MPs and MLAs have special rights to free speech for a valid reason

It is a depressing sign of our times that Members of Parliament (MPs) and other legislators are generally not held in great public esteem.

However, public disdain and cynicism about our elected representatives must not colour our understanding of the Constitutionally protected rights and privileges of legislators, in particular their free-speech rights. These rights and privileges are an essential bulwark of liberty and democracy.

Under our Constitution, all Indian citizens enjoy free speech subject to reasonable restrictions under Article 19, but the speech of MPs and Members of Legislative Assemblies in Parliament and other legislative bodies is particularly protected under Articles 105 and 194 as a parliamentary privilege, subject only to provisions of the Constitution and standing orders of such a legislative body. MPs cannot be punished “in connection with” any vote or speech made in Parliament. Courts are also specifically barred from making inquiries into proceedings in Parliament. These additional greater protections for legislators are neither accidental nor a carve-out for special interests, but a recognition of how important free speech of legislators has been, historically, and continues to be in our parliamentary democracy.

The free speech of parliamentarians has been protected for far longer than free speech generally. Indeed, the history of this protection under Common Law is a history of how power has been brought to account in a democratic set-up. In 1397, Lord Haxey in a parliamentary petition questioned the household expenses of British King Richard II and was punished for treason. Within two years, the despotic king was deposed by King Henry IV, and this precedent was reversed as being against the law of Parliament. In 1512, the Privilege of Parliament Act was passed, protecting speeches made in Parliament from criminal prosecution. This law is still extant in the UK and also in Ireland.

The punishment of Elliot, Hollis and Valentine by the Kings Bench in 1629 was the last serious effort by a British king to control speech in Parliament. After the Civil War, the execution of King Charles I and the restoration of his son, the said judgement was reversed and both Houses of Parliament passed resolutions that it was illegal. In the Bill of Rights adopted in 1689, free speech in Parliament was specifically protected and this protection continues to date in Britain and in every country of the commonwealth that has a parliament. It was this history that our Constitution framers had in mind when they recognized such free speech in India as a privilege under it.

The lesson of history is clear: free speech of legislators protects the integrity of deliberations in Parliament, and is a shield against executive suppression of inconvenient voices. The policing of legislative speeches will severely impact the ability of Parliament to check the Executive and will thus be a detriment to accountability. Freedom of expression is generally regarded as the foundation of a liberal democracy. Unfairly restraining legislators from making political speeches will strike a serious blow to this structure.

There are two serious concerns regarding this privilege, both of which are currently before the Supreme Court. First, the court is considering whether there can be additional restrictions on MPs’ speeches, considering the rise of hate speech in particular. The second is the problem of bribery of legislators because of the particular phraseology of Article 105(2). In the Jharkhand Mukti Morcha (JMM) bribery case, the Supreme Court majority reluctantly held that bribes for votes could not be punished under the Prevention of Corruption Act as they were in connection with votes taken in Parliament. This view is being reconsidered.

Neither of the two serious concerns justify a dilution of Parliamentary Privilege, however, as both can be addressed based on existing law.

As it happens, MPs and MLAs frequently make speeches that make their constituents wince. If such speeches are found tantamount to incitement of any offence, whether it’s hate speech or treason, they are already punishable under Indian law if made outside the legislative house. In fact, if the MP or MLA has a speech printed in newspapers, she is open to the full sanction of the law, a position that has been undisputed since Lord Abingdon’s case in 1794. To the extent that these speeches do not violate any law, there can be no justification for stifling the same. If we are embarrassed by our legislators, we have the power to replace them at the hustings, or seek their disciplining by political parties, or having them subject to standing orders in the House. Criminalizing political speech has an inconvenient habit of turning into criminalization of alternative viewpoints, which is unhealthy for democracy.

As regards corruption, under the amended Prevention of Corruption Act, illegal gratification is complete at the time a bribe is made; no follow up act pursuant to the gratification is required.

As such, prosecution for such gratification does not require any inquiry into parliamentary proceedings—there is no connection with any vote or speech protected by Article 105(2). Incidentally, the UK Supreme Court has taken the same view in the parliamentary expenses case, R. vs Chaytor. The JMM bribery case can be reconsidered on the basis that illegal gratification is not connected with any vote or speech in Parliament.

It is a truth universally acknowledged that we need better politics and any ecosystem that encourages irresponsible speech or turns a blind eye to corruption must be uprooted entirely. However, it is not the task of Constitutional law to clean these Augean stables. The responsibility for this lies primarily upon us citizens and our political choices. Searching for constitutional answers to political maladies is fraught with danger. Constitutional guard-rails exist to ensure the structural integrity of political democracy. Forgoing the same in the name of reform risks throwing out the baby with the bath water.