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Trinamool Congress MP Mahua Moitra was Friday expelled from the Lok Sabha after the House adopted the report of its Ethics Committee that held her guilty of indulging in “unethical conduct” and committing “serious misdemeanours”, and recommended her expulsion.
While her party has backed her and vowed to fight the issue politically, what is the legal road ahead for her?
She has the option of challenging the expulsion in the apex court, says former Lok Sabha secretary general P D T Achary.
As he explains, “Normally, House proceedings cannot be challenged on the ground of procedural irregularity. Article 122 of the Constitution is clear. It gives immunity to the proceedings from a challenge from court.”
Article 122 says “the validity of any proceedings in Parliament shall not be called (into) question on the ground of any alleged irregularity of procedure”. It also specifies that “no officer or Member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers”.
However, Achary points out, the Supreme Court said in the 2007 Raja Ram Pal case that “those restrictions are only for procedural irregularities. There may be other cases where judicial review may be necessary.”
Raja Ram Pal, a BSP leader at the time, was among the 12 MPs – 11 from the Lok Sabha and one from the Rajya Sabha – expelled for alleged involvement in the December 2005 cash-for-query scam. In January 2007, a Constitution Bench of the Supreme Court, by 4-1 majority, dismissed the petitions filed by the expelled MPs and upheld the expulsion, terming it a “self-protection” exercise by Parliament.
But, at the same time, the Court noted that “the proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny”.
The five-judge Constitution Bench, headed by then Chief Justice Y K Sabharwal, further said, “the Judicature is not prevented from scrutinizing the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens… the judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature”.
It also talked about Article 105(3) of the Constitution.
Article 105 of the Constitution deals with the powers and privileges of Parliament and of its Members and committees. Article 105(3) says “… the powers, privileges and immunities of each House of Parliament, and of the Members and the committees of each House, shall be such as may, from time to time, be defined by Parliament by law, and, until so defined, shall be those of that House and of its Members and committees immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978”.
The Court said “there is no basis to claim… absolute immunity to the Parliamentary proceedings in Article 105(3) of the Constitution. The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other Constitutional provisions, for example Article 122 or 212”.
The Court, however, made it clear that the “truth or correctness of the material (relied upon by the Legislature for taking action) will not be questioned by the court nor will it go into the adequacy of the material or substitute its opinion for that of the Legislature”.
Achary says that while a House has the power to expel a Member, the court can scrutinize whether a particular privilege existed at that time or not. “If it is a breach of privilege, then the House has the power to expel a Member. But the court can see whether that privilege existed at that time or not,” he says.
Achary adds that the functioning of the Privileges Committee and Ethics Committee are different from that of other parliamentary committees. “The Privileges Committee and Ethics Committee investigate or look into the misconduct of a Member, see whether that person has brought down the dignity of the House or behaved in a manner which is unbecoming of a Member and so on… Therefore, a proper procedure has to be laid down. You cannot follow the same procedures and methods followed by other committees which study subjects and Bills,” he says.
The former Lok Sabha secretary general adds: “Although there are no specific rules laid down for investigative work, it is understood that the committee will certainly allow the person to depose before the committee, and also call the other people concerned before the committee and hear them. In some cases, the accused MP has the right to cross-examine those people. After all, the basic purpose of investigation is to find the truth. How will you find the truth? You have to use all fair methods to find the truth. The question is whether all those have been followed or not.”
Moitra has claimed that she was denied natural justice as she was not allowed to cross-examine Darshan Hiranandani, who allegedly bribed her, and lawyer Jai Anant Dehadrai, who originally made the allegations against her.
Achary says that under Article 20 of the Constitution, a person cannot be punished unless there is an offence committed as per the law which existed at that time.
“So that there should be a law, it includes rules. If there is a rule which characterizes that particular act as an offence, and if a Member has violated that… only then can that person be punished under Article 20. That is a fundamental right. One of the main charges against Moitra is that she has shared the Parliament login-password with another person. The Lok Sabha rules are silent on that. It doesn’t say it is a violation of rule,” he says.
“If there is no rule or law on the subject, how can you proceed against the person for violating the law? That is a basic problem in this particular case,” according to Achary.
However, he adds, “Accepting money from a businessman (allegedly) for asking questions was a breach of privilege and should have been inquired into by the Privileges Committee.”
