A Gag Order In Parliament

Key Takeaways

• The Lok Sabha Secretariat has issued a new booklet, claiming the use of certain words as “unparliamentary”. 
• This booklet places a gag order on the usage of such words in either of the houses-Lok Sabha or Rajya Sabha. 
• A gag order and a parliamentary gag order are different by virtue of legal sanctity.
• The opposition claims the rules to be biased against them, while the secretariat claims otherwise. 
• The exercise of issuing parliamentary gags has been adopted from the British parliamentary rules. 
• Rule Number 373 and 374 of the Rules of Procedure and Conduct of Business give the Speaker the power to suspend any MP on account of “unruly” or “disorderly” behavior. 

Introduction

With a heated war of words breaking out over the newly issued guidelines pertaining to “unparliamentary words”, the upcoming monsoon session is set to be all stormy. With the opposition being vocal about the bias in favor of the ruling party, and the government denying any interference, various accusations, comments, and claims have made the headlines. However, where exactly does the issue lie? Who are the people involved and does any law govern the issue? This article will go through all the beats of the recent Gag order passed by Parliament. 

What is a Gag Order

Before unraveling the political aspect of the recent development, it is imperative to first understand the meaning and significance of a gag order. 

A gag order or suppression order is typically a legal order by a court or government which restricts information or comments from being made public or passed onto any unauthorized third party. In laymen’s terms, it simply prevents the receiver of said order to say or publish any information specified within the order. 

Uses of gag orders range from maintaining trade secrets, protecting national integrity, and protecting the privacy of victims or minors. However, gag orders, upon being issued lead to an unequal shift in the power dynamic of the parties involved. Thus, by virtue of this inequality, power remains concentrated with the issuer. This inevitably leads to abuse of this power and can be used as a means to intimidate witnesses and prevent the release of information, which would bring disrepute to the issuer. Thus, their use is widely regarded as unconstitutional because they can potentially curb the reliability of any piece of information. 

A parliamentary gag order, however, is slightly different than a conventional gag order. A parliamentary gag order holds no legal sanctity, i.e., no legal recourse can be taken against a person who doesn't follow the gag order. Article 105(2) of the Indian Constitution states that no Member of Parliament shall be liable to any proceedings in any court in the context of anything said by him in Parliament or any committee of the Parliament. However, in extreme cases, punitive damages in the form of suspension can be awarded, which the article will further discuss. 

Why is it in News

Recently, the Lok Sabha Secretariat issued a new booklet. According to the booklet, usage of terms like 'jumlajeevi', 'Baal buddhi', 'Covid spreader' and 'Snoopgate' and even common words like 'ashamed', 'abused, 'betrayed', 'corrupt', 'drama', 'hypocrisy' and 'incompetent' will now be recorded as “unparliamentary” in both Lok Sabha and Rajya Sabha. 

At least 40 such words and terms have been listed in the booklet. This list is causing such an uproar because it comes a mere 4 days before the beginning of the Monsoon Session. 

Even Words like 'murder', 'sexual assault', 'corrupt', and 'negligence' can also be found mentioned in the booklet, leading to confusion about whether these expressions can be used during debates in Parliament or not. 

Opposition’s Response

The opposition perceived this new move as an offensive against BJP’s dissidents. Major parties including the Congress, Trinamool Congress, and Shiv Sena vocally slammed the issuance of this “gag order” by denouncing it as being violative of the spirit of democracy. The opposition believes this move to be biased because the words mentioned in the booklet have previously been used to describe and criticize the Modi dispensation. Many leaders stirred up a hornet’s nest on the micro-blogging site Twitter and expressed their disapproval of the move. 

Former Congress chief Rahul Gandhi took to Twitter and termed the compilation the "New Dictionary for New India". He added that "Words used in discussion and debates which correctly describe the PM's handling of the government, now banned from being spoken."

Mallikarjun Kharge, a Rajya Sabha MP commented that the government’s an of such words will remain futile because they will have to answer to the public about the arbitrary price rises, LPG, Agneepath scheme, and rising unemployment. 

Congress general secretary Jairam Ramesh bluntly expressed that the banned words sum up the reality of the Modi government.

Trinamool Congress leader Derek O’Brien also tweeted- “Session begins in a few days. GAG ORDER ISSUED ON MPs. Now, we will not be allowed to use these basic words while delivering a speech in #Parliament: Ashamed. Abused. Betrayed. Corrupt. Hypocrisy. Incompetent. I will use all these words. Suspend me. Fighting for democracy.” Another TMC MP,

MahuaMoitra tweeted quite unabashedly -“My first of new Twitter series on replacements for unparliamentary words. Banned word: Sexual Harassment. Replacement- Mr. Gogoi.”. Moitra was referring to the case of sexual assault against Gogoi, the former CJI in, 2019. 

Secretariat’s Response

With the barrage of tweets and responses to the booklet floating online, Om Birla, the speaker of Lok Sabha, and head of the secretariat clarified on behalf of the center, defending the booklet. He said that the compilation of the booklet is a parliamentary practice and nothing novel. He further explained that no word has been out rightly banned but everybody should respect and uphold the decorum of the house, that is where the beauty of democracy lies. He distinctly clarified that the government has not interfered in the matter and that the decision was taken solely by the Chair. 

He further added that the booklet has been posted on the Lok Sabha members portal and ever since 2010, has been a regular exercise undertaken every year. The Speaker said it is a parliamentary tradition that can be traced back to 1954 and is done independently of the government. 

"Such compilations have been brought out in the years 1986, 1992, 1999, 2004 and 2009. Since 2018, this compilation has been uploaded on the Lok Sabha intranet and members’ portal for the use of MPs. During discussions, the presiding officer of the house, if they think fit, can refer to the records of those words or phrases which have been expunged earlier," Speaker Birla clarified.

History of the Practice 

The Rules of Procedure (ROPs) of the Indian Parliament have been modeled after the British parliamentary rules, where “expunging” or words or expression, or instructions to exercise “restraint” during proceedings can be traced back to the early 1600s. 

An entry in the Commons journal dated 1604 is often revered as the first time the House took the parliamentary action of gagging. However, this entry was most likely the first evidence of documentation of this rule, not necessarily the first occurrence. 

The Indian parliament, since 1954, documented words that would not be consonant with the house’s decorum. Many words since have been added and dropped while exercising this routine practice. 

What if the Members Use Any of the Restricted Words

As already mentioned, if any MP uses the restricted words, no action can be taken against them because the document does not hold any legal sanctity and therefore, doesn't bound any MP legally. However, the speaker can expunge, redact or obliterate any indecent and defamatory expression at his discretion, taking into account the context of said expression. The booklet, in a literal sense, cannot “ban” the usage of any word, it can only ask the MPs to “exercise restraint” while using such words. 

Can the MPs Face Any Serious Consequences

This is where the waters start getting cloudy. Because why is the opposition causing such a stir, if the document holds no legal sanctity? It is because the consequences of defying the document are hidden and indirect. The one major setback the opposing MPs can face is suspension from their respective house, something which the rules don't mention. 

The onus of suspending an MP lies with the Speaker of Lok Sabha (in this case, Om Birla, who belongs to the Bharatiya Janata Party). The general principle behind exercising suspension is upholding the order, integrity, and decorum of the House. Thus, if an MP displays unruly behavior, the speaker can ask the MP to withdraw from the house for the rest of the day, and depending on the severity of the incident, place him/her under suspension. 

Now, because “unruly”, “disorderly” and “unparliamentary” are subjective words, the closest that one can come to establishing their objectivity is by analyzing the actions, and more importantly, the “speech” of any MP. If said speech mentions any of the words or expressions explicitly published in the booklet, fulfillment of grounds of suspension becomes easier. It is noteworthy that an MP shall not necessarily get suspended on account of “disorderly” behavior when they use the “banned” words, however, abuse of power is a genuine concern of the Opposition.

Rules Under Which the Speaker can Withdraw/Suspend MPs

Rule Number 373 of the Rules of Procedure and Conduct of Business propounds that if The Speaker believes that the conduct of any Member is grossly disorderly, he may direct such Member to withdraw immediately from the House. The member so directed will have to resort to withdrawal from the house for the day’s sitting. 

To deal with more recalcitrant Members, the Speaker can resort to Rules 374. They explain that: 

• If the Speaker deems it necessary, he may name a Member who disregards the authority of the Chair or abuses the rules of the House by persistently, willfully, and maliciously obstructing the proceedings and agendas thereof.
• Once named, The Speaker can entertain a motion that puts the Member at the risk of suspension. If the motion passes, the Member so named will be suspended from the service of the House for a period not exceeding the remainder of the session: Provided that the House may, whenever it seems appropriate resolve that such suspension be terminated.
• A member suspended under this rule would be obliged to withdraw from the precincts of their respective house. 

Conclusion

While the authority of the Speaker is paramount, the enforcement of which is absolutely essential in order to run the house smoothly, it mustn’t be arbitrarily used. A balance needs to be struck. As mentioned above, the concern of the dissidents should be acknowledged because the Speakers’ actions may be dictated by expediency and the stand of the party that they belong to, rather than by constitutionally approved principles. 

Any rules or guidelines which curb the representatives’ freedom of speech, even slightly, should be implemented with the view of upholding democracy. At the end of the day, the opposing parties and the ruling parties, while fighting for power, should be on the same team, i.e. one that promotes the welfare of the country.