A  SENARIO ON PARLIAMENTRY PRIVILEGES

INTRODUCTION –

The term "parliamentary privilege" is essentially used to describe the law relating to the privileges or immunities of Parliament and includes its powers to punish for "contempt" or breach of privilege. The privileges, whether of Parliament itself as a collective body or of the individual members, are intended to enable them to carry out their constitutional functions of legislating, debate and enquiry effectively, independently and without interference or obstruction from any quarter. Since, India has these privileges enshrined in its Constitution, it would be appropriate to approach the topic with reference to the relevant constitutional provisions. The law on the subject in other countries is an important aid for understanding the limits and extent of the law of privileges. .Justice B K Balasubramanian.

Article 105 of the Constitution relating to the "Powers, privileges and immunities of Parliament and its members" and Article 194 relating to the State Legislatures and their members contain certain enumerated privileges and powers while leaving room for a large number of uncodified and unenumerated privileges to continue. Reference to certain other provisions like Articles 118, 121, 122, 208, 211 and 361-A, which also have a bearing on the subject, are made at the appropriate places.

After 68 years of adopting the written constitution having provisions for all laws including Parliamentary Privileges vide Article 105 and many more having a bearing almost in the same mode as the British Parliament enjoys, there is a great need to do introspection on the part of all Parliamentarians in individual and in collective capacity as to what we have been lacking during the last over 06 decades and what efforts we have made to plug the holes to combat the evils  prevailing in our society. Means as to whether the representatives of different sections of Society in Parliament are able to raise the genuine issues of their society/ caste  or the members are only to speak what their party line is, specially the representatives of ruling party. The Parliamentarians are enjoying various privileges and immunities only to enable them to emphatically place the issues of all sectors of society in Parliament and to take forward the RULE OF LAW of the law of the land to build a welfare State as envisaged in the Constitution. In essence, the Parliamentarians   uphold the responsibility of  diversified society which to be resolved with cohesive approach by all in individual and collective way in and out the Parliament.

All strong democracies have at their core the cognition that “parliamentarians must be free to speak their mind in debates and member of parliaments to represent their constituents’ views without fear or favour”. The term ‘parliamentary privilege’ refers to the powers, privileges and immunities enjoyed by Houses of Parliament and their members in the performance of their duties. In spite of this, parliamentary privilege is the privilege of the Houses of Parliament “as a whole and not simply of the individual member”

Every Court of Justice hath Laws and Customs for its direction, some by the Common Law, some by the Civil and Cannon Law, some by peculiar Laws and Customs. all weighty matters in any Parliament moved concerning the Peers of the Realm, or Commons in Parliament assembled, ought to be determined, adjudged and discussed by the course of the Parliament, and not by the Civil Law, nor yet by the Common Laws of this Realm used in more inferior Courts...the King cannot take notice of anything said or done in the House of Commons, but by the report of the House of Commons: and every Member of Parliament hath a judicial place, and can be no witness. And this is the reason that Judges ought not to give any opinion of a matter of Parliament, because it is not to be decided by the Common Laws...

                                                             --- Sir Edward coke

In legal arena the phrase ‘privilege’, is termed as immunity or an exemption from some duty, burden, attendance or liability conferred by special grant in derogation of common right.

Parliamentary privilege is the sum of certain rights enjoyed by each House collectively and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined by statute. Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its members. Other rights and immunities, such as the power to punish for contempt and the power to regulate its own constitution belong primarily to each House as a collective body, for the protection of its members and the vindication of its own authority and dignity. Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by members.

The Report of the National Commission to Review the Working of the Constitution March 31, 2002 felt

Similarly as it expressed its concern about the uncertainty of the Existing law involving parliamentary privileges in India as follows:

“The founding fathers envisaged codification of parliamentary privileges by Parliament by law. But so far no law has been made and these privileges remain undefined. It is a somewhat curious situation that even after more than 68 years after the commencement of the Constitution we are unable to lay down precisely by law when a Member of Parliament is not subject to the same legal obligations as any ordinary citizen is.

The Commission recommends that the time has come to define and delimit privileges deemed to be necessary for the free and independent functioning of Parliament. It should not be necessary to run to the 1950 position in the House of Commons every time a question arises as to what kind of legal protection or immunity a member has in relation to his or her work in the House.

Pre-Constitution compass of parliamentary privileges in British India-

The underpinning of the British Empire was gradually laid in India in the course of the era 1600-1765. “The full-fledged British parliamentary intervention came with the East India Company Act, 1773 which is also called as the Regulating Act. The Act created the office of the Governor General of the Presidency of Fort William in Bengal, to be aided by a Council of four Counselors. The whole civil and military government of the East India Company was vested in the Governor General and Council. The Governor General and Council was authorized to ‘make and issue rules, ordinances and regulations for the good order and civil government’ of the Indian territories.”

Legislative Council of India, during the phase between 1854 and 1861 acted similarly like House of Commons in England in demanding parliamentary privileges and immunities, and certain parliamentary privileges were established over that period for the Legislative Council of India viz.:

·Privilege of freedom of debate;

·Right to repel outside attacks on its dignity and authority by means of a resolution expressing displeasure against anyone including the courts too;

·Right to demand production of papers and information from the Executive Government;

·Right of exclusion of strangers to ensure privacy of debate;

·Right to appoint a Select Committee likely as Committee of Privileges etc.

The Indian Councils Act, 1892 initiated and made historical progress regarding the subject of “freedom of debate in parliament” by which the imposed constraints by the Act of 1861 on “right of debate” were moderately eliminated. The Indian Councils Act, 1909 removed further restraints on “privilege of freedom of debate in the Legislative Councils”.

Provisions under Indian constitutions

The Constitution of India specifies some of the privileges. These are freedom of speech in Parliament –

Article 105. Powers, privileges, etc of the Houses of Parliament and of the members and committees thereof-

1. Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

2. No Member of Parliament shall be liable to any proceeding in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

3. In other respects, the powers, privileges and immunities of each House of Parliament, and the members and the committee of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, [shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (44^th Amendment) Act, 1978].

4. The provision of clauses (1), (2), and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to the members of Parliament.

Parliamentary privileges-this article defines parliamentary privileges of both Houses of Parliament and of their members and committees. Article 194, which is an exact reproduction of Article 105, deals with the State Legislatures and their members and committees. To enable Parliament to discharge functions properly the Constitution confers on each member of the Houses certain rights and immunities and also certain rights and immunities and powers on each house collectively. Parliamentary privilege is an essential incident to the high and multifarious functions which the legislature is called upon to perform. According to May, the distinctive mark of a privilege is its ancillary character a necessary means to fulfillment of functions. Individual members enjoy privileges because the House cannot perform its function without unimpeded use of the services of its members and by each House for the protection of its members and the vindication of its own authority and dignity.

Freedom of speech

Article 105, clause (1), expressly safeguards freedom of speech in parliament. It says: there shall be freedom of speech in parliament. Clause (2) further provides 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. No action, civil or criminal, will therefore lie against a member for defamation or the like in respect of things said in parliament or its committees. The immunity is not limited to mere spoken words; it extends to votes, as clause (2) specifically declares, viz. any vote given by him in parliament or any committee thereof. Though not expressly stated, the freedom of speech would extend to other acts also done in connection with the proceedings of each House, such as, for notices of motions, questions, reports of the committee, or the resolutions.

It may be noted that clause (1) of Article 105 is made Subject to the provisions of this constitution and to the rules and standing orders regulating the procedures of Parliament. The words regulating the procedures of Parliament occurring in clause (1) should be read as covering both the provisions of the Constitution and the rules and standing orders. So read, freedom of speech in Parliament becomes subject to the provisions of Constitution relating to the procedures of Parliament, i.e., subject to the articles relating to procedures in Part V including Articles 107 and 121. Thus for example, freedom of speech in Parliament would not permit a member to discuss the conduct of any judge of the Supreme Court or of a High Court. Likewise, the freedom of speech is subject to the rules of procedures of a House, such as use of unparliamentarily language or unparliamentarily conducts.

The freedom of speech guaranteed under clause (1) is different from that which a citizen enjoys as a fundamental right under Article 19 (1) (a). The freedom of speech as a fundamental right does not protect an individual absolutely for what he says. The right is subject to reasonable restrictions under clause (2) of Article 19. The term? Freedom of speech? as used in this article means that no member of Parliament shall be liable to any proceedings, civil and criminal, in any court for the statements made in debates in the Parliament or any committee thereof. The freedom of speech conferred under this article cannot therefore be restricted under Article 19 (2) Clauses (1) and (2) of Article 105 protect what is said within the house and not what a member of Parliament may say outside. Accordingly, if a member publishes his speech outside Parliament, he will be held liable if the speech is defamatory. Besides, the freedom of speech. To which Article 105 (1) and (2) refer, would be available to a member of Parliament when he attends the session of Parliament, no occasion arises for the exercise of the right of freedom of speech, and no complaint can be made that the said right has been invalidly invaded.

Article 105 (2) confers immunity, inter alia, in respect of anything said in Parliament the word anything is of the widest import and is equivalent to everything. The only limitation arises from the words in Parliament, which means during the sitting of Parliament and in the course of business of Parliament. Once it was proved that Parliament was sitting and its business was transacted, anything said during the course of that business was immune from proceedings in any court. This immunity is not only complete but it is as it should be. It is one of the essence of parliamentary system of government that people's representative should be free to express themselves without fear of legal expenses. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the speaker. The courts have no say in the matter and should really have none.

In a much publicized matter involving former Prime Minister, several ministers, Members of Parliament and others a divided Court,

In P.V.Narsimha Rao v. State has held that the privilege of immunity from courts proceedings in Article 105 (2) extends even to bribes taken by the Members of Parliament for the purpose of voting in a particular manner in Parliament. The majority (3 judges) did not agree with the minority (2 judges) that the words in respect of in Article 105 (2) mean, arising out of and therefore would not cover conduct antecedent to speech or voting in Parliament. The court was however unanimous that the members of Parliament who gave bribes, or who took bribes but did not participate in the voting could not claim immunity from court proceeding's under Article 105 (2). The decision has invoked so much controversy and dissatisfaction that a review petition is pending in the court.

Right of Publication of proceedings

Clause (2) of Article 105 expressly declares that no person shall be liable in respect of the publication by order under the authority of a house of Parliament, of any report, paper, votes or proceedings. Common law accords the defense of qualified privilege to fair and accurate unofficial reports of parliamentary proceedings, published in a newspaper or elsewhere.

In Wason v. Walter, Cockburn, C.J. observed that it was of paramount public and national importance that parliamentary proceedings should be communicated to public, which has the deepest interest in knowing what passes in Parliament. But a partial report or a report of detached part of proceedings published with intent to injure individuals will be disentitled to protection. The same is the law in India. The Parliamentary Proceedings (Protection of Publication) Act, 1956 enacts that no person shall be liable to any proceedings, civil or criminal, in a court in respect of the publication of a substantially true report of the proceedings in either House of the Parliament, unless it is proved that the publication is made with malice.

Other privileges

Clause (3) of Article 105, as amended declares that the privileges of each House of Parliament, its members and committees shall be such as determined by Parliament from time to time and until Parliament does so, which it has not yet done, shall be such as on 20th June 1979 i.e., on the date of commencement of Section 15 of the 44th Amendment. Before the amendment this clause has provided that until Parliament legislates the privileges of each House and its members shall be such as those of the House of Commons in England at the time of commencement of the Constitution. As the position till 20th June 1979 was determined on the basis of original provision, it is still relevant to refer to the law as it has been in the context of English law. In that perspective it may be emphasized that there are certain privileges that cannot be claimed by Parliament in India. For example, the privileges of access to the sovereign, which is exercised by the House of Commons through its Speaker to have at all times the right of access to the sovereign through their chosen representative can have no application in India. Similarly, a general warrant of arrest issued by Parliament in India cannot claim to be regarded as a court of record in any sense . Also the privilege of the two Houses of Parliament, unlike the privileges of the House of Commons and House of Lords in England are identical. To each House of Parliament, accordingly, belong the privileges, which are possessed by the House of Commons in the United Kingdom.

In India freedom from arrest has been limited to civil causes and has not been applied to arrest on criminal charges or to detention under the Preventive Detention Act. Also there is no privilege if arrest is made under s.151 Criminal Procedure Code.

It has been held in K. Anandan Kumar v. Chief Secretary, Government of Madras, that matters of Parliament do not enjoy any special status as compared to an ordinary citizen in respect of valid orders of detention.

In India, the rules of procedure in the House of People give the chair the power, whenever it thinks fit, of ordering the withdrawal of strangers from any part of the House and when the House sits in a secret session no stranger is permitted to be present in the chamber, lobby or galleries. The only exceptions are the members of the Council of States and the persons authorized by the Speaker.

In Pandit M.S.M Sharma v. Shri Krishna Sinha, proceedings for the breach of privilege had been started against an editor of a newspaper for publishing those parts of the speech of a member delivered in Bihar legislative assembly which the speaker had ordered to be expunged from the proceedings of the Assembly. The editor in a writ petition under A. 32 contended that the House of Commons had no privilege to prohibit either the publication of the publicly seen and heard proceedings that took place in the House or of that part of the proceedings which had been directed to be expunged. The Supreme Court by a majority of four to one rejected the contention of the petitioner. Das C.J., who delivered the majority judgment, observed that the House of Commons had at the commencement of our Constitution the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that took place within the House. A fortiori the House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate version of such debates or proceedings.

Now Article 361-A inserted by the 44th Amendment with effect from June 20, 1979 provides that no person shall be liable to any proceedings civil or criminal for reporting the proceedings of either House of Parliament or a State Legislature unless the reporting is proved to have been made with malice. This provision does not apply to the reporting of proceedings of secret sittings of the Houses. In India there also vest a right of the House to regulate its own constitution. When a seat of a member elected to the house becomes vacant, the Election Commission, by a notification in the Gazette of India calls upon the Parliamentary constituency concerned to elect a person for the purpose of filling the vacancy. In India, Article 103 expressly provides that if any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications, the question shall be referred to the President whose decision shall be final. The President is however required to act in this behalf according to the opinion of Election Commission.
As far as right to regulate internal proceedings are concerned Article 122 expressly provides that the validity of any proceedings shall not be called in question on the ground of any alleged irregularity of procedure, and no officer or member of Parliament in whom powers are vested by or under the Constitution for regulating the procedure or the conduct of business or for maintaining order in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

Law Courts and Privileges

Article 105, so also Article 194 subjects the powers, privileges and immunities of each House as well as all its members and all its committees not only to the laws made by the appropriate legislature but also to all other provisions of the Constitution. Both these articles far from dealing with the legislative powers of the Houses of Parliament or of State Legislature respectively are confined in scope to such powers of each House as it may exercise separately functioning as a House. A House of Parliament or Legislature cannot try anyone or any case directly as a court of justice can, but it can proceed quasi judicially in cases of contempt of its authority or take up motions concerning its privileges and immunities in order to seek removal of obstructions to the due performance of its legislative functions. If any question of jurisdiction arises as to a certain matter, it has to be decided by a court of law in appropriate proceedings. For example, the jurisdiction to try a criminal offence such as murder, committed even within a House vests in ordinary courts and not in  Parliament or in a State Legislature. Also, a House of Parliament or State Legislature cannot in exercise of any supposed powers under Articles 105 and 194 decide election disputes for which special authorities have been constituted under the Representation of People Act, 1951 enacted in compliance with Article 329..

Article 194 Powers, privileges, etc.

 The Houses of Legislature and of the members and committees thereof.
1. Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.
2. No member of the Legislature of a State shall be liable to any proceeding in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.

3. In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may be defined from time to time be defined by the Legislature by law, and until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution (Forty Fourth Amendment) Act, 1978.

4. The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature. This article that applies to the State Legislatures and members and committees thereof is an exact reproduction of Article 105, which applies to both Houses of Parliament and committees thereof. Clause (1)- of this article declares that there shall be freedom of speech in the legislature of every State. This freedom is subject to the provisions of Articles 208 and 211.

 A member cannot accordingly raise discussions as to the conduct of a Supreme Court or High Court judge as A. 211 prohibits it. The provisions of the Constitution subject to which freedom of speech has been conferred on the legislators are not the general provisions of the Constitution but only such of them as relate to the regulation of the procedure of the Legislature. The freedom of speech guaranteed to citizens under A. 19 (1) (a) is therefore separate and independent of Article 194 (1) and does not control the first part of clause 1 of A.194. Clause (2)- emphasizes the fact that the freedom of speech conferred on the Legislatures under clause (1) is intended to be absolute and unfettered. Similar freedom is guaranteed to the legislators in respect of the votes they may give in the Legislature or committees thereof. Thus, if a legislator exercises aright of freedom of speech in violation of A. 211 he would not be liable for any action in any court. Likewise, if the legislator by his speech or vote is alleged to have violated any of the fundamental rights guaranteed by Part III of the Constitution in the Legislative Assembly, he would not be answerable for the said contravention in any court. If the speech amounts to libel or becomes actionable or indictable under any other provision of the law immunity has been conferred on him from any action in any court by clause (2). He may be answerable to the House for such a speech and the Supreme Court may take appropriate action against him in respect of it. Thus clause (1) confers freedom of speech to the legislators within the legislative chambers and clause (2) makes it plain that the freedom is literally absolute. Clause (3)- the first art of this clause empowers the State Legislature to make laws Prescribing its powers, privileges and immunities. If the Legislature of a State under the first part of clause (3) makes a law which prescribes its powers, privileges and immunities, such law would be subject to Article 13 and clause (2) of that article would render it void if it contravenes or abridges any of the fundamental rights guaranteed by Part III. The right of State Legislatures to punish for contempt can be discussed with the case law of Powers, Privileges and Immunities of State Legislature, Re. The reference was a sequel to the passing of an order by an unprecedented Full Bench of 28 judges staying, under Article 226, the implementation of the U.P. Assembly resolution ordering two judges of Allahabad High Court to be brought in custody before the Bar of the House to explain why they should not be punished for the contempt of the House. The two judges had admitted the habeas corpus petition of and granted bail to one Keshav Singh who was undergoing imprisonment in pursuance of the Assembly Resolution declaring him guilty of the breach of privilege. The resolution of the Assembly and the stay order issued by the Full Bench resulted in a constitutional stalemate. Consequently, the president referred the matter under Article 143 to the Supreme Court for its opinion. The Supreme Court by a majority of 6:1, through an elaborate and learned opinion delivered by Gajendragadkar, C.J., held that in India notwithstanding a general warrant issued by the Assembly, the Courts could examine the legality of the committal in proper proceedings. Other propositions were also laid down in the majority judgment. It said that Article 194 (3) cannot be read in isolation. The impact of Articles 226, 32 and 211 had to be ascertained in order to determine the scope of Article 194. Article 226 empowers the High Court to issue a writ of habeas corpus against any authority. This would include the legislature since no exception is made in favour of a detention order by the House for the breach of its privileges. Article 211 on the other hand unambiguously indicates that the conduct of a judge in the discharge of his duties can never become the subject matter of any action taken by the House in exercise of its powers or privileges conferred by the latter part of Article 194 (3). The fact that the first part of Article 194 (3) refers to future laws defining the privileges as being subject to fundamental rights is a significant factor in construing the latter part of Article 194. Such a state legislation would be law within the meaning of article 13 and the courts will be competent to examine its validity vis-à-vis the fundamental right. Although no opinion was tendered as regards fundamental rights in general, it was made clear that so far as Articles 21 and 22 are concerned, any privileges etc., which are claimed, must be consistent with these articles in the context of Article 208.

The balance between fundamental rights and parliamentary privilege must be re-examined

Thomas Thorpe, Speaker of the House of Commons, was arrested for the non-payment of some small fine in 1453; parliamentarian Strode was arrested in 1512 for introducing Bills which the Crown did not like; Elliot, Hollis and Valentine were arrested in 1629 for what the Crown considered to be seditious speeches in the House. Parliamentary privileges originated during the long struggle for democracy and citizen’s rights in Britain, between a monarch and Parliament as kings used to get members who spoke or were likely to speak against the king arrested. Today, our legislators get citizens and journalists arrested.

In our parliamentary democracy, where Parliament enjoys almost supreme powers, legislators face no threat from government. In fact privileges have become a tool in the hands of the ruling party. The case of the Karnataka Assembly imposing fines and imprisonment on two journalists for writing something against the Speaker when he was a legislator and against another legislator has once again revived the debate about the need for codifying privileges and giving primacy to a citizen’s right to free speech over legislative privileges.

Why shouldn’t our legislators’ freedom of speech, like the freedom of speech of citizens, be subject to the sovereignty and integrity of the nation, public order, friendly relations with foreign states, incitement of an offence or defamation as mentioned in Article 19(2)? The ‘sovereign people of India’ have a restricted right to free speech but ‘their servants or representatives’ have an absolute freedom of speech in the Houses. Even if one may reluctantly concede such a privilege to them in the interest of the smooth conduct of the House, why should there be the power to send people to jail for the breach of privileges? The Supreme Court’s decision in M.S.M. Sharma (1958), giving primacy to the privileges over free speech, was made in the first decade of the Republic during which the court had a lot of respect for legislators most of them were freedom fighters. However, by 1967, the Supreme Court was convinced that Parliament should not have absolute powers.

Too wide a power

Our legislators have the power to be the sole judges to decide what their privileges are, what constitutes their breach, and what punishment is to be awarded in case of breach. Is this not too wide a power which clearly impinges on constitutionalism, i.e. the idea of limited powers? The fault lies with the framers of the Constitution, who, while drafting the lengthiest constitution of the world, have left the vital area of legislative privileges undefined.

Articles 105 and 194 clearly lay down that the “power, privileges and immunities of the legislature shall be as may from time to time be defined by the legislature, and until so defined, shall be those of the House of Commons”. The expression “until so defined” does not mean an absolute power not to define privileges at all. Legislators have been arguing that codification of privileges will harm the sovereignty of Parliament. Is Indian Parliament really sovereign? We want a uniform civil code but our parliamentarians do not want a codification of their privileges which will not require more than a couple of articles.

Moreover, the drafters of the Constitution also committed the mistake of putting Indian Parliament on a par with the British House of Commons. De Lolme’s statement about the supremacy of British Parliament, that “Parliament can do everything but make a man a woman and a woman a man”, is not applicable to India. British Parliament was also the highest court till 2009. Thus, Indian legislatures and British Parliament differ not merely as regards their general political status but also in the matter of legal powers. Unlike England, in India the Constitution is supreme, not Parliament. Today by sovereignty, we mean “popular sovereignty” and not “parliamentary sovereignty”. The opening words of the Constitution are “we the people” and not “we the legislators of India.”

The codification of privileges is basically resisted because it would make the privileges subject to fundamental rights and hence to judicial scrutiny and evolution of new privileges would not be possible. In fact, the British House has itself broken from the past. Acts and utterances defamatory of Parliament or its members are no more treated as privilege questions. The U.S. House of Representatives has been working smoothly without any penal powers for well over two centuries. Australia too codified privileges in 1987.

It is strange that our legislators, to cover up corruption, not only took cover behind privileges but also pleaded in courts that they were not even ‘public servants’. In the Hardwari Lal and A.R. Antulay cases, the court did accept their contention and held that MLAs are not ‘public servants’. In the P.V. Narasimha Rao case, though they were held as public servants, the Supreme Court, in a controversial judgment, held that they can legally take bribes and vote as per the desire of the bribe-giver and hey will not be liable for corruption because, under legislative privileges, they cannot be questioned “in respect of any vote” given by them.

Our legislators also have protection from arrest in civil cases 40 days before the session, during the session and 40 days after the session. The exemption from arrest is also available for meetings. If we count the days of three parliamentary sessions and meetings then our MPs have protection from arrest for more than 365 days in a year. Is it not absurd? The Constitution Review Commission headed by Justice M.N. Venkatachaliah had recommended that privileges should be defined and delimited for the free and independent functioning of the legislatures. The restrictive interpretation of the Supreme Court holding freedom of speech subject to legislative privileges is not in tune with modern notions of human rights and there is an urgent need to have a fresh look at the vexed question of freedom of press vis-à-vis legislative privileges.

The present position in the law of parliamentary privileges in India was laid down in the case of Raja Ram Pal v The Hon’ble Speaker, Lok Sabha, & Ors. The Supreme Court of India has extensively dwelled on the matter and has delivered a judgment, which is by far the most comprehensive decision in this field of law. The author notes in the analysis that the difference between the English and Indian constitutional systems is of crucial significance. The conflicts between the judiciary and parliament in England arose because of the sovereignty of parliament, and the judiciary had to fight for every inch of its jurisdiction in England. The judiciary had to contend with Parliament not only as a legislative body, but also by virtue of being the ‘High Court of Parliament’, as a superior court. Because of these reasons, the case law from British constitutional history does not have strict applicability in India. The decision of the Supreme Court of India in Raja Ram Pal v The Hon’ble Speaker, Lok Sabha, & Ors, is a clear expression of a very basic feature of the Indian constitutional mechanism: where the Constitution is the supreme law of the land, and all governmental organs, which owe their origin to the Constitution and derive their powers from its provisions, must function within its framework.

Privilege Committee cannot violate Principles of Natural Justice, SC quashes TN Assembly Resolution suspending DMDK MLAs for Breach of Privilege...

A two Judge Bench of Supreme Court Today quashed a resolution passed by Tamil Nadu Legislative Assembly suspending DMDK MLAs for breach of privilege. The Bench comprising of Justices J.Chelameswar and Abhay Manohar Sapre has held that while taking action against the MLAs the requirement of article 14 were not complied with.

Conclusion –There is a clear demarcation as to what all rights and privileges are absolute and what are not. For example, in India Legislative Assemblies and Parliament never discharge any judicial function and their historical and constitutional background does not support their claim to be regarded as courts of record in any sense. No immunity from scrutiny by courts of general warrants issued by House in India can therefore be claimed. Both the Parliament and State Legislatures have a duty to look carefully before making any law, so that it doesn't harm other rights. It is also a duty of the members to properly use these privileges and not misuse them for alternate purposes that is not in the favour of general interest of nation and public at large. Thus what we must keep in mind is the fact that? Power corrupts and absolute power corrupts absolutely. For this not to happen under the privileges granted, the public and the other governing body should always be on vigil.

References

V.N Sukla Indian constitution

JN Panday constitution of india

Shodhganga

www.livelaw.com

legal service of india

rajyesabha tv

The hindu

Bare act of constitution

Morley minto reforms act.

Collection by:

Mr Neeraj Sharma,

Asstt Professor,

Global College of Law

Ghaziabad .