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 But then, in 1981 on seventh May, the 7th Lok Sabha Assembly, rescinded the 1978 resolution and also strongly condemned it as ‘wrong and erroneous and a gross distortion of privilege law’.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.

*Concept of Welfare State and SEZ Act, 2005

(By G. Krishna Kumar, Advocate, Ernakulam)

Compulsory acquisition of land for public purpose is well accepted procedure from the ancient days itself. The object behind such compulsory acquisition is for public purpose, based on the principle of eminent domain "Welfare of the people is supreme law". So it is well within the powers of the State to acquire compulsorily, the properties of individuals, for public welfare to provide facilities and better living conditions to the people at large.

Our's is an agrarian economy and majority of the people are engaged in agriculture or agriculture related works. Economic reforms should be implemented keeping in mind the above aspects, unfortunately which is missing in the present day legislations. For example, our legislature has enacted 'Special Economic Zone Act, 2005 to provide for establishment, development and management of special Economic Zone for the promotion of exports. As per S. 3 of the Act, a private person can establish SEZ for manufacture of goods or rendering service. Acquisition of land to allot corporate companies is a new trend which will make weaker section more weaker and will amount to concentration of wealth in corporate groups.

Whether under the colour of trade promotion, can the Government accelerate concentration of wealth in certain persons or group of persons ? Can the Government Snatch away the property of downtrodden and transfer it to the corporate giants ? Is it not reverse discrimination against the helpless persons belonging to lower strata of the society?

Before answering these questions, let us examine the concept of socialist, welfare State enshrined in the Constitution.

Preamble, which is the golden Key of the Constitution guarantees that India should be a sovereign, socialist, secular, democratic, republic and assure to all its citizens, Justice: Social, Economic and Political and also assure equality of status and opportunities. Preamble embodies hopes and aspirations of the people.

Part IV of the Constitution contains directive principles which will govern the State and its instruments in it's affairs. The concept of 'welfare state' should be understood in the light of dream concept of our Father of Nation to make India a 'Ramarajya'. Art. 14 of the Constitution guarantees equality before law and equal protection of law. It is settled law that equal treatment of unequal itself is denial of equality. So the State should endeavour to enact laws to protect weaker section of the society. Art. 39(c) forbids the concentration of wealth and means of production to the common detriment. Art. 39(b) prescribes that the ownership and control of material resources of the community are so distributed as best to sub serve the common good. Art.39(a) prescribes that the State shall secure adequate means of livelihood to citizens. Art.41 mandates the Government to ensure right to work.

In Keshavanadha Bharathi case the Apex Court considering the constitutional validity ((1973) 4 SCC 225. ) of Land Reforms Act held that Art 39, together with other provisions of the Constitution contains one main objective, namely the building of a Welfare State and an egalitarian social order to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. It was further held that "Through such a social revolution, the Constitution seeks to fulfil the basic need of the common man and to change the structure of the society, without which political democracy has no meaning".

In Sanjeev Coke Mfg. Co.Ltd. v. Bharath Cooking Coal Ltd. (AIR 1983 SC 239) the Apex Court considering the constitutional validity of Coking Coal Mines Nationalisation Act, by upholding the Act held that Nationalisation of Coal mines, in whole or in part, is a law for implementation of Art.39(b). (See also Bank Nationalisation case AIR 1970 SC 564).

In Excel Wear v. Union of India (AIR 1979 SC 25.) The Honourable Supreme Court considered the impact of the term 'Socialist' in the preamble and held that the word 'socialist' enshrined in the preamble, read with Art. 39(d), would enable the court to uphold the constitutionality of nationalisation of private property.

The Honourable Supreme Court in Hakara D.S. v. Onion Of India (AIR 1983 SC 130.) considered the sprit of the word 'Socialist' in the preamble and held that the word 'socialist' read with Art 14 of the Constitution helps to strike down a statute which failed to achieve it at the fullest extent. In Atom Prakash v. State of Haryana held the term socialist r/w. Art 14 strike down discrimination which adopts a classification which is not in tune with the establishment of a welfare society. The Apex Court further held "Whatever article of the Constitution it is that the Court seeks to interpret, whatever statute it is whose constitutional validity is sought to be questioned, the Court must strive to give such an interpretation as will promote the march and progress towards a Socialistic Democratic State",

In a land mark decision Lingappa Pochaima Appelewar v. State of Maharashtra (AIR 1985 SC 389 (paras. 14,16,18, 20)) the Apex Court held that the expression 'social and economic justice' involves the concept of 'distributive justice' which connotes the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequal's in society. It comprehends more than lessening of inequalities by differential taxation, giving debt relief or regulation of contradictable relations; it also means the restoration of property to those who have been deprived of them by unconscionable bargains; It may also take the form of forced redistribution of wealth as a means of achieving a fair division of material resources among the members of society. In Dalmia Cement (Bharat) Ltd. case (_(1996) 10SCC104.) the Supreme Court re-iterated that the ideal of economic justice is to make equality of status meaningful and life worth living at its best, removing inequality of opportunity and status -Social, Economic and Political.

In Ratlam Municipal Council case (AIR 1980 SC 1622.), the Apex Court held that the courts should have regard to the directive in Art. 38 to promote welfare of the people and social justice. In a land mark decision in G.B. Pant University of Agriculture and Technology v. State of U.P. ((2000) 7 SCC 109.) it was held that Democratic socialism aims to end poverty, ignorance, disease and inequality of opportunity. The socialistic concept ought to be implemented in the true sprit of the Constitution.

The Apex Court in a yet another land mark decision in State of Tamil Nadu v. Ambalarana Pandara Samadhi Adheenakartha ((1997) 9 SCC 313.) held that Tenants/Tillers of soil have a fundamental right to economic empowerment u/Art. 39(b) and are entitled to Ryotvari Patta".

Art. 14. 1 5, 16, 21, 38, 39 and 46 read with preamble make the equality of the life of the poor, disadvantaged and disabled citizens of the society, meaningful. Art. 38 in particular is having the object of securing a welfare state and to be read together with Part III rights.

So discrimination is possible as per the Constitution. But it should always be in favour of weaker section. Only through equality in affirmative sense, equality enshrined under the Constitution will be meaningful and fruitful in its true letter and sprit.

In a society based on democratic socialism, Law should be an effective tool to assuage and uplift the weaker section. Brihadaranyakopanishad which proclaims the supremacy of

Law is as follows:

- Brihadaranyakopanishad, 1:4:14

Which means "Law is the king of Kings, No one is above Law. Law aided by the King enables the weaker to win over the stronger including the king himself."

In other words, law is an effective tool to empower the weaker over mighty and it should not be vice versa and the State should enact laws for the welfare of people at large and cannot inflict injuries on weaker section under the guise of economic reforms.

From conjoint reading of the preamble, Art.14, Art 21 and 39 of the Constitution along with preamble , an irresistible and inescapable conclusion can be drawn that the society based on the principle of socialist and welfare state forms part of Part III rights and cannot be whittled down by statute. So it can easily be concluded that the goal of socialist, welfare State, forms part of Fundamental Rights.

In these legal back drops, the State cannot compulsorily acquire agrarian land of poor farmers and help the corporate giants to amass wealth at the cost of the poor. In majority of cases, agricultural land is the source of livelihood of poor farmers who knows no other job due to their illiteracy and living conditions. Illiterate and under privileged farmers will be thrown to streets, in case of compulsory acquisition of property to help the corporate companies, who can acquire property by using their own funds. The poor farmers will have no opportunity to get white coller jobs or skilled job, as they are uneducated, unskilled and who knows only agricultural work. Depriving their land will amounts to deprival of their livelihood and infringing their freedom of right to work and livelihood. Though the property right is not a fundamental right, in case where agricultural land of poor farmers are snatched for multi nationals, it will amount to deprival of livelihood and right to work; thereby amounts to infringement of fundamental right enshrined under Arts. 14,19 and 21. Here again tillers and farmers are subjected to discrimination and exploitation, for amassing wealth to certain corporate giants, whose sole intention is to make profit and have no public interest or public purpose.

By enacting SEZ ACT, 2005 the world's best democracy has inflicted blows on poverty sticken daridranarayanas, so as to attain the dream of "welfare state" or "Ramarajya".

Be that as it may, I conclude my thoughts by quoting Plato and Gandhiji:

I quote Plato: "I declare that justice is nothing else than that which is advantageous to stronger (V.R. Krishna Iyer, The Dialogues and dynamics in Human Rights in India, P.92)"

"One can withstand the atrocities committed by one individually. But it is difficult to cope with the tyranny perpetuated upon people in the name of people" (Gandhiji, Collected words of Gandhiji Vol. 1. P.204).

* Paper submitted at Bar Council in the Work Shop on 'Security in Society'. 

Quick Disposal of Cases

(By V.M. Balakrishnan Nambisan, Advocate, Taliparamba)

"Justice delayed is justice denied" is an oft-quoted adage. But justice hurried is justice buried". Can we not have a via media?

In this super-fast world, we seek super-fast justice. In olden days, litigants had enough time to spare for litigations. Touts also promoted its protraction. For them, it is a milching cow. But time has changed. Everybody is busy. We have no time to wait or waste. All of us are in a hurry. Many litigants give up litigation midway for the simple reason of delay. Hence we think of dispensation of quick justice.

Formerly, after filing Vakalath for a defendant, there used to be several month - long adjournments for filing written statements, for framing issues, for summoning witnesses and documents, for examination of witnesses, for arguments etc. etc.

But when the Special List system was introduced, to some extent it quickened delivery of justice. And of late, we started Adalaths - it has two main advantages. Firstly, there will be no appeal and secondly, the litigants who had been fighting tooth and nail, when the case is settled, they shake hands, smile and part as friends (See 2008 (2) KLT SN 2 (C No. 2), T.Vineed v. Manju S.Nair). It is reported that there are about 3.50 lakhs of cases pending in various High Courts in the country. If so, what would be the volume of cases pending in lower courts? And what is the way out to reduce it?

In-Built Mechanism:-

In fact, there is an in-built mechanism in the Code of Civil Procedure (for short CPC) itself to solve the problem. It is easy. The fact is that it is not properly made use of. Some Easy ways:

1) Issue of Summons :- Even at the time of issuing summons to the defendants, the Court shall determine whether it shall be for the defendant to appear and state whether he contests or not and if contests, directing him to file his written statement and documents and also to produce his witnesses if for final disposal (0. 5 Rr. 5 to 8 of C P C). And if either party fails to produce his evidence without sufficient cause, the Court may at once pronounce judgment (0.15 R.4).

Note : Summons is issued not by Judges directly, but by the office staff. They usually don't apply their mind to it. It is therefore advisable to give a short training to them to issue summons on the lines mentioned above.

If the above procedure is followed strictly, very many cases will get terminated even on the very first day of the first hearing.

2) Settlements: Secondly, Courts are mandated to ascertain and record the admissions and denials from each party at the very first hearing and thereafter the court shall direct the parties to settle the matter outside Court through any of the forums provided in S. 89 of C.P.C viz., Arbitration, Conciliation, Adalath or Mediation (O.10 R.1A).

Even in cases wherein the Govt. or a Public Officer is a party to the suit, the Courts are duty-bound to make in the first instance itself every endeavor to assist the parties to reach settlement (0.27 R. 5 B).

But it is found that courts are loathe to do it.

3) Judgment at once when no statement: Formerly, Courts used to grant extensive time for filing written statement as said above. But by amendment in 2002, the time is restricted to 30 days, but upto a maximum of 90 days from the date of service of summons (Order 5 Rule 1, 2nd proviso and 0.8 R.1, 1st proviso). Even this is not strictly adhered to. Some Judges used to insist that application should be filed for granting time beyond 30 days. To a small extent, it is helpful. But there is a lacuna in the law. A defendant who gets 90 days' time for filing written statement, deliberately does not file it but remains ex parte. The court adjourns the case for ex parte evidence of plaintiff to another date, say, some 10 or 15 days thereafter. In the meantime, the defendant files an application to set aside the ex parte order. No time limit is prescribed for it. As such, the defendant can get the ex parte order, set aside any time before the suit is finally disposed of. This makes the 30 to 90 days' period a mere mockery. To overcome this, Court can decree the suit at once adopting the affidavit filed along with the plaint, under 0.7 R.15 as evidence of plaintiff invoking the power under 0.8 R.10 of Code of Civil Procedure. The litigants will then become more vigilant also.

 4) Interlocutory applications: The above is applicable only till the parties appear before the court and put in their statements etc. But the protraction begins thereafter. Interlocutory Application (for short I.A.) comes one after another. Each I.A. is a stumbling block in the progress of the case. Sometimes, of course, they are helpful to dispose of the case quickly. But at times, it is retrogressive as well. A clever Judge therefore tries to dispose of the lA's at the earliest. Once it is done, the suit becomes ripe for trial and it can be listed for trial and the parties can expect disposal of their case soon.

5) Bench and the Bar, Co-operation: Apart from the above, for speedy disposal of cases, co-operation of the Bench and the Bar is essential. There must be a congenial atmosphere. To create -it, it is desirable to have occasional joint meetings of the Bench and the Bar, to be presided over by the senior-most member of the Bar. Let there be some sort of interaction on a cup of tea. It will definitely promote harmony which is essential for the smooth functioning of the Court.

There is yet a lot to be discussed on this subject. It is left to the good conscience of the Bench and the Bar of each locality.