CONSTITUTIONAL LAW

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Codification of Parliamentary Privileges in India - Some Suggestions
by Dr K. Madhusudhana Rao*

Cite as : (2001) 7 SCC (Jour) 21

The powers, privileges and immunities of either House of the Indian Parliament and of its Members and committees are laid down in Article 105 of the Constitution. Article 194 deals with the powers, privileges and immunities of the State Legislatures, their Members and their committees. The language of Article 105 is "mutatis mutandis" the same as that of Article 194 except that for the expression "Parliament" in Article 105 the expression "legislature of a State" is used in Article 194. Hence, a discussion on Article 105 would be relevant to Article 194 also.

Article 105(1) provides that subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

Article 105(2) contains two parts. Part one says 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. Part two provides that no person shall be liable in respect of the publication by or under the authority of either House of Parliament or any report, paper, vote or proceedings.

Article 105(3) again contains two parts. Part one says that in other respects the powers, privileges and immunities of each House of Parliament, and of the Members and the committees shall be such as may from time to time be defined by Parliament by law. Part two says that until so defined, the powers and privileges shall be those of the House of Commons of the Parliament of the United Kingdom and of its Members and committees at the commencement of the Constitution. Accordingly whenever a question arises with regard to the availability of a privilege, it becomes necessary to ascertain the powers, privileges and immunities of the House of Commons as on the 26-1-1950.1

It is to be noted that Article 105(3) is transitional in character and the Constituent Assembly contemplated that a statute would be made in due course after gathering sufficient evidence in this regard.2 The Constitution (44th Amendment) Act, 1978 made some cosmetic changes in Articles 105(3) and 194(3) (w.e.f. 20-6-1979) but the substance remains the same.

In India, some legislative privileges are expressly mentioned in the Constitution while the others are recognised in the Rules of Procedure and Conduct of Business in Lok Sabha framed under its rule-making power.

PRIVILEGES MENTIONED IN THE CONSTITUTION

1. Freedom of speech

For the effective functioning of parliamentary democracy, the freedom of speech in Parliament is guaranteed. This is to enable the Members to express themselves freely in the House without any fear or favour. In England, this freedom was established in the 17th century it self.3 This was fortified by the Bill of Rights in 1688.4 In India, the freedom of speech in Parliament is safeguarded by Article 105(1) and (2). A constitutional restriction on this freedom imposed by Article 121 (similarly Article 211) is that no discussion shall take place in any House with respect to the conduct of a Supreme Court Judge or a High Court Judge in discharge of his duties except when a motion for his removal is under consideration.

2. Immunity from civil and criminal proceedings

The first part of Article 105(2) provides 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. The scope of this immunity was examined by the Supreme Court in Tej Kiran Jain v. N. Sanjiva Reddy5. The Court held:

"This article confers immunity inter alia in respect of 'anything said ... in Parliament'. The word 'anything' is of the widest import and is equivalent to 'everything'. The only limitation arises from the words 'in Parliament' which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any court. This immunity is not only complete but is as it should be."6

This view came to be reiterated in P.V. Narasimha Rao v. State (CBI/SPE)7. In this case, on the scope of Article 105(2), the majority held that Article 105(2) puts negatively what Article 105(1) states affirmatively. Both sub-articles must be read together to determine their content. By reason of Article 105(2), no Member of Parliament is answerable in a court of law or any similar tribunal for what he has said in Parliament. A vote cast either by voice or gesture or with the aid of a machine is given the same protection like a spoken word. "What is protected is what has been said and a vote that has been cast."8 The expression "in respect of" in Article 105(2) is wide enough to confer absolute protection against court proceedings that have a nexus with what has been said and vote that has been cast in Parliament. The Supreme Court considered that this wide freedom of speech and vote is a "sine qua non" for the effective functioning of a parliamentary system of government.

By repelling the contention that if the bribe-takers have not committed any offence by reason of Article 105(2), the alleged bribe-givers have also not committed any offence, the Court said that those who have conspired with the Members of Parliament in the commission of that offence have no such immunity and that they can be prosecuted for that.

It was further held that the alleged bribe-takers and bribe-givers have committed breach of privilege and contempt of the House (Lok Sabha); hence Parliament may proceed against them for breach of privilege and contempt of House. It follows that the Supreme Court considered giving or taking of bribes by or to the Members of Parliament in respect of anything said or any vote cast by them on the floor of the House as a breach of privilege and contempt of House.

Justice G.N. Ray, in a separate but concurring opinion observed that the underlying object in guaranteeing freedom of speech and freedom to vote should be promoted by giving a wide interpretation to the expression "in respect of". If so interpreted, an action impugned in a court proceeding which has a nexus with the vote cast or speech made in Parliament is protected by Article 105(2).

In the minority view, Agarwala, J. for himself and on behalf of Dr A.S. Anand, J. (as he then was) held that Article 105(2) does not protect the bribe-takers and the bribe-givers and hence they can be prosecuted before the criminal courts.

The minority ruled that an interpretation of the provisions of Article 105(2) which would enable a Member of Parliament to claim immunity from prosecution in a criminal court for an offence of bribery in connection with anything said by him or a vote given by him in Parliament or any Committee thereof and thereby place such Members above law would not only be repugnant to healthy functioning of parliamentary democracy but would also be subversive of the rule of law which is also a basic feature of the Constitution.

The minority judgment also reasoned that the offence of bribery is complete with acceptance of the money or an agreement to accept money is concluded and is not dependent on the performance of the illegal promise by the receiver. The receiver of money will be treated to have committed the offence even when he defaults in the illegal bargain. Hence the criminal liability incurred by a Member of Parliament who has accepted bribe for speaking or giving his vote in Parliament in a particular manner arises independently of the making of the speech or giving of vote by the Member and the said liability cannot be regarded as a liability in respect of anything said or any vote given in Parliament. Hence the protection granted under Article 105(2) cannot be invoked by any of the appellants to claim immunity from prosecution.

The Judges constituting the minority felt that although at common law, offering of bribe to or giving of bribe by the Members of Parliament was not treated as an offence but as a matter of breach of privilege of the House of Commons by the English courts at the commencement of the Constitution in 1950, this would not necessarily mean that the courts in India are precluded from trying the offence of bribery, if it were to be treated as an offence.

3. Right of publication of proceedings

Part two of Article 105(2) provides that no person shall be liable in respect of the publication by or under the authority of the House of Parliament of any report, paper, votes or proceedings. The Parliamentary Proceedings (Protection of Publication) Act, 1956 provided that no person shall be liable to any proceedings, whether civil or criminal, in any court in respect of the publication of a substantially true report of the proceedings of either House of Parliament unless it is proved that the publication of such proceedings was expressly ordered to be expunged by the Speaker.9 This position has been made much stronger by the insertion of Article 361-A by the Constitution (44th Amendment) Act, 1978.10

With regard to the other privileges, the following are recognised under the Rules of Procedure and Conduct of Business in Lok Sabha11 as well as by certain laws:

1. Freedom from arrest of Members in civil cases during continuance of the Session of the House and 40 days before its commencement and 40 days after its conclusion.12

2. Exemption of Members from liability to serve as jurors.13

3. Right of the House to receive immediate information of the arrest, detention, conviction, imprisonment and release of the Member.14

4. Prohibition of arrest and service of legal process within the precincts of the House without obtaining the permission of the Speaker.15

5. Prohibition of disclosure of the proceedings or decisions of a secret sitting of the House.16

6. All Parliamentary Committees are empowered to send for persons, papers and records relevant for the purpose of the enquiry by a committee.17

7. A Parliamentary Committee may administer oath or affirmation to a witness examined before it.18

8. The evidence tendered before a Parliamentary Committee and its report and proceedings cannot be disclosed or published by anyone until these have been laid down on the table of the House.19

9. The right to prohibit the publication of its debates and proceedings.20

10. Right to exclude strangers from the House.21

11. Right to commit persons for breach of privilege or contempt of the House, whether they are members of the House or not.

Fundamental rights and legislative privileges

As legislative privileges are not codified in India, the question whether fundamental rights control the privileges or not was considered by the Supreme Court in some cases.

In M.S.M. Sharma v. Sri Krishna Sinha22 the following legal principles were laid down by the Supreme Court on this issue:

1. As on 26-1-1950, the privilege of prohibiting the publication of its debates belonged to the House of Commons and as such by operation of Article 194(3), the Indian legislatures do have this privilege.

2. Article 194 is not subject to Article 19. Article 19(1)(a) is a general provision and Article 194 is a special provision. As a general provision cannot override a special provision, Article 194 will have overriding effect. To resolve conflict, if any, between these two articles, the rule of harmonious construction must be applied.

3. Deprivation of personal liberty as a result of proceedings before a Committee of Privileges was deprivation in accordance with the procedure established by law and hence Article 21 is not violated.

Courts and legislative privileges

When one examines the relationship between the courts and legislatures, the questions as to the authority to decide the existence of a privilege and as to whether the courts could examine the validity of a committal by a legislature for its contempt or breach of privilege etc. have to be addressed.23 In fact, the situations under which the legislatures claim privileges in India bring the courts in the arena quite often. In India, the legislatures may claim the privileges in three situations: (1) when the Constitution grants it specifically; (2) it has been created by a law of the legislature; (3) it was enjoyed by the House under Article 105(3) or 194(3).24 No doubt the courts in these circumstances cannot be denied any role in this area.

Some of the above-stated issues were examined by the Supreme Court in Kesava Singh In re25. In the majority opinion in this case (6:1), the following propositions of constitutional interpretation were laid down:

1. The power of construing Article 194 (also Article 105) in regard to the nature, scope and effect of the powers of the House rests with the judiciary of the country.

2. Under Article 226, the High Court has power to scrutinise the orders issued by the legislatures as the expression "any authority" in Article 226 includes the legislature also.

3. Article 211 provides unambiguously that the conduct of a Judge in the discharge of his duties can never become the subject-matter of any action taken by the House in the exercise of its powers or privileges conferred by the latter part of Article 194(3).

4. Article 212 ousts the jurisdiction of the courts in cases of regulation of procedure inside the House only and it does not act as a limitation on the powers of the court to test the legality of action.

5. The fact that the first part of Article 194(3) refers to future laws defining the privileges as being subject to the fundamental rights is a significant factor in construing the latter part of Article 194. Such a legislation would be "law" within the meaning of Article 13 and the courts will be competent to examine its validity vis-a-vis fundamental rights.

6. In England, at one time, the House of Commons was the highest court of justice. Because of this, the House of Commons came to be regarded as a superior court of record, with the result that the general warrants issued by the other superior courts were held to be exempt from the scrutiny by the courts in England by treating these warrants as conclusive. In India, the Legislative Assemblies never discharged any judicial function and their historical and constitutional background does not support their claim to be regarded as courts of Record in any sense.

This case does not settle the law of privileges in India for three reasons. Firstly, the relationship between fundamental rights in general26 and the legislative privileges was not spelt out clearly.27 Secondly, legally speaking, advisory opinions rendered by the Supreme Court under Article 143 are not binding on the President and this factor destroys the binding nature of a judicial precedent.28 Thirdly, the principles of law laid down by the Supreme Court in this advisory opinion are totally based upon the five questions that were limited to the facts and the circumstances of the case set out in the presidential reference. If the facts are different then the principles of law have to be laid down differently.29

On the whole, the law relating to legislative privileges is in an unsatisfactory position. As the legislative privileges are encroaching upon the freedoms guaranteed by Part III of the Constitution and also coming into clash with the powers of the courts, there is need to codify these privileges as immediately as possible defining the scope of the privileges including the "breach of privileges" and the "contempt of the House". It is to be noted that the Constitution of India already contains certain immunities and prerogatives for the President and the Governors under Article 361 and hence there should be no difficulty in giving recognition to certain legislative privileges. Further, it may be pointed out that the argument that the codification leads to curtailment of privileges is wholly misconceived as the privileges of the British House of Commons up to 1950 are clearly laid down and the same can be codified within the framework of the Indian Constitution. While codifying the legislative privileges under Articles 105(3) and 194(3), the following factors may be taken into consideration:

I. The constitutional position of the British Parliament and the Indian Parliament

Article 105(3) says with regard to the other powers, privileges and the immunities of each House of Parliament and of the Members and the committees that they shall be those of the House of Commons of the United Kingdom till a law is enacted in this regard by the Indian Parliament.30 Though a reference is made to the House of Commons of the British Parliament, the following differences between the British and Indian Parliament are to be noticed.

The dominant feature of the British Constitution is the doctrine of parliamentary sovereignty. It means that Parliament has the right to make or unmake any law whatsoever. Parliament has power to legislate on any topic and the courts in England are under a duty to apply the legislation made by Parliament and they cannot hold an Act of Parliament to be invalid or unconstitutional. It implies that the doctrine of unconstitutionality is alien to the British legal system so far as the parliamentary enactments are concerned.31

The Indian Parliament is the creature of a written Constitution which implies that Parliament has to work within the limitations imposed on it by the written document as this document is the fundamental law of the country. The legislative power of the Indian Parliament is subject to the constitutional provisions.32 Parliament has no power to legislate beyond the assigned subjects.33 Parliament and State Legislatures are prohibited from enacting any law inconsistent with the fundamental rights provided by Part III of the Constitution.34 Parliament can delegate law-making powers to the executive to a limited extent only.35 The legislative power of Parliament in the area of freedom of trade, commerce and intercourse throughout the territory of India is subject to certain limitations.36 The taxing powers of Parliament are subject to certain restrictions.37

The above-stated differences show that whereas the British Parliament is sovereign and supreme, the Indian Parliament is not supreme in that sense.38 This fundamental difference differentiates the constitutional position of both the institutions. This difference has necessarily to be taken into consideration while codifying legislative privileges.

II. The constitutional position of Article 21

Article 21 says that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The meaning, content and implications of Article 21 have undergone changes since 1950 because of human rights jurisprudence adopted by the activist judiciary in India. In 1950, "law" in Article 21 was interpreted in the sense of "lex" but not in the sense of "jus" implying thereby that any man-made law was sufficient to satisfy the requirement of "procedure established by law" in depriving the life or personal liberty under Article 21 provided the procedure laid down in such law was followed.39 This position was continued for 28 years. But in 1978,40 the meaning of "procedure established by law" was interpreted by the Apex Court as containing "fair, just and reasonable" procedure but not any type of procedure. It was further laid down that Articles 14, 19 and 21 are not mutually exclusive, implying that a law prescribing the procedure for depriving the "life" or "personal liberty" must satisfy the test of reasonable classification as laid down in Article 14, the test of reasonableness as laid down in Article 19 and the test of a fair, just and reasonable procedure as envisaged in Article 21. Further, in 1982 "law" in Article 21 is interpreted by the Supreme Court as including "ordinance" as imposed by the President under Article 123.41

If any person is deprived of his personal liberty for breach of privilege or contempt of the House which is not mentioned either in Article 105(1) or 105(2), obviously such deprivation is not under any law as no law has yet been enacted under Article 105(3) in this regard. The privileges that are mentioned under the rules framed by Parliament42 or State Legislatures43 do not have the status of law. As such, denial of right emanating from breach of these privileges amounts to deprivation of personal liberty without a valid law44 as envisaged under Article 21. Obviously the common law of England45 and Erskine Thomas May's Parliamentary Practice cannot be regarded as law within the meaning of Article 21 of the Constitution. Though it was explained away in some quarters that rules framed by the legislatures under their rule-making power is "law" within the meaning of Article 21,46 these rules framed for regulating the procedure and conduct of the business of the legislatures cannot claim the status of law on legislative privileges as the law-making power in respect of legislative privileges is expressly vested in Parliament and State Legislatures by virtue of constitutional provisions.47 This view gets strength from the fact that the rules of the legislatures containing the procedures are immune from judicial scrutiny by virtue of Articles 122 and 212, whereas a law and procedure enacted under the legislative entries is subject to basic constitutional discipline.

III. The position of the judiciary in the United Kingdom and in India

The following fundamental differences between the Indian and English judiciary make a case in favour of the Indian judiciary to claim greater scope of review power of legislative and executive acts compared to British courts.

There exists in England the principles of sovereignty of Parliament due to which courts in England have no power to apply the doctrine of unconstitutionality to parliamentary Acts. The courts are competent to review the decisions of the executive48 and not the parliamentary law under which the decision is taken.49 In the judicial review of administrative action certain common law grounds are available to the courts in England.50 This shows that the English courts have very limited powers in reviewing the legislative and executive acts.

In India, a written Constitution is working. It is regarded as the fundamental law of the country and all the legislative and executive acts must be consistent with this fundamental law. The power of judicial review is vested in the judiciary by virtue of Articles 13, 32, 136, 226, 299, 300 and 311. Therefore the doctrine of unconstitutionality is part of the constitutional scheme in India.51 The fundamental rights, operating as restrictions on the legislative and executive acts, the doctrine of judicial review and the limited amending power of Parliament are regarded as the basic features of the Indian Constitution.52 The interpretation of the Constitution is vested in the Supreme Court. The Supreme Court is the protector and guarantor of the fundamental rights,53 and is playing the role of a "sentinel on the qui vive"54. In addition to the constitutional remedies available, the common law grounds are also available to contest the legislative and executive acts before the courts. Therefore the power of judicial review is established on a much firmer ground in India than in England.55

IV. The theory of limited government, rule of law and dilution of executive privilege

Every democratic written Constitution is based on the theory of limited government which emphasises that the powers of various organs of the Government are limited by the Constitution. To keep the various organs within the bounds, the Constitution vested powers in the judiciary. The courts apply the "rule of law" values in preventing the Government from abusing the powers conferred on it by various laws. As a result of this, the traditional executive privileges have been diluted to a large extent. In India, the scope of the defence of sovereign immunity was reduced in favour of the individual.56 The State was held to be bound by a statute unless it was exempted expressly or by necessary implication.57 The governmental privilege to withhold documents (under Section 123 of the Indian Evidence Act, 1872) was diluted and the courts were held to have the right to inspect the document and decide whether the document in question needs the protection of Section 123 of the Indian Evidence Act, 1872.58 With a view to protect the persons who act upon the promises made by the Government and thereby altered their positions the doctrine of promissory estoppel has been applied against the Government.59 In awarding governmental contracts the governmental discretion was made subject to review under Article 14 to ensure fairness in administration.60

The constitutional principles that caused the dilution of the traditional privileges of one organ of the Government will have their own impact on the privileges of the other organs as well and this cannot be ignored while codifying legislative privileges in India.

Fifty years have elapsed since Independence and the experience gained in the working of the Constitution in this long period is sufficient to guide the process of codification of legislative privileges. It is, therefore, urged that steps to codify parliamentary privileges in India should be initiated at the earliest as otherwise it may become very difficult for us to fall back on this ancient British practice which may not have any relevance either in England or in India today.

*   Assistant Professor, Department of Law, Andhra University, Dr B.R. Ambedkar Postgraduate Centre. Return to Text

1. The situation makes the customs and precedents on parliamentary privileges that have become part of the English common law as detailed in Parliamentary Practice by Erskine May a schedule to the Indian Constitution defining the parliamentary privileges. G.S. Pathak, "Parliamentary Democracy" (Bombay, Bharatiya Vidya Bhavan, 1971) p. 26. Return to Text
2. H.M. Seervai, Constitutional Law of India Vol. II (Bombay, Tripathi, 1993) pp. 2180-81. Return to Text
3. Sir John Eliot case, 3. State Trials 294 - quoted in M.P. Jain Indian Constitutional Law (Bombay, Tripathi, 1987) p. 56. Return to Text
4. The Bill of Rights, 1688 laid down that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament. Return to Text
5. (1970) 2 SCC 272. In this case, the appellants, admirers and followers of Jagadguru Shankaracharya of Puri filed a suit in the Delhi High Court for a decree for Rs 26,000 as damages for defamation by the respondents on the floor of the Lok Sabha during a calling-attention motion. The defamatory statements attributed to the respondents had accused the Guru for his views on untouchability in unparliamentary language and depicted him as a "leperous dog". Return to Text
6. Ibid at 274. Return to Text
7. (1998) 4 SCC 626. In this case, some Members of Parliament and MLAs were accused of entering into a conspiracy by taking bribes to vote against a no-confidence motion brought against the then Central Government. Their plea of immunity from prosecution based on Article 105(2) was rejected by the Delhi High Court. On appeal, the majority ruled in their favour. The majority view was taken by S.P. Bharucha and Rajendra Babu, JJ. with whom G.N. Ray, J. concurred in a separate opinion. S.C. Agarwala and Dr A.S. Anand (as he then was) JJ. held a dissenting opinion. Return to Text
8. (1998) 4 SCC 626 at 708. Return to Text
9. This Act was repealed by the Congress Government during the Emergency in 1976. However, the Parliamentary Proceedings (Protection of Publication) Act, 1977 was passed by Parliament and it received the assent of the President on 18-4-1977. Return to Text
10. w.e.f. 20-6-1979. Return to Text
11. See Subhash C. Kashyap, Our Parliament (New Delhi, National Book Trust, 1995) at pp. 234-36. Return to Text
12. Section 135-A, Code of Civil Procedure, 1908. Return to Text
13. Supra Note 11. Return to Text
14. Rules 229 and 230 of the Rules of Procedure and Conduct of Business in Lok Sabha (New Delhi, Lok Sabha Secretariat, 1989), as quoted in Subhash C. Kashyap, supra note 11. Return to Text
15. Rules 232 and 233 Ibid. Return to Text
16. Rule 252 Ibid. Return to Text
17. Rules 269 and 270 Ibid. Return to Text
18. Rule 272 Ibid. Return to Text
19. Rule 275 Ibid. Return to Text
20. Rule 249 Ibid. Return to Text
21. Rule 248 Ibid. Return to Text
22. AIR 1959 SC 395. The facts of this case were that M.S.M. Sharma, the Editor of Searchlight, (from Patna) had published in his paper the full speech delivered by a Member at the sitting of the Bihar Assembly including the portions which had been expunged by the Speaker. For publishing the expunged portions, the petitioner was asked to show cause through a notice as to why action should not be taken against him. The petitioner challenged the notice as violative of Article 19(1)(a) and Article 21 of the Constitution. Return to Text
23. M.P. Jain, Indian Constitutional Law (Bombay, Tripathi, 1987) p. 66. Return to Text
24. Ibid at p. 68. Return to Text
25. AIR 1965 SC 745. This reference was a sequel to the passing of an order by an unprecedented Full Bench of 28 Judges, staying, under Article 226, the implementation of the U.P. Assembly Resolution ordering two Judges of the Allahabad High Court to be brought into custody before the Bar of the House to explain why they should not be punished for the contempt of the House. The two Judges had admitted the habeas corpus petition and granted bail to one Mr Kesava Singh who was undergoing imprisonment in pursuance of the Assembly Resolution declaring him guilty of the breach of privilege. The resolution of the Assembly and the stay order issued by the Full Bench resulted in a constitutional stalemate. Consequently the President referred the matter under Article 143 to the Supreme Court for its opinion. Return to Text
26. It was made clear that so far as Articles 21 and 22 are concerned, any privileges etc. which are claimed must be consistent with the articles in the context of Article 208 - V.N. Shukla, Constitutional Law, 1965, An. Sur. Ind.L., (1966), p. 20. Return to Text
27. Ibid. Return to Text
28. H.M. Seervai, Constitutional Law of India, Vol. II (Bombay, Tripathi, 1993) p. 2175. Return to Text
29. Ibid at p. 2173. Return to Text
30. Unamended Article 105(3). Return to Text
31. In substance, parliamentary sovereignty consists of a rule which governs the relationship between the courts and legislatures. See Wade and Philips, Constitutional and Administrative Law (London, ELBS: 1978) p. 59 (9th Edn.). Return to Text
32. Article 245(1). Return to Text
33. Article 246 read with Schedule VII of the Constitution. Return to Text
34. Article 13. Return to Text
35. Delhi Laws Act 1912, In re, AIR 1951 SC 332; Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166; M.K. Papiah v. Excise Commr., (1975) 1 SCC 492; Harishankar Bagla & Sons v State of M.P., AIR 1954 SC 465; Makhan Singh Tarsikka v. State of Punjab, AIR 1964 SC 381; Edward Mills Co. Ltd. v. State of Ajmer, AIR 1955 SC 25; Rajnarain Singh v. Chairman, PAC, AIR 1954 SC 569; Jalan Trading Co.(P) Ltd. v. Mill Mazdoor Sabha, AIR 1967 SC 691; Devi Das Gopal Krishan v. State of Punjab, AIR 1967 SC 1895; Basant Kumar Sarkar v. Eagle Rolling Mills Ltd., AIR 1964 SC 1260. Return to Text
36. Articles 301-304. Return to Text
37. Article 289. Return to Text
38. M.P. Jain, Indian Constitutional Law (Bombay, Tripathi, 1987) pp. 74-75. Return to Text
39. A.K. Gopalan v. State of Madras, AIR 1950 SC 27. Different freedoms guaranteed by Part III of the Constitution were treated as separate islands and one cannot be linked with the other as per the view of the Apex Court in this case. Return to Text
40. Maneka Gandhi v. Union of India, (1978) 1 SCC 248; The movement for linking articles guaranteeing freedoms was started in 1970 itself when the Apex Court linked Article 31(2) with Article 19(1)(f) in Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248. Return to Text
41. A.K. Roy v. Union of India, (1982) 1 SCC 271. Return to Text
42. Article 118(1). Each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and conduct of its business. Return to Text
43. Article 208(1). A House of the legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and conduct of its business. Return to Text
44. A valid law, in the constitutional sense, is one which is enacted by a competent legislature under its legislative power in accordance with Articles 245, 256 read with Schedule VII of the Constitution. Return to Text
45. Even in England, parliamentary privileges were not codified and they are largely based upon custom and precedent - See S.L. Shakdhar, The Codification of Legislative Privileges in Alice Jacob (Edn.), Constitutional Developments Since Indepedence (New Delhi, ILI, 1975) p. 136. Return to Text
46. M.P. Jain, Indian Constitutional Law (Bombay, Tripathi, 1987) p. 70. Return to Text
47. Articles 105(3) and 194(3), Entry 74 of the Union List, Entry 39 of the State List, Schedule VII of the Constitution. Return to Text
48. De Smith's, Judicial Review of Administrative Action (London, Stevens and Sons, 1980) p. 28. Return to Text
49. The proposition is that the law is valid but the action taken under such law is not/may not. Return to Text
50. They are: 1. doctrine of ultra vires, 2. abuse of discretion, 3. irrelevent consideration, 4. improper purpose, 5. error of law, 6. unauthorised delegation, 7. violation of principles of natural justice etc. See Wade and Phillips, Constitutional and Administrative Law (London, ELBS, 1978) pp. 587-605. Return to Text
51. M.P. Jain, Indian Constitutional Law (Bombay, Tripathi, 1987) pp. 829-840. Return to Text
52. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625. Return to Text
53. Romesh Thappar v. State of Madras, AIR 1950 SC 124 at 126. Return to Text
54. State of Madras v. V.G. Row, AIR 1952 SC 196 at 199. Return to Text
55. Some of the Common law grounds available in India are: 1. mala fide, 2. improper purpose, 3. irrelevant consideration, 4. leaving out relevant consideration, 5. colourable exercise of power, 6. condition precedent, 7. acting mechanically, 8. acting under dictation etc. See Jain and Jain, Principles of Administrative Law (Bombay, Tripathi, 1986) pp. 550-611. Return to Text
56. State of Rajasthan v. Vidyawati, AIR 1962 SC 933; Shyam Sunder v. State of Rajasthan, (1974) 1 SCC 690; Satya Wati Devi v. Union of India, AIR 1967 Del 98; State of Orissa v. Padmalochan Panda, AIR 1975 Ori 41; Khatri (III) v. State of Bihar, (1981) 1 SCC 635; Rudul Sah v. State of Bihar, (1983) 4 SCC 141; Sebastian M. Hongray v. Union of India, (1984) 3 SCC 82; Saheli, a Women's Resources Centre v. Police Commr., Delhi, (1990) 1 SCC 422; Nilabati Behera v. State of Orissa, (1993) 2 SCC 746. Return to Text
57. Supdt. and Remembrancer of Legal Affairs, W.B. v. Corpn. of Calcutta, AIR 1967 SC 997. Return to Text
58. State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493; State of U.P. v. Raj Narain, (1975) 4 SCC 428; S.P. Gupta v. Union of India, 1981 Supp SCC 87. Return to Text
59. Amar Singhji v. State of Rajasthan, AIR 1955 SC 504; Union of India v. Anglo Afghan Agencies, AIR 1968 SC 718; Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409; Gujarat State Financial Corpn. v. Lotus Hotels (P) Ltd., (1983) 3 SCC 379; Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 369. Return to Text
60. Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489. Return to Text