Legislative privileges: A case for codification

Legislative privileges: A case for codification

Legislative privileges: A case for codification

The privilege controversy is as old as the republic. What precisely are the privileges of the legislatures and their members? Whether, in cases of doubt or conflict between them and others, say the press, can courts come into the picture? Answers to these are not clear.

This is primarily because the framers of the constitution preferred not to define privileges but simply equated them with those of the House of Commons. The United Kingdom does not have a written constitution, and the powers of parliament and its members have evolved out of conventions and experience.

In fact, the wholesale acceptance of the unwritten privileges of the British House of Commons by the Indian Parliament and state legislatures, functioning under a written constitution which guarantees a set of fundamental rights like the freedom of speech and expression, has, of late, given rise to conflict between the legislature and the press or the judiciary for that matter.

Such cases include the Blitz case (1951), Searchlight (1959), Keshav Singh (1964), Eenadu editor Ramoji Rao (1984), K P Sunil and others (1992), The Hindu (2003) and the recent case of two journalists of Kannada tabloids in which the 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.

The judiciary too missed several opportunities to expound clearly the law on the subject. The majority judgement of the Supreme Court in Keshav Singh case was so vague on several points that it became practically difficult for the high courts to interpret it in a clear and precise term.

Soon after the verdict was delivered, conflicting versions of it began to surface which have not been resolved so far. It is still an open question before courts whether or not parliament and legislatures enjoy “unfettered powers” to commit people for breach of contempt. In this conflict of prestige and emotion between the legislature and the press or the judiciary, it is the Indian democracy that has suffered the most.

Our constitution clearly envisaged that the privileges of parliament and of the state legislatures would be defined by law and until so defined would be what they were in the case of House of Commons at the commencement of the constitution.

But neither parliament nor the state legislatures have defined them till today. It was probably feared that codification would expose the actions of legislatures to judicial interference to such an extent that they will not be able to discharge their functions with requisite dignity and grace.

However, the absence of such codification could not prevent judicial intervention. The Supreme Court in its advisory opinion in reference case (1965) clearly upheld the court’s competence to examine all privilege-related cases and to rectify mistakes resulting from mala fide, caprice and arbitrariness.

But notwithstanding the apex court’s verdict in Keshav Singh case, the scope of legislative privileges remains unlimited. Such an unfettered and undefined power is liable to be abused and it has actually been in the past not only against innocent citizens and others like newspersons but even against legislators themselves.

The plea that by attracting judicial intervention, codification will make matters worse is without any basis, for legislature’s prestige has not been impaired so far by judicial scrutiny of its various acts. Indeed, the image of parliament or legislature is tarnished by undue show of temper, abusive exchanges, physical scuffles, breaking of microphones etc - a regular feature in various assemblies. When a newspaper dares to report the same truthfully, it is sure to be hauled up for contempt.

It is high time to question the wisdom of granting to legislatures in India the same powers, privileges and immunities which the House of Commons in England had on January 26, 1950 - the day the Indian Constitution came into being.

Some of the Commons’ privileges were obsolete at that time and a few others relating to the press have been facing a squeeze under the pressure of democratic norms and traditions and tolerance of criticism that are prized high by the mother of parliaments.

Interestingly enough, the House of Commons has not exercised its power to sentence or reprimand a non-member since 1880, although it has contemplated using it on several occasions.

Ironically, legislative privileges in India are invoked almost routinely without regard to the fact that excessive use of these claims by our legislators is discrediting the immunities they claim for themselves.

They want the privileges and immunities of the House of Commons but take no notice of the tolerance that members of the UK Parliament extend to criticism of the press and citizens. In India, privileges have become the “Damocles sword” which hangs over those whose business it is to write on proceedings of the legislatures.

Defining privileges

The sooner such privileges are carefully and narrowly defined by parliament and state legislatures, as rightly recommended by the Constitution Review Commission long back, the better for polity.

The first and second Press Commissions have stressed the need to define them. The press has long been demanding a definition because as things are, newsmen do not know when exactly they may be hauled up for breach of privilege.

Over and above, the constitution itself very clearly contemplates that the powers, privileges and immunities of the legislatures shall be such as may be defined by legislations from time to time, and until so defined, shall be those of the House of Commons.

The term “until so defined” can never mean for all time. Where there is a written constitution, any legislature, including parliament, is sovereign only to the extent that the constitution says it is, and the ‘extent’ in any specific situation is subject to the judgement of court.

(The writer is an advocate at Delhi High Court and Supreme Court)