Question

Recently a Member of Parliament moved ‘privilege motion’ against a media house. What do you understand by ‘parliamentary privilege’? Critically analyse whether it curbs freedom of the Press.

Answer 1

Approach:

• Start with writing about what are ‘Parliamentary Privilege’, constitutional/legal provisions, and there need.
• Provide arguments whether Parliamentary Privileges curb Freedom of the Press by citing some examples, sc judgements.
• Write conclusion/way forward based on arguments provided.

The term `Parliamentary Privilege' refers to certain rights and immunities enjoyed by each House of Parliament and Committees of each House collectively and by the Members of each House individually, without which they cannot discharge their functions efficiently and effectively.

The powers, privileges and immunities are available to all the legislatures in the states as well. The main articles of the Constitution of India dealing with the privileges of Parliament are 105 and 122 and the corresponding articles for the states are 194 and 212.

The House has the power to punish any person who commits contempt of the House or a breach of any of its privileges.

No law has so far been enacted by Parliament in pursuance of article 105(3) of the Constitution to define the powers, privileges and immunities available to each House and its Members and Committees thereof.

A question of privilege may either be considered or decided by the House it or it may be referred by the House or by the Speaker to the Committee of Privileges for examination, investigation and report.

The object of parliamentary privileges is to safeguard the freedom, the authority and the dignity of Parliament.

Any act or omission which obstructs a House of Parliament, its members or its officer in the performance of their functions or which has a tendency, directly or indirectly to produce results against the dignity, authority and honour of the House is treated as contempt of the House.

Parliamentary Privileges and Freedom of Press:

• The power of privilege has been used against journalists in several instances and as a substitute for legal proceedings. In 2003, the Tamil Nadu assembly Speaker directed the arrest of five journalists of The Hindu newspaper for publishing articles and an editorial that were critical of the AIADMK government
• All persons have a right to trial by a competent, independent and impartial tribunal. Breach of privilege laws allow politicians to become judges in their own cause, raising concerns of conflict of interest and violating basic fair trial guarantees.
• This is seen as an encroachment on press freedom -a fundamental right guaranteed under Article 19 (1) (a).
• Various media organizations have often taken up the issue of codification of privileges.
• Legislatures have been reluctant to codify these privileges, as once privileges are codified they will be subject to judicial scrutiny.

The Constitutional provision for the Parliamentary privileges is vague. In these circumstances the Indian Courts has expounded the law of Parliamentary privileges on various occasions to accord some concreteness to the issue.

In Sharma's case the Court held that in case of conflict between fundamental right under Article 19 (1) (a) and a privilege under Article 194 (3) the latter would prevail.

In Pandit M.S.M Sharma v. Shri Krishna Sinha case SC mentioned that not all cases the privileges shall override the fundamental rights.

Way forward:

• Restrict the use of privilege to proceedings of the legislature and not to the individual member. Any member who is falsely accused of any impropriety can use the defamation route through courts.
• Parliament and Legislative Assemblies should pass laws to codify privilege while keeping in mind that any such law doesn't harm fundamental rights of Citizens.
• It is also the duty of the members to properly use these privileges and not misuse them and protect the general interest of the nation and the public at large.
• National Commission to Review the Working of the Constitution in its report in 2002, suggested that privileges be “defined and delimited.