This article is written by Akash R. Goswami, student of the faculty of law, Aligarh Muslim University. In this article, he has discussed the Parliament Privileges in India, its types, freedom of speech with respect to Parliament and other aspects of Parliamentary privilege in Indian Parliament.

Introduction

The privilege may be defined as an exceptional right and exemption. The expression “Privilege and Immunity”, under the Constitution of India and in the arena of Parliament, donates certain special and exceptional rights of Lok Sabha and Rajya Sabha or its individual members who are generally accepted as a necessity for the implementation of constitutional functions.

In the case of Raja Ram Pal vs. The Hon’ble Speaker Lok Sabha[1]. Supreme Court in their own view defines the word “privilege” that it is immunity or a right provided to the specific person. In another way around what a person can not do in general, now he/she eligible to do a certain act.

For example, being an Attorney General you have the right to watch any proceeding of any house, but not in the case of an ordinary person. Privilege consists of the known laws, customs and usage of Parliament. Thus, the term privilege is referred to as the special rights that are available to a different extent and in various forms for the members of Parliament throughout the world. However, the term applies to certain immunities enjoyed by both the houses of the Parliament collectively, and members of each house individually.

It is the privilege conferred on any member of parliament that he is immune from whatever he will say on the floor of the house, and in case of detention whether in civil or criminal, no member shall be made liable and detained 40 days before and 40 days after the session of the house. But there is a condition to comply with the availment of these privileges. If a person ceased to be a member of Parliament, then the privileges are called off. So in order to enjoy immunities, one should have to be a member of any house of Parliament.

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Who Enjoys Parliamentary Privileges

Sir Thomas Erskine define the expression “Parliamentary Privilege” as the total sum of the specific rights enjoyed by each House of Parliament collectively is a constituent part of Parliament,  and by the members of every house of Parliament one by one, without which they could not proceed with their functions, and which exceed those possessed by different bodies and people.

The privileges only given to the members of the Parliament, and also conferred on the person who actively participates in any of the committee and in the function of the parliament, just like it incorporates on Attorney General and union ministers but in case of President, even though he is a part of Parliament, does not entrust with parliamentary privileges.

Article 105

Privileges, power, right etc for the two houses of Parliament individually and of the members and committees thereof-

1. Comes under the concern in the provisions of the constitution and the rules, regulations and standing circulations which mandates procedure and conduct of Parliament, and it shall be necessary that freedom of speech in every house of parliament provided without any checks and balances. As if there is restriction then the representative will hesitate to express their feelings, which is not the aim of the Democratic form of Government. 
2. No member of the Parliament should be made liable for any proceeding initiated against him in the court in respect of anything said, vote which was given by him or any committee thereof, and no person should be made liable in context to the publication by him or under any authority empowered by either house of Parliament of any report, vote, proceeding or paper.
3. In another sense, the privileges immunity and power of each of the two houses of Parliament and of its members and committees thereof, shall be such as may define time to time and provide by the Parliament itself and through established procedure by law, and, until so defined shall be a matter of concern for those of that house and of members of that house and for its committees immediately before the date of initiation of section 15 of the constitution by the (forty four amendment) act, 1978.
4. The above mentioned constitutional provisions of clauses (1),(2) and (3) shall apply in relation to the person who by virtue has the right to freedom of speech, and otherwise to take part in proceedings of the Parliament of any of its committee thereof, the clauses will apply in relation to the Parliament.

Article 194

1. This subject comes under the provisions of the constitution and rules, regulations and standing orders which regulates the procedure of the State Legislature, and there shall be freedom of speech for the member of the legislature in every state.
2. No member of the state legislature shall be compelled for any proceeding initiated against him in any court of law in regards to anything utter or any vote given by him or her in the state legislature and any of its committee thereof, and no person shall be made liable to prosecute in the context of the publication by him or under any authority of a house of state legislature of any paper, vote, report, or proceedings.
3. In another sense, the privileges and immunities of the house of the state legislature, and of its members and the committees of the house os state legislature shall be such as may be defined by the state legislature from time to time through established procedure of law, and, until so define, shall be the subject matter to those of that house and of its member and its committee thereof, immediately before the section of 26 of the constitution by the (forty four amendment) act,1978.
4. Above given constitutional provisions of clauses 1,2 and 3 shall apply in relation to the person who by virtue of this constitution has the right to freedom of speech, and the other way around to take part in the proceedings of the house of the state legislature and any of its committee thereof as they pertain in relation to members of the state legislature.

It was observed from the above two articles of the Indian Constitution that the position of the house of the Parliament is identical to the position of the state legislature. Therefore, Article 105 apply, mutatis mutandis, to the state legislate as well.

Types of Parliament Privileges

Collectively enjoyed by the member of Parliament

• No person whether a member or a stranger can be arrested and no legal proceedings can be initiated against him either criminal or civil, within the premises of the house of the Parliament and without the approval of the proceedings officer of that particular house.
• No court shall have the right to investigate the proceedings of any house of the parliament and any of its committees.
• Parliament shall have the power to exclude guests or visitors from the meeting of the house or also have the power to conduct a secret meeting if the matters of national importance or any matter of public importance.
• Parliament shall have the right to penalize its member or an outsider for committing the breach of its privileges. And for contempt by reprimand, admonition or imprisonment and also have the right to expel and suspend in case of a member.

Individually enjoyed by the member of Parliament 

• When a parliament is in session, a member of Parliament or a person on whom this right and immunities conferred may refuse to appear in the court of law or to present any evidence in court.
• Members of the Parliament cannot be arrested when the sitting of the Parliament in session and 40 days before the commencement and 40days after the end of the session.
• No member shall be made liable to any proceeding in any court for whatever he or she said or any vote was given by him or her during the session in the Parliament or its committees.

Freedom of Speech

The spirit of the parliamentary form of democracy is frank free and valiant discussions in the house of the parliament. For the authority like parliament freedom of speech plays a very indispensable role that provides opportunities to the members of the houses to express their feelings without any sort of fear, hesitation, being penalized for offences such as defamation, innuendo, etc.. The recognition of the right to freedom of speech in parliament came to known in the seventeenth century in the case of SirJohn Elito.

The council of state i.e. Rajya Sabha in its XII report provides that a Parliament can be asked a question in any court of law or any place outside the parliament for making any disclosure or for any information display since it will amount to inference with the right to freedom of speech of that member. Subsequently, Lok Sabha has also propounded that it will amount to contempt of house or breach of privilege if any suit is initiated against any member in a court of law for what he/she spoke on the floor of the house.

The Supreme court case of Tej Kiran Jain V. Sanjeeva Reddy held that “once it is recognised that the parliament was in session and its business being transacted, anything said during the clause of that transaction was completely immune from any proceeding in any court of law”.

Article 105, clause (1), expressly protects the right to freedom of speech in Parliament. It provides that there shall be complete freedom of speech in Parliament. Clause (2), further states that no member of each house of the Parliament shall be made liable for any proceedings in any court of law in regards to anything said or any vote given by him or her in parliament or any committee of parliament.

No action is initiated against the member, for the offence of defamation or in the context of words said in Parliament or its committees, neither civil nor criminal. No imprisonment is there for the mere spoken words by the immunity, it extends to votes, as clause (2) specifically provides that any vote given by him/her in parliament or committee thereof. Though it can be concluded that, the freedom of speech shall extend to other conducts which are done and having a nexus with proceedings of each house, such as, for notice of questions, motions, reports of committee and the resolutions.

It is important to consider that clause (1) of article 105 comes under the subject to the provisions of the constitution and to the standing orders and rules for the regulation and procedures of the Parliament. The word regulation for the procedure of Parliament comes in clause (1) should be read in that manner so that it applies to provisions of both i.e constitution and the rules and standing orders and circulations.

Freedom of speech in parliament becomes concern matter with provisions of the constitution relating to the procedure and regulation of the Parliament i.e subject to the article envisaged in part V contain article 107 and 121. Thus, for instance, freedom of speech in Parliament would not allow a member to talk about conduct and manner of any judge of the high court or Supreme Court. Likewise, the freedom of speech comes under the subject to the procedure or rules of the house, such as the use of unparliamentary conduct and unparliamentary language.

The freedom of speech described under article 105 (1) having a peculiar interest and different from that right which a citizen enjoys as a fundamental right provided under Article 19 (1) (a). The fundamental right, freedom of speech, does have the power to protect an individual completely for what he says. The right has come under clause (2) which is subject to reasonable restrictions of article 19 of the constitution. The term freedom of speech which used for article 105(1) provides that no member of Parliament shall be made liable to any proceedings initiated against him, whether civil or criminal, in any court of law and for the statement made in house while debating in either house of Parliament or any committee thereof.

The freedom of speech provided under article 105 cannot, therefore subject to reasonable restriction likewise it is imposed in article 19 (2). Clause (1) and (2) of Article 105 gives protection to the member of Parliament for what is said within the boundaries of Parliament and not what a member of Parliament may say outside. Similarly, if a member publishes his speech outside the boundaries of Parliament, he will be made liable if the speech found to be defamatory in regards to some person.

The freedom of speech given under article 105 (1) and (2) refers, shall be only available to the member of the Parliament when the session of the Parliament is going on. Therefore, if an order of detention, which refrains a member from attending a session of the Parliament (no occasion shall be raised to said that the right has been invalidly annexed. 

Article 105 (2) confers privileges, in respect of anything said on the floor of the Parliament. The word “anything” is considered as the widest concept and it is parallel to as a whole. The only restriction arises from the word in the Parliament, which means during the session of Parliament and in the course in the transaction of the Parliament. Once it was proved that Parliament was in session and its business was carried out, anything uttered during the course of that business was completely immune from proceedings initiated against the member in any court. This immunity is not absolute but works with respect to the Parliament.

It is one of the alluring features of the parliamentary form of government that the people’s chosen representative should be free to express themselves and their views without any fear of intimidation or any legal consequences. What they said comes only under the purview of the discipline and regulation of the Parliament, the good conduct of the members and the control of the proceedings by the presiding officer. The court has no right to say and interfere in the matter of the Parliament and should really have none.

In a controversial case involving former Prime Minister, several union ministers, members of parliament and others, the court held in the case P.V. Narsimha Rao V. state JMM Bribery[] that the privilege of immunity to exempt the member from the court proceedings in article 105 (2) should be extended to cover the scope of bribes considered by the member of parliament for the purpose of voting in the parliament in a particular form.

The three judges of supreme court did not consider the decision to be right which was given by two judges and explained the expression “in the context of” regarding article 105(2) shall be provided a wide meaning so as to understand an act having a series of chain or connection with the speech or a vote submitted by a member in the parliament or any committee thereof. If interpreted, it would cover within its core, acceptance of a bribe by the member of parliament, further extending to make a speech or to cast his/her vote in parliament or any committee in a particular way.

In this manner, the fix taker MPs, who had cast their vote in parliament against no-confidence motion were held qualified for the security of Article 105(2) and were not answerable in court for supposed conspiracy and agreement. The Court additionally held that the bribe-taker MP, who did not decide on the no-confidence motion was not qualified for protection under Article 105(2).

To the pay off supplier MPs, it was held, the protection under Article 105(2) was not accessible. The court additionally decided that the Lok Sabha could make a move for breach of benefits or disdain against the alleged bribe providers and against the bribe-takers, regardless of whether they were a member of parliament.

The court was anonymously said that the member of parliament who takes a bribe, or who gives bribe but he/she does not have to participate in the voting could not claim the privileges conferred upon them from court proceedings under Article 105 (2). The decision of the Apex court has imploded so much attention of the general public and dissatisfaction among that the review petition is pending in the court.  

Some limitations are also there which should be followed in relation to claim privileges

• Freedom of speech should be according to the constitutional provisions and subject to the procedures and rules of the parliament, provided under article 118 of the Indian constitution.
• Article 121 of the Indian constitution confers that, the member of the Parliament is not allowed to discuss the manner and the judgement given by the judges of the supreme court and the high court. But, even if this occurs, it is an internal matter of the parliament and the court has no right to interfere in it.
• No immunity and right could be claimed and held back by the members for anything which is said outside the proceedings and premises of the parliament.

Right of Publication of Proceedings

Clause (2) of Article 105 (and article 194) expressly provides that “no person shall be compelled to made liable in regards to the publication by him or by under the authority of either house of the parliament for any report, paper, journal, vote or proceedings”.

Therefore, the protection did not address the scope of publication made by the person without the authority of any house of the parliament, however, Common law renders the defence of qualified privilege for fare and exact official reports of proceedings of the parliament, published in a newspaper or as here.

In Wason v. Walter C.J. Cockburn, observed that it was of public sovereignty and comes under the subject to national importance that parliamentary proceedings should be communicated and displayed to the general public, which has an immense interest in knowing was happening in parliament. But to provide an incomplete report or a detach report which contain disconnected part and partial information of proceedings published with the intention to injure individual character will be disentitled to protection. A similar law is also applicable in India.

The Parliamentary Proceedings (protection of publication) Act, 1956 provides that “not a single person shall be compelled for any proceedings initiated against him, either civil or criminal, regarding the publication of the proceedings, in any court of law, for a substantially true journal and report of the proceedings of either house of the parliament until or unless it has been proven that the publication was made with malice intention”. Later the act was deleted during the time of emergency in 1975.

Article 361-A provides that “protection of publication of proceedings of parliament and state legislature” under clause (1) of this article empowers that no person shall be made liable to any proceedings initiated against him, either civil or criminal in any court in regards to the publication made by him in any newspaper of a substantially true report of any proceedings of any house of parliament or the state legislature assembly, or as the case may be, unless the publication made by the member is proven to have been made with the malafide intention.

Moreover, it is also provided that notwithstanding under this clause shall be complied with the publication of any report, paper, vote or proceedings and securely held session of the parliament or as same as the case in the state legislature. Clause (2) provides that clause (1) will apply in relation to the right of publication of reports and protects it broadcast, not detached part of any proceeding of parliament through wireless technology, and part or any service which will broadcast by the member in any platform or station. And insense of agency, it should be viewed as the agency who have reported material to be published. It is further stated in this article, the newspaper includes a news agency which contains report material to be published in a newspaper.

Other privileges 

Clause (3) of article 105, after some constitutional amendment declares that the immunity and right of every house of the parliament, its members and committees shall be such as furnished by parliament from time to time and until it is done by the parliament, which it has not yet been done, shall be dated back on 20th June 1979 i.e from date of initiation of section 15 of the (44th constitutional amendment) act, 1978.

Before this amendment, clause (3) provided that the parliament gives the immunity of each house and its members shall be similar as the house of commons in England at the time of commencement of the constitution. This position till 20th June 1979 was in use and apply in relation to the earlier provision, it is still relevant to depend on the laws as it has been denoted to the English laws. A form that views it may be concluded that there are some privileges that may not be claimed by the parliament of India.

For example, the immunities for access to the sovereign, which is carried by the House of Commons trough it presiding officer to have all the time access for that particular right to the sovereign through their chosen representative can have no value in India. Similarly, a general warrant of arrest given by the parliament of India can not subject to be regarded as a court of record at all in any sense.

Also, the right of the two houses of the parliament, unlike the immunities of the house of commons and house of lords in England are completely identical. To every house of parliament, accordingly, entrusted the right, which is empowered by the House of Commons in the United Kingdom.

Freedom from arrest

It given under this right, no member of parliament or state legislative assembly shall be arrested or detained for civil proceedings initiated against him during a period of 40 days before and 40day after the session of the house. If a member is imprisoned during this period, he should be set free so that he may be able to attend the session of the house.

This immunity does not cover the circumference of arrest or imprisonment on a criminal charge or contempt of court or in preventive detention act. However, in case if a member is arrested, rule 261 of Lok sabha set forth the duties of the detaining body to provide information to the house to which the member belongs to, also provide the reason for his/her arrest or detention, also specified the time of his/her arrest, the place where he will be confined or imprisoned and the period how long that particular member will be detained or arrested.

It has been observed in case of K. Anandan Nambiar V. chief secretary governor of madras that the matter of the parliament does not enjoy any special or specific status as compared to an ordinary citizen of this country in regards to legally fair orders issued for detention purposes.

Freedom from appearing like a witness

The member of the parliament has the special right conferred on them which enables them to not attending court as a witness. They are provided complete right to attend the meetings of the house and perform their duties without any interference while exercising their duties from the court.

Right to regulate internal affairs

The house has the special right to manage and control its own proceedings. The governor has entrusted with the power to call the session of the legislature of the state. But the governor does not have any constitutional right to give orders to the presiding officer about the manner and conduct in which the proceedings of the house should be carried out.

The transaction of the business carried out in the house should be followed according to the rules of the parliament, which are provided by the house itself. In order to strengthen this right, Article 122 (in case of state legislative assembly) expressly provides that the constitutional value or any proceedings shall not be called in question on the ground of any alleged irregularity of procedure or no officer or member of parliament in whom these powers are conferred by virtue of the constitution for mandating the procedure or the conduct for the business transacted out in the parliament or for maintaining orders in parliament shall become under the subject to the jurisdiction of any court in respect of the power empowered by him.

Right to exclude strangers

The right to exclude visitors or strangers or non-members and held a secret session was a tradition of the house. The objective behind this to avoid the act of threatening the member as the visitor may attempt from galleries to interfere in the debate going on.

Rule 248 of the Lok sabha grant the power to the presiding officer, whenever he deems fit, of order to exclude strangers from any part of the house and when the house conducts the secret meeting no guest or non-member is allowed to present the house, lobby or galleries of the house. The only exception and the member of the council of states and the person authorized by the presiding officer should be present.

Parliamentary privileges and fundamental right

In the case Gunupati Keshavram Reddy V. Nafisul Hasan, the home minister was detained at his Bombay residence under the warrant directed by the presiding officer of the U.P legislative assembly for the contempt of the house of the state legislature and was fled to Lucknow and was house arrest in a hotel under the supervision of the presiding officer. While filling for a writ of habeas corpus on that very that his detention was infringed and violates the article 22(2), the Apex court quashed the detention and gave orders for his release as he had not been produced before a magistrate within 24 hours of his arrest as given under Article 22.

This decision, therefore, provides that article 194 (or 105) came under the subject to the fundamental right guaranteed under Article 22(2) in part III in the constitution of India. 

However, in case M.S.M. Sharma V. S.K. Sinah[], it was struggled by the appellant that the immunities conferred on the house under article 194 are subject to the provision of a fundamental right which is envisaged in part III of the constitution. In favour of his allegation, the petitioner relied on the supreme court’s decision given in the case Ganapati Keshavram reddy V. Nafisul Hassan.

But, in M.S.M. Sharam’s case, the Supreme Court held that in case of dispute between Fundamental right under Article 19(1)(a) and the immunities conferred under article 194(3), in that situation fundamental right always occupy the place of superiority and will prevail over the privileges conferred on the parliament and its members, committee thereof. As in the context of article 21, on the facts, the court did not find any infringement of fundamental rights.

Under article 143, the supreme court enlarged the proposition laid down in the M.S.M. Sharma case held that:

We are not in the opinion that it would be correct to read the majority judgment as laying down the general idea that whenever there condition of imbalance between the provision of part V of article 194(3) and any provision of the fundamental right conferred by the part III, the fundamental right will also remain supreme over the other. The unanimous decision, therefore, has to be taken to settle only that article 19(1)(a) would not apply and article 21 would prevail.

There is a rule that every house provides for a committee of privileges. In case of breach of privilege or contempt of the house is in the question, is referred to the committee of privileges. The committee shall have the power to summon or gives direction to call the members or stranger before it. Refusal to present in front of the house or to answer or knowingly gives the misleading statements is itself considered as the contempt of the house. The committee’s recommendations are given to the house which discusses them and their conduct and regarding to this give their decision.

Parliamentary privileges and law courts   

There is one more cornerstone to be achieved by the judiciary. The dispute between the legislative privileges of the houses and the court of the law came to be resolved by the supreme court of India  in the reference case, which is popularly known as the Keshav Singh’s case[] or U.P. Assembly case.

In this case, one person named Keshav Singh who was not a member of U.P. Assembly, published, circulate and printed a pamphlet. The presiding officer of the U.P. Legislative Assembly admonish him for the contempt of the house and committing the breach of the privilege of the member Mr Narsingh Narain Panday. On the same day, Mr Keshav Singh, who was present in the house, by his delinquent act, committed another contempt in the house. The speaker after that, given an order that Mr Keshav Singh should be detained and put behind the bars. A warrant was issued in this regard for his detention in jail for a period of 7 days and he was confined. 

Mr. Soloman, his council, filed a writ petition under section 491 of Cr.P.C. along with article 226, a Habeas Corpus petition coupled and alleged that his detention in jail was illegal, unjust and lack of legal merit because he was not given an opportunity to defend himself and there was an infringement of natural justice in other word is was an ex-parte decision. The petition was taken under consideration by two judges of Allahabad high court which gave the order to grant the interim bail to Keshav Singh and after that he was released. But the decision of the case was pending and would be decided on the merits and evidence provided in the case.

On the judgement given by Allahabad high court, the state assembly, by a resolution took the decision that the two judges, Mr Keshav Singh, and Mr Soloman have committed contempt of the house and order that the Keshav Singh must be immediately taken back into the jail and the two judges and the council of Mr Keshav also brought into custody before the house.

At this, the two judges and the advocate, by means of separate petitions lodged and move to the high court, under article 226 (which empowers the High Court to issue writ) contended that the resolution appeared to be the content of court at the very first sight and it should be set aside and its implementation would be stayed by temporary order.

The petition was considered by the full bench of all the 28 judges of the Allahabad high court. Later court gives the order to grant the stay for the implementation of that resolution. The Assembly after that brings some modification in its order and the warrant against the two judges which was initiated by the house was withdrawn, but the house asked the judges to summon before it and explain their conduct. The judges on that write an application and moved before the court against the modify order of house and the court again granted the stay for the implementation of the order.

At this point, the President refer this matter to the supreme court, invoking the provisions of Article 143(1), for using its advisory power, which provides that in the matter of law if any question is unanswered and he needs to seek advice then in that case he can rely on the judges of article supreme court and the high court. The main questions arose to be were-

1. Whether the state legislature is the sole and exclusive judge of its privileges and whether the legislature is competent enough to punish a person for its contempt even outside of the legislature?
2. Another question was whether the high court who consider the petition of habeas corpus challenging the validity of the detention of a person given by the legislative assembly under a general or unspeaking warrant has committed contempt of the house?

The supreme court given the judgment and express their support with a great sense of majority as in ration of 6:1 and held said that two judges did not commit contempt of house, as under article 226, which empower every high court of India to issue the and adjudicating the writ petitions. And the court has the power to investigate and have a preview of judicial review to check whether the detention of that particular person is legal or not.

The Judges further said that in India The Court shall have the power to check the detention and in that context, they have an option for judicial review to determine the question of the detention valid or order of detention by state legislative assembly, under the general or unspeaking warrant. 

When we refer to Courts in England, in their case Court are not allowed to reconsider the judgement moreover, they don’t have judicial review power to check the validity and legality about the general warrant issued by the House of Commons. On this condition Court further said “ in that manner such a right will not be entrusted with legislature of India, as house of commons is an internal part of High Court, and parliament being superior there and also due to its influential nature, the general warrant issued by the house will not become under the subject of judicial review, By the other courts.

But in India the condition was different, the history and background of the legislature of India had no significance of judicial function and does not claim to be regarded as a Court of record at all”. There it can be concluded that the privilege enjoyed by the House of Commons is not applicable in the context of Indian legislature.  

Article 226 entrusted every High Court of India, in the matter of issuing the writ petition of habeas corpus against any State authority or institution which under Article 12 included the Legislature.

Article 121 of the Indian constitution provides that, the member of the state legislative assembly is not allowed to talk about the manner and conduct of any judge of the Supreme Court and the High Court, but if they do then, in that case, the Court has no right in there matter to interfere.

The court also provides that there is hardly any doubt about, that Parliament is the sole and exclusive judge in the matter of privilege and this fact will not be distorted and not be in dispute, also it could found in Article 194(3). But the main question is in the concern and had implored great attention that whether the privilege claimed by the house of Parliament was provided by Article 194(3) or not, this question was still to be determined by the Court.

The question whether the immunities enjoyed by the Legislature provided under the part of Article 194(3) was subject some restriction in respect of Part III relating to fundamental rights, was left unanswered, however, the tussle is going to resolve. And the Court observed that such privileges were necessarily subject to Article 21 and 22 regarded as fundamental right provided in the Indian Constitution.

Breach of privileges

When any individual or authority does not recognize and attacks on any of the privileges, rights, and immunities, either of the Members individually or of the House in its collective capacity the offence is called the breach of privileges and is punishable by as per the House rules and regulations. Besides breaches of particular privileges, actions must be taken in regards to the nature of offences against the authority or dignity of the House or in other words contempt of the house, such as disrespect to its legitimate orders upon itself, its members or officers, are also subject to punishment as it regarded as contempt of the House. 

Contempt of the House shall be defined generally as “any conduct or negligence which obstructs or bring inconvenience either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the exercise of his duty, or which has a capacity, directly or indirectly, to produce such results.” It may be stated that it is not possible to describe exhaustively every act which might be considered by the House as contempt of the House. The House may punish a person who is found to be indulged in breach of privilege or contempt of the House either by reprimand or admonition or by imprisonment for a specified period of time.

In the case of its own members, two types of punishment can be given by the House, namely, suspension from the duties of the House and expulsion. The penal jurisdiction of the House is neither confined to its own members nor to its officers, but enlarged to all contempts of the House, whether committed by members or by persons who are not members, irrespective of the fact that the offence is committed within the House or beyond its premises. The power of the House to punish any person who commits a contempt of the House or a breach of any of its members privileges is the “keystone” of Parliamentary privilege.

It is the power that gives effect to the privileges of Parliament and pertain its supreme character so far as the protection of its rights and the maintenance of its dignity and authority are concerned. The power exercised by each House of Parliament and the House of the State Legislature to punish the person for contempt or breach of privilege is a general power of committing for contempt analogous to that likewise by the Superior Courts and is in its discretionary nature. It flows from the provisions given under Article 105(3) of the Constitution as affirmed by the Supreme Court in the case of Rajaram Pal & Ors. Vs. UOI & Ors[10].

Norms of punishment for breach of privilege or contempt of the House may impose the following punishments on a person found to be guilty of breach of privilege or contempt of the House. 

(1) Imprisonment: The period for which the House can direct an offender to prison for contempt or breach of its privileges is limited by the duration of the session of the House. As soon as the House discontinues its session the prisoner is set free. There are a number of cases where the audience shouted slogans and threw leaflets from the visitor’s gallery on the floor of the House, the offenders were sent to prison for committing contempt of the House by creating disorder in the public Galleries.

(2) Admonition or reprimand: In cases where the offence of breach of privilege or contempt is not so serious like petty the warrant for the imprisonment of the offender by way of punishment the person concerned may be summoned to the Bar of the House and admonished or reprimanded by the presiding officer by order of the House. The admonition is the mildest form of punishment, whereas reprimand is the more serious remark of the displeasure of the House.

(3) In the case of its own members, two other punishments are also available to the House by which it can express its displeasure more strongly rather by admonition or reprimand, namely: 

             (i) Suspension from the service.

             (ii) Expulsion from the House

 The penalization powers of the House for committing a breach of privilege or contempt of the House are, however, exercised only in extreme cases where a deliberate attempt is made to disturb the house of Parliament to show disrespect and further in order to depict the institution has lost the public confidence. It is also a tradition of the House that unqualified and unconditional regrets sincerely expressed by the persons guilty of breach of privilege and contempt of the House can be accepted by the House. And the House normally decides in such cases to best consult its own dignity by providing no further notice of the matter. 

Contempt of court

There are no codified rules which clearly state what action constitutes a breach and what punishment is granted. Although, there are several acts which are considered by the house as the contempt. It is generally viewed as the actions which intended to obstruct the proceedings of the house and produce a disturbance for the members. 

Some of them are briefly discussed.

Giving misleading statement in the house

The acts which are done only with the purpose to mislead and intended to deceive are considered as a contempt of the house. If the statement is uttered by a person who believes the information to be true then there is no breach violated. It has to be proven that the statement recorded by him/her deliberately with the intention to mislead the house.

Disturbance by outsiders

Any conduct of disturbance created by chanting slogans or throwing leaflets etc. with the purpose of disturbing the procedure and functioning of the house are regarded as the major contempt of the house. The person who commits shall be confined by the house for a specific period of time or an alert is given depending on the sincerity of the case.

Assault on members

The privilege is provided when the member is performing his duties. An assault was done by any person on the member of parliament when he discharged his responsibilities is dealt as contempt of the house.

Writings or speeches defining the personality of members

Any speech published, advertised or libel made against the character of any member also regarded as the contempt of the house. These are ascertained to be necessary because it affects the confidence of people for their representative and role of the member by diminishing the respect for him.

It is, clearly inferred that any attack on the immunity of the members by any intend is considered as a violation of the rights and the parliament can take action concerning the same

Punishment

1. Imprisonment – If the breach of immunities committed is of a heinous nature, punishment can be given in the form of detention or imprisonment to any of the member or the person liable to it.
2. Enforcing fine – If in the perspective of the house, the violation or contempt committed is of economic misdeed and any pecuniary profit has been made from that breach then, the parliament can impose fines on the person.
3. Prosecuting the offenders – The parliament has the power to prosecute the member or an outsider if anyone committing the breach.
4. The punishments are given to its own members – If any contempt is committed by the members of the parliament then he has to face penal consequences initiated by the house itself which could also affect in the interruption of the privileges of the member from the house.

Freedom of the press and the parliamentary privileges

The parliamentary privileges restrict the freedom of the press, which is a fundamental right. Degree of higher care and Caution has to be taken by the press while publishing any report, paper of the proceedings of the parliament or the conduct of any member. There are some instances where the press can be held liable for the contempt of the house-

1. Publishing any sort of news vandalizing the character of any member of the parliament.
2. Any premature or incomplete information published.
3. Misrepresenting or Misreporting the proceedings of the house.
4. Publishing the obliterate section of the proceedings.

Indeed of the truth that the freedom of the media comes under the protection of parliamentary privileges, certain amendments have been made in respect to the indemnity of the freedom of the press. If the elementary rights are being violated, there is no sign of democracy. The freedom of the press has to be defended because in India there is an indispensable need to inform everyone about the acts of our representatives Parliamentary Proceedings (Protection of the publication) Act, 1977 [10] protects the rights of the press under given circumstances-

1. The report is made for the Publicam Bonum i.e for the public good
2. The report should not reveal any secret meeting of the house.
3. The reports of the proceedings somehow to be true and real.
4. The report is made without malice intention.

Codification of the parliamentary privileges 

Parliament member enjoys supreme powers by virtue of being a member of the parliament. But there is always a doubt of misuse of the privileges conferred on them because they do not have any sort of restrictions and checks and balances on their privileges. They have the right to be the judge in their own case, regulate their proceedings, and also to decide what was considered the breach and what punishment should be given for the committed of that breach, are solely decided by them.

The power vested in their hands are too wide in scope as compared to the fundamental rights vested in the hands of citizens. Having a no codification of the privileges, they have gained omnipotent power because there is no expressed provision to put a bar on their immunities. The privilege from any civil arrest for 40 days before and after the session and during the session of the house results that they are free from arrest for even more than 365 days. No law has been till date enacted by the parliament for the codification of the parliamentary privileges.

It is mostly resisted by the members because the enactment of the law will be made privileges subject to the fundamental rights and would be entitled to judicial analysis. Justice M.N. Venkatachaliah is the head of the Constitution Review Commission suggest to define and confine the privileges for the free and independently functioning of the legislature. This raised the presumption that codification will involve interference of the court as if the matters would be presented in a court of law. Non-codification of privileges has provided the immense opportunity of greater powers vested and being enjoyed by the members of the house. But, now the time has come to confine and define the privileges and actions must be taken in case of misuse, for smooth and accordingly functioning of the parliament without any conflict.

Judicial review of the parliamentary privileges

The Indian judiciary has been entrusted to take care of and vested with the responsibility for the protection of the fundamental rights conferred by the Constitution. Parliament members claim absolute sovereignty over their privileges and also have the privilege that if in any case they do not want the judiciary to interfere in that. But, the judiciary is considered as the guardian and exclusive protector of our Constitution and it cannot stood firmly if any of the fundamental right of the citizen is violated due to privileges conferred or when there is an escape from any criminal liability.

The judiciary has to take a step on the wrongs committed by the members of the house who are taking the benefit of the privileges. The Supreme Court in Keshav Singh’s case held that the privileges conferred on the members are subject to the fundamental rights and in case of conflict fundamental right will prevail.

The Supreme Court has also observed that any conflict arising between the privileges and the fundamental rights would be resolved by adopting the harmonious methodology. The judiciary is aware enough about the fact that it does not have jurisdiction over parliamentary matters but Judicial body should have the power to decide, for the betterment of the community that any offence should be resolved by the court as it considered fit.

Parliamentary immunities and the principle of natural justice

In a judgment which was by the Apex Court judges in the case of Algaapural R. Mohanraj v Tamil Nadu[11]. it was held that the principle of natural justice cannot be taken for granted by the members of the Parliament and its immunity committee.

Facts regarding the case

On the date 19-02-2015, some of the members of the Tamil Nadu State Legislative Assembly was suspended on the grounds of misbehaving charge. In furtherance of this, a privilege committee came into existence to investigate the conduct and acts of the members of the Assembly, and further proceedings related to breach of immunity. It was found and proposed that the necessary action must be taken against six members, who are alleged for the breach of immunity.

By a decision dated 31-03-2015, the members were dispersed for a period of ten days. Further, it was extended and cover the scope to reduce their salaries and giving any other benefit or perk till the dispersion period. A writ petition was filed by the members of the Assembly in the Apex Court under Article 32 of the Indian Constitution.

Arguments raised by the members

The argument was raised by the appellant that their elementary rights (fundamental rights) under Article 19(1)(a), 19(1)(g), 14 and 21 of the Indian Constitution have been infringed by the resolution passed by the Parliament of India.

Judgment by the court

The Court does not entertain the argument of the petitioners that the decision offended Article 19(1)(a) and 19(1)(g). It further accepted the argument that the rights were violated under Article 14 of the Constitution in the context of the right to equality. The court noticed that the video recording which showed the act of the members of the legislature, amounting to the breach was not adjacent before the appellants.

If it would have been available then they may have had the chance to explain their actions or why they behave like this. It was further decided and ordered by the Court to Backed the salary and other benefits of the petitioners.

Misuse of Parliamentary Privileges

There is hardly any doubt, that a member of Parliament accepts the bribe to influence the conduct done by him/her as a member is a contempt of house, there is uncertainty whether the Parliamentary Privileges is a bar to the prosecution of the members for law offences of bribery and corruption. Salmon report commission on the standard of code and conduct of parliament stated that the statutory offence of corruption and bribery do not apply to the members of either house of the parliament. The question of whether the legislation is needed in the area of corruption in public life is not solved yet, how Parliamentary privileges affect the criminal liability deemed to be a big issue before the various committees.

In 1972 the question raised whether the court has jurisdiction over MPs in respect of the misuse of parliament privileges as indulging in taking bribes and increasing corruption. A Conservative MP, Mr. Harry Greenway, had been accused of taking bribe jointly with an executive engineering company, which had its contacts with British rail and was an employer in his constituency.

In order to curb the problems, the parliamentary privilege committee decided to codified its privileges so that the member will have some checks and balances over them. As we generally see that the level of debate proceeds in parliament is nothing more than mud-slinging over each other, and after that member take the protection that they exercise their privilege in order to show the general public the truth about their representative.

This act not meant to show the truth but to defame the other member and influence their performance while exercising his/her duties through character assassination.

Privileges give numerous perks and facilities to the members of the house and the member will start misusing it. They use the privileges for their personal means and for monetary profit

These all are the issue can be put in the heading of misuse of parliamentary privileges. And these issues are not new they have they root since so long, but there is a hope which we can rely upon and that is judicial system, which is exclusively deemed as the sole guardian of our constitution, as the constitution is the supreme law, and all laws contradicting the provisions of our constitution shall be declared as null and void.

However, Buckley J ruled that Parliamentary privileges were no bar for prosecution initiated on members of parliament found to be alleged in common law offences. Unfortunately, the case never proceeds to full trial.

Conclusion

It has been shown that there is an unmistakable division about what all rights and benefits are supreme and what isn’t. In India Legislative Assemblies and Parliament never release any legal capacity and their verifiable and protected foundation does not bolster their case to be viewed as courts of record in any sense. No insusceptibility from an investigation by courts of general warrants issued by House in India can, in this way, be asserted. 

Both the Parliament and State Legislatures have an obligation to look cautiously under the steady gaze of making any law so it doesn’t hurt different rights. It is likewise an obligation of the individuals to appropriately utilize these benefits and not abuse them for substitute purposes that are not in the support of general enthusiasm of the country and open on the loose. 

The Court has developed the correct convention to decide the benefits of the parliament that the Indian Parliament can receive. The Doctrine of Pen, Ink and Indian elastic hypothesis.

As to obtaining models and instances of benefits from the Constitution of different nations, the Supreme Court in case M.P.V. Sundaramier and Co. v. Territory of Andhra Pradesh[12]. advised: “The strings of our Constitution were no uncertainty taken from other Federal Constitution yet when they were woven into the texture of our Constitution their compass and their composition experienced changes. In this manner, significant as the American choices are as indicating how the inquiry is managed in the Federal Constitution extraordinary consideration ought to be taken in applying them in the understanding of our Indian Constitution.” 

The National Commission to Review the Working of the Constitution (NCRWC) has additionally prescribed in the report, that “The benefits of lawmaking bodies ought to be characterized and delimited for the free and autonomous working of Parliament and State Legislatures.”

It might in this way be expressed that the codification of benefits would reinforce the standard of law. Along these lines, it may be effectively reasoned so as to decide the benefits, the house can’t aimlessly embrace a similar that exists in Britain however needs to choose and examine whether it suits the Indian Democracy and does not outrage the Republic for the country.

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References

1. https://indiankanoon.org/doc/1757390/
2. https://www.5rb.com/case/john-v-associated-newspapers-ltd/
3. 1970 AIR 1573, 1971 SCR (1) 612
4. https://www.indiatoday.in/magazine/cover-story/story/20051226-jharkhand-mukti-morcha-bribery-scandal-in-1993-corruption-got-institutionalised-in-india-786386-2005-12-26
5. https://trove.nla.gov.au/newspaper/article/13189722
6.  1966 AIR 657, 1966 SCR (2) 406
7. https://indiankanoon.org/doc/528695/
8. 1959 AIR 395, 1959 SCR Supl. (1) 806
9.  AIR 1965 All 349, 1965 CriLJ 170
10. https://indiankanoon.org/doc/544981/
11. https://indiankanoon.org/doc/38086329/
12. 1958 AIR 468, 1958 SCR 1422