Why Mahua Moitra’s expulsion is against basic legal principles and the Constitution

Obviously, even if someone were to speed-read it after downloading it, it cannot be done in less than 90 minutes, the time available before the resolution was moved. That is why one of the preliminary objections I had taken to the maintainability of the process was that more time should have been given to all the Members to study the report carefully and then present their views.

Coupled with this first issue are questions about the principles of natural justice, which cannot be given a pass under any circumstances. These are the founding and organising principles of every justice system in the world. What has been apparent from the newspaper reports of the proceedings is that the concerned MP was denied an opportunity to cross-examine the complainant. She was also not allowed to cross-examine the other witnesses who had ostensibly, by way of affidavits, deposed against her.

The purpose of natural justice does not get served until the procedure is kosher in its entirety, whereby people are given the right of substantive defence that is available to any accused person in even the most conservative legal systems in the world.

Then, there is a fundamental question about the very powers of the Ethics Committee. Rule 316 D says that the recommendations of the Ethics Committee would be laid on the floor of the House. Can recommendations be extrapolated to read that the Committee has the power to recommend punishment or the quantum of punishment which should be given in a particular case in the absence of a specific provision to that effect? This is for the simple reason that in criminal law, there is a fundamental distinction between conviction and sentencing.

While the Ethics Committee does have the power to hold a person guilty or innocent, the quantum of punishment has to be decided by the House collectively sitting as a quasi-judicial body or as a jury.

This then brings us to the third question: Can a whip be issued when the House is deliberating upon an impeachment motion or for that matter a report of the Privileges Committee, which has recommended action against a particular member or a report of the Committee of Ethics, which may involve harsh measures, including the expulsion of a member from a House? And the answer is absolutely not. Because when the House sets to deliberate, either on an impeachment motion or on a report of the Committee of Privileges or Ethics, it sits as a quasi-judicial body or as a jury, whereby every member must independently apply himself or herself to the contents of the report and the entire body of common law, which is available as a guide for necessary backup, and then decide upon the guilt or otherwise, of the person who has been arraigned in these proceedings.

However, if a whip is issued, under the Tenth Schedule, directing the Members to vote in a particular manner would vitiate the entire proceedings, because it would, in essence, be directing a judge or member of a jury to exercise that power in a particular manner.

This ignores basic jurisprudence and is impermissible under common law principles of natural justice.

Then, of course, is the connected question of Article 105 of the Constitution of India, which deals with the powers and immunities available. Article 105 (2) says: “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, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.”

The Consitution, then, is clear that the conduct of an MP cannot even be called into question in a court of law for anything which has been said or done by him or her during the proceedings of a House. Therefore, when the Constitution does not allow even the courts to call in question, the conduct of a member, thereby providing absolute immunity and absolute insulation, can the House, which is a creature of the Constitution, go beyond the remit of Article 105, especially Article 105 (2)? This cannot be overlooked by any committee, which is sitting in a quasi-judicial capacity or the House when it sits as a jury or in a quasi-judicial capacity to deliberate upon the reports of the Committee.

The final point is about the interpretation of Article 105 (2) in the case of P V Narasimha Rao v State (1998), which still holds the field. The judgment is under consideration by the apex court as we speak. However, the law as it stands today is that even if, hypothetically, the conduct of a Member within the House is vitiated by any illegal gratification, his or her conduct cannot be called into question in a court of law. And, in this particular instance, the question remains: Was the guilt proven beyond reasonable doubt? This is the jurisprudential principle — the guilt of an accused has to be proven beyond reasonable doubt before he or she is sentenced. So, without going into the merits of the report of the Ethics Committee, one way or the other, till the time the fundamental and substantive questions of law, which form the underlying basis of natural justice are not addressed holistically and completely, any and every proceeding will be open to a legal challenge. This happened in Raja Ram Pal vs Speaker, Lok Sabha & Ors’s case when the Lok Sabha and Rajya Sabha had decided to expel some of their members in what is called the “cash for questions” case.

The writer is a Congress leader, lawyer, MP, and former I&B Minister. Views are personal.