Protecting the freedom of speech of MPs

Recent happenings in Parliament have brought into sharp focus the issue of freedom of speech in the Houses, guaranteed by Article 105 of the Constitution. Of course, this is subject to other provisions of the Constitution and the rules of the Houses. That the freedom of speech of MPs is subject to the rules of the Houses seems to have created the wrong impression that the provisions of the rules can in a way override constitutional rights. The root of the problem which the leaders of the Opposition face in Parliament lies in this erroneous impression. The Supreme Court has clarified on many occasions that the restrictions on the rights of citizens should not be such that they eclipse those very rights. This principle would apply to the freedom of speech of MPs in the Houses as well. The rules of the Houses are meant to regulate the conduct of the proceedings in accordance with the Constitution.

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Expunging words

The question which has arisen in the first part of the Budget Session of Parliament is whether there were too many restrictions imposed on the freedom of speech of the members of the Houses, in particular, the leaders of the Opposition. The Leader of the Opposition in the Rajya Sabha, Mallikarjun Kharge, reportedly wrote to the Chairman about the expunction of many portions of his speech and requested him to restore what was cut. His complaint is that after these cuts, his speeches made little sense.

An MP has the right to speak freely in the House and to have their remarks entered into the official records of the House. If the speech is not recorded, is partially recorded, or if many portions are arbitrarily deleted, the MP’s right under Article 105 is infringed. Of course, Rule 380 permits the Speaker to expunge words if they are unparliamentary, defamatory, indecent, or undignified. But it permits the Speaker to expunge only the offending word and not sentences or paragraphs from the speech. Naturally, in a civilised debate in the Legislature, there should be no place for offending words which destroy the sanctity of debates and lower the dignity of the House. That is why rules confer the right on the presiding officers of the Houses to remove them from the records. But while exercising this right, the officers are duty-bound to ensure that the freedom of speech of MPs in the Houses is not diminished.

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The Constitution adopted freedom of speech as the main privilege of MPs. As Erskine May, an authority on parliamentary system, says, these are special rights which are indispensable for members, for the smooth functioning of the legislature. Only the free, frank, and fearless expression of members’ views enables the Legislature to perform its role effectively. If the rule on expunction is applied mindlessly to speeches made in the House, it will stifle the freedom of speech.

What are the constitutional provisions and the rules of the House to which the freedom of speech in the House is subject? Article 121 says no discussion can be held in Parliament on the conduct of a judge of the Supreme Court or of a High Court except when the House considers a motion for the removal of that judge. As regards the rules of the House, they impose certain restrictions on the freedom of speech, such as sub judice matters, personal allegations, questioning the bona fides of fellow members, reflecting on the conduct of persons in high authority, and defamatory or incriminatory allegations against any person without giving prior notice to the Speaker. These rules in no way stifle the freedom to speak in the House. The problem arises when these rules are sought to be weaponised. A mindless application of the expunction rule will make a speech incoherent. It must be kept in mind that speeches made in Parliament are preserved for posterity.

Parliamentary conduct and practices have a firm normative base. After independence, when India was transitioning to the post-colonial system, Prime Minister Jawaharlal Nehru reset the relationship between the government and Parliament and the government and the Opposition in Parliament. He would do two things in this context. First, he would be present during the question hour every day and supplement or even correct the answers given by ministers because he believed that Parliament should be given the correct and full information. Second, he would come to the House to listen to the speeches of the Opposition leaders because he believed that he would get to know the reality only from their speeches and not from the adulatory paeans from his own party members. There cannot be a democratic Parliament without an Opposition. As the constitutional lawyer Ivor Jennings said, “Attacks upon the government and upon individual ministers are the function of the Opposition. The duty of the Opposition is to oppose.”

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A tragic development

The Parliament of the day seems to be losing this perspective. Ours is perhaps the only Parliament in the democratic world where a leader of the Opposition is effectively prevented from speaking in the House and against whom a motion is brought to have him disqualified for life. It is tragic that such an attempt is being made by a senior member of the House when it should be clear that Parliament has no power to disqualify a member. But this move is a pointer to the irretrievable breakdown of the relationship between the government and the Opposition. Jennings’ words are prophetic: “The minority agrees that the majority must govern and the majority agrees that the minority should criticise. The process of parliamentary government would breakdown if there were no mutual forbearance.”