Analysis of the constitutional provision of Article 122 with regards to suspension of members of parliament

Introduction :

During the winter session of the parliament, more than 145 members of the parliament were suspended on account of opposition to the central government between December 14 and December 21, 2023.  This firstly causes a functional calamity in the parliament and also affects the roles and responsibilities of the MPs. The suspended members are barred from entering the chambers of parliament, including the lobby and gallery. They are also restricted from participating in sittings of Parliamentary Committees. Any notice or business listed under their name will not be under operational conditions during the suspension[1]. Some claim the suspension is a consequence of the Opposition’s demand for a statement in parliament by the government over the security breach[2].

In total, over 100 MPs from the Lok Sabha were suspended and over 46 from the Rajya Sabha. This marks as the highest number of suspensions in the parliament. Crucial bills have been passed at this time of suspension including the telecommunications bill and the criminal law reform bills[3].

The power to suspend :

It is within the authority of both Houses of Parliament to punish disobedient members in order to maintain their uninterrupted operations. This authority is granted in order to make sure the Houses run well and to punish those who cause chaos.

As a general rule, the Presiding officer, i.e the Speaker of both the houses should maintain peace and order so that the House can function smoothly. To ensure that, he/she has the right to withdraw a member from the house.

In the Lok Sabha, The Rules of Procedure and Conduct of Business in Lok Sabha provides for the provisions relating to suspension, withdrawal and reprimand from lok sabha due to unruly behaviour[4].

  • Rule 373, the speaker can direct a member to withdraw immediately from the house in case of any misconduct. The members who are ordered to withdraw remain absent for a day’s sitting.
  • Rule 374 provides for the speaker to call out the members who disregard the authority of the chair or abuses the rules. Such members will be suspended for a period not exceeding the session.
  • Rule 374A was added in 2001 which states that if any member through their actions or causes any gross violation will be automatically suspended by the speaker for a period of either 5 consecutive sittings or the remainder of the session, whichever is less.

According to the Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha)[5], the members of the Rajya Sabha will be suspended through the procedure mentioned in the following procedure :

  • Rule 255 states that the presiding officer can invoke the suspension of the MP. The chairman can suspend if in his opinion is behaving through misconduct or is causing disorder.
  • Rule 256 provides that the chairman can suspend a member from the service of the Council for a period not exceeding the remainder of the session.

Constitutional validity of suspension of MPs :

The true essence of Indian Democracy is the feature of separation of powers. This means, the executive, legislature and judiciary are its own bodies and either of them can interfere. The roles of these bodies cannot be interchanged or taken upon.

However, the constitution of India provides for the Judicial Review, which allows the judiciary to look into any reform and suggest the government. Similarly, the constitution also ensures that the powers of the bodies are not overlapped under Article 122.

It states that:

  1. Courts not to inquire into proceedings of Parliament

(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure

(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers  

The Supreme Court in various instances have upheld the validity of the proceedings of the parliament on the ground that it is permissible under Article 122. Article 122 set the foundation principle to not overlap the functions of the judiciary and the legislature.

Article 122 acts as an immunity to the Parliament and a restriction on the judiciary.

Judicial Pronouncements

In the case of Ramdas Athawale v Union of India[6], the hon’ble Supreme Court held that Under Article 122(2),  the decision of the Speaker in whom powers are vested to regulate the procedure and the conduct of business is final and binding on every Member of the House. The facts of the case was that the speaker adjourned the house and resumed the meeting after a while. The court found that the irregularity of proceedings was not established.

The court also found that, “The courts cannot go into the lawfulness of the proceedings of the Houses of Parliament. The Constitution aims at maintaining a fine balance between the legislature, executive and judiciary. The object of the constitutional scheme is to ensure that each of the constitutional organs function within their respective assigned sphere”. The same principle was followed in the case of Satish Chandra v Speaker, Lok Sabha[7] where the court held that it is well used in the language of Article 122 that the courts cannot interfere with the proceedings of the parliament.

In the Allahabad High Court, the question arose in the case of Naveen Gupta V Union of India[8] was whether the votes given by lok sabha members were valid or not. The court stated that, the ability to answer such question is beyond the scope and control of the judiciary and judicial review presented by the constitution.

The court opined that:

“ In our opinion, these are not matters for judicial review in view of the specific provision in Article 122(1) of the Constitution”

Article 212 of the Constitution provides for the same rules of court interference in the matters of state legislature. The Hon’ble supreme court in M. S. M. Sharma v. Dr. Shree Krishna Sinha[9] held that the validity of proceedings inside the state legislature on the grounds of not following proper procedure cannot be challenged in court. The court stated that, the state legislature has its special jurisdiction, and no court can interfere into that. Furthermore, in the case of Kihoto Holloahan, stated that the state legislature has the same immunity from mere irregularities of procedure.

 The Supreme Court in the landmark case of Raja Ram Pal V Hon’ble Speaker Lok Sabha and Ors[10] laid down the twin test to contemplate Article 122 of the Constitution. The test was that unless there is illegality in the proceedings, the court would not interfere. The court stated that irregularities in procedure and unconstitutionality of the proceedings would be accepted as the text only mention the illegality of the proceeding to be barred.

It stated that “ Any attempt to read a limitation into Article 122 so as to restrict the court’s jurisdiction to examination of the Parliament’s procedure in case of unconstitutionality, as opposed to illegality would amount to doing violence to the constitutional text. Applying the principle of “expressio unius est exclusio alterius” (whatever has not been included has by implication been excluded), it is plain and clear that prohibition against examination on the touchstone of “irregularity of procedure” does not make taboo judicial review on findings of illegality or unconstitutionality”

In another landmark case of Indira Nehru Gandhi v Raj Narain, it was held that the constitution ensures that there is adequate separation of powers as it is upto the legislature’s hand to decide their own proceedings. The ambit of the court would go to the extent of ensuring proper procedure has been established and if there are irregularities, such shouldn’t be illegal in nature.

In the recent case of Rojer Mathew (S) v. South Indian Bank Ltd[11], the court agreed with the previous interpretation of Article 122 as providing immunity to the legislature. It stated that India is governed by constitutional supremacy and judicial review is part of the basic structure of the constitution. It quoted :

“Any exclusion of judicial review has to be understood in the context in which it has been mandated under a specific provision of the constitution. Hence the provisions contained in article 122 which protect an alleged irregularity of procedure in the proceedings in Parliament being questioned cannot extend to a substantive illegality or a violation of a constitutional mandate.”

Conclusion :

In a country like India where democracy prevails from time to time, it is challenging to shun down the voices of MPs. However, the arbitrariness and the power vested upon the speaker of the houses creates a dynamic view for the definition of democracy. Although the aspect of suspension cannot be questioned by the judiciary, it is yet to be clarified whether the same is legal or not. As per the rules of the houses, the speaker has unprecedented power to suspend or withdraw any member he wishes to. The main conflict of interest among such thought is that the suspension can be purely based on the speaker’s opinion and thoughts. This on the outlook seems arbitrary and unreasonable. However, it is clear that the Court’s scope on challenging such is beyond the powers mentioned in the Constitution.

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Written by- Sanjana Ravichandran

[1] Sounak Mukhopadhyay, 141 Opposition Mps Suspended So Far : Are They Allowed To Enter Parliament? Check List Of Restriction, LIVEMINT (Dec 20, 2023) https://www.livemint.com/news/india/141-opposition-mps-suspended-so-far-are-they-allowed-to-enter-parliament-check-list-of-restrictions-11703057026922.html

[2] DHNS, Parliament, Democracy in suspension, DECCANHERALD (Dec 20,2023) https://www.deccanherald.com/opinion/editorial/parliament-democracy-in-suspension-2818157

[3] PRS Legislative Research, Winter Session Snapshot: Record Number of Lok Sabha MPs Suspended; No Bills Sent to Committees, THEWIRE (Dec 23, 2023) https://thewire.in/government/winter-session-snapshot-record-number-of-lok-sabha-mps-suspended-no-bills-sent-to-committees

[4] Rules of Procedure and Conduct of Business in Lok Sabha, 15th edition, https://eparlib.nic.in/bitstream/123456789/66/1/Rules_Procedure_LokSabha.pdf

[5] Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), 9th edition https://cms.rajyasabha.nic.in/UploadedFiles/LegislativeSection/LegislativeRules/English_2052022english_3092021rules_pro.pdf

[6] (2010) 4 SCC 1

[7] (2014) SCC 2 178

[8] (1999) ALR 36 328

[9] AIR 1960 SC 1186

[10] (2007) SCC 3 184

[11] 2019 SCC ONLINE SC 1456