This paper critically examines the power of expulsion in Indian parliamentary law, challenging its characterization as an inherent privilege of the legislature, as upheld by the Supreme Court in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha. Drawing on historical and contextual differences between the British and Indian parliamentary systems, the paper argues that British parliamentary privileges, including expulsion, arose from judicial functions and historic practices absent in Indian legislative bodies.

It contends that the Constitution of India and the Representation of the People Act, 1951, provide a comprehensive legal framework for membership, disqualification, and vacancy, leaving no room for an implicit power of expulsion. The majority opinion's selective reliance on foreign precedents, particularly from Britain, Canada, and Australia, disregards India's unique constitutional context, especially its emphasis on separation of powers and judicial review.

The paper further critiques the potential for political misuse of the power of expulsion, risking democratic accountability and undermining judicial independence. Ultimately, it advocates for a more restrained approach to legislative privileges, with punitive actions against members being subject to due process and judicial oversight to safeguard India's democratic fabric.

"Nothing is harder to define than the extent of the indefinite powers or rights possessed by either House of Parliament under the head of privilege or law and custom of Parliament". - A. V. Dicey

Introduction
The power to expel members from a legislative body is a contentious issue that raises fundamental questions about the nature of parliamentary privileges and the constitutional framework governing legislative assemblies in India. Historically, the privileges of the Indian Parliament were modeled after those of the British Parliament, reflecting a colonial legacy that may not align with the democratic ethos of contemporary India.

The Constitution of India, while granting certain privileges to Parliament under Article 105, does not explicitly confer the power to expel members. This absence of explicit constitutional provision raises concerns about the legitimacy of such a power, particularly in light of the fundamental rights guaranteed to citizens, including members of Parliament. The potential for abuse of this power by the ruling majority poses a significant threat to the principles of democracy, accountability, and the rule of law.

The landmark case of Raja Ram Pal v. The Hon'ble Speaker, Lok Sabha has often been cited as a pivotal moment in the discourse surrounding this power, as it upheld the authority of Parliament to expel members for acts deemed contemptuous. In this case, the Supreme Court held that the power of expulsion is provided to the Legislature as a privilege under Articles 105(3) and 194(3). Secondly, it held that the Supreme Court possessed the authority to determine the content and scope of such privileges. Thirdly, it held that the Court had the power of judicial review over the exercise of such privilege if it suffered from gross illegality or unconstitutionality.

While I agree with the majority's holding on the second and third issues, I do not agree that the power of expulsion is within the powers and privileges provided under Art. 105(3) and 194(3). In this paper, I criticize the majority opinion of the Raja Ram Pal case, arguing that the power to expel is not an inherent privilege of legislatures in India. Firstly, I use the historical and contextual differences between the British and Indian parliamentary systems, to argue that the British parliamentary privileges, including expulsion, were rooted in judicial functions and historical practices that are not present in the Indian context.

Secondly, I argue that the Indian Constitution and the Representation of the People Act of 1951 provide a comprehensive and exhaustive framework for membership and disqualification, thus rendering the power of expulsion extraneous to the Constitution's explicit provisions. Lastly, I critique the selective use of comparative laws and foreign precedents by majority opinion and the risk of blurring the separation of powers between legislative and judicial functions.

Historical and Contextual Differences
The majority opinion held that the power of expulsion of members by Indian legislatures, including Parliament, is inherited from the British House of Commons through Articles 105(3) and 194(3).[1] However, there are significant historical and contextual differences between the British and Indian Parliament practices. According to May, the origin of the modern Parliament in England consisted in its judicial functions.[2] Parliamentary privileges originated in England as a means to protect the independence and dignity of legislative bodies.[3]

These privileges were developed over centuries to ensure that Parliament could function without interference from external forces, including the executive and judiciary. In the case of Edward Kielley v. William Carson[4], Privy Council held that the power to punish for contempt is an inherent power in the House of Lords and the House of Commons, but this power came not as a body with legislative functions but as a descendant of the High Court of record and by virtue of lex et consuetudo Parliamenti.[5] However, this judicial function was never performed by the Indian Parliament.

In the UP Assembly Case[6], Judges held that it is a fact of English history that Parliament was discharging judicial functions in its early career.[7] It is obvious that these historical facts cannot be introduced in India by any legal fiction. In this case, it was also held that not all the powers enjoyed by the House of Commons at the commencement of the Constitution of India vest in an Indian Legislature in its entirety.[8]

There are some powers that cannot obviously be so claimed based on historical differences and I think the power of expulsion is a power that cannot be claimed due to fundamental historical differences in the functions performed by British Parliament and Indian Parliament. This difference is critical because Indian legislatures operate within a written Constitution with a strong emphasis on the separation of powers, while the UK's parliamentary system operates on unwritten conventions and exercises broader privileges based on its historic dual role as a legislative and judicial body.

The power of expulsion in the House of Commons was historically rooted in the privilege of regulating the composition of the House, rather than serving as an independent power to regulate its own proceedings or a penal authority for punishing contempt. As argued by Anson in the book "The Law and Custom of the Constitution", expulsion was tied to the House's authority to determine its membership and ensure the fitness of those who served.[9]

This was a privilege unique to the British parliamentary tradition due to the fact that Parliament in England is sovereign, has unlimited powers and does not have a written constitution, and the laws made by the Parliament are deemed as supreme.

The British Parliament's judicial-like functions, including its power to expel, were expressions of its ability to control the composition of the House - a right that emanated from its position as the High Court of Parliament.[10] However, this self-composition power is fundamentally absent in Indian parliamentary practice. Unlike the British Parliament, which could determine its own membership independently, the composition of the Indian Parliament is explicitly provided for within the Constitution in Chapter II of Part IV.[11]

This means that the power of expulsion cannot be imputed as an inherent privilege of Indian Parliament and the majority opinion in the case overlooks the fundamental differences between the historical privileges of the British Parliament and the limited powers granted to Indian legislatures by the Constitution. Also, granting the power of expulsion to the legislature gives it the power to regulate its own constitution and composition which has not been provided to the legislature in the constitution and thus goes against the constitutional provision.

Constitutional Structure and the Absence of Expulsion as an Inherent Power

The Constitution of India and the Representation of the People Act, 1951 together provide a comprehensive legal framework governing the membership, composition, and disqualification of members of Parliament.[12] Articles 79 to 104 of the Constitution, read with the Representation of the People Act, set out a detailed and structured process for the qualifications, disqualifications, and the vacation of seats in the Parliament, reflecting the intent of the Constitution-makers to have an exhaustive code that addresses all scenarios regarding parliamentary membership.[13] The majority opinion however did not consider that the Constitution of India and the Representation of the People Act, 1951 provides exhaustive provision regarding disqualification and vacancy.[14]

It relied on the argument that these provisions do not incorporate the vacancy that arises when death occurs, so these are not exhaustive provisions regarding disqualifications and vacancy. So, it held that expulsion is also one such category that is not explicitly provided in the Constitution and leads to vacancy.[15] However, Justice Raveendran criticizes this reasoning and argues that death obviously leads to a vacancy as a dead person cannot hold a seat in Parliament.[16]

He argued that the obvious effect of death did not require to be stated and therefore the non-mention of death as a ground for vacancy does not make Article 101 any less exhaustive.[17] Justice Raveendran also emphasized that the Constitution explicitly provides for the cessation of tenure and removal of every constitutional functionary.[18] It is therefore inconceivable that the Constitution-makers would have omitted to include expulsion as one of the methods of cessation of membership if they intended to vest such power in Parliament.[19]

The structured and explicit nature of these provisions indicates that expulsion was not meant to be an inherent power of the legislature. If expulsion were intended to be a method of removal, it would have been expressly included, as was done for disqualification in Article 102.[20] Justice Raveendran correctly noted that unless Articles 101 and 102 are amended or new legislation is enacted under Article 102(1)(e), that enables the House to expel a Member found unworthy or unfit of continuing as a Member, Parliament cannot claim the power to expel a member.[21]

Selective Invocation of Comparative Law and Precedents

The majority opinion seems to be selective and strategic in its invocation and reliance on comparative law, and foreign precedents particularly from English and Canadian precedents, to substantiate the claim that the Indian Parliament possesses the power to expel its members.[22] The judges noted that the British Parliament possesses the power to expel members, citing its historical development as part of its broader privileges and powers.

This privilege arises from the House of Commons' authority to determine its own composition and its role as a "High Court of Parliament."[23] In the case of Canada and Australia, the judges noted that these Commonwealth countries had adopted parliamentary privileges similar to those of the British House of Commons at the time of their independence.[24]

These privileges included the power to expel members. In Canada, while parliamentary privileges were borrowed from the British system, the courts were clear that the power to regulate membership, including expulsion, must align with the written Constitution.[25] The analogies drawn with Canada, Australia, and the U.S. overlook how these countries, despite their shared common law heritage with India, have developed their own constitutional systems with checks and balances.

Thakker J. went on long tours of Australian, Canadian, and English law, using the materials in a way conducive to his preferred conclusion. He cited the Cooley's commentary on the US Constitution to say that the power of expulsion exists with the legislature of the USA.[26] However, Thakker J. did not seem to get the rather simple point that the power of expulsion has been specifically granted by the text of the U.S. Constitution.[27] The House in the U.S. possesses the power to expel because the text says so.[28] However, the same is not true for the Indian Parliament as there are no express provisions.

Also, Thakker J. does not provide the reason for using these foreign laws. As such, simply borrowing the notion of expulsion from foreign jurisdictions is inappropriate without analysing how this power fits within India's constitutional architecture. Raveendran J. rightly challenged the utility of such judicial tourism. "Decisions of foreign courts," he said, "though useful to understand the different constitutional philosophies and trends in law" are of "limited or no assistance in interpreting the special provisions of Indian Constitution, dissimilar to the provisions of foreign constitutions."[29]

The reliance on English and Canadian precedents overlooks the distinct constitutional contexts between India and these jurisdictions. While the British Constitution is flexible and unwritten, allowing Parliament to exercise broad powers, including expulsion, the Indian Constitution is a detailed, written document with specific provisions aimed at safeguarding fundamental rights and maintaining the separation of powers between the judiciary, executive, and legislature. By relying heavily on these precedents, the Court appears to have cherry-picked cases that align with its desired conclusion while conveniently disregarding those that could offer a different perspective.

Separation of Powers: Legislature v. Judiciary
The principle of separation of powers is fundamental to the structure of governance established by the Indian Constitution. Granting the legislature the power to expel its members can blur the lines between legislative and judicial functions.[30] The act of expulsion is inherently punitive and resembles a judicial function, as it involves determining the guilt or misconduct of a member.[31]

The risk of politically motivated actions increases when the legislature possesses the power to expel members. The majority opinion may inadvertently enable the ruling party or majority to target dissenting voices or opposition members, undermining the democratic process. The rights of members of the legislature are protected under the Constitution, and any punitive action, such as expulsion, should adhere to the principles of natural justice.

The judgment's assertion of an inherent power of expulsion may neglect the necessity of providing members with a fair hearing and the opportunity to defend themselves against allegations as the Parliamentary Committee may not follow due process and does not give them fair trial rights. Besides, these committees are not the judicial authority and should not get to decide such punitive issues. Allowing the legislature to expel members could undermine the independence of the judiciary. The judiciary serves as a guardian of the Constitution and the rights of individuals, including elected representatives.

If the legislature can unilaterally expel members, it may create a scenario where judicial oversight is circumvented, leading to arbitrary and capricious actions.[32] I agree with Justice Raveendran's recommendation that on pending criminal charges against members of Parliament, that member can be suspended temporarily, and subsequently the member can be tried by the Courts and if convicted he/she automatically becomes disqualified for being or continuing as a Member under Article 102(1) (e).[33]

Conclusion
While the Supreme Court's majority opinion affirmed Parliament's authority to expel its members, this decision raises significant constitutional concerns, particularly in relation to the limits of parliamentary privileges, preservation of democratic principles, and separation of powers. The historical and contextual differences between the British and Indian parliamentary systems, along with the comprehensive provisions laid down in the Indian Constitution and the Representation of the People Act, demonstrate that the power of expulsion was never intended to be an inherent privilege of Indian legislatures. Moreover, the selective use of foreign precedents, without proper consideration of India's unique constitutional framework, weakens the foundation of the majority's reasoning.

The Indian Parliament operates within a written Constitution that places a strong emphasis on judicial review, fundamental rights, and separation of powers, which necessitates a more restrained approach to legislative privileges. Ultimately, granting Parliament the power to expel its members not only risks undermining democratic representation but also blurs the lines between legislative and judicial functions. The potential for abuse of this power, particularly by the ruling majority, could threaten the principles of accountability and the rule of law.

As Justice Raveendran rightly pointed out, the Indian Constitution provides a clear and structured framework for disqualification and cessation of membership, leaving no room for an implied power of expulsion. Any punitive actions against members should be subjected to due process and judicial scrutiny to ensure fairness and protect the democratic fabric of the country.

End Notes:

1. Raja Ram Pal v Hon'ble Speaker, Lok Sabha (2007) 3 SCC 184 (SC).
2. ibid
3. ibid
4. Edward Kielley v William Carson (1842) 4 Moo PC 63, 13 ER 225 (PC).
5. ibid
6. In re Under Article 143, Constitution of India (UP Assembly Case) (1965) 1 SCR 413 (SC)
7. ibid
8. ibid
9. Anson, W. H., The Law and Custom of the Constitution (2nd edn, Clarendon Press 1885).
10. ibid
11. The Constitution of India 1950.
12. The Constitution (n 11).
13. The Constitution of India,1950 s. 79 – 105.
14. Raja Ram Pal (n 1).
15. ibid
16. ibid
17. ibid
18. ibid
19. ibid
20. ibid
21. Shubhankar Dam, 'Parliamentary Privileges as Facade: Political Reforms and the Indian Supreme Court' (2007) 2007 Sing J Legal Stud 162.
22. Raja Ram Pal (n 1).
23. Subhankar (n 22).
24. ibid
25. ibid
26. ibid
27. ibid
28. Raja Ram Pal (n 1).
29. Shruti Bedi, 'The Power to Punish for Contempt Under Parliamentary Privileges: An Analysis of the Inherent Limitations' (2009) 51 J Indian L Inst 79.
30. ibid
31. Shruti (n 30).
32. ibid