FIERCELY ON GUARD Parliamentary privileges need to be reviewed and clarified

By Swapan Dasgupta For the past fortnight, the ‘majesty’ and ‘dignity’ of Parliament have been repeatedly invoked by notables unsettled by the assertion of ‘people’s power’ on the streets of urban India. The agitation led by a septuagenarian Gandhian may have triggered a spontaneous outburst of anger in India’s assertive middle classes, but its insistence on the immediate enactment of a Jan Lokpal Bill has led critics to question the movement’s commitment to parliamentary democracy. Although many of these doubts were expediently brushed under the carpet last Saturday when both Houses of Parliament met and affirmed their commitment to Anna’s three demands, the simmering anger of MPs manifested itself two days later. The immediate provocation was two speeches made to the tricolour-waving audience in Delhi’s Ramlila Maidan by supporters of Anna. The first was a rambling and somewhat inchoate intervention by actor Om Puri. Clearly swayed by the anti-politician mood of the audience, Puri described India’s Parliament as largely made up of “uneducated bumpkins”. The other performance was by former Indian Police Service officer Kiran Bedi who dwelt on the duplicity of politicians in a manner that would have done a professional stand-up comic proud. Both speeches were widely telecast by news channels that had a ball covering the 12 days of street protests. Many MPs, not least those who felt humiliated by the insolence of ordinary people, protested angrily in Parliament. They demanded that Puri and Bedi be charged under powers vested in Parliament by Article 105(3) of the Constitution with breach of privilege—a potentially punishable offence where Parliament is both the accuser and the judge. The issue is before the Lok Sabha Speaker and Rajya Sabha Chairman who may refer the matter to the Privileges Committees of the two Houses. India’s Parliament has been inclined to be rather prickly in its condemnation of individuals who are outspoken in their attack on MPs and their conduct. In 1981, the Times of India was referred to the Privileges Committee for an article in which the author claimed that “Dacoits, smugglers and bootleggers are now honoured members of legislatures.” The publication escaped censure and possible punishment because the Rajya Sabha Chairman cleverly noted that the claim was not a libel of any particular MP or any House but “a libel in gross”. In August 1986, MPs were agitated by the assertion of Acharya Rajneesh (Osho) that “MPs are mentally under-developed. If investigations are made they would be found to have (a) mental age of 14.” The Rajya Sabha Chairman deflected the problem by stating that “It is inconsistent with our dignity to attach any importance to the vituperative outbursts or irresponsible statements of a frustrated person.” God men, he said by way of a parting shot, should leave good men alone. The examples can be multiplied but in most cases they have been resolved by either the accused tendering an unqualified apology or the presiding officer asserting that the House is contemptuous of reckless attacks. Apart from the case involving the Lohia-ite activist Keshav Singh whose jailing by the Uttar Pradesh Assembly in 1964 triggered a clash between the legislature and the judiciary (the matter being resolved by a Presidential reference to the Supreme Court) cases of privilege involving ‘disrespect’ to the legislature have largely been resolved without ugliness. Yet, despite the apologies by offenders and displays of generosity by the presiding officer, Parliament has fiercely guarded its nebulously defined privileges that extend to society at large—as opposed to those privileges and immunities necessary for the smooth internal functioning of both Houses. Article 105(3) stipulated that the special privileges of Parliament shall be defined “by law” and “until so defined” shall be those that prevailed before the enactment of the 44th amendment in 1978. Prior to 1978, it was defined by the precedents set by the House of Commons until 1950. It is revealing that in the past 60 years, Parliament has turned a blind eye to its obligations and not lifted a finger to codify its privileges and immunities into law. When the subject was last debated in 1994, most MPs were opposed to codification. This was in sharp contrast to Canada, Australia and New Zealand—countries that also traced their parliamentary privileges to the Bill of Rights (1689)—that have enacted laws defining parliamentary privilege. In the United Kingdom, a seminal report by a Joint Parliamentary Committee on Parliamentary Privilege, chaired by Lord Nicholls of Birkenhead, has become the de-facto rule book on the subject. The Nicholls Report defined parliamentary privilege as “the rights and immunities which the two Houses of Parliament and their members possess to enable them to carry out their parliamentary functions effectively.” It did not list privileges. Instead, it specified the functions legislative privilege sought to achieve—passing laws, holding the executive accountable and voicing the concerns of ordinary citizens. Protecting the reputation and dignity of Parliament was missing from the list. The Nicholls Report, in fact, suggested doing away with the right of the House to punish non-members. It suggested that disputes could be heard by the High Court under existing laws of libel and defamation. In any case, the last occasion a non-MP was committed by the order of the Commons was in 1880. A possible reason why India’s Parliament has shied away from codifying its privileges and immunities is the fear of judicial scrutiny. In 2005, there was a celebrated case in Canada centred on the arbitrary dismissal of the Speaker’s chauffer. It was claimed that the chauffer was not subject to normal labour laws and his appointment and dismissal was the privilege of Parliament. The Canadian Supreme Court disagreed. It insisted it was necessary to establish “the existence and scope of a category of privilege. Once the category is established, it is for Parliament, not the courts, to determine whether in a particular case the exercise of privilege is necessary or appropriate.” The message was clear: Parliament could not use its privileges and immunities arbitrarily. In a similar vein, the Nicholls Committee made parliamentary privileges subject to a “test of necessity”. Parliament, it noted, “should be vigilant to retain rights and immunities which pass this test, so that it keeps the protection it needs. Parliament should be equally vigorous in discarding rights and immunities not strictly necessary for its effective functioning in today’s conditions.” This expansive liberalism appears to be missing in India. The Rajya Sabha at Work stipulates that “Any investigation outside Parliament of anything that a member says or does in the discharge of his parliamentary duties amounts to serious interference with the member’s freedom of speech in the House. Therefore, to attack a member or to take or even threaten to take any action against him… on account of anything said or any vote given by him on the floor of the House would amount to gross violation of the privileges of a member.” Throughout the fortnight-long Anna stir, many Lok Sabha MPs were heard complaining in private of their inability to return to their constituencies and face irate people. At the same time, they also grudgingly acknowledged that these spontaneously exuberant protests were a facet of a democratic process that can’t be put under wraps in the interregnum between two elections. Tragically, this is precisely what the official guide to MPs privileges prescribes. And it is this mindset of aloofness that explains the strange determination of the Establishment to check dissent using Parliament’s extraordinary extra-judicial powers. Some of these powers are necessary but many are now woefully dated. The Telegraph, September 2, 2011