Amrinder Singh vs Spl.Committee,Punjab Vidhan Sabha & ...

Amarinder Singh ... Appellant (s) Versus Special Committee, Punjab Vidhan Sabha & Others ... Respondent (s)

WITH T.C. (C) NO.1 of 2009 W.P. (C) NO. 442 of 2008 W.P. (C) NO. 443 of 2008

J U D G M E N T

K. G. BALAKRISHNAN, CJI

1. The appellant was the Chief Minister of the State of

Punjab during the 12th term of the Punjab Vidhan Sabha. The

appellant was duly elected as a member of the Punjab Vidhan

Sabha for its 13th term.

2. The Punjab Vidhan Sabha on 10-9-2008 passed a

resolution which directed the expulsion of the appellant

for the remainder of the 13th term of the same Vidhan Sabha.

This resolution was passed after considering a report

1 submitted by a Special Committee of the Vidhan Sabha

(Respondent No. 1) on 3-9-2008 which recorded findings that

the appellant along with some other persons (petitioners in

the connected matters) had engaged in criminal misconduct.

The Special Committee had itself been constituted on 18-12-

2007 in pursuance of a resolution passed by the Vidhan

Sabha. It had been given the task of inquiring into

allegations of misconduct that related back to the

appellant's tenure as the Chief Minister of the State of

Punjab during the 12th term of the Punjab Vidhan Sabha. More

specifically, it was alleged that the appellant was

responsible for the improper exemption of a vacant plot of

land which was licensed to a particular private party

(measuring 32.10 acres) from a pool of 187 acres of land

that had been notified for acquisition by the Amritsar Land

Improvement Trust on 5-12-2003. The Amritsar Land

Improvement Trust is a statutory body which had notified

the plan for acquisition in pursuance of a developmental

scheme, as contemplated under Section 36 of the Punjab Land

Improvement Act, 1922. Earlier, on 23-6-2003, a private

party (M/s. Veer Colonizers) had applied for a licence

under Section 5 of the Punjab Apartment and Property

Regulation Act, 1995 to develop the above-mentioned plot of

32.10 acres which was situated in the proximity of the

2 Amritsar-Jalandhar road. At the time of the colonizer's

application for a development licence, the said plot was

not covered by any acquisition scheme, though it had been

covered by two schemes in the past which had lapsed by

then. After the notification of the scheme, the colonizer

approached the concerned authorities, seeking an exemption

from the proposed acquisition of land. Subsequently on

7-10-2005, the Amritsar Land Improvement Trust granted a

No-objection certificate, thereby permitting the exemption

of the said plot of 32.10 acres from the scheme for

acquisition. This decision to exempt the said plot of 32.10

acres was notified by the State Government on 13-01-2006

under Section 56 of the Punjab Town Improvement Act. Since

the appellant was serving as the Chief Minister of the

State at the time, it was alleged that the decision to

exempt the plot was an executive act that could be

attributed to him.

3. However, some other private parties who owned plots in

the pool of land that had been notified for acquisition by

the Amritsar Land Improvement Trust on 5-12-2003, raised

objections against the exemption referred to above. The

gist of their objections is that the State Government had

unduly favoured one private party by exempting the said

3 plot of 32.10 acres from the scheme for acquisition. In

fact the validity of the exemption was questioned in

several cases instituted before the High Court of Punjab

and Haryana, namely those of Major General Sukhdip Randhawa

(Retd.) & Ors. Vs. State of Punjab (CWP No. 16923 of 2006),

M/s. Daljit Singh Vs. State of Punjab (CWP No. 20266 of

2006), Sudarshan Kaur Vs. State of Punjab (CWP No. 2929 of

2007) and Basant Colonisers & Builders (P) Ltd. Vs. State

of Punjab (CWP No. 7838 of 2008). All of these cases were

pending before the High Court at the time of the hearings

in the present case.

4. Following the elections held to re-constitute the Punjab

Vidhan Sabha in February 2007, there was a transition in

power in the State. The 13th Vidhan Sabha was constituted on

1-3-2007. The appellant who had served as the Chief

Minister of the State during the 12th term of the Vidhan

Sabha, became the leader of the opposition in the 13th term.

In pursuance of a news report dated 22.3.2007, some members

of the Legislative Assembly moved a privilege motion in

respect of allegations of tampering in the proceedings of

the 12th Vidhan Sabha (dated 1-3-2006). These allegations

were in regard to a starred question relating to the grant

of exemption of 32.10 acres of land. On 5-4-2007 the notice

4 of motion was referred to the Privileges Committee of the

House by the Speaker. Thereafter, questions were raised on

the floor of the house which cast aspersions on the

appellant's past conduct. On 18-12-2007, the report of the

Privileges Committee was tabled before the House. The

incumbent Chief Minister brought a motion which

specifically questioned the appellant's role in the

exemption of the 32.10 acre plot from the acquisition

scheme notified by the Amritsar Improvement Trust.

Following this motion, the Speaker of the House approved

the constitution of a Special Committee to inquire into the

alleged misconduct. The terms of reference for the Special

Committee required it to examine as to what were the

reasons for exempting the said plot measuring 32.10 acres

of land. As part of this inquiry, the Special Committee had

to examine whether any rule/norms had been violated on

account of this exemption and whether it had caused

monetary losses to the State exchequer. The stated

objective was to identify those responsible for such

losses.

5. The Special Committee submitted its report on 3-9-2008

which was presented to the House on 5-9-2008. The report

included findings that Captain Amarinder Singh (former

5 Chief Minister, appellant in Civil Appeal No. 6053 of

2008), Choudhary Jagjit Singh [former Local Bodies

Minister, petitioner in Writ Petition (Civ.) No. 443 of

2008], Late Sh. Raghunath Sahai Puri

[former Housing Minister, since deceased] and Sh. Jugal

Kishore Sharma [former Chairman of Amritsar Land

Improvement Trust, petitioner in Writ Petition (Civ.) No.

442 of 2008) had been involved in `corruption, conspiracy

to cause wrongful loss and abuse of public office' in

relation to the exemption of land from the above-mentioned

acquisition scheme. It must be noted that out of the four

individuals named in the report, only Captain Amarinder

Singh was elected as a member of the 13th Punjab Vidhan

Sabha. After considering these findings, the Punjab Vidhan

Sabha passed the impugned resolution on 10-9-2008 which is

extracted below:

"After accepting the report submitted by the Special Committee appointed by this House, this august House recommends the following action:

*** *** ***

(i) Captain Amarinder Singh is expelled for the remaining term of the 13th Punjab Vidhan Sabha. The Secretary of the Vidhan Sabha is instructed to approach the Election Commission of India to have his seat declared as vacant.

(ii) The recommendations of the Privilege Committee have been tabled in the House on 18.12.2007 and they be forwarded to Chief Secretary, Punjab Government with the undermentioned instructions:-

6 Because this House does not possess any facility to investigate and find out where the accused have stashed away the ill gotten wealth or how it has been distributed, it is essential to have custodial interrogation. Director Vigilance Department, Punjab which deals with corruption cases and is an arm of the Punjab Government be instructed to file a FIR keeping in mind the various instructions of the CrPC.

The vigilance department is to investigate and submit its report to the Speaker of this House within two months from today."

6. In pursuance of the said resolution, the secretariat of

the Punjab Vidhan Sabha issued a notification on 10-9-2008

which declared that Captain Amarinder Singh had been

expelled from the membership of the 13th Vidhan Sabha for

the remaining term of the State Legislature, (that is 3.5

years). It was also declared that his assembly constituency

seat (76-Patiala Town) was rendered vacant, thereby

setting aside his election to the same. Aggrieved by the

findings of the report submitted by the Special Committee

on 3-9-2008, the appellant moved the High Court of Punjab

and Haryana (C.W.P. 11548 of 2008). Following the impugned

resolution on 10-9-2008, the said petition was withdrawn

and C.W.P. 16216 of 2008 was instituted before the High

Court to challenge the Special Committee's report as well

as the impugned resolution dated 10.9.2008. On 15-9-2008, a

division bench of the High Court issued an order directing

that the case be heard on merits on 1-12-2008. The High

7 Court did not grant a stay on the operation of the impugned

resolution, but granted protection to Captain Amarinder

Singh from custodial interrogation and directed further

listing on 1-12-2008. Dissatisfied with the High Court's

order, the appellant approached this court by way of a

petition seeking special leave to appeal. The appellant

contended that the High Court ought to have stayed the

report dated 3.9.2008 and the Resolution and Notification

dated 10.9.2008. He apprehended that a fresh election would

be conducted in the intervening period, thereby

compromising his rights.

7. A division bench of this court directed notice on 26-9-

2008 and referred the case for hearing by a three judge

bench. On 3-10-2008, a three judge bench (B.N. Agarwal,

G.S. Singhvi and Aftab Alam, JJ.] granted leave in the

special leave petition (C.A. No. 6053/2008). It allowed

Transfer Petition (C) No. 1087/2008 for transfer of CWP No.

16216/2008 from the Punjab and Haryana High Court (the

transferred case is T.C. (C) No. 1 of 2009,) and

directed the same to be heard with the Civil Appeal along

with W.P. (C) No. 442/2008 and W.P. (C) No. 443/

2008. The three judge bench did not grant a stay on the

operation of the impugned resolution which had directed the

8 expulsion of the appellant from the Vidhan Sabha. However,

relief was granted to the extent that even though the

appellant could not participate in the legislative

proceedings, his seat would not fall vacant until the

adjudication of this case. A stay was also granted in

respect of the Vidhan Sabha's specific directions to the

Punjab Vigilance Department, but it was clarified that the

appellant and the petitioners could be investigated in

accordance with law. Subsequently, the three judge bench

found that the subject matter touched on substantial

questions of law requiring the interpretation of Article

194(3) of the Constitution, thereby deeming it fit to refer

these matters to a constitution bench by way of an order

dated 11-2-2009.

OVERVIEW OF CONTENTIONS

8. The counsel appearing for the appellant and the

petitioners have prayed that the impugned resolution as

well as the report submitted by the Special Committee be

invalidated in their entirety. Accordingly, the appellant

has sought restoration of his membership for the remainder

9 of the 13th term of the Punjab Vidhan Sabha. The main thrust

of the appellant's contentions is that the acts of

constituting the Special Committee on 18-12-2007, the

submission of its report on 3-9-2008 and the impugned

resolution passed by the Assembly on 10-9-2008 cannot be

defended as a proper exercise of legislative privileges

under Article 194 of the Constitution. It was urged that

the allegations of misconduct on part of the appellant and

the petitioners were relatable to their executive actions

which in no way disrupted or affected the legislative

functions of the Punjab Vidhan Sabha. It was reasoned that

legislative privileges are exercised to safeguard the

integrity of legislative proceedings and the alleged

misconduct did not threaten the same in any manner. Another

contention was whether it was proper for the 13th Vidhan

Sabha to exercise its privileges to inquire into acts that

had occurred during the 12th term of the Vidhan Sabha. It

was also pointed out that the alleged misconduct on the

part of the appellant and the petitioners had already been

questioned before the High Court of Punjab Haryana by

private parties whose lands had not been exempted from the

Amritsar Improvement Scheme. Thus, it was argued that it

was improper for the legislature to act in respect of

subject-matter which was pending adjudication, thereby

10 violating the norm of not interfering in sub judice

matters. It was further argued that even though legislative

privileges are exercised to ensure the dignity and

discipline of the House, the same cannot encroach into the

judicial domain by recording a finding of guilt and

recommending punitive action in respect of the alleged

misconduct. To support this objection, it was urged that

the appellant and the petitioners had not been given a fair

opportunity to contest or meet the allegations against them

and hence the proceedings of the Special Committee were

violative of the principles of natural justice.

9. The respondents' case is that the Punjab Vidhan Sabha

had legitimately exercised its privileges to recommend

punitive action in the present case, since the alleged

misconduct on part of the appellant and the petitioners had

brought disrepute to the House as a whole. It was reasoned

that even though the power of expulsion for such misconduct

has not been enumerated in Articles 190 and 191 of the

Constitution [which prescribe the grounds for

disqualification of MLAs] the legislature had a broad power

to take punitive action for the breach of its privileges

which includes the power to punish for its own contempt. It

was submitted that the appellant and the petitioners had

11 committed a breach of privilege as well as contempt of the

house since they had previously suppressed efforts of the

legislature to inquire into the alleged misconduct in

relation to the Amritsar Improvement Scheme. Since

legislative privileges have not been codified and are

shaped by precedents, the counsel for the respondents have

cited some English precedents in support of their

contention that privileges can be exercised to punish mala

fide acts which do not directly obstruct the proceedings of

the House, but impede its dignity nevertheless.

10. In the course of the hearing on merits before this

constitution bench, Shri K. Parasaran and Shri U.U. Lalit,

Sr. Advs. appeared on behalf of the appellant. Thereafter,

Shri Ashok Desai, Sr. Adv. appeared for the respondent

whose submissions were supplemented by Shri Ravi Shankar

Prasad, Sr. Adv., while Shri Gopal Subramanium, (Additional

Solicitor General, now Solicitor General) represented the

views of the Union government.

11. In light of the facts of this case and the contentions

outlined above, the following questions arise for

consideration:

12

I. Whether the alleged misconduct on part of the

appellant and the petitioners warranted the

exercise of legislative privileges under Article

194(3) of the Constitution?

II. Whether it was proper for the Punjab Vidhan Sabha

to take up, as a matter of breach of privilege, an

incident that occurred during its previous term?

III. Whether the impugned acts of the Punjab Vidhan

Sabha violated the norms that should be respected

in relation to sub judice matters?

Re: Question I.

12. Learned counsel appearing for the respondents have

submitted that it was proper for the Punjab Vidhan Sabha to

constitute the Special Committee and pass the impugned

resolution which recommended the expulsion of the

appellant. The core of their argument is that the

misconduct on part of the appellant had brought disrepute

to the Vidhan Sabha and it was justifiable to exercise

legislative privileges for mitigating the same. The

respondents have adopted a two-pronged line of reasoning.

Firstly, they have asserted that the alleged misconduct on

part of the appellant amounted to a breach of privilege as

13 well as contempt of the House. Secondly, they have

contended that since the `powers, privileges and

immunities' conferred on State Legislatures by Article

194(3) of the Constitution have not been codified, it would

not be proper to place limitations on their exercise. The

implicit rationale is that legislative assemblies should

retain flexibility in the exercise of their privileges and

the power to punish for contempt, so that they can tackle

new and unforeseen impediments to their reputation and

functioning. The respondents' submissions have dwelt at

length with the idea that the legislature's power to punish

for its own contempt cannot be trammeled since it is

different from the remedial objective of exercising

privileges to maintain the dignity and discipline of the

house. The respondents have extensively relied on the

constitution bench decision in Raja Ram Pal v. Hon'ble

Speaker, Lok Sabha, (2007) 3 SCC 184, where this Court had

upheld the Lok Sabha's power to expel its members in view

of misconduct in the nature of accepting bribes to ask

specified questions on the floor of the House. However, the

majority opinions of this Court had also clarified that the

exercise of parliamentary privileges in such cases was open

to judicial scrutiny.

14

13. As outlined earlier, the appellant has questioned the

impugned resolution since it recommends punitive action in

respect of his misconduct which was allegedly committed in

his capacity as the Chief Minister of the State of Punjab.

It was submitted that the alleged irregularity in exempting

a plot of land from an acquisition scheme was entirely

relatable to the discharge of executive functions. The act

of exempting land did not in any way obstruct the functions

of the Punjab Vidhan Sabha. It was urged that even though

the exercise of legislative privileges and the concomitant

power to punish for contempt have not been codified, they

cannot be construed as unlimited powers since that could

lead to their indiscriminate and disproportionate use. The

counsel appearing for the appellant and the petitioners

have also submitted that when the Special Committee was

constituted on 18-12-2007 it did not bear the nomenclature

of a privileges committee and at the time it was not

apparent to the appellant and the petitioners that they

were facing such an action. However, the respondent submits

that the incumbent Chief Ministers' motion brought on

18-12-2007 was in the nature of a privileges motion.

Irrespective of the contested facts, it will be proper for

us to view this controversy from the prism of legislative

privileges. Mr. Gopal Subramanium drew our attention to the

15 two main considerations that should guide the adjudication

of this case, namely those of `history' and `necessity'.

Considerations of history require us to examine whether

there are any applicable precedents for the exercise of

legislative privileges in similar circumstances. The

consideration of necessity entails that the scope of

privileges should be identified on the basis of what is

necessary to prevent or punish obstructions to legislative

functioning.

14. Before addressing these contentions, we can take a

bird's eye view of the law on legislative privileges. The

State Legislatures are conferred with `powers, privileges

and immunities' by way of Article 194 of the Constitution

which reads:

"194. Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof.- (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.

16 (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.

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature."

15. The powers and privileges conferred on the State

Legislatures are akin to those conferred on the Union

Parliament by Article 105. Therefore, the principles and

precedents relatable to the exercise of parliamentary

privileges are relevant for deciding this case. Both

Articles 105 and 194 explicitly refer to the freedom of

speech in the House and the freedom to publish proceedings

without exposure to liability. However, other legislative

privileges have not been enumerated. Article 105(3) and

194(3) are openly worded and prescribe that the powers,

privileges and immunities available to the legislature are

those which were available at the time of the enactment of

the Constitution (Forty-Fourth) Amendment Act, 1978.

Subhash C. Kashyap has elaborated on the Indian position

17 with these words [In Parliamentary Procedure - The Law,

Privileges, Practice and Precedents, Vol. 2 (New Delhi,

Universal Law Publishing Co. Pvt. Ltd., 2000) at p. 1555]:

"As regards other privileges, Art. 105(3) as originally enacted provided that that in other respects, the powers, privileges and immunities of Parliament, its committees and members, until defined by Parliament by law, shall be the same as those of the House of Commons of the United Kingdom as on the coming into the force of the Constitution on 26 Jan. 1950. This clause was however, amended in 1978, to provide that in respect of privileges other than those specified in the Constitution, the powers, privileges and immunities of each House of Parliament, its members and Committees shall be such as may from time to time be defined by Parliament by law and until so defined shall be those of that House, its members and Committees immediately before coming into the force of section 15 of the Constitution (44th Amendment), 1978 (w.e.f. 20 June 1978). This amendment has in fact made only verbal changes by omitting all references to the British House of Commons but the substance remains the same. In other words, each House, its Committees and members in actual practice, shall continue to enjoy the powers, privileges and immunities (other than those specified in the Constitution) that were available to the British House of Commons as on 26 Jan. 1950."

16. 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. In Raja Ram Pal's case (supra.)

C.K. Thakkar, J. in his concurring opinion had described

Parliamentary Privileges as those fundamental rights which

18 the House and its Members possess so as to enable them to

carry out their functions effectively and efficiently. It

was observed:

"519. In its creative sense, in England the House did not sit down to build its edifice of the powers, privileges and immunities of Parliament. The evolution of the English parliamentary institution has thus historical development. It is the story of conflict between the Crown's absolute prerogatives and the Common's insistence for powers, privileges and immunities; struggle between high handed actions of monarchs and people's claim of democratic means and methods. Parliamentary privileges are the rights which the Houses of Parliament and Members posses so as to enable them to carry out their functions effectively and efficiently. Some of the parliamentary privileges thus preceded Parliament itself. They are, therefore, rightly described by Sir Erskine May as "fundamental rights" of the Houses as against the prerogatives of the Crown, the authority of ordinary courts of law and the special rights of the House of Lords."

17. The evolution of legislative privileges can be traced

back to medieval England when there was an ongoing tussle

for power between the monarch and the Parliament. In most

cases, privileges were exercised to protect the members of

parliament from undue pressure or influence by the monarch

among others. Conversely, with the gradual strengthening of

parliament there were also some excesses in the name of

legislative privileges. However, the ideas governing the

relationship between the executive and the legislature have

undergone a sea change since then. In modern parliamentary

19 democracies, it is the legislature which consists of the

people's 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.

However, legislative privileges serve a distinct purpose.

They are exercised to safeguard the integrity of

legislative functions against obstructions which could be

caused by members of the House as well as non-members.

Needless to say, it is conceivable that in some instances

persons holding executive office could potentially cause

obstructions to legislative functions. Hence, there is a

need to stress on the operative principles that can be

relied on to test the validity of the exercise of

legislative privileges in the present case. In his widely

cited work, Sir Erskine May (1950) has answered the

question `What constitutes privilege?' in the following

manner [See: Erskine May, Parliamentary Practice, 16th edn.

(London: Butterworths, 1957) in `Chapter III: General View

of the Privilege of Parliament' at p. 42] :

"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.

20 Thus privilege, though part of the law of the land is, to a certain extent an exemption from the ordinary law.

The privileges of individual members of the House of Lords may be distinguished from, the privileges of individual members of the House of Commons; both again have common privileges as members of the Parliament; and the Lords have special privileges as peers, distinct from those which they have as members of a House co-ordinate with the House of Commons." [Stubbs, Constitutional History, iii (4th edn.) p.504]

The particular privileges of the Commons have been defined as:-

"The sum of the fundamental rights of the House and of its individual Members as against the prerogatives of the Crown, the authority of the ordinary courts of law and the special rights of the House of Lords."

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.

Ancillary nature of Privilege - A necessary means to fulfillment of 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."

In Halsbury's Laws of England, 4th edn. (Reissue Vol. 34, at

p. 553) it has been stated:

"Claims to rights and privileges- The House of Lords and the House of Commons claim for their Members, both individually and collectively, certain rights and privileges which are necessary to each House, without which they could not discharge their functions and which exceed those possessed by other bodies and individuals. In 1705, the House of Lords resolved that neither House had power to create any new privilege

21 and when this was communicated to the Commons, that House agreed...."

18. It would be instructive to refer to the following

extracts from a lecture on Parliamentary Privileges by

Viscount Kilmer - The Lord High Chancellor of Great

Britain, [Delivered on May 4, 1959 at the University of

London] :-

"The first question which springs to the mind is, `What precisely is Parliamentary Privilege?'- and its question which is not altogether easy to answer.

A privilege is essentially a private advantage in law enjoyed by a person or a class of persons or an association which is not enjoyed by others. Looked at from this aspect, privilege consists of that bundle of advantages which members of both Houses enjoy or have at one time enjoyed to a greater extent than their fellow citizens: freedom to access to Westminster, freedom from arrest or process, freedom from liability in the courts for what they say or do in Parliament. From another point of view, Parliamentary Privilege is the special dignity and authority and enjoyed by each House in its corporate capacity such as its right to control its own proceedings and to punish both members and strangers for contempt. I think these are really two sides of the coin. Any Parliament, it is to function properly, must have some privileges which will ensure freedom (to a greater or lesser degree) from outside interference. If the business of Parliament is of supreme importance, then nobody else must be allowed to impede it, whether by throwing fireworks from the gallery or bringing actions against members for what they say in debate.

A close parallel is provided by the powers of the superior courts to punish for contempt. If you try to interfere with the administration of justice either by throwing tomatoes at the judge or by intimidating a witness you will be liable to be proceeded against for

22 contempt. Once again, a body whose functions are of paramount importance can be seen making certain that outside interference is reduced to a minimum."

19. In Australia, the scope of Parliamentary Privileges was

enunciated in the 76th Report of the Senate Committee of

Privileges, wherein it was observed:

"The word "privilege", modern usage, connotes a special right accorded to a select group which sets that group apart from all other persons. The Macquarie Dictionary's primary definition of privilege is as follows: "A right of immunity enjoyed by a person or persons beyond the common advantage of others. 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. They relate only to those matters which have common to be recognized as crucial to the operation of a fearless Parliament on behalf of the people. As pointed out in a submission by the Department of the Senate to the Joint Select Committee on Parliamentary Privilege, a privilege of Parliament is more properly called an immunity from the operation of certain laws, which are otherwise unduly restrictive of the proper performance of the duties of members of Parliament."

20. In a Canadian case reported as New Brunswick

Broadcasting Co. v. Nova Scotia, (1993) 100 DLR (4th) 212,

Lamer, C.J. had cited the following extract from an

23 academic commentary [See: Joseph Maingot, Parliamentary

Privilege (Toronto: Butterworths, 1982) at p. 12]:

"Parliamentary privilege is the necessary immunity that the law provides for members of Parliament and for members of the legislatures of each of the ten provinces and two territories, in order for these legislators to do their legislative work. It is also necessary immunity that the law provides for anyone while taking part in a proceeding in Parliament or in a legislature. Finally, it is the authority and power of each House of Parliament and of each legislature to enforce that immunity.

Parliamentary privilege and immunity with respect to the exercise of that privilege are founded upon necessity. Parliamentary privilege and the breadth of individual privileges encompassed by that term are accorded to members of the House of Parliament and the legislative assemblies because they are judges necessary to the discharge of their legislative function.

The contents and extent of parliamentary privileges have evolved with reference to their necessity. In Precedents of Proceedings in the House of Commons, Vol. I, 3rd Ed. (London: T Payne, 1796), John Hatsell defined at p. 1 the privileges of parliament as including those rights which are absolutely necessary for the due execution of its power". It is important to note that, in this context, the justification of necessity is applied in a general sense. That is, general categories of privilege are deemed necessary to the discharge of the Assembly's function. Each specific instance of the exercise of a general privilege needs to be shown to be necessary."

21. In the past, this Court has adopted a similar

conception of legislative privileges to interpret Article

194(3). For example in Re Special Reference 1 of 1964, AIR

24 1965 SC 745, (also known as the U.P. Assembly case)

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. There can be little doubt that the powers, privileges and immunities which are contemplated by clause (3), are incidental powers, privileges and immunities which every legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of clause (3)."

22. In State of Karnataka v. Union of India, (1977) 4 SCC

608, a seven judge bench of this Court construed the powers

contained in Article 194(3) as those `necessary for the

conduct of the business of the House', at Para. 57:

"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."

23. Y.K. Sabharwal, C.J. (majority opinion) in Para. 471 of

Raja Ram Pal's case (supra.) has quoted from Parliamentary

25 Privilege- First Report (Lord Nicholas) which describes

Parliamentary Privilege as:

"Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their Members and officers possess to enable them to carry out their parliamentary functions effectively. Without this protection Members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished."

In U.P. Assembly case (supra.), 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."

In Hatsell's Collection of Cases of Privileges of

Parliament (1776), Parliamentary privileges have been

26 defined as those rights which are `absolutely necessary for

the due execution of its powers'. A similar definition has

also been quoted in Sir Erskine May's Parliamentary

Practice (1950) and is also found in Ramanatha Aiyar,

Advanced Law Lexicon, 2nd edn. Vol. 3 (New Delhi: Wadhwa &

Co. Nagpur, 1997) which defines privilege as:

"The distinctive mark of a Parliamentary Privilege is its ancillary character. They are rights which a sovereign legislature must possess for the due execution of its powers. Some of them are enjoyed by individual members of the House."

24. The observations cited above make it amply clear that

the exercise of legislative privileges is not an end in

itself. They are supposed to be exercised in order to

ensure that legislative functions can be exercised

effectively, without undue obstructions. These functions

include the right of members to speak and vote on the floor

of the house as well as the proceedings of various

legislative committees. In this respect, privileges can be

exercised to protect persons engaged as administrative

employees as well. The important consideration for

scrutinising the exercise of legislative privileges is

whether the same was necessary to safeguard the integrity

of legislative functions. We are also expected to look to

27 precedents involving the British House of Commons. The most

elaborate list of Parliamentary Privileges exercised by the

British House of Commons has been compiled by Pritiosh Roy

in his work Parliamentary Privilege in India which has been

quoted in Raja Ram Pal's case (supra.) at Paragraphs

94-97 and has been reproduced below:

1) Privilege of freedom of speech, comprising the right of exclusive control by the House over its own proceedings. It is a composite privilege which includes:

(i) the power to initiate and consider matters of legislation or discussion in such order as it pleases;

(ii) the privilege of freedom in debate proper-

absolute immunity of members for statements made in debate, not actionable at law;

(iii) the power to discipline its own members;

(iv) the power to regulate its own procedure- the right of the House to be the sole judge of the lawfulness of its own proceedings;

(v) the right to exclude the jurisdiction of the Courts;

(vi) the right to exclude strangers;

(vii) the right to ensure privacy of debate;

(ix) the right to control or prohibit publication of its debates and proceedings;

2) Privilege of freedom from arrest or molestation the claim of the Commons to freedom of members from arrest in civil action or suits during the time of the Parliament and during the period when a member journeys to or returns from the Parliament. This privilege includes:

(i) exemption of a member from attending Court as a witness- service of a civil or criminal process within the precincts of the House is a breach of privilege.

(ii) a member cannot be admitted as bail;

(iii) exemption of a member from jury service

(iv) no such privilege claimed in respect of criminal offences or statutory detention;

28 (v) right of the House to be informed of arrest of members on criminal charges;

(vi) extension of the privilege to witnesses summoned to attend before the House or its committees, and to officers in immediate attendance upon the service of the House.

3) Privilege of freedom of access to the sovereign through the Speaker.

4) Privilege of the House of receiving a favourable construction of the proceedings of the House from the sovereign.

5) Power of the House to inflict punishment for contempt on members or strangers- 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;

(ii) the incompetence of the courts of justice to admit a person committed by the House to bail;

(iii) when the person is committed by the House upon a general or unspeaking warrant which does not state the particular facts constituting the contempt the incompetence of the courts of justice to inquire into the nature of contempt;

(iv) the power of the House to arrest an offender through its own officers or through the aid and power of the civil government;

(v) the power of the officers of the House to break open outer doors to effect the execution of the warrant of arrest;

(vi) the power of the House to administer reprimand or admonition to an offender;

(vii) the power of the House to secure the attendance, whether in custody or not, of persons whose conduct is impugned on a matter of privilege;

(viii) the power of the House to direct the Attorney General to prosecute an offender where the breach of privilege is also an offence at law and the extent of the power

29 of the House to inflict punishment is not considered adequate to the offence;

(ix) the power of the House to punish a member by

(a) suspension from the service of the House, or (b) expulsion, rendering his seat vacant.

6) Privilege of the House to provide for its own due constitution or composition. It includes:

(i) the power of the House to order the issue of new writs to fill vacancies that arise in the Commons in the course of a Parliament;

(ii) the power of the House in respect of the trial of controverted elections of members of the Commons;

(iii) the power of the House to determine the qualifications of its members to sit and vote in the House in cases of doubt- it includes the power of expulsion of a member.

A major portion of this ancient privilege of the House of Commons has been eroded by the statute.

7) The power of the House to compel the attendance of witnesses and the production of papers."

25. However, we are only obliged to follow British

precedents to the extent that they are compatible with our

constitutional scheme. This is because the legislatures in

India do not have a wide power of self-composition in a

manner akin to the British House of Commons. This position

was clarified in Raja Ram Pal's case,

(Supra.) at Para. 87:

"87. In U.P. Assembly Case (Special Reference No.1 of 1964) it was settled by this Court that a broad claim that all the powers enjoyed by the House of Commons at the commencement of the Constitution of India vest in an Indian Legislature cannot be accepted in its

30 entirety because there are some powers which cannot obviously be so claimed. In this context, the following observations appearing at SCR p.448 of the judgment should suffice: (AIR 1965 SC 745, p.764, para. 45) "Take the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker `to have at all times the right to petition, counsel, or remonstrate with their Sovereign through their chosen representative and have a favourable construction placed on his words was justly regarded by the Commons as fundamental privilege' [Sir Erskine May's Parliamentary Practice, (16th Edn.), p.86].

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 a Parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in cases of doubt (May's Parliamentary Practice, p.175). This privilege again, admittedly, cannot be claimed by the House. Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House."

26. 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. With

respect to the examples noted above, it is quite apparent

that vacancies arising in the legislative bodies (Union

Parliament and State Legislative Assemblies) are duly

31 filled up through the election procedures contemplated by

the Constitution that have been fleshed out in detail

through the Representation of People Act, 1951. Similarly

disputes relating to elections are heard by the competent

courts and disqualifications are effected as per the

grounds enumerated in the Constitution. While Articles 101

and 102 enumerate the grounds for vacation of seats and the

disqualification of Members of Parliament (MPs)

respectively, Article 190 and Article 191 deal with these

aspects in relation to Members of State Legislatures. The

manner of effecting disqualifications has also been laid

down in relation to the various grounds for the same.

27. In Raja Ram Pal's case, (supra.) the majority had

decided that the parliamentary privileges available under

Article 105(3) could be legitimately exercised to expel

members for grounds other than those prescribed for

disqualification of members under Article 102. This Court

had upheld the validity of the proceedings of a privileges

committee of the Lok Sabha which had inquired into the

improper acts of some MPs and recommended their expulsion.

In that case, the misconduct was in the nature of accepting

bribes in return for asking specified questions on the

floor of the house. One of the expelled MPs had been

32 reported for accepting gratification in lieu of improper

allocation of funds under the Member of Parliament Local

Area Development Scheme (MPLADS). 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 the present case, the

respondents have cited this decision in support of their

contention that it was proper for the Punjab Vidhan Sabha

to have exercised its' power to punish for contempt

[derived from Article 194(3) of the Constitution] in order

to recommend the expulsion of the appellant. It was argued

that the Vidhan Sabha was empowered to expel members on

grounds other than those prescribed for disqualification of

members under Article 191. 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. With respect to the allegations against the

appellant in the present case, it is quite difficult to see

how the improper exemption of a particular plot of land

from an acquisition scheme caused an obstruction to the

conduct of legislative business. If it is indeed felt that

33 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.

28. At this juncture, we must reiterate the principles

which guide judicial scrutiny of the exercise of

legislative privileges (including the power to punish for

contempt of the House). In Raja Ram Pal's case, Y.K.

Sabharwal, C.J. had framed the following guidelines, 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. Parliament is a co-ordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny;

b. Constitutional system of government abhors absolutism and 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. The expediency and necessity of exercise of power or privilege by the legislature are for the

34 determination of the legislative authority and not for determination by the courts;

d. The judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature;

e. Having regard to the importance of the functions discharged by the legislature under the Constitution and the majesty and grandeur of its task, there would always be an initial presumption that the powers, privileges etc have been regularly and reasonably exercised, not violating the law or the Constitutional provisions, this presumption being a rebuttable one;

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 is 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

35 contention, especially when the impugned action entails civil consequences;

k. There is no basis to claim of bar of exclusive cognizance or absolute immunity to the Parliamentary proceedings in Article 105(3) of the Constitution;

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. Articles 122(1) and Article 212(1) displace the broad doctrine of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governance provided by Constitution of India

n. Article 122(1) and Article 212(1) prohibit the validity of any proceedings in legislature from being called in question in a court merely on the ground of irregularity of procedure;

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. Ordinarily, the legislature, as a body, cannot be accused of having acted for an extraneous purpose or being actuated by caprice or mala fide intention, and the court will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters, but if in a given case, the allegations to such effect are made, the Court may examine the validity of the said contention, the onus on the person alleging being extremely heavy

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;

36 r. Mere availability of the Rules of Procedure and Conduct of Business, as made by the legislature in exercise of enabling powers under the Constitution, is never a guarantee that they have been duly followed;

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, mala fides, non- compliance with rules of natural justice and perversity;"

29. Hence, we are empowered to scrutinize the exercise of

legislative privileges which admittedly include the power

of a legislative chamber to punish for contempt of itself.

Articles 122(1) and 212(1) make it amply clear that Courts

cannot inquire into matters related to irregularities in

observance of procedures before the legislature. However,

we can examine whether proceedings conducted under Article

105(3) or 194(3) are `tainted on account of substantive or

gross illegality or unconstitutionality'. The facts before

us do not merely touch on a procedural irregularity. The

appellant has contended that the Punjab Vidhan Sabha has

37 committed a substantive jurisdictional error by exercising

powers under Article 194(3) to inquire into the appellant's

actions which were taken in his executive capacity. As

explained earlier, the relevant fact here is not only that

the allegations of wrongdoing pertain to an executive act,

but the fact that there is no conceivable obstruction

caused to the conduct of routine legislative business.

30. Before commenting further on the merits of the

contentions, we must draw attention to the specific

guidelines in Raja Ram Pal's case (supra.) that advocate

due deference to the actions of the legislature in the

ordinary course of events. We do recognize that the

threshold for exercising judicial review in a case such as

the present one is indeed very high and we must begin with

a presumption that the legislatures' actions were valid.

However, 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

38 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).

31. In their submissions, the counsel for the respondents

have cited some English precedents in an attempt to draw an

analogy with the facts in the present case. The intended

purpose of doing so is to demonstrate the exercise of

legislative privileges in the past to punish conduct that

took place outside the `four walls of the house' and yet

diminished the reputation of the legislature. We have

already explained that all British precedents cannot be

automatically followed in the Indian context. One reason

for this is that Indian legislatures are controlled by a

written constitution and hence they do not have an absolute

power of self-composition, unlike the British House of

Commons which is controlled by an unwritten constitution.

Another reason is that some of the English precedents

involving the exercise of privileges were clear instances

39 of overbreadth. Far from being good law as contended by the

respondents, these old English cases have been subsequently

described by authors as examples of arbitrary exercise of

privileges. In fact Para. 217 of Raja Ram

Pal's case (supra.) conveys this position in the following

words:

"217. Constitutional History of England by Professor F.W. Maitland (1st Edn. 1908, reprinted 1941), based on his lectures, is divided chronologically. In the last and most contemporary `Period V' titled "Sketch of Public Law at the Present Day (1887-88)", he deals with the House of Commons in Part III. It has been opined by him that the earlier exercise of privileges from the fourteenth to the eighteenth century have fallen into utter desuetude an may furnish only an example of an arbitrary and sometimes oppressive exercise of uncanalised power by the House. After mentioning the membership and the qualification of the voters as also principles and the mode of election and dealing with the power of the voters as also principles and the mode of election and dealing with the power of determining disputed elections by the House of Commons, one of the facets of the privilege of the House of Commons to provide for and regulate its own constitution, in the context of the vacation of seats in the House by incurring disqualifications, he refers in sub-para (6) to the power of expulsion. His words may be extracted:

"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

40 he had been tried and convicted by a court of law. In 1856, a Member who had been indicted for fraud and who had fled from the accusation was expelled."

32. The respondents have quoted Para. 215 of Raja Ram Pal's

case (supra.) to contend that even in cases of criminal

offences such as forgery, perjury, breach of trust,

corruption in public offices etc. wherein there may be no

direct obstruction to legislative business, members have

been expelled from the British House of Commons through the

exercise of Parliamentary privileges. In fact, Para. 215

paraphrases a passage from Sir Erskine May's prominent work

which touches on the power of the House to expel its'

members. However, the exact passage dealing with the power

of expulsion, [See Erskine May, Parliamentary Practice, 15th

Edn. (1950)] states that at the time of writing (i.e. 1950)

the power of expulsion was reserved only for cases

involving conviction for grave misdemeanors. A reading of

the original passage makes it amply clear that Sir Erskine

May was referring to grounds on which members had been

expelled in the past. However, citing the same does not

amount to their endorsement and the respondent's reliance

on the said passage is quite misplaced. The original

passage is reproduced below:

41

EXPULSION BY THE COMMONS "The purpose of expulsion is not so much disciplinary as remedial, not so much to punish Members as to rid the House of persons who are unfit for membership. It may justly be regarded as an example of the House's power to regulate its own constitution. But it is more convenient to treat it among the methods of punishment at the disposal of the House. At the present time expulsion is practically reserved for the punishment of persons convicted of grave misdemeanors, whose seats are not, as in the case of Members convicted of treason or felony, automatically vacated.

Members have been expelled as being in open rebellion; as having been guilty of forgery; of perjury; of frauds and breaches of trust; of misappropriation of public money; of conspiracy to defraud; of fraudulent conversion of property; of corruption in the administration of justice, or in public offices, or in the execution of their Members of the House; of conduct unbecoming the character of an officer and a gentlemen; and contempt, libels and other offences committed against the House itself."

33. 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. The respondents have

also referred to the Table produced in Para. 582 of Raja

Ram Pal's case (supra.) which surveys the exercise of

privileges by the British House of Commons between 1667 and

1954. They have drawn our attention to some of the

instances to contend that members were indeed expelled for

42 acts that took place outside the `four walls of the house'

and had no direct bearing on legislative functions. However

as we have explained above, it is not appropriate to

mechanically rely on all of these precedents. If we must

look to English precedents for guidance, we find a far more

appropriate sample set in the table of cases from the

period 1945-1965 which forms an Appendix to the Report of

the Select Committee on Parliamentary Privilege (1967) in

the United Kingdom. The same has been reproduced below:

RECENT CASES OF PRIVILEGE (1945-65) DAT Subject of Report and Action by the E Complaint Recommendation of House the Committee of Privileges March Offer of a Offer was a Tacit 1945 H.C. bribe conditional acceptance 63 (Henderson's donation- no (1944-45) Case) question of bribery arose and no breach of privilege October Service of Breach of Tacit 1945 H.C. summons within privilege but Acceptance 31 the precincts particular (1945-46) on a sitting circumstances did day (Verney's not require Case) further action July 1946 Poster designed Breach of Tacit H.C. 181 to intimidate privilege but too Acceptance (1945-46) Members (Mrs. petty in scale to Tennant's Case) justify further action by House December Assault on Member and Resolution 1946 Member assailant both :Member guilty H.C. 36 (Piratin's guilty of of gross (1946- Case) contempt contempt,

47) assailant

43 guilty of contempt (10 February 1947) March Improper Nothing improper Resolution:

1947 pressure on and no breach of Inconsistent H.C. 118 Member by Trade privilege with duty of (1946-47) Union Member to (W.J.Brown's enter Case) contractual agreements limiting his independence in Parliament

April Newspaper 1)Grave contempt (1) Member 1947 suggested by newspaper and expelled;

H.C. 138 Members by Mr. Allighan Editor (1946-47) accepted 2) Disclosure of summoned to payments for information from Bar and information party meetings reprimanded (Gary for payment (30 October, Allighan's constitutes 1947) Case) breach of 2) This view privilege not accepted by House July 1947 Refusal by House to take Witnesses H.C. 137 witnesses such steps as may ordered to (1946- before seem necessary attend at Bar

47) Committee of of House and Privileges to examined by answer certain Mr. Speaker questions (Case Resolution:

of Schofield Refusal to and Dobson) answer constitutes contempt (12 August 1947) August Personal Member guilty of Member ordered 1947 statement by privilege to be H.C. 142 Member about reprimanded (1946- acceptance of for 47) payments by dishonourable newspaper conduct (House referred to did not Committee confirm the (Walkden's view of the Case) Committee on

44 breach of privilege) 30 October and 10 December 1947) March Broadcast Inconsistent with Tacit 1948 reflecting on dignity of House acceptance H.C. 112 allegiance of to examine (1947-48) Members (Colm further Brogan's Case)

July 1949 Misrepresentati Technical breach Tacit H.C. 261 on by newspaper of privilege but acceptance (1948-49) of Member's no action called speech (Case of for "Daily Worker") March Broadcast No contempt Tacit 1951 commenting on acceptance H.C. 149 future decision (1950-51) by House on privilege matter (B.B.C. case) March Letter Letters did not Tacit 1951 reflecting on reflect on acceptance H.C. 227 integrity of Members in their (1950-51) Members (Clan capacity as such Briton case) and therefore no breach of privilege June 1951 Disclosure by An inquiry into Tacit H.C. 227 newspaper of the facts did not Acceptance (1950-51) evidence given reveal any to Estimates intention any Committee intention to (Case of Daily infringe Telegraph) privilege June 1951 Speech by Lady Words constituted Tacit H.C. 235 Mellor imputed a breach of Acceptance (1950-51) partially to privilege but the Deputy circumstances did Speaker not require (Lady Mellor's further action by Case) House July 1951 Obstruction by No breach of Tacit H.C. 244 police of privilege Acceptance (1950-51) Member driving to attend House and subsequent

45 summons (John Lewis's Case) April Lady Member's Unauthorized Tacit 1953 disrespect in reports of acceptance H.C. 171 "Sunday proceedings in (1952-53) Express" House amount to article breach of describing privilege; but other Members normally House (Mrs. Ford's waives its case) privileges.

Apologies having been made, no further action needed

December Reflection on Breach of Tacit 1953 Members in privilege; but Acceptance H.C. 31 newspaper matter not worthy (1953-54) article of occupying imputing further time of motives in the House voting (Case of "Daily Worker") March Deputy No precedent for Tacit 1955 Assistant regarding it as Acceptance H.C. 112 Chaplain breach of (1954-55) General privilege; but threatens a matter for subordinate responsible with a view to Minister influencing proceedings in Parliament November Molestation of Serious breach of Tacit 1956 Member by privilege; but in acceptance H.C. 27 telephone view of humble (1956-57) (Editor of apology, no Sunday further action Graphic's needed case ) November Imputation in Editor of "Sunday Editor ordered 1956 newspaper Express" guilty to attend at H.C. 38 article that of serious Bar and (1956-57) Members were contempt and apology made receiving should be at Bar of

46 "prodigious" reprimanded House supplementary Resolution: He petrol was guilty of allowances serious (Case of contempt (24 "Sunday January 1957) Express") December Offensive Cartoon Tacit 1956 newspaper constituted Acceptance H.C. 39 cartoon reflection on (1956-57) reflecting on Members and conduct of contempt, but in Members (Case view of of "Evening withdrawal of News") cartoon from later editions and publication of unqualified apology, no further action needed January Broadcast and No contempt by Tacit 1957 newspaper B.B.C. or by acceptance H.C. 74 comment on newspaper (1956- matter under 57) consideration by Committee of Privileges (Case of B.B.C. and "Romford Recorder" newspaper ) April Action by Breach of Resolution: 1957 London privilege London H.C. 305 Electricity Electricity (1956-57) Board in Board had not threatening to commented any institute breach of proceedings for privilege libel Division: Ayes respecting 219; Noes 196 statement in (8 July 1958) letter by Member to Minister (Strauss Case) July 1960 Letter Breach of Tacit

47 H.C. 284 containing privilege; but no acceptance (1959-60) threat to further action Member (Colin needed as offence Jordan's case) had not been repeated March Reflection on No breach of Tacit 1964 allegiance of privilege and no acceptance H.C. 247 Members made contempt of the (1963-64) outside House House; no further (Quintin Hogg's action needed Case) February Imputation Gross contempt of Tacit 1965 against House and breach acceptance H.C. 129 Member's of privilege; but 1964-65 drunkenness no further action (Duffy's case) needed following letter from Member withdrawing remarks May 1965 Letter Breach of Tacit H.C. 228 threatening privilege and acceptance (1964-65) Members of improper attempt House (case of to influence anonymous Members; in their threatening parliamentary letters) conduct; but dignity of House best maintained by taking no further action

July 1965 Speech by No contempt and Tacit H.C. 269 Chancellor of no further action acceptance (1964-65) the Exchequer needed outside House reflecting on Members (Callaghan's case)

34. A perusal of the above-mentioned table reveals the following:

48

(i) The only cases in this Table where the House was of the

view that a breach of privileges had taken place were those

in which the questionable conduct bore a direct nexus to

the functioning or the proceedings of the House or the

functioning of a member within the House. Even in such

cases no serious action followed, much less an action of

expulsion. These were:

7 Service of summons in the precincts of the House

without permission of the House (Verney's case 1945-46)

7 Misrepresentation by a newspaper of the speech of a

Member within the House (Walkden's Case 1946-47)

7 Speech by a Member imputing impartiality to the Deputy

Speaker of the House

7 Unauthorized reports of proceedings of the House

(Mrs. Ford's case 1952-53)

7 Intimidation/molestation/threat of a Member in the

House (Mrs. Tennant's case 1945-46) and (Editor of

"Sunday Graphic's" case 1956-57) and (Colin Jordan's

case 1959-60)

(ii) The instances where the House was of the view that

contempt of the House had taken place were those where

there were direct obstructions and imputations against

members, namely when:

49 7 There was an assault on the Member in the House

(Piratin's case 1946-47)

7 There was a refusal by a witness to answer

questions before a Privileges Committee (Case of

Schofield and Dobson 1946-47)

7 There was an imputation by a newspaper that members

were receiving unusually large petrol allowances

(case of "Sunday Express" 1956-57)

7 There was an imputation regarding a Member's

drunkenness (Duffy's case 1964-65)

(iii) In the one instance where the Privileges Committee

did indeed recommend the expulsion of a member (Gary

Allighan, 1947) the House ultimately did not accept the

same recommendation.

35. 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. It is our

50 considered view that such a breach has not occurred in the

present case.

36. 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. The

following examples have been discussed in Raja Ram Pal's

case (supra.) at Paragraphs 301-317:

7 One can refer to the chain of events leading up to the

resignation of Mr. H.G. Mudgal from the Lok Sabha on

24-9-1951. Mr. H.G. Mudgal was charged with having

engaged himself in `certain dealings with the Bombay

Bullion Association which included canvassing support

and making propaganda in Parliament on problems like

option business, stamp duty etc. and receipt of

financial or business advantages from the Bombay

Bullion Association' in the discharge of his duty in

Parliament. Subsequently, a Committee appointed by

Parliament to inquire into the said member's

activities found his conduct to be derogatory to the

dignity of the House and inconsistent with the

standard which Parliament was entitled to expect from

its members. In pursuance of these findings, a motion

51 for expulsion was brought before the House which

prompted the member to submit his resignation. [See:

Kaul and Shakdher, Practice and Procedure of

Parliament, 5th edn. (New Delhi: Metropolitan Book Co.

Pvt. Ltd. 2001) at p. 262] It is pertinent to note

that the misconduct which triggered a recommendation

for expulsion had a clear nexus with legislative

functions.

7 Another relevant instance is that of the expulsion of

Mr. Subramanium Swamy from the Rajya Sabha. On

2-9-1976 the Rajya Sabha adopted a motion appointing a

committee to investigate the conduct and activities of

Mr. Swamy, within and outside the country, including

alleged anti-India propaganda calculated to bring into

disrepute Parliament and other democratic institutions

of the country and generally behaving in a manner

unworthy of a member. The Committee presented its

report on 12-11-1976 recommending expulsion and on 15-

11-1976 the Rajya Sabha adopted a motion to expel the

said member. [See: Subhash C. Kashyap, Parliamentary

Procedure- Law Privileges, Practice & Precedents Vol.

2, (New Delhi: Universal Law Publishing Co. Pvt. Ltd.,

2000) at p. 1657]

52 7 We can also invite attention to the instance when

Mrs. Indira Gandhi and two others were expelled from

the Lok Sabha by way of a motion adopted on

19-12-1978. The background was that on 18-11-1977, a

motion was adopted by the House referring to the

Committee of privileges a question of breach of

privilege and contempt of the House against Mrs.

Gandhi and others regarding obstruction, intimidation,

harassment and institution of false cases by Mrs.

Gandhi and others against certain officials. The

Committee of Privileges recorded a finding that Mrs.

Indira Gandhi had committed a breach of privilege and

contempt of the House by causing obstruction,

intimidation, harassment and institution of false

cases against the officers concerned who were

collecting information for the purpose of an answer to

a certain question that had been asked in the House.

The nature of punitive action to follow was left to

the wisdom of the House. On 19-12-1978,

the House adopted a motion which recommended Mrs.

Gandhi's expulsion among other things. However, this

expulsion was undone during the term of the Seventh

Lok Sabha, wherein there was a substantive debate on

whether the House had the power to expel its members

53 in the exercise of privileges. At that point of time,

the majority of the House had resolved that there was

no power of expulsion in such circumstances. However,

the position has since been clarified in

Raja Ram Pal's case (supra.) which has recognised the

power of legislatures to expel their members, subject

to the judicially prescribed guidelines. Nevertheless,

what is relevant for the present case is that the

initial recommendation for expulsion was triggered by

conduct that bore a direct causal link to legislative

functions.

7 Another comparable instance was noted by S.C. Agarwal,

J. in his dissenting opinion in P.V. Narasimha Rao v.

State, (1998) 4 SCC 626, 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. In 1974, the Lok Sabha considered the matter relating to offer or payment of bribe in the import licences case wherein it was alleged that a Member of Lok Sabha had taken bribe and forged signatures of the Members for furthering the cause of certain applicants. 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. But at the same time it was held that as the allegation of bribery and forgery was very serious and unbecoming of a Member of Parliament, he could be held guilty of lowering the dignity of the House. (See: Kaul and Shakdher at pp. 254, 255)."

54 37. As outlined earlier, the respondents have also

contended that the power of a legislature to punish for its

own contempt should not be seen as incidental to its' power

of self-composition and that it

should have a wider import than the remedial power of

preventing obstructions to legislative functions. It will

be useful to refer to the following extract from the

respondents' written submissions:

"... Even if the House of Legislature has limited powers, such power is not only restricted to ex facie contempts, but even acts committed outside the House. It is open to the Assembly to use its power for protective purposes, and the acts that it can act upon are not only those that are committed in the House, but upon anything that lowers the dignity of the House. Thus, the petitioners' submission that the House only has the power to remove obstructions during its proceedings cannot be accepted."

In pursuance of this line of reasoning, the respondents

have argued that the appellant's actions have lowered the

dignity of the house and the same amounts to conduct

unbecoming of a member of the House, even though such

conduct had no bearing on legislative functions. It was

urged that the underlying motive behind the expulsion was

not merely that of punishment but also to remove a member

55 who was seen as unfit to continue as a member of the

legislature.

38. 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. For most

circumstances, there is an elaborate machinery in place to

decide questions pertaining to the disqualification of

members and the vacancy of seats. However, it is for the

purpose of tackling unforeseen and novel impediments to

legislative functioning that the `powers, privileges and

immunities' contemplated by Article 194(3) of the

Constitution have not been codified. In Raja Ram Pal's case

(supra.) the majority decision of this Court did recognise

that the legislature's power to punish for its contempt

could be exercised to expel legislators for grounds other

56 than those prescribed in the Constitution, but it was not

the intention of this Court to prescribe an untrammeled

power. By laying down a clear set of guidelines for

judicial review over the exercise of parliamentary

privileges, this Court had made its intentions quite clear.

Accordingly, we are of the view that the power of a

legislative chamber to punish for its own contempt should

broadly coincide with the legislature's interest in

protecting the integrity of its functions. There can of

course be some exceptional circumstances where acts that

take place outside the `four walls of the house' could have

the effect of distorting, obstructing or diluting the

integrity of legislative functions. An obvious example is

that of legislators accepting bribes in lieu of asking

questions or voting on the floor of the House. However,

with respect to the facts before us, the respondents have

failed to demonstrate how the alleged misconduct on part of

the appellant and the petitioners could have a comparable

effect. 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.

Re: Question II.

57

39. The next aspect that merits our attention is whether it

was proper for the Punjab Vidhan Sabha to consider the

alleged misconduct as a breach of privilege in spite of the

fact that it took place during the Vidhan Sabha's previous

term. The allegedly improper exemption of a plot of land

(measuring 32.10 Acres) from the Amritsar Improvement

Scheme had been notified on 13-1-2006, during the 12th term

of the Punjab Vidhan Sabha. On 22-02-2006, a question

pertaining to this allegedly improper exemption was raised

in the House and the same was discussed on 22-02-2006, 28-

02-2006 and 1-3-2006 respectively. At this

juncture it must be clarified that there were separate

allegations in the respondent's submissions which suggest

that the appellant had played a part in suppressing some

materials when questions had been asked about the allegedly

improper exemption. However, the said suppression of

materials had been inquired into by another Committee and

there were no findings against the appellant.

40. As mentioned earlier, the House was subsequently

dissolved and a new regime was voted to power in the

elections held in February 2007. It was during the present

term of the House (i.e. the 13th term of the Punjab Vidhan

Sabha) that the allegedly improper exemption was made the

58 subject-matter of an inquiry by a Special Committee which

was constituted in pursuance of a resolution passed by the

House on 18-12-2007. The Special

Committee presented its report on the floor of the House on

3-9-2008, which in turn became the basis of the impugned

resolution of the Punjab Vidhan Sabha that was passed on

10-9-2008. Before addressing the contentious issue, it is

necessary to understand the implications of the dissolution

of a legislative chamber, since the Punjab Vidhan Sabha had

been dissolved and re-constituted during the

period between the operative dates, i.e. the date of

notification of the allegedly improper exemption of land

from the Amritsar Improvement Scheme (13-1-2006) and the

constitution of the Special Committee to inquire into the

said allegations of misconduct (18-12-2007).

41. The literal meaning of `dissolution' is listed in

Black's Law Dictionary, 8th edn. [(West Group) at p. 506] as

`the act of bringing to an end; termination'. P. Ramanatha

Aiyar, Advanced Law Lexicon, 3rd edn., Vol. 2D-I, (Wadhwa &

Co., 2005) furnishes the following definition, at p. 1435:

"Dissolution and prorogation.- Constitution of India, Art.107 (3), 174(2) (a) & (b), 196. Dissolution of

59 Parliament is invariably proceeded by prorogation, and what is true about the result of prorogation, is, it is said a fortiori true about the result of dissolution. Dissolution of Parliament is sometimes described as "a civil death of Parliament". Ilbert in his work on `Parliament' has observed that `prorogation' means the end of a Session (not of parliament)'; and adds that "like dissolution it kills all bills which have not yet been passed". He also describes dissolution as "an end of Parliament (not merely of a session) by royal proclamation", and observes that "it wipes the slate clean of uncompleted bills or other proceedings".

The effects of dissolution have also been discussed in the following manner [Cited from: Kaul and Shakdher, Practice and Procedure of Parliament, 5th edn. (New Delhi:

Metropolitan Book Co. Pvt. Ltd., 2001) at pp. 191-193]:

EFFECTS OF DISSOLUTION "Dissolution, as already stated, marks the end of the life of a House and is followed by the constitution of a new House. One the House has been dissolved, the dissolution is irrevocable. There is no power vested in the president to cancel his order of dissolution and revive the previous House. The consequences of dissolution are absolute and irrevocable. In Lok Sabha, which alone is subject to dissolution under the Constitution, dissolution "passes a sponge over the Parliamentary slate". All business pending before it or any of its committees lapses on dissolution. No part of the records of the dissolved House can be carried over and transcribed into the records and registers of the new House. In short, dissolution draws the final curtain upon the existing House.

Business before a Committee: All business pending before Parliamentary Committees of Lok Sabha lapse on dissolution of Lok Sabha. Committees themselves stand dissolved on dissolution of a Lok Sabha. However, a Committee which is unable to complete its work before the dissolution of a House may report to the house to that effect, in which case any preliminary memorandum

60 or note that the committee may have prepared or any evidence that it may have taken is made available to the new Committee when appointed."

42. Coming to judicial observations, the effect of

dissolution of a House were discussed by this Court in the

Gujarat Assembly Election case, (2002) 8 SCC 237. V.N.

Khare, J. (as His Lordship then was) had made the following

observations:

"40... Dissolution ends the life of the legislature and brings an end to all business. The entire chain of sittings and sessions gets broken and there is no next session or the first sitting of the next session after the House itself has ceased to exist. Dissolution of Legislative Assembly ends the representative capacity of legislators and terminates the responsibility of the Cabinet to the Members of the Lok Sabha or the Legislative Assembly, as the case may be."

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 (a Legislative Assembly or a House of People, as the case may be). Prorogation on the other hand relates to termination of a session and thus precludes another session, unless it coincides with the end of the legislative term. 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

61 dissolved it becomes irrevocable. There is no power to recall the order of dissolution and/ or revive the previous House. Consequently effect of dissolution is absolute and irrevocable. It has been described by some learned authors that dissolution "passes a sponge over the parliamentary slate". The effect of dissolution is in essence termination of current business of the legislative body, its sittings and sessions. There is a cessation of chain of sessions, sittings for a dissolved legislative body and there cannot be any next session or its first sitting. With the election of a legislative body a new chapter comes into operation. Till that is done the sine qua non of responsible government i.e. accountability is non- existent. Consequentially, the time stipulation is non-existent. Any other interpretation would render use of word "its" in relation to "last sitting in one session" and "first sitting in the next session"

without significance."

43. In Purushothaman Nambudiri v. State of Kerala, AIR 1962

SC 694, Gajendragadkar J. (as His Lordship then was) had

reflected on the effects of the dissolution of the House.

The context in that case was that a Legislative Assembly

had passed a bill and later the President had sent the bill

back for reconsideration by the successor assembly. The

question of whether the successor assembly needed to

consider the bill afresh and pass it again was answered in

the affirmative:

"6. ... The duration of the Legislative Assembly is prescribed by Article 172 (1), and normally at the end of five years the life of the Assembly would come to an end. Its life could come to an end before the expiration of the said period of the five years if during the said five years the President acts under

62 Article 356. In any case there is no continuity in the personality of the Assembly where the life of one Assembly comes to an end and another Assembly is in due course elected. If that be so, a bill passed by one Assembly cannot, on well recognized principles of democratic government be brought back to the successor Assembly as though a change in the personality of the Assembly had not taken place. The scheme of the Constitution in regard to the duration of the life of State Legislative Assembly, it is urged, supports the argument that with the dissolution of the Assembly all business pending before the Assembly at the date of dissolution must lapse. This position would be consonant with the well recognized principles of democratic rule. The Assembly derives its sovereign power to legislate essentially because it represents the will of the citizens of the State, and when one Assembly has been dissolved and another has been elected in its place, the successor Assembly cannot be required to carry on with the business pending before its predecessor, because that would assume continuity of personality which in the eyes of the Constitution does not exist. Therefore, sending the bill back to the successor Assembly with the message of the President would be inconsistent with the basic principles of democracy."

In Sub-Committee on Judicial Accountability v. Union of

India , (1991) 4 SCC 699, G.N. Ray, J. had discussed the

effect of dissolution of the Lok Sabha:

"51. Adverting to the effect of dissolution on other business such as motions, resolutions etc. the learned authors say:

"All other business pending in Lok Sabha e.g. motions, amendments, supplementary demands for grants etc., at whatever stage, lapses upon dissolution, as also the petitions presented to the House which stand referred to the Committee on Petitions."

63 44. On the basis of the authorities cited above, it is

evident that ordinarily legislative business does not

survive the dissolution of the House. The exception to this

norm is covered by the `doctrine of lapse' wherein the

successor House can choose to take up a pending motion or

any order of business after the re-constitution of the

House. However, this exception is not applicable in the

facts of the present case. At the time of the

reconstitution of the Punjab Vidhan Sabha following the

State elections in February 2007, there was no pending

motion, report or any other order of business which had a

connection with the allegedly improper exemption of land.

It was much later, i.e. on 18-12-2007 that a Special

Committee was constituted to inquire into the same. Hence,

in this case the Special Committee proceeded to enquire

into the executive acts of the appellants and petitioners

which had taken place during the previous term of the

Punjab Vidhan Sabha. It is quite untenable to allow the

exercise of legislative privileges to punish past executive

acts especially when there was no pending motion, report or

any other order of business that was relatable to the said

executive acts at the time of the re-

constitution of the House.

64

45. While the legislature is free to inquire into acts and

events that have taken place in the past, the same is

ordinarily done in the nature of fact-finding to improve

the quality of law-making. Legislative

oversight over executive actions is an important facet of

parliamentary democracy and such oversight can extend to

executive decisions taken in the past. However, it is

altogether another matter if privileges are purportedly

exercised to punish those who have held executive office in

the past. 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. Hence, it is our

considered view in respect of the facts in the present

case, that it was improper for the 13th Punjab Vidhan Sabha

to claim a breach of privileges on account of the alleged

misconduct which actually took place during the 12th term of

the Vidhan Sabha. However, our view should not be mistaken

for a general proposition since it is within our

imagination that in some circumstances the acts that have

taken place during the previous terms of a Legislature

could actually have the effect of distorting, obstructing

or diluting the integrity of legislative business in the

65 present term. Evidently, no such consequence or tendency

has been demonstrated in the present case.

Re: Question III.

46. As noted in the survey of facts at the beginning of

this opinion, the allegedly improper exemption of land from

the Amritsar Improvement Scheme is the subject-matter of

disputes that are pending before the High Court of Punjab

and Haryana. Admittedly, these proceedings had been

instituted soon after the notification of the said

exemption (dated 13-1-2006) and the fact of

their pendency was well known at the time of the

constitution of the Special Committee by the Punjab Vidhan

Sabha on 18-12-2007. This begs the question as to whether

it was proper for the Punjab Vidhan Sabha to inquire into

subject-matter which was already in question before a

judicial forum.

47. The norms to be followed by a legislature in respect of

sub judice matters have been discussed in the following

words [Cited from: Griffith and Ryle, Parliament, Functions

and Procedure (2003), Chapter 6 at Para 6-075):

66

"A more significant reason for not allowing a notice of motion is if the matter is sub judice (awaiting decision in the courts); the same rule applies to debate and questions. The sub judice rule does not, however, apply to legislative business or where a ministerial decision is in question (e.g. in an application for judicial review). It applies only to cases in UK courts, not ones in courts elsewhere, even if they concern UK matters (e.g. the European Court of Human Rights). The Speaker has discretion to waive the rule and would normally do so when the case in question concerned issues of national importance such as the economy, public order or essential services.

This long standing practice has been confirmed by resolutions of the House. Cases which are active in a criminal court in the United Kingdom must not be referred to; this applies from the moment charges are made until the verdict is given. The same applies to civil actions once arrangements are made for a hearing. Cases which have been decided can become sub judice again if one party applies for leave to appeal. Under this rule, which comes into operation in relation to some half-dozen cases a session, motions (or questions) may not be tabled until the case is decided. If a motion has been tabled before the matter became sub judice it is taken off the Order Paper until the case ceases to be sub judice."

48. In fact, the relevant rules of the Rules of Business

and Conduct of the Punjab Vidhan Sabha themselves

incorporate these norms. Reference may be made to the

language of Rule 39(10), 50, 93(2)(iv) and 150(d) which lay

down the following:

"39. In order that a question may be admissible it shall satisfy the following conditions, namely-:

67 ...

(10) It shall not ask for information on any matter which is under adjudication by a court of law having jurisdiction in any part of India;

... 50. The right to move the adjournment of the business of the Vidhan Sabha (Assembly) for the purpose of discussing a definite matter of urgent public importance shall be subject to the following restrictions, namely -:

****

(ix) the motion shall not deal with a matter on which a resolution could not be moved;

****

(xi) the motion shall not deal with any matter which is under adjudication by a Court of law;

... 93. (1) The matter of every speech shall be strictly relevant to the matter before the House.

(2) A member while speaking shall not-

****

(iv) refer to a matter of fact on which a judicial decision is pending;

.. 150. In order that a resolution may be admissible, it shall satisfy the following conditions, namely-

****

(d) it shall not relate to any matter which is under adjudication by a Court of law having jurisdiction in any part of India."

49. The above-mentioned rules which govern the business and

conduct of the Punjab Vidhan Sabha are quite categorical in

laying down a prohibition on the taking up of any matter

which is pending adjudication before a court of law.

Analogues provisions control the business and conduct of

the Lok Sabha [See Rules 173, 188 and 352 of the Rules of

Business and Conduct of the Lok Sabha]. While Articles

68 122(1) and 212(1) of the Constitution prohibit judicial

scrutiny over questions relating to compliance with these

rules, our attention has been drawn to the fact that the

Punjab Vidhan Sabha proceeded to inquire into the allegedly

improper exemption of land from the Amritsar Improvement

Scheme, even though the same had been questioned before the

High Court of Punjab and Haryana.

50. Subhash C. Kashyap [in Parliamentary Procedure- Law

Privileges, Practice & Precedents Vol. 1, (New Delhi:

Universal Law Publishing Co. Pvt. Ltd., 2000)] has

described a prominent example where the Speaker of the Lok

Sabha had disallowed discussion on subject-matter that was

pending before the courts. The following extract also

touches on arguments for allowing the legislature to

discuss sub judice matters in exceptional cases (at pp.

1225- 1226):

(iii) The following motion tabled by a member (Madhu Limaye) was included in the List of Business for 7 May 1968:

That this House disapproves of the statements made by Shri Ranganathan, Under Secy., Ministry Of External Affairs, on behalf of the Government of India in his affidavit in opposition on the 21 Apr. 1968, before the Delhi High Court which are contrary to the statements made by the Minister of Home Affairs in the House on the 28 Feb. 1968 in regard to implementation of Kutch Award.

69 When Limaye was called to move his motion, a point of order was raised by a member (Narayan Rao) and Law Minister (P. Govinda Menon) that discussion on affidavit would mean discussing a sub judice matter. The Speaker reserved his ruling. On 9 May 1968, the Speaker ruled inter alia as follows:

The rule on whether a motion which relates to a matter which is under adjudication by a court of law should be admitted or discussed in the House has to be interpreted strictly. While on the one hand the Chair has to ensure that no discussion in the House should prejudice the course of justice, the Chair has also to see that the House is not debarred from discussing an urgent matter of public importance on the ground that a similar, allied or linked matter is before a court of law. The test of sub judice in my opinion should be that the matter sought to be raised in the House is substantially identical with the one which a court of law has to adjudicate. Further, in case the Chair holds that a matter is sub judice the effect of this ruling is that the discussion on the matter is postponed till the judgment of the court is delivered. The bar of sub judice will not apply thereafter, unless the matter becomes sub judice again on an appeal to a higher court. Applying these two tests to the present notice of motion by Shri Limaye, I consider that in view of the statement by the Law Minister, that `the question that the affidavit filed by the Under Secretary is slightly at variance with what the Home Minister has stated has been raised in the court and is under adjudication by the court' the very matter which is sought to be raised by the member is awaiting adjudication by the court of law.

Hence I consider that discussion on the notice of motion should be postponed until the court has delivered its judgment. I am however, clear that the matter is of public

70 importance which should be discussed in the House and its importance will not be lost if the House awaits until the Court has adjudicated in the matter. [LS Deb. 6.5.1968, cc 2198- 2203; 7.5.1968, cc. 2649-

65; 9.5.1968, cc. 3149- 56]"

51. It is a settled principle that ordinarily the content

of legislative proceedings should not touch on sub judice

matters. As indicated in the extract quoted above, the

rationale for this norm is that legislative debate or

scrutiny over matters pending for adjudication could unduly

prejudice the rights of the litigants. In the case at hand,

the allegedly improper exemption of land (measuring 32.10

acres) from the Amritsar Improvement Scheme had already

been questioned before the High Court of Punjab and

Haryana. Thus, the Punjab Vidhan Sabha ought not to have

constituted a committee to inquire into the same.

CONCERNS ABOUT INTRUSION INTO THE EXECUTIVE AND JUDICIAL

DOMAIN

52. The doctrine of separation of powers is an inseparable

part of the evolution of parliamentary democracy itself.

Renowned French philosopher Montesquieu had drawn the

attention of political theorists to the dangers inherent in

the concentration of legislative, executive and judicial

71 powers in one authority and stressed on the necessity of

checks and balances in constitutional governance. 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. It would be pertinent to cite the following

observations made by M.H. Beg J. (as His Lordship then was)

in Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1:

"392...One of these basic principles seems to me to be that, just as courts are not constitutionally competent to legislate under the guise of interpretation, so also 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. It is not a necessary or even a natural incident of a "constituent power". As Hans Kelsen points out, in his "General Theory of Law and the State" (see p.143), while creation and annulment of all general norms, whether basic or not so basic, is essentially a legislative function their interpretation and application to findings reached,

72 after a correct ascertainment of facts involved in an individual case, by employing the judicial technique, is really a judicial function. Neither of the three constitutionally separate organs of State can, according to the basic scheme of our Constitution today, leap outside the boundaries of its own constitutionally assigned sphere or orbit of authority into that of the other. This is the logical meaning of the principle of supremacy of the Constitution."

53. The impugned resolution (dated 10-9-2008) passed by the

Punjab Vidhan Sabha contains directions as to how the

investigation into the appellant's and petitioners' alleged

wrongdoing should be conducted. The resolution directs the

filing of First Information Reports (FIRs) and custodial

interrogation in addition to directing the Vigilance

Department, Punjab to find out where the appellant and the

others have stored their `ill gotten wealth' and further

directs the Vigilance Department to report back to the

Speaker of the Punjab Vidhan Sabha. These functions are

within the domain of the executive. It is up to the

investigating agencies themselves to decide how to proceed

with the investigation in a particular case. The role of

the legislature in this regard can at best be

recommendatory and the Speaker of a Legislature may not

assume the responsibility of monitoring an ongoing

investigation. A determination of guilt or innocence by way

73 of fact-finding is a role properly reserved for the trial

judge. The only exception to this principle is when the

impugned acts have the effect of distorting, obstructing or

threatening the integrity of legislative proceedings or are

likely to do the same, thereby warranting the exercise of

privileges. As we have already noted above, there was an

obvious jurisdictional error on part of the Punjab Vidhan

Sabha in the present case.

54. A decision of the United States Supreme Court which

raised similar concerns was that of Kilbourn v. Thompson,

103 US 168 (1881). In that case, the House of

Representatives of the United States Congress had appointed

a Special Committee to investigate into activities related

to a `real estate pool', since it had attracted investments

from one Jay Cook & Co. who was a debtor-in-bankruptcy to

the Government of the United States. The Special Committee

was set up and it had served a sub poena to Kilbourn,

requiring the latter to present himself before the Special

Committee and to answer questions and produce documents.

Kilbourn appeared but he refused to cooperate with the

Committee's proceedings. The House of Representatives

passed a resolution directing that Kilbourn be arrested and

placed under custody until such time as he purged himself

74 of the contempt and communicated to the House his

willingness to submit to the jurisdiction of the Special

Committee. The matter reached the Supreme Court of the

United States by way of a writ of habeas corpus filed by

Kilbourn. The relevant observations by Miller, J. are

produced as follows:

"In looking to the preamble and resolution under which the committee acted, before which Kilbourne refused to testify, we are of the opinion that the House of Representatives not only exceeded the limit of its own authority, but assumed a power which could only be properly exercised by another branch of the government, because it was, in its nature, clearly judicial.

The Constitution 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. If what we have said of the division of the powers of the government among the three departments be sound, this is equivalent to a declaration that no judicial power is vested in the Congress or either branch of it, save in cases specifically enumerated to which we have referred. If the investigation which the committee was directed to make was judicial in its character, and could only be properly and successfully made by a court of justice, and if it related to a matter wherein relief or redress could be had only by a judicial proceeding, we do not, after what has been said, deem it necessary to discuss the proposition that the power attempted to be exercised was one confided by the Constitution to the judicial, and not to the legislative, department of the government. We think it equally clear that the power asserted is judicial, and not legislative. (103 US 168, 192-

193)

****

75 How could the House of Representatives know, until it had been fairly tried, that the courts were powerless to redress the creditors of Jay Cook & Co.? The matter was still pending in a court, and what right had the Congress of the United States to interfere with a suit pending in a court of competent jurisdiction? Again, what inadequacy of power existed in the court, or, as the preamble assumes, in all courts, to give redress which could lawfully be supplied by an investigation by a committee of one House of Congress, or by any act or resolution of Congress on the subject? The case being one of a judicial nature, for which the power of the courts usually afford the only remedy, it may well be supposed that those powers were more appropriate and more efficient in said of such relief than the powers which belong to a body whose function is exclusively legislative. If the settlement to which the preamble refers as the principal reason why the courts are rendered powerless was obtained by fraud, or was without authority, or for any conceivable reason could be set aside or avoided, it should be done by some appropriate proceeding in the court which had the whole matter before it, and which had all the power in that case proper to be entrusted to any body, and not by Congress or by any power to be conferred on a committee of one of the two Houses."

(103 US 168, 194)

The observations cited above are self-explanatory and we

echo the concerns about the overreach into the judicial

domain in the fact-situation before us.

CONCLUSION

55. In the light of the preceding discussion we have

arrived at the following conclusions:

76

(i) If there were any irregularities committed by the

appellant and the petitioners in relation to the

exemption of land (notified on 13-1-2006) from the

Amritsar Improvement Scheme, the proper course of

action on part of the State Government should have

been to move the criminal law machinery with the

filing of a complaint followed by investigation as

contemplated under the Code of Criminal Procedure.

It is our considered view that the Punjab Vidhan

Sabha exceeded its powers by expelling the appellant

on the ground of a breach of privilege when there

existed none. The allegedly improper exemption of

land was an executive act attributable to the

appellant and it did not distort, obstruct or

threaten the integrity of legislative proceedings in

any manner. Hence, the exercise of legislative

privileges under Article 194(3) of the Constitution

was not proper in the present case.

(ii) Furthermore, the allegedly improper exemption of

land took place during the 12th term of the Punjab

Vidhan Sabha, whereas the constitution of the

Special Committee to inquire into the same took

place during the 13th term. It was not proper for the

Assembly to inquire into actions that took place

77 during its previous term, especially when there was

no relatable business that had lapsed from the

previous term. If we were to permit the legislature

to exercise privileges for acting against members

for their executive acts during previous terms, the

Courts are likely to be flooded with cases involving

political rivalries. One can conceive that whenever

there is a change of regime, the fresh incumbents

would readily fall back on the device of legislative

privileges to expel their political opponents as

well as dissidents. Such a scenario would frustrate

some of the basic objectives of a parliamentary

democracy.

(iii)When it was well known that the allegedly improper

exemption of land from the Amritsar Improvement

Scheme was the subject-matter of proceedings

instituted before the High Court of Punjab and

Haryana, the Punjab Vidhan Sabha should have

refrained from dealing with the same subject-matter.

56. We accordingly declare that the resolution passed by

the Punjab Vidhan Sabha on 10-9-2008, directing the

expulsion of the appellant for the remainder of the 13th

78 term of the Vidhan Sabha is constitutionally invalid.

Hence, we direct the restoration of the appellant's

membership in the Punjab Vidhan Sabha. However, nothing in

this judgment should act as a hurdle against the

investigation, if any, into the alleged role of the

appellant and the petitioners in the improper exemption of

land from the Amritsar Improvement Scheme that was notified

on 13-1-2006. To repeat a clichi, the law will take its own

course.

57. This appeal and the connected petitions are disposed

off accordingly, however with no order as to costs.

......................................CJI (K.G. BALAKRISHNAN)

........................................J. (R.V. RAVEENDRAN)

........................................J. (P. SATHASIVAM)

........................................J. (J.M. PANCHAL)

........................................J. (R.M. LODHA) New Delhi April 26, 2010

79