Freedom of Speech ? Or a “ License to Abuse ? “
Context :
Extract :
Protesting against the expunction of parts of his speech on the motion of thanks on the President’s Address, Leader of Opposition in Rajya Sabha and Congress president Mallikarjun Kharge has argued that MPs have freedom of speech, and that he did not make any personal allegations in the House.
In his letter to Rajya Sabha Chairman Jagdeep Dhankhar on Thursday (February 9), Kharge cited Article 105 of the Constitution that deals with the privileges and powers of parliamentarians. What is the provision and how does it protect MPs?
What does Article 105 say?
Article 105 of the Constitution deals with “powers, privileges, etc of the Houses of Parliament and of the members and committees thereof”, and has four clauses. It reads:
“(1)
Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2)
No member of Parliament shall be liable to any proceedings in any court in respect of any thing said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
(3)
In other respects, 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 that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.
(4)
The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.”
Simply put, Members of Parliament are exempted from any legal action for any statement made or act done in the course of their duties.
For example, a defamation suit cannot be filed for a statement made in the House.
This immunity extends to certain non-members as well, such as the Attorney General for India or a Minister who may not be a member but speaks in the House. In cases where a Member oversteps or exceeds the contours of admissible free speech, the Speaker or the House itself will deal with it, as opposed to the court.
So are there absolutely no restrictions on this privilege?
There are some, indeed. For example Article 121 of the Constitution prohibits any discussion in Parliament regarding the “conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge..”.
Where did the idea of this privilege of Parliament originate?
The Government of India Act, 1935 first brought this provision to India, with references to the powers and privileges enjoyed by the House of Commons in Britain. An initial draft of the Constitution too contained the reference to the House of Commons, but it was subsequently dropped.
However, unlike India where the Constitution is paramount, Britain follows Parliamentary supremacy. The privileges of the House of Commons is based in common law, developed over centuries through precedents.
In the 17th-century case ‘R vs Elliot, Holles and Valentine’, Sir John Elliot, a member of the House of Commons was arrested for seditious words spoken in a debate and for violence against the Speaker. However, the House of Lords provided immunity to Sir John, saying that words spoken in Parliament should only be judged therein.
This privilege has also been enshrined in the Bill of Rights 1689, by which the Parliament of England definitively established the principle of a constitutional monarchy.
In the 1884 case of ‘Bradlaugh v. Gosset’, then Chief Justice Lord Coleridge of the House of Lords observed: “What is said or done within the walls of Parliament cannot be inquired into in a court of law.”
And what have courts in India ruled?
* In the 1970 ruling in ‘Tej Kiran Jain v N Sanjiva Reddy’, the Supreme Court dismissed a plea for damages filed by the followers of the Puri Shankaracharya against parliamentarians.
The judgment recalled that “in March 1969, a World Hindu Religious Conference was held at Patna. The Shankaracharya took part in it and is reported to have observed that untouchability was in harmony with the tenets of Hinduism and that no law could stand in its way, and to have walked out when the National Anthem was played.”
The petitioners claimed that when the issue was debated in Parliament, uncharitable remarks were made against the seer. The petitioners argued that the MPs’ immunity “was against an alleged irregularity of procedure but not against an illegality”.
However, the SC ruled that “the word “ anything ” in Article 105 is of the widest import and is equivalent to ‘everything’.”
* Almost two decades later, in 1998, the SC in the case of ‘P V Narasimha Rao vs. State’ answered two questions on parliamentary privilege, broadly relating to questions of corruption.
In 1993, Narasimha Rao was Prime Minister of a minority government at the Centre. When a vote of no-confidence was called by members of the opposition against the government, some factions of the ruling party paid Jharkhand Mukti Morcha (JMM) members to vote against the motion. The motion was defeated in the House, with 251 members supporting it and 265 members against it.
Two questions came before the Supreme Court.
One, whether MPs could claim immunity from prosecution before a criminal court on charges of bribery related to parliamentary proceedings, under Articles 105(1) and 105(2).
Two, whether an MP is a “public servant” under the Prevention of Corruption Act, 1988.
A five-judge Bench of the apex court ruled that the ordinary law would not apply to the acceptance of a bribe by an MP in case of parliamentary proceedings.
“Broadly interpreted, as we think it should be, Article 105(2) protects a Member of Parliament against proceedings in court that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament,” the court said, giving a wider ambit to the protection accorded under Article 105(2).
The Court rationalised this by saying it will “enable members to participate fearlessly in Parliamentary debates” and that these members need the wider protection of immunity against all civil and criminal proceedings that bear a nexus to their speech or vote.
MY TAKE :
Ø Freedom of Speech ? …………. 13 Nov 2013
Extract :
Today , on Nehru's birthday , I am reminded of his following speeches :
> Our tryst with destiny
> A light has gone out of our lives
Then there were other memorable speeches in the distant past, viz:
> Mahatma Gandhi ( Quit India )
> Martin Luther King ( I have a dream )
> Abraham Lincoln ( Of the people / by the people / for the people )
> Winston Churchill ( Never have so many owed so much to so few )
> Brutus ( but Caesar is an honorable man )
Then I end up comparing some " famous " recent speeches , viz:,
> Sonia Gandhi ( Maut ka Saudaagar )
> Narendra Modi ( Khooni Panjaa )
> Rahul Gandhi ( ISI )
> Kapil Sibal ( No loss in 2G scam )
> Manish Tewari ( Anna is most corrupt )
> Ranjeet Sinha ( Enjoy rape )
> Naresh Agarwal ( a tea-vendor cannot become PM / even Madari collects crowds )
No doubt , amongst the living politicians , " Freedom of Speech " has totally different connotations !
For them , apparently , it means,
" License to Kill ( - if words can kill ! ) "
Obviously , Gandhian Anna Hazare is pained
In his TV interview with Rajat Sharma yesterday , he expressed his anguish at the lowly depths to which , political mud-slinging has descended during current election campaign
Whether he / she is a leader of any political party , all politicians are talking the same language , the language of ,
PHP = Power Hungry Politicians
Who cares for ,
C = Civility / Code of Conduct / Courtesy ?
I miss T N Sheshan !
I cannot escape the feeling that , in past 10 years since I wrote the above blog , mud-slinging between our
politicians has gone from “ Bad to Worse “
By the time voting time for next General Election arrives ( next March ? ), I believe , it will go from “ Worse to
Worst “
If things keep getting worse at this rate, it may be time to forget about applying :
- to “ Artificial Intelligence “ ,
and consider applying it ,
- to “ Power-Hungry Human Arrogance “
With Regards,
Hemen Parekh
www.hemenparekh.ai / 06 Mar 2023
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