PARLIAMENTARY PRIVILEGES IN INDIA: THE SURROUNDING PROBLEMS AND THE WAY FORWARD
Written by: Tejas Sateesha Hinder, Student, National Law Institute University, Bhopal
Each House of the Indian Parliament collectively and its members individually enjoy certain powers, privileges and immunities which are considered essential for them to discharge their functions and duties effectively without any hindrance. While the more important of these privileges, namely freedom of speech in Parliament and immunity of members from any proceedings in courts in respect of anything said or any vote given by them in Parliament, are specified in the Constitution, itself and some of them are specified in certain statutes and the Rules of Procedure and Conduct of Business in Lok Sabha, others are at present based on the precedents and conventions which have grown in this country, in terms of the provisions of the Constitution, until defined by Parliament by Law.
Incidents of Misuse of Parliamentary Privileges in India
1. June 21, 2017 when editors of two Kannada tabloids Ravi Belagere and Anil Raju of Hi Bangalore and Yelahanka Voice, were sentenced to a one-year prison term and a fine of Rs 10,000 by the Karnataka assembly headed by the Speaker K.B Koliwad, on a recommendation of the House Privileges Committee of Karnataka State Assembly for allegedly publishing defamatory articles against a few of its members.
2. A journalist's report on corruption in the secretariat of the Maharashtra legislature has been held to be a breach of privilege which lowers the prestige of the legislature. The episode is indicative of the rapidly deteriorating state of institutions of parliamentary democracy-legislatures, courts Of law, criminal investigation agencies, etc-in India.
The Blitz case (1951), the Searchlight case (1959), Keshav Singh case (1964), Eenadu Editor Ramoji Rao case (1984), K.P. Sunil & Ors case (1992), The Hindu case (2003) and the recent case of two senior scribes of Kannada tabloids (in which Karnataka House sentenced them to one year jail together with a fine of Rs.10,000 each for writing defamatory articles against legislators), are the direct result of the confusion born out of non-codification of legislative privileges
Points of Conflict
1. There is wide agreement on the nature and principles of privilege, but the questions relating to jurisdiction, which occasioned furious conflict in the past, are not fully resolved.
2. There have been two contrasting claims when it comes to the law concerning the parliamentary privileges. While the parliamentarians claimed that they were the exclusive judges of their privileges, the courts viewed the lex parliamenti as part of the law of the land and therefore within their judicial reach.
Conflict between Article 19(1)(A) and Power to Punish for Contempt
The fundamental right to freedom of speech and expression under Article 19(1)(a) has often come into conflict with the Parliament’s right to protect its privileges, particularly in relation to the freedom of the press. In India, the press is the most powerful organ that can influence and mobilize public opinion.
The specific issue regarding the conflict between freedom of the press under Article 19(1)(a) and the Speaker’s power to punish for the contempt came before the Supreme Court in M.S.M. Sharma v. Shri Krishna Sinha. It is argued that the Court’s decision in M.S.M. Sharma was per incuriam its decision in Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P and gravely undermined the sacrosanctity and inviolability of the fundamental rights.
I. First, these rights are part of the basic structure of the Indian constitution and thus cannot be trampled by a provision such as Article 105 or 194.
II. Second, these Article 105 and Article 194 carry the limitation “Subject to the provisions of this Constitution” which implies that their scope cannot extend beyond or prevail over the fundamental rights guaranteed under Part III.
Conflict between Contempt and Article 21
I. First, there is no precedent value of any of the decisions of the Speaker or the recommendations of the Committee on Parliamentary Privileges, which allows ample scope for arbitrariness and fluctuating standards in each case.
II. Second, the non-application of Article 21, as was done in A.M. Paulraj closes all doors for the test of fairness and reasonableness of penal sanction, which is a basic principle of criminal law.
III. Third, despite the fact that the standard of proof for criminal conviction is beyond reasonable doubt in the light of the fact that imprisonment places a complete restriction on one’s liberty, in the case of imprisonment by the House, this standard is not followed. In fact, persons are imprisoned even without the requirement of a mala fide intention or mens rea. This is demonstrated by the case of M.S.M. Sharma, wherein the Petitioner was punished despite the fact that he neither had knowledge that the said portion has been expunged nor a mala fide intent.
IV. Lastly, principles of natural justice require that one cannot be a judge in his own cause. However, the Speaker, who belongs to the House whose contempt has been committed and often continues to have political motivations, cannot meet this standard.
How is Freedom of Press affected
The following privileges of the parliament affect the freedom of press:
1. Right to exclude strangers
2. Right to prohibit the publication of its proceedings
3. Power to commit for contempt
A Strange Anomaly
Parliament by the 42nd Amendment substituted Article 105 (3) and 194 (3) with fresh clauses that retained the contents of the original provision and further added that henceforth the privileges of the parliament and legislatures would be such as the parliament and legislatures “themselves evolve from time to time”. Further, the 44th amendment, in a wave of undoing the wrongs wrought by the 42nd amendment, restored the old position by substituting the two articles by fresh ones with the contents of the old Articles 105 (3) and 194 (3) as they existed prior to the amendment.
From the Supreme Court’s judgment in Coelho it emerges that any amendment brought after 24 April 1973, purporting to circumscribe the Fundamental Rights contained in Article 14, 19 and 21 would be unconstitutional as being violative of the Basic Structure. It would follow that Article 105 (3) and 194 (3) introduced by the 42nd amendment would be unconstitutional to the extent of their conflict with Article 19(1)(a), and must yield to the latter; that it to say that those privileges of the Parliament/legislatures that conflict with Article 19(1)(a) are liable to be struck down or read down so as to make way for Article 19 (1) (a). The realization that Articles 105 (3) and 194(3) are creatures of a Constitutional amendment and not parts of the original constitution dramatically reverses the old picture of the conflict between privileges and Article 19(1)(a).
Kesavananda settle beyond doubt that a constitutional amendment is not law. Arts. 105(3) and 194(3) being constitutional amendments are thus not laws, and cannot impose reasonable restrictions, with the result that in conflict between privileges and Article 19(1)(a), the latter would get a free reign, which it would not in case of conflict between Article 19(1) (a) and a law codifying privileges. All said and done, the path for a dramatic reversal in the conflict between privileges and the freedom of press has been already laid down a long time ago. But no one has noticed. Not just yet.
It is time for us to seriously act on the suggestions of the National Commission to Review the Constitution (2003), which noted “Privileges of members are intended to facilitate them in doing their work to advance the interests of the people. They are not meant to be privileges against the people or against the freedom of the Press. The Commission recommends that the time has come to define and delimit privileges deemed to be necessary for the free and independent functioning of Parliament.” Even the recommendations of The Second Press Commission, the Press Council of India, the Indian Newspaper Society and the Editors’ Guild of India to codify the privileges has gone on deaf ears.
Article 105 clause (3) and Article 194 clause (4) are enabling provisions for defining the powers, privileges and immunities of each house of the legislature as well as its members and committees. The “other privileges” are not still defined by proper legislation in India but they are incorporated in the Rules of procedure and conduct of business in Lok Sabha and rules of procedure of Rajya Sabha. The uncertain and abstruse nature of parliamentary privileges in India is aptly described in 2002 by the National Commission to Review the Working of the Constitution. The commission recommends that the time has come to define and delimit privileges deemed necessary for the free and independent functioning of parliament. It should not be necessary to run to the position in the House of Commons every time a question arises as to what kind of legal protection or immunity a member has in relation to his work in the House. Thus it is concluded that there is an overdue period still waiting to define explicitly by legislation the exact nature, scope and range of “other privileges” of legislative bodies in India.
While there is a need to grant parliamentary privileges and secure their protection in order to enable the efficient and effective functioning of the Parliament and State Legislatures, there is also a need to ensure that they are not abused and used as a means to violate the citizens’ fundamental rights.
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