RAJENDRA SINGH RANA AND OTHERS v.

SWAMI PRASAD MAURYA AND OTHERS

SUBMITTED TO: Mr. KUMAR KARTIKEYA

SUBMITTED BY: ABHISHIKTA SINHA 3rd Sem, BBA LLB (A) ROLL No. 1282001

PARLIAMENTARY PRIVILEGES

Parliamentary privilege is nothing but the sum of the rights enjoyed by each House collectively as a constituent part of Parliament and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. It guarantees to every member freedom of speech in Parliament and provides immunity from proceedings in any Court of law in respect of anything said or any vote given by him in Parliament or in any of its Committees. The object of parliamentary privileges is to safeguard the freedom, the authority and the dignity of Parliament. Privileges are necessary for the proper exercise of the functions entrusted to Parliament by the Constitution. The privileges of the house has two aspects - (1) external and (2) internal. they refrain anybody from outside the house to interfere with its working, this means that the freedom of the speech and action are restricted to some extent. The privileges also restrain the members of the house from doing something which may amount to an abuse of their position.

FACTS OF THE CASE ( SRI RAJENDRA SINGH RANA AND OTHERS v. SWAMI PRASAD MAURYA AND OTHERS)
A coalition government was formed headed by Ms. Mayawati, leader of Bahujan Samaj Party (B.S.P) in the election of February 2002. On 25.8.2003, the cabinet took a decision of dissolving the party. On 26.8.2003, Ms. Mayawati submitted the resignation of her cabinet. After the cabinet decision to recommend the dissolution of the Assembly and before Ms. Mayawati cabinet actually resigned, the leader of the Samajwadi Party staked his claim before the Governor for forming a Government. On 27.8.2003, 13 MLA's elected to the assembly on the tickets of BSP met the governor and requested him to call the Samajwadi party to form the government. The dispute arose when the leader of the Legislature BSP filed a petition against the 13 MLA on the ground of defection, before the speaker praying that the 13 MLA should be disqualified for supporting the government of Mr. Mulayam singh yadav, leader of Samajwadi party.

ISSUE
Now the question which arises is whether the decision of the Speaker can be challenged in the court of law.

DECISION OF THE COURT

The decision of the speaker to keep the caveat filed by the Mr. Swami prasad Maurya pending and recognizing the split of 37 MLA from the party, made Mr. swami Prasad Maurya to file a writ petition in the Allahabad High Court. According to the Chief justice of Allahabad High court the speaker was right in what he did but the other two judges were of another opinion. According to them the speaker should re consider his decision therefore the writ petition was dismissed and reverted back to the speaker. A special writ petition was filed by 37 MLA in objection of the decision given by the Allahabad High Court. Constitutional bench was called upon to make a decision on the following matter. The learned judges said that the Speaker had totally misdirected himself in purporting to answer the claim of the 37 M.L.As. that there has been a split in the party even while leaving open the question of disqualification raised before him by way of an application that was already pending before him. It goes against the very constitutional scheme of adjudication thought about, by the Tenth Schedule read with Articles 102 and 191of the Constitution. It also goes against the rules framed in that behalf and the procedure that he was expected to follow. It is therefore not possible to accept the argument on behalf of the 37 M.L.As. that the failure of the Speaker to decide the petition for disqualification at least simultaneously with the petition for recognition of a split filed by them, is a mere procedural irregularity. Even within the parameters of judicial review laid down in Kihoto Hollohan1 it was found that the decision of the Speaker impugned is liable to be set aside in exercise of the power of judicial review. Therefore it is clear that the Speaker, in the original order, left the question of disqualification undecided. Thereby he has failed to exercise the jurisdiction conferred on him by paragraph 6 of the Tenth Schedule. Such a failure to exercise jurisdiction cannot be held to be covered by the shield of paragraph 6 of the Schedule. He has entered no finding whether a split in the original political party was proved or not. it has to be held that the Speaker has committed an error that goes to the root of the matter or an error that is so fundamental, that even under a limited judicial review the order of the Speaker has to be interfered with. Again it is contended on behalf of the Bahujan Samaj Party that there is absolutely no material evidence to show that there was any split in the party. It is, therefore, contended that on the facts, it is crystal clear that the 13 members sought to be disqualified had defected and the defection is manifest by their meeting the Governor on 27.8.2003 requesting him to call upon the leader of the Samajwadi Party to form the Government. The 13 members of BSP who met the Governor on 27.8.2003, in the writ petition filed by Maurya, stand disqualified in terms of Article 191(2) of the Constitution read with paragraph 2 of the Tenth Schedule. The appeals filed by the 37 MLAs are dismissed and the appeal filed by the writ petitioner is allowed. The disqualified members will pay the costs of the writ petitioner, here and in the High Court.

AIR 1993 SC 412

RELATED ARTICLES
Art. 102, Art. 191 read along with schedule 10. 102. Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; (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 by reason only that he is a Minister either for the Union or for such State (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule. Art.191. Disqualifications for membership (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 the Government of India or the 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 (2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule

Tenth schedule 2.Disqualification on the ground of defection (1) Subject to the provision of a member of a house belonging to any political party shall be disqualified for being a member of the house(a) if he has voluntarily given up his membership of such political party; or ( b) if he votes or abstain from voting in such house contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior

permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. 6. Decision on questions as to disqualification on ground of defection. (1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final. (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212.

CONCLUSION
The Supreme Court was right in its decision because the very decision of the speaker was in contradiction with the laws laid down in Constitution of India. Moreover the privilege which gives a speaker the power to take decision according to his discretion and he is immune from any proceeding against him is very unconstitutional because everyone has the right to move to the court of law when he is not satisfied with the decision of the inferior court or something very unfair has happened to him. Therefore the privilege of the speaker which bars the court from having any jurisdiction regarding the matters related to the disqualification of the member of the house (Tenth schedule, Para 7) was declared invalid by the judges in the case Kihoto Hollohon v. Zachilhu2.

(1992) 1 SCC 309