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Introduction:
The term
parliamentary privileges
is used in Constitutional writings to denote both these types of
rights and immunities. Sir Thomas Erskine May has defined the
expression ?Parliamentary privileges? as follows:
The sum of the peculiar rights enjoyed by each house collectively
is a constituent part of the High Court of Parliament, and by
members of each house of parliament individually, without which
they cannot discharge their functions, and which exceed those
possessed by other bodies or individuals.
Parliamentary Privileges
A.105.Powers,
privileges, etc., of the Houses of Parliament and of the members
and committees thereof
1. Subject to the provisions of this Constitution and the
rules and standing orders regulating the procedure of Parliament,
there shall be freedom of speech in Parliament.
2. No member of Parliament shall be liable to any
proceeding in any court in respect of anything said or any vote
given by him in Parliament or any committee thereof, and no person
shall be so liable in respect of the publication by or under the
authority of either House of Parliament of any report, paper,
votes or proceedings.
3. In other respects, the powers, privileges and immunities
of each House of Parliament, and the members and the committee of
each House, shall be such as may from time to time be defined by
Parliament by law, and until so defined, [shall be those of that
House and of its members and committees immediately before the
coming into force of Section 15 of the Constitution (44th
Amendment) Act, 1978].
4. The provision of clauses (1), (2), and (3) shall apply
in relation to persons who by virtue of this Constitution have the
right to speak in, and otherwise to take part in the proceedings
of, a House of Parliament or any committee thereof as they apply
in relation to the members of Parliament.
Parliamentary privileges-this article defines parliamentary
privileges of both Houses of Parliament and of their members and
committees. Article 194, which is an exact reproduction of Article
105, deals with the State Legislatures and their members and
committees. To enable Parliament to discharge functions properly
the Constitution confers on each member of the Houses certain
rights and immunities and also certain rights and immunities and
powers on each house collectively. Parliamentary privilege is an
essential incident to the high and multifarious functions which
the legislature is called upon to perform. According to May, the
distinctive mark of a privilege is its
ancillary character
a necessary means to fulfillment of functions. Individual members
enjoy privileges because the House cannot perform its function
without unimpeded use of the services of its members and by each
House for the protection of its members and the vindication of its
own authority and dignity.
In defining parliamentary privilege this article adopts certain
method. Two privileges, namely, freedom of speech and freedom of
publication of proceedings, are specifically mentioned in clauses
(1) and (2). With respect to other privileges of each House,
clause (3) before its amendment in 1978 laid down that the powers,
privileges and immunities shall be those of the House of Commons
of the United Kingdom at the commencement of the Constitution
until they are defined by an Act of
Parliament. Though since 1978 position has changed in so far as
the privileges of parliament, its members and committees have to
be determined on the basis of what they were immediately before
the commencement of 1978 amendment i.e., before 20th June 1979.
Freedom of speech
Article 105, clause (1), expressly safeguards freedom of speech in
parliament. It says:
there shall be freedom of speech in parliament.
Clause (2) further provides that no member of Parliament shall be
liable to any proceedings in any court in respect of anything said
or any vote given by him in parliament or any committee thereof.
No action, civil or criminal, will therefore lie against a member
for defamation or the like in respect of things said in parliament
or its committees. The immunity is not limited to mere spoken
words; it extends to votes, as clause (2) specifically declares,
viz.
any vote given by him in parliament or any committee thereof.
Though not expressly stated, the freedom of speech would extend to
other acts also done in connection with the proceedings of each
House, such as, for notices of motions, questions, reports of the
committee, or the resolutions.
It may be noted that clause (1) of Article 105 is made
Subject to
the provisions of this constitution and to the rules and standing
orders regulating the procedures of Parliament.
The words
regulating the procedures of Parliament
occurring in clause (1) should be read as covering both
the provisions of the Constitution
and
the rules and standing orders. So read,
freedom of speech in Parliament becomes subject to the provisions
of Constitution relating to the procedures of Parliament, i.e.,
subject to the articles relating to procedures in Part V including
Articles 107 and 121. Thus for example, freedom of speech in
Parliament would not permit a member to discuss the conduct of any
judge of the Supreme Court or of a High Court. Likewise, the
freedom of speech is subject to the rules of procedures of a
House, such as use of unparliamentary language or unparliamentary
conduct.
The freedom of speech guaranteed under clause (1) is different
from that which a citizen enjoys as a fundamental right under
Article 19 (1) (a). the freedom of speech as a fundamental right
does not protect an individual absolutely for what he says. The
right is subject to reasonable restrictions under clause (2) of
Article 19. The term ?freedom
of speech?
as used in this article means that no member of Parliament shall
be liable to any proceedings, civil and criminal, in any court for
the statements made in debates in the Parliament or any committee
thereof. The freedom of speech conferred under this article cannot
therefore be restricted under Article 19 (2) . Clauses (1) and (2)
of Article 105 protect what is said within the house and not what
a member of Parliament may say outside. Accordingly, if a member
publishes his speech outside Parliament, he will be held liable if
the speech is defamatory . Besides, the freedom of speech. To
which Article 105 (1) and (2) refer, would be available to a
member of Parliament when he attends the session of Parliament, no
occasion arises for the exercise of the right of freedom of
speech, and no complaint can be made that the said right has been
invalidly invaded.
Article 105 (2) confers immunity, inter alia, in respect of
anything said in Parliament
the word
anything
is of the widest import and is equivalent to
everything.
The only limitation arises from the words
in Parliament, which means during the
sitting of Parliament and in the course of business of Parliament.
Once it was proved that Parliament was sitting and its business
was transacted, anything said during the course of that business
was immune from proceedings in any court. This immunity is not
only complete but it is as it should be. It is one of the essence
of parliamentary system of government that people's representative
should be free to express themselves without fear of legal
expenses. What they say is only subject to the discipline of the
rules of Parliament, the good sense of the members and the control
of proceedings by the speaker. The courts have no say in the
matter and should really have none.
In a much publicized matter involving former Prime Minister,
several ministers, Members of Parliament and others a divided
Court, in
P.V.Narsimha Rao v. State
has held that the privilege of immunity from courts proceedings in
Article 105 (2) extends even to bribes taken by the Members of
Parliament for the purpose of voting in a particular manner in
Parliament. The majority (3 judges) did not agree with the
minority (2 judges) that the words
in respect of
in Article 105 (2) mean,
arising out of
and
therefore would not cover conduct antecedent to speech or voting
in Parliament. The court was however unanimous that the members of
Parliament who gave bribes, or who took bribes but did not
participate in the voting could not claim immunity from court proceeding's under Article 105 (2). The decision has invoked so
much controversy and dissatisfaction that a review petition is
pending in the court.
Right of Publication of proceedings
Clause (2) of Article 105 expressly declares that no person shall
be liable in respect of the publication by order under the
authority of a house of Parliament, of any report, paper, votes or
proceedings. Common law accords the defence of
qualified
privilege to fair and accurate unofficial reports of
parliamentary proceedings, published in a newspaper or elsewhere.
In Wason v. Walter , Cockburn, C.J. observed that it was of
paramount public and national importance that parliamentary
proceedings should be communicated to public, which has the
deepest interest in knowing what passes in Parliament. But a
partial report or a report of detached part of proceedings
published with intent to injure individuals will be disentitled to
protection. The same is the law in India. The Parliamentary
Proceedings (Protection of Publication) Act, 1956 enacts that no
person shall be liable to any proceedings, civil or criminal, in a
court in respect of the publication of a substantially true report
of the proceedings in either House of the Parliament, unless it is
proved that the publication is made with malice.
Other privileges
Clause (3) of Article 105, as amended declares that the privileges
of each House of Parliament, its members and committees shall be
such as determined by Parliament from time to time and until
Parliament does so, which it has not yet done, shall be such as on
20th June 1979 i.e., on the date of commencement of Section 15 of
the 44th Amendment. Before the amendment this clause has provided
that until Parliament legislates the privileges of each House and
its members shall be such as those of the House of Commons in
England at the time of commencement of the Constitution. As the
position till 20th June 1979 was determined on the basis of
original provision, it is still relevant to refer to the law as it
has been in the context of English law. In that perspective it may
be emphasized that there are certain privileges that cannot be
claimed by Parliament in India. For example, the privileges of
access to the sovereign, which is exercised by the House of
Commons through its Speaker to have at all times the right of
access to the sovereign through their chosen representative can
have no application in India.
Similarly, a general warrant of arrest issued by Parliament in
India cannot claim to be regarded as a court of record in any
sense . Also the privilege of the two Houses of Parliament, unlike
the privileges of the House of Commons and House of Lords in
England are identical. To each House of Parliament, accordingly,
belong the privileges, which are possessed by the House of Commons
in the United Kingdom.
In India freedom from arrest has been limited to civil causes and
has not been applied to arrest on criminal charges or to detention
under the Preventive Detention Act . Also there is no privilege if
arrest is made under s.151 Criminal Procedure Code . It has been
held in
K. Anandan Kumar v. Chief Secretary, Government of Madras
, that matters of Parliament do not enjoy any special status as
compared to an ordinary citizen in respect of valid orders of
detention.
In India, the rules of procedure in the House of People give the
chair the power, whenever it thinks fit, of ordering the
withdrawal of strangers from any part of the House and when the
House sits in a secret session no stranger is permitted to be
present in the chamber, lobby or galleries. The only exceptions
are the members of the Council of States and the persons
authorized by the Speaker.
In
Pandit M.S.M Sharma v. Shri Krishna Sinha
, proceedings for the
breach of privilege had been started against an editor of a
newspaper for publishing those parts of the speech of a member
delivered in Bihar legislative assembly which the speaker had
ordered to be expunged from the proceedings of the Assembly. The
editor in a writ petition under A. 32 contended that the House of
Commons had no privilege to prohibit either the publication of the
publicly seen and heard proceedings that took place in the House
or of that part of the proceedings which had been directed to be
expunged. The Supreme Court by a majority of four to one rejected
the contention of the petitioner. Das C.J., who delivered the
majority judgment, observed that the House of Commons had at the
commencement of our Constitution the power or privilege of
prohibiting the publication of even a true and faithful report of
the debates or proceedings that took place within the House. A
fortiori the House had at the relevant time the power or privilege
of prohibiting the publication of an inaccurate version of such
debates or proceedings.
Now Article 361-A inserted by the 44th Amendment with effect from
June 20, 1979 provides that no person shall be liable to any
proceedings civil or criminal for reporting the proceedings of
either House of Parliament or a State Legislature unless the
reporting is proved to have been made with malice. This provision
does not apply to the reporting of proceedings of secret sittings
of the Houses.
In India there also vest a right of the House to regulate its own
constitution. When a seat of a member elected to the house becomes
vacant, the Election Commission, by a notification in the Gazette
of India calls upon the Parliamentary constituency concerned to
elect a person for the purpose of filling the vacancy. In India,
Article 103 expressly provides that if any question arises as to
whether a member of either House of Parliament has become subject
to any of the disqualifications, the question shall be referred to
the President whose decision shall be final. The President is
however required to act in this behalf according to the opinion of
Election Commission.
As far as right to regulate internal proceedings are concerned
Article 122 expressly provides that the validity of any
proceedings shall not be called in question on the ground of any
alleged irregularity of procedure, and no officer or member of
Parliament in whom powers are vested by or under the Constitution
for regulating the procedure or the conduct of business or for
maintaining order in Parliament shall be subject to the
jurisdiction of any court in respect of the exercise by him of
those powers.
Law Courts and Privileges
Article 105, so also Article 194 subjects the powers, privileges
and immunities of each House as well as all its members and all
its committees not only to the laws made by the appropriate
legislature but also to all other provisions of the Constitution.
Both these articles far from dealing with the legislative powers
of the Houses of Parliament or of State Legislature respectively
are confined in scope to such powers of each House as it may
exercise separately functioning as a House .
A House of Parliament or Legislature cannot try anyone or any case
directly as a court of justice can, but it can proceed quasi
judicially in cases of contempt of its authority or take up
motions concerning its
privileges
and
immunities
in order to seek removal of obstructions to the due performance of
its legislative functions. If any question of jurisdiction arises
as to a certain matter, it has to be decided by a court of law in
appropriate proceedings. For example, the jurisdiction to try a
criminal offence such as murder, committed even within a House
vests in ordinary courts and not in a of Parliament or in a State
Legislature. Also, a House of Parliament or State Legislature
cannot in exercise of any supposed
powers
under Articles 105 and 194 decide election disputes for which
special authorities have been constituted under the Representation
of People Act, 1951 enacted in compliance with Article 329.
Parliamentary Privileges and Fundamental Rights
In Pandit M.S.M. Sharma's case it was also contended by the
petitioner that the privileges of the House under A.194 (3) are
subject to the provision of Part III of the Constitution. In
supposrt of his contention the petitioner relied n the Supreme
Court's decision in
Gunupati Keshavram Reddi v. Nafisul Hasan. In
this latter case Homi Mistry was arrested at his B'bay residence
under a warrant issued by the Speaker of U.P. Assembly for
contempt of the House and was flown to Lucknow &
kept in a hotel in Speaker's custody. On his applying for a writ
of habeas corpus, the Supreme Court directed his release as he had
not been produced before a magistrate within 24 hours of his
arrest as provided in Article 22 (2). This decision therefore
indicated that Article 194 (or Article 105) was subject to the
Articles of Part III of the Constitution.
In
Sharma's case
the Court held that in case of conflict between
fundamental right under Article 19 (1) (a) and a privilege under
Article 194 (3) the latter would prevail. As regards Article 21,
on facts the Court did not find any violation of it. In Powers,
Privileges and Immunities of the State Legislature, Re , the
proposition laid down in Sharma's case was explained not to mean
that in all cases the privileges shall override the fundamental
rights.
The rules of each House provide for a committee of privileges. The
matter of breach of privilege or contempt is referred to the
committee of privileges. The committee has power to summon members
or strangers before it. Refusal to appear or to answer or to
knowingly to give false answer is itself a contempt. The
committee's recommendations are reported to the House which
discusses them and gives its own decision.
Article 194
Powers, privileges, etc., of the Houses of Legislature and of the
members and committees thereof.
1. Subject to the provisions of this Constitution and to the rules
and standing orders regulating the procedure of the Legislature,
there shall be freedom of speech in the Legislature of every
State.
2. No member of the Legislature of a State shall be liable to any
proceeding in any court in respect of anything said or any vote
given by him in the Legislature or any committee thereof, and no
person shall be so liable in respect of the publication by or
under the authority of a House of such a Legislature of any
report, paper, votes or proceedings.
3. In other respects, the powers, privileges and immunities of a
House of the Legislature of a State, and of the members and the
committees of a House of such Legislature, shall be such as may be
defined from time to time be defined by the Legislature by law,
and until so defined, shall be those of that House and of its
members and committees immediately before the coming into force of
Section 26 of the Constitution (Forty Fourth Amendment) Act, 1978.
4. The provisions of clauses (1), (2) and (3) shall apply in
relation to persons who by virtue of this Constitution have the
right to speak in, and otherwise to take part in the proceedings
of, a House of the Legislature of a State or any committee thereof
as they apply in relation to members of that Legislature.
This article that applies to the State Legislatures and members
and committees thereof is an exact reproduction of Article 105,
which applies to both Houses of Parliament and committees thereof.
Clause (1)-
of this article declares that there shall be freedom
of speech in the legislature of every State. This freedom is
subject to the provisions of Articles 208 and 211 . A member
cannot accordingly raise discussions as to the conduct of a
Supreme Court or High Court judge as A. 211 prohibits it. The
provisions of the Constitution subject to which freedom of speech
has been conferred on the legislators are not the general
provisions of the Constitution but only such of them as relate
to the regulation of the procedure of the Legislature. The freedom
of speech guaranteed to citizens under A. 19 (1) (a) is therefore
separate and independent of Article 194 (1) and does not control
the first part of clause 1 of A.194.
Clause (2)-
emphasizes the fact that the freedom of speech
conferred on the Legislatures under clause (1) is intended to be
absolute and unfettered. Similar freedom is guaranteed to the
legislators in respect of the votes they may give in the
Legislature or committees thereof. Thus, if a legislator exercises
aright of freedom of speech in violation of A. 211 he would not be
liable for any action in any court. Likewise, if the legislator by
his speech or vote is alleged to have violated any of the
fundamental rights guaranteed by Part III of the Constitution in
the Legislative Assembly, he would not be answerable for the said
contravention in any court. If the speech amounts to libel or
becomes actionable or indictable under any other provision of the
law immunity has been conferred on him from any action in any
court by clause (2). He may be answerable to the House for such a
speech and the Supreme Court may take appropriate action against
him in respect of it. Thus clause (1) confers freedom of speech to
the legislators within the legislative chambers and clause (2)
makes it plain that the freedom is literally absolute.
Clause (3)- the first art of this clause empowers the State
Legislature to make laws Prescribing its powers, privileges and
immunities. If the Legislature of a State under the first part of
clause (3) makes a law which prescribes its powers, privileges and
immunities, such law would be subject to Article 13 and clause (2)
of that article would render it void if it contravenes or abridges
any of the fundamental rights guaranteed by Part III.
The right of State Legislatures to punish for contempt can be
discussed with the case law of Powers, Privileges and Immunities
of State Legislature, Re. The reference was a sequel to the
passing of an order by an unprecedented Full Bench of 28 judges
staying, under Article 226, the implementation of the U.P.
Assembly resolution ordering two judges of Allahabad High Court to
be brought in custody before the Bar of the House to explain why
they should not be punished for the contempt of the House. The two
judges had admitted the habeas corpus petition of and granted bail
to one Keshav Singh who was undergoing imprisonment in pursuance
of the Assembly Resolution declaring him guilty of the breach of
privilege. The resolution of the Assembly and the stay order
issued by the Full Bench resulted in a constitutional stalemate.
Consequently,
the president referred the matter under Article 143 to the Supreme
Court for its opinion. The Supreme Court by a majority of 6:1,
through an elaborate and learned opinion delivered by
Gajendragadkar, C.J., held that in India notwithstanding a general
warrant issued by the Assembly, the Courts could examine the
legality of the committal in proper proceedings.
Other propositions were also laid down in the majority judgment.
It said that Article 194 (3) cannot be read in isolation. The
impact of Articles 226, 32 and 211 had to be ascertained in order
to determine the scope of Article 194. Article 226 empowers the
High Court to issue a writ of habeas corpus against
any authority.
This would include the legislature since no exception is made in
favour of a detention order by the House for the breach of its
privileges. Article 211 on the other hand unambiguously indicates
that the conduct of a judge in the discharge of his duties can
never become the subject matter of any action taken by the House
in exercise of its powers or privileges conferred by the latter
part of Article 194 (3). The fact that the first part of Article
194 (3) refers to future laws defining the privileges as being
subject to fundamental rights is a significant factor in
construing the latter part of Article 194. Such a state
legislation would be law within the meaning of article 13 and the
courts will be competent to examine its validity vis-à-vis the
fundamental right. Although no opinion was tendered as regards
fundamental rights in general, it was made clear that so far as
Articles 21 and 22 are concerned, any privileges etc., which are
claimed, must be consistent with these articles in the context of
Article 208.
Conclusion
There is a clear demarcation as to what all rights and privileges
are absolute and what are not. For example, in India Legislative
Assemblies and Parliament never discharge any judicial function
and their historical and constitutional background does not
support their claim to be regarded as courts of record in any
sense. No immunity from scrutiny
by courts of general warrants issued by House in India can
therefore be claimed.
Both the Parliament and State Legislatures have a duty to look
carefully before making any law, so that it doesn't harm other
rights. It is also a duty of the members to properly use these
privileges and not misuse them for alternate purposes that is not
in the favour of general interest of nation and public at large.
Thus what we must keep in mind is the fact that ?power corrupts
and absolute power corrupts absolutely. For this not to happen
under the privileges granted, the public and the other governing
body should always be on vigil.
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End Notes:-
1.Sir Thomas Erskine May: Parliamentary Practice, 16th Edn.,
Chapter III, p.42.
2.Tej Kiran Jain v. N. Sanjeeva Reddy, (1970) 2 SCC 272: AIR 1970
SC 1573.
3.Pandit M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, 409.
4.P.V.Narsimha Rao v. State (1998) 4 SCC 626
5.Jatish Chandra Ghosh v. Harisadhan Mukharjee AIR 1956 Cal 433.
6.K. Anandan Nambiar v. Chief Secretary, Government of Madras, AIR
1966 SC 657, 664: (1996) 2 SCR 406
7.Tej Kiran Jain v.N. Sanjiva Reddy (1970) 2 SCC 272:AIR 1970 SC
1573
8.(1998) 4 SCC 626
9.LR 4 QB 73
10.Powers, Privileges and Immunities of the State Legislature, Re,
AIR 1965 SC 745: (1965) 1 SCR 413.
11.Ansumali Majumdar v. State of W.B. AIR 1952 Cal. 632
12.AIR 1962 Cal 632
13.AIR 1966 SC 657
14.Rule 248: there are similar provisions in the rules of Rajya
Sabha.
15.AIR 1959 SC 395: 1959 Supp (1) SCR 806.
16.State of Karnataka v. Union of India (1977) 4 SCC 608, 654
17.Indira Nehru Gandhi v.Raj Narain 1975 Supp.SCC 1, 47: AIR 1975
SC 2299
19.AIR 1965 SC 745, 7652
20.In case of Parliament, Articles 118 and 120.
21. AIR 1965 SC 745.
 The
author can be reached at :JayantBhatt@legalserviceindia.com
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An
Analysis of Parliamentary Privileges in India
