On December 10, the Speaker of the Lok Sabha Sumitra Mahajan, “expunged” some remarks which were dubbed as “insulting and defamatory”.
The rules of procedure of the Lok Sabha empower the Speaker to expunge words “from the proceedings” of the House if he or she is of opinion that they are “defamatory or indecent or unparliamentary or undignified”. They are made under Article 118 of the Constitution which empowers each House to make its own rules of procedure. But if a law made by both Houses of Parliament cannot violate fundamental rights, nor can rules made by each House.
The House of Commons Speaker enjoys no such power. He can ask the MP to withdraw his remarks and if he fails to do so he can suspend him. This is a purely Indian innovation. Articles 105(3) and 194(3) empower, respectively, Parliament and the state legislatures to define their powers, privileges and immunities “by law”.
But add that, “until so defined,” they shall be those of the British Hou-se of Commons “at the commencement of this Constitution” — January 26, 1950. This is still the position. The 42nd and 44th amendments made cosmetic changes.
In 1958, the Supreme Court ruled that “the House of Commons had at the commencement of our Constitution the pow-er or privileges of prohibiting the publication of even a true and faithful report” of the proceedings and also that the privileges prevail over the fundamental right to freedom of speech.
It said that “the effect in law of the order of the Speaker to expunge a portion of the speech of a member may be as if that portion had not been spoken”. No such statement occurs in any authoritative work. It was pure ipse dixit.
After 1950, the House of Commons moved beyond its ancient rules on publication of its proceedings.
Two distinct issues are involved. One relates to the supremacy of the fundamental right to freedom of speech over parliamentary privileges, the other to the Speaker’s power to order expunction of words spoken in the House from the official record. In India, Speakers have gone further — a newspaper may not publish the expunged words either.
House of Commons clerks enjoy high prestige. They edit successive editions of Erskine May’s Treatise on Parliam-entary Practice, which is why House committees seek the clerk’s written opinion. A memorandum by the clerk of the House to the committee of privilege dated May 9, 1978, settles the issue. It was on Expunging Entries from Proceedings. It is set out in extenso as it is hard to come by. “It has been suggested that a possible cure for the matters which gave rise to the current reference to the committee is that the Speaker should have a power to order the words to be expunged from the record if it transpires that something is said which ought not to have been said. At present, the Speaker has no such power. The House itself has a power to order entries to be expunged from the journal and has exercised this power on rare occasions, though the manner in which the orders have been executed has varied.
I am of opinion that the House a fortiori has the power to order the expunging of words recorded in Hansard, (the official record) though it has never in fact done so.”
“Even assuming that the House were willing to impose such a duty on a Speaker, and a Speaker were willing to accept it, I doubt if it would solve whatever mischief were considered to exist in the present situation. As far as any right or duties the press may have, they rest on reporting proceedings in Parliament, not in quoting the official report…”
“Hansard is as faithful a report as can be produced of what is said in the House. To bowdlerise Hansard in this fashion would be to pretend that words which undoubtedly had been said had never been said at all. In that event, Hansard would cease to be a faithful record.”
The possibility of the Speaker ordering the press not to report was rejected. We live in times when TV channels carry Parliament’s debates live. The newspaper reader can’t be denied a right to read what he had already heard on TV. In any event, the power of expunction is confined to the records of the legislature. In 1834, Macaulay acknowledged, “In our time, the audience of a member of Parliament is the nation. The three or four hundred persons who may be present while a speech is delivered may be pleased or disgusted... but in the reports which are read the next day by the hundreds of thousands, the difference between the noblest and meanest of figures, between the richest and shrillest tones, between the most graceful and the most uncouth gesture vanishes.” Nearly two centuries later the citizen has acquired greater rights to know.
The writer is an author and lawyer based in Mumbai
By arrangement with Dawn
Download the all new Deccan Chronicle app for Android and iOS to stay up-to-date with latest headlines and news stories in politics, entertainment, sports, technology, business and much more from India and around the world.
