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constitution law project on parliamentary privileges
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This is to certify that the project is submitted to Rajiv Gandhi National University of Law, Patiala in partial fulfilment of the requirement of the B.A. LLB (Hons.) course. It is an original and bona-fide research work carried out by Mr Srajan Yadav under my supervision and guidance. No part of this project has been submitted to any University for the award of any Degree or Diploma, whatsoever.
Parliament perform important functions as democratic Institution which broadly fit into three main areas; representation, legislation and overseeing of executive government. To achieve this objective and keep the executive accountable and transparent, parliament possesses certain privileges, power and immunities. Indian parliament is the Gangotri of our democracy. It represents the will and the aspirations of one billion plus people and is the link between the people and the government. If Gangotri gets polluted, neither Ganga nor any of its tributaries can stay unpolluted. Parliament, like other organs of the government is not sovereign and owes its origin and authority to the Constitution. Parliamentarians must maintain highest standards of democracy. Parliament functions through debate, discussion and not through disruption...................................................................................................... 6 There are certain privileges which are enjoyed by each house of the legislature collectively and by the members thereof individually. These privileges have been given to the legislature and its members with the object to enable them to dis- charge their duties as representative of the people independently without obstruction with dignity................................................. 6 Definition of parliamentary privileges: The most universally used and accepted definition of parliamentary privilege is found in Erskine May, which defines parliamentary privilege as: “the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they cannot discharge their functions, and which exceed those possessed by other bodies or individuals............................................................................................................................... 6 The Black's law dictionary defines privilege as, "a special legal right, exemption or immunity granted to a person or a class of persons, an exception to a duty............................................ 6 Thus Parliamentary Privileges are special rights, immunities and exemptions enjoyed by the two Houses of Parliament, their committees and their members. They are necessary in order to secure the independence and effectiveness of their actions. Without these privileges, the Houses can neither maintain their authority, dignity and honour nor can protect their members from any obstruction in the discharge of their parliamentary responsibilities........... 7 Powers, privileges and immunities of legislatures in India is among the ambiguous parts of the country's Constitution, calling for greater attention and careful clarification. Since these do not concern the common man, they are rarely, if ever, discussed........................................ 7
Whenever a breach of parliamentary privilege is alleged, the matter is discussed in the legislature, or one fits committees, and the motion is ordinarily rejected. A small news item appears in the press, and the matter ends there. The case involving Mrs. Indira Gandhi in the alleged breach of privilege did attract considerable attention and press coverage in late 1979, but failed to generate comprehensive and convincing discussion of the issues raised. One wonders sometimes if even the legislatures, or their members, themselves fully know the constitutional guarantees and privileges they are entitled to or allowed in practice.......... 7 Privileges are the special rights enjoyed by an individual, or a body of individuals, which are possessed by nobody against that individual or that body, and which are exempt from ordinary law. Privileges of the Parliament fall into three categories: (i) those applying or available to the members individually against the citizen, (ii) those which apply to each House of Parliament collectively and against the citizen as well as against the individual members, and (iii) those which apply to both the Houses jointly.............................................. 7 EVOLUTION............................................................................................................................. 7 PRIVILEGES IN INDIA............................................................................................................... 9 CODIFICATION OF PRIVILEGES................................................................................................ 14 CONCLUSION......................................................................................................................... 16
Thus Parliamentary Privileges are special rights, immunities and exemptions enjoyed by the two Houses of Parliament, their committees and their members. They are necessary in order to secure the independence and effectiveness of their actions. Without these privileges, the Houses can neither maintain their authority, dignity and honour nor can protect their members from any obstruction in the discharge of their parliamentary responsibilities
Powers, privileges and immunities of legislatures in India is among the ambiguous parts of the country's Constitution, calling for greater attention and careful clarification. Since these do not concern the common man, they are rarely, if ever, discussed.
Whenever a breach of parliamentary privilege is alleged, the matter is discussed in the legislature, or one fits committees, and the motion is ordinarily rejected. A small news item appears in the press, and the matter ends there. The case involving Mrs. Indira Gandhi in the alleged breach of privilege did attract considerable attention and press coverage in late 1979, but failed to generate comprehensive and convincing discussion of the issues raised. One wonders sometimes if even the legislatures, or their members, themselves fully know the constitutional guarantees and privileges they are entitled to or allowed in practice. 2
Privileges are the special rights enjoyed by an individual, or a body of individuals, which are possessed by nobody against that individual or that body, and which are exempt from ordinary law. Privileges of the Parliament fall into three categories: (i) those applying or available to the members individually against the citizen, (ii) those which apply to each House of Parliament collectively and against the citizen as well as against the individual members, and (iii) those which apply to both the Houses jointly.
(^2) Dr. Baljit Kaushik Associate professor ,Hindu college Sonepat India, Parliamentary privileges in India : An overview.
The Government of India Act, 1919, marked the first step in the direction of parliamentary privileges in the country, though in 1860 Bengal Civil Witnesses Act had empowered legislatures to summon a person as witness. Before the Act of 1919 the functions and powers of the presiding officer in a legislature just did not go beyond regulating the course of business of the House, preservation of order there, granting permission to outsiders to the Council chamber or odering them to withdraw from there, and maintaining the records of the proceedings of the House. In other words, there was no constitutional or statutory recognition or validity accorded to privileges prior to the Act of 1919. The Act of 1935 did not change the position materially. In the intervening period between the two Acts -viz., those of 1919 and 1935- legislators both in the Central Assembly and the Provincial Councils persistently and loudly protested against having no privileges worth the name. The severely constricted and heavily burdened freedom of speech available to them failed to mollify their angry and legitimate protest and concern. The outbreak of the War in 1939, within a couple of years of the operation of the Act of 1935, completely obliterated all chances of any concession being made to the Indian legislators, and thus no further attention was paid to the question by the British Government of India. Struggling to have the same privileges as enjoyed in the British. House of Commons accorded to them and to their legislatures, the Indian legislators felt that unless it was done and the presiding officers in India got the punitive powers, they (the legislators) would be in no position to defend themselves against unwarranted, motivated, malicious and unjustified press and public criticism. And they had valid reasons for their fears and apprehensions. The press usually maligned the House and its presiding officer, gave premature publicity to legislative matter; legislators were arrested on civil and criminal charges while their House was in session; and so on. A well established and time honoured feature of parliamentary democracy is that the courts of law should not, and actually do not, prematurely interfere with the affairs in legislatures. That body itself is the sole, and final, Judge to decide upon the disputes arising from matters raised in it, and the decision of its presiding officer is beyond review or revision. The logic of the practice is quite obvious: the presiding officer represents the house, and through it the nation as a whole; it is not very desirable, therefore, for him to be hauled up, summoned by the courts for explaining or justifying the decisions and rulings he gave inside the House. Summons, or
The rule of freedom of speech and debate in parliament was established in Britain in 17th century in the famous case of Sir Johan Eliot. 4 Eliot was convicted by the court of king's Bench for seditious speech made in the House of Commons. The House of Lords reversed this decision on the ground that the words spoken in Parliament should only be judged therein. Finally the Bill of Rights 1688, laid down that the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place outside parliament. A member may thus say whatever he thinks proper within the House and no action can be brought against him in any court for this. The same principle is adopted under Indian Constitution under Article 105(1) which provides that subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. Freedom of publication: Article 105(2) contains two parts. Part one says 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. Part two provides that no person shall be liable in respect of the publication by or under the authority of House of Parliament or any report, paper, vote or proceedings. This Article is examined by the Supreme Court in Tej Kiran Jain v. N.Sanjeeva Reddy;^5 it was held that whatever is said in parliament is immune from the juris- diction of the Courts. In view of this interpretation, the notices of motions, questions, resolutions or reports of the committees are covered by the proceedings. Therefore once it is proved that the parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any Court. This immunity from the jurisdiction of the courts is complete, because it is the essence of parliamentary democracy that peoples representatives should be free to express themselves without fear of legal consequences. 6
(^4) ID. 3 states Trials ,294. (^56) AIR 1970 SC 1573. Dr. K.C. Joshi,The constitutional law of India, Central law publications. Third Edition 2016.
Very essential issues relating to parliamentary privileges have been decided by the apex court in P.V. Narsimha Rao v. State^7 , the Majority decision gave an extensive interpretation and held that ordinary law does not apply to acceptance of bribe by a member of parliament in relation to proceedings in parliament. According to Bharucha, J: “A member of parliament shall not be answerable in a court of law for something that has a nexus to his speech or vote in parliament. If a Member of Parliament has, by speech or vote in parliament, committed an offence, he enjoys by reason of Article 105(2) immunity from prosecution therefore. Those who have con- spired with the Member of Parliament in the commission of that offence have no such immunity. They can, therefore, be prosecuted for it.” The majority held that the Members of Parliament who took bribe and voted upon no confidence motion are entitled to the immunity conferred by Article 105(2) and are not answerable in a court of law for the alleged conspiracy and agreement. A Member of Parliament who took bribe but did not vote is not entitled to the protection of Article 105 (2) of the Constitution. He must be prosecuted. Similarly, the bribe givers who are also Member of Parliament or State legislatures are not protected by Article 105 (2). Their acts have no nexus to their speech or vote in parliament. They can, therefore also be prosecuted. The minority view of Agrawal, J holding inter alia, that granting or conceding immunity for an offence of bribery to Members of Parliament would be repugnant to healthy functioning of parliamentary democracy has come true. The parliament has expelled eleven Members on December 23, 2005 for accepting money for putting question in the respective House. Other privileges: Article 105(3) provided that, the privileges of the House of parliament and its members were to be those which were enjoyed by the member of the House of the Commons in England on January 26, 1950 until defined by parliament by law. In India, some legislative privileges are expressly mentioned in the Constitution while the others are recognised in the Rules of Procedure and Conduct of Business in Lok Sabha framed under its rule-making power.
(^7) (1998) 4 SCC 626, AIR 1998 SC 2120.
legislative Assembly or either House of the state legislature, unless the publication is proved to have been made with malice. Right to regulate internal proceeding : each house of parliament may make rules for regulating its procedure and the conduct of its business subject to the provision of the constitution. Article 122 makes it clear that the validity of any proceedings in parliament cannot 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 this constitution for regulating procedure or the con- duct of jurisdiction of any Court in respect of the exercise by him of those powers. 11 Right to punish members or outsiders for breach of privileges and contempt of the house: It is the right of every House of Legislature to punish its members or non-members for contempt or breach of privilege of the house. It has been established in India that a House may punish not only for the present contempt but also for the past contempt.^12 In 2007, in Raja Ram Pal v. Hon’ble Speaker, lok Sabha and others,^13 (which is infamously named as the cash for Query Scandal ) the Supreme Court of India opined that: Ÿ “AstheConstituentAssemblyofIndiadidnotwanttolimitpowersofparlia- ment, it made the specific reference of the House of Commons in England in Articles 105(3) and 194(3) and implied that the legislative bodies in India are having the powers like House of Commons in England including the power to expel its members. Ÿ ScopeofArticle105(3)and194(3)do not clash with and are consistent with the other provisions relating 'vacancy' and 'disqualification' in article 101,102 and 103 of the constitution the articles which expressly provide for the termination of membership of the legislative bodies in India. Ÿ Powertoexpeldoesnotviolatetherightofacandidatetobeinthetermofthe house for five years. Article 83 (2) of the constitution does not guarantee a candidate “a term of five years in any case or at any cost”.
(^11) See Article 208 and 212 make similar provisions with respect to the state legislature. (^1213) Prof. Narender Kumar , Constitutional law of India , Reprint ,2014 ,Allahabad law Agency. (2007) 3 SCC.
Ÿ Article105(3)of the Constitution by providing an implied power of expulsion is “itself a valid exception to the right under Article 19(1)(g)”. Ÿ Article 122 of the Constitution forbids judicial interference in “irregularity of the procedure.” It does not prohibit judicial interference in “illegality or unconstitutionality of the procedure in the House. In 2010, in Amarinder Singh v. Special Committee, Punjab Vidhan Sabha^14 a five judge Constitution Bench of the Supreme Court however, ruled that: Ÿ“The member can also expelled for acts committed by them“ outside the four walls of the House “distorting ,obstructing or diluting the integrity legislative functions, E.g. taking or giving bribe in return of asking questions or voting in the house. ŸThe content of legislative proceedings should not touch on matters which are sub judice. ŸThe implied power of expulsion by the state legislative assemblies vested in them by Article 194 (3) is not an absolute power; the judiciary can scrutinize the manner of exercise of the power of expulsion.”
Parliament in India is not sovereign and must necessarily exercise jurisdiction within the limits laid down by the Constitution following it in letter as well as in spirit. For instance, Articles and 193 are both subject to the Fundamental Rights. In a Reference made by the President the Supreme Court on 30 September 1964 held in its majority opinion : "Prima facie the power conferred on the High Court under Article 226(1) can, in a proper case, be exercise even against the legislature. If an application is made to the High Court fort the issue of a writ of Habeas corpus it would not become competent or the House to raise a preliminary objection that the High Court as no jurisdiction to entertain the application because detention is ban order of the House. The right move this court by appropriate proceedings for the enforcement of the Fundamental is itself a guarantee Fundamental Right. 15
(^14) Capt. Amrander Singh v. Punjab legislative Assembly, MANU/SC/0298/
consequent curtailment of the rights of the people, while at the same time including laws concerned with them in the non-justiciable IX Schedule of the Constitution: and asking a blank cheque in the matter of privileges for themselves is rather unbe coming, undesirable on the part of our legislators. M N Kaul, Secretary of the Lok Sabha, circulated a note to the Presiding Officers Conference held in August 1950, in which he expressed the fear that by codification "all matters would come before the courts and Parliament would lose its exclusive right to determine matters relating to its privileges";" such considerations go against the spirit of our Constitution.
Judicial review is, in fact, most desirable in a democracy. Let the courts examine the codifying/codified law pertaining to privilege and crystallize the position: what is repugnant to the Constitution must be settled for all times. If it is in conflict with Fundamental Rights, let the principle of harmonious construction be applied by the courts. Moreover, that the Parliament is the sole judge and interpreter of its own privileges violates flagrantly the basic principle of natural justice: a party cannot, and should not be adjudicator in its own cause and case. Further, as Palkhiwala, questioning the concept of "sovereignty" of Parliament as anomalous, The laws solemnly passed by a legislature can be declared void by the court, but a mere resolution of the legislature committing or imprisoning a citizen would be beyond the challenge if the legislature chooses not to set out the facts or reasons in the resolution".^17
Article 105 clause (3) and Article 194 clause (4) are enabling provisions for defining the powers, privileges and immunities of each house of the legislature as well as its members and committees. The “other privileges “are not still defined by proper legislation in India but they are incorporated in the Rules of procedure and conduct of business in Lok Sabha and rules of procedure of Rajya Sabha.. The uncertain and abstruse nature of parliamentary privileges in India is aptly described in 2002 by the National Commission to Review the Working of the Constitution. The commission recommends that the time has come to define and delimit (^17) OUR CONSTITUTION DEFACED AND DEFILED (1974) p. 85.
privileges deemed necessary for the free and independent functioning of parliament. It should not be necessary to run to the position in the House of Com- mons every time a question arises as to what kind of legal protection or immunity a member has in relation to his work in the House. Thus it is concluded that there is an overdue period still waiting to define explicitly by legislation the exact nature, scope and range of “other privileges of legislative bodies in India.
