[Editorial Analysis] Inhibiting free speech

Mains Paper 2: Polity
Prelims level: Parliamentary immunity powers and privileges act 1988
Mains level: Parliament and State legislatures—structure, functioning, conduct of business, powers and privileges and issues arising out of these.

Context:

• The Delhi Assembly summoned Facebook to depose before its Peace and Harmony Committee, who examining the Delhi riots that took place in February last year.

• It started argument, may have far-reaching implications on federalism, the separation of powers and fundamental rights in India.

The 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 1689, and the right to call for evidence and witnesses, are central to the role of the legislature.

• In 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.

Implications on federalism:

• Federalism imposes an insuperable challenge to the traditional broad reading of parliamentary privilege.

• 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 that.

• The Legislatures have a separate non-judicial power of inquiry which has been judicially regarded as being inherent to the legislature, expert call the expressive and informative function of the House.

• The Assembly is the voice of the people of a State and their discussions are an expression of popular will.

The separation of powers:

• The legislative lists frequently overlap and courts resolve any conflict by adopting a test of pith and substance of the law in question.

• Like 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?

• But how would this apply pre-emptively at the inquiry stage when the discussions may or may not lead to legislation.

• 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?
• 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.

• No theory of judicial review would justify such a deep dive into the “political thicket” to examine the proceedings of the House, something our Constitution expressly bars.

The experiences of Canada and Australia:

• Canada and Australia both have 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”.

Recognize free speech:

• In 1399, the Commons recognized free speech in the House as a tradition by reversing the judgment of treason on Sir Thomas Haxey.

• It is this ancient privilege that found its way into our Constitution. It 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.

Conclusion:

• The Delhi Assembly summoned Facebook is based on, the peculiar character assigned to the Delhi Assembly which has been denuded under the Constitution from legislating on three subjects – land, law and order and police.

• The constitution of India (8th schedule, Entry 39) in State List by which Assemblies can enforce attendance of witnesses for purpose of recording statements.

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Prelims Questions:

Q.1) With reference to the Square Kilometre Array Observatory (SKAO) project, consider the following statements:

1. It is a single telescope project.

2. India is not a participant in this project.

Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Answer: D

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