Parliamentary Privileges
Parliamentary Privileges
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TABLE OF CONTENT
CONTENTS
1. Abstract 4
2. Introduction 4
3. Types Of Parliamentary Privileges 5
4. Punishments Prescribed for Breach of Privileges or Contempt of the House 10
5. What Constitutes Parliamentary Breach or Contempt of the House? 11
6. Codification of the Parliamentary Privileges 12
7. Judicial Review of the Parliamentary Privileges 13
8. Privileges and the British Constitution 14
9. Relevant Provisions Concerning Privileges in the Indian Constitution 14
10. Parliamentary Privileges and the Principle of Natural Justice 16
11. Privileges and Fundamental Rights 17
12. Privileges and the Courts 18
13. Conclusion 20
14. Bibliography 22
3
TABLE OF CASES
CASES
PARLIAMENTARY PRIVILEGES
4
ABSTRACT
The project talks about the Parliamentary Privileges under Constitutional Law. The term
“privileges” is sometimes used as “unfair advantages” given to members of Parliament by the
Constitution of India. The project tries to cover all the aspects of Parliamentary Privileges
and also tries to find out whether these privileges should be codified or not through reading
out a number of judgements decided by the Hon’ble Courts of our country. Parliamentary
privileges are defined in Article 105 of the Indian Constitution. The members of Parliament
are exempted from any civil or criminal liability for any statement made or act done in the
course of their duties. The privileges are claimed only when the person is a member of the
house. As soon as he ends to be a member, the privileges are said to be called off. The
privileges given to the members are necessary for exercising constitutional functions. These
privileges are essential so that the proceedings and functions can be made in a disciplined and
undisturbed manner.
INTRODUCTION
As Dicey1 says, “it is harder to define than the extent of the indefinite powers or rights
possessed by either House of Parliament under the head of privilege or law and custom of
Parliament”. As per the Oxford dictionary 2 the term privilege refers to the “special right,
advantage or immunity to the particular person. It is a special benefit or honour”.
Hence it can be inferred that the term “privileges” refers to the special rights and advantages
that are enjoyed by the members of parliament over the citizen of India. Various authors
throughout the world have interpreted the word privileges according to the norms and
scenario exists in their respective country.
In the case of Raja Ram Pal v Hon’ble speaker 3, the court defined the term privilege as “A
special right, advantage or benefit conferred on a particular person. It is a particular
advantage or favour granted to one person as against another to do certain acts”. Inherent in
the term is the idea of something, apart and distinct from a common right which is enjoyed by
all persons and connotes some sort of special grant by the sovereign.
The word grant by sovereign refers the privilege is conferred to them by the higher authority
and the privilege an immunity is derived from them only to such members. As inspired by the
1
Preeti Singh, Parliamentary Privileges, https://www.lawctopus.com/academike/parliamentary-privileges/
2
10th Edition, Oxford dictionary, 1138
3
Raja Ram Pal v Hon’ble speaker, AIR 2007 SC (Supp) 1448
5
privileges of the house of the commons. The privileges of House of Commons have been
defined as “the sum of the fundamental rights of the house and of its individual members as
against the prerogative of the crown, the authority of the ordinary court of law and the special
rights of the House of Lords”.4
“Other such 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”.
44
Rachel Macreadie, An Introduction to Parliamentary Privilege,
https://www.researchgate.net/publication/280735124_An_Introduction_to_Parliamentary_Privilege
5
16th Edition., Sir Thomas Erskine May, Parliamentary Practice, Chapter III, p.42.
6
Sir John Elito’s Case - The House of Lords recognised that the court should never have
assumed jurisdiction over the charge of seditious speeches, which was “fully answered by the
plea of privilege” and reversed the decision of Court of King’s bench in which they have
convicted Sir John for delivering a seditious speech in House of Common.
The Supreme Court in the case of Tej Kiran Jain v Sanjeeva Reddy6 held that “once it is
proved that parliament was sitting and its business was being transacted, anything said during
the course of that business was immune from proceeding in any court”.
The freedom of speech and expression, guaranteed to a citizen under Article 19(2) 7
is
different from the freedom of speech and expression provided to a member of the parliament.
It has been guaranteed under Article 105(1) 8 of the Indian constitution. But the freedom is
subject to rules and orders which regulates the proceedings of the parliament.
This right is given even to non-members who have a right to speak in the house. Example,
attorney general of India. So that, there is fearless participation of the members in the debate
and every member can put forward his thought without any fear or favour.
The majority (3 judges) of the Apex Court did not agree with the minority (2 judges) and
explained that expression “in respect of” in Article 105(2) must be given a wide meaning so
as to comprehend an act having a nexus or connection with the speech made or a vote given
by a member in parliament or any committee thereof. So interpreted, it would include within
its ambit, acceptance of a bribe by a member in order to make a speech or to cast his vote in
parliament or any committee thereof in a particular manner.
Some limitations are also present which should be followed in order to claim immunity
6
AIR 1970 SC 1573.
7
Ankit Jain, Indian Parliament, https://www.lawkidunya.com/
8
Jayant Bhatt, An Analysis of Parliamentary Privileges in India,
https://www.legalserviceindia.com/articles/parliamentary001.htm
9
AIR 1998 SC 2120
7
If the detention of any member of the parliament is made, the chairman or the speaker should
be informed by the concerned authority about the reason for the arrest. But a member can be
arrested outside the limits of the house on criminal charges against him under The Preventive
Detention act, The Essential Services Maintenance Act (ESMA), The National Security Act
(NSA) or any such act.
This privilege does not extend to arrests or imprisonment on a criminal charge 12 or contempt
of court13 or to preventive detention14. However, in case a member is so arrested, Rule 261 of
Lok Sabha lays down a duty of the detaining authority to communicate to the house to which
member belongs, the reasons for arrest or detention, the time of arrest, the place where he is
detained or imprisoned and the period for which the member is detained or arrested. It has
been held in K. Anandan Nambiar v. Chief Secretary, Governor of Madras 15 , that matters
of Parliament do not enjoy any special status as compared to an ordinary citizen in respect of
valid orders of detention.
10
Harsh Agrawal, Parliamentary Privileges and Immunities, https://blog.ipleaders.in/parliamentary-privileges-
india/
11
Bare Acts, Civil Procedure Code, 1908, Section 135-A
12
Kalyan Chandra Sarkar v. Rajesh Ranjan, 2005 (3) SC 307
13
16th Edition., Sir Thomas Erskine May, Parliamentary Practice, Chapter III, p.82
14
Smt. Indira Gandhi v Raj Narain, AIR 1975 SC 2299.
15
AIR 1966 SC 657.
8
But, any partial report of detached part of proceedings or any publication made with malice
intention is disentitled for the protection. Protection is only granted if it reflects the true
proceedings of the house. If any expunged proceedings are published or any
misrepresentation or misreporting is found, it is held to be the breach of the privilege and
contempt of the house.
In Wason v. Walter17, Cockburn, C.J. observed that it was of paramount public and national
importance that parliamentary proceedings should be communicated to the 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.
In Pandit M.S.M Sharma v. Shri Krishna Sinha 18, popularly known as Searchlight
case proceedings for the breach of privilege had been started against an editor of a newspaper
16
Akhtar Ali Khan, Power, Privileges and Immunities of Parliament, Vol. 4, The Indian Journal of Political Science,
pp. 309
17
Wason v. Walter, (1868) LR 4 QB 73.
18
Pandit M.S.M Sharma v. Shri Krishna Sinha AIR 1959 SC 395.
9
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 Article 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 “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”19. A fortiori House had at the relevant time the power or privilege of prohibiting the
publication of an inaccurate version of such debates or proceedings. The Court said that the
effect in law of the order of the Speaker to expunge a portion of the speech of member might
be as if that portion had not been spoken.
The Parliamentary Proceedings (Protection of Publication) Act, 1956 enacts that “no person
shall be liable to any proceedings, civil or criminal, in any court in respect of the publication
of a substantially true report of the proceedings of either House of the Parliament 20, unless it
is proved that the publication is made with malice.” The Act was repealed during the 1975
Emergency.
Rule 248 of Lok Sabha give the Chair the power21, 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. 22 The only
exceptions are the members of the Council of States and the persons authorized by the
Speaker.
19
8th ed, M.P. Jain, Constitutional Law 126,
20
13th edition. V.N. Shukla, Constitution of India 128,
21
Constitution of India (Bare Acts)
22
,
Ram Jethmalani, DS Chopra Parliamentary Privileges Law and Practice, p. 316
10
This right has been defined as ‘keystone of parliamentary privilege’ because, without this
power, the house can suffer contempt and breach and it is very necessary to safeguard
house’s authority and discharge its functions. This power has also been upheld by the
judiciary in most of the cases. The house can put in custody any person or member for
contempt till the period the house is in session.
23
8th ed, M.P. Jain, Constitutional Law 126,
24
Constitution of India (Bare Acts)
25
In Re Under Article 143, AIR 1965 SC 745.
11
3. Prosecuting the Offenders: The parliament can also prosecute the one committing
the breach.
Here, the privilege is available when the member is performing his duties. An assault done by
any person on the member of the parliament in the course of performing his duties is treated
as contempt of the house.
1. Publishing any matter concerning the character of any member of the parliament
In spite of the fact that the freedom of the press is subject to the parliamentary privileges,
certain enactments have been made for the protection of the freedom of the press. If the
fundamental right is being violated, there is no meaning of democracy. The freedom of the
press has to be protected because we need to be informed about the acts of our
representatives. Parliamentary Proceedings (protection of the publication) Act, 1977 26
protects the rights of the press under certain given circumstances. They are:
Our Indian parliament enjoys supreme powers as being a member of the parliament. There is
also misuse of the privileges given to them because they do not have many restrictions on the
rights. They have the power to be the judge of their own proceedings, regulate their
proceedings, what constitutes the breach and what punishment should be given for the
breach, are solely decided by them.
The power vested in them is too wide as compared to the fundamental rights vested in the
citizens. With no codification of the privileges, they have gained an undefined power because
there is no expressed provision to state the limitations on their powers. The privilege from
any civil arrest for 40 days before and after the session and during the session results in
exemption from arrest for even more than 365 days. No comprehensive law has been till date
enacted by the parliament for the codification of the parliamentary privileges.
It is mostly resisted by the members because then it will be subjected to the fundamental
rights and would be in the purview of judicial review. Justice M.N. Venkatachaliah, while
heading the Constitution Review Commission also recommended to define and delimit the
privileges for the free and independent functioning of the legislature. This is based on the
apprehension that codification will involve interference of the court as the matters would be
presented in the court of law. Non-codification of privileges has led to greater powers being
enjoyed by the members. But now the time has come to codify and define the privileges and
actions must be taken so that there is smooth functioning of the parliament without any
conflict.
The judiciary has to take a stand on the wrongs committed by the members who are taking
the shelter of the privileges. The Supreme Court in Keshav Singh’s case27 observed that the
privileges conferred on the members are subject to the fundamental rights.
27
Keshav Singh v. State of UP, AIR 1965 SC 745.
14
The Supreme Court has also held that any conflict arising between the privileges and the
fundamental rights would be resolved by adopting harmonious construction. The judiciary is
very well aware of the fact that it does not have jurisdiction over parliamentary matters but it
is necessary for the society that any violation should be resolved by the court as it deems fit.
“One of the hallmarks of such sovereignty is the right to make or unmake any law which no
court or body or any person can set aside or override.” On the other hand, the Indian
Parliament is a creature of the Constitution and its powers, privileges, and obligations are
specified and limited by the Constitution.
Article 105 29
and 194 30
of the constitution of India deals with the power privileges and
immunities of parliament and its members and of their state legislature and their members
respectively. This constitution of India does not exhaustively enumerate the privileges of
Indian parliamentarian. As Section 3 of both these articles refers directly to the privilege of
the House of Commons at the commencement of the constitution. Hence it basically deals
with all those privileges that exist in the House of Commons as on 26 January 1950.
Article 105: Powers, privileges, etc. of the House of Parliament and of the members and
committees thereof- 31
(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 proceedings 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 of the members and the committees 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 (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 Parliament or any committee thereof as they apply in relation to
members of Parliament.
Article 194: Powers, privileges, etc. of the House of Parliament and of the members and
committees thereof- 32
(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.
29
2 Ed, DD Basu, Constitution of India, p.326
30
8th ed, M.P. Jain, Constitutional Law 126,
31
Constitution of India (Bare Acts)
32
Constitution of India (Bare Acts)
16
(2) No member of the Legislature of a State shall be liable to any proceedings 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 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.
Hence from the above 2 different Article of the Indian Constitution, it can be inferred that the
position of the state legislature is the same as those of the house of parliament. Therefore
Article 105 applies Mutatis Mutandis to the state legislature as well. Both articles expressly
mentioned two privileges namely- freedom of speech and freedom of publication of
proceedings.
By a resolution dated 31-03-2015, the members were suspended for a period of ten days for
the next session. Further it was extended to cutting of their salaries and giving any other
33
Algaapural R. Mohanraj v Tamil Nadu Legislative Assembly, 2016 SCC OnLine SC 134
17
benefit till the suspension period. A writ petition was filed by the members in the Supreme
Court under Article 32 of the Constitution.
Judgement
The court rejected the contention of the petitioners that the resolution violated Article 19(1)
(a) and 19(1)(g). It further accepted the contention that the right was violated under Article 14
of the Constitution. The court observed that the video recording which showed the act of the
members amounting to the breach was not presented before the petitioners. If it would have
been presented then, they might have had the chance to explain their conduct. It was further
directed by the court to restore the salary and other benefits of the petitioner.
However, in M.S.M. Sharma v. S.K. Sinha35 it was also contended by the petitioner that the
privileges of the House under A.194 (3) are subject to the provision of Part III of the
Constitution. In support of his contention, the petitioner relied on the Supreme Court’s
decision in Gunupati Keshavram Reddi v. Nafisul Hasan. But, in Sharma’s case, the
Supreme Court held that in case of conflict between fundamental right under Article 19 (1)
(a) and a privilege under Article 194 (3) the latter would prevail. As regards Article 21, on
facts the Court did not find any violation of it.
In Re Under Article 143,36 the Supreme Court explained the proposition laid down
in M.S.M. Sharma case and said:
34
Gunupati Keshavram Reddi v. Nafisul Hasan, AIR 1954 SC 636.
35
M.S.M. Sharma v. S.K. Sinha, AIR 1959 SC 395.
36
In Re Under Article 143, AIR 1965 SC 745.
18
‘We do not think it would be right to read the majority decision as laying down a general
proposition that whenever there is a conflict between the provisions of the latter part of
Article 194(3) and any of the provisions of the fundamental rights guaranteed by Part III, the
latter must always yield to the former. The majority decision, therefore, is taken to have
settled only that Article 19(1)(a) would not apply and Article 21 would.’
The rules of each House provide for a committee of privileges. The matter of breach of
privilege or contempt is referred to the committee of privileges. The committee has the power
to summon members or strangers before it. Refusal to appear or to answer or to knowingly to
give the false answer is itself a contempt. The committee’s recommendations are reported to
the House which discusses them and gives its own decision.
In this case, one Keshava Singh, a non- member, of the U.P. Assembly printed and published
a pamphlet. The Speaker of the U.P. Legislative Assembly reprimanded him for contempt
and breach of the privilege of the member Mr. Narsingh Naraina Pandey. On the same day,
Mr. Keshava Singh, who was present in the house, by his conduct, committed another
contempt in the house. The Speaker, thereupon, directed Mr. Keshava Singh to be admitted to
prison. A warrant was issued for his detention in the jail for 7 days and he was so detained.
Mr. Soloman, his advocate, moved under Section 491 CrPC37 read with Article 226,
a Habeas Corpus petition38 alleging that his detention in jail was illegal and mala fide
because he was not given an opportunity to defend himself. The petition was heard by 2
Judges of Allahabad High Court which granted interim bail to Keshava Singh and he was
released, pending the decision of the case on merit.
On this, the Assembly, by a resolution took the view that the 2 Judges, Mr. Keshava Singh,
and Mr. Soloman had committed Contempt of the Assembly and ordered that the Keshava
Singh be immediately taken into custody and the 2 Judges and the Advocate be brought in
custody before the House. At this, the 2 Judges and the Advocate, by separate petitions
37
Amit Singh, Indian Parliamentary Priviledges, https://indiankanoon.org/doc/74909
38
,
Ram Jethmalani, DS Chopra Parliamentary Privileges Law and Practice, p. 316
19
moved under 22639 the High Court, contended that the resolution amounted to contempt of
court and that it be set aside and its implementation be stayed by the interim order.
The petition was heard by the Full Bench of all the 28 Judges of the Allahabad High Court.
The court ordered the stay of implementation of the resolution. The assembly modified its
order and the warrant against the 2 Judges was withdraw, but they were asked to appear
before the House and explain their conduct. The Judges moved an application before the
Court against the modified order and the Court granted the stay against the implementation of
the later order.
At this stage, the President referred the matter to the Supreme Court, invoking the provisions
of Article 143(1), for obtaining its advisory opinion. The main questions referred to were-
1. Whether the legislature is the sole and exclusive Judge of its privileges and whether it
is competent to punish a person for its contempt taking place outside the Legislature?
2. Whether the High Court who entertained a petition of habeas corpus challenging the
validity of the detention of a person sentenced by the assembly under a general or
unspeaking warrant has committed contempt of the Legislature?
The Supreme Court by a majority of 6:1 held that the 2 Judges did not commit the contempt
of the house by issuing an interim bail order. The Court explained that the Court under
Article 226 had jurisdiction to order the release of a person from illegal detention.
The Court said that the courts in India could examine the validity of detention of a person,
sentenced by the Assembly, under a general or unspeaking warrant.
The Courts in England cannot examine the validity of the general warrant issued by the
House of Commons. Referring to this, the Court said that “such a right was not conferred on
Legislatures in India. The House of Commons is a part of the High Court of Parliament as a
superior Court and as a result, the general warrant issued by it cannot be subjected to scrutiny
by the other superior Courts. Legislatures in India never discharged any judicial functions and
their historical and constitutional background does not support the claim to be regarded as a
Court of record. Therefore, the very basis on which the Court in England treats a general
warrant issued by the House of Commons is absent in India.”
39
8th ed, M.P. Jain, Constitutional Law 126,
20
The question whether the privileges enjoyed by the Legislature under the latter part of Article
194(3) were subject to the provisions of Part III relating to fundamental rights, was left
undiscussed. However, the Court observed that such privileges were necessarily subject to
Article 21 and 22 of the Constitution.
CONCLUSION
The privileges are conferred on the members for smooth functioning of the parliament. But
these rights should always be in conformity with the fundamental right because they are our
representatives and work for our welfare. If the privileges are not in accordance with the
fundamental rights, then the very essence of democracy for the protection of the rights of the
citizen will be lost. It is the duty of the parliament not to violate any other rights which are
guaranteed by the constitution. The members should also use their privileges wisely without
making them corrupt. The parliament cannot adopt every privilege that is present in the house
of commons but should adopt only those privileges which accordingly suits our Indian
democracy.40
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 are not in the favour of general
interest of nation and public at large.
The Court has evolved the proper doctrine to determine the privileges of the parliament that
the Indian parliament can adopt. The Doctrine of Pen, Ink and Indian rubber
theory. In Hardwari Lal v. The Election Commission of India41 Court explained this
Doctrine. Justice Sabharwal made the following observation: “I am of the view that it is
essentially tautologies to first read something into the Constitution suggested on behalf of the
respondents, one is to first read the King, the Queen, the House of Lords or the Acts of
Attainder into the Constitution and thereafter to proceed to nullify them on the plain ground
that by the very nature of things they cannot form part of a Republican Constitution.”
underwent changes. Therefore, valuable as the American decisions are as showing how the
question is dealt with in sister Federal Constitution great care should be taken in applying
them in the interpretation of our Constitution.”
The National Commission to Review the Working of the Constitution (NCRWC) 43 has also
recommended in the report, submitted on March 31, 2002, that “The privileges of legislatures
should be defined and delimited for the free and independent functioning of Parliament and
State Legislatures.” It may thus be stated that the codification of privileges would strengthen
the rule of law.
BIBLIOGRAPHY:
I. BOOKS:
V.N. Shukla, Constitution of India, (Eastern book company, Lucknow, 13th edition, 2017)
M.P. Jain, Constitutional Law, (Lexis Nexis, 8th ed, 2018)
Constitution of India (Bare Acts)
43
National Commission to Review the Working of the Constitution (NCRWC) Report, 2016, Vol. 1
22
III. PAPERS:
Akhtar Ali Khan, Power, Privileges and Immunities of Parliament, Vol. 4, The Indian
Journal of Political Science
National Commission to Review the Working of the Constitution (NCRWC) Report,
2016, Vol. 1
Parliamentary Proceedings (protection of the publication) Act, 1977
National Security Act, 1980