Azam Khan’s apology & parliamentary privilege

Sudhanshu Ranjan
Columnist and author

Samajwadi Party MP Azam Khan has apologised for his sexist remark in the Lok Sabha against presiding officer Rama Devi but she has refused to forgive him, demanding stringent action. 

The sordid incident raises issues of limits of freedom of expression of legislators inside the House as well as the freedom of expression of the media in reporting the proceedings of the House. The comment was so bizarre and bawdy that initially it disconcerted Rama Devi who did not know how to react. The House was stunned and then there were protests from the Treasury Bench. After the uproar, Khan dissembled and then arrogantly walked off.

Legislators enjoy myriad privileges, with freedom of speech and freedom from arrest being on the top. These are well-recognised privileges of the British House of Commons which have evolved out of some disturbing incidents. In 1376, Speaker Peter de la Mare was incarcerated for his conduct in Parliament and could not be set at large during the lifetime of King Edward III. His successor, Richard II, released him, but he was not generous either. In 1397, a Bill, introduced in the Commons and accepted by them, lambasted him and his courtiers. This infuriated the King who demanded the name of the person who placed it. He was informed that it was Thomas Haxey. The Lords ruled that Haxey had committed treason as he had roused the Commons to make such demands and condemned him to death. However, he escaped the gallows as the Archbishop claimed him as his clerk.

In 1512, Richard Strode was arrested by the order of the Stannary Court because he had introduced certain Bills in Parliament which were disapproved of by the King. He was released after three weeks and an Act was passed to bequeath immunity to members that “all suits, accusements… punishments, etc. against all persons…of any Parliament…for speaking, reasoning or declaring of any matter or matters concerning that Parliament should be utterly void and of no effect.” 

In 1629, three MPs — Eliot, Hollis and Valentine — were convicted for delivering seditious speeches in Parliament. But the House of Lords annulled it during the reign of Charles II. It categorically ruled that the words spoken in Parliament can be judged in Parliament alone. The Bill of Rights, 1689 further fortified it by providing that “the freedom of speech or debates in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

Article 105 of the Constitution of India specifies two privileges in Clauses (1) and (2), viz freedom of speech and freedom of publication of proceedings, and Clause (3) mentions other privileges, which in the original form on January 26, 1950, read that these “shall be such as may from time to time be defined by Parliament by law, and until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom.” The reference to the House of Commons was deleted in 1978. So, the amended Article reads that these privileges “until so defined (by Parliament by law) shall be those of that House… immediately before the coming into force of Section 15 of the Constitution (Forty-Fourth Amendment) Act, 1978 (wef January 20, 1978).” Similarly, state legislatures enjoy the same privileges as provided by Article 194 which is a spitting image of Article 105.

Thus, it is amply clear that MPs and MLAs enjoy unbounded freedom of expression inside the House. However, the anti-defection Act has eviscerated this freedom as they can vote according to the party whip only, otherwise they enjoy full freedom. But even in case of the defiance of whip, they are liable to lose the membership of the House, not face any other action. They cannot be punished by any court for their speeches in the House. However, the House can definitely punish the deviant member for uttering or doing something which is unparliamentary and criminal. 

Azam Khan made a lewd remark which amounts to sexual harassment, and he could be booked under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and Section 354A of the IPC which makes outraging the modesty of a woman a criminal offence, if he had made it outside the House. Section 354A does not explain what constitutes ‘outraging modesty’ but the Supreme Court has defined ‘modesty’ as feminine decency and a virtue that women possess owing to their sex. Khan is guilty of a breach of privilege. 

Former Prime Minister Indira Gandhi was sent to jail and expelled from the Lok Sabha on this ground. In December 1978, the Privileges Committee of Parliament found her guilty of obstructing four officials who were investigating Maruti Limited. On December 19, 1978, the Sixth Lok Sabha passed a resolution that Indira Gandhi be committed to jail until the prorogation of the House and be expelled from its membership for seriously obstructing, intimidating, harassing and instituting false cases against some officials who were collecting information to file a reply to a question in the earlier Lok Sabha. After one week, she was set free, on December 20. However, Indira Gandhi returned to power in 1980 and the Seventh Lok Sabha nullified the motion of her expulsion through a resolution passed on May 7, 1981. It also expunged the proceedings of her expulsion. Thus, there is no record of her expulsion from the Lok Sabha, though it was widely reported and is known to everyone.

It raises the issue of expunction — why should any remarks be expunged? People know that Indira Gandhi was expelled and all biographies of her mention it. But it is not in the record of the Parliament. What purpose does it serve? If Khan made a sexist remark, people should know how their elected representative behaves. Since the proceedings of Parliament are telecast live, people watched it. But the media cannot report it. Thus, the parliamentary privilege overrides the fundamental right of freedom of speech and expression.

In the Searchlight Contempt case (MSM Sharma v. Sri Krishna Sinha, AIR 1959 SC 395), the Supreme Court held that the fundamental right of freedom of expression cannot supersede parliamentary privileges. The Searchlight, a Patna daily, had published expunged portions of the proceedings of the legislative Assembly. Chief Justice SR Das held that since privileges are not codified, they override fundamental rights; if these are codified by ‘law’, that law would be tested on the touchstone of fundamental rights. Many jurists feel that this position needs to be altered as fundamental rights are supreme which parliamentary privileges cannot overtake.

Khan should be punished, deletion alone won’t do.