Andhra HC (Pre-Telangana)
Sri Komati Reddy Venkat Reddy And ... vs The State Of Telangana, Law And ... on 17 April, 2018
Author: B. Siva Sankara Rao
Bench: B. Siva Sankara Rao
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
WRIT PETITION No.8812 of 2018
17-04-2018
Sri Komati Reddy Venkat Reddy and another Petitioners
The State of Telangana, Law and Legislature Department, Secretariat Buildings, Hyderabad and 2 others.Respondents
Counsel for the petitioners:Sri Ravi Shankar Jandhyala
Counsel for the respondents : learned Additional Advocate
General for respondent No.1
Sri Avinash Desai for R.3
<GIST:
>HEAD NOTE:
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29. AIR 1973 SC 1461
30. C. Herman Pritchett, American Constitution-136 (1959); 8 Coke Reports I I4,
T.F.T. Plucknett, "Bonhom's case and Judicial-review" 40-Harry-L Rev 30 (1926);
S.F. Thorne, "Dr. Bonham's case" 54 L C Rer 543 (1938); See also, Vijayalaxmi
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60. AIR 1994 SC 1673
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64. AIR 1986 Ker 122.
65. AIR 1986 Ker 122
66. AIR 1977 SC 1361
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1957) in Chapter III: General View of the Privilege of Parliament' at p.42]
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73. 1992(2)PLJR 406.
74. (2012) 3 SCC 346
75. 1976(1)SCR 906
HONBLE DR. JUSTICE B.SIVA SANKARA RAO
WRIT PETITION No.8812 of 2018
ORDER:
This writ petition is filed by the two petitioners viz., (1) Komati Reddy Venkat Reddy and (2) S.A.Sampath Kumar against the three respondents viz., (1) the State of Telangana, Law and Legislature Department, Hyderabad, (2) the Legislative Secretariat of the State of Telangana rep. by its Secretary, Legislative Assembly Buildings and (3) The Election Commission of India rep. by the Chief Election Commissioner.
2. The prayer in the writ petition reads as follows:
to issue a writ, order or direction, more particularly one in the nature of Writ of Mandamus declaring the action of the respondent No.2 in expelling the petitioners 1 and 2 from the service of the House by a resolution dated 13.03.2018 and issuing the Extra-ordinary Gazette in C.No.26/Legn/2018 dated.13.03.2018, notifying Vacancy of no.92-Nalgonda Assembly Constituency, Telangana State for 1st petitioner; and C.No.27/Legn/2018 dated.13.03.2018 notifying Vacancy of no.80-Alampur (SC) Assembly Constituency, Telangana State for 2nd petitioner as illegal, arbitrary, without any source of power and jurisdiction and in utter violation of principles of natural justice and in derogation of Rule 17 of the Procedure and Conduct of Business in the Telangana Legislative Assembly and ultra vires the Constitutional Provisions in Article 175 & 176 of the Constitution of India and consequentially suspend the Extra-ordinary Gazette in C.No.26/Legn/2018 dated 13.03.2018 notifying Vacancy of no.92-Nalgonda Assembly Constituency, Telangana State for 1st petitioner and C.No.27/Legn/2018 dated 13.03.2018 notifying Vacancy of no.80-
Alampur (SC) Assembly Constituency, Telangana State for the second petitioner issued by the 2nd respondent and consequentially direct the 3rd respondent not to issue notification/schedule or hold bye-elections for filling the seats to the 92-Nalgonda Assembly Constituency and 80-Alampur Assembly Constituency of The State of Telangana pursuant to the vacancy announced by the 2nd respondent pending the writ petition and consequentially direct the 2nd respondent to produce the video footage before this Honble Court that establishes the injury caused by throwing of the ear phone on the face of the Chairman of the Legislative Council by the 1st petitioner on 12.03.2018 during Pre Budget Speech of the Honble Governor and pass such other order or orders as this Honble Court deem fit and proper in the circumstances of the case.
3. It is from the supporting affidavit of the 1st petitioner supra further to the above stated on behalf of both the petitioners, that the petitioners who are members of the Indian National Congress Legislature Party in the Telangana Legislative Assembly, having been elected in 2014 are fighting relentlessly against the anti people policies and the practice of the ruling Telangana Rashtra Samithi Government and from their mounting pressure on the Government through debates, open challenges and struggles; they have become victims of personal vendetta of the Honble Chief Minister of the State of Telangana and his associates and a result of which they have become target for the Government of Telangana. Unable to bear with the petitioners on slot on the anti people policies and practices of the present Government, the Honble Chief Minister of Telangana, openly proclaimed that the petitioners will not be allowed to attend the house in future.
4. While the matter stood thus, before commencement of the Budget session for the year 2018-19 for the Telangana State, as a constitutional mandate, on 12.03.2018 the Honble Governor has addressed the members of Legislative Assembly as well as Legislative Council of Telangana Legislature. To the surprise of the petitioners, on 13.03.2018, the Minister for Legislature has moved a resolution to expel the petitioners for interrupting the Governors address on the previous day i.e., 12.03.2018 and a motion has been carried out and the Extra- ordinary Gazette in C.Nos.26 & 27/Legn/2018 dated.13.03.2018 notifying the respective Vacancies of Nos.92 & 80 for Nalgonda and Alampur (SC) Assembly Constituency, Telangana State have been issued.
5. By referring to and reproduced the Articles 175, 176 & 208 of the Constitution of India, the Rules 17, 17-A, 340 of the Rules framed for the purpose of Governors address and messages to the assembly under Chapter V of the Rules of Procedure and Conduct of Business in the Telangana Legislative Assembly and some extracts stated relevant to the issue, from the Book of conventions, procedures and practices of Parliament by Subash C. Kashyap, Parliamentary procedure 3rd Edition and Mays Parliamentary practice, stated that:
The expression commencement of every session appears to be deliberate, because it is only at this stage that the session can be said to commence beginning with the address of the Governor under Article 176(1). It may also be noted that the first meeting of the Assembly refer to Article 172 commences from this date, and the duration of five years is to be counted from this meaning. A session connotes the sitting together of the Legislative body for the transaction of business. The Legislature cannot be said to have met until the preliminaries have been gone through. Therefore, at the time of address by Governor in a joint sitting, it has to be presumed that no transaction of business takes place to apply conduct of business rules as the Legislature cannot be said to have met until the preliminaries have been gone through.
6. It is further stated from Para 23 onwards of the affidavit, that neither on 12.03.2018 nor on 13.03.2018 the respondents put them on notice about the alleged obstruction or interruption or in-dignified behaviour at the time of the Governors Address nor the respondents have given them any notice/opportunity to explain in that regard. As per the recommendation of the Minister for Legislative Affairs, the other parties have walked out during the Governors Address which should also be treated as lack of decency or decorum and obstruction or interruption, but, the respondents have singled them out, as the Chief Minister of the State has a personal vendetta against them. It is further stated the Treasury Benches keep on thumping on the benches while the Governor reads out the message drafted and given by the Cabinet of the Government. If walking out when the Governor addressing the House is treated to be interruption, thumping on the benches and praising the Governor with loud voice or the Chief Minister or the Government by the Treasury Benches would also amount to indignity and obstruction. However, the Treasury Benches are protected and they as main opposition party has been singled out and targeted, which is a clear example of equality before Law and equal protection under Law is lacking inside the Law making House.
7. It is further stated that even a procedural facet can defeat a substantive right, the best illustration is of-course, the rule of audi alterm partem which is essentially a procedural aspect but of such a fundamental importance that itself embodies a basic substantive right, the Rules of Procedure of Conduct of Business are subordinate legislation and cannot be alleviated to the Constitutional provisions, for the rules are directory in nature. The respondents intentionally picked and chosen them to throw them out of Assembly as their presence seem to be intimidating the leader who is inimically disposed against them.
8. It is further stated that the rules framed under 208 are for the conduct of the business of the house i.e., inside the House and the Governors Address is in no way connected with the House proceedings as the Business of the House commences after the address of the Governor. Therefore, the order of the 2nd respondent should be treated as nonest even within the parameters of Judicial- review laid down in Kihoto Hollohan V Zachilihu (Constitution Bench) and Jagjit Singh v. State of Haryana of the decision impugned is liable to be set aside in exercise of the power of the Judicial-review.
9. It is further stated that the total allegation is that 1st petitioner threw earphone at Chairman and another person belong to Congress Party has repeatedly shouted slogans during the Governors Address and thereby interrupted the Address. Having reproduced Article 194, stated from Para 30 onwards of the affidavit that:
30. A perusal of the Article 194 and the law laid down by Supreme Court would indicate that the legislatures power to punish a member by suspending or expelling him or her from the legislature is derived from the powers and privileges conferred on the legislatures by the Constitution. Article 194 (3) in the case of State legislatures and Article 105(3) in case of Parliament in effect give them the powers, privileges, and immunities that the British House of Commons enjoyed at the commencement of the Constitution in 1950, until they are defined by these legislatures. As no legislature in India has defined its powers, privileges, and immunities so far, the question of the existence of any privilege, power, or immunity has to be considered by asking whether the House of Commons had any particular power, privilege, and immunity at the commencement of the Constitution in 1950. This requires historically going back many centuries. The necessity for any superior legislature to discipline its own members is self-evident.
The House of Common has the right to regulate its own affairs, including the power to discipline its own members for misconduct. Further the House has the power to punish anyone, whether a member or not, for behaviour interfering substantially with the proper conduct of business. Such interference is known as contempt of Parliament. Collectively this is known as the penal jurisdiction of the House. The sanctions available are reprimand, imprisonment for the rest of the session, and suspension for any period up to the remainder of the Parliament and expulsion.
31. It is further submitted that the 1st petitioner alleged to have thrown his ear phone at the Governor, while the Governor delivering his pre-budget speech and that hit the Honble Chairman of the Legislative Council of Telangana. However, the Chairman, Governor and Speaker stayed on the dais and shared lighter moments and thereafter, the Chairman and the Speaker accompanies the Honble Governor till his car to see him off. Thereafter, the Honble Chairman alleged to have complained pain on the left eye, but, by the evening a bandage has been put to his right eye. This throws any amount of doubt and evil design of the Government. Therefore, the video footage showing that the ear phone that has been thrown by the 1st petitioner hit the Chairman on the eye is a crucial document to be examined, but, however, the same has not been released till today. As per the convention when the House is not in order, the cameras will be only on the face of the Speaker or the Chairman of the respective Houses, but, curiously the video has not been furnished to me or to the 2nd petitioner or to any other persons, but, expelled us on the said ground which amounts to violation of principles of natural justice.
32. Narrating all these issues and the requirement of showing the crucial video footage to prove and establish the factum of happening, we have addressed a letter to the Honble Speaker to provide the video footage with bulletin, and proceedings that took place at 10.00 am onwards on 13.03.2018 wherein the legislative affairs Minister read over the resolution for expulsion of the 1st and 2nd petitioners. Therefore, this Honble Court may be pleased to direct the 2nd respondent to produce the video footage that establishes the hit on the face of the Chairman of the Legislative Council on 12.03.2018 and pass such other order or orders as this Honble Court deem fit and proper in the circumstances of the case.
33. In this case, on 13.03.2018, the petitioners have not interfered with any proceedings of the House when the business is transacted and directly expelling the petitioners without any debate or discussion and affording any opportunity is wholly illegal, unsustainable and violative of Article 14 and 19(1)(a) of the Constitution of India and therefore, Article 194 has no application and therefore, the impugned proceeding is liable to be set aside. Hence this Writ Petition.
34. The petitioners have no other alternative or efficacious remedy except to approach this Honble Court under Article 226 of the Constitution of India.
35. The petitioners have not filed any other suit or proceedings before any other court of authority.
10. It is also prayed in support of the writ petition affidavit and pending disposal of the main prayer supra, for three interim relief/directions viz., (a) to direct the 3rd respondent not to issue notification/schedule or hold bye-elections for filling the seats to the 92-Nalgonda Assembly Constituency and 80-Alampur Assembly Constituency of The State of Telangana pursuant to the vacancy announced by the 2nd respondent, (b) to suspend Extra-ordinary Gazette in C.No.26/ Legn/2018 dated.13.03.2018 notifying Vacancy of no.92-Nalgonda Assembly Constituency, Telangana State for 1st petitioner and C.No.27/Legn/2018 dated.13.03.2018 notifying Vacancy of no.80-Alampur (SC) Assembly Constituency, Telangana State for the 2nd petitioner issued by the 2nd respondent and (c) to direct the 2nd respondent to produce the video footage before this Honble Court that establishes the injury caused by throwing of the ear phone on the face of the Chairman of the Legislative Council by the 1st petitioner on 12.03.2018 i.e., during Pre Budget Speech of the Honble Governor and to pass such other order or orders as this Honble Court deem fit and proper in the circumstances of the case.
11. Along with the writ petition, the documents filed are Ex.P1- copy of Telangana Gazette (C.No.26 & 27supra respectively) and notice given by the petitioners dated 14.03.2018 to the Honble Speaker of the Telangana Legislative Assembly acknowledged on even date disputing the incident and questioning the expulsion and non-providing of opportunity and non-supply of documents and violation of principles of natural justice and the procedure and provisions with a request to supply the video footage and all documents of the two dates i.e., 12 & 13.03.2018 (for more clarity those are marked as Ex.P1 (a),(b)&(c), Ex.P2-copy of practice and procedure of Parliament by MM Kaul and SL Shakdher-Chapter X-Presidents address, Messages and Communications to the House (pages 196 to 210), Ex.P3-copy of practice and procedure of Parliament by MM Kaul and SL Shakdher-Chapter XVIII-Arrangement of Business and List of Business (pages 407 to 432), Ex.P4-copy of practice and procedure of Parliament by Subash C. Kashyap-Chapter VIII- President & Parliament address, Messages and Communications (page
115), Ex.P5-copy of practice and procedure of Parliament by Subash C. Kashyap-Chapter IX-Business of the House (page 134), Ex.P6-copy of the Rules of procedure and conduct of business in Telangana Legislative Assembly framed under Article 208(1) of the Constitution of India- Chapter V-Governors Address and messages to Assembly (pages 9 to 11); Rule 2 (pages 1 to 3), Rule 17 & 17-A (page 9), Rule 340 of the Rules as to withdrawal and suspension of members (page 125).
II. The counter affidavit of the 1st respondent reads that:
I, V.Niranjan Rao S/o. Sri Tirumala Rao, aged about 58 years, working as Secretary to Government, Legal Affairs, Legislative Affairs and Justice, Law Department, Telangana Secretariat, do hereby solemnly and sincerely affirm and state on oath as follows:
1. It is submitted that I am the respondent No.1 herein in the above writ petition and as such, I am well acquainted with the facts of the case and competent to swear this affidavit.
2. It is submitted that the present writ petition is filed against the action of the respondent No.2 in expelling the petitioners herein from the service of the House by a resolution dated 13.03.2018 and issuing the Extra-ordinary Gazette in C.No.26/Legn/2018 dated 13.03.2018, notifying vacancy of No.92-Nalgonda Assembly Constituency, Telangana State and C.No.27/Legn/2018 dated 13.03.2018 notifying Vacancy of No.80-Alampur (SC) Assembly Constituency, Telangana State and seeking directions against the 3rd respondent not to issue notification/schedule or hold bye-
elections for filling the seats to the 92-Nalgonda Assembly Constituency and 80-Alampur Assembly constituency of the State of Telangana pursuant to the vacancy announced by respondent No.2 and to direct the respondent No.2 to produce the video footage that establishes the injury caused by throwing the ear phone on the face of the Chairman of the Legislative Council by the petitioner No.1 on 12.03.2018 during the pre-budget speech of the Honble Governor.
3. It is humbly submitted that going by the averments of the petitioners it is clear that the petitioners have not ventilated any grievance against this respondent nor sought any relief. It appears under a misconception the petitioners have impleaded me as respondent No.1. In the entire issue highlighted by the petitioners in the instant writ petition, no proceeding has been issued nor there is any likelihood of the involvement of this respondent in future.
Under the above circumstances, the Honble court may be pleased to dismiss the instant writ petition as against this respondent with costs and pass such other order or orders as this Honble Court may deem fit and proper.
III. The counter affidavit of the 3rd respondent reads that:
I, M.Satyavani D/o. M.Veerendranath, aged about 50 years, Occ:
Deputy Chief Electoral Officer, GA (ELECTIONS) Dept., Telangana State Secretariat, do hereby solemnly and sincerely affirm and state on oath as follows:
1. I am the authorized representative of the respondent No.3 and as such, I am well acquainted with the facts of the case and competent to swear this affidavit.
2. It is submitted that the present writ petition has been filed challenging the action of the respondent No.2 in expelling the petitioners 1 & 2 from the service of the House by a resolution dated 13.03.2018 and issuing the Extra-ordinary Gazette in C.No.26/Legn/2018 dated 13.03.2018, notifying vacancy of No.92-
Nalgonda Assembly Constituency, Telangana State and C.No.27/Legn/2018 dated 13.03.2018 notifying Vacancy of No.80- Alampur (SC) Assembly Constituency, Telangana State as illegal, arbitrary, without any source of power and jurisdiction and in the utter violation of principles of natural justice and in derogation of Rule 17 of the procedure and conduct of business in the Telangana legislative Assembly and ultra vires of the Constitutional provisions in Articles 175 & 176 of the constitution of India.
3. It is submitted that the allegations contained in the Paragraph Nos.3 to 33 of the writ petition are not against the answering respondent and therefore they are not being traversed by the answering respondent.
4. It is the submitted that under Section 151A of the Representation of Peoples Act, 1951, it is the duty of the answering respondent to conduct a bye-election for filling any vacancy referred to under Sections 147, 149 & 150 within a period of six months from the date of occurrence of the vacancy.
5. It is submitted that this Honble Court vide its order dated 19.03.2018 directed the answering respondent not to take any further steps subsequent to the notification of vacancy for a period of six weeks from 19.03.2018.
6. It is submitted that in compliance of the orders of this Honble Court answering respondent has not taken, so far, any step to conduct the bye-election.
In view of the above, it is humbly submitted that this Honble Court may be pleased to dismiss the instant writ petition as against the respondent No.3 and pass such other order or orders as this Honble Court may deem fit and proper in the circumstances of the case.
IV. The additional affidavit (reply) averments of the 1st petitioner on behalf of the petitioners in nutshell are that:
1. As per the media reports (filed as material documents), the petitioners were expelled for causing injury and another 20 Members of Legislative Assembly and members of Legislative Council were suspended for alleged obstructing and disturbing the pre-budget speech of the Governor. As per the rules, regulations, conventions, practices and procedures of the Legislative House, there will be an agenda for the days business of the House, followed by business advisory committee meeting. However, the business for the 13.03.2018 from 10 a.m./1st day of the 9th session (which is Ex.P8) clearly indicates that there is only a list of starred questions circulated separately). However, the Minister for Legislative Affairs at 10 a.m. on 13.03.2018 stood up and directly recommended for expulsion of 2 members and suspension of 11 members and the Speaker immediately accepted and expelled both the petitioners and suspended the others without there being any deliberation, discussion, debate or giving reasonable opportunity to explain their version before expelling them. When they requested the Chair saying that it is illegal and against the procedures and practices and rules and regulations, the Honble Speaker has asked them to leave the House saying they were expelled already and directed the Martial to remove them from the house without giving any audience even after expulsion. The Minister for legislative affairs clearly stated that the petitioners are expelled and therefore they are no more members of the House and hence no audience will be given. This is not only against the conventions and practices but also goes against the rules and regulations which contemplate that one member has to move a motion for expulsion and the member against whom the motion has been moved will be asked to talk/explain and after the explanation is given by the member against whom the motion is moved, if not satisfied, the mood of the House will be verified by the Speaker by giving opportunity to every floor leader of each and every political party. If all the floor leaders opine that the member against whom the motion is moved is liable for suspension, the same will be carried in accordance with the mood of the House as per Rule 340. Expulsion is the harshest punishment against a member as it results in vacancy of a seat and the constituency will be without an MLA, therefore, the rules do not contain a provision for expulsion and the House usually will not pass for enforcing its privileges. Even assuming for argument sake, expulsion is contemplated still the same cannot be done dispensing with the principles of natural justice, fair play and reasonable hearing to explain.
2. On 12.03.2018, the agenda for the day is only a motion being moved on address by the Governor, except this there is no other business transacted by the House of Legislature of Te1angana.
The very fact on 13.03.2018 at 10 a.m, it is mentioned (in Ex.P8) as the 1st day of ninth session started clearly indicates that 12.03.2018 is not on which date the Ninth session of the Telangana Legislature commenced. Be that as it may, the allegation basing on which the petitioners have been expelled is not the one which is reflecting on the alleged (Ex.P7) resolution adopted by the House. The reasons stated inside the house and outside house are different and the reasons explained in the Court are also different. This is nothing but malafide action tainted with illegality and irrationality.
3. The expulsion order dt.13.03.2018 which was up-loaded after 24.3.2018(Ex.P7-supra), is created after the petitioners Counsel has argued in the Court in the WP and the Honble Court passed orders on 19.03.2018, is as under:
Expulsion of Members: That this House expresses its severe anguish and deep shock at the incident that occurred during the Governors address on 12.03.2018. The unruly and contemptuous behaviour and actions of Members of Assembly namely (i) Sri Komatireddy Venkat Reddy and (2) Sri S.A.Sampath Kumar amount to violation of privileges of legislators and contempt of legislature affecting the dignity and decorum and their continuance as Members of the Assembly is untenable and in exercise of powers conferred under Clause (3) of Article 194 of Constitution of India resolves that they may be expelled from the membership of this Assembly.
4. In the light of the above order, the procedure that has to be followed by the House as per the conventions and practices by the House for expelling or suspending a member and any failure to comply with principles of natural justice is illegal and goes to the root of the case and entails the petitioners to get an order from this Honble Court. The conventions and practices of the House are evolved basing on the experiences from time to time and basing on the judgments of the High Courts and Supreme Court.
5. Some of the extracts from the book of Kaul and Shakder Practice and Procedure of Parliament (Fifth Edition), pages 119, 121 etc., referring to Rules 222, 225, 227, 229 to 233, 252, Rule 373 and 374 of the Lok Sabha Rules, besides the Rule 374-A of the Lok-Sabha Rules- which correspond to Rule 340 in the Assembly Rules; Rules 168 to 174 of the Rules of Procedure and Conduct of Business in the Telangana Legislative Assembly, placed reliance. Also placed reliance on the scope of judicial review the expressions of the Apex Court in Kihoto supra Para Nos. 95, 96, 97, 111, 143, 144, 145, 146, 147 & 148; in Raja Ram Pal Vs. The Speaker, Lok-Sabha (Constitution Bench) Para Nos.357 to 386, 394, 395 & 431; in Special Reference No.1 of 1964 under Article 143: UP Assembly-Keshav Singhs Case (7 J. Constitution Bench) for short in Special Reference No.1 of 1964 at Para 61.
6. It is further stated that a perusal of the above judgments indicates that even if the proceedings inside the House are in violation of other Constitution provisions such as Articles 14, 19 & 21, it cant escape the Judicial Scrutiny. Therefore, Courts have Judicial power to review the decision of the House if they are tainted with malafides, gross illegality, irrationality violation of constitutional mandate, non- compliance with rules of justice and perversity and apart from that it is made clear by the Supreme Court In Parliament which means during the sitting of Parliament and in the course of Business of Parliament. The pre-budget speech of the Governor is not a House proceeding or the business of the House. The address of the Governor in this case (on 12.03.2018) is outside the proceedings of the House, as the Session of the House commences only after the Governors Address, that clearly connotes there is no session at all before the Governors Address. On 12.03.2018, the agenda for the day is only a motion being moved on address by the Governor and except this there is no other business transacted by the House of Legislature of Telangana. The very fact that on 13.03.2018 at 10 a.m., the 1st day of ninth session started clearly indicates that 12.03.2018 is not on which the Ninth session of the Telangana Legislature commenced (Ex.P8). Be that as it may, the allegation basing on which the petitioners have been expelled is not the one which is reflecting on the alleged resolution adopted by the House (same is filed as a material document).
7. It is further stated that Article 208(3) clearly indicates that this rule is made by the Governor and not by the House means that this rule is not a part of regulating the House Proceedings. Hence, applying Rules of Procedure for the Conduct of Business for suspending the petitioners is not only violation of principles of natural justice and ultravires the constitution, but also violated Rule 17 which was framed by the Governor himself, which does not contemplate any suspension by the House. Also placed reliance on paras 40, 51 to 52 of the expression of the Apex Court in Nabam Rebia and Bamam Felix (Constitutional Bench) including on the scope of Article 208(3) and Article 163 in order to demonstrate the contours of the authority of the Governor under Article 175-the precursor to it was Section 63 of the Government of India Act, 1935, but for to say the words in his discretion used in Section 63(2), is not in Article 175 for it vests no such discretion, with the Governor, in the matter of sending messages envisaged under Article 175 & also placed reliance on Rule 21, of the Conduct of Business Rules framed under Article 208 as per which the entire proceedings in the Assembly are to be regulated by the Speaker (or the Deputy Speaker), and that, the Governor has no role in the proceedings of the House. The Governor is neither a member of the State Legislative Assembly, nor an officer of the State Legislature, and therefore, a Governor can have no jurisdiction in the functioning, and affairs of the House. It was accordingly asserted, that the intent expressed in Article 168, should not be determined from a cursory reading thereof, but should be visualized from the scheme of the surrounding provisions. Therefore, the Governors Speech is not a proceedings of the House nor it is inside the House, the more so, the session i.e., the legislative business inside the House commences only after the Governors Address clearly indicates that the Governors Address, addressing both the Houses does not mean a Session. A Session as per Article 174 of the Constitution of India means the period of time between the first meeting of the Assembly upon the summons of Governor and its prorogation or dissolution under Clause 2 of Article 174. A session connotes the sitting together of the Legislative body for the transaction of business. The Legislature cannot be set to have met until the preliminaries have been gone through. Also referred to Rai Sahib Ram Jawaya Kapur v. The State of Punjab (Constitution Bench) that acknowledged the separation of powers in our Constitution is not rigid. It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the Executive power connotes the residue of governmental functions that remain after Legislative and Judicial functions are taken away. The Governors pre-budget address is at the best an Executive function which has no trappings of any Legislative duty to apply conduct of business rules.
8. Also placed reliance on paras 41 to 45 of the expression of the Apex Court in Alagapuram R. Mohanraj case referring to Raja Ram Pal (supra) & Jagjit Singh supra which read-the video-recording play an important role in arriving at the conclusions and of the rules of natural justice to be followed in the context proceedings in the legislative bodies, that the principles of natural justice require that the petitioners ought to have been granted an opportunity to see the video recording. Perhaps they might have had an opportunity to explain why the video recording does not contain any evidence/material for recommending action against all or some of them or to explain that the video recording should have been interpreted differently. It is settled law that the scope of judicial review in matters relating to action taken against members by the legislative bodies is limited. However, it is likewise well settled that the non-compliance with the principles of natural justice is one of the limited grounds on which judicial review could be undertaken against the internal proceedings of the legislative bodies in appropriate cases. Therefore, principles of natural justice plays a major role and gives jurisdiction to the High Court or Supreme Court if malafides, illegality, irrationality and violation of principles of natural justice committed by the constitutional authority/body. The Privileges Committee should have necessarily offered this opportunity, in order to make the process adopted by it compliance with the requirements of Article 14.. It is not the petitioners burden to request for a copy of the video recording. It is the legal obligation of the Privileges Committee to ensure that a copy of the video recording supplied to the petitioners in order to satisfy the requirements of the principles of natural justice. The failure to supply a copy of the video recording or affording an opportunity to the petitioners to view the video recording relied upon by the committee in our view clearly resulted in the violation of the principles of natural justice i.e. a denial of a reasonable opportunity to meet the case. We, therefore, have no option but to set aside the impugned resolution dated 31.03.2015 passed in the Tamil Nadu Legislative Assembly. Article 122 and 212 of the Constitution of India will not bar the jurisdiction of the Courts when malafides, bias and violation of principles of natural justice, irrationality and fair play are violated as held in Alagapuram R Mohanraj which says that even the proceedings inside the House can be interfered with if Article 14 is violated and particularly when principles of natural justice is violated.
9. Also placed reliance on Amarinder Singh Vs Special Committee, Punjab & Haryana (Constitution Bench), on the scope of powers, privileges and immunities available under Article 105(3) and 194(3). Also placed reliance on P.V. Narasimha Rao Vs State (CBI/SPE) , dt.17.04.1998 Para No.110 where the provisions of Article 105 and of Article 194, which is in the same terms but deals with the privileges of Legislative Assemblies, have been examined by this Court in the past. Also placed reliance on the expression of the Supreme Court in Special Reference No.1 of 1964 (referring to M.S.M. Sharma V. Sri Krishna Sinha ) holding that 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 21 applies when powers are exercised by the legislature under the later part of Article 194(3). If a citizen moves the High Court on the ground that his fundamental right under Article 21 has been contravened, the High Court would be entitled to examine his claim. Article 208(1) provides that a House of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business. This provision makes it perfectly clear that if the House were to make any rules as prescribed by it, those rules would be subject to the fundamental rights guaranteed by Part III. In other words, where the House makes rules for exercising its powers under the latter part of Article 194(3), those rules must be subject to the fundamental rights of the citizens. Also referred A.M. Paulraj v. The Speaker, Tamil Nadu Legislative Assembly, Madras and Another . States therefrom that the writ petition is maintainable and the order of expulsion and the consequential extra ordinary Gazette of vacancy of seat should be set aside.
10. The affidavit averments further state that irrationality (Wednesbury unreasonableness) and Illegality are also the grounds under which the High Court or the Supreme Court can judge an order and entertain a Judicial-review as held by Supreme Court in Mayawati Vs Markandeya Chand & Others , at Para 110, referring to Tata Cellular v. Union of India(3JB) , Union of India v. G. Ganayutham and Managing Director, ECIL, Hyderabad & Others Vs B.Karunakar as the decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. Further, even a procedural facet can defeat a substantive right from the rule of audi alterm partem which is essential a procedural aspect but of such fundamental importance that itself embodies a basic substantive right from the supply of the material in inquiry before the disciplinary authority considered and the report on the proof of the charge and the nature of punishment to be imposed and denial of reasonable opportunity, in violation of Article 311(2) being unfair, unjust and illegal procedure offending Articles 14 and 21 of the Constitution and the principles of natural justice.
11. It is stated further in the affidavit that in this matter the Advocate General of the State of Telangana, on 19.03.2018, appearing on behalf of the State of Telangana as well as the Legislature Secretariat gave concessions to the court which is observed by the Honble Court as under:
So far as I.A.No.2 of 2018 is concerned, the learned Advocate General on behalf of the respondent Nos. 1 & 2 submits that all the video footage recordings in original they are going to submit in a sealed cover before the Court (Registry) at least by 22.03.2018.
The Advocate General is appointed by the Governor of the State who is qualified to be appointed as a Judge of High Court. He has an authority to represent the State of Telangana along with the State Legislature i.e., respondents 1 & 2 in this matter. The Advocate General made concessions on behalf of both the State as well as the Legislature. However, the Learned Additional Advocate General appearing on behalf of the 1st respondent on 27.03.2018 has submitted that the Advocate General of the State of Telangana who gave concessions to the Court submitted his resignation and the Additional Advocate General is appearing only for the State of Telangana and not for the Legislature Secretariat of Telangana and therefore, the Court doesnt have power to issue notice to the Legislature Secretariat and sought for time for filing counter and said the video footage recording in original cannot be submitted before the Court, which is contrary to what was held in para 59 of Keshav Singhs case (supra) of 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. Also referred Section 65 of the Indian Evidence Act and Rule 351 which deals with custody of papers (Rules of Procedure and Conduct of Business in the Telangana Legislative Assembly) under which the Secretary shall have custody of all records, documents and papers belonging to the House or any of its Committees or Legislature Secretariat and he shall not permit any such records, documents or papers to be taken from the Department without the permission of the Speaker. Therefore, the submission that the documents cannot be produced before this Honble Court without the resolution passed by the House (House is adjourned) may not be true and correct, that the Supreme Court Joginder Singh Wasu Vs. State of Punjab at para 18 referring to Article 177, while dealing with the concessions given by the Advocate General to the Court, observed that the position of the Advocate General sui generis is different from that of a Government Pleader and therefore, Advocate Generals statement across the bar, having regard to his high position, is binding upon the State and in Periyar and Pareekanni Rubbers Ltd. v. State of Kerala it was held the same yardstick of Government pleader on any concession on facts on behalf of the State cannot be applied when the Advocate-General has made a statement across the bar since the Advocate-General makes the statement with all responsibility. However, it was informed to this Honble Court by the Additional Advocate General on 27.03.2018 that the Learned Advocate General resigned. On 31.03.2018 vide G.O.Rt.No.160 and 161 several law officers have been appointed as per the recommendations of the Learned Advocate General, though alleged to have resigned long prior to 31.03.2018(Ex.P9-dt.31.03.2018 referred the appointments are in consultation with the learned Advocate General). It has been reliably informed that the resignation of the Learned Advocate General has not been accepted by the Authority under Article 165 so far. Therefore, it has to be construed that the Advocate General is still holding the post and concessions given by him to this Honble Court holds good and any failure on the part of the State or the Government has to be viewed seriously by this Honble Court.
12. It is further stated in the affidavit that the writ petition as filed for the relief is maintainable with no need of separate prayer against so called decision of the house as held by the Division Bench of the Delhi High Court very recently in Writ Petition(Civil)No.750/2018 by AAM AADMI PARTY against the respondent Election Commission. In Alagapuram case supra at Para 33 it was held that the impugned proceedings are violative of the fundamental right of the petitioners under Article 14 as in violation of the principles of natural justice. It is the settled law that the scope of judicial review in matters relating to action taken against members by the legislative bodies is limited. However, it is likewise well settled that the non-compliance with the principles of natural justice is one of the limited grounds on which judicial review could be undertaken against the internal proceedings of the legislative bodies in appropriate cases. It is referring to the expression of the Supreme Court in Deoraj V State of Maharastra stated that final relief can be granted at the interim stage in certain exceptional circumstances which are mandatory in nature on arriving at the conclusion that non-granting of interim order would result in causing extreme hardship and irreparable loss and if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice.
13. It is therefore, prayed in the interest of justice to allow the writ petition with exemplary costs by quantifying all the benefits the petitioners lost because of the illegal, arbitrary, irrational and unconstitutional action of their expulsion by the 2nd respondent and pass such other order or orders as this Honble Court may deem fit and proper in the circumstances of the case.
14. Along with the reply affidavit, the documents filed are Ex.P7- the resolution copy adopted by the House dated 13.03.2018 expelling the petitioners, Ex.P8-the first day of the ninth session (on Tuesday, 13.03.2018 at 10.00 AM), (Ex.P9-dt.31.03.2018 referred the appointments are in consultation with the learned Advocate General) and Ex.P10-G.O.Ms.No.16 dated 05.03.2018 order of the Honble Governor of Telangana notifying as per Article 174(1) and by summoning the Telangana Legislative Council to meet for its ninth session at 10.00 AM on 12.03.2018 in the Assembly Hall, Public Gardens, Hyderabad with D.O. Letter No.15/Legn/2018 dated 05.03.2018 referring to copy of G.O.Ms.No.17 of even date by the Secretary to State Legislature to the Members of the Telangana Legislative Assembly pursuant to Article 174(1) from the Honble Governor of Telangana has been pleased to summon, informing under Article 176(1) that the Governor of Telangana will address the members of both Houses of the Legislature at 10.00 AM on 12.03.2018 in the Assembly Hall, Public Gardens, Hyderabad with tentative calendar of dates showing on 12.03.2018 there is only the Governors address of the days subject. The paper clippings filed are not exhibited for not a primary source of evidence.
V. Heard Counsel for the Writ Petitioners and the Addl. Advocate General for the 1st Respondent State-Law and Legislature Department and the Counsel for the 3rd Respondent Election Commission. So far as the 2nd Respondent-the Legislative Secretariat of the State of Telangana rep. by its Secretary concerned, originally the Learned Advocate General appeared and submitted arguments in detail for two sittings for Respondents 1 & 2 viz., 16.03.2018 and 19.03.2018 and undertaken to submit all the video footage recordings in original in a sealed cover before the Court (Registry) at least by 22.03.2018 and file counter in main writ petition to continue the arguments further and later even on 22.03.2018 the Additional Advocate General representing the Advocate General submitted that for production of the original video footages of the Legislative Assembly, it is in the process from any requirement of resolution to submit and it is going to be submitted soon and also going to file counter, time was granted till 27.03.2018, to produce the original video footages of the Legislative Assembly and to file counter meanwhile by supplying copy to the learned counsel for the petitioners to file any reply. However, the 2nd Respondent later did not choose to produce the original video footage supra and did not choose to file counter and did not even choose to continue further arguments much less to appear and contest further. Before referring to the docket proceedings dated 27.03.2018, it is needful to refer the docket proceedings particularly dated 19.03.2018 as to the happenings in the open Court.
1(a). The docket order of the first day of hearing on 16.03.2018 speaks of heard arguments at length and for continuation at request of both counsels as part-heard posted to 19.03.2018 Again on 19.03.2018 the further arguments were submitted at length on behalf of the respondents 1 & 2 by the learned Advocate General, in the presence and with assistance of the Additional Advocate General besides the special Government Pleaders attached to the Office of Advocate General and Additional Advocate General. Arguments of the counsel for the Election Commission-3rd respondent also heard. It was therefrom what are the interim orders passed and what made to post to another date for filing counter in main writ petition to continue the arguments therefrom were that:
1(b). In so far as I.A.No.1 of 2018 from the prayer is to direct the 3rd respondent-Election Commission not to issue notification/schedule or hold bye-elections for filling the seats to the 92-Nalgonda Assembly Constituency and 80-Alampur Assembly Constituency of The State of Telangana pursuant to the vacancy announced by the 2nd respondent concerned, from the submission by the learned counsel-Sri Avinash Desai, for the Election Commission of pursuant to the intimation of vacancies from the impugned expulsion proceedings covered by the Gazette notification, which are the subject matters of this writ petition, no notification issued so far nor any further steps taken and there is a period of six months from the date of arising of vacancies to notify meantime and having placed reliance also on the expression of the Two Judge Bench of the Apex Court in Election Commission of India v. Bajrang Bahadur Singh in this regard, that the Election Commission undertakes that they are not going to give any notification for a period of ten (10) days and they will file counter in the meantime. The undertaking though chosen to record, said ten (10) days period of undertaking will not subserve for such undertaking if at all must be till disposal of the interim applications on filing counters and hearing further arguments, in view of the above and also by considering the duty of the Election Commission to conduct elections within six months from date of notification of vacancies, pending consideration of the legality of the impugned expulsion and Gazette notification, there shall be interim direction to respondent No.3-Election Commission not to take any further steps for a period of six (6) weeks from today, so that any further extension of interim direction if necessary to consider only later.
1(c). In so far as I.A.No.3 of 2018 from the prayer is to suspend the Extra-ordinary Gazette in C.No.26/Legn/2018 dated.13.03.2018 notifying Vacancy of no.92-Nalgonda Assembly Constituency, Telangana State for 1st petitioner and C.No.27/Legn/2018 dated.13.03.2018 notifying Vacancy of no.80-Alampur (SC) Assembly Constituency, Telangana State for the 2nd petitioner issued by the 2nd respondent, the learned Advocate General stated that counter is required to be filed in the main writ petition for Respondent Nos.1 & 2 to proceed further arguments in the main matter for the interim direction to suspend the Extra-ordinary Gazette in C.Nos.26 & 27 supra issued by the 2nd respondent is to pass any interim order, touching the issue to decide the main relief sought for declaration of the action of the respondent No.2 in expelling the petitioners 1 and 2 from the service of the House by a resolution dated 13.03.2018 and in consequently issuing the Extra- ordinary Gazette supra as illegal, arbitrary, without any source of power and jurisdiction and in utter violation of principles of natural justice and in derogation of Rule 17 of the Procedure and Conduct of Business in the Telangana Legislative Assembly and ultravires the Constitutional Provisions in Article 175 & 176 of the Constitution of India etc., grounds and sought a weeks time to file a counter meantime. The Court considered the same and also stated therefrom on the docket further on 19.03.2018 that so far as I.A.No.3 of 2018 is concerned, before passing any order it is required to be heard further on filing of counters with reply if any. Post on 22.03.2018.
1(d). In so far as I.A.No.2 of 2018 from the prayer to direct the 2nd respondent to produce the video footage before this Honble Court, while the Court was going to pass orders for production of the original video footage of the proceedings during the Pre Budget Speech of the Honble Governor on 12.03.2018, the learned Advocate General on behalf of the respondent Nos. 1 & 2 submitted of no need to pass that order as all the video footage recordings in original they are going to submit in a sealed cover before the Court (Registry) at least by 22.03.2018. This Court thereby recorded said submission as follows:
So far as I.A.No.2 of 2018 is concerned, the learned Advocate General on behalf of the respondent Nos. 1 & 2 submits that all the video footage recordings in original they are going to submit in a sealed cover before the Court (Registry) at least by 22.03.2018.
1(e). It was therefrom adjourned the matter to 22.03.2018 observing that this Court feels requirement of counter of respondents 1 & 2 and respondent No.3 respectively also in so far as I.A.No.3 of 2018 concerned before passing any order it is required to be heard further on filing of counters with reply if any and at their request, the matter is adjourned to 22.03.2018.
1(f). For more clarity, the docket orders from dated 19.03.2018 to 09.04.2018 when the matter reserved for judgment are reproduced herein:
1(f)(i). Docket order dated 19.03.2018:
Heard the arguments at length of the learned counsel for the petitioners, learned Advocate General (TG) appearing for the respondent Nos.1 & 2, and also the arguments of Sri Avinash Desai, learned Standing Counsel for the respondent No.3-Election Commission.
However, this Court feels requirement of counter of respondents 1 & 2 and respondent No.3 respectively and at their request, the matter is adjourned to 22.03.2018.
So far as the interim applications viz., I.A.Nos.1 to 3 of 2018 are concerned, in I.A.No.1 of 2018 it is the submission of the learned Standing Counsel for respondent No.3-Election Commission that pursuant to the intimation of vacancies from the impugned expulsion proceedings covered by the Gazette notification, which are the subject matters of this writ petition, no notification issued so far nor any further steps taken and there is a period of six months from the date of arising of vacancies to notify meantime and placed reliance also on the expression of the Two Judge Bench of the Apex Court in Election Commission of India v. Bajrang Bahadur Singh in this regard.
From the above, the learned Standing Counsel submits on the instructions of the Election Commission-respondent No.3 that the Election Commission undertakes that they are not going to give any notification for a period of ten (10) days from today and they will file counter in the meantime. The undertaking though chosen to record, said ten (10) days period of undertaking will not sub serve for such undertaking if at all must be till disposal of the interim applications on filing counters and hearing further arguments.
In view of the above and also by considering the duty of the Election Commission to conduct elections within six months from date of notification of vacancies, pending consideration of the legality of the impugned expulsion and Gazette notification, there shall be interim direction to respondent No.3-Election Commission not to take any further steps for a period of six (6) weeks from today, so that any further extension of interim direction if necessary to consider only later.
So far as I.A.No.2 of 2018 is concerned, the learned Advocate General on behalf of the respondent Nos.1 & 2 submits that all the video footage recordings in original they are going to submit in a sealed cover before the Court (Registry) atleast by 22.03.2018.
So far as I.A.No.3 of 2018 is concerned, before passing any order it is required to be heard further on filing of counters with reply, if any.
Post on 22.03.2018.
1(f)(ii). Docket order dated 22.03.2018:
At request of the learned Additional Advocate General representing the Advocate General that for production of the original video footages of the Legislative Assembly, it is in the process from any requirement of resolution to submit and it is going to be submitted soon.
Post on 27.03.2018, as it is already the understanding to file counter meanwhile by supplying copy to the learned counsel for the petitioners to file any reply.
1(f)(iii). Docket order dated 27.03.2018:
The Additional Advocate General submits that the Advocate General, appeared earlier for the respondents, is not appearing now onwards and he got instructions, at best, to appear for 1st respondent and no instructions to appear for 2nd respondent and once such is the case, the question of producing the video footage does not arise. Same is recorded, to proceed further with the matter by placing reliance on the expression of the three judge bench of the Apex court in Gopal Krishnaj Ketkar Vs. Mohamed Haji Latif and Others , that a party in possession of best evidence which could throw light upon the issue in controversy withholding it, Court can draw an adverse inference against him not with standing that onus of proof does not lie on him, party cannot rely upon the abstract doctrine of onus of proof or on the fact that he was not called upon to produce it.
The request of the Additional Advocate General to grant time for filing counter of 1st respondent for four weeks cannot be considered, in view of the earlier assurance on 19.03.2018 to file counter by serving on the other side by 22.03.2018 and atleast by today, dated 27.03.2018, as reflecting in the earlier dockets; thereby posted for counter and further hearing of arguments to 03.04.2018.
The learned standing counsel for 3rd respondent seeks time to file counter if any by 03.04.2018.
1(f)(iv). Docket order dated 03.04.2018:
At request of the learned Additional Advocate General for respondent No.1 to supply copy of the counter to the learned counsel for the petitioners and respondent No.3 and file before the Registry on or before 06.04.2018 saying the draft is already made ready and under process of finalization and obtaining of signatures, same is recorded. So also for counter of respondent No.3 stated sent for signatures and therefrom the learned counsel for the writ petitioners, if at all to file any reply by 09.04.2018 to continue further arguments at request of the learned counsel for respondents 1 & 3 from 09.04.2018 onwards.
Hence, for compliance with the order for filing of counter by serving copies to the learned counsel for the petitioners by respondents 1 & 3, post on 06.04.2018.
1(f)(v). Docket order dated 09.04.2018:
Heard. Reserved for judgment.
2. It is thereby crystal clear that the 2nd respondent having participated in the proceedings and taken time twice to file counter and taken time twice to produce the original video footages of 12&13.03.2018 did not choose to comply and did not choose to appear much less to raise any contest including at least by disputing any of the writ petition affidavit averments on its correctness or otherwise, needless to say having received the Ex.P(1)(c) notice not even chosen to dispute any of its averments and not even complied with in response to the notice by supply of the documents and video footages, further withheld the best evidence without production before Court, despite undertaking to produce and again taken time to produce and for no reason to the non-production and withholding despite knowledge of the Constitution Bench expression of the Apex Court in Gopal Krishnaj Ketkar supra, reflected on the docket order dated 27.03.2018 supra of the non-production leads to adverse inference of the disputed events of 12&13.03.2018, from a party in possession of best evidence which could throw light upon the issue in controversy withholding it, Court can draw an adverse inference against them notwithstanding that onus of proof does not lie on them. Needless to say once the very Legislative Secretariat of the State of Telangana that what is rep. by its Secretary, Legislative Assembly Buildings is the 2nd respondent, there is no need of any resolution for the document to be produced by it, that too, when Rule 351 of the Rules of procedure and conduct of business of the Telangana Legislative Assembly clearly speaks that - the Secretary shall have custody of all records, documents and papers belonging to the House or any of its committees or Legislature Secretariat and he shall not permit any such records, documents or papers to be taken from the department without the permission of the speaker. Thus, it is at best the speakers permission is only required, not even a written for oral permission can be suffice therefrom, it is unknown how it could be represented on 22.03.2018 through the learned Additional Advocate General representing the Advocate General that for production of the original video footages of the Legislative Assembly, it is in the process from any requirement of resolution to submit and it is going to be submitted soon is no doubt the ultimate submission in taking time, but did not comply.
3. Among the Ex.P1(a) to (c) supra being highly relevant (since Ex.P7 already reproduced and Exs.P8&9 relevant portions mentioned supra), for more clarity reproduced the Ex.P1(a) & (b) herein and also mentioned the gist of Ex.P1(c) herein:
EXHIBIT P1 (a) THE TELANGANA GAZETTE PART-II EXTRAORDINARY PUBLISHED BY AUTHORITY NOTIFICATIONS BY GOVERNMENT TELANGANA LEGISLATIVE ASSEMBLY EXPULSION OF SRI KOMATIREDDY VENKAT REDDY, MEMBER ELECTED FROM 92-NALGONDAASSEMBLY CONSTITUENCY.
C.No.26/Legn./2018.- Consequent on expulsion of Sri Komatireddy Venkat Reddy, a Member elected from 92-Nalgonda Assembly Constituency from the Membership of Telangana Legislative Assembly on a Resolution adopted by the House, the said Assembly Constituency has fallen vacant with effect from 13.3.2018.
Hyderabad, Dr. V. NARASIMHA CHARYULU,
13-03-2018. Secretary to State Legislature.
EXHIBIT P1 (b)
THE TELANGANA GAZETTE
PART-II EXTRAORDINARY
PUBLISHED BY AUTHORITY
NOTIFICATIONS BY GOVERNMENT
TELANGANA LEGISLATIVE ASSEMBLY
EXPULSION OF SRI S.A. SAMPATH KUMAR, MEMBER ELECTED FROM 80- ALAMPUR (SC) ASSEMBLY CONSTITUENCY.
C.No.27/Legn./2018.- Consequent on expulsion of Sri S.A. Sampath Kumar, a Member elected from 80-Alampur (SC) Assembly Constituency from the Membership of Telangana Legislative Assembly on a Resolution adopted by the House, the said Assembly Constituency has fallen vacant with effect from 13.3.2018.
Hyderabad, Dr. V. NARASIMHA CHARYULU, 13-03-2018. Secretary to State Legislature.
Ex.P1(c)-notice in nutshell (Pages 19 & 19-A of the writ petition enclosure) issued by the petitioners dated 14.03.2018 to the Honble Speaker of the Legislative Assembly by disputing the incident allegedly happened while the Honble Governor in his Pre Budget Speech addressing the Members of the House of ear phone alleged to have hit the left eye of the Honble Chairman of the Telangana Legislative Council on 12.03.2018 for his exposed to media, where bandage has been put to his right eye, which throws any amount of doubt of the evil design and despite the objections of the opposition, without giving any reasonable opportunity they have been expelled unilaterally on 13.03.2018, at the beginning of the business of the House, no business transacted before expelling and suspending all congress members of both Houses on that day and thereby the video footage is crucial for both the parties to prove the case, hence kindly provide them the video footage which establishes the alleged injury caused to the Honble Chairman, from where the ear phone alleged to have been thrown and landed on the face of Mr. Swami Goud, Honble Chairman on 12.03.2018, along with bulletin, proceedings took place at 10.00 AM on 13.03.2018, where the Legislative Affairs Minister, read over recommending the expulsion and suspension of the Indian National Congress Members, immediately as violated principles of natural justice by not giving any opportunity of being heard and that there was a leak to the media about the petitioners have been expelled and notification of vacancy have been issued and Gazetted within 12 hours, but failed to provide any of the above mentioned documents to the aggrieved parties, therefore, violated all the norms of parliamentary procedures and practices and principles of natural justice and fair play. Hence provide all the above mentioned documents forthwith.
3.(a). It is also stated in similar lines of the notice in the reply affidavit supra of writ petitioners no doubt in more detailed that on 12.03.2018, the agenda for the day is only a motion being moved on address by the Governor and except that there is no other business transacted by the House of Legislature of Te1angana and said pre-budget speech of the Governor is not a House proceeding or the business of the House. The very fact on 13.03.2018 at 10 a.m, it is mentioned in Ex.P8 as the 1st day of ninth session started clearly indicates the same. The allegation basing on which the petitioners have been expelled is not the one which is reflecting on the Ex.P7 resolution adopted by the House.
The reasons stated inside the house and outside house are different and the reasons explained in the Court are also different. As per the rules, regulations, conventions, practices and procedures of the Legislative House, there will be an agenda for the days business of the House, followed by business advisory committee meeting. However, the business for the 13.03.2018 from 10 a.m./1st day of the 9th session clearly indicates that there is only a list of starred questions circulated separately. However, the Minister for Legislative Affairs at 10 a.m. on 13.03.2018 stood up and directly recommended for expulsion of 2 members and suspension of 11 members and the Speaker immediately accepted and expelled both the petitioners and suspended the others without there being any deliberation, discussion, debate or giving reasonable opportunity to explain their version before expelling them. When they requested the Chair saying that it is illegal and against the procedures and practices and rules and regulations, the Honble Speaker has asked them to leave the House saying they were expelled already and directed the Martial to remove them from the house without giving any audience even after expulsion. The Minister for legislative affairs clearly stated that the petitioners are expelled and therefore they are no more members of the House and hence no audience will be given. This is not only against the conventions and practices but also goes against the rules and regulations which contemplate that one member has to move a motion for expulsion and the member against whom the motion has been moved will be asked to talk/explain and after the explanation is given by the member against whom the motion is moved, if not satisfied, the mood of the House will be verified by the Speaker by giving opportunity to every floor leader of each and every political party. If all the floor leaders opine that the member against whom the motion is moved is liable for suspension, the same will be carried in accordance with the mood of the House as per Rule 340. Expulsion is the harshest punishment against a member as it results in vacancy of a seat and the constituency will be without an MLA, therefore, the rules do not contain a provision for expulsion and the House usually will not pass for enforcing its privileges. Even assuming for argument sake, expulsion is contemplated still the same cannot be done dispensing with the principles of natural justice, fair play and reasonable hearing to explain. The expulsion order dt.13.03.2018 which was up-loaded after 24.3.2018 is created after the petitioners Counsel has argued in the Court in the WP and the Honble Court passed orders on 19.03.2018.
4. From the above, it no where mentioned the cause for expulsion of the two petitioners in said Ex.P1(a) & (b) Gazette notifications (C.No.26 & 27supra respectively) but for saying therein as, on a resolution adopted by House. Despite Ex.P1(c)-notice issued and acknowledged on 14.03.2018, no documents stated supplied to the petitioners including the video footage and any resolution adopted by the House if in existence as on 14.03.2018 pursuant thereto atleast, leave about no opportunity and no supply of any documents including serving of any resolution and the expulsion order for which the resolution shown as if basis. Even in the course of the arguments advanced by the learned counsel for the petitioners on 16.03.2018 it was highlighted of the above and even in the writ petition averments also disputing the incident and questioning the expulsion and non- providing of opportunity and non-supply of documents and violation of principles of natural justice and the procedure and provisions with a request to supply the video footage and all documents of the two dates i.e., 12 & 13.03.2018, the 2nd respondent having been represented by the Advocate General and others supra and even continued the arguments for two days on 16 & 19.03.2018, not even chosen to produce the resolution of the House if any while not disputing the non- supply even of the resolution and the very Gazette notifications supra to the petitioners, but for undertaken on 19.03.2018 as referred supra of going to produce the all original video footages of the respective dates supra, to produce any documents like resolution of the House with counter to be filed. This Court thereby has no option but for to draw adverse inference against the 2nd respondent by relying upon the expression in Gopal Krishnaj Ketkar supra for the 2nd respondent being party to the writ proceedings having participated in the proceedings and contested for some time and undertaken to produce and failed to produce from later not chosen to contest even and also having been in possession of the best evidence referred supra which when definitely could throw light upon the issue in controversy in its withholding.
5. In fact that is not the end all for the reason, from non-supply of the impugned order of expulsion and the resolution which is the basis for it with any material documents which are the basis for it will not give the order any force as contended by the learned counsel for the petitioners. In this regard, the Constitution Bench of the Apex Court held in State Of Punjab v Amar Singh Harika on the facts in brief where the respondent-Amar Singh Harika, who was an Assistant Director, Civil Supplies, in the Patiala and East Punjab States Union, was dismissed from service by an order purported to have been passed on 03.06.1949, which was however communicated to him by the Chief Secretary, Pepsu Government, only on 2/3 January 1953. The respondent filed a suit meanwhile in Patiala Civil Court against the appellant-the State of Punjab alleging the impugned order of dismissal passed without holding any enquiry, and that the procedure adopted in respect of said enquiry was also invalid, inoperative and illegal as wholly illegal and invalid and to declare that he continued to be an employee of the appellant and to hold his position as Assistant Director, Civil Supplies, that was resisted by the appellant State on several grounds including the suit as filed was incompetent in law; the impugned order was valid, legal and binding on him and also raised the plea of limitation. Based on 3 issues (1) is the dismissal of the plaintiff from service of the defendant illegal, void and ultravires? (2) is the suit within time? & (3) is the suit maintainable?; the first two issues were answered by the trial Judge in favour of the respondent-Plaintiff, however, held that the suit filed by the respondent was not maintainable in law in dismissal of the suit claim with costs. Against the trial Courts decree, the respondent-Plaintiff preferred an appeal in the Punjab High Court, which has upheld the finding of the learned trial Judge in favour of the respondent on the first two issues that the dismissal of the respondent was ultravires, void and illegal and that the respondent's suit was within time. In regard to the finding of the learned trial Judge that the respondent's suit was not maintainable, the High Court has taken a contrary view and held that the suit was maintainable. In the result, the respondent's claim has been decreed with costs throughout. It is this appellate decree which is challenged before the Apex Court by special leave. On 2/3 May, 1949, the respondent received a communication from the Government of Pepsu, Home Department in which it was suggested to him that in view of the definite finding of the enquiry committee holding him guilty of the charges levelled against him, he may exercise his option to resign. It was however, added that even if he resigned, it should not be taken to imply any commitment on the part of the Government to accept the same. Pursuant to this letter the respondent tendered his resignation on 6th May 1949. Notwithstanding his resignation, the appellant-State proceeded to pass an order of dismissal against him on 3 June 1949. This order purported to take effect from the date of respondent's suspension which was 5 July 1948. It is significant that though a copy of this order was forwarded to six persons noted thereunder, no copy of the same was sent to the respondent. On 29 January 1951, the respondent made a representation to the Government of Pepsu in which he asked for a copy of the report of the committee, a copy of the allegations on which the said report was based and a copy of the charge sheet to show cause why the respondent should not suffer the punishment as proposed by the Government before taking final action in the matter. He also prayed for a reasonable opportunity to show cause against the said punishment. In reply, the respondent was informed on 16 April 1951, by the Pepsu Government that his representation could not be considered in view of the fact that he had tendered resignation. However, it was on 28 May 1951, that the respondent was informed by Bishan Chand, Assistant Comptroller, Pepsu, that the record of the office showed that he had been dismissed from Government service with effect from the date of this suspension. It is on this date that the respondent came to know about his dismissal for the first time. Then, followed further correspondence between the respondent and the appellant. When, however, the respondent found that all his pleas failed, he withdrew his resignation on 22 August 1952. Last came the order passed on 2/3 January 1953, by the Chief Secretary to Government, Pepsu. This order informed the respondent that his last application dated 20 August 1952, requesting for reinstatement on the ground that his dismissal was unlawful and unjust, was rejected and that Government found it impossible to reopen his case. On receiving this order, the respondent filed the present suit on 20.04.1954. The Apex Court held that.. It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may feel that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that the mere passing of the order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise. If before receiving the order of dismissal, the officer has exercised his power and jurisdiction to take decisions or do acts within his authority and power, would those acts and decisions be rendered invalid after it is known that an order of dismissal had already been passed against him? Would the officer concerned be entitled to his salary for the period between the date when the order was passed and the date when it was communicated to him? These and other complication would inevitable arise if it is held that the order of dismissal takes effect as soon as it is passed though it may be communicated to the officer concerned several days thereafter. It is true that, in the present case, the respondent had been suspended during the material period; but that does not change the position that if the officer concerned is not suspended during the period of enquiry, complications of the kind already indicated would definitely arise. We are, therefore, reluctant to hold that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it will take effect as form the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working and holding charge of his office, can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority. In our opinion, therefore, the High Court was plainly right in holding that the order of dismissal passed against the respondent on 3 June 1949, could not be said to have taken effect until the respondent came to know about it on 28 May 1951.
6. No doubt in the reply affidavit of the writ petitioners dated 06.04.2018, it is mentioned that the expulsion order dt.13.03.2018 which was up-loaded after 24.3.2018, is a created one only after the petitioners Counsel has argued in the Court in the WP and the Honble Court passed orders on 19.03.2018. What it reads referred in Para 4 supra with no need of repetition in exact words but for the gist, there is nothing even therefrom as to what was occurred during the Governors address on 12.03.2018, to express by the House its severe anguish and deep shock at the undefined and unspecified incident, much less to say any unruly and contemptuous behaviour and action of the petitioners as if amounts to violation of privileges of legislators and contempt of legislature affecting the dignity and decorum and to say their continuance as Members of the Assembly is untenable and to exercise any of the powers conferred under Clause (3) of Article 194 of Constitution of India so to resolve to expel their very membership of the Legislative Assembly. In fact the Constitution Bench in Amarinder Singh supra referring to the expression in P.V. Narasimha Rao supra, very categorically observed in this regard of use of general expressions or open words are not the basis to expel a member for his conduct impugned in the house during course of business of the house with out any substance to that in its wording that:
Expressions such as `lowering the dignity of the house', `conduct unbecoming of a member of the House' and `unfitness of a member' are openly-worded and abstract grounds which if recognised, will trigger the indiscriminate and disproportionate use of legislative privileges by incumbent majorities to target their political opponents as well as dissidents.
6(a). In fact, as per the Rules of procedure and conduct of business in the Telangana Legislative Assembly framed under Article 208(1) of the Constitution of India, the Assembly and the House are defined in Rule 2(1)(a) & (h) as Legislative Assembly of the State; Session is defined in Rule 2(1)(v) to mean period of time between the first meeting of the Assembly upon the summons of the Governor under Article 174(1) of the Constitution and its prorogation or dissolution under Clause (2) thereof and it is clearly mentioned in Rule 2(2) of the Rules that the words and expressions used in the Constitution and not defined in these Rules shall have the same meanings assigned to them in the Constitution. No doubt Rules 17 & 17-A of the Rules in Chapter V, referring to Articles 175 & 176 speak that at the commencement of the first session of every year (leave about at commencement of first session after each general election of Assembly) the Governor shall address both the Houses of the Legislature and inform the causes of its summons and where required election of the Speaker shall precede the Governors address, leave about copy of the Governors address shall be laid on the table of the House and every Member shall maintain the dignity and solemnity of the occasion before, during or after the Governors address and shall not obstruct or interrupt the address in any manner. From this, coming to Articles 174 to 176, a combined reading of the same clearly shows the difference between conducting of business of the House and address of the Governor prior to that, leave about the address forming part or not of commencement of the first session of the House, definitely not part of conduct of the business of the House or the Houses. Further Resolution as defined in Rule 2(1)(s) to mean motion for the purpose of discussing a matter of public interest and shall be in the form of a special recommendation or a declaration of opinion by the Assembly. It clearly indicates from the very definition of resolution, the requirement of moving a motion for purpose of discussion and shall be in the form of a special recommendation or a declaration of opinion and had it been taken what was uploaded on 24.03.2018 of the so called resolution dated 13.03.2018, same is not a resolution fully as contemplated as to what was the discussion undertaken from what was the motion moved for nothing found place therein. Further as per Rule 340 in Chapter XXVI of the Rules of procedure and conduct of business of the Assembly supra, the Speaker if he deems it necessary name a Member who disregards the authority of the Chair or abuses the rules of the House by persistently and wilfully obstructing the business thereof.
If a member is so named by the Speaker, the Speaker shall on a motion being made, forthwith put the question that the Member naming him be suspended from the service of the House for a period not exceeding the remainder of the session. No doubt the House may at any time on a motion being made resolve that such suspension be terminated, leave about Rule 358 enables to move by any member with consent of Speaker of any rule may be suspended in its application to a particular motion before the House and if the motion is carried the rule in question shall be suspended for the time being. It is not a case of Rule 358 is invoked. In fact, the Rules framed are under Article 208(1), which are different from the Rule making power of the Governor under Article 208(3). There is no dispute on the scope of Article 194(3) and Article 194(1) and (2), leave about said Rules are form part of the powers, privileges and immunities of the House of the Legislature of a State, and of the Members and Committees of such Legislature defined by the Legislature by law or not from its combined reading with Article 13 r/w the definition of the State in Article 12 since includes the Government and the Legislature of each of the States also to r/w Article 366 Clause 26-B. 6(b). Thus, for the alleged incident happened during the Governors address on 12.03.2018, besides not during part of business of the House, leave about the same is part of first session or not, mere Gazette notification dated 13.03.2018 without any details therein for expelling them, stating preceded by a resolution of the House of even date and in its uploading on even date, leave about no reason for not uploading for 11 days till 24.3.2018 of the resolution of their said expulsion dated 13.03.2018, leave about same is not within the meaning of resolution under Rule 2(1)(s) as referred supra and same undisputedly not supplied even any resolution if in existence, at least from the request of the petitioners by written notice under Ex.P1(c) acknowledged on 14.03.2018 and not even filing any such document before the Court including the original video footages of 12 & 13.03.2018 despite undertaken by the respondent No.2 through the Advocate General to produce by the submissions dated 19.03.2018, by 22.03.2018 and also for filing of counter and without even filing counter again taken time on 22.03.2018 for production and filing of counter to 27.03.2018 by the representation of the Additional Advocate General referred supra of the docket order and in the wake of the facts the uploading on 24.03.2018 of so called resolution dated 13.03.2018 and even from said resolution uploaded on 24.03.2018 referred in the reply affidavit supra dated 06.04.2018 as discussed supra nothing mentioned of what exact incident that happened to take such a grave recourse of expulsion of the two petitioners from the very duly elected respective Legislative Assembly membership of theirs. Suffice to say from the five Judge Constitution Bench expression of the Apex Court in Amar Singh Harika supra, that there is no enforcement of the order of expulsion of the petitioners dated 13.03.2018 even date for what was the incident that happened is not so far communicated to them much less by supply of even the original video footages which contain of what was the incident if at all happened for not even supplied despite their request by written notice dated 14.03.2018 and not even produced before the Court, to supply to the petitioners at least by Court, despite undertaking to produce through Advocate General by the 2nd respondent till 27.03.2018 and on that day the submission by the learned Additional Advocate General of not appearing for the 2nd respondent but for the 1st respondent having been so instructed and the question of production of the said original video footages pursuant to the undertaking by the Advocate General does not arise as reflected in the docket order supra dated 27.03.2018, including to draw adverse inference from non-production as mentioned therein and discussed supra and for non-production and non-disclosure of what are the exact incidents and its gravity that resulted in expulsion and if at all as petitioners stated came to know from the print media clippings of alleged hurling of earphone or the hitting of it to the Honble Chairman of Legislative Council Sri Swami Goud and in disputing of no such incident happened from the very notice averments dated 14.03.2018 and writ petition affidavit averments supra. Thus, this is not a mere irregularity of procedure covered by Article 212 of the Constitution of India to say this Court cannot scrutinize the action, leave about any alleged criminal misconduct of any of the two petitioners as Members of the House allegedly affecting dignity of House at best for criminal prosecution to report to police, is not an obstruction of legislative business for any Justifiability of exercising House privileges to expel, that too when the alleged incident if any happened was on 12.03.2018, when the Honble Governor has addressed the members of the Legislative Assembly as well as Legislative Council of Telangana Legislature, which was before commencement of the Budget session of the Legislative Assembly for the year 2018-19 for the Telangana State, with effect from 13.03.2018 as can also be seen from Ex.P8.
7. From the very writ petition averments supra, the Minister for Legislature has moved a resolution on 13.03.2018 to expel the petitioners for interrupting the Governors address on the previous day i.e., 12.03.2018 and a motion has been carried out and the Extra- ordinary Gazette in C.Nos.26 & 27/Legn/2018 dated.13.03.2018 notifying the respective Vacancies of Nos.92 & 80 for Nalgonda and Alampur (SC) Assembly Constituency, Telangana State have been issued, of same was done even before commencement of any business of the day during the session to say of the first day of the session more particularly with reference to the Ex.P8.
8. Before discussing on the facts further, coming to the law, it is necessary to have a glance with historical background on separation of powers/functions, constitutional supremacy vis--vis parliamentary supremacy and scope of judicial review and the basic features from the basic structure of the Constitution that cannot be changed or interfered with in exercise of the powers in discharge of their functions and duties within the defined limitations by the three wings and the recognition of fundamental rights if necessary to read with directive principles of the state policy as part of the basic features of the Constitution including the observance of principles of natural justice in a quasi judicial function almost at par with administrative functions concerned, I. Introduction:
8(a). Leave about the press is considered as the 4th pillar(even invisible, being invincible), among the three other main, visible and perceptible pillars of Democracy under the Indian Federal Polity with the supremacy of the Constitution, we follow a separation of functions and not separation of powers in strict sense among the i).Legislature
ii).Judiciary and iii).Executive. The concept of the Indian democracy is a multi-dimensional concept broader than the notion of majority rule, because real democracy is not just the law and rules and legislative supremacy; but each of the wings are required in their working to protect and preserve the human liberty and human rights by protecting the Constitutional Democracy. It thereby requires a just balance between the three wings for the public good. It is clear from the Constitutional framework that the concept of supremacy either of the legislature or of any of the other wings is no longer recognized. Dr. B.R. Ambedkar, in his famous speech on 25th November, 1949, on conclusion of deliberations of the Constituent Assembly, stated: "These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty, nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require enforcing them. Though, each of the three wings are independent in its own field, this does not mean that functioning of one organ can not be checked by the other to a required extent, so that no organ in its functioning may misuse the power or override the Constitutional frame work and limitations. The Constitution that is supreme in fact ordains all the three wings to function with independence, but within its frame work and basic features, without destroying or diluting the basic structure of the Constitution. We thereby dont abide by the doctrine of separation of powers in its rigidity for all the three wings must work to protect the Constitutional supremacy.
8(b). John Stuart Mill observed The worth of the State, in the long run, is the worth of the individuals comprising it.
8(c). Justice V.R. Krishna Iyer in his book titled the Majesty of the Judiciary (Universal Law Publishing Company Private Limited, reprint 2013 at Page 111 quoted by his erudition with legal acumen that our Constitution, rooted in Noble values of individual dignity and social justice, attempts a happy reconciliation between the worth of the human person and the survival of the just social order sans which the human sole has no hope nor the Constitutional vision a mission so that governance is best which commits itself to the fundamental principle that fraternity, assuring the dignity of the individual is the finest essence of the preamble of the Constitution there is a spiritual dimension to our Constitutional structure and that is what integrates the sacred wonder of personhood and the secular egalitarian order Part III of the Constitution deals with the inherent dignity and the equal and inalienable rights of every member of Indian society as the foundation of human freedoms. Part III elevates human rights to high priority in the scheme of the rule of law. The State shall obey and enforce fundamental rights whose paramountcy is proclaimed by Article 13. if the State contradicts, contravenes or commits breach of the individuals part III rights, State action suffers ultra-vires invalidation. Article 13 is a process of human rights and State power synergism, a creative constitutional camaraderie clause ahead of John Marshalls novel American achievement. Wherever plenary personhood, insulated by Articles 13 to 30, is put to peril by Executive arbitrariness or Legislative excess, the Court, as the sentinel on the Qui-vive and invigilator on the alert, shall intervene to make the individual invulnerable. Nay more. The judicature is invested with vast powers writ missiles which hit the target of injustice to issue directions or orders or writs whichever may be appropriate, for the enforcement of any of the fundamental rights in Part III On the basic structure of the Constitution at page 118 onwards he quoted that perhaps the worlds second longest constitution, the first largest ensemble of civilized values and the noblest articulation of pragmatic comprehension is the great juristic avatar which formally breathed life on 26th January, 1950 as the sovereign socialist secular democratic republic of India Our Founding Fathers have selectively inscribed many features from the worlds democratic fundamental laws. The vision of the architects of the Constitution is projected in the Preamble and illumined lucidly in Part III as inviolable fundamental rights enjoying paramount importance. These great rights are enforceable judicially. But beyond these lofty human rights are the directive principles of state policy spelt out in part IV as provisions which, though not enforceable by any Court are, nevertheless, principles fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. The conscience of the Constitution is the confluence of part III & IV and although the highest Court has sometimes differed in interpretation, it is now settled semantically that the two parts have harmonious togetherness. It is fair to hold that a complete understanding of the supreme values of the constitution must include Fundamental duties added later as part IV-A. Indeed, part III, IV & IV-A have certain integrality. The meaning of the meanings while readings these 3 parts has a cultural humanism and fraternal interaction. So much so, finer essence of the constitution is missed if the three parts are isolated in interpretation. So, to gain a plenary sense and sensibility of these values, a semantic synthesis is imperative. Then alone glory to the Articles will unfold the vision and mission of the suprema-lex A quote from Max Muller opens the eyes of the West to the magnificence of India of the ages: May draw the corrective which is the most wanted in order to make our inner life more perfect, more comprehensive, more universal, in fact more truly human a life, not for this life only, but a transfigured and eternal life again I should point to India India, with Jawaharlal Nehru as Prime Minister, and Mountbatten as the President of India, started the grand odyssey. A Constituent Assembly drafted the Constitution of India with Rajendra Prasad as the Chairman. Dr. Ambedkar, matchless in constitutional wisdom, chaired the drafting committee The Sovereign Democratic Republic came into active existence on 26th January, 1950 with Rajendra Prasad as President and Nehru as Prime Minister Articles 14, 15, 16, 21, 38, 39 & 46 are manifestation of human rights, although broadly speaking these and other Articles can be read together in a wider sense as guaranteeing the basic value of equality, free speech and association and the right to life and freedom of faith as the fundamental essence of dignity and divinity. Article 13 exhaust the fundamental rights under Part III as above all ordinary legislation invalidating them if they are inconsistent with the provision of this Part. Existing law contradicting the fundamental rights are declared void and the State has been forbidden from making any law, which obviate or abridges the rights conferred by part III. Thus, these rights are judicially enforceable and any statutory provision which violates the Articles of Part III are contrary to the basic structure of the Constitution as Kesavananda Bharati case lays down The learned author quoted William H. Hasties eloquence that Democracy is a dynamic, not a process, not a static condition. It is becoming, rather than being. It can easily be lost but never is fully won. Its essence is eternal struggle.
8(d). It was therefore stated with all emphasis by the Supreme Court in the famous Minerva Mills Limited Vs. Union of India that in our Country, the Constitution is suprema-lex, the paramount law of the land and there is no authority, no department or branch of the State, which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution, by scanning the law in this regard right from A.K.Gopalan Vs State . The Constitution has devised a structure of power relationship, with checks and balances; and limits are placed on the powers of every authority or instrumentality under the Constitution. Every organ of the State, be it the Executive or the Legislature or the Judiciary, derives its authority from the Constitution and it has to act within the limits of such authority. Parliament too, is a creature of the Constitution and it can only have such powers as are given to it under the Constitution.
8(e). Even in England, where the principle of Parliamentary supremacy as enunciated by Dicey prevailed for centuries, recent judgments of the Judiciary, particularly after the coming into force of the Human Rights Act, 1998 (w.e.f. 2nd October, 2000), have laid down that law has given place to the modern theory that it is the Constitution that is supreme and not any of the three wings.
8(f). One and half decades ago, Laws LJ, stated in International Transport Roth GMBH Vs. Home Secretary , in his separate Judgment that after coming into force of the UK Human Rights Act, 1998, the British system which was once based on parliamentary supremacy has now moved from the principle to the system of Constitutional supremacy. He quoted Locobucci J of Canada in Vriend Vs. Alberta that after the Canadian Charter of Rights and Freedoms, Canada had moved from Parliamentary supremacy to Constitutional supremacy. He observed:
When the Charter was introduced, Canada went, in the words of Chief Justice Brian Dickson, from a parliamentary supremacy to Constitutional supremacy.
8(g). Unlike British Parliament, Indian Parliament is not sovereign. It is the Constitution which is supreme and sovereign and Parliament will have to act within the limitations imposed by the Constitution. We, in India, thus moved from Parliamentary supremacy to Constitutional supremacy even by 26th January, 1950, as stated in the Minerva Mills case supra. In re. Article 143, Constitution of India and Delhi Laws Act the Supreme Court in 1951 itself observed thus:
"There is a basic difference between the Indian and the British Parliament in this respect. There is no Constitutional limitation to restrain the British Parliament from assigning its powers where it will, but the Indian Parliament qua legislative body is fettered by a written Constitution and it does not possess the sovereign powers of the British Parliament. The limits of the powers of delegation in India would therefore have to be ascertained as a matter of construction from the provisions of the Constitution itself."
II). Historical background:
8(h). In this regard, if we review the history, it shows that centuries ago the King was Supreme. The totalities of Governmental functions were concentrated in the King who exercised all the powers of Legislative, Executive and Judicial. The Rules and guidelines as code of conduct which the King practiced included within it not merely the conformance to the law or rules but abiding by the moral codes prescribed by respective Religious or Spiritual Heads popularly known as Raja Dharma.
8(i). Coming to the historical background of India the Bharat, the concept of Dharma in the Indian tradition gives greater emphasis to the duties for public good, rather than powers of the rulers, under the Doctrine of Public Trust. It is thereby said that when the Kings of yore followed Raja Dharma, there was absolute peace and harmony, natures seasons were in perfect rhythm, the citizenry were happy and could pursue their life goals with spirituality, from the Famous Quotes - Dharmoh-Rakshti-Rakshitaha,Yatoh-Dharma-Statoh-jayaha, Satyameva
- Jayateh and particularly of Yatha Rajah-Tatha Praja.
8(j). In the Indian era, the rule of Dharma was given thereby greatest importance from the saying; if it is Dharma that ruled in the hands of the King, people lived happily with peace and harmony and in right path, where if it is the King that who ruled as he likes arrogating whatever he said or did is only the dharma, it resulted in tyranny from his monarchy and autocracy, irrespective of any political majority. The roles of the Rulers in the epics Ramayana and Mahabharata are the best examples.
8(k). Swami Vivekananda in his book-The Complete Works, Vol.V, 8th Edtn., pages.192&193 said that:
The basis of all systems, social or political, rests upon the goodness of men. No nation is greater or good because Parliament enacts this or that, but because its men are great and good Religion goes to the root of the matter. If it is right, all is right,. One must admit that Law, Government, Politics are the phrases not final in any way. There is a good beyond them-known as Dharma, followed where Law is not needed..All great masters teach the same thing for morality with purity in thought and action. All persons may be happy, may express each others happiness, that there may be welfare for all, all being free from fear, decease, cherish good feelings and sense of brotherhood, unity and friendship.
8(l). Coming to the importance of Dharma in which justice is a part, Dharma is that - which sustains and ensures progress and welfare of all in this world and eternal bliss in the other world. Justice as part of said Dharma is embodying duties, obligations, liberties, rights & liabilities of individuals and State and its legal enforcement is for common good and in larger public interest and welfare. Dharma is thus not a mere moral principle concerned with one religion alone of the secular society. It is in fact a duty and includes all religious observances, secular laws of the community and State and conventions and usages.
8(m). The history of Globe speaks that the King when ruled by departing from said Raja Dharma, it led to Monarchy, Autocracy or Tyranny. As centuries passed, there was deviation from the rules of Dharma and there were quite a good number of rulers who were arbitrary or even cruel. The main casualties then were life, liberty and equality; now protected by the Constitution as fundamental rights.
8(n). The history of Globe even speaks that, due to concentration of all these powers vested in a person called the King as Supreme and the people could not question his authority, from the concept that a King can do no wrong; it led to Monarchy, Autocracy and Tyranny. Adolph Hitler, Adi Amin etc., of the Globe stand as examples on this side of the coin.
8(o). It signifies the widely accepted fact that for a political system to be stable, one person or body of persons should not exercise all the powers of the Government but for by different wings and even the holders of power need to be balanced off against each other.
8(p). The following are some notable sayings on Separation of powers or functions as the case maybe.
(i). Lord Action explained Executive+Legislative+Judicial-(in one person)=Monarch, Autocrat, Tyranny.
(ii). In the Shakespeares comedy measure to measure it is quoted that O, it is excellent to have a giants strength, But it is tyrannous, to use it like a giant.
(iii). In the words Dr.Johnson Law is a last result of human wisdom acting upon human experience with reason for the benefit of humanity.
(iv). According to Kautilya Philosophy is lamp of all the sciences the means of performing all the works and the support of all the duties.
III. Background Study of the Doctrine of separation of powers:
8(q). There were several enlightenment thinkers in the origin, growth and development of this Doctrine of Separation of Powers, viz.,
(i). Thomas Hobbes (1588-1679) - Hobbes believed that a powerful Government like an absolute monarchy was best for society it would impose order and compel obedience. It would also be able to suppress rebellion.
(ii). John Locke (1632-1704) - John Locke theory propounded that at birth, people have the right to life, liberty and property. Rulers/ Governments have an obligation and responsibility to protect the natural rights of the people it governs. If a Government fails in its obligation to protect natural rights, the people have the right to overthrow that Government. The best Government is one which is accepted by all of the people and which has limited power (Locke liked the English monarchy where laws limited the power of the King). All mankind...
being equal and independent, no one ought to harm another in his life, health, liberty or possessions without sanction of law.
(iii). Thomas Jefferson - Lockes ideas influenced Thomas Jefferson more than anything else when Jefferson wrote the US Declaration of Independence in 1776. Locke also influenced later revolutions in France (1789) and in many other places in the world in the 19th Century.
(iv). Jean-Jacques Rousseau (1712-1778) - People are basically good but become corrupted by society (like the absolute monarchy in France). The general will (of the people) should direct the state toward the common good. Hence, the good of the community is more important than individual interests. Jean-Jacques Rousseau questioned authority - absolute monarchy and religion. Jean-Jacques Rousseau was passionate he hated political and economic oppression. Jean-Jacques Rousseau influenced later revolutionaries, both middle class and socialist.
(v). Baron de Montesquieu (16891755) - He was a member of the Bordeaux and French Academies of Science and studied the laws and customs and Governments of the countries of Europe. He strongly criticized absolute monarchy and was a voice for democracy. According to him knowledge of the laws of Government would reduce the problems of society and improve human life. According to him, there were three types of Government: a monarchy (ruled by a King or queen), a republic (ruled by an elected leader) and despotism (ruled by a dictator). He believed that a Government that was elected by the people was the best form of Government and success of a democracy-a Government in which people have the power - depends upon maintaining the right balance of power. Montesquieu argued that the best Government would be one in which power was balanced among three groups of officials. He propounded Separation of Powers of Government into three branches:
Legislative; Executive and Judicial as, the best way to protect liberty is to divide the powers of Government into three branches: Legislative; Executive and Judicial, with Checks and Balances that each branch of Government should check (limit) the power of the other two branches. Thus, power would be balanced (even) and no one branch would be too powerful. The sublimity of administration consists in knowing the proper degree of power that should be exerted on different occasions, so that, no branch of the Government could threaten the freedom of the people. Montesquieu's book on the Spirit of Laws, published in 1748, was his most famous work. It outlined his ideas on how Government would best work. Madison and the Founding Fathers took heed of Montesquieus warning by establishing an independent Executive (the President), Legislative (the Congress) and Judiciary (the Supreme Court) in the federal Constitution.
(vi). Adam Smith (1723-1790) - Smith was a Scottish economist who has been called the father of capitalism. Smith was an advocate of laissez faire (French for let do, let go, let pass. - often referred to as hands off.). Laissez faire was a theory of the natural laws of economics: business should operate with little or no Government interference. Smith argued the free market of supply and demand should drive economies. The hidden hand of competition was the only regulation an economy needed. Wherever there was demand for goods or services, suppliers would compete with each other to meet that demand in order to make profit. The rich ... divide with the poor the produce of all their improvements. They are led by an invisible hand to make nearly the same distribution of the necessaries of life which would have been made, had the earth been divided into equal proportions among all its inhabitants.
(vii). James Madison - masterfully protected the separation of powers by establishing a thorough system of checks and balances as well. Montesquieus separation of powers and checks and balances influenced James Madison and other framers of the US Constitution.
These ideas are at the core of American Government to this day.
IV. Importance of the Doctrine:
8(r). The importance of the doctrine of separation of powers, out come from the above enlightened thinkers among others, lies in the fact that it seeks to preserve the human liberty by avoiding concentration of powers in one person or body of persons. It is not necessary to go into further history but will be sufficient to note that Baron Montesquieu was well recognized as the person who clearly propounded the doctrine of separation of powers in his De ll Esorit des Luix (Book Xl, Ch 6) ly-Locke. It speaks that accumulation of all powers, Legislative, Executive and Judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny. Therefore, separation of powers doctrine acts as a check against Tyrannical rule. The purpose underlying the separation doctrine is to diffuse Governmental authority so as to prevent absolutism and guard against arbitrary and tyrannical powers of the state and to allocate each function to the institution best suited to discharge it.
8(s). The principle of democracy in that sense was explained by Abraham Lincoln that democracy is for the people, by the people and of the people.
8(t). In the modern era of welfare State, the Governmental system in almost all democratic countries was re-organised with separation of powers of the Government in its three wings as
i).Legislature ii).Judiciary and iii).Executive.
8(u). In India also, the Governmental system is administered through its separation of powers and functions viz., The Legislature (Parliament and State Legislatures) legislates statutes. The Courts (Supreme Court, High Courts and subordinate Courts) administer Justice. The Executive (all Governmental departments, Ministers) etc., administer the administrative affairs under the collective responsibility of the Council of Ministers. The Parliament and State legislatives will not interfere in the matters of Courts and Administrators, unless required by the Constitutional mandate. The Courts will not interfere in the matters of legislation and administration, unless required by the Constitutional mandate. The executive has no power to legislate unless delegated to legislate and has no power to administer Justice but for only entrusted with quasi Judicial functions.
V. Fundamental objects of the doctrine:
8(v). Fundamental object of the doctrine of separation powers/functions is to protect the life, liberty, freedom and equality to every citizen of the State. This principle deals with the mutual relations among the three organs of the State.
8(w). Parliament is no doubt the vehicle, through which aspirations and needs of the people can be met. It is part of the mechanism to establish the rule of law and distributive justice. Denying and depriving it of its powers and abdication by it of its responsibilities can only lead to the erosion of the legitimate aspirations of the people themselves.
8(x). Coming to the British system, no man is punishable... except for a distinct breach of law established in the ordinary Courts of the land - (A V Dice). The Cabinet in England is the steering wheel of the ship of the State - Ramsav Muir. On the question self posed of Does Britain Have a Constitution? - Thomas Paine and Alexis De Tocqueville are of the opinion that, England has no Constitution; what Thomas Paine declared is that where a Constitution cannot be produced in a visible form, there is none and to the spirited reply of Burke who defended the existence of the British Constitution, even Paine asked...Can Mr.Burke produce the English Constitution?, if he cannot, we may fairly conclude that though it has been so much talked about, no such thing as a Constitution exists or ever did exist. In a different tone, if not similarly, De Tocqueville said that, in England, the Constitution may go on changing continually or rather it does not exist; both of them are wrong and their opinions are misconceived for the reason there could be no State without Parliament, may it be written or unwritten. According to Munro, the British Constitution is a complex amalgam of institutions, principles and practices. It is a composite of charters and statutes, of Judicial decisions, of common law, of precedence, usages and traditions. It is not one document but hundreds of them. It is not derived from one source but from several.It is a child of wisdom and chance. As put it rightly by - A Sitirist that the British Constitution is just like a river which glides slowly past one feet coming in and out and almost lost to view in foliage.
8(y). We can divide these sources into groups in the British system viz., (1). Conventions, which are some of the principles of the Constitution based on what Dicey has called, "the conventions of the Constitution". In fact the workability of the English Constitution is based upon conventions without which it would become unworkable. These conventions are regarded, as sacred as laws of the Constitution;
(2). Charters like Magna-Carta (1215), Petition of Rights (1628), Bill of Rights (1689), Act of Settlement (1701) and Act of Union with Scotland (1707);
(3). Statutes like Reforms Act of 1832, Parliament Act of 1911, Representation of People's Acts of 19I8 and 1928, the Local Government Acts of 1888, 1924 & 1933, the Abdication Act of l936, Statute of West Minster Act,1931, Ministers of Crown Act of 1937 & Indian Independence Act of l947;
(4). Judicial decisions. As Ogg remarks Govt. of the United Kingdom is in ultimate theory an absolute monarchy in form of a limited Constitutional monarchy and in actual character a democratic republic.
VI. Judicial-review and its evolution-an Indian perspective:
8(z). Judicial-review, in its most widely accepted meaning, is the power of the Courts to consider the Constitutionality of acts of other organs of Government, where the issue of Constitutionality or legality is germane.
8(aa). The arbitrary administrative and quasi Judicial actions give rise to Judicial-review against such actions to protect the sufferers. It is said and rightly, that any administrative or quasi Judicial or Judicial decision will derive its greatest authority from its justness, impartiality and reasonableness with Integrity. This statement shows that once a decision of any authority is found to be just and reasonable, it gains wide acceptability and that itself constitutes the best authority for the implementation of that decision. The concept of Welfare State contemplated by our Constitution and international conventions to which India is a party, resulted in enactment of several statutes which are called welfare legislation and also several other fiscal statutes to raise funds for various welfare programmers apart from the usual legislation made for regulation of industry, commerce and trade. Several authorities have been created under the before mentioned enactments, conferring wide powers of discretion on the executive to exercise and also for making subordinate legislation within the delegated arena and also for enforcement of said Statutes & Rules/Regulations there under.
8(ab). As a result, the same Administrative Law which is a branch of the public Law has developed to new heights and the trends show that very often Jurisdiction of the Constitutional Courts and other Courts is being invoked with complaints that statutory authorities and also the Executive or Legislative quasi Judicial authorities have not been exercising their powers properly and or abusing the same and are acting in violation of principles of natural justice and to the detriment of fundamental rights or other Constitutional rights or statutory rights of those affected by their decisions, for sitting against the decisions by Judicial-review to rectify, keeping in view the Constitutional frame work and basic structure doctrine and as per the true spirit of the Preamble and other Provisions contained in the written Constitution of India, no doubt with in the limitations provided if any.
8(ac). It includes Judicial-review in the areas of any over ridings, encroachments or even from any abdication of responsibilities or obligations or duties of any one of the other two wings in performance of their area, which said to have been occurred in the legislative decisions, executive actions as per the Judicial expressions of the Constitutional Courts rendered from time to time to uphold the Constitutional supremacy; while recognizing the separation of functions with no rigid separation of powers in the working of the three wings with any recognised or defined limitations in its respective spheres on the limited permissibility to stretch its hands into that area, which do not amount to institutional conflict in the democratic set up. An analysis into these three organs and the relations between them interpreted time and again with the experience in different Countries along with India gives a clear idea.
8(ad). The doctrine of Judicial-review has acquired different nuances during the course of its evolution in UK, USA, Canada, Australia and India. While its origin can be traced to UK which has no written Constitution, it has become firmly established in USA and other Countries supra with a written Constitution establishing mostly a federal polity . However, the Doctrine reached its culmination under the Indian Constitution when the Supreme Court of India bestowed on Judicial- review the widest ambit and amplitude in its celebrated expression of the Constitutional Bench in Kesavananda Bharati v. State of Kerala .
8(ae). According to Pritchett, the foundations of Judicial- review are to be traced to "the obvious influence of natural law, the belief that human conduct is guided by fundamental and immutable laws which have natural or divine origin and sanction."
8(af). In Dr. Bonham's case (1610), Chief Justice Coke stated:
When an act of Parliament was against common right or reason, repugnant or impossible to be performed, the Common Law would control it and adjudge such act to be void. One can read for more details in this regard .
8(ag). The absence of a written Constitution and legal recognition of the Doctrine of Parliamentary Sovereignty seem to have inhibited the emergence of a full-fledged Doctrine of Judicial- review in England atleast the coming into force of the Human Rights Act, 1998 (w.e.f. 2nd October, 2000). Whereas the position is different even prior to the year,2000 in the other Countries supra.
8(ah). Coming mainly to USA, she adopted a written Constitution with a federal polity in establishing a constitutionally limited or controlled Government. The American Constitutional milieu provided a fertile soil for emergence of the doctrine of Judicial-review under which the federal Supreme Court would be the arbiter in enforcement of the federal principle and in upholding the rights of the people.
8(ai). Alexander Hamilton, one of the founding fathers of the American Constitution argued that "the Constitution can be preserved in practice no other way than through the medium of Courts of Justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution as void.
8(aj). But it was the Chief Justice John Marshall who propounded in an articulate and authentic fashion the modern Doctrine of Judicial-review in the locus classicus Marbury v. Madison in l863 . Chief Justice Marshal declared the powers of Judicial-review of executive action as one of the fundamental aspects of the Judicial power. It was gradually lead to establishment of Democratic Countries with voice of people. Thus the particular phraseology of the Constitution of the United States confirms and strengthens the principle supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that the Courts as well as other departments, are bound by that instrument.
8(ak). The learned Chief Justice John Marshall founded the Doctrine of Judicial-review on the following basic principles:
1. The Constitution is the "fundamental and paramount Law of the nation" and hence commands supremacy. In the case of written Constitutions, particularly of federal character, the Court has to perform the function of an arbiter in maintaining the balance between the federation and the federating units with regard to distribution of legislative powers.
2. The power of Judicial-review is inherent in a federal Constitution though it is not expressly provided for.
3. It is emphatically the province and duly of the Judicial department to say what the law is.
4. The President of USA and the Judges of the Supreme Court are under an oath to uphold the Constitution.
5. Over a period of time the Doctrine of Judicial-review has become the cornerstone of American Constitutional Jurisprudence and the power of Judicial-review has come to be exercised by the federal as well as State Supreme Courts to test the validity of the Legislative and Executive actions of the federal as well as the State Legislatures and Governments.
8(al). Coming to the concept of Judicial-review in India: Unlike the American Constitution which under Article III, Section 1 declares that "the Judicial Power of the United States, shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish", the Indian Constitution does not contain an express provision to that effect, however, the power of Judicial-review of the Supreme Court of India is traceable to Article l3(1) and (2) and Article 32(I) and of the High Courts to Article 226 of the Indian Constitution as held in State of Madras v. V.G.Row and Kesavananda Bharati supra at page.1899.
8(am). The High Courts power of Judicial-review is wider to that of the Supreme Court from the very wordings of the Articles 32 and 226 of the Constitution of India, to say not only confined to fundamental rights violation but also beach of any Constitutional provision, needless to say against the decision of High Court the Supreme Court while sitting in appeal can exercise such wide powers of High Court leave about the Supreme Courts special powers conferred by Articles 136 and 142 of the Constitution of India with more teeth as per need and with all elasticity to the extent of necessity.
8(an). No doubt, where fundamental rights are restricted by law, it will be for the State to establish that the restrictions on fundamental rights imposed by any Statute are reasonable within the parameters laid down in part III of the Constitution. The Courts perform a Constitutional function of examining the validity of legislature action because they are vested with that power, and not because they claim supremacy over the legislature.
8(ao). Way back in 1950 itself, in A.K.Gopalan (supra), the Supreme Court held that the Constitution is supreme and all the three wings have to work as per the Constitutional requirements and power of Judicial-review is inherent in any federal form of written Constitution whether specifically conferred or not for necessarily infer and act.
8(ap). In Kesavananda Bharati supra, it was categorically held that the power of Judicial-review however could not be exercised so as to destroy those features of the Constitution which constitute its basic structure.
8(aq). The Supreme Court later in Indira Gandhi Vs Raj Narain , has struck down cl.(4) of Article 329 on the ground that it violates the Rule of Law and free elections which according to the Court constitutes the basic feature of the Constitution.
8(ar). The Supreme Court laid down in L Chandra Kumar Vs. Union of India that the Legislature cannot take away by any law or by amendment of the Constitution, the power of Judicial-review of the High Courts and the supervisory role of the High Courts over subordinate Courts and Tribunals as permitted by Articles 226 & 227 of the Constitution of India. The reason is that Judicial-review of legislature and administrative action is part of the basic structure of the Constitution.
8(as). In fact the Doctrine of Judicial-review has been authoritatively added to the list of basic features in the case of Minerva Mills supra, particularly from the observations of Bhagavathi, J.
8(at). This point was further elaborated by the learned Judge in Sampath Kumar Vs Union of India , that the basic and essential feature of Judicial-review cannot be dispensed with, but it would-be within the competence of Parliament to amend the Constitution so as to substitute in place of the High Court, another alternative institutional mechanism or arrangements for Judicial-review, provided it is not less efficacious than the High Court. Ranganath Mishra, J. who wrote the majority judgment in Sampath Kumar supra, held that Judicial-review by the Court is left wholly unaffected and it was held that as per the spirit of the Constitution, establishment of Tribunals are only as substitutes and not supplements to the High Courts. The Supreme Court held in Chandra Kumar supra therefrom that the power of Judicial- review of the Supreme Court and that of the High Courts are identical, the power is vested in the High Court also to exercise Judicial superintendence over the decisions taken by Courts and Tribunals within their respective jurisdictions, since that is also part of the basic feature of the Constitution; while approving the Dicey's puritanical view of Rule of Law vis--vis Droit Administratif, in establishment of Alternative Dispute Resolution mechanism as an universally accepted common law feature as well as of continental legal systems and also in other jurisdictions, which necessitated by certain compelling circumstances like the need for expert bodies to deal with specialised categories of dispute settlement, the need for cutting down delays in the justice delivery modalities, and docket explosion in the regular Courts of the land.
8(au). In Maru Ram v. Union of India & Others it was held that all public power, including Constitutional power, shall never be exercisable arbitrarily or malafide and ordinarily guidelines for fair and equal execution are Guarantors of the valid play of power and same quoted with approval in Swaran Singh v. State of U.P. of 1998 and Epuri Sudhakar Vs Govt. of A.P. of 2006 by holding: "we cannot accept the rigid contention of the learned counsel for the third respondent that this Court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily, malafide or in absolute disregard of the finer canons of the Constitutionalism, the by-product order cannot get the approval of law and in such cases, the Judicial hand must be stretched to it."
8(av). The Supreme Court of India quoted with approval in this regard, Lord Denning in (i). Healey v. Minister of Health that "Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a Judicial decision, or a quasi-Judicial decision, or an Administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases, the Courts will not themselves take the place of the body to whom, Parliament has entrusted the decision. The Courts will not themselves embark on a rehearing of the matter" and (ii). Pad-field vs. Minister of AFF that If the decision-making body is influenced by considerations which ought not to influence it; or fails to take into account matters which it ought to take into account, the Court will interfere. Further, in Rex vs Northumberland Compensation Appeal Tribunal, Ex Parte Shaw , it was observed that the word "final" was not enough, for it would mean subject to recourse to Certiorari. The word final makes the decision final on facts but not final in law and, therefore, Certiorari could still be issued when required and necessary even if the decision was made by the statute as final.
8(aw). The Supreme Court in Sterling Computers Ltd. v. M & N Publications Ltd held that while exercising the power of Judicial- review, the Court is concerned primarily as to whether there has been any infirmity in the decision-making process? In this case, the following passage from Professor Wades Administrative Law was relied upon: "The Doctrine that powers must be exercised reasonably has to be reconciled with the no less important Doctrine that the Court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultravires. The Court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended." It may be pointed out that this principle was also applied by Professor Wade to quasi Judicial bodies and their decisions, relying upon decision in R. vs. Justices of London .
VII. Wednesbury Rules and Doctrine of proportionality:
8(ax). All executive orders must conform to the Constitution or must be intravires of the law governing the action, if there is a law holding the field. Nor can they offend the fundamental rights or other Constitutional provisions. In the matter of interference by the Judiciary, normally great deference is shown to administrative orders and the Courts would interfere only if there is need to interfere according to what are known as Wednesbury principles, i.e., the Court will not intervene unless the orders are suffering from any illegality, violation of natural Justice, procedural irregularity or are based upon irrelevant considerations or where relevant considerations are omitted or where the order is irrational. By irrationality, means the order is one which no reasonable person in his senses could have passed.
8(ay). However, where the administrative orders infringe the fundamental rights, the Courts are not restricted to Wednesbury Rules, but can go into the proportionately of the order. For example, if an administrative order passed in exercise of a Statute offends freedom of speech guaranteed by Article 19(1), then the Courts can examine whether the restriction imposed by the executive order was proportionate to the object sought to be achieved or was wholly disproportionate.
8(az). In the case of Wednesbury Rules the Courts review is secondary in nature in finding out whether the administrator had acted reasonably; but in the case of fundamental rights, the Court acts as a primary reviewing authority and can modify or strike down that part of it which is disproportionate or state what would be proportionate.
8(aaa). It has to be realized that the Court is the guardian of the Constitution; it is capable of progressive interpretation and has to be construed according to the needs of the changing times. Such an interpretation, whether one calls it Judicial activism or not, if it satisfies the needs of the day and the public interest, then it cannot be faulted.
8(aab). In England, Lord Denning was an activist Judge in the Court of Appeals and whenever the House of Lords, in its conservative approach, reversed him, the British parliament enacted laws on the lines decided by Lord Denning.
8(aac). Mr. Justice Brandeis of the US Supreme Court was described in 1949 as a pragmatic Judicial Activist who saw in the Court of powerful instrument to be grasped by the people in ameliorating social and economic conditions. Thus Judicial activism is not a monolithic concept.
8(aad). Lord Woolf, Chief Justice of England, said in 1998 that:
When power is centralized, Government is in frenetic activity and political controls are weak (in opposition and local Government), Courts should act in order to legally control the Government and protect people.
8(aae). At the Worldwide Common law judiciary conference in April 2003, Lord Woolf quoted Sir William Wade (18th Ed., 2002) Administrative Law, as to what the Courts are compelled to do if the Government is itself weak and the Executive is powerful: The expanding Jurisdiction (of the Courts), is often linked with the decline of Parliament as a check on the Executive.
8(aaf). Justice Kirby of the High Court of Australia, in one of his speeches in Delhi, has praised the Indian Judiciary as follows: Throughout the Commonwealth of Nations, with which (for the most part) India, like Australia, shares the great tradition of the common law, insufficient in known about the wonderful Jurisprudence of this Country.. there is a general belief or understanding that the Supreme Court of India and the High Courts under its leadership, have been particularly creative and imaginative in the development of the Constitution and common law Sometimes, in my own Court decisions, I have drawn upon the jurisprudence of the Indian Courts to sustain a small advance in the exposition of the common law.
8(aag). Finally, Lord Woolf while speaking at the 13th Common- wealth Law Conference at Melbourne (16th April 2003) on the International Role of the Judiciary stated about the Indian Courts as: I know, for example, that my decisions have been influenced by the exchanges I have had with my Indian colleagues. Initially, I was astounded by the proactive approach of the Indian Supreme Court, but I soon realized that, if that Court was to perform its essential role in Indian society, it had no option but to adopt the course it did and I congratulate it for the courage it has shown.
8(aah). It will thus be seen that the pro-active approach of the Indian Courts has been applauded by Courts in the Commonwealth, particularly in England, Australia and South Africa and the so called activism of the Indian Courts is nothing but progressive and purposive interpretation of the law or exercise of Judicial power meant to serve the need of the hour and public interest. It is never intended to encroach on the jurisdiction of the legislature or the executive, but for upholding the supremacy of the Constitution.
VIII. There is, however, one area where the Legislature functions as a Judicial body and this is when it considers that a person has committed breach of privilege by exceeding his freedom of speech in the House and that he is liable to be punished by way of a sentence of imprisonment or fine or expulsion or exclusion or suspension or the like with any action having the civil consequence. This power flows from and is incidental to the powers and privileges of the legislatures. Our parliaments and State legislatures enjoy the same privileges which the House of Commons enjoyed at the time of the commencement of our Constitution as provided in Articles 105 & 194 of the Constitution, no doubt all privileges claimed by House of Commons, but such of those recognised by the Courts in U.K. as laid down by the Constitution Bench of the Supreme Court in Special Reference No.1 of 1964 supra; leave no difficulty to decide how far it is available after the Constitution 44th Amendment in 1978, for there is no difference of its availability even after the said amendment which came into force w.e.f. 20.06.1979 from what is quoted by one of the living jurists of the country Sri Ram Jethmalani in his book Parliamentary privileges Indian Parliament Practice & Procedure at Chapter XIV page 1456 that The purpose of this amendment, as stated by the then Law Minister while replying to the discussion on the Constitution (Amendment) Bill, was that a proud Country like India would like to avoid making any reference to a foreign institution in its own solemn constitutional document. The amendments made in the Articles 105(3) and 194(3) were, however, of verbal nature and the position remains basically the same as on 26 January, 1950. No doubt, it must be noted that both the Articles open with the words, subject to the provisions of the Constitution etc. to consider the scope of Judicial-review in this arena and as to what extent?
8(aai). Before discussing further of the above, it is useful to mention that, the founding fathers of the Constitution expected that each Constitutional machinery shall function well with in its sphere to strengthen the Democracy in the Nation. For such effective functioning, it was proposed that certain privileges should be conferred on members of the House. A privilege means a special or exceptional right or immunity. Accordingly, the framers have conferred freedom of speech and some other privileges under Articles 105 & 194 of the Constitution hoping that they would utilize them to effectively voice the will and woes of the people.
8(aaj). These two articles read as follows:
(a). Article 105:
(1). Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of parliament, there shall be freedom of speech in Parliament.
(2). No Member of Parliament shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of parliament of any report, paper, votes or proceedings.
(3). 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 that may from time to time be defined by Parliament by law, and, until so defined shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (forty-fourth Amendment) Act,1978.
(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 Parliament or any committee thereof as they apply in relation to members of Parliament.
(b). Article 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, votes, 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 that House and of its members and committees [immediately before the coming into force of Section 26 of the Constitution (Forty-fourth Amendment) Act,1978].
N.B: The pre 1978 amendment to Clause(3) of this Article 194, reads that: "(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). 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 proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.
8(aak). Among these two Articles, Article 105 relates to the powers, privileges and immunities of the Parliament and its members whereas Article 194 relates to the privileges of state legislatures and their members. There is amendment to both the Articles in 1978 to the above effect. Even from said amendment in 1978 supra, what were the powers etc., the House of Commons exercised as on the date of commencement of the Constitution in 1950 that are conferred by Article 194(3) second part are deemed conferred even to continue from the above amendment in 1978, but for to say from what is discussed supra of not all privileges claimed by the House of Commons that are available to exercise, but for such of those recognised by the Courts in U.K. as laid down by the Constitution Bench of the Supreme Court in Special Reference No.1 of 1964 supra. We now therefrom can confine our discussion to the Article 194 and scope of Judicial-review thereunder. In continuation to what is discussed supra, the availability or not of the power of expulsion of a member of the House by the House is in the dominion of the High Court to enquire is not in dispute from the settled expressions in this regard, leave about for that matter even of the power of Judicial-review on the correctness of such action to decide as held by the Apex Court in the expressions discussed supra, leave about to be further discussed some more in this aspect since well settled. Undisputedly, the first part of Clause(3) of Article 194 enables the Legislature to define by law its powers, privileges and immunities and of the members and the committees of a House of the Legislature. The second part provides that until the powers, privileges and immunities of the House are so defined, the powers, privileges and immunities of the House 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 the Constitution. In this regard, coming to consider any attempt made by the Legislature so far for codification of the privileges rather than to rely on what were the privileges available to the House of Commons and recognized by the Courts to exercise, Sri Ram Jethmalani in his book Parliamentary privileges Indian Parliament Practice & Procedure at Chapter XIV page 1459 mentioned that, the issue of the codification of privileges and the report of the Committee of Speakers were discussed in detail at the conference of the presiding officers held in August, 1950. In his opening address to the conference, the Chairman (Speaker Mavalankar) observed that:
There will be two great difficulties and handicaps if we were to think of any legislation in respect of the privileges. These are:
i) Any legislation at the present stage would mean legislation only in regard to matters acceptable to the Executive Government of the day. It is obvious that, as they command the majority, the House will accept only what they think proper to concede. It is important to bear in mind that the privileges of members are not to be conceived with reference to this or that party, but as privileges of every member of the house, whether he belongs to the Government or the Opposition party. My fears are, therefore, that an attempt at legislation would mean a substantial curtailment of the privileges as they exist today.
ii) My second reason is that any legislation will crystallize the privileges and there will no scope for the presiding authorities to widen or change the same by interpretation. Today they have an opportunity of adopting the principles on which the privileges exist in the United Kingdom to the conditions in India.
I may here invite your attention to the Secretarys note (Kaul, op. cit.) on the subject which is being circulated to you (POC proceedings, 21-8-1950, pp.2-3). The note referred to above, inter alia, emphasised:
Our Constitution has one important peculiarity in that it contains a declaration of fundamental rights and the Courts have been empowered to say that a particular law or part of law is void or invalid because it is in conflict with a particular fundamental right and therefore beyond the powers of Parliament.
At the present time the privileges of Parliament are part and parcel of the Constitution and therefore of what is known as the fundamental law. The Courts will, therefore be compelled to reconcile the existing law of privilege, which carries with it the power of the Speaker to issue warrant without stating the grounds on the face of it, with the fundamental rights. It will be extremely difficult for the Supreme Court to say that what is so explicitly provided in a part of the Constitution in regard to the existing privileges of Parliament is in any way restricted by the fundamental rights.
8(aal). In fact from the very above discussion and note, there is only at best among suspension for the day or till end of the session, the other punishments provided are to issue a warrant without even stating grounds for arrest. It is no where discussed of any availability of powers and privileges of expulsion of members, leave it as it is there is a scope for Judicial-review of such actions even to reconcile with that constitutional privilege and power with other constitutional provisions particularly that of fundamental rights though the constitutional provision conferring the privilege is part of fundamental law though not any fundamental right of the House to overcome the fundamental rights of the members and the citizenry. As per Kaul and Shakder Practice and Procedure of Parliament (Fifth Edition) (Pg.Nos.119 to 121) it was stated that the Speaker determines whether there is a prima facie case for a matter relating to a breach of privilege or contempt of the House. Without his consent, no question involving a breach of privilege either of a member of the House or a Committee thereof can be raised in the House, but the Speaker can suo-motuo, refer any such question to the Committee of Privileges for examination, investigation and report, by referring to the Rules 222, 225 and 227 of the Lok Sabha Rules. At page 256, the authors state that the term breach of privilege means a disregard of any of the rights, privileges and immunities either of members of the House individually, or of the House in its collective capacity. After due inquiry, a breach of privilege is punished in the same way as courts of law punish for contempt of their dignity or authority. In fact, the Supreme Court in Special Reference No.1 of 1964 supra at para 61 held that there are two other articles to which reference must be made. Art. 208(1) provides that a House of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business. This provision makes it perfectly clear that if the House were to make any rules as prescribed by it, those rules would be subject to the fundamental rights guaranteed by Part III. In other words, where the House makes rules for exercising its powers under the latter part of Article 194(3) those rules must be subject to the fundamental rights of the citizens. It is made clear therefrom that even if the proceedings inside the House are in violation of other constitution provisions such as Article 14, 19 & 21, it cant escape the Judicial Scrutiny as all these Articles commence with the word subject to the provisions of this constitution. Therefore, courts have judicial power to review the decision of the House if they are tainted with malafides, gross illegality, irrationality violation of constitutional mandate, non-compliance with rules of justice and perversity and apart from that In Parliament to mean during the sitting of Parliament and in the course of Business of Parliament. Thus what are the powers and privileges conferred by Article 194(3) second part are deemed conferred even to continue from the above amendment in 1978, are to be read with reference to the rules made by the House of Legislature in exercising its authority under Article 208(1) of the Constitution of making rules for regulating its procedure and conduct of its business, which phrase conduct of business is comprehensive enough to say the same includes in the exercise of the powers, privileges and immunities of the House and suffice to say, same are defined under the first part of Clause(3) of Article 194, irrespective of no Parliamentary legislation by 1978 or of even now, from what Article 13(3) defines Law includes rules, regulations and notifications, though said rules are not covered by existing law under Article 366(10) r/w. Articles 372&372A. For more clarity Article 13(3) is reproduced hereunder:
In this article, unless the context otherwise requires law includes any ordinance, order, byelaw, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas Subject to the above and subject to any further discussion; even coming to the position in England on the powers of the House of Commons by 1950, the Halsbury`s Law of England reads very clearly in this regard as follows:
37. Members of Parliament: Except in relation to anything said in debate, a member of the House of Lords or of the House of Commons is subject to the ordinary course of Criminal justice; the Privilege of Parliament does not apply to criminal matters.
It was what exactly the Calcutta High Court laid down way back in 1951 in the case of Suresh Chandra Banerji Vs Punit Goola , and by the Supreme Court in the constitution bench expression in Amarinder Singh, though it did not refer above mentioned Article 37 of the Halsburys Laws of England on the privileges in respective of the House of Commons by 1950.
VIII. Scope of this privilege is explained in the decisions that:
8(aam). In Suresh Chandra Banerji supra, a member made a speech in the West Bengal Legislative Assembly. A newspaper published a report of the proceedings of the House including the speech. The complainant filed a complaint before the Chief Presidency Magistrate against the News Paper, alleging said speech contained matter highly defamatory to him and the News Paper by publishing the speech had defamed him. The Calcutta High Court ruled that the member who had made the speech in the House could not be prosecuted for uttering the words complained of. But as the reports of the said speech in the News Paper were not published by or under the authority of the State Assembly, Article 194(3) had no application whatsoever. The Calcutta High Court held thereby that have to apply the criminal law of the land and unless reports of the proceedings in a Legislative Assembly are given a privilege by Indian Law then we can not possibly extend the principle of Wason Vs. Waltar to proceedings in the country". Ultimately the News Paper was charged under Sec.500 I.P.C. for defamation. It may be noted that in Wason vs. Waltar case during the debate in the House of Lords, allegations disparaging to the character of the plaintiff were spoken. A faithful report of the debate was published in the Times News Paper. The plaintiff sued the Times for libel. The Court dismissed the action saying that the advantage to the community from publication of the proceedings of a House is so great that the occasional inconvenience to the individual arising from it must yield to the general good. Thus a fair and faithful report of the proceedings of a House is not actionable in Britain.
8(aan). However, by 1951 the law in India was different and so the Calcutta High Court did not wish to apply the principle in Wason vs. Waltar case. No doubt, the above Judgment created dissatisfaction among the public and it was felt that many advantages would accrue to the community if the News Papers were enabled to publish a reports of proceedings of Parliament in good faith. Bowing to the public demand, the Indian Parliament had enacted the Parliamentary Proceedings (Protection of Publication) Act, 1956 which was akin to Art.361-A. This Act intended to provide security to the faithful publication of the proceedings of a House. Some State Legislatures enacted laws similar to the above Central Act. While so during emergency, Mrs. Indira Gandhi's Government repealed the Parliamentary Proceedings (Protection of Publication) Act of 1956, on the pretext of protecting the high dignitaries from defamatory publications in the press, though they related to reports of Parliament. After Janata Government came into power they re-enacted the Act.
8(aao). Not only that, in order to give said Act, a Constitutional footing, Article 361-A has been inserted through the 44th Amendment Act, 1978. Article 361-A reads as follows:
(1) No person shall be liable to any proceedings, civil or criminal, in any Court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature, of a State, unless the publication is proved to have been made with malice.
Provided that nothing in this clause shall apply to the publication of any report of the proceedings of a secret sitting of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature, of a State.
(2) Clause(1)shall apply in relation to reports or matters broadcast by means of the wireless telegraphy as part of any programme or service provided by means of a broadcasting station as it applies in relation to reports or matters published in a newspaper.
Explanation: In this article, "newspaper" includes a news agency report containing material for publication in a newspaper.
The above article applies to Parliament and State Legislatures and it makes no difference between civil and criminal proceedings. Being a Constitutional provision it would override Sec.499 IPC. However, the immunity under this Article does not apply to the publications of any report of the proceedings of a secret sitting of any House of Parliament or of any State Legislature.
8(aap). As the issue on hand in present writ petition of the two petitioners against the Telangana Legislative Assembly and others supra is not in relation to the scope of Article 361-A no more discussion is required but for to say what the press clippings showing different versions are covered by the protection of the Article and the Act and therefrom to consider no consistency of what was transpired for any alleged incident much less of its gravity in the four walls on 12.03.2018 when the Honble Governor was addressing both the Houses in the Pre- Budget Speech.
8(aaq). In 1959 in M.S.M.Sarma vs. Sri Krishna Sinha , on the facts thus, in the Bihar Legislative Assembly on 30.5.1957 during budget discussion, one member Maheswar Prasad Narayan Sinha in his speech, made scathing remarks against Chief Minister on the issues touching the style of his functioning, his being guided by one Maheswar Prasad Sinha the propriety of appointing said M.P.Sinha as Khadi Board Chief etc., Subsequently his speech was published in toto in the leading news daily named 'Search Light'. The writ petitioner M.S.M.Sarma was its editor. Even before the publication, certain parts of the speech except questioning the propriety of appointing M.P.Sinha as Khadi Board Chief were expunged from the record at the behest of the speaker of Assembly. Despite this, entire speech was published in the newspaper against which the House Committee upon motion served show cause notice on the petitioner for breach of privileges. Hence the petitioner filed the writ petition the House Committee before Supreme Court contending that the said notice was violation of petitioner's fundamental right to freedom of speech and expression under Article 19(1)(a) and personal liberty under Article 21. It may be noted that Article 361.A was not introduced by then and hence probably the Petitioner did not take shelter under Article 361.A, leave about the Parliamentary Proceedings (Protection of Publication) Act, 1956 if at all just came into force by then. The House Committee contended that the offending publication was not in accordance with the authorized report of the proceedings in the House in that it contained even those remarks which were expunged by the order of the speaker. In that context two questions came up for consideration before Supreme Court:
a) Has the House of a legislature the privilege under Article 194(3) to prohibit entirely the publication of the publicly seen and heard proceedings that took place in the House or even to prohibit the publication of that part of the proceedings which had been directed to be expunged?
b) Do the privileges of the House under Article 194(3) prevail over the fundamental right of the petitioner under Article 19(1)(a)?
The Supreme Court by a majority judgment answered the above questions as follows:
a) Regarding question No.1 it was held that the later part of the Article 194(3) confers all these powers, privileges and immunities on the House of the Legislature of the State. Our Constitution clearly provides that until Parliament or State Legislature makes a law defining the powers, privileges and immunities of the House, they shall have all the powers' privileges and immunities of the House of Commons as at the date of commencement of Constitution and yet to deny them those powers, after finding the House of Commons had them at the relevant time, will be not to interpret the Constitution but to remake it.
b) Regarding the second question; the Supreme Court held that Articles 19 & 194 have to be reconciled and the only way of reconciling the same is to read Article 19 as subject to the later part of Article 194(3). The provisions of Article 19 which are general must yield to Article 194(3) which is special. Thus the Supreme Court upheld the privileges of the Parliament and dismissed the writ petition.
8(aar). In 1960, the Petitioner-Sharma filed another writ petition urging the Supreme Court to reconsider its earlier decision, which was dismissed mainly on the principle of resjudicata . Thus, as on the end of 1960 the law of the land speaks from the above that Articles 19 & 194 have to be reconciled and the only way of reconciling the same is to read Article 19 as subject to the later part of Article 194(3). In fact these expressions did not speak even all fundamental rights are to be read subject to the later part of Article 194(3).
8(aas). Same is the position of law even in 1961. In Jateesh Chandra Ghosh vs. Harisadan Mukharjee & Others , Dr.Jateesh Chandra Ghosh-appellant, who was a member of West Bengal Legislative Assembly, once gave notice of his intention to ask certain questions in the Assembly which were disallowed as per the rules of procedure for the conduct of business of assembly. He was informed of this fact. Thereupon the appellant published the questions that had been disallowed in a local journal called 'Janamat'. The first respondent who was a sub-divisional Magistrate, whose conduct was the subject matter in the proposed questions, filed a complaint u/s 500 IPC against the appellant and the editor of the daily alleging that the appellant had made and published scandalous imputations to harm the reputation of the complainant. The appellant by way of a preliminary objection raised the question of his absolute privilege and immunity from prosecution under the provisions of Constitution. The learned Magistrate over ruled the objection holding that the privileges claimed were not unqualified. The appellant moved the High Court and the same also dismissed his petition. Hence he moved the Supreme Court. The point for consideration was whether there was an absolute privilege in favour of member of the House under Article 194 and hence he could not be prosecuted for having published the questions he sought to put but had been disallowed by the speaker. The Supreme Court after observing the legal position in England has held that in England in respect of the privileges and immunities of the House of Commons there is no absolute privilege attaching to the publication of extracts from proceedings in the House of Commons. So far as a member of House of Commons is concerned, he has an absolute privilege in respect of what he has spoken within the four walls of the House, but there is only a qualified privilege in his favour even in respect of what he has himself said in the House, if he causes the same to be published in the public press. The case of publication of proceedings of Parliament not under the authority of the House stands on the same footing as the publication of the proceedings in Courts of Justice. Ultimately the Supreme Court held that the appellant had no absolute privilege and dismissed the appeal.
8(aat). In Special Reference No.1 of 1964, five questions were referred to the Supreme Court for its opinion. It was from the serious situation arose out of the proceedings of the Utter Pradesh Legislature, the Judiciary was made involved, from the Legislature even to go to the extent of proceeding in contempt against two learned Judges of the Allahabad High Court, the matter was referred to the Supreme Court and the questions involved were thoroughly examined and answered by the Seven Judge Constitution Bench of the Supreme Court, which still holds the field, which I may point out with great respect that the law laid down while answering the reference in the judgment is unique in the Judicial history of the Supreme Court, even same is explained to some extent if at all in the later majority Judgment of 4:1 in Raja Ram Pal supra; and no doubt that Raja Ram Pal was again explained and clarified in the later (5JB) expression in Amarinder Singh supra on the power of expulsion is only to exercise in a very exceptional case and the power of Judicial-review over correctness of the actions of the parliament or state legislature is available to the superior Courts.
8(aau). For more clarity, the Presidential reference arisen in 1965 was on the following facts: The Legislative Assembly of Utter Pradesh opined on 14th March 1965 that one Keshav Singh of Gorakhpur committed contempt of House by causing breach of privileges of its Member Narsing Narayan Pande by printing and publishing a pamphlet. The House further found that Keshav Singh committed contempt also by writing a disrespectful letter to the Speaker. Accordingly the House ordered that Keshav Singh be detained in District Jail, Lucknow for 7 days. While so Keshav Singh's Counsel filed a Writ Petition before Allahabad High Court contending that his detention was illegal and without any authority. The Court passed an order for his release and posted the matter for further hearing. The Government Advocate informed this fact to the Secretary to Government. The House then proceeded to take action against the two Judges who passed an order for release of Keshav Singh and also against the Advocate. The Keshav Singh who was released was ordered to be taken into custody and confined in District Jail for the remaining term of his imprisonment. The two Judges knowing about the resolution of the House filed separate Writ Petitions stating that the resolution of the House was illegal and that the order of release made by the Judges was in exercise of their jurisdiction. They prayed for setting aside the resolution passed by the House. Apprehending that the developments may give rise to serious problems, a Full Bench of the Allahabad High Court consisting 28 Judges passed an order restraining the Speaker from issuing a warrant in pursuance of the directions of the House and restraining the Government of U.P. from executing the said warrant. Pursuant to this order, the warrants against the two Judges and the advocate were withdrawn by the House, but the House put an obligation on the Judges and Advocate to appear before the House and offer their explanation for the contempt of the House. At that stage the President of India referred the matter to the Supreme Court as serious differences arose between High Court and State Legislature.
The questions referred to the Supreme Court under this reference read as follows:
(1) Whether, on the facts and circumstances of the case, it was competent for the Lucknow Bench of the High Court of Uttar Pradesh, consisting of the Hon'ble Mr. Justice N.U. Beg and the Hon'ble Mr. Justice G.D. Sahgal, to entertain and deal with the petition of Mr. Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Mr. Keshav Singh on bail pending the disposal of his said petition?, (2) Whether, on the facts and circumstances of the case, Mr. Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid, Mr. B. Solomon, Advocate, by presenting the said petition and the said two Hon'ble Judges by entertaining and dealing with the said petition and ordering the release of Shri Keshav Singh on bail pending disposal of the said petition committed contempt of the Legislative Assembly of Uttar Pradesh?, (3) Whether, on the facts and circumstances of the case, it was competent for the Legislative Assembly of Uttar Pradesh to direct the production of the said two Hon'ble Judges and Mr. Solomon, Advocate, before it in custody or to call for their explanation for its contempt?, (4) Whether, oh 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. 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?, and (5) Whether a Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the Petitioner or issuing any process against the Petitioner for its contempt or for infringement of its privileges and immunities or who passes any order on such petition commits contempt of the said Legislature and whether the said Legislature is competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities?.
While hearing the parties in the matter by the Constitution Bench of the Supreme Court, for answering the reference, though Mr.Seervai, the learned counsel for the House-(Legislative Assembly of the State of Uttar-Pradesh) argued that the House itself can decide what are the privileges under Article 194 and hence it is not bound by the opinion of the Court relating to the existence and extent of the privileges, the Supreme Court repelled said argument and held that the Judiciary is authorised to adjudicate upon the issue but not the legislature itself. In other words it repelled the contention of a Court has no power to give ruling on the privileges under Article 194.
8(aav). The Supreme Court Constitution Bench supra decided another important aspect raised of whether Article 194, precedes Fundamental Rights?. In other words whether the House can claim privileges though they are inconsistent with the Fundamental rights of the individuals?. The Supreme Court referred its earlier decision of 1959 in M.S.M.Sarma supra and observed that though said decision was in favour of the legislature, it relates to precedence of Article 194 over Article 19, but not over Article 21 and that said decision did not lay a general proposition that whenever there is a conflict between Article 194(3) and any of the provisions of fundamental rights, the latter must always yield to former.
8(aaw). After a detailed consideration of the Constitutional provisions, Constitutional conventions and decisions of the Globe, the Judgment was delivered by the Seven Judges Constitution Bench, which is a landmark in respect of the judgments of the Supreme Court of India, which answered the questions raised supra as follows:
(1) On the facts and circumstances of the case, it was competent for the Lucknow Bench of the High Court of Uttar Pradesh, consisting of N.U. Beg and G.D. Sahgal, JJ., to entertain and deal with the petition of Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Keshav Singh on bail pending the disposal of his said petition.
(2) Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid, Mr. B. Solomon, Advocate, by presenting the said petition, and the said two Hon'ble Judges by entertaining and dealing with the said petition and ordering the release of Keshav Singh on bail pending disposal of the said petition, did not commit contempt of the Legislative Assembly of Uttar Pradesh.
(3) It was not competent for the Legislative Assembly of Uttar Pradesh to direct the production of the said two Hon'ble Judges and Mr. Solomon, Advocate, before it in custody or to call for their explanation for its contempt.
(4) It was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of said two Hon'ble Judges and Mr.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; and (5) In rendering our answer to this question 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. A Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the Petitioner for its contempt, or for infringement of its privileges and immunities, or who passes any order on such petition, does not commit contempt of the said Legislature; and the said Legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. In this answer, we have deliberately omitted reference to infringement of privileges and immunities of the House which may include privileges and immunities other than those with which we are concerned in the present Reference.
8(aax). Even regarding any priority of privileges over Judicial review, it was held that:
The Privileges conferred under Articles 105 & I94 are no doubt adopted from British House of Commons. The privileges are conferred basically to enable the representatives to espouse the cause of people freely and fearlessly in the legislative Houses. Adjudication of such a dispute against it 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(3) 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. Let us first take Article 226. This Article confers very wide powers on every High Court throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate case 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.
8(aay). It was further held categorically that 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.
8(aaz). It was therefrom authoritatively concluded by holding that if the power of the High Courts under Article 226 and the authority of Supreme Court under Article 32 are not subject to any exceptions, then it would be futile to contend that, a citizen cannot move the High Courts to invoke their jurisdiction even in cases where his fundamental rights have been violated. 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). 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, it cannot be deemed to have been included under the latter part of Article 194(3) of the Constitution. On the scope of Article 212, the above expression is crystal clear that any illegality even of procedure would become examinable by the Courts by entertaining writ petitions and to pass interim orders where necessary. Similarly and in fact more so any action (other than mere irregularity of procedure) which contravenes any other law or a provision of the Constitution is obviously within the exclusive jurisdiction of the Superior Courts as held supra.
8(aaaa). Above discussion covered so far the privileges as laid down in the Constitution under Articles 105, 194 and 212 and the protection accorded to the persons making publications of the proceedings of the legislative houses under Article 361-A and the Judicial interpretations on the issue of breach of privileges versus the fundamental rights of the violators and the power of Judicial-review and what the Supreme Court Constitution Bench held in special reference No.1 of 1964 (Keshav Singh) supra by explaining of what in M.S.M.Sarma's case in 1959 held by it earlier of the freedom of speech of an individual is subject to the special privilege under Article 194 is not to overcome the fundamental and other Constitutional rights protection, hence when the personal liberty of an individual is at stack in exercise of privileges, the Court will have the power of Judicial- review.
8(aaab). In special reference No.1 of 1964 supra, the Supreme Court in its advisory jurisdiction, thus ruled that the quasi- Judicial/Judicial action by the Legislature imposing a punishment must be in conformity with the safeguards of due process where the liberty of citizen is in jeopardy and that whether the liberty has been infringed illegally or not, can also be gone into by the Constitutional Courts. Such Courts when they exercise jurisdiction in entertaining an application or in setting aside a penal action imposed by a legislative body, could not be held to be incompetent. Thus having distinguished the earlier decisions in M.S.M.Sarma supra, the Constitution Bench of the Supreme Court in special reference No.1 of 1964 categorically held that if a citizen complains that he was deprived of his personal liberty not in accordance with law, but by capricious or mollified reasons, the Court will have to examine the reasons and correctness of the action and pass orders having the power of Judicial review by sitting against such impugned action, including to pass any interim orders.
8(aaac). In 1967, before a Division Bench of the Madhya Pradesh High Court, in Yeshwant Rao Meghawale Vs. Madhya Pradesh Legislative Assembly and Others , the facts were that, Shri Ram Swaroop Khare, one of the members of the Vidhan Sabha, was obstructing the business of the House and defying the Chair. When motion for the suspension of his service from the House was moved, some opposition members created disorder and also obstructed the Marshal and the security force from taking away from the House another member who had been asked by the Speaker to leave the House. During the course of this disturbance, the writ Petitioner, leaving his seat ran to the Dias: jumped on it and assaulted the Deputy Speaker who was presiding at that time. Consequently, the House had to be adjourned. When the House re-assembled, the motion suspending Shri Khare was carried. This was followed by more obstruction by some members and disorder. The next day, when the Deputy Speaker named the five members of the Assembly including the Petitioner for their conduct and behaviour during the previous day's sitting, another member suddenly left his seat, came in front of his desk and abused the Chair and hurled a Chapal at the Deputy Speaker. Under these circumstances, a motion for expelling three members from the House was passed. It was in the grave facts held that:
The language of Article 194(3) is plain enough to show that whenever a power or 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.
What the Division Bench further held is that, 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; but where one of the undoubted privileges of the House is infringed, then the Courts cannot interfere with the decision of either House and it is for the House to Judge of the occasion and of the manner of its exercise. The Division Bench however, without considering as to the decision is mere erroneous by any procedural irregularity protected by Article 212 or illegal including on procedural illegality, held as if that once a privilege is found to exist, it is for the House to Judge of the occasion and of the manner of its exercise and the High Court cannot interfere with an erroneous decision by the House or its Speaker in respect of a breach of its privilege and this proposition cannot be disputed in view of the decision of the Supreme Court in 1959 in M.S.Sharma, though the later Constitution Bench expression in special reference No.1 of 1964 of Keshav Singh supra explained M.S.Sharma supra. Thus to the above extent this Division Bench expression of Madhya Pradesh is hit by sub- silentio if not per-incuriam.
The Division Bench stated, first two clauses of Article 194 deal with freedom of speech in the Legislature and immunity from any proceedings in any Court in respect of anything said or any vote given by a member in the Legislature or in any committee thereof and immunity to all persons in respect of the publication by or under the authority of the Legislature of any report, paper, votes or proceedings. Clause(3) of Article 194 (as was prior to 1978 amendment) out of its two parts, first part enables the Legislature to define by law its powers, privileges and immunities and of the members and the committees of a House of the Legislature. There is till now no such legislation. The second part provides that until the powers, privileges and immunities of the House are so defined, the powers, privileges and immunities of the House 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 the Constitution. The language of Article 194(3) is plain enough to show that whenever a power or 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 recognized by the English Courts. This enquiry can clearly be by the Court. The Division Bench further stated that: It is true that it is the privilege of the House of Commons to provide for its own proper Constitution as established by law. This privilege, as stated in May's Parliamentary Practice at page 175, is expressed in three ways: "first by the order of new writs to fill vacancies that arise in the House of 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." It is true that under our Constitution the State Legislature has no such powers. Having so stated, however opined that: 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. It is thus plain from the above statements contained in May's Parliamentary Practice and the instances mentioned in the book of members expelled from the House of Commons, that the House of Commons exercises the power of expelling a member not because it has the power to regulate its own proper Constitution but because it finds it necessary for its proper functioning, protection and self-preservation to expel a member who has offered obstruction to the deliberations of the House during its sitting by his disorderly conduct or who has conducted himself in a manner rendering him unfit to serve as a member of the Parliament. These statements leave no doubt that the rights and privileges, which the House of Commons has, are necessary to maintain its independence of action and dignity of its position; that it has the privilege of completely controlling the conduct of its members; and that the right which the House of Commons has of providing for its own proper Constitution is in addition to the privileges it has of completely controlling the conduct of its members one of the ways in which the conduct of its members is controlled by the House of Commons is by exercise of the power of expulsion against him. When a member is expelled by a House, he does not become subject to any disqualification. He is entitled to contest the election again and it is open to his constituency to re-elect him. Merely because those articles do not provide for the seat of a member becoming vacant on his expulsion, it does not follow that the Legislature has no power to expel a member and render his seat vacant. Indeed, as when a member is expelled, his seat becomes vacant as a result of his expulsion and not because of any disqualification, no provision for vacation of seats as a result of expulsion could have been made in Articles 190 and 191 which deal with disqualifications of members. Therefore, the argument of the M.P.Assembly could not claim the privilege of creating a vacancy by expelling a member is altogether fallacious. There is nothing in the Constitution affording any ground or justification for subtracting from the powers, privileges and immunities declared as belonging to the State Legislature the power of expelling a member having the result of making vacant the seat of the member expelled. The absence of a rule is in no way indicative of the fact that the Legislature has not the power of expelling member rendering his seat vacant or of precluding the exercise of the power.
8(aaad). In this connection it would be pertinent to refer to the observation of the Supreme Court in special reference No.1 of 1964, while dealing with Article 194(3) (which was quoted with approval even in the Constitution Bench expression of the Apex Court in 1998 in P.V. Narasimha Rao supra) that:
"This clause requires that the powers, privileges and immunities which are claimed by the House must be shown to have subsisted at the commencement of the Constitution, i.e., on the 26th January, 1950. It is well known that out of a large number of privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was recognized by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons, but was not recognized by the English Courts, it would still be upheld under the later part of Clause(3) only on the ground that it was in fact claimed by the House of Commons. In India, this Court said, the Dominant characteristic of the British Constitution could not be claimed. The supremacy of the Constitution was protected by an Independent Judicial body, which was the interpreter of the scheme of distribution of powers. It was difficult for this Court to accept the argument that the result of the provisions contained in the later part of Article 194(3) was intended to be to confer on the State Legislatures in India the Stats of a Superior Court of record. It was essential to bear in mind the fact that the status of superior Court of record which was accorded to the House of Commons was based on historical facts. It was a fact of English History that Parliament had been discharging Judicial functions and the House of Lords still continued to be the Highest Court of law in the Country. The Legislative Assemblies in India never discharged any judicial functions and their historical and Constitutional background did not support the claim that they could be regarded as Courts of record in any sense. The very basis on which English Courts agreed to treat a general warrant issued by a superior Court of record was absent in the case of a general warrant issued by a State Legislature in India."
8(aaae). The Division Bench of M.P. High Court however in arriving the conclusion, did not find as to the power of expulsion of its members to exercise by the House of commons was in subsistence by 26th January 1950 with its recognition by the English Courts, though same is a pre-requisite as per the Constitution Bench expression of the Supreme Court in special reference No.1 of 1964 (Keshav Singh) supra. The Division Bench of M.P. High Court did not at all properly consider even in other respects the binding precedent in Keshav Singh supra of what it laid down the law very clearly in its advisory Jurisdiction by distinguished the earlier decisions in M.S.M.Sarma supra, by holding that the quasi-Judicial/ Judicial action by the legislature imposing a punishment must be in conformity with the safeguards of due process where the liberty of citizen is in jeopardy and that whether the liberty has been infringed illegally or not, can also be gone into by the Constitutional Courts. Such Courts when they exercise Jurisdiction in entertaining an application or in setting aside a penal action imposed by a legislative body could not be held to be incompetent. If the power of the High Courts under Article 226 and the authority of Supreme Court under Article 32 are not subject to any exceptions, then it would be futile to contend that, a citizen cannot move the High Courts to invoke their Jurisdiction even in cases where his fundamental rights have been violated. 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). Therefore, it is clear to conclude 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), Judicial-review lies. Even on the scope of Article 212, any illegality even of procedure would become examinable by the Courts. Similarly and in fact more so any action (other than mere irregularity of procedure) which contravenes any other law or a provision of the Constitution is obviously within the exclusive Jurisdiction of the Superior Courts for Judicial-review. It is further clear from the Division Bench of M.P. High Court that in the Madhya Pradesh Legislative Assembly, there were by then of the year, 1967; no rules framed under Article 194(3) first part or under Article 208(1) to read as part of the procedure in exercise of the power under Article 194(3), and what the power of expulsion derived from the House of Commons protected by Article 194(3) second part if any thereby could be exercised. Coming to correctness of the further observation of the Division Bench of M.P. High Court, of the powers, privileges and immunities vested in the State Legislature by virtue of Article 194(3) are not contingent upon a House of Legislature exercising its authority under Article 208(1) of the Constitution of making rules for regulating its procedure and conduct of its business, and Article 194(3) has an operation which is independent of the exercise of the power under Article 208(1), is only its opinion unguided by any authority and not even arrived the opinion by combined reading of the provisions with reference to other relevant Articles including Article 13(3) of the Constitution. Therefore, it can be concluded 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) and what the Division Bench of M.P. High Court concluded supra is not correct. It is needless to say what the earlier Division Bench of the Madhya Bharat High Court held categorically was that the powers and privileges of the House of Commons will only apply to the State Legislature if they are not repugnant to the Constitution of India. It was also held by a Division Bench of the Composite Andhra Pradesh High Court of the difference between the British Parliamentary Practice of the House of Commons to the Indian Legislatures is that House of Commons provides for Constitution of House whereas in India provisions govern the Constitution of Legislative Assembly of a State and of the Parliament as House of the people. Further the Supreme Court in the special Reference No.1 of 1964 supra held Article 208(1) provides that a House of the legislature of a State may make rules for regulating, subject to the provisions of the Constitution on procedure and the conduct of business. This provisions makes it perfectly clear that if the House were to make any Rules as prescribed by it, those rules would be subject to the fundamental rights guaranteed in Part III of the Constitution.
8(aaaf). Same view of the special Reference No.1 of 1964 (Keshav Singh) was even more forthrightly enunciated by Chief Justice Bhagwati, then speaking for the Division Bench of Gujarat High Court in 1970 in Chhabildas Mehta vs The Legislative Assembly that:
*******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 prevails 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 later 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.
8(aaag). In 1977 the Full Bench of the Punjab & Haryana High Court in Hardwari Lal Vs. The Election Commission of India, held in one voice including by minority view that the state legislature is authority amenable to an appropriate writ, order or direction under Article 226 of the Constitution in suitable cases.It is 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 a member, if so whether the order of expulsion is within the extent to which the privilege or the power resides in the House. The limitation on exercise of all powers, privileges and immunities enjoyed by the Commons available to a state legislature in India are (i) those which in the nature of things no Indian legislature can claim because 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 provisions of the constitution are come into conflict even impliedly with some prohibitions contained in the constitution or are not reconcile with the machinery or scheme of the constitutionThe High court cannot decline to listen to any allegation of malafides against the house as a whole in an appropriate case and dismiss the petition containing those allegations at the threshold. The existence of malafides would render null and void the actions even of the highest executive within the State, as also of the Government and also the judgments rendered by a Court of law. Each and every authority in the State is bound by this rule and the legislature is also within the ambit of this wide ranging terminology. Held, (per majority) that 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. The plain method of construing Article 194(3) of the Constitution, therefore, is the usual and the settled one of not reading something into it which is glaringly anomalous, unworkable and irrational.Thus, all the privileges, powers and immunities of the House of Commons cannot be deemed as written in pen and ink into the Constitution of India....... The State Legislatures in India are completely subservient to and controlled by the written provisions of the Constitution of India; materially and substantially subservient to Parliament and subservient to all Parliamentary legislation authorised by the Constitution in regard to the composition and the regulation of the membership thereof. The State Legislatures therefore, under Article 194(3) of the Constitution or otherwise have no power to provide for or regulate their own Constitution unlike the House of Commons in England and thus 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. This privilege does not and indeed cannot by virtue of Article 194(3) of our Constitution descend to the State Legislatures in India. Even otherwise such a power of expulsion by majority is inherently alien to the other tenets of our written and exhaustive constitution. Therefore, inevitably a Vidhan Sabha 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 and suspension from the service of the House for the Session and lastly the key stone in this context being the power to commit the contemnor to prison.......... The constitution makers have themselves chosen to protect under Article 212(1) of the Constitution only an irregularity of procedure within the Legislature from the province of examination by the superior Courts. By necessary implication, therefore, any patent illegality even of procedure would become examinable by the Courts. Similarly, and in fact 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 as held by the Supreme Court in the U.P. Legislatures case...... The extreme view that the State Legislatures are themselves the sole Judges of their privileges, powers and immunities and any action taken by them within the four walls of the House is barred from examination by a Court is, therefore, not tenable. It also quoted with approval Chhabildas Mehta of 1970 supra in its allowing the writ petition, holding 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.
8(aaah). In State of Karnataka Vs Union of India & another it was held by the Supreme Court (7JB) Constitution Bench almost in same line to the above that:
The particular clause (3) of Article 194 has to be read in the context of other clauses of Article 194 as well as the remaining provisions of the Constitution as indicated by Article 194 (1) ........Article 194 reproduces the terms of Article 105 with this evident difference that, whereas Article 194 is applicable to Houses of a State Legislature and Article 105 applies to the two Houses of Parliament. Each of these two Articles subjects "the powers, privileges and immunities" of each House as well as all its Members and its Committees not only to the laws made by the appropriate legislature, but also to all the other provisions of the Constitution. It is clear, from these Articles, that they do not apply to legislative powers of Parliament or of the State Legislatures which are specifically dealt with by articles 245 to 255 of the Constitution. Articles 105 and 194, far from dealing with the legislative powers of Houses of Parliament or of State Legislatures respectively, are confined in scope to such powers of each House as it may exercise separately functioning as a House. It also covers immunities and privileges of each House as a House as well as of its members.
The correct principle of interpretation to apply is "no scitur a sociis", or, in other words, the word "powers" gets its meaning and colour not only from its context but also from the other words used in association with it. It is evident, from the Chapter in which Article 194 occurs as well as the heading and its marginal note that the "powers" meant to be indicated here are not independent. They are powers which depend upon and are necessary for the conduct of the business of each House. They cannot also be expanded into those of the House of Commons in England for all purposes. For example, it could not be contended that each House of a State Legislature has the same share of legislative power as the House of Commons has, as a constituent part of a completely sovereign legislature.
Under our law it is the Constitution which is sovereign or supreme. The Parliament as well as each Legislature of a State in India enjoys only such legislative powers as the Constitution confers upon it. Similarly, each House of Parliament or State Legislature has such share in Legislative power as is assigned to it by the Constitution itself. The powers conferred on a House of a State Legislature are distinct from the legislative powers of either Parliament or of a State legislature for which, as already observed, there are separate provisions in our Constitution. We need not travel beyond the words of Article 194 itself, read with other provisions of the Constitution, to clearly reach such a conclusion. There is, if we may say so, considerable confusion still in the minds of some people as to the scope of the undefined "powers, privileges and immunities" of a House of a State Legislature so much so that it has sometimes been imagined that a House of a State legislature has some Judicial or quasi-Judicial powers also quite apart from its recognised powers of punishment for its contempt or the power of investigations it may carry out by the appointment of its own committees. Arguments of the kind which have been sometimes advanced in this country could not have been advanced if it was clearly understood that, even in England, where the Constitution is largely conventional, the exercise of Judicial powers directly by Houses of the legislature, including powers such as those of impeachment, are practically obsolete. Whatever remained of the power enjoyed once by the High Court of Parliament, when the King could himself sit, as a part of Parliament, with the Houses of Parliament, to administer Justice is now concentrated in the House of Lords, exercised through a Committee of Law Lords.
Every power of the House of Parliament in England is subject to an act of Parliament. The Act with which we are concerned is an Act of our Parliament. We have to satisfy ourselves by reference to our Constitution and not the British Constitution that the provisions of the Act before us are within the legislative competence of Parliament. But, if we could ignore the provisions of our Constitution relating to distribution of legislative powers, which is what the arguments based on Article 194(3) seem to imply, we would be left with no yard-stick for determining the legislative competence of our Parliament. It would be absurd to take that view simply because that is the position in England. Nobody could, in England, question the validity of an Act of Parliament on the ground that it is in excess of the power vested in a sovereign Parliament to legislate. If we could apply that principle here the Act before us would be a sufficient answer to all argument against its validity. If that principle does not apply in our Country because of the provisions of our Constitution, which constitute Courts Judges of Constitutionality of even Acts of Parliament, we have to test the provisions of the Act on the anvil of express provisions of our own Constitution and not on the erroneously supposed powers of a House of Commons in England which could never ignore or invalidate the provisions of any Act made by the Parliament there although it could play a decisive role in its repeal if it so desired. A source of confusion about the "powers" and "privileges" of the House of Commons even in England was sought to be removed long ago by Sir Erskine May when he pointed out in his "Parliamentary Procedure and Practice', in 1844, that Cokes dictum and Blackstones views, according to which the ordinary law Courts could not Judge matters relating to "Lex Parliament", on the ground that "the High Court of Parliament hath no higher", were out of date even in 17th Century England. He said about such views:
"The views belonged to a time when the distinction between the Judicial and Legislative functions of Parliament was undrawn or only beginning to be drawn and when the separation of the Lords from the Commons was much less complete than it was in the seventeenth century. Views about the High Court of Parliament and its powers which were becoming antiquated in the time of Coke, continued to be repeated far into the eighteenth century, although after the Restoration Principles began to be laid down which were more in accord with the facts of the modern Constitution. But much confusion remained which was not dismissed by the use of the phrase "privileges of Parliament".
Sir Erskine May went on to indicate the three notions resulting from this "confusion of thought" in the course of English Constitutional history. He wrote:"Three notions arise from this confusion of thought-
(1) That the Courts, being inferior to the High Court of Parliament, cannot call in question, the decision of either House on a matter of privilege.
(2) That the lex et conseutudo parliament is a separate law, and, therefore, unknown to the Courts.
(3) That a Resolution of either House declaratory of privilege is a Judicial precedent binding on the Courts."
Now, what learned counsel for the plaintiff seemed to suggest was that Ministers, answerable to a Legislature were governed by a separate law which exempted them from liabilities under ordinary law. This was never the law in England and it is not so here. Our Constitution leaves no scope for such arguments, based on a confusion concerning the "powers" and "privileges" of the House of Commons mentioned in Articles 105(3) and 194(3). Our Constitution vests only legislative power in Parliament as well as in the State Legislatures. A House of Parliament or State Legislature cannot try anyone or any case directly, as a Court of Justice can, but it can proceed quasi-judicially in cases of contempt of its authority and take up motions concerning its "privileges" and "immunities" because, in doing so, it only seeks removal of obstructions to the due performance of its legislative functions. But, if any question of Jurisdiction arises as to whether a matter falls here or not, it has to be decided by the ordinary Courts in appropriate proceedings. For example, the Jurisdiction to try a criminal offence, such as murder committed even within a House vests in ordinary criminal Courts and not in a House of Parliament or in a State legislature. In Smt. Indira Nehru Gandhi v. Shri Rai Narain (1975), this Court held that a House of Parliament cannot, in exercise of any supposed "powers" under Article 105, decide election disputes for which special authorities have been constituted under the Representation of People Act, 1961, enacted in compliance with article 329. Similarly, appropriate provisions for appointments of suitable persons, invested with power to determine, in accordance with a procedure which is fair and just and regular and efficient, for ascertainment of facts on matters of public importance, is provided by the Act. If such provisions are covered by specific provisions relating to legislative competence of Parliament and on any of the items in Central List I or the concurrent List III of the Seventh Schedule of the Constitution, we need not go to other provisions which would, strictly speaking, not be relevant unless they could be relied upon to clearly carve out some exception, operating against such legislative competence.
8(aaai). Thus from the above there is a sweep change in the interpretation and scope of the provisions of the Constitution of India by several subsequent expressions after 1967 on the scope of Articles 105 and 194, particularly by the seven Judges Constitution Bench in State of Karnataka supra and the power of Judicial-review of the Supreme Court of India is traceable to Article l3(1) and (2) and Article 32(I) and of the High Courts to Article 226 of the Indian Constitution, as held in V.G. Row supra and Kesavananda Bharati supra at note 2 at page.1899. The High Courts power of Judicial-review is wider to that of the Supreme Court from the very wordings of the Articles 32 and 226 of the Constitution of India, to say not only confined to fundamental rights violation but also beach of any Constitutional provision, needless to say against the decision of High Court the Supreme Court while sitting in appeal can exercise such wide powers of High Court leave about the Supreme Courts special powers conferred by Articles 136 and 142 of the Constitution of India with more teeth as per need with all elasticity to the extent of necessity. No doubt, where fundamental rights are restricted by law, it will be for the State to establish that the restrictions on fundamental rights imposed by any statute are reasonable within the parameters laid down in part III of the Constitution. The Courts perform a Constitutional function of examining the validity of legislature action because they are vested with that power, and not because they claim supremacy over the legislature. Way back in 1950 itself, in A.K.Gopalan Vs State , the Supreme Court held that the Constitution is supreme and all the three wings have to work as per the Constitutional requirements and power of Judicial-review is inherent in any federal form of written Constitution whether specifically conferred or not, for necessarily infer and act. The Supreme Court laid down in L. Chandra Kumar supra referring to Kesavananda Bharati supra and Indira Nehru Gandhi Vs Raj Narain supra among other that the legislature cannot take away by any law or even by amendment of the Constitution, the judicial review. 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) as laid down in special reference No.1 of 1964 (Keshav Singh) supra. In fact the doctrine of Judicial-review has been more authoritatively added to the list of basic features in the case of Minerva Mills supra, particularly from the observations of Bhagavathi, J. This point was further elaborated by the learned Judge in Sampath Kumar Vs Union of India , that the basic and essential feature of Judicial- review cannot be dispensed with, but it would-be within the competence of Parliament to amend the Constitution so as to substitute in place of the High Court, another alternative institutional mechanism or arrangements for Judicial-review, provided it is not less efficacious than the High Court. Ranganath Mishra, J. who wrote the majority judgment in Sampath Kumar supra, held that Judicial-review by the Court is left wholly unaffected and it was held that as per the spirit of the Constitution, establishment of Tribunals are only as substitutes and not supplements to the High Courts. It was by approving the Dicey's puritanical view of Rule of Law vis--vis Droit Administratif, in establishment of Alternative Dispute Resolution mechanism as an universally accepted common law feature as well as of continental legal systems and also in other jurisdictions, which necessitated by certain compelling circumstances like the need for expert bodies to deal with specialised categories of dispute settlement, the need for cutting down delays in the justice delivery modalities, and docket explosion in the regular Courts of the land. In Maru Ram v. Union of India & Others it was held that all public power, including Constitutional power, shall never be exercisable arbitrarily or malafide and ordinarily guidelines for fair and equal exercise are guarantors of the valid play of power and same quoted with approval in Swaran Singh v. State of U.P. of 1998 and Epuri Sudhakar Vs Govt. of A.P. of 2006 by holding: "we cannot accept the rigid contention of the learned counsel for the third respondent that this Court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily, malafide or in absolute disregard of the finer canons of the Constitutionalism, the by-product order cannot get the approval of law and in such cases, the Judicial hand must be stretched to it."
8(aaaj). Even coming to the finality of action of expulsion of its member as a measure of punishment by the State Legislature not open for judicial review, the answer can be find from the expression of the Supreme Court in Sampath Kumar supra, quoted with approval Lord Denning in Pad field vs. Minister of AFF that "Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a Judicial decision, or a quasi- Judicial decision or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases If the decision-making body is influenced by considerations which ought not to influence it; or fails to take into account matters which it ought to take into account, the Court will interfere. It was apt to quote Chief Justice Marshal in this regard that the Judiciary cannot, as the Legislature may avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful, with whatever doubts, with whatever difficulties, a case may be attended, we must decide, if it is brought before us. We have no more right to decline the exercise of jurisdiction which is given; than to usurp that which is not given. The one or the other is treason to the Constitution.
8(aaak). Even in England, where the principle of Parliamentary supremacy as enunciated by Dicey prevailed for centuries, recent judgments of the judiciary, particularly after the coming into force of the Human Rights Act, 1998 (w.e.f. 2nd October, 2000), have laid down that law has given place to the modern theory that it is the Constitution that is supreme and not any of the three wings. One and half decades ago, Laws LJ, stated in International Transport Roth Gmbh Vs. Home Secretary , in his separate judgment that after coming into force of the UK Human Rights Act, 1998, the British system which was once based on parliamentary supremacy has now moved from the principle to the system of Constitutional supremacy. He quoted Locobucci J of Canada in Vriend Vs. Alberta that after the Canadian Charter of Rights and Freedoms, Canada had moved from Parliamentary supremacy to Constitutional supremacy. He observed:
When the Charter was introduced, Canada went, in the words of Chief Justice Brian Dickson, from a parliamentary supremacy to Constitutional supremacy.
In B.P.Achala Anand V. S.Appi Reddy at page 318, the Supreme Court Constitution Bench observed referring to Law in the scientific era and the theory of dynamic positivism by J.M.Katju; Ciero on Jurisprudence; Justinians Corpus Juris Civilis, Lord Dennings the due process of law and from Harts open texture of Law that:
When jurisprudence is science of law, interpretation is the technology of law..............Law does not remain static or stand still; it does not operate in a vacuum. It moves constantly so as to serve the needs of the time. As social values and norms change; laws too have to be interpreted and recasted. Law is really a dynamic instrument, fashioned by society for the purposes of achieving harmonious adjustment of human relations by elimination of conflicts. An unusual fact situation posing issues for resolution is an opportunity for innovation. Thus, life if law generally speaking, is not logic but experience, which is the basis for development and evaluation of law.
The Division Bench of this Court in M.V.V.S.Chowdary V. State at para 7 observed that Economics without value, aesthetics without expression, ethics without duty, logic without the concept and right without remedy are inconceivable.
The Supreme Court expressions in Ramachandra Ganpat Shinde V. State of Maharashtra state and Satya Brata Biswal V. Kalyan Kumar Kisku , read as follows:
Respect for law is one of the cardinal principles for an effective operation of the Constitution, law and the popular Government.
8(aaal). Thus, from the concept of the Constitutional supremacy in India for all the wings to work within its frame work and parameters provided either expressly or necessary implication from the Constitutional provisions, which is in contra distinction to the erstwhile Parliamentary supremacy in United Kingdom, the Doctrine of Constitutional trust is important in the country and it cannot be disturbed be it by the Legislative or the Executive much less Judiciary, as it is not any one of the 3 wings that supreme, but to uphold will of people; and the Judiciary when raising to the occasion to uphold the provisions of the Constitution to protect its supremacy, it is not a Judicial encroachment or over reach or over activism, but the exercise of duty ordained by the Constitution to uphold it as per the Judicial philosophy to rise to the need. But for that necessitates under the parens-patria principle, to crack the whip to broom over, law could not be developed to the present stage to protect from any abdication of duty by other wings to protect the fundamental and Constitutional rights of citizens. It is because; the Preamble to our Constitution itself proclaims the supremacy of the people of the country. Our Constitutional morality also clearly indicates the duties rather privileges of all the three wings (Executive, Legislative and Judiciary) of the Government within the meaning of State, as functionaries to the people being servants and thus once a decision of any authority is found to be just and reasonable, it gains wide acceptability and constitutes the best authority for implementation of that decision and if it is otherwise, it may require Judicial review. In this regard, there cannot be any little doubt atleast from the expression of the Supreme Court Nine Judge Constitution Bench in the case of State of Kerala v. N.M. Thomas , that the Court like any of the other two wings is also State within the meaning of Article 12 of the Constitution of India. Thus, Court can also act as Parens-Patria, so as to meet the ends of justice. There can be no doubt that if the State action in a particular case amounts to an arbitrary classification or a hostile discrimination which is violative of Articles 14 or 16 of the Constitution, the Court is there to act as sentinel on the qui vive in order to strike down or set aside such an action.
8(aaam). On the duty to protect the sanctity of the Constitution of India, in the book We, the People, published in 1984 by Sri Nani Palkhivala, he reminded us and the generations yet to come in the erudite words that:
The Constitution is not a structure of fossils like a coral reef and is not intended merely to enable politicians to play their unending game of power. It is meant to hold the country together when the raucous and fractious voices of today are lost in the silence of the centuries 8(aaan). It was therefore authoritatively laid down by the Supreme Court in the Minerva Mills Limited supra that: In our country, the Constitution is suprema-lex, the paramount law of the land and there is no authority, no department or branch of the State, which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution. Parliament too is a creature of the Constitution and it can only have such powers as are given to it under the Constitution.
8(aaao). It is also apt to quote in this context on the jurisdiction aspect, the American Supreme Court in Kilbourn v. Thompson that: The House of Representatives 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.
8(aaap). Coming to the expression of the Madras High Court in 1987, in K. Anbazhagan and others V. The Secretary, Tamil Nadu legislative Assembly, Madras, and others :
It was on the factual matrix, admittedly the D.M.K. party of which the writ petitioners are members announced their programme of the D.M.K. party will born pieces of papers containing excerpts, of Part XVII of the Constitution of India which provides for Hindi being the sole official language, to highlight protest against Hindi being the sole official language of the Union. The petitioners, claimed to have taken part in the agitation held on 17-11-1986. On 24-11-1986, the Speaker of the Assembly passed an order that seven members of the Assembly belonging to the D.M.K. party including the petitioners in W.Ps. 857 and 1105 of 1987 could not continue as members for violation of the oath taken by them under Article 188. He forwarded this ruling to the Governor of Tamil Nadu and the Election Commission of India for appropriate follow up action. After the decision of the Speaker the Legislative Assembly met on 22-12-1986 and as already stated 10 members of the D.M.K. party, were expelled from the House. The original resolution of expulsion referred only to three members, but later at the instance-of the leader of the House, the names of the seven persons who were expelled by the Speaker of the Assembly were also included. It refers to the Article 188 read with rule 4(1) of the Legislative Assembly Rules, that amounted to lowering the regard for the Constitution, regard for the House, derogatory to the dignity of the Constitution, dignity of the House and wholly inconsistent with the standards which the House expected from its members and therefore the members were unfit to be members of the House.
The respondents to the petitions are the Secretary, Tamil Nadu Legislative Assembly, the Speaker of the Tamil Nadu Legislative Assembly and the Election Commission of India. The first two respondents viz., the Secretary, Tamil Nadu Legislative Assembly and the Speaker, Tamil Nadu a Legislative Assembly have however declined to accept the notice of these petitions and have not appeared in the Court. The Election Commission of India has appeared but the learned counsel stated before us that he has instructions merely to watch the, proceedings and abide by the orders of the Court.
The principal question argued is that the State Legislature does not have the power to expel a member of the Assembly. Observations in May's Parliamentary Practice, Nineteenth Edition at page 132 say: "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."
Paragraph 1494 in Halsburys Laws of England, Fourth Edition, Vol. 34, reads as follows:-
Power of expulsion: Although House of Commons have delegated its right to be the Judge in controverted elections, it retains its right to decide upon the qualification of any of its members to sit and vote in Parliament.....If in the opinion of the House a Member has conducted himself in a manner which renders him unfit to serve as a member of Parliament, he may be expelled, but, unless the cause of his expulsion by the House constitutes in itself a disqualification to sit and vote in the house, he remains capable of re-election.
Paragraph 1493 reads as follows: Privilege of the House of 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 claim the exclusive right of providing, as it may deem fit, for its own proper Constitution.
Power of expulsion is a part of the power of the House to regulate its own composition, reference is made to the Chapter on Parliamentary Privileges in Constitutional and Administrative Law by O.Hood Philips, Fifth Edition. Out of five privileges of the Commons dealt by the author, in item No.3 on Right of the House to regulate its own composition, the learned author has observed as follows: This privilege covers: (i) the filling of casual vacancies,
(ii) the determination of disputed election returns, (iii) the determination of legal disqualifications of persons returned to parliament, and (iv) expulsion of members who are unfit to sit.
These powers are exercised within the limits left by statute." Dealing with the expulsion of members who are unfit to serve, the learned author has observed as follows: The House may also expel a member who, although not subject to any legal disability, is in its opinion unfit to serve as a member. This is commonly done when a Court notifies the Speaker that a member has been convicted of a serious criminal offence. The House cannot prevent an expelled member from being re-elected, as happened several times in the case of John Wilkes between 1769 and 1774, but it can refuse to allow him to take his seat. Similar principles apply to expulsion for breach of privilege or contempt.
Reference is also made to the judgment of the Supreme Court in the U.P. reference case of Keshav Singh in 1965, that....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. It is hardly necessary to point out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder and impeachments 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 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 power and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House.
The contention was that if the power of expulsion was a part of the power of the House of Commons as to regulate its own composition and the Supreme Court in the U.P. reference case has expressly negatived this privilege in respect of an Indian Legislature under Article 194(3), it must be held that the State Legislature did not have the power to expel a member. Very strong reliance has been placed on the majority decision of the Full Bench of the Punjab and Haryana High Court in Hardwari Lal supra on the authority of the British Constitutional authors, like Anson, Halsbury, Maitland, Wade and Philips Keir and Lawson, Ridges and including the opinion of May and his distinguished editor Sir Barnett Cocks, that 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.... 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. They further held that Articles 190 and 191 of the Constitution of India were exhaustive of the mode in which a seat in the Legislature is to be vacated and of the disqualifications which would necessitate the same and that there was little warrant for adding another mode of vacation of a seat or adding to the list of disqualifications by further giving a discretionary power of expulsion in the State Legislatures themselves...................In view of the basic premises 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.....A seat of an elected member could fall vacant only in accordance with the provisions of Articles 190 and 191 read with Section 8 of the Representation of the people Act. The Constitution was exhaustive with regard to the circumstances in which a seat of an elected member would be vacated. Therefore, a new ground for vacating a seat in the nature of expulsion of the members of the Legislature Assembly was not contemplated by the Constitution.
The Madras High Court supra, referred therefrom chapter II in Mays Parliamentary Practice, Nineteenth Edition, which deals with disqualification for membership of either house and particularly to the observations under the heading other Crimes at page 42 that:
The statutory disqualification which the Forfeiture Act,1870 imposes on any person convicted of treason previously extended to any person convicted off,......... felony and sentenced to death, preventive detention or corrective training or any term of imprisonment exceeding twelve months. Act of 1870, amended by the Criminal Law Act of 1967, abolished the division of Crime into felonies and misdemeanours.position with regard to all criminal convictions has been similar to the position with regard to misdemeanours before its passing. A person convicted of a misdemeanour 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.
It also referred Section 11 of the Representation of the People Act in observing that Expulsion was a disqualification, vis--vis an election which had already taken place, because having been elected the expelled Members of the House was not allowed to sit in the House. Further the conduct referred to in the resolution of Expulsion was a conduct outside the House. Though act of burning a copy of Article 343(1) of the Constitution of India was merely claimed as symbolic expression of disapprobation of Part 17 of the Constitution and fell within Explanation I of Section 2 of the Prevention of Insults to National Honour Act, 1971; the act of burning was violative of the oath of allegiance and in any case violation of oath of allegiance was not an offence of such a nature that it will result in disqualification by way of expulsion and this conclusion can be based on the decision of the Kerala High Court in Kallara Sukumaran v. Union of India .......... Article 188 constitutes a constitutional mandate that the person elected as a member of the Legislative Assembly or the Legislative Council of a State cannot take his seat unless he makes and subscribes an oath or affirmation according to the form set out for the purpose in the Third Schedule, form VII-B. The act of burning or defiling or destroying the Constitution or a part of the Constitution is a breach of this oath, becomes more serious and liable to be condemned when an elected representative of the people who but for the provisions of the Constitution and the Representation of the People Act would not have been able to claim the representative status. It was for the House to decide how to deal with such a member.
The Madras High Court supra observed that the effect of the amendment to Article 194(3) was that whenever a question of privilege arises, the relevant point of time for ascertaining whether a similar privilege was exercised by the House or its members and committees, had to be determined with reference to 20th June, 1979. The Supreme Court in U.P. reference case supra observed as follows:
It is well known that out of a large number of privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was on existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was recognised by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English Courts, it would still be upheld under the latter part of Clause(3) only on the ground that it was in fact claimed by the House of Commons. In other words, the enquiry which is prescribed by this clause is; is the power in question shown or proved to have subsisted in the House of Commons at the relevant time?
If it was not shown English Courts had recognised a particular power or privilege, then said power or privilege would not be available to the Legislature in India under Article 194(3) of the Constitution. Observations made by the Supreme Court in paragraph 34 are that if a particular power was claimed by the House of Commons and it was not recognised by Courts in England, that power would not be available to a Legislature in India, the obvious effect of those observations was that a power which was expressly negatived by the English Court though claimed by the House of Commons cannot be claimed by Legislature in India under Article 194(3) of the Constitution of India. On the Supreme Courts observation supra, which is though a binding precedent, the Madras High Courts observations of it cannot be read as laying down that as long as a power is not expressly recognised by the English Courts that power or privilege did not vest in the House of Commons and consequently that power or privilege was also not available to a Legislature in India. The further comment of it is unthinkable that every power or privilege of the House of Commons or the occasion of its exercise would be tested in a Court of law in England and until so tested the power or privilege was not available, is not correct.
The Madras High Court referred to Ridges Constitutional Law, Eighth Edition, where the learned Author has grouped under two heads- the rights and privileges of the House of Commons at Page 61 as follows: Certain privileges are claimed by the Speaker at the beginning of each Parliament as the ancient and undoubted rights of the Commons, which the Lord Chancellor on behalf of the Crown Most readily confirms. These and other rights may be grouped under two heads. (1).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. These are (a) Freedom from arrest, (b) Freedom of speech, (c) The right of access to the crown and (d) The right of having the most favourable construction placed upon its proceedings. (2). Those not demanded by the Speaker. These are (a) the right to provide for the due composition of its own body, (b) The right to regulate its own proceedings, (c) The right to exclude strangers, (d) the right to prohibit publication of its debates and (e) The right to enforce observation of its privileges by fine, imprisonment or expulsion. The Supreme Court in 1959 in M.S.M.Sharma (supra) at Para 18 approved the observations of the author (Ridges Constitutional Law) referring to the second head (e) of The right to enforce observation of its privileges by fine, imprisonment or expulsion.
In Halsbury's Laws of England, Fourth Edition, Vol.34, in paragraph 1494 it is observed that: "If in the opinion of the House, a member has conducted himself in a manner which him unfit to serve as m Parliament, he may be expelled, but, unless the cause of his expulsion by the House constitutes in itself a disqualification to sit and vote in the House, he remains capable of re-election.
In Ansons Law and Custom of the Constitution Vol.I, Fifth Edition in Chapter IV, the learned author has referred to expulsion on the ground of unfitness to serve at page 182 that: Cases may arise in which a member of the House without having incurred any disqualification recognized 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 way 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. 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.
Dealing with different forms of punishment awarded by the House of Commons, the learned author has observed at page 187: 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 is not possible for us to treat such a power of expulsion as not being available to the Indian Legislature merely on the ground that such powers and privileges, which originally vested in the House of Commons as a part of its right to provide for its own proper constitution as established by law, are negatived by the express provisions of the Constitution of India. What is important is not that the power of expulsion was treated as a part of the power of the House of Commons to regulate its own composition, but that the power of expulsion was in fact exercised by the House of Commons also as a part of the power to punish a member.
....The debate of the Constituent Assembly will show that though members of the Constituent Assembly had expressed their view that instead of keeping the nature of privileges open to discussion, the privileges should be enumerated and laid down expressly as part of Article 194(3), this was not however accepted by the Constituent Assembly and a particular reference was made to Section 49 of the Australian Constitution by Sir Alladi Krishnaswami Iyer, another eminent member of the Constituent Assembly. Referring to the suggestion that the privileges should not be left vague, Sir Alladi pointed out that Article 105(3) did not in any way fetter the discretion of the Parliament. Sir Alladi said: you may start on your own journey without reference to the Parliament of Great Britain. Only as a temporary measure, the privileges of the House of Commons are made applicable to this House. The Madras High Court did not consider the above and particularly the observations in U.P. reference case of 1965.
Section 49 of the Australian Constitution reads as follows: The powers, privileges and immunities of the senate and of the House of Representatives, and of the members and the Committee of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and Committees, at the establishment of the Commonwealth.
When the provision in Article 194(3) was being debated and a similar suggestion was once again made Dr. Ambedkar pointed out that the privileges in relation to Parliament are much wider than the privilege of freedom of speech and immunity from arrest. He then said:
For instance, under the House of Commons powers and privileges it is open to Parliament to convict any citizen for contempt of Parliament and when such privilege is exercised the jurisdiction of the court is ousted. That is an important Privilege. Then again, it is open to Parliament to take action against any individual Member of Parliament for anything that has been done by him which brings Parliament into disgrace. These are very grave matters e.g., to commit to prison.....Dr. Ambedkar then proceeded to observe: It is not easy, as I said, to define what are the acts and deeds which may be deemed to bring Parliament into disgrace. That would require a considerable amount of discussion and examination. That is the reason why we did not think of enumerating these privileges and immunities........But there is not the slightest doubt in my mind and I am sure also in the mind of the drafting Committee that Parliament must have certain privileges, when that Parliament would be so much exposed to calumny, to unjustified criticism that the Parliamentary institution in this country might be brought down to utter contempt and may lose all the respect which Parliamentary institutions should have from the citizens for whose benefit they operate.
Dr. Ambedkar made particular reference to Mays Parliamentary Practice as will be clear from the following paragraph- to follow three courses. One is to adopt them in the constitution, namely to set out in detail the privileges and immunities of Parliament and its members. I have very carefully gone over Mays Parliamentary Practice which is the source book of knowledge regard to the immunities and privileges or parliament. I have gone over the index to Mays Parliamentary Practice I have noticed that practically 8 or 9 columns of the index are devoted to the privileges and immunities of Parliament This is how Article 194(3) came into being. These debates clearly indicate that what was intended to be adopted and that is clearly borne out by the phraseology in Article 194(3) was the powers and privileges of the House of Commons as set out in Mays Parliamentary Practice which undoubtedly included the power of expulsion.
The next question which we must consider is whether there is any provision in the Constitution which negatives this power or with which the power can be said to be inconsistent. Division Bench of the Kerala High Court in Kallara Sukumaran v. Union of India , has taken the view that the Constitution has defined the disqualifications of a member of the Assembly and it is not in the power of Court to change or super add to them, there being no power either expressly conferred or inferable by necessary implication by the Constitution. It was further held that even the violation of oath taken under Articles 164(3) and 183 cannot operate as disqualification as it would amount to adding to the grounds of disqualification provided under the Constitution, and it was impermissible for the Court to import an additional ground or to imply an additional disqualification.
The provision in Article 190(3)(a) is a mandatory provision which provides that if an elected member of a House of the Legislature of a State becomes subject to any of the disqualifications mentioned in Article 191, his seat shall thereupon become vacant. Article 191(1) enumerates the disqualifications, for being chosen as, and for being, a member of the Legislative Assembly or Legislative council of a State, Clause (e) of Article 191(1) refers to a person being disqualified by or under any law made by Parliament. If none of the members of the Legislative Assembly had incurred a disqualification contemplated by Article 191(1) or by Section 8 of the Representation of the People Act, none of the petitioner could be expelled from the House and their seats cannot be declared vacant. It is fallacious as, unless disqualified ceasing doe not arise and as such expulsion to cease without disqualification does not arise. Vacation of seat of the expelled member therefore does not occur as a result of incurring a disqualification as contemplated by Articles 190 or 191(1), but is the direct result of the exercise of a privilege by the Legislature which is neither controlled nor regulated by the provisions of Articles 190 or 191(1) of the Constitution. (At best extends to suspension or expulsion during period of that session and not for rest of elected tenure without disqualification.) The resolution of expulsion was thus founded on a consideration of the totality the conduct which apart from being a violation of the oath, it was not in keeping with the norms expected of a member of a Legislative Assembly and was indeed highly derogatory of the expected norms. The decision of the Kerala High Court in Sukumaran supra was a case in which one of the Ministers in the State of Kerala had, at a party convention held by the Kerala Congress, in a speech aggressively exhorted for a Punjab model agitation directed against the Central Government and three other Ministers stood by him. In writ proceedings it was contended that the speech undermined the sovereignty and integrity of the Indian Union and also subverted the Constitution as by law established. Making such a speech by the Minister, encouraged and stood by three other Ministers, according to the petitioners, amounted to violation of the oath taken by them under Article 164(3) of the Constitution of India as well as violation of the oath taken under Article 188 of the Constitution. This contention was rejected with the observation that the morality or propriety of an undesirable person continuing as a Minister was essentially a political question to be dealt with and initially at the political level such as Chief Minister, the Legislature and the general public holding a watching brief over them and later by the Constitutional functionaries as provided in the Constitution itself and it was held that the Constitution having defined the disqualifications of a member of the Assembly, it was not in the power of the Court to change or super-add to them, there being no power either expressly conferred or inferable by necessary implication by the Constitution. Reference was made to the provisions of Article172. Article172(1) merely provides that 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 said period of five years shall operate as a dissolution of the Assembly provided. While it cannot be disputed that a member of a Legislative Assembly is entitled to continue for a period of five years, this will be subject to the other provisions of the Constitution. The period in respect of a particular member could itself be curtailed if he incurs a disqualification contemplated by Article 191. Just as by disqualification by Article 191(1), in the case of expulsion by virtue of a privilege exercised under Article 194(3) also, the period can be cut short. An argument was also advanced that expulsion of an elected member results in the constituency which he represented going unrepresented and such a result must be avoided and this could be done only by holding that this seat could become vacant only if the disqualifications contemplated by Article 191(1) of the Constitution read with Section 8 of the Representation of the People Act are incurred. Article 194(3) must be read subject to the right under Article 19(1)(a). Division Bench of the Madhya Pradesh High Court in Yeshwant Rao supra held on a construction of Article 194(3) that the House of Commons exercise the power of expelling a member not because it has the Power to regulate its own proper constitution, but because it finds it necessary for its proper functioning, protection and self-preservation to expel a member offering obstruction to the deliberations of the House during its sitting, the same power cannot be denied to the Legislative Assembly of the State on the ground that it has no power to regulate its own constitution. Neither Article 190 nor Article 191, nor any other provision in the constitution abridges the privileges declared by Article 194(3)..... The Madras High Court then referred to the majority decision of Punjab High Court in 1977 in Hardwari Lal supra that having regard to the provisions of Articles 170, 172 190, 191 and 192 read together, the power of expulsion by a majority must be held inherently alien to the written provisions of our constitution and therefore unavailable to the State Legislatures. Having reproduced the operative portion in Hardwari Lal supra the following:
(1) A legislative Assembly has no power to provide for or regulate its constitution unlike the House of Commons in England (paragraph
262).
(2) The power of the House of Commons to expel one of its members is rooted from time immemorial in its basic. It is indeed in integral and indivisible facet of the said privilege and of no other (paragraph 280).
(3) The power of expulsion by the House of Commons in.
innumerable cases entirely unrelated to questions of either contempt or breach of privilege. Such power was exercised by virtue of the Houses basic privilege to provide for and determine its own composition and since 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. (Paragraph 298).
(4) The power of expulsion is an additional mode of exercising the basic privilege to provide for regulating its own composition by the House of commons and 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 (Para 310).
(5) 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 (Paragraphs 336 and 358).
It is observed by the Madras High Court that no doubt it is not possible to dispute the proposition that the privilege of the House of Commons in the matter of its own composition cannot be claimed by the State Legislature. Indeed, it is so held in the U.P. Reference case. But, with respect, we are unable to concur with the view taken in the majority judgment having regard to the elaborate discussion which we have already made in the earlier part of the judgment.
The Madras High Court then referred to the position in United Nations from the views of Cooley at page 133 of his Treatise on the Constitutional Limitations, 1972 Edition; of C. Pritchett, in his work The American Constitution, third Edition, at page 146 and of the Constitution of the United States of America, prepared by the Legislative Reference Service, Library of Congress, 1964 Edition, at page 129 as follows:
As per Cooley: Each House has also the power to punish members for disorderly behaviour, and other contempts of its authority, also to expel a member for any cause which seems to be body to render it unfit that he continue to occupy one of its seats. This power is sometimes conferred by the Constitution, but it exists whether expressly conferred or not. It is a necessary and incidental power, to enable the house to perform its high functions and is necessary to the safety of the State. Independently of parliamentary customs and usages, our legislative houses have the power to protect themselves by, the punishment and expulsion of a member and the Courts cannot require into the justice of the decision, or look into the proceedings to see whether opportunity for defence was furnished or not As per C.Pritchett: Expulsion and Censure: Congressmen are not subject to impeachment, not being regarded as civil officers of the United States. The Constitution does provide, however, that each house may expel its members by a two thirds vote, or punish them for disorderly behaviour and As per the American Supreme Court The right to expel extends to all cases where the offence is such as in the Judgment of the senate is inconsistent with the trust and duty of a member. It cited with apparent approval the action of the Senate in expelling William Blount in 1797 for attempting to seduce an American agent among the Indians from his duty and for negotiating for services in behalf of the British Government among the Indians, conduct which was not a statutable offence and which admitted in his official character, nor during the sessions of Congress nor at the seat of government.
The Madras High Court on the arguments that after 1978 the State Legislatures cannot claim powers, privileges etc., on the basis of precedence established by the House of Commons and that if the power to expel a member for violation of oath was not exercised by the House prior to 1978 or such power did not exist prior to 1978, the House cannot create such a power by passing a resolution, observed that according to the terms of Article 194(3) of the Constitution all powers and privileges of the House of Commons could be exercised by the State Legislature if those privileges vested in the House of Commons as on 20-6-1979. It is the accepted principle in a democracy that a citizen is entitled to voice his dissent in respect of any particular matter. But voicing a dissent by making some comments is not the same thing as burning a Constitution. The act not only made penal by the provisions of the Prevention of Insults to National Honour Act, 1971, but is expressly in derogation Article 51A of the Constitution, which provides that it shall be the duty of every citizen to respect its ideals and institutions, the National Flag and the National Anthem. It is another matter that the duty to abide by and respect the Constitution is made a fundamental duty but even without such prescription made expressly by amendment of the Constitution, it is implicit in the adoption of a written constitution,, which is given by the people of India to themselves, that as long as the Constitution, which represents the will of the people and is the supreme law of the land is in force, it is an imperative obligation of every citizen of the Indian Republic, including those who want to voice their dissent in respect of any particular provision, to abide by the provisions of the Constitution.... No doubt, Article 194(3) cannot be so interpreted as to enable the State Legislature to add to the list of disqualifications, however the result of the resolution of expulsion for burning part of the Constitution is not an addition to existing disqualifications, but that it stems from the will of the House that it shall not have one among them who is unfit, according to the house to sit as a member as a result of certain conduct.
The Madras High Court on the scope of Article 212(1) which refers merely to irregularity of procedure, on the contention that the petitioners who were not even in the House and as matter of fact they were all confined to jails, were not given any opportunity to have their say in the matter of expulsion and the procedure adopted by the House must be treated as not mere irregular but illegal; observed that the term illegality, in its common acceptance, signifies that which is contrary to the principles of law as distinguished from rules of procedure. This court has also taken the view in a matter arising out of breach of privilege that the question of punishment for a breach of privilege is a matter exclusively within the jurisdiction of the Legislature and Article 212 forecloses any scrutiny by the Court with regard to the procedure adopted by the Legislature (see A.M. Paulraj v. Speaker, Tamil Nadu Legislative Assembly, where the observations of the Supreme Court in M.S.M.Sharma were referred).
Coming to Section 150 of the Representation of the People Act, it is observed that it does not make any reference to a seat becoming vacant as a result of expulsion.
Finally coming to the power of the Assembly for the Speaker purported to exercise, what he referred to, his residuary power under Rule 312 of the rules framed under Article 208 of the Constitution, to preserve and protect the Constitution of India, in so declared that the seven members named in the ruling have violated the oath taken by them under Article 188 by burning the Constitution or part of it publicly and therefore the elected members' eligibility to sit in this House ceased and they are disqualified to continue as members of this House for Rule 312 with a marginal heading Residuary power of the Speaker reads as:
All matters not specially provided for in, the Constitution or in these rules and all questions relating to the detailed working of these rules shall be regulated in such manner as the Speaker may from time to time direct.
And the rules which are made in the exercise of the power under Article 208 of the Constitution of India must be read in the light of the substantive provision in Article 208 itself that: 208(i) A house of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business.
Any rules made in exercise of the power under Article 208 must therefore be construed as regulating the procedure of the House and the conduct of its business.
Thus the Madras High Court expression is while making clear of what are the Rules made under Article 208 are the Rules under Article 194(3) of the Constitution, went wrong in ignoring the law laid down by the Supreme Court in the special reference No.1 of 1964 (Keshav Singh) and from gravity of the occurrence like in Madhya Pradesh case by placing reliance on it to the conclusion which expression as discussed supra not laid down correct law, though the expression of the Punjab High Court in 1977 in Haridwarilal not fully correct to the extent of no power of exclusion under Article 194 to confer from the implied exclusion of such power by Articles 190 and 191.
The law laid down by the Supreme Court in 1965 in the special reference in No.1 of 1964 (Keshav Singh) at paras 59-61&127 reads:
59........... We have already pointed out that in Pandit Sharma ([1959] Supp. 1 S.C.R. 806 this Court has held that Art. 21 applies where powers are exercised by the legislature under the latter part of Art. 194(3). If a citizen move the High Court on the ground that his fundamental right under Art.21 has been contravened, the High Court would be entitled to examine his claim, and that itself would introduce some limitation on the extent of the powers claimed by the House in the present proceedings.
60. There are two other articles to which reference must be made.
Art.208(1) provides that a House of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business. This provision makes it perfectly clear that if the House were to make any rules as prescribed by it, those rules would be subject to the fundamental rights guaranteed by Part III. In other words, where the House makes rules for exercising its powers under the latter part of Art.194(3), those rules must be subject to the fundamental rights of the citizens.
61. Similarly, Art.212(1) makes a provision which is relevant. It lays down 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. Art.212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Art.212(1) seems to make it possible 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 scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. That again is another indication which may afford some assistance in construing the scope and extent of the powers conferred on the House by Art.194(3).
127. As we have already indicated 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, and that we are dealing with this matter on the footing that Art.19(1)(a) does not apply and Art.21 does. If an occasion arises, it may become necessary to consider whether Art.22 can be contravened by the exercise of the power or privilege under Art.194(3). But, for the moment, we may consider Art.20. If Art.21 applies Art.20 may conceivably apply, and the question may arise, if a citizen complains that his fundamental right had been contravened either under Art.20 or Art.21, can he or can he not move this Court under Art.32 ? For the purpose of making the point which we are discussing, the applicability of Art.21 itself would be enough. If a citizen moves this Court and complains that his fundamental right under Art.21 had been contravened, it would plainly be the duty of this 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. In fact, this question was actually considered by this Court in the case of Pundit Sharma ([1959] Supp. 1 S.C.R.
806). It is true that the answer was made in favour of the legislature; but that is wholly immaterial for the purpose of the present discussion. 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. In our opinion, therefore, the impact of the fundamental constitutional right conferred on Indian citizens by Art.32 on the construction of the latter part of Art. 194(3) is decisively against the view that a power or privilege can be claimed by the House though it may be inconsistent with Art.21. In this connection, it may be relevant to recall that the rules which the House has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution under Art. 208(1).
The Supreme Court Constitution Bench in Kihoto Hollohan supra reiterated, the power of Judicial-review as a basic feature of the Constitution, while considering the scope and Judicial-review in the matter of Constitution (Fifty-Second Amendment) Act,1985 (popularly known as the Anti-defection law) under which the Tenth Schedule was inserted in the Constitution of India providing for disqualification of a Member of either House of Parliament or of a State Legislature found to have defected from continuing as a Member of the House; it was held among other findings on the schedule that Paragraph 7 of the Schedule in terms and in effect sought to make a change in chapter IV of Part V and Chapter V of Part VI of the Constitution takes away the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Articles 226 and 227 of the Constitution is liable to be struck down as it takes away the power of Judicial-review a basic feature of the Constitution.
8(aaaq). In this context, I may usefully refer to the words of Bhagwati,J. (as His Lordship then was) in the seven Judge Constitution Bench of the Supreme Court (which was quoted with approval in the nine Judge Constitution Bench of the Supreme Court in SR Bommais case of 1994) in State of Rajasthan v. Union of India :
"But merely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution if it raises an issue of constitutional determination, the Court cannot fold its hands in despair and declare "Judicial hands off." So long as a question arises whether an authority under the constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what the limits are and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law."
Where there is manifestly unauthorized exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of Government, is committed the conservation and furtherance of democratic values. The Court's task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Court. The Court cannot and should not shirk this responsibility.
9. From the above legal position, coming back to the facts and contentions further if any to answer, save those not answered in Paras 1 to 7, from what is stated supra of the facts not in dispute are that neither on 12.03.2018 nor on 13.03.2018 the respondents put the petitioners on notice about the alleged obstruction or interruption or in-dignified behaviour at the time of the Governors Address, nor the respondents have given them any notice & opportunity to explain in that regard, leave about even date neither the proceedings of the resolution contemplated by Rule 2(1)(s) fully uploaded nor supplied to the petitioners nor even the video footage supplied to the petitioners despite notice issued way back on 14.03.2018 nor even produced the same before the Court as referred supra, leave about the affidavit averments undisputed of the political, prejudicial, discriminatory and illegal action of the respondent No.2 in making the petitioners as scape-goats. Further even from no notice of material facts to meet and no any opportunity of hearing to explain any allegation if at all material for any motion moved contained much less with discussion thereon if any to explain before taking the harshest punishment of expulsion by terminating the rest of the duly elected period of representing the respective Legislative Assembly membership by a stroke of pen is not a mere procedural facet since that defeats the substantive rights of the petitioners guaranteed by the other provisions of the Constitution including those guaranteed by the fundamental rights, including from said violation of the basic rule of audi alterm partem which is of such a fundamental importance that itself embodies a basic substantive right, to treat the very proceedings of the 2nd respondent as non-est in the eye of law within the available parameters of Judicial-review laid down by the five Judge Constitution Bench expression of the Apex Court in Amarinder Singh supra that from the principles guiding judicial scrutiny as laid down in Raja Ram Pal (equal Constitution Bench) supra, empowers the Court to scrutinise the exercise of House privileges including power of a legislative chamber to punish for contempt of itself. Court cannot inquire into matters related to irregularities in observance of procedures of the legislature, but can examine whether proceedings conducted under Articles 105(3) or 194(3) are tainted on account of substantive or gross illegality or unconstitutionality and same is also the law laid down even earlier in Kihoto Hollohan (Constitution Bench) and Jagjit Singh supra on the power of the Judicial-review and setting aside the action which is not tainted by a mere procedural irregularity, but even from violation of procedure effecting the rights by making it unconstitutional or outcome of malafide or the like, suffice to say the submissions contra to it by the Learned Advocate General are not tenable.
10. The Learned Advocate General for the respondent Nos.1 & 2 mainly placed reliance upon two judgments of the Division Bench of Madhya Pradesh High Court and the Division Bench of Madras High Court viz., Yeshwant Rao Meghawale and K.Anbazhagan supra, which are the printouts from SCC online taken on 18.03.2018 from the Office of the Advocate General, Telangana, as can be seen from the respective pages of the two decisions, these are for reference marked as Exs.R1 & R2. The main submission with reference to these two expressions is that such a power of expulsion is available for the proper functioning, protection and self-preservation of the House when a Member offered obstructions to the deliberations of the House during its sitting by his disorderly conduct or the conduct in a manner rendered unfit to serve as a member and the expulsion does not become disqualification for contest and to re-elect even Articles 190 & 191 not provided the expulsion as disqualification if does not follow that the legislature has no power to expel a Member and render his seat vacant. Even absence of Rules framed under Article 208(1) no way indicative of Legislature has no power to expel its Member under Article 194(3) for same not contingent upon the House of Legislature exercising its authority under Article 208(1), for Article 194(3) is independent to the Rule making power under Article 208(1). Validity of the proceedings and want of opportunity and hearing cannot be gone into by the Court for the same at best irregularity in the procedure saved by Article 212 of the Constitution of India and thereby what the petitioners contending of no hearing and no opportunity and no service of notice or documents are only procedural irregularities saved by Article 212 supra and the Court cannot go into for the House is the sole judge in taking action and the writ petition is liable to be dismissed. In Yeshwant Rao supra, the Speaker was abused in filthy and hurled with chappal by the writ petitioners-Members of the House during the business of the House and in Anbazhagan supra, part of the Constitution were burnt by the Members in violation of the fundamental duty and provisions of the prevention of insult to the National Honour Act, 1971. In both cases the facts and the proceedings in detail discussed supra clearly speaks that no notices were given much less to explain before passing orders of expelling them. Whereas in Yeshwant Raos case there were no rules framed under Article 208(1) and in Anbazhagans case there was Rule 312 out of the Rules framed under Article 208(1) of the Constitution, which speaks all matters not specifically provided for in the Constitution or in these Rules and all questions relating to detailed working of these Rules shall be regulated in such manner as the Speaker may from time to time direct. Both the expressions are no longer good law in view of the subsequent Full Bench expression of the very Madras High Court in 1995 where in it was clearly held that the penalty imposed by the Speaker of the Assembly invoking Article 194(3) of the Constitution for breach of privilege, without following principles of natural justice by affording opportunity of hearing of the delinquent is bad in law and liable to be set-a-side; leave about the latest Constitution Bench expression of the Apex Court in Amarinder Singh supra referring to the earlier Constitution Bench expressions of the Apex Court in Raja Ram Pal, in Special Reference No.1 of 1964, in State of Karnataka v. Union of India, P.V. Narsimha Rao supra on the scope of Judicial-review and opportunity of notice and hearing and supply of the documents and particularly the compliance of the principles of natural justice as laid down in Alagaapuram R. Mohanraj supra. The Supreme Court held in Alagaapuram R. Mohanraj supra that Judicial review of internal proceedings of legislative bodies, in violation of Article 14, can be undertaken. Decision-making process, in non-compliance with principles of natural justice, violative of Article 14 A from non-supply of relevant material relied upon for reaching adverse conclusion having civil or evil consequences amount to violation of principles of natural justice. Resolution passed by Legislative Assembly for suspension of the MLAs for allegedly obstructing proceedings of the House in breach of privileges of House concerned, once the conclusion regarding the alleged conduct of delinquent MLAs arrived at by relying upon certain video recordings, that were not at all supplied to the delinquent MLAs despite their repeated requests; the resolution passed by the Assembly is liable to be set aside on ground of violation of principles of natural justice and Article 14. The proceedings before the Speaker have to be conducted in a fair manner and by complying with the principles of natural justice. It is settled law that the scope of judicial review in matters relating to action taken against members by the legislative bodies is limited. However, it is likewise well settled that the non-compliance with the principles of natural justice is one of the limited grounds on which judicial review could be undertaken against the internal proceedings of the legislative bodies in appropriate cases as held in Jagjit Singh supra. The writ petitioners have not been granted the opportunity to comment on the authenticity of the video. Petitioners raised the question of Whether denial of the right to comment on the video material would amount to breach of natural justice? The respondents never gave a copy of the alleged videography to the petitioners. At para 76 of the counter affidavit, it is stated that the violent incidents on 19.2.2015 had been witnessed by all Members in the House including those in the Privileges Committee and thus the videograph is not the sole basis for award of punishment. The minutes of the Privileges Committee show that the video-recording played an important role in arriving at the conclusions that the Privileges Committee did. The video recording was specifically shown to the members of the Privileges Committee since some of them would have forgot only the video recordings were shown again. Committee was not willing to rely solely on the memory of the members of the Committee. The video recording served as the common factual platform for the Privileges Committee, from where they recommended action against six petitionersIn Raja Ram Pal supra dealing with the question of the rules of natural justice in the context of proceedings in the legislative bodies, this court held (at para 446) that:
Regarding non-grant of reasonable opportunity, we reiterate what was recently held in Jagjit Singh supra that the principles of natural justice are not immutable but are flexible; they cannot be cast in a rigid mould and put in a straitjacket and the compliance therewith has to be considered in the facts and circumstances of each case.
10(a). In Jagjit Singh supra, this Court discussed the scope of the principles of natural justice in the context of the proceedings in the legislature and held thus (at para 44):
44. Undoubtedly, the proceedings before the Speaker have to be conducted in a fair manner and by complying with the principles of natural justice. However, the principles of natural justice cannot be placed in a straitjacket. These are flexible rules. Their applicability is determined on the facts of each case 10(b). The principles of natural justice require that the petitioners ought to have been granted an opportunity to see the video recording. Perhaps they might have had an opportunity to explain why the video recording does not contain any evidence/material for recommending action against all or some of them or to explain that the video recording should have been interpreted differently. The Privileges Committee should have necessarily offered this opportunity, in order to make the process compliant with the requirements of Article 14. Petitioner No.1 in his reply letter to the notice issued by the Privileges Committee seeks permission to give further explanation when the video recording is provided to him. The Petitioner No.3 in his reply letter states that he believes his version of his conduct will be proven by the video recording. The other petitioners do not mention the video recording in their reply letters. However, it is not the petitioners burden to request for a copy of the video recording. It is the legal obligation of the Privileges Committee to ensure that a copy of the video recording is supplied to the petitioners in order to satisfy the requirements of the principles of natural justice. The failure to supply a copy of the video recording or affording an opportunity to the petitioners to view the video recording relied upon by the committee in our view clearly resulted in the violation of the principles of natural justice i.e. a denial of a reasonable opportunity to meet the case. We, therefore, have no option but to set aside the impugned resolution dated 31.03.2015 passed in the Tamil Nadu Legislative Assembly. The writ petition is allowed as indicated above.
10(c). Thus, the contentions by placed reliance on the expressions in Yeshwant Rao and Anbazhagan supra by the learned Advocate General are liable to be rejected and accordingly, rejected for the failure to supply a copy of the video recordings and the resolutions and notice and opportunity to meet the case with proper response therefrom and from the non affording by the 2nd respondent of said mandatory required opportunity to the petitioners that too in taking the grave action of expulsion for no exceptional facts and circumstances resulted in the grave violation of the principles of natural justice from said denial of a reasonable opportunity to meet the case. It was also held very categorically in Amarinder Singh supra that if we turn to parliamentary practice in India, it is quite apparent that expulsion of members should only be sustained in exceptional circumstances and if their actions have caused obstructions to legislative functions or are likely to cause the same. Thus, the act of recommending appellant's expulsion through impugned resolution thereby on facts can be held not at all even justified as a proper exercise of powers, privileges and immunities of the House.
11. In fact in Amarinder Singh supra it was held while explaining and clarifying the earlier equal Five Judge Bench expression in Raja Ram Pal (supra) that the majority decision in Raja Ram Pal (supra) did recognise that the legislature's power to punish for its contempt could be exercised to expel legislators for grounds other than those prescribed in the Constitution, but it was not the intention of this Court to prescribe an untrammelled power. Using the route of legislative privileges to recommend the appellant's expulsion in the present case is beyond the legitimate exercise of the privilege power of the House. It is quite inconceivable as to how the allegedly improper exemption of land (notified on 13-1-2006) had the effect of obstructing the legislative business in the 13th term of the Punjab Vidhan Sabha. Legislative body is not entrusted with power of adjudicating a case once an appropriate forum is in existence under the constitutional scheme. Hence, a jurisdictional error was committed by Punjab Vidhan Sabha in passing said resolution in consonance with the spirit and essence of the Constitution. It would be safe to say that a breach of privilege by a member of the legislature can only be established when a member's act is directly connected with or bears a proximity to his duties, role or functions as a legislator. This test of proximity should be the rule of thumb, while of course accounting for exceptional circumstances where a person who is both a legislator and a holder of executive office may commit a breach of privilege. On whether obstruction of ordinary legislative functions warranting invocation of privileges of the House, it was held that the remedy is to move criminal law machinery with filing of a complaint followed by investigation contemplated under CrPC and the Punjab Vidhan Sabha exceeded its powers by expelling appellant on ground of breach of privilege when there existed none. It was observed that since the scope of powers, privileges and immunities available under Article 105(3) and 194(3) has not been codified by way of statute till date, it is open for us to consider the principles and precedents relatable to the British House of Commons, however, all British precedents cannot be automatically followed in the Indian context, British precedents are to be followed only to the extent compatible with our Constitutional scheme. One reason is that Indian legislatures are controlled by a written Constitution and hence do not have absolute power of self-composition, unlike British House of Commons which is controlled by an unwritten Constitution. In modern parliamentary democracies, it is the legislature which consists of the peoples representatives who are expected to monitor executive functions. This is achieved by embodying the idea of collective responsibility which entails that those who wield executive power are accountable to the legislature. Another reason is that some of the British precedents are clear instances of overreach and examples of arbitrary exercise of privileges. Hence, it is a well-settled position that all the privileges claimed by the House of Commons cannot be automatically claimed by legislative bodies in India.
11(a). In Amarinder Singh supra it was held while explaining and clarifying to the above extent and in reiterating the other principles guiding judicial scrutiny of the same, as laid down in Raja Ram Pal supra, it is held that Court is empowered to scrutinise exercise of House privileges including power of a legislative chamber to punish for contempt of itself. We turn to parliamentary practice in India, it is quite apparent that the expulsion of members should only be sustained if their actions have caused obstructions to legislative functions or are likely to cause the same. If it is indeed felt that the allegations of misconduct on part of the former Chief Minister had brought disrepute to the entire House, then the proper course is to pursue criminal investigation and prosecution before the appropriate judicial forum. Resolution directing expulsion of appellant is held constitutionally invalid. Restoration of appellant's membership in Punjab Vidhan Sabha is thereby directed, however, clarified that this was not to affect criminal proceedings, if any, in the matter.
11(b). In Amarinder Singh supra it was held while referring to Raja Ram Pal supra, that C.K. Thakkar, J, in his concurring opinion had described the Parliamentary Privileges as those fundamental rights which the House and its Members possess so as to enable them to carry out their functions effectively and efficiently. Sir Erskine May (1950) has answered the question `What constitutes privilege?' in the following manner :
Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions and which exceed those possessed by other bodies or individuals.
11(c). In Amarinder Singh supra it was further held that 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." Distinction between function and Privilege proper- It is more convenient to reserve the term privilege to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions. The privileges of Parliament are immunities conferred in order to ensure that the duties of members as representatives of their constituents may be carried out without fear of intimidation or punishment and without improper impediment. These immunities, established as part of the common law and recognized in statutes such as the Bill of Rights of 1688, are limited in number and effect.
11(d). In Amarinder Singh supra it was held while referring to in Special Reference No.1 of 1964 supra, that Gajendragadkar C.J. had held, at Para. 33:
"... The Constitution-makers must have thought that the legislatures will take some time to make laws in respect of their powers, privileges and immunities. During the interval, it was clearly necessary to confer on them the necessary powers, privileges and immunities.
11(e). In Amarinder Singh supra it was observed while relying upon another Seven Judge Constitution Bench expression which settled the law on the scope of Article 194(3) of the Constitution that in State of Karnataka v. Union of India , this Court already construed the powers contained in Article 194(3) as those `necessary for the conduct of the business of the House', at Para. 57 as follows: "57. It is evident, from the Chapter in which Article 194 occurs as well as the heading and its marginal note that the `powers' meant to be indicated here are not independent. They are powers which depend upon and are necessary for the conduct of the business of each House. They cannot also be expanded into those of the House of Commons for all purposes... We need not travel beyond the words of Article 194 itself, read with other provisions of the Constitution, to clearly read such a conclusion."
11(f). In Amarinder Singh supra it was observed while relying upon the earlier Seven Judge Constitution Bench expression in Special Reference No.1 of 1964 supra, that this Court had also drawn a distinction between the exercise of legislative privileges and that of ordinary legislative functions in the following manner:
"There is a distinction between privilege and function, though it is not always apparent. On the whole, however, it is more convenient to reserve the term `privilege' to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions. The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are absolutely necessary for the due execution of its powers. They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity."
11(g). In Amarinder Singh supra referring to Raja Ram pal supra it was also held very clearly that under the power to discipline its own members and the right of the House to be the sole judge of the lawfulness of its own proceedings, no such privilege can be claimed in respect of criminal offences or statutory detention. The power of the House to inflict punishment for contempt on members or strangers concerned, it is a power akin to the powers possessed by the Superior Courts of Justice to punish for Contempt. It includes: (i) the power to commit a person to prison, to the custody of its own officers or to one of the State prisons, [the keystone of parliamentary privilege] the commitment being for any period not beyond the date of the prorogation of the House. Hence, it is a well-settled position that all the privileges claimed by the House of Commons cannot be automatically claimed by legislative bodies in India. The acceptance of bribes had been recorded on camera by some journalists and later on the video-footage was treated as conclusive evidence of guilt by the privileges committee in that case. However, an important consideration in that case was that the misconduct which was the ground for the MPs' expulsion had a direct connection with their legislative functions, namely those of asking questions at the behest of vested interests and the improper allocation of funds under the MPLADS scheme respectively.
11(h). In Amarinder Singh supra, the guidelines laid down in Raja Ram pal supra by Y.K. Sabharwal, C.J. are reproduced, at Para. 431:
"431. Summary of the Principles relating to Parameters of Judicial Review in relation to exercise of Parliamentary Provisions We may summarize the principles that can be culled out from the above discussion. They are:
a. ..
b. .. it being the cardinal principle of our Constitution that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution, mere co-ordinate constitutional status, or even the status of an exalted constitutional functionaries, does not disentitle this Court from exercising its jurisdiction of judicial review of action which part-take the character of judicial or quasi-judicial decision;
c..
d. ..
e.
f. The fact that Parliament is an august body of co-ordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power; g. While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary; its acts, particularly relating to exercise thereof, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested, and the Court would confine itself to the acknowledged parameters of judicial review and within the judicially discoverable and manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error;
h. The Judicature is not prevented from scrutinizing the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens;
i. The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions are not correct;
j. If a citizen, whether a non-member or a member of the Legislature, complains that his fundamental rights under Article 20 or 21 had been contravened, it is the duty of this Court to examine the merits of the said contention, especially when the impugned action entails civil consequences;
k..
l. The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other Constitutional provisions, for example Article 122 or 212; m;
n..;
o. The truth or correctness of the material will not be questioned by the court nor will it go into the adequacy of the material or substitute its opinion for that of the legislature;
p..;
q. The rules which the legislature has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution;
r..;
s. The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny;
t. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action;
u. An ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision but not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, malafides, non-compliance with rules of natural justice and perversity;"
11(i). In Amarinder Singh supra, having so referred Raja Ram Pal Guidelines supra, while holding that the Superior Courts are empowered to scrutinize the exercise of legislative privileges which admittedly include the power of a legislative chamber to punish for contempt of itself as to whether proceedings conducted under Article 105(3) or 194(3) are tainted on account of substantive or gross illegality or unconstitutionality; it was ultimately by scrutiny of the facts observed that the counsel for the appellant and the petitioners have produced sufficient materials to demonstrate that it was not necessary for the Punjab Vidhan Sabha to have exercised its powers under Article 194(3) to recommend and then notify the expulsion of the appellant. We fail to see how the alleged misconduct on part of the appellant had the effect of obstructing the ordinary legislative functions of the Vidhan Sabha. In its role as a deliberative body which is expected to monitor executive functions in line with the idea of `collective responsibility', the Punjab Vidhan Sabha was of course free to inquire into the alleged misconduct and examine its implications. However, the act of recommending the appellant's expulsion through the impugned resolution cannot be justified as a proper exercise of powers, privileges and immunities conferred by Article 194(3). We have already explained that all British precedents cannot be automatically followed in the Indian context.. 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. Probably it would not be exercised now- a days, unless the Member was charged with crime or with some very gross misbehaviour falling short of crime, and in general the House would wait until he had been tried and convicted by a court of law.
11(j). In Amarinder Singh supra, it was very clearly laid down by clarifying the position that-at this juncture, we must clarify that if a sitting member of a legislature in India is found guilty of committing a statutory offence, then disqualification can be a consequence as per the scheme contemplated in the Representation of People Act, 1951. However as we have explained above, it is not appropriate to mechanically rely on all of these precedents. Even if we turn to parliamentary practice in India, it is quite apparent that the expulsion of members should only be sustained if their actions have caused obstructions to legislative functions or are likely to cause the same. S.C. Agarwal, J. in his dissenting opinion in P.V. Narasimha Rao supra, wherein it was observed:
25. It does not, however, constitute breach or contempt of the House if the offering of payment of bribe is related to the business other than that of the House. .The question of privilege was disallowed since it was considered that the conduct of the Member, although improper, was not related to the business of the House.
We are unable to agree with this line of reasoning presented on behalf of the respondents. Expressions such as `lowering the dignity of the house', `conduct unbecoming of a member of the House' and `unfitness of a member' are openly-worded and abstract grounds which if recognised, will trigger the indiscriminate and disproportionate use of legislative privileges by incumbent majorities to target their political opponents as well as dissidents. The various grounds for disqualification of members of legislative assemblies (MLAs) have been enumerated in Articles 190 and 191 of the Constitution. The `powers, privileges and immunities' contemplated by Article 194(3) of the Constitution have not been codified. Using the route of legislative privileges to recommend the appellant's expulsion in the present case is beyond the legitimate exercise of the privilege power of the House. Furthermore, Pasayat, J. had explained:
135. Dissolution brings a legislative body to an end. It essentially terminates the life of such body and is followed by constitution of a new body.
The basic difference is that prorogation unlike dissolution does not affect a legislative body's life which may constitute from session to session, until brought to an end by dissolution. Dissolution draws the final curtain upon the House. Once the House is dissolved it becomes irrevocable. There is no power to recall the order of dissolution and/ or revive the previous House.
11(k). In Amarinder Singh supra, it was by referring to the earlier expressions, it was observed that our institutions of governance have been intentionally founded on the principle of separation of powers and the Constitution does not give unfettered power to any organ. All the three principal organs are expected to work in harmony and in consonance with the spirit and essence of the Constitution. It is clear that a legislative body is not entrusted with the power of adjudicating a case once an appropriate forum is in existence under the constitutional scheme. M.H. Beg J. (as His Lordship then was) in Indira Nehru Gandhi v. Raj Narain (supra) observed that:
"392... neither our Parliament nor any State Legislature, in the purported exercise of any kind of law making power, perform an essentially judicial function by virtually withdrawing a particular case, pending in any court, and taking upon itself the duty to decide it by an application of law or its own standards to the facts of that case.
This power must at least be first constitutionally taken away from the court concerned and vested in another authority before it can be lawfully exercised by that other authority.
12. Coming to the contention on maintainability of the writ petition raised by the learned Advocate General on behalf of the 2nd respondent on the very first day of hearing on 16.03.2018, including on the very array of the 2nd respondent as party to the writ petition and the prayer in the writ petition in only impugning the notification without impugning the resolution of the Legislative Assembly concerned, the above expressions of the Apex Court contain the very answer on maintainability of the writ petition and power of judicial review and it no way requires repetition therefrom in this regard. So far as the array of the parties and prayer sought for concerned, the very two expressions placed reliance by the learned Advocate General in Yeswant Rao and Anbazhagan supra show that the Secretary representing the respective Legislative Assembly were arrayed as parties in those cases. In fact, even in Alagapuram R. Mohanraj supra the Tamilnadu Legislative Assembly was arrayed as a party rightly. It is suffice to say from the above instead of quoting several citations with similar arrays of the Assembly or the Parliament or the Legislative Council represented by respective Chairman or Speaker or Deputy Speaker as the case may be or the Secretary representing the Assembly as the case may be. It is also because Article 300(1) of the Constitution in relation to suits and other proceedings to sue and be sued concerned speaks that the Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted. Article 300, in the context of legal proceedings, makes the Government of a State the legal representative of the State. A direction can only be given to a legal entity and not to a geographical or a territorial entity. Hence, "directions" to the "State", as these terms are used in Articles 256 and 257, must necessarily mean directions to States as legal entities which must have legal representatives. Thus when the very (1) the State of Telangana, Law and Legislature Department, Hyderabad, (2) the Legislative Secretariat of the State of Telangana rep. by its Secretary, Legislative Assembly Buildings and (3) The Election Commission of India rep. by the Chief Election Commissioner are being necessary and proper parties arrayed and of whom the Telangana State Legislative Assembly itself was arrayed rightly for the resolution stated passed by the Legislative Assembly on 13.03.2018 as necessary party represented by its Secretary, there is no wrong array of the 2nd respondent. In this regard, it is also relevant to refer some of the other provisions of the Constitution viz., Chapter III of Part VI of the Constitution deals with the State Legislature. Articles 168 to 177 fall under the heading 'General'. Articles 178 to 187 fall under the heading 'officers of the State Legislature'. Articles 188 and 189 fall under the heading 'Conduct of Business'. Articles 190 to 193 are under the heading 'Disqualification of Members'. Articles 194 and 195 fall under the heading 'Powers, Privileges and Immunities of State Legislatures and their Members'. Articles 196 to 201 fall under the heading 'Legislative Procedure'. Articles 202 to 207 fall under the heading 'Procedure in Financial Matters' and Articles 208 to 212 fall under the heading Procedure generally. Thus we have to look into the provisions of Articles 178 to 187 to understand the term 'Officers' of the State Legislature. Article 178 shows that the members of the Assembly chosen as Speaker and Deputy Speaker are officers of the Legislative Assembly. Similarly Article 182 indicates that the Chairman and Deputy Chairman of the Legislative Council are officers of that Council. Article 187 deals with the Secretariat of State Legislature. Under circumstances similar to those here in the decision in K. A. Mathialagan v. P. Srinivasan , the Secretary of the Legislative Assembly of Tamil Nadu claimed immunity and privilege when he was summoned under rule nisi to appear and answer a writ, the Tamil Nadu High Court took the view that he could not claim any such immunity because (at p. 386): "It is only in a case where the officer of the Legislature of a State in whom powers are vested by or under the Constitution for carrying on regulating procedure or conduct of business he shall not be subject to the jurisdiction of any court in respect of the exercise by him of those powers". That court was of the view that where he was only exercising ministerial functions inside the House and he was summoned under the writ to state what happened inside the Legislature there was no question of immunity or privilege being claimed by him.
13. In A.M.Paulraj supra the Full Bench of the Madras High Court observed that:
8. At the very threshold, we must mention the fact that none of the two respondents have appeared in these proceedings, and, indeed, they have even declined to receive the notice which was sought to be served on them with regard to the admission of this appeal. We, therefore, requested the learned Advocate General to assist us in these proceedings. We would have, very much liked the respondents to be represented by a counsel. It appears to us that the refusal to receive even a notice of this appeal is based on a misapprehension that when a petition under Art. 226 of the Constitution is filed in the High Court by a person who has been punished for a breach of privilege, the admission and hearing of such a petition amounts to an affront to the Legislature and there is a confrontation between the High Court and the Legislature. Such an impression is, in our view, wholly unjustified. Indeed, the maintainability of a petition under Art. 226 of the Constitution challenging the decision of the House of a Legislature sentencing a citizen to imprisonment for contempt of the House has clearly been upheld in the decision of the Supreme Court in In re, Under Art.
143, Constitution of India, (hereinafter referred to as the 'Reference case').
14. In fact even in Anbazhagan supra placed reliance by the respondent No.2, the respondent State Legislative Assembly failed to attend the Court and the Court was to proceed with the matter by taken assistance of the Learned Advocate General. Now coming to the case on hand the Advocate General and Additional Advocate General to what extent appeared and assisted was referred above.
15. Now coming to the impugning of the notification and non- impugning of the resolution questioned concerned, the resolution was not supplied and same was not even uploaded but for the notification dated 13.03.2018 on even date though it was preceded by resolution of even date as per the notification supra, for the same was uploaded only on 24.03.2018 as referred in Ex.P7 supra and the question of impugning the same does not arise without seen its light, leave apart the very questioning of the notification tantamount to questioning of the resolution referred therein also without need of separate prayer questioning the same for considering the sustainability of the notification for the resolution as the base have to be gone into to confirm or set aside as the case may be on merits within the scope of the judicial review laid down by the settled expressions of the Constitution Bench of the Apex Court supra. The very recent expression of the Division Bench of the Delhi High Court in Kailash Galhot & ors Vs ECI & ors is also on above lines suffice to meet the answer from what it is held that the writ petition as filed against the respondent Election Commission challenging the notification of vacancy of seat without challenge to the resolution/order made by the President, is maintainable for the challenge to the notification is without any doubt challenge to the presidential order dated 20.01.2018 also from which the notification of vacancy of seat was issued and the High Court while exercising power under Article 226 is otherwise entitled to mould the relief to suit the facts situation.
16. The expression in Kailash Galhot not only dealt with the maintainability of the writ petition and the power of the Court to mould the prayer from the facts within the plenary jurisdiction conferred by the Constitution by Article 226 but also the power of judicial review and the quasi judicial authority bound to follow the principles of natural justice. For more clarity relevant portions of the expression referring to the Apex Courts expressions for the authoritative conclusion are extracted as follows:
On Preliminary Objection of the ECI, held at para.3 that before we refer to the facts, we must deal with and reject the preliminary objection of the ECI that the writ petitions should be dismissed as the petitioners have not challenged the order of the President of India dated 20th January, 2018, but have challenged Notification of the same date.
The Constitution Bench of the Apex Court in Kihoto Hollohan vs. Zachillhu and Others - 1992 Supp (2) SCC 651 while dealing with the validity of Constitution 52nd Amendment Act, 1985 by which paragraphs were added to Tenth Schedule as a declaration that decision of the speaker/chairman shall be final and no Court shall have any jurisdiction in respect of any matter incorporated in Article 192 of the Constitution, observed that the concept of statutory finality embodied in the provision would not detract from or arrogate power of judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, malafides or non-compliance of rules of natural justice and perversity were concerned.
The Madras High Court (FB) in K.S.Haja Shareff vs. His Excellency Governor of Tamilnadu, Madras and Others, AIR 1985 Madras 55, which had the occasion to consider scope of judicial review of an order under Article 192(1) had observed:
15.Considerable reliance is placed by learned counsel for the petitioner on Union of India v. Jyoti Prakash Mitter, (1971) 1 SCC 396: AIR 1971 SC 1093, which dealt with the scope of Art. 217(3) and it was held therein that, when taking a decision under the said Article the President performs a judicial function of grave importance under the scheme of the Constitution, and notwithstanding the declared finality of the order of the President, the Court has jurisdiction in appropriate cases to set-aside the order, if it appears that it was passed (i) on collateral considerations or
(ii) the rules of natural justice were not observed or (iii) that the President's judgment was coloured by the advice or representation made by the Executive, or (iv) it was founded on no evidence; .
In Rex vs Northumberland Compensation Appeal Tribunal, Ex Parte Shaw, 1952-1 K.B. 338, it was observed that the word "final" was not enough, for it would mean subject to recourse to Certiorari. The word final makes the decision final on facts but not final in law and, therefore, Certiorari could still be issued when required and necessary even if the decision was made by the statute as final.
53. We have already indicated that Reference proceedings would be quasi-judicial in nature. Distinction between quasi-judicial and administrative decisions is rather thin and whether the exercise of power is administrative or quasi-judicial can be a difficult and tricky issue to answer in several situations. Test which is sometimes adopted to distinguish between quasi-judicial and administrative decisions is that whether the decision by the legal authority or person would determine question affecting rights of the subjects and whether it was the duty of the authority to act judicially. Supreme Court in Indian National Congress(I) vs Institute of Social Welfare and Others, AIR 2002 SC 2158, has observed and laid down certain principles to determine whether function of the authority was quasi-judicial or not. These are (a) whether the authority was empowered under the statute to do an act; (b) that would prejudicially affect the subject; (c) although there is no lis or two competing parties, contest is between the authority and the subject; and (d) the statutory authority is required to act judicially under the statute.
54.
55. In A.K. Kraipak vs Union of India,(1969) 2 SCC 262, a Constitution Bench of Five Judges had stated that aim of Rules of Natural Justice is to secure justice, or rather to prevent miscarriage of justice. Violation occurs when the party is not afforded opportunity of reasonable hearing (audi alteram partem) or when the authority acts as a judge of its own case. The third rule is that quasi judicial inquiry must be held in good faith and without bias and not arbitrarily or unreasonably. Subsidiary rules have subsequently developed and added. This judgment accepts that the line that demarcates administrative enquiry from quasi judicial enquiry was difficult to draw and not easy to demarcate. Distinction between administrative enquiry and quasi judicial enquiry had evaporated for former could also have far reaching and grave effect as latter and just and fair decision was the aim of both, whether quasi judicial enquiry and whether quasi judicial enquiry and administrative enquiry. The test applied to ascertain whether principle of natural justice had been contravened, was to put and decide the question whether compliance of the particular rule of natural justice was necessary for just decision on the facts of that case.
56. In Mohinder Singh Gill and Another vs. Chief Election Commissioner, New Delhi and Others,(1978) 1 SCC 405 it was observed that though decision to cancel the polls was an administrative act, that per se would not repel application of principles of natural justice. Reference was made to Ridge vs. Baldwin,(1963) 2 All ER 66, observing that the decision had restored light to an area benighted by narrow conceptualism of the previous decade to affirm that good administration demands fairplay in action and that this simple desideratum was the fount of natural justice. Fairplay mandate in administration would be in accord with jurisprudence, even if it was attributable as a result of judicial creativity. In Competition Commission of India vs Steel Authority of India Limited and Another, (2010) 10 SCC 744, on application of the principle/rule of audi alteram partem, it was observed:
68.Generally, we can classify compliance or otherwise, with these principles mainly under three categories. First, where application of principles of natural justice is excluded by specific legislation; second, where the law contemplates strict compliance with the provisions of the principles of natural justice and default in compliance therewith can result in vitiating not only the orders but even the proceedings taken against the delinquent; and third, where the law requires compliance with these principles of natural justice, but an irresistible conclusion is drawn by the competent court or forum that no prejudice has been caused to the delinquent and the non-compliance is with regard to an action of directory nature. The cases may fall in any of these categories and therefore, the court has to examine the facts of each case in light of the Act or the rules and regulations in force in relation to such a case. It is not only difficult but also not advisable to spell out any straitjacket formula which can be applied universally to all cases without variation. xxxxxxxxx
82. The exclusion of principles of natural justice by specific legislative provision is not unknown to law. Such exclusion would either be specifically provided or would have to be imperatively inferred from the language of the provision. There may be cases where post-decisional hearing is contemplated. Still there may be cases where due process is specified by offering a full hearing before the final order is made. Of course, such legislation may be struck down as offending due process if no safeguard is provided against arbitrary action. It is an equally settled principle that in cases of urgency, a post-decisional hearing would satisfy the principles of natural justice. Reference can be made to Maneka Gandhi v. Union of India[(1978) 1 SCC 248] and State of Punjab v. Gurdial [(1980) 2 SCC 471: AIR 1980 SC 319].
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85. Wherever, this Court has dealt with the matters relating to complaint of violation of principles of natural justice, it has always kept in mind the extent to which such principles should apply. The application, therefore, would depend upon the nature of the duty to be performed by the authority under the statute. Decision in this regard is, in fact, panacea to the rival contentions which may be raised by the parties in a given case. Reference can be made to the judgment of this Court in Canara Bank v. Debasis Das[(2003)4 SCC 557:2003 SCC(L&S) 507].
86. We may also notice that the scope of duty cast upon the authority or a body and the nature of the function to be performed cannot be rendered nugatory by imposition of unnecessary directions or impediments which are not postulated in the plain language of the section itself. Natural justice is a term, which may have different connotation and dimension depending upon the facts of the case, while keeping in view, the provisions of the law applicable. It is not a codified concept, but are well-defined principles enunciated by the courts.
Every quasi-judicial order would require the authority concerned to act in conformity with these principles as well as ensure that the indicated legislative object is achieved. Exercise of power should be fair and free of arbitrariness.
63. In State of Himachal Pradesh vs. Nirmala Devi, (2017) 7 SCC 262, A.K. Sikri, J. on the question of exercise of discretion had quoted with approval the following passage from Ramji Dayawala and Sons (P) Ltd. Vs Invest Import, (1981)1 SCC 80:-
20. ... when it is said that a matter is within the discretion of the court it is to be exercised according to well-established judicial principles, according to reason and fair play, and not according to whim and caprice.
Discretion, said Lord Mansfield in R. v. Wilkes, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular? (see Craies on Statute Law, 6th Edn., p.
273).
It was observed that the use of discretion has to be guided by law, and what was fair under the obtaining circumstances. Discretion connotes latitude and flexibility in procedure while deciding but with due regard and taking into consideration facts and circumstances. The procedure adopted must be sound, fair and just.
In Alagapuram case supra at Para 33 it was held therefrom, by referring to the previous expressions of the Apex Court including of the Constitution Bench expressions particularly in Mohinder Singh Gill and others, that the impugned proceedings of the Legislative Assembly in suspending the members from the report of the Committee and without supply of the material documents and opportunity of hearing are violative of the fundamental right of the petitioners under Article 14 as in violation of the principles of natural justice.
It was way back clearly laid down by the Supreme Court in Union of India and another vs. Tulsiram Patel and others that as Article 14 is the Constitutional Guardian to the principles of natural justice, it is thus violative of the fundamental right guaranteed by Article 14 from non- supply of relevant material relied upon for reaching adverse conclusion having civil or evil consequences and non affording opportunity of hearing, which are the substantive rights violation and not of mere procedural irregularity amounts to violation of principles of natural justice and same is applicable to not only administrative, but to quasi judicial orders. Thus the doctrine of principles of natural justice and audi alterm partem are part of Article 14. For that proposition, Tulsiram supra placed reliance on the latin maxim referred in Boswell`s case in 1605 of qui aliquid statuerit parte inuaudita altera, aequum licet dixerit, haud aequum facerit i.e. he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right. It is stated therefrom that the principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 of the Constitution under the concept of equality which is the subject matter of the Article and thus violation of any rules of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, for fair play is part of the very public policy, it is nothing but violation of Article 14 of the Constitution. Same is also quoted with approval in para 18 of the Division Bench expression of the Patna High Court in Sakuni Chowdary and another Vs. The Speaker, Legislative Assembly and another .
17. From the above, it is crystal clear that the due process of law and opportunity of hearing must be mandatory that were abdicated in the case on hand by neither given notice or opportunity to explain nor supplied any documents or other material including the motion moved for expulsion and the discussion undertaken if any on 13.03.2018 and as to on what material facts and with what proof with reference to the alleged happenings on 12.03.2018 much less by supply of the original video footages of both days despite sought for by Ex.P1(c)-notice dated 14.03.2018 and the writ petition averments show even wanted to know and explain unheeded and not allowed, which is a clear violation of the principles of natural justice and fundamental rights to set aside the very expulsion proceedings covered by Ex.P7-resolution and the consequential notification covered by Ex.P1(a & b). In this regard, it is necessary further to refer in addition to what is discussed supra of the very concept of "Due process" that is applicable as per the law of the land is equal to the principles of 8th Amendment of the U.S. Constitution since that have been read by this Court as part of guarantee under Article 21 of the Constitution from what was laid down in State of Punjab Vs. Dalbir Singh , at Para 80 that:
"80. It has already been noted hereinabove that in our Constitution the concept of "due process" was incorporated in view of the judgment of this Court in Maneka Gandhi[(1978) 1 SCC 248] The principles of the Eighth Amendment have also been incorporated in our laws. This has been acknowledged by the Constitution Bench of this Court in Sunil Batra [(1978) 4 SCC 494] In Sunil Batra case, SCC para 52 at p. 518 of the Report, Krishna Iyer, J. speaking for the Bench held as follows:
"52. True, our Constitution has no 'due process' clause or the Eighth Amendment; but, in this branch of law, after Cooper [Rustom Cavasjee Cooper vs. UOI (1970) 1 SCC 248] and Maneka Gandhi the consequence is the same. For what is punitively outrageous, scandalisingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21."
As it is the said due process of law though not in so many words reflecting from the Constitution Bench expression in special reference No.1 of 1964 supra, the Supreme Court in its advisory jurisdiction, thus ruled that the quasi-Judicial/Judicial action by the Legislature imposing a punishment must be in conformity with the safeguards of due process where the liberty of citizen is in jeopardy and that whether the liberty has been infringed illegally or not, can also be gone into by the Constitutional Courts. Such Courts when they exercise jurisdiction in entertaining an application or in setting aside a penal action imposed by a legislative body, could not be held to be incompetent. It is needless to say whenever the power was exercised arbitrarily, malafide or in absolute disregard of the finer canons of the Constitutionalism, by whomsoever it might be including one of the important wings that is the Legislature in the claim of its powers and privileges including under Article 194(3) of the Constitution, the by-product order of expulsion and the consequential notification of vacancy thereby cannot get the approval of law and in for the Judicial hand must be and constrained to be stretched to it. It is also for the reason the Supreme Court Nine Judge Constitution Bench in the case of State of Kerala v. N.M. Thomas , very clearly held that the Court like any of the other two wings is also State within the meaning of Article 12 of the Constitution of India. Thus, Court can also act as Parens-Patria, so as to meet the ends of justice. There can be no doubt that if the State action in a particular case amounts to an arbitrary classification or a hostile discrimination which is violative of the fundamental rights including under Articles 14 or 16 or 21 of the Constitution, the Court is there to act as sentinel on the qui vive in order to strike down or set aside such an action. Needless to say the violation of principles of natural justice elevated to the violation of the fundamental rights from lack of opportunity and hearing and non-supply of the material which is the basis for action by the quasi-judicial action of the State Legislature to strike down the same as held in Alagapuram R. Mohanraj supra.
18. Accordingly and in the result, the Writ Petition is allowed and the expulsion proceedings covered by Ex.P7-resolution and the consequential notification covered by Ex.P1(a & b) are set aside and it is made clear that there is automatic restoration and revival of the writ petitioners respective membership in the Telangana Legislative Assembly viz., of the 1st petitioner-Komati Reddy Venkat Reddy for No.92-Nalgonda Assembly Constituency, Telangana State and of the 2nd petitioner-S.A.Sampath Kumar for No.80-Alampur (SC) Assembly Constituency, Telangana State for their continuation as usual for their remaining tenure as duly elected MLAs for all purposes with no order of expulsion, since set aside. It is made clear that if at all there is any criminal action to be taken or taken it no way bars for any such legal recourse to decide on its own merits. There is no order as to costs.
As a sequel, miscellaneous petitions pending, if any, shall stand closed.
____________________________ Dr. JUSTICE B. SIVA SANKARA RAO Date: 17.04.2018 ska APPENDIX OF EVIDENCE PETITIONERS EVIDENCE Ex.P1-copy of Telangana Gazette (C.No.26 & 27supra respectively) and notice given by the petitioners dated 14.03.2018 to the Honble Speaker of the Telangana Legislative Assembly acknowledged on even date disputing the incident and questioning the expulsion and non-providing of opportunity and non-supply of documents and violation of principles of natural justice and the procedure and provisions with a request to supply the video footage and all documents of the two dates i.e., 12 & 13.03.2018 (for more clarity those are marked as Ex.P1 (a),(b)&(c) Ex.P2-copy of practice and procedure of Parliament by MM Kaul and SL Shakdher-Chapter X-Presidents address, Messages and Communications to the House (pages 196 to 210) Ex.P3-copy of practice and procedure of Parliament by MM Kaul and SL Shakdher-Chapter XVIII-Arrangement of Business and List of Business (pages 407 to 432) Ex.P4-copy of practice and procedure of Parliament by Subash C. Kashyap-Chapter VIII-President & Parliament address, Messages and Communications (page 115) Ex.P5-copy of practice and procedure of Parliament by Subash C. Kashyap-Chapter IX-Business of the House (page 134) Ex.P6-copy of the Rules of procedure and conduct of business in Telangana Legislative Assembly framed under Article 208(1) of the Constitution of India-Chapter V-Governors Address and messages to Assembly (pages 9 to 11); Rule 2 (pages 1 to 3), Rule 17 & 17-A (page 9), Rule 340 of the Rules as to withdrawal and suspension of members (page
125) Ex.P7-the resolution copy adopted by the House dated 13.03.2018 expelling the petitioners Ex.P8-the first day of the ninth session (on Tuesday, 13.03.2018 at 10.00 AM) Ex.P9-dt.31.03.2018 referred the appointments are in consultation with the learned Advocate General Ex.P10-G.O.Ms.No.16 dated 05.03.2018 order of the Honble Governor of Telangana notifying as per Article 174(1) and by summoning the Telangana Legislative Council to meet for its ninth session at 10.00 AM on 12.03.2018 in the Assembly Hall, Public Gardens, Hyderabad with D.O. Letter No.15/Legn/2018 dated 05.03.2018 referring to copy of G.O.Ms.No.17 of even date by the Secretary to State Legislature to the Members of the Telangana Legislative Assembly pursuant to Article 174(1) from the Honble Governor of Telangana has been pleased to summon, informing under Article 176(1) that the Governor of Telangana will address the members of both Houses of the Legislature at 10.00 AM on 12.03.2018 in the Assembly Hall, Public Gardens, Hyderabad with tentative calendar of dates showing on 12.03.2018 there is only the Governors address of the days subject.
RESPONDENTS EVIDENCE Ex.R1Yeshwant Rao Meghawale Vs. Madhya Pradesh Legislative Assembly and others Ex.R2K. Anbazhagan and others Vs. The Secretary, The Tamil Nadu Legislative Assembly, Madras, and others.
___________________________ Dr. JUSTICE B. SIVA SANKARA RAO Date: 17.04.2018