Kunwar Abhay and Another vs Miss. Mayawati, Member of Rajya Sabha and Others

Ravi S. Dhavan, J.—If this writ petition is considered on the merits of it, then, logically, a rule or a writ, order or direction would issue to a member of Parliament and, in effect, the Rajya Sabha of Parliament. The Court is considering this writ petition as on the date it was brought: such is also the law. Rameshwar and Others Vs. Jot Ram and Another, . The matter has been urged strenuously by learned Counsel for the Petitioner. When this matter was brought into the Court, the petition was also sought to be amended by inserting certain submissions into the text of the petition as also the prayer and the relief clause. The record which is before the Court as of now, the prayer and the relief clause reads as under:

Prayer

It is, therefore, most respectfully prayed that this Hon''ble Court may graciously be pleased to:

A To issue a writ order or direction in the nature of certiorari thereby quashing the entire statement made by Respondent No. 1 on or about 10.3.94 against the "Father of Nation" Mahatma Gandhi and published in different newspapers and magazines of the country, which is also shown in Annexure No. I and II to mis petition.

Al. To issue order or direction declaring Respondent No. 1 Ms. Mayawati as mad (lunatic) and debarring her membership of Rajya Sabha on the basis of statement made by her; and as contained in Annexure Nos. 1 and 2 of the writ petition.

B. To issue a writ order or direction in the nature of mandamus be issued thereby commanding over Respondent No. 5, to initiate the proceedings of expulsion and accusation to the guilt of Ms. Mayawati Respondent No. 1.

C. To issue a writ order or direction in the nature of mandamus be issued thereby commanding over Respondent No. 5 and directing them to bring legislation with regard to "the Father of Nation" in the same spirit as "the national flag" and "the national Anthem" and the offence be made cognizable, non-bailable and not compoundable.

D. Any other suitable writ order or direction be also issued in view of the facts and circumstances of this case.

E. Costs of the petition be awarded.

Plainly, what the Petitioner desires is that a direction be issued to a Member of Parliament, a Member of Rajya Sabha, with a declaration that such Member be declared to be suffering from mental infirmity and further, the Court should by a writ declare that this Member of Parliament is as a consequence of this alleged insanity, debarred from her seat at the Rajya Sabha.

The question before the Court is not so much as/or the High Court to issue a writ on the petition but whether such a petition ought to be brought before the High Court and whether under the circumstances, a prerogative writ of the nature sought by the Petitioner can be issued under the Constitution? The concern of the Court is that if it were to issue a writ or a rule. As the Petitioner so seeks and desires, what is there to stop those where the writ will reach from issuing a like writ to the High Court? The Parliament Is also vested with the power of Court.

Counsel for the Petitioner also sought an adjournment to submit further on this petition in detail. The court has denied the adjournment by plainly telling counsel that this is a matter which ought to see result and should not remain lingering on the records of the High Court.

This is also not a matter either on facts or otherwise of considering even remotely on a writ of quo warranto that a public office has been usurped either by violating the rule of law or the law of the Constitution.

This Court is not going to discuss the merits of submissions already on record of the writ petition. But for the brevity of it so that the context of this writ petition remains in sight, the averments, as made in the writ petition are summarised:

Petitioners Kunwar Abhay and another state that they have filed this writ petition in the public interest because they and the entire country are "grief-striken" at abuses against the Father of the Nation, Mahatma Gandhi, said to have been uttered by the Respondent, Ms. Mayawati, at a press briefing in March 1994, which were widely reported. The Petitioners point out that the Father of the Nation is remembered and respected both in India and abroad, and his memory deserves as much respect as the national flag or national anthem. By her statements, the Petitioners aver, can be the words of "a mad man only" and after the date when they were uttered (March 9, 1994) an abnormal state has arisen in the country because of the remarks.

Petitioners also state that the Union of India and State Governments are "abetters" in this as they remained idle and took no action against Ms. Mayawati, and this recourse to the relevant criminal law provisions cannot be sufficient to meet the case and the power of the Court under Article 226 of the Constitution of India must be called into play.

The Constitution of India has set a discipline to take care of situations that the matters which are the business of and internal to the Legislature and of the High Court, the spheres of the two are not meant to eclipse one another. This Court is finally of the opinion that it cannot issue a rule or a writ against a Member of Parliament or to the Parliament or to its Speaker either to declare such a Member as suffering from a mental infirmity nor to unseat the Member of Parliament on this account, as these aspects by long standing conventions are matters exclusively within the domain of Parliament. Then, by conventions and by proprieties of the Constitution, the information that a Member of Parliament may suffer from mental infirmity is to be intimated to the Parliament through the Speaker by the authority which detains or declares the member of Parliament as mentally infirm. Members of Parliament may also inform the Speaker, who shall thereafter make his inquiries and verifications. (Parliamentary Practice, Erskine May, Nineteenth Edition, Butterworths, pages 38, 39).

In the circumstances, this Court expresses nothing on merits and truly, if the Petitioners really were concerned with what may have been expressed by the then Member of Parliament concerned, on the nature of the submissions which amounts to offences under the Indian Penal Code, then, they should have had the courage to file a first information report or a complaint, as the case may be, and it is not their case that those whose job it is to enquire, are not proceeding with it.

This is not an election petition nor the forum for it to consider that a Member of Parliament ought to be unseated for misdemeanour in the conduct and the process of election. Under the Constitution, it would be inappropriate for the High Court to issue a writ to a Member of Parliament to debar his or her from the membership of the House on the allegations made. If the law of the land has been violated or breached or an offence of law is the allegation, then, the law provides sufficiently to report the crime alleged as a first information to the police or by a complaint to the concerned Magistrate. This the Petitioner has not done. There is no occasion for the High Court to take cognizance of allegations as made on record of this writ petition and issue a prerogative writ and that also to an institution like the Parliament, to which such a writ may be misplaced. The Petitioners accept that they have not taken the initiative to take the ordinary course to register their allegations by a report or a complaint.

This discussion, thus, cannot be at the Bar of this Court, that it may in the House of Parliament is another matter and for the Parliament. In this regard, though not entirely on the issue before this Court, on the separation on what may be the privileges of the Houses of Parliament and the restraint by Courts from interfering is a very academic and instructive case of the King v. Sir H.F. Graham-Campbell and Ors. ex-parte Herbert 1935 (1) RB 394,

Further, the Court is fortified by a decision in which one of us is a member. In that decision, the High Court has already held, in effect, that it is not for the High Court to interfere with what otherwise is the subject-matter of enquiry and satisfaction of the Parliament. The Court has further held that the matter of holding the membership of the House is not a business of the Court to intrude into the discretion which the Constitution requires to be exercised by the House itself and if a citizen desires to say anything on a resignation of the membership of a Parliament, then, the High Court is not the forum for it. Panna Lal Agyan and Others Vs. Hon''ble Speaker, Sri Balram Jakgad and Others, .

Also, on whatever the Member of Parliament, may have said and has been made a cause for a motion from the High Court, has in fact been the subject-matter of discussions and proceedings in both Houses, before Parliament and the State Legislature alike. This is accepted by the Petitioners, Press reports from discussions and proceedings before the two Houses of Parliament in New Delhi and the two Houses of the Legislatures in Lucknow have been placed for the purposes of record for the perusal of the High Court. All these are matters which have been discussed and said in the Houses of Parliament and Legislature. May be that it saw no result. The validity of the proceedings and the result which it did not see, the Constitution of India prohibits the questioning of it outside, the courts especially. These are the Powers, Privileges and Immunities of Parliament and its members and courts are not to enquire into proceedings of Parliament, (sic) Likewise, for the State Legislatures. An inbuilt corollary to protect the functions of a Judge of the High Court or the Supreme Court, in the discharge of his duties and the restriction on discussion in the Legislature or Parliament, thus, is also provided in the Constitution.

This is an ill-advised petition and the sooner it is laid to rest the best it would be.

The petition is, thus, consigned to record as dismissed.