Codify privilege to prevent abuse
Freedom of speech has been under attack in Maharashtra for several years now and the threat hasn’t always been from the fringe elements. Very often, the threat has been from the Maharashtra Vidhan Sabha or State Legislature – the ultimate institution in a democracy since it consists of legislators who are elected to power by the people themselves. The Vidhan Sabha’s preferred mode of attacking free speech is by the issuance of a breach of privilege notice to all and sundry on the most frivolous of grounds. The latest recipient of such a notice is Shobhaa De, the famous Mumbai based columnist and socialite for her tweets poking fun at the Maharashtra Chief Minister Fadnavis and the various bans that he has imposed on his state.
In her first tweet on April 7, 2015 she had stated “Devendra 'Diktatwala' Fadnavis is at it again!!! From beef to movies. This is not the Maharashtra we all love! Nako!Nako! Yeh sab roko!”. In her second tweet, posted the next minute she stated, “I love Marathi movies. Let me decide when and where to watch them, Devendra Fadnavis. This is nothing but Dadagiri”. These tweets led to a legislator from the Shiv Sena moving a breach of privilege motion against Shobhaa De for “insulting Chief Minister Devendra Fadnavis and the sentiments of the Marathi speaking people.” In an ideal world, the Speaker of the Assembly should have dismissed the notice but not in Maharashtra, where the right to be offended is fiercely guarded by the State, even if it involves jailing teenage girls for their posts on Facebook, or issuing a criminal notice to Alia Bhatt for sitting and laughing in the audience of the AIB ‘roast’. After the notice was served on Shobhaa De, she moved the Supreme Court which issued a temporary stay on proceedings against her for a few months before recently asking her to respond to the comments.
To understand the sheer absurdity of this notice being served on Shobhaa De, one needs to first understand the rationale for parliamentary privileges, which are constitutionally enshrined in Article 105 (for Parliament) and Article 194 (for State Legislatures). Like several of our constitutional doctrines, parliamentary privilege is an inheritance from the British and it is not codified i.e. there is no rulebook clearly defining the acts or conduct which is considered to be a breach of parliamentary privilege. In the UK, parliamentary privilege evolved in the context of a newly formed democracy trying to hold its own against the monarchy which was traditionally the only power centre. In this context, parliamentary privilege came to mean the right of Parliament to set its own internal rules of functioning and most importantly, provide immunity from legal liability under civil law for speech made by Parliamentarians in the course of the proceedings of the House. The idea was to ensure elected representatives could speak their mind freely during the course of parliamentary debates without the fear of being sued or arrested for their utterances. A MP therefore can never be sued for defamation even if their words are blatantly defamatory provided of course these words are uttered during the course of proceeding in the House. Although nobody outside Parliament can hold MPs accountable for their utterances, these MPs will still be held accountable for their utterance by internal parliamentary committees for any potential breach of parliamentary rules.
Flowing out of this same concept of parliamentary privilege, is the power of a legislature to punish for ‘contempt of the house’. As explained in a Rajya Sabha publication (at p.22), “It is a breach of privilege and contempt of the House, to make speeches or to print or publish any libels reflecting on the character or proceedings of the House or its committees or on any member of the House for or relating to his character or conduct as a Member of Parliament. Such speeches or writings are punished by the House as contempt on the principle that such acts "tend to obstruct the Houses in the performance of their functions by diminishing the respect due to them.” It should be noted that this power is not expressly mentioned in the Constitution but borrowed from old British parliamentary convention. This is legal because at the time of its making, the Indian Constitution did not define the scope of parliamentary privileges, preferring instead to merely state that the Indian Parliament would enjoy the same privileges as enjoyed by the House of Commons of the Parliament of UK and ‘contempt of Parliament’ was very clearly covered under the privilege doctrine in the U.K.
The key difference, however between the UK and India, is that the last time the House of Commons hauled up an outsider (non-member) for ‘contempt of the House’ was in 1957, when the House of Commons found John Junor of the Sunday Express, guilty of contempt of the House because of certain remarks that he made criticizing the generous petrol allocations received by MPs while common citizens had to suffer from fuel rationing in the aftermath of the Suez crisis. In India however, non-members, especially journalists are routinely hauled up by state legislatures for ‘contempt of the house. In order to understand the scale of the problem, it’s necessary to examine some of the cases in the recent past.
In 2003, the Speaker of the Tamil Nadu legislature issued arrest warrants against the Publisher and four Senior Journalists of the Hindu and the Editor of Murasoli because of articles questioning the then Chief Minister’s J. Jayalalitha’s conduct on the floor of the house. Although the Supreme Court eventually stepped into stay the operation of the arrest warrant, the Tamil Nadu police had already conducted dramatic raids on the houses of the journalists to arrest them. The Maharashtra Vidhan Sabha, which has served notice on Shobhaa De has also used its contempt powers liberally in the past. In the last few years, this legislature has issued a breach of privilege notice to actor Anupam Kher after his utterances against the Indian Constitution at Anna Hazare’s agitation and against journalists covering the assault of a policeman by 5 legislators. One of these journalists, Nikhil Wagle was imprisoned earlier in 2002, for a day, by the Maharashtra Legislature for an editorial that he had written in 1998 criticizing the conduct of legislators in Parliament. In 2006, this same legislature invoked its powers of privilege to jail for 90 days the President of Fight for Right Bar Owners' Association because he was found to have made derogatory comments about the deputy CM after the government’s decision to ban dance bars. The order was challenged before the Bombay High Court, which expressed its inability to interfere with parliamentary privileges since the Constitution limits the extent of judicial review of such legislative decisions.
Shobhaa De was thus lucky that the Supreme Court even stayed the notice because courts are quite wary of interfering with the legislature’s constitutional right to regulate its business and powers. More recently there has been news that the Privileges Committee is merely asking Shobhaa De for a clarification and that no coercive action will be taken against her. That’s too little too late. No citizen should be required to even provide a clarification for a harmless tweet.
Indian editors have been demanding codification of parliamentary privileges for quite some time now. However mere codification doesn’t guarantee better protection of free speech. The reason for this is an old Supreme Court judgment, called the Searchlight case, where 4 of the 5 judges on a constitutional bench of the Supreme Court held that the fundamental right to free speech contained in Article 19(1)(a) of the Constitution could not trump parliamentary privileges contained in Articles 105 and 194 of the Constitution. Justice Subba Rao was the only dissenting judge. As long as this relationship between fundamental rights and parliamentary privilege is not redefined by the Supreme Court to alter the balance in favour of fundamental rights, there is little hope of things changing even after codification of privilege because the legislature can legally codify its privileges in a manner which clearly violates fundamental rights.