February 8, 2023

Judicial Power of Lower House

The Indian parliamentary system derived from British parliamentary system. Like, British Parliament, Indian parliament also have power to regulate proceeding of the house as per its own rules.

Halsbury contains the statement:

“Privilege of the House of Commons in relation to its constitution: In addition to possessing a complete control over the regulation of its own proceedings and the conduct of its members, the House of Commons claims the exclusive right of providing, as it may deem fit, for its own proper constitution.”[1]

House’s Judicial Powers

In Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR 347 Beg J., referring to the historical background relating to the resolution of electoral disputes by the House of Common said:

“I do not think that it is possible to contend, by resorting to some concept of a succession to the powers of the medieval “High Court of Parliament” in England, that a judicial power also devolved upon our Parliament through the constituent Assembly, mentioned in Sec. 8 of the Indian Independence Act of 1947. As already indicated by me, the Constituent assembly was invested with law making and not judicial powers. Whatever judicial power may have been possessed once by English kings sitting in Parliament, constituting the highest Court of the realm in medieval England, have devolved solely on the House of Lords as the final court of appeal in England.

“King in Parliament” had ceased to exercise judicial powers in any other way long before 1950. And, the House of Commons had certainly not exercised a judicial power as a successor to the one-time jurisdiction of the “King in Parliament” with the possible exception of the power to punish for its contempts….”

It is also useful to recall the following observations of Gajendragadkar J., in Special Reference No.1 of 1964 [1965] 1 SCR 413:

“it is well-known that out of a large number of privileges and powers which the House of commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was recognised by the English Courts.

It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English Courts, it would still be upheld under the latter part of clause (3) only on the ground that it was in fact claimed by the House of Commons. In other words, the inquiry which is prescribed by this clause is: is the power in question shown or proved to have subsisted in the House of Commons at the relevant time?”

This question is answered by Beg, J. in Indira Nehru Gandhi’s case:

“I think, at the time our Constitution was framed, the decision of an election dispute had ceased to be a privilege of the House of Commons in England and therefore, under Article 105(3), it could not be a privilege of Parliament in this country.”

Indeed, in dealing with the disqualifications and the resolution of disputes relating to them under Articles 191 and 192 or Article 102 and 103, as the case may be, the Constitution has evinced a clear intention to resolve electoral-disputes by resort to the judicial power of the State.


[1] Halsbury’s Laws of England, 4th Edn. Vol. 34 Pages 603 & 604