Throttling freedom of expression: All privileges need to be codified

In India, almost every institution is using its discretionary powers to gag free speech. The power of the higher courts to punish for their contempt is one such arbitrary law, which is applied selectively. The legislature is also empowered to punish for the breach of its privilege. Since it is not codified, any act, fair or foul, can be construed as the breach of privilege. In both cases, defying the principle of natural justice that nobody can a judge in his own cause, the court and the legislature decide their own cases.

Now, even the Election Commission of India has asked for the power of contempt to punish its carping critics. So, every institution wants a sword to make its authority felt. Britain, the progenitor of the contempt of courts act, has gone a long way and does not take recourse to this law to silence criticism. Its most noted case of contempt of court goes back to 1631, when at Salisbury, a prisoner threw a brickbat at the judge of Assize and he was immediately hanged in the presence of the court. But all this is consigned to history and such a law is not extant any longer. In most developed democracies, judges are protected by the law of defamation like any other citizen. Similar is the position with the legislative privileges. The House of Commons prefers to ignore criticisms and does not throttle the freedom of speech.

Speaker of the Karnataka Legislative Assembly K.B. Koliwad has used the fantabulous law of privilege (for legislators) to punish two journalists by awarding one year of imprisonment and Rs 10,000 fine each to them for allegedly writing defamatory articles against three MLAs. It is a unique case of accuser, investigator and judge rolled in one. It was Mr Koliwad who had brought the complaint against them, then he probed the allegations himself as head of the privilege committee and finally sentenced them himself as speaker. A single-judge bench of the Karnataka high court sought suggestions from the speaker and chairman of the privileges committee of the legislature to sort out the controversy over the arrest order. Judicial intervention is welcome and required.

But the first judicial intervention in such a case led to a full-blooded confrontation between the UP Legislative Assembly and the Allahabad high court in 1964. The speaker of the Assembly sentenced one Keshav Singh and three others on the charge of committing contempt of the House and they were sent to jail. One Narsingh Narain Pandey, MLA, had filed a complaint that Keshav Singh and others had distributed pamphlets alleging corruption against him. He alleged that it was a breach of his privilege. Keshav Singh challenged his arrest in the Allahabad high court, which stayed the order of the speaker. Annoyed, the speaker issued arrest warrants against the two judges of the high court also who had stayed his order. The two judges immediately moved the Allahabad high court and its full bench of 28 judges stayed the arrest order against them. The commissioner of Lucknow proceeded on leave as he did not know which order was to be complied with- speaker’s or high court’s.

Chief minister Sucheta Kripalani approached Prime Minister Jawaharlal Nehru who made a Presidential reference to the Supreme Court, which advised against Assembly’s arrest warrant against the judges. Later, the Allahabad high court dismissed the writ petition of Keshav Singh.

In India, modern parliamentary record can be traced to the Charter Act of 1853, to which minor changes were made in 1861, 1892 and 1909. The Government of India Act, 1935, contained provisions pertaining to the privileges of members of the Indian legislature. When India’s Constitution was being framed, a reference was made to the privileges of the House of Commons, as there was no time to formulate privileges succinctly and it was, therefore, left to the future Parliament to prepare them. Members of the Constituent Assembly took umbrage at the reference to a foreign Parliament in the Constitution of their country, which had just dismantled the imperial yoke.

However, Alladi Krishnaswami Aiyar assured them on behalf of the Drafting Committee that the privileges of the House of Commons were being made applicable only as a temporary measure. The Constituent Assembly adopted these provisions after getting such a categorical assurance. But it was not to be temporary and the President of the Constituent Assembly Rajendra Prasad stood vindicated, as he had warned on October 16, 1949: “So, it is only a temporary affair. Of course, Parliament may never legislate on that point and it is therefore for the members to be vigilant.”

However, it is not correct to say that privileges could not be codified as there was no time for it. Even in 1949, a draft code of privileges was available in the form of Bengal Assembly Powers and Privileges Bill, 1939. Then was it a case of oversight? Perhaps not. Non-formulation seems to have been a deliberate exercise. It is evident from the views expressed by the then Speaker of Lok Sabha Mavalankar at the Conference of Speakers held in September 1949: “It is better not to define privileges, just at the moment but to rely upon the precedents of the British House of Commons. The disadvantage of codification at the present moment is that whenever a new situation arises, it will not be possible for us to adjust ourselves to it and give members additional privileges. Today, we are assured that our privileges are the same as those of the members of the House of Commons…In the present set up any attempt at legislation will very probably curtail our privileges.” Again, in August 1950, Mr Mavalankar reiterated at the Conference of Presiding Officers that legislation would crystallize the privileges and they could not be widened.

Thus, privileges were not codified. Article 105 of the Constitution specifically mentions two privileges in Clause (1) and (2), viz., freedom of speech and freedom of publication of proceedings. Clause (3) specifies other privileges which in the original form, as on January 26, 1950, provided that these “shall be such as may from time to time be defined by Parliament by law, and until so defined, shall be those of the House Commons of the Parliament of the United Kingdom”. The reference to the House of Commons was deleted in 1978, and now it reads that these privileges “until so defined (by Parliament by law) shall be those of that House… immediately before the coming into force of Section 15 of the Constitution (Forty-Fourth Amendment) Act, 1978 (w.e.f. 20 June 1978)”. Article 194, which deals with the Privileges of state legislatures, is a replica of Article 105, except that the reference to the House of Lords has been omitted by Section 26 of the same amendment. It is pertinent to mention that Article 105 is modelled on the Constitution of Australia, which has codified privileges.

Perhaps, it will never be done in India because, as recorded by S.R. Das,  Chief Justice, in the Searchlight Contempt case, if privileges were codified by “law”, that law would have to satisfy the tests of the fundamental rights like other law.

Privileges are meant to ensure freedom of speech of legislators and that the proceedings of the House are not obstructed. Misuse of this power must be checked by codifying it.

The writer is a senior TV journalist, columnist and author