Questions of privilege

The abuse of parliamentary privileges to silence criticism has come full circle, with the weapon now being targeted against legislators themselves...

The abuse of parliamentary privileges to silence criticism has come full circle, with the weapon now being targeted against legislators themselves, as Amarinder Singh8217;s troubles in Punjab show. This in spite of the fact that Parliament has never formulated guidelines for the exercise of this draconian power against its own members 8212; just as it has not codified its own privileges in six decades. Legislative Houses in India are never known to have functioned as objective judicial chambers. When there was a suggestion to allow the Committee of Privileges to assist the speakers and chairmen in deciding cases under the anti-defection law, the then law minister, Asoke Sen, rejected the argument saying that the committees would have only functioned on party lines and the decision of the speaker or the chairman would have been a coloured one. The amendment to the anti-defection law was thus rejected. If the committees work on party lines, the House is no exception.

The courts, admittedly, have not objected; just as the Punjab assembly8217;s actions have been partially upheld by the high court. In December 2005, 10 members of Lok Sabha and one member of Rajya Sabha were expelled for the 8220;cash-for-query8221; scandal. The Supreme Court upheld the power of Parliament to expel members as part of its 8220;self-disciplining8221; powers under Article 105. Not, of course, that Parliament and state legislatures have ever conceded to the courts the right to adjudicate upon their powers, privileges and immunities.

That was not the first time Lok Sabha expelled its members. As early as September 1951, H.G. Mudgal was expelled from Lok Sabha for a kind of cash for query allegation. And, of course,

Indira Gandhi was expelled in December 1978.

As for state legislatures, the Maharashtra assembly expelled a member in 1964 and the Madhya Pradesh assembly expelled two in 1966 8212; the latter expulsion was challenged, and upheld by the MP high court. The Haryana assembly, however, tried to do so in 1975, only to have the high court declare the expulsion 8220;unconstitutional, illegal and inoperative8221;.

Close on the heels of the expulsion of Indira Gandhi, the Election Commission called a public hearing on the power of Parliament to expel members. It concluded that, besides the grounds specified under Articles 101 and 102 for declaring seats vacant in legislatures, the expulsions carried out in exercise of the privileged power of legislatures under article 105 can also create vacancies. That logic was faulty: it ignored Article 102 1 e, which does not invoke Article 105, and yet is used as a reason to create a vacancy. The EC even confused 8220;casual8221; vacancies and 8220;permanent8221; vacancies caused by such things as death.

Basically, the EC8217;s legal argument is without foundation. Articles 101 and 102 for the Union Parliament and Articles 190 and 191 for the state legislatures are therefore exhaustive as relating to the arising of vacancies in the legislatures. Articles 105 and 194 cannot be construed to supplement these provisions by adding any other contingency in which seats can become vacant or declared vacant.

If the legislatures are construed to have power to declare seats vacant after expelling members, then how will they revoke expulsions, as Lok Sabha did with Indira Gandhi8217;s expulsion? The purpose of parliamentary privileges is to punish the member and not to create a vacancy, which can be done only by the operation of Articles 101, 102, 190 and 191. While the British House of Commons has the powers to compose itself, the Indian legislatures lack that power. Only a House that can order elections can create a vacancy. Thus, the Supreme Court8217;s judgement that the Houses have the power to expel members under Article 105 needs complete review and rejection by a constitutional amendment, especially when the overall standards of objectivity of legislative Houses have come into question. The day may not be far when legislatures, to help governments survive, resort to mass political 8220;cleansing8221; by exercising this draconian power.

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If members are to be disciplined, there must be special fast-track tribunals to try civil and criminal offences, which should never be tried by committees or by a whole House. Conviction on strict judicial proof by the best judicial institution within the shortest possible time is the way to deal with serious misdemeanours. Corruption charges are tried by courts and commissions of inquiry and not by legislative committees as happened in the case of Amarinder Singh.

Only breaches of privilege not warranting punishments, such as suspension and expulsion, should be tried by legislatures and their committees. Expulsion, which leads to disqualification and consequent election, must remain a power unavailable to the Indian legislatures 8212; and if it is to be made available, then that power should be subject to express judicial review just as ordinary elections of members are currently justiciable.

The writer is the secretary of the Goa legislative assembly

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