Debating the Privilege of legislators

In late June 2017, the Karnataka Assembly found two journalists, Ravi Belagere and Anil Raju, guilty of publishing defamatory articles about the Speaker and other MLAs. They have each been sentenced to one year’s imprisonment.

The Indian Constitution specifies the powers and privileges of Parliament in Article 105 and those of State legislatures in Article 194. In brief, they

(a) provide freedom of speech in Parliament subject to other provisions of the Constitution and standing orders of the House; (b) give immunity for all speeches and votes in Parliament from judicial scrutiny; and (c) allow Parliament (and State legislatures) to codify the privileges, and until then, have the same privileges as the British Parliament had in 1950. Till now, Parliament and State legislatures have not passed any law to codify their privileges.

With no codified laws for what constitutes a breach of privilege offence or prescriptions for punishment, this is largely a grey area in legal terms.

Provisions of the Constitution protect the privileges of the legislature
  • Article 105 pertains to the powers, privileges, etc, of Parliament, its members and committees.
  • Article 194, which is identical to 105, protects the privileges and powers of the houses of legislature, their members and committees in the states.
  • These Articles protect:
    • the freedom of speech of parliamentarians and legislators
    • insulate them against litigation over matters that occur in these houses
    • give powers to define the powers, privileges and immunities of a house, its members and committees
Origins of the privileges
  • These are derived from the British House of Commons.
  • The idea of privilege emerged in England as Parliament started to protect itself from excesses by the monarch. It established several rights and privileges including the freedom of members of Parliament to freely speak and vote in Parliament (including its committees).
What constitutes a breach of privilege?
  • The Constitution accords special privileges and powers to parliamentarians and legislators to maintain the dignity and authority of Parliament and the legislatures, these powers and privileges are not codified.
  • Hence, there are no clearly laid out rules on what constitutes breach of privilege and what punishment it entails.
Criticism of this provision
  • It is sometimes used to counter media criticism of legislators and as a substitute for legal proceedings.
  • All persons have a right to trial by a competent, independent and impartial tribunal. Breach of privilege laws allow politicians to become judges in their own cause, raising concerns of conflict of interest and violating basic fair trial guarantees.
  • The power of privilege has been used against journalists in several instances. Examples:
    • In 2003, the Tamil Nadu Legislative Assembly sentenced the publisher, editor, executive editor and two senior journalists of The Hindu and the editor of Murasoli to 15 days’ imprisonment for contempt.
    • The ‘Searchlight’ case: This newspaper from Bihar carried out the publication of expunged portions of proceedings of the Bihar Assembly. On being sentenced to imprisonment, the editor moved the Supreme Court, arguing that the publication was protected under Article 19(1)(a). Rejecting his stand, the Court held that the power of judicial review, applicable to ordinary law, could not be invoked to challenge an order made under Article 194, a Constitutional provision.
What is the procedure in privilege cases?
  • All state legislatures have special privilege committees comprising 10 to 12 legislators as members and usually headed by a senior politician from the ruling party.
  • The committee meets regularly and members are given additional allowances to attend meetings.
  • Whenever a legislator has a complaint he can send a letter to the committee. These matters can pertain to:
    • the sidelining of a legislator by government employees when it comes to projects and initiatives
    • impolite behaviour by government servants
    • not being invited to public events etc.
  • The committee will begin proceedings as per the Criminal Procedure Code. The accused person is summoned and an inquiry is conducted by the committee and based on findings a recommendation is made to the legislature.
  • When the matter is tabled in the legislature, a debate can be initiated on the report and based on the assertions of the House the Speaker can order the punishment as defined by the privileges committee or order otherwise.

Over the years, the claim to unbridled powers enjoyed by the legislatures under Articles 105 and 194 has attracted a lot of controversy and litigation.

Constitutional courts have largely tried to stay away from interfering with the internal functioning of Parliament and state legislatures but they tend to get involved when the fundamental rights of citizens appear to be egregiously breached.

However, the Supreme Court’s jurisprudence in this regard however remains somewhat unclear. There seems to be no rationale for the Supreme Court holding that certain fundamental rights override legislative privilege, while others are subservient to it.

Without the judiciary to protect them, the fights between India’s legislatures and her press have been unequal. Despite suggestions that the concept of parliamentary privilege be done away with altogether, no such proposals have seriously been considered by Parliament.