Both the Legislative Assembly and its Committee on Privileges appear to have “lacked jurisdiction” in law to entertain as well as impose punishment on the editors of two Kannada tabloids as “contents” of the articles published against the MLAs fell under the definition of “defamation” and not under the purview of “breach” of privileges of legislators, according to a cross section of leading legal fraternity in the State.
‘Defamation’
“In substance, the allegations levelled in these articles are defamatory statements made against the legislators. The allegations are nothing to do with functions of MLAs within the Legislative Assembly or its committees. Thus, the offence said to have been committed is defamation,” said former Advocate-General B.V. Acharya.
The articles published in Hai Bengaluru against two MLAs — K.B. Koliwad and B.M. Nagaraj — and the articles published in Yelahanka Voice against MLA S.R. Vishwanath are mainly related to their political personality and alleged conduct like corruption and abuse of power.
When the articles published are not related to their functions in the proceedings of the House, the proper legal remedy for the legislators was a civil suit or a criminal complaint against the editors before the jurisdictional court, and not before the Committee of Privileges, said Mr. Acharya, while pointing out that the Committee of Privileges, in the present case, has “usurped the power, which is exclusively assigned to the judiciary”.
Apex court’s decision
Former Advocate-General Uday Holla pointed out that the Supreme Court, in the case of Ripusudan Dayal vs. State of Madhya Pradesh, in 2014 had made it clear that “privileges do not extend to activities undertaken outside the House on which the legislative provisions would apply without any differentiation”.
Privileges of the legislature/legislators is akin to powers of contempt of court, which is used when judges are prevented from discharging their judicial functions, said Mr. Holla, while pointing out that “breach” of privilege is attracted when proceedings related to the House is obstructed.
‘Failed to define powers’
Additional Solicitor-General of India K.M. Nataraj said that both Parliament and the State legislatures, which should have defined “powers, privileges, and immunities of Parliament/State legislatures and their members” under Articles 105 and 294 of the Constitution respectively had failed to define so during the past six decades.
Though the Constitution empowers Parliament and the State legislature to adopt procedure of House of Commons of Parliament of United Kingdom, the Supreme Court has held that only those procedures that were accepted under Indian Constitution can be adopted, Mr. Nataraj pointed out
‘Nothing but lawlessness’
Ravindra G. Kolle, an advocate and former special counsel of the State, said “only the constitutional courts have powers to sentence a person under respective legislation”.
It would be “travesty of justice” when a person is sentenced to imprisonment without any legislation or lawfully defined procedure but merely based on “undefined privilege” of Parliament or the legislature, when both institutions have failed to exercise the power given to themselves under Articles 105 and 194 of the Constitution. “This situation is nothing but lawlessness,” said Mr. Kolle.
