Inhibiting Free Speech

Context:  Litigations related to Delhi Assembly’s summoning of Facebook’s head to depose before its Peace and Harmony Committee have far-reaching implications on federalism, the separation of powers and fundamental rights in India.

Background on Parliamentary Privileges

• Defined as a set of rights and immunities that are essential for the functioning of Parliament (similar privileges are also applicable to state assemblies).
• Available rights: 
  • Right to free speech in the House; except the discussion about judges
  • Right to call for evidence and witnesses: Exemplifies non-judicial power of legislatures; Walter Bagehot would call the expressive and informative function of the House.

Adverse Impact of the litigation 

• On Rights of the state: Since politically, assembly is the voice of the people of a State, and thus, it has the right to discuss matters that affect the people.
• On Federalism: If the states are not allowed to even discuss or take evidence on issues beyond their limited legislative competence, it hurts cooperative federalism.
  • The argument is if Atomic energy is under the exclusive jurisdiction of the Centre, doesn’t a state have a right to enquire about its ecological implications.
  • (Clearly, some states have passed resolutions against the Citizenship Amendment Act)
• On separation of powers: Pre-emptive involvement of the court in the inquiry stage in undesirable as the role of courts is restricted to adopting a test of pith and substance of the law in question.
  • No theory of judicial review would justify such a deep dive into the “political thicket” to examine the proceedings of the House.
  • The Canadian chronicler Maingot hints about restrictions based on legislative competence (In Canada) but is careful to add that they are self­imposed, not court mandated.