# [2007] 1 S.C.R. 317

- **Citation:** [2007] 1 S.C.R. 317
- **Court:** Supreme Court of India
- **Decided:** 2007-01-10
- **Bench:** Y.K. Sabharwal, K.G. BALAKRlSHNAN, C.K. Thakker, R.V. Raveendran, D.K. Jain
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2007-1-s-c-r-317-22825
- **Pages:** 344

## Headnote

Constitution of India, 1950:
A
B
Articles JOI, 102, 105 and 122/Representation of the People Act,
C
1951-Sections 7 and JOA:
Cash for query-Monetary consideration for raising questions in
Parliament-MP Local Area Development Scheme-Improper conduct in
relation to implementation thereof-Espoused by T V. channels-Inquiry
by Committee of MPs-Report tabled in House and the MPs concerned
expelled from the House-Constitutional validity of-Powers, privileges
and immunities-Competence of the Houses of Parliament to expel the
Members from the membership of the House-Whether such power subject
to judicial review-Held: The Houses of Parliament are competent to expel
the Members-Such power subject to judicial review-Scope thereofExplained.
Procedure adopted by the two Houses of Parliament-Does not suffer
from any illegality, irrationality, unconstitutionality, violation of principles
D
E
of natural justice or perversity-Hence not violative of Articles 14, 20 or
F
21.
Lok Sabha Speaker's announcement that the guilty will not be
spared-Whether mala fide and motivated-Held, no, since the Speaker
was only giving vent to his feeling on the subject-The fact that the
Speaker had thereafter constituted an Inquiry Committee with Members
G
also from the opposition would go to show that the resolve at that stage
was to find the truth.
Articles 19(J)(g) and 21-Vis-a-vis-Article 105(3)-Discussed
H
317
318
SUPREME COURT REPORTS
[20011 1 s.c;.R.
A
Powers, privileges and immunities of Members of Parliament-Position
B
in countries like USA, UK., Canada, Australia-Discussed.
Words & Phrases:
'Vacw1cy', 'disqualification', 'expulsion', 'power', 'privilege',
'immunity'-Meaning of
The interpretation of Article 105 of Constitution of India is in issue
.,.
in these matters. The question is whether in exercise of the powers,
privileges and immunities as contained in Article 105, are the Houses of
C
Parliament competent to expel their respective Members from membership
D
E
of the House. If such a power exists, is it subject to judicial review and if
so, the sco'pe of such judicial review.
The aforesaid questions have arisen in the background of the allegation
that the Members of Parliament (MPs) indulged in unethical and corrupt
practices of taking monetary consideration in relation to their functions as
MPs.
The Presiding officers of each House of Parliament instituted inquiries
through separate Committees.
On the Report of.the Inquiry Committee being laid on the table of the
House, a Motion was adopted by Lok Sabha resolving to expel the 10
members from the membership of Lok Sabha, accepting the finding as
contained in the Report of the Committ~e that the conduct of the members
F
was unethical and unbecoming of the Members of Parliament and their
continuance as MPs is untenable. On the same day i.e. 23rd December,
2005, the Lok Sabha Secretariat issued the impugned notification notifying
the expulsion of those MPs with effect from same date.
G
Similarly the Report of the Ethics Committee was adopted by Rajya
Sabha concurring with the recommendation of expulsion and on the same
date i.e. 23rd December, 2005, a notification notifying expulsion of the
Member from membership of Rajya Sabha with immediate effect was
issued.
H
In the Writ Petitionsffransfer Cases, the expelled MPs have challenged
-.,
..
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA
319
the constitutional validity of their respective expulsions.
On behalf of the petitioners, it was inter alia contended that the power
of judicial review is an incident of and flows from the concept that the
fundamental and higher laws are the touchstone of the limits of the powers
of the various organs of State which derive power and authority under the
Constitution of which the judicial wing is the interpreter; 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
A
B
to its existence, which supremacy is protecte

## Text

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RAJA RAM PAL
v.
THE HON'BLE SPEAKER, LOK SABHA & ORS.
JANUARY 10, 2007
[Y.K. SABHARWAL, CJI, K.G. BALAKRlSHNAN, C.K. THAKKER,
R.V. RAVEENDRAN AND D.K. JAIN, JJ.]
Constitution of India, 1950:
A
B
Articles JOI, 102, 105 and 122/Representation of the People Act,
C
1951-Sections 7 and JOA:
Cash for query-Monetary consideration for raising questions in
Parliament-MP Local Area Development Scheme-Improper conduct in
relation to implementation thereof-Espoused by T V. channels-Inquiry
by Committee of MPs-Report tabled in House and the MPs concerned
expelled from the House-Constitutional validity of-Powers, privileges
and immunities-Competence of the Houses of Parliament to expel the
Members from the membership of the House-Whether such power subject
to judicial review-Held: The Houses of Parliament are competent to expel
the Members-Such power subject to judicial review-Scope thereofExplained.
Procedure adopted by the two Houses of Parliament-Does not suffer
from any illegality, irrationality, unconstitutionality, violation of principles
D
E
of natural justice or perversity-Hence not violative of Articles 14, 20 or
F
21.
Lok Sabha Speaker's announcement that the guilty will not be
spared-Whether mala fide and motivated-Held, no, since the Speaker
was only giving vent to his feeling on the subject-The fact that the
Speaker had thereafter constituted an Inquiry Committee with Members
G
also from the opposition would go to show that the resolve at that stage
was to find the truth.
Articles 19(J)(g) and 21-Vis-a-vis-Article 105(3)-Discussed
H
317
318
SUPREME COURT REPORTS
[20011 1 s.c;.R.
A
Powers, privileges and immunities of Members of Parliament-Position
B
in countries like USA, UK., Canada, Australia-Discussed.
Words & Phrases:
'Vacw1cy', 'disqualification', 'expulsion', 'power', 'privilege',
'immunity'-Meaning of
The interpretation of Article 105 of Constitution of India is in issue
.,.
in these matters. The question is whether in exercise of the powers,
privileges and immunities as contained in Article 105, are the Houses of
C
Parliament competent to expel their respective Members from membership
D
E
of the House. If such a power exists, is it subject to judicial review and if
so, the sco'pe of such judicial review.
The aforesaid questions have arisen in the background of the allegation
that the Members of Parliament (MPs) indulged in unethical and corrupt
practices of taking monetary consideration in relation to their functions as
MPs.
The Presiding officers of each House of Parliament instituted inquiries
through separate Committees.
On the Report of.the Inquiry Committee being laid on the table of the
House, a Motion was adopted by Lok Sabha resolving to expel the 10
members from the membership of Lok Sabha, accepting the finding as
contained in the Report of the Committ~e that the conduct of the members
F
was unethical and unbecoming of the Members of Parliament and their
continuance as MPs is untenable. On the same day i.e. 23rd December,
2005, the Lok Sabha Secretariat issued the impugned notification notifying
the expulsion of those MPs with effect from same date.
G
Similarly the Report of the Ethics Committee was adopted by Rajya
Sabha concurring with the recommendation of expulsion and on the same
date i.e. 23rd December, 2005, a notification notifying expulsion of the
Member from membership of Rajya Sabha with immediate effect was
issued.
H
In the Writ Petitionsffransfer Cases, the expelled MPs have challenged
-.,
..
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA
319
the constitutional validity of their respective expulsions.
On behalf of the petitioners, it was inter alia contended that the power
of judicial review is an incident of and flows from the concept that the
fundamental and higher laws are the touchstone of the limits of the powers
of the various organs of State which derive power and authority under the
Constitution of which the judicial wing is the interpreter; 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
A
B
to its existence, which supremacy is protected by the authority of the
independent judicial body that acts as the interpreter thereof through the
power of judicial review to which even the Legislature is amenable and
C
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; that unlike the Parliament of
England, the status of Legislature in India has never been that of a superior
D
court of record and that even privileges of Parliament are subject to limits
which must necessarily ~e ascertainable and, therefore, subject to scrutiny
by the Court, like any other right; 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; the Legislature has
E
no power to expel its member since the Parliament has not enacted any law
which provides for expulsion of a member in a specified circumstance, in
terms of enabling power to legislate on ~he subject as available in Article
105(3) of the Constitution; the expulsions are illegal, arbitrary and
unconstitutional, being violative of the provisions of Articles 83, 84 and 101
F
to 103, 105 and 190 to 193 of the Constitution; there is no provision either
in the Constitution of India or in the Ru!es 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 IDajority in the Legislatures
in future and thus be prone to further abuse; the Constitutional law
governing the democracies the world over, even in other jurisdictions
governed by written Constitutions, would not allow the power of exclusion
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of the elected members unto the legislative chamber.
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B
320
SUPREME COURT REPORTS
[2007] I S.C.R.
The following questions were formulated by the Court:
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?
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3. In the event of such power of expulsion being found, does this Court
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have the jurisdiction to interfere in the exercise of the said power or
privilege conferred on the Parliament and its members or Committees and,
if so, is this jurisdiction circumscribed by certain limits?
Dismissing the Writ Petitions and the Transferred Cases, the Court
HELD: Per Majority (Sabharwal, CJ!, for himself and K.G.
Balakrishnan and D.K. Jain, JJ.)
1. In view of the clear enunciation of law by Constitutional Benches
E
of this court in case after case, there ought not be any doubt left that
whenever Parliament, or for that matter any State legislature, claims any
power 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
F
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 United Kingdom as on the date of commencement of the
G
Constitution of India so as to become available to the Indian legislatures.
[Para 62) [386-G-H, 387-A-B]
Kesavananda Bharati v. State of Kera/a, [1973) 4 SCC 225; Indira
Nehru Gandhi v. Raj Narain, [1975) (Suppl) SCC 1; Minerva Mills Ltd.
v. Union of India, [1980] 3 SCC 625;
Sub-Committee on Judicial
H
Accountability v. Union of India, [1991] 4 SCC 699; I. Manila! Singh v.
y
.,
+ -
\'I
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RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA
321
H. Borobabu Singh (Dr), (1994] Supp (1) SCC 718; Union of India v.
Assn. for Democratic Reforms, [2002] 5 SCC 294; Special Reference No.
I of 2002, In re (Gujarat Assembly Election matter), (2002] 8 SCC 237;
People's Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC
399; Pratap Singh v. State of Jharkhand, [2005) 3 SCC 551; Rameshwar
Prasad (VI) v. Union of India, (2006) 2 SCC 1; Ku/dip Nayar v. Union
of India, (2006] 7 SCC 1; Special Reference No. I of 1964, (1965] 1 SCR
413 (UP Assembly case); MS.M Sharma v. Sri Krishna Sinha, [1959] Supp
(1) SCR 806; MS.M Sharma v. Shree Krishna Sinha, [1961] 1 SCR 96
and State of Karnataka v. Union of India, [1977] 4 SCC 608, relied on.
Bradlaugh v. Gosset, [1884] 12 QBD 271 and Richard William
Prebble v. Television New Zealand Ltd, (1994) (S) WLR 970, referred to.
"Rules of Procedure and Conduct of Business in Lok Sabha"; "Rules
of Procedure and Conduct of Business in ·the Council of States" and "May's
Parliamentary Practice" by Sir Thomas Erskine May, referred to.
2. The historic origin of the doctrine of privileges of the legislature
in England is founded on its judicial functions. The House of Lords has
always claimed itself to be a Court of Record and as such having the
inherent authority and power not only to imprison but also to impose fines
,
' _' ~ t
~
in matters of contempt. But then, its position as a Court of Record does not
inure, according to Lord Kenyon, "when exercising a legislative capacity".
According to May's Parliamentary practice, the House of Commons at one
point of time in the history had also claimed to be a Court of Record, but
this position has never been finally determined.
[Para 82] [393-H, G 394-A-B]
Sir Thomas Erskine May: "May's Parliamentary Practice" and
Rutledge: "Procedure of the House of Commons" [Volume I, page 46],
referred to.
3.1. The medieval concept of Parliament in England primarily as a
court of justice, the 'High Court of Parliament' gave rise to the firm belief
that in order to defend the dignity of Parliament against disrespect and
affronts, there must vest in it a power to commit, without which the
privileges of Parliament would not exist. (Para 83] {394-Dl
A
B
c
D
E
F
G
3.2. In matters concerning import of powers and privileges of the
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322
SUPREME COURT REPORTS
[2007] 1 S.C.R.
A
House of Commons unto the legislature in India, while examining the issue,
albeit from the limited concern of the availability to State legislature under
Article 194(3) of the power of commitment for contempt, this court in the
UP Assembly Case had administered a note of caution that must hold good
even for purposes at hand. [Para 861 [395-D-E]
B
c
D
E
F
G
3.3= In the UP Assembly Case, it was settled by this court that a broad
claim that all the powers enjoyed by the House of Commons at the
commencement of the Constitution of India vest in an Indian legislature
cannot be accepted in its entirety because there are some powers which
cannot obviously be so claimed. (Para 87] (396-B]
Special Reference No. 1 of 1964, (1965) 1 SCR 413 (UP Assembly
case), relied on.
Ashby v. White L.J. (1701-05), 714, referred to.
4. The Constitution thus adopted through Articles 105 and 194, for
the Parliament and the State Legislatures respectively, the same powers,
privileges and immunities as vested at the commencement of the Constitution
in the House of Commons of the Parliament of United Kingdom, until they
were "defined by law". (Para 122] [413-D-E]
Prititosh Roy: "Parliamentary Privilege in India" (1991), Chapter-4,
titled 'Historical Background of Parliamentary Privilege in India (19151950)' p. 53 and Constituent Assembly Debates Volume 8 of 19.5.1949,
page 143-149, 578-584, referred to.
5. Reference to the privileges of the House of Commons was justified
on grounds of self-assertion that free India and its Parliament are as great
as the Parliament of Great Britain. The drafting committee was more
concerned about giving to the Parliament the widest privileges as exercised
by members of Parliament in England, including the power to punish for
contempt of the House. Full fledged provisions listing out the powers and
privileges was not possible as there was not sufficient time or the leisure
to formulate all of them in a compendious form, as had been found by a
Committee constituted by the Speaker on the legislative side. That is why
a wide scope and unfettered discretion was being left for the future
H
Parliament of India to set up the proper machinery for formulating
.
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RAJA RAM PAL v. THE HON'BLE SPEAK ER, LOK SABHA
323
privileges, which could be enlarged or curtailed. The adoption of the powers
A
and privileges of the House of Commons was only as a temporary measure,
following the practice that had been followed in Australia, Canada and in
other Dominions with advantage to secure complete freedom of speech and
also the omnipotence of the legislature in every respect.
!Para 123) 1413-F-H, 414-A-Bl
6. The amendment brought into force in 1979 does not turn the clock
ahead. The powers and privileges of the House of Commons of the Parliament
of the United Kingdom as on the date of commencement of the Constitution
of India were the powers and privileges available to the Parliament before
B
the amendment and that is the package which continues .to be available postC
amendment. Use of a particular power in 1947 would rather make it closer
in terms of time to the crucial date of commencement oflndian Constitution.
Its disuse in later period is of no consequence. !Para 125) (414-F-G)
7. It is incumbent in view of Article 105 (3) to trace the power of
expulsion with reference to the powers, privileges and immunities recognized
as vesting in the House of Commons of Parliament of United Kingdom
as on the date of commencement of the Constitution of India, that is
D
26th January 1950. If such a power or privilege vested in the said
legislature, the question would arise as to whether it could be part of the
inheritance for Indian legislatures in the face of the provisions of its
E
written Constitution. [Para 135] (417-G-H)
8. It is settled that out of entire bouquet of privileges and powers
which the House of Commons claimed at the time of its bitter struggle
for recognition during the 17th through 19th centuries, all have not
F
-\
survived the test of time. Some were given up. Some others faded out by
desuetude. [Para 136) [418-A)
9. The argument of availability of all the powers and privileges has
been rejected in UP Assembly Case with reference to illustrations of some
powers claimed by the House of Commons as mentioned in May's
Parliamentary Practice, but which cannot be claimed by the Indian
legislatures, including the privilege of freedom of access which is exercised
by the House of Commons as a body and through its Speaker "to have at
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all times the right to petition, counsel, or remonstrate with their Sovereign
through their chosen representative imd have a favourable construction
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324
SUPREME COURT REPORTS
[2007] I S.C.R.
A
placed on his words was justly regarded by the Coinmons as fundamental
privilege"; the privilege to pass acts of attainder and impeachments; and
the privilege in regard to its own Constitution which 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 parliamenl; secondly, by the trial of controverted
B
elections; and thirdly, by determining the qualifications of its members in
cases of doubt. [Para 137) [418-E-G]
Special Reference No. I of 1964, (1965) 1 SCR 413 (UP Assembly
case), relied on.
C
Sir Thomas Erskine May : "May's Parliamentary Practice" 16th Edn.
D
pp. 86, 175, referred to.
10.1.
It is necessary to understand the exact import of the terms
'vacancy', 'disqualification' and 'expulsion'. These terms have different
meanings and they do not overlap. Disqualification strikes at the very root
of the candidate's qualification and renders him or her 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 of the legislature,
unworthy of membership. While disqualification operates to prevent a
candidate from re-election, expulsion occurs after the election of the
E
member and there is no bar on re-election. As far as the term 'vacancy' is
concerned, it is a consequence of the fact that a member cannot continue to
hold membership. The reason may be any one of the several possible
reasons which prevent the member from continuing membership, for
example disqualification, death or expulsion. [Paras 142 & 143] (420-B-D]
F
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10.2.
In view of above, it is not possible to accept the submission
that the termination of membership can be effected only in the manner laid
down in Articles 101 and 102. While these articles do speak of qualifications
for and continuation of membership, they operate independently of Article
105(3). Article 105(3) is also a constitutional provision and it demands
equal weight as any other provision, and neither being 'subject to the
provisions of the constitution', it is impossible to accord to one superiority
over the other. It cannot be said the submission that the provisions in
Articles 101 or 102 restrict in any way the scope of Article 194(3). There
is no reason for them to do so. Though disqualification and expulsion both
H
result in the vacancy of a seat, there is no necessity to read one in a way
....
RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA
325
that restricts the scope of the other. The expulsion on being found unfit for
functioning within the House in no way affects the qualifications that a
member must fulfill, and there is no reason for the latter to affect
expulsion. Both of the provisions can operate quite harmoniously. There
is no inconsistency between the two. Nor is there any reason to support the
claim that provisions under Articles 101 and 102 are exh.austive and for
that reason, Article 105(3) be read as not to include the power of expulsion.
Further, death as a cause for vacancy of a seat is also not mentioned in the
relevant provisions. Similarly, it is not necessary for expulsion to be
mentioned, ifthere exists another constitutional provision that provides for
A
B
such a power. It is obvious that upon expulsion, the seat of the member is
rendered vacant and so no specific recognition of this provision is necessary
C
within the provision relating to vacancy. Thus, the power of expulsion
cannot be held to be inconsistent with these provisions.
[Para 144] [420-E-H, 421-A]
10.3. It is not possible to accept the Petitioners' contention that
Articles 101 and 102 are exhaustive with respect to termination of
membership. Therefore, power of expulsion cannot be said to be inconsistent
with these provisions. [Para 146) [421-E]
D
10.4. Disqualification and expulsion are two different concepts
altogether, and recognizing the Parliament's power to expel under
E
Article 105(3) does by no means amount to adding a new ground for
disqualification. [Para 147) [421-GJ
10.5. Article 105(3) itself provides the power to make a law defining
powers and privileges and further the position that all the privileges of the
House of Commons vest in the Parliament until such a law is passed.
F
Article 327 pertains to the constitution of the House insofar as election
matters, etc. are concerned. It does not refer to privileges that the Parliament
enjoys. Thus, the power of expulsion is not negated by any of the above
constitutional or statutory provisions. [Para 148 & 149] [422-B-C]
Yashwant Rao Meghawale v. Madhya Pradesh Legislative Assembly,
AIR (1967) MP 95; Hardwari Lal ILR (1977) 2 P&H 269 (FB); K.
Anbazhagan v. TN Legislative Assembly, AIR (1988) Mad. 275 and Shrikant
v. Vasantrao, [2006] 2 SCC 682, referred to.
Armstrong v. Budd, (1969) 71 SR 386 (NSW), referred to.
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SUPREME COURT REPORTS·
[2007] 1 S.C.R.
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11.1. In the present case, where there is a lawful expulsion, the
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F
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members cannot claim that the provisions relating to salaries and duration
of the House create such rights for the members that would have supremacy
over the power of expulsion of the House. I Para 15411423-Fl
11.2. As ~ar as the provision for the duration of the House is
concerned, the normal duration of a House is to be five years. It cannot be
interpreted to mean that it guarantees to the members a term of five years.
The Respondents have correctly pointed out that a member does not enjoy
the full five-year term under various circumstances; for example-when he
or she is elected mid-term, when the term of the House is cut short by
dissolution, when the member stands disqualified or the seat is rendered
vacant. A correct view in this regard has been taken in K. Anbazhagan, in
line with the view expressed by this Court in K. Anandan Nambiar. If the
provisions mentioned by the petitioners were actually to create rights in
respect of members, then each of the above situations would be liable to be
challenged for their violation. This quite obviously is not what is intended
by the Constitution. Expulsion is onl)'. an additional cause for the shortening
of a term of a member. [Para 156] [424-A-C]
11.3. Further, as far as the provision relating to the salary of the
member is concerned, it is quite absurd to claim that because the
Constitution makes a provision for salaries, the power of the House to expel
is negated since the result would be that the member would no longer be
paid. Salades are obviously dependent upon membership, and the
continuation of membership is an independent matter altogether. The
termination of membership can occur for a variety of reasons and this is
at no point controlled by the fact that salaries are required to be paid to a
member. (Para 157] [424-D-E)
11.4. Thus, the provisions do not negate the power of expulsion of the
House, and there is no inconsistency between the House's power of
expulsion and the said provisions. iPara 158) (424-F)
11.5. While it is true that the right to vote and be represented is
integral to our democratic process, it must be remembered that it is not
an absolute right. There are certain limitations to the right to vote and be
represented. For example, a citizen cannot claim the right to vote and be
represented by a person who is disqualified by law or the right to be
)--.__
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RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA
327
represented by a candidate he votes for, even if he fails to win the election.
A
-~
Similarly, expulsion is another such provision. Expulsion is related to the
conduct of the member that lowers the dignity of the House, which may not
have been necessarily known at the time of election. It is not a capricious
exercise of the House, but an action to protect its dignity before the people
of the country. This is also an integral aspect of our democratic set-up.
B
The power of expulsion is not contrary to a democratic process. It is
rather part of the guarantee ofa democratic process. Further, expulsion is
-
not a decision by a single person. It is a decision taken by the
representatives of the rest of the country. Finally, the power of
expulsion does not bar a member from standing for re-election or the
constituency from electing that member once again. Thus, the power of c
expulsion does not violate the right of the constituency or any other
democratic principles. [Paras 161 and 162} [425-B-FJ
11.6. Article 105(3) is itself a constitutional provision and it is
necessary to construe the provisions in such a way that a conflict with other
provisions is avoided. Where there is a specific constitutional provision as
D
may have the effect of curtailing these fandamenta/ 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
E
the Representation of Peoples Act, 1951. Though this provision would have
the effect of curtailing the rights under Article 19(1 )(g), there is 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
F
~~
in public interest is required. Simply because the Parliament is given the
power to make law on this subject is no reason to say that a law has to be
mandatorily passed, when the Constitution itself provides that all the
powers of the House of Commons vest until such a law is made. Thus,
Article 19(1)(g) cannot prevent the reading of power of expulsion under
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Article 105(3). [Para 165) [426-B-E)
11.7. As far as Article 21 is concerned, it was submitted that the
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'procedure established by law' includes the rules relating to the Privileges
Committee, etc., which were not followed and thus the right was violated.
"
· This does not prevent the reading of the power to expel in Article 105(3).
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It is not possible to say that because a 'procedure established by law' is
required, it will prevent the power of expulsion altogether and that every
act of expulsion will be contrary to the procedure established by law.
Whether such a claim is maintainable upon specific facts of each case is
something that will have to be considered when the question of judicial
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review is taken up. At this stage, however, a blanket ban on the power of
expulsion based on Article 21 cannot be read in the Constitutional provisions.
This is an issue that may have a bearing on the legality of the order. But,
it cannot negate the power of expulsion. (Para 166] (426-F-H]
11.8. The power of expulsion does not come into conflict with any of
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the constitutional provisions and thus cannot be negated on this basis.
(Para 167) (427-A]
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Shrikant v. Vasantrao, 12006] 2 SCC 682 and Ku/dip Nayar v. Union
of India, [2006] 7 SCC 1, relied on.
K. Anbazhagan v. TN Legislative Assembly, AIR (1988) Mad. 275 and
K. Anandan Nambiar v. Chief Secretary, State of Madras, AIR (1966) SC
657, referred to.
12.1. Neither Parliament nor State Legislatures in India can assert
power to provide for or regulate their own constitution in the manner
claimed by the House of Commons in United Kingdom. Having regard to the
elaborate provision made elsewhere in the Constitution, this power cannot
be claimed even, or least of all, through the channel of Articles 105 (3) or
294 (3). Wara 188] (431-G-H]
12.2. Though Maitland also discusses expulsion along with the other
constituent elements of the House's Privilege of determining its own
composition, it is difficult to accept the argument of the Petitioners that
this exposition by Professor Maitland shows that the power of expulsion was
claimed by the House of Commons it being only a part and parcel of its basic
privilege to control its own composition. [Para 217] (441-B-C]
12.3. Wade & Phillips have treated the subject of expulsion from
different angles, not necessarily leading to the conclusion that this power
would always be traceable to the power of self composition alone. Expulsion
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on account of conviction for misdeamonour refers to disciplinary control
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RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA
329
and therefore part of penal jurisdiction which undoubtedly is distinct from
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the power of the House to provide for its own constitution.
[Para 220) (442-C]
12.4. The petitioners seek to point out that expulsion ofa member is
not included in the penal powers of the House of Commons. Default in this
regard by the author does not lead to the conclusion that expulsion was not
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one of the sanctions available against a member to the House as part of its
disciplinary control in as much as other authorities on the subject
demonstrate it to be so. [Para 222) [442-F-G)
12.5. It is clear that E.W. Ridges, though referring to the power of
expulsion under the heading "The Right to Provide for its Due Composition",
does not restrict it as a power sourced from the right to provide for its own
composition but refers at length to cases where the power of expulsion was
used by the House of Commons in cases of criminal conduct, gross
misdemeanour and even in matters of contempt. It is difficult to subscribe
to the inference that the power of expulsion according to Ridges is
traceable only to the privilege of self composition. [Para 224) [442-D-E]
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12.6. It cannot be said that the source of Power of Expulsion in
England was the privilege of the House of Commons to regulate its own
constitution or that the source of the power is single and indivisible and
cannot be traced to some other source like independent or inherent penal
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power. The right to enforce its privileges either by imposition of fine or
by commitment to prison (both of which punishments can be awarded
against the members of the House as well as outsiders) or by expulsion
(possible in case of members only) is not a part of any other privilege but
is by itself a separate and independent power or privilege. To enforce a
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privilege against a member by expelling him for breach of such privilege
is not a way of expressing the power of the House of Commons to constitute
itself. Though expulsion can be, and may have been, resorted to by the
House of Commons with a view to preserve or change its constitution, it
would not exclude or impinge upon its independent privilege to punish a
member for breach of privilege or for contempt by expelling him from the
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House. Expulsion concerns the House itself as the punishment of expulsion
cannot be inflicted on a person who is not a member of the House. As a
necessary and direct consequence, the composition of the House may be
affected by the expulsion of a member. That would not, however, necessarily
mean that the power of expulsion is exercised only with a view, or for the
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purpose of regulating the composition of the House. One of the three ways
of exercising the privilege of the Commons to constitute itself as mentioned
by May (in 20th Editbn) can undoubtedly, in certain circumstances, be
expressed by expelling a member of the House. But this does not mean that
the existence and exercise of the privilege of expelling a member by way
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of punishment for misconduct or contempt of the House stands ruled
out. The power of self composition of the House of Commons is
materially distinct and meant for purposes other than those for which
the House has the competence to resort to expulsion of its members for
acts of high misdemeanour. The existence of the former power on
which expulsion can be ordered by the House of Commons cannot by
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itself exclude or abrogate the independent power of the House to punish
a member by expelling him, a punishment which cannot be inflicte~ on a
non-member. [Paras 233, 234 & 235] [447-C-H, 448-A-B]
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12. 7. Expulsion being regarded as "justly as an example of the
privilege of the House of Commons to regulate its own Constitution" by
May does not mean tilat the power to expel is sclely derived from the
privilege to regulate its own Constitution or that without the privilege of
providing for its own Constitution, the House could not expel a member.
The latter view would be contrary to the established position that the Ho!lse
has a right as part of its privilege to have complete control over
its proceedings including the right to punish a member by expulsion
who by his conduct interferes with the proper conduct of Parliament
business. [Para 236] [447-C-DJ
Anson: 'The Law and Custom of the Constitution' [Fifth edition
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(1922), Volume I, Chapter IV); Para 1019 ofHalsbury's Law of England;
Professor F.W. Maitland: The "Constitutional History of England" (first
edition 1908, reprinted 1941);
Profess0t:s Wade and Phillips:
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"Constitutional Law" (Seventh edition); Professors .Keir and Lawson:
"Cases in Constitutional Law" (fifth edition) and E.W. Ridges:
"Constitutional Law" (Eighth edition, p; 65), referred to.
13.1. In the opinion of the Court in case of UP Assembly, legislatures
in India do enjoy the power to punish for contempt. It is equally clear that
while the fact that the House of Commons enjoyed the power to issue
unspeaking warrants in its capacity of a Court of Record was one concern,
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what actually worried the Court was not the source of the power per se, but
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RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA
331
the 'judicial' nature of power to issue unspeaking warrant insofar as it was
directly in conflict with the scheme of the Constitution whereby citizens
were guaranteed fandamental rights and the power to enforce the fundamental
right is vested in the Courts. It was not the power to punish for contempt
about which the Court had reservations. Rather, the above-quoted passage
shows that such power had been accepted by the Court. The issue decided
concerned the non-reviewability of the warrant issued by the legislature, in
the light of various constitutional provisions. There are many differences
between the case of UP Assembly and the one at hand. The entire
controversy in the former case revolved around the privileges of the House
in relation to the fundamental rights of a citizen, an outsider to the House.
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The decision expressly states that the Court was not dealing with internal
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proceedings, nor laying down law in relation to members of the House.
[Paras 266 & 267) [459-H 460-A-D)
13.2. The ratio of case of UP Assembly, which was decided under
significantly different circumstances, cannot be interpreted to have held
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that all the powers of the House of Commons enjoyed in its capacity as a
Court of Record are unavailable to the Indian parliament, including the
power to punish for contempt. [Para 268) (461-A-B)
13.3. This Court is unable to accept the contention that the power to
punish for contempt is denied to the Indian legislatures as they are not
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Courts of Record. However, it is emphasized that the power to punish for
contempt of the House of Commons is a very broad power, encompassing
a variety of other powers. The case of UP Assembly examined only one
aspect of that power - to issue unspeaking warrants - and held that such
a power is unavailable under our constitution. What this Court presently
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examining in the cases at hand is another aspect of this broad contempt
power - the power to expel a sitting member. While the power to punish
for contempt in its totality has not been struck down by decision in UP
Assembly, this Court does not intend to rule on the validity of the broad
power to punish for contempt as a whole. The different elements of this
broad contempt power will have to be decided on an independent scrutiny
of validity in appropriate case. This Court would restrict to the power to
expel a member for contempt committed by him. Having found, however, that
there is no bar on reading the power to punish for contempt in Article
105(3), it is possible to source the power of expulsion through the same
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provision. [Para 272) [463-B-E)
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13.4. There is no contest whatsoever to the plea that the House of
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Commons did in fact enjoy the power of expulsion at the commencement of
the Constitution. A number of instances have been quoted even by the
petitioners, including those occurring around the time of the commencement
of the Constitution. To mention some of them, notice may be taken of case
of member named Horatio Bottomley, expelled in 1922 after he was
convicted for fraudulent conversion of property; case of Gary Allighan,
expelled in 1947, for gross contempt of House after publication of an article
accusing members of the House of insobriety and taking fees or bribe for
information; and, the case of Peter Baker, expelled in 1954 from the House
after being convicted and sentenced for forgery. Although the examples of
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expulsion in this century by the House of Commons are few, the relevant
time for our purposes is the date of the commencement of the Constitution.
The last two cases occurring in 1947 and 1954 clearly establish that the
power to expel was in fact a privilege of the House of Commons at the
commencement of our Constitution. Thus, from this perspective, the power
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of expulsion can be read within Article 105(3). As already held this power
is not inconsistent with other provisions of the Constitution.
[Paras 273 & 274) [463-F-H, 464-A-B]
Special Reference No. 1 of 1964, [1965) 1 SCR 413 (UP Assembly
case; MS.M Sharma v. Sri Krishna Sinha, [1959] Supp 1 SCR 806;
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MS.M Sharma v. Shree Krishna Sinha, [1961) 1 SCR 96; Yeshwant Rao
v. MP Legislative Assembly AIR (1967) MP 95; Hardwari Lal v. Election
Commission of India Etc. ILR (1977) P&H 269; K. Anbazhagan v. Tamil
Nadu Legislative Assembly, AIR (1988) Mad 275 and State of Karnataka
v. Union of India, [1977) 4 SCC 608, referred to.
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Dill v. Murphy, 1864 (15) ER 784; Fielding v. Thomas, [1896) AC
600; Kei/ley v. Carson, [1842) 4 Moo. PC 63; Fenton v. Hampton (1858)
11 MOO PCC 347; Doyle v. Falconer, [1865-67) LR 1 PC 328; Barton
v. Taylor, {1886) 11 App Cases 197 and Marshallv. Gordon, 243 U.S. 521,
541 [1917), referred to.
14. It is axiomatic to state that expulsion is always in respect of a
member. At the same time, it needs to be borne in mind that a member is part
of the House due to which his or her conduct always has a direct bearing upon
the perception of the House. Any legislative body must act through its
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members and the connection between the conduct of the members and the
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RAJA RAM PAL v. THE HON'BLE SPEAKER, LOK SABHA
333
perception of the House is strong. It is, therefore, concluded that even if the
Parliament had only the limited remedial power to punish for contempt, the
power to expel would be well within the limits of such remedial contempt
power. There is no reason as to why legislatures established in India by the
Constitution, including the Parliament under Article 105 (3), should be
denied the claim to the power of expulsion arising out of remedial power of
contempt. [Paras 290 and 291] [469-H, 470-A-B]
Hartnett v. Crick, [1908] AC 470, referred to.
15. In view of the interpretation of Article 105(3) of the Constitution,
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it is not essential to determine the question whether 'necessity' as an
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independent source of power, apart from the power of the House to punish
for contempt, by expulsion of a member, is available or not.
[Para 293] [470-E]
16. The approach adopted in Australia is entirely for the Parliament
to consider and examine, if so advised. In so far as this Court is concerned,
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since India does not have a law that codifies the privileges of the Parliament,
nothing turns on the basis of the Australian legislation.
[Para 297) [472-A]
Odger's "Australian Senate Practice", referred to.
17. The opinion expressed by the Members of Parliament in May
1981, or for that matter in December 1978, as indeed in June 1951
merely represent their respective understanding of the law of privileges.
These views are not law on the subject by the Parliament in exercise of
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its enabling power under the second part of Article 105(3).