The decision of the Committee on Privileges and Ethics of Kerala Assembly to summon the State Chief Information Commissioner and State Information Commissioner to answer breach of privilege of the House raises fresh questions relating to the privileges.

The issue arose over the State Information Commission’s order issued to the State Information Officer of the Assembly V. Jayalekshmi Amma directing her to furnish a copy of the video recording and printed record of the speech of Kerala Congress (Jacob) leader T. M. Jacob in the Assembly in 2005 to an applicant under the Right to Information Act. The Information Officer supplied the applicant -- Kochi based advocate D. B. Binu, with a printed copy of the proceedings but held that the video recording was privileged material.

The charge against the Commission now is that it was encroaching upon the privileges of the House by trying to enforce the order. The Legislature Secretariat despatched the Committee’s summons to Palat

Mohandas, the Chief Information Commissioner of Kerala, and P. N. Vijayakumar, who was State Information Commissioner when the Commission decided the case, on Monday.

The Commission is a statutory body and according to Commission sources it acted only in accordance with the substantive law -- the Right to Information Act, in deciding the matter. The Act has an express provision that information whose release would constitute a breach of Parliament or Legislative Assembly Privilege should not be released to applicants. So, the issue boils down to whether the video recording is privileged information or its release would amount to breach of privilege of the House.

In the Westminster system, papers published by the House are privileged material. But it is in an altogether different context. Their publication would not attract criminal or civil liability. There is also qualified protection for reproduction of extracts by people. A corollary of this privilege was the convention that the members of the House should speak parliamentary language.

The Kerala Assembly considers the edited version of its proceedings as the official record of the proceedings. Transcripts are edited and any portion expunged by the Speaker is removed. The members then get an opportunity to correct their speeches before it is published as the official record. According to the chairman of the Privileges Committee, the video recording is meant to be kept only temporarily. (It helps the Speaker in verifying what was actually said in the House while expunging or approving the proceedings).

The reluctance of the Assembly to release video recordings of the proceedings, and to treat it as a privilege issue, prevent public scrutiny of the extent of editing and alternations going into the official record of the proceedings. This would be against the spirit of the RTI Act. However, it may also be important to ensure that there is only fair use of the material. Westminster type privilege would extend only if extracts are used without malice.

In the case of the particular case of the speech of T. M. Jacob, Mr. Jacob was participating in the debate on a no-confidence motion against the Oommen Chandy Government and had raised allegationsagainst the government. However, the House had permitted the telecast of the proceedings live by private television channels. So, what the advocate has sought is an official record of what had been allowed to be publicised by the House. One question that would arise is whether the House should not have an official recording of the proceedings under such circumstances.

Another question is whether an open session of the House should be truly open, especially at a time when Parliamentary proceedings are being broadcast live. Apparently, no privilege of the Parliament is

being broken when the proceeding are recorded and broadcast. Legally, the proceedings are open and a matter of public record unless the House decides otherwise by rule.

In the present case, the Kerala Assembly has released the printed record to the applicant. This is, in fact, the result of the law on right to information. In the past, the Assembly has refused to provide copy of the proceedings even when questions of natural justice were involved. It sent a notice of breach of privilege over a newspaper report which the complainant (a Minister) had said differed from what was actually said in the House. However, the Legislature Secretariat refused to furnish a copy of the official record for defence.