Guest Post: Legislative Privilege and Competence – Facebook (and the Union of India) vs the Delhi Assembly)

[This is a guest post by Rahul Narayan.]

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When the Delhi Assembly summoned Facebook honcho Ajit Mohan to depose before its Peace and Harmony Committee, it unwittingly provoked a litigation that may have far-reaching implications on Federalism, the Separation of Powers and Fundamental Rights in India.

Parliamentary privileges

Parliamentary Privileges are a set of rights and immunities that are essential for the functioning of Parliament. The right to free speech in the House, guaranteed to the Commons since 1688, and the right to call for evidence and witnesses, are central to the role of the legislature. In our Constitution, both Parliament and State Assemblies were conferred with the same privileges as the Commons. Apart from discussions about judges, no other speech is barred for legislators in the text of the Constitution. Unlike the devolved legislature of Scotland under Section 23 of the Scotland Act 1998, the power of discussion is not limited to fields where the state legislature is competent to legislate.

The case made by the Union of India is that legislative privilege is a function of legislative power. The Union relies upon several judgments of the Supreme Court to make this case- MSM Sharma, Keshav Singh, State of Karnataka v. Union of India, Kalpana Mehta and Raja Ram Pal. It is contended that since the Delhi Assembly specifically does not have power under items 1 and 2 of the State List, it has no privilege to call for witnesses or evidence apropos the same. The Union then goes on to argue that in “pith and substance” the inquiry by the Delhi Assembly relates to something beyond its powers under the Legislative Lists. It also argues that this is an “occupied field” by the Union and that accordingly the Delhi Assembly has no authority to call for witnesses in the present case.

The sequitur of the Union’s arguments is that the Delhi Assembly lacked the competence to call Ajit Mohan to depose before the Peace and Harmony Committee because they could not have passed a law on “peace and harmony” in Delhi- the powers to so legislate being with the Union Government. This logic also inexorably leads to the contention, though this has not been categorically stated, that State Assemblies do not have the competence even to discuss such issues since such discussions would be the sole preserve of Union Parliament.

On the face of it, as argued by the Union, Federalism imposes an insuperable challenge to the traditional broad reading of Parliamentary Privilege. The broader argument goes: Unlike the House of Commons, the powers of State Assemblies are more limited. If the State Assembly cannot pass a law on a subject, how can it claim a right to discuss it or call witnesses for it?

However, this framing is misleading. First, legislation is not the only goal of Assembly discussions. Legislatures also have a separate non-judicial power of inquiry which has been judicially regarded as being inherent to the Legislature, flowing perhaps from what Walter Bagehot would call the expressive and informative function of the House. Politically, the Assembly is the voice of the people of a State and their discussions are an expression of popular will. Atomic energy is the exclusive preserve of the Union. Does that mean a State Assembly cannot inquire into the possible ecological implications of a nuclear waste site within the State? Cannot State legislatures hear testimony from soldiers and pass resolutions to honour the armed forces? At least six States have passed resolutions against the Citizenship (Amendment) Act as affecting their people. Parliament may not be bound by discussions in State Legislatures but it is entirely reasonable to assume that discussions will have a persuasive value for them. 

Second, the Legislative Lists in Schedule VII frequently overlap and Courts resolve any conflict by adopting a test of pith and substance of the law in question. But how would this apply pre-emptively at the inquiry stage when the discussions may or may not lead to legislation? In fact it is also possible that the State Assembly may recognise that the discussions are not fruitful and end the same.

Third, we live in the era of co-operative federalism. How can the Union and the States cooperate if they are barred from even discussing or taking evidence on issues beyond their limited legislative competence? It must be remembered that the Constitution does not seem to envisage such strict limits. The union has the right to pass legislation on state subjects pursuant to international treaties or on the request of 2 or more states. States have been given the explicit right to discuss formation of new states or alteration of state boundaries even if they have no power to bind Parliament to their will.

Fourth, there is the delicate issue of whether the courts can or ought to sit in judgment on the proceedings of State Assemblies determining what can or cannot be discussed based on the courts’ view of the topic. As a “watchdog of the Constitution”, it is undoubtedly the role of the Court to uphold the federal separation of powers and fundamental rights, but this has never meant a wholesale intervention into legislative proceedings as would be needed to enforce any bars on discussions or witnesses in any legislative proceeding. In Keshav Singh’s case, the issue was the power of the State Assemblies to punish for contempt Judges who granted bail to a publisher who had allegedly been in contempt of the House. The issue was relatively clear cut and a bright line rule could be laid down- contempt of a House is an issue touching upon the fundamental rights of people and can, and must, be examined by the Courts. The fact situation presents a stark contrast with the present case. The Court here is faced with a claim that calling a witness is a fundamental right violation per se because the State Assembly lacks the legislative power to pass a law on the subject of inquiry. Calling witnesses to Assembly proceedings or Parliamentary proceedings is not a fundamental right violation per se, and arguments about the right against self-incrimination or right to silence don’t work as well merely at the stage of a summons for a non-judicial hearing. It would be startling if the Court were to hold that Parliament or State Assemblies have no right to call for witnesses to assist lawmaking, or inquiries based on the right to silence or the right against self incrimination. 

How is the court to interpret the discussions in a State Assembly to make a judgment about legislative power before a law that finally expresses the will of the house is passed? Consider that even recourse to Parliamentary discussions was verboten for the Courts for purposes of interpreting a law for the longest time. No theory of judicial review would justify such a deep dive into the “political thicket” to examine the proceedings of the House with a view to determining whether the discussion has a reasonable nexus with its legislative powers. Such an inquiry would also be in the teeth of the Constitution as judicial examination of proceedings in the house is something our Constitution expressly bars.

The judgments cited by the Union to support the argument that legislative power limits legislative privilege do not actually appear to do so. It seems clear that in the State of Karnataka judgment, what was argued was that the “powers” of the State Assemblies under 194(3) were argued to be inclusive of the sole right to judge for bribery of the CM and that the Grover Commission could not have looked at the same. The Court rejected this argument holding that the State Assemblies had no right to conduct judicial or quasi-judicial inquiries under our Constitution or even in England. It is clear that the Court did not address the issue of legislative inquiries independent of quasi-judicial ones because it was careful enough to observe that the powers were “quite apart from its recognised powers of punishment for its contempt or the power of investigations it may carry out by the appointment of its own committees.”  

The experiences of Canada and Australia, both Common Law Federal jurisdictions, are also instructive. The Canadian chronicler Maingot hints about restrictions based on legislative competence but is careful to add that they are self-imposed, not court mandated. In Australia, the Privy Council in appeal from the High Court held that “it is hardly possible for a Court to pronounce in advance as to what may and what may not turn out to be relevant to other subjects of inquiry on which the Commonwealth Parliament is undoubtedly entitled to make laws”.

In 1397, Sir Thomas Haxey presented a petition criticising the household costs of King Richard II in Parliament and was punished for treason with his property seized. In 1399, the new King Henry IV reversed this judgment as being against the traditions of Parliament, recognising a privilege that was eventually crystallised in the Bill of Rights in 1688 from whence it travelled to the US, Canada, Australia, New Zealand and to India. The privilege is a landmark of liberty as it allows elected representatives to challenge the most powerful people of the land on behalf of commoners. This ancient tradition would be effaced if the court were to appoint itself an arbiter of legislative discussions. It is difficult to craft any discernible principle upon which such unprecedented power could be judiciously exercised without inhibiting free speech that is the hallmark of our legislative tradition.