The Hindu : House privileges and the courts

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Thursday, Nov 27, 2003

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House privileges and the courts

By V.R. Krishna Iyer

When life and liberty are put in jeopardy by the House on the ground of breach of privilege, the court's verdict about the privilege is final.

THE POLITICAL sovereign, expressed in constitutional diction, is `We, the People of India'. The Constitution itself, legally speaking, is the creation of the political sovereign. The three great instrumentalities, viz., the legislature, the executive and the judiciary, are created by and derive power under the Constitution. The ultimate value and operational purpose of the Constitution and the instruments thereunder is to guarantee to all the citizens those fundamental freedoms set out in the Preamble and spelt out in Part III thereof. The framers of the Constitution foresaw the need for harmonious hermeneutics in the event of friction, conflict of jurisdiction and occasion for a just resolution of clashes among the trinity and in situations of imbroglio. Indeed, confrontations between the legislature and the judiciary have risen and reconciliation, avoiding a breakdown, has been achieved in some measure in the light of the genius of the founding deed.

The House of Commons fought for privileges against the royalty and the Lords to gain the status of the High Court of Parliament with power to punish. This judicial pretension cannot hold good in India where the Constitution has exclusively vested, in entirety, with a sense of finality, all judicial power in the judicature under the supreme control of the Supreme Court of India. Article 141 categorically proclaims, "the law declared by the Supreme Court shall be binding on all courts within the territory of India." Article 142 empowers the Supreme Court, in the exercise of its jurisdiction, the power to issue commands necessary for doing complete justice in any cause or matter pending before it, and any such direction can be enforceable throughout the territory of India. Article 144 obligates that without any exception `all authorities', civil and judicial, in the territory of India shall act in aid of the Supreme Court. This broad perspective, pregnant with value-laden authority, must inform our approach when the question for consideration is a conflict of jurisdiction between the House and the Court.

It is a paramount principle, emphatically laid down by the Supreme Court, that the basic structure and features of the Constitution cannot be amended at all and is non-negotiably enduring. The rule of law and the independence of the judiciary, secularism and democracy are basic features of the Constitution. No Parliament, even if unanimous, no party in power even if it commands national consensus, can alter these basic features or structure. What is arbitrary is violative of the rule of law, as the Supreme Court has laid down. What is plainly not just, fair and reasonable is arbitrary and void. If a preposterous privilege is alleged to have been violated and an opportunity in terms of natural justice is not given to the alleged violator of being heard by an impartial body, the end product, viz., the order of the legislature, will be ultra vires. If the alleged privilege is unknown and unknowable, is archaic and arcane and involves intricate and alien research for discovery, the citizen cannot regard it as law, since law, as has been held by the Supreme Court, must have the quality of access to know. How can any intelligent Indian find the law of privileges that prevailed in England on January 26, 1950?

Having said this much, the rest is governed by the great judgment in Special Reference No.1 of 1964 under Article 143 which is a locus classicus. The learning and exhaustiveness of the judgment of Gajendragatkar C.J, the creative and clear declaration of law in an ambiguous and dilemmatic domain of law, remain the radiant light to guide lawyers and legislatures alike.

In England, the House of Commons has unlimited power, uncommon in written Constitutions. We must be wary of borrowing from such a nidus with a history incompatible with our story of swaraj. We must not forget the words of Coolidge J. in Stockdale v Hansard that "it is in the very nature of irresponsible power, particularly in the hands of a large body, to run into excess." Illustratively I read the statement of the House of Commons in 1593: "This court for its dignity and highness hath privilege, as all other courts have, and as it is above all courts, so it hath privilege above all courts, and as it also hath jurisdiction too, so hath also coercion compulsion, otherwise the jurisdiction is nothing in court, if it hath no coercion." An angry Commons may for gross contempt sentence a victim to go to the gallows; an outrage if we transplant such punitive atrocity to the Indian Parliament oblivious of the fact that (a) we have a Bill of Rights in Part III, (b) that our Parliament is not and can never be a court, (c) that we have a judiciary as a separate and coordinate branch of the state, and (d) that whatever the historical reasons in Great Britain for the House of Commons to have acted as a court in the past, the punishments meted out did impinge on the liberty of the subject and no court could save him.

Another imbroglio that mires the privilege issue is that under Articles 105 and 194, it must be shown that power claimed by the Commons had subsistence at the commencement of our Constitution, an impossible proposition. The fundamental condition that we must never forget is that the Indian provision articulating privileges opens with the words "subject to the other provisions of the Constitution." Inevitably, the tall and unbounded claim that the Indian legislature is the highest court above the Supreme Court must collapse. Outside the four walls of the Assembly, Articles 105 and 194 do not empower infliction of punishment for contempt beyond inscrutability by the judicial instrumentality under Articles 32 and 226. Any action by any citizen outside the House is amenable to judicial jurisdiction and it would be egregious to reject this power on the bizarre ground of limitless power of the House. But within the House, the freedom of speech and other `proceedings' are within the exclusive power of the House and the Speaker and beyond the pale of the judicature.

Article 19 i(a) must be read in harmony with Article 194 and so interpreted, `proceedings' inside the House, including free speech, are beyond the bounds of the court. In this context, Article 21 that specifically deals with the right to life and liberty claims our focus and locus. It is reasonable to hold that when life and liberty are put in jeopardy by the House on the ground of breach of privilege, the court's verdict about the privilege is final. The reason is a constitutional provision. Whenever there is a dispute on any question of law, Article 141 clothes the Supreme Court with the final power of declaration. The Supreme Court and even the High Courts have jurisdiction to examine this question. Here we cannot accept the British practice because the source and growth of the privileges claimed are radically alien.

Can a Member commit homicide inside a House and get away with it on the score of `privilege; under the umbrella of `proceedings' in Parliament? Criminal acts may not claim absolution even in the land of the Bill of Rights and supremacy of Parliament. The House of Lords, in Eliot's case, (supra), left the question open, suggesting that an assault by a Member may be cognisable by courts. In Bradlaugh v Gossett, Mr. Justice Stephen said that he "knew of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice."

One may read May's observation: "With regard to a crime committed in Parliament, the House in which it was committed might claim the right to decide whether to exercise its own jurisdiction or to hand the offender over to the criminal courts. In taking this decision, it would no doubt be guided by the nature of the offence, and the adequacy or inadequacy of the penalties, somewhat lacking in flexibility, which it could inflict."

Indeed, our Constitution expressly provides, as a lasting solution, that privileges and immunities of the House and its members be codified. The reference to the law in England is only a transitory provision. If Parliament makes a law regarding privileges the court gains jurisdiction to interpret it.

We have a written Constitution and a Sovereign Republic with its own national ethos and it is time to jettison a borrowed, time-barred transitory provision and enact a great code promulgating the law fine-tuned to the liberties and parliamentary privileges of a free people. We shall not suffer the humiliation of subjection to Hansard reports of half a century ago since it is a dependencia syndrome repugnant to our Republic's supremacy. People's rights cannot be banished if democracy is to survive through elected surrogates. The rule of law commands that privileges jurisprudence be crystallised and codified.

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