Privilege as to Longwinded Judgments

The Indian Supreme Court recently handed down its decision in Raja Ram Pal v. Union of India holding that parliamentary privileges were subject to judicial review. The case was concerned with the expulsion of MPs caught on tape accepting cash for raising questions in Parliament. They were expelled after Parliamentary Committees granted them a hearing and the power of expulsion was claimed as a privilege.

It has held that under our constitutional scheme the court has to decide the scope and extent of privileges, that the power to expel formed part of the House of Commons privileges at the commencement of the Constitution, that the power to expel did not stem from the fact that the House of Commons had the powers of a Court of Record (as colonial legislatures which were not formerly Courts of Record also enjoyed this power) or from the power to determine self composition and that the power of expulsion was duly exercised in the present case (on a substantive basis, as procedural irregularities would be protected by Art. 122).

Off the top of my head-

1. The power to expel, in some cases, could be treated as obtaining on the ground of necessity as an expression of the power to punish for contempt where the Court's jurisdiction were barred by Art. 122.

2. The Court referred to the Constitutional Assembly Debates relating to Art. 122 to hold it only barred review of procedural irregularities. The same debates could also be read as implying that the Framers considered that it was well established that no Court would attempt a substantive review and the prohibition on judicial review of procedural irregularities was inserted ex abundanti cautela (Francis Bennion has an interesting article on why reference to debates is inapposite at http://www.francisbennion.com/doc/fb/1993/003/hansard01.htm).

3. The judgement continues a proud legal tradition where prolixity and tediousness are considered the hallmarks of scholasticism and learnedness. Were 200+ (MS Word) pages really needed to say all that? The concurring judgment needlessly repeats entire paragraphs from the main judgment. Part of this can perhaps be attributed to the desire of an outgoing Chief Justice to leave his mark on the law through elaborate exposition.