Privileges vs rights

Josh Chafetzs work, a study of the state of legislative privileges in the West, explodes the false notions that Indian legislators entertain.

FOR all its vaunted activism, the Supreme Court of India seems to be reluctant to disturb the hornets nest in which uncodified privileges of Parliament and State legislatures reside as a looming menace to press freedom.

This is most unfortunate because the menace was born as a direct result of the Courts own erroneous ruling in the case of M.S.M. Sharma vs S.K. Sinha in 1958 that the privileges of Parliament and State legislatures, elected by the people, override the fundamental rights of their masters, the people themselves.

In 1964, the Court gave some redress. It ruled that the fundamental rights to personal liberty (Article 21), to freedom from arbitrary arrest (Article 22), and to move the Supreme Court for the enforcement of the fundamental rights (Article 32) prevail over the privileges. But it studiously refrained from extending the clear logic of this protection to the fundamental right to freedom of speech and expression. That is where the law has precariously stood for 40 years and more.

Putting it tersely, Article 105 (3) of the Constitution said that the powers, privileges and the immunities of each House of Parliament, and of the members and the committees of each House shall be such as may from time to time be defined by Parliament, and, until as defined, shall be those of the House of Commons of the Parliament of the United Kingdom at the commencement of this Constitution. Article 194 (3) provides for the privileges of State legislatures in identical terms.

In 1958, the Court ruled that since the U.K. did not have a written Constitution and the privileges were thus not restricted by it, the same result followed in India. Article 105 (3) contained a mandate to codify the privileges by law. Admittedly, such a law, like any other, would be subject to the fundamental rights as the Court itself ruled.

Thus, as a direct result of the Courts ruling in 1958 a transitory provision would confer greater power on Members of Parliament and Legislative Assemblies than the code they were enjoined to enact.

We need not bother with the cosmetic changes made by the 42nd and 44th Amendments in 1976 and 1979 respectively for they do not alter the obscenity of freezing the privileges of Indias legislature, to those of Britains House of Commons on January 26, 1950.

This situation, made worse by a ruling half a century old, cries for its reversal. Meanwhile, Britain has moved ahead.

Josh Chafetzs erudite work, a study of the state of legislative privileges in the U.K. and the U.S., explodes the false notions that our legislators fondly entertain. It provides a thorough discussion of the law as well as its actual practice, citing all the relevant cases. It covers topics such as free speech in the House, freedom from civil arrest for legislators, and breach of privilege on which American law differs from British law.

Neither House of the British Parliament has imprisoned anyone since 1880. Since the 1950s, the author points out, the power to punish for breach of privilege has been sparingly exercised. He mentions also that a Joint Parliamentary Committee on privilege recommended in 1999 that Parliament codify the law of parliamentary privilege Article 105 of our Constitution was modelled on Section 49 of the Commonwealth of Australia Constitution Act 1900.

But Australia has codified parliamentary privileges. Our legislators adamantly refuse to do so.