(This is a guest post by Goutham Shivashankar.)
This post is a response to Karan Lahiri’s absolutely fascinating post, on the recent decision of the Supreme Court in Kalpana Mehta & Ors. v. Union of India & Ors. Lahiri argues that Chandrachud’s J.’s invocation of the idea of the “Constitution as a transformative document”, was incorrect in the context of legislative privileges. To Lahiri, Article 105 of the Constitution, which provides for powers, privileges and immunities of the Houses of Parliament, is an instance where the Constitution is not “transformative” – it rather creates “explicit continuities” with India’s colonial past. Lahiri then asserts that Article 105 is better viewed as provision that is a “gateway to transformation”, since its wording imbues the Parliament with transformative potential in defining its privileges. Thus, Lahiri’s argument has two components: (i) that the Constitution was not transformative on the issue of legislative privilege but was rather an explicit colonial continuity; and (ii) that Article 105 though not transformative in itself, was pregnant with transformative potential. This post is not very concerned with part (ii) of Lahiri’s argument. It does, however, engage with part (i) seriously. I argue that the Indian Constitution was transformative qua the issue of legislative privilege, in at least one sense of the term, and in exactly the sense that Lahiri asserts it not to be. Moreover, it certainly cannot be regarded as a “colonial continuity”. In fact, Article 105 radically reverses a significant feature of the colonial rule, i.e., the pre-eminence of British Parliament over the colonial legislatures.
Fixing Concepts – “Transformative Constitution” and “Colonial Continuity”
It would help to fix concepts a little here. What do we mean by a “transformative constitution” and “colonial continuity”?
As I understand it, there can be at least two conceptions of a “transformative” statute or constitution. In one sense, it could simply mean that the law “stands transformed” by virtue of statute or constitution that is enacted, i.e., a new law is brought into force that represents a radical and clean break from the position of law that preceded it. Or it could mean that the statute or constitution “has a transformative purpose”, i.e., that a change in law is brought about that is purposed to have a transformative impact on its field of action. The first conception focuses on the change in the content of the law itself and asks if the law has transformed beyond recognition. The second conception focuses on whether the change in law (which may or may not in itself be radical) is purposed to transform something else (other than the law) radically.
Differentiating between these two conceptions of a “transformative constitution” has analytical utility. It recognizes the possibility that the parts of the constitution can be transformative in the former sense, i.e., it brings about a radical change in the content of the law, while not necessarily having a “transformative purpose”. Similarly, a transformative purpose could potentially be achieved through minor changes in the law that could not be regarded as transformative of the content of law.
In Kalpana Mehta, Chandrachud J., appears to use the “transformative constitution” in both senses. He states that the constitution’s “vision is about achieving a social transformation… that seeks to place the individual at the forefront of its endeavors” (transformative purpose). This transformative purpose is achieved by transforming the content of law. Thus, he states:
“Crucial to that transformation is the need to reverse the philosophy of the colonial regime, which was founded on the subordination of the individual to the state… … For a colonial regime, individuals were subordinate to the law. Individuals were subject to the authority of the state and their well-being was governed by the acceptance of a destiny wedded to its power. Those assumptions which lay at the foundation of colonial rule have undergone a fundamental transformation for a nation of individuals governed by the Constitution. The Constitution recognises their rights and entitlements. Empowerment of individuals through the enforcement of their rights is the essence of the constitutional purpose.”
Thus, as noted by Chandrachud J., the conferment of fundamental rights to individuals was transformative in both senses of the word. It was purposed to achieve social transformation, and was transformative in the content of Indian law, by granting rights to individuals against the state in a radical, new way.
However, a law need not always be transformative in both senses of the term. In some cases, the content of law could stand radically transformed because of a preceding social transformation. Here, the law could stand transformed by a new “constitution”, but not with any transformative purpose. As I will seek to demonstrate here, the Constitution clearly transformed the “content” of the law of legislative privilege in India. Whether this change in the law’s “content” on legislative privilege was purposed to bring about social transformation of another sort, or whether it was occasioned by a preceding/underlying social transformation is less clear.
It would also help to fix the meaning of the term “colonial continuity”. I should note that Chandrachud J. does not use this term, which Lahiri uses in his blog post. However, Lahiri is not clear on what he means by the term, though he indicates that Art. 105, by referring to the British House of Commons “establishes a colonial continuity”. If by this, he merely means that any constitutional provision referring to / establishing linkages with an institution of the erstwhile colonizer establishes a “colonial continuity”, then the concept does not really have much analytical utility. It says nothing about whether there was anything inherently “colonial” about the law on legislative privilege, and whether this “colonial” aspect of the law was “continued” by the Constitution. If, however, Lahiri means “colonial continuity” to refer to the continuation of a fundamental feature of colonial project, then Article 105 does no such thing, and Lahiri is incorrect in stating that it does. In fact, as I see, Article 105 is a radical break from the colonial law on legislative privilege in India, and the constitution fundamentally “transformed” the law in this regard, as I will illustrate below.
Chandrachud J. on legislative privilege
Chandrachud J. seems to assume in his opinion that the law on parliamentary privileges as enacted by the Constitution was purposed to certain ends of social transformation, i.e., the assertion of rights and access to justice. This is clear when he states:
“Hence, in understanding the issues which have arisen before the Court in the present reference, it is well to remind ourselves that since the Constitution is about transformation and its vision is about empowerment, our reading of precepts drawn from a colonial past, including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice.”
He provides little evidence to substantiate any such transformative purpose to Article 105 of the Constitution, and this is rightly pointed out by Lahiri in his post. Thus far, Lahiri’s analysis is excellent. I also have no quarrel with the larger point which Lahiri makes, i.e., that there must be rigour in invoking the notion that the constitution is a “transformative document” when it is sought to be used as an interpretive tool. When invoking the “transformative constitution” as an aid to interpretation, judges must necessarily ask: (i) whether or not that part of the Constitution that they are interpreting was transformative: (ii) in what sense was it transformative, i.e., did it transform the content of pre-existing law? (or) did it have a transformatory purpose?. The “transformative constitution” should not be used as a carte blanche to interpret any and all parts of the Constitution in a free-wheeling liberal way. Indeed, Lahiri’s is an important cautionary note struck at a time when the idea of the “transformative constitution” appears to be gaining substantial recognition. Too often have Indian courts and academics used flowery language to mask flawed logic and lazy reasoning.
Why Article 105 cannot be regarded a “colonial continuity”
After correctly identifying Chandrachud J’s failure to identify or argue for a “transformative purpose” behind Article 105, Lahiri incorrectly goes on to assert that that Article 105 (both as originally enacted and after the 42nd and 44th constitutional amendments) is an instance of explicit “colonial continuity”. He bases his assertion on the fact that Article 105(3) made the privilege rules of Indian Parliament effectively the same as the British House of Commons. This was done by the original constitutional text through explicit reference to the House of Commons, and after the 44th amendment, through a slightly circuitous route. According to Lahiri, this explicit reference to the privileges of the British House of Commons creates an explicit colonial continuity”. I argue that this in incorrect. On the contrary, Article 105 radically reverses a significant feature of the colonial rule, i.e., the pre-eminence of British Parliament over the colonial legislatures.
Lahiri’s analysis is incomplete in one crucial respect. He fails to ask: what were the privileges enjoyed by pre-Constitutional legislative bodies in India? Surely, “continuity” in the context of an Indian parliament would make sense only when viewed with predecessor legislative bodies in India. When thus viewed, the transformative character of Article 105 becomes immediately apparent. It was indeed transformative, as originally enacted. A large part of the analysis that follows borrows heavily from an excellent research paper by P.N.Malhan of the Punjab University, published in 1942 in the Indian Journal of Political Science. The paper provides a very good picture of the privileges enjoyed by pre-constitutional colonial legislatures in India, under both the Government of India Acts 1919 and 1935.
The legislative privileges enjoyed by colonial legislatures in the British Commonwealth were radically different from those enjoyed by British Parliament. Indeed, British Parliament (and its constituent houses) was always regarded as a class apart, which derived its sanction and authority, not just by virtue of its status as a “sovereign legislative body”, but also on account of its status as the “High Court of Parliament”. The privileges of British Parliament rest upon its own law called the “lex et consuetudo Parliamenti” (i.e., the law and custom of Parliament) and upon certain specific statutory grants of privilege. In contrast, colonial legislatures have only very limited powers. As Halsbury puts it:
“Without express grant, a colonial legislature possesses no power to protect itself against obstruction, interruption, or disturbance of the proceedings by misconduct of any of the members in the course of those proceedings, except such as are necessary to the existence of such a body and the proper exercise of the functions which it is intended to execute. Whatever in a reasonable sense is necessary for those purposes is impliedly granted, whenever any such legislative body is established by competent authority. For those purposes protective and self-defensive powers only and not punitive are necessary. There are Legislative Assemblies in the British Colonies, which have, in the absence of express grant, no power to adjudicate upon, or punish for contempts committed either in their presence or beyond their presence.”
The position of colonial legislatures in India were no different from other parts of the Commonwealth. In comparison to British Parliament, they possessed woefully restricted privileges. As Malhan put it, the framers of the Government of India Act 1919 “summarily dismissed” the vital problem of privileges of the Legislative Councils, by enacting minimal protections. Despite calls for reform on this front, privileges were not substantially increased in the remaining period of Indian’s colonial history. Incremental increases in privileges were secured by the Legislative Members Exemption Act, 1925. The Government of India 1935 gave a little more importance to the issue, but interestingly, in language strikingly similar to Article 105, established an explicit continuity in privileges of the Chambers of Provincial Legislatures with the privileges that Legislative Councils of the Province used to previously enjoy (note that the continuity is with previous colonial legislatures in India and not British Parliament). Strikingly, it also had transformative potential of a similar nature to Article 105, albeit one that was more limited. Section 71 of the Government of India Act, 1935 provided as follows:
“71.-(1) Subject to the provisions of this Act and to rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in every Provincial Legislature, and no member of the Legislature shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a Chamber of such a Legislature of any report, paper, votes or proceedings.
(2) In other respects the privileges of members of a Chamber of a Provincial Legislature shall be such as may from time to time be defined by Act of the Provincial Legislature, and, until so defined, shall be such as were immediately before the commencement of this Part of this Act enjoyed by members of the Legislative Council of the Province.
(3) Nothing in any existing Indian law, and, notwithstanding anything in the foregoing provisions of this section, nothing in this Act, shall be construed as conferring, or empowering any Legislature to confer, on a Chamber thereof or on both Chambers sitting — together or any committee or officer of the Legislature, the status of a court, or any punitive or disciplinary powers other than the power to remove or exclude persons infringing the rules or standing orders, or otherwise behaving in a disorderly manner.”
The upshot of the above is this. It could be argued that one of the features of the colonial project was the pre-eminence of British Parliament over colonial legislatures. One manifestation of this pre-eminence was in the special privileges that British Parliament had that colonial legislatures, including colonial legislatures in India, did not. Article 105 of the Constitution represents a radical break from the past, by conferring the same privileges upon Indian Parliament that were enjoyed by the British Parliament at the time the Constitution came into force. The equation of Indian Parliament to British Parliament is to be viewed as a radical act that is a complete break from a colonial past which subordinated Indian Parliament to British Parliament. It can by no means be regarded as an “explicit constitutional continuity” as Lahiri puts it. In addition, I would argue that the Article 105 was indeed “transformative”, just not in the way that Chandrachud J. meant it. It does not seem to have a discernable “transformative purpose” as Lahiri puts it, at least in terms of social transformation. Without doubt, however, it legislates a substantial transformation in the law on legislative privilege in India.
 Halsbury’s Laws of England (1936 Edition), Vol. Parliament, Part VII, Para. 697 (as quoted in Malhan, supra)
 The transformative potential in Section 71(2) was limited by Section 71(3). The privileges could be increased through legislation but could not confer upon Chambers of Legislature a power to punish or discipline akin to that enjoyed by a court.