Privilege of legislators: Breach a grey area, harsh punishment rare

Though dozens of people are summoned every year before the privileges committees of Parliament and state legislatures on charges of breach of privilege of legislators, it is rare that punitive action like imprisonment has been ordered.

Written by Johnson T A | Published:June 29, 2017 1:41 am
karnataka assembly, press freedom, assembly privileges, parliamentary privileges The Karnataka assembly; its privileges committee meets once every two months, members who attend get extra allowances.

JOHNSON T A goes into the origins of the provisions for breach of privilege, instances when legislatures have used these special powers, and how the Karnataka assembly ordered the arrest of two journalists.

One of the most striking instances of the special privileges and powers of the legislature, its committees and members — enshrined under sections 105 and 194 of the Constitution — being used was in 2003, when the Tamil Nadu assembly Speaker directed the arrest of five journalists of The Hindu newspaper for publishing articles and an editorial that were critical of the AIADMK government, then led by J Jayalalithaa.

Though dozens of people are summoned every year before the privileges committees of Parliament and state legislatures on charges of breach of privilege of legislators, it is rare that punitive action like imprisonment has been ordered. With no codified laws for what constitutes a breach of privilege offence or prescriptions for punishment, this is largely a grey area in legal terms.

In Karnataka, over the years, prominent journalists such as Pothan Joseph, P Lankesh and T J S George have been summoned by privileges committees of the legislature over material deemed libel or offence against the dignity of legislators. These motions have mostly ended with journalists apologising or clearing their stand; the committees have dropped proceedings after a few hearings.

On June 21, the Karnataka assembly Speaker ordered the imprisonment of two journalists for a year based on recommendations in two separate reports of its privilege committees. The order for the arrest of Ravi Belagere of the tabloid Hi Bangalore and Anil Raj of Yelahanka Voice has drawn widespread criticism as an effort to throttle the media. Belagere’s arrest was ordered by Speaker K B Koliwad on the basis of a report by a privileges committee that he himself headed to adjudicate complaints filed by himself and a fellow Congress MLA, B M Nagaraj, over articles in Hi Bangalore in 2014-15.

What provisions of the Constitution protect the privileges of the legislature?

Article 105 pertains to the powers, privileges, etc, of Parliament, its members and committees while Article 194, which is identical to 105, protects the privileges and powers of the houses of legislature, their members and committees in the states. These sections protect the freedom of speech of parliamentarians and legislators, insulate them against litigation over matters that occur in these houses, and give powers to define the powers, privileges and immunities of a house, its members and committees

What are the origins of the privileges?

These are derived from the British House of Commons. The privileges are reported to have originated when a nascent British parliament was attempting to establish itself in the light of monarchy. “The legislatures in India claim to be the sole and exclusive judges of their privileges. This claim is based both on their status as coordinate organs of the state under the broad separation of powers among the executive, the legislature and the judiciary and their entitlement to all the privileges enjoyed by the British House of Commons on January 26, 1950. However, this claim is not supported by the constitutional scheme in India or by the situation in Britain in 1950,” a Supreme Court project on restatement of Indian law said in a publication on legislative privilege in India in 2011.

What constitutes a breach of privilege?

While the Constitution accords special privileges and powers to parliamentarians and legislators to maintain the dignity and authority of Parliament and the legislatures, these powers and privileges are not codified. There are no clearly laid out rules on what constitutes breach of privilege and what punishment it entails.

In Karnataka, privileges panels often refer to Practice and Procedure of Parliament by M N Kaul to define breach of privilege. According to the book, “It is a breach of privilege and contempt of the House to make speeches or to print or publish any libel reflecting on the character or proceedings of the house, its committees or any member of the house relating to his character or conduct as a member of Parliament.” The book states speeches and writing about the House or its committees or members can be punished as contempt on the principle that these actions “tend to obstruct the Houses in the performance of their functions by diminishing the respect due to them’”.

What is the criticism of this provision?

That it is sometimes used to counter media criticism of legislators and as a substitute for legal proceedings. “All persons have a right to trial by a competent, independent and impartial tribunal. Breach of privilege laws allow politicians to become judges in their own cause, raising concerns of conflict of interest and violating basic fair trial guarantees,” says Amnesty International India’s program director Asmita Basu.

What is the procedure in privilege cases?

All state legislatures have special privilege committees comprising 10 to 12 legislators as members and usually headed by a senior politician from the ruling party. The committee meets once every two months in Karnataka and members are given additional allowances to attend meetings. Whenever a legislator has a complaint he can send a letter to the committee. These matters can pertain to the sidelining of a legislator by government employees when it comes to projects and initiatives, impolite behaviour by government servants, not being invited to public events etc. The committee will begin proceedings as per the Criminal Procedure Code, says Karnataka assembly secretary S Murthy. The accused person is summoned and an inquiry is conducted by the committee and based on findings a recommendation is made to the legislature. When the matter is tabled in the legislature, a debate can be initiated on the report and based on the assertions of the House the Speaker can order the punishment as defined by the privileges committee or order otherwise.

What led to the Karnataka legislature’s order for the arrest of two journalists?

A privilege committee headed by Congress MLA K B Koliwad — acting on a complaint he himself filed, along with Congress MLA B M Nagaraj, in 2014-15 against Belagere, over an article published in the September 11, 2014, edition of Hi Bangalore — submitted a report, “Privilege Committee Report No 2 (2015-16)”, in 2016 recommending imprisonment of Belagere for a year and imposing a fine of Rs 10,000. The article was about supposed attempts made by Koliwad to get into the Congress ministry in Karnataka. The report said that Belagere had failed to appear before the committee despite multiple notices.

A second privilege committee headed by Congress MLA Kimmane Rathnakar produced a report, “Privilege Committee Report No 3 (2016-17)’’, on March 14, 2017, recommending punishment for Anil Raj, editor of Yelahanka Voice newspaper, on the basis of a complaint by a BJP MLA S R Vishwanath accusing the paper of consistently publishing defamatory articles and continuing to do so despite Anil Raj appearing before the privileges committee and apologising.

On June 21, Koliwad, currently the Karnataka assembly Speaker, ordered a one-year prison sentence and a fine of Rs 10,000 each against both journalists though the report against Belagere was not discussed in the house.

The move has attracted criticism and the Congress has attempted to distance itself from it. The leader of the BJP in the assembly, Jagadish Shettar, has said a thorough debate was not conducted on the issue and that the punishment was announced hurriedly by the Speaker.

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