Parliamentary privilege Versus Freedom of expression

Basantakumar Wareppa *

A look inside the Assembly Building (component of Capitol Complex) at Chingmeirong in 2013 :: Pix - Daniel Chabungbam

The term 'parliamentary privilege' has two significant aspects of the law in the parliamentary form of Government: the privileges and immunities of the houses of the parliament and state assembly. The parliamentary privileges protect integrity and dignity of the house of parliament and state assembly. Members of the parliament and state assembly carry great responsibility which includes aspiration of the people who elects their representative.

In India the term parliamentary privilege is used in Constitutional writing to denote both types of right and immunities is recognised by the law as a right of the houses and their members. The doctrine of 'immunity' is the freedom enshrined to the members of the house to carry out healthy debates and proceeding from question and impeachment before the courts which means that the members of the house cannot be sued or prosecuted for anything they debate in the houses.

Article 105 of Indian Constitution specifically mentions two portions namely, freedom of speech and freedom of publication of proceeding. Clause (1), expressly safeguards freedom of speech in parliament and clause (2) provides that no member of Parliament shall be liable any proceedings in any court in respect of said or any vote given by him in parliament or any committee thereof, and further provides that no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

To make speech or print or publish any defamatory words questioning the character, conduct or proceedings of the Member of Parliament, House or its Committees is a breach of privilege. Wilful misrepresentation of speeches of particular member of the House, mala fide reporting of parliamentary debates and proceeding are the breach of privilege and contempt of the House. If anyone commits such an offence may face the consequence of law.

A weekly news magazine popularly known as 'Blitz' case is pertinent in this regard. The brief of the case is reproduced:
In April 1961, M.P. Mr. Khushwaqt Raj raised a question of privilege in Lok Sabha in connection to a news item and a photograph of Mr. J.B. Kripalani, a member with a caption carried by Blize, a weekly news magazine of Bomby.

After a brief debate the matter, on a motion, was referred to the Committee of Privileges for consideration. The Committee of Privileges in its 13th Report presented to the House on 11 August 1961, reported inter alia:
"Nobody would deny the press, or as a matter of fact, any citizen, the right of fair comment. But if the comments contain personal attacks on individual members of Parliament on account of their conduct in Parliament or if the language of the comments is vulgar or abusive, they cannot be deemed to come within the bounds of fair comment or justifiable criticism. Even the Press Commission (1954) held the view that 'comment couched in vulgar or abusive language is unfair'. Nor can 'fair comment' be stretched to include irresponsible sensationalism".

In Manipur, the cases relating to parliamentary privilege motion against the media houses are rare. There is one case concerning parliamentary privilege motion against the media houses since the last one and half decade. However, even in this case, this particular media should not owe the responsibility for breach of privilege. It would be relevant to reproduce this case for further analysis on how this particular media house should not owe the responsibility for breach of privilege.

In July 2014, one of the MLAs raised a question of privilege in Manipur Legislative Assembly against the Editor of a local news television network and Director of a human rights organisation who was participating as guest speaker in a TV discussion. The MLA alleged that remarks made by the guest speaker in the said TV discussion tend to lower the dignity of the House and hence, it constitutes a breach of privilege and contempt of the House. It may be recalled that the TV discussion was a live telecast and the news television network had no opportunity for editing.

A notice of question of breach of privilege and contempt of the House was issued and the Committee of Privilege, Manipur Legislative Assembly summoned against the editor and guest speaker. Representative of the local news television network regretted about the remark made by the guest speaker. In this particular case, since the TV discussion was on live and question of editing should have been most appropriate submission to maintain the stance of media house.

Journalist and media house are human rights defender under the wider definition of the UN Declaration on the Rights of Human Rights Defenders. Journalist as a human rights defender as sell as an individual have the legitimate rights to submit criticism and proposals for improvement of bodies which includes both Parliament and State Assembly dealing with public affairs. Moreover, Article 8 of the Declaration on the Rights and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedom, 1998 provides fair comment and critique.

In Pandit M.S.M. Sharma's case, the petitioner contended that the privileges of the House under Article 194(3) are subject to the provision of Part III of the Constitution. In support of his contention the petitioner relied in the Supreme Court's decision in Gunupati Keshvaram v. Nafisul Hasan. In this latter case Homi Mistry was arrested at his B'bay residence under warrant issued by the Speaker of U.P. Assembly for contempt of the House and was flown for writ of habeas corpus, the Supreme Court directed his release as he had not been produced before a magistrate within 24 hours of his arrest as provided in Article 22(2). This decision therefore indicated that Article 194(or Article 105) was subject to Part III of the Constitution which ensures fundamental rights of the citizen.

In Sharma's case the Court held that in case of conflict between fundamental right under Article 19 (1) (a) and a privilege under Article 194 (3) the latter would prevail. As regards Article 21, on facts the Court did not find any violation of it. The proposition laid down in this case explained not to mean that all cases the privileges shall override the fundamental rights.

Moreover, Privileges and Immunities of the State Legislature cannot override the principle of 'natural justice' and 'no one can be judge in his own court' under any circumstances. It is reminded that a House of Parliament or Legislature cannot claim its proceeding as that of Court and they cannot try anyone or any case directly. The proceeding of Parliament and Legislature is regarded as a quasi judicial and therefore any question of jurisdiction arises as to a certain matter, it has to be decided by a court of law in appropriate proceedings.