Manish Tewari | Revive democracy, codify parliamentary privileges

The recently concluded Monsoon Session of Parliament witnessed the arbitrary suspension of parliamentarians across Opposition parties on specious grounds without being afforded an adequate opportunity to present their case either before the privileges committee or before the concerned House itself.

Even though a suspension from the House may ostensibly be temporary or even for an indeterminate period of time, the fact such suspension at all takes place without providing an opportunity to the concerned member to be heard before any action is initiated is in violation of the fundamental principle of natural justice, Audi alteram partem (or audiatur et altera pars) — let the other side be heard as well.

At present, decisions regarding the suspension of a Member of Parliament are made through Rule 374 and Rule 256 of the Lok Sabha and Rajya Sabha Rules of Procedure and Conduct, respectively. Under these rules, a Member of Parliament can be suspended immediately upon a motion being introduced and put to a vote without being afforded an opportunity to be heard before the said motion is put to vote.

Such actions circumscribe the principle of free speech and expression — a sine qua non of any parliamentary democracy — for it takes away or at the very least strongly abridges the right to represent constituents, either territorial in the case of the Lok Sabha or the state they represent in  case of the Council of States.

This procedure subverts the essence and substance of Article 105 (1) of the Constitution of India that states. “Subject to the provisions of this constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.” This freedom of speech includes the right of dissent, the right to offend, the right to say even the sharpest words is the bluntest manner possible without, of course, resorting to expletives and as the Late Arun Jaitley used the operative phrase, “there are but rare occasions in history when parliamentary obstructionism is a part of legitimate parliamentary tactics”.

The rare has unfortunately become routine for an obtuse government refuses to discuss issues critical to the very idea of our nationhood. The Opposition having to resort to a no-confidence motion to force a discussion on Manipur being but the latest attempt to surmount the cussedness of the Treasury benches.

The history of parliamentary privileges can be traced back to the Privileges of Parliament Act passed in 1512. This Act served as a shield to protect representatives from the monarch’s suppression of dissenting voices. England’s history is marked by deliberate attempts by monarchs to seize power and limit the influence of Parliament. The foundation of modern parliamentary privilege can be found in the Bill of Rights of 1689. This bill enhanced the privileges guaranteed to Parliament, and provided legitimacy to Locke’s principle of constitutionalism, thereby introducing regulations to restrain the unchecked power of the sovereign.

Regrettably, little progress has been made in further developing the existing framework of parliamentary privileges in India since 1950. The Venkatachaliah Committee, established in the early 2000s, proposed changes to constitutional provisions concerning privileges. However, to date, no action has been taken to pursue these recommendations. Furthermore, the absence of a concrete framework has created a void that cannot be filled by the existing Rules of Procedure for the Conduct of Business in the Lok Sabha and Rajya Sabha. Rules governing parliamentary conduct cannot disregard the core jurisprudential principles  that underpin a parliamentary democracy.

The current set of rules grants wide discretionary power to the presiding officers of either House. Though the conventions of Parliament envisage that the presiding officers must act as impartial umpires in interpreting parliamentary rules and tradition, the safeguards to make their autonomy absolute have still not been put in place.

By way of example in the United Kingdom there is a convention that the outgoing Speaker is assured of re-election with the rival parties not putting up candidate in his/her constituency. Once re-elected there is an implicit assurance of continuity as Speaker even if his/her party is not the one forming the government. 

In this manner, the Speaker becomes substantially non-partisan dehors personal biases and ideological predilections ensuring respect for the doctrine of natural justice, in particular the maxim of “nemojudex in causasua”, or no one should be a judge in their own case which becomes difficult to uphold if the person concerned has to seek a ticket for re-election from his original political party and then has to depend on that party’s machinery for victory.  The presiding officer of the Council of States is, however, much better insulated in terms of Article 67 of the Constitution of India to perform his functions as the ex-officio chairperson of the Council of States in a non-partisan manner.

To codify parliamentary privileges the recommendations concerning the same as outlined in the Venkatachaliah Committee report must be implemented. A tribunal with the authority to adjudicate complaints related to breaches of privilege by Members of Parliament and of MPs must be established. This tribunal should consist of the following members: (1) The Chairperson of the Rajya Sabha or the Speaker serving as the Chairperson as the case maybe for the house concerned whose breech of Privilege or of Member thereof is being adjudicated. (2) The Leaders of the Opposition in the house concerned whose breach of privilege or of the Member thereof is being adjudicated (3) A sitting Supreme Court judge nominated by the Chief Justice of India.

It also needs to be ensured that all written or even verbal communications made by any parliamentarian to the Speaker/Chairperson or any Union minister/ minister in the state government or any other Central/state government official, public or private sector functionary or any other person be regarded as privileged communication qua the member concerned. Members of Parliament must have a right to audience in all courts of law on issues of public interest, notwithstanding whether they are lawyers or not. A member of the Lok Sabha represents, on an average, close to two million of the electorate and may have close to another million more living in his territorial constituency. Similarly, a member of the Council of States represents vital state interests for India is but a union of states.

The privileges so codified must ensure that no member should face unwarranted interference, threats, obstruction, or assault while performing their parliamentary duties.

In conclusion, to fortify democracy, address biases and strengthen oversight, it is must that parliamentary procedure is revisited and it is ensured that a proper legal architecture is provided to parliamentary privileges.  

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