By Bibhuti Bhusan Nandy
Speaker Somnath Chatterjee’s spat with the Supreme Court has acquired ominous overtones. A barrister of long standing, he fired his first salvo at the Court for “overstepping” its limits when it overthrew the action of the Governor of Jharkhand in foisting a minority government on the state.
He delivered his next broadside against the apex court after the latter struck down the IMDT Act as unconstitutional. His refusal now to respond to the Court’s notice in the appeal filed by one MP against his dismissal has raised the spectre of a constitutional deadlock in the country. There is no question that the reprehensible conduct of the delinquent MPs is a blot on Indian democracy, but the manner in which the Lok Sabha has expelled them is legally and constitutionally untenable. The decision to expel the petitioner MP and his nine compatriots is based on the highly ambiguous and ancient British law of privilege, dating back to 1689.
Codification of law
The fact that in the last 56 years Parliament has not codified the privilege law envisaged in the Constitution has sustained “a repressive anachronism” to this day. Article 102 of the Constitution and Schedule 10 thereof have specified the circumstances in which an MP becomes disqualified for membership of the House, but these are not applicable to the cash-for-question case. Ex facie, the decision to terminate the tenure of the MPs is questionable not only because their misconduct was not linked to any Lok Sabha proceedings, but also because the incriminating material against them — accepting money for asking questions — was obtained by a questionable sting operation and hence not admissible in evidence.
In taking the stand that the decision of the Parliament is non-justiciable, Speaker relies on Article 105 (2), which runs as follows: “No member of the 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”. The true import of this provision is that it provides MPs immunity from judicial scrutiny in respect of anything said or any vote given by them in the House. It is confined to participation by MPs in the proceedings of either House and does not extend to obviating their criminal liability and trial in a normal court of law.
The constitutional provisions intended to protect the individual freedom and also the federal character of our polity are focused on the application of the doctrine of separation of powers among the Legislature, Executive and the Judiciary. In diffusing the state powers, however, the Constitution has not hermetically sealed these organs from one another. Aiming to integrate the dispersed powers into a workable government, it has “enjoined upon the government branches interdependence and reciprocity by putting in place a set of appropriate checks and balances”.
Anyone who has grasped the true import of the doctrines of Separation of Powers and of Checks and Balances in their real time application would not question the Supreme Court’s jurisdiction to review the legality of the dismissal of an MP by Parliament. By moving the Supreme Court to transfer the appeals preferred by the other MPs against their dismissal from a High Court to itself for jointly hearing and disposal, the Union Government has acknowledged the Court’s jurisdiction in the matter, the contrary view of the Speaker and other lawmakers notwithstanding.
Parliament has been less than consistent in dealing with the cases of misconduct of MPs. In 1951, H G Mudgal had accepted a bribe of two thousand rupees for asking questions to promote the interests of Bombay Bullion Association. Parliament having found the conduct of Mudgal unbecoming, he lost his membership of the House. In the more recent case of bribe taking by some JMM MPs for voting in the Lok Sabha, the House let the normal criminal justice system operate, but the Supreme Court let off Narasimha Rao and others convicted by lower courts on the ground that under Article 105 Members of Parliament involved in bribe taking could not be proceeded against in any court.
The recent trend in the UK is against expelling members for misconduct. In 1994, the Guardian reported that two MPs, Neil Hamilton and Tm Smith, had taken money from Al Fayad, the Egyptian businessman, for tabling questions, receiving two thousand pounds per question. Instead of the House of Commons claiming privilege, Prime Minister John Major appointed Sir Gordon Downey to enquire into the matter, but before the enquiry was over, fresh election was held in the UK. The Conservatives lost the poll to the Labour Party.
BBC reporter Marlin Bell, supported by the Labour Party and Liberal Democrats, defeated Neil Hamilton. Tim Smith had resigned immediately after the publication of the Guardian report.
Michael Ryle, former Clerk of the Privilege Committee of the British House of Common thinks when a Member has clearly done a wrong and his fellow Members from both sides of the House come to know it, “the resulting damage to his reputation and career is probably sufficient punishment”. In the USA too, expulsions have been rare in congressional history because members prefer to let constituents decide whether or not to remove a sitting Congressman by simply not re-electing him/her. In 1980, the House expelled Rep. Ozzie Meyers caught on videotape by the FBI in an illegal cash transfer operation. Rep. Duke Cunningham resigned on 5 November 2005 from the Congress after pleading guilty to taking more than two million dollars as bribe in a criminal conspiracy from at least three defence contractors.
Parliamentary privilege is controversial because members can use it to make damaging allegations that would ordinarily be discouraged by normal laws without first determining whether the allegations have a credible factual basis. In Australia, such abuses have earned the Parliament the nickname “cowards’ castle” — a place from which a member can attack others, while enjoying immunity from such attacks. In the absence of any judicial redress such untrammelled powers of the legislature can turn into a recipe for parliamentary tyranny.
Parliamentary privilege acts as a trump that sets aside all other claims of public interest and consequently has the capacity to cause substantial injustice to individuals. For this reason, in the UK, US and Australia, it is being increasingly restricted to statements made during parliamentary proceedings. In the UK and Australia, the existence of power, privilege and immunity of the parliament has been made justiciable in the court of law, but once it is established that a privilege exists, it is for the House to determine the occasion and the manner of its exercise.
Equity and fair play
It is absurd to argue that the Supreme Court is debarred from hearing any appeal against the parliamentary decision. Such absolutism is repugnant to the principles of equity and fair play and violates Article 14 of the Constitution which provides: “The State shall not deny to any person equality before the law or the equal protection of laws within the territory of India”. It cannot be the case of the Speaker, or for that matter, the Lok Sabha that the dismissed MPs are non-”person” for the purpose of availing the protection of laws within the territory of India.
As recently as last year, the Canadian Supreme Court decided in Satman Vaid’s case that parliamentary privileges are not unfettered and human rights supersede parliamentary privilege in the event of a conflict between the two. In terms of this ruling, the Canadian House of Commons and its Speaker are no longer shielded from the application of the human rights law.
The Constitution of India has expressly laid down the primacy of fundamental rights over other constitutional rights. Article 32 guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution. The Supreme Court being the final arbiter of the validity and applicability of law (Article 141), Article 32 clearly overrides Article 105, which provides only a constitutional right.
The crying need for India is to enact a definitive a law of privilege as envisaged in Article 105 (3) of the Constitution. In addressing that requirement, Parliament should take a leaf out of the refreshing recent trends and modifications in the law of privilege in America and some Commonwealth countries.