The only silver lining was the dissenting judgment of Justice

Both India and Pakistan inherited the law of Parliamentary privileges from Britain and incorporated this law without much changes in their respective constitutions. Pakistan has 104 senators while India has 543 MPs in its Lok Sabha or house of the people. In Pakistan, perks and privileges are given to even former MPs who use a blue passport for travel, VIP lounge and official rest houses as well as get medical treatment for themselves and members of their families free of cost in government hospitals.

Both in India and Pakistan, privileges for the elite elected representatives are bound to be misused and this has become evident with the Indian Supreme Court staying a breach of privilege motion taken out by a Shiv Sena MLA in Maharashtra against Indian columnist and author Shobhaa De for tweeting that it was dictatorial for the Maharashtra chief minister Devendra Fadnavis to order screening of Marathi language films during prime time from 6 p.m. to 9 p.m. in Mumbai city’s multi-plexes

This resulted in the right-wing Shiv Sena staging a demonstration before the home of De and offering vada pav and dahi missal (two Maharastrian delicacies) to her for her sarcastic tweet that now cine goers would only get vada pav and dahi missal while watching Marathi films and not get popcorn.

De had earlier criticized the Fadnavis government’s law banning slaughter of cows which resulted in a steep rise in the prices of mutton and chicken making it unaffordable for the common meat-eater in Maharashtra. The law is being challenged in the Bombay high court which has not yet stayed the law.

India and Pakistan rank 140 and 158  respectively out of 180 countries in the 2014 Reporters Without Borders global press freedom index. In Pakistan, Nadeem Haider, a reporter for the Urdu-language Daily Dunya, was gunned down in the Kaliki Mandi area of Hafizabad on 3 October 2014 by two men.

Meanwhile, the Indian Supreme Court has also issued notices to Prakash Sarnaik of the Shiv Sena and principal secretary of the Maharashtra legislative assembly. De’s so-called crime was her tweet criticizing chief minister Devendra Fandavis’ order to all multiplexes in Mumbai to screen only Marathi films during prime time, resulting in Sarnaik taking out the breach of privilege motion. The Shiv Sena has only partnered the ruling BJP in Maharashtra but does not enjoy an absolute majority.

De has defended herself by saying she is a proud Maharashtrian and will always be one. She has vociferously defended her right to free speech and the right to criticize.

But it is unclear which exact privilege De had violated by her tweet as Parliamentary and legislative privileges have neither been defined nor spelt out in India.  Hence this is the right time for free speech activists to intervene in the Indian Supreme Court to rectify a gross miscarriage of justice which took place in 1959 in what is known as the Searchlight case.

But what is breach of privilege ? In  a nutshell, it means insulting the legislature or violating its privileges which the masses are blissfully ignorant of as they are uncodified. The concept has been derived from the British without any thinking going into it.

This is because when India and Pakistan borrowed the British laws and jurisprudence, the Indian Parliament also stated that “for the time being” the privileges would continue to be that of Britain’s House of Commons. After over 50 years, these privileges have forever remained undefined with our MPs and MLAs stoutly refusing to spell them out.

MPs and MLAs are totally immune from any legal action for whatever they say or do during debates or discussions in state legislatures or the Indian Parliament under Article 194 (3)  of the Constitution. This is called absolute privilege. Hence,  a breach of privilege would also mean the violation of a privilege of an MP or MLA which is neither written nor spelt out. This is an absurdity because one cannot be convicted for a law which does not exist on the statute books. First, codify the privileges then punish those who violate them. But today, it is the opposite.

Ipso facto, any Indian citizen can be summoned for unwittingly violating a privilege of which he knew nothing about and never intended to violate.  He can be refused right to legal representation, heard and jailed all in one go. This is because the prosecutor and judge are one and the same, unlike in criminal courts. This is another example of blatant violation of natural justice.

Each Indian legislature has a privileges committee which comprises MPs or MLAs drawn from different political parties. Whether the statement or action of an individual or group constitutes prima facie breach of privilege or not is left to the discretion of this committee. The file is then put before the speaker of the house and left to the house for further punitive action.

As always, absolute power can be abused. A member can use privilege to defame anybody without  basis. Occasionally, a member of either a state legislature or Parliament may traverse beyond the restrictions imposed by Article 19 (2) such as decency and morality, friendly relations with foreign states, security of the state, public order, sovereignty and integrity of India, defamation, contempt of court or incitement to an offence.

But the Indian people have no right to question their elected representatives who often act at their party’s call, without thinking for themselves at all. Outside the legislature too, MLAs make outrageous statements and get away with it such as Muslims should be disenfranchised or that Muslims and Christians should be forcibly sterilized although the privilege does not extend to MLAs outside the house. One Hindu Mahasabha spokesperson has allegedly said that those who attack churches should be protected because “churches were merely conversion factories.”  A Mumbai citizen has reportedly lodged a criminal complaint against Shiv Sena MP Sanjay Raut for writing in the Sena mouthpiece Saamna that Muslims should be disenfranchised. Maharashtra which was in the vanguard of the freedom movement against the British and which enjoyed unrestricted right to free speech in the late 1940s and 1950s, has now degenerated with the rise of right-wing Hindu political parties which suppress the right of minorities to eat what they wish and watch the films of their choice.

In 1958, the Indian Supreme Court laid down the law after the Searchlight published on 31^st May 1957, expunged material of the Bihar legislative assembly. Shorn of clever semantics, the apex court laid down that free speech of the Indian people was subordinated to the privileges of our elected MLAs and MPs “because Article 194 (3) was not subject to Article 19 (1) (a)”. This interpretation is questionable because Article 19 (1) (a) is a fundamental right whereas Article 194 (3) does not form part of the fundamental rights contained in Part III of the Constitution.  Hence, a non-existent law overrode the fundamental rights of all Indian citizens.

The only silver lining was the dissenting judgment of Justice Subba Rao who refused to accept that the privileges of MPs and MLAs overrode the right to free speech of the Indian people. His scholarly dissenting judgment should have been the law of the land. Unfortunately, that is not the case in a democracy and so the fact that the privileges, though undefined, extinguish the right to free speech of the common citizen, is the prevailing law today.

And so today, we are in a situation where those not having the law, are a law unto themselves with activists like Shobhaa De at the receiving end.