Patricia Mukhim
Meghalaya is one state where legislative privileges are over-stretched. Legislative Privilege in its wider interpretation refers to the right of the member of a legislature to speak freely in the House, without fear of being sued for slander. This privilege protects any statement made in a legislature an MLA or any paper published on this count as part of legislative business. In Meghalaya, MLAs seem to have taken this privilege to a new level. This is because legislative privileges have not been clearly defined and challenged in a court of law. The irony further is that legislators in this country arbitrarily decide what their privileges are, what constitutes their breach, and what punishment is to be awarded in case of breach. This almost gives the legislators overreaching powers to even claim immunity from laws applied to other citizens. This brings to the fore the question as to whether legislators are above the Constitution.
It is intuitive that the Constitution of India was itself crafted in a hurry at a time when so little was understood about the diversity of India and its cultures and religion. Moreover, the Constitution was not created from scratch based on the larger understanding of the complexities of Indian society. The bulk of the principles in the Constitution were copy-pasted from the Government of India Act of 1935 which was enacted by the British – a colonial power to enable them to rule over India, its colony. Naturally so many of the principles such as the creation of a civil service such as it operates today is a misfit for the society. In India power does not vest with the people. We are largely enslaved to politicians and civil servants. They believe they should enjoy separate rights and privileges than the ordinary Indian citizen.
If the Indian Constitution was created after due diligence and tailored to suit the Indian psyche it would not have needed so many amendments in so many years. The Indian Constitution has been amended 103 times up to March 2019 which is India’s 74th year of existence. The Constitution of the United States of America on the other hand has only 27 amendments in 200 years. When the Constitution attained 50 years of age in the year 2000 a Committee headed by late PA Sangma the then Speaker was formed to revisit the Constitution and suggest modifications. The Committee came up with a book but no serious note has been taken about changing some of the troubling sections of the Constitution which includes among other things the rights and privileges of legislators – something that the UK and USA have reformed. Dr BR Ambedkar had himself expressed concern about the Indian Constitution and politics. In Dr Ambedkar’s own words, “However good a Constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot.” It was not easy to write a Constitution to guide the fortunes of a newly independent nation but Dr Ambedkar and his team did their best knowing full well that despite the hard work and dedication that has gone into the making of the Constitution, it will fail to deliver if the people are not vigilant and question its wrong application.
It is indeed a travesty that the framers of the Constitution, who, credit themselves with drafting the lengthiest constitution of the world have left the vital area of legislative privileges undefined. This has led to legislators defining those privileges according to their whims and fancies. Articles 105 and 194 clearly lay down that the “power, privileges and immunities of the legislature shall be as may from time to time be defined by the legislature, and until so defined, shall be those of the House of Commons”. In India we have taken the expression “until so defined” in an ambiguous manner. Legislators resist clear definitions because it serves their interests. In fact, we have heard it being discussed many a time that any attempt to codify those privileges would be a reading down of their privileges and dilute the sovereignty of parliament and legislatures. In an article captioned, “Bring the House up to date (The Hindu, July 17, 2017) Faizan Mustafa questions, “Is Indian Parliament really sovereign? We want a uniform civil code but our parliamentarians do not want a codification of their privileges which will not require more than a couple of articles.
Another error of the drafters of the Indian Constitution is to place the Indian Parliament on the same footing the British House of Commons. The British Parliament could not by any stretch of imagination be equated with Indian Parliament because up until 2009, its Parliament was also its highest court. The Indian legislature and British Parliament have a major difference in that in the UK the British Parliament overrides all other institutions whereas in India it is the Constitution which is supreme. That this basic difference was watered down by the legal luminaries of the time has brought us to a point where elected MLAs and MPs claim legislative privileges even in areas that they should not be doing so – in the present case the use of tinted glasses on their vehicles which the Supreme Court of the country had struck down except in very rare cases and as a matter of security of the claimant to those special privileges.
Faizan Mustafa argues that MLAs and MPs resist the codification of privileges because it would make the privileges subject to fundamental rights and hence to judicial scrutiny and evolution of new privileges would not be possible. The irony is that the once powerful British Parliament has itself broken from tradition whereby any action or utterances which are defamatory of Parliament or its members are no longer treated as privilege questions. In the US the House of Representatives has been working without any penal powers (privileges motions) for well over two centuries. Australia has codified the privileges of elected parliamentarians and legislators since 1987.
The fact that In Meghalaya a police official is being summoned by the Privileges Committee of the Assembly for carrying out his duty which is to check all vehicles with tinted glasses and having them removed is a case of legislative overreach. What’s considered a law in public interest needs to be respected by all and legislators should have been the first to respect that law instead of demanding immunity from it. The question to ask here is (a) why does the MLA require special privileges by way of tinted glasses in his vehicle? (b) Is there a threat perception to his life and limb which requires that he go around without being seen, after he is elected MLA, when before elections all candidates drive around with their windows down, so the voters can see them? (c) Why do MLAs/ministers not want people to see them? What are they hiding from? (d) Was the police officer wrong in implementing Supreme Court orders? (e) If a police officer is doing his duty as per law then how does the Constitution allow him to be hauled up before another force of the same Constitution? Isn’t this a clash of interest? (f) Is it not time for the courts to step in and insist that legislative privileges be defined?
In this country we need a second Constitution Review Commission because the first one headed by Justice M.N. Venkatachaliah which had recommended that privileges should be defined and delimited for the free and independent functioning of the legislatures has not been acted upon as yet. As citizens we all need to know what constitutes breach of legislative privileges in a free and independent India.