The Red & Green Carpet's Tutelage

The Red & Green Carpet's ‘Tutelage’

Any attempts to personify the Indian Parliament never fails to discover the grassroot green colour of the House of the People, and the Royal Blood colour of the Council of the States. I will make an attempt to explore our highest Law-making body in the constitutional sense, and lay bare to my readers the stems of our Parliament, even stronger still, to make known the tutelage it exercised over the citizens of India in seven decades of independence.

The presence of a green-coloured carpet in Lok Sabha and a red-coloured carpet in Rajya Sabha has merely a symbolic significance. It serve as a visual reminder of the different roles and responsibilities of the members of the Houses. Green represents life, harmony, and growth which are important values in the functioning of our Parliament. Red represents Royalty, vibrancy, power & courage, representing sacrifice and commitment which are important values for the members of Rajya Sabha.

The highest law-making body of our country derives her soul from Article 79 of the Indian Constitution, which mandates the extant of a Parliament consisting of the President and two Houses, the Council of States & the House of the People. The composition of and election to these houses are both different, articulated in the subsequent articles of the Constitution. House of the People should consist not more than 552 members, Rajya Sabha not more than 250 members. Rajya Sabha is chaired by the Vice President, who is the ex-officio chairman of the Rajya Sabha. Deputy chairman is chosen from amongst the members. Whereas the Lok Sabha is to be chaired by the Speaker chosen from amongst the members. Primary functions of both of them, is to preside over and regulate the proceedings according to the Rules of procedure of the house, take decisions upon important matters. The Speaker of the Lok Sabha, or the House of the People, is equipped with disciplinary powers comparable with those of Speaker of the House of the Commons of the United Kingdom. It is the function of the speaker to maintain order during debate and to enforce the rules which govern its conduct. He interprets standing orders, deals with points of order when they are raised and gives ruling when called upon to do so. He shall be entitled to a casting vote, in case of tie. Speaker also has power, to adjourn or suspend the house if there is no quorum, which is fixed at one-tenth of the total number of the members of the House. The decision of the Speaker as to a question whether a bill is to be regarded as a Money Bill, the decision of the Speaker is usually final and Binding. However, it is to be noted, that the Supreme Court, in the case of Mohd. Saeed Siddiqui v. State of U.P., held that the decision of the Speaker was subject to Judicial Review, and that the Speaker’s Decision could be challenged if it was shown that the classification was made in violation of constitutional provisions or with the intention of bypassing the scrutiny of the Rajya Sabha.

In addition to these constitutional duties conferred upon the Speaker, there are other varieties of powers regarding the detailed conduct of the Business of the House. The rules require the speaker to decide on the admissibility of Adjournment motions, questions, etc. Pandit Jawaharlal Nehru, unveiling the portrait of Vithalbhai Patel, the first Indian who presided over the Central Legislative Assembly, reflected the honour and dignity of this Chair:

Now, Sir, on behalf of the Government, may I say that we would like the distinguished occupant of the Chair now and always to guard the freedom and liberties of the House from every possible danger, even from the danger of executive intrusion. There is always a danger. . . from majority that it may choose to ride roughshod over the opinions of the Minority, and it is there that the Speaker comes in to protect each single member, or each single group from any such unjust activity by a dominant group or a dominant Government. . . The Speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the Nation, in a particular way, the Speaker becomes the symbol of the Nations's freedom and Liberty. Therefore it is right that that should be an honoured position, a free position and it should be occupied always by men of outstanding ability and impartiality.

A citizen of India needs to be a registered voter in any parliamentary constituency of India for being qualified to be elected as a Member of Parliament, besides not being less than thirty years of age in case of Rajya Sabha, and not less than 25 years of age in case of House of the People. The functions that a citizen would be expected to discharge as a member of Parliament require experience, certain amount of knowledge, and practical experience in the affairs of the world, and so these  qualifications shall be able to secure the proper sort of candidates who would be able to serve the house better than a mere ordinary voter might be. 

Article 102 of the Constitution, lays down five primary grounds of disqualification for being chosen as or for being a member of either House of Parliament. These are (i) if he holds any Office of Profiit under the Union or the State government, other than an office expressly barred by the government for such purpose; (ii) if he is of unsound mind; (iii) if he is an undischarged insolvent; (iv) if he is not a citizen of India; (v) if he is so disqualified by or under any law made by Parliament. If any question arises, as to the Disqualification of any member post-election, under clause (1) of Article 102, the question shall be referred to the President and his decision shall be Final.

An office of Profit under the state, would embrace such elements of an Office of tenure, duration, duties and emoluments but the element of emolument is not essential to the existence of an office. It means a fixed position for performance of duties. Such office of Profit needs to be debarred, to secure the Independence of the Members of Parliament and to ensure that Parliament does not have members who receive favours or benefits from the executive and who, consequently, being under an obligation to the executive, might be amenable to its influence. Also, the ‘Office’ necessarily implies that there must be an office which exists Independently of the Holder of the Office. So that an office or employment is an office or employment which is subsisting, permanent and a substantive position which has an existence independent from the person who filled it, which goes on and is filled in succession by successive holders; and if you merely have a man who is engaged on whatever terms to do duties which are assigned to him, his employment to do those duties does not create an office to which duties are attached. He merely is employed to do certain things and that is the end of it. Office of the Chief of Defence Staff, Auditor and Comptroller general of India, are felicitous examples of such an office.

Another element of this office as propounded by Supreme Court is an element of ‘Pecuniary Gain’ irrespective whether such gain is drawn or not. Thus, the top court in Jaya Bacchan v. Union of India, held:

If the ‘Pecuniary Gain’ is ‘Recievable’ in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.

Laying down this proposition, upholding the disqualification of the Petitioner who held the office of Chairperson of U.P. Film Development Council with entitlement to honorarium and several allowances, and perquisites even though the petitioner claimed to have received none. 

I deem it apt here to note, in addition to the above interpretations of ‘Office of Profit’, the Supreme Court has laid down five tests which would apply to determine if an office is held under the government:

1. Whether government makes appointment to office;

2. Whether government has the right to remove or dismiss the holder of the office;

3. Whether government pays the remuneration;

4. Whether the functions which the holder of the office performs are for the government; and

5. Does the government exercise any control over the performance of those functions.

But it is not necessary that all these factors must coexist. Whether stress will be laid on one factor or the other will depend upon facts of each case.

Under Sub-clause (e) of Clause (1) of Article 102, the relevant statute enacted is the Parliament (Prevention of Disqalifiaction) Acts, 1959 exempting certain offices from being regarded as not to disqualify their holders for membership of either House of Parliament. Reference may be made to Section 3 of said act, for a detailed analysis, and such offices so not disqualified.

To enable the Parliament to discharge its functions properly, the Constitution confers on each member of the House certain rights and immunities, and also certain rights and immunities and powers on each House collectively. The term “Parliamentary Privileges” is used in constitutional writings to denote both these types of rights and immunities. Article 105 of the Constitution, explicitly lays down these privileges. 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 UK at the commencement of the Constitution until they were defined by an act of Parliament. Though the amendment has changed the wordings in the later part of clause (3) insofar 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 20 June 1979, in effect the positions remain the same as before.

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 fulfilment of functions. Privileges are enjoyed by individual members because the house cannot perform its functions without unimpeded use of services of its members.

The freedom of speech as conferred by clause (1), means that no Member of Parliament shall be liable to any proceedings, civil or criminal, in any court for the statements made in debates in Parliament or any committee thereof. The freedom of speech conferred under this Article cannot, 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 may say outside. Accordingly, if a member publishes his speech outside Parliament, he will be held liable if the speech is Defamatory. A divided court in P.V. Narasimha Rao v. State has held that the privilege of Immunity from Court Proceedings in Article 105(2) extends even to bribes taken by the Members of Parliament for the purpose of voting in a particular manner in Parliament. However, the court was unanimous that Members of Parliament who gave bribes, or who took bribes but did not participate in the voting, could not claim immunity from court proceedings under Article 105(2).

It may be noted that clause (1) of Article 105 is made “Subject to the Provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament”. The words “regulating the procedure 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 the Constitution relating to the procedure of Parliament, i.e. subject to the articles relating to procedure 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, except when a resolution of his removal has been moved as per procedure under Article 124(4) and Judges (Inquiry) Act, 1968.

Clause (2) of Article 105, it is noted, expressly declares 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. Other privileges include freedom from Arrest limited to civil causes, right to exclude strangers although it is rarely exercised in modern times, Right to prohibit the publication of debates, Right of the house to regulate its own constitution, and to punish members and outsiders for contempt.

Parliamentary privileges vis-à-vis Fundamental Rights under Part III of the Constitution, is still an ongoing Debate. However, as a general principle of Law, specific law shall prevail over General law. In that respect, privileges under Article 194 and 105 are of a specific nature, and that under Article 19, is of a general Nature. However, the Court in Powers, Privileges and Immunities of State Legislature, re, it was explained not to mean that in all cases the privileges shall override the Fundamental Rights. The Majority opinion said:

We do not think it would be right to read the majority decision as laying down a general proposition that whenever there is a conflict between the provisions of the latter part of Article 194(3) and any of the provisions of the Fundamental Rights guaranteed by Part III, the latter must yield to the former. The majority decision, therefore, must be taken to have settled that Article 19(1)(a) would not apply, and Article 21 would.

A well thought-out and carefully drafted provisions of the Parliament tells us about the painstaking intent of the our Constitution-makers to establish a robust and comprehensive framework for governance that can adapt and evolve with the changing needs and aspirations of the Indian citizens. Nevertheless, this account of the Parliamentary Provisions in the Constitution should not be construed as an exhaustive one, since the evolving dynamics of Judicial Decisions, and the changing socio-political landscape of the country, continue to shape and redefine the interpretation and application of these provisions in new and unforeseen ways. Heed should always be paid to Constituent Assembly Debates, for a soul-drenching consciousness towards understanding the Indian Constitution.

Chinmay Madaan is a second year Law Student at National Forensic Sciences University, Gandhingar.