By Aristotle Lyngdoh
Recently we have witnessed some sort of legislative activism against those who are discharging their duties but somehow landed into a conflict and confrontation due to differences of interests and objectives. It can also be anybody who feels the need to express their concern or does something they presumably thought will bring doubtful things into light. But instead they have to face the wrath of the jury due to their genuine concern. It is ironic on one hand to see that swift action and judgment is being taken if a legislator is aggrieved by some statement or action. But a Shiv Sena MP is proud of his actions when he physically assaults an elderly official of Air India just because of the seating arrangement within the flight. But justice in this regard will have to follow due procedure in the long process of time. There are numbers of such cases committed by parliamentarians and state legislators which is abusive and emotionally fatal. In such cases what is happening is a simple compromise sufficient to bury and settle the hatchet either willingly or unwillingly by the victim. But in reality, an offence has been committed and damage is done. Therefore, justice somehow should be administered. Then only the meaning of democracy is made complete.
I fully endorse and subscribe that legislators are our elected members and should be respected in true spirit and honour. They have the privileges guaranteed by the Constitution (in Article 105 &194) for the purpose of conducting the business of the house in supreme sovereignty and order for the interests of the people of the country and the state. On the other hand, the same Constitution guarantees the citizens the fundamental rights and one of these is the freedom of speech and expression in Article 19 (1) (a). It seems that these two are in conflict if a balance is not struck somewhere. The former is merely a privilege granted to the elected members and not a right. But as citizens of the country we have every right to claim and exercise these fundamental rights. Therefore, as already mentioned above, elected legislators demand full respect and honour, but the point is whether that respect is deserved. In fact it is neither enforceable nor through coercion. As legislators they should command the respect of the public and this is derived from the character and quality that emanates from the person himself/herself. The attitude, behavior and integrity of a person are the qualifications that will define his/her action as well as the reaction from others.
Further, Article 21 grants a citizen another security when it says that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. To resolve the conflict between these constitutional provisions, Dr. Madhusudhana Rao suggested that the Rule of Harmonious Construction must be applied. The question whether Fundamental rights control the privileges or not was considered by the Supreme Court. But i strongly believe that the quality of a person is a medium and a point of balance where those who enjoy the privileges and the rights can confront one another in a healthy manner without prejudice and enmity. It is important therefore to understand the basis and foundation upon which these privileges stand. In 1978 the meaning of ‘Procedure established by law’ was interpreted by the Apex Court as containing ‘fair, just and reasonable’ procedure but not any type of procedure. The scope of Article 21 was further enhanced by the emergence of human rights jurisprudence.
In one of the writings, ‘Parliamentary Privileges and immunities in Indian Constitution’ by Kamal Rana on Sept 22, 2014, he has this to say, “parliamentary privilege is the sum of peculiar rights enjoyed by each House (the Lok Sabha or the Rajya Sabha) collectively as constituent part of Parliament, and by members of each House individually without which it would be impossible for either House to maintain its independence of action. Privileges may be classified into two groups: Privileges that are enjoyed by the members individually and Privileges that belong to each House (Lok Sabha or Rajya Sabha) of Parliament collectively. We are to note that our Parliament has not yet codified its privileges. In fact, the privileges rest on conventions and they may be ascertained by the practice and law that is in force In England”. This implies that the Forty-fourth Amendment which has substituted the words “shall be those of the House of Commons of the Parliament of the United Kingdom” has not yet been codified. Or if there is any sort of codification, the scope of conflict between constitutional provisions should be clearly avoided.
The privileges enjoyed by members individually include freedom of speech, freedom from arrest and exemption from attendance as jurors and witnesses. The Privileges that belongs to the House are on matters relating to the publishing of the debates and proceeding of the House, The right to exclude strangers from the galleries, the right to punish members and outsiders for breach of its privileges. When a member of the House is involved in parliamentary misbehavior or commits contempt he can be expelled from the House and the right to regulate the internal affairs of the House lies with the Speaker. Even though in England members have privileges and immunities but that does not mean they are no longer immune from all civil actions.
Another interesting fact extracted from Supreme Court Cases commonly available in the website and very much relevant is that every democratic written Constitution is based on the theory of limited government which emphasizes that the powers of various organs of the Government are limited by the Constitution. And to keep various organs within the bounds, the Constitution vested powers in the judiciary. The Courts apply the “rule of law” values in preventing the Government from abusing the powers conferred on it by various laws. As a result of this, the traditional executive privileges have been diluted to a large extent. In India, the scope of the defence of sovereign immunity was reduced in favour of the individual.
At one point of time, in England the House of Commons was considered as the highest court of justice and regarded as a superior court of record. On 30 July 2009 the function of the House of Lords and its role as final and highest court of appeals has ended. From 1 October 2009, the Supreme Court of the United Kingdom has assumed jurisdiction on points of law for all civil law cases in the UK. Therefore, in a modern democratic society, a noble environment should be nurtured and promoted especially among the organs of this democracy. This can only happen if mutual respect and healthy confrontation is adopted side by side in the process of discharging duties and this clearly rests in the attitude of the individuals. Legislators are elected for the interests of the individual public and not to make laws for the interest of law makers only. Therefore, the wisdom of a democracy lies in the wisdom of the people on how they choose their legislators. If people are self-conscious and self-centered, then we have no other option but to face tyranny.