LEGAL ARCHIVES SERIES FROM THE MEDIA
A.G. NOORANI IN THE FRONTLINE
The Supreme Court ruling in the MPs’ expulsion case is neither surprising nor an exercise of “judicial activism” in the correct meaning of the term.
THERE are two ways of assessing the Supreme Court’s judgment of January 10 on whether a House of the legislature – Parliament or State Legislature – has the power to expel a member from the membership of the House, and, if so, whether it is open to judicial review and on what grounds. The court held (4-1) that it has the power; it is open to judicial review, not on the merits of the case, but only if it has been exercised illegally as distinct from irregularly.
The ruling is, with respect, sound; but neither surprising nor an exercise of “judicial activism” in the correct meaning of the much-abused expression. It is unnecessary to state the facts here. Ten members of the Lok Sabha and one of the Rajya Sabha were exposed by a television channel receiving money for raising questions in the House. Later, another member of the Rajya Sabha was exposed in a similar manner for improper conduct in relation to the Member of Parliament Local Area Development Scheme (MPLADS). Proper inquiries were held by Committees of each House, the MPs were given full opportunity for their defence, and were expelled from their respective Houses.
Sting operations stand vindicated. Also vindicated is one of the finest MPs the country has known, Era Sezhian. His work on the MPLADS, published by the Institute of Social Sciences, New Delhi, exposed the racket that it is. But who cares?
The five-member Bench delivered three judgments. A main one by Chief Justice Y.K. Sabharwal to which Justices K.G. Balakrishnan, now Chief Justice, and D.K. Jain are party; a concurring one by Justice C.K. Thakkar, which mostly cites foreign cases without significantly elaborating on the discourse; and a dissent by Justice R.V. Raveendran, which opined, with respect, erroneously, that expulsion is a “new category of cessation of membership” which is not mentioned in Articles 101 and 102 on the qualifications of members. This view is unsupported by authority or practice anywhere. Justice Sabharwal’s 168-page judgment is a model of verbal excess. The issues were largely concluded by the Supreme Court’s advisory opinion in the Uttar Pradesh Assembly case 40 years ago (President’s Reference No.1 of 1964, AIR 1965 S.C. 745).
In 1958 the Supreme Court had ruled in the case of the Patna daily Searchlight that the privileges of legislatures, elected by the people of India, over-ride the fundamental rights of their masters, the people who elect them. Justice K. Subba Rao delivered a powerful dissent (M.S.M. Sharma vs. S.K. Sinha, AIR 1959 S.C. 395).
In the U.P. case, the Assembly ordered the arrest of two Judges of the High Court for releasing on bail a person it had ordered to be imprisoned for contempt and the advocate who had presented the bail application. The President referred the case to the Supreme Court for its opinion. A Special Bench of seven Judges ruled, by 6-1, that: 1. “The content of Article 194 (3) must ultimately be determined by courts and not by legislatures” [their spurious and novel claim to be judges of their own power was rejected]; 2. The writ jurisdiction of the High Courts under Article 226 is not subject to the privileges; 3. The fundamental right to move the Supreme Court for the enforcement of the fundamental rights, embodied in Article 32, is not subject to the privileges either, it is an “absolute constitutional right”; 4. The guarantee of personal liberty embodied in Article 21 applies when the legislatures exercise their powers in respect of their privileges; and, 5. Article 212(1) exempts from judicial scrutiny only irregularities in legislative proceedings. But “if the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law”.
Unfortunately, the court stopped here. It did not proceed to rule, as it ought to have, that the fundamental rights, particularly the right to free speech [Article 19(1)(a)], prevail over the privileges. It said: “We do not propose to enter into a general discussion as to the applicability of all the fundamental rights to the cases where legislative powers and privileges can be exercised against any individual citizen of this country. We are dealing with this matter on the footing that Article 19(1)(a) [freedom of speech] does not apply and Article 21 [right to personal liberty] does. If a citizen moves this court and complains that his fundamental right under Article 21 had been contravened, it would plainly be the duty of the court to examine the merits of the said contention, and that inevitably raises the question as to whether the personal liberty of the citizen has been taken away according to the procedure established by law.” The court relied on G.K. Reddy vs Mafisul Hasan, AIR 1954 S.C. 636. Reddy, then correspondent of Blitz, was ordered to be arrested by the Speaker of the U.P. Assembly. The Supreme Court exercised jurisdiction.
The court now asked a pertinent question: “Was it the intention of the Constitution to perpetuate the dualism which rudely disturbed public life in England in the seventeenth, eighteenth and nineteenth centuries?”
The Supreme Court pointed out that while the British Parliament originated as a “High Court of Parliament”, the Indian legislature did not, and many privileges had fallen into desuetude. Two points deserve particular note. First, the legislatures’ rules of procedure are “law” and, therefore, subject to fundamental rights. The committees of privileges are creatures of the rules. Their composition and procedure are, therefore, wide open to challenge on the grounds that they do not guarantee fairness and impartiality as Article 21 requires.
Secondly, the court, in 1965, pointed to “the uniform practice which the House of Commons has followed for more than a century past” to file a return before the courts. “It is not disputed that whenever commitment orders passed by the House of Commons are challenged in England before the courts at Westminster, the House invariably makes a return… .” Indian legislatures, however, refuse to do that while claiming the privileges of the Commons. They rely on the Searchlight ruling and flout the U.P. ruling because it was an “advisory opinion”, as if the law it declared was not binding.
In an able study, “Parliamentary Privileges and the Press” by Prof. M.P. Jain, commissioned jointly by the Press Council of India and the Indian Law Institute, the author records: “Since 1965, a new trend has been visible in the legislature – court equation in privilege matters. A view has now come to be held that if any question is raised in a court as regards the legislative privilege, it will itself be a breach of privilege for any member or the Speaker of the House to defend the position of the legislature. Before 1965, invariably in all cases arising in the courts concerning privilege matters, the legislature defended its position before the courts.” This vicious trend was set by the U.P. Assembly’s committee of privileges pronouncing the Supreme Court’s opinion to be wrong. In the present case also the Lok Sabha Speaker did not appear.
This grotesque situation has come about because of the Founding Fathers’ misplaced faith in the commitment of legislators to the rights of citizens. The fence soon began to devour the grass. This is how it happened. Article 105(1) says that subject to the provisions of the Constitution and to the rules of procedure “there shall be freedom of speech in Parliament”. Sub-clause 2 confers immunity on MPs against judicial proceedings in relation to speeches and votes in the House.
Sub-clause 3 is crucial. “In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament, 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.” Note its temporary character – “until so defined” – and the mandate to codify the privileges (“shall be… defined by Parliament” by law).
Members of the Constituent Assembly deeply resented the reference to the British House of Commons in the Constitution of an independent India. On behalf of the Drafting Committee, Sir Alladi Krishnaswami Aiyar assured them: “Only as a temporary measure, the privileges of the House of Commons are made applicable to this House” (emphasis added, throughout).
It was on the faith of this explicit assurance that on May 19, 1949, the Constituent Assembly adopted the provision. Article 194 contains identical provisions for State legislatures. However, on October 16, 1949 the President of the Assembly, Dr. Rajendra Prasad, delivered this warning: “So, it is only a temporary affair. Of course, the Parliament may never legislate on that point and it is therefore for the members to be vigilant.” Little did he reckon with the day in 1958 when the apex court would not only take away all need for vigilance, but also provide them with incentive for aggrandisement by mere inaction.
In 1978 the Supreme Court ruled, in Maneka Gandhi’s case, that when Article 21 says that “no person shall be deprived of his life or personal liberty except according to procedure established by law”, it does not mean any procedure and by any law. It must be a procedure fair and reasonable and the “law” must be one which also satisfies the tests of Article 19. Thus, an action that violates the right to free speech guaranteed by Article 19(1)(a) is also violative of Article 21. The Supreme Court has ruled that in any event Article 21 prevails over the privileges.
The Select Committee on parliamentary privileges set up by the House of Commons reported in December 1967 that “the present procedure for dealing with complaints does not manifestly comply with the ordinary principles of natural justice”. Since we still follow that procedure, it stands condemned under the Maneka Gandhi case ruling. Suffice it to say that the 1978 ruling widens the ambit of the 1965 ruling to extend Article 21 to cover Article 19 also.
We need not go into the cosmetic changes made by the 42nd and 44th amendments to the Constitution. The position is that the law is frozen at the stage it was in Britain on January 26, 1950, in respect of all three – “the powers, privileges and immunities” of each House of the British Parliament.
Therefore, whether expulsion belongs to the realm of parliamentary privilege or not the “power” to expel indubitably belonged to the House of Commons for centuries. Ergo the power or privilege, if you like, also vests in each House of every Indian legislature, Central or State. In the light of the U.P. case, its exercise is open to judicial review on the grounds stated by the six Judges in 1965.
Where was the need for Sabharwal J. to deliver a 168-page judgment travelling as far back as the East India Company Act, 1784? Where also was the need to make generalisations? And irrelevant ones, besides? Read this: “The loose federal structure that India has adopted for itself.” Can India’s federal structure be called a “loose” one by any stretch of imagination – or language?
Long quotations of dubious relevance are matched by inadequate discussion. For instance, Sabharwal ignores the aspect of codification of privileges, to which the President of the Constituent Assembly drew pointed attention on October 16, 1949. The Judge could not have been unaware of the rampant abuse of parliamentary privilege in India relying on the law in the U.K. frozen as in 1950, and that in gross error as well as in wilful neglect of the fact that British law and practice have rendered the law of privileges as of 1950 obsolete in vital respects.
Neither in the Constitution Assembly nor in this judgment, otherwise rich in copious quotes, is there reference to the fact that a draft code of privileges was available in 1949, of which Dr. B.R. Ambedkar was apparently unaware. It was the Bengal Assembly Powers and Privileges Bill, 1939 (Calcutta Gazette, July 27, 1939). On it was based the Karnataka Legislature (Powers, Privileges and Immunities) Bill, 1988 (L.A. Bill No.14 of 1988).
The point is simple as even Chief Justice of India S.R. Das noted in the Searchlight case – if privileges are codified by “law”, that law, like any other, would be subject to fundamental rights. The Searchlight case, decided in gross error, perpetrated the myth that since the privileges of the House of Commons were not subject to curbs by a written Constitution neither are those of our legislatures. The United Kingdom has adopted the Human Rights Act. Australia, on whose Constitution Article 105 is based, has codified privileges. Sabharwal ranges far and wide, but his travels do not take him anywhere near the spot where citizen’s rights are imperilled.
The Supreme Court has no power to order the government to legislate; none whatever. Its rulings in the Hawala case (1996) and on police reforms (2006) are palpably wrong. But it is not only a right, but a duty on the part of the courts to point to anomalies and recommend legislation.
One can view the judgment in the expulsion case as a sound one, however verbose and long-winded. One cannot but regret that the court missed a fine opportunity of drawing attention to an anomaly – the fence eating the grass – and suggesting codification.
The judgment would not have suffered but rather gained in quality if it had been pruned. Judgments are not theses but judicial pronouncements on specific issues for the guidance of all. There is not one journal in India of the quality and authority of the Law Quarterly Review to keep vigil on judicial excesses, in language and content. Even Law Lords dread its censure.
That said, the judgment does cite cases that are apposite and enlightening. So also Justice Sabharwal’s pointed reference to the fact that in 1958 and 1965 the court had taken a narrow, literalist view of Article 21. From 1978 onwards it began to expand its content. The latest in the series is Ashok Kumar Gupta vs. State of U.P. [(1997) 5 SCC 201]. The Chief Justice of India rightly holds:
“The enforceability of Article 21 in relation to the manner of exercise of parliamentary privilege, as affirmed in the cases of Pandit Sharma and U.P. Assembly, has to be understood in light of the expanded scope of the said fundamental right interpreted as above. It is to be remembered that the plenitude of powers possessed by the Parliament under the written Constitution is subject to legislative competence and restrictions of fundamental rights and that in case a member’s personal liberty was threatened by imprisonment of committal in execution of Parliamentary privilege, Article 21 would be attracted. If it were so, we are unable to fathom any reason why the general proposition that fundamental rights cannot be invoked in matters concerning parliamentary privileges should be accepted.”
He had only to proceed further and point out the obvious – “in the light of the expanded scope of” Article 21, other fundamental rights are also applicable if privileges are invoked; for example, Article 19(1)(a) guaranteeing freedom of speech. That mere statement of the obvious would have struck a powerful blow for the citizen’s rights. But the otherwise wordy judgment halted there; a failure of proper “judicial activism”. All that remains is for the Supreme Court to rule specifically – what it omitted to rule in 1965 and 2006 – that the fundamental rights prevail over the privileges; specifically the fundamental right to freedom of speech.