MPs and MLAs have special rights to free speech for a valid reason

Source: The post is based on the article “MPs and MLAs have special rights to free speech for a valid reason” published in Live Mint on 5^th December 2022.

Syllabus: GS 2 – Governance

Relevance: Concerns associated with parliamentary privileges of MPs.

News: The Supreme Court is reconsidering the privileges granted to the legislators in the Parliament or in Assemblies. The freedom of speech of MPs and MLAs are protected by the Constitution.

What are the Constitutional provisions regarding free speech for MPs and MLAs?

The Constitution provides all Indian citizens with freedom of speech under Article 19 which is subjected to reasonable restrictions.

However, the freedom of speech granted to MPs and MLAs in the Parliament or in Assemblies is protected under Articles 105 and 194 respectively, as a parliamentary privilege.

This freedom is only subjected to the provisions of the Constitution and standing orders of concerned legislative body.

MPs cannot be punished in connection with any vote or speech made in Parliament. Courts are also barred from making inquiries into proceedings in Parliament.

Therefore, the free speech of parliamentarians has been protected more than free speech available to citizens.

Why is this freedom important for MPs and MLAs?

The free speech of legislators protects the integrity of discussions in Parliament and acts as a shield against the suppression by the executive.

Further, Freedom of expression is regarded as the foundation of a liberal democracy and imposing unfair restrictions on legislators will hamper this foundation.

Therefore, it is important to ensure such freedoms to the legislators as regulating it can impact the ability of Parliament to check the Executive.

What are the concerns associated with this freedom?

At present there are 2 types of challenges to this freedom, in front of Supreme Court (SC):

First, the SC is considering whether there can be additional restrictions on speeches by MPs as there has been rise in the hate speech.

Second, the problem of bribery of legislators because of the provisions of Article 105(2). The SC in the Jharkhand Mukti Morcha (JMM) bribery case held that bribes given for votes is not punishable under the Prevention of Corruption Act as they were the votes taken in Parliament. This view is being reconsidered.

Article 105(2) provides protection to the legislators against the proceedings of the court related to vote, speech or any publication made under the authority of the Parliament.

However, both of these concerns do not dilute the parliamentary privileges and both can be addressed separately.

What are the provisions present for the hate speech by legislators?

First Issue

The hate speeches made by MPs and MLAs that causes offence are punishable under Indian law if made outside the legislative house.

Further, if their speech is printed in newspapers that goes against the law then s/he can be punished.

Second Issue

As per the amended Prevention of Corruption Act, illegal satisfaction is complete at the time a bribe is made and it is punishable without any further follow up.

However, this act has no connection with any vote or speech made in the Parliament and it is protected under Article 105(2).

Therefore, the JJM bribery case can be reconsidered on the basis that illegal satisfaction is not connected with any vote or speech in Parliament. The UK Supreme Court has taken the same view in the parliamentary expenses case in R. vs Chaytor.

What is the way ahead?

The responsibility to improve politics and bring an ecosystem that discourages irresponsible speech and corruption lies with the citizens more than with the laws.

Constitutional safeguards exist to ensure the structural integrity of political democracy. Therefore, using these laws to correct political problems is not the solution.