Determination of Point of Order raised on March 13, 2023 by Leader of Opposition Mallikarjun Kharge

Following are the remarks by the Rajya Sabha Chairman in House today on Point of Order raised by the Leader of Opposition in Rajya Sabha –

1. On March 13, 2023, the Hon’ble Leader of Opposition Shri Mallikarjun Kharge, responding to the assertions of the Leader of the House Shri Piyush Goyal, who demanded apology for “the shameless way by which a senior leader of the opposition in a foreign country has attacked the democracy of India, insulted the Parliament of India” raised a Point of Order that there could be no discussion/reflections in the Rajya Sabha on or about a Member of the Lok Sabha or anyone who is not a member of the Rajya Sabha.

2. While the Leader of the House Shri Piyush Goyal did not name anyone, he severely impeached what he termed the overseas disparaging remarks by a senior leader of the opposition tainting and tarnishing our Parliament.

3. The point of order concerning debate/discussion competence of Rajya Sabha, albeit Parliament, the most authentic representative and sanctified platform in our democratic polity, couldn’t be more important. In considering this I am cognizant that we are the largest and mother of all Democracies, and home to nearly one sixth of humanity. Our Parliament is the sanctum sanctorum of Democracy.

4. Parliament as per article 79 of the Constitution ‘shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People’. Reflections or assertions about ‘Parliament’ have also to be considered keeping in view this fact situation.

5. Article 105 of the Constitution, repository of ‘powers, privileges, etc of the Houses of Parliament and of the Committees thereof’, affords ‘freedom of speech in Parliament’ to Members of Parliament, imparting immunity to the effect that “no Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof.”

6. Article 121 of the constitution regulates discussions in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties upon a motion for presenting an address to the President praying for the removal of the Judge.

7. Constitutional mechanism thus stipulates no fetters or restrictions upon the freedom of expression privilege of Members of Parliament in Parliament. As a matter of fact, this is fortified and enhanced on account of there being immunity from civil or criminal action.

8. Rules 238 and 238A, framed for ‘regulating the Procedure and Conduct of the Business’ in terms of Article 118(1) of the Constitution, bear contextual relevance. Rule 238A, as a matter of fact, does provide for discussion in Rajya Sabha against a Lok Sabha member, subject to requiring previous intimation to the Chairman when it comes to making ‘allegation of a defamatory or incriminatory nature’ by a Member against any other Member or a Member of the Lok Sabha. Similarly under rule 238 (v), a Member can reflect upon the conduct of a ‘person in higher authority’ only on the premise of a substantive motion drawn in proper terms.

9. Thus stipulations in the rules call for a previous intimation to the Chairman only when it comes to making ‘allegation of a defamatory or incriminatory nature’ by a Member against any other Member or a Member of the Lok Sabha and not otherwise.

10. Constitutional ‘privilege’ of ‘freedom of expression’ and ‘immunity’ from any civil or criminal action to Members of Parliament, calls for high degree of care, caution and accountability. This unique freedom privilege comes with heavy obligations. Breach of this privilege by engaging in reckless trading of allegations or free fall of information, invectives and innuendos or setting afoot pernicious narratives entail serious consequences.

11. The sanctity of the temple of democracy cannot be permitted to be outraged as privilege does not extend to engaging in demeaning parliament, making disparaging observations tarnishing constitutional institutions or set afloat narratives premised on reckless allegations of untenable fact premise.

12. The Leader of the House Shri Piyush Goyal, as directed, has authenticated the assertions made by him in the Rajya Sabha on March 13, 2023 that led to raising of Point of Order by Hon’ble Leader of Opposition Shri Mallikarjun Kharge. The direction for submission of documentation, including electronic, was imparted as this was relevant to determination of the Point of Order raised by the Hon’ble Leader of Opposition.

13. Any curtailment or qualification of the constitutional privilege of freedom of expression, of a Member of the Parliament in the Rajya Sabha will seriously compromise and impede blossoming of democratic values.

14. Democratic ethos, well cherished and nurtured Parliamentary values persuade me to tilt in favour of sustaining this constitutional right of “freedom of expression” of a Member of Parliament that cannot suffer any constraint and is subject only to the wisdom of the House and the Chairman.

15. Time for us to bear in mind highly significant reflections by Dr. B. R. Ambedkar in his last speech to the Constituent Assembly. He said “What perturbs me greatly is the fact that not only India has once before lost her independence, but she lost it by the infidelity and treachery of some of her own people.……But this much is certain that if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost forever. This eventuality we must all resolutely guard against. We must be determined to defend our independence with the last drop of our blood.”

16. After bestowing earnest consideration on this momentous aspect I am of the firm view that there can be no issue or individual beyond the purview of discussion in the Rajya Sabha and the same is exclusively subject to regulation by the House and the Chairman. The two precedents relied upon by the Hon’ble Leader of Opposition have no bearing on the issue being determined herein.

17. Further the authenticated record made available by the Leader of House, Shri Piyush Goyal, bears out that his demand of apology on the overseas statements made by a senior leader of opposition is factually premised and does not graduate to making ‘allegation of a defamatory or incriminatory nature’. The documentation submitted by Leader of the House, as per directive, bears out his assertions imparted in Rajya Sabha on March 13, 2023, same being in consonance with fact situation.

18. In view of categorical and firm constitutional prescriptions, I cannot persuade myself to sustain the point of order raised by the Hon’ble Leader of the Opposition Shri Mallikarjun Kharge and the same is hereby declined.