Fundamental Rights and Parliamentary Privileges in India

Parliamentary Privileges are special immunities available only to the members of the legislature (legislative members), while Fundamental Rights are guaranteed by the Constitution to every citizen and, in some cases, to non-citizens as well. At times, there have been conflicts between these two, and this law article discusses the result of such conflicts.

The Concept Behind Conferring Parliamentary Privileges

Ideally, lawmakers should be subjected to the laws which they create just as they would bind other citizens. But in light of their duties as a particular class of public officials, the concept of parliamentary privilege appears justified.

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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.”

Thus, the purpose behind conferring privileges was to ensure certain immunities for the business of the House to be unfettered by fear or favour.

The will of the people, expressed through the election of their representatives, is supreme in a democracy. So, keeping the best interests of democracy in mind, the framers of the Indian Constitution included the concept of parliamentary privileges. In India, such privileges, under Article 105(4), also extend to individuals who have a right to speak and take part in the proceedings of the House or any of its committees.

Privileges Conferred 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, which is a replica of Article 105, defines the privileges of the state legislature. Two privileges are defined by name; these include:

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  1. The freedom of speech and
  2. 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 Privileges: Evolution and Status Quo

Despite the change in the terminology, other privileges are still those that were enjoyed by the British House of Commons at the commencement of the Constitution. However, only the privileges enjoyed by the House of Commons as legislature are available to the Indian legislature and not the ones enjoyed by the House of Commons as the judiciary. No privileges have been defined so far, so the powers and privileges of the Parliament are still those of the “British House of Commons at the commencement of the Constitution.” The Supreme Court has always referred to British precedents to adjudicate matters of a ‘breach of privilege’ of the Indian Parliament.

Article 105 mentions freedom of speech and freedom of publication of proceedings by name. These privileges include immunity from court proceedings for words said and vote cast or publications made by a member in furtherance of the business of the House.

Other privileges include freedom from arrest, the right to exclude strangers from the session, the right to prohibit the publication of debates, the right to regulate its composition with regards to vacancies, qualifications and disputed elections, or the expulsion of members.

The Parliament also has a right to regulate its internal proceedings, to adjudicate upon matters in the vicinity of the House, and to expel members when it deems necessary.

Finally, to safeguard its interests, the Parliament also has a right to punish members and strangers for breach of privilege or ‘contempt of the House’.

The Use and Abuse of Parliamentary Privileges

In August 1961, the Lok Sabha issued a notice to RK Karanjia, the editor of Blitz. This was for an article titled The Kripaloony Impeachment, which wrote about JB Kripalani’s criticism of the then Defence Minister. It was alleged that the article libelled an honourable member of this House and referred to him in a contemptuous and insulting manner. In attempts to diffuse the situation, the New Delhi correspondent of the magazine had to apologise to the House.

In 1984, the Legislative Council of Andhra Pradesh summoned Ramoji Rao, the editor of Eenadu. Mr Rao moved the Supreme Court, and it ordered a stay against his arrest. This order was disregarded by the Chairman of the Council, who directed the commissioner of police to produce Mr Rao before the Council. The court passed another order which restrained the commissioner from arresting Mr Rao. Surprisingly, the Council Chairman urged the commissioner to ignore this order too. Before the event could turn any uglier, NT Rama Rao, the Chief Minister, asked the Governor to prorogue the Council.

In another incident in 1987, the speaker of the Tamil Nadu assembly got S Balasubramaniam, the editor of Ananda Vikatan, imprisoned after condemning him unheard.

In all the above cases, we saw a direct conflict between Fundamental Rights and privileges. Some other cases that dealt with different perspectives of the relationship between these two are dealt forthwith below.

Balancing Fundamental Rights and Parliamentary Privileges: Article 19 (1)(a), Article 21, and Article 194

Generally, Fundamental Rights enjoy supremacy over any other provision of the Constitution. However, the very nature of parliamentary privilege is to make the members more equal than others, and because of the looming uncertainty over their codification, these have, at times, conflicted with Fundamental Rights. The courts have followed different rationales to identify if one prevails over another.

GK Reddy vs Nafeesul Hassan Case (1954 SC 636)

Homi Dinshaw Mistri (a deputy editor of the magazine Blitz) was arrested on charges of breach of privilege in Bombay and taken to Lucknow. He was detained for production before the speaker of the Uttar Pradesh Legislative Assembly. A Habeas Corpus petition was filed for his release under Article 32. It was alleged that Mr Mistri was not produced before a magistrate within twenty-four hours of arrest. The Attorney General admitted before the court that the allegations are well founded. This was required under Article 22(2) of the Constitution. Hence, the court accepted the Habeas Corpus petition and directed that Mr Mistri be released.

In this case, the privileges were overshadowed by the Fundamental right guaranteed under Article 22(2). However, this was not treated as a precedent by the court in The Searchlight Case.

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:

“Freedom of the press is the ark of the covenant of democracy because public criticism is essential to the working of its institutions.”

And this is the norm; freedom of the press has always been read into the freedom of speech and expression guaranteed under Article 19(2).

However, like every major norm, this also has exceptions, and the Supreme Court decided differently in 1960.

In MSM Sharma vs Sri Krishna Sinha, also known as the Searchlight Case, the court was confronted with the question of whether the right to freedom of the press prevailed over parliamentary privileges under Article 194.

In this case, a member of the Bihar Legislative Assembly had criticised the incumbent Chief Minister. Some accusing remarks were made that suggested that the Chief Minister had appointed ministers and made improper transfers of civil servants at the behest of a former industry minister. Questions were asked as to how this former minister had been appointed as the chairperson of the Bihar State Khadi Board just to get him accommodation in the state’s capital city. The speaker decided to expunge most of the references to the name of this former minister from the official records of the proceedings.

But in contravention, The Search Light, a newspaper, reported the contents of the speech and published the name of the former minister. The assembly issued a notice of breach of privileges to its editor and publisher for reporting the expunged remarks.

The editor decided to approach the Supreme Court under its writ jurisdiction. He argued that proceedings for the breach of legislative privileges would violate his right to ‘freedom of speech and expression’ (Article 19(1)(a)) and ‘personal liberty‘ (Article 21).

The court framed two legal questions, namely:

  1. Whether the legislature could use its privileges to restrict reportage of openly conducted proceedings; and
  2. Whether these privileges would prevail over the freedom of speech and expression of the petitioner?

The court observed that the House of Commons had the privilege of prohibiting the publication of even honest reports of the proceedings of the House. The majority upheld that the exercise of privileges can override the Fundamental Right to freedom of speech and expression under Article 19(1)(a). Thus, the court held that Article 19(1)(a) must yield to Article 194(3) as this was the only way of ‘reconciling’ the two.

Chief Justice CR Das also explained why the legislature is resistant to the codification of privileges. He held that if a ‘law’ codifies privileges, it would be subject to Fundamental Rights like any other ‘law’.

Justice Subba Rao dissented. He remarked that the House of Commons had no privilege of prohibiting honest reports of the proceedings of the House. He opined that the reasoning adopted by the court would ‘unduly circumscribe’ the cherished right to freedom of speech and expression.

The Searchlight Case opened a pandora’s box, one that was bound to unleash a tussle between the judiciary and the executive over parliamentary privileges.

Keshav Singh’s Case (Special Reference No 1 of 1964 AIR 1965 SC 745)

This decision can be seen as one where the court saw the need to ‘recapture the genie’ it had let loose in the Searchlight Case.

On 14 March 1964, the UP Assembly initiated privilege proceedings against Keshav Singh for circulating a pamphlet criticising a serving legislator. Later that day, the speaker issued an arrest warrant. This was because of his behaviour upon receiving the notice and a ‘disrespectful’ letter sent to the speaker. Keshav Singh was detained. He petitioned the Lucknow bench of the Allahabad High Court for a writ of habeas corpus.

A two-judge bench of the court directed his release the next day.

This was met with the heavy hands of the assembly, which issued a fresh notice of breach of privileges roping in the two judges, Keshav Singh, and even his lawyer. The notice required them to be produced in custody before the Assembly. Even Keshav Singh’s fresh detention was ordered after the initial period of detention.

The affected parties rushed to the Allahabad High Court, where a full bench of 28 judges issued an interim order restraining the assembly. The sorry state of affairs made the President seek an advisory opinion from the Supreme Court under Article 143(1).

The legal questions were focused on whether privileges can be invoked against acts done outside the House and whether they are open to judicial scrutiny. HM Seervai argued for the assembly that it had wide powers to define its privileges through resolutions, and MC Setalvad, appearing on behalf of the judges, argued that such acts of the legislatures are open to judicial scrutiny.

A special bench with 7 judges ruled by 6-1 that the content of Article 194(3) must ultimately be determined by courts and not legislatures.

The court made the following observations:

  • The writ jurisdiction of the High Courts is not subject to parliamentary privileges.
  • The right to move Supreme Court under Article 32 is not subject to privileges, and it is an ‘absolute right’.
  • The guarantee of personal liberty under Article 21 applies when the legislature exercises its privileges. If a person alleges a violation of his right to life and personal liberty, the court will examine the merits of the contention as a duty. It will then be scrutinised by the court whether the liberty was taken according to the procedure established by law.
  • The court also observed that it is not laying down a general rule that Fundamental Rights will always prevail over privileges. In para 127, it held, “As we have already indicated, we do not propose to enter into a general discussion as to the applicability of all the Fundamental Rights to the cases where legislative powers and privileges can be exercised against any individual citizen of this country, and that we are dealing with this matter on the footing that Article 19(1)(a) does not apply and Article 21 does.

The Hindu and Murasoli Case

In another case, Tamil Nadu Legislative Assembly passed a resolution in 2003 directing the arrest and imprisonment of six employees of The Hindu and Murasoli, its sister publication.

They were directed to be arrested for fifteen days. This was in response to an editorial the newspaper carried titled Rising Intolerance. It also prohibited journalists of these newspapers from reporting the legislature’s proceedings for 15 days.

This editorial defended previous reports which had criticised Chief Minister Ms J Jayalalithaa for the use of strong language in her speeches.

The privilege committee recommended punitive steps, and a proceeding was initiated. The Supreme Court ordered a stay, and this unwarranted campaign was brought to a halt.

Conclusion and Suggestion

The Indian legislatures cite British precedents to justify their stance for initiating privilege proceedings. However, on 9 December 1975, Bernard Levin wrote in The Times (London) and pointed out the ‘curious passion the House of Commons seems to have for making a collective ass of itself’. Interestingly, no privilege proceedings were initiated by the House of Commons. We can only imagine how Levin would’ve been reprimanded and arrested for ‘contempt of the House’ in India.

This is exactly why in 1954, the first Press Commission proposed the codification of privileges owing to the ‘oversensitiveness of the legislature to honest criticism‘. We see the need to codify parliamentary privileges to prevent their abuse. The very purpose of conferring these privileges was that the will of the people find a voice in the House. What was conferred as a shield must not be used as a sword to stifle honest dissent against the government. Even the doctrine of harmonious construction also directs that the Fundamental Rights of the populace must prevail over the ‘privileges’ of the representatives they elect.

Tanzeel Islam Khan
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