Last week the Karnataka Assembly found two journalists, Ravi Belagere and Anil Raju, guilty of publishing defamatory articles about the Speaker and other MLAs. They have each been sentenced to one year’s imprisonment; if the arrest goes ahead, the two will follow in Indira Gandhi’s footsteps, who in 1979 was expelled from Parliament and imprisoned for breach of privilege, under a warrant signed by the Speaker, K S Hegde.
The purportedly defamatory articles are no longer in the public domain and therefore, inaccessible. We don’t seek to comment on the merits of the order, but with the problem of legislative privileges in general.
The Constitution recognises the privileges of Parliament and state legislatures under Articles 105 and 194, respectively. Certain privileges, like the freedom of speech within the legislature, are codified under these provisions. On the others, the Constitution says that legislatures enjoy the same privileges as those of the House of Commons. But even in the Constituent Assembly, many were perturbed by the reference to the British Parliament, while others felt the provisions were vaguely worded.
The Articles were passed on the assurance that they were a temporary measure. But barely a month before the Constitution was adopted, Constituent Assembly president Rajendra Prasad warned: “So, it is only a temporary affair. Of course, the Parliament may never legislate on that point and it is therefore for the members to be vigilant.”
The words turned out to be prophetic. Nearly 68 years later, neither Parliament nor legislatures have passed laws codifying privilege. Given the vague wording of the Constitutional provisions, the exact number of privileges is uncertain, and according to some jurists, even unlimited. The key difference lies in the usage of such powers. For instance, the last person to be imprisoned by the British Parliament was Charles Bradlaugh in 1880. In India however, this power has been frequently resorted to.
Difficulties arise when legislatures act against outsiders, such as the Press. This is correctly seen as an encroachment on press freedom – a fundamental right guaranteed under Article 19 (1) (a). Over the years, questions relating to the interplay of legislative privilege and the Right to Freedom of Speech and Expression have often found their way to Constitutional courts.
Amongst the earliest such instances was the ‘Searchlight’ case (I) (M.S.M. Sharma vs. S.K. Sinha, AIR 1959 S.C. 395), which concerned the publication of expunged portions of proceedings of the Bihar Assembly. On being sentenced to imprisonment, the editor moved the Supreme Court, arguing that the publication was protected under Article 19(1)(a). Rejecting his stand, the Court held that the power of judicial review, applicable to ordinary law, could not be invoked to challenge an order made under Article 194, a Constitutional provision.
A few years later, the question of legislative privilege would create a Constitutional crisis. A certain Keshav Singh was sentenced to a week’s imprisonment for breach of privilege of the UP legislative assembly. Subsequently, a petition filed by him was listed before the Lucknow bench of the Allahabad High Court. When the case was called, the Government advocate was not present. The petition was admitted and as the sentence was only one week, Singh was directed to be released on bail during the pendency of the case.
The Assembly took umbrage to this. The order of stay passed by the two judges was regarded as a breach of their privilege. Soon, the Assembly ordered its Marshal to arrest the judges and produce them before the Bar of the house. Subsequently, a full court (of 28 judges from the Lucknow and the Allahabad High Court) stayed the order of arrest. The matter went up to the President and Supreme Court before it was defused.
In Keshav Singh’s case, the Supreme Court clarified that Article 21 (Right to Life and Personal Liberty) would be applicable even when Legislatures exercised their powers in respect of their privilege. However, the position regarding Freedom of Speech being subservient to legislative privilege was confirmed.
In Raja Ram Pal v Hon’ble Speaker, Lok Sabha and Ors., (2007) 3 SCC 184, another Constitution Bench revisited the conflict. The Court held that Fundamental Rights under Articles 20 and 21 could prevail over privileges under Articles 105 and 194. However, no mention was made of rights under Article 19 (1) (a) relating to Freedom of Speech.
Recently, a bench of two judges in Algaapuram R Mohanraj v Tamil Nadu Legislative Assembly, WP (C) 455 of 2015 examined the issue. It went into a detailed analysis of the violations of the Right to Speech, Right to Expression, Right to Life and Right to Equality. Though the first three were rejected, the contention regarding violation of the Right to Equality was upheld.
Over the years, the claim to unbridled powers enjoyed by the legislatures under Articles 105 and 194 have been considerably tempered. While Constitutional courts have tried to stay away from interfering with the internal functioning of Parliament and state legislatures, inevitably they tend to get sucked in when the fundamental rights of citizens appear to be egregiously breached.
The Supreme Court’s jurisprudence in this regard however remains somewhat unclear. There seems to be no rationale for the Supreme Court holding that certain fundamental rights override legislative privilege, while others are subservient to it.
Crucially, despite the Court showing an increased willingness to test orders passed in favour of legislative privilege, the law laid down in the ‘Searchlight’ case still holds the field. The scales thus remain tilted in favour of privileges and against the right to speech.
Without the judiciary to protect them, the fights between India’s legislatures and her press have been unequal. Despite suggestions that the concept of parliamentary privilege be done away with altogether, no such proposals have seriously been considered by Parliament.
The Press Commission has often taken up the issue of codification of privileges. Even the National Commission to Review the Working of the Constitution in its report in 2002, suggested that privileges be “defined and delimited.” But legislatures have been reluctant, as once privileges are codified they will be subject to judicial scrutiny.
The power to imprison was once described in England as “the keystone of Parliamentary Privilege”. It has not been used in over a hundred years. Its use in India, a country that prides itself on its Charter of Rights codified in the Constitution, is an anomaly. But legislatures are unlikely to take steps to do away with privilege or to codify them.
That’s why it is important for Courts to subject invocation of parliamentary privilege to stricter judicial scrutiny in order to curb potential misuse.
Sanjay R Hegde is a senior advocate in the Supreme Court and tweets @sanjayuvacha. Pranjal Kishore is a lawyer who practices in the Supreme Court and tweets @parahoot
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