FOUNDERS, JUDGES AND MODESTY

FOUNDERS, JUDGES AND MODESTY

by

Venudhar Routiya, LL.M.

(Constitutional and Administrative Law) & UGC-NET†

In January this year in Tuscon Arizona, an obviously disturbed young man shot a number of people, killing among others a Federal Court Judge and a nine-year old girl.  A Member of Congress was seriously wounded.  There was some speculation in the media that this incident might reawaken public debate in the U.S. about the ready access to firearms allowed in that country.   That speculation has proved to be groundless; there has been no public debate about that issue.  No US politician seems to want to take the issue on.  And to be fair to those politicians, any debate would be a waste of their own and the public’s time.

In 2008, in District of Columbia v Heller[1] the Supreme Court of the United States had to decide whether a federal law passed in 1975 forbidding possession of handguns, loaded rifles and loaded shotguns within the District of Columbia, was in violation of the Second Amendment to the US Constitution.  The court ruled by a majority of 5-4 that it was.  The opinion for the majority was written by Scalia J. 

In 2010 in McDonald v Chicago,[2] the Supreme Court, in an opinion written for the majority by Alito J, extended Heller to strike down most gun-control laws in the States as well. 

The state of affairs brought about by these very recent decisions is remarkable:  it is not vouchsafed to the collective wisdom of American citizens of the present generation, alone of all the peoples of the earth, to determine whether there should be legal limits upon the general availability of firearms in their country.  I thought it might be opportune this evening to reflect upon the circumstances whereby this generation of the American people came to be so diminished, and upon what these circumstances might say to those of us who admire, and may even be disposed to emulate aspects of, American constitutional arrangements and jurisprudence.

As to the circumstances which led to this state of affairs, the decisions in question seem to be a triumph for the originalist approach to constitutional interpretation.  Justice Scalia is the Court’s leading originalist.  Originalism is, of course, the theory of constitutional interpretation which looks to interpret the text of the Constitution by reference to evidence of what the Framers really meant.

There are some general difficulties with originalism as an approach to constitutional interpretation.  It may seem a little optimistic to look to extraneous expressions of the attitudes of men, who lived at the very beginning of the Industrial Revolution, to derive a definitive understanding of how national life should be organized two hundred years after their death.  There is reason to think that they did not have such a grand ambition but were much more modest in their expectations. 

In M’Culloch v State of Maryland[3], Chief Justice Marshall described the Constitution as “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”  Some might think that the not infrequent massacre of ordinary citizens and the nobler politicians by troubled souls would qualify as a “crisis of human affairs”.[4]  

At the other end of the political spectrum at the time of the founding, Chief Justice Marshall’s distant cousin, and sworn political enemy, Thomas Jefferson, when he was the US Ambassador to France, wrote to his friend James Madison less than two months after the fall of the Bastille:

“No society can make a perpetual Constitution or even a perpetual law.  The earth belongs always to a living generation.”[5]

Further, it seems unduly optimistic to assume a level of unanimity among the Founders about matters on which some did not express a view outside the Constitutional text on a given subject.  Indeed they may even have had views contrary to those expressed in the text which they deliberately suppressed for the sake of reaching a workable consensus. 

 Benjamin Franklin said as much in his remarks to the Federal Convention before the adoption of the Constitution in 1787.  Franklin said:

“For having lived long, I have experienced many instances of being obliged by better Information, or fuller Consideration, to change Opinions even on important Subjects, which I once thought right, but found to be otherwise.” 

Franklin said that he hoped:

“that every member of the Convention who may still have Objections to it, would with me, on this occasion doubt a little of his own Infallibility, and to make manifest our Unanimity, put his name to this Instrument… Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.”[6]

Finally on this point, the principal draftsman of the US Constitution, the redoubtable Gouverneur Morris, rejected the idea of trying to resolve uncertainties by looking at the contemporaneous views of the Founding Fathers outside the constitutional text.  In 1803 he wrote the following in a letter replying to a query about the intent of the Framers of the US Constitution on a particular point:

            “It is not possible for me to recollect with precision all that passed in the Convention while we were framing the Constitution; and, if I could, it is most probable that meaning may have been conceived from incidental expressions different from that which they were intended to convey, and very different from the fixed opinions of the speaker.”[7]

Anyone who has experience of the process of producing a document in committee will appreciate the force of what Morris wrote.

The originalist approach has previously led to results which seem, to us at least, distinctly odd.  Thus in 1998 in Grupo Mexicano de Desarrollo SA v Alliance Bond Fund, Inc, [8] Scalia J, delivering the opinion of the Court, over the dissent on this point of Stevens, Souter, Ginsburg and Bryer JJ, held that US Federal Courts have no power to grant Mareva injunctions or Anton Pillar orders because the content of the equitable jurisdiction of the Federal Courts was fixed in 1789 when US law ceased to be tied to that of England at which time the Court of Chancery had not yet exercised any such power.  

To conclude that wholesome developments of equitable jurisdiction, such as the Mareva injunction, were thereby forever denied to US Federal Courts seems a little extreme.  On this approach, the Chancellor’s foot was not merely measured, it was amputated and then kept in formaldehyde.

These general difficulties aside, an examination of the two recent Supreme Court cases on the Second Amendment provides particular reason to doubt whether an originalist approach to Constitutional interpretation can, in truth, sustain the interpretation placed upon the Constitutional text by the majority.

The Constitutional Text

Let us look at the Constitutional text.  The Second Amendment says:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The minority of the Supreme Court judges in Heller, Justices Stevens, Souter, Bryer and Ginsburg were of the opinion that the right conferred by the Second Amendment was conferred, not upon individuals, but upon the People, to ensure the maintenance of a well-regulated militia.

One might respectfully observe that their Honours’ opinion seems to reflect the plain meaning of the text.  The right conferred by the Second Amendment is expressly said to exist for the purpose of facilitating the existence of a militia.  That militia is itself to be “well-regulated”; not, be it noted, “well-armed” or “well equipped”, but “well-regulated”.  I take it as obvious that regulation of the militia would extend to regulating the use of firearms by the members of the militia as such: their officers could, for example, expect to be obeyed if they ordered them to lay down their arms.  It seems odd that on the authority of these recent decisions, the use of firearms by members of the militia may be regulated, but not the use of firearms by individuals outside the militia.

More importantly, the right to keep and bear arms is expressed to inhere in the People. It is “the People” who brought forth and announced the establishment of their new system of government in the Constitution.  The US Constitution expressly proceeds on the postulate, stated in Article 1, Section 2, and the First, Second, Fourth, Ninth and Tenth Amendments, that “the People” exists as a community organized and functioning as such in their town halls, churches and village greens, in the several states, anterior to the arrangements put in place by that People for the government of the United States.

To put the point directly, the Constitutional text does not suggest that a law which prohibits the possession of firearms, otherwise than in accordance with a state law regulating its militia, abridges the People’s right to keep and bear arms.

To support the conclusion that the language of the Second Amendment is, as a matter of its original intent, apt to guarantee the keeping of weapons by individuals as an end in itself, Scalia J, who wrote the majority opinion in Heller, referred to the writings of Blackstone.  It is not surprising that those who accept the originalist premise should look to Blackstone to discover the original intent.  In 1999, in Alden v Maine,[9] the US Supreme Court described Blackstone’s work as “the pre-eminent authority on English law for the founding generation”.

Scalia J, writing for the majority in Heller, said of Blackstone:

“By the time of the founding, the right to have arms had become fundamental for English subjects.  See Malcolm 122-134.  Blackstone, whose works, we have said, ‘constituted the pre-eminent authority on English law for the founding generation,’ cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.  See 1 Blackstone 136, 139-140 (1765).  His description of it cannot possibly be thought to tie it to militia or military service.  It was, he said, ‘the natural right of resistance and self-preservation,’ id., at 139, and ‘the right of having and using arms for self-preservation and defence,’ id., at 140; see also 3 id., at 2-4 (1768).  Other contemporary authorities concurred.  See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17-18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886-887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59-60 (1785).  Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.”[10]

Blackstone

The irony of invoking the support of Blackstone for this “natural right” can be seen first by noting that in 4 Commentaries 55, Blackstone recognized that this supposedly fundamental natural right was not so fundamental or natural that it could not sensibly and lawfully be abridged in the case of English Catholics convicted of the heinous crime of not attending service in the Church of England.  Thus Blackstone saw the right to bear arms as limited to his people, principally, the loyal Protestant yoemanry.

We can be confident that the framers of the US Constitution, slave-owners and non slave-owners alike, had the same view.  They certainly did not intend that the right to keep and bear arms be guaranteed to each of the millions of black people who were enslaved in the US at the time.

I respectfully suggest that Blackstone does not afford satisfactory support for the view that when the Second Amendment speaks of “the People” it means “each individual”. 

And, it would also not be entirely flippant to say that, if the proponents of originalism were consistent, the only arms which the Second Amendment could be taken to permit are muskets, knives, swords, pikes and muzzle-loading cannon, not automatic rifles or pump action shotguns. 

That the words of the Second Amendment guarantee of the possession of firearms by unregulated individuals was not, until these very recent decisions, a view supported by the Court’s decisions.  It was not an article of legal faith even on the part of conservative lawyers. 

In this regard, in 1989, Robert Bork, a leading proponent of originalism, acknowledged that the Second Amendment serves “to guarantee the right of states to form militias, not for individuals to bear arms.”[11]

The argument that the Second Amendment guarantees the right of individuals to bear arms seems to have first come to prominence, not in the Court’s own precedents, but as a result of agitation by the National Rifle Association in response to gun control laws passed in reaction to the assassinations of John Kennedy, Martin Luther King and Robert Kennedy.  This campaign led the former Chief Justice Warren Burger to say in 1991 that the NRA’s campaign on the Second Amendment was “one of the greatest pieces of fraud, I repeat the word ‘fraud’, on the American public by special interest groups that I have ever seen in my lifetime”.[12]

Visions of Nationhood

How then can we understand the majority judges reading of the text?  How did they come to interpret the text as they did?

The Chief Justice of the United States, on his visit to Australia in July last year, gave a speech in which he made the point that the Bill of Rights was very much the product of historical circumstances of the founding of the United States.  The Chief Justice was, of course, a member of the majority in each of the decisions under discussion.  His speech may afford some insight into the cultural lens through which the majority viewed the constitutional language.   He said:

“America’s first colonists were strong-willed individualists who chose to start a new life in an unknown land.  Most were English subjects who came from a heritage of English liberties reaching back to Magna Carta.  They brought a conception of individual rights with them.  For example, the first charter of the colony of Virginia, written in 1606, provided that colonists and their descendants ‘shall have and enjoy all liberties, franchises and immunities as if they had been abiding and born in this our realm of England’.  The American writer Ralph Waldo Emerson stated early in our history that Americans began with freedom.  As he put it ‘America was opened after the feudal mischief was spent and so people made a good start, we began well’.”

Roberts CJ went on to say:

“But we did not begin content.  The American colonists did not arrive on new soil satisfied with the status quo.  Some of America’s first colonists, like the Pilgrims, the Puritans and the Quakers, came to America seeking broader religious liberty.  Others sought the opportunity to own land, to escape a rigid class structure, or to seek out in an undefined way a life better than the one they had left.  They came, in the candid words that would appear in the Declaration of Independence, ‘to pursue happiness’.  Their notions of liberty thus arose not only from their English background, but also from widely shared personal aspiration.  Those notions took root and flourished without formal efforts at cultivation in the untamed new world environment.

…

The American colonists began to consider the theoretical basis for their rights, and they naturally gravitated toward John Locke’s theory of social compact.  That theory rested on a political perspective that was very easy for the New World colonists to visualise.  People existed before governments and people in the state of nature entered the world with god-given natural rights that they may curtail or surrender to government only by free consent.”

We may note that the Chief Justice refers to ‘people’, not to ‘The People’.  He speaks of people being born with natural rights, but not, it would seem, with companions.

Chief Justice Roberts went on:

“The King of England did not share that perspective.  But for the generations that were born in America, the monarch must have seemed distant and his divine rights and abstraction far removed from their experience.  The land that the colonists had entered was far closer to Locke’s state of nature than the one they had fled.  By the mid 18^th Century a succession of generations had tamed wild lands and constructed farms, villages and town halls with their own hands.  Those Americans had no difficulty embracing the notion that people also created government and that government existed only by virtue of a compact expressing the consent of the governed.”

The Chief Justice’s speech affords a compelling statement of the individualist vision of the gestation of the US Constitution.  But like all visionary statements, the resonance of the statement depends on the time, circumstances and experience of the audience.  The notion of “the People” does not figure prominently in this vision, that is the People as a civilized community which organizes militias and wages war, not with sticks and stones, but with sophisticated weapons which can only be produced by civilization and the organized division of labour which civilisation supports. 

For many Americans, it may be that the vision of a man and his musket carving his own happiness out of the state of nature where opposition, natural or human, is something to be overcome is a compelling vision of the individualist foundations of the United States: it is, after all, a vision that inspired two generations of Wild West movies.  But many modern Americans may be disappointed to known that they are governed under the Constitution according to “The Man Who Shot Liberty Valance.”

Many city dwellers of the 21^st Century, imbued with the bourgeois values of non-violence, civic mindedness and peaceful co-operation, may not be persuaded or inspired by that vision.  They may see this vision as part of the national myth, of some value to sure, but not an indispensible part of the Founders’ legacy by which their existential choices should be curtailed. 

Something of this perspective was recently expressed by the satirist Jon Stewart who commented that North America was “settled remarkably quickly thanks to the extermination of one race, the enslavement of a second, and the can-do attitude of a third”.

Many modern Americans may query whether this reading of the Constitutional text by the light of the claims of the 17^th Century for the individual in the state of nature reflects the state of nature conceived by Locke, who shared, or perhaps more correctly, inspired, Blackstone’s postulate of a “polite and commercial people” which, in America, joined together to make their own political arrangements, or that much bleaker state of nature conceived by Thomas Hobbes: the war of all against all where life is “solitary, poor, nasty, brutish and short”.

I am not suggesting that the sceptics would be right, or even that those who hold these views are in the majority of American citizens.  It is simply that it is a remarkable state of affairs that their views don’t matter even if they do happen to be in the majority; and it is a state of affairs that the Constitutional text does not demand.

Conclusion

Arnold Toynbee discussed the differences in the scope for interpretation between a sacred text and a sacred tradition guarded by a priesthood.  He said:

            “An authoritarian scripture suffers…from a weakness from which an authoritarian (priesthood) is exempt.  The possibility of re-interpreting a written text to meet a changeless human nature’s every-changing situation is more narrowly circumscribed than the possibility of a re-interpreting the unwritten lore of a hierarchy or a body of doctors or fathers claiming to be inspired by a Holy Spirit, which, like the wind, ‘bloweth where it listeth”.[13]

The Supreme Court’s decisions illustrate that, even with a sacred text, Toynbee was correct only insofar as the ethos of the guardian priesthood is effective to constrain it to recognize that it is less powerful than the sacred text. Otherwise, subjective and contentious reinterpretations may develop a life of their own drifting free of the sacred text.[14]  And because those reinterpretations have the force of the Constitution, the possibility of a different outcome is foreclosed to the People.

If we accept that, as Jefferson thought, a Constitution exists to serve each living generation, these cases afford a salutary reminder to those who regard the United States with deep and abiding affection and their scholars and judges with admiration, of the need to accord pre-eminence to the constitutional text, and of the need for respect for the precedents which have settled its interpretation.

In the absence of relevant precedents it is important to have a modest appreciation of the value of one’s own historical insights about the intent of the Founders.  That modesty must include a willingness to resist the exhilarating belief that one is the first to reveal a great truth.  And it should be not less than that exhibited by the Founders themselves.

---

*               Address to the 2011 Constitutional Law Conference, Sydney, 18 February 2011.

†               Chief Justice of the Federal Court of Australia.

[1]               128 S. Ct. 2783 (‘Heller’).

[2]               130 S. Ct. 3020.

[3]               17 US (4 Wheat) 316 (1819).

[4]               Ibid at 415.

[5]               Thomas Jefferson, Letter to James Madison from Paris, September 6, 1789.

[6]               Lepore, “The Commandments: The Constitution and its Worshippers”. The New Yorker, January 17, 2011, 70 at 75.

[7]               James J Kirschke, “Gouverneur Morris: Author, Statesman, and Man of the World”, (2005), at 256 – 257.

[8]               527 US 308 (1998) at 332-333.

[9]               527 US 706 at 715.

[10]             128 S. Ct. 2783 at 2798-2799.

[11]             Lepore, “The Commandments: The Constitution and its Worshippers”, The New Yorker, January 17, 2011, 70 at 75.

[12]             Lepore, “The Commandments: The Constitution and its Worshippers”, The New Yorker, January 17, 2011, 70 at 75.

[13]             Arnold Toynbee, “An Historian’s Approach to Religion”, p 131.

[14]             Sir Own Dixon “The Common Law as Ultimate Constitutional Foundation” (1957) 31 ALJ 240.

Top Ten Political Corruption in India

Top Ten Corruption in India

This is the season of scams and the biggest ever corruption cases in India have been unearthed more recently. So, we decided to dig deep to see which scams were the biggest and most damaging to the country and its citizens alike.

In our daily life, most of us must have been a witness to or a victim of the corruption thriving in some or the other part of the country. It could be in the form of a taxi-driver manipulating the meter to jack-up the reading or a government officer taking bribery to promptly transfer your file to the next department or even yourself offering bribe to a traffic police on breaking a signal.

An average Indian citizen is hard working and diligent, but it is the people in charge of the system (The Babu’s) or with whom the power lays, that act as a cancer spreading the venom, slowing down progress and what all not. But, somewhere down the line, we ourselves are responsible for allowing and being taken for a ride by these people, aren’t we?

However, it is during a multi-thousand crore scam, that a tax-payer actually realizes the heartburn of being cheated from his valued contribution of funds towards the development and well-being of the nation. But, that’s what a scam, be it big or small, means – the act of swindling by some fraudulent scheme or action.

The Top Scams in India

1) 2G Spectrum Scam

We have had a number of scams in India; but none bigger than the scam involving the process of allocating unified access service licenses. At the heart of this Rs.1.76-lakh crore worth of scam is the former Telecom minister A Raja – who according to the CAG, has evaded norms at every level as he carried out the dubious 2G license awards in 2008 at a throw-away price which were pegged at 2001 prices.

2) Commonwealth Games Scam

Another feather in the cap of Indian scandal list is Commonwealth Games loot. Yes, literally a loot! Even before the long awaited sporting bonanza could see the day of light, the grand event was soaked in the allegations of corruption. It is estimated that out of Rs. 70000 crore spent on the Games, only half the said amount was spent on Indian sportspersons.

The Central Vigilance Commission, involved in probing the alleged corruption in various Commonwealth Games-related projects, has found discrepancies in tenders – like payment to non-existent parties, will-ful delays in execution of contracts, over-inflated price and bungling in purchase of equipment through tendering – and misappropriation of funds.

3) Telgi Scam

As they say, every scam must have something unique in it to make money out of it in an unscrupulous manner- and Telgi scam had all the suspense and drama that the scandal needed to thrive and be busted.

Abdul Karim Telgi had mastered the art of forgery in printing duplicate stamp papers and sold them to banks and other institutions. The tentacles of the fake stamp and stamp paper case had penetrated 12 states and was estimated at a whooping Rs. 20000 crore plus. The Telgi clearly had a lot of support from government departments that were responsible for the production and sale of high security stamps.

4) Satyam Scam

The scam at Satyam Computer Services is something that will shatter the peace and tranquillity of Indian investors and shareholder community beyond repair. Satyam is the biggest fraud in the corporate history to the tune of Rs. 14000 crore.

The company’s disgraced former chairman Ramalinga Raju kept everyone in the dark for a decade by fudging the books of accounts for several years and inflating revenues and profit figures of Satyam. Finally, the company was taken over by the Tech Mahindra which has done wonderfully well to revive the brand Satyam.

5) Bofors Scam

The Bofors scandal is known as the hallmark of Indian corruption. The Bofors scam was a major corruption scandal in India in the 1980s; when the then PM Rajiv Gandhi and several others including a powerful NRI family named the Hindujas, were accused of receiving kickbacks from Bofors AB for winning a bid to supply India’s 155 mm field howitzer.

The Swedish State Radio had broadcast a startling report about an undercover operation carried out by Bofors, Sweden’s biggest arms manufacturer, whereby $16 million were allegedly paid to members of PM Rajiv Gandhi’s Congress.

Most of all, the Bofors scam had a strong emotional appeal because it was a scam related to the defense services and India’s security interests.

6) The Fodder Scam

If you haven’t heard of Bihar’s fodder scam of 1996, you might still be able to recognize it by the name of “Chara Ghotala ,” as it is popularly known in the vernacular language.

In this corruption scandal worth Rs.900 crore, an unholy nexus was traced involved in fabrication of “vast herds of fictitious livestock” for which fodder, medicine and animal husbandry equipment was supposedly procured.

7) The Hawala Scandal

The Hawala case to the tune of $18 million bribery scandal, which came in the open in 1996, involved payments allegedly received by country’s leading politicians through hawala brokers. From the list of those accused also included Lal Krishna Advani who was then the Leader of Opposition.

Thus, for the first time in Indian politics, it gave a feeling of open loot all around the public, involving all the major political players being accused of having accepted bribes and also alleged connections about payments being channelled to Hizbul Mujahideen militants in Kashmir.

8) IPL Scam

Well, I am running out of time and space over here. The list of scandals in India is just not ending and becoming grave by every decade. Most of us are aware about the recent scam in IPL and embezzlement with respect to bidding for various franchisees. The scandal already claimed the portfolios of two big-wigs in the form of Shashi Tharoor and former IPL chief Lalit Modi.

9,10) Harshad Mehta & Ketan Parekh Stock Market Scam

Although not corruption scams, these have affected many people. There is no way that the investor community could forget the unfortunate Rs. 4000 crore Harshad Mehta scamand over Rs. 1000 crore Ketan Parekh scam which eroded the shareholders wealth in form of big market jolt.

Memorable Photographs

UGC Sponsored National Seminar on Maternal and Child Health : A Challenge of the MDG

With Judge of Supreme Court of India Shri Radhakrishnan

Indian Parliamentary Privileges

Indian Parliamentary Privileges

By Venudhar Routiya

LL.M.(Constitutional & Administrative Law) & UGC-NET

Democracy is a form of government in which all citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal (and more or less direct) participation in the proposal, development and passage of legislation into law. It can also encompass social, economic and cultural conditions that enable the free and equal practice of political                         self-determination. The term parliamentary privileges is used in Constitutional writings to denote both these types of rights and immunities. Sir Thomas Erskine May has defined the expression ?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 exceed those possessed by other bodies or individuals.

Some powers and privileges of each House of Parliament to which they are able to work independently and effectively and prestige, authority and its members could protected. House uninterrupted services to its members without the use of your work can not play sothat members are individually parliamentary provilege. In addition, the right to uninterrupted exemptions relating to parliamentary duties to perform and the rights of voters are also to protect. Evaluate the true nature and extent of parliamentary privilege as it makes clear the need and does such a notion is rejected.

Article 105 of Constitution of India : Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof;
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.

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, and otherwise 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.

Parliamentary privileges-this article defines parliamentary privileges of both Houses of Parliament and of their members and committees. Article 194, which is an exact reproduction of Article 105, deals with the State Legislatures and their members and committees. To enable Parliament to discharge functions properly the Constitution confers on each member of the Houses certain rights and immunities and also certain rights and immunities and powers on each house collectively. Parliamentary privilege is an essential incident to the high and multifarious functions which the legislature is called upon to perform. According to May, the distinctive mark of a 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.

In defining Parliamentary privilege this article adopts certain method. Two privileges, namely, freedom of speech and freedom of publication of proceedings, are specifically mentioned in clauses (1) and (2). 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 has changed 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.

Many people argue that the Indian Parliament in his own case prosecutor and judge both become, Judicial authority should be handed over to courts. I argue that the country's highest institution of the Parliament, If only the control of the Constitution have been contempt or not the decision on how the left can work to another institution. Also logic behind this is that if our political system to work properly so will uphold parliamentary supremacy. MPs of the institution and his duty to the people of their responsibility to protect the rights of people living principles of parliamentary supremacy to be maintained.

India's parliamentary system are based on very few UK’s parliamentary systems. That the Constitution of India, members of Parliament and Legislatures’ privileges are provided  like the British Parliaments. While there back in the UK Parliament to give such privileges tremendous confrontation between the king and the people's representatives had, which was not possible MPs to work uninterrupted, yet here were given the privilege of the people's representatives.

Political  representatives are not a king of Parliament, so just because the shield of privilege to discharge their duties if a barrier is generated to be penalized. In August 1950, the All India Conference of Presiding Officers’ were told “the purpose of the parliamentary privileges of Parliament freedom, authority and dignity is to protect.Members of Parliament and State Legislatures have the task of privileges are necessary to discharge them properly so they can perform their duties without stopping for parole. When a person or an authority members individually or collectively, the House no privileges, rights or immunities is disregarded or is Kutarahat on the breach of privilege of the crime are described”.

If a member of Parliament or the legislature of his actions violate the dignity of Parliament or the legislature or violates the privileges of the House of Parliament or legislature may expel the member from the House.

There have been several instances of expulsion of Members of Parliament in India as well.

1. On 8^th June 1951 a Committee was appointed by the House of the People (Lok Sabha) to investigate the conduct and activities of a Member, Shri H.G. Mudgal. The Committee held that the conduct of the Member in accepting monetary considerations was derogatory to the dignity of the House and inconsistent with the standards which Parliament was entitled to expect from its Members. In pursuance of the Report of the Committee, on a Motion adopted by the House, Shri Mudgal was expelled from the Lok Sabha.

2. In September 1976, Shri Subramaniam Swamy a member was expelled from the Council of States (Rajya Sabha) upon the findings of an Ad Hoc Committee that he had indulged in activities unbecoming of a member and that his membership of the House should be terminated.

3.    On December 19, 1978, consequent on a Motion being adopted by the 6^th Lok Sabha, Smt. Indira Gandhi (a former Prime Minister) was committed to jail till the prorogation of the House and also expelled from the membership of the House for causing serious obstruction, intimidation, harassment and institution of false cases by her Government when she was the Prime Minister against certain officials who were collecting information to answer a certain question in the House during the previous Lok Sabha. However, on May 7, 1981, the 7^th Lok Sabha rescinded the Motion of expulsion of Smt. Gandhi by a Resolution.

4. In more recent times, there have been two cases of expulsion of Members from the membership of the Council of States (Rajya Sabha). On 23^rd December, 2005, a member was expelled from the House, in the wake of telecasting of an undercover operation showing the Member accepting money for asking questions in the House, on the recommendation of the Committee on Ethics of the House which was subsequently accepted by the House on a motion. Similarly, in the wake of telecasting of another sting operation on the recommendation of the Committee on Ethics which was subsequently agreed to by the House by adopting a motion, another Member was expelled from the membership of the House on 21^st March, 2006 for his act of demanding commission for execution of works/projects under the Members of Parliament Local Area Development Scheme (MPLADS), which the Committee felt, had brought the House into disrepute.

5. There have also been cases of Members expelled by the Legislative Assemblies of the States in India.

6. A question arises as to what extent the expulsion of its members by Parliament or the State Legislatures is justiciable and the expelled members can seek relief from the Courts in India. It is settled law that the Courts have the power to interpret the existence and scope of a power, privilege or immunity of Parliament under Article 105 (3) or the State Legislatures under Article 194 (3). However, articles 122 and 212 of the Constitution state that the validity of any proceedings in Parliament and State Legislatures shall not be called in question on the ground of any alleged irregularity of procedure. The question whether the judiciary can interfere in matters of Parliamentary privileges or not has been examined by the Indian Judiciary at different points of time in different situations. On each occasion, the judiciary has arrived at the conclusion that it cannot interfere in matters of privileges of Parliament and recognized that a House of Parliament or a State Legislature is the sole authority to judge as to whether or not there has been a breach of privilege in a particular case. It has also been held that the power of the House to commit for contempt is identical with that of the House of Commons. The Supreme Court of India has, however, uptil now not pronounced a judgement whether the privileges of Parliament or State Legislatures include the power to expel their Members albeit there have been conflicting judgements of the High Courts in different States over the issue. As a matter of fact, the Supreme Court of India has never had an occasion to consider whether the power vested in the House of Commons to expel its members, vests in the Legislatures or Parliament in India. The Supreme Court, however, while dealing with the power of a State Legislature to punish citizens who are not its members for contempt alleged to have been committed by them outside the four walls of the Legislature, had observed in Special Reference No.1 of 1964, as reported in AIR 1965 SC 745, that not all powers and privileges of the House of Commons vest in the Indian Parliament and Legislatures. As an example, the Court observed that the power of the House of Commons to regulate its Constitution cannot be claimed by the Indian Legislatures. While not explicitly setting out in the judgement, the reasoning appeared to be that unlike the case in England, India had a written Constitution and the constitution of Parliament and the State Legislatures is regulated by Chapter-III of Part VI and Part XV of the Constitution and the Representation of the People Acts, 1950 and 1951. The Court further observed that the power, privileges and immunities enjoyed by British Parliament in its historical capacity as a Superior Court of Record cannot be claimed by Indian Legislatures since they are not superior courts of record. The Punjab and Haryana High Court had, however, relying on the said observations of the Supreme Court held in a case that since the Indian Legislatures do not have the power to regulate their own Constitution and are not superior courts of record, they do not have the power to expel members. It may be pertinent to note in this context that the observations of the Supreme Court on which the Punjab and Haryana High Court relied were in a case on different facts which did not relate to any action by a Legislature against its member but against a citizen ignoring in the process the observation of the Supreme Court that they were “not dealing with any matter relating to the internal management of the House in the present proceeding”. In sharp contrast to this judgement of the Punjab and Haryana High Court, the Madhya Pradesh High Court in another case had upheld the view that the Indian Legislatures have the power to expel their members. It was held by the Court that the power of the House of Commons to expel is independent of the power to regulate its own constitution.

7. In a nutshell, the Parliament in India and the State Legislatures alike have, like the House of Commons in England, viewed gross acts of misdemeanor/misconduct on the part of their Members very seriously and exercised their inherent penal jurisdiction by expelling them from the membership of the Houses to which they belong. Two Members of the Council of States (Rajya Sabha), who were recently expelled from the membership of the House as also those members of the House of People (Lok Sabha) who were expelled from Lok Sabha, have filed writ petitions in the Supreme Court/Delhi High Court challenging their expulsion and raising questions over the competence of the House to expel them. May be that the Supreme Court, which is hearing all the writ petitions together, this time adjudicates on the question as to whether the power vested in the House of Commons to expel its Members vests in the State Legislatures and Parliament in India.

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. 32 contended 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 such debates 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.

Law Courts and Privileges Article 105, so also Article 194 subjects the powers, privileges and immunities of each House as well as all its members and all its committees not only to the laws made by the appropriate legislature but also to all other provisions of the Constitution. Both these articles far from dealing with the legislative powers of the Houses of Parliament or of State Legislature respectively are confined in scope to such powers of each House as it may exercise separately functioning as a House .

A House of Parliament or Legislature cannot try anyone or any case directly as a court of justice can, but it can proceed quasi judicially in cases of contempt of its authority or take up motions concerning its privileges and immunities in order to seek removal of obstructions to the due performance of its legislative functions. If any question of jurisdiction arises as to a certain matter, it has to be decided by a court of law in appropriate proceedings. For example, the jurisdiction to try a criminal offence such as murder, committed even within a House vests in ordinary courts and not in a of Parliament or in a State Legislature. Also, a House of Parliament or State Legislature cannot in exercise of any supposed powers under Articles 105 and 194 decide election disputes for which special authorities have been constituted under the Representation of People Act, 1951 enacted in compliance with Article 329.

Parliamentary Privileges and Fundamental Rights In Pandit M.S.M. Sharma's case it was also contended by the petitioner that the privileges of the House under A.194 (3) are subject to the provision of Part III of the Constitution. In supposrt of his contention the petitioner relied n the Supreme Court's decision in Gunupati Keshavram Reddi v. Nafisul Hasan. In this latter case Homi Mistry was arrested at his B'bay residence under a warrant issued by the Speaker of U.P. Assembly for contempt of the House and was flown to Lucknow & kept in a hotel in Speaker's custody. On his applying for a writ of habeas corpus, the Supreme Court directed his release as he had not been produced before a magistrate within 24 hours of his arrest as provided in Article 22 (2). This decision therefore indicated that Article 194 (or Article 105) was subject to the Articles of Part III of the Constitution.

In Sharma's case the Court held that in case of conflict between fundamental right under Article 19 (1) (a) and a privilege under Article 194 (3) the latter would prevail. As regards Article 21, on facts the Court did not find any violation of it. In Powers, Privileges and Immunities of the State Legislature, Re , the proposition laid down in Sharma's case was explained not to mean that in all cases the privileges shall override the fundamental rights.

The rules of each House provide for a committee of privileges. The matter of breach of privilege or contempt is referred to the committee of privileges. The committee has power to summon members or strangers before it. Refusal to appear or to answer or to knowingly to give false answer is itself a contempt. The committee's recommendations are reported to the House which discusses them and gives its own decision.

Conclusion:
There is a clear demarcation as to what all rights and privileges are absolute and what are not. For example, in India Legislative Assemblies and Parliament never discharge any judicial function and their historical and constitutional background does not support their claim to be regarded as courts of record in any sense. No immunity from scrutiny
by courts of general warrants issued by House in India can therefore be claimed.

Both the Parliament and State Legislatures have a duty to look carefully before making any law, so that it doesn't harm other rights. It is also a duty of the members to properly use these privileges and not misuse them for alternate purposes that is not in the favour of general interest of nation and public at large. Thus what we must keep in mind is the fact that ?power corrupts and absolute power corrupts absolutely. For this not to happen under the privileges granted, the public and the other governing body should always be on vigil

Reference :

1.       Sansdiya Patrika, Lok Sabha

2.       Parliamentary debet, Lok Sabha

3.       50 years of Parliaments, Subhash Kashyap, Ex-Secretary General, Lok Sabha

4.       Indira Nehru Gandhi v.Raj Narain 1975 Supp.SCC 1, 47: AIR 1975 SC 2299

5.       Powers, Privileges and Immunities of the State Legislature, Re, AIR 1965 SC 745: (1965) 1 SCR 413.

6.       Sir Thomas Erskine May: Parliamentary Practice, 16th Edn., Chapter III, p.42.

7.       Jatish Chandra Ghosh v. Harisadhan Mukharjee AIR 1956 Cal 433.

8.       In case of Parliament, Articles 118 and 120.

9.       Rule 248: there are similar provisions in the rules of Rajya Sabha.

10.    P.V.Narsimha Rao v. State (1998) 4 SCC 626

11.    In case of Parliament, Articles 118 and 120.

12.    Ansumali Majumdar v. State of W.B. AIR 1952 Cal. 632

13.    Shri Agnihotri, Secretary General, Rajya Sabha