ABSTRACT
The privileges provided to the members of Parliament and the members of the State Legislature enshrined under Articles 105 and 194 of the Constitution respectively are the requisite tools for ensuring a fearless and open expression on the pertaining matters in the house. These powers are classified broadly into two categories- to the members in their individual capacity and to the members collectively as the house. In this paper, the author has focused on the latter concerning the clash between the rights of a non-member and the privileges conferred upon the house. The paper delves deep into the discussion about whether the House has the power to initiate proceedings against an individual who is not part of the legislature and the nature of such discussions. Further, some relevant precedents are mentioned that establish the position of the law concerning parliamentary privileges. Now, it is to be noted that these cases were also referenced by the counsels in the case of Ajit Mohan & Ors. Vs. Legislative Assembly National Capital Territory of Delhi & Ors.(herein ,referred to as the Facebook case.) [1]Further, regarding the Facebook case, the analysis of the Delhi UT Legislative Assembly and its powers to initiate proceedings and summon an individual for the breach of privilege has been done. Finally, the judgment and the rationale of the court and the impact of the same have been elaborated.
Keywords: Privacy, Breach, Privileges, Powers, Rights.
INTRODUCTION
There are certain privileges inferred upon the members of parliament and the state legislature, providing them with certain immunities with regard to the actions or the wrongs committed by them. In common parlance, these certain privileges are known as parliamentary privileges. Now these privileges in forms of immunity granted to the members can be both, in terms of the statements made by them as well as actions committed by them. The primary aim of such privileges is to ensure that an open podium of deliberation and expression of views is granted to the parliamentarians whereby they can have robust and confident discussions on pertaining matters.
The problem arises when these privileges can sometimes conflict with the right to express an opinion and freedom of speech of a non-member. The house uses the privileges imposed upon it in such situations to call upon the non-member or to initiate proceedings. In the present paper, questions about the nature of such powers, whether they should be considered over-reaching, and if so, under what circumstances, and the relevant cases where such rationale has been applied, have been deliberated
During the discussion, the prime focus of this paper would be on the Facebook case where, the rationale that the Hon’ble Supreme Court gave in reconciling the parliamentary privileges with the fundamental rights of freedom and expression would be discussed.
RESEARCH METHODOLOGY
In the present research paper, the author has employed a doctrinal method of research, primarily collecting a secondary form of information. The author went through several articles, research papers, trusted sites, and blogs to analyze and assess the Trade-off between Parliamentary Privileges and the Right to Freedom of Speech and provide a concise yet precise deliberation of the Facebook caseand the rationale of the same.
REVIEW OF LITERATURE
Bhadra Sinha of The Print, in a news article titled “Why the Facebook summons case drew SC attention back to a case pending for 16 yrs now” discusses how the apex court by upholding the validity of the summons issued by the Committee of the Delhi Legislative Assembly brought up the 2003-05 case N.R Ravi vs. Legislative Assembly[2] and both of the cases deal with the breach of parliamentary privileges and what constituted the same.[3]
The Live Law News network in an article titled “Fundamental Rights vs. Legislative Privileges” deliberates about the apex court judgment in the Facebook case wherein it highlights the issues that lay before the court including the privileges with regard to the clashes of the same and the rights of the non-members. It further mentioned the precedents that were used by the learned counsels such as the Pandit MSM Sharma Case [4]and the Special Reference No. 1 of 1964[5].[6]
Rahul Narayan, in a news article titled “Legislative Privilege And Competence—Facebook (And The Union Of India) Vs The Delhi Assembly” talks about the role of state legislatures when it comes to dealing with the breach of house privileges. He concludes that it would be wrong to assume that the powers conferred upon the state legislature are limited in the sense that the house doesn’t have the requisite power to deliberate upon the pertaining matters or to summon non-members for the same. As per the principles of cooperative federalism as well as to expression of the popular will in the house, the discussion does have a persuasive value upon the parliament, for instance, at the time, when discussions on CAA were at their peak more than 6 states passed resolution against the same expressing their disapproval and upon the effect, it would have on their people.[7]
Agam Bansal, in a research paper titled “Parliamentary Privileges, Freedom of Speech and Judicial Review” explains the concepts of parliamentary privileges, freedom of speech, and their interrelation in the form of the clashes between the former and the latter. He enlists the articles of the constitution as per which the privileges have been conferred upon both the state legislatures and the parliament while simultaneously comparing the legislature privileges of various countries including the U.K. and the U.S.A.
There was a gap in research on the analysis of the current case concerning its impact on the extent of the power/privilege of a state legislature when it comes to summoning or initiating proceedings against non-members. This paper has tried to fill that gap by analyzing the same in context to the different clashes elaborated further in the paper.
PARLIAMENTARY PRIVILEGES
The Parliamentary privileges, enshrined under Articles 105, 118 and 194 of the Constitution of India, are certain immunities available to the members of the parliament and state legislature by virtue of which they can engage in a fearless and emboldened discussion of the pertaining matters.
Article 105 of the Indian Constitution reads:
“105. Powers, privileges, et c., of the Houses of Parliament and of the members and committees thereof.- (1) Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) 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.
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, [shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978].
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.”[8]
In the same manner, in Art, 194 of the Constitution, the powers of the same nature are provided to the House of Legislatures and the members of the state legislature.[9]
Further, there are broadly two kinds of parliamentary privileges–
- Firstly, privileges enjoyed by the parliamentarians in their individual capacity.
- Secondly, privileges enjoyed by the member collectively as a parliament.[10]
In the present paper, our discussion would be limited to the privileges that are enjoyed by the members collectively as a parliament.
Article 118 provides the house powers whereby it can conduct its proceeding in a manner which is unchallengeable in any court of law.
“118. Rules of procedure.- (1) Each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business.
(2) Until rules are made under clause (1), the rules of procedure and standing orders in force immediately before the commencement of this Constitution with respect to the Legislature of the Dominion of India shall have effect in relation to Parliament subject to such modifications and adaptations as may be made therein by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be.
(3) The President, after consultation with the Chairman of the Council of States and the Speaker of the House of the People, may make rules as to the procedure with respect to joint sittings of, and communications between, the two Houses.
(4) At a joint sitting of the two Houses the Speaker of the House of the People, or in his absence such person as may be determined by rules of procedure made under clause (3), shall preside.”[11]
Thus, the house has the right to conduct and regulate its proceedings in a manner that it deems suitable.
CLASH OF PARLIAMENTARY PRIVILEGES AND FUNDAMENTAL RIGHTS
Article 19(1) (a) states that all citizens have the right to freedom and expression.[12]
However there are certain restrictions imposed on one’s exercise of the right to freedom and expression These restrictions are mentioned in Article 19(2) of the Constitution of India, which includes “sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, morality or decency, contempt of court, defamation and incitement to an offence.” Only a ‘Law,’ not operative or departmental directives, can impose restrictions on rights under Article 19(1).[13]
Now when parliamentary privileges are exercised, sometimes it can lead to clashes between the same. For instance, in the case of Pandit MSM Sharma [14], who was at the time, editor of a daily newspaper, was summoned through a show-cause notice by the Committee of Privileges of the Patna Legislative Assembly. He contended before the Hon’ble Apex Court that the notice and the summon were in breach of his fundamental right to freedom of speech and expression and freedom of the press which is an integral part of the same.[15] The majority judgment while adopting the principle of “harmonious construction” held that the provisions of 19(1)(a) being general, must yield to the provisions of Article 194(1) and its other clauses, as the latter being specific. Further, the court put the onus of deciding whether the breach of privilege is done upon the discretion of the advice of the Committee to the House. Now, the latter part of the decision of the court concerning the onus has been overruled in many instances such as Raja Ram Pal,[16] where the apex court answered in affirmative when the question of whether the Supreme court “within our constitutional scheme has the jurisdiction to decide the content and scope of powers, privileges, and immunities of the legislature and its members”
In the present paper, two pertaining issues will be deliberated upon; these are:
- Firstly, the clash between the breach of the fundamental right to speech and expression of a non-member, when he/she is called upon to the house, and the proceedings are initiated against the same person. ( Whether a person’s fundamental right to speech and expression when he/she has been called to the house for questioning in regards to a particular statement made by him/her is violated)
- Secondly, the right/privilege of the house or the assembly to initiate proceedings against a person for breaching its privileges. ( Whether the house has the privilege to summon a non-member, and does it amount to exceeding its legislative powers)
Now through the case of Facebook, the prime focus of this paper would be on the latter clash, where the extent of the privileges of a state legislature has been deliberated.
FACTS OF THE CASE: THE CASE OF FACEBOOK VS GOVT. OF DELHI
The tragic outbreak of violence in Delhi, the nation’s capital, between February 24 and February 29 of 2020 included racial disturbances in various areas of North-East Delhi. The functioning of Delhi’s civic services was interfered with and there was a loss of life and property. It is needless to mention that, like any other episode of this kind, it took on a political overtone.
This caused a rift in the society, with people of all political persuasions pointing the finger at one another. The Delhi assembly formed a Committee to urgently look into the matter and found out the cause of the riot. Numerous thousands of complaints were filed, alleging, among other things, that Facebook had served as a forum for inciting hatred and endangering intergroup harmony. An article titled “Facebook’s Hate-Speech Rules Collide with Indian Politics” (“the Article”), which was published in the Wall Street Journal on 14.8.2020, further fueled this by implying that there was a widespread pattern of favoritism towards the ruling party and Hindu hardliners. Additionally, Facebook India was accused in the article of failing to adequately manage hate speech content.
Relying on its findings, the Parliamentary Committee( Standing Committee On IT Branch) issued a show cause notice to Mr. Ajit Mohan, Vice President and Managing Director of Facebook India to state Facebook India’s views on inter alia on the subject of “safeguarding citizens’ rights and prevention of misuse of social/online news media platforms including special emphasis on women security in the digital space.”. Mr. Ajit Mohan conformed to the notice and presented his views before the committee. Next, the legislative assembly committee (Committee on Peace and Harmony) summoned a notice to him “to deliver insights to the Committee with respect to Facebook India’s internal functioning and enforcement of policies in view of the special knowledge that he possessed.” With respect to this particular notice, Mr. Ajit refused to comply and didn’t appear before the committee on the date mentioned in the notice. In reply to his actions as well as the replies provided by Facebook India, the committee again summoned Mr. Ajit as well as Mr. Vikram Langeh (Director, Trust and Safety, Facebook India.) and simultaneously, it was conveyed to them that the non-compliance of the terms would result in the breach of the privilege of the Committee.
Facebook India, its parent Company Facebook. Inc.US., along with Mr. Ajit, then filed a writ of Mandamus[17] as well as Prohibition to the Hon’ble Apex Court[18] requesting the court to set aside the last summon order by the committee and preventing the assembly from taking any actions against the petitioners as per the Mandamus and Prohibition writ simultaneously.
ARGUMENTS ADVANCED
Petitioners: Firstly, the learned counsel for the petitioner argued that the petitioners in the present case are non-members of the assembly and hence cannot be summoned by the committee unless they intrude upon any functions of the assembly. Further, the powers of an assembly are limited to legislative functions in accordance with the doctrine of separation of powers as well as the legislative powers granted to the assembly by the Constitution. For establishing the same arguments, among many others, the reference of Amarinder Singh v. Special Committee, Punjab Vidhan Sabha & Ors[19] was made in which the Apex court had reprimanded the Punjab Vidhan Sabha for exceeding its power by expelling the appellant on the ground of breach of privilege when the same was not found as well as the nature of the actions of the appellant pertained to the domain of the executive. It was found that the act did not in any way whatsoever obstructed the legislative proceedings of the assembly; hence, no breach of privilege occurred.
Further, the petitioner’s counsel argued that there is no restriction on the courts to scrutinize the validity of the house proceedings, for which he referred to Art. 212 of the Constitution read along with the pertaining provisions of the GNCTD Act. Also, regarding freedom of speech and expression, privileges cannot be a tool to suppress the same, even a mere threat to the rights can result in a violation, and that too when the party is an American Organization.
Respondents: The learner respondent counsel argued that there existed no notice regarding the breach of privilege was given hence the matter of breach didn’t arise at all. Secondly, he emphasized the fact that petitioners’ arguments would destroy the functioning of the committees all over the nation and the nature of their powers would be limited and the petitioners cannot and should not have the privilege to choose when to and when not to appear before the committee as per their discretion and privilege. Further, he argued that under normal circumstances, the apex court does not interfere with the proceedings of the committee of a House.
JUDGEMENT AND RATIONALE OF THE DECISION
The Hon’ble Apex Court in a 3 judge-Bench judgment upheld the validity of the summons issued by the Committee of the Delhi Legislative Assembly rejecting the petitioner’s arguments saying that it doesn’t have the requisite power to do so to a non-member. The court further emphasized that the functioning of the committee is not limited to just legislative or law–making functions, but also engaging in discussions pertaining to the security and well-being of the nation and its citizens. The court refrained from entering into any discussion pertaining to the expansion of the purview of the fundamental right of speech and expression as the same is still lying before a 7-judge bench (N. Ravi v. T.N. Legislative Assembly)[20].
Further, the Bench held that the doctrine of separation of powers should always be respected to maintain the cooperative federal nature of India. The committee can deliberate on the questions pertaining to “peace and harmony” and not to the subject of “law and order” as the same has not been permitted to the assembly as per Entry 45 of List III. Following this, the Peace and Harmony Committee had all the right to discuss the aspects which pertained to the disturbance of peace and harmony in the society without encroaching in the domain of the Union government thus, summoning the petitioner and the privilege exercised being within the powers of the Legislative assembly.
CONCLUSION
The constitution has empowered the legislature with a wide ambit of powers which if used in an overreaching manner might sometimes appear to encroach into the territory of judicial review of courts. It cannot be denied that parliamentary privileges are crucial paraphernalia to ensure that an open podium of deliberation and expression of views is granted to the parliamentarians whereby they can have robust and confident discussions on pertaining matters. The privileges of the House are not only confined to legislative functions but also encompass the deliberation and discussion regarding the security and well-being of the state and its residents. Further, the judgment of the Apex Court is a welcome step in solving the nuances of the debate on the extent of the privileges conferred upon the legislature. The legislature should take into consideration the rights of the non-members including the right to freedom of speech and expression before embarking on the assumption of the breach of privilege of the house. Only by reaching a consensus and maintaining a balance between the privileges and the rights of the non-members could lead a final acceptable solution for both stakeholders.
Name- Pranjal Srivastava.
College- Maharashtra National Law University, Nagpur.
Year- 2nd.
[1] Ajit Mohan & Ors. Vs. Legislative Assembly National Capital Territory of Delhi & Ors, L.L. 2021 S.C. 288.
[2] N.R Ravi vs. Legislative Assembly, (2005) 1 S.C.C. 603.
[3] Bhadra Sinha, Why the Facebook summons case drew SC attention back to a case pending for 16 yrs now, THE PRINT, (July 13, 2021, 08:00 AM) https://theprint.in/judiciary/why-the-facebook-summons-case-drew-sc-attention-back-to-a-case-pending-for-16-yrs-now/694474/.
[4] MSM Sharma vs. Shri Krishna Sinha, A.I.R. 1959 S.C. 395.
[5] A.I.R. 1965 S.C. 745.
[6] The Editor, Fundamental Rights vs. Legislative Privileges, LIVE LAW NEWS NETWORK ( July 9, 2021, 06:25 PM), https://www.livelaw.in/top-stories/fundamental-rights-legislative-privileges-reference-supreme-court-177185.
[7] Agam Bansal, Parliamentary Privileges, Freedom of Speech and Judicial Review, Int’l J.L , Managem. And Human., 898, 898-904.
[8] INDIA CONST. art. 105.
[9] INDIA CONST. art. 194.
[10] supra note10.
[11] INDIA CONST. art. 118.
[12] INDIA CONST. art. 19(1)(a).
[13] M.P. Jain, Indian Constitutional Law, LEXIS NEXIS BUTTERWORTHS WADHWA, 6th edn., 2012, p. 1104.
[14] supra note 4.
[15] Express Newpapers Pvt. Ltd. and Ors. Vs. Union of India and Ors., A.I.R. 1958 S.C. 578.
[16] Raja Ram Pal vs. The Hon’ble Speaker, Lok Sabha and Ors., (2007) 3 S.C.C. 184.
[17] The Editors of Encyclopedia Britannica, Mandamus, BRITANNICA,( Jan. 21, 2017) https://www.britannica.com/topic/mandamus.
[18] INDIA CONST. art. 32.
[19] Amarinder Singh v. Special Committee, Punjab Vidhan Sabha & Ors , (2010) 6 S.C.C. 113.
[20] N.R Ravi vs. Legislative Assembly, (2005) 1 S.C.C. 603.