The balance between fundamental rights and parliamentary privilege must be re-examined

Thomas Thorpe, Speaker of the House of Commons, was arrested for the non-payment of some small fine in 1453; parliamentarian Strode was arrested in 1512 for introducing Bills which the Crown did not like; Elliot, Hollis and Valentine were arrested in 1629 for what the Crown considered to be seditious speeches in the House. Parliamentary privileges originated during the long struggle for democracy and citizen’s rights in Britain, between a monarch and Parliament as kings used to get members who spoke or were likely to speak against the king arrested. Today, our legislators get citizens and journalists arrested.

In our parliamentary democracy, where Parliament enjoys almost supreme powers, legislators face no threat from government. In fact privileges have become a tool in the hands of the ruling party. The case of the Karnataka Assembly imposing fines and imprisonment on two journalists for writing something against the Speaker when he was a legislator and against another legislator has once again revived the debate about the need for codifying privileges and giving primacy to a citizen’s right to free speech over legislative privileges.

An evolution

Why shouldn’t our legislators’ freedom of speech, like the freedom of speech of citizens, be subject to the sovereignty and integrity of the nation, public order, friendly relations with foreign states, incitement of an offence or defamation as mentioned in Article 19(2)? The ‘sovereign people of India’ have a restricted right to free speech but ‘their servants or representatives’ have an absolute freedom of speech in the Houses. Even if one may reluctantly concede such a privilege to them in the interest of the smooth conduct of the House, why should there be the power to send people to jail for the breach of privileges? The Supreme Court’s decision in M.S.M. Sharma (1958), giving primacy to the privileges over free speech, was made in the first decade of the Republic during which the court had a lot of respect for legislators — most of them were freedom fighters. However, by 1967, the Supreme Court was convinced that Parliament should not have absolute powers.

Too wide a power

Our legislators have the power to be the sole judges to decide what their privileges are, what constitutes their breach, and what punishment is to be awarded in case of breach. Is this not too wide a power which clearly impinges on constitutionalism, i.e. the idea of limited powers? The fault lies with the framers of the Constitution, who, while drafting the lengthiest constitution of the world, have left the vital area of legislative privileges undefined.

Articles 105 and 194 clearly lay down that the “power, privileges and immunities of the legislature shall be as may from time to time be defined by the legislature, and until so defined, shall be those of the House of Commons”. The expression “until so defined” does not mean an absolute power not to define privileges at all. Legislators have been arguing that codification of privileges will harm the sovereignty of Parliament. Is Indian Parliament really sovereign? We want a uniform civil code but our parliamentarians do not want a codification of their privileges which will not require more than a couple of articles.

Moreover, the drafters of the Constitution also committed the mistake of putting Indian Parliament on a par with the British House of Commons. De Lolme’s statement about the supremacy of British Parliament, that “Parliament can do everything but make a man a woman and a woman a man”, is not applicable to India. British Parliament was also the highest court till 2009. Thus, Indian legislatures and British Parliament differ not merely as regards their general political status but also in the matter of legal powers. Unlike England, in India the Constitution is supreme, not Parliament. Today by sovereignty, we mean “popular sovereignty” and not “parliamentary sovereignty”. The opening words of the Constitution are “we the people” and not “we the legislators of India.”

A comparison

The codification of privileges is basically resisted because it would make the privileges subject to fundamental rights and hence to judicial scrutiny and evolution of new privileges would not be possible. In fact, the British House has itself broken from the past. Acts and utterances defamatory of Parliament or its members are no more treated as privilege questions. The U.S. House of Representatives has been working smoothly without any penal powers for well over two centuries. Australia too codified privileges in 1987.

It is strange that our legislators, to cover up corruption, not only took cover behind privileges but also pleaded in courts that they were not even ‘public servants’. In the Hardwari Lal and A.R. Antulay cases, the court did accept their contention and held that MLAs are not ‘public servants’. In the P.V. Narasimha Rao case, though they were held as public servants, the Supreme Court, in a controversial judgment, held that they can legally take bribes and vote as per the desire of the bribe-giver and hey will not be liable for corruption because, under legislative privileges, they cannot be questioned “in respect of any vote” given by them.

Our legislators also have protection from arrest in civil cases 40 days before the session, during the session and 40 days after the session. The exemption from arrest is also available for meetings. If we count the days of three parliamentary sessions and meetings then our MPs have protection from arrest for more than 365 days in a year. Is it not absurd?

The Constitution Review Commission headed by Justice M.N. Venkatachaliah had recommended that privileges should be defined and delimited for the free and independent functioning of the legislatures.

The restrictive interpretation of the Supreme Court holding freedom of speech subject to legislative privileges is not in tune with modern notions of human rights and there is an urgent need to have a fresh look at the vexed question of freedom of press vis-à-vis legislative privileges.

Faizan Mustafa is Vice-Chancellor, NALSAR University of Law, Hyderabad. The views expressed are personal