Indiscriminately issuing notices to persons for contempt of the House and threatening proceedings for alleged breach of privilege betrays complete ignorance of the law declared on February 25, 2014, by a Bench of our Supreme Court, comprising Chief Justice Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh, which ruled that “the basic concept is that the privileges are those rights without which the House cannot perform its legislative functions”. The court observed that in order to constitute a breach of privilege, a libel upon a Member of Parliament or a Legislative Assembly must concern his character or conduct in his capacity as a member of the House and must be “based on matters arising in the actual transaction of business of the House”. Libel and reflections upon members otherwise than in their capacity as members do not involve any breach of privilege or contempt of the House. The crux of the matter is that privileges are available to MPs or MLAs so that they can perform their parliamentary or legislative duties without let or hindrance. Elaborating, the court pointed out that in cases where members were assaulted while they were not performing any parliamentary or legislative duty, no breach of privilege or contempt of the House can be said to have been committed.
This crucial issue is pending before the Supreme Court in a case where the UP state Assembly has issued
notices for breach of privilege to media persons who had carried out a sting operation relating to Muzaffarnagar riots.
Judicial Balance in Sentencing: A sense of proportion should guide the imposition of sentence on a convict avoiding severity as also undue leniency. Our Supreme Court had occasion to recently consider this issue. The Madhya Pradesh High Court had sentenced three convicts to the period already undergone by them in jail during trial. A Bench of the Supreme Court comprising Justice Dipak Misra and Shiva Kirti Singh set aside the high court order. Justice Misra speaking for the court ruled that “it is the duty of court, awarding sentence, to ensure justice to both the parties and, therefore, undue leniency in awarding sentence needs to be avoided because it does not have the necessary effect of being a deterrent for the accused and does not reassure society that the offender has been properly dealt with”. The Bench held that the high court order of punishment suffered from the vice of over-leniency even in absence of any mitigating circumstances. The principle enunciated by the Supreme Court is fair and should be strictly applied by courts in imposing punishment by avoiding the extremes of severity and over-leniency.
Perversion of Sedition: The law of sedition has been authoritatively interpreted by the Constitution Bench of our Supreme Court in its landmark judgment in the case of Kedar Nath vs State of Bihar. The Supreme Court has ruled that any speech or writing which criticises the government of the day, vigorously, pungently, even if ill-informed, does not constitute sedition unless it has a clear tendency to affect law and order and there is incitement to violence. Surprisingly, a magistrate recently slapped sedition charges against Union Finance Minister Arun Jaitley for his comments on the Supreme Court judgment in the National Judicial Appointments Commission.
The magistrate’s order displays abject ignorance of the law of sedition as interpreted by the Supreme Court. In a way, it belies the charge that section 124-A of IPC (Sedition) is misused by the government of the day against its opponents. Jaitley is surely not an opponent of the government. It is reported that the magistrate has been suspended and an inquiry has been ordered for further action. A judicial order of a magistrate, even if palpably erroneous, can be set aside in appeal or revision or other appropriate judicial proceedings. One wonders if suspension and further inquiry are justified. This would set a bad precedent of suspending judicial officers for passing erroneous orders, in a way tend to impair judicial independence. It could possibly lead to widespread suspensions because there is no limit to ignorance and incompetence in some judicial officers.
solisorabjee@gmail.com
Sorabjee is a former Attorney General of India