Smile, Please

(By T.P. Kelu Nambiar, Sr.Advocate, High Court of Kerala)

The big box-camera man, of yore, after setting the sitting, and before the click, used to say 'smile please', because he wanted to catch smiling faces.

'Smile' is an amiable word in English, just as 'Punchiri' is a lovable expression in the vernacular.

'Smile' means, to look pleased or to show pleasure by an upward curve of the mouth. Wordsworth even spoke of ' a sea that could not cease to smile'. You smile a welcome. You smile a consent. Joseph Conrad spoke of the smile of fortune. Robert Browning was enchanted with the good gigantic smile of the brown old earth. For the present, I am not on the aspect of that smile of which Shakespere had spoken: "One may smile, and smile, and be a villain"; and the bard disliked those who will 'not show their teeth in the way of smile.' Somebody said that a smile is the whisper of a laugh. Nestell Bovee said that something ] of a person's character may be discovered by observing how he smiles; some people never smile, they only grin. According to Martial: "A face that cannot smile is never good". One of the best statements on smile can be traced to Wilbur D. Nesbit, who sung:

"It's full of worth and goodness too with manly kindness blent,

It's worth a million dollars and it doesn't cost a cent".

Alexander Pope had sung differently, as:

"Eternal smiles his emptiness betray,

As shallow streams run dimpling all the way".

There are many kinds of smiles, each having a distinct character. Kaspar Lavater enumerated them as follows:

"Some announce goodness and sweetness, others betray sarcasm, bitterness, and pride; some soften the countenance by their languishing tenderness, others brighten by their spiritual vivacity".

This enumeration, I should think, from my experience, would apply to smiles in courts by Judges and lawyers. As long back as 1983, I had, in one of my articles said: "The Judge, in black, sober robes, entered, sat, and nodded as he tried to make himself comfortable in a chair designed more for effect as a seat of justice, than for comfort for the man dispensing it....There was a deep line cut down from the side of the judge's mouth. An ineradicable part of him, formed by a conscious effort to gain gravity and authority......There was a dignified authority in the poise of his head and the angle of his physical attitude. The Judge forced a smile from beneath his blackened locks at the members a of the Bar as the play began. The actors, shorn of individuality by their lawyers' dress, could express their personality only by voices and gestures". Here, I should remember Mark Twain: "Wrinkles should merely indicate where smiles have been".

How very different the atmosphere in the court hall would be if the Judges and lawyers remembered the statement of Martial that a face that cannot smile is never good. Therefore I would exhort honourable Judges and learned lawyers to shed the lustre of their smiles and make the court hall bright. Here, I would record what Marcel Proust imagined: "A smile floated without support, in the air". Hon'ble Judges should 'smile encouragement'. Learned lawyers should smile 'bunching their cheeks'.

No great energy is required for smiling. Neither power nor pelf is lost by smiling. Late lamented learned friend Sri. C.S.Narayanan. Narayanan, after a laborious and lengthy argument before that great, serious, steady, Judge, Justice M.P. Menon, concluded by submitting:

'Your Lordship may at least smile once for my satisfaction; I shall pay court fee therefor'. And, mark, learned friend Sri Narayanan was not a smiler. Justice Menon grinned and said: 'No grounds, dismissed'.

High Court Bench : An Insider's View

(By Kaleeswaram Raj, Advocate, Ernakulam)

At least a good number of lawyers and politicians are on the street demanding establishment of the bench of the High Court at Thiruvananthapuram.

The matter is of public interest. As a measure for decentralization of judicial power and improving access to justice, it is desirable to have more benches of Higher judiciary including the Supreme Court. There is no point in lawyers in the High Court saying that there should not be further benches. The court is not for lawyers. It is for the public at large. I feel that Kozhikode has a better claim for the bench, on geographical, social and demographical grounds.

But it is one thing to desire, and another thing to derive a proposition of law, on the basis of the precedents and provisions, both constitutional and statutory.

It happened few years back. In Karnataka, a few Bar Associations, eighteen in number, joined together to form a Federation. They demanded a bench of the Karnataka High Court in the northern part of the State, either at Hubli or Dharwad. Agitations followed, but with no result. Later the Federation approached the Supreme Court under Art.32 of the Constitution. A Bench consisting of Justice K.T.Thomas and Justice M.B. Shah reported in Federation of Bar Associations in Karnataka v. Union of India (2001 (1) KLT SN 2 (C.No.3) SC = (2000) 6 SCC 715) by saying that "the demand for establishment of High Court benches at centres different from the principal seat is a clamour without abatement". The court dealt with the three principal contentions of the Federation based on (1) the distance to Bangalore from northern parts of the State, (2) the fact that there are six States in the country (at that time) having benches of the High Court away from the principal seats and (3) recommendations by an earlier Chief Justice of Karnataka.

After analysing the legal and factual aspects, the Supreme Court inter alia held that "no litigant can claim a fundamental right to have the High Court located within proximal distance of his residence".

The judgment was rendered after analysing Art.214 of the Constitution stating that "there shall be a High Court for each State". The background of S.51 of the States Re-organisation Act, 1956 also was examined. It was indicated in para.7 of the judgment that under Art.214 , nothing is stated as to the establishment of the benches of the High Court at different centres.

Regarding the role of the Chief Justice, it was held: -

"As the Chief Justice of the High Court concerned is the important consultee in the matter of establishment of a Bench of the High Court, he being the head of the High Court has to form an opinion when it is required during such consultation process. Normally the Chief Justice will not be guided by any political or parochial considerations. When he gives the opinion, it is the opinion of the High Court and not merely his personal opinion...............

Normally he could not take a decision on his own without such consultation with his colleagues regarding matters of such great importance for the High Court and for the future of that institution. Any opinion which he gives, when acted upon would have far! reaching implications for that High Court, even after his term of office is over and hence it is imperatively needed that he ascertain the view of his colleagues in the same High Court".

Who is the ultimate authority? It is the Central Government, according to some. It is the Chief Justice of the State according to the Central Minister. It seems that the Central Minister is right. He has the support of the Supreme Court. This is what the Apex Court said-

"The question of establishment of a Bench of the High Court away from the principal seat of the High Court is not to be decided on emotional or sentimental or parochial considerations. The High Court is the best suited machinery to decide whether it is necessary and feasible to have a Bench outside the principal seat of that High Court. If the High Court does not favour such establishment, it is pernicious to dissect a High Court into different regions on the ground of political or other considerations. So it is out of the question to decide for establishment of a Bench outside the principal seat of a High Court contrary to the opinion of the Chief Justice of that High Court which has been formed after considering the views of his colleague Judges".

(Para. 6 of the judgment in Federation of Bar Associations' case, supra).

One may also note that in the said case , the prayer for a direction to the centre to establish the bench was rejected. The Court did not even ask the centre to consider the matter.

As regarding Kerala, the High Court had taken a decision which was reiterated by the Chief Justice, including the present Chief Justice. The present Chief Justice has clarified that it is not for the first time that the full court has decided not to have a bench at Thiruvananthapuram. According to him, "A full court meeting held during the tenure of Justice K.T.Thomas as Acting Chief Justice had taken the decision, which was reaffirmed during the tenure of Chief Justice N.K. Sodhi". This full court decision, when read in the light of the Supreme Court judgment, attains finality. Therefore, the opinion of the Union Minister that the issue regarding the new bench is a closed chapter is legally sound.

There is a short legal history behind the matter which also was indicated by Justice P.K. Balasubramanyan in the judgment dated 28.9.1998 in O.P.No.20056/92. The United State of Travancore-Kochi was formed as per a covenant signed by the rulers of the princely states on 27.5.1949 and 29.5.1949. It was agreed between them that the State capital will be at Thiruvananthapuram and High Court will beat Ernakulam. On 7.7.1949 the ordinance on United State of Travancore-Kochi was issued. CI. 6 of the ordinance reflected the agreement between the two states (and the people of the two states) that the High Court of the United State will be at Ernakulam. Subsequently the ordinance took the form of the Travancore Cochin High Court Act. Strangely, the said Act was amended in 1953. A proviso was incorporated under S.6 referred above. As per the amended proviso. Judges of the High Court, not exceeding 3 in number should sit at Thiruvananthapuram and deal with cases arising in Thiruvananthapuram District (not the entire Travancore). This was virtually a unilateral deviation from the concord arrived at earlier between the two States- State of Kerala was formed pursuant to the States Reorganisation Act, 1956. But S.6 of the earlier Act of 1125 was not repealed. Accordingly notification dated 12.12.1956 was issued by the Chief Justice, saying that the Judges may sit in Thiruvananthapuram to dispose the cases (in Thiruvananthapuram district). That circuit Bench had no power to receive cases and the decision to that effect by the Registrar was held to be correct by the High Court. This situation continued only for a short term.

However, on the basis of these historical facts, a Writ Petition was filed before the High Court seeking establishment of a Bench of the High Court at Thiruvananthapuram. Justice P.K. Balasubramanyan dismissed the Writ Petition by way of an elaborate judgment dated 28.9.1998 running into 20 pages. The appeal filed against the judgment as well as the review petition were dismissed. Thus in R. Gopan v. Union of India and other. (O.P. No.20056/92) it was held -

"Moreover, the question whether the sitting of some of the Judges of the High Court in a seat other than the principal seat of the High Court is needed or not, is a matter exclusively for decision by the Chief Justice of the High Court and he cannot be directed to authorize the sitting of Judges in a place other than the principal seat of the High Court".

In the very same judgment, it was also held: -

"State of Kerala is not a large one. The time now taken to reach the seat of the High Court at Ernakulam from Trivandrum is only 4 hours. The two towns are well connected by a number of trains and other modes of transport. Trivandrum is almost at the southern tip of the State. The northern most point of the State is Kasargod and from Kasargod to reach Ernakulam by train, it takes only about ten hours. Even according to the petitioner, one of the conditions for establishing a bench referred to by the Jaswant Singh Committee report is not satisfied since the time taken to reach Ernakulam from Trivandrum is only 4 hours. If, as sought for by the petitioner, all the cases in which the State, its officers and other authorities functioning from Trivandrum figure as respondents, are to be filed in Trivandrum, a litigant from Kasargod or Malabar will have to travel upto Trivandrum for the purpose of filing his case. In view of the accessibility of Ernakulam from the various parts of the State and the facilities available, it will be highly unjust to provide for the sitting of Judges in Trivandrum, conferring powers to receive cases filed in Trivandrum, with the insistence that all cases in which the State Government, its entities or officers are parties, are to be filed in Trivandrum. It will cause great hardship to the litigants coming from the erstwhile Malabar District and the South Canara district added to the State of Kerala by the States Re-organisation Act, 1956".

Again in para 7 it was held:-

"A clamour for shifting the High Court from Ernakulam to Trivandrum could be counter productive in that, the people of the northern region of the State, could equally clamour for a shifting of the High Court to Calicut or the establishment of a bench there". Thus it is clear that the demands for the Bench at Thiruvanathapuram do not satisfy the parameters stated in Jaswant Singh Committee report, which is the most comprehensive material on the subject.

One may disagree with the judgments indicated above. One can even say that the word "consultation" in the States Re-organisation Act is interpreted by the Supreme Court' in an erroneous way. One can even draw an analogy of converting consultation in Art. 124(2) and Art.217 into "concurrence" as happened in S.C. Advocates on Record Association v.\ Union of India (AIR 1994 SC 268). One may also desire for a review of the Supreme Court judgment in the Karnataka case. But, as of now, there is a judgment. Arthur Hailey said:-"with all the law's faults, it had one great virtue. It was there". So is the case with judgments. Agitations cannot erase the precedents which the agitators seldom understand.

Trial of Bhagat Singh -- A Historical Farce

(By V.K. Babu Prakash, Judicial First Class Magistrate, Kollam)

"I am a guest only for a few moments, I am the lamp that burns before the dawn and longs to be extinguished.

The breeze will spread the essence of my thoughts, this self is but a fistful of dust, whether it lives or perishes.

Well, good bye .

Be happy, country men, I am off to travel. Live courageously"

- BHAGAT SINGH in a letter written to friends few hours before his execution.

Bhagat Singh, that legendary like revolutionary martyr of Indian Freedom struggle and two of his associates Sukh Dev and Shivaram Raj Guru were hanged at the Lahore Central Jail on 23.3.1931. This was the culmination of the notorious farcical Lahore Conspiracy case, one of the most controversial trials ever had taken place in India under the British Raj. Not much is precisely written about the trial and its tribulation. However, recently A.G. Noorani, the senior Advocate, Supreme Court of India took pains to collect the details of the trial from various Historical materials kept and preserved by the National Archives and made out a remarkable book in the title "The trial of Bhagat Singh, Politics of Justice". The Book is published by Oxford University Press, New Delhi. The book is rich in its content which will compel the reader to finish it in a spell and when on finishing it will not let him down. It will linger on in the mind with a disturbing feeling of pain. The book in simple and plain language reveals how the executive and legislative branches of the British Govt. in India conspired to ensure the miscarriage of Justice. The book follows from the author's I continued interest in political trials and the use of courts as political weapons. The content I is lucidly written, elegantly argued and erudite in style which will be invaluable to historians, legal professionals, law students and general audience.

The most remarkable part of the book is the Chapter on Mohammad Ali Jinnah's speech in the Central Assembly on September 12, and 14, 1929. His was the most forth right statement of the time. It showed that where principles of law and norms of justice were threatened, Jinnah's voice was that of a fearless Indian. Bhagat Singh's trial was one of those episodes in the history of India's struggle for freedom of which little is known. Historians and his contemporaries writings have thrown light on facets of his personality and his out look which his amazing courage and deep commitment tended to over shadow. A man of intense feeling, Bhagat Singh was also a man of remarkable intellectual qualities who was ever ready to learn and unlearn. But far less is known of some dark aspects of his trial. The book of A.G Noorani explores on the same. It raises certain issues which have not received the attention they deserve. The farcical character of the trial was not studied in depth, perhaps because Bhagat Singh's culpability in the murder of John Saunders, the Assistant Superintendent of Police was not in question . But the Lahore Conspiracy case merits study for the political ends. On 1.5.1930 the Governor General promulgated an Ordinance establishing a special Tribunal to try the case while taking good care to deprive the accused of the right of appeal to the High Court. The law requires confirmation of death sentences by the High Court. The ordinance robbed them of this precious right.

A little over six months thereafter, the Punjab Govt. got enacted a special statute to set up a commission to try certain persons on charges as grave and the same Governor General secured enactment of a central law conferring on the accused those very rights of appeal to and confirmation of sentences by the High Court. But in the case of Bhagat Singh and his comrades the British intention and its animus was demonstrably clear. Not at all this. The ordinance establishing special tribunal against Bhagat Singh and other expired after six months. Hence, the trial before the tribunal was a unique one which was itself under a death sentence, suspended for six months. It therefore, sacrificed justice to despatch. There was another unique feature which was even more revolting. Half way through the trial, a member of the Tribunal, Justice Sayad Agha Haider was unceremoniously removed from it. He was then a sitting Judge of the Lahore High court. His objection to the use of violence by the police on Bhagat Singh and his associates and his close questioning of the prosecution witnesses had alarmed the British authorities. They had decided that Bhagat Singh should not be left alive, not even in prison serving a long sentence. Sensing danger from Justice Agha Haider, Justice John Coldstream the President of the Tribunal an ICS Judge of the Lahore High Court informed the Governor General about his colleague's non-co-operative attitude. The Government Advocate, Cardon Noad, was sent to Justice haider's home to pacify him. But the latter turned him out saying "lama judge, not a butcher". In the midway Justice Haider was removed.

Ironically, though Bhagat Singh had shot Saunders in broad day light, it was on the solitary testimony of a witness who happened to be there by sheer chance that his conviction at the trial was secured. The other witnesses had collapsed. If proper legal assistance would have been made the picture would have been different. Bhagat Singh and his comrades refused legal aid and had little interest in their acquittal. Bhagat Singh's life and thinking hold lessons for the present day terrorists and their modus operandi. He grew up in an atmosphere in which, disillusioned with the moderate's politics many a patriot took to revolutionary politics. Bhagat Singh was twenty three when he was executed on 23^rd March 1931. His notebook kept in Jail testifies to his vast reading and to his readiness to learn. He was not a blind follower of any leader and an uncritical supporter of no ideology, He was not a terrorist. He was secular to the core and parted company with his mentor Lala Laj Pat Roy. Lala Laj Pat Roy was brutally assaulted by the Lahore Superintendent of Police J.A. Scott during a procession organised against the Simon Commission on 30.10.1928. Due to the blows struck on Lala Laj Pat Roy he was hospitalised and later breathed his last on November 14th 1928. When this incident was known by Bhagat Singh, Shivram Raj Guru and Sukh Dev they immediately decided to avenge the death of Lala Laj pat Roy by killing J.A Scott. However, their target missed and John Saunders, The Assistant Superintendent of Police was shot dead mistaking as J.A Scott.

There were twenty five accused in the case of whom nine were declared absconders. Sixteen were put to trial. The case was known in the history as the Lahore Conspiracy case which began on July 10th 1929 in the court of the special Magistrate, Raj Sahab Pandit Sri Krishen. The trial was held in the Central Jail, Lahore. The Magistrate was not required to ascertain whether the accused were guilty or not but whether the evidence disclosed that a prima facie case existed of the kind grave enough to be tried exclusively by a court of sessions. If it did, he had to commit the accused to stand trial in a sessions court. The charges covered a conspiracy to wage war against British King and over acts in pursuance of it namely the murder of Saunders, throwing bombs in the assembly etc. The prosecution proposed to examine 600 witnesses. As in the assembly bomb case Bhagat Singh declined to be represented by a lawyer. The case against the accused was strong but not a hopeless one. Skillful cross examination must have helped to expose if not break down the approvers. Two of them were abandoned as unreliable by the prosecution. A lot of confusion happened on the Identification of Bhagat Singh and Raj Guru by those claimed to be eye witnesses by prosecution.

Armed police guarded the court and its entrance. It was not a trial in open court. ] General public and Journalists were not admitted to watch the court proceedings. The accused were hand cuffed through out. Even Subhash Chandra Bose was not permitted to talk with the accused. The condition in the Jail was deplorable. The accused were treated as notorious criminals and not provided with decent diet or other amenities. Bhagat Singh gave written submission to the Magistrate that they be treated as political prisoners and be provided with decent diet and sufficient books of certain authors. All these fell in deaf ears but the harassment continued. At last Bhagat Singh and four other started hunger strike in the Jail and court proceedings. It continued for days, weeks and even months. The law then stood in S.540 A CRPC was that at any stage of an inquiry or trial under this Cods, where two or more accused are before the court, if the Judge or Magistrate is satisfied that the accused is or are incapable of remaining before the Court, he may, if the accused is represented by a pleader dispense with the attendance of the accused and proceed with the trial or enquiry in his absence. As Bhagat Singh and others were not represented by Pleader the provisions could not be profitably exercised by the Magistrate. Hence the Government decided to amend the CRPC to introduce S.540 B which read as follows: if any accused has voluntarily rendered himself incapable of remaining before the court, the Judge, or Magistrate may whether such accused is represented by a pleader or not dispense with his attendance and proceed with the inquiry or trial in his absence. The Bill when introduced was strongly opposed by Mohammed Ali Jinnah, Motilal Nehru and many others. Jinnah made a remarkable speech touching the legal and political aspects of the Sill calling it a draconian one. He said , " The man who goes on hunger strike has a soul. He is moved by that soul and he believes in the justice of his cause" Due to the powerful exposition against the Bill, it was withdrawn by the Government.

However, before the Magistrate could commit the case to the Sessions Court, Lord Irwin, the Viceroy by a stroke of his pen, interrupted the committal proceedings. If the accused are tried before the sessions court on commitial they got a right of appeal to the High Court. Instead a Tribunal of three High Court Judges was set up to try the case without any right of appeal. Though 600 witnesses were to be examined the Tribunal cut it short to 437 to finish the trial before the efflux of the time of six months, thereafter, the Tribunal lost jurisdiction. The Tribunal found the accused guilty on a majority of ? to 1. The ritualistic appeal made by Bhagat Singh on a strong persuasion made by his friends before the Privy Council was dismissed without even admission. At last on 23.3.1931 that brave soul and his two associates were hanged by the neck till death. Bhagat Singh was unmoved and kept cool in facing death. He was such a courageous person who did not relent even before death. Jawahar Lal Nehru in his Autobiography recalled Bhagat Singh and his bravery as follows:

"It is very easy and very fatuous to condemn persons or acts without seeking to understand the springs of action, the causes that underline them. Bhagat Singh was not previously well known, he did not become popular because of an act of violence, an act of terrorism. Terrorists have flourished in India, off and on. However did any of them attain a fraction of that popularity which came to Bhagat Singh ? That is a patent fact which cannot be denied, it has to be admitted that he was a real patriot."

Lok Sabha Speaker and Supreme Court

 V. Bhaskaran Nambiar, Former Judge, HC

  In 1978, to be exact, on the nineteenth of December, Parliament resolved to expel Shrimathy Indira Gandhi from Parliament. But then, in 1981 on seventh May, the 7th Lok Sabha Assembly, rescinded the 1978 resolution and also strongly condemned it as ‘wrong and erroneous and a gross distortion of privilege law’.

 Does this mean (a) that Parliament has endorsed the power to expel a member (b) or that Parliament has accepted it as gross distortion or a grotesque exercise of privilege law (c) or that Parliament has acquiesced that there is no power to expel? There can be no such doubt or fear as the subsequent events reveal.

  Parliament has again struck towards the end of 2005. Parliament has resolved to expel some members of Parliament on the basis of the finding of an ethics committee that some Members of Parliament had received ‘bribe’ as ‘cash for question hour’. 

 Aggrieved, those members or some of them approached the Supreme Court alleging violation of their constitutional rights. The apex court ordered notice to the respondents including Parliament.

  Before issue of notice, the Honourable Lok Sabha Speaker is reported to have said that ‘there is no question of surrendering or submission to the jurisdiction of the judiciary. I have the highest respect for the judiciary; but I have a duty to perform as Speaker of the Lok Sabha’. After issuance of notice, it is reported that the Speaker of the Lok Sabha backed by all the presiding officers decided not to respond to the notice issued by the Supreme Court.

  It is of course for the Speaker to decide whether to accept or respond to the notice. He can also decide whether it is not his duty as Speaker of the Lok Sabha to direct filing of reply to controvert the allegations of fact and answer the questions of law raised in the petition before the Supreme Court. If he does not respond and an ex parte decision is rendered, it will be as much binding as a decision on merits, made after hearing. Of course, the Supreme Court may seek the assistance of the Attorney General and other senior advocates as amicus curiae, if necessary.

  If the Speaker believes that the apex court has no jurisdiction to issue notice, the Speaker can direct his office to appear through counsel and object to the jurisdiction. This submission does not affect the status and dignity of the Speaker. It is his equality that compels him to oppose the alleged transgression of his authority.

 From the reports in the press, the defense seems to be

 (a) that the matter is beyond judicial scrutiny in view of Article 122 of the Constitution and 

 (b) the power of expulsion is implicit under Article 105 when the powers and privileges of the House are protected under the Constitution.

 The aspects required to be noted are

 (a) If a Member of Parliament is expelled, he forfeits all his rights and privileges as a Member of Parliament and elections have to follow to fill the seats that have fallen vacant. In other words he is disqualified to continue as a member.

 (b) If expulsion from Parliament is not listed as a disqualification in the Constitution; will not expulsion from Parliament be violation of the Constitution?

 (c) If Parliament can punish a member whether, on the basis of the report of the ethics committee or otherwise, which jurisdiction cannot be doubted or questioned, what then is the content and contour of punishment?

 I venture to submit my views on the twin questions of jurisdiction of the court to decide the dispute and the competence of Parliament to expel a member.

 Court’s Jurisdiction

 Article 122 provides: - Courts not to inquire into proceedings of Parliament: - (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

  Article 122 therefore expressly permits that the validity of proceedings can be challenged; but it shall not be on the ground of irregularity of procedure. The court’s jurisdiction is thus ousted only in those cases where the claim rests only on procedural irregularity in the House. If the claim rests on other substantive rights, the jurisdiction of the court is not ousted. I think there is no challenge to the procedure adopted in Parliament, or to the constitution of the ethics committee. But the challenge is to the conclusion and decision to expel a member and not to the procedure adopted in arriving at that conclusion. 

 Competence to Expel

Competence to expel a Member of Parliament rests on the privileges and powers of the House under Article 105 of the Constitution wherein, the powers and privileges of members of Parliament in the House of Commons as on 1950 are preserved for the House.

 The privileges of the English Parliament are based partly upon custom and precedents, which are found in the Rolls of Parliament and the journals of the two Houses and partly upon certain statutes, which have been passed from time to time. These are privileges and powers of a House in a country where there is no written constitution.

 The House of Commons retains its right to decide upon the qualifications of any of its members to sit and vote in Parliament and if, in the opinion of the House, a member has conducted himself in a manner which renders him unfit to serve as a Member of Parliament, he may be expelled from the house. 

 Members have been expelled from the House upon various grounds e.g. as being rebels, or having been guilty of forgery, of perjury, of misappropriation of public money, of corruption in the administration of justice, or in public offices, or in the execution of their duties as members of Parliament or contempt and other offences against the House itself. In fact thus expulsion is a form of disqualification both in England and in India. The seat shall thereupon become vacant.

 True, in England the House of Commons has the power to expel it’s member/members. But in India, controlled by a written constitution, we find there is no express power of expulsion conferred on the House. On the other hand, the provisions seem to indicate that at present there is no much power even impliedly conferred on the House.

  The constitution enumerates in Article 101(3) the circumstances when a seat falls vacant.

  Vacation of Seats- Article 101(3) --. If a member of either House of Parliament: -

 (a) becomes subject to any disqualification mentioned in clause (1) or clause (2) of Article 102 or

 (b) resigns his seat by writing under his hand addressed to the Chairman or the Speaker, as the case may be, and his resignation is accepted by the Chairman or the Speaker as the case may be, his seat shall thereupon become vacant.’

 Article 102 provides for disqualification thus: 

Disqualification for membership --

 (1) A person shall be disqualified from being chosen as and for being, a member of either House of Parliament --

 (a) if he holds any office of profit

 (b) if he is of unsound mind and stands so declared by a competent court

 (c) if he is an undischarged insolvent

 (d) if he is not a citizen of India

 (e) if he is so disqualified under any law made by Parliament

 The President can alone settle a dispute regarding disqualification after the President consults the Election Commission under Article 103. The Speaker cannot decide the dispute. 

 The Speaker is empowered to disqualify a member only under the Tenth Schedule where there is defection.

 Parliament has power to punish erring members; but then the punishment cannot extend to expulsion. It should stop short of expulsion.

  If only Parliament makes a law as contemplated under Article 102 (e) by making expulsion by the House as a disqualification, the whole problem can thus be solved. This has not been done so far.

 When therefore the constitution specifies the occasions and circumstance when the seats can fall vacant, can the Parliament in these cases declare de hors Articles 102 and 103 that the seat or seats have fallen vacant and request the Election Commissioner to conduct fresh elections?

 Should not a Constitution Bench of the Supreme Court decide these and other far-reaching questions? If so, is it advisable for the Speaker of the Lok Sabha to keep away from contesting in court without rendering any assistance to the judiciary?

 It has been held in the historic decision in Marbury v. Madison as early as 1801 and followed all over the world and by India that any dispute, whether the legislature or the executive has overstepped their jurisdictional limits, has to be resolved by the judiciary. Thus the question whether Parliament has overstepped its powers in disqualifying/expelling members of Parliament is open to judicial review and it will be ideal if the Speaker can state his case both on facts and on points of law before the apex court for a final decision on the very important constitutional questions involved.