Exercise Of Power Of Privilege By State Legislature Is Open To Judicial Review : Calcutta HC [Read Judgment]

The Calcutta High Court has quashed an order passed by the Speaker of West Bengal Legislative Assembly imposing a punishment on a person for allegedly violating privilege of the house by making statements against the Speaker.

The High Court found that the decision was taken in violation of principles of natural justice, as no right of cross-examination was given to the person in the proceedings. The Court said that the decision of the House is open to judicial review on the limited grounds such as violation of principles of natural justice.

"..exercise of power of privilege by a State Legislature is open to judicial review on judicially discoverable and manageable standards, such as on grounds of lack of jurisdiction or the impugned decision being a nullity for some reason such as gross illegality, rationality, violation of constitutional mandate, mala fides, non compliance with rules of natural justice and perversity. The twin test of legality and constitutionality of an action of a State Legislature in exercise of power of privilege can be applied by a Court", observed Justice Debangsu Basak in the judgment.

Reference was made to the SC precedent in the case Raja Ram Pal v Hon'ble Speaker Lok Sabha.

The Court was considering the petition to quash the order of the State legislature imposing punishment upon the petitioner sentencing him to detention till adjournment of the sitting of the West Bengal State Legislative Assembly.

The petitioner, in this case, participated in a television program telecast live on a News channel where he was alleged to have made a defamatory statement about the Speaker of the State Legislature. A Privilege Committee was constituted by the State Legislature to examine the allegation, based on an affidavit filed by an MLA (complainant) against the petitioner.

On the basis of the report of the Privilege Committee, the petitioner was sentenced to detention until the adjournment of the sitting of the West Bengal State Legislative Assembly. The petitioner alleged that the copy of the same was not made available to him.

The petitioner was also denied the right of cross-examination of the complainant which is a substantive and an integral part of principles of natural justice. Since the allegation made by the complainant (MLA) was denied by the petitioner, the court said,

"The petitioner therefore, has a right to cross-examine the complainant, when, the complainant has alleged that, the words spoken of by the petitioner are acts of contempt. In my view, denial of a right of cross-examination on such aspects prejudicially affects the petitioner and is in breach of principles of natural justice. The Privilege Committee has acted with material irregularity in acting on the basis of an affidavit of the complainant which was not tested by cross-examination."

The court observed the first report of the Privilege Committee as non-speaking since it has not spoken the aspect of the request of cross-examination and hence the report is a nullity.

While highlighting the importance of cross-examination the court opined that any authority adjudicating the rights between the parties is enjoined with the duty to adhere to the principles of natural justice. In such proceedings, the adjudicator has to afford a reasonable opportunity of hearing both the parties.

"The right of cross-examination of the witness produced against a party is an integral part of the right to have an equal opportunity of being heard by the adjudicator."

"Democracy encompasses, protects, nurtures and provides space for dissent. Democracy has the widest space for every spectrum of voices and ideas. Our nation is a democracy. Our Constitution protects the fundamental right to free speech. However, such right is not absolute and can be subjected to reasonable restrictions", the Court said.

In addition to this, the court also answered other issues raised in the petition relying on several judicial precedents such as Lokayukta, Justice Ripusadan Dayal(retired) & Ors. v. State of Madhya Pradesh where the apex court held that speeches or writings containing vague charges against the Members or criticizing their parliamentary conduct in a strong language, particularly, in the heat of public controversy, without, however, imputing any malafides are not treated as contempt or breach of privilege of the House.

Case Details
Case Title: Arunava Ghosh v. The speaker, West Bengal Legislative Assembly & Ors.
Case No. : WP No. 1125 of 2013
Corum: Justice Debangsu Basak 

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