A CRITIQUE OF THE PARLIAMENTARY PRIVILEGE TO PUNISH CONTEMPT OF THE HOUSE
Author: Pandit Aradhana Swanand, III year of B.A.,LL.B(Hons) from School of Law, CHRIST (Deemed to be University).
Parliamentary privileges refer to the collection of rights and immunities enjoyed by members of the Parliament individually and collectively, and enable them to discharge their duties and functions as entrusted by the Constitution without any impediments.
Parliamentary privilege is provided for under Articles 105 and 194 of the Constitution of India and is to be derived from the conventions of the British Parliament. Article 105(3) empowers the Parliament to define its powers, immunities and privileges, however no such codification has been made so far.
Privileges enjoyed by Members individually include freedom from arrest, freedom from appearing as a witness or juror, and the freedom of speech and the privileges enjoyed collectively by each House include the right to publish its proceedings and debates, restrict publication of its proceedings and debates by others, regulate its internal affairs, and punish both Members and outsiders for contempt of the House or breach of privilege.
Breach of privilege or contempt of Parliament refers to any act or omission which obstructs or impedes either the House of Parliament or a member or officer of a House in the performance of its functions or discharge of duties respectively, or tends to directly or indirectly cause such an impediment or obstruction. The grounds amounting to contempt have not been codified and an act that falls within the purview of the aforementioned definition amounts to contempt, regardless of a lack of precedent to such an offence.
This Parliamentary privilege has been a subject of debate as the lack of codification awards the parliament with broad powers to inflict punishment for contempt, allows the House making the allegation to be a judge in its own cause, does not allow for appeal or judicial review except in cases of arbitrary exercise of powers.
This paper outlines the legal provisions concerning the breach of parliamentary privilege and contempt of the House. It then analyses the manner in which it violates the Constitution, the Rule of Law and the Principles of Natural Justice. Finally, it seeks to provide suggestions with regard to codification and removal of penal punishment.
The powers and privileges of the Parliament have not been codified and, therefore, are the same as that of the House of Commons in the United Kingdom. The House has the power to enforce its privilege and punish anyone, whether a member or stranger, for its infringement. This power is two-fold—the House can punish for a breach of privilege as well as contempt. Breach of privilege occurs when a specific privilege has been infringed, whereas contempt of the House occurs when the actions of the contemptor are against the authority and dignity of the House.
Some identified acts of breach and contempt include misconduct by strangers in the presence of either House, acceptance of bribes or professional fees by Members for any parliamentary matter, publication of untrue or warped reports of any debate, bribery of a Member, assault of a Member while they are going to or from the House, disobedience of the rules of the House, etc. The manner in which precedents of the United Kingdom may be adopted in India has been outlined in the Keshav Singh case.
The Court held that only those privileges that the House of Commons enjoys as a House of Parliament and not as a High Court of Parliament, which are suitable for India, without any subsequent additions or modifications and compatible with the Constitution and constitutional system, are to be adopted.
The manner in which this privilege may be enforced is provided for under the Rules of Procedure and Conduct of Business of both Houses. Each House appoints a Committee of Privileges—the Lok Sabha Committee comprises 15 members who are nominated by the Speaker and the Rajya Sabha Committee comprises 10 members who are nominated by the Chairman. In the event of a breach, either the Speaker or Chairman can make a suo moto reference to the Committee or a motion may be called for by a Member of the House with the consent of the Speaker.
The Committee then determines whether a breach has been committed and may even call for oral and documentary evidence, after which it can take action. The punishment for a breach can be imprisonment, prosecution, fines, and, in case of an offence by a Member of the House, suspension or expulsion. In cases of unintentional breach, the House may merely reprimand the offender and accept an apology. Imprisonment can extend upto the period of prorogation of the House.
The right of the Houses of Parliament to punish an act that interferes with the performance of its functions and duties is undefined and extensive and poses certain constitutional challenges.
The exercise of this power often conflicts with the fundamental rights guaranteed under Part III of the Constitution, Article 19(1)(a) in particular. Article 19(1)(a) guarantees to every citizen the freedom of speech and expression, and this right extends to the press and media. There have been numerous occasions where journalists and media houses have been held in contempt for publishing certain opinions or commentaries of the House and its Members.
In the case of M.S.M. Sharma v. Krishna Sinha (‘Searchlight case’) the editor of the Searchlight newspaper was held to be in contempt for publishing expunged proceedings of the Bihar Legislative Assembly. He claimed his right under Article 19(1)(a) but the Court held that in the case of a conflict between parliamentary privileges and fundamental rights, the former would prevail, and parliamentary privileges are separate provisions derived from the House of Commons and are not subject to Part III of the Constitution.
Additionally, the Court also held that an appeal or judicial review could not be sought against an order of the Committee under Article 105 or 194. Not subjecting parliamentary provisions to constitutional safeguards would result in an autocratic regime and, therefore, subsequently in the Keshav Singh case, it was held that parliamentary privileges were to be subjected to Article 20, 21, 22 and 32.
The Court stated that in the event of a conflict between fundamental rights and parliamentary privileges, a harmonious construction should be adopted. However, it also stated that parliamentary privileges were not fettered by Article 19(1)(a), making freedom of speech and press subordinate to the Parliament’s whim.
The procedure followed in matters of breach of privilege is also violative of the principles of natural justice. Article 122 states that a Parliamentary proceeding cannot be reviewed by Courts on grounds of irregularity. The Parliament reserves the right to determine on its own what amounts to a breach or contempt, conduct its investigation and pass its verdict in accordance with constitutional provisions.
However, the provision of a Privilege Committee comprising the members of the very House whose privilege has been breached amounts to a violation of the principles of natural justice, a vital part of which is the principle of nemo judex in causa sua, i.e., no one should be a judge in his or her own cause. There is also no provision for appeal against the decision of the Committee and judicial review is exercised only if it can be shown that there was an arbitrary exercise of powers.
Another matter of concern is the power of the Parliament to expel Members in the event of a breach or contempt. In the case of Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, an expulsion was challenged, but the Court held that a privilege to punish contempt includes within its ambit a privilege to expel members, provided that the privilege is exercised in accordance with constitutional provisions.
However, the case set a dangerous precedent because a wide power to expel membership from a House can be conveniently misused against members of the opposition. Since the majority party or coalition will comprise the Privilege Committee, they will be judges in their own cause and exercise an autocratic and un-democratic hold on the Parliament.
The power to punish the breach of parliamentary privilege or contempt of the House is often referred to as the keystone of privileges because it reinforces the dignity and authority of the Parliament.
However, the Parliament has refrained from codifying these powers out of fear that codification will curtail them, as observed by the Conference of Presiding Officers in 1949 and 1960. This apprehension, coupled with the prioritisation of Parliamentary privileges over fundamental rights by the Supreme Court itself, has resulted in the Parliament possessing extremely wide powers to punish contempt, leaving ample room for abuse.
The power to punish for a breach of privilege is violative of the principles of natural justice, as it allows the House to be a judge in its own cause. The House can also prescribe a punishment as severe as imprisonment, and no appeal can be proferred against such a verdict. Judicial review, which is part of the basic structure of our constitution, cannot be exercised unless there is manifest arbitrariness by violation of Article 20, 21 or 22.
However, in respect of any other fundamental right, including the freedom of speech and expression, the parliamentary privilege will prevail. In a democracy, the freedom of the press is the most vital liberty. Elected representatives are subjects of public criticism and cannot misuse their privilege to curtail such criticism by punishing for contempt. The Parliament has to be subjected to the Rule of Law, and it cannot be allowed to determine, without any guidelines, what obstructs its functioning or is against its dignity and authority.
The conventions of the British Parliament cannot be relied upon as there are crucial and significant differences in the English and Indian system—the British constitution provides for Parliamentary supremacy whereas in India, we have constitutional supremacy. We have a written constitution that expressly outlines the limitations on the powers of the Government. These limitations have to be incorporated in a codified law because the manner in which parliamentary privilege is exercised today is arbitrary and archaic.
Article 105, which empowers the Parliament to codify its privileges, is transitional, and the Constituent Assembly envisioned that a Statute in furtherance of the same would be enacted in due course. Various Committees and judgements have suggested that the Parliament codify its privileges to prevent uncertainty and misuse. Codification will resolve ambiguities and restrict the exercise of power, ensuring that the Legislature is subordinate to the law.