Debating India


Power and restraint

Anupam GUPTA

Sunday 30 November 2003, by GUPTA*Anupam

Article paru dans Frontline, Volume 20 - Issue 24, November 22 - December 05, 2003.

Legislative behaviour of the kind witnessed in Tamil Nadu can only set the parliamentary clock back and reinvigorate efforts to strip the legislature of its contempt power altogether.

A HUNDRED and twenty-three years after the British House of Commons, the mother of Parliaments, last exercised the power of committal for contempt, and nearly four decades after the Supreme Court of India subjected that power to the discipline of judicial review, the Tamil Nadu Assembly has sprung a rude surprise on the nation and prised open the Pandora’s box of parliamentary privilege once again.

"Around parliamentary privilege some of the great battles of the Constitution have been fought," Prof. R.F.V. Heuston wrote in 1964. Every schoolboy, he said, knows how Charles I in his high-crowned black hat was met by muttered cries of "privilege, privilege" as he walked up the floor of the House of Commons to press upon Speaker William Lenthall his demand for the arrest of five members who had opposed his policy of taxation. Equally every first-year student of law has come across John Wilkes and Joseph Stockdale, heroes of the struggle for liberty from the despotism of the legislature.

Slapping as it does a wholly unnecessary and undeserved sentence of 15 days’ imprisonment on the Editor, Executive Editor, Publisher and two other senior journalists of The Hindu, the November 7 resolution of the Tamil Nadu Assembly sets a precedent of its own kind in constitutional history. Described as "the keystone of parliamentary privilege", the privilege of the House of Commons to commit for contempt for a period not exceeding the duration of the session cannot legally be doubted. But it is a privilege that has, on the testimony of high authority and more authorities than one, lain dormant in the House of Commons since as far back as 1880.

The significance of this repeated reference to the House of Commons, our erstwhile imperial sovereign, is that the powers, privileges and immunities of that House have, by conscious design of the founding fathers, been vested in or transferred to Parliament and the State legislatures under the Constitution.

"Far from it being infra dig," Alladi Krishnaswamy Ayyar told the Constitutent Assembly in May, 1949, "this practice (of reference to the privileges of the House of Commons) has been followed in Australia, in Canada and in other Dominions with advantage... ." Advocate-General of Madras from 1929 to 1944 and a member of the Drafting Committee headed by Dr. B.R. Ambedkar, Ayyar was among the most learned lawyers in the Constituent Assembly with a highly advanced understanding of Constitution-making.

"The right to lock up a citizen for what Parliament regards as contempt of itself is not an easy matter to define," Ambedkar himself told the Assembly a fortnight later. "Nor is it easy to say what are the acts and deeds of individual members which bring Parliament into dispute." He had, he said, very carefully gone over Erskine May’s Parliamentary Practice, the source-book of knowledge with regard to the immunities and privileges of Parliament. If the Assembly were to enact a complete code of privileges and immunities of Parliament based upon what May has to say on the subject, "I have not the least doubt in my mind that we will have to add not less than 20 or 25 pages" to the Constitution.

Except, therefore, for the sentimental, patriotic objection to the reference to the House of Commons, he said, "there is no other alternative way open to us. That being so, I suggest that this article be adopted in the way in which we have drafted it."

That is how Articles 105(3) and 194(3), relating to Parliament and the State legislatures respectively and identifying their privileges with those of the House of Commons, came to be a part of the Constitution and continue, with textual changes of no practical significance, to govern us even today.

Not only Ambedkar but even Alladi Krishnaswamy Ayyar, it must in all fairness be added, spoke pointedly of the Commons’ privilege to punish for contempt. Both the Australian and Canadian Parliaments had been held to possess a similar power, he said, and (referring to a Calcutta ruling that Indian legislatures had no such power before Independence) asked: "Are you going to deny to yourself that power? That is the question."

The existence of the power is one thing, however; its exercise, entirely another. And even as legislatures in India cannot, under the Constitution, possess a privilege that does not vest in the House of Commons, the restraint displayed by the Commons in exercising a particular privilege has a vital bearing on the point.

Taking off with the committal of its own members, John Storie and Arthur Hall in the 16th century - the first in 1548 and the second in 1581 - the Commons swung menacingly into the 17th century by summoning two Judges of the King’s Bench, Sir Francis Pemberton and Sir Thomas Jones, and eventually committing them to prison in 1689 for presuming to sit in judgment over the penal jurisdiction of the House in Jay vs Topham.

Emboldened, presumably, by this victory over the Judges, the number of instances of committal at the order of the Commons rose sharply thereafter and was calculated by C.W. Williams Wynn in 1810 to be a "little less than a thousand". Between 1810 and 1880, as we learn from Erskine May, there were 80 more committals, the honour of being the last person ever to be detained thus going to the famous Charles Bradlaugh.

The finical exactitude displayed by the editors of Parliamentary Practice (22nd edition) in terming Bradlaugh’s detention 123 years ago as the "latest case" of detention by the Commons, rather than the last, cannot obscure the true import of the Commons’ studied inaction over such a long period.

The import is best captured by Prof J.A.G. Griffith and Michael Ryle in their work Parliament: Functions, Practice and Procedures, another leading authority based on extensive research and personal experience, the second of its two authors being Clerk of Committees in the House of Commons.

"In modern times", they state, "as the powers and privileges of Parliament have become better defined, more generally accepted and less challenged ... . the power to commit offenders to prison, or into the custody of the Serjeant-at-Arms, has fallen into disuse. The last person committed by order of the House was Bradlaugh in 1880."

Surely, then, a committal for contempt by a legislature in the 21st century raises a serious question of propriety and reasonableness in the exercise of jurisdiction, even if it does not, strictly speaking, raise a question of jurisdiction per se.

LOOKING at the matter from the converse angle in the Uttar Pradesh Presidential Reference Case of 1964, the Supreme Court had observed: "We ought to make it clear that we are dealing with the question of jurisdiction and are not concerned with the propriety and reasonableness of the exercise of such jurisdiction."

By virtue of the provisions of Articles 32 and 226 of the Constitution, read with Article 21, it ruled that the jurisdiction of the Supreme Court and the High Courts in India to examine the validity of a warrant issued by a legislature can never be ousted.

Any claim to the contrary, inspired by the doctrine of conclusiveness, or non-justiciability, of a general warrant issued by the House of Commons - a doctrine accepted by the English courts ever since the case of the Sheriff of Middlesex (1840) - must, held the Supreme Court, be rejected as plainly inconsistent with our Constitution. In the parlance of parliamentary privilege, a `general’ warrant is a warrant that refers generally to the committal of a person for contempt or gross contempt or breach of privilege, without disclosing the facts constituting the contempt or breach.

Not amongst the most rigorous of judicial opinions from the analytical point of view, and often begging the question, the majority opinion of Chief Justice Gajendragadkar in the U.P. Presidential Reference Case has come under heavy fire from the late H.M. Seervai, who had appeared and argued on behalf of the U.P. Assembly before the Supreme Court.

Spanning over 40 pages of Volume 2 of the fourth edition of his Constitutional Law of India, published in 1993, Seervai’s impassioned critique of the majority opinion is a masterpiece of legal literature that no serious student of parliamentary privilege can afford to miss.

And yet, with great respect to Seervai, the Supreme Court’s appreciation of the origin of the Commons’ power of committal, affecting its entire approach to the subject, is closer to the truth than Seervai’s repudiation of it.

"The origin of a power which is judicial in nature is to be found naturally in the medieval conception of Parliament as primarily a court of justice - the `High Court of Parliament’... .. It was probably owing to the medieval inability to conceive of a constitutional authority otherwise than as in some sense a court of justice that the Commons succeeded in asserting their right to commit offenders on the same terms as the (House of) Lords." These words of May, cited by the Supreme Court, which (as Seervai complains) does not go beyond May, are fully corroborated by an authority of even greater eminence, Sir William Holdsworth, whose prodigious 14-volume work on the history of English law will probably never be surpassed.

An idea that developed with the consolidation of the powers of Parliament, "the whole idea of parliamentary privilege", observes Prof. Holdsworth in Volume 2, "springs from the notion that it is a court which like other courts must have its peculiar and appropriate privileges; and to the end many of these privileges - notably the power to imprison for contempt - retain a strong analogy to the privileges of other courts."

Because, from the first, he adds, Parliament had been regarded as possessing the status of a superior court, its powers were never fettered by those archaic rules which so seriously hampered representative assemblies on the Continent. And because it was regarded as the highest court known to the law, the lawyers never took a narrow or a technical view of its powers and privileges. Consequently, it acquired ample privileges and a flexible code of procedure which made it an organ of the state as definite as any of the courts of common law, but with a perfectly distinct character of its own. Its acts and proceedings were duly recorded like those of the other courts; and this gave them a "permanence and an authority", which enabled the exercise of its power in the Middle Ages to be used as precedents in a later age.

Conscious of this likeness of the parliamentary contempt power to the judicial, and anxious to avoid the possibility of any fledgling Indian legislature ever taking it into its head to imitate the Lords or the Commons in Westminister, the British incorporated Sections 28(3) and 71(3) in the Government of India Act, 1935.

"Nothing in any existing Indian law", read clause (3) of Article 71, and "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."

Clause (3) of Section 28 contained an identical provision with respect to the Federal legislature (which, as is well known, and unlike the provincial legislatures governed by Section 71, never actually came into being).

Legislative behaviour such as the November 7 resolution of the Tamil Nadu Assembly - and the intimidatory, authoritarian, even extra-territorial, manner in which it was sought to be executed till the Supreme Court stepped in to grant stay - can, in the ultimate analysis, serve only to set the parliamentary clock back and reinvigorate efforts to strip the legislature of its contempt power altogether.

"The practice of a ruling power in the state is but a feeble proof of its legality," said Lord Denman, Chief Justice of the Court of Queen’s Bench in Stockdale vs Hansard (1839), the judgment in which case provides, as noted by May, the fullest account of the relation between the law of Parliament and the general law and of the courts’ view of their power to decide on questions of privilege.

In truth, no practical difference can be drawn, said Lord Denman, between the right to sanction all things under the name of privilege and the right to sanction them by merely ordering them to be done.

Comparing parliamentary privilege with Crown prerogative during the while Parliament is in session, it must be remembered, ruled the Chief Justice, "that privilege is more formidable than prerogative, which must avenge itself by indictment (in a court) ... .. while privilege, with one voice, accuses, condemns and executes."

More than a century and a half later, that is precisely what happened in Chennai.

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