Reaffirming proportionality in the Sunil Kumar case

On 25 February, a Division Bench of the Supreme Court comprising Justices Surya Kant and N.K. Singh reinstated Rastriya Janata Dal’s (RJD) Sunil Kumar Singh to the Bihar legislative council. In doing so, the Court held that voters cannot be deprived of their right to representation in the legislature in the garb of expulsion of a delinquent member. 

Singh was expelled from the House in July 2024 for alleged derogatory remarks against Chief Minister Nitish Kumar. He challenged his expulsion in Dr. Sunil Kumar Singh v Bihar Legislative Council (Through Secretary). The bench held that his expulsion was disproportionate to the act committed and that there is more at stake for a democracy if representative bodies punish their members disproportionately for their acts of misdemeanour within the House.

First and foremost, the bench found that Singh’s expulsion by the legislative council was not immune from judicial review under Article 212(1) of the Constitution. They reasoned that it was an authoritative determination and not a mere procedure of the House. 

The doctrine of proportionality

The judgement, authored by Justice Kant, emphasised that Singh’s expulsion was not proportionate to his actions. The judgement traced the evolution of the doctrine of proportionality in India and other countries and cited several instances where the Court upheld or dismissed punishments on the basis of proportionality in administrative, service and labour law. 

Justice Kant noted that in criminal law, too, the Court has acknowledged that the degree of punishment should be commensurate with the gravity of the offence. In Bacchan Singh v State of Punjab (1980), while dealing with the constitutionality of the death penalty, a Constitution Bench emphasised the need to factor in the mitigating and aggravating circumstances of the perpetrator before sentencing. In bail matters, courts seek to restrict their discretion by levying proportionality, discouraging stringent and disproportionate bail conditions. 

In Constitutional law, the proportionality test was first identified in Modern Dental College and Research Centre v State of M.P. (2016). Since then, it has been widely used to consider the vires of legislative as well as executive actions. 

The judgement in the present case also relied on Maneka Gandhi v Union of India (1978) to suggest that the Court used the doctrine implicitly in many cases during the early phase of its history. In that case, the Court found that excessive restrictions on liberty were disproportionate to the state’s purported objectives. 

More recently, in Association for Democratic Reforms v Union of India (2024), a Constitution Bench developed the doctrine of double proportionality to strike down the electoral bonds scheme. The bench reasoned that there was no hierarchy between the donor’s right to financial privacy and the voter’s right to political transparency. Further, the judges also held that the electoral bonds scheme’s lack of transparency failed to balance a donor’s right to privacy and the voter’s right to information

The Kant-led bench reiterated that the doctrine of proportionality is intertwined with the rule of law and the principles of natural justice. The judges stressed that it is implicit in almost every legal provision unless explicitly barred by the legislation itself. 

In Singh’s case, the bench noted that the expulsion of a member from the legislature beyond the necessary period suffered from the vices of irrationality and arbitrariness. It cautioned that it constituted a higher degree of deprivation and must only be sustained in exceptional circumstances. Expulsion, the bench elucidated, deprives the member from participating in the proceedings of the House and, therefore, undermines democratic values. 

Notably, the bench’s focus lay on the electorate. They stated that the voters of a constituency would remain unrepresented during the period of expulsion of the member from the legislature. This harmed representative democracy. 

A crucial factor in this form of governance, the bench highlighted, was ensuring that the people’s will was represented in the lawmaking process. A legislator, the bench said, was an agent of the electorate, not a free agent to follow their conviction. He/she is obligated to reflect the opinions and values of the people they represent. Even brief absences, the bench opined, could impede a legislator’s ability to contribute to critical legislative discussions and decisions. 

Determination of disproportionality

The bench acknowledged that determining what constitutes a disproportionate measure is a complex and context-dependent process. It involves a nuanced scrutiny of the facts and circumstances. Nonetheless, the judges suggested a list of non-exhaustive parameters that could indicate a disproportional action. These are: 

1.  Degree of obstruction caused by the member in the proceedings 
2. Whether the behaviour of the member has brought disrepute to the dignity of the entire House
3. Previous conduct of the erring member
4. Subsequent conduct of the member, especially if the Member expresses remorse and cooperates with the institutional scrutiny mechanism.
5.  Availability of lesser restrictive measures to discipline the delinquent member
6. Whether the crude expressions uttered are deliberate and motivated or a mere outcome of language largely influenced by the local dialect 
7. Is the measure adopted suitable for furthering the desired purpose? 
8. Does the measure balance the interests of society, particularly the electorates, with those of erring members?

Not condoning conduct

The bench found that Singh’s demeanour in the House was abhorrent and unbecoming of a member of the Legislature. They noted that his evasive and high-handed behaviour before the Ethics Committee was even more egregious. 

Yet, the judgement stated that the House, as custodian of constitutional values and democratic principles, ought to exercise magnanimity and rise above petty criticism and unwarranted remarks against its members. It stressed that it should exemplify the virtues of tolerance, restraint and institutional maturity and reinforce the dignity, impartiality and respectability of their office. Therefore, the bench concluded that expulsion as a punishment in this case was excessive and disproportionate to the nature of the offence Singh committed. 

Invoking its discretionary powers under Article 142, the Court deemed that the seven months of expulsion which Singh had completed to be sufficient punishment. Further, given that Singh’s term was expiring in 2026, the bench saw no reason to remand his case to the Ethics Committee for reconsideration. Therefore, they directed his reinstatement to the Bihar Legislative Council with immediate effect. The bench also quashed the Election Commission’s press note dated 30 December 2024, declaring a by-election for the seat held by Singh. 

The bench was sure to add that the relief granted to Singh should not be construed as condoning his conduct. Should he indulge in such misconduct after his reinstatement, the Election Commission or chairperson of the legislative council can take appropriate action per law.

The judgment is significant because the Court annulled the expulsion of an elected representative, keeping in mind that the electorate cannot be deprived of representation in a democracy. This is likely to influence the outcome of similar cases in the future.