K. Anbazhagan And Ors. vs The Secretary, The Tamil Nadu … on 16 April, 1987

Madras High Court K. Anbazhagan And Ors. vs The Secretary, The Tamil Nadu … on 16 April, 1987Equivalent citations: AIR 1988 Mad 275 Author: Chandurkar Bench: M Chandurkar, Srinivasan

JUDGMENT

Chandurkar, C.J.

1. The petitioners in all these Writ Petitions are members of the Tamil Nadu Legiaslative Assembly. The Tamil Nadu legislative Assembly passed resolution on 22nd December, 1986 declaring that the petitioners were unfit to continue as members of the House and that they were expelled from the membership of the House and that they could not continue to be members of the House. It was further resolved that their seats became vacant. The resolution passed by the Assembly was on a motion moved by the Leader of the House. The English translation of the resolution original of which was in Tamil as adopted by the Tamil Nadu Legislative Assembly on 22nd December, 1986 as published in the Tamil Nadu Government Gazette Extraordinary of the same date, reads as follows: – “Whereas the Executive Committee of the Dravida Munnetra Kazhagam resolved in its meeting held on 9th November, 1986 at Coimbatore that the portion of Part XVII of the Constitution of India which provides for Hindi to be the Official Language of the Union should be burnt in Public meetings, to be held between the period commencing on 17th November, 1986 and ending with 17th December, 1986 in various places in the State and it has been publicized in newspapers and public meeting that Constitution burning agitation will be carried on And Whereas in pursuance of the above, said resolution some members of the Dravida Munnetra Kazhagarn party have burnt in public place a copy of a part of the Constitution of India (such part being a document at paper containing excerpts being either in writing or printing or in any, other mode -of representation or reproduction in a visible form: And Whereas m pursuance of the above said resolution, the following Members of the Legislative Assembly belonging to Dravida Munnetra Kazhagam have burnt in public place (on the dates specified against them) a copy of the part of the Constitution of India (such part) being a document or paper containing excerpts of the whole or any part of any Article of the Constitution of India, such excerpts’ being either in writing, or printing or in any other mode of representation or reproduction in a visible form :

1. Thiru K. Anbazhagan – 17th November, 1986

2. S.Balan – 17th November, 1986.

3. A. Selvarasan – 17th November, 1986

4. P. Ponnurangam – 17th November, 1986 .

5. Parithi Elemvazhuthi – 17th November, 1986.

6. M. Ramanathan – 19th November, 1986

7. R. Chinnasamy – 23rd November 1986

8. M. Abragam – 29th November, 1986

9. C. Arumugam – 29th November, 1986

10. V.K. Raju – 5th December, 1986

And whereas the abovesaid conduct of the abovementioned members of this House, apart from being an act of violation of the oath or affirmation made and subscribed as Members bearing true faith and allegiance to. the Constitution of India under Article 188 of the Constitution of India read with R. 4(l) of the Legislative Assembly Rules, is also lowering the regard for the Constitution, the regard for this House constituted by it and the regard which a member of this House should have; and. is also derogatory to the dignity of the Constitution as well as the dignity of this House and wholly inconsistent with the standards which this House expects from its Members, this House therefore considers that the abovementioned Members of this House are unfit to be Members of this House on account of their abovesaid conduct. This House after careful consideration resolves that the following Members of this House, viz., :- –

1. Thiru K. Anbazhagan,

2. Thiru S. Balan,

3. Thiru A. Selvarasan,

4. thiru P. Ponnurangam,

5. Thiru Parithi Elamvazhuthi,

6. Thiru M. Ramanathan,

7. Thiru R. Chinnasamy,

8. Thiru M. Abragham,

9. Thiru C. Arumugam,

10. Thiru V.K. Raju,

are unfit to continue as Members of this House and also resolves that they are expelled from the membership of this House and that they cannot continue to be members of this House and it further resolves that their seats becomes vacant.”‘

2. Consequent upon the passing of this resolution a notification also came to be published that the ten members above named had ceased to be members of the Assembly with effect from the 22nd December, 1986 afternoon and that their seats had become Vacant with effect from the 22ndof December, 1986 afternoon. The petitioners who are the members of the Assembly expelled from the house have now filed these petitions for a declaration that the resolution expelling them from the House and declaring. their seats in the Assembly as vacant was unconstitutional, pull and void.

3. Among these petitions are two petitions which have been filed in this court viz., W.P. Nos. 857 and 1105 of 1987 which challenge the ruling given by the Speaker of the Assembly on 24-11-1986 expelling seven members of the Legislative Assembly including the petitioners as being null and void. Admittedly as a part of what is styled in the petitions as Anti Hindi Agitation, the D.M.K. party of which the petitioners are members announced their programme of action to highlight its protest against Hindi being the sole official language of the Union. They also announced that the D.M.K. party will born pieces of papers containing excerpts, of Part XVII of the Constitution of India which provides for Hindi being the sole official language. The petitioners, claimed to have taken part in the agitation held on 17-11-1986.

4. On 24-11-1986 the Speaker of the Tamil Nadu Assembly passed an order that seven members of the Assembly belonging to the D.M.K. party including the petitioners in W.P.857and 1105 of 1:987 could not continue as members of the Legislative Assembly for violation of the oath taken by them under Article 188 of the Constitution of India. He forwarded this ruling to the Governor of Tamil Nadu and the Election Commission of India for appropriate follow up action.

5. After the decision of the Speaker the Legislative Assembly met on 22-12-1986 and as already stated 10 members of the D.M.K. party were expelled from the House. The original resolution of expulsion referred only to three members of the House, but later on at the instance-of the leader of the Houlse, the names of the seven persons who were expelled by the Speaker of the Assembly were also included.

6. The resolution stated that the conduct of the D.M.K. members in burning a paper containing excerpts of the Part of the Constitution, apart from being violative of oath of affirmation under Art. 188 read with rule 40) of the Legislative Assembly Rules, amounted to lowering the regard for the Constitution, regard for the House, derogatory to the dignity of the Constitution, dignity of the House and wholly inconsistent with the standards which the House expected from its members and therefore the members were unfit to be members of the House. This resolution is challenged in the otne it petitions.

7. The respondents to the petitions are the Secretary, Tamil Nadu Legislative Assembly, the Speaker of the Tamil Nadu Legislative Assembly and the Election Commission of India, Nirvanchan Sadan, Ashok Road, New Delhi. The first two respondents viz., the Secretary, Tamil Nadu Legislative Assembly and the Speaker, Tamil Nadu a Legislative Asembly have however declined to accept the notice of these petitions and have not appeared in the Court; neither are they represented in these proceedings. The Election Commission of India has appeared but the learned counsel stated before us that he has instructions merely to watch the, proceedings and abide by the orders of the Court.

8. It is not necessary to set out in detail the grounds on which the resolution of expulsion is challenged in the affidavit for these grounds are dealt with in detail hereafter while dealing with the arguments advanced in support of the petitions.

9. Since the matter involved was one of considerable importance relating to the powers and privilages of Legislative Assembly and since the Speaker of the Assembly declined to appear in the proceedings, we requested the learned Advocate General to assist us in these proceedings. The main argument in support of the claim made in the petitions was advanced by Mr. V.P. Raman and some additional points were also argued by the different counsel who appeared for the respective petitioners in the other writ petitions.

10. The principal question which has been argued in all these writ petitions is that the State Legislature does not have the power to expel a member of the Assembly. The leading argument in support of this contention was advanced by Mr. V. P. Raman who appeared for the petitioner in W.P. No. 14189 of 1986. This argument is founded on the reasons for which the power of expulsion was exercised by the House of Commons. Reference is made to the following observations in May’s Parliamentary Practice. Nineteenth Edition at page 132 : “The purpose of expansion 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.”

11. Reference is also made to paragraph 1494 in Halsbury’s Laws of England, Fourth Edition, Vol. 34, This paragraph reads as follows : —

“Power of expulsion. Although the House of Commons has delegated its right to be the judge in controverted elections, it retains its right to decide upon the qualification of any of its members to sit and vote in Parliament.” “If in the opinion of the House a Member has conducted himself in a manner which renders him unfit to serve as a member of Parliament, he ma y be expelled, but, unless the cause of his expulsion by the House constitutes in itself a disqualification to sit and vote in the house, he remains capable of re-election.”

12. Reliance is placed on the fact that this paragraph is preceded by a paragraph 1493 which is put under the heading “Privileges peculiar to the House of Commons”. Paragraph 1493 reads as follows : –

“Privilege of the House of Commons in relation to its Constitution. In addition to possessing a complete control over the regulation of its own proceedings and the conduct of its members, the House of Commons. claims the exclusive right of providing, as it may deem fit, for its own proper Constitution.”

13. In support of the proposition that the power of expulsion is a part of the power of the House to regulate its own composition, reference is made to the Chapter on Parliamentary Privileges in Constitutional and Administrative Law by O. Hood Philips, Fifth Edition. The learned author while dealing with the privilages of the Commons has dealt with the following Privileges : (1) Freedom of speech and debate, (2) Freedom from arrest, (3) Right of the House to regulate its own composition, (4) Exclusive right to regulate its own proceedings, and (5) Power to punish for breach of Privilege or contempt. Under item No. 3 which dealt with the Right of the House to regulate its own composition, the learned author has observed as follows :- “This privilege covers: (i) the filling of casual vacancies, (ii) the determination of disputed election returns, (iii) the determination of legal disqualifications of persons returned to parliament, and (iv) expulsion of members who are unfit to sit. These powers are exercised within the limits left by statute.” Dealing with the expulsion of members who are unfit to serve, the learned author has observed as follows : –

“The House may also expel a member who, although not subject to any legal disability, is in its opinion unfit to serve as a member. This is commonly done when a court notifies the Speaker that a member has been convicted of a serious criminal offence. The House cannot prevent an expelled member from being re-elected, as happened several times in the case of John Wilkes between 1769 and 1774, but it can ref use to allow him to take his seat. Similar principles apply to expulsion for breach of privilage or contempt.” The argument is that the power of expulsion which was exercised by the House of Commons was a part of the power of the House of Commons to regulate its own composition.

14. Reference is then made to the judgment delivered by the Supreme Court in In re. Under Art. 143, Constitution of India , hereinafter referred to as the U.P. reference case. In that decision, dealing with the scope of Art. 194(3) of the Constitution of India and the argument of Mr. H.M. Seervai who appeared on behalf of the U.P. Legislative Assembly that the latter pan of Art. 194(3) expressely provided that all the powers which vested in the House of Commons at the relevant time also vested in the U.P. Legislative Assembly. “This broad claim, however, cannot be accepted in its entirety because there are some powers which cannot obviously be claimed by the House. Take the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker’ to have at all times the right to petition, counsel, or remonstrate with their Sovereign through their choserr-rep1resentative and have a favourable construction placed on his words was justly regarded by , he Commons as fundamental privilege, It is hardly necessary to point out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder and impeachments cannot be claimed by the House. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of Parliament; secondly, by the trial of controverted elections; and thirdly by determining the qui0l~fications of its members Particular reliance is placed on the, observations made by the Supreme Court that the House of Commons claimed the privilege in regard to its own constitution which privilege was expressed in three ways vii. (1) By the order of new writs to fill vacancies that arise in the Commons in the course of a Parliament, (2) By the trial of controverted elections, and (3) by determining the qualifications of-its members in cases of doubt. The Supreme Court expressly took the view that this privilege cannot be claimed by the House, The contention was that if the power of expulsion was a part of the of the power of the House of Commons as to regulate its own composition and the Supreme Court in the U.P. reference case has expressly negatived this privilege in respect of an Indian Legislature under Art. 194(3), it must be hald that the State Legislature did not have the power to expel a member.

15. Very strong reliance has been placed on the majority decision of the Punjab and Haryana High Court in Hardwari Lal v. The Election Commission of India, ILR (1977) 2 Punj and Har 269 (FB). In the majority decision Sandhawalia, J. (as the then was) addressed himself, among other questions, to the following two questions viz., (1) Whether the admitted right of the House o f Commons to expel one of its members is an integral and indivisible facet of its privilege to provide for and regulate its own constitution and (2) whether the power of expulsion is so inherently alien to the tenets of the written Constitution of India as to be unavailable to its State Legislatures in the very nature of things? On the first issue the learned Judge recorded his conclusion as follows : – “To sum up on this aspect of the case, it appears plain to me that on the authority of the British Constitutional authors, like Anson, Halsbury, Maitland, Wade and Philips Keir and Lawson, Ridges and including the opinion of May and his distinguished editor Sir Barnnett Cocks, there is hardly any doubt that the power of the House of Commons to expel one of its members is rooted from time immemorial in its basic privilege to provide for and regulate its own constitution. It is indeed an integral and indivisible facet of the said privilege and of no other.” The learned Judge took the view in paragraph 323 “that a discretionary power of expulsion by majority in a legislature involve a headon collision with the basic and guaranteed constitutional rights of representation, of the Freedom of the choice of electors and the rights of the elected themselves.” He further held that Articles 190 and 191 of the Constitution of India were exhaustive of the mode in which a seat in the Legislature is to be vacated and of the disqualfications which would necesscitate the same and that there was little warrnt for adding another mode of vacation of a seat or adding to the list of disqualifications by further giving a discretionary power of expulsion in the State Legislatures themselves. The learned Judge then answering the second question in paragraph 336 of the judgment observed as follows : – “I am inclined to hold that in view of the basic premises of a Republican Democracy enshrined in the preamble of our constitution; Art. 170 and 172 prescribing, the freedom of franchise and the freedom of choice for a fixed duration for the territorial constituencies of a State Legislature; and Art. 190, 191 and 192 providing in detail for the vacation of seats and disqualifications for membership when read together are all pointers to the fact that a power of expulsion by majority is inherently alien to the written provisions of our Constitution and is therefore, unavailable to the State Legislatures by the very nature of things.” Mr. V.P. Raman thus contend relying on this decision that a seat of an elected member could fall vacant only in accordance with the provisions of Arts. 190 and 191 read with a S. 8 of the Representation of the people Act. The Constitution according to the learned counsel, was exhaustive with regard to the circumstances in which a seat of an elected member would be vacated. Therefore, a new ground for vacating a seat in the nature of expulsion of the members of the Legislature Assembly was not contemplated by the Constitution:-

16. The argument that the power of expulsion is part of the power of the House to regulate its own constitution was adopted by Mr. Raghavan who appeared for the petitioner in W.P. No. 505 of 1987. He argued in support of the view taken by the majority in Haridwari Lal’s case (ILR (1977) 2 Punj & Hry 269)(FB). He has argued that Art. 194(3) has to be read in the light of Arts. 191 and 192 of the Constitution and that Section 8 of the Representation of the People Act cuts down the privileges referred to in Art. 194(3) of the Constitution. He has invited our attention to Chapter II in May’s Parliamentary Practice, Nineteenth Edition, which deals with disqualification for membership of either house, and particularly to the observations under the heading ‘other Crimes’ at page 42. In this paragraph it was stated :

“The statutory disqualification which the Forfeiture Act. 1870 imposes on any person convicted of treason previously extended to any person convicted off,……… felony and sentenced to death, preventive detention or corrective training or any term of imprisonment exceeding twelve months.” On the basis of this passage it was contended that while a conviction for felony was regarded as a statutory disqualification for a member of the House of Commons, conviction for a misdameanour was not treated as a disqualification. Our attention was invited to the following passage at page 42: which restored the position after Act of 1870 was amended by the Criminal Law Act, 1967 which abolished the division of Crime into felonies and misdemeanours. “Since the passing of the Criminal Law Act, therefore, the position with regard to all criminal convictions has been similar to the position with regard to misdemeanours before its passing. A person convicted of a misdemeanour (or sentenced to any lighter penalty than these described in S. 2 of the Act of 1870) was not thereby disqualified for election or for sitting and voting; but when a Member was so convicted the House might decide to expel him. Expulsion however, does not in itself create a disability, or prevent a constituency from re-electing the expelled Member.” The argument of Mr. Raghavan was that when the House of Commons, expelled a member for misdemeanour that was in exercise of, what he described a constitutional power. He made a reference to the provisions of S. 11 of the Representation of the. People. Act. According to the learned counsel, expulsion was a disqualification vis-a-vis an election which had already taken place because having been elected the expelled Members of the House was not allowed to sit in the House thus resulting a disqualification. A further submission was made on merits that the conduct referred to in the resolution of Expulsion was a conduct outside the House, and that since the petitioner had not offended the House or the Speaker or any other member of the House, the question of punishment did not arise.

17. Mr. Krishna Shetty who appeared for the petitioner in W.P. No.493 1987 has contended’ firstly that the act of burning a copy of Art. 343(1) of the Constitution of India was merely a symbolic expression of dis-approbation of Part 17 of the (Constitution and fell within Explanation I of s. 2 .of the Prevention of Insults to National Honour Act, 1971. Additionally it was contended that assuming that burning of the copy of Art. 3430) was an offence, the act of burning was violative of the oath of allegiance and in any case violation of oath of allegiance was not an offence of such a nature that it will result in disqualification by way of expulsion. This contention was based on the decision of the Kerala High Court in Kallara Sukumaran v. Union of India, . It was also contended that the Legislature has no power or privilege to expel a member for violation of oath of allegiance. A contention was also advanced that if the power of expulsion as a part of the privilege was, not exercised by the Legislature prior to 1978, i.e., prior to coming into force of the Forty Fourth Constitution Amendment Act, the House cannot now exercise that privilege. He also adopted the argument that a Legislature had no power to add to any disqualifications.

18. Mr. Mohan Parasaran who appeared for the Petitioner in W.P. No. 513 of 1987 adopted the arguments that an Indian Legislature does not, have a power to expel its own member and further if at all there was a power of expulsion it could be resorted to only if the conduct of the members creates disorder, within the four walls of the House affecting the proceedings of the House or lowers the dignity of the House. According to him, the conduct for which a member of the Assembly is to be expelled must have nexus with his duties as a member. In addition, it was contended that when a similar question arose in the Madras Legislative Assembly, the Speaker in his ruling dated 16th March, 1964, had with regard to a point raised whether the members of the Assembly belonging to D.M.K. Party, who have publicly announced that their policy was to burn a part of the Constitution could be allowed to function as members of the Assembly in view of the fact that these members have broken or proposed to break the oath they have taken that they will bear true faith and allegiance to the Constitution as follows:- “In the House a member has freedom of speech but this freedom is subject to the provisions of the Constitution and rules of procedure. But this freedom does not apply to speeches made outside the House. It may not be possible to take cognizance of activities of members which have no bearing on their legislative duties. The Act complained of has no connection with the work of a legislator as it legislator. Such acts are subject to the operation of the law of the land. Members are answerable to such acts in the same way as other citizens.” He also adopted the argument that the expulsion would add to the disqualifications and adding or superimposing a disqualification was not within the realm of Art. 194(3) of the Constitution of India. According to Mr. Mohan Parasaran the resolution passed by the Assembly was law within the meaning of Art. 13 and in as much as the State legislatures do not have legislative competence to enact a law or pass resolutions disqualifying or expelling its members on the ground that they have committed an offence by violation of oath, because the power to legislate vested only in the parliament under Entry 72 and 93, the action of the State Legislature was bad in law. He also adopted the argument that the power to expel was a part of the power of the Legislature to regulate its own composition which in view of the decision in the U. P. reference case was not available to the Indian Legislatures. He canvassed for acceptance of the majority decision in Hardwari Lal’s case (ILR (1977) 2 Punj & Hry 269)(FB). An argument was also advanced by him that having regard to the unreasonableness and arbitrariness of the procedure adopted by the House, the right of the petitioner to continue as a member of the House was violated and the resolution was therefore violative of Art. 14 of the Constitution of India. Violation of Article 19(1)(a) and (c) was also argued. He went further and argued that the right of the petitioner under Art. 29(1) was also violated by the resolution of expulsion in as much as such expulsion had paralysed the very functioning of the D.M.K, party as an effective opposition party and such constituted an inroad into the fundamental principle of democracy and the democratic system in India which was the basic structure of the Constitution.

19. Arguments in support of the contention that the resolution of expulsion is invalid have also been Advanced by Mr.Selvaraj who has in a separate Writ Petition, W.P. No. 857 of 1987 challenged the earlier ruling of the Speaker by which he hid expel the petitioner in W,P.No. 857 of 1987 along with six other members of the Legislative Assembly. That argument will be dealt with separately. .

20. Mr. Raju appearing on behalf of the petitioner in W. P. No. 932 of 1987 has argued that if the privilege of expulsion of a Member has not been exercised till the coming into force of Section 26 of the Constitution (Forty Fourth Amendment) Act, 1978, i.e. till the 20thJune, 1979, when the Constitution (Forty Fourth Amendment) Act came into force, it could not be exercised by the Tamil Nadu Legislative Assembly. He also supported the argument or Mr. Selvaraj that on an earlier occasion a ruling was given by the Speaker of the Tamil Nadu Legislative Assembly on 163-1964 when a question of privilege was raised when the D. M. K. Members who then formed the main opposition on in the Assembly had announced publicly that their policy was to burn a part of the Constitution. The question of privilege which was raised by a Member, S. Nanjundan Row was stated by the Speaker as follows:- “All the members of this Assembly have taken oath before entering office that they will bear true faith and allegiance to the Constitution of India as by law established and that they will faithfully discharge the duty upon which they are about to enter. Now I wish to raise a question of privilege whether the D.M.K. Party members, who form the main opposition in the Assembly, having publicly announced that their policy is to burn a part of the Constitution, can be allowed to function as Members in the Assembly, since they have flagrantly broken or propose to break the solemn oath taken by them”. Then Speaker of the Assembly, however, held that the matter raised did not involve any breach of privilege. The relevant part of the ruling given by the Speaker is as follows:-

“The Constitution of a country is regarded as a symbol sacred to the nationalism of the State and if one does not respect such national symbols he does injury to the very conception of the unity of the State itself. The national character of the Constitution should be respected by one and all. Definite procedures have been laid down in the Constitution itself for amending the provisions and they must be followed whenever a party or members seek to amend the same. Burning a part of the Constitution does not amount to amending the Constitution. It is proper way at all. In the House a member has freedom of speech but this freedom is subject of the provisions of the Constitution and rules of procedure. But this freedom does not apply to speeches made outside the house. It may not be possible to take cognizance of activities of a members which have no bearing on their legislative duties. The act complained of has no connection with the work of legislator as a legislator. Such acts are subject to the operation of the law of the land. Members are answerable to such acts in the same way as other citizens. Burning the Constitution is an offence A Member should not state in the House that he will burn the Constitution; thereby he will be stating that he would be breaking the law. The freedom of speech should not be used for such purposes., The matter raised by the Hon. Member does not therefore involve any breach of privilege”.

21. The power of the Legislature Assembly to expel a Member was also contested by Mr. Kalyanasundaram who appeard for the petitioner in W.P. No. 523 of 1987 by Mr. Ganapathy who appeared in W.P. No. 523 of 1987 by Mr. P.S. Raman who appeared in W.P. No. 1106 of 1987 and by Mr. Ravi who appeared in W.P. No. 1107 of 1987.

22. As we have already pointed out, there is no appearance on behalf of the Speaker and we reqested the learned Advocate General to assist us in arriving at the right decision since the matter was of considerable importance and related to the expulsion of ten members of the Legislative Assembly. Substantially, the learned Advocate General has argued that the minority judgment in Hardwari Lai v. The Election Commission of India, ILR (1977) 2 Punj & Har 269 (FB) and judgment of the Madhya Pradesh High Court in Yeshwant Rao vi M.P. Legislative Assembly laid down the correct position of law. He argued that the power of expulsion is an independent privilege of the Legislative Assembly as it is of the House of Commons and it is not a part of the power of the House of Commons to regulate its own composition. Such a power, according to the learned Advocate General has been exercised both by the House of Commons and by the Indian Parliament as also by the State Legislatures in Madhya Pradesh and Punjab & Haryana. He has referred us to several instances to which we shall make reference later and to the decision of the Supreme Court in M.S.M. Sharma v. Sri Krishna Sinha in which according to the learned Advocate General the power of expulsion has been recognised by the Supreme court. The learned Advocate General has argued that the power of expulsion was exercised by the House of Commons as a punitive power and such a power is not incompatible with any of the provisions of the Constitution and particularly Articles 170,172, 190 and 191 of the Constitution of India. With regard to the grievance that most of the members of the Legislative Assembly who were expelled were not given any opportunity of putting their case before the House, the learned Advocate-General argued that the procedure adopted by the Legislative Assembly is not open to judicial scrutiny. His argument was that expulsion of a member from the Leislative Assembly does not result in any disqualification as contemplated by the provisions of the Constitution or by Section 8 of the Representation, of the Act, 1951 and the petitioners were therefore not right when, they argued that by upholding the power of expulsion a new disqualification was being added to those which are originally contemplated by the Constitution of India.

23. Before we consider the various arguments which have been advanced before us, it is necessary to carefully analyse the resolution of expulsion. It. may be pointed out at the outset that the facts stated in the resolution are not at all in dispute. The resolution of expulsion in its preamble refers to three facts. These facts are: (1) the Executive Committee of the Dravida Munnetra Kazhagam had resolved in its meeting on 9th November, 1986 that the portion of part XVII of the Constitution of India should be burnt in public meetings to be held between the period commencing on 17th Nov., 1986 and ending with 17th December, 1986 at various places in the State and that this resolution has been publicized in a newspapers and public meetings. (2) some members of the Dravida Munnetra Kazhagam party have burnt in public places a copy of the part of the Constitution of India (such part being document containing excerpts being either in writing or printing or in any other mode of representation or reproduction in a visible form). (3) ten members of the Legislative Assembly named in the resolution, who belonged to Dravida Munnetra Kazhagam have burnt in public places a copy of the part of the Constitution of India referred to above in the form of a document or paper containing excerpts from the Constitution in writing or printing. The resolution then refers to the f act that the said conduct was not only an act of violation of the oath or affirmation made and subscribed as Members undertaking to bear true faith and allegiance to the Constitution of India under Art. 188 of the Constitution of India read with R. 4(1) of the Legislative Assembly Rules, but such conduct also amounts to lowering the, regard for the Constitution, the regard for the Legislative Assembly constituted under the Constitution and “the regard which a member of the House should have”. The resolution also refers to the fact that the conduct is derogatory to the dignity of the Constitution as well as the dignity of the House and was wholly inconsistent with the standards which the House expects from its members. The ten members named in the resolution were thus considered as unfit to be Members of this House on account of their above said conduct.

24. The above analysis of the resolution of expulsion will thus show that though the resolution referred to the violation of the oath or affirmation under which the Members undertook to bear true faith and allegiance to the Constitution of India, it was founded on the conduct of the elected members of the Legislature which the Legislative Assembly considered to be derogatory to the dignity of the Constitution as well as the dignity of the Legislative Assembly and these members were therefore considered unfit to be members of the Legislative Assembly. Conduct of a person may have more than one consequences. In the instant case, it-may have resulted in violation of oath but at the same time the conduct has also been constituted as unbecoming of an elected representative of the people. It may also amount to an offence as in the instant case.

25. At this stage, it is necessary to refer to the provisions of the Prevention of insults to National Honour Act, 1971. This Act came into force on 23rd December, 1971. The statement of objects and reasons of this Act noticed the fact that there have been cases involving deliberate disrespect to National Flag, the National Anthem and the Constitution and the recurrence of such incidents had to be prevented. Since disrespect to the National Flag and the Constitution or the National Anthem was not punishable under any existing law or it was absolutely necessary to prevent public acts of insults to these symbols of sovereignty and the integrity of the nation, the Act was being enacted. The object of the Act was to make, punishable overt acts of insult to and attack on the national symbols by burning, trampling, defiling or mutilating in public. But it was made clear that the Act was not intended to prohibit honest and bona fide criticism of the symbols.

26. S. 2 of this Act made certain acts which amount to insult to the National Flag and the Constitution of India, as offences punishable with imprisonment which may extend to three years, or with fine, or with both. S. 2 of this Act reads as follows:- “Insult to Indian National Flag and Constitution of India:- Whoever in any public place or in any other place within public view burns, mutilates, defaces defiles, disfigures, destroys, tramples upon or otherwise brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both. Explanation 1:- Comments expressing disapprobation or criticism of the Constitution or of the Indian National Flag or of any measures of the Government with a view to obtain an amendment of the Constitution of India or an alteration of the Indian National Flag by lawful, means do not constitute an offence under this Section. Explanation 2:- The expression ‘Indian National Flag’ includes any picture, painting, drawing or photograph or other visible representation of the Indian National Flag, or of any part or parts thereof, made of any substance or represented on any substance. Explanation 3:- The expression ‘Public Place’ means any place intended for use by, or accessible to, the public and includes any public conveyance.”

27. Now the very fact that the Parliament was required to enact a legislation for the prevention of insults to the National Flag the National Anthem and the Constitution which are essentially symbols of the sovereignty of the country itself shows that there were people in this country who notwithstanding the adoption of a written constitution were bent on creating discord by showing utter disrespect to the symbols of sovereignty of the country the Parliament by enacting Explanation 1, expressly saved the democratic right to dissent in the exercise of which a citizen may express disapprobation or criticism of the Constitution or of the Indian National Flag or take recourse to democratic remedies to obtain an amendment of the Constitution or an alteration of the Indian National flag and such lawful means were by first explanation expressly stated to be not constituting an offence under Section 2. Reading the main part of S. 2 and the Explanation and even otherwise, it is obvious that burning or defiling the constitution or the National Flag or doing any act specified in S. 2 in respect of the Indian National Flag of the Constitution of India, can by no stretch of imagination fall within Explanation 1and if an act of a person falls within the four corners of S. 2, it will obviously amount to an offence. The act becomes more serious and liable to be condemned when an elected representative of the people who but for the provisions of the Constitution and the Representation of the People Act would not have been able to claim the representative status goes to the extent of burning or defiling or destroying the Constitution or a part of the Constitution. It was for the House to decide how to deal with such a member.

28. It is now necessary to refer to certain provisions of the Constitution of India. Art. 173 of the Constitution of India refers to qualifications for membership of the State Legislature, which reads as follows: ” 173. A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he –

(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in Third Schedule.

(b) is, in the case of a seat in the Legislative Assembly, not less than “twenty-five years of age and in the case of a seat in the Legislative council, not less than thirty years of age, and

We are not concerned with the qualifications referred to in cls. (a) and (b). Clause (a) refers to the oath or affirmation to be made by a candidate when he stands for election and clause (b) refers to the minimum age for person who wants to stand for election. The law made by the Parliament referred to in cl. (c) of Art. 173 is the Representation of the people Act, 195 1. S. 8 of the said Act reads as follows:

8. Disqualification on conviction for certain offences: – (1) A person convicted of an offence punishable u/s. 153A or S. 171E or S. 171F or sub-section (2) or sub-section (3) of S. 505 of the Indian Penal Code (45 of 1860) or under the protection of Civil Rights Act, 1955 (22 of 1955) or u/s. 125 or S. 135 or clause (a) of sub-section (2) of S. 136 of this Act shall be disqualified for a period of six years from the date of such conviction. (2) a person convicted by court in India for any offence and sentenced to imprisonment “for not less than two years shall be disqualified from the date of such conviction and, shall continue to be disqualified for a further period of five years since his release; Provided that a person convicted by a court in India for the contravention of any law providing for the prevention of hoarding or profiteering or of adulteration of food or drugs and sentenced to imprisonment for not less than six months shall be disqualified from the date of such conviction and shall continue to be disqualified for further period of five years since his release. (3) Notwithstanding anything in sub-section (1) and sub-section (2), a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a members of parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the Court. Explanation: (not reproduced as not relevent)” Sub-section (1) of S. 8 refers to convictions for certain offences and irrespective of the nature of punishment awarded for the offences specified therein, a mere conviction results in person being disqualified for a period of six, years from the date of such conviction; Sub-section (2) refers to: a disqualification of a person who, is convicted for any offence by court in India and sentenced to imprisonment for not less than two years. The disqualification remains effective for a period of two years from the date of such conviction and for a further period of five years since the release of the person so convicted. The proviso specifies certain offences under a law providing for the prevention of hoarding, or profiteering or of adulteration of food or drugs and in such a conviction if the person is sentenced to imprisonment for not less than six months, he is disqualified from the date of such conviction and will continue to be disqualified for a further period of give years. Thus, the proviso to sub-section (2) carves out certain specific offences and a conviction for a period of six months is enough to disqualify a person. Sub-section (3) deals with the specific case of a person who on the date of conviction is a member of Parliament or Legislature of a State and it provided that the disqualification shall not take effect until three months have, been elapsed from the date of conviction or if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the Court. We have not reproduced the explanation because it specified what is the law providing for the prevention of hoarding or profiteering and gives the meaning of drug essential commodity and ‘food’ referred to in the proviso.

29. It maybe stated at this stage that one of the arguments advanced before us was that none of the members who have been expelled has been convicted for a period not less than two years and the prevention of Insults to National Honour Act is not one of the enactments specified in sub-section (1) and therefore the disqualification contemplated by Section 8 has not been incurred by any one of the members. Now, there can be no doubt that the resolution of expulsion is not based on the circumstances contemplated by Section 8 of the Representation of the people Act. We shall however, later refer to tile argument that the resolution of expulsion has the effect of adding to the disqualifications when S. 3 Which is a specific provision providing for disqualifications in respect of certain offences, does not refer to a conviction under the Prevention of Insults to National Honour Act.

30. A reference was made by Mr. Raghavan to Section 11 of the Representation of People Act, 1951, Which reads as follows: –

“11 Removal or reduction of period of disqualification – The Election commission may, for reasons to be recorded, remove any disqualification under this, chapter except under Section 8A or reduce the period of any such disqualification.” The argument was that the authority nominated by the Statute to remove, the disqualification is the Election Commission. We are not able to appreciate how Section 11 is of arty relevance to the question raised before us. Adminittedly, if any of the disqualifications contemplated in S. 8 is not relevant for the purpose of validity of the expulsion resolution, the references to Section 11 and the powers of the Election Commission also becomes inapt.

31. We must then refer to Art. 188 of the Constitution of India which reads as follows : –

“188. Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule”. Article 188 constitutes a constitutional mandate that the person elected as a member of the Legislative Assembly or the Legislative Council of a State cannot take his seat unless he makes and subscribes an oath or affirmation according to the form set out for the purpose in the Third Schedule the relevant form is form VII-8 in the Third Schedule wh1cfireads as follows: – “1. A.B. having been elected (or nominated) a member of the Legislative Assembly (for Legislative Counsil) do swear in the name of God/solemnly affirm that I will bear true, faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharged the duty upon which I am about to enter”. The Constitution makers have made it clear to the person who is elected and claims to represent his constituency that during the tenure of this membership of the Legislative Assembly or the Legislative Council, as the case may be, he will bear faith and allegiance to the Constitution of India as by law established and that lie will uphold the sovereignty and integrity of India and further that he will faithfully discharge the duty as a member of the legislative Assembly. The making of the oath or affirmation as contemplated in Art. 188 of the Constitution of India is not an idle formality. Unless the oath or affirmation in the prescribed form is made, an elected representative of the people cannot sit in the House and function as such. The elected representative of the people is therefore duty bound to bear true faith and allegiance to the Constitution of India as by law established and to uphold the sovereignty and integrity of India. Burning a part of the Constitution is in terms a breach of this oath, of which there can he no doubt.

32. Then we must reproduce the provisions Arts. 190 and 191 of the Constitution of India on which vehement reliance has been placed by all the counsel. We come to the crucial provision in Art. 194 of the Constitution of India. These Articles read as follows : – “190(1) No person shall be a member of both Houses of the Legislature of a State and provision shall be made by the Legislature of the State by law for the vacation by a person who is chosen a member of both Houses of his seat in one House or the other, (2) No person shall be a member of the Legislature of two of more States specified in the First Schedule and if a person is chosen a member of the Legislatures of two or more such States, then at the expiration of such period as may be specified in rules made by the President, that person’s seat in the Legislatures of all such States shall become vacant, unless he has previously resigned his seat in the Legislatures of all but one of the States. (3) if a members of a House of the Legislature of a State –

(a) becomes subject to any of the disqualifications mentioned in cl. (1) or cl. (2) or Art. 191; or

(b) resigns his seat by writing under his hand addressed to the speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant : Provided that in the case of any resignation referred to in sub cl. (b), if from information received or otherwise and after making such inquiry as he thinks fit, the speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation. (4) if for a period of sixty days a member of a House of the Legislature of a Stated without permission of the house absent from all meetings thereof, the House may declare his seat vacant:

Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days.

191.(1) A person shall be disqualified for being chosen as, and for being a member of the Legislative Assembly or Legislative council of a State –

(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule other than an office declared by the Legislature of the State by law not to disqualify its holder: (b) if he is of unsound mind and stands so declared by a competent court:

(d) if he is not a citizen of India, or has voluntarily acquired citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign state:

(e) if he is so disqualified by or under any law made by the Parliament.

For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister 6ither for the Union or for such State. (2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.

194(l) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.

(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority, of a House of such a Legislature of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coining 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.”

33. We are really concerned with Article 194(3) of the Constitution of India. It is well known that Article 194(3) as it stands today is different from what it was on 26th January, 1950. Article 1940) as it originally stood on 26th of January, 1950 read as follows. “In other respects, the powers, privileges and immunities of a House of the Legislature of a State and of the member and the Committees of a House of such Legislature, shall be such as may from time to time be defined by the legislature by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees at the commencement of this Constitution. ”

34. Article, 194(3) was sought to be, replaced by the Constitution (Forty-second Amendment) Act, 1976, which read as follows

“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 those of that House, and of its members and committees, at the commencement of Section 34 of the Constitution (Forty-second Amendment) Act, 1976, and. as may be evolved by such House of the Legislature of a State, so far as may be, in accordance with those of the House of the People, and of its members and committees where such House is the Legislative Assembly and in accordance with those of the Council of States, and of its members and committees where such House is the Legislative Council”. It is well known that this relevant provision never came into force and the original Art. 194(3) came to be amended. The effect of the amendment was that in matters which are not covered by Art. 194(1) and (2), 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, were to be such as from time to time defined by the Legislature by law, but, until so defined, the powers, privileges and immunities will be those of the House and of its members and committees immediately before the coming into force of Sec. 26 of the Constitution (Fourty-forth Amendment) Act, 1978. The Constitution (Forty-fourth Amendment) Act came into force on 20th June, 1979. The effect of this amendment was that whenever a question of privilege arises the relevant point of time for ascertaining whether a similar privilege was exercised by the House or its members and committees, had to be determined with reference to 20th June, 1979.

35. The argument on behalf of the petitioner in the petitions has really proceeded on the tooting that the House of Commons had the privilege of expelling a member, but, that such a power of expulsion properly forms part of the privilege of the House of Commons in regard to its own constitution. The argument is that though the House of Commons had the privilege in regard to its own constitution, such a privilege is not available to a Legislative Assembly in India because the manner and the procedure for its constitution are regulated by the express provisions of the Constitution of India and the provisions of the Representation of the People Act. The sheet anchor of the argument advanced on behalf of the petitioners is the observation made by the Supreme Court in the U. P. reference case of the Judgment. While dealing with the argument of Mr. Seervai who appeared on behalf of the Legislative Assembly of U.P. that Art. 194(3) of the Constitution expressly provides that all powers which vested in the House of Commons at the relevant point of time vested in the Legislative Assembly, the Supreme Court observed that such a broad claim cannot be accepted in its entirety because there are some powers which cannot be claimed by the House. Giving illustration as to how some of the privileges enjoyed by the House of Commons could not be available to a Legislature constituted in accordance with the provisions of the Constitution of India and the Representation of the People Act, the Supreme Court referred to the privilege of freedom of access which exercised by the House of Commons as 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. The Supreme Court pointed out that such a privilege could not be claimed by the U.P. Legislature. Similarly observed the Supreme Court, the privilege to pass acts of attainder and impeachments cannot be claimed by the House. The Supreme Court then made the following observations which have been the basis of challenge to the impugned resolution of expulsion. “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 controverter elections; and thirdly, by determining the qualifications of its members in cases of doubt. This privilege again, admittedly, cannot be claimed by the House. Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House.” The argument is that the privilege of expelling a member of the House of Commons has been described by May in his book on Parliamentary Practice and by other authors .as being a part of the privilege in regard to the constitution of the House of Commons and since a Legislature in India whose constitution is governed by the provisions of the Constitution and the provisions of the ‘Representation of the People Act, cannot claim any privilege with regard to its own constitution, the power of expulsion cannot be said to be a privilege exercisable by the Legislative Assembly in India.

36. Now, undoubtedly, the observations made by the Supreme Court quoted above refers to three ways in which the House of Commons could claim a privilege with regard to its own constitution and having regard to the express provisions in the constitution and the provisions of, the Representation of the People Act, none of those three privileges could be claimed by the Legislative Assembly in India.

37. The question which necessarily falls for consideration therefore is whether the power of expulsion exercised by the House of Commons is to be wholly and exclusively treated as a part of the privilege in regard to its constitution. The value of Erskine May’s treatise on Parliamentary Practice, as a guide to determine the powers of the House of Commons is now well recognised and indeed in the decisions in M. S. M. Sharma’s case, and in the U.P. reference case the Supreme Court has extensively drawn on the extracts from May’s Parliamentary Practice. In paragraph 70of the Judgment in the U.P. reference case the Supreme Court observed, that while considering the question of the powers privileges and immunities of the English Parliament it would be quite safe to base ourselves on the relevant statements which have been made in May’s Parliamentary Practice, It was pointed out that this Work has assumed the status of a classic on the subject and is usually regarded as an authoritative exposition of Parliamentary practice and that it would be an exercise in futility to attempt to deal with the question, otherwise than by reference to May. The Supreme Court reproduced the concept of Parliamentary Privilege. The meaning of the concept of Parliamentary Privilege as set out by May is clear when the learned Author observed at page 64, 18th Edition, thus: “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”. Referring to the nature of the enquiry to ascertain whether certain powers, privileges and immunities which were claimed by Legislative Assembly subsisted at the commencement of the Constitution, the Supreme Court in the U.P. reference case observed as follows: “It is well known that out of a large number of privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was on existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was recognised by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English Courts, it would still be upheld under the latter part of cl. (3) only on the ground that it was in fact claimed by the House of Commons. In other words, the enquiry which is prescribed by this clause is the power in question shown or proved to have subsisted in the House of Commons at the relevant time ?” It may be proper at this stage to notice an argument advanced before us on behalf of some of the petitioners that if it was not shown English Courts had recognised a particular power or privilege, then the said power or privilege would not be available to the Legislature in India under Art. 194(3) of the Constitution. This argument in our view is based on a misconception about the observations made by the Supreme Court in paragraph 34, when the Supreme Court observed that if a particular power was claimed by the House of Commons and it was not recognised by Courts in England, that power would not be available to a Legislature in India, the obvious effect of those observations was that a power which was expressely negatived by the English Court though claimed by the House of Commons cannot be claimed by Legislature in India under Art. 194(3) of the Constitution of India. Those observations cannot be read as laying down that as long as a power is not expressly recognised by the English Courts that power or privilege did not vest in the House of Commons and consequently that power or privilege was also not available to a Legislature in India. It is unthinkable that every power or privilege of the House of Commons or the occasion of its exercise would be tested in a court of law in England and until so tested the power or privilege was not available. There is therefore no substance in the contention that since the power of expulsion is not expressly recognised by the Courts in England, that power was not available to the House of Commons and consequently was not available to the legislature in India. Indeed, several instances of expulsion have occurred in the history of the House of Commons and that itself shows that the power of expulsion was repeatedly exercised.

38. Chapter V III in May’s Parliamentary Practice, deals with ‘other Privileges claimed for the Commons’ and one of the privileges ‘referred to a ‘privilege of the House of Commons with respect to its own constitution and that Chapter contains the paragraph which is reproduced in paragraph 45 of the Judgment in the U.P. reference case the relevant paragraph reads its follows “It is a privilege of the House of Commons to, provide for its own proper constitution as established by law.

The Privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the house of a Parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in cases of doubt. The procedures by which these matters are regulated are described in detail in the chapters relating to elections and to disqualification”. May has also pointed out that “Up, to the passing of the House of Commons Disqualification Act, 1957 (since when no case has arisen, it was the practice to refer the matter in the first- instance to a select committee without as a rule, any previous debate in the House. Whichever way the House might proceed, the decision would be entirely within its hands, and there would, of course, be no question of an appeal to a court of law (see page 119 of May’s Parliamentary Practice, twentieth Edition). Chapter 11 deals with Elections and Chapter III deals with Disqualification for Membership of either House. This qualification for membership of the House of Commons stated in Chapter III are: a person being an alien, a person being under 21 years, lunacy or idiocy, bankruptcy, treason, corrupt practices at elections, and conviction for certain crimes. Under the heading other crimes’ in Chapter III, it is pointed out that the statutory disqualification which the Forfeiture Act, 1870 imposes on any person convicted of treason previously extended to any person convicted of felony and sentenced to death, preventive detention or corrective training or any term, of imprisonment exceeding twelve months’. It is then pointed out that the words ‘in quotation mark in the Forfeiture Act, 1870 were, however, repealed by the Criminal Law Act, 1967 which abolished the division of crimes into felonies and misdemeanors. After the passing of the Criminal Law Act the position with regard to all criminal convictions was similar to the position with regard to misdemeanors before its passing. It is pointed out that the person convicted of misdemeanor (or sentenced to any lighter penalty than those described in Section 2 of the Act of 1870) was not thereby disqualified for election or for sitting and voting, but when a member was so convicted, the House might decide to expel him. Expulsion, however, did not in itself create a disability or prevent a constituency from re-electing the expelled member.

39. An argument was advanced by Mr. Raghavan that conviction for misdemeanor did not invite a disqualification for election or for sitting and voting. The argument appears to be that if a conviction for misdemeanor did not disqualify a member of the House of Commons, similarly even a conviction for an offence under the Prevention of Insult s to National Honour Act would also not amount to a disqualification. As we shall later point out the, whole approach of the learned counsel for the petitioners that expulsion results in a disqualification is itself misconceived. The disqualifications referred to by May are disqualifications for being a member of the House. What we are dealing with is not a case where an elected member is being expelled because hit has incurred a disqualification, but that the Legislative Assembly has thought it fit to take the view that the conduct of the elected members of the Legislative Assembly in burning a part of the Constitution rendered them unfit to continue as members of the House.

40. In so far as the express concept of expulsion is concerned, May in his treatise in Chapter IX dealing with Penal jurisdiction of the House of Commons has referred to suspension and expulsion as being two other penalties-available to the House of Commons in cases of contempts committed against the Rouse. Dealing with expulsion under the heading Expulsion by the Commons May at Page 139, 20th edition, observes as follows : – “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. 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 duties as Members of the House; of conduct unbecoming the character of an officer and a gentleman;- and of contempts, libels- and other offences .committed against the House itself.’ May has therefore preferred to treat the power of expulsion as a part of the power of punishment.

41. It is necessary to point out that ‘in Ridges’ Constitutional Law, Eighth Edition the learned Author has grouped under two heads the rights and privileges of the House of Commons. At Page 61, the learned Author observes as follows : “Privileges of the House of Commons -The List of Privileges

Certain privileges are claimed by the Speaker at the beginning of each Parliament as the ‘ancient and undoubted rights’ of the Commons, which the Lord Chancellor on behalf of the Crown ‘Most readily confirms’. These and other rights may be grouped under two heads. Those demanded of the Crown by the Speaker of the House of Commons at the Commencement of each Parliament and granted as a matter of course. These are – (a) Freedom from arrest, –

(b) Freedom of speech,

(d) The right of having the most favourable construction placed upon its proceedings.

The second group comprises those not demanded by the Speaker. These are –

(a) the right to provide for the due, composition of its own body.

(b) The right to regulate its own proceedings.

(d) the right to prohibit publication of its debates.

(e) The right to enforce observation of its privileges by fine, imprisonment or expulsion.”

The learned Author has treated the power of expulsion as a power incidental to the right to enforce observation of its privileges by the House of Commons, The learned Author at page 71 observes: The right to on force its privileges, “This the House may do by admonition, reprimand, commitment to the custody of the Serjeant – at-arms or to prison, fine …. or expulsion if the offender is a member.”

42. What. is ‘important, is that these observations of the learned Author have been quoted with approval by the Supreme Court in M.S.M. Sharma’s case of the judgment referring to the second head reproduced above, the Supreme Court observes as follows: “The second head comprises (i) the right to provide for the due composition of its An body, (ii) the right to regulate its own proceedings, (iii) the right to exclude strangers, (iv) the right to prohibit publication of its debates and (v) the right to enforce observation of its privileges by file, imprisonment and expulsion. (Ridge’s Constitutional law, 8th Ed p. 61, also Halsbury’s laws of England, 2nd Edn. VoL 24, p. 351).”

43. In Halsbury’s Laws of England, Fourth Edition, Vol. 34, in paragraph 1494 it is observed as follows :

“If in the opinion of the House, a member has conducted- himself in a manner which him unfit to serve as m Parliament, he may be expelled, but, unless the cause of his expulsion by ‘the House constitutes in itself a disqualification to sit and vote in the House, he remains capable of re-election.

44. Heavy reliance, has been placed on certain observations in Anson’s Law and Custom of the Constitution Vol. I, Fifth Edition in Chapter IV in which while enumerating the privileges of the House of Commons not demanded by the Speaker the right to provide for its proper constitution is cited as one of the privileges. The learned Author has while dealing with the privilege to provide for its proper constitution, stated that this is exercised by ‘issue of writs when vacancies occur during the existence of a Parliament; by enforcing disqualifications for sitting in Parliament; and, until 1868 by determining disputed elections’ (see page 177). The right to determine questions of disputed returns was later by the Parliamentary Elections Act, 1868, assigned to a Judge of the one of the Superior Courts of Common Law and was not exercised by the Kinj’s Bench Division of the High Court. He has also referred to the determination of the validity of affections which were called in question on the ground that a candidate otherwise properly qualified for a seat has been returned in an informal manner or by persons who were not entitled to vote or by votes procured through improper inducements’ which power has now been given over to Law Courts. The learned author has then referred to expulsion on the ground of unfitness to serve. At page 182 the learned Author has observed as fo1lows : – “Cases may arise in which a member of the House without having incurred any disqualification recognized by law, has so conducted himself as to be an unfit member of a legislative assembly for instance, conviction for misdemeanour is riot a disqualification by law though it way be a disqualification in fact, and the House of Commons is then compelled to rid itself of such a member by the process of expulsion. But expulsion, although it vacates the seat of the expelled member, does not create a disqualification; and if the constituency does not agree with the House as to the unfitness of the member expelled, they can re-elect him.” It is true that this paragraph dealing with the expulsion of a member has been included as a part of discussion of the power of House of commons to regulate its own composition. It however to be further pointed out that expulsion is also expressly deal with by the same learned author as a part of the power of inflicting punishment for breach of privilege (see page 186). Dealing with different forms of punishment awarded by the House of Commons, the learned author has observed at page 187 as follows : “In the case of its own members, the House has a stronger mode of expressing its displeasure. It can by resolution expel a member and order the Speaker to issue his warrant for a new writ for the seat from which the member has been expelled. But it cannot pre vent the re-election of such a member by declaring him incapable of sitting in that Parliament ……. But expulsion is a matter which concerns the House itself and its composition, and amounts to no more than an expression of opinion that the person expelled is unfit to be a member of the House of Commons. The imposition of a fine would be an idle process unless backed by the power of Commitment. It is then, the right of commitment which becomes. in the words of Sir E. May, ‘the Keystone of Parliamentary Privilege’. It remains to consider how it is exercised and by what right”.

45. The above observations of the learned Author themselves will show that notwithstanding the fact that the matter relating to expulsion concern the House itself and its composition, the learned Author himself has also treated it as a stronger mode of expressing the displeasure against a -particular member for his Conduct. Similar observations that expulsion of members who are unfit to serve is included as a part of the fight of the House to regulate its own composition, are to be found in Constitutional and Administrative law by Hood Phillips, 5th Edition, at page 205 and in Constitutional and Administrative Law by Wade and Phillips, Ninth Edition, at page 198. But it is not possible for us to treat such a power of expulsion as not being available to the Indian Legislature merely on the ground that such powers and privileges, which originally vested in. the House of Commons as a part of its right to provide for its own proper constitution as established by law, are negatived by the express provisions of the Constitution of India. The position of law as it appears to us is that in substance the power of expulsion apart from being a part of the power of the House of Commons to regulate its own composition, was essentially a power which was in the nature of exercising a disciplinary control over the membership of the House with a view to see that such of the members who are unfit in the opinion of the House to continue to be its members could be expelled from membership. What is important is not that the power of expulsion was treated as a part of the power of the House of Commons to regulate its own composition, but that the power of expulsion was in fact exercised by the House of Commons also as a part of the power to punish a member.

46. There is no doubt, nor has-it been disputed before us, that such a power continued to be exercised by the House of Commons even in respect of something done by a member of the House of Commons outside the House. Such cases of exercise of power of punishment and expulsion have been elaborately catalogued in Hardwari Lai’s case (ILR (1977) 2 Punj & Har 269) (FB) in the judgment of Narula, C.J. We therefore refrain from discussing these cases exhaustively, but it” would be profitable to make a brief reference to such cases.

47. The earliest case is of expulsion of Mr. Hall, a member of the House of Commons. The complaint against him made on 4th February, 1580 was that he has written a book not only as reproaching some particular good members of the House, but also very much slanderous and derogatory to the general authority, power and state of the House and prejudicial to the validity of its proceedings…. charging the House with drunkeness, as accompanied in their counsels by Bacchus’. While Hall was brought to the Bar of the House, he tendered an apology, but the House of Commons resolved that Hall be committed to the Tower of London for six months, fined 500 marks and ‘severed And cut off from being a member of the House any more during the continuance of this present Parliament.’

48. Then there is the case of Asgill in 1707, who was a member of the Parliament and has published a book containing many profane and blasphemous expressions highly reflecting on the Christian religion, Though nothing contained in the book cast any aspersions on the House of Commons or any of its members, Asgill was expelled from the membership as being ‘unfitted for membership, by virtue of his activities as he had admitted that he was the author of the objectionable book. Thus, the House of Commons had expelled Asgill for his actions outside the House, in respect of which there was not even a conviction by any court.

49. In December, 1819 a complaint was made against Hobhouse, a member of the House of Commons that he had written a pamphlet in which it was suggested that ,nothing but brute force, or the pressing fear of it would reform Parliament.’ Hobhouse was held guilty of breach of privilege and was committed to New gate prison. This case shows that House of Commons was entitled to take i action against its members for publishing objectionable material outside the House for which a severe punishment by way of imprisonment could be awarded.

50. O’Connell, a member of the House of Commons was reported to have made a speech wherein he had Council was ‘foul perjury in the Tory Committees of the House of Commons who took oaths according to justice and voted for party’. On a complaint made on the basis of reports in two newspapers on 26th February, 1838 O’Connell was found guilty and the House of Commons resolved that he be reprimanded in his place by the Speaker for the objectionable speech delivered by him outside House.

51. In 1875 Mr. Lopes, a member of the Parliament was reported in ‘The Times’ as having referred to the Liberal party as allied to a disreputable Irish band’. Disraeli called upon Lopes to apologise so that it may be possible’ to extricate the House from the painful necessity of making this a question of privilege’. Lopes apologised and the motion was withdrawn. This illustration shows that the House of Commons could have taken action against Lopes for something done outside the House.

52. In October, 1926 a complaint was made of a each by Dr. Salter which was reported in the ‘Daily Express’ in which he said’ I have seen many members drunk in the House of Commons, and I am sorry to say that no party, is exempt’. The House of Commons resolved that the speech was a gross libel on the members of the House and a gross breach of privilege. It is true that no penalty was imposed on the member, but that does not detract from the position that a speech made outside the House was construed as amounting to a breach of privilege.

53. In July, 1930, a speech was reported in the ‘Manchester – Guardian’ that Mr. Sandham had alleged that Labour members can receive bribes to help pass doubtful bills id the interest of private individuals and further that the members of the house could get stupidly drunk, but none of those things was against the sacred traditions of the House, but were in fact in keeping with them. Action for breach of privilege was taken and the member was admonished.

54. Then in 1947 arose the case of Mr. Garry Allighan, generally known as Alligharfs case. On 16th April, 1947 Mr. Garry Allighan, a member of the House of Commons had written an article which was published in the issue of 3rd April, 1947 of ‘World’s Press News’ containing reference to the members of the House which were derogatory to their honour. The caption of the article which appeared in the newspaper was as follows: “Labour M. P. Raveals his concept of How party News Gets out. Public that pays is entitled to know”,

The objectionable paragraph ran as follows:

“Every week about a dozen different party meetings are held in the House, to none of which the press is admitted. I attend an average of six weekly. So far as recollection serves, the Evening standard has published, on an average, something about one of these per week. How do they get the stuff? Anyone with wide fleet street experience would know that there is nothing mystic about this. Every newspaper in the street has anything up to half a dozen M.Ps. on its contacts list. They always have had – what is the contacts file for, otherwise?

Some of the contacts are oft a retainer, some get paid for what they produce, some are content to accept. payment in kind -personal publicity, 1, as news editor of the Daily Mirror used to 0. K. Payments to several regular M. P. Contacts, both for stories, into and tipoffs. At least two of them were prominent Labour M.Ps. one is a Cabinet Minister of such prominence as to be in the first four of potential premiers. That is one way any enterprising newspaper gets what the party calls leaks. Another way more accurately justifies that description M.Ps. leak around the bar. Being no less human than subs. Some M.Ps. knock em back at the bar and being less absorptive than reporters, become lubricated into to loquacity’. (see page 217 of the Law of Parliamentary Privileges in U. K. and in India by Pachauri). This article was brought to the notice of the House of Commons on a complaint or breach of privilege and the matter was referred to the privileges committee and the privileges committee took the view that there was no evidence whatever to justify the general charges Trade by Mr. Allighan and the charges were wholly unfounded and constituted a grave contempt. The privileges committee further observed as follows ‘In the case of Mr. Allighan, this contempt was aggravated by the facts that he was seeking to cast suspicion on others in respect of the very matter of which he knew himself to be guilty and he persistently misled the Committee. Your committee take an exceedingly grave view of the offences committed by Mr. Allighan. He gave evidence to your Committee which they have been quite unable to accept and he indicated that he considered at that time that his duty as the employee of a newspaper took precedence over his duty to Parliament. Your Committee, consider him to have been guilty of an aggravated contempt of the House of which he is a member and of a gross breach of privilege. (see page 218 of the Law of Parliamentary Privileges in U. K. and in India by Pachauri). The editor and publisher of the newspaper was brought to the Bar of the House and was apprised of the findings of the privileges committee. He offered his apology and stated that since the article was written by a member of Parliament, who was a professional journalist, he had wrongly allowed his guard to be lowered in respect of factors which he should have considered. He however admitted his fault claiming that he had accepted the article in good faith as a matter of interest to the specialist and restricted readership of his paper and without any thought that it would be an affront to the members of the House. Then Allighan was heard. In a long: Speech he tried to explain his difficulties, referred to his clean and clear past as professional journalist and he submitted herself to the decision of the House, but asked the members I to absolve him from the charge of bribery and to accept his expression of regret for having departed from the high standards of parliamentary conduct in reporting information which he was expected to treat as treat. He regretted his mistake and stated that “nothing could be more sincere and heartfelt than my remorse for my action”.

55. After Allighan’ s speech Mr. Herbert Morrison moved two resolutions. By one: resolution both Mr. Allighan and the editor and publisher of the World’s press news were to be held guilty of a gross contempt of the House and by the second resolution it was sought to be resolved that “if it shall appear that any person hath given false evidence in any case before this House, or any Committee’ thereof, this House will proceed with the utmost severity against such offender”. A motion was moved that Allighan was guilty of dishonourable conduct. Mr Herbert Morrison moved a second motion that Allighan be suspended from the service of the House for six months and his salary as a member of the House be suspended for that period. This was not accepted and it was I resolved that Allighan be expelled from the House for his gross contempt of the House and for his misconduct. The editor and publisher was also found guilty and reprimanded.

56. Allighan’s case thus fully establishes that the House of Commons possessed and exercised the power and privilege to expel a member for an action which the House considered to be a misconduct even though the misconduct was committed outside the House. Allighan’s case also establishes that as on 26th January, ‘1950 the House of Commons had the power of a member for something which it considered improper, though done outside the House.

57. A more recent case of the House of Commons taking note of the conduct of it members outside the House is one in whicb1i Mr. Quintin Hogg, the Lord President of the Council, in a political speech on 19th March 1964 has stated thus: “No honest man since we came into power can accuse us of pursuing a reactionary or illiberal policy. Nevertheless, our elbows have been jarred in almost every part of the world by individual labour member’s partisanship of subversive activities. This is the party which is now seeking power.” On a question of privilege raised, the matter was referred to the Committee on privileges of the House of Commons. The Committee reported that no breach of privilege was committed. But it stated in the report that it bad long been recognized that the publication of any such contempt i.e., contempt outside the House, was punishable by the House. Hogg’s case sufficiently establishes that the motion for breach of privilege could be considered even in respect of speech delivered by members outside the House.

58. The last illustration available, on exercise of the power of expulsion by the House of Commons is the case of Peter Arthur David Baker. Peter Baker, a member of the Parliament it is well known that member of, the Parliament in England is referred to only member of the House of Commons was convicted for forgery and on a plea of guilty was sentenced to seven years’ imprisonment. Baker himself addressed a letter to the Speaker of the House of Commons which read as follows : – “By the kind dispensation of the Governor I am at last able to write you this short letter, in order to offer my most humble apologies; to you, and through you, to the Prime Minister of the House of Commons for the trouble I have caused you, and any discredit I have inadevertently brought upon the House, over the past months. As you know, proceedings commenced while I was recovering from my illness and I discovered, to any dismay that I was unable to vacate my seat in any way while the matter was sub judice. 1 hastened the proceedings as was possible and refused to appeal, so that you can now dispossess me of my seat without delay. I must end as I began, by begging the House to accept my most sincere apologies. I can only assure you that my regret, remorse and repentance during that past three months were doubled by the knowledge that in addition to my friends and colleagues elsewhere. 1 had also embarrassed my friends and colleagues in the House of Commons. I can only ask you And, through you them to accept this expression of these regrets. I cannot ask for your forgiveness. I dare to hope for your pity and your prayers. I hope too, that you will receive with compassion and some measure of understanding this letter to testify to my sorrow that I should have involved in my own personal inisf6rtuaes the House of Commons of which I was so proud and honoured to be a member,”

59. The Speaker of the House of Commons informed the member that lie had received the letter and after taking into consideration the letter and record of the proceedings the House of Commons passed a resolution, “Resolved, that Mr. Peter Arther David Baker be expelled from this House.

60. Baker’s case establishes the fact that the House of Commons was exercising its privilege of expelling members in respect of conduct which was not related to the House itself and which itself did-not in any way involve his capacity as a member of the House. The above illustrations will clearly indicate that the power of expulsion was exercised by the House of Commons in respect of conduct or act done outside the House and even though the act was not done in the capacity of a member of the House. This power thus subsisted not only at the commencement of the Constitution, but in the absence of anything to show that this power was given up between the commencement of the constitution and the commencement of the Constitution (Forty-fourth Amendment) Act, such a power must be held to be subsisting at the material time for the purposes of Art. 194(3) of the Constitution.

61. This power of expulsion has also been exercised in India by the Indian Legislatures. The first illustration was the case of H. G. Mudgal, who was a member of the Lok Sabha and whose conduct was derogatory to the dignity of the House and inconsistent with the standard which Parliament was entitled to expect from its numbers. The Lok Sabha passed the follow ill motion on September 25, 1951 :. – “That this House, having considered the Report of the Committee appointed on the 8th June, 1951, to investigate the conduct of Shri H. G. Mudgal, Member of Parliament, accepted the findings of the committee that the conduct of Shri Mudgal is derogatory to the dignity of the House and inconsistent with the standard which Parliament is entitled to expect from its members, and resolves that Shri Mudgal deserved expulsion from the House and further that the terms of the resignation letter he has given to the Deputy Speaker at the conclusion of his statement constitute -a contempt of this House which only aggravates his offence. (See page 215 of Practice and Procedure of Parliament, Third Edition by Kaul and Shakdher). It is not irrelevant that when this motion was passed the person who is recognized as the architect of the Indian Constitution Dr. Ambedkar as well as the first Prime Minister of the Country Pandit Jawarharlal Nehru were members of the Lok Sabha. They were also members of the Constituent Assembly which had after thorough debate incorporated Art. 194(3) as a part of the Constitution. The debate of the Constituent Assembly will show that though members of the Constituent Assembly had expressed their view that instead of keeping the nature of privileges open to discussion, the privileges should be enumerated and laid down expressly as part of Art. 194(3), this was not however accepted by the Constituent Assembly and a particular reference was made to S. 49 of the Australian Constitution by Sir Alladi Krishnaswami Iyer, another eminent member of the Constituent Assembly. Referring to the suggestion that the privileges should not be left vague as was being done and that the privileges of the members of Commons were well understood and well defined and therefore there will be no difficulty in enumerating them in a schedule, Sir Alladi pointed out that Art. 105(3) which dealt with the powers, privileges and immunities of Parliament and its members did not in any way fetter the discretion of the Parliament and that the Parliament could enlarge privileges or curtail the privileges or may have a different kind of privileges. He said you may start on your own journey without reference to the Parliament of Great Britain. There is nothing to fetter the discretion of the future Parliament of India. Only as a temporary measure, the privileges of the House of Commons are made applicable to this House”. Elaborating on the nature of the provision in Art. 105(3) of the Constitution, Sir Alladiin his speech said as follows : – “This practice has been followed in Australia, in Canada and in other Dominions with advantage and it has secured complete freedom of speech and also the omnipotence of the House in every respect. Therefore, we need not fight shy of borrowing to this extent, when we are borrowing the English language and when we are using constitutional expressions which are common to England”. (See page 149 of the Constituent Assembly Debates, Vol. VIII). The President of the Constituent Assembly made a direct reference to S. 49 of the Australian Constitution which reads as follows : –

” The powers privileges and immunities of the senate and of the House of Representatives, and of the members and the Committee of each House shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and Committees, al the establishment of the Commonwealth”. When the provision in Art. 194(3) was being debated and a similar suggestion was once again made Dr. Ambedkar pointed out that the privileges in relation to Parliament are much wider than the privilege of freedom of speech and immunity from arrest. He then said as follows : “For instance, under the House of Commons powers and privileges it is open to Parliament to convict any citizen for contempt of Parliament and when such privilege is exercised the jurisdiction of the court is ousted. That is an important Privilege. Then again, it is open to Parliament to take action against any individual member of Parliament for anything that has been done by him which brings Parliament into disgrace. These are very grave matters e.g., to commit to prison ……….NOR IS IT EASY TO SAY WHAT ARE THE ACTS AND DEEDS OR INDIVIDUAL MEMBERS WHICH BRING PARLIAMENT INTO DISREPUTE (underlining ours)

Dr. Ambedkar then proceeded to observe:

“It is not easy, as I said, to define what are the acts and deeds which may be deemed to bring Parliament into disgrace. That would require a considerable amount of discussion and examination. That is the reason why we did not think of enumerating these privileges and immunities. But there is not the slightest doubt in my mind and I am sure also in the mind of the drafting Committee that Parliament must have certain privileges, when that Parliament would be so much exposed to calumny, to unjustified criticism that the Parliamentary institution in this country might be brought down to utter contempt and may lose all the respect which Parliamentary institutions should have from the citizens for whose benefit they operate.” Dr. Ambedkar also referred to the difficulties in enumerating all the privileges of the Parliament and made particular reference to May’s Parliamentary Practice as will be clear from the following paragraph-,

“It seems to me, if the proposition was accepted that the Act itself should enumerate the privileges oi Parliament, we would have to follow three courses. One is to adopt them in the constitution, namely to set out in detail the privileges and immunities of Parliament and its members. I have very carefully gone over May’s Parliamentary Practice which is the source book of knowledge regard to the immunities and privileges or parliament. I have gone over the index to May’s Parliamentary Practice I have noticed that practically 8 or 9 columns of the index are devoted to the privileges and immunities of Parliament. So that if you were to enact a complete code of the privileges and immunities of Parliament based upon what May has to say on this subject, I have not the least doubt in my Mind that we will have to add not less than twenty five pages relating to immunities and privileges of Parliament. I do not know whether the members of this House would like to have such a large categorical statement of privileges and immunities of Parliament extending over twenty or twentyfive pages. That I think is one reason why we did not adopt that course.” .He justified the present form of Art, 194(3)in the following words

“The third course open to us was the one which we have followed, namely, that the privileges of Parliament shall be the privileges of the House of Commons. It seems to me that except for the sentimental objection to the reference to the House of Commons I cannot see that there is any substance in the argument that has been advanced against the course adopted by the Drafting Committee. I therefore suggest that the article has adopted the only possible way of doing it and there is no other alternative way open to us. That being so, I suggest that this article be adopted in the way in which we have drafted it”.

62. This is how Art. 194(3) came into being. These debates clearly indicate that what was intended to be adopted and that is clearly borne out by the phraseology in Art. 194(3) was the powers and privileges of the House of Commons as set out in May’s Parliamentary Practice which undoubtedly included the power of expulsion.

63. As observed by Mr. Seervai in his Constitutional Law of India, Third Edition, Vol. 11, paragraph 20.36: ‘The framers of the Constitution had, before them the privileges of the British House of Commons, the limited privileges of certain legislature created by the British Parliament including the Indian legislatures on which privileges of the British House of Commons had been conferred the width of which powers had been expressly affirmed by the Privy council”. Article I S. 5 of the U. S. Constitution was also before them and yet with all these models before them, they conferred the powers of the British House of Commons not only on Parliament and its Houses, but-on the House or Houses of State legislature in the language in which the British Parliament had conferred them on the State of Australia, on Australia and on Canada, language which had been interpreted by the Privy Council. As Mr. Seervai put it “It is clear therefore that the privileges on the British House of Commons were not conferred on the Indian legislatures in a tit of absentmindedness”.

64. The second clear illustration of exercise of such a power by the Indian Parliament is. the expulsion of Shri Subramanian Swamy from the Rajya Sabha as will be clear from the debates of the Rajya Sabha dated 15th November, 1976 (see Rajya Sabha Official Report, Vol. XCVII, 19176, page 45). The Leader of the House moved the following motion. “This House having considered the report of the committee appointed in pursuance of the Motion adopted by that its sitting held on September 2, 1976 to investigate the conduct and activities of Shri Subrarminian Swamy, Member, Rajya Sabha, accepts the findings of the Committee that the conduct of Shri Swamy is derogatory to the dignity of the House and its members, and inconsistent with the standards which the House expects from its members and resolves that Shri Subramanian Swamy be expelled from the House.”

65. The debates show that a reference was made to the privileges of the House of Commons in the case of Taylor and Allighan. The motion was put to vote and the motion was adopted unanimously.

66. The latest illustration of the Indian Legislature exercising the power of expulsion was the case of Mrs. Gandhi who was expelled in December, 1978 (See Practice and Procedure of Parliament, Third Edition, by Kaul and Shakdher, page 941).

67. There have been instance of expulsion in the State Legislatures apart from Yeshwant Rao’s case and HardWari Lal’s case (ILR (1977) 2 Punj & Har 269) (FB). In August, 1964 a member of the Maharashtra Legislative Assembly was expelled from the membership of the House through a motion of the Legislative Assembly for his gross disorderly conduct inside the House.

68. The learned counsel appearing on behalf of the election Commission has also given us a notification expelling Shri Suresh Seth, a member of the Madhya Pradesh Vidhan Sabha from Indore in September, 1978. The said notification reads is follows : “Consequent on the adoption of a motion by the Madhya Pradesh Vidhan Sabha on the 7th September, 1978 expelling from the House Shri Suresh Seth, a member elected to the Madhya Pradesh Vidhan Sabha from Indore constituency, he has ceased to be a member of the Madhya Pradesh Vidhan Sabha with effect from the 7th September.. 1976 afternoon.”

69. The illustrations which we have given above, in our view, sufficiently establish that subject to the considerations of the argument that the power of expulsion is incompatible with any of the provisions of the Constitution, there can be little doubt that having regard to the provisions of Art. 194(3) the Indian Legislature could exercise the power of expulsion in a case in which it thinks fit to exercise its power for conudct of a member which is considered as unworthy.

70. The next question which we must consider is whether there is any provision in the Constitution which negatives this power or with which the power can be said to be inconsistent. The argument advanced is that

Ans. 190 and 191 read with S. 8 of the Representation of the People Act must be treated as comprehensive with regard to the vacation of seat by an elected member and with regard to the disqualification for membership of a Legislative Assembly. It is further argued that breach of an oath taken by a elected member is not one of the disqualifications either under Art. 191(1) or Section 8 of the Representation of the People Act and yet by the impugned resolution of the Assembly, the elected member is being made to vacate his seat treating the breach of faith as a disqualification. Reliance has been placed on a Division Bench decision of the Constitution has defined the disqualifications of a member of the Assembly and it is not in the -power of court to change or super add to them, there being no power either expressly conferred or inferable by necessary implication by the Constitution. It was further held that even the violation of oaths taken under Art. 164(3) and 183 cannot operate as disqualification as it would amount to adding to the grounds of disqualification provided under the Constitution, and it was impermissible for the court to import an additional ground or to imply an additional disqualification.

71. The only relevant provision in Art. 190 is Art. 190(3)(a). The provision in Art. 190(3)(a) is a mandatory provision which provides that if an elected member of a House of the Legislature of a State becomes subject to any of the disqualifications mentioned in clause (1) of Cl. (2) of Art. 191 his seat shall thereupon become vacant. Clause (b) of Art. 190(3) deals with resignation with which we are not concerned. We are also not Concerned With Cf. (4) of Art. 190 which provides that the House may declare vacant the seat of a member of the House of a Legislature who is absent from the meetings thereof for a period of sixty days. Art. 191(1) Undoubtedly enumerates the disqualifications, for being chosen as, and for being a member’ of the Legislative Assembly or Legislative council of a State, Cf. (e) of Art. 191(1) refers to a person being disqualified by or under any law made by Parliament. In so far as Cl. (e) is concerned. We are concerned only with the provisions of Section 8 of the Representation of the People Act. The argument is that if none of the members of the Legislative Assembly had incurred a disqualification contemplated by Art. 191(1) or by S. 8 of the Representation of the People Act, none of the petitioner could be expelled from the House and their seats cannot be declared vacant. There are two fallacies in this argument. There can be no dispute that it is not open either to the House or to the Court to treat a person as disqualified on a ground which does not fall within the Kerala High Court in Kallara Sukuwar V. provisions of Arts. 190 and 191 read with S. 8 of the Representation of the People Act. The proposition set out by the bench of the high court in Sukumaran’s case is unexceptionable. It has however to be pointed out that the ceasing of the petitioners as member of the Legislative Assem1bly has not resulted from incurring any disqualification. We must recognise the fact that Arts. 190 and 191 and Art. 194(3) have to be construed in a harmonious manner. We have also referred in sufficient detail to the manner in which Art. 194(3) was deliberately framed because the privileges vesting in the ‘House of Commons could not have been catalogued. Not withstanding the specific provisions of Arts. 190 and 191 the Constituent Assembly by incorporating Art. 194(3) clearly recognised the power of expulsion of a member of the Legislature. Vacation of seat of the expelled member therefore does not occur as a result of incurring a disqualification as contemplated by Art. 190 or 191(1), but is the direct result of the exercise of a privilege by the Legislature which is neither controlled nor regulated by the provisions of Arts. 190 or 191(1) of the Constitution. We have already pointed out, that when reference was made in the impugned resolution to the violation of oath of allegiance to the constitution of India it was referred to in the context of the conduct of the members which came up for consideration and which ultimately was held to be derogatory to the dignity of the Constitution and inconsistent with the Standards which the House expected of an elected member. The resolution of expulsion was thus founded on a consideration of the totality the conduct which apart from being a violation of the oath, it was not in keeping with the norms expected of a member of a Legislative Assembly and was indeed highly derogatory of the expected norms. It will not therefore be correct to say that a new head or ‘disqualification was being added. The seat has become vacant because of the expulsion ,which has been ordered in the exercise of a ,privilege which vested in the Assembly, notwithstanding the provisions of Arts. 190 or 191(1) read with Section 8 of the Representation of the People Act. The fact that expulsion is not mentioned as one of the grounds on which the seat of an elected member could become vacant did not affect the power of expulsion vested under Art. 1930) (194?)(3) of the Constitution of India. This expulsion does not disqualify the expelled members from seeking re-election.

72. The decision of the Kerala High Court in Suku maran’s case cannot be of any assistance. That was a case in which one of the ministers in the State of Kerala had, at a party convention held by the Kerala Congress, in a speech aggressively exhorted for a Punjab model agitation directed against the Central Government and three other Ministers stood by him. In writ proceedings for a writ of quo warrant to it was contended that the speech undermined the sovereignty and integrity of the Indian Union and also subverted the Constitution as by law established. Making such a speech by the minister, encouraged and stood by three other ministers, according to the petitioners, amounted to violation of the oath taken by them under Art. 164(3) of the Constitution of India as well as violation of the oath taken under Article 188 of the Constitution and that such a wanton violation of the Constitutional oath entailed a forfeiture of their position both as ministers and as members of the Assembly. It was this contention which was rejected with the observation that the morality or propriety of an undesirable person continuing as a minister was essentially a political question to be dealt with and at any rate initially at the political level such as Chief Minister, the Legislature and the general public holding a watching brief over them and later by the Constitutional functionaries as provided in the Constitution itself and it was held that the Constitution having defined the disqualifications of a member of the Assembly, it was not in the power of the Court to change or super add to them, there being no power either expressly conferred or inferable by necessary implication by the Constitution.

73. Some reference was also made to the provisions of Article 172 of the Constitution of India. Art. 172(1) of the Constitution of India, merely provides that every Legislative Assembly of every State unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the Assembly provided – Now it is difficult to see how this Article even can be of any assistance. The argument appears to be that a member of the Legislative Assembly duty elected is entitled to continue for, a period five years. While it cannot be disputed that a member of a Legislative Assembly is entitled to continue for a period of five years, this will be subject to the other, provisions of the Constitution. The period in respect of a particular member could itself be curtailed if he incurs a disqualification contemplated by Art. 191. Therefore, it cannot be said that merely because Article 172 provide for a period of five years to be the duration of the Legislative Assembly each member must necessarily continue to be a member for five years irrespective of the other provisions of the Constitution. Just as by incurring a disqualification contemplated by Art, 191(1) the period of membership of an individual member will be cut short, in the case of expulsion by virtue of a privilege exercised under Art. 194(3) also, the period can be cut short.

74. At argument was also advanced that expulsion of an elected member results in the constituency which he represented going unrepresented and such a result must be avoided and this could be done only by holding that this seat could become vacant only if the disqualifications contemplated by Article 191(1) of the Constitution read with 8. 8 of the Representation of the People Act are in cuffed. It is true-that when a member is expelled the constituency which he represented may go unrepresented, But this can happen only till the seat is refilled In any case, it is difficult to see how if there is a privilege of expulsion for undesirable and disreputable conduct the exercise of the power can-be controlled by want of representation by a constituency resulting from expulsion. The fact that a particular constituency may go unrepresented because its representative has been expelled for his conduct cannot control the privilege of expulsion.

75. An argument was also advanced that Art. 194(3) must be read subject to the right under Art 194 (3) must be read as subject to the right under Art 19(1) (a) of the Constitution of India. Now, it is difficult for us to see how any reference to Art. 19(1)(a) can legitimately be made in these proceedings. Art. 19(1)(a) merely guarantees to a citizen the freedom of speech and expression. However wide a meaning may be given to the expression ‘freedom of speech and expression’, it cannot certainly take in a conduct which is necessarily made penal by a statute. The conduct in the instant case consisted of burning the constitution which is expressly punishable. It is nobody’s case that the provision of the Prevention of insults to National Honour Act which Makes defiling the Constitution or burning the Constitution an offence, is invalid. It is this conduct which became the subject matter’ of the proceedings before the Assembly and so far as the facts of the present case are concerned, there is no question of any violation of Art. 19(i)(a) of the Constitution of India arising.

76. It would now be proper to refer to the decisions of the Madhya Pradesh High Court in, Yeshwant Rao v. M. P. Legislative Assembly, and the Punjab and Haryana High Court in Hardwari Lai v. The Election Commission of India, ILR (1977) 2 Punj and Har 269 (FB). In Yeshwant Rao’s case a Division Bench of the Madhya Pradesh High Court has held on a construction of Art. 194(3) that since the House of Commons exercise the power of expelling a member not because it has the Power to regulate its own proper constitution but because it finds it necessary for its proper functioning, protection and self-preservation to expel a member offering obstruction to the deliberations of the House during its sitting, the same power cannot be denied to the Legislative Assembly of the State on the ground that it has no power to regulate its own constitution. The Division Bench alto held that Art. 194(3) on the one hand and Art. 190 and 191 on the other operate quite independent of each other and neither Art. 190 nor Article 191, nor any other provision in the constitution abridges the privileges declared by Art. 194(3). In Yeshwant Rao’s case a member of the Legislative Assembly who had run up to the dais, jumped on it and assaulted the Deputy Speaker who was presiding over the sitting of the House was expelled .This expulsion was challenged before the Division Bench of Madhya Pradesh high court on grounds similar to those raised in these petitions. Upholding the privilege of expulsion the Division bench laid down the scope of the proceeding before them. After referring to the decision in the U. P. Reference case J the Division Bench observed as follows:- “This Cour t can, therefore, judge of the existence in the House of a privilege or power claimed. But once a privilege is found to exist, it is for the House to judge of the occasion and of the manner of its exercise The court cannot interfere with an erroneous decision by the House or its Speaker in respect of, a breach of its privilege.” After referring to the decision in M.S.M. Sharmas case the Division ”Reach further observed as follows:

The occasion and the manner of the power are matters of which alone is the Judge. The validity of the proceedings in the Legislature leading to the passing of the resolutions expelling the petitioners cannot be called in question in Court as is clear from Art. 212(1) which lays down that “the validity of any proceedings in, die Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. The petitioners’ objection that the resolutions expelling them were passed without giving them any opportunity to explain the allegations against them cannot, therefore, be entertained here.”

77. Now so far as this decision was concerned, Mr. Raman and the other learned counsel argued that that was a case of gross disorderly behaviour where a member had assaulted the Deputy Speaker of the House and it was possible that the conclusion that there was a power of expulsion might have resulted in view of the particular facts of that case. This can hardly be a permissible way of distinguishing that decision. The decision elaborately discusses the power and privileges of the House of commons ad it was only, after a full consideration of the scope of Art. 194(3) that the Division Bench came to the conclusion that the Legsilative Assembly had the power of expulsion of that the Court could not interfere with the exercise of such power.

78. The only other decision which needs to be referred to so far, as the scope of Art. 194(3) is concerned, is the decision in Hardwari Lars cast ILR (1974’2 Punj: and Har 269) (FB) Mr. Raman and the other learned counsel appearing on behalf of the petitioner commended the majority decision in that case for our acceptance. We are however, with respect, unable to conquer with the view taken in the majority decision that having regard to the provisions’ of Arts. 170, 172 190, 191 and 192 read together, the power of expulsion by a majority must be held inherently alien to the written provisions, bf our constitution and therefore unavailable to the State Legislatures by the very nature of things. As We read the majority judgment, the propositions which can be called out in ,so far as they are relevant for the purpose of our case we concerned, seem to us to be the following: (1) A legislative Assembly under the Indian. Constitution has, under Art. 194(3) or otherwise, no power to provide for or regulate its constitution unlike the House of Commons in England (paragraph 262).

(2) The power of the House of Commons to expel one of its members is rooted from time immemorial in its basic privilege to provide for and regulate its own constitution.’ It is indeed in integral and indivisible fac6tof the said privilege and of no other (paragraph: 280). (3) The power of expulsion having been exercised by the House of Commons in. innumerable cases entirely unrelated to questions of either contempt or breach of privilege. Such power was exercised by virtue of the Houses basic privilege to provide for and determine its own composition and since the origin source and exercise of this power of expulsion stems from the basic privilege referred to above, there is no warrant for tracing the same to an altogether different context of the punitive powers against contempt. (Paragraph 298). (4) The power of expulsion is an additional mode of exercising the basic privilege to provide for regulating its own composition by the House of commons and even otherwise the power of expulsion can equally be well visualised as an adjunctive or necessary , procedural power to effectuate the basic purpose of that very privilege (Para 310). (5) In view of the basic premises of a Republican Democracy enshrined in the preamble of our Constitution Articles 170 and 172 prescribing the freedom of franchise and the freedom of choice for a fixed duration for the territorial constituencies of a State Legislature; and Arts. 190, 191 and 192 providing in detail for the vacation of seats and disqualifications for membership; when read together are all pointers to the fact that a power of expulsion by majority is inherently alien to the written provisions of our constitution and is therefore unavailable to the State Legislatures by the very nature of things (Paragraphs 336 and 358).

79. It is not possible to dispute the proposition that the privilege of the House of Commons in the matter of its own composition cannot be claimed by the State Legislature. Indeed, it is so held in the U.P. Reference case . But, with respect, we are unable to concur with the view taken in the majority judgment having regard to the elaborate discussion which we have already made in the earlier part of the judgment. The majority judgment seems to take the view that in the matter of determining whether there is a power of expulsion or not, the Constitutional position in the United States of America is more akin to the constitutional position in India. We have earlier referred to the debates in the Constituent Assembly and in so far as the privileges of the Legislature in India are concerned it appears that decisions by the Courts in the United States cannot be of much assistance. We may point out that so far as the question of expulsion is concerned, there is a specific provision in the Constitution of the United States of America. S. 5 of Article I of the Constitution of the United States of America reads as follows : – Section 5: (1) Each House shall be the Judge of the elections returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business but a smaller number may adjourn from day to day, and may be authorised to compel the attendance of absent members, in such manner, and under such penalties as each House may provide. (2) Each House may determine the rules of its proceedings, punish its members for disorderly behaviour, and with the concurrence of two-thirds expel a member

(3) & (4)……………………………

The position in the American Constitution therefore is that a specific, power of expulsion is given by the Constitution itself.

80. With respect to the learned Judges, it may be pointed out that the two decisions relied upon in paras 320 and 322 of the judgment were really not cases of expulsion. They appear to be cases of exclusion. In the .first case viz Julian Bond v. James Sloppy Floyd ( 1966) 385 US 116, Julian who was elected a member of the House of Representatives in Georgia had made a scathing attack on the policy of the United State Federal Government in Vietnam and the operation of the Selective Service Laws. The House of Representatives excluded him. from the House and declared his seat vacant. Julian Bond was re-elected and he was again prevented from taking oath of office. He was once again re-elected from his constituency and he challenged his exclusion and the vacation of his seat before the District Court. The District Court held against him on the ground that the action of the Georgia House of Representatives was authorised by the State law and his exclusion and disqualification did not violate his constitutional rights. The Supreme Court of the United States held that the courts had jurisdiction to review the question as to whether the Georgian House of Representatives had violated any of the Constitutional rights available to Bond or his electors and since his exclusion from membership and the vacation of his seat was violative of the constitutional rights, the action of the House of Representatives was struck down. The Supreme Court held that Julian Bond satisfied all the qualifications for membership in the Georgian Legislature as provided in the State Constitution. This case does not at all serve as a parallel to the case before us.

81. In so far as the other case of Powel v. McCormack (385 US 486) is concerned, that was also a case where the Supreme Court ruled that if a person is wrongly excluded from the Congress, he had a right to obtain redress for the House of Representative alleged unconstitutional exclusion from its membership of a duly elected congressman. (sic). The facts of that case will show that Adam Clayton Powell Jr. who was duly elected from the 18th congressional District of New York to serve in the United States House of Representatives for the 90th congress, was not permitted to take his seat pursuant to a House’s resolution. Powell then filed a suit in the Federal District Court claiming that the House could exclude him only if it found that he faded to meet the standard requirement of age, citizenship and of residence contained in Art. 1 cl. (2) of the Constitution and thus had excluded him unconstitutionally. It was not disputed that he satisfied all the qualifications. The resolution of exclusion was undoubtedly adopted by the vote in excess of two thirds of the 434 members of the Congress. But the Supreme Court took the view that Powell had not been seated a member of the House when the resolution was adopted and passed. The Supreme Court pointed that the distinction between exclusion and expulsion was not merely one of form. The following observations are material : “The Speaker ruled that the House was voting to exclude Powell, and we will not speculate what the result might have been if Powell had been seated and expulsion proceedings subsequently instituted.

Nor is the Distinction Between Exclusion and Expulsion merely one of them (underlining ours). The misconduct for which Powell was charged occurred prior to the convening of the 90th congress.”

It was pointed out that the proceedings which culminated in Powell’s exclusion case considerable doubt upon respondents’ assumption that the two thirds vote necessary to expel would have been mustered. Finally, the Supreme Court held that ‘the 90th Congress’ denial of membership to Powell cannot be treated as an expulsion.” These two decisions, with respect, do not become relevant because the question involved therein related to the power of the House to exclude a person who had been duly elected even from taking his seat.

82. It has to be noticed, even in the United States, the law is that there will be no interference by Courts with the exercise of the power of expulsion which vests in a Legislative body, though in a case of improper exclusion before the elected member has ,taken a seat his wrongfully being prevented could be a question subject to judicial review. The following passages from American Jurisprudence, Second Edition, vol. 77, page 21 may usefully be reproduced : – “19. The power of either House of congress to punish or expel its members for cause is recognised in the constitution which provides that each House may punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member. Punishment for misbehaviour may in a proper case be by imprisonment and may be imposed for failure to observe a rule for preservation of order. In the case of the Senate, the right to expel extends to all cases where the offence is such as in the judgment of the body is inconsistent with the trust and duty of a member (Re Chapman, (18W 166US661,41 Law Ed 1154)

22. Limitations : Under the federal constitutional provision that each House of Congress shall be the judge of the qualifications of its own members, congress, in judging such qualifications, is limited to the standing qualifications prescribed in the Constitution. Therefore, the House of Representatives has been held without (sic) to exclude from its membership a person who has been duly elected as a Congressman and who meets the age, citizenship and residence requirements specified in the Federal Constitution. That provision of the Federal Constitution granting the House of Representatives authority to -expel a member with the concurrence of two-thirds does not govern denial of membership in the House to a duly elected congressman, since a denial of membership constitutes an exclusion, and not an expulsion, the distinction between the two not being merely one of form. Thus, actions taken pursuant to the Federal Constitution are not automatically immune from judicial review where such actions in essence constitute exclusion of a member elect who meets the Constitution’s requirements for membership.” To the same effect is the view taken by Cooley in his ‘Treatise on the Constitutional Limitations, 1972 Edn. The learned Author expressed the view that independently of parliamentary customs and usages, the Legislative Houses in the United States have the power to protect themselves by’ the punishment and expulsion of a member. The learned Author observed at page 133 as follows: “Each House has also the power to punish members for disorderly behaviour, and other contempts of its authority, also to expel a member for any cause which seems to be body to render it unfit that he continue to occupy one of its seats. This power is sometimes conferred by the constitution, but it exists whether expressly conferred or not it is a necessary and incidental power, tuenable the house to perform its high functions and is necessary to the safety or the State underlining ours) It is a power of protection. An inscriber may be physically, mentally, or morally wholly unfit; he may be affected with a contagious disease, or insane, or -noisy, violent and disorderly, or in the habit of using profane, obscene, and abusive language. And -independently of parliamentary customs and usages, our legislative houses have the power to protect themselves by, the punishment and expulsion of a member (underlining ours) and the Courts cannot require into the justice of the decision, or look into the proceedings to see whether opportunity for defence, was furnished or not.”

83. Cherman Pritchett in his work ‘The American Constitution’ Third Edition, at page146 observes as follows,

“Expulsion and Censure : C6hgressmen are not subject to impeachment, not being regarded as ‘civil officers’ of the United States. The constitution does provide, however, that each house may expel its members by a two thirds vote, or punish them for ‘disorderly behaviour’. Congress is the sole judge of the reasons for expulsion. The offence need no be indicatable. In 1797 the Senate expelled William Blount for conduct which was not performed in his official capacity not during a session of the Senate nor at the seat of government. The Supreme Court has recorded in a dictum in understanding that the expulsion power ex tends to a H cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a member”. The power of expulsion in the United States is also recognised in respect of conduct which may not be ‘statutable offence’ and it was not committed by a member of Senate in his official character, not during the session of Congress, nor at the seat of government. In the constitution of the United States of America, prepared by the Legislative Reference Service, Library of Congress, 1964 Edition, at page 129. it has been observed as follows : – “Powers of the House Over Members: In upholding the power of the Senate to investigate charges that some senators had been speculating in sugar stocks during the consideration of a Tariff bill, the Supreme Court asserted that “The right to expel extends to all cases where the offence is such as in the Judgment of the senate is inconsistent with the trust and duty of a member’. It cited with apparent approval the action of the Senate in expelling William Blount in 1797 for attempting to seduce an American agent among the Indians from his duty and for negotiating for services in behalf of the British Government among the Indians, conduct which was not a ‘statutable offence’ and which admitted in his official character, nor during the sessions of Congress nor at the seat of government.”

84. Dealing with the power of expulsion, in the United States and highlighting the, difference between expulsion and exclusion Willoughby in “Constitutional Law of the United States, Second Edition, Page 256, observes as follows : – “This right of expulsion is to be sharply distinguished from the right to refuse to admit to membership. In the latter case, as has been seen, the questions involved are, in the main, and perhaps exclusively, those which relate to the Constitutional qualifications of those persons presenting themselves for admission or to the regularity and legality of the elections at which such persons have been selected or appointed. In the former case, that is, of expulsion, these matters may be considered, but, in addition, action may be predicated upon the personal character or acts of the parties concerned; and, as to this last matter, as will presently be seen, the chief point of controversy has been whether the acts of which complaint is made should be only those which have occurred subsequent to election and have a bearing upon the dignity of Congress and the due performance of its functions. With the acts of members elect committed prior to their election it has been strongly argued that the House should not concern themselves since the electorates should be conceded to have the right to select whom they wish to represent them in Congress, and that they should be presumed to have taken account of the characters and conduct of those whom they select. A disregard of the foregoing doctrine, it has been vainly urged, operates as a denial to the State of a right or privilege constitutionally provided for them.

In determining whether or not a member of congress has been guilty of such acts as to warrant his expulsion the House concerned does not sit as a criminal trial court, and is not, therefore, bound by the rules of evidence, and the requirements as’ to certitude of guilt which prevail in a criminal character, but only as to unfitness for participation in the deliberations and decisions of congress. In this respect, the proceedings are similar to those of impeachment.”

85. A reference to the decision of the United States Supreme Court in the decision of Re Chapman (1896) 166 US 661 : 41 Law Ed 1154 will indicate that-the power of expulsion has been recognised in the United States for almost over a century. That decision arose out of refusal of a witness to answer certain questions in a Senate enquiry. An American Senate had adopted a preamble and resolutions raising a special committee and clothing it with full power of investigation into certain charges made in designated newspapers that members of the Senate were yielding to corrupt influences in the consideration of the said legislation in the form of a tariff bill by which certain amendments providing for duties on sugar were under consideration. The specific question which the Senate committee was to enquire was “Whether any senator has been, or is, speculating in what are known as sugar stocks during the consideration of the tariff bill now before the Senate”. After referring to this subject matter of the enquiry the Supreme Court of the United States observed as follows : – “What the Senate might or might not do upon the facts when ascertained, we cannot say, nor are we called upon to inquire whether such ventures might be defensible, as contended in argument, but it is plain that negative answers would have cleared that body of what the Senate regarded as offensive imputations, which affirmative answers might have led to further action on the part of the Senate within its constitutional powers. Nor will it do to hold that the Senate had no jurisdiction to pursue the particular inquiry because the Preamble and resolutions did not specify that the proceedings were taken for the purpose of censure or expulsion, if certain facts were disclosed by the investigation. The matter was within the range of the constitutional powers of the senate. The resolutions adequatety indicated that the transactions referred to were deemed by the Senate reprehensible and deserving of condemnation, and punishment. The right to expel extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a member. 1 Story const. S. 838. Reference is there made to the case of William Blount, who was expelled from the Senate in July, 1797, for a high misdemeanor entirely inconsistent with his public trust and duty as a senator’. The offence charged against him, said Mr. Justice Story, was an attempt to reduce an American agent among the Indians from his duty, and to alienate the affections and confidence of the Indians from the public authorities of the United States, and a negotiation for services in behalf of the British Government among the Indians. It was not a statutable offence nor was it committed in his official Character, nor was it committed during the session of Congress, nor at the seat of government. Commenting on this case, Mr. Sergeant says in his work on Constitutional law, 2nd ed. p. 302 : “In the resolution, the Senate declared him guilty of a high misdemeanour though no presentment or indictment had

been found against him,, and no prosecution at law was ever commenced upon the case. And it seems no law existed to authorise such prosecution.

The two Houses of Congress have several times acted upon this rule of law, and the case may be found, together with debates on the general subject, in both Houses, of great value in Smith’s Digest of Decisions -and Precedents, senate Doc. No. 278, 53d cong. 2d. sess. The reasons for maintaining the right inviolate are eloquently presented in the report of the committee in the case of John Smith, accused in 1807 of participating in the imputed treason of Asoon Burr. I Hall, AM. L.J. 469, Smith, Dig. P. 23″.

86. Therefore, even in a democratic country like the United States the power of expulsion in respect of a conduct of an elected member of a House, inconsistent with his position and dignity has been well recognised. Such a power cannot be negatived merely on the ground that the constituency which the expelled member represented would go unrepresented. If the constituency goes unrepresented in the Assembly as a result of the act of an elected member inconsistent with the dignity and derogatory of the conduct expected of an elected member, then it is the voters who alone will have to take the blame for electing a member who indulges in conduct which is unbecoming, of an elected representative. Though the fact that a constituency may go unrepresented may not be relevant, it may be pointed out that the expulsion not being specified in the disqualifications, to lisqualify the expelled member from standing for an election again, the constituency will merely have to wait till fresh elections arc conducted.

87. In the majority judgment in Hardwari Lal’s case (I LR 11977) 2 Punj & Hry 269) (FB) the judgment of the Madhya Pradesh High Court in Yeshwant Rao’s case was sought to be got over by making an observation that the reprehensible conduct of the concerned member of the Madhya Pradesh Assembly might perhaps have warped a dispassionate assessment of the legal aspect. A fair regarding of the judgment of the Madhya Pradesh High Court would show that they have discussed the legal position and it would not be permissible to disregard that view merely on the ground that it is not the result of dispassionate assessment of the legal aspect. We are thus not inclined to concur with the view taken in the majority judgment in Hardwari Lai’s case.

88. We may now deal with the argument of Dr..Shetty that the resolution of expulsion is in the nature of a Bill of Attainder. He has placed reliance on two decisions of the Supreme Court in United States v. Archie Brown 14 Lawed 2d 484 and John. A Cummingsv. The State of Missouri (1865-67) 18 Lawed 356. Historically a bill of attainder was in England, a parliamentary act sentencing to death one or more specific persons, and was a device often resorted to in sixteenth,’ seventeenth and eighteenth centuries in England for dealing with persons who had attempted, or threatened to attempt, to overthrow the government. In addition to the death sentence, attainder generally carried with it a ‘corruption of blood’, which meant that the attained party’s heirs could hot inherit his property. The attainder was abolished by the Foefeiture Act, 1870. Now it is difficult see how the resolution of expulsion -can be even compared with a Bill of Attainder. Undoubtedly. the resolution resulted in the ‘expulsion of the elected member. A bill of Attainder is undoubtedly one which inflicts punishment without a judicial trial. But the resolution passed is not in the nature of a conviction for an offence and expulsion is not a punishment for any offence. The resolution of expulsion is in exercise of the privilege of the elected body that it shall not have one amongst them who behaves in a manner which is not in keeping with the high standards expected of an elected member. It is not therefore necessary to deal in detail with the two decisions referred to and relied upon by Dr. Shetty.

89. One of the arguments raised by Dr. Shetty is that after 1978 the State Legislatures cannot claim powers, privileges etc., on the basis of precedence established by the House of Commons and that if the power to expel a, member for violation of oath was not exercised by the House prior to 1978 or such power did not exist prior to 1978, the House cannot create such a power by passing a resolution. We have already pointed out, that according to the terms of Art. 194(3) of the Constitution all powers and privileges of the House of Commons could be exercised by the State Legislature if those privileges vested in the House of Commons as on 20-6-1979. There is nothing in Art. 194(3) which requires that in order that a privilege should be exercised after 1978 – the reference by the learned counsel to the year 1978 seems to be because of the reference to constitution (Forty-fourth Amendment) Act, 1978.in Art. 194(3) it should have been exercised at some point of time prior to 1978 the argument appears to be that if an occasion for the first time arose for the exercise of a particular privilege after 20-6-1979, it cannot be so exercised because such an occasion never arose earlier. The argument, in our view, needs merely to be mentioned to be rejected and does not merit any further consideration.

90. It is also argued that the resolution is in the nature of ex post facto law because by expelling the petitioners from the House for an alleged offence of violating the oath, the petitioners have been punished for such violation of oath. Another limb of the same argument is that the State Legislature had no legislative competence to make a law with respect to ‘oath’ and therefore it cannot reach the same subject matter i.e. oath indirectly under the guise of exercising its right or power to determine its constitution or composition, assuming however that it has -the power to determine its own composition. This argument is based on several erroneous assumptions. Firstly, as we have already pointed out, the resolution of expulsion is not in the nature of punishment for violation of the oath, but it is the expression of the decision of the House not to have among its members a person, who has conducted himself in a manner derogatory of the dignity of the House and of the conduct which is expected from a member of the House. The second assumption is that $the expulsion is in exercise of the right of the House to determine its own composition, which we earlier pointed out is an erroneous assumption. The third assumption, which is not strictly relevant is that the State Legislature has no competence to legislate in respect of ‘oath’ is itself erroneous. Item 12 in the concurrent list in the Seventh schedule to the Constitution of India contains the entrv “evidenced and oath~ recognition of laws, public acts and records and ‘ judicial proceedings”. It is therefore not correct to say that the State Legislature does not have legislative competence to legislate on the subject of ‘oath’.

91. The further argument of Dr. Shetty is that burning of the contents of Art. 3430) is a symbolic expression of disapprobation of the constitution and, since it was done to stress the need to amend suitably part XVII of the Constitution to undo what he described as a mischief created by the unfair language formula in Art. 343 the Act of the Legislators fell with explanation 1 of the Prevention of Insults to National Honour Act, 1971 and was not an offence within the meaning of S. 2 of the Act. A bare reading of Explanation I to S. 2 will show that what is permitted under that Explanation are only comments expressing disapprobation or criticism of the Constitution or of the Indian National Flag or of any measures of the Government with a view to obtain an amendment of the Constitution of India by lawful means; Explanation I is an embodiment of the accepted principle in a democracy that a citizen is entitled to voice his dissent in respect of any particular matter. But voicing a dissent by making some comments is not the same thing as burning a Constitution. The act which is not only made penal by the provisions of the Prevention of Insults to National Honour Act, 1971, but is expressly in derogation of one of the fundamental duties of a citizen incorporated in, Art. 51A of the Constitution. Art. 51A inter alia provides that it shall be the duty of every citizen to abide by the constitution and respect its ideals and institutions, the National Flag and the National Anthem. It is another rnatter that the duty to, abide by and respect the Constitution is m8tde a fundamental duty, but even without such prescription made expressly by amendment of the Constitution, it is implicit in the adoption of a written constitution,, which is given by the people of India to themselves, that as long as the Constitution, with represents the will of the people and is the supreme- law of the land is in force, it is an imperative obligation of every citizen of the Indian Republic, including those who want to voice their dissent in respect of any particular provision, to abide by the provisions of the Constitution and notwithstanding their dissent in respect of some provisions, they are bound to respect it apart from the express provision made in Art. 51-A. Overlooking all this, a conduct by an elected representative of the people in burning the Constitution can hardly be treated as a permissible method of expressing disapprobation of a constitutional provision, assuming for a moment that some provision is not to the liking of some citizens. The contention of Dr. Shetty must therefore be rejected. 92 It was contended by Mr. Ganapathy that the decision with regard to unfitness of a Member on account of the violation of oath is in the nature of exercise of a judicial power which cannot be claimed under Art; 194(3) of the Constitution and that such a power could be exercised only if a specific enactment is made. As already pointed out, the expulsion is not byway of punishment for violation of oath and cannot be treated as exercise of any judicial power.

93. More or less a similar argument was advanced by Mr. Parasaran who contended that a State Legislature did not have legislative competence to enact a law or pass resolutions disqualifying or expelling its members on the ground that they have committed an offence, such as violation of an oath and that the power to make such a legislation is vested only in the parliament, Consequently, Art. 194(3) cannot be so interpreted as to enable the State Legislature to add to the list of disqualifications. We have already indicated that the result of the resolution of expulsion is not an addition to existing disqualifications, but that it stems from the will of the House that it shall not have one among them who is unfit, according to the house to sit as a member as a result of certain conduct. The contention of Mr. Parasaran must therefore be rejected.

94. Mr. Parasaran also argued that the said resolution was violative of Art. 190(c) of the Constitution. We fail to see how sach an argument can even be entertained. The resolution does not take away any right of the expelled members to form an association as contemplated by Art. 19(1)(c) of the Constitution of India.

95. It was faintly argued that the resolution also violates the right under Art. 29(1) of the Constitution of India. It is difficult to appreciate this argument also. Art. 29(1) of the Constitution of India .undoubtedly vests in the citizens a right of having a distinct language, script or culture of its own and of conserving the same. The argument loses sight of the fact that it is the manner of agitating for a change in the constitutional provision which has attracted expulsion. Burning of a constitutional provision or a part of the Constitution, apart from the fact that it is expressly made punishable, can hardly be treated as a permissible method of conserving a language.

96. It was then contended by same counsel that the resolution of the House must be treated as law within the meaning of Art. 13. This argument was in the context of want of power in the! House to pass such a resolution which amounted to law because it would be violative of some of the fundamental rights. Now, undoubtedly law is very widely defined in Art. 13 of the Constitution. It includes any ordinance, order, bye law, rule. regulation, notification, custom or usage having in the territory of India the force of law’. The definition is an inclusive definition and though it does not include a law enacted by a Legislature because such an enactment is obviously law, it is difficult to see how the exercise of a privilege in a particular case can be treated as law within the meaning of Art. 13. The essential characteristic of law is that it is a provision of general application, though there may be a law which applies only to one case. Though it may be possible to say that the powers and privileges which are expressly granted under Art. 194(3) would be law, the exercise of that power in any given case, can, in our view, never be treated as law for the purpose of Article 13 of the Constitution. The resolution is an exercise of a power vested in the Legislature. ‘ It is not a legislative act as generally understood resulting in any legislation. We are therefore unable to accept the contention that the said resolution must be construed as a law.

97. In Raj, Narain Singh v. Atmaram. Govind, a Division Bench’ of the Allahabad High Court was dealing with the resolution of the Assembly holding two persons guilty of breach of privilege of the House. By the resolution one member was suspended ‘until the adjournment of the present sitting’ and the other member was suspended ‘until the prorogation of this session’ from the services of the House. The Division Bench proceeded to consider the nature of such a resolution and observed in paragraph 31 as follows : – “I shall now proceed to consider what the exact nature of a resolution of a house of legislature is. It was held in the famous case of ‘Stockdale v. Hansard ((1839) 9 Ad. and El)’ that a resolution of the House of Commons cannot alter the law of the land. For legislation both under the British Constitution and the Constitution as it obtains in the Uttar Pradesh State three parties are necessary. In our State the parties are the two Houses of the Legislature and the Governor. A resolution is an expression of the opinion of the House or at best a recommendation on any particular matter. It has not the status of law. A declaration or ,resolution of either House, as Dicey points out on the basis of Stockdale v. Hansard, is not in any sense a law. For no resolution of the House of Commons ordering or approving of a member’s act could be pleaded by a person as a legal defence to proceedings, either civil or criminal, against him. See (1839) 9 Ad and E. 1”. The Division Bench pointed out that even having regard to the wide language of Art. 130) the resolution could not be accurately described as a law for it was a mere expression of opinion which had a binding effect in cases of privileges.

98. It was then contended by Mr. Ganapathy, Mr. Parasaran and Mr. Raju that the resolution of expulsion was passed without the expelled members being given any opportunity of putting forth their case before the House. The procedure therefore was illegal and being arbitrary the resolution of expulsion is violative of the provisions of Arts. 14 and 21 of the Constitution of India. A provision which becomes immediately relevant in the context of this submission is the one in Art. 212 of the Constitution of India. Art. 212 reads as follows – –

“212(l) The validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of the Legislature of a State in whom powers are vested by or under this constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any Court’ in respect of the exercise by him of those powers.”

Now it appears that Art. 212(1) creates a complete bar to go into the validity of the proceedings of the Legislature. A distinction was sought to be made between illegality and irregularity and the contention raised was that Art. 212(1) refers merely to irregularity of procedure and therefore in 1he present case in which the petitioners who were not even in the House and as matter of fact they were all confined to jails, were not given any opportunity to have their say in the matter of expulsion, the procedure adopted by the House must be treated as not, irregular but illegal. Now, a decision taken without following the required procedure would in a sense be the result. of irregularity in the matter of procedure. The-re is a well-established distinction between ‘illegality* and ‘irregularity’. ‘Irregularity’ is not synonymous with ‘illegality’. ‘The term illegality’, in its common acceptance, signifies that which is contrary to the principles of law as distinguished from rules of procedure. The word ‘illegality’ is synonymous with ‘Unlawfully’. “An ‘irreguiarity’ is a want of adherence to some prescribed rule or mode of proceeding, and consists in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner ‘Illegality’ on the other hand. is properly predicable of radical defects only, and signifies that which is contrary to t he principles of law as distinguished from mere rules of procedure (see ‘Words and phrases’ permanent Edn. Vol.20,pp. 57,58,59). The whole purpose of Art. 212(1) appear to us to shut put any enquiry in the validity of a proceeding in the Assembly on the ground of a defect in the procedure. Absence of opportunity to the person who is likely to be affected by the effect of the decision of the Assembly is undoubtedly a decision which may stiffer from irregularity in procedure. The constitutional mandate cannot however be ignored and the Constitution makers clearly intended that the Legislature would not be answerable to a court in the matter of’ its proceedings on the ground of validity of procedure.

99. It has to be borne in mind that Art. 212(i) refers to the challenge to the proceedings. Proceedings themselves involve observance of some procedure and if the observance of the procedure in respect of any ‘proceeding before the House, is sought to be shutout from challenge under Art. 212(1), it is difficult to se e how the resolution of expulsion can be open to challenge.

100. This court has also taken the view in a matter arising, out of breach of privilege that the question of punishment for a breach of privilege is a matter exclusively within the jurisdiction of the Legislature and Art. 212 forecloses any scrutiny by the court with regard to the procedure adopted by the Legislature (see A. M. Paulraj v. Speaker, Tamil Nadu Legislative Assembly, ). In that decision, the observations of the Supreme Court in M. S. M. Sharma. Shree Krishna Sinha, were referred to. In paragraph 10 of the judgment the Supreme Court while dealing with the contention that the procedure adopted inside the House of Legislature was not regular and not strictly in accordance with law, on the second ground on which such contention was rejected observed as follows : — “Secondly the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed, Art. 212 of the Constitution a complete answer to this part of the contention raised on behalf of the petitioner. No Court can go into these questions which are within the special jurisdiction of the Legislature itself. 1. which has the power to conduct its own business.-

101. Art. 212 of the Constitution of India Seems to give Constitutional recognition to established position in England as laid down as far back as in 1894 in Bradlaugh v.Gossett( 1884) 12QBD271. Bradlaugh’s case is a well known case. Bradlaugh who was duly elected hurgess to serve in the house of Commons for Northampton was entitled to take the oath by law prescribed to be taken by members of the House of Commons and to sit and vote in the House as one of the representatives of Northampton. In May ,1883. when Bradlaugh required the Speaker of the House to call him to the table for the purpose of taking the oath, the speaker did not do so. The House of Commons resolved on 9th of July, IN83, that the Serjeant at-Arms do exclude Mr. Bradlaugh from the House until he shall engage not further to ,disturb the proceedings of the House”. Mr. Bradlaugh thereupon wrote a letter to the Serjeant-at-Arms asking him whether he understood the order of the House to mean that he was to prevent Mr. Bratilaugh by actual force from entering the House for the purpose of taking his seat. The Serjeant-at Arms replied that it would be his duty to exclude Mr. Bradlaugh from the House till otherwise instructed by the House or the Speaker. BradlaUgh claimed it declaration that the order of the House dated 9th July should be declared to be beyond the power and jurisdiction of the House to make all and to be void and secondly an order restrain ing the Serjeant-at-Arms from preventing Mr. Bradlaugh by force from entering the House and taking the oath as a member. Bradlaugh argued his own case. Bradlaughs contentions were rejected and there were o -bservations in that decision which require to be quoted with advantage. Lord Coleridge. C.J., observed as follows : –

“What is said or tone within the walls of parliament cannot be inquired into in a court of law. On this point all the judges in the two/, great cases which exhaust the learning on the subject, Burdett v. Abbott (IS 11) 14 East, 1, 148 and Stockdale v. Hansard ( INN) 9 Ad. & E.1; are agreed, and are emphatic. The jurisdiction of the House over their own members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord EUenborough “They would sink into utter contempt and inefficiency without it.- Lord Coleridge. C.J. then pointed out that the House -of Parliament cannot act by thernselves in a body, they 1111.1st act by officers and the Serjeant-at-Arms is a legal and recognised officer of the House of Commons to execute its orders. Holding that the Serjeant-at-Arms is protected by the decision of the House, Lord Coleridge observed its follows : — If injustice has been done.It is injustice for which the Courts of law afford no remedy. On this point I agree with and desire to adopt the language of my brother Stephen. The history of England, and the resolutions of tile House of Common, itself, show that now and then injustice has been alone by the House to individual members of it. But the remedy, it remedy it be, lies, not in actions in the courts of law(see on this subject the observations of Lord Ellenborough and Beylay, J. in Burdett v. Abt)ott. 14 East 1, 150, 151 and 160, 161), but by an appeal to the constituencies whom the House of Commons represents.” Stephen, J. who delivered the very instructive judgment posed the question as follows : – Suppose that the House of Commons forbids one of its members to do that which an Act of Parliament requires him to do, and, in order to enforce its prohibition, directs its executive officer to exclude him from the House by force if necessary, is such an order one which we can declare to be void and restrain the executive officer of the House from carrying it out’ Answering the of question in t lie Negative Stephen. J. observed as follows:- “In my opinion, we have no Such power. I think that tile House of Commons is not subject to the control of Her Majessty’s Courts in its administration of that part of the statute law which has relation to its own internal proccedings. and that the use of such actual force as may be necessary to carry into effect such a resolution as tile one before us is justifiable. Many authorities might be cited for this principle; but I will quote two only. The number might be enlarged with ease by reference to several well-known cases. Blackstone says :

‘The whole of the law and c ust6m of Parliament has its origin from this one maxim, that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which, relates and not elsewhere’. This principle is re-stated nearly in Blackstone’s words by each of the judges in the case of Stockdale v. Hansard (1839-9 Ad and EI). As the principal result of that case is to assert in the strongest way the right of the Court of Queen’s Bench to ascertain in case of need the extent of the privileges of the House, and to deny emphatically that the Court is bound by a resolution of the House declaring any particular matter to fall within their privilege, these declarations are of the highest authority. Lord Denman says; ‘Whatever is done within the walls of either assembly must pass without question in any other place.”. Littledale, J. says : “It is said that the House of Commons is the sole judge of its own privileges; and so I admit as far as the proceedings in the House and some other things are concerned”. Patteson, J. said : “Beyond all dispute, it is necessary that the proceedings of each House of Parliament should be entirely free and unshackled, that whatever is said or done in either House should not be liable to examination elsewhere”. And Colleridge, J. said : “That the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules or derogation from its dignity, stands upon the clearest grounds of necessity.” Stephen, J. further pointed out that the House, of Commons has the exclusive power of interpreting thestatute, so far as the regulation of its own proceedings within its own walls is concerned, and that, even if that interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly.

102. A contention similar to the one advanced before us was also’ advanced in Bradlaugh’s case (1884-12 QBD 271). The contention was that the resolution of the House of Commons was i Regal and admitting that the House had power to regulate its own proceeding in preventing him from taking his seat, the House went beyond matter of internal regulation and procedure, as they deprived both Bradlaugh and the electors of Northampton of a right recognized by law, which ought to be protected by the law and conflicted upon him and them wrongs which would be without a remedy if we failed to apply one. Expressing the view that the case was like the one in which a decision was wrong, but was not subject to appeal, Stephen J. observed as follows :- “The House of Commons is not a Court of Justice; but the effect of its, privilege to regulate its own internal concerns practically invests it with a judicial character when it has to apply to particular cases the provisions of Acts of Parliament. We must presume that it. discharges this function properly and with due regard to the laws in the making of which it has so great a share. If its determination is not in accordance with law, this resembles the case of an error-by a judge whose decision is not subject to appeal. There is nothing startling in the recognition of the fact that such an error is possible. If, for instance, a jury in a criminal case give a perverse verdict, the law has provided no remedy. The maxim that there is no wrong without a remedy does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong. If this were its meaning, it would be manifestly untrue. There is no legal remedy for the breach of a solemn promise not under seal and made without consideration; nor for many kinds of verbal slander, though each may involve utter ruin; nor for oppressive legislation, though it may reduce man practically to slavery; nor for the worst damage to person and property inflicted by the most unjust and cruel war. The maxim means only that legal wrong and legal remedy are correlative terms; and -it would be more intelligibly and correctly stated, if it were reversed, so as to stand, “Where there is no legal remedy, there is no legal wrong’.”

103. Dealing with the contention that the right of the burgesses of Northampton to be represented-in Parliament, and the right of their duly-elected representative to sit and vote in Parliament were affected, Stephen, J. accepted the fact that those were legal rights of the highest importance, but observed that while such of the rights which can be exercised out of Parliament could be protected by the Court, others which were to be exercised within the walls of the House of Commons were dependent upon the resolutions of the House. It was then pointed out; “In my opinion the House stands with relation to such rights and to the resolutions’ which affect their exercise, in precisely the same relation as we the judges of this Court stand in to the laws which regulate the rights of which we are the guardians, and to the judgments which apply them to particular cases; that is to say, they are bound by the most solemn obligations which can bind men to any course of conduct whatever, to guide their conduct by the law as they understand it. If they misunderstand it, or (I apologize for the supposition) willfully disregard it, they resemble mistake or unjust judges; but in either case, there is in my judgment no appeal from their decision. The law of the land gives no such appeal; no precedent has been or can be produced in which any court has ever interfered with the internal affairs of either House of Parliament, though the cases are no doubt numerous in which the Courts have declared the limits of their powers outside of their respective Houses. This is enough to justify the conclusion at which I arrive.”

104. It is this position as was settled in England by Bradlaugh’s case which seems to have been given the recognition in Article 212 of the Constitution of India.

105. We may also point out that in Yeshwant Rao’s case the Madhya Pradesh High Court has taken a similar view that once a privilege is found to exist, it is for the House to judge of the occassion and of the manner of its exercise and the Court cannot interfere with an erroneous decision by the House or its Speaker in respect of a breach of privilege.

106. We must therefore reject the contention that the impugned resolution should be quashed on the ground that it is vitiated by a procedural irregularity or illegality.

107. We must also reject the argument that since on an earlier occasion in 1964, the then Speaker of the Assembly had ruled that public announcement of certain members of the Assembly that their policy was to burn a part of the constitution did not amount to a breach of privilege and that cognizance of activities of members which have no bearing on the, legislative duties may not be possible, was binding on the Assembly and therefore the impugned resolution could not have been passed. Now, it is undoubtedly true that the earlier Speaker of the Assembly in a ruling dated 10th March, 1964, had taken the view that the speeches made outside the House which had no connection with the work of a Legislator as a Legislator did not involve a breach of privilege. Now an action relating to the breach of privilege and what constituted a breach of privilege was a matter exclusively for the House to decide. Whether the earlier decision which related merely, to a declaration that the Constitution would be burnt -should be treated as a, binding precedent in respect of a matter which arises before the House was real matter for the House to decide. It may also be pointed out that the earlier decision did not arise out of the actual act of burning the Constitution in any case, if the House has chosen to take a different view of the matter in the present case, it is hardly for the Court to go into the validity or the merits of the decision of the House.

108. An argument was advanced by Mr. Ganapathy that under S. 150 ‘of the Representation of the People Act, 1951 only vacancy which occurred in a particular manner was intended to be filled up by electing another person from the relevant Assembly Constituency. According to the learned counsel those cases- in which a bye election is contemplated were : (1) when the seat becomes vacant. (2) When the seat is declared vacant and (3) whenthe election is declared void. The argument is that a seat becoming vacant by expulsion’ is not contemplated and an anomalous result will therefore follow if a power of expulsion is vested in the Legislative Assembly because in such cases no bye-election can be held S. 150(1) of the Representation of the People Act reads as follows : – “150 Casual vacancies in the State Legislative Assemblies (1) when the seat of a member elected to the Legislative Assembly of a State becomes vacant or is, declared vacant or his election to the Legislative Assembly is declared void the Election Commission shall subject, to the provisions of sub-section (2) by a notification in the official Gazette, call upon the Assembly constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the rules and orders made there under shall apply, as far as may be, in relation to the election of a member to fill such vacancy.” It is undoubtedly true that Sec. 150(l) refers to a seat becoming vacant or a seat being declared vacant or election of a member being declared void. The argument is that the seat becoming vacant is contemplated by the provisions of Art. 190(2) and (3) and Art. 191(1) of the Constitution; that the seat being declared vacant is contemplated by the provisions of Art. 190(4) and the election being declared void is in accordance with the provisions of part of the Representation of the People Act. Now it is true that S. 150 of the Representation of the People Act does not make any reference to a seat becoming vacant as a result of expulsion. In so far as declaration of a seat to be vacant is concerned, there is undoubtedly a specific provision under Art. 190(4) of the Constitution of India. While it may therefore be possible to relate the reference to seat being declared vacant to the category of cases contemplated by Art. 190(4), it is difficult to see why the vacancy caused as a result of expulsion could not fall within the opening part of Sec. 150, which merely makes a reference to a seat becoming vacant. We must take into account the fact that Representation of People Act was enacted when the Parliament was conscious of the privileges of the Legislative bodies in India; expulsion was undoubtedly one of them and construing Art. 194(3) and Sec.150 of the Representation of the People Act harmoniously, it appears to us that there is no legal bar to holding that Sec. 150 also will cover a case of a seat becoming vacant as a result of expulsion. 108A. Accordingly, we reject all the contentions raised before us on behalf of the petitioners.

109. This brings us to the two writ petitions i.e. W.P. No. 857 of 1987 and W.P. No. 1105 of 1987 which have been filed by two of the seven persons who were earlier expelled by a ruling of the Speaker. Both these writ petitions are directed at the ruling of the Speaker of the Tamil Nadu Legislative Assembly by which the Speaker declared that seven members of the Assembly had violated the oath taken by them under Art. 188 of the Constitution of India by burning the Constitution or part of it publicly and therefore the elected members’ eligibility to sit in the House ceased and that they are disqualified to continue as members of the House. The decision of the Speaker refers to his receiving information that the seven members had publicly burnt the Constitution Part XVII. The question posed by the Speaker as it appears from the text of the decision was “The point now for consideration is whether a member after having taken oath under Art. 188 of the Constitution, can violate the oath and still continue as a member of this House”. He observed in the course of his ruling that “However unpleasant it may be, I must say that as a Constitutional functionary, I cannot be a silent spectator of burning publicly the Constitution by any member of this House.” Observing that taking oath is not a mere formality or a ritual and that an elected member’s eligibility to sit in the House arises because of-the oath he is bound to take under the Constitution, the Speaker took the view that “By burning publicly the Constitution, the said members have made it understand that they have no faith or allegiance to the Constitution of India”. The Speaker then purported to exercise what he referred to as his residuary power under R. 312 framed under Art. 208 of the Constitution, to preserve and protect the Constitution of India, In exercise of such residuary power he declared that the seven members named in the ruling “have violated the oath taken b ‘ v them under Art. 188 by burning the Constitution or part of it publicly and therefore the elected members’ eligibility to sit in this House ceased and they are disqualified to continue as members of this House”. The two petitioners in the two petitions referred to above find their names among the names of persons who have been declared to be disqualified to continue as members of the House.

110. A notice of both these writ petitions was issued to the Speaker of the Tamil Nadu Legislative Assembly as well as the Secretary of the Tamil Nadu Legislative Assembly as also the Election Commission of India, New Delhi. The Election Commission of India was made a party because the Speaker had forwarded the ruling to the Election Commission of India for appropriate follow up action’. Neither the Speaker nor the Secretary of the Legislative Assembly have however appeared in these proceedings and indeed they have declined even to accept the notice of these petitions. We did not therefore have the opportunity of appreciating the point. of view of the Speaker with regard to what was referred to as his ‘residuary power’. A question i elating to the vacating of seat by an elected member consequent upon a ruling of the Speaker alone was considered by us to be of some importance and that is why we issued notice to the Speaker. The learned counsel appearing on behalf of the petitioners however referred us to Rules 121 and 122 of theules framed by the Tamil Nadu Legislative Assembly which provided only for the power of the Speaker to order a member to withdraw from the House in case his conduct is grossly disorderly or to name a member who disregards the authority of the chair or abuses the rules of the House by persistently and wilfully obstructing the business thereof. Rule 312 which has a marginal heading Residuary power of the Speaker, reads as follows : “all matters not specially provided for in, the Constitution or in these rules and all questions relating to the detailed working of these rules shall be regulated in such manner as the Speaker may from time to time direct.” Now it is difficult for us to see how when a specific provision made with regard to the power of the Speaker refers only to make an order of withdrawal or to name a member, a power to declare a person disqualified for certain reasons which is a much drastic power ‘can fall within the four corners of rule 312, The ruling of the Speaker refers merely to the fact that the members having violated the oath they have disqualified themselves to continue as members of the House. A question with regard to disqualification is a matter of a constitutional provision. The constitution makes express provisions as to the disqualifications which will result in the seat of an elected member becoming vacant. The express provision is to be found in Art. 190(3)(a) read with Art. 191(1) and the provisions of the Representation of the People Act. The rules which are made in the exercise of the power tinder Art. 208 of the Constitution of India must be read in the light of the substantive provision in Article 208 itself. Art. 208 provides :- “208(l) A house of the Legislature ‘ of a State may make rules for regulating, subject to the provisions of, this Constitution, its procedure and the conduct of its business.”

Any rules made in exercise of the power under Article 208 must therefore be construed as regulating the procedure of the House and the conduct of its business. Unseating a member on the ground that he has incurred a disqualification with necessary consequence of his seat becoming vacant is not a matter of procedure. It therefore appears to us that, rule 312 when it refers to residuary power of the Speaker that power must be exercised only with regard to the procedure in the House and the conduct of the business of the House.

111. Learned Advocate General was at pains to point out that the said ruling of the speaker is not now effective in as much as the decision has been taken by the House itself in the matter of expulsion. Therefore, according to the learned Advocate General it was not necessary to go into the merits of the challenge made to the ruling of the Speaker dated 24-11-086. An English translation of the proceedings of the Assembly relating to the resolution of expulsion has-been produced before us. The proceedings show that on 22 -12-1986 the Speaker observed “My ruling of the 24th May also be included in your resolution and got it passed by the House”. It may be pointed out that the original resolution of expulsion related only to three members and the seven members of the Assembly who were declared disqualified by the Speaker in the ruling dated 24-11–1986 were not the persons referred to in the original resolution of expulsion in the proceedings dated 22-12 -1986. It appears that the Leader of the House addressing the Speaker said : “Therefore, if you reconsider and leave the entire matter relating to all the ten persons to the decision of the House, it will lead to a healthy situation where the House itself can take a decision.” To this the speaker replied: “You can include them and get comprehensive resolution passed. Seven members were dealt with earlier and now these are three members. The resolution can cover all the ten member5”. It was on this statement that the Leader of the House stated “I am including these seven persons also in this resolution”. The Speaker clarified that it was not his intention to invoke Art. 191 or 192 of the Constitution. In the course of the debate, the Leader of the House observed as follows: – “Mr. Speaker, Sir, on my request that your ruling be reconsidered, you have observed that the matter can be taken up by the House itself. Consequently, the ruling given by the Hon. Speaker on that day gets rescinded. Therefore, what is now before the House relates to the ten persons and the portions of that ruling stands cancelled.” To this the Speaker replied: ‘ “You tell me that I can exercise my power. After the discussion, I took a decision. Now that you speak in a different-way, I have left it to the decision of the Ho use. If it is my , decision, it can -always be seen. I have left it to the decision of the House.” After some debate, the Leader of the House redirected; “Mr. Speaker, Sir, the, ruling has been left to the House itself for reconsideration. Accepting that, I move the following alternative resolution”. The proceedings therefore clearly indicate that the House has treated the ruling of the Speaker as having been rescinded and it therefore appears to us that the said ruling has cease to be effective, The fact is that seven persons who have been named by the Speaker as having lost their eligibility and had become disqualified to continue as members of the House were really expelled by the resolution of expulsion and it is therefore futile to contend that the ruling of the Speaker still is operative. It is unthinkable; that any person could get expelled twice over from the House for the same conduct and the fact that the House has passed the resolution of expulsion meant that the operative resolution is the resolution of the House. It is therefore not necessary to grant the declaration sought by the two petitioners that the said ruling of the Speaker is inoperative.

112. We would summarige our conclusions in the form of the following propositions

(1) The adoption of a written Constitution which is given by the people of India to themselves as long as the Constitution of India which represents the will of the people and is the supreme law of the land, is in force, it is an imperative obligation of every citizen of the Indian Republic, including those who want to voice their dissent in respect of any particular provision, to abide by the provisions of the Constitution and notwithstanding their dissent in respect of some provisions t hey are bound to respect it, apart from the express provision made in Art. 51-A of the Constitution. (2) The impugned resolution does not have the effect of expulsion of a member on the ground that he has incurred a disqualification for having committed a breach of oath, but it is founded on the conduct of the -elected members, which the Assembly considered to be derogatory to the dignity of the Constitution as well as the dignity of the Assembly and they were considered unfit to be members of the Assembly. This expulsion does not disqualify the expelled members from seeking re-election. (3) The conduct of any person including an elected representative of the people in burning the Constitution can hardly be treated as permissible method of expressing disapprobation of a constitutional provision assuming for a moment that some provision is not to the liking of some citizens. (4) Burning of the Constitution or any part of it is not in keeping with the norms and conduct expected of a member of the Legislative Assembly and is highly derogatory of the expected norms of conduct.

(5) Burning or defiling the Constitution or the National Flag or doing any act specified in S. 2 of the Prevention of Insults to the National Honour Act, 1971 does not fall within Explanation I of S. 2 and will amount o an offence-under the said Act and when an elected representative of the people who but for the provisions of the Constitution of India and the Representation of the People ‘Act would not have been able to claim the representative status, goes to the extent of burning or defiling or destroying the very Constitution or a part of the constitution, it would be for the House to decide how to deal with such a member. (6) An elected representative of tile people who makes on oath or affirmation Under Art. 188 is duty bound to bear true faith and allegiance to the Constitution of’ India and uphold the sovereignty and of India, and burning a part of the Constitution is in terms a breach of the oath. (7) The effect of tile Constitution (Forty-fourth Amendment) Act, 19718 amending Art. 194(3) is that whenever a question of privilege arises, tile relevant point of time for ascertaining whether a similar privilege was exercised by the House of its members and Committees has to be determined with reference to 20th June. 1979. (8) The power of expulsion apart from being a part of the power of the House of Commons to regulate its Own composition, was essentially a power which was in the nature of exercising a disciplinary control ever the membership of the House with a view to see that such of the members who are unfit in the opinion of the House to continue to be its members, could be expelled from membership. What is important is not that the power of expulsion so exercised was a part of the powers of the House of Commons to regulate its composition but that the power of expulsion was in fact exercised by the House of’ Commons also as a part , power to punish a member by expelling him.

(9) The House of Commons possessed and exercised the power and privilege to expel a member for an action which the House considered to be a misconduct even though the misconduct was commited outside the House. This power subsisted not only at the commencement of’ the constitution but in the absence of’ anything to show that this power was given up between the commencement of the Constitution and the commencement of the Constitution (Forty fourth Amendment) Act, such a power must be held to be subsisting, at the material time for the purposes of Article 194(3) of the Constitution of India. (10) By enacting, Art. 194(3) what was intended to be adopted was the powers and privileges of the house of commons as set out in May’s Parliamentary Practice which included the power of expulsion.

(11). The power of expulsion is not inconsistent with any of the other provisions of tile constitution of India. Such power cannot be negatived oil the ground that an elected member as entitled to continue as a member as a period of five years or that a particular constitution may go unrepresented because of the expulsion of the elected representative. (12) A conduct which is expressly made penal cannot be justified on the ground of a fundamental right under Art. 19(1)(a) and in any case burning the Constitution would not fall within ‘Freedom of speech and ex -pression’. (13) Even in the United States, the power of expulsion has been recognised in respect of the conduct of an elected member of a House inconsistent with the position and dignity and inconsistent with the trust and duty of a member and has been held to exist in a legislative body, whether expressly conferred or not. as being a necessary and incidental power to enable the House to perform its high functions and necessary to the safety of the State. (14) The resolution of expulsion is not open to challenge on the ground that it amounts to a Bill of Attainder or that it is a punishment for violation of oath.

(15) The Resolution of expulsion is not ‘law’ within the meaning of Art. 13 of the Constitution of India and is not open to challenge on the ground of violation of Art. 19(1)(c) or 29(1) of the Constitution of India,- apart from the fact that no right under Art. 19(1)(c) or Art. 29(1) of the petitioners is affected. (16) The resolution is not open to challenge oil the ground that the concerned members were not heard as such a challenge would be a challenge on the ground of failure to follow a procedure which would, amount to an. ‘irregularity’ and not an ‘illegality’ having regard to the provisions of Art. 212 of the Constitution of India. (17) The Resolution of expulsion is not open to challenge on the ground that a seat becoming vacant on account of expulsion of a member is not expressly contemplated by S. 150 of the Representation of the People Am because the opening part of S. 150 will also cover a case of seat becoming vacant as a result of expulsion. (18) Rules made under Art. 208 of the Constitution have to be construed as regulating the procedure of the House and tile conduct of its business, and R. 312 when it refers to the ‘residuary power’ of the Speaker, must be exercised only with regard to the procedure and conduct of the business of the House.

113. In the result, all the Writ Petitions are dismissed. There will be no order as to costs.

114. Before we part with the judgment we must express our appreciation of the able assistance which the learned Advocate General has graciously extended to us.

115. Petitions dismissed.

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Judgments of Supreme Court of India and High Courts

K. Anbazhagan And Ors. vs The Secretary, The Tamil Nadu … on 16 April, 1987

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