The Karnataka Legislative Assembly has found two journalists guilty of breach of its privilege and sentenced them to jail. This followed certain articles written by the journalists which were alleged to defame some legislators. This case once again raises the question of what should constitute privilege of the legislative bodies.
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).
The question of privilege
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.
The power of privilege has been used against journalists in several instances. For example, 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 action against The Hindu was taken for three articles that described the Chief Minister’s speeches and used words such as “diatribe” and “high-pitched tone”, and an editorial.
Interestingly, the editorial commented on the privilege motion against the articles and argued that privilege must be invoked “only rarely when there is real obstruction to its functioning, and not in a way that sets legislators above ordinary comment and criticism.” The journalists obtained a stay on the arrest and the matter was referred to the Constitution Bench of the Supreme Court.
Given this history, there are several issues that need resolution. First, what should be the privileges that protect the members of legislatures and the House? How does the privilege power sit with fundamental rights of expression and personal liberty? It is clear that members of legislatures should be able to perform their legislative duties without any obstruction, and should be free to speak and vote without fear of legal repercussions. Should the privilege extend to comments on the individual actions of members?
Perhaps, it is better to restrict the use of privilege to proceedings of the legislature. Any member who is falsely accused of any impropriety can use the defamation route through courts. A further issue is whether the House should have the power to sentence a person to a jail term. While the British Parliament continues to have such powers, it has not used it since 1880.
An even more fundamental question is: what are the privileges? In the absence of a code, how does one know whether an action is a breach of privilege or not? Therefore, it is important to codify them.
In this context, it may be pertinent to note that Australia passed the Parliamentary Privileges Act in 1987. That Act states that “words or acts shall not be taken as an offence against a House by reason only that those words or acts are defamatory or critical of Parliament, a House, a committee or a member”. However, this protection does not apply “for words spoken or acts done in the presence of a House or a committee”.
The Act also prescribes a maximum punishment of one-year imprisonment and a fine of A$5,000. In 1999, a joint committee of the British Parliament recommended codification but this recommendation was overturned by another committee in 2013.
It is evident that the framers of our Constitution envisaged codification of privileges. In the Constituent Assembly, Dr. Rajendra Prasad said, “Parliament will define the powers and privileges, but until Parliament has undertaken the legislation and passes it, the privileges and powers of the House of Commons will apply. 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.”
Parliament has examined the issue of codification. In 2008, the Committee of Privileges of Lok Sabha felt that there was no need for codification. It noted that the House had recommended punishment only five times since the first Lok Sabha, and that allegations of misuse of its powers were due to a lack of understanding of its procedures.
Given the number of such cases, Parliament and Legislative Assemblies should pass laws to codify privilege. It may also be time for the courts to revisit the earlier judgments and find the right balance between fundamental rights of citizens and privilege of the legislature. The recent case in Karnataka gives another opportunity to examine the issue.
M.R. Madhavan is the president and co-founder of PRS Legislative Research
