Disciplining MPs: Precedents & provisions

Are members of Parliament free to disrupt the proceedings without any consequences Now that a trend of a handful of members holding up the proceedings through shouting of slogans and occupying the Well of the House is developing — to be passed on to succeeding Parliaments as legacy — a remedy has to be found. The alternative is to resign to the fate that functioning of Parliament is at the mercy of a few.

Article 102 of the Constitution provides that a person once elected as a member of Parliament has no guarantee of continuing in that office for the full period of five or six years, as the case may be. The membership is liable to be terminated on the grounds specified:

If he holds any office of profit under the Government of India or the government of any state, other than an office declared by Parliament by law not to disqualify its holder;

If he is of unsound mind and stands so declared by a competent court;

If he is an un-discharged insolvent;

If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign state, or is under any acknowledgement of allegiance or adherence to a foreign state;

If he is so disqualified by or under any law made by Parliament — including the anti defection law.

These, however, are not exhaustive.

Legislatures, both at the state levels and the Centre, have ample powers under the Constitution to devise methods to regulate their own proceedings. The source of such unspecified powers is Article 105(3) of the Constitution which, as it originally stood (Article 194 is the corresponding provision relating to state Assemblies) read: “105(3). In other respects, 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 the House of Commons of Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution.”

This article was amended by the Constitution 44th Amendment Act to freeze the position as it stood before the commencement of the 44th Amendment Act, 1978. The powers and privileges of the House of Commons are not codified; they are to be gathered from a long line of precedents. Whenever the occasion arose, the Supreme Court had to refer to them.

One may recall the case of MPs who received “cash for questions” in the Houses — a private TV channel exposed 10 MPs of the Lok Sabha and one MP of Rajya Sabha accepting money as consideration for raising certain questions in the House. In addition, one member was fond to be guilty of improper conduct of misusing the Members of Parliament Local Area Development Scheme (MPLAD). There were no precedents of punishing such misdemeanours through the process of ordinary criminal law because of the privilege enjoyed by the MPs — whatever they did within the House was beyond the jurisdiction of ordinary courts.

However, the Parliament found a way — it discovered that the House of Commons had the power to expel an MP. After taking formal steps like issuing the necessary notices, committees were formed to inquire into the truth of the matter. The committees found the MPs guilty. The Houses thereafter, by a simple majority, expelled the 10 members from Lok Sabha and one from Rajya Sabha.

All of the expelled MPs, including Raja Ram Pal, approached the Supreme Court contending, among other things, that the legislatures in India had no power to expel their members in the absence of any law made by the Parliament. Admittedly, there was no such law.

It was also contended that expulsion of the members through a motion adopted by a simple majority was a dangerous precedent, which would give dictatorial powers to the ruling majority.

The Supreme Court, after examining the powers of the House of Commons, held that Indian legislatures had the power to expel members found “unfit” — on grounds other than those mentioned in Article 102 (Raja Ram Pal vs Speaker, Lok Sabha & Ors, 2007).

Raising questions in Parliament in consideration of payment of money was not one of the items prohibited by any law, but undoubtedly it was a shameful act. Hence, the House found the members unfit to occupy their positions.

What about the conduct of deliberately disrupting the proceedings of the House as a part of a plan and disobeying the repeated requests or instructions from the chair As the deputy chairman of the Rajya Sabha reportedly remarked, “Howling is no part of parliamentary practice.”

In Raja Ram Pal case, the Supreme Court quoted and approved the following dictum of Lord Coleridge chief justice in the celebrated case of Bradlaugh vs Gossett (1884), “The jurisdiction of the House over their own members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, ‘They would sink in to utter contempt and inefficiency without it.’”

Politically, the act of expelling members may amount to setting another bad precedent, like protesting in the Well of the House, which according to today’s Opposition party was pioneered by the ruling party when they were in Opposition. However, if the present trend is allowed to continue, legislatures face the danger of “sinking in to contempt and inefficiency”.

Expulsion or suspension of members would naturally result in causing many vacancies in the House, but passing laws while vacancies exist is permissible as has been conclusively held in the case of Indira Gandhi’s election case (1976), where laws passed, including constitutional amendments, after putting a large number of members of the Opposition in jails, were held as valid.

Aggrieved MPs can surely knock at the doors of the Supreme Court following Raja Ram Pal case, but I can foresee no danger of them getting any relief because neither law nor public opinion supports subversion of democracy for whatever end.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at knbhat1@gmail.com