The Indian Constitution provides for parliamentary privileges to the Houses of Parliament and the State legislatures making a reference to relevant British practices as may be amended.
The Parliament in Britain had its own history and thus a clear necessity of the same for myriad reasons and situations. Indian parliamentarians have written their own history over 58 years and perhaps have made it clear that they are undeserving of most of such privileges.
No doubt a parliamentarian must have the independence to fearlessly represent his people without a sword hanging over him; thus the necessity of the protection. But to what extent should this protection go ?
A classic case of the undeserving nature of the protection was seen in the JMM bribery case wherein MPs voted in favour of a motion in view of illegal consideration (read bribes) and yet got away on a strict reading of the constitutional provisions providing for these privleges by the Supreme Court.
The matter revisited the Supreme Court when certain MPs who were disqualified from the Lok Sabha (and quite rightly) for having sought monetary consideration to pose queries in Raja Ram Pal v. Speaker, Lok Sabha. These MPs challenged the action suspending them. The court posed 2 questions : 1) Did the House have such a power 2) Does the court have the power to even examine the manner of exercise of such power/ privilege ?
The court answered the first question in the affirmative and thus sealed the fate of the MPs in question. More significantly, the court also answered the second question in the affirmative while breaking fresh ground (and in my humble view impliedly overruled the JMM bribery case).
It inter alia held that though on limited grounds, the exercise of a parliamentary privilege is indeed amenable to judicial review simply because the Constitution does not allow absolutism of either of the 3 pillars of the Republic. As painful as it may have been for people like the present Speaker of the Lok Sabha, the court rightly held that the separation of powers theory could not be taken to the extreme of being treated as a fairy tale. It also rebuffed any reliance on British precedent simply because of the difference in conditions and the variance in our constitutional set up.
More importantly, the court presumably mindful of the level of politics and attitude of politicians in our country, in an unprecedented observation stated as follows:
Ordinarily, the legislature, as a body, cannot be accused of having acted for an extraneous purpose or being actuated by caprice or mala fide intention, and the court will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters, but if in a given case, the allegations to such effect are made, the court may examine the validity of the said contention, the onus on the person alleging being extremely heavy;
After the SC laid down this land mark dicta, the Maharashtra Assembly has provided a classic opportunity for the court to exercise this extraordinary facet of judicial review by imprisoning the State Election Commissioner. The onus will be high but if the commissioner’s statements are to be believed, he will make the break.
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