India, as a democratic republic, embodies the principles of liberty, equality, and justice, enshrined in its Constitution. At the heart of this constitutional framework lie Fundamental Rights, which guarantee certain freedoms and protections to its citizens. Concurrently, Parliamentary Privileges grant legislators the necessary autonomy and authority to full-fill their legislative responsibilities effectively. However, the interplay between Fundamental Rights and Parliamentary Privileges often presents challenges and complexities in the Indian political and legal landscape. This article aims to explore the intricate relationship between these two facets, examining their evolution, conflicts, and the role of the judiciary in ensuring a harmonious coexistence.
FUNDAMENTAL RIGHTS
Fundamental Rights, enshrined in Part III of the Indian Constitution, are the bedrock of individual liberties in India. These rights include the Right to Equality, Right to Freedom of Speech and Expression, Right to Life and Personal Liberty, Right to Constitutional Remedies, and others. They serve as a bulwark against state encroachment, safeguarding citizens’ dignity and autonomy. The judiciary, particularly the Supreme Court, plays a pivotal role in interpreting and upholding these rights, ensuring their enforcement and protection.
PARLIAMENTARY PREVILAGES
Parliamentary Privileges are a set of immunities, powers, and rights enjoyed by members of the Parliament and state legislatures to facilitate the smooth functioning of legislative bodies. These privileges include freedom of speech within the Parliament, the right to regulate internal proceedings, immunity from legal proceedings for statements made within the Parliament, and the right to punish for contempt of the House. Parliamentary Privileges are essential for fostering open and uninhibited debates, enabling legislators to discharge their duties without fear of external interference or coercion.
Sir Thomas Erskine May defined parliamentary privileges as: “The sum of the peculiar rights enjoyed by each House collectively is a constituent part of the High Court of Parliament and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.”
Therefore, the reason for granting privileges was to guarantee that the operations of the House would not be hindered by fear or favouritism, allowing it to function freely.
The ultimate authority in a democracy lies in the people’s expression of their will, as made evident by their election of representatives. Therefore, with the welfare of democracy as their priority, the authors of the Indian Constitution incorporated the idea of parliamentary privileges. In India, individuals who possess the right to speak and participate in the proceedings of the House or its committees are also granted these privileges under Article 105(4).
PRIVILAGES GRANTED INDIVIDUALLY AND COLLECTIVELY: ARTICLE 105 AND ARTICLE 194
Article 105 of the Indian Constitution defines parliamentary privileges enjoyed by the Parliament collectively and its members individually.
Article 194 outlines the same privileges for the state legislature as Article 105. There are two privileges with specific names that are defined:
- The freedom of speech and
- The freedom of publication of proceedings.
The House may define other privileges from time to time, and until so defined, shall be those that were prior to the commencement of the 44th Amendment in 1978.
PARLIAMENTARY PRIVILAGES: EVOLUTION AND STATUS QUO
In spite of the altered terminology, the additional advantages remain the same as those that were previously experienced by the British House of Commons when the Constitution began. However, the Indian legislature only has access to the privileges that the House of Commons enjoys as a legislative body, and not the privileges it has as a judiciary. At this point, no special rights or advantages have been established. Therefore, the authority and benefits of the Parliament remain the same as those of the “British House of Commons when the Constitution began.” The Supreme Court has consistently looked to British case examples to settle issues regarding a violation of the Indian Parliament’s privileges.
Article 105 explicitly addresses the right to freedom of speech and the right to freely publish proceedings. These advantages consist of being protected from legal actions for remarks made or votes cast or publications issued by a member while conducting official duties for the House.
Additional benefits consist of immunity from being apprehended, the authority to disallow unfamiliar individuals from participating in the meeting, the power to forbid the dissemination of discussions, the ability to govern its makeup in terms of open seats, qualifications, and contested elections, as well as the ability to remove members.
The Parliament also possesses the authority to control its own internal operations, make decisions on issues surrounding the House, and remove members if required.
In order to protect its interests, the Parliament also has the authority to penalize its members and outsiders for violating its privileges or showing disrespect towards the institution.
THE USE AND ABUSE OF PARLIAMENTARY PRIVILAGES
RK Karanjia, the editor of Blitz, received a notice from the Lok Sabha in August 1961. This text describes an article called “The Kripaloony Impeachment” that discussed JB Kripalani’s disapproval of the Defence Minister at that time. There were claims that the article defamed a respected member of the legislative body and spoke about him disrespectfully and offensively. In order to calm down the situation, the magazine’s New Delhi correspondent was obligated to offer an apology to the House.
In the year 1984, the Legislative Council of Andhra Pradesh requested Ramoji Rao, who was the editor of Eenadu, to attend. Mr Rao filed a case in the Supreme Court, and the court issued a ruling to prevent his arrest from taking place. The Chairman of the Council ignored the order and instructed the police commissioner to bring Mr. Rao before the Council. The judge issued an additional order preventing the commissioner from apprehending Mr. Rao. To the astonishment of many, the chairman of the council insisted that the commissioner ignore this directive as well. Before the situation could deteriorate further, NT Rama Rao, who was the Chief Minister, requested the Governor to adjourn the Council.
The editor of Ananda Vikatan, S Balasubramaniam, was unjustly imprisoned by the speaker of the Tamil Nadu assembly without giving him a chance to present his side.
In each of the aforementioned instances, we witnessed a clear clash between the rights outlined in the Constitution and special rights granted. Below, we will now discuss other instances where the relationship between these two entities was examined from various viewpoints.
- GK Reddy vs Nafeesul Hassan Case (1954 SC 636)
Homi Dinshaw Mistri, deputy editor of the magazine Blitz, was detained in Bombay due to accusations of violating privilege. He was then transported to Lucknow. He was arrested for creating something in front of the Uttar Pradesh Legislative Assembly speaker. A petition for his release was submitted under Article 32, invoking the Habeas Corpus principle. There were claims that Mr Mistri was not taken before a judge within a day of being arrested. The Attorney General acknowledged in court that the accusations have strong basis. According to Article 22(2) of the Constitution, this was a mandatory requirement. Therefore, the court granted the Habeas Corpus petition and ordered for the release of Mr. Mistri.
In this particular situation, the benefits were eclipsed by the essential entitlement ensured by Article 22(2). However, the court in The Searchlight Case did not consider this as a previous ruling that could be used as a guiding principle.
- MSM Sharma vs SK Sinha (1960 AIR 1186): The Searchlight Case
In Bennett Coleman & Co. & Ors vs Union of India (AIR 1973 SC 106), the Supreme Court declared that:
The freedom of the media is crucial for democracy as it enables public scrutiny, which is vital for the functioning of democratic institutions.
This is the standard practice; the right to freedom of the press has consistently been interpreted as part of the right to freedom of speech and expression as stated in Article 19(2).
Nevertheless, similar to any significant convention, there are cases where this rule does not apply, as evidenced by the Supreme Court’s contrasting decision in 1960.
In the case of MSM Sharma vs Sri Krishna Sinha, also referred to as the Searchlight Case, the court had to consider whether the freedom of the press held more importance than parliamentary privileges as stated in Article 194.
In this instance, a representative of the Legislative Assembly in Bihar voiced disapproval towards the current Chief Minister. There were some claims made that implied the Chief Minister had chosen ministers and conducted inappropriate transfers of civil servants based on the request of a former industry minister. People inquired about why the ex-minister was chosen to be the chairperson of the Bihar State Khadi Board, solely for the purpose of providing him a place to stay in the capital city of the state. The speaker made the decision to remove a majority of the mentions of the ex-minister’s name from the official records of the meeting.
However, against the rules, The Search Light, a newspaper, revealed the details of the speech and disclosed the identity of the former minister. The assembly sent a notification to its editor and publisher, accusing them of breaking the rules, because they reported on remarks that had been deleted from the record.
The editor made the decision to seek the intervention of the Supreme Court using its power to issue writs. He contended that taking action against him for the violation of legislative privileges would infringe upon his entitlement to ‘freedom of speech and expression’ (as stated in Article 19(1)(a)) and his ‘personal liberty’ (as mentioned in Article 21).
The court formulated two legal inquiries, which were:
- Whether the legislature could use its privileges to restrict reportage of openly conducted proceedings; and
- Whether these privileges would prevail over the freedom of speech and expression of the petitioner?
The court noticed that the House of Commons held the right to forbid the dissemination of truthful accounts of the House’s activities. The majority decided that privileges take precedence over the Fundamental Right to freedom of speech and expression as stated in Article 19(1)(a). As a result, the court determined that Article 19(1)(a) must give way to Article 194(3) in order to find a resolution between the two.
Chief Justice CR Das further elucidated the reasons behind the legislature’s reluctance towards the formalization of privileges. He believed that if a “law” establishes certain privileges, it should be subject to Fundamental Rights just like any other legislation.
Justice Subba Rao expressed a differing opinion. He commented that the House of Commons did not have the authority to prevent truthful accounts of the House’s activities. He expressed the belief that the court’s logic would excessively limit the valued privilege of freedom of speech and expression.
The Searchlight Case initiated a problematic situation that was certain to lead to a conflict between the judicial and executive branches regarding parliamentary privileges.
This is the case of Keshav Singh, referenced as Special Reference No 1 of 1964, reported in AIR 1965 SC 745.
This ruling can be interpreted as a situation in which the court acknowledged the necessity to regain control over the consequences that it had initiated in the Searchlight Case.
On March 14, 1964, the UP Assembly started taking action against Keshav Singh for distributing a brochure that criticized a current legislator. Afterward, the individual speaking issued a warrant for the arrest. This occurred as a result of his actions when he received the notification and a letter that was deemed disrespectful was sent to the speaker. Keshav Singh was taken into custody. He filed a request with the Lucknow branch of the Allahabad High Court seeking a writ of habeas corpus.
The following day, a two-judge panel from the court ordered for his release.
The assembly responded strongly, issuing a new warning of violating privileges that included both judges, Keshav Singh, and even his lawyer. They were instructed to appear before the Assembly while being held in custody. Keshav Singh’s recent detention was authorized following an initial period of detention.
The parties affected by the situation hurried to the Allahabad High Court, where a complete panel consisting of 28 judges passed a temporary order stopping the assembly. Due to the unfortunate circumstances, the President decided to request guidance from the Supreme Court through Article 143(1).
The legal concerns centred on whether certain rights can be claimed for actions conducted outside of the House, and if these rights can be subject to examination by the judiciary. HM Seervai contended that the assembly possessed extensive authority to establish its privileges through resolutions, whereas MC Setalvad, representing the judges, maintained that these actions of the legislatures can be examined by the courts.
A unique panel of judges, consisting of seven members, unanimously ruled (with one dissenting opinion) that court authorities, rather than legislative bodies, have the final authority in interpreting the provisions of Article 194(3).
The following observations were made by the court:
• Parliamentary privileges do not apply to the writ jurisdiction of the High Courts.
• The privilege-free right to approach the Supreme Court through Article 32 is an unrestricted and unconditional entitlement.
• When the legislature exercises its privileges, personal liberty is protected under Article 21. If an individual claims that their right to life and personal liberty has been violated, the court has a responsibility to assess the validity of the claim. The court will then carefully examine whether the liberty was taken in accordance with the legally established procedure.
The court further noted that it is not establishing a universal rule that Fundamental Rights will consistently take precedence over privileges. In paragraph 127, it stated, “We do not plan to have a comprehensive debate about whether all the Fundamental Rights are relevant in situations where legislative powers and privileges can be used against individual citizens of this country. We are approaching this issue based on the understanding that Article 19(1)(a) does not apply and Article 21 does.”
The case involving The Hindu and Murasoli newspaper In a separate incident, the Tamil Nadu Legislative Assembly issued a resolution in 2003 instructing the apprehension and incarceration of six staff members of The Hindu and its affiliated newspaper Murasoli.
They received instructions to be detained for a period of fifteen days. This was written as a reply to an article published in the newspaper called “Increasing Intolerance”. It also banned reporters from these newspapers from covering the activities of the legislature for a period of 15 days.
This editorial supported earlier reports that had criticized Chief Minister Ms. J. Jayalalithaa for using bold and aggressive language in her speeches. The committee in charge of determining privileges suggested taking disciplinary actions, leading to an official investigation. The Supreme Court put a stop to this unjust campaign by issuing an order to suspend it.
CONCLUSION
Indian lawmakers rely on the use of previous decisions made by British legislators to support their argument for starting privilege proceedings. Nevertheless, in an article published in The Times on 9 December 1975, Bernard Levin observed the peculiar enthusiasm of the House of Commons for behaving foolishly as a group. Surprisingly, the House of Commons did not take any action to initiate privilege proceedings. It is difficult to envision the consequences that Levin would have faced in India, including potential reprimand and arrest for showing disrespect towards the House.
This is why, in 1954, the initial Press Commission recommended the formalization of privileges in response to the government’s excessive sensitivity to fair criticism. We recognize the importance of establishing clear parliamentary privileges in order to prevent them from being exploited. The main intention behind granting these privileges was to ensure that the desires and opinions of the people would be represented in the House. Using something that was given to provide protection should not be used aggressively to silence sincere disagreement with the government. The principle of harmonious construction further emphasizes that the rights of the people should take precedence over the privileges of the elected representatives.
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