Finding a balance between parliamentary privileges and fundamental rights Context
- In Indian parliamentary democracy, Parliament enjoys almost supreme powers where legislators face no peril from the government.
- As matter of fact, such privileges have become an instrument in the hands of the ruling party.
Karnataka Assembly case
- Karnataka assembly speaker K.B. Koliwad has sentenced Ravi Belagere of Hi Bangalore and Anil Raj of Yelahanka Voice for a year in jail for writing defamatory articles against legislators.
- Hi Bangalore in the year 2014 and said to have ‘defamed’ Koliwad and another congress leader B.M. Nagaraju, and in 2016, Yelahanka Voice defamed BLP’s S.R.
- Vishwanath in one of their article.
- The case revived the debate about the prerequisite for codifying privileges and giving superiority to a citizen’s right to free speech over legislative privileges.
The required rethinking
- India’s legislators’ freedom of speech like the freedom of speech of citizens should be subjected to the sovereignty and integrity of the nation, public order, friendly relations with foreign states, incitement of an offence or defamation as mentioned in Article 19(2).
- The Indian citizen have a constrained right to free speech whereas their representatives have an absolute freedom of speech in the Houses.
- Even if one may reluctantly allow such a privilege in the interest of the smooth conduct of the House, the power to send people to jail for the breach of privileges does not get justified.
- Indian legislators getting to be sole judge and rewarding punishment clearly impinges on constitutionalism.
Where does the fault lie?
- The obsolete law on Parliamentary privileges bore the burden of the issue.
- The constitution lacks the proper definition of legislative privileges.
- Articles 105 and 194 clearly says 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.”
- The expression “until so defined” does not mean an absolute power not to define privileges at all.
- Legislators keep the argument burning that codification of privileges will harm the sovereignty of Parliament.
- The criticism lies at legislatives covering up corruption behind privileges.
- Indian legislators also have protection from arrest in civil cases 40 days before the session, during the session and 40 days after the session.
- The exemption from arrest is also available for meetings.
- Counting the days of three Parliamentary sessions and meetings then Indian MPs have protection from arrest for more than 365 days in a year.
Comparison of Indian Parliament with British House of commons
- The fault lies in the comparison of India parliament with that of British.
- Placing Indian Parliament on a par with the British House of Commons is wrong.
- Indian legislatures and British Parliament differ not merely as regards their general political status but also in the matter of legal powers.
- The codification of privileges is basically resisted because it would make the privileges subject to fundamental rights.
- Once subjected to fundamental rights, privileges won’t be able to put forth for judicial scrutiny.
- Which would also result in no evolution of new privileges.
- Acts and utterances defamatory of British Parliament or its members are no more treated as privilege questions.
- The U.S. House of Representative has been working smoothly without any penal powers for well over two centuries.
- Australia too codified privileges in 1987 whereas Indian parliament still continue to curtailing freedom of speech and rewarding punishments.