Parl privileges: Undefined & ambiguous

On the complaint of a BJP MP, two newspapers got a notice from the Privileges Committee of Parliament for alleged 'breach' of privilege, for the comments published on the PM's speech in Parliament. Earlier, the TRS moved a motion of Privilege against the PM, for his remark on the passage of bifurcation Bill to divide AP. What is a privilege, and who breached it?

The plea of privilege is a contentious confusion in Indian Constitution. The privileges or special powers that put the Parliamentarians a level above the common man, affecting equality, are undefined, ambiguous and, hence, arbitrary. While defined privileges pose no issue, uncodified special powers could be in potential conflict with fundamental rights.

Some privileges, of course, were very clearly codified, for which framers of the Constitution deserve appreciation. They are:

Freedom of speech with immunity

(i) There is an absolute freedom of speech for the MPs and MLAs or MLCs. The citizen also has freedom of speech under Article 19(1)(a) of our Constitution, but it is limited, as Article 19(2) allows several restrictions on some grounds, which were made into law by the Parliament. For instance, there is possibility of a charge of defamation – both criminal and civil wrong, of sedition, or contempt of court. But if a legislator speaks, even if that is defamatory or otherwise wrongful, the Constitution Article 105 ensures no legal challenge or charge to that speech. This is a specific and clear 'special power' which is justified because the legislator should be free to discuss on policies and laws for administration of the nation.

Sir John Eliot's case: King's Bench convicted Sir John for 'sedition' in his speech in House of Commons. But the top court, the House of Lords, reversed it, saying the court should never assume jurisdiction over the charge of seditious speeches, which was 'fully answered by the plea of privilege.'

Voting cannot be probed

(ii) Second privilege that is very candid is the immunity for the motive to vote. The questions like how did they vote, why did they not etc should not be asked. No court has any jurisdiction to probe the voting issues. Except that speech and vote of legislator is subject to provisions of the Constitution and rules and regulations set by the House, there is no other limitation.

Power to make rules

(iii) Article 118 deals with some procedures of Parliament. As per this article, each House of Parliament (there is a similar provision Article 194 for legislature also) has the power to make rules and regulates its proceeding and conduct of its business. Both Houses had enacted their rule book which is known as Rules of Procedure and Conduct of business in Lok Sabha and Rules of Procedure and Conduct of Business in the Council of States respectively.

Prohibition to debate on judges' conduct

(iv) Article 121 prohibits discussion on conduct of the Judges of the Supreme Court and High Court. If someone discusses the conduct, the Parliament itself has to take care of it, but no other institution including courts can do any thing about it. This makes very clear that the privilege and immunity are applicable only to what they said and how they voted in the House. Which also means that there is no privilege or immunity for any act or speech of legislator, if it is outside the House. For instance, the statements made to media outside the House are amenable to limitations on freedom of speech under Article 19(2) but the privileges under Article 105 will not apply.

Freedom from arrest in civil cases

(v) In civil cases, legislator has privilege in the form of 'freedom from arrest.' A legislator will not be liable for arrest during the continuance of a session of a House, 40 days prior and after the adjournment of the house. This privilege specifically mentioned in Section 135A of the Code of Civil Procedure, 1908.

"135A. Exemption of members of legislative bodies from arrest and detention under civil process— (1) No person shall be liable to arrest or detention in prison under civil process—

(a) if he is a member of— (i) either House of Parliament, or (ii) the legislative Assembly or Legislative Council of a State, or (iii) a Legislative Assembly of a Union territory, during the continuance of any meeting of such House of Parliament or, as the case may be, of the Legislative Assembly or the Legislative Council;

(b) if he is a member of any committee of— (i) either House of Parliament, or (ii) the Legislative Assembly of a State or Union territory, or (iii) the Legislative council of a State, during the continuance of any meeting of such committee;

(c) if he is a member of— (i) either House of Parliament, or (ii) a Legislative Assembly or Legislative Council of a State having both such Houses, during the continuance of a joint sitting, meeting, conference or joint committee of the Houses of Parliament or Houses of the State Legislature, as the case may be, and during the forty days before and after such meeting, sitting or conference.

(2) A person released from detention under sub-section (1), shall, subject the provisions, of the said sub-section, be liable to re-arrest and to the further detention to which he would have been liable if he had not been released under the provisions of sub-section (1).

Undefined Privileges

(i) A legislator also cannot be asked to attend the court as witnesses or jurors. However, if an accused is elected to Legislative House, he has no immunity from attending the courts as privilege. He also does not have 'freedom from arrest' in criminal cases as accused. With increasing number of accused persons being fielded by parties and elected by people, the immunity-kind of privilege appears to be redundant and irrelevant. It is inequitable to imagine how a criminally charged could be enjoying the privileges meant for high constitutional dignitaries like elected Parliament members.

These are individual privileges available for the legislators. Some privileges are collective, which are as per the conventions, i.e., not specifically mentioned anywhere.

Collective Privileges of House

(ii) Right to prohibit the publication of proceedings. It has to be authorised by the House. Live telecast, Press Gallery etc are obvious authorisations of publications. Reporting the proceedings of the House by newspapers and electronic media is common. But the House has all the power to prohibit certain publications.

(iii) Right to exclude strangers: non-members can be excluded. Whatever is needed for free and fair discussion, can be regulated by the House. Any breach of it could lead to penal action for 'breach of privilege'.

(iv) Right to punish members and outsiders for breach of its privileges: A stranger or whoever enters House defying order of Speaker, or who ever causes contempt of House by bringing House or members to ridicule, defy the authority of House could be punished with admonition, reprimand, suspension from service of the House for the session, fine or imprisonment. This is the significant power of the House, exercised by the privileges committee or Speaker, as per the prescribed rules and procedure. What is privilege and how to determine its breach are left open to be decided from time to time.

These privileges flow from sovereign authority of Parliament or its supremacy as Second Estate- Legislature within the frame of Constitutional estates.

Parliament has no time to define its privileges

The Constitution in Article 105 gave power to Parliament to define its 'privileges, their breach and consequences.' But the Parliament had not made any law on this aspect. In the same clause, the Constitution said that until the codification by the Parliament, the privileges which are prevalent in United Kingdom will be the privileges in India. The scope of punishing individuals for breach was gradually reduced in Britain significantly since 1950, but unfortunately the old privileges prior to such refinement in 1950 before commencement of the Constitution continue to be privileges of Indian Parliament even in 2022.

When such a high power is not defined as per the contemporary needs, it will result in arbitrary deprivation of the rights of the people.

In such an ambiguous state of affairs, it is not known how to deal with privileges notice issued against Prime Minister Narendra Modi by the TRS MPs of Rajya Sabha and another counter Privileges notice issued by the BJP MP Dharmapuri Arvind against the Telangana daily newspapers Namaste Telangana and Telangana Today. Can anyone claim that Prime Minister, who is Leader of the House, has no legal authority to comment upon the process of passage of Bill – AP Reorganization Bill, 2014? Can Parliamentary Privileges Committee decide whether his comment amounts to breach and punish?

Whether complaint against the two newspapers which commented on the PM's observation about the passage of Bill to divide the State of Andhra Pradesh, stand the scrutiny of judiciary, especially when these two privilege complaints are a result of political rivalry between TRS and BJP?

(The author is Dean & Professor, School of Law, Mahindra University, Hyderabad, and former Central Information Commissioner)

(The opinions expressed in this column are those of the writer. The facts and opinions expressed here do not reflect the views of The Hans India)