On November 9, the Lok Sabha Ethics Committee adopted a report by its chairman, BJP MP Vinod Kumar Sonkar, recommending the expulsion of Trinamool Congress MP Mahua Moitra from the Lok Sabha. The report, which was prepared with a 6:4 vote, alleges that Moitra accepted cash and gifts from businessman Darshan Hiranandani as bribes for asking questions in the Lok Sabha. Moitra has denied the allegation.
The committee rejected Moitra’s plea to summon Hiranandani and grant her the opportunity to cross-examine him and Supreme Court lawyer Jai Anant Dehadrai, who corroborated the allegation. The report, which is not yet public, condemns Moitra for “unethical conduct” and “contempt of the House” for sharing her Lok Sabha log-in credentials with Hiranandani.
It will be of interest to know how the Supreme Court has decided challenges to previous expulsions. Two Constitution Benches of the Supreme Court have delivered two different verdicts in two cases.
Raja Ram Pal vs The Hon’ble Speaker
In Raja Ram Pal, a majority of four judges held that Parliament has the power to expel its members, and such power is justiciable. Raja Ram Pal was one of 10 Lok Sabha members who were accused of indulging in unethical and corrupt practices of taking monetary consideration in relation to their functions as MPs.
The bench, comprising the then Chief Justice Y.K. Sabharwal, and Justices K.G. Balakrishnan, D.K. Jain, C.K. Thakker, and Justice R.V.Raveendran was unanimous that the Constitution is supreme and sovereign and that Parliament must act within the limitations imposed by the Constitution. They also agreed that the Indian Parliament is a creature of the Constitution, and its powers, privileges, and obligations are specified and limited by the Constitution.
However, there was disagreement over the interpretation of Article 101 of the Constitution, which deals with the vacation of seats in both Houses of Parliament. The petitioners argued that expulsion was beyond the power of Parliament because Article 101 is silent on the expulsion of members.
Justice R.V. Raveendran, the lone dissenting judge, explained that while the non-mention of death as a ground for vacancy does not make Article 101 any less exhaustive, it refers to the vacation of seat by a person who is a member of the House, that is, a person who is alive.
Ironically, the majority judges equated death, which is not mentioned under Article 101, with the non-mention of expulsion as a ground under the same provision to hold that it need not be interpreted as exhaustive of all the relevant grounds for the purpose of declaring a seat in Parliament vacant.
Article 101 of the Constitution refers to the automatic cessation of membership in Parliament on certain grounds, such as when a member is elected to the other House of Parliament or to a State Assembly and does not resign from either within the specified period, or when a member is continuously absent from the House for 60 days without permission.
Expulsion of a member, on the other hand, follows a finding of guilt by a committee set up by the House. As a result, the cessation of membership is not automatic and is therefore outside the scope of Article 101.
Articles 105 and 194 of the Constitution, which deal with the powers and privileges of the Houses of Parliament and the State legislatures, respectively, are also silent on expulsion.
In the case of Raja Ram Pal vs The Hon’ble Speaker, Lok Sabha (2007), a majority of four judges held that Parliament has the power to expel its members, and such power is justiciable. The judges reasoned that the Founding Fathers wanted Parliament to retain the power and privileges to take appropriate action against any individual member for anything that has been done by them which may bring Parliament or Legislative Assembly into disgrace.
They also held that Articles 101 and 102, which deals with the disqualification of Members of Parliament, are not exhaustive.
Amarinder Singh vs Special Committee, Punjab Vidhan Sabha
In 2010, another five-judge Constitution bench reviewed the law on expulsion of members in Amarinder Singh v Special Committee, Punjab Vidhan Sabha. In this case, Justices Balakrishnan and Raveendran, who had disagreed with each other in Raja Ram Pal, gave a unanimous verdict, declaring the expulsion of Amarinder Singh unconstitutional.
The bench held that if the legislature were permitted to exercise privileges for acting against members for their executive acts during previous terms, the courts would likely be flooded with cases involving political rivalries. The bench also held that such a scenario would frustrate some of the basic objectives of a parliamentary democracy.
Mahua Moitra’s imminent expulsion from the Lok Sabha shows how the device of expulsion can be used against political opponents or dissidents, even without a regime change. It can also be used against members for their legislative acts.
Moreover, in Moitra’s case, the Ethics Committee has urged the Union Government to conduct a “time-bound, intense legal and institutional inquiry” to investigate and establish the existence of a money trail, if any.
This clearly shows that if Moitra is guilty of corruption, she could be prosecuted under the criminal law by lifting the veil of immunity. Therefore, the question arises whether the committee recommended her expulsion hastily without ascertaining the full facts.
More importantly, in the case of Amarinder Singh, the Supreme Court held that expressions such as “lowering the dignity of the House,” “conduct unbecoming of a member of the House,” and “unfitness of a member” are open-ended and abstract grounds. If recognised, these grounds could trigger the indiscriminate and disproportionate use of legislative privileges by incumbent majorities to target their political opponents and dissidents.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues for news portals.