The privilege controversy is as old as the Republic. What precisely are the privileges of legislatures and their members and whether, in cases of doubt or conflict between them and others, say the Press, can courts come into the picture is not clear.

This is primarily because the framers of the Constitution preferred not to define the privileges but simply equated them with those of the House of Commons.

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The United Kingdom does not have a written Constitution and the powers of Parliament and its members have evolved out of conventions and centuries-old experience.

In fact, the wholesale acceptance of the unwritten privileges of the British House of Commons by the Indian Parliament and State legislatures, functioning under a written Constitution which guarantees a set of fundamental rights, like the freedom of speech and expression has of late given rise to conflict between the legislature and Press or the judiciary for that matter.

The Blitz case (1951),the Searchlight case (1959), Keshav Singh case (1964), Eenadu Editor Ramoji Rao case (1984), K.P. Sunil & Ors case (1992), The Hindu case (2003) and the recent case of two senior scribes of Kannada tabloids (in which Karnataka House sentenced them to one year jail together with a fine of Rs.10,000 each for writing defamatory articles against legislators), are the direct result of the confusion born out of non-codification of legislative privileges.

The Indian judiciary too missed several opportunities to expound clearly the law on the subject. The majority judgement of the Supreme Court in the Keshav Singh case was so vague on several points that it became practically difficult for the high courts to interpret it in clear and precise terms. Soon after the verdict was delivered, conflicting versions of it begin to surface which have not been resolved so far. It is still an open question before courts whether or not the Parliament and State legislatures enjoy “unfettered powers” to commit people for breach of privilege.

In this conflict of prestige and emotion between the legislature and Press or the judiciary, it is Indian democracy that has suffered the most. Our Constitution clearly envisaged that the privileges of Parliament and of State legislatures would be defined by law and until so defined would be what they were in the case of House of Commons at the commencement of the Constitution. But neither Parliament nor the State legislatures have defined them till today.

It was probably feared that codification would expose the actions of legislatures to judicial interference to such an extent that they will not be able to discharge their functions with requisite dignity and grace.

However, the absence of such codification could not prevent judicial intervention. The Supreme Court in its advisory opinion in reference case (1965) clearly upheld the court’s competence to examine all privilege related cases and to rectify mistakes resulting from mala fide acts, caprice and arbitrariness. But notwithstanding the apex court’s verdict in the Keshav Singh case, the scope of legislative privileges remains unlimited. Such an unfettered and undefined power is liable to be abused and it has actually been in the past not only used against innocent citizens and others like newsmen but even against legislators themselves.

The plea that by attracting judicial intervention codification will make matters worse is without any basis, for legislature’s prestige has not been impaired so far by judicial scrutiny of its various acts. Indeed, the image of Parliament or a State legislature is tarnished by undue show of temper, scenes of abusive exchanges, physical scuffles, breaking of microphones etc. – almost a regular feature in various legislative assemblies. When a newspaper dares to report the same truthfully it is sure to be hauled up for contempt.

It is high time to question the wisdom of granting to legislatures in India the same powers, privileges and immunities which the House of Commons in England had on 26 January 1950 – the day the Indian Constitution came into being. Some of the Commons’ privileges were obsolete at that time and a few others relating to the Press have been facing a squeeze under the pressure of democratic norms, traditions and tolerance of criticism that are prized high by the mother of parliaments. Interestingly enough, the House of Commons has not exercised its power to sentence or reprimand a non-member since 1880, although it has contemplated using it on several occasions. Ironically, legislative privileges in India are invoked almost routinely without regard to the fact that excessive use of these claims by our legislators is discrediting the immunities they claim for themselves.

They want the privileges and immunities of the House of Commons but take no notice of the tolerance that members of the U.K. Parliament extend to criticism of the Press and citizens.

In India privileges have become the “Democles’ Sword” which hangs over those whose business it is to write on proceedings of the legislatures.

If this is the use to which the notorious circumstance of uncodified legislative privileges is going to be put, the sooner public opinion asserts itself – to have such privileges carefully and narrowly defined by Parliament and State legislatures (as rightly recommended by the Constitution Review Panel long back), the better it would be for the polity.

The first and second Press Commissions have already stressed the need to define them. The Press has long been demanding a definition obviously because as things are, newsmen do not know when exactly they may be hauled up for breach of privilege. The Press Council of India, in its second report in 1970 too had made a strong plea for the codification of these privileges.

Over and above, the Constitution itself very clearly contemplates that the powers, privileges and immunities of the legislatures shall be such as may be defined by legislation from time to time, and until so defined, shall be those of the House of Commons.

The term “until so defined” can never mean for all time. The meaning is clear enough to those who are committed to democracy. Those who campaign for committed media may not understand it. If during all these years Parliament and State legislatures have not defined the privileges of their members, it is possibly because the members have preferred to keep themselves above the law. The Supreme Court has voiced this suspicion in just about so many words.

“The sovereignty of Parliament has little to do with it. Where there is a written Constitution especially such a detailed one as ours is, any legislature, including Parliament, is sovereign only to the extent that the Constitution says it is, and the ‘extent’ in any specific situation is subject to the judgement of court.”

Finally, legislators inclined to be overzealous about their privileges must remember that in India it is the Constitution, not the legislature, from where all the three organs of the State – the legislature, the executive and the judiciary – derive their powers, that is supreme. Also, Lord Denning’s observation in this regard is very relevant to remind law-makers this harsh reality on the ground : “Be you ever so high, the law is above you” .

The writer is an Advocate, Supreme Court of India and Delhi High Court