Issuance of unspeaking orders to imprison for contempt under the Parliamentary Privileges in India
Author: Abhijeet Chaudhary
Symbiosis Law School, NOIDA.
ISSN: 2581-8465
Abstract
This paper delves into the sphere of powers, privileges, and immunities granted to both the Houses of Parliament and the State Legislatures in India to help them carry out their work without interruption. Since the Constitution does not specifically enumerate all the Parliamentary privileges, there has always been confusion regarding this subject. Only two privileges have been expressly given in the Constitution i.e. freedom of speech and immunity from arrest. Special emphasis will be given to the question of whether the Indian Legislatures have the power to issue an unspeaking or general order to imprison a person for contempt, i.e. an order without specifying the reasons or grounds. Along with that, this paper will examine how this power to issue an unspeaking order violates the provisions of Part III of the Constitution. The paper will discuss the Apex Court’s rulings in matters on this subject. In 1965, the Hon’ble Supreme Court, in its advisory opinion, dealt with the question which this paper is going to address. However, since it was limited to the factual background of a particular case and not binding on the Hon’ble Supreme Court itself, it was not of much help. Therefore, this paper attempts to put forward some suggestions to remove all confusion regarding the Legislatures’ powers.
Introduction
The Indian Constitution confers certain powers, privileges, and immunities to both the Houses of the Parliament and the State Legislatures so that they can do their work smoothly and without hindrance. These powers, privileges, etc. are available to all the members of the legislatures, committees, and the House collectively. Sir Thomas Erskine May had said in his famous work[1] that “Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament and by members of each House individually, without which they could not discharge their functions and which exceed those possessed by other bodies or individuals.” In the absence of these privileges and powers, Legislatures and Parliament cannot execute their functions properly and smoothly. The very essence of these powers, privileges, etc. is to enable the Legislatures to un-interruptingly do their work of making legislations and reviewing executive activities. Legislatures’ privileges are embedded in the doctrine of necessity.[2] The extent and content of these privileges have evolved as per their necessity.[3] In the Indian Constitution, Article 105 and 194 deal with these powers, privileges, and immunities of Houses of Parliament and State Legislatures respectively.
Article 105 and 194 are exact replicas of each other except that the former uses the term “Parliament” and the latter contains the term “State Legislature”. Some of these powers, privileges, etc. are specifically provided in the Constitution like in Clauses (1) and (2) of both these Articles. The first Clause provides that the members of the Parliament and State Legislatures will have the freedom to speak in the House but, this will have to give way to the other provisions of the Constitution.[4] The second Clause provides that no legislator of the Parliament or State Legislature shall be liable in any proceeding before any Court for anything said, or any vote given in the House. Both these Clauses conclude that the freedom of speech of the legislators in the House is without any constraints.
Clause (3) of both these Articles is divided into two parts. The first part states that the Legislature can make a law prescribing its powers, privileges, and immunities. However, the Hon’ble Supreme Court has held in Pandit M.S.M. Sharma v. Sri Krishna Sinha,[5] that this law mentioned in the former part of Article 194(3) must comply with fundamental rights like every other law. Now, the latter part of Clause (3) of Articles 194 & 105 provides that till the time such Law is made, the Parliamentary privileges of Parliament and the State Legislatures will be the same as it was before the 44th Amendment.[6] Before, the 44th Amendment, the latter part of Article 194(3) & 105(3) provided that until such Law is made, the powers, privileges, etc. of the Parliament and State Legislatures will be the same as those of the British House of Commons at the time of commencement of our Constitution. Interestingly, though the 44th Amendment changed the wording of Clause (3), the meaning remains the same which raises the question of why was this amendment even made.
Now, for determining the Parliamentary privileges of the Indian Legislatures, it has become necessary to find what all Parliamentary privileges did the British House of Commons have at the time of commencement of our Constitution. Along with that, it will be important to determine whether the Indian Legislatures could have all of those powers or only a few in particular because, in 1950, the British House of Commons was fundamentally different from the Indian Legislatures today. When the Indian Constitution came into force, the British House of Commons was also performing the function of a Superior Court of Record which is not the same in case of the Indian Parliament and State Legislatures.[7]
In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha,[8]the Hon’ble Supreme Court has eloquently talked about the powers, privileges, and immunities enjoyed by the British House of Commons as on 26th January 1950. The privileges include (a) Freedom of speech; (b) Immunity from all civil and criminal proceedings for anything said, or any vote is given in the House; (c) Freedom to access to the sovereign through the Speaker; (d) The Privilege of receiving a favorable construction of the proceedings of the House from the sovereign; (e) Power to punish any member or stranger for contempt; (f) Privilege to lay down its due constitution or composition and (g) power to compel the witnesses to appear before the House and to compel the production of papers. As discussed earlier, Clauses (1) and (2) of Articles 105 and 194 provide two of these privileges i.e. freedom of speech and immunity from civil and criminal proceedings, however, for all other privileges, Clause (3) has been inserted in Article 105 and 194.
The primary focus of this paper is on the question of whether the Indian Legislatures have the power to imprison someone for their contempt by issuing a warrant which does not specify any reasons i.e. an unspeaking warrant. It is pertinent to note that the power to punish for contempt of the British House of Commons is a wide-ranging power, covering an array of powers, and issuance of an unspeaking warrant is just one part of that power. If the British House of Commons imprisoned a person for contempt of itself by issuing a speaking warrant, courts could go into the question whether in law it amounts to a breach of privilege; whether the grounds are sufficient or adequate to constitute contempt or breach of privilege of the House.[9] However, if the House of Commons punished for contempt by an unspeaking warrant, the Courts could not go behind the same.[10]
While it is not disputed that the Indian Legislatures do have the power to punish for contempt as this power is necessary to enable the House to function properly, the power to issue unspeaking orders to punish for contempt does not comply with Part III of the Constitution and therefore is questionable. Though neither the Houses of the Parliament nor any State Legislature has made laws under the first part of Article 194(3) and 105(3) prescribing their powers, privileges, etc. they have framed Rules of procedure under Article 208 laying down the procedure to be followed to punish a member or stranger for contempt. However, they have not been able to include unspeaking order in the procedure since Article 208 makes it mandatory to conform with the fundamental rights.
Supreme Court’s advisory opinion
While there have been numerous cases where the State Legislative Assemblies and Houses of Parliament have imprisoned people for contempt, Keshav Singh v. Speaker, Legislative Assembly, Uttar Pradesh,[11] (For brevity, Keshav Singh case) is the only case in India where the issue of passing an unspeaking warrant to punish for contempt came up. When Keshav Singh was sent to prison for contempt by a warrant issued by the U.P. Legislative Assembly which did not specify any grounds or reasons, he approached the Allahabad High Court with a Habeas Corpus petition. Thereafter, the U.P. Legislative Assembly held Keshav Singh, his advocate, and the Judges who admitted his petition also liable for contempt. Subsequently, these Judges also filed petitions under Article 226. According to them, Article 211 prohibits the Legislature from discussing the working of any Judge while discharging his duties. This conflict between the Legislature and the Judiciary led to the President consulting the Hon’ble Supreme Court under Article 143 to give its advisory opinion and settle the issue.
In the advisory opinion, Powers, Privileges, and Immunities of State Legislature, In re.,[12] also known as Special reference no.1 of 1965, theHon’ble Supreme Courtby a 6:1 majority laid down that the Courts can examine the legality of a general/unspeaking warrant issued by the Legislative Assembly. In India, Article 32 and 226 confers jurisdiction on the Hon’ble Supreme Court and High Court respectively to deal with the validity of unspeaking orders passed by the State Legislatures to imprison a person for contempt. It was further opined by the majority that it will be dangerous to construe the latter part of Article 194(3) to mean that the State Legislatures can imprison a person by an unspeaking warrant and exclude the jurisdiction of all Courts. It would be very easy for the Legislatures to exploit this power and the citizens would have no remedy at all. The Keshav Singh case, for instance, clearly shows this exploitation of power wherethe Legislative Assembly of Uttar Pradesh, held the Judges, Keshav Singh, and his advocate for contempt, whereas subsequently, it was found by the Hon’ble Supreme Court that there was no contempt.
Furthermore, the majority opined that the House of Commons possessed this power of passing an unspeaking warrant for the punishment of contempt because it was a Superior Court of Record. Along with this, upholding that the Legislature has this particular power would mean jeopardizing Judicial Independence, as in that scenario, regardless of Article 211, the Legislature would be able to commit any Judge for contempt. The majority strongly emphasized that this particular power of issuing an unspeaking order comes into conflict with important provisions of the Constitution and therefore cannot come under the latter part of Article 194(3). However, this advisory opinion of the Hon’ble Supreme Court is not a binding precedent on the Supreme Court itself though it is a binding precedent under Article 141 on all the other Courts.[13] Furthermore, Special reference no.1 of 1965 is not of much value since it is restricted to the factual background of the Keshav Singh case.
On the date of the commencement of our Constitution, the British House of Commons enjoyed the status of a Superior Court of Record and in that capacity enjoyed the power to imprison for contempt by an unspeaking warrant.[14] In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, and Ors.,[15] the Hon’ble Supreme Court held that “unlike the House of Commons, the Indian legislatures never discharged any judicial function and their historical and constitutional background does not support their claim to be regarded as Courts of Record in any sense.” Parliamentary Privileges are not defined in our country as of now since they haven’t been codified as law and thus, legislatures do not have the absolute power to imprison for contempt.[16]
It was also held in P.V Narsima Rao v. State[17] that “the very basis on which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior court of record was absent in the case of a general warrant issued by a State Legislature or House of Parliament in India.” In Pandit M.S.M. Sharma v. Sri Krishna Sinha,[18] it was held by the Hon’ble Supreme Court that “the conditions that prevailed in the dark days of British history, which led to the Houses of Parliament to claim their powers, privileges, and immunities, do not now prevail either in the United Kingdom or in our country and that there is, therefore, no reason why we should adopt them in these democratic days.” The power to imprison for contempt by an unspeaking order arises from the medieval concept of Parliament in England as primarily a Court of Justice as the High Court.[19]
It must be noted that Learned members of the Drafting Committee of our Constitution inserted the provision of powers, privileges, and immunities of both the Houses of Parliament and State Legislatures by referring to the British House of Commons as a temporary measure and with a view that the said privileges will soon be codified as Law.[20] The Law of these Powers, Privileges, etc. cannot be set in the background of 1950, while India has evolved so much over the decades. Even the place of origin of this Law, i.e. United Kingdom has not remained frozen to what it was in 1950.
Unspeaking Order and Fundamental Rights
Regarding the fundamental rights vis-à-vis powers, privileges, and immunities of the Parliament and Legislative Assemblies, the Hon’ble Supreme Court has settled that Article 19(1)(a) must give way to the privileges but Article 20 and 21 must have precedence over the privileges.[21] It is pertinent to note the issuance of an unspeaking order for imprisoning a person for contempt is violative of Natural Justice and in turn it also violates Article 14. Furthermore, it also violates Article 21 because this procedure for depriving a person of his/her personal liberty is arbitrary. Though the principles of natural justice are not explicitly codified anywhere in the Indian Constitution, the Hon’ble Supreme Court has held in Union of India v. Tulsiram Patel,[22] that “the principles of natural justice are not the creation of Article 14 of the Constitution of India and that Article 14 is not their begetter but is their Constitutional Guardian.” It was also held in DTC v. DTC Mazdoor Congress[23] that “under Article 14, the requirement of natural justice has been regarded as an integral part of the guarantee of equality of Article 14 because violation of a rule of natural justice results in arbitrariness, which is the same as discrimination.”
It is pertinent to note that Nemo judex in causa sua (no man shall be a Judge in his own cause) and Audi Alteram Partem (hear the other side) are not the only principles of natural justice. In Siemens Engg. & Mfg. Co. of India v. Union of India,[24] the Hon’ble Supreme Court held that “duty to give reasons in support of the decision, namely, passing of a reasoned order is also a basic principle of natural justice and is of recent origin.” A speaking order ensures that the principles of natural justice are followed. Such order would show which particular circumstance received due consideration while arriving at the decision. The Hon’ble Supreme Court held in CCT v. Shukla & Bros.[25] that, “in the absence of a reasoned order, it would become a tool for harassment.” The power to issue unspeaking orders for imprisoning people for its contempt would give the Legislative Assemblies, a tool to harass the people and would be violative of the fundamental rights. In Nareshbhai Bhagubhai v. Union of India[26] and Kranti Associates Private Limited v. Masood Ahmed Khan,[27] the Apex Court opined that “it is the duty of judicial and well as quasi-judicial and administrative authorities to give reasons for their decisions i.e. Speaking Order.” The Indian Courts as well as the Legislatures ought to incorporate the principle of giving reasons in the vast concept of Natural Justice.[28] Therefore, this particular power of the Legislative Assemblies and Parliament violates Article 14.
It was well settled by the Apex Court in Woolcombers of India Ltd. v. Woolcombers Workers’ Union[29] and Kishan Lal v. Union of India,[30] that “issuance of orders without specifying any reasons is an arbitrary exercise of power.” Furthermore, it has been held in Maneka Gandhi v. Union of India,[31] that “Article 14 strikes as arbitrariness and the procedure contemplated in Article 21 must satisfy Article 14 i.e. it should not be arbitrary.” Therefore, this power cannot be given to the State Legislative Assemblies or Houses of Parliament as it will violate the citizens’ fundamental right under Article 14 on grounds of arbitrariness and in turn, also violate Article 21. In Pandit M.S.M. Sharma v. Sri Krishna Sinha,[32] the Hon’ble Supreme Court held that “imprisonment of a person as a result of proceedings before a Privileges Committee is in accordance with the procedure established by law because it was provided in the rules of Legislative Assembly framed under Article 208(1).” However, it must be noted that merely having rules of procedure and conduct of business under Article 208(1) does not mean that they will be followed. Along with following the procedure given in the rules, it is necessary that this procedure must not be unjust, arbitrary, or oppressive.
It must be noted that it is not unprecedented for the Legislatures to not have this particular power. The Constitution of the United States of America does not confer the power to issue unspeaking warrants on the Legislature and a case of contempt of the House is tried by the Court under the ordinary Law.[33] Furthermore, the Legislatures in the USA are functioning satisfactorily and smoothly even though they do not possess this power.[34]
Conclusion
Even though the House of Commons of Britain possessed certain powers, privileges, etc. at the time when our Constitution came into force, all these privileges cannot be blindly imported into India and due regard ought to be given to the fundamental rights of citizens. Since the Indian Legislatures are not created on the lines of the medieval concept of Parliament in England, therefore, it will not be proper if this power to issue unspeaking warrants is bestowed upon them. The Legislatures and Courts must work in cohesion in matters of breach of privileges of the Legislatures. The Legislature needs to have the privilege/power of deciding the question of breach of their privilege through their rules of procedure, however, it is equally important to not oust the jurisdiction of the Courts to review it to prevent abuse of such privilege/power. If the Court’s jurisdiction to review the Legislature’s warrant for imprisoning a person for contempt is excluded, the Legislature will have a very dangerous weapon to harass anybody. Imprisoning a person for contempt is a very serious matter and it is a basic requirement of natural justice to inform such person about the ground/reasons based on which he/she is sent to prison. The majority decision in Special reference no. 1 of 1965 was given by 6 wise Judges of the Hon’ble Supreme Court and it lays down various important principles of law. Therefore, it should not be rendered useless merely because it is limited to a particular factual scenario rather, it should be used as a guiding light to codify the Legislatures’ privileges. This will help to eliminate any confusion regarding this matter in the future.
[1] Sir Thomas Erskine May, Parliamentary Practice, (20th ed. 1983).
[2] Weizhong Yi, Research on Parliamentary Privilege Concurrently Discuss Chinese National People’s Congressional Privilege (2009) (Unpublished Ph.D. dissertation, Humboldt University, Berlin). Available at: https://edoc.hu-berlin.de/bitstream/handle/18452/16663/yi.pdf?sequence=1&isAllowed=y
[3] Id.
[4] India Const. art. 105. cl. 1, India Const. art. 194. cl. 1.
[5] AIR 1959 SC 395 (India).
[6] § 26 of the Constitution (44th Amendment) Act, 1978.
[7] Dr.K.Madhusudhana Rao, Codification of Parliamentary Privileges in India – Some Suggestions, 7 SCC (Jour) 21 (2001).
[8] (2007) 3 S.C.C. 184 (India).
[9] M.P. Jain, Indian Constitution al Law with Constitutional Documents, (7th ed. 2017).
[10] Amarinder Singh v. Punjab Vidhan Sabha, (2010) 6 S.C.C. 163 (India); see also, Pandit M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395 (India).
[11] AIR 1965 All 349 (India).
[12] (1965) SC 745 (India).
[13] Shashikant Hajare, The Law on Parliamentary Privileges in India: Problems and Prospects, (2014).
[14] Supra note 7.
[15] (2007) 3 S.C.C. 184 (India).
[16] Dr.Shruti Bedi, The Power to Punish for Contempt under the Parliamentary Privileges: An Analysis of the Inherent Limitations, Vol51 : 79 JILI (2009).
[17] (1998) 4 S.C.C. 626 (India).
[18] AIR 1959 SC 395 (India).
[19] Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and Ors., (2007) 3 S.C.C. 184 (India); see also, Sir Thomas Erskine May, Parliamentary Practice, (23th ed. 2004).
[20] VII Constituent Assembly Debates Official Report, 1949 at 143-49.
[21] Pandit M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395 (India); see also, Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, (2007) 3 S.C.C. 184 (India); see also, Powers, Privileges and Immunities of State Legislature, In re., (1965) SC 745 (India).
[22] (1985) 3 S.C.C. 398 (India); see also, Mr. Justice T.S. Sivagnanam, Principles of Natural Justice, (2009) 3 LW (JS) 1.
[23] AIR 1991 SC 101 (India).
[24] (1976) 2 S.C.C. 981 (India).
[25] (2010) 4 S.C.C. 785 (India).
[26] (2019) 15 S.C.C. 1 (India).
[27] (2010) 9 S.C.C. 496 (India).
[28] Alice Jacob, Requirement of findings of fact in administrative determinations- Judicial experience in India and the United States, Vol. 8: 54 JILI (1966).
[29] (1974) 3 S.C.C. 318 (India).
[30] (1998) 2 S.C.C. 392 (India).
[31] (1978) 1 S.C.C. 248 (India).
[32] (1959) SC 395 (India).
[33] Durga Das Basu, Commentary on the Constitution of India, (9th ed. 2015).
[34] Id.