Open Forum

New Delhi, 28 September 2011

Parliamentary Privileges

LIFT VEIL OF SECRECY

By Dr.S.Saraswathi

(Ex Director, ICSSR)

Parliamentary privileges have been in the news lately following notices by some MPs to three members of Team Anna (Prashant Bhushan, Arvind Kejriwal and Kiran Bedi) for contravening these. They stand accused of reportedly calling our Right Honourables’ corrupt, untrustworthy and similar not so flattering adjectives. Notwithstanding, the notices were later withdrawn, it raises a very important question about the privileges themselves.

Specially, against the backdrop that these Parliamentary rights are shrouded in mystery with most people clueless about them. Notably, what they are and what constitutes a breach?

According to the Constitution, Parliament has the power to initiate breach of privilege notices against Ministers and MPs for making statements which tantamount to lowering the dignity of the Parliament.

Borrowed from the British practice, our Constitutional framers, for reasons best known to them, left undefined these privileges and opined that we follow the British model. Wherein, conventions reign supreme and have the force of law in many spheres of the Parliamentary system.

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Importantly, under the Westminster model, Parliamentary privileges allow Members to speak freely in the House of Commons and House of Lords without fear of being accused of slander or contempt of Court.  True, even as these continue to be undefined, British Parliament itself has evolved these privileges under Erskine May’s “Parliamentary Practices”.

Pertinently, the prerogatives grew over the years in response to requirements of the House of Commons MPs to raise their voice against arbitrariness of the King and the overwhelming authority of the Courts. As also against the special status of the House of Lords and in defence of the commoners they represented.

Under these, the Right Honourables’ got immunity from civil and criminal liability for statements and actions, voting within the Parliament and its committees and when discharging duties of a MP in and outside the Parliament which is considered necessary for every Member of the legislative bodies in a democratic Government.

In India, Articles 105 and 194 of the Constitution safeguard the powers, privileges, and immunities of the Members of Parliament and State legislatures, and the Rules of Procedure and Conduct of Business in the Lok Sabha recognises these. 

This is not all. A Standing Committee on Privileges deal with questions relating to privileges and violations, if any. Furthermore, reference to the British practices were removed in 1979 and the then existing practices became the base for any further change.

There is no gainsaying, that the notion of Parliamentary privileges is controversial even in Britain, but more so in India where it is a borrowed concept. Thanks to being indefinite and un-intelligible they are therefore subject to overuse, abuse, misuse as well as violations. While it was accepted in Britain after prolonged struggles and earned by the Parliamentarians therein, in India our MPs got it on a platter without any exertion.

However, the cloak of privileges cannot silence the voice of the people for long. The case involving Team Anna members is not an instance of any legislator claiming immunity for any speech or action, but a question of ordinary citizens seen as insulting or defaming the institution of Parliament and some Parliamentarians. 

Particularly, as thee utterances by Team Anna raises a question of defamation in the event the speakers cannot prove the truth of their statements, but there is no element of breach of Parliamentary privilege.

Arguably, if our Right Honourables are aggrieved they can resort to filing a defamation suit in Court if they so desire.  As no privilege is breached as the candid remarks about the way some leaders, MPs and political Parties behave is perceived allegedly as dishonest by Team Anna speakers. Recall, one Anna Hazare speaker only caricatured a cartoon figure to elucidate his opinion.

At the same time, the other side of the picture also cannot be overlooked.  Namely, all citizens have a Fundamental Right to freedom of speech and expression guaranteed under the Constitution. This includes ideas, words, and expressions in visual and audio forms and communication through any media.  This is of course, restricted to reasonable limits so as to safeguard the equal rights of others.

Today, the Government has vast powers and responsibilities and is expected to deal with multifarious problems, and correspondingly, debates in and outside the Parliament stretch to unlimited areas.  Add to this, the powers and privileges of legislators are also widening to match the growing needs. Simultaneously, the awareness level of the people is also rising.

Undeniably, trust in Parliament and the Parliamentarians in any democratic  society is bound to decline if increasing number of candidates with criminal association get elected, and  mounting cases of corruption and goondaism involving some MPs are exposed.  

Remember, even a few cases are enough to tarnish the image of any public body.  Under the present circumstances, Parliamentary powers and privileges cannot be used as a veil to conceal secret intentions if any or to counter peaceful opposition.

Particularly, as Parliamentary majority in India under the present electoral system does not represent the majority of the people.  Our Right Honourables represent their Parties and not so much their constituencies. Whereby, there is a real danger of a Parliamentary majority assuming dominance and riding roughshod over the wishes of others left unrepresented in the present system of elections. 

Like our Parliamentarians, every citizen too enjoys certain Fundamental Rights under the Indian Constitution. These cannot be curtailed by claims of privileges unless there is a clear case of slander, defamation, or any corrupt act. 

The dignity of the House cannot be maintained by insistence of privileges as by the character, calibre, knowledge, and commitment of the MPs themselves. According to an eminent authority on Parliament and elections Dr .JFS Ross asserts: “It is not primarily professional skill or technical knowledge that are needed in the legislative branch of the Government, but high quality of mind and heart, and character. 

“Intelligence, breadth of vision, warm human sympathies, receptiveness to new ideas, balanced judgment, capacity for hard work, mastery of details – such is the equipment to be desired in the people who undertake to direct public policy on behalf of their fellows,” he adds for good measure.

Clearly, it is imperative to protect the rights and privileges of the common people which are constantly threatened on all sides.  Our rulers --- the Government and law makers --- have to take up this task in right earnestness. They also need to do so without losing track in their anxiety to hold on to and guarding (real or imaginary) their own privileges. ----INFA

(Copyright, India News and Feature Alliance)