THE POWER TO PUNISH FOR CONTEMPT OF THE HOUSE: EXAMINING THE CONSTITUTIONAL ISSUES AND CONFLICTS Ayushi Agarwal IVth Year Student, National Law School of India University, Bangalore ABSTRACT The Constitution of India confers upon the Parliament and State Legislatures broad privileges and immunities and vests with it the power to punish for breach of the same, which is more prominently known as the ‘power to punish for contempt of the House’. In this article, the author analyses the conflict between the exercise of this power and the freedom of the press under Article 19(1)(a) of the Constitution of India as well as the requirement of a just, fair and reasonable procedure under Article 21. It also explores the tussle between the legislature and the judiciary created due to this power. The author argues that the power to punish for contempt must be subject to Article 19(1)(a) and justifies why the decision in MSM Sharma needs to be overturned. Further, the author argues that this power must be exercised in accordance with procedural tests under Article 21 and reasons why failing to do would be a violation of principles of criminal law as well as natural justice. The author applauds the Supreme Court for taking a step towards limiting the arbitrary exercise of the power to punish for contempt of the House by the Speaker when the judiciary’s powers were being infringed upon. At the same time, she also notes that the Courts have so far failed to extend their own reasoning to its logical conclusion and explore whether the power to punish for contempt is itself suspect, given the difference in the historical backgrounds of the Indian Parliament and the House of Commons. The author emphasizes that the need of the hour is the codification of the privileges and immunities of the Parliament and the State Legislatures, which was envisaged at the time of the drafting of the Constitution itself and will be a step in the right direction in curbing the current arbitrary exercise of the power to punish for contempt of the House. INTRODUCTION 1 The Constitution confers certain privileges on members of the Parliament and the State Legislatures1 so that they are able to perform their duties without hindrance.2 In order to safeguard the same, the House is also empowered to punish for its contempt arising from the breach of a privilege. This power is exercised by the Speaker3 or the Chairman,4 as the case may be. Shri Jawaharlal Nehru, praising the values of Parliamentary democracy, once remarked: “the Speaker represents the House, he represents the dignity of the House, the freedom of the House and because the House represents the nation, the Speaker becomes the symbol of the nation’s freedom and liberties. Therefore it should be a honored position, occupied always by men of outstanding ability and impartiality.”5 The Supreme Court of India has also quoted this with approval.6 However, the exercise of the power to punish for contempt has led to grave constitutional issues due to the ambiguities therein and arbitrary exercise of the same by the Speaker, who has often claimed sky-high powers in this regard. In this article, the author explores the constitutional issues arising from the existence and exercise of this power. First, the author discusses the historical and constitutional background of parliamentary privileges and the power of contempt. This is followed by an analysis of the conflict between the power to punish for attempt and Article 19(1)(a) and thereafter, Article 21. Lastly, the author discusses the tussle between the judiciary and the legislature, where the author also challenges the Indian Parliament and State Legislatures’ power to punish for contempt. I. THE HISTORICAL AND CONSTITUTIONAL BACKGROUND OF PARLIAMENTARY PRIVILEGES AND CONTEMPT OF THE HOUSE Parliamentary privileges are those that are enjoyed by the house collectively and by its committees and members individually, without which they cannot discharge their functions 1 Art. 105 and 194, THE CONSTITUTION OF INDIA, 1950. 2 Report of Committee of Privileges in Captain Ramsay case, 6, (1939-40). 3 Art. 93, THE CONSTITUTION OF INDIA, 1950; Art. 18, THE CONSTITUTION OF INDIA, 1950. 4 Art. 89, THE CONSTITUTION OF INDIA, 1950; Art. 182, THE CONSTITUTION OF INDIA, 1950 5 G.V. Mavalankar, The Office of Speaker, 2(1), JOURNAL OF PARLIAMENTARY INFORMATION, 33 (1956). 6 Shri Kihota Hollohon v. Mr. zachilhu and Ors. AIR 1993 SC 412, ¶45. 2 efficiently and effectively.7 The privilege of freedom of speech and immunity from proceedings was expressly granted to the members of the Indian Legislature for the first time under the Montague-Chelmsford reforms. Thereunder, a member of the Legislature had the immunity from any proceedings in any Court in respect of his “speech or vote” in either Chamber of the Indian Legislature.8 In the Government of India Act, 1935, however, and subsequently in the Indian Constitution, the scope of this privilege was widened tremendously.9 Presently, Article 105(1) and Article 194(1) grant to the Parliament and the State Legislature respectively, the freedom of speech in the House.10 This has been understood to be in addition to the freedom of speech granted to every citizen under Article 19(1)(a).11 Article 105(2) and Article 194(2) grant to the Parliament and the State Legislature respectively, immunity from proceedings in respect of “anything said or vote given”.12 ‘Anything’ in this phrase has been read to be of the widest import and understood to be the equivalent of ‘everything’.13 Further, Articles 105(3) and 194(3) stipulate that the Parliament or State Legislatures by law shall define the privileges and immunities in other respects.14 However, the Parliament or the State Legislatures have not enacted any law in pursuance of this provision so far. Therefore, the powers, privileges and immunities of each House of Parliament and State Legislatures continue to be those of the House of Commons of the United Kingdom Parliament.15 As a result, the Parliament is also vested with the power to punish for breach of privilege or contempt of the House, identical to that of the UK Parliament, which is exercised by the Speaker.16 Sir Erskine May has defined ‘contempt of Parliament’ as “any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which 7 Subhash C. Kashyap, PARLIAMENTARY PRIVILEGES IN INDIA, 1554 (2000). 8 Section 28(1), THE GOVERNMENT OF INDIA ACT, 1935. 9 M.N. Kaul and S.L. Shakdher, PRACTICE AND PROCEDURE OF PARLIAMENT, 206, (2009). 10 Art. 105(1) and 194(1), THE CONSTITUTION OF INDIA, 1950. 11 Art. 19(1)(a), THE CONSTITUTION OF INDIA, 1950. 12 Art. 105(2) and 194(2), THE CONSTITUTION OF INDIA, 1950; P.V. Narsimha Rao v. State (1998) 4 SCC 626. 13 Tej Kiran Jain v. N. Sanjiva Reddy, A.I.R. 1970 S.C. 1573. As per the Report of the Select Committee on the Official Secrets Act, House of Commons, (1938-39), such a privilege is conferred to the extent that disclosures made in the House whether by speeches or discussions, cannot be made the subject matter of a prosecution under the Official Secrets Act. 14 Art. 105(3) and 194(3), THE CONSTITUTION OF INDIA, 1950. 15 Privileges, Practice and Procedure, RAJYA SABHA (Mar. 30, 1993) available at https://www.google.co.in/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF- 8#q=parliamentary+privileges+and+power+to+punish+for+contempt&. 16 Parliamentary Privileges, RAJYA SABHA (Mar. 26, 1981) available at http://rajyasabha.nic.in/rsnew/rsat_work/chapter-8.pdf. 3 obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results, even though there is no precedent of the offence”.17 The power of the House to punish for contempt has been described as the keynote of parliamentary privilege18 as it would not be able to safeguard its authority and discharge the high functions entrusted to it properly if it had no power to punish offenders for the breach of its privileges.19 Further, the Supreme Court of India has held that Courts of law cannot scrutinize the exercise of the power of the House to punish for its contempt.20 In Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P.,21 a citizen had been arrested for contempt of the Uttar Pradesh Assembly under the Speaker’s order without first being produced before a magistrate, as required under Article 22(2).22 The Supreme Court found this to be a violation of the citizen’s fundamental rights guaranteed under the Constitution of India and thus struck down the Speaker’s order. This establishes the first proposition of the author that the privileges granted to the members of the House and consequently the power to punish for contempt is subject to Part III of the Constitution. Thus, the exercise of this power cannot be in violation of the fundamental rights of the citizens under Articles 19 or 21.23 II. THE CONFLICT BETWEEN THE POWER TO PUNISH FOR CONTEMPT AND ARTICLE 19(1)(A) The fundamental right to freedom of speech and expression under Article 19(1)(a) has often come into conflict with the Parliament’s right to protect its privileges,24 particularly in relation to the freedom of the press. In India, the press is the most powerful organ that can influence and mobilize public opinion.25 Unless the press plays its role effectively and efficiently and publishes 17 th Thomas Erskine May, PARLIAMENTARY PRACTICE, 109 (7 edn.).