indian parliament pic

Parliamentary Privileges- Loopholes And Benefits

Sagun Modi_JudicateMe

________________________________________________________________________________

This Blog is written by Sagun Modi from National Law University, OdishaEdited by Priyanjali Priyadarshini.

________________________________________________________________________________

INTRODUCTION

What are parliamentary privileges?

Parliamentary privileges are a certain kind of immunity provided to a parliamentarian when he/she is discharging his/her functions in an ongoing session of the parliament or when present in the parliament. These are special privileges that allow a member of the parliament or a member of a state legislature to conduct some acts which would otherwise be not allowed outside the parliament. In the words of the great constitutional theorist Sir Thomas Erskine May “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.” In layman’s terms even though the privilege is prescribed by a constitutional provision or lex loci, to a certain extent it’s an exemption from the general or normal law, which is available to everyone irrespective of their status background. These rights are not granted only to individual members but also extended to the houses as well.

I. Parliamentary privileges in India

In India, there exist two houses at the central level i.e. the Lok Sabha and the Rajya Sabha, and at the state level the legislative assemblies. Parliamentarians in India are given exceptional privileges as well. The concept of parliamentary privilege in India was borrowed from the British constitution and embedded in the constitution of India. It was often debated that the parliament is an institution of supremacy and the members of it used to represent the needs of the people. Therefore to restrict their rights as ordinary citizens would not serve the purpose of their representation of the people of its constituency. So as to uphold the supremacy and maximize the welfare of the general public the concept was accepted in India. Articles 105 and 194 of the Indian constitution mentions the powers, privileges, and immunity bestowed upon the members of the parliament and members of the state legislatures.

There are often benefits that have been synonymous with these powers and privileges. However, as times changed there were loopholes recognized in this system. Ergo there were both pros and cons to this concept and has been argued for decades by scholars, theorists, academicians, etc.

BENEFITS

Parliamentary privileges are somewhat a boon when it comes to express your feelings and opinions without the fear of breaking a rule or law. Parliamentarians are offered a bunch of privileges and in the words of Dr Ambedkar supported these privileges by mentioning that specific privileges are a necessity for the parliament to function in an efficient manner. The freedoms are enjoyed by the members individually and collectively.

A.    Right To Freedom Of Speech

Starting with the most important one is the right to freedom of speech. The right to freedom of speech is granted under article 19 of the constitution and is available to all citizens. However, there are some restrictions. Parliamentarians enjoy a different kind of freedom of speech in the house. They have so-called absolute freedom but subject to rules made under article 118 of the constitution. This special kind of freedom is granted so that members can speak fearlessly and present their opinion without any apprehension. Parliamentarians represent the people of their individual constituencies and are a voice of their needs and demands. To secure these needs they need adequately speak up for them without the fear of any liability or to be tried in a court of law. The agenda of this freedom is to provide a platform for a free and doughty debate and discussion without any liabilities so that efficient functioning takes place.

B.   Right To Prohibit The Publication Of Proceedings

In the parliament, often the discussions are of paramount importance involving the betterment and progress of the society. Issues about public policy, finances, economy, etc are discussed which are of national importance. Hence it’s essential that recordings of the house are made known to and published to the general public. This is because so that the society is aware of what’s going on in the parliament discussion. Hence if any member does publish the recordings or discussions he/she cannot be held liable for doing so.

C.     Right to exclude strangers

Members have the right to exclude strangers from the house. At times strangers are not a member of the parliament and hamper the discussion in the house. Free and fair discussion is quintessential in the house and it cannot be suffered because of strangers interfering in the house.

D.    The house has the right to punish members/outsiders for breach of privilege

There are instances where members breach the privileges provided to them. At times members or outsiders end up doing acts in the parliament that are morally wrong and even illegal. Members often take the immunity of parliamentary privileges when they do something wrong. This leads to unfair blaming and hampers the fair discussion in the house. The right to punish for breach is defined to be a “keystone of parliamentary privilege” without which the parliament would suffer contempt and breach of its authority. This right safeguards and maintains the legitimacy of the house.

LOOPHOLES

Parliamentary privileges were formed with the intention to give members the power to address the concerns of the public and have fearless debates. However, there were some loopholes in these privileges. The most important loophole was the non-codification of privileges and because of this excessive use of the privileges by members.

A.   Non-codification of privileges

The powers given to the members of the parliament have been seen to be excessive and supreme. These privileges are not in balance with the fundamental rights provided to the citizens. There always this question if the fundamental rights control the parliamentary privileges or not. The non-codification gives the members unlimited powers like to be a judge in their own cases, regulate and preside over their proceedings, etc. This is clearly against the fundamental practice of natural justice as there is bias and members tend to favor themselves. The members are exempted from civil arrest during an ongoing session of the house and 40 days before and after a session. The non-codification has allowed no judicial scrutiny of the decisions made by the parliament meaning even if a decision is arbitrary it cannot be questioned in a court of law. Since no judicial review can be done, it goes against the powers of constitutionalism as courts cannot interfere. This hampers the idea of democracy as the judiciary protects the constitutional principles but the conduct of the members doesn’t come under the scope of judicial review. This one of the major loopholes identified in the parliamentary privileges and nothing has been done so far to improvise upon it.

B.   The freedom from arrest and appearing as a witness

Parliamentarians are exempted from civil arrest and from criminal arrest in some cases. They enjoy this freedom 40 days before and after the adjournment of the house and during the session of the house. Often the members take this as an excuse so that they don’t have to face a trial or an arrest. The members are also given the freedom from appearing as witnesses during an ongoing session of the house. They are given plenty amount of freedom to function when in the house and the court cannot enforce a writ against them to appear in court or as a witness as the privileges aren’t codified.

C.   Parliamentary privileges preferred over the right to speech

There is no balance between parliamentary privilege and the right to speech and the privilege is often used to stifle the democratic voices. Since there is no control over the privileges, the right to speech will often be misused taking the protection under article 105 of the constitution. Elected members use their privileges to engage in unnecessary debates and also try to stifle the country’s democratic voices. In 1958 in the case of Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha, the Supreme Court held that articles 105 and 194 of the Indian constitution are special provisions and would trump over article 19(1)(a). Since no judicial review can take place, it’s clear that the right to speech can be suppressed in the name of parliamentary privileges.

STATUTORY PROVISIONS

II. Articles and acts related to parliamentary privileges

1)    Article 105 of the Indian Constitution [1]

“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 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.”

2)    Article 194 of the Indian Constitution [2]

“Powers, privileges, etc, of the House of Legislatures 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 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, 1[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.”

3)    Article 118(1) of the Indian Constitution [3]

1. “Each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business.”

4)    The Parliamentary Proceedings (Protection of Publication) Act, 1977

Since members are allowed to publish the recordings of the parliamentary proceedings to the general public, an act was formed to exempt members from any liability from publishing any proceedings or reports. It also punishes publications that are done in malice.

1. “Section 3 (1) of the act-no person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament, unless the publication is proved to have been made with malice.”

CASES

1. Algaapuram R. Mohanraj v Tamil Nadu Legislative Assembly

In this case some of the members of the T.N assembly were suspended on the grounds of unruly conduct. A privilege committee was setup to check their breach of the privileges. Their salaries were discontinued and other benefits as well. The members filed a writ petition in the Supreme Court arguing that their rights have been violated under article 14 of the constitution. The court mentioned that the freedom of speech of a member of parliament is different to a citizen.  It favored the case to the members stating that article 14 of the constitution has been violated and restored their salaries and other benefits.

2. Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha [4]

In this case, a member of the state legislature spoke ill about some other member in an ongoing session of the house. The petitioner filed a case stating that the member doesn’t have a right to pass a statement that questions the authority of a minister. The respondent took the defense that the members of the state legislature enjoy all powers and privileges under article 194 of the constitution similar to that of the House of Commons. The court ruled in favor of the respondent stating that the freedoms are enjoyed under article 194 and were not subject to the fundamental right under Article 19(1)(a).

3. Tej Kiran Jain And Others v. N. Sanjiva Reddy [5]

The appellants of the case were devotees and followers of Jagadguru Shankaracharya of Gover, in a world Hindu religious conference in 1969. The respondent had a furious discussion on this conference and passed a few comments on a deity, which affected the sentiments of the appellants. The appellants sued for defamation. However, the court held that it won’t be defamation because article 105 of the constitution provides the powers to a member of freedom of speech.

ANALYSIS

It’s observed that parliamentary privileges are both a boon and bane. The privileges were borrowed from the British constitution but they weren’t codified. As time passed by there were some serious cases that appeared in front of the British courts relating to the misuse of the powers and privileges. Thereafter the British made amends to it and codified those privileges. However, this isn’t the scenario in the Indian context. The parliamentary privileges in India haven’t been codified yet and no attempt has been made so far to do the same.

There exist some privileges which are genuine and indirectly try to secure the needs of the masses. Privileges like the publication of recordings ensure that there is nothing to hide from the general public or the right to freedom of speech which allows them to be the voice of the people.

However, there were some identified loopholes, which question the privileges and bring them under scrutiny. Members tend to misuse the powers given to them and exercise arbitrary actions under the ambit of parliamentary privileges. There is no balance between parliamentary autonomy and the right to freedom of speech. Allegations and blatantly blames are put on each other and there is no formal process to deal with the breaches of the privileges. Since the members and the houses think that the interference of the court will degrade its independence, no judicial review or action lies against them.

This is a huge concern that needs to be addressed and to some extent, codification would help.

CONCLUSION

The intention of the introduction of parliamentary privileges in India was to achieve smooth functioning of the parliament. The goal to introduce them has been achieved to some extent and even today some members of the parliament exercise this function in a fair and reasonable manner. However, members have tried to take undue advantage and misused these privileges for their own vested motives. If the privileges are not in accordance with the fundamental rights then the very essence of democracy is under a threat. Hence it’s the duty of the parliament and its members to use the privileges in a wise manner keeping in mind the welfare of the people and the fabric of the democracy of India.

REFERENCES

[1] Indian Constitution, Art 105.

[2] Indian Constitution, Art 194.

[3] Indian Constitution, Art 118.

[4] Pandit M. S. M. Sharma v Shri Sri Krishna Sinha 1958 AIR 395 (SC).

[5] Tej Kiran Jain And Others v N. Sanjiva Reddy 1970 AIR 1573 (SC).

[6] Arora, K. (2020, October 27). Legislative privileges: The exercise of indefinite powers to curtail the voice of democracy. Bar and Bench – Indian Legal news | Supreme Court Judgments, High Court Updates, Indian Law Firm News, Law School News, Legal News in India – barandbench.com. https://www.barandbench.com/apprentice-lawyer/legislative-privileges-the-exercise-of-indefinite-powers-to-curtail-the-voice-of-democracy

[7] Jain, D. (1967). JUDICIAL REVIEW OF PARLIAMENTARY PRIVILEGES: FUNCTIONAL RELATIONSHIP OF COURTS AND LEGISLATURES IN INDIA. Journal of the Indian Law Institute, 9(2), 205-222. Retrieved February 17, 2021, from http://www.jstor.org/stable/43949934.

[8] Sheetal.s. (2020, October 13). Parliamentary privileges and immunities. iPleaders. https://blog.ipleaders.in/parliamentary-privileges-india

[9] What are the parliamentary privileges in India? (2019, February 1). Jagranjosh.com. https://www.jagranjosh.com/general-knowledge/parliamentary-privileges-in-india-1548994252-1

Leave a Comment