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Journalism of Courage
Robust judicial statesmanship. That is how I would characterise the judgment delivered by the Constitution Bench of the Supreme Court in the cash-for-questions cases. At one time when these cases were filed ominous consequences were foreshadowed, a possible ugly confrontation between the two great organs of state. But the clouds have blown away. As to which body or institution is more significant under the Constitution, Parliament and state legislatures on the one hand or the courts on the other, the answer now given in the judgment of January 10 is 8216;neither8217;. It is the Constitution alone that is supreme, but the final authority on the interpretation of any of its provisions is neither Parliament nor any state legislature. It is the Supreme Court of India.
The cash-for-questions scandal surfaced in December 2005, when a television channel presented thanks to the somewhat dubious advantages of modern technology! the result of a 8216;sting operation8217; in which there was offered both audio and visual evidence of particular members of Parliament accepting money for questions to be asked in the House during Question Hour. The Lok Sabha promptly constituted a committee to inquire into this and, on being satisfied that a 8216;scandal8217; had been correctly exposed by the media, it passed resolutions expelling these members. The errant members then filed writ petitions in the Supreme Court, and the question about the 8216;privileges8217; of Parliament was squarely raised.
Under this article, the powers, privileges and immunities of each House of Parliament are to be such as may from time to time be defined by Parliament by law and until so defined shall be those of the House of Commons and its members. It is well-settled in England that if in the opinion of the House of Commons a member has conducted himself in a manner which renders him unfit to serve as a member of Parliament, he may be expelled 8212; and there have been innumerable cases where members have been expelled from the House of Commons on various grounds such as of being rebels, or of having been guilty of forgery, or of perjury or of fraud and breaches of trust, misappropriation of public money, etc. But England has no written constitution. Under a written Constitution, in view of Article 102e, should there not be a specific law for this?
One of the justices held that absent a specific law providing for expulsion the resolutions were invalid and illegal; the other four justices the majority disagreed. A member who conducts himself or herself in a manner which renders the member unfit to serve is liable to be expelled: undoubtedly a 8216;privilege8217; of the Houses of Parliament; and if that power is properly exercised after giving due notice and following the principles of natural justice, the same cannot be faulted. In the result the resolutions of each of the Houses of Parliament were upheld; but the contention that the resolutions were not at all subject to scrutiny by the Supreme Court was expressly rejected.
By this decision we are perhaps coming one step nearer to parliamentary privileges being codified in this country as suggested by the Press Council and by our own Law Commission 8212; because the Supreme Court has now held whilst upholding the resolutions passed by both Houses of Parliament expelling the errant members that even absent an enacted law the courts retain ample power to scrutinise whether the action of anybody or any institution under the Constitution violates fundamental rights or the rules of natural justice.
It is now for the consideration of Parliament whether 8220;parliamentary privileges8221; should be left as an archaic inheritance from the British House of Commons, or whether in keeping with and in consonance with the dignity of our highest legislative body such privileges should now be codified. In either case, under the judgment, any action taken by the legislatures could never claim immunity from judicial scrutiny.
You cannot keep the courts out of overseeing acts of any authority howsoever high, simply because our Constitution mandates that 8220;howsoever high you be, the law is above you8221;.
The writer is an eminent jurist
