THE BBC renders high service by telecasting live debates in the House of Commons. To this is added the exceptionally well-informed comments of its outstandingly able political correspondent, Rob Watson. In particular, recent debates this month were most instructive.

The House debated a motion against Prime Minister Boris Johnson, who was accused of lying to the House of Commons about the parties held at his residence at 10 Downing Street.

Could this have happened in the subcontinent? Most certainly not in India. Members of parliament owe their seat to party bosses. A revolt in the party itself is a very remote possibility. Lying does not arouse the same anger here that it does there.

In Britain, a lawmaker owes his nomination to his constituency party, which nominates him by election held by registered members of the party. The parliamentarians so elected, in turn, elect their leader. If the party is in a majority in the House of Commons, the leader of the majority party becomes the prime minister.

Questions of privilege serve as a political weapon in India.

It is obvious that in Britain, the members of a political party are not the slaves of the prime minister. It would take something of volcanic proportions to drive the Indian lawmaker to revolt.

The other lesson is that in Britain, questions of privilege are not regarded as partisan matters, whereas in India, these serve as a political weapon.

In India, the entire structure of parliamentary privileges is based on a monumental error by the founding fathers of the constitution and legislators in the last 72 years since the document came into force.

According to sub-clause 3 of Article 105: “In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this constitution.” What is important is its temporary character ie “until so defined” and the mandate to codify the privileges (“defined by parliament”).

In a leading case, it was admitted by chief justice S.R. Das that if parliament and the state legislatures were to define the privileges by law, that law, like any other, would be subject to fundamental rights. He noted that this might well have been the reason behind the legislatures not making such a law.

In 1964, the UP assembly sent Keshav Singh to prison for contempt of the House. A few days later, it ordered the arrest and production of two high court judges of the Lucknow bench, who had granted him bail, and his advocate who had presented the bail application.

The judges rushed to the Allahabad High Court with writ petitions. A full bench of 28 judges admitted the petitions and granted interim stay of the assembly’s order. The president averted an uglier situation by seeking the supreme court’s advisory opinion on the legal questions.

A special bench ruled: “The content of Article 194(3) must ultimately be determined by courts and not by legislatures.” It went on to state that the high court’s writ jurisdiction wasn’t subject to the privileges and that the right to petition the apex court to enforce fundamental rights, contained in Article 32, was also not subject to privileges. It stated that Article 212(1) exempted from the court’s scrutiny irregularities in legislative proceedings only. But “if the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law”.

Unfortu­nat­e­­ly, the court did not rule that that fundamental rights prevail over privileges. It said: “We do not propose to enter into a general discussion as to the applicability of all the fundamental rights to the cases where legislative powers and privileges can be exercised against any individual citizen of this country.” It asserted: “We are dealing with this matter on the footing that Article 19(1)(a) [freedom of speech] does not apply and Article 21 [right to personal liberty] does.”

In Britain itself, the law of privileges has lost its edge. The courts have the upper hand. They must decide in favour of the citizen and echo the words of chief justice John Holt when the Speaker of the House of Commons tried to bully him. “Go back to your chair, Mr Speaker, within these five minutes or you may depend upon it, I will lay you by the heels in Newgate. You speak of your authority, but I tell you that I sit here as an interpreter of the laws and a distributor of justice and if the whole House of Commons were in your belly I would not stir one foot.”

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

Published in Dawn, April 30th, 2022