Delivering the inaugural annual lecture of Advocates' Association of Western India (AAWI) in association with Debrief, a legal collaborative, Justice Uday Umesh Lalit spoke on the topic- "Parliamentary privileges and a citizen" on Saturday morning at the Central courtroom of the Bombay High Court.
"Justice Shambhaji Shinde, Chief Guest of today's function, all the honourable judges of the high court, Advocate General of Maharashtra, all the eminent lawyers who are present here, ladies and gentlemen, two corrections before I start.
First, the topic that was suggested, the reason I declined is that it's a hot topic, there are litigations that are pending and are likely to come up before the Supreme Court at any stage in the future. That's one of the reasons why I said that don't make me speak on that.
Thereafter, referring to being addressed as a judge who authored the triple talaq judgment, Justice Lalit said - Next correction is that I am not the author in triple talaq, it is Justice RF Nariman and I had signed that judgment I accept what he has said. Those are the two corrections.
Such a nostalgic thing to be here, such a wonderful courtroom, you have the father of the nation, the father of the constitution and the man who was tried here, Lokmanya Bal Gangadhar.
Now, what exactly are the parliamentary privileges, they are all those ideas which enable your representatives to function smoothly, to enable the house to function smoothly without any hindrance, without any obstacle. It is some substance or amalgamation of that which is normally referred to as privileges of the house of the parliament.
Now, what I wish to speak on the topic is the way a citizen, perhaps may find himself to be at the receiving end of the processes, pursuing the exercise of these privileges. About ten places where these privileges have been referred to, have been touched upon, have been discussed, but to start with, Article 105 refers to four principles.
Sub-Article 1 guarantees freedom of speech and expression but comes with subject to the constitution. Sub Article 2 says no person shall be liable for anything done or anything spoken in the house. Now, this begs the question, shall be liable where? The father of the constitution says naturally in the court. But when we argue that the court says that sub-article 3 has two facets that in fact is the subject matter of description in most of the cases. The first say that the parliament shall have the right on the defining or deal with any of the privileges. So, the power is given to the parliament there is a corresponding power in this one. The second part says, till such exercise of power by the parliament there shall be the pro-tem management. So, whatever was exercisable and available or enjoyed by the house of commons as on the day when the constitution came and took force such privileges shall be enjoyed by the parliament at that time.
Sub article 4 states that the privileges shall not be confined to the members of the house but people such as officials or persons like say attorney that shall be addressing the house or the committees are required to address shall enjoy such privileges. The attorney general shall get that privilege when he addresses the house.
Now let's see the tussle and how does it actually arises in the very first case the case in 1934 in the Supreme Court where Homi Dinshaw Modi came to the arrested after an order by the speaker of UP assembly. He was taken in custody not produced before a magistrate within 24 hours, so habeas corpus was issued by the supreme court.
It came up before a bench of five and it was ruled that if a man is not produced before a magistrate within 24 hours of arrest, the custody becomes invalid. It's just a one-page order, he was directed to be released. Now that's first case where in the exercise of power or breach of privilege was actually set aside. Not exactly set side but released from custody. So that was the first case.
Second case what we normally call Pandit MS Sharma's case. There was one member of the Bihar legislative assembly who spoke on the floor of the house against the then chief minister, who also happened to be the chairperson of the privileges committee at that time. The speech of that MLA was then published in a newspaper. Thereafter, the notice of privilege was issued under the orders of the speaker which resulted in the filing of the petition under section 226 in Patna High Court.
One of the issues which actually came up, in this case, was regarding the right under Article 19(1)(a) which is freedom of speech and expression which are guaranteed by part 3 of the constitution which is subject to only those restrictions which are under 19(2). And that is why, subject to the provisions under 105(1), subject to the provisions of the Constitution, free speech is guaranteed in the Parliament. So, subject to Constitution, would it not be subject to 19(1)(a)?
The privilege which was exercised was that it is normally taken that whatever happens within the confines of the house cannot be published. So, there was no authority Pandit MS Sharma had to publish it. Now in today's world, we have live telecast which runs through all the sessions of the house. One of the reasons why the dissenting Justice K Subbarao goes on the point that this privilege has become obsolete now this was in the days when there used to be constant tussles between the house of commons and the crown.
This was in the days when House of Commons used to be struggling hard to actually gather and accumulate so many privileges and there used to be virtually incidents where the Crown or the King would be going on inside the use and therefore to claim that privilege they would openly authorise that man so he should be able to publish what goes on inside the House and the proceedings of the House. So, that's one of the reasons why I was saying that it has become obsolete now. These are all 16th -17th-century privileges that you're claiming. In today's world, it is obsolete.
There is just one passage which is very crucial. The majority judgment accepts the possibility that even if there was any enactment by the Parliament, because there is a legislative power to the Parliament, and corresponding power given to the State Legislature to define your privileges.
How will Parliament define the privileges, unless you have an enactment? If an inactive law dealing with privileges were to violate any of your fundamental rights, then going by the normal principle of Article 13, such a challenge would be entertainable. That it violates my fundamental rights. But since there is no such enacted law, we go not just after the first part of 105, but the second part of 105, the protem arrangement."
Referring to the decision of Allahabad High Court in Keshav Singh vs Speaker, Legislative Assembly, Justice Lalit said-
In this case, the likes of Nani Palkhiwala, HN Seervai, MC Setalvad, Ram Jethmalani, then advocate general JM Thakur, Kalamzad Mishra, MK Nambiar appeared. All these stalwarts were involved in the matter. Now let's see how the matter actually went on.
The charge was taken by the speaker of the house and notice for breach of privilege was issued. Two judges of the high court entertained the petition and granted relief. The immediate reaction was that the how could judges of the high court interfere with the process of the issue by notice. So, breach of privilege notice now alleges to judges of the court and the lawyer as well as the lawyer Solomon. This then generated further difficulty so full bench of Allahabad High Court of 28 judges sat together and decided the case.
And all 28 judges said, the judges were doing their job, their duty, so they could not be subject-matte for breach of privileges. They restrained the Speaker of the House from going ahead with the notice. That resulted in a presidential reference under Article 143. That's how the matter came up before the Supreme Court.
Now coming back to the point which was picked up by Justice K Subba Rao. Justice Subba Rao said that this will definitely be violative of 19(1)(a), why did he say that? He said that founding fathers have given the parliament the power to define the privileges and till such time they don't whatever was available to the house of commons is supposed to be available to them. If the enacted law itself violated fundamental right it could be held bad. So that's the line Justice Subarrao was taking up.
The majority judgment of the Supreme Court says there is no definition of privileges. 50 years have gone by but no House is able to ever define privileges. The reason is very obvious. If you define there won't be a challenge."