The article is written by Harmanpreet Kaur, of Amity University, Kolkata. The article will provide an understanding of the concept of parliamentary privileges and fundamental rights and the areas of conflict between the two.

Introduction

India’s Constitution is the world’s longest Constitution. The Constitution has been granted the power to make laws. The Indian Constitution has conceded the power of the fundamental rights under Part-III to every citizen as it was deemed essential to protect the rights and the liberties of the people against the encroachment of the power delegated to them by their government. The fundamental rights have been granted to the citizens by the Constitution, following the trend of modern democratic thought, and the recommendation being preserved that it is an indispensable condition of a free society. On the other hand, there is a grant of parliamentary privileges to the members of the Lok Sabha and the Rajya Sabha. These privileges have been granted to the Parliament under various circumstances, which will be discussed in the latter half of the article. Now the questions arise, as to whether the parliamentary privileges and the fundamental rights are coherent to each other? Or whether there are any inflicting issues between the two?

The article will further discuss the relationship and the issues of the conflicts between the fundamental rights and the parliamentary privileges and the necessities to codify the privileges so that the importance of fundamental rights is not lost. 

Relationship between the parliamentary privileges and fundamental rights

The term parliamentary privilege is defined by Sir T. May as “Some of the peculiar rights enjoyed by each house collectively as a constituent part of the Parliament and by the members of each house individually without which they could not discharge their functions and which exceed those possessed by the other bodies or individuals”. In other words, parliamentary privileges are referred to as the rights and the immunities enjoyed by the members of the Parliament in their capacity. The concept of parliamentary privileges has been adopted from the British Parliament. 

Article 105 and Article 194 of the Constitution of India, impart privileges to the legislature in India. Article 105 deals with the privileges related to the Parliament and Article 194 deals with the privileges related to the State Legislatures. 

Parliamentary privileges guaranteed by the Constitution

Freedom of speech in the Parliament and the Legislature of each state

The freedom of speech in the Parliament and legislature as a privilege in the Indian Parliament was adopted from the British Parliament and is a well-established privilege in the House of Commons. It has been given statutory recognition by the Bill of Rights in 1689, which states that the freedom of speech or debates in Parliament should not be impeached or questioned in any court or out of Parliament. 

The Indian Constitution expressly guarantees this privilege under Article 105(1), stating that “subject to the provisions of the Constitution of India and the rules and standing orders regarding the procedure of the Parliament, there shall be freedom of speech in the Parliament”. The Article grants absolute immunity from the courts, for anything that is being said during the course of the proceedings of the house or its committees. The member of the Parliament is though prohibited to repeat or publish any defamatory speech, and if he does that he would be liable to be prosecuted under Section 500 of the Indian Penal Code, 1860. Article 121 acts as one of the constitutional restrictions on the freedom of speech, which prohibits any kind of discussions in the Parliament concerning the conduct of any judicial body i.e., the Judge of the High Courts and the Supreme Court in the discharge of his duties, except when a motion to present an address to the President for his removal is under consideration of the house.

Right of Publication of its proceedings

Article 105(2) states that the member of the Parliament shall not be liable to any proceedings in the courts, in respect of anything said or any vote given by him in Parliament or in any committee, and also shall not be liable for any kind of a report published by or under the authority of either House of the Parliament. The protection under the Article does not extend to any kind of publication made by a private person without the authority of the House of Parliament. According to the Parliamentary Proceedings (Protection of a Publication) Act, 1956 provided that no person shall be liable for any kind of a proceeding civil or criminal in any court in respect of the publication of the substantially true report of the proceedings of either house of the Parliament unless it is proved that the publication of such proceeding expressly ordered to be expunged by the Speaker. 

The Supreme Court in the Search Light Case, 1959 held that the publication of an expunged portion of speech constituted a breach of the privilege of the House. The effect in the law of the order of the speaker to expunge a portion of the speech of a member may be as if that portion has not been spoken. In India, the House of Parliament has the power to prohibit the publication of proceedings

Freedom of Arrest

This privilege is well-established in the British House of Parliament. Also in India, a member of the Parliament, cannot be arrested or imprisoned for any civil proceeding within 40 days before and 40 days after the session of Parliament. If any member is arrested within this period, then he shall be released immediately, so that he can attend the session of the Parliament. The privilege does not extend to arrest or imprisonment on a criminal charge or for contempt of court or preventive detention.

Right to exclude strangers from the proceedings of the Parliament and hold secret sessions

This right has also been adopted by the British Parliament in the Indian House of the Parliament. The Parliament in India has the privilege to go into secret missions to discuss some important matters, but only in exceptional circumstances because the voters must be informed of the doings of their respective representatives in the Legislature.

Right to regulate internal proceedings

The House has an exclusive right to regulate its internal proceedings and to adjudicate upon such matters. As stated under Article 122(1), the validity of the proceedings in the Parliament cannot be called in question in a court law on the ground of any alleged irregularity of procedure.

Right to punish members or outsiders for contempt

The Parliament has the power to punish a member or stranger for the ‘contempt of court’ or for ‘breach of privilege’. A member may be suspended or expelled from the house or maybe punished with imprisonment.

The Fundamental Rights have been provided to every citizen of India, and the members of the Parliament also have access to the rights enshrined under Part-III of the Constitution and enjoy the privileges of the fundamental rights. According to Article-105, the members of the Parliament enjoy absolute privileges with no restrictions in respect to their conduct or proceedings. These special privileges have been assigned to the members of the Parliament to maintain the independence of action and to facilitate free discussion and debate sessions in the Parliament. Article19(1)(a) guarantees freedom of speech and expression to every citizen, but this right is subject to reasonable restrictions under Article 19(2). Though the right under Article 105 is independent and is not subject to restriction under Article 19(2). Thus, it can be said that freedom of speech under Article 105 is different from the freedom of speech under Article 19, which is subject to restriction. 

Areas of conflict between the two

There are two points of conflict that can be observed are:

1. Parliamentary privileges state that the members in the Parliament have the right to prohibit publication of proceedings and reports in their respective sessions and the freedom of press and speech, but this comes in conflict with the Fundamental Right of the freedom of speech and expression, which states that it is a right guaranteed to express one’s convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode.
2. Parliamentary privileges are referred to as independent rights, with no reasonable restrictions, but the fundamental right of Article 19(2) is an absolute individual right with reasonable restrictions.

In accordance with these conflicts, the legal question and a judicial interpretation arise, as to which of the two will prevail in case there is a conflict between the fundamental rights and parliamentary privileges. Few questions that arise amidst the conflict between the two are: 

• If there is a conflict between the parliamentary privileges and the fundamental rights, which one of the two will prevail?
• Can the parliamentary privileges be struck down if they are conflicting with the fundamental rights? Or 
• Do the courts have the right to exercise their judicial power in the case of parliamentary privileges?

These can be reviewed and interpreted through various judgments.

G.K. Reddy v. Union of India (1954)

In this case, a writ petition was filed under Article 32 to the Supreme Court under the Constitution of India praying that GK Reddy, an editor of the magazine, was held for the contempt of a privilege and was under illegal detention. The petition stated that he was arrested in Bombay and was taken into custody by the Lucknow Police and was to be produced before the Speaker of UP to answer a charge of breach of privilege. The journalist was not even produced before the Magistrate within twenty-four hours and was under illegal detention under the custody of the Speaker of the Legislative Assembly of UP.

The Supreme Court held that the failure to produce the arrested person before the Magistrate within twenty-four hours amounted to an illegal arrest, which would act as a violation of his right guaranteed under Article 22(2) of the Constitution.

K. Anandan Nambiar v. Chief Secretary Government of Madras (1966)

In this case, the petitioners were members of the Parliament and were detained under Defence of India Rules, 1962. The petitioners challenged the order of detention on the ground that a legislature could not be detained to prevent him from exercising the constitutional rights as legislature while the Legislative chamber to which he belonged was in session.

The Supreme Court held that if a person was detained under valid detention, he could not claim parliamentary privilege and should not be given special status under that of an ordinary citizen and that he was liable to be arrested and determined under it as any other citizen. If an order of detention validly prevents a member from attending a session of Parliament, no occasion would arise for the exercise by him of the right of freedom of speech.

Keshav Singh v. Speaker, Legislative Assembly (1965)

In this case, Keshav Singh, who was not a member of the U.P. Assembly was held guilty for contempt of the House and was sentenced to imprisonment for seven days. The petitioner moved the court under the Habeas Corpus petition alleging that his detention was illegal and mala fide as he was not given an opportunity to defend himself, which in itself is a breach of the principles of natural justice. 

The Allahabad High Court granted interim bail to the petitioner and he was released. 

The Assembly, aggrieved by the decision of the court, passed a resolution that the Judges, Keshav Singh, and his advocate have committed contempt of the House and should be taken into custody. 

The case was then directed to the Supreme Court and it was held by the court that the Judges were not guilty of committing contempt of the House by the issuance of an interim bail order and also stated that the High Courts under Article 226 have the jurisdiction to order the release of a person from illegal detention as this is his fundamental right guaranteed by the Constitution under Article 22.

Instances of misuse of parliamentary privileges to suppress the democratic views

Various instances show how the members of the Parliament misused their respective parliamentary privileges, which suppressed the democratic views.

1. In 2003, a speaker of the Tamil Nadu’s Legislative Assembly ordered to arrest the editors and journalists of ‘the Hindu, as they published in their article the expressions ‘incensed’, ‘fumed’ and ‘high pitched tone’ for the conduct of the member in the session of the assembly, stating that it was considered to be a breach of his privilege. The speaker of the assembly stated that the power to use his privilege was in a clear display of the doctrine of ‘sky-high powers’. The committee in consultation with the other reporters and editors ordered jail imprisonment for the journalists. The journalists were not even given the chance to be heard, which acted in violation of the principles of natural justice. The uncodified nature of the parliamentary privileges gave the unlimited powers to the Speaker to arrest the journalists, thereby  resulting in the breach of Article 19 and Article 21 of the Constitution of India 
2. The next incident was that in the year 2017 when the editors of two Kannada tabloids Ravi Belagare and Anil Raju of ‘Hi Bangalore’ and ‘Yelahanka Voice’  were arrested and imprisoned by the Karnataka High Court on the recommendations by the Speaker of the Legislative Assembly of Karnataka contending that the journalists’ published defamatory statements against the Speaker, which violated their privileges. The imprisonment of the journalists was condemned by Asmita Basu, a program director at Amnesty International India and human rights organization who stated that “Journalists must have the freedom to write critical articles, and politicians must be able to tolerate criticism” and “If individuals feel that their reputations have been affected, they can take recourse to civil defamation remedies in court”.  
3. In February 2006, the Chief of Maharashtra Dance Bar Association was given imprisonment for 90 days for using the remark that “we would not allow minister’s wives to move around if dance bars were banned”. The Legislative Assembly stated that the remark acted as a breach of parliamentary privileges and thus the Legislative Assembly has the right to order the arrest of the member in chief of the Dance Bar Association.
4. In 2019, the Speaker of Maharashtra Legislative Assembly, Nana Patole ordered action of arrest against the man for creating a parody video of the speech made by one of the members of the Assembly named Devendra Fadnavis. The arrest order was initiated against the man stating that he violated the parliamentary privileges of the members of the Parliament.

These were the few instances in which the Parliament used their privileges to stifle the democratic powers of the citizens which also infringed their fundamental rights. Thereby, the positive criticisms and the remarks made should not be taken as a defamatory remarks, as the citizens have the right to publish and write under Article 19 of the Constitution of India. 

Need for codifying privileges and giving primacy to the fundamental rights

The concern for codifying the parliamentary privileges has been a debatable topic since the emergency declaration of 1975. There has been a misuse of powers and rights by the members of the Parliament and Legislative Assembly which results in the violation and infringement of fundamental rights. There is a need to codify parliamentary privileges because: 

• The idea of constitutionalism is to grant limited powers to the different bodies of the government, as held in the case of Keshavanada Bharati. Consequently, there is an absence of defined powers in the Constitution for the members of the Parliament, and these undefined privileges or unlimited powers pose before it a threat to the rights of the citizens.
• There have been instances in the past and even in the present where the members and the ministers have misused these privileges by framing false accusations and charges to tarnish the representation of the citizen with a fraudulent intention. 
• Unlike the British Parliament, the Constitution of India is the supreme authority and has the power to introduce and enact new laws and legislation, and eventually can codify these privileges to prevent misuse.
• While the framing of the Constitution, it was elucidated that the parliamentary privileges would remain similar to those of the British House of commons but can also be changed and introduced if the legislators want so, but the legislators have maintained a status quo on this issue.
• Constructive criticism and dissent are the essentials of democracy. Thus, restraining the citizens from exercising their fundamental rights of freedom of speech and expression would be amounting to infringement of their fundamental rights and against the ideals of democracy.
• If parliamentary privileges are codified, the accountability and the administration of the members would increase thereby benefiting the democracy.
• The arbitrary nature of the powers led to the misuse, which was intended to ensure independence and efficiency but ended up becoming political tools breaching harmony and peace.

It was held in the case of Keshavanada Bharati, that the Fundamental Rights and the limited power of Parliament, and the power of Judicial Review form the basic structure of the Constitution. Thus, it can be stated that fundamental rights should be considered of prime importance and the limited powers should be imposed upon the Parliament in accordance with the parliamentary privileges. The National Commission in 2003 noted that the Constitution should be reviewed and also stated that “The only idea behind parliamentary privilege is that members who represent the people are not in any way obstructed in the discharge of their parliamentary duties and are able to express their views freely and fearlessly inside the Houses and Committees of Parliament without incurring any legal action on that account”. Further, it opined the “Privileges of members are intended to facilitate them in doing their work to advance the interests of the people. They are not meant to be privileges against the people or against the freedom of the Press. The Commission recommends that the time has come to define and delimit privileges deemed to be necessary for the free and independent functioning of Parliament”.

Conclusion

Thus, it can be concluded that there must be a balance between the fundamental rights of the citizens and between the parliamentary privileges because the Parliament and the members of the Legislative Assembly in most of the instances have misused their privileges which has a direct impact on the democracy and in curtailing the voices of democracy. 

The concept of parliamentary privileges in the Indian Constitution was adopted from the British Parliament. The British Parliament introduced the concept to protect the members not from the citizens but from the power and interference of the King. The parliamentary powers introspect the dominance of the ruling party on the citizens and the fundamental rights whether at the centre or the state. Thus, steps should be taken to strike a balance between the fundamental rights and the parliamentary privileges for the better and smooth functioning of the government and to abide by the principle of democracy.

References

• Indian Constitutional Law, Eighth Edition, MP Jain.
• https://indiankanoon.org/     
• https://www.barandbench.com/apprentice-lawyer/legislative-privileges-the-exercise-of-indefinite-powers-to-curtail-the-voice-of-democracy
• https://www.thedailystar.net/opinion/asian-editors-circle/bearing-the-burden-undefined-privileges-1437583

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