Wednesday, October 10, 2012

It is jeopardous when anything is everything

(First appeared in The Pioneer dated October 3, 2012)


In the middle of August this year, the Chief Minister of West Bengal, Ms Mamata Banerjee, said that judicial verdicts were purchasable. “Many times favourable verdicts are given in lieu of money. Why should that happen? This is very unfortunate”, she stated. Her remark had triggered a furious row, and it would have perhaps invited some legal action had it not been for the fact that she made the controversial statement on the floor of the West Bengal Assembly and, therefore, she enjoyed immunity from judicial arbitration.
While that issue has died a quiet death, the question of whether Members of Parliament and Legislative Assemblies should enjoy such absolute immunity from court action over even their most outrageous statements (or actions), remains as relevant as ever. This, despite the fact that the courts have time and again, in case after case, determined in unequivocal terms that immunity from legal action which these elected representatives have over what they say in the House is complete.
This is where things stand at present. But we do not know what the future holds. After all, the Supreme Court has over the years interpreted in fresh ways many laws that govern the relationship between the legislature and the judiciary, even going to the extent of arbitrating decisions of the Speaker of the House. Before that first happened, it had been assumed that the Speaker’s actions in Parliament and State Assemblies were supreme and unchallengeable in a court of law. But now that is no longer so.
The courts have in many instances set aside the Speaker’s rulings — for instance on matters of defection or suspension of members from the House or bar on members from voting. In fact, the courts have held that, while they will not entertain any plea against ‘procedural irregularities’ in the House, they shall most certainly admit petitions that challenge the Speaker’s action on grounds of ‘illegalities that go against the scheme of the Constitution’.
Still, there is nothing to indicate as yet that the judiciary will go to the extent of adjudicating on statements made by MPs and MLAs in the House, because that would be seen as snatching the right to free speech from these representatives. It is a right that they have been given — and in no uncertain terms at that — under Article 105(2) of the Constitution of India. Here is what the Article says, “No member of Parliament shall be liable to any proceedings in any court in respect of anything 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.”
The operative word here is anything — which has been held by the courts as equivalent to everything — and the judiciary has fallen back on that single word every time it was faced with a petition challenging a remark made by an MP or an MLA on the floor of the House.
Let’s take just one instance: The case of Tej Kiran Jain and Others versus N Sanjiva Reddy and Others, as an illustration. The verdict was delivered by a full bench of the Delhi High Court in August 1969 — yes, the issue had begun to crop up as early as that.  The plaintiffs had filed a suit claiming that, in the course of discussions in the Lok Sabha the defendants had made certain defamatory remarks against Jagadguru Shankaracharya of Puri, which were calculated to harm the spiritual leader’s esteem in the public eye. The issue to be dealt with was whether Article 105(2) indeed guaranteed complete immunity in respect of anything said by a Member of Parliament. The bench upheld that notion and said, “Plain reading of the Article goes to show that as regards anything said by a Member of Parliament in Parliament… the Constitution has guaranteed full protection and provided complete immunity against any proceeding in a court of law. It is significant that while clause (1) of Article 105 starts with the words ‘subject to the provisions of the Constitution’, there is no such limitation so far as clause (2) of Article 105 is concerned.” That pretty much settled the matter.
But the judiciary made an interesting and nuanced interpretation of the Article in the infamous PV Narasimha Rao versus State case in 1998, which related to allegations of bribery of certain Members of Parliament to help out a minority Government headed by Narasimha Rao. The Supreme Court was faced with a piquant situation: Can MPs claim immunity from prosecution under the cover of Article 105(2) on charges of bribery connected with their vote in a no-confidence motion against the regime? In a majority decision, the apex court held that MPs accused of taking bribe and then voting had immunity under the Article from legal action because their ‘action’ (of voting) in the House could not be questioned. However, the court added, those who allegedly took the bribe but abstained from voting, could not have that Article’s protection because they had not indulged in any ‘action’ in the House that would have given them immunity!
Why has the Constitution provided for such blanket immunity to elected representatives? It was to ensure that members are free from all limitations and constraints in raising before the House any issue that they believe assists them in better representing and serving the people who have elected them. It was believed that the fear of judicial action over what is said in the House would deter the elected representatives from taking up contentious matters that concern the people.
The intent of the framers of the Constitution was indeed beyond reproach. But then, they too must have not imagined that our Parliament and the State Assemblies would one day turn into a ring of physical brawls, where members literally try to outbox one another, uproot mikes and hurl them around like atomic weapons, snatch away important documents, tear them and scatter the bits in a show of triumph. The framers of the Constitution would never have imagined that a day would come when the vilest of comments would be made on the floor of the House by members against their colleagues and also against those unfortunate ones who not enjoy the privilege and protection that they do.
In the given situation where courts have their hands tied down by constitutional provisions, it is left to the collective wisdom of the House to take appropriate action against obvious and blatant wrongdoings that members indulge in on the floor of Parliament or the State Assemblies. Unfortunately, there are too few instances of that having happened to instil confidence in the people. There must be fetters to anything.

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