Power corrupts; privileged power corrupts absolutely and unabashedly. “Nothing against the State, man must fall down and worship the State” are the two maxims of Fascism, whereas democracy driven by the shaft of Individualism and Liberalism emphasized on the mantra of free speech and expression. “The State is a necessary evil” is what the Anarchist and the Individualist contended. It becomes more of an evil if the people who manage the affairs of the State are evil in themselves. As of now evil prevails everywhere in the parliamentary set- up of Indian democracy .This evil, it seems is duly protected by the uncodified provisions like contempt of court and in Meghalaya the habitual invocation of “breach of privileges” of the legislature. Yes they demand privileges from the red beacons to the institutions.
Parliament privilege has its history in England prior to the final declaration of the Bill of Rights in 1689. That was the period when England was evolving towards democracy and civil rights as against the Divine Rights of Kings, the signing of the Magna Carta, the Petition of Rights, the Habeas Corpus Act 1679,Claims of Right Act 1689 and others. All the above stated developments were targeted against the superior, that is, the Monarch and the Lords and feudal nobles from restraining and interfering with the rights of the Commons. At that point of time it was more than necessary to have provisions of “breach of privilege” so that the evolving British House of Commons can establish and nurture democracy by enabling the members to the House of Commons to freely discuss the affairs of the State, be it political, financial or even matters relating to inheritance of the monarch to the throne. It can be understood that the privileges provisions as existed in the unwritten Constitution of England is to empower the common man against the superior power and not against the inferior.
In Australia the problem arising out of breach of privileges has been addressed with the passage of the “Parliamentary Privileges Act 1987.” The said Act was because of the long drawn out struggle against the incompatibility of the parliamentary privileges as practiced in the U.K which Australia also adopted prior to passing its own Act of 1987. Section 4 of the Act provides that “conducts (including the use of words) does not constitute an offence against the House unless it amounts or is intended or likely to amount to improper interference with the free exercise by a House or its Committees of its authority or functions or with the free performance by members of the House their duties as a member”.
The Act was necessitated by a case which happened in 1955, when the House of Representatives convicted Raymond Edward Fitzpatrick and Frank Courtnee Brown, the proprietor and Editor respectively of the Bankstown Observer, to prison. These men had been responsible for publishing a series of articles which suggested that, before entering parliament, a member of the House had been involved in an immigration racket. The House Committee of Privileges advised that Fitzpatrick and Browne had been guilty of a serious breach of privilege in publishing the articles with the intention to influence and intimidate a member in his conduct in the House and had deliberately attempted to impute corrupt conduct against the member for the express purpose of discrediting and silencing him”. This punishment given by the House of Representative of Australia is understood that a breach of privileges has happened prior to the free deliberation and discussion of a particular issue that a particular member wants to bring into the House but not about the true report as Patricia Mukhim ,Editor of The Shillong Times had done about the post session of the Meghalaya Legislative Assembly; that too about the proceedings in an open session and not the closed door session . Anything which happens in an open session, whether our public representatives are dozing , or discussing their allowances, TA/DA ,which is public money or anything funny stated in the House like the demand for more delicacies in this kitchen or that kitchen is in the public domain. By virtue of an open session, democracy demands that anything which is in the public domain warrants that it be subjected to public criticism either in the affirmative or negative. Any allergic reaction against such criticism presumes that such person (Legislator) has the wisdom greater than king Solomon’s.
So far India has not passed a legislation dealing with Parliamentary Privileges or Breach of such privileges. Art 105 and 194 ( dealing with privileges of parliament and State Legislature respectively) of the constitution and their interpretation and implementation depends on the subjective satisfaction of the House and at times the Party which has a stronger number of members in the House. Hence the accusation of political vendetta in matters pertaining to breach of privileges either against a member or the House as a whole!
Art 105 and 194 of the Constitution deals with the power and privileges and immunities of Parliament /State Legislatures and its members. The Constitution does not exhaustively enumerate the privileges of Indian Parliamentarians. .As Section 3 of both these Articles refer directly to the privileges of the House of Commons at the commencement of the Constitution. Hence it basically deals with all the privileges that exist in the House of Commons. As on January 1950 Parliamentary privileges implied two aspects of privileges, namely the privilege of the House as a whole and privileges of individual members to perform the democratic duties assigned to them. Hence Clause 1, 2 and 3 of both the Articles basically provides for freedom of speech in Parliament, immunity from any legal proceedings in respect of anything said or any vote given in Parliament or any Committee thereof and immunity from legal proceedings with freedom from arrest , in civil cases, 40 days before and after the session. Clause 2 of both the Articles declares that no person shall be liable in respect of the publication by or under the authority of either House of Parliament or State Legislatures respectively, of any report, paper, votes or proceedings. This protection did not extend to publication made by a private person without the authority of the House.
However, the Constitution 44th Amendment Act 1978 has put the immunity for publication on a very sound footing. It has added Article 361-A to the Constitution which provides in Clause (1) “no person shall be liable to any proceedings, civil or criminal in any court in respect of the publication in a news paper of a substantially true report of any proceedings of either House of Parliament or Legislature of States, as the case may be, unless the publication is proved to have been made with malice”. This Clause prohibited publication of any report on any matters which the House has deliberated secretly or held as a closed door session.
The following Case will prove how our honorable legislators have properly utilized the breach of privileges provisions. In P.V .Narasimha Rao versus the State (JMM Bribery Case (V1) the Court held that the privileges and immunity from courts proceedings in Art 105 (2) extends even to bribes taken by members of Parliament for the purpose of voting in a particular manner in Parliament. The majority judges concluded that expression in respect of Art 105 (2) must be given a wide meaning so as to comprehend an act having a nexus or connection with the speech made or a vote given by a member in Parliament or any Committee thereof. So interpreted, it would include within its ambit acceptance of bribe by a member in order to make a speech or to cast his vote in parliament or any committee thereof in a particular manner. Therefore the bribe taking MPs who had voted in parliament against the No-confidence motion were entitled to protection of Art 105(2) and were not answerable in a court of law for alleged conspiracy and agreement. The court further held that the bribe taking MPs who did not vote in the No confidence motion are not entitled the protection under Art 105(2) accessible to the bribe giver MPs.
There are many provisions of the Indian Constitution where implementation is based on the subjective satisfaction of the executive(including the Speaker of Parliament and state legislatures). Breach of privileges provisions as borrowed from the Constitution of UK is rather unfit or needs Indianisation in the sense that in the UK it is the parliament which is supreme. As the saying goes, there is nothing which the English Parliament cannot do except to turn a man into a woman and a woman into a man. But in India the Constitution is supreme. In the absence of codification of majestic powers like the Contempt of Court and Breach of Parliamentary privileges it appears that the incumbents to powerful offices who reign supreme and not the Constitution.
(The author is Lecturer Seng Khasi College Shillong)