Indian Constitution and Parliamentary Privileges Anjali Dixit, Asst. Prof., Kanpur University BASICS OF LAW Fri, Mar 27, 2020, at ,08:47 PM Definition and Scope of Privileges A simple definition of privilege is that it is an exceptional right or exemption. In its legal sense it means an exemption from some duty, burden, attendance or liability to which others are subject. In Parliamentary language, however, the term applies to certain rights and immunities enjoyed by each House of Parliament collectively, and by members of each House individually without which they cannot discharge their functions. India in the case of Raja Ram Pal v Hon’ble speaker defined the term privilege as “A special right, advantage or benefit conferred on a particular person. It is a particular advantage or favor granted to one person as against another to do certain acts”. Inherent in the term is the idea of something, apart and distinct from a common right which is enjoyed by all persons and connotes some sort of special grant by the sovereign. The object of Parliamentary privileges is to safeguard the freedom, the authority and the dignity of Parliament. Privileges are necessary for the proper exercise of the functions entrusted to Parliament by the Constitution. They are enjoyed by individual members, because the House cannot perform its functions without unimpeded use of the service of its members, and by each House collectively for the protection of its member and the vindication of its own authority and dignity. 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. Article 105 (1) provides that there shall be freedom of speech in parliament. This freedom is however subject to rules regulation the procedure of the house. For instance under Article 121/212 the conduct of a judge of the Supreme Court or High Courts cannot be discussed in parliament or state legislatures. Rules may forbid the use of unparliamentarily language. Article 105(2) provides that no member of parliament shall be liable to any proceedings in a court of law in respect of anything said or any vote given by him in parliament or any committee thereof. Thus Article 105(2) provides absolute immunity to MP’s from any proceedings in a court of law. Article 105(3) does not grant any specific privilege. It give to Parliament and State Legislatures all the privileges enjoyed by British House of Commons as on 26 January 1950. Article 105(3)/194(3) contains a clear mandate to the legislature to codify the privileges. Article 194: Powers, privileges, etc., of the House of Legislatures 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 proceedings 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 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. Hence from the above 2 different Article of the Indian Constitution, it can be inferred that the position of the state legislature is the same as those of the house of parliament. Therefore Article 105 applies Mutatis Mutandis to the state legislature as well. Both articles expressly mentioned two privileges namely- freedom of speech and freedom of publication of proceedings. The privileges individually enjoyed by the members are Freedom of speech in parliament (Article 105 (1)& 194 (1)) 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. It has been held in K. Anandan Nambiar v. Chief Secretary, Governor 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. 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. In Pandit M.S.M Sharma v. Shri Krishna Sinha, popularly known as Searchlight case 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 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 (Art. 105(2), 194 (2) & 361- A) 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 Parliamentary privileges under clause 3 are not codified. Does Power of Judicial review extend to parliamentary privileges? Article 122/ 212 of the Constitution reads The validity of any proceedings in parliament shall not be called in question on the ground of any alleged irregularity of procedure. No Office or member of parliament in whom powers are vested by or under this constitution for regulating procedure or the conduct of business, or for maintaining of any court in respect of the exercise by him of those powers. In M S M Sharma Vs. S K Sinha (AIR 1959 SC 3993)(also known as search light case) The SC held that parliamentary privileges shall not be subject to Art. 19(1)(a) of the Constitution. In this case SC held that “ freedo of speech in legislature contained in Art. 194(1)/ 105 910 being specific as against the general freedom of speech under Art. 194(1) . ” P V Narsimha Rao vs. State, (1998) 4SCC 626 SC held that Art. 105 (2) the activity of bribe taken by an MP is in respect of anything said or any vote given by him in parliament and anything would mean everything including accepting a bribe and so Rao could not be prosecutes in a Court of Law. Privileges And Fundamental Rights In Gunupati Keshavram Reddi v. Nafisul Hasan,[ AIR 1954 SC 636]one Homi Mistry was arrested at his Bombay residence under a warrant issued by the Speaker of U.P. Legislative Assembly for contempt of the House and was flown to Lucknow and kept in a hotel in Speaker’s custody. On his applying for a writ of habeas corpus on the ground that his detention was in violation of Article 22(2), the Supreme Court quashed the detention and ordered 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 fundamental right guaranteed under Article 22(2) in Part III of the Constitution. However, in M.S.M. Sharma v. S.K. Sinha[AIR 1959 SC 395] 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 support of his contention, the petitioner relied on the Supreme Court’s decision in Gunupati Keshavram Reddi v. Nafisul Hasan. But, in Sharma’s case, the Supreme 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 Re Under Article 143,[ AIR 1965 SC 745]the Supreme Court explained the proposition laid down in M.S.M. Sharma case and said: ‘We do not think it would be right to read the majority decision as laying down a general proposition that whenever there is a conflict between the provisions of the latter part of Article 194(3) and any of the provisions of the fundamental rights guaranteed by Part III, the latter must always yield to the former. The majority decision, therefore, is taken to have settled only that Article 19(1)(a) would not apply and Article 21 would.’ 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 the power to summon members or strangers before it. Refusal to appear or to answer or to knowingly to give the false answer is itself a contempt. The committee’s recommendations are reported to the House which discusses them and gives its own decision. Privileges And The Law Courts The conflict between legislative privileges and the law courts came to be resolved by Supreme Court in In Re Under Article 143[AIR 1965 SC 745], 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. Legislative Assembly reprimanded him for contempt and breach of the privilege of the member Mr. Narsingh Naraina Pandey. On the same day, Mr. Keshava Singh, who was present in the house, by his conduct, committed another contempt in 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 7 days and he was so detained. Mr. Soloman, his advocate, moved under Section 491 CrPC read with Article 226, a Habeas Corpus petition alleging that his detention in jail was illegal and malafide because he was not given an opportunity 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, by a resolution took the view that the 2 Judges, Mr. Keshava Singh, and Mr. Soloman had committed Contempt of the Assembly and ordered that the Keshava Singh be immediately taken into custody and the 2 Judges and the Advocate be brought in 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 that it be set aside and its implementation be stayed by the interim order. 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 withdraw, 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. At this stage, the President referred the matter to the Supreme Court, invoking the provisions of Article 143(1), for obtaining its advisory opinion. The main questions referred to were- Whether the legislature is the sole and exclusive Judge of its privileges and whether it is competent to punish a person for its contempt taking place outside the Legislature? Whether the High Court who entertained a petition of habeas corpus challenging the validity of the detention of a person sentenced by the assembly under a general or unspeaking warrant has committed contempt of the Legislature? The Supreme Court by a majority of 6:1 held that the 2 Judges did not commit the contempt of the house by issuing an interim bail order. The Court explained that the Court under Article 226 had jurisdiction to order the release of a person from illegal detention. The Court said that the courts in India could examine the validity of detention of a person, sentenced by the Assembly, under a general or unspeaking warrant. The Courts in England cannot examine the validity of the general warrant issued by the House of Commons. Referring to this, the Court said that “such a right was not conferred on Legislatures in India. The House of Commons is a part of the High Court of Parliament as a superior Court and as a result, the general warrant issued by it cannot be subjected to scrutiny by the other superior Courts. Legislatures in India never discharged any judicial functions and their historical and constitutional background does not support the claim to be regarded as a Court of record. Therefore, the very basis on which the Court in England treats a general warrant issued by the House of Commons is absent in India.” Article 226 confers wide power on the High Court to issue the writ of habeas corpus against any authority which under Article 12 included the Legislature. Article 121 prohibits any discussion in a State Legislature on the conduct of any Judge of the Supreme Court or High Court in the discharge of his duties. The court further opined that it could not be disputed that in the matters of privileges, the House was the sole and exclusive Judge provided such privilege could be found in Article 194(3). The question whether a privilege as claimed by the House was provided by Article 194(3) or not, was a matter for the Court to decide. The nature and scope of Article 194(3), was thus, to be determined by the Court. The question whether the privileges enjoyed by the Legislature under the latter part of Article 194(3) were subject to the provisions of Part III relating to fundamental rights, was left undiscussed. However, the Court observed that such privileges were necessarily subject to Article 21 and 22 of the Constitution. Author ANJALI DIXIT ASSISTANT PROFESSOR FACULTY OF JURIDICAL SCIENCES RAMA UNIVERSITY KANPUR