inhibiting-free-speech

Context: Concerns about information technology and law relating to social media intermediaries fall within the domain of Parliament and the Central government. Any State Assembly has no jurisdiction over such issues, the Centre told the Supreme Court.

  • The Delhi Assembly had summoned a Facebook official to depose before its Peace and Harmony Committee. 
  • The official has questioned the role and jurisdiction of the Delhi Legislative Assembly’s Peace and Harmony Committee to compel him to testify before it in connection with the Delhi riots or face breach of privilege action.
  • The issue in the case was whether Facebook could be compelled to join an inquiry by a legislative assembly.

Central govt. Stand on issue

  • Union list: Concerns about information technology and law relating to social media intermediaries fall within the domain of Parliament and the Central government. Any State Assembly has no jurisdiction over such issues.
  • It also argued that the Information Technology Act already dealt with hate content on the Internet.
  • Cooperative federalism does not empower States to go into areas which are in Union List.

Issues involved:

  • The issue is related to federalism, the separation of powers and fundamental rights in India.
  • Court’s powers in matters of legislative proceedings: The legislative lists frequently overlap and courts resolve any conflict.
    • 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. 

Goal of legislatures:

  • Power of inquiry: Legislation is not the only goal of discussions. Legislatures also have a separate non-judicial power of inquiry which has been judicially regarded as being inherent to the legislature.
  • Walter Bagehot called it 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. 

Parliamentary privilege and judiciary

  • In our Constitution, both Parliament and State Assemblies were conferred with the same privileges. 
  • The judiciary does not have jurisdiction over parliamentary matters.
  • Freedom of speech should be in accordance with the constitutional provisions and subject to rules and procedures of the parliament, stated under Article 118 of the Constitution.
  • Under Article 121 of the Constitution, the members of the parliament are restricted from discussing the conduct of the judges of the Supreme Court and the High Court. 
  • The Supreme Court in Keshav Singh’s case observed that the privileges conferred on the members are subject to the fundamental rights. 
  • The Supreme Court has also held that any conflict arising between the privileges and the fundamental rights would be resolved by adopting harmonious construction.

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.
  • Atomic energy is the exclusive preserve of the Union. But a State Assembly can inquire into the possible ecological implications of a nuclear waste site within the State.
  • At least four states have passed resolutions against the Citizenship (Amendment) Act as affecting their people.

It is a landmark of liberty as it allows elected representatives to challenge the most powerful people of the land on behalf of commoners. Free speech is the hallmark of our legislative tradition.

What is parliamentary privilege? 

  • Parliamentary privilege refers to rights and immunities enjoyed by Parliament as an institution and MPs in their individual capacity, without which they cannot discharge their functions as entrusted upon them by the Constitution. 
  • Article 105 of the Constitution expressly mentions two privileges, that is, freedom of speech in Parliament and right of publication of its proceedings.

Breach of privilege

  • When any of these rights and immunities are disregarded, the offence is called a breach of privilege and is punishable under law of Parliament. 
  • A notice is moved in the form of a motion by any member of either House against those being held guilty of breach of privilege. 
  • Each House also claims the right to punish as contempt actions which, while not breach of any specific privilege, are offences against its authority and dignity.

Rules governing privilege

  • Rule No 222 in Chapter 20 of the Lok Sabha Rule Book and correspondingly Rule 187 in Chapter 16 of the Rajya Sabha rulebook governs privilege. 
  • It says that a member may, with the consent of the Speaker or the Chairperson, raise a question involving a breach of privilege either of a member or of the House or of a committee thereof.
  • The rules however mandate that any notice should be relating to an incident of recent occurrence and should need the intervention of the House. 

Role of the Speaker/Rajya Sabha Chair

  • The Speaker/RS chairperson is the first level of scrutiny of a privilege motion. 
  • The Speaker/Chair can decide on the privilege motion himself or herself or refer it to the privileges committee of Parliament. 
  • If the Speaker/Chair gives consent under Rule 222, the member concerned is given an opportunity to make a short statement.
  • A large number of notices are rejected, with penal action recommended in only a few.

Privileges committee

  • In the Lok Sabha, the Speaker nominates a committee of privileges consisting of 15 members as per respective party strengths. 
  • A report is then presented to the House for its consideration.