Raja Ram Pal v Hon'ble Speaker, Lok Sabha (2007)

It is the modern authority on parliamentary privilege and on the relationship between the House and the courts. Two propositions come from it, and they must be stated together: the House has power to expel a member, and the court has jurisdiction to decide whether a claimed privilege exists at all. It is also the case in which the standard learning on privilege — Pandit Sharma, the U.P. Assembly reference in Keshav Singh, State of Karnataka v Union of India — is gathered up and restated.

A private television channel telecast a programme on 12 December 2005 depicting ten members of the House of the People and one member of the Council of States accepting money, directly or through a middleman, as consideration for raising questions in the House or otherwise espousing causes for those offering the money. There was extensive publicity, and the presiding officers of each House instituted inquiries through separate committees.

A second programme, telecast on 19 December 2005, alleged improper conduct of another Rajya Sabha member in relation to the implementation of the Members of Parliament Local Area Development Scheme. That incident was also referred to a committee.

The inquiry report concluded that the evidence against the ten Lok Sabha members was incriminating; that the plea that the video footage was doctored, morphed or edited had no merit and there was no valid reason to doubt its authenticity; that acceptance of money by the ten members was established; and that the acceptance had a direct connection with the work of Parliament and constituted conduct unbecoming of Members of Parliament, unethical, and calling for strict action. The majority report recorded that in cases of misconduct or contempt by its members the House may impose punishment in the nature of admonition, reprimand, withdrawal from the House, suspension from the service of the House, imprisonment, and expulsion.

The Lok Sabha adopted a resolution expelling the ten members; a notification of expulsion followed. Parallel proceedings in the Rajya Sabha led to the expulsion of members there, one recommendation being adopted on 21 March 2006. The expelled members challenged their expulsions in writ petitions and transferred cases.

The Court framed the issues as follows:

1. Does the Court, within the constitutional scheme, have jurisdiction to decide the content and scope of the powers, privileges and immunities of the Legislatures and their members?
2. If yes, do the powers and privileges under Art. 105 include the power of expulsion of members?
3. If such a power exists, does the Court have jurisdiction to interfere with its exercise, and if so within what limits?

The Court traced the authorities. In the Keshav Singh reference (In re Under Article 143, the U.P. Assembly case) the State Legislature had participated while expressing reservations, insisting that the existence, extent and exercise of the House's powers and privileges were entirely and exclusively within the jurisdiction of the House, and that whatever the Court said would not preclude the House from deciding for itself.

State of Karnataka v Union of India (1977), a Bench of seven, closed the issue. Beg CJ held that arguments giving Ministers answerable to a Legislature the benefit of a separate law exempting them from ordinary liability rested on a confusion about the powers and privileges of the House of Commons referred to in Arts. 105(3) and 194(3). The Constitution vests only legislative power in Parliament and in the State Legislatures. A House cannot try anyone or any case directly, as a court of justice can; it may proceed quasi-judicially in cases of contempt of its authority and take up motions concerning its privileges and immunities, because in doing so it only seeks the removal of obstructions to the due performance of its legislative functions. But if any question of jurisdiction arises as to whether a matter falls there or not, it has to be decided by the ordinary courts in appropriate proceedings.

From that the Court concluded that whenever Parliament or a State Legislature claims a power or privilege under Art. 105(3) or Art. 194(3), it is the court which has the authority and jurisdiction to examine, on a grievance being brought before it, whether the particular power or privilege claimed is one contemplated by those provisions — that is, whether it was a power or privilege vested in the House of Commons of the United Kingdom Parliament at the commencement of the Indian Constitution, so as to become available to Indian legislatures.

The Court also recorded the classical definition: privilege in law is an immunity or exemption from some duty, burden, attendance or liability conferred by special grant in derogation of common right, derived from privilegium, a law specially passed in favour of or against a particular person.

The Court noted that under Art. 105 Parliament is empowered to define its privileges by law in respects other than those specified in the constitutional provisions, and that it had not done so.

Its reasoning on expulsion is short and worth reproducing. Expulsion is always in respect of a member, and a member is part of the House, so his conduct always has a direct bearing on the perception of the House; any legislative body must act through its members, and the connection between the conduct of the members and the perception of the House is strong. Therefore, even if 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. The Court could find no reason why legislatures established in India by the Constitution, including Parliament under Art. 105(3), should be denied the claim to the power of expulsion arising out of the remedial power of contempt.

Because Art. 105(3) supplied the answer, it was not essential to determine whether necessity is an independent source of the power apart from the contempt power.

The two objections rejected

Democratic objection. It was said that expulsion defeats the choice of the constituency. The Court held that the power of expulsion is not contrary to the democratic process; it is rather part of the guarantee of a democratic process. Expulsion is not a decision that bars the member from standing for re-election, nor the constituency from returning him. It therefore does not violate the right of the constituency.

Fundamental rights objection. It was argued that expulsion violates the member's fundamental rights. The Court held that at the threshold stage a blanket ban on the power of expulsion based on Art. 21 cannot be read into the constitutional provisions; whether a particular claim is maintainable is a question for judicial review on the facts of each case. The Court recalled that in Pandit Sharma the argument that privilege under Art. 194(3) is subject to Art. 19(1)(a) had been rejected, because clause (1) of Art. 194 is expressly made subject to the provisions of the Constitution and the remaining clauses are not, indicating that the framers did not intend clauses (2) to (4) to be so subject.

Accordingly the power of expulsion does not come into conflict with any constitutional provision and cannot be negated on that basis.

The Court has jurisdiction to determine the content and scope of legislative privilege; the power to expel a member falls within Art. 105(3) as part of the remedial contempt power; and the exercise of that power is amenable to judicial review, though on limited grounds.

Legislative privilege under Arts. 105(3) and 194(3) includes the power of a House to expel a member for contempt, and the existence and extent of any claimed privilege is a question for the courts, not for the House alone.

• State both halves. An answer that gives only the power to expel, or only the Court's jurisdiction, has taken half the case.
• Distinguish Art. 122 and Art. 212. They protect proceedings from challenge for irregularity of procedure. They do not immunise the claim of a privilege from examination; that is the distinction Raja Ram Pal draws.
• Pair with the Keshav Singh reference, where the House committed a non-member for contempt on an unspeaking warrant and then sought to summon two High Court Judges — the case that first put the House and the courts in direct collision, and produced the three questions on whether the House is the sole judge of contempt committed outside its walls, of the punishment, and whether habeas corpus lies against a general warrant.
• Structure for an essay on privilege: Art. 105(1) freedom of speech; Art. 105(2) the two immunities; Art. 105(3) the undefined residue and the Forty-fourth Amendment's reformulation; Arts. 122 and 212; then Keshav Singh, State of Karnataka and Raja Ram Pal.