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Friday, 30 September 2011

Lyrics to my Lokpal Hai Song in Hindi

Please see my song on Jan Lokpal, based on Golmaal (1979), at youtube:

http://www.youtube.com/watch?v=D3KH6RNwT5M

Lyrics in Hindi:


लोकपाल  है  भाई  जन  लोकपाल  है
लोकपाल  है  भाई  जन  लोकपाल  है
अरे  लोकपाल  है  भाई  जन  लोकपाल  है

जहाँ  भी  देखोगे
चोरों  का  राज  है
पूछोगे  तुम  मुझे
इसका  इलाज  है
लोकपाल  है  भाई  जन  लोकपाल  है
लोकपाल  
लोकपाल
लोक  पल  है  जन  लोकपाल  है

राशन  कार्ड  लेने  जब  आप  अफसर  से  मिले
उसने  बोला  एक  हज़ार  रूपये  दी  जिए
अब  रिश्वत  दोगे  तो  कल  रोटी  कहाँ  से  आएगा ?
ऐसे  अत्याचार  को  अब  कौन  पूछेगा ?
लोकपाल  है  भाई  जन  लोकपाल  है
लोकपाल  लोकपाल  है
लोकपाल  है  भाई  जन  लोकपाल  है

जहाँ  भी  देखोगे
चोरों  का  राज  है
पूछोगे  तुम  मुझे
इसका  इलाज  है
लोकपाल  है  भाई  जन  लोकपाल  है
लोकपाल  लोकपाल  है
लोकपाल  है  जन  लोकपाल  है

एक्साम  तो  पास  कर  दिया  अब  नौकरी  चाहिए
सरकारी  दफ्तर  में  सर्टिफिकेट  दे  दिए
नौकरी  चाहिए  तो  खर्चा  पांच  लाख  है
घूस  अभी  नहीं  दिया  तो  सड़क  के  मालिक  हैं !
लोकपाल  है  भाई  जन  लोकपाल  है
लोकपाल  लोकपाल  है
लोकपाल  है  भाई  जन  लोकपाल  है
हे  हे  हे  हे

जहाँ  भी  देखोगे
चोरों  का  राज  है
पूछोगे  तुम  मुझे
इसका  इलाज  है
लोकपाल  है  भाई  जन  लोकपाल  है
लोकपाल  लोकपाल  लोकपाल  लोकपाल
लोकपाल  है  जन  लोकपाल  है

राशन  नौकरी  कुछ  नहीं  आप  बिज़नस  तो  खोलो
कुछ  भी  करने  के  लिए  लायसेंस   तो  निकालो
अब  बड़े  बड़े  सर्कार  के  आ  जायेंगे  वो  चोर
आप  का  काम  कर  देंगे  पर  फीस  हैं  सौ  करोड़

लोकपाल  है  भाई  जन  लोकपाल  है

लोकपाल  लोकपाल

लोकपाल  है  भाई  जन  लोकपाल  है

हे  हे  हे  हे

जहाँ  भी  देखो  तुम
चोरों  का  राज  है
पूछोगे  तुम  मुझे
इसका  इलाज  है

लोकपाल  है  भाई  जन  लोकपाल  है
लोकपाल  पाल  लोक  लोक  लोक  लोक
लोकपाल  है  जन  लोकपाल  है

लोक ...
पाल ...

Monday, 19 September 2011

Why They Are Against Anna - Revisited


Written by Dr. Seshadri Kumar, 19 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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The Canard

In a previous article (http://www.leftbrainwave.com/2011/08/why-so-many-people-are-against-anna.html), I had examined the question of why there are so many people opposed to the Anna Hazare anti-corruption agitation.  Recently, while answering some questions in response to my earlier articles, some of the reasons became a bit clearer, though I cannot claim to have fully understood the anti-Anna phenomenon among the intelligentsia.

Firstly, I want to clarify one consistent allegation that all the opponents of Anna keep raising – one that is completely wrong, but is being propagated in the faith that repeating a lie a million times will make it the truth.  That allegation is that the Anna Hazare anti-corruption fast was unconstitutional.  Nothing could be further from the truth.  Let me explain.

I have searched through the Indian Constitution, and am unable to find a single article of the Constitution they have been in violation of.  Someone starts a canard like this and everyone else brainlessly parrots it without checking the facts.

The Constitutionality of Anna’s Protest

What have Anna and his followers done?  They have gone on a peaceful, nonviolent protest, which is completely constitutional. There is nothing in the Constitution that says that one cannot go on a hunger fast to demand certain things.  THIS IS NOT UNCONSTITUTIONAL.  In fact, the Constitution says that:

Article 19(1)(a): All citizens shall have the right to freedom of speech and expression

A fast is an expression of Anna's feelings, and he has the right to do so.

Article 19(1)(b): All citizens shall have the right to assemble peaceably and without arms.

What did you see on the streets of India?  People marching with lighted candles in their hands, and shouting "Bhrashtachar mitana hai! Jan Lokpal lana hai!"  (“Corruption must be eliminated!  Jan Lokpal must be implemented!”) What’s unconstitutional about that?  They were not carrying knives and sticks in their hands, only candles.  Their right to peaceably march in this way is guaranteed by article 19(1)(a) and 19(1)(b).

Furthermore, the constitution also requires all Indians to follow certain guidelines.  In particular, article 51A(i) states that

It shall be the duty of every citizen of India to safeguard public property and to abjure violence.

Again, Anna and his followers have been remarkably disciplined in following this instruction.

Who is being Unconstitutional?

In fact, by opposing and arguing against a democratic and peaceful movement that is operating in a completely constitutional way, it is the anti-Anna chorus who are behaving unconstitutionally by trying to suppress freedom of speech and expression.

Furthermore, their protestations of love for our Constitution are not credible, for when movement after movement comes in India that seeks to enforce regulation based on violence and force, they do not utter a word, but when Anna Hazare goes to demand the end of corruption through a Jan Lokpal bill, they suddenly become the new, self-styled defenders of the Constitution.

There are so many Johnny-come-latelys who start professing to save the Indian Constitution - there is even a group on facebook (started during the Anna fast) with the pompous name, "Save our Constitution."  No, thank you, the Indian constitution does not need you to defend it.  If anything, it will need to be defended FROM people like you, who seek to suppress people's basic rights.

Where Were You Then?

Let me ask these great defenders of the Constitution - when there were agitations in Hyderabad in Nov-Dec 2009, where were you? 


Where were you when mobs defaced buildings, torched government property, enforced bandhs, causing huge losses to the state, pelted stones at government officers and property, staged rail rokos, caused disruption in road and rail traffic, burned buses, destroyed statues celebrating Telugu culture, and garlanded statues of Mahatma Gandhi with chappals, all for the cause of a separate Telangana state?  (See http://www.hindu.com/2009/12/07/stories/2009120756460300.htm for just ONE such report.) 

Where was your now-professed love for the Constitution, which clearly says under article 51A (i) that Indians must safeguard public property and abjure violence?

In fact, Telangana 2009 is only one of innumerable such incidents that happen in India routinely.  I have cited several incidents in a previous article (http://www.leftbrainwave.com/2011/08/critical-look-at-misinformation-in.html). There are many more, and they occur on a frequent basis.  Yet I have not heard this screaming banshee about the violation of the Constitution with regard to any of those previous incidents the way I am hearing it now.

In Bernardo Bertolucci's epic movie, "The Last Emperor," there is a dialogue between the English tutor of the last emperor of China, played, with his usual excellence, by Peter O'Toole, and the young boy emperor.  This dialogue is as much about the need for precision in speech as it is about integrity.  The tutor tells the emperor, "Your majesty, a gentleman should always say what he means."  The emperor asks him, "Why is that?" and the tutor answers, "Because, your majesty, if a person cannot say what he means, he cannot possibly mean what he says, and a gentleman must always mean what he says."  

So all you self-styled defenders of the Indian Constitution have never said what you profess to mean (love for the Constitution) all this time when people were freely violating it; so you cannot possibly mean what you are saying now about your love for the Indian Constitution.


The Incomprehensible “Intelligentsia”

So, what gives?

Since there is no unconstitutionality in Anna’s actions, as shown above, we need to think further why, especially among highly educated people (whom you might refer to as the “intelligentsia,”) there is so much opposition to Anna Hazare.  I must say I am not quite clear on this, but I have thought about it.  I am amazed that the people I would have expected the most support from – highly intelligent people, who I’d expect would value dearly fundamental values such as freedom of speech, etc., are actually the people who are opposing Anna tooth and nail.

So far the only reasonably good explanation I have seen has come from Swapan Dasgupta: http://blogs.timesofindia.indiatimes.com/right-and-wrong/entry/don-t-mess-with-the-middle-class

This article explains things somewhat by saying that the so-called "intellectuals" have always been mercenary and ready to sell themselves to those in power.    

As a case in point, remember how much support Indira Gandhi had from the "intelligentsia" of this country during the undemocratic emergency she illegally imposed - in fact, only two days ago, PN Bhagwati, who was a junior supreme court justice at the time, actually admitted he was wrong in supporting Indira Gandhi (http://www.indianexpress.com/news/35-yrs-later-a-former-chief-justice-of-india-pleads-guilty/847392/ ).  

But the question is, WHY?

Trying to Unravel the Puzzle

I speculate on this below.  These are only speculations, but I am sure they do apply to a fair number of those who oppose the whole Anna thing, if not all.

First, a lot of the people who do oppose Anna are people who have become successful; and in doing so, they have learned all the tricks to success in our current failed democracy.  They know who to bribe, they have the influence network so they can pick up the phone and say, "Arre Sharmaji, zara mera kaam karva dijiye na?" (“Dear Sharmaji, Would you please get this job done for me?”) and they do not want to upset the apple cart now.  Why mess with the system when you know how to work it?  Anna's movement is scary because it portends an uncertain future.  What if I need to get my son admitted in an engineering college and he doesn't have the marks?  Does this bill mean I cannot use money and influence any longer to get him through?

Second, some of the people who oppose this are actually people who will be affected; that is, people in government office bureaucracies.  Nobody wants someone checking up on their misdeeds.

Third, the attitude of many people who have had to "pay their dues," so to say, to get their success, could well be, "hey, we went through all this and did not complain; who the hell are you to say you cannot take it any longer?  For 64 years we all put up with it, why can you not put up with it now?  What makes you so special?"

Fourth, many people are attracted to power.  The state is powerful and has natural adherents as a result.  If a Raj Thackeray causes riots all over Mumbai by inflaming people and trying to change things through unconstitutional means, people will not speak out – because he has money power and muscle.  What power does Anna have?  He has actually been exhorting people not to use violence on any account.  He doesn’t have money either.  So this is not a group worth sticking to.  No power, no muscle, just a bunch of activists.  Post-independence Indian history has shown that only power and muscle win.  The idea that a group of people can have power on the strength of their ideas, as happened in the freedom struggle, is so old and dusty through disuse that it has been forgotten.

Fifth, and finally, many people are still caught up in a feudal form of thinking.  Who are these ordinary people to go and protest against the government?  Aam janata (Common folk) has no business challenging Rajas (kings), be they hereditary or elected (of course, with the Congress govt. the two worlds meet, but that's a topic for another discussion.)  Common people should stick to common people topics, such as crying about how high prices are in the world, and doing nothing about it.  Rajas should only be challenged by other Rajas or contenders for the throne...so it is okay for BJP leaders to attack the government, but not for common folk.

Why? Don't know, somehow it seems wrong to them.  Sort of like the old "varna system" of Indian society...each segment should only do their thing.  A relative of mine apparently responded to my writing articles by saying that you should either go into politics to do all these article-writing or not do it at all.  How typical.  The idea that people can lay claim to their own destiny is something that is too radical for these people.  Work in gentle ways, they tell you.  Circulate petitions, call up leaders, but don't go on the streets - don't do something so radical.

But you know what?  The people of India are tired of being treated like dirt, and so the "old rules" about who can do what have also changed.  I am not talking about laws here when I speak of rules, I am speaking of the "social rules" that many people hold as correct.  Just as it is legal for a dalit today to become the PM, even if that may have been unacceptable in the past, our so-called "intellectuals" need to mentally accept that this is a participatory democracy and that people are free to protest on the streets to ask for their rights.

The Rubicon has been crossed.

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.

Monday, 5 September 2011

Are the Breach of Privilege Notices Sent out by Parliament to Kiran Bedi and Om Puri Constitutional?


Written by Dr. Seshadri Kumar, September 4, 2011

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

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Introduction and Executive Summary

The term "breach of privilege notice" has been on the airwaves a fair bit recently, and I would imagine a lot of people (as I myself was, before I started researching this topic) are fairly clueless about what it really means, except to note that it construes something menacing and something to be afraid of.

When these terms are spoken of in awed tones or with a lot of authority, most people think that parliament's right to haul up people in front of it to answer for perceived affronts is unquestionable.  I wasn't so sure.

So I did a little digging into this to separate the wheat from the chaff.  I hope you find it worthwhile.  I did.

The bottom line: The Indian parliament most likely does not have the authority to penalize members of the public for the mere affront of abusing it, whether "in gross" (referring to parliamentarians as a whole) or in particular to specific MPs.

Such actions would be violative of article 19(1)(a) of the Indian constitution that guarantees every Indian the right to free speech.  

If an eminent lawyer like Prashant Bhushan or his father Shanti Bhushan were to challenge the breach of privilege notice as unconstitutional, they would (in my humble opinion) win the case in the Supreme Court of India.

This whole affair is a shameful attempt by parliament to muzzle free speech and to try to create an intimidating atmosphere reminiscent of absolute monarchy, where any dissent or criticism of the monarch would result in swift and demonstrative punishment.

In particular, considering the current situation in India, where parliament has a crisis of confidence with the people, this move by the government, while it will soothe the hurt egos of our MPs, will only worsen relations between the rulers and the ruled.

Read below for why this is the case.

The Issue: Why the "Breach of Privilege" Motion

As anyone who hasn't lived under a rock for the past month knows, there was a massive agitation in India over the issue of corruption, with Anna Hazare going on a hunger strike at Ramlila Grounds in Delhi to agitate for the passage of the "Jan Lokpal bill," a bill that would create a strong ombudsman to take up the cause of the people against institutionalized corruption in government.  See http://www.leftbrainwave.com/2011/08/first-victory-deadlock-broken.html and http://www.leftbrainwave.com/2011/08/critical-look-at-misinformation-in.html for more background on this agitation.

During the course of this agitation, some members of Team Anna made some disparaging comments about parliamentarians in general. Specifically, the incident that seems to have riled many MPs is prominent Team Anna member Kiran Bedi calling MPs hypocrites who change their tune to suit the circumstances.  The other incident that happened on the same day and stage, in particular, was Bollywood actor Om Puri, who let loose on MPs, calling them robbers who have been looting the country for years.  He further said that most MPs were uneducated village bumpkins who were "nalayaks" (incompetents).

You can find Kiran Bedi's and Om Puri’s rants at these links:

http://www.ndtv.com/video/player/news/kiran-bedi-targets-mps-at-ramlila-ground/209114

http://www.youtube.com/watch?v=TD6ZI8uD5OQ

Members of Parliament were quite incensed about this description of themselves, as was evident in the televised hearings of the debate on Anna's proposed bill, during which both Sharad Yadav and Lalu Yadav did not oppose the acceptance of Anna's terms on the three resolutions he wanted parliament to pass for him to stop his fast, but spent almost their entire time condemning Bedi’s and Puri's outbursts and telling them, in effect, in what was an ugly display reminiscent of mob talk, not to mess with MPs because they could be on the receiving end too.

And that is precisely what happened.

But are the "breach of privilege" notices sent to Om Puri, Kiran Bedi, and more recently Prashant Bhushan and Arvind Kejriwal, legal?  Will they stand the test of India's constitution, which the pro-government lobbyists in the media have been screaming about from the rooftops as though they were the only protectors of that institution?

Before we can answer that question, we need to understand the notions of parliamentary privilege and why these concepts were put there in the first place.  We can then review whether the actions of Messrs Bedi and Puri and others indeed do fit the spirit of the rules that exist today.

What is Parliamentary Privilege?

Origins

The issue of parliamentary privilege dates to the seventeenth century in Britain, where parliament had a number of conflicts with the monarch.  Specifically, in 1642, King Charles I tried to arrest 5 MPs of the English parliament who had spoken out against him.  It was in the context of events like this that the idea of a parliament, whose members should be free to speak their minds without fear of any punishment from powerful authorities such as the king, that the concept of parliamentary privilege was deemed to be absolutely necessary for the proper functioning of parliament.

Freedom of Speech

In particular, the central tenets of parliamentary procedure, for which parliaments around the world still refer to British practice, are that any MP needs to be able to speak about and debate any issue in parliament without any fear of being sued in court for defamation or libel or for violation of any law of the land.  In particular, the famous "Bill of Rights" that came into force in England in 1689 laid down the principles of freedom of speech for parliamentarians. 

Specifically, article 9 of the bill of rights states "that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."

Breach of Privilege

Any attempt to interfere with this freedom of speech is labelled a "breach of privilege." This can either take the form of direct action, as in the case of King Charles I, who physically tried to arrest MPs, as in the case of a court or authority who tries to hold MPs legally accountable for their opinions expressed in parliament, or indirectly, as in the case when someone threatens an MP for the opinions expressed in parliament.

In such a case, parliament reserves to itself the right to punish those guilty of such breach of privilege.

A Hypothetical Indian Example

In the Indian context, a good contemporary example would be that of parliament discussing the 2G spectrum scandal and an MP expressing, perhaps, an opinion that Mr. Ratan Tata or Mr. Anil Ambani was a corrupt man.  Normally, if such an allegation were made outside parliament, either Mr. Tata or Mr. Ambani, as the case may be, would be entitled to file a defamation or libel lawsuit against the erring MP.

Because of parliamentary privilege, however, this is not possible.  This was recognized by early parliamentarians as integral to the independence of parliament.

Who defines the parameters of Parliamentary privilege?

It is important to point out here that the constitution does not lay down the exact privileges that members of parliament are entitled to, except for their freedom of speech.  For everything else, the constitution defers to parliament itself under article 105(3): "In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law."

The parliamentary rules regarding privilege are, therefore, defined by Parliament themselves, are laid down in manuals of parliamentary procedure, both in the Lok Sabha and Rajya Sabha.  These are based largely on British models, notably the famous manual by Thomas Erskine May of 1851 (often simply referred to as "Erskine May" in Parliamentary practice).  (For more on Erskine May, please see http://en.wikipedia.org/wiki/Erskine_May:_Parliamentary_Practice.) 


The British influence on Indian parliamentary thought is still very strong, as is revealed even by recent proceedings of the Lok Sabha and Rajya Sabha, in which references are often made to British parliamentary thought as a model and precedent (see, e.g.,

Contempt of Parliament

In addition to breach of privilege, another important device that parliament has at its disposal is "contempt of parliament."  The word "contempt" here has to be interpreted much in the same sense as "contempt of court," in the sense that an order or parliament or a summons from them is disobeyed; or a ruling by them that a section of the proceedings in parliament is to be expunged from the records is violated by a publisher, as indeed did happen in the Indian parliament, for which the publisher was hauled up before parliament for contempt.

The Rajya Sabha manuals on parliamentary practice  (http://rajyasabha.nic.in/rsnew/rsat_work/chapter-8.pdf) also note that contempt may be used for the following:
"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." 

It is, in fact, under the rubric of "contempt of parliament" that the notices sent to Messrs. Bedi, Puri, et al., should have been framed; but confounding of "breach of privilege" and "contempt of the house" is often inadvertently done. 

So what we need to investigate is whether contempt of the house is something that can be reasonably invoked as a response to the kinds of comments that Bedi and Puri, among others, have made.

Examples of Breach of Privilege and Contempt in the Indian Parliament

The Rajya Sabha chapter on parliamentary privilege (quoted earlier) gives several examples of defamatory and libellous statements that were prosecuted for the reason that they lowered the dignity of the institution of parliament; notably, it also gives several instances where such libellous statements were ignored.

“Pratipaksha” Incident

For example, the said chapter quotes an instance from 1974 as follows:
"On 5 September 1974, the House adopted a motion that an article published in a Hindi weekly Pratipaksha under the title, ‘Sansad Ya Choron Aur Dalalon Ka Adda’ constituted a gross breach of privilege and contempt of the House and that the House would best consult its own dignity by taking no further action in the matter."

Indian Express “Petty Little Lies in Parliament” Incident

"In another case, the Chairman disposed a privilege notice arising out of a signed item of the Executive Editor of the Indian Express carrying the heading, 'Petty little lies in Parliament' observing, inter alia, that 'Newspapers always look into things closely and critically...the newspapers are the eyes and ears of the public and if every citizen has a right to criticise the actions of others, so also the newspapers whose profession is to turn the light of publicity on the irregularities of public actions.'"

Acharya Rajneesh “MPs are Mentally Under-Developed” Incident

"In another case, by a notice of breach of privilege, the Chairman's attention was invited to certain observations of Acharya Rajneesh reported in the Nav Bharat Times of 3 August 1986, that 'Members of Indian Parliament are mentally under-developed. If investigations are made they would be found to have mental age of 14 only.' The Chairman observed, 'We generally treat such remarks beneath our notice...It is inconsistent with our dignity to attach any importance to the vituperative outbursts or irresponsible statements of a frustrated person.'"

Keeping the Context in Mind

The above examples show how in the past the honourable members of parliament have chosen judiciously not to prosecute instances where members of the public or the press have chosen to speak in defamatory terms.  There is an element of judgment involved, particularly in determining whether the action against the alleged perpetrator of the offence would result in raising or lowering further the dignity of the house that is perceived to have been injured.  It would be advisable for the members of the current house to keep this in mind and keep the wisdom of their forbears in mind while considering contempt actions against Messrs. Bedi, Puri, and the rest.

What do I mean?  Just that what Puri and Bedi said openly, crores of Indians say privately in their homes.  By prosecuting them in this way you make them martyrs and bring out the pent-up anger in more Indians about their true feelings about their representatives.  The more parliament presses the defamation issue about what Messrs. Bedi and Puri said at Ramlila grounds, the more the masses will rise in defiance of that action. 

Already, there are posts all around the internet defying parliament (of course, by not-so-well-known people) and daring parliament to charge them with breach of privilege and contempt.  The more parliament makes a big issue of this, the bigger the backlash will be.  It is strange that parliament seems not to have learned much about public reaction to thoughtless autocratic actions from their last misadventure, when they arrested Anna Hazare.

The way people see this is that Parliament is reacting to this whole defamation thing in the most childish and immature way possible.  It just seems like they got upset that someone would call them names in public.  But is this something new?

Precedents in Popular Media

Parliament should wake up and smell the coffee.  As far back as 1986, I remember watching a Hindi movie called "Aakhree Raasta" in which a prominent politician is shown as a corrupt, womanizing criminal who does not hesitate to rape the wife of his devoted follower, murder her, and then frame the follower for the wife's murder.  The movie shows how the entire establishment, including the police and the judiciary, collude with the politician for their own ends in the injustice.

And this is only one of innumerable movies that show politicians in a bad light.  The fact of the matter is that for most ordinary Indians, politicians are not a respected lot.  Most Indians do think that politicians are an untrustworthy bunch of folks who are only interested in fattening their own pockets; who maintain a dirty nexus with criminals; and who care not a whit for the people. 

It is ludicrous to suggest that parliament's dignity suddenly was lowered by a few statements from the podium at Ramlila Maidan.   It is already at an all time low in the estimation of most Indians.  Watch most Indian mainstream movies and you will see politicians (save a few honest exceptions) being shown in an extremely negative light.

Bad Behaviour of Members of Parliament in Public

If that were not enough, people are now unfortunate enough to be able to see exactly what happens in Parliament, thanks to Lok Sabha TV and Rajya Sabha TV. It is a matter of shame that our elected representatives often show themselves on TV in a manner worse than that of kids in the playground, with the way they sometimes throw chairs at each other; get into fistfights; grab papers from the speaker's hands; and the like.  Just the other day some legislator in the Rajasthan assembly opposition threw a shoe at the treasury benches and a legislator in the treasury benches took his shoe off to throw at the other side.  Is this behaviour becoming of elected representatives?

Have our parliamentarians left any dignity for Om Puri and Kiran Bedi to lower?

Re-examination of the Questions of Privilege and Contempt

I now return to my fundamental premise: that the privilege/contempt motions passed by Parliament in respect of Messrs. Bedi and Puri is violative of free speech guaranteed by article 19(1)(a) of the Indian constitution, which states: “All citizens shall have the right to freedom of speech and expression.”  Why do I claim this?

From the earlier sections, it is clear what the origins of and need for parliamentary privilege and contempt are.  Privilege was enshrined in parliamentary practice to ensure that members could speak freely on issues for the benefit of people.  Contempt was added so that members would not feel threatened or constrained in any way in the performance of their duty.

For instance, if a mob boss were to threaten physical harm to an MP publicly if he were to vote in a certain way on a motion, such threats would constitute contempt of parliament.  The net import of all this is that a libel or defamation is worthy of consideration of contempt of parliament only if it threatens to undermine the effective functioning of parliament.

To understand that this is, indeed, the motivation and spirit behind the idea of contempt of parliament, let us refer back to the Rajya Sabha guidelines quoted earlier: "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."  It is clear that the moving spirit between both the privileges of members and the rulings regarding contempts is the desire to ensure that parliament functions effectively and independently of any external pressures.

Now, there is really no impediment to the proper, effective, and interference-free functioning of parliament because of the angry outbursts of Messrs. Bedi and Puri.  We have also established that there really is no lower level of dignity to which parliament can be brought down to, in the eyes of the public, than the level that the honourable members of parliament have already brought it to by their own actions, "far above our poor power to add or to detract." (As Abraham Lincoln put it in a much, much different context.)  

Hence there is no reason to invoke questions of breach of privilege or contempt for the statements made by Messrs. Bedi and Puri.

Current Interpretation of Breach of Privilege and Contempt in Other Parliamentary Democracies

The parliamentary system of government originated in Great Britain, but has been followed in several countries, notably, Canada, Australia, and India.  It is therefore revealing to see how both the UK as well as these other democracies have interpreted parliamentary privilege in the centuries following its initial introduction in the 17th century in Britain.

United Kingdom

Examination of the records of the British House of Commons, the model that the Indian parliament has chosen to follow, reveals that there has been a dramatic shift in the thinking even in Great Britain

I quote from the Joint Select Committee First Report on Parliamentary Privilege, 1998-99 Session (http://www.publications.parliament.uk/pa/jt199899/jtselect/jtpriv/43/4302.htm), which talks about the present situation in both the UK and Australia (all bold emphasis in the quoted paragraphs below are mine)

"Chapter 6. Disciplinary and Penal Powers
...
268. The definition of contempt of Parliament set out above makes no specific provision for `abusive contempts'. An abusive contempt consists of words or actions by any person which either House considers disrespectful, insulting or defamatory. In the past, Parliament, and the House of Commons in particular, treated as contempts various affronts to its dignity, such as insults addressed to the House or members, and defamations of the House or the Speaker or individual members.

Newspapers, and later broadcasts, were once a focus of members' complaints. The last time the House of Commons contemplated using its penal powers, in 1957, was in respect of an editor whose apology to the committee of privileges was deemed insufficient. He had published an article in which he claimed that members were evading petrol rationing.

  269.  Times have changed. The Commons is now less sensitive. The Clerks of both Houses thought there was still a case for retaining this aspect of contempt, for example, in connection with a particularly vitriolic and personal press campaign. The 1967 committee considered a serious defamation of the Speaker or other occupants of the Chair might well continue to be treated as contempt. In practice the Lords have long ceased to take any notice of an abusive contempt, and the Commons decision in 1978 to require evidence of substantial interference before treating a matter as a contempt has considerably reduced its scope.”

...

270.  We can see no need to retain abusive contempt as a separate head of contempt of Parliament. If the abuse is so sustained or of such a degree that it amounts to an improper interference with the House or its members, then it constitutes a contempt anyway. Similarly, any abuse which occurs in the course of and interrupts parliamentary proceedings constitutes a contempt. If there is no interference with Parliament's work, the abuse does not call for action from Parliament. 

The Clerks of the two Houses summed up the position well:
`In the past, Parliament interpreted the obstructive element in contempt fairly liberally, and proceeded sternly against abusive comment and behaviour calculated to subject them to public ridicule, and thereby—as they saw it—to obstruct them. More recently, however, both Houses have passed over in silence much that would have attracted an energetic response in previous years. The dignity which contempt offends against was tacitly seen as better preserved by ignoring abuse than by punishing it.'”


Australia

Continuing from the aforementioned UK Joint Select Committee First Report:

“It may be noted that the Australian joint committee in 1984 considered claims of contempt in this area should be abandoned, and sections 4 and 6 of the Parliamentary Privileges Act 1987 (Australia) effectively abolished abusive contempt.

    Section 4: `Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member.'

    Section 6(1): `Words or acts shall not be taken to be an offence against a House by reason only that those words or acts are defamatory or critical of the Parliament, a House, a committee, or a member.'

Canada

The Canadian parliament’s views on parliamentary privilege are laid out in the Parliament of Canada, House of Commons Procedure and Practice, 2000 Edition, edited by Robert Marleau and Camille Monpetit: http://www.parl.gc.ca/marleaumontpetit/DocumentViewer.aspx?DocId=1001&Sec=Ch03&Seq=4&Language=E

What is astonishing on reading this document is how early the Canadians realized the dangers of conferring special privileges to a select few: 

With the Union Act, 1840 which created the Province of Canada out of Upper and Lower Canada, and especially following the achievement of responsible government, issues of privilege were less frequent or serious. This can be attributed to the fact that responsible government acknowledged the supremacy of the Assembly. The Assembly no longer felt threatened by outside bodies and thus was less sensitive to criticism. Members were less likely to be upset when their rights were unintentionally interfered with, and most infractions of privilege were committed by inadvertence.”

The Canadian Procedures also document how this perception by Canadians of privilege and contempt (so as not to create a class of people with rights above everyone else) has translated into actual parliamentary business, and an extreme reluctance to invoke contempt proceedings:

The reluctance to invoke the House’s authority to reprimand, admonish or imprison anyone found to have trampled its dignity or authority and that of its Members appears to have become a near constant feature of the Canadian approach to privilege. Though the power of the House to imprison remains, it is difficult to foresee circumstances arising that would oblige the House to invoke it.”

“Members have proven themselves to be fairly thick-skinned when it comes to criticism, even when it appears hard and unfair. They seem willing to endure such treatment from the press and other media rather than raise a potential conflict between the authority of the House and the freedom of the press.”

“There is, however, no doubt that the Canadian House of Commons remains capable of protecting itself from senseless abuse should the occasion ever arise.”

“In only a very few cases in Canadian practice has the House, or a procedure committee report, recommended a punishment. A 1976 committee report did chastise a former Member (Auguste Choquette) who claimed that many parliamentarians had obtained undue financial considerations. After the former Member maintained his allegation under questioning, the committee concluded that his attitude was intemperate and irresponsible, but recommended no further consideration be given to the matter.”

“In the 1987 Parry case, the Committee also did not recommend punishment and the Member’s apology to the House put an end to the matter. In the 1996 Jacob case, the Committee noted that while the Member’s actions were ill advised, they did not amount to contempt or a breach of parliamentary privilege. This was also true in the 1998 case concerning the integrity of the House and the Speaker, following comments that were made on the Speaker’s ruling on displaying the flag in the House. In its report, the Standing Committee on Procedure and House Affairs found that the statements attributed to the Members quoted in the Ottawa Sun newspaper did not bring into question the integrity of the House or the Speaker.”

So, clearly, the UK, from which we have borrowed our parliamentary privilege rules, and several other countries that have borrowed the parliamentary tradition, have moved into the modern era, while our parliament insists on being stuck in the world of 1851.  It would be altogether proper and dignified for the Indian parliament, too, to revise their rules of contempt and strike the clauses related to mere libel and defamation off the records.

The irony of the situation is that the Indian parliament’s action stands the notion of privilege on its head.  The notions of privilege were incorporated into parliament to protect it from a monarch who was angry that he was being criticized by parliament; now parliament is trying to use it to penalize and harass members of the public because it is now annoyed by their criticism of it.  The parliament has assumed the powers of the monarch.

The probable reason for the difficulty in which the Indian ruling class finds itself today, trying to define its supremacy in an anachronistic way, can probably be understood by recognizing that many Indians have not yet fully made the mental transition from a feudal society to a truly democratic society where all people are considered equal.

Nothing illustrates this more acutely than the fact that the Indian parliament wishes to issue notices of breach of privilege and contempt at a time when many other parliamentary democracies are actually questioning even the clauses relating to immunity of speech and action of members within parliament.  Clearly, this illustrates that the honourable members of our parliament are caught within a time warp and are unwilling to acknowledge the sweeping changes that have overtaken the human race.

Possibility of a Class-Action Defamation Lawsuit by Parliament

Allowing parliament to invoke such clauses raises a dangerous question of disallowing free speech and thereby violating article 19(1)(a) of the Constitution.  Messrs. Bedi and Puri have simply aired their opinion, and this ought to be protected by free speech.  They have spoken ill of parliamentarians, and so the latter, if they so desire, are at full liberty to file a normal class-action defamation lawsuit against the two. 

I, for one, would look forward to the entertainment that such a ludicrous spectacle would offer, and am willing to bet that any sane judge of the Supreme Court would readily throw such a lawsuit into the trash. 

This is because most legal arguments rest on one important pillar of jurisprudence: precedent.  For example, if people have been publicly calling me a liar, in print, movies, and other places, for years, and one day some new entity calls me a liar, I will not be able to successfully sue this entity for defamation, because there is a precedent set here.  If I did not object to so many entities before this latest one calling me a liar, I really do not have the right (unless I was unable to or was not in a position to legally act earlier) to complain now.

In similar fashion, parliament, which now for decades has been cursed in media as well as in private, at a time now, when young people across the nation write "Mera neta chor hai" (my leader is a thief) on their hands, and when scandals of impropriety have been rocking the country like clockwork for the past few years, cannot suddenly wake up and say that calling us robbers and illiterates is defamation.  It would be best for parliament to salvage what little they have of their dignity by not taking recourse to such a ridiculous spectacle as a defamation class-action suit.


Conclusions


  1. The parliamentary privilege and contempt rules on the books are archaic.  They do not meet the standards of modern times, when parliament is not (as it was in 17th century Britain) threatened by an aggressive monarch.
  2. The contempt rules are designed to prevent interference of parliamentary activity by outside pressure.  Calling parliamentarians names does not infringe on their freedom to do their work and hence does not meet the standard for contempt or breach of privilege.
  3. Parliament's perceived dignity by the people of India is already very low, and Messrs. Bedi and Puri's remarks cannot lower it further.  They could try to salvage it a little by not acting like petulant children and showing their muscle.
  4. Parliament does not even have sufficient grounds for filing a defamation lawsuit against Messrs. Bedi and Puri for their remarks; they would lose on grounds of precedence.
  5. The attack on Messrs. Puri and Bedi can and should be seen for what it really is: an attack on free speech.


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.