R.S. Narula, C.J.@mdashThe questions which call for decision in this writ petition for annulment of the resolution of expulsion of the Petitioner, from the Haryana Vidhan Sabha relate to the scope, interpretation, construction and application of Article 194 of the Constitution which deals with the powers, privileges and immunities of the Indian State Legislatures and their members. A brief survey of the facts leading to the filing of the petition appear to be necessary in order to fully appreciate the questions of law on which lengthy arguments have teen addressed by both sides.
Hardwari Lal (hereinafter called the Petitioner) was an elected member of the Haryana Vidhan Sabha (hereinafter referred to as the Vidhan Sabha). On November 12, 1973, two members of the Vidhan Sabha gave to the Secretary, Vidhan Sabha, notice Annexure P-5 of the alleged breach of privilege by the Petitioner having published the booklets entitled "A Chief Minister Runs Amuck --Indian Democracy in Danger" and "Emergence of Rough and corrupt Politics in India--Anatomy of a Chief Minister", which were stated to he available in the market. The notice stated inter alia:
The contents and perusal of these booklets will reveal that derogatory remarks have been made against the Hon''ble Speaker, House and Members of Haryana Vidhan Sabha, thereby lowering the dignity of the Hon''ble Speaker, House and Members of Haryana Vidhan Sabha in the eyes of public.
2. Following extracts from the above-mentioned booklets were then quoted in the privilege motion:
1. ''The Speaker is the authority to allot flats. But a person whom Mr. Bansi Lal does not like can expect no accommodation from the Speaker in the matter. (Page 37 of the booklet ''A Chief Minister Runs Amuck'').
2. ''The present Speaker is an old and close associate of Mr. Bansi Lal. He has been given a better limousine than had been given to his predecessor and he is often out on tour of the State as his predecessor used to be. It appears that the marriage between him and Mr. Bansi Lal. would last. He is being gradually made a part of the actual power-structure of the State.
(Page 40 of the booklet ''A Chief Minister Runs Amuck'').
3. ''A member of the House was alleged to have said at a public meeting that the new Speaker was merely a tool of the Chief Minister. This speech annoyed Mr. Bansi Lal as being calculated to damage the position of the Speaker. But even if the allegation was true it would be an open question whether the erring Member of Mr. Bansi Lal himself has damaged the position of the new Speaker and debased the Speaker''s office itself. Mr. Bansi Lal cannot put up with the State Assembly and with the Speaker of the Assembly unless they are thoroughly tamed things.
(Page 70 of the booklet "Emergence of Rough and Corrupt Politics in India).
Derogatory remarks against the Assembly and its Members.
4. ''But who can prevent Mr. Bansi Lal from making it an
innocuous and even subservient? If the... members are all right, the Vidhan Sabha can really be a convenient cover for everything that Mr. Bansi Lal may like to do with public money and Government Power''.
(Page 36 of the booklet ''A Chief Minister Runs Amuck'').
5. Chaudhri Rizak Ram, the leader of the Congress (O) Legislature Party which is the largest group in the Opposition in the Vidhan Sabha, is on Mr. Bansi Lal''s pay roll.
(Page 40 of the booklet ''A Chief Minister Runs Amuck'').
6. Mr. Bansi Lal has used all the corrupt and rough methods to mould the State Assembly.
(Page 49 of the booklet ''Emergence of Rough and Corrupt Politics in India'').
7. It was the first State where the State Assembly was made into his personal handmaid by the Chief Minister.
(Page 6 of the booklet ''Emergence of Rough and Corrupt Politics in India'')
8. But how long could the Commission have held out after Mr. Bansi Lal had subjugated the State Assembly.
(Page 73 of the booklet ''Emergence of Rough and Corrupt Polics in India'').
9. ''He thought of ways to put the Members in his pocket through corruption and appeasement. Exhibiting a large-heartedness of rare order, he invited them to share the spoils. Lucrative jobs were created for the Members who defected, at his instance, from the opposition. Improvement Trusts were created here and there and the defectors as also some of the restive Members of his own party were given good salaries as Chairmen of those Trusts. There were then Boards and Corporations. One of the defectors was appointed Chairman of State Agricultural Marketing Board, another the Chairman of Agricultural Industrial Corporation, still another as Chairman of Minor Irrigation Corporation and so on''. (Page 54 of the booklet ''Emergence of Rough and Corrupt Politics in India'').
10. ''Mr. Bansi Lal, then got another six or seven independent members, whom he had at his beck and call to enter Progressive Independent Group of six MLAs on the condition that the group would pursue a policy of constructive opposition. Within a few minutes of the occurrence of these developments he got the Speaker of the Assembly to recognise the Progressive Independent Group as the official Opposition and its leader as official Leader of Opposition in the Assembly although the Assembly was not in session. To throw dust into the eyes of people, Mr. Rizak Ram remained critical of this new development as long as estrangement between the six members who had been expelled from the Congress (O) at his instance, and the Congress (O) Party did not become complete. As soon as he felt that the estrangement for which he had been working was complete, he became an open supporter of Mr. Bansi Lal, though he continued to remain the Leader of Congress (O) Group. Mr. Bansi Lal appointed him as the Chairman of the Resources Committee which he specially created to accommodate him and gave him most of the facilities which go with the office of a Cabinet Minister. To Congress (O) and its Members in the Assembly Mr. Rizak Ram gave the assurance that he was their own man and had accepted the Chairmanship of the Resources Committee only to secure secrets which they could use to bring down Mr. Bansi Lal''.
As Chairman of the Resources Committee, Mr. Rizak Ram recommended additional taxation at Mr. Bansi Lal''s suggestion at which the Congress (O) group became restive. The group expelled ''Mr. Rizak Ram and his one solitary associate and thus reduced its own strength to four. Mr. Rizak Ram had done his part of the job. Mr. Bansi Lal, on his part, had already taken steps to elevate Mr. Rizak Ram to something higher. The Planning Commission had advised the States to set up Planning Boards under permanent Deputy Chairman. Mr. Bansi Lal, decided to give this job to Mr. Rizak Ram. Without disclosing his intention he got the State Assembly to pass a Bill that the office of the Deputy Chairman of the proposed Board would not be an office of profit. Some time after the passage of the Bill, Mr. Rizak Ram was appointed the Deputy Chairman of the State Planning Board. This was adequate compensation for the help he had given to Mr. Bansi Lal in weakening the Congress (O) Party in the Assembly. Mr. Rizak Ram now enjoys the status and all the privileges of a Cabinet Minister. But the question of morals troubles neither him nor Mr. Bansi Lal.
The new Opposition Party of Progressive Independents into which Mr. Bansi Lal had inducted his purchased men, has also been liquidated.... And within a matter of days Mr. Bansi Lal made his men in the Independent Group (the spare tyres kept for use in the emergenices) disown the group and its leader''.
(Pages 83 and 85 of the booklet ''Emergence of Rough and Corrupt Politics in India'').
Speaker an accomplice:
11. Large sums of money are being earned by MLAs close to Mr. Bansi Lal for securing appointments for various persons. MLA''s namely Parsanni Devi from Karnal district reported to have been having an average assured income of Rs. 4,000 each per mensem during last two years'', (pages 64-65 of the booklet ''Emergence of Rough and Corrupt Politics in India'').
3. It was alleged in the notice that the above-quoted derogatory-words and paragraphs in the booklets in question had lowered the dignity of the Hon''ble Speaker, House and the Members of the Vidhan Sabha and also cast aspersions on them. It was stated that publishing of those documents had resulted in the image of the Hon''ble the Speaker and of the Members of the House having "gone down very low in the eyes of the public". It was then added in the notice Annexure P-5 as under:
Publishing such derogatory remarks in the above-said booklets and casting aspersions on them definitely puts an hindrance in the day-to-day discharge of their duties, and also it is a breach of privilege and contempt of the Vidhan Sabha, Hon''ble Speaker and the Members. These libellous reflections upon members have brought into disrepute the august body, i.e., the Vidhan Sabha to which they belong. Having published these two booklets containing the aforesaid libels, Shri Hardwari Lal, MLA has committed violation of rights and privileges of Haryana Vidhan Sabha which causes the obstruction in the performance of its functions by diminishing the respect of the Hon''ble Members due to them. This specific matter is of recent occurrence and requires immediate intervention by the Hon''ble Speaker. As a matter of proof, we are enclosing a copy of the booklets for your perusal and necessary action. Therefore, Sir, we request you that this matter may kindly be referred to the Privileges Committee at once for examination and report.
After some discussion in the Vidhan Sabha, the House referred the -above-mentioned question of privilege to the Committee of Privileges for examination and report. Copies of the booklets were supplied to all the members of the Committee and also to the Petitioner. At his request the Committee examined the Petitioner on November 22, 1973. The written interim reply filed by the Petitioner before the Committee was circulated amongst its members. In that reply the Petitioner raised objections against the admission of the privilege motion as well as against its acceptance, and also disputed having committed breach of any privilege or having committed any contempt. When the following question was put to the Petitioner by the Chairman of the Privileges Committee during the course of the recording of Petitioner''s own statement:
Mr. Hardwari Lal, I put before you two booklets named (1) a Chief Minister Runs Amuck, printed by the Printing Promoters,, 3338, 21-D, Chandigarh; and (2) Emergence of Rough and Corrupt Politics in India, printed at New Bharat Press, Karol Bagh, New Delhi. Do you admit that these booklets have been written by you and printed and circulated at your instance?
he replied in the affirmative by saying--"Certainly Yes".
The Petitioner also admitted before the Committee that the two booklets in question had been widely circulated and that the Petitioner himself had sent complimentary copies of the booklets to the Vidhan Sabha library. He, however, prayed for more time to submit his detailed reply and his request was allowed by the Committee. The two'' movers) of the motion were also examined and they reiterated the allegations made by them in the privilege motion. In his final written statement before the Privileges Committee, the Petitioner took up a large number of pleas.
He pleaded inter alia that whatever he had written in the two booklets was true and correct, that the privilege motion had been admitted contrary to the rules of procedure and conduct of business of the Vidhan Sabha, that the British House of Commons recognises the right of a citizen to criticise it outside the House even in the staunchest terms, that the Petitioner had the right to criticise the conduct of the Leader of the House and the Speaker "as they had been abusing the process of the House and their executive authority as the Chief Minister and the Speaker", that as a member of the House the Petitioner had the right to attack both inside and outside the House the modus operandi of the Leader of the Opposition, that in the passages to which exception had been taken by the movers of the motion, the Petitioner in his capacity as a member of the House had stated nothing which would constitute reflections on the institution of the Vidhan Sabha.
4. After hearing the movers of the motion and Petitioner, and considering the entire material brought before it, the Committee submitted its report, dated January 7, 1975, wherein the objections against the admission and acceptance of the motion and its origin were disposed of in the following words:
The Committee cannot go into the propriety or impropriety of the Speaker''s admission of the motion or the acceptance of the motion by the House. It is an established principle that it is for the Speaker to decide whether there is a prima facie case of breach of privilege and after having considered the motion from that point of view, if the Speaker admits the motion and allows it to be moved in the House and the House takes a decision to refer the same to the Privileges Committee for its consideration, the matter ends there and the Privileges Committee has no jurisdiction to examine and decide as to whether the Speaker should have admitted the motion and allowed the moving of the same in the House and as to whether the acceptance of it by the House was proper or not. This Committee also does not have any power to examine whether the motion was admitted against the rules and hence this objection is overruled.
The Committee also cannot go into the question as to why and how the Privilege Motion originated, rather it takes a strong objection to the words, "the privilege motion in question had its origin in the personal animosity of Messrs Bansi Lal and Banarsi Das Gupta and in their proveable mala fides" used in para 5 of the reply by Chaudhri Hardwari Lal, dated 18th December, 1973. The imputation of mala fides on the part of the Speaker in admitting the Privilege Motion would by itself constitute a breach of privilege as it casts great reflections on the impartiality of the Speaker in the discharge of his duties as such.
5. After recording the above findings the Privileges Committee gave its final unanimous report in the following terms:
The Committee is not concerned with the purpose of the circumstances which led to the publication and circulation of the two booklets referred to in the privilege motion. The Committee admits that every citizen has a right to criticise but nevertheless the Committee is of the opinion that writing and the criticism should not interfere with due and proper procedure of the House and should not show disregard and disrespect for parliamentary decorum, practice and procedure. It should not also seek to lower in the estimation of the public the authority and dignity of the House and its Speaker. (Refer to the case of breach of privilege moved in Bombay Vidhan Sabha against Marathi newspaper "Prabhat" in 1957).
The Committee feels that the booklets have not been written with the laudable purpose which is alleged in the written statement, but with the ulterior motive to malign and blackmail the Members and the Speaker of the House. The Committee, however, feel that he could have criticised the conduct of the Chair generally without casting or suggesting any reflection on impartiality of the Chair. Writings reflecting on the impartiality and the conduct of the Chair is (are) not justified. (Refer to the motion of privilege moved in Assam Vidhan Sabha in 1954 in the case of Hareshwar Goswami, Leader of the Opposition).
Shri Hardwari Lal has laid great stress that whatever he has stated is based on facts and truthfulness. The Committee has considered this aspect of the question in depth and find it hard to accept his assertions.
At page 140 of Report from the Select Committee of Parliamentary Privileges (1967-House of Commons), it is said as under:
There is no reason to suppose that the truth of libel would have been a defence in proceeding for contempt of Parliament in the 17th and 18th Century, any more than it would have been a defence at common law in criminal prosecutions for libel. On the contrary, the fact that it was the practice in such cases for the House to decide whether the writing complained of was reliable without hearing the party/parties or any of them who had published libel proves that the truth of the libel was not a defence. It is, therefore, for those who maintain that proof of the truth of the libel is a defence in such proceeding to show that the practice has changed and this, I submit, they cannot do. The ''precedent goes nowhere near proving any such contention.
6. Chaudhry Hardwari Lal has tried to scandalise the whole House and the Committee is unable to find any case in which a party accused of scandalising the Speaker, the House and its Members sought to prove that his allegations were true.
7. It has been invariably held that the truth of allegations is no defence in proceeding for contempt and that the defender cannot lead evidence to establish its truth. It has rather been held further that every attempt to justify the contempt constiutes a new offence of contempt. Reference may be made to Surrender Nath Banerjee''s case 1883 ILC Cal Series 10 109, and Ram Mohan Lal Aggarwal 1935 All Series 411 and also the case of M.G. Kadir v. Kesri Nairain Jaitly and Ors. A.I.R. 1945 All Series 67.
8. Shri L.A. Abrahm, C.B.C.B.E; in his memorandum submitted before the Select Committee on Parliamentary Privileges stated "In my submission, the precedents afford little support for the contention that where a person is charged with contempt of the House by publishing libel on, or speaking words defamatory of, a member or members, named or unnamed, his or their capacity as such a member/ members proof of the truth of writing or words will provide a defence".
9. It would not be out of place to mention here that Defendant in the prosecution for libel was never allowed in common law to allege the truth by way of justification (refer to Halsbury Laws of England, 3rd Edition, Volume 25, page 4).
10. The Committee feel that it does not lie in the mouth of Shri Hardwari Lal to assert that since the matter written is based on truth, so no breach of privilege is involved.
11. Before examining whether the writings in question constitute breach of privilege or not, it would be proper to state succinctly the law on the point.
12. The Committee of Privileges of the House of Commons (U.K.) in the well-known Alligham case stated "it has long been recognised that the publication of imputations reflecting on the dignity of the House or any Member in his capacity as such is punishable as a contempt of the Parliament. Reflections upon Members, however, even where individuals are not named may be so framed as to bring into disrepute the body to which they belong and as such reflections, therefore, have been treated as equivalent to reflections on the House itself.
13. It is a breach of privilege and contempt of the House to make speeches to print or publish any book of libels reflecting upon the character or proceedings of the House or its Committees, or any Member thereof.
14. Reflections on the character and impartiality of the Speaker in the discharge of his duties constitute breach of privilege. (See case of Amrit Bazar Patrika and Indian News Chronicle).
15. Shri Madhu Limaye was held to have committed a breach of privilege and contempt of the House by attributing mala fides to the Speaker, Lok Sabha, in the discharge of his duties in the House. It may be of interest to note that Shri Madhu Limaye was a Member of the Lok Sabha.
16. The Committee is of the opinion that paragraphs Nos. 1, 2 and 3 under the heading ''Derogatory Remarks against the Hon. Speaker'' in the Privilege Motion quoted from the booklets published by Chaudhri Hardwari Lal, impute partiality on the part of the Speaker in the discharge of his duties as such, and also convey the impression that the Speaker does not act independently and his actions are motivated by considerations other than justice and fair play.
17. In paragraph 3, Chaudhri Hardwari Lal has repeated the words ''A Member of the House was alleged to have said at a public meeting that the new Speaker was merely a tool of the Chief Minister''. The words underlined have already been the subject of a privilege motion against Shri Ram Lal and this Committee,--vide its Report submitted to the House on 26th September, 1973, held that the words constituted breach of privilege and contempt of the House, and, therefore, recommended that Shri Ram Lal be reprimanded.
18. The words which are printed at page 36 of the booklet ''A Minister Runs Amuck'' clearly cast reflections on the conduct of the Members of the House in the discharge of their duties as Members while taking part in the proceedings of the House. In all, paragraph 4 also conveys the impression that the Members do not act freely according to their conscience and are tools in some one else''s hands.
19. Paragraph 5, the words of which are taken from page 40 of the booklet ''A Chief Minister Runs Amuck'' is highly derogatory of the then Leader of Opposition (Chaudhri -Rizak Ram) and accuse him of accepting bribe and consequently acting in a particular manner as leader of Opposition of the august House. There would not be a more serious offence than casting derogatory and damaging reflections on the person of the Leader of the Opposition.
20. The paragraphs 6, 7, 8 and 9 quoted from pages 49, 61 and 73 and 54 of the booklet ''Emergence of Rough and Corrupt Politics in India'' again cast disgraceful reflections on the working of the House as a whole.
21. The wording of the paragraphs 9,10 and 11 taken from pages 54, 83 and 85 and 65 of the booklet ''Emergence of Rough and Corrupt Politics in India'' imputes motives on the part of Members of this House in the discharge of their duties and functions as Members of this House. The Committee is of the opinion that the use of such words is highly deprecable.
22. From the reading of these paragraphs, the impression which is created in the minds of the public at large would be that the Members of this august House accept bribe to act in particular manner in the discharge of their duties as Members. Such imputations are highly libellous and constitute breach of privilege of the Members.
After recording all the above findings and making the above-quoted report, the Committee dealt with the question of punishment to be awarded to the Petitioner for the breach of privilege for which he had been held to be responsible in the following words:
The Committee might have also taken a lenient view of the whole matter if the Member complained against was remorseful and repentant of his action; but after going through the citations of the privilege motion and lengthy reply submitted to the Committee by him, the Committee is pi the view that motive of Chaudhry Hardwari Lal in publishing two booklets is to blackmail and coerce the Speaker and Members of this august House. The writings cannot be stated to be a fair comment on the working of the Vidhan Sabha. Chaudhry Hardwari Lal cannot be said to be unaware of the seriousness of the consequences of what he has written in his booklets. Since the matter is of serious nature and the writings are deliberately libellous and derogatory and the honour and reputation of the whole House is involved and the writings have brought into disrepute the high office of the Speaker and cast uncalled for reflections and preclude the Members from acting freely and independently in the discharge of their duties as Members of this august House, the Committee is of the opinion that Hardwari Lal would deserve exemplary punishment.
The Committee recommends to the House that Shri Hardwari Lal be expelled from the House and his seat be declared vacant, as in the opinion of the Committee he is guilty of breach of privilege and contempt of the House, the Members and the Speaker.
23. The report of the Privileges Committee came up for discussion before the Vidhan Sabha on January 8, 1975. After discussion, the House unanimously adopted the motion. Consequent on the adoption of the motion expelling the Petitioner from the House, the Petitioner was declared by notification Annexure P-7 of that date to have ceased to be a member of the Vidhan Sabha with effect from that day (forenoon of January 8, 1975). In the endorsement dated January 8, 1975, under which a copy of the notification Annexure P. 7 was forwarded to the Secretary, Election Commission of India, he was "requested to take steps to fill the vacancy of Shri Hardwari Lal from 45--Bahadurgarh Assembly Constituency, caused vacant."
24. On March 17, 1975, the Petitioner approached this Court by the present writ petition praying for the issuance of an appropriate writ, direction or order to the effect that:
(a) the decision of the Vidhan Sabha, dated January 8, 1975, expelling the Petitioner from the House and subsequent notification of the same date declaring the Petitioner''s seat as vacant be struck down and held void, mala fide, illegal unconstitutional and inoperative;
(b) the Election Commission of India (Respondent No. 1 to the writ petition) be directed not to proceed to fill the vacancy supposed to have resulted from the decision of the Petitioner''s expulsion from the Vidhan Sabha and to cancel the proceedings which might already have been set in motion in that regard;
(c) such other relief be granted to him as may be considered just and appropriate in the circumstances of the case; and
(d.) the costs of the petition be awarded to him as his expulsion is groundless and mala fide.
25. Besides the Election Commission of India (Respondent No. (1) the eighteen other Respondents arrayed in the petition are:
(ii) Vidhan Sabha through the Speaker; (iii) the Secretary of the Vidhan Sabha;
(iv) Shri Bansi Lal, the then Chief Minister of Haryana; (v) Shri B.D. Gupta, ex-Speaker of the Vidhan Sabha, who was at that time the Irrigation and Power Minister of Haryana;
(vi) Tikka Jagjit Singh, M.L.A. (mover No. 1 of the privilege motion);
(vii) Shri G.C. Joshi, M.L.A. (the second mover of the privilege motion);
(viii to xviii) Shri Gulab Singh and other M.L.As., who were, members of the Privileges Committee; and
(xix) the State of Haryana.
The petition has been divided into ten parts. The first part comprising paragraphs 1 to 19 contains the alleged back ground and facts of the case starting with the Petitioner''s career since 1962, his election to the Vidhan Sabha, a tirade against the Speaker and the Chief Minister, and ending with his writing, printing and publishing the booklet Annexure P-l, dated March 22, 1973, captioned
A Chief Minister Runs Amuck--Indian Democracy in Danger--An Appeal for Succour by Hardwarilal", and the issue and publication by him of the booklet Annexure P-2, dated August 30, 1973, under the heading "Emergence of Rough and Corrupt Politics in India--Anatomy of a Chief Minister.
26. Para II which contains only one main paragraph enumerates certain alleged features of the contents''of the privilege motion and its admission by the Vidhan Sabha on November 12, 1973, which have been claimed to "throw the illegality and mala fides of the entire performance into bold relief." The various sub-paragraphs of that paragraph are mainly in the nature of the objections against the admission and adoption of the privilege motion on merits. Part III refers to the earlier writ petition (C.W.P. 625 of 1974) filed by the Petitioner to thwart the adoption of the privilege motion wherein he had prayed for the adjudication of the existence and the extent of the privilege claimed by the Vidhan Sabha and had requested for the Privileges Committee being restrained from proceeding in the matter, which petition had been dismissed on January 21, 1974, in limine.
27. Emphasis has been laid in six separate paragraphs of part IV of the petition on the fact that the Petitioner feels terribly aggrieved at the hands of the Vidhan Sabha whose decision to expel him from the House amounts to the deprivation of his fundamental rights under Articles 14 and 19(l)(a), (f) and (g) of the Constitution, and the existence of jurisdiction in the High Court to interfere with the proceedings and orders complained against for the following amongst other reasons:
(1) There is a conflict between the abovementioned fundamental rights on the one hand and the privileges claimed by the Vidhan Sabha under Article 194 of the Constitution on the other which conflict has to be resolved by the High Court by adopting harmonious construction.
(2) The supremacy of the Indian Legislatures is subject to the fundamental rights and any action of the Vidhan Sabha in exercise of its privileges under Article 194 is liable to be struck down if such action violates any fundamental right.
(3) The High Court has the exclusive jurisdiction to construe the scope and extent of the privileges, powers and immunities as is conferred on the Vidhan Sabha under Article 194(3) of the Constitution.
(4) The proceedings of the Vidhan Sabha resulting in the Petitioner''s expulsion from the House suffer not only from mere irregularity but from gross illegality, as--
(a) the House has acted without having power to act;
(b) the House has contravened Article 208(1) of the Constitution and ignored the principles of natural justice;
(c) Vidhan Sabha has passed the law expelling the Petitioner which contravenes Article 13(2) of the Constitution;
(d) the action of the House expelling the Petitioner is mala fide; and
(e) in expelling the Petitioner from the House, the Vidhan Sabha has gone against the basic features and the general framework of the Constitution.
(5) It is open to the Court to examine the validity of the grounds set out in the report of the Privileges Committee on which the Petitioner has been expelled.
28. Fault has been found in 13 separate paragraphs (and various sub-paragraphs thereof) of Part V of the petition with the proceedings and report of the Privileges Committee on various grounds. In Part VI containing eleven separate paragraphs, various procedural and other objections have been raised against the proceedings in the Vidhan Sabha culminating in the passing of the impugned resolution. In paragraph 4 of Part VII reference has been made to the individual items of the privilege motion. In Part VIII the legality, validity arid constitutionality of the impugned resolution and notifications have been challenged on various grounds wherein the Petitioner has sought to show that the Vidhan Sabha has no power or jurisdiction whatever to expel the Petitioner from the House as no such power had been claimed by the British House of Commons at the time of the commencement of the Indian Constitution and the onus to show the existence of such a privilege is on the Vidhan Sabha. It has further been alleged that even if the House of Commons had at the relevant time the power to expel any of its members, Article 194(3) of the Constitution does not transfer such power to the Indian Legislature. It has also been made out that the expulsion of a duly elected member amounts to subversion of the right of his electors and to their disenfranchisement, and, therefore, the exercise of such a power comes into direct conflict with the principle of representation enshrined in Articles 170, 172 and 326 of the Constitution. Certain additional grounds attacking the validity and constitutionality of the impugned proceedings and orders have been taken up in Part IX of the petition. The contents of Part IX are mainly repetition of what has been stated at one or the other place in the earlier parts of the petition. Part IX-A contains the prayer clause to which reference has already been made.
29. The Division Bench (Sandhawalia and P.C. Jain, JJ.), who admitted the petition on March 25, 1975, after giving notice of motion to the Respondents directed that in view of the significant constitutional issues raised in the case, the petition be heard by a Full Bench of five Judges. The prayer for stay at that stage was declined. Respondent No. 1 did not take any interest in the petition and did not put in appearance to contest the same.
30. The Vidhan Sabha (Respondent No. 2) did not put in appearance in the case. The Advocate-General of Haryana, who appeared for Respondents 3 to 5 and 19, requested us to make a particular note of the fact that the Vidhan Sabha has not submitted to the jurisdiction of the Court and is not appearing in the case. This petition has, therefore, been heard ex-parte against Respondents 1, 2 and 6 to 18.
31. Large number of applications have been filed in this case by the Petitioner from time to time. Right in the beginning the Petitioner prayed to the Court that his application for staying the operation of the impugned order (CM. 1158 of 1975) should first be heard and disposed of. The contesting Respondents on the other hand filed an application (CM. 1153 of 1975, dated 30th April, 1975) praying for a direction to the Petitioner to delete certain passages in his prolix petition which were according to the Respondents scandalous and unnecessary. The hearing of the Petitioner''s application for stay started on May 6, 1975, and culminated in the passing of our order, dated May 7, 1975, wherein we directed that:
(i) Respondent No. 1 (the Election Commission) shall not proceed to hold the by-election in pursuance of the Haryana Assembly Secretariat notification, dated January 8, 1975 (Annexure P, 7), till the final disposal of this writ petition; and
(ii) the Petitioner would (during the pendency of the writ petition) be entitled to attend the sessions of the Haryana Legislative Assembly and sign the register for the minimum number of days to keep his seat intact, but shall not take part in the proceedings of the said Assembly or vote or draw any remuneration.
32. After the disposal of the stay application of the Petitioner, the learned Advocate General first pressed his application (CM. 1153 of 1975) for directing the Petitioner to delete or otherwise expunge certain passages in the writ petition which were described as being abusive or scandalous and wholly unnecessary for the adjudication of the; real points in controversy in the case. Ultimately it was agreed between the parties; and really at the instance of the Petitioner, that the Advocate-General may first address the Court on the preliminary objections taken up in the written statement of Respondent No. 3 to which the Petitioner would reply, and the Advocate-General would make further submissions if necessary, and that only if and after the Court decides to go into the charge of malice, arguments on that point would be heard and decision as to the necessity to expunge or delete any portion of the petition would be recorded. All the legal issues involved in the case were thereupon argued at length by the Petitioner himself on the one side and by Mr. Jagan Nath Kaushal, the then Advocate General, on behalf of the contesting Respondents before myself and Koshal, Sandhawalia, Jain, and Gujral, JJ.
33. After conclusion of the hearing on those legal points in the last week of March, the Bench fixed March 29, 1976, for deliberations on those points. Two days earlier (on March 27, 1976), I had to be transplanted as Acting Governor of Haryana consequent upon the sudden demise of Mr. B.N. Chakravarty. Before I could come back to the High Court, Koshal, J., had been transferred to Madras and Gujral, J., to Gangtok as Chief Justice of the Sikkim High Court. The Bench was thereupon reconstituted (as at present) by the order of O. Chinnappa Reddy, A. C.J., in my absence.
34. All the other miscellaneous applications of the Petitioner which were pending till December 6, 1976, with the exception of CM. 1153 of 1975, dated April 30,1975, were disposed of by us on that day (the other applications having been disposed of by the earlier Bench). On that day (December 6, 1976), when a large number of other applications of the Petitioner were disposed of by us, the Petitioner as well as the learned Advocate-General agreed that no arguments were necessary on this application, and that after taking into account the contents of the application and the written reply thereto final order on the application may be passed along with the judgment in the main case. We directed accordingly. At the fag end of the arguments of the learned Senior Deputy Advocate-General on the merits of the controversy, he made a submission to the effect that out of the various passages and portions in the writ petition to which specific objection has been taken by the contesting Respondents in the statement attached to CM. 1172 of 1975 (in which application permission of the Court was sought to allow the said statement to form part of the main application, that is CM. 1953 of 1975, which application was allowed by the order of the Court, dated May 6, 1975), he wanted to press the striking out of only those words or expressions in the sentences reproduced below which have hereunder been underlined by me:
(i) in paragraph 3 of Part I at page 1---but the Petitioner was familiar with his shady back-ground;
(ii) in paragraph 7 of Part I at pages 2 and 3---comparatively unknown and possessing an extremely shady background and no political following;
(iii) in paragraph 10 of Part I at page 3---when he started his legal practice in the tahsil town, Bhiwani, in 1956-57, the illrepute of his family and his own (reference is invited to Annexure P. 2--its pages 31, 32 and 33--''Bansi Lal through the years'') stood in his way;
(iv) in sub-paragraph (g) of paragraph 13 of Part I at page 9---Mr. Bansi Lal ensured (through his unhealthy association with the then Speaker---);
(v) in paragraph 15--"another and a more detailed booklet depicting, Mr. Bansi Lal''s shady past and exposing his current corruption and misrule---"; and
(vi) in paragraph 16(d) at page 11---Police records pertaining to Mr. Bansi Lal''s shady activities from 1947 to April, 1948.
35. CM. 1153 of 1975, read with the statement attached to CM. 1172 of 1975, in so far as it relates to the prayer for striking out scandalous and irrelevant allegations other than those enumerated above, is, therefore, dismissed as not pressed. The Petitioner has half-heartedly opposed even the striking out of the words or portions of sentences referred to by me above. After carefully considering the matter we are of the opinion that the learned Advocate-General is correct in submitting that the words underlined by me in the six sentences in the petition quoted verbatim by me are scandalous and irrelevant. These allegations are wholly unnecessary and even most serious allegations made in the petition relating to the alleged mala fides of the then Chief Minister stand intact without the objectionable words. The words in the above-quoted sentences to which exception has been taken in the application and pressed by the learned Advocate-General are considered by us to be wholly unnecessary for purposes of pressing and prosecuting the main petition. It appears to us that the only object of the Petitioner to put in those words in the petition was to prejudice the fair trial of the petition. We, therefore, allow CM. 1153 of 1975, to the extent of directing that ,the above-mentioned underlined words in the above-quoted sentences in the petition may be struck out. The striking out of the said objectionable words does not materially change the construction of the sentences in which they occur and no other consequential amendment in the petition is called for. CM. 1153 of 1975 stands disposed of in these terms.
36. On the merits of the controversy separate written statements, have been filed by Respondents Nos. 3 to 9, 11 to 13 and 16. In the. return of the Secretary to the Vidhan. Sabha (Respondent No. 3) various preliminary objections have been taken. It has been mainly contended that:
(i) the power and privilege, of a House of Legislature to expel its Members as a measure of punishment on the ground of an act or conduct, unbecoming of the Member and derogatory to the Speaker or Members) of the House is well-established, absolute and exclusive and is beyond question;
(ii) any matter touching the conduct of the Member and concerning the Speaker of the House can be examined, discussed and adjudged in. the House alone to which it relates;
(iii) no question other than that of constitutional existence of the powers, privileges and immunities of the House of Legislature can form the subject-matter of inquiry by the High Court;
(iv) it is not open to the Petitioner to aissail the vote of the Members of the House on the ground that his relations with the Chief Minister or with the Members of the House or of the Privileges Committee were strained, or because the members of the Committee of Privileges had poor academic qualifications or were inexperienced, or on the ground that any of the members did not exercise his right of vote independently;
(v) the vote of the House cannot possibly be described as mala fide nor can the resolution to expel the Petitioner resulting from such vote be assailed on the ground of malice;
(vi) the attack on the Chief Minister or any member of the Privileges Committee is wholly irrelevant as the expulsion of the Petitioner was the result of a unanimous vote of all the members of the House who were present at the time of the impugned decision;
(vii) the question whether the Petitioner was or was not afforded an opportunity of defending himself before the Committee of Privileges and before the House cannot be made the subject-matter of inquiry before the High Court;
(viii) the Legislature is supreme. The Speaker and Members of the Assembly are not subject to the jurisdiction of the Court and none of them can be summoned to answer the allegations made by the Petitioner in relation to the proceedings of the Privileges Committee or of the House or the resultant expulsion of the Petitioner from the House; and
(ix) the petition has not been presented bona fide.
On the merits, the pleas taken up by the Respondents are that the power and privilege to expel a Member of the House vested in the House of Commons as on January 26, 1950, and consequently vested in the Indian Legislatures, that the exercise of such power or privilege has nothing to do with the constitution of the House but is based on the power to punish a member for his misconduct, and inasmuch as there is no doubt about the existence or extent of the power of expulsion the jurisdiction of the High Court to look into the matter beyond that, that is on the basis of procedural or other errors is constitutionally barred. Respondent No. 4, the then Chief Minister of Haryana, in addition to the defence to the petition on same or similar grounds emphatically denied the charge of mala fides against him, and has prayed for the scandalous allegations made against him being struck out. Same is the position relating to the return of Shri Banarsi Dass Gupta, the then Irrigation Minister, Haryana, who was the Speaker of the Vidhan Sabha at the time of the passing of the impugned resolution, and is now the Chief Minister of the State. The pleas taken up in the written statements of the other Respondents do not require any separate mention The Petitioner did not address us at all on some of the grounds mentioned in his petition. I will be dealing with only those matters on which he addressed us after the reconstitution of the Bench.
37. Since the Advocate-General did not object to our hearing the Petitioner on the merits of his plea of mala fides subject to our decision on the preliminary legal issue on that point, we have heard the Petitioner at length on that issue as well.
38. Before dealing with the detailed arguments addressed by the parties on the legal issues raised by both sides, it appears to be necessary to notice the provisions of Articles 194 and 212 of the Constitution. Article 194 states:
(1) 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.
(2) 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 there of, and no person shall be "so liable in respect of the publication by or under the authority of a House of such a Legislature or any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of 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 denned by the Legislature by law, and, until so denned, 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.
(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 the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.
Article 212 reads as follows:
(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.
39. From a plain reading of the above-quoted mandatory provisions and admitted facts it is clear and undisputed that:
(1) the Haryana Legislature has not enacted any law defining the powers, privileges and immunities of the House and its Members and Committees;
(2) in the admitted absence of such a law, as it referred to above, the powers, privileges and immunities of the Vidhan Sabha are those which were enjoyed by the House of Commons of the Parliament of the United Kingdom and its members and committees at the time of the commencement of the Constitution, subject to certain exceptions to which reference is hereinafter being made; and
(3) the proceedings of the Vidhan Sabha cannot be called in question on the grounds of a mere irregularity of procedure.
40. Before noticing the contentions of the Petitioner on which lengthy arguments have been, addressed by him it is pertinent to place on record the fact that the Petitioner has for obvious reasons expressly given up that part of his case which was based on Articles 14 and 19 of the Constitution. Had he not done so, the hearing of this petition would have been stayed till the revocation or expiry of the relevant proclamations issued by the President of India under Article 359 of the Constitution during the current emergency.
41. The first question that calls for decision is whether in the exercise of its powers under Article 226 of the Constitution this Court can at all question the legality, validity, propriety or bona fides of the impugned decision of the Vidhan Sabha expelling the Petitioner. The relevant portion of Article 226(1) of the Constitution is extracted below:
Every High Court shall have power to issue to any person or authority orders or writs for the enforcement of any of the rights conferred by Part III and for any other purpose.
The brood contention of the Petitioner is that the expression "authority" in Article 226(1) includes a House of Legislature in India even if the House is not considered to be "any person". He has sought to derive strength for this submission from the definition of the expression "the State" in Article 12 of the Constitution wherein it is provided that the expression "the State" includes (amongst others) the Legislature of each of the States and all local or other authorities. He had further argued that Clause 38 of the 44th Constitution Amendment Bill has clarified this position beyond doubt. In place of the words "for the enforcement of any of the rights conferred by Part III or for any other purpose" in the present Clause (1) of Article 226, the following three sub-clauses are being substituted by the amendment in question:
(a) for the enforcement of any of the rights conferred by the provisions of Part III; or
(b) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law or other instrument made thereunder; or
(c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in Sub-clause (b) where such illegality has resulted in substantial failure of justice.
The argument of the Petitioner is that if Sub-clauses (b) and (c) are read together it leads to the inevitable conclusion that for the redress of "any injury" by reason of "any illegality in any proceedings" by or before any authority under any provision of any rule or regulation made under the Constitution or any other enactment or ordinance a writ would lie to the High Court. The words on which emphasis was laid by the Petitioner while addressing this argument, have been underlined by me. His submission is that "any authority" would include the State Legislature and "any rules" would include those framed by the Vidhan Sabha under Article 208 of the Constitution where such illegality has resulted in substantial failure of justice. We do not agree with the Petitioner that the scope of Article 226 has in any manner been enlarged by Section 38 of the Amendment Act either in respect of the persons to whom a writ can issue or in respect of the circumstances in which relief may be granted under that Article.
42. In any case, this limb of the Petitioner''s argument need not detain us in view of the law laid down by the Supreme Court in the U.P. Legislature case that at least in some circumstances a petition under Article 226 of the Constitution can be. filed against a State Legislature notwithstanding Article 194(3). The correct position in this respect is being discussed by me in a later portion of this judgment while dealing with the Petitioner''s precise argument regarding the jurisdiction of this Court for issuing writs or orders to the State Legislatures.
43. His next submission in this regard is that the writ jurisdiction of this Court is akin to that of the Courts in England, and inasmuch as the Courts in England can issue writs or directions to the House of Commons (for some restricted purposes), it cannot be denied that the powers of the High Courts in India are any lesser. Reference was made by the Petitioner to paragraphs 917 and 918 at page 467 of Halsbury''s Laws of England (Third Edition), Volume 28, which are reproduced below:
917. The position of the courts of law.--Each House claims to be the sole and exclusive judge of its awn privilege and of the extent of that privilege. In opposition to this claim the courts of law, while allowing the existence of privileges essential to the discharge of the functions of the two Houses, assert that they have judicial knowledge of the extent of privilege and that they are not bound by resolutions of either House declaratory of privileges; and they have maintained mainly in relation to the Commons that that are bound to decide questions coming before them which involve, contravention of the law of the land, even if privilege is concerned.
918. Limits of agreement regarding jurisdiction.--In spite of this dualism of jurisdiction, a large measure of agreement on the respective spheres of the two Houses and the courts has been reached, which has, since the mid-nineteenth century, prevented the direct conflict of earlier years.
Although the Houses have never directly admitted the claim of the courts of law to adjudicate on matters of privilege, they appear to recognise that neither House is by itself entitled to claim the supremacy which was enjoyed by the undivided Hindu Court of Parliament. Furthermore it is admitted by both Houses that neither House can by its own resolution claim a new privilege.
For their part the courts of law acknowledge that the control of each House over its own proceedings is absolute and not subject to judicial jurisdiction; and the courts of law will not interfere with the interpretation of a statute by either House so far as the proceedings of the House are concerned. Neither will the courts of law inquire into the reasons for which a person has been adjudged guilty of contempt and committed by either House, when the order or warrant upon which he has been arrested does not state the causes of his arrest; for in such cases it is presumed that the order or warrant has been duly issued unless the contrary appears upon the face of it.
44. The first English case to which our attention was invited by the Petitioner is Stockdale v. Hansard (1839) 9A E.I. The defence plea in an action for defaming the Plaintiff by imputing to him the publication of an obscene libel was that the documents in question had been printed by or under the orders of the House of Commons, and therefore, the grievance complained of being an act or order of the Commons, which is a Court superior to any Court of law and none of whose proceedings can be questioned in any way the action must fail. In the judgment of the Queen''s Bench Lord Denman, C.J., observed that the above-mentioned defence was a claim for an arbitrary power to authorise the commission of any act whatever on behalf of a body which in the same argument is admitted not to be the supreme power in the State. The learned Chief Justice further observed as below:
The supremacy of Parliament, the foundation on which the claim is made to rest, appears to me completely to overturn it, because the House of Commons is not the Parliament, but only a co-ordinate and component part of the Parliament. That sovereign power can make and unmake the laws; but the concurrence of the three legislative estates is necessary; the resolution of any one of them cannot alter the law, or place any one beyond its control. The proposition is, therefore, wholly untenable, and abhorrent to the first principles of the Constitution of England.
Patteson, J., agreed with Lord Denman, C.J., in answering in the negative the question whether an action at law will lie in any case for any act whatever admitted to have been done by the order and authority of the House of Commons. Dealing with the second question "whether a resolution of the House of Commons, declaring that it had power to do the act complained of, precludes the Court of Queen''s Bench from enquiring into the legality of that act", the learned Judge (Patteson, J.), made the following observations.--
As it has been shown that it is possible that the House, however unintentionally, may make illegal orders, and that, if it should do so, those who carry them into effect may be proceeded against by action at law, it follows that the Court in which such action is brought must, upon demurrer, enquire into the legality of those directory orders, and cannot be precluded from doing so by the mere fact of those orders having been made.
The proposition is certainly very startling, that any man, or body of men, however, exalted, except the three branches of the Legislature concurring, should, by passing a resolution that they have power to do an act illegal in itself, be able to bind all persons whatsoever, and preclude them from enquiring into the existence of that power and the legality of that act.
But, after all, there is nothing so mysterious in the law and custom of Parliament, so far at least as the rest of the community not within its walls is concerned, that this Court may not acquire a knowledge of it in the same manner as of any other branch of the law.
It is, indeed, quite true that the members of each House of Parliament are the sole Judges whether their privileges have been violated, and whether thereby any person has been guilty of a contempt of their authority; and so they must necessarily adjudicate on the extent of their privileges. All the cases respecting commitments by the House, mostly raised upon writs of habeas corpus, and collected in the arguments and judgments in Burdett v. Abbot (1811) 14 East 1, establish, at the most, only these points, that the House of Commons has power to commit for contempt; and that, when it has so committed any person, the Court cannot question the propriety of such commitment, or inquire whether the person committed had been guilty of a contempt of the House in the same manner as this Court cannot entertain any such questions, if the commitment be by any other Court having power to commit for contempt.
In the concluding portion of his judgment Patteson, J., held:
Upon the whole the true, doctrine appeals to me to be this: that every Court in which an action is brought upon a subject-matter generally and prima facie within its jurisdiction, and in which, by the course of the proceedings in that action, the powers and privileges and jurisdiction of another Court come into question, must of necessity determine as to the extent of those powers, privileges, and jurisdiction; that the decisions of that Court, whose powers, privileges, and jurisdiction are so brought into question, as to their extent, are authorities, and, if I may so say, evidences in law upon the subject, but not conclusive. In the present case, therefore, both upon principle and authority, I conceive that this Court is not precluded by the resolution of the House of Commons of May 1837 from inquiring into the legality of the act complained of, although we are bound to treat that resolution with all possible respect, and not by any means to come to a decision contrary to that resolution unless we find ourselves compelled to do so by the law of the land, gathered from the principles of the common law, so far as they are applicable to the case, and from the authority of decided cases, and the judgments of our predecessors, if any be found which bear upon the question.
I come then to the third question: whether the act complained of be legal or not. I do not conceal from myself that, in considering this point, the resolution of the House of Commons of 31st May, 1837, is directly called in question; but, for the reasons, I have already given, I am of opinion that this Court is not only competent, but bound, to consider the validity of that resolution, paying all possible respect, and giving all due weight, to the authority from which it emanates.
Little dale and Coleridge, JJ., having arrived at the same conclusion, the judgment of the Queen''s Bench was delivered for the Plaintiff who had brought the action for defamation.
45. The Petitioner also referred to the following passage in the Introduction, given by Keir and Lawson in their "Cases in Constitutional Low" Fourth Edition at page 125 on the subject of Parliamentary Privilege:
The combined effect of the decisions in Ashby v. White Paty''s case. Stockdale v. Hansard and the Case of the Sheriff of Middlesex is this. The courts deny to the Houses the right to determine the limits of their privileges, while allowing them within those limits exclusive jurisdiction. But the Houses have never expressly renounced the view that their claim to be judges of their, own privileges is a claim to judge both of breaches of their undoubted privileges, and of the very existence and limits of those privileges themselves. Moreover, although the courts do not and cannot recognise this claim directly, they are bound to give way whenever either of the Houses chooses to enforce it indirectly by committing the refractory litigant for contempt.
The cases of Paty and The Sheriff of Middlesex prove that the claim takes practical effect and is not merely brutum ful-men. And, by conceding to the Houses of Parliament in their capacity of superior courts the right of committing for contempt without causes shown, the Courts have really yielded the key of the fortress, by giving them the power of enforcing against the world at large their own views of the extent of their privileges.
Thus there may be at any given movement two doctrines of privilege, the one held by the courts, the other by either House, the one to be found in the Law Reports, the other in Hansard, and no way of resolving the real point at issue should conflict arise. For all practical purposes, however, a sufficient measure of tacit agreement has been reached to make the recurrence of such troubles unlikely.
46. The tacit agreement between the Parliament and the Courts in England referred to by Keir and Lawson in the above passage can best be described in the words used by Erskine, May in his treatise on the Law, Privileges, Proceedings, and Usage of Parliament Eighteenth (1971) Edition (hereinafter referred to as "May"> at page 197,--
In practice, however, there is a wide field of agreement on the nature and principles of privilege in spite of the apparent deadlock on the question of jurisdiction.
(1) It seems to be recognised that, for the purpose of adjudicating on questions of privilege, neither House is by itself entitled to claim the supremacy over the ordinary courts of justice which was enjoyed by the undivided High Court of Parliament. The supremacy of Parliament, consisting of the sovereign and two Houses, is a legislative supremacy which has nothing to do with the privilege jurisdiction of either House acting singly.
(2) It is admitted by both Houses that, since neither House can by itself add to the law, neither House can by its own declaration create a new privilege. This implies that privilege is objective and its extent ascertainable and reinforces the doctrine that it is known by the courts.
On the other hand, the courts admit:
(3) That the control of each House over its internal proceedings is absolute and cannot be interfered with by the courts.
(4) That a committal for contempt by either House is in practice within its exclusive jurisdiction, since the facts constituting the alleged contempt need not be stated on the warrant of committal.
47. The field of agreement is thus wide. With respect to rights exercisable within a House the jurisdiction of the House is complete; and it is in practice so with respect to rights exercisable outside a House in the principal way in which the Courts might come into contact with such rights, namely, in punishment for contempt or breach of privilege. The remaining opportunities for conflict with the courts are therefore, narrow.
In ultimate analysis May has stated at page 198 that "the Courts have always, at any rate in the last resort, refused to interfere in the application by the House of any of its recognised privileges."
48. Chaudhry Hardwari Lal also invited our attention to the-following passage in ''Wade and Phillips'' Constitutional Law (Sixth Edition) at page 144 in Chapter Ten relating to Privileges of Parliament:
The courts, while reluctant to enquire into the exercise of privilege, so far as it concerns the internal proceedings of either House or their relations with one another, will not admit of its extension at the expense of the rights of the" subject. For to do so would involve recognising that one House could change the law by its own resolution.
49. The last English case to which I need refer on this subject is of Bradlaugh v. (1884) 12 GLR 271 . The Advocate General had relied on-the dictum of the Queen''s Bench in that case. According to the Petitioner the English Courts had retracted from the position taken up in Bradlaugh v. Gossett in a large number of subsequent decisions. The ratio of the judgment in Bradlaugh v. Gossett has, however, assumed importance for us in view of the fact that the same appears to have been approved by their Lordships of the Supreme Court in their recent judgment in
What is said or done within the walls of Parliament, cannot be inquired into in a court of law. On this point all the judges in the two great cases which exhaust the learning on the subject,--Burddet v. Abbott and Stockdale v. Hansard,--are agreed, and are emphatic. The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough. ''They would sink into utter contempt and inefficiency without it.
The emphasis has been supplied by me to bring out clearly the fact that whatever may be said about the persons who are not members of a Legislature regarding their rights to question any action, decision or resolution of a Legislature (as was done in the U.P. Legislature case before the Supreme Court on reference by the President of India), the jurisdiction of a House of Legislature over its own members is absolute and unquestionable in Courts in the matter of imposition of discipline by the decision or resolution arrived at or adopted within the four walls of the House. The wisdom of the following question put by Stephen, J. to himself and the answer given by the learned Judge to the same in Bradlaugh''s case can best be appreciated by quoting the same in the Judge''s own language, from page 278 of the official report (the Law Reports):
The legal question which this statement of the case appears to me to raise for our decision is this:Suppose that the House of Commons forbids one of its members to do that which an Act of Parliament requires him to do, and, in order to enforce its prohibition, directs its executive officer to exclude him from the House by force if necessary, is such an order one which we can declare to be void and restrain the executive officer of the House from carrying out? In my opinion, we have no such power. I think that the House of Commons is not subject to the control of Her Majesty''s Courts in its administration of that part of the statute-law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable.
50. The same learned Judge referred to the various previous decisions on the subject in the following passage (page 279 of the official report) in order to arrive at a conclusion that the House has exclusive jurisdiction in such matters:
Lord Denman says (1): "Whatever is done within the walls of either assembly must pass without question in any other place." Littledale, J., says (2): ''it is said the House of Commons is the sole judge of its own privileges; and so I admit as far as the proceedings in the House and some other things are concerned.'' Patteson, J., said (3): ''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.'' And Coleridge, J., said (4): ''That the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there is violation of its rules or derogation from its dignity, stands upon the clearest grounds of necessity.
Reference was made by Stephen, J. to the resolution of the House to exclude a member being immune from any attack on it in a Court in the following words:
The resolution to exclude him from the House is a thing ''done within the walls of the House'' to use Lord Denman''s words. It is one of those ''proceedings in the House of which the House of Commons is the sole Judge'' to use the words of Littledale, J. It is a ''proceeding of the House of Commons in the House'' and must therefore, in the words of Patteson, J., ''be entirely free and unshackled.'' It is ''part of the course of its own proceedings,'' to use the words of Coleridge, J., and is therefore ''subject to its exclusive jurisdiction.'' These authorities are so strong and simple that there may be some risk of weakening them in adding to them.
51. I will refer to the Indian cases on the subject in, so far as possible, chronological order. In
(i) Even an erroneous decision by the Speaker or the House in respect of a breach of privilege cannot be the subject matter of scrutiny by a Court of law. 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. "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...
(ii) 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....
(iii) Both the Speaker and the other officers (of the Legislative Assembly) are protected from scrutiny by a Court of law for what was done in the House...
(iv) As I have indicated there are good reasons why this Court should not interfere with the mode in which the Legislature conducts its internal affairs. In the ultimate analysis, it is as was hinted by Lord Coleridge C.J. in Bradlaugh v. Gossett (supra) in an assiduous education of the tremendous forces generated by a vast electorate that remedies against real or supposed highhandedness on the part of any particular legislature lies. With all those matters which are of a political nature, this Court has no concern.
52. In
53. On the question of jurisdiction of the Court, the Supreme Court observed as under:
(i) It must not be overlooked that the provisions of Article 105(3) and Article 194(3) are constitutional laws and not ordinary laws made by Parliament or the State Legislatures and that, therefore, they are as supreme as the provisions of Part III. Further, quite conceivably ova: Constitution makers, not knowing what powers, privileges and immunities Parliament or the Legislature of a State may arrogate and claim for its Houses, members or committees, thought fit not to take any risk and accordingly make such laws subject to the provisions of Article 12; but that knowing; and being satisfied with the reasonableness of the powers, privileges and immunities of the House of Commons at the commencement of the Constitution, they did not, in their wisdom, think fit to make such powers, privileges and immunities subject to the fundamental right conferred by Article 19(1)(a)... we prefer to express no opinion as to whether there has, in fact, been any breach of the privilege of the House, for of that the House alone is the judge (paragraph 32)...
If the Legislative Assembly of Bihar has the powers and privileges it claims and is entitled to take proceedings for breach thereof, as we hold it is, then it must be left to the House itself to determine whether there has, in fact, been any breach of its privilege (Paragraph 34).
After the judgment of the Supreme Court in the above-mentioned petition (writ petition No. 122 of 1958) of Sharma under Article 32 was announced, he filed another writ petition (No. 106 of 1959) which he later withdrew. In the meantime, the Committee of Privileges of the Assembly gave notice to the Petitioner whereupon he filed a third petition in the Supreme Court (petition under Article 32 of the Constitution No. 176 of 1959). The decision by which that petition was disposed of by their Lordships of the Supreme Court is reported in
It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference by this Court under Article 32 of the Constitution. Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non-compliance with rules of procedure cannot be a ground for issuing a writ under Article 32 of the Constitution: vide
54. The Petitioner has placed great reliance on various observations made by a Bench of seven Hon''ble Judges of the Supreme Court in their Lordship''s opinion under Article 143 of the Constitution of India in the matter of
Whether, on the facts and circumstances of the case, it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of the said two Hon''ble Judges and Mr. B. Solomon, Advocate, and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other Respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly.
The above-mentioned question was answered in the Court''s unanimous opinion in the affirmative. Gajendragadkar, C.J., who wrote the main opinion, gave the following answer to the question: On the facts and circumstances of the case, it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of the said two Hon''ble Judges and Mr. B. Solomon, Advocate, and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other Respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly.
In rendering the above-mentioned answer the Supreme Court specifically prefixed it with the observation 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. The answer returned to question No. (4) does not, therefore, relate to contempt proceedings against a member of the House, but only to proceedings against non-Members, and cannot, therefore, be said to be of any'' direct avail to the Petitioner. 55. Since however the Petitioner has forcefully placed reliance on the following passage in the opinion of the Supreme Court in the U.P. Legislature case, I may quote the same verbatim: Let us first take Article 226. This Article confers very wide powers on every High Court throughout the territories in relation to which it exercise jurisdiction to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose. It is hardly necessary to emphasise that the language used by Article 226 in conferring power on the-High Courts is very wide. Article 12 defines the ''State'' as including the Legislature of such State, and so, prima facie the power conferred on the High Court under Article 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 of a writ of habeas corpus, it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is by an order of the House. Article 226(1) read by itself, does not seem to permit such a plea to be raised.
56. What is stated above was the answer to the question posed by Gajendragadkar, C.J. in paragraph 28 of the Court''s opinion. That question was worded as follows: 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? 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? And, if in enforcement of its decision the House issues a general or unspeak-ing 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?
It was, of course, conceded before the Supreme Court that the House has the power to inquire whether its contempt had been committed by any one even outside its four-walls and has the power to impose punishment for such contempt. All that was contested was whether it would or would not be open to the House to make a claim that its general warrant should be treated as conclusive, it is, therefore, significant that the main issue on which the Supreme Court was called upon to give its opinion and on which it dwelt at length related to the power of the High Court to examine the unspeaking and general warrant issued by a State Assembly in the course of adjudicating upon a habeas corpus petition in order to find out whether the House has or has not the power to punish the Petitioner. Their Lordships of the Supreme Court referred to the two exceptions to their jurisdiction recognised by the English Courts in favour of the Parliament, namely, (a) the exclusive jurisdiction over the internal proceedings of the House and (b) the right of either House of the Parliament to punish for its contempt (paragraph 83 of the opinion) and also to the tacit agreement between the Courts on the one hand and the Parliament on the other (in paragraph 86 of the opinion) to which I have already referred from May. The contention advanced on behalf of the U.P. Legislature that the construction placed by the House on any provision of the Constitution was itself final was rejected by their Lordships and it was held that the decision about the construction of Article 194(3) must ultimately rest with the judicature of the country. The nature, scope and effect of the power of the House, held the Supreme Court, will be determined by the Courts and not by the House (paragraph 42 of the opinion). Distinction was drawn between the sovereignty claimed by the Parliament in England and the position of the Indian Parliament and it was held that the sovereignty claimed by the British Parliament cannot be claimed by any Legislature in India in the literal absolute sense, since there is no written Constitution in England and there is one in India (paragraph 41 of the opinion). It was, however, granted to the House in paragraph 32 of the opinion that the freedom of vote and freedom of speech within the House is absolute and unfettered and that no Court can examine how the vote has been exercised and whether any speech delivered in the House violates any law of the land. In paragraph 62, it was laid down that the validity of the proceedings of the Legislature can be questioned in the High Court on the ground of unconstitutionality and illegality but not on the ground of irregularity of procedure. This is what their Lordship precisely held in that behalf while considering the effect of Article 212(1) of the Constitution: Article 212(1) seems to make it possibly 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 scrutining is prohibited if the complaint against the procedure is no more than this that the procedure was, irregular.
This view has not been approved in Shrimati Indira Nehru Gandhi''s case (infra). 57. Dealing with the inviolability of a general warrant issued by-a House in India, their Lordships observed (paragraph 125 of the opinion): There is no doubt that the House has the power to punish for contempt committed outside its chamber, and from that point of view it may claim one of the rights possessed by a Court of Record. A Court of Record, according to Jawitt''s Dictionary of English Law, is a court whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony, and which has power to fine and imprison for contempt of its authority. The House, and indeed all the Legislative Assemblies in India, never discharged any judicial functions and their historical 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 general warrant issued by the House of Commons on the footing that it was warrant issued by 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.
In the same strain, it was further observed (in paragraph 128 of the opinion) that: It would indeed be strange that the judicature should be authorised to consider the validity of the legislative acts of our Legislatures, but should be prevented from scrutinising the validity of the action of the legislatures trespassing on the fundemental rights conferred on the citizens. If the theory that the general warrant should be treated as conclusive is accepted, then, as we have already indicated, the basic concept of judicial independence would be exposed to very grave jeopardy; and so the impact of Article 211 on the interpretation of Article 194(3) in respect of this particular power is again decisively against the contention raised by the House.
58. The most important passage in the U.P. Legislature case which goes in favour of the Petitioner, is in paragraph 132 of the opinion and is couched in the following language: It is hardly necessary to emphasise that in the enforcement of fundemental 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 Article 226 or Article 32 cannot be subjected to the powers and privileges of the House under Article 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 fundemental 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 Article 194(3).
59. The Petitioner lastly relied on the following observations contained in paragraph 138 of the opinion: We ought to make it clear that we are dealing with the question of jurisdiction and are not concerned with the propriety or reasonableness of the exercise of such jurisdiction. Besides in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction. ''Prima facie'', says Halsbury, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.
60. Since the view taken on certain salient features of the jurisdiction of the High Court under Article 226 of the Constitution in Sharma''s case (Searchlight case) on the one hand, and in the opinion delivered by the Supreme Court in the U.P. Legislature case on the other, is not completely reconcilable, an argument was raised by the Petitioner to the effect that even if what was held in paragraph 32 of Sharma''s case (supra) be not considered to be obiter dicta the same should be held to have been impliedly overruled by their Lordships'' opinion in the U.P. Legislature case. On the other hand, it was submitted by the learned Advocate-General that what was held in Sharma''s case is law laid down by the Supreme Court and is binding on every-one under Article 141 of the Constitution, but the opinion of the Supreme Court is not covered by Article 141 and does not, therefore, bind any one. It appears to be appropriate to deal with and dispose of this question at this very stage. The judgment of the Supreme Court in Sharma''s first case was delivered by a Bench of five Judges. Seven Hon''ble Judges of the Court were parties to the opinion given in the U.P. Legislature case. If both were judgments strictu sensu and can be held to be laying down law within the meaning of Article 141 of the Constitution, it is the opinion in the U.P. Legislature case which will supersede and impliedly overruled anything not consistent therewith which may have been decided in Sharma''s first case according to the guidance given by their Lordships themselves in such matters in Mattulal v. Radhe Lal A.I.R. 1974 S.C. 196, Union of India and Anr. v. K.S. Subramonian 1976 (2) SLR 519, and The State of U.P. v. Ram Chandra Trivedi 1976 (2) SLR 859 61. The contention of the Petitioner has throughout been that the opinion expressed and given by the Supreme Court under Article 143 of the Constitution is as much law laid down for purposes of Article 141 of the Constitution as is the judgment of their Lordships in any litigation. In support of his contention, the Petitioner has relied on the following cases: (i)
(ii)
(iii) Chhabildas Mehta M.L.A. and Ors. v. The Legislative Assembly, Gujarat State and Ors. 1970 GLR 729 741 paragraph 4) and; (iv)
62. In Syed Abdul Mansur Habibullah''s case (supra) (18), all that the learned Judge of the Calcutta High Court said in paragraph 6 of his judgment was that he was in respectful agreement with the "majority" opinion delivered by the Supreme Court. Being in respectful agreement of the opinion does not by itself amount to holding that the opinion was binding on the High Court under Article 141. 63. Similarly, the question does not appear to have been directly dealt with in paragraphs 10 and 11 of Yeshwant Rao''s case. It was only said therein that it was pertinent to refer to the "observations" of the Supreme Court in the U.P. Legislature case which was quoted therein and then followed. 64. Bhagwati, C.J. (as he then was) did observe in the course of the judgment prepared by him for the Gujarat High Court in Chhabildas Mehta''s casa as below: It is no doubt true that the majority opinion was expressed by the Supreme Court in its advisory jurisdiction under Article 143 but we do not see why on that account it ceases to be law declared by the Supreme Court within the meaning of Article 141. The Constitution has conferred diverse jurisdictions on the Supreme Court. There is the original jurisdiction under Article 131 : then there is the appellate jurisdiction under Articles 132, 133, 134 and 136; there is also writ jurisdiction under Article 32 : and lastly, there is advisory jurisdiction under Article 143. A point of law may arise for consideration in any of these jurisdictions and where such point of law is considered and the Supreme Court expresses what in its considered view is the correct position in regard to such point of law, it is clearly and indubitably a declaration of law by the Supreme Court. It is not material which jurisdiction provides the occasion for declaration of law. Whatever be the jurisdiction, when law is expounded by the Supreme Court, it is declared. The word ''declared'' in Article 141 must be given its plain natural meaning and so construed, it has a wide connotation. It is not limited by the requirement that there should be a decision in a lis inter parties.
65. The learned Advocate-General contended, on the other hand, that their Lordships of the Supreme Court have themselves held in clear terms that the answers returned by them to the questions posed before the Court in the reference in the U.P. Legislature case were not binding on any one. In paragraph 38 of the opinion, their Lordships held that "it may be that technically, the advisory opinion rendered by this Court on the Reference made to it by the President may not amount to judicial adjudication properly so-called and since there are no parties as such before the Court in the Reference, no-body would be bound by our answers." Distinction was drawn by their Lordships between an adjudication and an opinion. While overruling Mr. Seervai''s argument that the question of determining the nature, scope and effect of the powers of the House could not be said to lie exclusively within the jurisdiction of the Supreme Court, they further said: This conclusion, however, would not impair the validity of Mr. Seervai''s contention that the advisory opinion rendered by us in the present reference proceedings is not adjudication properly so-called and would bind no parties as such.
66. After carefully considering the contentions of both sides on this point, I am inclined to agree respectfully with the observations of Bhagwati, C.J. of the Gujarat High Court in Chhabildas Mehta''s case in this respect. Even if it could be held that the opinion expressed by the Supreme Court under Article 143 of the Constitution is not "law declared" by the Supreme Court within the meaning of Article 141 and would, therefore, not be binding on all the Courts by operation of Article 141, the opinion of their Lordships would, I respectfully think, be in any case binding on all the High Courts and lower Courts in India unless there is a direct judgment of the Supreme Court to the contrary on any particular point either by a. larger Bench of the Supreme Court or after considering the relevant, part of the opinion. 67. Once again picking up the thread in the chain of Indian cases relating to the jurisdiction of the High Courts in the matter of resolutions of State Legislatures, it was held fey a learned Single Judge of the Calcutta High Court in
68. In
69. In
70. In
Article 227 gives superintendence to this Court over all courts and tribunals within its territorial jurisdiction, but the Haryana Legislative Assembly is neither a Court nor a-tribunal subordinate to the Court over which it has jurisdiction of superintendence according to that article. The power of Mr. Speaker to regulate the procedure or the conduct of business in the House or for maintaining order in it is immune from the jurisdiction of this Court, under Clause (2) of Article 212. Same or similar immunity is also available to other officers of a State Legislature,, such as its Secretary. So Mr. Speaker and the Secretary of the Haryana Legislative Assembly are unnecessary parties to this petition. No relief has been claimed against them--neither has filed any return to this petition. Although these two preliminary objections on the side of the Respondents have merit, there still remains for consideration the main controversy in this petition.
It was further held in that case that the High Court cannot question the proceedings of the Legislature on the ground of non-observance of procedure laid down in the rules framed by the Assembly. The learned Judges also observed that the House can punish its members by the use of its inherent power as the powers and privileges of the Assembly under Article 194(3) are complete and are not controlled by the rules made under Article 208. 71. The main reliance of the Petitioner on the point in issue has been on the judgment of the Division Bench of the Gujarat High Court in Chhabildas Mehta''s case (supra) (20). It was held in that case that the jurisdiction of the High Court under Article 226 extended to all persons and authorities including Houses of Legislature and that the privileges of the House of Commons regarding regulation of its internal proceedings cannot be read in Article 226 which is a stranger to constitutional paramountcy of Article 226. It was on that basis that the learned Judges observed that no provision enacted in law can exclude its jurisdiction, and that, therefore, the decision of a legislative House is not immune from scrutiny of Court even in, respect of its internal proceedings, though mere irregularities are afforded complete protection., It was held that the Court can interfere under Article 226 if the proceedings suffer from lack of power. The contention of the learned Advocate-General is that the: law relating to jurisdiction of the High Court laid down by the Gujarat; High Court has been too-widely stated and that if it is not read subject to the limitations urged by him, we should hold that the case has not been correctly decided on that point. One of the important observations made in the Gujarat case is quoted below: We may point out that quite apart from the authority of the Supreme Court in the Presidential Reference, even on first principle it is not possible to accept the proposition that the House is the sole and exclusive Judge of its privileges and the Court has no jurisdiction to determine their istence or extent. (Emphasis supplied by me). There is no quarrel with the above proposition so far as it goes. The Petitioner has further relied on the following passages in the Gujarat case: (i) But save and except in cases falling within provisions of this kind (procedural defects made immune under Article 212 of the Constitution), the absolute and unrestricted jurisdiction of the High Court under Article 226 must extend to all persons and authorities including the House and if the House has taken any action which is beyond its power or plainly contrary to law, the High Court would have power to examine the legality and validity of such action at the instance of an aggrieved party. That would be merely one more instance of exercise of power conferred upon the High Court under Article 226 to maintain the rule of law. 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. * * * * * * Such a privilege would nullify the provisions of Article 226 in respect of this limited though it be. If that lie so, can it be said that this privilege is consistent with the basic principle underlying Constitution and its material provisions? Such a privilege would clearly be a stranger in our Constitution and we do not think it can legitimately be read in Article 194(3). (ii) We are, therefore, of the view that the privilege in Bradlaugh v. Gossett though enjoyed by the House of Commons at the commencement of the Constitution does not vest in the House or the Legislature under Article 194(3) and does not give immunity to the House from scrutiny of the Court even in respect of its internal proceedings. Of course, if there is any irregularity in the proceedings, Article 212(1) affords complete protection and the High Court''s jurisdiction is excluded but if the proceeding suffers from lack of power or plain agregious 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. 72. Mr. C.D. Dewan, the learned Advocate-General has ultimately referred to the following passage in the latest judgment of their Lordships of the Supreme Court in Smt. Indira Nehru Gandhi v. Shri Raj Narain (supra) A.I.R. 1975 S.C. 130 (at page) paragraph 553 (at page 2435) paragraph 571 (at page 2441) and paragraph 594 at page 2499, and has contended on the strength thereof that anything inconsistent therewith contained in the opinion of the Supreme Court in the U.P. Legislature case or in any judgment of the High Courts must be deemed to have been impliedly overruled thereby: (i) When a member is excluded from participating in the proceedings of the House, that is a matter concerning Parliament and the grievance of exclusion is in regard to proceedings within the walls of Parliament. In regard to rights to be exercised within the walls of the House the House itself is the judge. See May''s Parliamentary Practice 18th Ed. pp. 82-83, (1884) 12 QBD 271 at p. 285. 286. (Paragraph 69 at page 2321). (ii) In Bradlaugh v. Gossett, (supra) Bradlaugh claimed to make affirmation instead of taking, the oath. He was permitted to make the affirmation ''subject to any liability by statute'', and took his seat. Upon an action for penal ties it was decided finally by the House of Lords, that Bradlaugh had not qualified himself to sit by making the affirmation. On re-election, he attempted to take the-oath, but was prevented by order of the House which eventually directed the Serjeant to exclude him from the House until he undertook to create no further disturbance. Bradlaugh then brought an action against the Serjeant in order to obtain a ''declaration that the order of the House was beyond the power and jurisdiction of the House and void, and an order restraining the Serjeant at Arms from preventing Bradlaugh by force from entering the House. It was held that the Court had no power to restrain the executive officer of the House from carrying out the order of the House. The reason is that the House is not subject to the control of the Courts in the administration of the internal proceedings of the House. (Emphasis supplied by me). (Paragraph 70 at pages 2321.22). (iii) The second ground of challenge that there was no valid session of the House cannot be accepted for the reasons given above. It has also, to be stated that it is not open to the Respondent to challenge the orders of detention collaterally. The principle is that what is directly forbidden cannot be indirectly achieved. (Paragraph 87 at page 2324). (iv) Further it is provided in Clause (1) of Article 122 that the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. All this would show that the framers of the Constitution were anxious to ensure that the procedural irregularities and other grounds like those mentioned in Clause (2) of Article 100 should not vitiate the validity of proceedings of Parliament and that it would not be permissible to call in question those proceedings on such grounds. The observations on page 456 in the case of
(v) (After referring to the facts of Bradlaugh v. Gossett and quoting a certain passage from the judgment of Stephen J. therein. The above passage has been cited on page 83 in Erskine May''s Parliamentary Practice, 18th Ed. with at view to show that it is a right of each House of Parliament to be the sole judge of the lawfulness of its own proceedings. It would follow from the above that the courts cannot go into the lawfulness of the proceedings of the Houses of Parliament. (Last passage in paragraph 181 at pages 2344.45). 73. The above quoted authoritative pronouncements in the judgment of their Lordships of the Supreme Court in Smt. Indira Nehru Gandhi''s case establish beyond doubt: (a) That when a member of an Indian Legislature is excluded from taking part in the proceedings of the House (and this in my opinion would include an order of expulsion from the House) by a resolution of he House, the matter of exclusion of the member from the House relates to "proceedings within the walls of the Parliament" of which the House alone is the exclusive judge. (b) That the dictum and ratio of the judgment of the Queen''s Bench Division in Bradlaugh v. Gossett (supra) was approved by the Supreme Court and any law to the contrary subsequently laid down by the English Courts is not relevant for our purposes and should be deemed to have been dissented from, (c) That if it is not open to a person to challenge a particular order in a Court of law (for example, a resolution passed by a State Legislature within the four-walls of its House) the person aggrieved thereby cannot indirectly attack the validity of that order. (d) That the validity of any legislation or resolution passed by a Legislature cannot be questioned on the ground that the session was not properly constituted because this is a matter which is not justiciable in Courts as it pertains to the internal domain of the Legislature. (e) That the observations of the Supreme Court in the U.P. Legislature case to the effect that the proceedings of a Legislature can be scrutinised by a Court of law if they are alleged to be illegal and unconstitutional do not warrant the inference that a Court can hold the proceedings of a Legislature to be not valid and constitutional by going into collateral questions. It would be beyond the jurisdiction of the Courts to go into the lawfulness of the proceedings of a Legislature. 74. This finishes the cases to which reference has been made by both sides on the question of jurisdiction of the High Court in matters relating to proceedings, decisions or resolutions of the Legislatures. On a careful analysis of all these judgments, there appears to me to be no escape from concluding that: (i) The power conferred on the High Court under Article 226(1) can, in a proper case, be exercised even against the Legislature, (U.P. Legislature case). (ii) The theory about the general warrant being treated as conclusive cannot be accepted in India as the acceptance thereof would expose the basic concept of judicial independence to very grave jeopardy. The impact of Article 211 on the interpretation of Article 194(3) in respect of this particular power does not affect the jurisdiction of the High Court under Article 226 of die Constitution and of the Supreme Court under Article 32. (U.P. Legislature case). (iii) 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 contempt of their authority and so they must necessarily adjudicate on the question of their privileges. (U.P. Legislature case). (iv) The doctrine laid down by May at page 197 to the effect that a committal for contempt by either House is in practice within its exclusive jurisdiction has been approved in the U.P. Legislature case. 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 only some matters like punishment of its members for contempt or for breach of privilege. (May at page 197. approved in U.P. Legislature case). (v) The Courts in England are reluctant to inquire into the exercise of privilege so far as it concerns (a) the internal proceedings of either House or (b) their relations with one another. Disciplinary action taken by the House against its own members for contempt or breach of privilege is, therefore, immune against inquiry into its legality by a Court. (vi) The ratio of the judgment of the Queen''s Bench Division in Bradlaugh v. Gossett, approving the dictum in Burden v. Abbot and Stockdale v. Hansard, having been expressly approved by the Supreme Court in Smt. Indira Nehru Gandhi''s case, any law to the contrary laid down in subsequent English cases or by any High Court in India has to be ignored by our Courts. Consequently, what is said or done within the walls of an Indian Legislature cannot he inquired into by a Court of law except to the extent expressly permitted by the Constitution--e.g., the power of judicial review of legislative enactments. (vii) 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. That kind of a resolution is "a proceeding in the House" of the validity of which the House is the sole Judge. (viii) If a Legislature in India does have the power or privilege it claims, it alone is entitled to take proceedings for breach thereof and the House itself has to determine whether there has in fact been any breach of its privilege and the decision of the House on that point cannot be questioned on merits in a Court of law. (ix) Even if a House has not strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference with the conduct of its business (including the resolutions passed by it) by a High Court under Article 226 of the Constitution or by the Supreme Court under Article 32. (x) No Court can go into the question of validity of a privilege motion or of the notice given by the Committee of Privileges to its members in Privilege Proceedings, as all those proceedings are within the special jurisdiction of the Legislature itself which has the exclusive power to conduct its own business (vide decision of a Bench of 8 Hon''ble -Judges in M.S.M. Shurma''s case, (supra), which would overide anything to the contrary contained in the opinion of the seven-Judge Bench of the Supreme Court in the U.P. Legislature case). (xi) The freedom of vote and freedom of speech within the House is absolute and unfettered and no Court can examine how the vote has been exercised and whether any speech delivered in the House violates any law of the land. (Paragraph 32 of the opinion in the U.P. Legislature case). 75. I do not think there is any inconsistency whatever between the opinion of the Supreme Court in U.P. Legislature case and the judgment of their Lordships in Sharma''s case. Whereas the observations in Sharma''s case relating to the jurisdiction of the High Court under Article 226 of the Constitution for questioning the validity, etc., of punishments imposed by the House were intended to cover cases of members as well an non-members of the House, the opinion in the U.P. Legislature case has been expressly confined by their Lordships to cases of non-members. Since the Petitioner was admittedly a member of the Vidhan Sabha at the time of the passing of the impugned resolutions, the application of the observations of the Supreme Court on the subject in question stands expressly excluded by the note of caution sounded by their Lordships in paragraph 143 of the opinion of Gajendragadkar, C.J., with which the majority concurred. This is what was stated in this behalf in sub-paragraph (5) of paragraph 143: In rendering our answer to this question (Question No. (4) relating to the jurisdiction of the High Court) which is very broadly worded, we ought to preface our answer with the observation 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. (Emphasis supplied by me). The Petitioner''s case on the question of jurisdiction of the High Court is, therefore, governed, in my opinion, mainly by the ratio of the judgment of the Supreme Court in Sharma''s case from which no deviation has been made in this respect in the U.P. Legislature case so far as the members of the House are concerned. It is also significant in this behalf that the distinction between members and non-members of the House in the matter of disciplinary control of the House has throughout been maintained even in England and the exclusive and unquestionable disciplinary jurisdiction of the House over its own members does not appear to have been seriously questioned at any stage. As already observed, even if there is some difference in the law laid down by their Lordships of the Supreme Court in their second judgment in
For the foregoing reasons I hold that: (i) the State Legislature is an authority amenable to an appropriate writ, order or direction under Article 226 of the Constitution in suitable cases; (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 person affected thereby. As held by the Division Bench of the Madhya Pradesh High Court in Yeshwant Rao''s case, the correctness, legality or propriety of the resolution expelling the member of the House cannot be challenged in a Court of law once it is found that the Legislative Assembly has the power or privilege of expelling its member. 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 what 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 anyone or more of its members in the coursel of the 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 and in fact it is the duty of this Court to find out whether the Vidhan Sabha has the power or privilege to expel the Petitioner, and if so whether the order of Petitioner''s expulsion is within the extent to which that privilege or power resides in the House; and (vii) if the Petitioner has been expelled from the House for committing its contempt or the contempt of Mr. 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 interefere with the impugned order of expulsion merely because in the opinion of the Court the facts of the case may not be found to justify any punishment or punishment of expulsion. 76. With these findings on the question of jurisdiction of the High Court in writ proceedings I pass on to the next important question of the existence and extent of the power or privilege of expulsion in the Indian State Legislatures. The decision on this point will depend on the answer to the following questions: (a) Do all the privileges, powers and immunities of the House of Commons descend on the Indian State Legislatures by operation. of Article 194(3) or is there any exception to the same, and if so what are the exceptions? (b) Is the power or privilege to constitute itself (which vests in the House of Commons) expressed only in the three ways enumerated by the Supreme Court in paragraph 45 of the A.I.R. report of their Lordships'' opinion in the U.P. Legislature case, or that enumeration is merely illustrative and there can be additional ways (including expulsion of members) for the expression and exercise of that power? (c) Did 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? (d) If the answer to question (c) is in the affirmative was 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, contempt of the House or breach of its privilege or for doing something which lowers the dignity of the House? Point (a). 77. The plain language of Article 194(3) (already reproduced in an earlier part of this judgment) does not by itself admit of any exception to the list of powers and privilege enjoyed by the House of Commons in the applicability of that list and availability of those privileges, etc. to the State Legislatures. Nevertheless, even the broad language of Article 194(3) cannot bring within its sweep certain powers, privileges and immunities enjoyed by the Commons which, in the nature of things, cannot possibly be claimed by the Indian Legislatures either because the purpose for which those powers and privileges are claimed by the Commons is wholly absent in the case of our Legislatures or because any particular power or privilege may come into conflict with some express provision of the Constitution with which it cannot be reconciled or go against some express constitutional bar to the exercise of such power or enjoyment of the particular privilege. The broad claim made on behalf of the Legislative Assembly of U.P. to the effect that the latter part of Article 194(3) vests all the powers and privileges of the Commons in their broadest sweep in the Indian Legislatures was negatived by their Lordships of the Supreme Court in the U.P. Legislature case. As an illustration of the privileges which can hardly ever (in fact never) be claimed by the Indian Houses, their Lordships referred to the right of the Commons to petition, counsel or remonstrate with their sovereign through their chosen representatives and to have a favourable construction placed on his words, though this has been regarded as one of their fundamental privileges. Another illustration of such privileges peculiar to the Commons which no House in India is ever expected to claim (to which reference was made by the Supreme Court) is the privilege to pass acts of attainder and impeachments. It was in that context that the Supreme Court gave the third illustration of the privilege of the Commons in regard to its own constitution (the right to constitute itself) which cannot be claimed by the Indian Legislatures. All these illustrations are merely different species of one single category of privileges or powers, namely those which no House would ever either require to claim or can have any occasion to claim. The crucial test to determine whether a particular privilege falls in the exceptional category or not would, in my opinion, be that if a House were to claim a particular privilege, which cannot possibly be made applicable to any available set of facts or circumstances, it would fall in the category of the exceptions to the rule enunciated in Clause (3) of Article 194; but if there is neither any bar of impossibility nor any express or implied prohibition in the Constitution to the exercise of the particular privilege or power, it would certainly be available to the Indian Legislatures on account of the unequivocal language adopted in Article 194(3). No Indian House can ever claim a right to deal with the sovereign as sovereignty in our country resides in the people and we have no individual sovereign as there exists one in England. Nor can ever a question of having a favourable construction placed on the words of the sovereign arise in India. Same applies to passing of an Act of attainder or impeachment of the King. The Indian Houses of Legislature are constituted in accordance with the procedure prescribed in the Constitution and the relevant laws made thereunder. No Indian Legislature can, therefore, claim to constitute itself instead of being allowed to be constituted by and in accordance with the machinery prescribed by the Constitution and the statutory laws. Another exception which can be carved out of the field covered by the general sweep of Article 194(3) is of any possible privilege or power which may be claimed or exercised by the Commons, but would, if allowed to be claimed or exercised by a State Legislature in India, contravene any express provision of the Constitution. An illustration of this exception lies in Article 211 of the Constitution. That Article provides in categorical "terms that no discussion shall take place 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. If any member of a State Legislature were to take into his head to claim that Article 211 infringes the absolute freedom of speech guaranteed to members of a State Legislature by Clause (1) of Article 194, he would be fore getting and ignoring-the non obstante clause "subject to the provisions of this Constitution" with which Clause (1) of Article 194 begins. 78. There neither is nor can ever be any dispute about the fact that the kind of privileges excluded from the enforceable sweep of Clause (3) of Article 194 referred to by the Supreme Court in the U.P. Legislature ease cannot possibly be claimed by any Indian Legislature. A somewhat intriguing question, however, arises about the mental process by which decision has to be given about the availability of a particular power or privilege to an Indian Legislature in case of dispute about the same falling or not falling within the exceptions to the rule. One way of looking at it is that as soon as a power or privilege is claimed by the Legislature and someone disputes the existence or availability thereof, the Court should decide the same and then read or not read that particular power or privilege into Article 194(3) in accordance with the decision at which the Court arrives as a result of the scrutiny on the crucial point. The alternative method is to read every power or privilege as being available to the State Legislatures in India which was available to the Commons in January, 1950, and then not to allow the House to claim or exercise the disputed privilege or power if it is found to be incompatible with the uncontrovertible situation in India or is found to be barred by some provision in the Constitution. At the first sight there appears to be no difference between the two rival approaches suggested by the parties. In either case it is only a mental process by which the decision has to be arrived at. On a closer or deeper scrutiny it appears that there is a marked difference in the effect of the two different approaches. To exclude a thing from a field which) was never included in it is an exercise in futility. An exception can be cut out of something in which it would be included but for being excepted. If in spite of the clear language of Article 194(3) we were to say that "all" therein does not mean ''all'' but only ''some'', it would amount to amending the express provision of Article 194(3) and holding that though the Constitution says that in other respects (other than the freedom of speech) the powers, privileges and immunities of a State Legislature shall be those of the Commons at the relevant time, a proviso should be read into Clause (3) of Article 194 to the following effect: Provided that no power, privilege or immunity enjoyed by the House of Commons or the Parliament of the United Kingdom and its Members and Committees at the commencement of the Constitution shall be available to the Legislature of a State, and to the Members and Committees of the House of such Legislatures (till such time, etc.), as are not compatible with the Indian conditions or are not consistent with any other express provision in the Constitution.
I think we cannot read into the Constitution what is not there, and, therefore, whenever it is found that the Commons did enjoy a particular privilege, power or immunity at the relevant time, it must be deemed to have been written with pen and ink in Clause (3) of Article 194, and it is only when a dispute arises whether in the nature of things the particular privilege or power can actually be expressed, claimed or enjoyed that the Court will scrutinise the matter and without deleting the same from the list hold that notwithstanding the power or privilege being there it cannot be exercised, either because it is humanly impossible to do so or because the extension of the privilege of the Commons would contravene some express or special provision of the Constitution. I regret my inability to agree with the approach suggested by Bhagwati, C.J., in the case of Chhdbildas Mehta (supra) (20). That approach appears to me to be inconsistent with the manner in which their Lordships of the Supreme Court approach-ed the subject in the U.P. Legislature case. It is not for the Court to add to or substract from the solemn provisions of a Constitution for the purpose of achieving a particular result howsoever laudable it may appear to the Court to be. That necessarily is the function of the Parliament in the exercise of its power to amend the Constitution. The Court must read into Article 194(3) all the powers, privileges and immunities which were enjoyed by the House of Commons of the Parliament of the United Kingdom and its Members and Committees at the commencement of the Constitution. As already illustrated some of those privileges or powers will remain in the list only for academic purposes and would never be claimed. Nevertheless we have no power to physically erase them. If, however, a dispute arises as regards the existence or extent of any particular power, it will have to be decided by the Court. 79. For the foregoing reasons I hold that all the powers, privileges and immunities enjoyed by the Commons at the relevant time are available to the Haryana State Legislature, but the following out of those cannot be claimed or exercised by it: (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. Point (b). 80. The main ground on which the Petitioner has vehemently contended that the power or privilege to expel any member for contempt vests in the Commons not as a part of its disciplinary jurisdiction or corrective remedy or to get rid of a person who is considered by the House to be unfit to remain a member thereof, but merely and solely as an incident of the privilege of the House of Commons to constitute itself is that admittedly the power of the House of Commons to constitute itself cannot and is not available to the Indian Legislatures, and if the power to expel does not resides in the Commons independent of the power to constitute itself, it would naturally not be available to the Indian Legislatures. That argument has stemmed from and is based on the following passage (paragraph 45 of the A.I.R. report) from the opinion delivered by the Supreme Court in the U.P. Legislature case: 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 (the U.P. Legislative Assembly). 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.
Basing myself on the opinion of the Supreme Court in the U.P. Legislature case, and even independently thereof, I have already held on point (a) above that the privilege of the Commons in regard to its own constitution is. not available to the Indian Legislatures. On that there neither is nor there be any dispute between the parties. The only controversy in this regard has raged around the issue whether the privilege in regard to its own constitution is expressed by the Commons only in the three ways mentioned by the Supreme Court (reproduced above) or the three ways enumerated by their Lordships are merely illustrative of the various other ways in which the Commons might have expressed, claimed or enjoyed the said privilege. The contention of the learned Advocate-General has been that though in giving illustrations of the powers and privileges of the Commons which in the nature of things cannot be claimed or enjoyed by the Indian Legislatures, the Supreme Court did not give an exhaustive list of such powers and privileges, but so far as the manner of expression of the privilege to constitute itself is concerned, the three ways mentioned by the Supreme Court are exhaustive and are not merely illustrative. On the other hand the Petitioner originally canvassed the proposition that the privilege of the Commons in regard to its own constitution is expressed in various ways out of which only three have been mentioned by the Supreme Court. In his reply to the Respondents'' argument the Petitioner has, however, said that in ultimate analysis the power to constitute itself is expressed by the Commons only in the three ways mentioned in May (quoted below) and the fourth way mentioned by Anson is a mere extension of the three ways and is really a part thereof and not independent of the same. 81. May states in this respect [extracted from Page 108 of the 18th (1971) edition] It is a privilege of the House of Commons to provide for its own proper constitution as established by law. The 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. There is no doubt that the Supreme Court has been based its relevant observations in paragraph'' 45 of its opinion on the above-quoted passage from May. The language of the passage in May as well as in the opinion expressed by the Supreme Court in the U.P. Legislature case does not in my opinion lead to any definite conclusion one way or the other whether the privilege to provide for its own constitution is expressed by the Commons only in the three ways referred to above or possibly in any other manner also. On several occasions during his arguments the Petitioner sought to draw support for his proposition about there being a distinct fourth way of expression of the said privilege by the Commons from the following passage in the Law and Custom of the Constitution by Anson, Volume 1 1909 146, corresponding to page 153 of the-1922 Edition.-- But there are other privileges not specifically mentioned on this occasion though regularly asserted and enforced by the House. These are the right to provide for the due constitution of its own body, the right to regulate its own proceedings, and the right to enforce its privilege by fine or imprisonment or in the case of its own Members by expulsion.
The Petitioner originally wanted to construe the above passage to suggest that the right of the House of Commons to expel its own Members in order to enforce its privileges is one of the manners in which the right to provide for its own constitution is expressed. The Petitioner himself has not ultimately stuck to that position. The ultimate position taken up by the Petitioner was that expulsion is one of the manners in which the Commons determine the disqualifications of a member inasmuch as it comes to a conclusion that he is not fit to sit in the House, and, therefore, expels him. From this point of view, contended the Petitioner, the power of expulsion is exercised by the Commons for the purpose of determining the qualification or disqualifications of its members in cases of doubt. So construed, argued the Petitioner, it may even be held that the privilege in question is expressed by the Parliament in three ways. He however, submitted that if expulsion cannot be brought within the purview of "determining the qualifications of its members in cases of doubt", then it must be held that expulsion is a distinct fourth way in which the Commons expresses its privilege to provide for its own constitution. Anson at page 146, of Volume I in the paragraph that just precedes the one that is already quoted states: Next we come to the privileges themselves. Of these, some are specifically asserted and demanded of the Crown at the commencement of every parliament. (Then those privileges which are specifically asserted and demanded are enumerated).
Thereafter the author goes on to deal with the "Privileges not demanded". It is under that heading that a mention has been made of several privileges which are not specifically demanded of the Crown at the commencement of every parliament. The three privileges referred to under that heading are (i) the right to provide for the due constitution of its own body, (ii) the right to regulate its own proceedings, and (iii) the right to expel its members in order to enforce its privileges. In this passage Anson is referring to three distinct privileges. The right to enforce its privileges either by imposition of fine or by commitment to prison (both of which punishments can be awarded both to the members of the House and to outsiders) or by expulsion (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 privilege against a member by expelling him for breach of such privilege is not a way of expressing the power of the Commons to constitute itself. So far as the details of the privilege of the right to constitute itself are concerned, the same have been mentioned by Anson under a separate heading at page 167 of the 1909 Edition. He states there under the heading "Right to provide for its proper Constitution" as below: One of these privileges is the right to provide for the proper constitution of the body of which it consists by issue of writs when vacancies occur during the existence of a parliament, by enforcing disqualification for sitting in parliament, and until 1868 by determining disputed elections.
Expulsion is not at all mentioned in that context. Though expulsion could no doubt be resorted to and may indeed have been resorted to by the Commons with a view to preserve or change its constitution, it would not exclude or impinge upon the independent privilege of the Commons to punish a member for breach of privilege or for contempt by expelling him from the House. The Petitioner also referred to page 172 of Anson (Fourth Edition) where it has been stated under the heading--"unfitness to serve and cause of expulsion"--that "cases may arise in which a member of the House without having incurred any disqualification recognised by law has so conducted himself as to be an unfit member of a Legislative Assembly. For example conviction for misdemeanour is not a disqualification by law though it may be disqualification in fact and the House of Commons is then compelled to rid itself of such a member by process of expulsion. But expulsion, although it vacates the seat of the expelled member, does not create a disqualification and even if the constituency does not agree with the House as to the unfitness of the member expelled, they can re-elect him." From this passage the Petitioner wants to infer that when expulsion is resorted to by the Commons to rid itself of a member who may be fully qualified but is found to be unfit to continue as a member of the House, it is so done in exercise of the privilege of the Commons to constitute itself. The Petitioner has stressed that such action can only be taken on a member having been convicted for misdemeanour. In so doing the Petitioner, however, unfortunately loses sight of the words "for instance" which precede the particular illustration of exercise of power of expulsion by the Commons in Anson. A plain reading of the passage leaves no doubt that it by no means excludes the power of the Commons to get rid of a member who is considered to be unfit to continue to be its member on any ground other than of conviction for misdemeanour. The Petitioner also appears to lose sight of the fact that the power of inflicting punishment for breach of privilege has been separately dealt with even by Anson (at page 177 onwards of the Fourth Edition). The punishments which are awarded to members or non-members are dealt with by Anson under separate headings such as "admonition", "reprimand", "contempt", "fine", and "expulsion". The discussion under the last mentioned item in Anson starts with the following passage: In the case of its own members the House has a stronger mode of expressing its displeasure. It can by resolution expel a member...
Great emphasis has been laid by the Petitioner on the opening lines of the next passage at page 178 of Anson. There it is stated: But expulsion is a matter which concerns the House itself and its composition and amounts to no more than an expression of opinion that the person expelled is unfit to be a member of the House of Commons.
It fail to understand how the Petitioner claims to draw any strength from the above sentence. Of course expulsion concerns the House itself as the punishment of expulsion cannot be inflicted on a person who is not a member of the House, and the composition of the House may be affected by the expulsion of a member. That does not, however, mean that the reverse of the proposition is also necessarily correct, that is, the power of expulsion is exercised only with a view to regulate the composition of the House. 82. The above discussion reveals that the privilege of the Commons to constitute itself is expressed in the three ways mentioned by May and reproduced by the Supreme Court in the U.P. Legislature case, and one of the ways in which the said privilege may be expressed may no doubt in certain circumstances be exercised by expelling a member of the House. That does not, however, rule out the existence and exercise of the privilege of expelling a member by way of punishment for misconduct or contempt of the House. I would, therefore, hold that even if the power to constitute itself can be expressed by the Commons in any number of other ways including resorting to expulsion of its members, it would make no material difference as the existence of one ground on which expulsion can be ordered by the Commons cannot by itself exclude or abrogate the independent power of the House to punish a member by expelling him--a punishment which cannot be inflicted on a non-member. Point (c): 83. Though at the commencement of his original arguments the Petitioner had submitted that the Commons did not have the power to expel a member at all, he ultimately conceded in the course of arguments that the Commons did have the power to expel a member, but hedged in his submission by saying that the power of expulsion is resorted to by the House either in exercise of its privilege to constitute itself [which has already been dealt with by me under point (b)] or for contempt of the House committed within its four walls, and further added that even such power of the Commons to expel a member is subject to certain additional limitations. 84. The study of all the cases hereinafter referred to reveals that the House of Commons has been expelling its members either (i) because it became necessary in connection with the composition or constitution of the House, or (ii) because the member was found guilty of having committed contempt of any of its members or of the House and it was found necessary to inflict on him the punishment of expulsion, or (iii) because the House wanted to get rid of the member or in the opinion of the House he was unfit to continue as such. We are directly concerned with category (ii) though instances falling under category (iii) would also be relevant, from certain points of view. It appears appropriate to make a mention of some of the cases in which the House of Commons initiated privilege proceedings against members for contempt alleged to have been committed by them outside the House, including those cases in which the penalty of expulsion was not inflicted and either some lesser penalty was imposed or the more serious punishment of imprisonment was awarded. I proceed to notice those cases in chronological order. 85. The earliest is Hall''s case, A complaint was made on February 4, 1580, that Mr. Hall, a member of the Commons, had written a book "not only as reproaching some particular good members of the House, but also very much slanderous and derogatory to the general authority, power and state of this House, and prejudicial to the validity of its proceedings... charging the House) with Drunkeness, as accompanied in their counsels by Bacchus". In pursuance of a resolution of the Commons, Hall was apprehended and was brought to the Bar of the House and the Privileges Committee was asked to examine the case. When Hall appeared at the Bar of the House he tendered apology. Thereupon it was resolved that Hall be committed to the Tower of London for six months, fined 500 marks and "severed and cut off from being a Member of the House any more during the continuance of this present Parliament" [C.J. (1547--1628) 122, 125, 126 : (D''Ewes 291).]. 86. Hall''s case establishes two things, namely (a) that action for contempt against a member for publishing a book outside the House casting aspersions on Members of the House was taken by the Commons even as long ago as in 1580 A.D., and (b) that in spite of his tendering an apology, the Member was not only expelled from the current session of the Parliament but was also awarded six month''s imprisonment and fine. 87. The next case in order of time is of Asgill (1707 AD.) who was a Member of the Parliament. He admitted (before a Committee appointed to examine the matter) that he had published a book containing many profane and blasphemous expressions highly reflecting on the Christian Religion. The House of Commons resolved that Asgile be expelled from the House. Nothing contained in the book cast any aspersions on the House of Commons or any of its Members, He was expelled as being "unfitted for membership" by virtue of his activities as he had admitted himself to be the author of the objectionable book. The expulsion was ordered in exercise of the power of the House of Commons to exclude any Member not found fit to continue as such. This case can be covered by category (i) as well as category (ii) referred to by me. The only relevant thing which Asgill''s case establishes is that the House of Commons has been expelling Members for their actions outside the House not resulting in conviction by any Court. 88. The next case relates to a complaint made on December 10,, 1819, against Hobhouse, a Member of the Commons, for having written a pamphlet in which it was suggested that "nothing but brute force, or the pressing fear of it would reform Parliament". Originally proceedings were taken by the House against the publisher who attended at the Bar and declared that Hobhouse was the author of the pamphlet. Thereupon proceedings were taken against Hobhouse who was adjudged guilty of breach of privilege and committed to Newgate Prison. This case again establishes two things,, namely (a) that the House of Commons has been taking contempt proceedings against Members for publishing objectionable material outside the House; and (b) that punishment severer than that of expulsion, i.e., of imprisonment was awarded by the Commons against its Member for having committed contempt of the House. 89. A complaint was made against Mr. O''Connell on February-26, 1838, for having made a speech which was reported in two newspapers wherein he was charged with having asserted that there was "foul perjury in the Tory Committees of the House of Commons--who took oaths according to Justice and voted for Party." O''Connell was found guilty and it was resolved that he be reprimanded in his place by the Speaker. This is again an instance of action having been taken against a Member for objectionable speech delivered by him outside the House and punishment having been inflicted against him. 90. Mr. Sullivan''s complaint against Mr. Lopes, Member of Parliament, relates to the year 1875. Mr. Lopes was reported in "The Times" as having referred to the Liberal Party as allied to a "disreputable Irish band." Lopes stated that he had never intended to be personally disrespectful to the Irish Members, but complainant Sullivan moved the House to resolve that the language contained in his speech amounted to breach of privilege of the House. During the ensuing debate in the Commons, Disraeli said that he did not deny-that it is a breach of privilege to speak of any Members of the House in their capacity as such in terms which imply disgrace or ignominy, but pointed out that the expressions used, though they may certainly justify notice, are still not of a very extravagant character. He, however, invited Mr. Lopes to apologise for causing pain. Disraeli ended his address by saying that if Mr. Lopes did apologise, it would be possible "to extricate the House from the painful necessity of making this a question of Privilege". Lopes did apologise and the motion was withdrawn. This is again an instance of action having been initiated and taken against a Member for having delivered an objectionable speech outside the House though the House of Commons refrained from "the painful necessity of making this a question of Privilege" on account of the apology tendered by Lopes. The report of the proceedings [Parliamentary Debates 1875 222 CC 269-70, 313--35 indicates that had Lopes not apologized, the Commons would have taken up the matter as a question of Privilege and would then have proceeded with the same to its logical end. 91. The Times case of 1887 has been repeatedly relied upon by the Petitioner [Parliamentary Debates 1887 311 c. 286. With reference to an allegation in "The Times", that "certain Members draw at once their living and their notoriety from the steady perpetration of crimes for which civilisation demands the gallows", Mr. Speaker of the Commons made the following ruling on February 22, 1887: The Rule is that, when imputations are made, in order to raise a case of privilege the imputations must refer to the action of Hon''ble Members in the discharge of their duties in the actual transaction of the Business of the House.
No prima facie case of breach of privilege was, however, established and the rule issued against The Times was discharged. It has been repeatedly observed in the course of evidence given by the clerk of the House of Commons in various privilege cases that The Times case is no authority for holding that a Member committing contempt of the House outside the House is not answerable to the charge of breach of privilege of the House or for committing contempt thereof. It was on the facts of the case that the Privileges Committee of the Commons had found in The Times case that no contempt of the House had been committed. 92. In the proceedings of the Committee of Privileges in the case against Quintin Hogg (hereinafter referred to as the Quintin Hogg case), a reference is made to The Times case at various places. In Appendix 2 at page 41 of the official report, it has been observed as below in the memorandum of the Clerk of the House submitted to-the Committee: The Committee may also wish to remember that the right to punish for contempt is by no means restricted to the case where some actual privilege has been infringed. The two matters are distinct, and it has long been recognised that the publication of imputations reflecting on the dignity of the House or of any Member in his capacity as such is punishable as a contempt of Parliament. It is true that the imputation upon a Member to come within this principle must relate to something which he has done as such, that is to say, incidentally to and as part of his service to Parliament. Thus in an extreme case concerning "The Times" in 1887, an allegation that certain Members ''draw their living... from the steady perpetration of crimes for which civilisation demands the gallows'' was held not to constitute a contempt in that it did not refer to the action of the Members concerned in the discharge of their duties as such. Reflections upon Members, however, even where individuals are not named, may be so framed as to bring into disrepute the body to which they belong, and such reflections have, therefore, been, treated as equivalent to reflections on the House itself. It is for the Committee to decide whether to advise the House that any particular publication constitutes such an affront to the dignity of the House or its Members in that capacity as amounts to a contempt of Parliament.
The Times case does not at all advance the cause of the Petitioner in the matter of non-liability of Members to punishment for contempt committed outside the House. The ratio of the case is that the imputation upon a Member of the House which is claimed to amount to breach of privilege or contempt of the House must relate to something which the Member has done in his capacity as Member incidentally to or as part of the services to the Parliament. The allegation made by the Petitioner in the pamphlets P. 1 and P. 2 issued by him mainly relate to the conduct of the Members in their capacity as such, and The Times case is, therefore, of no avail to the Petitioner. Two other things which stem out of The Times case and go against the Petitioner are that: (i) the publication of imputations reflecting upon the dignity of any Member are treated at par with imputations against the House and reflections upon Members even where the individuals are not named may be so framed as to bring into disrepute the House to which they belong; and (ii) it is for the Privileges Committee to decide whether to advise the House that any particular publication constitutes such an affront to the dignity of the House or its Members as may amount to contempt of the House. 93. The Globe Newspaper''s case of 1901 is also an authority against the proposition canvassed by the Petitioner that the Parliament cannot take action for contempt of the House committed outside the House, though this case does not relate to a Member of the House. That distinction cannot, however, help the Petitioner, but can only go against him. If action can be taken for contempt by the Commons against a non-Member, there is no reason why it cannot be taken against a Member for the same wrong done by him in a similar situation. In fact it appears that a Member''s liability for breach of privilege of the House by castigating it or bringing it into disrepute is greater than that of a non-Member. What had happened in the case was that on August 15, 1901, a complaint was made of an article which had appeared in The Globe newspaper, defining Irish Members as ''rowdies'' and abusing them generally of wholesale political corruption. The House of Commons resolved that this was a breach of privilege and the Editor and Publisher of the Globe were summoned to appear at the Bar of the House on the next day. On appearing at the Bar, the editor and publisher made a full apology and complete withdrawal of the substance of the article, and were still reprimanded by the Speaker CJ 1901 414, 418. The Globe''s case shows that the House of Commons had resolved that any person (even an outsider) accusing some Members of the House of Political corruption outside the House amounted to breach of privilege of the House. The fact that only minor punishment of reprimand was. awarded by the Speaker in view of the full apology tendered by the Editor and Publisher of the newspaper does not make any difference to the relevant ratio of the case. 94. Starting with the 1901 Globe''s case (just referred to), the next case of the current century which has been brought to our notice is Dr. Salter''s case. On October 25, 1926, a complaint was made of a speech by Dr. Salter, reported in the "Daily Express" in which he said, "I have seen many Members drunk in the House of Commons, and I am sorry to say that no party is exempt." It was resolved that the speech was a gross libel on the Members of the House and a gross breach of privilege. No penalty was, however, imposed on the Member though he had refused to withdraw the substance of the allegations. Imposition of penalty is a matter lying within the exclusive jurisdiction of the House and the mere infliction of a minor punishment or not to inflict any punishment at all does not in any manner impinge on the proposition that the House of Commons has throughout been treating libel of the Members of the House as a gross breach of privilege even when the speech or article was delivered or published outside the House. 95. Similarly in the case of the "Daily Mail" newspaper CJ 1926 95, 99 notice was taken by the Commons of an article published in the Daily Mail newspaper which imputed financial motives to certain unnamed Members of the House in opposing a particular bill. The Privileges Committee reported that the language used in the article could reasonably be understood as conveying a charge of improper motives and conduct in respect of their parliamentary action against Members of the House and so constituted a breach of privilege of the House. In view, however, of the prompt disclaimer of that meaning in the Daily Mail of the following day, and the repeated disclaimer by the Editor in the House and the assurance given by the Editor to the Committee and his unqualified regret for having used language which was capable of the impugned construction, the House did not take any further action in the matter. 96. On July 28, 1930, a complaint was made that Mr. Sandham in a speech reported in the ''Manchester Guardian'' had alleged that Labour Members can receive bribes to help poss doubtful bills in the interests of private individuals. He was further alleged to have observed in his speech that the Members of the House could get stupidly drunk, but none of those things was against the sacred traditions of the House, but were in fact in keeping with them. He was also alleged to have said in his speech that Labour Members had accepted money from money-lenders and other interests, and got drunk in the House, etc. Action for breach of privilege was taken against Sandham, but he was merely admonished [Parliamentary Debates, CJ 1929 477. 489, 503]. 97. Allighan''s case to which I am now going to refer is almost on all fours with the one before us so far as the exercise of the privilege and power of the House of Commons to expel its Members for committing contempt of the House committed outside the House is concerned. The Advocate-General has strongly relied on this case particularly because it is very recent and leaves no doubt about the fact that the power of expulsion was being exercised by the House of Commons as recently as in 1947 against Members found guilty of committing contempt of other Members of the House. What happened in the case was that on April 16, 1947, a complaint was made to the House of Commons that an article, containing references to the Members of the House which were derogatory to their honour, written by Mr. Garry Allighan, a Member of the House, was published in the issue of April 3, 1947, of the ''World''s Press News'' of which Mr. Arthur Heighway was the Editor and Publisher, and it was claimed that this amounted to a breach of privilege of the House. The matter was referred to the Committee of the House. The report of the Privileges'' Committee was taken into consideration by the House on October 30, 1947. Arthur Heighway, the Editor and Publisher of the newspaper in question, was first brought to the Bar of the House. When Heighway was apprised of the findings of the Committee, he offered his sincere apology and added that since the article had come to him from a Member of Parliament, who was a professional journalist, he had wrongly allowed his guard to be lowered in respect of factors which he should have considered. He however, said that for that he made no excuse and admitted that the fault was entirely his. He claimed to have accepted the article in good faith as a matter of interest to the specialised and restricted readership of his paper and without any thought that it would be an affront to the Members of the House. As to the contents of the objectionable portion of the article Heighway said that he had not appreciated at the time of publishing it that the same could be interpreted as an affront to the dignity of the House, and it was not his intention at any time to do so. With all those explanations he tendered his regret, and sincere and humble apology to the Speaker and the Members of the House. Thereupon Allighan was heard. He claimed that he had not sat down, and deliberately and calculatedly decided to insult the House and malign its Members, and that this being his intention, he had expressed his deepest regrets at the earliest opportunity of having written the offending and offensive article and tendered his humble and sincere apology for writing in such a way as to be an affront to the House. He offered no excuse for what he did, and said that he was at a complete loss to understand why he ever wrote such an article as could not have done him any good, and from which he could derive no advantage whatever. The only extenuating circumstance pleaded by him was that the article was written during the period of intense mental strain when he was undergoing treatment for'' a serious nervous disorder. He offered particular regrets for having publicised unfounded imputations against the integrity of Members, and apologised for the allegation of insobriety which he made against some unnamed Members. Thereafter in a long speech he tried to explain his difficulties, referred to his clean and clear past as a professional journalist and laid emphasis on the fact that he had neither received any payment nor had been offered any bribe for writing the article, and that he had written it merely in his capacity as a professional journalist. Emphasis was laid by him on denial of receipt of any money as the additional charge against him was that he had written the article on being bribed to do so. That is why he said: while T humbly submit myself to the decision of the House, I do ask Members to absolve me from the charge of bribery, and to accept my expression of regret for having departed from the high standards of parliamentary conduct in reporting information which I was expected to treat as secret. I cannot undo what is done nor can my apology sufficiently atone for my error of judgment in writing the offending article but I can as an earnest of my sincerity ensure that I never repeat the offence I have humbly acknowledged my mistake, and nothing could be more sincere and heart-felt than my remorse for my action. Having done all that it is humanly possible to do to put this deeply regretted affair straight, 1 am content to submit myself to this House, confident that it will act in its traditional spirit of justice and generosity. After the close of Allighan''s speech, following two resolutions were moved by Mr. Herbert Morrison: Resolved, that the article written by Mr. Allighan, and published in the ''World''s Press News'' of 3rd April, 1947, in its general tone, and particularly by its unfounded imputations against unnamed Members of insobriety in the precincts of this House, is an affront to this House; and that both Mr. Allighan, as the writer of the article, and Arthur Heighway, the editor and publisher of the ''Worlds''s Press News'', are guilty of a gross contempt of this House. Resolved, that Mr. Allighan, in persistently misleading the Committee of privileges in his evidence, and in seeking to cast suspicion on others in respect of the very matter of which he knew himself to be guilty, has committed a grave contempt of this House in disregard of the resolution of this House of the 12th day of November, 1946, that if it shall appear that any person hath given false evidence in any case before this House, or any Committee thereof, this House will proceed with the utmost severity against such offender. A motion was then moved that Allighan was guilty of dishonourable conduct which deserved to be severely punished as tending to destroy mutual confidence amongst Members and, to lower the House in the estimation of the people, as he had corruptly accepted payment for the disclosure of information about matters to be proceeded with in parliament, which he had obtained from other Members under the obligation of secrecy. A debate ensued on the motion and a second motion was made by Herbert Morrison that Allighan be suspended from the service of the House for six months and his salary as a Member of the House be suspended for that period. An amendment of the above motion was then proposed by Mr. Hogg for omitting the words relating to Allighan''s suspension etc. from the House for six months and for adding to the original motion the words to the effect that Allighan be expelled from the House. The question being put to the House, the amended resolution was passed and it was resolved that Allighan be expelled from the House for his gross contempt of the House and for his misconduct. Mr. Arthur Heighway was also found guilty and was reprimanded H.C. 138 1946-47. 98. Allighan''s case clearly, establishes that the Commons did have and did in fact exercise the power and privilege to expel a Member of the House for any action which the House may consider to be a misconduct, even though the alleged misconduct had been committed by the member by writing an article and getting it published in a newspaper--actions which took place entirely outside the House. This case furnishes an unrivalled precedent for the existence of the power in question and the exercise of that privilege by the Commons at the time of coming into force of our Constitution on almost similar facts. 99. Brogan''s case of 1948 is an instance of action having been initiated against a Member for having committed contempt of the House outside the House, though the House decided (for reasons hereinafter stated) not to proceed further with the matter. This situation arose out of a complaint made on March 8, 1948, of a report in the ''Daily Mail'' newspaper of a broadcast by Brogan and a subsequent interview between Brogan and Daily Mail reporter wherein Brogan was reported to have said that secret sessions of Parliament were useless as he knew that advance information would be given o the Russians and that there 29 secret supporters of the Communist Party in the Parliament. The Committee of privileges interpreted the above-mentioned remarks as indicating an apprehension that in the event of future crisis, 29 Members of Parliament would reveal themselves, traitorously as Members of the Communist Party. The Committee did not answer the question whether Brogan''s action constituted contempt of the House or not on the ground that prolonged investigation by the Committee would "merely give added publicity to statements which had only been made in the hope that their very sensationalism would attract to their author a public attention which he was otherwise quite unable to command", and the Committee considered that it was not consistent with the dignity of the House that penal proceedings for breach of privilege should be taken in the case of every defamatory statement which strictly may constitute a contempt of the parliament. 100. Quintin Hogg''s case on the proceedings of the Privileges Committee (on which reliance has been placed by the Petitioner for various propositions from time to time) may now be referred to. This is a post-Constitution case, but references have been made in the course of evidence given before the Committee of Privileges of the House of Commons to various precedents and to the views of the Clerk of the Commons and the Attorney-General expressed in answer to various questions put to them. On March 19, 1964 Quintin Hogg made a speech in a public meeting at the Town Hall, the objectionable extract from which is quoted in Appendix 1 to the minutes of evidence taken before the Committee of Privileges, from March 23, 1964, onwards. On March 23, 1964, Wigg, another Member of the House, complained that certain passages in the said speech of Quintin Hogg reflected on the conduct of the Members of the House. He submitted that the particular objectionable passage in the speech meant that some Members of the Parliamentary Labour Party "were engaged in subversive activities", and that, therefore, Quintin Hogg who was at that time Lord President of the Council, had committed a contempt of the House. The matter Was referred by the Commons on March 24, 1964, to the Committee of Privileges. In its report dated June 16, 1964, the Committee observed that it had long been recognised that the publication of any such contempt (outside the House) was punishable by the House. The Committee further reported "it is an established principle that reflections upon Members, whether the particular individuals are indicate or not, can in some circumstances be equivalent to reflections on the House itself. The'' Clerk of the House referred the Committee to a line of cases in which the House had considered treating imputations upon Members or some one or more of them as a contempt of the House itself." Since, however, the privileges Committee found on merits of the case that the particular speech of Quintin Hogg did not constitute contempt of the House, the Committee recommended that no further action should be taken in the matter. This again is an instance to show that the Commons took cognisance of a speech delivered by a Member outside the House with a view to find out if anything said by the Member outside the House amounted to contempt of the House or not, and if so, to punish the Member. Since on various occasions during his arguments the Petitioner tried to bring out a distinction between cases in which libellous or objectionable statements were made against named members on the one hand, and unnamed members of the House on the other, and submitted that it amounts to contempt of the House only if the members are not named but it does not amount to contempt of the House if the names of the members are mentioned in the objectionable speech or writing. It appears to be appropriate to point out that Quintin Hogg''s case is a clear precedent and authority for holding that this distinction is without substance and has no relevance at all. 101. The last English case involving expulsion of a member, to which our attention has been invited is of Peter Arthur David Baker. He was a member of the House of Commons. He had been indicted in the Central Criminal Court of the City of London on several counts of having uttered forged documents knowing them to be forged. He pleaded guilty on some of those counts and was sentenced by the Court on the plea of guilty to seven years'' imprisonment. The factum of the indictment and of the conviction and sentence imposed on Baker was communicated by the Court to the Speaker of the House of Commons in the Court''s letter dated November 30, 1954. On coming to know of the same, Baker himself wrote his letter dated December 2, 1954, to the Speaker of the House. The respectable manner in which Baker expressed remorse about his conduct which was not connected with any action of his in his capacity as member of the House, can best be appreciated by reading Baker''s letter which is reproduced below: Dr. Mr. Speaker, By the kind dispensation of the Governor I am at last able to write you this short letter, in order to offer my most humble apologies: To you, and through you, to the Prime Minister of the House of Commons for the trouble I have caused you, and any discredit I have inadvertently brought upon the House, over the past months. As you know, proceedings commenced while I was recovering from my illness and I discovered, to my dismay that I was unable to vacate my seat in any way while the matter was Sub Judice''. I hastened the proceedings as far as was possible and refused to appeal, so that you can now dispossess me of my seat without delay. I must end as I began, by begging the House to accept my most sincere apologise. I can only assure you that my regret, remorse and repentance during the past three months were doubled by the knowledge that, in addition to my friends and colleagues elsewhere. I had also embarassed my friends and colleagues in the House of Commons. I can only ask you and, through you, them to accept this expression of these regrets. I cannot ask for your forgiveness. I dare to hope for your pity and your prayers. I hope too, that you will receive with compassion and some measure of understanding this letter to testify to my sorrow that I should have involved in my own personal misfortures the House of Commons of which I was so proud and honoured to be a member. I am, Mr. Speaker, Your humble and obedient
servant,
Peter Baker. 102. Mr. Speaker acquainted the House that he had received the above-quoted letter from Baker and the letter was read out to the House. Thereupon, the letter received by Mr. Speaker from the Court, the record of the proceedings and the letter of Baker were taken into consideration. On such consideration, the following resolution was passed: Resolved, that Mr. Peter Arther David Baker be expelled from this House.
Baker''s case, though a post-Constitution case again, does establish, in the light of the admitted fact, that the Commons does not claim any new privileges but sticks to only old traditional ones, and that the Commons has been expelling its members for objectionable conduct outside the House committed by a Member in matters not relating to the House and not necessarily in his capacity as a member of the House. A copy of the proceedings from the Journal of the House of Commons (From November 30, 1954 to May 6, 1955) 154 4 EIz-2 210, has been placed on the record of this case by the learned Advocate-General. 103. The series of cases referred to above (amongst others which have not been noticed) clearly establish that at least from 1580 to 1964 A.D. (including Allighan''s case of 1947), the Commons have consistently been taking up contempt proceedings against Members (and even outsiders) for objectionable speeches or articles made or published by them outside the House in relation to the conduct of members of the House whether named or un-named which have been treated as contempt of the House itself. The above-quoted cases further establish that the Commons continued to claim and exercise its power and privilege of expulsion against its Members right up to the time of the) commencement of the Constitution and even thereafter. In view of this situation, I have no hesitation in holding that the House of Commons did have at the commencement of the Constitution the power and privilege to expel a Member for misconduct or breach of privilege committed by him outside the House. Point (d). 104. Having answered point (c) in the affirmative, I now pass on to discuss the question whether the privilege or power enjoyed and exercised by the Commons to expel a member for committing contempt of the House or for committing breach of privilege is merely an expression of the authority of the House to constitute itself or partakes of the nature of proceedings for punishment for misconduct. 105. The Petitioner took quite some time to refer to the various provisions in the Constitution to show that specific procedure has been laid down for constituting the Indian Houses of Legislature and that the qualifications and disqualifications of members of such Houses are also laid down either in the Constitution itself or in the Representation of the People Act, and are not left to be determined, changed or varied by the State Legislatures. The composition of the Legislative Assemblies is laid down in Article 170 (read with Article 333) of the Constitution. The number of the members of each State Legislature has to be worked out in accordance with the detailed provisions contained in Article 170 subject to the minimum and maximum number thereof prescribed therein. Duration of the State Legislature is laid down in Article 172. The qualifications of members of State Legislatures are given in Article 173. Particulars relating to summoning the House or proroging it and even for dissolving it by the Governor are mentioned in Article 174. The election of the Speaker and Deputy Speaker and provisions relating to the vacation, resignation and removal from the office of the Speaker and Deputy Speaker are provided in Articles 178 and 179. Clause (1) of Article 190 states that no person shall be member of both Houses, of the State Legislature. Clause (3) of that Article declares that the seat of a member shall become vacant if he becomes subject to any of the disqualifications mentioned in Clause (1) of Article 191 or if he resigns his seat and his resignation is accepted. Clause (4) of that Article authorises the House to declare the seat of a member vacant if he is absent from the meetings of the House for a prescribed period without the permission of the House. Article 191 then enumerates the disqualifications for membership of a State Legislature. Article 327 empowers the Parliament to make laws for making provision in respect of all matters relating to or in connection with elections to the Legislatures including preparation of electoral rolls and delimitation of constituencies and all other matters necessary for securing the due constitution of each House of Legislature. The residuary power for making such laws (subject to the laws made by the Parliament under Article 327) is conferred on the State Legislature by Article 328. 106. It is clear from the above-mentioned Articles of the Constitution and from the relevant provisions of the Representation of the People Act enacted by the Parliament under Article 327 of the Constitution that due constitution of a State Legislature, the qualifications and disqualifications of its members, the manner in which and the conditions on which they can become members and cease to be members, the duration for which they are entitled to remain members and all other ancillary matters relating to the State Legislatures in India are provided for in detail in the Constitution and the relevant statutes and none of these matters is left to be determined by the Legislature itself. It is unnecessary to dwell any further on the subject as it neither has been nor can be disputed that a State Legislature in India has no power to constitute itself or to change or modify its constitution either by its'' own writ or even by enacting a law contrary to or in derogation of the provisions of the Constitution and the provisions of any Central law made under Article 327. The power to constitute itself is a peculiar privilege of the British Parliament and it is not disputed and indeed it has been authoritatively laid down by the Supreme Court in the U.P. Legislature case that the Indian Legislatures cannot claim that privilege or power. 107. It is in this context that point (d) has arisen If the power and privilege of the Commons to expel its members is only a part of the privilege of the Commons to constitute itself and the House of Commons does not have the power to expel a member for any other reason, no further enquiry into the matter would be necessary and the Petitioner would be entitled to succeed ex debito justitiae. 108. Sir Erskine May has dealt with the subject of privileges of the Parliament in Chapter V of his Parliamentary Practice, Eighteenth Edition. The particular privileges of the Commons have been denned as "the sum of the fundamental rights of the House and of its individual members as against the prerogatives of the Crown the authority of the ordinary courts of law and the special rights of the House of Lords." Ancillary nature of Privilege--a necessary means to fulfilment of functions of the Parliament, are stated to include rights for the protection of the members of the House and the vindication of its own authority and dignity. Breach of privilege and contempt have been described by May (page 65 of Eighteenth Edition) in the following words: When any of these rights and immunities, both of the members, individually, and of the assembly in its collective capacity, which are known by the general name of privileges, are disregarded or attacked by any individual or authority, the offence is called a breach of privilege, and is punishable under the law of Parliament. Each House also claims the right to punish actions, which, while not breaches of any specific privilege, are offences against its authority or dignity, such as disobedience to its legitimate commands or libels upon itself, its officers or its members. Such actions, though often called ''breaches of privilege'' are more properly distinguished as ''contempts''. The powers and procedure of each House in dealing with cases of contempt are treated in Chapters IX and X. The privileges of a legislative assembly would be entirely ineffectual to enable it to discharge its functions, if it had no power to punish offenders, to impose disciplinary regulations upon its members, or to enforce obedience to its commands.'' (Cushing, Legislative Assemblies, paragraphs 532-3.) May has further stated on that page as under: Such powers (power to expel) are essential to the authority oft every legislature. The functions, privileges and disciplinary powers of a legislative body are thus closely connected. The privileges are the necessary complement of the functions, and the disciplinary powers of the privileges.
Power to punish for contempt and the power to regulate its own constitution have throughout been mentioned by May as two-separate things. This is also evident from the following passage at page 65 of the 18th edition: Certain rights and immunities, such as freedom from arrest or freedom of speech, belong primarily to the individual members of each House and only secondarily and indirectly to the House itself; but there are other rights and immunities, such as the power to punish for contempt and the power to regulate its own constitution, which being rather directed to the maintenance of its own collective authority than to the security of the individual members, may, be said to belong primarily to each House as a collective body. (Emphasis supplied by me). This clearly shows that even if the House of Commons has the power to expel a member for the purpose of regulating its own constitution, it undoubtedly has an independent power to impose the punishment of expulsion on a member who might have committed contempt of the House or of any of its members. 109. Good deal of emphasis was laid by the Petitioner on expulsion having been mentioned by May amongst the orders which the Commons may pass for constituting itself. It cannot, however, be forgotton that May has, while dealing with the penal jurisdiction of the British Parliament in Chapter IX of the eighteenth edition, listed the punishments inflicted by the Commons on its Members in case of contempt against the House at page 127 in the following words: PUNISHMENTS INFLICTED ON MEMBERS. In the case of contempts committed against the House, of Commons by members two other penalties are available, viz., suspension from the service of the House and expulsion. In some cases expulsion has been inflicted in addition to committal. That distinction has been maintained by all the authors; throughout their treatises. While dealing with expulsion by the Commons,. May has observed as below at pages 128-129: EXPULSION BY THE COMMONS 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. Members have been expelled as being in open rebellion; as having been guilty of forgery; of perjury; of frauds; and breaches of trust; of misappropriation of public money; of conspiracy to defraud; of fraudulent conversion of property; of corruption in the administration of justice, or in public offices, or in the execution of their duties as members of the House; of conduct unbecoming the character of an officer and a gentleman; and of contempts, libels and other offences committed against the House itself. The Petitioner tried to play with the, observation in the above-quoted passage "expulsion being justly regarded as an example of the House''s power to: regulate its own constitution" and about the subject having been dealt with amongst the modes of punishment only "for the sake of convenience." This argument of the Petitioner acts as a boomerang. The observations on which he has relied really show that a member may be expelled by the Commons either in order to regulate its own constitution or by way of punishment, and though it may be just to regard the power as one to regulate its constitution, it is more convenient to treat it amongst the grounds on which members have-been expelled from time to time by the Commons. It is clearly stated that the Commons have been expelling members on account of conduct unbecoming their character as members or even as gentlemen. In the same passage (quoted above) it has been further emphasised by May that expulsion may be ordered for contempt of the House or even for libel and other offences committed against the House itself. 110. Privileges of the House of Commons have been dealt with by Anson in Volume I of his Law and Custom of the Constitution (Fourth Edition) in Section IV of Chapter IV. Anson has stated that "privilege exists chiefly for the maintenance of the dignity of the House of Commons, and it is no wonder that the House thinks itself capable of maintaining its dignity without the aid of the legislature." I have already referred to the passage at page 146 of Anson where he has drawn a distinction between the privileges demanded and privileges not demanded at the commencement of every parliament, wherein he has specifically referred to the privilege of the House to expel any of its members either with a view to provide for its due constitution or by way of punishment in order to enforce its own privileges. The privileges of the House not demanded by the Speaker are dealt with in paragraph 3 of Section iv of Chapter IV after the discussion of the privileges demanded by the Speaker and granted by the Crown at the commencement of each parliament. The first privilege dealt with in paragraph 3 is the right to provide for its proper constitution, by the issue of writs when vacancies occur during the existence of parliament by enforcing disqualifications for sitting in parliament, and by determining disputed elections until 1868. The fourth item mentioned under "the right to provide for its proper constitution" is of "expulsion on account of unfitness to serve." This is dealt with at pages 172.173 in the following words: Cases may arise in which a member of the House without having incurred any disqualification recognised by law, has so conducted himself as to be an unfit member of a legislative assembly. For instance, conviction for misdemeanour is not a disqualification by law though it may be a disqualification in fact, and the House of Commons is then compelled to rid itself of such a member by the process of expulsion.
In the same paragraph of Section iv of Chapter IV after dealing with (a) right to provide for its proper constitution and (b) right to the exclusive cognizance of matters arising within the "House, Anson deals with (c) power of inflicting punishment for breach of privilege. This is dealt with under a parallel separate heading and not as a part of the privilege of providing for its own constitution. Anson starts the discussion on the subject by saying that the House is vested with the exclusive power of regulating its own procedure and adjudging matters which arise within its walls, and it, therefore, follows "that the House must possess some power of enforcing its privileges in this respect, and of punishing those who infringe them" Thereafter he deals with the various punishments like admonition, reprimand, commitment, fine and then. passes on to expulsion. Regarding expulsion he states at page 178-- In the case of its own members, the House has a stronger mode of expressing its displeasure. It can by resolution expel a member, and order the speaker to issue his warrant for a new writ for the seat from which the member has been expelled. But it cannot prevent the re-election of such a member by declaring him incapable of sitting in that Parliament. In attempting to do this, in the case of Wilkes, the House had ultimately to admit that it could not create a disqualification unrecognised by law.
The Petitioner has placed great reliance on Anson at page 178 where he says that expulsion is a matter which concerns the House itself and its composition and amounts to no more than an expression of opinion that the person expelled is unfit to be a member of the House of Commons. This sentence has reference to the above-quoted context and does not exclude the imposition of expulsion as a punishment for breach of privilege or for contempt. 110. Emphasis has been laid by the Petitioner on John Wilkes case. Substantial historical back-ground of John Wilkes and his conflict with the House of Commons have been given at pages 608 to 610 of Volume 23 of the Encyclopaedia Britannica. John Wilkes (hereinafter referred to as Wilkes) was an English agitator. He was elected as a Member of Parliament from Aylesbury in 1757. In 1762 he began to publish the ''North Briton''. Under encouragement from certain politicians Wilkes published ''No. 45'' of his journal on April 23, 1763. The issue contained a devastating attack on; various statements in the King''s speech which he described as false. George III considered Wilkes'' article as a personal insult and instigated immediate proceedings. A general warrant (such warrant does not contain the name of the person to be arrested) was issued by the Secretaries of State under which 48 persons were seized by the authorities before Wilkes could be arrested on April 30. On being arrested Wilkes was thrown into the Tower of London, but was released from there on May 6 by the order of Lord Chief Justice Pratt. The illegality of the general warrant was established in separate legal proceedings thereafter. Not having succeeded in getting Wilkes punished in this indirect manner, an Under Secretary to the British Government secured from Wilkes private press the proof sheets of an obscene parody ''Essay on woman which Wilkes had commenced but not completed. This disgusting work was read aloud in the House of Lords on November 15 and the House voted it to be a libel and breach of privilege. At the same time the Commons declared Wilkes'' ''No. 45'' a seditious libel. When a motion for his expulsion from the House was brought up in the Commons on January 11, 1764, Wilkes, who had in the meantime withdrawn to Paris submitted a medical certificate showing that he was ill. Ignoring the medical certificate Wilkes was expelled from the Commons on January 19, 1764. Wilkes avoided trial before the Court and was outlawed. Later, with the change of the Government Wilkes crossed back to London in 1768, and though unsuccessful in the election from London constituency, succeeded from Middlesex With a heavy majority in March of that year. He surrendered to his outlawry and was sentenced to fine and a year''s imprisonment for the Essay on Woman and No. 45. He however, gained immense popularity. He later presented to the Commons a petition raising the question of illegality of the proceedings against him. He was again expelled from the House on February 4, 1769, without a shred of excuse. He was immediately re-elected from Middlesex on February 16. He was again expelled. He fought the by-election and was re-elected on March 16. The Commons expelled him again. In the next election from Middlesex, various persons were put against Wilkes, but they were all defeated. The enraged Commons declared that Luttrell (who had lost to Wilkes in the election) ought to have been elected and actually seated him as the member from Middlesex. The electors of Middlesex felt acutely for their virtual disfranchisement. This led to rioting and strikes. In 1774 Wilkes won the Lord Mayoralty in the City of London on account of the popularity which he had gained. After the election of 1774, the King''s Court no longer found it wise to prevent Wilkes taking his seat in the Parliament. In 1776 Wilkes presented a bill for the radical reform of the Parliament. He also took leading part in the movement for cessation of hostilities with America. Wilkes ultimately succeeded in securing on May 3, 1782, the expunging from the Commons the entire record of his expulsion. Thereafter he did not seek re-election. 112. The Petitioner has relied on Wilkes'' case to show that the Commons ultimately realised their mistake and expunged all the proceedings relating to his various expulsions. Expunging their own record is also a privilege of the Commons. The seal of judicial precedent has been put by the House of Lords only on the question of validity or legality of the outlawry proceedings while confirming the judgment of the Court of King''s Bench. Nothing at all hag been said therein about the validity or legality of the resolution of the Commons expelling Wilkes. The second legal aspect covered by Wilkes'' case" relates to the validity of the general warrant which was held to be illegal by the Court and was never issued thereafter. The only other law settled by Wilkes'' case is that the Commons does not have the privilege to add to the well-known disqualifications for membership. Wilkes'' case does not, therefore, appear to advance the Petitioner''s plea to any relevant extent. 113. So far as the position in England is concerned, it is clear from the history of the abovementioned cases and particularly from Ailighan''s case (which was nearest to the Republic Day in India) that the Commons did have and did exercise the power to commit or punish for contempt of the House or for breach of its privilege independent of the power to constitute itself. A photostat copy of the proceedings of the House of Commons, dated October 30, 1947, on the report of the Privileges Committee against Heighway and Allighan has been placed on the record of the Petitioner''s case by the learned Advocate-General and a copy thereof was duly furnished by him to the Petitioner. The Petitioner has sought to distinguish Ailighan''s case on the ground that the charge against Allighan included that of bribery. That does not in my opinion make any difference to the question before us. The bribe was also not alleged to have been taken inside the four walls of the House and it was alleged to have been taken by Allighan outside the House. As to what was the exact charge of misconduct or what were its details or aggravating circumstances or extenuating ones is irrelevant for considering the issue before us relating to the existence and extent of the power. One of the questions which had arisen in Ailighan''s case was as to what was the distinction between a contempt and breach of privilege of the House. The Commons decided that contempt and breach of privilege often overlap each other. It appears to us that every breach of privilege would amount to contempt, but every act of contempt of the House may not amount to breach of any privilege of the House. 114. For the foregoing reasons I am constrained to decide point (d) against the Petitioner and hold that independent of the power and privilege of the House of Commons to constitute itself it did have and exercised at the time of the coming into force of our Constitution the power to expel its members by way of punishment for misconduct or for breach of privilege or for committing contempt of the House. 115. The next submission of the Petitioner was that even if it is found that the Commons did enjoy the privilege or power of expelling its members on account of misconduct, contempt or breach of privilege independent of the power to constitute itself, it should be held that the Indian Legislatures have no such power because the power of expulsion for contempt of the House has decended on the Commons from the original power held by the British Parliament in its capacity as Court of the Parliament like the powers enjoyed by any other Court to punish for its contempt. This argument must be repelled for at least two reasons. Firstly, the House of Commons was never the Court of Parliament. The Court of Parliament consisted of the Commons, the Lords and the King. It cannot, therefore, be said with any amount of certainty that the power to punish for its contempt has descended to the Commons because it was ever by itself the Court of Parliament. Secondly the source from which the Commons acquired a particular power, privilege or immunity is wholly irrelevant for our purposes. I have already come to the con-elusion while discussing point (a) that only those privileges or powers of the Commons are not available to the Indian State Legislatures under Clause (3) of Article 194 of the Constitution (because of its plain and unequivocal language) which cannot be claimed or enjoyed by the Indian Legislatures either because those cannot possibly fit into the Indian political constitutional environment or those which if claimed would violate some constitutional mandate or go contrary to any express provision of the Constitution, or is neither compatible with nor reconcilable with any particular constitutional provision. The source from which the power or privilege was originally derived by the Commons is absolutely immaterial for us for this purpose. The concept of source does not stem out of any part of Article 194(3) from whatever angle it is analysed. The Petitioner has relied on the following observations in May at page 55: Since the decision of the Privy Council in Kielley v. Carson 4 Moore P.C. 63 it has been held that this power (the power to punish for breach of privilege and contempt) is inherent in each House of Parliament not as a body with legislative functions, but as a descendant of the High Court of Parliament and by virtue of the lex et consuetudo parliamenti.
There is no quarrel with the proposition laid down by May in the above passage. 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 synonyms. As already stated the House of Parliament consists of the House of Commons, the House of Lords and the King Emperor (or the Queen as the case may be). Be that as it may, 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 which is wholly foreign to the language of Article 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, but re-writing it. This is not permissible. I, therefore, hold that the original source of a particular power or privilege in the House of Commons is not at all relevant for determining whether the State Legislature can or cannot claim that power or privilege after it is found that the power on privilege in question was indeed possessed and exercised by the Commons at the time of the commencement of the Constitution and does not fall within any of the exceptions to the rule referred to in my discussion of the first argument advanced by the Petitioner. 116. Another limb of the same argument pressed by the Petitioner was that whereas the British Parliament has inherent power to punish for its contempt or breach of privilege or misconduct as there is no written constitution in England the State Legislatures in India have no such power because all their powers are laid down by the Constitution and they have no inherent power. He submitted that the observations in the judgment of the Madhya Pradesh High Court in Yashwant Rao''s case about the Indian Legislatures also possessing some inherent powers or privileges are not correct. There may indeed be some force in the submission of the Petitioner that the State Legislatures in India do not have any inherent power, but once again the source of exercise of the power by the Commons or the reason why or the circumstances in which the Commons started exercising a particular power or claiming a particular privilege are not relevant for our purposes. It cannot be claimed by a State Legislature in India that it possesses any power, privilege or immunity outside the scope of Clause (3) of Article 194. The question of inherent power of the Commons is, therefore, not-relevant for deciding the issues that arise in the instant case. 117. This appears to be an appropriate stage to refer briefly to the exercise of the privileged of expelling their members by the Indian Legislatures since January, 1950. At least our such cases have been brought to our notice.. First is the Mudgal''s case. On June 8, 1857, a notice was adopted by the Parliament appointing a Committee of privileges to investigate the conduct and activities of Shri H.G. Mudgal, M.P., in connection with his certain dealings, and to consider and report whether the conduct of the Hon''ble Member was derogatory to the dignity of the House and inconsistent with the standards which Parliament is entitled to expect from its members. In its detailed report, dated July 25, 1961, the Committee gave the ultimate finding that Mudgal''s conduct was derogatory to the dignity and inconsistent with the standards which Parliament is entitled to expect from its members. The House accepted the report and the findings and ordered Mudgal''s expulsion. Mudgal tendered his resignation and the resolution in its amended form was affirmed by the House. 118. The second known case of exercise of power of expulsion by an Indian Legislature relates to the Madhya Pradesh Legislative Assembly. That Assembly passed two separate resolutions expelling Yeshwant Rao Meghawale and Pandhari Rao Kridutta, two of its members, from the House and declared their seats to have become vacant. The expelled members filed a petition under Article 226 of the Constitution in the Madhya Pradesh High Court seeking a declaration to the effect that notwithstanding the passing of the said two resolutions, their seats had not become vacant and praying for the Assembly, its Secretary, and the State being restrained by a suitable direction from giving effect to the said resolutions in any manner. A Division Bench of the Madhya Pradesh High Court held in Yeshwant Rao Meghawale v. Madhya Pradesh Legislative Assembly and Ors. (supra), that since the Assembly has the power and privilege of expelling a member resulting the vacation of his seat, the correctness, legality or propriety of the resolutions expelling the members cannot be challenged in Courts of law. The High Court also declined to, entertain the plea that the said resolutions had been passed without affording any opportunity to explain the allegations against them. The High Court held: The language of Article 194(3) is plain, enough to show that wherever power of 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, 1950 and was recognised by the English Courts. This enquiry can clearly be by the Court. This Court can, therefore, judge of the existence in the House of a privilege or power claimed. But once 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. Krishna Sinha, (supra). It is unnecessary to burden this judgment by entering into a lengthy discussion about the power of the Courts in England to judge of the existence in either House of Parliament of a power or privilege claimed. Briefly put, the position in England is that it is for the Courts to judge of the existence in either House of Parliament of a privilege, that neither House can create new privileges; but where one of the undoubted privileges of the House is infringed, then the Courts cannot interefere with the decision of either House and it is for the House to judge of the occasion and of the manner of its exercise. 119. The objections raised on behalf of the expelled members questioning the power of the State Legislature to expel them on the ground that the Legislature had no power to regulate is own constitution and the power of expulsion was only a part of that privilege of the Commons as well as the claim that a member once elected to the Assembly is entitled to continue for the duration of the Assembly unless his seat becomes vacant under Article 190 or the member becomes disqualified under Article 191 were also rejected by the Division Bench. 120. The third known Indian case of expulsion of a member is of Shri Subramanian Swamy Member of the Rajya Sabha. A Motion was adopted by the Rajya Sabha at its sitting of September 2, 1976, to refer the matter of alleged breach of privilege and contempt of the House committed by Swami to'' the Privileges Committee of ten members, of which one subsequently resigned. The charges against Swami were that during the past one year before the Motion was adopted, he had indulged in anti-Indian propaganda calculated to bring the Parliament and the country''s democratic institutions into disrepute and had been generally behaving in a manner unworthy of a Member of the Rajya Sabha, both inside and outside the country. The Committee of Privileges was asked to report whether the conduct and activities of the member were inconsistent with, and seriously fell below, the standards which the Rajya Sabha is entitled to except of its members and to make such recommendation as the Committee may deem fit. AH the first sitting of the Privileges Committee of September 2, 1976 it felt that it was necessary to ascertain in the first instance the precise nature of Swami''s activities and behaviour referred to in the Motion. In its second sitting held on October 23, 1976, the Committee considered several letters received from Swami wherein he had, inter alia, requested for permission to be accompanied or represented by a counsel. The permis-mission was not granted and Swami was asked to appear in person before the Committee at its meeting to be held on October 29, 1976. Mr. Swami failed to appear. The Committee decided to ignore a letter dated October 25, 1976, written by some one who styled herself as attorney of Swami on the ground that she had no locus standi to address any such communication for consideration of the Committee. It took a serious view of the failure of Swami to comply with its direction, but decided to give him still another and final opportunity to appear in person on November 2, 1976. Swami having failed to avail even of the last opportunity, the Committee expressed its displeasure at his attitude and proceeded to decide the matter ex-parte. A report having been drawn by a sub-committee of the Committee, the latter examined all the material, including the documents placed before it, at its seventh meeting held On November 12, 1976, and adopted the report. The Committee was of the view that in coming to its conclusions, it was not so much concerned with abstract technical and legal niceties, but its concern was the conduct of Swami whether he had acted in a dishonourable manner unworthy of a Member of the Rajya Sabha and his conduct was derogatory to the dignity of the House and inconsistent with the standard which Parliament is entitled to expect from its Members. The Committee noted the details of Swami''s undesirable activities and also the fact that in his communications to the Parliament Secretariat there was not a word of regret for his patently unpatriotic and anti-national activities during his foreign tours. The Committee found that the acts referred to by it in its report seriously impaired member''s right to represent his constituents in Parliament and detract from the'' trust reposed in him as such member. The Committee proceeded to summarise its further findings in the following words: It is the Committee''s view that Members of Parliament should observe the highest standard of rectitude in matters concerning drawal of allowances for, otherwise, they are liable to be accused of committing a fraud on public funds. There is no doubt that Shri Subramanian Swamy has deliberately violated the law by travelling on a passport which he knew was impounded and also when he drew TA DA when he had no intention of attending the meetings of the House Committee. He also did not appear before this Committee in spite of repeated direction in that behalf. His description of Parliament as our captive Parliament and the innuendos he has made against the Members show his utter disrespect to the parliamentary. institutions of the country and amount, to contempt of the House and is members. All these facts constitute a grave breach of the elementary standards of conduct expected of a Member of Parliament.
After recording the above findings, the Committee recommended, to the House the expulsion of Swami in the following words: The Committee would, thereore, recommend that Shri Subramanian Swamy be expelled from the membership of the Rajya Sabha as his conduct is derogatory to the dignity of the House, its Members and inconsistent with the standards which the House is exited to expect of its Members. In making this recommendation, the Committee would like to quote with approval the following observations of May (18th edition--p. 128): 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. The Committee is conscious that this is the first time in the Rajya Sabha that a recommendation for. expulsion of one of its members is being made to the House. however, the Committee Would be failing in its duty if it overlooked serious deviations, as in the present case, from the standards of conduct which the House has a right to expect of its members. 121. When the report of the Privileges Committee was brought before the House suggestions were made by some honourable members-that opportunity may be given to Swami to take part in the debate. The suggestion was not approved by the House on the ground that nothing prohibited the House and taking part in the debate but it was not necessary to send him any fresh notice. Ultimately, the Motion for expelling Swami from the House was carried The supremacy of Parliament and its absolute privilege to punish its members for contempt or conduct unbecoming a member of the House were highlighted during the debate in the House. (The above facts subsequent to the report of the privileges Committee are based on newspaper reports). 122. The only other case of expulsion of a member of a legislature brought to our notice is that of the Petitioner the constitutionality and validity of which is sub-judice in the instant case. 123. The only other argument advanced by the Petitioner (excepting that of procedural irregularities or alleged illegalities and of mala fides) was that a State Legislature cannot expel a member as that would result in the vacation of his seat which is contrary to the exhaustive provisions contained in Articles 180 and., 191 of the Constitution which alone contain the circumstances in which the seat of a sitting member in State Legislature can vacated before the dissolution of the Hmise. 124. Clause (1) of Article 190 authorises the State Legislature to make law for the Vacation by a person who is chosen a member of the House of his seat in the House. No. such law appears to have been made by the Haryana State Legislature. Clauses (3) and (4) of Article 190 provide for the vacation of the seat of a sitting member of the State Legislature only in three eventualities, namely: (a) if he becomes subject to any of the disqualifications mentioned in Clause (1) of Article 191; (b) if he resigns his seat by submitting his written resignation to the Speaker "and his resignation is accepted; and (c) if for a period of sixty days the member is absent from the meetings of the House without the permission of the House. In the first two eventualities [(a) and (b) above], the seat shall become automatically Vacant but in the third one [(c) above], that is in Clause (4) of Article 190, the House may or may not declare his seat to have become vacant. The disqualifications for membership referred to in Article 190(3)(a) have been enumerated in Clause (1) of Article 191. Admittedly expulsion of a member is not mentioned amongst the five contingencies in which any person would stand disqualified from membership. The argument of the Petitioner was that the circumstances in which the seat of a sitting member can become vacant which have been listed in Articles 190 and 191 of the Constitution are exhaustive and the State Legislature cannot add to the said list by declaring a member''s seat vacant by expulsion. I am unable to find any force in this contention. Article 191 enumerates only the disqualifications. Expulsion is not a disqualification as an expelled member can (in the same way as in England) seek reelection. There fore expulsion could hot possibly be listed in Article 191 as a disqualification. The only contingenies listed in Article 190 of the Constitution are those in which the seat of a member would not have become vacant unless a statutory provision had been made in that behalf. There are certain situations in which cannot possibly be said that the seat of a member has not become vacant. The most glaring instance of such a contingency is of death. All the same death has not been mentioned in Article 190. That does not mean that even if a member dies his seat does not become vacant. Similarly if a member is expelled form the House it cannot possibly be imagined or said that notwithstanding his expulsion he continues to be a member of the House. In my opinion it would have looked ridiculous to provide in Article 190 that the seat a member would become vacant on his without saving Some light may be drawn from the amended 194(3) which has not yet come into force. The powers and privileges of a State Legislature shall be those which it may claim. Can it be said that if after the amendment, a Legislature expels its member for misconduct or contempt of the House the action would be unauthorised, My answer to that question is a categorical ''No''. The contention of the Petitioner based on this argument, therefore, fails. 125. The argument (dealt with elsewhere also) about expulsion; being abhorrent to the electorate''s right of being represented by a person of its choice for no less than the period of five years provided in the Constitution is also fallacious as that right is subject to the other provisions of the Constitution and is not like the rights enumerated in Part III thereof (fundamental rights). There are various circumstances in which fee period can be curtailed. Some of the examples of those contingencies are: (i) on the failure of the constitutional machinery and dissolution of the House; (ii) on the happening of any of the four things mentioned in. Article 190; , (iii) on suspension from the House in the beginning of every session or being committed to the prison most of the time-powers which were admitted by the Petitioner to exist in the hands of the State Legislature; (iv) on death; (v) on expulsion 126. In the U.P. Legislature case the Supreme Court has advised reconciliation of the powers and privileges of the House even with fundamental rights by following the principle of harmonious construction and not striking down the power out of hand. The right of representation for a fixed period is not as sacrosanct as a fundamental right. 127. The next main point urged by the Petitioner was that the impugned order of his expulsion should be set aside on account of the following "illegalities" committed in the proceedings leading to the passing of the resolution, dated January, 8, 1975: (i) the privilege motion was adopted on November 12, 1973, without satisfying the requirements of Rule 262 of the "Rules of Procedure and Conduct, of Business in the Haryana Legislative Amenably" [framed under Article 208(1) of the Constitution, hereinafter referred to as the Rules], inasmuch as the written notice was given to the Secretary only half an hour before the sitting of the House on that day and sufficient notice thereof was not given; (ii) the privilege motion was adopted in utter violation of Clause (ii) of Rule 263 of the Rules as the alleged offending'' documents had been printed and published on March 22, 1973 (Annexure P. 1). and on August 30, 1973 (Annexure P. 21), and, therefore, the writing or publication of those booklets could not be described to be "or recent occurrence"; (iii) the privilege motion against him had lapsed because after the same was carried on November 12, 1973, the House was admittedly prorogued by the Governor of Haryana on December 4, 1973, on February 11, 1974, on July 31, 1974 on August 20, 1974; and on December 10, 1974, before the motion for his expulsion was resumed and carried in the House on January 8, 1975; (iv) sufficient opportunity was not allowed to the Petitioner to produce his evidence before the Privileges Committee; (v) notwithstanding Rules 46(10), 68(xi) and 100(2)(iv) of the Rules, the Vidhan Sabha proceeded to discuss and pass the motion for the Petitioner''s expulsion in spite of the fact that the validity of the same was sub-judice in civil suit Dal Singh v. Hardwari Lal pending in the Court of the Senior Subordinate Judge, Chandigarh, to the pendency of, which the attention of the House had admittedly beerr invited by Dal Singh (the Plaintiff in the civil suit), member of the VSdhan Sabha; at the meeting of the Vidhan Sabha on January 8, 1975; (vi) the motion or the Petitioner''s expulsion was carried when the Petitioner was himself not present in the House; and (vii) the Privileges Committee''s report was considered and the impugned resolution was passed in violation of Rule 274(2) of the Rules as sufficient time was not allowed to discuss the motion and the Speaker wrongly refused to allow the members to discuss the motion on an adjourned date. 128. In order to come to a correct decision on the first illegality alleged to have been committed by the House the exact requirements of Rule 262 of the Rules can best be appreciated by quoting the rule itself: A member wishing to raise a question of privilege shall give notice in writing to the Secretary before the commencement of the sitting on the day the question is proposed to be raised. If the question raised is based on a document, the notice shall be accompanied by the document.
129. A plain reading of the above-quoted rule shows that all that is necessary thereunder is that notice of the question of privilege should be given to the Secretary in writing before the commencement of the sitting of the House on the day the question is proposed to be raised. It is hot disputed that the notice of the question sought to be raised by way of privilege motion on November 12, 1973, was given to ,the Secretary before the sitting on that day and Mr. Speaker had checked up the motion and found it to be in order. Petitioner''s own case is that the notice of motion was given to the Secretary only half an hour before the proceedings in the Assembly started on that day That is the exact, requirement of the rule. No violation of Rule 262, is, therefore made out. 130. The second limb of the same argument is that no prior notice of the motion was given to the Petitioner. No rule specifying this requirement has been pointed out to us. On the facts of the case therefore there is no force in the first submission of the Petitioner in this regard. For reasons to be assigned collectively at the end of all these points I am also of the view that even if there had been some minor violation of Rule 262, it would have amounted to a mere, irregularity within, the meaning of Article 212 and it would not have been open to the Court to adjudicate upon the question of the alleged Violation. 131. There is no doubt that one of the conditions precedent for admitting and proceeding with a privilege motion in the Vidhan Sabha. under Rule 263 of the Rules is that the matter to which the incident relates must be of recent occurrence. Nor is there any dispute over the fact that. Annexure P-l bears the date March 22, 1973, and the booklet Annexure P-2 bears the date August 30, 1973. The main emphasis of the Petitioner on this point related to Annexure P-1. though he did not concede that the happening of August 30, 1973, would be of recent occurrence. It is noteworthy that in the motion itself it has been specifically pleaded that the matters in question were of recent Occurrence and required the interference of the House. It is within the authority of the Speaker to satisfy himself that the motion is in order. Inasmuch as the Speaker''s specific attention had been invited to this aspect of the requirements of Rule 263, and the Speaker had by a specific Order admitted the motion to be in order and the motion was" carried "by the House, conclusively? proves that Mr. Speaker as well as the. House was satisfied that the matters covered by the motion were of "recent occurrence". "Recent occurrence" has not been defined anywhere in the Rules. What is recent and what is not recent would always depend on the facts of each case and that peculiar context in which the matter has to be decided. NO hard and fast rule can be laid down by a Court in this behalf. This is as much a question of fact arising before the House as any other. The House is the sole Judge of this question. Even May has stated at pages 342-343 that this is a matter for the decision of the Speaker in his discretion The observations of Kaul and Shakdhar at page 258 and of Ramchandran at pages 324 and 421 are in no different strain. In any case It has been authoritatively held by their Lordships of the Supreme Court in Sharma''s second Case (which as already stated would override even the opinion of the Supreme Court in the U.P. Legislature case as the said judgment of the Supreme Court in Sharma''s case was of a larger Bench) that the question whether the matter complained against in a privilege motion is or is not of recent occurrence is for the Legislature to decide and the Court is not concerned with it (supra). Independent of the above considerations I am inclined to hold that even if Rule 263(ii) of the Rules is violated by the House in any particular case, the issue would not be justiciable before the Court as it would at best be only an irregularity curable under Article 212 of the Constitution. The arguments of the Petitioner based on the second alleged illegality is accordingly repelled. 132. So far as the effect of prorogation of the House is concerned a survey of certain relevant facts and the statutory provisions in this regard is necessary. The different dates on which the House was prorogued by the Governor between November 12, 1973, and June 8, 1975, have already been mentioned while setting out the Petitioner''s arguments in this regard. The privilege motion was carried and referred to the Privileges Committee on November 12. 1973. The House was thereafter prorogued on December 4, 1973 When it met for the first time thereafter, the Privileges Committee submitted an interim report, dated January 15, 1974, asking the House to give an extension of time for submitting its report, since the issue referred to the Committee was very important and required detailed examination and the Committee was not in position to make a report by January 31, 1974, the last date fixed by the House for that purpose in its resolution, dated November 12, 1973. The House agreed to the request of the Committee on January 18, 1974. and extended the time for the Committee''s report up to January 31, 1974. Before the House was next prorogued on July 31, 1974, the Committee submitted its second interim report, dated July 15, 1974, which came up for consideration before the House on July 16, 1974 (before the expiry of the time already allowed to the Committee). The Committee stated in that report that the issue referred to it was very important and required further detailed examination, and since it was not in a position to make a report to the House by July 31, 1974, the last date fixed for the purpose, they recommended that the time for making the final report to the House be extended up to February 28, 1975. The said second preliminary report of the Committee was considered, in the sitting of the Haryana Vidhan Sabha on July 16, 1974, and the, motion was carried on the same day extending the time for the final report up to February 28, 1975. The final report was admittedly placed on the table of the House and the "motion for its adoption was put before the House ,on January 8, 1975, that is within, the time extended by. the House. 133. The Petitioner has referred to the following observations of May at pages 255-256: effect of prorogation and adjournment respectively.--The effect of a prorogation, is at once to suspend all business until Parliament shall be summoned again. Not only are the sittings of Parliament at an end but all proceedings pending at the time are quashed, except impeachments by the Commons and appeals before the House of Lords. Every bill must therefore be renewed after a prorogation, as if it were introduced for the first time.
He then invited our attention to the passage at the top of page 549 of May regarding the proposals for suspending or resuming the bills in order to emphasise that all proposals to cut an inroad in to the practice of lapsing of parliamentary business on prorogation have failed despite discussion. This is what is stated in that passage: Proposals have been made for a provision, either by statute or by standing orders, for the suspension of bills from one session to another, or for requiring proceedings upon such bills, notwithstanding prorogation. These schemes have been discussed in Parliament and carefully considered by committees; but various considerations have restrained the legislature from disturbing the constitutional law by which parliamentary proceedings are discontinued by a prorogation.
He next referred to paragraph 12 in the A.I.R. report of
It remains to consider one other point sought to be made on behalf of the Petitioner that the Assembly had no power to proceed against the Petitioner for breach of privilege in May 1957 when we know as a fact that the Assembly was prorogued several times between May 31, 1957, and November 23, 1959. In our opinion, there is no substance in this contention, for the simple reason that the prorogation of the Assembly does not mean its dissolution. The House remains the same; only its sessions are interrupted by prorogation of the House according to the exigencies of public demands on the time and attention of the members of the Assembly and the volume of business of the Assembly itself. In this connection reliance was placed on the following passage in May''s Parliamentary Practice, 16th Edition, page 279: The effect of a prorogation is at once to suspend all business until Parliament shall be summoned again. Not only are the sittings of Parliament at an end, but all proceedings pending at the time are quashed, except impeachments by the Commons and appeals before the House of Lords. Every bill must therefore be renewed after a prorogation, as if it were introduced for the first time. The observations quoted above do not support the extreme contention raised on behalf of the Petitioner that the proceedings in contempt are dead for all time. The effect of the prorogation only is to interrupt the proceedings which are revived on a fresh motion to carry on or renew the proceedings. In this case, it is not necessary to pronounce upon the question whether dissolution of the House necessarily has the effect of completely wiping out the contempt or the proceedings relating thereto. The passage from May relates to the practice in the British Parliament and are not directly relevant. The observations of the Supreme Court in Sharma''s second case are really against the contention of the Petitioner***. Even in case of dissolution their Lordships said that it was not necessary to pronounce upon the question whether dissolution would have the effect of completing wiping out the contempt or the proceedings relating thereto. Nor did the Supreme Court agree with the contention that the observations of May (reproduced above) support the extreme contention that the proceedings in contempt die out with prorogation. Their Lordships made it clear that the effect of the prorogation only is to interrupt the proceedings which are revived on a fresh motion to carry on or review the proceedings. The learned Advocate-General referred to the observations of their Lordships of the Supreme Court in paragraph 14 of their judgment in
�on the whole, we are inclined to take the view that the effect of Clause (5) 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.
So far as the legal position in India is concerned Article 196(3) of the Constitution strikes a distinctly discordant note to the British practice. It states: A Bill pending in the Legislature of a State shall not lapse by reason of the prorogation of the House or Houses thereof.
Rule 7 of the Rules then specifically provides that the all pending notices will lapse with prorogation. The argument of the Petitioner is that the only exception carved out by the Constitution to the general rule of lapsing by prorogation is contained in Article 196(3) of the Constitution so far as the State Legislatures are concerned, and all other proceedings pending before the House must lapse. If this were so it would have been unnecessary to provide in the Rules for notices to lapse. Three questions Have been raised in this connection. According to the Petitioner notice under Rule 7 stands for notices of motion and the motion itself lapses with the prorogation of the House and could not survive the session as it was never revived by anyone. According to the Advocate-General the notice stage had finished as soon as the motion was admitted by the Speaker, and in any case then notice of motion itself came to an end when the motion was carried by the House on November 13, 1973. I am inclined to agree with the learned Advocate-General. I accordingly hold that at the end of the sitting of the House on November 12, 1973, nothing was left which could lapse under Rule 7 as no notice of any motion was pending before the House by then. 134. Faced with this situation the Petitioner submitted that ever if Rule 7 is not attracted to the facts of the case what was pending before the Committee should be deemed to be pending before the House and therefore, the proceedings before the Committee lapsed by the very first prorogation of the House on December 4, 1973. He referred to the return of the Secretary of the Vidhan Sabha wherein he has submitted that the Committee of Privileges is nothing less than the House in miniature. This may be so, but it makes no difference to the point, in issue. I am unable to agree that the privileges lapsed by mere prorogation of the House. Even if it may be assumed that what is pending before the Committee is deemed to be pending before the House, the Petitioner cannot succeed on this point as the two motions extending the time for the submission of the report must be equated to the revival of the proceedings, though the word "revival" was not used either in the motions or in the House. Reference may be had with advantage in this respect to the cases referred to at footnote (h) on page 256 of May, wherein mention has been made of a few cases before the British Parliament in which provision was made for resuming in the following session the proceedings as reported from the Joint Committee and the resolution for resumption of proceedings was agreed to by the House in the following session. Taking the analogy of those cases the learned Advocate-General rightly argued that by admitting the motion in respect of the final report of the Committee the House should be deemed to have permitted resumption of proceedings on January 8, 1975, even if there was some irregularity during the interval. I find a great force in the submission of the learned Advocate-General that even otherwise the matter of effect of prorogation of the House on pending proceedings is a matter of procedure. 135. The consideration and adoption of the final motion not-withstanding the alleged lapsing of the proceedings before the Committee of Privileges on account of the various prorogations of the House is a pure matter of procedure and Article 212(1) of the Constitution is a complete answer thereto. Reliance was placed for this proposition on the decision of the Bombay High Court in Homi D. Mistry v. Shree Nofisul Hassan and Ors. I.L.R. (1957) Bom 218, wherein it had been held on the facts of the case that there was no question of the report of the Committee having lapsed and the report could be considered by the session of the House which met after the prorogation of the House in-between. It was further held on the legal point referred to by the Advocate-General as below (at page 252): It is argued that even otherwise if it is a matter of procedure and if it is wrong procedure Article 212(1) is a complete answer namely, 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. In these circumstances, in my opinion the point made on behalf of the Plaintiff is not maintainable namely, that the proceeding had lapsed and the subject could not be considered by the House which met after prorogation. 136. Counsel for the contesting Respondents also brought to our notice a Speaker''s ruling referred to at page 136 of M.N. Kaul and S.L. Shakdher on Practice and Procedure of Parliament (First Edition) in the following words: A point was raised in Lok Sabha whether inasmuch as Article 107(3) specifically saved only Bills pending before either House from lapsing, all other pending business lapsed up on prorogation. The Speaker observed that the article did not specifically mention that all items of pending business other than Bills would lapse on prorogation, and, therefore, the provision in the ''Rules sf Procedure of Lok Sabha'' framed under Article 118 would apply.
The learned authors have mentioned (at the bottom, of page 135 to the top of page 136) that under the Rules of Procedure of the Parliament motions, resolutions and amendments which have already been moved and are pending in the House do not lapse on prorogation and are carried over to the next session. Reference has then been made to the business pending before the Parliamentary Committee. At page 136 Kaul and Shakdher have observed that the Rules of Procedure (of the Parliament) specifically provide that any business pending before a Committee shall not lapse by reason only of the prorogation of the House and the Committee shall continue to function notwithstanding such prorogation. This passage does not appear to me to be of any assistance on the issue before us as no such rule framed by the Vidhan Sabha has been brought to our notice. Similarly the observations by Kaul and Shakdher at page 612 to the effect that any business pending before a committee does not lapse by reason only of the prorogation of the House and the committee continues to function notwithstanding such prorogation appear to be based on the Rules of Procedure and Conduct of Business in the House of the People, but the following sentence by Kaul and Shakdher at page 612 under the heading "Effect of Prorogation on Business pending before Committees" may be instructive: Even in the old Central Legislature, although there was no specific provision to that effect in the Standing Orders, in actual practice every pending business before the Committees survived prorogation of the Assembly.
It is settled law that the provision for non-lapsing of Bills in Article 196(3) does not by implication bar making Rules to save other proceedings also from the effect of prorogation. The State Legislature has the power to make such Rules. When before the end of the session or at the beginning of the next one the Legislature unanimously extends time for submission of the report of the Privileges Committee, the main object of doing so would be to cure any possible irregularity which might otherwise have occurred and cast a cloud on the validity of the final report of the Committee. This precaution was also taken in the present case. 137. This takes me to the general argument relating to procedural irregularities having been taken out of the scope of inquiry by a Court by the specific provision contained in Article 212 of the Constitution. That Article has already been quoted by me in an earlier part of this judgment. The Petitioner sought to rely on certain passages in the judgment of the Supreme Court in the State of Punjab v. Satya Pal Dang (supra) relating to the Speaker''s ruling being contrary to the Ordinance promulgated by the Governor of Punjab. The Speaker''s ruling was not set aside by the Supreme Court in Satya Pal Dang''s case because of any irregularity in procedure but because it was contrary to the law of the land. Reference was next made by the Petitioner to the following observations at page 761 of the judgment of the Gujarat High Court in Chhabildas Mehta''s case (supra): 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. Now if the ruling of the Speaker suffers from a patent error of law apparent on the face of the record, a question may well arise whether this Court in the exercise of its jurisdiction under Article 226 can quash and set it aside.
No such consideration appears to enter the field of discussion in the present petition. On the other hand Bhagwati, C.J. (as he then was) has observed in the sentence just preceding the passage quoted above that even if the ruling of the Speaker was erroneous, it was a matter within the jurisdiction of the Speaker and he had a right to decide rightly or wrongly according to his own view of the law. There may also be difference between the Ruling of Mr. Speaker on the one hand and a unanimous resolution of the whole House on the other in the matter of effect of some infirmity in procedure. Whereas Chhabil Das Mehta''s case was concerned with the former, we are dealing with a case falling in the latter category. 138. The learned Advocate-General has referred to the following passage (relating to the force of the Rules) from page 760 of the Ccujarat case: The Rules made by the House under Article 208(1) would, therefore, have to be in conformity with the privilege chimed under Article 194(3) and this circumstance also clearly suggests that the rules have no statutory force or effect and the. House may depart from them at its own discretion without being answerable to any external authority.
The argument of the learned Counsel was that even if the House departs from Statutory rules framed by it, it would amount to nothing more than an irregularity, and when the House has been held to be entitled to depart from even the statutory rules, the mere non-observance of practice of the British Parliament in the matter of effect of prorogation cannot invalidate the proceedings. The observations of Bhagwati, C.J. in the above-quoted passage relied upon by the learned Advocate-General are possibly too widely stated as statutory rules framed under Article 208(1) of the Constitution should in my opinion bind the House as mush as anyone else, and though violation of the Rules may indeed not be justiciable in a Court of law as the Rules relate to procedure only and such an, inquiry is barred by Article 212(1); the Court cannot give a licence to the House to violate the statutory rules with complete immunity. 139. The Petitioner also argued that in the absence of any specific provision in the Constitution or in the Rules the Vidhan Sabha was and is bound to follow the practice of the House of Commons in the matter of procedure relating particularly to the exercise of its penal jurisdiction. For this proposition he placed reliance on paragraph 139 of the judgment of the Supreme Court in the U.P. Legislature case at page 790 of the A.I.R. report, wherein exception was taken by their Lordships to the U.P. Legislature not having conformed to the uniform practice which the House of Commons has followed for more than a century. inasmuch as the U.P. Legislative Assembly did not instruct its lawyer either to file a return or to ask for time to do so. 140. I do not find any advantage in referring to the discussion of proceedings in a case of contempt with particular reference to the proceedings upon complaints by members of breach of privilege contained in pages 157 and 158 of May as I am not impressed with the argument that in spite of the specific rules (Chapter XXII) framed by the Vidhan Sabha under Article 208(1) of the Constitution we can still look to the practice prevalent for the disposal of privilege motions in the House of Commons. Same applies to the reference made by the Petitioner to the written and unwritten procedure of the British Parliament, which is mentioned in May from pages 201 to 204, relating to the content and sources of British Parliamentary Procedure. In this very context the Petitioner referred to the ruling of the Speaker of the Lok Sabha refusing to put a privilege motion to the House in pursuance of the English practice and not admitting the motion at all referred to at page 515 of the Law of Parliamentary Privileges in India by V.G. Ramchandran (hereinafter referred to as Ramchandran): We have framed certain rules to our own needs and conditions. In other respects where this Parliament has not made any rule or passed any law, the general practice prevalent in the House of Commons before the date of the Constitution will prevail. Here there is a specific rule that the Speaker has to give his consent, and if he does not give consent the matter cannot be raised.
The ruling of the Speaker in the Lok Sabha may indeed be binding on the Lok Sabha but cannot be treated as laying down law for the Courts. Even otherwise, Mr. Speaker of the Lok Sabha referred to the prevalence of the practice of the Commons only in such matters for which no rule has been made by the Indian Legislature and for which no law has been passed. As already pointed out by me, the Viihan Sabha has made detailed rules for dealing with privilege motions and, therefore, we cannot look to the practice of the British Parliament in this respect. 141. The reference by the Petitioner to the last paragraph at page 39 of Parliament by Jennings (second edition) is hardly relevant. Reference is made to the traditions of the British Parliament after which it is stated that for several centuries the dream of English youth and manhood of the nation-forming class has remained unchanged; it has been fixed and focussed on the House of Commons. 142. The last reference made by the Petitioner on this subject was to the judgment of the Supreme Court in State of U.P. v. Mohammad Nooh A.I.R. 1958 S.C. 86. In paragraph 11 of the A.I.R. report, it has been observed by their Lordships (after referring to the various authorities on the subject) as below: ...it appears to us that there may conceivably be cases... where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision.
Mohammad Nooh''s case did not relate to any privilege and no provision like Article 212 of the Constitution came into the picture therein. The considerations which weighed with their Lordships in that case cannot possibly be relevant to the judging of the validity or legality of proceedings of House of Legislature conducted within its four-walls relating to disciplinary proceedings against a member of their own. The House is the sole Judge of the lawfulness of its proceedings (May at page 821). To the same effect is the ultimate decision of their Lordships in Smt. Indira Nehru Gandhi''s case to which detailed reference has already been made. In the course of his Lordship''s judgment, Khanna J. observed in paragraph 180 of his judgment (at page 2343 of the A.I.R. report), (after referring to Article 122, which relates to Parliament, to which Article 212 corresponds in respect of the State Legislatures) that the framers of the Constitution were anxious to ensure that the procedural irregularities and other grounds like those mentioned in Article 100 should not vitiate the validity of proceedings of Parliament and that it would not be permissible to call in question those proceedings on such grounds 143. For all these reasons, I am of the opinion that if in spite of my findings against the Petitioner in respect of any irregularity at all having been committed on account of the expulsion having been ordered on January 8, 1975, on the basis of a privilege motion adopted by the House in December, 1973, after several prorogations of the House, it is found that there in fact was some irregularity, the same'' stands cured by Article 212(1) of the Constitution. 144. The next submission of the Petitioner in regard to the alleged illegalities need not detain us long. His submission was that the proceedings of the House were opposed to the principles of natural justice and whenever any punishment is imposed by any body or authority on any person in contravention of those principles, the same is liable to be struck down. He referred to in this connection to the following cases: (i) Smt. Indira Nehru Gandhi''s case (paragraph 305), (ii)
(iii)
(iv) State of U.P. v. Mohammad Nooh A.I.R. 1958 S.C. 96. All the judgments referred to above relate to principles for issue of writs in the nature of certiorari for quashing certain quasi-judicial orders. It is by now well-settled that even ordinary principles of natural justice can be overridden by statutory provisions whether they are legislative enactments or statutory rules. The Petitioner sought to derive some strength from certain observations of their Lordships of the Supreme Court in their opinion in the U.P. Legislature case to the effect that punishment for contempt is a judicial function. He argued that once it is held to be a judicial function it has to be exercised subject to the supervisory jurisdiction of the High Court and, therefore, in accordance with the principles of natural justice. No question of observance of principles of natural justice arose or was decided in the U.P. Legislature case. I do not, however, consider it necessary to dilate any further on this subject because I am unable to hold on the facts and circumstances of this case that any principle of natural justice was violated by the House. 145. What opportunity had or had not to be afforded to the Petitioner in connection with the privilege motion was for the Committee of Privileges and the House to decide according to the facts of the case. This Court is unable to interfere with the proceedings or findings of the Privileges Committee on, the ground that it did not permit the Petitioner to produce all the evidence which he wanted to produce. The Committee examined the Petitioner at length and this Court cannot control the discretion of the Committee to grant or riot to grant further adjournments to the Petitioner for production of any other evidence which he might have liked to give. In response to the notice received by him from the Privileges Committee, he submitted his reply dated November 22, 1973. Subsequently, lie submitted a detailed reply (copy Annexure P. 14) dated February 18, 1974 covering 92 foolscap typed or cyclostyled pages. It was thereafter that he submitted his application (Annexure P. 12) dated April 9, 1974, to the Secretary of the Vidhan Sabha wherein he asked for permission to lead evidence "regarding the mala fides of Ex-Speaker B.D. Gupta, Chief Minister Bansi Lal, Chairman of the Committee Shri Gulab Singh" and "to show that every word said in the two booklets on which the privilege motion is based is true". It is the non-grant of opportunity to produce the said evidence which, has been made the basis of the charge against the Privileges Committee for not allowing the Petitioner to produce his evidence. The only other evidence for producing which he sought permission in Annexure P. 12 was to show that the privilege motion did not actually raise a question of privilege. The only object of giving such an application appears to me to have been to embarrass and ex-asperate the Chairman and members of the Privilege Committee and to create a ground for a possible writ petition after a decision against him if the same were to be adverse to the Petitioner. Truth of the allegations constituting the breach of privilege and forming the basis of charge of contempt of the House against the Petitioner could not ordinarily be a good defence to the proceedings for contempt. Even before us, the Petitioner has on occasions tried to show that no question of privilege or contempt of the House could be raised against him if he could be permitted to show that every word of what he said in the offending publications was true. Truth of the allegations is, in my opinion, no better defence to contempt proceedings before a House of Legislature than it can be a defence to an action for libel or defamation in ordinary civil or criminal proceedings. Even otherwise the Committee of Privileges did deal with the Petitioner''s plea of truth and replied it on cogent grounds in its report. I have quoted that part of the report at pages 11 and 12 of the judgment. We cannot sit in appeal before that finding. 146. The next argument of the Petitioner relates to the civil suit of Dal Singh. A copy of the plaint of that suit has been placed on the record of this case by the learned Advocate-General. Dal Singh Plaintiff, a member of the Vidhan Sabha, has referred to the booklets P. 1 and P. 2 and alleged in the plaint that the comments of the Petitioner contained in those two booklets constitute grave reflections on all the members of the Vidhan Sabha, especially on the members of Congress (O) Legislature Party which has been the largest single group in the opposition. He has then alleged in paragraph 9 of his plaint that the two booklets, which were annexed to the plaint, were widely circulated by Hardwari Lal Defendant in Chandigarh, Delhi and throughout Haryana. In paragraph 10, Dal Singh stated that he has suffered not only irreparable loss in his agony, etc. for which he has claimed Rs. 100 as damages from reputation as a legislator and public man but also suffered mental Hardwari Lal Petitioner. Ultimately, a sum of Rs. 100 has been claimed by him as damages from the Petitioner. At the time of the consideration of the final report of the Privileges Committee finding the Petitioner guilty of contempt of the House and breach of privilege of the House and recommending his expulsion from the House, Dal Singh stated as below: On a point of order, Sir. I want to make a submission that you as well as Chairman of the Committee know that I have already filed a case of defamation in the court against Ch. Hardwari Lal, regarding these very books. That case is under trial... (noise and interruption)... If the House does not want to hear that, we have no objection but... (Noise. Interruption)....
Shri Gulab Singh Jain, another M.L.A., who was the Chairman of the Privileges Committee, replied to the objection by saying that the Committee was supreme. Thereupon, Mr. Speaker ruled out the objection by putting the question before the House. The plaint of the civil suit is dated January 4, 1974, that is, after the adoption of the privilege motion by the House on December 4, 1973, and during the pendency of the proceedings before the Privileges Committee. It has been suggested by the Advocate-General that the Petitioner may have himself got the suit filed in order to create a plea of the matter being sub-judice if the report of the Privileges Committee were to go against him. Be that as it may, the question whether the Petitioner was or was not liable to be dealt with by the House for its contempt or for breach of its privilege was neither a matter sub judice before the civil court nor could it be heard and decided by a court. The matters in issue before the House could not, therefore, be held to be sub judice. In this view of the matter, it is not necessary to refer to the various rules quoted by the Petitioner in this respect, though the only one out of those which appears to be relevant is Rule 100(2)(iv) which states that a member while speaking in the Assembly shall not refer to a matter of fact on which a judicial decision is pending. Even otherwise, the above-quoted rule creates a bar against a member referring to a sub judice matter in the course of his speech. No member of the House, except those trying to support the Petitioner, sought to refer to any judicial decision or pending judicial proceedings. The consideration of the subject-matter of a suit by the House is not prohibited by Rule 100(2)(iv). I have, therefore, no hesitation in repelling the objection of the Petitioner to the impugned resolution having been passed in violation of that rule. I would also add that even if Rule 100(2)(iv) had been violated and some members had made speeches relating to the subject-matter of a pending suit, the mere irregularity committed in violation of the said rule would not have invalidated the proceedings or rendered the decision of the House illegal. In any event, such an irregularity would have been cured by Article 212(1) of the Constitution. 147. So far as the Petitioner''s objection relating to the report of the Privileges Committee having been Considered during his absence from the House is concerned, no one except the Petitioner is to be blamed for it. The Petitioner admits that he was officially present in the sense that he had marked his presence but states that he had left the House after marking himself present on that day (January 8, 1975) as he was having some eye trouble and was not feeling well. Letter Annexure P. 13 written by the Petitioner himself to the Speaker of the House on January 8, 1975, also clearly shows that he was fully aware that the matter was being taken up in the House on that day. In that letter, he stated that he had been shown the agenda for the day and found that the report of the Privileges Committee against him was to be presented and considered that very day. He prayed for postponement of the consideration of the report on the ground that he had been operated upon for cataract and was under medical advice neither to read nor to take to public speaking for about two weeks. If he liked, he could have sat in the House and taken interest in the proceedings. The House was not bound to adjourn the proceedings and, in any case, this Court cannot interfere with the decision of the Speaker or the House declining the Petitioner''s request for adjournment. 148. Then comes the Petitioner''s last submission on this subject, i.e., the alleged violation of Rule 274(2) of the Rules. Rules 261 to 282 in Chapter XXII of the Rules lay down the procedure for dealing with questions of privilege and the Committee of Privileges. Rules 273 and 274 may be quoted at this stage: 273. The Report of the Committee of Privileges, with Minutes of Dissent, if any, shall be presented to the Assembly by the Chairman or in his absence by any-Member of the Committee. 274(1) After the report has been presented, the Chairman or any member of the Committee or any other member may move that the report be taken into consideration, whereupon the Speaker may put the question to the Assembly. (2) Before putting the question to the Assembly, the Speaker may permit a debate on the motion, not exceeding half-an-hour in duration, and such debate shall not refer to the details of the report further than is necessary to make out a case for the consideration of the report by the Assembly. (3) After the motion made under Sub-rule (1) is agreed to, the Chairman or any member of the Committee or any other member, as the case may be, may move that the Assembly agrees or disagrees, or agrees with amendments, with the recommendations contained in the report. An English translation, of the extract from the proceedings of Haryana Vidhan Sabha dated January 8, 1975, has been placed on the record of this case, besides the original official publication in Hindi containing the copy of the proceedings. The business to be transacted by the House on January 8, 1975, was first settled by the business Adviory Committee. It presented its fourth report (the time-table fixed by the Committee in regard to various items of business) to the House on January 8. Item No. 3 in the agenda settled by the Committee after some discussion on January 7. was. "Presentation and consideration of the final Report of the Committee of Privileges". After the first two items had been disposed of, Mr. Speaker placed before the House the question: "That this House agrees with the recommendations contained in the Fourth Report of the Business Advisory Committee". The motion was carried. This meant that no objection was raised to the presentation and consideration of the final report of the Committee of Privileges regarding the Petitioner''s case by any member at that stage. Shri Gulab Singh-Jain, the Chairman of the Privileges Committee, then moved that he begged to present to the House the report of the Committee of Privileges in question. He moved-- That the Report of the Committee of Privileges on the question of Privilege regarding casting reflections on the high office of the Speaker, the House and its members in the two booklets namely (a) A Chief Minister Runs Amuck--Indian democracy in danger and (b) Emergence of Rough and Corrupt politics in India--Anatomy of a Chief Minister written and published by Shri Hardwari Lal, M.L.A., be taken into consideration.
This motion was under the first part of Sub-rule (1) of Rule 274. Immediately thereafter, Mr. Speaker said that the motion had been moved and repeated the words of the motion. Thereafter objections to the immediate consideration of the report were heard and disposed of. Attention of the House was invited by Mr. Speaker to the provisions of Rule 274(1). The Speaker then permitted a debate on the motion in the following words: Mr. Speaker: I allow the discussion.... You can, discuss.
This order of Mr. Speaker permitting the debate was obviously under Sub-rule (2) of Rule 274. Reference has been made to half--an-hour discussion in the speech of Shri Amar Singh. From the length of the discussion covered by the proceedings of that day, it appears that it would certainly not have taken less than half-an-hour in any case. In these circumstances I am unable to hold that Sub-rule 20 of Rule 274 was in fact not complied with by the House. 149. This takes me to the last submission of the Petitioner about the resolution having been passed by the House mala fide. Three questions arise under this heading, namely: (i) Whether any resolution of the Vidhan Sabha can ever be mala fide and can the High Court in exercise of its writ jurisdiction hold it to be so? If the answer to the above question is in favour of the Petitioner, has the Full Bench judgment of the Punjab and Haryana High Court in Jai Singh) Rathi and Ors. v. State of Haryana and Ors. (supra) been wrongly decided on this point, and is, therefore, liable to be overruled? (ii) Whether on the facts of the case the resolution and decision of the Vidhan Sabha expelling the Petitioner was passed mala fide? and (iii) Even, if malice in fact is not proved, is the order of Petitioner''s expulsion from the House mala fide in law? 150. The only direct judgment on the question of the powers of the High Court to hold the vote or resolution of the Vidhan Sabha as mala fide is of the Full Bench of this Court in Jai Singh Rathi and Ors. v. State of Haryana and Ors. (supra). Jai Singh Rathi and three other members, of the Haryana Legislature filed a writ petition in this Court to quash the proceedings of the Vidhan Sabha during the course of which the writ-Petitioners were suspended for the remainder of the session. One of the grounds of challenge to the legality and validity of the order of their suspension from the House was that even if the Vidhan Sabha had the power to suspend a member, the exercise of that power in that particular case had been exercised mala fide and amounted to an abuse of the power and bad faith having regard to the sequence of events before and after the exercise of that power, as suspension was ordered with the ulterior object of ensuring a majority for the ruling party during the discussion and voting on the budget estimates of the appropriation bill. Some preliminary objections to the maintainability of the petition were taken on the side of the Respondents. One of the objections on merits was that Mr. Speaker and the Secretary of the Vidhan Sabha (Respondents 3 and 4 in that petition) were not amenable to the jurisdiction of the High Court because of Article 212(2) of the Constitution, and the Vidhan Sabha was supreme and had exclusive control and jurisdiction over all its internal affairs and was the sole judge of the lawfulness of its own proceedings, so that no part of its proceedings concerning the suspension of the Petitioners was justiciable in the High Court. The Full Bench upheld that objection. So far as the allegation of malice was concerned, Mehar Singh, C.J. (speaking for the Court) held as below: The last argument urged by Mr. M.C. Chhagla on behalf of the Petitioners was that the suspension of the Petitioners was mala fide, an argument which at least has not been comprehensible to me. If, as has been found to be the power and privilege of the Haryana Legislative Assembly, the House in exercise of such power and privilege suspended the Petitioners from the service of the House in a lawful and constitutional manner, how could the vote of the House be described as mala fide? How can any motive be attributed to the vote in the House? In my opinion the vote in the House of Legislature cannot ever be said to be mala fide.
The Petitioner contended that the Full Bench judgment of this Court in Jai Singh Rathi''s case (supra) has been wrongly decided and is liable to be overruled for the following reasons: (a) The Full Bench judgment goes contrary to the law laid down by the Supreme Court in the State of Bihar v. Sir Kameshwar Singh AIR 1952 SC 252 and to the authoritative pronouncement of their Lordships of the Supreme Court in His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (supra). (b) the Full Bench has confused "the Legislature" which is an institution with "the House" which is a compendious name for the members of the Vidhan Sabha attending it for the time being. It may be correct that malice cannot be attributed to the institution of a Legislature, but there is no bar to malice being attributed and found to have been the motive for a decision of the House. Even if it is held that malice cannot be attributed even to the House in respect of a piece of legislation passed by it, it can certainly be attributed to a decision imposing punishment in exercise of its penal jurisdiction. Even the process in the two cases is different; (c) the observations of the Full Bench are obiter dicta as the Court had in fact gone into the allegations of malice and had found them to be baseless and reckless. In view of those findings of the fact it was, therefore, not necessary for the Full Bench to decide the legal aspect relating to the jurisdiction of the Court or the liability of a resolution of the Legislature being declared to be mala fide in a suitable case, The Full Bench was influenced by the non-existence of mala fides as a fact and the above-quoted passage (paragraph 19 of the A.I.R. report) should be treated as a mere obiter and not binding; and (d) in any case the judgment of the Full Bench on the point in issue, is not judgment in the eye of law as it is not supported by any reasons, vide observations of the Supreme Court in His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (supra). 151. Kameshwar Singh''s case (supra) was concerned with the validity of the Bihar Land Reforms Act (30 of 1950). One of the contentions raised by Kameshwar Singh was that the impugned Act was a fraud on the Constitution and therefore, void. The precise allegation was that the Bihar Act while pretending to comply with the Constitution evaded and invaded it, that the Act merely pretended to comply with the Constitution when it said that it provided for payment of compensation, but in fact it had produced a scheme for non-payment of compensation by shift and contrivance. Their Lordships of the Supreme Court referred to the following observations in Westminister Corporation v. London and North Western Railway (1909) A.C. 426 at page 430: It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first.
and to similar observations in some other cases and held: All these principles are well-settled. But the question is whether they have any application to the present case. It is by no means easy to impute a dishonest motive to the legislature of a State and hold that it acted mala fide and malicipusly in passing the Bihar Land Reforms Act or that it perpetrated a fraud on the constitution by enacting this law. It may be that some of the provisions of the Act may operate harshly on certain persons or a few of the zamindars and may be bad if they are in excess of the legislative power of the Bihar Legislature butt from that circumstance it does not follow that the whole enactment is a fraud on the constitution. From the premises that the estates of half a dozen zemindars may be experopriated without payment of compensation, one cannot jump to the conclusion that the whole of the enactment is a fraud on the constitution or that all the provisions as to payment of compensation are illusory. At best they are illusory only in the case of some only of the large body of persons affected by it.
152. The law laid down by their Lordships in the above-quoted paragraph (paragraph 58 of the A.I.R. report) is of no help to the Petitioner, but he relies on the discussion in the succeeding paragraph (paragraph 59) of the judgment of the Supreme Court wherein Section 23(f) of the Bihar Act was held to be a colourable piece of legislation. It may, however, be remembered that the Supreme Court did not attribute any personal motive to the House or any of its members but found Section 23(f) to be a colourable piece of legislation only on the ground that the Legislature had no constitutional power to pass that law, in as much as the provision for payment of compensation had not been arrived at by laying down any principles of paying compensation, but was designed to deprive a number of people of their property without payment of compensation to them. This is what their Lordships held: The State legislature is authorised to pass an Act in the interests of persons deprived of property under Entry 42. They could not be permitted under that power to pass a law that operates to the detriment of those persons and the object of which provision is to deprive them of the right of compensation to a certain extent.
I am unable to find any support for the Petitioner''s proposition from the judgment of the Supreme Court in Kameshwar Singh''s case (supra). This Court has no doubt power to strike down a law wholly or partly on the ground that it is beyond the legislative powers conferred on the relevant Legislature under Articles 245 to 247 of the Constitution read with the Seventh Schedule thereto or on the ground that the relevant piece of legislation contravenes any other constitutional provision or violates any fundamental right of a citizen. On the facts of a given case it is possible to say that a piece of legislation which is liable to be struck down on any of the above-mentioned three grounds is a colourable piece of legislation. It has, however, neither been suggested nor held by their Lordships that even a law is liable to be struck down on the ground that the members of the House were led to pass the law by the Chief Minister or the object of passing the law was to cause harm to a particular member or to someone else. 153. The only manner in which the judgment of the Full Bench is said to go contrary to the observations of their Lordships of the Supreme Court in Kesavananda Bharati''s case is that it is not supported by any reasons. The Petitioner relied on paragraph 343 of that judgment wherein it has been said: Counsel sought to buttress this argument by citing views of learned American authors that the arguments against the validity of the 18th Amendment were brushed aside although no reasons are given. I have great respect for the Judges of the Supreme Court of United States, but unless the reasons are given for a judgment it is difficult to be confident about the ratio of the decision. Apart from the decision, I would be willing to hold the 18th Amendment valid if it had been enacted by our Parliament and added to our Constitution, for I would discern no such taking away of Fundamental Rights or altering the basic-structure of the Constitution as would place it outside the contours of the Preamble and the basic features of the Constitution.
It is no doubt true that a superior Court would always expect the Court below to support its decision with reasons, but the mere fact that the finding on a question of law in a judgment is not supported by distinct logical reasons does not by itself invalidate the judgment or result in the judgment being held to be liable to be overruled. I am also of the opinion that it is not quite correct to say that the Full Bench judgment on this point is not supported by any reasons. The observations relating to non-imputation of mala fides to the House have been preceded by a long discussion on the main point on merits agitated before the Bench to which I have already referred. All that is said in that connection is also to be read with the ratio of the judgment on the question of mala fides. Once that is kept in view it becomes obvious, that to hold on the one hand that if it is once found that the House has a privilege then the House alone is the judge of the breach thereof, and to hold on the other that though the House alone is the judge of the breach of its privilege the Court can still inquire into the intention or notice of the House in imposing the punishment would be irreconcilably contradictory. 154. In this view of the matter though the submission of the Petitioner to the effect that it is difficult to be confident about the of a judgment which is not supported by reasons is not without force. I find that sufficient reasons have been given by the Full Bench in support of its decision on the legal aspect of the question of mala-fides if the whole judgment is read together. It may be that the Full Bench has expressed its view on the point rather strongly and possibly too widely, but the core of the ratio of the judgment on that point cannot be disputed. 155. A novel argument was advanced by the Petitioner in support of his contention that the High Court can declare a decision of the Vidhan Sabha to be mala fide. He referred to the observations of the Supreme Court in paragraph 133 of the U.P. Legislature Case (A.I.R. report) wherein it is said that it was open to Keshav Singh to join the House as a Respondent in his writ petition on the ground that his commitment was based on the order passed by the House and in that sense the, House was responsible for, and had control over, his commitment. From this observation the Petitioner wished to infer that there would be no meaning in joining the House as a Respondent to a writ petition if. no decision of the House can ever be struck down. That may indeed be correct particularly in view of the findings recorded by me on the first main point argued by the Petitioner, but it does not by itself lend any support to the argument that the decision of the House can be held to be mala fide. Same applies to the argument of the Petitioner based on the following observations of their Lordships in the U.P. Legislature case (paragraph 137): 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 can it be said that the Court has no jurisdiction to make an interim order (for bail) in such proceedings.
Even while making the above observations their Lordships took care to make it clear in the succeeding paragraph that they were dealing with the question of jurisdiction and were not concerned with the propriety or reasonableness of the exercise of such jurisdiction. 156. The mere fact that the Supreme Court went into the allegations of mala fides in the course of its first judgment in Sharma''s case (supra) and found that there was no merit in the allegations in the course of the following observations does not in my opinion mean that if the question of the power of the Court to go into the bona fides of the Legislature had been raised before the Supreme Court, their answer would have been in the affirmative: In the affidavit in reply reference is made to certain issues of the searchlight indicating that charges were being made by the paper against the Chief Minister and the suggestion is that it is at the instance of the Chief Minister that the Committee has now moved in the matter. This is a new allegation. That apart, the Chief Minister is but one of the fifteen members of the Committee and one of the three hundred and nineteen members of the House. The committee of Privileges ordinarily includes members of all parties represented in the House and it is difficult to expect that the Committee, as a body, will be actuated by any mala-fide intention against the Petitioner. Further the business of the Committee is only to make a report to the House and the ultimate decision will be that of the House itself. In the circumstances, the allegation of bad faith cannot be readily accepted.
If the argument of the Petitioner about the above observations amounting to a finding to) give jurisdiction to the High Court to go into the bona fides of the decision of the House were correct, their Lordships would not have held in the very next paragraph (paragraph 34) that if the Assembly has the power and privilege it claims and is entitled to take proceedings for its breach (their Lordships held that the Assembly had such power) then it must be left to the House itself to determine whether there has in fact been any such breach or not. Similarly the mere fact that in
157. Nor does the distinction in the process for passing an enactment by the Legislature on the one hand and passing a resolution for punishment of a member for contempt or breach of privilege on the other make any difference in the decision of the point in controversy. The validity of a motion can be questioned before the Court on any one of the three grounds already referred to. The validity or legality of a resolution or decision for punishing a member of the House for contempt or breach of privilege is as already held by me, beyond the scope of inquiry by the High Court under Article 226. The House is the sole judge of these matters,--vide-- (i) May page 195; (ii) Raj Narain Singh v. Atmaram Govind and Anr. (supra); (iii)
(iv) Harendra Nath Barua v. Dev Kanta Barua and Ors. A.I.R. 1958, Ass 160; (v) Syed Abdul Mansur v. The Speaker West Bengal Legislative Assembly and Ors. (supra); (vi) M.S.M. Sharma v. Sri Krishna Sinha and Ors. (supra); (vii) Yeshwant Rao Meghawale v. Madhya Pradesh Legislative Assembly and Ors. (supra); (viii) Under Article 143 of the Constitution of India. In the matter of
(ix) Smt. Indira Nehru Gandhi v. Shri Raj Narain (supra); 158. The Petitioner also made reference to the following observations in the judgment of the Supreme Court in
We shall now proceed to deal with the second point urged before us viz., that the order was passed mala fide and so could not be allowed to stand. Before entering into the details of the allegations made, the evidence in their support and the inferences to be drawn therefrom, we consider it useful to state the principles underlying this branch of the law. The Service Rules which are statutory, vest the power to pass the impugned orders on the Government. The expression ''Government'' in the context is the functionary within the State who is vested with executive power in the relevant field. Of course, the Constitution vest the executive power in a State in the Governor but he is constitutionally directed to act on the aid and advice of his Ministers. In the case before us it is common ground that it was the Chief Minister who was incharge of the Health Department in which the Appellant was employed and it was, therefore, the Chief Minister as the Minister in charge of that portfolio who initiated these proceedings, though the formal orders of the Ministry were issued by the Secretaries, etc., of the Department in the name of the Governor. For the purposes of the present controversy the functionary who took action and On whose instructions, the action was taken against the Appellant was undoubtedly the Chief Minister-and if that functionary was actuated by mala fides in taking that action it is clear that such action would be vitiated. In this context it is necessary to add that though the learned Attorney-General at first hinted that he would raise legal contention, that even if mala fides were established against) the Chief Minister still the impugned orders could not be set aside, he did not further pursue the matter, but proceeded, if we may say so rightly, to pursuade us that mala fides was not made out by the evidence on record. Such an argument, if right, would mean that even fraud or corruption leaving aside mala fides, would not be examinable by a Court and would not vitiate administrative orders. As Lord Denning said in Lazarus Estates Ltd. v. Beasley 1956 All E.R. 341, page 345. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. In the circumstances we do not consider it necessary to deal with this aspect more fully or in greater detail. Nothing contained in the above-quoted passage from the judgment of the Supreme Court in S. Paratap Singh''s case applies to the jurisdiction of the High Court regarding punishment for contempt by a Legislative Assembly. Orders of a Court or judgment of a Court on the judicial side or orders of a Minister on the executive side stand on an entirely different footing from the resolution of a Legislative Assembly in exercise of any privilege of the Assembly under Article 194(3) of the Constitution once the existence and extent of the privilege is established. 159. The last submission made by the Petitioner in this respect was that once an allegation of malice has been made in a petition, it cannot be dismissed by the Court. For this proposition he relied on the decision of the Supreme Court in
160. Petitioner is no doubt correct that a decision of an authority may not be mala fide in fact but may be so in law as there is undoubted difference and distinction between malice in fact on the one hand and malice in law on the other as pointed out by their Lordships of the Supreme Court in
Every one must concede that a legislative body from its members and organisation, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamour, is not properly constituted to try with coolness, caution and impartiality a criminal charge, especially in those cases in which the popular feeling is strongly excited the very class of cases most likely to be prosecuted by this mode.
This cannot, however, help the Petitioner as the observations of the Supreme Court relate to the passing of legislative enactments by a legislative body, and not to any case of punishment for contempt or breach of privilege by the House. The other passages in that judgment (paragraphs 398, 591, 626 and 628) to which the Petitioner has referred do not appear to us to be relevant at all for deciding the point under discussion. 161. Besides relying on the Full Bench judgment of this Court in Jai Singh Rathi''s case, the learned Advocate-General also referred to paragraph 33 at page 412 of the A.I.R., report of the first judgment of the Supreme Court in Sharma''s case to which I have already made a reference. 162. In the light of the cases cited above it appears to me that though the proposition laid down by the Full Bench of the Punjab and Haryana High Court in Jai Singh Rathi''s case may be too widely stated in view of certain observations made by their Lordships of the Supreme Court in V.P. Legislature case, it would not ordinarily be possible for the High Court to attribute malice to the vote of the House of Legislature. Even the learned Advocate-General conceded in the course of his submissions on this point that though it is not easy to conceive of a case where the High Court will be able to hold the decision of the House to be based on extraneous reasons, it is not possible for him to rule out of imagination such a case. Whatever may be the legal position on the larger aspect of this question, there appears to me to be no doubt that on the allegations made in this case no inquiry can be held into the charges of malice because the allegations of mala fides have been made by the Petitioner only against the then Chief Minister and the Speaker and at best against the Chairman of the Privileges Committee and not against the House as a whole or against every member of the House. The worth and value of all those allegations are to be dealt with by me separately. 163. For the foregoing reasons I hold on the first point urged by the Petitioner in this respect that the High Court cannot decline to listen to allegations of mala fides against the House as a whole in an appropriate case and dismiss the petition containing those allegations at the threshold, but it is difficult to conceive of a case where the High Court would be able to hold that the decision of the Vidhan Sabha was actuated by malice of the whole House, particularly because it is not open to any Court to expunge, annul or declare invalid any vote, any speech or decision of a State Legislature on the ground that the vote was cast or decision arrived at or the speech was made mala fide. Such an attempt would amount to prohibited interference with the internal affairs of the State Legislature. On the factual aspect of the allegation of mala fides the Petitioner has submitted that: (i) Shri Bansi Lal (the then Chief Minister) got the Petitioner expelled out of his personal animosity though the House had not power to expel the Petitioner. (ii) Shri Bansi Lal aforesaid got the Petitioner expelled on account of his total hold on the then Speaker Shri B.D. Gupta (now the Chief Minister of Haryana) who also had his personal grievance against the Petitioner. Shri B.D. Gupta, succeeded in getting him expelled because he had his personal hold over Shri Gulab Singh Jain, who also had personal grudge against the Petitioner. (iii) The then Chief Minister had also his hold over the remaining nine members of the Privileges Committee. The Chief Minister also hold over the overwhelming majority of the members of the House; and (iv) Most of the members of the Vidhan Sabha are illiterate and were mere stooges in the hands of the then Chief Minister and were incapable of understanding the true import, content and meaning of the report of the Privileges Committee and merely voted in favour of the motion under the influence of the Chief Minister. 164. The Petitioner further urged that the Chairman and some members of the Privileges Committee were actively hostile to the Petitioner, the overwhelming majority of the members of the House were under the unshakable influence of Shri Bansi Lal and that these facts contributed and facilitated Shri Bansi Lal''s design to get lid of an irrepressible critic of the ways of his functioning as the leader of the House. The Petitioner then referred to the specific allegations made by him against Shri Bansi Lal and Shri B.D. Gupta in paragraphs 17 to 19 of his petition, along with the relevant annexure referred to therein. Before I go into the merits of those allegations, I must say that all those allegations are wholly irrelevant and appear to me to have been made only in order to embarrass the Chief Minister and Mr. Speaker of the House. The action to expel the Petitioner was not initiated by the Chief Minister, It was taken up on the notice given by some members of the House against whom no specific charge of malice has been made out. The Chief Minister did not even take part in the discussion of the privilege motion though he was present in the House. There is no proof of the two members of the Assembly, who moved the privilege motion, having been asked by the Chief Minister to do so having acted at his instance or instigation. The Chief Minister himself was not even a member of the Privileges Committee which went into minute details of the facts and law of the motion and submitted a reasoned and detailed report. There is no proof at all of the Chief Minister having influenced the vote of the members of the House. The resolution was passed by the House unanimously. The Petitioner deliberately kept himself out of the House on January 8. 1975, in spite of the admitted knowledge of the agenda of the day which included the report of the Privileges Committee. When I see the allegations made against the Chief Minister and Mr. Speaker of the Assembly by the Petitioner, I am tempted to repeat the observations made by Mehar Singh, C.J., and the note of warning struck by him in the opening part of the judgment of the Full Bench of this Court in Jai Singh Rathi''s case (Supra) to the effect that not only are the allegations made against these two persons irrelevant but the Petitioner was ill-advised to bring in those political matters with which this Court is least concerned and that the manner of using the forum of this Court for bringing before it political matters wholly irrelevant to the real controversy before the Court merely to embarrass the opposite party is clear indication of the irresponsible attitude of the Petitioner and his advisors, if any. I regret to note that though the Full Bench of this Court observed in Jai Singh''s case that it was hoped that this type of a thing shall not find repetition in future the Petitioner has frustrated that hope. Such attempts to make the Court a forum for ventilating the political grievances of political persons in their petitions under Article 226 of the Constitution has to be deprecated in the strongest language. It appears that no part of the extensive mud thrown by the Petitioner on the then Chief Minister has stuck and no amount of propaganda done by the Petitioner by publishing the two booklets in question has brought out any tangible result, and the said booklets have acted as a boomerang resulting in the Petitioner''s expulsion from the House. He has thought of making further malicious propaganda against the high-ups in his State with immunity by giving expression to his wrath and venom in the writ petition and trying to repeat it in the course of his address to the Court. The Petitioner cannot be congratulated for this attempt. Though all Hon''ble members of the Indian Legislatures are as respectable as the members of the House of Commons, I cannot refrain from observing the difference in the attitude of Mr. Peter Arther David Baker of the Commons, to whose case reference has already been made by me, on the one hand, and of the Petitioner on the other. The regret remorse and repentance expressed by Baker when he was on the verge of being expelled from the Commons and the humility with which he said in his letter that he could not ask for forgiveness but dared to hope only for pity and prayers of the House and merely asked for compassion to testify to his sorrow, is exemplary and commendable. On the other hand the Petitioner cannot be proud of the manner in which he has tried to belittle all the Hon''ble members of the Vidhan Sabha in his petition and still more in the course of his address before us by describing them as illiterate stooges and persons not capable of understanding the proceedings of the House. Though the hope of the earlier Full Bench of this Court has not fructified, I do wish and hope that at least now onwards there will be no repetition of such an attempt which most unjustifiably brings down the Hon''ble members of the most Hon''ble Houses of Legislature of our country into contempt in the eyes of the public. 165. On the merits of the allegations, the Petitioner first referred to his own letter dated July 15, 1968, addressed to the Chief Minister, copy of which is Annexure P. 17, making grievance of the alleged harassment caused to him and his supporters in Bahadurgarh and about the registration of a criminal case and praying for the immediate transfer of the Station House Officer of the Bahadurgarh Police Station and of the Superintendent of Police, Rohtak, who were alleged to have been troubling and insulting the Petitioner and his supporters. In the same strain the Petitioner referred to his letter dated December 30, 1969 (Annexure P. 18) addressed to Shri Bansi Lal, reminding the Chief Minister of the Petitioner''s earlier request for the sanction of a special grant for the development of the Vaish College, Bhiwani, to which the Petitioner had received only a routine reply from the Deputy Secretary (Education). The Petitioner has relied on the following passages in his own letter (Annexure P. 18) for proving his enmity with the Chief Minister: Besides, no less a person than the Vice-Chancellor of the Punjab University had written some time ago to say that you were annoyed with us, or at least with me. Now, as I have written to you earlier, the past has to be forgotton Your grievance against the Trust or myself regarding Ch. Deva Singh having contested the last election against you is also unjustified. The decision to contest the election was entirely his own. You always insisted on Mr. Banarsi Das Gupta being nominated to the Managing Committee (of the Vaish College). I was unable to arrange it. Rightly or wrongly, Seth Kirori Mal was not in favour of having him on the Managing Committee. I would beg you not to do anything to harm the institution being run and maintained by the Trust... If you want me to come to Chandigarh to discuss things with you, I am always prepared to undertake the journey. And I must say that you must let by-gones be by-gones. No other attitude would be proper in your present position. 166. In the Chief Minister''s D.O. letter dated January 5, 1970 {Annexure P. 19), the Petitioner''s letter Annexure P. 18 was acknowledged in so far as it related to the resumption of the library building and the part land by the Municipal Committee, Bhiwani. The Chief Minister said that he had passed on the Petitioner''s letter "to the Local Government Department for necessary action. 167. To say the least, neither the Petitioner''s own letter Annexure P. 17 giving vent to cetrain grievances against the Chief Minister, nor his most conciliatory communication Annexure P. 18, nor the Chief Minister''s innocuous demi-official reply Annexure P. 19 prove any kind of venom or animosity in the Chief Minister against the Petitioner. 168. The next set of communications to which the Petitioner referred are Annexures P. 28, P. 29, and P. 30. The first one of these, dated March 14, 1973, was addressed to Mr. Speaker wherein the Petitioner offered to give proof to the Speaker that the decision to derecognise him (the Petitioner) as the leader of the opposition, had been taken after the Petitioner had issued his first statement regarding the teacher''s strike and the Petitioner regretted that he had not been shown the courtesy which convention would have Mr. Speaker to show to ex-Ministers, etc., in the matter of seats in the house. The Petitioner also referred in that letter to the intercession by the Governor in connection with the Petitioner''s claim for allotment of an M.L.A. flat and complained that though Mr. Speaker had informed the Petitioner that no flat was vacant, in fact as many as five were in occupation of non-M.L.As. In paragraph 2 of the letter, the Petitioner had alleged that the Chief Minister was out to gag members who were not prepared to toe his line and that as the Speaker of the House, Mr. Speaker had to give to such members (who could not be gagged) generous support, if the House was not to cease to be a forum for free and unfettered discussion of public issues. In paragraph 3, the Petitioner suggested to Mr. Speaker that the latter should not accept the membership of Government appointed committees, because his membership was liable to be misunderstood and could embarrass the members. After saying that if anything creates the impression that the Speaker is under undue influence of the Government or is unable to protect the rights and privileges of the members who are person a non grata in the eyes of the Government, the fabric of parliamentary democracy would crumble, the Petitioner said, "If you have no objection, I would greatly like to send copies of this letter to the Governor and to the Speaker, Lok Sabha". Annexure P. 29 is letter dated March 29, 19173 from the Petitioner to Mr. Banarsi Das Gupta, the ex-Speaker of the House. He wanted to add insult to-the injury by stating that whatever he had said in his letter dated March 14, 1973 was based on provable facts and added that any member who could not please the Chief Minister must be prepared to be subjected to all kinds of humiliation and injustice. He then-hurled a threat in the following words: But this will only compel people like me to take to pamphleteering which will be beyond the control of the Speaker and the Chief Minister.
Annexure P. 30 is copy of the Petitioner''s letter dated May 10, 1973, to Shri Banarsi Das Gupta, the then Speaker of the Vidhan Sabha, making a grievance of not having been given a telephone to which he was entitled, and asking for allotment of a flat which was alleged to have been recently vacated by one Joginder Singh Advocate. 169. If enmity with someone could be proved by writing strongly worded letters to him, without any reaction on the part of the other side, the Petitioner could certainly be justified to claim that the Speaker was inimically inclined towards the Petitioner. But no evidence has been produced before us to show that Mr. Speaker took any strong exception to the somewhat strong language in which the Petitioner wrote to him. There could, therefore, be no question of any retort on the part of Mr. Speaker. 170. Our attention was also invited by the Petitioner to Annexure P. 41 dated August 2, 1970, wherein the Chief Accounts Officer of the Kurukshetra University wrote to the Petitioner that in the vacancy caused by the Petitioner''s resignation, Shri Banarsi Dass Gupta had been elected as a member of the Executive Committee (E.C.) of the University and it was a pre-planned affair. In that letter, the Chief Accounts Officer is claimed to have conveyed to the Petitioner as below: I attended the meeting of the court. After the meeting I happened to go to the room of V.C. (Vice-Chancellor) and I overheard a part of talk between the V.C. and Shri B.D. Gupta. Shri Gupta was asking the V.C. to make out some case or another against you and was assuring the V.C. on behalf of C.M. and his own behalf that he would get full support of Government in the matter. I am conveying this information to you to warn you. You will be cautious� Please destroy this letter after noting the contents. After all I am employee of the University and I am keen not to incur the wrath of the V.C. 171. Two more sets of communications were relied upon by the Petitioner, i.e.. Annexure P. 9 and P. 10 and Annexures P. 21 to P. 23. Annexure P. 9 is a copy of the letter dated November 16, 1973, from the Petitioner to Shri Bansi Lal. This is after the privilege motion had been carried and referred to the Privileges Committee. The allegations made therein against the Chief Minister about his having positively made up his mind to remove the Petitioner or to commit him to prison, or to obtain a unanimous decision of the House in accordance with his wishes, are all afterthoughts. In paragraph 3 of his letter, the Petitioner wrote to the Chief Minister: May I once again request you not to destroy all standards of conduct and fairness? I do not dispute that you command complete obedience of the members of your party, none of whom dare oppose you in any matter, in the open and also obedience of the majority of the members sitting in the opposition�. But do whatever you might, you may be sure that I am determined to fight you. with all the strength at my command, because you personify political gangsterism.
Annexure P. 10 is a copy of the communication sent by the Petitioner to the Privileges Committee on November 21, 1973. In that letter he wrote to the Committee that he had a right to persuade the Committee and the House that whatever has been said in the two booklets is a commentary on Mr. Bansi Lal�s methods of work and conduct and does not in any way constitute contempt of the Speaker or of the House. The ultimate prayer of the Petitioner in that letter was for grant of at least six weeks time for the submission of his written reply. 172. Annexures P. 21 to P. 23 dated September 12, 1971 to September 20, 1971 contain the correspondence between the Petitioner and the Sub-Divisional Officer (Civil), Bhiwani. In the Petitioner''s letter Annexure P. 21 to the Sub-Divisional Magistrate, a request was made to direct the Municipal Committee and the local police not to interfere with the functions of the Kirori Mal Public Library. Annexure P. 22 is the acknowledgement of the Sub-Divisional Magistrate wherein he stated that the matter was being looked into. In Annexure P. 23 the Petitioner acknowledged the Sub-Divisional Magistrate''s letter with gratefulness and claimed that "the gang headed by L. Bhagirath Mal and aided by the local police" had taken forcible possession of the institution. It was alleged by the Petitioner that the administration had taken active interest in the violation of law and that all this had been done at the instance of Shri Bansi Lal. 173. In the Petitioner''s own explanation to the Privileges Committee (Annexure P. 14) he has stated at page 162 (of the paper book) as below: I have not said that the Assembly has been moulded. And when I use the word ''Assembly'' or Vidhan Sabha, here or anywhere else, I refer to the members who support Mr. Bansi Lal and who being in majority can carry out any measure brought before the House.
174. It was on the basis of the above-mentioned documents, to which reference has also been made in the body of the petition, that the Petitioner argued that the Chief Minister and Mr. Speaker were inimically inclined towards the Petitioner. After seeing all this correspondence, it appears to me that the Petitioner is merely imagining a reflection of his own mind. Though there is no doubt that neither the Chief Minister and Mr. Speaker could have any particular love lost for the Petitioner after he had unjustifiably used sufficiently strong language against them in all possible contexts, it is impossible to presume that such responsible officers would stoop down to harm the Petitioner merely because he wrote to them in a somewhat irresponsible strain. The allegations made against both of them have been emphatically and unequivocally denied by them in their respective affidavits. There is no reason whatever to doubt the sworn testimony of the then Chief Minister and Mr. Speaker. The Petitioner appears to have created shadows of which he himself got afraid. The evidence produced before us does not justify any inference of malice at the hands of Shri Bansi Lal or Shri Banarsi Dass Gupta against the Petitioner. By making wanton allegations against the head of his own institution (the Speaker of the Vidhan Sabha of Haryana) and the Chief Minister, the Petitioner has not displayed that sense of responsibility which should normally have been expected from an Hon''ble Member of the House. I, therefore, hold that the Petitioner has miserably failed to make out any possible case of any malice against the Chief Minister and Mr. Speaker for having been responsible either for the privilege motion having been moved against him or for his expulsion. 175. The following grounds were alleged for making out a case of malice in law: (i) Except for six or seven members of the House, all other members of the Vidhan Sabha had either been intimidated or appeased by the Chief Minister as is evident from the letter Annexure P. 11 written by the Petitioner to the Secretary of the Vidhan Sabha. (ii) Though the Chief Minister was at the back of the whole action, he neither piloted the privilege motion, nor supported the motion for his expulsion by speech, and his silence speaks volumes. Though the silence of the Chief Minister on both the occasions is most eloquent, he bragged outside the house about his having got the Petitioner expelled; (iii) The members supporting the motion for Petitioner''s expulsion did not say what was the contempt and why the Petitioner should be expelled. In fact, most of the members were illiterate who could not understand either the contents or the implications of the report of the Privileges Committee; (iv) The procedure adopted by the House in expelling the Petitioner had no sanction of law or of parliamentary practice. (v) The manner in which Mr. Speaker hustled through the proceedings on January 8, 1975, showed that he wanted the House to consider the Privileges Committee''s report without any one having any opportunity to read it or to understand it. (vi) The evidence recorded by the Privileges Committee was not produced by it before the House so that the House could satisfy itself about the merits of the report. Mr. Speaker did not permit the members to acquaint themselves with the contents of the report on which they were asked to take decision. (vii) This was a case of total non-application of mind and arbitrariness which partakes of the nature of malice in law. (viii) Mr. Speaker did not allow any debate on the substantive motion and the ruling of Mr. Speaker was totally illegal and contrary to principles of natural justice which are applicable to proceedings of the House in exercise of its penal jurisdiction; and (ix) The Petitioner was not heard by the House in spite of his specific request in annexure P. 13 to get an opportunity to have his say and for an adjournment on account of his physical incapacity. 176. I have already dealt with most of the points referred to above in different contexts at different places. I have also found as a fact with reference to the relevant rules framed by the Vidhan Sabha under Article 208(1) of the Constitution for privilege motions that none of those statutory rules was violated. No one can have grievance about the majority of the House being with the Chief Minister. If that were not so, the member concerned would cease to be the Chief Minister immediately. If the majority is not behind the leader of the House, his Government is bound to fall any moment. It is too much for the Petitioner allege that merely because all the members of the House were not as well-educated as the Petitioner would expect them to be, they were not capable of understanding the proceedings in the House. I am not prepared to agree to this. There is no material on, our record to hold that most of the members of the Vidhan Sabha were illiterate. The Petitioner wanted to show us an official publication: "Who is who." containing particulars and educational qualifications of all the members of the Vidhan Sabha. That is not relevant for us as no rule lays down any minimum educational qualifications for members of a State Legislature. All members of the House are entitled to the same rights and respect irrespective of their education, comperative intelligence or position in society. If only highly educated persons were to be chosen as members of our Legislatures, they would not truly represent our masses, majority of whom are still not very literate. A Legislature represents the people of the State. It must, therefore, reflect their image. It has to speak and act for the people in whom the real sovereignty resides in a democracy. Its members cannot be different from its electrorate. An official copy of the proceedings of the House has been placed in record. An English translation thereof is also on the record, as stated earlier. A careful reading of those proceedings shows that there was no arbitrariness in the proceedings. After-all, contempt proceedings or those for breach of privilege in a Legislature cannot adhere or conform to the strictly technical procedure of a Court of law. The Petitioner chose to absent himself from the House on the crucial day. He cannot blame any one for it. For all these reasons, I hold that the Petitioner has not been able to make out even a case of malice in law in the matter of his expulsion. 177. No other point was argued before us by the parties. 178. This petition must, therefore, fail and is accordingly dismissed with costs. Counsel''s fee Rs. 1,000. December 22, 1976. (Sd.) R.S. Narula,
Chief Justice. Note: To be contd. in the next part. 28363 ILR--Govt. Press, Chd. S.S. Sandhawalia, J. 189. Almost intuitively the Motion Bench recorded the following order whilst admitting this writ petition on the 26th of March, 1975: Significant constitutional issues are raised. Admitted to a Full Bench of five Judges. The right of the people to representation in the Legislature is involved and, therefore, the matter does not brook of any delay. The Respondents shall file their returns by the 25th of April, 1975. Mr. Kaushal undertakes to file his return on the 18th of April, 1975. To be listed on the 28th of April, 1975. actual. No stay at this stage only.
190. The fond hope of avoiding delay stands belied by factors too numerous to be recounted here. However, in the wake of the above-said order has ensued a memorable and marathon legal battle fought with great erudition and forensic skill on either side--not once but twsce over because the Bench originally hearing the petition had inevitably to be reconstituted owing to the transfer of two of its members. 191. In the ultimate analysis, the facts herein would recede into relative insignificance whilst the pristine legal and constitutional issues emerge to the fore. Nevertheless some brief reference to the background of the case becomes inevitable at the outset. It would, however, be unnecessary and even wasteful to get bogged down in the morass of the hundreds of pages of type-script which have accumulated on the record of this case. Indeed, any attempt to advert to them in detail would merely shift the focus of attention from the legal questions which primarily call for determination herein. 192. Hardwari Lal, writ-Petitioner, undoubtedly is the stormy petrel of Haryana politics. He has had a chequered personal and political career. Beginning life as a member of the Civil Service in the former composite State of Punjab, he resigned therefrom to first stray into the field of education. After having been associated with the various educational institutions set up by the Seth Karori Mal Trust of Bhiwani, he ultimately climaxed to serve as the Vice-Chancellor of the newly set up Kurukshetra University in Haryana. According to him, in 1962 he resigned the Vice-Chancellorship to enter the Punjab Assembly for the alleged altruistic purpose of providing the State with a clean administrative and political system. It is his claim that he along with others more distinguished had campaigned against the oppressive misrule and the abuse of power by the late Shri Partap Singh Kairon and thereafter by some of his successors. The new State of Haryana came into being on the 1st of November, 1966, and the writ-Petitioner was elected afresh to the Haryana Assembly on the ticket of the Congress Ruling Party in February, 1967. He was included in the first Cabinet headed by Shri Bhagwat Dyal Sharma the Chief Minister and held the portfolio of Education. He claims that in rank he was given a position next to the Chief Minister within the Cabinet. As is well known, this Ministry was short-lived and was brought down in March, 1967. In the resultant split in the Congress Ruling Party in the Haryana Legislature, the writ-Petitioner defected from the Congress Party to join the United Front Ministry headed by Rao Birendra Singh. The Petitioner claims that he was the solitary example in the country of a legislator who resigned his Assembly seat when he changed his political loyalties and sought the mandate of his constituency afresh in May, 1967, when he was re-elected with a large) majority. Rao Birendra Singh''s Ministry also proved to be short-lived and fell with the dissolution of Haryana Assembly on the 21st November, 1967. In the mid-term poll which followed in May, 1968, the Petitioner was the President of the Swatantra Party within the State and successfully campaigned for his own re-election from the Bahadurgarh Constituency. Later he was elected again therefrom in the year 1970 and lastly in the year 1972. 193. The voluminous pleadings filed on behalf of the writ Petitioner (along with the annexures attached thereto) and the writ petition itself contain a long tirade directed against the then Chief Minister of Haryana, Ch. Bansi Lal, Respondent No. 4, and even his successor Shri Banarsi Dass Gupta, Respondent No. 5, the Hon''ble Chief Minister of Haryana now. The burden of the song of the writ-Petitioner herein is that almost from the mid-fifties there existed an inveterate hostility betwixt the writ-Petitioner and Ch. Bansi Lal except for a very short interregnum. On the Petitioner''s own showing, there was a spell of reapproachment betwixt them and rather curiously the case appears to be that Ch. Hardwari Lal was accorded recognition as the Leader of Opposition with the tacit support of Respondent No. 4. It is, however, not in serious dispute that this alliance was very short-lived and the writ-Petitioner was soon unseated from the status of the Leader of Opposition in the Assembly and consequently deprived of the amenities and privileges which were attached to that office. According to the writ-Petitioner, the relations between him and Respondent No. 4 thereafter seem to have followed a continuous path of deterioration bordering sometimes on serious personal bitterness. Without more, it is obvious that, though perhaps colourful, the writ-Petitioner is certainly a deeply controversial political personality in the. State of Haryana. 194. Ranged on the other side is the powerful political figure of Ch. Bansi Lal, Respondent No. 4, who bestrode the political scene like a colossus from the time of his election as the Chief Minister of Haryana in early 1968. Within the short period of less than a decade he nursed the infant State from almost chaotic conditions to a position of pre-eminence within the country. He has thereafter moved on to the larger vistas of the national political scene. 195. From the clash of these colourful political personalities, however, emerges a purely legal and constitutional question. This may be formulated in the following terms: Whether under our Constitution the State Legislatures in India have the power and the privilege of expelling by majority one of their duly elected members as a measure of punishment for the contempt of the House, its Speaker, or its members?
The facts which directly give rise to the aforesaid question are in a relatively narrow compass. Admittedly the writ-Petitioner in March, 1973, authored and published the pamphlet (Annexure P. 1) titled as "A Chief Minister runs amuck--Indian Democracy in Danger". A reference to its contents leaves no manner of doubt that it is an unabashed attack both on the political and personal career of Respondent No. 4. It is the writ-Petitioner''s allegation that pressure tactics were used against him to dissuade him from persisting with such like publications. However, according to him, the Haryana Assembly was actually in session in March, 1973, when the aforesaid booklet was published and thereafter had met again in June, 1973, but no issue of privilege regarding its publication was ever raised though the same had been widely circulated. Persisting in his attack, the writ-Petitioner in September, 1973, brought out a more detailed booklet (Annexure P. 2) titled as "On the Emergence of Rough and Corrupt Politics in India (Anatomy of a Chief Minister)". This again contained a venomous and scurrilous attack on the personality of Respondent No. 4. Not only this, the Petitioner persisted in his path of relentless opposition and announced that he would bring out a Hindi version of the document for wider publication and circulation within the country. 196. In the ensuing session of the Haryana Vidhan Sabha, two members thereof gave notice of a privilege motion (Annexure P. 5) against the writ-Petitioner on the 12th of November, 1973, alleging that the aforesaid two booklets contained extremely derogatory remarks against the Hon''ble Speaker, the House in general and the members of the Vidhan Sabha, thereby lowering all of them in the Public image. A number of extracts from the aforesaid two booklets were quoted in, the privilege motion itself and a prayer was made that the matter should be referred to the Privileges Committee at once for examination and report. According to the writ-Petitioner, the movers of the motion had sprung it as a surprise on the House, and it was presented after he had left the Assembly Hall on that day. After some discussion, the House referred the aforementioned question of privilege to the then existing Committee of Privileges for its examination. It is the allegation of the writ-Petitioner, however, that the members of the said Privileges Committee were personally ill-equipped to deal with a matter which involved erudite and complex questions of the parliamentary privilege of the House of Commons. IT is his further allegation that the composition of the Committee was biased against him in the beginning, and during nearly fifteen months for which the matter remained pending for consideration with the Privilege Committee its membership changed with further adverse results to the Petitioner. In passing it may be mentioned that the Petitioner had sought to challenge the very admission of the privilege motion against him in the House through Civil Writ No. 265 of 1974, but this Court declined to give him relief at that stage, vide its order dated the 21st January, 1974, on the ground that the said writ-petition was premature. 197. The writ-Petitioner forthrightly admits the authorship and publication of the two booklets (Annexures P. 1 and P. 2). However, he has chosen to allege a number of illegalities in the proceedings that followed the reference of the motion to the Privileges Committee, It is his case that the aforesaid booklets were directed entirely against Respondent No. 4, and no contempt of the House, its Speaker or Us members was either intended or made out. The extracts quoted by the movers of the motion are alleged to have been torn out of their context and even as such are averred to be not amounting to any contempt whatsoever. It has then been alleged that the movers of the privilege motion were examined by the Committee but purposely in the absence of the Petitioner in order to deny him the opportunity of cross-examining or putting any questions to them. According to him, he submitted to the Privileges Committee two detailed written explanations which ran, into nearly hundred typed pages and comprising a full and conclusive defence for the Petitioner. The Petitioner had persistently claimed the right to produce evidence before the Privileges, Committee but this, according to him, was in terms denied by it. According to him, the Privileges Committee withheld from the House as a body both the written explanations which he had filed before it and instead produced a most brief, garbled and misleading version of these explanations in its final report. The Privileges Committee finalized its report (Annexure P. 6) on the 7th of January, 1975, and it is the case that this was done entirely behind the Petitioner''s back and it was planned to consider and adopt the report the very following day. The Petitioner alleges that accordingly the report was placed before the House without any prior notice whatsoever and it was only on the 8th of January, 1975, itself that it came to his notice from the agenda that it was to be taken up. Whereupon he forthwith wrote to the Speaker, vide Annexure P. 13. about his inability to attend the House and requested him to postpone the discussion of the report in order to enable him to defend himself before that august body. This request went unheeded and the report of the Committee including its recommendations that the Petitioner should be expelled from the House was considered entirely in the absence of the writ-Petitioner and without any notice to him. 198. As regards the actual proceedings of the House of the 8th of January, 1975, the writ-Petitioner alleges that the opposition groups within the House strenuously pleaded for the postponement of the consideration of the report in order to enable them to go through the same. It was repeatedly pressed on their behalf that the detailed report of the Privileges Committee (running into 22 typed pages) had not at all been circulated amongst the members of the Vidhan Sabha and all of them were totally unaware of even its contents. It is also the case that the report of the Privileges Committee was not placed on the table of the House as was the requirement of the law according to the Rules of Procedure and Conduct of Business in the Haryana Legislative Assembly. The other objections like the matter being sub judice etc. and the absence of the writ-Petitioner were also raised but not heeded to. When the motion containing the final resolution was sought to be moved, a point of order was raised that it had not even been placed on the agenda of the House and the requisite two days notice therefor had not been given at all. It is the case of the Petitioner that the Hon''ble Speaker apparently under a patent misapprehension of Rule 274 of the Rules of Procedure allowed only half an hour for the discussion, consideration and adoption of the report and, in fact, the proceedings in all did not take more than 25 minutes. The opposition groups finding themselves totally out-numbered in the House thereupon staged a walk-out in protest. In their absence, the report of the Privileges Committee was accepted and the following motion was unanimously carried: That this House, this day, the 8th January, 1975, resolves that Chaudhari Hardwari Lal, a member of this House, having been guilty of a grave contempt and breach of privilege of this House, its members and the Speaker, be expelled from this House and his seat in the House declared vacant.
199. This was implemented by a formal Notification of the Haryana Vidhan Sabha Secretariat on the same day, which is in the following terms: Haryana Vidhan Sabha Secretariat Notification, the 8th January, 1975. No. HVS-LA-19/75/2--Consequent on the adoption of a motion by the Haryana Vidhan Sabha on the 8th January, 1975, expelling from the House Shri Hardwari Lal, Member elected to the Haryana Vidhan Sabha from 45 Bahadurgarh Assembly Constituency, he has ceased to be a Member of the Haryana Vidhan Sabha with effect from 8th January, 1975 (forenoon). Raj Kumar Malhotra, Secretary. A copy of the aforesaid Notification was forwarded to the Secretary, Election Commission of India, for information and necessary action with the further request that steps be taken to fill the vacancy of Shri Hardwari Lal from 45--Bahadurgarh Assembly Constituency. 200. It is the aforesaid resolution of expulsion and the consequent issue of the notification and the declaration of his seat as vacant which is sought to be challenged on a variety of wide-ranging grounds on behalf of the writ-Petitioner. As would appear hereinafter, it may perhaps be not necessary to advert to all or each of these reasons but in fairness to the Petitioner, it deserves notice that he challenges the action of the Haryana Vidhan Sabha to expel him on the following grounds: (i) that the Vidhan Sabha had no power or jurisdiction to expel the Petitioner because the British House of Commons also claimed no power or privilege on the material date to expel a member in a situation similar to that of publication of the booklets, annexures P. 1 and 2 by the Petitioner; (ii) that the onus to show or prove that the power or privilege of expulsion was claimed by the House of Commons on the 26th of January, 1950 and was recognised as such by the English Courts was clearly on the Vidhan Sabha. The Vidhan Sabha had not even clearly claimed of asserted that it has any power to expel on the basis oi the later part of Article 194(3) of the Constitution: (iii) that the House of Commons never claimed the power or privilege to punish or expel a member of the House for the criticism of its Speaker or members for extra curricular activities which had nothing to do with the Speaker''s functions in the House, or with the actual transaction of business before the House or its proceedings. There is no material in the privilege motion (Annexure P. 5) or in the report of the Privileges Committee to show that any such power vested in the House of Commons on January 26, 1950; (iv) that even if the House of Commons has the power of expulsion it stems entirely from its peculiar privilege of regulating or providing for its own constitution. The Haryana Vidhan Sabha on the other hand admittedly has no power to provide for or regulate its own constitution and, therefore, the power of expulsion cannot descend to it under Article 194(3) of the Constitution; (v) that it is a total misconception on the part of the Vidhan Sabha to claim for itself all the privileges and powers and immunities of the House of Commons which it enjoyed in 1950 on the basis of Article 194(3). There are numerous powers, privileges and immunities of the House of Commons which in the very nature of things cannot possibly descend to or be claimed by the Vidhan Sabha; (vi) that Article 194(3) of the Constitution cannot be construed or read in isolation and has to be interpreted in conformity with the provisions of Articles 172, 189, 190, 191, 192, 193, 327, 328 and 329. When so read, Article 194(3) cannot confer the power or, privilege of expulsion on the Vidhan Sabha; (vii) that expulsion of a duly elected member amounts to the subversion of the rights of his electors and to their disenfranchisement. Expulsion, therefore, comes into direct conflict with the principles of representation enshrined in Articles 170, 172 and 326 of the Constitution and therefore, the resolution of expulsion is utterly unconstitutional and void; (viii) that the Assembly''s decision to expel the Petitioner and to declare his seat vacant directly conflicts with and violates the provisions of Articles 190, 191, 192 and 329 which constitutes a self-contained and exhaustive code for the vacation of the seat and the disqualifications of members in the State Legislatures; (ix) that the Petitioner''s term of membership is governed entirely by Article 172 of the Constitution and the only express exceptions to this Article are the provisions of Articles 190, 191 and 192 of the Constitution and no fresh exception thereto can be created by expulsion; (x) that the principle of representation is one of the basic structure and framework of the Constitution because it is one of the essential components of the democratic form of Government. The power of expulsion by the Vidhan Sabha is, therefore, unconstitutional and void because it goes, against the preamble of the Constitution and the aforementioned basic structure thereof; (xi) that the Vidhan Sabha had condemned, the Petitioner without hearing him. Whilst considering the report of the Privileges Committee, the Vidhan Sabha functions not as a legislative body but as a quasi-judicial body and is under ah obligation to conform to the rules of natural justice and to the norms of the judicial procedure; (xii) that the writ-Petitioner was unavoidably absent from the House when the report of the Privileges Committee way considered and he was not afforded any opportunity to defend himself at all. Even his written explanation was not placed before the House because the Privileges, Committee had withheld it therefrom; (xiii) that under Article 194(3), it would be incumbent on the Vidhan Sabha to follow the established norms of procedure of the House of Commons in the absence of express rules framed therefor by itself. The Vidhan Sabha did not follow the enjoined procedure of the House of Commons and its proceedings, therefore, stand vitiated on that account; (xiv) that the rules of procedure and conduct of the business framed by the House in terms provide a reasonable debate on every motion coming before the House. In the Petitioner''s case there was no chance of any reasonable debate and there was actually no reasonable debate and the proceedings, therefore, stand vitiated on that account; (xv) that the Vidhan Sabha is not the sole judge of its own powers and privileges for which the only source is Article 194(3) of the Constitution, which must be construed by and interpreted, judicially by the higher Court; (xvi) that no contempt whatsoever of the House,-the Speaker or its members is made out from the contents of or the extracts from annexures P. 1 and P. 2. These are merely fair criticism by a citizen against public authorities whose actions affect his rights. The publication in question having been made outside the House cannot make the writ Petitioner liable to any punishment at the hands of the House under Article 194(3) (xvii) that the offending booklets P. 1 and P. 2 were merely a criticism of the style of Government and of the Chief Minister of Haryana which in no manner could amount to a contempt of the House or its members; (xviii) that the power of expulsion, if granted, to the Vidhan Sabha would be capable of gross abuse because the bare majority could use the same to get rid of its vocal opponents on flimsy pretexts and trumped-up breaches of privileges. Thus a cleat abridgement of the House could be effected in the name of its purported power to expel one of its duly elected members; (xix) the expulsion of the Petitioner is mala fide and has been done entirely at the behest of Respondent No. 4 owing to his inveterate political hostility. 201. Apart from the above, the writ-Petitioner had at the stage of the presentation of the petition assailed his expulsion on various grounds resting on the violation of Articles 14 and 19 of the Constitution. However, in view of the promulgation of the Emergency at the time of the hearing he scrupulously avoided reference to them and did not address any arguments thereunder. 202. Despite service no appearance was put in on behalf of the Election Commission of India and the Haryana Legislative Assembly, Respondents Nos. 1 and 2 respectively. The learned. Advocate-General of Haryana, however, appeared for the Secretary of the Haryana Legislative Assembly, Respondent No. 3 and Shri Bansi Lal, the then Chief Minister, Respondent No. 4, Shri Banarsi Das Gupta, the former Speaker of the Haryana Vidhan Sabha, Respondent No. 5 and for the State of Haryana, Respondent No. 19. He brought it to our notice that Respondent NQ. 2, the Vidhan Sabha did not wish to submit to the jurisdiction of this Court and was, therefore, not putting any appearance. Further no appearance was put in on behalf of the members of the Privileges Committee who had been duly impleaded and some of the Legislators of the Assembly. The writ-petition consequently was heard ex-parte against Respondents Nos. 1, 2 and 6 to 18. However, on the merits of the controversy, written statements were filed separately by Respondents Nos. 3 to 9, 11, 13 and 16. 203. In the return of the Secretary of the Vidhan Sabba, Respondent No. 3, a number of preliminary objections have been taken. It is claimed that the privilege and the power of Legislature to expel one of its members is well established, absolute and beyond question and therefore the action is not challengeable. It is also claimed that any matter touching the conduct of the members and the Speaker of the House can be examined and adjudged in the House alone and not elsewhere. On the point of the High Court''s jurisdiction, it is the stand that only the existence of the power and the privilege of the House can form the subject-matter of enquiry and hot its extent or application. Objection is taken that the writ Petitioner cannot assail the vote in the House on the ground bf the same being mala fide or because the members of the privileges Committed had inadequate academic qualification or that his relations with the Chief Minister or other members of the House were strained. It is in terms pleaded that the question whether the Petitioner was not afforded any opportunity of defending himself cannot be made the subject-matter of enquiry by the High Court. Lastly the claim is made that the Legislature is supreme and the Speaker and the members thereof are not subject to the jurisdiction of the Courts and they cannot be summoned to answer the allegations made-by the writ Petitioner. 204. On merits, the stand taken by Respondent. No. 3 is. that the power and privilege to expel a member of, the House was fully vested in the House of Commons on January 26, 1950 and consequently the same descends to the Indian Legislatures as well. It is averred that the exercise of this power or privilege is unrelated to the privilege of the House of Commons to provide for its own Constitution and since there is no doubt about the existence or extent of the power of expulsion, the High Court''s jurisdiction to examine the matter beyond that is barred. 205. Respondent No. 4 the then Chief Minister of Haryana in his written statement has taken up an identical stand as Respondent No. 3 on the issue of preliminary objections and merits and, In addition thereto has emphatically denied the charge of mala fide against him. A prayer has in terms been made that some of the allegations therein are scandalous and that these should be struck off. A similar, if not identical position has been, taken on behalf off Shri Banarsi Das Gupta, the present Chief Minister of the State of Haryana and former Speaker of the Vidhan Sabha. The stand and the pleas taken up on behalf of the remaining Respondents do not appear to me to require explicit mention. 206. Before I advert to the merits of the case it is perhaps best to dispose of an application moved on behalf; of Respondent No. 4 under Order 6 Rule 16 read with Section 141 of the Code of Civil Procedure for striking out certain allegations made in the writ petition. The primary grounds urged in this application are that the scope of enquiry by this Court into a case in which expulsion from the House is challenged, by a member can possibly extend only to the determination-of the question whether or, not in terms of Article 194(3) of the Constitution, the Legislature of the State possessed the power and the privilege to direct expulsion. Further that no mala fides could conceivably be attributed the vote of the House or any of its members nor the vote of the House could be described as mala fide, that the expulsion of-the Petitioner was a result of the motion carried unanimously by the members, of the Legislature; that the Petitioner had made allegations, in this petition in order to prove his strained; relations with Respondent No. 4 and some of the members of the House; that the said, allegations are scandalous and are unnecessary and irrelevant to the limited scope of the enquiry to be made in this case and, therefore, these had been deliberately made with a view to prejudice, embarrass and delay the fair disposal of the writ petition. 207. A separate application Civil Miscellaneous No. 1172 of 1975 in Civil Miscellaneous No. 1163 of 1975 has then been moved praying for permission to place on record a statement showing the paragraphs of the petition which contained unnecessary, irrelevant and scandalous allegations against Respondent No. 4. Along with this application the relevant statement has been duly attached. 208. The Petitioner filed a detailed reply to the aforesaid application in Which the allegations (alleged to be scandalous) made in the petition, have been supported. It has also been averred that all these allegations were most relevant in order to determine the real point in the controversy and that no allegation could be struck out. The application was considered by the Bench almost at the close of the Argument on merits. The learned Advocate General of Haryaha appearing for Respondent No, 4 at that stage limited his stand to striking, out the allegations which read as under: (i) Part I para 3 of the petition--wherein it had been stated but the Petitioner was familiar with his shady back ground; (ii) Part I, para 7, the words comparatively unknown and possessing an extremely shady background; (iii) Part I of para 10 wherein it is stated--when he started his legal practice in the tahsil town, Bhiwani in 1956-57 the ill-repute of his family and his own stood in his way; (iv) Part I, para 14(g) wherein it is averred--through his unhealthy association with the then Speaker. The learned Advocate General forcefully submitted that the aforesaid allegations were wholly irrelevant arid scandalous and that the same were uncalled for and deserved to be struck down. The Petitioner, when confronted with the said allegations, could hot seriously urge that the same had any direct relevancy or were necessary to have been made in order to bring home the point which he was trying to make out in the petition l am of the view that even a plain reading of the portions quoted above leaves no manner of doubt that the allegations therein are absolutely irrelevant and unnecessary and are obviously scandalous in their nature they appeared to have been made in order to prejudice and embarrass the fair trial of the petition. In this view of the matter I would strike down the aforesaid allegations and direct that they should be deemed not to have ever been a part of this petition. Despite the volume of the pleadings and the plethora of argument addressed to us on either side, it appears to me that in essence two salient issues arise for determination in this case. These are: (1) Whether the Vidhan Sabha has the power to expel by majority one of its duly elected members who is otherwise fully qualified according to the provisions of the Constitution; (2) Assuming that such a power or privilege exists whether the same has been lawfully and properly exercised. 209. Before I address myself to these legal issues, it becomes necessary first to consider and adjudicate upon the writ Petitioner''s attack on the resolution of expulsion, on the ground of its being mala fide. This is so because it appears to me as settled law that even where an undoubted, power vests in a statutory body its mala fide or colourable exercise has nevertheless to be struck down. Therefore even if it were to be assumed in the Respondents favour that the State Legislatures have the power and privilege to expel yet a mala fide exercise of this power would necessarily have to be set aside. The writ Petitioner without more, would be entitled to-succeed if he is able to establish lonclusively his charge of mala fides. 210. In this context, however, the writ Petitioner at the very threshhold is faced with a sizeable hurdle. It is contended that as a matter of law a resolution of the Vidhan Sabha can never be assailed on the ground of mala fides and no motives can even be allowed to be attributed to the individual legislators in the exercise of their right of vote within, the House. Reliance for this contention is solely on the following forthright observations of Chief Justice Mehar Singh, speaking for the Pull Bench in Jai Singh Rathi and Ors. v. State of Haryana and Ors. 18 (supra): The last argument urged by Mr. M.C. Chagla on behalf of the Petitioners ''was'' that the suspension of the Petitioners was mala fide, an argument which at least has not been comprehensible to me. If, as has been found to be the power and privilege of the Haryana Legislative Assembly, the House in exercise of such power and privilege suspended, the Petitioners from the service of the House in a lawful and constitutional manner how could the vote of the House be described as mala fide? How can any motive be attributed to the vote in the House? In my opinion the vote in the House of Legislature cannot ever be said to be mala fide.
It is plain that the afore-mentioned view, if correct, would raise a blanket wall against the Petitioner''s challenge on the ground of the Vidhan Sabha''s action against him being mala fide. Inevitably, therefore, the writ Petitioner forthrightly assailed this judgment as incorrect and invited us to overrule the same. The assault on the correctness of the above view is five-fold. Firstly, it is pointed out that though the observations are forthright and categorical yet they are conspicuous by the absence of any reasoning therefore and equally unsupported by any authority. Secondly, it is alleged that on principle and logic the view expressed is unsustainable. Thirdly, it was submitted that these observations run contrary to the binding precedents of the Supreme Court which apparently had not been brought to the notice of the Full Bench. Fourthly, it was contended that there has been some apparent confusion in the judgment regarding the Legislature as an institution and the individual members thereof. Whilst the institution being impersonal may perhaps be immune from a challenge on the ground of mala fides yet the individual members of the House enjoy no such immunity. Lastly it was submitted that the observations would be obiter dicta because it was found as a fact that the allegations of mala fides had, not even remotely been established. 211. In my view the Petitioner''s stand arid contentions herein are more than well-founded. Before one gets enmeshed in the details of precedent to which reference is inevitable it is refreshing to examine the matter on principle, ft is true that it would never be easy to attribute mala fides to the members of an august body like the Legislature. 1 am second to none in the matter of regard and respect which must necessarily be accorded to the Legislatures and the traditional wisdom which has always been attached to them. Perhaps in a large, legislature, the difficulty of proof in order to establish that each member thereof had acted for extraneous considerations may indeed be insuperable However, saying that a matter is not easy to prove or establish is certainly not the same thing as laying it down as a dictum of law that a vote in the legislature can never be assailed on the ; ground of mala fides. Recent reverberations around the globe of bribery and corruption which have been called the Lockheed Scandal have highlighted the fact that corrupt and illicit motives may sometimes permeate to the highest echelons of the Government or the Legislatures. However, to keep close to the facts, one may advert to a simple illustration. Take the example of a relatively small Legislature and, a look at the eastern-most part of our country would show that there is no paucity of such small Houses with relatively limited membership either within or without this country. The quorum for such a small body may again be merely one-third or one-fourth of its total members as is usual. Supposing in a particular case in such a small Legislature a minuscule number of Legislators, forming the quorum resolved by majority on ah issue, and later it can be proved conclusively or is even admitted that the voting was motivated by extraneous or even corrupt motives then would such a resolution when challenged be sacrosanct from examination on, the supposed ground that a vote of the Legislature can never be mala fide? Would the law create a false mask of innocence around, what in fact is not so? I am unable to see any principle logic or justification for refusing to even examine what may be admittedly or conclusively capable of proof as extraneous or male fide. The law has always pierced all artificial veils to arrive at the substance and truth of the matter. One sees no reason why the Legislatures should form an exception to this salutary and hallowed rule. 212. A reference to para 19 of the report in Jai Singh Rathi''s case which alone deals with this point would show that no reasons whatsoever have been given for arriving at the conclusion. The observations are thus more in the nature of a dictum without providing any support there for either on principle or authority. Herein one cannot quite fathom the rationale which had influenced the Bench to make the afore-mentioned, categorical observations. It has been rightly observed that the true ratio of a judgment is the reasoning thereof and not merely the conclusion. Herein it appears to me that there is primarily a conclusion without adequate reasoning there for. 213. I find myself unable, however, to skirt the observations of the Full Bench herein on the ground that these were obiter dicta. It is clear from the judgment that a specific argument was raised that the suspension of the writ Petitioners therein was mala fide which was categorically rejected, though summarily. It cannot, therefore, be said that the point did not arise for determination because it 5 s plain that if the issue of mala fides had been decided successfully in favour of the writ Petitioners the impugned action may well have been struck down. It is true that the Bench adverted to and found as a fact that there was no basis in the allegations of mala fides and these had been made in a reckless manner and there was not even a shadow of suggestion in support thereof. From this, however, no inference can be possibly raised that the earlier observations that a vote of the House can never be said to be mala fide was merely obiter. At the highest it may be said that since the factual allegations were without foundation rather strong observations were made on the legal aspect as well. 214. Undoubtedly the Bench was composed of three of the most eminent Judges of this Court. Equally the lis was argued before them by counsel of great eminence. Nevertheless it. appears to me that a catena of authorities in which the Issue of maid fides of Legislature had certainly been entertained and also those in which the view that fraud or mala fides would vitiate everything were not adequately noticed. Reference in this connection may first be made to the forthright observations of Pollock,. Master of Rolls in Short v. Poole Corporation 1926 Chancery Division 66 85: The Appellants do not contest the proposition that where an authority is constituted under statute to carry out statutory powers with which it is entrusted, there are cases which show that it an attempt is made to exercise those powers corruptly as under the influence of bribery, or mala fide--for some improper purpose, such an attempt must fail. It is null and void.
In this very Case Lord Justice Warrington; observed at page 90 of the report: Thus no public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be that of he body, but proved to be committed in bad faith or from corrupt motives would certainly be held to be inoperative.
Lord Justice Denning in Lazarus Estate Ltd. v. Beasley (1956) 1 All. E.R. 341. was equally forthright in his observations: * * * *cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever.
215. I have quoted from the aforesaid English authorities because the Supreme Court has set its seal of approval to these observations in the locus classicus on the point of mala fides in S. Partap Singh v. State of Punjab (supra). Therein a somewhat identical argument was sought to be raised, before their Lordships by the Attorney-General that the action of the Chief Minister, even if mala fide, could still not be impugned on that ground. Their Lordships recorded their disapproval of any such suggestion with the observations that if such an argument were to be countenanced then even fraud or corruption leaving aside mala fides would not be examinable by the Courts. After adverting to numerous authorities including the two quoted above, they concluded as follows: * * *The Constitution enshrines and guarantees the rule of law and Article 226 is designed to ensure that each and every authority in the State, including the Government acts bona fide and within the limits of its power and we consider that when a Court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the Court to afford justice t� the individual. It is with these considerations in mind that we approach the facts of this case.
It is manifest from the above that the highest authority has held that the existence of mala fides would render null and void the actions even of the highest executive within the State, as also of the Government, an also the judgments rendered by a Court of law. In no uncertain terms, it has been observed that each and every authority in the State is bound by this rule. Surely the Legislature is within the ambit of this wide-ranging terminology. I see no reason why the Legislatures would be an exception to the hallowed rule noted by their Lordships. 216. Even more directly on the point are the observations of the Bench in the Presidential reference in the V.P. Legislature''s case, (36) (supra). Therein the resolution of the U.P. Legislature for depriving a citizen of his liberty was under examination. It was in this context that in para 127 of the, report, Chief Justice Gajendragadkar speaking for the majority said in no uncertain terms: * * * 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.
217. It has then to be recollected that the charge of mala fides against the members of the Legislature/has come up before the Courts in numerous cases and but for the solitary exception of Jai Singh Rathi''s case, the matter has always been considered and adjudicated upon. No other judgment could be brought to our notice in which such a charge was barred at the very threshhold on the ground that the allegations of mala fides against the members of the Legislature regarding their voting in the House could not even be entertained as a matter of law. In M.S.M. Sharma v. Sri Krishna Sinha and Ors. (supra), similar charges of mala fides against the members of the Bihar Legislative Assembly, who constituted the Privileges Committee thereof were levelled before their Lordships and it was only after a consideration thereof that these were rejected. In Keshav Singh v. Speaker Legislative Assembly U.P. and Ors. (supra) the writ Petitioner had specifically alleged that the Assembly had acted mala fide, in, punishing the Petitioner for its contempt. The Division Bench in para 18-A of the report expressly noticed the grounds-on which the; allegations of mala fides were based and after adjudicating thereupon concluded that the material on the record was insufficient for arriving at a conclusion that the commitment of the Petitioner for contempt was mala fide. 218. Lastly reliance was also placed by the writ Petitioner on the observations in the
219. I may, however, pointedly high-light one factor. Here as in Jai Singh Rathi''s case we have for our consideration a resolution of the Houses In, the course of argument, some; subtle distinction was sought to be drawn between a resolution of the House simpliciter, and the formal passing of a bill with its detailed and specific procedure. I am of the view that in constitutional and larger issues it is best not to travel beyond the specific facts of the, case and, therefore, I am confining myself herein specifically to a matter of a resolution of the House only and hot necessarily to the exercise of the legislative power strictu sensu. 220. Either because of the heavy weight of precedent on the other side, or due to his illimitable fairness the learned Advocate-General at the very outset had conceded that he was unable to support the sweeping observations in Jai Singh Rathi''s case and according to him the proposition had been too widely stated. He himself took up the stand that in rare or exceptional circumstances (though according to him the possibility would be quite remote), the court could and perhaps would be obliged to go into the issues of mala fides if raised on substantial foundation of fact. However, because the view expressed was the unanimous one of a Full Bench, it was not possible to skirt them on the mere concession of the learned Advocate-General, and therefore, the matter has been examined in some depth by me. 221. I would, therefore, hold on principle, owing to the absence of any considered reasoning therein; and in view of the binding precedents of the Supreme Court, that the observations in Jai Singh Rathi''s case do not lay down the correct law. Whilst there would be obvious difficulties of proof, there does not appear to be any warrant for the abstract and sweeping proposition that a vote on a resolution by the Legislature cannot ever be said to be mala fide, as a matter of law. Of course there is a presumption in favour of the actions of the Legislature but it obviously cannot be conclusive and is rebuttable though the burden would be heavy on the challenger. With great deference and humility to the learned. Judges of the Full Bench, I overrule the same on this specific point only. 222. Though the Petitioner has crossed the legal hurdle placed in his way by the observations in Jai Singh Rathi''s case it appears to me that his success on the issue of mala fides is nevertheless short lived. In the writ petition he has levelled innumerable allegations of malice against Ch Bansi Lal, Respondent No. 4, the then Chief Minister of the State of Haryana as also Shri Banarsi Pas Gupta, the present incumbent of that office. These are contained in great detail and venom in paragraphs 17 to 19 of the writ petition. Apart from this, personal animosity has also been alleged against Shri Gulab Chand Jain the Chairman of the Privileges Committee as also against the other members thereof and some other, legislators as well. For reasons which appear hereinafter, it becomes unnecessary to recount in any great detail the allegations made by the Petitioner or even to adjudicate, upon their veracity. 224. In sum the case laid by the Petitioner; oil the ground of mala fides is that Respondent No. 4 out of an inveterate and long standing personal hostility had him expelled from the Haryana Vidhan Sabha in order to wreak vengeance on him for his relentless political opposition in general and for his personal attack upon Respondent No. 4 in particular contained, in the publications, annexures P. 1 and P. 2. It is suggested that Respondent No. 5 due to his close associations with Respondent No. 4 was equally malevolent towards the Petitioner and there were individual personal incidents of grudge betwixt the writ Petitioner and him as well. The sum total of all these allegations is directed to suggest that Respondent No. 4 had virtually a total, personal hold not only over Respondent No. 5,. but equally on Shri Gulab Chand Jain, the Chairman and the remaining nine members of the Privilege-Committee. The Petitioner proceeds further, to allege, that Respondent No. 4 with his towering political personality and as the Chief Minister and the leader of the House by resorting to methods, which he criticised, had secured a similar total personal hold over other members of the legislature including all those belonging; to the Congress Party as so over a sizeable number of members which form the opposition groups. The Petitioner consequently sees the invisible hand of Respondent No. 4 from the very, admission of the privilege motion against him in November, 1973 to its final adoption and culmination in the end result of his expulsion on the 8th of January, 1975. If the Petitioner''s words were to be accepted Respondent No. 4 was the master-mind behind his expulsion Whilst the other actors in the drama were mere puppets in his hands who were dancing at his behest. 225. It is inescapable from the above that the core of the charge of mala fides is directed against Respondent No. 4 and his actions. As regards others the gravamen of the song is about their close associations with Respondent No. 4 or their total sub-servience to him. It is, therefore, plain that if the writ Petitioner fails to establish Conclusively that the voting on the impugned resolution in the Vidhan Sabha was wholly and entirely at the behest and command of Respondent No. 4, then the allegations against the other Respondents lose significance and perhaps become totally irrelevant. 226. It deserves to be noticed prominently at the Very outset in this context that in a detailed affidavit Respondent No. 4 has categorically denied the allegations of mala fides. Similarly Respondent No. 5 has been equally firm in rebutting on bath the allegations made on behalf of the writ Petitioner. There is no reason to distrust these affidavits. The Petitioner had persisted in his prayer that Respondent No. 4 should be summoned for cross-examination but we did not for a moment ever think of acceding to so extraordinary a request. Some of the remaining Respondents; against whom the allegations of mala fides have been made, have similarly put in affidavits to controvert the Petitioner''s allegations of malice. 227. Whilst the broad factual position is not in serious dispute, the Petitioner candidly makes no bones about his personal and political venom against Respondent No. 4. A mass of documentary evidence has been brought on the record containing strong worded communications addressed by the Petitioner to Respondent No. 4. An example thereof may be noticed in annexures P. 17 and P. 18. There from, however, it cannot be necessarily and inevitably inferred that the bitterness which the Petitioner exhibits towards Respondent No. 4 is necessarily reciprocate to and equal degree. Indeed a perusal of some of these documents would show that Respondent No. 4 in his communications addressed to the Petitioner has maintained a modicum of restraint and dignity which the Petitioner may not have always been able to do and which he might have well emulated. Reference in this context may be made to the Chief Minister''s D.O. letter, dated file 5th January, 1970, annexure P. 19, which is indeed innocuously worded. A similar, if not an identical situation arise as regards the allegations leveled against Respondent No. 5 also the communications addressed to him. 228. Be it said to the credit of the learned Advocate-General that he forthrightly and candidly took up the stand that in view of the background of the case, the offensive communications addressed by the Petitioner to Respondent No. 4 and in particular his conduct in publishing annexures P. 1 and P. 2 there could possible be no be love lost betwixt him and Respondent No. 4. He however firmly contended that even assuming it to be so that Petitioner and Respondent No. 4 are not the best of friends yet the Petitioner has nevertheless been wholly unable to establish that the admission of the privilege motion against him and his ultimate expulsion as entirely the handi-work of Respondent No. 4. 229. There appear to be substantial merit in the stand taken by the learned Advocate-General and the contentions advanced by him. It has to be borne in mind that the original privilege motion against the writ Petitioner was hot been able to level charges of any specific malice. It is not even the case that at the stage of the original admission Respondent No. 4 the then Chief Minister took any active part in the discussion or the admission of the privilege motion. There does not even appear to be a specific allegation that the two original movers of the privilege motion had been directly instigated by the Chief Minister to do so. Proceeding further it is equally worthy of recollection that Respondent No. 4 was not even a member of the Privileges Committee which appear to have been already constituted when a reference of the admitted motion was made to them for enquiry and report. There are further no specific allegations of Respondent No. 4 having ever attempted to influence the Chairman or the member of the Privileges Committee to render a biased report against the Petitioner. 230. It has then to be remembered that the motion of expulsion against the writ Petitioner was carried in the House unanimously even though this might have been done after the opposition group had withdrawn therefrom in protest. The precise number of the members present and voting on the resolution has not even been specified in the voluminous pleading, but undisputedly the flgure was as large as sixty five or more. Now to establish the charge of mala fides; against this unanimous vote within, the House it would perhaps be incumbent on the writ Petitioner to prove that all the aforesaid legislators or in any case a majority of then were acting with ulterior motives at the behest of Respondent No. 4 in order to expel him. To discharge so heavy a burden, mere vague and vacillating allegations or sweeping generalisations that the whole membership of the Vidhan Sabha was under the thumb of Respondent No. 4 can hardly serve any purpose. The Petitioner has not only failed to give even the precise number of legislators who voted against him in the House but he has not chosen even to determine their identity. In order to succeed, he may well have to prove that Respondent No. 4 had individually pressurised or directed each legislator within the House to vote against the Petitioner against his own better judgment. Far from having established anything, of this kind, the writ Petitioner seems to be blissful silent even on the point of the personal presence of Respondent No. 4 in the House. There is not even an allegation that Respondent No. 4 on the crucial date, of the 8th January, 1975, either approached or pressurised each legislator to this effect. He had not merely to show this but perhaps it was, necessary to go further, to prove that all these members had in fact succumbed of the alleged exercise of pressure by Respondent No. 4 and had voted in the House against their own better judgment. Herein again there does not appear to be even a specific averment to this effect far from there being actual proof thereof. 231. Coming now to the actual voting in the House on the resolution on the 8th January, 1975 it has not been seriously disputed at the bar that Respondent No. 4 was in fact actually present in the House on that day. A record of the proceedings of the Vidhan Sabha, which has been made available to us would however, show that Respondent No. 4 did not at any stage even utter a word in the proceedings far from actively participating in the debate on the motion. It is not even the allegation of the Petitioner that Respondent No. 4 within the House or in the lobbies on that day either threw his weight against him as regards the voting on the motion; It was glibly argued on behalf of the Petitioner that it was the known modus operandi of Respondent No. 4 to keep himself in the background whilst, pushing his puppets and stooges to the forefront. However, apart from the bald word of he Petitioner, in the course of argument, there is hardly any factual foundation for such a suggestion. Even when pointedly asked, the Petitioner conceded that no whip had been issued by the Congress party for a vote in support of the motion for his expulsion. It was admitted by him that though there were no specific rules for the issuance of such a whip yet in the Vidhan Sabha the practice of issuing such a direction is neither unusual nor unauthorised. In the present case, therefore, even a resort to this procedure, which Respondent No. 4 as the leader of the House could easily make, was not done by him. There is thus hardly any substantial evidence that the final voting in the House en the resolution of expulsion was either Influenced or procured entirely by Respondent No. 4. 232. For all the aforementioned facts and reasons it appears to me that the Petitioner has been unable to overcome the virtually insuperable hurdles of proof which inevitably pave the way of one who chooses to level allegations of mala fides against the Legislature as such or its members. It has been authoritatively, said that it is not easy to attribute motives against the Legislatures and it is patent that it is equally difficult to conclusively establish them in a Court of law. The Petitioner has thus been patently unsuccessful in this uphill task. The attack on the grounds of mala fides thus must necessarily fail and the resolution of the House is immune from any such infirmity in this case. Even assuming (without holding) that there was a modicum of bitterness between the Petitioner and Respondent No. 4 as the learned Advocate General for the State of Haryana virtually conceded it is not possible on, the present, record to arrive at the conclusion that the unanimous vote of the Vidhan Sabha on the resolution was on a fiat by Respondent No. 4 or that the Legislators had exercised their privilege of voting against their will or for considerations other than their own judgment. 233. Having cleared the air of the cobwebs of allegations of fact and law on the issue of mala fides. I must now address myself to what indeed appears as the significant core of this case. The central legal issue which was formulated in the opening part of this judgment may for facility of reference be now repeated: Whether under our Constitution the State Legislatures In India have the power and the privilege of expelling by majority one of their duly elected members as a) measure of punishment for the contempt of the House, its Speaker or its members
The stance of the writ Petitioner herein is indeed one of pristine logical simplicity. It is rightly pointed out that the State Legislatures within India derive their parliamentary privileges, powers and immunities by way of analogy from those enjoyed by the House of Commons in England by virtue of Article 194(3) of the Constitution of India. However, the firm stand of the Petitioner is that despite some ambiguity in the language of the said Article it is plain that all the privileges, powers and immunities of the House of Commons cannot by their very nature become available to the Indian Legislatures. According to the Petitioner, one such basic parliamentary privilege which cart never descend to the State Legislatures is the well-known and admitted power of the House of Commons not only to provide for but also to regulate its own constitution. The core of the Petitioner''s case is that the power of expulsion exercised by the House of Commons is an integral and indivisible part of this privilege to provide for and constitute itself. Both on principle and on the basis of the binding precedent it was argued that this privilege of providing for and regulating its own constitution is so peculiar to the House of Commons that it cannot ever be deemed to have descended to the State Legislatures of India and particularly so in view of the detailed provisions of the Constitution on the point. As a necessary logical, consequence from the aforesaid legal position it was forthrightly submitted by the Petitioner that the admitted power of expulsion vested in the House of Commons does not and indeed never can become available to a State Legislature. 234. The Petitioner relied upon a number of binding precedents for the aforesaid proposition but in the larger perspective advanced a number of reasons for contending that the privileges, powers and immunities of the House of Commons cannot in their totality be inherited by the State Legislatures in India. Two salient reasons were pointed out--firstly, the existence and the continuance of the concept of Monarchy in England from times immemorial as against the declaration of the people of India to constitute themselves into a Sovereign Socialist, Secular Democratic Republic by the very preamble of the Constitution, and secondly, the existence of perhaps one of the most exhaustive written Constitutions in the World, in India as against the virtually unwritten and constantly developing constitution in England. Apart from these basic and almost fundamental differences, a number of ancillary but equally significant distinguishing features have also been pointed out It was contended with force that the long historical background and the gradual development of the parlimentary institutions, their traditions, conventions and privileges in England extending over a period of ten centuries do not have any parallel or perhaps any relevance or place as regards the creation of the State Legislatures in India who are the creatures of the Constitution which provides for nearly every aspect thereof in meticulous detail. Again the inherent difference between the institution of Parliament in England which is one of slow, gradual and continuous development over hundreds of years as against the super imposition of the parliamentary system in India by the adoption and the promulgation of the written Constitution has been equally highlighted Similarly the great and sometimes insoluble difficulty of determining as to what precisely were the privileges of the House of Commons on the crucial date of the 26th of January, 1950 has also been pointed out because parliamentary privilege in England was in a constant state of flux, change and development wherein many of the old and ancient powers and immunities were gradually passing into desuetude. It is because of this that the Petitioner repeatedly highlighted the wide gap that exists in England between the theory of the privileges of the House of Commons as against the known and virtually accepted practices thereof. 235. Having noticed the broad stand and the spearhead of the Petitioner''s challenge to his impugned expulsion. I now proceed to examine the issue in depth. However, I am of the view that it is neither possible nor desirable to place the ensuing discussion in the strait-jacket of a very strict compartition. Nevertheless it would perhaps be conducive of clarity if the basic points at issue for arriving at an answer thereto are broadly indicated at the outset These, to my mind, are-- (a) 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? (b) Whether the Presidential reference in the U.P. Legislature''s case is declaratory of the law and thus binding on all the High Courts ? (c) Whether the admitted privilege and power of providing for and regulating its own constitution enjoyed by the House of Commons in England is equally available to the State Legislatures within India ? (d) Whether the admitted right of the House of Commons to expel one of its members is an integral and indivisible facet of its privilege to provide for and regulate its own constitution? (e) Whether the privilege of providing for and regulating its own constitution vesting in the House of Commons can be expressed in three ways only, or is that enumeration merely illustrative? (f) Whether the power of expulsion is so inherently alien to the tenets of the written Constitution of India as to be unavailable to its State Legislatures in the very nature of things? 236. For a close examination of the aforesaid salient questions, one must inevitably turn to the provisions of Article 194 of the Constitution. Clause (3) thereof admittedly is the source and fountain-head of the powers, privileges and immunities enjoyed by the State Legislatures in India. The relevant part of Article 194 is in the following terms: 194(1) 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; (2) 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, voters or proceedings; (3) In other respects, 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, until so defined, 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. (4) * * * As indicated by the emphasis supplied, the words in the above-quoted Clause (3) provide the key to the problem involved. However, at the very threshold arises the question of the correct approach to the Construction of Article 194(3) which indeed appears to me as vital If not fundamental. The mental process by which an interpretation of the material clause is to be arrived at would inevitably colour the ultimate construction which would be placed thereon. On behalf of the Respondents an intriguing, and if I may say so, a rather curious contention was raised in this context. It was submitted that in view of the language of Article 194(3) each and every parliamentary privilege enjoyed by the House of Commons without any exception whatsoever must be deemed as if it were in fact written with pen and ink into the Constitution itself. According to the Respondents, one must at the outset unreservedly read every power, privilege and immunity of the House of Commons within Clause (3) and consequently exercisable by the State Legislatures in India as well. However, having done that, one should thereafter proceed to scrutinise the remaining provisions of the Constitution and if some power, privilege or immunity directly conflicts with or contravenes some express or special provision thereof then the same may be eroded on the ground that it is not possible for the House to exercise the same. Nevertheless it was dogmatically stated that even in the case of a direct or irreconcilable conflict, the privilege must be read into the Constitution and should not be deemed as necessarily deleted or excluded therefrom. In short, the learned Advocate-General for a while canvassed for the acceptance of what may be conveniently called as ''pen and ink theory for the construction of Article 194(3) of the Constitution. 237. On the other hand, the Petitioner forthrightly argued that some of the parliamentary privileges of the House of Commons by their very nature are so inherently alien to our Republican Constitution that they can never possibly be deemed to, be pact thereof. Indeed, according to him, these are so intrinsically foreign to the scheme of our Constitution that it would be almost heretical to thrust them into the same. It was submitted that the only reasonable and consistent canon of construction, in this situation was that all the parliamentary privileges of the House of Commons, which in their very essence and by their intrinsic nature were patently contradictory to the Indian Constitution, then these must necessarily be excluded therefrom at the very threshold. 238. I believe, that the fallacy of the argument on behalf of the Respondents is highlighted, the moment one particularises the same and, refers to some of the well-known and admitted privileges of the House of Commons. It was conceded before us that not one but innumerable parliamentary powers and privileges of the House of Commons were inextricably linked with the Sovereign, that is, King or. Queen of England, as the case may be. Can one imagine that the word ''King'' or ''Queen'' mentioned therein, should be deemd to have been written in pen and ink in our Constitution also when its very preamble solemnly declares that the people of India have constituted themselves into a Sovereign, Socialist Secular Democratic Republic? In particular, one may consider the accepted parliamentary privilege of the freedom of access to the Sovereign including a right at all times to petition, counsel or remonstrate with the King through their chosen representatives. This is admitted on all hands to be a parliamentary privilege which was considered fundamental by the House of Commons and undoubtedly enjoyed by it Can one for a moment conceive that the Republican Constitution of India would incorporate this privilege for, its State Legislatures. How can even one imagine that the founding fathers in the Constituent Assembly had intended to write such a privilege also into our Constitution and to deem it as part and parcel thereof? If so, to whom were the State Legislatures supposed, to petition and with whom were they to counsel or remonstrate with through their chosen representatives in the obvious absence of even the institution of the Monarchy herein? 239. Similarly not one but there are tens of parliamentary privileges of the House of Commons which are closely linked with the hereditary House of Lords in England. In particular the power of the House of Lords to punish the contemners of the House by passing judgment as a Court was undoubted. Can one read or even imagine, a House of Lords within our polity when the very Constitution itself disapproves even a reference to any titles on the basis of heredity and blood alone? Other examples of this nature could perhaps be multiplied ad infinitum but it would perhaps suffice to mention two other undoubted privileges of the House of Commons. It is not in dispute that the said House had a relatively unrestricted power of impeachment whereby it acted as the prosecutor whilst the House of Lords was the final Court or adjudicator for the same. Would it be possible to assume within our Constitution any such general parliamentary privilege of impeachment (apart from those which the Constitution in terms confers) or toy analogy to place the Rajya Sabha in the peculiar historical position which the House of Lords had as the final Court in England? Again closely interrelated to this general power of impeachment in the House of Commons was the privilege to pass Acts of Attainder which in terms and effect meant an unrestricted right to pass judgment during the course of impeachment. Can one for a moment read such a power or privilege in favour of the State Legislatures in India? 240. I am of the view that it is essentially tautologous to first read something into the Constitution and in the next breathy to proceed to erase the same. This exercise becomes the inevitable, if, as suggested on behalf'' of the Respondents, one is to first read the King, the Queen, the House of Lords or the Acts of Attainder into the Constitution and thereafter to proceed to nullify them on the plain ground that by the very nature of things they cannot form part of a Republican Constitution. The pen and ink theory, therefore, in effect becomes indeed a pen ink and India Rubber theory whereby one first writes something entirely alien to the Constitution within it and the next moment proceeds to rub it off. It is well-settled that when a statute includes-something in it by a reference-to another provision then only that can be deemed to be included which is compatible with the parent provision. To my mind, therefore the plain method of construing Article 194(3) is the usual and the settled one of not reading something into it which is glaringly anomalous, unworkable and irrational. 241. I may notice that in the wide gamut of case law, which was cited before us (with a solitary exception, to which reference follows hereinafter) on the point of construction of Article 194(3) no such novel argument has even been raised far from the same being accepted. In the U.P. Legislature''s case, which involved one of the most exhaustive examination of Article 194(3) a somewhat analogous suggestion was raised by Mr. Seervai on behalf of the Legislature Gajendragadkar C.J., speaking for the majority, brusquely ruled it but of consideration with the following observations: 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''s 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.
242. It is obvious that the argument of the pen and ink theory has been borrowed in toto from that raised by Mr. Daru before the Division Bench in Chhabildas Mehta''s ease. Chief Justice Bhagwati (as his Lordship then was) considered it in depth and rejected it m unequivocal terms as follows: Mr. Daru, however, contended that this was not a correct approach to the. problem of construction of Article 194(3). He urged that we must first read the privilege in Article 194(3) as if, it were written out in pen and ink in that Article and then apply the principle of harmonious construction if that appears to conflict with any other provision of the Constitution. So construed the privilege incorporated in Article 194(3) would have full efficacy in the area in which it. operates and Article 226 would be restricted only to the extent to which if is overridden by privilege. As a matter of fact, said Mr. Daru when the court entertains the petition and finds that the proceedings of the Souse is covered by the privilege, the Court will give effect to the privilege since it is part of the Constitution and hold that it has no jurisdiction to question the legality of the proceeding, This argument of Mr. Daru, plausible though it may seem, suffers from a serious infirmity. It begs the question which is to be answered. The problem before us is whether the privilege can be read in Article 194(3). It is no answer to this problem to say ''read the privilege in Article 194(3) and then harmonise it with the other provisions''. If the privilege is inconsistent with the scheme of the Constitution and its material provisions, it cannot and should not be read in Article 194(3). The presumed intention of the Constitution--makers in such a case would be that such a privilege should not belong to the House of the Legislature. We derive considerable support for this conclusion from the implication raised from the first part of Article 194(3). If the Legislature makes a law defining ,the privileges of the House under the first part of Article 194(3) and enacts the privilege in Bradlaugh v. Gossett 12 Q.B.D. 271 as part of such law, would such an enactment exclude the jurisdiction of the Court under Article 226? Would the House be entitled to assert the statutory privilege in the face of Article 226 or in other words, would the statutory privilege prevail over Article 226? The answer is obviously in the negative; Article 226 is paramount and it cannot be set at naught by any law made by the Legislature under the provisions of the Constitution. No provisions enacted in a law made by the Legislature can exclude the jurisdiction of the High Court under Article 226. Notwithstanding such provision, the jurisdiction, of the High Court under Article 194(3) cannot be said to be in exercise of constituent power and it must, therefore, give way to Article 226. If that be so, it become at once material to inquire whether the Constitution makers could have really intended that the privilege in Bradlaugh v. Gossett should be read in Article 194(3) so as to take away a part of the jurisdiction of the High Court under Article 226 when a law made by the Legislature prescribing the privileges of the House could not do so. The first part of Article 194(3) thus throws considerable light on the true interpretation of the latter part of that Article and shows that it could never have been the intention of the Constitution makers that the privilege in Bradlaugh v. Gossett should be read in Article 494(3). This is the same argument which found favour with the majority Judges in the Presidential. Reference,--vide paragraph 33 of the majority opinion We are therefore of the view that the privilege in Bradlaugh v. Gossett though enjoyed by the House of Commons at the commencement of the Constitution does not vest in the House of the Legislature under Article 194(3) and does not give immunity to the House from scrutiny of the Court even in respect of its internal proceedings.
Finding on issue (a) I am entirely in agreement with the aforesaid lucid reasoning on the point. Indeed it appears to me that the intriguing argument on behalf of the Respondents is no more than an invitation to indulge in a quixotic exercise of first imagining aery nothings and then tilting at them. The contention of the Respondents on this significant issue of approach to the construction of Article 194(3) must therefore, be unreservedly rejected. 243. Now the touch-stone upon which not only one but numerous questions arising in this case-have to be tested is the opinion rendered by their Lordships in the Presidential Reference No. 1 of 1964 in the U.P. Legislature''s case, A vacillating doubt, however, was raised on behalf of the Respondents by the learned Advocate-General which was later presed in the course of arguments that the opinion of the majority in the said case was not at all a binding precedent and indeed as a matter of law, the same could have no more effect than the opinions of the eminent law officers. Taking shelter behind these premises it was later contended before Us that wherever any conflict of opinion appeared between the U.P. Legislature''s case and other judgments of the Supreme Court (however small the composition of the Bench thereof) the latter would ipso facts have precedence and would override the view expressed in the presidential Reference. 244. On the other hand, the primary reliance on behalf of the Petitioner was placed on the U.P. Legislature''s case and it was forcefully contended by him that the opinion expressed by the majority after one of the full consideration in depth of Article 194(3) was plainly declaratory of the law and thus within the ambit of Article 141 of the Constitution. It was submitted that the opinion was as much binding precedent as any other judgment of their Lordships of the Supreme Court. In case of conflict, the Petitioner''s stand is, that the reference having been heard by seven distinguished Judges of the Supreme Court, was entitled to precedence over contrary view if any expressed by smaller Benches. In the alternative it was contended by the Petitioner that in any case, so far as this High Court was concerned the U.P. Legislature''s case was binding and could not be deviated from by this Bench. In support of his contentions the Petitioner placed reliance on a number of authorities to which reference follows hereinafter. 245. On behalf of the Respondents primary reliance for the con tentions raised has been placed on the observations of their Lordships in para 38 of the report in the U.P. Legislature''s case itself. There in their Lordships expressed the view that the Presidential Reference-did not amount to a judicial adjudication, properly so called and because of the absence of any formal parties before them, the answers given to the questions would not bind anyone. Having closely analysed these observations I am of the view that they do not in any way detract from the binding nature of the declaration of law made by their Lordships in the Presidential Reference. It has to be recollected that the occasion for these remarks arose primarily because Mr. Seervai appearing on behalf of the UP Legislature had firmly taken the stand that the latter had not submitted or conceded to the Court the Jurisdiction to construe Article 194(3) so as to bind it. Even otherwise their Lordships were factually correct in observing that in a Presidential Reference there were no parties or litigants as such before the Court strictu sense. In the absence of a lis between the two contesting litigants before the Court it was inevitable to hold that the Presidential Reference did not conform in the strict technical sense to a judicial adjudication, properly so called. This situation is inherent in all Presidential References under Article 143 of the Constitution. But that is a far cry from holding that a declaration of law on significant issues referred to the Court is of no value as precedent and may be equated with nothing more than high sounding legal opinion. 246. In my view the binding nature of a precedent does not necessarily stem from the fact or the absence of two litigants before the Court. The ratio decidendi of a judgment of a Superior Court of Records is binding as declaratory of the law by such a Court and because of the weight of its logic and reasoning. I do not think that the same is so materially related to the technical presence or absence of two litigants before it who may be bound by it or otherwise. The emphasis in Article 141 of the Constitution is on the declaration of the law by the Supreme Court and its binding nature on all the Courts subordinate thereto within the country. I am of the view that the rule enunciated in Article 141 would be as much attracted to the Presidential Reference under Article 143 as to any other enunciation of the Law by their Lordships of the Supreme Court. 247. To be candid there is undoubtedly some divergence of legal opinion on the supposed difference between a judicial adjudication, properly so called, between two litigants and an opinion rendered by the Supreme Court on matters of great public and legal importance which alone are referred to it under Article 143. However, there appears to be a great preponderance of authority for the view which I have expressed above. As is well known, there was a similar and indeed identical provision in Section 213 of the Government of India, Act 1935. In assessing the weight to be attached to an opinion in such a reference Chief Justice Gwyer speaking for himself and Varadachariar and Beaumont JJ., in The Province of Madras v. Boddu Raidanna and sons A.I.R. 1942 FC 33 had this to say. In 1939 F.C.R. 181 the opinions expressed were advisory opinions only, but we do not think that we ought to regard them as any less binding upon us on that account. We accept, therefore, the general division between the Central and Provincial spheres of taxation which commended itself to the majority of the Court in that case.
248. It is plain from the above that the Chief Justice Gwyer accorded precedential authority to the earlier opinion rendered in a reference under Section 213 of the Government of India Act, 1935. This was so even in the absence of a provision entirely identical with Article 141 in the present Constitution. The principle enunciated therefore, is applicable even with greater force to Presidential references under Article 143 of the Constitution. However, the direct enunciation on this point pertaining to U.P. Legislature''s case is the forthright observation of Chief Justice Bhagwati speaking for the Bench in Chhabildas Mehta''s case A.I.R. 1974 S.C. 196 (supra) We are, therefore, surprised and indeed if we may say so without meaning the slightest disrespect to the Assembly and the Speaker, we think it a matter of regret that the Gujrat Legislature Assembly should have advanced these claims in utter disregard of the majority opinion of the Supreme Court. It is no doubt true that the majority-opinion was expressed by the Supreme Court in its advisory jurisdiction under Article 143 but we do not see why on that account it ceases to be law declared by the Supreme Court within the meaning of Article 14. The Constitution has conferred diverse jurisdictions on the Supreme Court. There is the original jurisdiction under Article 131 then there is the appellate jurisdiction under Articles 132, 133, 134 and 136, there is also writ jurisdiction under Article 32 and lastly, there is advisory jurisdiction under Article 143. A point of law may arise for consideration in any of these jurisdictions and where such point of law is considered and the Supreme Court expresses what in its considered view is the correct position in regard to such point of law, it is clearly and Indubitably a declaration of law by the Supreme Court, ft is not material which jurisdiction provides the occasion for declaration of the law. Whatever be the jurisdiction, when law is expounded by the Supreme Court, it is declared. The word "declared" in Article 141 must be given its plain natural meaning and so construed, it has a wide connotation. It is not limited by the requirement that there should be a decision in a lis inter parties. The main ground on which binding effect has been denied to advisory opinions given by Courts in Canada under Section 60 of the Canadian Supreme Court Act, 1906 is that they do no not decide anything. As one Canadian Judge said. "We, give no judgment, we determined nothing, we end no controversy". But this reasoning can have no application under our Constitution for it is law declared by the Supreme Court which is given binding effect under Article 141 and law may be declared by the Supreme Court in the exercise of any jurisdiction irrespective whether it involves decision of a dispute inter parties or not., Even under the Government of India Act, 1935, which contained provision similar to Article 141, Sir Maurice Gwyer said in Province of Madras v. Boddu Padiana (1942) F.C.R. 90 at Page 100. In the Central Provinces Case (1939) F.C.R. 18 the opinions expressed were advisory opinions but we do not think that we ought to regard them as any less binding on us on that account. It is true that a different view was expressed by Spens C.J. in re Levy of Estate Duty (1944) F.C.R. 317, 320 and Umaval Achi v. Laxmi Achi (1945) F.C.R. 1, 36. But We do not think the view expressed by Spens C.J. can be preferred to that of a great constitutional authority of the eminence of Sir Maurice Gwyer. Besides, even in Canada where at one time the advisory opinion rendered by the Court was likened to "the opinions of the law. officers" subsequent cases and commentators indicate that in practice "referal cases are frequently accorded precedential value." This is inevitable" says Tromas Franck in his book on "Comparative Constitutional Process: Cases and Materials" at page 105 "and perhaps, even desirable." Where Government and individuals have guided their conduct by such decision, the Courts are naturally reluctant to reverse their prior pronouncements in Whatever form given. This is of course not to say that the Supreme Court cannot in a matter which properly comes before it in the exercise of another jurisdiction depart from the opinion expressed by it on a point of law in a Presidential Reference but until displaced by another decision the considered opinion must be held binding as declaratory of law.
249. In view of the above it suffices for me to say that I am entirely in agreement with the view expressed by Chief Justice Bhagwati. All that perhaps remains to be noticed in this context is that now more than a decade has elapsed since the rendering of the opinion in the U.P. Legislature''s case. In this period it has been unreservedly followed in all jurisdictions including the Supreme Court itself. Indeed hardly a judgment on the point of Parliamentary privileges of the State Legislatures can be found which has not referred to the U.P. Legislature''s case and accepted without demur the authoritative view rendered therein No judgment could be cited on behalf of the Respondent which has subsequently cast the least doubt either on the ratio decidendi of that case or its binding nature. Reference in this connection may be made to Syed Abdul Mansur Habibullah v. The Speaker West Bengal Legislative Assembly and Ors. 13 supra. Wherein Banerjee J. after exhaustively quoting from the aforesaid judgment respectfully followed the same. Even in Yeshwant Rao Meghawala v. Madhya Pradesh Legislative Assembly and Ors. A.I.R. 1960 SC 1186 supra (the correctness of which on another point has been assailed by the Petitioner) Chief Justice Dixit speaking for the Bench primarily quoted from and relied on the observations made in the Presidential Reference What deserves particular mention, however, is that in a judicial adjudication, properly so called, in the well known case of Smt. Indira Nehru Gandhi v. Shri Raj Narain 1976 (2) SLR 519 supra, their Lordships of the Supreme Court have made repeated references to the U.P. Legislature''s case and after quoting therefrom have obviously proceeded on the basis that the same is an authoritative declaration of the law on the point. Therefore, if at all it was necessary, the opinion in the U.P. Legislature''s case stands sanctified by the subsequent approval in the regular judgments of the Supreme Court itself. 250. In the alternative it appears to me that atleast so far as this Court is concerned the issue must be plainly decided in favour of the Petitioner. It is well settled by authority that a considered view expressed by the Supreme Court is nevertheless binding on the High Courts even though in strictness the decision of an issue may not have been necessary in the case. In other words, an express decision rendered by their Lordships after appraising the arguments by either side would nevertheless be binding, on the High Courts even though it may be obiter dictum. That being so there can hardly be any doubt that the detailed and exhaustive opinion rendered in U.P. Legislature''s case, must for identical reasons be equally binding on this Court. 251. Lastly even if it be assumed for a moment (without so holding at all) that the judgment of their Lordship in U.P. Legislature''s case is not in a technical sense binding on the Court, I am still of the view that it presents the most exhaustive and elaborate enunciation of the powers, privileges and immunities exercised by a State Legislature by virtue of Article 194(3). The matter was argued before their Lordships at length by the counsel of the greatest eminence. Chief Justice Gajendragadkar speaking for the majority in terms first observed that it was necessary that the basic question regarding Parliamentary privileges under Article 194(3) should be determined and then proceeded to render the requisite answers to the questions which necessarily arose. The judgment is and has been universally considered as the locus classicus on the point. Therefore, as a persuasive precedent also I would agree with every observation arrived at by the majority in the said case. 252. For the foregoing reasons I cannot but hold that the U.P. Legislature''s case is a binding precedent for this Court and consequently in the event of any conflict with smaller Benches of the Supreme Court the considered view expressed therein by the majority is plainly entitled to preference. 253. The British House of Commons with its gradual and continuous evolution extending over a period of well nigh twelve centuries is perhaps an institution without parallel. The epithet of being a self-created body has been sometimes applied to it and also not inaptly it has been styled jointly with the House of Lords as the mother of Parliaments. In the context of an unwritten Constitution in England, the House of Commons has undoubtedly claimed and enjoyed the privilege of providing for and regulating its own Constitution from the very earliest times. This privilege in terms and in effect implies and includes all powers to control the composition of the House and to determine the identity of its membership. The existence and the exercise of this peculiar privilege in the, House of Commons is indeed indisputable. The, issue, however, at once arises whether by virtue of Article 194(3), the State Legislatures in India inherit any such power to provide or regulate their own Constitution ? The answer to this question seems inevitably to in a categorical negative. However, in significant constitutional issues it is inapt to depend wholly on the concession of the parties or to proceed on a basic assumption unsupported by reasons I, therefore, deem it necessary to advert, however briefly, to the factors which make it self-evident that in our detailed written Constitution, there does not arise even the remotest question of the State Legislatures having the privilege to provide or regulate their own constitution. 254. Reference in this connection may first be made to Article 3 of the Constitution. This empowers Parliament to make laws to form a new State by separation of the territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State. In express terms, Parliament is empowered by law to increase or diminish the area of any State and to alter its boundaries. Article 4 then authorises the enactment of all legislation which may be necessary to give effect to the aforesaid provisions and which may in terms provide for the representation in the Legislatures of State or States affected such law. It is plain from these provisions that by enlarging or diminishing the territories or creating new states etc., Parliament is authorised to vary the composition, the number and in some ways the very existence of a State Legislature. Our attention was then drawn to Articles 168 and 169 which provide for the constitution of the State Legislatures some of them being unincameral whilst others bicameral. Herein again Article 169 empowers Parliament to abolish the Legislative; Council of a State in those States where it exists in accordance with the procedure laid thereby. Thus power is vested in Parliament to substantially alter the very composition of the State Legislatures by providing that a State having a bicameral Legislature may be altered to a unicameral one. Equally power is vested therein to convert a unicameral Legislature into a bicameral one. These, provisions were highlighted on behalf of the Petitioner as a patent sign of the inability of a State Legislature to provide or regulate its own constitution because the very existence of one House, namely the Legislative Council of a State was dependent on the statutory power of Parliament to create or abolish the upper Houses. Proceeding further, Article 170 deals with the composition of the Legislative Assemblies in each State and the maximum and the minimum number of members therefore has been laid down by law. The ratio between the population of each constituency within the State and the number of seats allotted to it has then been directed to be maintained at the same level throughout the State. In particular, Clause (3) of Article 170 provides for the division of each State into territorial constituencies which shall be re-adjusted by such authority and in such manner, as Parliament should by law determine. It was pointed out in this context that the Parliament has constituted under the said provision a Delimitation Commission which determines the number, composition and territorial nature of the constituencies for each State Assembly. Similarly it is pointed out that Article 171 provides, even in greater detail, for and completely controls the composition of the Legislative Councils wherever existing. 255. The Petitioner placed particular reliance on Article 172 which provides for the normal tenure of five years for a State Legislative Assembly. On the basis of this provision, it was contended that a duly elected member of the Assembly had a guaranteed right under the Constitution to continue to serve in the State Legislature for five years subject to the two exceptions namely the power of the Governor to dissolve the House and a similar power in the President of India to do so under Article 356. It was, therefore, submitted that the duration of the State Assembly and the mode and manner of its dissolution are not in the hands of the Legislatures themselves but are completely controlled by constitutional prescription or by Parliament. 256. Article 173 and 191 are obviously complementary to each other. Whilst the former prescribes the positive qualifications for the membership of the State Legislature, the latter lays down the disqualifications for the membership thereof. These have been pointed out to highlight the fact that whereas the House of Commons by virtue of its privilege to provide or regulate its own Constitution is empowered to prescribe both the qualifications and disqualifications of its members, the State Legislatures in India are completely denuded of any such powers which are precisely laid out in terms by these two Articles. Indeed the Petitioner went to the length of contending that these provisions are exhaustive in their essence and cannot be supplemented or detracted from except by an express enactment made by Parliament and not as a matter of inference from any other source of power as for instance under Article 194(3). Article 174 was adverted to in order to show that a constitutional obligation is laid out thereby on the State Legislatures to meet at least within six months. Thus the minimum number of their sessions in a year are undoubtedly fixed by the Constitution itself. This was contrasted with the powers of the House of Commons where there is no such provision and indeed the House meets or calls its own session under the writ issued by the Speaker himself. 257. The unique institution of the Election Commission provided for by Article 324 was pointed out to highlight the difference of the complete control exercised by the House of Commons in regard to its elections on one hand whereas under the Constitution the superintendence, direction and control of elections is vested entirely in the independent statutory body of the Election Commission. Thereby the power to issue writs for filling vacancies through by-elections and even those regarding general elections is vested entirely in the election Commission which is in sharp-distinction with the powers of the House of Commons to fill its own vacancies and to issue writs for the holding of by-elections etc, to the sharrifs. 258. Article 327 appears to contain a residuary power empowering Parliament alone to make laws in connection with the preparation of the electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of the State Legislatures. Apparently if the Parliament does not exercise this power vested primarily in it then the State Legislatures are left with a limited power to enact legislation in an area which has not already been covered by parliamentary legislation. 259. Lastly, reference was made to Article 333 to 334 which provide for the reservation of seats for the Scheduled Castes and other communities in the State Legislatures and these in a manner provide for the composition and the character of the membership thereof. 260. Our attention was also drawn to a number of other provisions in the constitution but it would perhaps be dilatory to advert to them. It is, however, plain that in view of the afore-noticed salient provisions, the State Legislatures in India are: (a) completely subservient to and controlled by the written provisions of the Constitution of India ; (b) materially and substantially sub-servient to Parliament ; and (c) equally subservient to all parliamentary legislation authorised by the Constitution in regard to the composition and the regulation of the membership thereof. Apart from the constitutional provisions noticed above, it has been held by the highest authority that owing to its very nature, the State Legislatures cannot claim the privilege of providing for or regulating their own constitution. In the U.P. Legislature''s case, Chief Justice Gajandragadkar in no uncertain terms observed as follows in this context: *** These 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. 261. I would expressly notice that in view of the overwhelming weight of principle and precedent, the learned Advocate General of Haryana was fair enough to concede that he was unable to challenge the stand taken by the writ Petitioner. 262. On this aspect of the case, I conclude that it is beyond the pale of any controversy that the Haryana Vidhan Sabha under Article 194(3) or otherwise has no power to provide for or regulate its own constitution unlike the House of Commons in England. 263. Having answered the first three salient questions indicated by me earlier (at page 238 of this report) I now arrive at what appears to be the central arena of the controversy. It was not disputed before us that the House of Commons undoubtedly has a very wide ranging power to expel any one of its members. This position has been unreservedly accepted by the Petitioner himself. However, the crucial question that arises is whether this admitted power of expulsion vesting in the House of Commons is an integral and indivisible facet of its fundamental parliamentary privilege to provide for and regulate its constitution. The Petitioner''s firm stand is that this is so. According to him, this power of expulsion is also a mode or manner of exercising the basic privilege referred to above. In the alternative it is contended that the power of expulsion is a necessary adjunctive and ancillary power to effectuate the purpose of providing for and regulating the composition of the House of Commons. It is this rather intricate question to which I must now address myself. 264. That brings me to the verge of the thicket which undoubtedly the British Law of Parliamentary Privilege is. It has been aptly said-- This law and custom of Parliament is sought by all, is ignored by many, and is known by few.
If the above is true in England, it is indeed the, more so in India. Even authoritative British Constitutional writers including Sir William Anson have highlighted the difficulties and intricacies of this subject. Therefore, one must tread warily in this path and proceed with great circumspection. I (cannot however, withhold my sense of obligation to both the Petitioner and the learned Advocate General of Haryana for the great assistance which they had rendered us in a relatively untrodden field. 265. Inevitably and indeed admittedly the question has to be resolved by reference to the authoritative works on the British Constitutional law pertaining to the law of Parliament or what in strict terminology is called lex-et Consuetudo Parliament. In this context I may notice at the very beginning a broad submission made by the Petitioner which has the patent merit of plausibility. He submits that the classic work of Sir Erskine May on Parliamentary Practice is undoubtedly a book of authority but pointedly highlights the facts that it is authoritative only as regards the practice and procedure of the two Houses British Parliament. It is contended that the existence or extent (and perhaps even the application) of a particular Parliamentary privilege is in strictness a question of English Constitutional Law. In other words, it involves an interpretation and exposition of lex et consuetudo parliament. Thus the very existence of a parliamentary privilege is a substantive issue of parliamentary law and not a question of mere procedure and practice. Therefore, the Petitioner contends that herein the authoritative opinions of Constitutional authors of eminence, like Anson, Maitland, Halsboury, Keir and Lawson and Wade and Philips should primarily weigh with the Court. It was highlighted that Sir Erkine May himself and subsequently, the learned Editors of his classic work have themselves relied on the aforesaid authors, at least for the purpose of determining the existence and extent of a parliamentary privilege. The Petitioner seems to be right in submitting that the primary expounders of the law of Parliament in England are the authors aforesaid and not necessarily May''s Work on parliamentary Practice which is primarily concerned with procedure and wherein the treatment of parliamentary privilege is rather disjointed. In any case the Petitioner''s submission was that the treatment of the subject by May has to be understood and applied in the background of the opinion of the more authoritative constitutional authors. 266. There appears to be weight in the aforesaid submission of the Petitioner, which apart from its intrinsic value seems to be well supported by the view expressed by one of our own eminent constitutional authors. Mr. H.M. Seervai in his celebrated work The Constitutional Law of India (Second edition) at page 1179 whilst critically appraising the judgment in the U.P. Legislature''s case also benoans the fact that greater reference and reliance was not placed by the Bench on writers of the highest authority like, Maitland, Anson, Dicey and Keir and Dawson. I am hence inclined to the view that the pride of place must be accorded to the opinions of the aforesaid constitutional authors on the question of parliamentary privilege before adverting to its exposition by Sir Erskine May. To begin with, one may first turn to the lucid statement of law on the point by Sir William Anson in his classic work, ''The Law and Custom of the Constitution'' (Fourth edition 1969). Chapter IV thereof deals with and is titled as ''The House of Commons. Therein Section IV is devoted to the privileges of the House of Commons and bears the same sub-title. Anson divides the privileges of Parliament broadly into two classes. First are those privileges which are specifically asserted and demanded of the Crown at the commencement of every Parliament and some instances thereof are the privileges of free speech, of access to the Crown and of having the most favourable construction put upon all their proceedings. The author opines that apart from these some others are the undoubted privileges of the House of Commons regarding which no formal demand or request is made by the Speaker to the Crown and which nevertheless are regularly asserted and enforced by the House. Included in this class is the fundamental privilege claimed by the House of Commons to provide for and regulate its own Constitution. Anson deals with this privilege exhaustively (from page 167 onwards) and lucidly sub-divides the mode and manner of its exercise. In sub-heading (1) he mentions the filling of vacancies within the House by a warrant issued by the Speaker to the appropriate authority for the return of a member from the relevant constituency to supply the vacancy. Under sub-heading (2) the trial of disputed elections is discussed which pertains to the rights of the House of Commons to determine all questions of disputed elections which it exercised from 1604 to 1868 when by the Parliamentary Elections Act of that year it was assigned to a Judge of one of the superior Courts of Common Law and it is now exercised by the King''s Bench Division of the High Court. Sub-title (3) herein deals with the right of the House to pronounce on the existence or otherwise of the legal qualifications or disqualifications of any one its members. The significant sub-title, however, is numbered (4) included as it is, expressly within the privilege of the House of Commons to provide for and regulate its own Constitution. This observes pointed notice by quotation of the relevant part thereof: Unfitness to serve a cause of expulsion, Case may arise in which a member of the House, without having incurred any disqualification recognised by law, has so conducted himself as to be an unfit member, of a legislative assembly. For instance, misdemeanour is not a disqualification by law though it may be a disqualification in fact, and the House of Common is then compelled to rid itself of such a member by the process of expulsion. But expulsion, although it vacates the seat of the expelled member, does not create a disqualification and if the constituency does not agree with the House as to the unfitness of the member expelled, they can re-elect him. If the House and the constituency differ irreconcilably as to the fitness of the person expelled, expulsion and reelection might alternate throughout the continuance of a Parliament. In 1769 the House, irritated by the re-election of Wilkes whom it had expelled, proceeded not merely to expel him again but to declare his election void. The House thus endeavoured to create a new disability depending on its own opinion of the unfitness of Wlilkes to be a member of its body. Being at that time a judge of returns the House was able to give effect to its decision and in February, 1770 to declare a subsequent re-election of Wilkes to be void, the votes recorded in his favour to be thrown away, and the candidate next on the poll to be duly returned. But the arbitrary conduct of this House of Commons was not imitated by its successors. Wilkes was elected to serve in the new Parliament of 1774 and took his seat without question. Anson further proceeds under this very sub-title to give the procedure for expulsion which is ultimately made on a motion moved in the House and adopted either in favour or against the recalcitrant member. 267. It is plain, from the above high authority of Anson himself that according to him, expulsion was the fourth mode or facet of the House of Commons to provide for and regulate its own Constitution. The subject is dealt with exclusively and exhaustively in its proper context here. Later, however, when an ancillary reference is made to expulsion as punitive power exercisable by the House, Anson again highlights its true nature and character by the following observations: But expulsion is a matter which concerns the House itself and its composition, and amounts to no more than an expression of opinion that the person expelled, is unfit to be a member of the House of Commons. The imposition of a fine would be an idle process unless backed by the power of commitment. It is, then the right of commitment which becomes, in the words of Sir E. May, ''the keystone of Parliamentary privilege''. It remains to consider how it is exercised and by what right.
It is thus evident that in an authoritative and correctly classified exposition, Sir William Anson has treated expulsion as essentially a power which is part and parcel of the basic privilege of the House of Commons to control is composition. 268. Turning now to Halsbury''s Laws of England which again is a work of unquestioned authority it may briefly be noticed that the privileges of Parliament are classified in part 7 of Volume 28 of the Third Edition by Lord Simonds. In the classification of these privileges Sub-section (3) of Section 2 deals exclusively with the privileges peculiar to the House of Commons Therein after making particular reference to the claim of the House of Commons to the exclusive right of providing as it deems fit for its own proper constitution, the learned author expressly deals with the power of expulsion as the first mode thereof, and the power to fill vacant seats whilst the House is sitting or during prorogation or adjournment is dealt with later. The paragraphs deserve pertinent notice: 905. Privileges of the 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. 906. Power of expulsion. Although the House of Commons has delegated its right to be the judge in controverted elections, it retains its right to decide upon the qualifications of any of its members to sit and vote in Parliament. If in the opinion of the House, therefore, a member has conducted himself in a manner which renders him unfit to serve as a member of Parliament, he may be expelled from the House, but, unless the cause of his expulsion by the House constitutes in itself a disqualification to sit and vote in the House of Commons, it is open to his Constituency to re-elect him. The expulsion of a member from the House of Commons is effected by means of a resolution, submitted to the House by means of a motion upon which the question is proposed from the chair in the usual way. What, however, is of equal, if not greater significance is the fact that Halsbury in |the following Section 3 (page 464) deals in terms with Breaches of Privilege and Contempts and Sub-section (1) thereof is titled as the penal Jurisdiction of the two Houses. This is dealt with distinctly in paragraphs 909 to 913. An express mention Is made of Reprimand and admonition; power to commit for contempt; period of such imprisonment and the distinction between these offences and their nature; etc. Expulsion is conspicuous by its absence in the penal jurisdiction of either of the two Houses of Parliament. This, to my mind, is of great significance because in terms and effect the claim on behalf of the Respondents is that expulsion from the House of Commons is within its penal jurisdiction and is imposed as a measure of punishment for contempt. If this were so, one fails to see why so lucid an author like Halsbury would not even remotely make mention of it in either the penal jurisdiction of the Houses or in regard to the breaches of privileges and contempt but instead place it entirely within the peculiar privilege of the House of Commons to control its own composition. 269. Reference may now be made to the Constitutional History of England by Maitland (first edition 1908--reprinted 1941). But at the outset it deserves recollection that this work is the publication of a course of lectures delivered by Professor Maitland and it appears that this was done despite the express wish of the author to the contrary. The Petitioner was, therefore, right in pointing out that certain passages in the book are of a more graphic nature in order to hold the attention of the audience and obviously to highlight a subject or a point in an interesting manner. Consequently the classification of a particular subject lacks that such precision which would perhaps be possible in more formal constitutional treatise. In the present work, Maitland has attempted to draw a sketch of the public law at five periods beginning from the inception of the fourteenth century onwards. The Petitioner pointed out that the relevant part for our purpose is the last period when the powers, privileges and immunities of the House of Commons assumed shape by usage and custom. According to him, the earlier exercise of privileges from the 14th to the 18th century may have sometime fallen into utter desuetude and indeed may furnish only an example of an arbitrary and sometimes oppressive exercise of uncanalised power by the House. 270. Herein the Petitioner points out that Mainland in pariod V of his book deals at page 351 with the House of Commons under heading III. After dealing with the membership and the qualifications of the voters as also principles and the mode of election, Maitland deals in title 5 with the power of determining disputed elections by the House of Commons. Undoubtedly this is one fact of the privilege of the House of Commons to provide for and regulate its own Constitution. Following close on its heels is title 6 which deals obviously with the vacation of seats in the House by incurring disqualifications. This again is a power vested in the House because of the peculiar privilege noticed above. It is in this context and in title of that Maitland refers to the power of expulsion in the following terms: The House has an undoubted power of expelling a member, and the law does not attempt to define the cases in which it may be used. If the House voted the expulsion of A.B. on the ground that he was ugly, no court could give A.B. any relief. The House''s own discretion is the only limit to this power. Probably it would not be exercised now-a-days, unless the member was charged with crime or with some very gross mis-behaviour falling short of crime, and in general the House would wait until he had been tried and convicted by a court of law. In 1856 a member who had been indicted for fraud and who had fled from the accusation was expelled.
From the content of the above-said statement and in particular because of the context in which it has been placed, the Petitioner has plausibly argued that Professor Maitland had also dealt with the power of expulsion by the House of Commons as being a part and parcel of its basic privilege to control its own composition. 271. Coming now to relatively modern but nevertheless distinguished constitutional writers, I may first turn to the well-known work oil the Constitutional Law by Professors Wade and Phillips (Eighth edition). The learned authors have dealt with the subject of privileges of Parliament in Chapter 10 of their work. After dealing with the privileges of the House of Commons which are demanded from the Sovereign at the opening of each session, namely, those of freedom of arrest, freedom of speech, privacy of debate and Parliamentary Papers etc., it is pointed out that the House of Commons has the undoubted privilege to control its own proceedings and to provide for its own proper Constitution. In elaborating the later privilege, reference is made to the power of the House to determine the disputed Elections which it has, under its own authority, delegated to the High Court of Justice. Closely on its heels and obviously as part of the same privilege, the commentators have this to say about Expulsion under a distinct title: Expulsion : The House of Commons still retains the right to pronounce upon legal qualifications for membership, and to declare a seat vacant on such ground. The House may, however, as in the case of Mitchel (1875), I.R. 9C. 217 refer such a question to the Courts. The House of Commons cannot, of course, create disqualifications unrecognised by law, but it may expel any member who conducts himself in a manner unfit for membership. A constituency may re-elect member so expelled, and there might as in the case of John Wilkes, take place a series of expulsions and re-elections. Expulsion is the only method open to the House of dealing with a member covicted of an offence.
From the aforesaid portion, the Petitioner points out that the subject of expulsion is dealt with by the learned authors as inextricably linked with the determination of the legal qualifications or disqualifications for the membership of the House of Commons a power which they undoubtedly derive only from their privilege to provide for their own constitution. By virtue thereof alone the House of Commons has the peculiar right to judge upon the fitness or unfitness of anyone of its members to continue as a legislator. It was further pointed out that Professor Wade and Phillips plainly treat expulsion as an inevitable consequence, where the House takes the view that a member has conducted himself in such a manner as to be unworthy of membership of the august House. Nowhere in the whole treatise, according to the Petitioner, have the learned authors treated expulsion as a measure of punishment for the offence of contempt. 272. A passing reference may now be made to the equally well-known work Cases in Constitutional Law (fifth edition) by Professor Keir and Lawson. In the introduction to cases of Parliamentary privileges (page 263) the learned authors divide them into three kinds without being exhaustive. Firstly, they mention the exclusive jurisdiction over all questions which rise within the walls of the House except perhaps in cases of felony. A well-known illustration of the privilege is the celebrated case of Bradlaugh v. Cessett. Secondly, are the personal privileges which attach to the members oft Parliament, amongst which are the freedom of debate, immunity from civil arrest, etc. The last clause is briefly specified as follows: (iii) The power of executing decisions are matters of privilege by committing members of Parliament, or any other individuals, to imprisonment for contempt of the House. This is exemplified in the case of the Sheriff of Middle sex.
From the above statement, the Petitioner sought to highlight the fact that even as regards the members of Parliament, expulsion is not even remotely mentioned as a punitive power for contempt. 273. The most categorical classification of the rights exercisable by the House of Commons which flow from its basic privilege of providing for its due composition has then been made by the celebrated author E.W. Ridges in his well-known work on the British Constitutional Law. This deserves notice in some detail. At page 65 of the Eighth edition, the subject is dealt with as follows: The Rights to provide for its Due Composition. This comprises (a) The right of the Speaker to secure the issue of a new writ on a vacancy occurring during the existence of a Parliament, * * * (b) The right to determine questions as to the legal qualifications of its own members " * * (c) The right to expel a member although subject to no legal disqualification. So, in 1621, Sir R. Floyd was expelled merely because he was a holder of the monoply of engrossing wills, * * and (d) Formerly the House claimed from the reign of Elizabeth and exercised the right to determine questions of disputed election, * * *. The aforesaid classification perhaps would leave no manner of doubt that the right of expulsion vested in the House of Commons is in esence a facet of its rights of provide for its due composition. Though Allighan''s case would have to be adverted to in some detail later it may be noticed forthwith that in Ridge''s Constitutional Law, this case is epressly dealt with under Sub-clause (c) noticed above as an example of the House-of Commons power to control its own composition. 274. Lastly in this contet, the Encyclopaedia Britannica might as well be consulted in Volume 8 at page 996. The relevant statement is as follows: EXPULSION, the act of removing a person from the membership of a body or the holding of an office, or of depriving him of the right of attending a meeting, etc. In Great Britain the House of Commons can by resolution expel a member. Such resolution cannot be questioned by any court of law. But expulsion is only resorted to in cases where members are guilty of offences which render them unfit for a seat in the house. It is customary first to order the member, if absent, to attend in his place, before an order is made for his expulsion.
It is self-evident from the detailed references above that authoritative British Constitutional authors including Anson, Halsbury, Maitland, Wade and Phillips, Keir and Lowson and Ridges have all either expressly or by necessary implication treated and described the power of expulsion vesting in the British House of Commons as part and parcel of its basic privilege of providing for and regulating its own Constitution. 279. It is with this background that one should now turn to the well-known work of Sir Erskine May on Parliamentary practice (18th Edition-all references hereafter to pages are of this edition). It would perhaps bear repetition that the work is undoubtedly authoritative only as regards British Parliamentary practice, procedure and the usages, thereof, though there is no gainsaying the fact that the law and privileges of Parliaments are also dealt with therein. A reference to the treatise, however, would bear out the criticism levelled by the Petitioner that the learned author has not necessarily employed the analytical method nor does he deal with the various topics exhaustively in a consolidated form and in separate Chapters. There are innumerable cross-references. Adverting to the particular topic, with which we are concerned, it is noticeable that the privilege of the House of Commons with respect to providing for its own Constitution has been partly dealt with in Chapter VIII (at page 108) of the Eighteenth (1971) Edition. Undoubtedly the right to determine disputed elections as also to provide for the qualifications or disqualifications for the membership of the House of Commons flows from this privilege. Nevertheless the trial of controverted elections has been discussed and dealt with in detail in the earlier Chapter II titled as ''Elections''. Similarly the disqualification for the membership of the House of Commons is again more exhaustively expounded upon in Chapter III. In this very Chapter at page 39, it has been mentioned that a person convicted of a misdemeanour is not thereby disqualified for election Or for sitting and voting, but when a member is so convicted, the House might decide to expel him, but such expulsion does not in itself create a disability or prevent a constituency from re-electing the expelled member. After having referred to this aspect of the expulsion, a cross-reference is made for further discussion at page 130 included in Chapter IX of the work. Indeed sometimes the disjointed nature of treating a particular subject has been noticed by the learned Editor Sir Barnett Cocks himself with the following observations in the preface of the book itself: * * x. A new chapter on ''Elections'' has been formed out of material hitherto divided inconveniently between different sections of the book. The chapter On ''Disqualification for Membership of Either House'' has been brought forward, so that all matters relating to the Composition of the two Houses are now dealt with together at the beginning of the work.
From the above, it seems to be plain that owing to the wide range of the subject dealt with in the May''s Parliamentary Practice and certain innate difficulties with regard to the topics of Parliamentary privileges, the method employed in the treatise for dealing with them appears to be more graphic and descriptive rather than being strictly analytical and consolidated. 276. It is in the above background that the reliance on behalf of Respondents on certain statements in May''s parliamentary practice is to be viewed. Some emphasis was placed by the learned Advocate-General on the fact that expulsion by the House of Commons has also been, dealt with by May in Chapter IX which pertains to the penal jurisdiction of the House of Parliament and their powers to inflict punishment for contempt. Particular reliance was placed on the statement at page 127 that in, cases of contempt committed in the House of Commons by its members, the penalties of suspension from the House and expulsion were also available and in some cases they had been inflicted cumulatively. However the true nature and content of the power of expulsion is stated by May himself in that very chapter at page 128 as follows: Expulsion by the Commons : 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.
277. Three salient things emerge from the above. Firstly, May leaves no manner of doubt that expulsion is an example of the House''s power to regulate its own constitution. The essence and nature of the power is thus characterised in no uncertain terms. It deserves repetition that earlier he had adverted to expulsion in Chapter III pertaining to the disqualification for membership of the house and therein made a cross reference to the later chapter. Secondly the learned author himself seems to explain as to why he is treating it in Chapter IX and the reason given is entirely of convenience. It is plain that the results of expulsion are gravely adverse to a sitting member and, therefore, the learned author has with an explanation chosen to deal with it with other punitive powers of the House of Commons. However, can the mere convenience of an author or his editor (to deal with the subject in a particular chapter) alter the basic character or nature of parliament''s privilege? The answer to this question to my mind must always be in the negative. Thirdly, May himself highlights the fact that expulsion is neither disciplinary nor punitive but is a purely remedial measure intended to rid the house of persons who in its opinion are unfit for its membership. It is thus plainly the exercise of the privilege to determine and control its own membership. This stand negates and destroys the basic premise canvassed on behalf of the Respondents that expulsion is punitive and a measure of sentence for the offence of contempt of the House or its members. It thus appears to me that viewed in the correct perspective of the background of other constitutional authors and when appraised correctly the statement in May''s Parliamentary Practice is equally destructive of the stand taken on behalf of the Respondents. 278. If ever any doubt remains about the statement of the law on this point by May, it would stand easily dispelled by the candid opinion rendered by Sir Barnett Cocks, the former Clerk of the House of Commons for many years and the distinguished editor of the sixteenth, seventeenth and eighteenth editions of May''s Parliamentary Practice. Indeed sometimes Sir Barnett Cocks has been called the modern May. The authoritativeness of his opinion was not seriously questioned even on behalf of the Respondents. 279. Reference in regard to the above may now be made to the report of a very distinguished Committee of Privileges of the House of Commons dated the 16th June, 1964, rendered in the well known case of Rt. Hon. Quintin Hogg, Lord President of the Council and Secretary of State for Education and Science. Sir Barnett Cocks was specially called in and examined by the Privileges Committee regarding the essence and the real nature of this parliamentary Privilege. The questions addressed to him and his lucid and considered replies deserve notice verbatim. Mr. Attorney General. 155. I would like to ask, was not the position in those days that the House of Commons had a complete control over its own membership, and there is nothing to show whether in that case they were merely exercising their power to control their own membership or were treating the behaviour of Asgill as either a contempt of the House or a breach of privilege ?
Sir Barnett Cocks. Yes. The House has control, of course, today over its own membership. It is illustrated in Erskine May as one of the privileges of the House to control its own membership and to expel members who are unworthy of membership, to control its own composition, certainly. The Chairman Mr. Salwyn Llyod Then there is a fourth case, and this I ask because of my anxiety about tre Garry Allignan''s case. Really, can there be a situation apart from all those when a person is simply expelled for disreputable conduct which really has nothing to do with Privilege or contempt but it is simply because the House regarded one of its members as unfit to sit in it and therefor, it simply says "On the grounds of your disreputable conduct"--nothing to do with Privilege or contempt--"we expel you." Sir. Barnett Cocks Yes, I think you are quite correct, Sir, and perhaps I could read a sentence from Erskine May on page 53, about the cases to which Members have been called to account and punished for offensive words spoken before the House.
Marold Wilson But what you meant there was that the House of Commons had certain Privileges, one of which was to determine its own membership, therefore, action was being taken under that particular privilege when it expelled Asgill or, indeed, expelled other people at other times, though the mere fact that that is an exercise of a Privilege by the House is not the same thing as saying that the offence which led to the man''s expulsion was itself a breach of Privilege. Would that be fair ?
Sir Barnett Cocks I think a Member can be expelled for conduct which need not be related to one of three or four existing Privileges.
280. I would refrain from making further quotations or detailed references to the authoritative opinion of Sir Barnett Cocks given in Quintin Hoggs'' case. However, it appears plain therefrom that he also regards the power of expulsion in essence as another facet of the basic parliamentary privilege of the House of Commons to provide for its own constitution and determine its membership. According to Sir Barnett Cocks it is this peculiar and uncanalised power by virtue of which the House of Common, can expel members for, undefined and unspecified reasons which may indeed be completely and wholly unrelated to any breach of privilege of the House or its contempt. Far from being a punitive measure of express punishment for contempt of the House, it is to recall Professor Maitland''s colourful illustration, an unguided power to expel one of its members on the ground that he is too ugly to adorn its august chamber and no Court would be able to give any relief to such a member. Finding on issue (d) To sum up on this aspect of the case, it appears plain to me that on the authority of the British Constitutional authors, like Anson Halsbury, Maitland, Wade and Phillips, Keir and Lawson, Ridges and including the opinion of May and his distinguished, editor Sir Barnett Cocks, there is hardly any doubt that the power of the House of Commons to expel one of its members is rooted from time immemorial in its basic privilege to provide for and regulate its own constitution. It is indeed an integral and indivisible facet of the said privilege and of no other. Having answered above, what appears to me as the most significant issue in the present case, it nevertheless, is both necessary and fair to advert to some English cases which were repeatedly pressed for our consideration on behalf of either party. This appears to be the appropriate stage for their consideration. However, before I refer in detail to one or other of these cases, it is expedient to. sound a note of warning. 281. On behalf of the Respondents an attempt was made to rely on a number of old and if I may say so, ancient precedents of the 15th, 16th and 17th and at the turn of the 18th century to show the exercise of the power of expulsion or commitment by the House of Commons in that period. I believe, it is not only wasteful but perhaps dangerous to refer to most of them. As is well known, that was the time when the Divine Right of King''s theory was not merely being proclaimed but was actually being sought to be put in practice by the Monarchy. Therefore, the curious and sometimes arbitrary actions of the House of Commons whilst waging a fierce; struggle against the prerogatives of the Crown on the one hand and the House of Lords on the other are hardly precedents of parliamentary privilege in a democratic set up. Indeed these precedents tend to highlight the arbitrariness and sometimes even the oppressive use of power Which subsequently had been university described by Constitutional authors as wholly unwarranted. Therefore, these precedents from the dark ages till the turn of the 18th century in England seem to me to lie more appropriately on the dust heap of political and constitutional history of England and are of no aid for considering the existing law of parliamentary privilege in the middle of the 20th century. 282. The Petitioner has been rightly able to highlight that not one but innumerable archaic privileges which were supposedly exercisable by the House of Commons for long, had since fallen into utter desuetude by the 26th January, 1950, the date with which we are primarily concerned. For instance, the undoubted privilege of impeaching political opponents which was repeatedly exercised by the House of Commons had fallen into utter desuetude and had passed into the realms of legal history only because there has never been any exercise of this privilege for more than two hundred years. Similarly for centuries now, the House of Commons had never even attempted to pass an Act of Attainder. More directly, the power of the House to impose specific fines of money which probably was a remnant of the historical fact that the Commons was also deemed as the High Court of Parliament and a Court of Record has also been, abandoned and there has been no exercise of this power for hundreds of years. Instances of this nature can easily be multiplied but that would be dilatory and it would perhaps suffice to refer to one example which has been rightly noticed subsequently as the high water mark of the arbitrariness of the House of Commons in claiming and exercising unlimited and unauthorised powers even in the seventeenth century. 283. In 1689 after the dissolution of Parliament, a court action was brought against Topham who was then the Sergeant at arms attending at the House of Commons. He was charged with wrongfully arresting certain persons in pursuance of general warrants issued by the House. In his defence Topham pleaded the orders of the House of Commons and challenged the jurisdiction of the High Court to entertain the action. His plea was, however, overruled and the Court delivered judgment against him. Many years later in an unprecedented abuse of power, the House of Commons directed the arrest and commitment of the two Judges (Sir Francis Pemberton and Sir Thomas Jones) who had decided that case finally and they were taken in custody by the Sergeant at Arms and brought to the House. They were directed to be imprisoned in the tower of London for a supposed breach of privilege and had to serve their sentences. This case has been rightly highlighted as one of the glaring examples of an oppressive and sometimes malicious use of power which has been universally criticised and condemned by subsequent constitutional authorities as not an example or precedent of parliamentary privilege but as a blatant misuse thereof. Indeed cases of this nature in the eighteenth and the earlier centuries have evoked the following remarks from such a distinguishing authority, as Viscount Kilmuir in his succinct statement of the Law of Parliamentary Privilege''-- * * * There is no doubt that the Parliamentary Privilege Act of 1770 was largely the result of the abuse by some M.Ps. of their personal privileges. If you go back further, you will find that at, and just before, the Civil War Parliament used is powers of committing for contempt in a way which would shock us today. There are always those whose consciousness of their own dignity is exclusive; Parliament, like any other institution, has its share of men who think that to observe true greatness they need but look in the mirror, moreover, as I have pointed out, the procedure is itself considered by some as an abuse because a man can be hauled before the Commons and imprisoned without having normal rights of defence, let alone being represented or calling evidence--and there is no appeal. Assemblies can be less tyrannical and no less unscrupulous than individuals ; * * * * * Occasionally, one I or other House makes a fool of itself in the public eye by claiming too much. When this happens, it does not admit its mistake or wear sackcloth and ashes but it takes very good care not to offend again. Professor Maitland was equally forthright in his lectures on the Constitutional History of England already referred to with the following observations: To a certain extent the House acts according to rules; precedents are collected and to some extent respected, but too often we see questions of privilege treated as party questions and then the House, whatever it may think of itself, becomes truly contemptible. That it has a very dangerous power in its hands is obvious.
284. The Petitioner has particularly highlighted the pitfalls which may result by overly reliance on these ancient cases which are now merely part of legal history. He submitted rather colourfully that it was perhaps a similar misconstruction of the Topham''s case which led to the Presidential reference in the U.P. Legislature''s case in which ultimately the Supreme Court negatived the claim of the Assembly to issue general warrants and other allied but archaic privileges. 285. It thus appears plain to me that resort to precedent''s beyond the mid-eighteenth century in England far from being helpful is indeed misleading. Reference on behalf of the Respondents was sought to be made to such ancient cases as the Hall''s case initiated on February 4, 1580. in the House of Commons. Similarly reliance was placed on Asgill''s case pertaining to the years 1707 A.D. I deem, it unnecessary to refer to other cases of this period and earlier because, it appears to me that the cases and their like are not even remotely precedents which can be usefully adverted to as declaratory of the Parliamentary Privileges existing on the 26th of January, 1950. 286. Indeed the earliest reference in point of time can usefully be made only to the celebrated case of John wilkes, which epitomises the beginning of the struggle against the muzzling of the freedom of press, the cherished right of franchise along with its freedom of the choice of electors of a constituency and the abolition of the arbitrary issuance of general warrants. 287. John Wilkes was elected as a member of the Parliament in 1757. He printed and published a scathing criticism of King III''s opening speech of the Parliament whilst fully highlighting the fact that it was to be considered as the speech of the Prime Minister. Nevertheless the King considered the publication as a personal insult and instigated the, issuance of a general warrant under which Wilkes was arrested and thrown into the tower of London. However, to the delight of the public, he was released therefrom by the order of Lord Chief Justice, Pratt who released him on the ground that his arrest itself constituted a breach of privilege. In the legal proceedings, which followed, the arbitrariness and illegality of general warrants were finally established. However, a second attack was launched against Wilkes by prosecuting him, for the authorship of an alleged obscene parody written by him entirely outside the House of Commons. Nevertheless the House of Commons declared the document as a seditious libel and a motion for his expulsion was brought, forward. In order to escape the simultaneous criminal proceedings, Wilkes was forced to flee from the country and the House of Commons summarily expelled him in his absence by ignoring a medical certificate duly produced and authenticated before it. In 1768 Wilkes returned to England at great personal risk and was re-elected from Middlesex by an overwhelming majority. He then presented a petition to the House of Commons raising the question of the illegality of the proceedings of expulsion against him earlier in 1768. Far from considering the same, the House of Commons instead expelled him against despite his re-election without a shred of a cause He was victoriously elected by the Middlesex Constituency but was again expelled from the House of Commons. In the bye-election, that followed, the electors again reposed their confidence in Wilkes alone and elected him. This time the House of Commons in apparent exercise and indeed abuse of its power to try disputed elections declared his opponent Mr. Luttrel elected in his place though in fact he had polled a paltry 296 votes against 1143 secured by Wilkes. These proceedings of the House of the Commons stirred an explosion of support in favour of Wilkes and the persistent disenfranchisement of the Constituency was highlighted in the public eye. He was reelected to the House of Commons again in 1774 and it was only then that the House of Commons beat a tactical retreat and allowed Wilkes to take his seat in Parliament. Ultimately in 1782, the House of Commons realised its folly and expunged all the earlier proceedings against Wilkes. In the words of Maitland-- * * * Again he was elected, and again the election was declared void. As the passions of the House cooled it came to the conclusion that it had acted illegally, and in 1782 the resolution of 1769 was expunged from the journals as sub-versive of the rights of the whole body of electors of this kingdom.
The Petitioner has forcefully relied upon Wilkes case to highlight the inherent conflict between expulsion on one hand and the cherished rights of the freedom of franchise and the choice of electors on the other. It is cited as an admission by the House of Commons itself nearly 200 years ago of the rights of freedom of speech of the press (exercised by a member outside the four walls of the House) and his right to represent the public of his Constituency. It was contended not without merit that the case far from being a precedent for an arbitrary right of expulsion was indeed an example of the acceptance by the House of Commons itself of the illegality of Wilkes'' expulsion in matters unrelated directly to the proceedings within the Chamber. 288. Equally relevant and celebrated is the case of Charles Bradlaugh which occurred nearly a century later. In 1880 Bradlaugh was returned to the House of Commons from Northampton as an advanced radical. A long and sensational parliamentary struggle then followed. He claimed to be allowed to affirm under the Parliamentary Oaths Act primary on the ground that he was an atheist but this was rejected by the House. In July, 1880 Bradlaugh was expelled and unseated. His constituency, however, re-elected him in 1881 and he then attempted to force his way into the House but was ejected. Court proceedings followed culminating in the well-known cases of Clarke v. Bradlaugh (1881) 7 Q.B.D. 38 and Bradlaugh v. Clarke (1883). 8 App. 1882 Cal. 354 . at the opening of the session. Bradlaugh again advanced up to the House and producing a Bible from his pocket administered the oath to himself. He was again expelled and excluded from entering the House which he challenged in the Queens Bench Division and it was decided in the well-known case of
289. Charles Bradlaugh''s case therefore, highlights the fact that even one century ago, the House of Commons ultimately recognised and admitted the legal right of franchise vested in the constituency and their freedom of choice to elect whom they wish as their representative to the House of Commons. 290. The Petitioner was at pains to point out that the recent cases of a century or more of expulsion by the House of Commons have been primarily those where the members had been convicted of crimes, either felonies or misdemeanours or some crime akin to that. According to him there was no recent case in which a member of the House of Commons had been expelled for exercising a basic right of freedom of speech and press outside the four walls of the House which vests in a member like every ordinary citizen of the country. Indeed, the liberality with which the House of Commons treats and even accepts outspoken and sometimes malicious criticism has been highlighted by the Petitioner for the celebrated ruling of the Speaker in the well-known Times'' case in 1887. Therein the offending words which had been given the Widest circulation by being published in the Times of London were as follows: These things are deliberately planned by men acting under the inspiration of local branches of the National League in pursuance of a policy dictated by the headquarters of the League, and having for its ultimate aim to consolidate the power of the handful of schemers in the House of Commons whom Mr. Gladstone has to obey and at whose disposal Sir William Harcourt is proud to place his resources of his intelligence. History will record with amazement that these men, whose political existence depends upon an organized system of midnight murder, and who draw at once their living and their notoriety from the steady perpetration of crimes for which civilization decrees the gallows, are permitted to sit in the British House of Commons, not only without impeachment, but with the approval, the countenance, and the support of an English party.
A motion was moved in. the House of Commons that there was a clear breach of privilege and contempt of the House by the publication of the said article. In a celebrated ruling the Speaker of the House overruled the motion with the following observation: My attention has been called only a short time ago to the article to which the Hon. Baronet refers; but, however grave the charges and imputations made in that article may be. I do not think it is a case of Privilege. It has been the practice of this House to restrain privilege under great limitations and conditions and these restrictions and limitations have been, in my opinion, very wisely imposed by the House upon itself. The Rule is that, when imputations are made, in order to raise a case of Privilege the imputation must refer to the action of Hon''s Members in the discharge of their duties in the actual transaction of the Business of this House and though I quite understand the Hon. Baronet having brought this matter to my notice, I cannot rule that this is a case of Privilege. Of course, if Hon. Members think themselves aggrieved, they have a remedy and they will not be precluded from pursuing their remedy elsewhere than in this House.
291. It is hardly disputed that on the question of privilege, the aforesaid rule is authoritative and have been unreservedly followed by the House of Commons and the rule enunciated by the Hon''ble Speaker has been invariably adhered to. 292. Reference must now be made to Garry Allighan''s case which appears to me as the cornerstone of the stand taken on behalf of the Respondents. Because of this some reference in detail to the facts thereof becomes inevitable. Garry Allighan was a professional journalist and a member of the House of Commons in 1947. On the 3rd April. 1947, he published an article in the "World Press News" in which he disclosed the secret and confidential proceedings of both the party meeting held within the House and also of certain standing committees of the House of Commons. Proceedings for breach of privilege were initiated against him. The Committee of privileges offorded the fullest opportunity to Garry Allighan in order to establish his defence. He himself gave evidence on oath before the Committee and Was cross-examined by the Attorney-General. The Privileges Committee in its report came to the conclusion that apart from other things Garry Allighan was guilty of having given false evidence before the Committee and for deliberately attempting to mislead. He was also found guilty of bribery insofar as he had admittedly accepted pecuniary consideration for leaking out certain confidential and secret proceedings of the House. After the report had been circulated and considered by the members Garry Allighan was heard in his place by the House of Commons and he made a detailed statement in which he pleaded guilty to all charges except the charge of bribery (on which he prayed to be exonerated) and threw himself at the mercy of the House. After Allighan had been fully heard a debate followed and then the following motion was moved in the House: Resolved. That Mr. Allighan, in persistently misleading the Committee of Privileges in his evidence and in seeking to cast suspicion on others in respect of the very matter of which he knew himself to be guilty, has committed a grave contempt of this House in disregard of the Resolution of this House of the 12th day of November, 1946. That if it shall appear that any person hath given false evidence in any case before this House, or any Committee thereof, this House will proceed with the utmost severity against such offender--(Mr. Herbert Marrison). A Motion was made, and the question being proposed, That Mr. Allighan, a Member of this House, in corruptly accepting payment for the disclosure of information about matters to be proceeded with in Parliament obtained from other Members under the obligation of secrecy, is guilty of dishonourable conduct which deserves to be severely punished as tending to destroy mutual confidence among Members and to lower this House in the estimation of the people--(Mr. Herbert Morrison). And a Debate arising thereupon. 293. It is evident from the above and the proceedings of the House (transcripts whereof were made available to us) that the House of Commons ultimately held Garry Allighan guilty on the twin charges of bribery and perjury. It is, therefore, plain that that Allighan''s case is one on the finding of guilt for the crime of giving false evidence on oath and forr having accepted bribes for the disclosure of secret parliamentary proceedings. He was in terms held to be guilty of dishonourable conduct which rendered him in the eye of the house as unworthy of continuance as a member of the House of Commons and he was consequently expelled. The House of Commons claims to be and is the final Judge of the fitness and unfitness, of any of its members to continue as such. That power flows to it from the fundamental privilege of being able to determine its own constitution. Therefore, even in Allighan''s case the House of Commons was doing no more than ridding itself of a person who was guilty of bribery and perjury and who consequently was unfit to continue as a member. 294. The correct perspective in which Allighan''s case is to be viewed is evidenced from the classification of this case by an eminent authority like E.W. Ridges in his well known work on constitutional law already referred. As noticed earlier, Ridges treats the right of expulsion of a member by the House of Commons as being wholly comprised in the basic right to provide for its due composition. This is sub-divided as Clause (c) of the four clauses under this head. It is under this clause that Ridges treates the expulsion of Sir Robert Eloyd Sir Robert Steel, John Wilkes and in the end of Gorry Allighan as patent examples of the power in the exercise of its right to provide for it due composition. It is thus plain that an author of Ridges eminence views Allighan''s expulsion again as basically flowing from the privilege of providing and regulating its common constitution which undoubtedly vests in the House of Commons. 295. A close analysis reveals that Allighan''s case cannot be of any aid to the case of the Respondents. This is so because the Petitioner unreservedly concedes and indeed it is not in doubt that the House of Commons has an unrestricted and uncanalised power of expelling any one of its members for historical reasons and as an adjunct of the peculiar privilege of determining its own composition. The real question is whether this power can be transmitted to the State Legislatures in India as well. It may be borne in mind that the House of Commons, has expelled its Members for such a wide variety of reasons as enumerated by May in the following words: Members have been expelled as being in open rebellion (g) ; as having been guilty of forgery (h); of perjury (i) ; of frauds and breaches of trust (k) of misappropriation of public money (l); of conspiracy to defraud (m); of fraudulent conversion of property (n); of corruption in the administration of justice (o); or in public offices (p); or in the execution of their duties as Members of the House (q) ; of conduct unbecoming the character of an officer and a gentleman (r); and of contempts, libles and other offences committed against the House itself (s).
296. It is plain from the above that the House of Commons has resorted to its power of expulsion not in one but in tens of cases which have not the remotest relevance to either'' a breach of privilege or to the commission of contempt. For instance, ordinary crimes, like forgery, perjury, frauds, misappropriation o public money, fraudulent conversion of property and conspiracy to defraud which do riot have the least Connection with the breach of privilege, when committed by its members, have been visited by their expulsion; Can it possibly be said, therefore, that the power of expulsion exists as a measure of punishment for ordinary crimes ? Can it even be suggested that the House of Commons when it expelled members guilty of the aforesaid misconducts it was doing so as a measure of punishment for a breach of privilege or of its contempt ? The answer must obviously be in the negative. These are nothing but a plain exercise of the basic privilege to control and determine its own composition which admittedly is peculiar to the House of Commons. 297. An analysis of the numerous cases of expulsion makes it manifest that the moment the House of Commons 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 as also the qualifications and disqualifications thereof. The patent example in this context is a conviction of a member for a misdemeanour. Such a conviction admittedly does not operate as a disqualification for a member to continue in the House but cases are galore where the House came to the conclusion that such a convicted person was not fit to continue in the House and on that ground a member was expelled for that reason. Equally in innumerable other cases members convicted of misdemeanour were allowed to continue as such. Could one for a moment infer from this that the power of expulsion in the House of Commons was as a measure of punishment for misdemeanours ? Again the House of Commons has expelled members for such ethereal reasons that their conduct was unbecoming of an officer or unbecoming of a gentleman. Can one, therefore, say that the power of expulsion is a punitive power for punishing ungentleman like conduct and falling from the high honourable standards of an officer ? I believe, it would be farcical to suggest that the State Legislature in India may expel one of its members on the ground that in its view his conduct was unbecoming of something so undefinable as a gentleman. 298. It is manifest and not in fact disputed that the power of expulsion by the House of Commons has been exercised in innumerable cases entirely unrelated to questions of either contempt or a breach of privilege. Under what authority or source was then this power exercised ? The only and indeed the plain answer thereto is that it was exercised by virtue of the House''s basic privilege to provide for and determine its own composition. The power of expulsion, therefore, flows from that single source. It is indeed indivisible and cannot be cut down into different cross-sections. It is not possible to say, therefore, that though the power of expulsion undoubtedly arises from the privilege of determining its own composition yet a similar and identical power may be imagined to have its source in the power of the House to punish for its contempt. Once it is found--and this seems to be undeniable--that the origin source and exercise of this power of expulsion stems from the basic privilege referred to above, there is no warrant for tracing the same to an altogether different context of the punitive powers against contempt. The punishments for contempt imposed by the House of Commons were clear and well-settled. In exercise of that power, the House could admonish reprimand,, suspend from the service of the House for the session, impose fines and lastly commit the contemner to prison. Authoritative constitutional opinion is unanimous that the power of commitment was the keystone for the maintenance of the privileges of Parliament. 299. I believe that the fallacy and some confusion in this regard arises from the fact that the House of Commons undoubtedly possesses both the privilege of providing for and regulating its own constitution as also the privilege of punishing for its own contempt. As is well-known these privileges as others have their source in custom and usage from times immemorial. They are neither statutory nor codified. In a self-created body, like the House of Commons, both exercising and claiming wide ranging privileges, its powers do not remain in hermetically sealed compartments. Therefore, wherever contempt of the House and expulsion have mingled, it is only because of the fact that the House of Commons may collectively come to the con, elusion that the contemner in its opinion is no longer fit to continue as a member and in exercise of its privilege to determine its composition may proceed to expel him. These cases are nothing but a simultaneous exercise of the powers under two distinct privileges. They are no warrant for the proposition that the power of expulsion is a punitive power for punishing contempt. Indeed it is only an exercise of the independent and exclusive privilege vested in the House of Commons in all cases where in their opinion a member becomes unworthy of further continuance. 300. The uncanalised 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 long historical reasons and because of the unwritten Constitution in England. In the ultimate analysis and in the forceful and picturesque phraseology of Maitland, the House of Commons can and may expel one of its members for being ugly, and no Court in England would be able to give him any relief. Could one infer from this situation that the power of expulsion was a punitive power for punishing ugliness of its members ? Can one think for a moment that the State Legislatures in India can also enjoy or exercise the uncanalised and unguided power of expulsion which Maitland unreservedly and rightly attributed to the House of Commons in England ? I am firmly of the view that no such power can descend to the State Legislatures in India in view of the admitted position that the peculiar privilege of providing for and regulating its constitution which undoubtedly vests in the British House of Commons is by the very nature of things unavailable to our Legislatures. 301. I would now proceed to examine the stand taken on behalf of the Respondents (noticed earlier as point ''e'' at page 238) that the privilege of providing for and regulating its own constitution vesting in the House of Commons can be expressed in three ways only and in no other. It was suggested that there was no fourth manner of expressing or exercising this fundamental privilege. Negatively, therefore, it was sought to be inferred that the power of expulsion being not one of these three ways was consequently not a part and parcel of this privilege. 302. The matter deserves to be and indeed inevitably has to be dealt with from two aspects. Firstly, whether the power of expulsion is an additional or the fourth mode of expressing the privilege of providing for its own proper constitution undoubtedly exercisable by the House of Commons. Secondly, whether the power of expulsion is an adjunctive or procedural power inextricably joined to the three salient aspects of the privilege of determining its own composition. To my mind, from whichever of the two angles aforesaid the matter is viewed, the answer again seems to be clear that the power of expulsion is an integral part of the basic privilege either as an additional mode thereof or as a necessary adjunctive power of the same. 303. Now the corner-stone of the argument on behalf of the Respondents rests on the statement at the very opening of Chapter VIII in May''s Parliamentary Practice. It becomes necessary to first quote the same-- It is a privilege of the House of Commons to provide for its own proper constitution as established by law. The 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. The procedure by which these matters are regulated are described in detail in the chapters relating to Elections and to Disqualification. With respect, if I may say so, the argument on behalf of the Respondents stems from either a misreading of the aforesaid passage or in any case of reading it as exhaustive and out of its context. It bears repetition that whilst May is undoubtedly authoritative on the practice and procedure of the British Parliament, it is not necessarily so regarding the existence and extent of parliamentary privileges for which one must turn to other constitutional authorities as shown earlier. Indeed as already shown the treatment by May on the subject of Parliamentary Privilege is slightly disjointed and dispersed over various Chapters. What, however,, is significant to notice in the following Chapter IX at page 128, May himself refers to expulsion-- The purpose of expulsion is not so much disciplinary as re-medial, not so much to punish Members as to rid the House of persons who are unfit for membership. It may justly be regarding as an example of, the House''s power to regulate its own constitution.
It is thus plain that in so many words the learned author classifies the power of expulsion as another example of the House''s power to determine its own composition. Without authentically numbering it as a fourth or an adjunctive power, May undoubtedly treats it as such. 304. Now going back to the aforesaid quotation from May, it deserves pointed notice that the learned author himself makes a cross-reference with regard to the procedures by which the privilege is to be exercised to the Chapters relating to elections and disqualification. The subject of disqualification is dealt with in Chapter III and at page 39 thereof, an express reference to expulsion is made in the following terms: * * *. A person convicted of a mis-demeanour (or sentenced to any lighter penalty than those described in Section 2 of the Act of 1870) was not thereby disqualified for election or for sitting and voting; but when a Member was so convicted the House might decide to expel him. Expulsion, however, does not in itself create a disability, or prevent a constituency from re-electing the expelled Member (see p. 130.)
It is thus plain from the above that May himself deals with the power of expulsion as one of the necessary adjunctive procedures of the fundemental privilege of the House of Commons of determining its own constitution. 305. In this judgment which despite attempts at compression has gone to some length, I must eschew repetition. As already noticed earlier at page 265 Sir William Anson has in terms classified and numbered the power of expulsion as the fourth mode of expressing the basic privilege. Similarly the earlier quoted portion of Ridges Constitutional Law has equally classified the power of expulsion in terms as Sub-clause (c) of the Privilege of providing for and regulating its own constitution. Earlier references and quotations to Mait land, Wade and Phillips, Keir and Lawson would, to my mind, equally lead to the same result. 306. Examining the matter negatively or in the reverse it may be noticed that no constitutional author or court has so far said that the enumeration of the three broad ways of expressing the basic privilege is exhaustive and conclusive. May does not himself say that the privilege is expressed in three ways only and, in no other mode. Indeed, as I have already shown, he himself refers to the power of expulsion as an additional example of exercising the same privilege and deals with it elsewhere as such. To my mind, it seems to be unwarranted to read even May''s authoritative work on Parliamentary Practice as if it were a constitutional statute and to read a broad and general enumeration by him as if it were exhaustive and exclusive. None of the British Constitutional Writers, to which I have made reference earlier, has ever suggested or even attempted to put the wide ranging parliamentary privilege for providing and regulating its own constitution into a procrustean bed of three ways only and of no other. I am unable to find any justification for such a construction. Therefore, it must be held on the weight of the authority and in fact with the unanimity of all constitutional writers in England that the reference by May to the three ways is a descriptive and a broad classification only. It is obviously illustrative of some of the salient modes in which the wide ranging basic privilege is exercised and cannot be deemed as exhaustive. 307. In passing, a reference must be made to para 45 of the report (A.I.R.) in the U.P. Legislature''s case wherein their Lordship have made reference to the aforesaid statement of law by Erskine May. A closer perusal of the said paragraph makes it plain that the relevant part of this statement was bodily lifted from May''s ''Parliamentary Practice'' and was cursorily referred to only to show that the basic privilege of the House of Commons to provide for its law and determine its own Constitution could not, admittedly, be claimed by the State Legislatures in India. The question whether the statement by May was exhaustive was never before their Lordships nor did they even remotely pronounce thereupon. The U.P. Legislature''s case therefore, is no warrant at all that their Lordships of the Supreme Court have either laid down or accepted any such proposition. 308. Examining the issue from the angle that the power of expulsion in the House of Commons was a necessary adjunctive power of the basic privilege to provide for and determine its own constitution, it deserves particular notice that May himself in that very statement immediately refers to the procedures by which these matters were regulated and which were described in detail in the preceding Chapters II and III relating to elections and disqualifications respectively. The repeated exercise of the power by the House of Commons reveals that in the ultimate analysis expulsion is nothing more than the consequential result of the collective opinion of the House that one of its members is unfit to be and thus disqualified to continue as a member of that august body. Now it has to be borne in mind that the qualifications or disqualifications of membership in England are not determined by any written provisions of the Constitution as in India. The House of Commons undoubtedly has itself the power to determine, the qualifications or disqualifications of its members. It is for this reason that May first mentions and deals with expulsion in Chapter III (at page 39) under the heading of the disqualifications for membership of either House. It is at that place that a cross-reference is made to Chapter IX and for convenience the matter is dealt with in greater detail therein. Therefore, the treatment of the subject by May himself would show that expulsion is itself a procedural or adjunctive power of the basic privilege and has been dealt with as such. 309. On principle also the stance taken by the Petitioner is eminently acceptable. If there is a right to determine the composition of the House and the individual identity of its members, as undoubtedly there is in the House of Commons, it can obviously be exercised only by either inducting fresh members or excluding the existing ones. The mode or procedure for inducting fresh members is the admitted power of the house to issue a writ for the election of a member to the Sheriffs and the complementary mode for excluding a sitting member is by expulsion of one who in the eye of the House becomes unfit to continue as such. Therefore, the induction of fresh members by issuance of writs and expulsion of existing ones would appear to be the necessary adjuncts of the admitted privilege of the House of Commons to determine its own composition. 310. I, therefore, conclude that the statement in May''s Parliamentary practice on the point that the privilege of providing for and regulating its own constitution by the House of Commons being expressed in three ways is merely illustrative and not exhaustive. The power of expulsions is an additional mode of exercising that basic privilege. Even otherwise the power of expulsion can equally be well visualised as an adjunctive or necessary procedural power to effectuate the basic purpose of that very privilege. 311. Last but certainly not the least in this context is the question which was indicated in the earlier part of the judgment as Sub-clause (f) and which for facility of reference may be quoted here again: Whether the power of expulsion is so inherently alien to the tenets of the written Constitution of India as to be unavailable to its State Legislatures in the very nature of things.
It is the Petitioner''s firm stand that this is so and primary reliance is placed by him not only on the larger considerations of principle but on the specific provisions of the Constitution as well. The basic stand herein is that the power of expulsion by a bare majority of the State Legislature is violative of the fundamental and indeed a constitutional right of representation vested in the people. This is again highlighted from two angles firstly, that it conflicts with the cherished right of franchise and representation which in effect means the absolute freedom of choice of the people of the constituency of a State Legislature to elect a person to represent them therein and secondly, this is pointed out to be not a merely legal but a constitutional, right in India. Complementary to this is the right or duty viewed from whichever angle of the chosen representative of the people to serve in the Legislature for a fixed period duty prescribed by the Constitution itself. It is the case of the Petitioner that the fleeting majorities in State Legislatures cannot override these constitutional provisions by claiming for themselves a right to expel a person duly elected thereto. 312. The basic premise on which the aforesaid stand is sought to be rested is the freedom of franchise or the right of representation which underlies the very concept of a Democratic Republic. Reference is made to the classic definition of Immanual Kant that the very idea of a Republic involved in essence a representative system of Government. I believe, it is the more so in our policy which by the Constitution itself has not only been proclaimed as a Democratic Republic but is indeed so. Reliance herein is, therefore, in the first instance on the very preamble of the Constitution itself. Firstly. on its basis it is submitted that the right of representation of the'' people within a State to their Legislature is a fundamental right which cannot and should not be allowed to be easily obliterated. The Petitioner forcefully contents that the high sounding principles of freedom of franchise and representation in practical effect are nothing more but the entitlement of the electors to choose freely whom they like (subject, of course, to the constitutional prescriptions of qualifications and disqualifications'') to represent them in the Legislatures through which they have the right to be governed. It is argued plausibly that even without reference to the specific provisions of the Constitution (noticed hereafter) the freedom of choice of the electorate cannot be curbed or reduced to nullity, by the State Legislature which in itself is a creature of the Constitution. In actual practice the power of expulsion is, therefore, exercisable by a bare majority of the members present and voting and it has, therefore, been characterised as a negation of the right of freedom of choice of the people of the constituency. Therefore, on larger, principle read with the preamble of the Constitution it is contended by the Petitioner with plausibility, that the power of expulsion in the very nature of things is alien to our written Constitution and cannot be read into it by mere implication without its express prescription within the same. 313. The Petitioner, however, does not rest content only with the principle and the preamble of the Constitution but calls in aid a number of other provisions which rightly have to be read together. Herein reliance is first placed on Articles 170 and 172 of the Constitution, the relevant parts whereof may be quoted,-- 170(1) Subject to the Provisions of Article 333, the Legislative Assembly of each State shall consist of not more than five hundred, and not less than sixty members chosen by direct election from territorial constituencies in the State. (2) For the purposes of Clause (1), each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of allotted to it shall, so far as practicable, be the same throughout the State. Explanation : In this clause, the expression ''population'' means the population as ascertained at the last Preceding census of which the relevant figures have been published. (3) * * * * * * 172(1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall, operate as a dissolution of the Assembly; Provided that the said period may, while a Proclamation of Emergency is in operation be extended by Parliament by law for a period not exceeding one year at a time and not extending any case beyond a period of six months after the Proclamation has ceased to operate. (2)* * * * * * * * Analysing the above-said two Articles, it is forcefully submitted on behalf of the Petitioner that Article 170 is constitutional recognition and prescription of the basic right of representation vested by it in each territorial constituency of the State. This is not a right which is merely legal or enacted by ordinary legislation but is unalterably prescribed by the Constitution, itself. Therefore, there is force and content in the argument of the Petitioner that the basic premises of a Democratic Republication system has not been left to be merely inferred but has been integrated in express terms by the authors of the Constitution. Article 172 is complementary to Article 170 in so far as the first declares the right of representation and the latter provides for its duration. By virtue thereof a member chosen by the constituency is entitled by constitutional prescription to serve therein for a period of five years subject to the eventuality of the whole of the Legislature being dissolved by the Governor or the President. In substance, therefore, a right is conferred upon the people of the constituency to be represented by a person of their choice for a specific period and the minimum and maximum extents thereof are duly provided. The expiry of five years from the date of the election operates as an automatic dissolution of the Assembly except for the exceptional provision of its extension during the proclamation of an Emergency. 314. Reading the two Articles together, as indeed they should be, the Petitioner rightly deduces there from that the constitutional rights are conferred upon the people--firstly the right to be represented within the Legislature through a person of their choice for a specified duration, and secondly the complementary right of this chosen representative to serve the Legislature for the same period According to him, expulsion by a majority of the Legislature would directly cut down or in any case make a sizeable inroad into two guaranteed constitutional rights aforesaid which even, otherwise are fundamental to the concept of a democracy and a republic. It was lience submitted by the Petitioner that in the event of a conflict between what at best can be a tenuous and uncanalised power of one House of the Legislature and the prescribed constitutional rights of the people the latter must have pre-eminence and pride of place. 315. I believe it is indisputable that an unrestricted power of expulsion would inevitably conflicted with the express and the implied constitution rights under Articles 170 and 172 of the Constitution of India. The mere fact that an expelled member may be re-elected by the constituency would not in any way resolve this conflict but indeed may only exacerbate the same. If the Legislature and the constituency differ ir-reconcilably as to the fitness of the person expelled, expulsion and re-election can alternate bitterly through the prescribed five years duration of a State Legislature. This indeed was highlighted by the celebrated case of John Wilkes and John Bradlaugh which have already been refered to. In the bitter struggle, which the aforesaid cases highlight, the electorate of the constituency was left unrepresented in Parliament. This conflict was forcefully brought to the fore by John Wilkes in his appeal to the House of Commons to expunge the resolutions expelling him earlier. This usurpation, if acquiesced under, would be attended with the most alarming consequences. If you can reject those disagreeable to a majority, and expel whom you please, the House of Commons will be self-created and self existing. You may expel till you approve and thus in effect you nominate. The original idea of this House being the representative of the Commons of the realms will be lost.
It is worth recalling that ultimately Wilkes succeeded in the struggle and all the resolutions repeatedly expelling him and thereby denying his electorate their freedom of franchise were expunged. Thus two centuries or more earlier, the House of Commons gave open recognition to the right of franchise and the reason for which earlier expulsion of John Wilkes were expunged deserve pointed notice. The House had resolved that those expulsions were "subversive of the rights of the whole body of the electors of this Kingdom." John Wilkes case is, therefore, a great land-mark in showing that even in England, in the absence of a written Constitution and without a hint of such constitutional guarantees as are incorporated in the Indian Constitution, it was admitted by the House of Commons itself that the freedom of franchise of the people was fundamental. 316. It is equally necessary to recall the position a century later in Charles Bradlaugh''s case who represented the constituency of Northampton in the House of Commons. Stephen, J., delivering the main judgment affrmed the inalienable freedom of franchise of the people even under an unwritten Constitution as follows: * * * No doubt the right of the burgesses of Northampton to be represented in Parliament, and the right of their duly elected representative to sit and vote in parliament and to enjoy the other rights incidental to his position upon the terms provided by law or in the most emphatic sense legal rights, legal rights of the highest importance and in the strictest sense of the words. Some of these rights to be exercised out of parliament, others within the walls of the House of Commons. Those which are to be exercised out of Parliament are under the protection of this Court, which, as has been shown in many cases, will apply proper remedies if they are in any way invaded, and will in so doing be bound, not by resolutions of either House of Parliament, but by its own judgment as to the law of the land, of which the privileges of Parliament form a part.
If that was the accepted state of the law even a century ago in England it would be the more so in view of the written and exhaustive provisions of our Constitution in India. 317. The Petitioner had taken great pains to highlight the glaring and indeed patent differences in the constitutional position under an unwritten Constitution in England as against those in India after the promulgation of our Constitution. It was forcefully submitted that even today, as a matter of legal theory, Sovereignty in England vests in the King-in-Parliament and the people in the strict eye of law are not the legal sovereigns. The claim of a sovereign Legislature on the other hand cannot be raised in India in view of the virtually admitted constitutional position and the authoritative pronouncement of the Supreme Court in the U.P. Legislature''s case in the following terms: In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign. It is no doubt true that the Constitution itself can be amended by the Parliament, but that is possible because Article 368 of the Constitution itself makes a provision in that behalf, and the amendment of the Constitution can be validly made only by following the procedure prescribed by the said article. That shows that even when the Parliament purports to amend the Constitution, it has to comply with the relevant mandate of the Constitution itself. Legislators, Ministers, and Judges all take oath of allegiance to the Constitution, for it is by the relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to the provisions of the Constitution that they owe allegiance. Therefore, there can be no doubt that the sovereignty which can be claim, ed by the Parliament in England, cannot be claimed by any legislature in India in the literal absolute sense.
In India the preamble, authoritative precedents, and informed constitution opinion, leave no manner of doubt that the intent of the Constitution-makers was to place the people of India on the pedestal of being both the legal and political sovereigns in the country. Consequently it follows therefrom that in the peculiar context of an unwritten Constitution in England, it is possible that Parliament, either in its full legislative capacity or in the exercise of its privilege by each House thereof may override and claim pre-eminence over the right of representation of freedom of franchise which are at best legal or municipal rights. In India, on the other hand, these rights are constitutional rights of the people and they cannot and should not be overridden by a single House of the Legislature in the name of privilege. In the presence of a written and detailed Constitution in India, which does not anywhere mention the power of expulsion, a State Legislature, therefore, cannot by the purported exercise of a privilege negate the prescribed and guaranteed constitutional right of representation and freedom of choice guaranteed to the people of a constituency. It is pointed out that the conflict herein is directly between the people who are the legal sovereigns in India and a House of the Legislature which indeed is a creation of the Constitution itself. In such a case, it is the argument on behalf of the Petitioner, the matter must be tilted in favour of the people and it would be alien to read a privilege in our Constitution which conflicts with the basic premises of the rights of representation and the freedom of choice of the electors. If the power of expulsion erodes or cuts down a guaranteed constitutional rights, then by the nature of things it must not be deemed as warranted by the Constitution and not vice versa. It has been rightly pointed out unlike other Constitutions, for example, that of Switzerland, there is no provision in India for the recall of a member, once elected to represent his 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 visualise 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 other constituencies. I am of the view that there is merit in the argument of the Petitioner that there are salient and significant differences between the constitutional position in India and in England and consequently whilst the power of expulsion of the House of Commons may continue to be exercisable there, because of historical reasons, it cannot necessarily be so in India. 318. More akin to the Constitutional position in India is that of the United States of America and its constituent States with their written Constitution?. It has to be borne in mind that the. United States derived its system of parliamentary law primarily from the British example and continues to be steeped deeply in Anglo Saxon Jurisprudence. Nevertheless because of the written federal constitution and that of the States, the position there becomes materially different from that in England. A reference to only a few and celebrated cases in this context, therefore, becomes both apt and necessary. In point of time Hallet Kilbourn v. Johns Thompson United States Supreme Court Reports 26 Law Ed. 377, deserves notice first. Justice Miller speaking for a unanimous Supreme Court observed as follows after reference to the English case law: We are of opinion that the right of the House of Representatives to punish the citizen for a contempt of its authority or breach of its privileges, can derive no support from the precedents and practices of the two Houses of the English Parliament nor the adjudged cases in which the English courts have upheld these practices. Nor can it be said that, taking what has fallen from the English Judges, and especially the later cases on which we have just commented, that much aid is given to the doctrine that this power exists, as one necessary to enable either House of Congress to exercise successfully their function of legislation.
319. In the well known case of Charles W. Bakeretal v. Jeo C. Carretal 369 US 186, the Supreme Court whilst reversing the District Court held that the right of franchise and representation was a justiciable right on the basis of which the electors were entitled to challenge the constitutionality of a State Apportionment Act which may effect gross disproportion of representation to the voting population, which would be an. injury to the legal rights of the people. It is unnecessary to quote therefrom but the case has always been held to be an authority for the proposition that the right of representation is basic to a republican and representative form of Government. 320. Directly relevant on this issue of expulsion or exclusion, however, are two well-known American cases. Julian Bond was a duly elected member in the House of Representatives in Georgia. In a statement made outside the House, he made a scathing attack on the policy of the United State Federal Government in Vietnam and the operation of the Selective Service Laws. The House of Representatives of Georgia on this ground excluded him therefrom and his seat was declared vacant. Julian Bond entered in the election and won with an overwhelming majority. Nevertheless he was again prevented from taking the oath of office and in the regular election, that followed in 1966, he again won from his constituency with the widest margin. He challenged his exclusion and the vacation of his seat in an action before a District Court which, however, held against him on the ground that the action of the Georgia House of Representative was authorised by the State law and his exclusion and disqualification did not violate his constitutional, rights. Chief Justice Warren, speaking for the unanimous Supreme Court of America, reversed that decision in Julian Bond v. James Sloppy Floyd 385 US 116 and held firstly, that the Courts had jurisdiction to review the question of whether the Georgin House of Representatives had violated any of the constitutional rights available to Bond or his electors and secondly, his exclusion from membership and the vacation of his seat was violative of the constitutional rights and consequently struck down the action of the House of Representatives. It was observed: * * *. The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy. The central commitment of the First Amendment, as summarised in the opinion of the Court in New York Times Company v. Sullivan 376 US 254 is that ''debate on public issues should be uninhibited, robust and wide-open''. We think the rationale of the New York Times case disposes of the claim that Bond''s statements fell outside the range of constitutional protection. Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected. The State argues that the New York Times principle should not be extended to statements by a legislator because the policy of encouraging free debate about governmental operations only applies to the citizen-critic of his government. We find no support for this distinction is the New York Times case or in any other decision of this Court. The interest of the public in hearing all sides of a public issue is hardly advanced by extending more protection to citizen-critics than to legislators. Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office also so they may be represented in governmental debates by the person they have elected to represent them.
321. Though it is slightly out of context, I may here dispose of an argument raised on behalf of the Respondents that a member of the Legislature was in certain respects in a more onerous and disadvantageous position than an ordinary citizen of the State. I deem it sufficient to answer this question in the words of Chief Justice Warren in this very case where a similar argument was repelled: * * *. The State does not contend otherwise. But it argues that Bond went beyond expressions of opposition, and counselled violations of the Selective Service laws, and that advocating violation of federal law demonstrates a lack of support for the Constitution. The State declines to argue that Bond''s statements would violate any law if made by a private citizen, but it does argue that even though such a citizen might be protected by his First Amendment rights the State may nonetheless apply a/ stricter standard to its legislators; We do not agree.
322. Adam Clayton Powell had been a member of the United States House of Representatives for many years and was re-elected thereto in 1966. A committee of that House in its report found that Powell met all the necessary requirements of the age, citizenship and residency etc., specified in the Constitution but because of the fact that he had violated the processes of the Courts of the New York and had wrongfully diverted House funds for the use of others and himself and had made false reports on expenditures of foreign currency, he should be censured and deprived of his seniority. However, an amendment was moved and adopted by 307 votes to 116 by which Powell was excluded from the membership of the House and his seat declared vacant. Powell himself and the electors of his constituency challenged this action before a District Court which, however, dismissed the complaint for want of jurisdiction over the subject matter. The United States'' Supreme Court reversing the decision held that the matter was justiciable by the Court and that the House of Representatives had no power to exclude from its membership any person who was duly elected by his constituents and who met the age, citizenship and residency requirements specified in the Constitution. Chief Justice Warren speaking for the majority reviewed virtually all the earlier English precedents of expulsion and after referring to Wilkes'' case concluded as follows in Adam Clayton Powell v. John W. Mc Cormack U.S.S.C. Reports 23 Lawyers'' Edition 491: With the successful resolution of Wilkes long and bitter struggle for the right of the British electorate to be represented by men of their own choice, it is evident that, on the eve of the Constitutional Convention, English precedent stood for the proposition that ''the law of the land had regulated the qualifications of members to serve in Parliament'' and those qualifications were not occasional but fixed. (16 Parl Hist. Eng. 589, 590 (1769). and then * * *. A fundamental principle of our representative democracy is, in Hamilton''s words, "that the people should chose whom they please to govern them". Elliet''s Debates 257. As Madison pointed out at the Convention this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison''s warning, borne out in the Wilkes case and some of Congress own post--Civil War exclusion cases, against ''vesting an improper and dangerous power in the Legislature'', 2 Farrand 249. Moreover, it would effectively nullify the Convention''s decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behaviour and in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.
Mr. Justice Douglas who rendered a separate though concurring opinion, with the learned Chief Justice was even more forthright in this aspect and pointedly asked at page 534-- At the root of all these cases, however, is the basic integrity of the electoral process. Today we proclaim the constitutional principle of ''one man. one vote''. When that principle is followed and the electors choose a person who is repulsive to the Establishment in Congress by what Constitutional authority can that group of electors be disenfranchised.
323. It is evident from the above, that authoritative American precedent (which is obviously more pertinent to the issue) provides adequate warrant for the proposition that in a democratic system with a written Constitution an unguided discretionary power in the Legislature to expel a duly elected member by majority is unwarranted. If that be so, under the American Constitution which is remarkable for its brevity, it appears to me to be more so in the case of our Constitution which is on the other hand remarkable for its exhaustiveness and contains express prescriptions regarding the guaranteed rights of franchise, the freedom of choice of the electors and the duration of representation within the Legislature. I, therefore, think that there is substance in the Petitioner''s submission which was not adequately met on behalf of the Respondents--that a discretionary power of expulsion by majority in a legislature involve a head on collision with the basic and guaranteed constitutional rights of representation, of the freedom of the choice of electors and the rights of the elected themselves. 324. The Petitioner, however, does not rest on his oars merely on the basis of Article 170 and 172 of the Constitution but highlights them as one of the significant pointers towards the fact that the makers of the Constitution did not intend that their prescribed constitutional rights and guarantees should be trodden under foot by the undefined or uncanalised privileges under Article 194(3) some of which by the very nature of things cannot descend to the State Legislatures. Proceeding further, particular, reliance has been then placed on Articles 190 and 191 of the Constitution in this context. To appreciate this contention and for case of reference, it is necessary to set down the relevant parts thereof: 190(1) No person shall be a member of both Houses of the Legislature of a 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. (2) 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 Legislature 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. (3) If a member of a House of the Legislature of a State-- (a) becomes subject to any of the disqualification mentioned in Clause (1) 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 : 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 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.
(a) If for 3 period of sixty days a member of a House of the Legislature of a 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.
191(1) A persons shall be disqualified for being chosen as, and for being a member of the Legislative Assembly or Legislature Council of a State-- (a) 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 Skate by law not to disqualify its holder, (b) if he is of unsound mind and stands so declared by a competent court; (c)if he is an undischarged insolvent, (d)if he is not a citizen of India, or hair voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. (2)* * * * * * * * Basing himself on the detailed provisions, quoted above, the Petitioner contended that the founding fathers Were apparently at pains to provide in detail for all the modes in which a seat in the Legislature once filled was to become vacant and to prescribe the disqualifications for membership. The core of the submission herein is that Articles 190 and 191 are exhaustive of the mode in which a seat in the Legislature is to be vacated and of the disqualifications which would necessitate the same. Consequently there is no warrant to insert or read another mode of the vacation of seats or of adding another disqualification for membership by reading a power of expulsion of one of its duly elected members by the Legislature itself. It is pointed out that expulsion if given effect to would inevitably involve either the vacation of a seat or the prescription of another disqualification for membership because of an alleged contempt of the House. 325. Adverting to the scheme of the Constitution, it is worth of notice that the heading of ''Disqualifications of Members'' comprises within Articles 190 to 193 and is immediately followed by Article 194 under the title of the ''Powers, Privileges and Immunities of State Legislatures arid their Members''. On the basis of the broad scheme, the proximity of the sections to each other and even independently thereof, it has been rightly argued that the enlightened authors of the Constitution indeed were and in any case, have to be presumed to be aware; of the privileges of the House of Commons including its unrestricted power of expulsion which undoubtedly vested in it. For instance, it was well-known that a member of the House of Commons could not resign his seat at will and the vacation could be secured only by the devious method of taking the office of Children Hundreds. Therefore the Constitution makers in Article 190 expressly provided for right of resignation, to override the contrary situation existing the House of Commons. Similarly another concrete example of this is the provision of Clause (3) of Article 196 Which lays down that a bill pending in his legislature of a State, would not lapse by reasons of the prorogation of the House or Houses thereof. This provision was again intended to nullify the known doctrine of lapse under the law and Custom of British Parliament whereby all pending matters before the House stood quashed on. prorogation. Therefore, it must be assumed that authors were equally aware of the power of expulsion in the House of Commons but nevertheless they did not mention it as a mode of the vacation of the seat in the Legislature or of the punishment of contempt as a disqualification because they did not intend the exercise of any such power in view of the detailed provisions of the Constitution providing for the disqualifications for membership and the vacation of seats thereof. 326. An analysis of the twin provisions of Articles 190 and 191 read together as they necessarily must be is inevitably called for. The scheme thereof would show that Clause (1) and (2) of Article 190 are intended to provide against a dual membership in more than one House of the Legislature within or without the State. Clause (1) lays down that no person shall continue to be a member of both Houses of the Legislature and consequently provides for the vacation of one or the other seat in the eventuality of a person being elected to them. This provision has obvious reference to a bicameral Legislature but the State of Haryana having a unicameral Legislature has naturally made, no provision in this regard-Clause (2) provides that no person shall be a member of the State Legislature of two or more seats specified in the First Schedule and to effectuate the purpose the President had promulgated the Prohibition of simultaneous Membership Rules 1950. These further prescribe the time and the manner in which one or the order seats will be rendered vacavt apart from the method of resignation explicit in Clause (2) itself. Clause (3) then provides by a reference to Article 191 for the vacation of the seat if a sitting member becomes subject to the disqualifications prescribed in Sub-clauses (a) to (e) of the latter Article. It is worthy of recollection in this very context that the Representation of People Act enacted in conformity with Sub-clause (e) of Article 191 has further provided and elaborated the disqualifications for membership. Then follows the mode of resignation under Clause (3)(b) of Article 190 which again vacates a seat and it is worth recalling that by the thirty-third amendment of the Constitution in 1974 the original proven existing in regard thereto was made more precise and elaborate. Lastly, Article 190 by virtue of Clause (4) thereof lays down an enabling provision whereby the seat of a member of the Legislature may be declared vacant if the requisite conditions of absence for more than sixty days from all meetings of the House without permission thereof is satisfied. This, it is noticeable, is not a mandatory but a discretionary provision. Even if the requisite conditions are specified, the House may or may not declare the seat of an elected member vacant. Apparently in order to be exhaustive, Article 192 of the Constitution further provides for the determination of disputes arising regarding the incurring of the disqualifications under Article 191. The jurisdiction to decide these disputes has been vested with the Governor formally though he is bound to act in these matters in accordance with the opinion rendered by the Election Commission. 327. From the above, it is plain that the two Articles provide for six basic modes for the vacation of seats. Four of the first modes operate as a matter of law automatically whilst the fifth mode is the voluntary one of the resignation. The sixth mode of vacation of seat is a discretionary or an optional mode in sharp-contrast with the first four mandatory ones. On the basis of these provisions, the Petitioner highlighted the fact that the Constitution makers were at great pains to visualise the eventualities which necessitated the vacation of seats and had chosen to provide for them in great detail. According to him, an addition thereto could be made only either by express amendment in the Constitution or as visualised in; Article 191(e) by express legislation adding to the mandatory disqualifications for membership. This indeed has been done under the Representation of the People Act which again, like the Constitution, is entirely silent on the point of the power of expulsion in the House. Therefore, there seems to be little warrant for adding another mode to the vacation of seat or adding to the list of disqualifications by further reading a discretionary power of expulsion in the State Legislature themselves. 328. On behalf of the Respondent, the plea that the two Articles were exhaustive has been sought to be countered on the rather curious ground that death of sitting member has not been expressly specified as a mode for the vacation of a seat therein. I am not very impressed by this submission. It was rightly highlighted by the Petitioner that though inevitably the death of a member or person would affect innumerable provisions yet no mention thereof has been made either in the whole of the Constitution itself or in the Representation of the People Act. The Petitioner forcefully contended that the matter was so obvious and glaring that it would perhaps have been tautologous to incorporate in Article 190 that death was to operate as a vacation of the seat of a sitting member. Could it ever be reasonably suggested that on the death of a sitting member, that seat would still continue to be filled The matter being plain, the authors of the Constitution perhaps thought reference thereto as unnecessary. Indeed it was contended plausibly that death as a final arbiter provides for itself and does not need to be provided for by statutory reorganisation thereof. 329. As a matter of construction, it was argued, that when the authors of the Constitution themselves provided for the disqualifications for membership and the vacation of seats especially in Articles 190 and 191 there is no warrant for presuming that Article 194(3) was either intended to override the same or to operate independently thereof. In technical terms, the contention is that the special field of vacation of seats and disqualifications having been dealt with in the aforesaid two Articles, when read together, any general provision in regard thereto arising from the undefined and uncodified privileges flowing from Article 194(3) would either be excluded from consideration or in any case the special would override the general provision. The contention also is not without, the merit of plausibility. 330. In contending that Articles 190, 191 and 192 constituted an exhaustive and self-contained code for the vacation of seats and disqualifications for membership (entailing the same result), the Petitioner has then presented the matter from, an altogether different and, if I may say so, refreshing angle. It was submitted that Article 194(3) from which alone the power of expulsion is sought to be derived cannot be read independently of the other constitutional provisions and certainly not to override them. Indeed his case herein is that Article 194(3) must necessarily be subservient to the other constitutional provisions. This result is sought to be achieved by reference to the first part of Clause (3) which provides that the powers, privileges and immunities of the House or Legislature of a State shall be such as may from time to time be defined by the Legislature by law and it is only in the absence of such a definition that the privileges shall be those of the House of Commons. Now it is apparent from the debates in the Constituent Assembly on this point and in particular the statement of Dr. Ambedkar himself (detailed reference thereto is unnecessary) that the adoption of the powers, privileges and immunities of the House of Commons was at that time visualised entirely as a temporary and interim measure. This was necessitated as a mere matter of convenience because the formal enactment, thereof may be a time consuming operation. The primary intent, however was the definition of the privileges, powers and immunities by respective enactments by the State Legislatures concerned. Nevertheless as a matter of fact, no enactment has in fact been made over a period of 27 years. The Petitioner contends forcefully that if a State Legislature were to make a express enactment of its privileges, powers and immunities including therein the powers of expulsion, then it is obvious that such legislation has to stand the test of constitutionality and it would be void in so far as it runs counter to any other provisions of the Constitution. In other words, the same privileges, powers and immunities flowing to the Legislature from the House of Commons, if enacted and codified would necessarily be subservient to the supreme law of the land. If that be the situation as regards the express enactment of those privileges, would it stand to reason that by the mere absence of an enactment or codification of the same, the self-same privileges, powers or immunities, which may be in direct conflict with the constitutional provisions, would nevertheless become available to the State Legislatures by virtue of Article 194(3) should the omission to enact or codify lead to such an anomalous result ? The argument, therefore, is that the power of expulsion, if contrary to or conflicting with other constitutional provisions has to be necessarily excluded therefrom, in the very nature of things. 331. The afore-mentioned contention, apart from its intrinsic merit and plausibility, has the advantage of acceptance and affirmance by high authority. In the U.P. Legislatures case, their Lordships accepted this view with the following observations culled from paragraphs 36 and 37 of the report: 36. * * * *. In dealing with the effect of the provisions contained in Clause (3) of Article 194, wherever it appears that there is 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 harmoniou''s construction. * * * * 37. * *. Prima facie, if the legislature of a State were to make a law in pursuance of the authority conferred on it by Clause (3), it would be law within the meaning of Article 13 and Clause (2) of Article 13 would render it void if it contravenes or abridges the fundamental rights guaranteed by Part III. As we will presently point out, that is the effect of the decision of this Court in
In fairness to the Respondents, it was suggested that the aforesaid view is contrary to that expressed in Sharma''s case. I am unable to agree because their Lordships have arrived at that conclusion after express reference to Sharma''s case and it is settled law that a judgment of the Supreme Court, which has been referred to and its true ratio interpreted by a later Bench has to be viewed in that light. The same view was even more forthrightly enunciated by Chief Justice Bhagwati speaking for the Bench in Chhabildas Mehta''s case in paragraph 11 of the report and in words which have already been quoted in extenso earlier in this judgment: * * * If the privilege is inconsistent with the scheme of the Constitution and its material provisions, it cannot and should not be read in Article 194(3). The presumed intention of the Constitution-makers in such a case would be that such a privilege should not belong to the House of the Legislature. We derive considerable support for this conclusion from the implication raised from the first part of Article 194(3). If the Legislature makes a law defining the privilege of the House under the first part of Article 194(3) and enacts the privilege in Bradlaugh v. Gossett as part of such law, would such an enactment exclude the jurisdiction of the Court under Article 226 ? Would the House be entitled to assert the statutory privilege in the face of Article 226 or in other words, would be statutory. privilege prevail over Article 226 ? The answer is obviously on the negative. Article 226 is paramount and it cannot be set at naught by any law made by the Legislature under the provisions of the Constitution. No provision enacted in a law made by the Legislature can exclude the jurisdiction of the High Court under Article 226. Notwithstanding such provision the jurisdiction of the High Court under Article 226 would remain unimpaired. The enactment of a law, under Article 194(3) cannot be said to be in exercise of constituent power and it must therefore, give way to Article 226. If that be so, it becomes at once material to enquire whether the Constitution-makers could have really intended that the privilege in Bradlaugh v. Gossett should be read in Article 194(3) so as to take away a part of the jurisdiction of the High Court under Article 226 when a law made by the Legislature prescribing the privileges of the House could not do so. The first part of. Article 194(3) thus throws considerable light on the true interpretation of the latter part of the Article and shows that it could never have been the intention of the Constitution-makers that the privilege in Bradlaugh v. Gossett should be read in Article 194(3). This is the same argument which found favour with the majority judges in the Presidential Reference, vide paragraph 37 of the majority opinion. We are, therefore, of the view that the privilege in Bradlaugh v. Gossett though enjoyed by the House of Commons at the commencement of the Constitution does not vest in the House of the Legislature under Article 194(3) and does not give immunity to the House from scrutiny of the Court even in respect of its internal proceedings.
332. I am in respectful agreement with the aforesaid view and indeed this Court, as already noticed by me, is bound by the ratio of the Presidential Reference in the U.P. Legislature''s case. 333. In fairness to the Petitioner, I cannot but at least notice a submission which he repeatedly pressed before us. It was submitted that even if two constructions Were possible here, the Court must lean to the one advocated by him on the basis of what he said was the "consequences theory" of interpretation. It was submitted that in a nascent democracy, like ours, the political realities cannot be totally obliterated from consideration even in a strict legal interpretation. He highlighted the fact that the optimism and the hope which the Supreme Court expressed in para 142 in the Presidential Reference of the U.P. Legislature''s case regarding the approach by the State Legislature to the question of their privileges has not come true and despite the declaration of the law on the subject by their Lordships therein the concerned Legislature neither accepted the same nor conceded the jurisdiction even to the Supreme Court. The Petitioner highlighted that the same attitude seems to have been maintained by the Gujrat Vidhan Sabha in Chhabil Dass Mehta''s case and again by the Madhya Pradesh Legislative Assembly in
334. Similar considerations were then advocated upon the theory of "implied limitations of powers". Primary reliance for these, two canons, of construction was placed on paragraphs 548 and 1273 and paras 219 and 222 to 227 of the report (A.I.R.) in Kesavananda Bharti''s case. 335. I deem it unnecessary to even consider this contention because as shown earlier, I have sought to rest my view on a more solid foundation than the slippery ones of a mere imagined and apprehended abuse of power. Nor am I impressed in this context with the theory of implied limitations of power which was only referred to in passing and was not presented to us with any great elaboration. 336. I am inclined to hold that in view of the basic premise of a Republican Democracy enshrined in the preamble of our Constitution; Articles 170 and 172 prescribing the freedom of franchise and the freedom of choice for a fixed duration for the territorial constituencies of a State Legislature; and Articles 190, 191 and 192 providing in detail for the vacation of seats and disqualifications for membership; when read together are all pointers to the fact that a power of expulsion by majority is inherently alien to the written provisions of our Constitution and is, therefore, unavailable to the State Legislatures by the very nature of things. 337. Having answered the last of the significant issues noticed earlier at Page 449 regarding the very existence of the power of expulsion in the State Legislatures, it becomes both inevitable and necessary to advert to some of the cases relied on by both the parties. In the preceding discussion, I had deliberately eschewed reference to these precedents because of the fact that they would have tended to diffuse the focus of attention from the basic point. Over nearly seven decades of limited and full Parliamentary Democracy within India, only four cases of expulsion were brought to our notice. The first amongst these is Shri H.G. Moudgil M.P.''s case who was expelled from the Lok Sabha soon after the promulgation of the Constitution. On June 8, 1951, a motion for appointment of a committee to investigate to his conduct and activities was adopted and a detailed report thereon was submitted by the Committee of Privileges. Shri Moudgil was allowed the fullest latitude in participating before the committee and also in the debate, within the House. During the course of the debate, Shri Moudgil tendered his resignation from its membership but he was nevertheless expelled on an amended motion dated September 25, 1951. As is plain, since Shri Moudgil virtually accepted the action against him by resigning from the Lok Sabha, the case is of no aid at all ten the legal question before us. 338. On August 13, 1964, Shri J.V. Dhote, Member of the Maharashtra Legislative Assembly, was expelled for gross disorderly conduct within the House. It seems, he did not challenge the action of the House against him and none of the parties made even a reference to this case. 339. Some reference was made to, the expulsion of Shri Subramaniam Swamy by the Rajya Sabha very recently against whom the action was initiated on September 2, 1976. It appears that Shri Swamy did not participate in the proceedings before the Privileges Committee or those Within the House. however, since the references to his case were based primarily on sketchy, newspaper reports and on certain wholly unauthenticated documents, I deem it unnecessary and indeed inexpedient to refer to the same. 340. The only judicial precedent regarding expulsion by a State Legislature is that of
341. At the outset, it deserves notice that on the facts this case was a glaring one of gross disorderly conduct within the four walls of the House and an actual physical assault on the Speaker in the course of the Assembly, proceedings. The case was thus a hard one and one is reminded of the old adage that hard cases make bad law and it appears to me that the apparently reprehensible conduct of the offending members might perhaps have warped a dispassionate assessment of the legal aspect. 342. However, the fundamental fallacy--and I say with great respect from which the judgment seems to suffer, is its basic assumption that the power to punish for contempt and expulsion as one of the consequences thereof is inherent in every legislature. It is prudent to note the enunciation of this view by the Bench in their own words: ________. But it is erroneous to say that the House of Commons has the right to expel its members because it has the privilege to provide for its own proper constitution in the three ways indicated by May. The House of Commons has this power as something essential for enabling it to perform its high functions, as a power which is necessary for its protection, self-security and self-preservation.________________than a fortiori when Article 34(3) say 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, self-security and self-preservation and for the orderly conduct of its business.
343. It becomes necessary to examine at some length this curious theory of inherent power of expulsion in every legislature to enable it to perform its high functions. Indeed, as I would presently be able to show, far from there being any such inherent power the position seems to be otherwise and it is plain that the punitive power of contempt is a very peculiar privilege of the British Parliament vesting in it for historical reasons and acquired by ancient usage and repeated exercise over hundreds of years. 344. Examining first the position in England, with particular reference to the House of Commons, what has to be borne prominently in mind is that the power to punish for contempt herein is not an incident of being a representative legislative body but for the historical reason that the British Parliament from times immemorial has, claimed to be the High Court of Parliament and a court of record. Like all superior courts, therefore, it assumed to itself an inherent power to punish for its contempt. It is significant to remember that in England one House of Parliament, namely the House of Lords is still the final court of appeal for the whole of the land. The claim of the British Parliament, therefore, to be a High Court and a court of record and the claim of the each House is a relic of the peculiar Constitutional developments in England. Can it ever be said that every representative legislature in India is a High Court and a Court of record and therefore, has an inherent power to punish far contempt? I believe, the answer to this must obviously be in the negative. The more appropriate view on the other hand seems to be that the power to punish for the commission of an offence is in essence a judicial power which is normally not to be assumed in a legislative body except for very peculiar and special reasons. This view has recently received affirmance in the judgment of their Lordships in Smt. Indira Nehru Gandhi''s case (Supra). 345. Principle apart, a conclusive rebuttal of the theory that there is an inherent power in every representative legislature to punish for contempt or expel one of its members, is provided by the celebrated decision of the Privy Council in Edward Kielley v. William Carson John Kant and Ors. 1841 Privy Counsel 63. Baron Parke speaking for the Privy-Council noticed at the outset that the main question for decision was whether the House of Assembly of Newfoundland had the power to adjudicate upon a complaint of contempt or breach of privilege. Negativing categorically the existence of any such power in the legislature of Newfoundland, he observed as follows: But the power of punishing any one for past misconduct as a contempt of its authority and adjudicating upon the fact or such contempt, and the measure of punishment as a judicial body, irresponsible to the party accused, whatever the real facts may be, is of a very different character, and by no means essentially necessary for the exercise of its functions by a local Legislature, whether representative or not. All these functions may be well performed without this extraordinary power, and with the aid of the ordinary tribunals to investigate and punish contemptuous insults and interruptions. These powers certainly do not exist in corporate or other bodies, assembled, with authority, to make bye-laws for the government of particular trades, or united numbers of individuals. The functions of a colonial Legislature are of higher character, and it is engaged in more important objects; but still there is no reason why it should possess the power in question. It is said, however, that this power belongs to the House of Commons in England and this, it is contended, affords an authority for holding that it belongs as a legal incident, by the Common Law, to an Assembly with analogous functions. But the reason why the House of Commons had this power is not because it is a representative body with legislative functions, but by virtue of ancient usage and prescription; the lex et consuetudo parliamenti, which forms a part of the Common Law of the land, and according to which the High Court of Parliament, before its division, and the Houses of Lords and Common since, are invested with many peculiar privileges, that of punishing for contempt being one. The aforesaid statement of the law which has been consistently accepted as correct, completely negates the theory that the power of punishing for contempt and consequently of expulsion was inherent in the House of Commons because of it being a representative legislative body or that it is a necessary legal incident for every legislature. 346. I have earlier taken great pains to show that the power of expulsion is a part and parcel of another very peculiar privilege of the House of Commons to provide for and regulate its Constitution. This power has been exercised by the House in cases which have no relevance to either the contempt of the House or the breach of any one of its privileges. The Supreme Court in the Uttar Pradesh Legislature''s case (paragraph 45) is categorical that this peculiar privilege of providing for and regulating its own Constitution by the very nature of things cannot descend to the State Legislatures and for that matter it is certainly not a legal incident of each and every legislature. To my knowledge, apart from the Madhya Pradesh case, no Constitutional writ or court of record has adumbrated the view that there is an inherent privilege or power in every legislature to expel one of its duly elected members. Even suggesting that the House of Commons has such an inherent privilege (independently of the basic one of providing and regulating its own Constitution), would be creating a peculiar new privilege and launching an unheard theory of inherent privileges in the House of Commons which stands completely negated by the highest authority. It has been accepted both by the House of Commons itself and the Courts in England that parliament cannot create any new privileges. Only those, which are hoary with ancient usage and by prescription have acquired the force of law and custom of parliament alone, are to be recognised. The theory of any inherent privileges vesting in the House of Commons has thus not a vestige of a basis even in England and if that be so it would be the more so as regards the State Legislatures in India which are the creatures of the Constitution which has provided for their composition and powers with meticulous detail. 347. Adverting briefly to the position as existing in America which appears to be more akin to ours because of the existence of a written Constitution and a federal form of government it is significant to remember that neither the Congress of the United States itself nor the Legislatures of nearly 50 States thereof exercise any direct power to punish citizens for the alleged, contempt of the House. At best, they can initiate proceedings for its punishment and the exercise of this judicial and punitive power is relegated to the courts of law. It is thus significant to notice that for well over 200 years in American history there has never been any theory of an inherent power to punish citizens for contempt in the Legislature or a discretionary power to expel its own elected members. Yet as their Lordships of the Supreme Court noticed in the Uttar Pradesh Legislature''s case (paragraph 135 of the report), no body has even suggested that American Congress has not been functioning effectively because it has not been armed, with the powers peculiar to the House of Commons. The American example, therefore, highlights the fact that in that Republican Democracy no inherent powers of punishing for contempt or of expulsion have ever been claimed by its representative legislatures. 348. Coming nearer home, it equally deserves recollection that in India till 1950 the country had worked a limited or absolute form of Parliamentary Democracy, and representative legislatures were functioning both at the level of the Provinces and at the Centre. It is the common case that during this period neither the Provincial Legislatures nor the Central Legislature had the least power to punish for contempt far from there being any claim or exercise of the power to expel any on of its elected members. This position has also been authoritatively noticed in paragraph 121 of the Uttar Pradesh Legislature''s case. Herein also it can hardly be suggested that for nearly half a century when the Provincial and the Central Legislatures functioned in India they were in any way hamstrung by the absence of any purported inherent power to punish for contempt or to expel one of it own members. 349. It then deserves pointed notice that the privilege of punishing for contempt (quite apart from any power of expulsion) vests indeed a very powerful on in the hands of the legislative which is more than amply sufficient to enable it persons to its functions unhindered. It empowers the House to call persons to its bar and admonish or reprimand them. Earlier, the House of Commons used to impose fines also under this privilege, though in England this power seems now to be in total desuetude. Apart from this the House by its own choice has, in such a situation, the power to commit the alleged contemner to prison forthwith. Can it ever be said that the last power, which has been rightly described by May and other Constitutional authors as the key stone of the parliamentary privilege of the House of Commons, would be insufficient to maintain its dignity ? For from being so, authoritative constitutional writers have even criticized this unrestricted power of commitment without control as an excessive power which makes a serious inroad into the citizens rights of personal liberty and into the general law of the land. Professor Maitland indeed went to the length of saying that the House of Commons indeed has a very dangerous weapon in its hands. This apart, within the four walls of the House there is the admitted power of the Speaker to exclude any member thereof for any disorderly conduct or obstruction to the proceedings. This is enforceable by force with the aid of a sergeant-at-arms. Added to this is the power of the House to suspend a member altogether and debar him from attendance for a whole session. This power of suspension can again be repeated in the ensuing session as well if the House deems it necessary to protect its proceedings. Again the power of commitment to prison can equally be used against a member of the House as also against citizens. With such vast ranging powers in the hands of the legislature accruing to it by the privilege of punishing for its contempt, does it stand to reason to say that the power of expulsion is either inherent in a legislature or is a pre-condition for its very existence ? As I have shown above, Democratic Legislatures have functioned meritoriously and with distinction for centuries both in other lands as also in our own without adumbrating any theory of inherent powers vesting in a legislature. 350. I refrain from elaborating this issue any further because when faced with the obvious difficulties of sustaining any such doctrine, the learned Advocate General of the State of Haryana did not seriously press or canvass this inherent power theory which seems to have been accepted by the Madhya Pradesh Bench. I, therefore, conclude that neither principle nor authority warrants the basic assumption of an inherent privilege of expulsion vesting in a legislature which seems to have been unwittingly accepted by the Division Bench and it is this error of approach which has further warped its appraisal of the basic issue as well. 351. The second infirmity, which has then been highlighted in the reasoning of the Bench, appears in paragraph 17 of the report to the effect that the language of Clause 3 in plain, unambiguous and apposite for vesting the legislature with all the powers, privileges and immunities enjoyed by the House of Commons and that this language is explicit in what it directs. On this basis, it seems to have been assumed that the totality of the powers, privileges and immunities of the House of Commons must necessarily descend to Indian Legislatures. The Petitioner rightly points out that this is a view and an approach which is directly in conflict with and contrary to what their Lordships have said in paragraph 45 of the Uttar Pradesh Legislature''s case. Therein, in no uncertain terms, the Supreme Court has opined that certain privileges, powers and immunities of the House of Commons, by the very nature of things and indeed obviously, can never be vested in the State Legislatures. There appears to be merit in the criticism by the Petitioner that the observations of the Division Bench and its method of construction of Article 194(3) are basically in conflict with what has been authoritatively laid down in the Uttar Pradesh Legislature''s case. 352. It has then to be noticed that the attention of the learned Judges of the Division Bench does not seem, to have been adequately drawn to the great weight of authoritative Constitutional opinion to which reference has been made in the earlier part of this judgment that the power of expulsion is indeed a facet of and is a part and parcel of the basic privilege of the House of Commons to provide for and regulate its own Constitution. No reference appears in the judgment to the appropriate and relevant parts of the works of Anson, Maitland, Keir and Lawson, Wade and Philips, Ridges and the recent opinion of Lord Kilmuir. It is rightly pointed out that without basis it has been rather summarily observed that expulsion is not a part of the basic privilege but is the result of an altogether unknown inherent privilege of the House of Commons to enable it to perform its high functions. 353. The Petitioner had also forcefully criticised the piecemeal reference to Halsbury in the judgment and indeed it was his case that it has been misconstrued and not viewed in a correct perspective. As noticed in the earlier parts of this judgment, paragraphs 905 and 906 in Halsbury are integral parts of each other which have to be read together and there seems to be substance in the criticism that only a part of paragraph 905 has been quoted out of context and the larger perspective emerging from the statement of law by Halsbury has not been taken. 354. Though the Division Bench has not in terms expressed the view that the privilege of providing for and regulating its own Constitution can be expressed in three ways only, yet it appears that its view has been influenced by a cursory reference to May''s statement of the law. As I have already shown earlier that this enumeration is merely illustrative both on the basis of May''s own exposition and on the basis of the other Constitutional writers, it appears to me that this aspect of the judgment also suffers from infirmity. 355. Lastly, the Bench seems to have summarily rejected an argument rested on Articles 190 and 191. Herein, also the effect of all the relevant Constitutional provisions when read together does not appear to have been appreciated. I believe, in the earlier part of this very judgment, I have been able to show that the pre-amble of the Constitution, when read with Articles 170, 172, 191, 192 and 193 together would all tend to negate a discretionary power of expulsion by majority of a duly elected member of the State Legislature. 356. What, however, deserves pointed notice is the fact that the Madhya Pradesh judgment in essence does not in anyway advance the case of the Respondents. The core of the latters stand is that the power of expulsion is one of the sentences or measure of punishment for the offence of the contempt of the House, its members or the Speaker thereof. The Division Bench has nowhere subscribed to any such theory and indeed runs counter to it by expressly holding that the power of expulsion in a Legislature is an inherent one vested therein, for the very discharge of its functions. This, I have already shown, is untenable and indeed the learned Advocate General of Haryana did not subscribe to this theory either. 357. For all the reasons aforesaid, I am inclined to the view that the Division Bench judgment in
358. At the outset I had noticed that the pre-eminent question before this Bench is the very existence of the power of the State Legislature to expel by majority one of its duly elected members who, according to the tenets of the Constitution, remains fully qualified for its membership. The answer to this question in the light of the findings arrived at by me on issues (a) to (f) (at page 238 of this judgment) builds up into a perfect syllogism. The power of the House of Commons to expel one of its members is an integral and indivisible part of its basic and peculiar privilege to provide for and regulate its own constitution. Admittedly this privilege does not and indeed cannot descend to the State Legislatures in India by virtue of Article 194(3) of our Constitution. Even otherwise such a power of expulsion by majority is inherently alien to the other tenets of our written and exhaustive Constitution. Therefore it has to be held inevitably that Respondent No. 3, the Vidhan Sabha of Haryana, is not clothed with any power of expelling its duly elected members by majority as a measure of punishment for its contempt. The imposable punishments for contempt of the House are known and well-settled as being admonition, reprimand, suspension from the service of the House for the Sessions fine and lastly the keystone in this context being the power to commit the contemner to prison. 359. On the aforesaid conclusion it is plain that the Petitioner is entitled to succeed Ex Debito Justitiae. 360. Though the writ petition must be allowed on the above-mentioned ground alone, yet the Petitioner did not rest content with that only. Indeed a forceful and multi-pronged attack was launched by him on the legality and the validity of the exercise of the power of expulsion even if it was assumed to exist entirely as a matter of argument. I deem it unnecessary to pronounce on all the wide ranging arguments which the Petitioner directed against the exercise of the power (if any) because on the aforesaid folding arrived at by me it is not strictly necessary to do so. However, there remains one more issue deserving adjudication which was very forcefully pressed before us. This is so because it is well-settled that even where a power exists its illegal and improper exercise is nevertheless challengeable. 361. Herein the major attack on behalf of the Petitioner on the legality and validity of the resolution of the Vidhan Sabha is based on the well-known doctrine of lapse on the prorogation of a Legislature. The facts relevant therefore are not in dispute. The original privilege motion against the Petitioner was moved on the 12th of November, 1973 and was referred to the Committee of Privileges for its examination. It is not in doubt that thereafter the Vidhan Sabha was formally prorogued by the Governor of Haryana on five distinct occasions. The first notification in this context was in the following terms: No. HVS-LA-106/73/83.--The following order by the Governor of Haryana, dated the 4th December, 1973, is published for general information: In exercise of the powers conferred upon me by Article 174 (2) (a) of the Constitution of India, I hereby prorogue the Haryana Vidhan Sabha. 4th December, 1973. Sd/- B.N. Chakravarty,
Governor, Haryana. Thereafter four identical notifications were issued on the following dates: 1. 11th February, 1974 ; 2. 31st July, 1974 ; 3. 20th August, 1974; and 4. 10th December, 1974. The Petitioner contends that by virtue of the aforesaid prorogation, all matters before the Vidhan Sabha except bills which are expressly protected by Article 196(3) of the Constitution lapsed entirely and indeed all those proceedings stood quashed, and further the case of the Petitioner is that this lapsing and quashing of pending business pertains not only to matters before the House but equally and identically to matters pending before the Committees of the House. Consequently the forthright argument is that on the crucial date of 8th January, 1975 there was no motion before the House at all upon the basis of which the impugned resolution of expulsion could be passed. The Petitioner contends that the purported exercise of the power of expulsion was totally illegal and bereft of all jurisdiction. 362. The doctrine of lapse of all pending proceedings before a Legislature on, its due prorogation or dissolution is indeed too well-known to our jurisprudence to necessitate any great elaboration. I say so because so far as this Court is concerned, it is bound by the decisions of their Lordships of the Supreme Court who have unreservedly recognised the doctrine of lapse and consequently a mere statement thereof would suffice. 363. In the above context, one can obviously do no better than quote directly from the statement of the law in the well-known work of May on Parliamentary practice which book has the merit of approval about its authoritativeness by their Lordships of the Supreme Court in not one but many precedents. May states the law on the subject in the following terms at page 255: Effect of prorogation and adjournment respectively: The effect of a prorogation, is at once to suspend all business until parliament shall be summoned again. Not only are the sittings of parliament at an end, but all proceedings pending at the time are quashed, except impeachments by the Commons and appeals before the House of Lords. Every bill must therefore be renewed after d prorogation, as if it were introduced for the first time. An adjournment has no such effect on parliamentary proceedings. Upon reassembling, each House proceeds to transact the business previously appointed, and all proceedings are resumed at the stage at which they were left before the adjournment. So well established is the constitutional position regarding the effect of prorogation on parliamentary proceedings that may further states as follows at page 549: Proposals have been made for a provision, either by statute or by standing orders, for the suspension of bills from one session to another, or for resuming proceedings upon such bills, notwithstanding a prorogation. These schemes have been discussed in Parliament and carefully considered by Committees; but various considerations have restrained the legislature from disturbing the constitutional law by which parliamentary proceedings are discontinued by a prorogation.
From the aforesaid statement of law, it is plain that the doctrine of lapse is an issue of constitutional law and of parlimentary privilege and is no matter of mere procedure. That the founding fathers of our Constitution were more than aware of this situation and accorded express recognition thereto is evident from the provisions of the Constitution itself. It was because of the clear constitutional distinction between a mere adjournment of the House of Legislature and its formal prorogation and dissolution; that express terminology to this effect was repeatedly used by, the framers of the Constitution. For instance, the term ''adjourned'' has been used in Article 108(2). However, as we are dealing with the case of a State Legislature, the relevant provisions which first deserve notice in extenso are as in Article 174: 174(1) The Governor shall from time to time summon the House or each House of the Legislature of the State 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. (2) The Governor may from time to time: (a) prorogue the House or either House ; (b) dissolve the Legislative Assembly. Herein, it deserves to be borne in mind that the words ''prorogue'' and ''dissolve'' were used in identical terms as regards our Parliament, in Article 85 of the Constitution. They are not words of common parlance but virtually terms of legal art as regards parliamentary and legislative institutions. They have, therefore, been advisedly used in Articles 85 and 174 in the Constitution with all their necessary implications. This becomes even more manifest when reference is made to the relevant clauses of Article 196. These are in the following terms: 196. (1) * * * * (2) * * * * (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 a 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 a dissolution of the Assembly. In passing, it may be mentioned that identical provisions as regards Parliament have been made in Clauses (3), (4) and (5) of Article 107 and reference to the distinct terms of adjournment, prorogation and dissolution again arises in the following Article 108. A reading of these provisions together and for our purposes in particular those of Article 174 and 196 leaves hardly any doubt as to the effects of prorogation on pending business. A solitary exception to the rule which the Constitution has itself chosen to carve out is in favour of Bills only, to protect them from the doctrine of lapse. Therefore, hardly any doubt remains that by virtue of the Constitution itself apart from Bills, other proceedings before the Legislature must inevitably lapse unless they are protected expressly by some other constitutional provision or one validly enacted under the said Article 208(1). 364. The true rationale behind the constitutional and parliamentary doctrine of lapse is perhaps self-evident. Parliament and the Legislatures of the country (over burdened as they are) intended to deal with matters of current and argent interest to the polity and are not to be cluttered and clogged with arrears of unfinished business which may keep on accumulating to divert their attention from urgent public business. It is perhaps for this reason that the salutary rule is evolved and accepted that on the termination of a session by prorogation of the Legislature, all matters pending before it must be deemed to have entirely come to an end or to use legal terminology, must stand quashed. It is not that prorogation would inexorably kill the proceedings for all times which were pending before the House but all it necessitates is that in the next session if the Legislature desires to take up the matter afresh, it would have to follow the identical procedure for reintroducing it as if it were a fresh measure, and the members would have the opportunity to consider and decide on the desirability of doing so. 365. Having noticed the mandate of the Constitution itself, which appears to be in no uncertain terms, it now suffices to advert to the two judgments of their Lordships of the Supreme Court. In M.S.M. Sharma v. Dr. Shree Krishna Sinha and Ors. 14 East, 1448 (supra) their Lordships in the penultimate paragraph of the judgment noticed the contention of the Petitioner that the Assembly had no power to proceed against the Petitioner for breach of privilege in May, 1957 when it was established that the Assembly had been prorogued several times between May 31, 1957 and November 23, 1959. After drawing the patent distinction between dissolution and prorogation and quoting the portion from May''s Parliamentary Practice (already quoted above), their Lordships observed as under: The observations quoted above do not support the extreme contention raised on behalf of the Petitioner that the proceedings in contempt are dead for all times. The effect of the prorogation only is to interrupt the proceedings which are revived on a fresh motion to carry on or renew the proceedings. In this case, it is not necessary to pronounce upon the question whether dissolution of the House necessarily has the effect of completely wiping out the contempt of the proceedings relating thereto.
It is plain from the facts of the case and the observations made that the real contention raised before their Lordships was that by prorogation, the proceedings of contempt were dead for all times. Their Lordships rightly pointed out that they do not die irrevocably but in the clearest terms accepted the position that these had to be revived on a fresh motion being moved in the House for the purpose of reviving the proceedings. These observations indeed lend support to the Petitioner''s case that the Supreme Court has accepted the doctrine of lapse and ruled that after prorogation, contempt proceedings lapse and can be revived only by a regular procedure of moving a fresh motion in accordance with the rules and procedure. Therefore, one of the questions in the present case (noticed in detail hereafter) would necessarily be whether in fact the proceedings against the Petitioner have been duly revived by a fresh motion in each of the ensuing Sessions after 4th of December, 1973. 366. In
On the other hand, if the Petitioner''s contention is right Clauses (3) and (4) of Article 196 having provided for cases where business did not lapse it was hardly necessary to have t made any provisions by Clause (5) at all. In the absence of Clause (5) it would have followed that oil pending business, on the antilogy of the English convention, would lapse on the dissolution of the Legislative Assembly. It is true that the question raised before us by the present petition under Article 196 is not free from difficulty but, on the whole, we are inclined to take the view that the effect of Clause (5) 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 we read Clause (5) as dealing exhaustively with Bills which would lapse on the dissolution of the Assembly. If that be the true position then the argument that the Bill which was pending assent of the President lapsed on the Legislative Assembly cannot be upheld.
It seems to be plain from the above-quoted observations that their Lordships of the Supreme Court have unreservedly recognised the constitutional doctrine of lapse in parliamentary proceedings and it was only on the particular construction they placed on Clause (5) of Article 196 and because of the fact that the impugned Act had earlier been passed by the Kerala Legislature and was not pending before it that they held with some hesitation that the provision was saved from the operation of the doctrine. It has to be particularly noticed that in the aforesaid case, their Lordships were primarily concerned with the peculiar provisions of Clause (5) in the case of a bicameral Legislature in the context of its dissolution. In the present case no such complexity arises. 367. In view of the constitutional provisions noticed and the two binding precedents of the Supreme Court it is clear that the ordinary privilege motion before the Respondent-Vidhan Sabha inevitably lapsed long before the crucial date of the 8th of January, 1975. Indeed it is difficult to assume that it had survived lapsing not after one but as many as five prorogations of the House. The sole question, therefore, now is whether the privilege motion was excluded from the doctrine of lapse by virtue of any constitutional or legal provision. 368. In view of the decision in M.S.M. Sharma v. Dr. Shree Krishna Siriha and Ors. 14 East. 1448 (supra) referred to above, it is plain that their Lordships have opined that one way to resuscitate a privilege motion for contempt which has lapsed by virtue of prorogation is by reintroducing it as a fresh motion under the rules in the following session. That alone would reanimate or revive the proceedings which undoubtedly lapsed by prorogation. Was this so done in the present case ? It is the admitted position that the privilege motion was never reintroduced in the House or considered afresh in accordance with the detailed rules of procedure and conduct of business of the Haryana Assembly. Therefore, this aspect of the matter need not detain one very long because it is conceded on behalf of the Respondents that far from having been validly introduced afresh even no attempt to do so was made by its sponsors in the House after the first or the subsequent prorogations. 369. However, I might as well dispose of a rather half-hearted contention on behalf of the Respondents in this context. It was suggested that the time for the submission of the report by the Privileges Committee was extended by the House and this in itself would save the privilege motion from lapsing after prorogation. I am wholly unable to agree. If the doctrine of prorogation operates, its effect is to quash the proceedings pending before the House. Can one visualize an extension of time in a matter, which is quashed or has lapsed entirely ? As their Lordships of the Supreme Court have said, the only way to revive the lapsed proceeding is to introduce it afresh in the next session as a new measure. The procedure for introducing a privilege motion is well provided for in the rules of procedure and conduct of business in the Haryana Legislative Assembly framed under Article 208(1) of the Constitution of India. This requires a fresh consideration by the House of the merits of the motion, a debate thereon, and its admission. I am unable to see how a routine extension of time purporting to be under Rule 272 of the aforementioned rules can possibly be equated with the introduction of a fresh motion of privilege. Admittedly, in these extensions of time, the merits of the motion afresh were not even remotely considered far from being debated or voted upon, nor even the words ''revived'' or ''introduced afresh'' were remotely used. In my view, it would be a total misnomer to suggest that this would tantamount to the introduction or admission of an altogether fresh motion of privilege against the Petitioner. 370. Now the core of the Respondents case herein to avoid the well-settled doctrine of lapse is that after the 12th of November, 1973 the privilege motion stood admitted and was referred to the Privileges Committee for report and therefore, it was not before the House. What appears to me a rather specious argument is that it was sought to be contended that the proceedings before the House only. lapsed but identical proceedings which have been referred by the House Jo its own Committees do not. On principle there is nothing whatsoever to commend any such proposition. If the doctrine of lapse by prorogation operates on all proceedings before the House then it must necessarily operate also on the proceedings before the committees of the House which are nothing else but its limbs or delegates. If the proceedings other than Bills cannot survive prorogation before the parent body, there is no reason for assuming that they will so survive by virtue of being before its delegate committees). Herein the stand of the Secretary of Vidhan Sabha itself goes sharply in aid of, the Petitioner. On page 9 of his written statement, he expressly pleaded as follows: The Petitioner is not entitled to question the composition of the Committee on any ground whatsoever. It may be stated that the Committee of Privileges is a House in miniature although it is a recommendatory body.
It is plain therefrom that the stand of the Respondents itself is that the privileges committee is again nothing but the House in miniature. Therefore what lapses before the House must equally lapse when it is before the House in miniature. 371. Principle and logic apart, the matter herein seems to be so well covered authoritatively that it deserves no further elaboration. Halsbury (third edition at page 372) on this point is categoric in the following terms: 651. Effect of prorogation upon proceedings in Parliament-- It is a recognised rule of parliamentary procedure that, in addition to bringing a session of Parliament to a conclusion, a prorogation puts an end to all business which is under the consideration of either House at the time of such prorogation. In both Houses, therefore, any proceedings either in the House or in any committee of the House lapse with the session. Bills the stages of which have not been completed when Parliament is prorogued may be introduced as new bills in a subsequent session.
372. It is, therefore, plain that the Respondents'' stand that proceedings pending before the Privileges Committee of the House would not lapse by prorogation, is wholly untenable. 373. The Respondents then tried to clutch at a straw by contending that the proceedings pending before committees of the Lok Sabha and earlier those of the Central Legislature did not lapse by the prorogation of the House and, therefore, by way of analogy the position would be identical in the Haryana Vidhan Sabha also. This stand on behalf of the Respondents however, boomerangs rather sharply on its propounders. 374. As regards the practice of the Pre-constitution Central Legislature, reliance was sought to be placed on behalf of the. Respondents on the following observation in "Practices and Procedure of Parliament" by Kaul and Shardher, page 612: Even in the old Central Legislature, although there was no specific provision to that effect in the Standing Orders, in actual practice every pending business before the committees survived prorogation of the Assembly.
I am unable to see how the afore-mentioned statement is of any aid to the case of the Respondents. As already shown, the doctrine of prorogation has been accepted and recognised by the Promulgation of our Constitution in 1950. Therefore, the pre-constitution position of the mere practice of the Central Legislature is of the least relevance in this context. Indeed, if the pre-constitution position is to be taken into consideration, then it is undeniable that the said Legislature had not the least power to punish either its members or the citizens, for its contempt. No question of any privilege motion of contempt could thus arise before it. Therefore, if the pre-constitution legal position is to be relied upon by the Respondents, then admittedly the Legislature had no power at all to institute contempt proceedings. 375. As regards the position in the Lok Sabha it has to be noticed that despite the existence of specific rules of procedure (duly framed under Article 118 of the Constitution) to the effect that certain proceedings would not lapse, doubts were nevertheless raised about their validity in face of the constitutionally accepted doctrine of lapse in Article 107 as regards Parliament. The matter had to be referred for opinion to the Attorney-General, who then opined as follows: Article 107(3) enacts one exception to the rule that a prorogation has the effect of quashing all pending business. That Article, however, does not prevent Parliament from creating further and other exceptions to that rule by the exercise of its power under Article 118(1) and 118(2) of the Constitution. There is no provision in the Constitution which fetters or restricts that power so as to prevent Parliament from creating these further and other exceptions. Rules 335 and 336 of the Rules are therefore, competent and valid.
It is manifest from the above that the authoritative opinion stated in no uncertain terms that exceptions could be carved out to the doctrine of lapse by prorogation only by specific rules framed under the Constitution''s mandate. In the absence of any such rule or exception carved out thereby, the doctrine of lapse by prorogation, therefore, would have full play and operate on all proceedings other than Bills which were specially protected as regards Parliament by Article 107(3) and as regards the State Legislatures by Article 196(3). Now, the relevant rules of procedure and conduct of business in the Lok Sabha are Rules 336 and 284 which deserve notice in extenso. Rule 336--A motion, resolution or an amendment, which has been moved and is pending in the House, shall not lapse by-reason only of the prorogation of the House. Rule 284--Any business pending before a Committee shall not lapse by reason only of the prorogation of the House and the Committee shall continue to function notwithstanding such prorogation. 376. It is manifest from the plain reading of the aforesaid two rules that motions, resolutions and amendments before the Lok Sabha and the business pending before its Committees does not lapse by virtue of these rules only. In their absence, the position would be wholly otherwise. 377. It deserves significant notice that the admitted position here is that in the Rules and Procedure of Business of the Haryana Legislative Assembly framed under Article 208(1) of the Constitution of India, there is nothing which is even remotely analogous to Rules 284 and 336 quoted above. It must, therefore, necessarily follow that proceedings other than Bills before the Vidhan Sabha or any one of its Committees must lapse on the prorogation of the House. 378. Lastly and if I may say so, rather curiously, a, vain attempt was made on behalf of the Respondents to take shelter under Article 212(1) of the Constitution. It was sought to be suggested that the operation of the Constitutional doctrine of lapse was a mere matter of procedure and, therefore, any alleged irregularity in regard thereto was not challengeable in a Court of law. I am unable to see how a Constitutional doctrine of parliamentary-privilege can be termed so inconsequential as to be a matter of mere procedure. It is unnecessary to elaborate because in my view the lie direct to any such contention is rendered by the ratio in M.S.M. Sharma''s case (supra) and Purushothaman Nambudiri case (supra). In the first case, their Lordships in the preceding paragraph 10 considered and held what was barred by Article 212 of the Constitution because of its being procedural within the House. It was, thereafter that in para 12 they in terms considered the argument as to the effect of prorogation on the pending motion of contempt and adjudicated upon and repelled the same. Again, if the doctrine and effect of lapse on pending parliamentary proceedings were to be a procedural matter, one fails to see why their Lordships of the Supreme Court (Gajendragadkar, Sarkar, Wanchoo and Dass Gupta Judges in the majority judgment) in Purushothaman Nambudiri''s case (supra) devoted as many as 15 paragraphs of the judgment to its nature, scope and effect and it was only with some hesitation that they held that the Kerala Agrarian Relations Act had for peculiar reasons escaped lapsing primarily because it had been duly passed by the Legislature and at the relevant time, was pending for Presidential assent. Iyyanagar, J., who differed with the majority on the effect of Articles 14, 19 and 31 of the Constitution regarding the validity of the said Act was, however, at one with the majority in so far as the nature and the effect of doctrine of lapse was concerned. In view of the aforesaid position of the case law, I deem it unnecessary to consider in detail the single Bench decision in Homi D. Mistry v. Shree Naisul Hassan and Ors. I.L.R. (1957) Bom 218 (27 supra) on which some reliance was placed on behalf of the Respondents. Obviously in so far as that view runs counter to the aforementioned Supreme Court decision, it can no longer be held as good law. 379. In the light of foregoing discussion it has to be held that privilege motion for contempt against the Petitioner stood quashed by virtue of prorogation of the Haryana Vidhan Sabha. Consequently, the very basis and the foundation for the resolution of expulsion was entirely lacking. In the eye of law, on the 8th of January, 1975, there was no Privilege motion of contempt nor any report of any Privilege Committee before it for consideration which could be accepted and adopted. Therefore, even on the assumption that there exists a power of expulsion; in the Vidhan Sabha (entirely for the sake of argument), the exercise of the said power was illegal because of the doctrine of lapse and was bereft of all jurisdiction. The petition is, therefore, entitled to succeed on this additional ground as well. 380. In view of the above, I deem it unnecessary (indeed it would be wasteful) to pronounce upon other contentions raised on behalf of the Petitioner. 381. In the ultimate analysis, therefore, owing to the total absence of any power and privilege in the Vidhan Sabha to expel one of its duly elected and qualified members, the writ Petitioner is entitled to succeed Ex Debito Justitiae. In the alternative, even if it be assumed entirely for argument''s sake that the Vidhan Sabha has the power of expulsion, the petition must succeed on the ground that the exercise of this powers was illegal and bereft of jurisdiction in view of the doctrine of lapse by virtue of prorogation. I would accordingly allow this writ-petition and grant the reliefs prayed for. The resolution of 8th January, 1975 expelling the Petitioner is held to be unconstitutional, illegal and inoperative. As a necessary consequence, the Election Commission of India is directed not to proceed to fill the vacancy supposedly resulting from the action aforesaid. In view of the intricate issues of Constitutional law, which were ably presented before us on either side, I would leave the parties to bear their own costs. 282. Before parting with this judgment, I would be perhaps failing in my duty if I do not make a passing reference to the long drawn-out arguments before us regarding the very jurisdiction of this Court to examine the legality and validity of the resolution of expulsion. At one stage, it was sought to be argued on behalf of the Respondents that the State Legislatures were themselves the sole Judges of their privileges, powers and immunities and an action taken by them within the four walls of the House was barred from examination by the Court. I may, however, notice that in the, second hearing before us, Mr. C.D. Dewan, the learned Advocate-General, Haryana did not attempt to stick to this extreme and obviously untenable position. Nevertheless, some contentions were raised that the legality of action taken within the chamber of the Legislature was not examinable by the Court. 383. On the other hand, the Petitioner had advocated forthrightly that the very existence, the extent, and the effect and application of all parliamentary privileges whether exercised within or without the Assembly Chamber are squarely within the ken of the High Court under Article 226 of the Constitution. In fact, the Petitioner after the conclusion of the main arguments in the case, had expressly prayed to address further arguments on the effect of the Constitution (42 Amendment) Act 1976 upon its enforcement as on 1st of February, 1977. We had allowed this prayer and gave the parties a fresh hearing on 25th of January, 1977, regarding the scope and effect of the recent amendments introduced in Article 226 of the Constitution. 384. To my mind it appears that the controversy herein is more imaginary than real. Article 212(1) of the Constitution itself gives the clearest indication of the only limitation laid-down by it regarding the validity or otherwise of proceedings within the House. It reads as under: Article 212(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.
385. It is plain from the above that the Constitution makers; have themselves chosen to only protect an irregularity of procedure within the Legislature from the province of examination by Superior Courts. By necessary implication, therefore, any patent illegality even of procedure would become examinable by the Courts. Similarly, and infact more so, any action (other than irregularity of procedure) which contravenes any other law or a provision of the Constitution is obviously within the exclusive jurisdiction of the Superior Courts. 386. This appears to be plain in principle but if an authority were needed it is equally available in the following observation of their Lordships of the Supreme Court in the
Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this Country and so, we feel no difficulty in holding that the decision about the construction of Article 194(31) must ultimately rest exclusively with the Judicature of this Country. That is why we must overrule Mr. Seervai''s argument that the question of determining the nature, scope and effect of the powers of the House cannot be said to lie exclusively within the jurisdiction of this Court.
387. It only deserves highlighting that the aforesaid case contains one of the most exhaustive and elaborate observations of the nature and scope of the Court''s powers in relation to the State Legislature. That statement of law is indeed difficult to be improved upon. 388. However, what is a mere irregularity of procedure as-against an illegality thereof? That is a question which inevitably has been and must necessarily remain for the Courts to decide on the particular, facts and circumstances of each case. It is a matter which cannot and should, not be put into a strait-jacket. With great respect if I may say so any attempt at codification by precedent of a subject which is so inherently flexible, would in my view, be neither possible nor called for. 389. In this context of the jurisdiction of this Court, I would like to close this judgment in language which the passage of a century has not dimmed quoted with approval by the American Supreme Court in Kilbourn v. Thompson (supra): The House of Representatives (says the court) is not the final judge of its own power and privileges in cases in which the rights and liberties of the subject are concerned, but the legality of its action may be examined and determined by this Court. That House is not the Legislature, but only a part of it, and is, therefore, subject in its action to the law in common with all other bodies, officers and tribunals within the Commonwealth. Especially is it competent and proper for this Court to consider whether its proceedings are in conformity with the Constitution and laws, because living under a written Constitution, no branch or department of the government is supreme, and it is the province and duty of the judicial department to determine in cases regularly brought before them, whether the powers of any branch of the government, and even those of the Legislature in the enactment of laws, have been exercised in conformity to the Constitution; and if they have not, to treat their acts as null and void.
Prem Chand Jain, J. I agree with brother Sandhawalia, J. Gurnam Singh, J. I also agree with brother Sandhawalia, J. Harbans Lal, J. 390. I have had the benefit of perusing the elaborate and exhaustive judgment of my Lord the Chief Justice and my learned brother Sandhawalia, J. 391. The Petitioner is a member of the Haryana Vidhan Sabha (hereinafter called the Vidhan Sabha). In the year 1973, he published two booklets entitled. "A Chief Minister Runs A much--Indian Democracy in Danger," and "Emergence of Rough and Corrupt Politics in India--Anatomy of a Chief Minister," which were widely circulated. On a motion by two members of the Vidhan Sabha, the matter was referred to the Committee of Privileges. The Committee submitted its report on January 7, 1975. On January 8, 1975, the Vidhan Sabha adopted a unanimous motion expelling the Petitioner from the House and by a notification, Annexure P. 7, he was declared to have ceased to be a member of the Vidhan Sabha. This decision, expelling the Petitioner, has been challenged in this petition on numerous grounds all of which have been repelled after elaborate and detailed discussion by my Lord the Chief Justice and the petition has been dismissed. I am in respectful agreement with the same. However, in view of the importance of some of the issues which have a bearing on the interpretation of some provisions of the Constitution, I propose to specifically express my opinion on them. 392. The first and the foremost attack by the Petitioner against the decision of the Vidhan Sabha expelling him is that the State Legislatures in India have not been invested with the power and privilege of expelling their members under the provisions of the Constitution. The sole source of all powers and privileges of the State Legislatures, their members and the Committees is Article 194 of the Constitution. Under Clause (1) of Article 194, members of the State Legislatures have been guaranteed freedom of speech inside the Legislature. Under Clause (2), it has been guaranteed that the members of a State Legislature can exercise their right of vote fearlessly without being exposed to any danger or being proceeded against in any Court of law. Other powers, privileges and immunities of a House of the Legislature, members and the Committees of the House, have been conferred under Clause (3), which is reproduced below: In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members of 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 until so defined, 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.
393. It is undisputed that the powers, privileges and immunities of the House of the State Legislatures members and the Committees of the Legislature have not been embodied in any law, by the Vidhan Sabha, and as such, the Legislature, its members and the Committees are entitled to all the powers, privileges and immunities as were available to the House of Commons of the Parliament in the United Kingdom on January 26, 1950, when the Constitution of India came into force. Therefore, whenever any question regarding the powers, privileges and immunities of the State Legislatures in India or any decision of the State Legislatures in which these have been exercised is challenged, the Courts are required to closely peruse the history of the powers, privileges and immunities of the House of Commons which has been a long history of persistent and determined struggle through centuries as a result of which the same came to be enjoyed by the House of Commons and their members. There are some powers and privileges which are enjoyed by the House of Commons in relation to the King in England. For instance, the right to petition and To remonstrate to the King through the Speaker. In England, there is Kingship still in continuation though for all practical purposes, the King or the Queen is a Constitutional ? Head and all the powers are exercised by the Prime Minister and his Cabinet or the Parliament in his name. In India, we have written Constitution and the powers of the President of India and the Governors in the States vis-a-vis the Parliament and the State Legislatures are well defined and preserved in the Constitution. Then, there are some powers and privileges which are enjoyed by the House of Commons because they have the right to determine the Constitution of the House and the qualifications or the disqualifications of its members. At one time, election disputes were also decided by the Commons through committees. This power and privilege does not vest in the State Legislatures as would be discussed later. 394. Their Lordships of the Supreme Court in re. under Article 143. Constitution of India
There can be little doubt that the powers, privileges and immunities which are contemplated by Clause (3), are incidental powers, privileges and immunities which every Legislature must possess in order that it may be able to function effectively, and that explains the purpose of the later part of Clause (3).
It was further held that all powers and privileges of the House of Commons cannot be claimed by the State Legislatures. In paragraph 45 of the report, this aspect of the matter was elaborately dealt with and those powers and privileges which have not descended to the State Legislatures in India were indicated. The same is reproduced below: This broad claim, however, cannot be accepted in its entirely, 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 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 impeachment 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.
Thus, according to the Supreme Court, the power and privileges of the House of Commons to provide for and regulate its constitution is exercised in three ways which do not include the power and privilege to expel the members of the Legislatures. This conclusion finds support from the celebrated and classic work of Erskine May in his book, Parliamentary Practice, 18th Edition, page 108, which is in the following words: It is a privilege of the House of Commons to provide for its own proper constitution as established by law. The 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 the case of doubt. 395. The emphatic contention of the Petitioner is that the conclusion of the Supreme Court in the above referred case that the power of the House of Commons in relation to its constitution can be expressed in three ways is only illustrative and not exhaustive, that the House of Commons while taking decision to expel its members also exercises the same powers and privileges to provide for regulate its constitution and that this power of expulsion, in fact, is not a penal power of the House of Commons as no penal jurisdiction vests in the Conmons except in relation to its constitution and composition. The Supreme Court in the aforesaid case perused the history of powers and privileges of the House of Commons in minute details for the purpose of interpreting the true scope of Article 194(3) of the Constitution and discussed all the contentions relating thereto threadbare. It cannot be said that when their Lordships of the Supreme Court stated that the power of the House of Commons to constitute itself is expressed in three ways, this statement of law was not intended to be exhaustive. In paragraph 74 of the report, the Supreme Court also made reference to the other privileges which is to the following effect: Amongst the other privileges are; the right to exclude strangers the right to control publication of debates and proceedings, the right to exclude cognizance of proceedings in Parliament, the right of each House to be the sole judge of the lawfulness of its own. proceedings, and the right implied to punish its own Members for their conduct in Parliament.
From this, it is clear that the right of the House of Commons to punish its own members for their conduct in the House is specified as an independent power and privilege and not as an adjunct of the power to constitute itself. According to May, at page 127 of his book (18th Edition), in the case of contempts committed against the "House of Commons besides other penalties, two penalties of suspension from the service of the House and expulsion are available to the House of Commons; and in some cases, expulsion has been inflicted in addition to committal. At page 141 of the same book, is given the list of instances of breach of privileges or contempts by publishing false or scandalous libels on either House or its proceedings as well as the instances of breach of privileges or contempts by speaking words defamatory of either House or its proceedings. Some of these cases will be adverted to in some detail ofterwards. This is clear that May also treated the power of the House of Commons to expel its members as a punitive power to punish the defaulting members for their acts of contempt or breach of privilege. 398. The Petitioner has, however, in support of his contention, relied on the following passage of May, at page 128: 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.
The mere fact that May also considers the power of expulsion as an example of the House''s power to regulate its own constitution cannot detract from his observations and conclusions at more than one place in the book that expulsion is a method of punishment at the disposal of the House. Whether it is convenient to include it in one category or another, is not of much relevance for the purpose of determining the true nature and character of the power. 397. In S.M.S. Sharma v. Sri Krishna Sinha and Ors. A.I.R. 1975 Supreme Court 2299 (Supra) also the Supreme Court closely examined this question. In paragraph 18 of the judgment, the privileges of the House of Commons were grouped into two heads, namely, those demanded of the Crown by the Speaker of the House of Commons at the commencement of each Parliament and granted as a matter of course and secondly, those not so demanded by the Speaker. Under the second head, the right to provide for due composition of its body and the right to enforce compliance of its privileges by fine, imprisonment and expulsion has been put under different and separate heads. The same may be reproduced: The privileges of the House of Commons have been grouped under two heads, namely, (i) those demanded of the Crown by the Speaker of the House of Commons at the commencement of each Parliament and granted as a matter of course and (ii) those not so demanded by the Speaker. Under the first heading come (a) freedom from arrest (claimed in 1954), (b) freedom of speech (claimed in 1541), (c) the right of access to the Crown (claimed in 1536) and (d) the right of having the most favourable construction placed upon its proceedings. The second head comprises (i) the right to provide for the due composition of its own body, (ii) the right to regulate its own proceedings, (iii) the right to exclude strangers, (iv) the right to prohibit publication of its debates, and (v) the right to enforce observation of its privileges by fine, imprisonment and expulsion. Admonition and reprimand are milder forms of punishment.
These conclusions by the Supreme Court are based on Redge''s Constitutional Law and Halsbury''s Laws of England. 398. At one stage, the Petitioner emphasised that the House of Commons did not have the powers to expel a member at all in the exercise of its penal jurisdiction, but subsequently, it was conceded that the House exercises this power for providing for an regulating its constitution and also for punishing members for contempt of the House committed within its four walls. Even the latter power, according to the Petitioner, was subject to certain other limitations. To Judge the validity of this statement, the scrutiny of the cases in which the House of Commons has exercised this important privilege, to expel its members is very much relevant and helpful. It will not be possible to go into details of all the cases in which the members were either admonished, reprimanded, committed to prison or expelled by the House of Commons for their misconduct of one nature or the other, through the centuries. Reference may be made only to some of the important cases. 399. The earliest is Hall''s case. In 1580, Mr. Hall had published a book which was derogatory to the members of the House of Commons. On the basis of a complaint made oh February 4, 1580, the matter was referred to the Privileges Committee and, thereafter, by the decision of the House, he was committed to the Tower of London for six months, fine and also expulsion. [C.J. (1647-1628) 122, 125, 126: D''s Ewes 291]. This punishment was awarded in spite of tendering of apology. 400. Asquill had published a book containing a number of profane and blasphemous expressions highly reflecting on the Christian Religion. There was, however, no reflection or aspersion on the House of Commons or its members as such. In 1707 A.D. he was expelled as being unfit for membership. 401. In December, 1819, Hobhouse, a member of the House of Commons had written a pamphlet in which the following comments had been made: Nothing but brute force, or the pressing fear of it would reform Parliament.
The House of Commons held him guilty of the breach of privilege and committed him to prison. 402. On February 26, 1838, Mr. O''Connell was reprimanded by the House of Commons for having made a speech which was reported in two newspapers which contained the following comments: Foul prejury in the Tory Committees of the House of Commons ... who took oaths according to Justice and voted for Party.
403. On August 15, 1901, a complaint was made of an article published in the Globe newspaper describing Irish members as rowdies and abusing them generally of wholesale political corruption. The House of Commons held this to be a breach of privilege and the editor and the publisher of the newspaper were summoned at the bar of the House. Though they tendered apology, but were still reprimanded. 404. In July, 1930, Mr. Sandham was admonished by the House of Commons for having made a speech reported in the Manchester Guardian in which allegations of receiving bribes to help pass doubtful bills in the interest of the private individuals had been made against members of the Labour Party. 405. Allighan''s case is most recent in point of time just before the enforcement of our Constitution and fully supports the contention of the Advocate-General that the House of Commons had the undoubted power and privilege to punish its members for acts of contempt or breach of privilege. On April 16, 1947, a complaint was made to the House of Commons regarding an article having been written by Mr. Allighan in the issue of April 3, 1947, of the ''World''s Press News'' in which derogatory remarks had been made against the members of the House of Commons. Mr. Arthur Heighway was the editor and publisher of this newspaper. The matter was referred to the Committee of Privileges. After its report and consideration by the House on October 30, 1947, at first, the editor and publisher was brought to the bar of the House who offered his sincere apology. Thereafter, Mr. Allighan was also heard who explained that he had not insulted the house or its members deliberately and expressed his deep regrets. After considering the entire matter, the following resolutions were passed: Resolved, that the article written by Mr. Allighan and published in the ''World''s Press News of 3rd April 1947, in its general tone, and particularly by its unfounded imputations against unnamed Members of insobriety in the precincts of this House, is an affront to this House, and that both Mr. Allighan, as the writer of the article, and Arthur Heighway, the editor and publisher of the ''World''s Press News'', are guilty of a gross contempt of this House. Resolved, that Mr. Allighan, in persistently misleading the Committee of Privileges in his evidence, and in seeking to cast suspicion on others in respect of the very matter of which he knew himself to be guilty, has committed a grave contempt of this House in disregard of the resolution of this House on the 12th day of November, 1946, that if it shall appear that any person hath given false evidence in any case before this House, or any Committee thereof, this House will proceed with the utmost severity against such offender. Afterwards, a motion was moved that Allighan was guilty of dishonourable conduct which deserved to be severely punished. As Mr. Allighan was the member of the House of Commons, a second motion was moved that he should be suspended from the House for six months and deprived of his salary for this period. However, ultimately, he was expelled from the House for his gross contempt of the House. This case is almost on all fours with the facts and circumstances of the present case and lends support to the contention of the Respondent that the House of Commons had been exercising the privilege of expelling its members as a punitive measures and for punishing for acts of contempt of the House whether committed within or outside the House. Similar innumerable instances can be multiplied. 406. The Petitioner, strongly relied upon the opinion of Sir William R. Anson, in his book, ''The Law and Custom of the Constitution'', Volume I, Fourth Edition, 1909. The learned author has divided the privileges of the House of Commons into two categories. In the first category are included the privileges of the House which are claimed by the Speaker at the commencement of every Parliament. They are claimed as ancient and undoubted and are most readily granted and confirmed by the Crown. In this category are included, freedom from arrest, freedom of speech, freedom in relation to the exclusion of strangers and freedom of speech in relation to the publication of debates. In the second category are listed the privileges of the House not demanded by the Speaker. This list comprises of the right to provide for its proper constitution, right to exclusive cognizance of matters arising within the House and power of inflicting punishment for breach of privilege (at pages 167 to 180). At. page 167, according to the learned author, the right to provide for its proper constitution is exercised by the issue of writs for filling the vacancies in the Parliament during its existence, by enforcing disqualifications for sitting in Parliament, and until 1868 by determining disputed elections. There, the right of the House of Common to expel its members is not specifically mentioned. However, during discussion of the three ways in which the right to provide for its proper constitution is exercised, at page 172, the right to expel a member is also discussed. According to the learned author, though expulsion vacates the seat of the expelled member, it does not create a disqualification inasmuch as the expelled member is entitled to stand for the election and be returned by the constituency for the second time. In the second category, at page 177, under the head (c) Power of inflicting punishment for breach of privilege'', the methods and mode of inflicting punishment are discussed. Admonition, reprimand, commitment to prison are one of those modes. At page 178, expulsion is also specifically mentioned as one if the modes of punishment in the following words: In the case of its own members, the House has a stronger mode of expressing its displeasure. It can by resolution expel a member or order the Speaker to issue his warrant for a new writ for the seat from which the member has been expelled, but it cannot prevent the re-election of such a member by declaring him incapable of sitting in that Parliament.
Again, after expressing this opinion, the author has thought fit to express an opinion further to the following effect: But expulsion is a matter which concerns the House itself and its composition and amounts to no more than that an expression of opinion that the person expelled is unfit to be a member of the House of Commons.... It is, then the right of commitment which becomes, in the words of Sir E. May, ''the keystone of Parliamentary privilege''. It remains to consider how it is exercised and by what right.
In my considered opinion, according to Anson, the right of the House of Commons to expel its members is one of the modes of punishment for breach of privilege. It is also confirmed by him that commitment is one of the important parliamentary privilege. In view of this, it is very difficult to reconcile the conflicting opinions expressed by the celebrated author. At one time, the author thinks that expulsion is a matter which concerns the composition of the Hous, at another time, it is considered as one of the modes of punishment exercisable as a privilege by the House of Commons. The only way to reconcile these two conflicting opinions can be that the House of Commons has the power of expelling its members both as an adjunct to the power to constitute itself and also as an independent and distinct power to inflict punishment on the erring and defaulting members of the House who on account of the alleged misconduct may not be considered to be fit for the membership of the House. 407. According to the Petitioner, power of expulsion is held to he the power in relation to the power to constitute the House, in Halsbury''s Laws of England, Volume 28, Third Edition. This contention also does not bear scrutiny. Privileges of Parliament have been dealt with in Part 7 of this volume. Paragraphs 893, 905 arid 906 are relevant in this regard and may be reproduced below: 893. Claim to rights and privileges. The House of Lords and the House of Commons, which together constitute the High Court of Parliament claim for their members, both individually and collectively, certain rights and privileges which are necessary to each House to maintain its independence of action and the dignity of its position. Each House is the guardian of its own privileges and claims to be the sole judge of any matter that may arise which in any way infringes upon them, and, if it deems it advisable, to punish any person whom it considers to be guilty of a breach of privilege or a contempt of the House. 905. Privilege of the 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. 908. Power of expulsion. Although the House of Commons has delegated its right to be the judge in controverted elections, it retains its right to decide upon the qualifications of any of its members to sit and vote in, Parliament. If in the opinion of the House, therefore, a member has conducted himself in a manner which renders him unfit to serve as a member of Parliament, he may be expelled from the House, but unless the cause of his expulsion by the House constitutes in itself a disqualification to sit and vote in the House of Commons, it is open to his constituency to re-elect him. The expulsion of member from the House of Commons is effected by means of a resolution, submitted to the House by means of a motion upon which the question is pro-proposed from the chair in the usual way. A closed combined reading of the same leaves no manner of doubt that the House of Commons has the undoubted power and privilege to punish any person including its members, who are considered to be guilty of a breach of privilege or contempt of the House and that this power is necessary to maintain the independence of action and dignity of the House. Power of expulsion has also been held to be as one of the privileges of the House of Commons. Though this power is discussed in paragraph 906 where the powers of the House to decide disputed elections or to decide about the qualifications of its members is also discussed, but from this conclusion cannot be warranted that the power of expulsion is vested in the House of Commons only as an adjunct to the other power to provide for its constitution. In paragraph 913 of the aforesaid book, there is a discussion about the various offences which are treated as contempts or breaches of privilege. One of those offences is speeches or writings reflecting on the House or on the individual members in their capacity as such or misconduct in the presence of the House or a Committee of the House. If the House of Commons 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 in substance a penal power, into the power only linked with the constitution or composition of the House. 408. The Petitioner has also assailed the validity of the decision in
409. It was contended by the Petitioner that the circumstances in the abovementioned case before the Madhya Pradesh High Court were of a very extreme nature and perhaps, the learned Judges of the High Court were swayed by the facts of that particular case. It was also contended that hard cases generally make bad laws. I do not think that the learned Judges of the Madhya Pradesh High Court who dispassionately and elaborately considered all the contentions and the history of the privileges of the House of Commons in the light of the commentaries of the various learned authors were in any way influenced by extraneous considerations. The said case and the Allighan''s case referred to in the earlier part of this judgment, rather provide a strong justification and the necessity for the Legislature to have this power of expulsion. There is no doubt, however, that this extreme power should be normally exercised in extreme and exceptional cases. The Petitioner in his over-enthusiasm and anxiety to reinforce his point of view went to the extent of saying at one stage that this power of expulsion will invest the State Legislatures with very arbitrary and unfettered weapons in the hands of majority to be tyrannical and expel any inconvenient member of the House on one pretext or the other. It was even suggested that a large number of members in the Vidhan Sabha do not know English language and do not understand the nature and the true scope of the privileges of the House of Commons. This line of thinking, if I may say so, betrays lack of faith in the fundamentals of democracy as enshrined in our Constitution which has guaranteed participation to the entire adult population of the country in the matter of choosing their representatives or be elected as their representatives irrespective of the fact whether the representatives have the pride of the label of high education in English or not. The representatives of the Legislature on account of political training they have through the process of election and working amongst the people have, if not the benefit of high education, at least robust commonsense. Besides, no power of privilege can be denied to the representatives of the people as members of the Legislature only on the apprehension that this power which is undoubtedly drastic in nature may be misused or exercised arbitrarily. If the representatives of the people in the Legislatures can be depended upon to enact all important laws, which affect the destiny of the people, and to levy taxes, they can be depended more so regarding the decisions with regard to their colleagues in the Legislature. In the ultimate analysis, the Legislatures and their members are accountable to the vast masses, that is, their electors and their conduct is subject to scathing scrutiny at the polls. 410. According to the Advocate-General, the framers of the Constitution did not think it fit to enumerate the list of powers and privileges for the State Legislatures and their members, but were quite clear about the powers and privileges of the House of Commons existing before the enforcement of the Constitution on account of their close association with the working of the House of Commons during the long struggle for freedom. Some idea about their intention as to whether the powers and privileges of the House of Commons available to the State Legislatures also include the power of expulsion or not can be gauged from the case of H.G. Moudgil, a member of the Lokh Sabha, who was expelled by a unanimous resolution of the House on September 25, 1951. At that time, most of the founding father were members of the Lok Sabha especially the architects of the Constitution like the Prime Minister Nehru, Dr. Ambedkar and Dr. K.M. Munshi and others. The allegation against Shri Moudgil was that he had misused his position as member of the Parliament and had been passing secret information to some elements outside on payment. The matter was referred to the Committee of Privileges on June 8, 1951. During the course of the debate, Shri Moudgil tendered his resignation from the membership of the Lok Sabha, but all the same, he was expelled from the House. According to the Petitioner, this case cannot serve as a precedent on two grounds. Firstly, because Shri Moudgil had accepted the action against him by resigning from the Lok Sabha and secondly because he had not challenged the decision in a Court of law. As against this, the important fact cannot be lost sight of that the. motion expelling Shri Moudgil from the membership of the Lok Sabha had been passed unanimously including the members of the opposition and Shri Moudgil was a member of the ruling party-Therefore, the decision cannot be criticised on the allegation that the decision was the misuse of the power of expulsion. As this power was exercised immediately after the framing of the Constitution, it is clearly indicative of the intention of the Constitution makers regarding the scope of powers conferred on the State Legislatures by enacting Article 194(3) in the Constitution. 411. Again, in August, 1964, Shri G.V. Dhote, a member of the Maharashtra Legislative Assembly was expelled from the membership of the House through a motion of the Assembly for his gross disorderly conduct inside the House. The mere fact that these two decisions were not the subject-matter of judicial scrutiny cannot be used for lending any strength to the contention of the Petitioner. On the other hand, it can be justifiably interpreted that both enlightened judicial and political opinion in the country was that the State Legislatures were undoubtedly invested with this power of expulsion. That is why the persons concerned or their supporters did not think it fit to challenge the decision of the Parliament or the Legislative Assembly concerned in a Court of law. 412. It was contended by the Petitioner that the power to expel is a judicial power which cannot be exercised by the Legislature. However, it was conceded that the House of Commons did have the power to punish the contemners for their acts of contempt or, for breach of privilege of the House by committing the defaulters whether members or others to imprisonment and that this power of commitment has descended on the State Legislatures. If this is so, the power to commit or to inflict punishment of any kind will nevertheless be a judicial power. If one kind of judicial power can be exercised by the Legislature why not the other? If this power of punishing a contempt or breach of privilege is taken away, I am afraid, the Legislatures will not be in a position to maintain their dignity and even to ensure the smooth working of the Legislatures. 413. It was then contended that the working of the State Legislatures in India after the enforcement of the Constitution shows that the Legislatures or the Parliament can function properly and perform their duties without resort to the power of expulsion and that such a power is not available to the Parliament known as Congress in the United States of America. This contention is not very much relevant to the issue. Existence of power does not mean that the same must be exercised frequently. It only means that such a power will be available to the Legislatures if and when needed. The fact that there have been very few cases which can be counted on fingers in which the Parliament or the State Legislatures resorted to the exercise of this extreme power of expulsion shows that there is no danger of this being misused or arbitrarily exercised. So far as the position in the United States of American is concerned, the analogy is not very appropriate. The American constitution is quite different from the Constitution in India in many respects and if this is so in the case of power and privileges of the Legislatures, no argument is sustainable on that ground. 414. From the aforesaid discussion, my considered opinion is that the powers and privileges of the House of Commons which have devolved upon the State Legislatures under Article 194(3) of the Constitution include the power of expulsion. 415. The second contention of the Petitioner is that even if the power and privilege of the House of Commons to expel its members has descended oh State Legislatures under Article 194(3) the same is not available and the State Legislatures have no jurisdiction to exercise the same in view of the provisions of Article 190 and 191 of the Constitution. It has been contended that the composition of the Legislative Assembly in each State and that of the Legislative Council wherever necessary has been provided under Articles 170 and 171 of the Constitution. The tenure of the Legislative Assembly has been provided under Article 172. The qualifications of the members of the Legislatures are laid down in Article 173. Under Clause (3) of Article 173, some qualifications can be prescribed by law made by Parliament. Representation of People Acts of 1950 and 1951 have been enacted by the Parliament for the purpose. Emphasis is then laid on the prescription of disqualification of the members under Articles 190 and 191. Articles 190 and 191 may be reproduced below: 190(1). No person shall be a member of both Houses of Legislature of a 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. (2) 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. (3) If a member of a House of the Legislature of a State-- (a) becomes subject to any of the disqualifications mentioned in Clause (1) 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 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. (4) If for a period of sixty days a member of a House of the Legislature of a 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. 191(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State-- (a) 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; (b) if he is of unsound mind and stands so declared by a competent Court; (c) if he is an undischarged insolvent ; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State ; (e) if he is so disqualified by or under any law made by Parliament. (2) For the purposes of this article, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. 416. According to the Petitioner, Articles 190 and 191 of the Constitution are exhaustive of the modes of vacation of seats in the Legislatures. If the intention of the Constitution makers was that a seat could also fall vacant as a result of the exercise of power of expulsion by the legislature, the same would have been expressly mentioned in these two articles. It was also contended that the Constitution has guaranteed the basic right to the people who are the real sovereign to participate in the governance of the country by electing their representatives to the Parliament and the State Legislatures for a fixed term. Unless Legislatures are dissolved or suspended in accordance with the other provisions of the Constitution, this right of representation can be denied to the people only by the methods which Have been provided under Articles 190 and 191 and in no other manner. Thus the power of expulsion of the Legislature is in direct conflict with the fundamental and basic right of franchise and representation. In these circumstances, this right even if it is held that the_same is one of the powers and privileges of the Legislature as envisaged under Article 194(3) must give way to Articles 190 and 191 which provide for the situations in which the seat can be vacated. It was also asserted that the power of expulsion in the Legislatures is against the basic scheme of the Constitution. These contentions, though attractive on the face of it, do not have solid foundation. While construing Articles 190 and 191, we cannot lose sight of the scheme of various clauses of Article 194. In Clause (1) of Article 194, freedom of speach in the Legislature has been guaranteed, but this has been made "subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of the Legislature". However, Clause (2) by which the freedom of vote by the members of the Legislature has been guaranteed and Clause (3) by which powers, privileges and immunities have been conferred on the State Legislatures and their members, have not been made subject to any other provision of the Constitution. The same cannot be interpreted to be accidental or inadvertent. Articles 190 and 191 are just followed by Article 194. The framers of the Constitution while enacting Article 194 (3) must be absolutely conscious that provision had been made for vacation of seats in certain circumstances in the Legislatures and in spite of that, powers, and privileges were conferred on the State Legislatures. If the purpose was that Clause (3) of Article 194 was to operate subject to Articles 190 and 191, the same would have been specifically provided. While interpreting Clause (1) of Article 194 vis-a-vis Article 19(1)(a), the Supreme Court in the Reference case (A.I.R. 1965 SC 745) held.-- If all that the legislators were entitled to claim was the freedom of speech and expression enshrined in Article 19(1)(a), it would have been unnecessary to confer the same right specifically in the manner adopted by Article 194(1) and so it would be legitimate to conclude that Article 19(1) (a) is not one of the provisions of the Constitution which controls the first part of Clause (1) of Article 194.
On the parity of reasoning, it can be safety and justifiably interpreted that it was the intention of the Constitution makers, that Articles 190 and 191 will not control Clause (3) of Article 194. 417. It was held by the Supreme Court in the aforesaid case that in dealing with the effect of the provisions contained in Clause (3) of Article 194 whenever it appears that there is a conflict between the said provision 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. Firstly, let us see if there is a conflict between the provisions of Article 194(3) and Articles 190 and 191 so far as the power and privilege of expelling the members of the Legislatures are concerned. In my opinion, the conflict is more apparent and superficial than real or substantial. Articles 190 and 191 only provide for those situations where a seat in the Legislature will be held to fall vacant because of either any disqualification incurred by a member of the Legislature on account of holding any office of profit or if he becomes a member of two constituencies or becomes a member of Legislatures of more than one State or if he tenders his resignation or if he is of unsound mind or is an undischarged insolvent These provisions do not envisage any situation where a member of the Legislature after his election misuses his power as such and misconducts himself or indulges in any action whether by Words spoken or in writing, derogatory to the dignity of the Legislature or is responsible for bringing the Legislature into contempt. On the other hand, the conduct of the legislators is taken care of in Article 194(3) and the consequences are also provided therein. Thus construed, Article 194(3) on the one hand and Articles 190 and 191 on the other, operate in different areas and different circumstances and the provisions do not conflict with each other. There is no denying the fact that the right of franchise and the right of representation of the people in the Legislatures are basic to the scheme of the Constitution, but the powers and privileges of the Legislature as provided in Article 194 are no less basic. Whereas the Constitution makers were justifiably anxious to provide for the rights of the people who are sovereign, they were equally anxious to see that the Legislatures are armed with those rights, powers and privileges with the help of which these could work and discharge their functions effectively and adequately. A close perusal of Articles 190 and 191 does not give any indication that the same are exhaustive of the mode of vacation of the seats in the Legislatures. If the contention of the Petitioner is upheld, we shall have to read in Article 194(3) that the said provision is subject to Articles 190 and 191, which is not so. 418. The Petitioner also advanced the theory of consequences as well as the implied limitations on the power in support of his contention. According to the Petitioner, if power of expulsion is allowed to remain with the Legislatures, the result can be disastrous and bare majority of the members of the Legislatures can resort to the frequent exercise of the right to expel and thus throw out the members in minority or opposition in Legislatures indiscriminately. As stated earlier, this is based on the apprehension which is without substance. The theory of implied limitation of powers is also not relevant to the issue in question. The issue in the present case simply is whether the power and privileges of expulsion has descended to the State Legislatures from the House of Common under Article 194(3). If the same has devolved as I have held in the earlier part of the judgment, there is no question of application of the theory of implied limitation of powers. 419. The contention that exercise of power of expulsion by the Legislature results in depriving a constituency or constituencies of their right of representation and thus sets at nought the basic right of the people guaranteed under the Constitution is also unsustainable. In the final analysis, if as a result of the exercise of power of expulsion, the seat falls vacant, the constituency is immediately called upon to elect its representative and even the same member who may have been expelled can also seek a fresh verdict from the people and be returned. If inspite of the misconduct of the member and consequent action by the Legislature to expel him, is exonerated by the electorate who again elect him, the guilt of the member in a sense gets exonerated by the people whose verdict must prevail over the decisions of all other institutions. 420. The Petitioner also tried to derive support from some of the cases in the United States of America especially Hallet Kilbourn v. John G. Thompson U.S.S.C. Reports 26 Law Edition 377 and Charles W. Baker et al v. Jeo C. Carr et al 369 U.S. 196 Supreme Court wherein the decision of the House of Representatives to expel their members was set aside by the U.S. Supreme Court, but the position of the Constitution regarding the rights and powers of the House Representatives in the United States of America is entirely different from the Constitution in India. The House of Representatives, in America does not have the power to expel their members In Hallet Kilbourn''s case (supra), Justice filler of the U.S. Supreme-Court held.-- We are of the opinion that the right of the House of Representatives to punish the citizens for a contempt of its authority or breach of its privileges, can derive ho support from the precedents and practices of the two Houses of the English Parliament nor the adjudged cases in which the English Courts have upheld these practices.
421. This contention also cannot be agreed td that in case of conflict the provisions of Articles 190 and 191 override the provisions of Article 194(3). There is no warrant for this proposition. Firstly, as I have said earlier, there is no conflict. Secondly, Article 194 follows Articles 190 and 191 and the same has not been enacted as being subject to the provisions of Articles 190 and 191. With regard to the powers and privileges of the State Legislatures and its members, Article 194 is the only specific provision. It cannot be held that Articles 190 and 191 are specific provisions whereas Article 194 is a general provision and, therefore, according to the established cannons of interpretation, Article 194(3) should give way to Articles 190 and 191. 422. Thus viewed from any angle, the power of expulsion as provided in Article 194(3) is not in any way affected or negatived by Articles 190 and 191. 423. The next contention of the Petitioner is that the matter regarding the publication of two booklets by him was referred by the Vidhan Sabha to the Committee of Privileges by a, motion on November 12, 1973. Before any report could be submitted by the Committee and final decision taken by the Vidhan Sabha, the latter was prorogued by the Governor on December 4, 1973. After the House was re-summoned, this motion was not revived. On account of the applicability of the doctrine of lapse, the motion referred to the Committee of Privileges stood lapsed and as the some was not revived at any time, the Vidhan Sabha had no jurisdiction or power to take the decision and pass the motion expelling him from the membership of the House on January 8, 1975. It is contended that under Article 196(3), only bills pending in the Legislature at the time of the prorogation of the House have been saved from being lapsed and all other business has to be considered to lapse as a result of the prorogation by the Governor. In support of this proposition, strength is sought to be derived by the Petitioner from the following passage at page 256 in "Parliamentary Practice" by May, 18th Edition: The effect of a prorogation is at once to suspend all business until Parliament shall be summoned again. Not only are the sittings of Parliament at an end, but all proceedings, pending at the time are quashed, except impeachment by the Commons and appeals before the House of Lords. Every bill must, therefore, be renewed after a prorogation as if were introduced for the first time.... An adjournment has no such effect on parliamentary proceedings. Upon reassembling, each House proceeds to transact the business previously appointed, and all proceedings are resumed at the stage at which they were left before the adjournment.
This contention has been counteracted with equal force if not more by the Advocate General on behalf of the Respondents, on the following grounds ; 1. The doctrine of lapse of all pending business as a result of the prorogation as referred to by May in his book does not descend or devolve upon the State Legislatures as other powers, privileges or immunities of the? House of Commons, as envisaged under Article 194(3). 2. As a result of the decision by the Vidhan Sabha on a motion, the matter, in dispute, was referred to the Committee of Privileges on November 12, 197 with the direction that a report be made by January 31, 1974. With the final disposal of this motion, the business regarding the matter, in dispute, was not pending before the Vidhan Sabha at the time of prorogation on December 4, 1973, and, therefore, even if the doctrine of lapse was applicable in such matters, there being no business before the House, there was nothing to lapse ; 3. In the alternative, as it was not possible for the Privileges Committee to complete its report within the stipulated time, the Committee submitted an interim report on January 15, 1974 and by a motion of the Vidhan Sabha the Privilege Committee was given further time to make its report upto January 31, 1974. Subsequently also, the time for making the report by the Committee was got extended through a motion from the Vidhan Sabha after each prorogation on July 31, 1974, August 20,1974 and December 10, 1974. Therefore, the Vidhan Sabha was within its competence to pass the motion expelling the Petitioner on December 28, 1975 ; and 4. Even if there was any irregularity in the procedure, the same is cured under Article 212 of the Constitution. 424. It cannot be disputed that to a great extent out Constitution is based on the model of the Constitution which got developed in England through generations and parliamentary practices from time to time. It also cannot be denied that the framers of the Constitution also drew inspiration from other Constitutions like those of America, Canada, Australia etc. Regarding the powers, privileges and immunities of the Legislature, their members and Committees, the Constitution ''specifically lays down in Article 194(3)'' that till the law was made by the State Legislatures in this regard, all rights, privileges and immunities of the House of Commons as existed on January 26, 1950, will descend to the State Legislatures. Regarding all other matters in respect of the composition of the Houses, qualifications of the members, right and mode of election, formation of Government and the powers of the Government, the Judiciary and the Legislature, provisions have been made in minute details so as to avoid any doubt or misunderstanding. So far as the internal working of the Legislatures is concerned, the letter have been made the sole judge and all their decisions are to be taken by majority of votes. Under Article 208(1), each House of State Legislature has been given full and unfettered powers to make rules for regulating its procedure and the conduct of its business, but these rules are to be subject to the other provisions of the Constitution and in the absence of these rules, the rules of the Legislatures as were existing and were in force before the commencement of the Constitution were to apply under Clause (2) of this Article. Under Article 212, the validity of the proceedings cannot be questioned in any Court on the ground of any alleged irregularity of procedure. It has been further held in Clause (2) that in the matter of regulating the procedure and conduct of business or maintaining order in the Legislature, the Speaker of the Legislature or any other officer of the Legislature shall not be subject to the jurisdiction of any Court. Detailed procedure has been prescribed in the various provisions of the Constitution as to how the bills will be initiated and passed after undergoing various processes at different stages. From the scheme of the various provisions of the Constitution, matter is not left in doubt that except in matters of rights, privileges and immunities of the State Legislatures or the Parliament the practices and the precedents of the House of Commons are not binding on the State Legislatures and Parliament as a matter of law. They might, however, serve as a guide. The Petitioner has emphatically asserted that the provisions of Article 196(3) wherein it is laid down that the bills pending in a Legislature shall not lapse on account of the prorogation of the House, makes it abundantly clear that the doctrine of lapse of business was before the eyes of the framers of the Constitution and by enacting this provision, they wanted to save only the pending bills from the applicability of doctrine of lapse and not other business. This may be one way of looking at the various provisions, but we cannot lose sight of the fact that framers of the Constitution were anxious to expressly lay down in detail regarding all matters. If their intention was that in all fields, not covered by the provisions of the Constitution, the procedure and practices of the House of Commons will be applicable, nothing stood in the way in making such a provisions as was done in Article 194(3). On the other hand, power was given to each State Legislature to make rules and regulations for laying down its procedure and conduct of its business under Article 208(1). The only restriction placed was that those rules will be subject to the other provision of the Constitution. Thus the only interpretation can be that where the Constitution is silent or does not provide expressly, the rules made by the Legislature of a State will have a binding force. Thus construed, in my opinion, if Articles 208 and 196(3) are read together, the only conclusion possible is that bills pending in the Legislature of a State shall not lapse on account of prorogation of the House under any circumstances even if rules to the contrary are made by any Legislature. Regarding all other business, the State Legislatures have been left free to formulate their rules and regulations. In the present case, to find out whether the motion of privilege referred to Privileges Committee lapsed or not on the prorogation of the House by the Governor, we are required to look to the rules only and interpret the same because regarding these matters, nothing is provided in the Constitution. It is not disputed that the Haryana Legislative Assembly has framed its rules of procedure and conduct of business. So far as the question regarding the lapsing of business before the Vidhan Sabha is concerned, Rule 7 is relevant and may be reproduced ; When a session of the Assembly is prorogued the Secretary shall issue a notification in respect thereof in the Gazette and inform the Members. On prorogation all pending notices subject to the provisions of the Constitution and these Rules shall lapse.
So far as the work entrusted by the Vidhan Sabha to the Committees is concerned, it is provided under Rule 227 that if a Committee of the Assembly is unable to finish its work, it may make a report to the Assembly regarding the same and the preliminary report prepared and the evidence which it may have recorded will be made available to the new Committee. Then, it is provided,-- Provided that any matter referred to or pending before a Committee before the appointed day shall stand referred to, or as the case may be, be deemed to be pending before the corresponding Committee, after the appointed day.
Under Rule 261, any question involving a breach of privilege can be raised and allowed under Rule 265. The same can be referred by the House to the Committee of Privileges under Rule 266. The Committee is to be constituted by the Assembly or the Speaker, as the case may be, at the commencement of the Assembly, under Rule 267. Such a Committee is to continue to perform its functions till the new Committee is constituted. The Committee of Privileges is required to submit its report to the Assembly within the time fixed by the Assembly under Rule 272 and if no time is fixed, then, within one month of the reference. Then, it is provided as under: Provided further that the Assembly may at any time, on a motion being made, direct that the time for the presentation of the report by the Committee be extended to a date specified in the motion.
A combined reading of these two rules makes it absolutely clear that the Assembly has been invested with the powers under these rules to extend the time for submission of the report by the Privileges Committee from time to time which was admittedly done in the present case. Under Rule 7, as referred to above, only pending notices lapsed on the prorogation of the House and that is also subject to the provisions of the Constitution. If any notice regarding any bill is pending that will not lapse because the same is provided under Article 196(3), but otherwise, all notices pending in the Assembly will lapse. Now the question to be determined is whether the matter which was sent to the Privileges Committee by the Assembly for report within a specified time can be held to be pending before the Assembly on the date of the prorogation. I am clearly of the opinion that such a motion cannot be held to be pending before the Assembly. As soon as the motion was moved in the Assembly that the matter be referred to the Privileges Committee and the same was passed and the matter was referred to the Privileges Committee, that brought the matter to an end so far as the Assembly was concerned. Assembly will be seized of the matter only when the report is submitted by the Committee and not before. Only that matter can be held to be pending before the Assembly regarding which the latter was in a position to take final decision one way or the other prior to its prorogation by the Governor. Obviously, till the report had been made by the Privileges Committee, it was not within the power of the Assembly to advert to the matter referred to the Privileges Committee and take any decision thereon. Pending business clearly means such business which is pending decision of the Assembly. The matter which is referred to the Privileges Committee is not pending the decision of the Assembly till the report is submitted. 425. Even the reliance by the Petitioner on the passage at page 256 of the book by May, as reproduced above, does not advance the case of the Petitioner in any manner. Its persual clearly shows that prorogation results in the suspension of all business pending before the Legislature. There is absolutely no reference in the passage, quoted above, to the business pending before any Committee of the House. According to the British Parliamentary practice, and the rules of State Legislatures, important work is entrusted to the Committees of the Assembly. A number of Committees are formed at the commencement of the Assembly, namely, Accounts Committee, Estimates Committee, Subordinate Legislation Committee, Privileges Committee and the Rules Committee whose work is of a perpetual nature. If their work were to come to an end with each prorogation, the Committees cannot function effectively. So far as the business pending before the Assembly is concerned, it was thought necessary that if any business is not carried out in a particular session of the Assembly, the same should lapse on prorogation of the House and if the Government thought the business not carried out to be so essential, the same could be introduced again. But so far as the business before the Committees is concerned, prorogation has no relevance and the work of the Committees is carried on away from the publicity and the fanfare with which the proceedings of the Legislatures are conducted. 426. The Petitioner contended that the Committees are nothing but the assembly in miniature as admitted by the Secretary, Legislative Assembly, in his reply filed in the present case. The argument seems to be misconceived. Under Article 174, it is only the House or the Houses of the State Legislatures which are summoned by the Governor and the same can be prorogued or dissolved by him, There is not even an indirect reference to the Committees of the Legislature. The Petitioner, however, relied upon the following'' observations of their Lordships of the Supreme Court in M.S.M Sharma''s case (supra),-- The effect of the prorogation only is to interrupt the proceedings which are revived on a fresh motion to carry on or renew the proceedings. In this case, it is not necessary to pronounce upon the question whether dissolution of the House necessarily has the effect of completely wiping out the contempt of the proceedings relating thereto.
In the said case, there was no question in issue as to the effect of prorogation on the proceedings before a Committee of the Legislature. The question raised was that the Legislature had absolutely no power to proceed in a matter of privilege arisen earlier, after prorogation. 427. On the side of the Respondents, reliance has been placed on Homi D. Mistry v. Shree Nafisul Hassan and Ors. ILR (1957) Bom 218 (supra) in support of the proposition that what is the effect of the prorogation on the pending business is a matter of procedure regarding which the Legislature is the sole master and judge and cannot be called in question on the ground of irregularity of procedure. There is considerable force in this contention as the paramount right of the Legislature regarding the procedure inside the Legislature is provided by the Constitution itself under Article 212. Even if it is held that the proceedings before the Committee of Privileges in the present case lapsed as a result of the prorogation to my mind, the same were revived when on the resummoning of the Legislature, motion was passed extending the time for making the report by the Committee of Privileges. 428. According to the Petitioner, as a result of prorogation, the motion by which the matter was referred to the Committee of Privileges itself lapsed. By the second motion only the time for making the report was extended, but the original motion was not revived. It is not permissible for the Court to interpret the decision of the Assembly in a hyper-technical manner. In substance, when the motion was passed by the Assembly after prorogation extending the time for making the report by the Committee, the Assembly, in fact, took the decision that the original motion stood revived and that the Committee of Privileges was entitled to make its report before the extended time. At the final stage when on January, 8, 1975, the final report of the Privileges Committee was considered and the motion was passed expelling the Petitioner from the membership of the House, the Speaker rejected all the contentions and allowed the motion to be moved and declared the same as passed by the House. This decision of the Speaker also cannot be questioned in the Court and the same is protected under Clauses (1) and (2) of Article 212. In M.S.M. Sharma''s case (supra), their Lordships, of the Supreme Court had the occasion to interpret the scope of Article 212. It was held: It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference by this Court under Article 32 of the Constitution. Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. More non-compliance with rules of procedure cannot be a ground for issuing a writ under Article 32 of the Constitution.
Thus, I hold that the motion referring the matter, in question, to the Committee of Privileges on November 12, 1973, did not lapse on account of prorogation of the Assembly. In the alternative, the same was revived by the decision of the Assembly extending the time for the Committee of Privileges for making its report. Therefore, it cannot be denied that once it is held that the Haryana State Legislature had the jurisdiction to consider the report of the Committee of Privileges and to expel the Petitioner from the membership of the House, its exercise cannot be questioned on any ground of irregular compliance or non-compliance of procedure as laid down, by the rules. 429. The Petitioner also challenged the decision of the Vidhan Sabha on the grounds of a number of alleged mala fides against the then Chief Minister and the then Speaker of the Vidhan Sabha. Factually, it has been held by my Lord the Chief Justice that none of the grounds of mala fides has been proved. I entirely agree, with the said finding and would not like to go into the details in this judgment, but in this connection, arguments were addressed on both sides on a principle of law. It was contended by the Petitioner that any decision of the Legislature will stand vitiated if the allegations of mala fides are established. On the side of Respondents, it was asserted that no mala fides can be attributed to the Legislature as such and reliance was placed on a Full Bench decision of this Court in Jai Singh Rathi and Ors. v. The State of Haryana A.I.R. 1966, Cal 363 at page 367 (paragraph) (supra), though at a later stage, the Advocate-General conceded that there can be an extreme case, yet there is a very remote possibility in which the allegations of mala fides against the majority of the members may be proved and in that case, the decision of the Legislature may be tainted and thus liable to be quashed. On the other hand, the Petitioner challenged the correctness of the decision in the aforesaid Full Bench case on, the ground that it was against the decision of their Lordships of the Supreme Court in
In my opinion, the vote in the House of Legislature cannot ever be said to be mala fide. If the House surpasses its constitutional limits, its action will be open to question on we ground of unconstitutionality but even then, it will not described as mala fide.
According to the scheme of the Constitution, the Legislature and the Judiciary have been given places of pride in the administration of the country and the spheres of work in the form of rights and duties of each institution have also been denned in the various provisions of the Constitution. Under Article 194(1), members of the Legislatures have absolute freedom of speech inside the Legislature. Under Article 194(2), they cannot be prosecuted, nor can they be subject to any proceeding in any Court of law in respect of anything said or any vote given in the Legislature or any Committee thereof. If any allegation is allowed to be made in Court and subjected to judicial scrutiny that a particular member or members exercised their vote in the Legislature not freely, fairly and impartially, but on extraneous considerations, the right given under Clause (2) of Article 194 will be bereft of its value and glory. Similarly, in Articles 121 and 211, it has been provided that the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties shall not be discussed in parliament or the Legislature of a State except by a motion for the removal of the Judge in Parliament as provided under Article 121. The Supreme Court in the
If this were not true position, Article 211 would amount to a meaningless declaration and that clearly should have not been the intention of the Constitution.
On the parity of reasoning, if the right to vote exercised by a member in the Legislature becomes a subject-matter of any observation or finding by the Court, may be regarding mot fides, this declaration by the Consumption of the right to vote by the legislators Will become meaningless. Therefore, I am inclined to the view that if true intention of Articles 194(2), 121 and 211 is to be carried out in letter and spirit, the Full Bench in the above-mentioned case has correctly laid down that no mala fides can be attributed to the legislature. The reliance by the Petitioner on Partap, Singh''s case (supra), is misconceived, in that case, mala fides had been alleged against the then Chief Minister of Punjab. The conduct of a Chief Minister as such is not protected under any provision of the Constitution. The same does not hold good of the exalted and prestigeous institution like the, Legislature which has been invested with plenary powers and functions. If exercise of right of vote in the legislature on any matter is vitiated by misconduct which may bring discredit to the august body, it has sufficient powers to take the erring legislator to task and punish him adequately. 430. Thus holding the opinion on the major issues arising in this case as discussed above, I agree with my Lord the Chief Justice that there is no merit in the petition and the same, is dismissed. Harbans Lal, BY THE COURT. 431. In the view held by the majority, we allow this writ petition, hold the resolution of the Haryana Legislative Assembly dated January 8, 1975, expelling the Petitioner, to be unconstitutional, illegal and inoperative, and as a necessary consequence direct the Election Commission of India not to proceed to fill the vacancy supposedly resulting from the action aforesaid. We leave the parties to bear their own costs.
