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Avoiding a constitutional standoff

In an era where courts are asserting their jurisdiction and powers as never before, the decision of the all-party conference that the Speaker of the Lok Sabha need not respond to the Supreme Court notice in the case filed by expelled MPs challenging the action of the House might appear defiant. Yet Parliament and Speakers have all along been jealous in protecting their rights and not submitting to the jurisdiction of courts on issues within their domain, and the latest move is in accord with this longstanding tradition. And as Somnath Chatterjee took pains to emphasise, this stand need not lead to any confrontation with the Supreme Court. The Constitution vests in Parliament and its members the same powers, privileges, and immunities that the British House of Commons holds, and it specifically makes them immune from court proceedings in respect of anything said or any vote in Parliament. Article 122(2) further declares: "No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers." No doubt in India, unlike Britain, the Constitution rather than Parliament is supreme, and where the fundamental rights of citizens have been pitted against the claims of parliamentary privilege, the courts have been hearing the challenges. Yet, at issue here are not the rights of non-members but the powers of Parliament to discipline its own members and to regulate its own procedure that have been specifically conferred by the Constitution to the exclusion of the courts.

Ironically, Parliament's responsibility to discipline its members has been underlined by the Supreme Court's decision in the Jharkhand Mukti Morcha MPs' bribery case. Strange as it may seem, the Court ruled that MPs who take bribes for any speech or vote in Parliament will be immune from prosecution in the courts. The only remedy available against such corruption lies with Parliament itself, and it is the exercise of this power that has now come under challenge. The Supreme Court may have to decide on several issues, among them the ambit of the powers of Parliament — whether they extend to the power to expel members. It may also have to decide on the question whether courts can at all go into Parliament's actions against its members. Even if in its opinion courts are not barred totally, it might have to specify under what conditions they can step in, and what questions can be enquired into. For a decision on these issues, the Speaker's participation in the court proceedings would not be necessary. The Attorney General can assist the Court and the Government of India could argue the case of Parliament. Indeed on an issue such as this, there would be no dearth of parties seeking to appear and put forth their views. The Supreme Court can be expected to display judicial statesmanship in sidestepping the issue of the Speaker's non-response and proceeding to decide on the substantive questions involved. It is important that a constitutional standoff is not allowed to develop and overwhelm Parliament's salutary decision to expel corrupt members.

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