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Thursday, Nov 21, 2019

Expelled MPs, judiciary and Parliament

THE WORD ?tainted? has of late been at the nucleus of a legal controversy. The petitions filed in the court recently by the ?tainted? MPs, exposed and expelled by Parliament for the ?cash-for-query? scam, have stirred up a controversy again over the judiciary?s ?Lakshman Rekha?, and it is, again Lok Sabha Speaker Somnath Chatterjee who has taken the lead.

india Updated: Jan 23, 2006 00:33 IST
JB Sinha
JB Sinha
None
Hindustantimes
         

THE WORD ‘tainted’ has of late been at the nucleus of a legal controversy. The petitions filed in the court recently by the ‘tainted’ MPs, exposed and expelled by Parliament for the ‘cash-for-query’ scam, have stirred up a controversy again over the judiciary’s ‘Lakshman Rekha’, and it is, again Lok Sabha Speaker Somnath Chatterjee who has taken the lead.

His stand is that the motion for expulsion of  ‘tainted’ MPs was passed unanimously by the elected MPs in exercise of their Constitutional right to vote, and so the issue fell exclusively within the province of  ‘Parliament’s supremacy’ under the Constitution, and is, therefore, immune to judicial scrutiny or interference.

The case raises debatable questions. Article 122 of the Constitution stipulates that “the validity of the proceedings” in Parliament  “shall not be called in question in courts” on the ground of any “alleged irregularity of procedure”. Then, Article 105 provides that no member of Parliament shall be liable to any proceedings in any court in respect of “anything ‘said’ or any ‘vote’ given by him in Parliament or any committee thereof”.

In 1960, the apex court ruled that the immunity under Article 122 to Parliament’s proceedings from judicial interference is confined to only matters of  “irregularity of procedure”. That is, an allegation that Parliament’s proceedings, in question, suffered from a mere “irregularity of procedure” would not call for any judicial interference. But, at the same time, the apex court ruled, there would be no immunity to Parliament’s proceedings if they were held “without jurisdiction” (AIR 1960 SC 1186).

Now, against the backdrop of this, if what the “tainted” MPs have alleged before the court amounts to mere “irregularity of procedure” in Parliament’s proceedings, culminating into their expulsion, will it not suffice knocking out of their petition by the court?

Then, can the Parliament’s proceedings, leading to expulsion, be at all termed as being “without jurisdiction” under the Constitution, so as to confer jurisdiction on the court to ‘interfere’, irrespective of the bar under Article 122? 

In the Jharkhand Mukti Morcha  (JMM) bribery case, the Supreme Court held that the accused MPs could not be prosecuted on the bribery charge since they were protected by the immunity under Article 105, inasmuch as the alleged acceptance of bribe by them was “in respect of” the ‘vote’ against the no-confidence motion that had then been moved against the Narsimha Rao government (AIR 1998 SC 2120).

Then, what does one do to deal with such bribe-taking MPs?  The remedy was cleared open by none other than the apex court in the JMM bribery case itself. The bribe-takers, it held, could be proceeded against by Parliament itself for the ‘breach of privilege’.

The initiative came this time from Parliament by way of expulsion of ‘tainted’ MPs, something widely hailed as having set a healthy precedent for deterring those who misuse their privileges as Parliament members for illicit money. 
Looked from this angle, was the Parliament’s act of expelling the said MPs for acting in breach of their privilege not ‘outside’ but well ‘within its jurisdiction’, entitling it to immunity under Article 122 from court proceedings?

However, the expelled MPs have alleged that they were not given a ‘reasonable opportunity to explain’ their case. So, their expulsion, thus being in violation of the principles of natural justice, is liable to be struck down.

Punishment inflicted by any authority in violation of principles of natural justice renders it void. Besides, violation of principles of natural justice does not just amount to mere ‘procedural irregularity’. It is no procedure at all.      

What if the court finds basis in the expelled MPs’ plea that the procedure adopted during the inquiry against them was in violation of the principles of natural justice? In that case, will such procedure of inquiry adopted against them not amount to ‘no procedure” at all, rendering their expulsion wholly void? In that situation, will the case not then fall within the ambit of  ‘judicial review’, making absolutely inapplicable the immunity available to Parliament’s proceedings under Article 122 from court proceedings? The case being the first of its kind before the judiciary, the view which the apex court finally takes will naturally add yet another dimension to the development of Constitutional law in the country.