STATES formerly ruled by Britain adopted British constitutional law. They adopted the judicial system by perverting rules and practices governing British appointments. This is most apparent in the relations between parliament and the courts and the scope of parliamentary privileges.

In India, parliamentary privileges are abused to punish the press and stifle dissent. Nowhere is this more apparent than sub judice rule. Indira Gandhi imposed president’s rule in several states as soon as she returned to power. Petitions were filed in court. In chair in the Rajya Sabha was a former chief justice of India, M. Hidayatullah, who knew which way the wind was blowing. Astonishingly, he ruled that the matter was now sub judice and could not be discussed in parliament.

The courts decide on legality; parliament decides on the political correctness of the decision on the wisdom and expediency of the act. The discretion belongs to the speaker. In India, he is chosen by the party in power.

A distinguished authority on constitutional law, Prof S.A. de Smith, holds that the sub judice rule has “been narrowed to enable the speaker to admit questions in his discretion though they relate to matters pending adjudication in a civil court, if the issue raised concerns a matter of national importance or the exercise of a minister’s discretion challengeable only on narrow grounds before the court”.

Parliamentary privileges are abused to stifle dissent.

The 1972 resolution of the House of Commons added that “in exercising its discretion the chair should not allow reference to such matters if it appears that there is a real and substantial danger of prejudice to the proceedings”. This is the very test applied in cases of contempt of court — “a real and substantial danger of prejudice to the court proceedings”. The speaker can even waive the sub judice rule altogether as the speaker of the House of Commons did on July 22, 1977.

In the Sunday Times case, Lord Diplock said that “discussion, however strongly expressed, on matters of general public interest of this kind is not to be stifled merely because there is litigation pending arising out of particular facts to which general principles discussed would be applicable. If the arousing of public opinion by this kind of discussion has the indirect effect of bringing pressure to bear upon a particular litigant… this must be borne because of the greater public interest in upholding freedom of discussion on matters of general public concern”.

This right of free discussion belongs to the Indian citizen in law. It would be an anachronism if the members of the Rajya Sabha enjoyed less freedom. But that would be the inevitable result of Mr Hidayatullah’s ruling. A matter of national concern arises. The government is accused of abusing an emergency provision in the constitution (Article 356). But the house is forbidden to discuss it because the legality of the executive’s action is in issue before the high courts. Let alone the legal aspects, even those concerning its propriety or political soundness may not be discussed at all.

Referring to the sub judice rule the speaker of the House of Commons remarked on July 29, 1976, that he intended to exercise his discretion in favour of freer debate in every case where he properly could.

India’s constitution imposes limits on parliament, state legislatures and the courts in regard to discussion of each other’s conduct. Articles 211 and 212 read: “No discussion shall take place in the legislature of a state with respect to the conduct of any judge of the supreme court or of a high court in the discharge of his duties. The validity of any proceedings in the legislature of a state shall not be called in question on the ground of any alleged irregularity of procedure.”

What if a judge uses intemperate language or takes manifestly partisan cases? Is parliament limited to the impractical and cumbersome process of his impeachment?

The classic case is that of Jalianwala Bagh so well brought out by a jurist: “When it is relevant to the issue under adjudication, a judge may comment on the activities or omissions of government departments or the police, provided that it is done in a dignified manner. Judges, however, do not comment on the wisdom of the policy of the government or on matters which are not relevant to the case before them. Naturally, judges are cautious in their comments on controversial matters….”

In 1924, justice McCardie heard a libel action brought by Sir Michael O’Dwyer, lieutenant governor of Punjab, regarding atrocities committed by his administration. These included orders by Gen Reginald Dwyer to open fire at a mob during disturbances in India. McCardie said: “…I express my view that General Dyer in the grave and exceptional circumstances, acted rightly, and… was wrongly punished….” It surely called for censure by parliament.

The solution lies in mutual respect and restraint.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, October 3rd, 2020