'Parliamentary Privileges And A Citizen':Highlights From Justice UU Lalit's Speech At Bombay HC

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...

'Parliamentary Privileges And A Citizen':Highlights From Justice UU Lalit's Speech At Bombay HC

Nitish Kashyap

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