New Delhi: Parliament has no power and jurisdiction to terminate the membership of an elected member and thus expel him, argued senior counsel, Ram Jethmalani before a five-Judge Constitution Bench of the Supreme Court on Tuesday.

A Bench comprising Chief Justice Y.K. Sabharwal, Justice K.G. Balakrishnan, Justice C.K. Thakker, Justice R.V. Raveendran and Justice D.K. Jain is hearing a batch of petitions challenging the constitutional validity of the expulsion of 11MPs including 10 Lok Sabha members and one Rajya Sabha member for being allegedly involved in the `cash for query' scam.

Appearing for the petitioners, Raja Ram Pal and others, Mr. Jethmalani said that all powers regarding disqualification of a member were to be exercised under Article 103 of the Constitution by the President on the advice of the Election Commission. It could not be left to the decision of a single House.

He argued that disqualification must be created by law and not by the resolution of the House. He said: "This expulsion is different from an expulsion which does not entail the termination of membership, which expulsion may be only a measure of protecting the House against obstruction to its proceedings and discharge of its legislative functions as a result of misconduct of a Member committed in the House."

The former Union Law Minister argued that the freedom of speech of the MPs was wider than the right to freedom of speech and expression guaranteed under Article 19 of the Constitution.

He said that unlike certain restrictions under Article 19, the rights of a member of Parliament under Article 105 of the Constitution (powers, privileges etc. of the Houses of Parliament and of the Members and Committees thereof) could not be subjected to any such restriction.

Mr. Jethmalani said that the apex court had recognised this right in the JMM bribery case and laid down that under Article 105 no member could be punished for any speech made in the House or the casting of vote by a member. He said the apex court had let off the bribe-takers because of this privilege though the bribe amount in that case was much more than what the 11 MPs were alleged to have received for raising questions in Parliament.

He said that Article 105(3) did not confer on either House of Parliament all the privileges, which the British House of Commons exercised at the time of coming into force of the Constitution of India.

He said: "The Indian Legislatures have never in their history functioned as Courts. They are not superior courts and their non-speaking warrant of commitment is subject to judicial scrutiny."

He said that the right of a member who had been elected was to remain for the duration of the House. These rights were statutory and constitutional. Only statutory and constitutional provisions could bring about termination or extinction of these rights.

He said Article 102 provided for disqualification of members and it would be open to Parliament to provide a clause under this Article that a member would be disqualified if found guilty by the House to which he belonged of conduct unworthy of a member of Parliament.

The Representation of the People Act also provided for disqualification of members. By implication this could not be done by a resolution of one House, he said. Further arguments will continue on Wednesday.

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