Judicial Review and Exclusive Cognisance

I. Introduction

Our founding fathers entrusted to Parliament the power to legislate, and thus determine policy for the realisation of the egalitarian goals as set out in the Constitution. In order to aid in the ‘glory and majesty of its task’ the Indian Parliament like its English counterpart is vested with “powers, privileges and immunities” . This ‘Privilege’ is generally used in England to describe certain powers of which the Houses of Parliament were possessed of, without which they could not discharge their functions. Thus it can be seen that included in the Constitutional framework both in England and India are an array of Privileges granted to Parliament which ensure its independent functioning.

The Privilege of ‘exclusive cognisance of Parliament within its four walls’ has been the focus of legal attention in India given two recent Supreme Court decisions, as well as in other commonwealth jurisdictions. These decisions have held the said privilege unconstitutional and therefore inapplicable to India. Parliament on the other hand asserts that the courts have absolutely no authority to review acts within the four walls of the house. Certain questions therefore arise; which of these views is more correct? And is there any approach which can synthesise both these perspectives and harmonise the existence of the privilege of exclusive cognisance within the Constitutional framework?

This paper will specifically provide answers to the above questions and in doing so postulate an alternate view, that in so far as no question of life and liberty is involved (emphasis applied), matters arising ‘within the four walls of Parliament’ should be exempt from Judicial Review.

II. The Doctrine of Exclusive Cognisance Within the Four Walls

Exclusive Cognisance and the Extent of Judicial Review in Britain

The privilege of exclusive cognisance is well established in England and asserts Parliament as the sole authority with competence to examine matters which fall within ‘its four walls’. This has been described by Erskine May as the ‘right to be the sole Judge of the lawfulness of their own proceedings, and to settle or depart from their own codes of procedure’. To this effect one might recall that Blackstone states,

“The whole of law and custom of Parliament has its origin from this one maxim, that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere.”

This logic has been the tenor of a consistent line of Judicial reasoning in a long list of English judicial decisions , including the famous case of Stockdale v. Hansard (Stockdale). The fact that the courts cannot lift the veil of privilege and review the actions of Parliament within the recesses of its four walls is therefore an established principle in England.

Courts in Britain however have the power to decide whether or not a matter is to be regarded as an internal matter over which Parliament had jurisdiction or one in which courts can exercise the power of review. Judicial control over the otherwise unbridled exemption from the law of the land given to Parliament is therefore maintained in a limited respect. Therefore, so long as the court is satisfied that what is before it is a matter of privilege, it would not investigate further, except to admit or deny the existence of such privilege.

The Boundaries of the Four Walls

There exists no exact certainty as to what constitutes an act within what is by turns called the ‘precincts of the house’, the ‘four walls of the house’, ‘internal affairs of Parliament’ or to quote the Bill of Rights, ‘proceedings in Parliament’ as the phrase ‘proceedings in Parliament’ has never been construed by courts of law so comprehensively as to bring out what they include and exclude’. However, internationally, between judicial decisions and Parliamentary resolutions a workable consensus seems to have emerged, enabling us to draw guidelines to assist in the determination of whether a matter falls within the four walls or not. A dual test can be thus conceived, firstly requiring the action to be performed in connection with the business of the House and further requiring the physical location of the act to have occurred within the ‘precincts of the House’.

1) Connection with the Business of the House

The requirement for connection with the business of the House is the first important test which includes within its fold the activities of both members and non Members. This is perhaps a consequence of the functional nature of the privilege of Exclusive cognisance.

In the United States of America, the established test requires an act falls ‘within the four walls’ to have a relation to the business of the House. The U.S Supreme Court liberally construed article 1, section 6 of the U.S Constitution to include ‘things generally done in a session of the House by one of its members in relation to business before it.’ This constitutes a liberal interpretation of what would otherwise have been restricted to only speech and debate.

On separate occasion, the Supreme Court of Massachusetts had to consider whether a defamatory statement made by one member to another in a private conversation in the house was protected by the Constitution. Parsons, C.J, denying such protection observed that such protection extended only to ‘voting, the making of written reports and to every other act resulting from the nature and in the execution of the office of a member.’

In England the position can be said to be similar. The progression from the strict rule of ‘Proceedings in Parliament’ to the broader terminology of ‘internal affairs of the House’ was confirmed in R. v. Sir R F Graham Campbell and others Ex parte Herbert (Herbert). In that case ‘summons’ were issued against fifteen members of the House of Commons (who acted as members of the kitchen committee of the House) as well as to the Manager, alleging that they had unlawfully served liquor in the refreshment room of the House of Commons. The court refused to take any action citing the undoubted privileges of Parliament.

Furthermore, this ‘Privilege’ is available both to members and non members of Parliament so long as their acts pertain to the business of the House. This is in order to protect other persons, who despite being non members participate in the business of the House. The Kings Bench in Herbert held the Manger of the House canteen immune from prosecution for illegally serving liquor, as he had been acting under the orders of the House of Commons acting through its kitchen committee. Similarly, communications from a stranger to a member of the House will be held to be privileged if they are so closely connected with Parliamentary business as would qualify as being protected by privilege . The ‘internal affairs’ of the House in England would therefore extend to include others apart from members, if acting in close connection with the business of the House.

This test can be found also in Civil law countries as is aptly summarised by Article 26 of the French Constitution which states,

� Aucun membre du Parlement ne peut �tre poursuivi, recherch�, arr�t�, d�tenu ou jug� a l’occasion des opinions ou votes �mis par lui dans l’exercice de ses fonctions �

2) The Precincts of the House

The second of the criteria for a matter to fall within the four walls and thus be protected by Privilege is that it must occur at places called the ‘precincts of the house’.” Following the Stockdale v. Hansard it was observed that ‘the use of the phrase “within its own walls” did not refer to the debating chamber alone, but to the whole of that part of the palace of Westminster which was at the disposal of the House of Commons for performing its functions and which technically is called its precincts.”

There is therefore a conjunctive requirement for both a connection with the business of the House as well as a physical restriction to the precincts of the Parliament Building. Whether a particular action is so connected with the business of the House so as to attract being protected by privilege can only however be discerned on a case by case basis.

III. The Position Of Exclusive Cognisance In Indian Jurisprudence

Constitutional Provisions which guarantee Parliamentary Privileges

The Constitution of India has in articles 105 and 194 set out the powers privileges and immunities of Parliament and the State Legislative Assemblies. Commenting on article 194, the Supreme Court in the Searchlight Case noted that clauses (1) (2) and (3) are mutually exclusive and thus the scope of review with regard each of them would be different. Article 105(1) for example was made subject to the other provisions of the Constitution by a caveat in its text. Sub clause (2) however had expressly not been made so subject. It was therefore held that the freedom of Speech under articles 105(2) or 194(2) was wholly separate from article 19 and 21 and thus, no action lies in a court in respect of subsection (2) of article 194.

Clause (3) is of slightly different import and stipulates that until Parliament provides by way of legislation, the privileges of Parliament continue to be the same as the House of Commons as they existed at the commencement of the Constitution. The doctrine of ‘exclusive cognisance’ would be applicable in India, if at all, by virtue of this clause as ‘exclusive cognisance’ has been accepted by Indian courts as constituting an undoubted privilege of the House of Commons .

Not all privileges of the House of Commons are applicable to the Indian Parliament however, as those contrary to the provisions of the Constitution are excluded. The question unanswered therefore is whether ‘exclusive cognisance’ is one of those Privileges of the Commons which can be said to be applicable in India?

The issue of the applicability of the doctrine of ‘exclusive cognisance’ to the Indian Parliament had arisen only indirectly before the case of the Sub Committee on Judicial Accountability . As such the law laid down in prior cases such as In re: Art 143, Constitution of India ( Keshav Singh) and P.V. Narishima Rao v. State (CBI/SPE) ( Narishima Rao ), ‘exclusive cognisance within the four walls’ seemed to have been accepted by the courts on the basis of sub clause (3) of article 105 . In Keshav Singh where powers of judicial review were upheld, Gagendragadkar,CJ added a caveat to his judgment stating that nothing in his judgment would apply ‘within the four walls of Parliament’.

The first case to directly on the point was Sub Committee on Judicial Accountability where the court held inapplicable the said test to the Constitutional scheme in India. The recent decision of the Supreme Court in Raja Ram Pal v. The Hon’ble speaker, Lok Sabha (Raja Ram Pal) has affirmatively quoted and upheld this earlier decision.

The author will attempt to analyse the reasoning of the court in dismissing the test of ‘within the four walls’ while making a case for as to why the doctrine of ‘exclusive cognisance’ is indeed applicable to India.

Raja Ram Pal and the Sub Committee on Judicial Accountability

The decisions in Raja Ram Pal and the Sub Committee on Judicial Accountability go hand in hand in as much as the Court in Raja Ram Pal relies solely on the precedent of the Sub Committee on Judicial Accountability in denying the extension of the doctrine of Exclusive cognisance to the Constitutional scheme in India.

The facts of Raja Ram Pal arose over nationally televised events. A T.V channel had conducted a sting operation on 12th December 2005 allegedly showing certain members of Parliament accepting bribes in order to the asking of questions in Parliament, an event that was quickly dubbed the ‘cash for queries’ scam. In response Parliament then expelled the said members on the ground that the conduct of the members was unethical and unbecoming of a Member of Parliament. The expelled MP’s challenged the constitutional validity of the expulsion before the Supreme Court.

The circumstances that led to the decision in the Sub Committee on Judicial Accountability arose earlier, in 1991. In February of that year, 108 members of the Lok Sabha petitioned the speaker for an address to the President for the removal of Justice Ramaswamy, pursuant to which the Speaker constituted a Committee under the section 3 of the Judges Inquiry Act 1991 to investigate grounds on which the removal was prayed for. The Ninth Lok Sabha was subsequently dissolved and it was contended that the motion had on that account lapsed. The courts therefore had to decide as to whether they could pronounce on whether the motion had lapsed or not, and as a corollary whether they had the authority to inquire into matters occurring within the four walls of Parliament.

The Court in Raja Ram Pal , following the Sub Committee ruling affirmed the ability of the courts to review matters which would otherwise fall within the exclusive cognisance of the House. The reasoning in rejecting the doctrine of exclusive cognisance owes its origin to the decision in the Sub Committee on Judicial Accountability , and it is this case that therefore forms basis of the analysis in to the applicability of the doctrine in India.

The Court in both the aforementioned judgments held the position in Bradlaugh inapplicable to India and thus subjected parliamentary activity ‘within the four walls’ to judicial review. It did so primarily on two grounds. Firstly, the court noted that in India, Parliamentary Sovereignty is not the norm as in England and understood this supremacy to be the basis of the doctrine of ‘exclusive cognisance’ . Noting the concepts of ‘limited government’ and the ‘Supremacy of the Constitution’, the court postulated that judicial review would be a natural corollary of such a higher law.

Secondly the court quoted two decisions namely Barton v. Taylor and Reediffusion (Hong Kong) Ltd. v. Attorney General of Hong Kong , which held the principles in Bradlaugh inapplicable to ‘colonial legislatures with a written Constitution’.

Thus, on these grounds, the court held the doctrine of exclusive cognisance inapplicable to India and subject proceedings in Parliament to judicial review on the grounds of arbitrariness and unconstitutionality.

A third oft repeated argument, though it does not find mention in the opinions of the Supreme Court in either of these cases is that the House of Commons derives its privilege from its judicial character as part of the ‘Undivided Houses of Parliament’ and the Indian Parliament having no such authority cannot be said to be possessed of such a privilege.

These three arguments constitute the legal backbone of the idea that privilege has no place in the Indian Constitution.

A critical analysis of the treatment of ‘Exclusive Cognisance’ by Indian Courts

Parliamentary Supremacy v. Constitutional Authority: Is there a difference between India and England?

In the Sub Committee Case , the first basis on which the court invalidated the doctrine of ‘exclusive cognisance’ was that in principle the doctrine of ‘Exclusive Cognisance’ rests on the presupposition of Parliamentary Sovereignty. The court therefore, in essence reasoned that in India, with the Constitution being supreme as opposed to Parliament, the doctrine could not be so extended. The author however, in light of an examination of doctrine in England arrives at the conclusion that it is not based on views of Parliamentary supremacy but on considerations of functional necessity and cannot on this basis be held inapplicable to India.

Ample evidence for above proposition can be found in the judgement of the Queens bench Division in Bradlaugh v. Gosset (Bradlaugh), which is considered the most accurate exposition of the doctrine of ‘exclusive cognisance’. The reason Bradlaugh retains such importance that it is reflective of a move from the traditional doctrine of Parliament as a court to the modern basis for Parliamentary privilege and negates any claim that the doctrine flows from the theory of Parliamentary Sovereignty.

The court in Bradlaugh in fact had a reasonable basis for ruling on the matter in that case, in as much as the resolution of the House of Commons was prima facie in contravention of an Act of Parliament and was therefore subject to judicial review. Stephen J in upholding the doctrine of ‘exclusive cognisance’ despite having a reasonable basis of review, shed light on the root of this doctrine by stating that if such review would lie “we should provoke a conflict between the House of Commons and this Court, which in itself would be a great evil…”. Thus despite being possessed of grounds for judicial review, the doctrine of ‘exclusive cognisance’ was respected. Similarly in the Indian context, the view of the author is that though grounds for review flow from the Constitution, judicial review would be ousted expressly by Article 105 by virtue of functional necessity and the concept of non interference in legislative matters so far as article 21 permits.

Thus the logic applied in Sub Committee of judicial Accountability that “the British Parliament with the Crown is supreme and its powers are unlimited and the courts have no power of judicial review of legislation” would not explain away the decision in Bradlaugh . The author therefore believes that this ground for invalidating the application of the doctrine to India may not be available to the courts given that Parliamentary sovereignty is not essential to the concept of the privilege of ‘exclusive cognisance’.

The applicability of the rule in Bradlaugh to a written Constitution

The basis and application of the doctrine of ‘exclusive cognisance’ to a written Constitution has been another source of demolishing the foundations of ‘exclusive cognisance’ in India. The Sub Committee court affirmatively quoted two decisions, namely Barton v. Taylor and Rediffusion (Hong Kong) v. Attorney General of Hong Kong (Rediffusion) where the rule of exclusive cognisance was purportedly not held to applicable to proceedings of colonial legislatures governed by a written Constitution. The author is of the opinion that both these case are inapplicable to the Indian context in as much as they apply solely to ‘colonial legislatures’. Furthermore the larger practice among states has been to give effect to the doctrine of exclusive cognisance, even when there is in existence a written Constitution.

The key to understanding the why the two aforementioned judgments may not be cited to apply to India, lies in the nature of a ‘colonial legislature’ in the context of which the cases were decided and its distinction from the Indian Parliament. Therefore in Rediffusion , the Privy Council in arriving at its decision placed great emphasis on the fact that the Legislative council of Hong Kong was neither representative (as the members were appointed by the crown) nor fully sovereign. The court noted that the members in a legislative assembly in a colony do not possess all the privileges as the Houses of Parliament in England and on that basis refused to extend the doctrine of exclusive cognisance within the four walls to Honk Kong . It is the view of the author that this case cannot be applied to determine the position of law in India in as much as it is only applicable to ‘colonial legislatures’ and cannot be extended to a sovereign country like India, with an elected Parliament.

The second case mentioned by the Supreme Court, Barton v. Taylor (Barton) was cited in Rediffusion , and it was noted that the court had not even considered the question of jurisdiction but considered it axiomatic that it had jurisdiction and granted relief. It is the opinion of the author that given the changes in Australian law and the fact that this case was decided in 1886, when Australia was still possessed of a ‘colonial legislature’, Barton cannot be cited as a meaningful precedent in India. Indeed it is submitted that on coming into force of the Australian Constitution, this decision has been rendered defunct by the declaration of Australia as a sovereign state. The subsequent decision The Queen v. Richards , where judicial review was held not to apply to matters of Privilege of the Australian Parliament would also serve to emphasis the point that the decision has been effectively overruled.

The current position in Australian law is therefore a strict adherence to the concept of Parliamentary privilege. The Australian Constitution contains provisions similar to Articles 105(3) and 194(3) of the Constitution of India providing that the privileges of the Australian house be the same as the House of Commons. The Courts in Australia have refused to review parliamentary action most notably in The Queen v. Richards and Privy Council did not grant leave of Appeal in the same case. It is important to note that in The Queen v. Richards the court dealt with the question of the applicability of the doctrine to the Australian Constitution, and as such it was not bound by the Privy Council decisions in earlier cases. Therefore the Australian court was not guided by any notions of parliamentary supremacy as it would have been had the question of applicability of the doctrine within the federal scheme of the Australian constitution not been in question before the court. It is thus a prime example of how the doctrine was made applicable to a country with a Constitutional scheme similar to that of India. Though this decision was of a wider scope it also includes judicial review ‘within the four walls’, and serves to undermine the authority of Barton v. Taylor as precedent.

The doctrine of exclusive cognisance within the four walls has also been held applicable to a written Constitution in several other countries. Canadian practice in this regard is also important, given that it also follows the Westminster form of Government. It has been suggested, on the weight of judicial authority that breaches ‘in the face of the Assembly’ (an expression which includes ‘within the walls of Parliament’) would be outside the jurisdiction of the courts unless some palpable abuse of powers was established. Breaches outside the legislature would be more closely scrutinized. Canadian practice firmly accepts the privileges of Parliament as it is viewed as a constitutional power (as is the case in India) and does not subject them to judicial review. The Court however does have a role to play in as much as it may properly question as to whether a privilege claim exists given ‘the Charter’s enunciation of values’ (scheme of the charter). Canada therefore employs a stricter version of the ‘exclusive cognisance within the four walls’ doctrine than is being suggest by the author.

Additionally in a number of other countries, including Papua New Guinea , Singapore and the Cook Islands , despite there being a written Constitution the views in Bradlaugh v. Gosset have still been held to be applicable owing to the source of such privilege being the Constitution of the respective countries.

Thus far from being inapplicable to a written Constitution, it appears that in most Commonwealth countries with a Constitutional mandate securing the privileges of Parliament, the doctrine of ‘exclusive cognisance within the four walls’ has been accepted as a necessary adjunct to the separation of powers.

‘Exclusive Cognisance’ in English Law: A Relic Judicial Power or a Functional Necessity?

A common argument is the issue of the House of Commons possessing the privilege of ‘exclusive cognisance’ as a matter of its judicial powers inherited from the undivided Court of Parliament. It is therefore argued that the Indian Parliament having no such judicial character could not claim such privilege. This argument is effectively met by reference to Bradlaugh which dismissed any claims of the doctrine of ‘exclusive cognisance’ being derived from a judicial inheritance of the House of Commons by saying,

“A resolution of the House of Commons does not by itself alter the law, nor was it held that “the House of Commons is a Court of Justice; but it was stated that the effect of its privilege to regulate its own internal concerns practically invests the House of Commons with judicial character”(emphasis supplied) .

If therefore a determination was made which was not in accordance with law, it would resemble the case of an error by a judge whose decision is not subject to appeal. The basis of privilege in modern constitutional theory thus is not based upon the view of the Commons as a court but rather on the basis of necessity.

Thus the basis of the doctrine of Exclusive cognisance is in the necessity of Parliament to conduct its own affairs. It is by virtue of the doctrine of ‘exclusive cognisance’ that Parliament is invested with judicial Power and not vice versa, that is to say doctrine itself owes its existence to (alleged) inherited judicial powers of the House of Commons.

IV. EXCLUSIVE COGNISANCE AND FUNDAMENTAL FREEDOMS: BALANCING THE INDIAN CONSTITUTION

The Proposed Extent of Implementation of the Doctrine

The question of Parliament’s powers of ‘exclusive cognisance within the four walls’ must however, also be adapted to the Constitutional scheme in which it is sought to be implemented. It is thus the opinion of the author that though the doctrine of ‘exclusive cognisance’ must be extended to India, it must also be modified to co exist with the provisions of Article 21.

The Constitution has provided for judicial review as a natural incident of the system of checks and balances as enshrined under our Constitution. Indeed the decision in the Sub Committee of Judicial Accountability case focussed on judicial review and the difference between the powers of review of the English and Indian courts.

In addressing the position of the relationship between Part III of the Constitution and the privilege of ‘exclusive cognisance’, the author would like to add his own caveat to the application of this doctrine. In order to the securing of the Right to Life guaranteed by Article 21 and keeping in mind the checks and balances of a federal and supreme Constitution, it is the opinion of the author that ‘exclusive cognisance of the House within the four walls’ should only be applicable where there is no question of Life or Liberty involved. The doctrine of ‘exclusive cognisance’ would not, it is submitted, be good law, if it were not made subject to article 21 of the Constitution.

It is thus the position that the doctrine of ‘exclusive cognisance’, though applicable to India is subject to the provisions of article 21.

The Effect of Subjecting ‘Exclusive Cognisance Within the Four Walls’ Solely to Article 21

It is well accepted that when Searchlight was decided the view on Fundamental rights and article 21 was a restricted view as existing in A.K.Gopalan v. State of Madras . Any review on the basis of article 21 would therefore have to include the expanded scope of article 21, which has been established to be of wide amplitude. Some may argue that prima facie therefore the exception may devour the rule so as to speak. Closer examination however would prove the failings of such a misconception.

A large amount of cases where ‘exclusive cognisance’ is to apply would be excluded from the scrutiny of article 21 and thus fall within the ‘exclusive cognisance of Parliament’. Matters falling ‘within the four walls of the House’ can be categorised under two heads on the basis of their consequences. Firstly, that of orders of the House in a disciplinary capacity, which have the effects of committal, loss of livelihood etc. and secondly in other matters concerning functioning of the House.

Of the varied privileges therefore, those that will attract article 21 will be any order for committal issued by the House or affecting any other right to liberty. An order of imprisonment even against a member, officer or stranger ‘within the walls of the House’ would therefore be subject to judicial scrutiny.

On the other hand an order of suspension, dismissal or reprimand would not attract any scrutiny. For example, the facts of Raja Ram Pal where the members were dismissed would not attract Article 21 as none of their rights had been infringed. However, if the members were committed by the house for their misdemeanour a writ of habeas corpus would lie.

There are other areas of the business of the House where article 21 would not apply. For example, if the courts were required to decide on a motion pending before the House, no question of violations of article 21 would prima facie be involved.

Thus the author proposes that whether an action by the House violates article 21 can be actively determined by the consequences flowing from the orders of the House (emphasis supplied).

A prima facie test would therefore be applicable to determine whether the action of the House has violated personal rights under Article 21. If the burden is met by the plaintiff judicial review would lie in to matters even within the ‘four walls of the house’.

In this context, privileges enjoyed by Parliament do not give the apex legislative body carte blanche to commit any act within its walls. Indeed each individual privilege largely relates to those required Parliamentary spheres. As noted by an English judge,

‘The basis of privilege in modern constitutional theory thus is not based upon the view of the Commons as a court but rather on the basis of necessity.’

As demonstrated above it is only a few of these numerous possibilities that would perhaps pose as violations of Article 21, and it is in these cases that the courts can inquire into violation of rights, even within the ‘four walls of Parliament’.

The judiciary being the guardian of citizens fundamental rights and the watchdog of the Constitution would fulfil its role admirable and most effectively if it restricted the power of review to violations of article 21. Indeed, the scope of article 21 being vast will provide adequate protection from abuse of authority in other fields. Here we may take up the illustration of R. v. Sir R F Graham Campbell and others Ex parte Herbert where the manager of the canteen was serving liquor on the direction of the kitchen committee in contravention of law. An action was brought against him in a police court. In this case, if Parliament dismissed the manager, judicial review would lie, for such dismissal would prima facie contravene the right to livelihood under article 21.

Thus the right to life only partially affects the doctrine of ‘within the four walls’, enough to check abuse. It is therefore submitted that the author feels that this scheme is more in consonance with our Constitution than a plain incorporation or rejection of the doctrine of ‘exclusive cognisance’.

V. CONCLUSION

While introducing the provisions with regard Privileges of the Houses of Parliament, Dr. Ambedkar remarked that,

‘[U]nder the House of Commons’ powers and privileges, it is open to Parliament to convict any citizen for contempt of Parliament and when such privilege is exercised the jurisdiction of the court is ousted’ (emphasis supplied)

The courts have however ruled to the contrary that even matters falling within the ‘four walls of the House’ are amenable to judicial review on the twin tests of illegality and unconstitutionality. These represent two extreme views on point of the doctrine of ‘exclusive cognisance’ which bring about a conflict between article 105 and the powers of judicial review.

In answering the questions posed in the introduction and striving for the harmonisation of two important facets of Constitutional law, an alternative view is possible, which