Judicial Review of Privilege

What is not reviewable

Irregularity of procedure. Articles 122(1) and 212(1) prohibit the validity of any proceedings in the legislature from being called in question in a court merely on the ground of irregularity of procedure. Chapter 970 made the point and the second M.S.M. Sharma decision is the illustration.

Expediency and necessity. The expediency and necessity of the exercise of a power or privilege by the legislature are for the determination of the legislative authority and not for determination by the courts.

The truth, correctness or adequacy of the material. The truth or correctness of the material will not be questioned by the court, nor will it go into the adequacy of the material or substitute its opinion for that of the legislature; and even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action.

What is reviewable

Substantive or gross illegality and unconstitutionality. The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny.

The grounds, in the Court's own list. An ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision, but not on grounds of lack of jurisdiction or its being a nullity for some reason such as:

gross illegality; irrationality; violation of constitutional mandate; mala fides; non-compliance with the rules of natural justice; and perversity.

A trespass on fundamental rights. The Judicature is not prevented from scrutinizing the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens, and the broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct.

Articles 20 and 21 specifically. If a citizen, whether a non-member or a member of the Legislature, complains that his fundamental rights under article 20 or 21 had been contravened, it is the duty of this Court to examine the merits of the said contention, especially when the impugned action entails civil consequences. That is the 1964 opinion carried forward, chapter 980, and extended in terms to a member as well as a stranger.

Jurisdictional error. There is no foundation to the plea that a legislative body cannot be attributed jurisdictional error. Chapter 1080 is the instance: the Punjab Vidhan Sabha exceeded its powers.

The restraints the Court imposed on itself

An answer that stops at the grounds has given only the half that favours the citizen.

Deference. Parliament is a co-ordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny.

A presumption of regularity. Having regard to the importance of the functions discharged by the legislature and the majesty and grandeur of its task, there would always be an initial presumption that the powers and privileges have been regularly and reasonably exercised, not violating the law or the constitutional provisions, this presumption being a rebuttable one.

A different standard from ordinary administrative review. The area of privileges being exceptional and extraordinary, its acts ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action, the Court confining itself to the acknowledged parameters of judicial review and within judicially discoverable and manageable standards.

And on mala fides, an extremely heavy burden. Ordinarily the legislature as a body cannot be accused of having acted for an extraneous purpose or being actuated by caprice or mala fide intention, and the court will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters; but if in a given case allegations to that effect are made, the Court may examine the validity of the contention, the onus on the person alleging being extremely heavy.

And review is not usurpation. The judicial review of the manner of exercise of the power of contempt or privilege does not mean that the said jurisdiction is being usurped by the judicature.

The two propositions about the Rules

The rules are subject to the Constitution. The rules which the legislature has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution.

And their existence proves nothing. Mere availability of the Rules of Procedure and Conduct of Business, as made by the legislature in exercise of enabling powers under the Constitution, is never a guarantee that they have been duly followed.

That second proposition matters more than it looks. Chapter 980 recorded that article 21 is satisfied because article 194(3) with the rules made under article 208 supplies the procedure, and chapter 990 recorded the Allahabad High Court holding the same. This proposition says that the existence of rules is not the end of the inquiry; whether they were followed is a question the Court may ask.

How the pieces fit

Chapter 980: article 19(1)(a) does not control privilege; article 21 does. Chapter 990: the House has the Commons' power to commit, but not the general warrant, because of articles 32 and 226. Chapter 1080: the power exists but does not reach an executive act unconnected with legislative proceedings, and not acts of a previous term. This chapter: and where the House acts within its power, the manner of its exercise is reviewable for gross illegality, irrationality, violation of constitutional mandate, mala fides, breach of natural justice and perversity, but not for irregularity of procedure, and not on the adequacy of the material.

Put together, that is a complete answer to "can a claim of privilege oust the Court's jurisdiction", and the answer is no: the Court decides whether the privilege exists, whether the act is within it, and whether its exercise is vitiated; what it does not do is sit in appeal on the House's judgment of the facts.

A worked example

A House expels a member after an inquiry by a committee.

He says the rules were not followed in nominating the committee. Irregularity of procedure: barred by article 122(1).

He says the material before the committee was thin. The Court will not go into the adequacy of the material or substitute its opinion; and even if some of the material was irrelevant, it will not interfere so long as some relevant material sustains the action.

He says he was never heard. Non-compliance with the rules of natural justice is on the list, and it is reviewable.

He says the expulsion was to remove a political opponent. Mala fides is on the list, but the onus is extremely heavy and the Court will not lightly presume abuse or misuse.

He says the act for which he was expelled had no connection with the House's functions. That is jurisdictional error, and chapter 1080 shows it succeeding.

He says his expulsion took away his livelihood without procedure established by law. Article 21: the Court must examine the merits, especially since the action entails civil consequences.

The Speaker's counsel says article 105(3) gives the House exclusive cognizance. There is no basis to a claim of exclusive cognizance or absolute immunity in article 105(3), and the English doctrine is displaced by articles 122(1) and 212(1).

What beginners get wrong

That article 122(1) bars all review. It bars a challenge merely on the ground of irregularity of procedure.

That article 105(3) confers immunity from the courts. No basis for a claim of exclusive cognizance or absolute immunity.

That the Court will reweigh the material. It will not question its truth, correctness or adequacy, nor substitute its opinion, and will not interfere if some relevant material sustains the action.

That mala fides is easy to plead. The onus is extremely heavy, against a rebuttable presumption of regularity.

That review means the Court takes over the privilege jurisdiction. Judicial review of the manner of exercise does not mean the jurisdiction is usurped.

That English case law on exclusive cognizance applies. Articles 122(1) and 212(1) displace it and render it irrelevant.

Quick revision

The starting point: no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution; no basis for exclusive cognizance or absolute immunity under art 105(3); and arts 122(1) and 212(1) displace the English doctrine, rendering that case law irrelevant here.

Not reviewable: irregularity of procedure; the expediency and necessity of the exercise; the truth, correctness or adequacy of the material; and the presence of some irrelevant material where some relevant material sustains the action.

Reviewable: substantive or gross illegality or unconstitutionality; a trespass on fundamental rights, and specifically a complaint under art 20 or art 21 by a member or a non-member, especially where civil consequences follow; jurisdictional error; and, notwithstanding an ouster clause, lack of jurisdiction, gross illegality, irrationality, violation of constitutional mandate, mala fides, non-compliance with natural justice and perversity.

The restraints: deference to a co-ordinate organ; a rebuttable presumption of regularity; not the traditional parameters of administrative review; and on mala fides an extremely heavy onus. Review is not usurpation.

On the rules: they are subject to the Constitution, and their mere availability is never a guarantee that they have been duly followed.

Test yourself

1. Can a claim of parliamentary privilege oust the jurisdiction of the courts? No. In Raja Ram Pal the Supreme Court held that the constitutional system of government abhors absolutism, that it is a cardinal principle of our Constitution that no one however lofty can claim to be the sole judge of the power given under the Constitution, and that mere co-ordinate constitutional status does not disentitle the Court from exercising judicial review of action partaking of a judicial or quasi-judicial character. It held further that there is no basis for a claim of bar of exclusive cognizance or absolute immunity for parliamentary proceedings under article 105(3), and that articles 122(1) and 212(1) displace the broad English doctrine of exclusive cognizance of the internal proceedings of the House, rendering the case law emanating from courts in that jurisdiction irrelevant to the system of governance provided by the Constitution of India.

2. On what grounds is the exercise of privilege reviewable, and on what grounds is it not? It is reviewable for substantive or gross illegality or unconstitutionality; for a trespass on the fundamental rights of citizens, and specifically where a citizen, whether a member or not, complains of a contravention of article 20 or article 21, which the Court has a duty to examine on the merits especially where the impugned action entails civil consequences; and for jurisdictional error, there being no foundation for the plea that a legislative body cannot be attributed such error. Notwithstanding any ouster clause attaching finality, review lies on grounds of lack of jurisdiction or nullity for gross illegality, irrationality, violation of constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity. It is not reviewable merely on the ground of irregularity of procedure, which articles 122(1) and 212(1) exclude; the expediency and necessity of exercising the power are for the legislature; and the Court will not question the truth or correctness of the material, will not go into its adequacy or substitute its own opinion, and will not interfere where some of the material is irrelevant so long as some relevant material sustains the action.

3. What restraints did the Court place on its own jurisdiction? Four. That Parliament is a co-ordinate organ whose views deserve deference even while its acts are amenable to scrutiny. That, having regard to the importance of the legislature's functions and the majesty and grandeur of its task, there is always an initial presumption that its powers and privileges have been regularly and reasonably exercised without violating the law or the Constitution, a presumption which is rebuttable. That the area of privileges being exceptional and extraordinary, its exercise ought not to be tested on the traditional parameters of judicial review as an ordinary administrative action would be, the Court confining itself to acknowledged parameters and to judicially discoverable and manageable standards. And that although a legislature cannot ordinarily be accused of acting for an extraneous purpose or from caprice or mala fides, and abuse will not lightly be presumed, the Court may examine such an allegation where it is made, the onus on the person alleging being extremely heavy. The Court added that judicial review of the manner of exercise of the power of contempt or privilege does not mean that the jurisdiction is being usurped by the judicature.

4. What is the significance of the two propositions about the Rules of Procedure? That the rules which a legislature makes for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution, and that the mere availability of such rules is never a guarantee that they have been duly followed. The first subordinates the rules to the Constitution, so that a rule cannot authorise what the Constitution forbids. The second matters because both M.S.M. Sharma and Keshav Singh held that article 21 is satisfied where article 194(3) is read with the rules made under article 208, the rules supplying the procedure established by law. That reasoning would be empty if the existence of rules ended the inquiry. The proposition establishes that whether the rules were in fact followed remains a question the Court may ask, which is what gives the article 21 guarantee practical content.