Freedom of Speech of MPs: Constitutional Privilege and Limits Under Article 105

During the recent Budget Session, expunction of portions of Opposition speeches triggered concerns about curbing parliamentary free speech, reviving debate on whether House rules are undermining protections under Article 105.

Constitutional Foundation: Parliamentary Privilege

• Article 105: This article grants MPs special constitutional rights known as parliamentary privileges, allowing them to speak freely in the House without fear of legal consequences.
• Purpose: These rights are intended to ensure that the legislature can function effectively and that democracy is strengthened through the uninhibited expression of views.
• Not Absolute: These rights are subject to certain reasonable restrictions outlined in the House rules and the Constitution itself.
  • Example: Article 121 prohibits discussing the conduct of Supreme Court or High Court judges unless a motion to remove them is under consideration.

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Expunging of Remarks and Rule 380

• Expunging: It refers to the removal of specific words or portions of speech from official parliamentary records. 
  • Once expunged, they do not appear in the official proceedings.
• Rule 380 (Lok Sabha Rules of Procedure): This empowers the Speaker to expunge words that are indecent, defamatory, or otherwise unparliamentary.

Concerns Regarding Misuse

• Weaponisation of Rule 380: Critics argue that the rule, intended to remove specific objectionable expressions, is being used to delete substantive criticism from opposition speeches.
• Tension with Article 105: Systematic suppression of opposition speech through procedural rules raises concerns about dilution of constitutional privilege.
• Judicial Principle: The Supreme Court has held that procedural restrictions cannot eclipse the substantive constitutional right.
  • Rules regulate conduct but cannot override fundamental privileges.
• Substantive Motions: Example:  The recent use of a substantive motion seeking lifetime disqualification of a sitting member, despite Parliament lacking such constitutional authority,  reflects the misuse of procedural tools for political ends.
  • A Substantive Motion is a formal, self-contained proposal that directly addresses a specific matter, not incidental to any other business.

Historical Perspective vs. Present Trends

• Earlier Practice: Parliamentary traditions emphasised respect for opposition voices, recognising criticism as essential to democratic accountability.
• Crisis of Mutual Forbearance: There is a noted lack of mutual forbearance—the ability of the majority and minority to respect and tolerate one another.
  • A healthy parliamentary democracy requires that the majority governs while the minority critiques. Erosion of this balance threatens deliberative democracy.

Way Forward

• Neutrality of the Speaker: The Speaker must act impartially to maintain institutional credibility.
• Primacy of Article 105: Constitutional privilege must prevail over procedural rules.
• Restrained Use of Rule 380: Expunction should be limited strictly to clearly unparliamentary expressions, not substantive criticism.
• Restoring Democratic Norms: Government and opposition must rebuild mutual respect to preserve parliamentary democracy.

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Conclusion

Article 105 embodies the constitutional guarantee of free speech in Parliament, which is essential to accountability and deliberative democracy. Hence, procedural rules must regulate conduct without overriding this privilege, ensuring that dissent remains protected within parliamentary functioning.

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