In a deliberative democracy, the aspirations of the people are met by discourse in democratic institutions. The foremost among these institutions are Parliament and the State Legislatures. The object of the Constitution to give life and meaning to the aspirations of the people is carried out by its representatives through legislative business, deliberations, and dialogue. Parliament is called the “grand inquest of the nation.”
Not only can the actions and legislative priorities of the government of the day be scrutinised and criticised to hold it accountable, but Parliament also acts as a forum for ventilating the grievances of individuals, civil society, and public stakeholders. When the space for deliberation in the legislature shrinks, people resort to conversations and democratic actions outside the legislature.
This privilege of the citizens to scrutinise the proceedings in Parliament is a concomitant right of a deliberative democracy which is a basic feature of the Constitution. Our Constitution intended to create institutions where deliberations, views and counterviews could be expressed freely to facilitate a democratic and peaceful social transformation.
Parliament is a quintessential public institution which deliberates on the actualisation of the aspirations of all Indians. The fulcrum of parliamentary privileges under a constitutional and democratic set up is to facilitate the legislators to freely opine on the business before the House. Freedom of speech in the legislature is hence a privilege essential to every legislative body.
A deliberative democracy imagines deliberation as an ethic of good governance and is not restricted to the parliamentary sphere alone. The opinion of Sanjeev Khanna, J. in Rajeev Suri v DDA,[1] elucidates the contours of deliberative democracy as follows:
“653. Deliberative democracy accentuates the right of participation in deliberation, in decision-making, and in contestation of public decision-making. Contestation before the courts post the decision or legislation is one form of participation. Adjudication by courts, structured by the legal principles of procedural fairness and deferential power of judicial review, is not a substitute for public participation before and at the decision-making stage.
In a republican or representative democracy, citizens delegate the responsibility to make and execute laws to the elected government, which takes decisions on their behalf. This is unavoidable and necessary as deliberation and decision-making is more efficient in smaller groups. The process requires gathering, processing and drawing inferences from information especially in contentious matters. Vested interests can be checked. Difficult, yet beneficial decisions can be implemented.
Government officers, skilled, informed and conversant with the issues, and political executive backed by the election mandate and connected with electorate, are better equipped and positioned to take decisions. This enables the elected political executive to carry out their policies and promises into actual practice.
Further, citizens approach elected representatives and through them express their views both in favour and against proposed legislations and policy measures. Nevertheless, when required draft legislations are referred to Parliamentary Committees for holding elaborate consultation with experts and stakeholders.
The process of making primary legislation by elected representatives is structured by scrutiny, consultation and deliberation on different views and choices infused with an element of garnering consensus. …
656. However, delegation of the power to legislate and govern to elected representatives is not meant to deny the citizenry’s right to know and be informed. Democracy, by the people, is not a right to periodical referendum; or exercise of the right to vote, and thereby choose elected representatives, express satisfaction, disappointment, approve or disapprove projected policies. Citizens’ right to know and the Government’s duty to inform are embedded in the democratic form of governance as well as the fundamental right to freedom of speech and expression.
Transparency and receptiveness are two key propellants as even the most competent and honest decision-makers require information regarding the needs of the constituency as well as feedback on how the extant policies and decisions are operating in practice. This requires free flow of information in both directions.
When information is withheld/denied suspicion and doubt gain ground and the fringe and vested interest groups take advantage. This may result in social volatility. [ With reference to Olson’s 7th implication, “7. Distributional coalitions … reduce the rate of economic growth…”. ‘The Rise and Decline of Nations’ by Mancur Olson and subsequent studies.]”
The freedom of elected legislators to discuss and debate matters of the moment on the floor of the House is a key component of a deliberative democracy in a Parliamentary form of government. The ability of legislators to conduct their functions in an environment which protects their freedom to do so without being overawed by coercion or fear is constitutionally secured.
As citizens, legislators have a fundamental right to the freedom of speech and expression. Going beyond that, the Constitution secures the freedom to speak and debate in the legislatures both of the Union and States. This is the protection afforded to individual legislators. The recognition of that right is premised on the need to secure the institutional foundation of Parliament and the State legislatures as key components of the dialogue, debate and critique which sustains democracy.
History and development
In the Indian context, deliberative democracy as well as the essential privilege of freedom of speech in legislatures cannot be understood without reference to its history and development in the aftermath of the struggle for independence from colonial rule. India provides an example in history where representative institutions have evolved in stages. The privileges of legislatures in India have been closely connected with the history of these institutions.
This history can be traced to the history of parliamentary privileges in the House of Commons in the UK as well as the struggle of the Indian Legislatures to claim these privileges under colonial rule. The steps which were initiated under colonial rule to bring political and parliamentary governance to India always fell short of the aspirations of Indians. This can primarily be attributed to the fact that British rule was resistant to the desire of Indians to be independent.
Hence, the Indian legislatures were not acknowledged to have comparable privileges to those of the House of Commons in the UK.
In Kielly v. Carson[2], the Privy Council had propounded that the House of Commons in the UK had acquired privileges by ancient usage and colonial legislatures had no lex et consuetudo parliament or the law and custom of Parliament as their rights emanated from a statute. This implied that there were no inherent rights granted to legislatures under colonial rule.
Under the rule of the East India Company, law making lay in the exclusive domain of the executive till 1833. The Government of India Act 1833 redesignated the Governor-General of Bengal as the Governor-General of India with exclusive legislative powers. The Governor-General was to have four members one of whom would be a law member who was not entitled to act as a member of the Council except for legislative purposes.
This was an introductory measure for legislatures in India because the Council of the Governor-General would hold distinct meetings to transact its executive functions and legislative functions. This procedure was envisaged for convenience in enacting laws in the vast and diverse social milieu in India rather than a desire to provide representation as a means for framing better laws.
However, reflecting the need for legislative privileges in carrying out the duties of the legislators, the first law member, Lord Macaulay, made efforts to secure some special facilities in the nature of powers by his draft standing orders. These special facilities included providing complete information on the subject of the legislation, the right to be present in all meetings of the Council of the Governor-General, freedom of speech, and freedom of voting.[3]
The privileges of attendance and voting even in non-legislative business were extended by the Charter Act 1853. It marked a further separation of the executive and legislative functions. The Legislative Council was to have additional members to help transact the legislative business and give their independent considerations to the laws under scrutiny.
These members in the Legislative Council did not have any privileges by statute, but the absence of restrictions on their freedom of speech was construed as conferring inherent rights and privileges on them. The Council therefore attempted to assume to itself powers akin to a mini Parliament modelled around the House of Commons in the UK. The Legislative Council under the Acts of 1833 and 1853 had the power to frame their own rules of procedure.
This power was taken away in the Indian Council Act 1861. However, Section 10 of the 1861 Act introduced between six and twelve non-official members into the Legislative Councils, who could be British or Indians. There was an implicit recognition of the freedom of speech and vote of these additional members. The British Parliament had recognised the existence of the privilege for the members of the Indian Councils, which was also confirmed by the Secretary of State for India.
Nevertheless the provisions of the 1861 Act were sufficiently stringent and did not allow the Council to have any activity beyond the limited sphere prescribed by the Act. Moreover, there was a marked difference between the freedom of speech effectively enjoyed by official members and nominated Indian members.
The Government of India Act 1909 marked a significant shift in the evolution of India’s political institutions. The Act allowed more Indians to be a part of Legislative Councils and enlarged their functions. Members were allowed to ask questions and supplementary questions to the executive. The Act was a way forward for electoral and representative governance by prescribing the indirect election of Indians to the Council. However, even in these Councils, discussion on certain subjects was not permitted.
Non-official members continued to assert the privilege of free speech in the Council. Despite being indirectly elected, the Indian members of legislatures in India diluted the rigidity of colonial governance in India. In the absence of official support, privileges grew as a convention rather than law. The executive felt at liberty to violate the privileges of the Legislative Council and at any rate maintained that the Councils in India did not have any privilege akin to the UK House of Commons.
The Government of India Act 1919 separated the legislatures from executive control. It introduced diarchy, by prescribing two classes of administrators – the Executive councillors who were not accountable to the legislature and the ministers who would enjoy the confidence of the legislature. The Act extended more powers to the legislatures than previously enjoyed by them. However, members were restricted on the range of subjects which they could discuss, participate in and vote upon. Many privileges were not specified in the 1919 Act or rules of the procedure of the House.
Nevertheless, the legislature claimed privileges as an inherent right of the legislature in the face of an unwilling executive. The reason for the hesitation of the colonial Government of India was that a government run by a foreign power was not willing to extend parliamentary privileges to Indian legislators as a recognition of their possessing sovereign powers.
The 1919 Act gave a qualified privilege of freedom of speech to the Houses of Legislature. Section 24(7) of the 1919 Act read thus:
“(7) Subject to the rules and standing orders affecting the Council, there shall be freedom of speech in the Governors’ Legislative Councils. No person shall be liable to any proceedings in any court by reason of his speech or vote in any such Council or by reason of anything contained in any official report of the proceedings of any such Council.”
A corresponding provision was made in Section 11(7) of the Act with respect to provincial Legislative Councils. The freedom of speech in the Legislative Councils was subject to the Rules promulgated by the Governor-General. Therefore, while freedom of speech was extended to the Legislative Councils, they were ultimately made subject to the pleasure of the Governor-General and the Secretary of State for India for the legislature’s rule making power.
The Act therefore did not make provisions to grant freedom of speech to Indian legislatures but rather aimed to place restrictions on the freedom of speech in the House. These restrictions materially impeded the ability of the legislatures to hold discussions on issues of public importance and introduce legislation. The Act however did grant the legislature power to define its own privilege.
A committee was set up in 1924 within a few years of the introduction of the Government of India Act 1919. The committee was tasked with enquiring into the difficulties or defects in the 1919 Act and exploring remedies for securing them. The Reforms Committee of 1924 made reference to the privileges of Indian legislative bodies and opined that:
“…at present such action would be premature. At the same time we feel that the legislatures and the members thereof have not been given by the Government of India Act all the protection that they need. Under the statute there is freedom of speech in all the legislatures and immunity from the jurisdiction of the Courts in respect of speeches or votes. Under the rules the Presidents have been given considerable powers for the maintenance of order, but there the matter ends.”
Interestingly, the committee suggested that certain additional privileges be granted to Indian Legislatures. The committee further recommended introducing a penal provision for influencing votes within the legislature through inter alia bribery. The report stated:
“We are given to understand that there are at present no means, of dealing with the corrupt influence of votes within the legislature. We are unanimously of opinion that the influencing of votes of members by bribery, intimidation and the like should be legislated against. Here again we do not recommend that the matter should be dealt with as a breach of privilege. We advocate that these offences should be made penal under the ordinary law.”
The government introduced a Legislative Bodies Corrupt Practices Bill which proposed to penalise (i) the offering of bribe to a member of a legislature in connection with his functions; and (ii) the receipt on demand by a member of the legislature of a bribe in connection with his functions. The Bill ultimately lapsed and was not reintroduced.
The provisions of the 1919 Act were substantially retained in Section 28(1) of the Government of India Act 1935. Section 28(1) read thus:
“(1) Subject to the provisions of this Act and the rules and standing orders regulating the procedure of the Federal Legislature, there shall be freedom of speech in the 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 either Chamber of the Legislature of any report, paper, votes or proceedings.”
A corresponding provision was made in Section 71(1) of the 1935 Act with respect to Provincial Legislatures. The House was empowered to make rules for the conduct of proceedings. However, they were always to give way to the rules framed by the Governor-General for the House. Parliamentary privileges had struck root in India on legislators demanding parity with the UK House of Commons with reasonable adjustments to account for Indian needs.
This was because legislators in India felt that their discharge of legislative functions would be adversely affected in the absence of these privileges. Prominent among the demands of legislators were the power to punish for contempt of the House, supremacy of the Chair in matters of the House, and freedom of speech and freedom from arrest to allow members to partake in the proceedings and discharge their functions.
At no point were these privileges demanded as a blanket immunity from criminal law. Even in the face of colonial reluctance, the demand for parliamentary privileges in India was always tied to the relationship which it bore to the functions which the Indian legislators sought to discharge.
This background prevailed when the Constituent Assembly was deciding the fate of Articles 85 and 169 of the draft Constitution which have since become Articles 105 and 194 of the Constitution. Our founding parents intended the Constitution to be a ‘modernizing’ force.
Parliamentary form of democracy was the first level of this modernizing influence envisaged by the framers of the Constitution. The Constitution was therefore born in an environment of idealism and a strength of purpose born of the struggle for independence. The framers intended to have a Constitution which would light the way for a modern India.
When the Constituent Assembly convened to discuss Article 85 of the draft Constitution, Mr HV Kamath moved an amendment to remove the reference to the House of Commons in the UK and replace it with the Dominion Legislature in India immediately before the commencement of the Constitution. Opposing this amendment Mr Shibban Lal Saxena said,
“So far as I know there are no privileges which we enjoy and if he wants the complete nullification of all our privileges he is welcome to have his amendment adopted.”
The members of the Constituent Assembly were therefore keenly aware that their privileges under the colonial rule were not ‘ancient and undoubted’ like the House of Commons in the UK but a statutory grant made by successive enactments and assertion by legislatures.
[1] (2022) 11 SCC 1.
[2] (1841-42) 4 Moo. PC 63.
[3] SK Nag, Evolution of Parliamentary Privileges in India till 1947, Sterling Publication, (1978), 317-18