Need For Judicial In-roads Into Parliamentary Privileges

Baglekar Akash Kumar writes

A staggering number of legislations, approximately around 50, being passed by the Parliament during the first year of the second term by Mr. Narendra Modi’s Government at Centre got a roadblock in form of COVID-19 pandemic.

Amid this busy work of passing laws, both the Lok Sabha and Rajya Sabha also saw exchange of bitter words from members of both treasury and opposition benches, where even the Prime Minister of India, the post to which Constitution gave lot of responsibility with dignity, was also abused with derogatory remarks. It seemed like the Members of the House didn’t come out of the election mood, held in summer of 2019, where criticism of each other went to a very ‘neech’ level.

During the monsoon session in 2019, in the Lok Sabha, one of the Member of Samajwadi Party made ‘sexist remarks’ against the woman member of the BJP party, who was presiding over the Chair of Lok Sabha.

This remarks made by the member against the woman was condemned by all the members of the House, cutting across their party lines, but, unfortunately the same House which passed the ‘Prevention of women from sexual harassment at workplace Act, 2013’ cannot take any action against the M.P. for his ‘sexist remarks’ under the said law, because of the privilege enjoyed by Member for making any kind of statements in the House.

In view of above, the question arises whether the legislators are liable for making such derogatory remarks against each other or anyone in the House? The author through this article objectively analyzes how the law-makers enjoy certain immunities inside the Parliament or the State Legislature, and how certain members have misused the privilege.

LAW

Articles – 105 & 194 of the Constitution of India, 1950, assures ‘Freedom of Speech’ in Parliament or the State Legislature to every member of the respective House. Along with this freedom, it also gives the law-maker, the privilege that they will be not liable in any Court for anything said or any vote given by him during the proceedings of Parliament or State Legislature. Indeed, Parliamentary Privileges is the only area where the Judiciary has not played its ‘Activist’ role in the seventy years history of the Constitutional India.

The ‘Freedom of Speech’ granted to the legislators in the House is different from ‘Freedom of Speech’ granted to the Citizens under Article – 19(1)(a) of the Indian Constitution, as the latter one is a Fundamental Right guaranteed to every citizen and is enforceable in a court of law and it can be exercised anywhere by citizen within India and also it comes with certain reasonable restrictions. Whereas, the Freedom guaranteed to a Member is confined within four walls of Parliament and its enforcement lies exclusively in hands of the Speaker or other presiding officer of the House and also there are no restrictions on the Members.  

Parliamentary privilege is the part of “law and custom of Parliament”, which is treated as an essential requisite for a free, frank and fearless discussion in Parliament  and its origin into our Constitution can be traced from enactment of ‘Bill of Rights’ in England in 1668.

The privilege enjoyed by the Member in House is so powerful that a citizen or a community who regard themselves as been defamed by his representative’s speech during the proceedings of a House have no legal remedy against him. It becomes pertinent to mention that in March, 1969, at the World Hindu Religious Conference held at Patna, Jagadguru Shankaracharya made certain remarks concerning untouchability. On April 2, 1969, a discussion took place in Lok Sabha in which certain derogatory words were spoken against Shankaracharya. Then his disciples filed a suit of defamation against six members of the House. When the matter reached the Hon’ble Supreme Court in Tej Kiran Jain v. Sanjiva Reddy, AIR 1970 SC 1573, dismissing the appeal, the Apex court held that – “Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any court”.

In another interesting but peculiar case, which is reported as P.V. Narashima Rao v. State/CBI, AIR 1998 SC 2120, the then Prime Minister of India – Mr. P.V. Narashima Rao’s government didn’t enjoy majority in Lok Sabha in 1993. Hence, a vote of no-confidence was moved against his Government by the opposition parties. To avert a defeat on the floor of the House, there were allegations that certain members of ruling party gave large sums of money to a few members of a small party. Consequently, the no-confidence motion was defeated by a very thin majority in the House with 251 members for and 265 members against the motion. Subsequently, a case for accepting bribe was filed against the members under the ‘Prevention of Corruption Act, 1988. When the matter reached the Supreme Court, the majority judgement held that “the Members enjoy the immunity from any civil or criminal proceedings under Article – 105(2) of the Constitution even though they took bribe to vote in the House.”

But the Minority Judges have argued that – “the criminal liability incurred by a Member of Parliament who has accepted bribe for giving vote arises independently, hence they are to be punished”.

In view of the author, minority judgement is preferable to the majority view as firstly, the bribe was given outside the House and that doesn’t falls under immunity and they could had been prosecuted under provisions of Prevention of Corruption Act, 1998 and Secondly, this may open the gate for corruption and it is a travesty of free vote when a member casts a vote after accepting the money because nothing which promotes corruption in any sphere of life ought to be given constitutional protection. Third and most serious concern is that the partisan attitude of the Presiding officer in leaning towards the ruling dispensation.

By taking into consideration the changing and demanding needs of the time, the author suggests that there is need for Judiciary to make inroads in such serious cases of corruption and uphold Constitutional morality in this ‘Transformative Constitutional’ era.

Further, all the legislators must take a leaf out of the book of Telangana Legislative Nominated Member – Elvis Stephenson, who was tried to bribe during Legislative Council elections in 2015. But, he refused the bribe and instead reported the master to police laying down a good precedent for moral politics in India.

Author info:

Akash is from ( University College of Law, Osmania University, Hyderabad)

(Email : akashbaglekar@gmail.com)