Privilege unlimited

IN A piquant case of 1966, the Lok Sabha refused to issue a privilege notice to a member who took part in the proceedings of the Maha Moorakh Mandal (Super Stupid Collective). This case illustrates the oceanic expanse of the mischief of the parliamentary privilege jurisdiction.

Constitutional powers are often unlimited in form but limited in practice. The practice is disciplined by conventions. Such practice may or may not have the force of law. Parliamentary government in India is entirely created by conventions. The Judges Cases (1981-1998) used conventions to bestow on judicial collegiums decisive powers over higher judicial appointments. The higher judiciary has massive contempt powers. Controversial exercise of these powers led to a bill before Parliament to control the judicial contempt power. Parliament's contempt power to punish for transgression of its privileges is even wider. It is inadequately disciplined by conventions. If conventions fail, who will protect the people from their representatives?

The Constitution of 1950 gives legislatures (i) virtually unlimited speech powers, (ii) immunity from anything said and done or spoken in legislative proceedings, including, after the Supreme Court's decision in the Jharkhand MPs' case (1998), for accepting bribes for voting, (iii) such privileges as those in 1976. The third category of privileges theoretically includes unlimited, uncodified privileges. Faced with a privilege case, courts do not interfere; and, in any event, do not sit in judgment over any irregularity where the legislature exercises this awesome power ignoring even its own procedure. Parliament must have internal autonomy over its own proceedings, protect its own free speech and possess the power to discipline members and others who directly interfere with its working.

The problem arises when legislatures act arbitrarily against outsiders, including the Press and other media, who criticise what is said and done in the legislatures. Scenes such as those in the Uttar Pradesh Assembly and other legislatures, where microphones were thrown about, are painful testimony to what actually takes place. No sane public can ignore what happens in India's legislatures. Responsible media or Press cannot but discuss and comment on these legislative happenings.

The fight between India's legislatures and her people has been unequal. In the Blitz case (1954), the Supreme Court injuncted the arrest of Homi Mistry because constitutional due process was violated. But in the Searchlight case (1959-60) dealing with a newspaper that published expunged material, free speech was subordinated to the privilege power over the powerful dissent of Justice Subba Rao. Dark clouds were on the horizon. In the Uttar Pradesh crisis case (1963-64), the State's legislature summoned lawyers and High Court judges for interfering with its privilege power. The full High Court responded to restrain the legislature's order. The Supreme Court's advisory opinion continued to subordinate `free speech' to the privilege power but insisted that the `due process' (Article 21) rights were available to defend fundamental rights against excessive or illegal onslaughts by legislatures. But this `harmonious' compromise left the legislatures free to exercise their `known' privileges according to their `due process' (whatever the phrases might mean), including the power to summon people, reprimand them or send them to jail.

Our present day concerns are over a very narrow area. Sensitive to criticism, Chief Ministers, Ministers, MPs and MLAs often petition for privileges to summon editors, journalists and others who criticise them. This is a terrible power. The process is the punishment. These are not like the probes of the American Congress on Communists, Watergate, Iran, Whitewater or President Bill Clinton. The investigative powers of any democratic legislature needs to be preserved — but kept under judicial surveillance even if the U.S. Supreme Court did not adequately protect communists from oppression in questionable cases in 1957-1961. But the posture of American courts has been to assert that "(a)buses of the investigative process may imperceptivity lead to abridgement of protected freedoms."

India's present controversies are not about the Legislature's investigative or other powers but about protecting Chief Ministers, Governments, MPs and MLAs from strong, critical comments by threatening those who speak up with punishment. The privilege power is more arbitrary than the criminal defamation power, which has also been used by the Tamil Nadu Government in an attempt to silence the media. The invocation of the privilege power is wayward, its exercise arbitrary, its processes humiliating and the punishment often onerous.

The sample of `privilege' cases against the media is enormous. Many cases, including those against the Blitz (1961), The Indian Express (1964), The Times of India (1965), The Statesman, Hindustan (1973), the Hindustan Times (1979), the Hind Samachar (1980), All India Radio (1980) and many others were about wrongful reporting. A via media was found. The media apologises for its bona fide error and offers to publish a correction and an apology. This was a good solution — even for trivial cases, which should not have been raised. But serious questions arise when the legislature reacts to bona fide criticism to punish democratic remonstrance with imprisonment.

A benign view — following the House of Commons in the Daily Mail case — was taken by Indian legislatures in the Dina (1958) and the Nav Bharat (1957) cases to generally recognise the media's right to criticise and comment. Consistent with the benign view, in many cases, such as the Malayala Manorama (1966), The Statesman (1966), and the Aina (1966) cases, the legislature found no breach in critical cases. In some cases [such as Mathai's case (1959)] the legislature found a technical breach but refused to go further. In some cases of gross breach of privilege, such as, Ramgopal Gupta's case (1966), an apology was accepted. In the Indian Express case (1967), the paper was warned that it should be more objective.

In some cases, such as The Times of India (1981) or the Printed Pamphlet case (1960), the House took the view that a privilege determination was beneath its notice and that the House would `consult its own dignity'. At times, the House felt that to proceed further would give unwarranted publicity to the newspaper. These are all arrangements that leave a democratic play in the joints.

But there is a disturbing trend from which some legislatures have not been immune. The Tamil Nadu Legislature punished A. Paulraj, editor of Vaniga Ottruma, in 1985 by imprisonment for making derogatory comments about its members. In 1987, S. Balasubramanian, editor of Ananda Vikatan was sentenced to rigorous imprisonment for what the legislative felt was a derogatory cartoon. [In a 1994 judgment, a full bench of the Madras High Court ruled that there had been a gross violation of law as well as the principles of natural justice in the punishment handed out by the Speaker in this case. The Court even ordered a token monetary compensation of Rs. 1000 to be paid to Mr. Balasubramanian.] In 1992, arrest warrants were issued by the same legislature to K.P. Sunil of the Illustrated Weekly of India. The Supreme Court issued notice and referred the whole issue to a Constitutional Bench in 1997. Meanwhile, the Speaker dropped the proceedings. The Tamil Nadu Legislature's proceedings and sentencing of the journalists of The Hindu and Murasoli in 2003 to 15 days' simple imprisonment in response to what appears to be bona fide criticism of the legislatures have been injuncted and are before the Supreme Court.

Unwarranted procedures, intimidation of the media and the unjustifiable imprisonment are issues that can no longer be left in the air. One, now dated, American solution of 1857 was to pass on the breach of cases to be judged as misdemeanours by federal grand juries. In 1967, the House of Commons in England expressed concern about arbitrary procedures followed in privilege cases. But more significantly, the Lord Nicholls Joint Committee of 1997-99 for both the Houses of Parliament recommended that the Legislature's power to imprison for contempt be abolished and its penal powers transferred to courts while retaining the power to fine (which is also undesirable). The world has moved on from empowering over-sensitive legislatures, controlled by majoritarian parties exercising medieval and archaic powers, over the personal liberties of citizens. The power to fine or imprison for breach of privilege should be abolished.

If Indians and their media cannot criticise their rulers in the legislatures, who will? The use of parliamentary privilege to silence and imprison criticism is archaic, undesirable and undemocratic. The Supreme Court needs to re-examine the constitutional framework. On the right track in 1954, it needs to rework India's democratic imperatives to prevent legislative dictatorship. The privileges themselves need codification. Only a court, not legislature, should possess the powers to imprison for contempt outside the House.