The speech on ‘signs of fascism’ delivered on the floor of the Lok Sabha by Trinamool Congress (TMC) Member of Parliament Mahua Moitra was well received by the liberal establishment. Commentators lauded the speech as a much-needed onslaught on the Bharatiya Janata Party (BJP) government, delivered for the first time with such conviction from inside the house.

The speech chided the government for its alleged attacks on free speech and democracy. Next surfaced reports of the speech being plagiarised from a New York Times article on a similar subject. The volley of accusations and counter-accusations continued on the social media, as it should, in a healthy democracy.

But then this new voice of liberals did something unimaginable: she initiated a breach of privilege motion against the editor of the news channel, which had run the report on plagiarism. While this may seem innocuous and inconsequential as most motions in Parliament do today, ‘breach of privilege’ motion has a dark history. It has been used as a tool to silence critique by legislators with some disastrous effects.

A Dog-Law Invoked By A Champion Of Free Speech

Article 105 of the Constitution provides that Parliament shall have the same powers, privileges and immunities as did the British House of Commons at the commencement of the Constitution. Parliament has also been given the power to codify these privileges but they haven’t been codified thus far.

Upon first reading, this is a dog-law, which does not define with any clarity what these privileges of Parliament are. Any reasonable person cannot be expected to know with any accuracy what conduct will lead to contempt of the house and thus lead to breach of privilege motion against him. The privileges of the House of Commons exist as customs and precedents, which are themselves uncodified. This presents a recipe for misuse and misused it was.

The Ghastly History Of Parliamentary Privileges

The first recorded instance of use of this privilege was when the deputy editor of Blitz was detained beyond 24 hours without producing him before a magistrate, after the Speaker of the Uttar Pradesh Legislative Assembly asked for his presence. The first notable case, however, was The Searchlight-I case. Pandit Sharma, the editor of Patna English daily newspaper The Searchlight, invited the wrath of the legislative assembly of Bihar by publishing extracts from proceedings of the legislative assembly including certain parts, which had been ordered to be expunged by the Speaker.

A show-cause notice was issued to him. Ruling on this case, the Supreme Court, however, toed the line of the legislature holding that Article 19(1)(a) (freedom of speech) had to be constructed ‘harmoniously’ with Article 105 privileges of the legislatures. Reasoning thus, it held that the privileges under Article 105 were not wholly restricted by the freedom of speech guaranteed in the Constitution and, therefore, must yield to special parliamentary privileges. The courts thus genuflected before the legislature giving it power to completely throttle free speech.

More graphic, perhaps, was the Uttar Pradesh Assembly case. On 14 March 1964, the Speaker of the Uttar Pradesh Legislative Assembly issued a notice for breach of privileges against Keshav Singh for his pamphlet that criticised a serving legislator. Later that day, the Speaker issued an arrest warrant against Keshav Singh.

Consequently, Keshav Singh was detained for seven days at the district jail in Lucknow. When the Uttar Pradesh High Court granted interim bail to Singh, the state legislature ordered that the judges be arrested and brought before it. Hearing this case, the Supreme Court took a relatively firmer stand holding that personal liberty could not yield to parliamentary privileges when constructed ‘harmoniously’ and the privileges of the Indian Parliament were different and much restricted than those of the British House of Commons.

Procedural propriety had to be followed when exercising these privileges and fair hearing had to be given. Notably, it differentiated between ‘free speech’ and ‘liberty’ holding that while the former could be curtailed by Parliament (as held in The Searchlight case) restrictions on the latter had to pass a higher threshold.

Thus we see that until today free speech in India remains amenable to the whims of the legislature. The differentiation between free speech and personal liberty in dealing with privileges seems arbitrary, given that courts have held in other cases that rights do not exist in watertight compartment but flow through each other.

More recently in 2003, the Tamil Nadu Legislative Assembly sentenced N Ram of The Hindu and several other journalists to imprisonment. In a scene that was captured by several cameras, many policemen in riot gear descended on the offices of The Hindu. The newspaper next day carried a stinging rebuke of this colonial remnant of a ‘breach of privilege’ motion.

However, when Mahua Moitra moved it a few days back, none from the media wrote a word against it. The motion was rejected, but the mere invocation of this motion is a naked display of the double standards around democracy that pervades the TMC. Instead of invoking civil defamation laws, the MP sought fit to claim her ‘privilege’ to silence the media.

A Case For Curtailing The Spectre Of Parliamentary Privilege

Such a wide parliamentary privilege is a colonial remnant ill-suited to the Indian democratic setup, one which does not consider Parliament as the sovereign authority. Even in the UK, privileges evolved as a defence against the Crown’s excesses against Members of Parliament and to limit the powers of the Crown. In the UK, where it evolved, Parliament has stopped invoking privilege to double down on such reports which merely defame the MPs.

There is a need to codify these privileges to provide clarity on what exactly is forbidden speech. Such codification will also allow courts to test the parliamentary privilege on the touchstone of fundamental rights. Dr B R Ambedkar in his speech in the Constituent Assembly hoped that Parliament would codify such privileges. But today, parliamentary privilege is being invoked to break the will of the powerful on uncomfortable media reports. Liberals seem to have forgotten Ambedkar’s advice on counter-majoritarianism.

Amlan Mishra

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