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This article is written by Lavanya Gupta, from the school of Law, Ansal University. This is an exhaustive article which deals with various modes of execution under the loopholes and benefits of parliamentary privileges. 

Introduction

Many privileges are being provided to both the parliamentary houses to work efficiently and effectively and to discharge its functions without any interference and obstacles. These privileges are provided to every house collectively and to its members independently. Now, the main question arises: what do we understand by the term “parliamentary privilege”? It is harder to define the extent of the unspecified powers and rights possessed by the House of Parliament under the head of privilege or laws and customs of Parliament. The term parliamentary privileges is used under Constitutional writings to denote the world’s rights and immunities. The world’s largest democratic country is India. The Indian Parliament has the power to make the laws in existence. There are two houses of the parliament, the upper house and the lower house, the upper house of parliament are elected by the legislative assembly of states and union territories by the means of a single transferable vote through proportional representation while the lower house of parliament was elected from the direct election. In this article, I am explaining the parliamentary privileges, its benefits, and loopholes enjoyed by the members of the Parliament and their committees.

What are certain Parliamentary Privileges in India

The members of the parliament have been endowed with the freedom of speech and expression. As the very essence of our democracy may be a free and fearless discussion, anything said by them expressing their views and thoughts are exempted from any liability and cannot be tried in the court of law. The freedom of speech and expression bound to a citizen under Article 19(2) is different from the liberty of speech and expression provided to a member of the parliament. It has been guaranteed under Article 105(1) of the Indian constitution. But liberty is subject to rules and orders which regulate the proceedings of the parliament. This right is given even to non-members who have a right to talk within the house. For example, the attorney general of India. So, there is fearless participation of the members in the debate and every member can put forward his thoughts without any fear or favor.

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Does the Constitution give power to the Parliament to declare its powers and functions

Article 105 and 194 of the constitution of India deals with the facility 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 parliamentarians. Section 3 of both these articles refer to the privilege of the House of Commons at the commencement of the constitution. Hence, it deals with all those privileges that exist within the House of Commons as of 26 January 1950.

Assessment of Article 105 and 194 of the Constitution

Article 105 of the Indian constitution states that the subjects to the provisions of this constitution for freedom of speech in parliament shall have the principles and standing orders regulating the procedure of Parliament. Members of Parliament shall not be susceptible to any proceedings in courts in respect of anything that has been said or any vote given by them in Parliament or any committee thereof, and no-one 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. In other respects, the powers, privileges, and immunities of every House of Parliament, and the members and therefore the committees of every House, shall be defined time to time by the Parliament by law and shall be defined by the parliamentary House and of its members and committees immediately before the approaching into force of Section 15 of the Constitution (Forty-fourth Amendment) Act 1978. The provisions of clauses (1), (2) and (3) shall apply about persons who under this constitution have the proper to talk in, and otherwise to take part within the proceedings of, a House of Parliament or any committee thereof as they apply about members of Parliament.

Article 194 of the Indian Constitution states that subject to the provisions of this Constitution and the principles and standing orders regulating the procedure of the Legislature, there shall be freedom of speech within the Legislature of every State. No state legislature member shall be liable to any kind of proceedings in any court in respect of anything said by him or any vote given by him in the Legislature or any committee thereof, and nobody 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. In respects to the powers, privileges, and immunities of a House of the Legislature of a State, and the members and the committees of a House of such Legislature, shall be like may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and its members and committees immediately before the approaching into force of Section 26 of the Constitution (forty-fourth Amendment) Act, 1978. The provisions of clauses (1), (2) and (3) shall apply in the relation to persons who by the dignity of this Constitution have the right to speak in, and otherwise to take part within the proceedings of a House of the Legislature of a State or any committee thereof as they apply about members of that Legislature.

The balance of Fundamental Rights and Parliamentary Privileges

In the case Gunupati Keshavram Reddy V. Nafisul Hasan, the housing minister was detained at his Bombay residence under the warrant directed by the leader of the U.P legislature for the contempt of the house of the state legislature and was fled to Lucknow and was confinement during a hotel under the supervision of the leader. 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 as given under Article 22 and gave orders for his release as he had not been produced before a magistrate within 24 hours of his arrest.

This decision, therefore, provides that article 194 (or 105) came under the topic of the elemental right guaranteed under Article 22(2) partially III within the constitution of India. However, in the case of M.S.M. Sharma V. S.K. Sinah, it had been argued by the appellant that the immunities conferred on the house under article 194 are subject to the supply of a fundamental right which is envisaged in part III of the constitution. 

In favor of his allegation, the petitioner relied on the supreme court’s decision given within the case Ganapati Keshavram Reddy V. Nafisul Hassan. But, in M.S.M. Sharam’s case, the Supreme Court held that in case of a 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 can prevail over the privileges conferred on the parliament and its members, committee thereof. 

As within the context of Article 21, on the facts, the court didn’t 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 aren’t within the opinion that it might be correct to read the bulk judgment as laying down the overall concept whenever their condition of imbalance between the provision of Part V of article 194(3) and any provision of the elemental right conferred by the part III, the elemental right also will remain supreme over the opposite. The unanimous decision, therefore, has to be taken to settle only that Article 19(1)(a) wouldn’t apply and Article 21 would prevail. 

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

Difference between Immunities and Privileges 

The privileges are the required complement of the immunities and disciplinary powers of the legislature. The difference between privileges and immunities isn’t always clear, and it’s convenient to remain on the term ‘privilege’ to suggest some specific fundamental rights of the legislature which are generally accepted for the exercise of its constitutional functions. 

In legislature privileges would be entirely in an effectual manner to enable it to discharge its functions, if it had no power to punish offenders, to impose disciplinary regulations upon its members, or to enforce compliance with an order to request its commands. Thus, the justification for the privileges of Parliament is necessary. There are two categories of Parliament privileges in India, the required and enumerated, and therefore the recognized but unremunerated. 

In the first category; In the House of Parliament there is freedom of speech for all; In parliament or any committee there is immunity from proceedings in any courts in respect of anything said or vote given by a member thereof; and In respect of the publication by or under the authority of either House of Parliament there is immunity from liability, of any report, paper, votes or proceeding of either House. In the second category, all those privileges which were enjoyed by the House of Commons of the Parliament of India, and its members and committees, at the commencement of the Constitution of India and would still be effective unless they’re modified and defined by Parliament by law.

Grey areas in Parliamentary Privileges

Grey areas in legal terms have no codified laws which constitute a breach of privilege offense or prescriptions for punishment. In 2017, for supporting recommendations in two separate reports of its privilege committees, the Speaker of Karnataka assembly ordered the imprisonment of two journalists for a year. The order for the arrest of Ravi Belagere and Anil Raj has drawn widespread criticism as an attempt to throttle the media. In Karnataka, over the years, prominent journalists are summoned by privileges committees of the legislature. These motions have mostly ended with journalists apologizing or clearing their stand and therefore the committees have dropped proceedings after a couple of hearings. Article 105 pertains to the powers, privileges, etc, of Parliament, its members, and committees while Article 194, protects the privileges and powers of the homes of the legislature, their members, and committees in the states.

These sections protect the liberty of freedom of speech of the members of parliament and legislators to insulate them against litigation over various matters that occur in these houses and provide many different powers to define these powers, privileges, and immunities of a house, its members, and committees There are not any laid out rules on what constitutes a breach of privilege and what punishment it entails. In other words, these powers and privileges are not codified. In Karnataka, privileges panels often ask ‘Practice and Procedure of Parliament’ by M N Kaul to define breach of privilege. The book states speeches and writing about the House or its committees or members are often punished as contempt on the principle that these actions “tend to obstruct the homes in the performance of their functions by diminishing the respect due to them’”.

The ‘breach of privilege laws’ often indicate the faults for allowing politicians to become judges in their cause and raising concerns of conflict of interest and violating basic fair trial guarantees.

Advantages and Disadvantages of Parliamentary Benefits

The advantages of Parliamentary Benefits are:

  1. It reduces friction, creates friendship, and promotes cooperation between the two arms of government: Parliamentary system of government is advantageous because it creates a friendly relationship between the executive and legislative arm of the government. This is so because the two arms of the government are not separated. In light of that, Instead of creating a situation where all the organs of the government will be separated, and given the power to check and question the activities of each other, as postulated in the principle of separation of powers; It helps free flow of information between the two arms of the government and bridges gaps that may lead to misunderstanding. 
  2. Faster and quicker decision making: For quicker and faster decisions the legislative and executive arms of the government and the system of parliament are joined together. For the approval of the policies and programs of the government for the helping of decision making quickly and the implementation of the government policies and programs by this fusion of powers.
  3. It requires less personnel and less cost: Unlike a presidential system where all the arms of government are separated and occupied by different sets of people, the fusion of the legislature and the executive to run a cabinet system of government in a parliamentary system of government means that less personnel and cost are required. Conversely, it is right to say that the parliamentary system of government is less expensive than the presidential system. 
  4. It promotes good governance: For the successful administration of the country, the Parliamentary system of government also promotes good governance because the individual and collective responsibility given to the parliament will inspire all the members of the cabinet to work hard. It also ensures accountability and transparency.

The disadvantages of Parliamentary Benefits are:

  1. With more power the members of the parliament will become too arrogant and likely to abuse power: While a parliamentary system may seem to always promote good governance, it will also make members of the parliament too powerful, arrogant and this might also lead to the abuse of political powers. Due to the system of parliament, the members will become supreme and unquestionable. 
  2. The Prime Minister is loyal to his party: The prime minister is loyal to his party and not the people of the country because he is directly elected as he becomes Prime Minister under being the leader of his party in a parliamentary system of government. Thus, he will tend to be loyal to his party and not his people. 
  3. Uncertainty and instability in government: No doubt, in a parliamentary system of government, there is always the uncertainty of the tenure of office of the prime minister as the parliament can give a “vote of no confidence” to dismiss him at any time. This may lead to crisis, segregation, or instability in governance.
  4. Overload of the functions of the cabinet: The fusion of powers of the legislative and executive functions in the members of the cabinet which may overburden them with double functions and some ministers may not be able to cope well. The fusion of powers and functions of the legislative and executive arms of government will be too much for only the cabinet to handle It because it can also lead to the ineffectiveness of the government.
  5. Lack of specialization leading to inefficiency: Lastly, while it is true that the parliamentary system requires personnel to handle both legislative and executive functions, it is important to note that a minister may lack specialization leading to inefficiency in the art of governance in one arm of government.

Issues and Challenges 

The issue of Parliamentary privileges places the judiciary and legislature at the loggerhead. On one hand, Parliament claims absolute sovereignty in the matters of its privileges, while on the other hand, the Judiciary as a custodian of the Indian Constitution does not admit any restraint on its power of judicial review. There have been legal challenges to the use of parliamentary privilege in the European Court of Human Rights, but the ECHR has thus far always upheld the proper of freedom of speech within a parliament; but there’s also the implication that if a parliament fails to police the actions of members effectively, then the court might begin to seem at this differently.

Critical analysis

Parliamentary privileges refer to the special rights which the members of Lok Sabha and Rajya Sabha enjoy on being the Members of Parliament and the purpose of giving the privilege is not to place the members of parliament above the law, but to give them a great chance to carry their duties effectively and independently to give them some rights to exclude strangers, to punish the members and outsiders for breach of its privileges, etc.

These rights are not enjoyed by common citizens and are restricted to Parliamentarians only. Article 105 of the Constitution of India lays down the privileges available to a Parliamentarian. Article 194 of the Constitution of India provides for privileges to the State legislatures and its members. The concept of Parliamentary privileges was taken from Britain which was struggling to adapt from monarchy to democracy. It was introduced to maintain the separation of powers. However, it has been seen that parliamentary privileges have been often misused by the Parliamentarians, in the recent past. 

For example, issue of privilege notice against Anupam Kher for saying things against the Indian Constitution at an Anna Hazare rally. Interestingly, the last time an outsider was punished by the House of Commons for making insulting remarks against a member, it was 1957. The problem arises because parliamentary privileges are not codified. Therefore, the Parliament can always misuse a situation to its benefit by claiming privilege, where it should not be. There is a need to codify the privileges and this can be done by the Supreme Court of India by laying down what amounts to a breach of parliamentary privilege. It can also be done by enacting legislation. For example, Australia enacted its Parliamentary Privileges Act in 1987.

It must differentiate between defamatory and critical statements coupled with decriminalizing critical statements and acts made for Parliament, its committees, and members. Otherwise, Parliamentarians will keep on indiscriminately breaching freedom of speech and expression available under Article 19(1) of the Indian Constitution. One other thing which can be done is subject parliamentary privileges to go through the Speaker of the House, instead of exercising them individually, on similar lines with New Zealand.

Landmark judgment

The conflict between legislative privileges and the law courts came to be resolved by the Supreme Court in In Re Under Article 143[xviii], a reference case, popularly known as Keshava Singh’s Case or U.P. Assembly Case. 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. Mr. Narsingh Naraina Pandey was reprimanded for the contempt and breach of privilege by the Legislative Assembly. On the same day, Mr. Keshava Singh, who was present in the house, committed another contempt of 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 seven days and he was detained.

Mr. Soloman, his advocate states that the Habeas Corpus petition alleging that his detention in jail was illegal and malafide which was moved under Section 491 CrPC read with Article 226 because he was not allowed 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 took the resolution under the view of 2 Judges, Mr. Keshava Singh and Mr. Soloman who committed Contempt of the Assembly and ordered that Keshava Singh be taken into custody immediately and both the Judges and the Advocate be brought into custody before the House. At this, the 2 Judges and the Advocate, by separate petitions moved under 226 the High Court, contended that the resolution amounted to contempt of court and for the interim orders the implementations should be set aside.

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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 withdrawn, 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.

Conclusion 

After doing the research work on the project “Parliamentary Privileges” the researcher is in a position to say that there is a clear demarcation as to what all rights and privileges are absolute and what is not. For the smooth functioning of the parliament, the privileges are conferred to the members of parliament. If the privileges aren’t following the elemental rights then the very essence of democracy for the protection of the rights of the citizen are going to be lost. It is the duty of the parliament not to violate any other rights which are guaranteed by the constitution. They should always keep in mind that the powers don’t make them corrupt. No immunity from scrutiny by courts of general warrants issued by the House in India can, therefore, be claimed. The parliament cannot adopt every privilege that’s present within the house of commons but should adopt only those privileges which accordingly suits our Indian democracy. Thus it is often successfully concluded that to work out the privileges, the house cannot blindly adopt an equivalent that exists in Britain but has got to decide and scrutinize whether it suits the Indian Democracy and doesn’t offend the Republic characteristic of the state.

References 

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