(In this Guest Post, Rahul Bajaj, a fourth-year law student at the University of Nagpur, examines a recent Supreme Court judgment – Algaapural R. Mohanraj v TN Legislative Assembly – on parliamentary privileges and constitutional freedoms. This is the first of two guest posts on the case.)
The width and amplitude of the powers of courts to test the legality of legislative proceedings against the touchstone of constitutional values and principles has always been a hotly contested issue. Indeed, there can be no gainsaying that the answer to this question has profound implications for the doctrine of separation of powers, checks and balances and parliamentary sovereignty. Against this backdrop, it would be instructive to examine a recent Supreme Court decision, penned by Justice Chelameswar, that not only throws light on the interrelationship of fundamental rights and parliamentary privileges, but also examines the scope of the court’s power to intervene in disciplinary proceedings that are governed by rules framed by every legislature for this purpose.
The facts of this case lie in a narrow compass but nonetheless merit brief recapitulation in order to set the tone for the discussion that is to follow. On 19.02.2015, some members of a political party known as the DMDK resorted to unruly conduct in the Tamil Nadu Legislative Assembly and ran towards the speaker’s podium when the speaker ordered the eviction of one of them for such conduct. Consequently, the speaker suspended 19 members of the party for the rest of the concerned session and referred the matter to the Privileges Committee of the Assembly for recommending appropriate disciplinary action. The Committee, after having carefully evaluated the conduct of the members, recommended that six of them be prohibited from attending the first 10 days of the next session of the Assembly in addition to being deprived of the other benefits that flow from holding a legislative post. The recommendations of the Committee were accepted by the Assembly by virtue of a resolution dated 31.03.2015, giving rise to the filing of the writ petition under discussion.
The petitioners, who decided to directly move the Supreme Court by invoking its extraordinary powers under Article 32, claimed that their suspension fell foul of their 4 fundamental rights: Freedom of speech and expression under Article 19(1)(a); freedom to practice the occupation of one’s choice under Article 19(1)(g); right to a non-arbitrary procedure flowing from Article 14; and right to receive their salary and other accompanying benefits flowing from Article 21.
In response to the petitioners’ contention about the infraction of their freedom of speech, the Court framed the scope of its inquiry in the following way in para 16: “Two questions are required to be examined in the context; (i) when a member of a State Legislature participates in the proceedings of the House, is that member exercising a fundamental right of speech and expression under Article 19(1)(a)? (ii) Whether any action, either of that legislative body or any other authority, acting pursuant to any law, disabling either temporarily or otherwise a member from participating in the proceedings of the legislative body, amounts to deprivation of the fundamental right to freedom of speech under Article 19(1)(a) of such a legislator?”
After noting the constitutional scheme governing the proceedings in the Parliament and legislative bodies under Articles 105 and 194, the Court held that the freedom of speech guaranteed to legislators is merely a constitutional right and cannot, therefore, be equated with the fundamental right to freedom of speech embodied in Article 19(1)(a). The distinction between the nature of these two rights, as the Court explains in para 18 of the judgment, flows from 4 main factors: While the fundamental right under Article 19(1)(a) inheres in every citizen, the constitutional right under Article 105(1) and 194(1) only inheres in legislators; while the former is inalienable, the latter only applies during the tenure of a legislator in the Assembly/Parliament; while the geographical scope of the former has not been circumscribed by the Constitution, the latter only applies within the confines of the premises of legislative bodies; and while the former is subject to reasonable restrictions under Article 19(2), the latter is subject to the rules of the legislative body and the constitutionally imposed restriction under Article 121 and 211 on discussion of the conduct of judges.
While this distinction is founded on sound legal principles, three features of the Court’s enunciation of the distinction merit emphasis. First, implicit in the Court’s reasoning is the belief that Article 19(1)(a) does not apply within the premises of legislative bodies on account of the existence of special provisions under Articles 105 and 194. However, the Court does not offer any principled rationale for such non-application and, in fact, explicitly recognizes that there are no geographical limits on the applicability of Article 19(1)(a). While it is true that the right under Article 105(1) and 194(1) serves a different set of purposes from those served by the fundamental right to speak freely, it is submitted that this, alone, cannot be a ground to hold that the scope, width and amplitude of the two rights are entirely different. Therefore, instead of viewing these two rights as being completely different in their scope and application, it may have made more sense for the Court to say that the right to speak freely within legislative bodies is a specific facet of the fundamental right under Article 19(1)(a) that possesses some sui generis features. Viewing the right under Article 105(1) and 194(1), metaphorically speaking, as a distinct stream flowing from the river i.e. Article 19(1)(a) would, it is submitted, result in the right being secured on firmer constitutional moorings.
More specifically, such a conception of the right would allow the court to engage in a deeper analysis of whether the restriction on a legislator’s right to speak freely within the legislative body is constitutionally defensible instead of merely stating that, since the reasonableness of such a restriction cannot be tested against the touchstone of Article 19(2), it is constitutionally tenable so long as its curtailment is sanctioned by parliamentary rules and other constitutional restrictions such as those found in Articles 121 and 211.
Second, the Court’s recognition of the right of legislator’s to speak freely as a constitutional right viz. something more than a legal right but less than a fundamental right may make sense in the abstract but does not appear to have any concrete relevance. As Gautam Bhatia rightly noted in the context of the Supreme Court’s decision pertaining to the Haryana Panchayati Raj Act, it is unclear what, precisely, the recognition of a right as a constitutional right means. This distinction is of special relevance in this case because the Court goes on to hold that, since the right under Article 194 is merely a constitutional right and is subject to the restrictions set forth in the Constitution, it cannot be said that the petitioners’ fundamental right to speak freely was violated in this case (para 20). Third, although the court notes in para 18 that the origin of the right of legislators to speak freely within the premises of the legislative body can be traced back to the privileges in the House of Commons, Justice Chelameswar does not meaningfully address how the historic importance of this freedom must inform our contemporary understanding of it. More specifically, as the Supreme Court noted in the case of Raja Ram Pal versus the Hon’Ble Speaker, Lok Sabha, the historic origin of the freedom of speech of Parliamentarians can be traced back to Article 9 of the Bill of Rights, 1689, which “includes the freedom of the member to state whatever he thinks fit in debate, howsoever offensive it may be to the feelings, or injurious to the character, of individuals. He is protected by his privilege from any action for libel, as well as from any question or molestation…” (May’s Parliamentary Practice, 23rd edn., pp 96-97). Therefore, Justice Chelameswar would have been able to offer a far more nuanced and constitutionally defensible justification for the distinction between Article 19(1)(a) and 105(1)/194(1) by grounding his analysis in the unique considerations that must have weighed with the Constituent Assembly while crafting Article 105(1) and 194(1), such as the need to promote uninhibited debate about issues of public relevance and the need to offer legislators and parliamentarians the freedom to criticize the policies of the ruling dispensation, no matter how caustic or unpleasant their remarks might be.
The petitioners’ second argument was that the term ‘occupation’ under Article 19(1)(g) is of a sufficiently wide amplitude to cover the work of legislators within its ambit (para 22). The Court rejected this argument on two main grounds: First, an essential prerequisite for invoking the benefit of Article 19(1)(g) is that the activity in question must necessarily be a livelihood-generating activity and, since economic benefits are merely incidental to the work of legislators, their work cannot be said to be motivated by the objective of eking a livelihood. Second, since it has been held that the right to contest elections is not a fundamental right, it can be logically inferred that an individual does not have a fundamental right to hold a legislative post or to enjoy the benefits that flow from holding such a post by virtue of an election (paras 25 and 26). Again, while the Court’s reasoning appears constitutionally defensible for the most part, the Court does not offer a sufficiently robust justification in support of its holding that the job of legislators cannot be treated as an ‘occupation’ because they are tasked with the responsibility of discharging constitutionally prescribed goals and are not expected to work principally for earning financial returns. The practitioners of many noble professions, it can be legitimately argued, pursue their chosen profession as an end in itself and not as a means to an end, making the financial benefit flowing from their work transient or incidental. Therefore, it is difficult to understand how the Court views the transient nature of financial benefits flowing from legislative office as a determinative factor for coming to the conclusion that the work of legislators does not come within the ambit of the term ‘occupation’.
As the Court rightly recognized, the petitioners’ third argument about the violation of their fundamental right under Article 21 on account of their suspension was wholly baseless and unfounded. The Court rejected this argument principally on the ground that legislators do not have an independent and indefeasible right to claim the benefits that flow from holding a legislative post, so the question of violation of Article 21 does not arise (para 29).
The petitioners’ fourth and final argument swung the decision in their favour. The video recording of the unruly conduct of the petitioners on 19.02.2015, that the Privileges Committee relied on for arriving at its conclusion about the guilt of the petitioners, was not shared with the latter at any point during the disciplinary proceedings. This omission, the petitioners argued, was not only violative of principles of natural justice but also fell foul of their fundamental right to a fair, transparent and non-arbitrary hearing under Article 14. The Court accepted this argument for a trifecta of reasons. First, the Court emphasized the critical importance of the video recording in the proceedings of the Privileges Committee because the recording formed the factual foundation upon which the recommendations of the Committee against the petitioners were based (para 38). A failure to share such a crucial piece of evidence with the petitioners, the Court held, amounted to a glaring impropriety that vitiated the legality of the proceedings. Second, if the petitioners had been afforded an opportunity to view the video recording, the Court opined, they would have been able to put forth cogent and compelling reasons for justifying their conduct – indeed, one Petitioner sought the permission of the Committee to explain his conduct on the basis of the recording and another expressed his conviction that the recording would conclusively prove his version of events (paras 41 and 42). Finally, the Privileges Committee was legally bound to afford an opportunity to the petitioners to view the video recording so as to make its procedure compliant with Article 14. Viewed through this lens, the opportunity to view the recording was not just a means to an end – to afford the petitioners an opportunity to rationalize their conduct or to rebut the allegations of the Committee – but an end in itself as they were legally entitled to this procedural guarantee (para 42). On account of this procedural lacuna in the conduct of the Committee, the Court quashed the resolution dated 31.03.2015 and held that the petitioners were entitled to the benefits that they were deprived of owing to the Recommendations of the Committee.
In the final analysis, it can be said with considerable certitude that, even though the judgment is founded on a lucid and robust application of relevant legal principles, it fails to grapple with the constitutional questions that this case poses with the level of depth, nuance and intellectual rigor that they merit.