Guest Post: Reconsidering P. V. Narasimha Rao v. State – Bribery, parliamentary votes, and parliamentary immunity

[This is a guest post by Karan Kamath.]


Introduction

In 2014, the moot question in Sita Soren v. Union of India before the Jharkhand High Court was whether a legislator who accepts a bribe to vote in a certain manner and does not vote in that manner, enjoys parliamentary immunity from prosecution? The legislator in question allegedly accepted a bribe for one candidate to the Rajya Sabha, but eventually voted for some other candidate. The legislator relied on the Supreme Court’s decision in P. V. Narasimha Rao v. State (“Narasimha Rao”), wherein several parliamentarians were held immune from prosecution for bribery, as the alleged kickbacks were ‘in respect of’ a parliamentary vote, which are guarded by parliamentary immunity. However, in case of one of the accused, the Court denied immunity as he had not cast a vote, and made himself ineligible for parliamentary immunity, by delinking the relationship between his vote and alleged acceptance of bribe. The legislator contended that as long as there was a vote cast, the immunity in Narasimha Rao would be applicable.

The Jharkhand High Court distinguished Narasimha Rao from the facts at hand, as it involved two circumstances: firstly, bribery ‘in respect of’ a vote; and secondly, bribe and no corresponding vote. In Sita Soren, the legislator had allegedly accepted the bribe, but cast the ballot for a different candidate. In the High Court’s opinion, this was similar to the latter circumstance in Narasimha Rao: absence of any relationship between the vote and the bribe would make the legislator disentitled from invoking parliamentary immunity.

The High Court judgment was soon challenged before the Supreme Court in a special leave petition, and placed before a three-judge bench. On March 7, 2019, this bench referred these questions of ‘substantial public importance’ with ‘wide ramifications’ to a five-judge Constitutional bench, congruent in strength to Narasimha Rao. As of now, the issues remain unanswered before this Constitutional bench.

P. V. Narasimha Rao v. State: Parliamentary immunity from bribery charges?

Article 105(2) of the Constitution reads:

“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…”

A mutatis mutandis provision for State Legislatures is Article 194(2). As the provisions are identical in wording, this article only refers to Article 105(2), but all such references are equally applicable to 194(2).

The provisions came under scrutiny in Tej Kiran Jain v. N. Sanjiva Reddy (“Tej Kiran”), wherein the Supreme Court laid down that no defamation proceedings could arise from speeches made by parliamentarians. It was held that the immunity under Article 105(2) is applicable to ‘anything’ said or ‘any’ vote, and therefore entitled to expansive interpretation with the sole limitation that such speech or vote be in the course of parliamentary business. Once the speech or the vote was established as parliamentary business, no liability could arise thereon.

This interpretation was expanded in the context of bribes for votes in Narasimha Rao. The Court reasoned that the term ‘in respect of’ occurring in the Article accorded parliamentary immunity against any liabilities “that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament.

Once such a functional connection was established, immunity prevailed. For those accused who voted, the exemption existed. However, for the parliamentarian who failed to vote, the alleged bribe was not ‘in respect of’ any vote or speech, disqualifying him from claiming parliamentary immunity.

The correctness of Narasimha Rao has been doubted; however, in 2007, a five-judge bench in Raja Ram Pal v. Speaker of the Lok Sabha reiterated the decision in Narasimha Rao, while holding that such immunity was restricted only to bribery ‘in relation to’ any vote, not other acts such as raising questions or allocating local area development funds.

Nonetheless, the dictum in Narasimha Rao remains binding authority on parliamentary immunity vis-à-vis bribery charges. Even if the five-judge bench seeks reconsideration of its ratio in Sita Soren, any law declared by a prior bench is binding on any subsequent bench of co-equal strength. According to the ruling in Joseph Shine v. Union of India, a latter bench of coordinate strength cannot overrule a former. Therefore, the bench in Sita Soren can, apart from answering the sole question raised before it, refer the judgment in Narasimha Rao to a higher bench for reconsideration by questioning its correctness.

Public servants and official duties

Similar to parliamentary immunity enjoyed by legislators, executive public servants are granted immunity from criminal liability for acts done during performance of official duties. The interpretative principle in such cases was elucidated by the Supreme Court in B. Saha v. M. S. Kochar (“Saha”): immunities cannot be interpreted so broadly that they become a carte blanche for any and every action of officials, nor can they be interpreted so narrowly that the enabling provision becomes ‘sterile’. The Court proposed a bespoke approach that requires every factual scenario to be considered separately from others.

The act of taking a bribe has been categorically held outside any such immunity. While determining the extent to which public servants performing official acts are exempt from criminal liability, the Federal Court in Hori Ram Singh v. R held that acts like bribery, which are not possible without holding some public office, cannot be considered as official acts, due to their very nature. This was subsequently confirmed by the Privy Council in Gill v. R.

After enactment of the Constitution, the Supreme Court reiterated the same in K. Satwant Singh v. State of Punjab (“Satwant Singh”), observing that bribery by its “very nature cannot be regarded as having been committed by public servants, while acting or purporting to act in the discharge of their official duty.” Recently, in Om Prakash v. State of Jharkhand, the Court reaffirmed Satwant Singh noting that immunity from prosecution was ‘not merely a cloak’ for committing objectionable acts.

Reading this case law with the interpretative principle in Saha, doubts about the rationale of Narasimha Rao can be substantiated. The ‘vote’ in Article 105(2) is bona fide vote to be cast without any apprehension of liability to arise, assuring freedom of thought for a legislator. A ballot casted in exchange for bribery can never be said to be included in the language. However, this argument would require another consideration: the object of parliamentary immunity and whether its original intent was to protect any and all acts of legislators, contrary to the middle-of-the-road approach like Saha.

Objective of parliamentary immunity

The purpose of Article 105(2) as iterated by Tej Kiran is to ensure that people’s representatives enjoy complete freedom and that they perform their functions without any apprehension of legal liability. The minority judgment in Narasimha Rao opined that this objective was not furthered by granting impunity to parliamentarians taking bribes for votes. This view is more in line with the legal developments in several foreign jurisdictions.

For example, in R. v. Chaytor, the United Kingdom Supreme Court was dealing with false accounting by some members of the House of Lords. It reiterated comments of 1976 Royal Commission on Standards of Conduct in Public Life, that “to say that immunity from criminal proceedings against anyone who tries to bribe a Member of Parliament and any Member of Parliament who accepts the bribe, stems from the Bill of Rights is possibly a serious mistake.”

In the landmark United States v. Brewster (“Brewster”), the United States Supreme Court noted in its majority opinion:

As we noted at the outset, the purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process. But financial abuses by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the public to honest representation. Depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence.

The Privy Council, in an appeal from Ceylon in Attorney General of Ceylon v. Michael de Livera (“Livera”) took an approach similar to that in Satwant Singh, Hori Ram Singh, and Gill holding that “it is important to see that those [parliamentary] privileges do not cover activities that are not squarely within a member’s true function.

Although the Privy Council made no direct reference to the aforementioned Indian cases, that analogy was indeed drawn by the Privy Council in Attorney General for Hong Kong v. Ip Chiu, which referred to Livera and Gill to conclude similarly.

At the cost of repetition, it must be said that the principal objective of parliamentary immunity is to ensure that there is an atmosphere without fear for a people’s representative while he or she conducts parliamentary business. It can be reasonably stated that this purpose is not furthered by granting parliamentarians impunity from bribery prosecutions. Nonetheless, the majority in Narasimha Rao and the minority in Brewster have taken a contrary stance, holding that not enabling immunity in such cases leads to violation of legislative freedom and the right of people to be represented by independent and integral representatives.

The cautionary view

In Brewster, Justice Brennan, joined by Justice Douglas dissented to hold that by prosecution for bribery in such cases calls into question ‘the very motives’ behind ‘legislative acts’, that are precisely to be protected by parliamentary immunity. The immunity from prosecution granted to parliamentarians exists for a public good, that people deserve representatives who can perform their functions without any apprehension of liability, as reiterated in several aforementioned cases. Justice Brennan argued that this immunity protects any inquiry into votes or the motives behind them. He quoted Justice Frankfurter in Tenney v. Brandhove (“Tenney”):

In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses.

 

According to this view, although bribery as a dishonest motive can be attributed to parliamentarians, the appropriate remedy for the same is self-regulation by the legislature (censure or expelling), and by the electorate (recall or voting out). Justice Brennan concluded that parliamentary immunity did not ‘immunize corrupt’ legislators. Instead, it reserved disciplinary powers to the legislature. The judiciary assuming those powers itself, and granting authorisation to the executive to conduct investigation and prosecution, would not be appropriate.

Justice G. N. Ray, who provided the determinative vote in Narasimha Rao, used similar reasoning: an effective parliamentary democracy, in his opinion, required that parliamentarians cast votes without any fear. Similarly, Justice S. P. Bharucha, for himself and Justice Rajendra Babu, quoted the aforesaid paragraph from Tenney to substantiate their determination.

This view of parliamentary immunity does not condone bribery or deem it as unworthy of parliamentary representatives, but rather argues that it is the legislature or the voters that pass a judgment on a representative accused of bribery rather than the courts. Enabling prosecution of parliamentary representatives for acts in relation of their votes may lead to intrusion by the executive into the representatives’ parliamentary business for criminal investigation. This investigation may very well be extended to any and all statements made or votes cast in the legislature, by merely accusing an extension of criminal and corrupt motivations. This is adequate to threaten the atmosphere of freedom that is to be ensured through parliamentary immunity.

Conclusion

The majority judgment in Narasimha Rao can be readily criticised for its absurd result of wholesale impunity for allegedly corrupt parliamentarians. It is indeed tempting to overrule Narasimha Rao¸ an opportunity for which will be in front of the Constitution bench in Sita Soren. Alternative, such overruling entails conferring power on the executive to investigate, arrest, and prosecute legislators that are responsible to hold the executive accountable. Therefore, the cautionary approach in Narasimha Rao and the minority opinion of Brewster must be given a thorough consideration, before that temptation to overrule is satisfied.

Coronavirus and the Constitution – XX: Parliamentary Accountability

We have already discussed on this blog how the government’s measures to contain the coronavirus outbreak at both the state and union levels have bypassed legislative accountability (here). In this post, I want to expand the discussion on legislative accountability by exploring three points: (1) the legislature’s role in placing temporal limits on the executive’s emergency powers; (2) how involving the legislature incentivises policy scrutiny and increases transparency; and (3) understanding whether Indian legislatures could have continued to function. I use the term ‘parliamentary’ accountability, but the argument is equally applicable to legislative assemblies in the states. The goal of this discussion is not to suggest that parliament continuing to function would have served as a silver bullet to bad policy or governmental overreach. Rather, the idea is to explore how the democratic structures of our Constitution can act as a restraint on government power – making it imperative that we demand more from our elected officials.

The legal sources of the government’s measures are the Disaster Management Act 2005 (“DMA”) and the Epidemic Disease Act 1897 (“EDA”). Under these two laws, the government has issued several ‘guidelines’ that form the legal framework of India’s ongoing ‘lockdown’. We often think that legislatures, with their lengthy debates, committee procedures, and voting are cumbersome bodies not suited to the decisive action required in an emergency. The truth of this is debatable. For example, the numerous clarifications and addendums to the Ministry of Home Affairs’ circulars demonstrate the value of debate and committee scrutiny. However, the choice of the DMA and the EDA become especially significant when we consider the two courses of action the Constitution itself provides for dealing with extreme situations calling for immediate action: (1) declare a constitutional emergency; or (2) pass an ordinance. Both a constitutional emergency and the passing an ordinance require that the legislature (at some future point) ratify the government’s actions. Therefore, we can conclude that even the most extreme situations contemplated by the Constitution involve some legislative oversight. The DMA and the EDA however bypass the legislative branch altogether resulting in a “rule by executive decree”. This has some important consequences.

The temporary nature of emergencies

Emergency powers are fundamentally temporary. The term ‘derogation’ is often used to explain the relaxing of some legal requirements during periods of crisis – but such relaxations are essential exceptions to the ordinary rule of law and all derogations have a recognised beginning and most importantly an end. When the crisis subsides, the political and legal system must return to normal. When a constitutional emergency is proclaimed under Article 352 of the Constitution, the emergency automatically ceases after one month if not placed before Parliament and (if approved) again automatically ceases after six months unless re-approved by Parliament. Even ordinary legislation granting wide emergency powers such as the U.S. PATRIOT Act (enacted in 2001 to fight terrorism post the 11 September attacks) contained a ‘sunset’ clause providing that large parts of the Act would cease to operate in 2005 unless renewed. An even more poignant example is the U.K.’s Coronavirus Act. Before it was passed, the (then) Coronavirus Bill granted the government emergency powers for two years. After the opposition objected, the government agreed to amend the Bill – providing that the House of Commons must debate and renew emergency powers granted by the Bill every six months. In evaluating the Coronavirus Bill, the House of Lords’ Constitution Committee noted: “Two years would have been too long for these powers to have operated without reapproval by Parliament and we welcome the cross-party agreement to reduce the period to six months” (here). The rationale behind granting the executive sweeping emergency powers is therefore always contingent on (1) the existence of a crisis; and (2) a return to normalcy at the earliest possible instance.

The following questions now become relevant. Who declares the start of an emergency? How long will the emergency last? Does it need to be renewed? Who is responsible for its renewal? Can the legality of the declaration be challenged in a court?

Precisely because an emergency vests significant powers in the executive, it makes sense that another body should be responsible for the declaration of an emergency. Otherwise what stops the executive from invoking an emergency in manner that is at best frivolous, and at worst self-serving. For example, a government could declare an emergency and use its emergency powers to silence political dissidents. In the U.S. even though the executive is tasked with all operational aspects of fighting a war, the executive cannot take any action unless the legislature (Congress) first passes a declaration of war. The U.K.’s unwritten constitution contains no notion of emergency powers and the executive is entirely reliant on the legislature first passing a legislation enabling the executive to exercise any additional powers. The same principle applies to renewals, it makes sense that a body other than the executive is responsible for renewing the executive’s emergency powers. Requiring another body to determine whether a situation is truly exigent and how long it will likely last for is an essential check against the abuse of emergency powers by the executive. This is a significantly stronger check than having courts adjudicate on the legality of the emergency proclamation after it is made as the damage may already be done by the time the court delivers a verdict (especially at the pace the Indian Supreme Court currently hears politically sensitive cases).

The Indian Constitution does envision Parliament playing a crucial role in the declaration of constitutional emergencies by requiring that all emergency proclamations be placed before Parliament within one month. Admittedly Parliament’s record of acting as a check on the executive with respect to emergency proclamations is a poor one – in July 1974 Parliament ratified the Indira Gandhi government’s emergency proclamation leading to three years of systemic governmental overreach. One may assume given India’s model of parliamentary democracy (where the executive’s party commands a majority in the legislature), legislative ratification is a forgone conclusion. While the individual judgement of parliamentarians has been severely curtailed by the anti-defection law, there still exists the chance (especially in coalition governments) that the government will have to work harder to appease the various factions of its own support base. Moreover, having even a token debate in parliament is a significant improvement on the current situation.

It is important to understand that the DMA requires no formal declaration of emergency (even under the Act’s own framework). Therefore, the ground reality is that the executive has been granted sweeping emergency powers, the courts are virtually at a standstill and public gathers have been outlawed – all without an emergency being ‘declared’ or any justification for when exactly the coronavirus became an emergency or any indication of when the emergency will end. (The use of the term ‘notified disaster’ was used widely in the media but has no relation to the beginning or ending of the government’s emergency powers and only concerns the use of disaster relief funds.) It is particularly important to recognise that the coronavirus outbreak may be with us for a while. The nationwide ‘lockdown’ has already been extended twice. Much like the ‘war on terror’, what seemed necessary as an immediate response can perpetuate a permanent derogation from the rule of law. In a Parliament approved emergency, ratification by Parliament may have been (and with good reason) a foregone conclusion in March, but three, six or nine months later the government may have faced some pressure to justify a renewal of its emergency powers. Under the DMA however, they face no such pressure to justify a continued resort to emergency powers. Therefore, it is crucial to create temporal boundaries on the invocation of emergency powers and it is submitted that ratification by parliament is one method to do so.

Incentivising parliamentary scrutiny

The ratification of emergency proclamations and ordinances by Members of Parliament creates a powerful incentive for them to scrutinise government action and can require the government to moderate its position. During the coronavirus outbreak Italy used ‘Decree-Laws’ – a decree issued by the government which must be placed before the Italian Parliament within sixty days (here). Similarly, in India, an ordinance cannot be enacted unless Parliament is not in session and must be placed before Parliament upon its reassembly. The ordinance expires unless expressly passed as a piece of legislation by Parliament within six weeks of Parliament reassembling. What this means is that parliamentarians are on the hook for the legal content of these measures. While this may be less of an incentive for members of the ruling party, it creates an incentive for members of the opposition to scrutinise the legislation. Parliamentarians are held electorally accountable for their votes for or against a legislation and draconian measures by a government are unlikely to pass without some form of debate and scrutiny when brought before Parliament. For example, recently the opposition forced multiple adjournments in the Lok Sabha until the government agreed to discuss the communal violence in Delhi (here).

This brings us neatly to the point of parliamentary questions and debate – where members of the opposition have unfettered access to government ministers. Although the actual mechanisms of questions and the debate (or ‘zero-hour’) in Parliament are worth an independent exposition a few key points may be made here. The first is the nature of the threat we are currently facing. Unlike a war with another nation or the fight against ‘terrorism’ where increased transparency may hamper the government’s efforts to defeat the threat – in a public health crisis more transparency is always better. The government should disclose the scientific data on which it bases its decisions. This will not hamper the fight against the coronavirus but will expose bad decision making. Second, unlike questions asked in a newsroom or addressed on social media, questions asked in Parliament form part of the official record of the House and can be used to hold ministers accountable (here). Third, unlike the news media, Members of the legislature cannot be silenced by the courts (see Articles 105 and 194 of the Constitution under which Members enjoy legislative privileges). The Supreme Court’s recent efforts to silence ‘fake news’ and instead mandate reliance on information produced by the government and the statements of the Solicitor General of India make this particularly relevant. Lastly, parliamentary proceedings are broadcast live on national television and on the internet.

There is a deeper point to be made here. Government transparency, and ministerial accountability is fundamentally tied to the broader question of electoral accountability. During proceedings in parliament, it is government ministers who answer questions. This allows voters to evaluate the performance of the government first-hand in an unfiltered manner. To date, a Joint Secretary from the Ministry of Health has given almost all the coronavirus press briefings. The Joint Secretary is an unelected official and making such an official the face of the crisis disassociates ministerial responsibility from the actions of the government in combatting the crisis. Even in the U.S. where the President is not politically accountable to the legislature (outside the extreme case of impeachment), as the head of the executive the President has continued to deliver daily press conferences and answer questions – in stark contrast to the head of the executive in India. Neither the Health Minister not the Prime Minister is legally obligated to give press briefings, but their refusal to do so makes Parliament one of the last forums where the government can be asked hard questions.

Could Parliament have continued to function?

This post would not be complete without addressing the elephant in the room. On 23 March 2020 Parliament was adjourned over fears that the gathering of Members would act as a vector for transmission. Two questions must be answered: (1) can Parliament legally meet outside its official seat; and (2) what the alternative options that Parliament can adopt are. Article 85 of the Constitution permits the President to summon Parliament “at such time and place as he thinks fit” and Rule 11 of the ‘Rules of Procedure and Conduct of Business in the Lok Sabha’ states that “A sitting of the House is duly constituted when it is presided over by the Speaker or any other member competent to preside over a sitting of the House under the Constitution or these rules.” (Rule 10 of the Rajya Sabha rules contains an analogous provision.) Therefore, the short answer is that the place of meeting does not matter so long the President summons Parliament and the Speaker, or other competent person, presides over Parliament. (Interested readers may refer to Shubhankar Dam’s article on precisely this point. He cites historical instances where the ‘place’ of meeting has been in dispute.)

Therefore theoretically, Parliament can meet at an alternative location that is more conducive to social distancing norms or even potentially online. Some comparative context is useful here. Several countries, Australia, New Zealand and Germany amongst them, have struggled to keep their legislature’s open and have adjourned them during the present outbreak. However, Congress in the U.S. has met several times to pass emergency economic legislation. The House of Commons in the U.K. has met virtually, with Members asking questions from remote locations. Similarly, the Canadian Parliament has managed to meet virtually. Perhaps most tellingly, the Indian Supreme Court and various High Courts have managed to implement protocols to allow virtual hearings for thousands of litigants since the beginning of the ‘lockdown’. There would certainly be some teething troubles, but it would not be beyond the realm of possibility to assume that the Indian Parliament could continue to function during the ‘lockdown’. I will end this discussion with two points. As I noted earlier, Parliament sitting is not a silver bullet to all the country’s ailments – given the legislative frameworks which already exist under the DMA and the EDA and the ever present anti-defection law Parliament’s role would certainly be limited. However, eliminating Parliament from governance during an emergency is neither contemplated by the Constitution nor is should it be condoned by the voters who elected this Parliament. At the very least, the limited benefits of Parliament sitting highlighted here could be secured.

Concluding thoughts

Notions of accountability flowing from a separation of powers model focus on preventing the centralisation of power in one body. For example, the body making the law should be distinct from the body implementing or interpreting the law. However, this model fails to incentivise those in power to listen to citizens. Legislators in the minority can blame those in the majority, the government can blame the judiciary for curbing its measures, and the judiciary can blame an overzealous legislature or the executive (see the eternal dispute over judicial appointments).

Competition for power through democratic structures creates a vital link between citizens and their agents in government. It forces the three wings to look beyond horizontal competition inter-se the executive, the legislature and the judiciary and consider a vertical balance of power where rival power seekers must convince citizens of their ability to effectively govern. This is particularly effective in a plural society such as India where there exists a multiplicity of groups with cross-cutting interests and membership, forcing those in power to cater to a wide range of interests. Parliamentary accountability is one of the best examples of how competition for power can further the interests of citizens. ‘Politicking’ during a crisis may be frowned upon but is also an excellent method to ensure that the citizen’s preferences are accounted for in governance. It forces those in power to accommodate the needs of more diverse interests or risk losing the mandate to govern. A healthy legislative body should ensure this robust competition for power. The strength of the Indian parliament as a deliberative body which can hold the government accountable has been in decline for some time, but the present crisis should not be its death knell.

Guest Post: Parliamentary Privileges and the Transformative Constitution – A Response to Karan Lahiri

(This is a guest post by Goutham Shivashankar.)


This post is a response to Karan Lahiri’s absolutely fascinating post, on the recent decision of the Supreme Court in Kalpana Mehta & Ors. v. Union of India & Ors. Lahiri argues that Chandrachud’s J.’s invocation of the idea of the “Constitution as a transformative document”, was incorrect in the context of legislative privileges. To Lahiri, Article 105 of the Constitution, which provides for powers, privileges and immunities of the Houses of Parliament, is an instance where the Constitution is not “transformative” – it rather creates “explicit continuities” with India’s colonial past. Lahiri then asserts that Article 105 is better viewed as provision that is a “gateway to transformation”, since its wording imbues the Parliament with transformative potential in defining its privileges. Thus, Lahiri’s argument has two components: (i) that the Constitution was not transformative on the issue of legislative privilege but was rather an explicit colonial continuity; and (ii) that Article 105 though not transformative in itself, was pregnant with transformative potential. This post is not very concerned with part (ii) of Lahiri’s argument. It does, however, engage with part (i) seriously. I argue that the Indian Constitution was transformative qua the issue of legislative privilege, in at least one sense of the term, and in exactly the sense that Lahiri asserts it not to be. Moreover, it certainly cannot be regarded as a “colonial continuity”. In fact, Article 105 radically reverses a significant feature of the colonial rule, i.e., the pre-eminence of British Parliament over the colonial legislatures.

Fixing Concepts – “Transformative Constitution” and “Colonial Continuity”

It would help to fix concepts a little here. What do we mean by a “transformative constitution” and “colonial continuity”?

 Transformative Constitution

 As I understand it, there can be at least two conceptions of a “transformative” statute or constitution. In one sense, it could simply mean that the law “stands transformed” by virtue of statute or constitution that is enacted, i.e., a new law is brought into force that represents a radical and clean break from the position of law that preceded it. Or it could mean that the statute or constitution “has a transformative purpose”, i.e., that a change in law is brought about that is purposed to have a transformative impact on its field of action. The first conception focuses on the change in the content of the law itself and asks if the law has transformed beyond recognition. The second conception focuses on whether the change in law (which may or may not in itself be radical) is purposed to transform something else (other than the law) radically.

Differentiating between these two conceptions of a “transformative constitution” has analytical utility. It recognizes the possibility that the parts of the constitution can be transformative in the former sense, i.e., it brings about a radical change in the content of the law, while not necessarily having a “transformative purpose”. Similarly, a transformative purpose could potentially be achieved through minor changes in the law that could not be regarded as transformative of the content of law.

In Kalpana Mehta, Chandrachud J., appears to use the “transformative constitution” in both senses. He states that the constitution’s “vision is about achieving a social transformationthat seeks to place the individual at the forefront of its endeavors” (transformative purpose). This transformative purpose is achieved by transforming the content of law. Thus, he states:

“Crucial to that transformation is the need to reverse the philosophy of the colonial regime, which was founded on the subordination of the individual to the state… … For a colonial regime, individuals were subordinate to the law. Individuals were subject to the authority of the state and their well-being was governed by the acceptance of a destiny wedded to its power. Those assumptions which lay at the foundation of colonial rule have undergone a fundamental transformation for a nation of individuals governed by the Constitution. The Constitution recognises their rights and entitlements. Empowerment of individuals through the enforcement of their rights is the essence of the constitutional purpose.

Thus, as noted by Chandrachud J., the conferment of fundamental rights to individuals was transformative in both senses of the word. It was purposed to achieve social transformation, and was transformative in the content of Indian law, by granting rights to individuals against the state in a radical, new way.

However, a law need not always be transformative in both senses of the term. In some cases, the content of law could stand radically transformed because of a preceding social transformation. Here, the law could stand transformed by a new “constitution”, but not with any transformative purpose. As I will seek to demonstrate here, the Constitution clearly transformed the “content” of the law of legislative privilege in India. Whether this change in the law’s “content” on legislative privilege was purposed to bring about social transformation of another sort, or whether it was occasioned by a preceding/underlying social transformation is less clear.

Colonial Continuity

It would also help to fix the meaning of the term “colonial continuity”. I should note that Chandrachud J. does not use this term, which Lahiri uses in his blog post. However, Lahiri is not clear on what he means by the term, though he indicates that Art. 105, by referring to the British House of Commons “establishes a colonial continuity”. If by this, he merely means that any constitutional provision referring to / establishing linkages with an institution of the erstwhile colonizer establishes a “colonial continuity”, then the concept does not really have much analytical utility. It says nothing about whether there was anything inherently “colonial” about the law on legislative privilege, and whether this “colonial” aspect of the law was “continued” by the Constitution. If, however, Lahiri means “colonial continuity” to refer to the continuation of a fundamental feature of colonial project, then Article 105 does no such thing, and Lahiri is incorrect in stating that it does. In fact, as I see, Article 105 is a radical break from the colonial law on legislative privilege in India, and the constitution fundamentally “transformed” the law in this regard, as I will illustrate below.

Chandrachud J. on legislative privilege

 Chandrachud J. seems to assume in his opinion that the law on parliamentary privileges as enacted by the Constitution was purposed to certain ends of social transformation, i.e., the assertion of rights and access to justice. This is clear when he states:

 

“Hence, in understanding the issues which have arisen before the Court in the present reference, it is well to remind ourselves that since the Constitution is about transformation and its vision is about empowerment, our reading of precepts drawn from a colonial past, including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice.”

He provides little evidence to substantiate any such transformative purpose to Article 105 of the Constitution, and this is rightly pointed out by Lahiri in his post. Thus far, Lahiri’s analysis is excellent. I also have no quarrel with the larger point which Lahiri makes, i.e., that there must be rigour in invoking the notion that the constitution is a “transformative document” when it is sought to be used as an interpretive tool. When invoking the “transformative constitution” as an aid to interpretation, judges must necessarily ask: (i) whether or not that part of the Constitution that they are interpreting was transformative: (ii) in what sense was it transformative, i.e., did it transform the content of pre-existing law? (or) did it have a transformatory purpose?. The “transformative constitution” should not be used as a carte blanche to interpret any and all parts of the Constitution in a free-wheeling liberal way. Indeed, Lahiri’s is an important cautionary note struck at a time when the idea of the “transformative constitution” appears to be gaining substantial recognition. Too often have Indian courts and academics used flowery language to mask flawed logic and lazy reasoning.

Why Article 105 cannot be regarded a “colonial continuity”

After correctly identifying Chandrachud J’s failure to identify or argue for a “transformative purpose” behind Article 105, Lahiri incorrectly goes on to assert that that Article 105 (both as originally enacted and after the 42nd and 44th constitutional amendments) is an instance of explicit “colonial continuity”. He bases his assertion on the fact that Article 105(3) made the privilege rules of Indian Parliament effectively the same as the British House of Commons. This was done by the original constitutional text through explicit reference to the House of Commons, and after the 44th amendment, through a slightly circuitous route. According to Lahiri, this explicit reference to the privileges of the British House of Commons creates an explicit colonial continuity”. I argue that this in incorrect. On the contrary, Article 105 radically reverses a significant feature of the colonial rule, i.e., the pre-eminence of British Parliament over the colonial legislatures.

Lahiri’s analysis is incomplete in one crucial respect. He fails to ask: what were the privileges enjoyed by pre-Constitutional legislative bodies in India? Surely, “continuity” in the context of an Indian parliament would make sense only when viewed with predecessor legislative bodies in India. When thus viewed, the transformative character of Article 105 becomes immediately apparent. It was indeed transformative, as originally enacted. A large part of the analysis that follows borrows heavily from an excellent research paper by P.N.Malhan of the Punjab University, published in 1942 in the Indian Journal of Political Science. The paper provides a very good picture of the privileges enjoyed by pre-constitutional colonial legislatures in India, under both the Government of India Acts 1919 and 1935.[1]

The legislative privileges enjoyed by colonial legislatures in the British Commonwealth were radically different from those enjoyed by British Parliament. Indeed, British Parliament (and its constituent houses) was always regarded as a class apart, which derived its sanction and authority, not just by virtue of its status as a “sovereign legislative body”, but also on account of its status as the “High Court of Parliament”. The privileges of British Parliament rest upon its own law called the “lex et consuetudo Parliamenti” (i.e., the law and custom of Parliament) and upon certain specific statutory grants of privilege. In contrast, colonial legislatures have only very limited powers. As Halsbury puts it:

 

Without express grant, a colonial legislature possesses no power to protect itself against obstruction, interruption, or disturbance of the proceedings by misconduct of any of the members in the course of those proceedings, except such as are necessary to the existence of such a body and the proper exercise of the functions which it is intended to execute. Whatever in a reasonable sense is necessary for those purposes is impliedly granted, whenever any such legislative body is established by competent authority. For those purposes protective and self-defensive powers only and not punitive are necessary. There are Legislative Assemblies in the British Colonies, which have, in the absence of express grant, no power to adjudicate upon, or punish for contempts committed either in their presence or beyond their presence.”[2]

 The position of colonial legislatures in India were no different from other parts of the Commonwealth. In comparison to British Parliament, they possessed woefully restricted privileges. As Malhan put it, the framers of the Government of India Act 1919 “summarily dismissed” the vital problem of privileges of the Legislative Councils, by enacting minimal protections. Despite calls for reform on this front, privileges were not substantially increased in the remaining period of Indian’s colonial history. Incremental increases in privileges were secured by the Legislative Members Exemption Act, 1925. The Government of India 1935 gave a little more importance to the issue, but interestingly, in language strikingly similar to Article 105, established an explicit continuity in privileges of the Chambers of Provincial Legislatures with the privileges that Legislative Councils of the Province used to previously enjoy (note that the continuity is with previous colonial legislatures in India and not British Parliament). Strikingly, it also had transformative potential of a similar nature to Article 105, albeit one that was more limited.[3] Section 71 of the Government of India Act, 1935 provided as follows:

“71.-(1) 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 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, and no person shall be so liable in respect of the publication by or under the authority of a Chamber of such a Legislature of any report, paper, votes or proceedings.

(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.

(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.”

Conclusion

The upshot of the above is this. It could be argued that one of the features of the colonial project was the pre-eminence of British Parliament over colonial legislatures. One manifestation of this pre-eminence was in the special privileges that British Parliament had that colonial legislatures, including colonial legislatures in India, did not. Article 105 of the Constitution represents a radical break from the past, by conferring the same privileges upon Indian Parliament that were enjoyed by the British Parliament at the time the Constitution came into force. The equation of Indian Parliament to British Parliament is to be viewed as a radical act that is a complete break from a colonial past which subordinated Indian Parliament to British Parliament. It can by no means be regarded as an “explicit constitutional continuity” as Lahiri puts it. In addition, I would argue that the Article 105 was indeed “transformative”, just not in the way that Chandrachud J. meant it. It does not seem to have a discernable “transformative purpose” as Lahiri puts it, at least in terms of social transformation. Without doubt, however, it legislates a substantial transformation in the law on legislative privilege in India.


[1] Malhan, P. N. “LEGISLATIVE PRIVILEGES IN INDIA.” The Indian Journal of Political Science, vol. 3, no. 3, 1942, pp. 337–359. JSTOR, JSTOR, http://www.jstor.org/stable/42742679

[2] Halsbury’s Laws of England (1936 Edition), Vol. Parliament, Part VII, Para. 697 (as quoted in Malhan, supra)

[3] The transformative potential in Section 71(2) was limited by Section 71(3). The privileges could be increased through legislation but could not confer upon Chambers of Legislature a power to punish or discipline akin to that enjoyed by a court.

Guest Post: Transformation, Continuities, and Gateways to Transformation: Reflections on the Kalpana Mehta judgment

(In this Guest Post, through an analysis of the Kalpana Mehta judgment, Karan Lahiri argues that the divide between “conservative” and “transformative” Constitutions/constitutional provisions is simplistic, and misses a crucial, third kind of constitutional clause: that which serves as a “gateway to transformation.” This three-pronged typology is truer to the Constitutional text, structure, history, and philosophy.)

In May this year, a Constitution Bench of the Supreme Court pronounced its decision in Kalpana Mehta & Ors. v. Union of India & Ors., where it ruled on a question impacting the horizontal separation of powers between legislature and judiciary: namely the extent to which the Supreme Court could rely upon a Parliamentary Standing Committee Report (“PSC Report”). The Court was, essentially, called upon to identify whether, and at what point, such reliance impinged upon legislative privilege. [A post on this blog has provided some background on the issues involved.]

The Kalpana Mehta Judgment

Two questions had been referred to this bench of five judges by an Order of April 05, 2017: –

“(i) Whether in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, the Court can refer to and place reliance upon the report of the Parliamentary Standing Committee?

(ii) Whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?”

The case involved the licensing and testing of certain vaccines designed to prevent cervical cancer. The Petitioners sought to rely on proceedings before a Parliamentary Standing Committee to establish, among other things, irregularities in clinical trials. The problem before the Court was that if this Report was relied on by one party as evidence of such irregularities, the contents of the Report would become contentious. The other party would dispute them, and the Court would be forced to examine the correctness of the statement made before the Committee as also the correctness of the Report itself. This is a prerogative that the rules of parliamentary privilege reserve for Parliament alone, since such Committees are limbs of Parliament and their Reports constitute advice to the House (as per the Rules of Business). Therefore, reliance by one party would trigger an institutional conflict between legislature and judiciary. This is why the Supreme Court had to clearly define situations where such conflict would not occur, and carve out a set of cases where such reliance on PSC Reports was permissible.

By way of example, let us imagine a situation where a PSC was looking into the felling of trees in Central and South Delhi. A reputed environmentalist deposes before the Committee that 16,000 trees have been cut down illegally. An NGO then files a PIL before the Supreme Court on the strength of this PSC Report, and the statement contained in the Report. The Government appears before the Court and contests the veracity of the statement that 16,000 trees were felled, and produces conflicting evidence that only 420 trees were felled after obtaining all the requisite clearances. This would place the Court in a position where it would be impinging upon the powers of Parliament, because the truth of a statement made before one of its Committees can only be questioned before Parliament itself, with possible consequences (such as proceedings for contempt of the House) following as a result. Similarly, only Parliament can deliberate upon the correctness of the advice provided by a PSC. Drawing a line between the powers of the judiciary and prerogative of Parliament is, therefore, critical, particularly in an age where the Supreme Court is sometimes acting as a fact-finding trial court, arguably going beyond its role and institutional competence as a constitutional court.

In deciding the reference, the Court handed down three plurality opinions – Chief Justice Misra wrote for himself and Justice Khanwilkar; Justice Sikri signed on to Justice Chandrachud’s opinion; and, Justice Ashok Bhushan wrote a separate opinion. As usual, this brings up the question of what the decision ultimately laid down. Based on my reading, the following points emerge: –

  • All five judges agreed that a PSC Report can be used as an external aid to statutory interpretation, to throw light on legislative history, on the policy problem (referred to by lawyers as the “mischief“) sought to be addressed by a statute etc. In other words, it could be used to give context to the interpretation of statute that was deliberated upon before the Committee.
  • The Court also held that judicial notice can be taken of proceedings in Parliament under Section 57(4) of the Indian Evidence Act, and this can serve as proof of the existence of the report, statements made in Parliament, historical facts etc.
  • The CJI and Justice Khanwilkar, on one hand, and Justice Chandrachud and Sikri, on the other, agreed on the point that a PSC Report cannot constitute substantive evidence of underlying facts, as such facts (for instance, facts in respect of the conduct of an individual) would be contentious (triggering the issue of privilege) and, therefore, the Court would have to adjudicate on the basis of other evidence [See Paragraphs 124-127, 138(iii), 138(iv) of the CJI’s opinion; Paragraphs 67, 74, 74(iii) of Justice Chandrachud’s opinion]. On this point, Justice Bhushan was in the minority, as he seemed to hold (at Paragraph 150 of his opinion) that a PSC Report can be one of the pieces of evidence used to prove underlying facts.
  • According to Justice Chandrachud (with Justice Sikri), a Parliamentary Standing Committee Report can be used to hold the State and its agencies accountable, particularly in the Court’s PIL jurisdiction. This is because, according to them, there is a functional complementarity between the Courts and the Committees in this regard, However, they were in the minority on this point, as no other judge seems to have a special carve-out in respect of government accountability. [See Paragraph 65-66 in Justice Chandrachud’s opinion]

As I was involved in the litigation, I will refrain from commenting on the outcome of the case, focusing instead on one specific aspect, namely Justice D.Y. Chandrachud’s vision of a “transformative” Constitution, and how he views the moment of creation of our Constitution as a break with the past. I believe this is particularly significant because he is a member of the Constitution Bench that recently heard the correctness of the 2013 decision in Suresh Kumar Koushal v. Naz Foundation (which had upheld the constitutionality of S. 377 IPC), as also part of another bench deciding whether it is constitutional for women of menstruating age to be banned from entering the Sabarimala temple. One side in both cases would be relying on an interpretation of the Constitution as a transformative document: first, to argue that our Constitution marked a break from Victorian morality that demanded criminalization of homosexuality (replacing it with a constitutional morality of choice where every individual could love without fear of the police State); and also, that it left behind an archaic religious morality that permitted menstruating women to be branded as impure, excluding them from an aspect of society (i.e. worship) based on immutable personal traits in a manner categorically similar to “untouchability” (as argued here on this blog).

Questioning the “Transformative Constitution”

I believe, however, that Justice Chandrachud’s emphasis on transformation, as fascinating as it may be, is actually incorrect in this particular case, because the provisions that fell for consideration in the Kalpana Mehta case explicitly establish continuities with the past. The main provision that the Court was considering is Article 105 of the Constitution, which reads:

“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, votes 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.”

[NOTE: Article 194 is the corresponding provision for State legislatures.]

It would be reasonable to ask why an issue of privilege would arise with respect to a Parliamentary Standing Committee Report, given that nothing in Article 105 seems to explicitly bar judicial scrutiny or consideration of such reports. The answer lies in the continuities explicitly created by Article 105(3), which become apparent when one looks at its drafting history. The following table highlights the amendments that Article 105(3) went through over the years.

Original Provision Text post 42nd Amendment Present version post the 44th Amendment
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members 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 the Constitution. (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 those of that House and of its members and committees immediately before the coming into force of section 21 of the Constitution (42nd Amendment) Act, 1976, and as may be evolved by such House of Parliament from time to time. (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 and of its members and committees as immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.

 

Section 21 of the Constitution (42nd Amendment) Act never came into force, as the Congress Government was replaced the by the Janata Alliance in 1977 before the provisions could be formally notified. Therefore, the original provision continued until 20.06.1979, when the 44th Amendment Act brought into force the present version of Article 105(3). The amendment, however, is nothing more than semantics, merely replacing the reference to the “House of Commons of the Parliament of the United Kingdom” with a reference to the privileges “of the House and of its members and committees as immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978”. As the Indian Parliament had made no law defining parliamentary powers, privileges and immunities as on the date that the 44th Amendment was enacted, the privileges which existed before the coming into force of the 44th Amendment Act were basically those that were created by the original provision, namely the rules applicable in the British House of Commons as on the date of commencement of the Constitution. [Both the table above, and the history of the provision, are from D.D. Basu, Commentary on the Constitution of India, Vol. 4, Pg. 5034 (8th edn., LexisNexis Butterworths Wadhwa)].

I would like to highlight four things, at this point, which become evident on reading the table given above: –

  • First, our privilege rules are the same as those of the British House of Commons.
  • Second, the original Article 105(3) explicitly referred to the British House of Commons.
  • Third, the provision place the onus on future legislatures to transform the rules of privilege and break from the traditions of the House of Commons, a duty that our Parliament has, sadly, ignored.
  • Finally, the 42nd Amendment allowed room for a second avenue for homegrown rules of privilege (other than an explicit law) evolved through Parliamentary practice when it referred to rules “as may be evolved by such House of Parliament from time to time.” This was explicitly eviscerated by the 44th Amendment, once again establishing a continuity, which did not allow for transformation through parliamentary practice.

It is because of these explicit continuities that the questions referred to the Constitution Bench in the Kalpana Mehta case arose in the first place. As is evident from the Order of April 05, 2017, as also the final judgment of the Court, the Respondents, while making their case for exclusion of the Report, referred to precedents from the United Kingdom to formulate the proposition that records of parliamentary proceedings cannot constitute proof of underlying facts, and that records of parliamentary proceedings (including PSC Reports) cannot be relied on in a Court such that the contents of the same become contentious.  Take, for instance, the decision of the Queen’s Bench in Church of Scientology of California v Johnson-Smith, (1972) 1 Q.B. 522 where it was held that “what is said or done in the House in the course of any proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House.”

The purpose here is not to exhaustively examine decisions on privilege from the U.K. Such examination was carried out by the Court in the Kalpana Mehta judgment, and the correctness of their conclusion on this aspect is not something I am examining in this essay. The point here is that such examination was required precisely because of the colonial continuities established by Article 105(3), which ties our rules of privilege to those prevalent in the British House of Commons, and the Court ought to have confined itself to this alone. In other words, the questions before the Court should have been answered in two steps: –

  • Step 1: Read Article 105(3).
  • Step 2: Refer to parliamentary practice in the British House of Commons based on the explicit text and legislative history of Article 105(3), and whether there is are equivalent principles in the U.K. which would throw light on the circumstances in which a PSC Report could or court not be relied upon.

In fact, the reference to the British House of Commons in Articles 105 and 194 (Article 85 and 169 of the Draft Constitution of 1948) was actually debated in the Constituent Assembly (on 19.05.1949 and 03.06.1949 respectively). H.V. Kamath sought to move an amendment to delete this reference when the provision was debated on 19.05.1949, stating that “it is far better to build our own solid ground, rather than rely on the practices obtaining in other countries.” Naziruddin Ahmad said that “after Independence, we cannot relate our rights to those available to the Members of the House of Commons. Various members (such as Prof. Shibban Lal Saksena and Dr. P.S. Deshmukh) sought inclusion of an Appendix or a Schedule, clearly delineating the privileges to be enjoyed by legislators in India. The response came from Alladi Krishnaswami Ayyar (with whom Dr. Ambedkar concurred). He mentioned that similar provisions exist in Australia and Canada, stressing on the “widest privileges” as exercised by Members of Parliament in England. He also said that a Committee had attempted to catalogue parliamentary privileges, but this effort failed as time was insufficient. Most importantly, he stressed on the fact that this was a “temporary measure” and that “[t]here is nothing to fetter the discretion of the future Parliament of India.” From the debates, therefore, it is starkly evident that, firstly, despite the protests of a few members, the incorporation by reference of the privileges enjoyed by the House of Commons in the U.K. was retained by our Constituent Assembly and, secondly, despite this ostensibly being a temporary measure, no subsequent Parliament has chosen to end the colonial continuities contained in Article 105(3), delineating privilege rules for an Independent India, despite almost 68 years having passed since the Constitution was adopted. Both the Constituent Assembly and Parliament have, therefore, deliberately eschewed transformation in this particular case.

Gateways to Transformation

Let us now look at Justice Chandrachud’s exposition on our transformative Constitution in the Kalpana Mehta judgment. He states: –

71. In finding an answer to the questions in reference, this Court must of necessity travel from a literal and perhaps superficial approach, to an understanding of the essence of what the Constitution seeks to achieve. At one level, our Constitution has overseen the transfer of political power from a colonial regime to a regime under law of a democratic republic. Legitimizing the transfer of political power is one, but only one facet of the Constitution. To focus upon it alone is to miss a significant element of the constitutional vision. That vision is of about achieving a social transformation. This transformation which the Constitution seeks to achieve is by placing the individual at the forefront of its endeavours. Crucial to that transformation is the need to reverse the philosophy of the colonial regime, which was founded on the subordination of the individual to the state. Liberty, freedom, dignity and autonomy have meaning because it is to the individual to whom the Constitution holds out an assurance of protecting fundamental human rights. The Constitution is about empowerment. The democratic transformation to which it aspires places the individual at the core of the concerns of governance. For a colonial regime, individuals were subordinate to the law. Individuals were subject to the authority of the state and their well-being was governed by the acceptance of a destiny wedded to its power. Those assumptions which lay at the foundation of colonial rule have undergone a fundamental transformation for a nation of individuals governed by the Constitution. The Constitution recognises their rights and entitlements. Empowerment of individuals through the enforcement of their rights is the essence of the constitutional purpose. Hence, in understanding the issues which have arisen before the Court in the present reference, it is well to remind ourselves that since the Constitution is about transformation and its vision is about empowerment, our reading of precepts drawn from a colonial past, including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice. We no longer live in a political culture based on the subordination of individuals to the authority of the State. Our interpretation of the Constitution must reflect a keen sense of awareness of the basic change which the Constitution has made to the polity and to its governance.

73. Once we place the fulfilment of individual rights and human freedoms at the forefront of constitutional discourse, the resolution of the present case presents no difficulty. Individuals access courts to remedy injustice. As institutions which are committed to the performance of a duty to facilitate the realisation of human freedom, High Courts as well as this Court are under a bounden obligation to seek and pursue all information on the causes of injustice. Where the work which has been performed by a coordinate constitutional institution – in this case a Parliamentary Committee, throws light on the nature of the injustice or its causes and effects, constitutional theory which has to aid justice cannot lead us to hold that the court must act oblivious to the content of the report. [Emphasis supplied]

I fear that this exposition, enlightening as it may be while interpreting other portions of the Constitution, lacks precision when it comes to parliamentary privileges. To be fair, he does not ascribe a transformational purpose to Article 105. What he does, however, is employ a line of reasoning which would potentially render meaningless the text of Article 105. If we parse his reasoning, and break it down, it would go something like this:

  • A literal interpretation of the Constitution in this case would be superficial. We must look at the larger transformation purpose of the Constitutional, which empowers individuals.
  • One of the ways in which the Constitution empowers individuals is to given then the right to remedy injustice by approaching Courts. [Notice that he does not place any particular fundamental right in conflict with Article 105(3) or the privilege rules of the U.K.]
  • When the work of inquiring into the causes of such injustice has been carried out by a coordinate institution, there is no reason why a Court should not rely on the product of such inquiry.

As appealing as this may appear, there are huge problems with this line of reasoning. First, a larger transformational purpose cannot be used to distort the explicit language of Article 105, which clearly establishes a colonial continuity by referring to the privilege rules of the British House of Commons. The statement that “our reading of precepts drawn from a colonial past, including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice” is in conflict with Article 105(3) itself, which explicitly draws from our colonial past and incorporates by reference the rules of privilege prevalent in Britain prior to the adoption of the Constitution. Second, in this particular case, it is not even clear as to how Justice Chandrachud would read Article 105 differently in light of the Constitution’s transformative purpose. My only guess is that he is driving towards a principle where we ignore certain privilege rules in the U.K. if they conflict with this larger, amorphous idea of a transformative Constitution. Third, the fact that individuals approach Courts to remedy injustice does not really assist us in determining the extent and limits of privilege. To remedy such injustice, a constitutional Court cannot expand its powers and trample upon the prerogatives of Parliament. Putting it another way, a constitutional form of government also protects the individuals from the legislature, executive or judiciary assuming powers beyond those granted by the Constitution. The horizontal separation of powers between judiciary and legislature cannot be disturbed on the reasoning that the individual approaches one forum directly for redress. Finally, the purpose of inquiry by a Parliamentary Standing Committee is to advise Parliament, which then deliberates on ameliorating injustice through legislation. Courts have independent fact-finding powers – especially our Supreme Court which routinely forms SITs and other such inquisitorial committees. The fact that a PSC is inquiring into the same injustice as a constitutional Court does not, in itself, justify the conclusion that “there is no reason why a Court should not rely on the product of such inquiry” because, if there is a conflict with the rules of privilege, that provides an absolute reason to preclude reliance.

I believe that Justice Chandrachud’s idea of transformative Constitution is a powerful one. It will, however, come to be identified as shorthand for judicial overreach if it is not deployed in a consistent and intellectually rigorous manner. Certain provisions in our Constitution, such as Article 17, are pregnant with transformative purpose. Others, especially those derived from the Government of India Act, 1935, establish colonial continuities. There is a third category, like Article 105(3) that provides a gateway to transformation, by placing a responsibility upon Parliament to lay down new rules for an independent India (in this case, a charter of privileges derived from post-Independent experimentation), preserving colonial continuities as a temporary measure until Parliament rises to the occasion. Our courts should, perhaps, acknowledge the patchwork nature of our Constitution in interpreting it, to preserve its truest meaning.

Round-Up: Constitution Bench Judgments on Assisted Dying and Parliamentary Standing Committee Reports

Ever since the present Chief Justice assumed office, he has been presiding over what is effectively a permanent Constitution Bench, that has been hearing – and is scheduled to hear – a total of thirteen cases. In the first half of the year, the Bench handed down two judgments that have constitutional implications. The first was Common Cause v Union of India (now better known as the “passive euthanasia” case) and the second one was Kalpana Mehta v Union of India (the “parliamentary standing committees” case).

I do not think that either of these cases require a granular examination; the questions before the Court were broad, and were answered in broad terms. I shall briefly summarise the holdings, but before I do so, I think it is important to note, in passing, that Common Cause clocks in at 538 pages, and Kalpana Mehta at 338 pages. The length of both these judgments could be significantly shortened if the Chief Justice resisted the temptation of spending reams of pages philosophising about life and death in the first case, and about democracy in the second case. They could also be significantly shortened if the judges – none of whom dissented in either case – resisted the temptation of writing 100+-page concurring opinions (Common Cause has four separate opinions, Kalpana Mehta three).

For example, in Common Cause, Justice A.K.. Sikri wrote:

“My purpose is not to add my ink to the erudite opinion expressed in otherwise eloquent opinions penned by my learned brothers. At the same time, having regard to the importance of the issue involved, I am provoked to express my own few thoughts, in my own way, which I express hereinafter.” (paragraph 8)

It is respectfully submitted that the eminently laudable purpose of not adding ink is best served by, well, not adding ink. The provocation to express one’s own thoughts in one’s own way is an understandable one, but judges are, after all, meant to be made of stuff stern enough to recognise and avoid such provocations. This is not to say that the concurrences shouldn’t exist – for example, in Common Cause, Chandrachud J. has a significant disagreement with the other judges on the issue of causation, a disagreement that can be expressed only through an opinion that concurs in the result, but sets out its own separate reasoning. That apart, however, in both these cases, the five judges agree on almost everything. In such circumstances, a single opinion of the Court would make everyone’s life much easier.

In Common Cause, the Constitution Bench unanimously held that passive euthanasia was legal, grounded in the “right to die with dignity” under Article 21 of the Constitution, and ancillary concepts, such as the freedom of choice (to refuse medical treatment), personal autonomy, bodily integrity. The Court only legalised passive euthanasia (that is, to put it simply, the removal of life-supporting machinery from a terminally ill patient), not active euthanasia (mercy killing) or suicide. Following the Vishaka model, the Chief Justice laid down detailed guidelines (which immediately proved controversial) to facilitate the right through the mechanism of “Advance Directives”, and to prevent abuse.

There are perhaps two interesting jurisprudential points that emerge from the judgment. Four of the five judges grounded the distinction between “active” and “passive” euthanasia in the philosophical distinction between acts and omissions:

In case when the death of a patient occurs due to removal of life-supporting measures, the patient dies due to an underlying fatal disease without any intervening act on the part of the doctor or medical practitioner, whereas in the cases coming within the purview of active euthanasia, for example, when the patient ingests lethal medication, he is killed by that medication. (Opinion of the Chief Justice, para 46)

Justice Chandrachud – in my view, correctly – recognised the incoherence of this distinction, especially in the context of something like euthanasia. As he observed:

Against the background of the duty to care, the moral and legal status of not saving a life due to failure to provide treatment, can be the same as actively taking that life.A doctor who knowingly allows a patient who could be saved to bleed to death might be accused of murder and medical negligence. The nature of the doctor-patient relationship which is founded on the doctor’s duty of care towards the patient necessitates that omissions on the doctor’s part will also be penalised. When doctors take off life support, they can foresee that death will be the outcome even though the timing of the death cannot be determined. Thus, what must be deemed to be morally and legally important must not be the emotionally appealing distinction between omission and commission but the justifiability or otherwise of the clinical outcome. Indeed, the distinction between omission and commission may be of little value in some healthcare settings. (paragraph 40)

I’m not quite sure how this split in the approaches towards the act/omission distinction will play out in future cases, but – for obviously reasons – it seems to me that Justice Chandrachud’s approach – which detaches justification from the analytical classification of an event into an act or an omission – is far sounder (later on in his judgment, he – again, correctly in my view – recognises that the distinction is nevertheless maintained in the penal law, and therefore, active euthanasia can only be legalised by the legislature (para 93); and then, still later – this time, wrongly, in my view – links it to mens rea (para 98)).

The second interesting feature that I want to highlight is a little more abstract. When you pare it down to essentials, Common Cause was about a right of refusal. At one level, it was the right to refuse life-prolonging medical treatment. At a second level, however, it was also a right to refuse unwarranted technological intervention into one’s body, or – to put it in another words – the right to refuse being conscripted into a technological system, whatever its beneficial purpose. All the judges recognised this – whether it was the Chief Justice with his striking question about whether an individual should be made “a guinea pig for some kind of experiment”, or Justice Chandrachud’s repeated use of the word “intervention”.

When you combine this with the judgment’s invocation of privacy and autonomy, you get the germ of a concept that I’d like to call “technological self-determination.” In a piece written soon after the judgment, I attempted a definition:

Individuals have the right to engage with technological systems on their own terms, the right to opt into or opt out of such systems without suffering for it, and the right not to be subjected to technological intervention without being given meaningful choice. Let us call this the principle of technological self-determination: or the right of every individual to determine how, on what terms, and to what extent, she will engage with technological systems.

In Common Cause, the stakes were relatively low; however, in the years to come, as technology becomes ever more ubiquitous and ever more intrusive, the idea of technological self-determination will become crucial. One does not even need to look to the future: technological self-determination is a key aspect of the Aadhaar constitutional challenge, presently awaiting judgment. Aadhaar is a complex technological system that operates at the stages of collection, storage and use of personal data; mandatory Aadhaar authorises the government to set the terms by which individuals must engage with this system.

Technological self-determination may or may not feature in the Aadhaar judgment, but it has, at least, made an incipient appearance in Common Cause, and gives all of us something to build on for the future.

The Constitution Bench’s second judgment dealt with the use of Parliamentary Standing Committee reports in Court. The reference arose out of a PIL, which is unsurprising: it is primarily in PILs – where broad and far-reaching (and often continuing) remedies are sought, and the Court takes on the role of an administrator – that the findings of Parliamentary Standing Committees become particularly useful.

In a forthcoming blog post, Karan Lahiri will critique the judgment in some detail; reading it, however, was a somewhat strange experience, because both sides appeared to agree on a lot of issues. Both sides agreed that the credibility of a member of Parliament could not be impugned in Court, through the production of a PSC, since the doctrine of parliamentary privileges and the principle of the separation of powers militated against it. Both sides agreed that a Parliamentary Standing Committee could be used in an interpretive enquiry – that is, while interpreting ambiguous statutory provisions, as a part of the legislative history and record. The Court accepted both these straightforward propositions. The Court also held that – in terms of the law of Evidence – a PSC could be treated as a “fact.” Broadly, this means that the existence of the PSC and the existence of its contents (including, presumably, which Minister said what) are factual, and can be relied upon in Court without dispute. However, the contents themselves cannot be relied upon. For example, if a PSC states that “x was the situation prevailing at y time”, then the fact that the PSC says can be cited in Court (say, to interpret a law, or for some other purpose), but the question of whether x was actually the situation at the time has to be demonstrated independently, and using the rules of evidence:

From the aforesaid, it clear as day that the Court can take aid of the report of the parliamentary committee for the purpose of appreciating the historical background of the statutory provisions and it can also refer to committee report or the speech of the Minister on the floor of the House of the Parliament if there is any kind of ambiguity or incongruity in a provision of an enactment. Further, it is quite vivid on what occasions and situations the Parliamentary Standing Committee Reports or the reports of other Parliamentary Committees can be taken note of by the Court and for what purpose. Relying on the same for the purpose of interpreting the meaning of the statutory provision where it is ambiguous and unclear or, for that matter, to appreciate the background of the enacted law is quite different from referring to it for the purpose of arriving at a factual finding. That may invite a contest, a challenge, a dispute and, if a contest arises, the Court, in such circumstances, will be called upon to rule on the same. (Opinion of the Chief Justice, para 117)

And:

“… whenever a contest to a factual finding in a PSC Report is likely and probable, the Court should refrain from doing so. It is one thing to say that the report being a public document is admissible in evidence, but it is quite different to allow a challenge.” (Opinion of the Chief Justice, para 124)

There is some doubt on this last point, as it appears that Justice Chandrachud and Sikri’s joint opinion envisioned a slightly more prominent role for PSCs, where it factual determinations could be impacted by virtue of being part of a PSC (this is my reading, and I am open to correction on this). However, even if that was the case, it would put them in a minority: on my reading, the majority holding in Kalpana Mehta is what I extracted in the paragraph above.

Doctrinally, it is interesting to note that, in the course of extensive discussions by the three separate opinions on issues of parliamentary privileges, democracy, and the separation of powers, it was only Justice Chandrachud, in the joint opinion, who addressed the elephant in the room: that with PIL becoming such a dominant part of the Court’s docket – which includes, inter alia, the Supreme Court often assuming the role of the first and final trier of fact – the application of separation of powers and parliamentary privileges necessarily needs to change, just to maintain internal consistency. In cases where the Court issues a continuing mandamus and monitors government action on a hearing-by-hearing basis (such cases are legion by now across India), the entire approach that was founded on the Executive being the primary implementing authority, needs to be modified. As the joint opinion observed:

“In matters involving issues of public interest, courts have been called upon to scrutinize the failure of the state or its agencies to implement law and to provide social welfare benefits to those for whom they are envisaged under legislation. Courts have intervened to ensure the structural probity of the system of democratic governance. Executive power has been made accountable to the guarantee against arbitrariness (Article 14) and to fundamental liberties (principally Articles 19 and 21).

Committees of Parliament attached to ministries/departments of the government perform the function of holding government accountable to implement its policies and its duties under legislation. The performance of governmental agencies may form the subject matter of such a report. In other cases, the deficiencies of the legislative framework in remedying social wrongs may be the subject of an evaluation by a parliamentary committee. The work of a parliamentary committee may traverse the area of social welfare either in terms of the extent to which existing legislation is being effectively implemented or in highlighting the lacunae in its framework. There is no reason in principle why the wide jurisdiction of the High Courts under Article 226 or of this Court under Article 32 should be exercised in a manner oblivious to the enormous work which is carried out by parliamentary committees in the field. The work of the committee is to secure alacrity on the part of the government in alleviating deprivations of social justice and in securing efficient and accountable governance. When courts enter upon issues of public interest and adjudicate upon them, they do not discharge a function which is adversarial. The constitutional function of adjudication in matters of public interest is in step with the role of parliamentary committees which is to secure accountability, transparency and responsiveness in government. In such areas, the doctrine of separation does not militate against the court relying upon the report of a parliamentary committee. The court does not adjudge the validity of the report nor for that matter does it embark upon a scrutiny into its correctness. There is a functional complementarity between the purpose of the investigation by the parliamentary committee and the adjudication by the court….

… The extent to which the court would rely upon a report must necessarily vary from case to case and no absolute rule can be laid down in that regard.” (Joint Opinion authored by Chandrachud J., paras 65 – 66)

I do not know if this addresses the problem to the fullest extent – to be fair, I don’t know if the problem can be addressed within existing legal vocabulary, which simply doesn’t envisage the Court as permanent administrator – but it does, at least, acknowledge the misfit, and make a start towards addressing it. Justice Chandrachud’s invocation of the “transformative Constitution” at the end of the Opinion, as an anchoring principle, is interesting, and I shall examine it in some detail in a subsequent post.

(This ends the Round-Up Series, that dealt with important constitutional pronouncements in the first half of 2018.)

Guest Post: The Supreme Court on Parliamentary Privileges and Constitutional Freedoms – I

(In this Guest Post, Rahul Bajaj, a fourth-year law student at the University of Nagpur, examines a recent Supreme Court judgment – Algaapural R. Mohanraj v TN Legislative Assembly – on parliamentary privileges and constitutional freedoms. This is the first of two guest posts on the case.)

The width and amplitude of the powers of courts to test the legality of legislative proceedings against the touchstone of constitutional values and principles has always been a hotly contested issue. Indeed, there can be no gainsaying that the answer to this question has profound implications for the doctrine of separation of powers, checks and balances and parliamentary sovereignty. Against this backdrop, it would be instructive to examine a recent Supreme Court decision, penned by Justice Chelameswar, that not only throws light on the interrelationship of fundamental rights and parliamentary privileges, but also examines the scope of the court’s power to intervene in disciplinary proceedings that are governed by rules framed by every legislature for this purpose.

The facts of this case lie in a narrow compass but nonetheless merit brief recapitulation in order to set the tone for the discussion that is to follow. On 19.02.2015, some members of a political party known as the DMDK resorted to unruly conduct in the Tamil Nadu Legislative Assembly and ran towards the speaker’s podium when the speaker ordered the eviction of one of them for such conduct. Consequently, the speaker suspended 19 members of the party for the rest of the concerned session and referred the matter to the Privileges Committee of the Assembly for recommending appropriate disciplinary action. The Committee, after having carefully evaluated the conduct of the members, recommended that six of them be prohibited from attending the first 10 days of the next session of the Assembly in addition to being deprived of the other benefits that flow from holding a legislative post. The recommendations of the Committee were accepted by the Assembly by virtue of a resolution dated 31.03.2015, giving rise to the filing of the writ petition under discussion.

The petitioners, who decided to directly move the Supreme Court by invoking its extraordinary powers under Article 32, claimed that their suspension fell foul of their 4 fundamental rights: Freedom of speech and expression under Article 19(1)(a); freedom to practice the occupation of one’s choice under Article 19(1)(g); right to a non-arbitrary procedure flowing from Article 14; and right to receive their salary and other accompanying benefits flowing from Article 21.

In response to the petitioners’ contention about the infraction of their freedom of speech, the Court framed the scope of its inquiry in the following way in para 16: “Two questions are required to be examined in the context; (i) when a member of a State Legislature participates in the proceedings of the House, is that member exercising a fundamental right of speech and expression under Article 19(1)(a)? (ii) Whether any action, either of that legislative body or any other authority, acting pursuant to any law, disabling either temporarily or otherwise a member from participating in the proceedings of the legislative body, amounts to deprivation of the fundamental right to freedom of speech under Article 19(1)(a) of such a legislator?”

After noting the constitutional scheme governing the proceedings in the Parliament and legislative bodies under Articles 105 and 194, the Court held that the freedom of speech guaranteed to legislators is merely a constitutional right and cannot, therefore, be equated with the fundamental right to freedom of speech embodied in Article 19(1)(a). The distinction between the nature of these two rights, as the Court explains in para 18 of the judgment, flows from 4 main factors: While the fundamental right under Article 19(1)(a) inheres in every citizen, the constitutional right under Article 105(1) and 194(1) only inheres in legislators; while the former is inalienable, the latter only applies during the tenure of a legislator in the Assembly/Parliament; while the geographical scope of the former has not been circumscribed by the Constitution, the latter only applies within the confines of the premises of legislative bodies; and while the former is subject to reasonable restrictions under Article 19(2), the latter is subject to the rules of the legislative body and the constitutionally imposed restriction under Article 121 and 211 on discussion of the conduct of judges.

While this distinction is founded on sound legal principles, three features of the Court’s enunciation of the distinction merit emphasis. First, implicit in the Court’s reasoning is the belief that Article 19(1)(a) does not apply within the premises of legislative bodies on account of the existence of special provisions under Articles 105 and 194. However, the Court does not offer any principled rationale for such non-application and, in fact, explicitly recognizes that there are no geographical limits on the applicability of Article 19(1)(a). While it is true that the right under Article 105(1) and 194(1) serves a different set of purposes from those served by the fundamental right to speak freely, it is submitted that this, alone, cannot be a ground to hold that the scope, width and amplitude of the two rights are entirely different. Therefore, instead of viewing these two rights as being completely different in their scope and application, it may have made more sense for the Court to say that the right to speak freely within legislative bodies is a specific facet of the fundamental right under Article 19(1)(a) that possesses some sui generis features. Viewing the right under Article 105(1) and 194(1), metaphorically speaking, as a distinct stream flowing from the river i.e. Article 19(1)(a) would, it is submitted, result in the right being secured on firmer constitutional moorings.

More specifically, such a conception of the right would allow the court to engage in a deeper analysis of whether the restriction on a legislator’s right to speak freely within the legislative body is constitutionally defensible instead of merely stating that, since the reasonableness of such a restriction cannot be tested against the touchstone of Article 19(2), it is constitutionally tenable so long as its curtailment is sanctioned by parliamentary rules and other constitutional restrictions such as those found in Articles 121 and 211.

Second, the Court’s recognition of the right of legislator’s to speak freely as a constitutional right viz. something more than a legal right but less than a fundamental right may make sense in the abstract but does not appear to have any concrete relevance. As Gautam Bhatia rightly noted in the context of the Supreme Court’s decision pertaining to the Haryana Panchayati Raj Act, it is unclear what, precisely, the recognition of a right as a constitutional right means. This distinction is of special relevance in this case because the Court goes on to hold that, since the right under Article 194 is merely a constitutional right and is subject to the restrictions set forth in the Constitution, it cannot be said that the petitioners’ fundamental right to speak freely was violated in this case (para 20). Third, although the court notes in para 18 that the origin of the right of legislators to speak freely within the premises of the legislative body can be traced back to the privileges in the House of Commons, Justice Chelameswar does not meaningfully address how the historic importance of this freedom must inform our contemporary understanding of it. More specifically, as the Supreme Court noted in the case of Raja Ram Pal versus the Hon’Ble Speaker, Lok Sabha, the historic origin of the freedom of speech of Parliamentarians can be traced back to Article 9 of the Bill of Rights, 1689, which “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). Therefore, Justice Chelameswar would have been able to offer a far more nuanced and constitutionally defensible justification for the distinction between Article 19(1)(a) and 105(1)/194(1) by grounding his analysis in the unique considerations that must have weighed with the Constituent Assembly while crafting Article 105(1) and 194(1), such as the need to promote uninhibited debate about issues of public relevance and the need to offer legislators and parliamentarians the freedom to criticize the policies of the ruling dispensation, no matter how caustic or unpleasant their remarks might be.

The petitioners’ second argument was that the term ‘occupation’ under Article 19(1)(g) is of a sufficiently wide amplitude to cover the work of legislators within its ambit (para 22). The Court rejected this argument on two main grounds: First, an essential prerequisite for invoking the benefit of Article 19(1)(g) is that the activity in question must necessarily be a livelihood-generating activity and, since economic benefits are merely incidental to the work of legislators, their work cannot be said to be motivated by the objective of eking a livelihood. Second, since it has been held that the right to contest elections is not a fundamental right, it can be logically inferred that an individual does not have a fundamental right to hold a legislative post or to enjoy the benefits that flow from holding such a post by virtue of an election (paras 25 and 26). Again, while the Court’s reasoning appears constitutionally defensible for the most part, the Court does not offer a sufficiently robust justification in support of its holding that the job of legislators cannot be treated as an ‘occupation’ because they are tasked with the responsibility of discharging constitutionally prescribed goals and are not expected to work principally for earning financial returns. The practitioners of many noble professions, it can be legitimately argued, pursue their chosen profession as an end in itself and not as a means to an end, making the financial benefit flowing from their work transient or incidental. Therefore, it is difficult to understand how the Court views the transient nature of financial benefits flowing from legislative office as a determinative factor for coming to the conclusion that the work of legislators does not come within the ambit of the term ‘occupation’.

As the Court rightly recognized, the petitioners’ third argument about the violation of their fundamental right under Article 21 on account of their suspension was wholly baseless and unfounded. The Court rejected this argument principally on the ground that legislators do not have an independent and indefeasible right to claim the benefits that flow from holding a legislative post, so the question of violation of Article 21 does not arise (para 29).

The petitioners’ fourth and final argument swung the decision in their favour. The video recording of the unruly conduct of the petitioners on 19.02.2015, that the Privileges Committee relied on for arriving at its conclusion about the guilt of the petitioners, was not shared with the latter at any point during the disciplinary proceedings. This omission, the petitioners argued, was not only violative of principles of natural justice but also fell foul of their fundamental right to a fair, transparent and non-arbitrary hearing under Article 14. The Court accepted this argument for a trifecta of reasons. First, the Court emphasized the critical importance of the video recording in the proceedings of the Privileges Committee because the recording formed the factual foundation upon which the recommendations of the Committee against the petitioners were based (para 38). A failure to share such a crucial piece of evidence with the petitioners, the Court held, amounted to a glaring impropriety that vitiated the legality of the proceedings. Second, if the petitioners had been afforded an opportunity to view the video recording, the Court opined, they would have been able to put forth cogent and compelling reasons for justifying their conduct – indeed, one Petitioner sought the permission of the Committee to explain his conduct on the basis of the recording and another expressed his conviction that the recording would conclusively prove his version of events (paras 41 and 42). Finally, the Privileges Committee was legally bound to afford an opportunity to the petitioners to view the video recording so as to make its procedure compliant with Article 14. Viewed through this lens, the opportunity to view the recording was not just a means to an end – to afford the petitioners an opportunity to rationalize their conduct or to rebut the allegations of the Committee – but an end in itself as they were legally entitled to this procedural guarantee (para 42). On account of this procedural lacuna in the conduct of the Committee, the Court quashed the resolution dated 31.03.2015 and held that the petitioners were entitled to the benefits that they were deprived of owing to the Recommendations of the Committee.

In the final analysis, it can be said with considerable certitude that, even though the judgment is founded on a lucid and robust application of relevant legal principles, it fails to grapple with the constitutional questions that this case poses with the level of depth, nuance and intellectual rigor that they merit.