In this article, Sheetal Sharma of School of law, KIIT university discusses parliamentary privilege and laws governing parliamentary privileges in India.
Parliamentary privileges are defined in Article 105 of the Indian Constitution. The members of Parliment are exempted from any civil or criminal liability for any statement made or act done in the course of their duties. The privileges are claimed only when the person is a member of the house. As soon as he ends to be a member, the privileges are said to be called off. The privileges given to the members are necessary for exercising constitutional functions. These privileges are essential so that the proceedings and functions can be made in a disciplined and undisturbed manner.
The privileges individually enjoyed by the members are
Freedom of speech in parliament
The members of the parliament have been vested with the freedom of speech and expression. As the very essence of our parliamentary democracy is 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 guaranteed to a citizen under Article 19(2) is different from the freedom of speech and expression provided to a member of the parliament. It has been guaranteed under Article 105(1) of the Indian constitution. But the freedom is subject to rules and orders which regulates the proceedings of the parliament.
This right is given even to non-members who have a right to speak in the house. Example, attorney general of India. So that, there is a fearless participation of the members in the debate and every member can put forward his thought without any fear or favour.
Some limitations are also present which should be followed in order to claim immunity
- Freedom of speech should be in accordance with the constitutional provisions and subject to rules and procedures of the parliament, stated under Article 118 of the Constitution.
- Under Article 121 of the Constitution, the members of the parliament are restricted from discussing the conduct of the judges of the Supreme Court and the High Court. But, even if this happens, it is the matter of the parliament and the court cannot interfere.
- No privilege and immunity can be claimed by the member for anything which is said outside the proceedings of the house.
Freedom from arrest
The members enjoy freedom from arrest in any civil case 40 days before and after the adjournment of the house and also when the house is in session. No member can be arrested from the limits of the parliament without the permission of the house to which he/she belongs so that there is no hindrance in performing their duties.
If the detention of any members of the parliament is made, the chairman or the speaker should be informed by the concerned authority, the reason for the arrest. But, a member can be arrested outside the limits of the house on criminal charges against him under The Preventive Detention act, The Essential Services Maintenance Act (ESMA), The National Security Act (NSA) or any such act.
Freedom from appearing as a witness
The members of the parliament enjoy special privileges and are exempted from attending court as a witness. They are given complete liberty to attend the house and perform their duties without any interference from the court.
Privileges enjoyed by the members collectively as part of parliament
Right to prohibit the publication of proceedings
As stated in Article 105(2) of the Constitution, no person shall be held liable for publishing any reports, discussions etc. of the house under the authority of the member of the house. For paramount and national importance, it is essential that the proceedings should be communicated to the public to aware them about what is going on in the parliament.
But, any partial report of detached part of proceedings or any publication made with malice intention is disentitled for the protection. Protection is only granted if it reflects the true proceedings of the house. If any expunged proceedings are published or any misrepresentation or misreporting is found, it is held to be the breach of the privilege and contempt of the house.
Right to exclude strangers
The members of the house have the power and right to exclude strangers who are not members of the house from the proceedings. This right is very essential for securing free and fair discussion in the house. If any breach is reported then the punishment in the form of admonition, reprimand, or imprisonment can be given.
The right to punish members and outsiders for breach of its privileges
The Indian Parliament has the power to punish any person whether strangers or any member of the house for any breach or contempt of the house. When any breach is committed by the member of the house, he/she is expelled from the house.
This right has been defined as ‘keystone of parliamentary privilege’ because, without this power, the house can suffer contempt and breach and is very necessary to safeguard its authority and discharge its functions. This power has also been upheld by the judiciary in most of the cases. The house can put in custody any person or member for contempt till the period the house is in session.
The right to regulate the internal affairs of the house
Each house has a right to regulate its proceedings in the way it deems fit and proper. Each house has its own jurisdiction over the house and no authority from the other house can interfere in regulation of its internal proceedings. Under Article 118 of the Constitution, the house have been empowered to conduct its regulation for proceedings and cannot be challenged in the court of law on the ground that the house is not in accordance with the rules made under Article 118. The Supreme Court has also held that this is general provision and the rule is not binding upon the house. They can deviate or change the rule anytime accordingly.
Punishments prescribed for breach of privileges or contempt of the house
- Imprisonment – If the breach committed is of a grave nature the, punishment can be given in the form of the imprisonment of any member or person.
- Imposing fine – If in the view of the parliament, the breach or contempt committed is of economic offence and any pecuniary gain has been made from the breach then, the parliament can impose fine on the person.
- Prosecuting the offenders – The parliament can also prosecute the one committing the breach.
- Punishment given to its own members – If any contempt is committed by the members of the parliament then, he is to be punished by the house itself which could also result in the suspension of the member from the house.
What constitutes parliamentary breach or contempt of the house?
There is no codification to clearly state that what action constitutes a breach and what punishment it entails. Although, there are various acts which are treated by the house as the contempt. It is generally based on the actions which tend to obstruct the proceedings of the house and creates a disturbance for the members. Some of them are briefly discussed.
Giving any misleading statement in the house
The acts which are done solely with the purpose to mislead are considered as the contempt of the house. If the statement is made by a person who believes the information to be true then, there is no breach involved. It has to be proved that the statement was made with an intention to mislead the house.
Disturbance by the outsiders
Any disruption created by shouting slogans or throwing leaflets etc. with the purpose of disturbing the proceedings of the court is regarded as a major contempt by the house. The person is imprisoned by the house for a specified period of time or a warning is given depending on the seriousness of the case.
Any kind of assault on the members
Here, the privilege is available when the member is performing his duties. An assault done by any person on the member of the parliament in the course of performing his duties is treated as contempt of the house.
Writings or speeches about the character of the member
any speech published or libel made against the character of the member is regarded as the contempt of the house. These are regarded to be necessary because it affects the performance and function of the member by reducing the respect for him.
So, clearly, any attack on the privilege of the members by any means is considered as a breach of the privilege and the parliament can take action regarding the same.
Freedom of press and the parliamentary privileges
The parliamentary privileges restrict the freedom of the press, which is a fundamental right. Caution to a great extent has to be taken by the press while publishing any report of the proceedings of the parliament or the conduct of any member. There are instances where the press can be held liable for the contempt of the house
- Publishing any matter concerning the character of any member of the parliament
- Any pre-mature publication of the proceedings
- Misreporting or misrepresenting the proceeding of the house
- Publishing the expunged portion of the proceedings
In spite of the fact that the freedom of the press is subject to the parliamentary privileges, certain enactments have been made for the protection of the freedom of the press. If the fundamental right is being violated, there is no meaning of democracy. The freedom of the press has to be protected because we need to be informed about the acts of our representatives. Parliamentary Proceedings (protection of the publication) Act, 1977 protects the rights of the press under certain given circumstances
- The reports of the proceedings are substantially true.
- The report is made without malice.
- The report is made for public good.
- The report should not constitute any secret meeting of the house.
Codification of the parliamentary privileges
Our Indian parliament enjoys supreme powers as being a member of the parliament. There is also misuse of the privileges given to them because they do not have many restriction on the rights. They have the power to be the judge of their own proceedings, regulate their proceedings, what constitutes the breach and what punishment should be given for the breach, are solely decided by them.
The power vested in them is too wide as compared to the fundamental rights vested in the citizens. With no codification of the privileges, they have gained an undefined power because there is no expressed provision to state the limitations on their powers. The privilege from any civil arrest 40 days before and after the session and during the session results that they are exempted from arrest for even more than 365 days. No comprehensive law has been till date enacted by the parliament for the codification of the parliamentary privileges.
It is mostly resisted by the members because then it will be subject to the fundamental rights and would be in the purview of judicial review. Justice M.N. Venkatachaliah heading the Constitution Review Commission also recommended to define and delimit the privileges for the free and independent functioning of the legislature. This is based on the apprehension that codification will involve interference of the court as the matters would be presented in the court of law. Non-codification of privileges has led to greater powers being enjoyed by the members. But, now the time has come to codify and define the privileges and actions must be taken so that there is smooth functioning of the parliament without any conflict.
Judicial review of the parliamentary privileges
The Indian judiciary has been vested with the responsibility of the protection of the fundamental rights. Parliament members claim absolute sovereignty over their powers and in any case does not want the judiciary to interfere. But, the judiciary is regarded as the guardian of our Constitution and it cannot sit quietly if any fundamental right of a citizen is violated due to privileges or when there is an escape from any criminal liability.
The judiciary has to take a stand on the wrongs committed by the members who are taking the shelter of the privileges. The Supreme Court in Keshav Singh’s case observed that the privileges conferred on the members are subject to the fundamental rights.
The Supreme Court has also held that any conflict arising between the privileges and the fundamental rights would be resolved by adopting harmonious construction. The judiciary is very well aware of the fact that it does not have jurisdiction over parliamentary matters but it is necessary for the society that any violation should be resolved by the court as it deems fit.
Parliamentary privileges and the principle of natural justice
In a recent judgment by the Supreme Court judges in the case of Algaapural R. Mohanraj v Tamil Nadu Legislative Assembly, it was held that the principle of the natural justice cannot be violated by the privilege committee.
Facts of the case
On 19-02-2015, some members of the Tamil Nadu Legislative Assembly was suspended on the ground of unruly conduct. In furtherance of this, a privilege committee was formed to inquire about the conduct of the members and further proceedings related to breach of privilege. It was found and recommended by the take necessary action against six members for the breach of privilege.
By a resolution dated 31-03-2015, the members were suspended for a period of ten days for the next session. Further it was extended to cutting of their salaries and giving any other benefit till the suspension period. A writ petition was filed by the members in the Supreme Court under Article 32 of the Constitution.
Contentions raised by the members
The contention was raised by the petitioners that their fundamental rights under Article 19(1)(a), 19(1)(g), 14 and 21 of the Constitution have been violated by the said resolution.
Judgment by the court
The court rejected the contention of the petitioners that the resolution violated Article 19(1)(a) and 19(1)(g). It further accepted the contention that the rights was violated under Article 14 of the Constitution. The court observed that the video recording which showed the act of the members amounting to the breach was not presented before the petitioners. If it would have been presented then they might had the chance to explain their conduct. It was further directed by the court to restore the salary and other benefits of the petitioner.
The privileges are conferred on the members for smooth functioning of the parliament. But, these rights should always be in conformity with the fundamental right because they are our representatives and work for our welfare. If the privileges are not in accordance with the fundamental rights then the very essence of democracy for the protection of the rights of the citizen will be lost. It is the duty of the parliament not to violate any other rights which are guaranteed by the constitution. The members should also use their privileges wisely and not misuse them. They should always keep in mind that the powers do not make them corrupt. The parliament cannot adopt every privilege that is present in the house of commons but should adopt only those privileges which accordingly suits our Indian democracy.