OPEN FORUM

New Delhi, 2 March 2006

Cash For Query Issue

PARLIAMENT AND THE COURTS

By Prof. Shashi Kumar Jha

The determined way in which the Speaker and Parliament acted on the question of expulsion of 11 MPs for receiving cash for raising questions, has restored the sanctity of Parliament, as well as reposed the faith of the People in the Parliamentary system.

The Constitution of India is quite clear about any sovereignty of Parliament in conducting its affairs, without interference from the courts or any outside body, within the limits assigned by it.  Article 122(2) clearly stipulates: “No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business or for maintaining order in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers”.

Parliament’s responsibility to discipline its members was underlined by the Supreme Court’s decision in the Jharkhand Mukti Morcha MPs bribery case in which it ruled that MPs who take bribes for any speech or vote in Parliament shall be immune from prosecution in the courts, and the only remedy available against such corruption lies with Parliament itself.  But strange as it may seem, the exercise of this power by Parliament has resulted in a lot of breast-beating, loud accusation, lengthy court battles and so on.

It may be noted that under the Constitution, each House of the legislature is the sole judge of the lawfulness of its own proceedings.  Art 122 (1) with regard to Parliament and 212(1) with regard to the State legislatures clearly stipulates that the validity of any proceeding in Parliament or legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.

The Supreme Court, therefore, held in the Searchlight case that the validity of proceedings inside legislature could not be called in question on the allegation that the procedure laid down by the law had not been strictly observed. No court could go into those questions, which were within the special jurisdiction of the legislature itself which had the power to conduct its own business.

In the UK, a British court while answering to Braudlaugh’s petition observed: Parliament like the judiciary, is quite independent as it has exclusive jurisdiction over its own proceedings and the decision of Parliament on this score is also not subject to appeal”.

Articles 105 and 194 of the Constitution deal with the powers, privileges and immunities of the legislature of the Union and the States respectively.  These Articles not only discuss the privileges of the legislature and legislators but also have empowered them to enforce attendance of persons or punish them for contempt of the House. The privileges also restrain the members from doing something which amount to an abuse of their position and the dignity of the House.

Parliament as well as the State Assemblies enjoy the right to control and regulate their proceedings and also to decide any matter arising within their four walls. The House is fully empowered to frame its own rules and may depart and deviate from them as its own discretion.  The courts are barred from interfering either directly or indirectly however.  Erroneous this interpretation may be.  In Braudlaugh’s case, a British court observed: “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”.

In extremely serious cases of indiscipline the House has every right to punish its members who have offended the dignity of the House, violated Parliamentary norms and democratic ethics through the Speaker. In 1951, H.G. Mudgal was expelled from the Lok Sabha for his clandestine dealing with the Bombay Bullion Association, which included canvassing support and raising the matter regarding the Bullion Association in the Lok Sabha on receipt of financial and business advantages. On September 25, 1951 the House observed: “The conduct of Sri Mudgal is derogatory to the dignity of the House and inconsistent with the standard, which Parliament is entitled to expect from its members…”

The cash for questions issue became a matter of wide public debate in John Major’s tenure as the Prime Minister in England.  In 1994, Neil Hamilton, a member of John Major’s Cabinet had to resign in the wake of a report in ‘The Guardian’ that he and another member of Parliament (Mr. Smith) accepted payment for tabling Parliamentary questions.  While Smith admitted the allegation, Neil Hamilton filed a case for libel against ‘The Guardian’.  The court stayed the proceedings acting on past precedent. Later on, Neil Hamilton withdrew the suit and faced an investigation by the Parliamentary Commissioner for Standards.

Under Article 1, Section 5 (2) of the Constitution of the United States, the House has the power to punish its members for their unruly behaviour and with the concurrence of two-thirds can expel them.  Each House of the Congress has the sole authority to determine what conduct on the part of a member is inconsistent with the trust and confidence reposed in him by the public, and the court will not interfere with such authority.

In the expulsion of the 11 MPs belonging to both the Houses of Parliament, the principles of natural justice have been observed and followed.  The Speaker of the Lok Sabha and the Chairman of the Rajya Sabha, first obtained the necessary political consensus to set up a special committee to make an assessment of the veracity of the allegations and submit report within a timeframe.  The expelled MPs were given a chance to state their case before the Pawan Bansal Committee, which went into the charges. On the basis of the report of the Committee both the Houses recommended expulsion of their members.

The contention that the case should have been referred to the Privileges Committee of the House and not to the Special Committee of the Lok Sabha or the Ethics Committee of the Rajya Sabha carries little meaning. Any committee of the House – regular or ad-hoc, has the same status. Ultimately it is for the House to take a view on its (Committee’s) report.  In 1951, H.G. Mudgal was expelled from the Lok Sabha after a Special Committee of the House reported that his conduct of accepting money for favour in Parliament was derogatory to the dignity of the House.

Speaking on that occasion, Speaker Malvankar made a point regarding the expulsion of M.G. Mudgal on the report of the Special Committee which is quite relevant in the present context.  He said, “Even though there is a Committee of Privileges constituted under the rules, yet it is within the power of the House to constitute other Special Committees if there are any special circumstances and enquiries to be made.  There is nothing inconsistent in that”.  This has also been the practice in the House of Commons to constitute a committee and the procedure of making a motion, is the procedure that is usually adopted by the House, even though there is a Committee of Privileges.

It is high time that the privileges granted to the legislators be defined and codified. The feeling that the codification would lead to curtailment of privileges is untenable as it is irrational and misconceived.  After all, the Constitution provides certain privileges and immunities to the President and the Governors under Article 361 and this has never created any controversy.

Now, when the Supreme Court has called for all the documents from the Delhi High Court, to go into the details, it is expected to display judicial statesmanship by not allowing either any Constitutional stand-off or curtail the well-established power of Parliament to expel corrupt and non-deserving members of the Houses.---INFA

 (Copyright, India News and Feature Alliances)