Hon'ble MP Ramesh Bidhuri's remarks & Legislative Privileges

This post discusses how our Constitution and Parliament protects Hon'ble MP Ramesh Bidhuri from facing any criminal sanction over his remarks during the special session of Parliament.

The ‘special session’ of Parliament last week was special for a variety of reasons. The seat of the metaphorical will of the people changed from the old Parliament (soon to be named Samvidhan Sadan or Constitution House) to the new one. The Lok Sabha and Rajya Sabha passed the Women’s Reservation Bill (yet to receive assent of the President). In this special session, Ramesh Bidhuri, the Hon’ble Member of Parliament from BJP representing South Delhi, directed hateful, Islamophobic abuses towards Danish Ali, Hon’ble Member of Parliament from BSP representing Amroha. There have since been claims that Ali first abused Prime Minister Modi and that Hon’ Bidhuri’s remarks were in response to that, but I would leave it to the readers to discern the factual matrix, and whether it matters at all.

For reasons we will get into later, it is not possible to reproduce the abuses, but nothing escapes the grasp of social media. There have been calls for the arrest of the Hon’ble MP for his remarks. Many must be puzzled that no cases have been filed against him yet. This post shall address the reason behind this – Legislative Privileges – explore the history of the subject and question its relevance in today’s times.

Legislative Privileges in the Constitution

Article 105 of the Constitution speaks to the ‘Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof’. Clause (1) specifies that there shall be freedom of speech in Parliament. Clause (2) gives immunity to members of Parliament from proceedings in courts ‘in respect of’ speech and votes in Parliament. Clause (3) empowers the Parliament to make a law to define other powers, privileges, and immunities of the Houses of Parliament and its members and Committees. Till such a law is made, the same powers, privileges, and immunities would continue to be the same as that of the House of Commons of the United Kingdom, its members, and Committees at the time of the commencement of the Constitution. It also provides immunity for publication of reports, papers, votes, or proceedings by or under the authority of the House. Article 194 is the corresponding provision which confers the same powers, privileges, and immunities to members of Legislative Assemblies of states.

History of Privileges

What are these powers and privileges and who are these immunities from? After all, these are some of the most powerful (mostly) men and (and now) women in the country. To understand, we need to go back to medieval Britain. Democracy, especially electoral democracy as we know today was not a creature of a day, months or even years. It was a slow transition from an autocratic rule, then to varying degrees of public participation in decision-making, today. Despite the existence of the Parliament in medieval Britain, the Crown and associated agencies (including courts) were relatively powerful. Therefore, the idea of privileges was first asserted to protect legislators from arbitrary arrests, prosecution, etc. This then became understood as being fundamentally necessary to carry out duties as a legislator effectively.

Broadly speaking, we can understand powers, privileges, and immunities in two ways – first, that of individual members and second, that of the House representing the collective of the individual members. For the House, the powers can be used either against members of the House or against individuals outside the House. Despite Article 105(3) empowering Parliament to codify privileges, and several scholars reiterating this requirement, there is no consolidated list of privileges available. It is through developments in the House of Commons of the UK before 1950 and developments in the Parliament as well as in Courts in India after 1950 which have shaped the contours of Articles 105 and 194.

Privileges and immunities of individual members rest on the premise that a legislator requires protection from external forces to do their job effectively. Therefore, these include immunity from arrest during, immediately preceding or immediately succeeding a session, exemption from attending as witness in court, etc. In the UK, by virtue of the principle of Parliamentary sovereignty, it is the supreme legal authority. Therefore, the power of Parliament included the power to control publication of its proceedings, discipline members for acts within the House, punish members of the general public for breach of privilege or contempt of the House, etc. One can check the ‘Legislature: Privileges and Processes’ chapter of the Oxford Handbook on the Indian Constitution for a summary of major cases on the point.

Relevant Precedents

In the present case, the Hon’ble MP Bidhuri’s remarks are squarely covered by Article 105(2) of the Constitution. Is it fair that the same words if spoken a few metres away, outside the walls of the Lok Sabha would have attracted prosecution but do not right now? The Supreme Court in the case of State of Kerala v. K. Ajith has traced the development of the law on Parliamentary Privileges in the UK. The Court has observed that in the UK

“…a person committing a criminal offence within the precincts of the House does not hold an absolute privilege. Instead, he would possess a qualified privilege, and would receive the immunity only if the action bears nexus to the effective participation of the member in the House.”

In this case, a few then Opposition legislators had caused destruction of property in the House and were claiming immunity against prosecution initiated by the then Government. The Court unequivocally held that

“Privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen. To claim an exemption from the application of criminal law would be to betray the trust which is impressed on the character of elected representatives as the makers and enactors of the law.”

It further held that

“…the members shall only possess such privileges that are essential for undertaking their legislative functions. An alleged act of destruction of public property within the House by the members to lodge their protest against the presentation of the budget cannot be regarded as essential for exercising their legislative functions.”

The Present Case

Therefore, it can be argued that abusing a fellow Member of Parliament is not essential for undertaking legislative functions. Hate speech finding place in the criminal statute books, there is a case for prosecution of the Hon’ble MP. However, the Hon’ble MP can also argue that it was during his speech that those words were uttered. That being a core legislative function, immunity can be claimed.

Another issues surrounds the reportage of the Hon’ble MP’s speech. The words used by the Hon’ble MP were expunged from the records of the Lok Sabha; that is for all practical purposes, he never uttered those words. The House has the power to regulate the publication of its proceedings; publication of expunged parts of a speech have been considered breach of privilege in the case of M. S. M Sharma v. Sri Krishna Sinha. Therefore, any person publishing those words in the context of the speech would be in breach of privilege of the House. However, ‘publication’ was not envisaged to include video recordings or social media posts. Now it would be interesting to see whether proceedings of breach of privilege are initiated against hundreds of people sharing the video or posting about the speech.

The Hon’ble MP has reportedly been warned by the Lok Sabha Speaker and his party has issued a show cause notice to him. Other MPs have also written to institute proceedings before the Committee on Privileges. It is only time before we find out if any action would be taken. The Committee, with a majority of its members from the ruling party, should hopefully not be the site of a political contestation instead of a moral one.

Conclusion

This episode also brings into question whether powers, privileges, immunities are outdated concepts. One would imagine that there is no supreme authority from whom the legislators need be protected from. As opposed to supremacy of the Parliament in the UK, the Constitution of India is supreme and the Parliament draws its powers from the Constitution. Therefore, drawing an equivalence between the British and Indian Parliaments, and their powers, privileges and immunities may be wrong. There are, however, arguments that the ever-visible misuse of investigative agencies and vicious prosecutions poses the same threat as the arbitrary actions of a monarch. A balance needs to be struck between protecting legislators and protecting democracy and society from legislators – codifying privileges could be the first step in doing that.