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  • Writer's pictureBrain Booster Articles
    • Feb 9, 2021
    • 8 min read

TO SPEAK OR NOT TO SPEAK

Updated: Feb 9, 2021

Author: Anshu Prasad, III year of B.A., LL.B. (Hons.) from National University of Study & Research in Law, Ranchi


Co-Author: Tushar Ranjan, II year of B.A., LL.B. (Hons.) from National University of Study & Research in Law, Ranchi.



Abstract

This article focuses on the relationship between article 19 and parliamentary privilege. Parliamentary privilege is essentially an extension of the right to freedom of speech. This article will discuss how this freedom of speech is impacted in day to day life and how that necessitates such an absolute privilege in the course of legislative affairs.


Introduction

Article 19 of the Indian Constitution every student learns at high school of the right to freedom of individuals in a liberal state. However, later on, the student is taught that this right is not absolute. Art. 19(a) embodies the idea of free speech and expression of citizens of India with reasonable limitations in order not to affect morality and decency or incite other people or entities. These limitations prevent citizens from exploiting their right to the detriment of other people. Citizens have to practice this right under required restraints which promote the well-being of a nation. It is, however, not the premise of parliamentary freedom. Parliamentary privilege lets members of parliament exercise their right to speech uncensored. However, is this privilege all expansive? It is not. It can be exercised by members only within the parliament.


Critique through free speech is essential. Criticism enables us to criticize the standards of decisions taken by the governing bodies in any country. But these organizations can exploit their authority, one such means is through labelling this criticism as seditious. Sedition[i] means to use speech for inciting people against the government. This provision is wrongfully used sometimes, by some authoritative figures to control the dissent against the government. This has been seen according to NCRB Report 2019[ii], 194 cases of dissent have been registered[iii] since CAA was passed on 11th December 2019. This figure increases suspicion towards the government considering that they have over the years imposed Section 144 of CrPC and false sedition cases to shut down dissent against its laws. This was most recently witnessed in 2019 where UT Khader practised dissent against the newly passed CAA law[iv] and was booked under section 124A (Sedition) and Section 153A (promoting enmity amongst members of a race, religion etc) of the Indian Penal Code. UT Khader is the MLA from the Mangaluru constituency and former Karnataka Minister. This, therefore, shows the need for such parliamentary privileges. Parliamentary privilege allows parliamentarians to practice unbridled speech within the bounds of the parliament. It, therefore, allows free and fair stricture from the members of the parliament.


The legality of Parliamentary Privilege

Section 105 in the Indian Constitution provides civil and criminal immunity to parliament members from any statement made within the bounds of the parliament. In the state legislatures, this right is under Article 194(2) of the constitution. A parliamentary privilege is an absolute form of privilege. Here, no action lies for parties even if the statements are false and defamatory and made with malice. It is based on the principle that the community interest overrides the interest of an individual. The material interest here lies to ensure that no law restricts any member from expressing what he wants to say fully and freely. The courts and the parliament recognize that no objection is sanctioned about anything that happens within the four walls of the parliament in performance of legislative functions.


The Supreme Court questioned the legality of this provision in the case of Raja Ram Pal v Hon’ble speaker[v]. It defined the term privilege as "A special right, advantage or benefit conferred on a particular person. It is a particular advantage or favour granted to one person against another to do certain acts”. Inherent is something, apart and distinct from a common right which is enjoyed by all persons and connotes some sort of special grant by the sovereign. The term 'Grant by the sovereign' refers to the privilege conferred to them by the higher authority and the immunity is only to such members. This provision was inspired by the privileges of the house of the commons in England.[vi]


Why Parliamentary Privilege?

Parliamentary privilege, in its essence, goes against the basic premise of Article 19. It mandates the limitation of the right to freedom of speech according to reasonable standards. Parliamentary privilege goes against the main principle. It allows any party within the legislature to scrutinize even as to the level of defamation. Anything which is beyond the reasonable criticism under Article 19 becomes seditious. Humans are gifted with the ability to speak, but this ability also comes with responsibility. This responsibility entails that people do not use this speech to bring hatred to a person or any organization. The primary thing which remains is how much hate is allowed and what is barred? Provisions based on subjective procedures bring out the element of arbitrariness in these procedures which get exploited.


Defamation of state can make speech seditious in its conduct. Many people who are called seditious have their voiced concerns against the failure of the government machinery. For example, Siddique Kappan was accused of sedition for covering incompetence of the police in the Hathras Rape case[vii] along with under UAPA for allegedly going to cause “social unrest”. Such examples show how easy it is for the government to mask healthy criticism of government policies. Hence, parliamentary privilege is necessary to prevent critical speech from being labelled as seditious. In the parliament, these members can hold members accountable for all such wrongdoings without the fear of being incarcerated.


India saw such exploitation blatantly in the passage of the Citizenship Amendment Bill, 2019[viii]. Even so, that government swept any criticism of the bill under the rug. However, in the case of parliamentary privilege, dissent cannot be so easily removed. This phenomenon is eventually damaging to the economy. Two female students - DevanagaKalita and Natasha Narwal, who are also the founders of Pinjara Todd, got arrested for protesting against this bill[ix]. It tells a tale of how lawful entities can act as shape-shifting demons with an avowed objective of silencing those who criticize the government. Parliamentary privilege thus helps in increasing the accountability of governments by consistent and uncensored criticism of governmental policies. This privilege, however, can only be practised within the bounds of the respected parliament within their tenure.


Advantages of parliamentary Privilege

One of the advantages is that this helps in keeping the government accountable for all its acts. It reflects the democratic accountability of elected candidates to the public. It helps in enhancing the role of the opposition parties who can point out flaws in governmental policies. It ascertains the fact that opposition members can criticize members without the fear of being reprimanded. This privilege also lets the parties go against the members and have uninterrupted retaliation against the policies and question every nook and cranny in legislation and parliamentary speeches. This privilege incorporates the necessary evil of democracy, dissent. As pessimistic it sounds, it ensures that the authorities know that institutional checks are in place to tame governmental power.


Disadvantages of parliamentary Privilege

One of the disadvantages is that the opposition is not all expansive because this privilege only verbally demands culpability rather than substantive. It enables the members to get away with claims with no real liability to implement their promises efficiently. Also, this provision allows parties to criticize parliamentarians with self-interest rather than as beneficiaries of the nations. Members can interrupt ongoing sessions with unparliamentary speeches and hurt the efficiency of the sacred parliament. Opposition leaders often create an unruly situation with constant protesting and behaving like hoodlums. This happened in Sept 2020 during the discussion of farmer bills[x]. All social distancing and Covid-19 related precautions were violated by some members of the upper house yesterday. “It was a bad day for the Rajya Sabha.” Some members came to the well of the House, threw paper, reached (for the) mike of the deputy chairman, hurled papers at him and abused him. Even the rule book was thrown. Some of the members also accepted outside that they did it,” he said. It shows how reckless behaviour is a usual affair for the parliament. As many as eight opposition members were suspended that day. Philosophers have always grappled with the question of what freedom is too much freedom.[xi] Such instances show how sometimes these freedoms need to be practised with reliability and responsibility. And with increasing unruliness of the parliamentarians is this freedom provided to the appropriate personalities?


Should This Privilege Subsist?

The difference between Article 19 and Parliamentary privilege is the ungoverned criticism that is authorized by the latter. It is of significant importance to address where this restraint should be practised or not? A well-balanced approach is crucial. There should be times where such privilege should exist to practice unfettered criticism while other times there should be moderation so that democracy remains functions placidly. So parliamentary privilege is the best solution for us. It gives the right to the elected members by the populace to question the executive without any fears. So while Article 19 grants citizens the right to practice their freedom of speech, the constraints facilitate smooth functioning of the democracy. It is not to say that only parliamentary members practice dissent but that the society will not be exposed to militant tendencies while dealing with criticism of laws.


Members of democratic countries do have the right to dissent through demonstrations and peaceful assemblies. Non-confirmation with regulations is an essential aspect of democracy. Each culture embodies in itself the right to object. But, when this dissent gets labelled as contempt, we tarnish a rightful ideal into an anarchist. Many student voices get oppressed on the premise of being unnecessarily political, but who decides what is necessarily political. Right to dissent is a necessary evil which has to morph into a protest now and then. When opposition against policies is shut down forcibly, we deprive individuals of the capability of healthy criticism. Parliamentary privilege qualifies itself as a necessary evil which is of utmost importance to democracy.


Conclusion

India has witnessed several injustices such as Emergency, CAA and many other harmful situations in the past. Although parliamentary privilege cannot be a be-all and end-all protection for any future injustices, it can be one of the essential protection mechanisms a society should have. It might also have been the result of a similar vision of the distinguished constituent assembly members who from the very start provided legislators with such a valuable mechanism. Thus, Article 19 and Parliamentary privilege are both important to us for paving our way into a more democratic and representative country.


[iii]The Hindu, https://www.thehindu.com/opinion/op-ed/should-the-sedition-law-bescrapped/article30993146.ece#comments_30993146 (last visited Jan. 10, 2021).

[v]Raja Ram Pal v Hon'ble Speaker, (2007) 3 SCC 184.

[viii]Bill No. 370 of 2019


Authors' Biography

1. Anshu is a 3rd-year B.A.LLB(Hons.) student at National University of Study and Research in Law, Ranchi. He is inclined towards research work particularly in the field of Criminal Law & Constitutional Law. He had done various internships and is good at research work, writing articles, preparing case briefs. He has even done research on various topics relating to Criminal Law & Constitutional Law and had even written a number of articles & case briefs on the different topics under the same.


2. Tushar a second year student currently pursuing B.A.L.L.B. Hons. proficient with legal research and drafting with an interest in Intellectual Property Rights and Criminal laws.

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