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LEGISLATIVE PRIVILEGES AND FUNDAMENTAL RIGHTS: STRIKING THE BALANCE

Fiat justicia ruat caelum (Let justice be done, though the heavens fall) finds reverence in the hallowed halls of the Indian judiciary. Our constitution strives towards this end by declaring in its preamble that there shall be justice for all, social, economic as well as political. This begs the question of whether this arduously detailed constitution strikes a balance when it comes to the controversial topic of legislative privileges, which, on the face of it, seek to guide the parliament to discharge it functions efficiently, without hinderances[1]. Does this privilege degrade the esteem of Fundamental Rights and does it play any role in combating corruption in the legislature?

Art. 105[2] of the Constitution provides for the provision of Privileges of the Parliamentarians (Art. 194[3] being the corresponding provision for the State Legislatures mutatis mutandis).

  1. 105(1) assures the right to free speech inside the House[4],
  2. 105(2) protects the acts of “speaking and voting inside the House” explicitly, from interference from the judiciary. It also provides for the forestalling of liability for the publication of legislative procedures if done under the approval of the House.[5]
  3. 105(3) provides for the Parliament to define its “powers, privileges and immunities in other respects”[6]. The original clause had a reference to the House of Commons of the British Parliament and despite its removal in 1978 (44th Constitutional Amendment)[7], the predominant strategy has been an attempt to prove or negate British precedents, when it comes to litigation related to legislative privilege[8].
Privilege over Fundamental Rights: A Conundrum

The first substantive judgement on the relationship between privileges and Fundamental Rights was delivered in MSM Sharma v. Shri Krishna Sinha[9] (1958), famously known as the “Searchlight case”. A Bihar Vidhan Sabha Member had criticised the then CM during budget discussions[10]. The allegations were contested; thus, the Speaker expunged references to the minister’s name[11]. In May of 1957, The Searchlight newspaper published the expunged contents and later in August 1958, breach of privilege notice was issued against the editor, who then approached the Supreme Court under its writ jurisdiction, arguing that the exercise of legislative privileges violated his “freedom of speech and expression”[12] and deprived him of his “personal liberty”.[13]

The bench framed the following pertinent issues while delivering the judgement:

  1. Whether privilege could be utilised by the legislature to regulate the reporting of public proceedings.[14]
  2. Whether the fundamental rights of the petitioners would become subordinate to the privileges bestowed on the legislature.[15]

Art. 194[16] was adjudged to prevail over Art. 19(1)(a)[17], since the latter was a general provision as against the specificity of the former (generalia specialibus non derogant)[18]. The bench held that the legislature was empowered to restrict the publication of proceedings in order to avoid “erroneous reportage”, which might obstruct the working of the House.[19] However, Subba Rao J giving a dissenting opinion, observed that Art. 194(1)[20] was bounded by the fundamental rights. Consequently, Art. 194(3)[21], ought to be interpreted with due consideration for the freedom of speech and expression of the citizens. He emphasized that Article 194(3) should be referred to as an “ephemeral clause” and should not be emphasized over fundamental rights.

Another indispensable case dealing with the dangers of subordinating the Fundamental Rights to privilege is that of the Special Reference No. 1 of 1964[22], also called the Keshav Singh Case, where the Speaker of the UP Vidhan Sabha issued a breach of privilege notice against one Keshav Singh, for circulating a pamphlet criticising an MLA, along with the lawyer who represented him, and the two judges who ordered bail on his detention[23]. A court meeting of 28 judges issued an interim order restraining the enforcement of the notice and held the warrants against the judges and the lawyer to be invalid. The majority favoured the argument that there were fundamental differences between the English Parliament and that in India.[24] While the former addressed disputes related to elections along with matters of disqualification through special resolutions, the Parliament in India worked under constitutional provisions contemplating judicial intervention wherever necessary.[25] It was observed that the “powers, privileges and immunities” accorded to the legislators in India were “bounded by the constitution” and thus the judiciary should have the power to review the privilege motion.[26]

Privilege as a Weapon against Corruption:

A very significant question concerning parliamentary privileges has been decided in the case of P.V. Narsimha Rao v. State[27]. In 1993 the Union govt. lacked majority in the Lok Sabha, resulting in a motion of no-confidence by the opposition. In order to thwart the motion, large amount of money was given to some members of the JMM (“Jharkhand Mukti Morcha”) by the ruling party, so that they vote against the motion.[28] In a very controversial judgement, the majority held that since the allegation was closely related to voting inside the House, most of the legislators could not be prosecuted.[29] Drawing a line between bribe-givers and bribe-takers, the bench held that the latter could not be prosecuted against.[30] In response to this judgment, the National Commission to Review the Working of the Constitution (NCRWC) recommended to amend Article 105 to explicitly exclude corrupt acts from its ambit.[31] Legislative privileges and corruption came into limelight again in Raja Ram Pal v Speaker, Lok Sabha[32]. On December 12, 2005, a few MPs were caught in a televised broadcast by a private news network as collecting money or other favours in exchange for asking questions during the proceedings of the House.[33] This “cash for query scam[34] garnered extensive media coverage, prompting the Speaker to convene an investigative privileges committee, which then expelled the members.[35] It was observed, by the court, that discretionary use of privilege allowed for taking action against the members whose erroneous conduct caused disrepute to the House, thus obstructing the procedure of the legislature.[36] While Art. 122[37] and 212[38] restricted judicial scrutiny of legislative proceedings on account of allegations of procedural impropriety, there remained scope for examining allegations of “substantial illegality”.[39]

The most recent ruling by the court on this issue is Amarinder Singh v Special Committee, Punjab Vidhan Sabha[40], where the petitioner, a member of the Indian National Congress (INC) party, had served as Chief Minister of Punjab during the 12th Legislative Assembly term from 2002 and 2007.[41] On December 18, 2007, a majority of members of the assembly voted to form a “special parliamentary committee” to investigate the inappropriate exemption of a parcel of land (owned by a private contractor) from an Amritsar “Urban Development Scheme”[42], which reportedly occurred during the petitioner’s reign. On September 3, 2008, the special committee issued its findings, recommending his removal for the rest of the year. On September 10, 2008, another resolution was voted to act on these recommendations, and Amarinder Singh was expelled.[43] He then petitioned the Punjab &Haryana High Court to overturn his dismissal from the state assembly.[44] It was ruled that privilege cannot be utilised to investigate claims of corruption involving powers which were solely executive in nature.[45] It was also observed that the special committee had conducted an investigation into claims relating to activities performed during the last term of the Punjab Assembly, and as a result, using privileges was inappropriate since previous acts did not imperil the fulfilment of legislative tasks during the present term.[46]

Opinion & Conclusion:

To surmise, we can say that though the constitution itself is not very specific upon the topic of privileges, the judgements of the Courts have given way to new construction and interpretation of the provision, thus striking a tacit balance between ensuring legislative privileges to the legislators on one hand and upholding fundamental rights on the other. Despite the importance of these privileges, if abused, they can become a weapon in the hands of the government, to suppress valid dissent and hold a trial in the floor of the House, which goes against the principles of natural justice and the procedure established by law. Through Raja Ram Pal, the Apex Judiciary has carved a window for itself to check whether this power is utilised for its constitutionally mandated purpose or is abused and misused to benefit a few. While the correct and unimpeded functioning of the Parliament is of utmost importance, this power should not be given any leeway of misuse as far as practicable.

Author(s) Name: Alka Nanda Mahapatra (National Law University Jodhpur)

References:

[1] MP Jain, Indian Constitutional Law 89 (8th ed. 2018).

[2] The Constitution of India, 1950 art. 105

[3] The Constitution of India, 1950 art. 194

[4] The Constitution of India, 1950 art. 105(1)

[5] The Constitution of India, 1950 art. 105(2)

[6] The Constitution of India, 1950 art. 105(3)

[7] The Constitution of India, 1950 art. 105(3), amended by The Constitution (Forty-fourth Amendment) Act, 1978.

[8] Siddharth Chauhan, Legislature: Process and Privileges, in Oxford Handbook of the Indian Constitution, at 330.

[9] Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha & Others 1959 AIR 395

[10] Id.

[11] Id.

[12] The Constitution of India, 1950 art. 19, cl. 1(a)

[13] Supra note 9.

[14] Id.

[15] Id.

[16] Supra note 3.

[17] Supra note 11.

[18] Supra note 9.

[19] Id.

[20] Supra note 3, cl. 1.

[21] Id. cl. 3.

[22] Special Reference No.1 of 1964 AIR 1965 SC 745

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] P. V. Narsimha Rao v. State (1998) 4 SCC 626.

[28] Id.

[29] Id.

[30] Id.

[31] Supra note 8.

[32] Raja Ram Pal v. Speaker, Lok Sabha (2007) 3 SCC 184.

[33] Id.

[34] HT Correspondent, 2005 cash-for-query scam: What was the scandal for which 11 former MPs face trial?, Hindustan Times (Dec 07, 2017) https://www.hindustantimes.com/india-news/2005-cash-for-query-scam-what-was-the-scandal-for-which-11-former-mps-face-trial/story-7cFLXU7SffoQhsxKnS2ACM.html

[35] Id.

[36] Supra note 33.

[37] The Constitution of India, 1950 art. 122.

[38] The Constitution of India, 1950 art. 212.

[39] Supra note 8.

[40] Amarinder Singh v. Special Committee, Punjab Vidhan Sabha (2010) 6 SCC 113.

[41] Supra note 8.

[42] Id.

[43] Id.

[44] Id.

[45] Supra note 41.

[46] Id.