Manish Tiwari writes in the Express about-
Why Mahua Moitra’s expulsion is against basic legal principles and the Constitution
Yet, Moitra's case is exactly like the 2005 expulsions which the Supreme Court upheld on the basis that expelling corrupt members is vital for the proper functioning of Parliament. It turns out that Tewari thinks Parliament should not make laws because its members, by and large, are mentally retarded. Nature has been unjust to them. Natural Justice forbids Parliament to function.
The expulsion, without giving an MP the right to face her accuser and without proof of guilt beyond reasonable doubt violates principles of natural justice.
She was given the opportunity to express contrition for wrongfully giving her login details to a businessman. She did not offer any evidence to contradict the claims made against her by her ex-boyfriend- most notably that he overheard her conversations with the businessman and thus came to know of her corrupt actions.
Natural justice requires fair treatment. This means that a person is treated as any other person in the same position would be treated. In this case, the precedent is the 2005 expulsions. The Legislature is entitled to follow its own rules and traditions unless the Bench has decided otherwise.
The expulsion of a Lok Sabha MP from Western Bengal raises fundamental questions about how such inquiries and the subsequent process need to play themselves out.
The questions are the same as those which were asked in 2005. The Supreme Court upheld the expulsions.
First and foremost, it was ironic and axiomatic
axiomatic means 'self-evident'. Tiwari however may have a different dictionary where the word means something else entirely.
that the report of the Committee of Ethics was tabled in the Lok Sabha at noon, and a motion for the expulsion of the said member was moved at 2 pm – barely giving any time to Members to be able to apply themselves to the content of the report of the Committee. The report along with its supporting documents and annexes is fairly voluminous.
But the relevant portions were short and had been previously uploaded.
Obviously, even if someone were to speed-read it after downloading it, it cannot be done in less than 90 minutes, the time available before the resolution was moved.
Some MPs had read it. It was easy enough to get the gist of the thing. The whole matter has been well publicized.
That is why one of the preliminary objections I had taken to the maintainability of the process was that more time should have been given to all the Members to study the report carefully and then present their views.
Tiwari is saying that Indian MPs are mentally retarded. They should not be allowed to pass any laws because they need a lot of time to read things and then present their views.
Coupled with this first issue are questions about the principles of natural justice, which cannot be given a pass under any circumstances.
If Tiwari is right, Parliament must be stripped of its power to make laws. It is against natural justice that a bunch of illiterate morons should get to decide how much of our income can be confiscated through taxes.
These are the founding and organising principles of every justice system in the world.
Not the Common Law which is based on 'artificial reason' not 'natural justice'.
What has been apparent from the newspaper reports of the proceedings is that the concerned MP was denied an opportunity to cross-examine the complainant.
She has no such right. An Ethics Committee is not a court of law.
She was also not allowed to cross-examine the other witnesses who had ostensibly, by way of affidavits, deposed against her.
Nor were they allowed to cross-examine her. Indeed, she walked out in a huff. Would a defendant in a court case be allowed to show such contempt of court?
The purpose of natural justice does not get served
in a restaurant which serves idli dosa. An Ethics Committee is not a court of law anymore than it is a South Indian restaurant.
until the procedure is kosher in its entirety,
So, this guy is thinking of a Jewish restaurant.
whereby people are given the right of substantive defence that is available to any accused person in even the most conservative legal systems in the world.
But, in a Jewish restaurant, though the food is kosher you have no right to cross-examine anybody. No wonder Hamas is so angry with lack of natural justice in Israeli eateries.
Then, there is a fundamental question about the very powers of the Ethics Committee. Rule 316 D says that the recommendations of the Ethics Committee would be laid on the floor of the House. Can recommendations be extrapolated to read that the Committee has the power to recommend punishment or the quantum of punishment which should be given in a particular case in the absence of a specific provision to that effect?
No extrapolation is required. A recommendation is a recommendation is a recommendation.
This is for the simple reason that in criminal law, there is a fundamental distinction between conviction and sentencing.
And in a Jewish restaurant there is a fundamental distinction between waiters and diners. Yet, no Jewish restaurant is obliged to sentence anybody to penal servitude even if they smuggle in a pork pie. This is the sort of grave violation of natural justice which keeps Manish up at nights.
While the Ethics Committee does have the power to hold a person guilty or innocent,
or worthy of expulsion
the quantum of punishment has to be decided by the House collectively sitting as a quasi-judicial body or as a jury.
The House voted on their recommendation to expel.
This then brings us to the third question: Can a whip be issued when the House is deliberating upon an impeachment motion or for that matter a report of the Privileges Committee, which has recommended action against a particular member or a report of the Committee of Ethics, which may involve harsh measures, including the expulsion of a member from a House?
Yes. Tiwari is thinking of the Presidential election where the whip can't be used.
And the answer is absolutely not. Because when the House sets to deliberate, either on an impeachment motion or on a report of the Committee of Privileges or Ethics, it sits as a quasi-judicial body or as a jury, whereby every member must independently apply himself or herself to the contents of the report and the entire body of common law, which is available as a guide for necessary backup, and then decide upon the guilt or otherwise, of the person who has been arraigned in these proceedings.
This is sheer nonsense. The House is welcome to follow its own traditions more particularly as they were upheld by the Bench in 2007. What this fellow doesn't seem to understand is that the House was not seeking to apply a criminal penalty. It was merely exercising its right to exclude a member whose behaviour was unethical. Suppose I am the treasurer of a Social Club. My fellow members decide to expel me because I stole money. They are not acting in a judicial role when they do so. Indeed, they may prefer not to press criminal charges.
However, if a whip is issued, under the Tenth Schedule,
i.e. the anti-defection bill. This is irrelevant here. Nobody crossed over to another party or was tempted to do so.
directing the Members to vote in a particular manner would vitiate the entire proceedings, because it would, in essence, be directing a judge or member of a jury to exercise that power in a particular manner.
Moreover, the proceedings may not be kosher because somebody smuggled in a pork pie. If you are pretending that the Legislature is actually a Court of Law, why not pretend it is also a Jewish restaurant?
This ignores basic jurisprudence and is impermissible under common law principles of natural justice.
It also ignores basic principles of Jewish cooking.
Then, of course, is the connected question of Article 105 of the Constitution of India, which deals with the powers and immunities available. Article 105 (2) says: “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.”
Tiwari forgets that Mahua wasn't in Parliament when she talked to her pal or when she took money from him. She has no immunity regarding this case.
The Consitution, then, is clear that the conduct of an MP cannot even be called into question in a court of law for anything which has been said or done by him or her during the proceedings of a House. Therefore, when the Constitution does not allow even the courts to call in question, the conduct of a member,
Nonsense! Legislators can be sent to jail for crimes just like anybody else.
thereby providing absolute immunity and absolute insulation, can the House, which is a creature of the Constitution, go beyond the remit of Article 105, especially Article 105 (2)?
Obviously. It has expelled corrupt people in the past and will do so in the future.
This cannot be overlooked by any committee, which is sitting in a quasi-judicial capacity or the House when it sits as a jury or in a quasi-judicial capacity to deliberate upon the reports of the Committee.
Also, if the House is actually a Jewish restaurant it must take stern action against people who try to smuggle in a pork pie.
The final point is about the interpretation of Article 105 (2) in the case of P V Narasimha Rao v State (1998),
Congress had bribed legislators to try to get a majority
which still holds the field. The judgment is under consideration by the apex court as we speak. However, the law as it stands today is that even if, hypothetically, the conduct of a Member within the House is vitiated by any illegal gratification, his or her conduct cannot be called into question in a court of law.
Mahua was expelled by the House, not by a court of law. She will be prosecuted if there is evidence that she took money from the businessman.
And, in this particular instance, the question remains: Was the guilt proven beyond reasonable doubt?
Yes. She admitted she shared her login details. That was enough to sink her because she had previously signed a piece of paper saying she wouldn't do so. It is a different matter that the Committee might have gone easy on her if she had shown contrition.
This is the jurisprudential principle — the guilt of an accused has to be proven beyond reasonable doubt before he or she is sentenced.
She wasn't sentenced. She was expelled.
So, without going into the merits of the report of the Ethics Committee, one way or the other, till the time the fundamental and substantive questions of law, which form the underlying basis of natural justice are not addressed holistically and completely, any and every proceeding will be open to a legal challenge.
But those legal challenges will be quashed if they are wholly without merit even if there is evidence that a pork pie was smuggled into the Lok Sabha because it is actually a Court of Law as well as a Kosher Jewish restaurant.
This happened in Raja Ram Pal vs Speaker, Lok Sabha & Ors’s case when the Lok Sabha and Rajya Sabha had decided to expel some of their members in what is called the “cash for questions” case.
What was the outcome? The Bench upheld the 2005 expulsions. It is likely they will follow this precedent in Mahua's case. What should worry her is the CBI investigation. She may have to do jail time