The efficiency, independence and integrity of the Parliament and its Members is ensured by the conferment of certain rights and immunities. Also called Parliamentary Privileges, these immunities protect a range of acts within the precincts of the Parliament from scrutiny. Freedom of speech, Protection from Judicial Scrutiny in context of anything said or Vote given by a Member, and freedom of Publication of Parliamentary proceedings are some privileges expressly granted by the Constitution of India. Apart from the above, the Parliamentarians also rely on a largely un-codified set of privileges and immunities to shield them from unwarranted interference in discharging their duties. In this context, the judgment passed by the Hon’ble Supreme Court in Ajit Mohan & Ors. v. Legislative Assembly National Capital Territory of Delhi (“Facebook”) reignites the debate on the need to codify parliamentary privileges. Through this article, the authors aim to trace the reasons for their non-codification up until now.
The backdrop of the judgment passed in Facebook emanates from the issuance of summons dated (“dt.”) 03.02.2021 in continuation of the previously issued summons dt. 10.09.2020 and 18.09.2020 issued under Rule 172 of the Rules of Procedure and Conduct of Business in the Delhi Legislative Assembly to Facebook India Online Services Pvt. Ltd. (hereinafter “Facebook”) by the Delhi Assembly’s Committee on Peace & Harmony. In the aftermath of the communal riots that transpired in New Delhi from 24th - 29th February 2021, the Committee was tasked with giving recommendations on preventive and remedial measures concerning issues of governance, social cohesion, unity and peace. Amidst aspects such as the influence of social media, power of the Parliament to issue Summons to persons unconnected with the executive, and Parliamentary Privilege versus right to privacy and free speech, another crucial aspect, though not ventured in detail by the judgment, emerged, i.e., whether to define contours to privilege powers or to let it remain un-codified to evolve apropos of the needs of the time.
To Codify or Not to Codify
“Parliament will define the powers and privileges, but until Parliament has undertaken the legislation and passes it, the privileges and powers of the House of Commons will apply. So, it is only a temporary affair. Of course Parliament may never legislate on that point and it is therefore for the members to be vigilant.” -Dr. Rajendra Prasand
In Facebook , the case of the Petitioners was that the power of parliamentary privilege is a special right which could not be used as a “sword of assertion of power” against them. Placing reliance on Article 194(3) , it was contended that the Constitution envisaged privileges to be defined by Legislature.
While the Petitioners’ case was that the amorphous nature of uncodified privileges offends due process, the case of the Respondents was that it is this very indeterminate nature of the privileges which allows to cater to unforeseen situations before the Assemblies and Parliament, i.e., situations which may have not existed at the time of codification of such privileges. The case of the Respondents was further that the un-codified privileges were not outliers, and that the law contained several other “open textured” concepts. The Respondents further contended that the Supreme Court has already defined the extent of these privileges through previous judicial decisions.
While the Petitioners prayed that the Parliament may be nudged in setting a framework for privileges or the Court should take it upon itself to lay down governing principles for the exercise of these privileges. The Respondents vehemently opposed this proposed judicial intervention in legislative affairs.
The Court observed that the wordings of the Constitution on privileges were unambiguous and did not set any timelines for codification of powers, privileges and immunities of the Houses. It was also noted by the Court that there exists no uniformity globally on codification of such privileges. The court out-rightly refused to “nudge” the Parliament in this direction and held that:
“There was no timeline provided for codification of powers, privileges and immunities of a House. The Constitution has given a leeway to the Legislature to define the same from time to time, but there was no compulsion qua the same. If the Legislature in its wisdom is of the opinion that it needs to be so done, they will do so. Is it for this constitutional court to nudge them in that direction. Our answer would be in the negative.”
The facts as they emerge from Facebook’s case present a peculiar position. The Indian Legislature is now confronted with entities which exist with cross-border implications and are not necessarily within their jurisdiction or regulatory control. Had parliamentary privileges been legislated before the incorporation of such entities, the power of the Parliament/ Legislative Assembly to summon their representatives may not have been provided for. Thus giving weight to the prospect of leaving the privileges undefined to meet the changing times.
TRACING THE TRAIL
The House of Commons, it is said, wrested privileges “from the unwilling hands of autocratic monarchs” 1 which made it axiomatic that they could not be easily curbed. A similar freedom now rests with the Indian legislators in the form of unobstructed privileges within Parliament.
The original text from the Constitution qua Article 105 (3) stipulated that “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, and until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution.” Subsequently, the Article was amended to remove the reference to House of Commons to that of the Parliament. Though the omission of the words “House of Commons of the Parliament of the United Kingdom” from the original text was regarded as a reinforcement of the sovereign character of the Constitution, however, the insertion of “defined by Parliament by law” indicated a possibility of defining the said powers, privileges and immunities. 2
At juncture it may further be correct to mention that the debate of codification of privileges is perhaps older than the Constitution. Various Reports of the Parliament’s Committee on Privileges give an insight into the views of Legislators on codification. The Reports observe that at the Presiding Officers of Legislative Bodies in India Conference held in 1939, it was agreed that there should be a definition of privilege, however, no legislation to that effect was ultimately passed.
Thereafter, when the issue was reapproached in 1948, GV Mavalankar expressed his anxiety on codification of parliamentary privileges becoming a hindrance whenever a new/unforeseeable situation would arise. In 1950, Mavalankar stated that another reason for his stance against codification emanated from the possibility of misuse of such codification by a majoritarian regime. He said, “It is important to bear in mind that the privileges of members are not to be conceived with reference to this or that party, but as privileges of every member of the House, whether he belongs to Government or the Opposition party. My fears are, therefore, that an attempt at legislation would mean a substantial curtailment of the privileges as they exist today.”
In an earlier Madras High Court decision of C. Subramaniam v. Speaker of the Madras Legislative Assembly , the Court, akin to Facebook , refused to intervene on the Petitioner’s plea of issuing directions for defining the powers, privileges and immunities under Article 194 (3) holding that the Constitution did not intend on stipulating deadlines for codification, and had it intended so, it would have been explicitly stated therein.
This was followed by the First Press Commission in 1954 and the Second Press Commission in 1982 wherein the codification of the privileges of the Parliament and State Legislature was strongly recommended. The First Conference of the Chairmen of Committees of Privileges of Parliament and State Legislatures in India, held in New Delhi on 14 and 15 March 1992, came to the conclusion that codification of Parliamentary Privileges would make them subject to Part III of the Constitution, in turn amenable to judicial scrutiny and judicial review.
The Fourth Report of the Committee of Privileges , 1994 observed another facet of uncodified privileges. It noted that the Legislature’s power to punish for contempt was similar to that of courts. Thus, questions of breach of such privileges can be best decided by the House in accordance with the facts and circumstances of each case without specifying these instances in so many words as an enactment. This line of reasoning further advanced their case against codification.
In the same Report, 52.17% of those surveyed were opposed to codification, as a result of which, the Report held that if the Parliamentary Privileges were to be codified, they would lose their flexibility in dynamic situations. The same conclusion was repeated in the Eleventh Report of the Committee of Privileges , 2008, working with an enhanced sample size, observed that only 32.96% favoured codification of Parliamentary Privileges while 60.43% were against it. While concluding against codification of Parliamentary Privileges, the Report further noted that with a codified structure in place “courts will be called upon more and more to intervene and that a written law will make it difficult for the Parliament to maintain that dignity which rightly belongs to it.” Thus, the Parliament’s apprehension, up until now, appears to be premised on anticipated undue interference from the judiciary once the a law on privileges in enacted.
While a written code provides certainty, an unwritten code provides the Members space to assert their rights with flexibility. The reasons cited above merit more space in the debate on privileges which currently centres on protecting the freedom of speech of citizens and press which, in Stanley Kutler’s words, enjoys the status of “the people’s paladin against official wrongdoing.”
As an unwritten code, privileges hamper the ability of individuals to critique the House or its members. Without the bindings of the written word, the citizens can be punished for a breach of privilege for any conduct so adjudged by the House as a breach of its privilege. Concurrently, it becomes imperative to locate reasons for the reluctance on part of Legislators to codify the law on privileges and weigh them against the evolving situations of today’s time.
Currently, the law on privileges rests in a “nebulous state” 3 . With the pre-existing corpus of decisions on the extent of privileges, the Facebook judgment is indicative that the debate regarding the codification of privileges in the country has to be re-looked. While the Parliament may prefer non-codification, the reasons for such a way forward must be forthcoming from Parliamentarians beyond those already discussed.
1 K.N Goyal, “Codification of Privileges – Search for an Alternative” (1985) 3 SCC J, 21
2 Erskine May, “Parliamentary Practice”, 24th Edn., (2011)
3 Akhtar Ali Khan, “Power, Privileges and Immunities: Need for Codification” 1980,The Indian Journal of Political Science, Vol. 41, 309