JUDGMENT B. C. Basak, C. J.- These two writ petitions have been filed by three petitioners for declaration that the impugned resolution/order of the Bihar Legislative Assembly (hereinafter referred to as 'the Bihar Assembly') dated 25th March, 1992, and the notification of the Assembly dated the 25th of March, 1992, issued under the signature of the Secretary of the Assembly are unconstitutional, ultra vires, illegal and inoperative and that the same be quashed and for a writ of mandamus restraining the respondents from enforcing the same. 2. FACTS 2.1 The original resolution in Hindi is quoted herein below:- iz’u ;g gS& ^^fd ekuuh; lnL; loZJh cPpk pkScs] ‘kdquh pkS/kjh ,oa vouh’k dqekj flag dks lnu dh voekuuk ds vkjksi esa lnu dh lnL;rk lekIr dh tk;sA** izLrko Lohd`r gqvkA** eSa le>rk gw¡ fd ;g izLrko fcuk fdlh fojks/k ds loZ&lEefr ls ikfjr gqvkA ¼bl volj ij lnu esa FkiFkihA½ 2.2. The official English translation of the same is quoted herein-below:- "The question is this:- "That the membership of Hon'ble members Sarbshree Bachba Chaubey, Sakuni Chaudhary and Avanish Kumar Singh may be terminated on the charge of the contempt of the House" Proposal approved I understand that this proposal has been passed unanimously without any protest. (Thumping in the Assembly at this occasion)." 2.3. The said notification in Hindi provides as follows:- vf/klwpuk iVuk fnukad 25 ekpZ] 1992 bZŒA la[;k&dkfeZd&42@92&822@foŒ lŒA loZ&lk/kkj.k dh tkudjh ds fy, ;g izdkf’kr fd;k tkrk gS fd lnu esa fnukad 24-3-92 ,oa 25-3-92 dks fcgkj fo/kku&lHkk izlhek ,oa lnu esa ekuuh; v/;{k egksn; ds lkFk gq, nqO;Zogkj] v’kksHkuh; ?kVuk ,oa lnu dh voekuuk ds vkjksi esa ekuuh; lnL; Jh jesUnz dqekj us ekuuh; lnL; Jh cPpk pkScs] {ks= la[;k&21 ¼dVS;k½ Jh ‘kdquh pkS/kjh {ks= la[;k 179 ¼rkjkiqj½ ,oa Jh vouh’k dqekj {ks= la[;k&14 ¼<kdk½ dks fo/kku&lHkk dh lnL;rk lekIr djus dk izLrko j[kk ftls lnu }kjk loZ&lEer ls ikfjr fd;k x;kA ;g vkns’k fn;k x;k fd ekuuh; lnL; loZJh cPpk pkScs] ‘kdquh pkS/kjh ,oa vouh’k dqekj flag dks lnu dh voekuuk ds vkjksi esa mudh lnL;rk fnukad 25-3-92 ds vijkg~u ls lekIr dh tkrh gSA v/;{k] fcgkj fo/kku&lHkk ds vkns’k ls] gŒ ;qxy fd’kksj izlkn lfpo] fcgkj fo/kku&lHkk 2.4. The official English translation of the same is given hereinbelow:- "Notification Patna, Dated 25th March, 1992. The official English translation of the same is given hereinbelow:- "Notification Patna, Dated 25th March, 1992. No. Personnel-42/92-822/L.A. It is published for the information of the general public that on the charges of misbehaviour with the Hon'ble Speaker and occurrence and contempt of the House, having been committed in the Bihar Legislative Assembly premises, as also in the House on 24.3.92 and 25.3.92 the proposal by Shri Ramendra Kumar, Hon'ble Member for termination of membership from the Legislative Assembly in respect of Hon'ble members Shri Bacha Chaubey, Area No. 21 (Kateya), Shri Sakuni Chaudhary, Area No. 179 (Tarapur) and Shri Avaneesh Kumar Singh, Area No. 14 (Dacca) was passed unanimously by the House. Order was passed to the effect that membership of Hon'ble Members, Sarb-shree Bacha Chaubey, Sakuni Chaudhary and Avaneesh Kumar Singh is terminated from the Legislative Assembly from 25.3.92 in the afternoon on charge of contempt of the House. By order of the Speaker Bihar Legislative Assembly, Sd/- Jugal Kishore Prasad, Secretary, Bihar Legislative Assembly." 2.5 We ought to point out that charges/allegations against these three petitioners cannot be found in any definite form or at one place as there was no formal charge or allegation formulated but the resolution was adopted on 25.3.92 after certain discussions, took place and various allegations were made in the Assembly on that day by various members including the Speaker. It may be pointed out in this context that although reliance was placed in the impugned notification to some alleged occurrences, in the House as also the Assembly premises, on the 24th March, 1992, as a matter of fact there was no proceeding of the Assembly on that day excepting passing a condolence resolution. This would be apparent from the document produced on behalf of the petitioners in the first writ petition, being the proceedings of the House dated 24-3-92, which was accepted to be correct on behalf of the respondents nos. 1 and 2. This was recorded by us by our order dated 6-5-92 passed in the first writ petition. It may be mentioned that the proceedings of the House on 25-3-92 was annexed to the first writ petition and also in the counter-affidavit filed on behalf of the respondent no. 2. 1 and 2. This was recorded by us by our order dated 6-5-92 passed in the first writ petition. It may be mentioned that the proceedings of the House on 25-3-92 was annexed to the first writ petition and also in the counter-affidavit filed on behalf of the respondent no. 2. The further admitted position is that though there are charges of misbehaviour against the petitioners in the said notification al1eged to have been committed in the Assembly premises "as also in the House on 24-3-92 and 25-3-92" the petitioners were not present in the House either on 24-3-92 or on 25-3-92. From the proceedings of 25-3-92, as annexed, it would appear that the discussions took place, allegations were made and the resolution for expulsion was adopted on that very day. The matter was not sent to or considered by any Privilege Committee and the petitioners were never given any opportunity to explain their conduct. I shall discuss this aspect of the matter in details when I deal with the question of mala fide and the principles of natural justice and "fair play". 2.6. The first writ petition was moved challenging the said resolution and notification on behalf of Sakuni Choudhary and Bachcha Choubey, both Congress (I) M.L.As. The Speaker of the Bihar Assembly was made respondent no. 1 in the first writ petition and the Secretary of the Assembly was made respondent no. 2. I would like to point out that subsequently, on the application of the petitioners, the Election Commission of India was made respondent no. 3 in the writ petition. When the first writ petition was moved in the morning of 26-3-92 we directed notice to be given to the respondents, but it appears that some one claiming to be the P.A. of the Speaker refused to accept the notice, with a copy of the writ petition, on the ground that no such notice can be received from the Advocate. When this was brought to our notice, we directed that a fresh attempt be made to serve such notice on the respondents, but we directed that the Court shall proceed with the hearing of the petition. When this was brought to our notice, we directed that a fresh attempt be made to serve such notice on the respondents, but we directed that the Court shall proceed with the hearing of the petition. A prayer was made on behalf of the petitioners for interim order on that day itself, that is, 26-3-92, but we did not pass any interim order on that day, because on that day there was no time left to consider the matter as the Court was rising, but gave liberty to the petitioners to renew their prayer for interim order next day. 2.7 When this matter was taken up next day, i.e., on 27-3-92, Mr. Shakeel Ahmad Khan, Advocate, appeared on behalf of the respondents nos. 1 and 2 and undertook to file Vakalatnama on behalf of the respondents nos. 1 and 2 by next Monday, i.e., 30-3-92. It was made clear by Mr. Khan that the Speaker had no intention to show any disrespect to this Court and that submissions would be made on the merits of the case. 2.8 The second writ petition was filed on 27-3-92 by Avaneesh Kumar Singh, who is a M.L.A of the political party known as B.J.P. In this case also, Mr. Shakeel Ahmad Khan accepted service on behalf of the respondent nos. 1 and 2 and he similarly undertook to file Vakalatnama by next Monday. 2.9 On that day, having heard the learned Advocates for the parties and having considered the relevant provisions of the Constitution and the various decisions cited by the learned Advocates appearing, we were satisfied that a prima facie case was made out in support of the petitions. Having regard to the fact that we had decided to dispose of these applications at the admission stage itself, as per the practice and procedure of this Court, we gave directions for filing of counter affidavits and we fixed a date for hearing of the cases. Having regard to the fact that we were going to dispose of these writ petitions on merits, upon affidavits being filed within a few days, though we did not think it proper to express any final opinion on the merits of the case, but we held that a prima facie case was made out for passing an interim order as we were not prima facie satisfied about the stand taken on behalf of the respondents. In that view of the matter and also on the question of balance of convenience, we passed an interim order of injunction restraining the respondents from giving any effect or any further effect to the impugned notification, being Annexures 1 and 2 to the first petition, and Annexure 2' in the second petition. We did rot think it proper to give any detailed reasons as we were going to hear and dispose of the case on merits, after filing of counter-affidavits, within a few days. This interim order, which was passed in both the cases, was passed in the presence of Mr. Khan, the learned Advocate appearing for the respondents. Subsequently, an application for contempt was filed on behalf of the petitioners in the writ petitions alleging wilful violation of the interim order passed by us on 27-3-92. I ought to point out that at the time of hearing of the writ petitions, the complaint made on behalf of the petitioners that our order was not complied with, was not challenged on behalf of the respondents. 2.10 In the first writ petition, a counter affidavit was filed on behalf of respondent no. 2 wherein, as already stated, the proceedings of the House dated 25th of March, 1992 were enclosed. A similar counter-affidavit was filed in the second writ petition also. We shall deal with the said proceedings in details later on. It was stated in the said affidavits that the same was not to be treated as submission to the jurisdiction of the Court. 2.11 As the facts and the points of law involved in these two writ petitions, involving the three petitioners, were common, accordingly, these two writ petitions were heard together. 3. SUBMISSIONS 3.1 At the time of hearing of the two writ petitioners, Mr. Basudeva Prasad made submissions on behalf of the two petitioners in the first writ petition and Mr. Tara Kant Jha made submissions on behalf of the writ petitioner is the second writ petition. Mr. Shanti Bhushan made submissions on behalf of respondent nos. 1 and 2. Mrs. Renuka Sharma appeared for the Election Commission, the added respondent but did not make any submission. 3.2.1 When the two cases were taken up for hearing, at the out set, a preliminary point was taken by Mr. Mr. Shanti Bhushan made submissions on behalf of respondent nos. 1 and 2. Mrs. Renuka Sharma appeared for the Election Commission, the added respondent but did not make any submission. 3.2.1 When the two cases were taken up for hearing, at the out set, a preliminary point was taken by Mr. Basudeva Prasad to the effect that in view of the wilful violation of the interim order passed by the Court, for which a contempt petition has been filed, the respondents cannot be heard in the main writ petition, until and unless they purged the contempt. In any event; he submitted that the contempt petition should be heard first. In this connection he relied on the following: Hadkinson v. Hadkinson : (1952) 2 All E.R. 567, X. Ltd. v. Morgan-Grampian Ltd : (1990) 1 All E.R. 616 (at 625), Halsbury's Laws of England, 4th Edition; and Oswald on Contempt (10th Edn.). 3.2.2 Mr. Shanti Bhushan, learned Advocate appearing on behalf of the original respondents nos. 1 and 2 has disputed the correctness of this preliminary point. He submitted that the writ court having no jurisdiction to entertain this writ petitions, the interim order was without jurisdiction and accordingly there is no question of any contempt. He has further submitted that in any event the question of "purging the contempt" can arise only if and when the respondents are found guilty of contempt. However, he did not specifically deny that the interim order passed by this Court was not complied with. 3.3 Thereafter on behalf of the original respondents Mr. Shanti Bhushan raised a preliminary point regarding the maintainability of the writ petitions. It was submitted that this Court has no jurisdiction to entertain any writ petition which seeks to examine or challenge the proceedings of a Legislature of a State. As a matter of fact, his submission on this "preliminary" point was not merely confined to the question of maintainability but it was also on the merits of the writ petitions as well, i.e., on the question of scope and extent of the powers and privileges of the House of Commons and the Legislatures of the States in India and the powers of the High Court in its writ jurisdiction to examine such action of the 'Legislature. 'However, in all fairness, I should point out that after a certain stage of his submissions, he admitted that the Court has some limited jurisdiction to entertain a writ petition under Articles 32 and 226 of the Constitution, but only for the limited purpose of ascertaining the scope and extent of the privilege of the Legislatures. However, once it is found that the Legislature had the jurisdiction to take the action as it did, then the Court could not further proceed in the matter or go into the merits of the exercise of the power by the Legislature. In this connection he has placed strong reliance on Article 212. He has contended that this is a case of exercise of power of expulsion for contempt of the House committed inside the House. He has made detailed submissions regarding the scope and extent of privilege of the House of Commons at the commencement of the Constitution and, submitted that all such power of the House of Commons, including power of expulsion, have been conferred on the Legislatures of the States in view of the latter part clause (3) of Art. 94 of the Constitution. He has submitted that the House of Commons had such power of expulsion and the Legislature of a State has accordingly been conferred with such power by the latter part of clause (3). He has submitted that in the instant case it was a question of punishment for contempt of the House committed inside the House which involves the question of exercise of the power and privileges of a Legislature, as contemplated by Art. 194 (3), and this is different from the question of "constitution" or "composition" or "qualification" or "disqualification" within the meaning of Articles 170, 171, 190 or 191 of the Constitution. He has submitted that a law enacted under the first part of Art. 194 (3) may be subject to other provisions of the Constitution including the fundamental rights guaranteed under Chapter III of the Constitution, but that the latter part of Art. 194 (3) is not subject to any other provision of the Constitution. He has further submitted that the question of right of being heard before an order of expulsion is passed cannot and does not arise in as much as this is barred by Article 212. He has further submitted that the question of right of being heard before an order of expulsion is passed cannot and does not arise in as much as this is barred by Article 212. In this context he has submitted that the 44th Amendment to the Constitution, introduced in June, 1979, has not made any change in substance to the latter part of clause (3) of Article 194, excepting deleting the reference to the House of Commons. In this connection, particularly with respect to the question of the jurisdiction of the Court, vis-a-vis, the scope and extent of the powers and privileges of the House of Commons, the exercise of the same by the Legislature of a State, the question of power of Legislature of a State to expel one of its members and the Court's jurisdiction to go into the same, he has relied upon the following M.S.N. Sharma v. Sri Krishna Sinha and others: A.I.R. 1959 S.C. 395 (hereinafter referred to as 1st Sharma Case) and M.S. Sharma v. Dr. Sri Krishna Sinha and others: A.I.R. 1960 S.C. 1186 (hereinafter referred to as the 2nd Sharma Case), Presidential Reference Case reported in A.I.R. 1965 S.C. 745, Halsbury's Laws of England, 4th Edn. Vol. 34 and May's Parliamentary Practice, Yeswant Rao Meghwale v. M.P. Legislative Assembly and others: A.I.R. 1967 Madhya Pradesh 95 (hereinafter referred to as the M.P. Case), the minority judgment in the case of Hardwari Lal v. The Election Commission of India: I.L.R. (1977) 2 Punjab and Haryana 262 (hereinafter referred to as the Punjab case) and K. Anbazhagan and others v. The Secretary, the Tamil Nadu Legislative Assembly, Madras and others: A.I.R. 1988 Madras 275 (hereinafter referred to as the Madras Case). Referring to the decisions in Kihota Hallohon v. Zachilhu and others : (1992) 1 S.C.C. 309 /JI (1) 600 (para 99) he bas submitted that so far as this decision is concerned, it was not a case of exercise of power under the latter part of Art. 194 (3). According to him, in that case, the 10th Schedule of the Constitution was attracted and the Speaker was acting not as a Speaker, but as a Judicial Tribunal and, accordingly, he was amenable to the writ jurisdiction. According to him, in that case, the 10th Schedule of the Constitution was attracted and the Speaker was acting not as a Speaker, but as a Judicial Tribunal and, accordingly, he was amenable to the writ jurisdiction. Otherwise the High Court has no jurisdiction to go into the question of the correctness of the decision of a House in exercise of its powers and privileges. 3.4 Mr. Basudeva Prasad, appearing on behalf of the petitioners in the first writ petition, has submitted, inter alia, that the writ petitions are maintainable, though they are directed against such resolutions/notifications. He has submitted that all the powers claimed by the House of Commons cannot be claimed by the Indian Legislature. One of the privileges claimed by the House of Commons is to determine the qualification/composition of its members. This privilege cannot be claimed by the Indian Legislature. The House of Commons can organise its composition and constitution but the Indian legislatures cannot; in their case this can only be determined by other constitutional provisions or by laws made by the Parliament. He has also submitted that irrespective of the powers of the House of Commons, the Indian Legislature cannot disqualify a person who is not otherwise disqualified under the relevant provisions of the Constitution. He has submitted that the power of expulsion existing, if any with the House of Commons, is an integral part of the power of the House of Commons regarding its power of constitution/composition; but the same has not been conferred on the Legislatures in India. He has further submitted that in view of the different provisions of the Constitution, e. g. Arts. 190 and 191, such power of expulsion would be inconsistent with the same. He has further drawn our attention to the 44th constitutional amendment introduced on 20.6.79 whereby the latter part of Art. 194 (3) has been substituted in place of the original provision as introduced at the time of the commencement of the Constitution. He has submitted that it is not a mere formal amendment by deleting the reference to the House of Commons, as sought to be contended by Mr. Shanti Bhushan. He has submitted that the admitted position is that though no additional privilege can be claimed by the House of Commons, it can give up any of its existing and recognised claims regarding its powers and privileges. Shanti Bhushan. He has submitted that the admitted position is that though no additional privilege can be claimed by the House of Commons, it can give up any of its existing and recognised claims regarding its powers and privileges. In the present case the question is not merely what were the powers and privileges of the House of Commons at the time of the commencement of the Constitution in 1950 but the question is whether all such powers and privileges were conferred on the Legislatures in India to the Constitution in 1950. The neat question is what were the powers and privileges of the different legislature at the time of the introduction of the 44th Amendment. Accordingly, if between 1950 and 1979, i.e., the introduction of the 44th Constitutional Amendment, the House of Commons had given up any of its powers and privileges, then, after the 44th Amendment coming into force, such privilege could no longer be claimed by the Indian Legislatures in view of such amendment even if it could be claimed on the date of the commencement of the Constitution. He has submitted that in between 1950 and 1979 the House of Commons itself had declared that only in the case of "substantial interference" with the functioning of the House, such power of expulsion can be exercised. Accordingly, even if it is assumed that the Indian Legislatures could, at the time of the commencement of the Constitution in 1950, claim any general power of expulsion, such power and privilege after the 44th Amendment, can now be claimed only in case of 'substantial interference' with the functioning of the Legislature. He has further submitted that if a law is enacted under the first part of clause (3) of Art. 194, then it would be subject to the provisions of the other parts of the Constitution; particularly Arts. 190 and 191 and specifically the fundamental rights guaranteed under Chapter III. Accordingly, the claim of privilege under the latter part of Clause (3) of Art. 194, which is merely transitory, in nature, must also be construed as subject to the same constitutional provisions. His main submission is that the privilege of determination of the composition of a legislature does not belong to the Indian Legislatures as it belonged to the House of Commons and the power of expulsion of a member comes within the scope of that privilege. His main submission is that the privilege of determination of the composition of a legislature does not belong to the Indian Legislatures as it belonged to the House of Commons and the power of expulsion of a member comes within the scope of that privilege. He has placed strong reliance in this connection to the majority decision of the Puniab and Haryana High Court in Hardwari Lal's case (ibid). In this connection he has submitted that decisions to the contrary in the M. P. case (ibid) and the Madras case (ibid) are not good law. He has also very strongly submitted that in any view of the matter, in the present case there has been a violation of the principles of natural justice inasmuch as no opportunity of being heard was given to the petitioners, who were not present in the House, before the penalty of expulsion was imposed on them for the alleged breach of privilege. He has submitted that any order/decision in violation of the principle of natural justice is illegal and a nullity; it also amounts to violation of the provisions of Art. 14 of the Constitution, which is a fundamental right. He has also submitted that accordingly the impugned action is wholly illegal and it is not protected by Article 212 inasmuch as it is not a question of mere irregularity. Accordingly, this Article is not a bar to the Court's power to grant relief by setting aside the orders/resolutions/notifications challenged in these proceedings. In any event, he has submitted that a power of expulsion for contempt of the House can be exercised, only if it was committed within the four walls of the House and not outside the House, even though it may be just outside the House and within the Assembly premises. In the present case, the incident is alleged to have taken place outside the House, that is, in front of the Speaker's chambers and in the corridor, which is outside the House. There is no power to take action for contempt in such a case. In this connection he has drawn our attention to a map outlining the position of the chamber of the House. There is no power to take action for contempt in such a case. In this connection he has drawn our attention to a map outlining the position of the chamber of the House. He has also drawn our attention to Clause 63 of the Rules and Procedures framed by the House under Art. 208 of the Constitution and submitted that it makes it clear that power of expulsion is not one of the powers which can be claimed by the Indian Legislature and particularly, the Bihar Assembly as there is no reference to 'expulsion' therein. Mr. Basudeva Prasad has also submitted that Annexure 2' which is the notification, relates to incident alleged to have taken place on 24th and 25th March, 1992, both. It also alleges that the act of contempt was committed both in the Assembly premises and the House itself. However, the proceedings of the House, as enclosed to the petition (being Annexure 1), and also annexed to the counter-affidavit filed on behalf of the respondents, do not in any event disclose any incident of 24th March, 1992. So far as 25.3.92 is concerned, admittedly none of the petitioners were present in the House and accordingly they could not have committed any act of contempt in the House itself as wrongly alleged. Accordingly, there has been non-application of mind. He has submitted that an order of expulsion can be challenged on the ground of malafide, whether malice in law or of fact. He has further drawn our attention to the expulsion motion in this case and has submitted that the 'motion' does not indicate the reasons. In any event, he has submitted that it is not a 'motion' within the meaning of the rules of procedure framed by the House. 3.5 Mr. Tara Kant Jha, learned counsel appearing on behalf of the petitioner in the second writ petition, has submitted as follows : (1) The power of expulsion is not one of powers or privileges conferred on the Indian Legislatures under the Constitution; (2) The power of expulsion relates to the power of composition or constitution of the legislature, which may be available to the House of Commons, but is not available to the Legislatures in India. In the case of House of Commons, they are paramount but not our legislatures; (3) The power to disqualify a member has been provided in Articles 190 and 191 of the Constitution and in the Representation of the People Act, 1951. Accordingly, this power cannot be exercised by the Legislatures in India in purported exercise of their power under the latter part of Art. 194 (3). A legislature in our country cannot have its own law of disqualification; (4) The order has been passed mala fide, both in fact and in law. In this context reliance is placed on paragraph 12 of the writ petition so far as malice in fact is concerned. (5) In any event, the petitioner, who is a member of the Assembly, has a right to be heard before he is expelled, which opportunity was not afforded to him in the present case before such power of expulsion was exercised against him. Such right to be heard cannot be dispensed with, while the power or privilege to expel a member was sought to be exercised in purported exercise of power conferred under the latter part of Art. 194 (3). No privilege can be claimed to expel a member without giving him an opportunity of being heard. Right to be heard is not a matter of procedure and Art. 212 is not attracted. (6) In any event, he has submitted that in view of the Rules framed under Art. 208 of the Constitution by the Bihar Legislature there is no power conferred to expel a member. In this connection he has drawn our attention to Rule 63. 4. Before dealing with the respective contentions I shall set out the relevant provisions of the Articles of the Constitution of India and the Representation of People Act, 1951. 4.1 Constitution of India. Article 12 - In this Part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of the India or under the control of the Government of India. Article 13 - (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. Article 13 - (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires:- (a) "law" includes any Ordinance, order, bye law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular area. (4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368. Article 14 - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 170 - (1) Subject to the provisions of Article 333, the Legislative Assembly of each State shall consist of not more than five hundred, and not less than sixty members chosen by direct election from territorial constituencies in the State. (2) For the purposes of clause (1), each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the State. (2) For the purposes of clause (1), each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the State. xx xx xx xx xx xx (3) Upon the completion of each census, the total number of seats in the Legislative Assembly of each State and division of each State into territorial constituencies shall be re-adjusted by such authority and in such manner as Parliament may by law determine: Provided that such re-adjustment shall not affect representation in the Legislative Assembly until the dissolution of the then existing Assembly: Provided further that such re-adjustment shall take effect from such date as the President may, by order, specify and until such re-adjustment takes effect, any election to the Legislative Assembly may be held on the basis of the territorial constituencies existing before such re-adjustment : Provided also that until the relevant figures for the first census taken after the year 2000 have been published, it shall not be necessary to re-adjust the total number of seats in the Legislative Assembly of each State and the division of such State into territorial constituencies under this clause. Article 171 - (1) The total number of members in the Legislative Council of a State having such a Council shall not exceed one third of the total number of members in the Legislative Assembly of that State: Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty. (2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be as provided in clause (3). (2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be as provided in clause (3). (3) Of the total Dumber of members of the Legislative Council of a State- (a) as nearly as may be, one-third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by Jaw specify: (b) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university; (c) as nearly as may be one-twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such education institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by parliament; (d) as nearly as may be, one-third shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly; (e) the remainder shall be nominated by the Governor in accordance with the provisions of clause (5). (4) The members to be elected under sub-clauses (a), (b) and (c) of clause (3) shall, be chosen in such territorial constituencies as may be prescribed by or under any law made by Parliament and the elections under the said sub-clauses and under sub-clause (d) of the said clause shall be held in accordance with the system of proportional representation by means of the single transferable vote. (5) The members to be nominated by the Governor under sub-clause (e) of clause (3) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:- Literature, science, art, co-operative movement and social service," Article 173—"A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he- (a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and, in the case of seat in the Legislative Council not less than thirty years of age; and (c) possesses such other qualifications as may be prescribed in that behalf by order any law made by parliament." Article 190 - "(1) No person shall be a member of both Houses of the Legislature of a State and provision shall be made by the legislature of the State by law for the vacation by a person who is chosen a member of both Houses of his seat in one House or the other. (2) No person shall be a member of the legislatures of two or more States specified in the First Schedule and if a person is chosen a member of the Legislatures of two or more such States then, at the expiration of such period as may be specified in Rules, made by the President that person's seat in the Legislatures of all such States shall become vacant unless he has previously resigned his seat in the Legislatures of all but one of the States. (3) If a member of a House of the Legislature of a State- (a) becomes subject to any of the disqualifications mentioned in Cl. (1) or Cl. (3) If a member of a House of the Legislature of a State- (a) becomes subject to any of the disqualifications mentioned in Cl. (1) or Cl. (2) of Article 191; or (b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant: Provided that in the case of any resignation referred to in sub-clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation; (4) If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant: Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued of is adjourned for more than four consecutive days." Article 191 - "(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State- (a) if he holds any office of profit under tile Government of India or tile Government of any State specified in the first Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (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, or is under any acknowledgement of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. Explanation.-For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. Explanation.-For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. (2) A person shall disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule." Article 192 - "(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in C.J. (1) of Art. 191, the question shall be referred for the decision of the Governor and his advice shall be final. (2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion." Article 194 - "(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. (2) No member of the Legislature of a State shall be liable to any proceeding in any Court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature 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 26 of the Constitution (Forty-forth Amendment) Act, 1978. (Before 44th Amendment - (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution). (4) The provisions of Cls. (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 the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature." Article 208 - "(1) A House of the Legislature of a State may make rules for regulating subject to the provisions of this Constitution, its procedure and the conduct of its business. (2) Until rules are made under Cl. (1), the rules of procedure and standing orders in force immediately before the commencement of the Constitution with respect to the Legislature for the corresponding Province shall have effect in relation to the Legislature of the State, subject to such modifications and adaptations as may be made therein by the Speaker of the Legislative Assembly, or the Chairman of the Legislative Council, as the case may be. (3) In a State having a Legislative Council the Governor, after consultation with, the Speaker of the Legislative Assembly and the Chairman of the, Legislative Council, may make rules as to the procedure with respect to communications between the two Houses." Article 212 - "(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers." 4.2 Representation of the People Act, 1951 Section 8. - Disqualification on conviction for certain offences. - Disqualification on conviction for certain offences. - (1) A person convicted of an offence punishable under section 153-A or section 171-E or section 171-F or sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code, or under the protection of Civil Rights Act, 1955 or under section 125 or section 135 or clause (a) of sub-section (2) of section 136 of this Act shall be disqualified for a period of six years from the date of such conviction. (2) A person convicted by a court in India for any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of five years since his release: Provided that a person convicted by a court in India for the contravention of any law providing for the prevention of hoarding or profiteering or of adulteration of food or drugs and sentenced to imprisonment for not less than six months shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of five pars since his release. (3) Notwithstanding anything in sub-section (1) and sub-section (2), a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court. Explanation.-In this section, (a) "law providing for the prevention of hoarding or profiteering" means any law, or any order, rule or notification having the force of law, providing for- (i) the regulation of production or manufacture of any essential commodity; (ii) the control of price at which any essential commodity may be bought or sold; (iii) the regulation of acquisition, possession, storage, transport, distribution, disposal, use or consumption of any essential commodity; (iv) the prohibition of the withholding from sale of any essential commodity ordinarily kept for sale, (b) "drug" has the meaning assigned to it in the Drugs and Cosmetics Act 1940; (c) "essential commodity" has the meaning assigned to it in the Essential Commodities Act, 1955; (d) "food" has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954." Section 8A Disqualification on ground of corrupt practices. - (1) The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted, as soon as may be, after such order takes effect, by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period: Provided that the period for which any person may be disqualified under this sub-section shall in no case exceed six years from the date on which the order made in relation to him under section 99 takes effect. (2) Any person who stands disqualified under section 8A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975, may if the period of such disqualification has not expired, submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period. (3) Before giving his decision on any question mentioned in sub-section (1) or on any petition submitted under sub-section (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion. 5. Preliminary Point raised by Mr. Basudeva Prasad. 5.1 I shall first take up the preliminary point raised by Mr. Basudeva Prasad that unless the respondents purge their contempt, they cannot be allowed to be heard in the writ petition itself. 5. Preliminary Point raised by Mr. Basudeva Prasad. 5.1 I shall first take up the preliminary point raised by Mr. Basudeva Prasad that unless the respondents purge their contempt, they cannot be allowed to be heard in the writ petition itself. 5.2 In the case of Hadklnson v. Hadkinson: (1952) 2 All E.R. 567, it has been observed as follows:- "I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to bear him until the impediment is removed or good reason is shown why it should not be removed." This case was also referred to by the Court of Appeal in the case of X Ltd. v. Morgan Grampian Ltd. (ibid). These two decisions make it clear that it is a matter of discretion of the Court and that it is not an absolute bar. These decisions also make it clear that such discretion is to be exercised, if the disobedience to the order of the Court is of a nature that impedes the course of justice, as long as such disobedience is continued. 5.3 In the case of S.S. Roy v. Damodar Valley Corporation: A.I.R. 1974 Calcutta 69, it was argued that contempt of Court is a serious misconduct and the contemner, alleged to have contumaciously violated an order of the Court, should not be allowed to proceed any further in a case, as otherwise it would only put a premium on such blatant violations and lower the dignity of the Court. After referring to various decisions including Hadkinson v. Hadkinson it was observed as follows: "The point raised is doubtedly of an old vintage, coming down the corridor of time and going back many centuries in our law. It is undoubtedly true that at one stage there was some cloud raised over the point at issue, but by and large the same has been removed by the principles laid down by the various authorities and the imprimatur of judicial decisions. It is undoubtedly true that at one stage there was some cloud raised over the point at issue, but by and large the same has been removed by the principles laid down by the various authorities and the imprimatur of judicial decisions. It is pertinent therefore to refer to the backdrop against which this principle arises. That a party in contempt will not be heard was never a rule of the common law, but as was observed by Lord Justice Denning, "a rule of the canon law, which was adopted by the ecclesiastical Court and the chancery Courts". The history of the rule in Chancery, as it appears from Beams' orders in Chancery page 35, shows that it originated in the 78th Ordinance of Lord Bacon of 1618. It laid down that "they that are in contempt are not to be here, neither in that suit nor any other except the Court of special grace suspend the contempt". It also appears from Gilbert on Forum Romanum 102 that Lord Chief Baron Gilbert laid it down as a general rule that "'the contemner, who is in contempt, is never to be heard by motion or otherwise till he has cleared his contempt and paid the costs". The ordinance of Lord Becon though used for enforcing orders in Chancery was never applied unless the contempt had been established by the issue of a writ of attachment or an order for commital. It is only then that the party became a party in contempt and the Court would not hear him. The said ordinance however and the limitations referred to above were found to be capable of working great injustice and as was observed by Lord Justice Denning in (1952) 2 All ER 567 "in the course of practice, it came to be much restricted in scope. It was confined to cases where a party in contempt i.e. a party against whom a writ of attachment had been issued or an order committal had been made, came forward voluntarily and asked for an indulgence in the same suit. It was no indulgence for a plaintiff to bring his cause to a hearing or for a defendant to defend himself. Even if he was in contempt therefore, he was allowed to be heard unless an order had been made staying the proceedings. It was no indulgence for a plaintiff to bring his cause to a hearing or for a defendant to defend himself. Even if he was in contempt therefore, he was allowed to be heard unless an order had been made staying the proceedings. "It is pertinent in this context to refer to Daniel's "Chancery Practice" (7th En. Vol. 1) page 725 that "a party in contempt for non-obedience to an order in one cause will not be thereby prevented from making an application to the Court in another cause relating to a distinct matter, although the party to such other cause may be the same." In the case of Taylor v. Taylor reported in (1849) decided by 1 Mac & G. 397: 41 ER 1318 it was observed that "the circumstance of the plaintiff being out of the jurisdiction and in contempt for non-compliance with the decree made, did not prevent his filing the bill in question". The observations of Lord Cottenham L.C. were approved of again and again in a series of cases. It has been stated in Halsbury's "Laws of England" (3rd. Edn.) Vol. 8, Section 4, Paragraph 73 that "probably the true rule is that the party in contempt will not be heard only on those occasions when his contempt impedes the course of justice and there is no other effective way of endorsing the obedience". Lord Justice Denning also observed ultimately; after discussing the history of the principle in (1952) 2 All ER 567 already referred to above that- "applying this principle, I am of opinion that the fact that a party to a cause has disobeyed an order of the Court is not of itself a bar to his being heard but if his disobedience is such that so long as it continues, it impedes the course of justice for the cause, by making it more difficult for the Court to ascertain the truth or to enforce the orders which it may make then the Court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed." I respectfully agree with the said view and hold that the proposition made by Mrs. Bhattacharya stands qualified as above." (Para 9) "It is quite true that contempt of Court is not an ordinary proceeding and the question involved is a serious one. Bhattacharya stands qualified as above." (Para 9) "It is quite true that contempt of Court is not an ordinary proceeding and the question involved is a serious one. It is true again, as was observed in the case of Dhrubadeo Tewari v. Thakilal Ganguly reported in (1971) 75 Cal WN 856 that. "the halo of solemnity surrounding the Courts of justice since the dawn of civilisation should not be allowed to be disturbed by a blatant interference with its orders, defiling thereby the sacred temples where justice is dispensed by the high priests, the Judges" But the proposition propounded by Mrs. Bhattacharyya is too wide and on ultimate analysis I hold that the same is not in any way an absolute proposition of law but only a qualified one, being subject to the various exceptions referred to above. Apart from the point of law, the basis of facts cannot also be overlooked. Only an application has been filed for contempt before the learned District Judge, Alipore Dist. 24 Perganas, being Judicial Misc. Cases No. 36 of 1973 and as yet, as the learned District Judge himself, found, an enquiry is yet to be made on the merits of the said application as to whether on the establishment of prima facie case a reference would be made to the High Court recommending appropriate steps. The contempt therefore has not been prima facie established by the issue of a writ of attachment or an order for committal. The prayer for stay made on behalf of the Plaintiff-Petitioner therefore is premature and the first dimension of Mrs. Bhattacharyya's contention accordingly fails." (Para 10) 5.4.1. In the case of M. G. Gupta v. Agra University: AIR 1974 Allahabad 39, after consideration of various decisions including the case of Hadkinson v. Hadkison (ibid) it was observed as follows: "Under the Contempt of Courts Act, there is no provision for striking off the defence of a party in contempt. There is, however, a well established principle that a party in contempt should not be heard in the same cause until that party has purged the contempt. This rule has been followed by Courts in England as well as in India, but the rule is not an absolute one. The striking out of defence and denial of hearing to a party is a serious matter which entails serious consequences to a litigant. This rule has been followed by Courts in England as well as in India, but the rule is not an absolute one. The striking out of defence and denial of hearing to a party is a serious matter which entails serious consequences to a litigant. The Courts have, therefore, applied this rule rarely against a party in contempt. The extreme penalty of striking out of defence or denial of hearing is applied only in those cases in which a party is found in contempt for disobeying the orders of the Court as a result of which the course of justice is impeded. The Court may, in its discretion, refuse to allow the party in contempt to take active proceedings in the same suit or a cause until the impediment caused by the contemptuous act is removed. This rule is based on the sound principle that no party to a cause or proceeding should be allowed to flout the orders of the Court or impede the course of justice in order to take advantage of his misdeeds before the Court of law. In England, this rule was applied for the first time by the ecclesiastical courts. Subsequently this rule was made applicable by other Courts also. (Para 6)" 5.4.2. After referring to various decisions in the case it was observed as follows: "The view taken in the above earlier English cases makes it clear that the principle adopted was that the Court would not hear a party in contempt coming himself to the Court to take advantage of the proceedings, yet such a party was entitled to appear and resist any proceeding against him. It has, however, been stressed by the English Judges that it would be most unjust extent ion of the rule against the party in contempt to take away an estate without giving him any opportunity of hearing. (Para 8)" 5.4.3. Reference was also made in this connection to Halsbury's Laws of England, Simond's edition, (Para 73) and it was observed as follows:- "The above passage would make it clear that there is no absolute rule that the party in contempt shall not be heard. (Para 8)" 5.4.3. Reference was also made in this connection to Halsbury's Laws of England, Simond's edition, (Para 73) and it was observed as follows:- "The above passage would make it clear that there is no absolute rule that the party in contempt shall not be heard. The correct position which has emerged from the various decisions appears to be that generally a party in contempt shall not be heard only in those cases where his contempt impedes the course of justice and there is no other way of enforcing the orders of the Court." 5.4.4. Accordingly, the learned Judge held as follows: "Applying this principle I am of opinion that the fact that a party to a cause has disobeyed an order of the Court is not of itself a bar to his being heard, but his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the Court to ascertain the truth or to enforce the orders which it may make, then the Court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed. (Para 9)" 5.4.5. It was also observed by the learned Judge as follows:- "In my opinion, however, the true position which emerges from the cases discussed and from the celebrated opinion of Lord Denning is that unless the disobedience of a party impedes the course of justice in the case, making it difficult for the Court to ascertain the truth or to enforce its orders it would not be proper exercise of discretion to refuse the party in contempt any hearing. In the present case, admittedly no order or the Court was disobeyed by the respondents, nor there was the question of enforcement of any of the Court's orders. There is further no difficulty for this Court to ascertain the truth or to decide the questions involved in the writ petition. The respondents took an improper step in considering the questions on merit which were subjudice before this Court and thus they were held guilty of contempt of Court. The case of Hadkinson v. Hadkinson, in my opinion, does not lend any support to the petitioner's contention. (Para 10)" 5.4.6. The respondents took an improper step in considering the questions on merit which were subjudice before this Court and thus they were held guilty of contempt of Court. The case of Hadkinson v. Hadkinson, in my opinion, does not lend any support to the petitioner's contention. (Para 10)" 5.4.6. Ultimately it was observed as follows: "The above authorities make it amply clear that the drastic step of striking out the defence, and denial of hearing to a party in contempt is an extreme penalty which is enforced only in those cases where an act of a party in contempt impedes the course of justice or that justice in the cause cannot be done without compliance of the Court's order, but the party in contempt is entitled to challenge the validity of the order and the jurisdiction of the Court passing the order itself. The party in contempt may not be entitled to take advantage of its own action in the same cause without purging the contempt but such a party is entitled to defend itself. There is considerable difference in the right of a party in contempt for bringing an action into Court of law, and his right to defend himself before the Court. In former case, the party in contempt is not entitled to bring an action before a Court of law or to take advantage of its contemptuous act in the same cause or proceeding but in the latter case such a party is entitled to defend itself and to question the jurisdiction of the Court passing the order in respect of which contempt may have been committed. These are general principles, but it is difficult to lay down any exhaustive principles as the situation may vary from case to case. The question has to be considered by the Court concerned on the facts of each case. The Court may, in its discretion, not entail the extreme penalty of denial of right of hearing or striking out of defence of the party in contempt in the particular circumstances of a case. The principles, however, are now well settled for the exercise of discretion by the Courts. In the present case, as observed earlier, I do not find any justification for striking out the defence of the respondents. The principles, however, are now well settled for the exercise of discretion by the Courts. In the present case, as observed earlier, I do not find any justification for striking out the defence of the respondents. The petitioner has failed to show that the contemptuous act of the respondents has impeded the course of justice that it is not possible for this Court to ascertain the truth or to determine the issues involved in the writ petition. I am, therefore, not prepared to accept the petitioner's .contention to deny opportunity of hearing to the respondents or to strike out their defence in the writ petition." (Para 12) 5.5. The Court has also the power, while punishing the guilty party for contempt, to direct the contemner to purge the contempt. Reference may be made in this connection to Noorali Babul v. K. M. M. Shetty reported in A.I.R. 1990 S.C. 464. 5.6. However, it may be pointed out that the fact that an order was improperly procured is no justification for not complying with the order of the Court, inasmuch as the validity of the order can only be challenged by application to Court. Reference may be made in this connection to Hari Kissan Khettry v. Farukh Sover, reported in 56 C.W.N. 983. 5.7. Accordingly, I am unable to accept this contention of Mr. Basudeva Prasad, mainly for two reasons. Firstly, I have not yet found the respondents guilty for any contempt. An application has been made for the alleged violation of the Court's order, whether the respondents-opposite parties are guilty of contempt or not, has yet to be decided. A contempt application has only been filed. Notice to show cause has not yet been issued. Further in the present case, serious and important questions of law of far reaching consequences are involved. This involves the question relating to the scope and extent of the powers and privileges of the Legislature and the scope and extent of the powers of the writ court relating to the same. Accordingly, I do not think it fit and proper to exercise our discretion by shutting out the respondents from making their submissions particularly when they have chosen to appear before the Court and make sub• missions on the merits also, though not submitting to the jurisdiction of the Court. 5.8. Accordingly, I do not think it fit and proper to exercise our discretion by shutting out the respondents from making their submissions particularly when they have chosen to appear before the Court and make sub• missions on the merits also, though not submitting to the jurisdiction of the Court. 5.8. Accordingly, I reject this preliminary objection raised on behalf of the petitioners and proceed to deal with the various contentions raised before us on merits. 6. The questions which arise for determination in this case are as follows:- 1. Whether a Writ petition is maintainable challenging the decision/resolution of a Legislature purported to be made in exercise of its power, privileges and immunities claimed by the same? 2. (a) Whether the law made under the first part of clause (3) of Article 194 is subject to the provisions of the Constitution including Part III thereof? (b) Whether the latter part of clause (3) of Article 194 is subject to the provisions of the Constitution, including Part III thereof? 3. (a) Whether, at the time of the commencement of the Constitution of India, the House of Commons had the power to take action against its members for breach of its privilege, including the exercise of the power of expulsion? (b) If so, whether the exercise of such power of expulsion, arose solely and exclusively out of the power of the House of Commons regarding composition or constitution of the House? 4. (a) If the answer to 3 (a) is in the affirmative, even so, whether such power or privilege was conferred on Indian Legislatures at the time of commencement of the Constitution under the latter part of Clause (3) of Article 1941. This is irrespective of the question as to whether there is any provision in the Constitution which negatives this power or which prevents this power to be conferred on any Legislature in India. (b) If the answer to (a) above is in the affirmative, whether there is any provision in the Constitution, particularly Art. 170, 171, 173, 190 and 191 thereof, which negatives such power and privilege including the power of expulsion of one of its members, or with which such power or privilege can be said to be inconsistent ? (b) If the answer to (a) above is in the affirmative, whether there is any provision in the Constitution, particularly Art. 170, 171, 173, 190 and 191 thereof, which negatives such power and privilege including the power of expulsion of one of its members, or with which such power or privilege can be said to be inconsistent ? (c) In any event, whether in view of the Rule 63 of the Rules of Procedure framed under Article 206 of the Constitution by the Bihar Legislative Assembly, it can be said that, at the relevant times, at least the Bihar Legislative Assembly had no power to impose any penalty of punishment other than those contained in Rule 63 and, accordingly, no such punishment of expulsion could be imposed on the petitioners in the facts and circumstances of this case? 5. (a) If the answer to 3(a) above is in the affirmative, even so whether such power was given up or modified or curtailed substantially by the House of Commons after the commencement of the Constitution of India and before the introduction of the 44th Constitutional Amendment which came into effect on 20.6.79 ? (b) Did the 44th Amendment of the Constitution bring about any substantial change in the scope and extent of the powers and privileges conferred on the Legislatures in India by the latter part of Clause (2) of Article 194? In other words, can it be said that the power of Legislature of a State since the introduction of 44th Amendment, was not the same as the power of Legislature of the State at the time of commencement of the Constitution? (c) If any power or privilege of the House of Commons existing at the time of the commencement of the Constitution was given up by that House after the commencement of the Constitution and before the introduction of the 44th Constitutional Amendment, whether it can be said that the power and privilege of the Indian Legislature conferred by the latter part of Clause (3) of Article 194 also stood automatically altered or modified to that extent in view of the same ? 6. 6. Whether any conduct on the part of any members towards the Speaker of the House, which would otherwise amount to breach of privilege, if committed within the four walls of the House, can be treated as a breach of privilege, if it is committed in any other part of the Assembly premises, including the corridor, leading to the House, while the Speaker or the Presiding Officer was proceeding towards the House from his Chambers situate in the premises of the Legislature, to conduct its business? 7(a) Whether any resolution/decision of the Legislature, imposing power of expulsion on the ground of breach of privilege, can be challenged on the ground of mala fide whether malice in law or in fact ? (b) If the answer to (a) above is in the affirmative, then whether in the facts and circumstances of this case the impugned resolution/notification can be held to be bad on the ground of mala fide ? 8(a) Whether the principle of natural justice or "fair play" is applicable to any decision/resolution of the Legislature of a State, in exercise of its power of imposement of punishment particularly the power of expulsion of its members, for the breach of its privileges ? (b) If the answer to (a) above is in the affirmative, then whether the impugned resolutions/notifications can be said to be in violation of the said principles ? (c) Even if the answers to (a) and (b) above are in the affirmative, whether it can be said that even in that event the impugned resolution/decision of the Legislature cannot be declared as illegal or invalid, particularly in view of the provisions of Article 212 of the Constitution ? 9(a) Whether it is open to the Court to declare any decision or resolution of the Legislature to be illegal and inoperative if there is any breach or violation of the Rules of Procedure framed by the Bihar Assembly under Article 208 of the Constitution of India? (b) Whether in the facts and circumstances of the case there has been any violation of such Rules of Procedure? 6.7. Cases cited. - Before I consider the respective submissions made on behalf of the parties before us, I shall refer to the brief facts of the decisions relied upon before us on behalf of the respective parties in support of their respective contentions. 6.7. Cases cited. - Before I consider the respective submissions made on behalf of the parties before us, I shall refer to the brief facts of the decisions relied upon before us on behalf of the respective parties in support of their respective contentions. I shall deal with the relevant passages of the same in details while dealing with the respective contentions raised. 7.1.1. In the case of M.S.M. Sharma v. Sri Krishna Sinha and others reported in A.I.R. 1959 S.C. 395, a petition under Art. 32 of the Constitution was filed before the Supreme Court under the following circumstances. The petitioner, a citizen of India and by profession a journalist was the editor of one of a well known daily newspaper having a large circulation in Patna and other places in Bihar. In his speech made in the Bihar Legislative Assembly (hereinafter referred to as the Assembly) on 30th May, 1957 a member of the Assembly made various comments and criticisms against the Chief Minister regarding conducting the administration of the State. The Speaker thereafter stated that certain statements be expunged from the proceedings. In the issue of 31st May, 1957, the said newspaper published a report of the speech made by the particular member of the Assembly in the House. The admitted position was that certain reference was made in respect of a gentleman which had been directed by the Speaker to be expunged from the proceedings. On 10.6.1957 one member of the Assembly gave a notice that he wanted to raise a question of privilege of the House. After the Speaker had declared that the mover had received permission of the House to move the motion and the member concerned moved his resolution that the matter be referred to the Privilege Committee of the House, the Speaker put the question to the House and declared the resolution carried. The matter was referred to the Committee of Privilege. After the Speaker had declared that the mover had received permission of the House to move the motion and the member concerned moved his resolution that the matter be referred to the Privilege Committee of the House, the Speaker put the question to the House and declared the resolution carried. The matter was referred to the Committee of Privilege. On 10.8.1958 the Committee of Privileges passed a resolution calling upon the petitioner, who was the Editor, and one Awadhesh Kumar Tiwary, who was the printer and publisher of the said newspaper to show cause why appropriate action be not taken against them by reason of commission of breach of privilege in respect of the Speaker of the Assembly and the Assembly itself by publishing a "perverted and unfaithful" report of the proceedings of the Assembly, the expunged portion of whose speech were also published in derogation to the orders of the Speaker and they were directed to attend the meeting of the Committee. On 18.8.58 the petitioner was served with a notice dated 14.8.58 issued by the Secretary to the Bihar Legislative Assembly calling upon him to show cause why appropriate action should not be recommended against him for breach of privilege of the Speaker and the Assembly in respect of the offending publication. At this the petitioner moved the High Court by a petition under Article 226 of the Constitution for issuance of an appropriate writ order or direction, restraining and prohibiting the respondents from proceeding further with the enquiry referred to above. Thereafter the petitioner withdraw that petition on 1.9.1958 "with a view to avail the fundamental rights granted to him under Art. 32 of the Constitution". Thereafter this petition under Art. 32 of the Constitution was filed before the Supreme Court on 5.9.58 wherein it was contended on behalf of the petitioner that the said notice and the proposed action by the Committee were in violation of the petitioner's fundamental right to freedom of speech and expression under Art. 19 (1) (a) and to the protection of his personal liberty under Art. 21. 7.1.2. 7.1.2. The Supreme Court formulated the two principal points arising on the pleadings, which were canvassed before the Court, as follows:- (i) Has the House of the Legislature in India the privileges under Art. 194 (3) of the Constitution to prohibit entirely the publication of the publicity seen and heard proceedings that took place in the House or even to prohibit the publication of that part of the proceedings which had been directed to be expunged? (ii) Does the privilege of the House under Art. 194 (3) prevail over the fundamental right of the petitioner under Art. 19 (1) (a)? (Para 15) 7.1.3. The first question was answered to the effect 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 take place within the House. A fortiori the House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate or garbled version of such debates or proceedings. The latter part of Art. 194 (3) confers all these powers, privileges and immunities on the House of the Legislature of the States, as Art. 105 (3) does on the House of Parliament. The second question was answered in the affirmative and it was held that such powers, privileges and immunities were not made subject to the fundamental right conferred by Article 19(1). 7.2.1. The next decision is the case of M.S.M. Sharma v. Dr. Shree Krishna Sinha and others: A.I.R. 1960 S.C. 1186. It was a writ petition arising out of the first M.S.M. Sharma's case, referred to above. In each of these petitions the petitioner, who was a journalist by profession and was functioning as the Editor of "the Searchlight", an English daily newspaper published from Patna in the State of Bihar, impugned the validity of the proceedings before the Committee of Privileges and prayed for restraining the opposite party, namely, the Chief Minister of Bihar as Chairman of the Committee of Privileges, Bihar Legislative Assembly, Committee of Privileges and the Secretary of the Bihar Legislative Assembly, from proceeding against the petitioner for the publication in its issue dated May 31, 1957, of the Searchlight an account of the debate in the Legislative Assembly, Bihar, on May 30, 1957. The facts of this case have been stated in great details in the first M.S.M. Sharma's case. After the aforesaid writ petition was ended, the petitioner again moved the Supreme Court under Article 32 of the Constitution. On 5th January, 1959 the petitioner received a notice that the case of breach of privilege against him would be considered by the Committee of Privileges of the Assembly on 3rd February, 1959. That hearing was postponed from date to date, until in August, 1959 the petitioner filed his petition under Article 32 of the Constitution. The prayer made in the petition was that the proceedings of the Committee of Privileges at its meeting held on 10th August, 1958, be quashed and the respondents be restrained by a writ in the nature of a writ of prohibition from proceeding against the petitioner in respect of publication aforesaid of the proceedings of the Legislative Assembly of 30th May, 1957. After the petitioner had filed his writ petition the Bihar Legislative Assembly reconstituted the Committee of Privileges of the Assembly, and on that very date a member of the Legislative Assembly sought to move a motion in that Assembly for revival and reference of the matter of the alleged breach of privilege by the petitioner. Some members of the Bihar Legislative Assembly objected to the motion being moved and the Speaker of the Assembly defined giving his ruling on that objection; At the instance of some of the members of the Assembly, the Speaker of the Assembly referred two questions to the Advocate General of Bihar for his opinion on the floor of the House on 20th October, 1959, namely, (1) whether it was open to the Assembly to debate on an issue which might be subjudice in view of the writ petition aforesaid filed by the petitioner in the Supreme Court under Art. 32; and (2) whether the matter which was dead by reason of prorogation of the House several times could be legally revived and restored. On 20th October, 1959, the Advocate General of Bihar attended the House and gave his opinion, which it is not relevant to state here. The writ petition was heard in part and allowed to be withdrawn, as indicated above, on 12th November, 1959. On 24th November, 1959, the petitioner received a fresh notice from the Secretary of the Legislative Assembly, opposite party no. The writ petition was heard in part and allowed to be withdrawn, as indicated above, on 12th November, 1959. On 24th November, 1959, the petitioner received a fresh notice from the Secretary of the Legislative Assembly, opposite party no. 3, calling upon the petitioner to show cause on or before 1st December, 1959, why appropriate action should not be recommended against him for a breach of the privilege of the Speaker and the Assembly. The petitioner again instituted proceedings under Art. 32 of the Constitution complaining that the motion adopted by the Committee of Privileges of the Bihar Legislative Assembly at its meeting held on 23rd November, 1959, amounted to an abridgement of his fundamental right of speech and expression guaranteed under Art. 19 (1) (a) of the Constitution and was an "illegal and mala fide threat to the petitioner's personal liberty in violation of Art. 21 of the Constitution of India and that the Committee of privileges, respondent no. 2 had no jurisdiction or authority to proceed against the petitioner as threatened by the notice aforesaid". 7.6.2.2. It was pointed out by the Supreme Court that the grounds of attack raised substantially the same questions that were agitated on the previous occasions in that Court. It was observed: "In our opinion, therefore, the questions determined by the previous decision of this Court cannot be reopened in the present case and must govern the rights and obligations of the parties which, as indicated above, are substantially the same. It is manifest, therefore, that the petitioner has no fundamental right which is being threatened to be infringed by the proceedings taken by the opposite party." (Para 9) 76.2.3. The next point which was contended was that the procedure adopted Inside the House of the Legislature was not regular and not strictly in accordance with law. The Supreme Court answered this question firstly on the point that according to the previous decision of that Court, the petitioner had not the fundamental right claimed by him and secondly that the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed and in this context reference was made to Article 212 of the Constitution. Some other points were also raised regarding prorogation which was also answered in the negative. 7.3.1. Some other points were also raised regarding prorogation which was also answered in the negative. 7.3.1. In respect of the preliminary point raised by Mr. Shanti Bhushan regarding maintainability of the writ petition I have already pointed out that this point is not merely a preliminary point but it also involves the merits of the petitions regarding the scope and the extent of the jurisdiction of the Legislature of a State regarding privilege and the jurisdiction of the writ Court. Twenty-seven years back a serious situation arose out of the proceedings of the Utter Pradesh Legislature and the judiciary was made involved wherein it was considered necessary by the Legislature even to go to the extent of proceeding in contempt against two learned Judges of the Allahabad High Court, who had entertained an application relating to a general warrant issued by the High Court and the matter was referred to the Supreme Court by the President of India. In the Presidential Reference case reported in A.I.R. 1965 S.C. 745 all these questions involved were thoroughly examined and I may point out with great respect that the judgment in that case is unique in the judicial history of the Supreme Court. Some question was sought to be raised in this case and in the other case also as to the binding nature of the said judgment, that is, whether it is a law laid down which is binding on all Courts or whether it is merely an expression of views which is not binding on Courts. I have no intention to go into the said controversy for the simple reason that whether such decision has laid down any law within the meaning of Art. 141 of the Constitution or not, such a comprehensive and well considered decision by the apex Court of the land cannot be blushed aside by any High Court on the pretext that its opinion is not binding. Whether it has laid down a law which is binding on the High Courts or not, I intend to approach the same on the basis that the enunciation of law by the Supreme Court therein is binding on me as the Supreme Court has not in any other judgment delivered subsequently, held that the propositions of law laid down therein are not good law. I intend to proceed accordingly. 7.3.2. I intend to proceed accordingly. 7.3.2. The facts of this case are now well known and it shows to what extent confrontation between the legislature and judiciary can take place. 76.3.3. "It appears that on the 14th March, 1964, the Speaker of the Legislative Assembly of Uttar Pradesh administered, in the name of and under the orders of the said Legislative Assembly (hereinafter referred to as "the House"), a reprimand to Keshav Singh, who is a resident of Gorakhpur, for having committed contempt of the House and also for having committed a breach of the privileges of Narsingh Narain Pandey, a Member of the House. The contempt and the breach of privileges in question arose because of a pamphlet which was printed and published and which bore the signature of Keshav Singh along with the signatures of other persons. In pursuance of the decision taken by the House later on the same day, the Speaker directed the said Keshav Singh be committed to prison for committing another contempt of the House by his conduct in the House when he was summoned to receive the aforesaid reprimand and for writing a disrespectful letter to the Speaker of the House earlier. According to this order, a warrant was issued over the signature of the Speaker of the House. Mr. Verma, directing that Keshav Singh be detained in the District Jail, Lucknow for a period of seven days, and in execution of the warrant Keshav Singh was detained in the said Jail. ** ** ** 76.3.4. "On the 19th Mach, 1964, Mr. Solomon, an Advocate practising before the Lucknow Bench of the Allababad High Court, presented a petition to the High Court on behalf of Keshav Singh under Section 491 of the Code of Criminal Procedure, 1898, as well as under Article 226 of the Constitution. To this petition were impleaded the Speaker of the House, the Chief Minister of Uttar Pradesh and the Superintendent of the District Jail, Lucknow where Keshav Singh was serving the sentence of imprisonment imposed on him by the House, as respondents 1 to 4 respectively. The petition thus presented on behalf of Keshav Singh alleged that his detention in jail was illegal on several grounds. According to the petition, Keshav Singh had been ordered to be imprisoned after the reprimand had been administered to him, and that made the order of imprisonment illegal and without authority. The petition thus presented on behalf of Keshav Singh alleged that his detention in jail was illegal on several grounds. According to the petition, Keshav Singh had been ordered to be imprisoned after the reprimand had been administered to him, and that made the order of imprisonment illegal and without authority. The petition further alleged that Keshav Singh had not been given an opportunity to defend himself and that his detention was mala fide and was against the principles of natural justice. It was also his case that respondents 1 to 3 had no authority to send him to the District Jail, Lucknow and that made his detention in jail illegal. 7.3.5. "After the said petition was filed before the Lucknow Bench of the Allahabad High Court, the learned Advocates for both the parties appeared before Beg and Sahgal JJ. at 2 P. M. and agreed that the petition should be taken at 3 P. M. the same day. Mr. Solomon represented Keshav Singh and Mr. K. N. Kapur, Assistant Government Advocate, appeared for all the respondents. Accordingly, the petition was taken before the Court at 3 P. M. On this occasion, Me. Solomon appeared for the petitioner but Mr. Kapur did not appear in Court. The Court then passed an order that the applicant should be released on bail on furnishing two sureties in a sum of Rs. 1,000/- each and a personal bond in the like amount to the satisfaction of the District Magistrate, Lucknow. The Deputy Registrar of the Court was asked to take necessary action in connection with the order. The Court also directed that the applicant shall remain present in Court at every hearing of the case in future. Thus, the petition was admitted and notice was ordered to be issued to the respondents with the additional direction that the case should be set down for hearing as early as possible. This happened on the 19th March at 3 p. m. 7.3.6. "On the 20th March, 1964, Mr. Shri Rama, the Government Advocate, wrote to Mr. Nigam, Secretary to Government, U. P., Judicial Department, Lucknow giving him information about the order passed by the High Court on Keshav Singh's application. In this communication, Me. This happened on the 19th March at 3 p. m. 7.3.6. "On the 20th March, 1964, Mr. Shri Rama, the Government Advocate, wrote to Mr. Nigam, Secretary to Government, U. P., Judicial Department, Lucknow giving him information about the order passed by the High Court on Keshav Singh's application. In this communication, Me. Shri Rama has slated that after the matter was mentioned to the Court at 2 P. M., it was adjourned to 3 P.M. at the request of the parties; soon thereafter Mr. Kapur contacted Mr. Nigam on the phone, but while the conversation was going on, the Court took up the matter at 3 P.M. and passed the order directing the release of Keshav Singh on terms and conditions which have already been mentioned. Mr. Shri Rama sent to Mr. Nigam three copies of the application made by Keshav Singh and suggested that arrangement, should be made for making an appropriate affidavit of the persons concerned. He also told Mr. Nigam that the application was likely to be listed for hearing at a very early date. 7.3.7. "Instead of complying with the request made by the Government Advocate and instructing him to file a return in the application made by Keshav Singh, the, House proceeded to take action against the two learned Judges who passed the order on Keshav Singh's application, as well as Keshav Singh and his Advocate, on the 21st March, 1964. It appears that two Members of the House brought to the notice of the Speaker of the House on the 20th March what had happened before the Court in regard to the application made by Keshav Singh. Taking notice of the order passed by the High Court on Keshav Singh's petition, the House proceeded to pass a resolution on the 21st March, 1964. This resolution said that the House is of the definite view that M/s G. D. Sahgal, N. U. Beg, Keshav Singh and B. Solomon have committed contempt of the House. Therefore, it is ordered that Keshav Singh should immediately be taken into custody and kept confined in the District Jail, Lucknow for the remaining term of his imprisonment and M/s N. U. Beg, G. D. Sahgal and B. Solomon should be brought in custody before the House. Therefore, it is ordered that Keshav Singh should immediately be taken into custody and kept confined in the District Jail, Lucknow for the remaining term of his imprisonment and M/s N. U. Beg, G. D. Sahgal and B. Solomon should be brought in custody before the House. The resolution further added that after Keshav Singh has completed the term of his imprisonment, he should be brought before the House for having again committed contempt of the House on March 19, 1964. 7.3.8. The two learned Judges heard about this resolution on the Radio in the evening of the 21st March and read about it in the morning edition of the Northern India Patrika published on the 22nd March, 1964. That is why they rushed to the Allahabad High Court with separate petitions under Art. 226 of the Constitution. These petitions alleged that the impugned resolution passed by the House was wholly unconstitutional and violated the provisions of Art. 211 of the Constitution. According to the petitions, the application made by Keshav Singh under Art. 226 was competent and in making an order releasing Keshav Singh, the Judges were exercising their jurisdiction and authority as Judges of the High Court under Art. 226. Their contention was that the resolution passed by the House amounted to contempt of Court, and since it was wholly without jurisdiction, it should be set aside and by an interim order its implementation should by stayed. To these petitions were impleaded as respondents Mr. Verma, the Speaker, Vidhan Sabha, Lucknow, the State of Uttar Pradesh and the Marshal, Vidhan Sabha. These petitions were filed on 23rd March, 1964. 7.3.9. 'Apprehending that these developments had given rise to a very serious problem, a Full Bench of the Allahabad High Court consisting of 28 Judges of the said High Court took up on the same day the petitions presented before them by their two colleagues at Lucknow, directed that the said petitions should be admitted and ordered the issue of notices against the respondents restraining the Speaker from issuing the warrant in pursuance of the direction of the House given to him on the 21st March, 1964, and from securing execution of the warrant if already issued, and restraining the Government of U. P. and the Marshal of the House from executing the said warrant. 7.3.10. Meanwhile, on the 25th March, 1964, Mr. 7.3.10. Meanwhile, on the 25th March, 1964, Mr. Solomon, the learned Advocate of Keshav Singh, presented a similar petition to the High Court under Art. 226. He prayed for a writ of mandamus on the same lines as the petitions filed by the two learned Judges and he urged that suitable order should be passed against the House because it had committed contempt of Court. To his petition Mr. Solomon had impleaded seven respondents; they are: the Speaker of the House; Mr. Verma; the Legislative Assembly, U. P.; the Marshal of the U. P. Legislative Assembly; Mr. Saran and Mr. Ahmad. Members of the Legislative Assembly, U. P., who brought to the notice of the House the orders passed by the two learned Judges of the High Court; and the State of Uttar Pradesh. 7.3.11. This application again was heard by a Full Bench of 28 Judges of the Allahabad High Court on the 25th March, and after admitting the petition, an interim order was passed prohibiting the implementation of the resolution the validity of which was challenged by the petitioner. At the preliminary hearing of this petition, notice had been served on the Senior Standing Counsel who was present in Court. He stated to the Court that he had no instructions at that stage to oppose the application. That is why the Court issued notice of the application and passed what it though would be appropriate order. (Para 10)" 7.3.12. "On the same day, the House passed a clarificatory resolution. This resolution began with the statement that a misgiving was being expressed with regard to the motion passed by the House in that it could be construed as depriving the persons concerned of an opportunity of explanation, and it added that it was never the intention of the House that a charge against a High Court Judge for committing breach of privilege or contempt of the House, should be disposed of in a manner different from that governing breach of privilege or contempt committed by any other person. The House, therefore, resolved that the question of contempt may be decided after giving an opportunity of explanation to the persons named in the original resolution of the 20th March, 1964 according to rules. 7.3.13. As a result of this resolution the warrants issued for the arrest of the two learned Judges and Mr. The House, therefore, resolved that the question of contempt may be decided after giving an opportunity of explanation to the persons named in the original resolution of the 20th March, 1964 according to rules. 7.3.13. As a result of this resolution the warrants issued for the arrest of the two learned Judges and Mr. Solomon were withdrawn, with the result that the said two learned Judges and Mr. Solomon were placed under an obligation to appear before the Home and offer their explanations as to why the House should not proceed against them for their alleged contempt of the House. 7.3.14. "When the incidents which happened in such quick succession from the 19th March, to the 25th March, 1964, had reached this stage, the President decided to exercise his power to make a reference to this Court under Art. 143 (1) of the Constitution on the 26th March, 1964. The order of reference shows that it appeared to the President that the incidents in question had given rise to a serious conflict between a High Court and a State Legislature which involved important and complicated questions of law regarding the powers and jurisdiction of the High Court and its Judges in relation to the State Legislature and its officers and regarding the powers, privileges and immunities of the State Legislature and its members in relation to the High Court and its Judges in the discharge of their duties. The President was also satisfied that the questions of law which are set out in his order of reference are of such a nature and of such public importance that it is expedient to obtain the opinion of this Court on them. That is the genesis of the present reference. 7.3.15. "The questions referred to the Supreme Court under this reference read as follows:- (1) Whether, on the facts and circumstances of the case, it was competent for the Lucknow Bench of the High Court of Uttar Pradesh, consisting of the Hon'ble Mr. Justice N. U. Beg and the Hon'ble Mr. Justice G. D. Sahgal, to entertain and deal with the petition of Mr. Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Mr. Justice N. U. Beg and the Hon'ble Mr. Justice G. D. Sahgal, to entertain and deal with the petition of Mr. Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Mr. Keshav Singh on bail pending the disposal of his said petition; (2) Whether, on the facts and circumstances of the case, Mr. Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid, Mr. B. Solomon, Advocate, by presenting the said petition and the said two Hon'ble Judges by entertaining and dealing with the said petition and ordering the release of Shri Keshav Singh on bail pending disposal of the said petition committed contempt of the Legislative Assembly of Uttar Pradesh; (3) Whether, on the facts and circumstances of the case, it was competent for the Legislative Assembly of Uttar Pradesh to direct the production of the said two Hon'bJe Judges and Mr. Solomon, Advocate, before it in custody or to call for their explanation for its contempt; (4) Whether, on the facts and circumstances of the case, it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of the said two Hon'ble Judges and Mr. B. Solomon, Advocate, and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly; and (5) Whether a Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt or for infringement of its privileges and immunities or who passes any order on such petition commits contempt of the said Legislature and whether the said Legislature is competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. (Para 14)" 7.3.16. (Para 14)" 7.3.16. After a detailed judgment, which is a landmark in respect of the judgments of the Supreme Court, the questions raised were answered by majority judges as follows:- "(1) On the facts and circumstances of the case, it was competent for the Lucknow Bench of the High Court of Uttar Pradesh, consisting of N. U. Beg and G. D. Sahgal, JJ., to entertain and deal with the petition of Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Keshav Singh on bail pending the disposal of his said petition. (2) On the facts and circumstances of the case, Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid, Mr. B. Solomon, Advocate. by presenting the said petition, and the said two Hon'ble Judges by entertaining and dealing with the said petition and ordering the release of Keshav Singh on bail pending disposal of the said petition, did not commit contempt of the Legislative Assembly of Uttar Pradesh. (3) On the facts and circumstances of the case, it was not competent for the Legislative Assembly of Uttar Pradesh to direct the production of the said two Hon'ble Judges and Mr. B. Solomon, Advocate, before it in custody or to call for their explanation for its contempt, (4) On the facts and circumstances of the case, it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of said two Hon'ble Judges and Mr. B. Solomon, Advocate, and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly; and (5) In rendering our answer to this question which is very broadly worded, we ought to preface our answer with the observation that the answer is confined to cases in relation to contempt alleged to have been committed by a citizen who is not a member of the House outside the four walls of the legislative chamber. A Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner for its contempt, or for infringement of its privileges and immunities, or who passes any order on such petition does not commit contempt of the said Legislature; and the said Legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. In this answer, we have deliberately omitted reference to infringement of privileges and immunities of the House which may include privileges and immunities other than those with which we are concerned in the present Reference. (Para 143)" (4) On the facts and circumstances of the case, it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of said two Hon'ble Judges and Mr. B. Solomon, Advocate, and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly; and (5) In rendering our answer to this question which is very broadly worded, we ought to preface our answer with the observation that the answer is confined to cases in relation to contempt alleged to have been committed by a citizen who is not a member of the House outside the four walls of the legislative chamber. A Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner for its contempt, or for infringement of its privileges and immunities, or who passes any order on such petition does not commit contempt of the said Legislature; and the said Legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. In this answer, we have deliberately omitted reference to infringement of privileges and immunities of the House which may include privileges and immunities other than those with which we are concerned in the present Reference. (Para 143)" 7.4.1. In the case of Yeswant Rao Meghawale v. Madhya Pradesh Legislative Assembly and others reported in A.I.R. 1967 Madhya Pradesh 95 there were applications under Articles 226 and 227 of the Constitution wherein the two petitioners, viz. (Para 143)" 7.4.1. In the case of Yeswant Rao Meghawale v. Madhya Pradesh Legislative Assembly and others reported in A.I.R. 1967 Madhya Pradesh 95 there were applications under Articles 226 and 227 of the Constitution wherein the two petitioners, viz. Shri Yeswant Rao Meghawale and Shri Pandhari Rao Kridutta sought for a declaration that notwithstanding the passing of the two resolutions by the Madhya Pradesh Legislative Assembly (hereinafter referred to as 'the Assembly') on 17th March, 1966, expelling them from the House, their seats had not become vacant. Prayer was made to the effect that the respondents-viz, the Assembly, the Secretary of the Assembly and the State of Madhya Pradesh, be restrained by a direction from giving effect in any manner to the resolutions and to the notifications, published by the Secretary of the Assembly in the Extraordinary Gazette dated 19th March, 1966. They also prayed that the fourth respondent, namely, the Election Commission, New, Delhi, be also directed not to hold bye elections for filling their seats. After two motions were moved, put to vote and carried, on 19th March, 1966, there appeared in the Extraordinary Gazette of the date a notification under the signature of the Secretary of the Assembly stating as follows: "Consequently on the adoption of a motion by the Madhya Pradesh Vidhan Sabha on the 17th March, 1966, expelling from the House Shri Yeswant Rao Meghawale, a member elected to the Madhya Pradesh Vidhan Sabha from Kurud constituency, he has ceased to be a member of the Madhya Pradesh Vidhan Sabha with effect from the 17th March, 1966 afternoon." A similar notification declaring that Pandhari Rao Kridutta ceased to be a member of the Assembly with effect from the afternoon of 17th March, 1966, was also published in the Extraordinary Gazette of 19th March, 1966. On 21st March, 1966 the Secretary of the Assembly addressed two letters to the Secretary Election Commission, New Delhi, informing him of the adoption by the Assembly of the two motions expelling the petitioners from the House and adding that the constituencies they represented had fallen vacant with effect from the afternoon of 17th March, 1966. On 21st March, 1966 the Secretary of the Assembly addressed two letters to the Secretary Election Commission, New Delhi, informing him of the adoption by the Assembly of the two motions expelling the petitioners from the House and adding that the constituencies they represented had fallen vacant with effect from the afternoon of 17th March, 1966. The petitioners challenged the said resolutions passed by the Assembly expelling them as unconstitutional, ultra vires and void in law for the reason that under Art. 194 (3) of the Constitution, the Assembly did not have the power to expel any member and make his seat vacant; and that the seat of a member can become vacant only in the circumstances mentioned in Arts. 190, 191 and 192. They also contended that the privilege and power of expelling a member enjoyed by the House of Commons of the Parliament of the United Kingdom was not available to the Assembly as that power exercised by the House of Commons was an adjunct of the privilege and power to regulate its own constitution and the Legislative Assembly had no such power. It was also submitted by them that in the Rules of Procedure and Conduct of Business framed by the Assembly under Art. 208 of the Constitution, there is no rule for expulsion of members though there are rules for dealing with withdrawal and suspension of members. The applicants also made a grievance that the resolutions were passed by the Assembly without giving them any opportunity to explain the allegations and to say that they were untrue. In the return filed by the State in each petition, a preliminary objection, as to the maintainability of the applications, was raised. It was to the effect that the petitioners were not entitled to bring up, canvass or question before any Court of law, whether by a petition under Art. 226 of the Constitution or otherwise, howsoever, the propriety, legality or validity of the proceedings within the four walls of the House; that the applicants could not in the High Court question the Correctness of the factual statements contained in the two resolutions as to their conduct in the course of the sitting of the Assembly on 16th March, 1966 that they could not question in the Court the propriety, legality or validity of the two resolutions and that in regard to the matters impugned the respondent no. 1, the Assembly, and the respondent no. 2, Secretary of the Assembly, were not amenable to the jurisdiction of the Court. On merits, it was submitted by the State that by virtue of Art. 194 (3) of the Constitution the powers, privileges and immunities of the Assembly are those of the House of Commons of the Parliament of the United Kingdom at the commencement of the Constitution and that on 26th January, 1950 the House of Commons exercised the privilege and power of expelling any member not as an adjunct of its privilege and power to regulate its own constitution but as a power to punish a member found guilty of a breach of privilege or contempt of the House. It was stated in the return that the power to expel a member was inherent in every legislative body and it was a power of self-protection and the House was necessarily the sole Judge of the exigency which justified and required its exercise; that articles 190 (3) and (4) and 192 of the Constitution were not exhaustive of all cases of vacation of seats that they dealt with limited cases of disqualifications and that Art. 194 (3) was an additional power given to the State Legislature to bring about vacation of a seat and the same was not abrogated by anything contained in Art. 190 or 191 or even 192. (Paras 1 to 8) 7.4.2. Upon the arguments presented to the Court it was observed that the questions that arose for determination was as follows:- "(1) Whether this Court can enquire whether the Assembly has the power and the privilege of expelling a member found guilty of a breach of privilege or contempt of the House so as to render his seat vacant"; "(2) Whether, if such a privilege is found to exist in the House, the Court can judge of the occasion and of the manner of its exercise" and "(3) Whether the Legislative Assembly and its Secretary are amenable to the jurisdiction of this Court." 7.4.4. It was held that the Court can judge of the existence in the House of privilege or power claimed. But once a privilege is found to exist, it is for the House to judge of the occasion and of the manner of its exercise. It was held that the Court can judge of the existence in the House of privilege or power claimed. But once a privilege is found to exist, it is for the House to judge of the occasion and of the manner of its exercise. The Court cannot interfere with an erroneous decision by the House or its Speaker in respect of a breach of its privilege. 7.5.1. The next important case to be considered is the case of Hardwari Lal v. The Election Commission of India and others : ILR 1977 (2) Punjab & Haryana 269. In view of the importance of this decision it is necessary to deal with the same in details. In that case the petitioner was an elected member of the Haryana Vidhan Sabha. He wrote some articles. Two members of the Vidhan Sabha gave notice to the Secretary. Vidhan Sabha, alleging breach of privilege by the petitioner by publishing the booklet. After some discussion in the Vidhan Sabha the House referred the question of Privilege to the Committee of Privilege for examination and report, where the petitioner was also examined. The Committee submitted its report finding that there was breach of privilege and on the question of punishment the Committee recommended to the House that the petitioner be expelled from the House and the seat be declared vacant, as, in the opinion of the Committee, he was guilty of breach of privilege and contempt of the House, the Members and the Speaker. The report of the Privilege Committee came for discussion before the Vidhan Sabha and after discussion the House unanimously adopted the motion expelling the petitioner from the House. Consequent upon the adoption of the motion the petitioner was declared by a notification to have ceased to be a member of the Vidhan Sabha with effect from that date. Thereafter the petitioner approached the High Court under writ jurisdiction. 7.5.2. In that case the majority judgment was delivered by Sandhawalia, J. (as he then was). Prem Chand Jain and Gurnam Singh, JJ., agreed to the same. Chief Justice Narula delivered a dissenting judgment with which Harbans Lal, J. agreed, but he also delivered a separate dissenting judgment. 7.5.3. Thereafter the petitioner approached the High Court under writ jurisdiction. 7.5.2. In that case the majority judgment was delivered by Sandhawalia, J. (as he then was). Prem Chand Jain and Gurnam Singh, JJ., agreed to the same. Chief Justice Narula delivered a dissenting judgment with which Harbans Lal, J. agreed, but he also delivered a separate dissenting judgment. 7.5.3. It should be pointed out that though the petitioner had at the stage of the presentation of the petition assailed his expulsion on various grounds resting on the violation of Articles 14 and 19 of the Constitution, in view of the promulgation of the Emergency, at the time of the hearing he avoided reference to them. (Paras 40 and 201). 7.5.4. Sandhawalia, J. while delivering the majority judgment broadly indicated the basic points at issue as follows (para 235) : (a) Whether all the privileges, powers and immunities of the House of Commons are to be deemed as written in pen and ink into the Constitution of India and thereafter to be construed as an integral part thereof? (b) Whether the Presidential reference in the V.P. Legislature's case is declaratory of the law and thus binding on all the High Courts ? (c) Whether the admitted privilege and power of providing for and regulating its own constitution enjoyed by the House of Commons in England is equally available to the State Legislatures within India? (d) Whether the admitted right of the House of Commons to expel one of its members is an internal and indivisible facet of its privilege to provide for and regulate its own constitution? (e) Whether the privilege of providing for and regulating its own constitution vesting in the House of Commons can be expressed in three ways only, or is that enumeration merely illustrative? (f) Whether the power of expulsion is so inherently alien to the tenets of the written Constitution of India as to be unavailable to its State Legislature in the very nature of things? 7.5.5. The finding of the learned Judge on the respective points at issue were as follows:- Re : (a) Agreeing with the views expressed in the Division Bench judgment in Chabildas Mehta's case it was observed as follows:- "I am entirely in agreement with the aforesaid lucid reasoning on the point. 7.5.5. The finding of the learned Judge on the respective points at issue were as follows:- Re : (a) Agreeing with the views expressed in the Division Bench judgment in Chabildas Mehta's case it was observed as follows:- "I am entirely in agreement with the aforesaid lucid reasoning on the point. Indeed it appears to me that the intriguing argument on behalf of the respondents is no more than an invitation to indulge in a quixotic exercise of the first imagining very nothings and then tilting at them The contention of the respondent on this significant issue of approach to the construction of Article 194 (3) must, therefore, be unreservedly rejected." (Para 242). Re : (b) It was held that the U.P. Legislature's case is a binding precedent for the Punjab and Haryana High Court and consequently in the event of any conflict with smaller Benches of the Supreme Court the considered view expressed therein by the majority is plainly entitled to preference. (Para 252). Re : (c) It was held that it is beyond the pale of any controversy that the Haryana Vidhan Sabha under Article 194 (3) or otherwise had no power to provide for or regulate its own constitution unlike the House of Commons in England. (Para 262). Re : (d) It was held that the uncanalised power of expulsion in the House of Commons stems from its own composition which in turn arises for long historical reasons and because of the unwritten constitution in England. The learned Judge was firmly of the view that no such power can descend to the State Legislatures in India in view of the admitted position that the peculiar privilege of providing for and regulating its constitution which undoubtedly vests in the British House of Commons is by the very nature of things unavailable to our Legislatures. (Para 300). Re : (e) It was held that the statement in May's Parliamentary practice on the point that the privilege of providing for and regulating its own constitution by the House of Commons being expressed in three ways is merely illustrative and not exhaustive. The power of expulsions is an additional mode of exercising that basic privilege. Even otherwise the power of expulsion can equally be well visualised as an adjunctive or necessary procedural power to effectuate the basic purpose of that very privilege. (Para 313). The power of expulsions is an additional mode of exercising that basic privilege. Even otherwise the power of expulsion can equally be well visualised as an adjunctive or necessary procedural power to effectuate the basic purpose of that very privilege. (Para 313). Re : (f) It was held that in view of the basic premise of a Republican Democracy enshrined in the Preamble of our Constitution; Articles 170 and 172 prescribing the freedom of franchise and the freedom of choice for a fixed duration for the territorial constituencies of a State Legislature; and Article 190, 191 and 192 providing in detail for the vacation of seats and disqualifications for membership : when read together are all pointers to the fact that a power of expulsion by majority is inherently alien to the written provisions of our Constitution and is, therefore, unavailable to the State Legislatures by the very nature of things. (para 336). On Article 212, it was held that any patent illegality even of procedure would become examinable by the Courts. Similarly and in fact more so any action (other than irregularity of procedure) which contravenes any other law or a provision of the Constitution is obviously within the exclusive jurisdiction of the Superior Courts. (Para 385). 7.5.6. So far as the minority judgment by Chief Justice Narula is concerned, it was held, inter alia, as follows:- (i) Written petition was maintainable in some of the cases. (ii) Power of expulsion is with the House which is not part of the constitution of the House. Examples were given of the powers exercised by the House of Commons. (iii) Regarding the nature of the power to expel, examples were given of exercise of power by House of Commons and the Legislatures in India. 7.5.7. Justice Harbans Lal, in a separate dissenting judgment held as follows:- (a) There are some powers and privileges which are enjoyed by the House of Commons because they have the right to determine the Constitution of the House and the qualifications or the disqualifications of its members. This power and privilege does not vest in the State Legislatures. (Para 393) (b) The right of the House of Commons to punish its own members for their conduct in the House is specified as an independent power and privilege and not as an adjunct of the power to constitute itself. This power and privilege does not vest in the State Legislatures. (Para 393) (b) The right of the House of Commons to punish its own members for their conduct in the House is specified as an independent power and privilege and not as an adjunct of the power to constitute itself. (Para 395) (c) The powers and privileges of the House of Commons which have devolved upon the State Legislatures under Article 194 (3) of the Constitution include the power of expulsion. (Para 414) (d) It was the intention of the Constitution makers that Articles 190 and 191 will not control clause (3) of Article 194. (Paras 416, 422 and 429) (e) Re : Mala fide, it was observed as follows: "On the parity of reasoning, if the right to vote exercised by a member in the Legislature becomes a subject matter of any observation or finding by the Court, may be regarding ma1a fides, this declaration by the Constitution of the right to vote by the legislators will become meaningless. Therefore, I am inclined to the view that if true intention of Articles 194 (2), 121 and 211 is to be carried out in letter and spirit, the Full Bench in Jai Singh Rathi's case has correctly laid down that no mala fides can be attributed to the legislature." (Para 429) 7.6.1. In the case of K. Anbazbagan and others v. The Secretary, The Tamil Nadu Legislative Assembly, Madras reported in A.I.R. 1988 Madras 275, a Division Bench of the Madras High Court presided over by Chief Justice were hearing some writ petitions filed by the petitioners who were members of the Tamil Nadu Legislative Assembly. The resolution dated 22nd December, 1986 passed by the Assembly was on a motion moved by the Leader of the House. The resolution dated 22nd December, 1986 passed by the Assembly was on a motion moved by the Leader of the House. The resolution itself specified various allegations against the petitioners regarding their conduct relating to burning a part of the Constitution of India in public place and it was considered that the said conduct was, apart from being an act of violation of the oath or affirmation made and subscribed as members bearing true faith and allegiance to the Constitution of India, was also lowering the regard for the Constitution, the regard for the House constituted by it and the regard which a member of the House should have; which was also derogatory to the dignity of the Constitution as well as the dignity of the House and wholly inconsistent with the standards which this House expected from its Members. Accordingly, the House resolved that the said Members of the House including the petitioners were unfit to continue as Members of the House. It was also resolved that they were expelled from the membership of the House and that they could not continue to be members of the House. It was further resolved that their seats became vacant. Thereafter a notification was also published to the effect that the said ten members including the suit petitioners had ceased to be members of the Assembly. In the petition filed by them they prayed for a declaration that the resolution expelling them from the House and declaring their seats in Assembly as vacant was unconstitutional, null and void. 7.6.2. It is interesting to note that the Speaker of the Assembly, who was made a party respondent, declined to appear in the proceedings. 7.6.3. The principal question which was argued in all these writ petitions was that the State Legislature does not have the power to expel a member of the Assembly. It was contended in support of the petition that the power of expulsion was a part of the power of the House to regulate its own composition. It was contended that the expulsion was a disqualification vis-a-vis an election which had already taken place because having been elected the expelled Members of the House were not allowed to sit in the House thus resulting a disqualification. It was contended that the expulsion was a disqualification vis-a-vis an election which had already taken place because having been elected the expelled Members of the House were not allowed to sit in the House thus resulting a disqualification. A further submission was made on merits that the conduct referred to in the resolution of expulsion was a conduct outside the House and that since the petitioners had not offended the House or the Speaker or any other member of the House, the question of punishment did not arise. Reliance was placed in this connection on May's Parliamentary Practice, Hood & Phillips on Constitutional and Administrative Law, Halsbury's Laws of England, the Presidential Reference case in A.I.R. 1965 S.C. 745 and the majority judgment in Hardwari Lal v. The Election Commission of India (ibid). 7.6.4. As no one appeared on behalf of the Speaker the Court had requested the learned Advocate General to assist the Court. The learned Advocate General had argued that the minority judgment in Hardwari Lal v. The Election Commission of India and the judgment of the M.P. High Court in Yeshwant Rao v. M.P. Legislative Assembly had laid down the correct position of law. It was argued that the power of expulsion was an independent privilege of the Legislative Assembly as it is of the House of Commons and it was not a part of the power of the House of Commons to regulate its own composition. Several instances were given where such power was exercised both by the House of Commons and by the India Parliament as also by the State Legislatures. Reference was also made to the decision of the Supreme Court in M.S.M. Sharma v. Sri Krishna Sinha : AIR 1959 SC 395 , in which, according to the learned Advocate General, the power of expulsion had been recognised by the Supreme Court. It was argued that the power of expulsion was exercised by the House of Commons as a punitive power and such a power is not incompatible with any of the provisions of the Constitution and particularly Articles 170, 172, 190 and 191 of the Constitution of India. It was argued that the power of expulsion was exercised by the House of Commons as a punitive power and such a power is not incompatible with any of the provisions of the Constitution and particularly Articles 170, 172, 190 and 191 of the Constitution of India. Regarding the grievance that most of the members of the Legislative Assembly, who were expelled, were not given any opportunity of putting their case before the House, it was submitted that the procedure adopted by the Legislative Assembly was not open to judicial scrutiny. His argument was that expulsion of a member from the Legislative Assembly does not result in any disqualification as contemplated by the provisions of the Constitution or by Section 8 of the Representation of the People Act, 1951, and the petitioners were, therefore, not right when they argued that by upholding the power of expulsion, a new disqualification was being added to those which are originally contemplated by the Constitution of India. 7.6.5. The conclusions arrived at by the said decision was as follows:- (1) … … … (2) The impugned resolution does not have the effect of expulsion of a member on the ground that he has incurred a disqualification for having committed a breach of oath, but it is found on the conduct of the elected members, which the Assembly considered to be derogatory to the dignity of the Constitution as well as the dignity of the Assembly and they were considered unfit to be members of the Assembly. This expulsion does not disqualify the expelled members from seeking re-election. (3) to (6) … … … (7) The effect of the Constitution (Forty-fourth Amendment) Act, 1978 amending Art. 194(3) is that whenever a question of privilege arises, the relevant point of time for ascertaining whether a similar privilege was exercised by the House or its members and Committees has to be determined with reference to 20th June, 1979. (8) The power of expulsion apart from being a part of the power of the House of Commons to regulate its own composition, was essentially a power which was in the nature of exercising a disciplinary control over the membership of the House with a view to see that such of the members who are unfit in the opinion of the House to continue to be its members, could be expelled from membership. What is important is not that the power of expulsion so exercised was a part of the powers of the House of Commons to regulate its composition but that the power of expulsion was in fact exercised by the House of Commons also as a part of the power to punish a member by expelling him. (9) The House of Commons possessed and exercised the power and privilege to expel a member for an action which the House considered to be a misconduct even though the misconduct was committed outside the House. This power subsisted not only at the commencement of the Constitution, but in the absence of anything to show that this power was given up between the commencement of the Constitution and the commencement of the Constitution (Forty-fourth Amendment) Act, such a power must be held to be subsisting at the material time for the purpose of Article 194(3) of the Constitution of India. (10) By enacting Art. 194(3) what was intended to be adopted was the powers and privileges of the House of Commons as set out in May's Parliamentary Practice, which included the power of expulsion. (11) The power of expulsion is not inconsistent with any of the other provisions of the Constitution of India. Such power cannot be negatived on the ground that an elected member was entitled to continue as a member for a period of five years or that a particular constituency may go unrepresented because of the expulsion of the elected representative. (12) … … … (13) Even in the United States, the power of expulsion has been recognised in respect of the conduct of an elected member of a House inconsistent with the position and dignity and inconsistent with the trust and duty of a member and has been held to exist in a legislative body; whether expressly conferred or not, as being a necessary and incidental power to enable the House to perform its high functions and necessary to the safety of the State. (14) & (15) … … … (16) The resolution is not open to challenge on the ground that the concerned members were not heard as such a challenge on the ground of failure to follow a procedure which would amount to an 'irregularity' and not 'illegality' having regard to the provisions of Art. 112 of the Constitution of India. (14) & (15) … … … (16) The resolution is not open to challenge on the ground that the concerned members were not heard as such a challenge on the ground of failure to follow a procedure which would amount to an 'irregularity' and not 'illegality' having regard to the provisions of Art. 112 of the Constitution of India. (17) The Resolution of expulsion is not open to challenge on the ground that a seat becoming vacant on account of expulsion of a member is not expressly contemplated by Section 250 of the Representation of the People Act, because the opening part of Section 150 will also cover a case of seat becoming vacant as a result of expulsion. (18) Rules made under Art. 208 of the Constitution have to be construed as regulating the procedure of the House and the conduct of its business, and Rule 312 when it refers to the 'residuary power' of the Speaker, must be exercised only with regard to the procedure and conduct of the business of the House." (Para 112) 7.6.6. In the result, all the writ petitions were dismissed. 8. PRELIMINARY POINT - MAINTAINABILITY OF WRIT PETITIONS. 8.1. On the preliminary question as to the maintainability of these writ petitions, I am not inclined to accept the extreme propositions sought to be propounded initially by Mr. Shanti Bhushan. We are not inclined to hold that a writ petition cannot be maintainable under any circumstance in respect of any action taken by the Legislature of State in purported exercise of its powers and privileges and even in the case of expulsion of its members. The Court can certainly ascertain the scope and extent of the privilege claimed by the legislature. The writ court can examine whether the power sought to be exercised by the legislature is within the scope and extent of its powers or not. The decision about the construction of Article 194(3) must ultimately rest exclusively with the judicature of this country. The High Courts can go into the question of legality of the action of the legislature, though not mere "irregularity of procedure". As a matter of fact, Article 212 itself, instead of supporting the contention of Mr. Shanti Bhushan, goes against his contentions. The High Courts can go into the question of legality of the action of the legislature, though not mere "irregularity of procedure". As a matter of fact, Article 212 itself, instead of supporting the contention of Mr. Shanti Bhushan, goes against his contentions. If it was the intention of the framers of the Constitution to exclude the jurisdiction of the writ courts absolutely and totally, so far as any proceeding of a legislature is concerned, then Article 212 would have been framed differently in that event, in a clear language a total ban would have been imposed. However, what was done by Article 212 was merely to create a bar only so far as the procedural irregularity is concerned. I shall consider the aspect of "illegality" and "irregularity" in detail later in a different context. 8.2. In this context it may be pointed out that even a statute, which is required to be passed by the House/Houses and receives the assent of the President/Governor, can be challenged Oil some ground e.g. legislative competency or on any other ground of legality e.g. that it violates the fundamental rights guaranteed by the Constitution. Under these circumstances, it would be travesty of constitutional procedure, as enshrined by Arts. 32 and 226, if the extreme proposition, that no writ is maintainable against a mere decision/resolution of a particular House, may be in exercise of its powers and privileges, is accepted as a correct proposition of law. 8.3. However, it must be conceded that the power of the writ courts, so far as the exercise of the power and privilege of a legislature is concerned, is not unlimited. It is not certainly so wide as to enable the courts to go into the merits of the decision or action of a legislature. It cannot act as an appellate authority. If the exercise of power by the legislature is within the scope and extent of its power then the correctness or propriety of such exercise of power cannot be gone into by the Court. In that event, it must be left to the House itself to determine whether there has, in fact, been any breach of its privilege and whether or not to impose any punishment. If there is no illegality or nullity but mere irregularity of procedure, this writ court cannot interfere. In that event, it must be left to the House itself to determine whether there has, in fact, been any breach of its privilege and whether or not to impose any punishment. If there is no illegality or nullity but mere irregularity of procedure, this writ court cannot interfere. To this extent the writ court's jurisdiction vis-a-vis the legislature is of a limited nature but the writ court's jurisdiction cannot be said to be absolutely barred or totally ousted. 8.4. Reference be made in this connection to the Presidential Reference case (ibid) (paragraphs 38, 39, 42, 43, 59, 60, 85, 118, 129, 130 and 132). I set out hereinafter some of the relevant passages:- "There is another aspect of this matter which must also be mentioned: whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by a Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative authority and their functions are normally confined to legislative functions, and the functions and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country He within the domain of adjudication. If the validity of any taw is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country; and so, we feel no difficulty in holding that the decision about the construction of Art. 194 (3) must ultimately rest exclusively with the Judicature of this country. That is why we must overrule Mr. Seervai's argument that the question of deter mining the nature, scope and effect of the powers of the House cannot be said to lie exclusively within the jurisdiction of this Court. That is why we must overrule Mr. Seervai's argument that the question of deter mining the nature, scope and effect of the powers of the House cannot be said to lie exclusively within the jurisdiction of this Court. (Para 42) "Let us first take Art. 226. This Article confers very wide powers on every High Court throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate case any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them for the enforcement of any of the rights conferred by part III and for any other purpose. It is hardly necessary to emphasise that the language used by Art. 226 in conferring power on the High Courts is very wide. Art. 12 defines the "State" as including the Legislature of such State; and so, prima facie, the power conferred on the High Court under Art. 226 (1) can, in a proper case, be exercised even against the Legislature. If an application is made to the High Court for the issue of a writ of habeas corpus, it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is by an order of the House. Art. 226(1) read by itself, does not seem to permit such a plea to be raised. Art. 32 which deals with the power of this Court, puts the matter on a still higher pedestal; the right to move this Court by appropriate proceedings for the enforcement of the fundamental rights is itself a guaranteed fundamental right, and so what we have said about Art. 226(1) is still more true about Art. 32(1)." (Para 59) "If the power of the High Courts under Art. 226 and the authority of this Court under Art. 31 are not subject to any exceptions, then it would be futile to contend that, a citizen cannot move the High Courts or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf; otherwise the power conferred on the High Courts and this court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of the citizens' fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case." (Para 129) "... ...If a citizen has the right to move the High Court or the Supreme Court against the invasion of his fundamental rights, the statutory right of the advocate to assist the citizen steps in and helps the enforcement of the fundamental rights of the citizen. It is hardly necessary to emphasise that in the enforcement of fundamental rights guaranteed to the citizens the legal profession plays a very important and vital role, and so, just as the right of the Judicature to deal with matters brought before them under Art. 226 or Art. 32 cannot be subjected to the powers and privileges of the House under Art. 194(3), so the rights of the citizens to move the Judicature and the rights of the Advocates to assist that process must remain uncontrolled by Art. 194(3). That is one integrated scheme for enforcing the fundamental rights and for sustaining the rule of law in this country. Therefore, our conclusion is that the particular right which the House claims to be an integral part of its power or privilege is inconsistent with the material provisions of the Constitution and cannot be deemed to have been included under the latter part of Art. 194(3)." (para 132). 8.5. In this connection, reference may also be made to M. P. decision (ibid), the relevant passages whereof are set out hereunder:- "The language of Art. 194 (3) is plain enough to show that whenever a power or privilege is claimed by the House there must be an enquiry whether that power or privilege was a subsisting one in the House of Commons on 26th January 1950 and was recognised by the English Courts. This enquiry can clearly be by the Court......" (para 10) "This court, can therefore, judge of the existence in the House of a privilege or power claimed. But once a privilege is found to exist, it is for the House to judge of the occasion and of the manner of its exercise. The Court cannot interfere with an erroneous decision by the House or its Speaker in respect of a breach of its privilege. This proposition cannot be disputed in view of the decision of the Supreme Court in M. S. Sharma v. Krishna Sinha, 1959 Supp. (1) SCR 806 : A.I.R. 1959 S.C. 395. It is unnecessary to burden this "judgement by entering into a lengthy discussion about the power of the Courts in England to judge of the existence in either House of Parliament of a power or privilege claimed. Briefly put, the position in England is that it is for the Courts to judge of the existence in either House of Parliament of a privilege; but where one of the undoubted privileges of the House is infringed, then the Courts cannot interfere with the decision of either House and it is for the House to judge of the occasion and of the manner of its exercise." (para 11). 8.6. Following the Presidential Reference Case, in Punjab case, Chief Justice Narula also held that at least in some circumstances a petition under Article 226 of the Constitution can be filed against a State Legislature notwithstanding Article 194 (3). In this connection reference may be made to paragraphs 41 to 76 of the judgment and particularly paragraphs 42, 55, 74 and 76 thereof. 8.7. Reference may be made also in this connection to the Full Bench decision of the Madras High Court in M. Paulcaj v. Speaker (A.I.R. 1986 Madras 248) (para 11) 8.8. Accordingly, I am of the opinion that the jurisdiction of the writ Court in a case of this nature is not totally or wholly barred. The writ Court can examine the scope and extent of the powers and privileges of a legislature. However, if the exercise of power by the legislature is within the scope and extent of the same, then the correctness or propriety of such exercise of power by the legislature cannot be gone into by the Court. The writ Court can examine the scope and extent of the powers and privileges of a legislature. However, if the exercise of power by the legislature is within the scope and extent of the same, then the correctness or propriety of such exercise of power by the legislature cannot be gone into by the Court. However, if there is any illegality in any such action, then the writ Courts can go into the same and decide accordingly. Article 212 would not be a bar in that case, because the said Article is attracted in cases of mere irregularity of procedure and not illegality as such. 9. Now I shall deal with the various contentions raised relating to the merits of the case. The main consideration is the scope and extent of the power, privileges and immunities of the Indian Legislatures. These are provided in Article 194 of the Constitution. 10. Scope of Article 194-Whether the different clauses are subject to Constitution. 10.1. The first question is whether the different clauses of Article 194 and particularly the first part and the latter part of clause (3) of the said Article is subject to the provisions of the Constitution including Part III thereof. Clause (1) of Article 194 provides for absolute freedom of speech in the legislature. However, this is specifically made subject to the provisions of the Constitution including Part III thereof and the rules and standing orders regulating the procedure of the Legislature. However, it is well settled that Art. 19 (1) (a) is not one of the provisions of the Constitution which controls the first part of clause (1) of Article 194. Clause (2) of Article 194 confers complete immunity on the legislature from any action in any Court in respect of any speech in the legislative chambers in the widest terms permitted. So far as clause (3) is concerned, with which we are concerned in the present case, the first part empowers the legislatures of the States to make laws prescribing their powers, privileges and immunities. When the State legislature purports to exercise this power, they will be acting under Article 246 read with entry 39 of list II. So far as clause (3) is concerned, with which we are concerned in the present case, the first part empowers the legislatures of the States to make laws prescribing their powers, privileges and immunities. When the State legislature purports to exercise this power, they will be acting under Article 246 read with entry 39 of list II. The enactment of such a law cannot be said to be in exercise of a constituent power and such a law will have to be treated as a "law" within the meaning of Art. 13 and clause (2) of Article 13 would render it void if it contravenes the fundamental rights guaranteed by the Constitution. Reference may be made in this connection to First M. S. Sharma's case (ibid) (paras 26 and 28) and Presidential Reference case (paras 31, 32, 37, 56 and 57). 10.2. The admitted position is that, so far as the Bihar Assembly is concerned, no such law has yet been enacted and the position remains the same as it was more than 30 years back when the 1st M. S. Sharma's case was decided. Accordingly, in the present case I will have to fall back upon the latter part of clause (3) of Art. 194. 10.3. So far as the latter part of clause (3) is concerned, in the case of first M.S.M. Sharma (ibid) it was observed that the fact that clause (1) has been expressly made subject to the provisions of the Constitution but clauses (2) to (4) have not been stated to be subject, indicates that the Constitution makers did not intend clauses (2) to (4) to be subject to the provisions of the Constitution. It was further observed that if the Constitution makers intended that the provisions of all clauses should be subject to the provisions of the Constitution, then the Article would have been drafted in a different way. It was further observed that though a law made under ordinary legislative power under the first part of clause (3) would be void in view of Article 13 (2), if such a law takes away or abridges any of the fundamental rights, it does not however follow that, if the powers, privileges or immunities conferred by the latter part of those Articles are repugnant to the fundamental rights, they must also be void to the extent of such repugnancy. We set out hereinbelow some of the relevant passages in this connection:- "Article 194 has already been quoted in extenso. It is quite clear that the subject matter of each of its four clauses is different. Clause (1) confers on the members freedom of speech in the Legislature, subject, of course, to certain provisions therein referred to. Clause (2) gives immunity to the members or any person authorised by the House to publish any report etc. from legal proceedings. Clause (3) confers certain powers, privileges and immunities on the House of the Legislature of a State and on the members and the committees thereof and finally cl. (4) extends the provisions of cls. (1) to (3) to persons who are not members of the House, but who, by virtue of the Constitution, have the right to speak and otherwise to take part in the proceedings of the House or any committee thereof. In the second place, the fact that cl. (1) has been expressly made subject to the provisions of the Constitution but cls. (2) to (4) have not been stated to be so subject indicates that the Constitution makers did not intend cls. (2) to (4) to be subject to the provisions of the Constitution. If the Constitution makers wanted that the provisions of all the clauses should be subject to the provisions of the Constitution, then the Article would have been drafted in a different way namely, it would have started with the words: "Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of the Legislature" and then the subject matter of the four clauses would have been set out as sub-cls. (i), (ii) (iii) and (iv); so as to indicate that the over-riding provisions of the opening words qualified each of the sub-clauses. In the third place, it may well be argued that the words "regulating the procedure of the Legislature" occurring in cl. (1) of Art. 194 should be read as governing both "the provisions of the Constitution" and "the rules and standing orders." So read freedom of speech in the Legislature becomes subject to the provisions of the Constitution regulating the procedure of the Legislature, that is to say, subject to the Articles relating to procedure in Part IV including Arts. (1) of Art. 194 should be read as governing both "the provisions of the Constitution" and "the rules and standing orders." So read freedom of speech in the Legislature becomes subject to the provisions of the Constitution regulating the procedure of the Legislature, that is to say, subject to the Articles relating to procedure in Part IV including Arts. 208 and 211 just as freedom of speech in Parliament under Art. 105 (1), on a similar construction, will become subject to the Articles relating to procedure in Part V including Arts. 118 and 121. The argument that the whole of Art. 194 is subject to Art. 19 (1) (a) overlooks the provisions of cl. (2) of Art. 194. The right conferred on a citizen under Art. 19 (1) (a) can be restricted by law which falls within cl. (2) of that Article and he may be made liable in a Court of law for breach of such law, but cl. (2) of Art. 194 categorically lays down that no member of the Legislature is to be made liable to any proceedings in any Court in respect of anything said or any vote given by him in the Legislature or in committees thereof and that no person will be liable in respect of the publication by or under the authority of the House of such a Legislature of an y report, paper or proceedings. The provisions of cl. (2) of Art. 194, therefore, indicate that the freedom of speech referred to in cl. (1) is different from the freedom of speech and expression guaranteed under Art. 19 (1) (a) and cannot be cut down in any way by any law contemplated by cl. The provisions of cl. (2) of Art. 194, therefore, indicate that the freedom of speech referred to in cl. (1) is different from the freedom of speech and expression guaranteed under Art. 19 (1) (a) and cannot be cut down in any way by any law contemplated by cl. (2) of Art. 19." (para 26) "...It is true that a law made by Parliament in pursuance of the earlier part of Art. 105 (3) or by the State Legislature in pursuance of the earlier part of Art. 194 (3) will not be a law made in exercise of constituent power like the law which was considered in Shankari Prasad Singh v. Union of India, 1962 SCR 89 at p. 90 : AIR 1951 SC 458 ) but will be one made in exercise of its ordinary legislative powers under Art. 246 read with the entries referred to above and that consequently if such a law takes away or abridges any of the fundamental rights it will contravene the peremptory provisions of Art. 13 (2) and will be void to the extent of such contravention and it may well be that is precisely the reason why our Parliament and the State Legislatures have not made any law defining the powers, privileges and immunities just as the Australian Parliament had not made any under S. 49 of their Constitution corresponding to Art. 194 (3) up to 1955 when the case of the Queen v. Richards, (1955) 92 CLR 57 was decided. It does not, however, follow that if the powers, privileges or immunities conferred by the latter part of those Articles are repugnant to the fundamental rights, they must also be void to the extent of such repugnancy. It must not be overlooked that the provisions of Art. 105 (3) and Art. 194 (3) are constitutional laws and not ordinary laws made by Parliament or the State Legislatures and that, therefore, they are as supreme as the provisions of Part III. It must not be overlooked that the provisions of Art. 105 (3) and Art. 194 (3) are constitutional laws and not ordinary laws made by Parliament or the State Legislatures and that, therefore, they are as supreme as the provisions of Part III. Further, quite conceivably our Constitution makers, not knowing what powers, privileges and immunities Parliament or the Legislature of a State may arrogate and claim for its House, members or committees, though fit not to take any risk and accordingly made such laws subject to the provisions of Art. 13; but that knowing and being satisfied with the reasonableness with the powers, privileges and immunities of the House of Commons at the commencement of the Constitution, they did not, in their wisdom) think fit to make such powers, privileges and immunities subject to the fundamental right conferred by Art. 19(1)(a). We must, by applying the cardinal rules of construction ascertain in the intention of the Constitution makers from the language used by them." (para 28) 10.4.1. In the subsequent Presidential Reference Case (ibid) it was pointed out by the Supreme Court that the latter part of clause (3) provides that until such laws are made under the first part, the legislature in question shall enjoy the same powers, privileges and immunities which the House of Commons enjoyed at the time of the commencement of the Constitution. It was pointed out that the Constitution makers must have thought that the legislative will take some time to make laws in respect of their powers, privileges and immunities under the first part and during the interval it was clearly necessary to confer on them the necessary powers, privileges and immunities which are incidental power, privileges and immunities, which every legislature must possess in order that it may be able to function effectively, and that explains the purposes of the latter part of clause (3). (para 33). (para 33). The Supreme Court, however, pointed out that though all the four clauses of Article 194 are not in terms made subject to the provisions contained in Part III, nevertheless if for other valid considerations, it appears that the contents of clause (3) may not exclude the applicability of certain relevant provisions of the Constitution, it would not be reasonable to suggest that these provisions must be ignored just because the said clause does not open with the words "subject to the other provisions of the Constitution". The Supreme Court pointed out that in dealing with the effect of the provisions contained in clause (3) of Article 194, wherever it appears that there is a conflict between the said provisions and the provisions pertaining to fundamental rights, an attempt will have to be made to resolve the said conflict by the adoption of the rule of harmonious construction (para 36). In this context, the Supreme Court observed as follows:- "......It may be recalled that Art. 13 provides that laws inconsistent with or in derogation of the fundamental rights would be void. Clause (1) of Art. 13 refers in that connection to the laws in force in the territory of India immediately before the commencement of the Constitution and clause (2) refers to laws that the State shall make in future. Prima facie, if the legislature of a State were to make a law in pursuance of the authority conferred on it by clause (3), it would be law within the meaning of Art. 13 and clause (2) of Art. 13 would render it void if it contravenes or abridges the fundamental rights guaranteed by Part III. As we will presently point out, that is the effect of the decision of this Court in Sharma's case, (1959) Supp. (1) SCR 806 : ( AIR 1959 SC 395 ) (supra). In other words, it must now be taken as settled that if a law is made under the purported exercise of the power conferred by the first part of clause (3), it will have to satisfy the test prescribed by the fundamental rights guaranteed by the Constitution. (1) SCR 806 : ( AIR 1959 SC 395 ) (supra). In other words, it must now be taken as settled that if a law is made under the purported exercise of the power conferred by the first part of clause (3), it will have to satisfy the test prescribed by the fundamental rights guaranteed by the Constitution. If that be so, it becomes at once material to enquire whether the Constitution-makers had really intended that the limitations prescribed by the fundamental rights subject to which alone a law can be made by the Legislature of a State prescribing its powers, privileges and immunities, should be treated as irrelevant in construing the latter part of the said clause. The same point may conveniently be put in another form. If it appears that any of the powers, privileges and immunities claimed by the House are inconsistent with the fundamental rights guaranteed by the Constitution, how is the conflict going to be resolved. Was it the intention of the Constitution to place the powers, privileges and immunities specified in the latter part of clause (3) on a much higher pedestal than the law which the legislature of a State may make in that behalf on a future date? As a matter of construction of clause (3), the fact that the first part of the said clause refers to future laws which would be subject to fundamental rights, may assume significance in interpreting the latter part of clause (3). That, in brief, is position of the first three material provisions of Art. 194." (para 37). 10.4.2. After pointing out that the provisions of Article 194(3) is the sole foundation of the powers of a legislature and that no power which is not included in it can be claimed by the House, it was observed that it is necessary to bear in mind that the fundamental features of a Federal Constitution is the Supremacy of the constitution, which is different from that in England where Parliament is sovereign, that is, it has the right to make or unmake any law. No person or body is recognised by the law of England as having a right to override or set aside the legislations of Parliament. No person or body is recognised by the law of England as having a right to override or set aside the legislations of Parliament. On the other hand, the essential characteristics of Federation is "the distribution of limited executive, legislative and judicial authorities amongst the bodies which are coordinated with and independent of each other". The supremacy of the Constitution is fundamental to the existence of a Federal State. In order to prevent either the legislature of federal unit or those of the member-States from destroying or impairing that delicate balance of power which satisfies the particular requirements of State, which are desirous of Union, but not preparing to merge their individuality in a unit. The supremacy of the Constitution is protected by an independent judicial body to act as the interpreter of a scheme of distribution of powers. Nor is any change possible in the Constitution by the ordinary process of federal or State legislation. Thus the dominant characteristic of British Constitution cannot be claimed by a Federal Constitution like ours. (para 39). In this context it was pointed out that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution. It was further pointed out that a legislative supremacy of our legislation including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. In a democratic country covered by a written Constitution, it is the Constitution which is supreme and sovereign. Therefore, it was pointed out that there can be no doubt that sovereignty which can be claimed by the Parliament in England, cannot be claimed by legislature in India in the literal absolute sense (paras 40 and 41). In this context it was observed that the position, therefore, is that in dealing with the dispute before the Supreme Court the Court ought to proceed on the basis that the latter part of Article 194(3) is not subject to Article 19(1) (a) but is subject to Article 21 (para 57). 10.4.3. In respect of the observations made in the first M. S. Sharma's case (ibid) on this point, the Supreme Court, in Presidential Reference case observed as follows :- "It would thus be seen that in the case of Sharma, (1959) Supp. 10.4.3. In respect of the observations made in the first M. S. Sharma's case (ibid) on this point, the Supreme Court, in Presidential Reference case observed as follows :- "It would thus be seen that in the case of Sharma, (1959) Supp. (1) SCR 806 : ( AIR 1959 SC 395 ) contentions urged by the petitioner did not raise a general issue as to the relevance and applicability of all the fundamental rights guaranteed by Part III at all. The contravention of only two articles was pleaded and they were Articles 19(1) (a) and 21. Strictly speaking, it was, therefore, unnecessary to consider the larger issue as to whether the latter part of Art. 194(3) was subject to the fundamental rights in general, and indeed, even on the majority view it could not be said that the said view excluded the application of all fundamental rights, for the obvious and simple reason that Art. 21 was held to be applicable and the merits of the petitioner's argument about its alleged contravention in his case were examined and rejected. Therefore, 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 always yield to the former. The majority decision, therefore, must be taken to have settled that Art. 19(1) (a) would not apply, and Art. 21 would." (para 54). 10.5. In my opinion, the first part of clause (3) of Art. 194 is generally subject to the provisions of the Constitution particularly Part III thereto. So far as the latter part of clause (3) is concerned, in our opinion, in view of the latter and larger Bench decision in the Presidential Reference case, it would not be correct to hold that the latter part of clause (3) of Art. 194 is not subject to any of the provision of the Constitution and even Part III thereof. The general observations in this context made in the first Sharma's case (ibid) has been explained by the Presidential Reference case (ibid). The general observations in this context made in the first Sharma's case (ibid) has been explained by the Presidential Reference case (ibid). In our opinion, the fact that it has been held that the latter part of clause (3) admittedly attracts Article 21, though Article 19(1) (a) does not, would itself indicate that it cannot be said that no part of the Constitution would apply in respect of the latter part of Art. 194 (3). However, in the present case neither Art. 19(1) (a) nor Art. 12 are relevant considerations. Whether other provisions of the Constitution, particularly Part III thereof, shall apply shall depend on the nature of the constitutional provisions. We shall consider this aspect of the matter, so far as other Articles are concerned, when we consider the question of the applicability of the principles of natural justice and fair play and the question of mala fide. 11. Power of House of Commons and Legislatures in India—General. 11.1. The next important question is what were the powers, privileges and immunities of the House of Commons, subsisting at the commencement of the Constitution of India. It is now well settled that under the second part of clause (3) of Article 194, the powers, privileges and immunities, which may be claimed by the House in India, must be shown to have been vested with the House of Commons at the time of the commencement of the Constitution. Out of the large number of privileges and powers which the House of Commons claimed, some were given up in the course of time and some virtually faded out by desuetude. In every case where a power is claimed, it is necessary to enquire whether it was an existing Rower at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was also reeognised by the English Courts. If a particular power which was claimed by the House of Commons, but not recognised by the English courts, it will not be upheld under the latter part of clause (3), only on the ground that it was, in fact, claimed by the House of Commons. In other words, the enquiry prescribed by this clause is whether the power in question is shown or proved to have subsisted in the House of Commons at the time of the commencement of the Constitution. In other words, the enquiry prescribed by this clause is whether the power in question is shown or proved to have subsisted in the House of Commons at the time of the commencement of the Constitution. Clause (3) of Article 194 is the sale foundation of the powers and no power which is not included in it, can be claimed by the legislature. No new privilege can be claimed by the House of Commons. By its resolution the House of Commons cannot add to the list of its privileges and powers. Reference may be made in this context to the Presidential Reference case (ibid) (Paras 34, 38 and 72), some of the passages wherein are set out hereinbelow:- "This clause requires that the powers, privileges and immunities which are claimed by the House must be shown to have subsisted at the commencement of the Constitution, i.e., on the 26th January, 1950. It is well-known that out of a large number of privileges and powers which the House of Commons claimed during the days of its better struggle for recognition, some were given up in course of time and some virtually faded out by desuetude; and so, in every case where a power is claimed, It is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was recognised by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognized by the English courts, it would still be upheld under the latter part of clause (3) only on the ground that it was in fact claimed by the House of Commons. In other words, the inquiry which is prescribed by this clause is : is the power in question shown or proved to have subsisted in the House of Commons at the relevant time?" (para 34) 11.2. The next question is whether an the powers and privileges which vested in the House of Commons at the time of the commencement of the Constitution, can be claimed by legislature of a State under the latter part of clause (3) of Article 194. The next question is whether an the powers and privileges which vested in the House of Commons at the time of the commencement of the Constitution, can be claimed by legislature of a State under the latter part of clause (3) of Article 194. As pointed out in the Presidential Reference case (ibid) such a broad claim cannot be accepted in its entirely because there are some powers which cannot be obviously claimed by the legislatures in India. While giving illustrations of the same, it was pointed out that the House of Commons claims the privileges regarding its own Constitution. In this context it was observed as follows:- "...... Mr. Seervai's argument is that the latter part of Art. 194(3) expressly provides that all the powers which vested in the House of Commons at the relevant time, vest in the House. This broad claim, however, cannot be accepted in its entirety, because there are some powers which can• not obviously be claimed by the House. Take the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker "to have at all times the right to petition, counsel or remonstrate with their Sovereign through their chosen representative and have a favourable construction placed on his words was justly regarded by the Commons as fundamental privilege (3)." It is hardly necessary to point out that the House cannot claim this privilege. Similarly the privilege to pass acts of attainder and impeachments cannot be claimed by the House. The House of Commons also claims the privilege in regard to its Constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons In the course of a parliament; secondly, by determining the qualifications of the members in cases of doubt (4). This privilege again, admittedly, cannot be claimed by the House. Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House. (para 45). 12. Power of House of Commons and Legislatures in India to impose Punishment. Partularly the Power of Expulsion. 12.1.1. Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House. (para 45). 12. Power of House of Commons and Legislatures in India to impose Punishment. Partularly the Power of Expulsion. 12.1.1. The next question is whether at the time of the commencement of the Constitution of India, the House of Commons had the power to take action against its members for breach of its privilege including the power of expulsion. 12.1.2. The Supreme Court in the Presidential Reference case (ibid) observed that on this question it would be quite safe to base on the relevant statements which have been made in May's Parliamentary Practice. In this context, Supreme Court observed as follows : "While considering the question of the powers, privileges and immunities of the English Parliament it would, we think, be quite safe to base ourselves on the relevant statements which have been made in May's Parliamentary Practice. This work has assumed the status of a classic on the subject and is usually regarded as an authoritative exposition of parliamentary practice; and so, we think it would be an exercise in futility to attempt to deal with this question otherwise than by reference to May." (Para 70). 12.1.3. Extensive quotations were made from the Treatise of May’s Parliamentary Practice which, inter alia, provided that this would include the right implied to punish its own members in respect of their conduct in Parliament (Paras 74 and 83). From the authorities quoted above, it is clear that this power was established so far as the House of Commons is concerned. Instances of the exercise of such power of expulsion by the House of Commons have been set out in paragraphs 46 to 60 of the Madras judgment and paragraphs 104 to 121 of the dissenting judgment of Narula C. J. in Punjab case. 12.1.4. Accordingly, in my opinion, at the time of the commencement of the Constitution of India the House of Commons had the power to take action against its members for breach of its privilege including the power of expulsion. 12.2.1. The next question is whether the exercise of such power of expulsion, arose solely and exclusively out of the power of the House of Commons regarding composition or constitution of the House. 12.2.1. The next question is whether the exercise of such power of expulsion, arose solely and exclusively out of the power of the House of Commons regarding composition or constitution of the House. In this context, we may point out that in England also there were laws regarding composition and constitution of the House of the relevant time. This power to take action for the breach of its privilege was still recognised as subsisting with the House at the time of the commencement of the Constitution. 12 2.2. Reference may be made in this connection to M. P. Case (ibid) (Paragraphs 12 to 23). Some of the observations are quoted herein below: ".........It is thus plain from the above statements contained in May's Parliamentary Practice and the instances mentioned in the book of members expelled from the House of Commons, that the House of Commons exercises the power of expelling a member not because it has the power to regulate its own proper constitution but because it finds it necessary for its proper functioning, protection and self-preservation to expel a member who has offered obstruction to the deliberations of the House during its sitting by his disorderly conduct or who has conducted himself in a manner rendering him unfit to serve as a member of the Parliament." (para 19). "...... The statements leave no doubt that the rights and privileges, which the House of Commons has, are necessary to maintain its independence of action and dignity of its position; that it has the privilege of completely controlling the conduct of its members; and that the right which the House of Commons has of providing for its own proper constitution is in addition to the privileges it has of completely controlling the conduct of its members. One of the ways in which the conduct of its members is controlled by the House of Commons is by exercise of the power of expulsion against him. It has been stated in paragraph 906 of Halsbury's Laws of England (3rd Edition, Vol. 28) that if in the opinion of the House a member has conducted himself in a manner which renders him unfit to serve as a member of Parliament, he may be expelled from the House." (para 20) 12.2.3. In this context reference may also be made to the Madras decision (para 35 to 69, 112 (8), (9) (10). 12.2.4. 28) that if in the opinion of the House a member has conducted himself in a manner which renders him unfit to serve as a member of Parliament, he may be expelled from the House." (para 20) 12.2.3. In this context reference may also be made to the Madras decision (para 35 to 69, 112 (8), (9) (10). 12.2.4. Accordingly, in my opinion, the exercise of such power of expulsion by the House of Commons did not arise solely and exclusively out of the power of the House regarding composition or constitution thereof. 12.3.1. The next question is whether such power or privilege was conferred on Indian Legislatures at the time of commencement of the Constitution under the latter part of Clause (3) of Article 194. This is irrespective of the question as to whether there is any provision in the Constitution which negatives this power or which prevents this power to be conferred on any Legislature in India. 12.3.2. In this context, we refer to the following passages from M. P. Case (ibid) : "Shri Jagdish Swaroop, learned counsel for the petitioners, also sought to draw support from the observations made by the Supreme Court in paragraph 45 of the majority opinion in AIR 1965 SC 745 (supra). Those observations, which the Supreme Court made while rejecting the broad claim made by Shri Seervai that all the powers which vested in the House of Commons at the relevant time vest in the State Legislatures in India, have been reproduced earlier. It is clear from those observations that the privilege which, according to the Supreme Court, cannot be claimed by the State Legislatures in India is the privilege of the House of Commons to provide for its own proper constitution and which privilege is expressed in the three ways mentioned by May. If, as we have just endeavoured to point out, the power of expulsion the House of Commons has, is not because of its privilege dealt with by May at page 175 to provide for its own proper constitution but quite independently of it as a power which is necessary for its protection, self-security and self-preservation, then it is plain that the observations of the Supreme Court relied on by learned counsel for the petitioners are of no assistance to the applicants. The Supreme Court had no occasion to consider whether the power of expulsion which vested in the House of Commons at the relevant time vests in the State Legislatures in India. The observations of the Supreme Court cannot, therefore, be read as implying that the power of expelling a member cannot be claimed by a State Legislature in India as it involves regulation of its own constitution." (para 22). ''......If the inherent power to expel a member has been conceded to a subordinate legislative body established and functioning under a statute of the British Parliament and which has under the statute no power to regulate its own constitution, then a fortiori when Article 194 (3) says that the powers, privileges and immunities which vested in the House of Commons at the commencement of the Constitution vest in the State Legislature it must be held that the State Legislature has inherent power to expel a member for its protection, self-security and self-preservation and for the orderly conduct of its business." (para 23). 12.3.3. I respectfully agree with the same. 12.4. I am unable to agree with the contrary view taken by the majority judgment in Punjab & Haryana case (ibid) (paragraphs 253 to 310), some passages of which are set out hereinbelow:- "The British House of Commons with its gradual and continuous evolution extending over a period of well nigh twelve centuries is perhaps an institution without parallel. The epithet of being a self-created body has been sometimes applied to it and also not inaptly it has been styled jointly with the House of Lords as the mother of Parliaments. In the context of an unwritten Constitution in England, the House of Commons has undoubtedly claimed and enjoyed the privilege of providing for and regulating its own constitution from the very earliest times. This privilege in terms and in effect implies and includes all powers to control the composition of the House and to determine the identity of its membership. The existence and the exercise of this peculiar privilege in the House of Commons is indeed indisputable. The issue, however, at once arises whether by virtue of Article 194 (3), the State Legislatures in India inherit any such power to provide or regulate their own Constitution ? The answer to this question seems inevitably to be in a categorical negative. The existence and the exercise of this peculiar privilege in the House of Commons is indeed indisputable. The issue, however, at once arises whether by virtue of Article 194 (3), the State Legislatures in India inherit any such power to provide or regulate their own Constitution ? The answer to this question seems inevitably to be in a categorical negative. However, in significant constitutional issues it is inapt to depend wholly on the concession of the parties or to proceed on a basic assumption unsupported by reasons I, therefore, deem It necessary to advert, however, briefly, to the factors which make it self-evident that in our detailed written Constitution, there does not arise even the remotest question of the State Legislatures having the privilege to provide or regulate their own constitution." (para 253). "On this aspect of the case, I conclude that it is beyond the pale of any controversy that the Haryana Vidhan Sabha under Article 194 (3) or otherwise has no power to provide for or regulate its constitution unlike the House of Commons in England." (para 262) "'Having answered the first three salient questions indicated by me earlier (page 238 of this report) I now arrive at what appears to be the central arena of the controversy. It was not disputed before us that the House of Commons undoubtedly has a very wide ranging power to expel any one of its members. This position has been unreservedly accepted by the petitioner himself. However, the crucial question that arises is whether this admitted power of expulsion vesting in the House of Commons is an integral and indivisible facet of its fundamental parliamentary privilege to provide for and regulate its constitution. The petitioner's firm stand is that this is so. According to him, this power of expulsion is also a mode or manner of exercising the basic privilege referred to above. In the alternative it is contended that the power of expulsion is a necessary adjunctive and ancillary power to effectuate the purpose of providing for and regulating the composition of the House of Commons. It is this rather intricate question to which I must now address myself. (para 263)" "...However, it appears plain therefrom that be also regards the power or expulsion in "essence as another facet of the basic parliamentary privilege of the House of Commons to provide for its own constitution and determine its membership. It is this rather intricate question to which I must now address myself. (para 263)" "...However, it appears plain therefrom that be also regards the power or expulsion in "essence as another facet of the basic parliamentary privilege of the House of Commons to provide for its own constitution and determine its membership. According to Sri Barnett Cocks it is this peculiar and uncanalised power by virtue of which the House of Common can expel members for undefined and unspecified reasons which may indeed be completely and wholly unrelated to any breach of privilege of the House or its contempt. Far from being a punitive measure of express punishment for contempt of the House, it is, to recall Professor Maitland's colourful illustration, an unguided power to expel one of its members on the ground that he is too ugly to adorn its august chamber and no Court would be able to give any relief to such a member. Finding on issue (d).—To sum up on this aspect of the case, it appears plain to me that on the authority of the British Constitutional authors, like Anson, Halsbury, Maitland, Wade and Phillips, Keir and Lawson, Ridges and including the opinion of May and his distinguished editor Sir Barnett Cocks, there is hardly any doubt that the power of the House of Commons to expel one of its members is rooted from time immemorial in its basic privilege to provide for and regulate its own constitution. It is indeed an integral and indivisible facet of the said privilege and of no other. (para 280)" "An analysis of the numerous cases of expulsion makes it manifest that the moment the House of Commons arrives at a conclusion that a member, in its collective opinion, is unfit to continue as such, it may forthwith expel him because it has the undoubted power of determining the identity of its membership as also the qualifications and disqualifications thereof. The patent example in this context is a conviction of a member for, a misdemeanour. Such a conviction admittedly does not operate as a disqualification for a member to continue in the House but cases are galore where the Home came to the conclusion that such a convicted person was not fit to continue in the House and on that ground a member was expelled for that reason. Such a conviction admittedly does not operate as a disqualification for a member to continue in the House but cases are galore where the Home came to the conclusion that such a convicted person was not fit to continue in the House and on that ground a member was expelled for that reason. Equally in innumberable other cases members convicted of misdemeanour were allowed to continue as such. Could one for a moment infer from this that the power of expulsion in the House of Commons was as a measure of punishment for misdemeanours ? Again the House of Commons has expelled members for such ethereal reasons that their conduct was unbecoming of an officer or unbecoming of a gentleman. Can one, therefore, say that the power of expulsion is a punitive power for punishing ungentleman like conduct and falling from the high honourable standards of an officer I believe, it would be farcical to suggest that the State Legislature in India may expel one of its members on the ground that in its view his conduct was unbecoming of something so undefinable as a gentleman. (para 297)" "It is manifest and not in fact disputed that the power of expulsion by the House of Commons has been exercised in innumerable cases entirely unrelated to questions of either contempt or a breach of privilege. Under what authority or source was then this power exercised? The only and indeed the plain answer thereto is that it was exercised by virtue of the House's basic privilege to provide for and determine its own composition. The power of expulsion, therefore, flows from that single source. It is indeed indivisible and cannot be cut down into different cross-sections. It is not possible to say, therefore, that though the power of expulsion undoubtedly arises from the privilege of determining its own composition yet a similar and identical power may be imagined to have its source in the power of the House to punish for its contempt. Once it is found and this seems to be undeniable that the origin, source and exercise of this power of expulsion stems from the basic privilege referred to above, there is no warrant for tracing the same to an altogether different context of the punitive powers against contempt. The punishments for contempt imposed by the House of Commons were clear and well-settled. The punishments for contempt imposed by the House of Commons were clear and well-settled. In exercise of that power, the House could admonish, reprimand, suspend from the service of the House for the session, impose fines and lastly commit the contemner to prison. Authoritative constitutional opinion is unanimous that the power of commitment was the keystone for the maintenance of the privileges of Parliament. (para 298)" "The uncanalised power of expulsion in the House of Commons stems from its ancient and peculiar privileges of determining its own composition which in turn arises for long historical reasons and because of the unwritten Constitution in England. In the ultimate analysis and in the forceful and pictureseque phraseology of Maitland, the House of Commons can and may expel one of its members for being ugly, and no Court in England would be able to give him any relief. Could one infer from this situation that the power of expulsion was a punitive power for a moment that the State Legislatures in India can also enjoy or exercise the uncanalised and unguided power of expulsion which Maitland unreservedly and rightly attributed to the House of Commons in England? I am firmly of the view that no such power can descend to the State Legislatures in India in view of the admitted position that the peculiar privilege of providing for and regulating its constitution which undoubtedly vests in the British House of Commons is by the very nature of things unavailable to our Legislatures. (Para 300)" "I, therefore, conclude that the statement in May's Parliamentary Practice on the point that the privilege of providing for and regulating its own constitution by the House of Commons being expressed in three ways is merely illustrative and not exhaustive. The power of expulsions is an additional mode of exercising that basic privilege. Even otherwise the power of expulsion can equally be well visualised as an adjunctive or necessary procedural power to effectuate the basic purpose of that very privilege. (Para 310)" 12.5. The power of expulsions is an additional mode of exercising that basic privilege. Even otherwise the power of expulsion can equally be well visualised as an adjunctive or necessary procedural power to effectuate the basic purpose of that very privilege. (Para 310)" 12.5. On the other hand, I respectfully agree with the views expressed by Narula, CJ when in his dissenting judgment he observes as follows:- "The main ground on which the petitioner has vehemently contended that the power or privilege to expel any member for contempt vests in the Commons not as a part of its disciplinary jurisdiction or corrective remedy or to get rid of a person who is considered by the House to be unfit to remain a member thereof, but merely and solely as an incident of the privilege of the House of Commons to constitute itself is that admittedly the power of the House of Commons to constitute itself cannot and is not available to the Indian Legislatures, and if the power to expel does not reside in the Commons independent of the power to constitute itself, it would naturally not be available to the Indian Legislatures. That argument has stemmed from and is based on the following passage (paragraph 45 of the A.I.R. report) from the opinion delivered by the Supreme Court in the U.P. Legislature case:- "The House of Commons also claims the privileges in regard to its own constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of a parliament, secondly, by the trial of controverted elections and thirdly, by determining the qualifications of its members in cases of doubt. This privilege again, admittedly, cannot be claimed by the House the U.P. Legislative Assembly). Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House." Basing myself on the opinion of the Supreme Court in the U.P. Legislature case, and even independently thereof, I have already held on point (a) above that the privilege of the Commons in regard to its own constitution is not available to the Indian Legislatures. On that there neither is nor there can be any dispute between the parties. On that there neither is nor there can be any dispute between the parties. The only controversy in this regard has raged around the issue whether the privilege in regard to its own constitution is expressed by the Commons only in the three ways mentioned by the Supreme Court (reproduced above) or the three ways enumerated by their Lordships are merely illustrative of the various other ways in which the Commons might have expressed, claimed or enjoyed the said privilege. The contention of the learned Advocate-General has been that though in giving illustrations of the powers and privileges of the Commons which in the nature of things cannot be claimed or enjoyed by the Indian Legislatures, the Supreme Court did not give an exhaustive list of such powers and privileges, but so far as the manner of expression of the privilege to constitute itself is concerned, the three ways mentioned by the Supreme Court are exhaustive and are not merely illustrative. On the other hand the petitioner originally canvassed the proposition that the privilege of the Commons in regard to its own constitution is expressed in various ways out of which only three have been mentioned by the Supreme Court. In his reply to the respondents' argument the petitioner has, however, said that in ultimate analysis the power to constitute itself is expressed by the Commons only in the three ways mentioned in May (quoted below) and the fourth way mentioned by Anson is a mere extension of the three ways and is really a part thereof and not independent of the same, (para 80)" "May states in this respect (extracted from page 108 of the 18th (1971) edition:- "It is a privilege of the House of Commons to provide for its own proper constitution as established by law. The privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of a parliament, secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its Members in cases of doubt." There is no doubt that the Supreme Court has based its relevant observations in paragraph 45 of its opinion on the abovequoted passage from May. The language of the passage in Mayas well as in the opinion expressed by the Supreme Court in the U.P. Legislature case does not in my opinion lead to any definite conclusion one way or the other whether the privilege to provide for its own constitution is expressed by the Commons only in the three ways referred to above or possibly in any other manner also. On several occasions during his arguments the petitioner sought to draw support for his proposition about there being a distinct fourth way of expression of the said privilege by the Commons from the following passage in the Law and Custom of the Constitution by Anson, Volume I (1909 Edition), Page 146, corresponding to page 158 of the 1922 Edition:- "But there are other privileges not specially mentioned on this occasion though regularly asserted and enforced by the House. These are the right to provide for the due constitution of its own body, the right to regulate its own proceedings, and the right to enforce its privilege by fine or imprisonment or in the case of its own Members by expulsion." The petitioner originally wanted to construe the above passage to suggest that the right of the House of Commons to expel its own Members in order to enforce its privileges is one of the manners in which the right to provide for its own constitution is expressed. The petitioner himself has not ultimately stuck to that position. The ultimate position taken up by the petitioner was that expulsion is one of the manners in which the Commons determine the disqualifications of a member inasmuch as it comes to a conclusion that he is not fit to sit in the House, and, therefore, expels him. From this point of view, contended the petitioner, the power of expulsion is exercised by the Commons for the purpose of determining the qualification or disqualifications of its members in cases of doubt. So construed, argued the petitioner, it may even be held that the privilege in question is expressed by the Parliament in three ways. He, however, submitted that if expulsion cannot be brought within the purview of "determining the qualifications of its members in cases of doubt", then it must be held that expulsion is a distinct fourth way in which the Commons expresses its privilege to provide for its own constitution. He, however, submitted that if expulsion cannot be brought within the purview of "determining the qualifications of its members in cases of doubt", then it must be held that expulsion is a distinct fourth way in which the Commons expresses its privilege to provide for its own constitution. Anson at page 146, of Volume I in the paragraph that just precedes the one that is already quoted states:- "Next we come to the privileges themselves. Of these, some are specifically asserted and demanded of the Crown at the commencement of every parliament. (Then those privileges which are specifically asserted and demanded are enumerated.)" Thereafter the author goes on to deal with the "Privileges not demanded". It is under that heading that a mention has been made of several privileges which are not specifically demanded of the Crown at the commencement of every parliament. The three privileges referred to under that heading are (i) the right to provide for the due constitution of its own body, (ii) the right to regulate its own proceedings, and (iii) the right to expel its members in order to enforce its privileges. In this passage Anson is referring to three distinct privileges. The right to enforce its privileges either by imposition of fine or by commitment to prison (both of which punishments can be awarded both to the members of the House and to outsiders) or by expulsion (in case of members only) is not a part of any other privilege but is by itself a separate and independent power or privilege. To enforce a privilege against a member by expelling him for breach of such privilege is not a way of expressing the power of the Commons to constitute itself. So far as the details of the privilege of the right to constitute itself are concerned, the same have been mentioned by Anson under separate heading at page 167 of the 1909 Edition. He states there under the heading "Right to provide for its proper Constitution" as below : "One of these privileges is the right to provide for the proper constitution of the body of which it consists by issue of writs when vacancies occur during the existence of a parliament, by enforcing disqualification for sitting in parliament, and until 1868 by determining disputed elections." Expulsion is not at all mentioned in that context. Though expulsion could no doubt be resorted to and may indeed have been resorted to by the Commons with a view to preserve or change its constitution, it would not exclude or impinge upon the independent privilege of the Commons to punish a member for breach of privilege or for contempt by expelling him from the House. The petitioner also referred to page 172 of Anson (Fourth Edition) where it has been stated under the heading "unfitness to serve and cause of expulsion" that "cases may arise in which a member of the House without having incurred any disqualification recognised by law has so conducted himself as to be an unfit member of a Legislative Assembly. For example conviction for misdemeanour is not a disqualification by law though it may be disqualification. In fact and the House of Commons is then compelled to rid itself of such a member by process of expulsion. But expulsion, although vacates the seat of the expelled member, does not create a disqualification and even if the constituency does not agree with the House as to the unfitness of the member expelled, they can relect him From this passage the petitioner wants to infer that when expulsion is resorted to by the Commons to rid itself of a member who may be fully qualified but is found to be unfit to continue as a member of the House, it is so done in exercise of the privilege of the Commons to constitute itself. The petitioner has stressed that such action can only be taken on a member having been convicted for misdemeanour. In so doing the petitioner, however, unfortunately loses sight of the words "for instance" 'which precede the particular illustration of exercise of power of expulsion by the Commons in Anson. A plain reading of the passage leaves no doubt that it by no means excludes the power of the Commons to get rid of a member who is considered to be unfit to continue to be its member on any ground other than of conviction for misdemeanour. The petitioner also appears to lost sight of the fact that the power of inflicting punishment for breach of privilege has been separately dealt with even by Anson (at page 177 onwards of the Fourth Edition). The petitioner also appears to lost sight of the fact that the power of inflicting punishment for breach of privilege has been separately dealt with even by Anson (at page 177 onwards of the Fourth Edition). The punishments which are awarded to members or non-members is dealt with by Anson under separate headings such as "admonition", "reprimand", "contempt", "fine", and "expulsion". The discussions under the last mentioned item in Anson starts with the following passage:- "In the case of its own members the House has a stronger mode of expressing its displeasure. It can by resolution expel a member........." Great emphasis has been laid by the petitioner on the opening line of the next passage at page 178 of Anson. There it is stated:- "But expulsion is a matter which concerns the House itself and its composition and amounts to no more than an expression of opinion that the person expelled is unfit to be a member of the House of Commons." I fail to understand how the petitioner claims to draw up strength from the above sentence. Of course expulsion concerns the House itself as the punishment of expulsion cannot be inflicted on a person who is not a member of the House and the composition of the House may be affected by the expulsion of a member. That does not, however, mean that the reverse of the proposition is also necessarily correct that is, the power of expulsion is exercised only with a view to regulate the composition of the House. (Para 81)" The above discussion reveals that the privilege of the Commons to constitute itself is expressed in the three ways mentioned by May and reproduced by the Supreme Court in the D.P. Legislature case, and one of the ways in which the said privilege may be expressed may no doubt in certain circumstances be exercised by expelling a member of the House. That does not, however, rule out the existence and exercise of the privilege of expel1ing a member by way of punishment for misconduct or contempt of the House. That does not, however, rule out the existence and exercise of the privilege of expel1ing a member by way of punishment for misconduct or contempt of the House. I would, therefore, hold that even if the power to constitute itself can be expressed by the Commons in any number of other ways including resorting to expulsion of its members, it would make no material difference as the existence of one ground on which expulsion can be ordered by the Commons cannot by itself exclude or abrogate the independent power of the House to punish a member by expelling him, a punishment which cannot be inflicted on a non-member. (Para 82) "It is clear from the above-mentioned Articles of the Constitution and from the relevant provisions of the Representation of the People Act enacted by the Parliament under Article 327 of the Constitution that due constitution of a State Legislature, the qualifications and disqualifications of its members, the manner in which and the conditions on which they can become members and cease to be members, the duration for which they are entitled to remain members and all other ancillary matters relating to the State Legislatures in India are provided for in detail in the Constitution and the relevant statutes and none of these matters is left to be determined by the Legislature itself." (para 106). "For the foregoing reasons, I am constrained to decide point against the petitioner and hold that independent of the power, privilege of the House of Commons to constitute itself it did have and exercised at the time of the coming into force of our Constitution the power to expel its members by way of punishment for misconduct or for breach of privilege or for committing contempt of the House." (para 114). 12.6. The legislatures in this country may not have the power to provide for or regulate their own constitution, but that is quite different from the question as to whether the legislatures have the power to take any action against their members including the power of expulsion. I am unable to accept the proposition that the power of expulsion vesting in the House of Commons was an integral and individual facet of its fundamental parliamentary privilege to provide for its constitution as held by the majority judgment. I am unable to accept the proposition that the power of expulsion vesting in the House of Commons was an integral and individual facet of its fundamental parliamentary privilege to provide for its constitution as held by the majority judgment. I am unable to accept the proposition that while the power of expulsion was being exercised by the House of Commons, when the members were found guilty of misconduct, the House was not exercising such power as a measure of punishment or a breach of privilege or of its contempt but that it was a plain exercise of the privilege to control and determine its own composition. 12.7. Accordingly, I hold that such power of expulsion was conferred on the Legislatures in India by the latter part of Article 194(3). 12.8 In this context reference may be made to some of the passages of the Madras judgment, which are quoted hereinbelow:- "The argument on behalf of the petitioner in these petitions has really proceeded on the footing that the House of Commons had the privilege of expelling a member, but, that such a power of expulsion properly forms part of the privilege of the House of Commons in regard to its now constitution. The argument it that though the House of Commons had the privilege in regard to its own constitution, Such a privilege is not available to a Legislative Assembly in India because the manner and the procedure for its constitution are regulated by the express provisions of the Constitution of India and the provisions of the Representation of the People Act. The argument it that though the House of Commons had the privilege in regard to its own constitution, Such a privilege is not available to a Legislative Assembly in India because the manner and the procedure for its constitution are regulated by the express provisions of the Constitution of India and the provisions of the Representation of the People Act. xx xx xx The argument is that the privilege of expelling a member of the House of Commons has been described by May in his book on Parliamentary Practice and by other authors as being a part of the privilege in regard to the constitution of the House of Commons and since a Legislature in India whose constitution is governed by the provisions of the Constitution and the provisions of the Representation of the People Act, cannot claim any privilege with regard to its own constitution, the power of expulsion cannot be said to be a privilege exercisable by the Legislative Assembly in India." (para 35) "The question which necessarily falls for consideration therefore is whether the power of expulsion exercised by the House of Commons is to be wholly and exclusively treated as a part of the privilege in regard to its constitution. xx xx xx Those observations cannot be read as laving down that as long as a power is not expressly recognised by the English Courts that the power or privilege did not vest in the House of Commons and consequently that power or privilege was also not available to a Legislature in India. It is unthinkable that every power or privilege of the House of Commons or the occasion of its exercise would be tested in a court of law in England and until so tested the power or privilege was not available. There is therefore no substance in the contention that since the power of expulsion is not expressly recognised by the Courts in England, that power was not available to the House of Commons and consequently was not available to the legislature in India. Indeed, several instances of expulsion have occurred in the history of the House of Commons and that itself shows that the power of expulsion was repeatedly exercised. (para 37)" "... ...The disqualifications referred to by May are disqualifications for being a member of the House. Indeed, several instances of expulsion have occurred in the history of the House of Commons and that itself shows that the power of expulsion was repeatedly exercised. (para 37)" "... ...The disqualifications referred to by May are disqualifications for being a member of the House. What we are dealing with is not a case where an elected member is being expelled because he has incurred a disqualification but that Legislative Assembly has thought it fit to take the view that the conduct of the elected members of the Legislative Assembly in burning a part of the Constitution rendered them unfit to continue as members of the House." (Para 39)" "... ...May has therefore preferred to treat the power of expulsion as a part of the power of punishment." (Para 40)" "It is necessary to point out that in Ridges' Constitutional Law, Eighth Edition, the learned Author has grouped under two heads the lights and privileges of the House of Commons. At Page 61, the learned Author observed as follows: xx xx xx The second group comprises those not demanded by the Speaker. These are- xx xx xx (e) The right to enforce observation of its privileges by fine, imprisonment or expulsion." The learned Author has treated the power of expulsion as a power incidental to the right to enforce observation of its privileges by the House of Commons. The learned Author at page 71 observes : The right to enforce its privileges, "This the House may do by admonition, reprimand, commitment to the custody of the Serjeant-at-arms or to prison, fine......or expulsion if the offender is a member." (Para 41) "What is important, is that these observations of the learned Author have been quoted with approval by the Supreme Court in M.S.M. Sharma's case AIR 1959 SC 395 . In paragraph 18 of the judgment referring to the second head reproduced above, the Supreme Court observes as follows: "The second head comprises (i) the right to provide for the due composition of its own body. (ii) the right to regulate its own proceedings, (iii) the right to exclude strangers, (iv) the right to prohibit publication of its debates and (v) the right to enforce observation of its privileges by fine, imprisonment and expulsion. (Ridge's Constitutional law, 8th Ed., p. 61, also Halsbury's laws of England, 2nd Edn. Vol. 24, p. 351)." (Para 4l). (ii) the right to regulate its own proceedings, (iii) the right to exclude strangers, (iv) the right to prohibit publication of its debates and (v) the right to enforce observation of its privileges by fine, imprisonment and expulsion. (Ridge's Constitutional law, 8th Ed., p. 61, also Halsbury's laws of England, 2nd Edn. Vol. 24, p. 351)." (Para 4l). "......It is true that this paragraph dealing with the expulsion of a member has been included as a part of discussion of the power of House of Commons to regulate its own composition. It is however to be further pointed out that expulsion is also expressly dealt with by the same learned author as a part of the power of inflicting punishment for breach of privilege (see page 186). Dealing with different forms of punishment awarded by the House of Commons, the learned author has observed at page 187 as follows: "In the case of its own members, the House has a stronger mode of expressing its displeasure. It can by resolution expel a member, and order the Speaker to issue his warrant for a new writ for the seat from which the member has been expelled. But it cannot prevent the re-election of such a member by declaring him incapable of sitting in that Parliament...... But expulsion is a matter which concerns the House itself and its composition, and amounts to no more than an expression of opinion that the person expelled is unfit to be a member of the House of Commons. The imposition of a fine would be an idle process unless backed by the power of commitment. It is, then, the right of commitment which becomes, in the words of Sir E. May, 'the Keystone of Parliamentary Privilege'. It remains to consider bow it is exercised and by what right". (Para 44) "The above observations of the learned Author themselves will show that notwithstanding the fact that the matter relating to expulsion concerns the House itself and composition, the learned Author himself has also treated has a stronger mode of expressing the displeasure against a particular member for his conduct. (Para 44) "The above observations of the learned Author themselves will show that notwithstanding the fact that the matter relating to expulsion concerns the House itself and composition, the learned Author himself has also treated has a stronger mode of expressing the displeasure against a particular member for his conduct. Similar observations that expulsion of members who are unfit to serve is included as a part of the right of the House to regulate its own composition, are to be found in Constitutional and Administrative law by Hood Phillips, 5th Edition at page 205 and in Constitutional and Administrative Law by Wade and Phillips, Ninth Edition, at page 198. But it is not possible for us to treat such a power of expulsion as not being available to the Indian Legislature merely on the ground that such powers and privileges, which originally vested in the House of Commons as a part of its right to provide for its own proper constitution as established by Jaw, are negatived by the express provisions of the Constitution of India. The position of law as it appears to us is that in substance the power of expulsion apart from being a part of the power of the House of Commons to regulate its own composition, was essentially a power which was in the nature of exercising a disciplinary control over the membership of the House with a view to see that such of the members who are unfit in the opinion of the House to continue to be its members could be expelled from membership. What is important is not that the power of expulsion was treated as a part of the power of the House of Commons to regulate its own composition, but that the power of expulsion was in fact exercised by the House of Commons also as a part of the power to punish a member." (Para 45). "Baker's case establishes the fact that the House of Commons was exercising its privilege of expelling members in respect of conduct which was not related to the House itself and which itself did not in any way involve his capacity as a member of the House. "Baker's case establishes the fact that the House of Commons was exercising its privilege of expelling members in respect of conduct which was not related to the House itself and which itself did not in any way involve his capacity as a member of the House. The above illustrations will clearly indicate that the power of expulsion was exercised by the House of Commons in respect of conduct or act done outside the House and even though the act was not done in the capacity of a member of the House. This power thus subsisted not only at the commencement of the Constitution, but in the absence of anything to show that this power was given up between the commencement of the Constitution and the commencement of the Constitution (Forty-fourth Amendment) Act, such a power must be held to be subsisting at the material time for the purposes of Art. 194 (3) of the Constitution." (Para 60) "The power of expulsion apart from being a part of the power of the House of Commons to regulate its own composition, was essentially a power which was in the nature of exercising a disciplinary control over the membership of the House with a view to see that such of the member who are unfit in the opinion of the House to continue to be its members, could be expelled from membership. What is important is not that the power of expulsion so exercised was a part of the powers of the House of Commons to regulate its composition but that the power of expulsion was in fact exercised by the House of Commons also as a part of the power to punish a member by expelling him." (para 112(8)). 13. Power of Expulsion : Whether Negatived by or Inconsistent with any Provisions of the Constitution. 13.1. The next question is whether there is any provision in the Constitution particularly Articles 170, 171, 173, 190 and 191 thereof, which negatives such power and privilege including the power of expulsion of one of its members or with which such power or privilege can be said to be inconsistent. 13.2. Articles 170 and 171 provide for composition of Legislative Assemblies and Councils, respectively, for different States. Articles 190 and 191 refer to certain disqualifications upon the happening of which a member of an Assembly or a Council ceases to be a member. 13.2. Articles 170 and 171 provide for composition of Legislative Assemblies and Councils, respectively, for different States. Articles 190 and 191 refer to certain disqualifications upon the happening of which a member of an Assembly or a Council ceases to be a member. Apart from some specified disqualifications, sub-clause (e) of Clause (1) of Article 191 also empowers the Parliament to make any law providing for any additional ground for disqualifications upon which a member would cease to be a member. So far as sub-clause (e) is concerned, it is to be noticed that no such power is conferred on any legislature of a State. As a matter of fact, not even any legislation can be made by any State Act providing for such disqualification. It is left to the Parliament solely and exclusively which can only be done by passing a law like any other Central Act and not merely by way of passing any resolution. Instances of such disqualification are provided by Sections 8 and 8A of the Representation of the People Act, 1951, which we have quoted above. However, the question of disqualification under sections 190 and 191 cannot be mixed up with the question of power of punishment exercised by legislature of a State which relates to a question of privilege of the individual House concerned. Accordingly, in my opinion, such power of expulsion exercised by legislature of a State for breach of any of its privileges, cannot be said to be violative of Articles 170, 171, 173, 190 or 191 of the Constitution. It does not relate to "composition" or "disqualification." 13.3. Any other interpretation would amount to taking away the power conferred on a legislature by Art. 194 (3). The power to take action for breach of its privilege is one of the basic and fundamental powers of a legislature. Depriving the legislature of such power would amount to depriving the same of one of its important powers. It is not merely a power of the House; it is also one of the privileges of the House. The exercise of such power is one of the essential features of a Legis1ature. Depriving the legislature of such power would amount to depriving the same of one of its important powers. It is not merely a power of the House; it is also one of the privileges of the House. The exercise of such power is one of the essential features of a Legis1ature. As the powers conferred under Clauses (1) and (2) are essential for the proper and independent functioning of a legislature, the right to exercise its powers and privileges as contemplated in clause (3) is equally, if not more, important for such proper and effective functioning of a legislature This would include the power to take action for breach of its privilege. If that is so, I see no reason as to why one of such powers, i.e. power of expulsion, is to be excluded for that purpose. This has nothing to do with "disqualification" within the meaning of Articles 190 and 191. 13.4. There is another aspect of the matter. If this is to be treated as a "disqualification" within the meaning of Article 191, then, if any question arises as to whether a member has ceased to be a member, this has to be referred to the Governor under Article 192, whose decision shall be final. It certainly could not be the intention of the framers of the Constitution to make the powers of a legislature to take action in respect of its privileges, subject to the decision of the Governor. 13.5. In this connection, reference may be made to paragraphs 18 and 24 of M. P. case which are quoted hereinbelow:- "The whole question then is reduced to this—Whether the exercise of the power by the State Legislature to expel a member rendering his seat vacant which power was admittedly and undoubtedly enjoyed by the House of Commons at the commencement of the Constitution and recognized by the English Courts, would be incompatible with any provision of the Constitution or the structure of the Constitution. The grounds which learned counsel for the petitioners urged for a restrictive construction of Article 194 (3) denying to the State Legislature the power of expulsion are : first, that the House of Commons exercised this power because of its privilege to regulate its own constitution and that under our Constitution the State Legislature has no power to regulate its own constitution; and, secondly that the vacation of a seat of a member once elected can only be in the circumstances mentioned in Articles 190 and 191 and that these articles do not provide for the vacation of a seat of a member by his expulsion from the House. (para 18)" The second ground resting on Articles 190 and 191 of the Constitution urged by learned counsel for the petitioners for denying to the State Legislature the power to expel a member so as to render his seat vacant is also not well founded. Articles 190 and 191 deal with disqualifications of members and the result of the disqualifications. They are not general provisions dealing exhaustively with all cases of vacation of seats. When a member is expelled by a House, he does not become subject to any disqualification. He is entitled to contest the election again and it is open to his constituency to re-elect him. The exercise of the power of expulsion by the Legislature does not create a disqualification. Thus articles 190 and 191 have no bearing in the construction of article 194 (3) and do not in any way touch the power of the State Legislature to expel a member so as to render his seat vacant. Merely because those articles do not provide for the seat of a member becoming vacant on his expulsion, it does not follow that the Legislature has no power to expel a member and render his seat vacant. Indeed, as when a member is expelled, his seat becomes vacant as a result of his expulsion and not because of any disqualification, no provision for vacation of seats as a result of expulsion could have been made in articles 190 and 191 which deal with disqualifications of members. Indeed, as when a member is expelled, his seat becomes vacant as a result of his expulsion and not because of any disqualification, no provision for vacation of seats as a result of expulsion could have been made in articles 190 and 191 which deal with disqualifications of members. Learned counsel for the petitioners said that the vacation of a seat of a member as a result of his expulsion by the House of Commons was only the consequence of the exercise of the power and not a privilege in itself; and that, therefore, the M. P. Assembly could not claim the privilege of creating a vacancy by expelling a member. The argument is altogether fallacious. It is true that the privilege or right which the House of Commons has is of expelling a member and the vacation of a seat is only the result of expulsion. But the M. P. Assembly is not claiming any privilege of creating a vacancy and of expelling a member for that purpose. It is also not claiming the right to issue a direction for filling a seat when a member is expelled. If a member's seat becomes vacant as a result of his expulsion, then the seat is filled in accordance with the Representation of the Peoples Act, 1951 by holding a bye-election. Section 150 of the Representation of the Peoples Act does not contain anything to rule out the application of that provision to a case where the seat of a member becomes vacant as a result of his expulsion. If the learned counsel by his argument intended to suggest that the M. P. Assembly could expel a member but could not make his seat vacant and thus exclude him from the sittings of the house for all time, then the suggestion must be rejected as altogether untenable. If it were to be accepted, it would mean recognizing in the M. P. Assembly a power which did not vest even in the House of Commons at the material time. A member cannot be expelled by suspending him from the service of the House for all time. As the Privy Council said in (1886) 11 A. C. 197 at page 205. "To argue that expulsion is the greater power, and suspension the less, and that the greater must include all degrees of the less, seems to their Lordships fallacious. A member cannot be expelled by suspending him from the service of the House for all time. As the Privy Council said in (1886) 11 A. C. 197 at page 205. "To argue that expulsion is the greater power, and suspension the less, and that the greater must include all degrees of the less, seems to their Lordships fallacious. The rights of constituents ought not, in a question of this kind to be left out of sight. Those rights would be much more seriously interfered with by an unnecessarily prolonged suspension than by expulsion, after which a new election would immediately be held." In my opinion, it cannot be contended with any degree of force that as there is no express provision in the Constitution providing for a member's seat becoming vacant as a result of his expulsion by the State Legislature, the right or privilege of expelling a member cannot be claimed by the Legislature. So far as the exercise of the power of expulsion by the State Legislature is concerned, article 194 (3) operates quite independently of articles 190 and 191 or any other article. There is nothing in the Constitution affording any ground or justification for subtracting from the powers, privileges and immunities declared is belonging to the State Legislature the power of expelling a member having the result of making vacant the seat of the member expelled. The argument based on articles 190 and 191 cannot, therefore, be accepted. (Para 24). 13.6. Reference may be made in this connection also to paragraphs 123 to 126 of the minority judgment of Narula CJ in Punjab and Haryana case, some portion of which is set out hereinbelow:- "The only other argument advanced by the petitioner (excepting that of procedural irregularities or alleged illegalities and of malafides) was that a State Legislature cannot expel a member as that would result in the vacation of his seat which is contrary to the exhaustive provisions contained in Artic1es 190 and 191 of the Constitution which alone contain the circumstances in which the seat of a sitting member in a State Legislature can be vacated before the dissolution of the House. (para 123)" "In the first two eventualities [(a) and (b) above], the seat shall become automatically vacant, but in the third one [(c) above], that is in clause (4) of Article 190, the House may not declare his seat to have become vacant. The disqualifications for membership referred to in Article 190 (3) (a) have been enumerated in clause (1) of Article 191. Admittedly expulsion of a member is not mentioned amongst the five contingencies in which any person would stand disqualified from membership. The argument of the petitioner was that the circumstances in which the seat of a sitting member can become vacant which have been listed in Articles 190 and 191 of the Constitution are exhaustive and the State Legislature cannot add to the said list by declaring a member's seat vacant by expulsion. I am unable to find any force in this contention. Article 191 enumerates only the disqualifications. Expulsion is not a disqualification as an expelled member can (in the same way as in England) seek re-election. Therefore, expulsion could not possibly be listed in Article 191 as a disqualification. The only contingencies listed in Article 190 of the Constitution are those in which the seat of a member would not have become vacant unless a statutory provision had been made in that behalf. There are certain situations in which it cannot possibly be said that the seat of a member has not become vacant. The most glaring instance of such a contingency is of death. All the same death has not been mentioned in Article 190. That does not mean that even if a member dies his seat does not become vacant. Similarly if a member is expelled from the House, it cannot possibly be imagined or said that notwithstanding his expulsion he continues to be a member of the House. In my opinion it would have looked ridiculous to provide in Article 190 that the seat of a member would become vacant on his death or on his expulsion. This goes without saying. Some light may be drawn from the amended Article 194(3) which has not yet come into force. The powers and privileges of a State Legislature shall be those which it may claim. Can it be said that if after the amendment, a Legislature expels its member for misconduct or contempt of the House, the action would be unauthorized. Some light may be drawn from the amended Article 194(3) which has not yet come into force. The powers and privileges of a State Legislature shall be those which it may claim. Can it be said that if after the amendment, a Legislature expels its member for misconduct or contempt of the House, the action would be unauthorized. My answer to that question is a categorical 'No'. The intention of the petitioner based on this argument, therefore, fails. (para 124)" "The argument (dealt with elsewhere also) about expulsion being abhorrent to the electorate's right of being represented by a person of its choice for no less than the period of five years provided in the Constitution is also fallacious as that right is subject to the other provisions of the Constitution and is not like the rights enumerated in Part III thereof (fundamental rights). There are various circumstances in which the period can be curtailed. Some of the examples of those contingencies are:- (i) on the failure of the constitutional machinery and dissolution of the House; (ii) on the happening of any of the four things mentioned in Article 190; (iii) on suspension from the House in the beginning of every session or being committed to the prison most of the time, powers which were admitted by the petitioner to exist in the bands of State Legislature; (iv) on death; (v) on expulsion (para 125)" "In the U. P. Legislature case the Supreme Court has advised reconciliation of the powers and privileges of the House even with fundamental rights by following the principle of harmonious construction and not striking down the power out of hand, the right of representation for a fixed period is not as sacrosanct as a fundamental right. (para 126)" 13.7. In this context, I may also refer to the minority judgment delivered separately by Harbans Lal, J. (paras 414 to 422) some of which are quoted hereinbelow:- "From the aforesaid discussion, my considered opinion is that the powers and privileges of the House of Commons which have devolved upon the State Legislatures under Article 194(3) of Constitution include the power of expulsion. (para 414)" "According to the petitioner, Articles 190 and 191 of the Constitution are exhaustive of the modes of vacation of seats in the Legislatures. (para 414)" "According to the petitioner, Articles 190 and 191 of the Constitution are exhaustive of the modes of vacation of seats in the Legislatures. If the intention of the Constitution makers was that a seat could also fall vacant as a result of the exercise of power of expulsion by the legislature, the same would have been expressly mentioned in these two articles. It was also contended that the Constitution has guaranteed the basic right to the people who are the real sovereign to participate in the governance of the country by ejecting their representatives to the Parliament and the State Legislatures for a fixed term. Unless Legislatures are dissolved or suspended in accordance with the other provisions of the Constitution, this right of representation can be denied to the people only by the methods which have been provided under Articles 190 and 191 and in no other manner. Thus, the power of expulsion of the Legislature is in direct conflict with the fundamental and basic right of franchise and representation. In these circumstances, this right even if H is held that the same is one of the powers and privileges of the Legislature as envisaged under Article 194 (3) must give way to Articles 190 and 191 which provide for the situations in which the seat can be vacated. It was also asserted that the power of expulsion in the Legislatures is against the basic scheme of the Constitution. These contentions, though attractive on the face of it do not have foundation. While construing Articles 190 and 191, we cannot lose sight of the scheme of various clauses of Article 194. In clause (1) of Article 194, freedom of speech in the legislature has been guaranteed, but this has been made "subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of the Legislature". However, clause (2) by which the freedom of vote by the members of the Legislature has been guaranteed and clause (3) by which powers, privileges and immunities have been conferred on the State Legislatures and their members not been made subject to any other provision of the Constitution. The same cannot be interpreted to be accidental or inadvertent. Articles 190 and 191 are just followed by Article 194. The same cannot be interpreted to be accidental or inadvertent. Articles 190 and 191 are just followed by Article 194. The framers of the Constitution while enacting Article 194(3) must be absolutely conscious that provision had been made for vacation of seats in certain circumstances in the Legislatures and inspite of that, powers and privileges were conferred on the State Legislature. If the purpose was that clause (3) of Article 194 was to operate subject to Articles 190 and 191, the same would have been specifically provided. While interpreting clause (1) of Article 194 vis-a-vis Article 19(1)(a), the Supreme Court in the Reference case (A.I.R. 1965 Supreme Court 745) held:- "If all that the legislators were entitled to claim was the freedom of speech and expression enshrined in Article 19(1)(a) it would have been unnecessary to confer the same right specifically in the manner adopted by Article 194(1) and so it would be legitimate to conclude that Article 19(1)(a) is not one of the provisions of the Constitution which controls the first part of clause (1) of Article 194." On the parity of reasoning, it can be safely and justifiably interpreted that it was the intention of the Constitution makers that Article 190 and 191 will not control clause (3) of Article 194. (para 416)." Thus viewed from any angle, the power of expulsion as provided in Article 194(3) is not in any way affected or negatived by Articles 190 and 191. (para 422)." 13.8. Reference may also be made in this connection to some of the observations made in the Madras judgment (paragraphs 70 to 87, 112 (11), some of which are set out hereinbelow:- The next question which we must consider is whether there is any provision in the Constitution which negatives this power or with which the power can be said to be inconsistent. The argument advanced is that Articles 190 and 191 read with Section 8 of the Representation of the People Act must be treated as comprehensive with regard to the vacation of seat by an elected member and with regard to the disqualification for membership of a Legislature Assembly. The argument advanced is that Articles 190 and 191 read with Section 8 of the Representation of the People Act must be treated as comprehensive with regard to the vacation of seat by an elected member and with regard to the disqualification for membership of a Legislature Assembly. It is further argued that breach of an oath taken by an elected member is not one of the disqualification either under Art. 191(1) or Section 8 of the Representation of the People Act and yet by the impugned resolution of the Assembly, the elected member is being made to vacate his seat treating the breach of faith as a disqualification. Reliance has been placed on a Division Bench decision of the Kerala High Court in Kallara Sukumaran v. Union of India, AIR 1986 Ker 122 in which the Division Bench has taken the view that the Constitution has defined the disqualifications of a member of the Assembly and it is not in the power of court to change or superadd to them, there being no power either expressly conferred or inferable by necessary implication by the Constitution. It was further held that even the violation of oaths taken under Art. 164 (3) and 183 cannot operate as disqualification as it would amount to adding to the grounds of disqualification provided under the Constitution and it was impermissible for the court to import an additional ground or to imply an additional disqualification." (para 70) "There are two fallacies in this argument. There can be no dispute that it is not open either to the House or to the Court to treat a person as disqualified on a ground which does not fall within the provisions of Arts. 190 and 191 read with S. 8 of the Representation of the People Act. The proposition set out by the Division Bench of the Kerala High Court in Sukumarans' case ( AIR 1986 Ker 122 ) is unexceptionable. It has however to be pointed out that the ceasing of the petitioners as members of the Legislative Assembly has not resulted from incurring any disqualification. We must recognize the fact that Arts. 190 and 191 and Art. 194(3) have to be construed in a harmonious manner. It has however to be pointed out that the ceasing of the petitioners as members of the Legislative Assembly has not resulted from incurring any disqualification. We must recognize the fact that Arts. 190 and 191 and Art. 194(3) have to be construed in a harmonious manner. We have also referred in sufficient detail to the manner in which Art. 194(3) was deliberately framed because the privileges vesting in the House of Commons could not have been catalogued. Notwithstanding the specific provisions of Arts. 190 and 191 the Constituent Assembly by incorporating Art. 194 (3) clearly recognized the power of expulsion of a member of the Legislature. Vacation of seat of the expelled member therefore does not occur as a result of incurring a disqualification as contemplated by Art. 190 or 191 (1), but is the direct result of the exercise of a privilege by the legislature which is neither controlled by the provisions of Arts, 190 or 191 (1) of the Constitution. It will not therefore be correct to say that a new head or disqualification was being added. The seat has become vacant because of the expulsion which has been ordered in the exercise of a privilege which vested in the Assembly, notwithstanding the provisions of Arts. 190 and 191 (1) read with Section 8 of the Representation of the People Act. The fact that expulsion is not mentioned as one of the grounds on which the seat of an elected member could become vacant did not affect the power of expulsion vested under Art. 193 (3), 194 (3) of the Constitution of India. This expulsion does not disqualify the expelled members from seeking reelection." (Para 71) "Some reference was also made to the provisions of Article 172 of the Constitution of India Art. 172 (1) of the Constitution of India merely provides that every Legislative Assembly of every State unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer the expiration of the said period of five years shall operate as a dissolution of the Assembly provided. Now it is difficult to see how this Article even can be of any assistance." (para 73) "An argument was also advanced that expulsion of an elected member results in the constituency which he represented going unrepresented and such a result must be avoided and this could be done only by holding that this seat could become vacant only if the disqualifications contemplated by Article 191(1) of the Constitution read with S. 8 of the Representation of the People Act are incurred. It is true that when a member is expelled the constituency which he represented may go unrepresented. But this can happen only till the seat is refilled. In any case, it is difficult to see how if there is a privilege of expulsion for undesirable and disreputable conduct the exercise of the power can be controlled by want of representation by a constituency resulting from expulsion. The fact that a particular constituency may go unrepresented because its representative has been expelled for his conduct cannot control the privilege of expulsion. (Para 74) "An argument was also advanced that Art. 194 (3) must be read as subject to the right under Art. 19 (1) (a) of the Constitution of India. Now, it is difficult for us to see how any reference to Art. 19 (1) (a) can legitimately be made in these proceedings" (Para 75) "It would now be proper to refer to the decisions of the Madhya Pradesh High Court in Yeshwant Rao v. M. P. Legislative Assembly, AIR 1967 Madh Pra 95 and the Punjab and Haryana High Court in Hardwari Lal v. The Election Commission of India, ILR (1977) 2 Punj. and Har. 269 (FB) (Para 76) "The decision elaborately discusses the powers and privileges of the House of Commons and it was only after a full consideration of the scope of Art. 194 (3) that the Division Bench came to the conclusion that the Legislative Assembly had the power of expulsion and that the Court could not interfere with the exercise of such power." (Para 77) "The only other decision which needs to be referred to so far as the scope of Art. 194 (3) is concerned is the decision in Hardwari Lal's case ILR (1977) 2 Punj. and Har. and Har. (FB) (Para 78) "It is not possible to dispute the proposition that the privilege of the House of Commons in the matter of its own composition cannot be claimed by the State Legislature. Indeed it is so held in the U. P. Reference Case ( AIR 1965 SC 745 ). But, with respect, we are unable to concur with the view taken in the majority judgment having regard to the elaborate discussion which we have already made in the earlier part of the judgment. The majority judgment seems to take the view that in the matter of determining whether there is a power of expulsion or not, the Constitutional position in the United States of America is more akin to the constitutional position in India." (Para 79) "Therefore, even in a democratic country like the United States the power of expulsion in respect of a conduct of an elected member of a House inconsistent with his position and dignity has been well recognized. Such a power cannot be negatived merely on the ground that the constituency which the expelled member represented would go unrepresented. If the constituency goes unrepresented in the Assembly as a result of the act of an elected member inconsistent with the dignity and derogatory of the conduct expected of an elected member then it is the voters who alone will have to take the blame for electing a member who indulges in conduct which is unbecoming of an elected representative. Though the fact that a constituency may go unrepresented may not be relevant, it may be pointed out that the expulsion not being specified in the disqualifications to disqualify the expelled member from standing for an election again, the constituency will merely have to wait till fresh elections are conducted." (Para 86) "In the majority judgment in Hardwari Lal's case (ILR (1977) 2 Punj. & Kar. 269) (FB) the judgment of the Madhya Pradesh High Court in Yeshwant Rao's case (AIR 1967 Madh Pra 95) was sought to be got over by making an observation that the reprehensible conduct of the concerned member of the Madhya Pradesh Assembly might perhaps have warped a dispassionate assessment of the legal aspect. & Kar. 269) (FB) the judgment of the Madhya Pradesh High Court in Yeshwant Rao's case (AIR 1967 Madh Pra 95) was sought to be got over by making an observation that the reprehensible conduct of the concerned member of the Madhya Pradesh Assembly might perhaps have warped a dispassionate assessment of the legal aspect. A fair reading of the judgment of the Madhya Pradesh High Court would show that they have discussed the legal position and it would not be permissible to disregard that view merely on the ground that it is not the result of dispassionate assessment of the legal aspect. We are thus not inclined to concur with the view taken in the majority judgment in Hardwari Lal's case." (Para 87) "The power of expulsion is not inconsistent with any of the other provisions of the Constitution of India. Such power cannot be negatived on the ground that an elected member was entitled to continue as a member for a period of five years or that a particular constituency may go unrepresented because of the expulsion of the elected representative." (Para 112(11) ). 13.9. I express my regret that I am unable to agree to the view expressed in this regard in the majority judgment of Punjab & Haryana case (paragraphs 310 to 358), portions from some of which are set out hereinbelow:- "I, therefore, conclude that the statement in May's Parliamentary practice on the point that the privilege of providing for and regulating its own constitution by the House of Commons being expressed in three ways is merely illustrative and not exhaustive. The power of expulsions is an additional mode of exercising that basic privilege. Even otherwise the power of expulsion can equally be well visualised as an adjunctive or necessary procedural power to effectuate the basic purpose of that very privilege. (Para 310)" "...I, therefore, think that there is substance in the petitioner's submission which was not adequately met on behalf of the respondents that a discretionary power of expulsion by majority in a legislature involve a head on collision with the basic and guaranteed constitutional rights of representation of the freedom of the choice of electors and the rights of the elected themselves. (Para 323)" "From the above, it is plain that the two Articles provide for six basic modes for the vacation of seats. (Para 323)" "From the above, it is plain that the two Articles provide for six basic modes for the vacation of seats. Four of the first modes operate as a matter of law automatically whilst the fifth mode is the voluntary one of the resignation. (Para 327)" "I am inclined to hold that in view of the basic premise of Republican Democracy enshrined in the Preamble of our Constitution; Articles 170 and 172 prescribing the freedom of franchise and the freedom of choice for a fixed duration for the territorial constituencies of a State Legislature; and Articles 190, 191 and 192 providing in detail for the vacation of seats and disqualifications for membership when read together are all pointers to the fact that a power of expulsion by majority is inherently alien to the written provisions of our Constitution and is, therefore, unavailable to the State Legislatures by the very nature of things." (Para 336) "For all the reasons aforesaid, I am inclined to the view that the Division Bench judgment in Yesbwant Rao Meghawale v. Madhya Pradesh Legislative Assembly and others (supra) does not lay down the law correctly and with great deference and humility would dissent from the same." (Para 357) "......The power of the House of Commons to expel one of its members is an integral and indivisible part of its basic and peculiar privilege to provide for and regulate its own constitution. Admittedly this privilege does not and indeed cannot descend to the State Legislatures in India by virtue of Article 194 (3) of our Constitution. Even otherwise such a power of expulsion by majority is inherently alien to the other tenets of our written and exhaustive Constitution. Therefore, it has to be held inevitably that Respondent No.3, the Vidhan Sabha of Haryana, is not clothed with any power of expelling its duly elected members by majority as a measure of punishment for its contempt. The imposable punishments for contempt of the House are known and well-settled as being admonition, reprimand, suspension from the service of the House for the sessions, fine and lastly the keystone in this context being the power to commit the contemner to prison." (Para 358) 13.10. The imposable punishments for contempt of the House are known and well-settled as being admonition, reprimand, suspension from the service of the House for the sessions, fine and lastly the keystone in this context being the power to commit the contemner to prison." (Para 358) 13.10. In my opinion, the views expressed by the majority judgment in this respect do not correctly appreciate the true scope and extent of the powers and privileges of the Legislature as conferred by the latter part of Article 194 (3) and the provisions of Articles 170, 171, 173, 190 and 191 of the Constitution. The question of exercise of such powers and privilege, as conferred by the latter part of Art. 194 (3), cannot be mixed up with the question of "qualification" or "disqualification" as contemplated by the said Articles. These are two completely different matters. It is not necessary to give my views regarding the majority judgment on this point in details as I have already expressed my views in the matter. I respectfully agree and follow the contrary view held in the other judgments referred to above. I hold that there is nothing in the Constitution whether in Article 170, 171, 173, 190 or 191, which in any manner or extent whatsoever, negatives the powers and privileges, including the power of expulsion of one of its members or with which such power or privilege can be said to be inconsistent. 14. Rule 63 of the Rules framed by Bihar Assembly. 14.1. The next question is whether in view of the Rules of Procedure framed under Article 208 of the Constitution by the Bihar Legislative Assembly, particularly clause 63 thereof, it can be said that, at the relevant times, at least the Bihar Legislative Assembly had no power to impose any penalty or punishment other than those contained in Rule 63 and, accordingly, no such punishment of expulsion could be imposed on the petitioners in the facts and circumstances of this case. 14.2. Rule 63 of the Rules of Procedure framed by the Bihar Assembly under Art. 208 of the Constitution provides as follows:- "63. Power to preserve order and to order withdrawal or suspension of members.-(1) The Speaker shall preserve order and shall have all powers necessary for the purpose of enforcing his decisions on all points of order. 14.2. Rule 63 of the Rules of Procedure framed by the Bihar Assembly under Art. 208 of the Constitution provides as follows:- "63. Power to preserve order and to order withdrawal or suspension of members.-(1) The Speaker shall preserve order and shall have all powers necessary for the purpose of enforcing his decisions on all points of order. (2) The Speaker may direct any member who refuses to obey his order or whose conduct, in his opinion is otherwise disorderly or who has been found guilty of breach of a privilege of the House to withdraw immediately from the Assembly for a period to be named by him. (3) The Speaker may, in his discretion, instead of taking action under sub-rule (2), name such member for the adjudication of his conduct by the Assembly and thereafter shall forthwith put the question on a motion being made by the Leader of the House, no amendment or adjournment of debate being allowed unless the Speaker otherwise permits : "That such member be suspended from the service of the House" for a period to be specified in the motion and upon the motion being carried the member so suspended shall forthwith withdraw from the Assembly. (4) The suspension of a member under sub-rule (2) or (3) in any session, on the first occasion, shall continue for not more than five consecutive sittings and on the second occasion not more than ten consecutive sittings and on any subsequent occasion for any period not longer than the remainder of the session. (5) A member ordered to withdraw or suspended under this rule shall forth with quit the precincts of the Assembly: Provided that such suspension shall not exempt a member from serving on any Committee of the Assembly or any Joint Committee or Joint Select Committee of both the House to which he may have previously been appointed. (6) A member suspended under this rule shall not be deemed to be absent for the purpose of clause (4) of Article 190 of the Constitution. (7) If the member who has been ordered to withdraw or suspended under this rule refuses to withdraw, the Speaker may order his removal by force; and the Sergeant-at-Arms on duty shall act on such direction of the Speaker as he may receive in pursuance of this rule." 14.3. (7) If the member who has been ordered to withdraw or suspended under this rule refuses to withdraw, the Speaker may order his removal by force; and the Sergeant-at-Arms on duty shall act on such direction of the Speaker as he may receive in pursuance of this rule." 14.3. It was submitted on behalf of the petitioners that it is well settled that though it is not open to the House of Commons in England to add to their established privileges, but it is open to them to give up any of their established privileges. The same principle would admittedly apply in respect of the Legislatures in this country. Accordingly, relying on Rule 63, it was submitted that Rule 63 only contemplates about two kinds of punishments, viz., "withdrawal" and "suspension" and nothing else. It does not provide for any other punishment particularly "expulsion". Accordingly, we must proceed on the basis that at least so far as the Bihar Assembly is concerned, it has no such power of expulsion. In any event, even if it had originally such power, it had given up such power by framing Rule 63. 14.4. A similar question was raised in the M. P. decision (ibid) and it was dealt with in the following manner: "It remains to consider the effect of the absence in the Rules of Procedure and Conduct of Business framed by the M. P. Assembly of a rule dealing with expulsion of members The absence of a rule is in no way indicative of the fact that the Legislature has not the power of expelling member rendering his seat vacant or of precluding the exercise of the power. The powers, privileges and immunities vested in the State Legislature by virtue of Article 194 (3) are not contingent upon a House of Legislature exercising its authority under Article 208(1) of the Constitution of making rules for regulating its procedure and conduct of its business. Article 194(3) has an operation which is independent of the exercise of the power under Article 208(1). Therefore, even if no rule has been framed by the Assembly under Article 208(1) with respect to the mode in which the power of expulsion may be exercised by the House, yet it has the authority to exercise that power vested in it under Article 194 (3)." (para 25) 14.5. I respectfully agree with the same. Therefore, even if no rule has been framed by the Assembly under Article 208(1) with respect to the mode in which the power of expulsion may be exercised by the House, yet it has the authority to exercise that power vested in it under Article 194 (3)." (para 25) 14.5. I respectfully agree with the same. In my opinion, merely because Rule 63 refers to only two modes of dealing with a defaulting member, that by itself does not and cannot take away the powers and privileges otherwise conferred by the latter part of Art. 194 (3). I have held that the Legislature in India had the power to expel one of its members, by virtue of the latter part of Art. 194(3). I have also held that a Legislature can take a decision or pass a resolution giving up any of its powers and privileges, though it cannot add to the same. However, in my opinion, by framing such Rules, particularly Rule 63, the Bihar Assembly cannot be said to have given up or intended to give up any of its powers or privileges otherwise conferred by the latter part of Art. 194(3) including the power of expulsion. Accordingly, I reject this contention. 15. Effect of 44tb Amendment in so far as the Latter Part of Art. 194 (3) is Concerned. 15.1. So far as the argument based on 44th Constitution Amendment of the latter part of Clause (3) of Art. 194 is concerned, in my opinion, not much time need be spent in respect thereof. 15.2. In my opinion, no substantial "change" was introduced by the House of Commons between 1950 and 1979. If at all it can be said that there was ever any "change", it was only agreed on principle that except in case of "substantial interference" with the dignity of the House of Commons, no such power or privilege regarding punishment was to be exercised. However, that does not amount to giving up or modifying or curtailing in substance any power or privilege of the House by the House. 15.3. In my opinion, no substantial change was sought to be introduced in the latter part of Art. 194(3) by such amendment. However, that does not amount to giving up or modifying or curtailing in substance any power or privilege of the House by the House. 15.3. In my opinion, no substantial change was sought to be introduced in the latter part of Art. 194(3) by such amendment. The latter part of Art. 194(3), as it was at the time of commencement of the Constitution in 1950, provided that the powers, privileges and immunities of the legislatures would be those which were established to be in existence in the House of Commons at that time. By the 44th Amendment, reference to the House of Commons has been deleted and it now provides that all such powers, which were in the House, meaning thereby the Legislature of a State, on the date of introduction of the 44th Amendment, i.e., 20th of June, 1979, would continue to remain with the legislature concerned. The only change, which may be said to have taken place in respect of the position prevailing at the time, was only to the extent that if between the commencement of the Constitution and the introduction of the 44th Amendment, any of the powers or privileges conferred on the legislature, by virtue of the latter part of Clause (3) of Article 194, as it originally stood in 1950, was given up by any legislature concerned, then in view of the said amendment or any law made under the first part, then the powers and privileges previously conferred in 1950 would not still remain with the legislature concerned. No power or privilege can be deemed to have been conferred on the House of Commons other than those powers and privileges which were settled in England. No power or privilege can be added by the House of Commons to the "settled" powers and privileges if it so likes. The Bihar Assembly had not given up any of its powers and privileges, conferred upon it at the commencement of the Constitution by the latter part of Clause (3), including the power of expulsion. Accordingly, so far as the present proceedings are concerned, the changes made in the latter part of clause (3) of Article 194 by the 44th Amendment, does not make any difference. 15.4. The argument sought to be advanced by Mr. Accordingly, so far as the present proceedings are concerned, the changes made in the latter part of clause (3) of Article 194 by the 44th Amendment, does not make any difference. 15.4. The argument sought to be advanced by Mr. Basudev Prasad regarding the change in the power of the House of Commons between the period 1950 and 1979 and the automatic change in the power of the legislature of a State by virtue of the 44th Amendment, is a novel one but it does not appeal to us. Even assuming that the House of Commons might have given up some of its powers and privileges between 1950 and 19i9, that would not automatically amount to depriving the legislature of any State in India of any of its powers and privileges automatically without any specific provision to that effect by the legislature concerned. Moreover, it is well settled that in the case of a legislation by incorporation, if there is any amendment or deletion of any provision of the first statute, that by itself would not amount to deletion or amendment of the latter statute in which such provisions of the first statute were incorporated. 15.5. In this connection reference may be made to the decision in Bhatinda Improvement Trust v. Balwant Singh and others : (1991) 4 S.C.C. 368 wherein it was held as follows : "... ...It is well settled law that where a statute is incorporated by a reference into a second statute, the repeal of the first statute does not affect the second. Similarly, in a case where a statute is incorporated by a reference into another statute an amendment of the statute so incorporated after the date of the incorporation does not affect the second statute and the provisions of the latter statute and the provisions of the latter statute remain the same as they were at the time of incorporation......." (Para 8) 15.6. Moreover, apart from the question that any change in the power and privilege of the House of Commons introduced after 1950 does not automatically curtail the power and privilege of the Indian legislature to expel, whether in a particular case it amounts to "substantial interference" or not, is not a matter for the legislature and the courts have no power or jurisdiction to go into the said question. 15.7. Accordingly, there is no merit in the contention of Mr. 15.7. Accordingly, there is no merit in the contention of Mr. Basudev Prasad based on the 44th Amendment and I reject the same. 16. Breach of privilege-In respect of any conduct outside the House. 16.1. One of the points argued on behalf of the petitioners was that the alleged conduct on the part of the petitioners and the alleged incident if any, took place not inside the House itself but outside the House and, accordingly, no action could be taken against the petitioners on the ground of any alleged breach of its privilege. It was submitted that such conduct, if any, as alleged against the petitioners either in the corridor or in front of Speaker's Chambers in the Assembly premises, even if is assumed to be correct could not be the subject matter of any action for expulsion. 16.2. In my opinion, there is no merit in this context. In respect of the question of mala fide I have considered in details the incidents alleged. Admittedly, the action and conduct alleged against the petitioners did not in fact take place inside the House itself but it is alleged to have taken place in the Assembly premises itself and this involved some conduct towards the Speaker when he loft his Chambers and was coming towards the House to conduct its business. In my opinion, if the action and conduct alleged as against the petitioners, amount to breach of privilege, if it was committed within the four walls of the House, then it would not cease to be a breach of privilege, if it was committed against the Speaker while he was proceeding towards the House from his chamber in the Assembly premises to conduct its business. However, I have made it clear that it is not for the Court to go into the question of the correctness of the allegations. Any action or conduct which in any way interfered or is likely to interfere with the dignity of the House or with the proper functioning of the House, can be the subject matter of a proceeding in privilege. If any such act or conduct, as alleged, was committed within the four walls of the House against the Speaker while he was functioning as a Speaker, it would certainly amount to a breach of privilege. If any such act or conduct, as alleged, was committed within the four walls of the House against the Speaker while he was functioning as a Speaker, it would certainly amount to a breach of privilege. It would also not make any difference if the alleged conduct against the Speaker, had not taken place actually within the four walls of the House itself, but have taken place just outside the Speaker's chambers in the House while the Speaker was proceeding from his Chambers in the Assembly House towards the House to perform his duties as Speaker of the House. Accordingly, I have no hesitation in holding that even if the incident as alleged bad not taken place within the four walls of the House itself, but if it had taken place in front of the Chambers of the Speaker in the Assembly premises, in such circumstances it does not cease to be a breach of privilege. 16.3. In the Madras case it was held that the House of Commons possessed and exercised the power and privilege to expel a member for an action which the House considered to be a misconduct even though the misconduct was committed outside the House. (Para 112 (9) 16.4. In this connection, I had posed one question to the learned Advocates at the time of the hearing of the case. If an incident, directed towards a Judge sitting in Court in performance of his duty, undoubtedly and undisputedly amounts to an act of contempt, would it cease to be Chambers of the Hon'ble Judge or in the corridor of the Court, while the learned Judge was proceeding from his Chambers in the High Court premises to his Court room to perform his duty as a Judge? No sensible person would have any hesitation in answering this question in the negative. 17. Mala Fide 17.1. The next question is : "Whether any resolution/decision of the Legislature, imposing power of expulsion on the ground of breach of privilege, can be challenged on the ground of mala fide, whether malice in law or in fact? 17.2. At the first instance I shall refer to some of the decisions in this context. 17.2.1. 17. Mala Fide 17.1. The next question is : "Whether any resolution/decision of the Legislature, imposing power of expulsion on the ground of breach of privilege, can be challenged on the ground of mala fide, whether malice in law or in fact? 17.2. At the first instance I shall refer to some of the decisions in this context. 17.2.1. In the case of Neelima Misra v. Harinder Kaur Paintal : (1990) 2 SCC 746 , while holding that the power of the Chancellor under section 31 (d) of the relevant Act was not in the nature of judicial or quasi judicial orders, the Supreme Court observed as follows:- "The Chancellor, however, has to act properly for the purpose for which the power is conferred. He must take a decision in accordance with the provisions of the Act and the Statutes. He must not be guided by extraneous or irrelevant consideration. He must not act illegally, irrationally or arbitrarily. Any such illegal, irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi judicial exercise of power is liable to be quashed being violative of Art. 14 of the Constitution. As stated in E. P. Royapa v. State of Tamil Nadu, (1972) 2 SCR 348; ( AIR 1974 SC 555 ) "equality and arbitrariness are sworn, enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch". The principle of equality enshrined in Art. 14 must guide every State action, whether it is legislative, executive, or quasi-judicial. See Mrs. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 at pp. 283-84 : ( AIR 1978 SC 597 at p. 624); Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 at pp. 740-41: ( AIR 1981 SC 487 at pp. 498-499); Som Raj v. State of Haryana, (1990) 1 JT 286 at p. 290 : ( AIR 1990 SC 1176 at P. 1180)." (para 29) 17.2.2. In Shri Sitaram Sugar Co. Ltd. v. Union of India and others: (1990) 3 Supreme Court cases 223, it was observed as follows:- "Any arbitrary action, whether in the nature of a legislative or administrative or quasi-judicial exercise of power, is liable to attract the prohibition of Article 14 of the Constitution. In Shri Sitaram Sugar Co. Ltd. v. Union of India and others: (1990) 3 Supreme Court cases 223, it was observed as follows:- "Any arbitrary action, whether in the nature of a legislative or administrative or quasi-judicial exercise of power, is liable to attract the prohibition of Article 14 of the Constitution. As stated in E. P. Royappa v. State of Tamil Nadu: (1974) 4 SCC 3 , "equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch". Unguided and unrestricted power is affected by the vice of discrimination: Maneka Gandhi v. Union of India: (1978) 1 SCC 248 . The principle of equality enshrined in Article 14 must guide every State action, whether it be legislative, executive, or quasi-Judicial: Ramana Dayaram Shetty v. International Airport Authority of India: (1979) 3 SCC 489 ; Ajay Hasia v. Khalid Mujib Sehravardi : (1981) 1 SCC 722 and D. S. Nakara v. Union of India: (1983) 1 SCC 305 ." (para 46). "The doctrine of judicial review implies that the repository of power acts within the bounds of the power delegated and he does not abuse his power. He must act reasonably and in good faith. It is not only sufficient that an instrument is intra vires the parent Act, but it must also be consistent with the constitutional principles : Maneka Gandhi v. Union of India: (1978)1 SCC 248 ." (para 48). "A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an in admissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness. See Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation : (1948) 1 KB 223. In the words of Lord Macnaghten in Mayor & C. Westminister Corporation v. London and North Western Railway : 1905 AC 426:- "... ...It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. ...It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first." In Barium Chemicals Ltd. v. Company Law Board: A.I.R. 1967 S.C. 295, this Court states : (per Shelat, J.)- "... ...Even if (the statutory order) is passed in good faith and with the best of intention to further the purpose of the legislation which confers the power, since the authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In anyone of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts." In Renusagar : (1908) 1 KB 441, Mukharji, J., as he then was, states: "The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. Similarly, if the power has been exercised on a non-consideration or non-application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist, and which are patently erroneous, such exercise of power will stand vitiated." "The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi-judicial is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it." (paras 51 and 52) 17.2.3. In Mahabir Auto Stores and others v. Indian Oil Corporation and others: (1990) 3 SCC 752 , it was observed:- "The existence of the power of judicial review however depends upon the nature and right involved in the facts and circumstances of the particular case. It is well settled that there can be "malice in law". Existence of such "malice in Jaw" is part of the critical apparatus of particular action in administrative law. Indeed 'malice in law" is part of the dimension of the rule of relevance and reason as well as the rule of fair play in action." (para 13) 17.2.4. In Shrilekha Vidyarthi v. State of U. P. : (1991) 1 SCC 212 , it was observed that every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. This is equally true of all actions even in the field of contract. It was pointed out that duty to act justly and not arbitrarily is covered by Article 14. In this context reference may be made particularly to paragraphs 21 to 30. The decision in Mababir Auto Stores v. Indian Oil Corporation; (1990) 3 SCC 752 was also approved. In this context reference may be made to the following passages:- "No doubt, it is true, as indicated by us earlier, that there is a presumption of validity of the State action and the burden is on the person who alleges violation of Article 14 to prove the assertion. However, where no plausible "reason or principle is indicated nor is it discernible and the impugned State action, therefore, appears to be ex facie arbitrary, the initial burden to prove the arbitrariness is discharged shifting onus on the State to justify its action as fair and reasonable. If the State is unable to produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged. The scope of judicial review is limited as indicated in Dwarkadas Marfatia case; (1989) 3 SCC 293 to oversee the State action for the purpose of satisfying that it is not vitiated by the vice of arbitrariness and no more. The scope of judicial review is limited as indicated in Dwarkadas Marfatia case; (1989) 3 SCC 293 to oversee the State action for the purpose of satisfying that it is not vitiated by the vice of arbitrariness and no more. The wisdom of the policy or the lack of it or the desirability of a better alternative is not within the permissible scope of judicial review in such cases. It is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate, once the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case. As indicated by Diplock, L. J. in Council of Civil Service Unions v. Minister for the Civil Service: (1984) 3 All ER 935, the power of judicial review is limited to the grounds of illegality, irrationality and procedural impropriety. In the case of arbitrariness, the defect of irrationality is obvious." (para 33) "In our opinion, the wide sweep of Article 14 undoubtedly takes within its fold the impugned circular issued by the State of D.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government Counsel in the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointees, and assuming for the purpose of this case that the rights flow only from the contract of appointment, the impugned circular, issued in exercise of the executive power of the State, must satisfy Article 14 of the Constitution and if it is shown to be arbitrary, it must be struck down. However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U.P., for a long time. This too is relevant for deciding the question of arbitrariness alleged in the present case." (Para 34). However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U.P., for a long time. This too is relevant for deciding the question of arbitrariness alleged in the present case." (Para 34). "It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind." (Para 35). "The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates .governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that 'be you ever so high, the laws are above you'. This is what men in power must remember, always." (Para 36). "No doubt, it is for the person alleging arbitrariness who has to prove it. It is trite that 'be you ever so high, the laws are above you'. This is what men in power must remember, always." (Para 36). "No doubt, it is for the person alleging arbitrariness who has to prove it. This can be done by showing in the first instance that the impugned State action is uninformed by reason inasmuch as there is no discernible principle on which it is based or it is contrary to the prescribed mode of exercise of the power or is unreasonable. If this is shown, then the burden is shifted to the State to repel the attack by disclosing the material and reasons which led to the action being taken in order to show that it was an informed decision which was reasonable. If after a prima facie case of arbitrariness is made out, the State is unable to show that the decision is an informed action which is reasonable, the State action must perish as arbitrary." (Para 39). 17.2.5. Reference may also be made to the case of Union of India v. Tulsiram Patel, A.I.R. 1985 S.C. 1416 particularly paragraphs 89 onwards. It was pointed out that arbitrariness can take many forms and shapes but whatever form or shape it takes, it is nonetheless discrimination. (Para 90). It was also pointed out that it also became apparent that to treat a person or a class of persons unfairly would be an arbitrary act amounting to discrimination forbidden by Article 14. Similarly, this Court, recognized that to treat a person in violation of the principles of natural justice would amount to arbitrary and discriminatory treatment and would village the guarantee given by Article 14. In this context reference was made to State of Andhra Pradesh v. Nalla Raja Reddy: AIR 1967 S.C. 1458 to the following passage : "Official arbitrariness is more subversive of the doctrine of equality than statutory discrimination. In respect of a statutory discrimination one knows where he stands, but the wand of official arbitrariness can be waved in all directions indiscriminately." (Para 91) Reference was also made to the judgment of Bhagwati, J. in E. P. Royappa v. State of Tamil Nadu : (1974) 2 SCR 348 at 386 wherein it was pointed out as follows:- "Art. 14 is the genus while Art. 16 is a species. Art. 16 gives effect to the doctrine of equality in all matters relating to' public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., 'a way of life', and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate "its all-embracing scope and meaning, far to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be 'cribbed, cabined and confined' within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal bath according to political logic and constitutional law and is therefore violative of Art. 14, and if it affects any "matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice : in fact the latter comprehends the former. Both are inhibited by Arts. 14 and 16." (Para 92). "... ...Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a breeding omnipresence." (Para 93) 17.2.6. Both are inhibited by Arts. 14 and 16." (Para 92). "... ...Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a breeding omnipresence." (Para 93) 17.2.6. In this context, reference may be made to para 127 of Presidential Reference Case, which is set out hereinbelow:- "... ...If in a given case, the allegation made by the citizen is that he has been deprived of his liberty not in accordance with law, but for capricious or mala fide reasons, this Court will have to examine the validity of the said contention, and it would be no answer in such a case to say that the warrant issued against the citizen is a general warrant and a general warrant must stop all further judicial inquiry and scrutiny. In our opinion, therefore, the impact of the fundamental constitutional right conferred on Indian citizens by Art. 32 on the construction of the latter part of Art. 194 (3) is decisively against the view that a power or privilege can be claimed by the House, though it may be inconsistent with Art. 21. In our opinion, therefore, the impact of the fundamental constitutional right conferred on Indian citizens by Art. 32 on the construction of the latter part of Art. 194 (3) is decisively against the view that a power or privilege can be claimed by the House, though it may be inconsistent with Art. 21. In this connection, it may be relevant to recall that the rules which the House has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution under Art. 208 (1)." (Para 127) 17.2.7 Reference may also be made in this connection to paragraphs 149 to 176 of the minority judgment of Naula C.J. and paragraphs 209 to 232 of the majority judgment of Punjab case, some of which are set out hereinbelow:- "For the foregoing reasons I hold on the first point urged by the petitioner in this respect that the High Court cannot decline to listen to allegations of mala fides against the House as a whole in an appropriate case and dismiss the petition containing those allegations at the threshold, but it is difficult to conceive of a case where the High Court would be able to hold that the decision of the Vidhan Sabha was actuated by malice of the whole House, particularly because it is not open to any Court to expunge, annul or declare invalid any vote, any speech or decision of a State Legislature on the ground that the vote was cast or decision arrived at or the speech was made mala fide. Such an attempt would amount to prohibit interference with the internal affairs of the State Legislature. (Para 163) "Before I address myself to these legal issues, it becomes necessary first to consider and adjudicate upon the writ petitioner's attack on the resolution of expulsion on the ground of its being mala fide. This is so because it appears to me as settled law that even where an undoubted power vests in a statutory body its mala fide or colourable exercise has nevertheless to be struck down. Therefore even if it were to be assumed in the respondent's favour that the State Legislatures have the power and privilege to expel yet a mala fide exercise of this power would necessarily have to be set aside. Therefore even if it were to be assumed in the respondent's favour that the State Legislatures have the power and privilege to expel yet a mala fide exercise of this power would necessarily have to be set aside. The writ petitioner without more would be entitled to succeed if he is able to establish conclusively his charge of mala fides." (Para 209) xxx xxx xxx xxx xxx xxx "In my view, the petitioner's stand and contentions herein are more than well founded. Before one gets enmeshed in the details of precedent, to which reference is inevitable, it is refreshing to examine the matter on principle. It is true that it would never be easy to attribute mala fides to the members of an august body like the Legislature. I am second to none in the matter of regard and respect which must necessarily be accorded to the Legislature and the traditional wisdom which had always been reached to them. Perhaps in a large Legislature, the difficulty of proof in order to establish that each member thereof had acted for extraneous consideration may indeed be inseparable. However, saying that a matter is not easy to prove or establish is certainly not the same thing as laying it down as a dictum of law that a vote in the Legislature can never be assailed on the ground of mala fides. Recent reverberations around the globe of bribery and corruption which have been called the Lockheed Scandle have highlighted the fact that corrupt and illicit motive may sometimes permeat to the highest echelons of the Government or the Legislatures. However, to keep close to the fact, one may advert to a simple illustration. Take the example of a relatively small Legislature and look at the easternmost part of our country would show that there is no paucity of such a small Houses with relatively related membership either within or without this country. The corum for such a small body may again be merely one third or one fourth of its total members as is usual. The corum for such a small body may again be merely one third or one fourth of its total members as is usual. Supposing in a particular case in such a small Legislature a minuscule number of Legislatures forming the corum resolved by majority on an issue and later it can be proved conclusively or is even admitted that the voting is motived by extraneous or even corrupt motives, then would such a resolution when challenged be sacrosanct from examination on the supposed ground that a vote of the Legislature can never be mala fide? Would the law create a false mask of innocence around what in fact is not so? I an unable to see any principle, logic or justification for refusing to even examine what may be admittedly or conclusively capable of proof as extraneous or mala fide. The law has always pierced all artificial veils to arrive at the substance and truth of the matter. One sees no reason why the Legislature should form an exception to this salutary and hallowed rule. (Para 211) xxx xxx xxx "...It is manifest from the above that the highest authority has held that the existence of mala fides would render null and void the actions even of the highest executive within the State, as also of the Government, as also the judgments rendered by a Court of law. In no uncertain terms, it has been observed that each and every authority in the State is bound by this rule. Surely the Legislature is within the ambit of this wide-ranging terminology. I see no reason why the Legislatures would be an exception to the hallowed rule noted by their Lordships." (Para 215) xxx xxx xxx "I would, therefore, hold on principle, owing to the absence of any considered reasoning therein; and in view of the binding precedents of the Supreme Court, that the observations in Jai Singh Rathi's case do not lay down the correct law. Whilst there would be obvious difficulties of proof, there does not appear to be any warrant for the abstract and sweeping proposition that a vote on a resolution by the Legislature cannot ever be said to be mala fide as a matter of law. Whilst there would be obvious difficulties of proof, there does not appear to be any warrant for the abstract and sweeping proposition that a vote on a resolution by the Legislature cannot ever be said to be mala fide as a matter of law. Of course there is a presumption in favour of the action of the Legislature but it obviously cannot be conclusive and is rebuttable though the burden would be heavy on the challenger. With great deference and humility to the learned Judges of the Full Bench, I overrule the same on this specific point only." (Para 221) 17.3. After a careful consideration of the matter, I am of the view that it will not be strictly correct to say that in writ petition, an action or decision of the legislature even of this nature, cannot be challenged on the ground of mala fide if it otherwise could be challenged in respect of any order/decision of any other authority. A Statute may not be challenged as mala fide. But a decision/resolution of a legislature imposing a punishment, including expulsion of a member, cannot be treated on the same footing. Article 194 (3) does not confer any right or privilege on a legislature to pass any order of expulsion even if it is shown or proved as mala fide. 17.4. So far as malice in law is concerned, it can certainly be a ground of challenge of such decision/resolution in an application under Article 226. If the exercise of power of punishment, for the alleged breach of its privilege, is arbitrary or if there is non-application of mind, certainly it cannot be said that even in such a case, the exercise of power of expulsion by the legislature cannot be challenged in a writ petition as mala fide. There is another aspect of the matter. If the action or decision challenged as arbitrary, this also amounts to violation of the fundamental rights guaranteed by Article 14 of the Constitution. There is another aspect of the matter. If the action or decision challenged as arbitrary, this also amounts to violation of the fundamental rights guaranteed by Article 14 of the Constitution. By way of illustration, suppose it is stated in such a resolution that a particular member was being expelled for having acted in an objectionable manner in the House itself on a particular day, which otherwise would admittedly amount to breach of privilege, but it is established at the time of the hearing of the writ petition that on the particular date the Assembly was not in session or that the member concerned was admittedly outside the country, certainly it cannot be said that even in that case the action of the Legislature cannot be successfully challenged on the ground of malice in law on the ground of non-application of mind, even if malice in fact cannot be proved. It is one thing to say that the Court cannot go into the merits of the power and privileges exercised by the legislature, because the legislature is the sole authority regarding the question as to whether the action complained of amounts to breach of privilege or not, but it is different when the legislature expels a person from its membership arbitrarily or when it does not give any reason or when the reason given is admittedly or proved to be non-existent. 17.5. I shall first take up the question of malice in law in the facts of this case. To ascertain whether the power of expulsion in this case bas been exercised arbitrarily or without application of mind, and only for this limited purpose, I shall set out hereinbelow some of the relevant portions from the record of proceedings of the Legislature itself. 17.6. As to the alleged incident of 24th of March, referred to in the notification, it appears from the copies of the proceedings that on 24th of March, 1992, which was a Tuesday, there was no effective sitting at all on account of the death of Shri T. Muchi Rai Munda excepting passing condolence resolution. There is nothing on record regarding any action or conduct of any of the three petitioners regarding that as alleged in the notification. 17.7. There is nothing on record regarding any action or conduct of any of the three petitioners regarding that as alleged in the notification. 17.7. So far as the proceedings of 25th are concerned, it appears as follows:- (a) When zero hours was taken up, one Shri Shivadhar Paswan addressed the Speaker to the effect that a privilege motion should be brought against the Members of the Congress (I) and Bhartiya Janta Party (B.J.P.), who have committed "indecent behaviour" against the Hon'ble Speaker which, according to him, had breached the privilege of the House. He wanted to know what action the Speaker was going to take against these members who had acted against the Speaker. There were no details of the said allegations. (b) Similar stand was also taken by another member, namely, Lal Babu Prasad but similarly there are no details of the same. (c) Then it was stated by one other member, namely, Sri Ramendra Kumar, whose name appears in the impugned notification as the proposer, about "incidents which have been taking place since last (sic) days". However, there is no particular of the same. He further stated that till that day no charge was brought nor any allegation was levelled against the Chair in the Legislative Assembly, but on that day the incidents, which had taken place "within the precincts of the Legislative Assembly" in front of the chamber of the Speaker and abuses, which were hurled against the Speaker, were attacks on democracy; the dignity of the House had been breached. He wanted the subject to be discussed. He specifically referred to Rule 63 (3) that those members, who will be suspended, will not be permitted to enter into the precincts of the House of the Legislative Assembly. (d) It may be pointed out in this context that according to this member, who was the proposer, incident took place not in the House itself but within the ''precincts" of the Assembly. (d) It may be pointed out in this context that according to this member, who was the proposer, incident took place not in the House itself but within the ''precincts" of the Assembly. Then one Ramashray Singh alleged that the incidents, which had taken place, were being continued by the people of the Congress Party and the B.J.P. He commented that "those, who are suspended, are expelled, they cannot come into the precincts of the House and certainly they are liable for privilege." He wanted that "a censure motion should be placed in the House." It may be pointed out in this context that this member, who thought that suspension amounted to expulsion, suggested only a "censure motion". (e) Then the proposer Sri Ramendra Kumar stated as follows:- "Privilege should be brought today and prior to this, if any body raised fingers on the dignity of any of the Hon'ble Members, he was dealt with severely and was never dealt with softly with the help of you all. In the history of India, for the first time an I.A.S. Officer was called in this very House with permission of the House and you all know this also that twice or thrice it happened so that some people said something about me also. I have never taken it seriously rather I have liked to take on the arrow shot at mo on my chest." I may again point out that there was no particular of any such allegation. (f) Thereafter the Chief Minister stated as follows:- "Sri Laloo Prasad; Hon'ble Speaker, The question the point which has been raised by the Hon'ble Members, Hon'ble Sri Ramendra Kumar Jee and Sri Ramashray Babu, is truly grave because this is not a personal question rather it concerns the Chair and the way in which grotesque (unseemly) behaviour is being indulged in by Congress Party and Bhartiya Janta Party is not concealed from you. The entire leadership of the Congress, party here is dwarf and has been confused. It is known throughout the State of Bihar, to the people of Bihar, to the people of the country that the Indian Congress Party has decided to boycott the entire session; such decision has been taken by them. The entire leadership of the Congress, party here is dwarf and has been confused. It is known throughout the State of Bihar, to the people of Bihar, to the people of the country that the Indian Congress Party has decided to boycott the entire session; such decision has been taken by them. Yet there is no reason that the Bhartiya Janta Party at the main gate and the people of the Congress Party having surrounded your door should raise disrespectful and unseemly slogans. I have heard myself, with my own ears, I had gone there. I take it that in this State, in this country, the attack is being hurled on democracy. Those forces and powers are getting dominance (upper-hand) over it because of democracy, democracy is being striken with an axe and a conspiracy is being hatched out to break the entire system," I should, however, point out that excepting stating that "they" "raised disrespectful and unseemly slogans" nothing else was stated. No one's name was mentioned. (g) Then the Chief Minister again stated as follows:--Shree Lain Prasad (Chief Minister) "Hon'ble Speaker, you will not take it seriously. This matter is not of a day. It is not your matter. Any Speaker may come tomorrow and then such a tradition will be established. Hon'ble Speaker, fourteen persons have been expelled and some have been expelled today also. In spite of all this, they have come in your campus and speaking without your orders. It is not proper without your direction. I cannot do anything here as the entire jurisdiction is yours. No difference is being seen between the Congress Party and Bhartiya Janta Party in the manner in which they are acting. They have come in the campus of the Legislative Assembly and acting in such a way. In this way, Bhartiya Janta Party and Congress, being organised, are acting, by coming into collusion with each other for finishing tile democracy. You should take up the matter with seriousness. I leave up to you as to what action has to be taken." (h) Next comes the important aspect of the matter which is the statement made by the Speaker. "Hon'ble Speaker, I complete (the matter), what I was telling. Today, when I saw that Hon'ble Members of the B.J.P. were sitting on the stairs. I leave up to you as to what action has to be taken." (h) Next comes the important aspect of the matter which is the statement made by the Speaker. "Hon'ble Speaker, I complete (the matter), what I was telling. Today, when I saw that Hon'ble Members of the B.J.P. were sitting on the stairs. When I got down from the vehicle, I requested them smiling by asking whether I should go. They moved aside and I proceeded upto my door and that there was no objection. A slogan was being raised outside my door. But when I came outside, I found that the persons of the Congress Party were sitting at my door at the door of my Chambers. A few of then were in (such) a mood to allow me to go anyhow. Allow the passage (sic). Rest of the persons were not in such a mood. There was no harm in it I am saying, when asked by you and when the matter has been raised in the House to the effect that Shree Sakuni Choudhary has raised his hand." It is clear from this statement that in his specific allegation he bas mentioned the name of only one of the petitioners at this stage. (i) The Speaker then continued as follows:- "My Marshal or my Securitymen have not done such an act. They have done a very praiseworthy act. On one hand, they acted to protect me and to pave the way (for others) on the other hand. Then I asked the marshal to remove him. The Marshall removed Shri Shakuni Choudhary. I proceeded ahead as soon as I was allowed to go. All those persons, except the M.L.A., Shri Awanish Kumar Singh of Banka, who were there, allowed me to go." Accordingly, there is reference to two of the petitioners only at this stage. (j) The Speaker then continued as follows:- "On the previous day ( fiNys fnu ) also when the pandemonium was raised, Bachha Chaubey hurled abuses. I am one of them where Hazrat Ali was supported to be the strongest and bravest in the Islamic history and nobody dared come in comparison with him. But one wrestler came to his challenged and when he was overpowered he spitted upon him. Thereafter, he said that it became his individual question. I am one of them where Hazrat Ali was supported to be the strongest and bravest in the Islamic history and nobody dared come in comparison with him. But one wrestler came to his challenged and when he was overpowered he spitted upon him. Thereafter, he said that it became his individual question. On raising such individual question, I always felt a sense of relief in separating myself but when a hue and cry was raised in the House, no member of I.P.E. either put obstruction or raised any objectionable slogan, irrespective of whatever was said about it by any member. Shree Bacha Chaubey, Shree Shakuni Cboudhary and Shree Avnish Kumar Singh put obstruction. (k) Thereafter though one member spoke about assault against the Speaker, there is no definite allegation against anyone. I find that there is an allegation against the three petitioners that they "put obstruction". There is allegation that Shree Chaubey hurled abuses on a "previous day". (l) Thereafter the proposer Shri Ramendra Kumar said : "Hon'ble Speaker whatever you have said in the House, it became clear and has been proved that allegation of breach of privilege of House is proved with regard to the Hon'ble Members Shri Bachha Chaubey, Shri Shakuni Chaudhary and Shri Abnish Kumar Singh. (underlines supp lied) Breach of privilege of the House is proved. When it has been proved, I propose that:- "Membership of the Legislative Assembly of the Hon'ble Members M/s Bachha Chaubey, Shakuni Chaudhary and Abanish Kumar Singh be terminated on allegation of breach of privilege of the House." (m) Thereafter one Shri Ramashray Singh said as follows: "'Hon'ble Speaker, for the sake of parliamentary democracy and dignity of the House. I shall request you to comply with this proposal regarding conduct of these persons. Here I want to mention that in the West Bengal Assembly Shri Nurul Hassan, Hon'ble Speaker, had not hesitated in dismembering a lady for her undesirable behaviour. I shall request you to comply with this proposal regarding conduct of these persons. Here I want to mention that in the West Bengal Assembly Shri Nurul Hassan, Hon'ble Speaker, had not hesitated in dismembering a lady for her undesirable behaviour. I request you to initiate action to expel the three members from the House who have done undesirable behaviour, tarnished the dignity of the house and diminished the faith of (the House) among the public." I ought to point out in this context that His Excellency Sri Nurul Hassan has all along been the Governor of the State of West Bengal and that he has never functioned as Speaker of the Assembly, as wrongly referred to by the member concerned. (n) Then some members said something which was supported by some other members. (o) Then the Chief Minister stated as follows: Shri Lalu Prasad (Chief Minister)—"Chairman, 20th instant, the day on which His Excellency, the Governor had come to address both the Houses, I said that there is no difference between Bhartiya Janta Party, Congress (I) both parties, it was decided by Congress Party that the whole session would be boycotted, but due to rift in Congress in the House of Legislature, attempt was made to stop His Excellency the Governor, for organising their party, Hon'ble Minister, Hon'ble legislator could not come by main gate. The manner, in which His Excellency, the Governor, was taken there, is not unknown to you. In a democracy this House belongs to all Hon'ble members. Whether they come from different regions, whether they belong to any party, no member has right to make dispute on his arrival and stop him and come in the ways of his arrival. But when the Congress Party decided to boycott the current session, then as per their decision and the decision of the Bhardya Janta Party, which I saw with my own eyes, I made an attempt to come by main gate and I came by main gate and then I was going to meet you, but you were sitting in the room, I did not see any control on language, then I returned from there and I informed you on telephone that things are happening in this manner, it is the subject of criminal act. There was no voice of dissent, there was absolute attempt of assault, and misbehaviour. There was no voice of dissent, there was absolute attempt of assault, and misbehaviour. It is my clear opinion that in parliamentary democracy whoever wants to fight with the Government may fight. The Government does not care for this, it fights against them. But you are not member of any party, the Speaker is not considered to be member of any party. We fought to this extent with former Chairman Shri Sheo Chandra Jha, but the members of our party did not use such type of words and language. The Speaker himself says, and the organised forces also say that they have no affinity with Bara (carnage). Whether carnage takes place at Bara, Sahiara or Main Barsimha, they have no affinity with Bhumihar community. But the persons whoever are getting impatient, they are only using the name Bara carnage who did not allow Sita Ram Keshri ji and the Home Minister? who prevented them from going? On that very day I gave information to the Prime Minister on telephone to the effect that the people of Congress Party worked for bringing their dispute and infighting at Bara and they have made a naked demonstration. I had made a statement, I had made a public statement that the people of the Congress Party have worked to insult them. I am clearly of the opinion and I want to make the people of Bihar in general and the people of that area in particular to know that neither they have sympathy with the people of Bara nor with the poor people, who have been killed. The Government does not like to conceal anything. That was why I had said that there should be discussion on the occurrence of Shiara, but who listens to it. It is in mind as to how to grab the gaddi (chair) what way the image of government is tarnished. That effort is being made. It is my opinion that a severe blow has been given to democracy. Whatever you saw with your eyes and the proposal which has come in respect of three Hon'ble members, the entire House is in favour of this proposal. So long as you do not take a stern action, I am of the opinion that the question is not of yours. Whatever you saw with your eyes and the proposal which has come in respect of three Hon'ble members, the entire House is in favour of this proposal. So long as you do not take a stern action, I am of the opinion that the question is not of yours. If a history is created and if attempt is made to prevent and to harass the Speaker, the Chair in democracy, I am of firm belief that democracy in this country cannot survive." I ought to point out that there is no reference to any incident of 24th or 25th therein. (p) The Chief Minister continued further as follows:- "Hon'ble Speaker, the forces, which have been defeated in election, are not going to win in future. They want to put pressure, they want to finish the democracy. On several occasions, this fact has been proved in this country and particularly in this state. At one end the Bhartiya Janta Party, which is challenging the (communal) harmony at Ayodhya and the whole of India as also our unity, our fraternity and our integrity, it is giving a threat to the harmony of our State by creating such type of indecent behaviour on the other end. The Bhartiya Janta Party and its leadership have fully supported these acts. Hence if the person doing such act, whether he is a Honourable member of any party, is encouraged, in my view, the democracy is not going to last long in this country. Hence, I support the proposal brought by Sri Ramendra Babu, Honourable member of C.P.I. on behalf of the entire House and we consider it proper that you may take action for terminating their membership for the entire period to come. I on behalf of myself and on behalf of the entire House, support his proposal." (underline supplied) (q) I ought to point that at this juncture the Hon'ble Speaker impressed the members that in the light of the feelings, expressed by honourable members of this question, he will give his ruling later on. (r) However, it seems that some of the members were not satisfied with the same but they observed that the proposal has been placed on behalf of Sri Ramendra Kumar and has been supported by one other member and also supported by the leader of the House. (r) However, it seems that some of the members were not satisfied with the same but they observed that the proposal has been placed on behalf of Sri Ramendra Kumar and has been supported by one other member and also supported by the leader of the House. Accordingly, this proposal has to be accepted or rejected and that the question of ruling does not arise on this proposal. (s) Thereafter the Chief Minister stated as follows: Shri Lalu Prasad (Chief Minister)—"Hon'ble the Speaker, this House is above all and whatever decision this (entire) House takes, the House has an absolute right to punish, which is not to be challenged anywhere. So you should put the motion and get yourself acquainted with the opinion of the House. Now any question of ruling on it does not arise. " (t) Thereafter the proposer Shri Ramendra Kumar said as follows:- "Hon'ble the Speaker, rules and regulations may kindly be perused. Rule 245 of the Rules and Regulations say that privileged motion can be moved on it, but the Speaker himself raised the matter when he was entering into the House and then the Hon'ble member raised his hand, hand against him with ill-intention and hurled uncharitable words. The Speaker himself narrated this matter also that one respectable member abused him in the House. You yourself said such things and then there was no need of motion in it. Privilege motion shall be brought only if any occurrence shall take place outside the House." xx xx xx xx xx xx "Hence there is no necessity of bye-motion, when the Chair itself is saying. The Chair is saying that the incident has taken place and then it has been a contempt. This is a case of privilege." (u) Thereafter from the records of proceedings it appears as follows- Chairman—The question is this:- "That the membership of Hon'ble members Sarbshree Bachcha Chubey, Sakuni Choudhary and A vanish Kumar may be terminated on the charge of the contempt of the House." Proposal approved. I understand that this proposal has been passed unanimously without any protest (Thumping in the Assembly at this occasion)." 17.8. From the aforesaid it becomes clear that there is no definite allegation against any of these petitioners. The allegations made are very vague. I understand that this proposal has been passed unanimously without any protest (Thumping in the Assembly at this occasion)." 17.8. From the aforesaid it becomes clear that there is no definite allegation against any of these petitioners. The allegations made are very vague. The only allegation is that these persons are supposed to have misbehaved with the Hon'ble Speaker and hurled abuses against him outside his chamber. There is no definite allegation against all or any particular member or members out of the three. It is not stated which of these three petitioners are guilty of what kind of misconduct or misbehaviour, when and how. 17.9. The most important aspect of the matter is that though in the impugned notification, which was issued under the orders of the Speaker, there are allegations regarding some incident and conduct of 24.3.92 in the Assembly premises and the House itself, as it would appear from the records of proceeding, on the 24th, there was no effective proceeding in the House excepting passing some condolence resolution. No other business was transacted on that day. Further, admittedly they were not present in the House on that day because these three members had been boycotting the Assembly along with others because of some alleged incident of masscare of some members of some caste/community at some place in Bihar which is one of the usual common and regular features of this State and, accordingly, they have been "boycotting" the House. Accordingly, the allegation regarding their conduct in the House itself on 24.3.92 is without any substance as it is non-existent. 17.10. So far as 25th of March is concerned, the allegations against the three petitioners are relating to some incident and conduct not only in the Assembly premises but also in the House itself. However, the admitted position is that on this date also, for similar reasons, none of these three petitioners were present in the House itself though they were present in the Assembly premises. Accordingly, and in any event, the allegations, which refer to their conduct in the House itself on the 25th of March as a ground of termination of their membership, is without any substance and is non-existent. 17.11. For the aforesaid reasons, I hold that there was malice in law. There was non-application of mind as reliance was placed on some non-existing grounds and accordingly it was malafide and arbitrary. 17.11. For the aforesaid reasons, I hold that there was malice in law. There was non-application of mind as reliance was placed on some non-existing grounds and accordingly it was malafide and arbitrary. It also amounts to violation of Article 14. 17.11.1 So far as malice in fact is concerned, the relevant averment is in paragraph 12 of the second petition (CWJC 2782/92) which is quoted hereinbelow:- "That it is stated that the impugned order is mala fide order in as much as the respondent no. I was carrying personal grudge against the petitioner. In this context it is stated that one Mr. Sahnawaj Khan a close relation of the respondent no. 1 was posted as the Circle Officer, Patahi, which falls within the petitioner's Assembly constituency. The petitioner had made several allegations against the said officer/office. The respondent no. 1 has close ties and friendships with Mr. Motiur Rahman whom the petitioner had defeated in the election. Because of the aforesaid reasons the respondent no. 1 was carrying personal grudge against the petitioner." 17.11.2. There is no denial of the same by any affidavit affirmed by respondent no. 1 himself. However, even if this remains uncontroverted and is to be treated as admitted, on this ground alone we cannot hold the decision/resolution against the petitioner in the second writ petition to be bad on the ground of malice in fact. I have already discussed the proceedings in detail. From this it is clear that though the decision/resolution/notification was based on the alleged conduct of the petitioners against the Speaker and that certain statements were made by the Speaker in this regard, however the decision was taken by the House as a whole. 17.11.3. Accordingly, I reject the allegation of mala fide based on malice in fact alleged against the Speaker. 17.12. Accordingly, I accept the contention of mala fide so far as malice in law is concerned, but reject the contention so far as malice in fact is concerned. Accordingly, I hold that the impugned resolution and notification to be bad and illegal as they were passed mala fide. This is also in violation of Article 14. 18. Natural Justice 18.1. The next main topic is the question of principles of natural justice and fair play. Accordingly, I hold that the impugned resolution and notification to be bad and illegal as they were passed mala fide. This is also in violation of Article 14. 18. Natural Justice 18.1. The next main topic is the question of principles of natural justice and fair play. The first question is whether this principle is applicable to any decision/resolution of the Legislature of a State while it exercises its power of expulsion, for the breach of its privilege. The next question is that if such principle applies, then whether in the present case, the impugned resolution/notifications can be said to be in violation of the said principle. The ultimate question is that even if such principles apply and the said notifications/resolutions are in violation of such principles; whether it can be said that even in that event the impugned resolution/decision of the Legislature cannot be declared as illegal or invalid in view of the provisions of Article 212 of the Constitution. 18.2. Before I deal with the question whether the impugned orders/resolutions are bad and illegal on the ground of violation of the principles of natural justice, I shall at first consider some decisions of the Supreme Court on the scope and extent of the said principle. 18.2.1. In the case of Union of India and another v. Tulsiram Patel and others: AIR 1985 SC 1416 the Supreme Court examined the principles of natural justice thoroughly and extensively. It was pointed out that these principles are not the creation of Art. 14 and that Art. 14 is not their begetter but their constitutional guardian. It was pointed out that principles of natural justice trace their ancestry to ancient civilizations and centuries long past. In this context some very important observations were made regarding 'natural law' which have become much more important in the course of the next decades (paras 72 to 80). We only quote one paragraph:- "There are certain basic values which man has cherished throughout the ages. But man looked about him and found the ways of men to be cruel and unjust and so also their laws and customs. We only quote one paragraph:- "There are certain basic values which man has cherished throughout the ages. But man looked about him and found the ways of men to be cruel and unjust and so also their laws and customs. He saw men flogged, tortured, mutilated, made slaves, and sentenced to row the galleys or to toil in the darkness of the mines or to fight in an arena with wild and hungry beasts of the jungle or to die in other ways a cruel, horrible and lingering death He found judges to be venal and servile to those in power and the laws they administered to be capricious, changing with the whims of the ruler to suit his purpose. When, therefore, he found a system of law which did not so change, he praised it. Thus the Old Testament in the Book of Ester (1.19) speaks admiringly of the legal system of the Achaemenid dynesty (the First Persian Empire) in which "a royal commandment" was "written among the laws of the Persians and the Medes, that it be not altered". Man saw cities and towns sacked and pillaged, their populace dragged into captivity and condemned to slavery the men to labour, the women and the girls to concubinage, and the young boys to be castrated into eunchs their only crime being that their ruler had the misfortune to be defeated in battle and to lose one of his cities or towns to the enemy. Thus, there was neither hope nor help in man-made laws or man-established customs for they were one-sided and oppressive intended to benefit armed might and monied power and to subjugate the down-trodden poor and the helpless needy. If there was any help to be found or any hope to be discovered, it was only in a law based on justice and reason which transcended the laws and customs of men; a law made by someone greater and mightier than those men who made these laws and established these customs. Such a person could only be divine being and such a law could only be "natural law" or "the law of nature" meaning thereby "certain rules of conduct supposed to be so just that they are binding upon all mankinds. Such a person could only be divine being and such a law could only be "natural law" or "the law of nature" meaning thereby "certain rules of conduct supposed to be so just that they are binding upon all mankinds. It was not "the law of nature" in the sense of "the law of the jungle" where the lion devours the lamb and the tiger feeds upon the antelope because the lion is hungry and the tiger famished but a higher law of nature or "the natural law" where the lion and the lamb lie down together and the tiger frisks with the antelope." (para 73) 18.2.2. Thereafter various aspects of the Principle were discussed (Paras 81 to 83). Next the Supreme Court, considered the question as to how those principles have been interpreted in the Courts and within what limits they were to be confined. In this context we may refer to the following:- "How then have the principles of natural justice been interpreted in the courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative processes. They constitute the basic dements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the 'preserve of any particular race or country but is shared in common by all men. The first rule is "nemo judex in crusa sua" or "nemo debet esse judex in propria causas" as stated in (1605) 12 Co. Rep. 114, that is, "no man shall be a judge in his own cause". Coke used the form "aliquis non debet esse judex in proppria causa quia non potest esse judex et pars" (Co. Litt. 141 a), that is, "no man ought to be a judge in his own cause, because he cannot act as judge and at the same time be a party". The form "nemo potest esse simul actor et judex", that is, "no one can be at once suitor and judge" is also at times used. The second rule and that is the rule with which we are concerned in these Appeals and writ Petitions is "audi alteram partem", that is, "hear the other side". The form "nemo potest esse simul actor et judex", that is, "no one can be at once suitor and judge" is also at times used. The second rule and that is the rule with which we are concerned in these Appeals and writ Petitions is "audi alteram partem", that is, "hear the other side". At times and particularly in continental countries the form "audietur et altera pars" is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partern rule, namely, "qui aliquid statuerit parte inaudita altera, aequum licet dixerit, haud aequum fecerit", that is, "he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right" (see Boswell's case (1605) 5 Co. Rep. 48b, 52a) or, in other words, as it is now expressed, "justice should not only be done but should manifestly be seen to be done". (para 84) "The two rules "nemo judes in causa sua" and "audi alteram partern" and their corollary that justice should not only be done but should manifestly be seen to be done have been recognize from early days in English courts. References to them are to be found in the Year Books-a title preferred to the alternative one of "Books of Years and Terms"-which were a regular series, with a few gaps, of law reports in Anglo-Norman or Norman-French or a mixture of English, Norman-French and French, which had then become the court language, from the 1270s to 1535 or as printed after the invention of the printing press, from 1290 to 1535, that is, from the time of Edward II to Henry VIII. The above principles of natural justice came to be firmly established over the course of centuries and have become a part of the law of the land. Both in England and in India they apply to civil as well as to criminal cases and to the exercise of judicial, quasi judicial and administrative powers. The above principles of natural justice came to be firmly established over the course of centuries and have become a part of the law of the land. Both in England and in India they apply to civil as well as to criminal cases and to the exercise of judicial, quasi judicial and administrative powers. The expression "natural justice" is now so well understood in England that it has been used without any definition in statutes of Parliament, for example, in section 3 (10) of the Foreign Compensation Act, 1969, and section 6 (13) of the Trade Union and Labour Reforms Act, 1974, which was later repealed by the Trade Union and Labour Relations (Amendment) Act, 1916. These rules of natural justice have been recognized and given effect to in many countries and different systems of law. They have now received international recognition by being enshrined in Article 10 of the Universal Declaration of Human Rights adopted and proclaimed by the General Assembly of the United Nations by Resolution 217A (III) of December 10, 1948. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which came into force on September 3, 1953 and Article 14 of the International Covenant on Civil and Political Rights adopted by the General Assembly Resolution 2200A (XXI) of December 16, 1966, which came into force on March 23, 1976. (Para 86) 18.2.3. It was next pointed out that Art. 14 does not set out in express terms either of the above two well-established rules of natural justice and accordingly the question which then arises is "whether the rules of natural justice form part of Art. 14, if so, how ?" In this connection, referring to various decisions i.e. (paragraphs 89 to 104) it was observed as follows:- "The principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject matter of this Article. Shortly put; the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14, therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Shortly put; the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14, therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to the legislation and State action but also where any tribunal, authority of body of men, not coming within the definition of "State" in Article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially." (Para 95) "The rule of natural justice, with which we are concerned in these Appeals and Writ Petitions, namely, the audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses, who are to give evidence against him, examined in his presence and have the right to cross-examine them, and to lead his own evidence, both oral and documentary, in his defence. The process of a fair hearing need not however, conform to the judicial process in a Court of Law, because judicial adjudication of cause involves a number of technical rules of procedure and evidence unnecessary and not required for the purposes of a fair hearing within the meaning at audi alteram partern rule in a quasi-judicial or administrative enquiry." (Para 96) 18.3. In the case of K. I. Shephard and others v. Union of India and others : (1987) 4 S.C.C. 431 reference was made to the following passages : "Mullan in Fairness: The New Natural Justice" 'Natural justice co-exist with, or reflected, a wider principle of fairness in decision making and that all judicial and administrative decision making and that all judicial and administrative decision makers had a duty to act fairly." State of Orissa v. Dr. (Miss) Binapani Dei : (1967) 2 S.C.R. 625 : AIR 1967 SC 1269 - "It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard, and meeting or explaining the evidence. No such steps were admittedly taken, the High Court, in our judgment, was right in setting aside the order of the State." In A. K. Kraipak v. Union of India: (1970) 1 S.C.R. 457 : (1969) 2 S.C.C. 262 a Constitution Bench quoted with approval the observations of Lord Parker in Re : (H) K. (an infant) : (1957) 1 All E.R. 226 (QBD), Hegde J. speaking for the Court stated: (SCC p. 272, para 20) : "Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry." These observations in A. K. Kraipak case were followed by another Constitution Bench of Supreme Court in Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore : (1970) 2 S.C.R. 600 : (1969) 3 S.C.C. 84 . In Swadeshi Cotton Mills v. Union of India; (1981) 2 SCR 533 : (1981) 1 SCC 664 a three Judge Bench of the Supreme Court examined this aspect of natural justice, Sarkaria, J. who spoke for the Court, stated: (SCC pp. 683-84, Para 28) : "During the last two decades, the concept of natural justice has made great strides in the realm of administrative law. Before the epoch-making decision of the House of Lords in Ridge v. Baldwin: 1964 AC 40; (1963) 2 All ER 66 (HL) it was generally thought that the rules of natural justice apply only to judicial or quasi-judicial proceedings, and for the purpose, whenever a breach of the rule of natural justice was alleged, courts in England used to ascertain whether the impugned action was taken by the statutory authority or tribunal in the exercise of its administrative or quasi-judicial power. In India also, this was the position before the decision dated February 7, 1967, of this Court in Dr. Binapani Dei case wherein it was held that even an administrative order or decision in matters involving civil consequences, has to be made consistently with the rules of natural justice. This supposed distinction between quasi-judicial and administrative decisions, which was perceptibly mitigated in Binapani Dei case was further rubbed out to a vanishing point in A. K. Kraipak v. Union of India......" "On the basis of these authorities it must be held that even when a State agency acts administratively, rules of natural justice would apply. This supposed distinction between quasi-judicial and administrative decisions, which was perceptibly mitigated in Binapani Dei case was further rubbed out to a vanishing point in A. K. Kraipak v. Union of India......" "On the basis of these authorities it must be held that even when a State agency acts administratively, rules of natural justice would apply. As stated, natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that they may be in a position (a) to make representations on their own behalf, (b) or to appear at a hearing or enquiry (if one is held) and (c) effectively to prepare their own case and to answer the case (if any) they have to meet." (Para 12) "Natural justice has various facets and acting fairly is one of them. RBI which monitored the three amalgamations was required to act fairly in the facts of the case. The situation necessitated a participatory enquiry in regard to the excluded employees. Since the decision to exclude them from service under the transferee banks is grounded upon a set of facts the correctness whereof they deny, if an opportunity to know the allegations and to have their say had been afforded, they could have no grievance on this score. The action deprives them of their livelihood and brings adverse civil consequences and could obviously not be taken on the ipse dixit of RBI officers without verification of facts. It is quite possible that a maneuvering officer of the banking company adversely disposed of towards a particular employee of such bank could make a report against such employee and have him excluded from further service under the transferee bank. The possibility of exclusion on the basis of some mistake such as to identity cannot also be ruled out. There is all the more apprehension of this type as the process has to be completed quickly and very often the records of a large number of employees have to be scrutinised. We are of the view that rules of natural justice apply to administrative action and in the instant cases the decision to exclude a section of the employees without complying with requirements of natural justice was bad." (para 13) "Fair play is a part of the public policy and is a guarantee for justice to citizens. We are of the view that rules of natural justice apply to administrative action and in the instant cases the decision to exclude a section of the employees without complying with requirements of natural justice was bad." (para 13) "Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well being of the citizens the rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. We do not think in the facts of the case there is any justification to hold that Rules of natural justice have been ousted by necessary implication on account of the time frame. On the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a hearing commensurate to the situation is afforded before a section of the employees before the scheme is finalised so that a hearing commensurate to the situation is afforded before a section of the employees is thrown out of employment." (para 15) 18.4 In the case of H. L. Teehan and others v. Union of India : (1989) 1 SCC 764 , it was not disputed that the employees were not given any opportunity of being heard before the impugned circular dated 8th March, 1978 was issued. It was, however, submitted on behalf of the management that there had been no prejudicial alteration of the terms and conditions of service of the employees by the impugned circular. In this context it was observed as follows:- "...... It was, however, submitted on behalf of the management that there had been no prejudicial alteration of the terms and conditions of service of the employees by the impugned circular. In this context it was observed as follows:- "...... It is now well established principle of law that there can be no deprivation of curtailment of any existing right, advantage or benefit enjoyed by a government servant without complying with the rules of natural justice by giving the government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a government servant will offend against the provision of Article 14 of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice. (para 11)" "It is, however contended on behalf of CORIL that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the conditions of their service by the impugned circular. In our opinion, the post-decisional opportunity of bearing does not sub-serve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly and chance of getting a proper consideration of the representation at such a post-decisional opportunity. (Para 12)" 18.5 In the case of Shridhar v. Nagar Palika : 1990 (Suppl) SCC 157, the appellant's appointment was set aside without giving any notice or opportunity of hearing to him. It was held that it is an elementary principle of natural justice that no person should be condemned without hearing. It was pointed out that the order of appointment conferred a vested right in the appellant to hold the post. That right cannot be taken away without affording an opportunity to him. In this context it was pointed out that any order passed in violation of principles of natural justice is rendered void. It was pointed out that the order of appointment conferred a vested right in the appellant to hold the post. That right cannot be taken away without affording an opportunity to him. In this context it was pointed out that any order passed in violation of principles of natural justice is rendered void. 18.6 In the case of Charanlal Sahu v. Union of India : (1990) 1 SCC 613 , which is related to the Bhopal Gas Leak Disaster case, it was held on the question of giving notice to the victims that the fact that the provisions of natural justice have to be complied with, is undisputed. This is well settled by various decisions of the Supreme Court. It was further observed that Indian Constitution mandates that clearly otherwise the Act and the actions taken would be violative of inter alia Article 14 of the Constitution. (Para 109) It was further observed as follows:- "...One of the important requirements of justice is that people affected by an action or inaction should have opportunity to have their say..." (Para 121) " ...It is true that not giving notice, was not proper because principles of natural justice are fundamental in the constitutional set up of this country. No man or no man's right should be affected without an opportunity to ventilate his views " (Para 124). " ... Principles of natural justice are integrally embedded in our constitutional framework and their pristine glory and primacy cannot and should not be allowed to be submerged by the exigencies of particular situations or cases. This Court must always assert primacy of adherence to the principles of natural justice in all adjudications. But at the same time, these must be applied in a particular manner in Particular cases having regard to the particular circumstances..." (Para 128) 18.7 In the case of S. N. Mukherjee v. Union of India: (1990) 4 SCC 594 , it was a case under the Army Act. In this case after referring to Kraipak's case it was held as follows:- "The object underlying the rules of natural justice 'is to prevent miscarriage of justice' and secure 'fair play in action'. In this case after referring to Kraipak's case it was held as follows:- "The object underlying the rules of natural justice 'is to prevent miscarriage of justice' and secure 'fair play in action'. As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of powers by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory frame work whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority, including exercise of judicial or quasi judicial functions the legislature, while conferring the said power may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to the effect as those contained in the Administrative Procedure Act, 1946 of U. S. A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia, whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case..." (Para 39) 18.8 In the case of Neelima Misra v. Harinder Kaur Paintal and others: (1990) 2 SCC 746 : AIR 1990 SC 1402 it was held that an administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin maxim audi alteram partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. The person concerned must be informed of the case against him and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken. In this context reference was made to Ridge v. Baldwin; (1963) 2 All England Reports 66, and State of Orissa v. Binapani Dei: (I967) 2 SCR 615. (Para 22) 18.8.2 It was further pointed out therein that the shift now is to a broader notion of "fairness" or "fair procedure" in the administrative action. As far as the administrative officers are concerned, it was pointed out that the duty was not so much to act judicially as to act fairly. In this context it was observed as follows:- "..... The duty to act judicially or to act fairly may arise in widely differing circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness in the administration. But then even such an administrative decision unless it affects one's personal rights or one's property rights, or the loss of or prejudicially affects something which would juridically be called at least a privilege does not involve the duty to act fairly consistently with the rules of natural justice. We cannot discover any principle contrary to this concept." (Para 23) 18.9 In the case of Union Carbide Corporation and others v. Union of India and others, (]991) 4 SCC 584, after referring to several decisions it was observed as follows:- "......Omission to comply with the requirements of the rule of audi alterm partem, as a general rule, vitiates a decision. Where there is violation of natural justice no resultant or independent prejudice need be shown, as the denial of natural justice is, in itself, sufficient prejudice and it is no answer to say that even observance of natural justice the same conclusion would have been reached. Where there is violation of natural justice no resultant or independent prejudice need be shown, as the denial of natural justice is, in itself, sufficient prejudice and it is no answer to say that even observance of natural justice the same conclusion would have been reached. The citizen 'is entitled to be under the Rule of Law and not the Rule of Discretion' and 'to remit the maintenance of constitutional right to judicial discretion is to shift the foundations of freedom from the rock to the sand." (paras 160 & 161) 18.10 In the case of Union of India and others v. Ex Constable Amrik Singh, (1991) 1 SCC 654 , the question involved was whether a personal hearing was required before disposing of a petition filed under section 117(2) of the Border Security Force Act, 1968 against an order of the Summary Security Force Court. On the question of the principle of natural justice it was observed as follows:- "The doctrine of principles of natural justice and audi alterm partem are part of Article 14 and that it was applicable to administrative orders also. In this connection reference was made to the case of Maneka Gandhi v. Union of India, (1978) 1 SCC 248 wherein it was held as follows:- "The audi alteram partem rule may, therefore, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time, it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the court should not be too ready to eschew it in its application to given case. It is a wholesome rule designed to secure the rule of law and the court should not be too ready to eschew it in its application to given case. The court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case." (para 4) 18.10.2 Reference was also made to the case of State of Haryana v. Ram Kishan (1988) 3 SCC 416 wherein it was held:- "The section must be interpreted to imply that the person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development. Not to do so will be violative of the principles of natural justice. Since there is no suggestion in the section to deny the right of the affected persons to be heard, the provisions have to be interpreted as implying to preserve such a right. Reference may be made to the observations of this Court in Baldev Singh v. State of Himachal Pradesh : (1987) 2 SCC 510 , that where exercise of a power results in civil consequences to citizens, unless the statute specifically rules out the application of natural justice, such rule would apply." 18.11 In the case of Shrawan Kumar Jha v. Ram Sewak Sharma reported in AIR 1991 S.C. 309 : 1991 (1) PLJR 68 (SC) the appointment of appellants as Assistant Teachers was cancelled on the ground that the appointing authority had no authority to make the appointments. It was held that the appellants should have been given an opportunity of hearing before cancelling their appointment. Admittedly, no such opportunity was afforded to them. It was held that it was settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. Accordingly, the order of cancellation was set aside on this short ground. Admittedly, no such opportunity was afforded to them. It was held that it was settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. Accordingly, the order of cancellation was set aside on this short ground. 18.12 In the case of the Scheduled Caste and Weaker Section Welfare Association v. State of Karnataka and others: AIR 1991 S.C. 1117 , the Supreme Court held that when a notification and further notification under Section 11 of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973 declaring whole area as slum clearing areas is made rescinding the earlier notifications, first under Section 3 (1) declaring certain area as slum area without hearing the affected parties, there is clear violation of the principle of natural justice. In this context it was observed as follows:- "It is one of the fundamental rules of our constitutional setup that every citizen is protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made. What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and tile body of persons appointed for that purpose. It is only where there is nothing in the statute to actually prohibit the giving or an opportunity to be heard, but on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported. (para 15)" 18.13 From the aforesaid decisions it is clear that the principle of natural justice and fair play, which includes the right to be heard, is a substantial right and not a matter of mere "procedure" and certainly not a matter of mere "irregularity of procedure". It is a basic, substantial and inherent right. It is a part of the fundamental right guaranteed by Art. 14. It is a basic, substantial and inherent right. It is a part of the fundamental right guaranteed by Art. 14. Where there is a violation of a principle of natural justice, it results in arbitrariness, which is the same as discrimination within the meaning of Art. 14. The said Article, however, is not the sole repository of the principle of natural justice but it is to guarantee that any law or State action violating them has to be struck down. It applies not only in respect of any legislation or State action but also against any tribunal, authority or body of men. As a matter of fact, the principles of natural justice apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of the 'State' is charged with the duties of deciding a matter. In such a case, the principles of natural justice require that the decisions on such matter must be fair and impartial. An order or decision which involves civil consequences or affects any existing right, must be made consistently with the rules of natural justice. The person concerned must know of the charges against him. He must be allowed to defend against the charges not only on the merits but also on the punishment proposed against him. There cannot be any deprivation or curtailment of any existing right, advantage or benefit enjoyed by a person without complying with the rules of natural justice. One of the important requirements of justice is that people affected by an action or inaction should have been given an opportunity to have their say. As it was observed in the Bhopal Gas Leak Disaster case, the principles of natural justice are integrally embedded in constitutional framework and their pristine glory and primacy cannot and should not be allowed to be submerged by the exigencies of particular situations or cases. The Court may also assert primacy of adherence to the principles of natural justice in all adjudications. It is true that the extent of application of principle of natural justice depends upon the particular provision whereunder jurisdiction has been conferred on some authority. But unless the Court is compelled to draw the inference by necessary implication, such principle of natural justice and fair play should not be excluded. It is true that the extent of application of principle of natural justice depends upon the particular provision whereunder jurisdiction has been conferred on some authority. But unless the Court is compelled to draw the inference by necessary implication, such principle of natural justice and fair play should not be excluded. Civil consequences must be made consistently with the rule expressed in the Latin maxim audi alteram partem. The decision makers should afford to any party to a dispute an opportunity to present his case. The person concerned must be informed of the case against him and the evidence in support must be given to meet the case before an adverse decision is taken. When it affects one's personal rights or one's property rights, or the loss of or prejudicially affecting something which would juridically be called at least a privilege, the duty to act fairly consistently with the rules of natural justice is involved. Where there is a decision and determination to the prejudice of a person, there is a duty to act judicially in exercise of such power and the rules of natural justice apply. Omission to comply with the requirement of the rule of audi alteram partem vitiates a decision. Where there is a violation of natural justice, no resultant prejudice need be shown as the denial of natural justice is in itself sufficient prejudice and it is not answer to say that even after observance of natural justice the same conclusion would have been reached. Whether this right has been specifically conferred or not is immaterial. The question is whether this right, which is an inherent, fundamental, basic and substantial right, has been excluded by necessary implication. 18.14 Having regard to above, I am of the opinion that the power of the legislature to expel a member, which I have found to have been conferred on a legislature under the latter part of clause (3), does not dispense with the principle of natural justice and fair play and the same must be held to be applicable in such cases. As would appear from the various cases, noted in various decisions, even in the case of an ordinary person, if his right is affected in any manner whatsoever, he must be given an opportunity to be heard. As would appear from the various cases, noted in various decisions, even in the case of an ordinary person, if his right is affected in any manner whatsoever, he must be given an opportunity to be heard. In the present case the rights of not a merely ordinary citizen is involved but it involves the case of the members of a legislative assembly who have been duly elected by the citizens of India under the Constitution and under the law framed by the Parliament. An elected member of a legislature holds a very important position. Excepting cases where he is disqualified in view of the provisions of the Constitution or under the relevant provision of 1951 Act, he continues to hold the post for the full period. The only exception is when he is expelled by any House for the breach of any of its privileges. In the first M. S. M. Sharma's case (ibid) the Supreme Court expressed their confidence that our Houses, like the House of Commons, will appreciate the benefit of publicity and will not exercise the power, privilege and immunities except in gross cases. We have held that this is a case of exercise of power and privilege of the legislature of the State inherent under the latter part of Clause (3) of Article 194 as it was conferred on the House of Commons which is independent of the question of composition or constitution of legislature. We have also held that this power is not negatived by or inconsistent with the provisions of Arts. 170, 171, 173, 191 or 192 of the Constitution. But before the exercise of such power, it is essential that an opportunity be given to the persons concerned against whom such serious allegations are made and against whom such serious steps, like expulsion from membership, is taken. Whether this is a "disqualification" within the meaning of the Constitution or not, as a result of this decision, his election as a member of the Assembly comes to an end. We are not concerned with the merits of the case as to whether they are guilty or not. We are also not concerned with the question as to what punishment is to be imposed. We are not concerned with the merits of the case as to whether they are guilty or not. We are also not concerned with the question as to what punishment is to be imposed. We have held that the legislature has got the power but in the exercise of such power a responsible body like the legislature must act not arbitrarily but in a responsible, fashion and in compliance with the principle of natural justice and fair play so that the action may not be charged as arbitrary. We have seen from various cases that even in cases of termination or expulsion of membership, such principle has been applied. An order which is in violation of principle of natural justice is also an arbitrary order and it violates Article 14. In our opinion, the provision of Article 14, at least so far as the principle of natural justice or fair play is concerned, would apply even in the case of exercise of power of expulsion by virtue of the provisions of the latter part of Clause (3) of Art. 194. Accordingly, whether looked at from the point of view of violation of Article 14 or otherwise, right to be heard is one of the rights implicit in the power of expulsion. In this context if a reference is made to the several cases in England and in our country, it will be found that practically in all such cases, the expulsion of a member was preceded by an opportunity of being heard. This is very clear from the decisions referred to above where such instances have been given. As a matter of fact, even in cases of outsiders who are not members of the Assembly, the matters have been enquired into and persons concerned given an opportunity and thereafter the punishment has been imposed. Accordingly, I am of the opinion that such principle is to be applied irrespective of the question of applicability of the fundamental right guaranteed under Article 14 of the Constitution. Before exercise of such power of expulsion, we would have expected that the legislature would have considered this matter carefully and dispassionately, as the Speaker at one stage wanted to do, before taking such a vital decision in such a fashion and in such a hurry. Before exercise of such power of expulsion, we would have expected that the legislature would have considered this matter carefully and dispassionately, as the Speaker at one stage wanted to do, before taking such a vital decision in such a fashion and in such a hurry. In this case not only that opportunity was not given to them, as they were not present in the House, they were not even in a position to deal with the charges levelled against them. Had such an opportunity of being heard was afforded to the members concerned, they would have been in a position to defend themselves and make their representation, if any, thereafter the legislature could have easily come to the conclusion whether they were guilty or not and if guilty, whether to impose any punishment and, if so, what punishment. It is unfortunate that before such severe punishment was imposed they were not given an opportunity of being heard and accordingly the principle of natural justice and fair play was violated. 18.15 The next question is whether Art. 212 is a bar to the grant of relief in such cases. In my opinion and as already stated where there is a violation of the principle of natural justice and fair play, as discussed above, it is a question of illegality and nullity and not a mere question of "irregularity of procedure". Accordingly, Article 212 of the Constitution is not a bar and it does not protect such illegal action which is to be treated as a nullity. The bar is only against judicial interference in the case of mere irregularity of procedure in the legislature. 18.16 In this context the position has been made clear by the Supreme Court in the Presidential Reference case as follows:- "Similarly, Art. 212 (1) makes a provision which is relevant. It lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. Art. 212 (2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure; or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Art. 212 (2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure; or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Art. 212 (1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the Legislative Chamber if his case is that the said proceedings suffer not from mere irregularity of procedure but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a Court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. That again is another indication which may afford some assistance in construing the scope and extent of the powers conferred on the House by Art. 194 (3). (Para 62)" 18.17.1. In view of the observations in Presidential Reference case it is not necessary to deal with any other case. However, we may refer to few of the cases decided on this point even before the Presidential Reference case. 18.17.2. In the case of Ananda Bihari Mishra v. Ram Sahay, AIR 1952 Madhya Bharat 31, it was observed as follows:- "It will be observed from the wording of Art. 212 that the validity of the proceedings of the Legislature can be called in question on a ground other than the ground of an irregularity of procedure. Thus, the proceedings would not be protected if they are held in defiance of the provisions of the Constitution or by exercising some powers which the Legislature under the Constitution does not possess." (Para 43) 18.17.3. In the case of Hem Chandra Sen Gupta and others v. The Speaker of Legislative Assembly of West Bengal and others, AIR 1956 Cal. 378 while referring to Article 212 of he Constitution the learned Judge observed that if, however, a law is passed or resolution adopted or a motion carried which is not in accordance with the Constitution, such a law, resolution or motion can be declared invalid by the Court of law. 18.174. 378 while referring to Article 212 of he Constitution the learned Judge observed that if, however, a law is passed or resolution adopted or a motion carried which is not in accordance with the Constitution, such a law, resolution or motion can be declared invalid by the Court of law. 18.174. In the case of Syed Abdul Mansur Habibullah v. The Speaker, West Bengal Legislative Assembly and others : A.I.R. 1966 Calcutta 363, the petitioner, a member of the West Bengal Legislative Assembly, felt that the first session of the West Bengal Legislature in the year 1965-66, had not legally begun and had moved the Court, under Art. 226 of the Constitution, for a writ of Mandamus upon respondents Speaker and Deputy Speaker of the West Bengal Legislative Assembly directing them to forbear and refrain from presiding over or doing or conducting the business of the said Assembly and also for a Writ of Mandamus upon the respondent Assembly directing it to refrain from conducting any business until such time as the Assembly be properly begun and also for a declaration that the proceedings of the respondent Assembly, in so far pretended to be held from February 8, 1965, be declared to be void, illegal and of no effect. As the learned Judge pointed out, the first question was whether the Court had any jurisdiction to issue a mandate upon the Legislature of the nature prayed for. After quoting passages from the Presidential .Reference Case, it was held that "if it can be established that the proceedings inside the Legislative chamber have become illegal or unconstitutional, by reason of the happenings stated in the petition, this Court is competent to issue the mandate as prayed for". (para 6). It was held that the consequence of non-delivery of whole of the address by word of the mouth, was not such as rendered the subsequent proceedings inside the Legislative Chamber illegal but merely resulted in procedural irregularity. Such an irregularity cannot be called in question under Clause (2) of Art. 212. It was summarised as follows:- "So that this judgment may not be misunderstood, I desire to make the position clear. The provisions of Art. 179 are mandatory. Unless the provisions are complied with, that is to say, unless the Governor delivers a speech informing the Legislature of the causes of the summons, the Legislature cannot meet to transact legislative business. It was summarised as follows:- "So that this judgment may not be misunderstood, I desire to make the position clear. The provisions of Art. 179 are mandatory. Unless the provisions are complied with, that is to say, unless the Governor delivers a speech informing the Legislature of the causes of the summons, the Legislature cannot meet to transact legislative business. A Governor cannot decline to deliver a speech and thus refuse to perform a constitutional duty. If a Governor is incapacitated from delivering a speech himself, the President may make other provisions, under Art. 160 of the Constitution, for performance of that constitutional function of the Governor. But when the Governor makes due attempt to perform the duty under Art. 176 but fails and makes up the failure by publication of the address to the members of the Legislature by a well-known method, namely, by laying the address on the table of the House, the duty is merely irregularly performed and the validity of such performance shall not be called in question by reason of such irregularity alone. But if a Legislature meets and transacts legislative business without the preliminary of an address by the Governor, when required under Art. 176, its proceedings are illegal and invalid and may be questioned in a Court of law." 18.18.1. In this connection it is necessary to refer to an observation made in M. P. case to the following effect:- "If the Assembly has the power and privilege of expelling a member resulting in the vacation of his seat, then the petitioners cannot challenge in this Court the correctness, propriety, legality or validity of the resolutions passed by the Assembly on 17th March, 1966 expelling them. The occasion and the manner of the exercise of power are matters of which the House alone is the Judge. The validity of the proceedings in the Legislature leading to the passing of the resolutions expelling the petitioners cannot be called in question in this Court as is clear from Art. 212 (1) which lays down that "the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure". The petitioners' objection that the resolutions expelling them were passed without giving them any opportunity to explain the allegations against them cannot, therefore, be entertained here." (Para 11) 18.18.2. The petitioners' objection that the resolutions expelling them were passed without giving them any opportunity to explain the allegations against them cannot, therefore, be entertained here." (Para 11) 18.18.2. I am unable to accept fully and wholly this general observation as an absolute proposition of law. In my opinion, the learned Judge has not appreciated the true scope and effect of Article 212. The Article does not create a total or a general bar. It merely creates a bar, so far as "irregularity of procedure" is concerned. There is no general bar that the validity of any proceeding in the Legislature shall not be called in question "on any ground whatsoever". 18.19.1. I am also unable to agree with the Madras decision in this respect where it was held that in view of Article 212, the question of principle of natural justice does not apply in the case of a resolution of expulsion. In this context it was observed as follows:- "Now it appears that Art. 212 (1) creates a complete bar to go into the validity of the proceedings of the Legislature. A distinction was sought to be made between illegality and irregularity and the contention raised was that Art. 212 (1) refers merely to irregularity of procedure and therefore in the present case in which the petitioners who were not even in the House and as matter of fact they were all confined to jails, were not given any opportunity to have their say in the matter of expulsion, the procedure adopted by the House must be treated as not irregular but illegal. Now, a decision taken without following the required procedure would in a sense be the result of irregularity in the matter of procedure. There is a well-established distinction between "illegality" and "irregularity". 'Irregularity' is not synonymous with "illegality". The term 'illegality', in its common acceptance, signifies that which is contrary to the principles of law as distinguished from rules of procedure. The word 'illegality' is synonymous with 'Unlawfully'. "An 'irregularity' is a want of adherence to some prescribed rule or mode of proceeding and consists in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner'. The word 'illegality' is synonymous with 'Unlawfully'. "An 'irregularity' is a want of adherence to some prescribed rule or mode of proceeding and consists in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner'. Illegality' on the other hand, is properly predicable of radical defects only, and signifies that which is contrary to the principles of law as distinguished from mere rules of procedure (see 'Words and phrases' permanent Edn. Vol. .20, pp. 57, 58, 59). The whole purpose of Art. 212 (1) appears to us to shut out any enquiry in the validity of a proceeding in the Assembly on the ground of a defect in the procedure. Absence of opportunity to the person who is likely to be affected by the effect of the decision of the Assembly is undoubtedly a decision which may suffer from irregularity in procedure. The constitutional mandate cannot however be ignored and the Constitution makers clearly intended that the Legislature would not be answerable to a court in the matter of its proceedings on the ground of validity of procedure. "(para 98). "It has to be borne in mind that Art. 212 (1) refers to the challenge to the proceedings. Proceedings themselves involve observance of some procedure and if the observance of the procedure in respect of any proceeding before the House is sought to shut out from challenge under Art. 212 (1), it is difficult to see how the resolution of expulsion can be open to challenge." (para 99). "This Court bas also taken the view in a matter arising out of breach of privilege that the question of punishment for a breach of privilege is a matter exclusively within the jurisdiction of the Legislature and Art. 212 forcloses any scrutiny by the court with regard to the procedure adopted by the Legislature (see A. M. Paulraj v. Speaker, Tamil Nadu Legislative Assembly AIR, 1986 Mad. 248 (F. B.)... ..." (para 100) "Art. 212 of the Constitution of India seems to give constitutional recognition to the established position in England as laid down as far back as in 1894 in Bradlaugh v. Gossett (1884) 12 QBD 271... ..." (para 10]) "we may also point out that in Yeshwant Rao's case AIR 1967 Madh. Pra. 248 (F. B.)... ..." (para 100) "Art. 212 of the Constitution of India seems to give constitutional recognition to the established position in England as laid down as far back as in 1894 in Bradlaugh v. Gossett (1884) 12 QBD 271... ..." (para 10]) "we may also point out that in Yeshwant Rao's case AIR 1967 Madh. Pra. 95 the Madhya Pradesh High Court has taken a similar view that once a privilege is found to exist, it is for the House to judge of the occasion and of the manner of its exercise and the Court cannot interfere with an erroneous decision by the House or its Speaker in respect of a breach of privilege." (para 105). "We must therefore reject the contention that the impugned resolution should be quashed on the ground that it is vitiated by a procedural irregularity or illegality." (para 106). "We would summarise our conclusions in the form of the following propositions:- xx xx xx (16) The resolution is not open to challenge on the ground that the concerned members were not heard as such a challenge would be a challenge on the ground of failure to follow a procedure which would amount to an 'irregularity' and not an 'illegality' having regard to the provisions of Art. 212 of the Constitution of India. (para 112)" xx xx xx 18.19.2 Accordingly, though I agree that no one can challenge in a Court of law the "correctness" or "propriety" of any resolution of any legislature, I am not in a position to agree with the views of the learned Judge to the effect that if the Assembly has the power and privilege of expelling a member resulting in the vacation of his seat, then the petitioners cannot challenge in this Court, the "legality" or "validity" of the resolution passed by the Assembly expelling a member resulting in the vacation of his seat. The question of "correctness" and "propriety" of such a situation should not be treated in the same footing or equated with the question of "legality" or "validity" of the same. The two things are completely different. Further, so far as the question of opportunity of being heard is concerned, I am unable to agree with the same which is dealt with in one sentence. The two things are completely different. Further, so far as the question of opportunity of being heard is concerned, I am unable to agree with the same which is dealt with in one sentence. Such a cursory and abrupt observation, which is based solely on only a part of Article 212 and which does not take into consideration the principle of natural justice and fair play cannot be accepted to be a correct proposition of law. In my opinion, it is merely an observation and not a proposition of law. Further, it may be pointed out that since 1967, when the judgment was delivered the principle of natural justice and fair play has undergone a great change starting with Kraipak's case as indicated above and naturally this could not be taken into consideration by the learned Judge. 18.20 It is to be noticed that in that case while rejecting the contention based on natural justice, re1iance was placed (para 100) on a Full Bench decision in A.I.R. 1986 Madras 248 (A.M. Paulraj v. Speaker, Tamil Nadu Legislative Assembly) and a reference was made to second M. S. Sharma's case (ibid). However, it may be pointed out that in that connection with the scope of Art. 212, no reference was made to the relevant passage (para 62) in the Presidential Reference case (ibid) relating to Art. 212 which we have quoted above. The other aspect of the matter is that in the case of A. M. Paulraj v. Speaker (ibid), it was held that the Rules framed under Art. 208 of the Constitution did not provide for such hearing. In this connection it may also be pointed out that in the second M. S. Sharma's case the question of principle of natural justice was not involved and the scope of Article 212 in connection with the violation of such principle was not considered, as it was not required to be considered. As already discussed above, the principle of natural justice has been developed very recently and much later. It appears that the Madras decision quoted above was totally influenced by the decision in Bradlaugh v. Gosset (1884) 12 QBD 271 in this connection. As already discussed above, the principle of natural justice has been developed very recently and much later. It appears that the Madras decision quoted above was totally influenced by the decision in Bradlaugh v. Gosset (1884) 12 QBD 271 in this connection. In our opinion, the concept of justice in England in the year 1884 differs from the concept of justice 100 years later in India under a written Constitution which pronounced a sovereign socialist secular democratic republic with a provision for fundamental right. This is particularly so after the law regarding the principle of natural justice and fair play has been clearly laid down by the Supreme Court as we have considered above. This decision, in our opinion, so far as this aspect of the matter is concerned; does not properly consider the distinction between nullity and illegality on one hand and mere "irregularity of procedure" on the other and does not consider the scope of Article 212 from this aspect. 19. Rules Under Art. 208—Violation of 19.1 Another question raised is that the impugned action is illegal in as much as the "motion" upon which the resolution was passed by the House was not strictly a "motion" within the meaning of the Rules of Procedure framed by the Assembly under Art. 208 of the Constitution. 19.2 So far as the rules framed under Art. 208 of the Constitution are concerned, they are subject to the fundamental rights guaranteed by the Constitution. In other words, where the House makes rules for exercising its powers under the latter part of Art. 194 (3), those rules must be subject to the fundamental rights of the citizens. Reference may be made in this connection to Presidential Reference case (para 61). However, these are generally Rules of Procedure. In view of Art. 212, no action of a Legislature can be challenged when it is a case of mere "irregularity" in procedure. Accordingly, when the violation of any of these Rules is alleged and when it is a case of mere irregularity, it cannot be challenged in view of Art. 212. However, Art. 212 does not protect any action of the Legislature which is found to be illegal and is not a mere irregularity. Accordingly, when the violation of any of these Rules is alleged and when it is a case of mere irregularity, it cannot be challenged in view of Art. 212. However, Art. 212 does not protect any action of the Legislature which is found to be illegal and is not a mere irregularity. 19.3 In this connection reference may be made to the Second M. S. M. Sharma's case (ibid) (para 10) which is set out hereinbelow: "It now remains to consider the other subsidiary questions raised on behalf of the petitioner. It was contended that the procedure adopted inside the House of the Legislature was not regular and not strictly in accordance with law. There are two answers to this contention, firstly, that according to the previous decision of this Court, the petitioner bas not the fundamental right claimed by him. He is, therefore, out of Court. Secondly, the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the contention raised on behalf of the petitioner. No Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business. Possibly, a third answer to this part of the contention raised on behalf of the petitioner is that it is yet premature to consider the question of procedure as the Committee is yet to conclude its proceedings. It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference by this Court under Art. 32 of the Constitution. Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference by this Court under Art. 32 of the Constitution. Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non-compliance with rules of procedure cannot be ground for issuing a writ under Art. 32 of the Constitution : vide Janardan Reddy v. State of Hyderabad, 1951 SCR 344 : ( AIR 1951 SC 217 ) (Para 11)" 19.4 Reference may also be made to the Presidential Reference case (Para 62) which is set out hereinbelow:- "Similarly, Art. 212 (1) makes a provision which is relevant. It lays down that the validity of any proceedings in the Legislature of a Slate shall not be called in question on the ground of any alleged irregularity of procedure. Art. 212 (2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Art. 212 (1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the Legislative Chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. That again is another indication which may afford some assistance in construing the scope and extent of the powers conferred on the House by Art. 194 (3). (Para 62)" 19.5 In the present case even if the contention of the petitioners is correct to the extent that there was no proper "motion" within the meaning of the said Rules, in my opinion, it is a case of "mere irregularity" and protected from judicial scrutiny in view of Art. 212. Accordingly, I reject this contention made on behalf of the petitioners. Accordingly, I reject this contention made on behalf of the petitioners. 20 Without intending to summarise my findings as above, I shall answer the questions formulated above, in the following manner:- 1. Yes; but to a limited extent. The jurisdiction of the writ Court in a case of this nature is not totally or wholly barred. The writ Court can examine the scope and extent of the powers and privileges of the legislature. However if the exercise of power by the legislature is within the scope and extent of its power, then the correctness or propriety of such exercise of power by the legislature cannot be gone into by the Court. However, if there is any illegality in any such action, then the writ Courts can go into the same and decide accordingly. In that case Art. 212 would not be a bar, because the said Article is attracted in cases of mere irregularity of procedure and not illegality as such. 2 (a) Yes; the law made under the first part of clause (3) of Art. 194 is subject to the provisions of the Constitution including Part III thereof. (b) The latter part of clause (3) of Art. 194 of the Constitution does not exclude all the provisions of the Constitution. As observed in the Presidential Reference case, though all the four clauses of Arr. 194 are not in terms made subject to the provisions contained in Part III, nevertheless if for other valid considerations, it appears that the contents of clause (3) may not exclude the applicability of certain relevant provisions of the Constitution, it would not be reasonable to suggest that these provisions must be ignored just because the said clause does not open with the words "subject to the other provisions of the Constitution". For the purpose of this case, it would be sufficient to hold that it is subject to Art. 14 to the extent that the exercise of such power of punishment for breach of its privilege must not be arbitrary or mala fide or in violation of the principles of natural justice and "fair play", which includes the opportunity of being heard. In the facts of the case it is not necessary to go into the broader question, whether any other provisions of the Constitution including those contained in Part III thereof, is applicable or not. 3 (a) Yes. In the facts of the case it is not necessary to go into the broader question, whether any other provisions of the Constitution including those contained in Part III thereof, is applicable or not. 3 (a) Yes. At the time of the commencement of the Constitution of India, the House of Commons had the power to take action against its members for breach of its privilege including exercise of the power of expulsion. (b) No. The exercise of such power of expulsion did not arise solely or exclusively out of the power of the House of Commons regarding composition or constitution of the House. 4 (a) Yes. Such power or privilege was conferred on Indian Legislatures at the time of commencement of the Constitution under the latter part of Clause (3) of Art. 194. This is irrespective of the question as to whether there is any provision in the Constitution which negatives this power or which prevents this power to be conferred on any Legislature in India. (b) No. There is nothing in the Constitution, particularly in Articles 170, 171, 173, 190 or 191, which negatives such power and privileges, including the power of expulsion of one of its members, or with which such power or privilege can be said to be inconsistent. (c) No. Inspite of Rule 63 and inspite of the absence of any express provision regarding the exercise of the power of expulsion in such Rules, the Bihar Legislative Assembly has all the powers and privileges as conferred by and in view of the latter part of Clause (3) of Art. 194 including the power to impose the penalty of punishment. 5(a) No. Such power has not been given up or modified or curtailed substantially by the House of Commons after the commencement of the Constitution of India and before the introduction of the 44th Constitutional Amendment which came into effect on 20.6.79. (b) No. The 44th Amendment of the Constitution did not bring about any substantial change in the scope and extent of the powers and privileges conferred on the Legislatures in India by the latter part of Clause (3) of Article 194. In other words, it cannot be said that the power of Legislature of a State since the introduction of 44th Amendment, was not the same as the power of Legislature of the State at the time of commencement of the Constitution. In other words, it cannot be said that the power of Legislature of a State since the introduction of 44th Amendment, was not the same as the power of Legislature of the State at the time of commencement of the Constitution. Excepting that if a particular legislature had in specific terms, curtailed or modified its power or privileges after the commencement of the Constitution and before the 44th Amendment come into force, then such amendment would preserve only those powers which are not so curtailed or modified. (c) No. There would be no automatic modification or curtailment of such power and privileges because of curtailment or modification, if any made by the House of Commons until and unless the legislature concerned had independently, specifically and expressly modified or curtailed its powers and privileges after the commencement of the Constitution and before the 44th Amendment coming into force. 6. Yes. If the act or conduct otherwise amounts to breach of privilege, if committed within the four walls of the House, it can still be treated as a breach of privilege, if it is committed in any other part of the Assembly premises, or in front of the chamber of the Speaker therein including the corridor leading to the House, while the Speaker or the Presiding Officer was proceeding towards the House from his Chambers to conduct its business. 7(a) Yes. Any resolution/decision of the Legislature, exercising the power of expulsion on the ground of breach of privilege, can be challenged on the ground of mala fide, whether malice in law or in fact. (b) So far as the allegations regarding 24.3.92 is concerned, on that day there was no proceeding, excepting passing a condolence resolution. The petitioners were not also present in the House on that day. So far as the allegation regarding 25.3.92 is concerned, admittedly the petitioners were not present in the House on that day. Accordingly, the allegations regarding their conduct in the House itself on 24th and 25th of March, 1992 is arbitrary and mala fide as It discloses non-application of mind. It is also violative of Article 14 of the Constitution. In the facts and circumstances of this case, malice in fact has not been established. 8(a) Yes. Accordingly, the allegations regarding their conduct in the House itself on 24th and 25th of March, 1992 is arbitrary and mala fide as It discloses non-application of mind. It is also violative of Article 14 of the Constitution. In the facts and circumstances of this case, malice in fact has not been established. 8(a) Yes. The principle of natural justice or "fair play" is applicable to any decision/resolution of the Legislature of a State, in exercise of its power of imposing punishment particularly the power of expulsion of its members, for the breach of its privileges. (b) Yes. The impugned resolutions/notifications are in violation of the said principles as no opportunity of being heard was given to the petitioners. (c) No. Such resolution/decision/notification can be declared to be invalid and illegal on the ground of principles of natural justice and fair play. In such a case it is a question of illegality and nullity. It also amounts to violation of Article 14 of the Constitution. Article 212 is no bar when there is violation of the principles of natural justice and fair play, inasmuch as in such a case it is a case of illegality and nullity and not mere "irregularity of procedure" as provided in the said Article. 9(a) No. Subject to answers to questions 7 and 8 above, no decision/resolution of a Legislature can be declared to be invalid, merely on the ground of violation of the provisions of Rules of Procedure framed by the Legislature in question in exercise of power conferred by Art. 208 of the Constitution when it is not a question of illegality but "mere irregularity" within the meaning of Article 212. (b) In the facts of this case even if there was no "motion in terms of such Rules and even if it amounted to violation of any such Rule, on that ground alone the said resolution/notification cannot be challenged or set aside because it would be a case of mere irregularity of procedure within the meaning of Article 212 and not a case of illegality or nullity. 21. Before I conclude I may quote the observation made by the majority judgment in the Presidential Reference case in its conclusion which I think to be very apposite in the facts and circumstances of this case: "...... 21. Before I conclude I may quote the observation made by the majority judgment in the Presidential Reference case in its conclusion which I think to be very apposite in the facts and circumstances of this case: "...... We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct. We venture to think that what is true of the Judicature is equally true of the Legislatures." (para 142). Order 22. Accordingly, we allow the two writ petitions. There will be a declaration that the impugned resolution and notification are illegal, nullity, without jurisdiction and that no effect can or is to be given to the same. There will also be a declaration that the petitioners at all material times have been and still are members of the Legislative Assembly of Bihar and they shall continue to do so until and unless their membership is terminated in accordance with law. There will also be a writ and/or order of and/or in the nature of mandamus restraining giving any effect or any further effect to the said impugned resolution and notifications in any manner whatsoever. 23. There will be no order as to costs. 24. Before I conclude, I would like to place on record my deep and sincere appreciation of the manner in which these cases were conducted by Shri Basudeva Prasad, Shri Tara Kant Jha and Shri Shanti Bhushan, the learned Advocates appearing for the parties. I am grateful for their very able argument and the assistance received from them, which was rendered in the true tradition of the bar. S. K. Singh, J. - I agree.