Hon’ble Presiding Officers:
I have great pleasure in welcoming you to this Emergent Conference of Presiding Officers of Legislative Bodies in India. I am extremely thankful to all of you for having made it possible to attend this Conference at very short notice.
As you may be aware, this Conference has been called in the wake of the judicial proceedings initiated by some former members of Parliament, who were expelled from the membership of the House due to acts of improper conduct of accepting money for asking questions in the House. Taking cognizance of the expelled members’ plea, the Delhi High Court and the Hon’ble Supreme Court have issued notices inter alia against the Speaker of Lok Sabha and the Lok Sabha Secretariat. After considering all aspects, it was decided that I should not accept any such notice, far less respond to the same as I believe that there are no constitutional provisions under which a notice could be issued by the courts to the Speaker on matters involving voting by members and matters of discipline and as such strictly pertaining to the internal affairs of the House which are its own exclusive domain as per the Constitution. As the Speaker of Lok Sabha and as the Chairman of the Conference of Presiding Officers of Legislative Bodies, I considered it my bounden duty to call this Emergent Conference as we are faced with a situation which seems to detract from the constitutional position and rights of the House and its Members and the mandate of harmony between the Judiciary and the Legislature, the Speaker and the members of the Legislature.
Let me make it absolutely clear that it is farthest from our mind to have any confrontation with the Judiciary. The Legislatures have always recognized and respected the supremacy of the Judiciary in its assigned sphere. The Judiciary is an institution integral to our body politic. But, at the same time, the constitutional rights of the Legislature, the Speaker and the members of the Legislature are entitled to be respected by the other organs in a system governed by our Constitution. Our endeavour is to maintain the constitutional balance which is essential for the harmonious co-existence between the different organs of the government and for the sustenance of democracy in the country.
It is not necessary for me to recapitulate the constitutional provisions, of which you are fully aware. I have briefly referred to the same in my introductory submissions at the Leaders’ Meeting held on 20 January 2006, a copy of which you will please find in the Background Paper. It has to be reiterated that all the constitutional provisions symbolize the supremacy of the Legislature and make it the master of its own privileges and procedures.
As a natural corollary to these provisions, there can be no authority other than the Legislature itself to look into the conduct of its members in the discharge of their duties. In the case of misconduct or contempt committed by its members, it is also well established that the House can impose punishments such as admonition, reprimand, withdrawal from the House, suspension from the service of the House, imprisonment and expulsion from the House.
By and large, as per the constitutional mandate, the courts in India have exercised restraint and recognised the immunity of parliamentary proceedings from being called in question in the courts of law. Way back in 1954, in the case of Raj Narain Singh v. Atmaram Govind Kher, the Allahabad High Court had held:
…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.
…this Court has no jurisdiction to issue a writ, direction or order relating to a matter which affected the internal affairs of the House.
In the M.S.M. Sharma Case of 1960, the Apex Court had categorically upheld the sovereignty of the Legislature in matters pertaining to the power to conduct its own business. The Supreme Court held:
… The validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. No Court can go into the questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business.
The Supreme Court held in the Tej Kiran v. N. Sanjiva Reddy Case (AIR 1970 SC 1573) that it is the essence of parliamentary system of government that people’s representatives should be free to express themselves without fear of legal consequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. The courts have no say in the matter and should really have none. In the JMM Bribery Case, the Supreme Court did not take any action against the concerned members citing the immunity/protection that members enjoy under article 105(2) of the Constitution and observing that it is for the House to take action, if thought fit. Incidentally, a difference of opinion between two High Courts, cannot distract from the rights, authority and the sole jurisdiction of the Legislatures in a matter.
Under Articles 122 and 212 of the Constitution, the validity of any proceedings of Legislature cannot be questioned on the ground of alleged irregularity of procedure. On this aspect also, in the case of K. Anbazhagan v. Secretary, Tamil Nadu Legislative Assembly (AIR 1988 Madras 275), the Madras High Court held:
… The Resolution of expulsion is not open to challenge on the ground that the concerned members were not heard as such a challenge would be a challenge on the ground of failure to follow a procedure which would amount to an ‘irregularity’ and not an ‘illegality’ having regard to provisions of article 212 of the Constitution of India. …
There can be no authority other than the Parliament itself to look into the conduct of the Members in the discharge of their duties and in the conduct of the business of the House. Therefore, no Court can go into this question. Order of expulsion is one of the powers, which the Parliament can surely impose on any erring Member. In any event, the Members have not been expelled by any action of the Speaker but by the reason of the votes cast or decision taken by the Hon. Members of Parliament individually and if any action is resorted to question the authority of Parliament in doing what it did, to my mind, will be clearly violative of article 105 of the Constitution of India.
One may also take note of Rule 389 of the Rules of Procedure and Conduct of Business in Lok Sabha which provides that all matters not specifically provided for in the rules and all questions relating to the detailed working of the rules shall be regulated in such manner as the Speaker may, from time to time, direct.
In the instant case, I had the privilege of discussing the matter of the issue of notice by the Courts to the Speaker and the Lok Sabha Secretariat with some of the most eminent lawyers of the country, including Shri Fali S. Nariman, Shri T.R. Andhyarujina, Shri Shanti Bhushan, Justice Sachar, Shri Rajeev Dhawan and Shri Kapil Sibal. Their considered opinion has been that I should not appear before any court of law even if any notice is issued. Dr. L.M. Singhvi, another distinguished lawyer, has also stated that the Speaker was well within his limit not to reply to the Supreme Court notice and that the courts could not intervene directly or indirectly in Parliament matters. Another eminent constitutional lawyer, Shri P.P. Rao, has stated that each House has exclusive jurisdiction over its own internal proceedings and has the right to commit and punish members for contempt and that courts do not interfere with the decision of the House concerning its recognized privileges, which include the right to expel members. Shri Fali S. Nariman has said and I quote:
… That the Speaker is made a party in a private litigation concerning something that happened within the four walls of the House is a matter for the petitioner who makes the petition to the court. He can implead anybody; he can implead the President. But the fact that the court permits such a procedure with the name of the Speaker being there is, in my opinion, a matter on which there is strong exception to be taken, for this reason.
Another leading lawyer, Shri T.R. Andhyarujina, has said, and I quote:
… There is no doubt that every House of Legislature should remain responsible for disciplining its own members. As recently as 1997, the U.K. Joint Select Committee, with Lord Nicholls of Birkenhead as its Chairman, reported this as axiomatic. 'It is inconceivable,' it observed, 'that power to suspend or expel a member of either House should be exercisable by the Courts or some other outside body. No suggestion has been made to the Joint Committee that the Commons should lose its powers of suspension or expulsion, which are widely seen as essential for internal discipline.' In the UK expulsion of a member of the Commons creates a vacancy and his or her term comes to an end. The position is the same in India.
I have been expressing my humble views that our Constitution does not contemplate the existence of a super organ or an organ having overriding authority over the others. What is essential is to have a harmonious relationship between the different organs and also respect for each other. Defending the rights of the Parliament, an All-Party Meeting, which I convened on 20 January 2006, in the wake of the developments in the instant case, unanimously felt that the Lok Sabha Speaker should neither accept the Supreme Court’s notice nor appear before it on the issue of the expulsion of MPs. A summary of the proceedings of the said meeting is available along with the Background Paper.
It appears that the hon. Supreme Court has decided to look into the question of Parliament’s right to expel its members as a constitutional issue. With all respect to the hon. Court, I feel that it would have been proper if the Court had first decided as to whether the Court itself had the constitutional authority to look into the question and whether it had any right to issue notice to the Speaker of Lok Sabha on a matter clearly indicated by the Constitution as the exclusive domain of the Legislature. Until that is decided, the question of determination of the existence of the right of expulsion and for that purpose giving a notice to the Speaker are, if I may say so, not called for.
I submit that in our scheme of governance, such judicial proceedings are not maintainable as they lack the sanction of the Constitution. As the custodian of the powers, privileges and immunities of the Lok Sabha and of its Speaker and members I cannot assent to make them a subject matter of judicial scrutiny, contrary to the constitutional provisions. It will seriously impair the prestige and dignity of the Legislature and will detract from the constitutional balance, undermining the principle of Separation of Powers, one of the basic features of our Constitution, as interpreted by the Supreme Court itself.
Let me hasten to add that there is no question of adopting an attitude of confrontation with the Court. The issue is of constitutional rights, propriety, and obligations of the Legislature, the Speaker and the members of the Legislature which can not be compromised. It is worth emphasizing the observation of Dr. Alladi Krishnaswamy Ayyar, one of the founding fathers of the Constitution, in the Constituent Assembly that the doctrine of judicial independence is not to enable the Judiciary to function as a kind of ‘super Legislature’ or ‘super Executive’.
Hon’ble Presiding Officers, it is the collective responsibility of all institutions of governance and of our democracy, including the civil society and the media, to ensure that the harmonious relationship between the different organs in the scheme of governance in our country, as thoughtfully provided in our Constitution, is scrupulously adhered to and that every organ of the State discharges its responsibilities effectively, within the ambit of the Constitution only. As you would recall, we have deliberated the issue of Legislature-Judiciary relationship in our Conferences on several occasions. The very fact that, as a body, we have repeatedly deliberated on this sensitive issue is a pointer to the seriousness, sincerity and constitutional propriety with which we look at the issues involved. We have consistently asserted that we should maintain the constitutional balance and harmonious relationship between these two vital pillars of our parliamentary polity at all times. I am sure we will have meaningful discussions once again at this Emergent Conference and I seek your views on the matter.