The Hindu : Individual liberty and powers of legislature

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Tuesday, Dec 02, 2003

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Individual liberty and powers of legislature

By K.T. Thomas

The dignity of the individual is the keystone of the Constitution. Hence protection of it should be the prime concern of all institutions created by the Constitution.

RECENTLY THE Tamil Nadu Legislative Assembly adopted a resolution sentencing five persons to terms of imprisonment on the premise that they committed breach of privilege of the Assembly. This is not the first time mediapersons have been subjected to punitive action by legislative assemblies. When a citizen is punished for contempt of the House of the legislature, it invariably results in deprivation of his liberty. But at present, the sentenced person has no remedy by way of appeal. Is it constitutionally permissible to deprive a citizen of his liberty in the manner in which legislative assemblies did without providing him a right of appeal? I do not propose to deal with the background in which the Tamil Nadu Assembly passed the resolution sentencing the five persons to imprisonment nor do I refer to the reasoning, if any, shown in the resolution.

Article 105(3) of the Constitution speaks about the powers, privileges and immunities of Parliament whereas Article 194(3) is the corresponding provision for the state legislature. Both are identically worded except with respect to the designation of the House. The first clause refers to the freedom of speech of the members inside the House. The second clause confers immunity to them from legal proceedings in respect of what they speak inside the House. The fourth clause is intended only to extend such powers, privileges and immunities to other persons who are allowed to take part in the proceedings of the House.

It is the remaining clause three that is relevant for consideration now. That clause is the real repository of the powers of the House. It reads: "In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 26 of the Constitution (Forty-fourth Amendment) Act, 1978."

The clauses in the original frame were slightly different and the change was made in 1978 by the 44th Amendment of the Constitution. Prior to the amendment, the powers, privileges and immunities of the members of the House were such as would be defined by Parliament or the legislature by law and until then the powers, privileges and immunities were those of the House of Commons of the United Kingdom. The parliamentary history of Britain shows that there were many occasions when friction erupted between the House of Commons and those who published proceedings of the House as well as those who made their own comments on such proceedings. Prior to the forty-fourth amendment, at least a few occasions arose in India when citizens had to fight battles with the House of legislature on the claim of privileges and immunities of its members. Some of those cases reached the Supreme Court during the early stages of the functioning of the republic. Among them the case of Keshav Singh (1964) gave rise to serious judicial discussion at the Allahabad High Court and also in the Supreme Court of India. The U.P. Vidhan Sabha imposed a punishment of imprisonment for a certain term on Keshav Singh, a journalist, on the ground of breach of privilege of the members of the House by publishing a pamphlet. When Keshav Singh moved the Allahabad High Court with a petition under Article 226 for protection of his liberty, two judges of the High Court entertained his petition and ordered him to be released on bail. The Vidhan Sabha then became more aggressive and passed another resolution summoning the two judges of the High Court as well as the advocate who filed the writ petition. They were directed to appear before the Assembly along with Keshav Singh. The two judges and the advocate then moved different petitions in the High Court under Article 226 contending that the resolution of the House amounted to contempt of court and was without jurisdiction. A jumbo bench of all the 28 judges of the High Court heard the writ petitions; they ordered notice to the Speaker of the Assembly and also to the Government of U.P. and, in the meanwhile, the operation of the resolution of the Assembly was kept in abeyance.

The situation snowballed into a constitutional crisis. The rival functionaries wanted to demonstrate that one was higher than the other. At that stage the President of India sought the advice of the Supreme Court. For that purpose, a reference was made to the Supreme Court under Article 143 of the Constitution regarding certain questions concerning the powers of the House of legislature.

A bench of seven judges of the Supreme Court headed by Chief Justice P.B. Gajendragadkar heard detailed arguments on various aspects of the questions referred to it. Arguments were addressed by M.C. Setalwad, the then Attorney General for India, C.K. Daphtari, N.A. Palkiwala and H.M. Seerwai, the doyens of the Bar. The Supreme Court finally sent its advice to the President of India. The gist of this was as follows: "In a democratic country governed by a written constitution, it is the constitution which is supreme and sovereign ... legislators, Ministers and Judges all take oath of allegiance to the Constitution, for, it is by the relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to the provisions of the Constitution that they owe allegiance. Therefore, there can be no doubt that the sovereignty which can be claimed by the Parliament in England, cannot be claimed by any legislature in India in the literal absolute sense."

The apex court further advised that if Parliament (or the state legislature) made any law prescribing its powers, privileges and immunities, they would be vulnerable to Article 13 of the Constitution — which mandates that any law made in contravention of the fundamental rights shall, to the extent of such contravention, be void. In reaching this advice, the Supreme Court followed the dictum laid down in an earlier decision of the court (M.S.M. Sharma Vs. Sri Krishna Sinha). The further advice given was that whenever there is a conflict between the powers of the legislature and the fundamental rights of citizens, the latter would prevail.

This opinion was rendered at a time when the Supreme Court's approach towards Article 21 of the Constitution (that "no persons shall be deprived of his life or personal liberty except according to procedure established by law") was governed by the restricted interpretation placed on it by the Supreme Court in its decision in A.K. Gopalan vs. State of Madras, which stood in the field until 1978. Under that restricted interpretation, it was enough that the law that deprived a person of his liberty was made by a competent legislative body after following the procedure laid down in the Constitution. But during the immediate post-Emergency period, a larger bench of the Supreme Court departed from this narrow interpretation and adopted a wider and more purposive interpretation, holding that the expression "procedure established by law" should be reasonable, fair and just (vide Menaka Gandhi case, AIR 1978 SC 597).

Taking the cue from this expanded interpretation regarding the most pivotal fundamental right enshrined in the Constitution, that no person shall be deprived of his liberty except according to procedure established by law, the apex court held that the law, to become just, fair and reasonable, shall provide at least one right of appeal to the person who is deprived of his liberty.

In Dadu alias Tulsidas Vs. State of Maharashtra (AIR 2000 SC 3203), the Supreme Court observed: "Not providing at least one right of appeal would negate the due process of law in the matter of dispensation of criminal justice... There is no doubt that the right of appeal is a creature of the statute and when conferred it is a substantive right, but totally disarming the appellate forum from granting interim relief in the form of suspension of sentence, would be unjust, unfair and violative of Article 21 of the Constitution.".

What happens now if Parliament or a state legislature adopts a resolution imposing a sentence of imprisonment on a person holding him guilty of contempt of the House in exercise of its powers either under Article 105(3) or Article 194(3) of the Constitution? The concerned person has no remedy of appeal. Of course in Keshav Singh's case, and in the recent case when the Tamil Nadu Assembly ordered imprisonment, the concerned persons approached the Supreme Court under Article 32 of the Constitution for enforcement of their fundamental rights. It must be remembered that ordinary citizens cannot afford to approach the Supreme Court at the first stage when a House of legislature orders him to be detained in prison. The remedy in Article 226 is discretionary and that would not be as effective as an appeal.

The advantages of an appeal are manifold. An appeal would be a matter of right for the aggrieved person and secondly the appeal forum has co-extensive jurisdiction with the original forum which imposed the punishment and hence the former can arrive at its own finding uninhibited by any limitation. In a democratic framework where judicial review is one of the basic features the most suitable appellate forum would be a body of judicature. There is no need to feel apprehensive that by providing such a right of appeal the majesty or even the authority of Parliament or the state legislature will be eroded. The dignity of the individual is the keystone of the Constitution and hence protection of it should be the prime concern of all institutions created by the Constitution. It is high time the lacuna was filled by providing a right of appeal, through appropriate legislation, to the person sentenced to imprisonment for breach of privilege of the House of legislature.

(The author is a former Judge of the Supreme Court of India.)

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