Union Executive – President

The first and foremost part of the Executive is the President.

Article 52 states that there shall be a President of India. The President is considered the Executive head of the country.
All the Executive business of the country is carried out in the name of the President.
He is not just personally liable for executive actions, he is infact aided and advised by the Council of Ministers. In
other words, practically, he hands over his executive powers to the elected Government. More specifically, the Council of
Ministers headed by the Prime Minister. Whenever a decision is taken by the Government, it requires the assent of the
President.
Although Article 53 of the Constitution of India states that the president can exercise his powers directly or by
subordinate authority, with few exceptions, all of the executive powers vested in the president are, in practice, exercised
by the prime minister (a subordinate authority) with the help of the Council of Ministers. The president is bound by the
constitution to act on the advice of the prime minister and cabinet as long as the advice does not violate the constitution.

Election of President – Article 54

The President shall be elected by the members of an electoral college consisting of –
(a) the elected members of both Houses of Parliament; and
(b) the elected members of the Legislative Assemblies of the States.

Explanation: In this article and in article 55, “State” includes the National Capital Territory of Delhi and the Union
territory of Pondicherry.

Qualifications of President - Article 58

Article 58 talks about the eligibility of a person to become President of India. It says that a person is eligible for election
as President if he:
- is a citizen of India;
- has completed the age of thirty-five years;
- is qualified for election as a member of the House of the People.
A person can be disqualified for election as President if he holds any office of profit under
- the Union of India or;
- the Government of any State or
- under any local or other authority subject to the control of any Government of India.

Condition of President’s Office – Article 59

The eligibility to become the President is comparatively simpler and more liberal than the conditions for occupying the
office of the president.
Article 59 of the Indian Constitution talks about the conditions of the President’s office :

1. The President cannot be a member of either House of Parliament or of any other House of the Legislature of
any State.
 2. If he is a member of either House of Parliament or a member of a House of the Legislature of any State, he will
need to vacate his seat in that House on the date of entering into his office as President.
3. The President shall not hold any other office of profit.
4. The President shall be authorized to the use of his official residences without rent. He shall be also authorized
to emoluments, allowances, and privileges determined by Parliament.

How is the President elected? – Article 55

As per Article 55(3) of the Constitution of India, the election of the President should be held according to the system of
proportional representation by means of a single transferable vote. It can be said to be an indirect election where
The President shall be elected by the members of an electoral college consisting of the elected members of both Houses
of Parliament; and the elected members of the Legislative Assemblies of the States.

The article hereby details the requirement for votes –

(1) As far as practicable, there shall be uniformity in the scale of representation of the different States at the
election of the President.
(2) For the purpose of securing such uniformity among the States inter se as well as parity between the States as a
whole and the Union, the number of votes which each elected member of Parliament and of the legislative
Assembly of each state is entitled to cast at such election shall be determined in the following manner; –

(a) every elected member of the Legislative Assembly of a State shall have as many votes as there are
multiples of one thousand in the quotient obtained by dividing the population of the State by the total number
of the elected members of the Assembly;
(b) if, after taking the said multiples of one thousand, the remainder is not less than five hundred, then the vote
of each member referred to in sub-clause (a) shall be further increased by one;
(c) each elected member of either House of Parliament shall have such number of votes as may be
obtained by dividing the total number of votes assigned to the members of the Legislative Assemblies of the
States under sub-clauses (a) and (b) by the total number of the elected members of both Houses of Parliament,
fractions exceeding one-half being counted as one and other fractions being disregarded.
(3) The election of the President shall be held in accordance with the system of proportional representation by
means of the single transferable vote and the voting at such election shall be by secret ballot.
The constitution-makers were faced with the question whether the President should be elected directly by the
people or not. Ultimately, they chose the indirect elective procedure so as to emphasize the ministerial character
of the executive that the effective power resides in the Ministry and not in the President as such.

Tenure of Office of the President

The normal tenure of the President is five years from the date on which he enters upon his office according to Article
56(1) but he continues to hold office even thereafter till his successor enters upon his office Article 56(1)(c).
The President may resign his office before the expiry of his normal tenure of five years by writing to the Vice-President
as given under Article 56(1)(a). The Vice-President has to communicate the President's resignation to the Speaker of the
Lok Sabha [Art. 56(2)].
Re-election of the president - Article 57
No specific time period is provided under Article 57 in terms of how many years a president can remain in the same
post or for how many tenures can the president get re-elected.
As a convention however, generally people occupying the post of the president do not succeed more than two terms.

In US – the president is eligible for re-election for two terms

- Earlier it was a convention and there was no particular bar on the tenure of re-election.
- But George Washington, the former US President stopped after two terms and that is when it was decided that
no president shall occupy the office beyond two terms following which it was codified.

Presidential oath – Article 60

1. The only executive oath which is provided in the constitution is that of the president under Article 60.
2. Oaths for other constitutional functionaries are provided under the IIIrd schedule
3. The oath is administered in presence of Chief Justice of India
4. Preserve, protect and defend the constitution – the important words and the duty bestowed upon the
president through the oath.

Questions over the office of the president

· Emergency period – the misuse of executive power by the Indra Gandhi regime
· Article 74 – There shall be a Council of Ministers with the Prime Minister at the head to aid and advise
the President who shall, in the exercise of his functions, act in accordance with such advice.

Because of this binding provision in the Constitution, the President of India has no choice but to accept the advice of
the council of ministers. The PM and his coterie of ministers are the ones who are directly elected by the people, so they
remain responsible for all their actions. The actions of this bunch are taken on behalf of the President. The executive is
the second restriction by which the President is bound by the Constitution to act on the recommendation of the Prime
Minister, and the final order is eventually issued by the President. Therefore, refusing the advice of the PM or denying it
for a long time without being able to appeal this judgment legally is beyond the President's control. The President can
ask the Council of Ministers to reconsider its advice. But if the same advice is given again, he/she is bound to act
according to it.

· The President appoints the Prime Minister and the council of ministers on advice of the Prime Minister ;
The President passes Ordinances on advice of the Council of Ministers ; The President issues summons for
Parliament sittings on advice of the Prime Minister ; The President can kick out any minister from the council on
advice of the Prime Minister.

Impeachment of the President – Article 61

When a President is to be impeached for violation of the Constitution, the charge shall be preferred by either House of
Parliament.
 (1) No such charge shall be preferred unless –
a) the proposal to prefer such charge is contained in a resolution which has been moved after at least
fourteen days’ notice in writing signed by not less than one-fourth of the total number of members of
the House has been given of their intention to move the resolution, and
b) such resolution has been passed by a majority of not less than two-thirds of the total membership of
the House.
(2) When a charge has been so preferred by either House of Parliament, the other House shall investigate the
charge or cause the charge to be investigated and the President shall have the right to appear and to be represented
at such investigation.
(3) If as a result of the investigation a resolution is passed by a majority of not less than two-thirds of the total
membership of the House by which the charge was investigated or caused to be investigated, declaring that the
charge preferred against the President has been sustained, such resolution shall have the effect of removing the
President from his office as from the date on which the resolution is so passed.

Ø No president has so far faced impeachment proceedings. However, the procedure has been laid down by the law
of the land. The President may be removed before his tenure through impeachment for violating the Constitution
of India by the Parliament of India. The process may begin in either of the two houses of the Parliament.
Ø Supreme Court inquires and decides disputes or ambiguities about the election of a President as per Article 71(1)
of the Indian Constitution. The Supreme Court can remove the President for the electoral misconducts or upon
becoming ineligible for Lok Sabha member as laid under the Representation of the People Act, 1951.

Powers of the President

1. Legislative Power - Ordinance making power

To meet an emergency situation in the country when Parliament is not in session, the power of issuing an Ordinance has
been conferred on the President under the conditions that ordinary law is not enough to tackle the situation. This power
is in contrast to England and the US where this sort of power does not exist. Ordinance making power with the
President is a case of subordinate legislation, where the actual law-making authority, Parliament delegates its power to the
executive, when the Parliament is in recess.

Article 123 gives the power to the President to promulgate Ordinances during recess of Parliament. It states –

1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that
circumstances exist which render it necessary for him to take immediate action, he may promulgate such
Ordinance as the circumstances appear to him to require
2) An Ordinance promulgated under this article shall have the same force and effect as an Act of
Parliament, but every such Ordinance
 a) shall be laid before both House of Parliament and shall cease to operate at the expiration of six
weeks from the reassemble of Parliament, or, if before the expiration of that period resolutions
disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
b) may be withdrawn at any time by the President

3) If and so far as an Ordinance under this article makes any provision which Parliament would not under
this Constitution be competent to enact, it shall be void.

Checks on ordinance promulgation –

1. When legislature is not in session: the President can only promulgate when either of the House of Parliament
is not in session.
2. Immediate action is needed: the President though has the power of promulgating the ordinances but same
cannot be done unless he is satisfied that there are circumstances that require him to take immediate action.
3. Parliament should approve: after the ordinance has been passed it is required to be approved by the parliament
within six weeks of reassembling. The same will cease to operate if disapproved by either House.

Important features of ordinances –

1. Ordinances can be introduced only on those subjects on which the Indian Parliament can make laws.
2. Ordinances cannot take away any rights of citizens that are guaranteed by the Fundamental Rights of the Indian
Constitution.
3. Ordinance ceases to exist if parliament takes no action within six weeks from its reassembly
4. Ordinance also stands void if both the houses pass a resolution disapproving the ordinance
5. The maximum life of an ordinance can be six months and six weeks.

In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the constitutionality of the Banking
Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalise 14 of India’s largest commercial
banks, held that the President’s decision could be challenged on the grounds that ‘immediate action’ was not required;
and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.

Role of Cabinet in Ordinance promulgation

President is only the Nominal head or constitutional head of the executive with the real executive powers is vested in the
Ministers or the Cabinet. The aid and advice of the Ministers are mandatory while exercising the executive power of the
President, and any such act without the advice of the Council of the Ministers shall be unconstitutional as being violative
of Article 74(1). Due to this reason, every act of ordinance promulgation would have some element of cabinet influence
in it which makes the veracity and politically uninfluenced state of the ordinance questionable.

Challenges to the power of ordinance promulgation

(https://www.legalserviceindia.com/legal/article-1981-promulgation-of-ordinances-and-abuse-of-provisions.h
tml)
 1. Subjective satisfaction of the president
One of the essentials to be kept in mind while passing an ordinance is that the President should be satisfied; that
circumstances exist that requires immediate actions on part of the President. The apex court has not yet defined
‘satisfaction of the President’ and even whether the subjective satisfaction of the President can be questioned in the
Court of Law. To clearly clarify the said ambiguity, Indira Gandhi led Government passed the 38thConstitutional
(Amendment) Act, 1975 which has expressly excluded the subjective satisfaction of the President outside the purview of
Judicial Review. Further in 44th(Amendment) Act, 1978 deleted this clause, holding that the power of President could be
challenged in the Court of Law if it is based on bad faith, corrupt motive or had any mala fide intention.

In the case of S.K.G.Sugar Ltd v. State of Bihar, AIR 1974 SC 1533 it was held that promulgating of an Ordinance by
the Governor is purely upon the Subjective Satisfaction of him and he is the sole Judge to consider the necessity to issue
the Ordinance and “his satisfaction is not a justiciable matter”.

In Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198, the Apex court over ruled its own decision and held
that the Satisfaction of the President cannot be called in question in the Court of law and is out of Judicial Review.

Scope of Judicial Review in Ordinance Promulgation

What about article 361?

In the case of A.K. Roy v. Union of India the Supreme Court while examining the constitutionality of the National
Security Ordinance, 1980 which was issued to provide for preventive detention in certain cases, the Supreme Court
argued that the President’s power of making Ordinances is not beyond the Judicial Review of the court. However, the
Court was unable to explore the issues of the case further as the ordinance of the President was replaced by an Act. The
court also pointed out the need to exercise judicial review over the President’s decision only at substantial grounds and
not otherwise at every ‘casual challenge’.

Further in the case of S.R. Bommai v. Union of India, AIR 1994 SC in this case the scope of Judicial Review was
expanded as to where the court told that where the action by the President is taken without the relevant materials, the
same would be falling under the category of “obviously perverse” and the action would be considered to be in bad faith.
The Supreme Court held that the exercise of power by the President under the Article 356(1) to issue proclamation is
Justiciable and subject to Judicial Review to challenge on the ground of mala fide.
Unique nature of ordinances

In the case of D.C. Wadhwa v. State of Bihar, the State of Bihar’s promulgating and re-promulgating ordinances were
challenged as there was promulgation of the same in “massive scale”. Between the year 1967-81, 256 ordinances were
promulgated and then re-promulgated and some among them remain into existence for up to 14 years. Chief Justice P.N.
Bhagwati observed:
“The power to make an ordinance is to meet an extraordinary situation and it should not be made to meet political
ends of an individual. Though it is contrary to democratic norm for an executive to make a law but this power is given to
the President to meet emergencies so it should be limited in some point of time.”
Legislative Privileges
Parliamentary or Legislative privilege refers to the right and immunity enjoyed by legislatures, in which legislators are
granted protection against civil or criminal liability for actions done or statements made in the course of their legislative
duties.
Article 105 and Article 194 provides for powers, privileges, and immunities of Members of Parliament [“MPs”] and State
Assemblies respectively.

Historical Connect of Common Law

The concept of parliamentary privileges in India in its modern form has been imported from the practices of the British
House of Commons since it has served as a model for the Indian legislatures. The Constituent Assembly adopted a
transitory provision permitting the British practices to continue in the Indian Legislatures till the Parliament decides to
codify the law on parliamentary privileges.

ARTICLE 105

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.

Importance –

Parliamentary privilege, and immunity with respect to the exercise of that privilege are founded upon necessity because
they are judges necessary to the discharge of their legislative function. Intent behind the same was rational given that
MPs are special representatives of society having higher burdens to discharge and in the process are susceptible to
impediments affected by subjective considerations like personal biases or political objections which might impair their
ability to discuss upon societal issues without personal threats and apprehensions.
Different Freedoms of Speech

The members of the parliament have been vested with the freedom of speech and expression. As the very essence of our
parliamentary democracy is a free and fearless discussion, anything said by them expressing their views and thoughts are
exempted from any liability and cannot be tried in the court of law. The words spoken or gestures exhibited is exempted
from court proceedings and in order to claim the immunity, what needs to be shown is only that Parliament was sitting
and that its business was being transacted.

The freedom of speech and expression guaranteed to a citizen under Article 19(2) is different from the freedom of
speech and expression provided to a member of the parliament guaranteed under Article 105(1) of the Indian
constitution. Article 19 is a general clause with its constitutionally provided set of restrictions whereas articles concerning
privileges are special clauses which do not per se have constitutionally imposed restrictions. An organic conflict comes
into picture when two constitutional provisions on the same subject matter exist as to which shall take precedence and
under what conditions. In such cases, courts have held that Article 105 being a specific clause would take precedence
over Article 19.
The implication here is that members of the parliament are being treated differently from ordinary citizens in terms of
what they can speak and express inside the parliament. The distinction between article 105 being a constitutional rights
vs. article 19 being a fundamental right within the broad ambit of constitutional right has often been ignored.

The instances and possibilities of misuse has been several.

a. Incumbents have invoked legislative privileges to target political opponents and critics, often in cases that
are better suited for adjudication by the courts.
b. They have also been used as a method of disciplinary control in response to allegations of wrongdoing by
lawmakers.
c. Such substitution appears to be a faster response to corrupt practices by legislators when compared with
the slow pace and dilatory nature of judicial proceedings.

Accordingly, privileges can be viewed as instruments to combat wrongdoing within the legislature apart from serving as a
shield against undue external pressures. However, the discretionary use of privileges by legislative committees has often
deviated from the procedural safeguards expected of adversarial settings. The stakes are high when they adopt
inquisitorial methods to suspend or remove serving legislators.

Pandit M. S. M. Sharma vs. Shri Sri Krishna Sinha and Others, AIR 1959

Facts - A member of the Bihar Legislative Assembly had criticized the incumbent Chief Minister (respondent) during
the budget discussions for 1957–58. The remarks made on 30 May 1957 suggested that the respondent had appointed
ministers and improperly transferred civil servants on the advice of another politician who had previously served as
Industry Minister but had lost the most recent elections. These attacks were objected to and the Speaker decided to
expunge most of the references to the name of the former minister from the official records. On 31 May 1957, The
Searchlight newspaper carried a news item that reported the contents of the previous day’s speech and published the
name of the former minister. The assembly then issued a notice of breach of privileges to the editor and publisher of
The Search Light for reporting the redacted remarks. They were given until 8 September 1958 to appear before the
assembly’s privileges committee, which was headed by the respondent.

Contentions –

Petitioner: The act of expunging parts of the publication abridges his Right to Freedom of Speech enshrined under
Article 19(1)(a) of the Constitution of India.
Respondent: State Legislative Assembly can exercise similar powers, privileges & immunities as the British Parliament's
House of Commons when the Constitution of India was enacted, i.e. 26th of January, 1950. Hence, the proceedings of
the house cannot be treated as an ordinary course of action and relevant parts of the parliamentary privileges can be
expunged.

Issue –
a. Could the British house of commons (BHC) entirely prohibit publications of its proceedings or even
portions of it which have been directed to be expunged and Assuming that the BHC had such power and
consequently state legislature also had this power under 194 (3)?
b. Whether these privileges would prevail over the freedom of speech and expression of the petitioner under
Article 19(1)(a)?

Judgement – Majority

1. Whether there could be a prohibition on publication of parliamentary conducts by the state legislature of
Bihar under its exercise of parliamentary privileges?

The court opined that there was no statute existent in the Legislature of Bihar under - Entry 39, List II, Seventh
Schedule, of the Constitution of India, related to the powers, privileges and immunities of the House. Hence, all the
Houses of the Legislative Assembly of Bihar reserves the said powers, privileges and immunities as that of House of
Commons at the onset of the Constitution of India.

It was noted by the court that the House of Commons imposed restrictions on publication of its proceedings since 1641.
A standing order in this regard was issued stating that no member shall communicate in print any speech or proceedings
that took place in the House. The said Standing Order was not amended or repealed, hence it stands in force. The court
concluded that at the time of the onset of the Constitution of India i.e. 26th January, 1950, the House of Commons
reserved a right to impose the said restriction. As per this observation, the court opined that the Legislative Assembly of
Bihar also had the same powers as that of the House of Commons as it had not enacted any statute in this regard.

2. Prevalence of Article 19(1)(a) or Article 194(3)?

The Petitioner argued that Article 19(1)(a) of the Constitution prevailed over Article 194(3) of the Constitution which
means that Article 194(3) is subject to Article 19(1)(a).
The Court rejected this argument on the basis that the language of Article 194 subjected only “clause (1) expressly to
other provisions of the Constitution”. On the other hand, “clause (2) to (4) of Article 194 had not been stated to be so
subject. Hence it can be assumed that Constitutional makers did not intend to subject those clauses to other provisions
of the Constitution.” Therefore, Article 194(3) was not subject to Article 19(1)(a) of the Constitution.
Court also noted that in cases of conflict, both Article 19(1)(a) & Article 194(3) stand out to have equivalent importance
and one of them cannot be provided any privilege over the other. In cases of such a conflict, the principle of
‘Harmonious Construction' shall adopted, relying upon which, Article 19(1)(a) stands general and Article 194(3) stands
special. It is a rule that specific must prevail over general law in case of irreconcilable conflict and hence the freedom of
speech accorded to members of the state legislative assembly would take precedence over the general freedom of speech
of the press.

Court while giving preference to the privilege accorded to the parliamentarians and members of state assemblies noted
that while there was a public interest in being informed about legislative proceedings through the press, the
legislature should retain control over such publication to prevent inaccurate reporting or commentary that
might cause or contribute to hindrances in its functioning. The majority also favoured the respondents on the
second question, by observing that the exercise of legislative privileges under Article 194(3) could trump the
freedom of speech and expression under Article 19(1)(a), since the former was a special protection accorded to
legislatures in contrast to the general applicability of the latter provision.

Dissenting - Subha Rao

We are fine with the idea that till now there is no law. But if tomorrow, there is a law, will you not test it on the basis of
Article 13? It will regulate Parliamentary Privileges and so, it will be subject to FR. Does the fact that there is no
codification of practice give you enough freedom to say that FR must remain subservient to Parliamentary privileges? FR
is an individual centric approach and FR are a combo of individual and collective rights. Starting clause says “subject to
provisions of constitution”, so how can you say it will be superior to FR? He further argued that the protections
accorded to legislators under Article 194(1) were constrained by other provisions in the Constitution, including the
fundamental rights. Hence, Article 194(3) should also be construed in light of limitations placed by the freedom of
speech and expression that is available to all citizens. The dissenting judge opined that Article 194(3) was better
described as a transitory provision, which should not be preferred over a fundamental right.

Scope of Judicial Scrutiny over Parliamentary Privileges

Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha

Facts - A private channel had broadcast a sting operation against 10 MPs of House of People(Lok Sabha) and one
Council of State (Rajya Sabha) accepting money, directly or through middleman for raising question in the Parliament.
This received much publicity in media, after which the Presiding Officer of each House of Parliament conducted
inquires against the alleged members. Based upon the report of Inquiry Committee, a motion of expulsion was passed
from both the House of Parliament.

Issue:

a. Whether under Article 105 the Parliament has right of expulsion

b. Whether such expulsion be subject to judicial review.

Contentions –

A. Petitioner

a. The petitioner contended that the House of Commons had the power of expulsion as a result of its power
to punish for contempt in its capacity as a High Court of Parliament but such status was not accorded to the
Indian Parliament and hence it does not have the right to expel members.

3. Article 105(3) does not bless the Parliament with the Right of Expulsion.

4. The Supreme Court is the final arbitrator of all constitutional issues and that it cannot be left upon the organs
of the State to determine the legality of its own action.

B. Respondents
 a. The Parliament possesses the exclusive right to expel its members after holding due inquiry and
proceeding within the walls of the Parliament free from any interference. And that the Parliament is the final
Judge in such matters.

b. For defensive and protective purposes the Parliament possesses the exclusive power to punish for
contempt.

Judgement – Majority

“On perusal of the Inquiry reports, we find that there is no violation of any of the fundamental rights in general and
Articles 14, 20 or 21 in particular. Proper opportunity to explain and defend having been given to each of the petitioners,
the procedure adopted by the two Houses of Parliament cannot be held to be suffering from any illegality, irrationality,
unconstitutionality, violation of rules of natural justice or perversity. It cannot be held that the petitioners were not given
a fair deal.”

Observations of the case –

Judiciary held that there would be judicial intervention but only to the extent that is necessary and permissible on their
part, which is only when legislature’s constitutional duties are deviated from and violated. They upheld separation of
power as well as constitutionalism –

· It would be presumed that Parliamentary privileges would be reasonably revised and kept in trend and the
constitutional presumption of such privileges being upright would prevail unless rebutted.

· Parliament is an august body but that there can be JUDICIALLY MANAGEABLE STANDARDS to
overlook the same – the definition of the same can be, if you deviate from constitutional standards, then
judicial reasonability would become imperative.

Ø The ordinary idea of judicial review was not to be applied in cases of parliamentary privileges – the judiciary
would not question the substantive areas unless there is a clear, gross and apparent violation of constitutional
principles.

Court also noted the stakeholders in such cases –

a. We are dealing with two set of people, people inside and outside the parliament. Legislative privilege cannot subvert
fundamental rights and any deviation from principles of constitutionalism and natural justice would necessarily involve
judicial interference.

b. If a citizen, whether a non-member or a member of the legislature, complains that his FRs under Article 20 or 21
have been contravened, it is the duty of the court to examine the merits of the said contention, especially when the
impugned action entails civil consequences. (even if you are within the house, or those who are not the part of
parliamentarians or law-makers, no one should be prone to a take away of their FRs. legislative privileges are available
only to MPs.)

GUIDELINES – PAGE 24 OF ANUSHKA’S GOOGLE DOC

Can right to expulsion be covered under the ambit of article 105?

On question of whether article 105 entail a right of expulsion, court held that in addition to the explicit conditions for
disqualification, privileges can be used in a discretionary manner to act against the misconduct of members which brings
disrepute to the entire chamber and thereby obstructs the legislative process. The right to vote is a statutory right and
not fundamental or constitutional rights. Therefore power of expulsion is not contrary to democratic principle.

Court noted that – “It is not possible to accept the submission that the termination of membership can be effected only
in the manner laid down in Articles 101 and 102. While these articles do speak of qualifications for and continuation of
membership, in our view they operate independently of Article 105(3). Article 105(3) is also a constitutional provision
and it demands equal weight as any other provision, and neither being 'subject to the provisions of the constitution', it is
impossible to accord to one superiority over the other. We cannot accept the submission that the provisions in Articles
101 or 102 restrict in any way the scope of 194(3).”
Court further noted that though disqualification and expulsion both result in the vacancy of a seat, there is no necessity
to read one in a way that restricts the scope of the other. The expulsion on being found unfit for functioning within the
House in no way affects the qualifications that a member must fulfil, and there is no reason for the latter to affect
expulsion.
Hence court noted that power of expulsion does not come into conflict with any of the constitutional provisions and is
enforceable as a part of article 105.

Minority –

Justice R. V. Raveendran held an opposing view that there is no power of expulsion in the Parliament, either
inherent or traceable to Article 105(3). Expulsion by the House will be possible only if Article 102 or Article 101
is suitably amended or if a law is made under Article 102(1)(e) enabling the House to expel a member found
unworthy or unfit of continuing as a member. He held that the power of expulsion exercised by the Parliament was
violative of Article 101 to 103 of the Constitution and hence invalid.

Fundamental Rights and Privileges

Facts –

On 14 March 1964 the Speaker of the Uttar Pradesh Legislative Assembly issued a notice for breach of privileges against
one Keshav Singh who had circulated a pamphlet that criticized a serving legislator. Later that day, the Speaker issued an
arrest warrant against Keshav Singh, citing the latter’s disruptive behaviour on receiving the notice as well as a previous
letter sent to the Speaker, which was described as disrespectful. Consequently, Keshav Singh was detained for seven days
at the District Jail in Lucknow.

· Keshav Singh’s lawyer approached the Lucknow bench of the Allahabad High Court under Article 226
through a writ of habeas corpus. A two-judge bench heard the matter and directed the detainee’s release on the
next day. However, on 21 March 1964 the assembly responded aggressively by issuing a fresh notice of breach
of privileges to the two judges (for entertaining the matter even though the writ was not granted), Keshav
Singh (for going to the court against the conduct of legislature), and his lawyer (for representing Keshav Singh).
They were found to be in contempt of the legislature and the notice required them to be produced in custody
before the House.

· The affected parties approached the Allahabad High Court to challenge the validity of the assembly’s
actions. Allahabad High Court heard the case, an interim order was passed prohibiting the implementation of
the resolution the validity of which was challenged by the petitioner. The House passed a clarificatory
resolution. This resolution began by expressing reservations about the House’s motion, which might be
interpreted as denying the parties involved an opportunity to explain themselves, and it added that The House
never intended for an allegation of breach of privilege or contempt levelled against a High Court Judge to be
 handled differently from a charge of breach of privilege or contempt levelled against anybody else. The House
concluded that the subject of contempt may be decided once the persons mentioned in the original resolution
were given an opportunity to explain themselves. The warrants for the arrest of the two learned Judges and Mr.
Solomon were withdrawn as a result of this resolution, and the two learned Judges and Mr. Solomon were
ordered to appear before the House and explain why the House should not proceed against them for alleged
contempt of the House.

· When the incidents had progressed to this point, the President decided to use his powers under Article
143(1) of the Constitution to refer the matter to this Court since the President believed that the events in
question had resulted in a severe conflict between a High Court and a State Legislature, including important
and complicated question of law related to the High Court’s and Judges’ rights and jurisdiction in respect to the
State Legislature and its officers, as well as the State Legislature’s and members’ powers, privileges, and
immunities in reference to the High Court and its Judges in the fulfilment of their duties.

Contentions –

Petitioner

· The House does not possess any penal jurisdiction and has no power to punish any person for its
contempt.
· Detention of the petitioner is illegal since it is in violation of Article 22(2) of the Constitution. The
conviction of the petitioner by the House was in violation of the provisions of Articles 21 and 22(1) and of the
principles of Natural Justice.

Respondents

· The House possesses penal jurisdiction under Article 194(3) and since it is also a court of record, it can
punish persons for its contempt.
· Provisions of Part III of the Constitution are not relevant to a case falling under Article 194(3) of the
Constitution; the former always yield to the later.

The Court emphasized that these three organs must function rationally and harmoniously.

Article 211 of the Constitution disentitles the State Legislature from discussing the conduct of a High Court Judge in the
Assembly; therefore, the House cannot take any action against a High Court Judge for anything done in the discharge of
his duties. The Supreme Court also held that the right of the citizens to move the judiciary and the right of the advocates
to assist that process must remain uncontrolled by Articles 105(3) or 194(3).

Drawing a parallel from the common law position, the SC said that the House of Commons could commit a person for
contempt only by a non-justifiable general warrant, as a superior court of record in the land and not as a legislature.
Since Parliament and the State Legislatures in India have never been court of Records, so they can never claim such a
privilege because of the existence of the Fundamental Rights and the doctrine of judicial review; particularly Articles 32
and 226, which not only empower the Supreme Court and High Courts but impose a duty on it to enforce Fundamental
Rights. Thus, a court can examine an unspeaking warrant of the House as a legislative order punishing a person for its
contempt is not incontrovertible.

It was observed that the ‘powers, privileges and immunities’ available to legislative bodies in India were bound by other
parts of the written Constitution and since the judiciary performs the primary role in enforcing them, it should have the
power to review a privileges motion. These views rest on the premise that the legislature’s powers to punish for
contempt are not absolute and are considerably narrower than the analogous power of the courts. The facts
demonstrated how legislative privileges could be used without giving a fair hearing to those who face the prospect of
detention, which is a direct curtailment of the liberty interest enumerated under Article 21.

Tej Kiran Jain v. N Sanjeeva Reddy 1970

Facts - The appellants filed a suit for damages in respect of defamatory statements made by the respondents, who were
members of Parliament, on the floor of the Lok Sabha during a calling attention motion.
2) The High Court dismissed the suit holding that no proceedings could be taken in a court of law in respect of what
was said on the floor of Parliament in view of Art. 105(2) of the Constitution. However, it certified the case as fit for
appeal to the Supreme Court under Art. 133 (1) (a) of the Constitution.

Background - The appellants claim to be the admirers and followers of Jagadguru Shankaracharya of Goverdan Peeth,
Puri. In March, 1969 a World Hindu Religious Conference was held at Patna where the Shankaracharya took part and is
reported to have observed that untouchability was in harmony with the tenets of Hinduism and that no law could stand
in its way and to, have walked out when the National Anthem was played. On April 2, 1969 Shri Narendra Kumar Salve
moved a Calling Attention Motion in the Lok Sabha and gave particulars of the happening and cursed the
Shankaracharya. The appellants who hold the Shankaracharya in high esteem felt scandalized and brought the action for
damages.

Judgement - Supreme Court held that Article 105 (2) of Indian Constitution clearly states that “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 hence, the court has nothing to say in this matter and should have none. The
appeal failed and the case was dismissed. Hence there shall be no order about it. Hence, the decision under the appeal
was held to be correct and the appeal was dismissed.

Analysis – Privileges are conferred on each House so that it may vindicate its authority, prestige and power and protect
its members from any obstruction in the performance of their parliamentary functions. Legislative privileges are deemed
to be essential in order to enable the House to fulfil its constitutional functions, to conduct its business and maintain its
authority. Relating this to the current case, the calling of attention motion and discussing Shankaracharya’s remarks on
untouchability might also seem to be something which would not in any way hinder the functioning of parliamentary
duties and obligations and might seem to be irrelevant to some people. But then again, this matter seems to be relevant
in a country like India whose very soul is secularism and parliament cannot function properly if it doesn’t take into
account feelings and dignities of each and every religion.

361A. Protection of publication of proceedings of Parliament and State Legislatures.

(1) No person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a
newspaper of a substantially true report of any proceedings of either House of Parliament or the Legislative Assembly,
or, as the case may be, either House of the Legislature, of a State, unless the publication is proved to have been made
with malice:

Provided that nothing in this clause shall apply to the publication of any report of the proceedings of a secret sitting of
either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature, of a State.
(2) Clause (1) shall apply in relation to reports or matters broadcast by means of wireless telegraphy as part of any
programme or service provided by means of a broadcasting station as it applies in relation to reports or matters
published in a newspaper.

Corruption and Privileges

PV Narsimha Rao vs. State (CBI) 1998

Facts - The lead petitioner, PV Narasimha Rao was the Prime Minister of India between 1991 and 1996. He headed the
Congress Party, which occupied the highest number of seats in the Lok Sabha at the time but did not enjoy a simple
majority. The demolition of a mosque at a disputed site by Hindu right-wing extremists in Ayodhya had provoked
communal violence in several parts of the country. The Union government faced considerable criticism for its inability to
prevent and control this violence. Consequently, it dismissed several State governments run by opposition parties,
principally the Party BJP. In this environment of distrust, a no-confidence motion was moved against the Union
Government. The government went on to complete its full term, since 265 MPs supported its continuance while 251
MPs voted against it. Subsequently, the Central Bureau of Investigation (CBI) uncovered evidence implicating the
petitioner and some party colleagues for offering bribes to MPs from two smaller parties. This was allegedly done to
procure their votes or to ensure abstentions during the no-confidence motion. The CBI initiated proceedings and sought
the requisite sanction to prosecute the legislators.

Issue – Are the legislators protected from proceedings for an alleged act of corruption under Article 105?

Contention of the respondents - The accused legislators resisted this by arguing that the acts related to the
no-confidence motion were immune from prosecution owing to their legislative privileges.

Judgement –

Majiority – Most of the legislators could not be prosecuted since the alleged misconduct was closely connected to
voting inside the legislature and was hence protected by Article 105(2). A distinction was drawn between ‘bribe givers’
and ‘bribe takers’ to hold that the former could be prosecuted but those who accepted bribes and voted in the
no-confidence motion could not be proceeded against.

Minority - The dissenting opinion explained that legislative privileges could not bar prosecution for accepting bribes,
even if that was closely connected to legislative functions such as speaking and voting inside the chamber.
In the aftermath of this case, which attracted widespread criticism for evidently letting go of instances of corruption
under the garb of Article 105, the National Commission to Review the Working of the Constitution (NCRWC) was
constituted and it had recommended an amendment to Article 105 to explicitly exclude corrupt acts from its ambit

Criminal Acts to be excluded from Parliamentary Privileges

State of Kerala v. KAjeet 2021

Facts – This is a case dealing with ruckus created in Kerala Legislative Assembly wherein legislators went up to dais,
standing on stage and destroyed property belonging to the government. The speaker suggested to criminally prosecute
these members wherein a law dealing with destroying property and punishment that can be imposed for it. So, these
members were booked who then went to HC and said that they were erroneously booked. Their contention was that
since they have parliamentary privileges, all sorts of actions and expressions are protected from prosecution.
Issue - Upon an appeal to the SC, the question arises whether acts of physical destruction and vandalism can be
considered to be protected under parliamentary privileges, and would such members be immune from prosecution for
such criminal actions?

Judgement –

Analysing upon the constitutional and historical background of the parliamentary privileges available, court explained
that –

As per Article 194(3), the present position is that the ultimate source of the powers, privileges and immunities of a
House of a State Legislature and of the members and committees would be determined by way of a legislation; Until
such legislation is enacted, the position as it stood immediately before the coming into force of Section 26 of the
Constitution (44th Amendment) Act, 1978 would govern. Since the Parliament is yet to enact a law on the subject of
parliamentary privileges, according to Article 194(3), the MLAs shall possess privileges that the members of the House
of Commons possessed at the time of enactment of the Constitution.

In such a view of the matter, the Court referred to English judgments on whether criminal offenses committed within
the precincts of the House of Commons are covered under ‘parliamentary privileges’, receiving immunity from
prosecution.
The Court found that even in the United Kingdom, a person committing a criminal offense within the precincts of the
House does not hold an absolute privilege. Instead, he would possess a qualified privilege, and would receive the
immunity ‘only if the action bears nexus to the effective participation of the member in the House’.
In the Indian context, the Court relied on Raja Ram Pal v. Speaker, Lok Sabha and noted that the principle which
emphatically emerges is that whenever a claim of privilege or immunity is raised in the context of Article 194(3), the
Court is entrusted with authority and jurisdiction to determine whether the claim is sustainable on the anvil of the
constitutional provision.

Acts of physical destruction

“The persons who have been named as the accused in the FIR in the present case held a responsible elected office as MLAs in the Legislative
Assembly. In the same manner as any other citizen, they are subject to the boundaries of lawful behavior set by criminal law. No member of
an elected legislature can claim either a privilege or an immunity to stand above the sanctions of the criminal law, which applies equally to all
citizens.“
The entire foundation upon which the application for withdrawal under Section 321 was moved by the Public
Prosecutor was based on a fundamental misconception of the constitutional provisions contained in Article 194. The
Public Prosecutor seemed to have been impressed by the existence of privileges and immunities which would stand in
the way of the prosecution. Such an understanding betrays the constitutional provision and proceeds on a misconception
that elected members of the legislature stand above the general application of criminal law. The Court observed:

“Privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law
which governs the action of every citizen.“

The Court finally held that an alleged act of destruction of public property within the House by the members to lodge
their protest against the presentation of the budget cannot be regarded as essential for exercising their legislative
functions. The actions of the members have trodden past the line of constitutional means, and is thus not
covered by the privileges guaranteed under the Constitution.
Protection from Publication

The appellants submitted that the incident occurred on the floor of the House and was a ‘proceeding’ of the House.
According to Article 194(2), no legal proceedings can be initiated against any member in respect of the publication, by or
under the authority of the House, of any report, paper, votes or proceedings.
On this question, court held that –

“When the recording of such an incident is itself without authority, the publication/broadcasting of it would also have
no authority of the House. Thus, though the video recording of the incident that was broadcast in the local and national
news channels would fall within the purview of the word ‘publication’, it did not have the authority of the House to be
recorded, and thus the members cannot be granted immunity.

Privileges to be exercised in connection to Legislative Capacity

Amrinder Singh v. Special Committee, Punjab Vidhan Sabha

Facts - The present case challenges a resolution passed by the Vidhan Sabha of Punjab expelling Captain Amarinder
Singh (Appellant) as member of the 13th term of the Vidhan Sabha. The reasons for his expulsion from the legislative
assembly arise from a criminal misconduct the Appellant indulged in during the 12th term of the Vidhan Sabha – when
he was the Chief Minister of the State (“CM”). The resolution and the Committee report were challenged before the
Punjab and Haryana HC by the Appellant. The HC issued an order directing that the case be heard on merits but did not
grant a stay on the operation of the impugned resolution; but granted protection to the Appellant from custodial
interrogation. The Appellant thereafter moved to the Supreme Court (SC) seeking a special leave. The special leave was
admitted by a division bench and the matter was directed for hearing by a three-judge bench.

Issue -

Whether the alleged misconduct on part of the appellant and the petitioners warranted the exercise of legislative
privileges under Article 194(3) of the Constitution?

Judgment - The court sided with the contentions advanced by the Appellant primarily for the reason that the alleged act
of the Appellant was done in his executive capacity during the 12th term of the Vidhan Sabha, thereby not systematically
distorting or affecting the functioning of the Vidhan Sabha in its 13th term. In substance, Parliamentary Privileges do not
have plenary application. They are to be exercised only to the extent of maintaining the integrity of the
legislature and to not let the functioning of it get distorted. Correct mode to expel a person under the scheme
of PPs under Article 194(3) would be to expel a person only when his/her act distorts the functioning of the
legislature, or in a situation where a member has been found guilty of one the alleged crimes against him/her,
the legislature should proceed to expel him from the house vide the Representation of People’s Act, 1951 – which
provides criteria for such expulsion.

Analysis - the decision was correct when the Punjab Vidhan Sabha committed a substantive jurisdictional error by
exercising powers under Art. 194(3) to inquire into Amarinder Sing's actions which were taken in his executive capacity.
The conduct could not be viewed as obstructing the ordinary functions of the House

Critical Analysis –
 Ø The legislative privilege must come into picture only when something (serious and concerning enough) that
is spoken interferes with the smooth functioning of the legislature
Ø This should not be applicable in cases where the members speak anything according to their whims –
because not everything spoken is grave enough to interfere with legislature proceedings – this has been misused
to slap people with LP
Ø If something is already spoken and it is in the public domain – then there is no point of using LP since it is
accessible already and if it was considered derogatory, then it shouldn’t have been spoken in the first place

Codification of Parliamentary Privileges

The present set of uncodified privileges draws from the post-independence backdrop of September 1949, when the
question of codifying these privileges and enacting a legislation for the same, was raised by the Conference. The
Chairman, G. S. Mavlankar expressed contrary opinion where he was of the view that it is better not to define specific
privileges at that moment but to rely upon the precedents of the British House of Commons. He remarked – “The
disadvantage of codification at that moment was that whenever a new situation would arise, it will not be possible for
Legislation to adjust themselves to it and give members additional privileges. In the set-up at that time any attempt at
legislation will very probably curtail privileges.
However, in contemporary context where the legislative body is answerable to the people and a considerable experience
in terms of democratic exercise of power and constitutional principles have been reaffirmed through laws and policies, it
would be redundant to say that legislature should still possess such unqualified powers. The people of India, through the
Constitution, have conferred these rights on members to be exercised by them collectively and individually in their
capacity as representatives of the people in the wider interest of the people. Any argument in favor of not codifying the
privilege prima facie seems that there is malice in intension rather than any genuine good cause for not restricting and
properly defining the scope and ambit of the parliamentary privileges. It is time to define and delimit the privileges for
the free and independent functioning of the legislature Codification as to what nature of speeches and expression shall
be excluded from protection in accordance with bare minimum restrictions imposed under Article 19(2) would provide
safeguards against malicious and inciteful remarks or expressions of physical obstruction. On a larger view, Article 105(3)
and 194(3) must be amended as so far as there is no general sense of ambiguity as to what exactly are the privileges and
immunities, that the members of parliament and state legislative assembly would enjoy. The scope of parliamentary
privileges must be well-defined and constitutionally defined keeping in mind the present societal considerations. There
should be a litmus test, that no privilege of Parliament or a member of Parliament will be extended so far that it will
prima facie go against the fundamental rights of the individuals and obstruct natural justice.