Written by Dr. Seshadri Kumar, September 4, 2011
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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
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.
"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.”
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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
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
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.
