Legislative Privileges: The Exercise of Indefinite Powers to Curtail The Voice of Democracy

The misuse of the Legislature’s right to punish for breach of privilege has a direct impact on democracy.

Legislative Privileges are the rights belonging to the Legislature for effective discharge of their legislative functions. Art.105 and Art.194 of the Indian Constitution lay down the powers, privileges and immunities of Members of Parliament (MPs) and State Assemblies respectively.

These immunities are modelled on the Privilege Pattern of the British Parliament. MPs are granted freedom of speech during any proceeding in the House. No MP would be liable to any court proceeding for anything said or done or any vote given in the House.

Beyond these provisions, the Constitution gives the Legislature the right to define by law their powers and privileges. Until such law is defined, Legislators would have the same privileges as were recognized by British Parliament. Further, the right to punish for breach of privilege or contempt of House is also given to the Legislature.

The Article focuses on the misuse of Legislature’s right to punish non-members for breach of privilege and its corresponding effect on Indian democracy. It begins with highlighting the limitations in Parliament’s power to punish. Further, it explores the reasons behind abuse of this power by parliamentarians.

The article also presents certain instances of arbitrary curtailment of citizen’s right to free speech in the name of contempt of House. Finally, it tries striking a balance between Parliament’s power to punish and citizen’s right to free speech.

Legislature's Power to Punish for Contempt: Absolute or Limited?

Immunizing people’s representatives from fear of criticism and penalisation for what they say or do in the House is essential to enable them to freely express themselves.

A House has the power to punish members or non-members for ‘breach of privilege’ or ‘contempt of House’ to safeguard its privileges and vindicate its dignity.

Privilege Committee of the House recommends the Speaker on the matters of breach of privilege. Non-members are punished by means of admonition, reprimand, imprisonment and its members by additional means of suspension and expulsion.

This power to punish is borrowed from the British Parliament but is not as broad and absolute as that available in the British System. Legislatures in England are both legislative and judicial bodies but India adheres to division of powers between Judiciary and Legislature.

In Kilbourn v. Thompson, the US Supreme Court clarified that the power to punish for contempt was the exercise of judicial power of British Parliament and not Legislative power.

Therefore, US Supreme Court refused the House of Representatives to derive support from English Cases for the punishing citizens for breach of privilege or contempt.

Applying a similar logic to the Indian scenario along with appreciating the division of powers between the Legislature and the Judiciary, it can be inferred that Art. 105 does not give the Legislature a general power to punish for its contempt.

Rather, the power is available to the extent it is absolutely essential to safeguard its authority and enforce discipline in the House. In spite of this limitation, this power is susceptible to be widely misused to suppress democratic voices in India.

Why is the "Power to punish for breach/contempt" vulnerable to misuse?

Legislature’s power to punish for its contempt can be grossly misused majorly because of two reasons: Privileges are not codified and are kept on a higher pedestal than Fundamental Right of Speech.

a. Threat to democracy because of Non Codification

Art.105(3) authorizes the Parliament to codify its privileges and until then rely on the privileges of British Parliament. Because of uncertainty in what constitutes legislative privileges, this provision was much debated in the Constituent Assembly.

However, Dr. Ambedkar defended it by saying that specific privileges are needed for Parliament to function effectively but before experiencing the working of Indian Parliament, they could not effectively codify its privileges. Hence, for that interval, reference was made to British Provisions. Our Parliament has not yet codified its privileges.

Therefore it can punish citizens for breach without even telling them what the privileges are. The National Commission to Review the Constitution (2003) noted that Privileges are intended to facilitate Parliamentarians to do their function of representing citizen’s voices and not curbing their right to speech.

Hence, it also recommended defining parliamentary privileges.

b. Threat of Parliamentary privileges being preferred over freedom of speech.

Though codification is necessary to prevent arbitrary punishment in the name of breach, yet mere codification will not grant protection to free speech. In M.S.M. Sharma, SC held that Art.105 and Art.194 being special provisions would trump over Art.19(1)(a). With the judgment of Raja Ram Pal, situation worsened.

SC held that there can be no judicial review on speaker’s decision of breach unless it is proved that the decision was an “exertion of arbitrary powers.” Hence it is quite clear that Art.19(1)(a) can be suppressed in the name of privileges with a very less probability of the parliamentary decision being judicially reviewed.

Because of these two problems mentioned above, Legislature has, innumerable times misused its ‘power to punish for contempt’.

Instances of misuse of Parliamentary Privilege to stifle democratic voices

The following instances show how those elected for voicing citizen’s concerns are using their privileges to stifle the country’s democratic voices.

a. In 2003, an arrest warrant was issued by the TN Assembly Speaker against journalists of The Hindu. Publication of an article using expressions “incensed”, “fumed”, “high pitched tone” for Jayalalitha’s conduct in House was considered breach of privilege.

The uncodified nature of Privileges gave the Legislature the power to interpret this act as breach. The Privilege Committee was dominated by the members of AIADMK (Jayalalitha’s party). The Committee referred to news reports and editorials to take the decision of awarding a Jail Term.

The journalists were not given the opportunity to be heard. Speaker accepted the proposal and issued the arrest warrant but was ultimately stayed by the Supreme Court.

b. A Karnataka tabloid in 2017 published defamatory articles against K.B. Koliwad (MLA). Based on Privilege Committee’s recommendations, the Legislative Assembly imposed a one-year sentence on the journalists.

The final decision was of the Speaker, Koliwad, who was the one who had lodged the complaint against the journalists. Karnataka High Court stepped in and stayed the jail sentence.

Amnesty International India noted that journalists have the freedom of writing critical articles and politicians must be tolerant towards such criticisms. Moreover, if an individual feels that his reputation has been severely affected, recourse to civil defamation should be the remedy.

c. In Maharashtra, Manjit Singh Sethi was sentenced to 90 days imprisonment or breach of privilege for using the sentence, “we would not allow minister’s wives to move around if dance bars were banned.” The High Court refused to interfere in the Legislative matter.

Ultimately, the Supreme Court issued a stay order. Similarly, in 2019, a parody video of Devendra Fadnavis delivering speech in the House was taken as insult to the House and breach of parliamentary privilege.

There are many more instances where Legislators went to the extent of imprisoning the citizens for statements which in no way obstructed the working of the Legislature or were positive criticisms. There needs to be a balance between Privileges of Parliament and Democratic Rights of Citizens.

Balancing Parliamentary Autonomy and the Right to Free Speech

The extent of abuse of parliamentary privileges has been seen in the above mentioned situations. It has been stated by scholars that unlike England, Indian parliaments are not courts and a conviction affecting rights of citizens should only be by a judicial process. It should be noted that even after being vested with judicial power, the British Parliament used penal provisions against a non-member last time in 1957.

Moreover, Parliamentary Privilege Committee of UK in 1999 distinguished between the Parliament disciplining its own members and the Parliament punishing non-members. It suggested that Parliament’s jurisdiction over contempt committed by non-members should be transferred to Judiciary. This way the Committee thought of balancing essential protection of parliament and freedom of individual.

However, precedents show that it resists from interfering much in the area of Parliamentary privileges. Therefore, the suggestion of the UK Committee cannot be maintained in India. But here, an analogy can be drawn to Supreme Court’s judicial activism while framing Vishakha Guidelines. Indian executives had signed CEDAW, but for years Parliament had not passed a law validating it.

The Supreme Court inferred that signing the convention showed that they intended to frame legislation on that line. Hence in the interest of general public, the Court passed certain guidelines and ultimately gave a deadline to the Legislature to pass a law based on those guidelines. Similarly, the intention of Constitution makers of codifying the privileges can be inferred from the constituent assembly debates.

Till now Parliament has not attempted to codify its privileges. The reasons may be that Parliament fears losing its supreme power when the codified law would come under judicial scrutiny.

This is affecting fundamental rights of citizens and it is not the way a democracy should function. Knowing the intention of the parliamentarians, the Supreme Court should give the legislature a deadline for codifying its privileges so that further abuse of privileges is prevented.

Finally, unless the privileges are codified and relation between privileges and fundamental rights is balanced, the present scenario should be improved. One possible solution could be making the Privilege Committee as impartial as possible.

Since it is this Committee which recommends whether there has been breach and what punishment can be accorded to the person, it should follow all procedures of natural justice.

Monopoly of one party over the committee should be prevented. Ten out of fifteen members of the Privilege Committee of 17th Lok Sabha were BJP Members. Such unbalanced representation increases the chances of biasness. Guidelines should be laid down for the speaker to give equal representation to all parties while nominating the members.

Moreover, Privilege Committee should be prevented from being the judge in its own cause. For instance, in M.S.M. Sharma, breach question arose because Bihar CM had been criticized and the Committee that was formed was headed by no one but the CM. Reference can be made to the UK Privilege Committee’s first report which also suggested proper guidelines for the unbiased working of the privileges committee.

Hence, an urgent attempt to strike a balance between securing Parliamentary Privileges along with protecting Citizen’s fundamental right to speech and expression can be made by the abovementioned ways.

(The author is an undergraduate student at the West Bengal National University of Juridical Sciences, Kolkata)

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