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Saturday, 10 September 2011

Does Parliament Have the Right to Issue a "Breach of Privilege" Notice to Bedi Under Current Indian Law?


Written by Dr. Seshadri Kumar, 10 September 2011

Copyright © Dr. Seshadri Kumar. All Rights Reserved.

Please visit http://www.leftbrainwave.com for other articles by Dr. Seshadri Kumar

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Introduction

To my last article, “Are the Breach of Privilege Notices Sent out by Parliament to Kiran Bedi and Om Puri Constitutional?” (http://www.leftbrainwave.com/2011/09/are-breach-of-privilege-notices-sent.htmlhttp://www.leftbrainwave.com/2011/09/are-breach-of-privilege-notices-sent.html), I received a reply from one individual (see http://www.facebook.com/groups/2213925200/?view=permalink&id=10150798194245201), challenging my article on the following counts. 

The individual claimed that

1.     I was trying to say that Parliament should not avail the right available to it under current Indian law that entitle it to punish those who defame it.
2.    The laws of other countries, that do not afford their parliaments this privilege, are irrelevant to India.

The said individual is wrong on both counts.  Since others may also have similar doubts as this person, and since the answer to these charges are detailed, I decided to answer them in a separate blog post.

My Stated Legal Position

First of all, I need to clarify again what my article was about.  It was a set of legal arguments stating why I believe that the "breach of privilege" or "contempt of parliament" notices sent by parliament to Kiran Bedi, Om Puri, and the rest would not withstand a challenge in Mrs. Bedi or Mr. Puri in the Supreme Court of India.  In other words, I DO NOT BELIEVE that the current Indian law gives the Indian parliament the right to send these notices to Messrs. Puri and Bedi.  Note that I am not saying that they cannot send breach of notices to anyone.  I am just saying that in the current circumstances, they do not have the right to send these notices to Messrs. Bedi and Puri, and that doing so violates the right to free speech enshrined in Article 19(1)(a) of the Indian constitution.

Why Do They Not Have the Right?

Below is a summary of the legal arguments I am using:

1.     The position of Indian law on what constitutes "Breach of Privilege" or "Contempt of Parliament" is NOT UNAMBIGUOUS.
2.    There is a difference between the "Letter of the Law" and the "Spirit of the Law."  When a law is not unambiguous, the Supreme Court has to interpret the intention of the law so that it understands the spirit of the law.  This includes reading the law not in isolation or using just specific phrases, but reading it as a whole to understand the true intention of the law (more on this below.)
3.    One of the principles of interpretation also includes the need to decide the situation in such a way that the honourable court believes is beneficial for society as a whole is advanced.
4.    In doing so, the Supreme Court liberally makes use of precedent, both domestic and foreign.  In fact, the Supreme Court routinely makes reference to the laws of the UK, the USA, Canada, and Australia.  So the quotation of the laws of these countries made in my previous article (http://www.leftbrainwave.com/2011/09/are-breach-of-privilege-notices-sent.html) is not at all irrelevant.

Now let me explain these points in detail.

Ambiguity of the "Breach of Privilege" and "Contempt of Parliament" Concepts

The Law

The Rajya Sabha at Work Manual (http://164.100.24.167/rajya/19/94/i5/3524rs%20Complete%20Book.pdf) specifies that

Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its members. Other such rights and immunities such as the power to punish for contempt and the power to regulate its own constitution belong primarily to each House as a collective body, for the protection of its members and the vindication of its own authority and dignity. Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by members.

It further states that

"When any of these rights and immunities is disregarded or attacked, the offence is called a breach of privilege and is punishable under the law of Parliament. Each House also claims the right to punish as contempts actions which, while not breaches of any specific privilege, obstruct or impede it in the performance of its functions, or are offences against its authority or dignity, such as disobedience to its legitimate commands or libels upon itself, its Members or its officers."

"Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results may be treated as a contempt even though there is no precedent of the offence.”

And further:

It is a breach of privilege and contempt of the House, to make speeches or to print or publish any libels reflecting on the character or proceedings of the House or its committees or on any member of the House for or relating to his character or conduct as a Member of Parliament. Such speeches or writings are punished by the House as a contempt on the principle that such acts "tend to obstruct the Houses in the performance of their functions by diminishing the respect due to them."

From these excerpts, the intention is glaringly clear:  only such actions that
      i.          tend to limit the freedoms and immunities enjoyed by the members of the house
    ii.          tend to obstruct the house in the performance of its duties
are treated as "contempt of the house" or "breaches of privilege."

Hence, any insult to an MP or to parliament cannot be treated as a "breach of privilege" or a "contempt of parliament."  Parliaments should show evidence that such insults or defamations actually have hindered the "effective discharge of the collective functions of the House" to be able to sustain its charge that the insults/defamation constitute a "breach of privilege" or a "contempt of parliament."

Application of the Principles to Messrs. Bedi and Puri

In the case of Messrs. Bedi and Puri, it is clear from the days that have followed the end of Anna Hazare's fast at Ramlila grounds that Parliament has continued to function as effectively (some would argue, as ineffectively) as before the insults were heaped on them.  Hence, from a holistic reading of the regulation, the "breach of privilege" notices are not valid.  They are only intimidatory weapons that are being used in an attempt to muzzle Messrs. Bedi and Puri's right to free speech.  If any parliamentarian is annoyed by these comments and considers them a slur on his individual reputation, he is free to take Messrs. Bedi or Puri to court on a defamation charge, but not with this bludgeoning weapon of "breach of privilege."

Indeed, the suggestion that parliament's ability to function may have even been hampered in the least because of Messrs. Puri and Bedi's insults is ludicrous, particularly when parliament has been hit with much worse incidents in the recent past, without any of them affecting its ability to function in the least: to name just a few, the Adarsh Housing Scam, the 2G spectrum scam, the Commonwealth games scandal, and the "cash for votes" scam, not to mention members fighting each other on the floor of the house.  I think we can clearly answer the question, of whether Messrs. Puri and Bedi's insults have affected the ability of parliament to function, in the negative.

How Will the Supreme Court Interpret the Law?

The only thing that remains to be answered is whether the Supreme Court will take a literal or a liberal view of the law; whether it will take a sentence such as "It is a breach of privilege and contempt of the House, to make speeches or to print or publish any libels reflecting on the character or proceedings of the House or its committees or on any members of the House for or relating to his character or conduct as a Member of Parliament" in isolation, or look at the same sentence in its larger context (given in the paragraphs above.)  All past indications and principles of jurisprudence indicate that the honourable Court will tend to take a more liberal view rather than a literal view of the law.  Let me explain why.

First, an important point regarding terminologies needs to be made.  In resolving ambiguity within laws, the Supreme Court uses two techniques - interpretation, to find out the true meaning of the law, and construction, to extend the meaning of the words in the law to situations that are beyond what is immediately envisaged by the words in the law, but to which the honourable court feels the meaning should be extended to.

Statute to be Read as a Whole

That the supreme court will tend to view a law in its entirety and not in parts can be seen from this statement of theirs in the ruling on RS Raghunath vs State of Karnataka (1991) (pp. 402-203) (http://www.indiankanoon.org/doc/995861/) :

In State of West Bengal v. Union of India, [1964] 1 SCR 371, it is observed as under:
"The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs."  It is also well-settled that the Court should examine every word of a statute in its context and to use context in its widest sense.

Liberal and Literal Construction

Another important reason why the Supreme Court will look kindly at the spirit of the law as opposed to the letter of the law is provided in their ruling from Tolaram vs State of Bombay (1954) (http://www.indiankanoon.org/doc/1014504/) :

It is a well settled rule of construction of penal statutes that if two possible and reasonable constructions can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the Court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature. As pointed out by Lord Macmillan in London and North Eastern Railway Co. v. Berriman(1), " where penalties for infringement are imposed it is not legitimate to stretch the language of a rule, however beneficent its intention, beyond the fair and ordinary meaning of its language."

Another instance that is particularly noteworthy for the eloquence of the Justices can be seen in Union of India vs Prabhakaran Vijaya Kumar (2000) (http://lawmatters.in/content/liberal-construction-to-beneficial-statutes-184) :

“In this connection, we may usefully turn to the decision of this Court in Workmen vs. American Express International Banking Corporation wherein Chinnappa Reddy, J. in para 4 of the Report has made the following observations:

The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights’ legislation are not to be put in Procrustean beds or shrunk to Lilliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognized and reduced. Judges ought to be more concerned with the ‘colour’, the ‘content’ and the ‘context’ of such statutes (we have borrowed the words from Lord Wilberforce’s opinion in Prenn v. Simmonds). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surender Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court we had occasion to say: “Semantic luxuries are misplaced in the interpretation of ‘bread and butter’ statutes. Welfare statutes must, of necessity, receive a broad interpretation.

Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.”

Principle of Beneficial Construction

Another principle guiding the honourable Supreme Court is that of beneficial construction.  This is the principle that if a statute can be understood in two ways, one which will provide a desired benefit to a class, and another which will not, the construction that preserves the benefits should be adopted.  An example of this principle can be seen in T.Barai vs Henry AH Hoe (http://www.rishabhdara.com/sc/view.php?case=7687) :

In so far as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence, no person can be convicted by such ex-post facto law nor can the enhanced punishment prescribed by amendment be applicable; but insofar as it reduces the punishment for an offence punishable under s. 16(1)(a) of the Act, there is no reason why the accused should not 907 have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. [919 F-H] Craies on Statute Law, 7th edn. at pp. 387-388 referred to.

Meaning of Libel

Even if the Court were to accept the extremely strict interpretation that simply because libellous statements were made by Messrs. Puri and Bedi, there should be penalty, there arises the question of whether there really is libel committed in this case. 

That was the point I was making in several paragraphs in my earlier post: Is there a loss of dignity to parliament?  And I argue, convincingly so I believe, (and today more Indians are convinced of this than ever) that there really is no loss of dignity to parliament because its dignity is already at rock bottom.
If someone is a thief, and this is a well-known fact, and you publicly call him a thief, such an act is not libel - the definition of libel is to publish false information about someone.

I honestly believe the honourable Supreme Court would accept these arguments and speedily direct the parliamentary "breach of privilege" or "contempt of parliament" notices to Messrs. Bedi and Puri to where they really belong - in the trash can.

Value of Foreign Precedents

My critic also mentioned his belief that the laws of other countries with regard to freedom of speech and parliamentary privilege are irrelevant to India.  Nothing could be farther from the truth.  If it is not already obvious from the quoted extracts from the rulings above that the Supreme Court freely refers to rulings in other countries' courts, I refer you to this speech of former Chief Justice of India KG Balakrishnan at Northwestern University, Illinois, USA, in 2008:

http://www.supremecourtofindia.nic.in/speeches/speeches_2008/28%5B1%5D.10.08_northwestern_university_lecture.pdf

In particular, I would like to quote some excerpts from this speech, which illustrate how much influence foreign court rulings have on Indian jurisprudence:

From the outset, Courts in independent India have frequently relied on decisions from other common law jurisdictions, the most prominent among them being of the United Kingdom, United States of America, Canada and Australia.  The opinions of foreign courts have been readily cited and relied on in landmark constitutional cases dealing with questions such as the ambit of the right to privacy, freedom of press, restraints on foreign travel, the constitutionality of the death penalty, broadcasting rights and prior restraints on publication.

Since the late 1970’s the higher judiciary in India has also taken on an activist role, especially to extend legal protection to the interests of the weak and underprivileged sections of society. It has fashioned two general strategies to expand access to justice and deliver effective remedies to those parties who would otherwise be unable to move the Constitutional Courts on account of lack of financial resources and limited awareness about their legal entitlements. In a society beset with poverty, illiteracy and entrenched social discrimination based on criteria such as caste, religion and gender - it was important for the Supreme Court of India to re-invent its role. The two strategies in question are the device of Public Interest Litigation (PIL) and the creative expansion of the ‘protection of life and liberty’ enumerated under Article 21 of the Constitution of India. Reliance on foreign law was instrumental to the unfolding of both of these ‘activist’ strategies. In respect of Public Interest Litigation (PIL), the dilution of common law requirements such as ‘locus standi’ as well as the grant of innovative remedies such as a ‘continuing mandamus’ to executive agencies were original creations of Indian judges, but considerable reliance was also placed on the practices evolved through ‘Class Action lawsuits’ in the United States.  However, it is in the expansion of the understanding of Article 21 that comparative analysis has played a significant role. 

With regard to the extent of ‘freedom of speech and expression’, the Indian Courts have repeatedly cited decisions related to the First Amendment to the U.S. Constitution. In Indian Express Newspapers v. Union of India, the Supreme Court held that the imposition of a tax on the publication of newspapers violated the constitutional right to freedom of expression, which also incorporates freedom of the press. In  Rangarajan v.  Jagjivan Ram & Ors and Union of India, the Court ruled that the censorship of a film which criticised the policy of caste-based reservations in public employment was inconsistent with the principle of freedom of expression, again relying heavily on English and American case law. Similarly, in  R. Rajagopal v.  State of Tamil Nadu, American cases were cited to reject the constitutional validity of ‘prior restraints’ placed on the publication of a convict’s biography which detailed relations between some politicians and criminals. 

I will conclude this section by simply quoting CJI Balakrishnan's statement from the above speech: "As would be evident to all of you by now, the citation of foreign precedents is a routine practice in constitutional litigation in India."

CONCLUSIONS

1.     I believe that Parliament's "breach of privilege" notices to members of Team Anna and to actor Om Puri can be successfully challenged in the Supreme Court as unconstitutional and violative of article 19(1)(a) of the Indian constitution, which guarantees all Indians the right to free speech.
2.    The arguments necessary for this defence were made in my earlier post (http://www.leftbrainwave.com/2011/09/are-breach-of-privilege-notices-sent.html) as well as in the current post.
3.    Current Indian law is not unambiguous on the right of parliament to issue "breach of privilege" or "contempt of parliament" notices to citizens for the mere offense of insulting MPs.
4.    The fact that most other parliamentary democracies have not considered mere libel of parliamentarians as grounds for contempt of parliament is very significant.
5.    Foreign precedents are very important in Indian jurisprudence and hence cannot be disregarded.  The precedents of Canada, Australia, and the UK will therefore be very carefully considered by any bench of the Supreme Court that might hear an appeal against the parliamentary "breach of privilege" notices sent to Team Anna members and Om Puri.

About the Author

The author is a PhD in Chemical Engineering and a researcher in a private company.  The opinions presented here are his own and do not represent opinions of anyone else, and especially should not be seen to represent the opinions of his employer.

5 comments:

  1. "If it is not already obvious from the quoted extracts from the rulings above that the Supreme Court freely refers to rulings in other countries' courts"

    Kumar, I don't see where in the "quoted extracts [...] above" are references to rulings in other countries. Could you provide? Thanks.

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  2. "It is a breach of privilege and contempt of the House, to make speeches or to print or publish any libels reflecting on the character or proceedings of the House or its committees or on any members of the House for or relating to his character or conduct as a Member of Parliament"

    i think you're on the ball. first off, it needs to be libel. secondly, prohibiting criticism of parliament or MPs is a very serious matter as it has a chilling effect on democracy.

    if what i say is true, why would that clause even be there in the law? there is probably already a law re: libel. why does it need to be reiterated here, in this context? the only purpose, it seems to me, is to to provide a loophole, a quick and dirty muzzle. use this law and throw away freedom of speech. yay.

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  3. Hi Mahesh,

    Thanks for the comments.

    If you look at the article above, you will see in one of the judgments, Tolaram vs State of Bombay (1954), in the "Liberal vs Literal Construction" section, that the learned judge refers to a British ruling, of Lord Macmillan in London and North Eastern Railway co. vs Berriman, which is a 1946 British case. In the same section, there is reference to a Prenn v Simmonds case, which is from British case law (1971), where they are quoting Lord Wilberforce, the presiding judge.

    As to your second question, as to why the law is there in the first place, because there is, as you correctly assume, a general law regarding libel, here is the answer. The law was created at a time when Parliament was not necessarily the supreme power. You had people like Kings who still wielded considerable power. A scathing criticism from someone that powerful could have a chilling effect on a dissenting voice in parliament; so parliament decided to make it a crime to defame or libel any MP in order to preserve free speech of parliament. But times have changed, and today parliament is supreme, and doesn't need such protection. The only comparable incident you can think of in contemporary times is if some powerful mob boss were to threaten an MP for making statements in parliament on any particular issue, the MP might clam up in fear, and to prevent that, parliament would reserve the right to prosecute such a person for interfering with parliament. For more details, please see my other article where I have discussed this: http://www.leftbrainwave.com/2011/09/are-breach-of-privilege-notices-sent.html

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  4. You have some good citations and your case may have had some merit. However, by taking a position that "Note that I am not saying that they cannot send breach of notices to anyone. I am just saying that in the current circumstances, they do not have the right to send these notices to Messrs. Bedi and Puri.. " you are discrediting your case. You are applying the Breach of Privilege statute selectively! It is equivalent to putting restrictions on who can sue who in a court of law. As long as Parliament follows a just and proper procedure in prosecuting Messrs. Bedi and Puri there is nothing to fear. If it is proved that the Parliament is violating article 19(1)(a)then both would go free. On the other hand, if Messrs. Bedi and Puri are unable to substantiate their charges with facts, they would be guilty of defamation and subject to punishment. This really is not about Messrs. Bedi and Puri, it is about the Jan Lokpal bill. Here is what a legal scholar has to say about that - http://youtu.be/tukI3MX7rvU

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  5. Of course I am applying the breach of privilege statute selectively! Have you ever heard of a frivolous lawsuit? If your case does not have legal merit, a court will throw it out. In this case, parliament does not have a strong legal case. So they don't have a legal right to send these notices - of course, they have sent it, but the Supreme Court can strike it down, and it will if petitioned. So the notices cannot stand. Sending a privilege notice because someone called MPs names is a frivolous exercise and a waste of taxpayers' money. On the other hand, if an underworld don threatened an MP with harm if he voted to support a bill against organized crime, he would be guilty of breach of privilege and contempt. Every case isn't equal in front of the law; it is about what has legal merit.

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