunity to be re-elected from the seat that was left vacant on his own resignation and denial of such opportunity would lead to grave injustice. Thereafter it added that it would not be swayed by moral arguments

and that it would only look at the law as it stood on date. But, thereafter, the court

backtracked on its initial stand. It was held that the application was on a very specific point—whether the conviction should be suspended or not. In the peculiar facts of the case, it was indeed suspended. But whether that would entitle him to be re-elected

could only be decided in an election petition. Therefore, the court ultimately refrained from deciding what effect such suspension of conviction would have on the re-election

of the accused to Parliament. Conclusion

The decision in the Navjot Singh Sidhu is a case on its own facts and at the best, an oddity. The suspension of conviction is a rarity in law. If the accused is a sitting Member he continues to remain so till the appeal is disposed of, irrespective of whether his conviction is suspended or not. The position when the Member resigns from the legislature is not yet clear.

8 AIR 2007 SC 1003.

38

Analysis of Case Laws

Privileges vis-a-vis Fundamental Rights of Citizens Privileges and immunities have been conferred upon Parliament and the State Legislatures to ensure that they discharge their functions without any hindrance and interference. And, these privileges are available to the House collectively as well as to

the Members individually.*’ The members of Parliament have been given somewhat wider personal liberty and freedom of speech than an ordinary citizen enjoys for

the reason that a House cannot function effectively without the unimpeded and uninterrupted use of their services. Legislative privileges are deemed to be essential in order to enable the House to fulfil its constitutional functions to conduct its business and maintenance of its authority.®®

‘There are two dimensions of parliamentary privileges. A person who is not a

Member of the House, or who is otherwise not entitled to these privileges, is barred from interfering with the working of the House. This is to do away with unnecessary bottlenecks that may hinder the proper functioning of the House. These privileges

also aim at restraining the Members of the House from abusing their position as the

Members of the House. The privileges and immunities of Parliament and the State Legislatures guaranteed

under the common Clauses (1) and (2) of Articles 105 and 194 have been made subject

to ‘other provisions of the Constitution’, whereas the privileges and immunities dealt with under common Clause (3) of Articles 105 and 194 have not been expressly

made subject to any other provisions of the Constitution. This constitutional position gave rise to several questions, which were subjected to judicial consideration in a

number of cases before the high courts and the Supreme Court. Broadly framed, these

questions are:

(i) Whether the expression ‘other provisions of the Constitution in common Clauses (1) of both the Articles 105 and 194 of the Constitution would include Part III as well? (ii) Whether ‘other powers and privileges’ conferred under Clause (3) of both the

Articles 105 and 194 of the Constitution are absolute by virtue of the fact that they have not been expressly made subject to any other provisions of the Constitution?

Clause (1) does not imply that there is an unrestricted license to speak anything within the walls of the House. The freedom conferred by this Clause is ‘subject to the other provisions of the Constitution’. As to the question whether ‘other provisions of the Constitution’ include Part III, the Supreme Court in M. S. M. Sharma,® held

that this restriction includes only constitutional provisions relating to regulation of

*”? However, all these privileges are not confined only to the Members of the House. Ministers and the Attorney General, though not Members of the House, are entitled to speak and take part in the proceedings of the House. See, Articles 88 and 105(4). 8M.

P. Jain, Indian Constitutional Law, vol. 1, p. 89 (2003).

M. S. M. Sharma, supra note 12.

Powers, Privileges and Immunities of Parliament and State Legislatures

39

procedure in Parliament like Articles 118, 121, 208 and 211 of the Constitution. It

was categorically stated that it does not include Part III of the Constitution.

In P V. Narasimha Rao v. State,” it was observed that the freedom of speech

guaranteed under Article 105(1) is absolute and independent of Article 19 of the Constitution. The freedom of speech conferred under this article cannot, therefore, be restricted under Article 19(2) of the Constitution.

Again in Raja Ram v. The Hon'ble Speaker, Lok Sabha and Ors°' it was reiterated

that Article 19(1)(a) is not a provision which controls the first part of Clause (1) of

Article 194. It is only such procedures that are included. Thus, there is consistency provisions of the Constitution’ As to the second question, of express reference subjecting

provisions of the Constitution which regulates the

in the opinion of the court that the expression ‘other does not include Part III. the issues relating to the implications of the absence powers, privileges and immunities guaranteed under

Articles 105(3) and 194(3) to the ‘other provisions of the Constitution’ has been the

subject matter of judicial scrutiny in several cases. This question surfaced for the first time in Gunupati Keshavram Reddy v. Nafisul Hasan and the State of UP* where it was contended that the fundamental right of the editor of Blitz under Article 22(2) was violated as result of his arrest, which took

place pursuant to the arrest warrant that was issued against the editor for violating the privileges of the House as he had published a news item that cast derogatory aspersions on the Speaker of the UP Legislature. He was not produced before the Magistrate within 24 hours as required under Article 22(2). The Supreme Court accepted the contention raised on behalf of the editor and ordered his release holding that his right under Article 22(2) had been violated as a result of his arrest. This decision had

indicated that Article 194 (or Article 105) was subject to the Articles of the Part III of the Constitution. In other words, fundamental rights controlled parliamentary privileges. However, no express declaration was made to that effect. In Raj Narain Singh v. Atmaram Govind and Anr,?’ while dealing with an issue of suspension, where a suspended Member contended that the said suspension would amount to double jeopardy since he had already been evicted from the House for disorderly conduct, the High Court of Allahabad had said that the provisions of

Article 194(3) were not governed by Article 20(2) of the Constitution of India. In M.

S. M. Sharma

(I) v. Sri Krishna Sinha,’ the apex court considered the

similar issue with reference to rights of the citizens guaranteed under Article 19(1) (a) of the Constitution. It was specifically contended before the court that though the

Clause (3) of Article 194 had not, in terms, been made ‘subject to other provisions of

° Supra note *” Supra note AIR 1954 % Supra note 4 Supra note

74. 1. SC 636. 63. 12.

40

Analysis of Case Laws

the Constitution it would not necessarily mean that it was not so subject, and that the several clauses of Article 194, or Article 105, should not be treated as distinct and separate provisions but should be read as a whole and that, so read, all the clauses should be taken as subject to the provisions of the Constitution which would include Article 19(1)(a). It was further contended that if in pursuance of Article 105(3), Parliament

were to make a law under Entry 74 of List I to the Seventh Schedule defining the

powers, privileges and immunities of the Houses of Parliament and if the powers, privileges and immunities so defined were repugnant to the fundamental rights of the

citizens, such law will, under Article 13, to the extent of such repugnancy, be void

and this being the intention of the Constitution makers and there being no apparent indication of a different intention in the latter part of the same clause, the powers and privileges of the House of Commons conferred by the latter part of Clause (3)

must also be taken as subject to the fundamental rights. The court, while rejecting the arguments, has, inter alia, held that the subject-matter of each of the four clauses of Article 194 (or Article 105) was different. While Clause (1) had been expressly made

subject to the provisions of the Constitution, the remaining clauses had not been stated

to be so subject, indicating that the Constitution makers did not intend Clauses (2)

to (4) to be subject to the provisions of the Constitution. Further, while agreeing,

however, with the proposition that a law made by Parliament in pursuance of the earlier part of Article 105(3) would not be a law made in exercise of constituent power

but would be one made in exercise of ordinary legislative powers under Article 246

read with the relevant entries of the Seventh Schedule, and, consequently, if such

a law abridges any of the fundamental rights, it would contravene the peremptory provisions of Article 13(2) and would be void to the extent of such contravention,

it was observed that this did not lead to the conclusion that if the powers, privileges or immunities conferred by the latter part of the said article are repugnant to the fundamental rights they must also be void to the extent of repugnancy. On the basis

of conclusion so reached, the apex court reconciled the conflict between Article 19(1) (a) and Article 194(3) as follows:”°

The Principle of harmonious construction must be adopted. and so construed, the provisions of Article 19(1)(a), which are general, must yield to Article 194(1) and the

latter part of its Clause (3), which are special.

Interestingly, as regards the arguments that proceedings before the Committee of Privileges of the Legislative Assembly threatened to deprive him of personal liberty guaranteed under Article 21, the court observed that the Legislative Assembly had framed Rules of Procedure under Article 208 and, therefore, if the petitioner was eventually deprived of his personal liberty as a result of the proceedings before the

Committee of Privileges, such deprivation would be in accordance with the procedure

established by a law and, therefore, a complaint of breach of fundamental rights under

Article 21 could not be made. °’ Id, Paragraph 28.

Powers, Privileges and Immunities of Parliament and State Legislatures

4\

In the UP Assembly case,” while referring to the effect of the expression ‘subject

to the provisions of the Constitution ...’ as used in Article 194(1), which has been

omitted in the remaining clause of Article 194, the apex court observed thus:”’

... all the four Clauses of Article 194 are not in terms made subject to the provisions contained in Part III. In fact, Clause (2) is couched

in such wide terms that in

exercising the rights conferred on them by Clause (1), if the legislators by their speeches contravene any of the fundamental rights guaranteed by Part III, they would not be liable for any action in any court. Nevertheless, if for other valid considerations,

it appears that the contents of Clause (3) may not exclude the applicability of certain relevant provisions of the Constitution, it would not be reasonable to suggest that those provisions must be ignored just because the said Clause does not open with the words “subject to other provisions of the Constitution”. In dealing with the effect of the provisions contained in Clause (3) of Article 194, wherever it appears that there is

a conflict between the said provisions and the provisions pertaining to fundamental

rights, an attempt will have to be made to resolve the said conflict by the adoption of the rule of harmonious construction.

The apex court, in the UP Assembly case, while agreeing with the law laid down in

M. S. M. Sharma I, that the law enacted by virtue of the first part of Article 194(3) is a law within the meaning of Article 13, therefore, subject to fundamental rights, has observed that the construction of the latter part of Article 194(3) is within the

jurisdiction of the court, and in constructing that part, courts have to bear in mind

the other relevant and material provisions of the Constitution. Further, the court has categorically stated that the majority decision in M. S. M. Sharma I had not laid down a general proposition that whenever there is a conflict between the provisions of the latter part of Article 194(3) and any of the provisions of the fundamental rights guaranteed by Part III, the latter must always yield to the former. The majority decision must be taken to have settled that Article 19(1)(a) would not apply, whereas

Article 21 would apply. Accordingly the court has opined that if Article 21 applies, Article 20 may conceivably apply.” This position was reiterated by the apex court in Raja Ram v. Hon'ble Speaker, Lok Sabha.” The apex court, relying on M. S. M Sharma I, M. S. M. Sharma II and the UP Assembly cases, has rejected the broad contention on behalf of the Union of India

% Supra note 35.

9” Id. Paragraph 36. °8 This view has been followed in several other cases, viz., C. Subramaniam v. Speaker of the Madras

Legislative Assembly, and Ors, AIR 1968 Mad. 10; State of Kerala v. R. Sudarsana Babu, LR 1983 (Kerala) 661; A. M. Paulraj v. The Speaker, TN Legislative Assembly, Madras and Ors, AIR 1986 Mad.

248 (FB); D. Murugesan v. The Hon'ble Speaker (Thiru Sedapatti R. Muthiah), Tamil Nadu Legislative

Assembly, AIR 1995 Mad. 260; Manjit Singh v. Hon'ble Speaker, Maharashtra State Legislative Assembly, MANU/MH/0395/2006

”° Supra note 1.

2006 (4) MHL]

834.

42

Analysis of Case Laws

that the exercise of parliamentary privileges cannot be decided against the touchstone

of fundamental rights or the constitutional provisions as incorrect. Conclusion

The law laid down

in the cases discussed above makes it clear that the ‘freedom of

speech’ guaranteed under Articles 105(1) and 194(1), is in no way controlled by

Article 19(2) of the Constitution. The absence of a provision making privileges guaranteed under common Clause (3) of Articles 105 and 194 ‘subject to other

provisions of the Constitution would not render the same to be absolute. Thus,

the broad proposition that the parliamentary privileges cannot be examined on the touchstone of fundamental rights cannot be accepted.

2 Powers, Privileges and Immunities of Members

The representatives of the people need to enjoy certain guarantees which would underline the importance of their office and give them the peace of mind to discharge their constitutional mandate. The immunity, which is of Anglo-Saxon origin, is conferred on those who are in power. In ancient Rome too, the tribunes of the people enjoyed

special protection in order that they should freely exercise their functions; anyone who infringed that prohibition was liable to punishment. The right to immunity is based on this basic idea. This common law backdrop is sufficient to establish the genesis of specific protection for parliamentarians. Almost all legal systems in the world recognise parliamentary immunity and offer dual protection of Members of Parliament. Immunity is of two kinds: (i) non-liability or non-accountability, and (ii) inviolability. The principle of non-accountability or non-liability refers to the freedom of speech and it extends to votes cast and opinions expressed in the performance of their duties. The principle of inviolability refers to the freedom from arrest and it prohibits detention or legal proceedings without the authorisation of the House of which they are Members. IMMUNITY AGAINST PREVENTIVE DETENTION

As far as immunity against preventive detention is concerned, India has followed the decision in Captain Ramsays case and the position in House of Commons. Indian courts in various decisions including Ansumali Majumdar and Ors v. State of West Bengal and Anr,' In Re. Venkateswarlu,’ Anandan Nambiar, In Re,’ etc. have held that a Member has no immunity against preventive detention. The reason to exempt preventive detention from the scope of parliamentary privilege is that privileges of Parliament are granted for the service of the country and not to endanger its security. ' AIR 1952 Cal. 632. ? AIR 1951 Mad. 269. > AIR 1952 Mad. 117.

44

Analysis of Case Laws

The judiciary has examined

the scope of immunity of parliamentarians and

considered the following questions in various cases.

Whether powers, privileges and immunities given to Members of Parliament include immunity against preventive detention? This issue was first addressed by the Madras High Court in Re: Pillalamarri Venkateswarlu.’ The court, while referring to the situation in the UK, held that as the English system does not provide for any immunity against preventive detention in India; also a Member of legislature has no immunity from arrest in the cases of preventive detention. The high court observed thus:° So long as the Legislature of the State has not provided any law and declared the

rights, immunities and privileges of its Member the English system prevails here and if under the English system there is no immunity from arrest in the case of a preventive detention order, a Member of the Legislature here too cannot have it.

In Ansumali Majumdar and Ors v. The State of West Bengal and Anr,® the main contention of the petitioner was that a Member of either House has important and onerous duties and he would be unable to represent their constituents or to perform the duties which they were elected to perform unless during their membership they had at all times free access to the House and freedom to perform the manifold duties

which devolved upon Members of a Legislative Assembly or the Council of States so the Member does have immunity against preventive detention. The court, by rejecting

the contention of the petitioner, made the following observations:

Parliament never intended to protect members from certain terms of imprisonment following convictions merely because they happened to be members of either House

of a Legislature. If all persons duly qualified to be elected and not disqualified from sitting must be allowed to sit, then not only would persons detained under orders made under the Preventive Detention Act be entitled to sit, but also certain convicted criminals and that is a position which is difficult to accept.’

Further while interpreting Article 105 and explaining its scope the court held that:* Members of Parliament are entitled to speak freely in the House or in any committee of the House and they cannot be proceeded against in respect of any utterance made

in the proceedings of the House. The Article however does not attempt to define in

detail any of the other privileges or immunities, but merely States that until they are defined by Indian law they shall be those of members of the House of Commons

in England. It follows therefore that unless members of the House of Commons in England are immune from detention under an executive order made under an act

“ > ° ’ *

Supra note Paragraph Supra note Paragraph Paragraph

2. 18. 1. 22. 27.

Powers, Privileges and Immunities of Members

45

similar to the Indian Preventive detention Act, no such immunity can be claimed for members of either House of the Legislature in this country.

In K. Anandan Nambiarv. Chief Secretary to Government of Madras,’ the Supreme Court of India has made similar observations. The court observed that the privileges, powers and immunities of the Members of the Indian legislature are the same as those of the Members of the House of Commons as they existed at the time of commencement

of the Indian Constitution. The position about the privileges of the Members of the House of Commons in regard to preventive detention is settled that the privilege of freedom from arrest is limited to civil causes, and has not been allowed to interfere

with the administration of criminal justice or emergency legislation. In Smt Indira Nehru Gandhi v. Shri Raj Narain and Anr.," the petitioner took refuge under Articles 85 and 105 against the detention. But the court while striking a balance between the two articles interpreted thus: The composition of Parliament is not dependent on inability of a member to attend

for whatsoever reason. The purpose of Article 85 is to give effect to the collective

right of the House, which represents the nation to be called as often as the situation demands, and in any case the interval between two sessions must not exceed six

months. If any conflict arises between Article 105(3) and Article 85, still the privileges of members will not prevail. The detention of members of Parliament is by a statutory authority in the exercise of statutory powers ... The members’ rights under Article 105

are not available while he is detained under Preventive Detention. For the purposes of Article 105(3) a conviction under Penal laws or detention under Emergency laws must be deemed to be valid till it is set aside. The privilege of freedom from arrest is limited to civil causes, and has not been allowed to interfere with the administration

of criminal justice or emergency legislation.

if a claim for freedom from arrest by a detention order cannot be sustained under the privileges of the Members of Parliament, can it be sustained on the ground that it is a constitutional right which cannot be contravened? This important issue came before the Supreme Court of India in K. Anandan Nambiar v. Chief Secretary to Government of Madras.''! It was argued for the petitioner by referring to Articles 79, 85, 86, etc. that the order of detention prevents a Member of Parliament from attending the session of Parliament, from participating in the debate and from giving his vote and hence it amounts to a violation of his constitutional rights. The court answered that there are no rights which can be properly described as constitutional rights of the Members of Parliament under these articles. It has nothing to do with the individual rights of the Members of Parliament. These articles cannot be ? AIR 1966 SC 657. © AIR 1975 SC 2299: 1975 (Supp) SCC 1: [1976] 2 SCR 347. '! Supra note 9.

46

Analysis of Case Laws

construed to confer any right as such on individual Members or impose any obligation on them. The articles are not worded as if a Member of Parliament is bound to attend

the session, or is under an obligation to be present in the House when the President

addresses it. The privileges of the Members of Parliament are not constitutional rights. ‘These rights accrue to the Members of Parliament after they are elected, but they are not constitutional rights in the strict sense, and quite clearly, they are not fundamental rights at all.

Conclusion

In India, the courts have not recognised any immunity for Members of Parliament arrested in case of preventive detention. The courts have taken the same position as taken by the House of Commons. However, the only right, which has been recognised, is to communicate with the Speaker while he is under detention. IMMUNITY FROM ARREST

Freedom from arrest is an individual privilege. The need for freedom from arrest of the

Members of Parliament lies in the fact that every legislature is entitled to have the first

claim upon the services of its Members and that any person or authority who prevents or obstructs a Member from attending to his parliamentary duty is guilty of breach

of privilege and the contempt of the House. The Members of Parliament and State Legislature in India have the immunity from arrest to the same extent, as it is available to the Members of the House of Commons, by virtue of Articles 105(3) and 194(3).

The privilege has been incorporated in the Civil Procedure Code. Section 135A of the Code exempts a Member from arrest on a civil proceeding during the continuance of a meeting of the House or any of its Committees of which he is a Member and during a period of 40 days before or after such mecting or sitting.'? The object of this privilege

'2 Section 135A of CPC: Exemption of members of legislative bodies from arrest and detention under civil process: (1) No person shall be liable to arrest or detention in prison under civil process—(a) if he is a member of—(i) either House of Parliament, or (ii) the Legislative Assembly or Legislative

Council ofa State, or (iii) a Legislative Assembly ofa Union Territory: during the continuance of any meeting of such House of Parliament or, as the case may be, of the Legislative Assembly or the Legislative Council—(b) if he is a member of any committee of—(i) either House of Parliament, or

(ii) the Legislative Assembly of a State or Union Territory, or (iii) the Legislative Council ofa State, during the continuance of any meeting of such committee—(c) if he is a member of—(i) either

House of Parliament, or (ii) a Legislative Assembly or Legislative Council of a State having both such Houses, during the continuance ofa joint sitting, meeting, conference or joint committee of the Houses of Parliament or Houses of the State Legislature, as the case may be, and during the forty days before and after such meeting, sitting or conference. (2) A person released from detention under Sub-section (1), shall, subject to the provisions of the said sub-section, be liable to re-arrest

and to the further detention to which he would have been liable if he had not been released under the provisions of Sub-section (1).

Powers, Privileges and Immunities of Members

47

is to secure the safe arrival and regular attendance of Members on the scene of their parliamentary duties. The privilege extends only to civil arrest and not to arrest on a criminal charge, or for contempt of court, or to preventive detention. Many issues regarding the scope, extent, etc. of the privileges of parliamentarians from arrest had come before the judiciary time and again. Ansumali Majumdar and Ors v. The State of West Bengal and Anr,'? Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr,'4 in Re: K. Anandan Nambiar," in Re: Pillalamarri Venkateswarlu, a detenu in the Central Jail v. The District Magistrate and Superintendent, Central Jail,'° Anandan

Nambiar v. Chief Secretary to Government of Madras,’ Raghu Raj Pratap Singh alias Raja Bhaiya v. State of UP and Ors'* and A. Kunjan Nadar v. The State’? are the main cases wherein the courts have interpreted the true import of this immunity. Scope and extent

In Re: Pillalamarri Venkateswarlu,” the High Court of Madras examined the scope and duration of the immunity from arrest and explained it with regard to the English position. The immunity extends certainly to freedom from arrest for civil process or for a debt due. The arrest of a Member of Parliament in civil proceedings during the period when he is exempted from such arrest is a breach of privilege and the Member concerned is entitled to release. However, the immunity never protects Members from the consequences of treason, felony, or breach of peace. Nor does the privilege protect a Member from being committed to prison for contempt of court. The scope of this freedom, undoubtedly, does not extend to criminal process or to indictable offences.

Even though, there is no allegation that the Member has committed any crime, still he can be arrested, if his detention is necessitated for the maintenance of public order in the State. In such occasions, as in the cases of the petitioner in Re: Pillalamarri Venkateswarlu, the release cannot be ordered the arrest being not for a civil debt or a civil process. In K. Anandan Nambiar v. Chief Secretary to Government of Madras,*' the court endorsed this position by stating that the privilege of freedom from arrest is limited to civil causes and has not been allowed to interfere with the administration of criminal justice or emergency legislation.

'> '4 15 '6 '7 18 '9 20 21

Supra note 1. Supra note 10. Supra note 3. Supra note 2. Supra note 9. 2003(3) AWC 2106. AIR 1955 Travancore Cochin 154. Supra note 2. Supra note 9.

48

Analysis of Case Laws

Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr.,” reiterated the scope of

this immunity by referring to the position in House of Commons in the following words:”? The scope of the parliamentary privilege of freedom from arrest has been defined

positively and negatively. The positive aspect of the privilege is expressed in the claim

of the Commons to freedom from arrest in all civil actions or suits Parliament and during the period when a member was journeying Parliament. The privilege has been defined negatively in the claim which specifically excepted treason, felony and breach of surety of

during the time of or returning from of the Commons the peace.

Even though, Members do not have any privilege or immunity from arrest on a

criminal charge or under any law for preventive detention, the House has a right to receive immediate information of the arrest, detention, conviction, imprisonment and

release of a Member. For example, Rules 222A and 222B of the Rules of Procedure and Conduct of Business in Rajya Sabha and Rule 229 and 230 of Rules of Procedure and Conduct of Business in Lok Sabha make provisions for this. The failure on the part ofa Judge or a Magistrate or other authority to inform the House of the arrest/ detention or imprisonment of a Member would constitute a breach of privilege of the House. The immunity extends for a period of 40 days prior to the meeting and 40 days

subsequent to the conclusion of the meeting. However, the privilege cannot be claimed when the legislature has been prorogued and has not yet been summoned for next session.” Similarly, there is no bar to arrest after the statutory period is over or

to arrest a person who may have been released because his previous arrest had been in

contravention of the period of immunity conferred by Section 135A(1) of Code of

Civil Procedure.”

Immunity from arrest in criminal cases Can a Member claim the immunity from arrest in criminal cases? As stated above,

the immunity is strictly limited to civil cases alone. The immunity of freedom from arrest is not intended to interfere with the laws relating to emergency legislation such as preventive detention or administration of criminal justice. According to the

Calcutta High Court, preventive detention partakes more of a criminal than ofa civil

character.*° Law of preventive detention only enables persons to be detained who are dangerous or are likely to be dangerous to the State. It is true that such orders are made

22 Supra note 10. ?> Paragraph 79.

24 Supra note 2. > Durga Das Basu, Commentary on the Constitution of India, 8th edn., LexisNexis Butterworths Wadhwa, Nagpur, 2008, p. 1112. 26 Supra note 1.

Powers, Privileges and Immunities of Members

49

when criminal charges possibly would not be established, but the basis of the orders are a suspicion of nefarious and criminal or treasonable activities. Likewise, the privilege of freedom from arrest ceases to operate where a Member of Parliament has been charged with a criminal or indictable offence, primarily on the ground that the House should not protect a Member from the process of criminal law. Privilege of Parliament is granted in regard of the service to the nation and is not to be used to undermine the security of the nation. The Madras High Court has endorsed this view in Venkateswarlu’’ and held that the privilege of freedom from arrest cannot extend or be contended to operate where a Member of Parliament is charged with an indictable offence.

Court’s power to issue writ of habeas corpus Has the court in a matter like arrest, which is regarding the rights, privileges and immunities of a Member of the House of Legislature, power to issue writ of habeas corpus? This question came for consideration in Re: Pillalamarri Venkateswarlu.® The court found that in England the High Court of Justice has vested in it, the right of interfering when the right, privilege or immunity of a Member of Parliament has been infringed.” The court hence held that under Article 226 of the Constitution, it has all the powers, if it is satisfied that the arrest and detention of a Member contravened the rights, privileges or immunities which he enjoyed as a Member of Parliament, to interfere and set the matter aright by issuing appropriate directions. Can the Member claim any immunity from arrest and pray for his release relying on the practice prevailed in Parliament at Westminster? In Re: Pillalamarri Venkateswarlu, the chief ground of the argument was that a Member of the Madras Legislative Assembly enjoys the privileges, rights and immunities which a Member of the House of Commons of the United Kingdom enjoys in accordance with the practice and procedure obtaining in Parliament at Westminster. The court answered that as on 26-1-1950 a Member of the House of Commons of the United Kingdom at Westminster had no immunity as a result of parliamentary privilege from being arrested and detained under a preventive detention order. Hence, a Member of a State Legislature in India cannot have that privilege. So long as the legislature of the State has not provided by law and declared the rights, immunities and privileges of its Members, the courts in India have to treat that the English system prevails here and if under the English system there is no immunity from arrest in the case of a preventive detention order, a Member of the legislature here too cannot have it.

27 Supra note 2.

28 Supra note 2. 2° Goudy v. Duncombe, (1847) 1 Ex. 430: 154: E. R. 183.

50

Analysis of Case Laws

Arrest v/s right to attend session Whether the right to attend the session is paramount and superior to the provisions regarding detention? Is the arrested Member entitled for a writ of mandamus requiring the State to arrange his participation in the House? A. Kunjan Nadar v. The State

presented to the court an occasion to examine this issue. It was argued that though

the detention is legal and under due process of law, the detention is subordinated to

the right to attend the proceedings and the Member has a paramount right to attend

the sessions. Negating the arguments the court held that if the arrest and detention of an MLA is legal and under due process of law, he cannot claim that his detention

should be subordinated to his right to attend the proceedings in the House. The court

observed that there is no statutory provision for any mandamus to direct the State to enable the arrested Member to attend the session.

Danger of losing seat In A. Kunjan Nadar v. The State, one of the contentions was that since the detention creates a situation of danger of losing a seat or losing daily allowances, the Member must be released forthwith. The court considered the question, ‘whether the danger of

losing seat or losing daily allowances of an MLA form any foundation for relief from arrest’ and answered that as long as the detention is legal, the dangers of losing a seat under Article 140 or losing the daily allowance cannot form the foundation of any

relief against detention.”'

Arrest v/s right to continue as a Member Whether persons returned as Members of a State Legislative Assembly or the Council of States can claim the privilege/immunity of freedom from arrest whilst their membership of the Assembly or the Council of States continues? This question was the sole issue

before the special bench of the Calcutta High Court in Ansumali Majumdar in which

the detention of two Members of West Bengal Legislative Assembly and Council of

States, who were detained under the provisions of Preventive Detention Act, was challenged. It was argued, on behalf of the petitioner that as preventive detention under the Preventive Detention Act neither disqualifies a person from being elected nor from continuing to be a Member if so elected, such detention, therefore, cannot

be enforced to prevent a person duly elected and not disqualified from performing the duties of a duly elected Member. But the court answered that it was never intended by the lawmakers to protect the Members from certain terms of imprisonment following convictions merely because

they happened to be Members of either House of a Legislature. If the petitioner’s

argument is sound, it follows that all persons duly qualified to be elected and not

disqualified from sitting must be allowed to sit, then not only would persons detained *° Supra note 19. "Id.

Powers, Privileges and Immunities of Members

5|

under orders made under the Preventive Detention Act be entitled to sit, but also certain convicted criminals! The court made it clear that the Representation of the People Act is not concerned with the privileges and immunities of Members of the legislature. Moreover, the makers of the Constitution drew a sharp distinction between the qualifications and disqualifications of Members and their privileges and immunities. The Representation of the People Act merely deals with the qualifications and disqualifications of Members. They do not purport to deal with the privileges and immunities of Members. The privileges or immunities of the Members, on the other hand, are governed by Article 105 of the Constitution. Hence no immunity from arrest can be claimed by virtue of the Representation of the People Act. Conclusion

The immunity of freedom from arrest is limited only to civil cases. Similarly, it does not interfere with administration of criminal justice as arrests in respect of criminal cases are not contemplated by this immunity. No immunity from arrest can be claimed even under the provisions of the Representation of the People Act. Hence, arrest of a Member of Parliament or a State Legislature for a criminal cause or under Emergency Legislation does not constitute a breach of the privilege of the House. However, if a Member has been arrested in breach of this privilege in civil matters, he is entitled to be released by a proceeding for habeas corpus. RIGHT

TO

PARTICIPATE

IN THE

PROCEEDINGS

Under the Constitution of India, Members of Houses have no immunity against preventive detention and arrest in criminal cases. This position is settled now by various decisions of courts also. And while deciding this issue, the courts have held in many cases that the Members have no right to participate in proceedings while they are under the preventive detention or under arrest. Even the Constitution does not provide any power or privilege to participate while they are under detention. This issue has been decided by court in various cases including Re: K. Anandan Nambiar,” Power, Privileges and Immunities of State Legislature, Re: Keshav Singh v. The Speaker,” Raja Ram v. The Hon'ble Speaker, Lok Sabha and Ors,** A. Kunjan Nadar v. The State,” etc.

Right to attend sessions during detention Whether a Member has a right to take part in proceedings of the House while under preventive detention? This issue came before the High Court of Madras in >? Supra note 3. > AIR 1965 SC 745.

*4 (2007) 3 SCC 184.

>> Supra note 30.

52

Analysis of Case Laws

Re: K. Anandan Nambiar.*° \n this case, a Member was arrested under the preventive detention law. The contention of the petitioner was that the very basis of the sovereignty of the people will be undermined and imperiled if a Member of a legislature is deprived of his right to sit in it and if the electorates are to be for years deprived of any representation in the House. The court observed:

(One of the) indispensable pillars on which Constitution is founded is loyalty by each and every citizen to the Constitution. The second pillar we may describe as

honesty, character and integrity in the component organs of the Constitution, viz., the Legislature and the Executive and Judiciary.*° Once a member of a Legislative Assembly is arrested and lawfully detained, though without actual trial under any Preventive Detention Act, there can be no doubt that under the law as it stands, he cannot be permitted to attend the sittings of the House. A declaration by us that he is entitled to do so, even under armed escort is entirely out of the question.*®

The question of right of participation again arose in Raghu Raj Pratap Singh alias Raja Bhaiya v. State of UP and Ors” One of the contentions of the petitioner was that in a parliamentary system of government, the right of a Member of Parliament or State Legislature to participate in the proceeding of the House and to express his views in the House and to vote where necessary is a most valuable constitutional right and the same cannot be denied to him unless he has incurred any disqualification from

continuing as such Member.” He also contended that even an ordinary citizen in detention enjoys some of his freedoms guaranteed under Article 19(1) and some of

his fundamental rights guaranteed under Articles 14 and 21 of the Constitution the opposite parties cannot say that the legislator cannot enjoy such rights and privileges as mentioned in Article 194 when he is under such punitive detention.*’ The court by rejecting the contentions held:”” So long as members of Legislature are detained under valid order, it is implied that they cannot enjoy parliamentary privileges and rights. The rights and privileges are available to members only when they are inside the House.** Freedom given to the citizen under Article 19(1) is separate to, and independent of, the rights and

privileges of the members of the House referred to under Article 105 or 194 of the Constitution. Whatever rights of speech have been guaranteed under Article 194(1) or under Article

105(1),

the same

is to be exercised by the member,

inside the

respective House. In fact that is the plain language of those Articles and it is for

this reason that protection has been given to the member from any criminal or civil °° Supra note 3. *” Paragraph 7. 38

Id.

” “° *' “ *

2003 (3) AWC 2016. Paragraph 9. Paragraph 10. Paragraph 36. Paragraph 32.

Powers, Privileges and Immunities of Members

53

liability for anything said in the House“... Right to vote, right to contest election of the Assembly or Parliament or right to take oath as Legislator or a Parliamentarian, are different rights. Right to vote and right to contest elections are the statutory rights and are governed by the statutes.

The court also referring to the Code of Civil Procedure observed that Section 135A of the Code of Civil Procedure gives freedom to a Member of the House from arrest or detention in the contingencies mentioned therein. No like provision is made in the Code of Criminal Procedure or in any other law on the basis of which it can be said that a Member of the House could not be arrested or detained on a criminal charge in those contingencies as mentioned in Section 135A of the Code of Civil Procedure.*° In Smt. Indira Nehru Gandhi v. Shri Raj Narain,*® too, the court observed that detention cannot be challenged by collateral attack on the ground of deprivation of their participation in parliamentary proceedings. The Members’ rights under Article 105 are not available while he is detained under preventive detention. For the purposes of Article 105(3), a conviction under penal laws or detention under

emergency laws must be deemed to be valid till it is set aside.

Whether the provisions regarding detention is subordinate to an MLA’s right to attend the session? Whether a writ of mandamus can be issued directing the State to enable a detenu to attend the sessions?

These two issues arose in A. Kunjan Nadar v. The State.” The main contentions of the petitioner were that though his detention is legal and under due process of law, the detention is subordinated to the right to attend the proceedings. Hence a mandamus directing the State Government to permit him to take part in the proceedings is tenable. He also argued that in India there are wide privileges to Members under

Articles 190(3)(a) and 191(1)(e) of the Constitution and Section 7(b) of Representation

of the People Act, 1951 in case of detention. The court, however, rejected all the

contentions of the petitioner finding no substance in them.

Whether right to participate in proceedings is a constitutional right? The court considered this Government of Madras.** It member of Parliament from the debate and from giving

question in K. Anandan Nambiar was contented that if the order of attending the session of Parliament, his vote that amounts to a violation

v. Chief Secretary to detention prevents a from participating in of his constitutional

rights and for this he strongly relied on the provisions of Sub Clauses (1) and (2) of

Article 105. But by negating the arguments, the court held thus: “ ‘> *° ‘7 “8

Paragraph Paragraph Supra note Supra note Supra note

26. 30. 10. 30. 9.

54

Analysis of Case Laws

The Members of Parliament have the privilege of freedom of speech, but that is only when they attend the session of the House and deliver their speech within the chamber itself ... The freedom of speech on which so much reliance is placed, is a part of the privileges falling under Article 105. If the order of detention validly prevents him from attending a session of Parliament, no occasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded ... A person who is convicted and sentenced, has necessarily to

forgo his right of participating in the business of the Legislature to which he belongs

because he is convicted and sentenced. Conclusion

The Members of Parliament or the State Legislatures have no right, including constitutional right, to participate in the proceedings of the House when they are under arrest or detention. It is also settled that no writ of mandamus can lie to allow the Member to participate when he is under detention. Denial of such right does not

conflict with citizens’ right to be represented.

RIGHT TO COMMUNICATE WITH THE SPEAKER/ HOUSE A Member of Parliament or a State Legislature has the right to communicate with his House and express his views. This freedom is an essential component in a democracy.

The members’ right to communicate with the Speaker/House was upheld by the judiciary in India. Whenever there has been a violation of the right in the past, the judiciary has intervened and held that a Member enjoys right of correspondence with

the House even during his custody.

Does a Member enjoy a right to correspond with the House/Speaker

during his detention/arrest?

In Re: K. Anandan Nambiar,® the Madras High Court considered the petitioner’s prayer for a declaration that he was entitled to correspond with the legislature of which

he continued to be a Member. The court resolved that as long as a detenu continues to be a Member ofa legislature, drawing the emoluments of his office, receiving summons to attend, he is entitled to the right of correspondence with the legislature and to make representations to the Speaker and the Chairman of the Committee of Privileges. There can be Security Prisoners’ Rules passed under the Preventive Detention Act regulating correspondence permissible to a detenue. However, as per the court, during

the period of his detention, a detenu, who continues to be a Member of the Legislative Assembly, has a right to correspond with the House.

” AIR 1952 Mad 1172 (1952) 1 MLJ

1.

Powers, Privileges and Immunities of Members

55

Has the executive authority any right to withhold correspondence from a

Member in custody?

Right to communicate with the House is a fundamental and constitutional right guaranteed to all Members of Parliament and the State Legislatures. Jn Re: K. Anandan Nambiar, the petition written by Shri Nambiar, who was a Member of the Madras Legislative Assembly during his detention to the Government Chief Secretary, and its copy to the Speaker of the Legislative Assembly were withheld under the orders of the Inspector General of Prisons. According to the court, the withholding of letters violated his natural right. The court further observed that, as long as the person detained continues to be a Member of the House, he is entitled to the right of correspondence

with and to make representations to the Chairman, Rajya Sabha or the Chairman of a

Committee. No executive authority has any right to withhold such correspondence.

Does withholding communications from a Member in custody constitute

breach of privilege?

As per the law, it constitutes a breach of privilege to withhold a communication from a Member under arrest or detention addressed to the Chairman or the Secretary-

General, Rajya Sabha or the Chairman of a parliamentary committee or Chairman of

any legislative body. As stated above, in the opinion of the court, such withholding is a clear violation of his natural right as well as his privilege. For, a Member’s right to communicate with his House flows not merely from principles of natural justice but it is also a privilege springs from Article 194(3) of the Constitution. It is a continuous right and the Members of both the State Legislatures and Parliament must be allowed for any number of communications without any hindrance. Conclusion

The Members of Parliament or the Legislative Assembly, during their period of detention or arrest, have a right to correspond without let or hindrance with the Speaker or the Chairman, as the case may be, in their capacity as Members of the House. Such communications cannot be held up on executive orders. In such cases, the Members are entitled for mandamus directing the government to deal with the communications in accordance with parliamentary law and practice prevailing in England by which the Indian legislature is bound. FREEDOM OF SPEECH AND PROTECTION FROM PROSECUTION FOR WHAT IS SAID IN THE HOUSE

Articles 105 and 194 expressly mention freedom of speech as a privilege attached to parliamentarians. Considering the importance of freedom to speak and vote in Parliament, they were expressly provided for and not left to be gathered from the House of Commons as in the case of other powers and privileges. In England, this

56

Analysis of Case Laws

privilege of the House of Commons is well established. It has been given statutory recognition by Bill of Rights in 1689 which says that the freedom of speech or debates in Parliament ought not to be impeached or questioned in any court or out of Parliament. Clauses (1) and (2) of Articles 105 and 194 provide that there shall

be freedom of speech in Parliament and no Member of Parliament shall be liable to

any proceedings in any court in respect of anything said or any vote given by him in Parliament or any Committee thereof.

The courts from time to time have interpreted this article in many important

cases like P V. Narasimha Rao v. State (CBI/SPE),”° Tej Kiran Jain and Ors v. N. Sanjiva

Reddy and Ors,’' K. Anandan Nambiar v. Chief Secretary to the Government of Madras,”

Raja Ram v. The Hon'ble Speaker, Lok Sabha and Ors,” etc.

Can a Member claim immunity for anything said or any vote given in Parliament or State Legislature? In P V. Narsimha Rao v. State (CBI/SPF),* the court interpreted the words ‘any

proceedings’ appearing in Article 105(2). The court held that the scope of protection of

immunity available to the Members of Parliament is quite wide and is not confined only against judicial proceedings but is available to them against all civil action and criminal proceedings for anything said or any vote given by them in the House of Parliament. The object of the protection is to enable the Members to speak their mind in Parliament freely and fearlessly. The court held that MPs who have taken bribe and voted in Parliament against no confidence motion brought against the government are entitled to the protection of Article 105(2) and are not answerable in a court of law for alleged conspiracy and agreement. But the MPs who had given bribe but not voted on the no-confidence motion are not entitled to the protection of Article 105(2) and an action can be initiated

against them under the relevant law. The benefit of Article 105 is confined to in respect of

anything said or any vote given within the House or any Committee thereto. The interpretation of the expression ‘in respect of’ was analysed by Ray J., in

his concurring judgment, and he held that there cannot be any rigid formula but had to be with reference to the context in which it had been used and the purpose

to be achieved under the provision in question. The purpose for which the freedom of speech and freedom to vote had been guaranteed did not permit any restriction or curtailment of such rights conferred under Clauses (2) and (3). Hence, the expression

‘in respect of’ must necessarily be interpreted broadly and not in a restricted manner. Accordingly, an action impugned in a court, which had a nexus with the vote cast or speech made in Parliament, would get the protection of Clause (2) of the Article.

However, it is interesting to note that the dissenting judgment rendered by Agarwal J.

°° >! »? > 4

AIR 1998 SC AIR 1970 SC AIR 1966 SC (2007) 3 SCC AIR 1998 SC

2120. 1573: (1970) 2 SCC 272: [1971] 1 SCR 612. 657. 184. 2120.

Powers, Privileges and Immunities of Members

57

held an opposite view and observed that the words ‘in respect of’ would have to be interpreted to mean ‘arising out of’. Accordingly, in Ajit Singh v. State (Delhi), Through CBI,” where the petitioner took a bribe for voting in the House and did not vote, the Court held that for such criminal proceedings a Member cannot claim any immunity under Article 105(2) of the Constitution. In Tej Kiran Jain and Ors. v. N. Sanjiva Reddy and Ors® the High Court of Delhi observed thus:

Plain reading of the Article 105(2) goes to show that as regards anything said by a member of Parliament in Parliament or any committee thereof the Constitution has guaranteed full protection and provided complete immunity against any proceedings in a court of law. It is significant that while Clause (1) of Article 105 starts with the words “subject to the provisions of the Constitution”, there is no such limitation so far as Clause (2) of

Article 105 is concerned ... The words “anything said” are of the widest amplitude and it is not permissible to read any limitation therein. The object of the provision obviously was

to secure absolute freedom in discussion in Parliament and to alloy any apprehension of a legal proceeding in a court of law in respect of anything said in Parliament by a member thereof ... Every remark made by a member of Parliament is fully protected.

In an appeal from the above order the apex court interpreted the word ‘anything’ in Article 105(2) of the Constitution.” On behalf of the appellant it was argued that the immunity granted by Article

105(2) is relevant to the business of Parliament

and not to something which was utterly irrelevant. But the court by rejecting the contention held: The Article confers immunity inter alia in respect of “anything said ... in Parliament”.

The word “anything” is of the widest import and is equivalent to everything. The only limitation arises from the words “in Parliament” which means during the sitting of Parliament and in the course of the business of Parliament. This immunity is not

only complete but is as it should be. It is of the essence of parliamentary system

of Government that people's representatives should be free to express themselves

without fear of legal consequences.

In 7. M. Jacob v. State of Kerala and Anr,® the court held that Article 105(2) protects a Member of Parliament against proceedings in court that relate to, or concern, or have a connection or nexus with anything said, or a vote given, in Parliament. If nothing is said in Parliament, a Member cannot take refuge under this provision. In K. Anandan Nambiar v. Chief Secretary to the Government of Madras,” the court

observed that this right under Article 105(1) and (2) is a part of the privileges of the °° 1998 (3) SCALE 672. 6 AIR 1971 Delhi 86: 7 (1971) DLT 1. °” Tej Kiran Jain and Ors v. N. Sanjiva Reddy and Ors, AIR 1970 SC 1573: (1970) 2 SCC 272:

[1971] 1 SCR 612. 8 1999 CrLJ 3609. °° Supra note 9.

58

Analysis of Case Laws

Members of the House and not a fundamental right of the Members. The basis of democratic form of government is that Members of legislature must be given absolute freedom of expression when matters are brought before the legislature but is available

only when they attend the session of the House and deliver their speech within the House.

Recently in Raja Ram v. The Hon'ble Speaker, Lok Sabha and Ors, the Supreme

Court has observed that the absolute immunity from court proceedings conferred

under Articles 105(2) and 194(2) does not extend to any or every act of the legislative body or Member thereof but obtains only in respect of anything said or any vote given by a Member in the legislative body or any Committees thereof. Can a Member claim privileges and immunities without taking oath in the prescribed form? In Haridasan Palayil v. The Speaker, Kerala Legislative Assembly," the petitioner had not taken oath in the prescribed manner. The issue before the court was when does immunity commence? It was observed that constitutional immunity begins only

after the constitutional requirement of taking oath in the prescribed form is shown to have been fulfilled. Only thereafter is the Member entitled to freedom of speech

and vote. Thus, the courts can intervene whenever and wherever there is a violation of the Constitution. The constitutional immunity commences only after compliance with Constitution requirements have been fulfilled. The court further observed that

the judiciary has a commitment to the Constitution. Whenever there is violation

of the Constitution, the courts cannot be silent spectators. They are under duty to intervene.

Whether the Members have freedom from prosecution if they discuss the conduct of the Judges in Parliament? This issue was settled by the court in Saroj Giri v. Vayalar Ravi and Ors The petitioner argued that Article 121 of the Constitution of India prohibits discussions against the conduct of Judges, yet from the reports of the newspapers it was clear that Members of both Houses of Parliament had criticised two of the Judges. According to the petitioner, the discussion should not have been made in Parliament in regard to the conduct of

the Judges which was/is permissible only at the time when a motion is moved for their removal under the provisions of the Judges Enquiry Act. But the court fully concurred

with the earlier findings of the Orissa High Court in Surendra Mohanty v. Nabakrishna Chaudhury,° wherein it was held:

°° Supra note 53. *' AIR 2003 Ker 328. 1999 CriL] 498. ** AIR 1958 Ori 168.

Powers, Privileges and Immunities of Members

59

The speech of the Chief Minister amounts to contempt of this Court. The high court has no jurisdiction to take action against a member of the Legislature for his speech in the Legislature, even if it amounts to contempt. The appropriate procedure would be

to leave the matter to the State Legislative Assembly to be referred to its Committees of Privileges for each examination, investigation and report as may be necessary in accordance with its own rules of procedure and the provisions of the Constitution. Thus, the courts, generally, abstain from interfering with the immunity or privilege

of the House in matters connected with freedom of speech and leave the matter for appropriate action as per the rules and procedure of the House. Whether Constitution (Fifty-second Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule is violative and destructive of the

freedom of speech of the Members?

In Kihota Hollohanv. Zachilhu and Ors,™ one of the contentions raised by the petitioners

was that Constitution (Fifty-second Amendment) Act, 1985, in so far as it seeks to

introduce the Tenth Schedule is destructive of the basic structure of the Constitution

as it is violative of the fundamental principles of parliamentary democracy, a basic

feature of the Indian constitutionalism and is destructive of the freedom of speech as the provisions of the Tenth Schedule seek to penalise and disqualify elected representatives for the exercise of these rights and freedoms which are essential to the sustenance of the system of parliamentary democracy. Rejecting the contention, the court held thus:

Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended. The provisions of paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the Constitution ... The provisions are salutary and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections. Conclusion

The courts in almost all cases have recognised absolute immunity for Members of Parliament in respect of ‘anything said or vote in the House’. But the immunity commences only when all requirements of the Constitution, like taking of oath, have been duly complied by the Members. CONSEQUENCES OF MISCONDUCT An exact definition of misconduct is not very easy. Misconduct is a legal term referring to a wrongful, improper, or unlawful conduct. It is an unacceptable and disagreeable “4 (1992) 1 SCC 309.

60

Analysis of Case Laws

act. However, it may not be a criminal offence all the time. Malfeasance in office, or official misconduct, is the commission of an unlawful act done in an official capacity

which affects the performance of official duties. Misconduct on the part of Members of Parliament or, as the case may be, State Legislatures may ensue consequences ranging

from admonition, censure or reprimand to that of suspension or expulsion from the House.

Power to punish for misconduct is one of the facets of the power to punish for breach of privileges or for contempt that the legislatures in India do enjoy as a part of the inheritance from the British House of Commons by virtue of common Clause (3)

of Articles 105 and 194 of the Constitution of India. Power to punish for breach of privileges Members Members the power or, as the

or for contempt of the House has two main facets: (i) power to punish nonfor breach of the privileges of the House; and (ii) power to punish its own for their misconduct. Houses of Parliament and legislature of a State have to proceed against errant Members whose conduct may subject Parliament case may be, legislature of a State to disgrace.

Punishment for misconduct

Though undoubtedly the legislatures have the power to punish for misconduct, the question whether a Member of legislature can be subjected to suspension or expulsion for his misconduct has been raised before the courts in several cases. In

Yeshwant Rao Meghwale v. Madhya

Pradesh Legislative Assembly and Ors,

where some Members threw chappals at the Deputy Speaker and as a result the Members were expelled for their misconduct from the House, the court held that the Legislative Assembly has the power to expel Members in case of misconduct. However,

in Hardwari Lal v. Election Commission of India and Ors, the majority had taken a contrary stand. According to them, the power to expel a Member is a concomitant power to regulate the composition of the House which the legislatures in India do not possess by virtue of express provisions in the Constitution.

In K. Anbazhagan and Ors v. The Secretary, The Tamil Nadu Legislative Assembly and Ors,’ the burning of the Constitution was considered highly derogatory to and against norms and conduct expected from the Members of a Legislative Assembly and, as a result, Members were expelled from the House. The court held that power of expulsion is part of the power of punishing members involved in such an act, and

it can also be used for misconduct of Members outside the House. It was also held that an act expressly made penal cannot be justified on the ground of fundamental right and that such an act cannot fall within ‘freedom of speech and expression’. It was also observed that the power to punish for misconduct is necessary and incidental for enabling the House to perform its high functions, as also for the safety of the State. The ruling of the apex court in Raja Ram v. The Hon'ble Speaker, Lok Sabha and ® AIR 1967 MP 95. ° ILR (1977) 2 P&H 269. “ AIR 1988 Mad 275.

Powers, Privileges and Immunities of Members

61

Ors® has finally settled the issue. The apex court categorically held that the House of Parliament has the power to expel its Members for their misconduct. Further, there are instances of Courts upholding order of suspension of Members for their misconduct, viz. Raj Narain Singh v. Atmaram Govind and Anr® and fai Singh Rathi and Ors v. State of Haryana.” The cases of expulsion and suspension have already been discussed elaborately in Chapter I under the respective headings. Prosecution of Members for their misconduct In P V. Narasimha Raov. State (CBI),” the apex court considered, inter alia, the question

as to whether Members of Parliament who accepted bribes for casting votes against the no-confidence motion can be prosecuted under the provisions of the Prevention of Corruption Act. It was held, per majority, that the Members who accepted bribes

and did actually cast votes in pursuance thereof are protected from prosecution by

virtue of Article 105(2), whereas those who accepted bribes and abstained from voting

can be proceeded against under the provisions of the Prevention of Corruption Act. However, as far as the question of sanction required under Section 6 of the Prevention of Corruption Act is concerned, it was observed thus: The grant of previous sanction under Section 6 being a condition precedent for the prosecution of a public servant covered by the Act, it must follow that the holder

of an office who may be a public servant according to the wide definition of the expression in the act but whose category for the grant of sanction for prosecution is not envisaged by Section 6 of the Act, is outside the purview of the Act, not intended to be covered by the act. This is the only manner in which a harmonious construction

of the provisions of the act can be made for the purpose of achieving the object of that enactment ... to prosecute a public servant the prior sanction of the authority

competent to remove him is a must.

Thus, the court, per majority, was of the opinion that in the absence of an authority to accord sanctions, prosecution cannot be held. However, it was categorically stated that the House can proceed against them for their misconduct. Conclusion

It is clear from the above discussion that the House of Legislature has the power to punish the Members for their misconduct. The said power includes the power to suspend or expel the Members for their misconduct. However, they enjoy immunity from prosecution by virtue of Article 105(2) of the Constitution to the extent provided therein.

68 (2007) 3 SCC 184. 6? 2003 (3) AWC 2106. ”° AIR 1970 P&H 379. AIRI998 SC 2120.

3 Sessions, Prorogation and Dissolution

Under vested power State.

the Constitution, the power of prorogation and dissolution has been specifically with the President and the Governor. Under Article 174, the Governor has the to either prorogue or dissolve the House of the Legislative Assembly of the It says:

* The Governor Legislature of months shall appointed for

shall from time to time summon the House or each House of the the State to meet at such time and place as he thinks fit, but six not intervene between its last sitting in one session and the date its first sitting in the next session.

* The Governor may from time to time: (a) prorogue the House or either House; (b)

dissolve the Legislative Assembly.

This power is akin to the power of the President to prorogue either House of Parliament and to dissolve the House of the People contained in Article 85 which

reads as follows:

¢ The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.

* The President may from time to time:

(a) prorogue the Houses or either House;

(b)

dissolve the House of the People.

Both Articles 85 and 174 were physically borrowed from the Government of India Act, 1935 for the purpose of providing the frequencies of sessions of existing Houses

of Parliament and the State Legislatures. There is great difference in British parliamentary practice and Indian practice

under the Indian Constitution as regards dissolution and prorogation. Under the

Indian Constitution, dissolution brings a legislative body to an end and terminates its

Sessions, Prorogation and Dissolution

63

life. Prorogation, on the other hand, only terminates a session and does not preclude any other session unless it is coincident with the end of a legislative term. In other words, prorogation, unlike dissolution, does not affect the life of the legislative body which may continue from the last session until brought to an end by dissolution. In England, prorogation puts an end to all pending business in Parliament which is not the case in India. The British convention with respect to summoning, proroguing and dissolution is not relevant in the Indian context. DISSOLUTION AND PROROGATION: ARTICLE 85

The Constitution under Article 83 fixes a normal tenure of the House of the People by providing that its term will commence from the date appointed for its first meeting and will end immediately after the expiry of five years from that date. The architects of the Constitution have given us a parliamentary form of government or Westminster type. In Britain, as in India, the House of Commons endures for five years. Once the legislature is duly constituted, it becomes capable of dissolution though it begins to function only after it has summoned to meet.

Article 85 empowers the President to dissolve the House of the People. It is apparent that the Constitution has ensured, unless the President resolves to dissolve the House, that the normal period of five years as provided for cannot be cut short in any eventuality. The President is required to approach the issue from all angles within the parameters of his constitutional role and form his opinion that having regard to the political scenario and the situation facing the country dissolving the House of the People is the only desirable alternative. Dissolution marks the end of the life of a House and is followed by the constitution of a new House. Once dissolved, the dissolution is irrevocable. There vests no authority in the President to revive by an

order of cancellation the dissolution. Prorogation

under

Article

85(2)

means

the

termination

of a session

of the

House by an order made by the President. The President, in exercising the power to prorogue the House, acts on the advice of the Prime Minister, who may consult the Cabinet. Prorogation of the House may take place any time, even while the House is sitting. Prorogation terminates a session and does not constitute an interruption in the continuity of the life of the Lok Sabha which is brought to an end only by

dissolution.' In Special Reference No. 1 of 2002 (Gujarat Assembly Election Matters),’ the court explained the distinction between prorogation and dissolution. The court, per majority, held that, dissolution brings an end to the life of the House, and the same cannot be revived by the President. Prorogation, unlike dissolution, does not affect the life of the legislative body which may continue from the last session until brought to an end by the dissolution. 'G. C. Malhotra (ed.), Practice and Procedure of Parliament, Sth edition (2001), New Delhi: Published by the Lok Sabha Secretariat [by] Metropolitan Book Co. ? In Re; Gujarat Assembly Election Matter (2002) 8 SCC 237; AIR 2003 SC 87.

64

Analysis of Case Laws

CONSTITUTING

A NEW

HOUSE

In Anand Mohan v. Union of India and Ors,’ the court affirmed that the President can

call upon all parliamentary constituencies to elect Members of the new House of the People before the life of existing House of the People came to an end. Further, the

spirit of democracy which pervades the Indian Constitution will gather strength if

a convention is developed that the elections to the House of the People are held for constituting a new House, before expiry of its duration so that the new House may commence its functions without any loss of time. DISSOLUTION AND ArTICLE 174

In /n Re; Gujarat Assembly Election Matter,‘ the court stated that the act of summoning, sitting, adjournment, proroguing or dissolving of the legislature is necessarily referable

to an Assembly in present, i.e. an existing, functional legislature and has nothing to do with a Legislative Assembly which is not in existence. A dissolved House is

incapable of being summoned or prorogued as nothing survives, after dissolution.

The expression ‘date appointed for its first sitting in the next session’ in Article 174

cannot refer to either an event after the dissolution of the House or an event ofa new Legislative Assembly meeting for the first time after getting freshly elected. Other issues considered by the court in the said reference matter were: Premature dissolution

In cases of premature dissolution, Article 174 on plain reading does not provide a period of limitation for holding a fresh election after the premature dissolution of the

Assembly, so it is necessary to interpret the said provision by applying accepted rules

of interpretations. Historically

speaking,

the Government

of India Act of 1915

and

1919

also

provided for dissolution of the Legislative Assembly sooner than its stipulated period

or extend the period of their functioning. There was also a requirement to appoint a date for the next session of the Chamber. Such powers of the Governor General and the Governor of the province were similar to the powers exercised by British

monarch historically under British conventions wherein the monarch fixed a date for the next session of the House of Commons after its dissolution. Subsequently, under the Government of India Act, 1935 there was a complete departure from the earlier

provisions. The responsibilities and powers to fix a date for the next session had been

done away with.

A plain reading of Article 174 shows that it stipulates six months shall not

intervene between the last sitting in one session and the date appointed for its first sitting in the next session. It does not provide for any period of limitation for * AIR 1985 All 14. * Supra note 2.

Sessions, Prorogation and Dissolution

65

holding a fresh election in the event a Legislative Assembly is prematurely dissolved. Though, after the commencement of the Constitution, the practice has been that

whenever either Parliament or the Legislative Assembly were prematurely dissolved, the election for constituting a fresh Assembly or Parliament, as the case may be, was

held within six months from the date of the last sitting of the dissolved Parliament or the Assembly. There is no doubt as to whether the interval of six months between the last sitting of one session and the first sitting of the next session of the Assembly under Article 174(1) provides a period of limitation for holding fresh elections to constitute the new Assembly by the Election Commission in the event of premature dissolution of the Assembly.° Frequency of sessions and periodicity of the election A perusal of Articles 172 and 174 would show that there is a distinction between the frequency of meetings of an existing Assembly and periodicity of elections in respect

of a dissolved Assembly, which are governed by the aforesaid provisions. As far as

frequency of meetings of an Assembly is concerned, the six months rule is mandatory, while as far as periodicity of the election is concerned, there is no six-month rule either expressly or impliedly in Article 174.

The British convention of fixing a date and holding elections to the House of Commons is not reflected in Article 174. Firstly, under the British parliamentary system, there is continuity of Parliament, whereas in India once Parliament is dissolved, all the business which is to be transacted comes to an end and the House cannot be revived. Secondly, it is the exclusive right of the monarch to dissolve Parliament, and monarch, by the same proclamation, also provides for the election and meeting of its successor, which is not the case under the Indian Constitution. In India, the power is specifically entrusted to the Election Commission of India under Article 324 which is the only authority to conduct and fix dates for fresh elections for constituting a new House of the People or Legislative Assembly, as the case may be. In the case of Udai Narain Sinha v. State of UP,° the court said it is open to the Governor to dissolve a Legislative Assembly whenever and at whatever time he is so advised. In Article 174(2), the significant words are that the Governor may from time

to time dissolve the Legislative Assembly. In reference to the facts of the said case, in the absence of the appointment of a date for the first meeting of the ninth Assembly

in accordance with Article 172(1), its life did not commence for the purposes of that article even though it may have been constituted by virtue of the notification under

Section 73 of the act. If no sitting of the ninth Assembly did take place, no occasion arose for the termination of the sitting by dissolution. The Governor, therefore, neither in fact nor in law dissolved the ninth Legislative Assembly.

> Supra note 2. ° AIRI 987 All 203.

66

Analysis of Case Laws

BONAFIDE ACTION OF THE GOVERNOR

In Rameshwar Prasad v. Union of India, the court stated that in recommending dissolution cannot be said to be bonafide prevent a political party to stake claim for formation of the be done with the sole object of preserving the Constitution

the act of the Governor when it is intended to government. It should and not promotion of

political interests of one or the other party. Observing that the Governor needs to discharge dual responsibility to the Union and the State, the Sarkaria Commission* sought to evaluate the role of the Governors in certain controversial circumstances including dissolution of Legislative Assemblies.

There have been recommendations for the insertion in the Constitution of specific provisions enabling the President to issue instruments of instructions to the Governor.

In response, the Sarkaria Commission observed that considering the multi-faceted role of the Governor, and the nature of his functions and duties, it would neither be feasible nor desirable to formulate a comprehensive set of guidelines for the exercise of

his discretionary powers. No two situations, which may require a Governor to use his discretion, are likely to be identical. Despite best efforts, if ultimately a viable ministry fails to emerge, a Governor is faced with rwo alternatives—he may either dissolve the Assembly or recommend President's Rule under Article 356 leaving it to the Union government to decide the

question of dissolution. The Commission recommended that the Governor should first consider dissolving the Assembly and arranging for a fresh election.

CHALLENGE

TO THE ORDER

OF

DISSOLUTION

Under Article 174, the Governor, as stated in R. Krishnaiah v. Union of India,’ exercises

his discretion on the basis of material placed before it, which is relevant and germane

to the action taken by him. It cannot be said that the material was totally irrelevant or extraneous unless it is well established before the court. The court will not lightly

presume abuse or misuse. The court would, as it should, make allowance of the fact that the Governor and his Council of Ministers are the best Judges of the situation. The court will not and is not expected to go into the correctness of the material or

inadequacy in arriving at the decision. The court will not interfere so long as there is material which is relevant to the action. Fence, when the courts undertake an enquiry into the existence of such material, the prohibition contained in Article 163(3)'° does

not negate their right to know about the factual existence of any such material.

” AIR 2006 SC 980. *“Role of Governor’, (1988). ” 2003 (6) ALD 897.

Report of the Sarkaria

Commission

on Centre-State Relations, Chapter

1V

'® Article 163(3): The question whether any, and if so what, advice was tendered by ministers to the Governor shall not be inquired into in any court.

Sessions, Prorogation and Dissolution

67

POWER OF PRESIDENT UNDER ArTICLE 356(1) When the President assumes governmental powers by a proclamation under Article 356(1), the dissolution after the proclamation would be as good as dissolution

by the Governor of a State whose powers are taken over. The power to give advice

would automatically be taken over by the Union Government for the purposes of dissolution of the State Assembly."!

CONCLUSION

The provisions relating to the dissolution and prorogation propose measures to tackle varied situations occurring in the life of the legislature. In this regard, the concerned authority is obligated to address the situations with fairness in order to maintain smoothness in the democratic process.

'! State of Rajasthan v. Union of India (1977) 3 SCC 592.

4 Members’ Right to Attend Session of the House while under Arrest/Detention

Parliament and the State Legislatures are entitled to have a first claim upon the services of their respective Members, and as a general rule, Members of the House must necessarily have the freedom and liberty to attend the sessions and take part in the deliberations of the House with no hindrances. Members, during their membership, must have free access to the House, the opportunity to represent their constituencies

and freedom to perform the manifold duties. However, this right is not without

exceptions. No Member can claim the right to attend the House as his constitutional right. A Member detained under the emergency legislation or on criminal charges cannot claim immunity on the ground that he has right to attend the session. The

arrested Member accrues no right of participation even when he has received summons

to this effect. Requests received from the Members so detained for attending the sittings of the House have generally been rejected by the House according to its rules. The

Chairman cannot compel or direct the Government to permit a Member to attend the sittings of the House if he has been apprehended and detained under the law relating

to preventive detention or under any other criminal law. The judiciary in India also has taken the same stand that the Members in custody do have no paramount right to take part in the proceedings of the House.' ' However, there are some rare instances in which members of the Rajya Sabha were permitted

to attend the Session under police escort: (i) Shri Raj Narain, a member of the Rajya Sabha, who

was arrested under Sections 107/117 of the CrPC, was permitted by the Supreme Court to attend the session under police escort to participate in the proceedings of the House. He accordingly attended the House on 4 and 5 September 1970 and took part in the debate on the Constitution (Twenty-fourth Amendment)

Bill, 1970 relating to the abolition of privy purses; (ii) Miss Saroj

Khaparde, a member of the Rajya Sabha, was allowed to attend the session under police escort by the Judicial Magistrate, Nagpur. She was transferred from Nagpur to Delhi for that purpose, as per the communication received in the matter. For details, see http://rajyasabha.nic.in/rajya/19/94/ i5/94150902.htm.

Members’ Right to Attend Session of the House while under Arrest/Detention

69

WHETHER THE RIGHT TO ATTEND SESSION IS AN ABSOLUTE RIGHT? The right of a Member to attend session is not an absolute right and, as such, the right

is subject to reasonable restrictions. The Constitution does not vest in the Members of Parliament or State Legislatures an absolute right to attend sessions during the term of Parliament unless they are disqualified under Article 102 or under Section 7(b) of the Representation of the People Act, 1951. For instance, a Member detained under the emergency legislations such as Preventive Detention Act cannot claim any right to attend the sessions during his detention. /n Re: K. Anandan Nambiar,’ the court observed that if a Member is arrested under Preventive Detention Act, and is lawfully detained even without actual trial, he cannot claim that his detention should be subordinated to his right to attend the session of Parliament. WHETHER THE MEMBERS’ RIGHT TO ATTEND SESSION IS A FUNDAMENTAL AND/OR CONSTITUTIONAL RIGHT?

This important question was examined by the Supreme Court in K. Anandan Nambiar v. Chief Secretary to Government of Madras.’ \t was argued on behalf of the petitioner that so long as a Member of Parliament is qualified to be a Member, he has constitutional rights to function as a Member and to participate in the business of the House to which he belongs and he is entitled to attend every session of Parliament, to take part in the debate and to record his vote. The right to participate in the business of the legislative chamber to which the Member belongs was described by the petitioner as a constitutional right and it was urged that this constitutional right of a legislator can be regarded as his fundamental right. After an elaborate discussion, the apex court observed that the rights of a Member of Parliament to attend the session of Parliament and to participate in the debate and to record his vote are not constitutional rights. Moreover, in the strict sense, the rights of a Member to attend Parliament in response

to summons or to address the House or to vote are not fundamental rights at all. And hence, so far as a valid order of detention is concerned, a Member of Parliament can claim no special status higher than that of an ordinary citizen. HAS

A MEMBER

IN CUSTODY

RIGHT TO PARTICIPATE

UNDER

PREVENTIVE

IN THE PROCEEDINGS

DETENTION

OF THE

ORDER

ANY

House?

In Re: K. Anandan Nambiar,' it was held by the Madras High Court that once a

Member of a Legislative Assembly is arrested and lawfully detained, though without

actual trial, under any Preventive Detention Act, there can be no doubt that under

the law as it stands, he cannot be permitted to attend the sittings of the House.

2 AIR 1952 Mad 117. > AIR 1966 SC 657: 1966 CriL] 586: [1966] 2 SCR 406. 4 AIR 1952 Mad 117: (1952) 1 ML] 1.

70

Analysis of Case Laws

In K. Anandan Nambiar of the petitioner that no the session and since the a Member of Parliament

and Anr, it was argued before the Supreme Court on behalf law can validly take away the right of the legislature to attend Defence of India Act and the rules framed under that permit to be detained, it contravenes the constitutional rights of a

Member and hence such rules are invalid. It was further contented that such rules

should be treated as valid only in regard to persons other than those who are Members

of legislatures, and, in that sense, the rules must be construed as not to apply to legislators. By drawing an analogy between detention and conviction/imprisonment, which would disqualify a Member to attend a session under Article 102 of the

Constitution and under Section 7 of the Representation of the People Act, the apex

court held that ‘ifa person who is convicted and sentenced, has necessarily to forgo his

right of participating in the business of the Legislature to which he belongs, because

he is convicted and sentenced, it would follow that a person who is detained must

likewise forgo his right to participate in the business of the Legislature’. As per the

court, the true constitutional position is that so far as a valid order of detention is concerned, a Member of Parliament can claim no special status higher than that of

an ordinary citizen and is as much liable to be arrested and detained under it as any

other citizen.

In Ansumali Majumdar and Ors v. The State of West Bengal and Anr,° the Calcutta High Court has elaborately considered this point and has held that a Member of the

House of the Central or State Legislature cannot claim as any immunity from arrest under the Preventive Detention Act on the contention that a Member of Parliament

cannot, by reason of his detention, be prevented from exercising his rights as a Member and participate in the proceedings. In Raghu Raj Pratap Singh alias Bhaiya v. State of UP and Ors,’ the High Court of Allahabad reiterated this view held that so long as the legislators are detained under valid detention order, they no right or privilege to participate in the session of the House. DOES

THE ARRESTED

HIM TO TAKE

PART

MEMBER

ENTITLED

IN THE PROCEEDINGS

FOR A WRIT OF MANDAMUS OF THE

such Raja and have

ENABLING

HOUSE?

If the arrest and detention of the Member is legal and under due process of law, he cannot claim that his detention should be subordinated to his right to attend the

proceedings in the House. As the law stands today in the country, there is no statutory provision for any mandamus to direct the State Government to enable the arrested Member to attend the session.®

> K. Anandan Nambiar and Anr v. Chief Secretary to the Government of Madras, AIR 1966 SC 657: 1966 CriL] 586: [1966] 2 SCR 406. °LL.R. [1954] I. Cal. 272. 7 2003 (3) AWC 2016. 8 A. Kunjan Nadar v. The State, AIR 1955 TC-Cochin 154.

Members’ Right to Attend Session of the House while under Arrest/Detention WHETHER ON

THE SUMMONS

THE MEMBER

ISSUED

TO ATTEND

BY THE

PRESIDENT

CAST ANY

7

OBLIGATION

THE SESSION?

Articles 85 and 86 confer on the President the power to issue summons for the ensuing session of Parliament and to address either House of Parliament or both Houses as specified therein. These articles cannot be construed to confer any right as such on individual Members to participate in the sessions. As such the summons served on the Members do not impose any obligation on them to attend the proceedings in the House. The Constitution does not attach any obligation on the Members to be present in the House when the President addresses it. The Constitution does not make Members of Parliament bound to attend the session. The context in which these articles appear shows that the subject-matter of these articles is not the individual rights of the Members of Parliament, but they refer co the right of the President to issue a summons for the ensuing session of Parliament or to address the House or Houses. Hence, the contention that since the Member has received the summons he must be permitted to attend the session from the custody was found to be untenable.’

CAN THERE BE RIGHT TO ATTEND THE SESSION FROM THE CUSTODY ON THE PLEA THAT OTHERWISE IT WOULD CONSTITUTE A BREACH OF PRIVILEDGE OF FREEDOM OF SPEECH?

The Members of Parliament have the privilege of freedom of speech, but that is only when they attend the session of the House and deliver their speech within the

chamber itself. In Raghu Raj Pratap Singh alias Raja Bhaiya v. State of UP and Ors,'° the contention of the petitioner was that in a parliamentary system of government, the rights of a Member of Parliament or State Legislature to participate in the proceeding of the House, to express his views and to vote are most necessary and the same cannot be denied to him unless he has incurred any disqualification from continuing as such Member. The court held that so long as Members of legislature are detained under valid order they cannot enjoy parliamentary privileges and rights during their detention. The rights and privileges are available to the Members only when they are inside the House and the freedom/right of speech is to be exercised by the Member inside the House. If the order of detention validly prevents him from attending a session of Parliament, no occasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded." The composition of Parliament is not dependent on the inability of a Member to attend for whatsoever reason. The detention of Members of Parliament is by a ” Supra note 3. '0 Supra note 7. '' Supra note 5.

72

Analysis of Case Laws

statutory authority in the exercise of statutory powers.'* The Members’ right to attend the session wil! not prevail over the statutory rules on preventive detention. Hence, an arrest or detention in itselfis not a breach of any privileges of the individual Members or of the House. CONCLUSION

The right to attend the proceedings of a House is not a fundamental or constitutional

right. A Member of legislature detained under the preventive detention law or arrested under a valid law has no right to participate in the proceedings of the House from

prison even under prison escort. Such detention or arrest does not violate any of the

privileges of the Members or of the House.

'2 Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr., AUR 1975 SC 2299: 1975 (Supp) SCC 1: [1976] 2 SCR 347.

> Writ Petitions Challenging Resolutions Adopted by the House

Under the parliamentary procedure, a resolution’ is one of the procedural devices to raise a discussion and obtain the decision of the House on a matter of general public interest. A resolution must purport to convey the opinion of the House as a whole

and it can be moved by a Member or a minister. The Supreme Court and the high courts on the other hand, are empowered, under Articles 32 and 226 respectively, to enforce the fundamental rights and other rights if they are violated by any authority

and for these purposes they are duty bound to issue writs for the protection of a citizen’s constitutional rights. Articles 122 and 212 expressly prohibit the jurisdiction of the courts in respect of the exercise of powers vested in any officer or Member of Parliament or an officer or Member ofa legislature in whom powers are vested under the Constitution for regulating procedure or conduct of business or for maintaining order in the Houses. Though, not frequently these resolutions were have been challenged before the high court as well as in the Supreme Court in several cases. POWER

OF THE COURT

TO

ISSUE WRITS ON

LEGISLATURES

This issue was discussed by the court in two cases. In C. Srikisen v. State of Hyderabad and Ors.’ a writ petition was filed in the High Court of Hyderabad for the declaration and issue of a writ of prohibition to certain persons and institutions restraining them from the introduction of the Draft Reorganisation Bill in Parliament and the proposal for the disintegration of Hyderabad State. It was contended in the petition that the implementation of the State Reorganisation Commission’s report, and the proposed

' A resolution may be in the form of a declaration of opinion, or a recommendation; or may be in a form so as to record either approval or disapproval by the House of an act or policy of government or convey a message; or call attention to a matter or situation for consideration by government; or in such other form as the Speaker may consider appropriate. ? AIR 1956 Hyderabad 186.

74

Analysis of Case Laws

legislation to give effect to the proposal contained therein, would not only injure the people of Hyderabad in general—politically, socially and economically—but it would effect the petitioner most adversely and may cause mental shock to have his land of birth torn by disruptive forces and elements, and injure him financially and otherwise. The High Court of Hyderabad dismissing the writ petition on the ground that the petition was not maintainable under law and held that Articles 122? and 212? expressly prohibit the jurisdiction of the courts in respect of the exercise of powers vested in any officer or Member of Parliament or an officer or Member of a legislature in whom powers are vested under the Constitution for regulating procedure or

conduct of business or for maintaining order the respective Assemblies. The court clarified that the Speaker of Parliament or legislature or the Chairman of the Rajya

Sabha are officers within the meaning of these articles and the courts cannot interfere with them in the part they play in the proceedings or business of the Assemblies, nor can they interfere with their privileges, as the rights of any of them to introduce any bill in their respective Assemblies are rights and privileges of these Members. There is an inherent right in the legislatures to conduct their affairs without interference from any outside body.

Again in Hem Chandra Sen Gupta and Ors v. The Speaker of Legislative Assembly

of West Bengal and Ors,’ the issue was whether a court of law has the power to issue a writ against a legislative body for preventing it from passing a legislation. As per the

facts of this case, a resolution was adopted in the West Bengal Legislative Assembly

seeking the approval of the House proposing a merger of the two States of West Bengal and Bihar. Opposing the proposed merger, Shri Hem Chandra Sen Gupta filed a writ petition in the High Court of Calcutta. By dismissing the petition, the

court held that, such matters are within the allotted spheres of the legislature and

cannot be called into account by the courts of the land and it cannot issue a writ prohibiting the Speaker from presiding over sittings of the House. In A. K. Roy v. Union of India® the issue that arose was whether a writ petition is maintainable against an Ordinance promulgated by the President under Article 123 which takes away the fundamental rights guaranteed under the Constitution. The court held that

though the act, as a measure of preventive detention, cannot be challenged on the

broad and general ground that such acts are calculated to interfere unduly with the liberty of the people, Article 123 of the Constitution deals with the President's power to promulgate ordinances and the nature and effect of an ordinance promulgated under Article 123.

> Article 122 bars the jurisdiction of the courts to inquire into proceedings of Parliament. * Article 212 stipulates that courts not to inquire into proceedings of the legislature. > AIR 1956 Cal 378. * AIR 1982 SC 710.

Writ Petitions Challenging Resolutions Adopted by the House

75

POWER OF LEGISLATURES TO COMMIT FOR CONTEMPT AND JURISDICTION OF Courts

In the matter of Under Article 143 of the Constitution of India,’ the UP Assembly adjudged one Keshav Singh for breach of privilege, guilty of its contempt, and directed that he be sent to jail. An advocate presented a petition to the Allahabad High Court for a writ of habeas corpus on his behalf, and the two Judges granted him interim bail. The UP Assembly passed a resolution holding Keshav Singh, his advocate and

the two Judges, who issued the writ of habeas corpus, as having committed contempt of the House and should be brought in custody before the House. Having heard this resolution the two Judges filed a petition in the same high court under Article 226

challenging the impugned resolution passed by the House as unconstitutional and violative of the provisions of Article 211° of the Constitution. The two Judges contended that the resolution passed by the Legislative Assembly amounted to contempt of court and it was wholly without jurisdiction. Therefore, it should be stayed from being implemented. Consequently, the Full Bench of Allahabad High Court stayed the implementation of the resolution till the disposal of the writ petition. At this stage, the President of India referred this matter to the Supreme Court for its advisory opinion under Article 143 of the Constitution. The Supreme Court held that the Judges had not committed contempt by issuing the bail order and that the right of the citizen to move the court and the right of the advocate to assist the person were not affected or controlled by Article 105(3). The court also observed

that the Lucknow Bench was competent to issue writ of habeas corpus to release Keshav Singh. POWER

OF CourTS

RESOLUTIONS

TO

ADOPTED

ENTERTAIN BY THE

WRIT

PETITIONS CHALLENGING

HOUSE

In O. S. Manian v. Speaker, Tamil Nadu Legislative Assembly, a very pertinent issue arose before the court as to whether the powers of judicial review under Article 226

of the Constitution in respect of the impugned proceedings could be invoked and remedy of writ was available or maintainable to quash the impugned proceedings? In this case, the Madras High Court by reiterating Keshav Singh’s'® case held that the writ petition was maintainable and the impugned proceedings could be challenged before

the court under Article 226 of the Constitution. Another question that arose in this

case was whether the challenge to the Legislative Assembly resolution was maintainable by way of a writ petition under Article 226 of the Constitution? One of the arguments

’ AIR 1965 SC 745. § Article 211 says: “No discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court in the discharge of his duties.’ » (2000) 4 MLJ 121. 10 Supra note 6.

76

Analysis of Case Laws

raised in this case was that the resolution passed by the Legislative Assembly cannot be considered as procedure established by law; therefore, such a resolution cannot take away the life of the MLA (detenue) guaranteed under Article 21 of the Constitution. On this point the court held that the resolution passed by the Tamil Nadu Legislative Assembly cannot be the subject matter of judicial review under Article 226 of the Constitution and the writ petition was not maintainable. It was further observed that the resolution passed by the Assembly was a valid action on the part of the Tamil Nadu Legislative Assembly and there was no illegality in the said action.

EFFECT OF DISSOLUTION OF THE HOUSE ON THE RESOLUTION ADOPTED BY THE HOUSE

In these two cases, the court examined the effect of dissolution of the House on a resolution adopted by the House. In Sub-committee of Judicial Accountability v. Union of India and Ors,'' it has been held that the process for impeachment started in accordance with the provisions of the Judges (Inquiry) Act, 1968 does not lapse on the dissolution of the House of the People. Further, it was held that, although the address for the removal of Judge has to be presented in the same session, the proceedings for the investigation and proof can be started earlier, either in a previous session or even

in the previous Parliament. In Sarojinit Ramaswami v. Union of India and Ors,” the question raised was whether the motion once admitted would lapse on the dissolution of the House. In this case, the Speaker admitted the motion for the removal of Justice Ramaswamy and constituted a Committee to investigate the charges leveled against him. Soon after the adoption of the motion the Ninth Lok Sabha was dissolved and the newly constituted government declined to admit the same on the ground that it had lapsed. The court decided that the motion once admitted did not lapse on the

dissolution of the Lok Sabha. CONCLUSION Articles

122 and 212 of the Constitution give protection to the proceedings

in

Parliament and State Legislature and the resolutions adopted in a House of Parliament or State Legislatures, as the case may be, are not amenable to judicial review. The various case laws cited above hold the same view.

'" AIR 1992 SC 320. '? AIR 1992 SC 2219.

6 Writ Petitions Challenging the Decisions of the Chairman/Speaker

POSITION OF THE SPEAKER UNDER THE CONSTITUTION

The Speaker or the Chairman, as the case may be, holds a pivotal position in the scheme of parliamentary democracy and is the guardian of the rights and privileges of the House. He performs a wide-ranging functions, including the performance of important functions of a judicial character. The provisions contained in Articles 93!

to 95? of the Constitution deal with the functions and powers of the Speaker in Parliament. Articles 178° to 180‘ of the Constitution deal with the powers and

functions of the Speaker in the State Legislature. The Speaker conducts the business and regulates the proceedings of the House. He performs these functions in accordance with the provisions of the Constitution and the Rules of Procedure and Conduct of Business in the Lok Sabha.® The Speaker is the final interpreter of the provisions of the Constitution and the Rules of Procedure in the House. His decision in all parliamentary matters is final. In respect of matters specifically provided for in the ' Under Article 93 of the Constitution, the House of the People shall choose two members of the House to be respectively the Speaker and the Deputy Speaker thereof and whenever either office falls vacant, the House shall choose another member to be Speaker or Deputy Speaker, as the case may be. , ? Regarding the powers and duties to be exercised by the Deputy Speaker, Article 95 of the Constitution provides that while the office of Speaker be vacant, his duties will be performed by the Deputy Speaker and if the office of the Deputy Speaker is also vacant, those duties shall be performed by a Member of the House appointed for the purpose by the President of India. > Article 178 of the Constitution contemplates the office of the Speaker and Deputy Speaker of the Legislative Assembly of a State. * Article 180 of the Constitution provides the power to the Deputy Speaker to hold the office in the absence of the Speaker. > Lok Sabha Rules from 360 to 389 provides for the position, powers and functions of the Speaker in the Lok Sabha.

78

Analysis of Case Laws

rules, the Speaker has residuary powers to issue directions and for this he may call upon a Member or the Government to place before him facts, evidence and information which he may consider necessary in arriving at a decision. But such a final decision cannot be challenged on any grounds.

IMMUNITY UNDER ArTICLES 122(2) AND 212(2) The Constitution has not provided any scope or authority to the judiciary to inquire

into any legislative proceedings. With respect to the discharge of his powers and functions, the Speaker is not amenable to anyone except to the House. Under

these provisions, the court's authority is limited and there is total immunity for the

proceedings of Parliament and State Legislature. Since immunities of the legislatures

has been conferred under Articles 122 and 212, under the Constitution, and the

Speaker being the representative of the House, these immunities automatically protect the decision of the Speaker provided he has exercised his powers conferred on him

in accordance with the Rules of Procedure of the House. The Orissa High Court in Godavari Mishra v. Nandakisore Das, Speaker, Orissa Legislative Assembly held that

the Speaker is the representative of the House and the powers, privileges and the immunities of the legislatures, therefore, necessarily imply immunity of the Speaker. DECISION

OF THE

SPEAKER

UNDER

THE TENTH

SCHEDULE

The Tenth Schedule of the Constitution has vested supreme power on the Speaker to

decide the issue of disqualification of a Member and no court of law® can enter into the arena of the powers and jurisdiction of the Speaker in this regard. Paragraph 8 empowers the Chairman and the Speaker of the Houses to make rules for giving

effect to the provisions of the Tenth Schedule. The rules so made are required to be

laid before the House. Apart from that, paragraph 7 bares the jurisdiction of courts in

respect of any matter connected with the disqualification of a Member of the House. In Ravi S. Naik and Sanjay Bandenkar v. Union of India,’ the Supreme Court has held that the Disqualification Rules framed under paragraph 8 of the Tenth Schedule to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him by paragraph 6 of the Tenth Schedule are procedural in nature

and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph 2 of paragraph 6 of the Tenth Schedule. The court further held that judicial review in respect of the order passed

* Under Articles 122 and 212 of the Constitution, no court of law can inquire about the proceedings of Parliament and State Legislature. ’ AIR 1953 Ori 111. * Under Clause 6 of the Tenth Schedule it has been made clear that the decision of the Speaker of the House in the matter of disqualification ofa member shall be final. ” AIR 1994 SC 1558.

Writ Petitions Challenging the Decisions of the Chairman/Speaker

79

by the Speaker under paragraph (1) of paragraph 6 is confined to breaches of the constitutional mandate. Hence, the violation of the Disqualification Rules does not amount to the violation of constitutional mandate and it is not subjected to judicial review.

In Parkash Singh Badal and Ors, v. Union of India and Ors,'° an order passed by the Speaker of the Punjab Legislative Assembly, recognising a breakaway group of the Shiromani Akali Dal legislature party as a separate group, was challenged by the petitioners through a writ petition in the Punjab and Haryana High Court. The petitions posed the challenge at two levels: whether paragraph 6(1) of the Tenth Schedule does have the effect of excluding the jurisdiction of the high court under Article 226 and the Supreme Court under Article 136 of the Constitution, and whether the order of the Speaker can be treated as a decision under paragraph 6 of the Tenth Schedule. While deciding the issue, the Full Bench of the High Court of Punjab and Haryana was of the view that the provisions of paragraph 6(1) do not have the effect of excluding the jurisdiction of the high court under Article 226 or of the Supreme Court under Article 136 of the Constitution and, therefore, the paragraph did not require ratification under proviso to Article 368(2) of the Constitution. On

the second issue, the court quashed the order passed by the Speaker on the ground that it was not an order made under paragraph 6 of the Tenth Schedule. In Bhajaman Behera v. Speaker, Orissa Legislative Assembly,'' a Full Bench of the Orissa High Court refused to issue notice to the Speaker regarding a proceeding initiated before him for determination of the question whether the petitioner had incurred disqualification to remain a Member of the Assembly under the Tenth

Schedule of the Constitution. Actually, in this case, the notice which was issued to the

petitioner was addressed to the Secretary instead of the Speaker. The court held that it can be regarded as an irregularity of procedure and not a case of lack of jurisdiction. The Supreme Court struck down paragraph 7 as unconstitutional in Kihota Hollohan v. Zachilhu and Ors’? on the ground that it affected the powers of judicial review of the Supreme Court and the high court under Articles 136, 226 and 227 of the Constitution. It was held that the Speaker's decision is subject to judicial review if such an order passed by the Speaker was against the constitutional mandates and noncompliance with the rules of natural justice and perversity. However, by a majority decision, the apex court upheld the validity of the remaining paragraphs of the Tenth Schedule, holding them to be severable from the provisions of paragraph 7 of the

Tenth Schedule. In Dr Kashinath G. Jalmi and Anr v. The Speaker and Ors,'* it was

observed that the Speaker of the Legislative Assembly has no power of review under the Tenth Schedule and an order of disqualification made by him under paragraph 6 is subject to correction only by judicial review. Again, in Ravi. S. Naik and Sanjay 10 AIR 1987 P&H 263. '! AIR 1990 Ori 18.

12 1992 Suppl (2) SCC 651.

'5 AIR 1993 SC 1873.

80

Analysis of Case Laws

Bandenkar v. Union of India,'“ a very pertinent issue to appear before the court is whether the Speaker's order of disqualifying a Member is subject to judicial review

under the constitutional mandate. On this issue, the court held that judicial review of

a Speaker's order disqualifying a Member is permissible in spite of finality imparted under paragraph G to the Speaker's decision. In Mayawati v. Markandeya Chand," regarding the conditions to apply split, Punchhi. J. C. J. made a passing reference to the scope of the judicial review of the Speaker's decision and opined that the act of recognising ‘the time of split’ is a administrative action and it is different from the quasi-judicial order of the Speaker. The issue finally came before the Supreme Court in Rajendra Singh Rana and Ors v. Swami Prasad Maurya and Ors.'° In this case, the court observed that the decision

of the Speaker is not immune from judicial review and the judicial review is available

on grounds such as gross violation of natural justice, bias, perversity, and such like

defects. Speaking on the facts, it was clear that the Speaker, in the original order,

left the question of disqualification undecided. Thereby he has failed to exercise the

jurisdiction conferred on him by paragraph 6 of the Tenth Schedule. Such a failure to

exercise jurisdiction cannot be held to be covered by the shield of paragraph 6 of the Schedule. He has also proceeded to accept the case of a split based merely on a claim

in that behalf. It was undisputable that in the order that was originally subjected to challenge in the writ petition, the Speaker specifically refrained from deciding the petition seeking disqualification of the 13 MLAs. The court clearly found there was

an error which attracted the jurisdiction of the high court in exercise of its power of judicial review.

JUDICIAL REVIEW OF THE SPEAKER’S DECISION ON THE GROUND OF VIOLATION OF FUNDAMENTAL RIGHTS Despite the Speaker enjoying vast powers, under the Constitution, there are

certain limits to his authority. For example, the Speaker cannot compel the Members to flout the orders of the court and obey his own

rulings. Articles 105 and

194

entrust the powers, privileges and immunities of the Members of Parliament and State Legislatures, respectively, and this will override the powers of the Speaker if it is arbitrary and unconstitutional. In Gunupati Keshavram Reddy v. Nafisul Hassan and the State of UP," a writ petition was filed in the Supreme Court under Article 32 invoking the extraordinary jurisdiction of the court to issue the writ of Aabeas corpus against

the Speaker who had arrested a Member for committing contempt of the House. The court issued the writ against the detaining authority to release the detenue in order to 4 'S '© '”

AIR1 994 SC AIR 1998 SC (2007) 4 SCC AIR 1954 SC

1558. 3340. 270. 636.

Writ Petitions Challenging the Decisions of the Chairman/Speaker

8|

give him protection under the fundamental rights guaranteed under Article 22(2)!* of the Constitution. In this case, the court also clarified that the legislative privileges,

conferred under Articles 105 and 194, were subject to the fundamental rights of the citizens.

In M. S. M. Sharma,’ a writ petition was filed before the court under Article 32 complaining of infringement of the fundamental rights under Articles 19(1)(a) and 21 of the Constitution. As per the facts, a journalist had approached the Supreme Court after notice had been issued upon him to show cause as to why appropriate action should not be recommended against him for breach of privilege of the Assembly in respect of some offending matters published by him against the order of the Speaker. The Supreme Court opined that the legislature has the jurisdiction to control the publication of its proceedings and go into the question whether there has been any breach of privilege, and in this regard the legislature is vested with complete jurisdiction of any of its proceedings in accordance with its rules of business and mere non-compliance with the rules and procedure cannot be a ground for issuing a writ.

In State of Kerala v. R. Sudarsana Babu,” the issue was whether a court of law can take cognisance of a complaint against the Speaker of a Legislative Assembly on the ground that action taken by him under Rules of Procedure and Conduct of Business of the Legislative Assembly was discriminatory and violative of fundamental rights. The court responded saying a petition under Article 226 of the Constitution would

be maintainable even against the legislature of a State as such legislature is within the

definition of the term ‘the State’ in Article 12 of the Constitution and the rules framed under Article 208 of the Constitution regulating the procedure of the House of the

legislature and the conduct of its business are liable to judicial review if there was a

case of infringement of the fundamental rights. Again, such a confrontation arose in Keshav v. State of UP"' wherein the court observed that even though Parliament and the State Legislatures must have the power

to function without interference by the citizens and to punish such interference as gross contempt, but when such punishment results in the deprivation of the citizen's personal liberty, the citizen has a right to approach the court under Articles 226 and 32 of the Constitution. The Supreme Court in this case held that the courts have no jurisdiction over Parliament and the Speaker. In O. S. Manian v. Speaker, Tamil Nadu Legislative Assembly,” a question arose whether the Speaker of the Madras Legislative Assembly can take away the fundamental rights of the Member expressly conferred under Article 22(2) of the Constitution

by arresting him

under a warrant after a

resolution is passed in the Legislative Assembly? The court held that the legislative '8 Article 22(2) deals with protection against double jeopardy. 19M. S. M. Sharma v. Shri Krishna Sinha and Ors, AIR 1960 SC 1186. 20 ILR (Kerala) 1983 661.

21 AIR 1965 SC 745.

22 (2004) 4 MLJ 121.

82

Analysis of Case Laws

privileges conferred under the Constitution shall be enforced in such a way that no

fundamental right of the Member is violated.

CONCLUSION

No doubt,

interference

Parliament and the State Legislatures have immunity from judicial under

Articles

122

and

212

of the

Constitution,

however,

if the

proceedings are conducted in contravention to the provisions then the courts can intervene and examine the validity of such proceedings through the writ petitions

conferred under Articles 32 and 226 of the Constitution. Regarding the question of scope of judicial review of the Speaker's decision recently, the Supreme Court in Rajendra Singh Rana and Ors v. Swami Prasad Maurya and Ors’? upheld its earlier

decisions that the Speaker's decision was not immune from judicial scrutiny.

** Supra note 16.

/ Qualifications and Disqualifications of Members of Parliament and State Legislatures

There are certain provisions’ in the Constitution that lay down the qualifications for

membership to Parliament and State Legislature in order to ensure that a person who is not qualified to be a Member does not become a Member thereof. Under the scheme of the Constitution, notwithstanding the election of a person to such membership, such election can be challenged before the appropriate authority. QUALIFICATION

FOR MEMBERSHIP

TO

PARLIAMENT

AND

STATE

LEGISLATURES

Articles 84 and 173 of the Constitution lay down the basic qualifications for membership to the legislature. Article 84 provides the following qualifications to be possessed by a person qualified to be chosen for membership of Parliament. (i) The person is a citizen of India, and makes and subscribes before some person

authorised in that behalf by the Election Commission an oath or affirmation

according to the form set out for the purpose in the Third Schedule; (ii) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat in the House of the People, not less than twenty-five years of age; and (iii) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.

Article 173 has a similar provision in relation to qualifications for State Legislature. Apart from the requirements of citizenship, oath or affirmation and other qualifications, prescribed under the law made by Parliament, in case of a seat in the Legislative

Assembly, the age requirement is not less than twenty-five years of age and in case of

Legislative Council, of not less than thirty-five years of age. ' Articles 84, 102, 103, 104, 173, 191, 192 and 193.

84

Analysis of Case Laws

It is open for Parliament to prescribe any qualification if they feel it is necessary. In the absence of it, there can be no other than those expressly provided.’ In Baljeet Singh v. Election Commission of India,’ a very pertinent issue arose before the court, as to

whether literacy is an implied qualification for membership under the Constitution. The court responded in the negative for the simple reason that there can be no implied

qualifications. Making a special reference to the Constituent Assembly debates wherein literacy was deliberately not made an essential qualification, the court refused

to exercise any role in this regard, as their jurisdiction was limited to the qualifications and disqualifications laid down. The true import of having a scheme of qualifications as provided in the Constitution

for the legislators can be seen in the words of Dr Ambedkar, Chairman of the Drafting

Committee.

It is desirable that a candidate who actually wishes to serve in the Legislature should have some higher qualifications than merely being a voter. The functions that he is required to discharge in the House require experience, certain amount of knowledge, and practical experience in the affairs of the world, and I think if these additional qualifications are accepted, we shall be able to secure the proper sort of candidates who would be able to serve the House better than a mere ordinary voter might be.‘ DECISION

ON

QUESTIONS

RELATING

TO

DISQUALIFICATION

OF MEMBERS

Articles 103 and 192 set outa parallel scheme so far as disqualification from membership to Parliament

and

Legislative Assembly

or Legislative Council

is concerned.

In

England, the question of disqualification of membership is decided by each House

of Parliament. By virtue of Article 103, in India the question has to be referred to the

decision of the President and his decision shall be final. ArticLte 103

Article 103 reads:

1. If any question arises as to whether a Member of either House of Parliament has become subject to any of the disqualifications mentioned

in Clause (1) of

Article 102, the question shall be referred to the decision of the President and his

decision shall be final.

? Under the Representation of the People Act, 1951, a very noticeable difference between qualifications prescribed by Parliament for the membership of a Legislative Assembly by Section 5 of the Representation of the People Act, 1951, and those for the membership of a Legislative Council by Section 6 of that act can be seen. So far as a member of the Legislative Assembly is concerned, he or she has to be an Elector in the constituency from which he or she stands, but a member of a Legislative Council in a State is not similarly required to be a member of the electorate. > AIR 2001 Del 1.

* See, Constituent Assembly Debates, vol. VIII, p. 89.

Qualifications and Disqualifications of Members of Parliament and State Legislatures

85

2. Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion. It requires the President to consult the Election Commission of India on the question of disqualification.? The provision is applicable to cases wherein membership is questioned after the election of the concerned person to the seat. It was held in The Election Commission of Indiav. N. G. Ranga and Ors,’ that the Election Commission

(hereinafter Commission) has the power and authority to require the concerned parties to furnish information on matters which are relevant to the subject matter of the enquiries pertaining to questions referred to by the President under Article 103. The authority of the Commission emanates from the Representation of the People Act, 1951, which confers extensive powers of summoning and enforcing the attendance of any person, examining him on oath, the discovery and production of any document and receiving evidence on afhdavit, etc. STATUTORY DISQUALIFICATIONS Parliament is empowered to lay down disqualifications by a law. of the People Act, 1951, lays down a few of them. For instance, person from the membership of a legislature if convicted for an with imprisonment for not less than two years, or has failed election expenses, etc.

The Representation the act disqualifies a offence, punishable to lodge account of

In NV. G. Ranga it was also clarified that since Article 102(1)(e) provides that a

person shall be disqualified for being chosen by or under any law made by Parliament, so in that case disqualifications under the Representation of the People Act can be the

subject matter of enquiry and decision under Article 103. In that case, a declaration

of disqualification under the act by the Commission will be a declaration under

Articles 102(1)(e) and consequently Article 103(2).

DISQUALIFICATIONS UNDER ARTICLE 192 Article 192 states:

1. If any question arises as to whether a Member of a House of State Legislature has become subject to any of the disqualifications mentioned in Clause (1) of Article 191, the question shall be referred to the decision of the Governor and his decision shall be final.

2. Before giving any decision on any such question, the Governor shall obtain the

opinion of the Election Commission and shall act according to such opinion.

The provision requires that the decision of disqualification be pronounced by the Governor in accordance with the opinion of the Commission. In Brundaban Nayak v. > Subs. by (Forty-second Amendment) Act, 1976 and (Forty-fourth Amendment) Act, 1978. 6 AIR

1978 SC 1609.

86

Analysis of Case Laws

Election Commission of India and Anr,’ the court stated that under Article 192, when the Governor pronounces his decision, he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself, he has merely to forward the question to the Commission

for its opinion. In substance,

all complaints in respect of disqualification incurred by the Members who have to

be validly elected have to be tried by the Commission and the decision in form is

pronounced by the Governor. In some cases the complaints made to the Governor can

be frivolous and in such cases the Commission will reject them straightaway.

Sou Suvarna Prakash Patil y. Anil Hindurao Powar explained that there should

be no difficulty in holding that any citizen is entitled to make a complaint to the

Governor alleging that any Member of the Legislative Assembly has incurred one of the ‘disqualifications’ mentioned

in Article 191(1) and should, therefore, vacate his

seat. The whole objective of democratic elections is to constitute legislative chambers

composed of Members who are entitled to that status and if any Member forfeits that

status by reason of a subsequent disqualification, it is in the interests of the constituency which such a Member represents that the matter should be brought to the notice of the

Governor and decided by him in accordance with the provisions of Article 192(2). DECISIONS OF THE ELECTION COMMISSION OF INDIA

The court in The Election Commission of India and Anr v. Dr Subramaniam Swamys

looked into the decision-making process of the Election Commission before it forms

its opinion under Articles 103 and 192. The opinion of the Commission is inclusive of the decision of the Chief Election Commissioner. But in cases wherein allegations of likelihood of bias or partiality are raised, a safer mechanism is sought. Ifa unanimous opinion of the Election Commissioners is reached, it is to be communicated to the Governor. The Chief Election Commissioner should rescue himself by announcing that he would not participate in the formation of such opinion. In the absence of such unanimicy, the doctrine of necessity can be invoked for him to express his opinion. CHALLENGE TO THE ORDER OF GOVERNOR

In A. K. Subbaiah v. Ramakrishna Hegde and Ors,’ it was stated that the decision of

the Governor under Article 192(1) can be challenged by the concerned (disqualified)

Member before a competent court. A writ petition can be filed to challenge the decision. But the petitioner would have to establish the existence of the vitiating factors, namely, if it appears that the order was passed by the Governor on the following grounds: (a) Collateral considerations; or,

(b) Rules of natural justice were not observed; or, ? AIR 1965 SC 1892. * AIR 1996 SC 1810. ” 1993 (4) Kar LJ 205.

Qualifications and Disqualifications of Members of Parliament and State Legislatures

87

(c) Governor's judgement was coloured by the advise or representation made by the Executive; or,

(d) It was founded on no evidence. DISQUALIFICATION

FOR

HOLDING

OFFICE OF

PROFIT

The provision related to ‘office of profit’ has been the subject of debates and elaborate

interpretations by the courts. The Commission has to look into the true intention of

the Constitution framers before disqualifying a Member on this ground. Biharilal Dobray v. Roshan Lal Dobray'® stated that the objective of enacting

Article 191(1)(a)'! was that a person who is elected to a legislature should be free to

carry on his duties fearlessly without being subjected to any kind of governmental pressure. If such a person is holding an office which brings him remuneration and the

Government has a voice in his continuance in that office, there is every likelihood of

such a person succumbing to the wishes of the Government. It is intended the possibility of a conflict between duty and interest and to maintain the legislatures.'* The term ‘office of profit’ is an expression of wide import as ‘post held under the government’. It generally involves two elements: (i)

to eliminate purity of the compared to there should

be an office; and (ii) that it should carry some remuneration. For holding an office

of profit need not be being in the service of the government, and there need not be a relationship of master and servant.

In Jaya Bachchan v. Union of India and Ors,’? the court again emphasised that the question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of payment must be considered as a matter of substance rather than form. Nomenclature is not important. If the pecuniary gain is receivable in connection with the office, then it becomes an office of profit irrespective of whether

such pecuniary gain is actually received or not.

Under Article 191(1)(a), the State Legislature has the power to declare by law what

office or offices of profit held under the government shall not disqualify the holder thereof from being chosen or being a Member of the State Legislature. Bhagwan Dass

Sehgal v. State of Haryana and Ors'* stated that the classification of offices for the

purpose of removing the disqualification has thus been left primarily to legislative discretion. It follows that so long as this exemptive power is exercised reasonably,

with due restraint, and in a manner which does not drain out Article 191(1)(a) of its '0 AIR 1984 SC 385. '' Corresponding provision to this is Article 102(1)(a) wherein a person shall be disqualified from being chosen as, and for being a member of either House of Parliament, if he holds an office of

profit.

'2 The which 'S AIR '4 AIR

principle can be traced to developments in English Constitution history, in the course of it came to be established chat the Crown and its officers shall have no say in Parliament. 2006 SC 2119. 1974 SC 2355.

88

Analysis of Case Laws

real content or disregard any constitutional guarantee or mandate, the court will not interfere. It is a matter of legislative discretion to be exercised reasonably and with due

restraint not derogating from the constitutional ideals. PENALTY

FOR

SITTING

OR VOTING

WHEN

NOT

QUALIFIED

OR

DISQUALIFIED

Articles 104 and 193 are important provisions which take note of the fact that notwithstanding the election of a person as a Member of Parliament or Legislative Assembly or Legislative Council, he can be a person who is not qualified or was disqualified for such membership. Article 104 says: Penalty for sitting and voting before making oath or affirmation under Article 99 or

when not qualified or when disqualified: Ifa person sits or votes as a member of either House of Parliament before he has complied with the requirement of Article 99, or

when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the Union.

Article 193 is a similar provision to Article 104 wherein penalty is due to the State for sitting and voting in the Legislative Assembly or Legislative Council. The scheme of the provisions brings forth two grounds for the imposition of liability. When the person sits or votes he is:

(i) disqualified for membership (the relevant provisions dealing with disqualifications have been discussed earlier), or

(ii) not qualified to sit as a Member of Parliament or Legislature of state. A few aspects not specifically dealt with under the provisions have been looked into

by the courts. In A. Swamickan v. K. Venkatachalam and Anr,"> the court stated that

Articles

191,

192 and

193 constitute a set of provisions intended to ensure that a

person who is either not qualified nor is disqualified to be a Member of the Legislative

Assembly or the Legislative Council does not sit as a Member thereof and does not function as a representative of the voters. Both Articles 192 and 193 do not, however,

provide for any particular mode or manner in which the provisions of these articles can be invoked. However, since a Member of the Legislative Assembly is a public functionary and even if a rival candidate who has been defeated at the election brings to the notice of this court that such a public functionary does not have the basic

qualifications which are required under the Constitution to enable him to occupy the office ofa public functionary, and if this grievance is found to be correct, the court would be failing in its duty in declining to give effect to the provisions of Article 193 merely on the ground that a person who has failed at the election has brought the

material facts to the notice of this court and that he had not chosen to avail of the

statutory remedy of challenging the election. 'S AIR 1987 Mad 60.

Qualifications and Disqualifications of Members of Parliament and State Legislatures

89

Artictes 193 AND 329(B) The courts have been required to address the issue as to whether there can be a challenge to the election by any means other than by an election petition. Article 329(b)'® prevents any challenge to election except by an election petition. Nevertheless, under the constitutional scheme both 193 (which sets up a mechanism of enquiry and action

other than by an election petition) and 329(b) are to be harmonised because both of

these provisions co-exist and relate to the validity of an election. In A. Swamickan v. K.

Venkatachalam,'’ the court explained that because the

founding fathers included Article 193 in the Constitution and later included Article 329(b) it can be assumed that the intention was, notwithstanding the specific bar under 329(b), that an enquiry was still permissible in a proceeding other than an election petition over whether the elected candidate had the necessary qualifications as prescribed because the absence of such qualifications would make the elected person liable to penalty. WriIT JURISDICTION

The court in A. Swamickan’s'* case also said that to give effect to the provisions of Article 193 the court can exercise its jurisdiction under Article 226 and give a declaration that the Member is not qualified to the membership of the Legislative

Assembly. Since the roles of the legislature are very vital of the country, if a public functionary does not have the the Constitution, the court would be failing in its duty to Article 193. A person cannot be permitted to occupy disqualified under the Constitution.

for the proper governance basic qualifications under if it does not give effect an office for which he is

CONCLUSION

In conclusion it can be rightly said that the framework of the Constitution sets out a

basic idea of what qualifications our leaders should possess and what possible grounds

can disqualify the existing legislative Members. It is primarily to establish a sense of accountability and dedication to the constitutional ideals of democracy and good governance.

'6 Article 329: Bar to interference by courts in electoral matters: (b) No election to either House of Parliament or to the House of either of House of Legislature of State shall be called in question except by an election petition presented to such authority and in such manner as maybe provided for by or under any law made by the appropriate legislature. '7 Supra note 15. 18 Id.

8 Anti-defection Law (Tenth Schedule)

The term defection is basically a political phenomenon. It emerged as a result of so many contributory factors such as decline of single party dominance in Indian politics, rise of regional parties lack of internal democracy in the party structure, etc. The Anti-defection Law was enacted to regulate these situations and to bring about stability in governance in the country. The Constitution (Fifty-second Amendment)

Act, 1985,' has inserted in the Constitution the provisions for the disqualification for membership on the ground of defection. Under the Anti-defection Law, a Member of either House of Parliament or of the State Legislature belonging to any political party shall be disqualified for being a Member of the House, if he has voluntarily given up

his membership of such political party or if he votes or abstains from voting in such

House contrary to any direction issued by the political party to which he belongs

or authority authorised by it in this behalf, without obtaining prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date

of such voting or abstention. The Tenth Schedule, as originally enacted, exempted

from

the purview of

disqualification on the ground of ‘split’ and ‘merger’. The provision relating to a split

was severely criticised on the ground that, while individual defection was punished, 'This act has amended Articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of Parliament and the State Legislatures and has added a new Schedule (Tenth Schedule)

to the Constitution setting out certain provisions as to

disqualification from membership of Parliament and State Legislatures on the ground of defection from the political party to which a member belongs. > The Anti-defection Law as contained in the Constitution (Fifty-second Amendment) Act, 1985, provides that no disqualification would be incurred in cases where a split in party or merger of a party with another was claimed provided that in the event of a split in the legislature party not less than one third of its members decided to quit the party, and in the case ofa merger the decision was supported by not less than two thirds of the members of the legislature party concerned. See paragraph 3 of the Tenth Schedule.

Anti-defection Law (Tenth Schedule)

91

collective defection was condoned. Therefore, the provision relating to a split has been deleted by the Constitution (Ninety-first Amendment) Act, 2003.? But the act has left paragraph 4 of the Anti-defection Law dealing with ‘mergers’ untouched. The implementation of the anti-defection law by the judiciary has brought to force new perspectives vis-a-vis interpretation of various provisions of the law. A point-wise

analysis of the decisions is given below.

SCOPE AND MEANING OF THE TERM “VOLUNTARILY GIVING UP MEMBERSHIP OF POLITICAL PARTY’ UNDER CLAUSE (A) OF PARAGRAPH 2(1) Paragraph 2(1)(a) of the Tenth Schedule stipulates that a Member will be disqualified from membership of a legislature to which he belongs if he is voluntarily giving up the membership from his original party. In Ravi S. Naik and Sanjay Bandenkar v. Union of India,’ the Supreme Court has examined the decision of the Speaker which disqualified three Members from the membership of the Goa Legislative Assembly on the ground of their voluntarily giving up membership of their original political party in terms of paragraph 2(1)(a) of the Tenth Schedule. Upholding the Speaker's

decision of disqualification, the apex court observed that ‘even in the absence of a formal resignation from membership, an inference’ can be drawn from the conduct of a Member that he has voluntarily given up his membership of the political party to which he belonged and that the expression ‘voluntarily given up his membership’ is not synonymous with resignation and has wider connotation. In the said case, such an

inference had gone sufficient In G.

was drawn from the fact that the Member concerned, along with the group, to the Governor and reported division within the party. This was considered to justify the inference. Viswanathan v. The Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras,°

the Supreme Court observed that the act of voluntarily giving up membership of the political party may be either express or implied and when a person who has been thrown out or expelled from the party which set him up as a candidate and got elected joins

another party it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such Member. In Dr Mahachandra Prasad Singh v. The Hon‘ble Chairman, Bihar Legislative Council and Ors,’ a writ petition was filed under Article 32 of the Constitution for quashing the order of the Chairman of the Bihar Legislative Council holding that the petitioner was >The act omitted paragraph 3 dealing with split provisions from the Tenth Schedule to the Constitution and made consequential changes in paragraphs | and 2. * AIR 1994 SC 1558. > In Zachillu Khusantho v. State of Nagaland, (1993) Supp. (1) Gau. LR. 359 it was held that whether

a member has voluntarily given up membership of his political party is a matter of inference from admitted or proved circumstances.

¢ AIR 1996 SC 1060.

7 AIR 2005 SC 69.

92

Analysis of Case Laws

disqualified for being a Member of the House under paragraph 2(1)(a) of the Tenth Schedule read with Article 191(2) of the Constitution. The fundamental issue raised

in this case was whether the Chairman was correct in disqualifying the petitioner for

being a Member of the House under 2(1)(a) of the Tenth Schedule. The court held

that there was no error in the decision of the Chairman of the Legislative Council because, as per the facts, the Chairman held that the petitioner had been elected to the Legislative Council on the ticket of the Indian National Congress but he had contested the parliamentary election as an independent candidate. The issue finally came up before the Supreme Court in Rajendra Singh Rana and

Ors v. Swami Prasad Maurya and Ors.* In this case, the pertinent issue that arose before the court was whether the very act of giving a letter requesting the Governor to call upon the leader of the opposition to form a Government itself would amount to an act of voluntarily giving up of the membership of the party on whose ticket the said Member had got elected. On this issue, the court held that ‘the conduct of the Member’ will amount to voluntarily giving up of membership as reiterated in Ravi S. Naik and

Sanjay Bandenkar v. Union of India,’ and held that the very act of giving of a letter to the Governor requesting him to call the leader of the opposition party to form the

Government by itself would amount to voluntarily giving up the membership of their original political party within the meaning of paragraph 2 of Tenth Schedule. FINALITY OF THE SPEAKER’S DECISION ON THE QUESTION OF DISQUALIFICATION ON THE GROUND OF DEFECTION The Speaker is the sole and final authority to determine the issue of disqualification

of a Member on the ground of defection. Sub-paragraph (1) of paragraph 6 states that all the questions of disqualification under the act shall be referred to the Speaker/ Chairman and their decision shall be final.'° In Parkash Singh Badal and Ors v. Union of India,'' the Punjab and Haryana High Court has held that the word final’? should be taken to imply that no appeal, review and revision lies against the decision of the Speaker and it should not be taken to mean that it overrides the power of judicial

* (2007) 4 SCC 270. ” Supra note 4. '© Paragraph 6 of the Tenth Schedule also States that in case the Speaker/Chairman himself become subject to such disqualification, the matter shall be referred to such member of the House as the House may elect in this behalf and his decision shall be final. It is the authority of the Speaker to determine the issue of disqualification of a member on the ground of defection. '' AIR 1987 P and H 263. '2 In Union of India v. Jyoti Prakash, AIR 1971 SC 1093, the court observed that the use of the word ‘final’ in any order passed by any authority under a provision of the Constitution or other statutes has always been understood to imply that no appeal, revision or review lies against that order and not that it overrides the power of judicial review, either of the high court or of the Supreme Court under Article 226 or Article 136 of the Constitution.

Anti-defection Law (Tenth Schedule)

93

review of the high court or the Supreme Court under Articles 226 and 136. The majority of the Five-Judges Bench of the high court also invalidated the amendment contained in paragraph 7 of the Tenth Schedule as being invalid for non-compliance with the formality of ratification by one half of the States in terms of the proviso

Clause (2) of Article 368 of the Constitution. In Dr Kashinath Jalmi v. Speaker and

Ors,'? on the issue regarding the competence of the Speaker to review his decision, the Supreme Court observed that the Speaker has no power of review under the Tenth Schedule and an order of disqualification made by him under paragraph 6 is subject to correction only by judicial review. When the Speaker's decision under the Tenth Schedule called for a judicial determination in Kihota Hollohan v. Zachilhu and Ors,“ the Supreme Court held that paragraph 6(1) of the Tenth Schedule is valid to the extent it seeks or imparts

finality to the decision of the Speaker/Chairman. The court held that the concept of statutory finality embodied in paragraph 6(1) does not abrogate judicial review

under Articles 136, 226 and 227 insofar as infirmities in the order passed by the

Speaker/Chairman under paragraph 6 of the Tenth Schedule are based on violations of constitutional mandates malafides, non-compliance with the rules of natural justice and perversity. The Supreme Court struck down paragraph 7'° as unconstitutional in Kihota Hollohan on the ground that it affected the powers of judicial review of the Supreme Court and the high court under Articles 136, 226 and 227 of the Constitution. However, by a majority decision, the apex court upheld the validity of

the remaining paragraphs of the Tenth Schedule, holding them to be severable from the provisions of paragraph 7 of the Tenth Schedule. Again in Rajendra Singh Rana and Ors v. Swami Prasad Maurya and Ors'® the court examined an important question relating to the finality of the Speaker’s decision on the question of disqualification on the ground of defection. On the question whether the Speaker of the Legislative Assembly was justified in keeping the petition seeking the disqualification of 13 MLAs pending even while he proceeded to accept a case of a ‘split’ in the Bahujan Samaj Party (BSP), or whether the Speaker enjoys

‘full immunity’ in terms of paragraph 6(1) of the Tenth Schedule of the Constitution, the court held that the action of the Speaker goes against the constitutional scheme and that the failure of the Speaker to decide on the petition for disqualification at least simultaneously with the petition for recognition of a split is not a ‘procedural irregularity’ but it is a ‘jurisdictional irregularity’ which goes to the root of the matter and that it is subject to judicial review as reiterated in Kihota and Jagjit Singh.

' AIR 1993 SC 1873. '* AIR 1993 SC 412. '5 Paragraph 7 of the Tenth Schedule excludes the jurisdiction of all courts including the high courts and Supreme Court in respect of any matter connected with the disqualification of a member of a House under the Tenth Schedule. Supra note 14. '6 Supra note 8.

94

Analysis of Case Laws

MEANING OF THE WORD ‘DIRECTION’ AS USED IN PARAGRAPH 2(1)(B) OF THE TENTH SCHEDULE The importance of the term ‘direction’ as used in paragraph 2(1)(b)'” of the Tenth

Schedule was examined by the court in Parkash Singh Badal and Ors v. Union of

India. One of the issues raised in this case was whether paragraph 2(1)(b) of the Tenth

Schedule is violative of the provisions of Article 105 of the Constitution? By a majority opinion the high court held that ‘as far as the right of a Member under Article 105 is concerned it is not an absolute one and has been made subject to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament. The right of freedom of speech conferred on a Member of Parliament

can be regulated by making any constitutional provision, such as the Fifty-second (Amendment) Act. Therefore, the provisions of paragraph 2(b) cannot be termed as violative of the provisions of Article 105 of the Constitution.

Again in Kihota Hollohan v. Zachilhu and Ors,'* the Supreme Court held that the

words ‘any direction’ in paragraph 2(1)(b) require to be construed harmoniously with

other provisions and appropriately confined to the objects and purposes of the Tenth

Schedule. It was also observed that for this purpose the direction given by the political party to a Member belonging to it, the violation of which may entail disqualification under paragraph 2(1)(b), would have to be limited to a vote of motion of confidence

or no confidence in the Government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate. DISQUALIFICATION ON THE GROUND OF DEFECTION NOT TO APPLY IN CASE OF ‘SPLIT’ AND ‘MERGER’

The disqualification on the ground of defection does not apply in case of a ‘split’.!”

The Constitution (Ninety-first Amendment) Act, 2003 has omitted the provisions regarding a split from the Tenth Schedule. In Parkash Singh Badal and Ors v. Union of '’ Paragraph 2(1)(b) of the Tenth Schedule stipulates that a member is liable to be disqualified if he

votes or abstains from voting in the House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf. without obtaining prior permission of such political party, person or authority, and such voting or abstention has not been condoned of such political party, person or authority within fifteen days from the date of such voting or abstention. '* AIR 1993 SC 412. '? Paragraph 3 of the Tenth Schedule of the Constitution is in the nature ofa proviso to paragraph 2 wherein it is provided that disqualification will not arise ifa member belongs to a group representing a faction arising from a split in a party ifa group consist of not less than one third of the members of the legislature party concerned. According to paragraph 3, the Speaker of the respective House should see that a group has one third of the legislature party membership.

Anti-defection Law (Tenth Schedule)

95

India and Ors,”° the Supreme Court rejected the attack on the constitutional distinction between ‘defection’ and ‘split’ in eu of the view that court had to concur with the legislative wisdom and perception of the legislature to deal with certain crisis. The court

had no option but to go with the general opinion of the people. In Ravi S. Naik and

Sanjay Bandenkar v. Union of India’! a declaration signed by some MLAs belonging to a party declaring that they had formed a separate group, and produced during the course

of hearing before the Speaker, was held to have established the split and formation of the group. In this case, the court held that the burden to prove the requirements of paragraph 2 is on the person who claims that a Member has incurred the disqualification, and the burden to prove the requirements of paragraph 3 is on the Member who claims that there has been a split in his original political party and by virtue of the said split the disqualification under paragraph 2 is not attracted. In Mayawati v. Markandeya Chand and Ors” the court clarified that in case of split, wo conditions should apply (i) That a claim that the split in the original political party, resulting in the Constitution of a group, and (ii) That the group ought to be one-third of the Members of such a legislative party held that before a claim is made by a Member of the House under paragraph 3 of the Tenth Schedule, a split in the political party should have arisen, such a split must have caused its reaction in the legislative party also by the formation of a group consisting of not less than one third of the Members of the legislative party. Paragraph 4(2) of the Tenth Schedule provides that a party is deemed to have merged with another party if not less than two thirds of the Members of the Legislative party concerned agree to the merger.’ However, under paragraph 4(1)(b) of the Schedule the

faction that does not agree to the merger and opts to function as a separate group in Parliament or State Legislature is not disqualified on the ground of defection. EXEMPTION UNDER PARAGRAPH 5 OF THE TENTH SCHEDULE

One of the main issues raised in Dr Luis Proto Barbosa v. Union of India and Ors is related to the scope of exemption under paragraph 5 of the Tenth Schedule. In this case, the apex court, while examining the contentions raised before the high court, examined the scope of the exemptions under paragraph 5”° of the Tenth Schedule stating that the

20 AIR 1987 P and H 263. Also see Mian Bashir Ahmed v. JK, AIR 1987 J&K 149. 7! Supra note 6. 22 AIR 1998 SC 3340. ?3 As per paragraph 4(1) of the Tenth Schedule, the new political party formed after a merger is deemed to be the original political party of the members who have agreed to the merger, and they are deemed to belong to the new party from the date of such a merger, and disqualification on the ground of defection is not applicable in the case of a merger of cwo political parties. 4 AIR 1992 SC 1812.

25 Paragraph 5(a) of the Tenth Schedule stipulates that the provisions relating to disqualification due to defection are not applicable to the Speaker and the Deputy Speaker of the Lok Sabha or of the State Legislative Assembly, the Deputy Chairman of the Rajya Sabha and to the Chairman and Deputy Chairman of a State Legislative Council, if they resign from their party on being elected to

96

Analysis of Case Laws

appellants cannot avail the exemption and held that ‘the exemption would be available where the Speaker in view of the high office of the Speaker on a question of propriety and to sustain the image of impartiality of that office, resigns from the membership of the political party to which he might have belonged prior to his election as Speaker’. The exemption would not be available where the Speaker defects from the party to which he belonged and resigned from the office of the Speaker. In this case, the matter

arose out of certain proceedings initiated under the Tenth Schedule of the Constitution introduced

by

the

Constitution

(Fifty-second

Amendment)

Act,

1985,

for

the

disqualification of the appellant, Dr Luis Proto Barbosa, who was the then Speaker of the Goa Legislative Assembly on the ground that the appellant had voluntarily resigned from the membership of the political party otherwise than under circumstances which would attract the exemption under paragraph 5 of the Tenth Schedule. STATUS OF ‘UNATTACHED’ MEMBERS The Constitution (Fifty-second) Amendment Act, 1985, does not make a provision

for treating an expelled Member as unattached in the House. The question whether a Member of a political party who was expelled from the party can continue to belong

to that political party even if he was treated as unattached was considered by the court

in G. Viswanathan v. The Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras.”

The Supreme Court has held that the legal fiction enacted in the Explanation (a) to paragraph 2(1) of the Tenth Schedule must be given in full effect or otherwise the

expelled Member would escape from the rigour of the law, which was intended to curb the evil of defections which has polluted the democratic polity. The court concluded, that since the explanation to paragraph 2(1) of the Tenth Schedule provides that an elected Member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such Member, such a person so set up as a candidate and elected as a Member shall continue

to belong to that party. Even if such a Member is thrown out or expelled from the

party, for the purposes of the Tenth Schedule, he will not cease to be a Member of the

political party that had set him up as a candidate for the election. He will continue to

belong to that political party even if he is treated as ‘unattached’. But if he voluntarily joins another party, he subjects himself to disqualification. RULE-MAKING POWER OF THE CHAIRMAN/SPEAKER UNDER THE TENTH SCHEDULE

Paragraph 8 of the Tenth Schedule empowers the Chairman or Speaker ofa House to

make Rules for giving effect to the provisions of the Tenth Schedule.”” The Chairman/

the said office. Furthermore, they are not disqualified if they rejoin their political party after they cease to hold that office. *© Supra note 6. >? Paragraph 8 further stipulate that the rules made by the Chairman/Speaker of the House are required to be laid before the House for a total period of thirty days which may be comprised in

Anti-defection Law (Tenth Schedule)

97

Speaker may direct that any wilful contravention by any person to rules so made may

be dealt with in the same manner as breach of privilege of the House. In Ravi S. Naik and Sanjay Bandenkar v. Union of India,” the Supreme Court has held that the disqualification rules framed under paragraph 8 of the Tenth Schedule to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him by paragraph 6 of the Tenth Schedule are procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph 2 of paragraph 6 of the Tenth Schedule. The court further held that judicial review in respect of the order passed by the Speaker under (1) paragraph of paragraph 6 is confined to breaches of the constitutional mandate, hence the violation of the disqualification rules does not amount to the violation of constitutional mandates and it is not subjected to judicial review.

CONSTITUTIONAL VALIDITY OF TENTH SCHEDULE

The constitutional validity of the Tenth Schedule was challenged before the court in Parkash Singh Badal.” One of the submissions raised in this case was that Article 105 of the Constitution confers full freedom of speech and expression on a Member of Parliament and since this freedom is sought to be controlled by paragraph 2(b) of the Tenth Schedule, the same was ultra vires. It was also submitted that this provision being contrary to democratic principles, which formed a part of the basic structure

of the Constitution, and could not be lawfully amended. Both these submissions were rejected by the court which held that the right of a Member under Article 105 was not absolute and was subject to other provisions of the Constitution. Therefore,

paragraph 2(b) cannot be termed as violative of Article 105 of the Constitution. The court observed: The electors do not vote for a candidate; they usually vote for a political party. The party is voted to power not for carrying on the established system of collection of revenue and drawing on the consolidated funds but to put into practice its avowed

policies on all matters of national concern and to translate into action the aspirations of the electors of social and economic justice to the people at large.

The court held that paragraph 7 of the Tenth Schedule which makes the decision of the Speaker is final. However, that which takes away the jurisdiction of the court is ultra vires. Since this part of the law can be separated from the rest of it, the rest was held to be constitutionally valid. The issue again came up for consideration before the apex court in Kihota Hollohan’s case. In this case, the apex court had an occasion to one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproval by the House. 28 Supra note 4. 29 Supra note 20.

98

Analysis of Case Laws

consider the constitutional validity of the Constitution (Fifty-second) Amendment

Act, 1985, insofar as it seeks to introduce the Tenth Schedule in the Constitution.

The court, as per majority, upheld the constitutional validity of the Tenth Schedule, except paragraph 7, which was struck down for want of ratification by the States

as required by Article 368(2) of the Constitution. Again, the Supreme Court in

Ravi S. Naik and Sanjay Bandenkar v. Union of India finally decided that the decision of the Speaker regarding disqualification of a Member on the ground of defection is subject to the Tenth Schedule, which attaches finality to the decision of the Speaker, is valid. To sum up, the constitutional validity of the anti-defection law as contained

in the Tenth Schedule has been upheld by the Supreme Court in Kihota and approved in Ravi S. Naik.

MEANING

OF THE TERM

‘POLITICAL

PARTY’

UNDER

THE TENTH

SCHEDULE

In Mayawati v. Markandeya Chand and Ors* the court clarified that the term ‘political party in Clause (b) of sub-paragraph (1) of paragraph 2 stands for ‘original political party as mentioned in paragraph 3. In this case, the court did not accept the argument that the context in paragraph 2(1)(b) requires to equate ‘political party’ with ‘legislature

party’ even though the definition Clause in held that a reading of sub-paragraph (b) and the matter beyond doubt that the ‘political ‘original political party’ only and not to the

paragraph 1 reads differently. The court the explanation in paragraph 2(1) places party’ in sub-paragraph (b) refers to the legislative party.

CONCLUSION

A Member will be disqualified from the membership of a legislature to which he belongs if he is voluntarily giving up membership from his original political party.

Even though the Speaker/Chairman is the sole and final authority to determine the issue of disqualification of a Member on the ground of defection, if the action of the Speaker/Chairman goes against the constitutional scheme, then it is amenable to

judicial review. The Constitution (Ninety-first Amendment) Act, 2003, has omitted

the provisions regarding split from the Tenth Schedule. Regarding the competence of

the Speaker/Chairman to review his decision, the court observed that the Speaker/ Chairman has no power to review under the Tenth Schedule, and an order of disqualification made by him under paragraph 6 is subject to correction only by

judicial review. The constitutional validity of the Tenth Schedule, except paragraph 7, which bars the jurisdiction of the courts was upheld by the court.

© Supra note 22.

d Resignation, Removal and Vacation of Seat

Once a candidate is elected, he is expected to function as a Member of the House for the requisite term. However, a person after getting elected may for various reasons desire not to continue as a Member. The Constitution does not take away the right of an elected Member to resign his seat and nothing should compel an elected Member who has no desire to continue his membership to continue as such. The electorate has no right to compel an unwilling Member to continue or to be consulted before resignation.' Any such compulsion would amount to destruction of the principles of democracy. Hence, Article 101 of the Constitution contemplates resignation as a

mode in which the seat of a Member of Parliament falls vacant. Rule 240 of the Rules

of Procedures provides for procedure to resign seat in the House. Article 101 also specifies other circumstances when a seat of a Member may fall or be declared vacant.

Article 101, which provides for vacation of seats, reads as under: ARTICLE 101. VACATION OF SEATS

1. No person shall be a Member of both Houses of Parliament and provision shall be made by Parliament by law for the vacation by a person who is chosen a Member

of both Houses of his seat in one House or the other. 2. No person shall be a Member both of Parliament and of a House of the Legislature of a State and if a person is chosen a Member both of Parliament and of a House of the Legislature of a State, then, at the expiration of such period as may be specified in rules made by the President, that person’s seat in Parliament shall become vacant, unless he has previously resigned his seat in the legislature of the State.

3. Ifa Member of either House of Parliament

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

' Vikram Singh v. Sri Ram Ballabji Kasat, AIR 1995 MP 140.

Analysis of Case Laws

100

(b) resigns his seat by writing under his hand addressed to the Chairman or the

Speaker, as the case may be, and his resignation is accepted by the Chairman or the Speaker, as the case may be, his seat shall thereupon become vacant:

Provided that in the case of any resignation referred to in sub-clause (b), if from

information received or otherwise and after making such inquiry as he thinks fit, the Chairman or the Speaker, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation. If for a period of sixty days a Member of either House of Parliament is without

permission of the House absent from all meetings thereof, the House may declare his seat vacant: Provided that in computing the said period of sixty days no account shall be taken

of any period during which the House is prorogued or is adjourned for more than four consecutive days.

Article 190 of the Constitution contains corresponding provision for the State Legislatures with incidental changes.’

While

Articles

84

and

102

lay down

respectively

the qualifications

and

disqualifications relating to the eligibility ofa person to be a Member of Parliament,

Article 101 lays down the contingencies upon the happening of which a person

2 Article 190: Vacation of Seats

(1) (2)

(3)

No person shall be a member of both Houses of the Legislature ofa State and provision shall be made by the Legislature of the State by law for the vacation by a person who is chosen a member of both Houses of his seat in one House or the other. No person shall be a member of the Legislatures of two or more States specified in the First Schedule and if a person is chosen a member of the Legislatures of two or more such States, then, at the expiration of such period as may be specified in rules made by the President, that person's seat in the Legislatures of all such States shall become vacant, unless he has previously resigned his seat in the Legislatures of all but one of the States. Ifa member ofa House of the Legislature ofa State— (a) becomes subject to any of the disqualifications mentioned in Clause (1) or Clause (2) of Article 191; or (b) resigns his seat by writing under his hand addressed to the Speaker or

the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant:

[Provided that in the case of any resignation referred to in sub-clause (b), if from information

(4)

received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation.] If for a period of sixty days a member of a House of the Legislature ofa State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant: Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive

days.

Resignation, Removal and Vacation of Seat

101

shall have to vacate a seat in Parliament even though he had been duly elected being

qualified. The contingencies are:

1. Double membership of both the Houses of Parliament. 2. Double membership of a House of Parliament as well as of House of State Legislature. 3. Incurring any of the disqualifications specified in Article 102(3) subsequent to the election. 4. Resignation of membership. 5. Declaration by the House that a Member's seat has become vacant by reason of his absence from the meetings of the House, without permission for a period of 60 days. Similarly, the contingencies contemplated under Article 190 with reference to State Legislatures are: 1. Double membership of both Houses of Legislature of a State.

2. Membership of legislatures of two or more States specified in First Schedule. 3. Incurring any of the disqualifications in terms of Article 191 of the Constitution.

4. Resignation of membership. 5. Declaration by the House that a Member's seat has become vacant by reason of his absence from the meetings of the House without permission for period of 60 days. The provisions of Articles 101 and 190 of the Constitution are almost identical. Only

exception is that Article 101(2) deals with a situation where a person continues as a

Member of both Parliament and a House of the Legislature of a State. It also declares

that at the expiration of a period specified in the rules made by the President, his

seat in Parliament shall become vacant unless he has previously resigned his seat in the legislature of the State. Article 190(2), on the other hand, deals with a situation

where a person continues as a Member of the legislatures of two or more States. It also

declares that at the expiration of a period specified in the rules made by the President,

that person's seat in the legislatures of all such States shall become vacant unless he has previously resigned his seat in the legislatures of all but one of the States. Thus, the

person subjected to the provisions of Article 101(2) retains his membership of a State Legislature even in case of eventuality of non-submission of resignation to the State

Legislature within the time specified, whereas a person subjected to Article 190(2)

loses his membership of all the legislatures in case of such eventuality. Further, as per Article

101(3)(a)

and Article

190(3)(a), the seat of a Member

shall become vacant on becoming subject to any of the disqualifications mentioned in Article 102 or Article 191 of the Constitution. A Member’s seat shall also become

vacant in terms of Article 101(3)(b) or Article 190(3)(b), on acceptance of resignation

by the Chairman/Speaker tendered by such a Member. When

a Member is deemed to have vacated his seat in terms of Article 101(3)

(a) as soon as he incurs any of the disqualifications mentioned in Article 102, such

102

Analysis of Case Laws

retrospective vacation of seat in no manner affects the proceedings of the House in

which the disqualified Member had taken part by virtue of Article 122.

Article 101(4), as well as Article 190(4) cause a vacancy only if the House concerned

unseats the Member by declaring his seat vacant. A Member does not automatically vacate his seat by absence for any length of time.’

The judiciary has resolved several issues regarding the resignation and removal of Members as well as vacation of seats in the House. Many questions have come to the court seeking interpretation of various expressions used in these articles. The following are the important observations made by the judiciary in this regard. INTERFERENCE BY COURT Can a court interfere in the matter of acceptance or non-acceptance of resignation by

Speaker of a Member of Parliament? In matters which are exclusive to the business of Parliament or the State Legislature

and relate to the discharge of discretion or power vested in a Member of Parliament or an officer of it, the jurisdiction of the court to interfere has been curtailed under the

Constitution. Ina writ petition filed for non-acceptance of resignation of Shri Amitabh

Bachchan from the Allahabad constituency, the High Court of Allahabad opined that

a resignation contemplated under Article 101(3)(b) of the Constitution is a matter

between the Member of Parliament and the Speaker.* It is personal to the Member

of Parliament and the satisfaction in accepting the resignation is exclusive to the

discretion of the Speaker. To accept or not to accept a resignation of a Member of Parliament is the conduct of business with which the Speaker is vested with the sole

discretion. It is absolutely the Speaker’s prerogative. The submission of resignation by a Member of Parliament in terms of Article 101 of the Constitution of India is a unilateral act upon which no restraints can be put by a court. The court cannot

read anything in between the lines of Article 101 so as to suggest that a Member of

Parliament cannot resign or that in reference to a resignation, if submitted, the Speaker cannot consider its acceptance. Upon a resignation being submitted and forwarded to the Speaker, it is not the business of the court to intrude into a discretion which the

Constitution requires of the Speaker. It is entirely the business of Parliament alone upon which the court ought not to comment and there is no duality of jurisdiction to

the court to monitor or control the resignation. Hence, the court cannot exercise any writ jurisdiction in such a matter. RESIGNATION

OF PROSPECTIVE

MEMBERSHIP

One cannot resign prospective status which one may or may not get in the ordinary

course of events. Similarly, a Member cannot resign his/her prospective status before * Ansumali Majumdar and Ors v. The State of West Bengal and Anr, AIR 1952 Cal 632. * Panna Lal Agyan v. The Hon'ble Speaker, Sri Balram Jakgad and Ors, AIR 1988 All 167.

Resignation, Removal and Vacation of Seat

103

acquiring the membership in the House. Any letter of resignation written before securing the seat is not intended to be one of resigning the seat.” SPEAKER’S

RIGHT TO ENQUIRE

INTO THE GENUINENESS

OF A RESIGNATION

Has the Speaker any right to enquire into the genuineness of a resignation? Or, will mere receipt by the Speaker of a letter of resignation purporting to be from a Member cause the Member's seat vacant? The decisions in Thankamma v. The Hon'ble Speaker, Legislative Assembly, Travancore-Cochin State and An’ and Surat Singh Yadav v. Sudama Prasad Goswami and Anr,’ resolve these questions. Article 190(3) necessarily indicates that the letter of resignation must proceed from the Member and that the resignation must relate to a membership held by the person who sends the same. The mere receipt by the Speaker of a letter of resignation purporting to be from a Member will not cause that Member's seat to become vacant. It is open to the Speaker to enquire whether that is a genuine letter or a forged letter or one obtained by fraud or force and is only a void document.® It is the Speaker who has to take a preliminary decision regarding the genuineness of a letter of resignation. If a dispute arises in respect of genuineness or voluntary nature of the resignation, the Speaker is the proper authority whose satisfaction in that regard is necessary before the announcement of resignation is to be made by him to the House. Moreover, he being the person to whom the letter of resignation is to be sent, he would be in the best position to decide whether the letter was actually sent to

him, and, if sent, whether it was received by him, and, in case it was received by him, whether the writing received by him was of a genuine and voluntary nature.’ Further,

since the acceptance of the resignation is a matter of consideration for the Speaker, it is also the domain of the Speaker to enquire to his satisfaction whether it is voluntary and genuine.’ PROSPECTIVE RESIGNATION

Can the resignation be given effect to from a prospective date mentioned in the letter? Or, can acceptance of resignation be made prior to the effective date mentioned in the resignation letter? There is no specific provision for withdrawal of a prospective resignation in the Constitution. Hence, this issue came to be answered by the High Court of Kerala in > Thankamma v. The Hon‘ble Speaker, Legislative Assembly Travancore-Cochin and Ors, AIR 1952 Trav — Co 166. ° Id. ” AIR 1965 All 536. 8 Supra note 4. 9 Surat Singh Yadav v. Sudama Prasad Goswami and Anr, AJR 1965 All 536. '° Supra note 4.

104

Analysis of Case Laws

M. Kunjukrishnan Nadarv. The Hon'ble Speaker, Kerala Legislative Assembly, Trivandrum and Ors,'' wherein it was held that it is open to a Member of the legislature to tender his resignation on a prior date to take effect on a subsequent date specified therein.

The letter of resignation has then to be construed as been deposited with the Speaker on the earlier date to be given effect to only on the date specified by the Member therein. Till then it remains as a mute letter. The resignation can be given effect to from a prospective date mentioned in the letter. Article 190(3)(b) contains no express

prohibition for a Member to resign his seat from a future date.'* If the Member withdraws the letter of resignation before the date specified therein the withdrawal

would neutralise the former letter of resignation deposited with the Speaker. In other

words, the withdrawal nullifies the entrustment or deposit of the letter of resignation in the hands of the Speaker which must thereafter be found to have become von est in the eye of law. The court said thus:'°

... If that letter has died out even before it breathed effect and was become non est in law, the later letters cannot revive or resuscitate it. It then follows that since there was

no valid letter of resignation, the petitioner's seat in the Assembly has not become

vacant.

If the Speaker does not pay any head to the letter of withdrawal and the resignation is notified notwithstanding the withdrawal, the notification becomes nullity. MEANING OF THE EXPRESSION ‘ADDRESSED TO THE SPEAKER’ IN Articte 190(3) The word ‘addressed’ embraces within it the idea of the receipt of the letter of resignation by the Speaker.'’ The expression ‘addressed to the Speaker’ in Article 190(3) means conveyed to the Speaker and not mere naming of the Speaker in the heading of the letter. There must be a proper communication to the Speaker. The letter of resignation has to be sent to the Speaker and has to be received by him." MEANING

OF THE

EXPRESSION

‘THEREUPON’

“Thereupon means ‘upon that’, that is to say, in consequence of that. In the context

of Article 190(3) ‘shall thereupon become vacant’ means shall in consequence of the

resignation become vacant. It then follows that if the letter of resignation is expressly made to take effect on a specified day the seat would consequently become vacant on ' AIR 1964 Ker 194. '* Supra note 9. AIR 1964 Ker 194, paragraph 9 at 197. '* Supra note 9. '' M. Kunjukrishnan Nadar v. The Hon'ble Speaker, Kerala Legislative Assembly, Trivandrum, AIR 1964 Ker 194.

Resignation, Removal and Vacation of Seat

105

such specified day only, and not immediately on its receipt by the Speaker.'® It does not mean ‘immediately’ or ‘without delay or lapse of time’. The expression “his seat shall thereupon become vacant’ does not mean that the resignation becomes effective immediately at the moment of the affixation of the signature. Article 190(3)(b) does

not deal with question of time at all. In fact, the Article itself is quite silent on it.'” RESIGNATION

AND

LEAVE OF THE ELECTORATE

Does the resignation require the leave of the electorate? In Panna Lal Agyan and Ors v. Hon'ble Speaker, Sri Balram Jakgad and Ors, the question was answered negatively.’ The Members of Parliament/State Legislatures can resign their membership as and when they desire to do so. It is a matter personal to the concerned Member. Any

Member of the House can resign without taking the leave of the electorate. To hold otherwise, in the opinion of the Allahabad High Court, is highly impossible. Even the ethics or morality of resignation is not a matter to be enquired into.

DOES A FAILURE BY MEMBER/SPEAKER TO MAKE THE OATH UNDER CONSTITUTION /PSO FACTO RENDER HIS SEAT VACANT? CAN THE Court, IN SUCH AN ISSUE, ORDER A RESTRAINT PREVENTING THE MEMBER TO SIT IN THE House? In Anand Bihari Mishra v. Ram Sahay,'’ the petitioner contented that the Speaker of the Legislative Assembly has not taken an oath or affirmation in the manner prescribed

under Article 188 and hence he is not entitled to take his seat in the Assembly and

that therefore he cannot continue in the office of Speaker. The petitioner also prayed the court to hold the office of Speaker of the Assembly has fallen vacant. It was held

that if the oath under Article 188 is not taken, a Member does not cease to be a

Member. Failure to make the oath does not ipso facto render the seat vacant. If such a Member persists in taking his seat the House can initiate appropriate proceedings under Article 193 against the Member. Furthermore, it is open to the House to exclude

a Member who has not made an oath or afhrmation under Article 188 and to declare

his seat vacant under Article 190(4). On the other hand, as the sitting in the House of

a Member who has not taken an oath or affirmation does not render the proceedings

in the Legislature invalid and as such a Member is subject to a penalty, there can be no

ground for a court to make an order of restraint against the Member only to prevent

him from making himself liable to punishment.

16

Id.

'7 Supra note 9. '8 Supra note 4.

'9 AIR (39) 1952 Madhya Bharat 31.

106

Analysis of Case Laws

DOES ABSTENTION FROM VOTING AMOUNT TO BREACH OF OATH, WHICH REQUIRES INITIATION OF PROCEEDINGS FOR REMOVAL OF MEMBERSHIP FROM THE House?

In Joginder Singh Toor,” to initiate proceedings from the Lok Sabha on for removal of a Judge.

a petition was filed for directing the Speaker of the Lok Sabha against certain Members for their removal of membership account of abstention from voting on the notice ofa motion The High Court of Punjab and Haryana observed that the

Members are not duty bound to vote under the Constitution and as such their action of abstention is not contrary to the Constitution which would result in vacation of their seat. Once a Member is present in the House and when a notice of motion is

being considered it is always open to him either to vote for or against the motion or abstain form voting. Merely because a Member who has taken the oaths abstains from voting cannot be said to have acted against the oath. Mere abstention from voting does not call for any action for vacation of seat. WHETHER CENTRAL

A PERSON

APPOINTED

GOVERNMENT

AS PRIME

HAS TO VACATE

MINISTER

OR MINISTER

OF THE

HIS SEAT IN PARLIAMENT?

The petitioner in Janaganavadi Bharti v. Government Of India and Ors,’ contented

before the apex court that once a person is appointed as Prime Minister or Minister

in the Central Government, he has to vacate his seat in Parliament. The petition was dismissed by the court being devoid of any merit and the court has made no observations regarding the issue at all. VACANCY,

EXPULSION

AND

DISQUALIFICATION

Do the expressions ‘vacancy’, ‘expulsion’ and ‘disqualification’ denote the same meaning? In Raja Ram v. The Hon'ble Speaker, Lok Sabha and Ors,” it was held that the term

vacancy, expulsion and disqualification are clearly three different expressions and they

do not overlap. Disqualification strikes at the very root of the candidate's qualification and renders him unable to occupy a Member's seat. Expulsion, on the other hand, deals with a person who is otherwise qualified, but in the opinion of the House/legislature is unworthy of membership. While disqualification operates to prevent a candidate from re-election, expulsion occurs after the election of the Members and expulsion attaches on the Member no bar on re-election.”? But the term vacancy denotes that

© Joginder Singh Toor and Anrv. Union of India through Secretary, Law, Justice and Companies Affairs, New Delhi and Ors, AIR 1994 P&H 35. 212005 (5) Scale 298. 2 (2007) 3 SCC 184.

3 Also see Yeshwant Rao Meghwale v. Madhya Pradesh Legislative Assembly and Ors, AYR 1967

MP 95.

Resignation, Removal and Vacation of Seat

107

the Member cannot continue to hold membership. The reason may be anyone of the several possible reasons which prevent the Member from continuing his membership. It may be disqualification, expulsion, resignation, death, etc. CAN

EXPULSION

BE A GROUND

TO RENDER

A SEAT VACANT?

Articles 101 and 102 dealing with vacancy and disqualification are not exhaustive as to the ways in which termination of membership of a House can be effected. In Yeshwant Rao,” the Madhya Pradesh High Court held that expulsion of a Member would cause a vacancy in that Member’s seat. Expulsion of a Member is not inconsistent with

provisions relating to vacation of a seat. As per majority judgment in Raja Ram Pal,’ the provisions of Articles 101 and 102 regarding disqualification and consequent vacation of seat are not exhaustive. Upon expulsion, the seat of a Member is rendered vacant and so no specific recognition of the provision is necessary within the provision relating to vacancy. DOES SUSPENSION RENDER A SEAT VACANT?

The High Court of Punjab and Haryana, in Jai Singh Rathi and Ors v. State of Haryana,*°

observed that suspension did not create a vacancy of seat in the House. It only results

in absence from the services of the House.

COMPETENT

AUTHORITY

TO

REMOVE

MEMBERS

Is there any competent authority to remove the Members of Parliament/State Legislature from their office? In Habibullah Khan v. State of Orissa,” the Orissa High Court noted that there is no

authority competent to remove an MLA from the House. The court further observed

that the Governor is not the competent authority to do so. The same question came

before the Supreme Court in P V. Narsimha Rao v. State (CBI/SPE).”*® The court had to

answer the question as to who is competent to remove a Member of Parliament and to

grant sanction for his criminal prosecution under Section 19(1) of the Prevention of

Corruption Act, 1988. It was argued that an authority competent to remove a public servant necessarily contemplated an authority competent to appoint him. There was no authority competent to appoint a Member of Parliament and, therefore, there was no authority that could remove him. The Supreme Court of India held that there is no

24 ?> 26 27 28

Td. Raja Ram Pal. Union of India, (2007) 3 SCC 184. AIR 1970 P&H 379. (1993) Cr.LJ. 3604. ATR 1998 SC 2120: (1998) 4 SCC 626.

108

Analysis of Case Laws

authority competent to remove a Member of Parliament and hence none competent to grant sanction for his prosecution under Section 19(1) of the 1988 Act. CONCLUSION Resignation contemplated under Articles 101(3)(b) and 190(3)(b) of the Constitution

is a matter between the Member of Parliament and the Speaker. It is not the business of the court to direct the Speaker to accept or not to accept a resignation. The Speaker has the right to enquire into the genuineness of a resignation before its acceptance. To be effective, the resignation must be received by the Speaker in the proper form. The

resignation can be given effect to from a prospective date mentioned in the letter. It is open to the Member to withdraw his resignation by tendering a letter to that effect to the Speaker/Chairman before the acceptance of resignation. However, a retrospective resignation is inoperative. A Member, to resign, does not require the leave of the electorate. Failure to make the oath does not ipso facto render a Member's seat vacant. Similarly, abstention from voting does not amount to breach of oath which requires

initiation of proceedings for removal of membership from the House. Further, the provisions of Articles 101 and 102 regarding disqualification and consequent vacation of seat are not exhaustive. Expulsion can be a ground to render a seat vacant.

10 Oath or Affirmation

A Member of Parliament and time, required to take an oath of a Member after his election prescribed oath or affirmation,

State Legislature is, before taking his seat for the first or make an affirmation. Taking of oath is the first act to the House. Until he has made and subscribed the a Member is not entitled to sit and vote or to perform

any other function in the House or in any Committee of which he may be named as

a Member.

Article 99 states, every Member

of either House of Parliament shall, before

taking his seat, make and subscribe before the President or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. Article 188 is the corresponding provision for the State Legislature.' Failure to comply with the above requirements entails penal consequences

of Articles 104 and 193 respectively.?, However, by virtue of Article 100(2) or, as the case may be, 189(2), if a Member casts a vote before subscribing to an oath or

affirmation, the same would not render the proceedings in the House invalid.

In an ordinary sense, an oath is a form of attestation by which a person signifies that

he is bound in conscience to perform an act faithfully and truthfully. The underlying

purpose of the oath is that the person concerned must give an undertaking to bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of ' Article 188. Oath or affirmation by members. Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. ? In Pashupati Nath Sukul and Ors v. Nem Chandra Jain and Ors, AIR 1984 SC 399, it was observed that the penalty for sitting in the House during any debate or voting, without having taken oath is very stringent. The words ‘sitting and voting as a member’ imply that the penalty under the Article will be incurred only if the House has been summoned by the President under Article 85(1) and the member sits and votes at a meeting of the House which has been so summoned or at an adjournment meeting thereof.

110

Analysis of Case Laws

the nation.’ Similarly, an affirmation in lieu of an oath binds a person to live by what

he undertakes.‘

The following are the main issues before the courts seeking clarification regarding

various aspects of these provisions.

REQUIREMENTS OF OATH UNDER ArTICLE 188 Under Article 188, a duty is cast on every Member of the Legislative Assembly or Legislative Council of the State on pain of penalties provided under Article 193, before taking his seat, to make and subscribe an oath or affirmation according to the form set

out for the purpose in the Schedule III before the Governor or some person appointed in that behalf by him. Article 188 requires (i) that the writing of the oath or affirmation

shall be according to the form set out for the purpose in Schedule III; (ii) that the Member shall make and subscribe to the oath or affirmation which means that he

shall read the declaration and sign under the writing as a token of acceptance; and (iii) making and subscribing shall be before the Governor or some person appointed

in that behalf by him, which means that somebody should witness the oath being

made and subscribed.’ The analysing of form set out in Schedule III shows that the

oath or affirmation shall contain words to the effect (i) that the Member shall bear true faith and allegiance to the Constitution of India as by law established; (ii) that he shall uphold the sovereignty and integrity of India; and (iit) that he will faithfully discharge

the duty upon which he was about to enter. The inclusion of these three declarations in the oath or affirmation and the signing of the same in acceptance thereof is the most important and substantial part of the requirement of Article 188. Subscribing to the oath before the Governor or a particular person is required only for the purpose of witnessing the oath being made, so that it could be put as a record.° ADMINISTRATION OF OATH

Is the administration of an oath a must under Article 188? It is enough if the declaration is read by the Member and it is not necessary to administer the oath by any authority to the Member. Wherever the Constitution

required that the oath or affirmation has to be administered, it specifically mentions;

} Virjiram Sutaria v. Nathalal Premji Bhavadia, AIR 1970 SC 765. * 2003 (3) KLT 119. >In Purshottam Lal Sharma v. State of Rajasthan and Ors, AIR 1979 Raj 18 it was observed by the High Court of Rajasthan that when the Governor appoints someone before whom an oath has to be subscribed, the oath cannot become incomplete or illegal merely because of the reason that the order which authenticated the person to make and subscribe the oath omitted some words from it. In such cases, it is no fault of the member taking the seat that the order of appointment was not strictly in accordance with the letter of the Constitution. ° G. Vasantha Pai v. C. K. Ramaswamy and Anr, AIR 1978 Mad. 342.

Oath or Affirmation

Hit

for instance, Article 75(4) requires the oath of office and of secrecy to be administered

by the President to a minister before he enters upon his office. Similarly, Article 164(3) requires the Governor to administer the oath of office and of secrecy in the form set out to every minister of the State before he enters upon his office. Such a requirement of administration of oath is not necessary where a person makes or subscribes to the oath or affirmation under Article 188.’ CAN A SPEAKER SUBSCRIBE AN OATH ON BEHALF OF THE GOVERNOR UNDER Article 1882

The Governor can delegate his power to the Speaker and the Speaker in that capacity can administer oath to the Members. Any person appointed by the Governor—maybe the Speaker or any Member of the House or any person—during the administration of oath, acts merely as a delegate of the Governor of the State. However, by such appointment he does not either become an Officer or a Member of Legislature of a State.® APPLICABILITY OF ARTICLE 188 TO INTERIM LEGISLATURES

What is the applicability of Article 188 in respect of legislatures constituted before the commencement of the Constitution? Anand Bihari Mishra v. Ram Sahay’ presented this issue for consideration before the Gwalior Bench of the Madhya Bharat High Court. The court held that if the Members or the Speaker had taken oath in accordance with the provisions of the Interim Legislature Act, they can validly continue to be Members or Speaker of the said Assembly even after the commencement of the Constitution. Article 188 is essentially meant to apply to legislatures constituted under the Constitution. It does not apply to old legislatures continued by virtue of Articles 372 and 385. DOEs RENDER

A FAILURE

BY MEMBER/ SPEAKER

TO MAKE

THE OATH

IPSO FACTO

HIS SEAT VACANT?

If the oath under Article 188 is not taken, a Member does not cease to be a Member.

Failure to make the oath does not ipso facto render the seat vacant. It is open to

the House to exclude a Member who has not made an oath or affirmation under Article 188 and to declare his seat vacant under Article 190(4). On the other hand,

if such a Member persists in taking his seat, the House can initiate appropriate

proceedings under Article 193 against the Member.'®

” Id.

8 Durga Das Rathore v. The State of Bihar and Ors, 1991 (1) BLJR 495. ° AIR (39) 1952 Madhya Bharat 31.

10 Id.

112

Analysis of Case Laws

APPLICABILITY OF ARTICLE 212 Is the question of ‘validity of oath’ immune from challenge by virtue of the provision

contained in Article 212 of the Constitution?

The immunity under Article 212 does not mean that the court cannot examine the issue of validity of the oath. The courts can intervene whenever and wherever there

is a violation of the Constitution.'' Officers and Members ofa legislature cannot claim immunity when they exercise their power in a manner opposed to the Constitution.

The power conferred on courts by Articles 32 or 226 of the Constitution is not subject

to Article 212. Therefore, when a citizen approaches the court with a complaint that

his constitutional rights are being invaded, the court has the power to look into it even if the complaint pertains to a matter covered by Article 212.'? Further, the constitutional immunity begins only after the constitutional requirement of taking an oath in the prescribed form is shown to have been fulfilled. Only thereafter, the

Member is entitled to the freedom of speech and vote. With regard to the immunity

of the Speaker in respect of matters relating to oath, since administration of oath is not

a function exercised by the Speaker in his official capacity and taking of oath under

Article 188 is not an item in the conduct of business mentioned in Article 212, it will

not give him any special prerogative to seek shelter under Article 212.'° Moreover,

making and subscribing oath before the Governor or some person appointed in that

behalf by him is not a proceeding of the legislature and hence not immune from

judicial scrutiny."

QUESTION OF LITERACY Whether

literacy or alleged standard

thereof is inherent

in the requirement

to

‘make and subscribe’ the oath or affirmation postulated in Articles 84 and 99 of the Constitution

or in the transaction

of “Business of Parliament’,

be qualified to be Member of either House of Parliament? As a

for a person

to

corollary, is there a

requirement as indicated for membership of State Legislature in terms of Articles 173 and 188 of the Constitution of India? This interesting question came to be answered in Baljeet Singh v. Election Commission of India and Ors.'” The Full Bench of the Delhi High Court observed that the Constituent Assembly had consciously not kept literacy as a qualification for a candidate to be chosen as a Member of legislature and it was left to Parliament or the State Legislature to prescribe a qualification if they felt that '' Haridasan Palayil v. The Speaker, Kerala Legislative Assembly and Ors, AIR 2003

(3) KLT 119.

Ker 328: 2003

'2 State of Kerala v. R. Sudarsana Babu, 1983 KLT 339. '> Thankamma v. The Hon'ble Speaker, Legislative Assembly, Travancore-Cochin State, AIR 1952 Trav-

Cochin 166. '’ Durga Das Rathore v. The State of Bihar and Ors, 1991

'S AJR 2001 Delhi 1.

(1) BLJR 495.

Oath or Affirmation

113

it was necessary for the person to be elected as a Member of Parliament or the State Legislature. In the opinion of the court, if there is no requirement of literacy at the time of filing the nomination of the candidate, there is no requirement of literacy at the time of taking the oath too. Though the court observed that the best available men should be chosen as the people’s representative for proper governance of the country, the court was not hesitant to hold that ‘it is not for the Courts to decide how they

can be said to be equipped. Role of Courts is limited to questions of qualification or disqualification of candidates. Qualification or otherwise in the background of educational qualification is not a field where Courts have any role to play.’ Is ARTICLE 164(2) OPERATIVE IF MEMBERS OF THE LEGISLATIVE ASSEMBLY DO NOT TAKE OATH OR AFFIRMATION UNDER ARTICLE 188, AND THE SPEAKER IS NOT APPOINTED UNDER ARTICLE 178 OF THE CONSTITUTION? In Social Action for People’s Rights and Anr v. State of Uttar Pradesh,'® the High Court of Allahabad examined this question and answered that where Members of the Legislative Assembly had not taken an oath or affirmation under Article 188 of the Constitution of India; where the Speaker had not been appointed under Article 178 of the Constitution of India; and where the Legislative Assembly was not in a position to transact its business under Article 189 of the Constitution of India, Article 164(2)

would not be operational.

CAN A NON-MEMBER OF PARLIAMENT SIT IN PARLIAMENT WITHOUT TAKING OATH UNDER ARTICLE 99 AS A MEMBER OF COUNCIL OF MINISTERS IN THE CENTRAL CABINET?

When a non-member of either House of Parliament gets inducted into the Central Cabinet, he need not subscribe an oath under Article 99. He would sit in Parliament not as a Member of Parliament but as a Member of the Council of Ministers

discharging constitutional obligation under Article 75(3). The term ‘before taking

his seat’ occurring in Article 99 signifies ‘before taking his seat as a Member of the House’. Similarly, the penalty under Article 104 is incurred when a person who has not subscribed to the oath referred to in Article 99 sits or votes ‘as a Member of either House of Parliament’. The penalty is not incurred when a person sits in the House as a Member of the Council of Ministers in order to discharge the Constitutional

obligation cast under Article 75(3). Article 99 needs to be complied only when he will

be elected to either House of Parliament or nominated to the Rajya Sabha.!”

'6 AIR 2003 All 250. '7 Har Sharan Varma v. Union of India and Ors, AIR 1987 All 294.

114

Analysis of Case Laws

WHETHER A PERSON ELECTED AS A MEMBER OF A LEGISLATIVE ASSEMBLY BUT WHO HAS NOT MADE AND SUBSCRIBED THE PRESCRIBED OATH OR AFFIRMATION AS REQUIRED BY ARTICLE 188 OF THE CONSTITUTION CAN

VALIDLY PROPOSE A PERSON AS A CANDIDATE AT AN ELECTION HELD FOR FILLING A SEAT IN THE RAJYA SABHAZ An elected Member who had not taken oath but whose name appears in notification

published under Section 73 of the Representation of the People Act, 1951, can take

part in all non-legislative activities of elected Members. Such a Member has even the right of voting at an election to the Rajya Sabha. Making of an oath or affirmation is not a condition precedent for being eligible to act as a proposer ofa valid nomination for election to the Rajya Sabha.'*

CAN

A MEMBER

TAKE OATH

IN THE

NAME

OF ALLAH?

The word ‘God’ in Form VI B of the Third Schedule is a relative expression as far as the person who takes oath. Allah is the Arabic term for ‘God’ in Abrahamic regions,

and is the main term for God in Islam. Or, Allah is a proper noun for God. Hence, it can be construed that the word ‘God’ in Form VII B takes into account Allah also. ‘[The] Muslim community when use their mother tongue—Arabic—they use the word “Allah” for “god”. Hence, when a person belonging to [the] Muslim community

takes oath under Article 188 in the name of Allah he is not violating any constitutional provisions.’'”

WHETHER

SUBSCRIBING TO THE OATH IN THE NAME OF ‘SREE NARAYAN

GuRvU’ AT THE TIME OF BEING SWORN

IN AS MEMBER OF LEGISLATURE

CONFORMS TO THE PROVISIONS OF THE CONSTITUTION OF INDIA?

In Haridasan Palayil v. The Speaker, Kerala Legislative Assembly and Ors,® the High

Court of Kerala held that since the Constitution lays down the form of oath one can

either subscribe to the oath, or make an affirmation. In case, the person chooses to take the oath he has to swear in the name of ‘God’ and none else. The Constitution does not permit any deviation or variation. A deviation is not a mere irregularity; it is a manifest illegality. Every person has to conform to the ‘form’ as prescribed. Otherwise,

it has to be assumed that he has not taken the oath. The purpose of prescribing the form is to induce a sense of subordination to the Constitution in men of all faiths. As

per the court, in India, when we have countless versions of God, any variation was to

'* Pashupati Nath Sukul and Ors v. Nem Chandra Jain and Ors, AIR 1984 SC 399. Also, Madhukar Jetly v. Union of India (VOD) and Ors, 1997 (11) SCC II.

'"° Madhu Parimala v. Kerala Legislative Assembly and Ors., AIR 2007 Ker. 18.

20 AIR 2003 Ker 328: 2003 (3) KLT

119.

Oath or Affirmation

11S

be allowed, there would be no end to the variations. Hence, according to the court,

the oath taken in name of “Sree Narayan Guru’ does not conform to the constitutional mandate.

Is A MEMBER OF PARLIAMENT IN CUSTODY ENTITLED TO TAKE OATH FROM custTopy?

The Supreme Court has answered this issue in the affirmative. For instance, in Rajesh Ranjan v. State of Bihar and Anr,”' when the person elected to Parliament was in custody and was not in a position to take the oath and was likely to lose his membership, the court directed the State Government of Bihar to produce the elected person before Parliament from the police station for handing over to the Lok Sabha Secretariat so that he could be taken before the Speaker or designated officer to take an oath. CONCLUSION

It is the constitutional mandate that every Member of Parliament or State Legislature

shall, before taking the seat, make and subscribe an oath or affirmation before the

President/Governor or some person appointed in that behalf by him. Correspondingly, there is an obligation on the part of the President/Governor or some person appointed in that behalf by him to permit every such Member to make and subscribe an oath or affirmation before him. The Members need to strictly follow the form of oath prescribed by the Constitution And neither educational qualification nor literacy is a condition for subscribing to the oath. If any authority refuses to facilitate oath of a returned candidate, he is entitled for a writ of mandamus. A person is entitled to subscribe to the oath even from custody. Making and subscribing oath before the President/Governor or some person appointed in that behalf by him is not a proceeding of Parliament/legislature and hence it is not immune from judicial scrutiny.

71 (2000) 9 SCC 222.

1] Voting in the House

Parliamentary democracy envisages that matters involving implementation of policies

of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. Thus, debate and expression of different points of view serve an essential and healthy purpose in the functioning of a parliamentary democracy. At

times, such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House. Article 100 deals with the procedure for voting in Parliament.’ The analogous provision dealing with the procedure for voting in the State Legislatures is Article 189. The only difference between Article 100 and Article 189 is that in the former, the quorum to constitute a meeting is one tenth of the total number of Members of the House and in the latter it is ten Members or one tenth of the total number of Members of the House, whichever is higher. ' Kihotto Hollohan v. Zachilhu and Ors, 1992 Supp (2) SCC 651.

? Article 100. Voting in Houses, power of Houses to act notwithstanding vacancies and quorum. (1)

(2)

(3) (4)

Save as otherwise provided in this Constitution, all questions at any sitting of either House or

joint sitting of the Houses shall be determined by a majority of votes of the members present and voting, other than the Speaker or person acting as Chairman or Speaker. The Chairman or Speaker, or person acting as such, shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes. Either House of Parliament shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings in Parliament shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do sat or voted or otherwise took part in the proceedings. Until Parliament by law otherwise provides, the quorum to constitute a meeting of either House of Parliament shall be one-tenth of the total number of members of the House. If at any time during a meeting ofa House there is no quorum, it shall be the duty of the Chairman or Speaker, or person acting as such, either to adjourn the House or to suspend the meeting until there is a quorum.

Voting in the House

117

Article 100(1) lays down that except in the cases where the Constitution provides

otherwise, all questions at any sitting of either House or at any joint sitting shall be

determined by a majority of votes of the Members present and voting on the question. The majority implied here is a simple majority. The constitutional provisions which

mandate a special majority are Articles 61(2)(b), 61(4); 67 Proviso (b), 90(c), 94(c), 108(4) and 368.

Is THERE A RIGHT TO VOTE?

In K. Anandan Nambiar v. Chief Secretary to Government of Madras,’ the petitioner was a Member of Parliament and he was detained by an order passed under the Defence of India Rules. The petitioner contended that the said detention prevented him from attending sessions of Parliament and casting his vote. This, said the petitioner, was a

violation of his constitutional rights under Article 100(1) as well as Articles 105(1) and (2). The court said that Article 100(1) only laid down the manner in which the

questions will be determined in the House and in no way gave rise to a fundamental

right or a constitutional right. As far as Articles 105(1) and (2) are concerned though

the said provisions gave absolute freedom of speech to the Members inside the four walls of the House; they could not be claimed as a constitutional right or a fundamental right in a court of law. This freedom of speech is only available to a Member when he attends the session and if he is lawfully detained and thereby prevented from attending the session, he could not complain about the same. In Smt. Indira Nehru Gandhi v. Shri Raj Narain,‘ the court added that the House is the absolute master of its sessions. It could secure the attendance of a Member even if he was lawfully detained using its powers and privileges. EFFECT OF NON-VOTING

OF MEMBERS

ON

A LEGISLATION

OR AMENDMENT

In Smt. Indira Nehru Gandhi v. Shri Raj Narain, the Supreme Court had to decide

whether the detention (allegedly unlawful) of Members would lead to invalidation of

proceedings and subsequently of constitutional amendments passed in the session. The court said that detention, lawful or otherwise, was done by external agencies. The proceedings of the House cannot be held to ransom by detentions done by external agencies. Thus, merely because some Members were detained and were not allowed to cast their vote in some parliamentary proceeding, does not invalidate the proceeding. VOTING

DONE

IN HOUSE

AND

IMMUNITY

FROM

JUDICIAL

PROCEEDINGS

Article 105(2) inter alia provides that no Member shall be liable to any proceedings

in any court in respect of any vote given by him in Parliament or any Committee

> AIR 1966 SC 657. * AIR 1975 SC 2299, > Id.

118

Analysis of Case Laws

thereof. Article 194(2), which provides for the power and privileges of the legislatures contains similar provisions. That is, the Members of Parliament and State Legislatures

have been given protection against any proceedings in respect to any vote given by

them in Parliament.

In 2 V. Narasimha Rao v. State (CBI),° the majority was of the view that the bribetakers stand on a different footing. It was observed that the bribe-taker Members

of Parliament who have voted in Parliament against the no-confidence motion are entitled to the protection of Article 105(2) and are not answerable to any court of law

for alleged conspiracy and agreement. Broadly interpreted, Article 105(2) protects a

Member of Parliament against proceedings in court that relate to, or concern, or have

a connection or nexus with anything said, or a vote given by him in Parliament. The

court was of the view that the expression ‘in respect of’ must receive a broad meaning. CONCLUSION

There is no constitutional or fundamental right for a Member to vote in the House of legislature. But Members are protected from judicial proceedings in respect of any act done in connection with a vote actually cast in the House. The fact that a Member or some Members were prevented from voting does not invalidate the proceedings of the House. This does not, in any way, change or affect the requirements of majority

and quorum.

° AIR 1998 SC 2120: (1998) 4 SCC 626.

12 Introduction and Passing of Bills

Articles 107 and 196 of the Constitution deal with the provisions relating to introduction and passing of Bills, respectively, in Parliament and the State Legislatures. The provisions contained in both the provisions are more or less identical. They read

as follows:

ArTICLE 107. PROVISIONS AS TO INTRODUCTION AND PASSING OF BILLS 1. Subject to the provisions of Articles 109 and 117 with respect to Money Bills and other Financial Bills, a Bill may originate in either House of Parliament.

2. Subject to the provisions of Articles 108 and 109, a Bill shall not be deemed to have been passed by the Houses of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses.

3. A Bill pending in Parliament shall not lapse by reason of the prorogation of the Houses.

4. A Bill pending in the Council of States which has not been passed by the House of the People shall not lapse on dissolution of the House of the People. 5. A Bill which is pending in the House of the People, or which having been passed by the House of the People is pending in the Council of States, shall, subject to the provisions of Article 108, lapse on a dissolution of the House of the People. ARTICLE 196. PROVISIONS AS TO INTRODUCTION AND PASSING OF BILLS 1. Subject to the provisions of Articles 198 and 207 with respect to Money Bills and

other Financial Bills, a Bill may originate in either House of the Legislature of a State which has a Legislative Council. 2. Subject to the provisions of Articles 197 and 198, a Bill shall not be deemed to have been passed by the Houses of the legislature of a State having a Legislative

[20

Analysis of Case Laws

Council unless it has been agreed to by both Houses, either without amendment

or with such amendments only as are agreed to by both Houses.

3. A Bill pending in the legislature of a State shall not lapse by reason of the prorogation of the House or Houses thereof.

4. A Bill pending in the Legislative Council of a State which has not been passed by the Legislative Assembly shall not lapse on dissolution of the Assembly.

5. A Bill which is pending in the Legislative Assembly of a State, or which having been passed by the Legislative Assembly is pending in the Legislative Council,

shall lapse on dissolution of the Assembly.

A plain reading of these two provisions suggests that a Bill, other than Money Bills and Financial Bills, may originate in either House of Parliament or, as the case may be, either House of Legislature ofa State, which has a Legislative Council. Clause (1)

of both the articles confers the right to introduce Bills in both Houses. As regards the Money Bills, by virtue of Article 109 or, as the case may be, Article 198, only in

the House of the People of Parliament or, as the case may be, Legislative Assembly of the State Legislature such Bills can be introduced. The role of Council of States in Parliament and Legislative Council of the State Legislature, as regards the Money Bills, are very much minimal in our constitutional scheme.' Further, as far as Financial

Bills are concerned, by virtue of Articles 117 or 207, they can only be introduced in the House of the People or, as the case may be, Legislative Assembly that to only on

the recommendations of the President or, as the case may be, Governor of the State concerned.

Clause (2) of Article 107 mandates that every Bill needs agreement in both Houses of Parliament. So does Clause (2) of Article 196 with reference to the legislature ofa

State which has a Legislative Council. In cases where there is a disagreement between

the Houses over any provision in the proposed Bill, the Bill shall not be deemed to have

been passed by Houses of Parliament or, as the case may be, legislature of a State. However, there are exceptions provided under the constitutional scheme to this rule. As regards Clause (2) of Article 107, there are two exceptions provided in the

Constitution. They are as follows:

1. Money Bill: As stated earlier, a Money Bill shall not be introduced in the Council of

States by virtue of Article 109(1). However, once the Money Bill has been passed by the House it shall be transmitted to the Council of States for its recommendation and the Council of States is bound to return the Bill to the House of the People

within fourteen days with its recommendations. Thereupon, the House of the People exercises discretion either to accept or reject such recommendations.’ Even

when the House of the People rejects the recommendations so made, the Bill is deemed, by virtue of Article 109(4), to have been passed by both Houses in the

form in which it was passed by the House of the People. In cases where the Bill

' Refer to Articles 109 and 198 for the detailed scheme.

* Article 109(2).

Introduction and Passing of Bills

121

transmitted to the Council of States is not returned to the House of the People within fourteen days, the Bill is deemed to have been passed by both the Houses on the expiration of the said period.

2. Joint Sitting: Joint sitting of both Houses of Parliament, as provided under Article

108, provides an alternative avenue to pass the Bill which could not have been

passed in terms of Article 107(2). Article 108 provides that in case where after a

Bill has been passed by one House and transmitted to the other House—(i) the

Bill is rejected by the other House; or (ii) the Houses have finally disagreed as to the amendments to be made in the Bill; or (iii) after the lapse of six months from

the date of reception of the Bill by the other Houses without the Bill being passed

by it, the President, unless the Bill has elapsed in terms of Article 107(5), may

notify his intention to summon both the Houses to meet in a joint sitting for the purpose of deliberating and voting on the Bill. If, at the joint sitting of the two Houses, the Bill is passed by a majority of the total number of Members of both Houses present and voting, it shall be deemed for the purpose of this Constitution to have been passed by both Houses. As regards Clause (2) of Article 196, there are two exceptions provided. They are as follows: 1. Article 198 of the Constitution provides scheme analogous to the one prescribed under Article

Legislature.

109

(discussed above)

for passing of a Money

Bill in the State

2. Unlike Parliament, there is no provision in the Constitution providing for a joint

sitting of the Houses of Legislature of a State which has a Legislative Council. However, Article 197 provides an alternative scheme for passing of Bills that could not have been passed in terms of Clause (2) of Article 196 of the Constitution.

Article 197 imposes restrictions on powers of the Legislative Council, even in cases of Bills other than Money Bills. It provides that, if the Bill transmitted to the Legislative Council—(i)

is rejected by the Council; or (ii) the Council

fails to pass the Bill within three months from the date on which the Bill is laid before it; or (iii) the Bill is passed by the Council with amendments to which

the Legislative Assembly does not agree, the Legislative Assembly may, subject to

the rules regulating its procedure, pass the Bill again in the same or subsequent session with or without such amendments if any, as have been made, suggested or agreed to by the Legislative Council and then transmit the Bill so passed again to the Legislative Council. When the Bill is so passed for the second time and is transmitted to the Legislative Council, the Bill shall be deemed to have been passed by both the Houses in the form in which it was passed by the Legislative Assembly for the second time even if the Council—(z) rejects the Bill so transmitted to it for the second time; or (#2) on expiration of one month from the date on which the

Bill is laid before the Council for the second time, if the Council does not pass it before the expiration of the said period; or (#2) passes the Bill with amendments to which the Legislative Assembly does not agree.

122

Analysis of Case Laws

Though the procedure prescribed under Article 197 appears to be time consuming,

the same would allow the Legislative Assembly to pass the Bill notwithstanding the

disagreement of Legislative Council, significant.

thus, rendering the Legislative Council

less

Clause (3) of both Articles 107 and 196 are identical. They provide that the Bill

pending in Parliament or, as the case may be, legislature ofa State shall not lapse by reason of prorogation of the Houses.

Clause (4) of Article 107 provides that a Bill pending in the Council of States,

which has not been passed by the House of the People, shall not lapse on dissolution

of the House of the People. Clause (4) of Article 196 contains an identical provision

with reference to the legislature ofa State.

By virtue of Clause (5) of Article 107, a Bill which is pending in the House of the People or which having been passed by the House of the People is pending in the Council of States, shall lapse on dissolution of the House of the People unless the President had notified his intention to summon both Houses to meet in a joint sitting

before such dissolution. This is because, by virtue of Article 108(5), a joint sitting

may be held notwithstanding the fact that dissolution of the House of the People

intervened since the President notified his intention to summon the House to meet.

Clause (5) of Article 196 contained an identical provision with reference to ‘the State Legislatures, however, with no exception since there is no provision for joint sitting of

the legislature of a State.

On an analysis of the provisions of Articles 107 and 196 of the Constitution, the

following points become clear:

1. There is no express provision referring to the consequence of dissolution of the House of the People on a Bill pending before it at the time of its dissolution,

which had been originated and passed by the Council of States. Provision dealing with the legislature ofa State, i.e. Article 196 has also not dealt with this

aspect. However, in view of the generality of the opening words of Clause (5) of

Article 107 or, as the case may be, Clause (5) of Article 196, such Bills are subject to lapse. Common Clause (5) of both Articles 105 and 196 unequivocally provide

that Bills pending in the House of the People or, as the case may be, Legislative Assembly of a State are subject to lapse irrespective of whether such Bills have

been originated and pending before such House or originated and passed by the Upper House and pending before the Lower House.

2. In the legislature ofa State having a Legislative Council, if the Bill originated and passed by the Legislative Council is rejected by the Legislative Assembly there is no alternative way provided in the Constitution for the passing of such Bill.

Article 197 provides an alternative avenue only in cases of a Bill passed by the Legislative Assembly and rejected by the Legislative Council. On the other hand, in case of Parliament, a joint sitting may be summoned if the Bill passed by one House is rejected by the other.

Introduction and Passing of Bills

123

On the whole it can be said that the Constitution of India has accorded lesser importance to the Legislative Council of a State Legislature, as compared to the Council of States in Parliament. Further, a conjoint reading of those provisions shows that the Constitution has not conferred equal powers on both Houses of Parliament or, as the case may be, legislature of a State. Both Council of States as well as Legislative Councils have no power to initiate Money Bills or other Financial Bills. Moreover, in cases of Money Bills, the consent of the Council of States or, as the case may be, Legislative Council, has been literally dispensed with by the Constitution. EFFECT OF REFERRING THE BILL TO THE SELECT COMMITTEE AFTER ITS INTRODUCTION

In Koteswar Vittal Kamath v. K. Rangappa Baliga and Co. it was held that once the Bill

was validly introduced, it remained pending in the legislature even when it was referred to the Select Committee. There was no question of the Bill being introduced again

after the Select Committee had submitted its report. Even if the Bill was modified and redrafted by the Select Committee, it would have made no difference. That would be a modification and redrafting of the Bill at a stage when the Bill was still pending in the legislature, so that there would be no fresh introduction of the modified or redrafted Bill.

JUDICIAL REVIEW DURING THE PENDENCY OF BILL ON THE GROUND OF LEGISLATIVE INCOMPETENCE In Umayal Achi v. Lakshmi Achi,' it was held that the powers of a legislature or the

area of authorised legislation was not relevant whilst the Bill was going through the different stages of legislation. Besides, it was not sufficient that there has been a publication in the Gazette, and, therefore, while deciding the question whether a Bill has been properly passed, the proper course of action would be to look into the actual

procedure of enactment by the legislature.

JUDICIAL INTERFERENCE ON THE GROUND OF ALLEGED IRREGULARITY IN PASSING THE BILL

The question as to whether a court can enquire into alleged irregularity in passing of a Bill in a legislature has been raised before the court in several cases. In Visweshwar Rao v. State of Madhya Pradesh,’ it was held by the apex court that, in view of Article 212(1) > AIR 1969 SC 504. “ AIR (32) 1945 FC 25. ° AIR 1952 SCR 1020.

124

Analysis of Case Laws

of the Constitution, the courts cannot invalidate the legislation on the ground of procedural irregularity. This view has been consistently followed in several cases.° WRIT

PETITION

TO PREVENT

PASSING

OF

LEGISLATION

In Hem Chandra Sen Gupta and Ors v. The Speaker of Legislative Assembly of West Bengal and Ors,’ the Calcutta High Court dealt with the question whether any writ can be issued against the legislative body preventing it from passing any legislation. While answering the question negatively, the court observed that the legislatures are supreme within their allotted sphere. The courts are, therefore, not interested in the formative stages of any law. Even where a law has been promulgated, it is not the duty of the courts to act in a supervisory character and rectify the defects suo motu. In C. Srikisen v. State of Hyderabad and Ors,* the High Court of Andhra Pradesh dealt with a similar issue. In this case, a writ petition was filed in the High Court of Hyderabad seeking, inter alia, the declaration and issue of writ of prohibition or any other writ or direction to the respondents preventing them from introducing the Draft Reorganisation Bill in Parliament and of the proposal for the disintegration of Hyderabad State. While dismissing the petition, the court held that ‘a perusal of the prayers would show that the petitioner is asking us to do what we are not empowered or competent to do’. EFFECT OF DISSOLUTION OF THE ASSEMBLY ON A BILL PENDING THE ASSENT OF THE GOVERNOR OR THE PRESIDENT

In Purushottam Nambudari v. State of Kerala,’ the apex court considered this aspect in connection with a Bill passed by the Kerala Legislative Assembly which was reserved by the Governor for the consideration of the President. While holding that the Bill

pending for assent does not lapse on dissolution of the Assembly, the apex court held

that the effect of Clause (5) of Article 196 is that all cases not falling within its scope

are not subject to the doctrine of lapse of pending business on the dissolution of the Legislative Assembly. In that sense Clause (5) may be read as dealing exhaustively with

Bills, which would lapse on the dissolution of the Assembly. It was further held that even the scheme of Articles 200 and 201 supports the conclusion that a Bill pending the assent of the Governor or the President does not lapse as a result of the dissolution

of the Assembly.

“See for example Ram Dubey v. The Government of the State of Madhya Bharat, AIR (39) 1952 MB

57 (Gwalior Bench).

” AIR 1956 Cal. 378. * AIR 1956 Hyderabad 186. ” AIR 1962 SC 694.

Introduction and Passing of Bills

125

CONCLUSION The judicial pronouncements

discussed above suggest that the judiciary cannot

interfere in the formative stages of legislation, either on the ground of lack of legislative competence of the concerned legislature or otherwise. The courts have no power to prevent the legislature from either introducing or passing any legislation or discussing any proposals. Provisions contained in Articles 107 and 196 of the Constitution are exhaustive as to when the pending Bill lapses.

13 Address and Messages of President/Governor to the House or House(s)

Under the scheme of the Indian Constitution, the President of India and Governor of a State are part of the legislative organs. Parliament of India consists of the President

and two Houses,' and every State Legislature consists of the Governor and one House except few States where there are two Houses.” Under Article 86 of the Constitution,

the President has the right to address either House of Parliament or both Houses

assembled together, and for that purpose, he may require the attendance of Members.

The President may also send messages to either House of Parliament, whether with

respect to a Bill then pending or otherwise, and the House to which the message so sent is obligated to take the same into consideration. Identical power has been conferred on the Governor of a State under Article 175 with reference to a House or

Houses of State Legislature.

Further Articles 87(1) and

176(1) mandate respectively the President and the

Governor of the State to address both Houses of Parliament assembled together or,

as the case may be, Legislative Assembly or, in the case ofa State having a Legislative

Council, both Houses assembled together and inform legislatures of the causes of their

summons. As per the provision, the address of the President or, as the case may be, of the Governor is mandatory at the commencement of the first session after each general election to the House of the People or, as the case may be, Legislative Assembly and at the commencement of first session of each year. Being a constitutional provision

this provision requires substantial compliance. In Syed Abdul v. West Bengal Legislative

Assembly, the Governor, though she was present in the House, could not deliver her

speech due to commotion in the House. Finally, she laid the speech on the table of

the House. The court held that though the provisions of Article 176(1) are mandatory ' Article 79.

* Article 168. > AIR 1966 Cal. 363

Address and Messages of President/Governor to the House or House(s)

127

in nature, laying the address on the table of the House amounted to substantial compliance. But it should not be forgotten that the session should not begin without the Governor/President informing the House of the causes of its summoning. In the above decision as well as in the case of Saradhakar v. Speaker, Orissa Legislative Assembly,‘ the Governor came into direct contact with the House but could not deliver the speech due to certain exigencies. Therefore, substantial compliance was all that was required. In the West Bengal case, the court also said that the irregularity, if any, was merely procedural and Article 212 bars the courts from dissecting such issues. In another case, namely Sri Konathala Venkatramana and Anr v. State of Andhra Pradesh,’ the above-cited authorities were revisited. In the instant case, the Governor had taken ill and the Speaker delivered the Governor's address in his place. The petitioners contended that this was not mere procedural irregularity and the very fact that the Governor did not come into direct contact with the House cut at the very root of the

constitutional provision. Thus, it was contended that Article 212 could not protect the House and that it should be deemed that all subsequent proceedings in the House were a nullity. The court, though it agreed with the petitioners and distinguished the above decisions, refused to prod further on the issue as the decision in the case could

be arrived at otherwise also. But the court signed off by saying that such incidents are

unlikely to occur in future and if such incidents did occur it was hoped that recourse would be taken to Article 160 of the Constitution. As per Article 160, the President

should make necessary arrangements for the discharge of the Governor's functions in case of any contingency not provided for in the Constitution.

4 AIR 1952 Orissa 234.

> MANU/AP/0171/1968 : [1969] 24 STC 367 (AP).

14 Conflict of Powers of the Legislature vis-a-vis the Judiciary

In the scheme of our Constitution, legislatures, both at the Union as well as at the

State level, enjoy certain powers, privileges and immunities, which are essential to discharge their high constitutional functions without any hindrance and interference. Each House of Parliament as well as the State Legislature has the power, subject to

the provisions of the Constitution, to make rules for regulating its procedure and the conduct of business. Parliament and State Legislatures enjoy internal autonomy

to a certain extent. The validity of any proceedings in Parliament and the legislature

ofa State shall not be called in question on the ground of any alleged irregularity of procedure. No officer or Member of Parliament or Legislature of a State in whom

powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in Parliament or, as the case may be, State Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him/her of those powers. Further, the Constitution envisages ‘freedom of speech’ in Parliament as well as in the legislature of every State subject only to the provisions

of the Constitution and to the rules and standing orders regulating the procedure of Parliament or, as the case may be, State Legislature. Members of Parliament and State Legislatures are immunised from judicial proceedings in respect of anything said or any vote given by them in Parliament or State Legislatures or any Committees thereof. No liability ensues from the publication made by or under the authority of either

House of Parliament or a House of legislature ofa State of any reports, papers, votes

or proceedings. Houses of Parliament and State Legislatures, their Committees and Members also enjoy certain other powers, privileges and immunities as may be defined by law enacted, respectively, by them. Until so defined they continue to enjoy those powers, privileges and immunities vested in the House of Commons immediately prior to the commencement of the Constitution. Some of these constitutional guarantees are also available to persons who by virtue of the Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or State

Conflict of Powers of the Legislature vis-a-vis the Judiciary

129

Legislature or any Committee thereof. However, the Constitution imposes a restriction on discussion in the legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a high court in the discharge of his duties. Similar restriction

has been imposed on discussion in Parliament as well subject to an exception that such

discussion is permissible upon a motion for presenting an address to the President praying for the removal of the Judge. On the other hand, the Supreme Court and the high courts enjoy power of

judicial review under the scheme of the Indian Constitution. The task of authoritative

interpretation of the Constitution and safeguarding the fundamental rights vests with the judiciary, particularly, the Supreme Court being the final interpreter of the Constitution. In exercise of the power of judicial review, the Supreme Court claimed

to be the final Judge of constitutionality of all acts purported to be done under the authority of the Constitution, including the acts of legislatures. This assertion of the judiciary negated the legislatures claim for ‘total internal autonomy’, thus leading to the conflict between the two constitutional functionaries. The whole controversy between these two organs of the government,

around the following two issues:

1. Determination of existence, immunities of the legislatures 2. Power of Supreme Court and privileges and immunities by

in this context, is revolved, mainly,

content and scope of powers, privileges and and their Committees and Members. high courts to interfere in the exercise of powers, the legislatures or their members in view of the

various provisions containing immunity from judicial review.

It is already pointed out, elsewhere, that the question of existence and extent of the powers, privileges and immunities of the House is different from the question about the exercise of powers, privileges and immunities by the House. The judicial discourses

on the former question have been discussed in detail elsewhere in this volume. The prevailing constitutional position is that the question of determination of existence and extent of powers, privileges and immunities do not fall within the exclusive jurisdiction of the House concerned. It is the judiciary, which has the authority and jurisdiction to examine to find out whether the particular power or privilege that has been claimed or asserted by the legislature is one that was contemplated by the Constitution or not. Thus, the discussion in the present chapter is confined to the second question—

whether under our constitutional scheme is it open to the court to examine the manner

of exercise of powers, privileges and immunities by the legislatures? Or is it barred by the provisions containing immunity from judicial review, viz., Articles 105(2), 122, 194(2), 212, Tenth Schedule [paragraphs 6 and 7] of the Constitution of India?

IMMUNITY GIVEN

AND

FROM FOR

JUDICIAL

PROCEEDINGS

FOR ANYTHING

SAID OR ANY

VOTE

PUBLICATIONS

Articles 105(1) and 194(1) have made express provisions guaranteeing freedom of speech in Parliament and State Legislatures, respectively. The freedom of speech

130

Analysis of Case Laws

guaranteed under these provisions is independent from the freedom of speech conferred

on citizens by Article 19(1)(a) and unrestricted by the exceptions contained under Article 19(2) of the Constitution. This is recognition of the fact that Members need

to be free of all constraints in the matter of what they say in Parliament if they are to

effectively represent their constituencies in its deliberations. Further, Articles 105(2) and 194(2) provide immunity to the Members, respectively, of Parliament and State Legislatures from judicial proceedings in respect of anything said or any vote given by them in Parliament or any Committee thereof. Similarly, no person shall be liable in respect of publications by or under the authority of either House of Parliament or, as the case may be, State Legislatures, of any report, paper, votes or proceedings.! It

is explicit that the common Clause (2) of both Articles 105 and 194 puts negatively

what common Clause (1) of both the articles states affirmatively. Thus, both clauses have to be read together to determine their content.

By virtue of the first part of common Clause (2), no Member is answerable in a court of law or any similar tribunal for what he has said in Parliament or, as the case may be, legislature of a State. This again is recognition of the fact that a Member needs the freedom to say what he thinks is right in Parliament or, as the case may be, legislature of a State undeterred by the fear of being proceeded against. A vote,

whether cast by voice or gesture or the aid ofa machine, is treated as an extension of the speech or a substitute for speech and is given the protection that the spoken words

have. Similarly, any publication made by or under the authority of Parliament or, as the case may be, State Legislature, of any report, paper, votes or proceedings, is also exempted from judicial scrutiny.

In Tej Kiran Jain and Orsv. N. Sanjiva Reddy and Ors,’ an appeal was filed impugning the order of the High Court of Delhi dismissing the suit filed by the appellant claiming

damages for a defamatory statement made by the respondent in Parliament. It was

contended before the Supreme Court that the immunity granted under Article 105(2) was confined to ‘relevant Parliament business’ and not to something which is utterly irrelevant. Rejecting the contention, Hidayatullah, C. J. observed thus:°

In our judgment it is not possible to read the provisions of the Article in the way suggested. ‘Lhe Article means what it says in language, which could not be plainer. The Article confers immunity évter alia in respect of “anything said ... in Parliament”. The word “anything” is of the widest import and is equivalent to “everything”. The only limitation arises from the words “in Parliament” which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only ' Article 361A extends the protection accorded for publication of proceedings of Parliament and legislature of a State, respectively, under Article

105(2) and

194(2).

Under the said provision, a

person can enjoy similar protection from judicial proceedings in respect of the publication, made even without the authority of the House concerned, ofa substantially true report of the proceedings of the legislatures unless the same is proved to have been made with malice. ? (1970) 2 SCC 272. * Td. Paragraph 8.

Conflict of Powers of the Legislature vis-a-vis the Judiciary

131

with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any Court this immunity is not only complete but is as

it should be. It is of the essence of parliamentary system of Government that people's representatives should be free to express themselves without fear of legal consequences.

What they say is only subject to the discipline of the rules of Parliament, the good

sense of the Members and the control of the proceedings by the Speaker. The courts have no say in the matter and should really have none.

In P V. Narasimha Rao v. State (CBI/SPE),' a case relating to the bribing of certain

Members of Parliament to vote against a no-confidence motion Sabha against the minority government of P. V. Narasimha Rao, considered another interesting question as to whether, by virtue Members of Parliament can claim immunity from prosecution on

moved in the Lok the apex court has of Article 105(2), charges of bribery

in connection with the exercise of their vote against a no-confidence motion? The apex court held, per majority, that the alleged bribe-takers are entitled to immunity

under Article 105(2), the alleged conspiracy and acceptance of bribe being ‘in respect of’ or ‘having nexus’ with the vote against the no-confidence motion. However, the distinction has been made between those who accepted the bribe and cast their vote in pursuance thereof and those who despite having received the bribe pursuant to

conspiracy had abstained from voting. The court was of the opinion that only the former enjoy protection under Article 105(2) but not the latter. According to the court, what is protected under Article 105(2) is ‘what has been said and a vote that has

been cast, not something that might have been said but was not, or a vote that might

have been cast but was not’. Thus, the prosecution against those who abstained from

voting despite accepting a bribe must proceed. As regards the bribe-givers, the court

held that prosecution against them for conspiracy with the bribe-taking MPs, who

abstained from voting, must continue. However, the court had categorically stated

that Parliament might proceed against both bribe-takers and bribe-givers for breach of privilege and contempt. Thus, the Members of Parliament who accepted a bribe and cast their vote pursuant thereof, though exempted from criminal proceedings by virtue of Clause (2) of Article 105, were made subject to parliamentary proceedings for breach of privilege or contempt of the House.

By virtue of the second

part of common

Clause

(2) Articles

105 and

194, a

person who publishes a report or papers or proceedings, by or under the authority of Parliament or, as the case may be, State Legislature, is given protection in the

same broad terms against liability to proceedings in any court connected with such a publication. Publications made outside the authority of either of House of Parliament or, as the case may be, State Legislatures, do not enjoy the immunity accorded under

these provisions. However, in Dr Jatish Chandra Ghosh v. Harisadhan Mukherjee,”

* AIR 1998 SC 2120. > AIR 1961 SC 613.

132

Analysis of Case Laws

it was contended, before the apex court, that the question sought to be asked by a Member of a Legislative Assembly, even though disallowed by the Speaker, formed part of the proceedings of the House, and, as such, their publication would not attract the provisions of the Indian Penal Code. Since the publication, in the instant case, was made outside the authority of the House, it was held by the court that the Clause (2)

of Article 194 was of no assistance to the appellant. However, the reliance was placed

in the course of the arguments on the provisions of Clause (3) of Article 194(3) of

the Constitution. Does the publication of disallowed question by a Member of an Assembly come within the powers, privileges and immunities of the Members of the

House? While refuting the arguments, the apex court emphatically stated that there is

no absolute privilege attaching to the publication of extracts from proceedings in the House of Commons. So far as a Member of the House of Commons is concerned, he has an absolute privilege in respect of what he has spoken within the four walls of the House, but there is only a qualified privilege in his favour even in respect of what he has himself said in the House, if he causes the same to be published in the public

press except under the authority of the House concerned. The case of publication of

proceedings of Parliament, not under the authority of the House, stands on the same footing as the publication of proceedings in courts of justice. So long as Parliament

does not crystallise the legal position by its own legislation, it was held, the privileges, powers and immunities ofa House of State Legislature or Parliament or of its Members are the same as those of the House of Commons. BAR OF JURISDICTION OF COURTS UNDER ARTICLES 122 AND 212 Articles 122 and 212 of the Constitution read as follows:

Article 122. Courts not to inquire into proceedings of Parliament 1. The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. 2. No officer or Member of Parliament in whom powers are vested by or under

this Constitution for regulating procedure or the conduct of business, or for

maintaining order, in Parliament shall be subject to the jurisdiction of any court

in respect of the exercise by him of those powers.

Article 212. Courts not to inquire into proceedings of the legislature 1. The validity of any proceedings in the legislature ofa State shall not be called in question on the ground of any alleged irregularity of procedure.

2. No officer or Member of the Legislature of a State in whom powers are vested by

or under this Constitution for regulating procedure or the conduct of business, or

for maintaining order, in the legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

Conflict of Powers of the Legislature vis-d-vis the Judiciary

133

On a plain reading, Clause (1) of Article 122 prohibits ‘the validity of any proceedings

in Parliament’® from being ‘called in question’ in a court merely on the ground of ‘irregularity of procedure’. Similar prohibition, with reference to the State Legislature, has been contained in Clause (1) of Article 212. By virtue of these prohibitions, to

state explicitly, the procedural irregularities cannot be used by the court to undo or vitiate what happens within the four walls of legislature. In M. S. M. Sharma v. Shri Krishna Sinha,’ [Pandit Sharma (II)| while dealing with

the questions raised as to the regularity of the procedure adopted by the House of the Legislature, the apex court, inter alia, observed thus:* [T]he validity of the proceedings inside the legislature of a State cannot be called

in question on the allegation that the procedure laid down by the law had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the contention raised on behalf of the Petitioner. No court can go into those questions, which are within the special jurisdiction of the legislature itself, which has the power to

conduct its own business.

The issue of jurisdiction was one of the principal concerns of the apex court in the UP Assembly Case? under the cover of which the Uttar Pradesh Legislative Assembly had asserted its right to commit Keshav Singh for contempt and later had taken umbrage against the entertainment of a petition for Aabeas corpus in the high court under Article 226 of the Constitution. While dealing with the question as to whether the legislature was ‘the sole and exclusive Judge’ of the issue of contempt and of the punishment that deserved to be awarded against the contemnor, as against the

jurisdiction claimed by the high court to entertain a writ challenging the validity of the detention of the alleged contemnor, the apex court observed thus:!° Article 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it ® As to the meaning of the expressions ‘validity of the proceedings in Parliament/State Legislature’,

it is pertinent to refer co the observations made in Mangalanayagi Ammal and Vedham Iyer v. The Authorised Officer, Land Reforms, MANU/TN/0727/1979: (1980) 2 MLJ 429 and Sowdambigai Motor Service v. State of Tamil Nadu, MANU/TN/0743/1979: (1980) 1 MLJ 82. In both the cases,

the court expressed the opinion that though the President is a part of Parliament and giving of

assent to a Bill is an act of legislative nature, Article 122(1) does not prohibit the court from going

into the validity of the assent of the President. According to the court, it is one thing to say that the grant of or a refusal to grant assent is a legislative process. It is another thing to say that the same is proceedings in the legislature of a State or Parliament.

” AIR 1960 SC 1186.

8 Jd. Paragraph 10.

” AIR 1965 SC 745. '© Id. Paragraph 62.

134

Analysis of Case Laws would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular.

Thus, in the UP Assembly case, the Supreme Court authoritatively settled the issue. The Court made a clear distinction between ‘procedural irregularities’ on the one hand, and ‘substantive illegality’ or ‘unconstitutionality’ on the other. What is barred by Article 212(1) is judicial interference on the ground of mere procedural irregularity but not on the ground of substantive illegality or unconstitutionality. This position was reiterated by the apex court!’ and high courts’? in several other cases. It is pertinent to refer to some of the observations made in Smt. Indira Nehru Gandhi

v. Shri Raj Narain,'* while dealing with the question as to the lawfulness of the session of Parliament that had passed the Constitution (Thirty-ninth Amendment) Act, 1975.

Khanna J, in this regard, observed thus:'

The contention advanced by Mr Shanti Bhushan that the sittings of the two Houses of Parliament in which the impugned Acts were passed were not valid essentially relates

to the validity of the proceedings of the two Houses of Parliament. These are matters,

which are not justiciable and pertain to the internal domain of the two Houses. Of course, the courts can go into the question as to whether the measures passed by Parliament are constitutionally valid. The court cannot, however, go into the question as to whether the sittings of the Houses of Parliament were not constitutionally valid because some members of those Houses were prevented from attending and participating in the discussions in those Houses ... The observations on p. 456 in the case of Special Reference No. | of 1964 that if the impugned proceedings of a legislature are illegal and unconstitutional and not merely irregular, the same can be scrutinised in a court of law do not, in my opinion, warrant the inference that a court can hold the proceedings of a legislature to be not valid and constitutional by going into the question as to whether the detention of any member who was prevented from being

present in the sitting of the legislature on account of his detention was or was not in

accordance with law. The acceptance of the above submission of Mr Shanti Bhushan would necessarily result in a situation that whenever a law is made by Parliament, it

would be open to a person affected by that law to question the validity of that law by asking the court to examine the validity of detention of each of the members of Parliament who were under detention at the time the said law was passed even though those members do not themselves assail the validity of their detention.

Khanna J. was of the opinion that it is a right of each House of Parliament to be the sole Judge of the lawfulness of its own proceedings. Therefore, the courts cannot go '! Sub-committee on Judicial Accountability v. Union of India and Ors, (1991) 4 SCC 699 and Sarojini Ramaswami v. Union of India and Ors, (1992) 4 SCC 506.

'2 See, for example, Naveen Chandra Gupta, Advocate v. Union of India and Ors, MANU/ UP/0377/1999; Sowdambigi Motor Service v. State of Tamil Nadu, MANU/TN/0743/1979, etc. 'S HR 1975 SC 2299.

Td. Paragraph 180.

Conflict of Powers of the Legislature vis-d-vis the Judiciary

135

into the lawfulness of the proceedings of the House of Parliament. Beg J., in the course of his judgment, also observed thus:!° What is alleged by the election petitioner is that the opposition members of Parliament, who had been detained under the preventive detention laws, were entitled to get notice of the proposed enactments and the Thirty-ninth Amendment, so as to be present “in Parliament”, to oppose these changes in the law. I am afraid, such an objection is directly covered by the terms of Article 122, which debars every court from examining the propriety of proceedings “in Parliament”. If any privileges of members of Parliament were involved, it was open to them to have the question raised “in Parliament”. There is no provision of the Constitution, which has been pointed out to us providing for any notice to each Member of Parliament. That, | think, is also a matter completely covered by Article 122 of the Constitution. All that this

Court can look into, in appropriate cases, is whether the procedure, which amounts to legislation or, in the case of a constitutional amendment, which is prescribed by Article 368 of the Constitution, was gone through at all. As a proof of that, however, it will accept, as conclusive evidence, a certificate of the Speaker that a Bill has been duly passed.

Ray C. J., Mathew and Chandrachud, J. J. also expressed the similar opinions in their

respective judgments. Thus, the court refused to grant relief sought on the ground of lawfulness of the session of Parliament that had passed the constitutional amendment act, which, indeed, squarely falls within the ambit of Article 122(1). The concern of

the court did not involve the legality of the act of a legislative body. The apex court, in Raja Ram v. Hon'ble Speaker, The Lok Sabha and Ors,'* reconsidered the issue. As to the question whether under our jurisprudence it is open to the court to examine the manner of exercise of powers, privileges and immunities by legislature, learned counsel for the Union of India contended that the matter falls within the exclusive cognisance of the legislature, intrusion wherein for purposes of judicial review of the procedure adopted has always been consistently avoided by the judicature in England from where powers, privileges and immunities have been sourced as also expressly prohibited by the constitutional provisions. Further, in order to distinguish it from the UP Assembly case, counsel submitted that in the UP Assembly case, the court was dealing mainly with the powers of the courts under Articles 32 and 226 of the Constitution of India to entertain petitions challenging the legality of committal for contempt of the State Legislature on the grounds of breach of fundamental rights of non-members. But, impugned proceedings relates to the internal management only.

Referring to Article 122(1) of the Constitution, it was submitted that the validity

of proceedings in Parliament is a matter which is expressly kept beyond the gaze of the judicature. It was the contention that it should be left to the wisdom of the legislature to decide as to on what occasion and in what manner the power is to '5 Id. Paragraph 507.

'6 (2007) 3 SCC 184.

136

Analysis of Case Laws

be exercised especially as the Constitution gives to it the liberty of making rules for regulating its procedure and the conduct of its business. Rejecting the contentions,

the apex court held that on plain reading Article 122(1) prohibits the validity of any proceedings in Parliament from being called in question in a court merely on the ground of ‘irregularity of procedure’. But then, ‘procedural irregularity’ stands in stark

contrast to ‘substantive illegality, which cannot be found included in the former. It was categorically stated that the proceedings, which may be tainted on account of

substantive illegality or unconstitutionality, as opposed to those suffering from mere

irregularity, cannot be held protected from judicial scrutiny by Article 122(1) of the

Constitution. As regards the submission made to distinguish the case from the UP Assembly case, it was observed thus:'’ Article 122(1) thus must be found to contemplate the twin test of legality and constitutionality for any proceedings within the four walls of Parliament. The fact that

UP Assembly case (Special Reference No. 1 of 1964) dealt with the exercise of the power

of the House beyond its four walls does not affect this view which explicitly interpreted a constitutional provision dealing specifically with the extent of judicial review of the

internal proceedings of the legislative body. In this view, Article 122(1) displaces

the English doctrine of exclusive cognisance of internal proceedings of the House

rendering irrelevant the case-law that emanated from courts in that jurisdiction. Any

attempt to read a limitation into Article 122 so as to restrict the court's jurisdiction

to examination of Parliament’s procedure in case of unconstitutionality, as opposed

to illegality would amount to doing violence to the constitutional text. Applying the principle of “expressio unius est exclusio alterius” (whatever has not been included

has by implication been excluded), it is plain and clear that prohibition against

examination on the touchstone of “irregularity of procedure” does not make taboo judicial review on findings of illegality or unconstitutionality.

Thus, we see consistency in the judicial approach on the question. This consistency clearly establishes the position that the proceedings of Parliament are subject to judicial

review on the ground of ‘substantive illegality or unconstitutionality but not on the ground of mere ‘procedural irregularity’. Further, common

Clause (2) of Articles 122 and 212 confer immunity on the

officers and Members of Parliament or, as the case may be, State Legislature in whom powers are vested by or under the Constitution for regulating procedure or the

conduct of business, or for maintaining order, in the legislature from being subject

to the jurisdiction of any court in respect of the exercise by him of those powers. The protection accorded under these provisions is not only available to the Members

but also to the officers as well. However, there is no unanimity as regards the term ‘officers’. As regards the question whether even the secretariat staff of the House concerned are also immunised from the jurisdiction of the court, the high court of Madras in K. A. Muthialagan v. P Sreenivasan and Ors.,'* has held that the Secretary " Id. Paragraph 386.

'8 AIR 1973 Mad. 371.

Conflict of Powers of the Legislature vis-a-vis the Judiciary

137

of the Legislative Assembly of Tamil Nadu could not claim any such immunity. It was of the opinion that it is only in a case where the officer of the legislature of a State in whom powers are vested by or under the Constitution for regulating procedure or conduct of business he shall not be subject to the jurisdiction of any court in respect of the exercise by him of those powers. A secretary who exercises ministerial functions inside the House is not entitled for the same. The court adopted such an interpretation by referring to Articles 178 to 187 of the Constitution which deal with ‘Officers of the State Legislature’. However, in Jai Singh Rathi and Ors v. State of Haryana,’ the High Court of Punjab and Haryana has taken a contrary view and held that officers

of the State Legislatures, such as Secretary, are also entitled to similar protection. A similar stand was taken by the High Court of Kerala, in Raghunatha Panicker v. Kujala Shankappan.” In that case, a Member of the Legislative Assembly was prevented from entering the House by the guard under the orders of the Speaker. The Member initiated

action against the guard. The court, while holding that the guard is entitled to the

immunity under Article 212(2), observed that an officer carrying out the orders of the

Speaker within the precincts of the House is protected by the provisions contained in

Articles 212(2) and such actions are beyond the cognisance of the courts.

The Speaker of the Lok Sabha or the State Legislative Assembly and the Chairman of the Rajya Sabha or State Legislative Council are officers within the meaning of common Clause (2) of Articles 122 and 212. Ministers of the Government, whether of

the Centre or State, are also Members respectively of Parliament or State Legislatures; as such, the courts cannot interfere with them in the part they play in the proceedings of business of the House(s) nor can they interfere with their privileges, as the rights

of any of them to introduce any Bill in their respective Assemblies are rights and privileges of those Members whether as Member or as ministers. There is an inherent right in the legislatures to conduct their affairs without any interference from any outside body.”! By virtue of the said provisions, the courts do not interfere with the

functioning of the Speaker or, as the case may be, Chairman inside the House in the matter of regulating business and the conduct of business of the House by virtue of the power vested in him.” The courts cannot issue a writ prohibiting the Speaker from presiding over sittings of the House.” The Speaker or, as the case may be, the Chairman who signs a warrant for the arrest and detention of a person, in pursuance of a resolution passed by the legislature concerned in exercise of power vested in them under Article 105 or, as the case may be, Article 194 of the Constitution, is also immunised from the jurisdiction of the

courts. The immunity is an absolute one and officers are protected even if the warrant

"2 AIR 1970 P&H 379.

20 21 22 3

AIR 1987 Ker. 159. C. Srikisen v. State of Hyderabad and Ors, AIR 1956 Hyd. 186. Surendra Mohanty v. Nabakrishna Choudhury and Ors, AIR 1958 Ors. 168. Hem Chandra Sen Gupta v. The Speaker, Kerala Legislative Assembly, AIR 1956 Cal 378.

138

Analysis of Case Laws

is wrongly executed by others.*4 The Speaker cannot be sued for the damages for wrongful arrest by a person who is arrested on his warrant to answer a charge of

contempt of the House, but later released by the court, as the Speaker acts in this

matter in discharge of his duties connected with the internal affairs of the House.” The Speaker’s act of disallowing the question put by a Member is also immunised from judicial scrutiny.”* However, the protection accorded under these provisions is not available to the Speaker where he acts as a delegate of the Governor in the matter of administration of oath.’” Further, Articles 122(2) and 212(2) protect only exercise

of powers vested in an officer or a Member of a legislature and will not protect from challenge before the court, exercise of any power which is not vested in him under the Constitution.”® The protection accorded

under Articles

122(2) and 212(2)

is available to the

officers and Members even when certain mandatory provisions in the Constitution

are violated. In cases where Article 121 or Article 211 is alleged to have been violated,

the court cannot issue a notice on the presiding officer of the House, call for records of the House, determine whether Article 121 had been contravened by the speech in

question, question the decision of the presiding officer, or direct him to expunge the objectionable words or passage from the proceedings of the House.” However, the constitutional immunity accorded under these provisions com-

mences only after the provisions of the Constitution have been complied with. Where a person elected to the Legislative Assembly did not take oath as prescribed in the Con-

stitution, such a person cannot contend and claim protection under Article 212(2).

The court can examine the issue of the validity of oath taken by him.*°

Thus, the protection accorded under these provisions is limited to the exercise

of power conferred by or under the authority of the Constitution subject to the

condition of compliance with provisions dealing with oath. Acts done not by or under the authority of the Constitution are not protected under these provisions. IMMUNITY

FROM

JUDICIAL

PROCEEDINGS

UNDER

THE TENTH

SCHEDULE

The Tenth Schedule, which was added to the Constitution by the Constitution (Fiftysecond Amendment) Act, 1985, provides for detailed provisions as to disqualification

on the ground of defection. Paragraph 6(1), amongst others, vests the authority to

take a decision on the question of disqualification on the ground of defection unto the

4 Homi D. Mistry v. Nafisul Hasan and Ors, YLR 1957 Bom. 218. > Id. 6 Godavari Mishra v. Speaker, Orissa Legislative Assembly, AR 1953 Ors. 111. 7 Thankamma v. The Hon'ble Speaker, Legislative Assembly, Travancore-Cochin State and Anr, AIR 1952 Trav-Cochin 166. 6 Nipamacha Singh v. Secretary, Manipur Legislative Assenbly, AIR 2002 Gau. 7. A. K. Subbaiah v. Karnataka Legislative Council, AIR 1979 Kant. 24. *© Haridasan Palayil v. The Speaker, Kerala Legislative Assembly, AIR 2003 Ker. 328.

Conflict of Powers of the Legislature vis-d-vis the Judiciary

139

Chairman or, as the case may be, Speaker of the House. This provision declares that the decision of the said authority ‘shall be final’. Interestingly, paragraph 6(2) States that all the proceedings relating to decisions on the question of disqualification on the ground of defection ‘shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the legislature of a State within the meaning of Article 212’. Further, paragraph 7 contains an express bar of jurisdiction of courts in respect of any matter connected with the disqualification of a Member of a House under the Tenth Schedule. It was in the context of these provisions that questions relating to the parameters of judicial review of the exercise of a constitutional power in the face of a constitutional bar on the jurisdiction of the court arose before a Constitutional Bench of the apex court in Kihota Hollohan v. Zachilhu and Ors’' The apex court examined the matter with reference, inter alia, to the immunity under Article 122, exclusivity of jurisdiction vested in the authority mentioned in the Tenth Schedule and the concept of ‘finality’, in addition to an express bar making it a non-justiciable area. With reference to paragraph 6(1) of the Tenth Schedule, which seeks to impart finality to the decision of the Speaker or, as the case may be, Chairman of the House, the apex court held that though it is valid, the concept of statutory finality embodied in the said provision does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution of India insofar as infirmities based on violations of constitutional mandates, malafides, non-compliance with rules of natural justice and perversity are concerned.

Further, with reference to paragraph 6(2), it was observed that the fiction in the said provision places it in the common Clause (1) of Article 122 or, as the case may

be, Article 212. Thus, the proceedings under paragraph 6(1) attracts an immunity

analogous to that in Articles 122(1) and 212(1) of the Constitution as explained in

the UP Assembly case to protect the validity of proceedings judicial review merely on the ground of irregularities of procedures. The deeming provision having regard to the words ‘be deemed to be proceedings in Parliament’ or ‘proceedings in the Legislature of a State’ confines the scope of the fiction accordingly.” However, paragraph 7 of the Tenth Schedule which bars the jurisdiction of all courts in respect of any matter connected with the disqualification of a Member of a House under the Tenth Schedule was considered to be invalid on the ground that the said provision was made without ratification of State Legislatures as required in 7} 1992 Supp (2) SCC 651. >? The position has been reiterated in several other cases, viz., Dilipsinh Vakhatsinh Parmar v. Gumanisinh Vaghela, Hon'ble Speaker, Gujarat Legislative Assembly, MANU/GJ/0382/1997: (1998) 3 GLR 2119; Narasingrao Gurunath Patil v. Arun Gujarathi, Speaker, MANU/MH/1099/2002: 2003 (1) BomCR 363; Shri Filipe Nery Rodrigue, Member of the Legislative Assembly of Goa v. Shri Sadananda Mhalu Shet, Speaker, Goa Legislative Assembly, MANU/MH/1147/2005: 2006 (2) BomCR 424 and A.K. Subbaiah v. The Chairman, Karnataka Legislative Council, AIR 2007

Kant. 145.

140

Analysis of Case Laws

Article 368(2) to bring about changes in the operation of Articles 136, 226 and 227 of the Constitution.

CONCLUSION

It is clear from the above discussion that the ‘immunity or finality Clauses’ referred to

above have not completely ousted the jurisdiction of the constitutional courts under

Article 32, 136 and 226 of the Constitution. Immunity accorded under first part of the common

Clause (2) of Articles 105 and

194 of the Constitution is strictly

confined to what is actually said and the vote actually cast in the House. Similarly, the latter parts of common

Clause (2) of Articles 105 and 194 provide protection to

publications made only under the authority of the legislatures. Immunity provided under Articles 122 and 212 of the Constitution protects the proceedings of the House from being challenged only on the ground of ‘procedural irregularity’ but not on the ground of ‘unconstitutionality or substantial illegality’. Legal fiction created under Clause (2) of paragraph 6 of the Tenth Schedule has also been limited accordingly. Further, the finality Clause enacted under paragraph 6(1) of the Tenth Schedule does

not exclude judicial review insofar as infirmities based on violations of constitutional

mandates, malafides, non-compliance with rules of natural justice and perversity are concerned.

Topic-wise List of Cases

1. Powers, PRiviLeGES AND IMMUNITIES OF PARLIAMENT

AND STATE LEGISLATURES

Freedom of Speech and Protection from Prosecution for what is said in the House 1. K. Anandan Nambiar v. Chief Secretary, AUR 1966 SC 657.

2. P V. Narsimha Rao v. State (CBI/SPE), AIR 1998 CD 2120.

3. Raja Ram Palv. The Hon'ble Speaker, Lok Sabha and Ors, [2007] 3 SCC 184. 4. Tej Kiran Jain and Ors v. N. Sanjiva Reddy and Ors, AIR 1970 SC 1573: [1970] 2 SCC 272: [1971] 1 SCR 612.

Publication of Proceedings of the Legislatures 1. D. Murugesan v. The Hon'ble Speaker (Thiru Sedapatti R. Muthiah) Tamil Nadu

Legislative Assembly, MANU/TN/0062/1995, AIR 1995 Mad 260. 2. Dr Jatish Chandra Ghosh v. Harisadhan Mukherjee and Ors, AIR 1956 Cal 433: 60 CWN 971. 3. Dr Jatish Chandra Ghosh v. Harisadhan Mukherjee, AUR 1961 SC 613.

4. M.S. M. Sharma v. Sri Krishna Sinha and Ors, AIR 1959 SC 395: [1959] Supp1 SCR 806.

5. Surendra Mohanty v. Nabakrishna Choudhury and Ors, AIR 1958 Ori 168: 1958 CrLJ 1055. Power to Make Rules to Regulate Procedure and Conduct of Business 1. Chhabildas Mehta, MLA and Ors v. The Legislative Assembly, Gujarat State and Ors, MANU/GJ/0150/1970:

(1970) 11 GLR 729.

2. M. S. M. Sharma v. Sri Krishna Sinha and Ors, AUR 1959 SC 395: [1959] Supp1

SCR 806.

Analysis of Case Laws

142

3. Parkash Singh Badal and Ors v. Union of India and Ors, AIR 1987 P&H 263. 4. Smt. Indira Nehru Gandhi v. Shri Raj Narain, AUR 1975 SC 2299. immunity from Judicial Review l. P V. Narsimha Rao v. State (CBI/SPE), AIR 1998 SC 2120. 2. Tej Kiran Jain and Ors v. N. Sanjiva Reddy and Ors, AIR [1970] 2 SCC 272.

Power of Expulsion I. Amarinder Singh v. Special Committee, Punjab Vidhan Sabha and Ors, YT 2010 (4)

350: 2010 (4) SCALE 354.

2. Hardwari Lal v. Election Commission of India and Ors, ILR [1977] 2 P&H 269.

. K. Anbazhagan and Ors v. The Secretary, The Tamil Nadu Legislative Assembly, Madras and Ors, AUR 1988 Mad 275.

. Raja Ram Palv. The Hon'ble Speaker, Lok Sabha and Ors, [2007] 3 SCC 184.

. Yeshwant Rao Meghwalev. Madhya Pradesh Legislative Assembly and Ors, AIR 1967

MP 95.

Power of Suspension 1. Jai Singh Rathi and Ors v. State of Haryana, AIR 1970 P&H 379.

2. Raj Narain Singh v. Atmaram 1954 All 319.

Govind and Anr,

MANU/UP/0151/1954,

AIR

Breach of Privileges and Acts of Contempt; Power to Reprimand, Admonish, Censure and Imprisonment l. Gunupati

Keshavram Reddy v. Nafisul Hasan and the State of UP, MANU/ SC/0100/1952, AIR 1954 SC 636. 2. Keshav Singh v. The Speaker, In the Matter of: Under Article 143 of the Constitution of India, MANU/SC/0048/1964, AIR 1965 SC 745. 3. M. S. M. Sharma v. Sri Krishna Sinha and Ors, AIR 1959 SC 395: [1959] Supp] SCR 806.

4.

Manjit Singh v. Maharashtra Assembly, MANU/MH/0395/2006: 2006 (4) MHL]

834.

Restrictions on Deliberations in Parliament l. A. K. Subbaiah v. Ramakrishna Hegde and Ors, AIR

KAR 2528: 1993 (4) KarLJ 205.

1994 Kant 35: ILR 1993

2. Dr Jatish Chandra Ghosh v. Harisadhan Mukherjee, AIR 1961 SC 613 3. Keshav Singh v. The Speaker, In the Matter of: Under Article 143 of the Constitution

of India, MANU/SC/0048/1964, AIR 1965 SC 745.

Topic-wise List of Cases

143

oo

or

. M.S. M. Sharma v. Sri Krishna Sinha and Ors, AUR 1959 SC 395: [1959] Supp1 SCR 806. 5. O. Ramalingam and Ors v. The Director, Daily Thanthi and Ors, AIR 1975 Mad 309. 6. PR V. Narasimha Rao v. State (CBI), AIR 1998 SC 2120: 1998 (3) SCALE 53: (1998) 4 SCC 626 [1998] 2 SCR 870. 7. Saroj Giri v. Vayalar Ravi and Ors, 1999 CriLJ 498. . Sub-committee of Judicial Accountability v. Union of India and Ors, AIR 1992 SC 320: JT 1991 (6) SC 184: 1991 (2) SCALE 844.

9. Surendra Mohanty v. Nabakrishna Choudhury and Ors, AIR 1958 Ori 168: 1958 CrLJ 1055.

10. Tej Kiran Jain and Ors v. N. Sanjiva Reddy and Ors, AIR 1970 SC 1573: (1970) 2 SCC 272: [1971] 1 SCR 612: [1970] 2 SCC 272. Power of Chairman/Speaker/Committees of Privileges of the Houses of

Parliament and State Legislatures to Summon Alleged Contemnor

1. C. Subramaniam v. Speaker, Madras Legislative Assembly and Ors, AIR 1969 Mad 10.

2. Keshav Singh v. The Speaker, In the Matter of: Under Article 143 of the Constitution of India, MANU/SC/0048/1964, AIR 1965 SC 745 Prevention of Corruption Act and Privileges of Members 1. P V. Narasimha Rao v. State (CBI), AIR 1998 SC 2120: 1998 (3) SCALE 53: (1998) 4 SCC 626: [1998] 2 SCR 870.

Effect of Conviction on Membership of a Member 1. Navjot Singh Sidhu v. State of Punjab, AIR 2007 SC 1003. Privileges vis-a-vis Fundamental Rights of Citizens 1. Gunupati Keshavram Reddy v. Nafisul Hasan and the State of UP, MANU/ SC/0100/1952, AIR 1954 SC 636. 2. Keshav Singh v. The Speaker, In the Matter of: Under Article 143 of the Constitution of India, MANU/SC/0048/1964, AIR 1965 SC 745. 3. M. S. M. Sharma v. Sri Krishna Sinha and Ors, AIR 1959 SC 395: [1959] Supp1 SCR 806.

4. P V. Narasimha Rao v. State (CBI), AIR 1998 SC 2120: 1998 (3) SCALE 53:

(1998) 4 SCC 626: [1998] 2 SCR 870. 5. Raj Narain Singh v. Atmaram Govind and Anr, MANU/UP/0151/1954, AIR 1954 All 319.

6. Raja Ram Palv. The Hon'ble Speaker, Lok Sabha and Ors, (2007) 3 SCC

184.

Analysis of Case Laws

144

Il. Powers, PRIVILEGES AND IMMUNITIES OF MEMBERS Immunity against Preventive Detention —

A. Kunjan Nadar v. The State, AIR 1955 TC-Cochin 154.

1952

Cal

~

. Ansumali Majumdar and Ors v. State of West Bengal and Anr, AIR 632. In Re: K. Anandan Nambiar, AIR 1952 Mad 117.

_ In Re: Pillalamarri Venkateswarlu, A detenue in the Central Jail v. The Distt Magistrare and Superintendent, Central Jail, AIR 1951 Mad 269. . K. Anandan Nambiar v. Chief Secretary to Government of Madras, AIR 1966 SC

657. Raghu Raj Pratap Singh alias Raja Bhaiya v. State of UP and Ors, 2003(3) AWC 2016, MANU/UP/0237/2003.

Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr, AIR 1975 SC 2299: 1975 (Supp.) SCC 1.

Immunity against Arrest l. A. Kunjan Nadar v. The State, AIR 1955 TC-Cochin 154. 2. Ansumali Majumdar and Ors v. State of West Bengal and Anr, AIR

1952 Cal

632. 3. Gunupati Keshavram Reddy v. Nafisul Hasan and the State of UP, AIR 1954 SC 636.

. In Re: K. Anandan Nambiar, AIR 1952 Mad 117. . In Re: Pillalamarri Venkateswarlu, A detenue in the Central Jail v. The District

Magistrate and Superintendent, Central Jail, AUR 1951 Mad 269. K. Anandan Nambiar v. Chief Secretary, AIR 1966 SC 657. Raghu Raj Pratap Singh alias Raja Bhaiya v. State of UP and Ors, 2003 (3) AWC 2016.

. Smt. Indira Nehru Gandhi v. Shri Raj Narain, AYR 1975 SC 2299: (1975) Supp. SCC 1.

Right to Participate in the Proceedings 1. A. Kunjan Nadar v. The State, AIR

1955 TC-Cochin

154.

. In Re: K. Anandan Nambiar, AIR 1952 Mad 117.

K. Anandan Nambiar v. Chief Secretary, AIR 1966 SC 657, AIR (1966) 2 SCR

406. Keshav Singh v. The Speaker, AIR 1965 SC 745. . Raghu Raj Pratap Singh alias Raja Bhaiya v. State of UP and Ors, 2003 (3) AWC 2016.

. Raja Ram Pal v. The Hon'ble Speaker, Lok Sabha and Ors, (2007) 3 SCC 184. . Smt. Indira Nehru Gandhi v. Shri Raj Narain, AR 1975 SC 2299, (1975) Supp. SCC.

Topic-wise List of Cases

145

Right to Communicate with the Speakers/House 1. In Re: K. Anandan Nambiar, AIR 1952 Mad 117. Protection from Prosecution (for what is said in the House) 1. Ajit Singh v. State (Delhi) Through CBI, 1998 (3) SCALE 672. 2. Haridasan Palayil v. The Speaker, Kerala, AIR 2003 Ker

KE/1306/2003.

328,

MANU/

SY MNAWKRY

. K Anandan Nambiar v. Chief Secretary, AIR 1966 SC 657.

. Kihota Hollohan v. Zachilhu, [1992] 1 SCC 309.

—

R. Sudarsana Babu v. State of Kerela, 1983 KLT 339. Raja Ram Pal v. The Hon'ble Speaker, Lok Sabha and Ors, [2007] 3 SCC 184. Saroj Giri v. Vayalar Ravi and Ors, 1999 CriLJ 498, MANU/UP/0978/1998. T. M. Jacob v. State of Kerela and Anr, 1999 CrLJ 3609, ANU/KE/0763/1999. Tej Kiran Jain and Ors v. N. Sanjiva Reddy and Ors, AIR 1970 SC 1573. Tej Kiran Jain and Ors v. N. Sanjiva Reddy and Ors, AIR 1971 Del 86.

Misconduct of Members and Consequences l. Hardwari Lal v. Election Commission of India and Ors, LR

(FB).

[1977] 2 P & H 269

NAW

RY

Jai Singh Rathi and Ors v. State of Haryana, AIR 1970 P & H 379.

K. Anbazhagan v. T.N. Legislative Assembly, AIR 1988 Mad 274 at 319.

PV. Narsimha Rao v. State, 1988 (4) SCC 626.

Raj Narain Singh v. Atmaram Govind and Anr, 2003 (3) AWC 2106. Raja Ram Pal v. The Hon'ble Speaker, Lok Sabha and Ors, [2007] 3 SCC 184. Yeshwant Rao Meghwalev. Madhya Pradesh Legislative Assembly and Ors, AIR 1967 MP 95.

SESSIONS, PROROGATION AND DISSOLUTION . Anand Mohan v. Union of India and Ors, AIR 1985 All.

GO Nb CON AOR

. . . . .

R. Krishnaiah v. Union of India, 2003 (6) ALD 897. Rameshwar Prasad and Ors v. Union of India and Anr, AIR 2006 SC 980. In Re; Gujarat Assembly Election Matter, AIR 2003 SC 87. State of Rajasthan v. Union of India [1977] 3 SCC 592. Udai Narain Sinha v. State of Uttar Pradesh and Ors, AIR 1987 All 203.

IV. Memesers RIGHT TO ATTEND SESSION OF THE HOUSE WHILE

Unoer Arrest/DETENTION 1. A. Kunjan Nadar v. The State, AUR 1955 TC-Cochin 154. 2. Ansumali Majumdar v. The State, 1.L.R. [1954] I. Cal. 272.

Analysis of Case Laws

146 Qo

. In Re: K. Anandan Nambiar, AYR 1952 Mad 117. . K. Anandan Nambiar and Anr v. Chief Secretary, Government of Madras and Ors, AIR 1966 SC 657: 1966 CriLJ 586: [1966] 2 SCR 406.

AN

. Keshav Singh v. The Speaker, AIR 1965 SC 745, AIR 1965 SC 745. . Raghu Raj Pratap Singh alias Raja Bhaiya v. State of UP and Ors, 2003 (3) AWC 2016.

. Raja Ram Pal v. The Hon'ble Speaker, Lok Sabha and Ors, [2007] 3 SCC 184. Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr, AIR 1975 SC 2299: (1975)

Supp. SCC 1: [1976], 2 SCR 347. ~ Wait PETITIONS CHALLENGING

RESOLUTIONS ADOPTED BY THE HOUSE

a

WN

—

. A. K. Roy v. Union of India, AIR 1982 SC 710. C. Srikisen v. State of Hyderabad and Ors, AIR 1956 Hyderabad 186. Hem Chandra Sen Gupta and Ors v. The Speaker of Legislative Assembly of West Bengal and Ors., AIR 1956 Cal 378. O. S. Manian v. Speaker, Tamil Nadu Legislative Assembly, (2000) 4 MLJ 121.

5. Sarojini Ramaswami v. Union of India, AIR 1992 SC 2219.

. Sub-committee of Judicial Accountability v. Union of India and Ors, AIR 1992 SC 320.

Vi. Wait Petitions CHALLENGING DECISIONS OF THE CHAIRMAN/SPEAKER . Bhajaman Behera v. Speaker, Orissa Legislative Assembly, AUR 1990 Ori 18. . Dr Kashinath G. Jalmi v. The Speaker, Legislative Assembly of Goa, AIR 1993 SC 1873.

. G. Viswanathan v. The Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras, AIR 1996 SC 1060. Godavari Misra v. Nandakisore Das, Speaker, Orissa Legislative Assembly, AIR 1953 Ori 111.

Gunupati Keshavram Reddy v. Nafisul Hassan, AIR 1954 SC 636. Keshav v. State of UP, AIR 1965 SC 745. Kihota Hollohan v. Zachilhu, AIR 1993 SC 412. M. S. M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395. Mayawati v. Markandeya Chand and Ors, AIR 1998 SC 3340.

O. S. Manian v. Speaker, Tamil Nadu Legislative Assembly, [2000] 4 MLJ 121.

. Parkash Singh Badal and Ors, v. Union of India and Ors, AIR 1987 P&H 263. _ R. Sudarsana Babu v. State of Kerala, \LR (Kerala) 1983 661.

. Rajendra Singh Rana v. Swami Prasad Maurya, [2007] 4 SCC 270. . Ravi. S. Naik and Sanjay Bandenkar v. Union of India, AIR 1 994 SC 1558. . Ravi. S. Naik v. Union of India, AIR 1994 SC 1158.

Topic-wise List of Cases

147

VII. QUALIFICATIONS AND DISQUALIFICATIONS OF MEMBERS OF PARLIAMENT AND STATE LEGISLATURES CONAN KROHN —

_ . . . . . . .

A. K. Subbaiah v. Ramakrishna Hegde, 1993 (4) Kar LJ 205. A. Swamickan v. K. Venkatachalam and Anr, AIR 1987 Mad 60. Baljeet Singh v. Election Commission of India and Ors, AIR 2001 Delhi 1. Bhagwan Dass Sehgal v. State of Haryana, AIR 1974 SC 2355. Biharilal Dorbay v. Roshan Lal Dorbay, AIR 1984 SC 385. Brundaban Nayak v. Election Commission of India, AIR 1965 SC 1892. Jaya Bachchan v. Union of India, AIR 2006 SC 2119. The Election Commission of India v. Dr Subramaniam Swamy, AIR 1996 SC 1810.

\o

. The Election Commission of India v. N. G. Ranga, AJR 1978 SC 1609.

VII. ANTI-DEFECTION Law (TENTH SCHEDULE) 1. Dr Kashinath Jalmi v. Speaker and Ors, AIR 1993 SC 1873. 2. Dr Luis Proto Barbosa v. Union of India, AIR 1992 SC 1812.

3. Dr Mahachandra Prasad Singh v. Hon. Chairman, Bihar Legislative Council, AIR 2005 SC 69. . G. Viswanathan v. The Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras,

~—

—_

= pant

OVO

onan

. . . . . . .

AIR 1996 SC 1060. Kihota Hollohan v. Zachilhu, AIR 1993 SC 412. M.S. M. Sharma v. Shri Krishna Sinha, AIR 1960 SC 1186. Mayawati v. Markandeya Chand, AIR 1998 SC 3340. Parkash Singh Badal and Ors v. Union of India, AIR 1987 P&H 263. Rajendra Singh Ranav. Swami Prasad Maurya, (2007) 4 SCC 270. Ravi S. Naik v. Union of India, [1994] 2 SCC 21. Union of India v. Jyoti Prakash, AUR 1971 SC 1093.

IX. RESIGNATION, REMOVAL AND VACATION OF SEAT . Anand Bihari Mishra v. Ram Sahay, AUR (39) 1952 MB 31 (Gwalior Bench).

QD

nN

. Ansumali Majumdar and Ors v. The State of West Bengal and Anr, AYR 1952 Cal 632. Habibullah Khan v. State of Orissa, (1993) Cr.LJ. 3604.

BR NN

. Jai Singh Rathi v. State of Haryana, AUR 1970 P&H 379.

. Janaganavadi Bharati v. Govt. Of India and Ors, 2005 (5) Scale 298.

. Joginder Singh Toor and Anr v. Union of India through Secretary, Law, Justice and Companies Affairs, New Delhi and Ors, AIR 1994 P&H 35 (37). .M. Kunjukrishnan Nadar v. Hon'ble Speaker, Kerala Legislative Assembly, Trivandrum, AIR 1964 Ker 194.

148

Analysis of Case Laws

8. PV. Narsimha Rao v. State (CBI/SPE), AIR 1998 4 SCC 629. 9. Panna Lal Agyan v. Hon'ble Speaker, Sri Balram Jakgad and Ors, AIR 1988 All 167.

10. Raja Ram v. The Hon'ble Speaker Lok Sabha and Ors, (2007) 3 SCC

184.

11. Surat Singh Yadav v. Sudama Pd., AIR 1965 All 536. 12. Thankamma v. The Honorable Speaker, Legislative Assembly Travancore Cochin & Others, AIR 1952 Trav-Co 166.

13. Yeshwant Rao Meghwalev. Madhya Pradesh Legislative Assembly and Ors, AUR 1967 MP 95.

™

AW

awh

X. OATH OR AFFIRMATION Anand Bihari Mishra v. Ram Sahay, AIR (39) 1952 MB 31 (Gwalior Bench). Baljeet Singh v. Election Commissioner of India and Ors, AIR 2001 Del. 1. Durga Das Rathore v. The State of Bihar and Ors, 1991 (1) BLJR 495. G. Vasantha Paiv. C. K. Ramaswami and Anr, AIR 1978 Mad. 342. Har Sharan Varma v. Union of India, AIR 1987 All 294. Haridasan Palayil v. The Speaker of 11th Kerala Legislative Assembly and Ors, AIR 2003 Ker. 328.

Madhu Parimala v. Kerala Legislative Assembly and Ors, AIR 2007 Ker. 18.

8. Madhukar Jetly v. Union of India (UOD) and Ors, 1997 (11) SCC 111: JT1998(9) SC498. 9. Pashupati Nath Sukul and Ors v. Nem Chandra Jain and Ors, AIR 1984 SC 399, 1983(2) SCALE 800, (1984) 2SCC 404, [1984] I1SCR 939, 1984 (16)UJ1 79(SC).

10. Purushottam Lal Sharma v. State of Rajasthan & Ors, AUR 1979 Raj. 18.

11. R. Sudarsana Babu v. State of Kerala, 1983 KLT 339. 12. Rajesh Ranjan v. State of Bihar and Anr, (2000) 9 SCC 222. 13. Social Action for Peoples Rights and Anr v. State of Uttar Pradesh, AIR 2003 All

250.

14. Thankamma v. The Honorable Speaker, Legislative Assembly Travancore-Cochin and Ors, AIR 1952 Trav-Cochin 166.

XI. VOTING

IN THE HOUSE

1. K. Anandan Nambiar v. Chief Secretary, Government of Madras, AIR 1966 SC 657. 2. Kihota Hollohan v. Zachilhu and Ors, 1992 Supp (2) SCC 651.

3. P V. Narasimha Rao v. State (CBI), AIR

1998 SC 2120:

1998

(3) SCALE

(1998) 4 SCC 626: [1998] 2 SCR 870. 4. Smt. Indira Nehru Gandhi v. Shri Raj Narain, AIR 1975 SC 2299.

53:

Topic-wise List of Cases

149

X11. INTRODUCTION AND PAssiNG oF BiLts

1. C. Srikisen v. State of Hyderabad and Ors, AIR 1956 Hyderabad 186. 2. Hem Chandra Sen Gupta and Ors v. The Speaker of Legislative Assembly of West Bengal and Ors, AIR 1956 Cal 378. Qo

. Koteshwar Vittal Kamath v. K. Rangappa Balinga & Co., AIR 1969 SC 504.

wm

. Purushottam Nambudari v. State of Kerala, AIR 1962 SC 694. 5. Umayal Achi v. Lakshmi Achi, AIR 1954 SC 25.

XIII. ADDRESS AND MESSAGES OF PRESIDENT/GOVERNOR TO

THE House or House(s) 1. Ram Das Athawale v. Union of India, (2010) 4 SCC

1: 2010 (3) SCALE 412.

2. Saradhakar v. Speaker, Orissa Legislative Assembly, AIR 1952 Orissa 234. 3. Sri Konathala Venkatramana and Anr vy. State of Andhra Pradesh, MANU/ AP/0171/1968: [1969] 24 STC 367 (AP). 4. Syed Abdul v. West Bengal Legislative Assembly, AIR 1966 Cal. 363. XIV. CONFLICT OF POWERS OF THE LEGISLATURE VIS-A-VIS THE JUDICIARY

wm

Oo

1. A. K. Subbaiah v. KAR 2528: 1993 2. C. Srikisen v. State . Dr Jatish Chandra . Haridasan Palayil

CON

NWN

. . _ .

328.

Ramakrishna Hegde and Ors, AIR 1994 Kant 35: ILR 1993 (4) KarLJ 205. of Hyderabad, AIR 1956 Hyd. 186. Ghosh v. Harisadhan Mukherjee, AIR 1961 SC 613. v. Speaker, 11th Kerala Legislative Assembly, AIR 2003 Ker.

Homi D. Mistry v. Nafisul Hasan and Ors, 1LR 1957 Bom. 218. Jai Singh Rathi v. State of Haryana, AIR 1970 P & H 379. K. A. Muthialagan v. P Sreenivasan and Ors, AIR 1973 Mad. 371. Keshav Singh v. The Speaker In the Matter of: Under Article 143 of the Constitution of India, MANU/SC/0048/1964, AIR 1965 SC 745.

9. Kihota Hollohon v. Zachilhu and Ors, AIR

1993 SC 412: JT 1992 (1) SC 600:

1992 (1) SCALE 338: 1992 Supp (2) SCC 651: [1992] 1 SCR 686. 10. M. S. M. Sharma v. Sri Krishna Sinha and Ors, AIR 1959 SC 395: [1959] Supp] SCR 806. 11. Mangalanayagi Ammal and Vedham lyer v. The Authorized Officer, Land Reforms, MANU/TN/0727/1979: [1980] 2 ML] 429. 12. Manjit Singh v. Maharashtra Assembly and Ors, 2006(4) MHL] 834. 13. Naveen

Chandra

Gupta, Advocate v. Union of India and Others,

1679: MANU/UP/0377/1999.

14. P V Narasimha Rao v. State (CBI), AIR

(1998) 4 SCC 626: [1998] 2 SCR 870.

1998 SC 2120:

1999(2) AWC

1998 (3) SCALE

53:

150

Analysis of Case Laws

15. Raghunatha Panicker v. Kujala Shankappan, AIR 1987 Ker. 159.

16. Raja Ram v. The Hon'ble Speaker, Lok Sabha and Ors, [2007] 3 SCC 17. Sarojini Ramaswami v. Union of India, (1992) 4 SCC 506.

184.

18. Smet. Indira Nehru Gandhi v. Shri Raj Narain, AIR 1975 SC 2299. 19. Sowdambigai Motor Service v. State of Tamil Nadu, MANU/TN/0743/1979:

(1980) 1 MLJ 82.

20. Sub-committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699.

21. Surendra Mohanty v. Nabakrishna Chaudhury, AIR 1958. 168. 22. Tej Kiran Jain and Ors v. N. Sanjiva Reddy and Ors, AIR 1970 SC 1573: [1970] 2 SCC 272: [1971] 1 SCR 612.

23. Thankamma v. The Honourable Speaker, Legislative Assembly, Travancore-Cochin State and Anr, AIR 1952 Trav-Cochin 166.

SECTION II

SUMMARY OF CASES

Case |

A. K. Roy and Ors v. Union of India and Ors AIR 1982 SC 710, 1982 CriLJ 340: 1981(4) SCALE 1904: (1982)1SCC 271: [1982] 2 SCR 272: MANU/SC/0051/1981 Y. V. CHANDRACHUD, C. J., D. A. Desai, P. N. BHaGwati, V. D. TULZAPURKAR AND A. C. Gupta, J. J.

Date of Judgment: 28.12.1981

FACTS-IN-BRIEF

A group of writ petitions under Article 32 of the Constitution challenging the validity of the National Security Ordinance, 1980, and certain provisions of the National Security Act, 1980. A writ petition filed by Shri A. K. Roy, a Marxist Member of Parliament, who was detained under the ordinance by an order passed by the District Magistrate, Dhanbad, on the ground that he was indulging in activities which were prejudicial to public order. Ten Members of Parliament—an Independent and the others belonging to various political parties in opposition—applied for permission to intervene in the writ petition on the ground that since the ordinance-making power of the President is destructive of the system of parliamentary democracy, it is necessary to define the scope of that power. ISSUE

Whether an ordinance made by the President under Article 123 can be treated as a ‘law’ made by Parliament? DECISION

Article 123 of the Constitution deals with the President’s power to promulgate ordinances and the nature and effect of an ordinance promulgated under that article.

154

Summary of Cases

Since the act in question is a measure of preventive detention, it cannot be challenged on the broad and general ground that such acts are calculated to interfere unduly with the liberty of the people.

SUMMARY OF THE JUDGMENT (This summary is made keeping in mind the single issue at hand though the original

petition has several issues of constitutional importance.)

The arguments advanced on behalf of the various petitioners can be broadly

classified under six heads:

(i) The scope, limits and justiciability of the ordinance-making power. (ii) The validity of preventive detention in the light of the severe deprivation of personal liberty which it necessarily entails.

(iti) The effect of the non-implementation of the Forty-fourth Amendment insofar as it bears upon the Constitution of the Advisory Boards. (iv) The vagueness of the provisions of the National Security Act, authorising the

detention of persons for the reasons mentioned in Section 3 of the act. (v) The unfairness and unreasonableness of the procedure before the Advisory Boards.

(vi) The unreasonableness and harshness of the conditions of detention.

Shri R. K. Garg, appearing for the petitioners, challenged the power of the President to issue an ordinance depriving any person of his life or liberty. He contended that

the power to issue an ordinance is an executive power, not a legislative power; and the

ordinance is not ‘law’ because it is not made by an agency created by the Constitution

for making laws, and no law can be made without the intervention of the legislature. To

the court, in view of the clear and specific provision of the Constitution bearing upon this question, it was impossible to accept Shri Garg’s contention that an ordinance made by the President is an executive and not a legislative act. After going through

various documents including constitutional assembly debates, the court said:

The heading of Chapter III of Part V is “Legislative Powers of the President”. Clause (2) of Article 123 provides that an ordinance promulgated under Article 123

“shall have the same force and effect as an Act of Parliament”. The only obligation on the Government is to lay the ordinance before both Houses of Parliament and the only distinction which the Constitution makes between a law made by the Parliament

and an ordinance issued by the President is that whereas the life of a law made by the Parliament would depend upon the terms of that law, an ordinance, by reason

of Sub-clause (a) of Clause (2), ceases to operate at the expiration of six weeks from

the reassembly of Parliament, unless resolutions disapproving it are passed by both Houses before the expiration of that period ... Any reference in this Constitution

to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the

Legislature of a State, shall be construed as including a reference to an Ordinance made by the President or, to an Ordinance made by a Governor, as the case may be.

A. K. Roy and Ors v. Union of India and Ors

155

An ordinance issued by the President or the Governor is as much a law as an act passed

by Parliament and is, fortunately and unquestionably, subject to the same inhibitions. In those inhibitions, lies the safety of the people. The debates of the Constituent Assembly (Vol. 8, Part V, Chapter III, pp. 201-17) would show that the power to issue ordinances was regarded as a necessary evil. That power was to be used to meet extraordinary situations and not perverted to serve political ends. The Constituent

Assembly held forth, as it were, an assurance to the people that an extraordinary power shall not be used in order to perpetuate a fraud on the Constitution which is conceived

with so much faith and vision. That assurance must in all events be made good and the balance struck by the founding fathers between the powers of the Government and

the liberties of the people not disturbed or destroyed. Another contention of Shri Garg is that even assuming that the power to issue

ordinances is legislative and not executive in character, ordinance is not ‘law’ within the

meaning of Article 21 of the Constitution. That article provides that ‘No person shall

be deprived of his life or personal liberty except according to procedure established by law’. It is contended by learned counsel that the decision of this court in A. K. Gopalan, [1950] SCR 88 establishes that the supremacy of the legislature is enshrined in Article

21 as a fundamental right in order to afford protection to the life and liberty of the people against all executive powers and, therefore, the supremacy of the legislature

cannot be replaced by making the executive supreme by allowing it to promulgate ordinances which have the effect of depriving the people of their life and liberty. These

contentions of Shri Garg stand answered by what we have already said about the true nature and character of the ordinance-making power. The contention that the word ‘law’ in Article 21 must be construed to mean a law made by the legislature only and cannot include an ordinance, contradicts directly the express provisions of Articles

123(2) and 367(2) of the Constitution. Besides, if an ordinance is not law within the

meaning of Article 21, it will stand released from the wholesome and salutary restraint imposed upon the legislative power by Article 13(2) of the Constitution.

As per the court, the contention that the procedure prescribed by an ordinance

cannot be equated with the procedure established by law was equally unsound. The word ‘established’ is used in Article 21 in order to denote and ensure that the

procedure prescribed by the law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation. The fact that any particular law has a temporary duration

is immaterial for the purposes of Article 21 so long as the procedure prescribed by it is definite and reasonably ascertainable. In fact, the Preventive Detention laws were in

their inception ofa temporary character since they had a limited duration. They were only extended from time to time. The court relied upon the observations of Dr Ambedkar in the Constituent Assembly in this context. ‘Now, any law made in the ordinary process by the legislature

is made subject to the provisions contained in the Fundamental Rights articles of this Draft Constitution. That being so, any law made under the provisions of Article 102

would also be automatically subject to the provisions relating to fundamental rights

156

Summary of Cases

of citizens, and any such law therefore will not be able to over-ride those provisions

and there is no need for any provision as was suggested by my friend, Mr Pocker in his amendment

No.

1796’ (p. 214). It may be mentioned that Draft Article 102

corresponds to the present Article 123 of the Constitution. Another answer to Shri Garg’s contention is that Article 21 emphasises that the deprivation of the right to life

or liberty must be brought about by a State-made law and not by the rules of natural

law (see Certain and Anr enacted

A. K. Gopalan [supra] at pages 111, 169, 199, 229, 236 and 308, 309), representative decision, including M.S. M. Sharma v. Shri Krishna Sinha has been mentioned to illustrate that Article 21 takes cases other than those by the legislatiors. The court therefore rejected the contention that ordinance

is not ‘law’ within the meaning of Article 21 of the Constitution. There

is no substance

in the argument

that the ordinance-making

power,

if

extended to cover matters mentioned in Article 21, will destroy the basic structure

of the separation of powers as envisaged by the Constitution. In the first place,

Article 123(1) is a part of the Constitution as originally enacted; and secondly, our

Constitution does not follow the American pattern of a strict separation of powers. We may here take up for consideration some of the submissions made by Shri Tarkunde on the validity of the National Security Ordinance. He contends that the power to issue

an ordinance under Article 123 is subject to the pre-conditions that circumstances must exist which render it necessary for the President to take immediate action. The

power to issue an ordinance is conferred upon the President in order to enable him to act in unusual and exceptional circumstances. Therefore, according to Shri Tarkunde, unusual and.exceptional circumstances must be shown to exist, they must be relevant on the question of the necessity to issue an ordinance, and they must be such as to

satisfy a reasonable person that, by reason thereof, it was necessary to take immediate

action and issue an ordinance. The legislative power to issue an ordinance being conditional, the question as regards the existence of circumstances which compelled

the issuance of ordinance is justiciable and it is open to this court, says Shri Tarkunde, to determine whether the power was exercised on the basis of relevant circumstances

which establish the necessity to take immediate action or whether it was exercised

for a collateral purpose. In support of this contention, Shri Tarkunde relies on the circumstance that the amendment introduced in Article 123 by the Thirty-eighth Constitution Amendment Act, 1975, was deleted by the Forty-fourth Constitution

Amendment Act, 1978. Section 2 of the Thirty-eighth Amendment Act introduced Clause (4) in Article 123 to the following effect:

Notwithstanding anything in this Constitution, the satisfaction of the President

mentioned in clause (1) shall be final and conclusive and shall not be questioned in

any court on any ground.

This amendment was expressly deleted by Section 16 of the Forty-fourth Amendment Act.

Another contention raised in this case is that the question whether the preconditions of the exercise of the power conferred by Article 123 are satisfied cannot

A. K. Roy and Ors v. Union of India and Ors

157

be regarded as a purely political question. The doctrine of the political question was evolved in the United States of America on the basis of its Constitution which has adopted the system of a rigid separation of powers, unlike ours. In fact, that is one of the principal reasons why the US Supreme Court had refused to give advisory opinions. In Baker v. Carr, Brennan J. said that the doctrine of political question was ‘essentially a function of the separation of powers’. There is also a sharp difference in the position and powers of the American President on one hand, and the President of India on the other. The President of the United States exercises executive power in his own right and is responsible not to the Congress but to the people who elect him. In India, the executive power of the Union is vested in the President of India, but he is obliged to exercise it on the aid and advice of his Council of Ministers. The President's ‘satisfaction is therefore nothing but the satisfaction of his Council of Ministers in whom the real executive power resides. It must also be mentioned that in the United States the doctrine of the political question has come under a cloud and has been the subject matter of adverse criticism. It is said that all that the doctrine really means is

that in the exercise of the power of judicial review, the courts must adopt a ‘prudential’

attitude, which requires that they should be wary of deciding upon the merit of any

issue in which claims of principle as to the issue and claims of expediency as to the power and prestige of courts are in sharp conflict. The result, more or less, is that in America the phrase ‘political question’ has become ‘a little more than a play of words’. The two surviving contentions of Shri Garg—that the power to issue an ordinance can operate on virgin land only, and that Articles 14, 19 and 21—will be reduced to a dead letter if the executive is permitted to take away the life or liberty of the people by an ordinance, need not detain us long. The Constitution does not impose by its terms any inhibition on the ordinance-making power that it shall not be used to deal

with a subject matter which is already covered by a law made by the legislature. There is no justification for imposing any such restriction on the ordinance-making power,

especially when an ordinance, like any law made by the legislature, has to comply with the mandate of Artice 13(2) of the Constitution. Besides, legislative activity, properly so-called, has proliferated so enormously in recent times that it is difficult to discover a virgin land or a fresh field on which the ordinance-making power can operate, as if on a Clean slate. Shri Jethmalani attacked the constitutionality of the very National Security Act

itself on the ground that it is a draconian piece of legislation which deprives people of their personal liberty excessively and unreasonably, confers vast and arbitrary powers

of detention upon the executive, and sanctions the use of those powers by following a procedure which is unfair and unjust. It was also answered negatively by the court.

Case 2

A. K. Subbaiah v. Ramakrishna Hedge and Ors AIR 1994 Kant 35: ILR 1993 KAR 2528: 1993 (4) KarLJ 205 S. B. Maymupakr, C. J. AND S. VENKATARAMAN, J. Date of Judgment: 20.08.1993

FACTS-IN-BRIEF

The respondent, the writ petitioner, was elected on 27 November 1989 as a Member of the Karnataka

Legislative Assembly

from

Basavanagudi

Constitutency. Almost

simultaneously, he was appointed as Deputy Chairman of the Planning Commission, a post which is equivalent to the rank of a Cabinet Minister. This post of Deputy Chairman has been in existence as an independent post or office answering the description of a cadre post, entitling the incumbent of the ofhce several benefits including salary, perquisites, etc, The Karnataka Legislature enacted an act known as the Karnataka Legislature (Prevention of Disqualification) Act, 1956. This act came

into force on and from 24 January 1957. Section 3 of the act provides for removal of certain disqualifications, adding a proviso regarding non-application of the removal of disqualifications to certain offices. On 30 December 1989, the appellant (in the present case) submitted a Memorandum

to the Governor of Karnataka urging him

to exercise his power under Article 192 of the Constitution of India to disqualify the

first respondent as a Member of the Legislative Assembly. The writ appeal is directed

against the judgment and order rendered by the learned Single Judge, in writ petition of 1991. The writ petition was moved by respondent no. | herein, challenging the

order of the Governor of Karnataka passed under Article 192(1) of the Constitution of India, holding that respondent no. | (the writ petitioner) had become disqualified from being a Member of the Karnataka Legislative Assembly. The said decision was

rendered by the Governor on the basis of the opinion of the Election Commission to that effect. The learned Single Judge took the view that the said decision of the

A. K. Subbaiah v. Ramakrishna Hedge and Ors

159

Governor was erroneous and was liable to be set aside by issuance of a writ under

Article 226 of the Constitution. ISSUE

Whether the Single Judge of the high court was correct in setting aside the order of disqualification by the Governor of Karnataka under Article 192(2), which was

rendered on the basis of the opinion of the Election Commission to that effect? DECISION

The decision of the Single Judge is correct. The reason being there was no evidence before the commission which could even remotely indicate that respondent no. 1 was a holder of an office of profit. Hence the opinion of the Election Commission must be held to be based on no evidence and is such which no reasonable man could have

arrived at on this state of evidence. The automatic confirmation of this opinion by the Governor under Article 192(2) is equally based on no evidence.

SUMMARY OF THE JUDGMENT The contention of the appelant was that first respondent was a holder of an office of profit under the Central Government as he was appointed as Deputy Chairman of the Planning Commission. The post carried remuneration by way of salary, perquisites,

etc. The Governor, before taking a decision, referred the complaint to the Election

Commission, under Article 192(2) of the Constitution, for its opinion. The Election

Commission, after hearing the concerned parties, on 5 December 1989, came to the conclusion that the first respondent was disqualified to act as a Member of the

Legislative Assembly, as from the day he had assumed office of the Deputy Chairman of the Planning Commission. On the basis of the said opinion, the Governor of Karnataka, on 6 August,

1991, issued an order in exercise of his power under

Article 191(1) of the Constitution, disqualifying the first respondent to function as Member of the Legislative Assembly. That action of the Governor brought the first respondent to the court in writ petition of 1991 dated 6 August1991 seeking a writ in the nature of certiorari for quashing the said order of the Governor of Karnataka. On 17 September 1992, after hearing the contesting parties, the learned Single Judge quashed the order of the Governor by issuing a writ of certiorari. It is this order, as noted earlier, which resulted in the present writ appeal.

Prior to the passing of the order by the Governor on 6 August 1991, during the pendency of the proceedings before the Election Commission, the appellant had earlier filed a writ petition seeking direction to the Election Commission to proceed with the reference expeditiously. Bur, that petition was dismissed by the learned Single Judge. It was observed by the learned Single Judge that respondent no. 1 had not

160

Summary of Cases

incurred any such disqualification as alleged. That order was challenged before the Division Bench that set aside the aforesaid finding of the learned Single Judge and directed the Election Commission to dispose of the reference at an early date, on

which the Election Commission decided the reference, resulting in the impugned order passed by the Governor.

Learned counsel for respondent | refuted these contentions and submitted that

the view taken by the learned Single Judge is the only view which can be taken on the

facts of this case and it requires no interference.

The court carefully examined the constitutional provisions of Article 102(1)(a), 102(2) 103(1) and 103(2) and said as follows: (i) There is a parallel scheme

for membership

in Articles

191

of Legislative Assembly

and

192, so far as disqualifications

or Legislative Council

is concerned.

Article 191(1) provides that a person shall be disqualified for being chosen as, and

for being, a Member of the Legislative Assembly or Legislative Council of a State, if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder. Article 191(2) lays down

that a person shall be disqualified for being a Member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule. Article 192(1) provides that if any question arises as to whether a Member of a House of the Legislative ofa State has become subject to any of the disqualifications

mentioned in Article 191, the question shall be referred for the decision of the

Governor and his decision shall be final. Article 192(2) provides that before giving

any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.

(ii) Thus

it becomes

at once clear that the scheme

regarding disqualification

for

membership of either House of Parliament is parallel to the scheme regarding disqualification from membership of Legislative Assembly or Legislative Council and in one case it is the President who on the opinion of the Election Commission can take decision which shall be final. In the other case it is the Governor, who after obtaining the opinion of the Election Commission, has to decide which decision also shall be final.

(iii) Article 191(1)(a) provides that the legislature of the State by law may declare a

particular office the holding of which may not disqualify its holder, meaning thereby

the holder of such an office may get excluded from the sweep of Article 191(1) (a). The State of Karnataka has enacted the act, to declare certain offices of profit

not to disqualify their holders for being chosen as, or for being, Members of the Karnataka Legislative Assembly and the Karnataka Legislative Council.

Another argument was that the scope of judicial review as per the relevant constitutional

scheme flowing from Article 192(1), there is finality attached to the decision of the

Governor regarding the disqualification of a Member of Legislative Assembly like

respondent | and once that decision is rendered, the scope of judicial review of that

A. K. Subbaiah v. Ramakrishna Hedge and Ors

161

decision is extremely limited and the high court cannot sit as a court of appeal against such a decision. This contention will have to be examined in the light of the settled legal position. In reference to the several Supreme Court judgments like Union of India v. Jyoti Prakash Mitter, AIR 1991 SC 1093, and Kihota Hollohon v. Mr Zachilhu, AIR 1993 SC 412 the laid down position are the following: (i) Despite the finality attached to the decision of the President under Article 217(3),

a judicial review of such decision can be held on the grounds. If it is found that the President’s Judgment was based on no evidence, the court can interfere but the

court cannot sit as the court of appeal or determine the weight which should be

attached to the evidence. Appreciation of evidence is entirely left to the President and not to the court. Also, that the decision of the President in the aforesaid case was held to be in the discharge of judicial function. Therefore it would be amenable to a writ of certiorari which can be issued by a court in an appropriate

case if it is found that the decision of the President under Article 217(3) was based

on no evidence.

(ii) Regarding the limits of judicial review of the decision of the Speaker of Assembly

arrived at under Tenth Schedule of the Constitution, it was observed that the scope of judicial review under Articles 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under paragraph 6 would be confined to jurisdictional errors only, viz. infirmities based on violation of constitutional mandates, malafides, non-compliance with rules of natural justice and perversity. Also to note that despite the mandate of Clause (7) of the Tenth

Schedule, that notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a Member of a House under this Schedule and despite finality of the decision of the Speaker of each House, as per Clause 6(1). The aforesaid scope of judicial review was clearly laid down by the constitutional bench of the Supreme Court.

(iii) It cannot be held that merely because a decision had been arrived at under Article 192(1), no writ petition be filed. But to what extent in such proceeding,

on being initiated, a petitioner could secure relief, would depend upon himself establishing about the existence of the vitiating factors namely if it appears that the order was passed by the Governor (a) on collateral considerations or (b) the

rules of natural justice were not observed or (c) that the Governor's judgment

was coloured by the advice or representation made by the executive, or (d) it was founded on no evidence. Further, if a constitutional functionary, whom power

had been conferred to take a decision which has the seal of finality, wrongly interprets the constitutional provisions, then, the decision so arrived at will have to be set aside by issue of a writ of certiorari, because it would not be a valid order in the eye of law. Hence, there can be a judicial review of an order passed

under Article 192(1) on this ground also (K. S. Haja Shareffv. His Excellency the Governor of Tamil Nadu, Madras, AIR 1985 Madras 55). —_

-

.

oe

162

Summary of Cases

This contention of the appellant is that the resolution to appoint respondent 1 only earmarked respondent | for being the Deputy Chairman of the Planning Commission but the terms and conditions of his appointment are found in the appointment order dated 13 December1989. It is nobody's case that this post was held on daily wage basis.

Therefore the salary, if any, would necessarily have been paid at the end of the month.

Even though the terms of appointment were defined on 13 December 1989, the salary

for the month of December from the day he assumed charge of his office would have been paid after 31 of December 1989, i.e. on 1 January, 1990. Consequently, it could

not be said that respondent 1 held an office which would entitle him to any salary

between 5 January 1989 and

13 December

1989. On the contrary, on a conjoint

reading of the appointment order with the earlier resolution, it must be held that

respondent | was not entitled to draw any salary for the post of Deputy Chairman

of the Planning Commission. The issue whether respondent | actually started work

as Deputy Chairman of the Planning Commission by assuming charge of his office between 5 January 1989 and 13 December 1989 pales into insignificance so far as the

question whether he was holding any office of profit is concerned.

For the reasons above, the submission of learned counsel for the appellant even on the merits was found to be without any substance. The appeal was dismissed.

Case 3

A. Kunjan Nadar v. The State AIR 1955 TC 154 Kosut, C. J. AND J. MENON Date of Judgment: 07.01.1955

FACTS-IN-BRIEF

The petitioner, a Member of the Travancore-Cochin Legislative Assembly, was arrested and kept in police custody from 12 August 1954. A writ of mandamus was filed by the petitioner for directing the State to enable him to attend the Legislative Assembly session which was commencing from 25 January 1955. ISSUES

1. Whether the provision regarding detention is subordinate to an MLA’s right to attend the session? 2. Whether the danger of losing seat or losing the daily allowances of an MLA form any foundation for relief against detention? 3. Whether a writ of mandamus can be issued directing the State to enable a detenu to attend the session? DECISION

If the arrest and detention of an MLA is legal and under due process of law, he cannot claim that his detention should be subordinated to his right to attend the proceedings in the House. There is no statutory provision for any mandamus to direct the State to enable a detenu to attend the session. As long as the detention is legal, the dangers

of losing a seat under Article 140 or losing the daily allowance cannot form the foundation of any relief against detention. _

-

.

oe

164

Summary of Cases

SUMMARY OF THE JUDGMENT As per the petitioner, he had a paramount right to attend the session. According to

him, though his detention is legal and under due process of law, the detention is

subordinated to the right to attend the proceedings. Hence, a mandamus directing the State Government to permit him to take part in the proceedings is tenable. It was also

argued by the petitioner that, though to a Member of the House of Commons in the

United Kingdom, the right to participate in the proceeding is unavailable in the event of criminal cause, in India there exists a wider privilege by virtue of Articles 190(3) (a) and 191(1)(e) of the Constitution and Section 7(b) of the Representation of the

People Act, 1951. However, the court could not find any substance or relevance in the petitioner’s argument. The petitioner had alternatively prayed for grant of bail and permission to attend the session under police escort. The court observed that such a prayer cannot be entertained in a writ.

Case 4

A. M. Paulraj v. The Speaker, Tamil Nadu Legislative

Assembly, Madras and Anr

MANU/TN/0197/1986: AIR 1986 Mad 248 M. N. CHANDURKAR, C. J., V. RAMASWAMI AND Natarajan, J. J.

Date of Judgment: 17.12.85

F ACTS-IN-BRIEF

The editor of a Tamil monthly magazine published acidic remarks against the Tamil

Nadu Legislative Assembly. The House took objection to this and referred the matter

to the Privileges Committee. The Privileges Committee, after holding that the editor was indeed guilty of contempt of the House, recommended a simple sentence of two weeks as punishment. But before the Seventh Legislative Assembly could consider the recommendation of the Privileges Committee, the Assembly was dissolved. Subsequently,

the

Eighth

Assembly

considered

the above

recommendation

and

decided that the editor was to be sentenced for two weeks. The editor challenged

the said decision before the high court under Article 226 of the Constitution. The

contention raised on behalf of the petitioner was that as a result of the dissolution of the Seventh Legislative Assembly the proceedings referred to the Privileges Committee

had lapsed and that the succeeding Eighth Legislative Assembly had no jurisdiction to continue to prosecute the said matter. The learned Single Judge of the high court, though he conceded that the decision

of the Assembly could be challenged under Article 226, held that the issue in question concerned an irregularity of procedure, which was barred from judicial review by Article 212 of the Constitution. The said ruling was challenged before the Constitutional Bench of the high court in appeal.

166

Summary of Cases

ISSUES

1. Whether a decision of the Legislative Assembly could be challenged under Article 226?

2. Did the proceedings before the Seventh Assembly lapse with the dissolution of the Assembly and, consequently, was the decision of the Eighth Assembly to punish the appellant void?

3, Whether the non-conformity of the action of the legislature with strict procedure lead to the violation of the fundamental right of the appellant under Article 21? DECISION

It was clearly open to the Eighth Legislative Assembly to take up the matter with

regard to the breach of privilege from the stage when the report was already made to the Speaker of the House.

SUMMARY OF THE JUDGMENT At the outset, the court expressed regret at the fact that the Assembly did not wish to have itself represented in court under a belief that any action taken by the courts

which went against the privilege of the Assembly would be contempt of the latter. The

court said that after the decision of the apex court in /n Re: Reference under Art. 143 the issue was well settled that the court would not be in contempt of the Assembly merely by entertaining a petition under Article 226 challenging an action of the Assembly. According to the court, the dispute was between a citizen and the House and not between the court and the House. Before entering into the merits, the preliminary question to be considered was

with respect to the maintainability of a petition under Article 226. According to the court, the appellants have taken a plea (though it is not clear from the decision whether such a plea was taken before the learned Single Judge) that the action of the House was violative of Article 21 of the Constitution. Relying on /n Re: Under Art. 143, Constitution of India,’ it was held: It is, therefore, settled law for more than twenty years now, that where a petitioner approaches a court contending that as a result of a committal to civil prison by the

Legislature for breach of privilege his fundamental right under Art. 21 has been

violated, such a petition cannot be thrown out at the very threshold merely on the ground that the decision of a House of Legislature on an issue of privilege is

being challenged. There is nothing in the Constitution which disabled a citizen who complains of a violation of his fundamental right under Art. 21 of the Constitution

from filing a petition under Art. 226 of the Constitution. The entertaining of a petition under Art. 226 in such a case or entertaining of an appeal against an order

' MANU/SC/0048/1964: AIR 965 SC 745.

A. M. Paulraj v. The Speaker, Tamil Nadu Legislative Assembly, Madras and Anr — 167

dismissing such a petition need not, therefore, be taken as an affront either to the Speaker of the Legislative Assembly or the Legislative Assembly itself.

Moving to the merits of the case, the core question involved here was whether the proceedings before the Seventh Assembly got totally wiped out with the dissolution of the Assembly. This brought the court to familiar territory where it was to assess the extent and existence of a privilege of the House to carry over proceedings from one Assembly to another. The appellants made a contention that the House was a continuing institution and did not change with changing assemblies. The court did not directly answer the question. Instead, referred to learned authorities on parliamentary practices in England and India to find out the convention existing at the time of ‘commencement of the Constitution’, which they thought would be the same custom that existed prior to the Forty-fourth Amendment to the Constitution. After a careful assessment of authorities such as May, as well as Kaul and Shakdher’s Practice and Procedure of Parliament, it was held as under: The position that a breach of privilege in one Parliament can be punished in another succeeding Parliament seems to be beyond doubt in England. Consequently, this has to be considered as privilege of the House of a Legislature to punish for contempt or breach of privilege of a Legislature which has been dissolved. It is also important to note that this position is recognised by the Indian Parliament in Mrs. Indira Gandhi's

case. This would also mean that even the Lok Sabha had considered that it has the power and privilege to punish a person for contempt of the earlier Lok Sabha. It would be permissible for a State Legislature to look in so far as the Parliamentary practice is concerned to the proceedings of the Lok Sabha and the proceedings of the Privileges Committee of the Lok Sabha. It therefore appears to us that the 8th Legislative Assembly had the power and jurisdiction to punish the petitioner for breach of privilege of the 7th Legislative Assembly.

At the same time, it is to be remembered that the court held, in an earlier part of the judgment, that as per English practice all the proceedings before the House came to nullity once the House was prorogued. The only exception was motions for

impeachment and appeal to the House of Lords. Deriving from this and referring to the learned authors on Indian parliamentary practice, it was held: While, therefore, there can be no doubt that as in England, the effect of dissolution is that all business pending for consideration before the Legislature will also lapse in India, the well-known exception that such dissolution does not affect the proceedings for impeachment has also been recognised in India and it is now well-understood

that where a committee has completed its business and made a report to the Speaker,

then, such a report can be considered by the succeeding House. This exception will

also take in the report of a Committee of Privileges of the previous House which has been made to the Speaker of the House before the Legislature was-dissolved.

The final question, which was essentially a corollary to the first question, was whether the action of the Assembly took away the fundamental right to life of the appellant guaranteed under Article 21 of the Constitution. The contention here is that the

168

Summary of Cases

Assembly blindly acted on the basis of the recommendation of the committee without giving a hearing to the appellant. The court negatived this contention and gave a twopronged argument. Firstly, it was held:

.. it is difficult for us to see how the decision of the Assembly could be challenged

on the ground that the petitioner was not heard. The rules framed under Art 208(1) of the Constitution do not provide for any such hearing. It is true that the privileges Committee had proposed a punishment of simple imprisonment for one week but the Legislative Assembly in the exercise of its powers under Art. 194(3) was entitled

to take a decision with regard to the term of imprisonment to be awarded to the petitioner. The decision of the Assembly cannot be challenged on the ground that

there was any irregularity in the procedure. Art. 212 of the Constitution creates an express bar against a challenge to any proceedings of the Legislature on the ground of alleged irregularity of procedure Secondly, the court was of the view: Apart from the fact that there does not appear to be any departure from the procedure prescribed by the rules under Art. 208(1) of the Constitution in view of the decision of the Supreme Court in Sharma's case, AIR

1960 SC 1186: [1961]

1

SCR 96: MANU/SC/0020/1960 cited supra, even though the Legislature may not have strictly complied with the requirements of the procedural law laid down for

conducting its business, that cannot be a ground for issuing a writ under Art. 226 of the Constitution. The question of punishment for a breach of privileges is a matter

exclusively within the jurisdiction of the Legislature and Art. 212 of the Constitution forecloses any scrutiny by the Court with regard to the procedure adopted by the Legislature. We may also point out that the Supreme Court in MZ. S. M. Sharma v. Sri Krishna Sinha,

MANU/SC/0021/1958:

AIR

1959

SC

395:

[959]

Supp

1

SCR 806 has clearly pointed out that where a person is deprived of his personal

liberty as a result of proceedings before the Committee of Privileges, such deprivation will be in accordance with the procedure prescribed by law.

The appeal was, therefore, dismissed.

Case 5

A. Swamickan v. K. Venkatachalam and Anr AIR 1987 Mad 60 M. N. CHANDURKAR, C. J. AND VENKATASWAMI, J.

Date of Judgment: 23.04.1986

F ACTS-IN-BRIEF General elections to the Legislative Assembly in Tamil Nadu took place in December

1984. Respondent no. 1 filed his nomination paper for election as a Member of the Legislative Assembly from Lalgudi Assembly constituency. On 27 November 1984, the proposer has stated in the nomination paper that the first respondent's name has

been entered at Serial No. 120 in part 9 of the electoral roll for the Lalgudi Assembly

constituency. In all, there were four nomination papers filed and in all these papers, while setting out the particulars of the first respondent as given in the electoral roll for the Lalgudi Assembly constituency, his serial number in the roll is given as 120. The first respondent has assented to all these nominations. These nomination forms are in

form 2B under R. 4 of the Conduct of Elections Rules, 1961. The first respondent has made a solemn first respondent by proceeded to stand the electoral roll for

On but was alleging electoral

declaration assenting to his nomination as an elector. Thus, the assenting to his nomination as ‘the above mentioned candidate’ for the election as an elector whose name is at Serial No. 120 in the Lalgudi Assembly Constituency.

22 November 1985, the petitioner, who was a candidate for the election defeated, however, filed a petition under Article 226 of the Constitution that the name of respondent no. 1 is not to be found as a voter in the roll for the general elections for any Assembly constituency. According to the

petitioner, the first respondent was thus not qualified to be a Member of the Tamil

Nadu Legislative Assembly as he was not an elector in the electoral list for the Lalgudi Legislative Assembly constituency. He therefore prays for a writ declaring that the first respondent is not qualified to be a Member of The Tamil Nadu Legislative Assembly

170

Summary of Cases

constituency or in the alternative a writ of quo warranto or any other appropriate direction directing the first respondent to show under what authority he is occupying the seat in the Tamil Nadu Legislative Assembly. ISSUE

Whether even when the high court is satisfied that a person who does not possess the basic constitutional and statutory qualification for being elected as a Member of the

Legislative Assembly, the high court is powerless to prevent him from performing his

functions as a Member of the Legislative Assembly only on the ground that no one

has chosen to challenge his election to the Legislative Assembly by filing an election petition under Section 80 of the Representation of the People Act, 1951? DECISION

A Member of the Legislative Assembly is a public functionary and even if a rival candidate who has been defeated at the election brings to the notice of this court that such a public functionary does not have the basic qualifications which are required under the Constitution to enable him to occupy the office of a public functionary,

and if on facts found this grievance is found to be correct, the court would be failing in its duty in declining to give effect to the provisions of Article 193 merely on the

ground that a person who has failed at the election has brought the material facts to the notice of this court and that he had not chosen to avail of the statutory remedy of challenging the election.

SUMMARY OF THE JUDGMENT Shri V. P. Raman, appearing on behalf of the first respondent has, however, vehemently

contended that he was proceeding to argue the matter without admitting or denying the facts and according to him even assuming that the facts as stated by the petitioner

were correct, the petitioner had not made out a case which warrants interference.

According to learned counsel, the first respondent had been declared duly elected; there was no evidence to show that any particular voter has been misled and there is also no evidence to show that a voter would not have voted for the first respondent. If he had known that the first respondent is not qualified to stand for the election, learned counsel contended that the petitioner was a candidate himself and he was present at the time of scrutiny, thus, he should have filed an election petition. No such election petition having been filed, this court cannot now interfere in view of the provisions of

Article 329(b) of the Constitution. Alternatively, it is argued that the first respondent

is duly qualified under Article 173. According to learned counsel, it is not the case of the petitioner that the first respondent does not satisfy the requirements of Clauses (a) and (b) of Article 173, i.e. it is not the petitioner's case that the first respondent is not

A. Swamickan v. K. Venkatachalam and Anr

a citizen of India or that he is less than 25 years of age. Learned counsel, contended that the first respondent was qualified to be registered as a voter, was qualified to be registered as a voter, then his nomination paper could been rejected. Finally, it is argued that since he has been declared elected and authority evidencing his election, a writ of quo warranto cannot be issued. However, the court was of the view that when the founding fathers Article

193 in the Constitution,

171

therefore, and if he not have he has an included

and also later included Article 329(b), we must

necessarily assume that the intention was that notwithstanding the election of a person as a Member of a Legislative Assembly and notwithstanding the specific bar under Article 329(b) preventing the election from being challenged except by an election petition, an enquiry was still permissible in a proceeding—other than an election

petition as to whether the elected candidate had the necessary qualifications prescribed by Article 173(c) of the Constitution because the absence of such qualifications made

the elected Member liable to penalty. The only way to harmonise both these provisions is to hold that any proceeding taken to give effect to Article 193 for a declaration that a person is not qualified for membership of the Legislative Assembly did not under the Constitution amount to calling in question an election as contemplated by Article 329(b) of the Constitution of India. The leave to appeal was rejected.

Case 6

Ajit Singh v. State (Delhi), Through CBI 1998 (3) SCALE 672: MANU/SC/0395/1998 S. C. AGRAWAL, G. N. Ray, A. S. ANAND,

S. P. BHARUCHA

AND S. RAJENDRA Basu, J. J.

Date of Judgment: 30.04.1998

FACTS-IN-BRIEF It was a review petition in which the petitioner took a bribe in connection with a noconfidence motion. He claimed immunity under Article 105(2) of the Constitution. ISSUE

Whether the petitioner can enjoy immunity under Article 105(2) for taking a bribe? DECISION The protection of Article 105(2) is not available to the review petitioner.

SUMMARY OF THE JUDGMENT In this review petition the Supreme Court, assuming that the review petitioner had voted for the no-confidence motion after taking the bribe, observed as below and dismissed the review petition: The criminal proceedings allege an agreement and bribe to vote against the noconfidence motion. Therefore, the protection of Article 105(2) is not available to the Review Petitioner.

Case 7

Amarinder Singh v. Special Committee, Punjab Vidhan Sabha and Ors Civil Appeal No. 6053 of 2008

JT 2010 (4) 350

2010 (4) SCALE 354 BALAKRISHNAN C. J., J. M. PANCHAL, R. M. Lopua,

R. V. RAVEENDRAN, P. SATHASIVAM, J. J.

Date of Judgment: 26.04.2010

FACTS-IN-BRIEF

In this case, the appellant, Captain Amarinder Singh, was the Chief Minister of State of Punjab and was elected as a Member of the Punjab Vidhan Sabha. The Punjab Vidhan Sabha passed a resolution, which directed the expulsion of the appellant from the Sabha. In the resolution, it was alleged that he was responsible for the improper exemption of a vacant plot of land which was licensed to a particular private party from a pool of 187 acres of land that had been notified for acquisition by the Amritsar Land Improvement Trust. A special committee of the Assembly was appointed to investigate into the matter which found him guilty. Consequently, the appellant was expelled for the remaining term of the Thirteenth Assembly and the Election Commission was asked to declare his seat vacant from the Sabha. Aggrieved by the findings of the report submitted by the Special Committee,

the appellant approached the Punjab and Haryana High Court and challenged the impugned resolution as well as the Special Committee’s Report. The high court did not grant a stay on the operation but granted protection to the appellant from custodial interrogation. Dissatisfied with the high court’s order the appellant approached the Supreme Court by way of a petition seeking special leave to appeal.

174

Summary of Cases

ISSUES

¢ Whether the resolution passed by the Punjab Vidhan Sabha directing the expulsion of the appellant for the remainder of the Thirteenth term of the Vidhan Sabha is constitutionally valid?

* Whether the alleged misconduct on the part of the appellant warranted the exercise of legislative privileges under Article 194(3) of the Constitution?

DECISION For the first issue the court held that the resolution passed by the Punjab Vidhan Sabha

directing the expulsion of the appellant (Amarinder Singh) for the remainder of the

Thirteenth term of the Vidhan Sabha is constitutionally invalid. The reasoning given by the court was that it was not proper for the Assembly to inquire into actions that took place during its previous term, especially when there was no repeatable business

that had lapsed from the previous term. A five-Judge Constitution Bench headed by Chief Justice K. G. Balakrishnan ordered for the restoration of the appellant's membership in the Punjab Vidhan Sabha.

For the second issue, a breach’ of privileges on account of the alleged misconduct which actually took place during the Twelfth term of the Vidhan Sabha the court responded that the legislature cannot exercise judicial power and hold a Member

guilty of criminal charges as the determination of a guilt is with in the domain of the executive powers. The legislative privileges under Article 194 are exercised to safeguard the integrity of legislative proceedings and the alleged misconduct of the appellant did not threaten the same in any manner.

SUMMARY OF JUDGMENT CORAM: K. G. Balakrishnan, J. M. Panchal, R. M. Lodha, R. V. Raveendran, P. Sathasivam

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 the part of the appellant had the same. The respondent had adopted a two-pronged line of reasoning. Firstly, they have asserted that the alleged misconduct on the part of the appellant amounted to a breach of privilege as well as the contempt of the House. Secondly, they have contended that since the

‘powers, privileges and immunities’ conferred on State Legislature by Article 194(3) of the Constitution have not been codified it would not be proper to pace limitations on their exercise. The implicit rationale is that Legislative Assemblies should retain flexibility in the exercise of the powers and the power to punish for contempt, so that they can tackle new and unforeseen impediments to their reputation and functioning.

Amarinder Singh v. Special Committee, Punjab Vidhan Sabha and Ors

175

‘The respondents have extensively relied on Raja Ram Pal. The Honble Speaker, Lok Sabha and Ors [2007 3 SCC 184] where that court had upheld the Lok Sabha’s power to expel its Members in view of misconduct in the nature of accepting bribes and the majority opinion of the court has also clarified that the exercise of parliamentary privileges in such cases was open to judicial scrutiny. The court rejected the plea of the Special Committee of the House and others which had said that the leader of the opposition Captain Singh’s action’s had lowered the dignity of the House which amounted to conduct unbecoming of a Member of the House, even though such conduct had no bearing on legislative functions. The

court pointed out that the underlying motive behind the expulsion was not merely that of punishment but also to remove a Member who was seen as unfit to continue as a Member of the legislature. It added a note of caution that ‘expressions such as “lowering the dignity of the House’, ‘conduct unbecoming of a member of the House’ and ‘untimeliness of a member’ are openly-worded and abstract grounds which if recognised, will trigger the indiscriminate and disproportionate use of legislative privileges by incumbent majorities to target their political opponents as well as dissidents’. The court further observed: It is our considered view that the Vidhan Sabha exceeded its powers by expelling the appellant on the ground of a breach of privilege when there existed none. The alleged improper exemption of land was an executive act attributable to the appellant and it did not distort, obstruct or threaten the integrity of legislative proceedings in any manner. Hence the exercise of legislative privileges under Article 194 (3) was not proper in the present case.

On the contention that courts could not inquire into matters related to irregularities in observance of procedures before the legislature, the court held that the court could

examine whether proceedings conducted under Article 105(3) or 194(3) are ‘tainted

on account of substantive or gross illegality or unconstitutionality’. The instant case does not merely touch on such a procedural irregularity. Quoting the judgment in Raja Ram Pal’s case, upholding the expulsion of certain Members of Parliament involved in the cash-for-query scam, the Bench said the judiciary was not prevented from scrutinising the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens.

Case 8

Anand Bihari Mishra v. Ram Sahay AIR (39) 1952 Madhya Bharat 31 SHINDE C, J. AND Dixit J.

Date of Judgment: 12.10.1951

FACTS-IN-BRIEF In April

1948,

the Rulers of Gwalior,

Indore and certain other States in Central

India entered into a covenant and formulated Madhya Bharat. In the Assembly election conducted under the Interim Legislative Ordinance promulgated by the then Raj Pramukh, the counter petitioner Shri Ram Sahay became the President

of the Assembly. The Interim Legislative Assembly was governed by the Interim

Legislature Act (Act No. 23 of 49) and Shri Ram Sahay was the duly elected Speaker of the Assembly under Section 8 of the act. Just before the commencement of the Constitution of India, Shri Ram Sahay did take an oath before the Raj Pramukh on

26 January 1950, describing himself as the Speaker of the Legislative Assembly and

declaring that he would bear true faith and allegiance to the Constitution of India by

the law established and he would faithfully discharge his duties as the Speaker. After the commencement

of the Constitution,

the petitioner Shri Anand

Bihari Mishra,

advocate and Member of the Interim Legislative Assembly, Madhya Bharat, filed a petition under Article 226 of the Constitution of India for the issue ofa writ in the nature of quo warranto against Shri Ram Sahay to show cause as to by what authority he was functioning as the Speaker of the Madhya Bharat Legislative Assembly and was exercising and performing the powers, duties and functions which may be performed or exercised by the Speaker under the Constitution and for the issue of an injunction restraining the non-applicant from functioning as the Speaker and exercising and performing the powers, duties and functions of the Speaker.

Anand Bihari Mishra v. Ram Sahay

177

ISSUES

1. Does a failure by a Member/Speaker to make the oath ipso facto render his seat vacant?

2. Can the Members or the Speaker of the Interim Legislative Assembly constituted before the commencement of the Constitution of India validly continue to be the Members or Speaker of the said Assembly even after the commencement of the Constitution?

DECISION

If the Members or the Speaker had taken an oath in accordance with the provisions of

Interim Legislative Assembly Act, they can validly continue to be Members or Speaker of the said Assembly even after the commencement of the Constitution. If the oath under Article 188 is not taken, a Member does not cease to be a Member. Failure to

make the oath does not ipso facto render the seat vacant.

SUMMARY OF THE JUDGMENT The contention of the petitioner was that as Shri Ram Sahay has not taken an oath

or affirmation in the manner prescribed under Article 188 he is not entitled to take

his seat in the Assembly, and he therefore cannot continue in the office of Speaker.

The petitioner's grievance was not that Shri Ram Sahay did not take any oath at all

but that the oath which he took on the 26 January 1950 before the Raj Pramukh was not in accordance with the prescribed form. In reply, the learned Advocate General contended that even if he did not take an oath strictly conforming to the prescribed form, by that omission his seat in the Assembly or the office of the Speaker did not become vacant. As per Shinde J., Article 188 is essentially meant to apply to legislatures constituted under the Constitution. It does not apply to old legislatures continued by virtue of Articles 372 and 285. If the Members or the Speaker had taken oath in accordance with the provisions of the Interim Legislative Assembly Act, they can validly continue

to be Members or the Speaker of the said Assembly even after the commencement of the Constitution.

The petitioner also prayed the court to hold that the office of Speaker of the Assembly has fallen vacant. Regarding this issue, it was held that if the oath is not taken under Article 188, a Member does not cease to be a Member. The penalty is prescribed

in Article 193. Even under Section 11 of the Interim Legislative Assembly Act, the Government has been given discretion to declare his seat vacant. But the failure to make the oath does not ipso facto render his seat vacant. Under these circumstances, even ifa Member did not take the requisite oath, the information would be futile in its results and hence no information in the nature of a quo warranto would be given.

178

Summary of Cases

Furthermore, it is open to the House to exclude a Member who has not made an oath or affirmation under Article 188 and to declare his seat vacant under Article 190(4). On the other hand, if such a Member persists in taking his seat the House can initiate appropriate proceedings under Article 193 against the Member. The petitioner further argued that the legislature contemplated by Article 385 is a new legislature and it is this new legislature that is empowered to exercise powers under the Constitution. This argument, as per Dixit J., in the face of the clear wordings of Article 385, was not tenable. Article 385 states that the body or authority functioning as the legislature is to exercise the powers under the Constitution. Until the House of the Legislature has been duly constituted and summoned to meet for the first session

under the provisions of the new Constitution, the body or authority functioning immediately before the commencement of the Constitution as the legislature can

exercise the powers and perform the duties conferred by the Constitution in the House of the Legislature of the State. This article makes it abundantly clear that the

body functioning as the legislature is to exercise the power and perform the duties

conferred by the Constitution. It does not contemplate creating a new body under the Constitution to function as the legislature. The old one has been empowered to

function as the duly constituted legislature under the provisions of the Constitution. The question of electing a Speaker, therefore, does not arise at all. Obviously, in the opinion of the learned Judge, the body functioning as the legislature includes even the Speaker. Hence, the court held that Article 385 does not create a new legislature. It gives power to the old legislature to exercise powers under the Constitution. Regarding the issue of vacancy of the Speaker's seat, it was observed that even if it be conceded that Article 178 is applicable to the Interim Legislative Assembly, election of a Speaker is not necessary as the office has not fallen vacant. Further, Article 385 empowers the old legislatures to exercise powers under the Constitution. As Article 385 intended to continue the entire legislative machinery it was not necessary to elect a Speaker on the commencement of the Constitution. On the second contention of the petitioner, that Shri Ram Sahay did not take the requisite oath and hence his occupation of the office is illegal, it was answered that Article 188 is essentially meant to apply to legislatures constituted under the

Constitution. It does not apply to old legislatures continued by virtue of Articles 372 and 385. If the Members or the Speaker had taken an oath in accordance with the provisions of the Interim Legislature Act, they can validly continue to be Members or the Speaker of the said Assembly even after commencement of the Constitution.

Case 9

Anand Mohan v. Union of India and Ors AIR 1985 All114 S. K. DHAON AND S. K. MOOKERJI, J. J.

Date of Judgment: 11.12.1984

F ACTS-IN-BRIEF The petitioner, who claims to be a social worker, has invoked the extraordinary

jurisdiction under Article 226 of the Constitution by initiating a so-called public

interest litigation, to set at naught the process already commenced for constituting the

Eighth Lok Sabha. The term of the Seventh Lok Sabha was to expire on 20 January 1985. The President, on 20 November 1984, issued a notification published in the Gazette of India (Extraordinary) whereby in the purported exercise of powers as contained in Sub-section (2) of Section 14 of the Representation of the People Act, 1951, he called upon all parliamentary constituencies (other than those within the States of Assam and Punjab) to elect Members of a new House of the People. The petitioner questions the jurisdiction of the President to issue such a notification before 20 January 1985. According to the petitioner, the President could take such an action only after the life of the existing House of the People came to an end. ISSUE

Can the President call upon all parliamentary constituencies to elect Members of a new House of the People before the life of the existing House of the People has come to an end? DECISION

A general election can take place for the purpose of constituting new House of the People even before the expiration of the duration of the existing House.

180

Summary of Cases

SUMMARY OF THE JUDGMENT Article 327 enables Parliament to pass laws making provisions with respect to all

matters relating to, or in connection with, elections to either House of Parliament or

either House of the Legislature ofa State, subject to the provisions of the Constitution. This means that the provisions of the act will be subservient to the provisions in the

Constitution. Clause (2) of Article 83 gives the House of the People a normal life of

five years from the date appointed for its first meeting. This period can be cut short by the dissolution of the House by the President [Article 85(2)(b)]. It also provides

that the expiration of the period of five years shall operate as dissolution of the House. Thus, the article contemplates the dissolution of the House of the People by two methods, one by the action of the President and the other by the natural efHuxion of

time. Article 83 fixes the normal tenure of the House of the People by providing that its term will commence from the date appointed for its first meeting and will end immediately after the expiration of a period of five years from that date. The court has already seen that Article 85 empowers the President to dissolve the House of the

People. It is, therefore, apparent that the Constitution has ensured that unless the President resolves to dissolve the House, the normal period of five years as provided

for cannot be cut short in any eventuality. From a perusal of the provisions contained in the proviso to Clause (4) of Article 352, it is apparent that our Constitution does not frown upon a hiatus in the

constitution ofa new House of the People. Nonetheless, we still have to discern from the various provisions of the Constitution as to whether its framers ever intended,

either affirmatively or negatively, that steps should not be taken to hold a general election to bring into existence a new House of the People before the end of the life of the existing House,

We find that Article 81 provides that the House of the People shall consist of Members chosen by direct election from the territorial constituencies in the States.

The election shall be on the basis of adult suffrage (Article 326). Every person who

is a citizen of India, and who is not less than 21 years of age, and is not otherwise

disqualified on the grounds of non-residence, unsoundness of mind, crime or corrupt or illegal practice shall be entitled to be registered as a voter at the elections of the House of the People. A citizen of India who is not less than 25 years of age and who makes and subscribes an oath or affirmation according to a set form is qualified to be chosen to fill a seat in the House of the People. The architects of the Constitution have given us a parliamentary form of government or ‘Westminster Type’. We thus have a model of the British parliamentary democracy. As in our country, so in Britain the House of Commons endures for five years. Of course, there the term has been

laid down by the Act of Parliament of 1911. We have not come across any provision

in the Constitution which either expressly or by necessary implication deprives the electorate of this country of the right to elect Members of the new House of the People in advance. Further, the spirit of democracy which pervades the Indian Constitution

will gather greater strength ifa convention is developed that the elections to the House

Anand Mohan v. Union of India and Ors

Isl

of the People are held for constituting a new House before the expiry of its duration

so that the new House may commence its functions without any loss of time. We may now read Section 14 of the act:

NJOTIFICATION FOR GENERAL ELECTION TO THE HOUSE OF THE PEOPLE

(i) A general election shall be held for the purpose of constituting a new House of the people on the expiration of the duration of the existing House or on its dissolution.

(ii) For the said purpose the President shall, by one or more notifications published

in the Gazette of India on such date or dates as may be recommended by the Election Commission, call upon all parliamentary constituencies to elect Members in accordance with the provisions of this act and of the rules and orders made thereunder:

Provided that where a general election is held otherwise than on the dissolution of

the existing House of the People, no such notification shall be issued at any time earlier than six months prior to the date on which the duration of that House

would expire under the provisions of Clause (2) of Article 83.

The petitioner has urged that Sub-section (1) of Section 14 alone should be taken into

consideration for deciding the validity of the action taken by the President in issuing the impugned notification on 20 November

1984. He has placed great reliance on

the words ‘on the expiration of the duration of the existing House’. The argument, however, is not sound. In Sub-section (2) the words ‘said purpose’ have significance. These words are referable to the purpose mentioned in Sub-section (1), namely, the purpose of constituting a new House of the People. In Sub-section (2) the President

is required to call upon all parliamentary constituencies to elect Members by issuing one or more notifications. The notification or notifications have to be published in the

Gazette of India. The occasions for the election of the Members of the new House of the

People are mentioned in Sub-section (1). The first is on the expiration of the duration

of the existing House and the second is the dissolution of the existing House. It will

be noticed that in Section 14, unlike Article 83(2), the expiration of the duration of

the existing House is not treated as its dissolution. The provisions contained in Subsection (2) came into play either upon the expiration of the duration of the existing House or on its dissolution. Whichever may be the reason for constituting a new House, either expiration of the duration of the existing House or its dissolution,

no general election can take place unless the President issues the notification in the

manner provided for in Sub-section (2). The proviso here is playing its usual role; it is

carving out an exception to the provisions contained in Sub-section (2). The exception

is a situation wherein a general election is being held other than on the dissolution of the House of the People. In other words, it is being applied in a situation where a general election is being held on the expiration of the duration of the existing house.

In the proviso the reference to Clause (2) of Article 83 includes not only the period of

182

Summary of Cases

five years as fixed in Clause (2) of the article, but also the terms of the proviso thereto.

The proviso in Article 83(2) deals with an extraordinary situation brought about by the promulgation of emergency. The court did not concern itself with the provisions contained in the proviso.

The word ‘such’ used before the word ‘notification’ in the proviso clearly means that a

reference is being made to some notification mentioned earlier. There is no mention

of the word notification in Sub-section (1). This word is to be found only in Sub-

section (2). The terms of the proviso are, therefore, clear and explicit, and are free from

any ambiguity. They clearly mean that a notification referred to in Sub-section (2) can be issued for calling upon all parliamentary constituencies to elect Members of the new

House of the People only within a period of six months from the date of expiration of the duration of the existing House. In a nutshell, it means that in the case of the expiration of the duration of the existing House, elections can take place six months in advance and not earlier than that. To put it differently, an outer limit of six months has been fixed by Parliament from the date of the expiration of the duration of the existing House. In other words, the parliamentary constituencies in the country can be called upon to elect Members of the House of the People in advance, at any time within six months from the date of the expiration of the duration of the existing House and not before six months. It is thus clear that the provision as contained in Sub-section (1), cannot be read in isolation of the provisions contained in Sub-section (2) and the

proviso thereto. All the provisions contained in Section 14 have to be read as a whole and harmoniously construed. The court did not hesitate in taking the view that a general election can take place for the purpose of constituting a new House of the

People even before the expiration of the duration of the existing House.

The petition, therefore, was without merits and dismissed summarily.

Case 10

Ansumali Majumdar and Ors v.

The State of West Bengal and Anr

AIR 1952 Cal 632: MANU/WB/0069/1952 Harries, C. J., Das aND Das Gupta, J. J.

Date of Judgment: 04.04.1952

FACTS-IN-BRIEF

Shri Ansumali Majumdar filed a petition in the Calcutta High Court, on behalf of Dr Ranen Sen and Shri Bhupesh Chandra Gupta who had been elected Members of West Bengal Legislative Assembly and Council of States respectively, and who had been detained under the Preventive Detention Act, in which a prayer was made to issue a writ of habeas corpus for the release of the said persons. A similar petition was filed in 1952 in the same court by Dr Ranen Sen and two others, namely, Shri Benoy Krishna Choudhary and Shri Ganesh Ghosh for the issue of the writ of habeas corpus. Both petitions were decided together by the court. ISSUE

Whether Members of the State Legislative Assembly or Council of States can be detained under the Preventive Detention Act during continuation of their membership? DECISION

Article 105 deals with question of power, privileges and immunities available to Members of Parliament, and Section 7 of the Representation of the People Act, 1951, deals with qualification and disqualifications for being such a Member. A person may be qualified for being a Member but that does not give him immunity from arrest under Preventive Detention.

184

Summary of Cases

SUMMARY OF THE JUDGMENT In this case, the Calcutta High Court has made a distinction between the objectives and provisions of the Acts of 1951 and 1952, and the powers, privileges and immunities provided in the Constitution. While making the elaborate discussion on the powers, immunities, privileges of the Members under the Constitution and qualifications and disqualifications under the acts, the court came out with the following observations: The court opined that Parliament never intended to protect the Members from

certain terms of imprisonment following conviction merely because they happened to be Members of either House of a legislature. If all persons duly qualified to be elected

and not disqualified from sitting are allowed to sit, then, not only would persons

detained under orders made under the Preventive Detention Act be entitled to sit, but

also certain convicted criminals will also sit and that position is difficult to accept; While discussing Articles 21 and 22 of the Constitution, the court held that both the articles permit detention of person if it is in accordance with procedure laid down in law and Articles 21 and 22 of the Constitution do apply to Members

of the legislature who have been convicted and sentenced to even shorter terms of imprisonment and to persons detained under valid orders made under the Preventive Detention Act.

It was observed that since in England the privilege of freedom from arrest for

Preventive Detention is not available, it is quite impossible for Members of the West

Bengal Legislature to claim it. S. R. Das Gupta, J., while giving concurrent judgment, made a similar observation that the two acts, i.e. the Representation of the People Act, 1950 and 1951, do not deal with the privileges or immunities of Parliament or of its Members.

Case 11

Baljeet Singh v. Election Commission of India and Ors AIR 2001 Delhil: MANU/DE/1161/2000 Aryit Pasayat, C. J., S. K. MAHAJAN AND Muxut Mupeat, J. J.

Date of Judgment: 16.10.2000

F ACTS-IN-BRIEF The petitioner's case is that Articles 84 and 173 of the Constitution have to be read in

a manner that persons who are unable to comprehend their requirement of making and subscribing the oath or affirmation in terms of Articles 84, 99, 173 and 188 of the Constitution are ineligible to become Members of Parliament and legislature of a State.

According to the petitioner, the words ‘makes and subscribes’ under Articles 84(a) and 173(a) not only imply that a person qualified to be a candidate to fill a seat in

Parliament should be a citizen of India and not less than 25 years of age in the case of

being elected to the House of People and not less than 30 years of age on being elected as Member of Council of States, but also should have sufficient knowledge of the letter and spirit of the Constitution in order to make the requirement of making and

subscribing the oath or affirmation to the Constitution meaningful and purposeful.

According to learned counsel for the respondents, the propositions advanced by the petitioner are incapable of being worked out and the interpretation put to

Articles 84(a) and 173(a) of the Constitution would result in absurd results.

ISSUES

1. Whether the literacy or alleged standard thereof is inherent in the requirement to ‘make and subscribe’ the oath or affirmation postulated in Articles 84 and 99 of the Constitution or in the transaction of ‘Business of Parliament’, for a person to be qualified to be Member of either House of Parliament?

186

Summary of Cases

2. If question no. 1 is answered in the affirmative, whether there is any person

disqualified for being a Member of either House of Parliament and liable to be so declared?

DECISION

1. The Constituent Assembly had consciously not kept literacy as a qualification for a candidate to be chosen as a Member of legislature, and it was left to Parliament or State Legislature at a later date to prescribe the qualification if they felt that it was a necessary one for the person to be elected as Member of Parliament or State Legislature. The same has not been expressly prescribed by the law. 2. The role of courts is limited to questions of qualification or disqualification of candidates, elected representatives as clearly laid down in the relevant statute. Qualification or otherwise in the background of educational qualification is not a field where the courts have any role to play.

SUMMARY OF THE JUDGMENT It is submitted by the petitioner that the roles of the legislature are very vital for proper governance of the country in formulating policy decisions and the making of laws on varied subjects. A person who is not literate and does not have basic knowledge

of the Constitution cannot be said to have fulfilled the requirement of making and subscribing to the Constitution. Thus, according to the petitioner, use of the expression

‘make and subscribe’ under Articles 84(a) and 173(a) also makes the legislative intent

clear that adequate knowledge of law and spirit of the Constitution is inherent in the provisions. Since he is unaware of what is being legislated, the law-making power delegated to him by the Constitution really results in mindless participation, and more so when enactment of a statute comes up for consideration of the law-making bodies. The Constitution-makers were conscious of this position, as their deliberations clearly reflect.

According to learned counsel for the respondents, the propositions advanced by the petitioner are incapable of being worked out and the interpretation put to

Articles 84(a) and 173(a) of the Constitution would result in absurd results. In light of Articles 84(a), 99, 173(a) and 188 in the Constitution while referring to

Parliament, Article 99 prescribes that every Member of either House of Parliament or

some person appointed on behalf by him should take an oath or affirmation according

to the form set out for the purpose in the Third Schedule that he shall bear true faith and allegiance to the Constitution of India as established by law. Similarly, in respect of the legislature of the State, Article 188 also imposes an obligation on the Member of the Legislative Assembly or the Legislative Council, as the case may be, to make and

subscribe an oath or affirmation in the manner prescribed in Third Schedule as Form No. III-B. Both these articles refer to obligation to take an oath or affirmation after the Member is elected and before he takes the seat to the effect that he will bear true

Baljeet Singh v. Election Commission of India and Ors

187

faith and allegiance to the Constitution of India as by law established. Such provisions were there from the inception of the Constitution. Failure to comply with the above requirements entails penal consequences of Articles 104 and 193 respectively. For a wholesome understanding, the court made a journey down the Constitution framing body’s deliberations to gather what was in the mind of the framers of the Constitution. In the draft Constitution as was originally framed, Article 84 did not find a place. An amendment of the draft Constitution was made as Article 68A. This Article 68A as moved for amendment resulted in Article 84 being made a part of the Constitution. Two qualifications are prescribed for a person to be eligible to fill a seat in Parliament. These are: (i) he should be a citizen of India and (ii) he should not be

less than 25 five years of age if he was a candidate for the House of the People, and not less than 30 years of age if he was a candidate for the Council of States. No further qualifications were prescribed in the article. When Article 68A by way of amendment to the draft Constitution was moved. Dr B. R. Ambedkar stated as follows: “Sir, the object of the article is to prescribe qualifications for a person who wants to be a candidate at an election. Generally the rule is that a person who is a voter, merely

by reason of the fact that he is a voter, becomes entitled to stand as a candidate for election. In this article, it is proposed that while becoming a voter is an essential qualification for being a candidate, a voter who wishes to be a candidate must also satisfy some additional qualifications. These additional qualifications are laid down in this new Article 68-A. I think the House will agree that it is desirable that a candidate who actually wishes to serve in the Legislature should have some higher qualifications than merely being a voter. The functions that he is required to discharge in the House require

experience, certain amount of knowledge and practical experience in the affairs of the world, and I think if these additional qualifications are accepted, we shall be able to secure the proper sort of candidates who would be able to serve the House better than a mere ordinary voter might do.”

It is significant to note that no additional qualifications were proposed and the expression ‘makes and subscribes’ formed part of Article 84 and the matter was

discussed in the Constituent Assembly by Dr Rajendra Prasad, who, as President of

the Constituent Assembly, expressed his views about desirability of high qualifications for a person to be elected as Member of the legislature. His views are embodied in the following words: I will now put the amendment to vote, and also the article if the amendment is accepted as amended. Before doing so, I desire to make an observation but not

with a view to influencing the vote of the House. In this country we require very

high qualifications for anyone who is appointed as a Judge to interpret the law which is passed by the legislature. We know also that those who are expected to assist Judges are required to possess very high qualifications, for helping the judge in interpreting the law. But it seems that members are of opinion that a man who

has to make the law needs no qualifications at all, and a legislature, if we take the

extreme case, consisting of persons with no qualifications at all may pass something

188

Summary of Cases

which is non-sensual and the wisdom of all the lawyers and all the Judges will be

required to interpret that law. That is an anomaly but it seems to me that in this

age we have to put up with that kind of anomaly and I for one, although I do not like it, would have to put up with ic.

Though Dr B. R. Ambedkar and Dr Rajendra Prasad who were the Law Minister and

the President of the Constituent Assembly, highlighted the desirability of having high

qualifications, the same was not found acceptable. Only by Clause (c) of Article 84,

Parliament was authorised to make any law prescribing any qualification in that behalf. In the line of Article 68-A, Article 152 was also added in the Draft Constitution. Article 152 of the draft Constitution was incorporated as Article 173 of the Constitution. The said provision was similar to Article 68A of the Draft Constitution. Professor K. T. Shah moved an application for amendment of this article by which word ‘literacy’ was sought to be added for a person to be elected as a Member of legislature. The proposed amendment was as under: That in article 152, after the word “age” where it occurs for the first time the words is literate, and is not otherwise disqualified from being elected’: and after the word ‘age’

where it occurs for the second time, the words ‘is qualified to vote in the constituency

from which he seeks election, and is not otherwise disqualified from being elected’

be added.

While discussing the matter, Dr B. R. Ambedkar said with reference of the amendment

moved by Prof. K.T. Shah, that literacy is a matter which is best left to the legislators. If the legislators, at the time of prescribing qualifications, feel that literacy qualification is necessary they will do it. An amendment moved by Professor K. T. Shah was negatived by the Constituent Assembly. The purpose of referring to the debates in the Constituent Assembly was to show that the Constituent Assembly had consciously not kept literacy as a qualification for

a candidate to be chosen as a Member of legislature and it was left to Parliament or the State Legislavure at a later date to prescribe a qualification if they felt that it was a necessary one for the person to be elected as a Member of Parliament or the State Legislature.

1. By the Sixteenth Amendment of the Constitution, which was done in 1963, the

words ‘makes and subscribes before the President or some person authorised on

that behalf an oath or affirmation according to the form set out for the purpose in

the third schedule were added. Such an addition in Article 84 did not imply that a

person who was required to take the new oath must not only be literate but must

also have adequate knowledge of the Constitution. By the 1963 Amendment to

the

Constitution

(Sixteenth

Amendment),

the

requirement

of making

an

oath or affirmation and subscribing thereto an elected Member was also made obligatory on the candidates nominated for election. The relevant provision as far

as Parliament is concerned is Article 84(a), and as far as legislature of the State is concerned is 173(a).

Baljeet Singh v. Election Commission of India and Ors

By the said amendment following changes were introduced: (i) Making obligatory on the nominated candidate to make affirmation same as the elected Member.

189

an oath or

(ii) The oath or affirmation should also be in upholding the sovereignty and integrity of India. (iii) Correspondingly, all the forms of Third Schedule were amended. (iv)

In addition, the same wording ‘sovereignty and integrity of India was

introduced in Article 19(2)(3) of the Constitution of India. The purpose of Article 173(a) is to see that any person who wants to be a

Member of a legislature must bear true faith and allegiance to the Constitution of India as by law established, and he undertakes to uphold the sovereignty and integrity of India and to ensure this he must make an oath or affirmation. The

essential requirement of Article 173 read with Form VII-A is that person taking

the oath or making the affirmation would bear true faith and allegiance to the

Constitution and uphold the sovereignty and integrity of India. In the early 1960s, a tendency on the part of the sizable sections of the Indian people to veer over to the idea of secession from the mother country was

noticed by the Government. To check these tendencies, the National Integration Council recommended certain amendments to be made in the Constitution so that adequate powers become available for the preservation and maintenance of the integrity and sovereignty of the Union. It was also recommended that every

candidate for the membership of a State Legislature or Parliament, and every

aspirant, too, for incumbency of public office should pledge himself to uphold the Constitution and preserve the integrity and sovereignty of the Union and for that purpose the forms of oath in Schedule III of the Constitution were to be suitably amended. Articles 84 and 173 were also recommended to be amended and new oath prescribed in Schedule III of the Constitution so as to provide every

candidate to take an oath to ‘uphold the sovereignty and integrity of India’ was to

be added. It was designed with this purpose—to prevent all activities that would cause disintegration of the country—that not only Members who are elected to

Parliament but even the candidates, who intend to contest for being elected for

Members of Parliament or State Legislature, were required to take an oath to preserve the sovereignty and integrity of the country. It was therefore clear that the only purpose for an amendment to the

Constitution in 1963 was to put restrictions upon the rights guaranteed by Article 19 of the Constitution of India in the interest of sovereignty and integrity of the State and to provide that every candidate for membership of Parliament or State Legislature, Union and State Ministers, Members of Parliament and State Legislature, Judges of the Supreme Court and high courts and the Comptroller and Auditor General of India, should take an oath to uphold the sovereignty

and integrity of India. It was never the intention of the legislature that, by these amendments in the Constitution, an additional qualification of a candidate being literate and having knowledge of the Constitution of India was added.

190

Summary of Cases

2. Moreover, Rule 2(ii) of the Conduct of Election Rules clearly mentions that the

oath will be read over to the person who is not in a position to read the same and such person may put his mark in the form prescribed for the purpose. This clearly

implies that there can be a candidate who cannot read and write and in such a case an oath as prescribed by the act was to be read over to him and he was required to put the mark in the form prescribed for the same. The Conduct of Election Rules were framed in 1961. In 1963, when the Constitution was amended, Parliament was aware of the existence of the Conduct of Election Rules. In spite of the existence of the said rules, Parliament did not find any reason to amend the

same, which clearly goes to show that it was not the intention of Parliament to make literacy implicit in Article 84(a) or 173(a) as a qualification for a person to be elected to Parliament.

Not only that the amendment proposed to the Draft Constitution in 1949 regarding literacy to be an essential qualification of a candidate for being elected

to Parliament or State Legislature was rejected by the Constituent Assembly, Parliament,

while enacting the Representation

of People Act,

1951, was also

conscious of the fact that there can be some candidates for election to Parliament

or State Legislature who were not in a position to read and write. Parliament,

in Section 2(1)(i) of the said act, while giving the meaning of the word ‘sign’,

has indicated that ‘sign’ in relation to a person who is unable to write his name,

must authenticate in such manner as may be prescribed. Again Rule 2(2) of the Representation of the People (Conduct of Elections and Election Petitions) Act,

1951, also contemplates a situation where a candidate is not in a position to read and write and requires such a candidate to sign an instrument or other paper by placing a mark thereon. . While amending the Constitution in 1963, Parliament was aware of the stipulations in the Representation of the People Act, 1951, as well as the rules framed thereunder about a candidate not being in a position to write his name

and the said act and the rules have not been amended till date. It shows that it was never the intention of Parliament to read ‘literacy’ in the words ‘makes and subscribes’ in Articles 84(a) and

173(a) of the Constitution. The definition of

the word ‘sign’ in the General Clauses Act includes the making of a mark. In

Section 2(1)(i) of the Representation of the People Act,

1951, the word ‘sign’

in relation to a person who is unable to write his name means authenticated in

such a manner as may be prescribed. In Section 33(1), (2) (before amendment

of 1956), the word ‘subscribe’ means signing according to the requirements of the act. In case of thumb marks, attestation is necessary. Failure to comply with the provisions of the sections entails the penalty of rejection of the nomination paper. To put the position differently, if there is no requirement that there be the element of literacy at the time of filing the nomination of the candidate, it will be difficult to accept the stand that there should be a requirement of literacy at the time of making of the oath after the filing of the nomination.

Baljeet Singh v. Election Commission of India and Ors

191

As pointed out by the court, an important and very noticeable difference between qualifications prescribed by Parliament for the membership of a Legislative Assembly by Section 5 of the Representation of People Act, 1951, and those for the membership of a Legislative Council by Section 6 of that act can be seen. So far as a Member of the Legislative Assembly is concerned, he or she has

to be an elector in the constituency from which he or she stands, but a Member of a Legislative Council in a State is not similarly required to be a Member of the electorate. What the petitioner wanted, was the court to add to or infer educational qualification from certain articles. In the understanding of the court, such would be against the rule of ‘plain meaning’ or ‘literal’ construction which must ordinarily prevail. Even if it were to be looked into, the question that arises is: what is that qualification that is to be implied? Is it mere literacy or any fixed educational qualification? What would be the rationale for fixing any particular qualification? In that context, democracy is a concept, a political philosophy, an ideal practised by resorting to governance by representatives of the people elected directly or indirectly. But election of representatives to govern is neither a ‘fundamental right’ nor a ‘common law right’, rather a special right created by the statutes or a ‘political right’ or ‘privilege’ and not a ‘natural’, ‘absolute’ or ‘vested right’. For democracy to survive, rule of law must prevail. There was no merit in the petition which was accordingly dismissed.

Case 12

Bhagwan Dass Sehgal v. State of Haryana and Ors AIR 1974 SC 2355: (1975)1 SCC 249: [1975] 2 SCR580 ALAGIRISWAMI AND R. S. SARKARIA, J. J.

Date of Judgment: 05.11.1974

FACTS-IN-BRIEF The appellant and the respondent contested the election to the Haryana Legislative

Assembly from Ambala Cantonment. The respondent Hans Raj Suri was declared

elected which was challenged by the appellant on the grounds that he: (i) asa Chairman of the Ambala Improvement Trust held an office of profit; and (ii) the Prevention of

Disqualification Act 1952, which purported to take the office, as a separate class from other posts under the Improvement Trust, out of the purview of an office of profit, was

invalid under the petition. conferred by Amendment

Article 14. Both Single and Division Bench of the high court dismissed Subsequent to the decision of the high court, by virtue of the powers Article 191 of the Constitution, the legislature of Haryana State enacted Act 25 of 1969 amending the Disqualification Act 1952.

ISSUE

Whether the Punjab State Legislature (Prevention of Disqualification) Act of 1952 suffers from the vice of discrimination and as such is an invalid piece of legislation? DECISION

The Chairmen of the Improvement Trusts, having been put as a class separate from

that of the members of the Trust and other statutory bodies, does not offend the

guarantee of equal treatment enshrined in Article 14 of the Constitution. The very status, administrative responsibilities and other conditions which go with the office of

Bhagwan Dass Sehgal v. State of Haryana and Ors

193

the Chairman of the Improvement Trust are not the same as those of the members of

the Trust or other statutory bodies.

SUMMARY OF THE JUDGMENT The learned Single Judge before whom the writ petition first came referred to a Division Bench of the High Court which dismissed the writ petition. In consequence,

the election petition was also dismissed. Before the court, it was not disputed that at

the date of filing the nomination papers and also on the date of their scrutiny, the

respondent was Chairman of the Ambala Improvement Trust. He was appointed by the State Government

under the Improvement Act, 1963, by a notification dated

21 May 1970. As Chairman he was receiving a salary of Rs 1,000

per month along

with dearness and conveyance allowances. Also that the power of appointment and removal of the Chairman of the Trust vests in the State Government and his remuneration is paid out of the public revenues. In short, the office of the Chairman has all the attributes of an ‘office of profit’. Subsequent to the decisions of the high court by virtue of the powers conferred by Article 191 of the Constitution, the Legislature of Haryana State enacted the Amendment Act 25 of 1969, amending the Disqualification Act. The effect of this amendment was that a person holding the office of the Chairman of an Improvement

Trust constituted under the Punjab Town Improvement Act or the office of the Chairman of the State Agricultural Marketing Board constituted under the Punjab Agricultural Produce Markets Act, 1961, does not incur the disqualification for being

chosen as and for being a Member of the Haryana State Legislative Assembly. Counsel for the appellant contends that the impugned provision is discriminatory inasmuch as it enables the Chairman of the Trust to contest an election to the State Assembly by removing his disqualification, but does not accord the same treatment

to the members of the Trust appointed under other provisions of the Improvement Act. Also that the impugned provision has created an unreasonable classification

between the members of the statutory bodies under Clause (e) and a Chairman of the

Improvement Trust falling under Clause (i) of Section 2 of the Disqualification Act.

The court found no merit in such contentions for the reason that in the case of

members of the Trust appointed under Section 4(i)(c) of the Improvement Act, the

disqualification on the ground of their holding the office of profit had already been

removed by Clause (e) of Section 2 of the Disqualification Act, 1952, which runs

thus:

A member of any statutory body or authority, or a member of any Committee or other body, appointed or constituted by the Punjab Government, and who is not

in receipt ofa salary but who is paid only travelling and daily allowance during the

performance of his duties.

Ic is, therefore, not correct to say that the members of the Trust have been discriminated

against in the matter of removing the disqualification.

194

Summary of Cases Furthermore,

‘the status,

administrative

responsibilities and

other

conditions

which go with the office of the Chairman of the Improvement Trust are not the same as those of the members of the Trust or other statutory bodies. The mere fact therefore, that for the purpose of removing the disqualification, the Chairmen of the Improvement Trusts have been put in Clause (ii) as a class separate from that of the

members of the Trust and other statutory bodies in Clause (e) of Section 2 does not

offend the guarantee of equal treatment enshrined in Article 14 of the Constitution’. The Constitution, under Article 191(1)(a), gives a wide power to the State Legislature

to declare by law what office or offices of profit held under the Government shall

not disqualify the holder thereof from being chosen or for being a Member of the State Legislature. Classification of such offices for the purpose of removing the disqualification has thus been left primarily to legislative discretion. It follows that so long as this exemptive power is exercised reasonably and with due restraint and in a manner which does not drain out Article 191(1)(a) of its real content or disregard any

constitutional guarantee or mandate, the court will not interfere.

Case 13

Biharilal Dobray v. Roshan Lal Dobray AIR1984 SC 385: (1984)1 SCC 551: [1984]1 SCR 877 E. S. VENKATARAMIAH AND S. MurTAZA Fazat ALI, J. J. Date of Judgment: 23.11.1983

FACTS-IN-BRIEF The respondent was employed as an assistant teacher in a Basic Primary School, managed by the Zila Parishad. By virtue of the UP Basic Education Act, 1972, he

became an employee of the Board of Basic Education and he filed his nomination papers for election to the State Legislative Assembly while holding such post. The Returning Officer rejected his nomination papers on the ground that he held an office of profit under the State Government and was disqualified under Article 191(1)(a). The respondent challenged such decision which was declared void by the high court. The appellant preferred an appeal under 116-A of the Representation of the People Act to challenge the decision of the high court. ISSUE

Whether an assistant teacher employed in a Basic Primary School run by the Uttar Pradesh Board of Basic Education constituted under the Uttar Pradesh Basic Education Act, 1972, is disqualified for being chosen as a Member of the State Legislative Assembly under Article 191(1)(a) of the Constitution?

DECISION

Since the expenditure of the Board, appointment of teachers, decision in disciplinary matters, etc. are all under the State Government, the respondent does hold an office of profit under the Government.

196

Summary of Cases

SUMMARY OF THE JUDGMENT The main contention of the respondent was that the post of an assistant teacher in

a Basic Education School, which he held, was not an office of profit under the State

Government and the rejection of his nomination was improper and, therefore, the election of the appellant was liable to be declared as void as provided in Section 100(1)(c) of the Representation of the People Act, 1951. The high court held that the

post held by the respondent was not an office of profit under the State Government

and held that the rejection of his nomination was improper and the election of the appellant was liable to be declared as void. The election petition was thus allowed and

the appellant's election was declared as void. Aggrieved by the decision of the high

court, the appellant went in appeal under Section 116-A of the Representation of the People Act, 1951. On this point the apex court put forth that the object of enacting Article 191(1)(a)

as ‘A person who is elected to a Legislature should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure. If such a person is holding an office which brings him remuneration and the Government has a voice in

his continuance in that office, there is every likelihood of such person succumbing to the wishes of Government. Article 191(1) (a) is intended to eliminate the possibility

ofa conflict between duty and interest and to maintain the purity of the Legislatures’.

The apex court also held that the term ‘office of profit under the Government used in the above clause, though indeterminate, is an expression of wide import. For holding

an office of profit under the Government a person need not be in the service of the Government and there need not be any relationship of master and servant between

them. An office of profit involves two elements, namely there should be an office and that it should carry some remuneration. In order to determine whether a person holds an office of profit under the Government, several tests are ordinarily applied

such as whether the Government makes the appointment, whether the Government

has the right to remove or dismiss the holder of the office, whether the Government

pays the remuneration, whether the functions performed by the holder are carried

on by him for the Government and whether the Government has control over the

duties and functions of the holder. Whether an office in order to be characterised as an office of profit under the Government should satisfy all these tests or whether any

one or more of them may be decisive of its true nature has been the subject matter of several cases decided by this court but no decision appears to lay down conclusively the characteristics of an office of profit under the Government, although the court has

no doubt determined in each case whether the particular office involved in it was such an office or not having regard to its features. Specifically with regard to the case, there was no dispute that the respondent was holding the post of an assistant teacher in a basic school on the date of his nomination as a candidate at the election in question, and that he was in receipt of the salary attached to that post. In order to ascertain whether the post held was one under the State Government or not, the Uttar Pradesh Basic Education Act, 1972, was looked

Biharilal Dobray v. Roshan Lal Dobray

197

into. The Statement of Objects and Reasons said that responsibility for primary education has so far rested with the Zilla Parishads in rural areas and with Municipal

Boards and Mahapalikas in urban areas. The administration of education at this level

by the local bodies was not satisfactory, and it was deteriorating day by day. There was public demand for the Government to take immediate steps for improving the education at this level. Hence, for reorganising, reforming and expanding elementary

education it became necessary for the State Government to take over its control in its

own hands. The act also provides for the constitution of a Board to run the schools imparting primary education, instead of keeping them as a part of a Department of Education of the State Government. The Board is established by the State Government. The Director, the Deputy Director of Education (Member Secretary) and the District Basic Education Officers who are in charge of the administration of the Board are officers appointed by the State Government. The respondent was originally working as an assistant teacher in the Basic Primary Schools, Sengarmau, Tehsil Kanauj, District Farrukhabad. That institution was being run and managed by the Zila Parishad of

Farrukhabad, and the respondent was, therefore, an employee of the said Zila Parishad. On the promulgation of the UP Ordinance of 1972 which was replaced by the act, he became an employee of the Board under the act which provided for the transfer of

employees of the local bodies to the Board. The respondent urged that the Board of Basic Education being a body corporate,

having perpetual succession and a common seal, its employees cannot be considered as holding any office of profit under the Government. On this, the court observed saying

that it is necessary to recall the provisions of Article 45 of the Constitution which require the State to endeavour to provide for free and compulsory education for all

children until they complete the age of 14 years. Primary education in a State unlike

higher education is the special responsibility of its Government, and, as observed earlier, the act was passed with the object of enabling the Government to take over

all basic schools which were being run by the local bodies in the State and to manage

them. The Board for all practical purposes is a department of the Government and its autonomy is negligible. Another contention of the respondent was that the Board being an authority

subject to the control of the Government cannot be considered as the Government

itself as otherwise Article 58(2) and Article 66(4) of the Constitution which refer to

the Government as well as other authority subject to the control of any Government would have to be treated as suffering from the vice of redundancy. Also that when the Constitution itself has made a distinction between the Government and other authority, subject to the control of the Government, in the absence of any reference to any other authority subject to the control of the Government in Article 191(1)(a)

of the Constitution, the holding of an office of profit under the Board which is

only an authority under the control of the Government would not amount to a

disqualification. The court conclusively delivered that having regard to the provisions of the act and the rules it is shown that the Board is not an authority which is truly independent

198

Summary of Cases

of the Government and that every employee of the Board is in fact holding his office under the Government. “This is not even a case of attempting to pierce the veil and trying to find out the true nature of something after uncovering it but a case where its true nature, i.e. the subordination of the Board and its employees to the Government is writ large on the face of the Act and the rules made thereunder’. Hence, in the light of the purposes underlying Article 191(1)(a) of the Constitution, the respondent was

held to be holding an office of profit under the State Government and his nomination

was rightly rejected by the Returning Officer. The judgment of the high court was

thus reversed.

Case 14

Brundaban Nayak v. Election

Commission of India and Anr

AIR 1965 SC 1892: [1965] 3 SCR 53 P. B. GAJENDRAGADKAR, C. J., M. HIDAYATULLAH, RAGHUBAR Dayal, S. M. Srkri AND V. RAMASWAMI, J. J. Date of Judgment: 12.02.1965

FACTS-IN-BRIEF The appellant Shri Brundaban Nayak was elected to the Legislative Assembly of Orissa

from the Hinjili Constituency in Ganjam district in 1961, and was appointed one of the Ministers of the Council of Ministers in the said State. On 18 August 1964, respondent no. 2, Shri P. Biswal, applied to the Governor of Orissa alleging that the appellant had

incurred a disqualification subsequent to his election under Article 191(1)(e) of the

Constitution read with Section 7 of the Representation of the People Act, 1951. 10 September 1964, the Chief Secretary to the Government of Orissa forwarded said complaint to respondent no. 1, the Election Commission of India, under instructions of the Governor. In this communication, the Chief Secretary stated

On the the that

a question had arisen under Article 191(1) of the Constitution whether the Member

in so as to to

question had been subject to the disqualification alleged by respondent no. 2 and he requested respondent no. | in the name of the Governor to make such enquiries it thinks fit and give its opinion for communication to the Governor to enable him give a decision on the question raised. On 17 November 1964, a notice was served the appellant intimating that respondent no. 1 proposed to enquire in the matter

before giving its opinion on the Governor's reference, and, therefore, he should submit

on or before 5 December

1964 his reply with supporting affidavits and documents,

if any. The appellant raised the question about the maintainability of the proceedings before respondent no. 1 and its competence to hold the enquiry.

200

Summary of Cases

ISSUE

Whether respondent no. 1, i.e. the Election Commission of India is entitled to hold an enquiry before giving its opinion to the Governor as required by Article 192(2). DECISION

All complaints in respect of disqualifications subsequently incurred by Members who have been validly elected, have, in substance, to be tried by the Election Commission,

though the decision in form has to be pronounced by the Governor.

SUMMARY OF THE JUDGMENT In response to the notice, on 1 December 1964, the appellant sent a telegram to respondent no. | requesting it to adjourn the hearing of the matter, which was rejected. Respondent no. 2 appeared by his counsel, but the appellant was absent. Respondent no. 1 took the view that an enquiry of the nature contemplated by Article 192(2) must be conducted as expeditiously as possible, and so, it was necessary that whatever his other commitments may be, the appellant should arrange to submit at least his statement in reply to the allegations made by respondent no. 2, even if he required some more time for filing affidavits and/or documents in support of his statement. Even so, the appellant was given time until the 2 January 1965.

On 2 January 1965, the appellant appeared by his counsel raising the question about the maintainability of the proceedings before respondent no. 1 and its competence to hold the enquiry. Respondent no. 1 over-ruled such contention and recorded its conclusion that it was competent to hold the enquiry under Article 192(2). Subsequently, counsel for the appellant asked for adjournment and made it clear that he was making the motion for adjournment without submitting to the jurisdiction of respondent no. 1. In view of the attitude adopted by the appellant, respondent no. 1 took the view that it would be pointless to adjourn the proceedings, and so, it heard the respondent's counsel in support of the case of respondent no. 2 and reserved its orders on the enquiry and noted that its opinion would be communicated to the Governor as early as possible. The appellant at this stage moved the Punjab High Court under Article 226 of the Constitution, praying that the enquiry which respondent no. | was holding should be quashed on the ground that it was incompetent and without jurisdiction. This

writ petition was summarily dismissed by the said high court on 6 January 1965.

Thereafter, the appellant applied to this court for special leave on 8 January, 1965, and

special leave was granted to him. The appellant then moved the apex court for stay of further proceedings before respondent no. 1, and the said prayer was granted. When the special leave was granted to the appellant, the court had made an order that the preparation of the record and the filing of statements of the case should be dispensed

Brundaban Nayak v. Election Commission of India and Anr

201

with and the appeal should be heard on the paper-book filed along with the special

leave petition and must be placed for hearing within three weeks. Dealing with the matter, the court referred to Article 192, Clause (e) on which respondent no. 2 relies in support of the complaint made by him to the Governor. The respondent no. 2’s case is that the appellant has incurred the disqualification under

Article 191(1)(e) read with Section 7(d) of the act, and this disqualification has been

incurred by him subsequent to his election. It is well-settled that the disqualification

to which Article 191(1) refers must be incurred subsequent to the election of the Member. This conclusion follows from the provisions of Article 190(3)(a). This article refers to the vacation of seats by Members duly elected. Sub-Article (3)(a)

provides that if a Member of a House of the Legislature of a State becomes subject

to any of the disqualifications mentioned in Clause (1) of Article 191, his seat shall

thereupon become vacant.

On the issue at hand, as to whether respondent no. | is entitled to hold an enquiry

before giving its opinion to the Governor as required by Article 192(2), counsel for

the appellant contended and the court made its observation as under:

(i) That no question can be said to have arisen as to whether the appellant has become subject to any of the disqualifications mentioned in Clause (1) of Article 191 because his case is such that a question can be raised only on the floor of the Legislative Assembly and can be raised by Members of the Assembly and not by an ordinary citizen or voter in the form of a complaint to the Governor. In

fact, the case sought to be made out by the appellant in the present proceedings appears to be that though a question may have arisen about his disqualification, it is the Governor alone who can hold the enquiry and not respondent no. 1. The court allowed this point to be raised because it is purely a question of law

depending upon the construction of Article 192(1). In support of his argument, counsel refers to the fact that Article 192 occurs in Chapter III of Part VI which deals with the State Legislature, and he invited our attention to the fact that under

Article 199(3), which deals with a question as to whether a Bill introduced in the

legislature of a State which has a Legislative Council is a Money Bill or not, the decision of the Speaker of the Legislative Assembly of such State thereon shall be final. He urges that just as the question contemplated by Article 199(3) can be raised only on the floor of the House, so can the question about a subsequent

disqualification of a Member of a Legislative Assembly be raised on the floor of the House and nowhere else. He concedes that whereas the question contemplated

by Article 199(3) has to be decided by the Speaker and his decision is final, the authority to decide the question under Article 192(1) is not vested in the Speaker, but is vested in the Governor.

(ii) The fact that Article 192(1) provides that if any question arises it shall be referred

for the decision of the Governor and this clause, so there should be some referring

authority which makes a reference of the question to the Governor for his decision.

202

Summary of Cases

According to the counsel, this referring authority, by necessary implication, is the Speaker of the Legislative Assembly. (iii) Article 192(2) requires that whenever a question is referred to the Governor, he

shall obtain the opinion of the Election Commission and it could not have been the intention of the Constitution to require the Governor to refer to the Election Commission every question which is raised about an alleged disqualification of a Member of a Legislative Assembly even though such a question may be patently frivolous or unsustainable. The court was not too impressed by these arguments. In response, the court stated that the first clause of Article 192(1) does not permit of any limitations such as the counsel suggests. What the said clause requires is that

a question should arise; how it arises, by whom it is raised, in what circumstances

it is raised, are not relevant for the purpose of the application of this clause. All

that is relevant is that a question of the type mentioned by the clause should

arise; and so the limitation sought to be introduced in the construction of the

first part of Article 192(1) is plainly inconsistent with the words used in the said clause. Also, on the words ‘the question shall be referred for the decision of the

Governor’, these words do not import the assumption that any other authority

has to receive the complaint and after a prima facie and initial investigation about the complaint, send it on or refer it to the Governor for his decision. These words

merely emphasise that any question of the type contemplated by Clause (1) of

Article 192 shall be decided by the Governor and the Governor alone; no other authority can decide it, nor can the decision of the said question as such fall within the jurisdiction of the courts. That is the significance of the words ‘shall be referred for the decision of the Governor’. If the intention was that the question must be raised first in the Legislative Assembly and after a prima facie examination by the Speaker it should be referred by him to the Governor, Article 192(1) would have been worded in an entirely different manner.

The other point that it is for the Governor to hold the enquiry and not for the

Election Commission was rejected by the court. As per the court, ‘the scheme of Article 192(1) and (2) is absolutely clear. The decision on the question raised under Article 192(1) has no doubt to be pronounced by the Governor, but that decision

has to be in accordance with the opinion of the Election Commission. The object of this provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. When

the Governor pronounces

his decision under Article

192(1),

he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself; he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, ‘he shall act according to such opinion’. In regard to complaints made against the election of Members to the Legislative Assembly, the jurisdiction to decide such complaints is left with the Election Tribunal under the relevant provisions of the act. That means that all allegations made, challenging the validity of the election of any Member, have to be

Brundaban Nayak v. Election Commission of India and Anr

203

tried by the Election Tribunals constituted by the Election Commission. Similarly, all complaints in respect of disqualifications subsequently incurred by the Members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. Conclusively, the court did point out that so far the practice followed in respect of

such complaints has consistently recognised that the enquiry is to be held by the Election Commission both under Article 192(2) and 103(2). Even counsel for the respondent

no. | stated that on several occasions, the Election Commission has held enquiries before communicating its opinion either to the President under Article 103(2) or to the Governor under Article 192(2); no one ever thought of raising the contention

that the enquiry must be held by the President or the Governor respectively under

Article 103(1) and 192(1).

The appeal was finally dismissed for the reasons stated above. Respondent no. 1 was asked to proceed to consider the matter and forward its opinion to the Governor as early as possible.

Case 15

C. Srikisen v. State of Hyderabad and Ors AIR 1956 Hyderabad 186 DESHPANDE AND JAGANMOHAN Reppy, J. J.

Date of Judgment: 13.07.1956

FACTS-IN-BRIEF

Shri C. Srikisen, resident of Hyderabad State, filed a writ petition in the High Court

of Hyderabad for declaration and issue of a writ of prohibition or any other writ or

direction to twenty-two persons/institutions, including, among others, the State of Hyderabad, Government of India, Speaker (Lok Sabha), Chairman (Rajya Sabha) and Prime Minister of India, restraining them from introducing the Draft Reorganisation Bill in Parliament and the proposal for the disintegration of Hyderabad State.

Shri Srikisen in his petition had alleged that the Prime Minister of India had been trying

to influence the Ministers and the Members of the Hyderabad Assembly to agree to the

‘dismemberment’ of Hyderabad and the merger of its Maratha, Kannada and Telugu tracts with the adjoining new state units of Bombay, Mysore and Andhra Pradesh and he was trying to force the different Assemblies of Hyderabad, Andhra Pradesh, Mysore

and Bombay to pass resolutions for the disintegration of Hyderabad State. The petitioner

made a prayer to the high court for the issue of declaration that the Government of India had no constitutional basis for the introduction of the Draft Reorganisation Bill

in Parliament and of the proposal for the disintegration of Hyderabad State; to issue a writ of Prohibition or direct the State of Hyderabad and the Speaker of the Hyderabad

State Assembly not to discuss the draft of the Reorganisation Bill, etc. A stay petition was also presented on the concerned date along with an afhdavit. ISSUE

Is there any power or jurisdiction of a court of law to issue writs against Parliament/ State Legislatures on matters which relate to their legislative functions?

C. Srikisen v. State of Hyderabad and Ors

205

DECISION

The High Court of Hyderabad dismissing the writ petition on the ground that the court is not empowered or competent to do the matter and hence the petition is not maintainable under the law pronounced the judgment as:

° There is yet another ground on which the petition becomes tenable, viz. the want of jurisdiction of the high court to issue any writs against Parliament/State Legislatures or the Speaker or any officer of these Assemblies. It is an elementary opposition of constitutional law that both Parliament and State Legislatures are sovereign within the units assigned to them by the Constitution. Articles 105 and 194 determine the privileges and powers and immunities of Parliament and State Legislatures to be those defined by it under any law and until so defined shall be those of Parliament of the United Kingdom. ¢ Similarly, Articles 122 and 212 expressly prohibit the jurisdiction of the courts in respect of the exercise of powers vested in any officer or Member of Parliament or an officer or Member of a legislature in whom powers are vested under the Constitution for regulating procedure or conduct of business or for maintaining

order in the respective Assemblies.

¢ A Speaker of Parliament or legislature or the Chairman of the Rajya Sabha are

officers within the meaning of these articles. Ministers of the Centre or State are also Members respectively of Parliament or legislature: as such the courts cannot interfere with them in the part they play in the proceedings or business of the

Assemblies nor can they interfere with their privileges, as the rights of any of them to introduce any Bill in their respective Assemblies are rights and privileges of these Members, whether as Members or as Ministers. There is an inherent right in the legislatures to conduct their affairs without any interference from any outside body.

SUMMARY OF THE JUDGMENT It was contended in the petition that the implementation of the State Reorganisation Commission's report and the proposed legislation to give effect to the proposal contained therein would not only injure the people of Hyderabad in general, politically, socially and economically, but it would effect the petitioner most adversely and give him a mental shock to have his land of birth torn as under by disruptive forces and elements and injure him financially and otherwise.

Case 16

C. Subramaniam v. Speaker of Madras Legislative Assembly and Ors

AIR 1969 Mad 10: MANU/TN/0139/1969 M. ANANTANARAYANAN, C. J., VEERASWAMI, RAMAKRISHNAN, NATESAN AND ISMAIL, J. J.

Date of Judgment: 14.03.1968

FACTS-IN-BRIEF

The writ petitioner in this case was a Member of the Madras Assembly. He allegedly made a speech in which he passed certain remarks regarding the Language Resolution adopted by the State Assembly. This was published by some newspapers and the House took notice of the same. The Speaker sent a notice to the petitioner asking him

to show cause as to why he should not be punished for contempt of the House. The petitioner filed a writ petition under Article 226 before the high court, praying for a writ of prohibition restraining the Speaker from proceeding further with the matter. ISSUES 1. Does the first part of Article 194(3) lapse because, over time, the legislature has

not made any law to codify the privileges, which are amorphous and difficult to collate? 2. Can a writ of prohibition be issued against the Speaker restraining him from proceeding further with the matter? DECISION

The privileges enjoyed by the House of Legislature by virtue of the first part of Article 194(3) do not become defunct by virtue of inaction on the part of the legislature to make suitable law.

C. Subramaniam v. Speaker of Madras Legislative Assembly and Ors

207

SUMMARY OF JUDGMENT The Full Bench of the Madras High Court, at first glance, had to answer the question

regarding the Doctrine of Lapse. The court dismissed this contention. The court said

that the legislature could have enacted, and that it has, in its wisdom, not enacted the same. The court ultimately relied on the premise used in the /n Re Article 143 (Keshav Singh’s case) to justify that the Constitution makers would have presumed that the privileges possessed by the House of Commons were all constitutionally sound. The next argument of the petitioner was that the House of Commons exercised their privileges in these kinds of circumstances by detention and imprisonment for an uncertain period. This was against Articles 21 and 20(1) of the Constitution. The court

reiterated the view taken in Keshav Singhs case that privileges under Article 194(3)

were subject to Article 21 though they are not subject to Article 19(1)(a). But in the instant case, no action has yet been taken and it would be too premature to decide on the issue. Hence, the writ petition was dismissed.

Case 17

Chhabildas Mehta, MLA and Ors v. The Legislative

Assembly, Gujarat State and Ors

MANU /GJ/0150/1970: (1970) 11 GLR 729 PN. BHacwati, J. AND B. J. Drvan, J.

Date of Judgment: 02.05.1970

FACTS-IN-BRIEF The Gujarat Assembly was summoned by the Governor to meet on 18 February 1970. Since Government business was to be given preference, the transaction of private members’ business was postponed till 28 March. On 27 February 1970, the Business Advisory Committee chaired by the Speaker convened a meeting. In the said meeting

a resolution was passed that the Assembly be adjourned sine die from 28 March. On

28 March a resolution was moved before the Assembly that the House agrees with the above resolution. Petitioner No. 4 (all petitioners are Members of the Assembly)

moved a point of order expressing three objections. They were: (i) That only the

Speaker and not the Assembly could adjourn a session; (ii) that the resolution passed

by the Business Advisory Committee was beyond the scope of its powers; and (iii) such

a resolution violates the Members’ right to free speech in the Assembly guaranteed by Article 194(2) of the Constitution. The Speaker rejected these objections and put the motion to vote. The resolution was passed. The petitioners before the high court were agerieved Members. The respondents were respectively the Assembly, the Speaker and

the Government. After the court sent notice to the Assembly, the Speaker wrote a letter to the high court on behalf of the Assembly, wherein he, while expressing the inability of the House to appear before the court, obliquely hinted that the court had no business meddling with the internal affairs of the Assembly which falls within the

purview of its own privileges and any such interference would amount to contempt of the House.

Chhabildas Mehta, MLA and Ors v. The Legislative Assembly, Gujarat State and Ors

209

ISSUES

1. As a preliminary issue, whether the court can decide the existence of a privilege under Article 194(3) of the Constitution and, moreover, does such adjudication

amount to contempt of the House? 2. Does the high court, under Article 226, possess the jurisdiction to entertain the petition keeping in view Article 212(2) of the Constitution as well as the privilege of the Assembly to prevent its proceedings being impeached outside it, as inherited from the English House of Commons and affirmed by Article 194(3)

of the Constitution?

3. If the answer is in the affirmative, does the Assembly have the privilege of deciding

all matters regarding its internal procedures? 4. Even if such a privilege was present in 1950 in the hands of the House of Commons, can that privilege automatically assume legal and constitutional value in the Indian context? 5. If it was decided that no privilege as stated above was present, then, whether the Assembly acted outside its powers in adjourning the House sine die? 6. Whether the right to free speech given to the Members/petitioners by Article 194(2)

was infringed by the action of the Assembly?

SUMMARY OF THE JUDGMENT Though the court was to decide initially on the issue of jurisdiction, it was rather taken

aback by the letter of the Speaker. Therefore, the focus was first placed on the issue of whether the House could unilaterally decide the existence and extent of its privileges without subjecting the same to an adjudicatory process and, consequently, if an

attempt to adjudicate on such privileges would amount to contempt of the House. The answer to both the above questions was found in the opinion rendered by Gajendradgadkar. J. in In Re: Under Article 143. The Hon’ble Chief Justice (then) pointed out that:

... the privileges of the Legislature are to be found in Article 194(3): that provision

is the sole foundation of the privileges and no privilege can be claimed by the House which is not included in it. The problem of determining the existence and extent of the privileges is, therefore, really a problem of construing Article 194(3) and

determining its content. That task under a Federal Constitution such as ours, where not the Parliament but the Constitution is supreme and sovereign, is assigned solely and exclusively to the Judicature.

Thereafter, the issue of contempt of the House by the Judiciary was dealt with. The

learned Chief Justice accepted the argument of the Judges (in Jn Re Art. 143) that

Article 211 affords complete protection to a Judge acting in the discharge of his duties. His conduct in the discharge of his duties can never become the subject matter of any action taken by the House in exercise of its powers or privileges under the latter part of Article 194(3).

210

Summary of Cases

Bhagwati J. lamented that the Speaker had actually written a brazen letter totally oblivious of the above opinion of the Supreme Court, which though an opinion under Article 143 had the force of law under Article 141. The court then moved on to decide its own jurisdiction in the case. The view

taken above in Jn Re Article 143 was moulded to fit the scenario. Interpreting the true intent of Article 194(3) it was held:

The devise which was, therefore, adopted was to incorporate by reference in Article 194

Clause (3) the privileges enjoyed by the House of Commons at the commencement of the Constitution. The result is that these privileges are expressly conferred by Article 194 Clause (3) as if they were written out in pen and ink in that clause. They are rights conferred by the Constitution like any other rights and to determine their scope and effect is obviously a task which legitimately belongs to the judiciary under the Constitution. It is for the Courts to finally interpret and apply the Constitution

and to ensure that the different organs of the State function within the limits set for them by the Constitution.

The next step was to decide whether such a privilege, as claimed by the House, was possessed by the House of Commons in 1950. The privilege in question was the privilege of the House to regulate its internal proceedings without outside (court) interference. This privilege, in all its glory, was laid out in the case of Bradlaugh v. Gosett 12 Q. B.D. 271. The court was sure, as per the above decision, that the House of Commons did enjoy the privilege of deciding exclusively on its internal proceedings. But this does not mean that the privilege of the House of Commons should necessarily conform to the mandate of Article 194(3). As held in Jn Re Art. 143, all

privileges claimed by the House of Commons could not be practicably exercised by the legislatures in India owing to constitutional constraints. The question in each case would be whether the particular privilege claimed by the House of the legislature can be read into Article 194(3) and that would depend upon whether it is consistent with the basic structure and fabric of the Constitution and its material provisions. The court examined the conditions under which the decision in Bradlaugh was given. Bradlaugh was, even as per authorities like May and Gajendragadkar, J., the result of a trade-off between the House of Commons and the Judiciary in England, in order to diffuse a deadlock. The court allowed the House of Commons to keep two exclusive privileges, viz. the privilege to regulate its own internal proceedings and the privilege to exercise contempt powers. But here such a condition did not exist. As held by Bhagwaiti, J.: We have a written Constitution under which the Courts are constituted the final

interpreters of the Constitution and the laws and the entire basis on which the English Courts agreed to recognise this privilege in the House of Commons is absent

in our case and we would not, therefore, be justified in holding that this privilege which the House of Commons was by tacit agreement allowed to possess as a matter of give and take in order to end an unhealthy “dualism” is vested in the House of Legislature in India.

Chhabildas Mehta, MLA and Ors v. The Legislative Assembly, Gujarat State and Ors

211

It was held that such a privilege would nullify the power of judicial review enjoyed by the high courts in India under Article 226. The following words are illustrative:

The question is whether the privilege in Bradlaugh v. Gossett can fit in appropriately in this scheme of the Constitution. The privilege gives to the House the exclusive power to interpret the laws so far as the regulation of its internal proceedings is concerned and makes it the sole Judge of the lawfulness of its proceedings. If this privilege were

to be read in Article 194(3), the result would be that the House would have the sole

power to the exclusion of the High Court to interpret finally the provisions of the Constitution relating to procedure such as Articles 198, 209, 211 and 213 as also laws made by the Legislatures in so far as they relate to regulation of its internal proceedings and even if on an erroneous view of the law, the House has acted without jurisdiction or plainly in violation of the law, the High Court's jurisdiction under Article 226 would be excluded. It was concluded that since the power to decide its own privileges was not a constituent

power, it would also be subject to Article 226. Though Article 212(1) gave immunity to the House from scrutiny of any irregularity of internal proceedings, ‘if the proceeding suffers from lack of power or plain egregious violation of the law, the high court would have power to interfere with it in the exercise of its undoubted jurisdiction under Article 226, as did the Supreme Court in Satyapal’s case A. I. R. (1969) S.C. 910’. Moving on to the merits of the case the court had to see if the House acted outside its authority. The contention of the petitioners was that Rule 9 of the Assembly Rules, made under the authority of Article 208 of the Constitution, was binding and therefore only the Speaker could have adjourned the House. The basic issue was whether the rules framed under Article 208 were binding on the House at all times. Looking back at the privileges enjoyed by the House of Lords, the court concluded

that there was indeed a privilege to control its own conduct and procedure. “This being a privilege enjoyed by the House of Commons at the commencement of the

Constitution would

be incorporated in Article

194(3)

unless it is excluded by an

inconsistent provision of the Constitution’ and ‘Moreover, the rule-making power conferred under Article 208(1) is by its very words subject to the other provisions of the Constitution which include Article 194(3) and, therefore, the privilege claimed under Article 194(3) cannot be excluded on the ground that it is inconsistent with

Article 208(1)’. ‘Furthermore, the House which has the power to make Rules can also alter or rescind them. There is no limitation or restriction placed by the Constitution on the power of the House to modify or rescind the rules’.

The petitioners’ second argument was that the Speaker could not have negatived the point of order raised by the petitioners without complying with procedure. The court did not wish to enter into the controversy, which it had with difficulty left behind in the earlier parts of the decision. It was held: It may be that he was wrong in interpreting the Rule though, as we have shown, it is not possible to say that his decision was erroneous. But even if it was erroneous,

it was a matter within the jurisdiction of the Speaker and had a right to decide

212

Summary of Cases

rightly or wrongly according to his own view of the law. We must of course introduce here a qualification, namely, that if the interpretation placed by the Speaker were so plainly and egregiously wrong that one might say that he had really, in the guise of interpretation, ignored the rule or asserted himself against the law, no finality would

attach to his ruling. His ruling in such a case would suffer from the vice of being in

colourable exercise of power and it would be robbed of all finality. But apart from such a case, where a ruling given by the Speaker is within jurisdiction, it would be final so far as conduct of the business of the House is concerned.

The view taken by the Speaker was found to be reasonable and the court did not delve

into it further. If the Speaker's order was reasonable, then, the action of the Assembly also could not be challenged on the same grounds since the power to adjourn was not an exclusive power of the Speaker and was concurrently enjoyed by the Assembly

also. The majority ‘Merely power is

court did concede that this view might lead to the exercise of powers by the in a manner oppressive to the minorities. But, in the words of Bhagwati, J., because power may be abused is no ground for denying its existence. All likely to be abused’.

An alternative contention taken by the petitioners was that such an action of

the House was This point was that the House the contention

violative of their right to free speech as granted by Article 194(2). obviously raised owing to the apprehension that the court would hold indeed have the privileges as claimed for. The court did not accept of the petitioners. The said privilege is in fact enjoyed by the whole

Assembly against the outside world. It cannot be used against the Assembly itself:

Besides, this privilege was only available when the House was in session. The petition thus failed.

Case 18

D. Murugesan v. The Hon'ble Speaker (Thiru Sedapatti

R. Muthiah) Tamil Nadu Legislative Assembly MANU/TN/0062/1995: AIR 1995 Mad 260 GuLaB C. Gupta AND THANIKKACHALAM, J. J.

Date of Judgment: 20.07.1994

FACTS-IN-BRIEF

The case relates to publication in Dina-Karan, a Tamil daily published from Madras, of a portion of the proceedings in the Assembly which was ordered to be expunged. The issue having been raised in the House, the Editor of the daily was asked to send his explanation to the aforesaid publication which amounted to breach of privilege. The petitioner, however, did not send his explanation within the due date and sought further information. Subsequently, the petitioner submitted a detailed explanatory letter in which he denied that any breach of privilege had been committed by the newspaper in publishing the expunged portions of the proceedings. Thereafter, it was considered proper to refer the matter to the Privileges Committee to ascertain whether any case of breach of privilege was made out against the said petitioner and others concerned with the newspaper. The Privileges Committee in its report stated that it found the Editor of the newspaper guilty of two breaches of privileges and recommended a seven-day simple imprisonment for each of them. It was also recommended that two sentences should run concurrently. This report of the Privileges Committee was placed before the House which, by a resolution, accepted the same and sentenced him to simple imprisonment for seven days for the aforesaid breaches of privilege. Before arresting the petitioner, the writ petition was filed challenging the legal validity of the aforesaid sentence. The petition was heard by learned Single Judge of the court who was pleased to order notice of the petition to be sent to the respondents.

214

Summary of Cases

Meanwhile, on the basis of a request made by some of the Members and the Chief Minister to revoke the sentence and instead warn the petitioner not to publish such

proceedings,

the House passed a resolution revoking the sentence. However, when

the newspapers reported the news of the writ petition being admitted and notices issued by the court, the Assembly once again discussed the issue and revoked the order of revocation of sentence earlier passed and restored the punishment imposed. Consequent upon the aforesaid resolution, the petitioner was arrested and detained in Central Jail, Madras. This led to the filing of the present writ petition. The legal and constitutional validity of the subsequent resolution of the Assembly, which restored the punishment, is the subject matter of this writ petition. ISSUES

1. Whether the petitioner, Muthupandian, has by publishing the expunged portions

of the proceedings of the House, committed any breach of privilege justifying the imposition of the sentence of imprisonment on him? 2. Whether the resolution dated 2 May 1994 revoking the sentence imposed on the

petitioner has the effect of finally closing the privilege issue? If so, whether the

resolution dated 5 May 1994, passed by the Legislative Assembly is constitutionally valid?

3. Whether the reimposition of sentence on the petitioner-Muthupandian by resolution dated 5 May 1994 was because he has moved W.P. No. 8529 of 1994 in this court? If so, whether it is in accordance with the Constitution? 4. Whether the petitioner-Muthupandian was entitled to notice of hearing by the Legislative Assembly before passing the resolution dated 5 May

1994? If so,

whether the said resolution is void for violation of principles of natural justice? DECISION

1. The Legislative Assembly has the power to prohibit the publication of its proceedings by virtue of Article 194(3) of the Constitution, which the House of Commons had at the time of commencement of our Constitution. The petitioner by publishing the expunged portion of the proceedings of the House had committed breach of privilege of the House. 2. The resolution revoking the sentence imposed on the petitioner has the effect of not only revoking the sentence, but also setting aside the decision about the guilt of the petitioner.

3. The right to move the high court under Article 226 of the Constitution is a constitutional right of a person which cannot be taken away by anyone. Punishing

a person for invoking jurisdiction of the high court may, therefore, amount to obstructing his approach to the court.

D. Murugesan v. The Hon’ble Speaker Tamil Nadu Legislative Assembly

215

SUMMARY OF THE JUDGMENT Gulab C. Gupta, J. After making preliminary observations about the non-appearance of some of the respondents and categorical assertion of the jurisdiction of the high court under

Article 226 of the Constitution to entertain the petition challenging the validity of

the conviction and sentence imposed above were examined. Question No. 1: The petitioner, respondent, stated that the Assembly proceedings in a newspaper inasmuch held in public. It was submitted during

for breach of privilege, the issues mentioned

in his explanation submitted to the third has no privilege against publication of its as the proceedings are of a public body and the hearing of the petition that the legislature

has not enacted any law defining its privileges and immunities and, therefore, there

is no justification in law for treating the impugned publication as an act of breach

of privilege. It is, therefore, submitted

that the petitioner could not be held in law

guilty of breach of any privilege and punished. The punishment imposed upon him is, therefore, claimed to be void and unconstitutional under Article 21 of the Constitution. The learned Advocate General appearing for the third respondent, however, submitted that even though the legislature had not enacted any law defining the privileges and immunities of the House, the privileges exist inasmuch as the House

had been enjoying from its very inception all those privileges which were enjoyed by

the House of Commons in England. He also submitted that one such privilege is the privilege to prohibit publication of its proceedings even though they were true and correct. It is, therefore, submitted that the petitioner has been rightly held guilty of breach of privilege and punished. After hearing learned Counsel and examining the relevant constitutional provisions

and the law laid down in M. S. M. Sharma v. Sri Krishna Sinha, (AIR 1960 SC 1186]; UP Assembly case, [AIR 1965 SC 745], A. M. Paulraj’s case [AIR 1986 Madras 248], it

was observed that these decisions clearly establish that the British House of Commons

had, on the date of commencement of our Constitution, the privilege of prohibiting publication of even a true and correct version of its proceedings including the power to punish any person committing breach of this privilege. Under the circumstances, the Assembly would have the power and the privilege of prohibiting publication of its proceedings and punish the person found guilty of breach of this privilege. It should also be accepted as well established that even when a Legislative Assembly held a person guilty of breach of this privilege and imposed punishment on him, the

said person would be entitled to challenge the constitutionality of his conviction and sentence under Article 21 of the Constitution. Article 21 of the Constitution, though

interpreted in a limited way in the beginning, has been after the decision in Maneka

Gandhi v. Union of India, receiving wider and comprehensive interpretation. Personal

liberty under this article now included right to privacy, right to speedy trial, right to legal aid, protection against custodial violence, right to medical assistance, right to shelter and even right to education up to the age of 14 as per Article 45. Similarly,

216

Summary of Cases

the word ‘life’ used in this article has been receiving wider and wider connotation and now includes right to live with dignity, right of livelihood or earning a living, right to education and even the right to a pollution free environment. Under the circumstances the right to life now means more than mere survival of animal existence. Similarly the word ‘procedure’ used in this article has come to mean a procedure which is not arbitrary, unfair or unreasonable. The court has even gone to the extent of holding that

if the punishment inflicted on a person is too cruel of torture even in the present day social background, it would be an unreasonable procedure. Under the circumstances, it can easily be held that procedure which is arbitrary, oppressive or fanciful is no procedure at all. Reasonableness should, therefore, be the basis for exercising the power or authority in our conditional discipline. After the decision of the Supreme Court in Triveniben v. State of Gujarat [AIR 1989 SC 1335] it should be treated as well settled that procedural fairness required by Article 21 has to be observed at every stage till the last breath of the life of the accused. That is the reason why the concept was extended to the disposal of mercy petitions under Article 72 of the Constitution. After the decision in Antulay v. Nayak [AIR 1988 SC 1531], even the judicial orders are not free from the foresaid test. Paragraphs 61, 62 and 80 of this judgment also lay down that a decision which violates the basic principles of natural justice, i.e. an order passed behind the back of a party, is contrary to the procedure established by law and, therefore, violative of Article 21 of the Constitution. Under the circumstances, even the view of the court in A. M. Paulraj’s case (supra) may require reconsideration, in some suitable case in future. The specific question, however, is whether the first respondent-legislature had the power and privilege of punishing the petitioner for having published the expunged portions of the proceedings of the House? That the Houses of Legislature in India have the privilege to prohibit publication of even the true and correct report of the debate of the House is well established. The Supreme Court in Sharma’s Case | considered parliamentary practices in England and held that the privilege extended to prohibit the publication of any report of the debate or proceedings. The court also

noticed with reference to the history of parliamentary privileges in England that the House of Commons had actually prohibited publication of its proceedings and not to intermeddle with the same by passing resolutions in this behalf. The court also

noticed that the House had at no point of time subsequent to its resolutions given up this valuable privilege. It was, therefore, held that the House of Commons had enjoyed, at the commencement of our Constitution, the power and the privilege of prohibiting publication of even a true and faithful report of the debate or proceedings that take place within the House. A fortiori it was held that the House had at the relevant time the power and privilege of prohibiting publication of an inaccurate or garbled version of such debates or proceedings. The court, therefore, held that the House of Legislatures of the States also have this privilege because of the latter part of

Article 194(3) of the Constitution.

The privilege, however, is the privilege to prohibit publication of any report of the debates or proceedings. Since it is couched in negative language, it will require

D. Murugesan v. The Hon’ble Speaker Tamil Nadu Legislative Assembly

217

some action on the part of the House to assert the privilege and prohibit publication.

The learned Advocate General, however, submitted that even this requirement would be satisfied in this case because the Speaker had clearly and specifically ordered that the offensive parts be expunged from the proceedings of the House. This, according to the Learned Advocate General, amounts to an order asserting the said privilege. Reliance has been placed on observations in paragraph 32 in Sharma’s Case I, which reads as under: The effect in law of the order of the Speaker to expunge a portion of the speech of a member may be as if that portion had not been spoken. A report of the whole speech in such circumstances, though factually correct, may, in law, be regarded as perverted and unfaithful report and the publication of such a perverted and unfaithful report

of a speech, i.e., including the expunged portion in derogation of the orders of the Speaker passed in the House, prima facie, be regarded as constituting a breach of the

privilege of the House arising out of the publication of the offending news item and that is precisely the charge that is contemplated by the Committee’s resolution and which the petitioner is by the notice called upon to answer.

Therefore, it must be held that the petitioner has, by publishing the expunged portions

of the proceedings of the House, committed breach of privilege of the House. In view

of this, it is not necessary for this court to express any opinion as to the sentence inasmuch as not only the question whether there has been any breach of privilege of the House but also the sentence to be imposed for the same is within the exclusive

jurisdiction of the House. The complaint of the petitioner Opportunity to present his case before the whole House serious consideration inasmuch as the petitioner has been by the third respondent, the explanation submitted by him of the Privileges Committee. Principles of natural justice

about denial of reasonable also does not deserve any given such an opportunity has received consideration as is well known is not an

unruly horse (see Chairman, Board of Mining Exam v. Ramjee [AIR 1977 SC 965]) and

the whole purpose of its compliance is to ensure fair play in action (K. L. Tripathi v.

State Bank of India [AIR 1984 SC 273]). In this view of the matter, the resolution

dated 30 April 1994 of the first respondent-Assembly holding the petitioner guilty of breach of privileges and imposing sentence of one week’s simple imprisonment must

be held to be legal and valid. It must also be held that though the said decision can be challenged on the ground of violation of Article 21 of the Constitution, this court finds no such violation in the instant case. In this context, the defence of the petitioners that they represent a free Press and it is their duty to inform the people of the happenings in a public body like the Assembly, may also be examined. That this country has ‘free Press’ is a basic truth, but it is an incomplete statement. Correct statement should be that this country has ‘Free and responsible Press’ engaged in educating public opinion in our constitutional discipline. Such a Press works within our constitutional framework and ensures its compliance by all. The Press, in the context of this constitutional discipline, cannot invade the

privacy of even a public like the Assembly or a public person like the respondent-

218

Summary of Cases

Speaker. The petitioners were expected to be aware of the Supreme Court decision in Sharma’s case I and claim any right under Article 19 of the Constitution. This decision clearly lays down that no right to publish debates of the Assembly can be claimed by the Press except under the discipline under Article 194(3). This court has, therefore, no hesitation that the defence was rightly not accepted by the Assembly. The defence, in the opinion of this court, only indicates that the petitioners have an exaggerated

notion about their status as Press-persons and deserves the respect shown. Question No. 2: It was contended on behalf of the petitioner ‘that the resolution regarding imposing punishment already passed by this House on 30 April 1994 may be cancelled” has the effect of putting an end to the whole issue of breach of privilege

and closing the matter forever. The learned Advocate General, however, submitted

that the effect of this resolution is not to close the issue of breach of privilege as such

but only suspend the sentence imposed on the petitioner. Before considering these rival contentions it is necessary to note the resolution dated 30 April 1994, which is as under: This House accepts the recommendation contained in the report as per Rule 229(d) of the Assembly Rules. The recommendation of the Committee of privileges is as under:

The Committee,

therefore, considers, that the editor of the newspaper has

wantonly committed these mistakes. The Committee decides that one week’s simple

imprisonment for each of the and taking into consideration and the same news editor the for the above-said two counts

rwo offences should be awarded to the then news editor the fact that the two offences were committed by one Committee recommends that one week imprisonment should be imposed on Thiru A. Muthupandian.

It should, therefore, be clear that the House has not only accepted the recommendation that the petitioner was guilty of breach of privileges but also the recommendation

that he should be given one week’s simple imprisonment for each of those breaches, the sentences to run concurrently. Since the Assembly has accepted both these

recommendations, there would be no justification for the submission that the resolution dated 2 May 1994 has the effect of cancelling only the sentence part of it.

The reasonable interpretation would be that the Assembly had cancelled its decision

not only in relation to the conviction of the petitioner for breach of privileges, but also

the sentence imposed upon him. If this is considered in the context of ‘magnanimity’ reflected in the speech of the Chief Minister, the only inference would be that the

respondent-Assembly had closed the entire matter forever and asserted its magnanimity in spite of the adverse attitude of the Editor like the petitioner. There is, therefore, no escape from the conclusion that the resolution dated 2 May 1994 has the effect of not

only revoking the sentence but also setting aside this decision about the guilt of the

said petitioner. It is also the considered view of this court that the interpretation put by the Learned Advocate General to the resolution dated 2 May 1994 would introduce an

element of unreasonableness and arbitrariness in the matter and make the decision

D. Murugesan v. The Hon’ble Speaker Tamil Nadu Legislative Assembly

219

violative of Article 21 of the Constitution. It would only mean that the Assembly is claiming the right of inflicting the sentence on the accused held guilty by it at any time

in future and thereby keeping the accused in undue physical and mental strain. To keep the Damocles’ Sword hanging on the head of such a person would not be within

the constitutional discipline mandated by Article 21. In this view of the matter, this

court has no hesitation in holding that the respondent-Assembly had by its resolution dated 2 May 1994, closed the entire issue of breach of privilege by the petitioner and given, in its magnanimity, the freedom lost by him consequent upon his convictions. Question No. 3: Though our decision to the question no. 2 by itself is sufficient to hold that the resolution dated 5 May 1994 is unconstitutional, it requires

consideration whether the Assembly could re-impose the sentence on a person held

guilty of breach of privilege only because he has moved the high court under Article 226 of the Constitution of India challenging the validity of the sentence imposed upon him. The right to move the high court under this article is a constitutional

right of a person which cannot be taken away by anyone. Punishing a person for invoking the jurisdiction of the high court may, therefore, amounts to obstructing his approach to the court and may be viewed seriously. There had been instances where the courts have viewed such obstruction as amounting to contempt of court. Be that

as it may, depriving a person of his personal liberty only because he has approached the court would amount to violation of his fundamental right under Article 21 of the Constitution and render the action illegal and unconstitutional. Such an action would

also be violative of Article 14 of the Constitution. In this view of the matter, if the

approach of the petitioner to this court by filing a writ petition be the only basis for

the resolution dated 5 May 1994, the same would be violative of Article 14 and 21 of

the Constitution. A perusal of the proceedings dated 5 May 1994, however, indicates that though the debate in the House has started because of the order of this court admitting the writ petition of the petitioner, the same is not the only reason for passing the resolution.

Since the resolution dated 5 May 1994 is being invalidated by us on the ground that

the cause of action for imposing any sentence on the petitioner did not exist on that

day, it is really not necessary to consider the last question which must be left to be

decided in some suitable case in future.

In view of the aforesaid discussion,

H.C.P

No. 762 of 1994 succeeds and is

allowed by quashing the sentence imposed on the petitioner. The warrant issued by

the respondent no. | against him is also quashed. Since the said petitioner is on bail as per the orders of this court, the bail bonds furnished by him are hereby cancelled and he is set free. W.P. No. 8529 of 1994 is, however, dismissed. No costs.

Case 19

Dr Jatish Chandra Ghosh v. Harisadhan Mukherjee and Ors AIR 1956 Cal 433: 60 CWN

971

DEBABRATA MOOKERIEE, J.

Date of Judgment: 11.04.1956

FACTS-IN-BRIEF It appears that in January 1954, the petitioner, a Member of the West Bengal Legislative

Assembly, gave notice of his intention to ask certain questions in the West Bengal Legislative Assembly. The questions were, however, disallowed in accordance with the Rules of Procedure for the conduct of business of that Assembly. The disallowance was intimated to the petitioner on 16 February 1954. After a whole year the petitioner

published

the questions

in Janamat,

a vernacular

fortnightly,

in its issue of 28

February 1955. The questions were prefaced by a note that they were intended for the enlightenment of the petitioner's constituency, but that they had been disallowed by the Speaker, and consequently they could not be raised in the Legislative Assembly. On 29 July 1955 the opposite party Harisadhan Mukherjee preferred a complaint charging the petitioner under Section 500 of the Indian Penal Code and the Editor

and the Printer and Publisher of Janamat under Section 501 of the code. The learned

Magistrate who dealt with the matter examined the complainant on oath and directed the issue of process against the petitioner and opposite parties—Bhupati Charan

Majhi and Raghunath Dalai.

The complainant's case was eventually transferred for disposal to Sri B. B. Majumdar, Magistrate, 1st Class, Midnapore, before whom a preliminary objection was raised

as respects the maintainability of the proceedings against the petitioner. It was contended, inter alia, that the petitioner being a Member of the West Bengal Legislative

Assembly was entitled to certain immunities and privileges under Article 194 of the

Constitution of India, which constituted a bar to the prosecution of the petitioner. The learned Magistrate overruled the contention by an order dated 11 October 1953.

Dr Jatish Chandra Ghosh v. Harisadhan Mukherjee and Ors

221

The petitioner thereafter applied to this court for transfer of the proceedings against

him under the provisions of Article 228 of the Constitution. That application was, however, refused on 9 December 1955 by a Bench presided over by the Hon’ble

Chief Justice presumably in view that the proceedings, out of which it arose, did not

involve any substantial questions of law as to the interpretation of the Constitution, the determination of which was considered necessary for a proper disposal of the case.

Thereafter, the revision petition was filed in the high court. ISSUE

Whether a publication by a Member of Legislative Assembly of ‘disallowed questions’ made outside the authority of the House enjoys immunity under Article 194 of the Constitution? DECISION

A member of the Legislative Assembly cannot enjoy any further or higher constitutional rights of speech and publication than those guaranteed under Clause (1) and (2) of Article 194. In this view the author of publication, which was made outside the authority of the House and though said to be a communication between a Member of the Legislature and his constituency, enjoys no more privilege than is enjoyed by an ordinary citizen.

SUMMARY OF THE JUDGMENT Debabrata Mookerjee, J. The petitioner, before the court, raised the plea of malice and the plea of public good sought to be achieved by means of publication and also raised the question of the proceedings being barred by reason of the provisions of Article 194 of the Constitution.

On an examination of relevant constitutional provisions it was observed that it is reasonably clear that the immunity from liability to prosecution extends to only what is said within the walls of the legislature. In a democratic set-up, this freedom of speech is quite conceivably an essential condition, which guarantees the proper functioning of the Constitution. It helps to secure a free, frank and fearless discussion

in the legislature and subordinates, possible disadvantage to an individual to the general good and protects from consequences, which such discussion might entail. Similarly, official publications of the proceedings of the legislature carry immunity for all concerned or connected with such publication. This is only a corollary to the right of free speech, which would be liable to be defeated if an official publication exposed to liability those responsible for the discussion or those connected with the publication. Rights, privileges and immunities other than these are left to be secured

222

Summary of Cases

by legislative measures and pending their adoption they will be those of the House of Commons at the commencement of the Constitution. Now that the ground is clear, it is to be considered if the contention raised by the petitioner is tenable. The mere fact that he is a Member of the Legislative Assembly will not spell out for him an absolute privilege. In order that he might successfully plead privilege and claim immunity from proceedings in the court, it has to be established that the prosecution relates to something said in the Assembly or that the publication

in question is by or under the authority of the House. The questions, which are said to be defamatory and upon which the charge is founded, having been disallowed were never asked in the House with the result that they cannot be said to form part of the proceedings of the House as a result of the disallowance by the Speaker. The questions were left out of the proceedings with the consequence that they did not acquire that impress which alone could impart to their author immunity from liability to proceedings in court. Reliance has been placed on a decision of the Rangoon High Court in the case

of C. P Khin Maung v. Au Eu Wa 1936 Rang [425 (AIR V 23) (FB) (A)], wherein

the learned Judges held that the phrase ‘by reason of his speech or vote’ included any

utterance made at any time in any such council and there was no reason to confine the

expression to formal discourse forming part ofa debate. The question, which was said to be defamatory in that case, had in fact been allowed to be asked and consequently it formed part of the proceedings of the council. Although the question offended against the standing orders it was nevertheless allowed to be asked and that being so, the

infraction of the standing orders did not destroy the statutory privilege or affect the immunity of the Member concerned for anything said in the council. There is thus no doubt that the question, by being asked, formed part of the proceedings of the House. The language of Clause (2) of Article 194 is even wider. The immunity merely to ‘speech or vote’, but to anything said or any vote given in the any of its Committees. This decision is of no assistance to the petitioner the questions in the present case having been disallowed never became

proceedings of the House, whereas in the Rangoon be asked and was in fact asked. It has been argued on behalf of the petitioner is involved, a construction, which is favourable to right, has to be adopted. ‘When the Constitution

extends not legislature or inasmuch as a part of the

case the question was allowed to

that where a constitutional right the citizen in furtherance of such confers in clear terms a right or

privilege to be exercised only in well-defined circumstances, it would, in my view, be utterly wrong to dispense with proof of existence of circumstances which constitutes

a condition precedent to the exercise of such right or the claim of such privilege’. Immunity from liability to proceedings in court can only be claimed on proof of the fact that what was said was a part of the proceedings of the legislature or that the offending words were part of the proceedings published under authority. It cannot be said that the questions in the present case were part of the proceedings of the West Bengal legislature, nor their publication in the fortnightly Janamat could by any means be said to have been under the authority of the House.

NN

OO

Dr Jatish Chandra Ghosh v. Harisadhan Mukherjee and Ors

ES

le

223

The argument on behalf of the petitioner is sought to be reinforced by reference to certain excerpts from May’s Parliamentary Practice. It is said that apart from proceedings of the House, strictly so called, a Member of a legislature possesses certain privileges including the privilege of immunity from liability to proceedings in court as a necessary complement of his functions. After considering the submissions made, it was held that it cannot be said that the petitioner’s argument has unqualified support of May’s high authority. It was observed that the express constitutional provisions in Clauses (1) and (2) of Article 194 are in my view a complete and conclusive code as

respects the privilege of free speech and immunity from liability to proceedings in court for anything said in the legislature or for publication of its reports. Anything which falls outside the ambit of these provisions is, therefore, liable to be dealt with by the courts in the country in accordance with the law of the land.

As to the emphasis is laid on behalf of the petitioner on the opening words of Clause (3) of Act 194 and the argument that matters not strictly covered by the

provisions of Clauses (1) and (2) are to be dealt with in accordance with Clause (3). It was observed that Clauses (2) and (3) of the article are mutually exclusive and the

powers, privileges and immunities of the latter clause can have nothing whatever to do with those of Clause (2). The two clauses cannot possibly cover the same field. Quite obviously Clause (3) contemplates cases not provided for in Clauses (1) and (2). If therefore the case is covered by Clause (2) it would be idle to contend that

the provisions of Clause (3) can be called in aid and reference made to rights and privileges in the House of Commons as they obtained at the commencement of the Constitution. In this view the contention was negatived.

Further, relying on the observations made in Dr Suresh Chandra Banerjee v. Punit Goala [AIR 1951 Cal. 176}, it was finally observed that the distinction sought to be made on behalf of the petitioner that the publication in the present case was made by him as a Member of the Assembly is not appreciable. The rights of a Member are welldefined rights. He cannot be prosecuted for anything said in the Assembly Chamber, nor can he be held liable in respect of any publication under the authority of the House

of any report or proceedings. The powers and privileges referred to in Clause (3) of the

article being those not connected with speech or publication cannot be relied upon to give him an imagined protection. As a Member of the Assembly the petitioner cannot have any further or higher constitutional rights of speech and publication than those guaranteed under Clauses (1) and (2) of Article 194. In this view, the author of the

publication, which is said to be a communication between a Member of the legislature and his constituency, enjoys no more privilege than is enjoyed by an ordinary citizen.

Case 20

Dr Jatish Chandra Ghosh v. Harisadhan Mukherjee and Ors AIR 1961 SC 613 B. P. Sinna, C. J. 1., S. K. Das, A. K. SArKAR,

N. RaJAGOPALA AYYANGAR AND J. R. MUDHOLKAR, J. J. Date of Judgment: 16.01.1961

FACTS-IN-BRIEF

The appellant was an elected Member of the West Bengal Legislative Assembly. In January 1954, the appellant gave notice of his intention to ask certain questions in the Assembly. Those questions were disallowed in accordance with the Rules of Procedure for the conduct of business of the Assembly. In February 1954, the appellant came to know that the questions proposed by him had been disallowed. The appellant published the questions that had been disallowed in a local journal called Janamat in its 28 February 1955 issue.

In July 1955, the first respondent, whose conduct formed the subject matter of the question, and then functioning as a sub-divisional Magistrate filed a complaint against the appellant among others. The petition of complaint alleged that the appellant had made and published scandalous imputations against him intending them to be read by Members of the definite public, that those imputations were false and unfounded and had been made with the intention of harming or with the knowledge of having reason to believe that they would harm the reputation of the complainant and that the complainant felt greatly aggrieved and harmed in mind and reputation. ISSUE Does the publication of a disallowed question by a Member of an Assembly come within the powers, privileges and immunities of the Members of the House?

Dr Jatish Chandra Ghosh v. Harisadhan Mukherjee and Ors

225

DECISION Finally, the apex court came to the considered conclusion that the legal position is undisputed that unless the appellant can make out an absolute privilege, in his own favour, in respect of the publication, which is the subject matter of the charge in this case, the prosecution against him cannot be quashed. Given that he has no such absolute privilege, he must take his trial and enter upon his defence, such as he may have.

SUMMARY OF THE JUDGMENT The answer to the question raised depends upon finding out what are the powers, privileges and immunities of the Members of the House of Commons of Parliament of the United Kingdom at the commencement of the Constitution. The petitioner raised, by way of preliminary objection to the criminal prosecution,

the question of his absolute privilege and immunity from prosecution under the

provision of the Constitution. The learned Magistrate overruled the objection, holding that the privilege claimed by the accused was not an unqualified one. He relied on a

judgment of Dr Suresh Chandra Banerjee v. Punit Goala [55 Cal WN

745: (AIR 1951

Cal 176)] in support of his conclusion that the first accused before him, now appellant, was not entitled to the privilege and immunity claimed by him. Later when the petitioner moved to the Calcutta High Court, the learned Single Judge observed, dismissing the application that a Member of the Legislative Assembly had no absolute privilege in respect of the questions sought to be asked by him, which had been disallowed but he had published them all the same. It was also pointed out

that the questions had never been asked in the House and, therefore, could not be said

to form part of the proceedings of the House. He further held that the publication in the journal at the instance of the appellant could by no means be said to have been under the authority of the House. Before the Supreme

Court,

the appellant claimed

that there was an absolute

privilege in favour of a Member and, therefore, he could not be prosecuted for having published the questions he sought to put, but had been disallowed by the Speaker. But the Supreme Court finally rejected the contention of the appellant by relying on Wason v. Walter, (1868) 4 QB 73 at p. 85, where Cockburn, C. J. observed thus:

It is to be observed that the analogy between the case of reports of proceedings of courts of justice and those of proceedings in Parliament being complete, all the limitations

placed on the one to prevent injustice to individuals will necessarily attach on the

other; a garbled or partial report, or of detached parts of proceedings, published with intent to injure individuals, will equally be disentitled to protection.

The appeal was accordingly dismissed.

Case 21

Dr Kashinath G. Jalmi and Anr v. The Speaker and Ors AIR 1993 SC 1873: 1993(2) SCALE 280: (1993) 2 SCC 703: [1993] 2 SCR 820 MANU/SC0293/1993 J. S. Verma,

P. B. SAwant AND N. M. Kas iwat,

J. J.

Date of Judgment: 31.03.1993

FACTS-IN-BRIEF Shri Ravi S. Naik, Shri Ratnakar M. Chopdekar and Shri Sanjay Bandekar were duly elected Members of the Goa Legislative Assembly in the elections held in 1989. Shri Ravi S. Naik assumed the office of the Chief Minister of the State of Goa and he

formed his Council of Ministers, which included Shri Chopdekar and Shri Bandekar

as Ministers. On the same day, Dr Kashinath Jalmi, also a Member of the Legislative Assembly, presented a petition to the Speaker, seeking disqualification of Shri Ravi

S. Naik as a Member of the Legislative Assembly on the ground that he had voluntarily

given up the membership of his political party. The Speaker passed an order under paragraph 6 of the Tenth Schedule to the Constitution, disqualifying Shri Ravi Naik on the ground of defection. On this, Shri Ravi Naik filed a writ petition at the Goa

Bench of the Bombay High Court challenging the order of his disqualification made

by the Speaker under the Tenth Schedule of the Constitution. The high court passed an interim order in that writ petition staying operation

of the order of disqualification made by the Speaker. During the pendency of this writ petition, Shri Simon Peter D'Souza was elected as the Deputy Speaker of the

Goa Legislative Assembly; and the Speaker, Sirsat, was removed from the office of

Speaker and the Deputy Speaker, and Shri Simon Peter D'Souza began functioning as the Speaker. Naik made an application to Shri Simon Peter D'Souza, the Deputy Speaker functioning as the Speaker of the Goa Legislative Assembly for review of the

order dated of his disqualification made by the Speaker, under the Tenth Schedule. The Acting Speaker, Simon Peter D’Souza, made an order, in purported exercise of —

-_

.

.e

nT

ON

CZ

Dr Kashinath G. Jalmi and Anr v. The Speaker and Ors

A

227

the power of the review under the Tenth Schedule, setting aside the order made by the Speaker, Shri Sirsat, disqualifying Ravi S. Naik as a Member of the Goa Legislative

Assembly. Thereafter, the writ petition filed by Ravi Naik challenging the order of

his disqualification made by the Speaker was dismissed and not pressed by him.

Later, another writ petition was filed by Dr Kashinath Jalmi and Ramakant Khalap

challenging the order of review passed by the Acting Speaker, inter alia, on the ground that the Speaker did not have any power to review the earlier order of disqualification made under the Tenth Schedule of the Constitution of India. The high court by the order upheld the preliminary objection of Shri Ravi S. Naik that the writ petition since filed ten months after the date of the order, was liable to be dismissed at the admission stage on the ground of laches. This order dismissing the writ petition was challenged before the court. Two more petitions were also filed challenging the order of review dated 8 March 1991 passed by the Acting Speaker, inter alia, on the ground that the Speaker did not have any power to review the earlier order of disqualification made under the Tenth Schedule to the Constitution of India. ISSUES

1. Are the impugned orders of the high court dismissing the writ petitions merely on the ground of laches susceptible to interference under Article 136 of the Constitution in the present case?

2. Does the Speaker, acting as the authority under the Tenth Schedule of the Constitution, have no power of review so that any order made by him in purported exercise of the power of review is a nullity? DECISION

1. Exercise of discretion by the court, even where the application is delayed, is to be governed by the objective of promoting public interest and good administration;

and on that basis, it cannot be said that discretion would not be exercised under

Article 136 in favour of interference where it is necessary to prevent continuance

of usurpation of office or perpetuation of an illegality. 2. The existence of judicial review against the Speaker’s order of disqualification made under paragraph 6 is itself a strong indication to the contrary that there can be no inherent power of review in the Speaker read in the Tenth Schedule by necessary implication. The need for correction of errors in the Speaker's order made under the Tenth Schedule is met by the availability of judicial review against

the same as held in Kihota Hollohan.

SUMMARY OF THE JUDGMENT Shri Ram Jethmalani for the appellant, and Shri E S. Nariman for the respondent, submitted that by the very nature of the high office of the Speaker and the finality

228

Summary of Cases

attaching to the order made by the Speaker under paragraph 6 of the Tenth Schedule, the power of the review inheres in the Speaker for preventing miscarriage of justice in situations when the Speaker himself is of the view that continuance of his earlier order of disqualification would perpetuate injustice. It was further submitted by them that in view of the limited scope of judicial review of the Speaker's order of disqualification made under paragraph 6 of the Tenth Schedule, as held in the majority opinion in

Kihota Hollohan v. Zachilhu and Ors [1992 Supp. 2 SCC 651], it is implicit that at least a limited power of review inheres in the Speaker to correct palpable errors outside

the scope of the limited judicial review available against the order of disqualification made by the Speaker under the Tenth Schedule. The court confined itself only to the facts and the arguments relating to the aforesaid two questions. Before the court, for the purpose of the appeals, it was assumed by both sides that the Deputy Speaker functioning as the Speaker would have the powers of the Speaker under the Tenth Schedule including that of review, if any. The further question whether the Deputy Speaker, who discharging the functions of the Speaker, has all the powers of the Speaker under the Tenth Schedule was, therefore, undisputed. On the issue of laches, the view of the high court was that the impugned orders of review having been made by the Acting Speaker on 7 and 8 March 1991, the writ

petitions challenging them filed on 7 January 1992, 8 January 1992 and 10 February

1992 were highly belated and, therefore, liable to be dismissed merely on the ground of laches. On the issue of laches, one of the submissions of Shri Nariman was that even though there is no period of limitation prescribed by statute for filing a writ petition, yet in a case like the present, the apt analogy is of an election petition calling in question an election, which is required to be filed within 45 days from the date of

election of the returned candidate, as provided in Section 81(1) of the Representation

of the People Act, 1951, to indicate that unless such a challenge is made prompdly, the courts would refuse to examine such a question after the lapse of a reasonable period. On this basis, he argued that a writ petition filed after ten months of the date of the order of review made by the Speaker acting under the Tenth Schedule, must be treated as unduly delayed and is liable to rejection on the ground of laches, as has been done by the high court in the present case. The court refused to accept this. As per the court, the remedy of an election petition is statutory, governed by the limitation prescribed therein, unlike the remedy under Article 226 of the Constitution. That apart, the analogy which is more apposite is the decision on questions as to the disqualification of Members in accordance with Article 103 in the case of a Member of Parliament or Article 192 in the case of a Member of a House of a Legislature of a State. For raising a dispute, giving rise to any question

whether a Member of a House has become subject to any of the disqualification mentioned

in Clause

(1) of Article

102 or 191, as the case may be, there is no

prescribed limitation, and so also for challenging the decision rendered under Article 103 or 192 by a writ petition. The question of disqualification of a Member on the ground of defection and the Speaker’s order thereon, rendered under the Tenth

EEE

Dr Kashinath G. Jalmi and Anr v. The Speaker and Ors

Oe

_

229

Schedule, is of a similar nature and not based on the result of an election which

can be challenged only by an election petition in accordance with the provisions of Representation of the People Act, 1951. The court also referred to the decision by a Constitution bench in Brundaban

Nayak v. Election Commission of India and Anr, where there is no indication that the delay in raising the question of disqualification provides justification for refusing to decide the same, and the emphasis really is on a prompt decision by the

competent authority on the question being raised, since it is not in the interest of the constituency which such a Member represents to delay the decision. This decision is

an indication that the authority competent to decide the question of disqualification must act promptly in deciding the same, once it is raised even by a

citizen, in order

to prevent a disqualified Member from representing the constituency after incurring a disqualification subsequent to his election, so long as the question remains a live issue during the tenure of the Member. This aspect is significant for dealing with the question of laches in the present case. On the facts of the case, the court examining the claim for the issue of a writ of quo

warranto on the ground that Shri Ravi S. Naik, Shri Chopdekar and Shri Bandekar are holding public office, having suffered disqualification as Members of the Assembly subsequent to their election, and of them Ravi S. Naik continues to hold the high public office of Chief Minister of Goa. Reference was made by Shri Nariman to Rules 1 and 4 of Order 53 of the Rules of Supreme Court and Section 30 of the Supreme Court Act, 1981 (England), wherein limitation is prescribed for application for judicial review and delay in applying for relief is a ground for denying the relief,

unless the court considers that there is good reason for extending the period of making the application. As per the court, exercise of discretion by the court, even where the

application is delayed, is to be governed by the objective of promoting public interest and good administration; and on that basis it cannot be said that discretion would not

be exercised in favour of interference where it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality. Also, the court took note of the fact, that learned counsel for the respondents were unable to dispute that any other member of the public, to whom the oblique motives and conduct alleged against the appellants in the present case could not be attributed, could file such a writ petition even now for the same relief, since the alleged

usurpation of the office is continuing, and this disability on the ground of oblique motives and conduct would not attach to him. This being so, the relief claimed by the appellants in their writ petitions filed in the high court being in the nature of a class action, without seeking any relief personal to them, should not have been dismissed merely on the ground of laches. The motive or conduct of the appellants, as alleged by the respondents, in such a situation can be relevant only for denying them the costs even if their claim succeeds, but it cannot be a justification to refuse to examine the merits of the question raised therein, since that is a matter of public concern and relates to the good governance of the State itself.

230

Summary of Cases

On the second issue, i.e. the availability of power of review in the Speaker under the Tenth Schedule, the court said as follows: In Kihoto Hollohan

there was no difference between

the majority and minority

opinions on the nature of finality attaching to the Speaker's order of disqualification

made under para 6 of the Tenth Schedule, and also that para 7 therein was unconstitutional in view of the non-compliance of the proviso to Clause 2 of

Article 368 of the Constitution, by which judicial review was sought to be excluded.

The main difference in the two opinions was, that according to the majority opinion

this defect resulted in the Constitution standing amended from the inception with insertion of the Tenth Schedule minus para 7 therein, while according to the minority

the entire exercise of constitutional amendment was futile and an abortive attempt

to amend the constitution, since para 7 was not severable. According to the minority view, all decisions rendered by the several Speakers under the Tenth Schedule were,

therefore, nullity and liable to be ignored. According to the majority view, para 7

of the Tenth Schedule being unconstitutional and severable, the Tenth Schedule minus para 7 was validly enacted and, therefore, the orders made by the Speaker

under the Tenth Schedule were not nullity but subject to judicial review. On the basis

of the majority opinion, this Court has exercised the power of judicial review over the orders of disqualification made by the speakers from the very inception of the

Tenth Schedule, and the exercise of judicial review has not been confined merely to the orders of disqualification made after 12th November, 1991 when the judgment in Kihoto

Hollohan

was rendered. Venkatachaliah, J. (as he then was) wrote the

majority opinion and, thereafter, on this premise, exercised the power of judicial review over orders of disqualification made prior to 12.11.1991. The basic fallacy

in the submission made on behalf of the respondents that para 7 must be treated as existing till 12th November, 1991 is that on that view there would be no power of judicial review against an order of disqualification made by the Speaker prior to

12th November, 1991 since para 7 in express terms totally excludes judicial review.

Accepting the submission of learned Counsel for the respondents that para 7 must be read in the Tenth Schedule till 12th November, 1991 when the judgment in Kihoto Hollohan was rendered, for which submission they place reliance on the majority opinion in Kihoto Hollohan, would amount to taking a view contrary to the decision in Kihoto Hollohan itself, as indicated.

In our opinion there is no merit in the submission that the power of review inheres

in the Speaker under the Tenth Schedule as a necessary incident of his jurisdiction to decide the question of disqualification; or that such a power existed till 12th November, 1991 when the decision in Kihoto Hollohan was rendered; or at least a limited power of review inheres in the Speaker to correct any palpable error outside

the scope of judicial review.

In consequence, the orders dated 7 and 8 March 1991 made by the Acting Speaker

in purported exercise of the power of review were declared by the court as nullity and to be ignored. The order dated 13 December 1990, disqualifying Shri Chopdekar

Dr Kashinath G. Jalmi and Anr v. The Speaker and Ors

231

and Shri Bandekar, and dated 15 February 1991, disqualifying Shri Ravi S. Naik as Members of the Goa Legislative Assembly were upheld leaving Shri Chopdekar and Shri Bandekar the the option to pursue the remedy to challenge their disqualification. Since the writ petition filed in the high court by Shri Ravi S. Naik challenging his disqualification was not pressed by Shri Ravi S. Naik the said writ petition was dismissed.

Case 22

Dr Luis Proto Barbosa v. Union of India and Ors AIR1992 SC 1812: 1992 Supp (2) SCC 644 M. N. VENKATACHALIAH, S. C, AGRAWAL AND G. N. Ray, J. J.

Date of Judgment: 10.12.1991

FACTS-IN-BRIEF

The appellant was elected as Member of the Legislative Assembly of Goa as a candidate of the Congress

(I). On

22 January

1990,

he was elected Speaker of the House.

However, on 24 March 1990, the appellant, while holding the office of the Speaker, resigned from the Congress (I) with the avowed intention of forming a new party styled the ‘Goan People’s Party’. On 25 March 1990, the resignation was accepted by the Congress (I). Subsequently, a petition was filed by one of the Members of the House, alleging that the appellant had incurred disqualification from the membership

of the Legislative Assembly under the Tenth Schedule of the Constitution and that the appellant, accordingly, be so disqualified. The Legislative Assembly acting under paragraph 6 of the Tenth Schedule referred the decision on the question whether the appellant was so disqualified or not to a Member of the House elected in that behalf who found that the appellant had incurred such disqualification within the meaning of paragraph 2 read with paragraph 6 of the Tenth Schedule and made an order disqualifying the appellant. The legality of the proceedings culminating in this order of disqualification was assailed before the high court in the writ petition. The high court by its judgment under appeal dismissed the writ petition. Hence the present appeal. ISSUE

Whether the appellant can claim an exemption under paragraph 5 of the Tenth Schedule?

Dr Luis Proto Barbosa v. Union of India and Ors

233

DECISION

In the facts of this case, the appellant is not entitled to protection under paragraph 5

of the Tenth Schedule.

SUMMARY OF THE JUDGMENT On behalf of the appellant, it was contended that Rule 6(6) of the Goa Daman and Diu Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986, was not complied with. It was alleged that copies of the petition and the annexures had not been signed and verified as required by the rules. Secondly, it was contended that inasmuch as the appellant, after the filing of the petition for disqualification, had demitted the office of the Speaker, the enquiry for disqualification could not be proceeded with. While upholding the order of the high court on both the issues, the apex court observed that ‘the disqualification incurred is from the membership of the House. The subsequent resignation from the office of the Speaker does not bestow immunity from that liability for disqualification’. As regards the scope of exemption under paragraph 5 of the Tenth Schedule, the third contention urged by the appellant, the court observed that ‘the circumstances in this case are such that appellant cannot avail of that exemption. The exemption would be available where the Speaker in view of the high office of the Speaker on a question of propriety and to sustain the image of impartiality of that office, resigns from the membership of the political party to which he might have belonged prior to his election as Speaker. In the facts of this case that provision does not protect the appellant’. The appeal is dismissed accordingly. No costs.

Case 23

Dr Mahachandra Prasad Singh v. The Hon'ble Chairman, Bihar Legislative Council and Ors

AIR 2005 SC 69: 2004 (3) BLJR 2390: 2005 (1) JCR 114 (SC): JT 2004 (9) SC 218: 2004 (9) SCALE 81: (2004) 8 SCC 747: (2005) 1 UPLBE C 125 R. C. Lanorti, C. J., G.

RP MarHur AND PK. BALASUBRAMANYAN, J. J.

Date of Judgment: 27.10.2004

FACTS-IN-BRIEF

The petitioner was a Member of the Bihar Legislative Council, elected as a candidate of Indian National Congress. When the notification for holding elections to the Fourteenth Lok Sabha was issued, the petitioner contested the said election as an independent candidate. On petition filed by another Member of the Legislative Council,

proceedings

were

initiated

under

the provisions

of the Tenth

Schedule

and as a result the Chairman of the Legislative Council passed the impugned order

dated 26 June 2004 holding that the petitioner had contested the election for the Bihar Legislative Council in the year 1998 as a candidate of Congress Party and was a member of the said political party and that he had contested Lok Sabha Election, 2004,

as an independent candidate, and thus he had voluntarily given up his membership of the Congress Party and, therefore, he was disqualified from being a Member of the

House in view of paragraph 2(1)(a) of the Tenth Schedule read with Article 191(2) of

the Constitution and the seat held by him in the House has become vacant. ISSUE

Whether the petitioner had incurred any disqualification within the meaning of paragraph 2 (1)(a) of the Tenth Schedule?

Dr Mahachandra Prasad Singh v. The Hon’ble Chairman, Bihar Legislative Council

235

DECISION

In the fact and circumstances of the case there can be no escape from the conclusion

that the petitioner has incurred disqualification

under paragraph

Schedule and the decision of the Chairman is perfectly correct.

2(1)(a) of the

SUMMARY OF THE JUDGMENT It was contended, on behalf of the petitioner that in the absence of compliance of Rules 6 and 7 of the Bihar Legislative Council Members (Disqualification on Ground of Defection) Rules, 1994, the assumption of jurisdiction by the Chairman in initiating the proceedings, wherein the petitioner was held to be disqualified for being a Member of the House, was illegal. The second submission is that there was violation of principles of natural justice as the material relied upon by the Chairman was not disclosed to the petitioner nor was a proper opportunity of personal hearing afforded to him. The third and the last submission is that the petitioner had not voluntarily given up membership of a political party by contesting the Lok Sabha Election as an independent candidate and, therefore, he had not incurred any disqualification within the meaning of paragraph 2(1)(a) of the Tenth Schedule. In the present case, the Chairman of the Legislative Council has held that the petitioner had been elected to the Legislative Council on the ticket of Congress (I), but he contested the parliamentary election as an independent candidate. On these facts a conclusion has been drawn that he has given up his membership of Indian National Congress. This being a matter of record, the petitioner could not possibly dispute them, and that is why he has admitted these facts in the writ petition as well. In such a situation there can be no escape from the conclusion that the petitioner has incurred the disqualification under paragraph 2(1)(a) of the Schedule and the decision of the Chairman is perfectly correct. The question whether the provisions of rules 6 and 7 are so mandatory in nature that even a slight infraction of the Rules would render the entire proceedings initiated by the Chairman invalid, or without jurisdiction, is also of considerable importance. Sub-rule (1) of Rule 6 says that no reference of any question as to whether a

Member has become subject to disqualification under the Tenth Schedule, shall be

made, except by a petition in relation to such Member made in accordance with the provisions of the said rule and Sub-rule (6) of the same rule provides that every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The heading of Rule 7 is ‘PROCEDURE’. Sub-rule (1) of this rule says that on receipt of petition under Rule 6, the Chairman shall consider whether the petition complies with the requirement of the said rule; Sub-rule (2) says that if the petition does not comply with the requirement of Rule 6, the Chairman shall dismiss the petition. These rules have been framed by the Chairman in exercise of power conferred by paragraph 8 of Tenth Schedule. The purpose and object of the rules is to facilitate the job of the Chairman

236

Summary of Cases

in discharging his duties and responsibilities conferred upon him by paragraph 6, namely, for resolving any dispute as to whether a Member of the House has become subject to disqualification under the Tenth Schedule. The rules being in the domain of procedure are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. Being subordinate legislation, the rules cannot make any provision which may have the effect of curtailing

the content and scope of the substantive provision, namely, the Tenth Schedule. There

is no provision in the Tenth Schedule to the effect that until a petition which is signed

and verified in the manner laid down in the CPC for verification of pleadings is made to the Chairman or the Speaker of the House, he will not get the jurisdiction to give a decision as to whether a Member of the House has become subject to disqualification under the Schedule. Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a Member of the House becomes disqualified for being a Member of the House under paragraph 2 may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the Member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws

the petition it will make no difference as the duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision, viz. the Tenth Schedule. The object of Rule 6, which requires that every petition shall be signed by the petitioner and verified in the manner laid down in the CPC for the verification of pleadings, is that frivolous petitions making false allegations may not be filed in

order to cause harassment. It is not possible to give strict interpretation to Rules 6

and 7, otherwise the very object of the Constitution (Fifty-second Amendment) Act by which Tenth Schedule was added would be defeated. A defaulting legislator, who

has otherwise incurred the disqualification under paragraph 2, would be able to get away by taking the advantage of even a slight or insignificant error in the petition and thereby asking the Chairman to dismiss the petition under Sub-rule (2) of Rule 7. The

validity of the rules can be sustained only if they are held to be directory in nature as

otherwise, on strict interpretation, they would be rendered ultra vires. Thus, on account of non-filing of an affidavit as required by Sub-rule (4) of Order VI Rule 15 CPC, the petition would not be rendered invalid nor the assumption of jurisdiction by the Chairman on its basis would be adversely effected or rendered bad in any manner. Further, there is no substance in the contention that the Chairman of the Bihar

Legislative Council did not afford an opportunity of personal hearing to the petitioner. The facts show that the Chairman of the Bihar Legislative Council had afforded ample opportunity of personal hearing to the petitioner but he himself did not avail of it. Regarding the complaint of non-supply of the copy of the letter sent by Professor

Arun Kumar, leader of the Congress (I) in the Bihar Legislative Council, whereby he

had informed that the petitioner Shri Mahachandra Prasad Singh had ceased to be a

Dr Mahachandra Prasad Singh v. The Hon’ble Chairman, Bihar Legislative Council

237

member of the Congress (I) for violating the party discipline is concerned, the only relevant fact stated therein is that the petitioner had been elected as a Member of the Bihar Legislative Council on a Congress ticket but he had contested the parliamentary

election as an independent candidate. These facts have never been disputed by the petitioner in his replies, which he submitted before the Chairman of the Legislative Council and have also been admitted in paragraph 5 and 7 in the present writ petition. Therefore, the non-supply of copy of the letter of the leader of the Congress Legislative Party has no bearing at all as no prejudice can be said to have been caused to the petitioner and consequently in the facts of the present case, no principle of natural justice can be said to have been violated. The third submission of the petitioner has hardly any substance. In view of explanation (a) appended to sub-paragraph (1) of paragraph 2 of the Tenth Schedule, the petitioner shall be deemed to belong to the Congress Party by which he was set up as a candidate for contesting the election for Member of the Legislative Council in the year 1998. By contesting the parliamentary clection as an independent candidate,

he voluntarily gave up the membership of the Congress Party. In G. Viswanathan

and Ors v. The Hon'ble Speaker Tamil Nadu Legislative Assembly, Madras (supra), the

Bench quoted with approval the observations made in Ravi S. Naik v. Union of India (supra) in paragraph 11 of the reports that even in the absence of a formal resignation

from membership, an inference can be drawn from the conduct of a member that he

has voluntarily given up his membership of the political party to which be belongs. On the facts of the present case, it cannot be said that the finding arrived at by the Chairman of the Legislative Council that the petitioner gave up membership of the Congress Party to which he belonged is one which could not reasonably and possibly

have been arrived at. For the reasons discussed above, there is no merit in the writ petition and the same is hereby dismissed with costs.

Case 24

Durga Das Rathore v. The State of Bihar and Ors 1991 (1) BLJR 495 P. S. MisHRA AND B. Prasap, J. J.

Date of Judgment: 12.01.1990

FACTS-IN-BRIEF The petitioner filed the present application for a writ in the nature of quo warranto

or any other appropriate writ, order or direction to issue to the respondents quashing the oath administered to respondent no. 4 by the Speaker of Bihar Vidhan Sabha as a Member of the said Sabha and restraining respondent no. 4 from sitting and participating in the proceedings thereof. According to the petitioner, Shri Satya Narain Dudhani was elected by defeating respondent no. 4 Shri Uday Kumar Singh in the general assembly election held in March 1985. Shri Satya Narain Dudhani was declared elected on 7 March 1985. Respondent no. 4 challenged Shri Satya Narain Dudhani’s election by filing an election petition at the Ranchi Bench of this court on grounds of illegalities and irregularities alleged to have been committed by the Returning Officer and other officers in the counting of votes of various candidates at the election. The said election petition was

heard and the said court set aside the election of Shri Satya Narain Dudhani and declaring respondent no. 4 (Shri Uday Kumar Singh) elected.

On that very date (date of decision), learned counsel appearing for Shri Satya

Narain Dudhani made an oral prayer for stay of the operation of the order. However, an application in writing was filed subsequently, but it was heard on next day, i.e. 7 December, 1988. But meanwhile respondent no. 4, Shri Uday Kumar Singh, however, managed to obtain a certified copy of the judgment and got it sent to Patna through a special messenger. He met the Speaker, and he, on the next day of the judgment, got him sworn as a Member of the Legislative Assembly and also got the

judgment and swearing in of respondent no. 4, Shri Uday Kumar Singh, notified in

NO

Oe

te

Durga Das Rathore v. The State of Bihar and Ors

239

the Official Gazette on 7 December 1988 itself. However, when the application for stay was heard on 7 December 1988, operation of the judgment in the election case was stayed for fifteen days. Learned counsel for respondent no. 4, Shri Uday Kumar Singh, was also present in the court.

The petitioner also filed a Civil Miscellaneous Petition before the Supreme Court for stay of the operation of the judgment and order of this court. The appeal was

admitted but the court declined to grant any stay in favour of Shri Dudhani.

Now the petitioner has contended that the respondent no. 4 manipulated and the respondent no. 2 (Speaker of the Bihar Legislative Assembly) connived in administering oath of office to respondent no. 4, Shri Uday Kumar Singh, in violation of the constitutional mandates and in a hurried and hush-hush way, demonstratively been malafide.

ISSUES

1. Whether the Speaker can subscribe oath on behalf of the Governor under Article 188? 2. Whether making and subscribing oath before the Governor or some person appointed in that behalf by him is a proceeding of the legislature or not?

3. Whether by acting on behalf of the Governor of the State, the Speaker (respondent

no. 2) acts as an Officer or Member of legislature, exercising powers vested by or under the Constitution for regulating procedure or the conduct of business or for maintaining the order in legislature or not?

DECISION

The Governor administer the the Speaker or legislature but does not either

can delegate his power to the Speaker and he, in that capacity, can oath to the Member. Any person appointed by the Governor (maybe any Member of the House) shall not act in any proceeding in the as a delegate of the Governor of the State. He, by such appointment, become an officer or a Member of legislature of a State.

SUMMARY OF THE JUDGMENT The court has held the following in this case: As a result of the election to the Legislative Assembly a Member may qualify to take

his seat, but cannot do so without making and subscribing before the Governor or

some other person appointed on that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

When a general election is held as per Section 73 of the Representation of the People Act, the same is notified by the Election Commission in the Official Gazette after the results of the election in all the constituencies are declared by the Returning Officer

240

Summary of Cases

under the provision of Section 53, or as the case may be, Section 66, the names of the Members elected is notified. After such notification, the House or Assembly is deemed to be duly constituted. Shri Dudhani’s name was notified by the Election Commission

after the general elections. He became a Member of the duly constituted Assembly.

The court after discussing provision of Part VI of the Representation of the People

Act (Section 81, 100(1), 101, 107, 116) which contains provisions as to the disputes

regarding elections petitions held that:

A comprehensive look to these provisions, therefore, reveals that the High Court's order, under Section 98 declaring election of Shri Dudhani void and further declaring that the respondent No. 4 had been duly elected, took effect as soon as it was pronounced by Shahdeo, J. on 6.12.1988. That, however, was subject to the stay of operation of order by the High Court itself'as provided in Section 116-B and thereafter by the High Court as provided therein. With the declaration aforementioned the fourth respondent, became entitled to take his seat, subject to oath as contemplated in Article 188 of the Constitution of India. Provisions in Section 103 of the Act, however, are not empty formalities. The Court has been, as noticed above, enjoined

to communicate the substance of the decision to the Election Commission and the

Speaker or Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned and thereafter to send to the Election Commission an

authenticated copy of the decision. This is a provision to ensure that there is an official communication of the decision to the Election Commission and the Speaker or Chairman, as the case may be, and before such communication by the High Court

to examine whether any application for stay if filed before it or not and if stayed, such

communication also to go with a copy of the judgment and order to the Election Commission and the Speaker or Chairman, as the case may be, so that they may

know and accordingly act to postpone until such time, the appeal is finally disposed of by the Supreme Court any action pursuant to the judgment and order of the High Court under Section 98 of the Act.

A certified copy of the judgment or order of the court is no doubt duly authenticated information to all concerned about the decision taken by the court. That, however,

cannot be substituted to replace a communication or intimation by the high court. It appears that respondent no. 4 had obtained a certified copy of the judgment of the court and it also appears, that the certified copy of the judgment was presented

by him to the Speaker of the Assembly (respondent no. 2). Without for a moment suggesting that the Speaker could not take notice of the certified copy of the judgment to the court, it is indeed curious if not surprising why the Speaker accepted a certified

copy of the judgment of the court as the information about the result of the case of

respondent no. 4 against Shri Dudhani and without waiting even for authenticated

information as to whether any petition for stay of operation of the judgment and

order had been filed or not, and if filed with what result the Speaker proceeded to administer oath to respondent no. 4. Apart from the fact that the Speaker had not received any intimation from the court of the substance of its decision there was also no occasion for the Speaker

Durga Das Rathore v. The State of Bihar and Ors

24

to proceed without waiting for the publication of the result of the election by the Election Commission, as contemplated in Section 106, which states that after the receipt of any order made by the high court under Section 98 or Section 99, the Election Commission shall forward copies of the order to the appropriate authority and, in the case where such order relates to an election to a House of Parliament or to an election to the House or a House of the Legislature of a State as also to the Speaker or Chairman, as the case may be, of a House concerned and shall cause the order to

be published. A notification by the Election Commission in the Official Gazette, after the result of the election in all constituencies, of the name of the elected candidates is necessary before the Assembly or House is deemed to be duly constituted. It will not be possible thus to ignore the requirements of Section 106, for the publication in the Official Gazette of the State concerned the result of the election or declaration of the election by the high court under Section 98 of the act. It will be pertinent, therefore, to question whether the Speaker could allow respondent no. 4 to take his seat in a duly constituted House without publication of his name in the Official Gazette. Article 188 which mandates before taking a seat as a Member of the Legislative Assembly or the Legislative Council of a State for making and subscribing oath before the Governor or some persons appointed in that behalf by him will operate after the notification under Sections 71 and 73 of the Representation of the People Act. Therefore, after declaration of election under the high court order and its publication alone one may become entitled to take an oath under Article 188 of the Constitution of India. Respondent no. 4 took oath before the publication of the result of his election, but soon after the declaration of his election by the high court. As he could not do so as a result of the declaration of his election by the Returning Officer without its publication as required under Section 73 of the act he could not take oath without the publication merely on the basis of the declaration of the result of his election by the high court. After this, the court went on further to interpret words ‘in that behalf’ appearing in Article 188 of the Constitution. The court, for the interpretation of the words, took help of G. Vasantha Pai v. C. K. Ramaswami and Anr. [AIR 1978 Mad 342] decided

by the Madras High Court and held that:

The Speaker was authorised to act on behalf of the Governor of the State at oathtaking of even such person who subsequently became the members of the Assembly, these may be no defect in the membership of the respondent No. 4 and his function as a member of the Legislative Assembly.

On other issues the court made the following observation:

There can be no doubt to it that the Legislature is entitled to function unraveled of any interference by any person or authority. It may be seen that Article 188 of the Constitution has created an obligation for oath-taking before the Governor or some

person appointed in that behalf by him. Any person appointed by the Governor (may be the Speaker or any member of the House) shall not act in any proceeding in the Legislature but as a delegate of the Governor of the State. He by such appointment

242

Summary of Cases

does not either become an Officer or a member of Legislature of a State. He may

however for other reason and/or otherwise may become Officer or member of the Legislature. The Speaker (respondent No.

2) acted as a delegate of the Governor

before the respondent No. 5 took his seat in the House and thus acted before and not in the proceeding in the House.

Authorisation under Article 188 of the Constitution shall not make any person who shall act on behalf of the Governor, a person in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business or for maintaining the order in the legislature. Whether one is validly elected as a Member or not or whether one is eligible to sit as a Member in a House or not is a question which shall determine the very eligibility of the person concerned to take part in the legislature and to participate in the proceedings of the legislature. This being the position in law, this court’s jurisdiction under Article 226 of the Constitution shall in our view not be inhibited by the immunity of the proceeding of the legislature or those officers or Members in whom powers are vested by or under the Constitution for regulating the proceeding or the conduct of business or for maintaining the order in the legislature. Such an issue in our view shall be subject to judicial review and subject to jurisdiction

of this court under Article 226 of the Constitution of India. The court finally held that since Shri Dudhani’s appeal against the judgment of this court for grant of stay order before the Supreme Court has been declined, respondent no. 4 thus today is eligible to sit as a Member in the Bihar Legislative Assembly. For the above reasons the application was rejected.

Case 25

G. Vasantha Paiv. C. K. Ramaswamy and Anr AIR 1978 Mad 342: MANU/TN/0238/1978 V. RAMASWAMI, J.

Date of Judgment: 05.07.1978

FACTS-IN-BRIEF

The election of the petitioner to the Tamil Nadu Legislative Council was notified on 21 April 1978 and the Governor of Tamil Nadu appointed the second respondent as the person before whom the oath or affirmation may be made by the Members of the Legislative Council under Article 188. The petitioner was not willing to be sworn in by the second respondent and hence he presented himself in person before the Governor on 22 April 1978 and offered to take and subscribe the oath. The Governor was willing on that day to permit the petitioner to make and subscribe the oath before him if necessary arrangements could be made. The Secretary to the Tamil Nadu Legislative Council was requested to make the necessary arrangements enabling the petitioner to take the oath before the Governor. However, the Secretary failed to make the necessary arrangements. On 27 April 1978 the petitioner sent his oath in the form prescribed in the Schedule III duly signed by him in duplicate to the Governor. The petitioner filed a writ petition praying for issue of a writ in the nature of a declaration declaring that he having performed his obligations by

presenting himself before the Governor on 22 April 1978 to subscribe to the oath as

required by Article 188 of the Constitution of India and having further informed the Secretary, Legislative Council, by his letter of 22 April 1978 to make the necessary arrangements for the making of the oath and subscription thereof before the Governor and having further on 27 April 1978 subscribed in writing to the oath as prescribed in Schedule III of the Constitution and sent the same in duplicate to the Governor offering to follow it up, if necessary by taking the oath in person, has performed all his obligations under Article 188 of the Constitution and is entitled to take his

244

Summary of Cases

seat in the Legislative Council as a duly elected Member from the Madras District Graduates Constituency without any further obligations on his part. ISSUE

Whether acceptance by the Governor of a signed oath in the form prescribed in compliance with Article 188 would satisfy the requirements contained in Article 188? DECISION

The petitioner is deemed to have substantially complied with the provisions in Article 188 by sending the oath in the form prescribed in compliance with Article 188 to the Governor. The petitioner had not received any requisition from the Governor calling upon him to appear in person and read out the oath before him. It would amount to an admission and conclusive proof of making and subscribing the oath in the form prescribed in Schedule III to the Constitution. Hence, he is entitled to sign the roll of Members of the Council and take the seat in the Tamil Nadu Legislative Council as a duly elected Member without any further obligation on his part. SUMMARY OF THE JUDGMENT The petitioner contended that when in exercise of the power under Article 188, the Governor appoints some authority as the person before whom any Member may make

and subscribe the oath or affirmation, the Governor and the person appointed by him have concurrent jurisdiction or obligation and having regard to the penal provision contained in Article 193 and the right of the elected Member to enter on his duties as a legislator as early as possible, the option to take the obligation before any of them is vested in the Member and not in the Governor or his nominee. Per contra, the Advocate General contended that the power is not to be exercised concurrently and the power retained by the Governor is dormant or latent to be exercised at his option either by way of the resumption of the power delegated in its entirety or in a particular instance. Regarding this issue, the court held that the jurisdiction is concurrent and

the option is vested in the Member of the Council. The reasoning was thus:

In the context of Article 188 and the language used in Articles 60 and 159, the Constitution itself contemplates a concurrent jurisdiction being vested in the Governor and the person appointed by him in that behalf. Wherever the Constitution

required the making and subscribing of the oath or affirmation to be done only in the

presence of a particular specified authority, it specifically mentions so as in the case of President of India and the Governor of a State under Articles 60 and 159 respectively. In all other cases, for instance, in Articles 69, 99, 124(6), 148(2) and 219, more than

one authority were contemplated as persons before any of whom a member may make and sub scribe his oath or afhirmation ... The general accepted theory is that an

G. Vasantha Pai v. C. K. Ramaswamy and Anr

245

authority which delegates its powers does not divest itself of them and can resume them in full or in part.

The court also examined the meaning of the expression ‘in that behalf’ appearing in Article 188 and held: it only means that he is appointed as the person before whom the making and subscribing of the oath could be done. It refers to the function of witnessing the making and subscribing for the purposes of Article 188 and not with reference to any particular individual’s making and subscribing the oath. The use of the words ‘in that behalf’ in no way restricts the power of the Governor to appoint one or more persons either by name or by designation for a particular period or for an indefinite period, provided it specifies that they are appointed in exercise of the powers under Article 188 and for the purpose of any and every Member of the Assembly or the Council, as the case may be, to make and subscribe their oath or affirmation.

The Advocate General has argued that under Article 188, the Governor is required to act on the aid and advice of the Council of Ministers. By rejecting the argument the court observed that there can be occasions when there is no Council of Ministers to aid and advise as in the case of the first Constitution of the State Assembly or when the State Ministry is dismissed or dissolved and the President's Rule imposed.

Regarding the Secretary's failure to arrange for the petitioner’s oath before the

Governor, the court held thus:

The Legislature is entitled to function untrammeled by any interference by any person or authority. Neither the Secretary nor even the Chairman protem can interfere or obstruct or even delay a Member taking the oath as required by the Constitution and

discharging his functions as a Legislator.

On the issue of the validity of the signed oath sent by the petitioner to the Governor, the court observed that the words ‘make’ and ‘subscribe’ in the article indicate that the declaration of the oath shall be reduced to writing and signed in token of acceptance of the same. The word ‘subscribe’ itself means to write under something or to give consent to something written by signing one’s name underneath. Article 188 requires the declaration to be in the form set out in Schedule III and should be read before the Governor or some person appointed by him in that behalf. It is enough if the declaration is read by the Member and it was not necessary to administer the oath by

any authority to the Member. The Constitution does not debar even a dumb person from becoming a Member of Parliament or State Assembly. Unlike Articles 75(4) and 164 (3), which require the oath to be administered by the President or the Governor,

as the case may be, to a minister, such requirement of administration of oath is not necessary where a person makes or subscribes to the oath or affirmation under

Article 188. If the Member had consciously made and subscribed fully, understanding the implications thereof, and there was no dispute about the factum of his signing the declaration in the form prescribed, in the opinion of the court, it is just and reasonable to hold that the Member had substantially complied with the provisions of Article 188. The court further held that in the case of Article 188, a substantial

246

Summary of Cases

compliance should be considered as sufficient to enable a Member to take the seat in

the Assembly or the Council as the case may be.

The court by allowing the writ petition held thus: The petitioner shall be deemed to have substantially complied with the provisions in

Article 188 and he is entitled to sign the roll of Members of the Council and take the seat in the Tamil Nadu Legislative Council as a duly elected Member from the Madras District Graduates’ Constituency without any further obligation on his part.

Case 26

G. Viswanathan v. The Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras AIR 1996 SC 1060: 1996 (1) SCALE 531: (1996) 2 SCC 353: [1996] 1 SCR 895 A. M. Anant, C. J. I. AND K. S. PARIPOORNAN, J.

Date of Judgment: 24.01.1996

F ACTS-IN-BRIEF

The appellants are two Members of the Tamil Nadu Legislative Assembly elected in the general elections held in 1991. Both of them were candidates set up by the All India Anna Dravida Munnetra Khazhagam (AIADMK). They were expelled from the AIADMK by order of the Speaker, which declared them as ‘unattached’ Members. The Secretary of the Legislature Assembly issued a notice under Section 7 of the Tamil Nadu Assembly (Disqualification on Ground of Defections) Rules, 1986, and called for the comments. The writ petitions filed by the appellants were rejected on the ground that they have joined some other political party. Thereafter, the appellants filed

representation before the Speaker stating that the provisions of the Tenth Schedule will not apply to ‘unattached Members’. Since they have joined another political party, viz. MDMK, the Speaker ruled that it would amount to voluntarily giving up his membership of his original political party and will be subject to disqualification. The appellants being incurred disqualification filed writ petitions against the order of the Speaker. They also filed a CMP to grant interim injunction to restrain the order of the Speaker. Since the writ petition was dismissed by the high court a special leave petition was filed to the Supreme Court.

248

Summary of Cases

ISSUES

1. Does a Member of a House, belonging to a political party, become disqualified as having voluntarily given up his membership of such political party on his joining

another political party after his expulsion from the former? 2. The further question is when does a person ‘voluntarily give up’ his membership

of such political party, as provided in paragraph 2(1)(a)?

DECISION 1. The explanation to paragraph 2(1) of the Tenth Schedule provides that an elected

Member ofa House shall be deemed to belong to the political party, if any, by

which he was set up as a candidate for election as such Member, such person so set

up as a candidate and elected as a Even if such a Member is thrown of the Tenth Schedule he will not had set him up as a candidate for

Member, shall continue to belong to that party. out or expelled from the party, for the purposes cease to be a Member of the political party that the election. He will continue to belong to that

political party even if he is treated as ‘unattached’. 2. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which

had set him up as a candidate for election as such Member.

SUMMARY OF THE JUDGMENT Whether a Member of a House, belonging to a political party, become disqualified

as having voluntarily given up his membership of such political party on his joining another political party after his expulsion from the former, by reiterating Kihota

Hollohan v. Zachilhu, the court concluded that since the explanation to paragraph 2(1) of the Tenth Schedule provides that an elected Member ofa House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such Member, such person so set up as a candidate and elected as a Member shall

continue to belong to that party. Even if such a Member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a Member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as ‘unattached’.

On the second point; when does a person ‘voluntarily give up’ his membership of such political party, as provided in paragraph 2(1)(a)? The court stated that the act of

voluntarily giving up the implied. When a person, set him up as a candidate amount to his voluntarily

membership of the political party may be either express or who has been thrown out or expelled from the party which and got elected, joins another (new) party, it will certainly giving up the membership of the political party which had

set him up as a candidate for election as such Member. As per the court, labelling

CO

SE

A

G. Viswanathan v. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, Madras

249

of a Member as ‘unattached’ finds no place nor has any recognition in the Tenth Schedule. The classification of the Members in the Tenth Schedule proceeds only on

the manner of their entry into the House: (i) one who has been elected on his being

set up by a political party as a candidate for election as such Member; (ii) one who has been elected as a Member otherwise than as a candidate set up by any political party—usually referred to as an ‘independent’ candidate in an election; and (iii) one

who has been nominated. Conclusively, the court was of the opinion that the deeming fiction must be given full effect for otherwise the expelled Member would escape the

rigour of the law which was intended to curb the evil of defections which had polluted

our democratic polity. Counsel, Shri Shanti Bhushan laid stress on paragraph 1(b) of the Tenth Schedule and contended that the Legislative Party, in relation to a Member of a House belonging to any political party, means the group consisting of all the Members of that House for the time being belonging to that political party, and so understood, the appellants who were thrown out or expelled from the party, did not belong to that political party nor will they be bound by any whip given by that party. So, they are unattached Members, who did not belong to any political party, and in such a situation the deeming provision in sub-paragraph (a) of the explanation to paragraph 2(1) will not apply. The court responded: Paragraph 1(b) cannot be read in isolation. It should be read along with paragraphs 2,

3 and 4. Paragraph 1(b) in referring to the Legislative Party in relation to a member of a House belonging to any political party, refers to the provisions of paragraphs 2,

3 and 4, as the case may be, to mean the group consisting of all members of that House for the time being belonging to that political party in accordance with the

said provisions, namely, paragraphs 2, 3 and 4, as the case may be. Paragraph 2(1)

read with the explanation clearly points out that an elected member shall continue to belong to that political parcy by which he was set up as a candidate for election as such member. This is so notwithstanding that he was thrown out or expelled from that party. That is a matter between the member and his party and has nothing to do so far as deeming clause in the Tenth Schedule is concerned. The action ofa political party qua its member has no significance and cannot impinge on the fiction of law under the Tenth Schedule. We reject the plea solely based on Clause 1(b) of the Tenth

Schedule.

If he of his own volition joins another political party, as the appellants did in the present case, he must be taken to have acquired the membership of another political party by abandoning the political party to which he belonged or must be deemed to have belonged under the explanation to paragraph 2(1) of the Tenth Schedule. Of course, the courts would insist on evidence which is positive, reliable and unequivocal For the aforesaid reasons, the judgment of the high court declining to interfere with the order of the disqualification passed by the Speaker, Tamil Nadu Legislative Assembly, did not call for any interference in the appeals.

Case 27

Gunupati Keshavram Reddy v. Nafisul Hasan and the State of UP MANU/SC/0100/1952: AIR 1954 SC 636 PATANJALI SASTRI, C. J., MAHAJAN, B. K. MUKHERJEA,

S. R. Das AND CHANDRA SEKHARA AIYAR, J. J. Date of Judgment: 18.03.1952

FACTS-IN-BRIEF In this case, Shri Homi Mistry was arrested at his Bombay residence under a warrant issued by the Speaker of the UP Assembly for contempt of the House and was flown

to Lucknow and kept in a hotel in the Speaker's custody. On his applying for a writ of habeas corpus, the Supreme Court directed his release as he had not been produced before a magistrate within twenty-four hours of his arrest as provided in Article 22(2). The petitioners prayed for a writ of habeas corpus since one Shri Homi Dinshaw Mistry was taken into custody by the Speaker of the UP Assembly for breach of the privilege of the UP Assembly, and he was not produced before the magistrate within

twenty-four hours. The validity of Shri Mistry’s detention was challenged on the

ground that it had contravened Article 22(2).

ISSUE

Whether the alleged detention is legal? DECISION A detention which is violation of Article 22(2) is not permissible.

Gunupati Keshavram Reddy v. Nafisul Hasan and the State of UP

25|

SUMMARY OF THE JUDGMENT The Attorney General confirmed that the allegation is well founded. The court held that this was a clear violation of Article 22(2) of the Constitution, which prohibited such detention beyond twenty-four hours. The petition was allowed and Shri Mistry

was ordered to be released.

Case 28

Har Sharan Varma v. Union of India and Ors AIR 1987 All 294: MANU/UP/0192/1987 S. C. MATHUR AND G.B. SINGH, J. J.

Date of Judgment: 23.05.1986

FACTS-IN-BRIEF

The petitioner Shri Har Sharan Varma challenged the induction of Shri Mufti Mohammad Sayeed into the Central Cabinet. The ground of challenge was that

he is not a Member of either House of Parliament and is, therefore, disqualified for becoming a Member of the Council of Ministers. ISSUES 1. Whether a non-member of Parliament can become a Member of the Council of Ministers in the Central Cabinet? 2. Whether a non-member of Parliament can sit in Parliament without taking oath under Article 99 as a Member of the Council of Ministers in the Central Cabinet?

DECISION A non-member of Parliament can become a Member of the Council of Ministers, but he is required to become a Member within the next six months, failing which he

ceases to be a minister. The penalty is not incurred when a person sits in the House

as a Member of the Council of Ministers in order to discharge the constitutional obligation cast under Article 75(3).

—_—=———————————_—

er

Ee

Ae

Har Sharan Varma v. Union of India and Ors

253

SUMMARY OF THE JUDGMENT In this case, the petitioner challenged the induction of Shri Mufti Mohammad Sayeed

into Central Cabinet on the ground that he is not a Member of either House of Parliament. Various articles of the Constitution were invoked and the court interpreted

all the contended articles and made its decision.

While answering the contention, the court first made its observation on Article 74 and 75 and it observed thus:

Article 74(1) does not prescribe any qualification for becoming a Member of the

Council of Ministers. It does not prescribe that a Member of the Council of Ministers must be a Member of one of the Houses of Parliament. Thus, there is no bar to a

person who is not a Member of one of the Houses of Parliament becoming a Member of the Council of Ministers.

As far as Article 75(5) is concerned, a minister who fails to acquire membership of either House of Parliament for six months from the date of his induction into the Council

of Ministers ceases to be a minister on the expiry of the said period of six months. But the disqualification comes only after the expiry of the period of six months. After this the court moved to Articles 84 and 99 which were contended by the petitioner. The court held that these articles are relevant when Shri Sayeed will seek

election either to the Lok Sabha or the Rajya Sabha and when he will be elected to

either House of Parliament or nominated to the Rajya Sabha.

One of the contentions was that under Article 75(3) the Council of Ministers is

collectively responsible to the House of the People, but without subscribing to the oath, referred to in Article 99, he cannot have a seat in Parliament. But the court disagreed

with this contention and held that Shri Sayeed would be sitting in Parliament not as a Member of Parliament but as a Member of the Council of Ministers discharging

his constitutional obligation under Article 75(3). The term ‘before taking his seat’

occurring in Article 99 signifies ‘before taking his seat as a Member of the House’. The court also observed that the penalty under Article 104 is incurred when a

person who has not subscribed to the oath referred to in Article 99 sits or votes as a

Member of either House of Parliament. The penalty is not incurred when a person

sits in the House as a Member of the Council of Ministers in order to discharge the constitutional obligation cast under Article 75(3).

Case 29

Hardwari Lal v. Election Commission of India and Ors ILR (1977) 2 P&H 269 R. S. Naru, C. J., S. S. SANDHAWALIA, PREM CHAND JAIN, GURNAM SINGH AND Harpans LAL, J. J.

Date of Judgment: 08.04.1977

FACTS-IN-BRIEF

Shri Hardwari Lal, an elected Member of the House, published the derogatory

words and paragraphs in a booklet entitled ‘A Chief Minister Runs Amuck—Indian

Democracy in Danger’ and ‘Emergence of Rough and Corrupt Politics in India’, which lowered the dignity of the Speaker, Members of the Vidhan Sabha. On this the House

referred the matter to the Privileges Committee, which recommended his expulsion and the seat to be declared as vacant. On this the House unanimously adopted the

motion of expulsion and consequently expelled him, and he was declared to have ceased to be a Member of the House. As a result, the Election Commission of India was requested to fill the vacancy. Against this, Shri Hardwari Lal filed a writ petition under Article 226 in the Punjab and Haryana High Court.

ISSUES A majority framed the following issues: 1. Whether the State Legislature has the power to expel by majority one of its duly elected Member, who is otherwise fully qualified according to the provisions of the Constitution? 2. Whether all the privileges, powers and immunities of the House of Commons are to be deemed as written in pen and ink into the Constitution of India and thereafter to be construed as an integral part thereof?

Hardwari Lal v. Election Commission of India and Ors

255

3. Whether the admitted right of the House of Commons to expel is an integral and indivisible facet of its privilege to provide own Constitution? 4. Whether the admitted privilege and power of providing for Constitution enjoyed by the House of Commons in England to the State Legislature within India? 5. Whether the power of expulsion, which is so inherently alien

one of its Members for and regulate its regulating its own is equally available to the tenets of the

written Constitution of India, is to be available to its State Legislature in the very

nature of things?

DECISION

The State Legislature has no power to expel its Member from the House. SUMMARY OF THE JUDGMENT S.S. Sandhawalia, J., (For himself, Prem Chand Jain, Gurnam Singh, J. J.) Justice S, S. Sandhawalia forming a majority with Prem Chand Jain and Gurman Singh, J. J., was of the view that the Vidhan

Sabha did not possess the power of

expulsion. Chief Justice R. S. Narula and Harbans Lal, J., while giving their separate judgments, were of the view that legislatures possess power to expel their Members. Justice S. S. Sandhawalia, after analysing numerous cases of expulsion and discussing writings of various authorities of the British constitutional law, like Aston, May, etc. observed that the moment the House of Common arrives at a conclusion that a Member, in its collective opinion, is unfit to continue as such, it may forthwith expel him because it has the undoubted power of determining the identity of its membership, qualification and disqualifications. The court observed: The uncanalized power of expulsion in the House of Commons stems from its ancient and peculiar privileges of determining its own composition which in turn arises for ... because of the unwritten Constitution in England. No such power can descend to the State Legislature in India in view of the admitted position chat peculiar privilege of providing for and regulating its Constitution which undoubtedly vests in the British House of Common is by very nature of things unavailable to our legislature.

While giving the difference between the constitutional position of India and England,

Justice S. S. Sandhawalia held:

... that in the peculiar context of an unwritten Constitution in England, it is possible that Parliament, either in the full legislature capacity or in the exercise of its privilege by each House may override and claim preeminence over the right of representation. In India, these rights are constitutional rights of the people and they cannot and

should not be overridden by a single House ... In the presence of a written and detailed

256

Summary of Cases

Constitution in India, which does not anywhere mention the power of expulsion, a

State Legislature cannot by purported exercise of a privilege negate the prescribed and

constitutional right of representation and freedom of choice guaranteed to the people

ofa constituency. Expulsion by the house, therefore, invalidates and repudiates a choice by the

people of the constituency which they themselves cannot change for the duration

of the assembly. The Indian Constitution does not visualize that the electors of one constituency should be forced to be put to a second choice at the will or behest of the representatives of the majority of legislators of others constituencies.

Further, while considering the power of expulsion of the House of Commons as a part of privilege to regulate its own constitution, the court held that:

The power of the House of Commons to expel one of its member is an integral and indivisible part of its own peculiar privilege to provide for and regulate its own constitution. This privilege does not and indeed cannot descend to the State Legislature in India by virtue of Art. 194(3) of our constitution. The imposable punishments for the contempt of the House are known and well-settled as being admonition, reprimand, and suspension trom the service of the House for the session, and lastly the keystone in the context being the power to commit the contemnor to prison.

The majority held that expelling the petitioner is unconstitutional, illegal and inoperative.

R. S. Narula, C. J. (Dissenting Judgment) Chief Justice R. S. Narula (for Minority) framed the following issues:

1. Whether in the exercise of power under Article 226 of the Constitution, the high court can at all question the legality, validity, propriety or bonafides of the impugned decision of the House expelling the petitioner?

2. Whether all the privileges, power and immunities of the House of Commons descend on the Indian State Legislature by operation of Article 194(3) or is there

exception to the same, and if so, what are the exceptions?

3. Whether the House of Commons have, at the commencement of our Constitution,

the power or privilege to expel a Member for misconduct or breach of privilege or

for committing contempt of the House outside the House? 4, Whether the power of expulsion exercisable by the Commons only as a part of

its privilege to constitute itself or on any other ground independent of the said privilege, such as, misconduct and contempt which lowers the dignity of the House?

On the first issue, whether the high court can exercise its power under Article 226, it was observed

that the power conferred on the high court under 226(1) can, in

a proper case, be exercised even against the legislature. The Hon'ble Chief Justice observed: “The members of a legislature are the sole judges of the question whether their privileges have been violated and whether thereby any person has been guilty of

Hardwari Lal v. Election Commission of India and Ors

257

contempt of their authority and so they must necessarily adjudicate on the question of

their privileges.’ It was further observed that with respect to rights exercisable within

a House the jurisdiction of the House is complete. With respect to rights exercisable

outside the House, the jurisdiction of the House is complete in respect of some matters like punishments of its Members for contempt or for breach of privilege.’ The resolution to exclude a member of a legislature from the House (by suspension or expulsion) is a thing “done within the walls of the House” and cannot, therefore, be questioned in any court proceedings.’ On the basis of above observation it was held thus: (i) The State Legislature is an authority amenable to an appropriate writ, order or

direction under Article 226 of the Constitution in a suitable case;

(ii) The order that can issue to the State Legislature under Article 226 would ordinarily

be only declaratory of the correct legal position but not in the nature of mandamus as it is expected that the legislature would show the same respect to the orders and directions of the high court as the high court shows to the internal proceedings of the House. In appropriate cases, directions may also be given to the House to the restricted extent to which they are permissible under the law; (iii) A petition under Article 226 of the Constitution against a State Legislature is not liable to be dismissed at the threshold merely because it is against the House but will have to be looked into on the merits of the given case and then disposed of in accordance with law; (iv) The high court in exercise of its writ jurisdiction can and, if called upon, must

determine the question of the existence and extent of any privilege claimed by the House under the latter part of Clause (3) of Article 194, and denied or questioned

by any persons affected thereby. The high court can be a judge only of the existence

of the privilege or power claimed by the House qua the subsistence of such a power in the Commons in January 1950, but once such a privilege is found to

-exist and the punishment imposed within the permitted extent of the privilege, it is for the House to judge the occasion and the manner of its exercise.

(v) Subject to which

is stated in (iv) above, the motion

of privilege adopted

by

the Vidhan Sabha or a resolution passed by it imposing any of the recognised punishments on any one or more of its Members in the course of disciplinary proceedings for breach of privilege or for the contempt of the House or of any of its Members or the Speaker or any of the Committees of the House is a

proceeding within the impregnable fortress of the House,

and is, therefore, not

open to scrutiny by any court as the House alone is the judge of such matters. This

would not, however, apply to any proceeding against a non-member because that would not be a wholly internal matter of the House;

(vi) In the present case it is, therefore, open to this court to find out whether the Vidhan expel the petitioner, and if so whether the within the extent to which that privilege or

this court and in fact it is the duty of Sabha has the power or privilege to order of the petitioner's expulsion is power resides in the House; and

58

Summary of Cases

vii)If the petitioner has been expelled from the House for committing its contempt or the contempt of the Speaker or of the Leader of the Opposition or of any of its Members; and the House has the power to expel its Members for such contempt, this court cannot interfere with the impugned order of expulsion. \egarding the second issue, it was held that all the powers, privileges and immunities vith two exceptions: (i) Those which in the nature of things no Indian legislature can claim because of the

non-existence of the purpose for which such power or privilege could possibly be claimed; and ii) Those which are incompatible with some express provision of the Constitution or comes

into conflict even

impliedly with some

prohibition

contained

in

the Constitution or is not reconcilable with the machinery or scheme of the Constitution.

ne of the contentions of the petitioner was that power to expel any Member rests in he Commons as an incident of the privilege of the House of Commons to constitute self and this cannot and is not available to Indian legislature. R. S. Narula, C. J., on this ssue held that even if the power to constitute itself can be expressed by the Commons n any number of other ways including resorting to expulsion of its Members, it would nake no material difference as the existence of one ground on which expulsion can be

dered by the Commons cannot by itself exclude or abrogate the independent power

f the House to punish a Member by expelling him—a punishment which cannot be

nflicted on a non-member.

On issue number three, it was held that the Commons continued to exercise ts power and privilege of expulsion against its Members right up to the time of the

ommencement of the Constitution and even thereafter.

Lastly, ic was held that independent of the power and privilege of the House of commons to constitute itself, it also exercised the power to expel its Members by way f punishment for misconduct or for breach of privilege or for committing contempt f the House.

darbans Lal, J. (Concurring with Dissenting Judgment) ustice Harbans Lal held:

If the House of Common has the well established privilege to punish its members and others for their acts of contempt or breach of privilege and punishment can take the form of admonition, reprimand, suspension from the House and even committal to prison according to the nature and seriousness of the offence, it is

incomprehensible as to why the power of expulsion cannot be considered as one of

the modes of punishment. The mere fact that the exercise of this power of expulsion has the result that the seat of the member concerned gets vacated and the election has to be resorted to fill the same cannot convert this power, which is essentially and

Hardwari Lal v. Election Commission of India and Ors

259

in substance a penal power, into the power only linked with the Constitution or composition of the House.

While considering the contention of the petitioner that expulsion is a judicial power and cannot be exercised by the legislature it was held, ‘the House of Commons did have the power to punish the contemnors for breach of privilege and this power has descended on the State Legislature ... and this is nevertheless be a judicial power. If one kind of judicial power can be exercised by the legislature why not the other?’ So the learned Judge was of the view that the powers and privileges of the House of Commons which have devolved upon the State Legislature under Article 194(3) of the Constitution include the power of expulsion.

Case 30

Haridasan Palayil v. The Speaker, Kerala Legislative Assembly AIR 2003 Ker 328: 2003 (3) KLT 119: MANU/KE/0306/2003 JAWAHAR Lat Gupta, C, J. AND R. Basant, J.

Date of Judgment: 03.03.2003

FACTS-IN-BRIEF

Respondent no. 3 took oath in name of ‘Sree Narayana Guru’ at the time of being sworn in as a Member of the legislature, The petitioner complained that the third respondent, who was elected to the 1 1th Kerala Legislative Assembly, had not complied with the form set out in the constitutional provisions under Article 188 at the time of taking oath/affirmation since he had not taken oath either in the name of God or solemnly affirmed, but had taken oath in the name of ‘Sree Narayana Guru’. Despite that, he has been taking part in all the legislative activities including the election of the

first respondent as the Speaker of the Legislative Assembly. The Speaker also had sent the petitioner a representation that he had found no reason to interfere in the matter.

As per the petitioner, the Speaker has failed to uphold the constitutional responsibility of his office. Hence, the petitioner approached the court with the prayer that (i) the communication from the Speaker be annulled; (ii) the third respondent be restrained

from taking part in any legislative activity; and (iii) an amount of Rs 500 for each day of default from respondent no. 3 be recovered. ISSUES

1. Does the oath taken by the third respondent as a Member of the Legislative Assembly conform to the provisions of the Constitution?

2. Is the oath, as taken by the third respondent, immune from challenge by virtue of the provision contained in Article 212 of the Constitution?

Haridasan Palayil v. The Speaker, Kerala Legislative Assembly

26|

3. Is the respondent liable to pay a penalty for each day on which he had sat or voted

in the Legislative Assembly from 5 June 2001?

DECISION

The Constitution does not permit any deviation or variation from the prescribed form. The oath taken by the third respondent does not conform to the constitutional mandate. Thus, he was not entitled to sit and vote in the State Legislature. He is also liable, under Article 193 of the Constitution, to pay a penalty at the rate of Rs 500/for each day that he has already sat or voted.

SUMMARY OF THE JUDGMENT The petitioner contended that Article 188 of the Constitution makes it incumbent on a person to subscribe to the oath in conformity with the form given in Schedule III. In case he does not believe in God, the person can make an affirmation. However,

the form having been duly prescribed, no individual can change the form at his own will or pleasure. The person who has not taken the oath in confermity with the prescribed form is not entitled to claim that he has complied with Article 188. Thus,

the consequence as envisaged under the law should follow.

According to the respondent, Article 188 only means that the forms set out

in Schedule III or any form as near thereto shall be used for making the oath or

affirmation under it. It is enough if the form set out in Schedule III is substantially followed in taking oath. The Advocate General argued that the form as prescribed in Schedule III is not mandatory. A substantial compliance is sufficient. The oath has to be taken ‘according to the form’ and not ‘in the form’,

The Joint Secretary, Department of Parliamentary Affairs, in his separate counteraffidavit filed on behalf of the State of Kerala averred that no illegality or irregularity

has been committed by the third respondent. This is because the Member of the legislature is given an option to swear in the name of God which only means that

the person is giving a guarantee to the Assembly through God. Therefore, if any

person swears in the name of Sree Narayana Guru whom he worships as the most

valuable God, he cannot be faulted with for not strictly adhering to the form set out in Schedule HI of the Constitution. God is a concept. Nobody can thrust his idea of ‘God’ on another and prescribe the mode of belief in God. The court held that the prescribed form does not impinge upon the liberty of faith or worship. Equally, it does not place any embargo on freedom of conscience or religion. On the contrary, it ensures equality and uniformity. The form of the oath itself was deliberated upon at length in the Constituent Assembly. The court after having discussed in detail the considerable debate, which took place in the Constituent Assembly regarding the form of oath, held that the oath has to be taken according to the form given in Schedule III. If a particular thing is required to be done in a

particular way, it must be done in that way and no other. The Constitution lays down

262

Summary of Cases

the form of the oath. It gives a limited option. One can either subscribe to the oath, or make an affirmation. In case the person chooses to take the oath he has to swear in the name of ‘God’ and none else. The Constitution does not permit any deviation or variation. The form used in administering an oath is not a matter of discretion. The court observed thus: ‘For if any deviation were permitted, we may not know where

to stop. The respondent also contented that oath-taking is a part of the conduct of the business of the House, and is an internal affair of the House. Whatever transpires

after the constitution of the House is an internal matter over which Article 212(2)

interdicts the courts from interfering. Even if there has been an irregularity in the

matter of taking oath and assuming that the allegations of the petitioner are correct, the matter complained of is not a manifest irregularity, which calls for interference by the court exercising its discretionary jurisdiction under Article 226. Moreover, the Constitution does not provide that the seat of a Member ofa House of Legislature shall become vacant if he fails to comply with the requirements of Article 188. Article 190 specifies the circumstances in which the seat of a Member becomes

vacant. The failure to take oath or affirmation under Article 188 of the Constitution is not one of those circumstances. It is only open to the House to exclude a Member

who has not made an oath or affirmation under Article 188 and to declare his seat vacant under Article

190(4). The question of oath is a matter related to the

legislative bodies under the Constitution and the conduct of their affairs was not

amenable to judicial review. The Speaker and the legislators had accepted the oath as taken by him ‘without any objection/protest’. According to him, even if it be

assumed that he had not made oath or afhrmation in compliance with Article 188, the court cannot restrain him from taking his seat and discharging the duties as a

member of the Legislative Assembly. As against these arguments, the court framed and examined

the following

questions: Are the courts debarred from examining the validity of the oath? Is the

immunity to the proceedings of the legislature absolute? Or does the immunity start only after the constitutional provision has been complied with? Is the oath as taken by the third respondent immune from challenge by virtue of the provision contained in

Article 212 of the Constitution? And the court answered thus: “The courts have a commitment to the Constitution. Whenever there is violation of the Constitution, the courts cannot be silent spectators.

They are under a duty to intervene’. The court after referring to State of Kerala v. R. Sudarsana Babu (1983 KLT 339] observed that constitutional immunity begins only after the constitutional requirement of taking oath in the prescribed form is shown to have been fulfilled. Only thereafter, the Member is entitled to the freedom of speech and vote. Thus, the courts can intervene whenever and wherever there is a violation

of the Constitution. The immunity under Article 212 does not mean that the court cannot examine the issue of the validity of the oath. A person is lawfully sworn in, only if the person before whom the oath is taken has the power to administer it and if

Haridasan Palayil v. The Speaker, Kerala Legislative Assembly

263

the oath conforms to the prescribed form. Constitutional immunity commences only

after compliance with the Constitution and not by violation. The court disposed the matter by stating thus: The 3rd respondent had not taken the ‘Oath’ in accordance with the provisions of the Constitution. Thus, he was not entitled to sit and vote in the State Legislature and cannot do so till he is duly sworn in. He is also liable to pay a penalty at the rate of Rupees five hundred for each day that he has already sat or voted. The penalty shall

also be leviable in future if he sits or votes in the Legislature till he takes the ‘Oath’ in the prescribed form.

Case 31

Hem Chandra Sen Gupta v. The Speaker, Legislative Assembly of West Bengal AIR 1956 Cal 378

Date of Judgment: 17.04.1956

FACTS-IN-BRIEF A high-powered commission, namely States Reorganisation Commission (SRC), was

appointed by the Government of India to go into the question of reorganisation of the boundaries of the different States. The Commission in its reports had, inter alia, recommended that the boundaries between the two States of West Bengal and Bihar should be redrawn by incorporating in the State of West Bengal, a small portion of the territories then belonging to Bihar. On January 1956, the Chief Ministers of West Bengal and Bihar made a joint declaration from New Delhi, popularly known

as the ‘Roy Sinha Declaration’, proposing a merger. Later, the Secretary, West Bengal Legislative Assembly, issued a circular to all the Members of the Legislative Assembly informing them about the notice of Resolution seeking the approval of the House of the proposal for the union of West Bengal and Bihar given by Dr Bidhan Chandra

Roy, the Chief Minister of West Bengal. Opposing the proposed merger of Bihar with the State of West Bengal, Shri Hem Chandra Sen Gupta and others filed a petition in the Calcutta High Court. The petition

sought the indulgence of the high court for the issue of various writs, including the

writs of mandamus, pursuing the notice resolution approving injunct the Speaker India from bringing

certiorari and quo warranto, restraining the Chief Minister from which he has caused to be given in the Assembly, of moving a the proposal for the union of the States of West Bengal and Bihar; from presiding over the legislature; restrain the Government of or initiating any bill or legislation in Parliament for the purposes

of uniting the two States; and in general to paralyse the administration of the State by

stopping the State Government from withdrawing sums from the Consolidated Fund of the State Government, etc.

Hem Chandra Sen Gupta v. The Speaker, Legislative Assembly of West Bengal

265

ISSUES

Whether a court of law has the power to issue a writ against a legislative body preventing it from passing legislation? DECISION

While dismissing the petition, the court held that it cannot interfere in such matters since absolute freedom has been given to the legislatures to perform their functions. It was also observed that the Constitution lays down the respective jurisdictions of the legislatures and the courts and it is the business of the legislature to make laws

and of the courts to administer them. The powers, privileges and immunities of the State Legislatures and their Members have been laid down in the Constitution. Under Article 194, absolute freedom of speech and discussion has been given to the Members of the legislature, and under Articles 208, 212, subject to the provisions of the Constitution, they can regulate their own procedure. In such matters and within their allotted spheres, they are supreme and cannot be called into account by the courts of the land.

SUMMARY OF THE JUDGMENT The learned Advocate General characterised the proposed resolution as merely gas and vapour. He has also pointed out that the proposed resolution is even more vaporous than is commonly thought. Under R. 92, West Bengal Assembly Procedure Rules, a Member who wishes to move a resolution shall give twenty-one days’ notice of his intention to do so. Under R. 95, any Member may move a resolution relating to a

matter of general public interest. Under R. 94, every resolution shall be in the form

of a declaration of opinion by the Assembly. But the important rule is R. 20(1) which

states that on the termination of a session, all pending notices shall lapse and a fresh notice must be given for the next session, except in the case of a question which has not been answered or bills, which for want of time, could not be introduced.

It was argued on behalf of the petitioner that the resolution proposed by the Chief Minister did not comply with the provisions of Article 3 of the Constitution and, therefore, the proposed resolution was violative of the procedure laid down in Article 3 of the Constitution. Shri Hazra argues that not only is the proposed resolution violative of the procedure laid down in Article 3, but it also introduces the concept of a partial union which has no existence in the eye of law. The court answered that, prima facie, this main proposition seems to be sound, namely that under Article 3 there can be a complete union of two States, but here cannot be a halfway House. In other words, in the Constitution as it stands at present, there does not appear to be any provision for two States to unite in some matters and not unite in respect

of some other. The court referred to various judgments and took a considered view

after hearing the arguments put forth by both sides. It said there was inconsistency

266

Summary of Cases

in the contentions raised before the court on behalf of the petitioner, and that the interference of the court was uncalled for. The next contention related to Article 208. It was argued that under the Rules of Procedure framed by the Assembly under Article 208, a Member is at liberty to bring forward any resolution, provided the rules are observed. It is for the Speaker of the House to allow or disallow such a resolution to be raised or discussed in the House. The courts cannot at this stage seek to regulate the procedure of the House and arrogate to itself the powers of the Speaker. If, however, a law is passed or a resolution adopted or a motion carried, which is not in accordance with the Constitution, such a law, resolution or motion can be declared invalid by the court. The Constitution lays down the respective jurisdictions of the legislatures and the courts. It is the business

of the legislature to make laws and of the courts to administer them. The powers, privileges and immunities of the State Legislatures and their Members have been laid down in the Constitution. Within the legislature, the Members have absolute freedom

of speech and discussion (Article 194). Subject to the provisions of the Constitution,

they can regulate their own procedure (Articles 208, 212). In such matters and within

their allotted spheres, they are supreme and cannot be called into account by the courts of the land. The courts are therefore not interested in the formative stages of any law. Even where a law has been promulgated, it is not the duty of the courts to act in a supervisory character and rectify the defects suo motu. The court cannot at

this stage be called upon. The High Court of Calcutta in its judgment delivered on 17 April 1956, inter alia, made the following observation on the aspect of court’s power vis-a-vis the legislative process:

If the impugned resolution was meant to be an approval within the meaning of

Art. 3, this would be a point of substance. The learned Advocate General appearing

for the State of West Bengal and its Chief Minister upon instructions says that it is not, and cannot be an approval under Art. 3. He admits that the views of the local legislature under Art. 3 cannot be given before the President asks for it. At the present moment there is no bill before Parliament seeking the Union of the

States of West Bengal and Bihar; not even a Bill intended or proposed to be moved, whereon the recommendation of the President has been sought for. The resolution has been sought to be moved to convey to the centre that an Union of States if proposed is likely to be approved by the respective legislatures. This is intended to be an inducement for the members of Parliament and/or the Government of India to moot such a Bill.

If such a bill is mooted and lodged with the President for his recommendation, it will have to be sent down again to both the State Legislatures for expressing their perspective views. It is true that the word “proposal” has been used in the impugned resolution, but it is not the proposal as contemplated in Art.3, because such a proposal must be contained in a Bill intended to be introduced in Parliament, and at the moment there is not such Bill in existence.

Case 32

In Re: Gujarat Assembly Election Matter AIR 2003 SC 87: (2002) 8SCC 237 B. N. Kirpat, C. J., V. N. KHaArE, ArIT PASAYAL, ASHOK Buan, K. G. BALAKRISHNAN, J. J.

Date of Judgment: 28.10.2002

FACTS-IN-BRIEF The term for the Legislative Assembly of the State of Gujarat (constituted in 1988)

was to expire on 18 March 2003. On 19 July 2002, the Governor of Gujarat dissolved the Legislative Assembly on the advice of the Chief Minister. Immediately after

the dissolution of the Assembly, the Election Commission of India took steps for holding fresh elections for constituting the new Legislative Assembly. However, the

Election Commission by its order dated 16 August 2002, while acknowledging that Article 174(1) is mandatory and applicable to an Assembly which is dissolved and further that the elections for constituting a new Legislative Assembly must be held within six months of the last session of the dissolved Assembly, was of the view that it was not in a position to a conduct elections before 3 October 2002, which was the last date of expiry of six months from last sitting of the dissolved Legislative Assembly. In this context, the President of India, in exercise of powers conferred upon him by virtue of Clause (1) of Article 143 of the Constitution of India, referred three questions for the opinion of the Supreme Court by order dated 19 August 2002. ISSUES

1. Is Article 174 subject to the decision of the Election Commission of India under Article 324 as to the schedule of elections of the Assembly?

2. Can the Election Commission of India frame a schedule for the elections to an Assembly on the premise that any infraction of the mandate of Article 174 would be remedied by a resort to Article 356 by the President?

268

Summary of Cases

3. Is the Election Commission of India under a duty to carry out the mandate of Article 174 of the Constitution by drawing upon all the requisite resources of the

Union and the State to ensure free and fair elections?

DECISION

1. The act of summoning, sitting, adjourning, proroguing or dissolving of the legislature is necessarily referable to an Assembly in praesenti, i.e. an existing, functional legislature and has nothing to do with the Legislative Assembly which is not in existence. It is well understood that a dissolved House is incapable of being summoned or prorogued and in this view of the matter also Article 174(1)

has no application to a dissolved Legislative Assembly, as nothing survives after dissolution. 2. The interpretation of Article174(1) held that it does not provide for any period of limitation for holding elections within six months from the date of last sitting of the session of the dissolved Assembly. In that view of the matter, the question of applicability of Article 356 on the infraction of the provisions of Article 174 loses much of its substance and, therefore, application of Article 356 is not required to be gone into. . 3. Under Article 324, it is the duty and responsibility of the Election Commission to hold free and fair elections at the earliest. No efforts should be spared by the Election Commission to hold timely elections. Ordinarily, law and order or public disorder should not be a reason for postponing the elections and it would be the duty and responsibility of all concerned to render all assistance, cooperation and aid to the Election Commission for holding free and fair elections.

SUMMARY OF THE JUDGMENT On the first issue, in an effort that the aforesaid question be answered in the negative, it was urged on behalf of the Union of India, one of the national political parties and one of the States that: 1. The provision in Article 174(1) of the Constitution, that six months shall not intervene between the last sitting of one session and the date appointed for its first meeting of the next session, is mandatory in nature and it applies when the Governor either prorogues either of the Houses or dissolves the Legislative Assembly;

2. Article 174(2) empowers the Governor to prorogue or dissolve the Legislative Assembly and Article 174(1) does not make any exception in respect of the interregnum irrespective of whether the Governor has prorogued the House or dissolved the Legislative Assembly under Article 174(2);

3. On the correct interpretation of Article 174, the mandate of Article174(1) is applicable to the dissolved Assembly also. Such an interpretation would be in the —_

-

—

2

8

oe

In Re: Gujarat Assembly Election Matter

269

defence of a democracy and, therefore, as and when an Assembly is prematurely dissolved, the Election Commission has to fix its calendar for holding fresh election within the time mandated under Article 174(1);

4. Alternatively, it was argued that in a situation where the mandate

under

Article 174(1) cannot be complied with, it does not mean that the mandate is

directory in 5. The holding necessary in Money Bills

nature; and of election immediately after dissolution of the Assembly is also view of the sanction which is required to be taken with regard to by the Legislative Assembly.

The contentions advanced on behalf of the other national political parties, political parties as well as other States is that Article 174(1) is neither applicable to the dissolved Assembly, nor does it provide any period of limitation of six months for holding fresh elections in the event of a premature dissolution of the Legislative Assembly. According to learned counsel appearing for these parties, there is no provision either in the Constitution or in the Representation of the People Act which provides an outer limit for holding an election for constituting the new Legislative Assembly or the new House of the People, as the case may be, in the event of their premature dissolution.

On the argument of learned counsel for the parties, the first question that arises

for consideration is whether Article 174(1) is applicable to a dissolved Assembly? Article 174 and Dissolved Assembly

A plain reading of Article 174 shows it stipulates that six months shall not intervene between the last sitting in one session and the date appointed for its first sitting in the next session. It does not provide for any period of limitation for holding fresh elections in the event a Legislative Assembly is prematurely dissolved.

It is true that after the commencement of the Constitution, the practice has been

that whenever either Parliament or Legislative Assembly were prematurely dissolved,

the election for constituting fresh Assembly or Parliament, as the case may be, were held within six months from the date of the last sitting of the dissolved Parliament or

Assembly. It appears that the Election Commission’s interpretation of Article 174 that fresh election for constituting an Assembly is required to be held within six months

from the date of the last sitting of the last session was very much influenced by the prevailing practice followed by the Election Commission since the enforcement of the Constitution.

ArTICLE 174 AND TEXTUAL EXAMINATION

Article 174 shows that the expression, ‘date appointed for its first sitting in the next session’, cannot possibly refer to either an event after the dissolution of the House or an event of a new Legislative Assembly meeting for the first time after getting freshly

270

Summary of Cases

elected. When there is a session of the new Legislative Assembly after elections, the new Assembly will sit in its first session and not in the next session. The expression after each general election has been employed in other parts of the Constitution and one such provision is Article 176. The absence of such phraseology after each general election in Article 174 is a clear indication that the said article does not apply to a dissolved Assembly or to a freshly elected one. Further, Article 174(1) uses expressions,

i.e. its last sitting in one session and the first sitting in the next session. None of these expressions suggest that the sitting and the session would include an altogether different Assembly, i.e. a previous Assembly which has been dissolved and its successor

Assembly that has come into being after elections. The act of summoning, sitting, adjourning,

proroguing or dissolving of the

legislature is necessarily referable to an Assembly in praesenti, i.e. an existing, functional legislature and has nothing to do with the Legislative Assembly which is not in existence. It is well understood that a dissolved House is incapable of being

summoned

or prorogued and in this view of the matter also Article 174(1) has no

application to a dissolved Legislative Assembly, as nothing survives after dissolution.

Article 174: A Conceptual Note Article 174 deals with a live legislature. The purpose and object of the said provision

is to ensure that an existing legislature meets at least every six months, as it is only an

existing legislature that can be prorogued or dissolved. Thus, Article 174, which is a complete code in itself, deals only with a live legislature. Article 174(1) shows that it does not provide that its stipulation is applicable to a dissolved legislature as well. Further, Article 174 does not specify that interregnum

of six-months’ period stipulated between the two sessions would also apply to a new legislature vis-a-vis an outgoing legislature. If such be the case, then there was no need

to insert the proviso to Article 172(1) and insertion of the said proviso is rendered

meaningless and superfluous.

Further, if Article 174 is held to be applicable to a dissolved House as well, it

would mean that Article 174(2) is controlled by Article 174(1) inasmuch as the power

has to be exercised under Article 174(2) in conformity with Article 174(1). Moreover, if the House is dissolved in the fifth month of the last session, the election will have

to be held within one month so as to comply with the requirement of Article 174(1)

which would not have been the intention of the framers of the Constitution.

Distinction between frequency of sessions and periodicity of the elections A perusal of Articles 172 and 174 would show that there is a distinction between the frequency of meetings of an existing Assembly and periodicity of elections in respect of a dissolved Assembly which are governed by the aforesaid provisions. As far as frequency of meetings of an Assembly is concerned, the six-month rule

is mandatory, while as far as periodicity of the election is concerned, there is no sixmonth rule either expressly or impliedly in Article 174. Therefore, it cannot be held

that Article 174 is applicable to a dissolved House and also provides for a period of

In Re: Gujarat Assembly Election Matter

275

limitation within which the Election Commission is required to hold fresh election for constituting the new Legislative Assembly. Whether, under the British parliamentary practice, a proclamation which on the one hand dissolves an existing Parliament, and on the other fixes a date of next session of new Parliament is embodied in Article 174 of the Constitution? It was also urged on behalf of the Union of India that the Indian Constitution is enacted on the pattern of the Westminster system of parliamentary democracy and,

therefore, the election has to be held within the stipulated time following the British conventions as reflected in Article 174(1) of the Constitution. The court did not agree to this proposition, as it did were inappropriate in the Indian context for holding elections for constituting either House of the People or the Legislative Assembly. Under the Indian Constitution, power has been entrusted to the Election Commission under Article 324 to conduct, supervise, control and direct, and, therefore, the British

convention cannot be pressed into service. In our democratic system, the Election Commission is the only authority to conduct and fix dates for fresh elections for

constituting a new House of the People or the Legislative Assembly, as the case may be. Yet, another reason why the British convention for fixing a date for a newly-constituted Parliament cannot be applied in India is that under the British parliamentary system

there is a continuity of Parliament, whereas in India once Parliament gets dissolved, all business, which is to be transacted, comes to an end and the House of the People cannot be revived.

Whether the expression ‘the House’ is a permanent body and is different than the House of People or the Legislative Assembly under Articles 85 and 174 of the Constitution?

It was then urged on behalf of the Union that under Article 174 what is dissolved is

an Assembly, while what is prorogued is a House. Even when an Assembly is dissolved, the House continues to be in existence. The Speaker continues, under Article 94 in the

case of the House of the People or under Article 179 in the case of the State Legislative Assembly, till the new House of the People or the Assembly is constituted. On that premise, it was further urged that the fresh elections for constituting a new Legislative Assembly has to be held within six months from the last session of the dissolved Assembly.

As such the court found no substance in the other argument stated above. It is manifest that there is no distinction between the ‘House’ and ‘Legislative Assembly’. Wherever the Constitution makers wanted to make similar provisions for the Legislative Council as well as the Legislative Assembly, both together have been referred to as Houses and wherever the Constitution makers wanted to make a provision exclusively

for the Legislative Assembly, it has been referred to as Legislative Assembly. For the aforesaid reasons, our conclusion is that the expres:ions “The House’ or ‘either House’

in Clause (2) of Article 174 of the Constitution and Legislative Assembly

are synonymous and are interchangeable expressions. The use of the expression ‘the

House’ denotes the skill of a draftsman using appropriate phraseology in the text of

272

Summary of Cases

the Constitution of India. Further, the employment of expressions ‘the House’ or ‘either House’ does not refer to different bodies other than the Legislative Assembly or the Legislative Council, as the case may be, and has no further significance. Second

Issue

Is there any period of limitation provided under the Constitution of India or Representation of the People Act for holding fresh elections for constituting a new Legislative Assembly in the event of premature dissolution of a Legislative Assembly? In the context, provisions of the Constitution of India have been looked into. The court did not find any provision expressly providing for any period of limitation for constituting a fresh Legislative Assembly on the premature dissolution of the previous

Legislative Assembly. The interpretation of Article174(1) by the court, held that it does not provide for any period of limitation for holding elections within six months

from the date of the last sitting of the session of the dissolved Assembly. Section 15 of the Representation of the People Act, 1951, provides that a general election is required to be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution. Sub-

section

(2) thereof provides

that for constituting a new

Legislative Assembly,

the

Governor shall, by notification on such date or dates, as may be recommended by

the Election Commission, call upon all Assembly constituencies in the State to elect Members in accordance with the provisions of the act, rules and orders made thereunder.

The proviso to Sub-section

(2) of Section

15 of the act provides that

where an election is held otherwise than on the dissolution of the existing Legislative Assembly, no such notification shall be issued at any time earlier than six months prior

to the dates on which the duration of that Assembly would expire under the provision

of Clause(1) of Article 172.

Balakrishnan, J. (Concurring) 1. The provisions of Article

174 are mandatory

in character so far as the time

period between the two sessions is concerned in respect of live not dissolved Assemblies. Article 174 and Article 324 operate in Article 174 does not deal with elections which is the primary Election Commission under Article 324. Therefore, the question

Assemblies and different fields. function of the of one yielding

to the other does not arise. There is scope of harmonising both in a manner

indicated supra. 2. Article 174 is not relatable to a dissolved Assembly. Similar is the position under Article 85 vis-a-vis the House of the People. Merely because the time schedule fixed under Article 174 cannot be adhered to, that per se cannot be the ground for bringing into operation Article 356. 3. As Article 174 does not deal with election, the question of the Election Commissioner taking the aid, assistance or co-operation of the Centre or the State

Governments or to draw upon their resources to hold the election does not arise.

In Re: Gujarat Assembly Election Matter

273

On the contrary, for effective operation of Article 324 the Election Commission can do so to ensure holding of a free and fair election. The question whether a free and fair election is possible to be held or not, has to be objectively assessed by the Election Commission by taking into consideration all relevant aspects. Efforts should be to hold the election and not to defer the holding of the election.

Case 33

In Re: K. Anandan Nambiar AIR 1952 Mad 117: MANU/TN/0110/1952 MACK AND SOMASUNDARAM, J. J. Date of Judgment: 11.09.1951

FACTS-IN-BRIEF

Shri K. Anandan Nambiar was a Member of the Madras Legislative Assembly. He was arrested and detained under the Maintenance of Public Order Act. Thereafter he filed two habeas corpus petitions under Section 561A of CrPC, one after the other, and both were dismissed by the High Court of Madras. He then filed a writ petition under Article 226 of the Constitution in the High Court of Madras, which discussed the following issues. JSSUES

1. Does a Member ofa legislature, detained under a Preventive Detention Law, have any right to participate in the proceedings of the House? 2. Does a Member enjoy a right to correspond with the Presiding Officer of the House during his detention? DECISION

A Member of legislature detained under Preventive Detention Law has no right to participate in the proceedings of the House. There cannot be any difference in treatment as between a Member of a Legislative Assembly detenu and any ordinary

detenu in the application of Preventive Detention rules. During the period of the detention, a detenu who continues to be a Member of the Legislative Assembly has a

right to correspond with the House.

In Re: K Anandan

Nambiar

275

SUMMARY OF THE JUDGMENT While considering, firstly, loyalty by each and every citizen to the Constitution and to the Indian Union and, secondly, honesty, character and integrity in the component

organs of the Constitution as underlying pillars of the Constitution, the court observed that if a case should arise of a Member of a Legislative Assembly being preventively detained for black marketing operations prejudicial to essential services, involving as it does social and moral turpitude, both justice and law required that he should be restrained from further legislative activity and further misuse of his position till the electorate call upon him to account at the next election. Once the Member of a Legislative Assembly is arrested and lawfully detained, though without actual trial under any Preventive Detention Act, there can be no

doubt that under the law as it stands, he cannot be permitted to attend the sitting of the House. A declaration that he is entitled to do so, even under the armed escort, is entirely out of question. On the second issue, the court observed that as long as the detenu continues to be a Member of the legislature—drawing the emoluments of his office, receiving summons to attend—he is entitled to the right of correspondence with the legislature, and to make representation to the Speaker and the Chairman of Committee of Privileges and no executive authority has any right to withhold such correspondence.

This right flows not merely from principles of natural justice, which will be violated if such correspondences are withheld, but also as an entitlement of a continuing Member of the House. He would also appear to be entitled to this privilege under Article 194(3) of the Constitution under which English parliamentary practice has to be followed until a law is enacted by the legislature defining the powers, privileges and immunity of the House.

Case 34

In Re: Pillalamarri Venkateswarlu, a detenu in

the Central Jail v. The District Magistrate and Superintendent, Central Jail

AIR 1951 Mad. 269: MANU/TN/0043/1951 GOVINDA MENON AND KRISHNASWAMI Nayupbu, J. J. Date of Judgment: 27.03.1950

FACTS-IN-BRIEF

Shri Pillamarri Venkateswarlu was a Member of the Madras Legislative Assembly. He continued to represent his constituency in the Madras legislature until he was arrested in pursuance of the order issued under the provisions of the Madras Maintenance of Public Order Act. He made a petition to the court on 21 July 1949, but as the same was not disposed of until 26 January, a fresh petition was filed. Though the original application was under Section 491 of CrPC, the high court requested to dispose of it under Article 226 of the Constitution to issue writs in the nature of habeas corpus. ISSUE

Whether a Member of a legislature detained under the Preventive Detention Laws can claim privilege of freedom from arrest? DECISION

So long as the legislature of the State has not provided by a law and declared the rights, immunities and privileges of its Members, the English system will prevail, and if under the English system there is no immunity from arrest in case ofa preventive

detention order, a Member of legislature in India also cannot have it.

In Re: Pillalamarri Venkateswarlu v. The District Magistrate and Superintendent

277

SUMMARY OF THE JUDGMENT ‘The court has made its observations in this case in light of English law. The court has widely discussed the position in English law on preventive detention and then applied it in this case. The court has also discussed its power to interfere with this issue. And it was observed that since the English courts have the power to discuss it, so this court

also has the same powers. The court observed that the petitioner cannot claim any immunity from arrest since under English law, the immunity extends to freedom from arrest for a civil

process or for a debt due. It is also clear that this immunity does not extend to

indictable offences at all. The court while referring to English law made a further observation that the object of privilege was doubtless to secure the safe arrival and regular attendance of Members on the scene for their parliamentary duties. It was never held to protect the Members from the consequences of treason, felony, or breach of peace.

Case 35

Jagjit Singh v. State of Haryana and Ors (2006) 11 SCCI Y. K. SABHARWAL, C. J., C. K. THAKKER AND P. K. BALASUBRAMANYAN, J. J. Date of Judgment: 11.12.2006

F ACTS-IN-BRIEF

The petitioners were elected to the Assembly in the election held in February 2000. Impugned orders disqualifying the petitioners were passed on 25 June 2004. The voting for election to Rajya Sabha took place on 28 June 2004. Having ceased

to be Members of the Assembly with immediate effect, the petitioners could not vote in the said election. They challenge the legality of the orders passed by the Speaker of the Haryana Legislative Assembly, in exercise of the powers conferred under the Tenth Schedule to the Constitution of India, which disqualifies the petitioners from being Members of the Assembly. The four petitioners were independent Members of the Assembly. Petitioner Jagjit Singh belonged was a member of Democratic Dal of Haryana. He was a only Member representing his party in the Assembly. Petitioner Karan Singh Dalal was a lone representative of a political party called Republican Party of India in the Assembly. The challenge to the orders of disqualification was made primarily on the ground of violation of principles of natural justice. ISSUE

Was there any illegality in the orders passed by the Speaker holding that the petitioners have incurred disqualification as provided in paragraph 2(2) of the Tenth Schedule of the Constitution of India?

Jagjit Singh v. State of Haryana and Ors

279

DECISION

Illegality could not be inferred on the Speaker for holding that the petitioners have incurred disqualification as provided in paragraph 2(2) of the Tenth Schedule of the Constitution of India, merely on the ground that he relied on his personal knowledge of having seen and heard the petitioners for coming to the conclusion that persons in the electronic evidence are the same as he has seen and so also their voices. SUMMARY OF THE JUDGMENT It was contended that the Speaker had no basis for coming to the conclusion that the independent Members had joined the Congress (I). It is claimed that the impugned

orders are clearly a result of malafides of the Speaker. The main contention is that since principles of natural justice have been violated, the impugned orders are null. The court responded: ‘the Speaker, while exercising power to disqualify members, acts as a Tribunal and though validity of the orders, thus, passed can be questioned in the writ jurisdiction of this court or high courts, the scope of judicial review is limited

as laid down by the Constitution Bench in Kihoto Hollohan v. Zachillhu and Ors.

1992 supp.(2) SCC 651. The orders can be challenged on the ground of ultra vires or

malafides or having been made in colourable exercise of power based on extraneous and irrelevant considerations’.

As per the court, the question to be asked in the ultimate analysis would be whether

the person aggrieved was given a fair deal by the authority or not? Could a reasonable person, under the circumstances in which the Tribunal was placed, pass such an order? The answer to these questions would determine the fate of the case. The court had no difficulty in accepting the contention that there is a fundamental difference between an independent elected Member, and the one who contests and wins on ticket given by a political party. The Speaker concluded that ‘there is no room for doubting the authenticity and accuracy of the electronic evidence produced by the petitioner’.

It was strenuously contended by learned counsel for the petitioners that the

Speaker, while passing the impugned orders, has relied upon his personal knowledge,

which is wholly impermissible for a tribunal and contrary to the principles of fair play and violative of the principles of natural justice. In response, the court said the Speaker has only noticed that he has had various opportunities to see the petitioners in the Assembly and those shown in the recording are the same persons. We are unable to find fault with this course adopted by the Speaker. There is also nothing wrong or illegal in comparing signatures and coming to the conclusion that the same are that of the petitioners. These proceedings before the Speaker are not comparable with the arbitration proceedings before the arbitrators. It was also contended that paragraph 2(2) of the Tenth Schedule deserves to be

strictly construed. The submission is that the word ‘join’ in paragraph 2(2) deserves a

strict interpretation in view of serious consequences of disqualification flowing there

280

Summary of Cases

from an order that may be made by the Speaker. In response, the court stated the object of defection law has to be borne in mind. The question to be considered is

whether a Member formally joining a political party is the requirement so as to earn disqualification, or the factum of joining can be inferred from facts and conduct of a Member, without a Member formally joining a political party inasmuch as not

filling the form required to be filled by a Member of the political party under the rules and regulations of that party or payment of any prescribed fee. The court did not find any illegality in the impugned orders, holding that the petitioners have incurred disqualification as provided in paragraph 2(2) of the Tenth Schedule of the

Constitution of India.

Case 36

Jai Singh Rathi and Ors v. State of Haryana AIR1970 P&H 379 MEnakr SINGH, C. J., HARBANS SINGH AND D. K. ManajaNn, J. J.

Date of Judgment: 28.04.1969

FACTS-IN-BRIEF

The petitioners were Members of the Haryana Legislative Assembly. They filed writ petitions before the high court, challenging their suspension by the House. The petitioners were warned for unruly behaviour and thereafter asked to leave the House. Since they refused to abide by the said direction of the Speaker, a motion for suspension of the petitioners for breach of privilege of the House and its contempt was moved by respondent no. 5. On the same day, while the first motion was being considered by the

Privileges Committee, respondent no. 6 moved a motion for suspension of Rule 104 of

the Assembly rules, which gave the power of suspension of a Member to the Speaker. Rule 121 of the rules states that a motion for suspension of a rule in its application to a particular motion has to be moved, while the latter motion is before the House. Rule 104 was ultimately suspended and the Members were thereafter suspended by the House through voting. The contention of the petitioners was that the second motion was not present before the House since it was still being considered by the Privileges Committee. They challenged the suspension as well as the proceedings of the House after their suspension as the said proceedings also reeked of alleged illegality suffered by the suspension motion. They alleged that the suspension of the rule was illegal. They also challenged the suspension on the ground that by mere suspension of Rule 104, a power that is vested in the Speaker is not re-vested in the House. They also challenged the suspension on grounds that it violated their right to free speech and expression (voting) in the House guaranteed under Article 194(1). The proceedings

were also challenged on the grounds of malafide, etc.

282

Summary of Cases

ISSUES

1. Whether strict compliance of Assembly Rules was required to make an action of

the House legitimate? 2. Whether irregularity in compliance with the rules can be judicially scrutinised?

3. Did the House have the power to suspend a Member, which could override the power vested in the Speaker by the Assembly Rules?

DECISIONS

The Speaker and Secretary of the Assembly have immunity from judicial proceedings by virtue of Article 212 of the Constitution and they cannot be made party to a judicial proceeding.

1. Non-compliance with Assembly rules strictly is a mere procedural irregularity and it cannot be considered to be an illegality to warrant judicial intervention. 2. The House had the power to suspend the Member and the said power was not dependent on Assembly Rules. The power emanated from the privilege enjoyed

by the British House of Commons, which subsisted on the date of entering into

force of the Constitution. The same was protected from judicial scrutiny by

Article 194 (3) of the Constitution.

3. A Member’s freedom of speech guaranteed by Article 194(1) is subject to rules

made under Article 208(1). The said rules are, in turn, subject to the privileges of the House under Article 194(3). 4, The Members have a right to vote in the House under Article 189(1). But the said

right can only be exercised by a Member who is lawfully present in the House.

SUMMARY OF JUDGMENT As a preliminary observation, the court said that Article 212 gave immunity to the Speaker and the Secretary of the Assembly. Therefore, they were unnecessary parties and no relief could be claimed against them.

The first contention of the petitioners was that Rule 121 was not strictly complied with while considering the motion for suspension of Rule 104 and, therefore, owing to this illegality, the motion for suspension of the Members was invalid. In the eyes of the court this is a mere irregularity in procedure which could not be looked into by the court since Article 212 barred such interference. The next contention was that Rule 104 being suspended, the power to suspend a Member did not automatically re-vest in the House. The court said that this argument was fallacious since the power to suspend is a privilege the House could claim under Article 194(3), and the same was not confined to the Assembly Rules. Thereafter, the petitioners argued that the action of the House amounted to the breach of their rights under Article 194(1) and Article 189. For the first part of

the argument the cout said that the power under Article, 194(1) is subject to rules

Jai Singh Rathi and Ors v. State of Haryana

283

made under Article 208(1). The rules made under Article 208(1) are in turn subject

to the privileges of the House under Article 194(3). Therefore, by corollary, the right under Article 194(1) is subject to the privilege of the House under Article 194(3). Moving on to Article 189 it was held thus: Sub-article (1) of Article 189 gives a right of vote to a member in determination of questions before the House of Legislature of a State, but the suspension of a member from the House in exercise of its power and privilege under Article 194(3) is not causing any vacancy in the House in the sense in which the same is used in the

remaining sub-articles of Article 189 and in Article 190. Suspension does not cause

a vacancy in the House of Legislature, and it merely enforces absence from service

of the House as on account of a conduct. When privilege under

a measure of punishment for contempt of the House, as in this case, member's disobedience and defiance of the Chair and for disorderly such absence is enforced by the House in exercise of its power and Article 194(3) then the right of vote is not taken away from that

member but he is only placed in the same position as if he was not present in the

House. What is guaranteed as a right of vote is to a member present in the House.

On the basis of the above view, it was held that the right to vote was not available to a

person who was not present in the House. The third argument, which was raised by the petitioners, was that the entire proceedings after the suspension of the Members was a nullity. But this argument could not stand alone since the first two arguments had failed. Therefore, this submission was also rejected.

Case 37

Janaganavadi Bharti v. Government of India and Ors (2005) (5) SCALE 298 R. C. Lanortt, C. J. I., D.M. DHARMADHIKARI AND G. P. MATHUR, J. J. Date of Judgment: 11.05.05

F ACTS-IN-BRIEF

The petitioner filed a writ petition in the high court, purportedly in public interest, seeking an adjudication by the high court that once a person is appointed as Prime Minister or minister in the Central Government, he has to vacate his seat in Parliament. The petition was dismissed by the high court as having no force. Aggrieved by the order of the high court, this special leave petition was filed. ISSUE Whether a person appointed as Prime Minister or minister of the Central Government has to vacate his seat in Parliament?

DECISION

The court after looking into the contentions dismissed the petition devoid of any merit and made no observations.

SUMMARY OF THE JUDGMENT The petitioner relied on the Article 75, 88, 100 and 101 of the Constitution and placed reliance on some cases like Kesavananda Bharati and D. C. Wadhwa and Ors v. State of Bihar. But the court did not accept any of the contentions and dismissed the petition devoid of the merits.

Case 38

Jaya Bachchan v. Union of India and Ors AIR 2006 SC 2119: 2006 (3) KLT 576 (SC): RLW 2006 (3) SC 2491: 2006 (5) SCALE 511: (2006) 5 SCC 266 Y. K. SABHARWAL, C. J., C. K. THAKKER AND R. V. RAVEENDRAN, J. J. Date of Judgment: 08.05.2006

FACTS-IN-BRIEF The Government of Uttar Pradesh, by Official Memorandum dated 14 July 2004,

appointed the petitioner as the Chairperson of Uttar Pradesh Film Development

Council (the Council) and sanctioned to her the rank of a Cabinet Minister with

various facilities, e.g. honorarium of Rs 5,000/- per month, daily allowance at Rs 600 per day within the State and Rs 750/- outside the State. Rs 10,000/- per month

towards entertainment, expenditure, staff car with driver, telephones at office and residence, etc. The President of India, on 16 March 2006, in exercise of powers conferred under Clause (1) of Article 103 of the Constitution of India decided after obtaining the opinion of the Election Commission as required by Article 103(2), that the petitioner

stands disqualified for being a Member of the Rajya Sabha on and from 14 July 2004.

A petition was filed under Article 32 to challenge this order. The challenge is also to the opinion dated 2 March, 2006 rendered by the Election Commission to the Hor’ble President, under Clause (2) of Article 103, that the petitioner became disqualified

under Article 102(1) (a) of the Constitution for being a Member of the Rajya Sabha on, and from 14 July 2004 on her appointment by the Government of Uttar Pradesh,

as Chairperson of the UP Film Development Council. The Election Commission, after referring to the facts and the law expressed the opinion that the office of Chairperson of the Council, to which the petitioner was appointed by the State Government on the terms and conditions specified therein,

is an ‘office of profit’ under the Government of Uttar Pradesh for purposes of

286

Summary of Cases

Article 102(1) (a) of the Constitution. Also, that Section 3 of Parliament (Prevention of

Disqualification) Act, 1959 did not exempt the said office of profit from disqualification under Article 102(1) (a) of the Constitution.

ISSUE Whether the petitioner was disqualified under Article 102 (1) (a) for being a Member

of the Rajya Sabha? DECISION

The petitioner was holding an office of profit under the Government. The office carried

with ita monthly honorarium of Rs 5000/-, entertainment expenditure of Rs 10,000/-, staff car with driver, telephones at office and residence, free accommodation and

medical treatment facilities to self and family members, apart from other allowances, which are pecuniary gains.

SUMMARY OF THE JUDGMENT The petitioner contended that the post of Chairperson of the Council, and the conferment of the rank of Cabinet Minister, were only ‘decorative’; that she did not receive any remuneration or monetary benefit from the State Government; that she

did not seek residential accommodation, nor used telephone or medical facilities; that though she travelled several times in connection with her work as Chairperson, she never claimed any reimbursement; and that she had accepted the Chairpersonship of the Council honorarily, and did not use any of the facilities mentioned in the O.M. dated 22 March 1991. The petitioner further contended that in the absence of any finding by the Election Commission that she had received any payment or monetary consideration from the State Government, she could not be said to hold any office of profit under the State Government and, therefore, her disqualification was invalid. Clause (1)(a) of Article 102 provides that a person shall be disqualified for being

chosen as, and for being, a Member of either House of Parliament if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder. The term ‘holds an office of profit’ though not defined, has been the subject matter of interpretation, in several decisions of this court. An office of profit is an office which is capable of yielding a profit or pecuniary gain. Holding an office under the Central or State Government, to which some pay, salary, emolument, remuneration or non-

compensatory allowance is attached, is ‘holding an office of profit’. The question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form. Nomenclature is not important. In fact, mere use of the word ‘honorarium’

Jaya Bachchan v. Union of India and Ors

287

cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient. Payment of honorarium, in addition to daily allowances in the nature

of compensatory allowances, rent-free accommodation and chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary

gain and hence constitute profit. For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the ‘pecuniary gain’ is ‘receivable’ in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not. If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102(1)(a). It is well settled that where

the office carries with it certain emoluments or the order of appointment states that

the person appointed is entitled to certain emoluments, then it will be an office of

profit, even if the holder of the office chooses not to receive/draw such emoluments. What is relevant is whether pecuniary gain is ‘receivable’ in regard to the office and not whether pecuniary gain is, in fact, received or received negligibly. Conclusively, in light of the facts, the office carried with it a monthly honorarium of Rs 5000/-, entertainment expenditure of Rs 10,000/-, staff car with driver, telephones

at office and residence, free accommodation and medical treatment facilities to self and family members, apart from other allowances, etc. As per the court, the fact that

these are pecuniary gains, cannot be denied. The fact that the petitioner is affluent or was not interested in the benefits/facilities given by the State Government or did not,

in fact, receive such benefits till date, are not relevant to the issue.

Case 39

Jayashankara Gowda v. Chief Secretary ILR1988 KAR

1005

BopANNna, J.

Date of Judgment: 14.03.1988

FACTS-IN-BRIEF The

constitutional

validity

of the

Karnataka

Local

Authorities

(Prohibition

of

Defection) Act, 1987, was challenged mainly on ground of violation of Articles 14,

19(1)(a) and 19(1)(c). A few of the many objections were: (a) the act is violative of

the constitutional rights guaranteed under the Constitution of India; that defection of an individual is sought to be penalised, whereas defection ofa group of individuals

is legalised and thereby there has been discrimination, which violates their rights,

protected under Article 14 of the Constitution; (b) that Sections 3 and 4 of the act should be read as a whole and thus construed the provisions of the act take away the right of adult franchise, which is the basic structure of the Constitution, and the only remedy to redress the evils of defection is the right of recall and not the right to disqualify the Members for their acts of defection; (c) that the power of judicial review

is also taken away, as is clear from Section 4 read with Section 8 of the defection act; that the right to free and fair elections is one aspect of the fundamental right to the freedom of speech protected under Article 19(1)(a) of the Constitution of India; that

in the absence of proper definition of the word ‘defection’ in the act, the provisions of Sections 3 and 4 impair the fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(c) of the Constitution of India.

ISSUES 1. Whether the absence ofa definition of ‘defection’ has any bearing on constitutional

validity?

Jayashankara Gowda v. Chief Secretary

289

2. Whether fundamental rights are infringed by imposition of restrictions on right to defect? 3. Whether the act is opposed to the basic structure of the Constitution of India? DECISION

1. Disqualification under the act is attributed to two grounds—if a Member had voluntarily given up his membership of the political party to which he belongs or if he votes or abstains from voting in any meeting of the Zilla Parishad or Mandal Panchayat, etc. So, in the context in which these words are used ‘votes or abstains from voting’ in Section 3(1)(b), the meaning of the word ‘defection’ becomes

clear, that is to say, defection means that a Member should vote or refrain from voting in any meeting of the Zilla Parishad or Mandal Panchayat contrary to the

directions issued by the concerned political party, subject to the proviso contained

in Section 3(1)(b) and subject to the conditions prescribed under Section 3(1)(b).

Therefore, no infirmity could be attached to the constitutional validity of the act on the ground that the word ‘defection’ is not defined under the act. 2. The right to vote in the Zilla Parishad or Mandal Panchayat is not a fundamental or constitutional right, but it is a statutory right conferred under the relevant statute. The working of Mandal Panchayat and Zilla Parishad is a matter of detail and that detail rests necessarily on the party system and the membership of a political party to which a Member belongs.

3. Section 3 of the act does not impose an absolute disqualification in case of defection. The right to vote in the Zilla Parishad or Mandal Panchayat meetings cannot be put on the same plane as that of a constitutional right or fundamental right. That right is a statutory right and the statute can control that right by imposing reasonable restrictions. These restrictions are neither arbitrary nor discriminatory. The petitioners cannot claim constitutional guarantee under Article 14 or under

Article 19(1) (a) and (c) of the Constitution.

SUMMARY OF THE JUDGMENT The petitioners argued: ¢ Firstly, that in the absence of any party system in the Constitution, the act is

violative of the constitutional rights guaranteed under the Constitution of India; that the defection of an individual is sought to be penalised whereas the defection of a group of individuals is legalised and thereby there has been discrimination which violates their rights, protected under Article 14 of the Constitution; * Secondly, that the power of judicial review is also taken away as is clear from Section 4 read with Section 8 of the Defection Act; that the right to free and fair elections is one aspect of the fundamental rights to freedom of speech protected under Article 19(1)(a) of the Constitution of India;

290

Summary of Cases

* Thirdly, that in the absence of proper definition of the word ‘defection’ in the act, the provisions of Sections 3 and 4 impair the fundamental rights guaranteed

under Articles 19(1)(a) and 19(1)(c) of the Constitution of India.

Contrary

to the petitioners,

Government

grounds:

sustained

the Government

Pleader appearing for the State

the validity of the Anti-defection

Act

on

the following

¢ That the act does not affect the basic structure of the Constitution on the ground that the jurisdiction of the high court under Article 226 of the Constitution is taken away. He submitted that Section 8 of the act does not take away the jurisdiction of the high court under Article 226 of the Constitution. ¢ That the analogy of the right of a Member of the Legislative Assembly to exercise

his constitutional right is wholly inapplicable to the right ofa Zilla Parishad or a

Mandal Panchayat member to vote under the Zilla Parishad Act; that che Members

of the Legislative Assembly have certain constitutional rights by virtue of the provisions of the Constitution whereas the Zilla Parishad or Mandal Panchayat members only have certain statutory rights conferred by the Zilla Parishads Act;

that the election of these Members to Zilla Parishad and Mandal Panchayat, as

the case may be, is controlled by the Karnataka Zilla Parishads, Taluka Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (Conduct of Election) Rules, 1985, framed under the Zilla Parishads Act; that the provisions of Article 19(1)(a)

and 19(1)(c) are not applicable to the facts of these petitions since the members of the Zilla Parishad and Mandal Panchayat have only a statutory right to vote

under the Zilla Parishads Act and not a constitutional right and that statutory right could be made subject to reasonable restrictions and those restrictions are

found in Section 4 of the act. * Also, that the disqualification prescribed under the act also extends to local bodies and the machinery prescribed for deciding whether a person has been disqualified himself is adequate for the purpose of adjudicating such disqualification; that the act prescribes a summary enquiry, and that is sufficient for the adjudication of disqualification since the proceedings of election would disclose who had voted for whom and that would provide enough material to come to the conclusion whether a person has incurred the disqualification under Section 3 of the act. The first issue entertained by the court was whether the absence of a definition of the word ‘defection’ in the act has any bearing on the constitutional validity of the act. The answer was, though the word ‘defection’ is not defined in the act, it is clear from the preamble to the act that it was enacted to prohibit defections by the members of the Zilla Parishads and Mandal Panchayats. From the title to the act and its preamble the meaning of the word ‘defection’ could be understood clearly and unambiguously. The marginal note to Section 3 of the act reads as follows: ‘Disqualification on the ground of defection.’ Therefore, no infirmity could be attached

to the constitutional validity of the act on the ground that the word ‘defection’ is not

Jayashankara Gowda v. Chief Secretary

29|

defined under the act. Sections 3(1)(a) and 3(1)(b) are self-explanatory and for the

purpose of the act, the word ‘defection’ has to be understood on the plain terms of Sections 3(1){a) and 3(1)(b).

The second issue entertained was whether any fundamental rights of the petitioners have been infringed by imposing certain restrictions on their right to defect, all because they happen to be the members of a political party. The court clarified that the membership of a political party cannot be a criteria to test the validity of the acts of defection as the right to defect cannot be confused with the right to dissent and if that distinction is kept in view, voting or abstaining from voting contrary to the

stipulation in Section 3(1)(b) or to the proviso to Section 3(1)(b) would not amount

to defection at all.

Another contention looked into by the court was the argument that Article 19(1)(c)

of the Constitution should be considered. According to the petitioners, the provisions of the impugned act impose an unreasonable restriction on their fundamental right to form a breakaway party under Article 19(1)(c) of the Constitution. The simple answer

to this by the court was that it is always open to the petitioners to resign from the party to which they belong and to form their own party or association and no restrictions are imposed on them under the impugned act to remain in the political party which has sponsored their candidature and voted them into the Zilla Parishad or the Mandal Panchayat. For the reasons elaborated above, the court did not uphold the contention of the petitioners that the impugned

Article 14 of the Constitution.

act is violative of Article 19(1)(a) and

19(1)(c) and

The court finally concluded as follows: (a) neither the provisions of Section 3(1)(b)

nor the provisions of Section 4 of the act are invalid being violative of Article 14 or

Article 19(1)(a) and 19(1)(c) of the Constitution; (b) the provisions of Section 8 of

the act are not bad in law on the ground it takes away the power of judicial review of the actions of the authorities constituted under Section 4 of the act. The power of judicial review by this court under Article 226 of the Constitution is not taken away by the provisions of Section 8 of the act; (c) the act being a State enactment,

it is impermissible for the petitioners to challenge the constitutionality of the act on the ground it is opposed to the basic structure of the Constitution; (d) right to vote is neither a fundamental right nor a constitutional right, but a statutory right; (e) the

act is a valid piece of legislation and the provisions of Section 3(1)(b), 4 and 8 of

the act do not offend any of the provisions of the Constitution for these reasons; the petitioners were not entitled to the declaration as prayed for.

Case 40

Joginder Singh Toor and Anr v. Union of India through Secretary, Law, Justice and

Companies Affairs, New Delhi and Ors AIR 1994 P&H 35: (1994)106 PLR 121 S. D. AGARWALA, C. J. AND JAWAHAR LaL Gupta, J. Date of Judgment: 20.07.1993

FACTS-IN-BRIEF On

10 May

1993, a notice of motion as contemplated under Article 124(4) of the

Constitution of India for removal of Justice V. Ramaswami from his office as a Judge of the Supreme Court of India was taken into consideration by the Lok Sabha.

When voting took place in the Lok Sabha on 11 May 1993, as part of removal of

Justice V. Ramaswami

under Article 124(4) of the Constitution of India read with

Section 3 of the Judges (Inquiry) Act, 1968, only 196 votes were cast for the motion

and no vote was cast against the motion. The motion was thereafter dropped as the requisite majority under Article 124(4) of the Constitution of India was not obtained. Subsequently, a petition was filed by two Advocates of the High Court of Punjab and Haryana for a relief that the Speaker of the Lok Sabha be directed to identify those Members of Parliament who have abstained from voting when the motion was put to vote in the House, as the proceedings recorded does not reveal the names of the persons who abstained from voting, and thereafter to initiate proceedings against them for their removal from membership of the Lok Sabha. In the alternative, it is prayed that the motion be declared as passed since abstention by the Members of the

Lok Sabha amounts to tacit approval by them and directing the Speaker to present the address to the President of India for the removal of Justice V. Ramaswami and also for

a direction that the Speaker of the Lok Sabha be directed to reconvene the House to vote on the motion for and against the removal of Justice V. Ramaswami.

Joginder Singh Toor and Anr v. Union of India through Secretary

293

ISSUES

1. Can it be said that the Member of the Lok Sabha, who abstained from voting, acted against his oath? 2. Whether abstention from voting require initiation of proceedings against the Members for their removal from the House. DECISION

It cannot be said that the Members of the Lok Sabha who abstained from voting acted against their oath. Mere abstention from voting does not require initiation of proceedings against the Members for their removal from the House.

SUMMARY OF THE JUDGMENT The petitioners urged that the functions of the Members of the Lok Sabha under

Article 124(4) of the Constitution of India are judicial in nature and consequently they have no right to abstain from voting. Another argument raised on behalf of the

petitioners was that the Members who abstained from voting have acted against their

oath and consequently they are liable to be removed from the membership of the House. However, in the opinion of the High Court of Punjab and Haryana, the arguments

of the petitioners were wholly fallacious. As per the court, in proceedings regarding removal of a Judge, it cannot be held that a Member of the Lok Sabha exercises judicial functions. There is no provision in the Constitution which shows that it is incumbent upon every Member of the Lok Sabha to vote and that he has no right to abstain from

voting. According to the court, once a Member of the Lok Sabha is present in the House when a notice of motion is being considered for removal of a Judge, it is always open to him either to vote for or against the motion or abstain form voting. The court could find no illegality on the part of the Members of the Lok Sabha in abstaining from voting at the time when notice of motion for removal of Justice V. Ramaswami was being considered by the Lok Sabha.

Even if the Members of the Congress Party abstained from voting in the proceedings of the removal of Justice V. Ramaswami, in the opinion of the court,

they were not duty bound to vote under the Constitution, and as such their action of

abstention cannot be said to be contrary to the Constitution. Moreover, in the form of the oath, it is not stated that every time when a Member of the Lok Sabha takes part

in the proceedings of the Lok Sabha, he must vote either for or against and cannot

abstain from voting. Hence, it cannot be said that the Member of the Lok Sabha who

abstained from voting acted against their oath.

Case 41

K. Anandan Nambiar v. Chief Secretary to Government of Madras AIR 1966 SC 657 P. B. GAJENDRAGADKAR, C. J., K. N. WaNcHoo, M. H1iDAYATULLAH, R. S. BacHAWAT AND V. RaMASWaMI, J. J.

Date of Judgment: 27.10.1965

F ACTS-IN-BRIEF

Shri K. Anandan Nambiar was a Member of Parliament. He was detained in Central Jail, Triuchirapalli, on order passed by the Government of Madras under Rule 30(1) (b) and (4) of the Defence of India Rules,

1962, as he was considered prejudicial

to the defence of India and public safety. Thereafter, he filed a writ petition under

Article 32 of the Constitution of India challenging the validity of the detention order. Shri R. Umanath, who was also a Member of Parliament, was similarly detained on

the order of the Government of India. He also filed his writ petition. Both the writ petitions were heard by the court together. ISSUE

Ifa claim for freedom from arrest by a detention order cannot be sustained under the privileges of the Members of Parliament, can it be sustained on the ground that it is a constitutional right which cannot be contravened? DECISION

The privileges of the Members of Parliament are not constitutional rights. These rights accrue to Members of Parliament after they are elected, but they are not constitutional rights in the strict sense, and quite clearly, they are not fundamental rights at all.

K. Anandan Nambiar v. Chief Secretary to Government of Madras

295

SUMMARY OF THE JUDGMENT The case elaborately discusses the privilege, immunity to Members of Parliament from arrest in criminal cases. The court has made some observation on the status

of the privileges of the Members of the House in regard to preventive detention. While dismissing the petition, the court laid down the clear picture that privileges of Members are not constitutional or fundamental rights. The court observed that the privileges, powers and immunities of the Members of the Indian legislature are the same as those of the Members of the House of Commons as they existed at the time commencement of the Indian Constitution. And the position about the privileges of the Members of the House of Commons in regard to preventive detention is settled that the privilege of freedom from arrest is limited to civil causes, and has not been allowed to interfere with the administration of criminal justice or emergency legislation. Privileges of Members are not rights, which can be properly described as constitutional rights of the Members of Parliament at all. The court observed that Article 79, on which the petitioner based his argument, deals with the Constitution of Parliament and it has nothing to do with the individual rights of the Members of Parliament after they are elected. In respect to Article 85 and 86, which were also used in the contentions of the petitioner, the court observed that the context in which these articles appear shows

that the subject matter of these articles is not the individual rights of the Members

of Parliament, but they refer to the rights of the President to issue summons for the ensuing session of Parliament or to address the House or Houses. In respect to freedom of speech in the House, the court observed that this right under Article 105(1) and (2) is a part of privileges of the Members of the House and

not a fundamental right of the Members. The basis of democratic form of Government is that the Members of the legislature must be given absolute freedom of expression when matters are brought before the legislature, but the same is available only when they attend the session of the House and deliver their speech within the House. If the order of detention validly prevents from attending the session of Parliament, no occasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded.

Case 42

K. Anbazhagan and Ors v. The Secretary,

The Tamil Nadu Legislative Assembly, Madras and Ors AIR 1988 Mad 275

M. N. CHANDURKAR, C. J. AND Srinivasan, J. Date of Judgment: 16.04.1987

FACTS-IN-BRIEF

In pursuance of the resolution passed by the Dravida Munnetra Kazhagam (DMK),

ten Members of the Tamil Nadu Legislative Assembly belonging to the DMK, burnt in a public place a copy ofa part of the Constitution of India—the portion of Part XVII of the Constitution, which states that Hindi to be the Official Language

of the Union. (It is popularly known as Constitution burning agitation or anti-Hindi agitation.) Consequently, the Tamil Nadu Legislative Assembly passed a resolution on 22 December 1986 declaring the MLAs’ conduct derogatory to the dignity of the

Constitution as well as the dignity of the House and hence declaring them unfit to

continue as Members of the House. The resolution expelled them from the membership of the House and also declared that their seats had become vacant from 22 December 1986. The expelled Members petitioned against the expulsion contending that the resolution was unconstitutional, null and void. ISSUES

1. Whether the power of expulsion is inconsistent with any of the other provisions

of the Constitution of India and whether the power of expulsion can be negated on the ground that (i) an elected Member

is entitled to continue as a Member

for a period of five years, or (ii) a particular constituency may go unrepresented

because of the expulsion of an elected representative? _—

-

oe

K. Anbazhagan and Ors v. The Secretary, The Tamil Nadu Legislative Assembly

297

2. Whether the expulsion is violative of Articles 19(1) and 29(1), etc.?

3. Whether the resolution of expulsion is open to challenge on the ground that (i) it amounts to a Bill of Attainder; or (ii) it is a punishment for violation of oath; or

(iii) failure to follow procedure since the concerned Members were not heard; or (iv) a seat becoming vacant on account of ex-ulsion of a Member is not expressly contemplated by Section 150 of the Representation of the People Act, 1951? 4. Whether Section 150 of the Representation of the People Act contemplates expulsion as a mode by which a seat in the House can become vacant? DECISION

1. The power of expulsion is not inconsistent with any of the other provisions of the Constitution of India. Such power cannot be negated on the ground that an elected Member is entitled to continue as a Member for a period of five years or that a particular constituency may go unrepresented because of the expulsion. 2. A conduct which is expressly made penal cannot be justified on the ground of a fundamental right under Article 19(1)(a), and in any case burning the Constitution

would not fall within ‘freedom of speech and expression’. The Resolution of expulsion is not ‘law’ within the meaning of Article 13 of the Constitution of India and is not open to challenge on the ground of violation of Articles 19(1)

(c) or 29(1) of the Constitution of India. No right of the petitioners under Article 19(1)(c) or Article 29(1) is affected by the expulsion.

3. The resolution of expulsion is not open to challenge on the ground that it amounts to a Bill of Attainder or that it is a punishment for violation of an oath. Similarly, the resolution is not open to challenge on the ground that the concerned Members were not heard, as such a challenge would be a challenge on the ground of failure to follow a procedure which would amount to an ‘irregularity’ and not an ‘illegality’ having regard to the provisions of Article 212 of the Constitution. 4. The resolution of expulsion is not open to challenge on the ground that a seat becoming vacant on account of expulsion of a Member is not expressly contemplated by Section 150 of the Representation of the People Act because the opening part of Section 150 will also cover a case of seat becoming vacant as a result of expulsion. SUMMARY OF THE JUDGMENT The issue before the court was of considerable importance and it related to the power of the State Legislatures and Parliament to expel its Members. For the petitioners, the following contentions were advanced, inter alia, to argue that Parliament/State Legislatures do not posses the power to expel: ¢ The act of burning a copy of a part of the Constitution was merely a symbolic expression of dis-approbation of Part XVII of the Constitution and fell within

298

Summary of Cases

Explanation I of Section 2 of the Prevention of Insults to National Honour Act, 1971. Assuming that burning of the copy of a part of the Constitution was an offence, the act of burning was violative of the oath of allegiance and in any case violation of oath of allegiance was not an offence of such a nature that it will result in disqualification by way of expulsion. (This argument was based on the decision of the Kerala High Court in Kallara Sukumaran v. Union of India, AIR 1986 Ker. 122.)

The legislature has no power or privilege to expel a Member for violation of oath of allegiance. If the power of expulsion as a part of the privilege was not exercised by the legislature prior to 1978, i.e. prior to coming into force of the Forty-fourth Constitution Amendment Act, the House cannot now exercise that privilege. The expulsion would add to the disqualifications and adding or superimposing a disqualification was not within the realm of Article 194(3) of the Constitution of

India. A legislature had no power to add to any disqualifications. An Indian legislature does not have the power to expel its own Member; if at all there was a power of expulsion, it could be resorted to only if the conduct of the Members creates disorder within the four walls of the House affecting the proceedings of the House or lowers the dignity of the House. The conduct for which a Member of the Assembly is to be expelled must have a connection with his duties as a Member.

The resolution of expulsion passed by the Assembly was law within the meaning of Article 13 and inasmuch as the State Legislatures do not have legislative competence to enact a law or pass resolutions disqualifying or expelling its Members on the ground that they have committed an offence by violation of oath because the power to legislate vested only in Parliament under Entry 72 and

93, the action of the State Legislature was bad in law. The power to expel was a part of the power of the legislature to regulate its own composition and was not available to the Indian legislatures. That having regard to the unreasonableness and arbitrariness of the procedure adopted by the House, the right of the petitioner to continue as a Member of the House was violated and the resolution was therefore violative of Article 14 of the Constitution of India. The resolution is violation of Articles 19(1)(a) and (c) and 29(1).

The Advocate General appearing for the State argued that the power of expulsion is an independent privilege of the Legislative Assembly and the power of expulsion is exercised by the House of Commons as a punitive power and such is not incompatible with any of the provisions of the Constitution and particularly Articles 170, 172, 190 and 191. With regard to the grievance of the MLAs that they were not given an opportunity of being heard before the House, the learned Advocate General

K. Anbazhagan and Ors v. The Secretary, The Tamil Nadu Legislative Assembly

299

argued that the procedure adopted by the Legislative Assembly is not open to judicial scrutiny. He further argued that expulsion of a Member from the Legislative Assembly does not result in any disqualification and as such by the power of expulsion no new disqualification is added to those which are originally contemplated by the Constitution of India. By discussing the objective as well as various provisions in the Prevention of Insults to National Honour Act, 1971, the court held that the act of burning the Constitution is an offence and the act becomes more serious and liable to be condemned when an elected representative of the people, who but for the provisions of the Constitution and the Representation of the People Act would not have been able to claim the representative status, goes to the extent of burning or defiling or destroying the Constitution or a part of the Constitution. As per the court, it was for the House to decide how to deal with such a Member. The court further observed that the act of burning the Constitution is a clear violation of oath and the act was unbecoming of an elected representative of the people. After referring to various provisions in the Constitution relating to qualification and disqualification of Members of Parliament and explaining in detail the importance of Article 188, the court held that the elected representative of the people is duty bound to bear true faith and allegiance to the Constitution of India as by law established and to uphold the sovereignty and integrity of India. Burning a part of the Constitution is hence undoubtedly a breach of this oath. The court by quoting Erskine May's Treatise on Parliamentary Practice, Anson's Law and Custom of the Constitution and Ridges Constitutional Law observed that as far as expulsion is concerned, it is not only a part of the privilege of the House in regard to its Constitution, but it is a part of the power of punishment also. The court quoted May thus:

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.

While dealing with the questions regarding (i) whether expulsion creates new ground

of disqualification and (ii) whether the expelled Member can be re-elected or not, the court observed thus:

The fact that expulsion is not mentioned as one of the grounds on which the seat of an elected member could become vacant did not affect the power of expulsion vested under articles 105(3) and 194(3) of the Constitution of India. This expulsion does not

disqualify the expelled members from seeking re-election ... the power of expulsion cannot be negatived merely on the ground that the constituency which the expelled member represented would go unrepresented. If the constituency goes unrepresented

in the Assembly as a result of the act of an elected member inconsistent with the

300

Summary of Cases dignity and derogatory of the conduct expected of an elected member, then, it is the voters who alone will have to take the blame for electing a member who indulges in

conduct which is unbecoming of an elected representative.

The court went on to say: If in the opinion of the House, a member has conducted himself in a manner which

make(s) him unfit co serve as a member of Parliament, he may be expelled, but, unless

the cause of his expulsion by the House constitutes in itselfa disqualification to sit

and vote in the House, he remains capable of re-election. (Halsbury’s Laws of England, 4th Edition, vol. 34, paragraph 1494)

By rejecting the argument that expulsion of an elected Member would result in the

constituency which he represented going unrepresented, the court said that ‘the fact that a particular constituency may go unrepresented because its representative has

been expelled for his conduct cannot control the privilege of expulsion’.

Regarding the contention as to the violation of Articles 19(1), the court observed that ‘Art. 19(1)(a) merely guarantees to a citizen the freedom of speech and expression’.

However wide a meaning may be given to the expression ‘freedom of speech and

expression’, it cannot certainly take in a conduct which is necessarily made penal by a

statute. The conduct in the instant case consisted of burning the Constitution, which

is expressly punishable. It is nobody's case that the provision of the Prevention of insults to National Honour Act which makes defiling the Constitution or burning the Constitution an offence, is invalid. It is this conduct which became the subject matter

of the proceedings before the Assembly and so far as the facts of the present case are concerned, there is no question of any violation of Art. 19(1) (a) of the Constitution

of India arising’.

The court held that since the alleged act is highly derogatory to the dignity of the

Constitution as well as the dignity of House, it would be only for the House to decide how to deal with such Members and hence the resolution of expulsion is not open to challenge. The court thus held that the power of expulsion is necessary and incidental

to enable the House to perform its high functions and also for the safety of the State. The court also referred to several instances of expulsion that occurred in the history of the House of Commons, the United States and even in India, not only for acts done

within the four walls of the House, but for something done by a Member outside the House also if the conduct was derogatory to the dignity of the House and inconsistent

with the standard which Parliament was entitled to expect from its Members.

Thus, the verdict of the court can be recapitulated as under:

* The conduct of any person including an elected representative of the people in

burning the Constitution is not a permissible method of expressing disapprobation

of a constitutional provision and it is highly derogatory of the expected norms of

conduct of Members of the House.

* Article 194(3) includes the power of expulsion.

° The expulsion does not disqualify the expelled Members from seeking re-election.

K Anbazhagan and Ors v. The Secretary, The Tamil Nadu Legislative Assembly

301

* Burning or defiling the Constitution does not fall within Explanation I of S. 2 of the Prevention of Insults to National Honour Act, 1971, and hence amounts to an offence under the act. When a Member burns or defiles or destroys the Constitution or a part of it, it would be for the House to decide how to deal with

such a Member.

* Since an elected representative who makes an oath under Article 188 is duty bound to bear true faith and allegiance to the Constitution, burning a part of the Constitution is a breach of oath. ° The effect of the Constitution (Forty-fourth Amendment) Act, 1978, amending

Article 194(3) is that whenever a question of privilege arises, the relevant point of time for ascertaining whether a similar privilege was exercised by the House of its Members and Committees has to be determined with reference to 20 June 1979.

* The House of Commons possessed and exercised the power and privilege to expel a Member for an action which the House considered to be a misconduct even though the misconduct was committed outside the House. This power subsisted not only at the commencement of the Constitution, but in the absence

of anything to show that this power was given up between the commencement

of the Constitution and the commencement of the Constitution (Forty-fourth

Amendment) Act, such a power must be held to be subsisting, at the material time for the purposes of Article 194(3) of the Constitution of India.

¢ Unseating a Member of the House on ground of incurring a disqualification

cannot be done by the Speaker in exercise of his residuary power under Rule 312 of the Tamil Nadu Legislative Assembly Rules.

Case 43

Keshav Singh v. The Speaker MANU/SC/0048/1964: AIR 1965 SC 745 P. B. GAJENDRAGADKAR, C. J., A. K. SARKAR, J. C. SHAH, K. H. Sussa Rao, K. N. WancHoo, M. HipayaATULLAH AND N. RajJAGOPALA AYYANGAR, J. J.

FACTS-IN-BRIEF

The complicated factual matrix in this case begins with the issuance of an order for the Speaker of the Uttar Pradesh (UP) Assembly reprimanding one Shri Keshav Singh for having committed contempt of the House and the breach of privilege ofa particular Member of the House by publishing a pamphlet which bore his signature. Later, Shri Keshav Singh was ordered to be imprisoned for seven days for committing a second contempt of the House by writing a disrespectful letter to the Speaker of the Assembly. Consequently, Shri Keshav Singh was detained. Aggrieved by the said

order, Shri Singh moved the Lucknow Bench of the High Court of Allahabad under Section 491 CrPC as well as under Article 226 of the Constitution alleging that his imprisonment was illegal (since he had already been reprimanded for the same offence) as well as violative of the principles of natural justice. To this petition were impleaded the Speaker of the House, the House, the Chief Minister of Uttar Pradesh

and the Superintendent of the District Jail, Lucknow,

where Keshav Singh was

serving the sentence of imprisonment imposed on him by the House, 1 to 4 respectively. A Division Bench of the high court ordered that Keshav Singh bail. It also issued notices to the respondents. The very next day, the the release of Keshav Singh. Taking exception to this step taken by

as respondents

be released on court ordered the court, the

UP Assembly passed a resolution by which it was ordered that Keshav Singh be

imprisoned immediately for his act of contempt. The House also ordered that the two Hon’ble High Court Judges who admitted the writ petition as well the advocate for Keshav Singh be taken into custody of the House. Aggrieved by this order the

Keshav Singh v. The Speaker

303

two Judges approached the high court under Article 226 of the Constitution alleging that the order of the House amounted to being a contempt of court order. They also challenged the said order on grounds that it was violative of Article 211 of the Constitution. They prayed that the unconstitutional order of the House be stayed.

A Full Bench of the Allahabad High Court consisting of 28 Judges passed an order restraining the Government of UP and the Marshal of the House for enforcing the said order of the House. Subsequently, the advocate for Keshav Singh also filed a writ along similar lines as the Hor’ble Judges. The implementation of the House resolution was stayed and

notices were sent to the respondents. On the same day, the House passed a clarificatory order by which the earlier resolution against the Judges and the advocate were revoked and they were placed under an obligation to appear before the House and justify their actions.

At this juncture, realising that the House of the State Legislature and the State

judiciary were on a collision course, the President of India, invoking his powers under Article 143(1) of the Constitution, decided to refer the matter to the Supreme Court

for its advisory opinion. ISSUES

For the purposes of this case the questions referred by the President would constitute

the issues. The questions framed by the President were thus:

1. Whether, on the facts and circumstances of the case, it was competent for the Division Bench of the high court consisting of the two Hor’ble Judges to entertain and deal with the petition of Shri Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of UP for its contempt and for infringement of its privileges and to pass orders releasing Shri Keshav Singh on bail pending the disposal of his said petition. 2. Whether, on the facts and circumstances of the case, Shri Keshav Singh, by causing the petition to be presented on his behalf to the High Court of UP, his advocate, by presenting the said petition and the said two Horble Judges by entertaining and dealing with the said petition and ordering the release of Shri Keshav Singh on bail pending disposal of the said petition, committed contempt

of the Legislative Assembly of UP. 3. Whether, on the facts and circumstances of the case, it was competent for the Legislative Assembly of UP to direct the production of the said two Horble Judges and the advocate before it in custody or to call for their explanation for its contempt. 4. Whether, on the facts and circumstance of the case, it was competent for the Full Bench of the High Court of UP to entertain and deal with the petitions of the said two Hon’ble Judges and the advocate, and to pass interim orders restraining the Speaker of the Legislative Assembly of UP and other respondents to the

304

Summary of Cases

said petitions from implementing the aforesaid direction of the said Legislative

Assembly.

Whether a Judge of a high court who entertains or deals with a petition challenging any order or decision of a legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt of for infringement of its privileges and immunities or who passes any order on such petition commits

contempt of the said legislature and whether the said legislature is competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities.

DECISION . On

the facts and circumstances

of the case, it was competent

for the Lucknow

Bench of the High Court of UP, consisting of N. U. Beg and G. D. Sahgal, J. J., to entertain and deal with the petition of Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of UP for its contempt and for infringement of its privileges and to pass orders releasing Keshav Singh on bail pending the disposal of his said petition. . On the facts and circumstances of the case, Keshav Singh by causing the petition to be presented on his behalf to the High Court of UP as aforesaid, the advocate for Keshav Singh, by presenting the said petition, and the said two Horble Judges by entertaining and dealing with the said petition and ordering the release of Keshav Singh on bail pending disposal of the said petition, did not commit contempt of the Legislative Assembly of UP. . On the facts and circumstances of the case, it was not competent for the Legislative Assembly of UP to direct the production of the said two Hon’ble Judges and the advocate before it in custody or to call for their explanation for its contempt. . On the facts and circumstances of the case, it was competent for the Full Bench of the High Court of UP to entertain and deal with the petitions of the said two Honble Judges and the advocate, and to pass interim orders restraining the

Speaker of the Legislative Assembly of UP and other respondents to the said Legislative Assembly.

. It was also observed that the answer is confined to cases in relation to contempt alleged to have been committed by a citizen who is not a Member of the House outside the four walls of the legislative chamber. A Judge of a high court who

entertains or deals with petitions challenging any order or decision of a legislature imposing any penalty on the petitioner or issuing any process against the petitioner

for its contempt, or for infringement of its privileges and immunities, or who passes any order on such petition, does not commit contempt of the said legislature; and the said legislature is not competent to take proceedings against such a Judge in the

exercise and enforcement of its powers, privileges and immunities. In this answer,

the court mentioned that it has deliberately omitted reference to infringement

Keshav Singh v. The Speaker

305

of privileges and immunities of the House, which may include privileges and immunities other than those with which we are concerned in the present reference. SUMMARY OF THE JUDGMENT After considering the above questions referred to it, the court decided that it has to give an opinion largely centring around the following three issues: 1. Is the House the sole and exclusive judge of the issue as to whether its contempt has been committed where the alleged contempt has taken place outside the four walls of the House? 2. Is the House the sole and exclusive judge of the punishment, which should be imposed on the party whom it has found to be guilty of its contempt? 3. Ifin enforcement of its decision, the House issues a general or unspeaking warrant, is the high court entitled to entertain a habeas corpus petition challenging the validity of the detention of the person sentenced by the House? The primary contention raised by the Shri H. M. Seervai, appearing for the House, was that it was a privilege of the House to punish a person for its contempt and such actions were protected by Article 194(3) from judicial review. He did not dispute that it was a well established legal position that the courts could decide the existence and extent of a privilege. But he further added that in England it has been established over the years that if the order of the House was a speaking order the court could see whether the reasons set out in the order amounted to contempt or not. But if the order was a general non-speaking order, the courts could not scrutinise it and the same should be treated as conclusive. Shri M. C. Setalvad, appearing on behalf of the Judges, argued, firstly, that this distinction between the two kinds of orders was largely a result of comity between the judiciary and Parliament and, secondly, that the House of Commons exercised this power as a part of Parliament which was the superior court in England and not as a parliamentary privilege. The situation in India is different and Article 194(3) cannot be read in isolation without considering the

effects of Article 211, Article 32 and Article 226 on the said provision. Thus, the dispute really centred round the jurisdiction of the high court to entertain a habeas corpus petition even in cases where a general or speaking warrant has been issued by the House directing the detention of the party in contempt. This ultimately led to the factual question of whether the House of Commons enjoyed a privilege which barred such judicial action in 1950. In order to decide the issue, the court had to enter into a conclusive analysis of Article 194(3) and various constitutional

provisions.

The majority decision, rendered by Gajendragadkar, J. was prompt in laying the ground rules when he said: In dealing with the effect of the provisions contained

in clause (3) of Art.

194,

wherever it appears that there is a conflict between the said provisions and the

306

Summary of Cases provisions pertaining to fundamental

rights, an attempt will have to be made

resolve the said conflict by the adoption of the rule of harmonious construction.

to

To look further, the court took support from an earlier decision of the court in M. S. M. Sharma’s case. After analysing the said case, the court arrived at the following conclusion: It is true that the power to make such a law has been conferred on the legislatures by

the first part of Art. 194(3), but when the State Legislatures purport to exercise this

power, they will undoubtedly be acting under Art. 246 read with Entry 39 of List II. The enactment of such a law cannot be said to be in exercise of a constituent power, and so, such a law will have to be treated as a law within the meaning of Art. 13. That is the view which the majority decision expressed in the case of Pandit Sharma.

It was further held:

... we do not think it would be right to read the majority decision as laying down a

general proposition that whenever there is a conflict between the provisions of the

latter part of Article 194(3) and any of the provisions of the fundamental rights

guaranteed by Part ILI, the latter must always yield to the former. The majority

decision, therefore, must be taken to have settled that Art. 19(1)(a) would not apply,

and Art. 21 would.

The natural corollary to this was: ... the power conferred on the High Court under Art. 226(1) can, in a proper case,

be exercised even against the Legislature. If an application is made to the High Court

for the issue ofa writ of habeas corpus, it would not be competent to the House raise a preliminary objection that the High Court has no jurisdiction to entertain application because the detention is by an order of the House. Art. 226(1) read itself does not seem to permit such a plea to be raised. Art. 32 which deals with

to the by the

power of this Court puts the matter on a still higher pedestal; the right to move this

Court by appropriate proceedings for the enforcement of the fundamental rights is itself a guaranteed fundamental right, and so, what we have said about Art. 226(1) is still more true about Art. 32(1).

This argument is buttressed by two other supporting articles of the Constitution.

Firstly, Article 208(1) provides that a House of the Legislature of a State may make

rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business. This provision makes it perfectly clear that if the House were to make any rules as prescribed by it, those rules would be subject to the fundamental rights guaranteed by Part III. In other words, where the House makes rules for exercising its powers under the latter part of Article 194(3), those rules must be subject to the fundamental rights of the citizens.

Secondly, Article 212(1) lays down that that the validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. Article 212(2) confers immunity on the officers and Members of the legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the

Keshav Singh v. The Speaker

307

legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Article 212(1) seems to make it possible for a citizen to call in question, in the appropriate court of law, the validity of any proceedings inside

the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. That again is another indication which may afford some assistance in construing the scope and extent of the powers conferred on the House by Article 194(3).

The next question to be answered was whether the Judge ofa court could be hauled

up for contempt of the House and for breach of privilege. The relevant constitutional provision was Article 211 which prohibited discussions in a State Legislature regarding the conduct of a Supreme Court or high court Judge acting within the contours of his duty. Shri Seervai tried to argue that this restriction was merely directory and not

mandatory. The court held:

The latter part of Art. 194(3) makes no such exception, and so, it would be logical to hold that whereas a speech made in contravention of Art. 211 is protected from action in a court by Art. 194(2), no such exception or protections is provided in prescribing the powers and privileges of the House under the latter part of Art. 194(3). Ifa Judge

in the discharge of his duties passes an order or makes observations which in the

opinion of the House amount to contempt, and the House proceeds to take action

against the Judge in that behalf, such action on the part of the House cannot be protected or justified by any specific provision made by the latter part of Art. 194(3). In our opinion, the omission to make any such provision when contrasted with the actual provision made by Art. 194(2) is not without significance. In other words,

this contrast leads to the inference that Constitution-makers took the view that the utmost that can be done to assure absolute freedom of speech and expression inside the legislative chamber, would be to make a provision in Art. 194(2); and that is

about all.

It was further concluded:

Therefore, the position is that the conduct of a Judge in relation to the discharge of his duties cannot legitimately be discussed inside the House, though if it is, no remedy lies in a court of law. But such conduct cannot be made the subject-matter

of any proceedings under the latter part of Art.

194(3). If this were not the true

position, Art. 211 would amount to a meaningless declaration and that clearly could not have been the intention of the Constitution.

The same logic was extended to Keshav Singh and his advocate. It is hardly necessary to emphasise that in the enforcement of fundamental rights

guaranteed to the citizens the legal profession plays a very important and vital role, and

so, just as the right of the Judicature to deal with matters brought before them under

308

Summary of Cases

Art. 226 or Art. 32 cannot be subjected to the powers and privileges of the House

under Art. 194(3), so the rights of the citizens to move the Judicature and the rights of the advocates to assist that process must remain uncontrolled by Article 194(3).

That is one integrated scheme for enforcing the fundamental rights and for sustaining

the rule of law in this country. Therefore, our conclusion is that the particular right which the House claims to be an integral part of its power or privilege is inconsistent

with the material provisions of the Constitution and cannot be deemed to have been included under the latter part of Art. 194(3).

The court thus agreed with Shri Setalvad’s contention that whatever may be the extent of the powers and privileges conferred on the House by the latter part of Article 194(3), the power to take action against a Judge for contempt alleged to have been committed by him, by his act in the discharge of his duties cannot be included

in them. Shri Seervai now argued that even if this proposition of opposing counsel was accepted, it was still not open to Shri Setalvad to contend that the English House of Commons

did not possess the power/privilege to protect non-speaking general

warrants/orders from judicial scrutiny. This brought the court back to the familiar factual question of whether such a privilege existed in England in 1950 or not. The court undertook an extensive analysis of English history in general, of authorities on parliamentary procedure such as May, and a multitude of judicial pronouncements given by English court. Thereafter, it reached the conclusion that in England, the House of Commons existed as a part of the undivided Parliament, which

was at one point of time the highest court of the land. Later, the House of Commons, just like the House of Lords, discharged various judicial functions. The House of Commons did have the power to issue general non-speaking warrants against persons who had committed contempt of its privileges; but this power/privilege was the result of an agreement or comity between the courts and the House. This comity was

displayed owing to the fact that the House of Commons was a superior court in many ways and just like orders of courts equally placed or superior to ones jurisdiction were left alone by courts, these general warrants also were to be untouched. Distinguishing the English House of Commons from the Indian legislatures it was held that: The House, and indeed al] the Legislative Assemblies in India never discharged any judicial function and constitutional background does not support the claim that they

can be regarded as Courts of Record in any sense. If that be so, the very basis on

which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior Court of Record,

is absent in the present case, and so, it would be unreasonable to contend that the relevant power to claim a conclusive character for the general warrant which the House of Commons, by agreement, is deemed to possess, is vested in the House. On this view of the matter, the claim made by the House must be rejected.

Thereafter, the court took a second line of argument. It said that even assuming that such a privilege was possessed by the House of Commons and thus by the Indian

Keshav Singh v. The Speaker

309

legislatures, it would not be possible for a privilege claimed under Article 194(3) to circumvent Articles 32 and 226 of the Constitution. Though the court refused to comment on the applicability of all fundamental rights to the analysis of Article 194(3), drawing support from M. S. M. Sharma’s case, it declared that Article 21 and Article 20 (as a natural corollary to the former) were applicable. Reiterating its stand in the earlier part of this decision regarding the maintainability of writ petitions it was held: If in a given case, the allegation made by the citizen is that he has been deprived of his liberty not in accordance with law, but for capricious or mala fide reasons, this Court will have to examine the validity of the said contention, and it would be no answer in such a case to say that the warrant issued against the citizen is a general warrant and a general warrant must stop all further judicial inquiry and scrutiny. In our opinion, therefore, the impact of the fundamental constitutional right conferred on Indian citizens by Art. 32 on the construction of the latter part of Art. 194(3) is decisively against the view that a power or privilege can be claimed by the House though it may be inconsistent with Art. 21. It was further held:

If the power of the High Courts under Art. 226 and the authority of this Court under

Art. 32 are not subject to any exceptions, then it would be futile to contend that a

citizen cannot move the High Courts or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf; otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless.

Shri Seervai’s final contention was that the court could not have passed the interim order granting bail to the petitioners. The court said that if Article 226 confers jurisdiction on the court to deal with the validity of the order of commitment even though the commitment has been ordered by the House, how it could be said that the court had no jurisdiction to make an interim order in such proceedings? On the above considerations, Gajendragadkar, J., speaking for the majority, gave the opinion provided above. Minority opinion (Per Sarkar. J) Sarkar, J. identified the issues at hand very succinctly. The main question in this reference is whether the Assembly has the privilege of committing a person for contempt by a general warrant, that is, without stating the facts which constituted the contempt, and if it does so, have the courts of law the power to examine the legality of such a committal? In other words, if there is such a privilege, does it take precedence over the fundamental rights of the detained citizen?

The minority opinion though held that the power of the Assembly to commit for contempt was indeed a privilege and the same was possessed by the House of

310

Summary of Cases

Commons. The next question to be considered was whether such a committal through

a non-speaking warrant was beyond judicial review. For this purpose Sarkar, J. had to go back to the issue as to whether the above noted power of committal was exercised by the House of Commons

by virtue of it being a superior court or because it was

accepted as a parliamentary privilege of the House. After analysis of various English authors and cases, he held that it would at least be hazardous to hold that the House of Commons was a court of record. If it was not, it cannot be said to have possessed the power to commit for its contempt by a general warrant as a court of record. The second line of argument raised by the petitioners (original) was that if it is held that such privilege was possessed by the House of Commons not as a superior court, then it was also to be understood that the said privilege was the result of comity

between the House and the courts. It was held that the authorities and learned authors did not support the said view. Comity could only have existed between courts. Since

the House of Commons was not a court, such comity cannot be assumed. Also, the courts cannot concede a case. They do not make law, but only interpret the same.

Thus, the minority came to the conclusion that the right to commit for contempt by a general warrant with the consequent deprivation of jurisdiction of the courts of law

to enquire into that committal is a privilege of the House of Commons. That privilege

was, in Sarkar, J.’s view, possessed by the UP Assembly by reasons of Article 194(3) of the Constitution.

The issue to be considered after this was whether such privilege could not be interfered with even if violated the fundamental rights of the petitioners. On interpretation of M. S. M. Sharma's case it was held by the minority that privileges

could not be held to be controlled by Part III of the Constitution, In the said case, the

court arrived at a decision by harmoniously constructing both Article 19(1)(a) and Article 194(3), and according to the minority such an approach was mandated here

as well. If this was the case, then there could not be any justification as to why such a

rule should not be adopted for interpreting the effect of Article 21 on Article 194(3).

Also, the privileges are guaranteed by the second part of Article 194(3). Article 13 cannot strike down a constitutional provision for the reason that it takes away a fundamental right. The swathe of the powers of Article 13 is confined to laws made

by legislatures and not to a constitutional provision. It was also observed that the

decision on M. S. M. Sharma’s case was erroneous, though the court, in the exercise of its advisory jurisdiction, could not strike it down.

But the minority did not think that the Judges committed contempt of the House.

This is because their jurisdiction would only have ceased to exist once it was brought to their notice that the warrant complained of was a general non-speaking warrant. Since

this fact was not brought to the notice of the court at the time of admission, it was not contempt. As far as contempt by the petitioner and the advocate was concerned, the minority held that though they would be legally liable for contempt if the House thought so, on the facts of the case it appeared that neither the petitioner nor his advocate was aware that the order was a general non-speaking warrant. Therefore,

in the present case they were not liable for contempt. The same justification applied

Keshav Singh v. The Speaker

311

to the Full Bench of the high court which heard the petitions of the Judges and the advocate. Again, it was clarified that the House would be acting within its powers while asking for an explanation from the Judges and the advocate. The question was answered in the affirmative. Though Sarkar, J. held that the Judges would be committing contempt

of the House if it struck down a resolution of the House, he considered it necessary to see if the Judges were provided immunity from such contempt proceedings by the Constitution. But the Hon’ble Judge refused to go into the merits of this argument, as in his opinion this opinion could be given without going into those questions regarding the immunity provided by Article 211.

Case 44

Kihota Hollohan v. Zachilhu and Ors AIR 1993 SC 412: JT 1992 (1) SC 600: 1992 (1) SCALE 338: 1992 Supp (2) SCC 651: [1992] 1 SCR 686: MANU/SC/0101/1993 Latir MOHAN

SHARMA, M. N. VENKATACHALIAH, J. S. VERMA,

K. JAYACHANDRA REDDY AND S. C. AGRAWAL, J. J. Date of Judgment: 18.02.1992

FACTS-IN-BRIEF

Shri Kihota Hollohan filed five writ petitions under the Tenth Schedule of the Constitution against five MLAs for having voluntarily given up membership of their original political party. These Members had resigned individually for causing a split in the original party and hence they did not constitute one-third of the existing strength in the House. The said five Members were accordingly disqualified from the membership of the Legislative Assembly by the Speaker. This decision of the Speaker was challenged by way of a writ petition by Shri Zachilhu who had been disqualified from the party. The constitutional validity of the Tenth Schedule of the Constitution introduced by the Constitution (Fifty-second Amendment) Act, 1985, was challenged in the writ petition. The present two cases (Transfer Petn. [Civil] No. 40 of 1991

and Writ Petition No. 17 of 1991) were amongst a batch of writ petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other similar and connected matters raising common questions, which were already heard together by the court. As important questions of law and Constitution were involved, the matter was referred to the five-Judge Constitution Bench for considering the matter. ISSUES

1. Whether paragraph 2 of the Tenth Schedule is valid? Whether the provision of this paragraph violates the right or freedom under Articles 105 and 194 of the Constitution?

Kihota Hollohan v. Zachilhu and Ors

313

2. Whether paragraph 7 is constitutionally valid as it bars judicial review under

the Constitution of India, and whether the (Fifty-second) Amendment requires ratification in accordance with the proviso to sub-Article (2) of Article 368?

3. Whether paragraph 6(1) of the Tenth Schedule is valid? Whether it excludes judicial review under Articles 136, 226 and 227 insofar as the infirmities are based on unconstitutionality?

4. Whether the deeming provision in paragraph 6(2) of the Tenth Schedule attracts any immunity under Articles 122(1) and 212(1) of the Constitution?

5. What is the meaning and scope of the term ‘any direction in paragraph 2(1)(b) in the Tenth Schedule? DECISION

Paragraph 2 of the Tenth Schedule is valid. Its provisions do not suffer from the vice of subverting the democratic rights of elected Members of Parliament and legislatures of the States. It does not violate their conscience. The provisions of the paragraph do not violate any right or freedom under Articles 105 and 194 of the Constitution.

¢ Having regard to the legislative history and evolution of the principles underlying the Constitution (Fifty-second Amendment) Act, 1985, insofar as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of paragraph 7 thereof, in terms and in effect, brings about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to

sub-Article (2) of Article 368. ¢ Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to

the decision of the Speakers/Chairmen, is valid. But this does not exclude judicial review under Articles 136, 226 and 227 insofar as the infirmities are based on unconstitutionality. The concept of statutory finality embodied in paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violation of constitutional mandate, malafides, non-compliance with rules of natural justice and perversity,

are concerned.

¢ The deeming provision in paragraph 6(2) of the Tenth Schedule attracts immunity under Articles 122(1) and 212(1) of the Constitution as understood and explained

in Keshav Singh’s case to protect the validity of proceedings from mere irregularities of procedure. The deeming provisions having regard to the words ‘be deemed to be proceedings in the Parliament’ confines the scope of the fiction accordingly. ° Words ‘any direction’ in paragraph 2(1)(b) require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule. ° For this purpose, the direction given by the political party to a Member belonging

to it, the violation of which may entail disqualification under paragraph 2(1)(b),

314

Summary of Cases

would have to be limited to a vote on motion of confidence or no-confidence in the government or where the motion under consideration relates to a party on the basis of which it approached the electorate. The voting or abstinence from voting by a Member against the direction by the political party would amount to disapproval of the programme on the basis on which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate. MINORITY VIEW

Paragraph 7 of the Tenth Schedule, which seeks to make a change in Article 136 which is part of Chapter IV of Part V and Articles 226 and 227 of the Constitution, which

again form part of Chapter V of Part VI of the Constitution, has not been enacted by

incorporation in a bill seeking to make the constitutional amendment in the manner prescribed by Clause (2) read with the proviso therein of Article 368. Paragraph 7 of the Tenth Schedule is, therefore, unconstitutional and to that extent at least the Constitution does not stand amended in accordance with the bill seeking to make the constitutional amendment. It is not paragraph 7 alone, but the entire Constitution (Fifty-second Amendment Act, 1985) itself, which is rendered unconstitutional being an abortive attempt to so amend the Constitution. It is the entire bill and not merely paragraph 7 of the Tenth Schedule therein which required prior ratification by the State Legislatures before its presentation to the President for his assent, it being a joint exercise by Parliament and

State Legislatures. It cannot be doubted in view of the clear language of sub-Para (2)

of paragraph 6 that it relates to Clause (1) of both Articles 122 and 212 and the legal fiction cannot therefore be extended beyond the limits of the express words used in the fiction. In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such disputes with no provision for any appeal or revision against the Speaker's decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution since the Speaker cannot be treated as an authority contemplated for being entrusted with this function

by the basic postulates of the Constitution, notwithstanding the great dignity and attribute of impartiality attached to that office.

SUMMARY OF THE JUDGMENT The constitutional validity of the Constitution (Fifty-second Amendment) Act itself was challenged before the Supreme Court in this case. The argument was that paragraph 7 brings about a change in the provisions of Chapter IV of Part V and Chapter V of Part VI of the Constitution and that the amending bill falls within proviso to Article 368(2).

Kihota Hollohan v. Zachilhu and Ors

315

The argument was placed at two levels—firstly, with regard to the construction of paragraph 7, and secondly, with reference to the ratification of the constitutional provision. It was urged that paragraph 7, if properly construed, does not seek to oust the jurisdiction of courts under Article 136, 226 and 227 but merely prevents an interlocutory intervention or a quia-time action. Shri Sibal urged that that the words ‘in respect of any matters connected with the disqualification of a Member’ seek to bar jurisdiction only till the matter is finally decided by the Speaker or Chairman, as the case may be, and does not extend beyond that stage and that in dealing with the dimensions of exclusion of the exercise of judicial power the broad considerations are that provisions which seek to exclude courts’ jurisdiction shall be strictly construed. Rejecting the contention the court observed thus: .. the rules of construction are attracted where two or more reasonably possible

constructions are open on the language of the statute. of para 7 and having regard to the legislative evolution intent is plain and manifest. The words “no court shall of any matter connected with the disqualification of and leave no constructional options. This is reinforced anti-defection law ...

But have both on the language of the provision, the legislative have any jurisdiction in respect a member” are of wide import by the legislative history of the

The next contention was as follows: Does paragraph 7 of the Constitution (Fifty-second Amendment) Act, 1985, bring any change directly in the language of Articles 136, 226 and 227 of the Constitution, or whether paragraph 7 curtails the operations of those articles in respect of the matters falling under the Tenth Schedule. A similar question was raised in Sankari Prasad v. Union of India [AIR 1951 SC 458]. In Sankari

Prasad case, the question was whether the amendment introducing Articles 31A and 31B in the Constitution required ratification under the said proviso. Repelling this contention it was observed: It will be seen that these articles do not either in terms or in effect seek to make any

change in Article 226 or in Article 132 and 136. Article 31A aims at saving laws providing for the compulsory acquisition by the state of a certain kind of property from the operation of Article 13 and read with other relevant articles, in part III, while

articles 31B purports to validate certain specified Acts and regulations already passed,

which but for such a provision would be liable to be impugned under Article 13. It is not correct to say that the powers of High Court under Article 226 to issue writs “for the enforcement of any of the rights conferred by Part III” or this court under Articles 132 and 136 to entertain appeals from other issuing or refusing such writs are in any way affected. They remain just the same as they were before only certain class of cases has been excluded from the purview of Part III and the courts could no longer interfere, not because their power were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases.

In Sajjan Singh v. State of Rajasthan [AIR 1965 SC 845] a similar contention was

raised against the validity of the Constitution (Seventeenth Amendment) Act, 1964,

316

Summary of Cases

by which Article 31A was again amended and 44 statutes were added to the Ninth

Schedule of the Constitution. The question was whether the amendment required

ratification under proviso to Article 368. Negating the challenge to the amendment on the ground of non-ratification it was held: . thus, if the pith and substance test is applied to the amendment made by the

impugned Act, it would be clear that Parliament is seeking to amend fundamental

rights solely with the object of removing any possible obstacles in the fulfillment of the socio-economic policy in which the party in power believes ... The impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained.

As per the court, the propositions that fell for consideration in Sankari Prasad Singh's and Sajjan Singh's cases were indeed different.

There the jurisdiction and power of the Courts under Articles 136 and 226 were not sought to be taken away nor was there any change brought about in those provisions either “in terms or in effect”, since the very rights which could be adjudicated under and enforced by the Courts were themselves taken away by the Constitution. The result was that there was no area for the jurisdiction of the Courts to operate upon.

Matters are entirely different in the context of Paragraph 7. Indeed the aforesaid cases,

by necessary implication support the point urged for the petitioners. The changes in

Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need not be direct. The change could be either “in terms of or in effect”. It is not necessary

to change the language of Articles 136 and 226 of the Constitution to attract the proviso.

Whereas in the Kihota Hollohan case, the Supreme Court observed that though the amendment does not bring in any change directly in the language of Article 136, 226 and 227 of the Constitution, however, in effect, paragraph 7 curtails the operation of these articles respecting matters falling under the Tenth Schedule. There is a change in the effect in Articles 136, 226 and 227 within the meaning of Clause (b) of the proviso

to Article 368(2). Thus, since paragraph 7 attracted the provisio and ratification was made necessary the Supreme Court held: That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985 in so far as it seeks to introduce the

Tenth Schedule in the Constitution of India, the provision of paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and,

therefore, the amendment would require to be ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India.

Another question which was raised before the court was whether a statute which is void in part is to be treated void in toto, or whether it is capable to enforcement as to that part which is valid? Explaining the scheme of amendment the court held thus:

Kihota Hollohan v. Zachilhu and Ors

The Constitution provides for amendment

317

in Articles 4, 169, 368, paragraph 7

of Fifth Schedule and paragraph 21 of Sixth Schedule. Article 4 makes provisions for amendment of the First and the Fourth Schedules, Article 169 provides for amendment in the provision of the Constitution which may be necessary for abolition or creation of Legislative Councils in States, paragraph 7 of the Fifth Schedule provides for amendment of the Fifth Schedule and paragraph 21 of the Sixth Schedule provides for amendment of the Sixth Schedule. All these provisions prescribe that the said amendments can be made by a law made by Parliament which can be passed like any other law by a simple majority in the Houses of Parliament.

Article 368 confers the power to amend the rest of the provisions of the Constitution.

In sub-Article (2) of Article 368a special majority—two-thirds of the members of each House of Parliament present and voting and majority of total membership of

such House—is required to effectuate the amendments. The proviso to sub-Article (2)

of Article 368 imposes a further requirement that if any change in the provisions set out in Clauses (a) to (e) of the proviso, is intended it would then be necessary that

the amendment be ratified by the legislature of not less than one-half of the States.

Although there is no specific enumerated substantive limitation on the power in Article 368 but as arising from very limitation in the word “amend”, a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution. The amending

power under Article 368 is subject to the substantive limitation in that the basic

structure cannot be altered or the basic features of the Constitution destroyed. The

limitation requiring a special majority is a procedural one. Both these limitations

impose a fetter on the competence of Parliament to amend the Constitution and any

amendment made in disregard of these limitations would go beyond the amending power.

While examining the constitutional validity of laws the principle that is applied is that if it is possible to construe a statute so that its validity can be sustained against a

constitutional attack it should be so construed and that when part of a statute is valid and part is void, the valid part must be separated from the invalid part. This is done

by the doctrine of severability. The court reiterating the observation made in Sajjan Singh’s case observed: The main part of Article 368(2) directs that when a Bill which has been passed by the

requisite special majority by both the Houses has received the assent of the President “the Constitution shall stand amended in accordance with the terms of the Bill”. The proviso cannot have the effect of interdicting this constitutional declaration and mandate to mean that in a case where the proviso has not been complied—even the

amendments which do not fall within the ambit of the proviso also become abortive. The words “the amendment shall also require to be ratified by the legislature” indicate that what is required to be ratified by the legislatures of the States is the amendment

seeking to make the change in the provisions referred to in Clauses (a) to (e) of the

proviso. The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the

318

Summary of Cases

amendments which do not fall within its ambit ... The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable. If the provisions of the Tenth Schedule

are considered in the background of the legislative history, namely, the report of

the “Committee on Defections” as well as the earlier Bills which were moved to curb the evil of defection it would be evident that the main purpose underlying the constitutional amendment and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body-politic. The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions.

Regarding the issues of ‘finality clause’ and ‘judicial review’ the court said that the finality clause is not bar to any appeal and the word ‘final’ does not render the decision

of the Speaker immune from judicial review. The majority as well as the minority were

unanimous

as to the point that

paragraph 7 of the Tenth Schedule enacts a provision for complete exclusion of judicial

review, including the jurisdiction of the Supreme Court under Article 136 and of the high courts under Articles 226 and 227 of the Constitution, and, therefore, it makes in

terms and in effect a change in Articles 136, 226 and 227 of the Constitution, which

attracts the proviso to Clause (2) of Article 368 of the Constitution; and, therefore,

ratification by the specified number of State Legislatures before the bill was presented

to the President for his assent was necessary, in accordance therewith. The majority

view is that in the absence of such ratification by the State Legislatures, it is paragraph 7 alone of the Tenth Schedule which is unconstitutional; and it being severable from the remaining part of the Tenth Schedule, paragraph 7 alone is liable to be struck down rendering the Speaker's decision under paragraph 6 that of a judicial tribunal amenable

to judicial review by the Supreme Court and the high courts under Articles 136, 226 and 227. The minority opinion is that the effect of invalidity of paragraph 7 of the Tenth Schedule is to invalidate the entire Constitution (Fifty-Second Amendment) Act, 1985, which inserted the Tenth Schedule since the President’s assent to the bill without prior ratification by the State Legislatures is non est. The minority view also

is that paragraph 7 is not severable from the remaining part of the Tenth Schedule

and the Speaker not being an independent adjudicatory authority for this purpose as contemplated by a basic feature of democracy, the remaining part of the Tenth

Schedule is in excess of the amending powers being violative of a basic feature of the Constitution. In the minority opinion, we have held that the entire Constitution

(Fifty-Second Amendment) Act, 1985, is unconstitutional and an abortive attempt to make the constitutional amendment indicated therein.

Kihota Hollohan v. Zachilhu and Ors

319

The conclusions in the minority opinion on the various constitutional issues as

given by S. Verma, J., are as follows: 1. Paragraph 7 of the Tenth Schedule,

in clear terms and in effect, excludes the jurisdiction of all courts, including the Supreme Court under Article 136 and the high courts under Articles 226 and 227, to entertain any challenge to the decision

under paragraph 6 on any ground even of illegality or perversity, not only at an interim stage, but also after the final decision on the question of disqualification on the ground of defection. Paragraph 7 of the Tenth Schedule, therefore, in terms and in effect, makes a change in Article 136 in Chapter IV of Part V; and Articles 226 and 227 in Chapter V of Part VI of the Constitution attracting the proviso to Clause (2) of Article 368. . In view of paragraph 7 in the Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985, it was required to be ratified by the legislature of not

less than one-half of the States as a condition precedent before the bill could be presented to the President for assent, in accordance with the mandatory special

procedure prescribed in the proviso to Clause (2) of Article 368 for exercise of

the constituent power. Without ratification by the specified number of State Legislatures, the stage for presenting the bill for assent of the President did not

reach and, therefore, the so-called assent of the President was non est, and did

not result in the Constitution standing amended in accordance with the terms of the bill.

. In the absence of ratification by the specified number of State Legislatures before presentation of the bill to the President for his assent, as required by the proviso to Clause (2) of Article 368, it is not merely paragraph 7, but the entire Constitution (Fifty-Second Amendment) Act, 1985, which is rendered unconstitutional, since the constituent power was not exercised as prescribed in Article 368, and therefore, the Constitution did not stand amended in accordance with the terms of the bill

providing for the amendment. . Doctrine of Severability cannot be applied to a bill making a constitutional

amendment where any part thereof attracts the proviso to Clause (2) of Article

368.

. Doctrine of Severability is not applicable to permit striking down of paragraph 7 alone saving the remaining provisions of the bill making the constitutional amendment on the ground that paragraph 7 alone attracts the proviso to Clause (2) of Article 368. . Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty-second Amendment) Act, 1985,

the Doctrine of Severability does not apply to it.

. Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to the same, as also for

adjudication of those relating to subsequent disqualification by an independent

320

Summary of Cases

body outside the House, are essential features of the democratic system in our Constitution. Accordingly, an independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of this basic feature. The tenure of the Speaker, who is the authority in the Tenth Schedule to decide this dispute, is dependent on the continuous support of the majority in the House and, therefore, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.

. The entire Constitution (Fifty-second Amendment) Act, 1985, which inserted the Tenth Schedule together with Clause (2) in Articles 102 and 191 must be declared unconstitutional or an abortive attempt to so amend the Constitution.

10. All decisions rendered by the several Speakers under the Tenth Schedule must also

be declared nullity and liable to be ignored.

Case 45

M. Kunjukrishnan Nadar v. The Hon'ble Speaker,

Kerala Legislative Assembly, Trivandrum and Ors AIR 1964 Ker 194 M. Mapuavan NaiIr, J.

Date of Judgment: 23.01.1964

FACTS-IN-BRIEF The petitioner, Shri Kunjukrishnan Nadar, was a Member of the Kerala State Legislative Assembly from February 1960. On 23 November 1963, he wrote a letter of resignation to the Speaker to take effect from 1 December 1963. The Speaker read the letter in the

Assembly on 26 November 1963, announcing thereby the petitioner's resignation to

take effect on 1 December 1963. On 29 November 1963, the petitioner wrote another letter to the Speaker withdrawing his earlier letter of resignation dated 23 November 1963. However, a notification appeared in the Kerala Gazette on 10 December 1963

that Shri M. Kunjukrishnan Nadar has resigned his seat in the Kerala Legislative Assembly from 1 December 1963. The petitioner thus approached the court for a declaration that the Gazette Notification dated 10 December 1963 was null and void, and the petitioner still continued to be a Member of the Kerala Legislative Assembly. ISSUES

Whether acceptance of the petitioner’s resignation from the Kerala Legislative Assembly prior to effective date mentioned in resignation letter is tenable or not? DECISION

Acceptance of resignation prior to date mentioned in resignation letter is untenable. The withdrawal of the resignation letter to be effective from a future date nullifies the entrustment or deposit of the letter of resignation in the hands of the Speaker.

322

Summary of Cases

SUMMARY OF THE JUDGMENT Article 190(3) states that if a Member resigns his seat by writing under his hand addressed to the Speaker or the Chairman and his resignation is accepted by the Speaker or the Chairman ‘his seat shall thereupon become vacant’. The petitioner contended that a prospective resignation is not contemplated in Article 190(3). For a resignation to be valid it must operate in the present and not in the future. The petitioner's letter dated 23 November 1963, being expressed to take effect only on 1 December 1963, is not a letter of resignation in accordance with the provisions of Article 190(3), and must therefore be construed only as the expression of an intention to resign in future. Even if it be taken as a valid letter of resignation, it, having been withdrawn before the date it was designed to come to effect, has become

inoperative and, therefore, the seat of the petitioner in the Assembly has not become vacant. In the counter-affidavit filed on behalf of the Speaker, it was argued that for a resignation to be effective under Article 190(3) there had been communication to the

Speaker and acceptance of the resignation by the Speaker. The Speaker accepted the letter of resignation as evidenced by his initials on the letter dated 23 November 1963,

and as evidenced further by his reading out the said letter announcing the resignation of the petitioner in the Assembly on 26 November 1963. On these facts, the petitioner's resignation has taken effect and the same could not be recalled by the petitioner. The court did not agree with the contention of the petitioner that the word

‘thereupon’ in Article 190(3) must be construed as ‘immediately’ or ‘without delay or

lapse of time’. The court held that it is open to a Member of the legislature to tender

his resignation on a prior date to take effect on a subsequent date specified therein.

The letter of resignation has then to be construed as been deposited with the Speaker on the earlier date, to be given effect to only on the date specified by the Member therein. The court further stated thus: The petitioner's letter of November 23, 1963, has to be held a letter resigning his seat in the Assembly on December 1, 1963, deposited with the Speaker on November 23, 1963. It remains a mute letter till December 1, 1963, when alone it can speak with effect. On November 29, 1963, the petitioner has withdrawn that letter by writing

under his hand addressed to the Speaker himself ... It is in effect the neutralization of the latent vitality in the former letter deposited with the Speaker. The withdrawal nullifies the entrustment or deposit of the letter of resignation in the hands of the Speaker, which must thereafter be found to have become non est in the eye of law.

The absence of a specific provision for withdrawal of prospective resignation in the Constitution or the Rules is immaterial as basic principles of law and procedure must be applied wherever they are relevant ... If that letter has died out even before

it breathed effect and was become non est in law, the later letters cannot revive or resuscitate it. It then follows that there was no valid letter of resignation on the material date, viz. December 1, 1963, to be given effect to and therefore the petitioner's seat in the Assembly has not become vacant. The impugned notification issued on December

5, 1963, published in the Gazette dated December 10, 1963, is not warranted in law and has therefore to be declared null and void.

Case 46

M. S. M. Sharma v. Sri Krishna Sinha and Ors AIR 1959 SC 395: [1959] Supp1 SCR 806 S. R. Dass, C. J., B. P. Sinna, K. H. Sussa Rao, K. N. WANCHOO AND N. H. Buacwart1, J. J.

Date of Judgment: 12.12.1958

FACTS-IN-BRIEF

The petitioner, a citizen of India, was by profession a journalist and was working as the editor of Searchlight, one of the well-known English dailies. The first respondent was the Chief Minister of the State of Bihar and the Chairman of the Committee of Privileges of the Bihar Legislative Assembly. The Committee of Privileges had been impleaded as the second respondent as if it was a legal entity entitled to sue or to be sued in its name. The third respondent was the Secretary to the Bihar Legislative Assembly. In his speech made in the Bihar Legislative Assembly on 30 May 1957, in course of the general discussion on the Budget for the year 1957-58, Shri Maheshwar Prasad Narayan Sinha, a Member of that Assembly from the Congress Party, delivered what was described as ‘one of the bitterest attacks against the way the Chief Minister was conducting the administration of the State’. The Chief Minister, who also belonged

to the Congress Party, was the first respondent before the court. Shri Maheshwar

Prasad Narayan Sinha referred to the way the Chief Minister, according to him, was

being guided by the advice of a gentleman who was well understood by all to be Shri Mahesh Prasad Sinha, who was an ex-minister of Bihar and had been defeated at the last general elections. The Member

referred, as common

knowledge,

to the

activities of Shri Mahesh Prasad Sinha in the selection of ministers and the formation of the Ministry, as also to the glaring instances of encouragement of corruption by the Government by, amongst other things, the transfer of a Muslim District Engineer from Darbhanga to Muzaffarpur for exploiting that officer's influence on the Muslim voters of Muzaffarpur. Similar reference was made to the case of a District and Sessions

324

Summary of Cases

Judge who, Chief Justice ordered only Prasad Sinha. Sinha as the

notwithstanding the recommendation for his discharge made by the after a regular judicial enquiry had been held by a high court Judge, was to be transferred to another place on the intervention of Shri Mahesh The Member strongly criticised the appointment of Shri Mahesh Prasad Chairman of the Bihar State Khadi Board as having been made only to

enable him to stay in Patna where residential accommodation at Bailey Road had been procured for him. The distribution of portfolios amongst the ministers did not also

escape strictures from this Member. In its issue of 31 May 1957, Searchlight published a report of the speech of Shri Maheshwar Prasad Narayan Sinha. One Shri Nawal Kishore Sinha, a Member of the Bihar Legislative Assembly, gave notice to the Secretary, Bihar Legislative Assembly

(respondent no. 3), to raise a question of the breach of privilege of the House. The petitioner was served with notice dated 14 August 1958, issued by respondent

no. 3, the Secretary to the Bihar Legislative Assembly, calling upon the petitioner to

show cause, on or before 8 September 1958, why appropriate action should not be recommended against him for breach of privilege of the Speaker and the Assembly in respect of the offending publication. ISSUES 1. Has the House of the legislature in India the privilege, under Article 194(3) of the

Constitution, to prohibit entirely the publication of the publicly seen and heard proceedings that took place in the House or even to prohibit the publication of that part of the proceedings, which had been directed to be expunged? 2. Does the privilege of the House under Article 194(3) prevail over the fundamental right of the petitioner under Article 19(1)(a)?

DECISION In view of the judgment of the majority, the petition was dismissed.

SUMMARY OF THE JUDGMENT Finding that things had begun to move and apprehending an adverse outcome of the

enquiry to be held by the Committee of Privileges (respondent no. 2), the petitioner moved the Patna High Court under Article 226 for an appropriate writ, order or direction restraining and prohibiting the respondents from proceeding further with the enquiry referred to above. It appears that on 29 August 1958, the Article 226 petition came up for preliminary hearing and after it had been urged for a day and

a half before the high court for admission, the petitioner, on 1 September 1958, withdrew that petition allegedly ‘with a view to avail the fundamental rights granted to him under Article 32 of the Constitution’.

M. S. M. Sharma v. Sri Krishna Sinha and Ors

325

The petition under Article 32 of the Constitution was filed on 5 September 1958. The petitioner contended that the said notice and the proposed action by

the Committee of Privileges (respondent no. 2) were in violation of the petitioner's

fundamental rights to freedom of speech and expression under Article 19(1)(a) and

to the protection of his personal liberty under Article 21 and the petitioner claims by

this petition to enforce those fundamental rights. An affidavit in opposition affirmed by Shri Enayatur Rahman, the present incumbent of the office of respondent no. 3, was filed on behalf of the respondents wherein it was maintained that the report contained in the offending publication was not in accordance with the authorised report of the proceedings in the House in that it contained even those remarks, which, having been by order of the Speaker directed to be expunged, did not form part of the proceedings. It was claimed that generally speaking proceedings in the House are not in the ordinary course of business meant to be published at all and that, under no circumstances, was it permissible to publish the parts of speeches which had been directed to be expunged and consequently were not contained in the official report. Such publication is said to be a clear breach of the privilege of the Legislative Assembly, which is entitled to protect itself by calling the offender to book and, if necessary, by meting out suitable punishment to him. This claim is sought to be founded on the provisions of Clause (3) Article 194, which confers on it all the powers, privileges and immunities enjoyed by the House of Commons of British Parliament at the commencement of our Constitution.

The learned advocate for the petitioner relies upon Article 19(1)(a) and contended

that the petitioner, as a citizen of India, had the right to freedom of speech and expression and that, as an editor of a newspaper, he was entitled to all the benefits of freedom of the Press. The court observed: Prior the advent of our present Constitution, there was no constitutional or statutory enunciation of the freedom of speech of the subjects or the liberty of the Press. Even

in the famous Proclamation of Queen Victoria made in 1858 after the British power was firmly established in India, there was no reference to the freedom of speech or the

liberty of the Press, although it was announced that “none be in any wise favoured,

none molested or disquieted by reason of their Religious Faith or Observances; but

that all shall alike enjoy the equal and impartial protection of the law ...” Indeed during the British period of our history the Press as such had no higher or better rights than the individual citizen.

In Arnoldv. King Emperor ((1914) L.R. 41 I.A. 149] which was a case of an appeal by

the editor of a newspaper against his conviction for criminal libel under Section 499 of the Indian Penal Code, Lord Shaw of Dunfermline in delivering the judgment of the Privy Council made the following observations in page 169: Their Lordships regret to find that there appeared on the one side in this case the time-worn fallacy that some kind of privilege attaches to the profession of the Press as distinguished from the members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in

326

Summary of Cases general may go, so also may the journalist, but, apart from statute law, his privilege

is no other and no higher. The responsibilities which attach to his power in the

dissemination of printed matter may, and in the case of a conscientious journalist

do, make him more careful; but the range of his assertions, his criticisms, or his

comments, is as wide as, and no wider than, that of any other subject. No privilege

attaches to his position.

Then came our Constitution on 26 January 1950. The relevant portions of Article 19, as it now stands and which are relied on, are as follows: 19(1) All citizens shall have the right(a) to freedom of speech and expression; POMPE

S Coa a eH EH DERE EOE

CoO em OR HH HO EEE EEE EEE

EHH

MEER EOE

ESSEC

EERE

RHEE

TEED ODEO ESO

EHO OH ESEH EERE

EHO

EEHO EES

EO HEHE ED ESDED

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause

in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

It will be noticed that this article guarantees to all citizens freedom of speech and expression, but does not specifically or separately provide for liberty of the Press. It

has, however, been held that the liberty of the Press is implicit in the freedom of

speech and expression which is conferred on a citizen. Thus, in Romesh Thappar v. State of Madras ((1950) S.C.R. 594] this court has held that freedom of speech and

expression includes the freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. In Brijbhushan v. The State of Delhi ((1950) S.C.R. 605]

it has been laid down by this court that the imposition of pre-censorship on a journal is a restriction on the liberty of the Press which is an essential part of the right to

freedom of speech and expression declared by Article 19(1)(a). To the like effect are the

observations of Bhagwati, J., who, in delivering the unanimous judgment of this court in Express Newspapers Ltd. v. Union of India ((1959) S.C.R. 12] said, on page 118, that freedom of speech and expression includes within its scope the freedom of the Press. In short, as regards citizens running a newspaper, the position under our Constitution

is the same as it was when the Judicial Committee decided the case of Arnold v. The

King Emperor [(1914) L.R. 41 IA. 149] and as regards non-citizens, the position may

even be worse. The petitioner claimed that as a citizen and an editor of a newspaper he had the absolute right, subject, of course, to any law that may be protected by Clause (2) of Article 19 to publish a true and faithful report of the publicly heard and seen

proceedings of Parliament or any State Legislature including portions of speeches directed to be expunged along with a note that that portion had been directed to be so expunged.

M. S. M. Sharma v. Sri Krishna Sinha and Ors

327

The respondents, however, denied that the petitioner had the absolute right broadly formulated as hereinbefore mentioned. They urged, inter alia, that under

Article 194(3), Parliament and the State Legislatures ‘have the powers, privileges and immunities enjoyed by the House of Commons of British Parliament and those powers, privileges and immunities prevail over the freedom of speech and expression conferred on citizens under Article 19(1)(a)’.

The court was of the view that “The House of Commons had at the commencement of our Constitution the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that take place within the House. A fortiori the House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate or garbled version of such debates or proceedings’. As to the second issue, assuming that the petitioner, as a citizen and an editor of a newspaper, has under Article 19(1)(a) the fundamental right to publish a true and

faithful report of the debates or proceedings that take place in the Legislative Assembly of Bihar, and granting that that Assembly under Article 194(3) has all the powers,

privileges and immunities of the House of Commons which include, amongst others,

the right to prohibit the publication of any report of the debates or proceedings, whose right is to prevail? The learned advocate for the petitioner contends that the powers, privileges

and

immunities

of the Legislative Assembly

under Article

194(3)

must give way

to the fundamental right of the petitioner under Article 19(1)(a). In other words, Article 194(3), according to him, is subject to Article 19(1)(a). The court was of the view that if the intention of Clause (1) of Article 194 was

only to indicate that it was an abridgement of the freedom of speech which would have been available to a member of the Legislature as a citizen under Article 19(1)(a), then it would have been easier to say in Clause (1) that the freedom of speech conferred

by Article 19(1)(a), when exercised in the Legislature of a State, would, in addition to

the restrictions permissible by law under Clause (2) of that article, be further subject to the provisions of the Constitution and the rules and standing orders regulating procedure of that legislature. There would have been no necessity for conferring anew the freedom of speech as the words ‘there shall be freedom of speech in the Legislature of every State’ obviously intend to do. Subba Rao, J., writing a separate judgment observed thus: “The rule may also be stated in a different way: If two articles appear to be in conflict, every attempt should be made to reconcile them or to make them to co-exist before excluding or rejecting the operation of one’. He elaborated his stand thus: Article 194(3) of the Constitution, with which we are concerned, does not in express terms make that clause subject to the provisions of the Constitution or to those of Article 19. Article 194 has three clauses. The first clause declares that there shall be freedom of speech in the Legislature of every State and that freedom is expressly made subject to the provisions of the Constitution and to the rules and the standing orders regulating the procedure of the Legislature. Clause (2) gives protection to

members of the Legislature of a State from any liability to any proceedings in any

328

Summary of Cases

court in respect of anything said or any vote given by him in the Legislature or any committee thereof and to every person in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or procedure. The third clause, with which we are now directly concerned, confers upon a House of the Legislature of a State and of the members and the committees thereof certain powers, privileges and immunities. It is in two parts. The first part says that 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 the second part declares that until so defined, they shall be those of the House of Commons of the Parliament

of the United Kingdom and its members and committees, at the commencement

of the Constitution. The question is whether this clause confers on the Legislature powers, privileges and immunities so as to infringe the fundamental right of a citizen

under Article 19(1)(a) of the Constitution. The first thing to be noticed is that while Article 19(1)(a) of the Constitution deals with the freedom of speech and expression of a citizen, Article 194(1) declares that there shall be freedom of speech in the

Legislature of every State. While Article 19(1) is general in terms and is subject only

to reasonable restrictions made under clause (2) of the said Article, Article 194(1)

makes the freedom of speech subject to the provisions of the Constitution and rules

and standing orders regulating the procedure of the Legislature. Clause (2) flows from clause (1) and it affords protection for liability to any proceedings in a Court for persons in respect of the acts mentioned therein. But these two provisions do not touch the fundamental right of a citizen to publish proceedings which he is entitled to do under Article 19(1) of the Constitution. That is dealt with by clause (3). That

clause provides for powers, privileges and immunities of a House of the Legislature of a State and of the members and the committees of a House, other than those

specified in clause (2). It is not expressly made subject to the provisions of the

Constitution. I find it difficult to read in that clause the opening words of clause (1), viz., “subject to the provisions of this Constitution”, for two reasons: (i) clause (3) deals with a subject wider in scope than clause (1) and therefore did not flow from

clause (1); and (ii) grammatically it is not possible to import the opening words of

clause (1) into clause (3). Therefore, I shall proceed on the basis that clause (3) is

not expressly made subject to Article 19 or expressly made independent of other Articles of the Constitution. We must, therefore, scrutinize the provisions of that clause in the context of the other provisions of the Constitution to ascertain whether by necessary implication it excludes the operation of Article 19. The first thing to be noticed in clause (3) of Article 194 is that the Constitution declares that the powers,

privileges and immunities of a House of Legislature of a State and of the members and committees of a House of such Legislature are such as defined by the Legislature by law. In the second part, as a transitory measure, it directs that till they are so defined, they shall be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees, at the commencement of the Constitution. I find it impossible to accept the contention that the second part is not a transitory provision; for, the said argument is in the teeth of the express words used therein. It is inconceivable that the Constituent Assembly, having framed the Constitution covering various fields of activity in minute detail, should have thought

M. S. M. Sharma v. Sri Krishna Sinha and Ors

fit to leave the privileges of the Legislatures in such a vague and nebulous position compelling the Legislatures to ascertain the content of their privileges from those obtaining in the House of Commons at the commencement of the Constitution. The privilege of the House of Commons is an organic growth. Sometimes a particular rule persists in the record but falls into disuse in practice. Privileges, just like other branches of common law, are results of compromise depending upon the particular circumstances of a given situation. How difficult it is to ascertain the privilege of the House of Commons and its content and extent in a given case is illustrated by this case.

329

Case 47

Madhu Parumala v. The Speaker, Kerala Legislative Assembly AIR 2007 Ker 18: 2006 (3) KLT 558 K. S. RADHAKRISHNAN AND V. RAMKUMaAR, J. J. Date of Judgment: 21.07.2006

FACTS-IN-BRIEF

Election to the Twelfth Kerala State Legislative Assembly was held in April-May 2006

and results were declared on 12 May 2006. One hundred and thirty-nine elected

Members of the Legislative Assembly participated in the oath or afhirmation ceremony conducted by the pro-term Speaker who took oath from the Governor of the State. Respondents 6 to 16 were elected and they took oath in the name of Allah. Later, Secretary, Kerala Legislative Assembly, permitted them along with others to enter the Kerala Legislative Assembly. ISSUE

Whether the oath taken in the name of Allah as per Article 188 of the Constitution

read with Schedule III thereto is unconstitutional, and thereby attracts penalty under

Article 193 of the Constitution of India? DECISION

The oath taken in the name of Allah under Article 188 of the Constitution read with Schedule III thereto is constitutional. The word God in Form VII B of Schedule III

is a relative expression as far as the person who takes an oath. The word ‘God’ in Form VII B takes in Allah also. Allah is a synonym for God.

Madhu Parumala v. The Speaker, Kerala Legislative Assembly

331

SUMMARY OF THE JUDGMENT The petitioner approached the court seeking a declaration that the Members returned elected from the respective constituencies have to make and subscribe an oath in the name of God or a solemn affirmation, in compliance with Article 188 and in the form prescribed in the Schedule IIT to the Constitution of India, that the oath taken by respondents 6 to 16 in the name of Allah is unconstitutional, and therefore they are not entitled to participate in the conduct of the business of the House and that they

are not entitled to get salary, allowances and other benefits and that their conduct

attracts penalty under Article 193 of the Constitution of India. The petitioner, therefore, sought for a writ of mandamus directing respondents 1 and 2 to permit entry into the Kerala Legislative Assembly of only those candidates who took oath in the name of God or solemn affirmation in compliance with Article 188 read with Schedule III. Counsel for the petitioner submitted that respondents 6 to 16 are bound to take an oath in Form VIIB set out in Schedule III to the Constitution of India, which provides the manner in which an oath or affirmation is to be taken and that the expression ‘God’ used in the form is not confined to Allah alone but takes in God in all its manifestation. Respondent’s counsel contended that the petition is not maintainable and submitted that the issue has to be initially raised before the Speaker. Counsel submitted that the expression ‘God’ used in Schedule III refers to the God in which the person who takes the oath believes. Counsel submitted that provisions have been substantially complied with by respondents 6 to 16 and there is no violation of Article 193 entailing penal consequences.

The court after referring to Articles 188 and 210 held thus:

The Members may make oath or affirmation in any of the 15 languages specified in the Eighth Schedule to the Constitution. It is not imperative that elected candidate should take oath in the form prescribed in English but he can do it in his mother tongue. Respondents 6 to 16 have taken oath in their mother tongue, Malayalam. Muslim community when use their mother tongue use the word “Allah” for “God”, though the word “Allah” is of Arabic origin. “Allah” as such is an Arabic word.

While interpreting the word ‘God’ the court observed thus: The word God in Form VIIB of the Third Schedule is a relative expression as far as the person who takes oath. The word God used in Form VIIB is not in general term but takes in God in its restricted term particularly to the person who takes the oath.

An elected member is expected to swear in the name of God in which he and not his electorate believe. Then only the purpose and object of Article 188 would be achieved. The word “God” in Form VII B takes in Allah also. Allah is a synonym for God ... Oath taking, in our view, is purely personal and its purpose is to give sanctity to the pledge by which the oath-taker binds himself. What is important is not whether a person swears in the name of God or by way of solemn affirmation but whether he

has affirmed that he would bear true faith and allegiance to the Constitution and

332

Summary of Cases whether he has afirmed that he would uphold the sovereignty and integrity of India

and whether he has affirmed that he would faithfully discharge the duty of the office upon which he is about to enter. To insist that a person who takes oath in the name

of God should take the oath not only in the name of God in whom he believes, but

also in the names of the Gods in whom the members of the constituency believe is

clearly illegal and unconstitutional.

The court, while referring to Articles 25 and 26, observed that every person has a fundamental right under the Constitution to entertain such religious belief as may be approved of by his judgment or conscience and to exhibit his beliefs and ideas in such overt manner as are enjoined or sanctioned by his religion and further to propagate his religious views.

Respecting the religious beliefs of the Members, the court said that when a person belonging to the Muslim community takes oath in the name of Allah he is not violating any constitutional provisions. The Constitution permits him/her to take oath in the name of God. Counsel for the petitioner also submitted that the elected Member is the representative of each and every voter of the constituency consisting of believers of

various religions and that the elected Member has to take oath representing the interest

of all the members of the constituency. Counsel also submitted that by taking oath in the name of Allah, elected candidates are not respecting the sentiments of voters of the constituency, which they represent. In reply to this contention, the court held that when a person takes oath as per

Form VII B of the Third Schedule to the Constitution, it is purely personal and not

on behalf of the voters of the constituency. We are, therefore, unable to agree with

the reasoning that the prescription of God that we get in the form is general and not personal because the constituency consists of not only believers in God, but also atheists. The court referred to the apex court’s decision in Viri Ram Sutaria v. Nathalal Premji Bhanvadia in which the court, while dealing with the provisions of

Article 173(a) Schedule ITI Form VIIA, held that the real purpose of the oath is that

the person concerned must give an undertaking to bear true faith and allegiance to the

Constitution and uphold the sovereignty and integrity of India. The court finally held that respondents 6 to 16 have not committed any illegality in taking oath in the name of Allah and have not violated the statutory Form VII B

of Schedule III; nor violated Article 188 of the Constitution of India. Consequently,

imposition of penalty under Article 193 of the Constitution does not arise.

Case 48

Madbukar Jetly v. Union of India and Ors (1997) 11 SCC 111 A. M. AHMapI, C. J., Sujata V. MANOHAR AND K. VENKATASWAMI, J. J. Date of Judgment: 06.01.1997

F ACTS-IN-BRIEF

This is an order passed by the Supreme Court of India without discussing the facts. The court has entirely based its decision in its earlier judgment of Pashupati Nath Sukul v. Nem Chandra Jain. ISSUE

Whether a person elected as a Member of a Legislative Assembly, but who has not made and subscribed the prescribed oath or affirmation as required by Article 188 of the Constitution can validly propose a person as a candidate at an election held for

filling a seat in the Rajya Sabha? DECISION

An elected Member who had not taken oath but whose name appears in the notification published under Section 73 of the Representation of the People Act, 1951, can take part in all non-legislative activities of an elected Member. SUMMARY OF THE JUDGMENT The court observed that in Pashupati case it was held that an elected Member who had

not taken oath but whose name appears in the notification published under Section 73

334

Summary of Cases

of the act can take part in all non-legislative activities of an elected Member and can

also exercise his right to vote. And this conclusion is made because the election to the

Rajya Sabha does not form part of the legislative proceedings of the House carried on at its meeting. Nor is the vote cast at such an election a vote given in the House on any issue arising before the House.

Case 49

Manjit Singh v. Maharashtra Assembly 2006 (4) MhLj 834 V. G. PALSHIKAR, S. RADHAKRISHNAN AND V. M. KANADE, J. J.

Date of Judgment: 04.07.2006

FACTS-IN-BRIEF

The petitioner in this case is the President of an association for bar girls in Mumbai. After the bar was imposed in Mumbai on bar girls dancing in pubs, bars and nightclubs, the petitioner allegedly made a speech at a meeting attended by a large number of bar girls, wherein he said that the ‘wives of the ministers will not be allowed to move on

the streets’. This was published by a local newspaper. A contempt motion against the petitioner was moved by the Assembly. The Privileges Committee deliberated over it, after which the petitioner was sent a show cause notice. As he was not permitted to engage an advocate, the petitioner appeared personally before the House. Evidence was taken and hearing was afforded to the petitioner. Thereafter, he was declared guilty and sentenced to ninety days of imprisonment. The said motion was challenged before the high court by the petitioner. ISSUES

1. Whether a writ petition under Article 226 of the Constitution of India challenging the decision which is taken by the House convicting a person on the ground of breach of privilege of the Assembly is maintainable? 2. Whether this court can determine the existence or otherwise of a privilege which is enjoyed by the Members of the Assembly? 3. What is the extent and scope of the power to review under Article 226 of the Constitution?

336

Summary of Cases

4, Whether this court can go into the question of the procedure which is followed in the House in respect of breach of privilege? 5. Whether any case is made out by the petitioner for interfering with the impugned

order.

DECISIONS

1. A writ petition should not be thrown out at the threshold merely because it challenges the exercise of a privilege by the House. 2. The court can look into the existence and extent of a privilege.

3. The privileges and their exercise by the House is not subject to Article 19(1)(a) of the Constitution. At the same time, it is subject to Article 21.

4. In such case the court should see if there is a violation of the provisions of Article 2 1 and also whether the action is vitiated by malafide intent.

5. When the House takes an action, it is difficult to impute malafide. 6. When the House has prescribed a procedure to try a privilege motion, the court cannot scrutinise the procedure.

7. The right to engage an advocate is subject to the discretion of the body which has the power to exercise the discretion—in this case the Speaker.

SUMMARY OF THE JUDGMENT The first two issues have already been discussed at length in the M. S. M. Sharma and Keshav Singh cases. The high court reiterated the view aired in the said two decisions and held that the high court did not have to throw out a writ petition at its threshold even if it concerned the breach of a privilege of a House. Similarly, on the second issue, it was concluded that the court could look into the existence and extent of a privilege, but nothing more. The third issue has been debated at length in Jn Re Article 143 case (Keshav Singh's

case). The court was of the opinion that Article 19(1)(a) would not bind down the exercise ofa privilege under Article 194(3). But Article 21 would still act as a bulwark

for the citizen and by the same logic even Article 20. Without going further into the controversy it was held that it would be open for the high court under its writ jurisdiction to consider and examine whether there is breach of the provisions of Article 21, which mandates that life and liberty of an individual cannot be taken away without following the procedure established by law. The high court, similarly, can also consider and examine whether the order which is passed is ex facie malafide,

or is utterly capricious. The scope and power of the high court is very limited and the high court while exercising its writ jurisdiction cannot sit in appeal over the decision

which is taken by the House and can only examine the decision within the narrow parameters mentioned above.

Manjit Singh v. Maharashtra Assembly

337

Regarding the question of whether the court could go into the procedure adopted by the House, the court said that the Assembly had framed rules under Article 208(1). The court was barred by Article 212 from going into the exercise or validity of the procedure. Since the procedure has been followed it could also not be said that there is a violation of the principles of natural justice. After having laid down the law on these aspects, which would in a way act as the ground rules, the court looked at the submissions of counsel for the petitioner. The gist of the submissions made by learned counsel for the petitioner was that there is breach of principles of natural justice on account of (i) the petitioner not being

given permission to be represented by a lawyer; (ii) the Privileges Committee did not conduct the proceedings as per the procedure which is laid down under the Evidence Act and the Code of Criminal Procedure and has also deviated from the rules which have been framed by the House and the directions which are given by the Speaker; (iii) that there was no breach of privilege inasmuch as the decision which was criticised by the petitioner was taken by the Hon’ble Home Minister Shri R. R. Patil, while exercising his Executive Function and he had merely pronounced that decision in the House and, therefore, the Members of the House would not claim a breach of privilege in respect of the criticism of executive function; (iv) that the complainant Subhash Mungantiwar was a Member of the Privileges Committee and, therefore, was the prosecutor and judge in his own case; (v) that the decision which is taken by the Privileges Committee is based on extraneous consideration and it does not pertain to the recent occurrence; and (vi) the petitioner had not made the said statement, but

had conveyed it on behalf of the bar girls through some of the Press reporters and that he had not given any interview to the reporter of daily Sakal and, therefore, he was not the author of that statement. Regarding the appointment of the advocate, the time tested principle is that in

circumstances where there is a discretion vested in some authority, giving him/her the

power to allow the appearance of an advocate or otherwise, the exercise of the discretion is non-justiciable. The strict compliance with the CrPC and the Evidence Act were not required as the procedure has already been laid down and the said procedure cannot be looked into by the courts. Mere irregularity of procedure cannot be a subject matter of judicial scrutiny. The statement made by the petitioner was seen to be intimidating to the Members and therefore was held to be violative of their freedom of speech guaranteed

under Article 194(3). This was the privilege of the House that was violated by the petitioner.

The other objections raised by the procedure were again held as procedural irregularities and the bar of Article 212 was invoked by the court. ‘The petition was accordingly dismissed.

Case 50

Mayawati v. Markandeya Chand and Ors AIR 1998 SC 3340: 1998 (5) SCALE 517: (1998) 7 SCC 517 M. M. Puncuui C. J. I., K. T. Toomas anp M. Srinrvasan, J. J.

Date of Judgment: 09.10.1998

FACTS-IN-BRIEF

Twelve MLAs of the UP Legislative Assembly who belong to the Bahujan Samaj Party (BSP) voted in favour of a motion of confidence moved by the Chief Minister of the State contrary to the whip issued by the BSP requiring all its MLAs to vote against the motion of confidence. Soon thereafter all those twelve MLAs were made ministers in the State Cabinet headed by Chief Minister Shri Kalyan Singh.

Appellant (Ms Mayawati) who is the leader of BSP legislature party complained that

the twelve MLAs who defected have incurred disqualification for membership of the Assembly. The Speaker of the Assembly, by the impugned order, exonerated the respondents from the tentacles of disqualification envisaged in the Tenth Schedule of the Constitution of India. This resulted in a special leave petition before the Supreme Court.

ISSUES 1. Whether the finding of the Speaker that a split arose in the BSP on 21 October 1997 forming a group representing a faction consisting of not less than one-third of the members of the legislature party of BSP is vitiated by perversity? 2. Whether the respondents who have defected from the BSP on the said date can escape from the consequence provided in sub-clause (a) paragraph 2(1) of the Tenth Schedule?

Mayawati v. Markandeya Chand and Ors

339

DECISION The three Justices gave three different judgments. While the Chief Justice referred the matter to a Constitutional Bench for the decision, Srinivasan, J. dismissed the appeal.

Thomas, J. held that the finding of the Speaker that a split arose in the BSP forming a group representing a faction consisting of not less than one-third of the members of the legislature party of the BSP is indeed vitiated by perversity. The corollary of it is that the twelve respondents who have defected from the BSP on the said date cannot escape from the consequence provided in sub-clause (a) paragraph 2(1) of the Tenth Schedule. He allowed the appeal declaring that the twelve respondents stand disqualified to be Members of the UP Legislative Assembly under paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India. SUMMARY OF THE JUDGMENT Senior counsel, who argued for the appellant, focused on the contention that the decision of the Speaker that on 21 October 1997 a split has arisen in the BSP. Of course, learned counsel also contended that there was a violation of the constitutional mandate, and non-compliance with rules of natural justice. But, ultimately, the stress of the attack was confined to the ground of perversity. According to counsel, no authority conferred with the jurisdiction would have come to such a conclusion on the facts of this case. In the above context it was submitted by counsel that a split can be recognised by a Speaker only if it is followed by the steps prescribed in Rule 3 of the Disqualification Rules. Learned senior counsel, who argued for some of the respondents, contended that non-compliance with the rules would not by itself establish that the split pleaded by the respondents did not take place. According to learned counsel, rules are only procedural and they cannot get the status of constitutional provisions and cannot be equated therewith. He relied on the observations of a two Judge Bench of this court in Ravi S Naik v. Union of India \MANU/SC/0366/1994] that Disqualification Rules are procedural in nature and any violation of the same would only amount to an irregularity in procedure which is immune from judicial scrutiny. Shri Ashok Desai and Shri R. K. Jain, other two learned senior counsel, who also argued for some of the remaining respondents, supported the aforesaid contention. As against the plea made

by Shri Kapil Sibal that the observation in Ravi S. Naik needed re-consideration all

other senior counsel pointed out that the two learned Judges in Ravi S. Naik have only adopted the reasoning of the Constitution Bench in Kihota Hollohan on that aspect and hence it is not liable to be disturbed. M. M. Punchi, C. J., observed that the question, however, as to whether a Member of the House has become subject to disqualification must arise for decision under paragraph 6(1) of the Tenth Schedule only on its being referred for decision

340

Summary of Cases

of the Speaker/Chairman and not on his own, whose decision shall be final. The defence against disqualification incurred on ground of defection under paragraph 2 is

separately provided in paragraph 3 to say that such disqualification is not to apply to

a case of split. Is not the cognition of the Speaker/Chairman of the occurrence of split not administrative in nature, unconnected with decision making on disqualification or is it an adjunct thereto? 7he Kihota Hollohan case is silent on this aspect. Thus, he referred the matter to the Constitution Bench for decision. Thomas, J., in his judgment, was of the view that two conditions are sine qua non for avoiding disqualification when any Member of the House voluntarily gives up membership of his original political party. First, the Member concerned should have made a claim that the split in the original political party has arisen resulting

in the constitution of a group in its legislature party representing a faction thereof. Second, such group should consist of not less than one-third of the Members of such legislature party. He further observed, ‘we will not say that Rules of Procedure are not at par with

the constitutional mandate incorporated in the Tenth Schedule of the Constitution’.

Nonetheless, the procedure prescribed in the Disqualification Rules is meant to be

followed for the purpose for which they are made. It is by virtue of the authority conferred by the Tenth Schedule that Disqualification Rules are formulated ‘for giving effect to the provisions of this Schedule’. What would have happened if the rules have not been formulated as enjoined by paragraph 8 of the Tenth Schedule? The provisions of the Tenth Schedule would remain ineffective. So the rules cannot be read in isolation from the provisions of the Tenth Schedule, instead they must be read as part of it. Of course, mere violation of a rule is not enough to constitute violation of the provisions of the Tenth Schedule. When a certain procedure is required by the rules to be adopted for giving effect to the provisions of the Constitution, the

non-adoption of the procedure cannot be sidelined altogether as a mere procedure and of no consequence. Compliance or non-compliance with the Rules of Procedure

would very much help the authorities to decide whether there was violation of the constitutional provision envisaged in the Tenth Schedule. Thus, he answered the first question in the affirmative, and the second in the negative. M. Srinivasan, J. concluded that the Speaker has found, on the basis of the records, that the appellant instructed the Members of the BSP to indulge in violence and disrupt the proceedings in the Assembly on 21 October 1997. It is also found that the allegations made by the respondents that the Members of the JBSP (Jantantrik BSP, the split group) were kept under threat by the appellant and prevented from entering Lucknow. In view of such a finding, and one which is supported by records, the discretionary jurisdiction under Article 136 of the Constitution should not be exercised in favour of the appellant. He was of the view that it has been rightly held by the Speaker that there is no material whatever to hold that the direction issued on

20 October 1997 was issued by the BSP or that the appellant was authorised by the BSP to issue such a direction. Neither before the Speaker nor before the court was any such plea even raised. He further observed that when the Tenth Schedule has expressly

Mayawati v. Markandeya Chand and Ors

34\

constituted the Speaker or the Chairman, as the case may be, to decide the question of disqualification and attach finality thereto, it is not for this court to consider the facts and decide the said question by substituting itself in the place of the Speaker. If the order of the Speaker is set aside on any of the grounds mentioned in Kihota Hollohan v. Zachilhu and Ors (MANU/SC/0101/1993],

by exercising the power of

limited judicial review, the consequential course to be adopted is to leave the matter to the Speaker to decide afresh in accordance with law.

Case 51

Naveen Chandra Gupta, Advocate v. Union of India and Ors 1999(2) AWC

1679: MANU/UP/0377/1999

M. Katyu AND R. K. S1nau, J. J. Date of Judgment: 20.04.1999

FACTS-IN-BRIEF

This writ petition relates to the voting in the Lok Sabha on the confidence motion which was rejected on 17 April 1999 by the Lok Sabha by a margin of only one vote. Several prayers have been made in this writ petition. A mandamus has been prayed for directing the respondent nos. 1 to 3 not to count the votes cast by five BSP members

or the vote of respondent no. 4, Shri Girdhar Gomango. A further prayer was that these votes be declared illegal. It has further been prayed that respondent nos 1 to 3 be directed to reconvene the meeting of the Lok Sabha and get the voting done afresh. Another prayer was for a mandamus to continue the BJP and the coalition Government headed by Shri Atal Behari Vajpayee as Prime Minister. ISSUE

Whether the question of validity of the vote cast in the Lok Sabha is beyond the scope of judicial review? DECISION In view of the specific provision in the Constitution, i.e. Article 122(1), the question

whether any vote in the Lok Sabha was invalid or not is beyond the scope of judicial review.

Naveen Chandra Gupta, Advocate v. Union of India and Ors

343

SUMMARY OF THE JUDGMENT M. Katju, J.

In our opinion, these are not matters for judicial review in view of the specific provision in Article 122(1) of the Constitution. The said Article 122(1) states:

The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

In view of this specific provision in the Constitution, the question whether any vote in the Lok Sabha was invalid or not is beyond the scope of judicial review. In this connection, reference may be made to the book Constitutional and Administrative

Law by Hood Phillips in which it is stated:

The Courts must presume that so august an Assembly as the House of Commons discharges its function lawfully and properly. They will, therefore, not take cognizance of matters arising within the walls of the House, and they will accept the interpretation put by the Commons upon a statute affecting their internal proceedings.

In The Constitutional History of Modern Britain Since 1485 by David Lindsay Keir, it has been said: The efficient transaction of business in the House also requires, as it always has, that its proceedings should be protected by Parliamentary privilege. This means that whatever is said or done in the course of its proceedings lies within its own Jurisdiction, exercised primarily by the Speaker, and is not actionable elsewhere.

Similarly, in the book Constitutional Law of England by B. W. Ridges, it is stated: Another collective right of the House is to settle its own Code of Procedure. This is such an obvious right—it has never been directly disputed—that it is unnecessary to enlarge upon it except to say that the House is not responsible to any external

authority for following the rules it lays down for itself, but may depart from them at its own discretion. This holds good even where the procedure of a House or the right of its members or officers to take part in its proceedings is dependent on statute. For

such purposes the House can practically change or practically supersede the law.

In Raj Narain v. Atmaram Govind [AIR 1954 All 319], the Allahabad High Court

observed:

It is settled law that the House of Commons is not responsible to any external authority for following the rules it lays down for itself for the transaction of its own business. It is open to the House to depart from them at its own discretion. Even where the procedure of the House or the right of the members to take part in its proceedings is dependent on statute and this is important the House is immune from scrutiny by Courts as to the manner in which it interprets them. It follows from this that for such purposes the House can practically change or supersede the law.

344

Summary of Cases

In Jaisingh v. State of Haryana [AIR 1970 P&H 379], a Full Bench of the Punjab and Haryana High Court held: The Legislative Assembly is supreme and has exclusive control and jurisdiction in all its internal affairs and is the sole Judge of the lawfulness of its own proceedings,

so that no part of its proceedings concerning the suspension of the petitioners is

justifiable in Court.

In M. S. M. Sharma v. Dr Shree Krishna Sinha {AIR 1960 SC Court held:

1186], the Supreme

The validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. No Court can go into those questions, which are within the special Jurisdiction of the Legislature itself, which has the power to conduct its own business.

The same view has been taken by the Full Bench of the Madras High Court in K. A. Mathtalagan v. P. Srinivasan [AIR 1973 Mad 371]. In Raj Narain v. Atmaram Govind (supra), Sapru, J. dealt with several English

decisions in support of the above proposition and quoted the views of various English Judges thereon.

Thus, Lord Denman

remarked, ‘Whatever is done within the walls of either

assembly must pass without question in any other place’.

Similarly, Patteson, J. observed, ‘Beyond all dispute, it is necessary that the proceedings of each House of Parliament should be entirely free and unshackled that whatever is said or done in either House should not be liable to examination elsewhere’. Sapru, J. also referred to May's Parliamentary Practice and other authorities in

support of this proposition.

The principle that what is said and done in the House cannot be questioned by the

court or other authority (except to the extent referred to in Keshav Singh’s case [AIR

1965 SC 745]) has a historical background. Upto the sixteenth century, the House of Commons was not really independent, and even up to the early seventeenth century, it often happened that the King would arrest or intimidate members of the House of Commons who spoke against the King inside the House of Commons or incurred

his displeasure in some way. On occasion, the King or his officers even entered the

House of Commons and arrested the Members who had spoken against the King or incurred his displeasure. This made freedom of speech very difficult for the Members of Parliament, and, hence, in the seventeenth century, there was a struggle between

the King and Parliament, each asserting their authority. Ultimately, Parliament won, and the principle was settled that no external authority can examine anything said or

done in the House of Commons. Thus, in Dicey’s An Introduction to the Study of the Law of the Constitution it has been said:

Naveen Chandra Gupta, Advocate v. Union of India and Ors

345

That the judicial process does not lie where Parliament has exclusive Jurisdiction has been recognised by decisions of the Courts. It is more than seventy years since Mr. Justice Stephen in Bradlaugh v. Gossett, (1884) 12 QBD 271, examining the area of judicial control over the matters relating to the internal procedure of the House of Commons, recognized that its privilege of regulating its own internal proceedings invested it with a judicial character. No Court today would seriously challenge that.

Matters concerning the proceedings within either House are to be discussed and

adjudged in that House and not elsewhere.

In light of the above discussion, we are of the view that the prayer made in this petition is not a matter for judicial review. The Constitution strikes a delicate balance between matters pertaining to the legislature, executive and the judiciary, and the court should exercise self-restraint in matters outside its jurisdiction; otherwise the

balance will be upset.

In view of the above, this petition is dismissed.

Case 52

Navjot Singh Sidhu v. State of Punjab AIR 2007 SC 1003 G. P. MarHur AND R. V. RAVEENDRAN, J. J.

Date of Judgment: 23.01.2007

FACTS-IN-BRIEF

The appellant has been convicted under Section 304, Part II, of the Indian Penal Code (IPC) and has been sentenced to three years Rigorous Imprisonment and a

fine of

Rs 1 lakh by the high court. The appellant moved an application for suspending the order of conviction passed against him by the high court. The appellant was a sitting Member of Parliament. Immediately after the pronouncement of judgment by the high court, he resigned from the membership of the Lok Sabha. It is stated in the

application before the court that for maintaining probity and moral values in public life he resigned from the membership of the Lok Sabha after his conviction. However,

he wants to remain in public life and, therefore, wants to contest the election again and face the electorate in the changed scenario. The reason for seeking a stay or suspension

of order of conviction arises on account of Section 8(3) of the Representation of the People Act, 1951, by operation of which he has incurred a disqualification for being

chosen as, and for being, a Member of either House of Parliament. ISSUE

Whether the order of conviction can be suspended or stayed in order to enable the appellant to contest the election, who is otherwise disqualified on account of Section 8(3) of the Representation of the People Act, 1951? DECISION

The Supreme Court held that the application moved by the appellant deserved to be allowed.

Navjot Singh Sidhu v. State of Punjab

347

SUMMARY OF THE JUDGMENT By virtue of Sub-section (3) of Section 8 of the act, the appellant incurred the disqualification as he has been sentenced to three years Rigorous Imprisonment. Sub-section (4) of Section 8 provides that if on the date of the conviction, a person is a Member of Parliament then notwithstanding anything in Sub-section

(3), the

disqualification mentioned therein shall not take effect until three months have elapsed from the date of order of conviction and if within that period an appeal is brought in respect of the conviction or sentence, until that appeal or application is disposed of by the court. Since the appellant was a sitting Member of Parliament, e would not have incurred the disqualification as provided in sub-section (3) of Section 8

of the act, for a period of three months and if within that period he had filed an appeal until the decision of the appeal. Therefore, the appellant could have easily avoided the incurring of the disqualification by filing an appeal within three months from the date of his conviction by the high court. However, he chose to resign from the membership of the Lok Sabha soon after he was convicted by the high court and wanted to seek a fresh mandate by contesting the election. The appellant sought the stay or suspension of the order of conviction passed against him by the high court on the ground that he was a sitting Member of Parliament on the date of the conviction. Though he would not have incurred any disqualification and could have continued to remain as Member of Parliament by merely filing an appeal within three months and the protection would have ensured to

his benefit till the decision of the appeal. But in order to set high standards in public life, he immediately resigned from the membership of the Lok Sabha. He now wanted to seek a fresh mandate from the electorate and wanted to contest the election for membership of the Lok Sabha, which was due to take place shortly on account of his resignation. Learned senior counsel for the State of Punjab submitted that the case in hand

could not be called as a rare case where an order for suspension of conviction should

be passed. Learned counsel also submitted that the appellant, having given up his

rights under Sub-section (4) of Section 8 of the Representation of the People Act and having himself resigned from the membership of Parliament, ‘cannot again come back

to (the) Parliament until the appeal is decided in his favour’. The contentions raised,

the court observed, Learned senior purity and probity persons who have

had no substance. counsel for the complainant submitted that in order to maintain in public bodies, ‘criminalisation of politics has to be stopped and been convicted of any offence should not be allowed to enter the

Parliament’. The apex court rejected the above contention, holding that courts have to

interpret the law as it stands and not on considerations which may be perceived to be

morally more correct or ethical.

Case 53

O. Ramalingam and Ors v. The Director, Daily Thanthi and Ors AIR 1975 Mad 309 RAMAPRASADA RAO AND NATARAJAN, J. J.

Date of Judgment: 11.04.1974

FACTS-IN-BRIEF The appellants are editor and printer of a Tamil daily, which allegedly published

defamatory reports against the plaintiffs/respondents who were director and editors of another daily, Daily Thanthi, alleging that the respondents had incriminated and targeted employees of the respondents who were indulging in union activities. The defence of the appellant was that they were only making a true and faithful, though not verbatim, reproduction of the adjournment motion raised in the Madras Assembly and that they were protected by the same privilege which was extended to the publication of other parliamentary proceedings. The trial court had given a verdict against the appellants. ISSUES

1. Did the appellants enjoy absolute privilege to publish the proceeding of the House and not be subject to legal liabilities?

2. If not, did the action of the appellants amount to defamation? DECISIONS

1. The appellants did not enjoy absolute privilege. They only enjoyed a qualified privilege.

O. Ramalingam and Ors v. The Director, Daily Thanthi and Ors

349

2. To prove that the appellants are protected by the qualified privilege, they have to prove three contents, namely (i) that the publication is a true and faithful report of the proceedings, (ii) that the published matter is of importance to the public,

and (iii) that it was not actuated by any malice or oblique motive.

SUMMARY OF THE JUDGMENT Though the appellant filed the appeal on the grounds that they enjoyed absolute privilege to publish the House proceedings, after the court referred to the decision in M. S. M. Sharma’s case, counsel for the appellants conceded that the privilege was only a qualified privilege. It was, therefore, held that a newspaper publication of parliamentary proceedings, which terminology would include Assembly proceedings as well, cannot be placed on the same pedestal as a speech made by the legislator himself on the floor of the House and treated as an absolutely privileged one. To come under the protective umbrella of a qualified privilege, the appellants had to prove three things, namely (i) that the publication is a true and faithful report of the

proceedings; (ii) that the published matter is of importance to the public; and (iii) that it was not actuated by any malice or oblique motive. In the court’s opinion and after considering the submission of counsel, it was decided that the third issue was the most important one and the decision on the other

two issues was immaterial keeping in view the decision on the third. It was held that

if the element of honesty and the requisite content of bonafides are absent and, on

the other hand, it is found that malice is the motivating reason for the publication,

then, however, true and accurate the report may be or however important the matter concerned is, insofar as the public interest is concerned, yet the protective cloak of qualified privilege offered by law for the publication must be read asunder so as to make the publisher vulnerable for the consequences of his act, insofar as it has roused the person aggrieved by the publication to action. On the facts of the case, it was established that the defendants were previously employees of the plaintiffs and that they harboured ill-will and malice towards the latter for having terminated their services. It was also proved, on comparison with some other publications of the same proceedings of the House, that some of the aspersions made against the plaintiffs were blatantly false. Hence, the appeal was dismissed and the trial verdict against the appellants was upheld.

Case 54

PV, Narasimha Rao v. CBI (Delhi) 265: 68(1997) DLT 553: MANU/DE/1201/1997 JASPAL SINGH, J. Date of Judgment: 12.09.1997

FACTS-IN-BRIEF In the general elections in 1991, though Congress (I) had emerged as a single largest

party, yet it needed the support of at least fourteen more Members of Lok Sabha for a

simple majority. The lack of a clear majority and the need to win over at least fourteen other Members of Lok Sabha was felt more acutely when the Government came to

know of an impending ‘Motion of No Confidence’, which, in fact, came to be moved

on 26 July 1993. On 28 July 1993, the Motion was lost. The Prime Minister succeeded

in mustering the support of fourteen more Members. But the question was: How did

he manage to win their support? The Central Bureau of Investigation (CBI) informed

the court that Captain Satish Sharma, Buta Singh, V. Rajeshwara Rao, H. M. Revanna, Ramalinga Reddy, M. Veerappa Moily, D. K. Audikeshavalu, M. Thimmegowda and Bhajan Lal were some of the persons who helped the Prime Minister in mustering the required numbers. And it was done ‘with the applause of money indeed’! The four

JMM Members of Parliament and seven Members of Parliament of the Ram Lakhan

Singh Yadav group voted against the Motion. And, on the 29th and the 30th, the JMM

Members of Parliament received part of the promised booty. For the rest, arrangements

were made in Bangalore. Three separate chargesheets were filed by the CBI, and on 6 May 1997 learned Special Judge ordered framing of charges against P. V. Narasimha Rao, Captain Satish Sharma, Buta Singh, V. Rajeshwara Rao, H. M. Revanna, Ramalinga Reddy, M. Veerappa Moily, D. K. Audikeshavalu, M. Thimmegowda and

Bhajan Lal under Sections 120B of the IPC read with Sections 7, 12 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, and so also under

Section 12 of the Prevention of Corruption Act, 1988. The learned Special Judge also

P. V. Narasimha Rao v. CBI (Delhi)

351

ordered framing of charges against Suraj Mandal, Shibu Soren, Simon Marandi, Ajit Singh, Ram Lakhan Singh Yadav, Ram Saran Yadav, Roshan Lal, Anandi Charan Das,

Abhey Pratap Singh and Haji Mohd. Khan under Section 120B of the IPC read with Sections 7, 12, 13(2) read with Section 13(1)(d) as well as under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

ISSUE

Whether the court would have no jurisdiction to fasten any criminal liability on the petitioners as whatever allegedly happened was in respect of the votes given by some of them in the Lok Sabha, and, in any case, whatever transpired touched the privileges of House within the meaning of Clause (3) of Article 105 of the Constitution? DECISION

The petitions filed against the impugned order were dismissed. The parties were directed to appear before the learned Special Judge.

SUMMARY OF THE JUDGMENT The impugned order framing the charges was challenged on various grounds. One of them rested on Article 105 of the Constitution of India, particularly on Clauses (2)

and

(3) of the above article. It was contended

that even

if the allegations of the

prosecution were accepted, the court would have no jurisdiction to fasten any criminal liabilicy on the petitioners as whatever allegedly happened was in respect of the votes given by some of them in the Lok Sabha and that, in any case, whatever transpired touched the privileges of House within the meaning of Clause (3) of Article 105 of the Constitution. Article 105 reads as under: Powers, privileges, etc., of the Houses

of Parliament and of the members

and

committees thereof (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. (2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before

the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to

persons who by virtue of this Constitution have the right to speak in, and otherwise

to take part in the proceedings of, a House of Parliament or any committee thereof as

they apply in relation to members of Parliament.

352

Summary of Cases

Before the Constitution (Forty-fourth Amendment) Act, 1978, in Clause (3), instead

of the words ‘shall be those of that House and of its members and committees

immediately before the coming into force of Section 15 of the Constitution (Forty-

fourth

Amendment)

Act,

1978’,

the words

were:

‘shall

be those

of the

House

of Commons of the Parliament of the United Kingdom, and of its members and committees at the commencement of this Constitution’.

It was contended that while Clause (1) of the article confers freedom of speech on Members of Parliament independently of, and uncontrolled by, anything in

Article

19(1)(a), Clause

(2) goes one step further than Clause (1) in one respect,

namely, legal immunity of Members of Parliament for anything said in Parliament or in respect of any vote given by them in Parliament or in any Committee thereof. It was argued that in view of Clause (2) no action in a court of law lies ‘in respect of

anything said or any vote given and that the immunity is complete and is based on

the principle that it is of the essence of the parliamentary system of Government that people's representatives should be free to express themselves and/or to vote without

fear of legal consequences. Laying particular emphasis on the words ‘in respect of” it

was contended that whatever happens even outside the precincts of Parliament, but

in respect of any voting in Parliament would also be immune from legal consequences in a court of law. In other words, the contention was that even if the allegations of the prosecution were to be accepted, as the process of winning over the voters even

by means of illegal gratification, was ‘in respect of’ the voting in Parliament, the

immunity extended to those acts as well and that any action taken under the Act of

1988 with regard to the same would be in violation of Article 105. It was also argued that the courts cannot look into the pattern of voting in the Lok Sabha nor can the courts use the same as evidence to support the charge of corruption and in support reliance was placed on Church of Scientology v. Johnson Smith (1972) 1 All Er 378 and R. v. Secretary of State (1983) 2 All Er 233. The court observed:

The powers, privileges and immunities enjoyed both under clauses (2) and (3) proceed on the same ground, viz. the necessity that the Parliament and its members should

in no way be obstructed in the performance of their high office and important duties and that if there is any such obstruction caused either to the Parliament or to any Member, the remedy should be in the hands of the House.

The court added: The Members

may enjoy all privileges and immunities which may be necessary

to ensure freedom of speech and right of vote inside the parliament, but then in England there has never been any suggestion that “inviolability” could interfere with

the working of the Penal law. It applies only in case of civil matters and that too to

prevent the arrest of Members for a few days during and after the Session. I have no manner of doubt that with regard to the Penal law the position is no different in India.

P. V. Narasimha Rao v. CBI (Delhi)

353

It was also contended that it is for Parliament to decide as to whether the act complained of falls within the ambit and scope of the words ‘in respect of’ and that the courts, by embarking upon any enquiry on that aspect of the matter, would be in contempt of the House. The court, in response to the above, remarked: *... the question as to whether the act complained of falls within the ambit and scope of the words “in respect of anything said or any vote given by him in Parliament” would not be beyond the jurisdiction of the court’. After referring to some of the authorities, the court summed up thus: (32) Despite all the ups and downs some of the privileges remain well-entrenched. The

main privileges may be enumerated. They are as under: “(i) Freedom of tie Members

from civil arrest for a period of forty days before to forty days after the meeting of the Parliament. However, this protection was not available with regard to arrests made on criminal charges for an offence or where there was preventive detention by an order of the executive authorities under statutory powers. (ii) Freedom of speech, debate

and proceeding. These freedoms could neither be impeached nor questioned in any

court. (iii) Power and privilege to commit for contempt. As per Erskine May the

main value of this power lay “in upholding the dignity of Parliament and defending it against disrespect and affronts which could not be brought or could only be brought by implication under the head of any of the specific privileges”.

The court observed about the position under English Law:

.. acceptance of a bribe by any Member of either House to influence him in his conduct as such Member is a breach of privilege and there have been cases where Members of the Commons found guilty of such offence have either been committed [CJ (169-97) 236] or expelled (CJ (1667-87)24], (CJ (1693-97) 274]. There is also

no doubr that influencing or attempting to influence Members of Parliament may be considered contempt. In 1695 the House of Commons had resolved that the offer of money, or other advantage, to any member of Parliament for the promoting

of any matter whatsoever, depending or to be transacted in Parliament is a high

crime and misdemeanour and tends to the subversion of the English Constitution [CJ (1693-97) 331].

The court concluded the issue with the following observation: Surely, one is not to define Parliamentary sovereignty in the formalistic Diceyan sense of blind obedience to statutory words, but in a much giving effect to legislative immunities.

more functionalistic vein of

Case 55

PV. Narasimha Rao v. State (CBI AIR 1998 SC 2120: 1998 (3) SCALE 53: (1998) 4 SCC 626: [1998] 2 SCR 870 S. C. AGRawaL, G. N. Ray, A. S. ANAND,

S. B. BHARUCHA AND S. RAJENDRA BaBu, J. J. Date of Judgment: 17.04.1998

FACTS-IN-BRIEF A no-confidence motion was moved against the minority government of P. V. Narasimha

Rao. The said motion did not get the requisite number of votes to be successful. It

was seen that some Members belonging to the Jharkhand Mukti Morcha (MM)

and Janata Dal (Ajit Singh faction) voted against the motion. Shri Ajit Singh himself

abstained. Allegations arose that Shri Rao and some the other MPs of his party had given bribe or illegal gratification to these JMM and JD MPs who had voted against the no-confidence motion. Criminal prosecution under the Section 120B of the IPC

as well as various provisions of the Prevention of Corruption Act were started. The appellants challenged the framing of charge before the high court. The said petition was dismissed and hence the appeal. Since the matter involved constitutional questions, a Constitution Bench was constituted by the Supreme Court. ISSUES

1. Does Article 105 of the Constitution confer any immunity on a Member of Parliament from being prosecuted in a criminal court for an offence involving offer or acceptance of bribe? 2. Isa Member of Parliament excluded from the ambit of the 1988 Act for the reason that: (i) he is not a person who can be regarded as a ‘public servant’ as defined under Section 2(c) of the 1988 Act, and (ii) he is not a person comprehended in

P. V. Narasimha Rao v. State (CBI)

355

Clauses (a), (b) and (c) of Sub-section (1) of Section 19 and there is no authority

competent to grant sanction for his prosecution under the 1988 Act? DECISIONS

1. A Member of Parliament is a public servant under the definition in the Prevention of Corruption Act, 1998. 2. The term ‘in respect of’ in Article 105(2) of the Constitution should be given the broadest possible interpretation. 3. Members who are accused of having taken bribe for voting in the House are immunised from prosecution by Article 105(2) of the Constitution.

4. This does not preclude the Lok Sabha from proceeding against these Members under its contempt powers for breach of a parliamentary privilege. 5. The Members who gave bribe and the Members who took bribe and did not vote will not get the above said protection. 6. There is a lacuna in Section 19 of the Prevention of Corruption Act (PCA), 1988,

to the extent that it does not prescribe a sanctioning authority for prosecuting Members of Parliament since there is no authority who can remove a Member from his seat. 7. Sections 7, 10, 11, 13 and 15 of the PCA, 1988, require prior sanction for prosecution. But merely because there is no authority to remove an MP from his office, he does not cease to be a public servant for the purpose of the act. In the absence of an authority competent to remove and grant sanctions under Section 19(1) there is no limitation on the power of the court to take cognizance

of offences mentioned in Section 19(1). But till provision is made by Parliament in that regard by suitable amendment in law, the prosecuting agency before filing a chargesheet in respect of an offence punishable under Sections 7, 10, 11, 13, 15 of the 1988 Act against an MP in a criminal court, shall obtain the permission of the Chairman of the Rajya Sabha or, as the case may be, Speaker of the Lok Sabha. SUMMARY OF THE JUDGMENT The main argument of the appellant in this case was based on and around Articles 105(1)

and (2) of the Constitution. They, firstly, contended that Article 105(2) bars judicial interference ‘in respect of’ anything said or any vote given in Parliament. According to

the appellants, the phrase ‘in respect of’ has to be given the broadest possible meaning so as to give full effect to its purpose. The court discussed all the relevant cases on this aspect including the M. S. M. Sharma case. It was noted that the Constitution had not

placed any fetters on the freedom given under Article 105(2) and this differentiated it from Article 19(1){a). This freedom is given so as to ensure that the elected

representatives may express their opinions and cast votes in the House without fear or favour. In order to ensure this, the term ‘in respect of’ used in Article 105(2) should

356

Summary of Cases

be given the broadest possible interpretation. Broadly interpreted thus, Article 105(2) protects a Member of Parliament against proceedings in court that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in

Parliament.

The learned Attorney General tried to argue that the bar to judicial interference

arises only when a speech made or a vote given in the House is challenged and not for such offences which are ancillary. The court did not subscribe to this point of view. It held:

It is not enough that members should be protected against civil action and criminal proceedings, the cause of action of which is their speech or their vote. To enable members to participate fearlessly in Parliamentary debates, members need the wider

protection of immunity against all civil and criminal proceedings that bear a nexus

to their speech or vote. It is for that reason that a member is not “liable to any proceedings in any court in respect of anything said or any vote given by him”.

Article

105(2) does not say, which

it would

have if the learned Attorney General

were right, that a member is not liable for what he has said or how he has voted.

While imputing no such motive to the present prosecution, it is not difficult to envisage a member who has made a speech or cast a vote that is not to the liking of the powers that be being troubled by a prosecution alleging that he had been party to

an agreement and conspiracy to achieve a certain result in Parliament and had been

paid a bribe.

The court though admitted that if the accused were actually guilty of the offences then they have bartered a solemn trust reposed in them by the people. But in their own

words: ‘Our sense of indignation should not lead us to construe the Constitution narrowly,

impairing the guarantee to effective Parliamentary participation and debate’. Thereafter, the court proceeded to protect all the bribe takers, except Mr Ajit Singh from prosecution by virtue of Article 105(2). Mr Ajit Singh, since he did not

cast a vote, was liable to be proceeded against. The petitioners then contended that

since the bribe takers were not to be proceeded against, it was but natural that the bribe givers be also acquitted. This was not agreeable to the court. It was held that: Article 105(2) does not provide that what is otherwise an offence is not an offence

when it is committed by a member of Parliament and has a connection with his

speech or vote therein. What is provided thereby is that a Member of Parliament shall not be answerable in a court of law for something that has a nexus to his speech or vote in Parliament. If a Member of Parliament has, by his speech or vote in Parliament, committed an offence, he enjoys, by reason of Article 105(2), immunity

from prosecution therefor. Those who have conspired with the Member of Parliament in the commission of that offence have no such immunity. They can, therefore, be prosecuted for it. Another contention raised by the appellants with respect to parliamentary privileges

was that the act of giving bribe was at best a breach of privilege and contempt of Lok Sabha and it is the Lok Sabha which can take action against the appellants. The court

P. V. Narasimha Rao v. State (CBI)

357

said that the Lok Sabha could definitely take action against the bribe givers and bribe takers for alleged contempt, but that did not bar the initiation of criminal prosecution that was otherwise permitted by law. It also adopted the argument of the Attorney General that acts of bribery of Members of Parliament did not constitute a privilege of the House of Commons at the time the Constitution came into being. Therefore, Article 105(3) could not grant protection to the appellants. Besides, in an important observation, it was held that: Article 105(2) provides for the sum total of the privileges and immunity that attach to what is said in Parliament and to votes given therein. Article 105(3) applies only “in other respects”. To what we are here concerned with the provisions of Article 105(2) apply, to the extent indicated earlier.

The minority decision given by Agarwal and Anand, J. J. differed with the majority on the interpretation of Article 105(2). The minority held that the phrase ‘in respect of’ in Article 105(2) has to be construed as ‘arising out of’. Thus, the immunity provided by Article 105(2) would be confined to liability arising out of, or attributable

to, something that has been said or to a vote that has been given by a Member of Parliament or a Committee thereof. The act of acceptance of bribe for speaking or giving vote against the motion arose independently of making of speech or giving of vote by a Member of Parliament. Hence, liability for the offence cannot be treated ‘in respect of anything said or any vote given in Parliament’ and neither the bribe takers nor the bribe givers are entitled to any immunity under Article 105(2). PREVENTION OF CORRUPTION ACT

The second line of argument was within the ambit of public servant This was based on the decision of it was held that an MLA was not

that the in order the court a public

Members of Parliament did not come to be proceeded against under the PCA. in R. S. Nayak v. A. R. Antulay wherein servant. This was a 1961 decision. The

said decision was on the IPC definition of ‘public servant’. The ambit of the PCA,

1988, was much broader and, keeping in mind that the Members definitely undertake

‘public functions’, it was held, unanimously, that Members of Parliament were ‘public servants’ under Section 2(c)(viii) of the PCA.

The next issue was that the under Section 19 of the PCA ‘prior sanction’ of controlling authorities of the public servant was a must before prosecuting him under Sections 7, 10, 11, 13 and 15 of the same act. In case of a State Government employee, it is the State Government that has to give the sanction and in case of Central Government employees it is the Central Government. In case of the other public servant, it is the authority competent to remove him from office. It was contended that since there was no authority competent to remove a Member of Parliament, he could not be proceeded against under the said sections. Rejecting the arguments, it was held, per majority (per Agrawal, Anand, J. J. and Ray, J., concurring), that merely because there is no authority to remove a Member of

358

Summary of Cases

Parliament from his office, he does not cease to be a public servant for the purpose of the act. In the absence of an authority competent to remove and grant sanctions under Section 19(1), there is no limitation on the power of the court to take cognizance of

offences mentioned in Section 19(1). But until a provision is made by Parliament in that regard by suitable amendment in the law, the prosecuting agency before filing

a chargesheet in respect of an offence punishable under Sections 7, 10, 11, 13, 15 of the 1988 Act against a Member of Parliament in a criminal court shall obtain the permission of the chairman of the Rajya Sabha or, as the case may be, Speaker of the Lok Sabha. On this issue, the minority consisting of Barucha and Rajendra Babu J. J. disagreed with the stand taken by the majority. It was observed thus: ... based on the language of Section 2(c)(viii) read with Section 2(b), that Members

of Parliament are public servants. That finding, based upon the definition section, must apply to the phrase ‘public servant’ wherever it occurs in the said Act. It cannot change if it be found that there is no authority competent to remove members of Parliament from office. Members of Parliament would, then, not be liable to be prosecuted for offences covered by Sections 7, 10, 11, 13 and 15, the condition of prior sanction being incapable of being satisfied, but they would remain liable to prosecution for offences under the said Act other than those covered by Sections 7, 10, 11,13 and 15.

Case 56

Panna Lal Agyan and Ors v. The Hon'ble Speaker,

Sri Balram Jakgad and Ors

AIR 1988 All 167: MANU/UP/0189/1988 S. K. MOOKERJEE AND Ravi S. Duavan, J. J.

Date of Judgment: 07.12.1987

F ACTS-IN-BRIEF

An Hon'ble Member of Parliament, Mr Amitabh Bachchan, was about to submit his resignation, to resign from his seat in Parliament from the constituency he represented, to the Speaker. Upon this present, a writ petition was filed before the court under Article 226 of the Constitution of India. The petitioners upon their narration in the

petition were not sure whether the resignation has been tendered. The petitioners refer to the resignation, as ‘alleged resignation’. ISSUES

1. Would it be proper for this court to issue a writ as to either of these persons? 2. To accept or not to accept a resignation of a Member of Parliament is the conduct of business with which the Speaker is vested with discretion to accept it or to reject it. Can this court interfere with this discretion? DECISION

The resignation, of which an issue was being made, is a resignation contemplated under Clause

(3)(b) of Article

101

of the Constitution

and that this is a matter

between the Member of Parliament and the Speaker. This action is personal to the Member of Parliament and the satisfaction in accepting the resignation is exclusive to the discretion of the Speaker.

360

Summary of Cases

SUMMARY OF THE JUDGMENT The

resignation

submitted

by the Member

of Parliament

is under

Clause

(3) of

Article 101 of the Constitution of India. The relief sought in the writ petition are: (i) a writ of mandamus to the Speaker of the Lok Sabha directing him not to accept the resignation should he receive it; (ii) a writ of mandamus

to the Prime Minister

restraining him from recommending the resignation of the Member of Parliament,

if made; and (iii) a writ of mandamus to the Member of Parliament to withdraw his

resignation, if made. There is a fourth relief sought also under what is ‘deemed fit and

proper clause which seeks a relief from the court to secure the end of justice to save

democracy. The court before going into the details of the cases first satisfied itself that it has the jurisdiction to interfere in a matter such as in issue in the writ petition. It was held

that the court was having no jurisdiction to decide the issue, and while deciding this, the court made the following observations: This action is personal to the Member of Parliament and the satisfaction in accepting the resignation is exclusive to the discretion of the Speaker. This Court did not consider it appropriate to entertain the present petition and interfere with a discretion which is personal to the Member of Parliament to resign and further the discretion vested with the Speaker to accept or not to accept the resignation. The submission of resignation by a Member of Parliament in reference to Article 101 of the Constitution of India is a unilateral act upon which no restraint can be put by a Court. The ethics or morality of resignation is also outside the purview of the

Court and is a matter personal to the Member of Parliament. The acceptance of the resignation is a matter of consideration for the Speaker and he alone will be the judge whether the resignation ought to be accepted or not. It is the domain of the Speaker if from information received or otherwise and after making such enquiry as he thinks fit, and therefore being satisfied whether the resignation is voluntary or genuine and if it ought to be accepted or not. This Court then cannot read anything in between the lines of Article 101. Upon a resignation being submitted and forwarded to the Speaker of the Lok Sabha, it is not the business of this Court to intrude into a discretion which the Constitution requires of the Speaker. Should the petitioners desire to express anything on the resignation of the Member of Parliament then this Court is not the forum for it. If what they have to say partakes of the nature of information received by the Speaker, then the satisfaction of the Speaker to accept or not to accept the resignation is exclusively at his discretion.

There may be an occasion when this Court has and will protect the liberty of a citizen, so guaranteed under Article 21 of the Constitution of India, if there is unwarranted interference with it otherwise than in accordance with law. Such is not

the case here.

... In a matter relating to the conduct of a Member of Parliament in reference to a resignation submitted by him or the acceptance of it or the rejection of it, it is the

business of the Parliament alone upon which this Court ought not to comment, nor should this court comment on a matter under the discretion of the Speaker, to arrive

Panna Lal Agyan and Ors v. The Hon’ble Speaker, Sri Balram Jakgad and Ors

at satisfaction to accept the resignation or not to accept it ... The pleadings in the writ petition are less law and more inanity on why a Member of Parliament ought not to resign, a circumstance with which the Court is not concerned.

‘The writ petition was thus dismissed.

361

Case 57

Parkash Singh Badal and Ors v. Union of India and Ors AIR1987 P&H 263: MANU/PH/0106/1987 H.N. Setn, C. J., D. S. Tewatia, R. N. Mitta, S. P. Goya AnD J. V. Gupta, J. J. Date of Judgment: 01.05.1987

FACTS-IN-BRIEF Three writ petitions (Civil Writ Petition Nos. 3065, 3268 and 3435 of 1986) based on

identical facts and involving common questions of law were filed. In these petitions, the petitioners aver that in the wake of the armed police attack on the holy precincts of Sri Harmandir Sahib (Golden Temple, Amritsar) on 30 April 1986, which was widely resented in the rank and file of Shiromani Akali Dal, a majority of the functionaries

of the party, its office-bearers and district Jathedars resigned from their posts; Sarvshri Parkash Singh Badal and Gurcharan Singh Tohara resigned on 1 May 1986 from the membership of the working committee and the party led by respondent no. 7, Shri Surjit Singh Barnala, the Chief Minister. Two of the petitioners (nos. 2 and 23) resigned from their posts of Cabinet Ministers, and along with Sarvshri Surjan Singh Thekedar and Manjit Singh, the Vice-President and the General Secretary respectively of the party, repudiated the leadership of respondent no. 7. Petitioners 19 and 20 relinquished the posts of District Presidents of Gurdaspur and Ludhiana units of the Shiromani Akali Dal. Thus, there occurred a split in the Shiromani Akali Dal and a separate political party also known as Shiromani Akali Dal (Badal) consisting of the abovementioned and other leaders and district Jathedars was formed and Shri

Surjan Singh Thekedar was appointed as its Acting President and Shri Manjic Singh as General Secretary. As a result thereof, twenty-seven members of the Legislative

Assembly, including the twenty-five petitioners in the three petitions of the Shiromani Akali Dal (L) legislature party sent a letter, on 7 May

1986 (copy Annexure P-1), to

the then Speaker that they had decided to form a separate legislative group and be

Parkash Singh Badal and Ors v. Union of India and Ors

recognised as such and allotted separate seats after getting a declaration from each of the the claim made in the said letter, recognised party and ordered the allotment of separate order dated 8 May 1986.

363

in the Punjab Vidhan Sabha. The Speaker, signatories and having satisfied himself of them as members of the separate political seats to them in the Vidhan Sabha by an

The Deputy Speaker Shri Nirmal Singh Kahlon was inducted as Minister in the

Cabinet on 6 May 1986 and the Speaker resigned from his office on 27 May 1986. The Governor of Punjab, therefore, summoned the Vidhan Sabha to meet on 2 June 1986 to elect the Speaker and the Deputy Speaker and to transact other business. The newly-formed group set up Shri Arjan Singh Litt and Dr S. S. Mohi for the offices of the Speaker and the Deputy Speaker respectively and a whip to vote for them was issued to the members of this group by Shri Amarinder Singh. Shri Surjit Singh Minhas, respondent no. 6, and Shri Jaswant Singh contested the offices of the Speaker and the Deputy Speaker as candidates of the original Shiromani Akali Dal and a whip was issued by respondent no. 7 to its members to vote for them. The candidates set up

by the Shiromani Akali Dal, headed by Shri Surjit Singh Barnala, were elected as the Speaker and the Deputy Speaker securing forty-six votes each even though the total strength of the Shiromani Akali Dal legislature party was seventy-three because the votes of the breakaway group were polled in favour of the candidates set up by the latter. Shri Surjit Singh Barnala, therefore, filed a petition under Article 191(2) read with

paragraphs 2 and 6 of the Tenth Schedule for declaring Shri Parkash Singh Badal and twenty-two other members, who had violated the whip issued by him, as disqualified from being Members of the Punjab Vidhan Sabha. The Speaker thereupon issued a show cause notice dated 13 June 1986 to each of the said Members requiring them to show cause as to why they be not disqualified from the membership of the House

in terms of Article 191(2) read with paragraphs 2 and 6 of the Tenth Schedule of the

Constitution. On 4 July 1986, the Speaker has passed another order rejecting the

application of Captain Amarinder Singh, MLA, wherein he claimed to be recognised as the leader of the twenty-seven MLAs who were stated to have formed a separate legislative party because of the alleged split in the Shiromani Akali Dal. The issue of show cause notice dated 13 June 1986 and the order dated 4 July 1986 (mentioned above) have led to the filing of the present petitions. ISSUES

1. Whether the provisions of paragraph 6(1) of the Tenth Schedule do have the effect of excluding the jurisdiction of the high courts under Article 226 or the Supreme Court under Article 136 of the Constitution, and, therefore, require ratification under Article 368? 2. Whether non-ratification of the amendment contained in paragraph 7 of the

Tenth Schedule by one-half of the States in terms of the proviso to Clause (2) of

Article 368, render the same ultra vires and unconstitutional?

364

Summary of Cases

3. Whether Captain 4, Whether declared 5. Whether separate whether

the Speaker’s order dated, 4 July 1986, rejecting the application of Amarinder Singh deserves to be quashed? paragraph 2(b) should be read down in order to save it from being as unconstitutional? the Speaker's order dated 8 May 1986 recognising the split group as a political party is an order within the purview of paragraph 6, and if so it is legal and valid?

DECISION

The first two issues have been answered by the court unanimously. As to the first issue it was held that the provisions of paragraph 6(1) do not have the effect of excluding

the jurisdiction of the high court under Article 226 or of the Supreme Court under Article 136 of the Constitution, and, therefore, it did not require ratification under

Article 368. Paragraph 7 was declared unconstitutional for its non-ratification by onehalf of the States in terms of proviso to Clause (2) of Article 368 of the Constitution.

So far as the third issue is concerned, all the Judges have held that the same

deserves to be quashed, but for different reasons. However, there was no unanimity as to the fourth and fifth issues. Per majority

(S. P. Goyal, H. N. Seth and R. N. Mittal, J. J.) have held that paragraph 2(b) is not

violative of Article 105 of the Constitution. The majority was of the view that the

order recognising the breakaway group as a separate party cannot be said to be an order passed under paragraph 6, whereas D. S. Tewatia has taken a contrary stand with

whom Gupta, J. has agreed.

SUMMARY OF THE JUDGMENT The respondents have raised several legal objections against the maintainability of the petition and the issuance of the notices and the order were claimed to be in accordance with law whereas the order of his predecessor was stated to be without jurisdiction. The

averments regarding the public reaction because of police entry in the Golden Temple Complex and the resultant split in the Shiromani Akali Dal were denied. It was further

averred that it was for the first time on 30 June 1986 that a news item appeared in

The Tribune indicating that the breakaway group was contemplating calling a session of the delegates to elect a new President; and that in spite thereof the petitioners have not averred even in the present petition that they had quit the Shiromani Akali Dal or had formed any new political party and become its members. The petitioners have challenged the vires of the Amendment Act on the ground that it has eroded the basic structure of the Constitution in three ways that Clause (b)

of paragraph 2 is destructive of parliamentary democracy and the federal structure, the two basic features and paragraphs 6 and 7 of the power of judicial review of the high court and the Supreme Court under Articles 226, 32 and 136 of the Constitution. By

Parkash Singh Badal and Ors v. Union of india and Ors

365

way of corollary to the destructive character of paragraphs 6 and 7 of the basic feature of judicial review, it was contended that as the said provisions have sought to make changes in Chapter IV of Part V and Chapter V of Part VI, which contain Articles 136 and 226, the Bill required ratification by the legislature of not less than one-half of the States as envisaged by proviso to Article 368(2) of the Constitution and the same having been not done, the entire act was still born and invalid. As regards the quashing of the Speaker’s order dated 4 July 1986, it was contended that a valid order had

already been passed by the Speaker recognising a split in the Shiromani Akali Dal and the petitioners as a separate group representing the faction which had arisen as a result of the said split and the present Speaker had no jurisdiction to review the said order of his predecessor and make a fresh decision. Learned counsel for the respondent, on the other hand, claimed that the said order was without jurisdiction and, as such, being void ab initio was rightly held to be not binding on any of the parties by the Speaker. The reasons advanced for this claim were that no question having arisen whether any Member of the House has become subject to disqualification, reference to the Speaker in this regard was premature and incompetent; and that no notice having been issued to the leader of the original political party and the leader of the legislature party, thus, the order was passed in violation of the principles of natural justice. Per Full Bench.

The provisions of paragraph 1 do not have the effect of excluding the jurisdiction of the high court under Article 226 or of the Supreme Court under Article 136 of the Constitution and, therefore, did not require ratification in terms of proviso to Clause (2) of Article 368 of the Constitution of India.

Paragraph 7 of the Tenth Schedule, as it takes away the jurisdiction of the

Supreme Court under Article 136 and of the high courts under Article 226 in respect

of cases relating to disqualification under the Tenth Schedule, it is ultra vires and unconstitutional for it was not got ratified by one-half of the States as required by

proviso to Clause (2) of Article 368 of the Constitution. And, since paragraph 7 of

the Tenth Schedule is severable from the rest of the part in the Schedule without

affecting their working, the whole of the Amendment Act would not be liable to be struck down. Per Majority (S. P. Goyal, H. N. Seth and R. N. Mittal, J. J.)

The right of a Member under Article 105 of the Constitution is not an absolute one and has been made subject to the provisions of the Constitution and rules and standing orders regulating the procedure of Parliament. The framers of the Constitution, therefore, never intended to confer any absolute right of freedom of speech on a Member of Parliament and the same can be regulated or curtailed by making any constitutional provision, such as Fifty-second Amendment. The provisions of paragraph 2(b) cannot, therefore, be termed as violative of the provisions of Article 105 of the Constitution.

366

Summary of Cases

Further, the principle of reading down a statute to save its constitutionality cannot reasonably be invoked in the present case.

As to the third and fifth issues (abovementioned), it was held that neither any

question as envisaged by paragraph 6 had arisen on the filing of the memorandum before the Speaker nor the order recognising the breakaway group as separate party can be said to be an order passed under paragraph 6. The natural corollary to this conclusion would be that a question as to the disqualification of the petitioners had arisen and the Speaker was seized of the matter only when an application in that regard was made to him. As before passing the order, recognising the breakaway group as a separate party, neither the political party nor any other person interested in the matter was heard, it would bind none and in that sense it can be said to be an order void ab initio. The order dated 4 July 1986 rejecting the application has to be quashed because the claim of Shri Amarinder Singh that he has been elected leader of the splinter group could be disposed of only after the question of disqualification of the Members of that group has been settled. Thus, the petition is partly allowed. Per Minority (D. S. Tewatia and J. V. Gupta, J. J.) Paragraph 2(b) has to be read down to save its constitutional validity. Paragraph 2(b)

after being read down envisages incurring of disqualification by a Member only when he votes or abstains from voting contrary to the direction of the political party on a motion of no-confidence or cut-motion on budgetary grant. When so read, paragraph 2 is not destructive of parliamentary democracy, which is a basic feature of the Constitution and forms part of the basic structure of the Constitution of India, nor is it destructive of the two other alleged basic features of the Constitution, namely: 1. The federal structure of the Constitution. 2. Separation of powers between the three wings of the State, namely executive, legislature and judiciary. That the order of the Speaker dated 8 May 1986 is legal and valid. Thus the Speaker (subsequently elected) acted beyond his jurisdiction in entertaining the application of respondent no. 7 and in issuing the impugned show cause notice dated 13 June 1986.

That the Speaker had no option but to accept the application of Shri Amarinder Singh and recognise him as leader of the breakaway group of the Akali Dal Party in view of the order of his predecessor dated 8 May 1986. Thus, the order of the Speaker dated 4 July 1986, rejecting the application of Shri Amarinder Singh, is illegal.

Case 58

Pashupati Nath Sukul and Ors v. Nem Chandra Jain and Ors AIR 1984 SC 399 E. S. VENKATARAMIAH, ©. CHINNAPPA REDDY AND

S. Murtaza Fazat ALI, J. J.

Date of Judgment: 25.11.1983

FFACTS-IN-BRIEF In February 1980 the UP Legislative Assembly was dissolved by the President. A notification was issued by the Governor of Uttar Pradesh under the Representation of

the People Act, 1951, calling upon all the Assembly constituencies in Uttar Pradesh to elect Members to the Legislative Assembly. After the results of the elections in all the constituencies, the Election Commission of India notified that elected Members

could take the oath as required by Article 188 of the Constitution. On 17 June 1980, the Election Commission issued a notification calling upon the elected Members of the UP Legislative Assembly to elect a person for the purpose of filling a vacancy in the Rajya Sabha.

Pashupati Nath Sukul, the appellant, and Nem Chandra Jain, the respondent, were nominated as the candidates at that election. At the time of scrutiny, the respondent filed objections to the nomination of the appellant on two grounds: (i) that the appellant was disqualified as he was a Government servant; and (ii) that the proposer of the candidature of the appellant was not qualified to propose his candidature as he had

not yet taken the oath as required by Article 188 of the Constitution. The objections

of the respondent were overruled. At the poll, the appellant secured 325 votes and the respondent got 41 votes. Accordingly, the appellant ~vas declared to be elected as a Member of the Rajya Sabha. Aggrieved by the result of the election, the respondent filed an election petition before the high court. At the conclusion of the trial, the high

368

Summary of Cases

court set aside the election of the appellant. Against this decision of the high court

present appeal is filed. ISSUES

1. Whether the Secretary of a State Legislative Assembly is not qualified be appointed as the Returning Officer at an election held to fill a seat in Rajya Sabha? 2. Whether a person elected as a Member of a Legislative Assembly, but who has made and subscribed the prescribed oath or affirmation as required by Article

to the not 188

of the Constitution can validly propose a person as a candidate at an election held for filling a seat in the Rajya Sabha?

DECISION The word

‘Government’

under Article

102(1)(a)

and

in Article

191(1)(a)

of the

Constitution and the word ‘Government’ in the expression ‘an officer of Government in Section 21 of the act should be interpreted liberally so as to include within its scope the legislature, the executive and the judiciary. The finding of the high court that the Secretary of the UP State Legislature could not be appointed as the Returning Officer

for the election to the Rajya Sabha is, therefore, unsustainable. The elected Member who had not taken oath but whose name appears in the notification published under Section 73 can take part in all non-legislative activities of elected Members and right

of voting at election to Rajya Sabha can also be exercised by him.

SUMMARY OF THE JUDGMENT The high court set aside the election of the appellant on the following grounds, viz. that Shri S. P. Singh, Secretary, Legislative Assembly, was not qualified to be appointed as the Returning Officer; that the proposal of the candidature of the appellant by a Member of the Legislative Assembly who had not made and subscribed the oath or affirmation as required by Article 188 of the Constitution on the date of nomination was illegal and hence there was improper acceptance of the nomination of the appellant; and that there was no valid electoral roll in force on the date of nomination. Aggrieved by the judgment of the high court, the appellant has preferred Civil Appeals. On

first issue, it was contended by the respondent that the Secretary of the

Legislative Assembly being not an officer of Government or of a local authority, he was not qualified to be appointed as the Returning Officer. The ‘Government’ in the expression ‘an officer of Government’ used in Section 21 of the act means the executive only and an officer of the legislature is not, therefore, an officer of Government.

The court while dealing with this issue dealt with the expressions “Government

and ‘officer of government’ which is not defined in the Constitution. Section 3(23) of

Pashupati Nath Sukul and Ors v. Nem Chandra jain and Ors

369

the General Clause Act was discussed. And while discussing, the court observed that the definition of the word ‘Government is an inclusive definition and it suggests that there may be other organs of State which may be included within the meaning of the expression ‘Government’. The court said: A general review of the constitutional provisions shows various expressions used in it to describe the several organs of the State ... From the legal point of view, Government may be described as the exercise of certain powers and the performance of certain duties by public authorities or officers, together with certain private persons or corporations exercising public functions ... Government generally connotes three estates, namely, the legislature, the executive and the judiciary while it is true that in

a narrow sense it is used to connote the executive only. The meaning to be assigned to that expression, therefore, depends on the context in which it is used. In our Constitution, which has a federal structure, there are both at the level of the Union and at the level of the States detailed provisions, pertaining to the Legislature, the Executive and the Judiciary. All the “three organs are concerned with the governance of the country... though sometimes their functions may be overlapping”. In this sense all the three organs together constitute the Government at their respective level. After discussing the definition of “Government, the court discussed the definition of

‘officer of government’. The court observed:

The Comptroller and Auditor-General of India though he is assigned an independent status is an officer under the Union Government. The position of a person who works as an officer of the Legislature of a State is also the same. Even though he belongs under Article 187 of the Constitution to the staff of the State Legislature, he is still an officer of Government in the broad sense in which the expression “Government” is used in Article 102 (1) (a) and Article 191(I) (a) of the Constitution. If the expression

“Government” used here is construed as meaning the Executive Government only,

then it would defeat the very purpose of these provisions of the Constitution. Similarly he has to be treated as an officer of Government for purposes of Section 21 of the Act also qualified for being appointed as the Returning Officer for an election held under

the Act. Parliament all-along has treated the Secretaries of the State Legislatures as

officers of Government for purposes of Section 21 and has found it convenient to do so having regard to the nature of the work to be carried out by them. On the basis of the above observations, the court held: The

word

“Government”

in Article

102(1)(a)

and

in Article

191(1)(a)

of the

Constitution and the word “Government” in the expression “an officer of Government” in Section 21 of the Act should be interpreted liberally so as to include within its

scope the Legislature, the Executive and the Judiciary. The High Court erred in

equating the word ‘Government’ occurring in Section 21 of the Act to the Executive Government only and in further holding that the officers of the State Legislature could not be treated as officers of Government for purposes of that section. The finding of the High Court that the Secretary of the Uttar Pradesh State Legislature

370

Summary of Cases

could not be appointed as the Returning Officer for the election to the Rajya Sabha is, therefore, unsustainable.

After deciding the first issue, the court moved to discuss the second one. The court observed, ‘Article 193 of the Constitution provides for the penalty for sitting and voting before making oath or affirmation under Article 188 of the Constitution or when not qualified or when disqualified the penalty being in respect of each day five hundred rupees to be recovered as a debt due to the State. It does not say that if an elected member of a Legislative Assembly sits and votes before taking oath as

prescribed by Article 188 of the Constitution he shall automatically cease to be a

member of the House’. While framing the sub-issue of whether the making of oath or affirmation is a condition precedent for being eligible to act as a proposer of a valid nomination for

election to the Rajya Sabha, the court observed:

There is an interval of time between the Constitution of a House after a general

election as provided by Section 73 of the Act and the summoning of the first meeting of the House. During that interval an elected member of the Assembly whose name appears in the notification issued under Section 73 of the Act is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sabha ... The election in question does not form a part of the Legislative proceedings of the House carried on at its meeting. Nor the votes cast at such an election are a vote given in the House on any issue arising before the House. The Speaker has no control over the election. The election is held by the Returning

Officer appointed for the purpose ... Rule 85 of the Conduct of Elections Rules, 1961 provides that as soon as may be after a candidate has been declared to be elected, the returning officer shall grant to such candidate a certificate of election in Form 24 and

obtain from the candidate an acknowledgement of its receipt duly signed by him and immediately send the acknowledgement by registered post to the Secretary of the

Council of States or as the case may be, the Secretary of the Legislative Council. All the steps taken in the course of the election thus fall outside the proceedings that take

place at a meeting of the House.

On the basis of the above observation the court held that ‘that an elected member who has not taken oath but whose name appears in the notification published under Section 73 of the act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under Section 73 of the act and in the electoral roll maintained under Section 152 of the act, it should be held that there was no infirmity in the

nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under Section 73 of the act cannot be held to be illegal.

Case 59

Prakash Kant v. The Speaker of

Uttaranchal Assembly, Dehradun AIR 2002 Urr 11 A. A. Desal, C. J., AND P.C. VERMA, J.

Date of Judgment: 25.06.2002

FACTS-IN-BRIEF

A résumé of facts reveals that, according to the petitioner, respondent no. 2 was not authorised by the Election Commission to fill a seat in the Assembly in terms of Article 173 of the Constitution of India. He was not given an oath under Form VII (B)

of Schedule II. He had, therefore, no right to sit in the Assembly as the Leader of the House. The petitioner prayed for a writ to the Speaker demanding that he should not permit the Treasury Bench or the State of Uttaranchal to elect the leader of the House

a person who is not a Member of the Assembly and to participate in a general debate of the Legislative Assembly. ISSUE

Whether respondent no. 2, who failed to fulfil the requirements of Article 173, be allowed to participate in the debate of the Assembly? DECISION

The court dismissed the petition holding that the constitutional scheme does not

bar respondent no. 2 (a Chief Minister) to act as the leader of the House, given the

absence of any constitutional or legislative sanction.

372

Summary of Cases

SUMMARY OF THE JUDGMENT The court, speaking through A. A. Desai, C. J., took into account the different facets of the matter under consideration, and took a considered view that if there are any rules or procedure for Parliament, they need not be made applicable to regulate the

business of the State Legislature. ‘Leader of the House’, averred the court, ‘is an in-

House arrangement to facilitate the business of the legislature. Ergo, judicially, the

court cannot lay down a qualification for the holder of such designation’.

As to the issue before the court, it is worth noting that Clause 4 of Article 164 permits a minister to continue to be so despite his not being a Member of the House, for a period of six months. Article 177 of the Constitution empowers every minister to take part in the proceeding of the Legislative Assembly.

—

=

Nousleetie ob

Le

ee

Case 60

Purshottam Lal Sharma v. State of Rajasthan and Ors AIR 1979 Raj 18: MANU/RH/0004/1979 M. L. Jatin, J.

Date of Judgment: 03.07.1978

FACTS-IN-BRIEF

This was a petition for a writ of quo warranto under Article 226 of the Constitution, directed mainly against respondent no. 4, Shri Bhairon Singh Shekhawat. The petitioner was an elector registered in the Hawa Mahal Assembly constituency of Jaipur. He alleged that the name of respondent no. 4 was entered in the electoral roll of the Kishanpole Assembly constituency of Jaipur right from the year 1966 down to the year 1975-77. However, in the year 1974, he made an application before the Electoral Registration Officer of Govindpura constituency, District Bhopal, Madhya Pradesh, for inclusion of his name in the electoral roll of the said constituency. In this application, which was made in the prescribed form, he stated that ‘my name may have been included in the electoral roll for the Kishanpole Assembly Constituency in Rajasthan State under the address mentioned below and if so, I request that the same may be excluded from the electoral roll’.

Respondent no. 4 was accordingly entered in the electoral roll for the Assembly constituency of the Bhopal South for the year 1975, which was finally published on 16 August 1976. On the basis of this registration in Madhya Pradesh, the petitioner contested the election to the Rajya Sabha from Madhya Pradesh and was elected thereto. However, respondent no. 4 came to be appointed the Chief Minister of the Government of Rajasthan on 22 June 1977, without being a Member of the Rajasthan State Legislative Assembly. This office the respondent could not hold beyond a period

of six months

as required by Article

164(4)

of the Constitution

without

having

meanwhile become a Member of the State Assembly. This period was due to expire in December 1977. A bye-election was held in the Chhabra Assembly constituency of the

374

Summary of Cases

State of Rajasthan in November 1977. During this time the name of the respondent appeared not to have been deleted from the Kishanpole constituency and it appeared in the electoral roll of 1975. It was alleged that having been registered as an elector in a constituency in Madhya Pradesh, his name could not have appeared in the electoral roll of any constituency in Rajasthan, in violation of Section 17 of the Representation of the People Act, 1950. An objection was raised against his nomination that he could not be an elector in two places simultaneously.

Further, after the return of the election of 28 November 1977, the Returning

Officer declared that Shri Bhairon Singh Shekhawat of Civil Lines, Jaipur, has been elected to fill the seat for the Chhabra Vidhan Sabha Constituency. Meanwhile, on

16 November 1977, the Secretary to the State Government put up a memo to the Governor of Rajasthan submitting that, as per the Chief Minister’s recommendation (i.e. respondent no. 4), in case of the persons who had not taken the prescribed oath on 18 July 1977, and those who may hereinafter be elected, may make and subscribe oath or affirmation as the case may be before Shri Laxman Singh, who had by then been elected as the Speaker. Governor Shri Raghukul Tilak, on 17 November 1977, approved the said recommendation. In pursuance of this approval, the Secretary to the Government in the Department of Parliamentary Affairs, issued an order on 23 November 1977, and which was also published in the Rajasthan Gazette, Extraordinary of 24 November 1977. The order stated that the Governor has been pleased to appoint Shri Laxman Singh to be the person before whom the Members of the Legislative Assembly shall make oath or affirmation, but significantly enough it omits to say that he shall be the person before whom the Members shall also subscribe the oath. Shri Bhairon Singh Shekhawat made an oath and also subscribed it before Shri Laxman Singh on 19 December 1977. The petitioner contended there was no valid authority conferred on Shri Laxman Singh as far as subscription of the oath is concerned. Even the identity of Shri Laxman

Singh was not shown in the said notification. Thus the respondent has failed to acquire

the membership of the State Assembly, in terms of Article 188 of the Constitution, and he could no more continue to be a minister after the expiry of six months. ISSUES

1. Whether respondent no. 4 could not be an elector in two places at the same time

and he concealed the fact that he is an elector in Madhya Pradesh and further he

could not be and was not an elector in Rajasthan and therefore was not entitled to contest the bye-election of the Chhabra Assembly constituency?

2. Whether the subscription of the oath made before Shri Laxman Singh is invalid and even if it were so, the membership of the respondent no. 4 of the Rajasthan

Legislative Assembly does not depend upon subscription of his oath under Article 188 of the Constitution?

Purshottam Lal Sharma v. State of Rajasthan and Ors

375

DECISION

The court held that elections can be challenged only by election petitions and as far as question of subscription of oath is concerned, it was held that though the order does not state that Shri Laxman Singh is a person before whom oath has to be subscribed, but he was appointed by the Governor to make and subscribe an oath. Therefore, the subscription of the oath made before Shri Laxman Singh is a valid act and cannot become incomplete or illegal because the order authenticated by the Secretary of the Government under Article 166 of the Constitution omitted some words, like ‘subscribe’, out of it. So it was held that it is no fault of the Member taking the seat that the order of appointment was not strictly in accordance with the letter of the Constitution.

SUMMARY OF THE JUDGMENT The petitioner alleged that respondent no. 4 has played fraud on election law and election authorities by not informing them that he was a duly registered elector in a constituency in Madhya Pradesh, and that without having his name deleted from the

electoral roll of Bhopal, he took advantage of an illegal entry in the electoral roll of Kishanpole Constituency. The learned Advocate for the State made following contentions: (i) As far as the objection relating to an infraction of Section 17 of the Representation of the People Act, 1950, is concerned, it cannot be raised after a delay of three years after the name of the respondent appeared in the last and current electoral roll on the Kishanpole Constitution.

(ii) The Constitution envisages that a person can be a Member of two constituencies

simultaneously and has to resign within the prescribed time from one of those memberships if he does not want to lose both. That shows that a person can be registered as an elector simultaneously in two different constituencies, be they in the same State or in different ones.

(iii) According to the amended Article 226 of the Constitution, unless the petitioner

alleges substantial injury or substantial failure of justice, the jurisdiction of Article 226 cannot be invoked. (iv) Article 329 of the Constitution raises a complete bar against the exercise of such jurisdiction in respect of any matter relating to an election which can be challenged only by way of an election petition and two such petitions have already been filed against respondent no. 4. (v) As regards the matter relating to oath, the appointment of Shri Laxman Singh was validly made by the Governor and the action taken in pursuance of the order cannot be invalidated on account of a clerical omission made by the Secretary of the Parliamentary Affairs while issuing an order under Article 166(2) of the

Constitution.

376

Summary of Cases

(vi) As soon as a person is declared elected, he becomes a Member of the Assembly

and the requirement of making and subscribing an oath may be completed at any time thereafter. Making and subscribing an oath is not a condition precedent for becoming a Member of the Assembly. This is a condition only for taking a seat in the Assembly, the breach of which neither invalidates the proceedings nor does it disqualify the elected person from membership.

(vii) The court has no jurisdiction to go into the matter of how the Legislative Assembly conducts its business and Articles 188 to 193 of the Constitution fall under the heading “Conduct of Business’.

While deciding the case the court first decided on the following preliminary issues:

(i) The court after referring to Chief Minister occupies his the petitioner is prima facie show any specific interest or

some cases held, ‘if a person in the position of the office unlawfully, then a case of substantial injury to and per se made out, even though he is not able to prejudice affecting him individually. Therefore, this

court has the necessary jurisdiction to examine whether a writ of quo warranto should be granted in this case or nov’.

(ii) One of the objections of the State was that whether the membership of an

Assembly is an office so as to attract the basic condition necessary for the

issue of a writ of quo warranto. The court held that, ‘a “seat” is something

different from an “office”. The membership of the Assembly, to my mind,

cannot therefore, be equated with an office’. But the court was of the view that this cannot be a ground for holding that this writ petition is not maintainable.

It was further held that, ‘what is in question is not the membership of the assembly but the office of a Chief Minister and against him a writ of quo warranto can certainly lie’.

(iii) It was also urged that no writ can lie against the Governor as he enjoys immunity

under Article 316 of the Constitution. But the court held that even if the writ was not maintainable against the Governor as such, the writ cannot fail on that ground as it survives against the other respondents.

After answering these issues, the court discussed the first issue and made the following observation. Though the court agreed that respondent no. 4 was registered in two constituencies,

in Madhya Pradesh and the other in Rajasthan but it was held, ‘that as laid down under Article 329(b) of the Constitution, an election can be challenged only by way of an election petition ... If the petitioner cannot challenge the electoral roll or if he cannot file an election petition, not being an elector in the Constituency of Chhabra, that itself cannot leave him scope to challenge the election by way of a writ petition.

one

To permit a person to do so will be to violate the provisions of Article 329(b) of the

Constitution’.

On the second issue the court made following observations.

Purshottam Lal Sharma v. State of Rajasthan and Ors

377

In reply to the contention of the State it was held, “Oath allowed the members

to sit in the Assembly and take part in the conduct of the business of the Assembly.

So it is only a condition precedent to entitle the members to sit in the Assembly and conduct its business. It is not an item in the conduct of business protected by Article 212’. Referring to Article 188 of the Constitution, the court held: ... the Article, clearly casts a duty on the Governor, to either himself administer oath

or to appoint a person in that behalf for the purpose. This power should have been,

exercised by the Governor himself and it is not a function of the nature to which

Article 166(2) of the Constitution has any application ... However, I notice from the

record produced by the State Government that an appointment under Article 188 of the Constitution made by Governor is authenticated in the manner provided under

Clause (2) of Article 166. That practice, to me, appears to be not in accordance with the provisions of the Constitution but at the same time, it has prevailed at least in this State right from the year 1952 down to the year 1977. It will not be proper for this Court, at such a distance of time, to hold that any action taken in virtue of such practice is void. I would, however, like to say that in future proper constitutional procedure should be followed in this respect.

After making the above observation, the court held that the order issued by the Secretary, Parliamentary Affairs, that Shri Laxman Singh was appointed under Article 188 of the Constitution,

was

defective

in the sense that it omitted

to authorise

Shri

Laxman

Singh to be the person before whom the Member could subscribe his oath. The court also observed that if a person sits or votes as a Member of the Legislative Assembly, without having complied with the requirement of Article 188, is liable to a penalty of Rs 500 per day to be recoverable as a debt due to the State.

On the question of penalty, learned counsel for the State urged that the prescription

of this penalty clearly shows that the question of membership does not depend upon

the taking or not taking the oath. It was strenuously contended by him that as soon as a person is declared elected to fill a seat in the constituency vide Form 21 and gets the certificate from the Returning Officer in Form No. 22 appended to the Conduct

of Election Rules, 1961, he becomes a Member of the Assembly. Learned counsel for

the petitioner, on the other hand, submits that the Returning Officer only declares the result and the Certificate only shows that the respondent has been duly elected by the Constituency ‘to be’ a Member of the Legislative Assembly. It was urged that the words ‘to be’ means that membership can be acquired only after the requirements of Article 188 of the Constitution have been complied with. On this contention the court held that by mere declaration of result or certificate of election, a person does not become a Member of the Assembly. In spite of all this, if he sits and votes as a Member, he is a mere person (and not a Member) liable to penalty. So the court was left with one issue, i.e. whether the order fulfils the constitutional requirement and whether the omission of the Secretary to carry out in full the order made by Governor can defeat the Governor's order? And the court finally held,

378

Summary of Cases

... on the recommendations of the Chief Minister, the Governor has appointed Shri Laxman Singh, who was the Speaker of the Assembly, as the person before whom

the persons elected to the Assembly were to make and subscribe the prescribed oath

or afirmation. Therefore the subscription of the oath made before Shri Laxman Singh

is a valid act and cannot become incomplete or illegal because the order authenticated by the Secretary of the Government under Article 166 of the Constitution omitted

some words out of it, so long as the Governor purported to have given the Speaker an authority both for administering oath and for allowing subscription thereof before

him ... the appointment of the Speaker as a person before whom an oath can be made, includes in its sweep by necessary implication his appointment as a person

before whom oath shall also have to be subscribed. Subscribing of an oath inheres

in making of an oath. Making an oath implies subscribing it. It is not possible to

accept the contention that after making an oath in the prescribed form, the member

concerned should have approached the Governor with a request that since he has not

authorised any person before whom oath can be subscribed, the member should be permitted to do so before the Governor himself. No such dichotomy in making of an oath and subscribing an oath is conceivable. I, therefore, hold that there has been sufficient compliance with the requirement of Article 188 of the Constitution and

the respondent No. 4 has validly acquired membership, so as to enable him to continue a period of six months ... It is no fault of the appointment was not strictly in accordance

a seat in the Assembly and its resultant in the office of the Chief Minister beyond member taking the seat that the order of with the letter of the Constitution.

Lastly, the writ petition was dismissed and the court held that no case is made against respondent no. 4 for removing the name from the electoral roll of the Kishanpole constituency as long as there is no allegation and proof that the petitioner does not ordinarily reside in that constituency.

COMMENT

Under Article 188 it is necessary that an order stating that a person is appointed by the Governor on his behalf must also state that the person appointed will ‘make and subscribe’ the oath. If the order is not stating the two words, then it is not according to the Constitution. In this case the court allowed the appointment since this practice was followed from a long time and it was not proper to interfere with old orders. And in this case the court did not interfere as the fault was not of the Member. But the court instructed to follow the proper constitutional procedure.

Case 61

R. Krishnaiah v. Union of India and Ors 2003 (6) ALD 897: 2004 (1) ALT 178 DEVINDER GupTa, C. J. AND G. ROHINI, J. Date of Judgment: 27.11.2003

FFACTS-IN-BRIEF

A petition was filed as a Public Interest Litigation (PIL) by the President of Andhra Pradesh Backward Classes Welfare Association questioning the legality and validity of the decision taken by the Governor of the State of Andhra Pradesh to dissolve the State Assembly and requesting the fourth respondent to continue in Office along with his colleagues in the Council of Ministers. The action of the Speaker was alleged to be arbitrary, illegal, and unconstitutional, and in violation of Articles 172 and 174 of the Constitution of India and requiring consequential direction to the appropriate authorities to ensure that the term of the State Assembly renders its full term. Along with the writ petition, miscellaneous petitions were also filed praying that pending the disposal of the writ petition the order of the Governor dissolving the Legislative Assembly be stayed, direction be issued to the first respondent, Union of India, to exercise powers under Article 356 of the Constitution of India and to direct respondent no. 3 not to take further steps towards holding the general elections to the Legislative Assembly. The petitioner felt that it is an unethical, unconstitutional

and illegal dissolution of a Legislative Assembly, which has the effect of depriving the legislator’s rights to represent their constituencies till September 2004. ISSUE Whether the action of the Governor of the State of Andhra Pradesh to dissolve the

State Assembly is arbitrary, illegal, unconstitutional and in violation of Articles 163 and 174 of the Constitution of India?

380

Summary of Cases

DECISION The Governor has well exercised his discretion in accordance with the provisions of Article 163 read with Article 174. The Governor on the basis of material placed before

it has exercised discretion, which is relevant and germane to the action taken by him. It cannot be said that the material was totally irrelevant or extraneous, nor was it

demonstrated before the court.

SUMMARY OF THE JUDGMENT The court found no reason to give an elaborate order to entertain the grievances of the petitioner, that the legislators have been deprived of their right to represent their respective constituencies till expiry of full term of five years. It went on to discuss the other relevant issues.

It was held that Article 174(2) of the Constitution enables the Governor to dissolve

or prorogue the legislature and does not indicate any restrictions on this power. This power is untrammelled by the Constitution and can be questioned only on the ground of want of good faith and abuse of power. It was further held that neither the legislature nor its Members have any constitutional right to have the legislature undissolved till the expiry of the term specified in Article 172(1) of the Constitution.

Learned counsel for the petitioner, however, made elaborate submissions that the dissolution order, dated 14 November 2003, is without application of mind and without examining whether the reasons given by the Cabinet are valid or not. The dissolution is done in a mechanical and ritualistic manner and suffers from constitutional infirmity, and has to be declared as void. Counsel further urged that the grounds and the circumstances for dissolution of the State Assembly by the Governor are subject to judicial review. Where the Cabinet's reasons and grounds being utterly extraneous and irrelevant, the court must exercise its power of judicial review. Questioning the action of the Governor on the grounds that the dissolution order

is the result of non-application of mind and is utterly irrational and irrelevant, counsel further urged that since according to respondent no. 4 there has been a breakdown in the constitutional machinery, the Governor ought to have taken action as envisaged under Article 356 of the Constitution rather than dissolve the Assembly. This is large-

scale abuse of power and the decisions are a colourable exercise of power. POWER OF THE GOVERNOR

While considering the submissions made before it, the court was careful to keep in mind the exercise of power by the Governor under Article 163 of the Constitution and

also the nature and scope of the exercise of power by the President under Article 356 of the Constitution.

R. Krishnaiah v. Union of India and Ors

38]

Under the Constitution, all the powers vested in the President must be exercised

by him on the advice of the Council of Ministers responsible to the Government,

which scheme of the Constitution is reflected in Article 74 of the Constitution. Like Article 74, under Article 163, the Governor of a State is enjoined upon to exercise his functions on the advice of the Council of Ministers with the Chief Minister as the head to aid and advise him except with a difference that Article 163 further requires that any function required to be exercised by the Governor in his discretion will be exercised by him with such aid or advice. The power vested with the Governor either to prorogue the House of the Legislative Assembly of the State or to dissolve it is contained in Article 174 of the Constitution.

This power is akin to the power of the President to prorogue the Houses of Parliament or either House of Parliament and to dissolve the House of the People contained in Article 85 of the Constitution. Though Article 163(1) of the Constitution obliges the Governor to act in accordance with the advice tendered by his Council of Ministers, excepting those matters with respect to which the Constitution requires him to exercise at his discretion and though the giving of a report under Article 356(1) is not so mentioned by the Constitution as a function to be exercised by him in his

discretion, it is obvious that in the matter of the Governor reporting to the President that there has been a breakdown of the constitutional machinery, must necessarily be a matter in which the Governor can possibly act according to the advice of his Council of Ministers. JUDICIAL Review Under Article 356, the words ‘or otherwise contained in Clause (1) of Article 356’

indicate that the President may act on information received from sources otherwise

than the Governor's report. It would also include report by some Union Minister or

advice by Union Council of Ministers and therefore the word ‘shall’ in Article 74(1)

suggests that whether the President has or has not received a report from the Governor,

the President can act under Article 356(1) only in accordance with the advice tendered by the Union Council of Ministers, and if the latter so advises, the President cannot but issue a Proclamation under Article 356(1) in respect of the State concerned.

Therefore, the exercise of the power by the President is conditioned with the words

that if the President on receipt of a report or otherwise is satisfied. It is the satisfaction of the President formed on the basis of the report of the Governor or otherwise that a situation has arisen in which the Government of State cannot be carried in accordance with the provisions of the Constitution that proclamation can be issued. Because of this condition precedent of the satisfaction to be reached by the President, the question of judicial review has already been examined by the Supreme Court, including the choice of discretion by the Governor as to the manner in which it is to be exercised.

382

Summary of Cases

Article 174(2)(b) expressly vests the power of dissolving the Legislative Assembly in the Governor even if that had to be on the advice of the Council of Ministers in the State, but the power to give such advice would automatically be taken over by the Union Government for the purposes of dissolution of the State Assembly when the President assumes governmental powers by a Proclamation under Article 356(1).

Dissolution by the President after the Proclamation would be as good as dissolution

by the Governor of a State whose powers are taken over. In the instant case, the Governor acted on the advice of the Council of Ministers. The advice was rendered by a resolution taken at the proceedings of the 1001st Meeting of the Council of Ministers held on 14 November 2003. The resolution of the Council of Ministers was handed over by the Chief Minister to the Governor.

In the absence of any malafides on the part of the Council of Ministers, who alone

have tendered their advice to the Governor for dissolution of the Assembly and when

the Governor has acted on such collective and unanimous advice of the Council of Ministers, it will be a futile exercise for us even to consider the allegations of malafides levelled by the petitioner against respondent no. 4. The decision of the Governor thus

cannot be faulted with on this ground. On the next question is whether the decision of the Governor accepting the advice

of the Council of the Ministers in dissolving the Legislative Assembly is vitiated due to non-application of mind or on the ground that the reasons contained in the advice of the Council of Ministers are extraneous and irrelevant or that the Governor ought not to have proceeded to accept the advice by dissolving the Legislative Assembly but ought to have exercised his discretion by sending a report to the President to exercise his power under Article 356 of the Constitution by issuing necessary proclamation that a situation had arisen in which Government of State cannot be carried out in

accordance with the provisions of the Constitution.

In this regard, it has to be kept in mind that recording of satisfaction by the Governor on the advice of the Council of Ministers in order to dissolve the Legislative Assembly is not a condition precedent. The Governor has to act on the advice of the Council of Ministers.

UNCONSTITUTIONALITY OF THE DECISION

The Governor acts on the aid and advice of the State Council of Ministers and not in his personal capacity. Having regard to the fact that this is a high constitutional power exercised by the highest constitutional functionary of the State, it may not be appropriate to adopt the same tests that are applicable in the case of action taken by a statutory or an administrative authority. Without trying to be exhaustive, we can say that if the action is found to be malafide or is found to be based wholly on extraneous

and/or irrelevant grounds, it is liable to be struck down. The court cannot question the truth or correctness of the material. It will also not go into the adequacy of the

material. It will also not substitute its own opinion for that of the Governor. Even

R. Krishnaiah v. Union of India and Ors

383

some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action. The ground of malafides takes in, inter alia, situations where the action is found to be a clear case of abuse of power, or what is sometimes called fraud on power—cases where this power is invoked for achieving oblique ends. As such the court will not and is not expected to go into the correctness of the material or its adequacy or inadequacy in arriving at the decision. Enquiry is limited to see whether the material was relevant to the action or irrelevant. The court will not interfere so long as there is some material, which is relevant to the action. Therefore, it was not a case where there was no material before the Governor. There was material before him in the form of a resolution being the advice of the Council of Ministers. The court cannot go into the question about the correctness of the material or that whether it was sufficient or not to enable the Governor to take his decision. The Governor has to act on the said material and has to exercise his own discretion. The Governor accepted the advice of the Council of Ministers on the basis of the material contained in the resolution. Article 163(3) disables courts from inquiring into the very existence or nature or contents of ministerial advice to the Governor and thus bars judicial review so far as the advice given by the ministers is concerned. It does not bar scrutiny of the material on the basis of which the advice is given. The courts are not interested in either the advice given by the Council of Ministers to the Governor or the reasons for such advice. The courts are, however, justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the Governor could have acted on it. In view of the aforementioned discussion, the court did not find it a fit case of judicial interference and for that reason to admit the writ petition and call upon the respondents to answer the allegations. The writ petition was rejected.

Raghu Raj Pratap Singh alias Raja Bhaiya v. State of UP and Ors

385

SUMMARY OF THE JUDGMENT The judgment has discussed the Re: Anandan Nambiar case in detail on which it based the decision. It discussed the privilege of freedom of speech that is available inside

the House. But the court has not touched the contention which was raised by the

petitioners that if right to participate in the House will be not conceded to a detained legislator then democracy will be put in peril, as the Government in minority may put the inconvenient legislators behind bars in the nick of time and prevent them from participating and voting in the House. The court has not discussed this issue considering it as a work of the legislature and not the judiciary. The court observed that so long as Members of the legislature are detained under valid order, it is implied that they cannot enjoy parliamentary privileges and rights so long as they are under detention. The rights and privileges are available to Members

only when they are inside the House.

Freedom given to the citizen under Article 19(1) is separate to, and independent

of, the rights and privileges of the Members of the House referred to under article 105 or 194 of the Constitution. Whatever rights of speech have been guaranteed under

Article 194(1) or under Article 105(1), the same is to be exercised by the Member

inside the respective House. In fact, that is the plain language of those articles and it is for this reason that protection has been given to the Member from any criminal or

civil liability for anything said in the House.

Case 62

Raghu Raj Pratap Singh alias Raja Bhaiya v. State of UP and Ors 2003 (3) AWC 2106; MANU/UP/0237/2003 JAGDISH BHALLA AND KHEM KaraN, J. J. Date of Judgment: 13.03.2003

F ACTS-IN-BRIEF

In this case, three writ petitions by Raghu Raj Pratap Singh, Dhananjay Singh and Vimla Devi were heard and decided together. All the three petitioners were the electorate of Kunda constituency and were eligible to cast vote for electing a Member of the Legislative Assembly. Petitioner Raghu Raj Pratap Singh was in judicial custody under the Prevention of Terrorism Act, 2002, and other criminal cases, including cases under the provisions of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act. He filed a writ petition to participate in the State Legislative Assembly Session and similar relief was sought by the others. ISSUE

Does a Member of a legislature detained under a preventive detention law have any right to participate in the proceedings of the House? DECISION So long as the legislators are detained under valid detention order, they have no right

or privilege to participate in the session of the House.

Case 63

Raj Narain Singh v. Atmaram Govind and Anr MANU/UP/0151/1954: AIR 1954 All 319 SAPRU AND MukerjI, J. J. Date of Judgment: 07.05.1953

FACTS-IN-BRIEF

The applicant, Shri Raj Narain, was a Member of the UP Legislative Assembly and was returned on the Praja Socialist Party ticket. He was the leader of the Praja Socialist Party, which was the chief opposition party in the House. In that capacity he had the distinction of functioning as the Leader of the Opposition. On 4 March 1953, after Question Hour, Shri Raj Narain requested the Chair to allow him to move a motion for adjournment of the House to discuss a matter of urgent public importance, namely the forcible removal by the police of three teachers who were on hungerstrike from the semi-circle opposite the Council House. It would seem that prior to the discussion relating to the adjournment motion, Shri Narain Dutt Tiwari, a Member of the Praja Socialist Party, also requested the Speaker to allow him to move, under Rule 221, for the suspension of Rule 71(3) of the Rules of Procedure of the Assembly requiring before an adjournment motion is allowed 1/12th of the total number of the Members of the House to rise in support of the adjournment motion, where objection to its discussion is raised. After the Question Hour, Shri Raj Narain Singh was allowed by the Speaker to make a short statement about the matter and to ask for leave of the House to move his adjournment motion. The applicant thereafter rose in his seat and after a short statement asked for the leave of the House. Objection to leave being granted was taken by the Minister for Home Affairs, Shri Sampurnanand. On that being done, the Speaker asked the Members who were prepared to support the motion to rise in their places so that he might be able to find out if the requisite number of thirtysix Members was there to support the motion for leave. At that stage there was an

Raj Narain Singh v. Atmaram Govind and Anr

387

intervention by another Member, Shri Narain Dutt Tiwari. He requested the Speaker to give his consent under Rule 221 to enable him to move the suspension of Rule 71 (3). The Speaker was not prepared to allow a consideration of the question of suspension of the rule under Rule 221 as it was a day fixed for the voting of the demands. An assurance was, however, given by the Speaker that permission to move the motion for the suspension of the rule would be given by him at 5 o'clock in the evening. Meanwhile, he asked the Members supporting the motion for leave to discuss the motion to rise in their places. The applicant thereafter requested the Speaker to take up the motion of Shri N. D. Tiwari first as his motion would become infructuous if the permission to suspend the rule was not given then and there. The Speaker was not prepared to do so. The applicant was, however, insistent that the decision on the

question of the motion of Shri Narain Dutt Tiwari should be given in accordance with their desire as the party, of which he was the leader, had only twenty-two members and

could not get thirty-six members to rise in their seats. The Speaker pointed out that it was not possible for him to comply with his request as it was a day fixed for voting

demands. He further directed the applicant not to obstruct the business of the House and observed that he could not understand how he would be able to get a majority to support his motion if he could not get the support of even thirty-six members to rise in support of his motion for leave. The applicant again made a request with folded hands for the immediate consideration of the motion for the suspension of the rule, but the Speaker did not grant it. On about three occasions, the applicant was asked by the Speaker to sit down, but as he was not prepared to take notice of even the points of order raised, the Speaker asked him to withdraw from the House. The applicant did not comply with that direction. Thereafter, the Speaker drew the attention of the House to the

defiant attitude adopted by the applicant and ordered the police to remove him from the Assembly Hall by using the minimum amount of force necessary for that purpose. On being so ordered, the police forcibly removed the applicant by bodily lifting him from

the Assembly Hall (he having squatted on the floor of the House).

Similar

scenes occurred in the case of two other Members, namely Shri Ram Narain Tripathi and Shri Jagannath Mal. They were both ejected forcibly from the Hall. It may be mentioned that while Shri Jagannath Mal used language which cast reflection on the impartiality of the Chair, there was at that time no allegation that the applicant had used any language attributing any bias to the Chair. After Shri Raj Narain Singh and Shri Ram Narain Tripathi had been removed, the Speaker drew the attention of the House to the intransigent attitude that they had adopted and observed, in his opinion, that their conduct constituted a breach of the privileges of the House. He did not think that the incident should be ignored. He referred the matter to the Privileges Committee and suggested that the Committee should examine and investigate and report on the conduct of the Members against whom action had been taken in the interests of order. The Privileges Committee met on the 7, 17, 24 and 26 March 1953 and submitted its report. On 17 March,

388

Summary of Cases

the applicant was called upon by it to state whether he was guilty of a breach of privilege of the House. He denied that he had been guilty of any breach. On the recommendation of the Privileges Committee, the following resolution was, however,

passed after discussion by the House:

That this House accepts the report of the Privileges Committee on the question of breach of Privileges, by Sarvashri Raj Narain, Ram Narain Tripathi, and Jagannath

Mal & resolves that Sarvashri Raj Narain, Ram Narain Tripathi and Jagannath Mal are guilty of breach of privileges of this august House and suspends Shri Raj Narain until the adjournment of the present sitting and Shri Jagannath Mal until the prorogation of this session from the services of the House and taking into consideration the statement of Shri Ram Narain Tripathi which he had made in the House today does not deem it fit to pass any orders in his case.

ISSUES

1. Whether an erroneous decision by the Speaker or the House in respect of a breach of privilege can be the subject matter of scrutiny before the high court? 2. Whether the impugned resolution, if it be regarded as law, is void by virtue of Article 13(2) for its inconsistency with Article 20(2)?

DECISION 1. There is no legal remedy open to a Member if his rights get affected by something done within the walls of the legislature.

2. The resolution suspending the applicant from the House was a thing done ‘within che walls of the House’. Of a matter concerning its proceedings, the State Legislature is the sole judge. The matter in issue is a proceeding of the House and, therefore, ‘it is part of the course of its own proceedings and subject therefore to its exclusive jurisdiction. Both Article 212 and the authorities are so decisive

and conclusive that there is no room for argument so far as this part of the case is concerned

3. Article 194(3) is not governed by Article 20(2).

SUMMARY OF THE JUDGMENT SAPRU, J. This is an application under Article 226 of the Constitution. The applicant, Shri Raj Narain Singh, is a Member of the UP Legislative Assembly having been returned on

the Praja Socialist Party ticket, which is the main opposition party in the Legislative

Assembly. He has the distinction of being the parliamentary leader of that party and,

as such, is the Leader of the Opposition. The opposite parties to this application are the Speaker of the Assembly, Shri A. G. Kher, and the Secretary, Shri Kailash Chandra

Raj Narain Singh v. Atmaram Govind and Anr

389

Bhatnagar. The reliefs sought by the applicant are that the court may be pleased (i) to

declare that the resolution of the UP Legislative Assembly, dated 30 March

1953, is

void on the ground of inconsistency with the provisions of Part III of the Constitution; (ii) to call for the records of the UP Legislative Assembly proceedings, dated 30 March

1953, the proceedings of the privileges Committee dated the 7, 17, 25 and 26 March

1953 and quash the resolution, dated 30 March 1953; (iii) to issue a suitable order, writ

or direction asking the opposite parties to expunge the abovementioned resolution of the said Assembly, dated 30 March 1953, from the proceedings of the UP Legislative Assembly; and (iv) to order the payment of costs to the petitioner. While indicating the lacunae in the petition, that the prayer for relief in this application has not been properly framed and does not clearly indicate the exact nature of the relief sought, and emphasising that a party seeking relief under Article 226 of the Constitution should precisely state what writ, order or direction it is that he seeks for redressing a wrong which affects him personally, Sapru, J., after making preliminary observations, proceeded to hear the matter on merit for the reason that the learned Advocate General stated that the opposite parties do not wish to take their stand on the technical ground that the reliefs are not properly framed. It is contended by learned counsel for the applicant that the House turned down his request to be represented by counsel. No charges were supplied to him even on his asking for them. The Committee was not, however, unanimous as regard to the recommendation for action to be taken against the intransigent Members, there being majority and minority reports. It was further contended that the impugned resolution is void and the order passed upon it unconstitutional and should be declared to be so as the effect of it is to inflict a punishment for the second time upon his client for an offence for which he had been punished previously by the Speaker as the President of the House. It is contended that a resolution relating to privileges has the effect or force of law and is in any case subject to the provisions of Article 20(2) of the Constitution which rules out a second punishment for an offence for which a person has been prosecuted and punished. It is further argued that the reference to the Committee of Privileges by the Speaker of a matter which could be dealt with by the standing orders

or rules of the House was wrong and contrary to established parliamentary practice. It constituted, indeed, the creation of a new privilege for the House. Before considering the various arguments advanced in this case, Sapru, J., examined the law relating to parliamentary privileges in England and concluded, in brief, that each House in Britain possesses: (i) the right of being the exclusive judge of the legality of its own proceedings; (ii) the right to punish its own Members for their conduct in Parliament; and (iii) che right to settle its own proceedings. It is settled law that the House of Commons is not responsible to any external authority for following the rules it lays down for itself for the transaction of its own business. It is open to the House to depart from them at its own discretion. Even where the procedure of the House or the right of its Members to take part in its proceedings is dependent on statute—and this is important—the House is immune from scrutiny by courts as to the manner in which it interprets them. It follows from this that for such purposes the House

390

Summary of Cases

can practically change or ‘supersede’ the law. [For the principles enunciated above reference may be made to the following cases: Paty’ case, (1704) 24 D Rayn 1105 (F);

(1811) 14 East 1 at p. 145 (C); (1839) 9 Ad & E 1 at p. 14 (D); Sheriff of Middlex’s case, (1840) 11 Ad & E 273 (G) and (1884) 12 QBD 271 (B).]

Much of the argument in this case, on behalf of the applicant, was based upon the assumption that an erroneous decision by Mr Speaker or the House in respect of a breach of privilege can be the subject matter of scrutiny by a court of law. While responding to the issue, Sapru, J., observed that there is nothing startling in the proposition that finality attaches, where under cover of it no new privilege is created by the House, to a decision of the House in respect of a matter relating to its privileges. On this part of the case, he referred to the following observations of Stephen J. in Bradlaugh v. Gossett: It would, as I have already said, be wrong for us to suggest or assume that the House acted otherwise then in accordance with its own view of the law; and, as we know not what that view is, nor by what arguments it is supported, we can give no opinion upon it. I do not say that the resolution of the House is the judgment ofa Court not subject to our revision; but it has much in common with such a judgment. The House of Commons is not a Court of justice; but the effect of its privilege to regulate its own internal concerns practically invests it with a judicial character when it has to apply to particular cases the provisions of Acts of Parliament. We must presume that it discharges this function properly and with due regard to the laws, in the making of which it has so great a share. If its determination is not in accordance with law, this resembles the case of an error by a judge whose decision is not subject to appeal. There is nothing startling in the recognition of the fact that such an error is possible.

If, for instance, a jury in a criminal case gives a perverse verdict, the law has provided no remedy. The maxim that there is no wrong without a remedy does not mean, as it

is sometimes supposed, that there is a legal remedy for every moral or political wrong. If this were its meaning, it would be manifestly untrue. There is no legal remedy for the breach of a solemn

promise

not under seal and made without consideration;

nor for many kinds of verbal slander, though each may involve utter ruin: nor for oppressive legislation, though it may reduce men practically to slavery; nor for the worst damage to person and property inflicted by the most unjust and cruel war. The maxim means only that legal wrong and legal remedy are correlative terms; and it would be more intelligibly and correctly stated, if it were reserved, so as to stand, ‘Where there is no legal remedy, there is no legal wrong’.

He also referred to a comparatively recent judgment in Rex v. Graham-Campbell (1935

1 KB 594 (H)]. That case, which related to the sale of liquor in the precincts of the

House of Commons without a licence, goes to the extreme length of holding that no court of law has the jurisdiction to interfere with the management in the refreshment department of the House as that was a matter which fell within the internal affairs of the House. On the question whether it was wise and statesman-like to pursue the matter after Shri Raj Narain Singh had been ejected from the House, Sapru, J., thought that

Raj Narain Singh v. Atmaram Govind and Anr

39

it would be improper for him to express any opinion. It was, however, observed that obviously this court is not in any sense whatever a court of appeal or revision against the legislature or against the rulings of the Speaker who, as the holder of an office of the highest distinction, has the sole responsibility cast upon him of maintaining the prestige and dignity of the House. Parliamentary Government requires for its successful working a spirit of reasonableness and accommodation on the part of those, whether belonging to a majority or minority party, who have been elected by the people to be their chosen representatives in our legislatures. A perusal of Article 121 would show that the founding fathers have protected the Judges from criticism in Parliament by laying down that there shall, except on a motion of misbehaviour, be no discussion in Parliament on the conduct of any Judge or court of law having jurisdiction in any part of India in the exercise of his or its judicial functions. Rule 32 of the Rules of Procedure of the UP Legislative Assembly relating to the form and content of questions lays down in Clause (10) that there shall be in the

House no reference to the conduct of any Judge or court of law having jurisdiction in any part of India in the exercise of his or its judicial functions. Rule 79 lays down, as one of the conditions of the admissibility of the resolution, that a resolution shall not

relate to any matter which is under adjudication by a court of law having jurisdiction in any part of India. It is right and proper that judicial authorities should be free from criticism so far as their judicial work is concerned in the State Legislature or Parliament. Correct etiquette, therefore, requires that the judiciary on its part too

should refrain from comments in regard to a matter which was exclusively within the jurisdiction and authority of the Speaker and the State Legislature. For this reason, | think it is undesirable that I should express any opinion on the controversy, which led to the unfortunate incident and the mode in which it was dealt with by the Speaker and the State Assembly. With reference to the argument of learned counsel for the applicant that the Speaker had no authority to refer, in view of the well-established practice in British Parliament, matters which can be dealt with under the standing orders to the Committee of Privileges, thus, the reference to the Committee of Privileges was wrong and consequently the resolution based thereon was also void in so far as it affects the applicant, Sapru J. observed that I feel no difficulty in coming to the conclusion that the procedure followed in British Parliament by the Speaker and the House in dealing with Members who are guilty of disorderly behaviour is exactly the same as that contended for by Shri Iqbal Ahmad (counsel for the applicant). It does not follow from the admission of this fact that Mr Speaker and the State Legislature were bound to follow that procedure in every detail, howsoever well established and reasonable it might seem to those who feel an instinctive respect for the conventions and traditions which that great House has built for itself. After all there is nothing sacrosanct about that procedure. It was further observed that the Indian legislatures have been empowered to frame Rules of Procedure under Article 208 of the Constitution. Rule 189 invests the Speaker with the authority to deal with cases of disorderly behaviour. The Speaker

392

Summary of Cases

has under Clause (c) of that rule, the power to carry out his order at any stage of the proceedings. Undeniably, the Speaker has been invested with the power under Rule 67

to refer any matter he chooses to the Committee of Privileges. Rule 67 of the Rules

of Procedure of the State Assembly makes it abundantly clear that, notwithstanding

anything contained in these rules, the Speaker can refer any question of privilege to the Committee of Privileges for examination, investigation or report. Whether

the

question was one of privilege or not was a matter solely for the Speaker to decide. Even

if there had been no express rule such as is to be found in the Rules of Procedure of

the UP Legislative Assembly, this court has no jurisdiction to issue a writ, direction or order relating to a matter, which affected the internal affairs of the House. The Speaker is the highest functionary of the House and so acts for it. The other officers who acted under his directions are recognised officers of the State Assembly and they executed his orders. The House had a right to decide on the subject matter

and the officers gave effect to its orders. Thus, both the Speaker and the other officers are protected from scrutiny by a court of law for what was done in the House. Clearly, the matter in issue is a matter concerning the State Legislature. ‘The resolution suspending the applicant from the House was a thing done ‘within

the walls of the House’. Ofa matter concerning its proceedings, the State Legislature

is the sole judge. The matter in issue is a proceeding in the House and, therefore,

‘it is part of the course of its own proceedings’ and subject therefore to its exclusive

jurisdiction, Both Article 212 and the authorities are so decisive and conclusive that

there is no room for argument so far as this part of the case is concerned. The complaints which Sir Iqbal Ahmad (counsel for the petitioner) has brought before the court, whether justified or not, are ofa procedural character. The resolution of the House does not go beyond a matter of procedure. While there is no doubt that the right ofa Member to continue to represent his constituency in Parliament gets

affected by his suspension for whatever period, yet even on that assumption there is no legal remedy open to a Member if his rights get affected by something done within the walls of the legislature. Apart from the cases to which reference has been made, Article 212(2) of the Constitution is decisive on this point. Further, on an another issue raised by the petitioner, it was contended that whatever may be the position regarding the law relating to privilege in Britain, the position in our country is vastly different for we have what Lord Pirkenhead would have called a ‘controlled Constitution’ embodied in a written instrument by the founding fathers.

This Constitution has conferred certain fundamental rights. One of those rights is the

right not to be punished second time for the same offence. Article 20(2) which lays down that ‘no person shall be prosecuted and punished for the same offence more than once’ governs all the parts of Article 194, including the one which has reference to the powers, privileges and immunities of the State Legislature and its Members. It is argued that the resolution in question insofar as it punished the applicant a

second time for an offence for which he had been punished previously by the Speaker

is: (i) if it be regarded as a law, void by virtue of Article 13(2) for its inconsistency

with Article 20(2): and (ii) if ir be rreated as the decision of the Stare Teoislarure in

Raj Narain Singh v. Atmaram Govind and Anr

393

its capacity as a court which can punish breaches of privileges, illegal for the reason that it embodies a decision which has the effect of punishing the applicant a second time for the same offence on the same set of facts. The assumptions underlying the arguments on this part of the case are that (i) Clause (3) of Article 194 is controlled

by Article 20(2); (ii) that the resolution amounted to a law within the meaning of that word in Article 13(2); (iii) that alternatively in any case it was the decision of

a court which could be set aside by this court; (iv) that the applicant was in point of fact punished a second time for the offence; (v) that the word ‘offence’ includes a parliamentary offence; (vi) that the words ‘prosecute and punish for the same offence’ do not limit the bar of what American Jurists would call ‘double jeopardy’ and purely criminal actions only. Supru, J., dealt with these contentions in seriatim. On the question whether Article 194(3) is subject to the provisions of the Constitution, and, if so, whether Article 20(2) governs it, it was observed that Asticle 194 is divisible into four distinct clauses and that its form is such as to lead to the irresistible inference that only the first clause has been made subject to the provisions

of the Constitution. I cannot understand why if it was intended by the legislature that

part (3) of Article 194 or the whole article should be subject to Article 20(2) or to

any other provision of the Constitution, the frame of the article should not have been different. The founding fathers could have easily made it clear that all the parts and not

only Clause (1) of the article would be subject to the provisions of the Constitution.

It is not as if the founding fathers are silent as to the applicability or otherwise of the other parts of the Constitution. They have specifically mentioned in Clause (1)

that freedom of speech shall be subject to the provisions of the Constitution. By necessary implication, therefore, they must be deemed to have intended by omitting

any reference to the other parts of the Constitution that the other clauses shall not be governed by the other provisions of the Constitution. A clear distinction has been

made between the language of Article 194(1) and Article 194(3) and that the fact

cannot be ignored.

It was further contended that it is only where the founding fathers had made

any specific provision, for a matter dealt with by an article of the Constitution, that they used such expressions such as ‘subject to the provisions of the Constitution or ‘notwithstanding anything to the contrary’. It is argued that where no provision

has been made by the Constitution in respect of any matter dealt with by the

Constitution, every article of the Constitution must be construed with reference to

the other articles so as to enable a construction to be placed on the Constitution which produces the greatest harmony and the least inconsistency between different parts of the Constitution. While admitting that in the case of an ambiguity or inconsistency between the

different parts of the Constitution, the courts should look into all the parts of the Constitution and harmonise them to the utmost extent possible, Sapru, J., observed that I do not think that we would be justified in going so far as to say on the basis

of speculation that words like ‘subject to the provisions of the Constitution’ have been used only where a matter dealt with by an article is also the subject matter of

394

Summary of Cases

some other article. It strikes me that whenever the founding fathers intended that a provision of the Constitution, whether it be described as fundamental or not, should

govern it they said so. Incidentally, it may be pointed out that the Fundamental Rights

conceded by our Constitution have not been conceived of as ‘natural, sacred and

inalienable’ rights, which may not be changed at all like the Law of the Medes and Persians, but as rights which can be changed in the exercise of the constituent powers conceded to Parliament by a procedure which is less rigid than that reserved for an amendment of certain other parts of the Constitution.

In any case, the use of the words ‘subject to the provisions’ ‘only’ in connection with the Right of Freedom of Speech and its omission from the other parts of the article cannot be ignored. The way in which the whole article has been framed clearly indicates, to my mind, that the Fundamental Rights, which they were conferring on

the Houses of legislature, were not to be subject to or governed by any other part of

the Constitution. It must be remembered that Article 194(3) occurs in a later part

of the Constitution

than Article 20(2). Both are parts of the Constitution, having

been enacted by the founding fathers. The fact that a provision is either described as fundamental or occurs in the part relating to Fundamental Rights does not ipso facto make it govern other parts of the Constitution. Both Article 20(2) and Article 194(3) find a place in the Constitution and it cannot be assumed that an article described

as fundamental was intended to govern not only laws made by the legislature but the various other parts of the Constitution, even where the context indicates that it was

not intended to apply to them,

Had the intention been to make Article 194(3) subject to the other provisions of the Constitution, the founding fathers who knew what they had said previously about Article 194(1) would have said so clearly. Thus, it will be unsafe to accept as

correct the argument that Article 194(3) must be deemed by necessary implication to be subject to the other parts of the Constitution either on the basis that words

such as ‘subject to the provisions’ have been used only where some specific provision having been made, it was intended to make it clear that that Article would also operate so far as that article is concerned or on the assumption that the whole article and not only Clause (3) has, notwithstanding the frame of the article and its divisibility into distinct parts, been made subject to the Constitution. Why the founding fathers

reserved freedom of speech, which is vital for unfettered parliamentary discussion for

special treatment, I cannot say. It would be outside the scope of the question before us to speculate into the possible reasons for that special treatment. I am unable to hold that it was necessary for the founding fathers to use some such words as ‘irrespective of the Constitution’ if the article was not to be subject to the Constitution.

It was also contended on behalf of the petitioner that the view that Article 194(3) is not subject to the Constitution is bound to lead to the anomalous position that as long as the Houses do not define their privileges by a law enacted by themselves, their

privileges, being the same as those of the British Parliament, will not be subject to rhe operation of either Article 20(2) or to any other provision of the Constitution, while a

law nassed relating to them shall be subiect to rhe provisions of the Constitution and

Raj Narain Singh v. Atmaram Govind and Anr

395

thus liable to be declared void under Article 13(2), on the ground of inconsistency with it. It could hardly have been the intention of the founding fathers that during the interim period when privileges have not been enumerated by the statute itself, privileges should not be subject to the Constitution. While negating the contention, Sapru, J., opined that in declaring that the privileges, etc. of the State Legislature shall be the same as those of British Parliament, until so otherwise determined by legislation, the founding fathers followed the precedents created for them by the framers of both the British North America Act and the Australian Act. It was further observed that possibly in laying down that the powers, privileges and functions assigned to each House can only be changed by law if they want them to be somewhat different from the British House of Commons, the founding fathers were enacting a safeguard which would make them subject to the provisions of the Fundamental Rights guaranteed by the Constitution. It is on this basis that they did not think it necessary to make them until they were so changed by law, subject to the other parts of the Constitution. For the privileges of the House of Commons are well known and can be easily ascertained from any standard work on the Constitution. Another argument that was advanced was that from the nature of our Constitution

itself, which is a republican one, it could not have been contemplated by the framers of the Constitution that all the powers, privileges and immunities enjoyed by the House of Commons shall be enjoyed by the State Legislatures. It was also pointed out that the State Legislatures have not been conceded the right to provide for the due composition of its own body, as that is a right which has been specifically and separately dealt with in Part XV, Articles 324 and 329 of the Constitution, the powers of superintendence, direction and control of elections having been vested in an Election Commission. Freedom of speech is the subject matter of a separate article, viz. Article 19(a) of the

Constitution. The right to prohibit publication of its proceedings is dealt with under

sub-Article (2) of Article 194.

It was further contended that some of the privileges of the House of Commons can have no meaning with reference to the Indian Constitution, our being a republican one. There are others again which have either become obsolete or meaningless in Britain or which Parliament has given up itself. For example, it is pointed out that the right to provide for the due composition of its own body has been modified by parliamentary enactments in Britain which give authority to courts of law to adjudicate on disputed questions of law. In our own Constitution, Articles 324 and 329 deal with election matters. Now, on this basis, it is urged that the only rights, which had not been the subject matter of definition in previous or subsequent articles by the Constitution are the rights to regulate its own proceedings and the right to enforce observance of its privileges by fine, imprisonment or expulsion. On the basis of these facts, it is argued that it is only where specific matters have been dealt with by some other parts of the Constitution that the founding fathers made a mention of the fact that a particular article or clause was subject to the provisions of the Constitution, it being understood that the other articles are to be read in a connected manner, all being subject, at all events, to the Fundamental Rights conceded to its citizens or persons by the founding fathers.

396

Summary of Cases

While refusing to accept the argument, it was stated that it must not be overlooked

that Part VI occurs in a later part of the Constitution than Article 20(2). The fact that

a particular right has been classified as ‘fundamental’ cannot make it paramount over an article in a part of the same Constitution framed by the same founding fathers and the same Constituent Assembly. Fundamental Rights cannot govern, except of course where it is specifically or by implication intended that they should, various other parts of the Constitution. There is a clear distinction between the language of

Article 194(1) and Article 194(3). The substantive provision in Article 194(3) is that

the privileges, etc. of the State Legislature shall be, unless determined otherwise by the legislature, the same as those of British Parliament. It would be contradictory to

hold that Clause (3) can be controlled by Clause (1). It would be to subject them to a

limitation, which it was intended should not apply to them.

As regards the argument that the law when made relating to privileges would be

subject to the Fundamental Rights and thus subject to Article 13(2), whereas privileges as conferred by the Constitution with reference to the British House of Commons

would not be so subject, the answer is that the founding fathers contemplated a clear distinction between the two periods, viz. (i) until so defined and (ii) when so

determined. In one case the privileges well known to be possessed by the House of Commons were being conferred by the Constitution. In the other case, the privileges made were to be laid down by the authority of the State Legislature. Clearly, the

founding fathers did not desire a law so made not to be subject to some safeguard.

Support was sought to be derived to buttress the argument enunciated above

from a decision of the Supreme Court in what has come to be known as the Blitz case: Gunupati Keshavram Reddy v. Nafisul Hasan and State of Uttar Pradesh (Ori.

Jur. Petn. No. 75 of 1952 (SC) (I)]. In that case, one Shri Homi Mistry was arrested

in Bombay under a warrant issued by the Speaker of the UP State Legislature. The

warrant of arrest was signed by the Speaker and he was brought and kept in detention in the Speaker's custody at Lucknow. On his applying for a writ of habeas corpus,

Patanjali Sastri, C. J., directed his release as Shri Mistry had not been produced before

a Magistrate within the time allowed. It was held that the term of Article 22(2) was

peremptory and admitted of no doubt.

While distinguishing the same, it was observed that all that I understand that case to lay down is that any person arrested, whatever be the nature of that arrest

and whichever be the authority on whose behalf he has been arrested, must not be

confined in custody beyond the period indicated in Article 22(2) without the authority of a Magistrate. The question of the extent of the privileges enjoyed by the State

Legislature or the Speaker as representing the State Legislature and their subjection to Fundamental Rights was not specifically dealt with by his Lordship and I cannot

read him to have laid down that Article 194(3) is subject to the other provisions of

the Constitution. Strong reliance was placed on the case of U Aye v. U Chit Hlaing [AIR 1941 Rang 151 (J)]. This was a case of a Member of the Burma legislature who, on accepting a commission in the armed forces of the Crown, was declared to have vacated his seat

Raj Narain Singh v. Atmaram Govind and Anr

397

by the Speaker of the Assembly. The high court intervened holding that it was beyond the powers of the Speaker to decide whether the applicant had or had not continued to be a Member of the House of Representatives of the Burma legislature. Clearly, in that case, the Speaker had no power to make that declaration for he was not in any sense a court. In any event, this was a case of the legislature of a State, which was not fully self-governing and can be no authority for a case like this where we are dealing with a ‘controlled’ legislature possessed of all the privileges, which the British House of Commons possesses. Thus, he opined that Article 194(3) is not governed by Article 20(2) of the Constitution.

On the question of the exact nature of a resolution of a House of legislature, relying

on Stockdale v. Hansard (D), it was observed that for legislation both under the British

Constitution and the Constitution as it obtains in UP State three parties are necessary. In our State the parties are the two Houses of the legislature and the Governor. A resolution is an expression of the opinion of the House or at best a recommendation

on any particular matter. It has not the status of a law. A declaration or resolution of either House, as Dicey points out on the basis of Stockdale v. Hansard (D), is not in

any sense a law. For no resolution of the House of Commons ordering or approving of a Member’s act could be pleaded by a person as a legal defence to proceedings, either civil or criminal, against him [see “(1839) 9 Ad and E 1 (D)]. Elaborating further on

the point, he rejected the argument that the resolution the provisions of Article 20(2) or a judgment of a court courts of justice to be. He opined that the notion of the no application here and it is unnecessary to discuss the

in this case is a law subject to of justice such as we conceive High Court of Parliament has matter at any length.

For the argument that the word ‘law’ has been used in Article 13(3) in the widest sense possible as including any ordinance, order, bye-law, rule, regulation, custom or

usage having in the territory of India the force of law. It was opined that even having regard to that very wide language, the resolution cannot be accurately described as a law for it is a mere expression of opinion which can have a binding effect in cases of privileges. Whatever be the position of a resolution of a House, whether it be looked upon as a law or as a judgment of a court or the expression of an opinion, which may practically have the effect of law, the question still remains whether the resolution complained

against awarded a punishment for an offence within the meaning which must be

attributed to those words in Article 20(2) of the Constitution. After examining various

arguments advanced by the petitioner, Sapru, J., stated that on the facts, which have

been placed before us, I am unable to hold that the action of the Speaker in ordering the applicant to withdraw from the House was not in the nature of a punishment for the parliamentary offence of disorderly behaviour. However, he opined that the

essential elements of the word ‘offence’, as used in Article 20(2), have not been made

out in such cases. For this reason, he expressed his inability to hold that the case assuming it to be one of double punishment for a parliamentary offence which is nowhere defined in the rules is covered by Article 20(2) of the Constitution.

398

Summary of Cases

Thus, while indicating his views on various parts of this case, Sapru, J., made it

clear that the basis of his judgment is the view that Article 194(3) which relates to

Fundamental Rights of each House of the State Legislature, known as powers, privileges and immunities, is not governed by the Fundamental Rights conceded to a citizen or person under Article 20(2) of the Constitution. The important point which has to

be remembered, according to him, is that the privileges, etc. of the State Legislature have been defined for, at all events, until such period as the legislature determines otherwise by law to be the same as those of the British House of Commons. The article itself is in the nature of a charter of Fundamental Rights for the State Legislature. To subject this article, when it is well known that even in defiance of a statute, the British Parliament can, by placing its own interpretation, prevent a Member from taking the parliamentary oath he was entitled to, would be to whittle them down. This would be,

in his opinion, contrary to the intentions of the founding fathers, regard being to the necessary implications of the scheme of Article 194(3).

Mukerji, J.

Mukerji, J., in his separate, but concurrent judgment has agreed with the conclusions reached by Sapru, J. Thus, the petition was dismissed with costs.

Case 64

Raja Ram Palv. The Hon'ble Speaker, Lok Sabha and Ors (2007) 3 SCC184 Y. K. SABHARWAL, C. J., K.G. BALAKRISHNAN, C. K. THAKKER R. V. RAVEENDRAN AND D. K. Jain, J. J. Date of Judgment: 10.01.2007

FACTS-IN-BRIEF

A private channel had telecast a programme on 12 December 2005 depicting ten Members

of Parliament of the House of the People

(Lok Sabha)

and one of the

Council of States (Rajya Sabha) accepting money, directly or through a middleman,

as consideration for raising certain questions in the House or for otherwise espousing

certain causes for those offering the lucre. This led to extensive publicity in the media. The Presiding Officers of each House of Parliament instituted inquiries through separate Committees. Another private channel telecast a programme on 19 December 2005 alleging improper conduct of another Member of Parliament of Rajya Sabha in relation to the implementation of Member of Parliament Local Area Development (MPLAD) Scheme. This incident was also referred to a committee.

On the basis of the report of the inquiry committees, resolutions were passed in the respective Houses to expel those Members. In the present petition, the constitutional validity of the said expulsions was challenged. ISSUES

1. Does this court, within the constitutional scheme, have the jurisdiction to decide the content and scope of powers, privileges and immunities of the legislatures and its Members. 2. If the first question is answered in the affirmative, can it be found that the powers and privileges of the legislatures in India, in particular with reference to Article 105, include the power of expulsion of their Members.

400

Summary of Cases

3. In the event of such power of expulsion being found, does this court have the jurisdiction to interfere in the exercise of the said power or privilege conferred on Parliament and its Members or Committees and, if so, is this jurisdiction circumscribed by certain limits.

DECISION 1. The question whether there exists power of expulsion is a matter of interpretation of the constitutional

provisions,

in particular Articles

105(3)

and

194(3),

on

which the final arbiter is the Supreme Court and not Parliament. 2. The power of expulsion can be claimed by the Indian legislatures as one of the privileges inherited from the British House of Commons through Articles 105(3) and 194(3).

3. The Supreme Court is the final judge of all acts purported to be done under the authority of the Constitution.

3. Judicial review of exercise of powers, privileges and immunities by the Indian legislatures is permissible, subject to restrictions contained in other constitutional provisions such as Articles 122 and 212.

4. Article 122 and 212 immunise parliamentary proceedings from judicial scrutiny only on the ground of ‘irregularity of procedure’ but not on ‘illegality or

unconstitutionality’.. Thus, the Supreme Court has jurisdiction to examine the procedures adopted by Parliament in exercise of its expulsion power to findif it is vitiated by any illegality or unconstitutionality.

SUMMARY OF THE JUDGMENT Y. K. Sabharwal, C. J. (For himself, K. G. Balakrishnan, D. K. Jain, J. J.) The petitioners, in the instant case, have questioned the existence of the very power of expulsion with Parliament. According to them, all the powers, privileges or immunities,

as vested on the date of commencement of the Constitution of India, in the House

of Commons of Parliament of the United Kingdom, had not been inherited by the legislatures in India under Article 105(3) of the Constitution.

The bone of their contention was that the power and privilege of expulsion was exercised by the House of Commons as a facet of its power of self-composition and since such power of self-composition has not been given by the Constitution to the Indian legislature, it did not inherit the power to expel its Members. The contention is that expulsion is necessarily punitive in nature rather than remedial and such power

vested in the House of Commons as a result of its power to punish for contempt in

its capacity as a High Court of Parliament and since this status was not accorded to Indian legislature, the power to expel could not be claimed by the Houses of Parliament

under Article 105(3). It is also their contention that the power to expel cannot

be asserted through Article

105(3)

also for the reason that such an interpretation

Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha and Ors

40]

would come in conflict with other constitutional provisions such as the provisions relating to vacancy and disqualification [Articles 101-103]; the provisions relating to salaries and allowances of Members and their right to hold offce till the end of the term [Articles 106 and 83(2)]; citizen’s rights to vote and right of representation of

their constituency in Parliament; and, the Fundamental Rights of the Members of

Parliament. The petitioners have also made out natural justice in the inquiry proceedings patent illegalities, which are not protected of procedural irregularities. They further

a grievance about denial of principles of and it is contended that there are gross and from judicial review by Article 122 on plea contended that even the plenary powers of

the legislature are controlled by the basic concepts of the Constitution and, therefore,

it has to function within the circumscribed limits. They submitted that this court is the final arbiter on constitutional issues and the existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the court for protection of Fundamental Rights and for due adherence to the constitutional provisions and scheme in the absence of which the power conferred on the judicial organ would be rendered meaningless. They also contended that the extent and scope of power conferred on each branch of the State limits on the exercise of such power and any action of any branch that transgresses such limit is for the judiciary to determine as the final interpreter of the Constitution. The petitioners submited that the constitutional and legal protection accorded to the citizens would become illusory

if it were left to the organ in question to determine the legality of its own action. They further submitted that it is also a basic principle of rule of law permeating every provision of the Constitution, rather forming its very core and essence, that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution, but also be in accordance with law in which context it is primarily the function of the judiciary alone to ensure that the law is observed and there is compliance with the requirement of the constitutional provisions, which is performed through patent weapon used as power of judicial review. On the question of jurisdiction of the Supreme Court to exercise its power of judicial review in a case of this nature where another coordinate organ of the State has claimed a power and privilege with the immunity from judicial interference, the petitioners contended: 1. The power of judicial review is an incident of, and flows from, the concept that the fundamental and higher laws are the touchstone of the limits of the powers of the various organs of the State, which derive power and authority under the Constitution of which the judicial wing is the interpreter.

2. Unlike in England where Parliament is sovereign, in a federal State with a written Constitution like India is, the supremacy of the Constitution is fundamental to its existence, which supremacy is protected by the authority of the independent mu

judicial body that acts as the interpreter thereof through the power of judicial

402

Summary of Cases

review to which even the legislature is amenable and cannot claim immunity

wherefrom.

. The legislative supremacy being subject to the Constitution, Parliament cannot determine

for

itself the

nature,

scope

and

effect of its powers,

which

are,

consequently, subject to the supervision and control of judicial organ. . The petitioners would also point out that unlike the Parliament of England, the status of legislature in India has never been that of a superior court of record and that even privileges of Parliament are subject to limits which must necessarily be ascertainable and, therefore, subject to scrutiny by the court, like any other right.

5. The validity of any proceedings even inside a legislative chamber can be called in question before the court when it suffers from illegality and unconstitutionality and there is no immunity available to Parliament from judicial review.

Further, on the question of power of Indian legislatures to expel their Members, the

petitioners contended thus:

1. The legislature has no power to expel its Member since Parliament has not enacted any law which provides for expulsion of a Member in a specified circumstance, in

terms of enabling power to legislate on the subject as available in Article 105(3) of

the Constitution. . The

expulsions

are

illegal,

arbitrary

and

unconstitutional,

of the provisions of Articles 83, 84 and 101-103,

being

violative

105 and 190-193 of the

Constitution. . There

is no

provision

either

in the Constitution

of India

or in the

Rules

of

Procedure and Conduct of Business of the Houses of Parliament for expulsion of a Member by adoption of a motion and thus the impugned acts were beyond the

jurisdiction of Parliament.

. The expulsion of the petitioners from the legislature through a motion adopted by simple majority was a dangerous precedent which would give dictatorial powers to the ruling majority in the legislatures in future and thus be prone to further abuse. The constitutional law governing democracies worldwide, even in other

jurisdictions governed by written Constitutions, would not allow the power of

exclusion of the elected Members unto the legislative chamber.

The petitioners have also questioned the procedure adopted by the two Houses

of Parliament alleging that it suffered from gross illegality (as against procedural

irregularity) calling for judicial interference. They contended that the expulsions are

illegal, arbitrary and unconstitutional, being violative of the provisions of Articles 14 and 21 of the Constitution.

The impugned decisions of both Houses of Parliament expelling their respective

Member/s allegedly involved in the scam were, however, sought to be defended by the

Union of India as the two Houses of Parliament, through their respective secretariats, have chosen not to appear in the matter.

Raja Ram Pal v. The Hon'ble Speaker, Lok Sabha and Ors

403

On behalf of the Union of India, it was contended that the conduct of accepting money for tabling questions and raising matters in the House was considered by the respective Houses of Parliament as unbecoming of Members of the House rendering them unfit for being Members of the respective Houses. The actions of expulsions are matters within the inherent power and privileges of the Houses of Parliament. It is a privilege of each House to conduct its internal proceedings within the walls of the House free from interference, including its right to impose disciplinary measures upon its Members. The power of the court to examine the action of a House over

an outsider in a matter of privilege and contempt does not extend to matters within the walls of the House over its own Members. When a Member is excluded from participating in the proceedings of the House, it is a matter concerning the House and the grievance of expulsion is in regard to proceedings within the walls of Parliament and in regard to rights to be exercised within the walls of the House; the House itself is the final judge. The expulsion of these Members has been rightly carried out by respective Houses in exercise of their powers and privileges under Article 105(3) of

the Constitution, which power and privilege of expulsion has been exercised by the Houses of Parliament in the past as well. The expulsion does not create any disability to be re-elected again as a Member of the House. Having given anxious consideration to the myriad issues that have been raised on both sides of the divide, three main issues (mentioned above) have been formulated

for consideration.

Court’s Jurisdiction to Decide on the Scope of Article 105(3) Though the court had noted that there was virtually consensus amongst learned counsel that it lies within the powers and jurisdiction of the Supreme Court to examine and

determine the extent of power and privileges to find out whether actually power of expulsion is available under Article 105(3) or not, it had decided not to depend upon mere concession of learned counsel. Having regard to the delicate balance of power distributed among the three chief organs of the State by the Constitution of India and the forceful assertions made particularly with regard to the limitations on the court’s jurisdiction, the court thought it prudent to examine the issue fully. On the issue, after considering the legal position in England and India in great detail, the court has opined that: ... there ought not be any doubt left that whenever Parliament, or for that matter any

State Legislature, claims any powers or privilege in terms of the provisions contained in article 105 (3) or article 194 (3), as the case may be, it is the court which has the

authority and the jurisdiction to examine, on grievance being brought before it, to find out if the particular power or privilege that has been claimed or asserted by the legislature is one that was contemplated by the said constitutional provisions or, to put it simply,

if it was such a power or privilege as can be said to have been vested in the House of

Commons of the Parliament of the United Kingdom as on the date of commencement

of the Constitution of India so as to become available to the Indian Legislatures.

404

Summary of Cases

Further, the court, before considering the question whether the power of expulsion can be read within Articles 105(3), has considered the historical perspective from England and Indian constitutional history of parliamentary powers, privileges and immunities and also dealt with the peculiar issue raised by the petitioners that reading power

of expulsion within Article 105(3) is inconsistent with many other constitutional

provisions such as provisions relating to vacancy and disqualifications; salaries and allowances of Members and their right to hold office till the end of the term; citizens’ right to vote and right of representation of their constituency in Parliament; and the Fundamental Rights of the Members of Parliament guaranteed under Articles 19(1)(g)

and 21. In this respect, the petitioners have contended that the provisions relating to

vacancy and disqualification are exhaustive regarding the termination of membership of Parliament and that no additional ground can exist based on which the membership ofa sitting Member of Parliament can be terminated. It was further submitted that since Parliament can create an additional disqualification by law, it was open to it to pass a law seeking to disqualify from continuing the membership of such Members as are guilty of conduct unworthy of a Member. Since such a law has not been passed, the termination of membership cannot take place through a resolution of the House purporting to act under Article 105(3). The court, however, negated the contention holding that ‘it is not possible to accept the submission that the termination of membership can be effected only in the manner laid down in Articles 101 and 102. While these articles do speak of qualification for and continuation of membership, in our view they operate independently of Article 105 (3)’.

Similarly, the court, on detailed consideration, has negated other contentions

as well.

Power of Expulsion Upon answering the first question in the affirmative, the court considered whether the powers and privileges of the legislatures in India, in particular with reference to Article 105, include the power of expulsion of their Members. The court examined the English position in great detail, particularly to address the contention of the petitioners that the power of expulsion is referable exclusively,

or solely, to the power of the House of Commons to determine its own composition

including the fitness of elected Members to remain Members. On detailed examination,

the court negated the contention holding that ‘the power of expulsion was not sourced only from the power of the House of Commons to provide for its own composition but

also out of its penal jurisdiction dealing with breaches of privileges and contempt’. Though, the court admitted the plea of Parliament's limited remedial power to punish for contempt raised by the petitioners, it did not find any reason as to why legislatures established in India by the Constitution,

including Parliament

under

Article 105(3), should be denied the claim to the power of expulsion arising out of

remedial power of contempt. The court also opined that whether there exists power

Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha and Ors

405

of expulsion is a matter of interpretation of the constitutional provisions, in particular

Articles 105(3) and 194(3), on which the final arbiter is the Supreme Court and not

Parliament.

In the process of finding the power of expulsion within Article 105(3), the court referred to the ‘lex et consuetude parliamenti of relating to expulsion, earlier instances of expulsion that had taken place in Indian Parliament and pronouncements of the high courts in India on the issue. Judicial Review

Having held that the power of expulsion can be claimed by Indian legislatures as one

of the privileges inherited from the House of Commons

through Article 105(3), the

court considered the next issue as to whether under our jurisprudence it is open to the court to examine the manner of exercise of the said power by Parliament as has been sought by the petitioners. It was contended on behalf of the Union of India that the matter falls within the exclusive cognizance of the legislature, intrusion wherein for purposes of judicial review of the procedure adopted has always been consistently avoided by the judicature

in England from where the power of expulsion has been sourced as also expressly prohibited by the constitutional provisions. The principal argument, on behalf of the Union of India on the plea of ouster of the court's jurisdiction is that, in essence, the position with regard to justiciability of

exercise of parliamentary privilege is exactly the same in India as what exists in England. As seen in Bradlaugh v. Gossett, courts in England have recognised the parliamentary privilege of exclusive cognizance over its own proceedings, whereby courts will examine existence of a privilege but will decline to interfere with the manner of its exercise. The contention of the petitioners, on the other hand, is that the arguments

opposing the judicial review ignore both the impact in the Indian context of existence

of a written Constitution, as well as the express provisions thereof. It has been submitted that the English decisions, including Bradlaugh, cannot be transplanted into the Indian Constitution and are irrelevant as the position of Parliament in the United Kingdom is entirely different from that of Indian Parliament, which is functioning under the Constitution and powers of which are circumscribed by the Constitution, which is supreme and not Parliament. The court has considered the English law as well as the India law relating to judicial review. Special attention was also paid to consider particularly the effect of Article 122 of the Constitution on judicial review. The court observed thus: The touchstone upon which Parliamentary actions within the four-walls of the Legislature were examined was both the constitutional as well as substantive law. The proceedings which

may

be tainted on account of substantive illegality or

unconstitutionality, as opposed

to those suffering from

mere

irregularity thus

cannot be held protected from judicial scrutiny by Article 122(1) inasmuch as the

broad principle laid down in Bradlaugh acknowledging exclusive cognizance of the

406

Summary of Cases

Legislature in England has no application to the system of governance provided by our Constitution wherein no organ is sovereign and each organ is amenable to constitutional checks and controls, in which scheme of things, this Court is entrusted with the duty to be watchdog of and guarantor of the Constitution. Further, while dealing with the issue of parameters of judicial review, with reference to

the exercise of parliamentary privileges, the court observed:

We find substance in the submission that it is always expected, rather it should be a matter of presumption, that Parliament would always perform its functions and

exercise its powers in a reasonable manner. But, at the same time there is no scope for

a general rule that the exercise of powers by the legislature is not amenable to judicial review. This is neither the letter nor the spirit of our Constitution. We find no reason not to accept that the scope for judicial review in matters concerning Parliamentary

proceedings is limited and restricted. In fact this has been done by express prescription

in the constitutional provisions, including the one contained in Article 122(1). But our scrutiny cannot stop, as earlier held, merely on the privilege being found, especially

when breach of other constitutional provisions has been alleged.

On the contention of the Union of India that where judicially manageable standards,

or normative standards, are not available, judicial review must be impliedly excluded, the court said ‘non-existence of standards of judicial review is no reason to conclude that judicial scrutiny is ousted’. However, the court made it clear that the contempt

of authority of Parliament can be tried and punished nowhere except before it, 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. After having concluded that the court has the jurisdiction to examine the

procedure adopted to findif it is vitiated by any illegality or unconstitutionality, it has emphasised on the need for circumspection in judicial review of such matters. Examination of Individual Cases of the Petitioners

The petitioners have also alleged that the impugned decision suffers from the vice of malafide as a decision had already been taken to expel them and alleged irregularities in the procedures followed by both Houses, including the non-compliance with the principles of natural justice. The court, on detailed consideration of the facts and the procedure followed by both Houses of Parliament in expelling their respective

Members, has observed thus: “We find no substance in the pleas of the petitioners. Resultantly, all the Petitions and Transferred Cases questioning the validity of the decisions of expulsion of the petitioners from the respective Houses of Parliament, being devoid of merits are dismissed’. The majority, however, made certain observations in course of the judgment. They are as follows:

1. The powers,

privileges and immunities,

etc. of legislatures provided

under

Articles 105(3) and 194(3) are those which are not covered by Articles 105(1), 105(2) and 194(1), 194(2) and are incidental powers, privileges and immunities

Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha and Ors

407

which every legislature must possess in order that it may be able to function effectively. 2. The expulsion power is not solely derived from the power of the British House of Commons

of regulating its constitution/composition. The right to enforce

privileges either by imposition of fine or commitment to prison or by expulsion is not a part of any other privileges but is by itself a separate and independent power or privileges. 3. The availability of power of expulsion to Indian legislatures is not precluded by provisions relating to disqualification and vacancies under Articles 101, 102, 190 and 191.

4. Articles 101 and 102 are not exhaustive as to the ways in which termination of

membership of a House can be effected.

5. The absolute immunity from court proceedings conferred under Articles 105(2)

6. 7. 8. 9. 10.

and 194(2) does not extend to any or every act of the legislative body or Member thereof but obtains only in respect of anything said or any vote given by a Member in the legislative body or any Committees thereof. Expulsion power is not contrary to the democratic process but is rather a part of the guarantee of a democratic process. Expulsion power of Indian legislatures is not violative of right of a constituency to be represented. Right to vote is only a statutory right and not a constitutional or Fundamental Right. Expulsion power of the Indian legislatures is not violative of the provisions relating to duration of the House and salaries, etc. of Members under Articles 83, 106, 172 and 195. Articles 19(1)(g) cannot prevent reading of expulsion power under Article 105(3).

11. Expulsion power of Indian legislatures is not precluded from being read into Article 105(3) on account of Article 21.

C. K. Thakker, J. (Concurring Judgment) Thakker, J., expressed, at the very outset, his 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, he decided to consider it in detail. He considered the question whether Parliament has power to expel a Member and whether such power and privilege is covered by Clause (3) of Article 105. He has, however, opined at the very outset that if the sole object or paramount consideration of

granting powers, privileges and immunities to the Members of legislature is to enable chem to ensure that they perform their functions, exercise 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,

408

Summary of Cases

no action can be taken by the legislature, the parent body. He examined the question on principle as well as on practice. He has analysed the legal aspects in the light of constitutional provisions of India and of other countries, viz. America, Australia,

Canada and England and opined that ‘the right to expel a member is distinct, separate and independent of right to provide for the due constitution or composition of the House and even in absence of such power or prerogative, right of expulsion is possessed by a legislature (even a Colonial Legislature), which in appropriate cases can be exercised’.

Further on the question of judicial review of order of expulsion, it was observed: .. This Court cannot be oblivious or unmindful of the fact that the Legislature is one

of three organs of the State and is exercising powers under the same Constitution

under which this Court is exercising the power of judicial review. It is, therefore, the duty of this Court to ensure that there is no abuse or misuse of power by the Legislature without overlooking another equally important consideration that the

Court is not a superior organ or an appellate forum over the other constitutional

functionary. This Court, therefore, should exercise its power of judicial review with utmost care, caution and circumspection.

After considering other contentions of the petitioners relating to violation of principles of natural justice, proportionality of punishment imposed, nature of the wrong committed, etc. he dismissed the writ petition without order as to costs. R. V. Raveendran, J. (Dissenting Judgment)

R. V. Ravendreen, J., after considering the contentions raised, has framed the following two issues:

1. Whether Articles 101 and 102 are exhaustive in regard to the modes of cessation of membership of Parliament; and whether expulsion by the House, not having been specified as a mode of cessation of membership, is impermissible. 2. If the answer to the above question is in the negative, whether Parliament has the power to expel its Members (resulting in permanent cessation of membership) as a part of its powers, privileges and immunities under Article 105(3).

Having answered the first question in the affirmative, he left the second question unanswered. For him, British Parliament devised expulsion as a part of its power to control its constitution (and may be as part of its right to self-protection and selfpreservation) to get rid of those who were unfit to continue as Members in the absence of written constitutional or statutory provisions for disqualification thus not available

to Indian legislatures. Further, according to him, power of expulsion is precluded by provisions relating to ‘disqualification’ and ‘vacancies’ provided under Articles 101, 102, 190 and 191. He treated Part V, Chapter II as a complete code in regard to matters relating to Parliament. He observed thus:

In view of the express provisions in the Constitution, as to when a person gets disqualified to be a member of either House of Parliament (and thereby ceases to

Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha and Ors

409

be a member) and when a consequential vacancy arises, it is impermissible to read a new category of cessation of membership by way of expulsion and consequential vacancy, by resorting to the incidental powers, privileges and immunities referred to

in article 105.

The appropriate course, according to him, in the case of allegation of corruption against a Member of Parliament, is to prosecute the Member in accordance with law.

(The immunity under Article 105(2) may not be available, as the decision in

P V. Narasimha Rao v. State [AIR 1998 SC 2120] recognises immunity to a Member

who is a bribe taker only where the ‘bribe’ is taken in respect of a ‘vote’ given by him in Parliament and not otherwise.) Such cases can be fast-tracked. Pending such criminal

proceedings, the Member can be suspended temporarily, if necessary, so as to prevent him from participating in the deliberations of the Houses. On being tried, if the Member is convicted, he becomes disqualified for being or continuing as a Member under Article 102(1)(e). If he is acquitted, he is entitled to continue as a Member.

Though it may sound cumbersome, that apparently is what the Constitution intends. Accordingly, it was held that the action of the two Houses of Parliament, expelling the petitioners, is violative of Articles 101 and 103 of the Constitution and therefore invalid.

Case 65

Rajendra Singh Rana and Ors v.

Swami Prasad Maurya and Ors

AIR 2007 SC 1305: 2007 (2) ALT 65 (SC): 2007 (3) SCALE 64: (2007) 4 SCC 270: MANU/SC/0993/2007 K. G. BALAKRISHNAN, C. J., H. K. Sema, A. R. LaKSHMANAN,

P. K. BALASUBRAMANYAN AND D. K. Jain, J. J.

Date of Judgment: 14.02.2007

FACTS-IN-BRIEF

The elections for the constitution of the Fourteenth Legislative Assembly of the State of Uttar Pradesh were held in February 2002. For the reasons that none of the political

parties secured the requisite majority, a coalition Government was formed, headed by Ms Mayawati, leader of the Bahujan Samaj

Party (BSP), which was admittedly

a recognised national party. The Ministry was formed in May 2002. On 25 August

2003, the Cabinet was said to have taken a unanimous decision for recommending the

dissolution of the Assembly. Based on it, on 26 August 2003, Ms Mayawati submitted the resignation of her Cabinet. Apparently, after the Cabinet decision to recommend the dissolution of the Assembly and before Ms Mayawati’s Cabinet actually resigned,

the leader of the Samajwadi Party staked his claim before the Governor for forming a Government. On 27 August 2003, thirteen Members of the Legislative Assembly

elected to the Assembly on tickets of BSP, met the Governor and requested him to invite the leader of the Samajwadi Party to form the Government. The recommendation

of the Mayawati Cabinet for dissolution of the Assembly was not accepted by the Governor. On 29 August 2003, the Governor invited the leader of the Samajwadi

Party, Shri Mulayam Singh Yadav to form the Government and gave him a time of

two weeks to prove his majority in the Assembly.

On 4 September 2003, Shri Swami Maurya, leader of the legislature BSP, filed a

petition before the Speaker in terms of Article 191 read with the Tenth Schedule of ——.

=

alae

eb

Le

Rajendra Singh Rana and Ors v. Swami Prasad Maurya and Ors

4l]

the Constitution of India, praying that the thirteen BSP MLAs, who had proclaimed support

to Mulayam

Singh

Yadav

before

the Governor

on

27 August

2003,

be

disqualified in terms of paragraph 2 of the Tenth Schedule on the basis that they had voluntarily given up their membership of the BSP, their original political party. On 5 September 2003, a caveat was also filed on behalf of the BSP before the Speaker of the Legislative Assembly requesting the Speaker to hear the representative of the BSP in case any claim of split is made by the Members who had left the party. On 6 September 2003, a request was made by thirty-seven MLAs, said to be on behalf of forty MLAs elected on BSP tickets, requesting the Speaker to recognise a split in the BSP on the basis that one-third of the members of the BSP Legislature Party consisting of 109 legislators, had in a body separated from the party pursuant to a meeting on

26 August 2003. The same evening, the Speaker took up the said application for recognition of a split. Overruling the objections of the leader of the legislature BSP, the Speaker passed an order accepting the split in the BSP. This group came to be known as the Lok Tantrik Bahujan Dal which later merged with the Samajwadi Party. On 6 September 2003, the Speaker himself accepted the merger but his order did not decide the application made by the BSP seeking disqualification of thirteen of its Members of the Legislative Assembly, who were part of the thirty-seven members who appeared before the Speaker and postponed the decision on that application. Further, on 8 September 2003, three more MLAs appeared before the Speaker stating that they

supported the thirty-seven MLAs who had appeared before him on 6 September 2003

and were part of that group. The Speaker accepted their claim. Subsequently, a writ was filed on 29 September 2003 in the High Court of Judicature at Allahabad before the Lucknow Bench challenging the said order of the Speaker. On 1 October 2003, it came up before a Division Bench of the high court. While its pendency, the Speaker before whom the petition filed by the writ petitioner (BSP) seeking disqualification of thirteen of the members of the BSP was pending, passed an order adjourning the petition seeking disqualification, on the ground that it would be in the interests of

justice to await the decision of the high court in the pending writ petition, since the

decision therein on some of the issues would be relevant for his consideration. In the high court, the writ petition was dismissed for default with an observation that neither any counsel on behalf of the writ petitioner nor on behalf of the Speaker was present. Whereas, earlier on 5 November 2003, the high court had recorded that it had heard counsel for the writ petitioner in full, and the adjournment for further hearing was at the behest of the Advocate General. An application for restoration was filed on 27 April 2004 and this application was kept pending for about eight months until on 20 December 2004. An order was passed recalling the order dated 22 April 2004 dismissing the writ petition for default and restoring it to its original number with a further direction to list the writ petition before the appropriate Bench on 4 January 2005. Counsel for the writ petitioner concluded his arguments and the case was further adjourned to 25 May 2005 for further hearing after taking certain counter affidavits

on record, Ultimately, the argument of one of counsel for the respondents was started

412

Summary of Cases

and the matter was adjourned to 6 July 2005 for completion of his arguments and for arguments by other counsel for the respondents in the writ petition. Meanwhile, on 7 September 2005, the Speaker passed an order rejecting the petition filed by Maurya for disqualification of thirteen members of the BSP. The Speaker had earlier adjourned that application for being taken up after the writ petition was decided. On 8 September 2005, an application was made on behalf of the respondents seeking dismissal of the writ petition in view of the order of the Speaker, dated 7 September 2005, dismissing the application seeking disqualification of thirteen MLAs filed by the writ petitioner. The said application was dismissed the same day. On 21 October 2005,

an application was made on behalf of the writ petitioner praying for an amendment of the writ petition. It was directed to be listed granting time to the respondents in the writ petition to file objections. Subsequently, in view of these happenings, the learned Chief Justice constituted a Full Bench for hearing the writ petition. The amendment prayed for was allowed

and the writ petition ultimately heard finally and disposed of by the judgment under appeal. As per the judgment under appeal, the writ petition was dismissed by the learned Chief Justice, while the other two learned Judges quashed the orders of the

Speaker and directed the Speaker to reconsider the matter with particular reference to

the petition for disqualification of thirteen MLAs filed by the writ petitioner and pass appropriate orders. On this, the present appeals have been filed. ISSUES

1. Does the Speaker have an independent power to decide that there has been a split or merger of a political party as contemplated by paragraphs 3 and 4 of the Tenth Schedule to the Constitution without deciding on the question of disqualification of the members? 2. Can disqualification be incurred by voluntary giving up membership of the original party (the party that gets the individual elected to the House)?

DECISION

1. On the scheme of Articles 102 and 191 and the Tenth Schedule, the determination of the question of split or merger cannot be divorced from the motion before the Speaker seeking a disqualification of a Member or Members concerned. Therefore, in light of the facts, the decision of the Speaker cannot be considered to be an order in terms of the Tenth Schedule to the Constitution. The same is a jurisdictional illegality, an illegality that goes to the root of the so-called decision by the Speaker on the question of split put forward before him. 2. The act of disqualification occurs on a Member voluntarily giving up his membership of a political party. In light of the facts, the very giving of a letter

to the Governor requesting him to call the Leader of the Opposition to form

Rajendra Singh Rana and Ors v. Swami Prasad Maurya and Ors

413

a Government by them itself would amount to voluntarily giving up the membership of the original political party within the meaning of paragraph 2 of the Tenth Schedule. Conclusively, the thirteen members of the BSP who met the

Governor on 27 August 2003 stand disqualified in terms of Article 191(2) of the Constitution read with paragraph 2 of the Tenth Schedule.

SUMMARY OF THE JUDGMENT At the very outset, the court expressed its unhappiness at the tardy manner in which

a matter of some consequence and constitutional propriety was dealt with by the high court. Article 191 of the Constitution of India deals with the disqualification for membership of Legislative Assemblies, just like Article 102 deals with disqualification for membership to the Houses of Parliament. Article 102 and Article 191, which came to be amended by the Constitution (Fifty-second Amendment) Act, 1985, with effect from 1 March 1985, provides that a person shall be disqualified for being a Member of either Houses of Parliament or of Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule to the Constitution of India. The Tenth Schedule was also added containing provisions as to disqualification on ground of defection. The application by writ petitioner Maurya to the Speaker in the present case was

made under paragraph 2 of the Tenth Schedule to the Constitution on the ground

that the thirteen members who met the Governor on 27 August 2003 had voluntarily

given up their membership of the BSP, their original political party as defined in the Tenth Schedule. The claim on behalf of the Members sought to be disqualified and those who claimed to have gone out with them from BSP is that the disqualification at the relevant time is subject to the provisions of paragraphs 3, 4 and 5 of the Tenth Schedule and since there has been a split in BSP in terms of paragraph 3 of the Tenth Schedule and a subsequent merger of the forty MLAs with the Samajwadi Party in terms of paragraph 4 of the Tenth Schedule, they could not be held to be disqualified on the ground of defection in terms of paragraph 2(1)(a) of the Tenth Schedule. The

Speaker, as noticed, did not pass any order on the application for disqualification of thirteen MLAs made by Maurya, the leader of the BSP Legislature Party in terms of paragraph 2 of the Tenth Schedule, but proceeded to pass an order on the petition filed by thirty-seven MLAs before him, claiming that there has been a split in the BSP and they constituted one-third of the Legislature Party which had 109 Members. When he passed the order on the claim of the MLAs who had left BSP, the then Speaker postponed the decision on the petition for disqualification filed by Maurya, later adjourned it to await the decision in the writ petition, but still later, the successor Speaker went back on that order and proceeded to dismiss it after entertaining an

alleged preliminary objection even while the writ petition was still pending and it was being argued on the ground that he had already recognised the split.

414

Summary of Cases

As per the court, what triggered the controversy was eight of the members of BSP followed by five other members of BSP handed over identically worded letters to the Governor on 27 August 2003. They were requesting the Governor to invite the Leader of the Opposition to form the Government. It is based on this action that Maurya, the leader of the legislature BSP, had filed the petition before the Speaker seeking

disqualification of these thirteen members on the ground that they had voluntarily left BSP, recognised by the Election Commission as a national party. It was while this proceeding was pending that on 6 September 2003, an application for recognition of a split was moved by the thirty-seven MLAs before the Speaker. Since the leader of BSP had filed a caveat before the Speaker, the Speaker chose to hear the caveator while passing the order. Considering the nature of the controversy involved, it appears to be proper to quote the said representation or application made by the thirty-seven MLAs

before the Speaker. Hence, it was unanimously resolved that the BSP be split up and a new faction in the name of Loktantrik Bahujan Dal be constituted under the leadership of Shri Rajendra Singh Rana, Member of the Legislative Assembly. It is, therefore, requested that the aforesaid Loktantrik Bahujan Dal be recognised as a separate group within the Legislative Assembly and a separate arrangement for their seating inside the

Assembly be made. It was signed by thirty-seven MLAs.

On this application, the Speaker passed an order the same evening and it was that order that was the subject matter of challenge in the writ petition filed before the high court. The Speaker overruled the argument that only thirteen MLAs had originally quit the original political party and they should be disqualified and the others subsequently

joining them would not improve the position. The Speaker proceeded to observe

that he had to decide the question of disqualification of the thirteen MLAs raised by Maurya functioning as a Tribunal and he would be taking a decision thereon at the appropriate time. It was thus that the claim of thirty-seven members of a split was recognised by the Speaker. The Speaker thus did not decide whether there was a split in the original political party, even prima facie. The Supreme Court referred to the position adopted by the high court in the judgment under Appeal while dealing with the writ petition filed by Maurya challenging the order of the Speaker in which the learned Chief Justice took the view

that the Speaker was justified in finding a split on the basis ofa claim of split in the original political party and one third Members of the Legislature Party separating by taking into account all events up to the time of his taking a decision on the question of split. The learned Chief Justice held that the snowballing effect of a split could be taken note of and that the Speaker had not committed any illegality in not

considering and deciding the petition filed by Maurya seeking disqualification of thirteen MLAs in the first instance and in keeping it pending. He thus upheld the decision of the Speaker. But the other two learned Judges, though they gave separate reasons, basically took the view that the Speaker was in error in not deciding the

application seeking disqualification of the thirteen members first and in proceeding

Rajendra Singh Rana and Ors v. Swami Prasad Maurya and Ors

415

to decide the application for recognition of a split made by the thirty-seven legislators before him. Since the proceeding arose out of a petition seeking a disqualification in terms of paragraph 2 of the Tenth Schedule to the Constitution, in terms of paragraph 6 of the Tenth Schedule, a decision on the claim for disqualification could not be kept by even while recognising a split. They, therefore, quashed the order of the Speaker and directed the Speaker to reconsider the question of defection raised by the writ petitioner Maurya in the light of the stand adopted by some of the MLAs before the Speaker that there has been a split in terms of paragraph 3 of the Tenth Schedule and so they have not incurred the disqualification in terms of paragraph 2 of the Tenth Schedule. This majority view and the interference with the order of the Speaker is challenged by the various respondents in the writ petition forming the group of thirty-seven. The writ petitioner himself has challenged that part of the order which purports to remand the proceeding to the Speaker by taking up the position that on the materials, the high court ought to have straightaway held that the defence under paragraph 3 of the Tenth Schedule to the Constitution has not been made out by the thirty-seven

members of the BSP and that thirteen of them in the first instance and the balance

twenty-four in the second instance stood disqualified in terms of paragraph 2(1)(a) of

the Tenth Schedule to the Constitution.

On this ground, elaborate arguments were raised before the court on the interpretation of the Tenth Schedule, the content of the various paragraphs and on

the facts of the present case. The court responded that the Constitution (Fifty-second Amendment) Act, 1985, amended Articles 102 and 191 of the Constitution by introducing sub-articles to them and by appending the Tenth Schedule introducing the provisions as to disqualification on the ground of defection. They were introduced to meet the threat posed to democracy by defection. A ground of disqualification from the membership of Parliament or of the Assembly on the ground of defection

was introduced. The constitutional validity of the amendment and the inclusion of

the Tenth Schedule were upheld by this court paragraph 7. The Constitution Bench held that on a high dignitary, namely, the Speaker of conferment of such a power was not anathema

in Kihota Hollohan except as regards the right to decide has been conferred Parliament or the Assembly and the to the constitutional scheme.

Learned counsel for the writ petitioner raised an argument and submitted that

the Speaker in terms of paragraph 6 of the Tenth Schedule was called upon to decide the question of disqualification and only to a decision by him on such a question, that the qualified finality in terms of paragraph 6(1) got attached and not to a decision independently taken, purporting to recognise a split. He pointed out that in this case, the Speaker had not decided the petition for disqualification filed against the thirteen MLAs, and the Speaker had only proceeded to decide the application made by thirtyseven members subsequently for recognising them as a separate group on the ground that they had split from the original BSP in terms of paragraph 3 of the Tenth Schedule. He submitted that no such separate decision was contemplated in a proceeding under the Tenth Schedule since the claim of split was only in the nature ofa defence to a

416

Summary of Cases

claim for disqualification on the ground of defection and it was only while deciding the question of defection that the Speaker could adjudicate on the question whether a claim of split has been established. When an independent decision is purported to be taken by the Speaker on the question of split alone, the same was a decision outside the Tenth Schedule to the Constitution and, consequently, the decision of the Speaker was open to challenge before the high court just like the decision of any other

authority within the accepted parameters of Articles 226 and 227 of the Constitution.

In other words, according to him, the qualified finality conferred by paragraph 6(1) of the Tenth Schedule was not available to the order of the Speaker in this case. As per the court, the question really is whether the Speaker was justified in keeping the question of disqualification pending. As indicated above, the whole proceeding under the Tenth Schedule to the Constitution is initiated or gets initiated as a part of disqualification of a Member of the House. That disqualification is by way of defection. The Speaker, as clarified in Kihota Hollohan, has necessarily to decide that question of disqualification as a Tribunal. In the present case, the Speaker had a petition moved before him for disqualification of thirteen members of the BSP. When that application was pending before him, certain members of BSP had made a claim before him that there has been a split in the party. The Speaker, on the scheme of the Tenth Schedule and the rules framed in that behalf, had to decide the application for disqualification made and while deciding the same, had to decide whether in view of paragraph 3 of the Tenth Schedule, the claim of disqualification has to be rejected. The court had no doubt to hold that the Speaker had totally misdirected himself in purporting to answer the claim of the thirty-seven MLAs that there has been a split in the party even while leaving open the question of disqualification raised before him by way of an application that was already pending before him. As per the court, the failure on the part of the Speaker to decide the application seeking a disqualification cannot be said to be merely in the realm of procedure. It goes against the very constitutional scheme of adjudication contemplated by the Tenth Schedule read in the context of Articles 102 and 191 of the Constitution. It also goes against the rules framed in that behalf and the procedure that he was expected to follow. While dismissing the appeals filed by the thirty-seven MLAs and allowing the appeal filed by the writ petitioner the court observed thus: In view of our conclusion that it is necessary not only to show that 37 MLAs had

separated but it is also necessary to show that there was a split in the original political

party, the above finding necessarily leads to the Page 1021 conclusion that the 13 MLAs

sought to be disqualified had not established a defence or answer to the charge of defection under paragraph 2 on the basis of paragraph 3 of the Tenth Schedule. The 13 MLAs, therefore, stand disqualified with effect from 27.8.2003. The very giving

of a letter to the Governor requesting him to call the leader of the opposition party to form a Government by them itself would amount to their voluntarily giving up the membership of their original political party within the meaning of paragraph 2 of the

Tenth Schedule. If so, the conclusion is irresistible that the 13 members of BSP who

met the Governor on 27.8.2003 who are respondent Nos. 2, 3, 4, 5, 6, 9, 10, 14, 16,

Rajendra Singh Rana and Ors v. Swami Prasad Maurya and Ors

19, 20, 21 and 37, in the writ petition filed by Maurya, stand disqualified in terms of Article 191(2) of the Constitution read with paragraph 2 of the Tenth Schedule

thereof, with effect from 27.8.2003. If so, the appeal filed by the writ petitioner has to be allowed even while dismissing the appeals filed by the 37 MLAs, by modifying the decision of the majority of the Division Bench. Hence the writ petition filed in the High Court, will stand allowed with a declaration that the 13 members who met the Governor on 27.8.2003, being respondent Numbers 2, 3, 4, 5, 6, 9, 10, 14, 16,

19, 20, 21 and 37 in the writ petition, stand disqualified from the Uttar Pradesh Legislative Assembly with effect from 27.8.2003.

417

Case 66

Rajesh Ranjan v. State of Bihar and Anr (2000) 9 SCC 222 G. T. NANAVATI AND S. N. PHUKAN, J. J. Date of Judgment: 04.02.2000

FACTS-IN-BRIEF

The petitioner was an elected Member of Parliament and he was in custody. Since he was not allowed to take oath he was likely to lose his membership. ISSUE Whether a Member who is in custody is entitled to take oath? DECISION A Member, who is in custody, is entitled to take oath.

SUMMARY OF THE JUDGMENT The State of Bihar and other authorities were directed to take the petitioner to the

designated officer of the Lok Sabha on 23 February 2000 at 10.00 am for taking oath

and allow him to attend proceedings of Parliament on that day.

Case 67

Ram Das Athawale v. Union of India (2010) 4 SCC 1 2010(3) SCALE 412 K.G. BALAKRISHNAN C. J. AND S. H. Kapapia, R. V. RAVEENDRAN, B. S. REDDY AND P. SaruasrvaM J. J.

Date of Judgment 29.03.2010

FACTS-IN-BRIEF

In this case, the petitioner Shri Ramdas Athawale, former National President of the Republican Party of India and Member of the Lok Sabha, filed a writ petition under Article 32 of the Constitution of India challenging the validity of the proceedings in the Lok Sakha on the ground that the President has not addressed both Houses of Parliament as envisaged under Article 87 of the Constitution. As per the facts of the case, the fourteenth session of the Thirteenth Lok Sabha was adjourned sine die on 23 December 2003 and a notice was issued on 20 January 2004 stating that the Lok Sabha session would resume in the same month. The petitioner contended that there was no presidential address in the first session of 2004 as envisaged under Article 87(1), and therefore the Lok Sabha

proceedings in that session were unconstitutional, illegal, null and void. ISSUE

Whether the decision of the Speaker directing resumption of the sitting of the Lok Sabha, which was adjourned sine die, is susceptible to judicial review in a proceeding under Article 32 of the Constitution of India? DECISION

The validity of the proceedings and business transacted in the House after the resumption of its sittings cannot be tested and gone into by the court in a proceeding under Article 32.

420

Summary of Cases

SUMMARY OF THE JUDGMENT CORAM:

K. G. Balakrishnan, P. Sathasivam, B. S. Reddy, R. V. Raveendran,

S. H. Kapadia

The petitioner challenged that the session, which commenced on 29 January 2004 was the first Session of the Lok Sabha in the year 2004, and there was no address by the President informing Parliament the cause of its summons as provided for and required under Article 87(1) of the Constitution of India. The contention of the petitioner

was that the ‘first Session’ means the session which is held first in point of time in a given year. According to him, the session which commenced on 29 January 2004 was the first session of the House of the year 2004. The sittings thereafter continued up to 5 February 2004. Learned counsel for the petitioner submitted that in terms of mandatory requirement as provided for in Article 87(1) of the Constitution of India, the President has to address both Houses of Parliament at the commencement of the session every year and inform Parliament of the causes of its summons. It was

submitted that the commencement of the first session of each year has to be with reference to the first session of each year. In this case year shall mean a year reckoned

according to the British calendar. The contention was that the sittings of the Lok Sabha from 29 January 2004 were unconstitutional or it could not have been assembled at all in the absence of special address of both Houses of Parliament by the President. The House of People could have assembled only after the special address by the President. In the instant case, the learned Attorney General submitted that the Winter Session of Parliament had commenced on 2 December 2003 and was adjourned sine die on 23 December 2003. The House resumed sitting of that adjourned session in pursuance of the Notice of the Secretary General dated 20 January 2004 under Rule 15

of the Rules of Procedure and Conduct of Business in Lok Sabha. It was submitted

that the sitting which commenced on 29 January 2004 was not the commencement ofa new session, but was a continuation of the Winter Session, which was adjourned on 23 December 2003. The learned Attorney General further submitted that the

word ‘first session’ of the year in Article 87 could not refer to the resumption of the

adjourned session. It must refer to a new session. It was submitted that the distinction

in procedure between the resumption of an adjourned session and summoning of a new session might have to be borne in mind for the purpose of interpretation of

Article 87(1) of the Constitution of India. The submission was that for the resumption

of an adjourned session, the Speaker, under Rule 15 of the Rules of Procedure and Conduct of Business in Lok Sabha, directs issuance of a notice informing the Members of the next sitting of the session. But if the House is prorogued, it is only the President who can summon the next session of Parliament. It was submitted that in the present case, Article 87(1)

has no application as the Winter Session was only resumed on

29 January 2004 and no new session was summoned.

The court observed that in the present case, the Winter Session of the House of the People commenced on 2 December 2003and was adjourned sine die on

Ram Das Athawale v. Union of India

42\

23 December 2003. The resumption of its sittings on 29 January 2004, by no stretch of imagination, could be characterised as commencement of a new session. The House merely resumed its sittings and continued the session, which actually commenced on

2 December 2003. As it is evident from the record, the House was adjourned sine die

on 23 December 2003; the resumption of its sittings is nothing but reconvening of the same session after its adjournment sine die. It is the second part of the same session. The words ‘first session of the year’ employed in Article 87(1) has no reference

to resumption of the adjourned session. The session commences with the President's summoning the House to meet. It is Article 85, which deals with the summoning of sessions of Parliament, prorogation and dissolution of the House of People. The constitutional provision does not require summoning of every session of Parliament,

which was adjourned for its own reasons after commencement of its session pursuant

to the summons of the President. It is only when a House is prorogued and a new session thereafter summoned under Article 85(2) of the Constitution, the special address by the President as provided for under Article 87(1) is required with reference

to the new session so as to inform Parliament of the cause of its summons. No such special address is needed, if a session is adjourned sine die in the previous year and the sittings of the same session is resumed in the next year.

It is thus clear that whenever the House resumes after it is adjourned sine die, its resumption for the purpose of continuing its business does not amount to commencement of the session. The resumed sitting of the House, in this case on

29 January 2004, does not amount to commencement year 2004.

of the first session in the

Regarding the question whether the decision of the Speaker directing resumption

of sitting of the Lok Sabha, which was adjourned sine die on 23 December 2003 is susceptible to judicial review in a proceeding under Article 32 of the Constitution

of India, the court responded that under Article 122 of the Constitution, the courts are precluded from making inquiry into proceedings of Parliament. In this regard the court observed:

Under Article 122(2) of the Constitution the decision of the Speaker in whom powers

are vested to regulate the procedure and the conduct of business is final and binding on every member of the House. The validity of Speaker's decision adjourning the House sine die on December 23, 2003 and later his direction to resume its sittings

cannot be inquired into on the ground of any irregularity of procedure.

The Speaker is the guardian of the privileges of the House and its spokesman and

representative upon all occasions. He is the interpreter of its rules and procedure, and is invested with the power to control and regulate the course of debate and to maintain order. The powers to regulate Procedure and Conduct of Business of the House of the People are vested in the Speaker of the House. By virtue of the powers vested in him, the Speaker, in purported exercise of his power under Rule 15 of the Rules of Procedure and Conduct of Business in Lok Sabha, got issued a notice

dated 20 January 2004, through the Secretary General of the Lok Sabha, directing

422

Summary of Cases

resumption of sittings of the Lok Sabha which was adjourned sine die on 23 December 2003. Whether the resumed sittings on 29 January 2004 was to be treated as the second part of the fourteenth session as directed by the Speaker is essentially a matter relating purely to the procedure of Parliament. The validity of the proceedings and the business transacted in the House after resumption of its sittings cannot be tested and gone into by this court in a proceeding under Article 32 of the Constitution of India. Regarding the question of invoking writ jurisdiction under Article 32, the court also clarified that in the present case there was no complaint of infringement of any guaranteed fundamental rights and therefore it may not be necessary to dilate on the question as to the parameters and extent of judicial review that may be available in case

of infringement of any guaranteed fundamental rights of a Member of the House.

Case 68

Rameshwar Prasad and Ors v. Union of India and Anr MANU/SC/0399/2006: AIR2006 SC 980: 2006(1) SCALE 385: (2006) 2 SCC 1 Y. K. SABHARWAL, C. J., B. N. AGARWAL, ASHOK BHAN (MAJORITY),

AriiT PASAYAT AND K. G. BALAKRISHNAN, J. J. (MINORITY)

Date of Judgment: 24.01.2006

F ACTS-IN-BRIEF In the present case, after the Assembly elections in Bihar in 2005, the Governor issued

a proclamation whereby the Assembly was kept in suspended animation since no political party could conjure up a clear majority. Thereafter, the Governor sent a report to the President alleging that widespread attempts were being made to coerce Members

of Legislative Assemblies (MLAs), particularly of the Lok Janshakti Party (LJP), to

shift sides with lures of money, etc. which undermined parliamentary democracy in the State. Therefore, he urged that there was an urgent need to dissolve the Assembly and call for fresh elections. This report was apparently based on newspapers and intelligence reports. The Union Cabinet approved the report and the President, who was in Moscow, signed it after following due process of law. The State Assembly was dissolved even without convening a single meeting. The said proclamation was challenged on grounds that the dissolution of the Assembly under Article 174(2)(b)

and the proclamation under Article 356(1) of the Constitution were not based on

‘cogent evidence’ and it is malafide and, therefore, u/tra vires the Constitution. ISSUES

1. Is it permissible to dissolve the Legislative Assembly under Article 174(2)(b) of

the Constitution without its first meeting taking place?

2. Whether the proclamation, dated 23 May 2005, dissolving the Assembly of Bihar, is illegal and unconstitutional?

424

Summary of Cases

3. If the answer to the aforesaid question is in affirmative, is it necessary to direct status quo ante as on 7 March 2005 or 4 March 2005 (the dates when the Bihar

Assembly had been constituted and put in suspended animation, respectively)? 4. What is the scope of Article 361 granting immunity to the Governor? DECISION

Having regard to the peculiar facts, despite unconstitutionality of the Proclamation, the relief was moulded by not directing status quo ante and consequently permitting the completion of the ongoing election process.

SUMMARY OF THE JUDGMENT ‘The petitioners argued that, under Article 174(2)(b), the Assembly cannot be dissolved

even before its first sitting/meeting and one cannot dissolve something which is not even in existence. The submission is that under the scheme of the Indian Constitution, it is

impermissible to dissolve a Legislative Assembly before its first meeting and Members making oath or affirmation as required by Article 188. According to the petitioners, under the Indian Constitution, the Legislative Assembly is duly constituted only upon the House being summoned and from the date appointed for its first meeting. As per Section 73 of the Representation of the People Act, the Assembly is deemed to be constituted when the Election Commission issues notification after the declaration of results in all the constituencies. The petitioners argued that this deeming provision was not available for interpreting the Constitution. It was further contended that the Governor's report reeked of malafide and was not based on any cogent evidence. Thus the issue centred on whether it could be factually proven that the Governors report was based on cogent evidence or was it merely whimsical and arbitrary. The argument of the respondents was that the court

could not go into the relevancy of the material on which the report of the Governor is based even if it is assumed that the report is judicially reviewable. Another argument

raised by the respondents was that the decision was based on many considerations

which were ‘judicial imponderables’ and therefore it would be wise for the court to refrain from opining about the same. The respondents further contended that the proclamation under Article 356 was legislative in character and the court could look

into the existence of malafide only when it came to an executive action. It was further argued that there was a complete bar to calling into question the action of a Governor under the provisions of Article 361 of the Constitution. HELD (Per Majority)

The number one issue was decided against the petitioners. The court opined that the Assembly came into existence from the day of the issuance of notification by the

Election Commission as under Section 73 of the Representation of the People Act.

Rameshwar Prasad and Ors v. Union of India and Anr

425

The requirement of Article 188 of the Constitution suggests that the Assembly comes

into existence even before its first sitting commences. This view was based on the

decision of the apex court in the Gujarat Assembly case. Issue no. 2, the stage of preventing Members to vote against declared policies of the political party to which they belonged, had not reached. If the MLAs vote in a manner so as to run the risk of getting disqualified, it is for them to face the legal consequences. That stage had not yet reached. In fact, the reports of the Governor intended to forestall any voting and staking of claim to form the Government (paragraph 84) It was further held that ‘there was no material, let alone relevant, with

the Governor to assume that there were no legitimate realignment of political parties and there was blatant distortion of democracy by induced defections through unfair,

illegal, unethical and unconstitutional means’ (paragraph 85). The court said that the

Government moved with undue haste when it realised that one political party was close to gaining power. This approach makes it evident that the object was to prevent a particular political party from staking a claim and not the professed object of anxiety not to permit the distortion of the political system, as sought to be urged. Such a course is nothing but wholly illegal and irregular and has to be described as malafide. The recommendation for dissolution of the Assembly to prevent the staking of claim to form the Government purportedly on the ground that the majority was achieved by distortion of a system by allurement, corruption and bribery was based on such general assumptions without any material, which are quite easy to be made if any political party not gaining absolute majority is to be kept out of governance. No assumption without any basis whatever could be drawn that the reason for a group to support the claim to form the Government by Nitish Kumar was only the aforesaid distortions. That stage had not been reached. It was not allowed to be reached. If such a majority had been presented and the Governor forms a legitimate opinion that the party staking a claim would not be able to provide a stable Government to the State, that may be a different situation. Under no circumstances, can the action of the Governor be held to be bonafide when it is intended to prevent a political party to stake its claim for formation of Government. After elections, every genuine attempt is to be made which helps in installation of a popular Government, whichever be the political party. It is open to the court, in exercise of judicial review, to examine the question whether the Governor's report is based upon relevant material or not; whether it is made bonafide or not; and whether the facts have been duly verified or not (paragraph 123). The court went on to add that the Cabinet should have verified the relevancy of the material on which the report was based. The court said that after the Bommai decision it is settled that all actions of the legislature are not legislative actions and the said Proclamation did not fall under the ambit of the phrase. The third issue was based on factual and pragmatic considerations. It was held that ‘having regard to these subsequent developments coupled with numbers belonging to different political parties, it was thought fit not to put the State in another spell of

426

Summary of Cases

uncertainty. Having regard to the peculiar facts, despite unconstitutionality of the Proclamation, the relief was moulded by not directing status quo ante and consequently permitting the completion of the ongoing election process with the fond hope that the electorate may again not give fractured verdict and may give a clear majority to one or other political party—the Indian electorate possessing utmost intelligence and having risen to the occasion on various such occasions in the past’ (paragraph 161). The fourth issue was decided against the respondents. The following passage

summarises the position:

The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of malafides are required to be defended by Union of India or the State, as the case may be. Even in cases where the personal malafides are alleged and established, it would not be open

to the Governments to urge that the same cannot be satisfactorily answered because

of the immunity granted. In such an eventuality, it is for the respondent defending

the action to satisfy the Court either on the basis of the material on record or even hling the affidavit of the person against whom such allegation of personal malafides are made. Article 361 does not bar filing of an affidavit if one wants to file on his own.

The bar is only against the power of the Court to issue notice or making the President or the Governor answerable. In view of the bar, the Court cannot issue direction to

President or Governor for even filing of affidavit to assist the Court. Filing of an affidavit on one’s own volition is one thing than issue of direction by the Court to file an affidavit. The personal immunity under Article 361(1) is complete and, therefore,

there is no question of the President or the Governor being made answerable to the Court in respect of even charges of malafides.

Minority Opinions (Per PASAYAT, J. AND BALAKRISHNAN, J.) Per Pasayat, J.

Justice Pasayat opined that the Tenth Schedule and the ‘floor test’ were not complete panacea

for all maladies

relating to defections and

horse-trading,

and in extreme

circumstances the Governor could not be a mute spectator. To this extent the area of law laid down in the State of Rajasthan case was not modified by S. R. Bommai. After reading a plethora of decisions the following was said: The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury’s case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute

its decision to that of the administrator. The scope of judicial review is limited to the

deficiency in decision-making process and not the decision (Paragraph 192).

Rameshwar Prasad and Ors v. Union of India and Anr

427

The truth or correctness of the materials cannot be questioned by the Court nor

would it go into the adequacy of the material and it would also not substitute its

opinion for that of the President. Interference is called for only when there is clear case of abuse of power or what is some times called fraud on power. The Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the decision making authority is the best judge of the situation (Paragraph 209). If the Governor felt that what was being done was morally wrong, it cannot be

treated as politically right. This is his perception. It may be erroneous. It may not be specifically spelt out by the Constitution so far as his powers are concerned. But it ultimately is a perception. Though erroneous it cannot be termed as extraneous or

irrational. Therefore however suspicious conduct of the Governor may be, and even if it is accepted that he had acted in hot haste it cannot be a ground to term his action as extraneous. A shadow of doubt about bona fides does not lead to an inevitable

conclusion about malafides (Paragraph 221).

Justice Pasayat, agreed with the majority on all other issues except that he did not agree with the view that the report of the Governor and thus the Proclamation was based on irrelevant considerations and hence was malafide. Per Balakrishnan, J.

Justice K. G. Balakrishnan’s minority view can be summarised in his own words thus: If Governor has got a reasonable apprehension and reliable information such

unethical means are being adopted by the political parties to get majority, they are

certainly matters to be brought to the notice of the President and at least they are not irrelevant matters. Governor is not the decision-making authority. His report

would be scrutinized by the Council of Ministers and a final decision is taken by the President under Article 174 of the Constitution. Therefore, it cannot be said that

the decision to dissolve the Bihar State Legislative Assembly, is mala fide exercise of

power based on totally irrelevant grounds’ (paragraph 297).

Case 69

Ravi S. Naik and Sanjay Bandenkar v. Union of India AIR 1994 SC 1558: JT 1994 (1) SC 551: 1993 (2) SCALE 992: 1994 Supp (2) SCC 641: [1994] 1 SCR 754: MANU/SC/O0366/1994 M. N. VENKATACHALIAH, C. J. I. AnD S. C. AGRAWAL, J.

Date of Judgment: 09.02.1994

FACTS-IN-BRIEF

Elections for the Goa Legislative Assembly were held in November 1989 and the Assembly was composed of forty Members. After the elections, the Congress (1) formed the Government with the support of one independent Member. After a short time, seven members left the Congress (I) and formed the Goan People’s Party (GPP). The GPP and the Maharashtrawadi Gomantak Party (MGP) formed a coalition Government under the banner of the Progressive Democratic Front (PDF). At first,

Churchill Alemao became the Chief Minister, but later Dr Luis Proto Barbosa was sworn in as the Chief Minister. On 4 December 1990, the MGP withdrew its support to the PDF Government and thereupon, on 6 December 1990, a notification was issued summoning the Assembly on 10 December 1990 and the Chief Minister, Dr Barbosa, was required to seek a vote of confidence. Before the Assembly could meet, Dr Barbosa tendered his resignation as the Chief Minister on 10 December 1990, and the same was accepted.

On

10 December

1990,

Dr Wilfred D’Souza,

leader of the Congress (I) legislature party staked his claim to form the Government. He claimed the support of twenty members consisting of thirteen members of the

Congress (I), four members of GPP and two members of MGP, who would form a common front known as the Congress Democratic Front (CDF).

The two members of the MGP, who were included in the CDF, were Sanjay Bandekar and Ratnakar Chopdekar. Ramkant Khalap, who was the leader of the PDF, claimed support of sixteen members of MGP and three members who were formerly with GPP. The Governor submitted his report. On 11 December 1990, by taking

Ravi S. Naik and Sanjay Bandenkar v. Union of India

429

into consideration the said report as well as other information received, the President of India issued a Proclamation dated 14 December 1990 under Article 356 of the Constitution whereby President’s Rule was imposed in the State, and the Legislative

Assembly was suspended. Meanwhile, on 10 December 1990, Ramakant Khalap filed two separate petitions under Article 191(2) of the Constitution, before the Speaker of the State Legislative Assembly, whereby he sought that both Bandekar and Chopdekar be disqualified as Members of the State Legislature on the ground of defection under Article 191(2) read with paragraph 2(1)(a) and 2(1)(b) of the Tenth Schedule to the Constitution.

By order, the Speaker declared them as disqualified from being Members of the Goa

Legislative Assembly under Article 191(2) of the Constitution on the ground of defection as set out in paragraph 2(1)(a) and 2(1)(b) of the Tenth Schedule to the

Constitution. Both these Members filed a writ petition in the high court and in the said petition an interim order was passed by the high court staying the operation of the order with regard to disqualification of the said Members. The Proclamation with regard to President’s Rule was revoked and Ravi S. Naik was sworn in as the Chief Minister. One Dr Kashinath G. Jalmi belonging to the MGP filed a petition before the Speaker for disqualification of Naik on the ground of defection under Article 191(2) read with paragraph 2(1)(a) of the Tenth Schedule

to the Constitution. On the said petition, the Speaker, Shri Sirsat, passed an order dated 15 February 1991 declaring Naik as disqualified from being a Member of the

Goa Legislative Assembly under Article 191(2) of the Constitution on the ground of defection as set out in paragraph 2(1)(a) of the Tenth Schedule to the Constitution.

To challenge the said order of disqualification, Naik filed a writ petition in the High Court, Panaji Bench,. While the writ petitions were pending in the high court, Shri Sirsat was removed from the office of Speaker and the Deputy Speaker began

functioning as the Speaker. Bandekar and Chopdekar filed applications for review of

the order, dated 13 December 1990, with regard to their disqualification and the said review applications were allowed by the Deputy Speaker functioning as Speaker and order disqualifying Bandekar and Chopdekar was set aside. Shri Ramakant D. Khalap filed a writ petition before the High Court of Bombay, Panaji Bench, Goa, challenging the said order. The said writ petition was dismissed on the ground of laches by the high court on 4 February 1992 and subsequently a C.A. was filed against the order of the high court, in high court. Similarly Naik filed an application for review of the order which was allowed by the Deputy Speaker functioning as Speaker. Another writ petition was filed by Churchill Alemao against the order of the Acting Speaker dated 8 March 1991, which was also dismissed by the high court on the ground of laches. There were appeals against the orders of high courts and all the three appeals were allowed by the apex court by judgment dated 31 March 1993 (Dr Kashinath G. Jalmi

and Anr v. Speaker and Ors {1993 2 SCR 820]. By the said judgment, the apex court

set aside the impugned orders of the high court declaring that orders, dated 7 March 1992 and 8 March 1992, made by the Acting Speaker in purported exercise of the power of review are nullity and liable to be ignored. It was held that the orders, dated

430

Summary of Cases

13 December 1990, and the order dated continue to operate would stand revived Thereafter, the high

passed by the Speaker disqualifying Chopdekar and Bandekar, 15 February 1991, passed by the Speaker disqualifying Naik, and the writ petitions filed by Bandekar, Chopdekar and Naik and the same would be disposed of by the high court on merits. court heard the two writ petitions on merits and by judgment,

dated 14 May 1993. Both the writ petitions have been dismissed. Hence, the present

appeals are filed in the Supreme Court. ISSUES

1. Whether the expression ‘voluntarily giving up his membership’ in paragraph 2(1) (a) mounts to resignation from the original party?

2. Whether the Speaker’s order of disqualifying a Member is subjected to judicial review under the constitutional mandate? 3. Whether the Speaker can refuse to recognise the ‘split’ on the ground that requisite information was not furnished to him under the Rules? DECISION The court held:

1. The expression ‘voluntarily given up his membership’ in paragraph 2(1)(a) is not synonymous with resignation and has got a wider connotation.

2. The Anti-defection Rules, being procedural, cannot be equated with constitutional

mandate and violation of rules does not afford ground for judicial review of

3. 4. 5. 6.

Speaker’s order disqualifying a Member. Judicial review of a Speaker's order disqualifying a Member permissible in spite of finality imparted under paragraph 6 to Speaker's decision. Insufficient time given to respondent for submitting reply to allegation in petition does not result in denial of adequate opportunity. Reference to newspaper reports by the Speaker for drawing inference about alleged facts does not violate principles of natural justice. Burden under paragraph 2 lies on persons who claim that an MLA has incurred disqualification and the burden under paragraph 3 lies on a Member who claims that because of a split in the party, paragraph 2 is not attracted.

7. Speaker cannot refuse to recognise split on the ground that requisite information was not furnished to him under rules.

SUMMARY OF THE JUDGMENT Shri Sen, counsel for the appellant, contended that the petition that was filed by the

petitioner before the Speaker did not fulfil the requirements of Clause (a) of Subrule (5) of Rule 6 inasmuch as the said petition did not contain a concise statement of

Ravi S. Naik and Sanjay Bandenkar v. Union of India

43]

the material facts on which the petitioner was relying and further that the provisions

of Clause (b) of Sub-rule (5) of Rule 6 were also not complied with inasmuch as the

petitions were not accompanied by copies of the documentary evidence on which the petitioner was relying and the names and addresses of the persons and the list of such information as furnished by each such person. It was also submitted that the petitions were also not verified in the manner laid down in the CPC for the verification of pleadings and thus there was non-compliance of Sub-rule (6) of Rule 6 also and that

in view of the said infirmities the petitions were liable to be dismissed in view of Sub-

rule (2) of Rule 7. Rejecting the contention, the court held that the disqualification

rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 of the Tenth Schedule to the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this court in Kihota Hollohan’s case. Disqualification Rules have been framed by the Speaker in exercise of the power conferred under

paragraph 8 of the Tenth Schedule. They have a status subordinate to the Constitution and cannot be equated with the provisions of the Constitution. They cannot, therefore, be regarded as constitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as

construed in the Kihota Hollohan case. Shri Sen urged that there has been a violation of the principles of natural justice also for the reason that in the impugned order the Speaker has referred to certain extraneous materials and circumstances, namely, the copies of the newspapers that were produced by Dr Jalmi at the time of hearing and the talks which the Speaker had with the Governor. Another grievance raised by Shri Sen was that the appellants were denied the opportunity to adduce their evidence before the Speaker. The court responded while applying the principles of natural justice it must be borne in mind that ‘they are not immutable but flexible’ and they are not cast in a rigid mould and they cannot be put in a legal strait-jacket. Whether the requirements of natural justice have been complied with or not has to be considered in the context of the facts and circumstances of a particular case. In the light of the aforesaid facts and circumstances, the court held that the impugned order of disqualification passed by the Speaker was not in violation of the principles of natural justice. Another contention that was urged before the high court on behalf of Naik was that the Speaker in his order has referred to letters received by him from Dharma

Chodankar and thar the said letters were not disclosed to Naik earlier and, therefore,

Naik had no opportunity of producing in rebuttal. The high court has rejected the said

contention on the ground that it did not make any ditference and caused no prejudice

to the petitioner, Naik. Moreover, the order of disqualification was not solely based

upon the letters. On the contrary, the order of disqualification was solely and mainly

| 432

Summary of Cases

based upon the failure of Ravi Naik to adduce evidence to prove the split as required under paragraph 3 of Tenth Schedule. Further, the court held as under: From the judgment of the High Court it appears that disqualification on the ground of Paragraph 2(1)(b) was not pressed on behalf of the contesting respondent and

disqualification was sought on the ground of Paragraph 2(1)(a) only. The said Paragraph provides for disqualification of a member of a House belonging to a political party “if he has voluntarily given up his membership of such political party”. The words “voluntarily given up his membership” are not synonymous with “resignation” and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation

from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has

voluntarily given up his membership of the political party to which he belongs.

Regarding the contention relating to the jurisdiction of the high court to entertain the writ petitions challenging the order of the Speaker, it was noted that the issue was addressed in Kihota Hollohan case wherein the provisions of paragraph 7 of the Tenth Schedule have been held to be unconstitutional. It has been held that the Speaker, while passing an order in exercise of his powers under sub-paragraph (1) of paragraph 6 of the Tenth Schedule, functions as a Tribunal and the order passed by him is subject to judicial review under Articles 32, 136, 226 and 227 of the Constitution. The court refereed Mulraj v. Murti Raghonathji Maharaj, {1967 3SCR84] on the effect of a stay order passed by a court and observed as under: ... the Speaker was bound by the stay order passed by the High Court on December 14, 1990 and any action taken by him in disregard of the said stay order was a nullity. In the instant case the Speaker, in passing the order dated February 15, 1991 relating to disqualification, treated Bandekar and Chopdekar as disqualified members. This action of the Speaker was in disregard of the stay order dated December 14, 1990 passed by the Bombay High Court. The High Court has upheld the order of the Speaker, even though he had disregarded the stay order passed by the High Court, on the basis that on the date on which the Speaker had made the impugned order, Paragraph 7 of the Tenth Schedule had not been held to be invalid by this Court and the invalidity came much later. The High Court has observed that on his interpretation of paragraphs 6 and 7 of the Tenth Schedule, the Speaker held that the stay order by the Division Bench was binding upon him and in such circumstances it could not be held that the action taken by the Speaker was perverse or malafide. According to the High Court, the position would have been different if the Speaker was to make the order after the

decision of the Court. We are unable to agree with this view of the High Court. The

decision of this Court in Kihoto Hollohan case declares the law as it was on the date

of the coming into force of the Constitution (Fifty Second) Amendment Act, 1985.

The action of Speaker in ignoring the stay order passed by the High Court while passing the order dated February 15, 1991 cannot be condoned on the view chat in the absence of the decision of this Court is was open for the Speaker to proceed on

Ravi S. Naik and Sanjay Bandenkar v. Union of India

his own interpretation of paragraphs 6 and 7 of the Tenth Schedule and ignore the stay order passed by the High Court.

While disposing the matter, the court held thus: In the result, while C.A. No. 3309 of 1993 filed by Bandekar and Chopdekar is dismissed, C.A. No. 2904 of 1993 filed by Naik is allowed. The order dated May 14, 1993 passed by the High Court in Writ Petition No. 48 of 1991 is set aside and the said Writ Petition is allowed and the order dated February 15, 1991 passed by

the Speaker, Goa Legislative Assembly declaring the Naik as disqualified for being a member of the Goa Legislative Assembly is quashed.

433

Case 70

Saroj Giri v. Vayalar Ravi and Ors 1999 CriL] 498 (Allahabad): MANU/UP/0978/1998 BINoD Kumar Roy AND P. K. Jain, J. J. Date of Judgment: 28.04.1998

FACTS-IN-BRIEF

The petitioner who was an advocate had filed a civil miscellaneous writ petition in the Allahabad High Court, questioning the validity of the appointment of Shri H. D. Deve Gowda as the Prime Minister of the country. The court had issued notices in her writ on 24 July 1996. The petitioner filed the present petition praying to issue show cause notices to fifteen parliamentarians for having criticised on the floor of Parliament on 24, 26 and 30 July 1996, two of the Judges who had issued notices on 24 July 1996 to

Shri H. D. Deve Gowda. The respondent parliamentarians advised him not to appear before the court. Even a notice of privilege erroneously relying upon the provisions of Article 205 had served upon the President of the Bar Association of the high court for criticising, deprecating and condemning the act of the parliamentarians. ISSUES

1. Whether the discussion which took place in Parliament regarding the Judges amount to contempt?

2. Does the court have jurisdiction to initiate proceedings in contempt against the respondents?

DECISION

1. The discussion, which took place in Parliament, regarding the Judges amounts to contempt.

Saroj Giri v. Vayalar Ravi and Ors

435

2. The court has no jurisdiction to initiate proceedings in contempt against the respondents.

SUMMARY OF THE JUDGMENT The court observed, in the meantime, that the apex court had upheld the appointment

of Shri H. D. Deve Gowda as Prime Minister by the judgment and order dated 6 November 1996 in S. P Anand v. H. D. Deve Gowda and Ors [AIR 1997 SC 272:

1996 6 SCC 734). The petitioner argued that Article 121 of the Constitution of India prohibits discussions against the conduct of Judges, yet from the reports of the newspapers it is clear that the Members of both Houses of Parliament had criticised two of the Judges (Hon'ble Mr Justice B. M. Lal and Hon’ble Mr Justice J. S. Sidhu).

Though the very opening words of Article 105(1) talk about freedom of speech of the parliamentarians, it is subject to the provisions of Article 121 of the Constitution and the Rules and Standing Orders regulating the procedure of Parliament. It was also argued that the serving notice of privilege on the President of the Bar Association was erroneous. According to the petitioner, the discussion should not have been made in Parliament in regard to the conduct of the Judges which was/is permissible only at the time when a motion is moved for their removal under the provisions of the Judges Enquiry Act.

Tt was argued that the discussion was not permissible in view of the fact that the issues were sub-judice and hence it attempted to interfere with administration of justice. Likewise, in advising the Prime Minister in not filing show cause and/or not appearing

before the court, the respondents nos. 1 to 15 have committed contempt. Reliance was placed on Re: Balwan Singh [1996 10 JT (SC) 337] E. M. Sankaran Namboodripad v. T. Narayanan Nambiar [AIR 1970 SC 2015: (1970) 2 SCC 325], State v. Tribhuvan

Nath Verma [1959 CriLJ 754], Dhananjay Sharma v. State of Haryana and Ors [AIR

1995 SC 1795: (1995) 3 SCC 757]; Mohd. Aslam alias Bhure v. Union of India (AIR 1995 SC 548: (1994) 6 SCC 442] and Manilal Singh v. Dr H. Borobabu Singh and

Anr [AIR 1994 SC 505]. The court observed that the petition can be dismissed by merely remembering (i) the question posed by H. M.

(Fourth Edition, vol. 2, paragraph the restriction imposed by Article Assembly discuss the conduct of opinion in the UP Legislature case in relation to the discharge of his

Seervai in his book

Constitutional Law of India

20.89) ‘what is the consequence if notwithstanding 211 the Speaker allows and the members of the the Judge’, and (ii) the finding of the majority [AIR 1965 SC 745] that ‘the conduct of the Judge duties cannot legitimately be discussed inside the

House, though if it is, no remedy lies in a Court of law’. However, the court preferred

to give a reasoned decision. After examining the Rules of Procedure and Conduct of Business of South Houses of Parliament relating to motion and resolution, the court observed that under the rules no motion pertaining to a sub-judice matter in court could be discussed in either al

436

Summary of Cases

House of the Parliament and hence the discussion in regard to the pending writ petition of the petitioner was not permissible under the rules. The court examined the relation and scope of Articles 105(1), 121, 122(1), 211 and 212 and observed that Articles 122(2) and 212(2) are pari material with no exception. The court fully concurred with

the findings of the Orissa High Court in Surendra Mohanty v. Nabakrishna Choudhury [AIR 1958 Ori 168] wherein it was held:

The speech of the Chief Minister amounts to contempt of this Court. The High Court has no jurisdiction to take action against a member of the Legislature for his speech in the Legislature, even if it amounts to contempt. The appropriate procedure

would be to leave the matter to the State Legislative Assembly to be referred to its Committees of Privileges for each examination, investigation and report as may be necessary in accordance with its own rules of procedure and the provisions of the

Constitution. So far the Editor, and the printer and publisher of Matrubhumi are concerned ... They have committed contempt of Court by publishing the speech of the Chief Minister in their ‘daily’ ... they cannot claim immunity under Clause (2) of Article 194 because their ‘daily’ is not an authorised publication.

The court also discussed the UP Legislature case to narrate the jurisdiction of the court to entertain contempt matters. The court was of the view that it has no jurisdiction to initiate proceedings in contempt against the respondents, and the Presiding Officer of a House is. The courts have no say in the matter and should really have none. The court also felt that the mediapersons must restrain themselves from publishing or exhibiting contemptuous statements, utterances and demeanours by not crossing the Laxmanrekha of fair criticism concerning the judgments/orders of the

Judges in their newspapers and on television channels. The court made it clear that these observations, however, do not apply to televised live coverage of parliamentary proceedings, provided they are authorised by Parliament.

Case 71

Sarojini Ramaswami v. Union of India and Ors AIR 1992 SC 2219: JT 1992(5) SC1: 1992 (2) SCALE 257: (1992) 4 SCC 506: [1992] Supp 1 SCR 108 MANU/SC/0439/1992 J. S. Verma, N. M. Kasirwar, K. RAaMASWAMY,

K. JAYACHANDRA REppy AND S. C. AGRAWAL, J. J.

Date of Judgment: 27.08.1992

FACTS-IN-BRIEF

The present writ petitioner under Article 32 of the Constitution of India was the wife of Justice V. Ramaswami, who was the then sitting Judge of the Supreme Court of India. Certain constitutional issues and allegations of financial improprieties and irregularities were made against Justice V. Ramaswami

in his capacity as the Chief

Justice of the High Court of Punjab and Haryana prior to his appointment in October 1989 as a Judge of the Supreme Court of India by 108 Members of the Ninth Lok Sabha by a notice of motion for presenting an address to the President for the removal from office of Justice V. Ramaswami. The motion was admitted by the Speaker of the Ninth Lok Sabha, who also proceeded to constitute a Committee consisting of Justice P. B. Sawant, a sitting Judge of the Supreme Court, Justice P. D. Desai, Chief Justice of the High Court of Bombay, and Justice O. Chinappa Reddy, a retired Judge of the Supreme Court as a distinguished jurist in terms of Section 3(2) of the Judges (Inquiry) Act, 1968. On dissolution of the Ninth Lok Sabha, the Union Government was of the view that the notice of motion given by 108 Members of the Ninth Lok Sabha for presenting an address to the President for removal of the learned Judge as well as the decision of the Speaker of the Ninth Lok Sabha to admit the motion and constitute a Committee under the provisions of the act had lapsed with the dissolution of the Ninth Lok Sabha. Accordingly, the Union Government abstained from acting in aid of the decision of the Speaker to notify that the services of the two sitting Judges on the Committee would be treated as ‘actual service’ within the meaning of

438

Summary of Cases

paragraph 11(b)(i) of Part D of the Second Schedule to the Constitution to enable them to function as members of the Committee. The Committee constituted by the Speaker under the act then proceeded to inquire into the allegations made against the Judge concerned, Justice V. Ramaswami, and, as intimated at the hearing of this petition, the Committee has completed the inquiry and also prepared its report for being submitted to the Speaker of the Lok Sabha as required by Section 4(2) of the act. Justice V. Ramaswami sent a letter dated 10 May 1992 to Justice P. B. Sawant, Presiding Officer of the Inquiry Committee, requesting that a copy of the report of the Committee be forwarded to him giving him sufficient time to seek redress in a court of law, if required or necessary, as a result of the findings of the Committee. He was sent a reply, dated 15 May 1992, by the Secretary to the Committee. The petitioner, Smt. Sarojini Ramaswami, wife of Justice V. Ramaswami, fled this writ petition on 6 July 1992 after receipt of the letter, dated 15 May 1992, by Justice V. Ramaswami from the Secretary to the Committee, impleading the Union

of India and the Committee appointed under the act as the respondents. ISSUES

1. Whether the concerned Judge has a right to be supplied with the copy of the report of the Enquiry Committee?

2. Whether the Enquiry Committee report is subject to judicial review prior to initiation of parliamentary proceedings for removal? DECISION

Accordingly, the decision of the Sub-committee on judicial accountability did not accept the position that the only logical corollary of the earlier decision is that the Judge concerned has a right to obtain a copy of the report of the Inquiry Committee before commencement of the parliamentary process to enable him at this stage to avail the remedy of judicial review in case the Committee has recorded a finding of ‘guilty’ against the learned Judge. The court held that the process for the removal of the Judge is a parliamentary process, which cannot be subjected to judicial intervention until it has culminated in the removal of the Judge. After such culmination, the statutory part of the process by which the finding of the guilt is made by the Disciplinary Committee is subject to judicial review on the permissible grounds and that too only at the instance of the aggrieved Judge. Before that the Judge is not entitled to obtain a copy of the report of the Inquiry Committee and challenge it before the court.

SUMMARY OF THE JUDGMENT Section 6 of the Judges (Enquiry) Act, 1968, provides for the stage subsequent to submission of the report by the Committee to the Speaker/Chairman. Sub-section (1)

Sarojini Ramaswami v. Union of India and Ors

439

of Section 6 lays down that if the Committee absolves the concerned Judge in its report and records a finding that the Judge is ‘not guilty of any misbehaviour ...’ then no further steps shall be taken in either House of Parliament and ‘the motion pending in the House ... shall not be proceeded with’. It is clear from Sub-section (1) of Section 6 that a finding of ‘not guilty’ recorded by the Committee in its report terminates the process of removal of the concerned Judge initiated in accordance with Section 3(1) of the act, that part of the process being statutory, and the parliamentary part of the process initiated on the Committee's report being laid before the House by the Speaker/Chairman in accordance with Section 4(3) does not commence. Sub-sections (2) and (3) of Section 6 provide for the situation where the report

of the Committee contains a finding that the or suffers from any incapacity. Sub-section (2) by the Speaker/Chairman under Section 3(1) consideration by the House together with the

Judge is ‘guilty’ of any misbehaviour prescribes that the motion admitted of the act shall then be taken up for report of the Committee. It is in this

situation and in this manner that the parliamentary part of the process of removal

of a Judge commences requiring the House to consider the motion for removal of the Judge. Sub-section (3) lays down that if the motion is adopted by each House of Parliament in accordance with provision of Clause

(4) of Article

124, then the

misbehaviour or incapacity of the Judge shall be deemed to have been proved and the address praying for the removal of the Judge shall be presented to the President in the prescribed manner. Thus, commencement of the parliamentary part of the process for removal is after the end of the earlier statutory part, only in case the report of the Committee contains a finding that the Judge is ‘guilty’ of any misbehaviour or suffers from any incapacity and not otherwise. The entire process of removal is composite in nature. Rule 9 of the Judges (Inquiry) Rules, 1969, relates to the report of the Inquiry Committee. Sub-rule (1) says that where the members of the Inquiry Committee are

not unanimous, the report submitted under Section 4 of the act shall be in accordance with the findings of the majority of the Members. Sub-rule (2) requires the Presiding Officer of the Inquiry Committee to forward within the specified period its report in duplicate, due authenticated to the Speaker/Chairman by whom the Committee was constituted. Sub-rule (3) requires an authenticated copy of the report of the Inquiry Committee to be laid before each House of Parliament. Sub-rule (4) prescribes that

where the finding of ‘guilty’ is by majority, the contrary finding of the third member shall also be forwarded along with the report submitted under Section 4 of the act. Sub-rule (5) requires an authenticated copy of the contrary finding of ‘not guilty’ made by the third member in such a case also to be laid before each House of Parliament. Thus, Sub-rules (4) and (5) require that where the finding of ‘guilty’ is not unanimous but only by majority, then the contrary opinion of the third member in favour of the concerned Judge shall also be laid before each House of Parliament to be available to Parliament for consideration along with the report containing the finding of ‘guilty’ by the majority while considering the motion for removal of the Judge. Sub-rule (6)

440

Summary of Cases

makes provision for the converse situation where the finding by the majority of the

members of the Inquiry Committee is that the Judge is ‘not guilty’, but the third member makes a finding to the contrary. It provides that in such a situation where

the majority of the members of the Inquiry Committee find that the Judge is ‘nor guilry’, then ‘the Inquiry Committee shall not disclose the finding made by such third member to Parliament or to any other authority, body or person’.

The court held that it is clear that if the finding of ‘not guilty’ is even by majority

and not unanimous, the contrary finding of ‘guilty’ by the third member is not even to be disclosed to ‘Parliament or to any other authority, body or person’ much less acted upon for any purpose by anyone. The scheme embodied in Section 6 of the

act read with Rule 9 is that where the finding of the Inquiry Committee is of ‘not

guilty’ whether unanimous or by majority of the members of the Inquiry Committee, the entire process of removal of the Judge terminates with that finding giving the quietus to the accusation of misbehaviour by the Judge scotching all rumours and

the motion is not even required to be taken up for consideration by Parliament so that the parliamentary part of the process does not commence in the absence of the condition precedent ofa finding of ‘guilty’ by the Inquiry Committee essential for its commencement. In such a situation when the finding of ‘not guilty’ is by majority of the members only, the contrary finding of guilty by the third member is not even to be disclosed to any authority or person including Parliament since all debate on the conduct of the concerned Judge based on those allegations must end. The scheme is that the matter must end there finally with no one, not even Parliament, having the

right or authority to consider, debate or examine the finding of ‘not guilty’. It is, therefore, obvious that the Inquiry Committee constituted under Section 3(2) of the act becomes the sole and final arbiter on the question of removal of the concerned Judge where the finding reached by the Committee, whether unanimous

or by majority, is that the Judge is ‘nor guilty’. Rule 9(6) read with Section

G6(1)

indicates the extent and wide sweep of a finding of ‘not guilty’ by the Committee by providing that the contrary finding of ‘guilty’ by the dissenting third member

in case of a finding of ‘not guilty’ by majority shall not even be disclosed to anyone including Parliament. The idea is that if the Committee, even by majority, records a finding of ‘not guilty’, notwithstanding the contrary opinion of the third member, the

matter must terminate there with no one, not even Parliament, being entitled to even scrutinise much less question the correctness or legality of the finding of ‘not guilty’.

The intention manifest from these provisions is that in case the Inquiry Committee

makes a finding that the Judge is ‘not guilty’ of any misbehaviour, any further scrutiny of that finding is excluded in the constitutional scheme, and no useful purpose being served by disclosure of the contrary finding of guilty reached by the third member

even to Parliament, its disclosure is forbidden with the majority opinion of ‘not guilty’

giving the quietus to the allegation of misbehaviour made against the concerned Judge. The disclosure of the dissenting opinion of guilty by the third member would needlessly harm the reputation of the concerned Judge, notwithstanding termination Oe

of the process of removal

with

mt

the maioritv finding him

rr Ira

‘nor ouilrv’.

Sarojini Ramaswami v. Union of India and Ors

441

These provisions in theactand the rules area strong indication that the constitutional

scheme for the removal of a Judge in accordance with Clauses (4) and (5) of Article 124 of the Constitution and the parliamentary law enacted under Article 124(5) shuts out

all scrutiny even by judicial review where the Inquiry Committee unanimously or even by majority makes a finding that the Judge is ‘not guilty’ of any misbehaviour. Obviously, the concerned Judge cannot be aggrieved by a finding of ‘not guilty’ in his favour and in case such finding is not unanimous but by majority, non-disclosure of the dissenting opinion of guilty, as required by Rules 9(6) of the Rules, even to Parliament, prevents any possible damage to the reputation of the concerned Judge from the dissenting opinion and, therefore, there can be no legitimate grievance to him from the undisclosed dissenting opinion. For this reason, the concerned Judge can have no grievance against exclusion of judicial review in that situation. The constitutional scheme indicates that it is only the Members of Parliament acting jointly in the specified minimum number who can bring about initiation of the procedure for removal of a Judge, all other modes and persons being excluded. The

provision in Rule 9(6) for non-disclosure of the dissenting opinion of ‘guilty’ even to Parliament further indicates that no one, including the Members of Parliament, who gave the notice of motion under Section 3(1) of the act to initiate the process of

removal have any right in that situation to even scrutinise much less assail the finding of ‘not guilty’ recorded by the Inquiry Committee even by majority. Section 6(1) of the act read with Rule 9(6) of the rules is a clear pointer in this direction. Thus, there

is total exclusion of judicial review at the instance of anyone, including the concerned Judge and Members of Parliament who gave the notice of motion, as well as any debate even in Parliament, in case the finding by the Inquiry Committee, whether unanimous or by majority, is that the Judge is ‘not guilty’ of any misbehaviour. This being the situation in the event of the Committee's report containing a finding of ‘not guilty’, there can be no requirement at least in that situation for the Committee to furnish a copy of its report to the concerned Judge before submitting the same to the Speaker/Chairman under Section 4(2) of the act. There being no grievance to the

concerned Judge, the question of his right to seek judicial review does not arise. The question, however, is of this obligation in the converse situation where the Committee makes the finding of ‘guilty’ against the concerned Judge. The absence of any obligation in the Committee to furnish a copy of its report to the concerned Judge before submitting it to the Speaker/Chairman under

Section 4(2) of the act is in consonance with the law declared in Sub-committee on

Judicial Accountability that the process for removal of the Judge is statutory till the laying of the report by the Speaker before Parliament on its submission to him by the Committee in accordance with Sub-sections (2) and (3) of Section 4 of the act. There

being no scope for judicial review in the case of finding of ‘not guilty’ in the report for the reasons already given, the finding of ‘not guilty’ being immune from any scrutiny in the constitutional scheme adopted, there need not be any obligation to furnish

a copy of the report to the concerned Judge. The Judge not being aggrieved and all

other being excluded when the finding is ‘not guilty’, any interdiction by the court

442

Summary of Cases

is automatically ruled out, notwithstanding the process till then being statutory. The incidents of statutory process are to be considered in this perspective.

In this background, the real question for decision is: Whether the right of the concerned Judge to assail the finding of ‘guilty’ against him reached by the Inquiry Committee, a statutory authority, can be exercised only if the report is furnished to the concerned Judge before the commencement of the parliamentary process which obliges the Inquiry Committee to furnish a copy of the report to him at least in the

situation where the finding reached is that the Judge is ‘guilty’ of any misbehaviour? If there be several charges framed against the Judge and in respect of some of them the finding is that the Judge is ‘guilty’ while the finding on the other charges is that the Judge is ‘not guilty’, then the consequences which would ensue in respect of the finding on each charge would depend on its nature. To put it differently, in respect of a charge of which the Judge is found ‘not guilty’, the consequences would be those indicated above in accordance with Section 6(1) of the act and Rule 9(6) of the rules

and the process of removal relating to those charges would terminate in the manner

indicated without being subject to any further scrutiny or judicial review as in the

case of a finding of ‘not guilty’ in respect of all the charges levelled against a Judge.

The second view enables the various provisions to be read harmoniously and together

consistently with the cherished values of judicial independence. It also accords due

recognition to the word ‘proved’ in Article 124(4). This also ensures uniformity of

procedure in both Houses of Parliament and serves to eliminate arbitrariness in the proceedings for removal of a Judge. It would avoid duplication of the investigation and inquiry in the two Houses. The motion which lifts the bar contained in Article 121 is really a motion for such removal under Clause (4) of Article 124 moved in the House after the alleged misbehaviour or incapacity has been proved in accordance with the law enacted by Parliament under Clause (5) of Article 124. In this connection, the parliamentary procedure commences only after proof of misbehaviour or incapacity in accordance with the law enacted under Clause (5), the machinery for investigation and

finding of proof of the misbehaviour or incapacity being statutory, governed entirely by provisions of the law enacted under Clause (5). This also harmonises Article 121.

The position would be that an allegation of misbehaviour or incapacity of a Judge has to be made, investigated and found proved in accordance with the law enacted by Parliament under Article

124(5) without

Parliament being involved up to that

stage; on the misbehaviour or incapacity of a Judge being found proved in the manner provided by that law, a motion for presenting an address to the President for removal

of the Judge on that ground would be moved in each House under Article 124(4);

on the motion being so moved after the proof of misbehaviour or incapacity and it being for presenting an address to the President praying for removal of the Judge,

the bar on discussion contained in Article 121 is lifted and discussion can take place in Parliament with respect to the conduct of the Judge; and the further consequence would ensue depending on the outcome of the motion in a House of Parliament. If, however, the finding reached by the machinery provided in the enacted law is that the

Sarojini Ramaswami v. Union of India and Ors

443

allegation is not proved, the matter ends and there is no occasion to move the motion in accordance with Article 124(4).

The other view is that Clause (4) of Article 124 gives power to Parliament to act for removal of the Judge on the ground of proved misbehaviour or incapacity in the manner prescribed if the matter is brought before it at this stage; and for reaching that stage Parliament is required to enact a law under Clause (5) regulating the procedure for that purpose. This means that making of the allegation, initiation of the proceedings, investigation and proof of the misbehaviour or incapacity of a Judge are governed entirely by the law enacted by Parliament under Clause (5) and when that stage is reached, Parliament comes into the picture and the motion for removal of the Judge on the ground of proved misbehaviour or incapacity is moved

for presentation of the address to the President in the manner prescribed. The word ‘proved’ also denotes proof in the manner understood in the Indian legal system, i.e. as a result of a judicial process. The policy appears to be that the entire stage up to proof of misbehaviour or incapacity, beginning with the initiation of investigation on the allegation being made, is governed by the law enacted under Article 124(5), and in view of the restriction provided in Article 121, that machinery has to be outside Parliament and not within it. If this be so, it is a clear pointer that Parliament neither has any role to play till misconduct or incapacity is found proved, nor has it any control over the machinery provided in the law enacted under Article 124(5). Parliament comes in the picture only when a

finding is reached by that machinery

that the alleged misbehaviour or incapacity has been proved. The Judges (Inquiry) Act,

1968, enacted under Article 124(5) itself indicates that Parliament so understood the integrated scheme of Articles 121, 124(4) and 124(5). This indicates that this area is

not left uncovered which too is a pointer that the stage at which the bar in Article 121 is lifted, is the starting point of the parliamentary process, i.e. when the misbehaviour or incapacity is proved; the stage from the initiation of the process by making the allegation, its mode, investigation and proof are covered by the law enacted under Clause (5); in case the allegation is not proved, the condition precedent to invoke

the Parliament's jurisdiction under Clause (4), does not exist, which is the reason for

Section 6 of 1968 Act saying so; and, in case it is proved, the process under Clause (4)

commences, culminating in the result provided in it. Accordingly, the scheme is that the entire process of removal is in two parts—the first under Clause (5) from initiation

to investigation and proof of misbehaviour or incapacity is covered by an enacted law, Parliaments role being only legislative as in all the laws enacted by it; and the second part only after proof under Clause (4) is in Parliament, that process commencing only

on proof in accordance with the law enacted under Clause (5). Thus, the first part is

entirely statutory while the second part alone is the parliamentary process. The Constitution intended a clear provision for the first part covered fully by enacted law, the validity of which and the process thereunder being subject to judicial

review independent of any political colour and after proof it was intended to be a

parliamentary process. This is the constitutional scheme for removal of a Judge.

444

Summary of Cases

After these observations the court concluded that under the constitutional process

for removal of a Judge up to the point of admission of the motion, constitution of the

committee and the recording of findings by the committee are not, strictly, proceedings in the Houses of Parliament. The Speaker is a statutory authority under the act. Up to that point the matter cannot be said to remain outside the court’s jurisdiction. Prior proof of misconduct in accordance with the law made under Article 124(5)

is a condition precedent for the lifting of the bar under Article 121 against discussing the conduct of Judges in Parliament. Article 124(4) really becomes meaningful only

with a law made under Article 124(5). Without such a law the constitutional scheme and process for removal of a Judge remains inchoate.

ta

=

uae

ae8..

2 b

L ee

Case 72

Social Action for Peoples Rights and Anr v.

State of Uttar Pradesh

AIR 2003 All 250: MANU/UP/1035/2002 VISHNU SAHAI AND KAMAL KISHORE, J. J.

Date of Judgment: 05.09.2002

FACTS-IN-BRIEF

The Election Commission issued a notification under Section 73 of the Representation of the People Act, 1951, constituting the Fourteenth Legislative Assembly in the State of Uttar Pradesh. Since the election results showed that the mandate of the voters was fractured and no single party was in a position to individually form a Government. As no party was able to form Government, the Governor sent his report to the President of India, who on 8 March 2002 issued a Proclamation under Article 356 of the Constitution of India, whereby some provisions of the Constitution were suspended, the Assembly was kept in suspended animation, and President’s rule was imposed in the State of Uttar Pradesh. On 29 April 2002, Ms Mayawati (leader of Vidhan Mandal Dal of the BSP and Vice-President of the BSP) requested the Governor of UP that the BSP under her leadership had decided to form a coalition Government with Bhartiya Janata Party (BJP) and Sahyogi Dals (supporting parties) and the total number of such Members

was in majority and they had given her letters of support. Consequently, Ms Mayawati requested the Governor to invite her to form a coalition Government. On the report of the Governor

of UP, on 3 May

2002,

the Proclamation

dated

8 March

2002

imposing President's Rule in the State of UP was revoked and on the said date itself, Ms Mayawati was sworn in as the Chief Minister of Uttar Pradesh. Some other ministers were also sworn in on her advice and she was allowed twenty-one days’ time to prove her majority in the UP Legislative Assembly.

446

Summary of Cases

On 13 May 2002, the newly-elected Members of the Legislative Assembly were

administered oath and affirmation in terms of Article 188 of the Constitution of India. On 17 May 2002, the Legislative Assembly passed the vote of confidence in favour of Ms Mayawati, the Chief Minister of UP. The

petitioner

no.

2, Major

Sheshmani

Nath

Tripathi

(Retd.), who

was

the

President of the Social Action for People's Rights, an association of individual citizens

of India possessing rights and freedom guaranteed to a citizen of India, filed a writ petition under Article 226 of the Constitution of India with a prayer that the court should declare the appointment of the Chief Minister of UP Ms Mayawati, made on 3 May 2002, when the UP Legislative Assembly was non-existent, as unconstitutional and ultra vires of Clause (2) of Article 164 of the Constitution of India.

ISSUE Whether Article 164(2) is operative if Members of the Legislative Assembly do not

take oath or afhrmation under Article 188 and the Speaker is not appointed under

Article 178 of the Constitution?

DECISION Till the time the Members of the Legislative Assembly do not take oath or afirmation

under Article 188 of the Constitution of India, the Speaker is not appointed under Article 178 of the Constitution of India and the Legislative Assembly is not in a position to transact its business in terms of Article 189 of the Constitution of India,

Article 164(2) of the Constitution of India would not be operational. SUMMARY OF THE JUDGMENT

Petitioner no. 2 urged that since the Council of Ministers, by virtue of the provisions contained in Article 164(2) of the Constitution of India, is collectively responsible to the Legislative Assembly of the State and on 3 May 2002 the Members of the Legislative Assembly of the State had not taken oath or afirmation in terms of Article 188 of the Constitution of India and the Speaker had not been elected as mandated by Article 178 of the Constitution of India, the Legislative Assembly could not transact business in terms of Article 189 of the Constitution of India. The constitutional mandate that

the Council of Ministers was collectively responsible to the Legislative Assembly of the State was breached and the action of the Governor of UP, under Article 164(1) of

the Constitution of India, in appointing Ms Mayawati as the Chief Minister of the

Council of Ministers, was ultra vires of the provisions contained in Article 164(2) of

the Constitution of India. The learned Advocate General, on the other hand, urged that since notification under Section 73 of the Representation of the People Act had been issued by the

Social Action for People’s Rights and Anr v. State of Uttar Pradesh

447

Election Commission on 26 February 2002, the Legislative Assembly would be deemed

to have been constituted and, therefore, the submission of the second petitioner

that the Council of Ministers under Article 164(1) of the Constitution of India was

not collectively responsible to the Legislative Assembly under Article 164(2) of the Constitution of India was misconceived. He also argued that since the Governor on the basis of cogent material was satisfied that the coalition headed by Ms Mayawati enjoyed confidence of the Legislative Assembly, there was no constitutional impediment in his way in appointing Ms Mayawati as the Chief Minister. The court while dismissing the writ petition held: An Assembly would be deemed to be constituted and for a Council of Ministers appointed under Article 164(1) of the Constitution of India to fulfil the requirements in Article 164(2) of the Constitution of India, it is necessary that not only should

the legislative Assembly be duly constituted but also be functional and for the same

oath or affirmation by its members under Article 188 of the Constitution of India, and election of its speaker under Article 178 of the Constitution of India, would be necessary and then and then only would the Legislative Assembly be able to transact its business under Article 189 of the Constitution of India; under which provision Ms. Mayawati, the Chief Minister of U.P. had to seek confidence of the Legislative

Assembly.

But the submission

that the existence of the Legislative Assembly in terms of

Articles 188, 178 and 189 of the Constitution of India is a condition precedent before the Council of Ministers can be sworn in under Article 164(1) of the Constitution of

India, is misconceived. We say this because apart from the fact that the Constitution does not stipulate that the Legislative Assembly has to be in existence in terms of the

said articles before a Council of Ministers can be sworn in under Article 164(1), the

whole scheme of the provisions of the Constitution, if read harmoniously, as it should be, leads to this inference. Where Members of the Legislative Assembly had not taken oath or affirmation under Article 188 of the Constitution of India, the Speaker had not been appointed under Article 178 of the Constitution of India, and the Legislative Assembly was not in a position to transact its business under Article 189 of the Constitution of India,

Article 164(2) would not be operational.

Case 73

State of Kerala v. R. Sudarsana Babu ILR (Ker) 1983: 661: AIR 1984 Ker 1 P SUBRAMONIAN

Poti, V. KHALID, K. BHASKARAN

Date of Judgment: 05.08.1983

F ACTS-IN-BRIEF

As per the facts of the case, one Shri R. Sudarsana Babu, staff correspondent of a Malayalam newspaper, made an application to the Secretariat of the Kerala Legislative Assembly for issue of a Press pass for the purpose of covering the proceedings of the Assembly, which were to commence from last week of February 1983. He was denied the Press pass allegedly on the direction of the Speaker, Kerala Legislative Assembly, without assigning any reason and also without informing him. Aggrieved by this, Shri Babu filed a petition under Article 226 of the Constitution in the High Court of Kerala challenging the action of the Speaker in denying him a pass on the grounds that he was singled out for discriminatory treatment, which is violative of Article 14

of the Constitution and the denial of the necessary facility to report the proceedings of the Assembly amounts to violation of the rights recognised by Article 361A of the Constitution. It is further said that the Rule 309 of the Rules of Procedure and Conduct of Business is a rule stemming from the power conferred by Article 208 of the Constitution and, thus, it is subject to Part III of the Constitution. Article 212(2)

can not be attracted in this case, as the admission of strangers to the Visitors’ Gallery, the Press Gallery is not a matter pertaining to regulation of procedure and conduct of business in the legislature. The petition was admitted by a Single Judge Bench and notices were issued to the respondents. The said order issuing notices was challenged before the Division Bench. The Division Bench, however, referred the matter to the Full Bench of the high court.

State of Kerala v. R. Sudarsana Babu

449

ISSUE

Whether a court of law can take cognizance of a complaint against the Speaker of a Legislative Assembly on the ground that action taken by him under Rules of Procedure and Conduct of Business of the Legislative Assembly was discriminatory and violative of Fundamental Rights? DECISION Upholding the decision of the learned Single Judge, the High Court of Kerala referred

the matter for reconsideration by the Single Judge. In this regard, the court observed that to the question whether the action of the Speaker is outside the immunity enjoyed by the Speaker needs to be considered by the learned Judge in accordance with the facts of this case and the court also made reference to the decisions of the apex court regarding this matter.

SUMMARY OF THE JUDGMENT Both sides had elaborately addressed the constitutional position relating to the question of interference by a court in regard to the conduct of the Speaker or the Secretary of the Legislative Assembly. The court responded that if no notice could be issued to the

Speaker by the high court in a petition under Article 226 of the Constitution, then, of

course, there is no need to examine the facts of the case to determine whether issue of

_— “—

certain circumstances or on certain grounds then the question would be whether those circumstance or grounds exist in a given case. Once such an examination is called for in this case there will be no scope for interference in appeal since the learned Single Judge has only directed issue of notice for the purpose of the very examination. Another contention was related to the issue of the conflict between parliamentary privileges vis-a-vis Fundamental Rights. By reiterating the decisions laid down by the Supreme Court in various cases, the court observed that the law made by the legislature under Article 194(3) of the Constitution defining the powers, privileges and immunities of the House, of Members and the Committees of the House of such legislature cannot contravene fundamental rights. It is open to the court to examine the validity of a plea that such laws are void to the extent they infringe the fundamental rights of the citizens. The rules framed under Article 208 of the Constitution for regulating the procedure of a House of the legislature and the conduct of its business are liable to judicial review, if there is a case of infringement of Fundamental Rights.

—es

notice would be called for. If, on the other hand, interference would be justified under

Case 74

Sub-committee of Judicial Accountability v. Union of India and Ors AIR 1992 SC 320: JT 1991 (6) SC 184: 1991 (2) SCALE 844 B. C. Ray, L. M. SHarma, M. N. VENKATACHALIAH,

J. S. VERMA AND S. C. AGRAWAL, J. J.

Date of Judgment: 29.10.1991

FACTS-IN-BRIEF

On 27 February 1991, a notice of motion signed by 108 Members of the Ninth Lok Sabha was presented to the Speaker to initiate proceedings against a sitting Judge of the Supreme Court alleging financial irregularities in the discharge of his administrative

duties as Chief Justice of the Punjab and Haryana High Court. The Speaker admitted the motion and constituted a Committee under Section 3(2) of the Judges (Enquiry) Act of

1968. The Ninth Lok Sabha was dissolved on 13 March 1991. Thereafter, the Union of India took the stand that the notice of motion as well as the decision of the Speaker of the Ninth Lok Sabha to admit the motion and constitute the Committee had lapsed with the dissolution of the Ninth Lok Sabha. On that basis, the Union of India refused to act in aid of the decision of the Speaker and declined to notify that the services of the two sitting Judges on the Committee would be treated as ‘actual service’ within the meaning of paragraph 11(B)(i) of Part D of the Second Schedule to the Constitution. Without such a notification the two sitting Judges could not take time off from their court work. Writ petitions were filed, some challenging the decision of Union of India and seeking appropriate relief, while others in support of the stand taken by the Union of India. IssUES (INTER ALIA) 1. Whether the motion for removal against a Judge of the Supreme Court would lapse as a result of dissolution of the House?

Sub-committee of Judicial Accountability v. Union of India and Ors

45|

2. Whether the House is the sole and exclusive judge to determine whether the motion for the removal of the Judge has lapsed or not? DECISION Neither the doctrine that dissolution of a House ‘passes a sponge over parliamentary

slate’ nor the specific provisions contained in any rule or rules framed under Article 118 of the Constitution determine the effect of dissolution on the motion for removal of a Judge under Article 124. The reason is that Article 124(5) and the law

made thereunder exclude the operation of Article 118 in this area. Provisions of the

Judges (Inquiry) Act, 1968, enacted by virtue of Article 124(5), do provide against

the doctrine of lapse. The question whether the motion has lapsed is a matter to be pronounced on the basis of the provisions of the Constitution and the relevant laws. It is emphatically

the province and duty of the judicial department to say what the law is. Thus, the

contention that the question whether the motion for the removal of the Judge has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive Judge and no aspect of the matter that is justiciable is not tenable.

SUMMARY OF THE JUDGMENT B. C. Ray, J. (for himself, Venkatachaliah, Verma and Agrawal, J. J.)

The Union Government sought to justify its stand on its understanding that both the motion given notice of by the 108 Members of the Lok Sabha for presenting an Address to the President for the removal of the Judge concerned as well as the decision of the Speaker of the Ninth Lok Sabha to admit the motion and constitute a Committee under the provisions of the Judges (Inquiry) Act have lapsed with the dissolution of the Ninth Lok Sabha. It was further contended that the motion for removal of the Judge moved by 108 Members of Parliament as well as the purported decision of the Speaker to admit that motion and to constitute a Committee to investigate into the grounds on which removal is sought have lapsed upon the dissolution of the Ninth Lok Sabha. The general rule is that no House of Parliament can seek to bind its successor. All

businesses pending at the time of dissolution of House lapses. A motion for removal

of a Judge is just another motion and perishes with the expiry of the term or the earlier

dissolution of the House. The question whether the motion for the removal of the Judge has lapsed or not, is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive Judge. No aspect of the matter is justiciable before court.

On the contrary, it was contended, referring to the conventions of the British Parliament, that impeachment motions are sui-generis in their nature and that they do

452

Summary of Cases

not lapse. It is, however, necessary to distinguish the Indian parliamentary experience under a written Constitution from the British conventions. Reliance was also placed on observations made by the apex court in Purushothaman Nambudhiri v. State of Kerala [AIR 1962 SC 694}.

It is true that the Purushothaman Nambudhiri case dealt with a legislative measure and not a pending business in the nature of motion. But, we are persuaded to the view that neither the doctrine that dissolution of a House ‘passes a sponge over parliamentary slate’ nor the specific provisions contained in any rule or rules framed under Article 118 of the Constitution determine the effect of dissolution on the motion for removal of a Judge under Article 124. The reason is that Article 124(5)

and the law made thereunder exclude the operation of Article 118 in this area. Section 3 of the act provides:

1. If notice is given ofa motion for presenting an address to the President praying for the removal ofa Judge signed:

(a) In the case of a notice given in the House of the People, by not less than 100 Members of that House;

(b)

In the case of a notice given

in the Council

of States, by not less than

fifty Members of that Council; then, the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse to admit the same.

2. If the motion referred to in sub-section (1) is admitted, the Speaker or, as the case

may be, the Chairman shall keep the motion pending and constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for, a Committee consisting of three Members of

whom: (a) One shall be chosen from among the Chief Justice and other Judges of the Supreme Court; (b)

One shall be chosen from among the Chief Justices of the high courts; and

(c) One shall be a person who is, in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist;

Section 6(2) provides:

If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then, the motion referred to in sub-

section (1) of Section 3 shall, together with the report of the Committee, be taken up

for consideration by the House or the Houses of Parliament in which it is pending. The effect of these provisions is that the motion shall be kept pending till the Committee submits its report and if the Committee finds the Judge guilty, the motion shall be taken up for consideration. Only one motion is envisaged, which will remain pending. No words of limitation that the motion shall be kept pending subject to

usual effect of dissolution of the House can or should be imported. The reason is that

Sub-committee of Judicial Accountability v. Union of India and Ors

453

a law made by Parliament and binding on the House can provide against the doctrine of lapse. The law envisaged in Article 124(5) is parliamentary law, which is of higher quality and efficacy than rules made by the House for itself under Article 118. Such a law can, and under the present statute does, provide against the doctrine of lapse. Further, Article 118 expressly states that each House of Parliament may make rules ‘for regulating, subject to the provisions of this Constitution’. In State of Punjab v. Sat Pal Dang [AIR 1969 SC 903] this court held that the law for purposes of Article 209 (analogous to Article 119) could even take the form of an ordinance promulgated by the Governor of a State under Article 213 and that wherever there is repugnance between the Rules of Procedure framed under Article 208 (Article 118 in the case of Parliament), the law made under Article 209 shall prevail. In the constitutional area of removal of a Judge, the law made under Article 124(5)

must be held to go a little further and to exclude the operation of the rules under Article 118. Indeed, no question of repugnance could arise to the extent the field is covered by the law under Article 124(5).

Such a view would indeed obviate some anomalies, which might otherwise arise.

Rajya Sabha is not dissolved and a motion for presentation of address for the removal of the Judge can never lapse there. Section 3 applies to both Houses of Parliament. The words ‘shall keep the motion pending’ cannot have two different meanings in the

two different contexts. It can only mean that the consideration of the motion shall be deferred till the report of the Committee implying that till the happening of that event the motion will not lapse. We are of the view that the argument that such a motion

lapses with the dissolution of House of Parliament is not tenable. The second contention is that the question whether a motion has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive master. No aspect of the matter, it is contended, is justiciable

before a court. Houses of Parliament, it is claimed, are privileged to be the exclusive arbiters of the legality of their proceedings. Strong reliance has been placed on the oftquoted decision in Bradlaugh v. Gossett. But unlike in England

there is a written Constitution

in this country, which

constitutes the fundamental and in that sense a ‘higher law’ and acts as a limitation upon the legislature and other organs of the State. The usual incidents of parliamentary sovereignty do not obtain and the concept is one of ‘limited government’. Judicial review is, indeed, an incident of and flows from this concept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State, which derive power and authority under the Constitution and

that the judicial wing is the interpreter of the Constitution and, therefore, of the

limits of authority of the different organs of the State. It is to be noted that the British Parliament with the Crown is supreme and its powers are unlimited and the courts have no power of judicial review of legislation. The principles in Bradlaugh is that even a statutory right if it is related to the sphere where Parliament and not the courts had exclusive jurisdiction would be a matter of

Parliament’s own concern. But the principle cannot be extended where the matter

454

Summary of Cases

is not merely one of procedure but of substantive law concerning matters beyond parliamentary procedure. Even in matters of procedure, the constitutional provisions are binding as the legislations are enforceable. The courts have the duty to interpret the Constitution and the law and to state what the law is. The question whether the motion has lapsed is a matter to be pronounced upon the basis of the provisions of the Constitution and the relevant laws. Indeed, the learned Attorney General submitted that the question whether as an interpretation of the constitutional processes and laws, such a motion lapses or not is exclusively for the courts to decide. The interpretation of the laws is the domain of the courts and on such interpretation

of the constitutional provisions as well as the Judges (Inquiry) Act, 1968, it requires to be held that under the law such a motion does not lapse and the courts retain jurisdiction to so declare.

Per Sharma, J. (Dissenting) On the question whether the motion against a Judge of the Supreme Court would lapse as a result of the dissolution of the old House, if the view that after the matter is entrusted to the Committee, neither he nor Parliament at this stage can undo the admission of the Motion by the earlier Speaker, or withdraw the investigation is correct,

then what happens ifa member of the Committee becomes unavailable by any reason whatsoever or another member renders himself unfit to be on the committee, say by reason of his apparent and gross bias, against or in favour of the Judge concerned,

coming to light after the formation of the Committee? The answer is that the House, which is in control of the proceeding, is entitled to take all necessary and relevant steps in the matter, except discussing the conduct of the Judge until the stage is reached and the bar under Article 121 is lifted. If, on the other hand, it is held that the Committee

is an independent statutory body not subject to the control of the House directly or through the Speaker, the act may be rendered unworkable. If the Committee is held

to be functioning under the supervision and control of Parliament, with a view to aid it for the purpose ofa proceeding pending in the House, it will be Parliament, which will be in control of the proceeding and not the Committee.

Case 75

Surat Singh Yadav v. Sudama Prasad Goswami and Anr AIR 1965 All 536: MANU/UP/0154/1965 N. U. BEs, J. Date of Judgment: 01.12.1964

FACTS-IN-BRIEF

The case of the petitioner was that Shri Sudama Prasad Goswami, who was an elected Member of the Vidhan Sabha, Uttar Pradesh, had resigned his seat in the UP Vidhan Sabha as a mark of protest against the high-handed action of the police in arresting one Raghunath Singh in a dacoity case. As per the petitioner, Shri Goswami had convened

a public meeting on 6 October 1963 and made an announcement in the meeting that ‘he had resigned his seat in the Vidhan Sabha, UP. and sent his letter of resignation to the Speaker Vidhan Sabha,

Uttar Pradesh’. However, as per Goswami’s version, in his

speech in the meeting he had not stated that the letter of resignation had been sent by him to the Speaker, Vidhan Sabha. His announcement in the meeting was that he had sent his letter of resignation to the All India Congress Committee, New Delhi, to be forwarded thereafter to the proper authority empowered to deal with it in case of their approval. According to Shri Goswami, since he had received no permission from the UP Congress Committee to submit his resignation from the membership of the Legislative Assembly, he had, in fact, not sent any letter of resignation to the Speaker. However, an open letter of resignation of Shri Goswami addressed to the Speaker had been found on the table of the Secretary of Vidhan Sabba on 18 October 1963 with no envelope attached to it and with no indication as to how it was placed on the table. There was nothing to show as to whether it was received by post or left there by some messenger. The letter was read out by the Speaker in the Vidhan Sabha. The Speaker also informed the House that since the resignation letter was not in proper form he would send the letter to Shri Goswami for being presented in a proper form. On 19 October 1963, the Speaker received another letter from

456

Summary of Cases

Shri Goswami stating that he had sent his letter of resignation to the President, All

India Congress Committee, New Delhi, and not to the Speaker. In this situation, the Speaker declared that he was going to take action under Rule 278 of the Rules of Procedure and Conduct of Business of the UP Legislative Assembly, 1958, to satisfy himself as to the genuineness and voluntary nature of the letter of resignation before giving his decision. Before he could do anything in the matter, the petitioner filed the

writ of mandamus (i) directing Shri Goswami not to treat himselfas a Member of the

Vidhan Sabha, and (ii) directing the Speaker to refrain from treating Shri Goswami as a Member of the Vidhan Sabha. Issues 1. Who is the competent authority to determine on the issue of genuineness or voluntary nature of a Member's resignation?

2. Can a Member resign his seat from a future date? DECISION

The Speaker is the competent authority to render a preliminary decision on the question of genuineness or voluntary nature of a resignation. A Member can resign

his seat from a future date.

SUMMARY OF THE JUDGMENT As per Shri Goswami, the discovery of the letter on the Secretary's table was the result

of a fraudulent device by his enemies. Since, it was not his voluntary act, the letter

cannot be described to be of a voluntary nature. The petitioner, on the other hand,

argued that according to Article 190(3)(b), the resignation would become effective from the date on which and the moment of time when the letter is written, signed

and addressed to the Speaker; hence, it is not possible for a Member to resign his seat from a future date. He further argued that the receipt of the letter of resignation by the Speaker is not a part and parcel of the act of resignation. The court, by rejecting the contentions and wholly agreeing with the observation made by the Kerala High Court in M. Kunjukrishnan Nadar v. The Hon'ble Speaker. Kerala Legislative Assembly, Trivandrum and Ors [AIR 1964 Ker 194], held thus:

The word “addressed” used in Clause (b) of Sub-rule (3) appears to embrace within

it the idea of the receipt of the letter of resignation by the Speaker. If a member of

a Legislature writes on a piece of paper that he has resigned his seat and leaves it on the table without sending the same to the Speaker it cannot be said that the writer

has resigned his seat from the House. The member should not only write the letter of resignation with the intention of sending it to the Speaker but should also put it in course of transmission so that the letter in question reaches the Speaker.

Surat Singh Yadav v. Sudama Prasad Goswami and Anr

457

The petitioner, emphasising the use of the expression ‘his seat shall thereupon become

vacant’, argued that from this it necessarily follows that the resignation becomes

effective immediately at the moment of the afhxation of the signature. The court disagreed with the argument of the petitioner that a resignation cannot be tendered from a

future date. In the opinion of the court, Article 190(3)(b) does not deal with

question of time at all. The court, referring to M. Kunjukrishnan Nadar, observed thus: In the context of Article 190(3)

“shall thereupon become vacant” means, shall in

consequence of the resignation become vacant. It then follows that if the letter of resignation is expressly made to take effect on a specified day the seat would consequently become vacant on such specified day only, and not immediately on its receipt by the speaker.

Another issue of contention was the question of determination of the dispute relating

to the genuineness or voluntary nature of a resignation. The petitioner argued that once a dispute is raised as to the genuineness, the Speaker is not competent to decide

the matter. Drawing support from the observations made by Govinda Pillai, J., in Thankamma v. The Hon'ble Speaker, Legislative Assembly, Travancore- Cochin State and Ors [AIR 1952 Trav. Co 166], the Allahabad High Court held that it is open to the

Speaker to enquire whether the resignation is genuine or not. The court opined thus: If a dispute arises in respect of genuineness or voluntary nature of the resignation he is the proper authority whose satisfaction in that regard is necessary before the

announcement of resignation is to be made by him to the House. There is no

procedure provided either under the Constitution or under the rules for the decision

of the dispute by the Court. If the decision of the matter at that preliminary stage

is to be made by the Court, the necessary result of such a procedure would be to paralyse the efficient working of the Legislature. Under the circumstances there can be no manner of doubt that the preliminary decision has to be given by the Speaker

and he is the proper authority to act in the matter ... Moreover, he being the person

to whom the letter of resignation, is to be sent, he would be in the best position

to decide whether the letter was actually sent to him, and, if sent, whether it was

received by him, and, in case it was received by him, whether the writing received by

him was of a genuine and voluntary nature.

Since the matter was still pending for consideration before the Speaker, Legislative Assembly, the court dismissed the writ application by holding it premature. The court felt it undesirable and improper to express any opinion on the merits of the cases at a premature stage.

Case 76

Surendra Mohanty v. Nabakrishna Choudhury and Ors AIR 1958 Ori 168: 1958 CrLJ 1055 R. L. NARSHIMHAM, C. J. AND S BARMAN, J.

Date of Judgment: 26.02.1958

FACTS-IN-BRIEF

The Chief Minister of Orissa, Shri Nabakrishna Choudhury, while replying to a question in the Assembly said, ‘In many instances (Aneka kshetrate) the immaturity of the high court is apparent. In many instances, the decision given by the high court has been corrected by the Supreme Court. The Supreme Court has held that in many instances the high court has abused (apabyabahar) the powers given to it’. A petition was filed drawing the attention of the court to the above passage, which made a sweeping statement about the immaturity and the competence of the court and in fact cast aspersion on the court. It was requested that the court initiate contempt proceeding against the Chief Minister. IssuE Whether the Chief Minister can claim protection under Clause (2) of Article 194 of the

Constitution in respect of what he had said about the high court in the Assembly? DECISION The offending jurisdiction’.

speech

was

held

to

be

privileged

and

that

‘this

court

has

no

Surendra Mohanty v. Nabakrishna Choudhury and Ors

459

SUMMARY OF THE JUDGMENT Before the court, Article 194 was interpreted in order to show whether the petitioner was beyond the reach of the court as far as initiation of the contempt proceeding is concerned. One of the arguments raised before the court was that proceedings contemplated in Article 194 would be only ordinary proceedings in law courts, including high court and would not include a proceeding for contempt, which is a special proceeding in a high court based on express power conferred by Article 215 of the Constitution. On behalf of the petitioners it was contended that the insertion of the express words ‘Subject to the Provisions of the Constitution’, etc. in Clause (1) of Article 194 and the deliberate omission of those words in Article 215 must lead

to the necessary conclusion that Article 194 in its entirety, including Clause (2), is

subject to Article 215 and there can be no absolute immunity for any Member of the State Legislature from contempt proceedings in respect of anything said by him in the legislature. It was urged that irresponsible statements made by Members of the Government on the floor of the House, which after due publication would cause irreparable damage to the prestige of the high court and thereby affect its independence. The opposite party relied on Article 194 which, according to him, gives absolute privilege, i.e. immunity in respect of anything said in the legislature, and relied on the decision of Dr Suresh Chandra Banerji v. Punit Goala [55 CWN 745; AIR 1951 Cal 176], wherein it was held that Clause (2) of Article 194 protects absolutely completely

a Member in respect of any speech made by him in the legislature or in Committee

of the legislature, and the words spoken within the four walls of the Assembly are absolutely privileged and no proceedings, either civil or criminal, can be taken in respect of them.

The court was of the view that even if the speech made amounts to contempt, it

was beyond the jurisdiction of the court to look into the matter as it was exclusively within the domain of the legislature. The court found that the speech made by the Chief Minister amounts to contempt of court, but it justified the speech by saying that ‘presumably the sudden interruption of his speech ... irritated him and made him use words which he might not have used in a calmer atmosphere’.

Case 77

I: M. Jacob v. State of Kerala and Anr 1999 CriL] 3609 C. S. Rajan, J.

Date of Judgment: 24.03.1999

FACTS-IN-BRIEF

The petitioner, a Member of the Kerala Legislative Assembly, was also a former minister of Irrigation and Culture. During his tenure as minister, he had participated in the meeting of the subject Committee of Karappara-Kuriyarkutty Project for Irrigation constituted by the Legislative Assembly. It was alleged that the project work started on 15 July 1995 without necessary requirement/sanctions. In the subject Committee

meeting held on 16 May 1995, though the petitioner was aware of the position that

the necessary sanctions were not obtained for the concerned work and to begin the

work without the necessary sanction is not permissible, he observed silence. It was alleged that the petitioner observed silence when he had the responsibility to speak. A vigilance case was registered against the petitioner in connection with the irregularities and charges of corruption associated with the project. The charges also related to various omissions and commissions on the part of the petitioner and abusing his official position as a minister for irrigation which helped the contractor to derive pecuniary advantage and cause huge loss to the exchequer. The Governor of Kerala granted sanction to prosecute the petitioner. Subsequently, the petitioner approached the court for a declaration that the order of sanction granted by the Governor of Kerala is void, inoperative and unsustainable in law. ISSUES

1. Whether the petitioner is protected under Article 194 of the Constitution of India?

T. M. Jacob v. State of Kerala and Anr

46|

2. Whether the petitioner is entitled to an opportunity to be heard before granting sanction to prosecute him by the Governor?

DECISIONS

1. Since the petitioner is not being proceeded against for any conduct as a Member

of a Legislative Assembly in the proceedings in the Assembly or in the subject

Committee, he cannot take refuge under Article 194. 2. Before granting sanction by the Governor to prosecute a Member of Parliament, the authority or Government is not bound to give an opportunity of being heard to the delinquent/accused.

SUMMARY OF THE JUDGMENT The petitioner argued that the criminal prosecution against him was based on his conduct as a Member of legislature and a minister who participated in the proceedings of the subject Committee. The main anchor of his argument was that a minister and a Member of the Legislative Assembly are protected under Article 194 of the

Constitution of India and, therefore, he cannot be prosecuted on the basis of a

decision taken by a Legislature Committee. No criminal liability can be fastened on him in respect of anything done by him as a Member of the Committee as no Member

of a legislature of a State shall be liable to be prosecuted in any court in respect of

such action. P V. Narasimha Rao v. State [(1998) 4 SCC 626: 1998 Cri LJ 2930] was

relied upon by the petitioner. Hence, the petitioner argued that the order of sanction

to prosecute the petitioner granted by the Governor of Kerala is void, inoperative and

unsustainable in law. Since there was reference to the petitioner's chairing of the subject Committee

meeting, the petitioner contented that no prosecution can be launched against him on the basis of his participation in the subject Committee meeting. But the court

held that no prosecution has now been launched against the petitioner on the basis of his participation in the subject Committee. The petitioner's participation was not the foundation of the charge. The charge framed against the petitioner was entirely different, which was under the provisions of the Prevention of Corruption Act and various sections of Indian Penal Code that the petitioner abused his official position and is guilty of corruption. Moreover, Article 105(2) protects a Member of Parliament against proceedings in court that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament. Hence, the court arrived at the conclusion that since the petitioner was not being proceeded against for any

conduct as a Member of the Legislative Assembly in proceedings in the Assembly or in the subject Committee, he could not take refuge under the dictum laid down in the Narasimha Rao’s case.

462

Summary of Cases

‘The petitioner has also prayed for an opportunity of being heard before the Governor's sanction. Regarding this issue, the court answered that the petitioner is not entitled to be heard before granting sanction to prosecute him by the Governor. By relying on A. Veeraswamy v. Union of India [1991

(3) SCC 655], State of Bihar v.

P P Sharma [1992 Supp (1) SCC 222) and State of Maharashtra v. Ishwar Piraji Kalpatri [(1996)

1 SCC

542), the court reiterated the well-settled position that the

order of sanction is only an administrative act and not a quasi judicial one. Therefore,

before granting sanction the authority or the appropriate Government is not bound to

give an opportunity of being heard to the delinquent/accused. The logic behind this position is that the accused is getting full opportunity to prove his innocence during the trial and a pre-trial opportunity is not contemplated by the statute.

Case 78

Tej Kiran Jain and Ors v. N. Sanjiva Reddy and Ors AIR 1970 SC 1573: (1970) 2 SCC 272: [1971] 1 SCR 612 M. HipayaTuLLAH, C. J., A.N. Grover, A. N. Ray, I. D. Dua, J. C. SHAH AND K. S. HEGDE, J. J.

Date of Judgment: 08.05.1970

FACTS-IN-BRIEF In this case an appeal was filed from the order, 4 August 1969, of a Full Bench of the

High Court of Delhi, rejecting a plaint filed by the six appellants claiming a decree for Rs 26,000 as damages for defamatory statements made by Shri N. Sanjiva Reddy

(former Speaker of the Lok Sabha), Shri Y. B. Chavan (Home Minister) and three

Members of Parliament on the floor of the Lok Sabha during a Calling Attention Motion. The high court held that no proceedings could be taken in a court of law

in respect of what was said on the floor of Parliament in view of Article 105(2) of

the Constitution. The high court, however, certified the case as fit for appeal to the Supreme Court. The facts in brief are that the appellants claim to be the admirers and followers of Jagadguru Shankaracharya of Goverdan Peeth, Puri. In March 1969 a World Hindu Religious Conference was held at Patna. The Shankaracharya took part in it and is

reported to have observed that untouchability was in harmony with the tenets of Hinduism and that no law could stand in its way and to have walked out when the

National Anthem was played. On

2 April

1969, Shri Narendra

Kumar

Salve, MP

(Betul), moved

a Calling

Attention Motion in the Lok Sabha and gave particulars of the happening. A discussion followed and the respondents execrated the Shankaracharya. According to the appellants, the respondents gave themselves up to the use of language, which was more commonplace than serious, more lax than dignified, more unparliamentarily than sober and jokes and puns were bandied around the playful spree, and His Holiness

464

Summary of Cases

Jagadguru Shankracharya Ananta Shri Vibushit Swami Shri Niranjan Deva Teertha of Goverdhan Peeth, Puri, was made to appear as a ‘leprous [sic] dog’.

The appellants who hold the Shankaracharya in high esteem felt scandalised and brought the action for damages placing it at Rs 26,000. The plaint was rejected as the high court held that it had no jurisdiction to try the suit. ISSUE

Whether Article 105(2) guarantees complete immunity in respect of anything said by a Member of Parliament in Parliament? DECISION

The article confers immunity inter alia in respect of ‘anything said ... in Parliament’. The word ‘anything’ is of the widest import and is equivalent to ‘everything’. SUMMARY OF THE JUDGMENT On the behalf of appellant it was argued that the immunity granted by Article 105(2)

is relevant to the business of Parliament and not to something which was utterly irrelevant.

On this contention the court observed:

In our judgment it is not possible to read the provisions of the article in the way suggested. The article means what it says in language which could not be plainer. The

article confers immunity inter alia in respect of “anything said ... in Parliament”. The

word “anything” is of the widest import and is equivalent to ‘everything’. The only limitation arises from the words “in Parliament” which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any court. This immunity is not only complete but is as

it should be. It is of the essence of parliamentary system of Government that people's representatives should be free to express themselves without fear of legal consequences.

What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. The courts have no say in the matter and should really have none.

Shri Lekhi, on behalf of the appellant, attempted to base arguments upon the analogy of an Irish case and another from Massachusetts reported in May’s Parliamentary Practice. But the court rejecting it held, ‘In view of the clear provisions of our Constitution we are not required to act or analogies of other legislative bodies’. Finally the appeal was dismissed without any order about costs.

Case 79

Tej Kiran Jain and Ors v. N. Sanjiva Reddy and Ors AIR 1971 Delhi 86: 7(1971) DLT 1: MANU/DE/008 1/1969 H. R. KHanna, C. J., S. K. Kapur, HarpayaL Harpy, S. N. ANDLEY AND PRAKASH NaraIN, J. J.

Date of Judgment: 04.08.1969

FACTS-IN-BRIEF

In the present case it was alleged that on 2 April 1969 certain discussions took place in Lok Sabha about remarks made by Jagadguru Shankaracharya of Puri regarding untouchability. Shri Tej Kiran Jain and five other plaintiffs filed the present suit for recovery of Rs 26,000 as damages against five defendants. It was alleged that during the course of the discussion, certain remarks were made by the defendants, which were

defamatory and calculated to lower in public estimation Jagadguru Shankaracharya. The plaintiffs, accordingly, claimed a decree for recovery of Rs 26,000 as damages from the defendants. During the pendency of the suit, an application under Order 7 Rule 11 and Order 27-A of the Code of Civil Procedure read with Article 105 of the Constitution was filed on behalf of the Union of India praying that the plaint might be rejected under Order 7, Rule 11 of the Code of Civil Procedure as the present suit was not

maintainable in view of the provisions of Article 105 of the Constitution. When the case came up before Prakash Narain, J., on 30 July 1969, the learned Judge observed that the matter was of considerable importance as to the interpretation of the Constitution. He directed that a notice be issued to the Attorney General. He also referred the matter to the Chief Justice for constituting a Bench of two or more Judges

for disposal of the contentions raised. It is in these circumstances that the case was posted for hearing before the Full Bench of the Delhi High Court.

466

Summary of Cases

ISSUE

Whether Article 105(2) guarantees complete immunity in respect of anything said by

a Member of Parliament in Parliament? DECISION

The words ‘anything said’ are of the widest amplitude and it is not permissible to read any limitation therein. The object of the provision obviously was to secure absolute freedom in discussion in Parliament and to allay any apprehension of a legal proceeding in a court of law in respect of anything said in Parliament by a Member there.

SUMMARY OF THE JUDGMENT Plain reading of the Article 105(2) goes to show that as regards anything said by a

Member of Parliament in the Parliament or any committee thereof the Constitution has guaranteed full protection and provided complete immunity against any proceedings in a court of law. It is significant that while clause (1) of Article 105

starts with the words “subject to the provisions of the Constitution”, there is no such limitation so far as clause (2) of Article 105 is concerned.

Shri Lekhi, on behalf of the plaintiffs, contended that what is protected by Clause (2)

of Article 105 is something which is germane to the matter before the House. It is contended that so far as other utterances are concerned they are not covered by the above clause.

In reply to this contention, the court held:

In our opinion, this contention is devoid of force because, as observed earlier, the

protection given by the above clause is to anything said in Parliament. The words “anything said” are of the widest amplitude and it is not permissible to read any limitation therein. The object of the provision obviously was to secure absolute freedom in discussion in parliament and to allay any apprehension of a legal proceeding in a court of law in respect of anything said in Parliament by a member thereof. It is not disputed that the impugned remarks were made in Parliament while it was in a regular Session.

The court also observed, ‘Every remark made by a member of the Parliament is fully protected’. Reference has also been made by Shri Lekhi to the rules of practice in Parliaments of other countries. But the court did not look into the provisions of other countries

and observed, ‘In our opinion, it would have been necessary to refer to those rules if

our Constitution had been silent on the point. As an express, provision has been made in Clause (2) of Article 105 of the Constitution giving complete immunity

to the

Tej Kiran Jain and Ors v. N. Sanjiva Reddy and Ors

467

members of Parliament for anything said by them during the Session of Parliament,

no help can be derived from the practice prevailing in other countries’.

On the basis of the above observation, the court held the suit as barred by the

provisions of Clause (2) of Article 105 of the Constitution and therefore rejected the

plainc.

Case 80

Thankamma v. The Hon'ble Speaker, Legislative Assembly, Travancore-Cochin State and Anr AIR 1952 Trav-Cochin 166 GOVINDA PILal, J. Date of Judgment: 22.01.1952

FACTS-IN-BRIEF

The petitioner and one Dr Madhavi Amma were candidates to fill the vacancy of a seat from Ernakulam women’s constituency to the Travancore-Cochin Legislative Assembly. There was great rancour among the Members of the Legislative Assembly of Cochin against the Travancoreans on account of non-inclusion of Cochinites in the Cabinet. One Mr P. K. Menon induced the petitioner to tender an undated letter of resignation, which could be used if the unpleasant political crisis persists, with a proposal that they would induce Dr Madhavi Amma to withdraw from the election. The letter of resignation was given only as an earnest of giving a real letter of resignation, if subsequent events and political situation called for it. It was also promised that the letter would be returned to her, if the situation grew better. The petitioner was assured

that the letter would not be used by them against her wishes. Her rival candidate withdrew her candidature and the petitioner was declared to have been returned unopposed. The political situation eased and the Cochinites were proposed to be included in the Ministry. The petitioner demanded the return of the resignation letter. Mr P. K. Menon refused to return it to the petitioner and said that he would despatch the letter. In order to prevent foul play, the petitioner sent an express telegram to the Secretary, Legislative Assembly, intimating that if any undated letter of resignation happens to reach, no action was to be taken on such letter. She also sent another letter to the same effect by registered post. However, the Speaker refused to administer oath to the petitioner. Rather, she was asked either to confirm or repudiate the authorship of the resignation letter dated 13 September 1951. She gave

Thankamma v. The Hon’ble Speaker, Legislative Assembly

469

in detail the circumstances under which she had written the undated letter and she repudiated her resignation. However, the Secretary notified on 15 October 1951 that the petitioner had resigned her seat in the Travancore-Cochin Legislative Assembly

with effect from 13 September 1951. ISSUES

1. Whether the petitioner's resignation is a valid one? 2. Whether the petitioner is entitled to be administered an oath? 3. Whether the matter concerning administration of oath in the House is protected from judicial scrutiny under Article 212?

DECISION

One cannot resign from a prospective status, which one may or may not get in the ordinary course of events. The letter of resignation was written before securing the seat and it was not intended to be one for resigning her seat. Hence, it is a void document and the petitioner had not lost her seat by virtue of such a letter of resignation. Since the Speaker has wrongly refused to administer oath to the petitioner, she is entitled to an order directing the Speaker to administer oath and allow her to take her seat as a Member in the Assembly. Administration of oath is not a function exercised by the Speaker in his official capacity and will not give him any special prerogative to seek shelter under Article 212. The taking of oath under Article 188 is not an item in the conduct of business mentioned in Article 212. It is only a condition precedent to entitle the Members to sit in the Assembly and conduct the business.

SUMMARY OF THE JUDGMENT The petitioner contented that she had repudiated the genuine character of the alleged

letter of resignation and her telegram, etc. would show that she had repudiated the alleged letter. Hence, the non-administration of oath is illegal, unjust and opposed to

natural justice. She prayed for direction to abrogate the notification of resignation. It

was countered on the following grounds:

Article 190(a)(b) and hence no question of ‘acceptance of resignation’ arose.

3. Resignation is a unilateral act and no power was vested in any authority to accept or reject the same.

EE-

is purely related to the privileges of Members and procedures to be adopted by the House of legislature, the petitioner is not entitled to any writ. 2. A Member's resignation automatically puts an end to his/her membership under

--

1. Since the civil courts have no jurisdiction to entertain and consider a matter which

470

Summary of Cases

4. Since the authorship of the letter is admitted it was no part of the function of the Speaker to go further into the matter. The court held that the mere receipt by the Speaker of a letter of resignation purporting to be from a Member will not cause that Member's seat to become vacant. It is open to the Speaker to enquire whether that is a genuine letter or a forged letter. What is contemplated under Article 190(3) is a resignation with the full consent of the writer

of his/her own volition, and not any letter of resignation. The letter was made at a time when the petitioner was not even an elected Member of the Assembly. Her securing the seat was after she passed the letter. She cannot resign a prospective status. Hence, the resignation letter was not intended to be one resigning the seat, and it was void document and by virtue of that the petitioner had not lost her seat in the Assembly. The resignation referred to in Article 190 of the Constitution should be a genuine and voluntary resignation and a fraudulent letter despatched by post with forged date by a third party without authority would not come under this section.

Case 81

The Election Commission of India and Anr v. Dr Subramanian Swamy AIR 1996 SC 1810: 1996 (3) SCALE 734: (1996) 4 SCC 104 A. M. AumapI, C. J. I., N. P. SincH AND B. N. Kirpat, J. J.

Date of Judgment: 23.04.1996

FACTS-IN-BRIEF

Ms Jayalalitha was elected to the Legislative Assembly of Tamil Nadu in the general elections of 1991, and subsequently sworn in as the Chief Minister of the State. Dr Swamy filed a petition under Article 192, alleging that she was disqualified, under Article 191, for being a partner in a firm in contract with the State Government. The Governor forwarded the petition to the Chief Election Commission as required under Article 192(2). In response, Ms Jayalalitha filed two writ petitions, first challenging the grounds of disqualifications and, second, a writ of prohibition against Shri Seshan

(Election Commissioner, single member) to not deal with the petition on likelihood of

bias in favour of Dr Swamy for the close association of Dr Swamy with Shri Seshan and also the fact that Dr Swamy’s wife was the lawyer of Shri Seshan in the suit filed by him in Bombay. Both the petitions were before a Single Bench of the high court, the decision

of which came before the Division Bench, High Court of Madras. In the meantime,

the President promulgated an ordinance titled the Chief Election Commissioner and Election Commissioners (Conditions of Service) Amendment Ordinance, 1993. The

Election Commission then challenged the decision of the Division Bench requiring the court to determine the question regarding the participation of Shri Seshan in decision making.

472

Summary of Cases

ISSUE Can the Election Commission

take a decision if one of its Members

from participating in the decision making?

is disqualified

DECISION

The words ‘shall obtain’ the opinion of the Election Commission, under Article 192, makes it obligatory for the Governor to seek such opinion. The opinion of the Election Commission is inclusive of the decision of the Chief Election Commissioner, whether it is a single or multi-member body. In light of the facts of the case, the proper course is that the Commissioner should call a meeting of the Commission to adjudicate on the issue of disqualification. He should act as the Chairman but may rescue himself by announcing that he would not participate in the formation of such opinion. If a unanimous opinion is reached, it is to be communicated to the Governor. In the absence of one, the doctrine of necessity can be invoked for the Chief Election Commissioner to express his opinion.

SUMMARY OF THE JUDGMENT The Single Judge of the high court allowed the first writ petition of the two filed by Ms Jayalalitha, holding that the evidence placed on record clearly established that Ms Jayalalitha’s apprehension that Shri Seshan may not be able to take an

impartial view because of his strong bias in favour of Dr Swamy could not be said to

be unreasonable and it would be just, fair and proper to issue a writ of prohibition

directing Shri Seshan to refrain from expressing any opinion on Dr Swamy’s petition

alleging disqualification, since at the relevant time the Election Commission was a onemember body. On the second writ petition, the Judge held that the decision on the issue raised by Dr Swamy lay within the exclusive domain of the Governor. Conclusively, he opined that Ms Jayalalitha had not incurred the alleged disqualification. Subsequently, Dr Swamy filed two Special Leave Petitions under Article 136 of the Constitution questioning the correctness of the view taken by the learned Single Judge in the said two petitions. The court did not entertain the said petitions and directed the petitioner to move the Division Bench in appeal, on which an appeal was preferred in the High Court of Madras. At this point the President of India promulgated an ordinance (1993) wherein the Election Commission was made a multi-member body.

The Division Bench of the Madras High Court raised three points for determination,

namely (i) whether the learned Judge was justified in examining if Ms Jayalalitha had incurred the disqualification set out in Article 191(1) of the Constitution read with

Section 9A, of the Represenation of the People Act; (ii) whether the apprehension of bias entertained by her against Shri Seshan had reasonable basis; and (iii) whether the

doctrine of necessity-staod arqracted after the enactmentroftheiordinance of 1993.

The Election Commission of India and Anr v. Dr Subramanian Swamy

473

In its judgment, the Bench held that the question whether Ms Jayalalitha had or had not incurred the disqualification under Article 191(1) of the Constitution read with Section 9A of the Represenation of the People Act ought to have been left for decision by the Election Commission under Article 192(2) of the Constitution and

the learned Single Judge should not have gone into it as it fell within the exclusive domain of the Election Commission. On the second question, the Division Bench held that on the facts and in the circumstances of the case Ms Jayalalitha would be

justified in entertaining a reasonable apprehension of bias or at least the likelihood of bias on the part of Shri Seshan in favour of Dr Swamy and consequently a reasonable doubt that she would not get a fair hearing from Shri Seshan. On the third point, the Division Bench held that in view of the appointment of two Election Commissioners after the promulgation of the ordinance and in view of Sections 9 and 10 extracted earlier, the doctrine of necessity cannot be applied since the decision could be taken

by the Election Commission if need be by majority. The Division Bench allowed the writ appeal and gave the following direction: A writ of prohibition is issued to the first respondent (Mr T.N. Seshan) from in any manner dealing with, hearing, adjudicating upon or disposing of the memorandum dated

2.10.1992

filed by the second

respondent

(Dr Subramanian

Swamy)

and

forwarded by the Governor of Tamil Nadu to the first respondent. We make it

clear that it is open to the Election Commission, while regulating the procedure for

transaction of its business or allocation of its business to allot it to any one of the

other two members or to both, as it deems necessary and proper.

Aggrieved by the decision of the Division Bench in the appeal arising out of Writ Petition Special Leave to Appeal was granted by the court, wherein the court looked into the question on the participation of Shri Seshan in decision making, having regard to the allegation of bias made against him. According to the apex court, Dr Swamy’s allegations of disqualification of Ms Jayalalitha for being a partner of the firm carrying on business in the State of Tamil Nadu under the name and style of ‘Jaya Publications’, since that firm had a subsisting

contract with the State Government, which was a business enterprise to make profit, were to be addressed by the Governor by virtue of the application of Article 191(1)(e) of the Constitution. Article 192(1) provides that if any question arises as to whether a Member of a House of the Legislature has become subject to any disqualification mentioned in Article

191(1), the question shall be referred for the decision of the

Governor whose decision ‘shall be final’. Thus it is the Governor who has to take

a decision and such decision is made final subject to 192(2), which reads: ‘Before

giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion’. It is obligatory to obtain the opinion of the Election Commission and the further stipulation that the Governor ‘shall act’ according to such opinion leaves no room for doubt that the Governor is bound to act according to that opinion. In effect and substance, the decision of the Governor must depend on the opinion of the Election Commission

474

Summary of Cases

and none else, not even the Council of Ministers. Thus the opinion of the Election Commission is decisive since the final order would be based solely on that opinion. Another issue the court deliberated upon was whether the Election Commission can take a decision if one of its Members is disqualified from participating in the decision

making. Article 324(1) of the Constitution invests in the Election Commission the function of superintendence, direction and control of elections, and Clause (2) of

that article provides that the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix. Thus, Article 324(2) envisages a multi-member

Election Commission with the Chief Election Commissioner as its Chairman.

At the time the Election Commission was a single member body, before the Single

Judge, it was contended by learned counsel for Shri Seshan that his client is not in the least keen to participate in the decision making in view of the findings recorded by

learned Single Judge as well as the Division Bench of the high court, but he contested the litigation because in his view he cannot excuse himself from the process of decision making. He contended that when the matter was before learned Single Judge, he had

invoked the doctrine of necessity as he honestly believed that he was duty bound to

decide the issue referred to him and if he refused to do so he would be failing to discharge his constitutional obligation. It was to emphasise that he was under a constitutional

obligation to decide the issue and communicate his opinion to the Governor to enable him to discharge his function under Article 192(2) of the Constitution. Furthermore,

it was contended that even after the Election Commission was converted into a multimember body with effect from 1 October 1993, on which date the other two Election Commissioners came to be appointed, the position in law remained unaltered

because the Constitution does not conceive of an Election Commission without a

Chief Election Commissioner. According to him, the structure of Articles 324(2) and 324(3) and the use of the word ‘and’ after the words ‘Chief Election Commissioner’

and the word ‘other’ preceding the words “Election Commissioners’ leaves no room

for doubt that the Constitution makers visualised the existence of the Chief Election

Commissioner at all times and safeguarded the said office by providing for the removal

of the incumbent occupying the said office in the same manner as a Judge of the

Supreme Court. The constitution of the Election Commission under the scheme of

Article 324 of the Constitution clearly is that it must comprise the Chief Election

Commissioner as its Chairman if it is a multi-member body; in other words, there

cannot be a properly constituted Election Commission without its Chairman and hence his participation in decision making cannot be excused and must be permitted

on the doctrine of necessity.

On the other hand, learned counsel for Ms Jayalalitha reiterated the contention of bias on the ground that the facts on record revealed that there was unity and identity of interest between Dr Swamy, his wife and Shri Seshan, since it was established beyond

any manner of doubt that they had developed a family friendship which went beyond a mere professional relationship and it would be embarrassing both for Shri Seshan and

The Election Commission of India and Anr v. Dr Subramanian Swamy

475

Ms Jayalalitha if the former sat in judgement over the complaint of disqualification made by Dr Swamy. There can be no doubt, contended counsel, that the function which the Election Commission is expected to perform under Article 192(2) of the Constitution can be said to be quasi-judicial in character and once it is shown that the apprehension of bias is reasonable and genuine, the participation of the Chief Election Commissioner in the decision-making process would be in breach of the principles of natural justice and unless it is shown that there is no alternative but for him to sit in judgement, the rule of natural justice must prevail because justice must not only be done but must also appear to be done. Further on, the doctrine of necessity can have no play because in the case of the multi-member body, the person, be he the Chief

Election Commissioner or an Election Commissioner, against whom the charge of bias is established ought to excuse himself from the proceedings so that the decision taken is not rendered vulnerable and the apprehension of prejudice is totally removed. The apex court after much examination delivered and said: Conscious of the fact that Shri Seshan is occupying a high constitutional office we have given our anxious consideration to this aspect of the matter. While we are inclined to think that Shri Seshan as a high constitutional functionary may not carry

any grudge or malice against Ms. J. Jayalalitha, there can be no doubt that his close

association with Dr. Swamy’s family and the professional relationship with his wife who is representing him in the suit at Bombay and the other circumstances, all of

which have been summarized ... are sufficient to raise a reasonable apprehension in the mind of Ms. J. Jayalalitha that he may be biased in favour of Dr. Swamy even if

he does not entertain any ill-will towards her.

The Election Commission

referred to in Article 192(2) of the Constitution would

be the one appointed under Article 324(2) of the Constitution. This article in terms

provides that the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners as the President may fix from time

to time. Therefore, the Chief Election Commissioner is a must whether it is a single-

member or multi-member body. It is true that under Article 192 if any question arises in regard to disqualification referred to in Article 191(1), the question has to be referred to the Election Commission for its opinion and the Governor has to give his decision in accordance with that opinion. The participation of the Chief Election Commissioner in the backdrop of the findings recorded by the learned Single Judge as well as the Division Bench of the high court would certainly permit an argument of prejudice, should the opinion be adverse to Ms Jayalalitha. Therefore, apart from the

legal aspect, even prudence demands that the Chief Election Commissioner should refuse himself from expressing any opinion in the matter. It is well settled that the law permits certain things to be done as a matter of necessity

which it would otherwise not countenance on the touchstone of judicial propriety.

Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases

of bias where there is no other authority or Judge to decide the issue. If the doctrine

476

Summary of Cases

of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit there from.

If the choice is berween allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision

making.

In the present case also if the two Election Commissioners

are able to

reach a unanimous decision, there is no need for the Chief Election Commissioner to participate, if not, the doctrine of necessity may have to be invoked. Therefore, the court carves out an alternative course to be followed wherein the Chief Election Commissioner should call a meeting of the Election Commission to adjudicate on the issue of disqualification of Ms Jayalalitha on the grounds alleged by Dr Swamy.

After calling the meeting, he should act as the Chairman but then he may refuse himself by announcing that he would not participate in the formation of opinion.

If the two Election Commissioners reach a unanimous opinion, the Chief Election Commissioner will have the opinion communicated to the Governor. If the two Election Commissioners do not reach a unanimous decision in the matter of expressing their opinion on the issue referred to the Election Commission, it would be necessary for the Chief Election Commissioner to express his opinion on the doctrine of necessity.

The majority opinion could be communicated to the Governor to enable him to take

a decision in accordance therewith as required by Article 192(1) of the Constitution.

Case 82

The Election Commission of India v. N. G. Ranga and Ors AIR 1978 SC 1609: (1978) 4 SCC 181: [1979] 1 SCR 210 Y, V. CHANDRACHUD, C. J., A. D. Kosuat, A. P. SEN, N. L. UNtwaLia AND R. S. SARKARIA, J. J. Date of Judgment: 17.08.1978

FACTS-IN-BRIEF

Respondent no. 1, Shri N. G. Ranga, was declared elected to the Lok Sabha on 28 April 1967 in a bye-election from Srikakulam constituency, defeating respondent

no. 3, Shri B. Rajagopalarao. The Election Commission of India, the appellant in this case, called upon respondent no. | by a notice dated 7 July 1967 to show cause why

he should not be disqualifted for failure to lodge the account of his election expenses within the time and in the manner required by law. Accepting the explanation submitted by respondent no. 1, the appellant condoned the delay and decided to take no further action. Respondent no. 2 thereafter submitted a petition to the President of India under Articles 84, 101, 102, 103 and 104 of the Constitution alleging that respondent no. 1, who was a sitting Member of the Lok Sabha, had become subject to the disqualification

mentioned

in Article

102(1). The President, exercising his

powers under Article 103(2) of the Constitution, sought the opinion of the appellant and the appellant issued a notice dated 6 June 1968 to respondent no. 1 calling upon him to submit his reply to the allegations contained in respondent no. 2’s petition to the President. On this, respondent no. 1 filed a writ petition in the High Court of Andhra Pradesh asking for a writ prohibition forbidding the appellant from taking further steps and for a declaration that the appellant had no jurisdiction to inquire into the petition submitted by respondent no. 2 to the President of India. By its judgment, the high court allowed the writ petition and issued a writ of prohibition as prayed

478

Summary of Cases

for. The

Election

Commission

was

then

granted

Article 133(1)(b) of the Constitution to appeal.

a certificate

of fitness

under

ISSUE

Whether the appellant (Election Commission of India) had jurisdiction to issue notice to respondent no. 1, calling upon him to submit his explanation in regard to the allegations of disqualification contained in the petition presented by respondent no. 2 to the President of India? DECISION

The Election Commission had the power and authority to require respondent no. 1 to furnish information on matters which were relevant to the subject matter of the

inquiry, namely the allegations contained in the petition presented by respondent no. 2 to the President of India. The authority of the Election Commission emanates from the Representation of the People Act, 1951, which confers extensive powers of summoning and enforcing the attendance of any person, examining him on oath, the discovery and production of any document and receiving evidence on afhdavits, etc. in regard to inquiries pertaining to questions referred by the President for its opinion under Article 103 of the Constitution. SUMMARY OF THE JUDGMENT In light of the facts, the court stated that by Clause (2) of Article 103, the President

was bound to obtain the opinion of the appellant before giving his decision on the question. Not only that, but the President was further bound to act according to the opinion given by the appellant. The President therefore acted both in the exercise of constitutional authority and in the discharge of his constitutional obligation in referring the question raised by respondent no. 2’s petition for the opinion of the appellant. Another question up for consideration was whether on receiving the President's communication asking for its opinion, the appellant committed any error of law or acted beyond its jurisdiction in seeking the explanation of respondent no. 1., to which the court said: The Representation, of the People Act 43 of 1951, “the Act”, confers extensive powers

on the Election Commission in regard to inquiries pertaining to questions referred by the President for its opinion under Article 103 of the Constitution. Section 146(1) of the Act provides, in so far as material, that where in connection with the tendering of any opinion to the President under Article 103, the Election Commission considers it necessary or proper to make an inquiry and if it is satished that on the basis of

The Election Commission of India v. N. G. Ranga and Ors

479

documents produced by the parties it cannot come to a decisive opinion on the matter which is being inquired into, it shall have for the purposes of inquiry the powers which a civil court has while trying a suit in respect, inter alia, of summoning and enforcing the attendance of any person, examining him on oath, the discovery and production of any document and receiving evidence on affidavits.

The court found no doubt that the Election Commission, by reason of these provisions, had the power and authority to require respondent no. 1 to furnish information on matters which were relevant to the subject matter of the inquiry, namely the allegations contained in the petition presented by respondent no. 2 to the President of India. Article 103(2), as it stood then, required the President to obtain the opinion of the Election Commission before deciding the question referred to in Clause (1) of that article. The President was bound to act according to the opinion given by the Commission. By the Forty-second Amendment, Article 103(2) requires the President to consult the Election Commission. The amended article expressly confers power on the commission to make, for that purpose, ‘such inquiry as it thinks fit’.

The implication of the unamended article was in truth and substance the same,

namely, that since the Commission was charged with the obligation to tender its

opinion to the President, it had the power to make such inquiry as it thought fit in order to enable it to express its opinion, which under the law as it stood then was binding on the President. The Forty-second amendment expressed clearly what was necessarily implicit in the old provision. If the Constitution envisages that the Commission should have the power to make such inquiry as it thinks fit even when its opinion is not binding on the President who is merely required to ‘consult’ the Commission, it cannot be that the Commission could tender its binding opinion

without the right and, nay, the duty of making the necessary inquiry. Respondent no. 1 rushed to the high court somewhat hurriedly, probably thinking that the appellant

having already condoned the delay which had occurred in filing the return of the election expenses, he had not incurred or become subject to any disqualification as mentioned

in Article

102(1)

of the Constitution. Therefore the appellant had no

justification for calling upon him to submit his explanation. The appellant could and should have in the first instance verified from its own record whether there was any justification for the grievance made by respondent no. 2. But in giving to respondent no. 1, an opportunity to submit his explanation, the appellant, far from acting beyond the scope of its statutory and constitutional powers, acted in conformity with the principles of natural justice. Article 103(1) gives finality to the President's decision which, under the old provision, had to be in conformity with the opinion of the Election Commission. Before giving an opinion, which thus had finality, the Commission acted but fairly in asking respondent no. | to submit his say. As stated above, it had the power to ascertain what explanation respondent no. | had to give an answer to respondent no. 2’s allegations. Also, the high court misdirected itself in reaching the conclusion that the appellant acted beyond its jurisdiction in issuing the notice to respondent no. 1 calling upon him

480

Summary of Cases

to submit his explanation in regard to the petition to the President. According to the under Section 10A of the act, “cannot be under Article 103 of “the Constitution”.

allegations made by respondent no. 2 in his high court, ‘facts leading to disqualification the subject matter of inquiry and decision It is impossible to accept this statement of

law in view of the express provision contained in Article 103(1)(a) that if any question

arises as to whether a Member of either House of Parliament has become subject to any of the disqualifications mentioned in Article 102(1), the question shall be referred for the decision of the President. Article 102(1) provides by sub-clause (e) that a person

shall be disqualified for being chosen as, and for being, a Member of either House

of Parliament if he is so disqualified by or under any law made by Parliament. By

Section 10(A) of the act, the Election Commission has the power to declare a person to be disqualified if it is satisfied that he has failed to lodge an account of election expenses within the time and in the manner required by or under the act and has no good reason or justification for the failure. A declaration of disqualification made in pursuance of power conferred by Section 10(A) is a declaration made by the Election Commission under a law made by Parliament. It, therefore, attracts Article 102(1)(e) and consequently Article 103(1) of the Constitution.

Moving further, the court also stated that the high court thereafter proceeded

to hold that the question whether respondent no. | had become subject to any disqualification under Section 10(A) of the act did not arise on the facts stated in the

petition by the respondent. This the apex court did not accept. Primarily because though

respondent no. 2 was not in a position to make a categorical assertion in his petition that respondent no. | had incurred a specific disqualification, he did make allegations generally in regard to disqualifications said to have been incurred by respondent no. 1. Upon the making of these allegations a question arose or contemplated by

Article 103(1)(a) of the Constitution and the President had to obtain the opinion of

the Election Commission on that question. Respondent no. 2’s petition could not have been rejected by the President without reference to the Election Commission

on the ground that the allegations made by respondent no. 2 were unfounded or unsubstantial. In light of the above reasons, the appeal filed by the Election Commission was allowed and the writ petition filed in the high court by respondent no. 2 stood

dismissed.

Case 83

Udai Narain Sinha v. State of Uttar Pradesh and Ors AIR 1987 All 203 S. K. DHAON AND S. K. MooKERJEE, J. J.

Date of Judgment: 23.01.1986

F ACTS-IN-BRIEF The term of the Eighth Legislative Assembly was to expire on 27 June 1985. The

Governor of Uttar Pradesh, in the exercise of powers under Section 15 of the Representation of the People Act, 1951, issued a notification on 30 January 1985 calling upon all the Assembly constituencies in the State to elect Members in accordance

with the provisions of the act, the rules and the orders made thereunder. The Election Commission, on 10 March 1985, issued a notification under Section 73 of the act

notifying the names of the Members elected in the various constituencies, barring a few, where elections could not be held for one reason or the other. On the same date, the Governor, in the purported exercise of powers under Clause (b) of Article 174(2)

of the Constitution, issued a Assembly with effect from that that the Governor accepted the Minister, and the Members of

notification dissolving the Uttar Pradesh date. A notification issued on the same day resignation of Shri Narain Dutt Tewari, the his Cabinet with effect from the afternoon

Legislative announced then Chief of the said

day, and directed that the Chief Minister should continue to function along with his

Cabinet issued to Minister. existence

till a new Cabinet was constituted. On 11 March 1985, a notification was the effect that the Governor appointed Shri Narain Dutt Tewari as the Chief The jurisdiction of the court under Article 226 was invoked to challenge the of the Ninth Legislative Assembly.

ISSUE

Could the sitting of the Ninth Legislative Assembly be terminated even though no date had been appointed for its first meeting?

482

Summary of Cases

DECISION

It is open to the Governor to dissolve a Legislative Assembly whenever and at whatever

time he is so advised. In Article 174(2) the significant words are that the Governor may from time to time dissolve the Legislative Assembly. In reference to the facts, in

the absence of the appointment of a date for the first meeting of the Ninth Assembly in accordance with Article 172(1) its life did not commence for the purposes of that article even though it may have been constituted by virtue of the notification under Section 73 of the act. If no sitting of the Ninth Assembly took place, no occasion arose

for the termination of the sitting by dissolution. The Governor, therefore, neither in

fact nor in law dissolved the Ninth Legislative Assembly. SUMMARY OF THE JUDGMENT The petitioner, on 30 January 1985, challenged ground that the Governor, in substance, played as eventually the life of the Eighth Legislative taken under Article 174 of the Constitution. The court, in response at first, referred to

the validity of the notification on the a fraud upon the electors of the State Assembly was cut short by an action Anand Mohan’s case [AIR 1985 All

114] in this regard. In the said case, the court considered Article 83(2) and Clause (b)

of Article 85(2) of the Constitution and held that the framers of the Constitution

contemplated the dissolution of the House of the People by two methods, one by the action of the President, and the other by the natural efHuxion of time. This scheme is

maintained in relation to the Legislative Assemblies. In Article 172, it is provided that every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and the expiration of the said period of five years shall operate as a dissolution of the Assembly and in Article 174(2)

it is laid down that the Governor may, from time to time, dissolve the Legislative Assembly. It is evident that the dissolution of the Legislative Assembly is envisaged both under Articles 172 and 174. The expiration of the duration of an existing Legislative Assembly results in its dissolution. Adding

further,

the words

‘unless sooner

dissolved’

in Article

indicate that no constitutional right has been conferred either upon Assembly or its Members to insist that it (the Assembly) shall not be the expiration ofa period of five years from the date appointed for its The Governor used the words in the sense in which the framers of the

172(1)

clearly

a Legislative dissolved till first meeting. Constitution

designed them and not in the popular sense in which the petitioner wants them to be read. He did not and could not intend to surrender his constitutional power of

dissolving the Assembly on a future date, if the exigency of the situation so required. Therefore, there is no occasion for describing the act of the Governor in issuing the notification, dated 30 January 1985, as fraudulent.

The court also referred to the enacting part of Section 73 of the act which provides,

upon the issue ofa notification by the Election Commission in the Official Gazette of

Udai Narain Sinha v. State of Uttar Pradesh and Ors

483

the names of the Members elected in the various constituencies, that the Legislative Assembly ‘shall be deemed to be duly constituted’. The proviso is worth mentioning here.

It provided that the issue of such notification shall not be deemed:

(a) to preclude:

(i) the taking of the poll and the completion of the election in any parliamentary or Assembly constituency or constituencies in which the poll could not be taken for any reason on the date originally fixed under Clause (d) of Section 301; or

(ii) the completion of the election in any parliamentary or Assembly Constituency or constituencies for which the time has been extended under the provisions of Section 153; or (b) to affect the duration of the House of the People or the State Legislative Assembly if any, functioning immediately before the issue of the said notification. In Anand Mohan’s case, as the court explained further, they had pointed out that the provisions of the act shall be subservient to the provisions contained in the Constitution on account of the operation of Article 327. In other words, in the event of a real conflict between the provisions of Section 73 of the act and the constitutional provisions, the former must give way to the latter. Clause (b) of the proviso to Section 73 takes the matter beyond the pale of any controversy that the duration of the Eighth Legislative Assembly, which was admittedly functioning on or before 10 March 1985, remained wholly unaffected. Its life remained intact till 27 June 1985. It continued to function and had a legal existence. In the absence of the appointment of a date for the first meeting of the Ninth Assembly

in accordance with Article

172(1)

its

life did not commence for the purposes of that article even though it may have been constituted by virtue of the notification under Section 73 of the act. In other words, the life of the Ninth Legislative Assembly did not begin. If the life did not begin, the question of its being cut short did not arise. If no sitting of the Ninth Assembly took place, no occasion arose for the termination of the sitting by dissolution. If it was not in existence it could not be dissolved. As it was still-born within the meaning of Article 172, the question of its being put to death within the meaning of Article 174 had

no

relevance.

The

conclusion

is inevitable

that Article

174(1)

contemplates

the dissolution of that Legislative Assembly, the life of which commenced within

the meaning of Article 172(1). The Governor, therefore, neither in fact nor in law

dissolved the Ninth Legislative Assembly. On 10 March 1985, he exercised his powers to dissolve the Eighth Legislative Assembly. Conclusively, the court stated, there is no force in the submission of the petitioner that since the Eighth Legislative Assembly was not in session on 10 March 1985, it could not be dissolved. As per the court, such a contention is not warranted either on principle or on authority. We have seen that in Article 172 the life of the Legislative Assembly starts from the date appointed for its first meeting. Under Article 174, the Governor is empowered to summon a Legislative Assembly from time to time.

484

Summary of Cases

However, six months shall not intervene between such sitting of a Legislative Assembly in one session and the date appointed for its first sitting in the next session. The feature that emerges from these provisions is that the computation of the period of five years starts from the date appointed for the first meeting and the running of time is not arrested, even though the legislature may or may not be in session. In Article 174(2) the significant words are that the Governor may from time to time dissolve the Legislative Assembly. It is, therefore, apparent that it is open to the Governor to dissolve a Legislative Assembly whenever and at whatever time he is so advised.

ta

=

wt.

2b

fe

Case 84

Yeshwant Rao Meghwale v. Madhya Pradesh Legislative Assembly and Ors

AIR 1967 MP 95: MANU/MP/0025/1967 V. Drxit, C. J. AND R. J. BHaRE, J.

Date of Judgment: 29.08.1966

F ACTS-IN-BRIEF

On 16 March 1966, when a motion for suspending Shri Ram Swaroop Khare who was obstructing the business of the House and defying the Chair from the service of the House for the rest of the day was moved, some Opposition Members created

disorder and also obstructed the Marshal and the security forces from taking away from the House Shri Haribhau Joshi. Shri Joshi had been asked by the Chair to leave the House, but he had refused to do so. During the course of this disturbance and confusion, Yeshwant Rao Meghwale, leaving his seat, ran up to the dais, jumped on it, and assaulted the Deputy Speaker who was presiding over the sitting of the House and who was at that moment on his feet adjourning the House for a while. The House

reassembled after a few minutes and in the resumed sitting, the motion suspending Shri Khare was carried. Some Members of the Opposition, including the two petitioners, still continued to offer obstruction to the deliberations and create confusion and disorder to such an extent that the Deputy Speaker was compelled to adjourn the sitting of the House to the next day. On 17 March 1966, the Deputy Speaker, at the very commencement of the sitting, named five Members of the Assembly under Rule 265 of the Rules of Procedure and Conduct of Business for their conduct and behaviour during the previous day’s sitting. Pandhari Rao Kridutta, who was present in the House, did not attempt to explain his conduct or the allegations made against him. After the motion was put to vote and carried, Kridutta suddenly left his seat,

went to the front of his desk, stood there and abused the Chair. He also hurled a chappal at the Deputy Speaker. The chappal missed the Deputy Speaker. Thereupon,

486

Summary of Cases

the applicant Kridutta threw another chappal at the Deputy Speaker which after brushing his hair fell on the floor. Kridutta then left the House. After this incident

Shri Rameshwar Agnibhoj, a Member of the Assembly, moved a motion for expulsion

of Yeshwant Rao Meghwale. Shri Umrao Singh, another Member, moved a motion for

expulsion of Kridutta. Both these motions were put to vote and carried.

The petitioners filed the present petition under Articles 226 and 227 of the

Constitution, seeking declarations, inter alia, notwithstanding passing of the two resolutions, on 17 March 1966, by the Madhya Pradesh Legislative Assembly

expelling them from the House, that their seats have not become vacant and prayed that the respondents—the Madhya Pradesh Legislative Assembly, the Secretary of the Assembly and the State of Madhya Pradesh—be restrained by a direction from giving effect in any manner to the resolutions.

ISSUES ». Whether the high court can enquire into the question of power and privilege of

to

the House enabling it to expel a Member found guilty of breach of privilege or contempt of the House, rendering his seat vacant.

Whether, if such privilege is found to exist in the House, the court can judge the occasion and the manner of its exercise;

3. Whether the Legislative Assembly and its Secretary are amenable to the jurisdiction of this court.

DECISION The Madhya Pradesh Legislative Assembly has the power of expelling a Member so as to render his seat vacant and the two petitioners’ expulsion on 17 March 1966 was

in exercise of this power; and that it is not open to the petitioners to canvass here

that there was no justification for their expulsion or no opportunity of explaining the

allegations made against them was given before the resolutions were passed. The relief claimed by the petitioners must, therefore, be refused. SUMMARY OF THE JUDGMENT The petitioners contented that the resolutions passed by the Assembly expelling them were unconstitutional, u/tra vires and void in law for the reason that under Article 194(3) of the Constitution the Assembly has no power to expel any Member

and make his seat vacant; and that the seat of a Member can become vacant only in

the circumstances mentioned in Articles 190, 191 and 192. They also contended that the privilege and power of expelling a Member enjoyed by the House of Commons

of Parliament of the United Kingdom is not available to the Assembly as that power exercised by the House of Commons

is an adjunct of the privilege and power to

Yeshwant Rao Meghwale v. Madhya Pradesh Legislative Assembly and Ors

487

regulate its own Constitution, and the Legislative Assembly has no such power. It was also submitted by them that in the Rules of Procedure and Conduct of Business framed by the Assembly under Article 208 of the Constitution there is no rule for expulsion of Members though there are rules for dealing with withdrawal and suspension of Members. The applicants also made a grievance that the resolutions were passed by the Assembly without giving them any opportunity to explain the allegations and to say that they were untrue. In the returns filed by the State in each petition, a preliminary objection to the maintainability of the applications was raised. It was contended that the petitioners were not entitled to bring up, canvass or question before any court of law, whether, by a petition under Article 226 of the Constitution or otherwise, howsoever, the propriety, legality or validity of the proceedings within the four walls of the House. It was argued that the applicants cannot in this court question the correctness of the factual statements contained in the two resolutions as to their conduct in the course of the sitting of the Assembly on 16 March 1966; that they cannot question in this court the propriety, legality or validity of the two resolutions; and that in regard to the matters impugned respondent no. 1, the MP Legislative Assembly, and respondent no. 2, Secretary of the Assembly, are not amenable to the jurisdiction of this court. On merits, it was submitted by the State that by virtue of Article 194(3) of the Constitution, the powers, privileges and immunities of the Assembly are those of the House of Commons of the Parliament of the United Kingdom at the commencement of the Constitution, and that on 26 January 1950 the House of Commons exercised the privilege and power of expelling any Member not as an adjunct of its privilege and power to regulate its own constitution but as a power to punish a member found guilty of a breach of privilege or contempt of the House. It was stated in the return: power to expel a member is inherent in every legislative body and it is a power of self-

protection and the House is necessarily the sole Judge of the exigency which justifies

and requires its exercise; that Articles

190(3),

190(4) and

192 of the Constitution

are not exhaustive of all cases of vacation of seats; that they deal with limited cases

of disqualifications and that Article 194(3) is an additional power given to the State Legislature to bring about vacation of a seat and is not abrogated by anything contained in Article 190 or 191 or even 192.

In the return of the State it was pointed out that neither the resolutions passed by the House nor the notifications issued in the Extraordinary Gazette of 19 March 1966 professed to declare that the seats of the petitioners had become vacant, and that

the vacation of the seats was a direct consequence of the exercise by the Assembly of

the power to expel the petitioners. As regards the rules of Procedure and Conduct of Business in the Madhya Pradesh Vidhan Sabha framed by the Assembly under Article 208(1) of the Constitution, it was contended that they merely regulate the procedure and conduct of business in the House and do not define the powers, privileges and immunities of the House as contemplated by the first part of Article 194 (3). And

it was further contended that the absence of a rule concerning the procedure to be

488

Summary of Cases

followed for expelling a Member does not in any way affect the power of the House under Article 194(3) to expel a Member.

All the questions raised before the court involved the construction of Article 194(3) of the Constitution. The first two clauses of Article 194 deal with freedom of speech in the legislature and immunity from any proceedings in any court in respect of anything said or any vote given by a Member in the legislature or in any Committee thereof and immunity to all persons in respect of the publication by or under the authority of the legislature of any report, paper, votes or proceedings. The Supreme Court was of the considered view: The language of Article 194 (3) is plain enough to show that whenever a power or

privilege is claimed by the House there must be an enquiry whether that power or privilege was a subsisting one in the House of Commons on 26th January 1960 and was recognized by the English Courts. This enquiry can clearly be by the Court ... once a privilege is found to exist; it is for the House to judge of the occasion and of the manner of its exercise. The Court cannot interfere with an erroneous decision

by the House or its Speaker in respect of a breach of its privilege. This proposition cannot be disputed in view of the decision of the Supreme Court in M. S. M. Sharma v. Sri Krishna Sinha, 1959 Supp (1) SCR 806: (AIR 1959 SC 395).

The court observed that it had the power to enquire into the existence of a power or privilege claimed by the House and therefore it was idle to contend that the Madhya Pradesh Legislative Assembly and its Secretary are not amenable to the jurisdiction of this court.

One of the arguments raised before the court was: ... when a member is expelled he does not incur a disqualification and he can again

seek election and be elected. That being so, Articles 190 and 191 which deal with

disqualifications of members have no relevance in the construction of Article 194 (3).

According to learned Advocate-General, Article 194 (3) operates independently of Articles 190 and 191 which are not exhaustive of all cases of vacation of seats and

those articles do not prohibit a seat of a member becoming vacant as a result of his expulsion.

The learned Advocate General strenuously contended that there is no justification whatsoever for putting a restricted meaning on the latter part of Article 194(3) denying to the State Legislature the right of expelling a Member so as to render his seat vacant when no article of the Constitution imperatively demands such a restriction: that the exercise of this power by the State Legislature does not depend on any rule framed by the State Legislacure under Article 208(1): and that, therefore, the absence of a rule

governing expulsion of a Member in the Rules of Procedure and Conduct of Business of the Madhya Pradesh Assembly cannot be taken at negativing the power conferred by Article 194(3) or prohibiting the exercise of that power. The whole question is reduced to this: Whether the exercise of the power by the State Legislature to expel a Member rendering his seat vacant, which power was admittedly

and undoubtedly enjoyed by the House of Commons at the commencement of the

Yeshwant Rao Meghwale v. Madhya Pradesh Legislative Assembly and Ors

489

Constitution and recognised by the English Courts, would be incompatible with any provision of the Constitution or the structure of the Constitution. The grounds which learned counsel for the petitioners urged for a restrictive construction of Article 194(3) denying to the State Legislature the power of expulsion were: ° First, that the House of Commons exercised this power because of its privilege to regulate its own constitution and that under our Constitution the State Legislature has no power to regulate its own constitution; and, * Second, that the vacation of a seat of a Member once elected can only be in the circumstances mentioned in Articles 190 and 191 and that these articles do not provide for the vacation of a seat of a Member by his expulsion from the House. It would be pertinent to mention here that the Privy Council has repeatedly held that while the colonial legislative bodies do not possess the powers, privileges and immunities which the British Parliament has, they have inherent power to do whatever may be absolutely necessary to carry on business in an orderly manner. In the exercise of this

power, remove, or exclude a Member for a time, or even expel him if business could

not be carried on without his expulsion (See Doyle v. Falconer, [(1860) LR 1 PC 328 at

p. 340] and Barton v. Taylor, [(1886) 11 AC 197 at p. 209]). If the inherent power to expel a Member has been conceded to a subordinate legislative body established and functioning under a statute of British Parliament and which has under the statute no power to regulate its own constitution, then a fortiori when Article 194(3) says that the powers, privileges and immunities which vested in the House of Commons at the commencement of the Constitution vest in the State Legislature, it must be held that the State Legislature has inherent power to expel a Member for its protection, selfsecurity and self-preservation and for the orderly conduct of its business.

List of Articles for Section 1

Andhyarujina, T. R., 2001-3,

‘Suspension and Expulsion of Members

Legislatures in India’, Law and Justice, 8(10): 85-93.

of

‘Anti Defection Law: Mere Tinkering’, Economic and Political Weekly, 1991, 26: 2656-57. Balasubramanyan, P. K., 2006, “Parliamentary Privilege: Complementary Role of the Institutions’, Supreme Court Cases, February, 2(3): J1-14. Basavaraju, C., 1999, ‘Parliamentary Privileges v. Fundamental Rights: Need for a Codified Law’, /ndian Bar Review, July-December, 26: 155-64. Bhabhra, Hari Shankar, 1991, ‘Broadcasting and Telecasting of Parliamentary Proceedings’, Journal of Parliamentary Information, September, 37: 319-24. Bhardwaj, R. C., 1993, “Telecasting of Parliamentary Proceedings’, Journal of Parliamentary Information, March, 39: 300-8. Bhargava, G. S., 2000, ‘Decline in Coverage of Parliamentary Proceedings’,

Mainstream, 38(20): 28-89.

Bhargava, G. S., 1997, ‘Missing Analysis of Confidence Vote’, Mainstream, 35(20): 33-34.

Bhat, P. Ishwara, 1994, ‘Free Legislative Choice and Anti Defection Law: A Plea

for Integrated Reading’, Academy Law Review, 18(1-2): 65-96. Bhushan,

Prashant,

1997,

‘Are Amendments

Required

in the Anti-defection

Act’, Economic and Political Weekly, 32: 2987-88. Bhushan, Prashant, 1992, ‘Anti-defection Act: A Much Abused Legislation’, Lawyers Collective, February, 7: 4-8. Chakraborty, Shatadru, and Dhananjaya Mishra, 2007, ‘Office of Profit Controversy: Critical Analysis of the Parliament (Prevention of Disqualification) Amendment Act, 2006’, Labour Law Journal, March, 3: J35—44.

Chand, Phul, and S. Rangaswami, 1987, ‘Anti-Defection Law: The Constitution (Fifty-Second Amendment) Act, 1985’, Journal of Constitutional and Parliamentary Studies, January—June, 21: 117-28.

List of Articles for Section |

49|

14. Chhabra, Rajeev, 2004, ‘Privileges of MLA’s versus Fundamental Rights of Citizen’, Maharashtra Law Journal, (1): 7-9. 15. Chopra, Nirmal, 2007, “Powers of the Legislature and Judicial Review of Legislation’, All India Reporter, July, 94(1123): J106-10. 16. Dang, Satya Pal, 1995, “Mr. Speaker’, Mainstream, 33(42): 11-14. 17. Das Hrudaya Ballav, 1991, ‘Position & Role of the Speaker under the Constitution

Concerning Matter of Disqualification of a Member of Parliament under Anti Defection Law’, Cuttack Law Times, 71: 13-19.

18. Das, A.

K.,

1981,

‘Parliament:

Judiciary

Conflict:

French

Way

Our,

Law

Quarterly, January—March, 18: 29-3 1p. 19. Das, Hrudaya Ballav, 1991, ‘Parliamentary Privilege and Independence of Judiciary’, Journal of Constitutionaland Parliamentary Studies, January—December, 25: 27-37.

20. Das,

Hrudaya Ballav, “Speaker and the Judiciary’, All India Reporter, 1991 October, 78: J147—5 1p.

21. Davar, Maneck,

1988, ‘Legislature vs. Judiciary: Confrontation’, Lex et Juris,

April, 3, 30-31, 34-36. 22. ‘Defects in the Anti Defection Act, Lawyers Collective’, 1991 December, 6: 27.

23. Devi,

Bellary

Uma,

1991,

‘Parliamentary

Privileges

vis-a-vis

Fundamental

Rights: Need for Comprehensive Law on Privileges of the Parliament’, All India

Reporter, December, 78: J177-85.

24. Dharmadan, N., 2004, “Whether Decisions of the Speaker of the Legislature Justifiable’, All India Reporter, March, 91: J81-5. 25. Diwan, Paras, 1979, ‘Aya Ram Gaya Ram: The Politics of Defection’, Journal

of the Indian Law Institute, July-September, 21: 291-312. 26. D’Mello, Pamela, 1992, ‘Anti-defection Act: When the Solution Becomes a Problem’, Lawyers Collective, April, 7: 26-27. 27. Dutt, Narain, 2008, “Tug of War between Judiciary and Parliament: A Burning Question’, Mainstream, March, 41(13): 24-27.

28. ‘Election

of the Deputy Speaker of the Thirteenth Lok of Parliamentary Information, 1999 September, 45: 291-307.

29. Faleiro, Eduardo,

28.

2003,

‘Law against Defections’, Mainstream,

Sabha’, Journal May, 41(22),

30. Gaur, K. D., 2004, ‘Criminal Abuse of Constitutional Privileges, Scholasticus’,

Journal of National Law University, January, 1(2): 102-21.

31. Gautam, Lalit Mohan, 1991, ‘Speaker and Judicial Review’, Civil and Military

Law Journal, January—March, 27: 71-74. 32. Gupta, Gulab, 1996, ‘Anti-Defection Law: An Introspection’, Central India Law Quarterly, April-June; 9: 127-44. 33. Gupta, Shrinivas, 1995 1994-95, ‘Speaker in India: A Critical Evaluation with Special Reference to UK and USA’, Law Review (Punjab), 16-17, 67-82.

492

List of Articles for Section |

34, Gupta, Shriniwas, 1995, ‘Office of the Speaker in India: A Critical Study with

Reference to UK and USA, Central India Law Quarterly, October-December,

8: 407-23. 35. Gupta, Subhash

C.,

2004,

‘Parliamentary

Privileges

vis-a-vis

Fundamental

Rights: No Escape from Codification’, Law Teller, 12: 88-91. 36. Inderjit, 1991, ‘Keep Speaker above Poll Politics’, Journal of Parliamentary Information, September, 37: 373-75. 37. Indrayan, N. K., 2004, ‘Fundamental Rights and Parliamentary Privileges: A Jurisprudential Exegesis’, Ad/ India Reporter, August, 91: J231-33.

38. Jain, Neha, 2002, ‘Qualification to Become Chief Minister: A Review of the Jayalalitha Case’, Indian Bar Review, 29 (3&4): 185-202. 39. Jain, S.K., 2005, ‘Parliamentary Sovereignty v. Judicial Supremacy: Jharkhand

and Beyond’, Mainstream, May, 43(22): 24-25.

40. Jain, S. N., 2004, ‘People’s Sovereignty, Parliament's Role and Judicial Authority in India: A Plea for Reviewing the Theory of “Basic Structure”’, Journal

of Constitutional and Parliamentary Studies, July-December, 38(1-4): 175-86.

41. Jethmalani, Mahesh, 1990, ‘Anti-defection Act: A Shoddy Piece of Legislation’, Lex et Juris, December, 5: 10-12. 42. Joshi, Manohar, 2003, ‘Address by Speaker, Lok Sabha, Manohar Joshi at

66th Conference of Presiding Officers of Legislative Bodies in India’, Journal

of Parliamentary Information, June, 49: 212-24.

43, Kashyap, Subhash C., 1988, ‘Party Whips, Parliamentary Privilege and Anti-

Defection Law’, Journal of Parliamentary Information, June, 34: 151-76. 44, Khare, Rajiv, 2001-02, ‘Anti Defection Law: A Redundant Legislation’, Aligarh Law Journal,; 16-17: 159-69.

45, Khare, Rajiv, 2003, ‘Anti-Defection Law: Welcome Reforms’, Economic and Political Weekly, May, 38(19): 1837-38. 46. Koolwal, Mahesh, 1999, ‘Privileges of the Legislatures’, Journal of Legal Studies,

29: 84-90. 47. Mahajan, R. K., 1990, ‘Should Governors Resign with the Change of Government in the Center’, Indian Bar Review, January—June, 17: 114-22.

48. Malherbe, E. F. J. 1992, “Towards a Theory of Parliamentary Procedure’, Journal

of Constitutional and Parliamentary Studies, January—December, 26: 81-103.

49. Malhotra, G. C., 1989, ‘Privileges of Delhi Metropolitan Council vis-a-vis other

Indian Legislature’, Journal of Constitutional and Parliamentary Studies, January— December, 23: 129-51. 50. Malhotra, Saurabh, 2000 ‘Failure of Anti Defection Law’, Central India Law Quarterly, October-December,

13: 473-77.

51. Masud, S. A., 1975, ‘Parliament and the Judiciary’, Calcutta Weekly Notes, 89:

72-74.

52. Menon, N. R. Madhava, 2004, ‘Parliament and the Judiciary: Basic Structure Revisited’, Indian Advocate, 32: 19-28.

List of Articles for Section |

493

53. Menon, P. K., 2005, “Parliament and the Judiciary’, Kerala Law Times, October, 2: 15-16.

54. Menon, P. K. R., 2001, ‘Speaker and the Oath Controversy’, Kerala Law Times, 3: 47-49. 55. Minattur, Joseph, 1977, ‘Parliaments Rights and Immunities’, Journal of the Indian Law Institute, April-June; 19: 182-87. 56. Muttalageri, N. H., 1993, ‘Parliament and Judiciary’, Journal of Parliamentary Information, March, 39: 318-34. 57. Narayanan, P G., 1993, ‘Parliament, Executive and Judiciary’, Journal of Parliamentary Information, March, 39: 143-64. 58. Narayanaswami, N. R., 1992, “Disqualification: Scope of Articles 191 and 192’, Calcutta Weekly Notes, 97: 2-12. 59. ‘Oath or Affirmation by M.L.As (art. 188) & Oaths of Office & of Secrecy By Ministers (art. 164(3) of Const. of India’, Calcutta Weekly Notes, 1981-82, 86: 116.

60. Panchal, K. M., 1991, “Disturbance during President’s/Governor’s Address’, Journal of Parliamentary Information June, 37: 159-G7. 61. Pande, Jagadisha Chandra, 1980, ‘Judges Thwarting Constituent Power of

Parliament’, Journal of Constitutional and Parliamentary Studies, April-June, 14: 126-35. 62. Pandey, B. N., 1993, ‘Speaker in the Lok Sabha and the House of Commons’, Journal of Parliamentary Information, March, 39: 201-12. 63. ‘Parliament and Judiciary’, Civil and Military Law Journal, 1997 January—March,

33: 49-53. 64. Pati, Suvendu Kumar, 1998, ‘Redefining the Role of Speaker under the AntiDefection Law, 1985’, All India Reporter, November, 85: J186—91.

65. Pati, Suvendu Kumar, 1998, ‘Redefining the Role of Speaker under the Antidefection Law, 1985’, All India Reporter, November, 85: J186—91. 66. Patil, S. H., 1991, ‘Speaker Protem’, Journal of Constitutional and Parliamentary

Studies, January—December, 25: 15-26. 67. Patil, Shivraj V., 1991, ‘Office of the Speaker-Mavalankar Days’, Journal of Constitutional and Parliamentary Studies, January—December, 25: 1-14. 68. Pillai, K. N. Chandrasekharan, 2002, ‘Oath of a Legislator’, Academy Law Review, 26(1—2): 247-54.

69. Prajapati, Rohit, 1997, “Narmada, the Judiciary and Parliament’, Economic and

Political Weekly, 32: 693-94. 70. Prasad, Anirudh, 1991, “Do the Indian legislatures Enjoy a Privilege “Not to Codify their Privileges’? Civil and Military Law Journal, April—June, 27: 81— 95. 71. Prasad, Anirudh, 1990, ‘Do the Indian Legislatures Posses Power to Expel their Members?’, Civil and Military Law Journal, October-December, 26: 296-307. 72. Prasad, J. K., 1995, ‘Address by the President/Governor and Privilege Issues’, Journal of Parliamentary Information, March, 41: 9-18.

494

List of Articles for Section |

73 . Prasad, Jugal Kishore, 1993, ‘Speaker and Court’s Subpoena’, Journal of Parliamentary Information, March, 39: 335-42. 74. Prasad, Kamala, 1997, ‘Confidence Vote, Parliament and the New Politics’, Mainstream, May, 35: 13-18.

75. Qureshi, Mohd. Shafi, 1993, ‘Parliament and Judiciary’, Journal of Parliamentary Information, March, 39: 11-14.

76. Rai, Kailash, 1997, ‘Fear of Defection and Coalition Government: Suggestions for Reforming the Anti Defection Law’, Supreme Court Journal, (3): 96. 77. Rakshit, Nirmalendu Bikash, 2004, ‘Parliamentary Privileges and Fundamental

Rights’, Economic and Political Weekly, 39(13): 1379-83. 78. Rakshit, Nirmalendu Bikash, 2004, ‘Power and Position of the Lok Sabha’, Economic and Political Weekly, October, 39(40): 4410-12.

79. Ranga, Mavalankar N.G., 1992, ‘Parliament During and After Speaker’, Journal

of Parliamentary Information, March, 38: 21-30. B. R. Nagaraja, 1988, ‘Karnataka Legislature (Powers, Privileges Immunities) Bills: Avoiding Hoary Precedents’, Lex et Juris, July, 3: 7.

80. Rao, 81. Rao,

D.

Sripada,

1993,

‘Anti

Defection

Law:

Split

in

Parties’,

&

Journal

of Parliamentary Information, March, 39: 99-106. 82. Rao, M.N., 1995, ‘Parliamentary and Legislative Privileges and their Relevance’, Andhra Law Times, April, 77: 58-68.

83. Rao, P. P., Expulsion of MPs for Corruption, /ndian Advocate, 2005 33: 35-38. 84. Rao, P. P., 1992, ‘Judicial Review of Speaker's Decision on Defections: Kihoto Hollchan v. Zachillhu’, Indian Advocate, January-June, 24: 60-63. 85. Rao, V. J., 1988, ‘Anti-Defection Laws: Constitutional Validity’, Al India

Reporter, September, 75: J129-33.

86. ‘Result 87. ‘Review 88. Sachar, 42(11): 89. Sachar,

of the Confidence-Vote’, Mainstream, 1998, 36(15): 2.

of Defection Law’, Calcutta Weekly Notes, 1992, 98: 98. Rajindar, 2004, ‘Codify Legislative Privileges’, Mainstream, March, 14-15.

Rajindar, 2007, ‘Judiciary-Parliament: No Confrontation Please’, South

Asia Politics, May, 6(1): 3.

90. Sanghi,

G. L., 1997,

1996-97, ‘Role of the Speaker: Reflections on some

Important Contributions’, /ndian Advocate, 21: 101-11.

91. Sarwar, Ghulam,

1993, ‘Anti Defection Law: Problems and Prospects’, Journal of Parliamentary Information, March, 39: 107-12.

92. Sathe, S. P., 1997, “Conflict berween Parliament and Judiciary: Basic Structure Doctrine’, Lawyers Collective, 12: 22-26.

93. Sezhiyan, Era, 2003, ‘Legislative Privileges and Fundamental Rights’, Mainstream, November, 41(50): 5—7. 94. Sharma, Jitendra Kumar, 2003, ‘Legislative Competence and Power to Overrule the Judgment of a Court of Law’, All India Reporter, December, 90: 359-63.

95. Sharma, Ramendra Kumar, 2004, ‘Legislative Privileges in India and the Need

for Codification’, All India Reporter, April, 91: J106—16.

—

List of Articles for Section |

495

96. Shukla, B. R., 1976, ‘Parliament, the Executive and the Judiciary in India’, Journal of Parliamentary Information, January—March, 22: 36-43. 97. Singh, K. Natwar, 1992, ‘Anti-Direction Law and Judicial Review’, Journal 98. 99. 100. 101.

102.

of Parliamentary Information, March, 38: 31-37. Singh, Sudama, 1991, ‘Anti-Defection Law: The Pros & Cons’, Journal of Constitutional and Parliamentary Studies, January-December, 25: 38-55. ‘Speaker's Score’, Economic and Political Weekly, 1992, 27: 1768. Suresh, V. and Nagasaila, D., 1994, ‘Legislature Privileges, Judicial Powers’, Civil and Military Law Journal, October-December, 29: 314-17. Tripathi, Keshari Nath, 1993, ‘Anti Defection Law’, Journal of Parliamentary Information, March, 39: 129-37. Venugopal, K. K., 1981, ‘Judiciary vis-a-vis Parliament and the Executive: Scope for Reform’, Journal of Bar Council of India, 8: 459-68.

103. Vinod, M. J., 1991-92, ‘Issues of Privilege and Jurisdiction: Is Codification a Wayour?’ Mainstream, 30(33): 13-14.

Case Index

A

Article 143 case, see Keshav Singh

A. J. Faridiv. Chairman, UP Legislative Council, 12 A. K. Gopalan case, 155-56 A. K. Roy v. Union of India, 74, 153

A. K. Subbiah v. The Chairman, Karnataka

Legislative Council, 33n, 138n, 140n A. K. Subbaiah v. Shri Ramakrishna Hegde, 86, 158-62

A. Kunjan Nadar, \63-64

A. Kunjan Nadar v. The State, 47, 50-51, 53

A. M. Paulraj v. The Speaker, Tamil Nadu Legislative Assembly, 4\n, 166-68, 216

A. Swamickan v. K. Venkatachalam and Anr, 88, 169-71

A. Veeraswamy v. Union of India, 462 Ajit Singh v. State (Delhi), Through CBI, 57, 169

Amarinder Singh v. Special Committee, Punjab Vidhan Sabha and Ors, 173-75 Anand Bihari Mishra v. Ram Sahay, \\n, 105, L111, 173-75

Anand Mohan v. Union of India, 64, 179-82, 482-83

Ansumali Majumdar and Ors v. The State

of West Bengal and Anr, 43-44, 47, 50, 70, 102n, 183-84

Antulay v. Nayak, 216

Arnold v. King Emperor, (1914), 326

B Baker v. Carr, USA, 157

Baljeet Singh v. Election Commission of India, 84, 112, 185-90

Barton v. Taylor, 489

Bhagwan Dass Sehgal v. State of Haryana, 87, 192-93

Bhajaman Behrav. Speaker, Orissa Legislative Assembly, 79

Biharilal Dobray v. Roshan Lal Dobray, 87, 195-98

Board of Mining Exam v. Ramjee, 217 Bradlaugh v. Gossett, 210, 345, 390, 405, 453-54

Brijbhushan v. The State of Delhi (1950), 326 Brundaban Nayak v. Election Commission of India, 85-86,

199-203, 229

C C. Srikisen v. State of Hyderabad and Ors, 73, 124, 137n, 204—5

C. Subramaniam, v. Speaker, Madras Legislative Assembly and Ors, 34, 41n, 206-7

C. P Khin Maung v. Au Eu Wa, 222 Captain Ramsays case, 43 Chhabildas Mehta, MLA and Ors v. The

Legislative Assembly, Gujarat State and Ors, lin, 13, 208-12

Church of Scientology v. Johnson Smith, 352

498

Case Index

D D. Murugesan v. The Hon ble Speaker, Tamil

Nadu Legislative Assembly, 10n, 41n, 213-19

D. C. Wadhwa and Ors v. State of Bihar, 284 Dhananjay Sharma v. State of Haryana and Ors, 435 Dilipsinh Vakhatsinh Parmar v. Gumanisinh

Vaghela, Hon'ble Speaker, Gujarat Legislative

Assembly, 1390

Doyle v. Falconer, 489

Dr Jatish Chandra Ghosh v. Harisadhan

Mukherjee, 8, 32, 131, 220-24

Hardwari Lalv. Election Commission of India and Ors, 21-23, 60, 254-59 Harendranath Barua v. Dev Kant Barua, 34

Haridasan Palayil v. The Speaker of 11th Kerala Legislative Assembly, 58, 112n, 114, 138n, 260-63

Hem Chandra Sen Gupta v. Speaker, Legislative Assembly of West Bengal, 74, 124, 137n, 26466

Homi D Mistry v. Nafisul Hasan and Ors, 138n

Hri Filipe Nery Rodrigue, Member of Legislative Assembly of Goa v. Shri Sadananda Mhalu Shet, Speaker,

Dr Kashinath G. Jalmi v. The Speaker,

Goa Legislative Assembly, 139n

Legislative Assembly of Goa, 79, 93, 226-31,

429

Dr Mahachandra Prasad Singh v. Hon. Chairman, Bihar Legislative Council, 91, 234-47

Dr Suresh Chandra Banerjee v. Punit Goala, 8n, 223, 225, 459

I Indira Nehru Gandhi v. Raj Narain and Anr, 12, 45, 47, 53, 117, 134

In Re: Gujarat Assembly Election Matter, 267 In Re: Pillalamarri Venkateswaralu v. The

District Magistrict and Superintendent,

Durga Das Rathore v. The State of Bihar and

Central Jail, 43-44, 47, 49, 276

Ors, 111n, 113n, 238-42

E E. M. Sankaran Namboodripad v. T. Narayanan Nambiar, 435 Express Newspapers Ltd. v. Union of India, 326

G G. Vasantha Paiv. C. K. Ramaswami and Anr, 110n, 241, 243-46

G. Viswanathan v. The Hon ble Speaker, Tamil

Nadu Legislative Assembly, Madras, 91, 96, 237, 247-49

Godavari Mishra v. Speaker, Orissa Legislative Assembly, 138n

J

Jagjit Singh v. State of Haryana and Ors, 93, 278-80

Jai Singh Rathi v. State of Haryana, 27, 60, 107, 137, 281-83, 344

Janaganavadi Bharati v. Government of India

and Ors, 106, 284 Janardhan Reddy v. State of Hyderabad, 12n

Jaya Bachchan v. Union of India and Ors, 87, 285-87

Jayashankar Gowda v. Chief Secretary, 288-91

Joginder Singh Toor and Anr v. Union of India. 106, 292-93

Gunupati Keshavram Reddy v. Nafisul Hasan, 28, 39, 80, 396

H

K K. Anandan Nambiar case, 385

Habibullah Khan v. State of Orissa, 107

Har Sharan Varma v. Union of India, 1\3n, 252

K. Anandan Nambiar v. Chief Secretary to

Government of Madras, 43, 45, 51, 53-54,

56, 58, 69-70, 117, 274-75, 294-95 oe

Case Index

K. Anbazhagan v. The Secretary of Tamil Nadu Legislative Assembly, Madras, 21-23, 60, 296-301

K. A. Muhialagan v. P Sreenivasan and Ors, 136, 344

K L. Tripathi v. State Bank of India, 2\7 K. S. Haja Shariff. His Excellency, The

Governor of Tamil Nadu, Madras, 161 Kallara Sukunmaran v. Union of India, 298

Kesavananda Bharati case, 284

Keshav Singh v. The Speaker, 75, 207, 302-11, 313

Keshav v. State of UP, 81

Kihota Hollohon v. Zachilhu and Ors, 59,79, 93-94,

107n,

138, 161, 227, 228, 230, 312,

316, 339, 341, 415, 431-32

Koteshwar Vittal Kamath v. K. Rangappa Balinga and Co., 123

L L. K. Advani v. CBI, 35 Luis Proto Barbosa, Drv. Union of India, 95, 232-33

M

M. Kunjukrishnan Nadar v. Hon'ble Speaker, Kerala Legislative Assembly Trivandrum, 104, 105n, 320-21, 456-57

M. S. M. Sharma Iv. Sri Krishna Sinha

(Searchlight I) case, 10, 12, 28-29, 30n,

31, 38-39, 41, 81, 133, 156, 215, 323-29, 488

Madhu Parumala v. Kerala Legislative

Assembly and Ors, 114n, 330-32 Madhukar Jetly v. Union of India and Ors, 114n, 333

Maneka Gandhi v. Union of India, 215 Manglanayagi Ammal and Vedham Iyer

v. The Authorized Officer, Land Reforms,

Mohd. Aslam alias Bhure v. Union of India, 435

Mulraj v. Murti Raghunathji Maharaj, 432

N

Narasingrao Gurunath Patil v. Arun Gujarathi, Speaker, 139n Naveen Chandra Gupta Advocate v. Union of India, 134n, 342-45 Navjot Singh Sidhu v. State of Punjab, 37, 346-47

Nipamcha Singh v. Secretary, Manipur Legislative Assembly, 138n

O O. Ramalingam v. The Director, Daily Thanti, 32n, 348-49

O. S. Manian v. Speaker, Tamil Nadu Legislative Assembly, 75, 81

P PV. Narasimha Rao v. The State (CBI/SPE), 32, 35-36, 39, 56, 61, 107, 118, 131, 350-53, 409, 460

Panna Lal Aryan v. Hon'ble Speaker, Sri Balram Jakgad and Ors, \02n, 105, 359-61

Parkash Singh Badal and Ors v. Union of India, 72, 92, 94, 362-66

Pashupati Nath Sukul and Ors v. Nem

Chandra Jain and Ors, 109n, 114n, 333,

367-70

Patys case, 390 Prakash Kant v. The Speaker of Uttaranchal Assembly, Dehradun, 12, 371-72 Purshottam Lal Sharma v. State of Rajasthan and Ors, 110n, 373-78 Purushottam Nambudari v. State of Kerala, 124, 452

133n

Manilal Singh v. Dr Borobabu Singh and Anr, 435

Manjit Singh v. Maharashtra Assembly, 19n, 335-37

Mayawati v. Markandeya Chand and Ors, 80, 95, 338-41

499

R

R. v. Secretary of State (1983), 352, 354-58 R. Krishnaiah v. Union of India and Ors, 66, 379-83

R. Sudarsana Babu v. State of Kerala, 103n

500

Case Index

Raghu Raj Pratap Singh alias Raja Bhaiya v. State of UP and Ors, 47, 52, 384-85 Raghunatha Panicker v. Kujala Shankappan, 137

Raj Narain Singh v. Atmaram Govind, Speaker, Uttar Pradesh Legislative Assembly, 12, 26, 39, 61, 343, 386-98

Raja Ram Palv. Honble Speaker, Lok Sabha, 18, 20, 39, 41, 51, 56, 106-7, 135, 175, 398

Rajendra Singh Rana v. Swami Prasad Maurya, 73, 82, 85, 93, 410-18

Rajesh Ranjan v. State of Bihar and Anr, 115, 418

Ram Das Athawale v. Union of India, 419-22 Ram Dubey v. The Government of the State of Madhya Pradesh, \24n Rameshwar Prasad v. Union of India and Anr, 66, 423-27

Ravi S. Nayak and Sanjay Bandenkar v. Union of India, 78, 79-80, 84, 92, 95, 237, 428

Ravi S. Naik v. Union of India, 339, 428-33 Re: Balwant Singh case, 435 Rex v. Graham-Campbell, 390 Romesh Thapar v. State of Madras (1950), 326

S

S. Godavari Misra v. Nandakisore Das, Speaker, Orissa Legislative Assembly, \1, 78 S. P Anand v. H. D. Deve Gowda and Ors, 435

S. R. Bommai case, 426

Sajjan Singh v. State of Rajasthan, 316, 317 Sankari Prasad v. Union of India, 315-16 Saradhakar v. Speaker, Orissa Legislative Assembly, 127 Saroj Giri v. Vayalar Ravi and Ors, 33n, 58, 434-36

Sarojini Ramaswami v. Union of India, 76, 134n, 437-44

Satyapal case, 211

Sheriff of Middlex case, 390 Social Action for People’s Rights and Anr v. State of UP, 112, 445-47

Sou Suvarna Prakash Patil v. Anil Hindurao Powar, 86

Sowdambigi Motor Service v. State of Tamil Nadu, 133n

Special Reference No. I of 2002, 63 Sri Konathala Venkatraman and Anr v. State of Andhra Pradesh, 127 State v. Tribhuvan Nath Verma, 435 State of Bihar v. P P. Sharma, 462 State of Karnataka v. Union of India, 18 State of Kerala v. R Sudarsana Babu, 81, 262, 448-49

State of Maharashtra v. Ishwar Piraji Kalpatri, 462

State of Punjab v. Sat Pal Dang, 453 State of Rajasthan case, 426 Stockdale v. Honsard, 397 Sub-committee of Judicial Accountability v. Union of India and Ors, 33n, 76, 134n,

450-54

Surat Singh Yadav v. Sudama Prasad Goswami and Anr, 103, 455-57

Surendra Mohanty v. Nabakrishna Choudhary, 33n, 58, 137n, 436, 458-59

Susant Kumar Chand v. Orissa Legislative Assembly, 30n Syed Abdul v. West Bengal Legislative Assembly, 126

T

T. M. Jacob v. State of Kerala and Anr, 57, 460-62

Tej Kiran Jain and Anrv. N. Sanjiva Reddy and Anr, 31, 56, 57, 130, 463, 465-67

Thankamma v. The Hon'ble Speaker, Legislative Assembly Travancore-Cochin State, 103, 113n, 138n, 457, 468-70

The Election Commission of India v. N. G. Ranga and Ors, 85-86, 477-80 The Election Commission of India and Anr v. Dr Subramaniam Swamy, 471-76 Triveniben v. State of Gujarat, 216

U

U Aye v. U Chit H laing, 396

Udai Narain Sinha v. State of Uttar Pradesh and Ors, 65, 481-84

Umayal Achiv. Lakshmi Achi, 123 .e

50I

Case Index

Union of India v. Jyoti Prakash, 92n, 161 UP Assembly case, 11n, 17, 28-29, 33-35, 41,

W Wason v. Walter, 8n, 225

Vv

Y

75, 133, 136, 139, 215, 436

Vijiram Sutariav. Nathalal Premji Bhaavadia, 109n

Viri Sutaria v. Nathalal Premji Bhanvadia, 332 Visweshawr Rao v. State of Madhya Pradesh, \23

Wednesbury’ case. 426

Yeshwant Rao Meghwale v. Madhya Pradesh Legislative

iss

106

Assembly and Ors, 21, 23, 60, 107,

ONLY MEALS

General Index

A

Anti-defection Rules, 430

Act of Parliament, 180 acts of contempt, 27-30 punishments for, 27

advocates, and punishment for contempt for

legislature, 29 Agarwal, Justice S. C., 57, 172, 232, 312,

354, 357-58, 423, 428, 437, 450-51

Agarwal, Chief Justice S. D., 292 Agnibhoj, Rameshwar, 486 Agyan, Panna Lal, 359

Ahmad, Iqbal, 391, 392 Ahmad, Nazumuddin, 14

Ahmadi, Chief Justice A. M., 247, 471 Aiyar, Justice Chandra Sekhara, 250 Alagiriswami, Justice, 192 Ali, Justice Murtaza Fazal, 195, 367

Allahabad High Court, 26, 29, 39, 70, 75, 102, 113, 343, 434, 457 Ambedkar, B. R., 14, 84, 155

Amendment Act 25, of 1969, Haryana, 193 Anand, Justice A. S., 172, 354, 357, 358 Anantanarayanan, Chief Justice, 206

Anbazhagan, K., 296 Andhra Pradesh High Court, 124, 477

Andhra Pradesh Legislative Assembly, 379,

381

Andry, Justice S. N., 463 Anson, 299

Anti-defection Act, 290

Anti-defection Law, 90-98

anti-Hindi agitation, 296

Anti-Social Activities (Prevention) Act, 384 Assam Legislative Assembly, 34 Athawale, Ramdas, 419

Attorney General, 251, 454, 472, 474-76 Audikeshavalu, D. K., 351

Ayyangar, Justice N. Rajagopala, 224, 302

B Bachchan, Amitabh, 102, 359

Bachchan, Jaya, 285

Bachawat, Justice R. S., 294

Babu, R. Sudarsana, 448 Badal, Parkash Singh, 362-63 Barman, Justice S., 458

Bahujan Samaj party (BSP), 410-15 split in, 93

Balakrishnan, Chief Justice K. G., 174, 267, 399, 400, 419, 420, 423, 426, 427 Balasubramanyan, Justice P K., 234, 278

Bandekar, Sanjay, 226, 229, 429, 430, 433

Barbosa, Luis Proto, 96, 232, 428

Barnala, Surjit Singh, 362

Basant, Justice R., 260

Beg, Justice N. U., 12, 18, 135, 455

Bhagwati, Justice N. H., 323, 326 Bhagwati, Justice P. N., 153, 208, 209-10, 212, 304

Bhan, Justice Ashok, 267, 423 Bharucha, Justice S. P., 172, 354, 358

504

General Index

Bhaskaran, Justice K., 448 Bhatnagar, Kailash Chandra, 388-89 Bhave, Justice R. J., 485

Code of Civil Procedure (CPC), 53, 235, 236, 337, 343, 465 Committee of Privileges, 168, 324, 392 of

Bihar Legislative Assembly, 74, 234, 236-39, 323, 325, 327 elections to, 423 Bill of Attainder, 297

Conduct of Elections Rules, 169, 190

Bhushan, Shanti, 134, 249

Bill of Rights, 1689, England, 56

Biswal, P., 199 Board of Basic Education, 197 Bombay High Court, 226, 228, 429, 432 Bopanna, Justice, 288 ‘breach of privileges’, and acts of contempt,

Legislative Assembly, 40

Congress (I), 428

constituency, right of, 23 Constituent Assembly, 155, 188, 190, 328 debates, 84 Constitution of India, 3, 255-56, 447, 453 on safeguards of fundamental rights, 129 Constitution Ammendment Seventh AmendmentAct, 1964, 316 Sixteenth Amendment to, 188

Thirty-eighth Amendment Act, 156 Thirty-ninth Amendment Act, 1975, 134

26-27 Brennan, Justice, 157

British Parliament, 396, 489

Forty-second Ammendment Act, 1978,

6, 479

dissolution/prorogation of, 62-63

parliamentary practice, 271 see also House of Commons Burma legislation, 397

Forty-fourth Amendment Act, 1978, 5, 6, 9, 14, 28, 351-52, 154, 298, 301

Fifty-second Amendment Act 1985, 90, 94, 138, 236, 312-13, 315, 318, 320,

C

365, 413, 415

and freedom of speech, 59 Ninety-first Amendment Act, 2003, 91, 94, 98

Calcutta High Court, 48, 70, 74, 124, 184, 225, 264, 266

Central Bureau of Investigation (CBI), 351

Centre/Union, division of power between States and, 3

legislative powers of, 3

Constitution, Second Schedule of, 261, 450 Constitution Schedule Third of, 330, 332

Constitution, Tenth Schedule of, 59, 95-98, 312-13, 226-28, 230, 232-34, 248-49, 278-80, 317-20, 363, 365, 413, 415-17,

Chandrachud, Chief Justice, 131, 153 Chandurkar, Chief Justice M. N., 165, 169, 296

Chavan, Y. B., 463 Chief Election Commissioner, 471, 472,

474-76

Chief Election Commissioner and Election Commission (Condition of Service) Amendment Ordinance, 1993, 471

426, 431-32

constitutional immunity under, 138-39 decision of Speaker under, 78-80

Contempt of Court case, 459 courts, jurisdiction of, 132-38 power to entertain writ petitions, 75-76 Criminal Procedure Code (CrPC), 274, 302,

337

Chodankar, Dharma, 432-33

Chopdekar, Ratnakar M., 226, 229, 428-30

Choudhary, Benoy Kumar, 183

Choudhury, Nabakrishna, 458

Civil Miscellaneous Petition (CMP), 239,

247

Civil Procedure Code, 46, 48, 431

Cockburn, Chief Justice, 225

D

Dalai, Raghunath, 220

Dalal, Karan Das, Anandi Das, Justice, Das, Justice

Singh, 278 Charan, 351 183 S. K., 224

General Index Dass, Chief Justice S. R., 323

Das Gupta, Justice S. R., 183, 250

Dayal, Justice Raghubar, 199 Defence of India Act, 70 Defence of India Rules, 294

detention under, 117

Delhi High Court, 35, 56, 112, 130, 463, 465 Denman, Lord, 344 Desai, Ashok, 339 Desai, Chief Justice A. A., 371-72 Desai, Chief Justice P. D., 437 Deshmukh, P. S., 14

Dehpande, Justice, 204

Dhaon, Justice S. K., 179, 481 Dhavan, Justice Ravi S., 359 Dicey, 344

disqualification, of Members of legislature, 23, 36-37, 51, 78, 83-89 defection and, 94 Disqualification Rules, Rule 3 of, 339-40 Divan, Justice B. J., 208

Dixit, Justice, 176, 178 Dixit, Justice V., 485

Dobray, Doctrine Doctrine Drafting

Biharilal, 195 of Lapse, 207 of Necessity, 475 Committee, 15-16

D’Souza, Simon Peter, 226 D’Souza, Wilfred, 428 Dua, Justice I. D., 463 Dudhani, Satya Narain, 238, 240, 242

505

English law, of Preventive Detention, 276 Evidence Act, 337 Executive, 52, 87, 275, 337, 345, 368-69

F

Financial Bills, introduction in Parliament, 119

federal form of government, 3

freedom from arrest, of Members of Parliament, 43 freedom of Press, 326 freedom of speech, to Members of legislature, 33, 43, 326 freedom of speech, and protection from prosecution, 6

freedom of speech, in Parliament, 30 freedom of speech and protection, for Members of legislatures, 55-59 fundamental rights, 38-42, 394, 449 of Members of legislatures, 23, 35-36

G

Gajendragadkar, Chief Justice P. B., 199, 209, 294, 302 Gandhi, Indira, 167

Garg, R. K., 154-55, 157 Gauhati High Court, 34 General Election, of 1991, 351 Ghosh, Ganesh, 183

Ghosh, Jatish Chandra, 220, 224 Goa, Daman and Diu Legislative Assembly (Disqualification on Ground of Defection)

E Election Commission of India, 65, 83,

158-59, 181, 202, 239-40, 267-70, 371,

424, 445, 447, 471-81, 488-89

election petitions, 37, 89, 170, 177, 193, 228, 238, 240, 375-76 Election Tribunals, 202

Emergency laws, 45

England, Constitution of, 255, 353

parliamentary practices in, 216

see also House of Commons, House of Lords English Courts, 276

English Common Law, 28

Rules, 1986, 233

Goa Legislative Assembly, 91, 226, 232,

428-29, 433 Golden Temple Complex, Amritsar, 362 Gomango, Girdhar, 342 Gopalan, A. K., 156 Goswami, Sudama Prasad, 455 Government of India Act, of 1915, 62, 64 of 1919, 64 of 1935, 15, 62, 64 Governor, administering oath of office of Members of Legislative Assembly/Council, 111

powers of, 64, 382-83

506

General Index

power to prorogue/dissolve the Legislative Assembly, 62, 483 right to address the House, 126-27 role of, 66

Governor-General, powers of, 64

Gowda, H. D. Deve, 434-35 Gowda, Jayashankara, 288

Gujarat High Court, 208-9

Grover, Justice A. N., 463 Gujarat Legislative Assembly, 208, 267-68 Gupta, Justice A. C., 153

Gupta, Bhupesh, 183 Gupta, Gupta, Gupta, Gupta,

Chief Justice Devinder, 379 Justice J. V., 362, 366 Chief Justice Jawahar Lal, 260, 292 Naveen Chandra, 342

H habeas corpus, petitions, 274

writ of, 49, 75

Hardwari Lal, 254 Hardy, Justice Hardayal, 465 Harris, Chief Justice, 8n, 183n Haryana Legislative Assembly, 192, 278, 281

Rule 104 of, 281

Hasan, Nafisul, 250

Hegde, Justice K. S., 463 Hegde, Ramakrishna, 158 Hidayatullah, Chief Justice M., 130, 199, 294, 302, 463 High Courts, and enforcement of fundamental rights, 73 power of judicial review of, 129

powers, privileges and immunities of, 4 privileges of, 56 House of Lords, England, 167

Hyderabad High Court, 124, 204 on writ petition, 73, 74

I

impeachment process, 76

Indian Law of Defamation, 8n

Indian National Congress, 92, 279 Indian Penal Code (IPC), 8, 132, 220, 325,

346, 351, 354, 460-61

Inquiry Committee, 439-42 Interim Legislature Act, 111

(Act No 23 of 49), Madhya Bharat, 176 Ismail, Justice, 206

J

Jain, Justice D. K., 399, 400 Jain, Justice M. L., 373 Jain, Justice P. K., 434 Jain, Justice Prem Chand, 254-55 Jain, R. K., 339 Jain, Tej Kiran, 465 Jalmi, Kashinath, 226, 429, 432 Jayalalitha, J., 471-75 Jethmalani, Ram, 157, 227 Jetly, Madhukar, 331 Joshi, Haribhau, 485

Judges, Constitution on removal of, 128 and punishment for contempt of legislature, 29

removal of, 437-41, 450-53

Hindi agitation, 296

Judges (Enquiry) Act, 1968, 58, 76, 292,

House of Commons, England, 28, 40, 43-46, 48-49, 63, 207, 209, 215-16, 226,

judicial interference, 11 Judicial proceedings, immunity from,

Hinduism, 464

255-56, 258, 308, 325, 327-29, 343, 345, 395, 398, 400, 404, 489 elections to, 65 immunity from detention of Members

of, 44 power of expulsion from, 18, 19 ‘powers’ and ‘privileges’ of Members, 18, 49, 486-47

438, 443, 451, 454 129-32

judicial review, 157, 160-61, 228, 340, 342, 402, 405-6, 449 of contempt actions, 28-29, 129 immunity from, 13

judicial system, 3 Judiciary, 52, 209, 345

conflict of power with legislature, 128-40

General Index

K

Kahlon, Nirmal Singh, 363 Kamath, H. V,, 14

Kanade, Justice V. M., 335

Kapadia, Justice S. H., 419-20 Kapur, Justice S. K., 465

publication of proceedings of, 7-9 special jurisdiction of, 344 Legislative Assembly, 3 Legislative Assembly, elections to, 65

role in Money Bills, 121, 124 Legislative Council, initiating money Bills in, 121-23

Karnataka Legislative Assembly, 158-160 Karnataka Legislative (Prevention of Disqualification) Act, 1956, 158 Karnataka Local Authorities (Prohibition of Defection) Act, 1987, 288, 289

role of, 119-20

Lekhi, Mr, 464, 466

Litt, Arjan Singh, 353

Lodha, Justice R. M., 174

Keir, David Lindsay, 343 Kerala High Court, 103, 114, 137, 298,

Lok Sabha, 3, 167, 292-93, 355, 358 dissolution of Ninth, 76, 437 elections to, 234 Ninth, 450-51

Kerala Legislative Assembly, 125, 320, 448,

Lok Tantrik Bahujan Dal, 411, 414

Khalap, Ramakant, 227, 428-29

M

Khan, Haji Mohd., 351

Madhavi Amma, 468

Kasliwal, Justice N. M., 226, 437 Katju, Justice M., 342

448-49, 456 460

Khalid, Justice V., 448

Khanna, Justice, 134 Khanna, Chief Justice H. R., 465

Khare, Ram Swaroop, 485 Khare, Justice V. N., 267

Kharpade, Saroj, 68n Kher, A. G., 388

Kirpal, Chief Justice B. N., 267, 471 Kishore, Justice Kamal, 445 Kridutta, Pandhari Rao, 485-86 Kumar, Arun, 236

Kumar, Nitish, 425

L

507

voting in, 342

Mack, Justice, 274

Madhya Bharat, formulation of, 176 Madhya Bharat High Court, 111

Madhya Bharat Legislative Assembly, 176

Madhya Pradesh High Court, 21, 107, 111

Madhya Pradesh Legislative Assembly, 486-88

Madras High Court, 22, 34, 44, 47, 49, 51, 54, 69, 75, 136, 207, 241, 247, 274, 344, 471-72 Madras Legislative Assembly, 49, 81, 206, 214, 348 Madras Maintenance of Public Order Act,

Laches, ground for, 60

276

Lahoti, Chief Justice R. C., 234 Lal, Bhajan, 351

Mahajan, Justice D. K., 281

Lal, Justice B. M., 435 Lal, Roshan, 351 Legislatures, 52, 308, 345

Maintenance of Public Order Act, 274 Maitra, Pundit Lakshmi Kant, 14

Lal, Harbans, 254-55, 258

conflict of power with Judiciary, 128-40 and contempt and jurisdiction of courts, 75

Mahajan, Justice S. K., 185, 250

Maharashtra Assembly, 335

Majhi, Bhupati Charan, 220

Majumdar, Ansumali, 183

Majumdar, B. B., 220

Majumdar, Chief Justice S. B., 158

Mal, Jagannath, 387-88

508

General Index

right to communicate with Speaker, 54-55 right to participate in proceedings while in detention, 51-54 right to vote and contest elections, 53

Mandal, Suraj, 351 Mandal Panchayat, 289-90 Manohar, Justice Sujata V., 333

Marandi, Simon, 351

Mathew, Justice, 135 Mathur, Jutice G. P., 234, 346 Mathur, Justice S. C., 252

Maurya, Swami, 410, 413-15, 417 May, Eskine, 299, 353 May, Justice, 210

May's Parliamentary Practice, 15, 223, 299, 344, 464 Mayawati, 338, 410, 445-47

Meghwale, Yeshwant Rao, 485-86 Mehta, Chhabildas, 208

Members of Parliament, bribe taking by, 131, 353, 355-56 effect of conviction of, 36-37 freedom from arrest of, 43 freedom of speech of, 71 fundamental rights of, 401 immunity from judicial proceedings, 7, 43, 128 oath taking by, 109-15 punishment and prosecution for misconduct of, 60-61 qualifications and disqualifications of, 83-89 right to attend session while under arrest/ detention, 68-72 right to communicate with Speaker, 54-55 right to participate in proceedings while in detention, 51-54 Members of State Legislatures, effect of conviction of, 36-37 freedom of speech of, 71 immunity from arrest, 46-51 immunity from judicial proceedings, 128 oath taking by, 109-15

prosecution and punishment for misconduct of, 60-61 qualifications and disqualifications of, 83-89 right to attend session while under arrest/ detention, 68-72

Menon, Justice Govinda, 276

Menon, Mishra, Mishra, Mistry, Milltal,

P. K., 468 Anand Bihari, 176 Justice P. S., 238 Homi Dinshaw, 250 Justice R. N., 362, 364

Mohan, Anand, 179 Mohi, S. S., 363 Moily, M. Veerappa, 351 Money Bills, 201

introduction in Parliament, 119-21

judicial review of, 123

Mookerjee, Justice Debabrata, 220-21 Mookerjee, Justice S. K., 179, 359, 481 Mudgal, Justice Mukul, 185 Mudholkar, Justice J. R., 224 Mukherjea, Justice B. K., 250 Mukherjee, Harisadhan, 220

Mukerji, Justice, 386, 398 Mungantiwar, Sibhash, 337 Murugesan, D., 213 Muthupandian, A., 214, 218

N Nadar, M. Kunjukrishnan, 320 Naik, Ravi S., 226, 229, 339, 429, 430, 432-33 Nair, Justice Madhavan, 320 Nambiar, K. Anandan, 274, 294 Nanavati, Justice G. T., 418 Narain, Justice Prakash, 465 Narain, Raj, 386, 388 Nariman, F. S., 227 Narsimham, Chief Justice, R. L., 458 Narula, Chief Justice R. S., 254-56, 258

Natarajan, Justice 165, 348 Natesan, Justice, 206

National Integration Council, 189 National Security Act, 154, 157 National Security Ordinance, 153 Nayak, Brundaban. 199

General Index

Nayudu, Justice Krishnaswami, 276 no-confidence motion, 56

O

oath taking, by Members of legislatures,

260-63 Ordinance of 1993, 453, 472-73 Orissa High Court, 58, 78, 107

P Pai, G. Vasantha, 243

Palayil, Haridasan, 260

Panchal, Justice M., 174 Paripoornan, Justice K. S., 247 Parliament(ary), 3

composition of, 126 freedom of speech in, 4, 128-32

and immunity from judicial proceedings,

129-32 passing of Bills in, 119-25

powers, privileges and immunities of,

4-5, 13-16 powers to summon alleged contemner, 33-35 privileges, 27-30

proceedings of, and courts, 132-38 restrictions on deliberations in, 30

sovereignty of, 401

vacation of seats in, 99-100 vis-a-vis fundamental rights, 38-42 voting in, 16-18

509

Prasad, Rajendra, 187-88 President, 267 ordinance-making power of, 153-54 power to prorogue/dissolve the Parliament, 62 power to promulgate ordinances, 74 powers of, 67

right to address the House, 126-27

Prevention of Corruption Act 1988, 32, 61,

107-8, 351, 354-55, 357 and privileges of Members, 35-36 Prevention of Insults to National Honour Act, 1971, 297, 299, 300 Prevention of Terrorism Act, 2002, 384

Preventive Detention Act, 44, 48, 51-2, 54,

69-70, 183, 275

preventive detention, immunity against,

43-46, 154 Preventive detention laws, detention under, 135, 274, 276 Privilege Committee, 213, 217-18, 281, 335, 337

Privy Council, 489 Proclamation of Queen Victoria, 1858,

325

Progressive Democratic Front (PDF)

government, in Goa, 428 prorogation, and dissolution, 62-63 ‘public servanr’, definition of, 35-36

Punchhi, Chief Justice M. M., 338-39 Punjab and Haryana High Court, 22, 26,

Parumala, Madhu, 330 Pasayat, Justice Arijit, 185, 267, 423, 426 Patil, R. R., 337 Patna High Court, 324 Paulraj, A. M., 165

78, 92, 106~7, 137, 173, 200, 254, 293, 344, 437 financial irregularities of judge of, 450 Punjab State Legislature (Prevention of Disqualification) Act, 1952, 192 Punjab Vidhan Sabha, 173-74, 363

Phukan, Justice S. N., 418 Pillai, Justice Govinda, 457, 468

R

Phillips, Hood, 343

‘political party’, under Tenth Schedule, 98 Poti, Justice Subramonian, 448

power of expulsion, of Members under Constitution, 21-26, 258-59, 404-5 power of suspension, of Members, 26-27 Prasad, Justice B., 238

Radhakrishnan, Justice K. S., 330 Radhakrishnan, Justice S., 335 Rahman, Enayatur, 325 Raj Narain, 68n

Rajan, Justice C. S., 460 Rajagopalarao, B., 477

Rajasthan High Court, 110n

510

General Index

Rajasthan Legislative Assembly, 373 Rajendra Babu, Justice S., 172, 354, 358

Rajya Sabha, 3, 358

elections to, 114, 278 Ramakrishnan, Justice, 206

Ramalingam, O., 348

Raman, V. P.,, 170

Ramaswami, Justice K., 76, 437

Ramaswamii, Justice V, 165, 199, 243, 292-94 removal of, 437

Roy, Bidhan Chandra, 264

Roy, Justice Binod Kumar, 434

‘Roy-Sinha declaration’, 264 Rules of Business and Conduct of Business in Lok Sabha, 48, 78, 435 Rules of Procedure and Conduct of Business,

Lok Sabha/Legislative Assembly, 420, 422,

448, 449, 453, 487, 488 Rules of Procedure and Conduct of Business in Rajya Sabha, 48, 435

Ramaswami, Sarojini, 438 Ramkumar, Justice V., 330

S

Ranga, N. G., 477

Sayeed, Mufti Mohammad, 252-53

Rana, Rajendra Singh, 414 Rangoon High Court, 222 Rao, Justice Ramaprasad, 348

Rao, P. V. Narasimha, 131, 350

no-confidence motion against government of, 35

Rao, V. Rajeshwara, 351 Rathi, Jai Singh, 281

Rathore, Durga Das, 238 Raveendran, Justice R. V., 174, 285, 399, 408, 419-20 Ray, Justice, 56, 135 Ray, Justice A. N., 463 Ray, Justice B. C., 450-51 Ray, Justice G. N., 172, 354, 358 Ray, Justice Jaganmohan, 204

Reddy, Justice B. S., 419-20

Reddy, Gunupati Keshavram, 250

Reddy, Justice K. Jayachandra, 312, 437

Reddy, Justice O. Chinnappa, 367, 437, 439 Reddy, Ramalinga, 350 Representation of the People Act, 1951, 25,

36-37, 51, 69, 84n, 85, 114, 179, 183-84, 190-91, 196, 199, 228, 239, 241, 269, 272, 297, 299, 333, 346-47, 367, 424,

445-46, 472-73, 478, 481

Revanna, H. M., 351 Ridges, B. W., 343

Right to Freedom of Speech, 94, 394 right to livelihood, 25, 216 Rohini, Justice G., 379

Roy, A. K., 153

Sabharwal, Chief Justice Y. K., 278, 285, 399, 400, 423 Sahai, Justice Vishnu, 445 Sahay, Ram, 176-78

Saksena, Shibban Lal, 14 Salve, Narendra Kumar, 464

Sampurnanand, Shri, 386

Sandhawalia, Justice S. $., 254-55

Sapru, Justice, 386, 388-91, 393, 395, 397 Sarkar, Justice A. K., 18, 224, 302, 309,

311 Sarkaria, Justice R. S., 192, 477 Sarkaria Commission, 66

Sastri, Chief Justice Patanjali, 250, 396 Sathasivam, Justice P, 174, 419, 420 Sawant, Justice P B., 226, 437-38

Security Prisoners’ Rules, 54

Seervai, H. M., 305, 309, 435 Sehgal, Bhagwan Dass, 192 Sehgal, Justice G. D., 304

Sen Gupta, Hem Chandra, 74, 264 Sen, Ranen, 183

Seshan, T. N., 471-75

Setalvad, M. C., 305, 308 Seth, Chief Justice H. N., 362, 364

Shah, Justice J. C., 302, 463 Shah, K. T., 188 Shahdeo, Justice, 240

Shankaracharya, of Puri, 463-65

Sharma, Justice Lalit Mohan, 312, 450, 454 Sharma, M. S. M., 323

Sharma, Satish, 351 Shaw, Lord, of Dufermline, 325

General Index

Shekhawat, Bhairon Singh, 373-74

Shinde, Justice, 176—77 Shiromani Akali Dal, split in, 362-64

Sibal, Kapil, 339

Sidhu, Justice J. S., 435

Sidhu, Navjot Singh, 346

Sikri, Justice S. M., 199

Singh, Singh, Singh, Singh, Singh,

Ajit, 172, 351, 354 Amarinder, 173-74, 363, 366 Baljeet, 185 Buta, 351 Chief Justice 281

Singh, Singh, Singh, Singh, Singh, Singh, Singh, Singh, Singh, Singh,

Jagjit, 278 Jaswant, 363 Justice Gurnam, 254-55 Justice Harbans, 281 Justice N. P., 471 Justice R. K., 342 Kalyan, 338 Keshav, 133, 302, 307 Laxman, 374-75, 377-78 Mahachandra Prasad, 234

on resignation of Members of Parliament/ State Legislature, 103-4, 108 Special Reference No. 1 of 2002, 63 Srinivasan, Justice M., 296, 338-40

State Legislatures, 3 State Legislature, composition of, 126 freedom of speech in, 6, 128-32 passing of Bills in, 119-25

powers, privileges and immunity of, 4-5,

13-16, 129, 265-66 power to summon alleged contemner, 33-35

Singh, G. B., 252

vis-a-vis fundamental rights, 38-43

voting in, 116

State Reorganisation Commission, 264

report of, 73, 205 Stephen, Justice, 345, 390

Subba Rao, Justice K. H., 302, 323, 327

Subbaiah, A, K, 158 Subramanium, C., 206 Sukul, Pashupati Nath, 367

Supreme Court, 8, 17, 19, 23-25, 28, 31,

33, 37, 38, 45, 58, 69, 70, 73, 75, 78-79,

Singh, Manjit, 335, 362 Singh, Raghu Raj, 384

80-82, 114, 131, 134-35, 161, 172, 211,

216, 218, 225, 239, 247, 250, 267, 316, 332-33, 338, 347, 354, 364, 396, 401, 403, 414, 458, 488 and enforcement of fundamental rights, 73

Singh, Raghunath, 455

Singh, Uday Kumar, 238-39

Singh, Umrao, 486

Sinha, Chief Justice B. P.,, 224, 323

Sinha, Mahesh Prasad, 324 Sinha, Maheshwar Prasad Narayan, 324 Sinha, Nawal Kishore, 324 Sirsat, Shri, 227 Somasundaram, Justice, 274

Soren, Shibu, 351 Speaker, of Lok Sabha/State Legislature, 137 administering oath of office by, 111

appointment of, 113 authority of, 12

decision under the Tenth Schedule, 78-80

on disqualification of Members, 92-93 immunity to, 77

judicial review of decisions of, 80-81 position of, 77 powers of, 77, 96-97

Stil

as final interpreter of Constitution, 129

power of judicial review of, 129 Supreme Court Act, 1981, England, 229 Supreme Court Rules 1 and 4 of Order 53, India, 229

Suri, Hans Raj, 192

Swamy, Subramanian, 471-72, 475-76

T

Tamil Nadu High Court, 249

see also Madras High Court

Tamil Nadu Assembly (Disqualification on Ground of Defection) Rules, 1986, 247

Tamil Nadu Legislative Assembly, 75-76,

165-66, 471

elections to, 169-170

see also Madras Legislative Assembly

512

General Index

Tamil Nadu Legislative Council, 243-44, 296, 301 Tewatia, Justice D. S., 362, 366 Thakker, Justice C. K., 278, 285, 399, 407 Thanikkachalam, Justice, 213 Thekedar, Surjan Singh, 363 Thimmegowda, M., 350-51 Thomas, Justice M., 338-40

Tilak, Taghukal, 374

Tiwari, Narain Dutt, 386-87, 481 Tohra, Gurucharan Singh, 362 Toor, Joginder Singh, 292

‘Travancore-Cochin Legislative Assembly, 468-69 Tripathi, Ram Narain, 387-88 Tripathi, Sheshmani Nath, 446 Tulzapurkar, Justice V. D., 153

Vajpayee, Atal Behari, 342 Varma, Har Sharan, 252

Veeraswami, Justice, 206 Venkatachaliah, Chief Justice M. N., 230, 232, 312, 428, 450-51

Venkataraman, Justice S., 158 Venkataramaiah, Justice E. S., 95, 367 Venkataswami, Justice K., 169, 333 Venkateswarlu, Pillalamarri, 276 Verma, Justice J. S., 226, 312, 437, 450-51 Verma, Justice P. C., 371 Verma, Justice S., 318 Vidhan Parishad, 3 Vidhan Sabha, 3 Viswanathan, G., 247

W

U United States, executive powers of the President in, 157

Supreme Court in, 157 Unewalia, Justice N. L., 477

Uctar Pradesh Basic Education Act, 1972,

195-96

Uttar Pradesh Congress Committee, 455

Uttar Pradesh Film Development Council, 285 Uttar Pradesh Legislative Assembly, 34,

39, 75, 302, 303-4, 310, 338-39, 367, 388-89, 410, 411, 445, 446-47, 455-56, 481-4 breach of, 250

and contempt case, 133 President's Rule in, 445

Rules of Procedure of, 391-92

Wanchoo, Justice K. N., 294, 302, 323

West Bengal Assembly Procedure Rules, 265

West Bengal Legislative Assembly, 74, 183, 220, 221-22, 224, 264

Writ certiorari, 159 writ of habeas corpus, 250

writ jurisdiction, 82 writ of mandamus, 50, 70, 153, 257, 331, 342, 360 writ petitions, 73-76, 124, 153, 158-59,

214, 227, 335 Writ Petition Special Leave to Appeal, 473 writ of prohibition, 73, 204, 473

Y

Yadav, Mulayam Singh, 410-11

Uttar Pradesh Ordinance, of 1972, 197 Uttaranchal Legislative Assembly, 371-72

Yadav, Ram Lakhan Singh, 351 Yadav, Ram Saran, 351

V

Z

vacation of seats, and disqualification of

Members of legislatures, 23

Zilla Parishad, 289-90 Act, 290

The Indian Constitution provides for division of powers between the legislature, executive and the judiciary for their harmonious and smooth functioning. It also empowers the judiciary to interpret the provisions of the Constitution and the laws passed by the legislature. Both the legislature and the judiciary have evolved, over the years, as mature, dynamic and relatively autonomous institutions in their respective spheres of activity to further strengthen the edifice of democracy. While these two institutions have functioned with restraint and responsibiliry, the legitimate concerns to guard their autonomy have led to occasional differences between them. Since Independence, the courts have been called upon on numerous occasions to resolve such conflicts. A pioneering volume, The Legislature and the Judiciary explains the powers, privileges and immunities of legislatures in India. It also highlights the role of the judiciary in articulating the constitutional position on the legislature's autonomy, and provides a detailed discussion of all the important cases dealt by the high courts and the Supreme Court. In the critical Foreword, eminent jurist Upendra Baxi provides a brief background to the birth of the Indian Constitution. He highlights how the constitutionmakers were profoundly influenced by the powers, privileges and immunities enjoyed by the House of Commons in the United Kingdom. He draws‘our attention to the interesting fact that a majority of cases filed so far are by the legislators themselves, and explains the need for them to have privileges and immunities.

This volume consists of two sections. Section | details the evolution of law through judicial interpretations of provisions relating to Parliament and the State Legislatures. Stating, precisely, the current position of the law, it encapsulates the principles of law laid down by the high courts and the Supreme Court. Section 2 provides a brief summary of judgments. Almost all the significant rulings of the high courts and the Supreme Court relating to Parliament and the State Legislatures have been incorporated in this section. This consolidation of legal information will facilitate a clear understanding of the existing position of the legislature. This volume will also be a valuable resource for legislators, constitutional experts, jurists, and students of political science and law.

Cover design: Mishta Roy Orient BlackSwan

g

1995

www.orientblackswan.com

ISBN 978-81-250-4191-7

(47

AS

Orient BlackSwan

The Legislature and the Judiciary

a"7eaarestourar?