The Facts those led to this case, were that it was alleged against the petitioners that they accepted money for tabling questions/raising issues in Parliament. Committees were appointed to inquire into the allegations and conduct of Hon’ble Members. The allegations were found to be correct and pursuant to the reports submitted by the Committees, the Members were expelled by Parliament. Those Members then challenged the impugned action of expulsion.
Power of Parliament to expel a member
The basic and fundamental question raised by the petitioners in all these petitions was the power of Parliament to expel a member. Other incidental and ancillary questions center round the main question as to authority of a House of Legislature of expulsion from membership.
The Supreme court while considering the question, observed that,
If the sole object or paramount consideration of granting powers, privileges and immunities to the members of Legislature is to enable them to ensure that they perform their functions, exercise their rights and discharge their duties effectively, efficiently and without interference of outside agency or authority, it is difficult to digest that in case of abuse or misuse of such privilege by any member, no action can be taken by the Legislature, the parent body.
The Analysis by the Supreme Court
DISQUALIFICATION AND EXPULSION
The petitioners submitted that the law relating to disqualification and vacation of seats has been laid down in Articles 101 to 104 (and 190-93) read with Schedule X to the Constitution and of the Representation of the People Act, 1951. Those provisions are ‘full and complete’. In other words, they are in the nature of ‘complete Code’ as to disqualification of membership and vacation of seats covering the field in its entirety. No power of expulsion de hors the above provisions exists or is available to any court or authority including Parliament. The action of Parliament, hence, is without jurisdiction and is liable to be set aside.
The court found it unable to uphold this contention. The court said;
Every legislative body Colonial or Supreme possesses power to regulate its proceedings, power of self-protection, self-preservation and maintenance of discipline. It is totally different and distinct from the power to provide the constitution or composition which undoubtedly not possessed by Indian Parliament. But every legislative body has power to regulate its proceedings and observance of discipline by its members. In exercise of that power, it can suspend a member as also expel him, if the circumstances warrant or call for such action. It has nothing to do with disqualification and/or vacation of seat. In fact, a question of expulsion arises when a member is not disqualified, his seat has not become vacant and but for such expulsion, he is entitled to act as a member of Parliament.
PARLIAMENT HAS NO CARTE BLANCHE POWER
The counsel for the petitioners submitted that every power has its limitations and power conferred on Parliament is not an exception to this rule. It has, therefore, no absolute right to take any action or make any order it likes. It was stated that Supreme Court has accepted this principle in several cases by observing that absolute power is possible ‘only in the moon’ [vide Ahmedabad St. Xavier’s College Society & Anr. V. State of Gujarat & Anr., [(1975) 1 SCR 173 : (1974) 1 SCC 717 : AIR 1974 SC 1389].
On this contention of petitioner, the Court held that,
Parliament, like the other organs of the State, is subject to the provisions of the Constitution and is expected, nay, bound to exercise its powers in consonance with the provisions of the Constitution. But I am unable to hold that the power to expel a member is a carte blanche in nature and Parliament has no authority to expel any member. In my view, Parliament can take appropriate action against erring members by imposing appropriate punishments or penalties and expulsion is one of them. I may, however, hasten to add that under our Constitution, every action of every authority is subject to law as nobody is above law.
Parliament is not an exception to this ‘universal’ rule. It is, therefore, open to an aggrieved party to approach Supreme Court raising grievance against the action of Parliament and if the Court is satisfied within the limited parameters of judicial review that the action is unwarranted, unlawful or unconstitutional, it can set aside the action. But it is not because Parliament has no power to expel a member but the action was not found to be in consonance with law.
PROCEDURAL IRREGULARITY: EFFECT
It was then contended that the impugned actions taken by Lok Sabha and Rajya Sabha are illegal and unconstitutional. It was stated that the immunity granted by clause (1) of Article 122 of the Constitution (‘Courts not to inquire into proceedings of Parliament’) has been made expressly limited to ‘irregularity of procedure’ and not to substantive illegality or unconstitutionality. If the action taken or order passed is ex facie illegal, unlawful or unconstitutional, Parliament cannot take shelter under Article 122 and prevent judicial scrutiny thereof.
Neither ad hoc Committees have been contemplated by the Constitution nor such committees have power to inquire into conduct or misconduct of Members of Parliament. All proceedings, therefore, have no legal foundation. They were without jurisdiction or lawful basis and are liable to be ignored altogether. In this connection, the attention of the Court was invited to Constituent Assembly Debates when draft Article 101 (present Article 122) was discussed.
Mr. Kamath suggested an amendment in clause (1) of Article 101 by inserting the words “in any court” after the words “called in question”. Dealing with the amendment and jurisdiction of Courts, Dr. B.R. Ambedkar stated (CAD : Vol.VIII; pp. 199-201); With regard to the amendment of Mr. Kamath, I do not think it necessary, because where can the proceedings of Parliament be questioned in a legal manner except in a Court? Therefore, the only place where the proceedings of Parliament can be questioned in a legal manner and legal sanction obtained is the Court.
On this contention of Petitioner, accepting the side of respondents that committee was formed to inquire into the matter and opportunity was given to them to answer allegations, the Supreme Court had the view that;
Taking into account serious allegations against some of the members of the House, Parliament decided to inquire into correctness or otherwise of the charges by constituting an ‘Inquiry Committee’. The members were asked to offer their explanation and considering the evidence and material on record, the Committee appointed by Parliament decided the matter. It, therefore, cannot be said that the case is covered by exceptional part of clause (1) of Article 122. It cannot be overlooked that Supreme Court is exercising power of ‘judicial review’, which by its nature limited to serious infirmities of law or patent illegalities. It cannot, therefore, enter into sufficiency of material before the authority nor can substitute its own opinion/finding/ decision for the opinion/finding/decision arrived at by such authority.
Hence, even if there is any irregularity in adopting the procedure or in appreciating evidence by the Committee or in approving the decision by Parliament, it squarely falls under the ‘protective umbrella’ of Article 122(1) of the Constitution and Supreme Court cannot interfere with the decision in view of the constitutional protection granted by the said provision. Neither the Committee appointed by Parliament can be said to be a ‘Court’ stricto sensu, nor it is bound by technical rules of evidence or procedure. It is more in the nature of ‘fact-finding’ inquiry. Since the dignity, decorum and credibility of Parliament was at stake, the Committee was appointed which was required to act with a view to restore public faith, confidence and honour in this august body without being inhibited by procedural impediments.
OBSERVANCE OF NATURAL JUSTICE
It was also urged that the Committee had not given sufficient opportunity to the petitioners to defend them and had not complied with the principles of natural justice and fair play. It was submitted that the doctrine of natural justice is not merely a matter of procedure but of substance and any action taken in contravention of natural justice is violative of fundamental rights guaranteed by Articles 14, 19 and 21 of the Constitution.
While answering the contention, the court said,
So far as principle of law is concerned, it is wellsettled and cannot be disputed and is not challenged. In my opinion, however, in the facts of the case, it cannot successfully be contended that there is breach or non- observance of natural justice by the Committee. Reading of the Reports makes it clear that adequate opportunity had been afforded to the petitioners and thereafter the action was taken. Notices were issued to the members, CDs were supplied to them, evidence of witnesses was recorded, defence version was considered and ‘findings and conclusions’ were reached.
So far as the Committee constituted by the Lok Sabha is concerned, it stated;
IV. Findings and Conclusions
32. The Committee viewed the VCDs comprising the relevant video footage aired on the ‘Aaj Tak’ TV Channel on 12 December, 2005, perused the transcripts thereof, considered the written statements submitted by each of the said ten members and their oral evidence and also the oral evidence of Shri Aniruddha Bahal, Kumar Badal and Ms. Sushasini Raj of Cobrapost.Com who conducted the ‘Operation Duryodhan’.
33. The Committee note that the concerned representatives of the Portal Cobrapost.Com namely Shri Aniruddha Bahal, Ms. Suhasini Raj and Shri Kumar Badal approached the members posing as representatives of a fictitious company, through a number of middlemen, some of whom were also working as Private Secretaries/Personal Assistants of the members concerned. They requested the members to raise questions in Lok Sabha and offered them money as a consideration thereof. Money was accepted by the members directly and also through their Private Secretaries.
They deposed on oath that in the money sequences shown on TV Channel Aaj Tak there was no misrepresentation. They have also given to the Committee the raw footage covering the situation before and after the scene in question. While the Aaj Tak clippings have gone through video cleaning and sound enhancement, corresponding thereto are extended versions of unedited raw footage of the tapes to make it apparent that nothing had been misrepresented. Besides this Shri Aniruddha Bahal also submitted the “Original tapes of money acceptance of whatever length the incident it may be”.
There are 20-25 tapes and the total footage pertains to money acceptance. Each tape is a complete tape showing the whole incident. In the course of her evidence Ms. Suhasini Raj has given the details of the money given to the MPs directly as also through the middlemen.
34. As against this evidence are the statements of all the said ten members. The Committee note that all the members have denied the allegations leveled against them. The common strain in their testimony is that the clippings are morphed, out of context and a result of ‘cut and paste’. The clippings of a few minutes, they averred, do not present full picture and they needed full tapes including the preceding and succeeding scenes to prove what they termed as the falsehood thereof. They claimed that the entire exercise was aimed to trap them and lower the prestige of the Parliament.
35. The Committee have given serious consideration to the requests made by the said members for being provided the full footage of video recordings, all the audio tapes and their request for extension of time and being allowed to be represented through their counsels. In this context the Committee would like to bring it on record that all the ten members while deposing before the Committee were asked whether they would like to view the relevant video footage so that they could point out the discrepancies therein if any. All the members, refused to view the relevant video footage. The Committee, therefore, feel that the requests by the members for unedited and entire video footage would only lead to delaying the consideration of the matter and serve no useful purpose.
36. The Committee having given in-depth consideration to the evidence and statements of the representatives of Cobrapost.com and the members, are of the view that the evidence against the members is incriminating. The Committee note that the Cobrapost.com representatives gave their statement on oath and would be aware of the consequences of making any false or incorrect statement. They have also supplied the unedited copies of original video situations where money changed hands. Transcripts of the said videos have also been supplied. Had the Cobrapost.com been reluctant in supplying the original unedited video tapes there could have been scope for some adverse inference about the authenticity of the “money sequences” as telecast by Aaj Tak. But that is not so.
37. The Committee are also of the view that the plea put forth by the said ten members that the video footages are doctored/morphed/edited has no merit. If the members had accepted the offer of the Committee to view the relevant footage and pointed out the interpolated portions in the tape, there would have been justification for allowing their plea for more time for examining the whole tapes. Having seen the unedited raw footage of the Cobrapost.com pertaining to some of the members, the Committee have no valid reason to doubt the authenticity of the video footages.
38. In view of the totality of the facts and circumstances of the case, the Committee are of the opinion that the allegations of accepting money by the said ten members have been established. The Committee further note that it is difficult to escape the conclusion that accepting money had a direct connection with the work in Parliament.
39. The Committee feel that such conduct of the said members was unbecoming of members of Parliament and also unethical. The Committee are, therefore, of the view that their conduct calls for strict action.
40. The Committee feel that stern action also needs to be taken against the middlemen, touts and persons masquerading as Private Secretaries of members since they are primarily responsible for inducing members to indulge in such activities.
41. The Committee note that in the case of misconduct or contempts committed by its members, the House can impose these punishments: admonition, reprimand, withdrawal from the House, suspension from the service of the House, imprisonment, and expulsion from the House. The Committee, according to me, rightly made the following observations.
The Committee accordingly recommended (by majority of 4: 1) expulsion of all the ten members from the membership of Lok Sabha. The recommendation was accepted by the House and consequential notification was issued on December 23, 2005 expelling all the members from Lok Sabha with effect from afternoon of December 23, 2005. So far as Rajya Sabha is concerned, the Committee on Ethics recorded a similar finding and observed that it was convinced that the member had accepted money for tabling questions in Rajya Sabha and the pleas raised by him in defence were not well-founded.
ISSUE: WHETHER PRE-JUDGED
One of the grievances of the petitioners was that the issue had already been pre-judged even before a Committee was appointed by Parliament. In support of the said complaint, the counsel drew the attention of the Court to a statement by the Hon’ble Speaker of Lok Sabha on December 12, 2005; “No body would be spared”.
An attempt was made that the Hon’ble Speaker, even before the constitution of Committee had proclaimed that the petitioners would not be spared. Appointment of Committee, consideration of allegations and recording of findings were, therefore, in the nature of an ’empty formality’ to ‘approve’ the tentative decision taken by the Hon’ble Speaker and for that reason also, the action is liable to be interfered with by Supreme Court.
Rejecting the contention, the court said,
The petitioners are not fair to the Hon’ble Speaker. They have taken out one sentence from the speech of Hon’ble Speaker of Lok Sabha and sought to create an impression as if the matter had already been decided on the day one. It was not so. The entire speech wherein the above sentence appears is part of the Report of the Committee and is on record. It reads thus;
“Hon. Members, certain very serious events have come to my notice as also of many other hon. Members. It will be looked into with all importance it deserves. I have already spoken to and discussed with all Hon. Leaders of different Parties, including the Hon. Leader of the Opposition and all have agreed that the matter is extremely serious if proved to be correct. I shall certainly ask the hon. Members to explain what has happened.
In the meantime, I am making a personal request to all of them ‘please do not attend the Session of the House until the matter is looked into and a decision is taken’ I have no manner of doubt that all sections of the House feel deeply concerned about it. I know that we should rise to the occasion and we should see that such an event does not occur ever in future and if anybody is guilty, he should be punished. Nobody would be spared. We shall certainly respond to it in a manner which behoves as. Thank you very much.”
It is thus clear that what was stated by the Hon’ble Speaker was that “if anybody is guilty, he would be punished. Nobody would be spared”. In other words, an assurance was given by the Hon’ble Speaker to the members of august body that an appropriate action will be taken without considering the position or status of an individual member and if he is found guilty, he will not be spared. The statement, in my judgment, is a responsible one, expected of the Hon’ble Speaker of an august body of the largest democracy. I, therefore, see nothing in the above statement from which it can be concluded that the issue had already been decided even before the Committee was constituted and principles of natural justice were violated.
CASH FOR QUERY: WHETHER MERE MORAL WRONG
It was also urged by the petitioners that taking on its face value, the allegations against the petitioners were that they had accepted money for tabling of questions in Parliament. Nothing had been done within the four walls of the House. At the most, therefore, it was a ‘moral wrong’ but cannot fall within the mischief of ‘legal wrong’ so as to empower the House to take any action. According to the petitioners, ‘moral obligations’ can neither be converted into ‘constitutional obligations’ nor non-observance thereof would violate the scheme of the Constitution. No action, therefore, can be taken even if it is held that the allegations were well-founded.
The court also refused to uphold this contention. The court said,
It is true that Indian Parliament is not a ‘Court’. It cannot try anyone or any case directly, as a court of justice can, but it can certainly take up such cases by invoking its jurisdiction concerning powers and privileges. Dealing with ‘Corruption or impropriety’, Sir Erskine May stated; “The acceptance by a Member of either House of a bribe to influence him in his conduct as a Member, or of any fee, compensation or reward in connection with the promotion of or opposition to any bill, resolution, matter or thing submitted or intended to be submitted to either House, or to a committee, is a contempt. Any person who is found to have offered such a corrupt consideration is also in contempt.
To me, however, there is no doubt and it is well-settled that in such cases, Parliament has power to take up the matter so far as privileges are concerned and it can take an appropriate action in accordance with law. If it feels that the case of ‘Cash for query’ was made out and it adversely affected honesty, integrity and dignity of the House, it is open to the House to attempt to ensure restoration of faith in one of the pillars of democratic polity.
DOCTRINE OF PROPORTIONALITY
It was contended that expulsion of a member of Parliament is a drastic step and even if the House possesses such power, it cannot be lightly restored to. It is against the well established principle of proportionality. According to the petitioners, such a step would do more harm to the constituency than to the member in his personal capacity. It was, therefore, submitted that proper exercise of power for misbehaviour of a member is to suspend him for the rest of the day, or at the most, for the remaining period of the session. If a folly has been committed by some members, the punishment may be awarded to them but it must be commensurate with such act which should not be severe, too harsh or unreasonably excessive, depriving the constituency having its representation in the House.
While agreeing partially with the petitioners’ contention, the court said,
Now, it cannot be gainsaid that expulsion of a member is a grave measure and normally, it should not be taken. I also concede that Palriament could have taken a lenient view as suggested by the learned counsel for the petitioners. But it cannot be accepted as a proposition of law that since such action results in deprivation of constituency having its representation in the House, a member can never be expelled. If representation of the constituency is taken to be the sole consideration, no action can be taken which would result in absence of representation of such constituency in the House. Such interpretation would make statutory provisions (the Representation of the People Act, 1951) as also constitutional scheme (Articles 84, 102, 190, 191, 192, Tenth Schedule, etc.) non-workable, nugatory and otiose.
If a member is disqualified or has been convicted by a competent court, he has to go and at least for the time being, till new member is elected, there is no representation of the constituency in the House but it is inevitable and cannot be helped. There is one more aspect also. Once it is conceded that an action of suspension of a member can be taken (and it was expressly conceded), I fail to understand why in principle, an action of expulsion is impossible or illegal. In a given case, such action may or may not be lawful or called for, but in theory, it is not possible to hold that while the former is permissible, the latter is not.
If it is made referable to representation of the constituency, then as observed in Raj Narain, withdrawal of a member from the House even for a brief period is a serious matter both for the member and his constituency. Important debates and votes may take place during his absence even if the period be brief and he may not be able to present his view-point or that of the group or that of the constituency he represented. It is, however, in the nature of disciplinary or punitive action for a specific parliamentary offence, namely, disorderly behaviour. Moreover, if the House has a right to expel a member, non-representation of the constituency is merely a consequence, nothing more.
“If the constituency goes unrepresented in the Assembly as a result of the act of an elected member inconsistent with the dignity and derogatory of the conduct expected of an elected member, then it is the voters who alone will have to take the blame for electing a member who indulges in conduct which is unbecoming of an elected representative”.
POSSIBILITY OF MISUSE OF POWER BY PARLIAMENT
Finally, it was strenuously urged that Parliament/ State Legislature should not be conceded such a drastic power to expel a member from the House. Considering ground-realities and falling standards in public life, such an absolute power will more be abused than exercised properly.
The court also refused to accept this submission. While refusing to accept the contention, the court said,
Even in England, where Parliament is sovereign and supreme and can do everything but ‘make woman a man and a man a woman’, no member of Parliament has ever been expelled on the ground of ‘ugly face’. And not even a single incident has been placed before Supreme Court to substantiate the extreme argument. Again, it is well-established principle of law that the mere possibility or likelihood of abuse of power does not make the provision ultra vires or bad in law.
There is distinction between existence (or availability) of power and exercise thereof. Legality or otherwise of the power must be decided by considering the nature of power, the extent thereof, the body or authority on whom it has been conferred, the circumstances under which it can be exercised and all other considerations which are relevant and germane to the exercise of such power.
A provision of law cannot be objected only on the ground that it is likely to be misused.
CONCLUDING REMARKS
After refusing to accept all contentions of petitioners in their favour, the court finally made following concluding remarks,
I have already held that the decisions taken, orders made, findings recorded or conclusions arrived at by Parliament/State Legislature are subject to judicial review, albeit on limited grounds and parameters. If, therefore, there is gross abuse of power by Parliament/ State Legislature, Supreme Court will not hesitate in discharging its duty by quashing the order or setting aside unreasonable action.
On my part, I may state that I am an optimist who has trust and faith in both these august units, namely, Legislature and Judiciary. By and large, constitutional functionaries in this country have admirably performed their functions, exercised their powers and discharged their duties effectively, efficiently and sincerely and there is no reason to doubt that in coming years also they would continue to act in a responsible manner expected of them.
I am equally confident that not only all the constituents of the State will keep themselves within the domain of their authority and will not encroach, trespass or overstep the province of other organs but will also act in preserving, protecting and upholding the faith, confidence and trust reposed in them by the Founding Fathers of the Constitution and by the people of this great country by mutual regard, respect and dignity for each other. On the whole, the situation is satisfactory and I see no reason to be disappointed for future.
Reference
Raja Ram Pal v. Speaker Lok Sabha (2007)