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THE division of powers between Parliament and the Supreme Court is once again being tested. An all-party meeting convened by Lok Sabha Speaker Somnath Chatterjee on January 20 resolved that he should neither accept the Supreme Court's notice nor appear before it on the issue of expulsion of Members of Parliament in the wake of the cash-for-questions scam.
Raja Ram Pal of the Bahujan Samaj Party (BSP), one of the 10 expelled members of the Lok Sabha, filed a writ petition in the Supreme Court challenging his expulsion. He argued that the security of tenure of House membership could be taken away only by the procedure proposed or the power conferred by the Constitution.
Admitting the petition, the Supreme Court Bench comprising Chief Justice Y.K. Sabbharwal and Justices C.K. Thakker and R.V. Raveendran on January 16 referred the matter to a Constitution Bench to examine the question whether Parliament had the power to expel its members under Article 105. The court issued notices to the Speaker, the Union government and the Election Commission (E.C.). It asked the Attorney-General to assist the court in hearing the matter. The Bench, however, refused to restrain the E.C. from holding byelections to fill the vacancies created by the expulsions. It also made it clear that it would not go into the merits of the allegations against the expelled MPs.
The Speaker, in accordance with the conventions and precedents, refused to submit himself to the jurisdiction of the Supreme Court in hearing this matter.
THE question whether the expulsion issue is justiciable is debatable. The Indian Parliament's power to expel its members is extraordinary. The resolutions passed by the Lok Sabha and the Rajya Sabha, while expelling the 11 MPs on December 23, did not invoke any specific constitutional provision or statute to explain the exercise of this power.
Article 105(3) deals with the powers, privileges and immunities of each House of Parliament and of the members and the committees of each House and says that until defined by law they shall be the same as those of the House of Commons of the United Kingdom and of its members and committees at the commencement of the Constitution.
In the House of Commons the power to expel its members has been used only very rarely - three times in the past century. The number of occasions when the House of Commons exercised this power in the 17th and 18th centuries was higher than in the subsequent period. The House of Commons had given members found to be corrupt a lesser punishment, such as an admonition. Generally, the House waited until a member suspected of misbehaviour had been legally held guilty or had absconded, thereby indicating guilt; this delay allowed the guilty MPs to resign.
On May 6, 1975, a Select Committee inquiring into the case of the Member John Stonehouse said a motion to expel would be justified but should be delayed in order to give him the option of attending the House proceedings. A debate on a motion to expel was scheduled for June 12, 1975, but was withdrawn so that it did not prejudice his trial. Meanwhile, he resigned on conviction for theft, forgery and fraud.
On July 10, 1994, The Sunday Times published a story claiming that Members of Parliament David Tredinnick and Graham Riddick had each accepted £1,000 for tabling a parliamentary question and a third Member, Bill Walker, agreed to table a question in return for £1,000 before telephoning back and requesting the cheque be made out to his favourite charity. The Sunday Times reporters posed themselves as businessmen offering money for parliamentary activity and recorded their conversations with the MPs on a tape.
The Speaker of the House of Commons announced a formal inquiry by a committee of MPs. The committee decided that "the offer of payment to table a question ... is not of the same character as the offer of payment for a Member's vote, and does not seem... to fall into the definition of bribery... Nevertheless, such an offer if made and accepted... is certainly dishonourable and damaging to the standing and reputation of Parliament."
Riddick concluded, before it was exposed, that the transaction was not a proper one and returned the cheque at the earliest opportunity. He also acknowledged his fault and apologised to the House. The committee recommended that he be suspended from Parliament for two weeks without salary.
Tredinnick was reprimanded and suspended without pay for 20 sitting days. In the case of Bill Walker, the committee concluded that his conduct diminished the standing of Parliament and if it became prevalent could lead members of the public to think that such a contribution would give them an advantage in dealing with their MP. However, it did not recommend any action against him.
Despite these recent examples in the House of Commons, which did not result in expulsions, it is assumed in India that Parliament has the inherent power to expel its Members for proved misconduct. On December 19, 1978, the Lok Sabha adopted a motion resolving that former Prime Minister Indira Gandhi be committed to jail until the prorogation of the House and be expelled from its membership for breach of privilege and contempt of the House committed by her.
Equally controversial was the expulsion from the Rajya Sabha of Subramanian Swamy during the Emergency in November 1976 for allegedly carrying out an anti-India campaign abroad and for "forging" his own signatures in the House records to mark his presence. Swamy had refused to appear before the Privileges Committee, which found him guilty, and its report was the basis of the expulsion by the House.
On May 7, 1981, the Seventh Lok Sabha, after the return of Indira Gandhi to power at the Centre, rescinded her expulsion by the preceding Lok Sabha. The House resolved that the 1978 expulsion would not constitute a precedent in the law of parliamentary privileges and that the findings of the Committee and the decision of the House were inconsistent with and violative of the well-established principles of the law of parliamentary privilege and the basic safeguards assured to all and enshrined in the Constitution.
Subsequently, the E.C. ruled that the expression "in other respects" used in the beginning of Article 105(3) clearly implied the wide scope of the field of its operation and should, therefore, include the power to expel Members. The E.C. held that the grounds listed in Articles 101 (vacation of seats) and 102 (disqualification of membership) are not exhaustive and Article 105 should be regarded as supplemental to them in the matter of a further contingency in which a seat might become vacant by reason of expulsion.
The Punjab and Haryana High Court declared in the Hardwari Lal case (1977) that the Houses in India (including Parliament and State Legislatures) have no power of expulsion. However, in 1966, the Madhya Pradesh High Court ruled that they had such power. In view of these conflicting High Court rulings, the outcome of the case in the Supreme Court is expected to bring clarity to the law on expulsions.
RAJA RAM PAL'S plea is that the grounds of disqualification provided under Article 102 are exhaustive in nature and the same are not just illustrative. Therefore, Parliament's exercise of the power to expel its members has no constitutional sanction, argued the petitioner. Further, he contended that the Lok Sabha could not ignore the mechanism provided under Article 103 of the Constitution to expel a member. Under this provision, the question of disqualification has to be referred to the President and his decision shall be final. It also makes it mandatory for the President to obtain the opinion of the E.C. and decide according to it.
In 1951, H.G. Mudgal, a Member of the Provisional Parliament, quit before his expulsion after being indicted for accepting remuneration to raise questions. In his case, the Committee of the House specially constituted to inquire into the allegations gave all opportunities to the accused. Mudgal was allowed the services of a counsel to cross-examine the witnesses and to present his own witnesses. Again, unlike in the present case, Mudgal got an opportunity to defend himself on the floor of the House twice - before the committee was constituted and after the submission of the committee's findings to Parliament.
Pawan Kumar Bansal, the Chairman of the five-member Committee which inquired into the conduct of the 10 expelled Lok Sabha MPs, told Frontline that the procedure followed in the Mudgal case was not appropriate in the present one. Allowing the accused to engage a lawyer and cross-examine the witnesses would have unnecessarily delayed the process. The Committee had been directed by the Speaker to complete its work within 10 days.
The Committee did not find it necessary to examine the middlemen who were the conduits between the MPs and the journalists posing as businessmen seeking to bribe them. It was satisfied with the genuineness of the tapes submitted by the television channel and Cobrapost.com, which conducted the sting operation, to determine whether the accused were guilty. The accused were given the opportunity to view the unedited tapes in front of the Committee members, though their requests for more time and a copy of the unedited tapes were denied. The Committee found the written and oral explanations of their conduct unconvincing. It accepted the claim that it was not a case of entrapment because the MPs knew that they were to be given money to raise questions in the House. Inexplicably, however, the expelled MPs did not get an opportunity to defend themselves in the House during the proceedings to expel them, lending credence to the criticism that due process was not followed while expelling them.
This is in contrast to the procedure followed in the United States to expel a Member of Congress. In 2002, the United States House of Representatives expelled James Trafficant for ethical violations after he was duly convicted by a court for bribery, racketeering and tax evasion. In the Indian Parliament, a simple majority is considered enough to adopt a resolution expelling a member; in the U.S. House of Representatives, it should be backed by two-thirds strength of the House. In India, it is not necessary that the member-to-be-expelled must have been convicted for an offence by a court of law. In the U.S., on the other hand, prior conviction for specific offences is imperative.
If Parliament thinks the expelled members are unfit to hold the membership of the House, it would make a mockery of the exercise of this power if the expelled members are able to re-enter the House through a byelection, as there is no bar on their seeking re-election to the House. Therefore, the question whether Parliament's manner of rendering justice through expulsion can be a better substitute for proper investigation and trial of the accused MPs needs to be addressed. If expulsion was indeed justified, why not amend the Constitution and the Rules of the House, to provide specifically for disqualification of MPs whose misconduct has been established by the peers, asks Harish Pandey, advocate for the expelled member of the Rajya Sabha, Chhatrapal Singh Lodha, who has filed a writ petition in the Delhi High Court challenging his expulsion.
While the Bansal report has led to a raging controversy over its merits, Bansal himself is clear that his report should not be construed to encourage further sting operations against Members of Parliament if they are not done clearly in the public interest. "We will not approve it, if more sting journalists with profit motive seek to expose the misconduct of MPs," said Bansal. Apparently, he was referring to allegations that Cobrapost.com carried out the sting operation with a profit motive and was rewarded by the television channel Aaj Tak.
Bansal has resigned as the Chairman of the ad hoc Committee inquiring into the allegations of misconduct against some Lok Sabha members, shown by a television channel as having received bribes to award contracts under the MPs Local Areas Development Scheme. He quit following revelations that he had favoured the Chandigarh Golf Club with the funds he was entitled to allot at his discretion under the MPLADS. The report of this Committee, under a new Chairman, is unlikely to be any different from the Bansal report, as Parliament is swayed by the huge public opinion in favour of its decision to expel the MPs exposed by the sting operations.
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