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CONFLICT BETWEEN PARLIAMENTARY PRIVILEGES AND FUNDAMENTAL RIGHTS.

Updated: Nov 16, 2019

#Elections #conflict #Parliamentary #privileges #fundamental #rights

Elections are approaching and the untouched matter of Parliamentary Privileges comes to the forefront. Every citizen must know about it…


CONFLICT BETWEEN PARLIAMENTARY PRIVILEGES AND FUNDAMENTAL RIGHTS ENSHRINED IN PART III OF INDIAN CONSTITUTION

Elections are approaching and the untouched matter of Parliamentary Privileges comes to the forefront. Every citizen must know about it…

There was a time when the House of Commons used to prohibit the publication of its proceedings by passing resolutions. Even as late as 1762, the House of Commons characterized in a resolution the publication of its proceedings as “a high indignity to and a notorious breach of the privilege of this House.”

The reason for this attitude was that there was no adequate protection against arbitrary kings, and members of the House could come to grief for doing plain speaking in the House. In such a situation, secrecy of parliamentary debate was considered necessary not only for the due discharge of the responsibilities of the members but also for their personal safety. This object could be achieved by prohibiting publication of any report of the debates and proceedings of the House and also by excluding strangers from the House and holding debates behind closed doors. But it is pertinent to note that in due course of time, the House gave up this practice, and even encouraged publication of its proceedings as it became conscious of the advantages to be derived from a full and clear accounts of its debates[1].

In 1836, the House of Commons provided for the publication of parliamentary papers and reports which led to the famous case of Stockdale v. Hansard,[2]a book containing defamatory matter against the plaintiff published under the authority of the House of Commons, was held to enjoy no privilege and damages were awarded to the plaintiff against the publisher, as a consequence thereof, the Parliamentary Papers Act, 1840[3], was passed which made the publication of any reports, papers, votes, or proceeding of a House of Parliament, ordered by the House, completely privileged whether the publication was only for the use of the members of Parliament, or for a wider circulation.

On the same basis, in India, under Art. 105(2)[4], no person is to be liable to any proceedings in any court in respect of the publication of any report, paper, votes or proceeding by or under the authority of a House of Parliament. Thus all persons connected with the publication of proceedings of a House are protected if the same is made under the authority of the House itself. This article does not protect publications made contumaciously.

An immense prerogative is however available in Britain. In the course of a debate in the House of Lords, allegations disparaging to the character of the plaintiff were spoken. A faithful report of debate was published in the Times. The plaintiff sued the Times for libel. The court however dismissed the action by making forceful observations that “the advantage to the community from publication of the proceedings of a House is so great, that the occasional inconvenience to individuals arising from it must yield to the general good.”[5]Therefore, a fair and faithful report of the proceedings of a House is not actionable in Britain. Publication of an obscure or partial report, or of detached part of proceedings, with intent to injure an individual, is not entitled to protection.

Article 105(2) does not confer such a protection. A newspaper not being a publication authorised by the legislature was not protected if it published a faithful report of a debate in a House which contained matter disparaging to the character of an individual, or amounting to the contempt of court.[6]Allusion may be made in this connection to Suresh Chandra Banerji v. Punit Goala.[7] A member made a speech in the W.B. Legislative Assembly. A newspaper published a report of the proceedings of the House including the speech. But the reports of the said speech in the newspaper were not published by or under the authority of the State Assembly. Therefore, the High Court refused to apply Wason v. Walter principle to India. The court made observation not in conformity with the Constitutional Scheme of Fundamental rights. It stated “ We have to apply the criminal law of the land and unless reports of the proceedings in a legislative assembly are given a privilege by Indian Law then we cannot possibly extend the principle of Wason v. Walter.. to proceedings in this country.”

In the light of the abovementioned case laws it can be ascertained that there has been some confusion pertaining to the fact that whether fundamental rights in India prevail over the parliamentary privileges ? Which the House enjoys under Art. 105(3).

This question arose for the first time in Gunupati Keshavram Reddy v. Nafisul Hasan.[8]In one of its issues Blitz published a news item casting derogatory aspersions on the speaker of the U.P. Legislative Assembly. The Speaker referred the matter to the Committee of Privileges of the House for investigations and report. The committee summoned D.H. Mistry, editor of Blitz to appear before it to clarify the position. Mistry neither appeared before the committee nor did he sent any reply. Thereafter, the assembly adopted a resolution authorising the speaker to issue an arrest warrant against Mistry with a view to enforcing his presence before the House to answer the charge of Breach of privilege. Accordingly he was brought to Lucknow and was lodged in a hotel for a week without anything further being done in the matter. In the meantime, a petition for a writ of habeas corpus was moved in the Supreme court on his behalf on the ground that Mistry’s Fundamental right under Article 22(2) had been violated. Article 22(2)[9] envisages that a person arrested must be produced before a magistrate within 24 Hours of his arrest. The Supreme Court accepted the contention that as Mistry had not been produced before a magistrate, his fundamental right under article 22(2) was blatantly violated and, accordingly, the court ordered his release.

This judicial pronouncement created the impression that the Fundamental Rights would control Parliamentary Privileges. However in Searchlight case I, more often also referred to asM.S.M. Sharma v. Sinha (I),[10] the Supreme Court held by a majority that the privileges enjoyed by a House of Parliament under Art. 105(3) [or a House of State of Legislature under Art. 194 (3)], were not subject to Art. 19(1)(a) and therefore, a House was entitled to prohibit the publication of any report of its debate or proceedings even if the prohibition contravenes the Fundamental right of Speech and Expression of the publisher under Art. 19(1)(a).

The ruling in Gunupatiwas held not binding as it was not ‘a considered opinion’ on the subject. The court argued that Art. 105(3) [or Art. 194(3)] was not declared to be ‘subject to the constitution’, and, therefore, it was as supreme as any provision of the constitution including the Fundamental rights. Any inconsistency between Arts. 105(3) [or Art. 194(3)] and Art. 19(1)(a) could be resolved by ‘harmonious construction’ of the two provisions, and Art. 19(1)(a) being of a general nature must yield to Art. 105(3) [or Art. 194(3)] which was of special nature.

The factual matrix of Searchlight was as follows : A member of Bihar Legislature made a speech on the floor of the House. The speaker ordered certain portion of the speech to be expunged. The searchlight however published the entire speech containing the expunged portion as well. The Committee of Privileges thereafter summoned the editor of searchlight to answer the charge of breach of privilege, he moved a writ petition in the Supreme Court under Art. 32 claiming that the said action by the committee infringed his fundamental right to freedom of speech and expression guaranteed under Art. 19(1)(a). But as stated above the Supreme Court rejected the editors contention.

The petitioner also contended that the proceedings before the Committee of Privileges threatened his Fundamental right under Art. 21 as well. According to Art. 21[11], no person can be deprived of his personal liberty otherwise then in accordance with the procedure established by law. The editor’s contention was rejected by court asserting that the House can make rules under Art. 118[12] in case of a House of Parliament, or Art. 208[13] in case of a House of State Legislature. Therefore, the rules made by the House regulating the procedure for enforcing its power, privileges, and immunities would fulfill the requirement of Art. 21.

After the above decision, the Committee of Privileges proceeded to consider the case of breach of privilege against the editor of Searchlight. Again the Editor came before the Supreme Court under Art. 32 in effect seeking a reconsideration of its earlier decision. He again repeated his argument that the State Legislature could not claim a privilege curtailing Art. 19(1)(a) which included the freedom of publication and circulation. He also asserted that the privileges conferred on the Assembly under Art. 194(3) [or Art 105(3) in case of Parliament] were subject to Art.19(1)(a). Thus, Searchlight II raised substantially the same questions as had been agitated in Searchlight I but unfortunately all efforts were in vain. The court refused to reconsider its earlier decision. In a nutshell the court in a way reaffirmed the proposition of law laid down by it in Searchlight I.


By- Sabir Kachhi

[1]Supra n 7, 97.


[2] (1839) L.J. (N.S.) Q.B. 294.


[3]https://www.legislation.gov.uk/ukpga/Vict/3-4/9/contents Visited at 7.25am on 20/09/2018.


[4] INDIAN CONST. Art. 105(2).


[5] Wason v. Walter LR 4 QB 73 (1868). (England).


[6] Jatish Chandra v. Harish Sadhan AIR 1956 Cal. 436 (India).


[7] AIR 1951 Cal 176, Para No. 16 of Judgement. (India).


[8] AIR 1954 SC 636. Para No. 2 of Order, (India).


[9] INDIAN CONST. Art 22(2).


[10] AIR 1959 SC 395, Last Para of Judgement, (India).


[11] INDIAN CONST. Art 21.


[12] INDIAN CONST. Art 118.


[13] INDIAN CONST. Art 208.

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