The Supreme Court's judgment upholding the right of Parliament to expel members found guilty of misconduct is notable for the constitutional balance it strikes, combining judicial restraint and respect for the powers of the legislative body even while according with public sentiment. After the tendency of some Members of Parliament to accept money for asking questions in the house was exposed by the broadcast media in a sting operation, the Speaker and Parliament acted with commendable dispatch in instituting an enquiry and hearing and, on finding them guilty, expelling them. The swift action helped to counter public distrust and restore some measure of credibility of representative institutions. The expulsions were challenged mainly on the grounds that Parliament did not have the power to expel members and that the procedure adopted for the enquiry was hurried and flawed. In the event, the court was categorical that Parliament does have the power of expulsion and that there was nothing wrong in the procedure as well. If the judgment had gone the other way, a legal black hole would have been created with no way of dealing with members taking bribes for their actions in Parliament. According to the current legal position as laid down by the Supreme Court in the Jharkhand Mukti Morcha MPs bribery case, the courts cannot enquire into any act in respect of anything said or done in Parliament; and hence MPs cannot be prosecuted even if they were paid money for voting in a particular way. The MPs in the cash-for-questions scam have got off relatively lightly, being expelled from Parliament with a right to contest again rather than being prosecuted under the penal law and punished. Still, the message from the expulsions and its affirmation by the court is unquestionably salutary.
More than the impact on Members of Parliament and on public perception, it is the institutional balance the judgment strikes that would appear to be of far reaching significance. For too long have the legislature, the executive, and the judiciary been jostling for constitutional space, with the judiciary by virtue of its power to interpret the Constitution often gaining the upper hand. In striking contrast, this judgment displays deference to Parliament on issues within its competence even while holding its ground on the broad question of judicial review. Thus, while ruling that Parliament's exercise of its privilege in expelling its members for misconduct is subject to judicial review, it limits the review to such grounds as "lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of the constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity." On the other hand, having regard to the "majesty and grandeur of its task," the courts would start with the presumption that the powers of Parliament would have been regularly and reasonably exercised. Again, the court "will not presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters" and if someone alleges mala fides or bias, the onus of proving the allegation will be very heavy. In this specific case, the court dismissed the suggestion that the Speaker had prejudged the issue when he said in his address to Parliament before it expelled the members: "if anybody is guilty, he should be punished. Nobody would be spared." In addition, the court has also laid down that the expediency or necessity for exercising a particular power or determining what is the right and proportional punishment would be for Parliament rather than for the court to decide.
The power of Parliament to expel its members for misconduct was traced to the powers and privileges of the British House of Commons that have been conferred on it by the Constitution. The House of Commons has expelled members on such grounds as bribery, corruption, falsification of accounts, and running away from the law; and its power has never been in doubt. Such a power, the court felt, formed part of the powers and privileges of the Indian Parliament to discipline its members and protect its own integrity, notwithstanding the fact that the Constitution contains other specific provisions on membership and disqualification. The court also deferred to the procedure followed by the Lok Sabha in constituting a special enquiry committee to investigate the conduct of the members and by the Rajya Sabha in referring the conduct of two members to the Ethics Committee. The members were offered the opportunity to view the unedited video footage of the sting operation and offer their explanation, but most of them stayed away. Merely because the enquiry was completed fast, it could not be regarded as flawed.
At the same time, the court has taken care to emphasise that the privileges of Parliament are not absolute or untrammelled. On the still unresolved question of how a conflict between parliamentary privilege and the fundamental rights of non-members is to be handled, the judgment on the expulsion of MPs contains some useful discussion that could open up the way for resolution. The current position appears to be that the right to freedom of speech must yield to the specific power of Parliament to control its proceedings and what should be published, but not the right to life or liberty under Article 21. The latest decision holds that the courts can scrutinise "the validity of the action of the legislature trespassing on the fundamental rights of citizens." More specifically, it would be the duty of the court to examine any instance of infringement of the fundamental rights under Article 20 or 21 of any member or non-member. The restraints on freedom of speech in relation to legislatures as well as courts are a matter of continuing concern, particularly in the context of the functioning of a vigorous democracy; they need to be addressed through a law or a judicial decision. Meanwhile, both the judiciary and the legislatures would do well to exercise their contempt powers only when absolutely needed for their functioning.