Codify Parliamentary Privileges to protect free speech
If privileges of our elected representatives are not codified, they can be misused,
undermining fundamental rights to life, liberty and expression, says RAKESH SHUKLA
The notices for moving breach of privilege motions in Lok Sabha against actor Om Puri and Kiran Bedi focus attention on the issue of the powers of punishment enjoyed by the legislatures in India. Parliament and State Assemblies enjoy the power to send an individual to prison for contempt of the House, immediately bringing in the crucial right to life and liberty enshrined in Article 21 of the Constitution.
Similarly, as in the present Puri-Bedi case where the breach of privilege is alleged due to derogatory remarks made about Members of Parliament, the fundamental right to freedom of speech and expression comes into play.
The claim by our legislatures to have an unquestioned power to punish for contempt is based on Articles 105(3) and 194(3) respectively of the Constitution which declare that till the powers of Parliament and State Assemblies are codified, they would be the same as those enjoyed by the House of Commons. Repeated requests to codify the privileges so that they do not remain susceptible to misuse by legislatures to encroach upon the fundamental rights to life, liberty and expression have fallen on deaf ears.
In fact, one of the most impassioned pleas to codify privileges had been made by Nikhil Wagle, editor of Bombay’s Marathi eveninger Apla Mahanagar, when he was imprisoned for contempt of the House by the Maharashtra assembly in 1994. The spirited editor preferred not to approach the courts and chose to undergo imprisonment for the right to freedom of expression.
As imprisonment involves curtailment of invaluable liberty, crimes are defined in precise terms with clearly delineated ingredients which have to be fulfilled before a person can be sent to jail. In a double whammy, the legislature has chosen not to specify the privileges which when breached would lead to punishment for contempt and along with taken great umbrage when courts have stepped in to protect the right to life and liberty of individuals.
Members of both the Houses of the Maharashtra Assembly were incensed at the release by the Bombay High Court in 1999 of an engineer sentenced to 30 days imprisonment by the Lower House. Members felt the interference amounted to insult of the Legislature and wanted the House to proceed against the Court for breach of privilege.
Similarly on the occasion of the arrest of AIADMK leader Thamaraikkani in 1999 for assaulting a minister on a warrant by the Speaker, his release by the Madras High Court, re-arrest and re-release on a fresh order of bail by the court, the Speaker of the Tamil Nadu Assembly had declared that the proceedings of the House will not be handed over to the Madras High Court. The High Court in turn took the position that “in the garb of privilege”, comments amounting to interference in the judiciary cannot be made in the assembly.
The most forceful attempt by the legislature to assert an absolute unquestioned power to punish for breach of privilege was in Keshav Singh’s case in 1964. One Keshav Singh was adjudged guilty of contempt by the assembly and sentenced to imprisonment. The high court directed his release. The assembly directed that the two high court judges be brought in custody before the House for contempt.
The judges, in turn, filed petitions before the Allahabad High Court. In an unprecedented move, a full bench comprising all the 28 judges of the high court passed an order restraining the Speaker from issuing warrants for the arrest of the judges. Thereupon, the assembly passed a resolution that the question of contempt by the judges would be determined after giving them an opportunity to explain as in the case of any ordinary person.
The matter was referred by the President to the Supreme Court, which declared that the high court was competent to deal with the petition of a person sentenced by the legislative assembly. It held that such exercise of jurisdiction by the high court in no way amounts to contempt of the assembly. In the context of the present breach of privilege motions this would translate into the right of Puri-Bedi to move courts in assertion of their fundamental rights in case punitive action against them is taken by Parliament.
The privilege to punish for contempt of the House lies in the specific history of England where the House of Commons had to struggle for existence against the prerogatives of the King, special rights of the House of Lords and the authority of the ordinary courts of law.
The power to issue a warrant for contempt of the House, which could not be questioned in courts, is rooted in the fact that at one time the English Parliament was regarded as a superior court-of-record. In India, Parliament and State Assemblies are creatures of the Constitution and have no history of having to deny the jurisdiction of courts in a struggle for existence.
The power to punish for contempt is derived from the conception of a court of record which has inherent power to punish for contempt. Under Articles 215 and 129 of our Constitution the various High Courts and the Supreme Court of India have been declared to be courts-of-record. Even the courts have been conferred the power to punish for contempt not for the protection of individual judicial officers from insult but for ensuring implementation of orders to ensure justice.
In a democracy, the power to punish for contempt, whether of the legislature or the judiciary, has to be seen in the context of the fundamental freedoms of life, liberty, religion, equality, speech and expression. The Constitution has conferred contempt powers on these institutions to serve the interests of “the People of India” and to render justice to the ordinary citizen.
(Rakesh Shukla is an Advocate in the Supreme Court of India)