constitution project work - copy

8/8/2019 Constitution Project Work - Copy

1/36

ATTENDANCE AND DISCIPLINE

OF THE MEMBERS OF

PARLIAMENT

A PROJECT SUBMITTED TO AMITY LAW SCHOOL,AUUP

IN PARTIAL FULFILLMENT OF THE REQUIREMENT OF

INTERNAL EVALUATION FOR THE DEGREE OF

BACHELOR OF LAW

SUBMITTED BY:-

SHRUTI SHRIVASTAV

A3208308150

UNDER THE SUPERVISION OF

Dr. J.S. NAIR


2/36

INTRODUCTION

The term Parliament has a meaning. In French, they call it Parlement. It

is derived from the word parlor, parle or parley which means to talk,

talking (verb) or talk (noun). Originally the word was applied to the afterdinner gossips of monks in their cloisters. The term was used for national

assemblies after the middle of the thirteenth century, which took some

definite shape in what was later on called in Britain. The Model Parliament

of 1296. The word signified at first the talk itself, the conference held, not

the persons holding it. Gradually it came to connote the body of persons

assembled for conference.

Parliament Ruskin said, Is a talking shop. It is literally true inasmuch as

Parliament is meant for taking. The Constitution of India provides for a

bicameral legislature at the Union level. 1

Parliament is the supreme legislative body of India. The Indian Parliament

comprises of the President and the two Houses-Lok Sabha(House of the

People) and Rajya Sabha(Council of States). These three collectively

constitute Parliament (article 79 of the Indian Constitution).

The President has the power to summon and prorogue either House of

Parliament or to dissolve Lok Sabha. 2

The Constitution of India came into force on January 26, 1950. The firstgeneral elections under the new Constitution were held during the year

1951-52 and the first elected Parliament came into being in April, 1952, the

Second Lok Sabha in April, 1957, the Third Lok Sabha in April, 1962, the

Fourth Lok Sabha in March, 1967, the Fifth Lok Sabha in March, 1971, the

Sixth Lok Sabha in March, 1977, the Seventh Lok Sabha in January, 1980,

the Eighth Lok Sabha in December, 1984, the Ninth Lok Sabha in

December, 1989, the Tenth Lok Sabha in June, 1991, the Eleventh Lok

Sabha in May, 1996, the Twelfth Lok Sabha in March, 1998 and Thirteenth

Lok Sabha in October, 1999 and so on. Now one by one we will discuss

both the houses of parliament.

COUNCIL OF STATES.-

1 Subash C.kashyap, parliamentary procedures, 2nd edition p. 32 V.N Shukla, Constitution Of India, 10th edition p. 359-360


3/36

The origin of Rajya Sabha can be traced back to 1919, when in pursuance to

the Government of India Act, 1919, a second chamber known as the Council

of States was created. This Council of States, comprising of mostly

nominated members was a deformed version ofsecond chamber withoutreflecting true federal features. The Council continued to function till India

became independent. The Rajya Sabha, its Hindi nomenclature was adopted

in 23 August, 1954.

Article 80 speaks about Composition of the council of states. The Council

of States consists of two classes of members: (a) Representatives of the

states, and (b) the Presidents nominees.

(a) The maximum limit of representatives of the States is fixed at 238

[Article 80 (1) (b)]. The seats are allotted among the States as detailed

in the Fourth schedule of the Constitution. The representatives of eachstate shall be elected by the members of State legislative assembly in

accordance with the system of proportional representation by means

of single transferable vote [Article 80 (1)(b) and 80 (4)]. This method

of election ensures that only such members are chosen for Rajya

Sabha as are cognizant with the needs and attributes of the State

concerned. It also underlines the idea that Rajya Sabha represents the

States as such.3The representative of the union territories shall be

chosen in such manner as Parliament may by Law prescribe.

(b) The President nominates 12 members to the council of States. The

members to be nominated by the president shall consist of persons

having special knowledge and practical experience in respect of

literature, science, art and social service [Article 80 (1)(a) and Article

80 (3)].4

Rajya Sabha is a permanent and continuing body and is not subject to

dissolution [Art. 83(1)].However, one third of the members retires every

second year [Art. 83(1)] , and are replaced by newly elected members. Each

member is elected for a term of six years. The basic Purpose after this is that

Rajya Sabha doesnt get stale and remains in touch with the currentproblems of the community due to periodic infusion of fresh blood.5

The Vice President of India is the ex-officio Chairman of Rajya Sabha. The

3 Prof. M P Jain, Indian Constitutional Law, 5th edition p. 244 V.N Shukla, Constitution Of India, 10th edition p. 3605 Prof. M P Jain, Indian Constitutional Law, 5th edition p. 24


4/36

House also elects a Deputy Chairman from among its members. Besides,

there is also a panel of "Vice Chairmen" in the Rajya Sabha. The senior most

Minister, who is a member of Rajya Sabha, is appointed by the Prime

Minister as Leader of the House.

HOUSE OF THE PEOPLE.-

Parliamentary institutions in India, with all their modern ramifications, owe

their origin to India's British connections. Until 1853, there was no

legislative body distinct from the Executive. The Charter Act of 1853, for

the first time provided some sort of a legislature in the form of a 12 member

Legislative Council. The Indian Independence Act, 1947 declared the

Constituent Assembly of India to be a full sovereign body. Apart from being

a Constitution drafting body, it also assumed full powers for the governance

of the country. With the coming into force of the Constitution on 26 January,1950, the Constituent Assembly functioned as the Provisional Parliament

until the first Lok Sabha, then known as the House of People, and was

constituted following General Elections in 1952. Lok Sabha, the Hindi

nomenclature was adopted on 14 May, 1954.

The Lok Sabha is composed of representatives of people chosen by direct

election on the basis of Universal Adult Suffrage [Article 80 (1)(a)]. That is,

Every citizen of India who is not less than 18 years of age on a date fixed by

Parliament and does not suffer from any disqualification as laid down in the

Constitution, or in any law on the ground of non-residence, unsoundness of

mind, crime, or corrupt or illegal practice, is entitled to vote at an election

for the Lok Sabha [Art. 326].6

Article 81 of the Constitution describes the composition of the House of

People. It shall consist of

I. not more than 530 members directly elected by the voters of the states;

II. not more than 20 members to represent the Union Territories [Article

80 (1)(a) and (b)] to be chosen in such a manner as Parliament may by

law provide;III. Not more than 2 members to be nominated by the President from the

Anglo-Indian Community under Article 331.7

The maximum strength of the House envisaged by the Constitution is 552.

At present, the strength of the House is 545 members. If, in the opinion of

6 Prof. M P Jain, Indian Constitutional Law, 5th edition p. 267 V.N Shukla, Constitution Of India, 10th edition p. 362


5/36

Hon'ble President, any community is not adequately represented in the

House. The total elective membership is distributed among the States in such

a way that the ratio between the number of seats allotted to each State and

the population of the State is, so far as practicable, the same for all States

[Art. 81(2)(a) and Art. 81(3) ]. This provision does not apply to a State

having a population of less than six millions [Proviso to Art. 81(2)].8 In this

regard the Constitution (Thirty-first Amendment) Act of 1973 provides

effect that the representation to the House of People from the smaller States

such as Himachal Pradesh, Nagaland, Tripura, Jammu and Kashmir, and

Manipur, Meghalaya is maintained.9

The term of the Lok Sabha, unless dissolved, is five years from the date

appointed for its first meeting. However, while a proclamation of emergency

is in operation, this period may be extended by Parliament by law for a

period not exceeding one year at a time and not extending in any case,beyond a period of six months after the proclamation has ceased to operate.

Lok Sabha has been organized on practically similar lines as the lower

chambers in Britain, U.S.A., Canada and Australia. The House of Commons

in Britain, like the Lok Sabha is elected directly by the people for 5 years by

adult suffrage. In Australia, the House Of Representatives is elected directly

by the people for three years from single member constituencies by

preferential vote. All citizens without disabilities have the right to vote and

voting is compulsory.10 Seats in the House are distributed among the States

according to population, with a minimum of five to each State.

In Canada, representation in the House of Commons is based on provincial

population with some weightage in favours of the smaller Provisions. There

is universal suffrage. The normal life of the house is five years. In the

U.S.A., the House of Representatives is elected directly by the people for

two years. Seats are apportioned among the several States by the Congress

on the basis of Population.

The U.S Constitution doesnt prescribe any voting qualification for electionto House. The regulation of suffrage for the House is within the control of

each State subject to the stipulation that this should be the same as the

requisite for electors of the most numerous branch of the State Legislature,

8 Prof. M P Jain, Indian Constitutional Law, 5th edition p. 279 V.N Shukla, Constitution Of India, 10th edition p. 36310 Prof. M P Jain, Indian Constitutional Law, 5th edition p. 290


6/36

and that none is to be excluded from voting on the grounds of sex, colour or

previous conditions of servitude. This pattern differs from that in India

where adult has been prescribed by the Constitution.11

QUALIFICATION OF MEMBERSHIP OF PARLIAMENT.-

A person for being chosen as a member for Parliament must be -

Be a citizen of India;

not less than 30 years of age in the case of the Council of

States and not less than 25 years of age in the case of House of

the People, [Art. 84(b)]

Possessing such other qualification as may be prescribed by

Parliament,[Art, 84(c)]

Taken an oath before some person authorized in the behalf by

the Election Commission for this purpose [Art. 84(a)].12

The Representation of the People Act, 1951, requires that a persons name

should be registered as a voter in any Parliament Constituency.

The Constitution does not prescribe any educational qualification for

membership of Parliament13.

DISQUALIFICATION OF A MEMBER.-

Article 101 enumerates the situations in which the seat of a member of either

House of Parliament becomes vacant. These are the following:

Where a person is a member of two Houses of Legislature- both

Houses of Parliament, or Parliament and House of a State

Legislature- his seat in one of the Houses is vacated as provided

in clauses (1) and (2).

If a member of either House of Parliament becomes subject to

any of the disqualifications laid down in Article 102.

If a member of either House of Parliament resigns his seat.

If, for a period of sixty days, a member of either House ofParliament is without permission of the House absent from all

meetings thereof, the House may declare his seat vacant.

11 Prof. M P Jain, Indian Constitutional Law, 5th edition p. 28

12 The form of the oath is set out in the Third Schedule to the Constitution.13 Dr.J.N.Pandey , The Constitutional Law of India, 45th edition p. 452


7/36

A significant amendment of clause (3) was made by the Constitution

(Thirty-third Amendment) Act, 1974. The statement of Objects and Reasons

stated:

In the recent Past, there have been instances where coercive measures have

been resorted to for compelling members of a legislative assembly to resign

their membership. If, this is not checked, it might become difficult for

legislatures to function in accordance with the provisions of the constitution.

It is therefore, proposed to amend the above two articles14 to impose a

requirement as to acceptance of resignation by the speaker or the chairman

and to provide that the resignation shall not be accepted by the speaker or

the Chairman if he is satisfied after making such inquiry as he thinks fit that

the resignation is not voluntary or genuine.

Two things to be noticed are firstly, if a member of either House resigns, the

termination of membership from the House is not automatic and it is madeDependent upon the acceptance of such resignation by the Speaker or the

chairman, as the case may be, unlike the cases of president, the Vice-

President, the speaker, the Deputy Speaker, the Judges of the Supreme Court

or High Court in Articles 56(a), 67(a), 94, 124(2)(a) and 217(1). Thus the

Resignation may be withdrawn by the member before it is finally accepted,

held in Union Of India v. Gopal Chandra Misra15. Secondly, the Speaker

or the Chairman is given the Power to inquire whether such resignation is

voluntary or genuine.

Under Clause (4), it is the decision of the House whether to declare a seat

vacant of a member for his absence for a period of sixty days. It was held in

K.Anand Nambiar v. Chief Secretary16, It is common ground that if a

Member of Parliament is detained or otherwise prevented from attending the

session of the House for Personal reasons, he may ask for permission of the

House for his absence, and such permission is granted.

A person is also disqualified for being chosen and for continuing as a

Member of Parliament if he suffers from following disqualifications [Art.

102]:(a) If he holds any office of Profit under central or the State Government

other than an office declared by Parliament by Law not to disqualify

its Holder[Art. 102(1)].

14 Arts. 101 and 19015 (1978) 2 SCC 301: AIR 1978 sc 694.16 AIR 1966 SC 657:(1966) 2 SCR 406.


8/36

(b) If he is of unsound mind and a competent court has declared him to be

so.

(c) If he is an undischarged insolvent.

(d) If he is not a citizen of India, or has voluntarily acquired the

citizenship of a foreign state.

(e) If he is so disqualified under any law made by Parliament. For this

purpose, Parliament has prescribed the necessary disqualifications in

the representation of People Act, 1951.

A minister in the Central or the State Government is not considered as

holding the office of profit [Art. 102(2)]

Disqualifications laid down in The Representation of the People Act, 1951,

stated briefly, are:

1) Corrupt practice at an election;2) Conviction for an offence resulting in imprisonment for two or more

years, or for an offence under certain provisions of the Indian Penal

Code [Ss. 153A, 171E and 171F, 5054(2) or 505(3)], or of the

Representation of the People Act, 1951 [Ss. 125,135,136(2)(a)], or

under the protection of Civil Rights Act,1955, or conviction for

contravening a law providing for the prevention of hoarding or

profiteering or of adulteration of food and drugs and sentenced to

imprisonment for not less than six months;

3) Failure to lodge an account for election expenses;

4) Having a subsisting contract for supply of goods to, or execution of

any work undertaken by, the government;

5) Being a managing agent, manger or secretary of a corporation in

which government has not less than 25 per cent share;

6) Dismissal from government service for corruption or disloyalty to the

state.17

In V.C Shukla v. Purshottam Kaushik18, it was stated that some of these

disqualifications subsist only for a period of 3 to 6 years, but the Election

Commission is authorized to remove or reduce this Period. But in Baboolalv. Kankar Mujare 19, it was held that Detention of a person under any law

17 Prof. M P Jain, Indian Constitutional Law, 5th edition p. 28

18 AIR 1981 SC 547:(1981) 2 SCC 8419 AIR 1988 MP 15


9/36

pertaining to preventive detention is not a disqualification for membership of

Parliament.

OFFICE OF PROFIT.-

Clause (a) of Article 102 enacts that a person shall not be disqualified for

being chosen as, and for being, a member of either House of Parliament if he

holds any office of profit under the Government of India or the government

of any State, other than an office declared by Parliament by law not to

disqualify its holder. The rationale behind the constitutional provision [Art.

102(1)(a)] is explained by the Supreme Court in the Case ofAshok Kumar

Battacharya v. Ajoy Biswas20, there should not be any conflict between the

duties and the interests of an elected member and to see that the elected

member carries on his duties freely and fearlessly without being subjected to

government pressure. In other words, the provision appears to have beenmade in order to eliminate or reduce the risk of conflicts between duty and

self-interest amongst the members of Parliament.

The expression office of profit is not defined in the constitution or in The

Representation of the People Act, 1951. It is, however, clear that before a

person can held to be disqualified under Article 102(1)(a) three things must

be proved:

a) That he held an office,

b) That it was an office of profit andc) That it was an office under the Government of India or the State

Government.

This was held in Deorao v. Keshav Laxman Borkar, AIR 1968 Bom 314.

Thus, if a person does not hold an office he is not disqualified even if he is

making a profit. For example, a Lawyer engaged by the government to

appear in a case on its behalf and paid fees by it21, a person holding a permit

to ply buses, or a licensed stamp vendor or deed writer, 22 or a share holder

in a company transporting postal articles and mail bags, 23 holds no office

and is thus not qualified to seek election to a House.

20 AIR 1985 SC 211, 215: (1985) 1 SCC 151. Also,Satrucharla Chandrasekhar Raju v. Vyricherla

Pradeep Kumar Dev., AIR 1992 SC 1959: ( 1992) 4 SCC 404.21Kanta Kathuria v. Manak Chand , AIR 1970 SC 694: (1969) 3 SCC 26822Yugal Kishore Sinha v. Nagendra Prasad Yadav, AIR 1964 Pat., 543; Benomali Behera v.

Markanda Mahapatra, AIR 1961 Ori 20523Satya Prakash v. Basir Ahmed Qureshi, AIR 1963 MP 316. Also, Brahma Dutt v. Paripur na nand,

AIR 1972 All 340


10/36

In MacMillan v. Guest 1942 AC 561, 566. , Lord Wright observed:

The word office is of indefinite content. Its various meanings cover

four columns of the New English Dictionary, but I take as the most relevant

for purposes of this case the following: a position or place to which certain

duties are attached, specially one of a more public character.24

The office of Profit must be under the Central or any State Governments.

For deciding this there are five tests.-

1) Whether Government has power of Appointment.

2) Whether Government ha the right to remove or dismiss the holder of

office.

3) Whether Government pays remuneration.

4) Whether the functions which the holder performs are for Government.

5) Whether the Government exercises control over the performance ofthose functions.25

THE PARLIAMENT (PREVENTION OF

DISQUALIFICATION), ACT 1959.-

This is an exception to the office of Profit. Parliament has power to declare

the offices of profit the holders of which would not be disqualified for its

membership [Art. 102(1)(a)]. Accordingly, Parliament has enacted the

parliament (Prevention of Disqualification), Act 1959, which lists thevarious categories of offices the holders of which would not be disqualified

for membership of Parliament.

The Act does not define the term office of profit for the obvious reason

that the term occurs in the Constitution and its final interpretation rests with

the courts and not with Parliament. In case of an office other than those

exempted under the Act, the final word on whether it is an office of profit

or not rests with the courts.26

Since the passing of the Act, the circumstances have considerably changed.Recent events have shown that the present law is inadequate to deal with the

situation. The state of Uttar Pradesh has enacted a law declaring a number of

24 Approved by the supeme court in Mahadeo v. Shantibai,(1969) 2 SCR 422, 426 and Kanta Kathuria

(Smt) v. Nanak Chand Surana,(1969) 3 SCC 268, 272, 278: AIR 1970 SC 694.25Abdul Saquur v. Rishal Chandra, AIR 1958 SC 5226 Prof. M P Jain, Indian Constitutional Law, 5th edition p. 36


11/36

offices not to be regarded as office of profit. The matter arose when the

samajwadi Partys Rajya Sabha. M.P. Jaya Bachchan, was disqualified

from the membership of Rajya Sabha on the ground that she was holding an

office of profit in the capacity of the chairperson of the U.P. Film

Development Council. Subsequently a number of petitions were filed with

the president for disqualifying certain number of Parliament including Mrs.

Sonia Gandhi whois an M.P. and Chairman of National Advisory Council

of the UPA. Fearing any proposed action by the Election Commission and

from being disqualified from the membership of Lok Sabha she resigned

from the Lok Sabha and also from the Chairperson of National Advisory

Council. These event shows that present law should be strengthened and

should also be made applicable to the States. The definition of Office Of

Profit has to be based on sound logic and common sense giving no chance

of Political maneuvering.27

COMMITTEE ON ABSENCE OF MEMBERS

Lok Sabha has a committee on Absence of Members to consider all

application form members for leave of absence from sittings of the House, to

examine every case when a member has been absent for sixty or more days

from the sittings of the House and to report whether the absence should be

condoned, or the seat of the member declared vacant by the House. Rajya

Sabha has no such committee, but the seat of a member becomes vacant

because of his absence when the House passes a motion for the purpose.

The seat of a member in a House does not become vacant automatically by

his absence, but the House has power to declare it vacant. This is different

from the case of a member becoming subject to disqualification when his

seat becomes vacant automatically.28

PARLIAMENTARY PRIVILEGES.-

Powers, privileges, etc., of the Houses of Parliament and of the members and

committees thereofArticle 105. (1). Subject to the provisions of this Constitution and the rules

and standing orders regulating the procedure of Parliament, there shall be

freedom of speech in Parliament.

27 Dr.J.N.Pandey , The Constitutional Law of India, 45th edition p. 45428 Prof. M P Jain, Indian Constitutional Law, 5th edition p. 42


12/36

(2). No member of Parliament shall be liable to any proceeding in any court

in respect of anything said or any vote given by him in Parliament or any

committee thereof, and no person shall be so liable in respect of the

publication by or under the authority of either House of Parliament of any

report, paper, votes or proceedings.

(3). In other respects, the powers, privileges and immunities of each House

of Parliament, and the members and the committee of each House, shall be

such as may from time to time be defined by Parliament by law, and until so

defined, [shall be those of that House and of its members and committees

immediately before the coming into force of Section 15 of the Constitution

(44th Amendment) Act, 1978].

(4). The provision of clauses (1), (2), and (3) shall apply in relation to

persons who by virtue of this Constitution have the right to speak in, andotherwise to take part in the proceedings of, a House of Parliament or any

committee thereof as they apply in relation to the members of Parliament.

What do you mean by Parliamentary Privileges?

Parliamentary Privilege consists of the rights and immunities which the two

Houses of Parliament and their members and officers possess to enable them

to carry out their Parliamentary functions effectively. Without this protection

members would be handicapped in performing their Parliamentary duties

and authority of Parliament itself in confronting the executives and as aforum for expressing the anxieties of citizens would be correspondly

diminished. (Report of the Joint Committee on Parliamentary Privilege

Known as Nichollas Report 1999). The Privileges of each Houses have both

external and internal aspects: they protect it against outside interference that

would erode freedom to conduct its own proceedings; they impose duties on

its members, restraining them from conduct that would abuse their

privileged position.29

Parliamentary privilege is part of the lex et consuetude parliament, theLaw and the custom of Parliament. Sir Thomas Erskine May has defined theexpression Parliamentary privileges as follows: The sum of the peculiar

rights enjoyed by each house collectively is a constituent part of the High

Court of Parliament, and by members of each house of parliament

individually, without which they cannot discharge their functions, and which

29 D.D.Basu , Commentary on the Constitution of India, 8th edition, Volume 4, p. 5034


13/36


14/36

privilege is its ancillary character a necessary means to fulfillment of

functions. Individual members enjoy privileges because the House cannot

perform its function without unimpeded use of the services of its members

and by each House for the protection of its members and the vindication of

its own authority and dignity.

The important privileges of each house of parliament, its members and

committees may be said to be:

i) Freedom of speech in parliament.(Art.105 (1) of the Constitution of

India).

ii) Immunity to a member from any proceedings in any court in respect

of anything said or any vote given by him in parliament or any

committee thereof. [art. 105(2) of the constitution of India]

iii) Immunity to a person from proceedings in any court in respect of the

publication by or under the authority of either houses of parliament of

any report, paper. Votes or proceedings.[Art. 105(2) of the

constitution].

iv) Prohibition on the courts to inquire into the proceedings of parliament.

[Article 122 of the constitution]

v) Freedom from arrest of the members in the civil cases during the

continuance of the session of the house and 40 days before its

commencement and 40 days after its conclusion. [section 135A of thecode of the civil procedure]

vi) Exemption of the members from liability to serve as jurors;

vii) Right of the house to receive immediate information of the arrest,

detention, conviction, imprisonment, and release of a member. (Rules

of 220 and 230 of the rules of procedure and conduct of business in

lok sabha,)

viii) Prohibition of the arrest and service of legal process within the

precincts of the house without obtaining the permission of the

speaker. (rule 232 and 233 of the rules of procedure and conduct of

business in lok sabha,)

ix) Prohibition of the disclosure of the proceedings or decision of a secret

sitting of the house. (rule 252 of the rules of procedure and conduct of

business in lok sabha)


15/36

x) Members or officers of the house are not to give evidence or produce

documents in courts of law, relating to the proceedings of the house

without the permission of the house.

xi) Members or the officers of the house are not to attend as witnesses

before the other house or a committee thereof or before a house ofstate legislature or a committee thereof without the permission of the

house and they cant be compelled to do so without their consent.

xii) All parliamentary committee are empowered to send for persons,

papers, and records relevant for the purpose of the inquiry by a

committee. A witness may be summoned by a parliamentary

committee who may be required to produce such document as are

required for the use of a committee. (rules 269 and 270 of the rules of

procedure and conduct of business in lok sabha)xiii) A parliamentary committee may administer oath or affirmation to a

witness examined before it. (rules 272 of the rules of procedure and

conduct of business in lok sabha, );

xiv) The evidence tendered before a parliamentary committee and its

report and proceedings cannot be disclosed or published by anyone

until these have been laid on the table of the house. (rules 275 of the

rules of procedure and conduct of business in lok sabha).31

The most important parliamentary privileges is that of freedom of speechwhile performing parliamentary duties. Two privileges, namely,

freedom of speech and freedom of publication of proceedings, are

specifically mentioned in clauses (1) and (2) of Article 105. With

respect to other privileges of each House, clause (3) before its

amendment in 1978 laid down that the powers, privileges and

immunities shall be those of the House of Commons of the United

Kingdom at the commencement of the Constitution until they are

defined by an Act of Parliament. Though since 1978 position haschanged in so far as the privileges of parliament, its members and

committees have to be determined on the basis of what they were

immediately before the commencement of 1978 amendment i.e.,

before 20th June 1979.32

31 Subash C.kashyap, parliamentary procedures, 2nd edition p. 63432 httpwww.legalserviceindia.comarticlesparliamentary001.htm


16/36

Freedom of speech

Article 105, clause (1), expressly safeguards freedom of speech in

parliament. It says: there shall be freedom of speech in parliament. Clause

(2) further 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. No action, civil or criminal, will

therefore lie against a member for defamation or the like in respect of things

said in parliament or its committees. The immunity is not limited to mere

spoken words; it extends to votes, as clause (2) specifically declares,

viz. any vote given by him in parliament or any committee thereof. Though

not expressly stated, the freedom of speech would extend to other acts also

done in connection with the proceedings of each House, such as, for notices

of motions, questions, reports of the committee, or the resolutions.

It may be noted that clause (1) of Article 105 is made Subject to theprovisions of this constitution and to the rules and standing orders regulating

the procedures of Parliament. The words regulating the procedures of

Parliament occurring in clause (1) should be read as covering both the

provisions of the Constitution and the rules and standing orders. So read,

freedom of speech in Parliament becomes subject to the provisions of

Constitution relating to the procedures of Parliament, i.e., subject to the

articles relating to procedures in Part V including Articles 107 and 121. Thus

for example, freedom of speech in Parliament would not permit a member to

discuss the conduct of any judge of the Supreme Court or of a High Court.

Likewise, the freedom of speech is subject to the rules of procedures of a

House, such as use of unparliamentary language or unparliamentary conduct.

The freedom of speech guaranteed under clause (1) is different from that

which a citizen enjoys as a fundamental right under Article 19 (1) (a). The

freedom of speech as a fundamental right does not protect an individual

absolutely for what he says. The right is subject to reasonable restrictions

under clause (2) of Article 19. The term freedom of speech as used in this

article means that no Member of Parliament shall be liable to any

proceedings, civil and criminal, in any court for the statements made indebates in the Parliament or any committee thereof. The freedom of speech

conferred under this article cannot therefore be restricted under Article 19

(2) . Clauses (1) and (2) of Article 105 protect what is said within the house

and not what a member of Parliament may say outside. Accordingly, if a

member publishes his speech outside Parliament, he will be held liable if the

speech is defamatory. Besides, the freedom of speech. To which Article 105


17/36

(1) and (2) refer, would be available to a member of Parliament when he

attends the session of Parliament, no occasion arises for the exercise of the

right of freedom of speech, and no complaint can be made that the said right

has been invalidly invaded.33

Article 105 (2) 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 business

of Parliament. Once it was proved that Parliament was sitting and its

business was transacted, anything said during the course of that business was

immune from proceedings in any court. This immunity is not only complete

but it is as it should be. It is one of the essence of parliamentary system of

government that people's representative should be free to express themselves

without fear of legal expenses. What they say is only subject to thediscipline of the rules of Parliament, the good sense of the members and the

control of proceedings by the speaker. The courts have no say in the matter

and should really have none. It was held in the case ofTej Kiran Jain v.

N.Sanjiva Reddy34

In a much publicized matter involving former Prime Minister, several

ministers, Members of Parliament and others a divided Court,

in P.V.Narsimha Rao v. State35 has held that the privilege of immunity

from courts proceedings in Article 105 (2) extends even to bribes taken by

the Members of Parliament for the purpose of voting in a particular mannerin Parliament. The majority (3 judges) did not agree with the minority (2

judges) that the words in respect of in Article 105 (2) mean, arising out

of and therefore would not cover conduct antecedent to speech or voting in

Parliament. The court was however unanimous that the members of

Parliament who gave bribes, or who took bribes but did not participate in the

voting could not claim immunity from court proceeding's under Article 105

(2). The decision has invoked so much controversy and dissatisfaction that a

review petition is pending in the court.

In Anand Nambiyar v. Chief Secretary to the govt of Madras,36 it was

stated that freedom of speech given under Article 105(1) and (2) cannot

claim the status of Fundamental rights at all and the freedom of speech is a

33 Subash C.kashyap, parliamentary procedures, 2nd edition p. 63734 (1970) 2 SCC 272 : AIR 1970 SC 1573.35 (1998) 4 SCC 626 : AIR 1998 SC 2120.36 AIR 1966 SC 657 : (1966) 2 SCR 406


18/36

part of the privilege falling under 105. A plea that a breach has been

committed of any of the privilege cannot be raised in the court of law.37

ABUSE OF PRIVILEGE OF FREEDOM OF SPEECH

Making of defamatory statements in the House against outsiders is abuse ofprivilege of freedom of speech in the House but does not involve a breach of

privilege.38

Right of Publication of proceedings

Clause (2) of Article 105 expressly declares that no person shall be liable in

respect of the publication by order under the authority of a house of

Parliament, of any report, paper, votes or proceedings. Clause (2) provides

absolute immunity from action in courts against a member of Parliament for

anything said or vote given by him in Parliament or in any committeethereof. So far as legal liability is concerned, the freedom of speech in

Parliament is thus free from the restrictions contained in Art. 19(2), which

are imposed upon the freedom of speech of an ordinary citizen, or even from

Art. 121. Hence no legal action, civil, or criminal would lie against a

member for defamation obscenity, contempt of court39 or the like, or the

violation of some other persons fundamental rights on account of his speech

in the House.40

Common law accords the defence of qualified privilege to fair and accurate

unofficial reports of parliamentary proceedings, published in a newspaper orelsewhere. In Wason v. Walter41, Cockburn, C.J. observed that it was of

paramount public and national importance that parliamentary proceedings

should be communicated to public, which has the deepest interest in

knowing what passes in Parliament. But a partial report or a report of

detached part of proceedings published with intent to injure individuals will

be disentitled to protection i.e. faithful and fair reports of parliamentary

proceedings although containing matter disparaging to individuals, are

privileged, though a publication of a particular speech mala fide, with object

of damaging an individual, would not be privileged. Since that decision, it

has been more generally enacted that fair and accurate newspaper reports of

proceedings in public meetings, published without malice and for the public

37 D.D.Basu , Commentary on the Constitution of India, 8th edition, Volume 4, p. 505538 Subash C.kashyap, parliamentary procedures, 2nd edition p. 65439 For criminal contempt committed by a member by an act done outside the House , there is no immunity

in India, as in England.40 D.D.Basu , Commentary on the Constitution of India, 8th edition, Volume 4, p. 5061-506241 (1868) LR 4 : (1868) QB 73.


19/36

benefit are privileged.42 The same is the law in India. The Parliamentary

Proceedings (Protection of Publication) Act, 1956 enacts that no person shall

be liable to any proceedings, civil or criminal, in a court in respect of the

publication of a substantially true report of the proceedings in either House

of the Parliament, unless it is proved that the publication is made with

malice.43

Other privileges

Clause (3) of Article 105, as amended declares that the privileges of each

House of Parliament, its members and committees shall be such as

determined by Parliament from time to time and until Parliament does so,

which it has not yet done, shall be such as on 20th June 1979 i.e., on the date

of commencement of Section 15 of the 44th Amendment. Before the

amendment this clause has provided that until Parliament legislates the

privileges of each House and its members shall be such as those of theHouse of Commons in England at the time of commencement of the

Constitution. As the position till 20th June 1979 was determined on the basis

of original provision, it is still relevant to refer to the law as it has been in

the context of English law. In that perspective it may be emphasized that

there are certain privileges that cannot be claimed by Parliament in India.

For example, the privileges of access to the sovereign, which is exercised by

the House of Commons through its Speaker to have at all times the right of

access to the sovereign through their chosen representative can have no

application in India.

Similarly, a general warrant of arrest issued by Parliament in India cannot

claim to be regarded as a court of record in any sense. Also the privilege of

the two Houses of Parliament, unlike the privileges of the House of

Commons and House of Lords in England are identical. To each House of

Parliament, accordingly, belong the privileges, which are possessed by the

House of Commons in the United Kingdom.

In India freedom from arrest has been limited to civil causes and has not

been applied to arrest on criminal charges or to detention under the

Preventive Detention Act. Also there is no privilege if arrest is made unders.151 Criminal Procedure Code. It has been held in K. Anandan Kumar v.

Chief Secretary, Government of Madras44, that matters of Parliament do

42 D.D.Basu , Commentary on the Constitution of India, 8th edition, Volume 4, p. 5056-505743 httpwww.legalserviceindia.comarticlesparliamentary001.htm44 AIR 1966 SC657,664: (1966) 2 SCR 406


20/36

not enjoy any special status as compared to an ordinary citizen in respect of

valid orders of detention.

In India, the rules of procedure in the House of People give the chair the

power, whenever it thinks fit, of ordering the withdrawal of strangers from

any part of the House and when the House sits in a secret session no stranger

is permitted to be present in the chamber, lobby or galleries. The only

exceptions are the members of the Council of States and the persons

authorized by the Speaker.

In Pandit M.S.M Sharma v. Shri Krishna Sinha , proceedings for the

breach of privilege had been started against an editor of a newspaper for

publishing those parts of the speech of a member delivered in Bihar

legislative assembly which the speaker had ordered to be expunged from the

proceedings of the Assembly. The editor in a writ petition under A. 32contended that the House of Commons had no privilege to prohibit either the

publication of the publicly seen and heard proceedings that took place in the

House or of that part of the proceedings which had been directed to be

expunged. The Supreme Court by a majority of four to one rejected the

contention of the petitioner. Das C.J., who delivered the majority judgment,

observed that the House of Commons had at the commencement of our

Constitution the power or privilege of prohibiting the publication of even a

true and faithful report of the debates or proceedings that took place within

the House. A fortiori the House had at the relevant time the power or

privilege of prohibiting the publication of an inaccurate version of suchdebates or proceedings.

Now Article 361-A inserted by the 44th Amendment with effect from June

20, 1979 provides that no person shall be liable to any proceedings civil or

criminal for reporting the proceedings of either House of Parliament or a

State Legislature unless the reporting is proved to have been made with

malice. This provision does not apply to the reporting of proceedings of

secret sittings of the Houses.

In India there also vest a right of the House to regulate its own constitution.

When a seat of a member elected to the house becomes vacant, the Election

Commission, by a notification in the Gazette of India calls upon the

Parliamentary constituency concerned to elect a person for the purpose of

filling the vacancy. In India, Article 103 expressly provides that if any

question arises as to whether a member of either House of Parliament has


21/36

become subject to any of the disqualifications, the question shall be referred

to the President whose decision shall be final. The President is however

required to act in this behalf according to the opinion of Election

Commission.

As far as right to regulate internal proceedings are concerned Article 122

expressly provides that the validity of any proceedings shall not be called in

question on the ground of any alleged irregularity of procedure, and no

officer or member of Parliament in whom powers are vested by or under the

Constitution for regulating the procedure or the conduct of business or for

maintaining order in Parliament shall be subject to the jurisdiction of any

court in respect of the exercise by him of those powers.

PAPLIAMENTARY DECORUM AND ETIQUETTE.-

Success, effectiveness and prestige of any institution rests on its orderly

functioning and the extent to which it adheres to standards of discipline,

dignity and decorum for discharging its activities. Discipline, dignity and

decorum in this sense are foundational norms of any institution. This is

particularly so of the parliamentary institutions which embody the will of the

people and constitute the fora of democracy to carry out among other

activities, the principal task of legislation and scrutiny of the executive.

Erosion of discipline and decorum will lead to the erosion of parliamentary

institutions. These foundational norms of representative bodies have always

been considered sacrosanct and are therefore preserved, protected anddefended.

In order to maintain dignity of the institution of Parliament and ensure its

proper functioning, the observance of certain rules by the members

regarding their behaviour and etiquette is very important. These rules are

based on the Rules of Procedure and have been given by the Presiding

Officers from time to time.45

The members should be present in their seats a few minutes before the

House is to meet. Thereafter, when the speaker enters the Chamber,members should rise in their places and bow to their Chair in response to the

Speaker himself bowing to either side of the House. Members, who enter the

House at that time, should stand silently in the gangway till the Speaker

takes the Chair. A member should bow to the Chair while entering or45 Subash C.kashyap, parliamentary procedures, 2nd edition , Chapter 34, p. 1070


22/36

leaving the house and also when taking or leaving his seat. A member

should not leave the house when the Speaker is addressing the House. He

should not cross the floor, i.e. pass between the Chair and another member

while the latter is speaking.

A member should not sit or stand with his back to the Chair and is not to

read any book, newspaper or letter except in connection with the business of

the House. He should not interrupt any member while speaking by

disorderly expression or noises. He should maintain silence when not

speaking in the House.

Members are forbidden to raise slogans, wear badges, display flags,

emblems, exhibits, arms and ammunition in the house. Members should not

come to well of the House as a measure of protest and stage dharna or

demonstration there. They should not tear off documents in the House inprotest.

A member should not distribute within the precincts of Parliament House

any literature, questionnaire, pamphlets or any propaganda material which is

not connected with the business of the House.

It is not permissible to smoke inside the House or carry hats and overcoats or

walking sticks. A member suffering from any disability can carry a walking

stick with the permission of the Chair.

Members, who have intention to speak during any debate, should send a

written intimation to the Speaker in advance either through his Party/ Group

Leader or direct by himself. No member should speak unless he has caught

the eye of the Speaker and has been called upon by him to speak. Members

should not approach the Chair personally in the House. A member should

speak only from the seat allotted to him and should address the Speaker and

not the Individual members.

A member while speaking should not-1) Refer to any matter of fact on which a judicial decision is

pending.

2) Use offensive expressions about the conduct or

proceedings of Parliament or any State Legislature;


23/36

3) Make personal reference by way of making an allegation

questioning the bonafide of any other member of theHouse;

4) Reflect on any discrimination of the House except on a

motion for rescinding it;

5) Reflect upon the conduct of persons in high authority

unless the discussion is based on a substantive motion

drawn in proper terms;

6) Use Presidents name for the purpose of influencing the

debate;

7) Utter treasonable, seditious or defamatory words;

8) Use his right of speech for the purpose of obstructing the

Business of the House;

9) Refer to government officials by name;

10) Read a written speech except when making hismaiden speech.

Members have freedom of speech in the House and are immune from

proceedings in any court of law for anything said by them on the floor of the

House. As a rule, no allegations of a defamatory or incriminatory nature can

be made by a member against any person unless the member has given

adequate advance notice to the Speaker and also to the Minister concerned

so that the Minister may be able to make an investigation into the matter for

the purpose of a reply.

The Speaker may, however, at any time prohibit any member from making

any such allegation if he is of opinion that such allegation is derogatory to

the dignity of the House or that no public interest would be served by

making such allegation.

RULE 349.Rules to be observed by members in House- Whilst the

House is sitting , a member-

1) Shall not read any book, newspaper or letter except in connection

with the business of the House;2) Shall not interrupt any member while speaking by disorderly

expression or noises or in any other disorderly manner;

3) Shall bow to the Chair while entering or leaving the House, and

also when taking or leaving his seat;

4) Shall not pass between the chair and any member who is speaking;


24/36

5) Shall not leave the House when the Speaker is addressing the

House;

6) Shall always address the chair;

7) Shall keep to his usual seat while addressing the House;

8) Shall maintain silence when not speaking in the House;

9) Shall not obstruct proceedings, hiss or interrupt and shall avoid

making running commentaries when another member is speaking;

10) Shall not applaud when a stranger enters any of the Galleries, or

the special box;

11) Shall not shout slogans in the House;

12) Shall not sit or stand with his back towards the chair;

13) Shall not approach the chair personally in the House. He may

send chits to the officers at the table, if necessary;

14) Shall not wear or display badges of any kind in the House;

15) Shall not bring or display arms in the House;16) Shall not display flags, emblems or any exhibits in the House;

17) Shall not leave the House immediately after delivering his

speech;

18) Shall not distribute within the precincts of Parliament House

any literature, questionnaire, pamphlets, press notes, leaflets etc.

not connected with the business of the House;

19) Shall not place his hat/cap on the desk in the House, bring

boards in the chamber for keeping files or for writing purposes,

smoke or enter the House with his coat hanging on the Arms;

20) Shall not carry walking stick into the house unless permitted by

the Speaker on health grounds;

21) Shall not tear off documents in the House in protest;

22) Shall not bring or play cassette or tape recorder in the House;

and

23) Shall avoid talking or laughing in the Lobby loud enough to be

heard in the House.

CONTEMPT IN RELATION TO THE SPEAKER

a) Reflection on the conduct of the Speaker and accusation of partiality

in the discharge of his duty either by a member or by an outsider.

These are punishable as breaches of privilege or contempt. The House

itself may criticize the conduct of the Speaker or dissent from one of

his rulings only by way of a substantive motion for the specific

purposes.


25/36

b) On the analogy of matters sub judice, it has been held that any

discussion of a matter which is pending a decision from the chair

constitutes a breach of privilege, if such discussion tends to obstruct

the conduct of proceedings in parliament.46

CONTEMPT IN RELATION TO A MEMBER

Any act on the part of an outside which lowers the dignity of a Member of

Parliament or interferes with the lawful discharge of his duties, as a member,

constitutes contempt and is punishable by the House, e.g.,

a) Reflecting upon the conduct of a member, in his capacity of a

member, e.g. to allege that members were receiving excessive

supplementary allowances of rationed petrol. Wilful misrepresentation

of a members conduct in Parliament has been held to be of the natureof libel upon him. It also includes assaulting, insulting or menacing

any member of the House.

But to constitute breach of privilege, two conditions must be satisfied:

The libel must concern the character or conduct of the member

in capacity.

The conduct or language on which the libel is based must be

actions performed or words uttered in the actual transaction of

the Business of the House.

b) Insulting, assaulting, threatening or otherwise molesting a member on

account of his conduct in Parliament, or while coming to or going

from the House; attempting to do such acts or inciting others to do

such acts against a member;47 molestation of a member at his

residence by objectionable or intimidatory telephone calls, concerning

his acts or conduct in Parliament.

c) Preferring to the House a false and frivolous petition against a

member or threatening a member by a letter that the writer wouldmake such a petition unless the member did a certain favour to the

writer.48

46 D.D.Basu , Commentary on the Constitution of India, 8th edition, Volume 4, p. 503747Gardeners case, (1699-1702) CJ 23148Gradys Case (1819) CJ 159


26/36

d) Offering a bribe to a member.

e) Attempting, by improper means, or intimidation to influence members

in their parliamentary conduct.

f) Arresting a member in breach of his freedom from arrest.49

g) Private solicitation of members on matters of claim to honours or

other judicial proceedings is a breach of privilege.

h) Conduct not amounting to direct attempt to influence a member in

discharge of his duties, but having a tendency to impair his

independence in the future performance of the duty will also be

treated as a breach of privilege.

i) Wilful misrepresentation of proceedings of members is an office of

the same character of libel.

j) Alleged shadowing of a member keeping vigilance over his residenceand interrogating his visitors by CIB. But alleged ill-treatment of

members by police not connected with the House, it was ruled by the

Speaker, that privileges by the member extend only to matters

concerning the House and for matters not connected with the House

remedy was at official level.

BREACH OF PRIVILEGE OR CONTEMPT

Though in common parlance the two expressions are used as synonymous,

there is infact, distinction between the two. Each House of Legislature hascertain acknowledged privileges collectively, while its members have

certain privileges individually. Any violation of any such privilege

constitutes a breach of privilege as is punishable as a contempt of the

House.

When any of the rights and immunities, both of members, individually and

of the assembly in its collective capacity, which are known by general name

of privileges are disregarded or attached by any individual or authority, the

offence is called Breach of Privilege and is punishable under the Law of

Parliament. Each House also claims the right to punish action, which, while

not breaches of any specific privileges, and offences against its authority or

dignity, such as disobedience to its legitimate commands or libels upon

itself, its officers or its members. Such action though often called breach of

Privileges are more properly distinguished as contempt. In parliamentary

49Butlers Case, (1809) CJ 210, 213.


27/36

speech, the term breach of privilege has often been used as synonyms with

contempt of House.50

THE POWER TO PUNISH FOR CONTEMPT

By inserting Clause (3) in Articles 105 and 194, the makers have ensuredthat the power to punish shall belong to ourLegislatures to the same extent

as to the British House of Commons, unless and until the appropriate

legislature in India legislated to the contrary. This was held in Keshav

Singh v. Speaker51. The power to punish for its contempt might itself be

listed as a specific right or privilege. The House can indicate its own

privileges by taking disciplinary action against members and others whom it

adjudicates to have broken them52

The house can use its power to punish only in cases:

a) Where the dignity of the House as a whole is affected; or where the

dignity of a member as a member of House is impaired.

b) Where the actual discharge of the duties of a Member in the

transaction of Business in the House is interfered with.

But in determining whether in a particular case there has been a breach of

privilege in any of the above sense, the House always guides itself by the

following considerations:

1) The Law of Parliamentary Privilege should not be administered

in a way which would fetter or discourage the free expression

of opinion or criticism, however prejudiced or exaggerated such

opinions or criticism might be.

2) The process of Parliamentary investigation should not be used

in a way which would be inconsistent with the dignity of the

House and give undue importance to irresponsible statements.

3) Care should be taken to distinguish legitimate political activity

from illegitimate interference with the business or dignity of the

House and the House should take penal act on only when theright claimed as a privilege is absolutely necessary for the due

execution of the Powers of Parliament.

50 D.D.Basu , Commentary on the Constitution of India, 8th edition, Volume 4, p. 512351 AIR 1965 All 449 (353-54)52 D.D.Basu , Commentary on the Constitution of India, 8th edition, Volume 4, p. 5127


28/36

4) In most cases, an unqualified apology is considered sufficient to

excuse the contemner, particularly where the breach is petty in

scale. The House may, however, express its displeasure at the

mis-conduct, while accepting the apology. 53

APOLOGY OFFERED BY MEMBER/OFFICIAL WITNESS OF A

COMMITTEE/PUBLIC UNDERTAKING

In case of protest and walk-out by a member against Speakers ruling, matter

was dropped as the speaker was assured that there was no intention to cast

any aspersion on the speaker or the House.

On 28 Apr. 1958 a member, S.N. Dwivedy walked out of the House as a

protest against Speakers ruling. The matter was examined by the Speaker

but in view of assurance that he and some other members who walked outwith him did not intend to cast any aspersion on the Speaker or the House,

the matter was dropped.

Instance when a committee stated in their Report that they had been misled

by an official witness. Concerned official subsequently apologized to the

committee. The Committee accepted the apology of the official and decided

to close the matter and reported to the House accordingly.54

PUNISHMENT FOR A CONTEMPT OF PARLIAMENT-

In view of Articles 105(3) and 194(3) of our constitution, all the aforesaid

modes of punishment are available to each House of our Parliament and

State Legislatures.-

a) Admonition.-According to Cambridge Dictionary it basically means

a piece of advice that is also a warning to someone about their

behaviour. A member of the Uttar Pradesh Assembly was

admonished for persisting in making baseless insinuation against the

Assembly Secretariat of having temped with records and the like.

A member of Punjab Vidhan Sabha was warned for challenging the

decision of the Speaker outside the House

53 D.D.Basu , Commentary on the Constitution of India, 8th edition, Volume 4, p. 5127-2854 Subash C.kashyap, parliamentary procedures, 2nd edition p. 701


29/36

b)Reprimand.- It means to express someone your strong official

disapproval of them. Reprimand has been resorted to in Parliament, in

the case of the Editor ofBlitz weekly of Bombay, who had published a

derogatory criticism of the speech of a Member (Acharya Kripalani) in

the House of People. The committee of Privileges of the House reported

it to be gross breach of privilege and recommended that the Editor should

be called to the Bar of the House and reprimanded, while the Press

Gallery Card (for attending sittings of Parliament) of the New Delhi

correspondent of the Journal should be cancelled until he gives a full and

adequate apology. The House accepted this recommendation.

After an unsuccessful attempt to move the Supreme Court under Art. 32,

the Editor submitted to the notice of the House to attend and received the

reprimand on the date fixed therefore. The procedure adopted by the

House on this occasion may profitably be reproduced from the PressReport.55

C) Imprisonment.- There have been quite a number of instances of

imprisonment in India, since the inauguration of the

Constitution, for contempt of the Legislature.

When the contemner is a member of House itself, two other

punishments are available, namely, (a) suspension for a specified

period and (b) expulsion

a) Suspension

In England, suspension is an order either for a definite time or for an

indefinite time (up to the end of the session) for disregard of the authority of

the chair or willfully obstructing the business of the House.

Provision for withdrawal from the House, and suspension of a member is

made in Rules 373-374 of the Rules of our House of the People as follows:

373. The Speaker may direct any member whose conduct is in his opinion

grossly disorderly to withdraw immediately from the House, and anymember so ordered to withdraw shall do so forthwith and shall absent

himself during the remainder of the days meeting.

374. (1) The Speaker may, if he deems it necessary, name a member who

disregards the authority of the Chair or abuses the Rules of the House by55 D.D.Basu , Commentary on the Constitution of India, 8th edition, Volume 4, p. 5178


30/36

persistently and willfully obstructing the business thereof. (2) If a member is

so named by the Speaker, he shall forthwith put the question that the

member (naming him) be suspended from the service of the House during

the remainder of the session:Providedthat the House may, at any time, on a

motion being made, resolve that such suspension be terminated. (3) A

member suspended under this rule shall forthwith quit the precincts of the

House.

Article 374A talks about Automatic suspension of Members.- (1)

Notwithstanding anything contained in Rules 373 and 374, in the event of

grave disorder occasioned by a member coming into the well of the House or

abusing the Rules of the House persistently and willfully obstructing its

business by shouting slogans or otherwise, such member shall, on being

named by the Speaker stand automatically suspended from the services of

the House for five consecutive sittings or remainder of the session whichever is less.

Providedthat the House, may, at any time on a motion being made resolve

that the suspension be terminated.

(2) On the Speaker announcing the suspension under the rule, the member

shall forthwith withdraw from the precincts of the House.

When a member is suspended from the service of the House, the following

consequences arise from his suspension and remain in force during theperiod of his suspension.

(1) He cannot enter the Chamber and Inner Lobbies.

(2) He stands suspended from the sittings of Parliamentary Committee of

which he is a member; since working of the Committee is also serving the

House.

(3) Notice of sittings of Committee held during the period of his suspension

is not sent to him.

(4) No item is put down in the list of Business in his name.

(5) No notice Labeled by him is acceptable during the period of his

suspension.


31/36

(6) He cannot vote at election to Committees held during the period of his

suspension.

(7) He is not entitled to daily allowance for the period of suspension, if

suspended from the service of the House, for the remainder of the Session,

as his stay at the place of duty cannot be regarded as residence on duty

under sec 2 (d) of Salaries, Allowances and pension of Members of

Parliament Act, 1954, as amended from time to time. He is, however,

entitled to daily allowance if suspended for a specific period during the

session.

In Karnataka, in June 1981, Opposition members [Cong. (U), Janta and CPI]

were suspended by motion passed by the Legislative Assembly for the

duration of the current Budget Session, for obstructing proceedings of the

House by sitting in dharna in the well of the House, urging removal of theirgrievances by the Government.

b) Expulsion

In England, expulsion is resorted to when a member is guilty of such an

offence as renders him unfit to sit in Parliament even though his seat is not

vacated by reason of such act or offence, e.g., engaging in open rebellion, or

having been guilty of:

DD BASU

COMMITTEE ON THE CONDUCT OF A MEMBER(MUDGAL CASE):

(a) The Committee was hold sittings in private.

(b) Strangers were to be excluded whenever the Committee was

deliberating.


32/36

(c) The Committee was empowered to require attendance of persons or

production of papers or records.

(d) The Committee could take such assistance from Attorney-General as

was necessary in the conduct of its proceedings.

(e) The Attorney-General might open the proceedings.

(f) Witnesses were to be called either by Mudgal or by counsel or by the

Committee.

(g) In special circumstances, Counsel could be permitted to put questions

to a witness with the permission of the Chairman.

(h) The Committee was to be considered as a Court of Honour and not a

Court of Law where excessive cross- examination eventually turned

the proceedings into a battle of wits.

(i) The Committee was directed to simplify the procedure and to lay

down clear rules ensuring ascertainment of truth, fairplay and justiceto all concerned.56

ATTENDANCE OF MEMBERS OF PARLIAMENT.-

A member is expected to attend the sittings of the House regularly, other

than unavoidable circumstances and it is the right of the House to receive

from a member information regarding the causes of his absence. The

Constitution provides that if for a period of sixty days a member of eitherHouse of Parliament is without permission of the House absent from all

meetings thereof his seat may be declared vacant by the House. This is

because the duty of the members to the House is Paramount.

A member desiring permission of the House to remain absent from the

sittings of the House is required to make an application in writing duly

signed by him to the Speaker. The application would specify the period as

well as the grounds for which leave of absence is required. The period of

leave demanded must not exceed sixty days at a time. It is not necessary to

apply for leave of absence where the period of absence is less than 15 days.

The reasons given in the application should be proper, sufficient and

convincing. Ministers need not apply for permission of the House for their

absence whenever they are required to perform their duties outside the

56 Subash C.kashyap, parliamentary procedures, 2nd edition p. 735-736


33/36

headquarters or unable to attend the House in circumstances beyond their

control. But they normally inform the Speaker as a matter of courtesy.

All applications from the members for leave of absence stand referred to the

Committee on Absence of Members from the Sittings of the House. The

Committee considers the applications and presents its report to the House.

The Speaker then takes the pleasure of the House in respect of the

recommendations of the Committee and the members concerned are

informed accordingly.57

ATTENDANCE REGISTER.-

In order to record the attendance of members, an attendance register is

maintained for members to sign their names in token of having attended the

sitting of the House on a particular day, before commencement of eachsession. For convenience of members attendance register split into 4 parts

each part kept on separate rostrum in the Lobby. Lobby Asstt. Also marks

the attendance of those members who are seen by him in the House, though

they have not marked the attendance. Apart from this register another

consolidated register, showing at one place attendance of members of all

days during various sessions, is maintained by LS Sectt.

Attendance register kept in the Lobby cannot be moved from there and taken

to a member for his signature outside Lobby.

LEAVE OF ABSENCE.-

A member desiring leave of absence has to make an application seeking

permission of the House for remaining absent and no exception can be made

in respect of a member under detention. A member who has not taken oath

or made affirmation is entitled to apply for leave of absence. As soon as

member completes 40 days of continuous absence without permission of the

House, he is informed of it so that he may apply for leave of absence in time

to avoid complications at a large stage.

When the House is in session a member who goes out for work of the

committee or commission has to apply for leave of absence. When a minister

who has to perform his duty outside the headquarters is unable to attend

57 Subash C.kashyap, parliamentary procedures, 2nd edition p. 764


34/36

meetings of the House in circumstances beyond his control, the permission

of the House to his absence under Art. 101(4) may not be obtained

FORM OF APPLICATION.-

Application for leave of absence are addressed by a member to the Speaker,

or LS Sectt. Or chairman, CAM. If any application is addressed to a person

other than the above, the member concerned is requested to send a fresh

application in accordance with the Rules and Procedure.

A leter addressed to Secy. Cong. Party, was treated as valid application for

leave of absence.

PERIOD OF LEAVE.-

Application must specify the period of leave and reason thereof. If a member

doesnt comply with this the member concerned is asked to do so by a letter

before his application is considered by the Committee.

Leave of absence for the first instance should be applied for a period not

exceeding 60 days. If the leave is for a period less than 60 days, then it is not

necessary to take permission but it will be safer to do so.

REASON FOR ABSENCE.-

Reasons given in application should be proper and specific. The reason

domestic trouble and political-communal situation in his area was held

vague and not sufficient for applying for leave.

The Committee noted that Art. 101(4) provided defense in case a member is

absent for 59 days even if he applied for leave and his application was

rejected. Committee provided grounds on which leave might be granted to

the members:

(a) Illness of self, including medical check up;(b) Illness, accident or mishap in the family;

(c) Death in the family;

(d) Marriage of self or marriage in the family;

(e) Detention in jail;

(f) Pilgrimage or participation in religious celebrations;

(g) Visits abroad for-


35/36

o Participation in, conference and Delegations,

o Study tour,

o Lecturing,

o Participation in Games and Sports;

(h) Relief work in natural calamities like floods, drought, fire orearthquake in the constituency or any part of the country;

(i) Work connected with delimitation of some Commission or inquiry;

(j) Work connected with some Commission or inquiry;

(k) Celebrations like the following in the constituency in which the

member has been assigned a prominent role-

o Martyrs Day,

o Centenary Celebrations,

o Inauguration of a new project, Assembly or state etc.;

(l) Elections or Bye-Elections in the constituency;

(m) Participation in party session or party meetings;

(n) Agitation or disturbances in the constituency;

(o) Break down of Communications.

The Committee further recommended that leave need NOT be granted on

grounds like-

(a) work in constituency other than those mentioned above;

(b) Professional or business engagements;

(c) Private affairs;

(d) Domestic trouble other than those mentioned above.

LEAVE APPLICATION TO BE SIGNED BY MEMBER.-

Application for leave are usually sent by members under their own

signatures. In certain cases, however, telegraphic requests are also

entertained. In Case a member is incapable of signing the application due to

serious illness and affixes his thumb impression his application is treated asvalid. If a member, for reasons which the speaker thinks adequate is unable

to apply for leave another member can apply on his behalf. In such cases

where the member is incapable of signing himself, he is asked to get

signatures of person who has thus signed, attested by a magistrate, Gazetted

Officer, M.P., or any other person known to LS sect. And an application for

leave by one member on behalf of another when the member was capable to


36/36

do himself may not be treated as valid. Letter from a private secy. To a

member requesting for action in connection with the absence of the member

is not treated as a valid application for leave.

LEAVE OF ABSENCE TO SPEAKER.-

Instances where Speaker was granted leave of Absence:

a) Speaker (G.V Mavalankar ) was granted leave of absence on 11

September 1951 for 4S of Parl. And on 13 Feb. 1953 for whole of 3S of

ILS and some subsequent period after a message re. his inability to attend

sittings of the House was read out in the House.

b) On 15 Feb 1956, a message from the Speaker ( G.V. Mavalankar ) re.

his ability to attend the House for the whole 12S, 1956 and somesubsequent period, was read out in the House.

RELEASE OF MEMBER ON PAROLE

A member released on parole cannot attend sittings of the House.

APPLICATIONS FOR LESS THAN 15 DAYS

Applications for less than 15 days are not brought before the committee for

consideration. Applications for less than 15 days from members who wereunder detention for indefinite period were brought before committee but the

committee reiterated their earlier decision that applications for a period of

less than 15 days need not be brought before committee for its

consideration.58

constitution project work - copy

Documents