Judgment: [With Transferred Case Nos. 82 to 90 of 2006 and Writ Petition (C) No. 129 of 2006]

Y.K. Sabharwal, CJI.
Factual Backgrounds
The interpretation of Article 105 of Constitution of India is in issue in these matters. The question is whether in exercise of the powers, privileges and immunities as contained  in Article 105, are the Houses of Parliament competent to expel their respective Members from membership of the House. If such a power exists, is it subject to judicial review and if so, the scope of such judicial review.

The unfortunate background in which the aforesaid questions have arisen is the allegation that the Members of Parliament (MPs) indulged in unethical and corrupt practices of taking monetary consideration in relation to their functions as MPs.

A private channel had telecast a programme on 12th December, 2005 depicting 10 MPs of House of People (Lok Sabha) and one of Council of States (Rajya Sabha) accepting money, directly or through middleman, as consideration for raising certain questions in the House or for otherwise espousing certain causes for those offering the lucre. This led to extensive publicity in media. The Presiding Officers of each Houses of Parliament instituted inquiries through separate Committees. Another private channel telecast a programme on 19th December, 2005 alleging improper conduct of another MP of Rajya Sabha in relation to the implementation of Member of Parliament Local Area Development Scheme ('MPLAD' Scheme for short). This incident was also referred to a Committee.

The Report of the inquiry concluded, inter alia, that the evidence against the 10 members of Lok Sabha was incriminate; the plea that the video footages were doctored/morphed/edited had no merit; there was no valid reason for the Committee to doubt the authenticity of the video footage; the allegations of acceptance of money by the said 10 members had been established which acts of acceptance of money had a direct connection with the work of Parliament and constituted such conduct on their part as was unbecoming of Members of Parliament and also unethical and calling for strict action. The majority report also recorded the view that in case of misconduct, or contempt, committed by its members, the House can impose punishment in the nature of admonition, reprimand, withdrawal from the House, suspension from service of House, imprisonment, and expulsion from the House. The majority Report recorded its deep distress over acceptance of money by MPs for raising questions in the House and found that it had eroded the credibility of Parliament as an institution and a pillar of
democracy in this country and recommended expulsion of the 10 members from the membership of Lok Sabha finding that
their continuance as Members of the House would be untenable. One member, however, recorded a note of dissent
for the reasons that in his understanding of the procedure as established by law, no member could be expelled except for
breach of privileges of the House and that the matter must, therefore, be dealt with according to the rules of the Privileges
Committee.

On the Report of the Inquiry Committee being laid on the table of the House, a Motion was adopted by Lok Sabha resolving to expel the 10 members from the membership of Lok Sabha, accepting the finding as contained in the Report of the Committee that the conduct of the members was unethical and unbecoming of the Members of Parliament and their continuance as MPs is untenable. On the same day i.e. 23rd December, 2005, the Lok Sabha Secretariat issued the impugned notification notifying the expulsion of those MPs with effect from same date. In the Writ Petitions/Transfer Cases, the expelled MPs have challenged the constitutional validity of their respective expulsions.

Almost a similar process was undertaken by the Rajya Sabha in respect of its Member. The matter was referred to
the Ethics Committee of the Rajya Sabha. As per the majority Report, the Committee found that the Member had accepted
money for tabling question in Rajya Sabha and the plea taken by him in defence was untenable in the light of evidence before it. However, one Member while agreeing with other Members of the Committee as to the factual finding expressed opinion that in view, amongst others, of the divergent opinion regarding the law on the subject in judgments of different High Courts, to which confusion was added by the rules of procedure inasmuch as Rule 297(d) would not provide for expulsion as one of the punishments, there was a need for clarity to rule out any margin of error and thus there was a necessity to seek opinion of this Court under Article 143(1) of the Constitution.

The Report of the Ethics Committee was adopted by Rajya Sabha concurring with the recommendation of expulsion and on the same date i.e. 23rd December, 2005, a notification notifying expulsion of the Member from membership of Rajya Sabha with immediate effect was issued. The case of petitioner in Writ Petition (C) No.129/2006 arises out of different, though similar set of circumstances. In this case, the telecast of the programme alleged improper conduct in implementation of MPLAD Scheme. The programme was telecast on 19th December, 2005. The Report of the Ethics Committee found that after viewing the unedited footage, the Committee was of the view that it was an open and shut case as Member had unabashedly and in a professional manner demanded commission for helping the so-called NGO to set up projects in his home state/district and to recommend works under MPLAD Scheme. The Committee came to the conclusion that the conduct of the Member amounts to violations of Code of Conduct for Members of Rajya Sabha and it is immaterial whether any money changed hands or not or whether any commission was actually paid or not. It found that the Member has not only committed gross misdemeanor but by his conduct he also impaired the dignity of the House and its Member and acted in a manner which is inconsistent with the standards that the House is entitled to expect of its Members. Since the conduct of the Member has brought the House and its Member into disrepute, the Committee expressed the view that the Member has forfeited his right to continue as Member and, therefore, recommended his expulsion from the membership of the House. The Rajya Sabha accepted the recommendations of the Ethics Committee and Motion agreeing with the recommendation was adopted on 21st March, 2006 thereby expelling the Member from the membership bringing to an end his membership. On the same date notification was issued by Rajya Sabha Secretariat. The two Members of Rajya Sabha have also challenged the constitutional validity of their expulsions.

Article 105 reads as under :
"105. Powers, privileges, etc. of the Houses of Parliament and of the members and committees thereof.--
(1) Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

(2) 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, voles or proceedings.

(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 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.

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament."

There is identical provision as contained in Article 194 relating to powers, privileges and immunities of State legislature. Article 194 reads as under :-
"194.Powers, privileges, etc., of the House of Legislatures and of the members and committees thereof.--(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every Slate.
(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature 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 26 of the Constitution (forty-fourth Amendment) Act, 1978. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature."

Article 105(3) underwent a change in terms of Section 15 of the Constitution (44th Amendment) Act, 1978. In Article 105(3), the words "shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees at the commencement of this Constitution" were substituted by the words "shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (fourty-fourth Amendment) Act, 1978". The similar changes were also effected in Article 194(3) of the Constitution. These amendments have no relevance for determining the interpretation of Article 105(3) since the amendments clearly seem to be only cosmetic for the purpose of omitting the reference of the House of Commons in these articles. Before the amendment in 1978, clause (3) of Article 105 read as under :-
"(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 the Parliament of the United Kingdom, and of its members and
committees, at the commencement of this Constitution."

Contentions The petitioners submit that all the powers, privileges or immunities, as vested on the date of commencement of the Constitution of India, in the House of Commons of the Parliament of United Kingdom had not been inherited by the legislatures in India under Article 105(3) of the Constitution.

The main contention urged is that power and privilege of expulsion was exercised by the House of Commons as a facet
of its power of self-composition and since such power of such self-composition has not been given by the Constitution to
Indian legislature, it did not inherit the power to expel its members. The contention is that expulsion is necessarily punitive in nature rather than remedial and such power vested in House of Commons as a result of its power to punish for contempt in its capacity as a High Court of Parliament and since this Status was not accorded to Indian Legislature, the power to expel could not be claimed by the Houses of Parliament under Article 105(3). It is also their contention that power to expel cannot be asserted through Article 105(3) also for the reason that such an interpretation would come in conflict with other constitutional provisions. A grievance has also been made about denial of principles of natural justice in the inquiry proceedings and it is contended that there are gross and patent illegalities which are not protected from judicial review by Article 122 on plea of procedural irregularities. The contention of the petitioners further is that even the plenary powers of the legislature are controlled by the basic concepts of the Constitution and, therefore, it has to function within the circumscribed limits. The submission is that this Court is the final arbiter on the constitutional issues and the existence of judicial power in such behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court for protection of fundamental rights and for due adherence to the constitutional provisions and scheme in absence of which the power conferred on the
judicial organ would be rendered meaningless. The contention also is that the extent and scope of power conferred on each
branch of the State, limits on the exercise of such power under Constitution and any action of any branch that transgresses
such limit is for the judiciary to determine as the final interpreter of the Constitution. Petitioners submit that the constitutional and legal protection accorded to the citizens would become illusory if it were left to the organ in question to determine the legality of its own action. They further submit that it is also a basic principle of rule of law permeating every provision of the Constitution, rather forming its very core and essence, that the exercise of power by the Executive or any other authority must not only be conditioned by the Constitution but also be in accordance with law in which context it is primarily the function of the judiciary alone to ensure that the law is observed and there is compliance with the requirement of the constitutional provisions which is performed through patent weapon used as power of judicial review.

On the plea that this Court has the jurisdiction to exercise the power of judicial review in a case of this nature where another coordinate organ of the State has asserted and claimed a power and privilege on the strength of a Constitutional provision seemingly also claiming "exclusive cognizance", meaning immunity from judicial interference, the
contentions of the petitioners can be summarized thus:-
(i) The power of judicial review is an incident of and flows from the concept that the fundamental and higher laws are the touchstone of the limits of the powers of the various organs of State which derive power and authority under the Constitution of which the judicial wing is the interpreter;
(ii) Unlike in England where Parliament is sovereign, in a federal State with a written Constitution like India is, the supremacy of the Constitution is fundamental to its existence, which supremacy is protected by the authority of the independent judicial body that acts as the interpreter thereof through the power of judicial review to which even the Legislature is amenable and cannot claim immunity wherefrom;
(iii) The legislative supremacy being subject to the Constitution, Parliament cannot determine for itself the nature, scope and effect of its powers which are, consequently, subject to the supervision and control of judicial organ;
(iv) The petitioners would also point out that unlike the Parliament of England, the status of Legislature in India has never been that of a superior court of record and that even privileges of Parliament are subject to limits which must necessarily be ascertainable and, therefore, subject to scrutiny by the Court, like any other right;
(v) The validity of any proceedings even inside a legislative chamber can be called in question before the Court when it suffers from illegality and unconstitutionality and there is no immunity available to Parliament from judicial review.

It is the petitioners' contention that the Houses of Parliament had no power of expulsion of a sitting member. They plead that the petitioners could not be debarred from membership of the House by or under the impugned notifications pursuant to proceedings consequent upon the media reports inasmuch as substantive and adjectival law had been disregarded and the Constitutional inhibition placed on the exercise of power of debarment had been defeated. On the case that the Indian legislatures cannot claim the power of expulsion of their members, the contentions are stated thus:-
(i) The Legislature has no power to expel its member since the Parliament has not enacted any law which provides for expulsion of a member in a specified circumstance, in terms of enabling power to legislate on the subject as available in Article 105(3) of the Constitution;
(ii) The expulsions are illegal, arbitrary and unconstitutional, being violative of the provisions of Articles 83, 84 and 101 to 103, 105 and 190 to 193 of the Constitution;
(iii) There is no provision either in the Constitution of India or in the Rules of Procedure and Conduct of Business of the Houses of Parliament for expulsion of a member by adoption of a motion and thus the impugned acts were beyond the jurisdiction of Parliament;
(iv) The expulsion of the petitioners from the Legislature through a motion adopted by simple majority was a dangerous precedent which would give dictatorial powers to the ruling majority in the Legislatures in future and thus be prone to further abuse;
(v) The Constitutional law governing the democracies the world over, even in other jurisdictions governed by written Constitutions, would not allow the power of exclusion of the elected members unto the legislative chamber.

Claiming that they were innocent and had been falsely trapped, by the persons behind the so-called sting operation who had acted in a manner actuated by mala fides and greedy intent for cheap publicity and wrongful gains bringing the petitioners into disrepute, the Petitioners question the procedure adopted by the two Houses of Parliament alleging that it suffered from gross illegality (as against procedural irregularity) calling for judicial interference. In this respect, the petitioners submit that the enquiries conducted by the two Houses were unduly hurried; were neither fair nor impartial and have resulted in gross violation of rules of natural justice which were required to be followed inasmuch as the action that was contemplated would entail civil consequences; the Petitioners had not even been treated as ordinary offenders of law and deprived of basic opportunity of defending themselves through legal counsel and opportunity to explain; the evidence in the form of videography etc. had been relied upon without opportunity being given to them to test the veracity of such evidence, specially in the face of their defence that the video clippings had been doctored or morphed which plea had not been properly examined or enquired into and the evidence of such nature had been relied upon in violation of the settled law; the expulsions are illegal, arbitrary and unconstitutional, being violative of the provisions of Articles 14 & 21 of the Constitution; the petitioners claim that as a consequence of the impugned decisions they had suffered irreparable loss and their image and prestige had been lowered in the eyes of the electorate.

The two Houses of Parliament, through their respective secretariats, have chosen not to appear in the matter. The impugned decisions are, however, sought to be defended by the Union of India. The contention urged on behalf of Union of India is that the conduct of accepting money for tabling questions and raising matters in the House was considered by the respective Houses of Parliament as unbecoming of members of the House rendering them unfit for being members of the respective Houses. The actions of expulsions are matters within the inherent power and privileges of the Houses of Parliament. It is a privilege of each House to conduct its internal proceedings within the walls of the House free from interference including its right to impose disciplinary measures upon its members. The power of the Court to examine the action of a House over outsider in a matter of privilege and contempt does not extend to matters within the walls of the House over its own members. When a member is excluded from participating in the proceedings of the House, it is a matter concerning the House and the grievance of expulsion is in regard to proceedings within the walls of Parliament and in regard to rights to be exercised within the walls of the House, the House itself is the final judge. The expulsion of these members has been rightly carried out by respective Houses in exercise of their powers and privileges under Article 105(3) of the Constitution which power and privilege of expulsion has been exercised by the Houses of Parliament in the past as well. The expulsion does not create any disability to be re-elected again as a member of the House. We have heard learned Senior Advocates Mr. Ram Jethmalani, Mr. P.N. Lekhi for the petitioners as also Dr. K.S. Chauhan, Advocate and other learned counsel appearing for the petitioners. For the respondents, we have heard Mr. Gopal Subramanian, learned additional Solicitor General appearing on behalf of Attorney General for India and Mr. T.R. Andhyarujina, learned Senior Advocate on behalf of Union of India.

Constitutional Scheme
To appreciate the contentions, it is necessary to first examine the constitutional scheme. That the Constitution is the Supreme lex in this Country is beyond the pale of any controversy. All organs of the State derive their authority, jurisdiction and powers from the Constitution and owe allegiance to it. This includes this Court also which represents the judicial organ. In the celebrated case of Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], this Court found certain basic features of the Constitution that include, besides supremacy of the Constitution, the republican and democratic form of Government, and the separation of powers between the Legislature, the Executive and the Judiciary. The principle of supremacy of the Constitution has been reiterated by this Court post Kesavananda Bharati in case after case including, to name just some of them, Indira Nehru Gandhi v. Raj Narain [1975 (Suppl) SCC 1], Minerva Mills Ltd. v. Union of India, [(1980) 3 SCC 625], Sub-Committee on
Judicial Accountability v. Union of India [(1991) 4 SCC 699], I. Manilal Singh v. H . Borobabu Singh (Dr), [1994 Supp (1) SCC 718], Union of India v. Assn. for Democratic Reforms,[(2002) 5 SCC 294], Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter) [(2002) 8 SCC 237], People's Union for Civil Liberties (PUCL) v. Union of India,[(2003) 4 SCC 399], Pratap Singh v. State of Jharkhand, [(2005) 3 SCC 551], Rameshwar Prasad (VI) v. Union of India, [(2006) 2 SCC 1], Kuldip Nayar vs. Union of India, [(2006) 7 SCC 1]. That the parliamentary democracy in India is qualitatively distinct from the one in England from where we, have borrowed the Westminster model of Government, is also well settled. In this context, before proceeding further on this premise, we may quote the following observations of the Constitution Bench (7 Judges) appearing at page 444 in Special Reference No. 1 of 1964, [(1965) 1 SCR 413] (UP Assembly case) :-

"In dealing with this question, it is necessary to bear in mind one fundamental feature of a Federal Constitution. In England, Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament, and that the right or power of Parliament extends to every part of the Queen's dominions [Dicey, The Law of the Constitution 10th ed. Pp.xxxiv, xxxv]. On the other hand, the essential characteristic of federalism is "the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other". The supremacy of the constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers. Nor is any change possible in the constitution by the ordinary process of federal or State legislation [Ibid p.Ixxvii]. Thus the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours."

In the constitutional scheme that has been adopted in India, the Legislatures play a significant role in pursuit of the
goals set before the nation and command the position of grandeur and majesty. The Legislatures undoubtedly have plenary powers but such powers are controlled by the basic concepts of the written constitution and can be exercised within the legislative fields allotted to their respective jurisdiction under the Seventh Schedule. They have the plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution. But, the basis of that power is the Constitution itself. In this context, it would be fruitful to also take note of the following observations appearing at page 445 of the afore-mentioned judgment in UP Assembly case :-
" .Besides, the legislative supremacy of our legislatures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. If the legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution."

The judicial organ of the State has been made the final arbiter of Constitutional issues and its authority and jurisdiction in this respect is an important and integral part of the basic structure of the Constitution of India. Before coming in grips with the complex Constitutional questions that have been raised, we would well remind ourselves, more than we do everyone else, of the following further observations made at page 447 :-
" In this connection it is necessary to remember that the status, dignity and importance of these two respective institutions, the legislatures and the Judicature, are derived primarily from the status, dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive which is another important
constituent of a democratic State, must function not in antinomy nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic State alone will help the peaceful development, growth and stabilisation of the democratic way of life in this country."

The issues involved are required to be examined bearing in mind the basic ethos of our Constitutional scheme in the
above light.

The Constitution of India provides through Chapter II of Part V for Union Legislature, called the "Parliament".
Parliament consists of, besides the President, two Houses known respectively as the Council of States (Rajya Sabha) and
the House of the People (Lok Sabha). Article 80 deals with the matter of composition of Rajya Sabha. Article 81, on the
other hand, provides for composition of Lok Sabha. In terms of Article 83, Rajya Sabha is a permanent body, not subject to
dissolution, its continuance being ensured by replacements of one third of the members who retire on the expiration of every
second year. Lok Sabha, on the other hand, is given a fixed term of five years, unless sooner dissolved or unless its term is
extended in situation of emergency as provided in the proviso to sub-rule (2) of Article 83.

In the loose federal structure that India has adopted for itself, wherein India is an indestructible Union of destructible units, there is a provision for State Legislature in Chapter III of Part VI governing the States, almost similar to the set up at the Centre. The relations between the Union and the States are controlled by the provisions contained in Part XI of the
Constitution.

The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the States respectively, the authority to make rules for regulating their respective procedure and conduct of business "subject to the provisions of this Constitution".

Since we are concerned mainly with the Houses of Parliament in these proceedings, it may be mentioned that each House in exercise of its powers under Article 118 has framed detailed rules of procedure which are called "Rules of Procedure and Conduct of Business in Lok Sabha" and Rules of Procedure and Conduct of Business in the Council of States".

Conscious of the high status of these bodies, the Constitution accorded certain powers, privileges and immunities to the Parliament and State Legislatures and their respective members. For this purpose, specific provisions were included in the Constitution in Articles 105. For the present, it may only be noticed that sub-Article (1) of Article 105 and Article 194 respectively confers on the Members of Parliament and the State Legislatures respectively "freedom of speech" in the Legislature, though "subject to the provisions" of the Constitution and "subject to the rules and orders regulating the procedure" of Parliament or of the Legislatures, as the case may be.

Sub-Article (2) of both the said Articles grants, inter alia, absolute immunity to members of the Legislatures from "any proceedings in any Court in respect of anything said or any vote given" by them in the Legislatures or any Committee thereof. Sub-Article (3) of Article 105 and Article 194 declares that "the powers, privileges and immunities" of each House of the Legislatures and the members and Committees thereof, "in other respects" shall be "such as may from time to time be
defined" by the Parliament or the State Legislature, as the case may be, "by law" and, "until so defined", to be those as were
enjoyed by the said Houses or members of the Committees thereof immediately before coming into force of the amendment in 1978.

Article 122 is of great import in the context of, amongst others, Article 105, since it seems to restrict the jurisdiction of
the Courts in relation to "proceedings of Parliament". It reads as under:- "122. Courts not to inquire into proceedings of Parliament.
(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.
(2) 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."

There is a similar provision in relation to State Legislature.Having given our anxious considerations to the myriad issues that have been raised on both sides of the divide, we have found that the primordial questions that need to be addressed by the Court can be formulated as under :-
1. Does this Court, within the constitutional scheme, have the jurisdiction to decide the content and scope of powers, privileges and immunities of the Legislatures and its members?
2. If the first question is answered in the affirmative, can it be found that the powers and privileges of the Legislatures in India, in particular with reference to Article 105, include the power of expulsion of their members?
3. In the event of such power of expulsion being found, does this Court have the jurisdiction to interfere in the exercise of the said power or privilege conferred on the Parliament and its members or Committees and, if so, is this jurisdiction circumscribed by certain limits?In our approach to these issues of great importance, we have followed the advice of Thomas Huxley in the following words :- "It is not who is right, but what is right, that is of importance"

In our quest, again borrowing the words of Thomas Huxley, we must "learn what is true in order to do what is right".

The need, if any, to take up for consideration, the grievances expressed by the petitioners in relation to the manner of exercise of the power and privilege asserted by both Houses of Parliament to expel their respective members would arise in light of decision on the two first-mentioned cardinal questions. Court's Jurisdiction to decide on the scope of Article 105(3)

There was virtually a consensus amongst the learned counsel that it lies within the powers and jurisdiction of this Court to examine and determine the extent of power and privileges to find out whether actually power of expulsion is available under Article 105(3) or not. Having regard to the delicate balance of power distributed amongst the three chief organs of the State by the Constitution of India and the forceful assertions made particularly with regard to the limitation on court's jurisdiction, we decided not to depend upon mere concession of the learned counsel as to our jurisdiction. We thought it prudent to examine it fully even in the context of primary question about the judicial authority to go into the question of existence of a particular power or privilege asserted and claimed under Article 105, so as to reassure ourselves that we were not in any manner intruding into a zone which is out-of-bounds for us.

Fortunately, the subject at hand is not a virgin territory. There have been occasions in the past for this court to go into these issues, though in somewhat different fact situations. Similarly, we have the benefit of opinion on these questions, expressed by at least three High Courts, though that happens to be a divided opinion.

As can be seen from the language employed in Article 105, the Parliament is empowered to define, by law, the powers, privileges and immunities of each House and of their Members and Committees in respects other than those specified in the Constitutional provisions. Though some part of the arguments advanced on behalf of the petitioners did try to refer to certain statutory provisions, for example, provisions contained in Sections 8 to 11 of the Representation of People Act 1951, as referable to the enabling power given to the Parliament in the first part of Article 105(3) but for present purposes, we would assume that Parliament has not yet exercised the said enabling power in as much as there is no law enacted till date that can be referred as cataloging the powers, privileges and immunities of each House of Parliament and of their members and committees. This consequence leads to continuity of the life of the second part of Article 105(3) in as much as that part of the provision was designed to come to an end as soon as the Parliament defined by law its powers, privileges and immunities. Therefore, powers, privileges and immunities not having been defined, the question is what are those powers which were enjoyed by House of Commons at the commencement of our Constitution as that will determine the powers, privileges and immunities of both Houses of Indian Parliament.

The history of the subject of Parliamentary privileges indicates numerous instances where the effort at tracing the dividing line between the competence of courts and the exclusive jurisdiction of the legislature threw up complex Constitutional questions giving rise to divergent opinions and decisions even in England, more importantly, in connection with the House of Commons. These questions included the abstract question whether the law of Parliament in such regard was a "particular law" or "part of the common law" in its wide and extended sense and the practical question whether the House of Commons was to be the sole judge of a matter of privilege claimed by it even when the rights of third parties were involved or whether in such cases the issues could be decided in the courts. The next question arising from the last mentioned issue naturally concerned the extent of the power of the judges that is to say if they were bound to accept and apply the parliamentary interpretation of the law or were free to form their own view in such regard.

The dust has since settled even in England which jurisdiction since concedes the jurisdiction of the court to decide all questions of privilege, except those concerning exclusive jurisdiction of the legislative chamber over its own internal proceedings.

The works of English and Commonwealth authors have always been treated as the most authoritative references for
determining the source of a Privilege or power exercised by the House of Commons. They include Halsbury's Laws of England, Maitland, Wade and Phillips, Keir & Lawson, Sir Barnett Cocks, Ridges on Constitutional Law, and Sir William Anson's "The Law and Custom of the Constitution". Sir Thomas Erskine May was a clerk of the House of Commons (1871-1886). His work "Parliamentary Practice", hereinafter referred to as "May's Parliamentary Practice", is universally regarded as an authoritative exposition of this branch of law. The following extract from page 183 in chapter 11 "Jurisdiction of Courts of Law in Matters of Privilege" as appearing in Erskine May's Parliamentary Practice, 20th Edition reflects the prevalent law in United Kingdom:-

"The problem thus became one of reconciling the law of privilege with the general law. The solution gradually marked out by the courts is to insist on their right in principle to decide all questions of privilege arising in litigation before them, with certain large exceptions in favour of parliamentary jurisdiction. Two of these, which are supported by a great weight of authority, are the exclusive jurisdiction of each House over its own internal proceedings, and the right of either House to commit and punish for contempt. While it cannot be claimed that either House to commit or formally acquiesced in this assumption of jurisdiction by the courts, the absence of any conflict for over a century may indicate a certain measure of tacit acceptance."


The learned counsel for all sides have referred to Bradlaugh v. Gosset [1884 12 QBD 271]. Charles Bradlaugh, the plaintiff in that case before Queen's Bench Division had been elected a Burgess to serve in the House of Commons and was entitled to take oath by law prescribed to be taken by the members of the said chamber of legislature and to sit and vote in the House as an elected representative. This resolution was explained in due course by Speaker to mean that the exclusion of Bradlaugh from the House would continue "until he should engage not to attempt to take the oath in disregard of the resolution of the House now in force". The issues that were raised before the court included the question whether the House of Commons had a right to pass such a resolution forbidding the member of the House within the walls of the House itself from doing something which by the law of the land he had a right to do so and whether the court could inquire into the said right and allow an action to be maintained by a member of the House. Reliance has been placed on certain observations made in the judgment that was rendered in the said fact situation. At page 275, Lord Coleridge, C.J. observed as under:-"Alongside, however, of these propositions, for the soundness of which I should be prepared most earnestly to contend, there is another proposition equally true, equally well established, which seems to me decisive of the case before us. What is said or done within the walls of Parliament cannot be inquired into in a court of law. On this point all the judges in the two great cases
which exhaust the learning on the subject Burdett v. Abbott [14 East, 1, 148] and Stockdale v. Hansard [9 Ad. & E. 1.]; - are agreed, and are emphatic. 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 into utter contempt and inefficiency without it." [14 East, at p. 152]"

The learned counsel then referred to the Privy Council decision in Richard William Prebble v. Television New Zealand Ltd. [1994 (S) WLR 970]. It arose out of a defamation action by a former Minister of the Government of New Zealand where proceedings in Parliament were questioned. The issue of infringement of parliamentary privilege was raised in the context of Article 9 of the Bill of Rights 1689 which declared that the freedom of speech and debates or proceedings in Parliament "ought not to be impeached or questioned in any court or place out of Parlyament". The Privy Council observed as under at page 976:-

"In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognize their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protect on of its established privileges. Burdett v. Abbot (1811) 14 East 1; Stockdale v. Hansard (1839) 9 Ad. & EI. 1; Bradlaugh v. Gossett (1884 12 QBD 271; Pickin v. British Railways Board [(1974) AC 765; Pepper v. Hart 1993] AC 593. As Blackstone said in his Commentaries on the Laws of England, 17th ed. (1830), vol.1, p. 163:

"the whole of the law and custom of Parliament has its original from this one maxim, 'that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.'"

Further, the views formulated in Prebble v. Television New Zealand Ltd. were expressed at page 980 thus:
"Parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by in proper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House, subject to any statutory exception such as exists in New Zealand in relation to perjury under Section 108 of the Crimes Act 1961."

The learned counsel would then refer to the law that has been evolved in India, the case of M.S.M. Sharma v. Sri Krishna Sinha [1959 Supp (1) SCR 806], hereinafter referred to as case of Pandit Sharma (I), being perhaps the first in a series of such cases on the subject.Pandit Sharma, the petitioner in that case was editor of an English Daily Newspaper "Searchlight" of Patna. He invited the wrath of the legislative assembly of Bihar by publishing extracts from proceedings of the legislative assembly including certain parts which had been ordered to be expunged by the Speaker. In this context, the Speaker had referred the matter to the Privileges Committee of the assembly which in turn issued a show cause notice to him. Pandit Sharma brought writ petition in this court under Article 32 of the Constitution of India alleging that the proceedings initiated by the legislative assembly had violated his fundamental right of speech and expression under Article 19 (1) (a) as also the fundamental right of protection of his personal liberty under Article 21. The case was decided by a Constitution Bench (five Judges), with main focus on two principal points; namely, the availability of a privilege under Article 194(3) of the Constitution to the House of a legislature in India to prohibit entirely the publication of the publicly seen and heard proceedings that took place in the House or even to prohibit the publication of such part of the proceedings as had been directed to be expunged and as to whether the privilege of the legislative chamber under Article 194(3) prevailed over the fundamental right of a citizen under Article 19 (1) (a). Noticeably, no specific objection as to the jurisdiction of the court in examining the issue of existence and availability of the particular privilege was raised at any stage. It may be mentioned here that the writ petition of Pandit Sharma was dismissed on the basis of majority view, inter alia, holding that the legislatures in India were vested with the power or privilege of prohibiting the publication of debates or proceedings that took place in the House, of even a true and faithful report, as indeed of an inaccurate or garbled version thereof. It was further held that the powers, privileges and immunities available in terms of Articles 105(3) and 194(3) stood in the same supreme position as the provisions of Part III of the Constitution and could not be affected by Article 13 and, therefore, the principle of harmonious construction required to be adopted. The court concluded that the fundamental right of free speech and expression under Article 19 (1)(a) being general in nature must yield to Article 194(1) and the latter part of Article 194(3) which are special provisions. The challenge to the proceedings under Article 194(3) on the basis of Article 21 was also repelled on the ground of it being "in accordance with the procedure established by law" in as much as the rules framed by the legislative assembly under Article 208 laid down the
procedure.

The case of Pandit Sharma did not end there. Subsequently, the legislative assembly of Bihar came to be prorogued several times and the committee of privileges was also reconstituted. This led to a fresh notice being issued to Pandit Sharma in the wake of which he brought another writ petition under Article 32 of the Constitution, substantially raising the same questions and contentions as had been agitated in the earlier proceedings by him before this court. This writ petition was dismissed by the Constitution Bench (eight Judges). The judgment is reported as M.S.M. Sharma v. Shree Krishna Sinha [(1961) 1 SCR 96], hereinafter referred to as case of Pandit Sharma (II).

In Para 10 of the Judgment, this Court observed thus:-"10. . It was contended that the procedure adopted inside the House of the Legislature was not regular and not strictly in accordance with law. There are two answers to this contention, firstly, that according to the previous decision of this Court, the petitioner has not the fundamental right claimed by him. He is, therefore, out of Court. Secondly, the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the contention raised on behalf of the petitioner. No Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business. Possibly, a third answer to this part of the contention raised on behalf of the petitioner is that it is yet premature to consider the question of procedure as the Committee is yet to conclude its proceedings. It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting
its business, that cannot be a ground for interference by this Court under Article 32 of the Constitution. Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non- compliance with rules of procedure cannot be a ground for issuing a writ under Article 32 of the Constitution vide Janardan Reddy v. State of Hyderabad [1951 SCR 344]."

By far, the advisory opinion given by a Constitution Bench comprising of seven Judges of this court in UP Assembly case is the most elaborate discourse on the subject of powers, privileges and immunities of the legislatures under the Constitution of India. The matter had arisen out of a Reference by the President of India under Article 143(1) of the Constitution seeking opinion of this court on certain issues, the genesis of which was traceable to certain unfortunate developments concerning the legislative assembly of the State of Uttar Pradesh and the Lucknow Bench of the High Court at Allahabad. The legislative assembly of Uttar Pradesh had committed one Keshav Singh, who was not one of its members, to prison for its contempt. The warrant of committal did not contain the facts constituting the alleged contempt. Keshav Singh moved a petition, inter alia, under Article 226 of the Constitution through his advocate challenging his committal as being in breach of his fundamental rights. A division bench of the High Court sitting at Lucknow gave notice to the Government counsel and on the appointed day proceeded to hear the application for bail. At that stage, the Government Counsel did not appear. The division bench heard the application and ordered release of Keshav Singh on interim bail pending decision on his writ petition. The legislative assembly found that Keshav Singh and his advocate in moving the High court and the two Judges of the High Court in entertaining the petition and granting bail had committed contempt of the legislative assembly. The assembly passed a resolution that all of them, including the two High Court Judges, be produced before it in custody. The High Court Judges and the advocate in question thereupon filed writ petitions before the High Court at Allahabad. A full bench of the High Court admitted the writ petitions and ordered the stay of execution of the assembly's resolution against them. Subsequently, the legislative assembly passed a clarificatory resolution modifying its earlier stand and asking the Judges and the advocate to appear before the House and offer their explanation. It was against this backdrop that the President made a reference under Article 143(1) of the Constitution seeking opinion mainly as to the Constitutional relationship between the High Court and the State Legislature in matters of the powers and privileges of the latter. The contours of the main controversy were summarized by this court at page 439 in the report in the following words:-

"27. . Is the House the sole and exclusive judge of the issue as to whether its contempt has been committed where the alleged contempt has taken place outside the four walls of the House? Is the House the sole and exclusive judge of the punishment which should be imposed on the party whom it has found to be guilty of its contempt? And, if in enforcement of its decision the House issues a general or unspeaking warrant, is the High Court entitled to entertain a habeas corpus petition challenging the validity of the detention of the person sentenced by the House?..........."

It is clear from the opinion rendered in UP Assembly case that the State legislature, though participating in the hearing, expressed reservations as to the jurisdiction of this court in any manner in respect of the area of controversy covered by the questions, insisting that "the question about the existence and extent of the powers, privileges and immunities of the House, as well as the question about the exercise of the powers and privileges were entirely and exclusively within the jurisdiction of the House; and whatever this Court may say will not preclude the House from deciding for itself the points referred to us under this Reference", referring in this context, inter alia to the fact that there was no lis before the court which was therefore not exercising "its judicial function" while dealing with a reference under Article 143 (1).

After examining the issue of absolute immunity of the proceedings of the House in such matters from challenge in the court, in light of various Constitutional provisions and tracing the development of the law on the subject in England with the help, amongst others, of May's Parliamentary Practice, this Court summarized the legal position as obtaining in United Kingdom, at page 467, as under:-

"83. In regard to punishment for contempt, a similar process of give and take by convention has been in operation and gradually a large area of agreement has, in practice, been evolved. Theoretically, the House of Commons claims that its admitted right to adjudicate on breaches of privilege implies in theory the right to determine the existence and extent of the privileges themselves. It has never expressly abandoned this claim. On the other hand, the courts regard the privileges of Parliament as part of the law of the land, of which they are bound to take judicial notice. They consider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction, and to decide it according to their own interpretation of the law [May's Parliamentary Practice, p. 172]. Naturally, as a result of this dualism the decisions of the courts are not accepted as binding by the House in matters of privilege, nor the decisions of the House by the courts; and as May points out, on the theoretical plane, the old dualism remains unresolved. In practice, however, "there is much more
agreement on the nature and principles of privilege than the deadlock on the question of jurisdiction would lead one to expect" and May describes these general conclusions in the following words:

(1) It seems to be recognized that, for the purpose of adjudicating on questions of privilege, neither House is by itself entitled to claim the supermacy over the ordinary courts of justice which was enjoyed by the undivided High Court of Parliament. The supremacy of Parliament, consisting of the King and the two Houses, is a legislative supremacy which has nothing to do with the privilege jurisdiction of either House acting singly.

(2) It is admitted by both Houses that, since either House can by itself add to the law, neither House can by its own declaration create a new privilege. This implies that privilege is objective and its extent ascertainable, and reinforces the doctrine that it is known by the courts. On the other hand, the courts admit:

(3) That the control of each House over its internal proceedings is absolute and cannot be interfered with by the courts.

(4) That a committal for contempt by either House is in practice within its exclusive jurisdiction, since the facts constituting the alleged contempt need not be stated on the warrant of committal [May's Parliamentary Practice, p. 173].

84. It is a tribute to the remarkable English genius for finding pragmatic ad hoc solutions to problems which appear to be irreconcilable by adopting the conventional method of give and take. The result of this process has been, in the words of May, that the House of Commons has not for a hundred years refused to submit its privileges to the decision of the courts, and so, it may be said to have given practical recognition to the jurisdiction of the courts over the existence and extent of its privileges. On the other hand, the courts have always, at any rate in the last resort, refused to interfere in the application by the House of any of its recognized privileges [May's Parliamentary Practice, pp. 173-74]. That broadly stated, is the position of powers and privileges claimed by the House of Commons."

Sarkar J. in his separate judgment in the same case was ad idem with the majority opinion in this context. Rejecting the contentions based on the observations in Bradlaugh, he observed at page 508 as under:-
"This passage should suffice to illustrate the nature of the dispute. It will not be profitable at all, and indeed I think it will be 'mischievous', to enter upon a discussion of that dispute for it will only serve to make it turbid, by raking up impurities which have settled down, a stream which has run clear now for years. Furthermore that dispute can never arise in this country for here it is undoubtedly for the courts to interpret the Constitution and, therefore, Article 194(3). It follows that when a question arises in this country under that article as to whether the House of Commons possessed a particular privilege at the commencement of the Constitution, that question must be settled, and settled only, by the Courts of law. There is no scope of the dreaded "dualism" appearing here, that is, courts entering into a controversy with a House of a legislature as to what its privileges are. I think what I have said should suffice to explain the nature of the privileges for the purposes of the present reference and I will now proceed to discuss the privileges of the Assembly that are in question in this case, using that word in the sense of rights ancillary to the main function of the legislature." (Emphasis supplied)

His conclusions to above effect were steeled in view of the legal position in England, as is clear from the observations at
page 522 of his Judgment, which read as under:-
"All privileges of the House of Commons are based on law. That law is known as Lex Parliamenti. Hence privileges are matters which the House of Commons possesses as of right. In Stockdale v. Hansard [112 E. R. 1112] all the Judges held that the rights of the House of Commons are based on lex Parliamenti and that law like any other law, is a law of the land which the courts are entitled to administer."

The case State of Karnataka v. Union of India [(1977) 4 SCC 608] decided by a Constitution Bench (seven Judges) of this court finally clinched the issue beyond the pale of any doubts. The case had arisen against the backdrop of appointment by the Central Government of a Commission of Inquiry against the then Chief Minister of Karnataka. The State of Karnataka filed a suit in this court, inter alia, for a declaration that the appointment of the Commission was illegal, in as much as the terms of reference of the Inquiry Commission covered matters falling exclusively within the sphere of the State's legislative and executive power on which basis, amongst others, it was contended that the federal structure implicit and accepted as an inviolable basic feature of the Constitution was being abridged. Some arguments in the context of this controversy were founded on the powers and privileges of the legislature of the State under Article 194 of the Constitution. Examining these arguments, Beg CJ. in his judgment observed as under:-

"63. Now, what learned Counsel for the plaintiff seemed to suggest was that Ministers, answerable to a Legislature were governed by a separate law which exempted them from liabilities under the ordinary law. This was never the Law in England. And, it is not so here. Our Constitution leaves no scope for such arguments, based on a confusion concerning the "powers" and "privileges" of the House of Commons mentioned in Articles 105(3) and 194(3). Our Constitution vests only legislative power in Parliament as well as in the State Legislatures. A House of Parliament or State Legislature cannot try anyone or any case directly, as a Court of Justice can, but it can proceed quasi-judicially in cases of contempts of its authority and take up motions concerning its "privileges" and "immunities" because, in doing so, it only seeks removal of obstructions to the due performance of its legislative functions. But, if any question of jurisdiction arises as to whether a matter falls here or not, it has to be decided by the ordinary courts in appropriate proceedings." (Emphasis supplied)

In view of the above clear enunciation of law by Constitutional Benches of this court in case after case, there ought not be any doubt left that whenever Parliament, or for that matter any State legislature, claims any power or privilege in terms of the provisions contained in Article 105(3), or Article 194(3) as the case may be, it is the court which has the authority and the jurisdiction to examine, on grievance being brought before it, to find out if the particular power or privilege that has been claimed or asserted by the legislature is one that was contemplated by the said constitutional provisions or, to put it simply, if it was such a power or privilege as can be said to have been vested in the House of Commons of the Parliament of United Kingdom as on the date of commencement of the Constitution of India so as to become available to the Indian legislatures.

Historical perspective from England
To find out the basis of House of Commons possessing the right of expulsion of its members, it is necessary to examine the historical perspective of preliminary powers and privileges and immunities. For finding out the roots of powers, privileges and immunities of House of Commons, it is necessary to refer to the views of constitutional authors mentioned herein before.The term 'privilege in law' is defined as immunity or an exemption from some duty, burden, attendance or liability conferred by special grant in derogation of common right. The term is derived from an expression 'privilegium' which means a law specially passed in favour of or against a particular person.

May, in his "Parliamentary Practice", has defined parliamentary privilege as "the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies of individuals". Thus, privilege, though not part of the law of the land, is to a certain extent an exemption from the ordinary law.

Rutledge, in his "Procedure of the House of Commons" [Volume I, page 46], defined privileges as "the sum of the fundamental rights of the House and of its individual members as against the prerogatives of the Crown, the authority of the courts of law, and the special rights of the House of Lords".The origin of parliamentary privileges is inextricably intertwined with the specific history of the institution of Parliament in England, and more specifically with the battle between Parliament and the English Monarch for political control in the 17th century. An understanding of the manner in which the concept of parliamentary privilege developed, therefore, requires a sound understanding of the institutional history of Parliament in the United Kingdom.Parliament in the United Kingdom emerged in the Thirteenth Century. By 14th century, Parliament had begun to exercise a small measure of judicial power. It took on the role of a court in relation to treason and related matters. In 1376, Parliament, specifically the Commons, had taken upon itself the power of impeachment of the King's servants. Thus, the lords could hear appeals of treason and Bills of Attainder where the accuser was the King. The long struggle of the British subjects to bring about a parliamentary democracy involved royal concessions, people's resistance, claims against Crown prerogatives, execution of Monarchs and restoration of Parliament, struggles, advances and retreats, and it is through these turbulent times that the House of Commons emerged as a representative form of government.The origin of some of the Parliamentary privileges preceded Parliament itself and was part of the King's peace, common to all his subjects, but in special measure shared by his servants. The privilege of freedom of speech eventually came to be statutorily recognized by Article 9 of the Bill of Rights Act, 1688.

May [23rd edn., pp.78, 79, 83, 89, 90] describes the historical development of privileges as follows:-
"At the commencement of every Parliament it has been the custom for the Speaker, in the name, and on the behalf of the Commons, to lay claim by humble petition to their ancient and undoubted rights and privileges; particularly to freedom of speech in debate, freedom from arrest, freedom of access to Her Majesty whenever occasion shall require; and that the most favourable construction should be placed upon all their proceedings ..

Freedom of Speech - The first claim in the Speaker's petition is for freedom of speech in debate. By the latter part of the fifteenth century, the Commons of England seems to have enjoyed an undefined right to freedom of speech, as a matter or tradition rather than by virtue of a privilege sought and obtained

FREEDOM FROM ARREST The second of the Speaker's customary petitions on behalf of the Commons at the beginning of a Parliament is for freedom from arrest. The development of this privilege is in some ways linked to that of other privileges. Arrest was frequently the consequence of the unsuccessful assertion of freedom of speech, for example .

FREEDOM OF ACCESS The third of the Speaker's petitions is for freedom of access to Her Majesty whenever occasion shall require. This claim is medieval (probably fourteenth century) in origin, and in an earlier form seems to have been sought in respect of the Speaker himself and to have encompassed also access to the Upper House ..

FAVOURABLE CONSTRUCTION The final petition which the speaker makes is that the most favourable construction should be placed upon all the House's proceedings

PRIVILEGE WITH RESPECT TO THE CONSTITUTION OF THE HOUSE It is a privilege of the House of Commons to provide for its own proper constitution as established by law. The origins of this privilege are to be found in the sixteenth century."

In the UP Assembly Case, while dealing with questions relating to Powers, Privileges and Immunities of State Legislatures, it was observed as under:-"69 Parliamentary privilege, according to May, is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the ordinary law. The particular privileges of the House of Commons have been defined as "the sum of the fundamental rights of the House and of its individual Members as against the prerogatives of the Crown, the authority of the ordinary courts of law and the special rights of the House of Lords". There is a distinction between privilege and function, though it is not always apparent. On the whole, however, it is more convenient to reserve the term "privilege" to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions. The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are "absolutely necessity for the due execution of its powers". They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity [May's Parliamentary Practice, pp. 42-43]."

According to May, origin of the modern Parliament in England consisted in its judicial functions. It was Maitland who was the first to point out in his introduction to the Parliament Roll of 1305 that Parliament at that time was the King's "Great Court" and thus, inter alia, the highest Court of royal justice. It is now generally accepted that a strong judicial streak in the character of the earliest Parliament was noticeable throughout the earlier period of English history, reflected by the fact that dispensation of justice was one of its chief functions in the eyes of the subjects of the realm, aside from the political and economic business.

Out of the two chambers of Parliament of United Kingdom, the House of Lords has continued till the present times as the Court of Judicature, as part of which function it has the power to sit as a Court during prorogation and dissolution. The final appellate jurisdiction vests in the Lords and, in matters of impeachment, the Lords are the sole judges of the crime in proceedings that involve the other chamber, the House of Commons, as the accusers or advocates. While the House of Lords would claim its powers and privileges on the basis of theory of inheritance and Divine Right of Kings, the House of Commons was constrained to wage a fierce struggle against the prerogatives of the Crown and of the House of Lords to assert and claim its rightful place. It was almost a fight for its existence in which the House of Commons was pitted against not only the Crown and the House of Lords, but also the judicature which was regarded as a creature of the King and which wing was subordinate to the House of Lords that happened to be the main opponent of the House of Commons.

The dust raised by the bitter struggle waged by the House of Commons to assert its privileges finally settled when
equilibrium was reached in the 19th century with limits of privileges being prescribed and accepted by Parliament, the
Crown and the courts in England. The position that emerged against this backdrop has been noticed by this court in the
following words in the UP Assembly Case:-
"The two Houses are thus of equal authority in the administration of a common body of privileges. Each House, as a constituent part of Parliament, exercised its own privileges independently of the other. They are enjoyed, however, not by any separate right peculiar to each, but solely by virtue of the law and custom of Parliament. Generally speaking, all privileges properly so called, appertain equally to both Houses. They are declared and expounded by each House; and breaches of privilege are adjudged and censured by each; but essentially, it is still the law of Parliament that is thus administered. It is significant that although either House may expound the law of Parliament, and vindicate its own privileges, it is agreed that no new privilege can be created. This position emerged as a result of the historic resolution passed by the House of Lords in 1704. This resolution declared "that neither House of Parliament have power, by any vote or declaration, to create to themselves new privileges, not warranted by the known laws and customs of Parliament". This resolution was communicated by the House of Lords to Commons and assented to by them [May's Parliamentary Practice, p.47]. Thus, there can be no doubt that by its resolutions, the House of Commons cannot add to the list of its privileges and powers."

The resolution of 1704, mentioned in the passage extracted above, had been adopted by the House of Lords in answer to an earlier resolution passed by the House of Commons declaring its intent to treat the conduct of any person in moving the court for relief in matters mentioned by the resolution of the House of Commons as amounting to its contempt.

The main privileges which are claimed by the House of Commons were noticed at length at page 462 of the judgment in the UP Assembly Case, as under:-
"72. ..Freedom of speech is a privilege essential to every free council or legislature, and that is claimed by both the Houses as a basic privilege. This privilege was from 1541 included by established practice in the petition of the Commons to the King at the commencement of the Parliament. It is remarkable that notwithstanding the repeated recognition of this privilege, the Crown and the Commons were not always agreed upon its limits. This privilege received final statutory recognition after the Revolution of 1688. By the 9th Article of the Bill of Rights, it was declared "that the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament [May's Parliamentary Practice, p. 52]".

73. Amongst the other privileges are: the right to exclude strangers, the right to control publication of debates and proceedings, the right to exclusive cognizance of proceedings in Parliament, the right of each House to be the sole judge of the lawfulness of its own proceedings, and the right implied to punish its own Members for their conduct in Parliament [ibid, p. 52-53].

74. Besides these privileges, both Houses of Parliament were possessed of the privilege of freedom from arrest or molestation, and from being impleaded, which was claimed by the Commons on ground of prescription "

The privilege of freedom of speech under Article 9 of the Bill of Rights includes the freedom of the member to state whatever he thinks fit in debate, howsoever offensive it may be to the feelings, or injurious to the character, of individuals. He is protected by his privilege from any action for libel, as well as from any question or molestation [May's Parliamentary Practice, 23rd edn., pp 96-97]. The privilege of freedom from arrest has never been allowed to interfere with the administration of criminal justice or emergency legislation.In early days of its struggle the House of Commons would assert a claim to all kinds of privileges for itself and its members but in the course of time many of such privileges either fell into disuse or faded out of existence or came to be controlled by legislation. Examples in this context can be given of the privilege of freedom from being impleaded, limitation put by the Parliamentary Privilege Act, 1770 on the freedom from arrest and the privilege of exemption from jury service. What is important for purposes at hand is that the major privileges properly described as privileges essential for the efficient functioning of the House still continue in force. As per May's Parliamentary Practice [23rd edn., pp. 128] contempt came to be defined as "any act or omission which obstructs or impedes either House of Parliament in the performance of its functions or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results even though there is no precedent of the offence".

Power to punish and commit for contempt is one of the privileges asserted by both Houses of Parliament in United Kingdom. In the context of power to punish for contempt, this court found in the UP Assembly Case (at page 461) as under:-

" ..Since the decision of the Privy Council in Kielley v. Carson [4 Moore P.C. 63] it has been held that this power is inherent in the House of Lords and the House of Commons, not as a body with legislative functions, but as a descendant of the High Court of Parliament and by virtue of the lex et consuetudo parliamenti [May's Parliamentary Practice, p.44]. Historically, as originally the weaker body, the Commons had a fiercer and more prolonged struggle for the assertion of their own privileges, not only against the Crown and the courts, but also against the Lords. Thus the concept of privilege which originated in the special protection against the King began to be claimed by the Commons as customary rights, and some of these claims in the course of repeated efforts to assert them hardened into legally recognised
"privileges".

As has been noticed earlier, the historic origin of the doctrine of privileges of the legislature in England is founded on its judicial functions. The House of Lords has always claimed itself to be a Court of Record and as such having the inherent authority and power not only to imprison but also to impose fines in matters of contempt. But then, its position as a Court of Record does not inure, according to Lord Kenyon, "when exercising a legislative capacity". According to May's Parliamentary practice, the House of Commons at one point of time in the history had also claimed to be a Court of Record, but this position has never been finally determined. Be that as it may, as observed in the UP Assembly Case (at pp. 465-466), on the authority of May's Parliamentary Practice, the genesis of the power of commitment, "the key stone of Parliamentary privileges", as possessed by the House of Commons, arises out of "the medieval inability to conceive of a constitutional authority otherwise than as in some sense a court of justice".

The medieval concept of Parliament in England primarily as a court of justice, the 'High Court of Parliament' gave rise to
the firm belief that in order to defend the dignity of Parliament against disrespect and affronts, there must vest in it a power
to commit, without which the privileges of Parliament would not exist. On the penal jurisdiction of the House arising from
this, May in his "Parliamentary Practice" [23rd edn. pp. 91-92] would observe as follows:-

"The Lords derived an independent power to punish from their original membership of the Curia Regis. Immemorial constitutional antiquity was not similarly available to the Commons, and indeed its possession of penal jurisdiction was challenged on this ground as late as the nineteenth century, and has been defended by arguments which confused legislative with judicial jurisdiction. The difficulties the Commons experienced in proving its case to be a court of record (see p 161) an issue never determined at law were connected with these problems. Yet whatever the legal or constitutional niceties, in practice the House on many occasions in the sixteenth and seventeenth centuries exercised its power to impose fines (see p 161) and imprison offenders. These offenders might include Members of the House itself or non-members, the latter comprising sheriffs, magistrates and even judges of the superior courts."

Almost to ensure that there be not any doubts entertained in this behalf in any quarter, while asserting its right to commit offenders on the same terms as the House of Lords, it was said in the House of Commons in 1593 as under:-
"This court for its dignity and highness hath privilege, as all other courts have. And, as it is above all other courts, so it hath privilege above all other courts; and as it hath privilege and jurisdiction too, so hath it also Coercion and Compulsion; otherwise the jurisdiction is nothing in a court, if it hath no Coercion."

The House of Lords would eventually concede this power in favour of House of Commons at the conference between the two Houses as noticed in the case of Ashby vs. White [L.J. (1701-05), 714]. This has ever since been consistently recognized even by the courts of law in England. The origin of this power of commitment for contempt, judicial in its nature, is thus traceable to the conception of Parliament as primarily a court of justice the "High Court of Parliament".In matters concerning import of powers and privileges of the House of Commons unto the legislature in India, while examining the issue, albeit from the limited concern of the availability to State legislature under Article 194(3) of the power of commitment for contempt, this court in the UP Assembly Case had administered a note of caution that must hold good even for purposes at hand. At page 591 of the judgment, it was observed thus:-

"121. In this connection, it is essential to bear in mind the fact that the status, of a superior Court of Record which was accorded to the House of Commons, is based on historical facts to which we have already referred. It is a fact of English history that the Parliament was discharging judicial functions in its early career. It is a fact of both historical and constitutional history in England that the House of Lords still continues to be the highest Court of law in the country. It is a fact of constitutional history even today that both the Houses possess powers of impeachment and attainder. It is obvious, we think, that these historical facts cannot be introduced in India by any legal fiction. Appropriate legislative provisions do occasionally introduce legal fictions, but there is a limit to the power of law to introduce such fictions. Law can introduce fictions as to legal rights and obligations and as to the retrospective operation of provisions made in that behalf, but legal fiction can hardly introduce historical facts from one country to another." (Emphasis supplied)

In the UP Assembly Case, it was settled by this court that a broad claim that all the powers enjoyed by the House of
Commons at the commencement of the Constitution of India vest in an Indian legislature cannot be accepted in its entirety
because there are some powers which cannot obviously be so claimed. In this context, the following observations appearing
at page 448 of the judgment should suffice:-

" .Take the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker "to have at all times the right to petition, counsel, or remonstrate with their Sovereign through their chosen representative and have a favourable construction placed on his words was justly regarded by the Commons as fundamental privilege" [Sir Eskine May's Parliamentary Practice (16th ed.) p.86]. It is hardly necessary to point out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder an impeachments cannot be claimed by the House. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of a parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in cases of doubt [ibid, p. 175]. This privilege again, admittedly, cannot be claimed by the House. Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House."

The historical background of parliamentary privileges in India is to be understood with reference to history of England and the Constitutional history of the Constitution of India.

Indian Constitutional History
The East India Company Act, 1784 formed the basis of the Indian Constitution till 1858. It created Commissioners for the affairs of India to be appointed at home by the King. This was followed by the Charter Act, 1833 that provided for a legislative authority. In this dispensation, the meetings of the Governor-General's Council for law-making were distinguished from the meetings of the Council for discharging other, i.e., executive functions. Macaulay, as Law Member of the Governor General Council, against the backdrop of the insistence by the Executive Councilor of the Governor General's Council that all the drafts of laws should be fully considered by the Executive Council before they were laid before the Legislative council for final passage, in his speech of 13th June, 1835, described the deliberative chamber as the "supreme Legislative Council", and said "when the Parliament gave us the power of legislating it gave us also, by necessary implication, all the powers without which it is impossible to legislate well", referring in this context particularly to power "to correspond directly with the subordinate Governments"; "directly call for information from any public functionary"; and "require the attendance of the military or financial secretary". An expansion of the Legislative Council of India was provided by the Charter Act of 1853, followed by certain further additions by the Acts of 1854 and 1861.

The period 1915-1950 indeed marks a definite advance in the history of the development of parliamentary privilege in India. By the Government of India Act 1915, the entire position of Parliamentary privilege that obtained before that time was consolidated. The Government of India Act, 1915, provided in Section 63 that the Indian Legislature shall consist of the Governor-General and "two chambers, namely, the Council of State and the Legislative Assembly". Section 67 of the Act related to the business and proceedings of the Indian Legislature. Sub-Section (1) enabled provision to be made by rules, inter alia, "for regulating the course of business and the preservation of order in the chambers of the Indian legislature"; "as to the persons to preside at the meetings of the Legislative Assembly in the absence of the president and the deputy president"; for "quorum"; and "for prohibiting or regulating the asking of questions on, and the discussion of any subject specified in the rules". Sub-Section (6) allowed "Standing orders" to be made providing for the conduct of business and the procedure, to be followed in either chamber of the Indian legislature in so far as these matters are not provided for by rules made under this Act. Sub-Section (7) declared "Subject to the rules and standing orders affecting the chamber" that there shall be "freedom of speech in both chambers of the Indian legislature"; and that no person shall "be liable to any proceedings in any court by reason of his speech or vote in either chamber, or by reason of anything contained in any official report of the proceedings of either chamber". The Government of India Act 1919 brought about material changes in the Government of India Act 1915. The legislature now ceased to be part of the Executive and stood on its own. It was no longer an expanded Governor-General's Council with additional members. The Governor General and the Executive Councilor ceased to be ex-officio members of the
Legislative Council. The bicameral Indian Legislature would consist of both nominated and elected members.Section 65 of the Government of India Act 1915, as amended in 1919, provide for the powers of the Indian Legislature, subject to the specific prohibition that it shall not have the powers, inter alia, to make laws "unless expressly so authorized by Act of Parliament (of United Kingdom)", amongst others, "affecting the authority of Parliament, or any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland whereon may depend in any degree the allegiance of any persons to the Crown of the United Kingdom, or affecting the sovereignty or domination of the Crown over any part of British India". The powers of legislation of the local legislatures were defined more or less similarly in Section 80 A.

'Parliamentary Privilege in India' by Prititosh Roy (1991), in Chapter-4, titled 'Historical Background of Parliamentary Privilege in India (1915-1950)' mentions, at page 53, about the Report dated 3rd December 1924 of the Reforms Inquiry Committee under the chairmanship of Sir Alexander Muddiman (the Home Member), which included as members Sir Tej Bahadur Sapru and Mr. Jinnah, which had examined the issue of powers of the Indian Legislature and gave vent to the hope and aspiration of bringing legislatures in India "at par with the House of Commons" and that "eventually no doubt similar provision will be made in the Constitution of British India". On the basis of the Report, the Indian Legislature passed the Legislative Members Exemption Act, 1925 (Act XXIII of 1925) which granted two new parliamentary privileges; viz. the privilege of exemption of the legislator from jury service and the privilege of freedom from arrest. Theses new privileges would be reflected in the Code of Criminal procedure 1898 by incorporation in Section 323 and insertion of Section 135A respectively.

Prititosh Roy mentions in "Parliamentary Privilege in India" [p-55], the Legislative Assembly created under Government of India Act, 1919 witnessed a number of instances wherein the privileges of a legislative body were asserted. These include the adjournment motion moved on 21st January 1927 by Pt. Motilal Nehru to discuss the conduct of the Government in detaining Shri Satyendra Chandra Mitra, an elected member of the House, on the ground it tantamounts to a breach of the Privileges of the House and the adjournment motion in the Legislative Assembly moved by Shri Gaya Prasad Singh on 4th September, 1928 against the Editor of the Times of India having made an attack on the President of the House, though disallowed but with the President having held that it is the inherent right of any assembly to defend itself against outside attacks and it is perfectly open in a proper cause for the House to table a substantive motion and pass a vote of censure or condemnation on the attacker.

Prititosh Roy also mentions at Page 56 an interesting episode involving the Indian Press Act, 1931 that was enacted on 13th February, 1932. In its context, a question arose before the Legislative Assembly under Government of India Act, 1919 regarding breach of the privileges upon a notice of motion having appeared in the Press given by a member. Acknowledging that there was a convention in the House of Commons against release by a member to the Press for publication questions for resolutions before they are admitted by the chair and that breach thereof was treated as a serious breach of the privilege of the House of Commons which had ample powers to deal with the member in question, the President of Indian Legislative Assembly noted that "unfortunately neither this House nor the Spokesmen have such powers" and commended that "this well established convention, which is observed in the House of Commons should also be observed as one of the conventions of this House".

Prititosh Roy refers at Pages 58-59 to Debates of Indian Legislative Assembly [22nd January, 1935, p. 81 ff], which quote yet another incident that needs to be taken note of. Shri N.C. Bardaloi had raised an issue about the conduct of the Government in preventing Mr. Sarat Chandra Bose, an elected Member of the Hous, from attending to his duties as Member and thereby seriously infringing the privileges of the House. Sir N.N. Sircar, the then Law Member of the Government of India replied stating that the House had no power to punish for its breach of privilege.

The Government of India Act, 1935 came into force on 1st April, 1937 and was operative till 14th August, 1947. Sections 28 and 71 of the Government of India Act, 1935 dealt with the subject of Privileges etc. of members of Federal Legislature and Provincial Legislatures respectively. The provision in Sub-Section (1) of Section 71 extended the freedom of speech and immunity to speech or vote even in the Committees of the Legislature and also covering publication under the authority of a Chamber of the Legislature of the House. Sub-Section (1) of Section 71, inter alia, declared that "Subject to the provisions of this Act and to rules and standing orders regulating the procedure of the Legislature there shall be freedom of speech in every Provincial Legislature" and that every member shall be entitled to immunity from "any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof".

Sub-Section (2) of Section 71 of the Government of India Act, 1935, for the first time, empowered the Provincial Legislature to pass an Act to define the other privileges of the members and, pending such legislation, the pre-existing privileges were confirmed. Some of the Provincial Legislatures did legislate or attempt to legislate on this subject. Sub-Section (2) of Section 71 was on lines similar to present Article 194 (3). It read as follows:-
"71.(2) In other respects the privileges of members of a Chamber of a Provincial legislature shall be such as may from time to time be defined by Act of the Provincial Legislature, and, until so defined, shall be such as were immediately before the commencement of this Part of this Act enjoyed by members of the Legislative Council of the Province."

Sub-Section (3) of Section 71 watered down the powers and privileges of Indian Legislatures under Government of India Act, 1935. It ran as follows:-
"71.(3) Nothing in any existing Indian Law, and, notwithstanding anything in the foregoing provisions of this Section, nothing in this Act, shall be construed as conferring, or empowering any Legislature to confer, on a chamber thereof or on both Chambers sitting together or any Committee or officer of the Legislature, the status of a court, or any punitive or disciplinary powers other than the power to remove or exclude persons infringing the rules or standing orders, or otherwise behaving in a disorderly manner."

Clearly, the intendment was to restrict the powers and privileges of Indian Legislatures to remedial action for unobstructed functioning, severely restricting, or rather forbidding, the exercise of punitive powers by a House of Legislature.

Similar provisions, mutatis mutandis, were made for the Central Legislature, called the Federal Legislature, under Section 28 which, however, never came into force since Part II of the Act of 1935 concerning the Federation of India never became operative. Sub-Section (1) of Section 28 of the Government of India Act, 1935, inter alia, declared that there shall be "freedom of speech" in the Federal Legislature "Subject to the provisions of this Act and to the rules and standing orders regulating the procedure", and that "no member of the legislature shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any Committee thereof".

Sub-Section (2) of Section 28 of the Government of India Act, 1935, for the first time, empowered the Federal Legislature to pass an Act to define the other privileges of the members and again, pending such legislation, the pre-existing privileges were confirmed. Its language has a resonance of what is employed in present Article 105 (3). It stated as follows:-
"28. (2). In other respects, the privileges of members of the Chambers shall be such as may from time to time be defined by Act of the Federal Legislature, and, until so defined, shall be such as were immediately before the establishment of the Federation enjoyed by members of the Indian legislature."

Sub-Section (3) of Section 28 was designed to restrict the powers and privileges of Indian Federal Legislature to remedial action for unobstructed functioning. While preventing the legislature from exercising the powers of the Court for any punitive or disciplinary powers, it allowed the limited jurisdiction to remove or exclude the person infringing the rules or standing orders or otherwise behaving in a disorderly manner. It read thus:-
"28. (3). Nothing in any existing Indian Act, and, notwithstanding anything in the foregoing provisions of this section, nothing in this act, shall be construed as conferring, or empowering the Federal legislature to confer, on either Chamber or on both Chambers sitting together, or on any committee or officer of the Legislature, the status of the Court, or any punitive or disciplinary powers other than a power to remove or exclude persons infringing the rules or standing orders, or otherwise behaving in a disorderly manner."

It is also necessary to take note of sub-Section (4) of section 28 of Government of India Act, 1935 since it made the intention clear that for punitive action in certain matters the Legislature would have to go before a court. It provided as follows:-
"28. (3). Provision may be made by an Act of the Federal Legislature for the punishment, on conviction before a court, of persons who refuse to give evidence or produce documents before a committee of a Chamber when duly required by the Chairman of the Committee to do so.

Provided that any such Act shall have effect subject to such rules for regulating the attendance before such committees of persons who are, or have been, in the service of the Crown in India, and safeguarding confidential matter from disclosure as may be made by the Governor General exercising his individual judgment."

Prititosh Roy at Page 71 mentions that the above mentioned provisions were found by the Legislatures to be ineffective and inadequate for upholding the dignity and prestige of the legislature in India and for safeguarding the right and privileges of Members and officers thereof. This became subject matter of grievance conveyed in a Memorandum by the President of the Indian Legislative Assembly to the Reforms Commissioner of the Government of India on 29th January, 1938, raising a demand that the Central as well as provincial legislature in India should have among other privileges also "the power to proceed in contempt like the High Court and inflict punishment on any person who violates the privileges of the House and of the members thereof, or tries to bring the House or the President or the Speaker into contempt " and for a request to be made to the Government of India to take immediate steps to get Sections 28 and 71 of the Government of India Act, 1935 amended so as to secure for the Central and Provincial Legislatures and the officers and members thereof "all the powers and privileges which are held and enjoyed by the Speaker and members of the British House of Commons".

The Indian Independence Act 1947, which brought freedom from alien rule, made India a full fledged Dominion of the Commonwealth of Nations. The Act conferred, through Section 6(2), sovereign legislative power on the Indian dominion abrogating the Imperial doctrine of Repugnancy in the following terms:-

"No law and no provision of any law made by the Legislature of either of the new Dominions (India and Pakistan) shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of this or any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act."

The Governor General of India issued an Adaptation Order by which, amongst others, the provisions of Section 28 of the Government of India Act, 1935, excepting the sub-Sections (3) and (4), were brought into force for the first time for purposes of dominion legislature,. As a result, aside from the "freedom of speech in the legislature", the law provided that "in other respects the privileges of the members of the domain legislature" shall be such as may from time to time be defined by dominion legislature and, until so defined, should be such as were immediately before the establishment of the dominion enjoyed by the members of the Indian legislature The omission of sub-Section (3) and sub-Section (4) of Section 28 indicated that the restrictions on the exercise of punitive and disciplinary powers by the legislature were being removed. As a result of the omission of sub-Sections (3) & (4) of Section 28 by the Order, the Central legislature became entitled to pass any Act on the subject of privileges under sub-Section (2) without any restriction and assume punitive and disciplinary powers similar to those invested in the House of Commons in England. But then, the Central Legislature did not pass any law on privileges in exercise of the enabling powers under Section 28 (2) of Government of India Act, 1935, as adapted after Independence.

Dr. Ambedker, the Chairman of the Drafting Committee of the Constitution, while mooting for the Parliamentary system similar to the one obtaining in England noted, in the course of debates in the Constituent Assembly, that in the latter jurisdiction, the parliamentary system relies on the daily assessment of responsibility of the executive by members of parliament, through questions, resolutions, no-confidence motions and debates and periodic assessment done by the electorate at the time of election; unlike the one in the United States of America a system far more effective than the periodic assessment and far more necessary in a country like India. India thus adopted parliamentary Constitutional traditions.

The concept of parliamentary privileges in India in its modern form is indeed one of graft, imported from England. The House of Commons having been accepted by the Constituent Assembly as the model of the legislature, the privileges of that House were transplanted into the draft Constitution through Articles 105 and 194. Article 85 of the Draft Constitution, which corresponds to present Article 105, contained the following provision with respect to parliamentary privileges:-
"85.(1) Subject to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

(2) No member of Parliament shall