Editorials/Opinions Analyses for UPSC – 31 July 2021

Content:

• Editorial: Law and lawmakers

Law and lawmakers

Context

• The LDF government in Kerala has suffered a setback as it strongly favoured the withdrawal of cases against six members sought to be prosecuted for creating a ruckus in the Assembly on March 13, 2015, when they boisterously tried to interrupt the presentation of the Budget presented by the erstwhile UDF regime.

Relevance:

• GS Paper 2: Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers & Privileges and Issues Arising out of these.

Mains Questions:

1. Enumerate important privileges enjoyed by each House of Parliament collectively and its members individually and also discuss their significance. 10 Marks
2. Legislative privilege and parliamentary free speech are necessary elements of a lawmaker’s freedom to function, but it is difficult to disagree with the Court’s conclusion that an alleged act of destroying public property within the House cannot be considered “essential” for their legislative functions. Discuss. 15 Marks

Dimensions of the Article:

• The Supreme Court Observation Regarding Parliamentary Privileges
• Concept of privileges
• Types of Parliamentary Privileges
• Significance of Parliamentary Privileges
• Challenges with respect to privileges
• Way Forward

The Supreme Court Observation Regarding Parliamentary Privileges

The Supreme Court ruling that legislative privilege cannot be extended to provide legal immunity to criminal acts committed by lawmakers ought to be welcomed for two reasons.

1. It lays down that legislators charged with unruly behaviour that results in offences under penal laws cannot be protected either by their privilege or their free speech rights.
2. Second, the decision revivifies the law relating to a prosecutor’s role in withdrawing an ongoing criminal case.

Concept of privileges

• The Constitution (under Art. 105 for Parliament, its members & committees /Art. 194 for State Legislature, its members & committees) confers certain privileges on legislative institutions and their members to:
  • Protect freedom of speech and expression in the House and insulates them against litigation over matters that occur in these houses
  • Protect against any libel through speeches, printing or publishing
  • Ensure their functioning without undue influence, pressure or coercion
  • Ensure sovereignty of Parliament
• Currently, there is no law that codifies all the privileges of the legislators in India.
• Privileges are based on five sources:
  • Constitutional provisions
  • Various laws of parliament
  • Rules of both the houses
  • Parliamentary conventions
  • Judicial interpretations
• Whenever any of these rights and immunities is disregarded, the offence is called a breach of privilege and is punishable under law of Parliament.
• However, there are no objective guidelines on what constitutes breach of privilege and what punishment it entails.

Types of Parliamentary Privileges

Privileges of the House collectively:

• Debates and proceedings: Right to publish debates and proceedings and the right to restrain publication by others. However true reports of parliamentary proceedings can be published by press.
• Secret Sitting: Right to exclude strangers from its proceedings and hold secret sittings.
• Right to regulate internal affairs of the House and to decide matters arising within its walls:
  • Regulate its own procedure and conduct of business and to adjudicate upon such matters.
  • No person can be arrested, and no legal process (civil or criminal) can be served within the precincts of the House without the permission of the presiding officer.
  • The courts are prohibited to inquire into the proceedings of a House or its committees.
  • House receives immediate information of the arrest, detention, conviction, imprisonment and release of its member.
• Right to punish members and outsiders for breach of its privileges by reprimand, admonition or imprisonment (also suspension or expulsion in case of members).

Privileges enjoyed by the members individually:

• Complete Freedom of speech for anything said or any vote given by him/her in Parliament or its committees.
• Freedom from arrest in civil cases during the session of parliament and 40 days before the beginning and 40 days after the end of a session.
• Freedom to refuse to provide evidence or be a witness in a case pending in a court when parliament is in session.

Significance of Parliamentary Privileges

• Enables free and fair discussion by enabling the members to speak out their mind and expressing their views in the House without any fear.
• Prevents willful misrepresentation of debates or premature publication of proceedings.
• Internal autonomy serves as a natural corollary of the immunity from proceedings in a court of law in respect of anything said or done inside the House.
• Prevents obstruction to members from attending their parliamentary duty (in case of arrest).
• Ensures that the attendance of a member in the House takes precedence over all other obligations such as being a jury/witness to a case.

Challenges with respect to privileges

• Against ‘Constitutionalism’ or doctrine of limited powers: Absence of codified privileges gives unbridled power to house to decide when and how breach of privilege occurs.
• Discredits separation of powers, as speaker acts as complainant, advocate and the judge.
• Penal action in cases of breach of privileges unwarranted, unless there is an attempt to obstruct the functioning of the house or its members.
• Must only be invoked by legislature when there is “real obstruction to its functioning”. Breach of privilege invoked for genuine criticism of members of the house or due to political vendetta, reduces accountability of elected representatives.
• Invoked on grounds of defamation by individual members, while judicial remedy available under defamation and libel law.

Way Forward

• Constituent Assembly envisaged the system of uncodified privileges based on British House of Commons, as only temporary. Therefore, there is a need for proper codification of privileges. E.g. Australia passed Parliamentary Privileges Act in 1987, clearly defining privileges, the conditions of their breach and consequent penalties.
• Legislative privilege and parliamentary free speech are necessary elements of a lawmaker’s freedom to function, but it is difficult to disagree with the Court’s conclusion that an alleged act of destroying public property within the House cannot be considered “essential” for their legislative functions.