Can the SC Decide if Mahua’s Expulsion Is a Case of 'Unethical’ Overreach?

Disqualification of parliamentarians is well codified in our Constitution, placing the gavel in Parliament's hands.

While the legitimacy of the proceedings of the Committee cannot be disproved, the mode of conduct of the investigation, the hasty discussion, and the pronouncement of the decision without due process of cross-questioning has deprived an entire constituency of their elected representative on grounds of undefined code of ethical misconduct.

(Photo: Kamran Akhtar/ The Quint)

The flurry of removal of members from the Houses of Parliament in recent times, be it suspensions or expulsions brings to light a rather obtrusive trend: the alleged delinquents are all members of the Opposition.

From Congress’ Rahul Gandhi to Aam Admi Party's (AAP) Raghav Chadha to most recently, Trinamool Congress’ Mahua Moitra. This calls for questioning the legitimacy of the strictures imposed on the conduct of our Parliamentarians and whether or not the tides turn in a particular direction.

Disqualification of parliamentarians is well codified in our Constitution, thus placing the gavel in the hands of the Parliament itself.

The Constitution espouses the Parliament being the judge and the jury in matters related to the conduct of its members and its proceedings for all intents and purposes but time and again, whenever matters related to the principles of natural justice come into play, judicial review has proven to be exigent.

Mahua Moitra’s expulsion too is a rife case study where all eyes will be on the Supreme Court to assess whether expulsion of an elected representative over a breach of code which doesn’t exist was a case of overreach. 

When Can a Parliamentarian Be Disqualified?

Mahua Moitra had been indicted for two misconducts by her fellow parliamentarian; one, for receiving monetary incentives from business tycoon, Darshan Hiranandani to raise questions against the latter’s competitor, Adani group, and second, for compromising national security by sharing her official login credentials with the office of Mr Hiranandani for typing in questions.

Now, clearly, both these acts are far from the ideal conduct of a parliamentarian if proven. However, "if proven” is the fulcrum where the validity of the decision sits. 

Articles 102 to 105 of the Indian Constitution lay down the grounds for the disqualification of a parliamentarian. However, it is important to first understand the two facets of disqualification – whether the member is rendered ineligible to be a parliamentarian at the time of election or becomes subsequently so. Mahua's case falls into the later ambit.

In such cases, the Constitution makes it clear that decisions regarding the disqualification solely relies on the Presiding Officer of the Legislative Body, ie, the Speaker in this case.

However, in the 1993 case of Kihoto Hollohan vs Zachillhu and Others, the SC ordained that decisions regarding disqualifications of parliamentarians are not immune to judicial review. 

Accordingly, such decisions are commonly challenged before the apex court as in the current case. Now coming to the grounds for disqualifications. According to the Constitution, a parliamentarian can be disqualified on the following grounds:

• If they hold an office of profit, ie, a government post that earns them monetary benefit

• If they are of unsound mind

• If they are discharged insolvent, ie, legally bankrupt

• If they are deemed disqualified as per the provisions of any existing law in India

• If they are guilty of defection, ie, changing their political parties after their election as per the provisions of the 10th Schedule of the Constitution.

Should Mahua Have Faced Expulsion in the Eyes of Law?

The most relevant legislation, in this case, is the People’s Representation Act of 1951. According to this law, a parliamentarian can be disqualified in the following five circumstances:

• Found guilty of corrupt practices during elections

• Convicted for a crime with a punishment of up to two years

• Failed to lodge an account for election expenses

• Being some sort of a stakeholder in any service provided to the Government

• Holding an office of profit directly or indirectly

• Been dismissed from any prior government service on charges of corruption

Clearly, Moitra is not guilty of any of these provisions. So where does her expulsion stem from?

It is rooted in Rules 222-228 of the Rules of Procedure and Conduct of Business of Lok Sabha which facilitate punishment for parliamentarians who are guilty of breaching their parliamentary privileges.

In 2015, Rules 316C-316E were incorporated into the Rules to also include "procedures for ethical complaints”. 

What Constitutes a Parliamentary Breach and Has Mahua Committed One?

The Constitution warrants that parliamentarians cannot be prosecuted for anything said or any vote during a session of parliament. Further, Article 122 also immunes parliamentary proceedings and orders of any standing committee from any judicial review.

But if any parliamentarian misuses such privileges to undermine the authority and dignity of the House, it will constitute a breach. In 2005, the parliament has interpreted the act of raising questions in the house in return for financial favours, also known as 'cash-for-query' – a serious breach.

This was when 11 MPs from the Lok Sabha were found guilty of the said charge and were subsequently expelled.

However, Mahua's case is different as her expulsion solely lies on the accusation of "unethical conduct" by the Ethics Committee which relies on the 2015 rules and not because a parliamentary breach has been established. In the absence of an investigation by the Privileges Committee, it cannot be confirmed if Mahua was indeed guilty for what she had been charged for.

On Ethics Committee's Investigation

As per the 2015 Rules, the Committee is to conduct an investigation to find whether a prima facie case exists or not. To that effect, the Committee in its current investigation was able to draw up a prima facie case based on two testimonies, one of a disgruntled former partner and the businessman who allegedly bribed Moitra for the queries.

The latter’s testimony is ridden with obvious contradictions wherein he alleges Moitra’s demands for "favours” but nowhere confirms any cash transactions. Moreover, he asserts that he felt compelled to furnish the questions due to their friendship. This makes the testimony rather equivocal.

On the second charge of unauthorised access, Moitra claims that while third-party logins did occur, none was unauthorised or unsupervised. In the context of a rampant practice of legislative brief compilations to research support by LAMP fellows, this is indeed a very common practice. The Committee has not been able to establish the violation herein.

Now, dubious as these acts may come across, the investigation procedure cannot be deemed watertight either. Despite over two decades of its constitution, there remains no codification of ethical practices and therefore, much remains at the discretion of the Committee members and political influence therein cannot be dismissed.

So the case is built around a mildly formalised "he said-she said” formula. In the absence of such codes, an open vilification of religious sentiments by one member can escape the wrath of the Committee while other cases won’t.

Moreover, the Committee did not permit Moitra to cross-examine her testifiers. Finally, it placed the report before the Speaker for a short while before it was taken up for debate in the Lok Sabha.

The timeline given for discussion on a 500-page report was palpably inefficient for a balanced debate. So procedural breaches cannot be overlooked.

Can the Supreme Court Step In?

Although the Constitution deems parliamentary proceedings outside the scope of judicial review, the SC through numerous judgments has clarified when and where it can and should step in. In the 2005 case of Raja Ram Pal vs Hon’ble Speaker, Lok Sabha and Others, the SC laid down the two distinctions regarding judicial review of the parliamentary proceedings:

Firstly, the Constitutional design makes the Parliament the final arbiter of all decisions regarding its proceedings so therefore, it can squarely decide on the expulsions or disqualifications of its members. On that count, Moitra’s expulsion order is legal.

However, in the 2005 case, the SC observed that while judicial review does not arise in the case of “procedural irregularity”, it is irrefutable in the case of “substantive illegality”. This is because the fundamental right of Moitra's personal liberty is at stake.

Accordingly, the decision of the Committee is subject to judicial review and once Moitra’s petition is taken up for hearing, the grounds of expulsion alongside the parameters of adjudication of offence may be looked into. 

SC Must Take 'Undefined Code of Conduct’ Factor Into Consideration

The SC has historically intervened in cases related to the disqualification of parliamentarians both in the 1993 Kihoto Hollohan case, the 2005 Raja Ram Pal case, and the 2017 Karnataka MLA case, so one can hope this to be assessed through the judicial lens as well. 

While the legitimacy of the proceedings of the Committee cannot be disproved, the mode of conduct of the investigation, the hasty discussion, and the pronouncement of the decision without due process of cross-questioning has deprived an entire constituency of their elected representative on grounds of undefined code of ethical misconduct.

While Moitra might seek re-election subsequently, one hopes that the apex court will expeditiously look into the merits of the case and remedy the current vacuum for the sake of the people of Krishnanagar – The TMC MP's constituency in West Bengal.

(Yashaswini Basu is a Bengaluru-based lawyer. This is an opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)