By Athik Saleh
Introduction
In a parliamentary democracy, the Parliament is the supreme law-making body. The holiness of the Parliament in a democratic setup is something that cannot be easily disregarded. It is where elected representatives discuss and deliberate upon policies that determine the present and future of a nation.
In the Westminster model of government, the position that the Parliament occupies is such a position that there is a concept of ‘parliamentary sovereignty’ in existence.
In India as well, a parliamentary democracy that follows the Westminster model, the place held by the Parliament and the elected representatives is one of utmost respect. India has been blessed with some outstanding parliamentarians like Raj Narain, Atal Behari Vajpayee, Sushma Swaraj, Arun Jaitley, K. Kamraj, etc.
However, the Indian Parliament has been in the news for all the wrong reasons during the 2021 Monsoon Session.
The Indian Government has been embroiled in a myriad of controversies before the Monsoon Session began this year – both old and new. The opposition was waiting in tow to attack the Government about the mishandling of COVID-19, the farm bills, etc.
Opposition got a new weapon when on the evening of June 18, a news report alleging the use of spyware to hack Indian journalists came out. Every day after that, it’s been claimed that various other Indian personalities including politicians have been hacked with the said spyware.
The spyware in question is called ‘Pegasus’ and the opposition alleges that the Indian Government is the responsible party for this hacking and snooping. The government denied it time and again.
This row reached new heights when on July 22nd, Trinamool Congress (TMC) party MP, Santanu Sen snatched papers from the hands of Minister of Electronics and Information Technology, Ashwini Vaishnaw, and tore the papers apart.
From the beginning of the Monsoon Session, disruptions have been hampering the normal functioning of both houses of the parliament. Adjournments after adjournments have become the norm. A dysfunctional parliament severely hampers a country’s potential to function.
The financial cost aside, the cost of not discussing on important issues, not passing bills, etc. is costlier to the nation than purely monetary loss.
One of the most common things Indian’s wonder when they watch the representatives they sent to the parliament (Lok Sabha) and those they elect indirectly (Rajya Sabha) create a ruckus and behave like hooligans without discussing or deliberating upon those matters that need discussion – “is there no law that sanctions such misbehavior from the part of members of parliament?” This article is an attempt to understand the legal side of this particular issue.
What are the Privileges Enjoyed by Members of the Parliament?
Unlike normal citizens, the members of Parliament enjoy certain privileges. It is essential to the proper functioning of the Parliament that the members are not tied to the laws and regulations that govern the actions and activities of the citizens. These privileges put the members at a position above the jurisdiction of normal courts and laws.
Out of all the privileges enjoyed by the member of the parliament, some are important for us to have a better understanding about dealing.
Article 118 of the Constitution is one such provision that talks about the privileges of the house. This provision grants both houses of the parliament to make their own rules and regulations to conduct its business. What it means is that both houses have complete jurisdiction over their internal matters.
The only thing that both houses have to keep in mind while making such rules is that the rules must not be in contravention of the provisions of the Constitution.
It is a well-settled rule that no other authority, but the house and its presiding officer has any jurisdiction over the proceedings inside the house. The Supreme Court has upheld this right of the Parliament in Surendra Mohanty Vs. Nabakrishna Choudhury[1].
Similarly, Article 122 of the Constitution bars the courts from intervening in the proceedings of the Parliament. The Supreme Court in Sub-Committee of Judicial Accountability Vs. Union of India[2] had talked about the general nature of Article 118.
According to the Court, any violation of rules made by either of the houses under the authority of Article 118 cannot be questioned in a court, as such intervention by any court is barred by Article 122.
It is the presence of these provisions due to which misbehavior by the members of Parliament are not questioned in any court of law. Although these provisions were made to smoothen the functioning of the Parliament without untimely interventions from courts of law.
It is also to prevent futile litigations by citizens in courts about proceedings in the Parliament because such litigations will affect the working of the Parliament.
The reality, however, is quite different from what those provisions intended to achieve. The reality is that, more often than not, the house (either) and the Presiding Officers are left wanting to regulate the proceedings and the conduct of business in the houses.
The privileges granted by Articles 118 and 122 are collective in nature. That is, it is the collective responsibility of the members to ensure that the rules and regulations are followed. When the same members who are entrusted with the duty of ensuring that the proceedings of the houses are conducted smoothly become aggressive and openly disregard the requests from the Presiding Officers, it becomes hard to not call into question the provisions in the Constitution that give the members immunity.
What do the House Rules Say about Misbehavior of Members?
As per the power ranted by Article 118 of the Constitution, both houses of Parliament have framed their own rules to regulate the proceedings and conduct business in the house.
Before we understand the rules that regulate behavior of members in the Parliament, it is important to understand whether the Presiding Officers have any power to take action against unruly members.
In Raja Ram Pal Vs. The Hon’ble Speaker[3], the Supreme Court upheld the power of the house to punish its members. The court was of the opinion that the power to enforce privileges was in itself an independent privilege.
Now that we’re clear on the house’s power to punish its members, it is time that we understand the kinds of punishment that’s within the disposal of the Presiding Officer. The punishment meted out by the House are in the form of admonition, reprimand, withdrawal from the house, suspension, imprisonment, and expulsion.
Since the events that resulted in this article are a result of a certain TMC MP taking into his hand (literally) certain papers that contained the reply of a cabinet minister to questions regarding a certain spyware that happened in the Rajya Sabha, it is only fitting that we begin there.
Rules in Rajya Sabha
- Rule 255[4] – Under this rule, the Chairman is within his right to direct the withdrawal of any member from the house, whose conduct is grossly disorderly. It is up to the Chairman to determine whether a member’s conduct was disorderly or not.
- Rule 256[5] – This rule grants the Chairman the power to Suspend a member. This is an extraordinary power granted to the Chairman and he can use it only when he deems it necessary to suspend a member who disrespects the authority of the Chair or abuse the rules by continuously and intentionally obstructs the business of the house.
For a Suspension to come into force, a motion has to be moved and adopted by the House first. If adopted, the member will be suspended for the remainder of the session. The suspension can be revoked or terminated if another motion is moved and adopted by the house.
Rules in Lok Sabha
- Rule 373[6] – Similar to Rule 255 in the Rajya Sabha rules, this provision allows the Speaker to direct the withdrawal of any member. Accordingly, if the Speaker thinks that the conduct of a member is grossly disorderly, he can order the member to withdraw from the House and such must be absent from the House for the rest of the day.
- Rule 374[7] – This provision grants the Speaker the power to suspend a member from the House. If the Speaker is of the opinion that a member has disregarded the authority of the House or has abused the rules of the House intentionally and persistently, the Speaker can suspend a member by putting forward a motion. Similar to the rule in Rajya Sabha, the suspension can be revoked only by another motion.
- Rule 374A[8] – This is a power that is not available to the Chairman of Rajya Sabha. Accordingly, a member will stand suspended for five days or for the rest of the session (whichever is less) upon naming by the Speaker, if according to the Speaker the member committed grave disorder by coming into the well of the House, or disrupted the business of the House by shouting slogans or otherwise. Similar to the previous rule, revocation of the suspension is done by moving another motion.
Expulsion of Members – Neither the rules of Rajya Sabha nor the rules of Lok Sabha contain a provision for expelling a member from the House. Erskine May has expressed that expulsion of a member from the House must be considered as a derived power of the House to regulate its business.
In India, the power of the Presiding Officer to expel a member of the House is derived from Article 105(3). The Supreme Court had upheld the power of the Parliament to expel members that it saw unfit. It laid down that expulsion of members by the Parliament is a self-preserving exercise[9].
Expulsion is a rare exercise of power that is resorted to only in those cases where the act of member is derogatory to the dignity of the House and brings disrepute to the House and its members.
Conclusion
Elected members of the Parliament are bound to uphold a certain standard in their conduct. If they are unable to do so, they must be admonished at the very least and punished if their conduct violates the Code of Conduct. The Constitution has, therefore, granted the Parliament itself the power to punish its members.
The reality, however, is that this exercise of power by the Presiding Power is, more often than not, a way to please the party they are affiliated to rather than a way of upholding the dignity of the house or bringing unruly members within the line.
The same story unfolds every time – the ruling party wants the House proceedings to carry on while the opposition talks about their right to protest. When the tables turn, the same story repeats.
In a parliamentary democracy, the importance of elected representatives can be stressed enough. They are people’s choices. Before handing out punishments to them, all other avenues must be looked at. On the other hand, it is quintessential that the authority of the Chair must be respected. Without that, the smooth functioning of the House will be impossible.
Recent events at the Parliament are nothing but embarrassing to the nation as a whole. The opposition has the right to protest but that right must be exercised keeping in the mind the purpose of parliamentary sessions. It is for deliberations and discussions.
It is for making laws. Disrupting the Parliament does not accomplish anything. On the other hand, informed debates do. A balance must be struck so that India moves on from the tradition of “adjournments”.
References
- Surendra Mohanty Vs. Nabakrishna Choudhury, AIR 1958 Oriss 168 ↑
- Sub-Committee of Judicial Accountability Vs. Union of India, AIR 1992 SC 320 ↑
- Raja Ram Pal Vs. The Hon’ble Speaker, (2007) 3 SCC 184 ↑
- Rules of Procedure and Conduct of Business in the Council of States, Rule 255. ↑
- Rules of Procedure and Conduct of Business in the Council of States, Rule 256. ↑
- Rules of Procedure and Conduct of Business in Lok Sabha, Rule 373. ↑
- Rules of Procedure and Conduct of Business in Lok Sabha, Rule 374. ↑
- Rules of Procedure and Conduct of Business in Lok Sabha, Rule 374A. ↑
- Raja Ram Pal Vs. The Hon’ble Speaker, Lok Sabha and Ors., (2007) 3 SCC 184 ↑