The Supreme Court (SC) upheld the Parliament’s controversial expulsion of 11 Members of Parliament (MPs) caught in a media sting over the cash for query scandal and said that the expulsion was in accordance to law. The Constitutional bench voted 4-1 upholding the expulsion but the dissenting judge said that the MPs should have been tried under the Prevention of Corruption Act.
The expelled MPs claimed that they were not given due process to defend themselves on the floor of the Parliament but the SC in its 357 page majority judgment observed that those expelled did not avail time given them by the Pawan Kumar Bansal Committee appointed by the Lok Sabha and the Ethics Committee of the Rajya Sabha. While their action taking cash for asking loaded questions in the Parliament is indefensible, the presumptions of innocence is required for the correct administration of law and not allow the media to conduct kangaroo or influence trials. It appears that those expelled, however rashly, were given time to defend themselves that they had not availed.
In delivering its verdict, the SC asserted its right to review Parliament’s decisions thus bunking Speaker Somnath Chatterjee’s assertion that the Parliament was the supreme body of the nation. While reviewing the Speaker’s speech in the Parliament, the SC panel observed that it could not find anything wrong with his statements but said that since India followed the Westminster model of governance of the United Kingdom, it alone held the right to interpret the Constitution. Writing the majority judgment, Chief Justice Y.K. Sabharwal wrote "Parliament is a co-ordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny." Chatterjee did not agree with the SC’s assertion on its right to review Parliamentary decisions but welcomed the ruling on the MPs saying that the ruling was “a message to all legislators” that they “have to be role models” and their “conduct should be exemplary.”
The Bharatiya Janata Party (BJP) which objected to the expulsion accepted the ruling saying that they found closure. The BJP had objected to the nonchalant dismissal of due process to the MPs—most of whom were from that party. Their acceptance of the ruling is seen as an reversal of positions. The BJP ducked questions on whether it would support a criminal prosecution of those expelled.
The Congress made grandiose statement that the ruling about the Constitution being interpreted in letter and spirit but twisted the ruling to mean that the Parliament had the right to take the decision on the conduct of its members. The SC had no time challenged this but only asserted its right to review such decisions and to ensure that there was due process. It also ducked question on whether it would support criminal prosecution of those expelled by pleading for time to study the ruling.
The communists supported the expulsion from the start and claimed that the ruling should have a "positive impact" on the behavior of members of legislatures. They did not say how this will happen in the absence of clear procedures, guidelines, or mechanisms that would make such repetitive behavior illegal or even bar those tainted from future representation in the Parliament. Somehow, they also twisted the ruling to their advantage to claim that the court had acceded to the view that Parliament was supreme when it said exactly the opposite when in comes to interpretation of the Constitution.
In a clear message to those politicians preaching supremacy, the SC said that “Constitutional system of government abhors absolutism” and that the “cardinal principle” of the Constitution that “no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution.” It reminded that “Mere co-ordinate constitutional status, or even the status of an exalted constitutional functionary, does not disentitle this court from exercising its jurisdiction of judicial review of action which partakes the character of judicial or quasi-judicial decision." If fact, the SC clearly said that its “co-ordinate constitutional position” does not mean that “there can be no judicially manageable standards to review exercise of its power” and does not preclude it from “scrutinising the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens.” It pointedly dismissed the submission of the government as “not correct” the contention that “exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions.” It also rejected claims of “immunity” or “exclusive cognizance” to “parliamentary proceedings in Article 105 (3) of the Constitution.”
Those who believe in the process of jurisprudence in the nation would accept the view of the SC to have closed the issue but even with the ruling upholding the expulsion of the MPs, several unanswered questions remain. Firstly, the Parliament’s rule and ethics committee is grossly under-empowered and existing rules and guidelines do not clearly make illegal behavior criminal and eligible for expulsion. Secondly, there is no consensus on how to deal with MPs who are expelled from future acceptance in the Parliament—thus there is nothing that can stop someone like Shibu Soren or those with lesser criminal record from contesting elections after a point or disallow the continuance of the parties that they represent. Thirdly, even though the dissenting judge has been out-voted, his observation on “membership” criteria and process of expulsion seems to stem from loopholes in existing rules—these need to be tightened. The worst case scenario is that the ruling party in collusion with the Speaker can expel members at will without due process thus greatly damaging the democratic foundations of the nation. This issue was alluded to by a majority judge who gave a separate judgment warning of “gross abuse of power by Parliament/State Legislature” and “unreasonable action” even though “By and large, constitutional functionaries” have “admirably performed their functions.” Fourthly, at least publicly, Parliamentarians seem to think that they can pretty much act with impunity and that their supremacy cannot be challenged by the court, President, or others. This is a serious issue showing a gradual disrespect for the rule of law or respect for the Constitution. It is not clear if this springs from lack of understanding of the Constitution or simple arrogance of power—whatever the reason, this issue requires public debate and understanding on the powers of various Constitutional bodies.