Democracy cannot thrive by destroying one of its basic planks. Yet the idea of parliamentary privilege, the bone of contention between The Hindu, a newspaper that is 125 years old and a name that is almost synonymous with the media in Chennai, and the Tamil Nadu assembly does precisely that. The attack on The Hindu by the Tamil Nadu Bidhan Sabha is an occasion that justifies outrage and the fear that freedom of speech is under a shadow in Tamil Nadu. The allegation that the attack was orchestrated by the chief minister, Ms J. Jayalalithaa, is credible because she is known for her intolerance and vindictiveness. The Supreme Court has stopped the harassment of The Hindu and its staff. But this cannot take away from the gravity of the issues that the incident has brought to the glare of public attention and debate. The editorial of The Hindu, which has been cited as a breach of parliamentary privilege by the Tamil Nadu assembly’s privileges committee, can be read from a narrow legal point of view and thus used to justify the strictures of the committee. But the issues involved are more profound precisely because freedom of speech is involved, as is the very idea of parliamentary privilege. The existence of a privilege can by no means be interpreted as a justification for its existence. The precipitate action of the privileges committee, the punishment recommended and the actions that followed make it imperative that the idea of privilege is reexamined by a body of jurists and political philosophers.
The notion of parliamentary privilege, a direct import from the house of commons in Britain, is something of an anomaly in the Indian political system. In India, unlike in Britain, where the parliament is sovereign, the Constitution is sovereign. This places the idea of parliamentary privilege on a somewhat shaky ground. It guarantees to legislatures and their members certain rights which are not available to the rest of the adult population. Yet the Constitution has made all the citizens equal. In Britain, in the specific political context of the 17th century when the house of commons was establishing its rights against an arbitrary monarch, its members protected themselves by asserting certain privileges. They also wanted to establish the sovereignty of the house of commons. In India, this context does not exist, has never existed. Democracy was born in India without any threat from monarchy or any other institution. Here, the invocation of parliamentary privilege can only stop the free flow of information, which is a vital element in a democracy.
In India, the danger to democracy comes not from royalty but from political leaders who assume regal status for themselves. Such leaders abuse democratic institutions and conventions to their own advantage. Ms Jayalalithaa’s use of parliamentary privilege is a supreme example of this kind of arbitrariness. It is time the principle of parliamentary privilege was recognized as an anachronism. Discarding it will stop its abuse.