Sashank Saravanan and Kanan Shivhare
Introduction
In the hallowed halls of the Indian Parliament, where debates shape the destiny of a nation, a recent controversy has ignited a fervent discourse on the powers vested in the legislative body to regulate the conduct of its members. The expulsion of Trinamool Congress MP Mahua Moitra from the Lok Sabha has thrust the issue of parliamentary powers into the limelight, raising fundamental questions about the process, jurisdiction, and mandates involved in such consequential decisions.
At the heart of the matter lies the authority of the House to mete out punishments for misconduct by its members, both within the parliamentary chambers and beyond. The arsenal of punitive measures at the disposal of the House is vast — from admonition and reprimand to suspension, imprisonment, and, most significantly, expulsion. The gravity of expelling a representative of the people is underscored by its rarity, reserved historically for instances of severe breaches of privilege or contempt of the house.
The controversy surrounding Mahua Moitra’s expulsion unfolds against a backdrop of procedural intricacies, casting a spotlight on the jurisdictional nuances that dictate the course of such inquiries. The Ethics Committee of Lok Sabha, chaired by BJP MP Vinod Kumar Sonkar, played a pivotal role in recommending Moitra’s expulsion, alleging her acceptance of cash and gifts as bribes for parliamentary activities as an act of contempt. The saga takes a twist as supplementary charges, such as the alleged sharing of an ID password, bring the case under the purview of the Ethics Committee due to the misconduct rather than the more conventional Privileges Committee that deals with breach of privilege. This departure from the established norm sparks debates on the appropriateness of the committee’s involvement and, more broadly, on the efficacy of the parliamentary machinery in handling such delicate matters.
As the expulsion saga unfolds, the article delves into the intricacies of the parliamentary process, shedding light on the controversy’s political undercurrents and the clash between the powers of investigation and the rights of the accused. As we dissect the controversies and explore the legal landscape, we aim to provide a comprehensive understanding of the constitutional foundations that underpin the authority of Parliament in taking the extreme step of removing an elected representative.
Scope and Limitations of Contempt of Powers with Reference to the Historical Influence of UK
The authority of the Indian Parliament to punish for contempt, as outlined in Article 105 of the Constitution, is not explicitly granted by fundamental law but is considered inherent and ancillary. Unlike the House of Commons in England, it’s crucial to note that the Indian Parliament possesses a certain separation of powers between its legislature and judiciary. Historically, under the Government of India Act, 1935, and the Government of India Act, 1919, Indian legislatures did not enjoy the same status as superior courts of record, setting them apart from their English counterparts. This historical difference is essential in understanding that the Indian Parliament cannot claim similar privileges, and there is no legal presumption under Article 105 to suggest otherwise. The exclusion of penal jurisdiction in the legislative powers granted by these Acts further underlines that Indian legislatures lack the general power to punish for contempt. The application of the Supreme Court’s advisory opinion in Power, Privileges and Immunities of State Legislatures, in Keshav Singh vs Speaker, Legislative Assembly, emphasised that neither Parliament nor State legislatures in India possess the status of a court of record, thereby precluding the privilege to commit a person for contempt through a general warrant.
The absence of the court of record status in Indian legislatures implies that the power to punish for contempt cannot be asserted comprehensively by them. While acknowledging the need for the legislature to have a certain degree of contempt power to maintain discipline, safeguard authority, and protect privilege, the scope of this power is limited. Expulsion of members, seen as a severe punitive measure, has penal consequences due to the member losing parliamentary immunity from criminal conviction after expulsion under Article 105(4). This underscores the necessity for matters of expulsion to be addressed by a forum exercising judicial functions. Additionally, it is crucial to acknowledge the application and treatment of freedom of speech as a fundamental right in Moitra’s case as an extension of her parliamentary privileges as an MP. The Supreme Court, in the Tej Kiran v. Sanjiva Reddy case, introduced the concept of freedom of speech in relation to parliamentary privileges. The court rejected an appeal, asserting that according to Article 105(1), “Once it was established that the Parliament was in session and its proceedings were underway, any statements made during the course of that business were exempt from legal proceedings in any court.”
Drawing a balance between both the rights of the parliamentary members and accountability towards their actions forms a delicate balance that must be upheld.
Judicial Scrutiny and Constitutional Harmony
In a historical context, the Indian Supreme Court delved into the expulsion of members entangled in the cash-for-query scandal through the lens of Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha. While this decision mirrored practices in the United Kingdom, it triggered substantial inquiries within the Indian parliamentary landscape, particularly scrutinising the limited power vested in the Indian Parliament to punish for contempt.
As the court navigated this terrain, contradictions surfaced, notably in the claim that expulsion served as a tool for enforcing privilege without fundamentally altering the composition of the house. It was contended that Articles 101 and 102 of the Constitution operate independently of Article 105(3) and do not constrain the scope of Article 105(3). However, this assertion faces scrutiny as constitutional provisions demand a harmonious reading, assigning equal weightage to each component. In constitutional interpretation, the autonomy of one Article from another is untenable, emphasising the need for a cohesive understanding of the constitutional framework. The idea that certain Articles operate independently of others is inconsistent with the principle of constitutional harmony, where each provision contributes to a unified legal structure.
Justice Raveendran presented a dissenting viewpoint in Raja Ram Pal’s case, contending that the exhaustive enumeration of disqualifications within the Indian constitutional framework left no room for an inherent power of ‘expulsion.’ This dissent drew parallels with historical practices in England, where expulsion was employed in cases lacking statutory disqualifications. However, with explicit constitutional provisions for disqualification and judicial review, the necessity for an inherent power of ‘expulsion’ diminished.
In the realm of expulsion, two notable cases, Yeshwant Rao v. Madhya Pradesh Legislative Assembly and K. Anbazhagan v. Tamil Nadu Legislative Assembly, surfaced, each offering distinct perspectives on the power of expulsion. The former endorsed expulsion as an intrinsic aspect of the legislature’s proper functioning and self-security, while the latter, aligning with the Madhya Pradesh High Court, viewed expulsion as an integral component of the power to regulate the constitution. It is crucial to note that, in both cases, the courts refrained from delving into the extent of the legislature’s power to punish for contempt.
A pivotal moment in this narrative occurred in Hardwari Lal’s case, where a majority ruled that the power of expulsion was beyond the reach of the legislature. The majority argued that the power of the House of Commons to expel, rooted in its basic privilege to regulate its constitution, found no parallel in the Indian constitutional framework. This decision unequivocally declared expulsion illegal and beyond the purview of the legislature.
Further differentiating scenarios emerged concerning expulsion based on a member’s mental fitness, where punitive characterisation might not be fitting. However, when instances involved criminal conduct, such as accepting bribes, the imperative for judicial involvement became paramount. The Report of the Royal Commission on Standards in Public Life underscored that dealing with bribery cases involving Members of Parliament required specialised expertise beyond the investigative capacities of the House.
Concluding Thoughts and Forward Path
In light of historical precedents concerning parliamentary powers, the expulsion of Mahua Moitra appears to extend beyond the purview of the Parliament’s authority as delineated in Article 105. The act of expulsion, inherently associated with penal consequences, ostensibly falls within the domain of the judiciary. Moitra’s failure to present her perspective prior to the passing of the motion runs counter to the constitutional framework. The motion for appeal itself, initiated by a parliament member citing “unethical conduct,” echoes allegations akin to those in the case of Amarinder Singh v. Special Committee. This precedent established that terms such as “unfitness of a member,” “conduct unbecoming of a member of the house,” and “lowering the dignity of the house” constitute abstract and open-ended grounds, rendering them invalid for expulsion by the legislature.
Under these circumstances, Madhu Moitra’s case falls within the domain of the ethics committee, tasked with providing its analysis. However, it is noteworthy that the committee lacks the authority to recommend the expulsion of a parliamentary member.
While acknowledging the need for the legislature to have a certain degree of contempt power to maintain discipline, safeguard authority, and protect privilege, the scope of this power is limited. A nexus cannot be drawn to the punitive powers of the House of Commons and the Indian Parliament when no such provisions towards punitive powers of the parliament exist within the constitution. The potential misuse of such punitive measures in political contexts poses the risk of establishing a dangerous precedent, widening the scope of parliamentary privileges and allowing for “vendetta politics”.
The authors are third year students at Gujarat National Law University.
NUALS Law Journal 