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August 22, 2017

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India has got to do something about its lawmakers' undefined privilege

The sentencing of two editors to one-year jail terms in the southern Indian state of Karnataka for alleged breach of legislative privilege draws into focus the role of the press in reporting the activities of lawmakers. While the arrests, ordered by the speaker of the legislative assembly, have been stayed on a suggestion of the High Court, the issue of legislative privilege remains alive because what the assembly in Karnataka did last month mirrors actions taken in the past — and could well be emulated by other legislative bodies, including India's parliament.

The genesis of the matter lies in the country's Westminster-style Constitution. When adopted in 1950, it said that the privileges of legislators would, until they were defined by Parliament, be the same as those enjoyed by members of the British House of Commons on that date. This is an unexceptional provision because many Commonwealth countries have used the privileges of the Commons as a template.

In 1978, the Constitution was amended to read, "In other respects, the powers, privileges and immunities of each House of Parliament … shall be such as may from time to time be defined by Parliament by law and until so defined shall be those of that House and of its members and committee immediately before coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978."

This was a disingenuous ploy to remove the reference to the House of Commons without in any way changing the import of the Constitutional provision but one that ensured a person not possessing a pre-1978 copy of the Constitution would be utterly clueless about the privileges that legislators enjoy. While ignorance of the law is no defense, obfuscation on such a massive scale might well overturn even that settled proposition.

The intent of those who framed the Constitution was clear. Borrowing the privileges of British MPs was a temporary measure, and there was a clear injunction to India's parliamentarians to define and codify their privileges. Sixty-seven years later, the privileges remain undefined and therefore both ambiguous and open to subjective interpretation.

Without going into the merits of the Karnataka case, it is necessary to state that the two journalists were found guilty of articles deemed defamatory by three legislators including the speaker. Various media bodies have deplored the punishment, saying that when remedies for defamation were available, the privileges route ought not to have been taken.

But the greater cavil that the media and rights practitioners have is that legislators have stubbornly refused to codify their privileges. These critics argue that many other Commonwealth jurisdictions have already done so and in a manner that restricts the scope of parliamentary privilege rather than expand it at will, as they allege is the case in India.

Privileges of legislators are meant to insulate them from criticism and action for what they say and do inside the legislature. The privileges of the House of Commons were first claimed when it was struggling to establish a distinct role for itself within Parliament. As noted by the British Constitutional theorist Erskine May, these privileges were necessary to protect the House of Commons and its members, not from the people, but from the power and interference of the King and the House of Lords.

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