M J Antony: Wages of legislative inaction

OUT OF COURT

The current face-off between the judiciary and Parliament over the expulsion of members has shown the reason why the law makers would not codify their privileges. If they codify them, they will be subjected to the scrutiny of the courts. If they are left in the delightfully vague state in which they are, the house can get away with any drastic steps against members of the public, the media and even the legislators.

The Constitution-makers left it to Parliament to define the powers, privileges and immunities of Parliament. Article 105 (Parliament) and Article 194 (state legislatures) deal with these subjects. They say that the privileges of the houses shall be "such as may from time to time be defined" by the houses themselves. However, this has not been done for more than half a century "" deliberately or inadvertently. Therefore, the next clause in the above articles comes into play. It says that until the privileges are defined, they shall be those of the House of Commons at the time of the commencement of the Constitution. Few points in law could be more nebulous than this.

Though two attempts were made to change the law in view of recurring confrontations between Parliament and the judiciary, they have not been successful. The 42nd Constitution amendment was not brought into force. The 44nd amendment only reinforced the status quo. Thus, what the founding fathers had thought was a transitory provision, until the law was made, has become a source of confusion all these decades.

Meanwhile, the privileges of British Parliament themselves have changed following the recommendations of a select committee of the House of Commons set up in 1965. Though the British have not codified the privileges "" their Constitution is also not a written one "" they abolished several obsolete rules and outdated resolutions touching upon this issue. These changes make the task of applying the British precedents to Indian legislature all the more difficult.

Therefore, privileges have become an unruly horse. The opposition uses it to embarrass the treasury benches for giving inaccurate information to the house. New breach of privileges are invented in each session. Therefore, parliamentarians have a vested interest in keeping the privileges of the house as vague as possible. Decades ago, in the "Searchlight" case, the Supreme Court had pleaded for codification of the privileges instead of keeping them "in a nebulous state with the result that a citizen will have to make a research into the unwritten law of privileges of the House of Commons at the risk of being called before the bar of the legislature." But both Parliament and the legislatures have not heeded this call as such a step would subject the law to judicial review.

So far the legislatures were using this all-purpose weapon against frustrated pamphleteers and adamant editors. The first case dealt with Blitz weekly, in which the unbending editor was brought to Lucknow for writing against the Speaker of the UP legislature. In the famous Keshav Singh case, the pamphleteer wrote against a member of the UP house. When he was summoned, he stood with his back against the Speaker. His behaviour invited jail, which was challenged by a lawyer. The house ordered the arrest of the lawyer too. When two judges of the high court stayed his arrest, the judges were also ordered to be arrested and brought before the legislative house. A 28-judge full bench stayed it further. This led to the Presidential reference, where the court noted that the privileges were not codified. The Press Commission had commented about the over-sensitiveness of the legislatures even to honest criticism. The Press Council has remarked that the present undefined state has placed the media in an unenviable position.

The chickens have come to roost as it were. This time, it is not any outsider who is accusing the house of illegality. It is the members of Parliament themselves who have allegedly been found taking money for asking questions in the house. They contend that they have not been punished according to any procedure established by law. Moreover, the fundamental rights of anybody are above undefined privileges. Therefore, the lapse on the part of the law-makers has, for the first time, hit the members themselves.

The Supreme Court has taken the stand in leading cases that the fundamental rights of the citizens would take precedence over all other rights and privileges. It has also emphasised the power of judicial review in recent times. Therefore, whether the privileges are codified or not, the judiciary will have an interpretative role in such crises. It has to decide whether a particular privilege claimed by the house exists or not. It has to go into the legality of the action taken by the house when it affects the rights of the public or its own member. The earlier these issues are settled, the better for democracy.