The Lawmatics Freedom of Press Series
The members of the parliament have many right including the right to speech without any fear of prosecution in the court of law. But, the Parliament also has the right to regulate its own procedure, and to decide unparliamentarily words and if needed to expunge the remarks of the members from parliament proceeding.
Some days ago, during budged session of parliament, we saw many instances where remarks of opposition members were expunged by Speaker and chairman of Rajyasbha. First, Congress Leader Rahul Gandhi’s remarks on Adani and modi issue were expunged by Loksabha Speaker, then many parts of Rajyesabha Opposition leader Mallikarjun kharge’s speech were expunged and Congress party’s whip Jairam Ramesh’s resolution was also removed from record.
The question arises that if citizens sends the members to parliament as their representative, they should also have right to know what is going on in the parliament. But, this right of citizen is restricted due to the rules of parliament. But, another question arises why these rules were made, what were the causes which compelled the legislature to make such rules?
In the present article, we will trace the origin of such cause.
Parliamentary privilege is defined as “the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals “
According to the same author “privilege, though part of the law of the land, is to a certain extent an exemption from the ordinary law”.
The history of parliamentary privileges in India, is the history of parliamentary privileges to house of commons in Britain. Therefore, we have to start it from the history of Parliamentary privileges in Britain.
Kinds of Privileges to British Parliament
The privileges of Parliament are of two kinds, namely,
(i) those which are common to both Houses and
(ii) those which are peculiar either to the House of Lords or to the House of Commons.
The privileges of the Commons, as distinct from the Lords, have been defined as “the sum of the fundamental rights of the House and of its individual members as against the prerogatives of the Crown, the authority of the ordinary courts of law and the special rights of the House of Lords.
House of Commons in its early days
As pointed out in May’s Parliamentary Practice, 16th Edn., p. 151, in the early days of British History the maintenance of its privileges was of vital importance to the House of Commons. They were necessary to preserve its independence of the King and the Lords and, indeed, to its very existence.
The privileges of the House of Commons have been grouped under two heads, namely,
(1) those demanded of the Crown by the Speaker of the House of Commons at the commencement of each Parliament and granted as a matter of course and
(2) those not so demanded by the Speaker.
Under the first heading come,
(a) freedom from arrest (claimed in 1554),
(b) freedom of speech (claimed in 1541),
(c) the right of access to the Crown (claimed in 1536) and
(d) the right of having the most favourable construction placed upon its proceedings.
The second head
The second head comprises,
(i) the right to the due composition of its own body,
(ii) regulate its own proceedings,
(iii) the right to remove strangers,
(iv) the right to prohibit publication of its debates and
(v) the right to enforce observation of its privileges by fine, imprisonment and expulsion.
Admonition and reprimand were milder forms of punishment. The privileges of the House of Commons under the first head were claimed at the commencement of every Parliament by the Speaker addressing the Lord Chancellor on behalf of the Commons. They were claimed as “ancient and undoubted” and were, through the Chancellor “most readily granted and confirmed by the Crown.
Of the three things thus claimed, two, namely, the freedom of the person and the freedom of speech and certain consequential rights like the right to exclude strangers from the House and the control or prohibition of publication of the debates and proceedings were common to both Houses.
The origin of the custom of secrecy of debate
For a deliberative body like the House of Lords or the House Commons, freedom of speech is of the utmost importance. A full and free debate is of the essence of Parliamentary democracy. Although freedom of speech was claimed and granted at the commencement of every Parliament, it was hardly any protection against the autocratic Kings, for the substance of the debates could be and was frequently reported to the King and his ministers which exposed the members to the royal wrath. Secrecy of Parliamentary debates was, therefore, considered necessary not only for the due discharge of the responsibilities of the members but also for their personal safety.
The original motive for secrecy of debate was the anxiety of the members to protect themselves against the action of the sovereign, but it was soon found equally convenient as a veil to hide their proceedings from their constituencies. This object could be achieved in two ways, namely,
(a) by prohibiting the publication of any report of the debates and proceedings and
(b) by excluding strangers from the House and holding debates within closed doors.
These two powers or privileges have been adopted to ensure the secrecy of debates to give full play to the members’ freedom of speech and therefore, really flow, as necessary corollaries, from that freedom of speech which was expressly claimed and granted at the commencement of every Parliament.
Right to prohibit the publication of the debates
The right to control and, if necessary, to prohibit the publication of the debates and proceedings has been claimed, asserted and exercised by both Houses of Parliament from very old days. In 1628 and again in 1640 the clerk was forbidden to make notes of “particular men’s speeches” or to suffer copies to go forth of any arguments or speech whatsoever the House of Commons of the Long Parliament in 1641 framed a standing order “that no member shall either give a copy or publish in print anything that he shall speak in the House” and “that all the members of the House are enjoined to deliver out no copy or notes of anything that is brought into the House, or that is propounded or agitated in this House”.
In that critical period, it was a necessary precaution. So strict was the House about this privilege that for printing a collection of his own speeches without such leave, Sir E. Derring was expelled from the House and imprisoned in the Tower and his book was ordered to be burnt by the common hangman.
In 1680 to prevent inaccurate accounts of the business done, the Commons directed their votes and proceedings, without any reference to the debates, to be printed under the direction of the Speaker. After the Revolution of 1688 frequent resolutions were passed by both Houses of Parliament from 1694 to 1698 to restrain newsletter writers from intermeddling with their debates or other proceedings or giving any account of minute of the debates. But such was the craving of the people for political news that notwithstanding these resolutions and the punishment of offenders imperfect reports went on being published in newspapers or journals.
Amongst the papers were Boyer’s “Political State of Great Britain“, “London Magazine“, and “Gentleman’s Magazine” in which reports of debates were published under such titles as “Proceedings of a Political Club” and “Debates in the Senate of Magna Lilliputia“.
In 1722 the House of Commons passed the following resolutions:
“Resolved, that no News Writers do presume in their Letters, or other Papers, that they disperse as Minutes, or under any other Denomination, to intermeddle with the Debates, or any other Proceedings, of this House.
Resolved, That no Printer or Publisher of any printed News Papers, do presume to insert in any such Papers any Debates, or any other Proceedings of this House, or any Committee thereof”.
In 1738 the publication of its proceedings was characterised in another resolution of the House of Commons as high indignity and a notorious breach of privilege. The publication of debates in the “Middlesex Journal” brought down the wrath of the House of Commons on the printers who were ordered to attend the House. The printers not having been found warrants were issued for their arrest and one printer was arrested and brought before Alderman John Wilkes who immediately discharged him on the ground that no crime had been committed. Another printer was arrested and brought before another Alderman who, likewise, discharged the prisoner inasmuch as he was not accused of having committed any crime.
By way of reprisal the House of Commons imprisoned the Lord Mayor and an Alderman, both of whom were the members of the House. Both men, on their release, were honoured in a triumphal procession from the Tower of London to the Mansion House. After this political controversy, debates in both Houses continued to be reported with impunity, although technically such reporting was a breach of privilege. Accurate reporting was, however, hampered by many difficulties, for the reporters had no accommodation in the House and were frequently obliged to wait for long periods in the halls or on the stairways and were not permitted to take notes.
The result was that the reports published in the papers were full of mistakes and misrepresentations. After the House of Commons was destroyed by fire in 1834, galleries in temporary quarters were provided for the convenience of reporters, and in the new House of Commons a separate gallery was provided for the Press.
Court on the privileges
In the celebrated case of Wason v. Walter, the plaintiff in that case had presented a petition to the House of Lords charging a high judicial officer with having, 30 years before, made a statement false to his own knowledge, in order to deceive a committee of the House of Commons and praying enquiry and the removal of the officer if the charge was found true. A debate ensued on the presentation of the petition and the charge was utterly refuted. Allegations disparaging to the character of the plaintiff had been spoken in the course of the debate.
A faithful report of the debate was published in the Times and the plaintiff proceeded against the defendant, who was a proprietor of the Times, for libel. It was held that the debate was a subject of great public concern on which a writer in a public newspaper had full right to comment, and the occasion was, therefore, so far privileged that the comments would not be actionable so long as a jury should think them honest and made in a fair spirit, and such as were justified by the circumstances as disclosed in an accurate report of the debate.”
How much prohibition is relevant at present times?
With the facilities now accorded to the reporters, the practice of reporting has improved, and the House, sensible of the advantage which it derives from a full and clear account of its debates, has even encouraged the publication of reports of debates and proceedings that take place in the House. From this it does not at all follow that the House has given up this valuable privilege.
The following passage in Anson’s Law and Custom of the Constitution at p. 174 is significant and correctly states the position: –
“We are accustomed, therefore, to be daily informed, throughout the Parliamentary Session, of every detail of events in the House of Commons; and so we are apt to forget two things. The first is, that these reports are made on sufferance, for the House can at any moment exclude strangers and clear the reporter’s gallery; and that they are also published on sufferance, for the House may at any time resolve that publication is a breach of privilege and deal with it accordingly.
The second is, that though the privileges of the House confer a right to privacy of debate. They do not confer a corresponding right to the publication of debate.”
Frank Thayer at pp. 31-32 expresses the same view in the following terms: –
“Parliamentary privilege as part of the unwritten English Constitution is the exclusive right of either House to decide what constitutes interference with its duties, its dignity, and its independence. Its power to exclude strangers so as to secure privacy of debate closely follows the right of Parliament to prevent the publication of debates. Attendance at Parliamentary debates and the publication of debates are by sufferance only, although it is now recognized that dissemination of information on debates and Parliamentary proceedings is advantageous to English democracy and, in fact, necessary to public safety.
By judicial dictum it has been stated that there is a right to publish fair and accurate reports of Parliamentary debates, but actually the traditional privilege of Parliament continues in conflict with judicial opinion. There is still a standing order forbidding the publication of Parliamentary debates, an order that by custom and the right of sufferance has become practically obsolete; yet the threat of such an order and the possibility of a contempt citation for its abuse, should Parliament deem it advantageous to withhold some particular discussion, serve as a check upon careless reporting and distorted comment.”
The fact that the House of Commons jealously guards this particular privilege is amply borne out by the fact that as late as May 31, 1875, when Lord Hartington sponsored a motion in the House of Commons “that this House will not entertain any complaint in respect of the publication of the debates or proceedings of the House, or of any committee thereof, except when such debates or any proceedings shall have been conducted within closed doors or when such publication shall have been expressly prohibited by the House or any committee or in case of wilful misrepresentation or other offence in relation to such publication” the House of Commons rejected the same outright.
The conclusion deducible from this circumstance is thus summarised in May’s Parliamentary Practice at p. 118: –
“So long as the debates are correctly and faithfully reported, the orders which prohibit their publication are not enforced; but when they are reported mala fide the publishers of newspapers are liable to punishment.”
Several instances are given in May’s Parliamentary Practice at pp. 118-19 where proceedings have been taken for breach of privilege including a case of the publication in 1801 of a proceeding which the House of Lords had ordered to be expunged from the journal. It is said that that was a case of privilege of the House of Lords and not a case of privilege of the House of Commons and it is pointed out that there has been no instance of such a claim of privilege having been made by the House of Commons for over a century.
In the first place, it should be remembered that this privilege, as stated in Halsbury’s Laws of England, 2nd Edn., Vol. 24, p. 351, is a common privilege claimed by both Houses and, if the House of Lords could assert and exercise it in 1801, there is no reason to suppose that the House of Commons will not be able to do so if any occasion arises for its assertion or exercise. If the House of Commons has not done so for a long time it must rather be assumed that no occasion had arisen for the assertion and exercise of this power than that it had ceased to have the power at all.
It is interesting also to note the new point that arose in the House of Commons regarding the publication of certain proceedings in August 1947. A Committee of Privileges found that one Mr. Evelyn Walkden, member for Doncaster, had revealed the proceedings of a private party meeting to a newspaper. The Committee thought that the practice of holding party meetings of a confidential character had become well- established and must be taken as a normal and everyday incident of parliamentary procedure. The Committee felt that attendance at such meetings within the precincts of the Palace of Westminster during the session was part of the member’s normal duties and the publication by the handing out of a report of the proceedings amounted to a breach of the privilege of the House.
It is true that the House only resolved that Mr. Walkden was guilty of dishonourable conduct, but did not expel him but it also passed a resolution that in future any person offering payment for the disclosure of such information would incur the House’s grave displeasure. In this case the inquiry was with regard to the conduct of a member for having committed a breach of the privilege of the House by publishing the proceedings to an outsider.
The point, however, to note is that whatever doubts there might have been as to whether the proceedings of the private party meetings could be equated with the regular proceedings of the House of Commons, there was, nevertheless, no question or doubt about the existence of the power or privilege of the House to forbid publication of the proceedings of the House. This case also shows that the House of Commons had not only not abandoned its power or privilege of prohibiting the publication of its proceedings proper but also considered the question of applying this power or privilege to the publication by a member of the proceedings that took place in a private party meeting held within the precincts of the House.
Pundit M.S.M Sharma v. Shri srikrishna Sinha (1958)
 Sir Thomas Erskine May’s Parliamentary Practice, 16th Edn., Ch. III, P. 42
 Halsbury’s Laws of England, 2nd Edn., Vol. 24, Art. 698, P. 346
 Redlich and Ilbert on Procedure of the House of Commons, Vol. 1, P. 46
 Ridge’s Constitutional Law, 8th Edn., p. 61; also Halsbury’s Laws of England, 2nd Edn., Vol. 24, P. 351
 Anson’s Law and Custom of the Constitution, Vol. 1, Ch. 4,p. 162.
 Halsbury’s Laws of England, 2nd Edn., Vol. 24, p. 346
 Taswell-Langmead’s Constitutional History, 10th Edn., p. 657
 20 journals of the House of Commons, p. 99; quoted in Frank Thayer’s Legal Control of the Press, pp. 28-29
 (1868) L.R. IV Q.B. 73
 Ridge’s Constitutional Law, 8th Edn., P. 70 and May’s Parliamentary Practice, 16th Edn., P. 52.